right you know go ahead mr miller thank you thank you your honor good morning may it please the court my name is aaron miller and i'm with the opposite state appellate defender and i represent like one thing the defendant and your honour's this case involved the home invasion and various other offenses in which mr fein was found guilty after a trial by jury the home belonged to an elderly lady named mrs modeling for the defense a trial was that mr mcgee committed the crime with james beal and not with the defendant mr fein and we raised two issues on appeal just quickly address there for thirty one issue this state acknowledges that clear error occurred because one what the court trial court did or that issued some modified version three point one seven i'd also like to point out to the court that in my brief for some reason which i still can't figure out i misquoted the modified i p i in my statement that the state's brief correctly quote said i don't think it really makes a substantive difference in my argument but i wanted the court to be aware of that  and the the instruction that was given to the jury was one witness says he participated in the commission of a crime in which the defendant was charged you can consider in the general suspicion and caution so it does not  require under that instruction does not require the witness to implicate the defendant which is contrary to three dollars accomplice instruction and if you look at the history of these cases starting with  given you look at rivera itself which is the supreme court case that court clarified that three point one seven applies people defense and state witnesses we don't dispute that but it did not eliminate the requirement that it must implicate the defendant and specifically in that case the witness previously testified that the defendant committed the crime case and actually jackson was consistent with these other cases that found that there was error obvious harmless error to give i p i three point one seven because the witness did not implicate the defendant but in the court basically said well it wouldn't be inherently unfair if there was a motion to fabricate to give d the instruction that was given in this case  plus years in that one of those cases cited it for the proposition that the state urge and this court to accept that modified language son surely eliminates the requirement of  so so moving on the prejudice the state cannot prove that this error was harmless in this case this case involved credibility the witnesses sensually if the jury had believed to make the testimony  would have found the defendant not guilty of everything except the misdemeanor resisting the charge which the defendant never even disputed that he ran from the police  stunned mr fame had a mask that was a basically a t shirt when he was in the house he retained it was chased by the police and when he was cornered he tossed it when he was trapped nothing to do with this shirt his d n a would not been on the shirt so the physical evidence actually backs the defendant's case up which is entirely circumstantial to begin with and  chased at any time prior to the parking lot and which is consistent with the version that the defense had that the case came after the parking lot so the short of it is that a rational jury could have found to be credible and rejected the state's circumstantial case and because a rational jury could have found the state didn't prove its case beyond a reasonable doubt this court should reverse  remanded for a new trial thank you count so justice had been do you have questions yes thank you justice enough good morning mr miller good morning mr miller you seem to be arguing that a per yeah i i don't think there's really any dispute about that your honor that the the instruction itself requires the witness to say was involved in a crime with the defendant which is why the court here felt there was a need to alter the instruction centrally changed the law my question is the as you've already mentioned rivera and rivera the supreme court ultimately approves of giving  the accomplice witness instruction i'll be it where the witness's testimony from an earlier trial came in but the fact was that in rivera the witness on the stand did not implicate the defendant in any manner and yet the supreme court approves of giving instruction on those circumstances so how do you square your argument as a per se rule with the ultimate result in rivera well because as was found forget the name of it was i three point one seven so if the defendant was implicated here then they should have given three dollars there'd be no need to modify it if if this falls under rivera the court should have given three point one seven just as it did in rivera and have they done so the jury could have found that while the witness didn't say he was involved in the crime with the defendant so we're not even going to do you has the witness's testimony suspicion of caution and i see your point arguably there was inculpatory evidence coming in from the witness even though it wasn't live it came in earlier testimony i understand the argument yes my you're indicating that this was this is all things entirely circumstantial case correct yes your honor isn't it can't the jury make a reasonable inference based upon the circumstances state both of the men were found together there were about sticking things on the defendant i don't know what you like from the field i think how can a jury how are we going to reverse a jury in making that reasonable inference with all of those i think are you still speaking on no with all of those facts i mean isn't isn't mcgee's version of the events if you look at all those fa circumstantial evidence the jury can find the defendant guilty based on that excuse me but the problem here is that the court specifically improperly told the jurors instructing the jurors to consider the defendant's main witness really is only defense to consider his testimony with suspicion caution and that's prejudicial not appropriate is it any different than buyer  then who quiet testimony i mean he was he again he indicates that he was a lifelong appointment maybe they're not the best friend somebody said the shirttail relative i mean is this any different than improper and it's then that's only given when there's accomplice testimony which there wasn't here because there was no implication of the defendant has any court ever overruled the revered decision or int for forty years and it wasn't even a holding in jackson again it was dick saw the the court specifically found in jackson that it was error to give i p i three point one seven because the witness didn't simple take the defendant and then dick went on to say oh well it's possible in some circumstances that the instructions could be appropriate trying to find out what the language but there w where we say here witnesses participated in the commission of a crime with which the defendant is charged so it jackson where you also participated but nobody overruled that decision right but the court the circumstantial evidence but the way i kind of think of the is i don't know if you've ever watched the brady bunch but there was an episode where greg was down on the  you know weird things happen and that's the purpose of a trial that the press but the juror it's perfectly rational for a jury to believe this especially given the d n a evidence and there's no good explanation as to why mcgee's d n a would be on the shirt if you had nothing to do with it so not only is it a battle of credibility the witnesses but that physical evidence actually comes to prove the defense case here ok ok thank you very much i don't have anything further thanks not just to this is justice enough i just have one question mr miller don't  every case i found requires the the witness to implicate the defendant ok and repair did not thank you ok i don't have any further questions at this time then mr rogers do you want to go ahead with your argument that your honor the morning your honour's counsel may it please the court my name is steven rogers and i represent the people of the state of illinois your honor the state of here this morning to ask th  court to affirm defendant's convictions your honor the defendant already went ahead and pointed out that then this will brief he was talking about an instruction that was offered but was never given to the jury the instruction that was actually given is found on the common long record page of one hundred and ninety five thousand two hundred and thirty two it read that when a witness says he participated in the commission of a crime of which the defendant is charged the testimony of that witness a subject of suspicion and should be considered by you with caution it should be carefully examined line of the other evidence in the case and instruction will read it record a report of proceedings page eight hundred and thirty eight in the trial court in deciding to give that instruction clearly expressed that the instruction was based on people versus jackson which is that report of proceedings a seven hundred and fifty five because of the instruction that was recognized in that case fit the facts of this case and complied with the law should not have his testimony scrutinized carefully before does rely on no matter on which side of the case the individuals have been and so the state's position is that the modification was necessary in this case because the state recognizes that one could be confusing because the i p i says the witness said they were involved in the commission of the crime with the defense so essentially the trial court eliminated any confusion by saying that the witness in this case dre on which may be stated that he participated in the commission of the crime with which the defendant is charged and so the trial court's ruling essentially modified the instruction to fit the facts and the law and i believe with that i'll briefly touch on the harmless error and closely balanced arguments there were all circumstantial was overwhelming mcgann defendant are caught four blocks away from the victim's home and within five minutes alone the suspect fled the home damning is corporal johnson testimony that he see the defendant in mcgee running across the field directly to the west of programa and this occurred before defendant or maybe saw in the police so they're all ready for laying from the direction of the victim's house before they ever speak or paul johnson the two did not notice corporal johnson until they were crouched down behind the vehicle and that's at the point where they fully into an enclosed area within the program the ground defendant and then defending the thought and there's actually a photo from the body camera really strains credulity mcgee's didn't wear this white shirt his testimony is that he has this white sure up of sleeve the entire home invasion and so there would really be no reason to make such a great effort to get rid of this piece of evidence when mcgee was the one that was unmasked and he was identified stating that his girlfriend's car had been stolen at a point where he doesn't know that mcgee has committed any crime so that would be an odd thing to do if really the car is not implicated in or near a crime scene so there are multiple aspects graham mcgee's testimony that are simply unbelievable and the state believe this case regardless of the propriety of giving the instruction or the very or the evidence in this case was so overwhelming that neither error would warrant reversal and with that the state requests that this forum the convictions and i am open and happy to take any questions thank you justin yes thank you i do have some questions thank you mr rogers that's a slight factual distinguishing characteristic but the state's reading of that that one of norman's credibility who was the witness and rivera that didn't go to the overall holding that the i p i three point one seven to testify then that testimony should be considered as you would acknowledge again then revere their arguably was evidence that came in from that witness al be it in a different trial that implicated the defendant correct yes you're all right let me ask you more pointed questions can you call your attention to any cases that have held that the was proper to give the hapless instruction when the defendant who testified at trial in front of the jury defendant or the witness boy next to the defendant and then that's when jackson said the proper approach would have been to give the instruction that was given in this case and outside of that no i the state of not aware of a case where the  think it was a recommendation that fits within the confines of rivera and truly and so it's the least persuasive authority for this court final question do you have any cases that of the pell the modification that was given in this that here doesn't that prejudice the defendant no your honor and i think of i'm pointed out in dogs recognize that we're going to witness goes up and there's clearly an accomplice and that when the defendant had no par the crime rivera says that individual testimony should still be scrutinized regardless of the fact they were offered by the defense and their wrists confusion because the person is saying the defendant did not participate  so if we're going to look at the testimony and scrutinize it then i think the modification is the only way to eliminate  i mean this couldn't a given of the couldn't ever be couldn't really be harmless error when it weakens that testimony that was favorable to the defendant correct not from the state's perspective your honor when the witnesses testimony it's all implausible and that was in this case then even if the instruction had not been given i don't think any rational trier frak one of accepted my views testimony based on the circumstances and based on the multiple pieces of evidence that directly conflicted with me either account of events ok thank you i don't have any further questions either all right mr miller do you want to give your reply certainly on one thing i'd like to do is it goes better answer your previous question about the committee note i paid three point one seven and it does say there in rivera the supreme court held that accompli testimony should be questioned cautiously scrutinized regardless of which side testifies for as a result the committee now recommends that this instruction be given any time a count was testified not a modified version of this instruction as a refers to requires a simple case the defendant so even under the committee notes in thinking about this that that's consistent with our argument because that instruction wouldn't be given if there is no implication and the answer isn't wallace the defendant not implicated then we'll just we write the instruction that's that's not how this should work and i also like to note as far as prejudice again this is entirely circumstantial and for example to compare this to jackson where they found there was harmless there two witnesses actually identified the defendant as the offender as a robber and one of those two witnesses knew the defendant so i mean that there was no doubt that he had committed that crime in that case and so unlike this case it was appropriate to find they're harmless and jackson and i think i do not have any further questions just this question thank you and i don't have any further questions either at this time then the court would like to thank townsell for their arguments this morning on the line for a moment sure