may please the court those in council there are at least three issues that i would wish to address here in the course of this moral argument the first is the impact that a non parent jury instruction had on the jury's ability to appropriately deliberate and give weight to a piece of evidence admitted in this case now as the writers might recall during the course of this trial a text message was admitted over defense of jackson for a limited purpose that limited purpose was for the fact that it had on the defendant heather blame if in now we don't say we don't disagree that a trial court within their discretion has the ability to offer a non pattern instruction but in people the bush the only supreme no pattern jury instruction for this your honor in this case because it was a limiting instruction given for a text message they were attempting to instruct the jury as to what weight they were to give that particular piece of evidence it  was admitted for the limited purpose of showing the effect on the defendant had to remain however if you read the specific instruction itself it gets confusing as to what way the jury this to give this particular instruction with the fence counsel given  i'm what section a which he was around or off the top of my head my recollection of this is that the instruction which was ultimately given was not one which the fence counsel agreed with though the particulars of the language i don't have the record citation for the court on that particular matter but that is my recollection in this case now hours or alternate instruction or so to stretch and offer them i do believe that the knowledge of it struction was given and that was provided by defense counsel however the trial court did not offer that particular structurally you think that defense counsel came up with an instruction that gave it to them that's correct i did not see that it were in the record it for my recollection of reviewing that and certainly your honor so that could be honor will allow the particular instruction which we've taken issue with is the non parent instruction and in this case when you look at that particular instruction as we've submitted in our brief the instruction itself has an particular instruction it states on the one hand that it is to be used to be a fact that those attacks had upon the defendant heather lamie if any and then continues on the state as it relates to show her state of mind now people be bush stands for the proposition that if there is a conflict as to what the instruction is to do or what the jury is to do with the weight of the evidence which is brought in that is reversible error in this instance this particular instruction could lead to a reasonable juror to believe that on the one hand they can use that text message from the fact on the defendant and on the other hand to show her state of mind that is the conflict which we believe exists and certainly the issue which we take with this is that conflicting instruction deals with a very contentious piece of evidence which was admitted over defense objection in this case and the way that the jury is to give that particular instruction is important to the outcome of this particular matter what about the statement in the impeachment evidence isn't substantive that in your honor i believe that the ruling the trial court made in this instance was that it was not being offered for its truth as substantive evidence but rather for the limited purpose to show the effect that it had on the defendant and that was the ru the trial or may so in drafting this particular limiting instruction they were attempting to comply with the court's ruling in drafting it so that we the jury give you appropriate way to be evidence which was allowed to be and brought up before the jury way the state submitted an instruction i did the court rejected the state's version i do believe that the instruction which ultimately was given to the jury was one that was drafted by the trial court itself but certainly the issue which we take with it is that we believe that instruction conflicts with the law that they are to apply and it's confusing to an extent that a reasonable juror would not know what weight to actually give this particular piece of evidence which would warrant reversal in a room and in this particular instance are there any other questions with respect to that particular issue  proceeding on the second issue in this particular case we also have articulated in our brief the error that occurred in protecting the constitutional right to a fair and impartial jury in this case now through this particular instance the court will recall that two different instances during the course of this trial there were issues raised that called into question the impartiality of the jury the first instance came briefly after the jury wasn't panel and a note came up to the trial court to address some concerns about what was occurring in the deliberation room right before opening statements now we stand for the proposition that the trial court has an affirmative obligation to protect the constitutional rights of the defendant and in this instance that constitutional protection required the court to inquire in more detail to what exactly occurred in that deliberation room and they failed to do so they did bring out that offending jerk and requesting that individual about some service or cursory issues but they failed to specifically ask him what exactly was said in that deliberation now there's some passing reference made by the juror himself that's in the record and it's noted in opposing counsel brief but we believe that they had an obligation to them question the actual juror who wrote that note to determine whether or not they were impacted by the statements which were made in the judge your honor i think part of the problem is that's all that was rock inspired that juror no specific inquiry was made of him as to hey what did you specifically say back there and no references made to well as the defense counsel in this case and they did not have a copy of that note to be made a part of the record for us to argue here today i'm not sure the record which this court received did include that particular note but we did have we did reference regarding the moaning of the law on it and i think it was the babysitting but that was something that was a product or an argument it was also something that they that came up from that particular juror he made some references with respect to that but nobody ever actually read the contents of the note into the record therefore we don't know what the specific comments that were made were i think that the court had an affirmative obligation to inquire of this other unknown juror that obviously felt so impacted by what was s back there that they needed to warn the court about what was going on part of why i think that this is important is because we do know later on during the course of this trial that two other jurors had to be removed for cause for prejudging this case now at that point we don't know if sitting here today having reviewed the record whether any of this is related to one another but certainly the mere question regarding the impartiality of a jury in a murder case that calls into question whether or not  attacked there was nothing the record mr linker to reflect any relationship between the two jurors being removed and mr less yes and those jurors were removed because they were common in open court while there was any connection between the conduct of those two jurors and what this particular offending juror stated before the opening statements even occurred i think what we do know is that it shows an objective basis that there is some impartiality issues on this particular jury now i think an inquiry needed to be certainly the trial court at this point is aware of at least two issues that have arisen of jack to play through this process that could call into question the impartiality of the jury as a whole but they failed to inquire of the other jury members as to whether or not there was any issues the case i've cited in my brief people the smith does reference the court's obligation to consider prejudicial content but then most importantly consider the fact that that prejudicial content had on the impartiality of the other jurors i think that's the issue for for us here today what was the presidential common conduct first and then two did the court attempt to inquire in any way as to whether this conduct or content impacted the impartiality of the remainder of the jury panel if the fans asked or unfortunately no your honors and as you look through my brief another issue which we do raises a point of ineffective assistance of counsel in an argument which we set forth in a forth in our brief is that that was an effective on of the trial counsels are by not requesting the jury at the trial court to actually make that inquiry so one at the very least the record could be perfected about what potential impact these these particular matters had on the impartiality but at the very least to render appropriate opinions to give the trial court the right opportunity to make the right call about the jury panel as a whole  particularly here for us when we're looking at this we know that the mere possibility of prejudice is sufficient to grant a new trial in a murder case and in this instance there's two objective basis for which this court could say there's a problem with the impartiality of this jury and certainly in this instance a new trial could be warranted on the scrolls are there any other questions with respect to the impartiality impartiality issue or ours moving into the  argument which we wish to address today is the issue regarding the cumulative error of certain statements made by the prosecutor during closing arguments and what impact they would have had on the defendant's conviction in this particular case were referencing particular comments which were made the first is an apparent mischaracterization of the law to be applied to the facts in this case what we're talking about there is in this instance we know that the instruction provided to the jury for deliberation purposes was a count of first degree murder which required the state to both argue and prove that the defendant acted knowingly in the conduct that arose however through the course of prosecutor's closing argument they reference the defendant's conduct sound now as you cited in our brief and as you can read from a cursory review of the record that term snapping comes up numerous times throughout the closing argument and it's brought up in context with the prosecutor making an argument similar  attend to the fact that the defendant actually lost control the prosecutor states that they don't have to prove intentional or premeditation that the defendant in this case is not a cold blooded killer but  arguing this actions on the part of the defendant that she snapped or lost control lost her temper we do argue that they're arguing more of a mental state to involuntary manslaughter as opposed to the knowledge element or mental state requirement for that a first degree murder because they argue that she snapped or lost control through the course of this conduct but the only instruction in front of the jury is that a first rate murder or knowledge then it becomes an improper argument as to the mental state intent language that certainly changes the the argument itself but arguing that she just snapped alone lost control attempts to fill a gap that the prosecution knows it has in this case that gap is that  prior to the text message introduction there's no evidence that's been abused to trial that there was any abuse in this household that there was anything with respect to why this particular defendant would have committed this act on this day the prosecution recognizes this jack that they are going to need to argue that this person's actions rose to a level of that day where they knowingly acted in this regard and i think purposely avoided using that term knowledge as much as possible during the course of closing and instead argue that her actions or it came to this snapping i think the reason for that is they recognize that the evidence is not particularly strong to her acting knowingly in this regard the issue we have with this particular argument is we think that this argument is more closely affiliated with an involuntary manslaughter instruction no request was made for an involuntary manslaughter instruction and they were certainly was no involuntary manslaughter instruction given to the jury in this particular case looking further the statements made by the prosecutor regarding the text message that we've already referenced here today with the limiting instruction of beat her ass that becomes important because i think our argument is that we're not looking at any one of these errors in a silo but rather the cumulative effect that these errors would have had on the defendant's conviction in this case that text message be harassed as we practiced was offered for a limited purpose and during the course of the closing argument the prosecutor references he beat her ass language by basically rotten saying that this was a directive given by the defendant's husband and that she ultimately acted upon this directive when she committed this offense flies in the wind of the actual evidence which was of use to trial certainly when we consider that a reference to a text message which was admitted for a limited purpose must be put into the context for which was admitted and nothing more and in this case it was offered for the limited purpose of the effect on the listener if any by arguing that the text message beat her ass somehow shows the well call it character culture of this home is being an abusive home assisted the prosecution in bridging that gap which we already referenced earlier regarding why somebody would commit this particular offense for how this particular offense would have got to the point where the person knowingly acting in such a way as to cause great bodily harm or death by in our brief we have certainly referenced the case of people v robinson where in that court although in an opposite result from the one we are seeking here in that case the appellate court rendered an opinion that because the text message or i apologise because the statements which were often for a limited purpose were always viewed in the context for which they were offered by the prosecutor it did not offend the limiting instruction it did not go beyond the purpose for which that particular piece of evidence was admitted now in this case we argue that they have failed to actually come to find that language with a limiting instruction and as a result it's fair in conclusion to this matter your honor so we believe that there is sufficient cumulative error in the prosecutor's arguments to render a decision that even if each one of these particular issue silo is insufficient to warrant a new trial the cumulative effect of these errors is sufficient and a murder case such as this the case of people be blue stood for that exact proposition and that's the proposition which we've cited to the court here today that you could essentially render that all of these errors we have raised by themselves or harm certainly we would assert that they are not harmless but ultimately when you consider them in the totality and you consider them in light of the as for the jury instruction issue i cited people versus banister the illinois supreme court case stating that jury instructions should not be misleading and confusing of course are correctness depends not on whether defense counsel can imagine a problematic meaning but whether ordinary persons acting as jurors would fail to understand them so important in this case because it's it takes a lot of jumping through hoops to even come up with a misleading or problematic meaning with the subject instruction here the text messages sent from josh let me cellular phone to heather lamie cellular phone or not admitted for their true and your not to use them as evidence against the defendant heather lamie and determining her guilt or innocence is techs are not submitted as substantive evidence rather they only to be used by you for the limited purpose to show the effects of those attacks had upon the defendant if any only as it relates to show or state of mind at or about the time the text exchange took place defense counsel's argument seems to be that this was too comprehensive or too specific of a limiting instruction i would argue that the only reasonable interpretation of this instruction is exactly as the plain language of the instruction expresses it's also important to look at all of these issue with the remembrance that all of the evidence against defendant in this case was overwhelming that was the first argument whether it was a directed verdict argument or sufficiency of evidence argument was unclear by the pipes however it's clear that the evidence against defendant was be argued that her husband would be supportive of her using corporal punishment and that the words beat their ass is the language that's often used in relation to you going to get a swat across than her feelings or if anything this shows a rejection of the suggestion by the husband to be asked at any rate any possible prejudice or in an improper way to apply these text messages was clearly the the the limiting instruction was not problematic the limiting struction was specific and  any possible prejudice that could have happened admitting these text messages which i would submit they were completely admissible because they weren't they couldn't possibly have been admitted for the truth of the matter asserted because no truth was asserted they  were the is the subject the most focused on facts being the beat her ass one still was not they didn't say beat her ass like you always do or i can't believe you beat her ass or anything like that it was a suggestion or a man which was promptly rejected by th in that text exchange however the coded value was high it can it clearly showed i asked about whether it was confused ok but the point of the text messages even being admitted was to show definit state of mind which they did it showed an increasingly frustrated and angry defendant based on her four year olds on really behavior by the way the last text message was sent in twelve forty and it said that the that he on a third dog food everywhere the nine one one call was seven minutes later from defendant saying that he thought i was unconscious so clearly any abuse happened in that seven minute window which defend it was the only adult in the house at the time and the only person capable so his his relationship with the state's attorney here was during for a year this was before the trial started it was clearly on the record and it wasn't a time when the jury was already picked or anything like that he stated state's attorney has eaten in my restaurant many times over thirty years more than thirty years that i've owned it this is a small town pontiac  can you imagine for a moment sitting on the other side if you had been to since counsel would you have wanted it or would you have asserted justice you really need to go further into this what he said at this moment he's conceding what he said the question is if he had any effect on you know your i mean there is nothing in the right must have been some effect of the no it was i think they wanted to be reasonable person wants to be completely up front and forward about whatever kind of connections are connected by the state's attorney or the defense counsel one juror and potential jurors in this case the pictures well there was nothing babysat the state's attorney when he was a child and apparently you motives on which is what he talked about in the jury there's nothing in the record to suggest any kind of influence or any kind of impartiality or failure  impartiality by jury lets us in the no jury let's all stated unequivocally that he would be fair and impartial again act on the second round of questioning there was nothing to suggest that he wasn't fair and impartial  just making this stuff i presume the trial court addressed the contents of the note when they brought her let's also out which was only that he had had his yard mowed by the judge thirty i'm not sure whether you're just totally missing i'm not concerned about his candor when he's finally brought back out my question is or a question that could be asked if i had been out i would have wanted to know what in fact jersey less those banding this stuff about in the conference room or in the jury and discussing his connections with these asking the judge to inquire further i would say that that would be i would say that the state would argue against that and that would be ultimately rejected because nothing in the record suggests any impartiality the only thing that the of the point is you make a record the point is defense counsel fails to make a record of watchmaking the request to the judge might have been happy to comply but as you might see me you're right we probably should know a little bit more about this and i would s any kind of extensive knowledge was extracted by questioning her left self and there was no need to question the jury not the less ost know what effect his comments had on the rest of the jurors i don't see how i can strong community member i eat whatever really she makes or current i would i think that would be in the know it was not in the know there's nothing in the record to suggest that was in the know here's there's nothing in the right that's like saying what somebody reports about a contract is what's the letter what really was in the contract proposed it isn't it is inexcusable not to have gotten that the content of that notice explicitly in the record and i think it's a problem that he didn't pursue further and doesn't mean that the state loses i just need in the context of the case the process that occurred those things should've been done and i would i would argue that the is impartial is on the party challenging that here which the party was never of germs never even challenged at this point the mere support the mere suspicion of partiality is not enough this will settle as for the text message of the emperor for proper remarks for the elements of murder the prosecutor did not mischaracterize the elements of first degree murder he specifically went through the element to first degree murder so the question is strong probability did defendant know that her acts were going to cause this great bodily harm how would they not piano was thirty nine and a half inches tall and weighed less than fifty pounds any force being exerted upon of their strong delivery of those going to cause great bodily harm this was not a mischaracterization of the first degree murder the point of defendant snapping was merely the narrative theory of the case from the prosecution from the beginning defend it was growing increasingly frustrated and angry at the four year old behavior she irrationally snapped causing this severe abuse because she snapped doesn't mean that she didn't know when lee was this severe abuse and the elements of first degree murder were laid out clearly the jury was properly instructed on the elements of first degree murder and the prosecutor did not fail or did not miss characterize the first degree murder elements he did it the exact opposite actually as for the arguing the truth of the matter of josh's text messages josh is the husband in this case during closing mark closing argument this is all the prosecutor stated the girl is getting battered battered the girl is getting beaten the text was beat her ass i don't think that would be a good idea at this point but once it is a good idea then this is what happens clearly what he's saying the narrative she gets a text peter asked but then she says i don't think that would be a good idea then the narrative theory kicks in but when it is a good idea obviously this is the horrible result that happened this is not arguing the truth of the matter then i'm going to finish closing argument counsel stated quote josh did not mean be harassed i don't know what evidence is from based on but that's what he said and in fact county council quote can't think of anything but he had meant less so clearly defense counsel opened the door to the meaning of josh's text message by rejecting the plain language of that text the prosecutor then in rebuttal commented as he was allowed to do based on the defense counsel opening the door he did then commented further on the text message however this was clearly allowed based on the defense counsel opening the door to this very subject he was not arguing the truth of the text message he was commenting on his counsel's argument doesn't  based on defense counsels are proof argument prior saying he didn't mean he didn't mean beat her ass there's nothing he could have meant less that's what defense counsel stated in his closing argument thereby opening the door for a jury was properly instructed with the standard instruction that opening and closing are evidence and it's well settled but that can cure improper prosecutorial or defense counsel remarks an argument especially when it in this case it's a few a few sentences in rebuttal argument of a very long and complex overall closing argument so it's the last thing the jury hears well i don't think it was the last two sentences o what i mean that i don't think that was very yes i don't think that was the case because it was a comment on defense counsel specific closing argument if you would if you would have meant if you wanted to say that he would use an initial closing argu the only thing he said in the initial closing argument was the evidence that he didn't argue the period i was actually more advantageous to say well so he was counting on the defense counsel no he did it spontaneously by doing it spontaneously because the other side if you see the opportunity to do it doesn't mean that it's either ok or that it's weak at any rate it's powerful at any rate this was clearly commenting on an open door and the jury instruction properly limited that prejudicial impact of any improper remarks anyway it clearly doesn't rise to the level of play there are there any more questions thank you certainly are honor and it should have been something that i clarified for the court i apologize i believe it's on will fronts and certainly looking at the evidence in this instance although opposing counsel stated that this was overwhelming evidence we would have to disagree certainly in this particular case the state is relying upon the circumstantial nature of this particular incident and really a reliance on their expert witnesses  saying that this could not have been self inflicted this could not have been something that a small girl had done to herself they've failed to address or lay out the issue of whether or not this could have been an accident of some self inflicted an accident might have been you know are two different things and certainly none of these expert witnesses that the state offered were able to pontificate about any number of scenarios that could have arisen where these types of injuries could have resulted from something other than heather lamie having been the one to perform i don't believe that the evidence was sufficient to support a finding of guilt in this case and i also don't believe that the evidence was sufficient from a prima facia case standpoint where would like to address some of what was just stated during the course of opposing counsel's argument first looking to him jury impartiality issue your honor was asking questions regarding the defense counsel's not an effort i guess you could put it and even attempting to clarify the record in this case for his client and i think rightfully so if i'm going to argue that the trial court has an affirmative obligation to actually follow up on these issues to protect the constitutional rights of my client then absolutely the attorney has an obligation as her defense counsel to at the very least set forth an argument to at the very least clarify the record with respect to this issue there is a motion for cause which is made by defense counsel shortly after journalist o says prof back out for requests shooting but he does not require the trial court actually inquire of the particular juror who wrote that note he does not even attempt to clarify the record with respect to what fact this particular conduct could have had on that juror's impartiality certainly looking at this record all we know is that the person concerned enough to write a note and defense counsel had an obligation to actually clarify this issue and ensure the impartiality of the jury that's going to render a verdict on his client's behalf and that required him to follow up with that particular juror question them with respect to ok what was said give me the specific backs what was your belief about what was said ok now that we all know what was said what impact did that have on you if after that inquiry of this other juror who wrote the no it's determined that there was more that was stated in the deliberation room as opposed to what was talked about by journalists else then we might have an issue with the remainder of the panel where they present where they close by with the said to the group as a whole it was  to just you know the water we don't have that perfected and yes i stated earlier that trial court has an obligation to do this but i also argue to my proof that the defense attorney has an obligation under the objective standards of reasonableness as the defen attorney in this case to ensure that he should try to strike that juror for cause if they were impacted by what was stated in that deliberation room and then failing to do so he fell below that standard that would require the support to  d this case back to the trial court very briefly looking at the rebuttal were guarding the instruction i think the issue comes down to the effect that language of that we have the fact on the defendant heather lamie versus her state of mind no fact language is used in that very last portion that could lead a reasonable juror to simultaneously believe that they can use this tax for the effect it had on her and also for her state of mind because that is a conflict in the law that the ruling of the court was it can only be used for the limited purpose of showing the effect that had on the defendant's state of mind if any period that is a simple concise statement of the law that accurately reflects what the jury is supposed to do with this instruction but that's not what was given to them and it's because of that that the jury could have given that this instruction was conflicting and therefore warranted a warrant remain and in this particular case