listen to the audio and he may  excessive force and the second theory was that at least some of his actions were involuntary either the result of simply be awoken roughly by police or by the facts of the tasers that were used draco and to the jury was not completely improperly instructed as to mr draco's testimony it's clear from the record that there was evidence that entitle mr miners to argue he limited mr davis testimony he did not allow mr draper to test by that in his opinion the police were acting wrongly truck words so that any opinion that the police were were doing something wrong doesn't constitute defense that's police literally beat this person to apply the taser twenty four times but even in a coma for three weeks there were two witnesses that testified for the defense that said that when they entered the house they saw police kicking and punching the fan while he was on stomach on floor all this evidence is evidence that the jury could have fully we're not arguing that the evidence was insufficient convict him beyond reasonable doubt we're arguing that there was evidence that justified the instructions in this case another reason the rule  give the response first and then if there's some clarification afterwards you can provide then i would answer yes ok now what is the clarification you want to it's our position that what happened in this case went beyond that point after the found and in this case resisted the police went too far we don't believe that the law says that simply because you resist you cannot resist i excessive force respond to excessive for the other reason why we believe that charles greatest opinions were relevant is because the prosecutor opened the door to some of those indians by asking police officers about their training in qualifications once he did that he pla into evidence or into question for the jury whether they were properly train well they probably responded in this particular situation and in that respect the testimony of charles draco should have been allowed to minders actions were involuntary could have been because he had just been woke up from sleep or from the effects of pays this is where mr drew go to testify to the only reason why the trial court gave for not allowing this testimony was that it was a medical issue and we know that's not that's not the testing on the test is whether or not mr draper have specialized knowledge not commonly known to lay persons that were aided the jury in determining whether or not these whether or not the actions of the defendant or involuntary the second area where we believe that the defense was limited was the fact that the jury was not properly instructed in several respects initially only slight evidence of the defense theories necessary to require instruction and even if the evidence is inconsistent work out of credibility the jury still should be instructed if it's one of the fence there is truck counsel offered an instruction on in perhaps a rough manner and it's possible that his actions were still while he was sleeping we have evidence that he was tasered twenty four times it's possible that his actions were involuntary due to the electrical current that was being passed through his for these reasons he should have received instruction on involuntary actions that his actions were not in addition the electrical current passing or is fired to do so that when kids who struggle that he was still sleep there was evidence that he was sleeping and the police woke him up now the police of course on what happened in there but the jury could have just term that these police officers had a motive to minimize their liability in this case it's clear that these police officers could have been civilly liable or subject to this charge what they did was excessive if they did not follow proper police procedures so the jury could have taken that into account that's certainly a motive that they could have taken into account in determining whether to leave the police officers it's possible the defendant being still sleep kept the officer the defendant should have gotten an instruction it's possible that because he was being tasered his actions were involuntary whether striking the officer think it's common i don't think common sense has to be left at the door of your sleep your actions are involuntary so if he was asleep when he kicked the officer it was involuntary act according to the evidence of what point could be picked the officer well the evidence as the police testified to was that he was shook awake one officer testified that he opened his eyes and then the fact that part of the instructions given are the number to instruction number two was kind of an overview of this principle that was insufficient in our position is that you should have all instructed to the jury when he decided after first refusing both instructions to give only one instruction that was incorrect if you should have given both instructions last instructional issue involves the charge of disarming a police officer and as we know in this case it was a tense summer a police officer but that offense is separately defined in the disarming police officer on top of my head i can't give you the exact language appears they were tempted to preserve your office or they put the prosecutor did modify the instruction to indicate that an attempt there was an attempt to design the jury could have thought that cuffed him on the ground during the struggle defending also attempted to take officers were gone and smith's guns out of their holsters both of those people testified to that fact and both the other officers testif corroborating those observations officers reasonably feared for their lives here when defendant was attempting to disarm two officers and the officers admitted to the tasing defendant multiple times  the logs at least say that the tasers went off twenty four times and the records are clear on whether all of those were applied to defendant or not but the laws at least say that tasers amounted to twenty four times of course these are all in response to finance violent resistance throughout the whole encounter as well as defending basically saying that the cases had no effect on taunting the officer saying do it again things like that after the tape then comes the sexpert drago trego the reviews materials amount to the officer basically conjecture and speculation there is no way evidence in the record would now to limit the opinions of the limited there's no way the evidence in the record come up with that without injection speculation it's well settled trial testimony police trial festivities were consistent of the defendant being the initial aggressor is it would take a tremendous leap of logic common sense to argue that different instructions he took a pattern instruction the state's position would be that that would probably leave him for him to do because as you stated and as i cited in possibly the wrong section of my own people names first district case self destruct a self defense instruction should only be giving in the resisting arrest case when a different resists arrest after the officers resort to using excessive force of course here the only the only solution is that the there's simply nothing in the record his court this deployed draco could not have interviewed defendant to get his side of the story other there's no evidence in the record that the officers believe  inactive voluntarily again nothing in the record support that opinion of the officer grade made he's not a medical or scientific expert in his twenty six i guess all of them written conclusions while there was  hypothetical situations exactly like situations a factual situation in the present case of course this this would go to the harmless error argument dr bill was allowed to testify he testified to the use of force continuum and testified like i said to exact hypothetical situations exactly to the present case and stated that in those cases the officers similar use of force would be justified the jury heard this they heard during those opinion the defendant was taste to many times i think your ego said that the maximum amount of times for a person be tasteless five i think the jury heard all the jury found the four officers that the scenes testimonies which are consistent with each other more credible than during those testimony which was based almost purely on conjecture and speculation so even if it was  assessed in here is harmless for the jury instruction argument of the voluntary act instruction defendant argues that should have been given for two different reasons one when it was still asleep that's about the incident officer said five different early responded saying leave me alone i'm trying to sleep first time then the officers told me to wake up again check the shoulder identify themselves as police forces this indicates that deliberate act on defenders are not something that someone would do if they were just flinching or asleep or startle and again the evidence shows the defendant didn't wasn't startled by the shaking of the shoulder of the police testify persistently definit came from the action when they identify themselves as police and of course looking at officer going on the evidence only suggest to support this rendering him and it will control his muscle argument draco attempted to testify in that in that arena but the trial court properly limited his testimony as he had no medical or scientific expertise and even in his written opinion there is no medical or scientific basis for forming the opinion that somehow the taste would allow them to keep punching and kicking in the same manner that he was before being paves the attempt definition this was forfeited defendant didn't ask for the definition of attempt and didn't raise this issue in this post wrote motion also he was a general non technical language the definition of a temple is not an alternative definition of the template was the general understanding of the word people versus that words i  term robbery provided the jury with the definition it needed to hear the word attempted the same deal in the disarming of these officers struction it was general non technical understanding of the word there fifth district recent case how the overwhelming evidence factors the determination whether failure to instruct the jury on the definition of attempt is reversible error there the court held that there was overwhelming evidence of the require substantial  i think there was one more instruction the instructions two and three like i stated counsel sort of gave the impression to the trial court that it was either or on the last three was one that counsel drafted him self destruction two was a tattered jury instruction counsel even said explain to the trial court instruction three was another way of saying the same thing as instruction k thank you thank you that the instruction was given does indicate that the excessive force prior to friends used with the instruction that was not yet the one we believe was the instruction that would have told the jury that if it was justified in the use of force doesn't say anything about it having prior to other than waking up through weeks later from home but we do have other evidence of what happened in that room the jury did not have to believe anything the police officer said they couldn't believe the testimony of james and albert mr three stops to his head based on that it so the jury could have found that the police officers in this case were using excessive force and it's our position that they don't have the jury didn't have to believe what these officers said