rob parker i'm from peoria this is an appeal from peoria on a first degree murder conviction specifically however the conviction of mr gordon shipped more the second is not exactly why we're here we're actually here on the pretrial ruling that occurred a motion in limine was filed by the state seeking to restrict expert testimony saying that it was within the common knowledge of the jury as the defendant's state of mind that was in response to focus must be on in fact we are speculating on what the testimony will be the stage in the proceedings will still be at pretrial so we had no actual evidence there was not actually even a proper with the two months preceding the trial preceding the the crime stuff when we look at the court's ruling restricting expert testimony we see that the evidence that he suspected  that i don't think we're going to be able to prove provocation so it's not relevant the best kind of what people argue they argue this is an issue of common knowledge so the straight from the argues the parties while also anticipating what might be so in aspect of the case so as a result the testimony of the experts was excluded entirely and implies to me our ability and to get into second degree charge and to prove deficient evidence to establish a defense prior to trial and in fact records without authority to question the propriety of an offense before we get to the trial and in that case the issue that we have raised on appeal and then algy that was also made in another state guilt that i cite and that one is that in essence we're conducting a summary judgment hearing and ruling which is only a civil standard and in fact i notions when we really must be given and given the defense the full rights and then any aspect of his case for the defense guild also states quote under illinois law the proceeding in which the and but to say that the evidence we have as contained in one expert report contains no evidence of provocation is therefore also requiring our experts to speak to both elements in order to even be able to qualify to testify but as we showed in our brief there's case law that says for example quote an expert or expert testimony is to help the jury understand an aspect of the evidence and that's in the home and case that we cite and if we just look at the evidence rule or a one evidence may be offered to make a fact more or less probable so we don't have to make our entire defense prob or even by beyond viability at the pre stage proceeding which we are offering this expert testimony we just have we're offering it for an aspect of the case so we believe that these experts  prior to the crime whose testimony was completely excluded and prior diagnoses we have adjustment disorder with reason depression generalized anxiety disorder and major depressive disorder along with the substance abuse imus's those substances a time of the crime being vice an ambien advantage and alcohol interacting collectively and then we have a serious issue here where he is alleging blackouts he does not remember much of the actual incident at the time the crime was committed so one of the triggers for blackout is that a is a real medical condition and there's a positive disconnect and there be a loss of control associated with a blackout what's the medical idea behind it so those are the issues that we would be seeking to look into we acknowledge that of the experts and after the crime review someone in our case six months or so of five months six months later is not going to be able to speed on the state of mind they cannot go so far as to say yes he was under a sudden passion we understand that but the case law cited defensively throughout the brief does appear to show they  violent i noticed the viability of language and i actually looked at black a lot of c the viability was determined and instead we get to a lot of heated definitions i think that we need to be able to assert in response to the prosecution something that trial without being cut off prior to trial in terms of other evidence we might also be calling to support the other aspects of that defense in other words viability will be determined also as in the pre trial stage in terms of feasibility if we if i don't think we can gauge just from dr chapman five page report whether in the cancellation of the evidence of this case we are and are not going to have elements of provocation maybe in that case we have to expand the motion eliminate hearing and call the effort to the stand which didn't even occur here but say that in this five page report there's no provocation therefore none of this applies and your defense isn't relevant that's for going the possibility of liability so i think that he entertained the idea of a viable defense means that we can articulate that it could be shown and if we look at how we get to that dream instruction at the end it would certainly be up to us to go through the trial and actually create that testimony in fact it's exempt from a case and if we don't well then we don't get the second degree manslaughter instruction that is earth and that would be a risk at trial as well of proof would simply be a prime it's of the evidence as far as that defense of the whole so even after a while let alone the viability state increase from proceedings we don't have to show that much just to get it into consideration the rest goes to the weight so we believe that time because of the way our efforts were struck and the array of testimony they could have provided even though it's going forward miss ability of evidence and therefore the discretion of the trial court it was of an abuse of discretion in this case because it does not lay what was even before the court his order that case permitted psychiatric testing regarding alcoholism depression borderline personality disorder and that the defendant was prone to impulse and violence and we but that too allowed to test conclusions by experts personality type explanations and how the defendant was think under those circumstances a depressive disorder with phrasings id well who says you do so we would actually in fact meet the doctors to establish that aspect of the case so we also cite elsewhere in our brief evidence on toxicology pharmacology it's experts have it severely and strong our believe that we see trial and present a defense because of these due process concerns we are here today asking this court to reverse the first degree murder conviction and light of our preservation of the jury was capable of using their common knowledge of observation that the defendant was depressed and overwhelmed by the circumstances and the service was more than capable of deciding if this killing was oh no your honor that was two separate arguments i'm sure i'm positive i wasn't clear on that bit of the the jury can figure out that this this gentleman was was angry and that he consumed these substances in your honor maybe not maybe they can figure that out but the people would submit that there is nothing in the records of doctors chapman or lab that explain or even allude to how the combination of his depressive symptoms and the way he was feeling both created reports solely for the purposes of this case for this testimony and that the people said that they would have mentioned in in these reports that these  as evidence or is there going to be testimony from this area well there might be testimony from the stand your honor but the fact is that the people would submit that it would be reasonable to conclude that that what the basis of their testimony is going to be contained in the record and the fact is that any effect of the combination of his feelings plus these these substances it's not mentioned in the report they're talking about but as i as i quote a doctor having earlier he's talking proposition that that trial just is not is that does not abuses discretion preventing expert testimony i'm matters within the common knowledge of the jury regardless of diagnosed mental condition like the defendant hulett suffer from roadways because in that case there was an argument over children and threats to take him away and that was provocation and a newbery here out there the combination of that court held that the combination of verbal abuse  in that case it wasn't just arguments over children frex taken away there was also a physical act against the the defendant's daughter that that weighed into the problem cation ar and argue anything with regard to that and say that it supports the trial court's ruling here but if we're talking about hewlett we're saying for example there was nothing in the reports maybe the common knowledge of the jury oh we got out of it mission from council so now we're starting a venture away by his own argument here to the fact that maybe book the offer what our experts were going to offer a trial wasn't and we intended to explore them extensively with the experts on the stand they were not entirely grounded or circus that compared to what our expectations are and we didn't intend to get into this extensively trial with a lot of  homes so it's frustrating here that we're simply finding from reports full then and now because we do understand that there's not a lot to go off of there and we just wanted the opportunity to develop that but there would in fact be testimony from the stand to answer my simple nickel of these questions on whether or not the experts might pass by there certainly would be testimony on all of these areas if it were allowed however  it does leave open one interesting door after or near the time of the crime in and two plus the that out a little bit it's state that experts may not testify to matters as such a state of mind and the exception it carves out is out when you're the time of the crime if you ever saw them then maybe they can we've never dealt with that it's unclear whether revealing with that now as i admitted in my reply brief i don't think th actually has the reach that gets you in this instance but it's it's an interesting point of note dr ladd did see the defendant on january twenty fifth and had an appointment scheduled the day of the crime which was a cap but he was seeing him throughout that period leading up to the crime he was under the doctor's care and the question is is this near the time of the crime fission for that matter explore state money perhaps on reman days is sufficient for near the time of the crime for him to get into that testimony and it's a unique opportunity that is not available in many cases that have the treating expert testify to the course of his treatment and what the defendant was doing and believing and thinking at that time but i think feel it in here for a moment is a stretch to say that it means we can't call experts to talk about depression because i i think i'm hearing that as an argument so if that's true if we're literally going to say do it stand for the present is common sense as the trials of the mark in that case well how do we get around actors ruling aside in our brief where all the plaintiffs are the people and the defendant in that criminal case allowed expert testimony on major depressive disorder and that was met with approval and instead we just say it's up to the court or the jury to weigh the credibility of that evidence how did we get around basically every other case traitor reigns earth's elder all of these we have expert testimony to some degree and in many cases personality disorder and birth borderline personality disorder many issues mental issues that ring similar if not identical to what we have here so it would seem the fact based would be stretched beyond its original meaning and appears to me that feel it was criticize situation and try to apply it to sudden passion and all these other flavors of criminal psychiatric testimony on disorders it's not going to stress to apply those instances it was it is it was this particular situation focusing exclusively on state of mind and if we start to strip in other cases and other aspects of proof for example in sudden passion pressure in that sense then we're going to make it go too far hearing because we are compelled to preserve that free trial if you for this court finally as a provocation and when how we got here the allusion to provocation it's just that we're talking about in a free trial situation where alluding to what the evidence might be we argue that we should not have been in a position to do that it put us in a very difficult position at that hearing which i remember poignantly to be pressed on whatever evidence provocation m present a trial because then i'm stuck trying to anticipate the defendant's own testimony and the facts and what he might recollect and how he might be pressed on these issues at a time by the way when he was also having lapses in memory so it was very difficult to speak on what he might be in a position to say or what the fourteen year old witness his daughter might be in a position to say or what the fact would develop with respect to these allegations swirling around adultery which is another aspect of that