construe consent so broadly so as to allow the state to claim that a prior motion for mistrial made by the defense operates as consent for a state's later continuance and a mistrial however defense counsel also agreed to continue the trial to verdict if the excuse me if us around readers did not hear and defense counsel fav and they are not in the record nor did the trial court inquire to as to what was and then more conducted in camera inspection so we don't know what is in these statements but again i think that that weighs in and the defense is favorite here because the trial court immediately granted the mistrial without asking to see what was in statements this was a hasty decision this was not one that was considered the trial judge admitted that she did not consider reasonable alternatives she admitted that a reason long term it could have cured the could have cured this situation and allow the trial to continue this court can find that quite in her comments essentially say that she was protecting the defendant's right to a fair trial here on the ground what she had seen during the course of the proceedings and that's what she was doing trial with the tribunal she has selected and that goes to the conception here which is that this court in its love and your decision warned against of applying the idea of consent so broadly from a previous mistrial motion so as to say oh well at a later point i'm just going to agree to what the defense always wanted it's not the indication here that the defense wanted a mistrial anymore and i think that if you have the record would show that the trial seemed to be moving in the defend state and so that would go to the fact that again these motions are wholly not related as i said the state moves through the mistrial on the fact that we have these two statements it cannot be said that miss cosa bucky's separate motion points there are parents on the record and that is that as i discussed previously the trial judge did not review the statements before declaring a mistrial and that the evidence does not suggest that the statements with to turn the statements over even though the morning have it looks like the nd day of trial the state knew that they had them but failed to turn them over and then bet was only disclosed  during the severa after vegas testimony your honor the reason why the court should have reviewed his statements is because a mistrial requires a manifest assessment which has been defined as a high degree of necessity the court could not determine whether that necessity existed without even so much as inquiring as to what was in these statements that's the reason is there is that the court did not know what these statements contain and as defense counsel said when he objected after the mistrial had been declared as st available opportunity you believe that they could have concluded the trial that day and defense counsel stated at the hearing on the motion of bari prosecution that there was nothing to cure you do not believe that these statements would have had any impact on his case this can be compared to this court's decision in badly total wrench in the works for for the defense a total wrench in the works and so this court said then that well a manifest necessity existed because a any review of the evidence would not have cured the prejudice because the entire defense was built around the fact they didn't have the evidence we don't have that here we have an exact opposite statement from defense counsel that he did not believe these statements would have had an impact let's true your honor and i think there goes back to the bakley case and how it's distinguishable on that point which is that your counsel and obviously defense counsel here represented miss cosa pikey and would have heard from her that there was a statement given however if you compare it to  badly where there was this extensive pretrial litigation about the evidence that had been misplaced there have been motions in limine in arguments and again they had built the entire trial around what to do with the evidence here you don't have any  that the parties appeared to proceed to trial on the understanding that well apparently statements were given we don't have that there was no request for a sanction the discovery motions in the record are fairly standard and the parties wanted to continue to trial based on the evidence that they had it was not defense counsel you know he was aware he successfully impeached mr mccann out without even having these statements mr montana admitted that he gave a statement but he omitted any mention of a hammer and offense counsel said that he believed mr montana lacked credibility so the fact that he the defense counsel did not have these statements i think what should be focused on is that it did declare a mistrial where the defendant brought in evidence of an affidavit after the trial and started but the court there found it did not affect how the trial would have gone because the affidavit supported the defendant self defense claim and all the parties and the judge knew that there was a self defense claim so here you have something similar where this would not have affected the course of the trial that goes to one of the points i was raising which is that the record does not demonstrate there would have been any prejudice to mistrust of buckie and defense counsel did not seem to think so he was happy with how the trial is gone well how do we know this when the fact of the course of the trial that nobody has the statements the trial court and have the statements are not in the record here how would we know that well that's sure your honor but that's exactly the point is that the court declared a mistrial did not look at the statements defense counsel wanted to conclude the trial  he asked to be heard and was denied and there were a lot of indications the trial happened only in the defense's favor on that nd day as i said the stipulation answer not rodriguez was favorable they were able to include the fact that there was as i said the parties were going to trial and proceeded to trial knowing they did not have these statements and that did not bother them when they brought the statements excuse me when the state brought the statements to the court's attention for the court to declare that there should be a mistrial based on you evidence is what the court said this isn't a situation where the court referred back to defenses previous to this trial motion she said based on this new evidence of the statements i'm going to declare a mistrial job during this during the course of the trial and and had no reason to think after defense counsel had yourself made two motions to four mistrial at least two motions for that the defense might have wanted the trial to continue at that point shows that this decision was a snap judgment not one that is indicative of a high degree of necessity not in this  mistrial and that again that goes to what this court warned against as far back as the love of your case which is that a defendant might do might ask for a mistrial early on but then change denied the trial might start moving in the defense's favor and we should not allow a mistrial and then come back and hot the defense and say well we just agree that this is this how the defense reached this depletion but the fact of the matter is defense counsel was blindsided as was the prosecutor by his unexpected surgery it was able to negotiate a stable stipulation engine that that this trial was was going into admitted that she did not consider these factors do not consider alternatives or what the defense wanted or and refused to allow the defense to speak and secondly we don't have evidence that this would have quote prejudiced miss course a bucket are again the parties proceeded to good morning or honors victoria just for the people of the state of illinois what we have here is over one and a half days of trial that everyone believed was going to be a one day trial the trial court was presented with repeated concerns of trial preparedness and requests for a mistrial each time that request was made by the defense the trial court was already balancing the factors in deciding whether or not to grant those request so when it came time for the people's request the concern that a fair trial and the interests of justice could not be achieved were too great to continue the trial at the time the people made their requests for a mistrial which as they stated it was they were now agreeing to the request for a mistrial it was neither irrational or reasonable for either the state or the trial court to rely on the repeated requests immediately counsel said i want to be heard on this and the judge looks at him and says not not where was his opportunity to object to the state's blatant statement that they were now a green to the defendant's motion f mistrial which he didn't make at that time had been made earlier and absolutely denied on the record so how possibly did this how how is this a state's agreement to a defend prior motion especially when counsel has no opportunity to say a word other than the fact that you have defended continually asking for a mistrial at that point there had been no that stipulation the defense got the information it wanted from rodriguez or the jury so how do you bootstrap after that when that issue had been resolved by the stipulation i don't see it so much as a strapped back your honor as much as it was not a rational decision to believe that with the errors that were occurring over a trial that the position had changed and that's and that's why it is important to lodge the objection we realize just as dragon sen that the he asked to be heard but it was also two words he could have said i  object and we know from the record he was able to say those words previously so he could have gotten over that you're no hold it against council because he was a little bit courteous and didn't stand up and scream i object he said excuse me or i'd like to be heard on that we're going to say civility is cost you your clients valid motion are valid argument he could have said that you were it's your honor and  leave it at that well but the trial court was clear and put it in a written motion that the reason she granted the mistrial had to do with newly discovered evidence she didn't say at that she announced it that there were issues with evidence some issues with the evidence on the case right right however some issues she said newly discovered the only thing that was newly discovered was these statements that's what she told at least what she told the jury might have but she also recognized that she wasn't looking at this trial in a vacuum and we don't look at trials in a vacuum so there were all of what was going on is at the back of the judges had so whereas this defense counsel  saying this was a hasty decision it's not because we're looking at all of the events that went on over the course of the entire trial well she didn't she didn't look at any alternatives for various go she didn't say counsel let me see the statements and she didn't at least we don't have on the record that the attorneys looked at the statements she didn't say is there a way that we can handle this perhaps take a recess see if and i think this was in counsel's counsel's brief i mean that perhaps they could have used a statement to impeach the witness who was on the stand the defendant who was on the stand one witness could have been recalled on the state's rebuttal so there were ways that this could have been him to hold and the trial judge recognize that she did not consider those at the time and where we're well obviously the record is what the record is and we know that she admitted to that when she was going through all of the twelve factors however we as your honor has pointed out we don't know what those statements are we didn't know the judge didn't even know what the statements were at the motion to dismiss we don't know what the statements are on appeal so we don't know whether these statements would have had any impact to change the trial court's finding and the burden is on the to anybody where is anything that you can point to in the records to say that those statements were ever in the hands of the defense this the written statements themselves were not in the hand of the defense y how does he put that into the assuming that he didn't have them and therefore couldn't put them into their record don't we then construe that against the state since they were the only ones based on this record whoever had those statements in their hand but we know the defense had the statements by the time the motion to dismiss was filed because i believe there was an order disclosing the statements at that time and they weren't attached at that point so at not put the statements on the record at the motion to dismiss and at that point the judge could not review that her decision was inappropriate he had to put them on the record at that point if he wanted to say that they weren't going to change anything or they weren't prejudicial if they wanted a different ruling from the judge at that point he needed to put them on the record and i'm sorry she that if the fence counsel or the defendant state said that they that vague approached them before trial that morning that was the statement that was made on the record and then it's not till the afternoon th that's brought to court or the indians knowledge is that correct that is correct your honor and i cannot speak for what that passage of time mensch whether it was vegas said they're here and now we're going to go recover them that's all speculation as to the record or what what is in the record is that it is the assistant state's attorney never mentioned that fair to anyone until the afternoon that is was not just related to the discovery issue but to an underlying issue concern for ineffective assistance of defense counsel what in this record reflects that and is that the role of a prosecutor to ask for a mistrial to protect the defendant i mean i understand the role of the state is to seek justice not just a conviction but in the context of this case and whether the state then has an obligation to step forward and ask for a mistrial if they believe that the case is being poorly tried by opposing counsel your honor based on my state hisham to the record i believe that is a misstatement that the people's request related as so much as the trial judge's ruling specifically discussing factor what would have been factored number seven of the street factors believing the decision rested on the evaluation of everything that had gone on believing that it was that the trial was a the judge the trial court did go through a very extensive history of both what goes on in the courtroom and what went on in this particular trial and from her comments we know that she is considering everything that she saw before her there was a lot of concern going forward she tried to give the best opportunities that were going on but still she believed it was a complete mess this you know i really think the trial judge was trying her best to preside over what what she termed was a complete mess of a trial and if your honor and i and that's why the factors number five the number seven were so important to her is if your honour's had gotten if we had gone to completion and your honour's had gotten this record there would have been a lot of problems as well probably would probably don't love this record either way whether it had gone to conclusion or where it's at but the judge was doing the best she could in considering all of the factors that were before it and that's why even though there were factors that weighed in favor of the motion to dismiss there were also factors that were very relevant and to which the judge specifically gave great weight into why she granted a mistrial and if no mistrial was granted we would have been arguing the impropriety of her previous denial at some one it at least one of the cracked and here the judge is weighing all of these potential errors was weighing the prejudice that entered the trial was balancing the interests of justice both to the defendant and the i'm going out legation to protect the victims of domestic violence including the children here that are caught in the middle of this fractured relationship and the ends of justice here i mean that's what it came down to that the ends of justice here the judge found that it was more important to have the merits decided in this the the lack of preparedness that includes that i'm looking for the the lack of subpoena in witnesses and ensuring that they were not hurt that they were going to be available last year i'm sorry i'm sorry we lost you for sec of course are my back on your honor yes ok i see that the trial court was looking specifically at you know answering ready for trial when he was not ready subpoenaing witnesses that were not present and though there was a stipulation that was made as one of the two officers that defense counsel expected to be present that he doesn't want the child judge didn't grant it can she gave a defense counsel continuance to the next morning to see if rodriguez would show up well his i certainly was not going to be healed in twenty four hours i mean but anyway what  went to besides the failure to subpoena police officers well no it was they were subpoenaed it was a late subpoena the week before there was no follow up as to ensuring their availability for trial or even speaking with them  just to follow up once you served with a subpoena you have to appear you don't get a courtesy call to music really an error the it's the lack of ration and not having your witnesses present on the day of trial you answered ready on the th you answered ready on the th you get to trial on the th and you're she suddenly shocked that people knew their right i just have one other question your time as a but then i'll certainly give you time to answer so do you can see the defense counsel did not consent so we're only talking about to the mistrial we're only talking about manifest necessity here that is it really does fall on the borderline your honor there were two words he could have said i have jacked the time was not as broad as some of the other piece says but we're not going to concede on the consents we're going to stand by our argument in the brief and as far as as we sat it was it was irrational for at least the court to have believed that there was consent going into the decision and and that probably is why that it was more of a shock to the judge that that there was any any further consideration at that point because you have two parties now that have expressed concern with this trial and have asked for a mistrial so right that that's that's where we stand on that thank you just i st will respond to this combined question of trial preparedness and whether this would have been subject to reversal on appeal if if there had been a conviction trial it has been noted that this was an unexpected i think given the fact that this occurred this this area that could not be planned for defense counsel maybe he took a winding route to get there but he did and he did a good job getting a stipulation in that contained the crux of trial and i think you know given the fact that they did have to sort out this rodriguez issue sure there were probably some headaches however i think from the jurists perspective this was not the best of the trial and attentive jurors might have noticed that the state said rodriguez would appear but then a stipulation was answered and sure they all thought it could be one day and stretching to another to a nd day it's not uncommon this is not like the bergstrom case that i cited in my brief where the defense counsel there made an unlawful state in front of the jury this you know this trial might not have been an ideal trial for the parties but it was not a mess and it was not one that would have been subject to refer reversal and as a final note i want to say that you know the issue here about what the statements contained need to have been dressed when the court was declaring a mistrial it was a hasty decision as i've said and it was one where the court did not ask about what was in the statements conduct and cameron's action sought to review them and all it was an instantaneous snap decision for a mistrial you know i don't think that this was the sort of decision that came to vacuum the court said or excuse me this was a sort of situation where the court was reviewing everything that happened and the court said at the time oh i have new evidence and that's why i have basically updated its side the mistrial did not declare immediately and then one the judge declared a mistrial cited the defense's mistrial motion what matters here is that the judge made this decision hastily without reviewing alternatives the agree to there's no consent there and here you have the trial judge admitting to not considering alternatives and not allowing the defense attorney the opportunity to speak that was an abuse of discretion for there to be a denial of the defense cannot thank you i don't have any further questions and their counsel at this time of the court thanks both counsel for their arguments this morning the court will take the matter under advisement and mentor a decision and due course the proceedings in this case are