and he was denied the right to testify in his own defense because his attorney incorrectly advised them on the law in the right to testify this is a right that is not only a fundamental right this is perhaps the most basic protection in an adversarial system such as ours as they have been explained in a series of post trial letters that he wrote the terms of the trial before he wanted to testify on defense and he would have testified and his own defense however his attorney james deadman incorrectly advice him that if he testified he would be impeached and therefore look bad in front of the jury with a prior home invasion charge which of course incorrect because of these claims of the trial court appointed the public defender to represent anthony at a critical hearing where he testified the same mr duncan was given the opportunity to explain himself at this hear it is important to point out that when you look into the the colloquy here mr varian's answering these questions yes no yes no hundred he remembers what's going on in the trial yet each instance where he's given the opportunity to explain whether or not he incredibly buys anthony you're correct your honor however because of the the the fundamental nature of the the right to testify this prejudice in a circumstance like this can be established by if there's a reasonable likelihood that he would have testified and this submit to this court that in a circumstance like this where we have sworn testimony it's on rebuttal there are no contrary factual findings and the testimony is not inherently unbelievable i submit to this court that that in stepping into the shoes of the trial court deciding the end effectiveness claim that this court should take the testimony is true and of course if this testimony is taken as true it clearly demonstrates that anthony was denied the effective assistance of counsel and correct advice of course is never a matter of trial strategy and which satisfies the deficiency of the strip with analysis and again again in a circumstance like this prejudice can be as the state of trees prejudice can be a stablished if there is a reasonable likelihood that he would have testified and again if taken a shrew the test anthony's testimony establishes that he would have in fact testified and so this record doesn't establish that he was denied the effective assistance of counsel the fact is anthony had a fundamental right to decide whether or not to testify and only half and wanted to testify that he would have testified and that's what we have here your honor so even though there may have been some other reason for him not to testify even if i guess i'm wondering how does that pla i don't i don't believe i mean just because there may have been some other reason for him not to testify i do not believe that that it anyway undermines his sworn testimony if rankled here and if he wanted to testify in that he would testify but again the fact  he did not get this opportunity pass by he made what proved to be in life altering decision made based on incorrect legal advice and it's for that reason that i ask that this court find that he was denied the effective assistance of counsel and therefore grant him a new trial i also like to discuss of course the evidence in this case which is obviously very weak so as this court knows there was a fight out in cruising lane champaign illinois roughly thirty people gathered to see this fight between a couple of men who exchanged words for a few minutes the state interviewed twenty people from those twenty people the state calls five eyewitnesses to testify at anthony's trial it should be noted these are people that are friends or family or some some way or other otherwise associated with does and ready of course is a victim here and yet none of these people in any way suggested that anthony was involved in this fight or the shooting these are people who themselves were either directly involved or at a minimum witnessed everything and yet none of them even suggested that he was present during or involved in this the shooting or street street altercation what about your strategic decision not to ask its own witnesses if anybody was even involved in this fight or the shoot it didn't even ask if anybody saw him before during the shooting i mean what what does that say about the state's own assessment of the strength of its evidence it didn't even ask its own witnesses these most basic questions johnnie the very first the very first witness that the state called here johnny campbell he he's a young man who who knew anthony from high school he admitted he didn't particularly care for anthony  he was directly involved in this in this fight in this shooting in fact he was one of the election targets of the shooting and yet when asked in cross examination did he even see any that night he said no which seems exceedingly unlikely if as the state let me first note there this fight was going on out in the street for for a couple of minutes were there just exchanging work yet and yet none of the people that are better are in that fight suggested that anybody had any involvement in this fight or that or the shooting that that transpire any event as entirely contradicted by everything else in the record and it's contradicted most importantly by the uniform testimony of the three people who did see anthony that night there were three women to tiffany first woman she with who knew anthony and yet according to her testimony he only enters the sequence of events sometime after the shooting after the act the last death and it's important to note she was actually interviewed the night of the shooting the next day never mentions anthony at all when asked the trial why didn't you mention it in her explanation i only there was only asked who is involved in this thing that's why she didn't mention anthony going to see essentially testify the same thing there through everything witness everything out there in the street he did fit the description but anthony nonetheless again only enters the at the sequence of events after the shooting the fact is there is nothing in this record that suggests that anthony had any involvement in this fight or the people the five people the state chose to make its case against anthony none of them suggested he was involved so to me it seems entirely appropriate to suggest that ok well he was called the murder weapon after the scene you know the bad facts it that but know obviously this court cannot decide this case on well you didn't even ask the question i i don't think that that's accurate but i do think it's important just to note to to to keep in mind that the state did not even ask its own witnesses if anthony was involved in the crime that they're charging for didn't even ask of and of course you're the state's central theory felony murder the fact is again any criminal act that anthony committed and the sequence of events only occur after the act causing death and that is not support criminal liability under the felony murder statute so even if anthony committed this mob action even if he ate in a bed in this mob action and that way committed a mob action which of course as i explained in the briefing i don't believe he did either but even if he did this record is clear that his involvement in this sequence of events only occurred after the act that caused dea the only murder depends solely on the cause and effect relationship between the defendant's conduct and the resulting death imposed liability the defendant must have set into motion the events that led to the death or in some way contributed to the death but of course where his initial criminal act occurs only after the act that caused death he could not have contributed to that that there is no cause and effect relationship between his conduct and the resulting death there can be no criminal liability here  anthony a person in the situation such as anthony is at worst what has been called not expressly recognized in our state but what has been called a late joining aider and abettor which is essentially just somebody who joins a felonious enterprise phoniest activity but only after activists but again only murder statute does not apply to such a person and what we have here we have this by a get out in the street going on for a couple minutes these people are actively involved simulate excuse me seemingly to everyone's surprise tiffany's house they say they heard no shots there after people start collecting themselves they see that unfortunately doesn't raise on the street people go to her aid they summons nine one one and it is only at this point in time this is the very first moment and this entire case for any of the evidence suggests that anthony actively enters the sequence of events it's only after the act that has caused death and because of that he simply cannot be held criminally liable for this murder it is caus unrelated to his own finally i'd like to briefly i'd like to briefly just address the prosecutorial misconduct in this case the state obviously had a very weak case here and and anthony out there in the street she just injects him into this situation were none of the evidence suggests that he was out there she just does this another another major hole in the state's case here this shooting by all accounts if it starts on the street occurs entirely out in the street and then he is seen with a shotgun afterwards there's a strike but of course there's no there's no shopping shells out there suggesting he was actually involved in that in that shooting that led to the death but of course there is this one probably because this fourth of july would maybe get away with it but tiffany explains this essentially this pile of all of the yaar even though nothing suggested that pile balls in the yard was related to this murder that by all accounts started and occurred out on the street the state incorporates those bullets and the are out into the shooting industry and this is particularly prejudicial because this is if anything the lone piece of evidence that in any way suggest that anthony possibly could have been involved in this thing information to the jury and closing argument oh well shooting shooting bullets out of a gun destroys d n a that's not true in the state concedes that that's not true is there any evidence record yes or no there was she just said it  again so so the only supreme court has in it when we point out this is i think i've described three of the fifteen instances address in the briefing the only supreme court has passed recognize the synergistic effect of a pattern of misconduct like this can deny a fair trial we have no shortage of it from the various appeals to term motions to the mere relentlessness statements of fact testimony and improper arguments and and the closing argument there are quite a few pages in the record that don't contain a mistake in a factor testimony justice holder white asked the question are we allowed to draw inferences post conduct this court has absolutely permit the troll inference of supposed conduct and it has and just disconnect has concurred in two recent opinions that talk about it in one of those cases justice holder white was lauded by justice siteman who was the offering judge for admitting such evidence and those cases were philips and grimes those were cases involving accountability i'll talk in depth about felony murder and accountability shortly an initially i also want to address this issue of  there is a series of things that happened in this case that led to the allegations of prostitution misconduct i noticed just spoke seem somewhat dissatisfied with the representation of the state's closing argument during the opening here the are four basic things that defendant complains about here one is the testimony about the victim you'll see that defendants brief the quartern quote death video the photos that were presented to the jury the justice holder white  brought up and then the alleged misstatements of fact at closing and there were fourteen or fifteen of these allegations let's talk first about this alleged testimony about the victim being so prejudicial and horrible i would like if there's any doubt in any panelists mind in this case about the prosecutorial misconduct in particular but also the sufficiency of the state's case i would challenge each member of the panel to to read the record in full look at all the exhibits read the defendant's statement to police on the night this happened look at this video that the defendant alleges is a death video and then look at the record with respect to the request from the jury for these photographs and the interaction between the state's attorney and the trial judge who is the individual responsible for submitting the exhibits to the jury post requests and the defendant's other acquiescence and permitting that to go to the jury i actually disagree with defense counsel in this regard i think not only did defense counsel below do an adequate job given the facts in this case i think counsel did what they could to try to demonstrate that the state didn't meet its burden of proof o respectfully the state doesn't send back the the trial judge sends it back but this state gives it to the trial judge and saying here's a p and c which we that's had a request for photos of two people that's correct and we passed a b and c which is p and see an accident and invert this is that look in context this is why i say i point to the to the record in reviewing this the idea is here at defendant posits in his brief that this is some court important ploy by the state's attorney to pressure just the jury with respect to this photo without a shred of evidence let's say for example there was an internal or an assistant state's attorney that they have some affidavit from that said yeah i heard counsel in the halls say we better get this picture of the victim in front of them they want to see the two defendants that's not what happened here there's no evidence of that in this case it was a mistake it but his was the pictures of the two gentleman there mopes he's charming young full of life i'm sure and if this goes to prejudice i might concede  that that i shouldn't say i'm i can see i didn't see that this was an error they asked for a few pictures it's obviously an error the question here is couched as prosecutorial misconduct under clue in johnson not as ineffective assistance of counsel i understand i unfortunate in this sense and i think i hate to sound cliche but a defendant is entitled to a fair trial not a perfect trial this was an error it was an accident your honor this was there's no evidence whatsoever and in reading this in context if this were reported as defendant suggests it was the worst doggone ploy i've ever seen employed by an assistant state's attorney which is to try to slip in evidence and then show it to the judge and show it to defense counsel before you do it it's an awfully bad plan well you've already got wonderful evidence in a box of sweets she has and she's married to testimony about the victim was a third as long as the defendant summary in his brief when you look at this witness that's called the victim's and the state asked a number of initial questions about who she was and what her background was the aunt responded to those questions even though the defendant stipulated to the fact that this is the person that died here the state's always entitle to prove that but that's not the only reason that i believe the state was entitled to illicit edition all evidence from this witness although on that basis it's sufficient heart of the defendant's defense in this case was in  fact and this is really illuminated if you take a look at the record look at the closing argument was really driven at look maybe there's another explanation how do we know this is a bunch of gang members and folks that are affiliated with gang standing out here how do we know someone else didn't want her dead that was part of the defense in this case that someone didn't take advantage of this situation come up and essentially sasson her under the guise of stray bullets well part of what the state had to present in this case was that she was not affiliated with it because folks like the defendant she was an innocent bystander who had two children and a husband who was happen to be in service right no mention of the military the word services use was in service in another state that's the entirety of the testimony of this president in that regard so you know that's being proactive i really comes in first accountability charge overwhelming evidence that the defendant was guilty he might interesting i think the best way to illustrate this is to go through it so that you can visualize where these actors are playing out what happened here but as an initial matter i will just tick through a little bit of the evidence that was presented by the state to prove these points and then i will walk through what what i proximity of the defendant's location to the flight three the location of all the shell casings not just the number but the location of the shell casings the testimony of when you shot and tiffany immediately following if you remember from phillips and grimes part of what the court was permitted to consider on appeal because the fact finder was able to consider was the the idea that why i think that took place and and why that's a reasonable logical inference in this case five defendants presence at the scene the state didn't have to elicit defendant's presence from any witness in this case he admitted he was there so this defendant is arrested with the murder weapon again from from grimes and phillips this is well accepted and this goes back to a place where i wanted to start and that is on what i  believe is the most immediate charge in this case and that very easily provable i believe he's also guilty of felony murder there is a general verdict form here but he's clearly accountable for this first degree murder defendant make some hay  brief about how the state had to demonstrate mob action in order to get there so that he's accountable for mob action unfortunately that goes to the if for defendant that goes to the felony murder charge  defendant was not found accountable for mob action here that if it was found accountable for first degree murder now under the countability statute five dash to seat either before or during the commission of a an offense and with the intent to promot facilitate that commission he or she solicits aids and abets that's the first part i know this court is well aware that there's a two pronged approach approach to accountability one is an intent i intend to  bed someone so for the second is common criminal design and common criminal designs precisely what the state proved here in spades common criminal design any act in furtherance of that common design committed by one party are considered to be the acts of all the parties to the common design or agreement and are all equally responsible for the consequences of those actions causing here that's exactly what we have here now defendant says but wait a second being at the scene isn't enough ok so let's say the state said i was at the scene and i was there shortly thereafter being associated with people who commit crimes as an off the statute speaks of that it goes on other circumstances by their tribe or of fact in determining accountability here the legislature is specifically anticipating this type of case and the type of case that we saw in grimes and phillips where you have to make logical inferences because the legislature and the people of the state recognize that defendants often don't come forward and say oh yeah we were out there gang banging running around firing weapons up and down the street and telling on each other they recognize that now back to my point about laying the scene this is important because when i initially picked this case up and read defendant's brief i thought well this is not good because it reads as if the defendant is off in some yaar quarter mile away were all this action is taking place in the street and back and this goes back to the exhibit that was presented to the jury where they could see where these houses were located and where the shooting took place where the victim fell sixteen zero seven sixteen zero five sixteen zero three five houses down from the corner of the warden and cruising where people who's in there shirts getting ready to this fight escalates defendant admits in his statement that he is quote unquote posted at sixteen zero seven the house right next door he's posted in his statement doesn't say i wasn't there i wasn't involved in all this he says well i didn't fire the shotgun i just hit the guy who have the shotgun with the stick knocked out of his hands picked it up and put it in the trunk of my  ok maybe that's true i doubt it but maybe that's true he places himself at the scene and he's actively involved by that statement in this common design which is the fist fight this is potentially felonious conduct that's going to take place in the street it doesn't even have to get to mob action although it does then six you know through the house right next to sixteen zero five where this fights taking place is where the black s u v s park where the and this is where the campbell brothers take refuge behind the car and then cut across as they flee the gunfire to tiffany's house which is right around the corner corner on now backing up to sixteen zero seven where the defendant is posted a series of nine millimeter shell cases are found there seven forty five caliber shell casings are found there at the other end so so now the fight that's on looking at it that's on the left side of the fight go firing east toward where the victim is line there are also seven forty caliber shells on the other side of sixteen zero five which would have been firing back toward defendant and his gang affiliations the victim is lying in the street there is a shotgun shell found in the yard sixteen zero seven ok there defendant came up and fired the shots now i want to pause here because this is where i think it is very very vital that it anyone who has any question about prosecutorial misconduct in this case and the evidence looks at the dash ca video that was provided here it's dark when the police show up they pull up to that corner of thorton and cruising and that's four or five houses down from sixty no three so it's sort of a close neighborhood proximity situation the defense flying at the i'm sorry the victim's line at the end of that street the police are twenty five or thirty yards back the squad car shining the dash cam on to this alleged dead video i see i'm getting number of police officers trying to keep people back including the defendant the reason that the state presented this video was not because it was some while death video that was going to inflame the jury but because it showed the defendant and this is precisely why the jury wanted to see the photos of the defendant at the end of trial because he was wearing what he weren't that bad on that video and they wanted to see if that was the guy that a seemed to be intimidating nisha when the police were there under the guise of i'm going up to check and make sure this is not my sister when by that time he knew for sure it wasn't his sister and that was the state's case now defendant might not agree with that but that's certainly in the context of when it was played at trial i mean that's i'm talking about reasonable inferences that would certainly be as i said in my time's expired may have been hits that is certainly a reasonable logical inference that based on show that there's a dead body here this was what the state's case was all about they they tied the defendant to the scene because he was a sixteen zero seven with a shotgun by his own admission maybe he didn't have the shotgun immediately but at some point held the shotgun during the altercation and allege that he swung some stick to not get out of san puts himself there you get to the end of the street where immediately tiffany angry nisha say he approached us saying we're those in words at as if he's chasing them those are all reasonable inference it's show that this was a common design that that led to that and grice and and and philip stand for that proposition absolutely it in fact that i said it's twenty five or thirty yards away maybe but i would say at this point they're coming up to the corner of the world name cruising and all of the many of these actors are moving in and out of the frame  and don't forget when they arrived when the police arrived this was after me more than yes i'm asking if you look at the video yes absolutely you see the defen you do and the reason i say the time for that mr robinson i don't i don't but but what you will notice when you view the video is that the defendant is the individual that the police officer manually has to push back away from the police line that's the that that's the person that you're looking for and the reason why i know that's him is the same reason the jury said because they identify him by the clothes that he was wearing and the testimony presented in to see to that extent it's relevant at that point time but it's also important to point out and please forgive me i don't have the exact time of course but i believe that this video runs for roughly five minutes of this officer working on this young woman for five minutes before anthony enters the scene of so so although it may have been relevant and it towards the end of the video so to speak this this showing the this officer working on this young woman who senselessly lost for life  it seems like it in context it appears to be a ploy to inflamed the jury and that expense accounts of my very next point your honor and that's what i want to point out things as defense counsel did a fine job here and i most can see i inadvertently made a mistake in my reply brief i said defense counsel made no objections that's of course not true because there was one instance where the judge asked him so are you going to object to that he says no the judge explains well this is why i think you should attack and he says well in that case i think i will that's a loan objection so we have one objection so i do apologize for my mistake in the reply brief you know as to the photo again mr robinson suggests that while this might have been a mistake well just as there's no evidence no direct evidence that it was you know any malicious intent there's no evidence that it was this mistake and frankly given the coalescence of facts all misconduct that preceded this photo it doesn't seem to me like it's reasonable to suggest that it's merely a mistake it certainly seems like a concerted effort of the thing i have to point out this this mr misuse and minutely she only testified for two or three pages in the record however it has to be pointed out that the state called her up there and deliberately this city each piece of this information that yes there was a mother that she i mean this was not stuff that was gratuitously stated it's not like misuse went up there and just by chance mentioned that she had children which would perhaps be somewhat more acceptable the state literally elicits each piece of this information the sense as though she has siblings yes well how many three brothers precess her two sisters i think it was like every piece of this information is shared kids yes how many to what are their names  suggesting a number of conspiracy theories of sort here that i'm really not familiar with and i have i have thoroughly read this record of but but but these these various suggestions i mean i just don't think the state should be trying to take somebodies entire life from them fifty years in prison this young man is facing and in the suit offering to this court conspiracy theories about how he may or may not have been involved i don't understand what you mean th roughly twenty pages and his closing argument where he just it seems like he was not paying attention at all at trial i mean it's as if somebody just walked in and just decided to say some things on behalf of a young man who was was facing losing essentially his entire life and i understand that there are cases where the state is relegated to relying on logical inferences because they have nothing more this is not one of those cases this is a case where there were twenty people the state interviewed who who saw this entire thing there were five people who were actively involved in this all of which saw all of this go down and none of these people at the time immediately after the shooting or or even in their testimony none of these people suggested that anthony that andy was involved in this matter at