figure out what was happening who this man was and where tracey was and if she was ok after several very confusing minutes of questioning jim realized that a large man was frank tracy's friend and not a prowler john that i love it it's done set it on the counter believe that he had the right to enter the apartment to protect tracy both of mr sholes conviction should be reversed outright the home invasion statute provides an unusual and barely mentioned affirmative defense called surrender which allows the defendant to  legislative history about the defense but a ground home invasion statute south it seems that the legislators were worried about people mistakenly entering homes in fact the legislative history has some comments about people getting a little bit drunk and entering at the wrong hand with their gun and and making mistakes and realizing their mistakes and then surrendering or giving up to the person lawfully there and people who had no intent to commit a crime who just enter a home maybe with a loaded gun maybe they've been hunting and find themselves in the situation is that in the legislative history it's in the legislative history the home invasion statute actually that this was to protect people coming is that they have the legislators were concerned we know when they drafted home invasion about situations where people accidentally homage to property for whatever reason with their gun that they were concerned that there would be punishment or penalties for that and i believe that the natural segue to the surrender portion and the immediately leaves is to provide there in as mr sole didn't know that frank was actually lawfully there and the minute that he knew that use or that i'm facing are not another intruder you actually have a right to be here i'm going to surrender myself my gun and my weapon to you so they took this statue and again this would be for this court to decide temporally how long this takes this only took his human argue that we should that this will be a basis to reverse out right that he established he surrendered is a factual question if it exists in that he surrendered in fact the state's witnesses said we caught him he was caught when he relinquished his weapon so the bare minimum counsel should have read that part of the statute and notice that the surrender statute the defense also going to be impeded with any s mean i surrender and i i leave it means i'm here i did this i did this action to the from the defense i mean the defend it would have to admit that i entered the home seemingly without lawful authority so given that program back to up to the which responds to i would i've never been part of a home invasion i the street believes it or those are some things that someone would do when they're confronted with this extremely tense and difficult conversation he entered he was looking around she wasn't there he doesn't know who this man is she could have also called out said he would get out of my apartment i'm here jana leave me alone leave me alone but he didn't see her and his concern as he says was trying to keep this large man i worry from himself and away from whatever tracy could have been done he's not expected to exercise perfect judgment but again this is a very confusing very quick thing this wasn't hours and hours that one on tracy was hiding in the bathroom she didn't make herself down her presence known mr show knew that she was alone that her boyfriend was coming home up you know a little bit longer but knew that she was by herself you just seen or so to see this large man kind of lurking about again he wasn't titles that kind of investigate he's entitled to have a gun in his own property and you know determine whether or not there is attack that situation that if you know someone's there than you don't have just i don't agree with the state there's two different parts of the home invasion statue one says i enter knowing that people are present and one is i enter a home and i remain one i knew  again this is an extremely tense situation he's not a law enforcement officer this is where he thinks that there's an intruder in his home in there with his neighbor else and someone else's home he doesn't know what's going on yes he was maybe being as he says a traumatic he was slamming the gun down trying to make a point but again that doesn't negate the surrender defense at the moment that he believed that frank was not an intruder that's the moment that he surrendered that's the moment he said i'm caught i'm done and he waited for the police  reckless with it necessarily that he had the hammer on cock when he slammed it that he in fact at the end of it he said that the reason why he didn't get frank initially the gun was because he didn't want frank to have the weapon in case the police came he didn't want frank to actually be in danger of being shot or being confused with being the person at the gun so i think his expertise in firearms goes to this isn't a knee you know just grabbing a gun when i don't know how to use it i mean he he had this was he had that he was allowed to do this he the defense counsel argued it was a mistake and mr shaw said i'm sorry i made a mistake i believe that this was an intruder that this was a problem or but again that's another reason to reverse this outright but at the bare minimum presented at a new trial supposed that this was a mistake that well the jury guilty after hearing testimony that his his whole version of why he was there so did they reject the jury wasn't given any  decision than the one that they may have been a self defense instruction and defense of others yes it does the opening description of the home edition that he entered without authority without authority yes but they were given the definition you know what i'm saying in the definition that they get that yes they got the definition but they didn't get it as the state concedes which was they did not get the issues instruction nobody told them that the state had the burden to prove beyond a reasonable doubt that self defense or defense of others didn't wasn't available to them so they could start maybe it was the defendant maybe it was fifty fifty they clearly didn't get the issues instruction now they have now they their response is that  was given as i say they were given all the ingredients but no recipe so they had nothing they have no way even if they believe that mr shaw acted in self defense they were given their forms and the ability to actually make that decision they didn't know what the burden of proof was they didn't know that it was the burden not mr sholes burden so their wrath completely unaware of how do you interpret all this evidence that they were given so clearly in a case that was a credibility contest in fact when all of the evidence points in the same way the state doesn't have any evidence which disproves his subjective belief that there was an intruder so because of that all the evidence combined and taken together sure that mr salt subjectively believe that he needed to use this force in order to prevent an intruder from harming his his mate downstairs neighbor the immediate the immediate and but there was more growth to me he put his hand on her mouth and then she was struggling with him and then that's where she sustained the truth exactly ok her you know his actions are causing her to go  window yes his actions are causing her to go out the window really didn't cause it she jumped out the window because of a fear that she perceived that mr render had nothing to do his surrender not the home invasion taken completely differently he didn't there with the got holding her friend you know on point for several minutes and then she it to you know tried to get out of being so i don't know that that's something that we would ever conclude i think that's up to which shows that this that they have counsel should have submitted this instruction to the way that we have all of these questions about the facts and how this would have played out at the bare minimum how they should have read the home invasion statute and understood that this was an available defense a didn't contradict the soft offense self defense mistake of fact and the surrender defense i'll go hand in hand it's all about mr sholes belief and his conduct and all of them are supported by the evidence and all of them could that advances the jury without endangering anyone or any pleased the court there was an error in this case with the jury instructions however it did not amount to the first of all there under the unique facts and circumstances of this case even if the jury had been properly instructed it would not have affected the outcome of the trial and we know that from the facts of this case as well as the instructions that were provided to t here there is overwhelming evidence that you find in committed the offense is of both home invasion and aggravated a model for restraint and also the state prove beyond a reasonable doubt a defendant was not justified in using the force used in order definitional instruction of home invasion provide that he entered without justification yes it does  had to prove beyond a reasonable doubt those elements of both of those offenses so the jury found that the state had proved beyond a reasonable doubt that the defendant had entered the premises defense the defense of others rather should the jury have been told that the burden to prove that he did that without legal authority rested upon the state well the committee notes do  through jury should have received this instruction yes however did you have to look at all those instructions as a whole yes and the jury did receive the general well the state also the instructions also included the the general definitions of self defense the jury wasn't advised and instructed that the use of force in defense of a person is an affirmative defense and also the use of force in defense of brawling is an affirmative defen yes and under the circumstances here the state did prove beyond a reasonable doubt that the affirmative defense was not a valid founds you had a situation here where there were basically two versions you had to version of events as told by tracey lama and frank plays a and supported by the evidence of the police testimony and then  defendants version of events just because you have two different versions doesn't mean it's a close the balance case and that's because defendants version was just not credible well that and the mistake of fact and the surrender defense counsel's arguing that the lawyer who represented him was ineffective for not presenting either or both of these and on the mistake of fact you seem to argue with your brief that because the testimony came through mr scialfa that it's not really testimony of evidence that the court would consider in deciding whether or not this was an effective representation and prejudice as a result well there's a rule that if there's any evidence to support and it's structured that the court would normally be required to have  that's the rule however in this case first of all counsel never asked for you know i know instruction because it's been raised in the context of a right systems and and it was reasonable because counsel decided that his defense would be defensi others defense of drawing but there wasn't it's not supported by the evidence here it wouldn't have been enough to make a difference in this case because defendant's actions were not consistent with him making a mistake  had this belief that he's going to the rescue to protect tracy one would certainly expect that he would immediately shout out you know chase area ok who is this guy you know i got him i'm holding him call the police quick he didn't do any it proper to argue all these things he still does well it's important because the jury had this us the defendant's credibility and the jury had to decide did it he really have a reasonable belief here or is this something that he concocted after the fact fabricated story to try to explain his actions of what he did and how and i'm the more likely the reasonable  finding here once you look at all the facts including what he was doing before hand which is very significant it's he did not act as if someone would act when they if they had truly believed that they were coming to the rescue something he did just the opposite he he was basically concerned about himself he's saying i have ten minutes past maybe fifteen minutes at one point he hears tracy crash through the window what does he say he says why is tracy trying to kill herself the president he didn't know who he was dealing it's not a mistake that amounts to a legal defense an affirmative defense because the mistake would have had to be that that he truly believed that there was an intruder in the house and once he got there he was mistaken as to that fact but when you look at the surround why would he be a title to that because there's a there's a number of facts  establish that he really didn't believe there was an intruder house he had he had made a series of advances towards tracy team defense her friend was in minnesota for a weekend he knew that traces fiance was out for the evening and would be home later he had done some strange things he had you know cup tracy's cheeks real hard hit mentioned about coming motivation so right then and that's whether he just wanted to have a cup of coffee with or it doesn't matter what he did was inconsistent with someone the safety of crazy at the time when he's in need in the premises this everything it consistent about the surrendered defense mistake of their defense in the defense of others anything inconsistent about those in other words you're not arguing that it couldn't have presented all three and not be it consistent and even if it were he still is entitled to present any defense is that sort of general rule of law defense as it applies to home invasion is that the legislature understands that there's a number of offenders who just want to break into homes commit residential burglary they don't want to encounter any people they just want to get  now is that what you think the purpose of this is i'm curious because i hate i certainly don't think that's fairly up reasonable i thought there was some concern about burglars and women being slightly different tha but what happens is sometimes when an offender goes into a house thinking there's no one home they are surprised to find out that they're actually what is someone home yes or  someone comes home during the commission of the offense so then the legislature actually provides the defendant with two choices at that point they can immediately turn around and  the premises or they can surrender but there you are getting your interpretation stage well because that the is there something police history that suggest i can't sing you i'm just wondering if you have some support for your position i'm not aware of any legislative history however the there is case us saying that the purpose of the home invasion statute is to protect people in their homes so once someone immediately turns around and clears the premises were immediately surrenders that's providing some level of protection to the person in other words at least at least that person isn't going to have to deal with what frank here had to deal with where they're the defendant plays with them pointing a gun at them for ten fifteen minutes cocking the hammer back making threats slamming it on the counter obviously this was not a scenario that the legislature and vision this affirmative  the argument with regards to that the immediate need in the statute does not refer to surrender that actually refers to leaving the pr where i think a reasonable interpretation would be that the word immediately modifies both leaves the premises and surrenders but let's say it even if it didn't  surrendered you would still have to surrender probably you couldn't just name your first ten fifteen minutes because if that was the case then the offense of home invasion or aggravated not an intruder but the reality is and he even admits this in his testimony is he turned over his gun because he realized that the police were outside already probably ten or so hears tracy crashing through the window so of course he's going to think ok i've got to cut my losses now and he said he didn't he was afraid he didn't want anyone to get hurt and submit that he was worried about his own safety because she said at some point i don't want to look like a house of situation if the police had looked in the window and saw the defendant pointing a gun to pray who knows what might have happened so the defendant was really just trying to protect himself and cut his losses at that point he i mean he got himself into a jam when he went into the house we can trace he was going to be alone and now he's has this other person to deal with which was totally  i believe it was either way i'm sorry it was tracy's testimony tracy testified that frank came in the front door and the stairwell that the defendant was talking about that business just over the basement and it wasn't uncommon for there to be people coming and going even at night and making noise so this this story about frank seeing the silhouette in the back is really undermined by the testimony about the landlord having land scaping business and the fact that frank came in the front door but defendant would not have even seen frey come in the front door but i think it's all things that really relate this isn't really the legal ball so i'm not giving you this if there's slight evidence the court can give the instruction yeah my point in saying that it wasn't believ properly instructed the ultimate question is were the results have been any different and because of the overwhelming evidence here and the fact that the jury did not that instruction had been given that the state had to prove that to defend it wasn't justified in using force and get or you had a different situation there you had four different offenses offenses right and if the jury was instructed i'd be without lawful justification on every other offense it temp and every one of those kept the instruction but that he aggravated discharge was singled out without incident exactly so the court found that the jury had received mixed signals and the court said that the error there with wasn't that the jury had less can strewed the meaning of self defense or that the burden of proof had been reassigned the court found that the error there was set the jury had no way of knowing that the but they were they were given the instruction saying that the state had the overall burden of per se on a reasonable doubt and also you didn't have the inconsistency here where it was given so on the home invasion but not the illinois supreme court case of washington which involved a failure to give a jury instruction the court said that it's not subject to automatic reversal and that structural in other words they're going to be cases where a jury instruction and error a monster reversible error but there are also going to be plenty of cases where it doesn't because when you look at everything the facts of the the instructions that were provided the court to make a determination you know would the fact have been different and so it in washington where the defense of requested the instruction they basically applied a harmless error analysis so that your supreme court contemplated that there are going to be a number of cases where yes there's an error in the trial process where you know it the instructions weren't perfect but it didn't affect the the fundamental fairness of the trial and that's what it has to do is when you look at all the evidence in this case and you assess the credibility of the defendant's version of events no reasonable person would have believed defendant's story because so many things heat he tried to explain afterwards he tries to explain the his comment about coming down naked he said oh it's a quote from a movie which doesn't even matter he tries to suggest that oh that there was slightly ajar and i just was being you know it kind of open now the reality is tracey was so scared she didn't want to be alone he thinks she's going to leave the door unlocked unfolded she was so scared she had she called her boyfriend called a friend to come over she didn't want to be alone she was terrified and then when the defendant comes in the house you know he doesn't do what a reasonable person would assume that someone would do under that situation which is to protect tracy he doesn't call out his he proceeds to terrorize frank for at least ten minutes that's not that's not some one coming to the rescue he didn't call the police there's so many things he could have done if i mean imagine really if if that was the law one time anyone saw something suspicious down their street were going on usual noise saw someone go into a house a neighbor to go to that house with a loaded gun a three fifty seven scene i thought there was an intruder and he actually said the words i made a mistake so this is not something he's just creating when he's sitting in the chair it's frozen not having a free card that could've been something that they could have charged is not in use of the weapon it doesn't mean that they have to pursue the home invasion the facts as far as the sphere that tracy had just had no way of knowing that she was in any way shape or form afraid of him she had hung out with them the entire evening the last words that she said to him  fiance and i will be coming to your home tomorrow morning to help you with your computer my fiance is on his way home by the way so last thing he heard was that they're going to come up and help me tomorrow morning fiance is on the way home he didn't have any idea maybe that this really psychologically damaging experience to her and regardless of what she believes in her mind can't be imputed to what he thought when he entered the home jim did say as far as the surrender goes that he believes that the police are outside we do know when the evidence shows from frank and from the police officers that the gun rez this man told and he had friendly surrendered before the police picked up the phone and call frank even said i didn't even know the police were far as the looming figure that they said that no reasonable person would believe that he actually could have thought that someone was there on the property the parking lot was in the back so trenchard had wrapped around the building some around and mr shore's eyesight to even get to the front these are all factual questions that could a jury could have worked out had they been properly instructed as far as the meaning behind the surrender defense the home invasion statute provides for the accidental residential burglar because the home invasion as you commit home invasion once you know that someone is present in the house so if i intend to burgle your house and i'm inside and i don't think your home once you come in and i see you it's not just surrender immediately leaves i'm not guilty once i'm not in the was i if i don't reason to believe that someone is there so i think that the surrender statute could accommodate both the accidental burglar and the accidental person who makes a legitimate mistake counsel said to the jury this man made a mistake the trial court in sentencing said you made a mistake one mistake mr shand said i made a mistake even frank when he was talking about the rear conversations it was saying that mr shaw was confused and didn't really get it until the end of the just given a definition they were not sure what the burden of proof was they were not told that it was of the state's burden to prove beyond a reasonable doubt that he did not have the reasonable belief in needing to use self defense this was beyond more than anything that were you know commonly occurring this