request a withdrawal instruction and his failure to professionally handle the late discovery tendered by the state i'd also like to cover just a few points under my prosecutorial misconduct section of the break this case is about a twenty two year old college student with no violent past who got caught up in the botched robbery of lionel reed it's a robbery he did not want to participate in and he communicated as such to his co defendants burns and davis he also tried to prevent the commission of the offense by depriving codefendant urns ways the jury certainly considered evidence that he did help plan but the jury also heard evidence that he refused to help plan and it was up to the jury to weigh exactly what he did and the only way that they could effect effectively do that is if they that he while throughout throughout the afternoon when davis first came over to his house he refused to play and i'm here his to call read as requested by davis he refused to help plan the robbery in terms of mapping out exactly what davis should also refused to get out of the car when codefendant baron said hey what are you doing here if you're not going to get out and go how rob him when he finally did get out of the car he was supposed to not only created diversion but also provide crucial physical assistance because davis had a gunshot wound to his left shoulder and william was needed to get in there and physically remove any material goods that they wanted to take and instead what he did was hand the money to to davis and well according to william statement the crime was not even in progress and how he had walked away and what was supposed to happen was that he was supposed to help instigate the crime he was supposed to get in the car taught to read completely distract him and then davis was going to pull the gun and william was going to go through his pockets and they were going to maybe even take the car instead what had happened was william said he walked over there he gave him the money and he walked away the crime had not even begun yet he looked back he saw davis pulled a gun a tussling ensued and then the shot was fired so he wasn't even there when the crime had started an argument is that that's sufficient for the judge for the jury to consider whether by depriving davis of you know the grand distraction and the physical assistance that he needed whether that was enough to make efforts to prevent the commission of the crime and again although william was required to do it s here is that defense counsel while he argued that the facts basically supported a withdrawal instruction or consideration of what he never asked for the instructions there's a good chance the trial court would have granted it but the but the main issue here that defense counsel never asked defense counsel argued it but it basically was an argument without teeth because the jury had no way to go with this information he had nowhere to go but defense counsel's argument that withdrawal basically could release him from it's still a roll of an example of when the facts support a jury instruction and defense counsel just lets it go and doesn't even bother to ask that's an it's a relevant example of ineffective assistance of counsel and here it's not enough sitting he's still guilty under accountability and felony murder both the only thing that can release him is if the jury was able to consider this withdrawal instruction and defense counsel argued for it but never asked for the instruction and that's that's the critical point here is that there's a good chance based on the evidence that the trial court would have given the instructions had defense counsel asked instead of asking he simply just argued it was a difference between his participation in the original scenario i guess we want to call it and his communication was wrong well and certainly argument is that the evidence of courts communication all along the way that he did not want to participate he refused to pla refused to call he refused to provide the physical assistance all of those are communications of his intention to withdraw from the scribe i mean he even said at one point today this this is your thing this is not my evidence to support giving the instruction and that's the problem here is that defense counsel argued that the facts accorded it never asked for the instruction and that and that was unprofessional without the full set of instructions the jury just didn't have really a full idea of what they could decide based on the facts and it was it deprived claim of a fair trial another example of counsel's ineffective assistance was his unprofessional handling of the late discovery tendered by the state and this this happened wrong after discovery was complete the state presented phone records phone records that for the first time leading to williams phone to read defense counsel does not have jacked he does not review the records and he doesn't even review the responsibility to find the records and then hand them over to the defense counsel or the defense counsel have some responsibility to find records with the i mean it's the state's burden of proof all along the get the records we'll see what well perhaps so and that and that further highlights my point that defense counsel really just dropped the ball in an unprofessional manner with respect to the phone records completely i mean again as you point out if he had a duty to actively seek these phone records on the day he clearly did not he was clearly surprised when the state handed these records to him didn't bother to read only one of us what he understood two different approaches to the same argument was have done in terms of a remedy even if the defense counsel had asked for a continuation brief brief passing of the case he could have taken the time to prepare a response to this new evidence the counsel for minute now let's talk about that interpretation of the fact defense counsel left a completely unanswered the facts support that there was an answer available we know from the phone records that the call was made it to twelve pm well at that time  meeting but it leaves the state open to say ok maybe he didn't want to do that but he was more than happy to volunteer and say hey use my son becoming an integral part of the plan when of course defense counsel and defendants argument is that you know this didn't happen at all he was completely disassociated from the planning and so had defense counsel come up with an answer to the state's argument that he volunteered his phone it could have rebut of this this argu house he could have picked up the phone  really well in the in the same sense in the same sense that the state had the opportunity to make up a story absolutely i mean his job was to respond to the state's arguments that they consider inferences from the fact that it's another inference from the fact that they gave this use the phone while william was out of the room we know that he left them alone for a while and again we know we know from the record that defense counsel said that he didn't bother to read the records didn't bother to read the really both sides if if both statements are tr should have been tendered by defense counsel were not tendered by defense counsel the trial court ended up entering sentence on the felony counts and also entered sentence on the armed robbery and it's our contention that the armed robbery conviction needs to be vacated in the felony murder if if this conviction is affirmed that the felony murder count say is he armed robbery conviction gets it's vacated and it simply because the trial court does have the discretion as he as the trial court noted in sentencing he does have the discretion to enter judgment on the most serious count for which the evidence supports which in this case as all parties have argued are wrong the way is know from several many many cases that the longer count will states that typically when there's a general verdict returned it's presumed to be guilty on the most serious count for which the evidence supports in several of the cases that are out there that tends to be intentional murder here we don't have that case but it still leaves william open to the possible of consecutive sentences and for that reason defense counsel again all he had to do was simply ask and we know that had he asked the trial court would have been required to provide the instructions or seizing the separate forms and he didn't do that and he left his client open to a much that really wasn't warranted by the fact now here he happened to luck out in the trial court did recognise that the facts only supported felony murder did recognize that that he did have the trial court had discretion to enter one other example where the prosecutor abandoned his obligation to see that justice was done and instead focused on the when is the demonization of a twenty two year old kid who didn't want to participate in the botched robbery the robbery went tragically wrong but that does not make william a monster the state's characterization of him as a coward with the face of evil was improper unwarranted and prejudicial it's the stuff of t v dramas there's no basis for it here and again with not in his look in statement he did it with respect to codefendant davis and the state response that that that opened the door but certainly it did not because again we're arguing were you into williams jury you can say almost anything you want codefendant davis because williams jury is not charged with determining his guilt or innocence however william of course that's their server sponsibility and so to completely do you mean eyes him and call him a coward but the face of evil sure well i mean notably and i think we need to have the same mind the sake never argues even on appeal that the facts fit anything other than felony murder instead they just sort of throw this plane get rule of the one good count out and and s hope it sticks but we know that the one we count is not just that a general verdict requires a judgment to be entered on the most serious type of murder it's the most serious type of murder for which the facts support and it's a me ask you that question repeatedly asked you know we think you're wrong it has to be mandatory consecutive and the jury says no you know i know the defense counsel did not request separate verdict forms but i think it's it within my discretion to enter it comments throughout trial shows that this afternoon is on the same page in terms of this was nothing more than felony murder there's been no talk of any intent for it to be otherwise and so you know this is the stage i think hoping that this court expands the one good count rule two to basically eliminate that second part of the whole thing which is the most serious for which the evidence supports and the their argument is more that the  murder everyone argues that it's felony murder even the state on appeal to not argue otherwise again if this conviction is affirmed at all it's really into the felony murder and the armed robbery conviction gets vacated thank you very fan in this case received a fair trial the fenice claimed his trial counsel was ineffective has no merit where the evidence did not the support the inclusion of withdrawal struction but the defendant fails to recognize the defendant in this case has the burden of showing that he communicated his intent to withdraw to his co defendants by words by actions in this case the actions he displayed do not show that he withdrew from his he even checked out the weapon to see that there was a bullet inside the chamber defendant didn't hesitate into getting in to his codefendant dorwin davis car knowing that they were going there to rob the victim in this case  role of acting as a diversion in this case the defendant agreed to wait in the car while his codefendant dorwin davis robbed the victim then he went up to him gave him the ten dollars as they box that he took from that was taken from the victim they went back into the getaway car they drove away the defendant took the gun and the shoe box and attempted to hide the shoe box and the gun in the trunk of the car all of these actions show the defendant's willingness to fully participate in this on robbery and eventual murder defense counsel chose not to choose this defense strategy because he knew that he was not going to win the jury was not going to be convinced by withdrawal instruction and despite defense counsel's argument that the trial counsel in this case the defense counsel argued to withdraw instruction he did not argue with trial when he mentions what he mentions in his closing argument he's attempting to minimize the defendant's accountability he's not arguing with  the that he needed that the defendant need to provide physical assistance to the codefendant because the the codefendant had been shot three weeks before then that's a theory that they're throwing out there that was not throwing out during trial that there's no evidence to support that he had to think that part of his role was to provide a physical systems the only the only reason that evidence was introduced was during the videotaped statement oh the defendant in which the defendant said i knew that the codefendant had a gun because he had been shot in front of my house three weeks before this defense there's nothing about him providing any type of physical assistance sixteenth just the day before the murder so i asked defense attorneys do you guys stick to these things i'm going to try to get the phone records for the seventeenth because when i was for can my case a couple months ago i noticed that there was an error so then i tried to get in touch with nextel which was the sole your provider nextel was able to send me exhibit fifty one which i sent by e mail to mr grey and it several days before monday along with the proposed stipulation i gave him the hard copy of this form record on monday and what mr grant each asked me was i am not stipulating that my guy called him and what i said was i am a senior guy called him i'm saying your guys don't call him the theory of our prosecution and it was supported by the defendant's own words in the videotape statement is that he didn't make the phone call to the victim his the defendant's family has used the codefendant made the phone call yes the phone was the phone his phone was used during this and you have to understand defense counsels in this case they already had the phone records from all the other co defendants and from the victim so this was not surprise for the defense counsel the victims for phone records show already showed that there was a phone call between the defendant's phone and the victim's phone before he even received these this is not this is not surprise he was not prejudiced by any by any of this he was not misled during this in any way so any claim that his counsel was in effect really has no merit  this court should follow the decisions in brave boy is defense counsel could have been concerned that the jury were given separate verdict forms the would have been easier for the jury to a found him guilty of felony murder as that would ban on highway you know you could have that step but when the facts of this case it's the on robbery the defendant's participation the evidence regarding the defense participation in the armed robbery was overwhelming the jury found him guilty of amare i don't think there should be any question as to the guilt of the defendant in the arm robbery when you have overwhelming evidence on the underlying offense what happens is that you're going to have that separate verdict there it's going to be easier for the jury to have found him guilty  felony murder when that evidence is overwhelming for the underlying offense than it is if you put it all together so it constitutes a trial strategy to not make it basically easier for the j separate it's easier for the jury to find him guilty on the phone to murder when the evidence regarding the underlying offense is overwhelming and if you if you if you put it all together if you don't the defendant guilty of the fanny for murder for the trial court if you look at what the trial court actually said when he decided to sentence the defendant to the felony murder as opposed to what he should have done which is the most i guess the bottom line is that is that separate separate verdict forms were not merited in this case and it's clear we've been repeatedly helped that it's not does not constitute ineffect that merits a consecutive sentence and this case and what i'd like to point out is defense counsel says yes there at the trial court found that there was that taste to his decision  sentencing order that he has been sentenced on count five one two one and three to merge into count five which is what sends him on the phone to murder and i know there were i know defense counsel did not specifically offer up felony murder and jury under the battle case i think that is within my discretion based on that case as there was discussion in the trial about whether or not the state would go rob just go on felony murder the the judge decided to sentence him on the felony murder in the case not because he there was a lack of evidence regarding intentional ongoing murder he found that he was concerned about this decision battle that came after the decisions that they had to do with the abuse or just finding abuse of discretion when defense counsel specifically requests separate verdict forms he didn't request separate forms it's not in the same arena as be able but the trial court in this case was concerned about what would happen in the serina based on that and not verdict in this case when there's a general verdict the case is clear when there's a general verdict you sentence him on the most serious offense and in this case it's the intentional murder right and he said one  right so so the quick to correct sentence in this case is he should have sentenced him on the intentional murder given him consecutive time to the armed robbery because it's mandatory oh buck up lot of mother or how about the correct thing to had that option what we're saying is he should have been found guilty on the intentional murder and he should have gotten we should have sentenced him on the hour and it should have been consecutive time that was the appropriate sentence in this case therefore at this point  people respectfully request that this your honour's affirm the defendant's convictions case and remand this case for a new sentencing hearing in order the trial court to enter judgment on the intentional first degree murder count and ordered that the armed robbery sentence in this case be served consecutively to the first degree murder sentence th state forgets that very critical clothing the part of the home that says when there is and i can read it from people versus credit in a general finding of guilty is presumed to be based on any good count in the indictment to which the and again although they argue that the the sentence should be on the intentional they do not argue that they're the support it at no point have they argued that the facts support anything but felony murder again if this if the state has their way basically as as you pointed out they're trying to have their cake and eat it too i mean if defense counsel is not ineffective for failing to request a jury instructions in trial courts hands are tied you've done away with felony murder and that's not what the illinois supreme court has allowed for the supreme court has allowed for the trial court to do exactly what he did which was ensure the judgment on the most severe form of murder that he found the proof to be applicable again it's felony murder if anything mind everyone was arguing felony murder there's absolutely no reason from the evidence that the state should be able to have an intentional murder conviction out of this so thank you very much