and the simplest thing about this particular case is that it doesn't matter at all that the state of illinois has refused to call the independent felonious purpose an element of felony murder from the beginning from morgan through and davis and davis and the illinois supreme court has always treated this as a question of fact if the state had to prove in order to convict somebody of felony murder they had to prove that  felony had the predicate felony for felony murder had an independent felonious purpose from the homicide and they did for a very explicit reason they did not one felony murder to subsume the other two types of first degree murder intentional murder and knowing murder essentially they didn't want the state to prove to be relieved of the burden of ever proving intentional murder by basically charging  question of whether as independent as a question of law that the judge could decide and evans was wrongly decided it is a question of fact these state courts have always treated as a question of fact the thing that they have refused to do is require that it be proven to the jury beyond a reasonable that if it was a question of the law then the judge could decide there are questions of law like whether a particular crime is a lesser included offense of another crime that's a question of law they look at the elements of that you know compared the elements of the two crimes here they always closely examine the facts to determine if the state has actually proved this particular fact well sure so in this case that the jury needed to decide whether the state had proved a mob action offense that is clearly a question for the jury yes the question of sufficient difference however whether there's an independent and you know whether this is truly and a different climate crime as an independent funniness intent is a different question right well is predicated on the evidence so it is an evident it's a question of whether the state had shown by sufficient evidence that the predicate felony was independent of homicide of sense it is based on the evidence and it is needed to convict a defendant of felony murder it's a an element for the jury to decide just like they decide whether or not mob action was proved or they decide  some proposed jury instruction predicated on the language from this illinois supreme court cases and cases you were required to find that the and that the predicate felony mob action had an independent purpose purpose independent from the homicide and a separate and independent they're looking at that language and it looks i'm trying to imagine how are you as a juror would deal with that educational but that is a double jeopardy is about whether you can convict somebody of two offenses rather than one and this is about whether you can make something of this one offense i'm not sure that really helps a whole lot  both the failure to raise this issue in the trial court and you seem to be saying it was ineffective assistance of counsel to fail to raise an issue that the illinois courts at least have never recognized but the the lower court here found that it had been decided by the state courts on the merits so it had been fairly presented and hadn't been  was no court had actually required is to be proven to the jury yet that's true but somebody has to be first somebody has to be first but you're saying that the failure to raise a skill below minimum standards of competence and that's a that's a very tough argument well counsel is required to bring his or her expertise to bear on behalf of their client question is necessary for conviction had to be proven to the jury so no there wasn't a case on all fours just to be served up on a platter for counsel here but i think strickland even the low bar set by  strickland expects more than that the evidence attorneys figure this out and had proposed a couple of instructions so this is not something that i think there'd be beyond that kind of counsel here everyone sort of attorneys you have you have any illinois courts given such instructions no no they haven't i i think they get a lot of headship or they've it's been tried in a couple of subsequent cases and they get head shakes and refuse but here just as the illinois supreme court was trying to protect defendants from being convicted of intentional murders without the state having to prove intentional murder defense counsel the obligation to protect his client's rights the same way and i morning your honors may please the court counsel assistant attorney general lindsay payne on behalf of respondent wharton as this court held in evidence the touchstone for determining whether a fact must be determined by a jury  must be found by a jury beyond a reasonable doubt is whether the fact constitutes an element or ingredient of the offense and eleanore courts have repeatedly held that independent felonious purpose is not an element a felony murder in illinois right supreme court those told us the labels don't necessarily control this so independent felonious purpose be decided by considering only the elements of the relevant offenses th well this goes to something that my opponent said that i would absolutely disagree with him that this must be determined after the trial because in morgan well can you decide it based barred by looking at the elements and jury instructions in some cases yes but there may be situations where one can for example the  cases where the illinois supreme court has held that the state may not charge of murder as felony murder have been morgan and pelt where it was predicated upon an aggravated battery or aggravated discharge of a high absence a one on one attack right yes but the court has left open the possibility that aggravated battery could serve as a predicate for felony murder if the aggravated battery was directed at one person and the felony murder was the death of another person so in that situation a basic outline of what is alleged to have happened may be necessary to determine whether the counts merge ok the trouble that i'm having here we seem to be that the claim that the defendant brought there was i moved to dismiss this claim before trial and the court should have granted that and the illinois supreme court said yes this should have been dismissed before trial and was more going to one on one yes it was and and we don't know how many times felony murder charges are dismissed prior to trial based upon this rule because that's not something that would end up in a published opinion but the fact that the core after a trial has taken place does a look at the facts doesn't mean that this is not a legal rule the court could be saying not only shouldn't we're the trudges as brought in this case improper but given the facts there's no way that the indictment could have been proper there's nothing they could have put in the indictment that would have made it proper help me fit that concept into the supreme court six them an interest group well we have the cases that upon god in solving and winship we're all very different they had they merely hold that elements of offenses that are are going to raise the the punishment or a actual element of the crime must be put to the jury and proven beyond a reasonable doubt what we have here is a felony murder has certain enumerated elements that are set and we have a category it is a limit on prosecutorial discretion it is the illinois supreme court saying notwithstanding the fact that some crimes fit the very definition of felony murder in illinois we are going to tell the prosecution that they may not charge it that way they must charge it as first degree intentional or knowing murder because our big concern and this is something i agree with my opponent on here are big concern is misuse of felony murder by the prosecution because and so where are you one more time we're in the supreme court's sixth amendment do we find room for this judge based factor based limit on prosecutorial discretion probably nowhere in the sense that this is different enough from god in sullivan winship a pretty that it doesn't fit there and we don't have a u s supreme court case that addresses this scenario and in the absence of a u s supreme court certainly but this is this is different from a pretty and it is it's analogous i would submit shit illinois one act one crime rule which holds that charges merge reus of one crime is inherent to the actus reus of the other and that is not put to a jury that is a legal rule that is decided by the corps and it has been challenged in this court and this court has upheld that practice because there is no u s supreme court case that states cannot do that do you think it would be impossible to craft a jury instruction i mean tell me what the jury instruction might look like or is it the state's position that it's just not susceptible jury it is our position that is not susceptible and petitioner has pointed to some states that have created elements to felony murder that they put to the jury but they don't fit with this doctrine there are cases that say you have to find an additional act but that's not what illinois rule says because we know that you actually don't multiple a finding of multiple acts for example the felony murder statute expressly recognizes that arson can be the predicate for felony murder so if an individual throws some incendiary into a building believing that it's an occupied but someone is in there and dies that's felony murder in illinois but there's a single act this isn't a fact based  can we find a specific fact that was another act question this is do we believe that prosecutors have the discretion well i understand i understand higher categorizing it and i understand your argument that it's a legal question for a judge but my question is what a jury be incapable of making this determination yes because it's a legal question of misuse of felony murder under illinois common law and it's there's simply not a fact that we could instruct the jury to find that would answer this question and that is what this core held in evidence and because it is a legal question evans was correctly decided this court requires a compelling reason to overturn circuit precedent there's been no change in the law since ovens that would justify departing from stari decisis here and so if there's no further questions we would ask that the court i'll try once more share suppose women the same that we are are saying here that this is this is not an element of the fence and i don't mean that in a semantic way this is not a fact for the jury to find this is the illinois supreme court saying maybe this is felony murder but we are carving out a category of offenses that are felony murder but we are going to require the state to homicide but it is nonetheless a fact question that question that must be proven in order to convict somebody of felony murder and the fact question is that the question of whether felony murder is being abuse is of course the policy behind it it's not the fact the term is made at a trial though they look at the facts proven by the evidence that's the kind of like subjective motivation by the jury the language from the evidence proposal and you get a note back from the jury saying what does this mean what would you tell them well that would be that would be puzzling the they would say you have the instructions and you're to continue deliberation but it's not an answer i know it's not an answer it would be that you would have to determine that the purpose of the felony here the mob action was independent of the homicide that there was a purpose here other than the death of the victim charged in the in the felony murder and that it yes but there are other states that we did point out in our brief that submit similar ideas to the jurors and there's a model jury instructions in massachusetts for this sort of thing the other guilty there were a couple others that proceed to trial would have did they invent or encounter the same question i have to be frank i'm not sure whether or not this was raised by counsel for the other defendants or not there's nothing i've seen to