several other women stole merchandise from a t j maxx store indicator illinois we've raised one issue on appeal and that is whether ms rain it was deprived of her right to a fair jury trial when a prosecution witness to cater police officer ross testified in violation of the trial courts and women a order that was great it was part of a retail theft ring that hit his store several times before the trial just sustained defense counsel's objection but the court denied the defendant's mistrial there's no question that an error occurred here and i think there's no question that the defendant was prejudiced as a result of that era the only real question in this appeal is whether the resulting prejudice was secured by the trial court's remedial action in sustaining defense counsel's objection and we submit the cancer to that question is a no this is one of those rare cases and there are such cases in which there is no real action that the trial court could have taken that would have done away with the resulting prejudice the prejudice in this case was irreparable and here's why the state's theory in this case was that this green it was either fielding as a principle because she stole something herself or based on accountability because she knew the other women were going to steal something and the prosecutor argued and the jury was instructed that even granted only knew that the other women had the intent to commit theft when they entered the store she was just as guilty as they were even if she did steal and in sharp contrast to the state's theory of guilt the defense theory of innocence which was actually supported by miss frayne it's trial testimony was that i didn't steal anything from the store and i didn't know the other women were going to steal anything from the store officer ross testable that was great it was part of a retail theft ring with these other women that hit the t j maxx store before completely undermined the defense theory of innocence obviously if miscreated was part of a retail theft ring she knew what the women were there to do they were there to steal from the t j max also i think based on this record the source of the inadmissible testimony magnified the pressure is this is a police officer testifying about what he was told by a store security officer i think jurors would assume is anybody would that if if anyone knew who was involved in a retail theft ring indicator it would be a store security officer indicator police officer so this has come in and this made me  before five words you're going to somehow stick and yuri's mind the sort of amazing well justice cooke i think you have to understand that this was a very short trial it was only a day and a half it wasn't like this was something that happened days and days before the jury was about to deliberate and i think this these four five words were the most prejudicial four or five words that could have occurred in this case where the prosecution is arguing that they had a video and if you watch the video justice cook you cannot tell what she's doing with a pair of shoes by watching the video or sneak in the store person who was watching it at a better view he did have a better view but his view was also rely on the credibility and ability to observe the store security officer and he could have been mistaken and i think it's important to remember we're not arguing reasonable doubt we're not arguing that the evidence wasn't sufficient to convict this crane and we're arguing that all he said was it looked to me like she was taking a security device off and i think when the jury is considering that testimony the problem here is what weighs into the  mix is the jury having heard that mrs drane it was part of a retail theft ring and i can see the jurors saying well you know why i believe the store security officer because she's part of a retail theft ring so of course he wasn't just a what arguing he's lying were arguing he was mistaken and i think she as we argued in the brief she could have been flexing the shoes and i think here's the kicker by linda witherspoon was the other prosecution witness she was an accomplice she flipped and testified against miss crane he also the only two witnesses were the store security officer in berlin the witherspoon by linda admitted that she removed a security device from a pair of shoes while she was in the store miscreated dipak that she removed security tag mr davidson the store security offered officer testified he found one security tag in the chute apartment of the store after the women laugh well i think the best shows that the security t up a group of women decided to go to the t j maxx store they drove there she went into the store with the other women by linda witherspoon be a papist who testified for the state admitted that she was the only one who was in possession of a car that was wheeled around the store it was great it said i went into the store with the other women i was doing some shopping i picked up a pier of shoes and i looked at them i was thinking about buying them because they were cute she also said she took the shirt and placed it on the heart and she didn't purchase the shirt off them and leave because she couldn't find a pair of pants that matched the shirt that was her explanation for what she did in the store and then she said i didn't see anybody else fight anything or take anything or steal anything and we left the store and i got into the car the waiting car and i turned around and run as she left the store the store security officer said he chased the women but he didn't specify which women were running and which weren't my point testified that she had already gotten to the hour and was in the car when she turned and saw mr davidson chasing the other two women but you know i would suggest even if mr davis and saw my client running that simply well that wouldn't even be enough to support a conviction let alone make the evidence overwhelming we've sighted people persons president says presence in flight isn't sufficient to convict and again we're not arguing reasonable doubt this court can look at this evidence and say this was sufficient to convict but i don't think this court can conclude that the evidence is so overwhelming that it rendered  testimony harmless as and we rely heavily on people versus lewis which this court decided in one thousand nine hundred five and in that case it's very similar a prosecution witness who was a police officer gave unsolicited unresponsive testimony that a state that a victim had offered to take a polygraph the trial judge sustained defense counsel's objection the trial judge instructed the jurors to disregard and the trial judge struck the answer from the record and the prosecutor didn't mention any closing argument just spoke and there was no other testimony it was just this isolated incident has occurred in this case and this  on appeal said we sympathize with the trial judge he was in a bit of a dilemma he had to figure out if something short of a mistrial would suffice if the trial judge thought it but this court thought it didn't and this court held that despite the trial  remedial actions the trial court had abused its discretion in denying the mistrial i really don't see any difference between lewis and this case the only difference is that it was polygraph evidence in that case and inadmissible hearsay had traditional other crimes evidence in this case and i think there is some evidence that is irreparably prejudicial categorically such as polygraph evidence in the based on this record i think one officer ross took the stand and said i was told by the store security officer that his brain it was part of a retail factoring that this same store several times that was game set match this case was over at that point i don't think there's anything that could have wiped it out of the jurors minds and because it was so central to the defense theory of innocence in this case that miss crane it didn't know the other women were there to steal instructed jurors to disregard the judge even said you know some wires want me to do it otherwise don't want me to do it because it would highlight it and defense counsel said well i actually really don't want to do it i think what happened counsel's belief was this would be a useless act there is nothing you can do judge that is going to wipe this from the jurors minds so it would be a useless act the only thing it might do is highlight right ok if it's not that big a deal discovery and saw this in discovery did a pretrial motion eliminate he knew how prejudicial this was he knew that if the jurors heard this his client was going to be convicted so council fuck this was a huge enough deal to seek a pretrial ruling from the judge and officer ross said it defense counsel objected there was a recess and counsel said judge there you go this is exactly what we were trying to prevent now it's happened and my client has no chance of getting a fair trial so i think counsel was thinking you no question justice cook that we rely on jury instructions all the time we lie we rely on jurors following their instructions and as a general matter i think that's correct but as i said at the beginning there are those rare cases and there are those cases such as lewis in which the judge not only instructed to jurors to disregard but struck the answer from the record so i think there are those rare cases in which it's just too much to ask of jurors  ignore something that is so central so central to the case and we also cited people versus gregory from the illinois supreme court in which the court said  jurors are robots we can expect jurors to ignore everything and sometimes just every once in a while there's a case in which the right thing to do is read a mistrial because the jury is a  your supreme court is represent has recognized those rare cases this court has recognized those rare cases and i think because everybody in the trial court recognized how prejudicial this would be that it was ordered excluded from evidence before trial and this was a very short trial this was the first day of trial it wasn't like a long trial where the court had to weigh you know judicial economy or starting over in the expense of a lengthy trial this wasn't a trial where there was going to be ten more days of testimony and the jurors could well have forgotten this this was a very short trial with inadmissible prejudicial testimony that completely undermined the defense of the case and we would just urge this court to find that this is one of those rare cases in which nothing could have been done to save it this trials happen this should have been a mistrial and unless the court has any questions thank you very much for your time read all the evidence and as i summarized the evidence in the brief she also testified that she inch the tags elsewhere in the st a quietly i would suggest that the appropriate remedy would be to firm the file clerk as far as the police officer concerned i don't know that you know that so we're just stuck with this conflict specially if the sky it's i suppose picking up on mr hoffman's point it's hard to believe that  or the police officer i don't think it really matters there are only two possibilities here either the prosecutor failed to with mohnish his witness not to mention this particular state and then the prosecutor failed in his duty or the prosecutor did much the witness in the witness decided he didn't care either way in nurse to the prejudice of the defendant and justice cooke as to whether the answer was responsive it is a very broad question however people's exhibit two wasn't the photograph of the stolen evidence people's exhibit two i believe was a photograph of the empty heart that was left in the store  it may have been a broad question but i don't think anyone would believe that the response to the question was well i was told it was a retail theft ring and it is just a statement pointed out as in louis this is an experience police officer made a big point of it was an experience police officer should know better and i think this police officer should have known better and again whether he was responsive answer or a non responsive answer the fact is it was a prejudicial answer reading  isn't it clear that a group of these women were stealing stuff the only thing that's clear in this case justice koch is that our linda witherspoon stole my dms from the t j maxx store and i think you know this court when it when the only well we talked about that oh that's true it's not it's it's not the only evidence it's the only specific evidence there's two pieces of evidence against my client that are direct rather circumstantial mr davis and said he saw her remove a ta we know that's questionable because of mr de because mr davis only found one tag and the evidence from garland witherspoon and again evidence can be sufficient to convict the question here is it so overwhelming that it rendered the air arms and i would submit it's simply can't this is was a credibility case the prosecutor admitted argued as much in closing he said who do you believe you believe are linda witherspoon or do you believe the defendant and i think when the jurors are thinking about that well magnified the prejudice because the jurors think jean or linda witherspoon has been convicted of retail theft in the past we heard that there's this is all part of a retail theft ring if the defendant know these women were going to steal things from the t j maxx when she went to the store she says no but they're part of a retail theft ring and we know that because partly to witherspoon's been convicted i think the whole thing tainted this trial and just a statement i don't think this court stuff with what happened obviously  it's not an arrogant enough itself i'm simply arguing that it tended to magnify the prejudice of the area that did occur and you know one wonders why did the perp the prosecutor put in three excuse me two prior convictions