good morning your honor is may have to please the court i am rachel moran and i represent the appellant tracy williams mr williams raced for discrete grounds for relief in his brief i intend to focus on issues two and three but we'll of course be happy to answer questions about the remaining issues your honor is tracy williams was prejudiced by prosecutors that failed to disclose the most critical evidence against him a trial court that allowed the up discovery violation to go uncorrected and defense attorney who abandoned williams only viable defense this court should reverse williams first degree murder conviction and remained for a new trial for two reasons first the state committed to discovery violation when it failed to disclose a yes your honor this or any indication that the state was aware if specific statement yes your honor to indications and i'll go through them them each the first is that the state if you look at the direct examination which does appear to be intentionally elicited the state specifically asked did you have a conversation what did he say during this conversation and then the statement came out so it was it's not as if david greene just went off on a narrative that was intentionally elicited but the second even if this court thinks that perhaps the state i expected david reed to say something else about the conversation and the more important fact is that this state had ample opportunity to say it was not aware as soon as counsel ledge to discovery violation and the state never said that it said oh well we've disclosed similar statements that's good enough but it never said we had no idea this is going to happen and common sense indicates that would be the first thing a prosecutor a do if accused of a discovery violation say hey i never even knew that this was coming out so yes your honor that speaks to the fourth problem of the four prong test as to whether a discovery violation requires sanctions whether the state intentionally or willfully failed to disclose the statement yes the was aware of the statement here and it did not disclose the statement but before we even get to the four pronged test your honour's as your honour's are aware that the court has to determine that a discovery violation did occur and that is reviewed under into no standard the trial court here found no discovery violation but william with williams would certainly contend that one did occur the illinois supreme court rule for twelve eight to eighty two requires a disclosure of any statements made by the accused whether oral or in writing here the statement is as david read was a state witness he testified at trial he testified that after the incident occurred after shortly after a friend was killed yes your honor there is no question that the police report contains two indications the first indication is that a considerable time before there's nothing exact time frame but sometime before the incident occurred williams david reed and m the eventual victim in this case along with possibly days it's brother paul we're in the bedroom together and we'll when williams walked in he said something to the effect of hey you owe me forty dollars and it's not just it's not an actual statement before twelve a so to surprise the defendant or unduly prejudiced the defendant yes your honor is that the specific yes it surprised the defendant and defense counsel because they had no idea that there was a confession to this incident and explicit confession and that's what this was this was a confession why did you do it i did it because he owed me forty dollars that's the only although trial the reason and prejudice ted answer the second part of your question the reason it prejudiced williams is that this was the strongest evidence against him this was in fact the just as to whether the approach appropriate verdict was first or second degree murder this was in fact a very close case and that is one of the problems this court's love this court looks to is the closeness of the evidence here there's no dispute that williams killed the man but it is to whether it was done over the dats intentionally because of the debt or whether it was done in a will do this that was no surprise to you throughout the trial was it was known that there was some sort of because of the debts and here this is the only evidence that he killed this is the only direct evidence in the entire case that he killed him because of the debt other than this statement which was not disclosed the only evidence that he killed him because of the d was heavily impeached and repeatedly contradicted testimony of andre smith who is another witness that testified at trial that he did not believe williams carried a bat into the house but had a prior grand jury statement in which he said he observed williams carrying something that looked like a baton to the house that testimony was recanted by andre smith and discredited by david rieff himself who is certainly not out to protect williams but testified that he was the one who honor turning to the second prong the strength of the undisclosed evidence this was as i just mentioned the only statements that the state had that this this provided an explicit confession to the murder and the state in it brief contended that this was merely a statement that wants to motive and that there was evidence of motive already in the trial this was not just a statement relevant to motive this was an explicit confession to first degree murder but even if this was motive evidence th repeatedly stated that motive evidence does in fact meet the the second prong the strength of the undisclosed evidence because motive evidence is incredibly important although not an element incredibly important for example the supreme court in illinois people versus weaver held that the motive evidence is extremely damaging and in that case admission of a defendant's statement that she had had an affair prior to allegedly killing her husband was sufficient to require a new trial there are numerous that and dated reed as the a detective surveyed it testified david read specifically said it wasn't even an argument certainly not incensed they simply talked about the dads and then after that we also have williams unimpeached testimony where he says  that he was aware of the dad but that he told friends paid off when you can don't worry about it the reason he wouldn't sell friend more drugs was because of the dad but there is no there's no evidence at all that there was any kind of a heated discussion not a single witness ever said there was there is simply if your honour's look at this case yes it's clear that williams committed this act but it's not at all clear as to why it happened and his testimony that he did it after a friend attacked him is unimpeached no one else saw this incident that's correct your honor there's no real testimony about what happened but david reed was neither of them were near the bedroom under smith testified that he couldn't even see around the hallway to the bedroom and they were both heavily intoxicated under smith admitted to being intoxicated and david reid testified to an amount of alcohol that actually would have killed him if it had been true thirty six shots in one hour so david reed was i think it's safe to say extremely intoxicated when the incident happened turning to the third prong however the third prong is of it is whether prior notice could have helps defense counsel discredit the evidence here the two most relevant case some point are people versus hendricks and people versus aguilar and in both of those cases this court held that the third prong is met where defense counsel quote may have modified this trial strategy had he known of the evidence prior to trial and here that's exactly what we have here defense counsel stated that the motion  trial that had he known of this evidence he may well have chosen a different tactic called all together not have had mr williams testify or at least would have reserved his opening statement until after david read testified to see how the evidence came out and how strong it was against him but your honor's even if he had not changed his strategy it least at a minimum he could have done a better job impeaching david read his attempted impeachment was ineffectual it was one question it was did not elicit anything helpful or at least he could have had more time to think about how to argue it away and that's that that was the case some people versus matthews it which again this court held that the third prong was met simply because prior notice would have at least given defense counsel a chance to figure out how to explain th statement there should be no question the discovery violation occurred because this the state does not dispute that this particular statement was not disclosed and because the statement prejudice counts prejudice williamston was the strongest evidence l the state's contention i believe would be that you have the evidence that your honor that they intentionally elicited by asking specific questions about the statement and that they never said they didn't when defense counsel claimed there was a move very well if you're close with your your honor this is we would certainly say that this is the closest you ation as far as the strength of the evidence and the appropriate for him here turning to the second point however your honour's defense counsel was ineffective here when he abandoned williams second degree request and never once argued it in closing arguments here we have a situation is this court is well aware it is up to the defendant whether to request a lesser included offense instruction or a second degree instruction and a murder case mr williams here requested both and both prongs of second degree murder and reasonable belief in self defense and sufficient provocation and the court found evidence to satisfy it least to give an instruction on both of these crimes counsel then argued only that the appropriate verdict here was self defense where in some situations that may be a strategic call counsel can do that there's there's no evidence here one way or another as to whether that williams twice on the the elbow and the shoulder with the back so there was a mutual combat here which is one of the instances in which a provocation instruction as appropriate in the medical testing  lying on the bed as the prosecutor contended he was coming after williams but it was only with his hands in williams hit him three times with the bat that's not self defense and it was unreasonable in this case for the defense attorney to our to inform the jury that the only issue here was whether williams was justified that wasn't the issue this is a situation where he needed to cut his losses and recognize that the appropriate verdict here was second degree and argue it that way the jury never heard about second degree murder until the state's attorney got up and said essentially i'm not sure why counsel never argued this but you're going to get some instructions discount them they don't apply here and that's all the jury i'm hoping exactly and that's all the jury ever heard about that that way this was a close case in defense counsel dropped the ball when he court my name is carol gaines and i represent the people of the state of illinois respect to the discovery issue race here today it is a people's decision that there is no evidence from this record in this case that a violation of supreme court rule for twelve occurred first and foremost this record is replete with instances and evidence that the victim defendant a forty dollars drug debt is on it is an uncontested fact that this case in every way shape and form was about the drug that was own from the victim to the defendants it was funded in no in defense counsel's opening statement the defendant himself testified that there was a drug drug at that he asked mark for the money martin have the money the defendant had when he said david family came to this house he said your boy is mean money david free says i don't know anything about that it's not my you know kind of my issue he goes into the bedroom where the victim sitting on the bed he says you owe me money and mark says he doesn't have the money pertaining to me when much as he does now is money to spend it comes back out into the living room he says to david read your boy is the money i'll be back the defendant reaches home he comes back in five minutes with the baseball bat up his sleeve now andre smith testified at trial he was a question sometimes he said yes i saw it no i saw it yes i describe it no i did describe it describe it but his grand jury testimony was admitted as substantive evidence and fact he went back into a bedroom the defendant back into the bedroom where david was before and david i'm sorry where mark was sitting on the bed in david reid's bedroom and david reid goes to get some ice he hears two quick pops he comes back in the room he sees defend holding the bag over his head in an after swing position and my friend is laying on the bed where he had just been sitting with his head split wide open bleeding over everything blood splatter on the wall on the sheets on the mattress on the  defendant the home march the dead bodies in the bedroom and read it decreases and what you do that you know this thing called for in the police reports indicated that the defendant responded don't touch anything don't worry i'm not going to leave you holding the trick bag i'm not going to be clean anything up you know not going to leave you holding the bag kind of thing now it's important if you look at the cross examination of david reed and this goes your honor so the question you asked originally is whether the state ruefully elicited whether to even really really knew about it because what asks the question thinking that that's the answer she's going to get and then he says no he said he owed me forty dollars now if you look at the cross examination of david reed the defense attorney to an excellent job of cross examining because in that cross examination reed backed off that read backed off that statement and said well he didn't this is necessarily say it in response to my question you know why do you do it but he did say hey you boiled me forty dollars so it's a little unclear arguably from the record that that statement wasn't even made and therefore how can the state require to temper something that may not have even been made and the defense attorney wasn't surprising cross examining got that answer so it's questionable as to whether the statement was even made and put lines so that's you know that's questionable the think that the prosecutor didn't immediately say to the trail judge while i'm surprised i'm surprised it's right doesn't mean that she didn't know that statement wasn't make she just may not have wanted to to you know put that on the record i'm not sure why she didn't say that the record indicates that she didn't feel she did feel the statement similar to that i mean a statement intention made by this defendant you know your boy is me forty dollars i'll be right back and comes back with a with  and then he splits the guy's head wide open with the bat and i were to that point i would also argue is that david we testified it's his house it's his bedroom he doesn't keep it back in his house he didn't have a bat under his bed that goes to the defendant's credibility when the defense testifies hey mark friend came up with a bat he came up and that's when the mutual combat i don't know where that's coming from because that was never an issue really raised in terms of use for combat in this field for now but there was this ok for me is what a defendant say because she thinks she's going to say won't he told me it's ok you know don't worry i won't leave you hold the bag once she answers hear me forty dollars she doesn't focus on it she doesn't ask any more questions about it she doesn't do anything but him forward you know asking him the next question i think was something online so while you were too happy with what your friend had done and then did he say anything else yes he said don't worry i gave i won't leave you holding the bag so i don't think that from this record you can discern that this prosecutor discretion likewise with a trial judge in this in this case even if you find that that the state is somehow elevated in this responsibility to tender something they might not have known pretty does not end there the trial judge in this case consider all of those factors argued here this morning that are necessary to the determination of whether a new trial should be granted in this sort of instance that ruling is subject to an abuse of discretion standard of review the people would assert that the evidence in this case was not  closely balance the trial judge and analyzed that factor he considered it even taking the defendant's version of events into consideration even if you took them was true the evidence was still sufficient to find him guilty of first degree murder the strength of the o the third fair to be likelihood that prior notice would help the defendant discredit the evidence again the defendant's defense treated all he could do he discredited read read on cross examination and he called an instruction is tendered and given on the second degree on second degree murder that that the defense attorney must conform this closing argument to that instruction here that the instructions were tendered because the defendant wanted them just because the defendant wanted them doesn't mean the defense attorney then asked to structure his argument based on those instructions here in this closing argument the chick defense attorney basically chose to argue the facts rather than the law and you chose to argue that the state s justified in the actions in the state failed to prove it otherwise as prejudiced wrong there is no reasonable likelihood that the outcome would have been different had he argued on second degree it's second degree murder instructions are there any case law to suggest that because the lawyer asked for an instruction to be tendered and doesn't argue in closing that that is somehow not to my knowledge an honor not to my knowledge you don't think there's a case that requires a defense attorney to absolutely have to argue  you know again it was a strategic decision that he made given the facts of this case and the facts of this case and what's required once you get past i mean the state proving the first reality it's them what's required to get through to the second degree murder instructions in terms of the burdens and that may have been something he didn't want to go to the jury with i would point out it's interesting that in the defendant of course a motion for a new trial alleging ineffective assistance of counsel and there was no mention of his counsel's closing argument in that  murder is this really the first the first to art relating to the discovery violation to address the standard of review the state claims the disabused of discretion this police report the most relevant point case refuting that point is people versus alun in which there was a similar situation where two defendant's statements were issue one was disclosed the defendant and allen did it was disclosed that he was aware that a murder victim was being set up that was not even contested everybody knew that however there was a explicit confession that he was involved in the set up that was not disclosed and the court in the state made the exact same argument in alan and this court held that one does not satisfy the other a statement just because everyone knew about a possible motive in a possible set up doesn't mean that the state disclosed an explicit confession of being involved in to address your honor's question just as congress question about whether there are any cases specifically requiring an attorney to argue second degree murder no your honor there are intended the reason for that is because  typically a strategic decision depending on the facts of the case here the state harps on this was a strategic decision this was council's decision well it may have been we don't know it he could have forgotten your honor but even if it was a strategic decision it was absolutely showing self defense or your honor a trial attorney representing a person accused of first degree murder needs to be able to judge what the evidence is and in this case the evidence from his own clients who he put on the stand was that he hit a power in an armed person with a baseball bat three times and killed him this was not a self defense case it was unreasonable to look at those facts and say hey i'm going to ignore the only possible defense and just argue to the jury that the question here the central issue in this case is defense counsel stated is whether my client was justified that's absurd he wasn't justified but he may have believed he was justified and he may have been provoked well the jury prejudice goes fine if this was a close case we don't need proof that the jury would have would have accepted it but it is relevant your honour's that the only crime williams was accused of that he totally denied was concealment of a homicide and the jury did quick on that point so there is evidence in the record that the jury believed williams over david reid and at least some portions of the testimony the problem here is that williams testimony was just was that he committed second degree murder in essence not that he was justified   decision would be to say that given the facts of this case this this court looks at it makes a factual inquiry and it was unreasonable in this case to abandon and abandoned the lesser included offense instruction here and refused to