at least certainly gives the jury something something to contemplate and frankly a choice between two divergent to divergent scenarios and it only by the testimony of there is certainly there there is certainly a strategy that can be followed in cases like that and in cases where that  broadly it's considered in the realm of strategy but in this particular case the strategy revealed in the court below is counsel thought well what the heck mr rutherford will testify made in the time opening statements as i recall where were given to the jury was that there was still a question of whether any previous involuntary manslaughter charge would be  would almost seem to be dictated especially when judge lyons apparently was willing to follow the procedure whereby the jury would get all the other charges to be heard and get a copy of the conviction but was just telling us he had been convicted of forcible felony i think is my understanding of the record correct i thumbed as i recall the record defense counsel said he was willing to stipulate to a felony and i thought it had been although i tried to bring up the record on my research illinois lincoln it told me i couldn't i couldn't see it but my recollection was it was either and then the receive evidence i know that so sure that either attorney use the word forcible so i'm just wondering just wondering i think defense counsel protected his client by saying early acknowledge versus strong who by the way i represent and be strong want to loan out on that particular decision but you know where if counsel asks then the there can be a suggestion that the case say there ought to be a cohesive strategy and there are to me a strategy that is served by leaving the accounts together this strategy i guess would be well you know we don't want to and try the case to two different triers of fact but when the judge is willing to say no we'll actually will use the same jury and we'll st least you can you know you can hold and you can try the case without any knowledge about felony and if the defendant as he did in this case once he hears know that demand slaughter is coming jury to find the defendant knew his child was in the back  to prove help prove the state's case statements that it's not quite that simple there's there's more evidence that pointed to the defendant's guilt of course the defendant defense counsel mentioned dollar junior sister her text messages her text message conversation with with krishna was actually admitted as an exhibit i believe it was exhibit twenty two and she confirmed it that was the conversation that she had with her sister  and the conversation included texts from christian that dollar it had shot her so that's obviously significant substance of evidence and that and i don't i don't remember the record specifically but i don't believe there were her those are obviously all very significant statements in this case there's no denying that but the state does not believe that there was an objection to those statements of the the jury could use those however they would like defendant did not do the shooting it makes absolutely no sense that he wouldn't he would number one flee the scene and number two he would check in later on how his girlfriend and son are doing that any rational  would pretty much discount that story outright that's that's just not what somebody does in a situation like that if they want the shooter of course makes absolute sense that this man was the shooter that's why he fled that's why he didn't shooter i'd like to ask you a question about intent he was charged with and convicted of attempted murder that's intent to kill yes defended in his brief argued that the fact that he didn't continue his attack even though the vehicle was incapacitated that contain the person he was shooting at that that was somehow in evidence that he didn't intend to kill if you tend to kill he would have finished the job but there are cases and my argument i think in my brief satisfies it quite succinctly that he doesn't defend it doesn't have to continue his attack in order to for the state's was established that you intend to kill he fired four shots he could have ran out of ammunition he could have just come to his senses and laughed because he realized what he had done and i think the fact that she testified that they were still together they were still a couple during her testimony shows that this man could have you know snap come to the senses and laughed so the fact that the fact that he shot this person at close range is is evidence in  itself of an intent to kill but the fact is he probably just an unskilled shooter and the fact that that she survived that attack it's just dumb luck really so the testimony was that she her injury was a grazing injury yes it didn't it was not through and through any where is johnson raising i believe you're right a bit was the car i think it was just a passenger somebody well but if you really just trying to scare her i don't think he would have hit her at all i mean i refused i don't believe the jury would think that this man was such an exceptional shot that he was able to put the bullet in you know right next to her neck and graze her you know if if this was an inch to the last two inches left she probably wouldn't have made it i i think if it's a stretch to believe that he's such a good shooter that he could place these bullets wherever you want i think and in the  heat of that moment that was obviously a very intense moment in his life and so expect him to be able to maybe you know fire as accurately as someone who really you know wants to kill somebody i don't know if that's realistic expectation i i again point to my brief in the section where i explain that there are lots of cases that kind of deal with i was actually surprised that there were so many cases situations that really are very close to this and that agreed that that's what the involuntary manslaughter prior conviction established and the characterization of it as a forcible felony the council agreed with it so that's why that proceeded in that manner and of course mr macintyre necessarily went into the ineffective assistance aspect of that decision reversed stipulate to it and for failing to move to sever regarding to stipulating to it the state summits that all of these charges being tried together but the jury was going to learn that the defendant had been convicted of a felony well i don't remember your honor honestly i don't remember covering the ten year aspect of this maybe mr macintyre dozens brief regarding whether or not that was a forcible felony i believe counsel's argument and again correct me if i'm provides the fission performance it's not ineffective assistance under strickland if the defendant is not prejudiced by the decision again if considering that all of them are tried together the jury was going to find out that he was convicted of a felony to to prove that to prove count six and that coupled with the overwhelming evidence of guilt leads the conclusion the state summits that the defendant was not prejudiced by council's decision if we're talking about council's decision of failing to move to sever count six that the forcible felony which involved a forcible felony the state's admits that council's decision was reasonable at the time we need to client to testify he was going to testify and the statements that it was a reasonable decision at the time if you thought counsel's going to testify in this conviction was going to be introduced as impeachment during his testimony  n counsel's argument against bifurcation was reasonable because that's what he expected to happen say summits in hindsight obviously that turned out not to be all that reasonable because obviously the defendant didn't  the court was going to rely on the fact that there was a prior forcible felony to enhance punishment due to the presence of a firearm would you not agree that the jury had to contemplate that and  in i would think so yes yes class to the forcible aspect it also made it a class two if found and had a prior conviction their record i believe establishes that defendant did have a prior conviction for the same offense so it would still be a class two anyway if the if the court gets to convictions and sentences in this matter and if there are any other questions i'd be happy to answer them and then i suppose there really isn't isn't an objection that defense counsel may there is some discussion i think in a couple senses in the record where the where the judge wants to you know i think as i recall the prosecutor says it's for impeachment the judge wants to say oh no it's for is for substance but then there's a sort of touch on that and move on the other thing also in terms of the sufficiency of the evidence we also have included although i know there are cases to the contrary we haven't flowed in those cases in which the courts have said so i guess it is the least kind of a two edged sword in this case you know if the state wants to argue in which they did i think significantly at trial that this washington was was a liar a of that particular statement if that would have come in otherwise as an exception to the hearsay rule however your point is well taken that it's unlikely the state would have offered it for that purpose they seemed oblivious to it felony you know goes to zero goes to the integrity of the process i think this is a much more the integrity of this trial is a much greater level could be thank you thank you we thank both of you for your arguments this afternoon will take the matter under advisement and will issue a written decision as quickly as possible the court will stand in recess for a panel change