supposedly the indictment failed to include the statutory citation to the underlying predicate of attempted armed robbery or specify the weapon use is wrong for three independent reasons to begin with i think we must always keep in mind that defendant did not challenge the indictment on this basis in the trial court in fact his trial counsel said on the record multiple times that she fully understood the felony murder charge against the defendant this idea that there was somehow something confusing or unclear about the indictment was never raised until appeal and even in the appellate court defendant waited until his petition for rehearing before he ever argued that the indictment failed to sufficiently allege felony murder th sixteen delay is important not just for what it says about the merit of defendant's claim but also for what standard should be applied when reviewing the indictment as this court has said when an indictment is not challenged until the appeal indictment must be liberally construed this court is correctly recognized that he just inefficient legal system does not vacate convictions based on formalistic or inflexible pleading rules because defendant waited so long as this quarter said he faces an uphill battle and he must prove two things number one that on its face the indictment does not contain enough information to allow someone to prepare a defense and number two did this defendant himself was actually prejudice he has not come close to meeting either one of those requirements first of all count one of the indictment plainly provided more than enough information to allow someone to prepare a defense account one identified the charge against defendant which was first degree murder it provided the statutory citation nine three which refers to felony murder it describes the nature of the murder it said the defendant committed a felony murder in that quote in the course of committing attempted on robbery he set in motion a series of events that led to the victim's death but noticed  long standing rule which it's up held in cases like alan gross or chalky and maxwell that in illinois there's only one crime of murder and so for example if an indictment charges any form of murder such as intentional murder but does not allege felony murder or doesn't allegedly kind of predicate felony or what weapon was used the defendant still can be convicted of felony murder because this quarter said in illinois there's only one count of murder in the specific way that that murder was committed whether it's intentional murder or felony murder say nothing of the predicate felony or the weapon used that's not something that has to be specifically alleged in the indictment defendant's theory and the appellate court's ruling there directly contrary to that longstanding precedent and i would note that th he was defendant's only argument on prejudice is that he wasn't sure what his argument that he's now changed to in this court is that the jury was presented with alternative theories he admits now in this court that it was clear his counsel that what the charge was felony murder based on a predicate of attempted armed robbery with a firearm he is now complaining in this court that in addition to that the jury was instructed in counsel are getting closing an additional alternative theory of a dangerous weapon other than a firearm that was based on some testimony from one of the eyewitnesses that as part of the attack the defendant picked up some pipes and swung it at one of the security guards head but so that's his only basis for prejudice but because we know the jury specifically found that he was guilty of the four under the firearm theory we know there was no prejudice based on the only argument is raised if i may attack back to the notice though for a moment as i mentioned count one clearly provided all the information is required but even if this were court were to hold that an indictment must include statutory citation to the underlying predicate felony and identify the weapon used right as a whole the indictment did provide that information it's black letter law indictment must be read as a whole and that details that are missing from one count of the indictment may be supplied by other counts of the indict even if there's other counts have been dismissed which was this court's holding in people versus morris here count to allege that he committed attempted armed said about what must be alleged about predicate felonies or if you look at the one crime of murder rule you know i mean clearly provided all the information that was a crime to do i would note that even if hypothetically though there were an issue with the indictment certainly there was no prejudice in this case th murder based on attempted armed robbery with a firearm that's the exact charge for which defend it was convicted this court has also said independently is the second reason there is no prejudice where the record shows defendant raised a defense to the charge against him again that's the case here defense counsel postpone trial a couple times so that she could meet with an expert and have the gun tested shipped tainted pretrial ruling that if the evidence supported her argument she could argue that the weapon he used was actually an antique  statutory exception to the definition of fire she cross examined all the eyewitnesses about whether or not defendant actually used firearm in the attack she cross examine the state's expert about to emphasize that the gun was old it was rusted didn't work when it was examined it was unloaded when it was examined she emphasized all those points in closing argument then she argued that if it wasn't trying to rob anyone he just carries this gun because he lives and works in a dangerous neighborhood thirteen also independently this court is helping cases like m e rom and davis but there's no prejudice where the details that are allegedly missing from the indictment are irrelevant to the defendant's theory of the case again that's true here defense theory was that his partner was deeply depressed and was trying to commit suicide by security guard and that all defend it was trying to do was save his partner's life that theory does not depend in any way on what the underlying predicate was certainly whether it was with a firearm with a dangerous one these are all three independent bases that are well supported by multiple cases from this court in his brief to defend it even though we set these out in detail in our briefs he does not respond to any of them in any way as i mentioned a moment ago as we discussed he does have this theory about the alternative basis for the reasons i mentioned that's a red herring there's nothing unusual about pursuing alternative bases for culpability and certainly here there is no prejudice because we know he wasn't convicted based on the full dangerous weapon theory as there was nothing wrong with the indictment theoretically there were he certainly was not prejudiced in any way so on this first issue unless there any questions about the indictment we would ask the but this court reverse felony murder conviction if i may briefly turn to his cross appeal defendant has tried to develop an argument in this court that is felony murder conviction should be vacated because he believes the state was required to prove that the gun he used was both loaded and operable at the time of his attack and that the state supposedly failed to do this not prove it that was so the first major problem with this argument is that it's our by the dr of invited  because defense counsel said multiple times on the record the state was not required to prove that the gun was operable or loaded on the very first day of trial defense counsel agreed that under the law the state was not required to prove that the gun was functional at the time of the attack she made the same statement in the jury instructions conference that it was the relevant but the gun didn't work the jury was then instructed without objection that a firearm is defined as any device that's designed to fire a projectile instructed without objection that a firearm is any device designed to fire projectile because the state was seeking the sentencing and handsome and they were also given a special erotic tory asking whether the state had proven the defendant was armed with a firearm during the attack and they said as to the state's burden literally every single case cited by the parties holds that the only thing the state has to prove is that the gun was designed to fire projectile every single case on this point holds that it's irrelevant if  statute firearms defined broadly as any device designed to fire projectile period in that case the gun was heavily damaged it had a completely broken and bent firing pin the barrel of the gun fell off if you tried to pull the trigger certainly didn't work the court there said that doesn't matter because the gun was designed to fire projectile and that's all that matters not its current ability to do so and the reason for that warning in williams and the reason for that holding in every single case this examine this issue because that's exactly as i mentioned the attempted arm robbery statute only requires the state to prove that the defendant carried on or about his person firearm firearm is defined by statute as any device designed to fire projectile period neither statute mentions words like bullets loaded operable working condition so what defend its cross appeal is really asking this court to do is to add words to the statutes i don't there but obviously it's the most basic principle of statutory interpretation that you can't do that you can't add words on there you have to apply the plain language of the statute and i think that will take special weight in this case because if we look at other sections of the criminal code we see that when the legislature wants to limit crimes to only loaded guns or only guns are working condition express they do so in very simple clear terms for example the crime of unlawful use of a weapon expressly exempts guns that are broken down and unloaded laws that prohibit sale or transfer of guns also an armed robbery even a gun might be unloaded or might be broken that raises the risk to everyone involved including innocent bystanders a police officer a security guard no one has any idea that an armed robbers don is unloaded or might be broken so what happens is they off their own guns and they fire which puts everyone it risk this case is a perfect example of that unfortunately if you believe defendant neither he nor his partner had a loaded working gun never was you know that one person died another person a shot in the head  lost an eye and we know that multiple other bystanders were progress so the legislatures decision it makes sense from probably a policy perspective the defense proposed rule would not benefit anyone except for armed robbers who are able to commit a crime then unload their gone or break their gun before it's recovered by police that's not what the law is it's not what the law should be the legislature has made a very sensible policy decision and we asked this court protect it by applying the plain language  apparent in the into targeting count the state refers throughout its argument that you can look at the other counts the state does not say that the other  the defendant's defense counsel did not know which i'm bribery statute that the state was prosecuting infect from beginning to end this appears to be a house of argued that they could use the the fake pipes the fake shock known as a dangerous weapon once again that's not part of the count so in other words does the state's effort to the founding murder is without without the pretty good defense looks that in mexico there were two counts and there are other counts and the law is i believe under halted you can look at the entire indictment but we don't have that here when there's just one count of  well in this town we don't even have that have referenced a firearm that's why this was a rather free spirited prosecution below where were the state has argued armed robbery ar defense but what about the time to execute that defense to know what the prosecution charges are defense counsel was put into rather under any disposition of arguing about prohibited any challenge to the derringer not being a firearm just because it was not functional that was not done here but the prejudiced piece of this the protos piece is a little bit earlier your defense counsel didn't know exactly what to defend against because all pretrial it was really clear the arguments it was how defense counsel was was off balance throughout she didn't know what she was defending against but we don't have the whole indictment the state has yet to put the psych one case from pillar to post from the beginning to the end where there's just one count and you derive all sorts of theories from that one count it's just not here was i came across no case like this your honor there were were i don't even know how to describe the charge without a predicate offense what would it what is it you point to something to in the trial where trial counsel was unable to present a defense because of this confusion it appears that there was a great deal of evidence introduced about this weapon whether it was a right i don't know about that your honor the focus of the prosecution was but but if you look at the evidence it was no testimony on the composition of this weapon not go on the weight i mean if the state is arguing all these defendant can't go there and in the end the expert says well according to statute it's it's a firearm without going into whether it can function as a firearm at some point this this this this respond in any way to people he simmons with his court specifically held it even in a pretrial challenge to an indictment indictment does not have to include the statutory citation to the underlying predicate felony he does not respond in any way to the three independent bases for finding no prejudice the one he raises about the alternative theories for the reasons we've already discussed that goes nowhere as to the nolo process i think a couple things are getting confused here or left out and defend its argument dismissed prior to trial because it was based on a repealed criminal statute in other words a statute which the defendant can never be convicted of this court found that that was enough to provide missing elements to other charges now i think it trial court makes it easier for the defendant and they say easier for the jury we want to encourage prosecutors when appropriate to know the process but frankly if this court were to adopt a rule that no prost charges can never be considered we as appellate lawyers would have to strongly consider telling prosecutors do not know lho prost charges because they may be needed in cases like this where defendant waits to his petition for rehearing to say that there was something wrong with the indictment that would not be a good rule for anyone  even if this court did have some concerns about no law process it should have no concerns in this case because first of all the charges were no prost on the first day of trial it's been affecting one's preparation second in the exact same hearing in which the charges were no lo pros the prosecutor said on the record the count were proceeding under felony murder based on attempted on robbery with a firearm defense counsel said yes i understand that so there was no confusion about the low process plainly had notice of what the charges were because it was not functional well defense counsel as i mentioned expressly agreed that that was the law so to the extent he was prohibited it was prohibited because defense counsel greed that's what the law is and for the reasons i mentioned that's exactly what the law is the defense counsel irrelevant the only issue that's raised by his cross appeal whether what the exact definition of a firearm they were based on old statutes that in no way examine what a firearm is he also says repeatedly based on his case is that the law requires an examination of the firearm that obviously occurred in this case the state first or prawn eye witness testimony the defendant used a firearm under this court's recent decision in people the right as well as a long list of other cases that's a not just  witness testimony but the state actually went further in this case in court expert testimony that the gun had all the essential parts of a firearm it was designed to fire projectile it was designed to fire bullets and therefore it was a fire  unless there are any questions we would again ask the court uphold the defendant's felony murder conviction thank you thank you council member one two one three seven one people versus fury will be taken under advisement as agenda