please the court today i'd like to discuss issue one the lesser included jury instruction and issue three and his inability to present a complete defense i'm also happy to answer any questions on the other issues as well as by members trial there was and was looking forward to building a life with her he was trying to scare her was that the operative word here yes that was his testimony and that's exactly why this instruction used to be put in front of the jury because the jury was the had the role to determine what week to g testimony and how to and how to utilize that testimony and what conclusions the jury could draw from it not the court but you also have the evidence from the witnesses in the house who said that he walked past them saying he was going to go kill her and that's going to sound like you know trying to scare somebody dead that is correct that there was testimony on both sides of this which is why it was it was the province of the jury as the tr fact to determine what way to give this testimony and to determine whether there was whether him or was guilty of st degree murder or the lesser included of offense of involuntary manslaughter and what the trial court did when it refused to allow the instruction on the lesser included offense is it took that decision making away from the jury used and instead substituted its own credibility terminate determination its own wing of the evidence when it is clear regardless of what it was the point is that it was some evidence and the donald makes clear that it's not whether there needs to be definitive evidence or evidence that the jury certainly would have found guilty of the lesser included of evidence or even it doesn't even need to be credible evidence all of those are quiet is some evidence to support the instruction on the lesser included offense so that the jury is then able to make that determination for themselves train state trooper yes yes all of his gun tests shooting to scare people away and i think and i think that that's part of also what goes into why this is less you know this was a concern a consideration for the jury is that these these shots were also you know toward towards the up upper left part he could also have  the other witnesses said he testified that he said all killer thomas are competent evidence there he wasn't intending to kill but that's that that that's exactly the issue right is that the evidence doesn't need to be credible the evidence doesn't need to be perfect all that is needed is that there needs to be some evidence to support the instruction it what the issue here is not w old expression if you assume something you may get a yes i do you would be right correct but this is this is what we are the danger that we are getting into which is the danger that happened at the trial court as well is that we are putting our own conclusions and our own judgment calls on the testimony you know this is something that was left for the duration tiger argument of appeal with the conclusion with an assumption with something that has no basis in fact as is and isn't fair contradicted by the autopsy photographs where he was shooting above the head but that's the way of the evidence here on earth no use testimony was strictly  is offered when the council asked for this instruction right needs to happen is that the court can sink each in this credibility determination can do that and if you look at the court's words here that's what the court was doing the court committed error here because it  the jury made clear in its no that it was sent out that it was looking for a rd option that it was looking for something to better understand the differences between the degrees of st degree murder and the degree of st degree murder to look for an option between a conviction on  degree murder or an outright acquittal this indicates that they saw something in the case the jury saw some evidence to support this it wasn't also just scott putting on his testimony him or himself testified that he loved her that he wanted to build a life with her there is a there is evidence here too so there is evidence that meets the very very well standard of some or very slight evidence to support having this instruction and write these quotes when things these cases make clear jury heard this case was that this man was drunk he was mad at her getting a text message from somebody else that he thought she was involved with he walked through the house around her and said he was going to go kill them that was the testimony that's the evidence that would you want to bring up with this get assumption even though it came out in testimony doesn't mean that it's competent evidence or you can on the opposite we can also just speculation and conjecture but you can also look to his actions scott was the person who looked at his face who looked at who tell who it testified to how he what what mr hammer was doing and even after the shooting he was he so family believes that him or was shooting to scare and not actually shooting to kill her that he did not that he assumed that he put it in he father had shot into the door and then did not even go to her to render aid he did not even think that that was a possibility in his mind so here's a bad was the ultimate statement of remorse that's in my  testified that he could not recall the shooting itself affect the counsel attempted to explain by introducing scientific expert testimony that he could not recall because they event was never actually encoded in his memory the state's own actions highl the significance of this testimony as they capitalize on his exclusion both in closing and in their brief on appeal the exclusion of this testimony denied him or the ability to present a complete defense particularly where his testimony was critical to explain that he was not shooting to kill but was only shooting to scare voluntary intoxication so their defense i am not arguing that and i do not argue that in my brief and i agree that voluntary intoxication is not a defense the issue here is is his credibility this evidence  and all you have here from sky is gas speculation and conjecture thoroughly incompetent and i think it's a difficult argument for your evades the judge did something wrong by not giving them a str sorry i had moved on to issue three and i apologize because i did not make that clear but yes my my position on to a lesser included instruction is that given the state of the law given the courts have made clear that it is is it is the province of the jury to weigh the evidence to determine what weight to give that evidence and to analyze the credibility of the witnesses the trial court usurps the role of the jury when it took that out of when it took that question out of the jury's hands and instead substituted its own credibility determination and its own wing of the evidence which its own words made clear moving and  now moving on to issue three as i said this is this is an issue of credibility not an issue of voluntary intoxication the issue of the question of of blackout and his lack of memory spoke to his credibility he testified that he loved her he testified that he was wanted to build a life with tracy mays and when it came when he had the opportunity to explain the shooting itself he testified that he could not recall this hurdle this blank in his testimony was clearly sending the state found to be a significant a significant problem that made him look like an incredible witness so in order to bolster his credibility defense counsel attempted to introduce the scientific testimony of dr roane who could give an explanation for this for his lack of memory on this point which would make him more credible in the eyes of the jury and not as the state turns it look at his incredible selective memory so the inability to present this deprive him of his ability to present a complete defense if there are no further questions i would like to reserve the remainder of my time for   civically stated gap trial that he wanted to introduce evidence of intoxication to undermine his ability to perform the intent to kill and that's the ruling that this court as it is should be reviewing here today not th characterization of that they are here on appeal the law is clear voluntary intoxication is not a defense you have before you in the briefs the statutes in illinois and you can see that in illinois they explicitly excluded a defendant's ability to use his intoxication to negate his mental state what counsel is trying to do here below and in many other cases here in illinois is to ask the court to implicitly read it back in under the guise of the state did improvement guilty beyond a reasonable doubt here's the civically we're dealing with an expert that the court properly excluded and that this intoxication to undermine his ability to form the mental state this court should address it case had to avoid the problem that we're dealing with here today any attempt to use this intoxication to negate the evidence that he acted intentionally is nothing but a diminished capacity defense and illinois diminished capacity is not a defense that's recognized any suggestion that we're here using his inability to remember against him came from the fact that the court gave great liberties to defense counsel with the defendant's testimony i don't allow him to inject quite a bit of testimony about his intoxication into the trial even now the court exclude the expert and should have consistently kept out that testimony in this case where it was only being used to undermine the state's ability to prov defendants intent to kill and in that respect the state was responding to the defense theory that he somehow was not guilty because he could not remember the shooting and that he was just a lot of boyfriends so he was drinking then he got sick then he decided to go drink again he didn't decide to go home and decide to stop drinking he did decide to have something to eat to try and settle his stomach down he started drinking again they are sick again and he started drinking again so the choices that he was making on that night were voluntary choices correct me at points of time where he could said this but he didn't do them correct so at the trial he was trying to use there in tax occasion is a reason it's an excuse but i see it is like three separate times two separate times when you could have said you know  so it's exactly why the law changed in illinois and that is because these are voluntary acts you voluntarily drink yourself to this point even if you did it in one sitting not in three separate ones like you've described and that is why the legislature has specifically taken that out of the statute in all they are doing is requesting this court to implicitly read it back in the trial court rejected the expert testimony follow the law however as i stated the defendant took the stand and was given great liberties with that evidence but make no mistake about it the ruling on the expert was proper the evidence of intoxication is not admitted should not be admitted to undermine the defendant's ability to forming mental state this court should address the sublime case head on so that that is not something that people are relying on in the future slip by was a case where the state prevail and there was no opportunity for the state to challenge that ruling in that case the illinois legislature took away a defendant's ability to use this intoxication to undermine his ability to form a mental state that's what the defendant was trying to do here a trial that's the evidence that the court kept out and the claim here today that it was only to show that he had an inability to remember is not the claim that was below him quite honestly isn't a defense anyway and  y to remember is not the same as inability to perform a correct correct so it wasn't even a defense to begin with it would be relevant testimony i can't remember there are witnesses  he did the shooting correct there's there's no doubt about their witnesses who said that i'm going to kill her witness who says and the physical evidence in case where he shot into her body  good morning and your honors it means yes on behalf of the people i would like to start by addressing defendant argument that's the trial court treated given very lesser included instruction of involuntary manslaughter as we all know in order for the trial court to have done that there would have needed to be some evidence presented at trial that defendant acted recklessly and as it was alluded to before during opposing counsel's argument there was not a defendant reliance on scott coming on this testimony to support his argument that that was some competent evidence as just a slap and put it is just one persuasive scott's entire testimony well st of all if we start with said he said defense approached him from behind he said that all he was focused on was defendants face and defendant shoulder scott did not even know that defendant possessed a gun until after the rd shot was fired there is no way that he party this entire thing was based on conjecture it is not competent evidence and when the trial court said it was weighing the evidence it was reviewing the evidence and weighing was not fully used given the case law that we have but the trial court needs to review all of the evidence in order to determine whether there is some competent evidence that would warrant giving a lesser included instruction and here not only do we not have any  the court said there was not even slight evidence to support giving such an instruction what we have here is overwhelming evidence of defendant's intent to kill tracy we have witnesses who testified that defendant was angry shortly before he killed tracy we have two individuals who said that they heard defendant say he was going to kill that bitch right before he killed tracy we have scott who heard defendant say i'm done with this right before he killed tracy and more importantly we have the physical evidence that shows that defendant shot in his downward trajectory those bullets were recovered at least two of them were covered from center mass where defendant as a trained marksman intended to put them this was intentional it was deliberate and it was definitely not reckless and i don't know how it can be said that the trial court abused its discretion in not giving a lesser included instruction of involuntary manslaughter elevant because the only issue at trial was defendant's mental state defendant is putting a very narrow spin on it in order to examine defendants defendants mental state the state was entitle to put on competent evidence and that included the autopsy photographs to illustrate to the jury to help the jury understand the forensic pathologist testimony and to illustrate to the jury the trajectory of the bullets so that to the extent that defendant's entire theory a trial was that he recklessly shot to stare tracy the jerk the state was entitle to present to the jury these photographs that showed where the bullet  and to help illustrate the pathologist testimony that the bullets were recovered from a lower point than where the enter were the photographs so as to that point they were not gratuitously entered they were very much relevant were they prejudicial of course all evidence tends to be prejudicial where the overly prejudicial they were not they were not grisly they were neat the incisions that were shown were clean and these were very clinical photographs the state was allowed to use to present its evidence and to present its theory of the case there are no questions about that as far as the sentence we would rest on our brief or that you honour's there is nothing that the trial court did not consider that defendant is asking this court to consider today the trial court considered everything that was actually very lenient and in perceiving defendant suicide attempt as an act of remorse so were defendant got five years below the minimum we would ask you to affirm both the sentence and the judgment below on the questions thank you for the time just a couple sorry i just have a couple brief comments st of all with regards to issue three i want to make clear that both at trial and on appeal that this the issue of the evidence the expert testimony with on alcohol induced blackouts was argued at trial and was included in the motion for a new trial as well specifically with regards to the fact that this went to his inability to form the memory and the blackout itself as a question of his credibility not as a part of the voluntary voluntary intoxication defense that was also argued below however because that is not a defense in illinois on appeal i am only pursuing the issue with regards to that blackouts that his blackout was a real though there was a real scientific explanation for why he could not recall the shooting and right he testified just curious why it makes a difference whether he recalled it or not when there are witnesses that say the evidence shows that he shot her you haven't shot her and center man's witnesses said he was going to kill her he's a state trooper that's strange so the fact that here remember it well there are lots of things that people can't remember but they still did it the state may know that you're not denying that he did it you're just denying the you're just trying to tell us that you can't remember something that makes it ok no no that's i'm sorry that's not what i'm arguing i'm not arguing that the fact that he didn't remember makes it ok what i'm what the argument is is that it was spoke to his credibility and that and the state to answer the st part of your question the state made it an issue when including they used his inability to remember to directly attack his credibility to recklessly say look he's not credible you can't believe him because he's conveniently choosing to forget the shooting and that's why this was a necessary part of his defense and the inability to present that deprive him of his ability to present a complete defense because it spoke to his credibility which the state then made an issue of the state knew that this evidence was was inadmissible was withheld from the jury and then capitalized on it in their closing arguments specifically using this to argue against him versus credibility moving back to the st issue just very briefly i want to point out that as as pointed out the question is that there needed to be some evidence that brian him or acted recklessly and that i just want to make clear the difference between knowledge and recklessness recklessness is a conscious disregard of a substantial and unjustifiable risk here there was some evidence that him or disregard made a conscious disregard of a substantial and justifiable risk when he fired the gun in the direction of tracy mays the difference between st degree murder and involuntary manslaughter is that she was perceived by everything that was presented and make their own determinations of what it was and i think what we what we need to remember here is that we can't get away from the fact that it is that it is improper for the trial court to take that away from the evidence to support that the finding of recklessness on the part of the jury but the trial court instead said no i'm going to i'm going to weigh that against the other evidence and that weight fear is the area that right there right courts have made clear very recently made clear that it doesn't have to be credible evidence it doesn't have to be significant evidence you don't need to prove that a jury will definitively have found an individual guilty of the lesser included offense all that needs to be shown is that there is some very slight evidence and i think what's important here is that the jury's note shows that they were considering this they were thinking about it and did not have the information that defense counsel wanted to put in front of them finally another point that was new was this question of trajectory st of all i think it's important to note that the medical examiner specifically testified that she could not assign any specific trajectories so there's nothing that can be read from any alleged angle of the birds going in nd of all and pride and and going along with that is that we because of you know the the reason that you can't get the medical examiner the reason that that's difficult is because if tracy was in a slump position or which is what scott testified that she was slumped over sitting down looking at her phone that the brits went whent and ended up in a lower position doesn't actually show the angle that the gun was fired from it just shows basically but without getting into the weeds of all of this the important thing is that the medical examiner could not assign a trajectory without that there's no there's no inference to be drawn from where the bullets were found in the body where he was standing yes interestingly that she was sitting on the front stairs yes so if you were shooting over his head why weren't there bullets on the door well it's in the windows because it's good to the question here is it doesn't matter he could have fired the gun in any direction to move that recklessness standard he could have been fight he could have been pointing it at her intending to miss and making a conscious disregard of this substantial and unjustifiable vis that death would result that that he could cause death or great bodily injury to her so because the bull simply because the bullets were not found in the door found in the window doesn't mean that he was making a conscious disregard of this risk but again that did not did this this was a question for the jury to determine that the jury to say we were the bullets found was the testimony how did all of this come together and for the jury to make that term a determination because the because it is the jury that's the trier of fact of fact not the court finally with regards to issue to the question of the autopsy photos though the main argument there is that those the families were cumulative and unnecessary specifically where the medical examiner gave specific detailed testimony about the location of each of the shots and showing while it may seem well for professionals who work in the criminal justice system might be used to seeing a lifeless body on a slab that is not something that a layperson would view with  necessarily view with having a cold clinical thoughts running through their head someone who has never seen a dead body perhaps ten could easily have a very strong visceral reaction to seeing a dead body with holes in it and because of that they were overly prejudicial they were unnecessary given the medical examiner's testimony and therefore it was error for them to be shown to the you just used the words this room there's a lot of visceral things in this very very disturbing case and as usual i appreciate we appreciate the passion and commitment and both sides in all