ok justice smith is not able to be with us today but as always he is fully engage and will consider the arguments that are made here today before reissue an opinion or an order so the usual rules  answer any questions about any of the issues after dmitri's four year old brother was attacked and robbed at a walgreens parking lot the two boys have done their bikes and started writing home when hillside detective daniel pred whom he knew he started following them because as he stated at trial he just wanted to talk to dmitri about what possibly happened at walgreens although credit did not suspect the boys of any wrongdoing he put on a sirens and lights continuously shouted out the window to stop and chased them home where he jumped out of his car and grabbed dmitri by the hood of his sweatshirt pulling him off his bike this case is about the unauthorized use of coercive police force that exceeded the bounds of what was meant to be a consensual police citizen encounter rob detective credit had the right to approach dimitri and ask questions dimitri had the equal right to ignore the police and refused to answer those questions and go about his business his refusal to cooperate does not justify detention or seizure but here that is exactly what happened for exercising his right to ignore the officers questions and go about his business dimitri was chased down by the police grab sweatshirt and arrested and charged with resisting a peace officer in fact the state's theory in closing at trial was that dimitry was guilty because he broke the rule that whenever an officer is investigating a possible crime and tells you to stop you must comply with the officers demands even if the officer is acting in an unlawful manner but that's not the law because detective credits use of quest of tactics in the attempt to force to me treat into complying and his physical restrain dimitri was not authorized was not an authorized act under the resisting statute the state failed to prove that essential element of the crime likewise because dimitris acts of running pulling away and stop and failing to stop were consistent with his right in the context of a consensual police citizen the counter to ignore the police request and go on his way the state failed to prove the essential element that he committed acts of resistance for those reasons to me tree asked that this court it's important to remember that in this case the pretrial judge was a different judge than the trial judge and pretrial defense counsel made the argument that i'm making today that the the officer had no probable cause t have any reasonable suspicion to conduct a terry stop and after hearing the track the pretrial judge ruled that there was no probable cause to arrest dimitri and he watched the arrest and suppressed the evidence that was obtained the state proceeded on the additional two counts and at trial the trial judge conceded on the record that he had not read the transcript from the pretrial proceedings didn't know the basis for the pretrial judge's ruling on the motion to suppress but maybe opined that it was possibly based on some sort of beyond the scope terry stop situation  and when presented with the case on the on the subject that that consists of rather it states that you can't charge a person that a person is not committing this offense by  if it's an not a lawful but if it's not an arrest it's you ation the trial judge just said you denied the motion for directed verdict and said this is too ations different here never really addressing acts that in this case the state alleged constituted the crime and the charging instrument in this case did do that it stated that the authorized act that dimitri was charged with resisting was his arrests and also charged three specific common acts from of dimitry that the state alleged was resisting acts of resistance but the evidence at trial didn't pan out that way they did not prove that for exactly yes because there again there was obviously a credit a received a call that there was a fight at walgreens parking lot he didn't know if the fight was verbal or physical he went to go respond in the meantime if they were male or female if they were black or white if they were eighteen year old both fifty eight years old he sees them and he decides he wants to just ask them questions that's his trial testimony and he and a no point ever said he and he intended to arrest them he meant to arrest them and so because the state charged that the authorized act was arrest their evidence clearly did not support that essential and did not prove that essential element and for that reason we're saying that he wasn't proven guilty beyond a reasonable doubt and double jeopardy concerns of all i mean you're asking for no person on their right yes i'm asking for an ou suppose that if they wanted to recharge him he was found not guilty or he was charged yes they broke the there were no wasn't wasn't it wasn't a lesser included but he was acquitted of the  aggravated assault and the drug charge was dropped so i don't see how they could really proceed with three charging him in re convicting me you know they they presented their and the at the second issue relates to the jury instructions and ties into the closing argument instructions and the closing argument issue that has conditions must be reversed is also supported by the fact that the jury wasn't given adequate jury instructions that set forth a road map for them to reach a unanimous verdict based on culpable charge conduct again as we discussed he was charged with resisting arrest he was also charged with three acts of resistance yet the instructions given to the jury didn't say what the authorized act of the officer was that he was charged with resisting nor was it stated anywhere in the that the state must prove that he knowingly resisted the performance of an authorized act within his official capacity but again because the charging instrument had been specific the state had to prove specific acts that constituted the crime but because these instructions didn't apprise a jury of what was charged and didn't give them an opportunity to select from it a myriad of different conduct throughout the course of the encounter with the officer we can't be certain that the jury's refuse to answer questions which is not a crime so because we can't be certain that the jury's verdict was based on culpable conduct that's another reason for reversing to me trees conviction and don't just for a moment and talk about the in the video was of the parking lot he testified at trial that he was assaulted by five or six guys who took his backpack took his robberies bag and mutual ran out and kind of shoo them away and helped his brother out and he hopped on their bike and they started writing the defense theory was that they did not know that the officer was a police officer in that in the black unmarked s u v and that they were afraid that the people in the s u v were actually the guy finding that it was a relevant because the resistance charge was not related to the incident that happened at the walgreens and because dimitri wasn't charged with assault or battery connected to the walgreens incident but it was about it because as i point out my brief not only bolstered or it supported a finding of credibility of davy and testimony which was dimitri's defense it also supported the defense theory that possibly they thought that it was these these kids that had attacked davy in the parking lot but the jury wasn't given that so what the jury saw was a fourteen year old kid who's testifying for his first brother whom the state impeached and said well you love your brother don't you when you do anything for him they saw that they saw the state's evidence consisting of a detective's testimony but they didn't they were presented with  the the supporting relevant evidence that would've shown that there was another reason for david to testify the way he did it which was he was telling the truth and robin's video would support him for that reason may please the court my name is saracens and i mean this is the state's attorney for the people of the state of illinois the defendant in this case was proven guilty of resisting a peace officer beyond a reasonable doubt at this juncture of the proceedings viewing the evidence in the light most order to prove the now the people's evidence conclusively established each of these elements by showing that detective credo was on call within blocks of where the stabbing occurred at walgreen's he would he answered or radio dispatch which gave him a description of people  involved in the battery that's what he knew at the time that the people that were involved in the battery he then this is scription was two people fleeing on bicycles the defendant his brother were the only people that know gender no way no at that point no he knew two people fleeing on bicycles but he knew they were there are two pieces that you cite one of which they wrote if they were standing to a group of men with a gun and they went to investigate there were people who have been to match the description at that point there was the investigation of the crime and once they saw these individuals all they had was a general description of a peace officer as an official act can certainly investigate the commission of a crime at this point he did not know if they were the victims or the offenders but he certainly is a part of it official acts can investigate stop to ask questions and then was very very interesting  dimitris actions in this case in additional reasonable suspicion because with the victim of a crime turnaround sway or an officer say i'm not stopping go ahead hit me and then flee on a bicycle those are not consistent actions for someone who's just been the victim of a crime how did you how were you showing that detective also testified that because of prior encounters he had with the defendant he knew them before and when the defendant first told him he wasn't going to stop he actually leaned out of his head his window and said to me tree stop pull over dimitri pullover at which point he against for the officer and continued to flee from his attempts to stop him just to talk to him about the the battery so these actions combined with what he knows certainly gave him reasonable suspicion but it was also clearly was in his all his official capacity to physical act of resisting by fleeing from him and refusing to pull over his lawful order to halt so now he has committed a resisting if he's officer and to have to pray that was fully in his right to arrest him for the resisting a peace officer that is now occurring because at this point was put forth before the jury however the problem with that the consulate in its argument in the problem with that is that that was not an essential element authorised act was not essential element that had to be put in proven by the people if you look at the jury instructions for this case th as course it was investigation was and it didn't affect his defense in any way because his defense at trial was that he when it was this thing an act of a peace officer at all it wasn't that he was resisting a different act his position at trial to his brother was that there was the he had no evidence that the car contained a police officer that once they pulled him out he complied immediately so this is if there is any possible variance between the evidence presented at trial and then the complaint it didn't affect the defendant's defense at all and on your honest question about the pretrial judge's ruling on the motions the process that ruling has no significance to the evidence that was put forth the trial and that's because the trial judge has preached no ruling was limited to the legal issue of whether the candidates that was se probable cause to arrest him for the battery and to not touch on the investigative stop or any other of the test afraid of actions and the facts even that if you look at the what happened at the mediately after the ruling on the so the video really didn't go to any material issue that was before the jury that the material issues before the jury involved the investigation that detective pray to have undertaken in the encounter that happened three hours pretty important evidence on the credibility issue immaterial it's what it could it was a video to corroborate the testing the testimony came in that testimony was before the jury davey unable to testify fully to the events that happened at walgreens there is no need to corroborate his testimony with the video from the walgreen family member so it wouldn't be undermined by that because we never can we never contested that part of his testimony we had no because that we never argued that they weren't the victims that was never in any way contested by the people the part of the test even testimony that was c by the people with the part that contradicted different detective credo where the lights on where the sirens i did he call to you did he ask you to stop did your brother attempt to swing at him those of the material portions of his testimony that the people were trying to show that he was by it's about the people in at the time that he attempted to stop to be tree whether or not he was the victim or the offender he had been to walgreens been stalking anybody at walgreens so playing the video with just corroborate and not essential part of deviance testimony which is why it wasn't an abuse of discretion and  briefly to counsel argument that it would show the defendant seat of mind that's actually completely not the case that video does not show these offenders going into an s u v it shows the it shows the offender is leaving on foot so there was nothing about that video which would reinforce and they're chasing us well but that he was unnecessary for that there was nothing about that video that made that argument a trial defense council made that exact argument a trial date in testified that that's what they thought but the video wasn't essential for that so the video would not reinforce or support or corroborate that there is any way that the state should necessarily be in charge of what the fans wants prove or how they want and that's what it seems like you're trying to say here that they didn't need the video it was unnecessary but and they also argued that the defendant did think that the as he contained attacker at their attackers and not the police so all those arguments that would come forth in the video were properly before the jury so even if the co the united states supreme court is that the fourth amendment right to go about your way in a situation like this is equally that that the officers right to stop someone in question them is is just as equal as the person's right to refuse to answer the questions in this case is it's not a situation dimitri his brother were already on their bikes they were already riding their bikes home dr knew where they lived they didn't try to evade the police they didn't try to go down an alley they didn't big they went their way they continued the same direction that they were going home and so there's no reason why the officer couldn't  have just stop pursuing him and go to the home and knock on his door and that he wasn't investigating these individuals because they were suspected of a crime and in fact the testimony is undisputed detective credit of one point in the trial referred to them as suspects that the dispatch said that the suspects grabbed bicycles but another time he said that they were subjects but there was never any argument provided there was never any testimony from detect the detective that they were suspected in committing a crime in effect the dispatch said a fight again it didn't say a battery so the detective said all i wanted to do was ask him some questions about what happened in the walgreens parking  lot and if we allow officers to force people to stop and answer questions when they don't have grounds they have no reasonable suspicion or probable cause to require them to stop that would be giving the you know heads you you lose in a tails i win situation in the fourth amendment loses in that case and in regards to the state's argument that while the  while the encounter transpired probable cause arose again there's plenty of case law that says you cannot create probable cause for resisting arrest if there was no grounds to stop the person to begin with  and in terms of the video issue the state contends it wasn't prejudiced it was absolutely prejudicial the only the only instant the defense well was the brother's testimony and again as i stated the state try to dirty up the dirty of this testimony but tried to put it in a light that he was maybe a little biased towards his brother and this video would have been absolutely pivotal in the jury's terminations of his credibility which