argument today although naturally i'd be happy to answer any questions on material not covered the case before you today is simple and straightforward we know that mr found was found in possession of cocaine and heroin but we don't know if it were challenging today is the exact amount of heroin you possessed it's well established in illinois that the state has to prove the weight of a substance when that weight is an essential element of the offense the illinois supreme court has said that this means the state must  each packet the only exception to this rule is when the substance is sufficiently homogenous to allow for random sampling in this case we have no idea whether each packet was tested and there for the state sales let's let's say let's say we  agree with that we have noise here then the question is who should have established the state absent your position is the state but to some extent i mean it is adversarial i mean this is an adversarial system and when the state doesn't meet what you believe it to be its burden is is that an incentive there too so that defense counsel doesn't have to do anything at that point if he's up to up to snuff on the law he can just sit back and say well they didn't prove or didn't ask the right questions i'm not going to ask any questions i'm just going to sit here and do nothing well certainly if a defendant has a right to bratz on the state's inability to prove guilt beyond a reasonable doubt and that's and that's what could happen in your honor scenario i mean cross examination is mentioned choose to test the credibility of the witness it's not meant to fill in the blanks in terms of an essential element of the crime and that would make defense counsel meet the state and state's b the night the nine packets in total weight one point three and if they were all equally more or less than an equal amount of substance in each packet how many did they have i think that's all nine you know it's  the thing that you know i think it goes back to rick mythic yeah exactly i'm not sure which the right but it's something that i think you really needed to know because you need to tell us what they should have done they certainly did not need to test all night and the question is did is there any evidence that well what facts do we know we do know that she weighed each packet individual right and then that raises the question what kind of good friends can be drawn from that as that was fact that she wait each of these nine packets individual can the trier of fact the jury infer that she not only took that step but then she took the next step which was to test each of those packets individually because it makes no sense to win even individually without testing them individual it mean doesn't that suggest common sense well of the state has two requirements they not only have to weigh the substance but they have to test it and  so the question is why would they go through the first step if they had no intention of going through the second step well and we do know that she did test something something did turn out to be positive for heroin we just don't know how much it was a simple question for the state to ask they did not they didn't ask defense counsel didn't ask the defense counsel i believe received some sort of a report from the chemist and maybe the report from the c that they took sheet she not only weighed them individually but tested them individually that report isn't part of our record but maybe that's the the explains why defense counsel didn't bother asking the crucial question here and maybe that explains why the state didn't bother asking that crucial question need either because it really wasn't an issue in the case that all of we refer you to your own free eight it says pray for determined that the nine pickets consisted of one point three grams you refer eckerd citation one sixty three re prevent conducted perhaps according to the my use the plural was incorrect if you look if you look at the record and in fact in the state's brief page honorable it makes it a little bit more clear that it's a singular tast and her response is also singular it's a small amount of powder and some amount of a small that sample and some amount of powder in that testimony she was describing the test that she performed and she would have performed the same test on each of the samples she wouldn't perform multiple tests on one sample so there would be no reason to describe them in her world if she was performing the same task over and over well this jones and this court and clinton and this court in its recent opinion and it's there have all said that without a finding based on the evidence anything more would be conjecture and speculation and this that's the general that's the general less than the minimum number which would have been seven why should it be doing three years because the presumption in this case is it would be reading into the backyard an element that has not been pr aides tell us why she would have weighed each other these items individually and stop there and not tested each of these items individually and maybe she did and reasonable inferences drawn from the facts from those facts run number one i would say that that lessens the burden for the state and if that exception while out of the state has no incentive to ask the required questions of their expert witness who sitting there on the stand i can understand the reasoning when we're involving a stipulation where both parties have agreed to boil down the experts testimony to a few key points and the courts have said you know what are we supposed to do basically our hands are tied you agreed to this this is not the case here the state brought in its expert the state is required prove the element of the offense which is the weights and as you pointed out it may not be on one packet's but it has to be up until the weight class that they're trying to prevail and that might that means my argument is unchanged no matter what the number of packets because judge requires that jones requires each packet to be tested this is nothing new this is not a hardship for the burden whatsoever you know even even how that would come out if what if that document that's was performed right and again i would argue that the stipulation part is crucial to that case again like the glove held they were actually talking about taking the evidence they practiced this whole discussion with the  the bottom line here aren't you really saying that this chemist engage an improper chemical analysis of those items and saying we simply don't now and saying that that the this we did know that she did that you'd lose so the only way you would with it is if she engaged in improper analysis of controlled some of the subs this is that were recovered is that the only way you would win right if it were clear from the record that those were the facts yes but that my argument is true truthful there's a there's a some part to that naturally which is again the state has to prove it it's not enough that the chemist performs the work behind the scenes the state has to bring this conclusion that he's not walking away with a pass he still remains convicted of something we're just asking this court to reduce it to the lesser included because of the weight element and have it not being matched by the state thank you very much  before you went before it began your argument is your office prepared to acknowledge that the direct examination of  chemist felt a little short of what would have been required to avoid having this issue brought before us are you willing to say that no your  honor in this instance the testimony was sufficient what we did was well let me let me put it this way was it sufficient to eliminate this issue from from prosecution of this as this court must do and further that testimony that was at trial in front of the jury in front of a rational jury was that one point three grams of powder was found in that individually weighed packets and then the final testimony was that one point three grams of heroin present fact in present by that forensic chemist was qualified as an expert at trial best certainly is sufficient to support the jury's rational finding that one that defense counsel certainly had something that's not available on appeal and that's the issue that's the merit discovery you had before you did not testify they did not test that chemist testing procedures did not test at the amount in this and one has three different color results the other is a different test but it doesn't show through that she tested each packet doing this particular these tests and each ok now i really don't know that's how they're operating but they have done it in certain cases this is just another case where it doesn't really the record doesn't clearly say one way or the other whether she tested each night heck if we know she'd wake them but there's nothing to distinguish one packet from the other i'm just going to test one and conclude that all the others would have passed it the same way well your honor that the common sense conclusion  nothing weighed ninety packets separate then we have the issue where she conducted the tests where there is no simple question saying did you test each of them separately but you also have is the you know did not follow procedure and the jury was sitting there with the ability to witness like you just set it not follow proper procedure so are you saying that it was her training to in fact i don wait each of these acts individually like the test he's activated is that's an absolutely i mean best the testimony that she gave when she was laying the foundation for her final the she laid the foundation explaining the tests that are done on these packets and then she gave her final opinion final kenyon that went unchallenged unrebutted on each and that is certainly sufficient to satisfy the finding of this rational jury in this case now the jo clinton cases and at their most recently i certainly receive issues but those are the facts of those cases cannot be implied into the testimony of our case here there's no ambiguity in the record with jones you ha this point so that's what i was going to ask you so there's a difference between ambiguous evidence such as in clear where it's not a bit where he obviously put evidence here there is no testimony that she did and you know that so is there a difference between ambiguous evidence or and the absence of now the testimony here well first of all the because the amputees there here there is no impure right of reading that into a court record and there is no ambiguity and again the standard is that all evidence must be viewed in a white most my primary sponsor is that we are not asking you to believe anything in fact that is our argument is that you cannot read something into the record that is not there that was the state's affirmative burden can we can we find a reasonable can we what what is in this record that she has a chemist would say this is it wastes this and there's that much hero in there if she didn't test it can we infer that from this record i mean i don't i don't think it's necessary i think that but i mean don't we have to get to that just to to to accept your your argument that she didn't test can we infer when she stated under oath in her opinion she she went through the tests she did she said she weighed them separately and she was asked what her conclusion was and she said based on a reasonable degree of scientific certainty i am of the opinion that this this package where do we go from there if the answer stands as an ets and then basically what this court may be ratifying is that the state only has to prove weight and some amount of testing which is completely contrary to right i mean it's the state's job to dry out these essential elements and by doing that it would ask very simple questions again nothing new in terms of requirements from the state i'm about exactly how she did pass and and how that led her to the conclusion without more there's just too much of a jump it's not allowed by jones and jones jones points out i mean you're on about it the point about the packets being similar and joe's right at the point that there's a big warning out there about lookalikes substances we simply don't know enough about all the substance in each individual packet just to make that jump to make that inference that they were in fact the same substance especially in light of the fact there's so