it please the court and counsel i'm alan anderson the office of the state appellate defender and i represent mr adkins who was convicted of murder home invasion and residential burglary by a jury he waived his right to have his sentence determined by a jury and was sentenced to death by a trial judge who found as the aggravating factors that the murder was committed in the course of a home invasion and was committed in the course of a residential burglary both of the aggravating factors in this case are bad and that is what i'm going to explain in this argument first issue i'm going to discuss is issue number three dealing with the felony murder in the course of a home invasion that aggravating factor was improper because it was not proved without relying on the acts that cause death the acts that created the murder and because of that the aggravating factor did not perform its eighth amendment task of narrowing death eligibility now whether a conviction can stand one that shares elements with another offense is a completely different issue from what i'm going to discuss here whether or not the aggravating factor that relies upon the same acts violates the eighth amendment now the state has addressed whether the conviction is improper but their arguments don't address whether or not this aggravating factor narrowed eligibility whether or not it it complied with the eighth amendment the home invasion conviction in this case is proper but the felony murder aggravating factor based on that conviction did not perform its narrowing function the function that it needed to do was remove mr adkins from the class of all murderers and pla smaller class of murderers who are eligible for a death sentence and the reason the didn't do that was because of the way that state charges the offenses in this case the pertinent part of the murder charge in this case allege that the death was caused when mr adkins beat stabbed the deceit in the home invasion charge alleged that mr adkins entered and then remained after he knew someone was present and then intentionally caused injury because he beat and stabbed the discussing is the fact that the home invasion aggravating factor does not narrow the class of does not narrow mr i add can see eligibility to the home invasion conviction is proper the state won that argument and i'll concede that under the conviction can stand but the problem here is that the home invasion aggravating factor because it relies on the act of murder does not narrow the class of individual who is eligible for death the death penalty by committing the murder in johnson and unlike here think when our johnson the court did vacate the home invasion conviction but as you pointed out that's not going to happen here the home invasion conviction is fine however in johnson this court recognized that there could be an eighth amendment problem when the home invasion conviction cannot be supported without relying on the acts which caused the victim's death kate the issue was not resolved in letter johnson's case because this court determined that the bench sentencing the trial judge did not in fact rely upon the home invasion as a statutory aggravating factor in finding mr johnson eligible for the death penalty if the stated charge the home invasion based on the beating and had charged the murder based on the stabbing then i wouldn't be here as i mentioned it's because of the peculiar way the state charges the offenses in this case that the two offenses rely on the identical acts and that's the only reason i cited people versus crespo in my brief in the state is never contested that the murder and the home invasion rely upon the same physical acts that cause death they never contested that the injury element and home invasion was based on the same physical act they've never claimed that they tried to apportion the beating to the home invasion for example and the stabbing to the murder and they did not  in residential burglary be triggered offense or the conviction well there is up there is another there is a problem with the residential burglary aggravating factor and i was going to discuss that as soon as i w finished with this i don't believe that both aggravating factors are valid and it would be my position that the court cannot simply ignore this issue because the other aggravating factor is also bad and therefore there are no valid it doesn't narrow it when the same physical act causes death it is the murder it is the act of murder that creates the home invasion in this case when he entered the home there was no home invasion when he remained in the home there was no home invasion there was no home invasion until he murdered the deceit so it is in fact the motor that creates the home invasion in this case and it is the act of the motor that the state is trying to rely upon too narrow mr to take mr atkins out of the class of all murderers and into the class of the death eligible murders and that simply doesn't doesn't work there just isn't any narrowing another way to look at it and i'm about to get to the residential burglary issue but another way to look at it is that you look at the ag the felony murder aggravating statute and it says that the murdered individual was killed in the course of another felony well he wasn't she is macca been she was not killed in the course of a home invasion because it didn't it didn't exist until she was murdered if you look at say an armed robbery the guy what goes into the store with a gun to rob the place and he shoots somebody  is going on when the murder happens you look at the residential burglary in this case or in any other case mr adkins committed residential burglary as soon as he entered with the intent to commit a fest so that when he killed  that was definitely in the course of the of a residential burglary but but the contrast is that there was no home invasion here until he actually murdered the scene and therefore it is the murder that the state is using to create the home invasion and you're saying it because the week he's a man the matter was charged it's exactly because of the way the matter was charged in this case because they relied on the same physical acts for the injury element in the home invasion and as the cause of death and the murder had it been charged differently there would be no wish so and then you meant like i said i get i guess the is the murder creates the home invasion the murder creates the aggravating factor the murder itself their force trying to be used is the narrowing factor but all that means is that because mr adkins committed murder he's eligible for a death penalty and we know that an automatic death penalty is improper we know that the eighth amendment requires prohibits all murderers from being sentenced to death we know that you have to narrow the people who are eligible for a death sentence from all murderers and we know that the aggravating some factors in illinois serve that function and in this case because of the way the case was charged it did not now moving to justice fitzgerald's chief justice fitzgerald's question about the residential burglary my point is that that aggravating factor was improper because trial counsel conceded mr adkins guilty of residential burglary at trial and that served as a concession that he was eligible for a death sentence which constituted the ineffective assistance of counsel because it deprived mr adkins of his right to have his death eligibility determined by a trier of fact in people a long time ago again this court announced a rule that counsel cannot concede a client's guilt to a trial or a fact unless the record shows that the client has consented to have strategy this court stated that such a strategy is totally at odds with defendant's earlier plea of not guilty even when no theory of defense is available if the decision to stand trial has been made council must hold the prosecution to its heavy burden of proof beyond a reasonable doubt now as both i and the state of pointed out in our briefs they had every rule has been cut back quite a bit this court for example has allowed counsel to concede at trial guilt of some offenses for example if if doing as his credibility with the trier of fact and i recognised that this is a this was a valid set this was a valid trial strategy but what i'm asking this court to do is hold that counsel cannot concede guilt of the charge at trial if that operates as a concession that the defendant is eligible for a death sentence if it operates as a guilty plea to death eligibility which is what happened here now counsel in his opening statement said on july thirty first two thousand and three rodney adkins committed a burglary at the home of catherine mccabe and she this is a concession of guilt to residential burglary in the state is never argued otherwise and again this was a valid trial strategy but i'm asking this court to limit such a strategy where it amounts to a plea of guilty to death eligibility i'm sure that you recognise as a possibility that  these cases because the the reason i didn't rely on strickland is the state never argued that this was not a concession under hattery what it argued was that it was a permissible concession had the state argued that he didn't concede eligibility i would have argued under strickland but it's never been necessary to cite strickland in the past to this court when making a hattery argument i didn't cite these cases i could submit them a supplemental forty but both in people versus chandler in people versus shatner when this court rejected they had a argument it went on to consider the issue under strickland without either defendant ever actually having argued at least you it seems from the opinions that neither defendant in those cases argued that strickland made the strickland argument they relied on hattery it was rejected and this court decided it under strickland when it was true as when defense counsel in a very difficult case i think you would admit multiple confessions physical evidence  be left with no strategy at all it would it would appear that the fence ryle was that the defendant burglarized the victim's apartment left before she returned home and was murdered by someone else as he never did concede to the intentional murder no he did not concede the murder i agree so what is he left with if not with the trial strategy that puts him in the home based on all the evidence that he knew was coming well he always has a strategy is this court pointed out and in hattery of holding the state to its burden of proof and that would not have required him to concede that mr adkins was was eligible for a death sentence i mean there were alternatives in this case and what he did again again had he not had his concession on residential burglary not operated as a guilty plea to eligible and i would have no argument that he was ineffective at trial he was he was not in effect of a trial per se he was ineffective because at sentencing because of what he said at trial but what you're asking this court to do and i'm you know i can tell by your mannerisms that you didn't think that was a particularly great defense in this case either that he left before the murders were committed well not in the face of all the confessions you mention right but if we would if we would take because it would go further than this case if we were going to say that any concession to an aggravating factor that would subject the defendant to the death penalty is per se err basically in that particular case it would limit in all cases the defen the defense attorney from putting i'm any type of theory of the case if that theory good or bad if it was a better case for the theory that was presented here because that that would be an aggravating factor so we'd be with his hobson's choice of do i go with my trial strategy or is there is that in effect of assistance of counsel to go with this strategy because of the aggravating there's no doubt that this is doing what i'm asking would limit trial counsel's options but i think that given the fact that where the options are pleading a client guilty to the death penalty when that client did not want to plead guilty to the death penalty when that client in this case for example specifically asked to have the trial judge to determine whether he was eligible for the death penalty i think it's proper to limit the trial attorney strategic choice to plead your client guilty to eligibility when he has asked to have his eligibility late term or you're guilty is a term that you phrase you use here there was no formal w go there was nobody before the court and honestly and that's the biggest part of the problem here mr adkins was never told as far as we know as far as the record shows what the effect of this strategy wou that he would have no defense to eligibility that he in effect would be pleading guilty had he at least pled guilty the trial judge would have said mr adkins if you admit this residential burglary you're going to be eligible for the death penalty that is a big part of and as i said the record does not show that mr adkins consented to this in any way and in fact it shows that he did not because he asked to have the trial judge to determine whether or not he was eligible for a death sentence burglary to try and get his client exonerated of the charge of murder and home invasion if we put ourselves in his position if he's he's if he's convicted of murder and home invasion except for your argument on narrowing the circumstances in which the death penalty can be imposed would counsel not have to assume at that time that if you was convicted he was going to be eligible for the death penalty because of the home invasion well whether or not counsel thought he would be eligible for the home invasion i i don't think the point of the mean certainly it seems like a lost cause but the point is whether he's not committed to concede and that's independent of whether or not counsel thinks there's another home invasion issue this is still amounts to an unsanctioned impermissible hilti plea to eligibility i mean if you're asking me whether or not counsel would have prevailed it at the eligibility phase it seems very unlikely but that's no excuse i mean hattery the case was open and shut that that's not the issue the issue is whether or not counsel can defy in essence his client's wishes and plead him guilty to eligibility when he he does not wish to but he's only eligible if he's found guilty of right is definitely an ineffective assistance of counsel claim and it was a valid strategy at trial had it not conceded his death eligibility i think i'm not understand i just think i'm not getting your  eyes but so there's one other point i'd like to make concerning this issue in my original brief i said that because this error occurred at trial mr add can should be granted a new trial that to put it politely to myself was not well thought out he error occurred at trial but the effect of the error was at sentencing therefore the only relief that mr ad can should be granted from this issue would be a new sentencing hearing not a not a new trial and i apologize for that poorly considered request if there are no other questions that would conclude my argument thank you very much may please the court my name is john no lack i mean assistant state's attorney for cook county and i represent the people of the state of illinois in this case defendant rodney atkins was properly convicted of both first degree murder and home invasion and his counsel was effective faced with overwhelming in an airtight case conceded his guilt as to the residential burglary in this case the victim's head left her home went out for a drive a jog after taking a day off defendant  her home was in the middle of land sikander bedroom burglarizing the place he was in the living room when she returned he was admiring a laptop he was going to steal she came in he attacked he jumped on her went to the kitchen and grabbed a knife and came back stabbed her in the throat so viciously that he cut her carotid artery in half again this wasn't enough when he first returned with that knife even though she was paralyzed from the chest down from the waist down she still was  conscious enough to get a left hand up and there's a defensive wound on that hand she was aware what was happening at this point but even after he sliced her crowded artery in half he then viciously got out of back and saw him so viciously and so deep in the neck there was a  but continued to burglarize her place and then goes across the hall and burglarizes the neighbor's place where even has time to take a smoke or at least a cigarette with his d n a hear your honour's there was absolutely no question this defendant was properly convicted of both first degree murder and home invasion and there was no defense to his residential burglary case as for the first issue the defense raises here before this court there were separate acts year that both supported the conviction and the narrow way of this murder in the charges for both so it was based on a single setting of a fire so even here we have multiple beatings and multiple stabbings but there was a single like a setting a fire and this court held that it was probably convicted of both first degree murder and home invasion because home invasion required that additional act of entering the dwelling and several appellate court cases upheld the say in particular johnson there was a single shot fired this is johnson the single shot fired and the appellate court following this court's lead held that that single shot supported both the home invasion the first degree murder because the home invasion required the additional lack of entering the dwelling dwelling he didn't just murder this woman on the street he first did that additional act of entering and then murdered her when she returned to federalize on this decision this court decision and johnson but johnson as we know in our brief and quite significant was based on felony murder not intentional murder and as the u s supreme court has held an eben in order for a capital punishment to be to be the proper sentence it has to be based on the deliberate murder that was in the case in johnson and johnson it was based on felony murder so both the first both a felony murder charge and a home invasion charge of all said that he entered the dwelling committed the acts that committed the murder and killed her here home invasion charge includes that entering the dwelling but the first degree murder charge does not so in johnson the first of the mother charge said he entered the home but that's not here that's not true here that entering the home was a separate act which supports both the conviction and the narrow way in this case again it was narrowed because if the murder occurred inside the home and occurred after he entered the drawing and that was a separate act as for the effectiveness of counsel your honour's this defense counsel did not plead guilty to his death eligibility he fought vigorously as to whether this defendant committed the murder or committed a home invasion he did not concede every single point today and towards the death of the eligibility as defense counsel didn't hattery and hattery the trial counsel in that case stood up and told the jury my client committed this murder you are going to find him guilty i'm not asking you not to find him guilty of the murder you are going to find him guilty  proceeded to follow that so called strategy throughout the trial this court held that when you don't challenge any of the charges not a single charge against the defendant but that is presumed and a fact witness but that's not what happened here your honour's here the defense counsel conceded as to residential burglary but fraud vigorously as the first to be murder charge and the home invasion in this court's case in johnson this court specially held that had  we had to be narrow they construe or in this court explained why because there's a great danger out there to presume ineffectiveness just by conceding one of many charges here the lesser of the charges that it was charged with this court held that if it were to  accept an automatic ineffectiveness rule there'd be a danger that an unscrupulous defense attorney especially in a death penalty case like here would deliberately concede guilt as to one charge in order to lay the groundwork for a later reversal that's precisely the danger of allowing just one concession to one charge to result in an automatic ineffectiveness here defense counsel had no choice but to concede as to that residential burglary otherwise would have no credibility whatsoever with the trip with the jury it was an airtight case we have multiple confessions by the defendant occluding one that's a videotaped he talked about how he kicked the door down and with his heel at the top and toward the bottom and sure enough that matched up with the evidence for how he broke in the door he talked about how he when the bedroom first and ransacked the evidence at the scene showed that he did just that he talked about how he would in the living room and found a great laptop that he wanted to ste and they haven't showed that yes indeed he did steal back the evidence showed that he had in fact he had the proceeds from the victim's apartment he talked about how he also went to the neighbor's apartment and burglarized that we've got his a on a cigarette butt of a cigarette that he smoked in the victim's apartment or in the victim's neighbor's apartment and in the victim's apartment we've got his fingerprint on the water bottle that had been filled with coins from the neighbor's apartment that he brought into the victim's apart so we've got his fingerprint inside the victim's apartment and then after the crime we've got his girlfriend we recovered the gucci watch that he stole took from the victim's apartment she has that she has a pair of the victim's prescription sunglasses we have the pawn slips from him pawning items that some of the items he stole from the victim's apartment we've got the testimony and the laptop computer from the person to whom he sold the victim's laptop computer there is absolutely no question your honour's that this defendant committed not only just the first degree murder in the home invasion but certainly that residential burglary defense counsel's theory was everything shows that he was in there that he was burglarized the place his fingerprints are there the d n a is there  proceeds are there everything his only option for defense counsel he thought his only chance was to claim that despite these statements that he murdered the bake them it actually had left the apartment that time not a strong defense but a defense that he pursued vigorously and but in light of those statements there was absolutely nothing defense counsel could have done as to that residential burglary again he did not plead guilty to death eligibility in order for that to happen he would have had to concede both to the  qualifying crime of both residential burglary and home invasion and plead guilty to that it made guilty the first degree murder which is exactly what happened in history that's not what happened here on ars and this court defense counsel now asked this in light of all the facts that we discussed the multiple statements the physical evidence the proceeds everything shows that this defendant committed the residential burglary he committed the home invasion he committed the first degree murder and as far as the it was an appropriate strategy by counsel in order to maintain some type of credibility with the jury while big recently contesting those charges of first degree murder and home invasion that qualified him for the death penalty rebuttal i would like to address the state's contention concerning the home of the the residential burglary and issue for you do when you are up here on your initial argument at the end you made clear that you are not asking for trial but  conceding that the state posits that because counsel did not concede that mr adkins was guilty of murder he did not concede eligibility but we know that murder is in fact not an element eligibility it is not an issue at the eligibility hearing it is assumed if you look at the ip eyes or anything it is assumed that there is a murder conviction you cannot argue at the sentencing hearing that he did not commit the murder or you can even argue residual guilt that there is some doubt that he could commit the murder so by contesting the murder he did not preserve any issue at the eligibility hearing and that is the crux of this case that one sentence that coun said eliminated the eligibility hearing he did not preserve any issue that could keep mr adkins from being found eligible for death penalty and that that is the crucial issue here there was no adversarial testing of the aggravating factor and that was not sanctioned by mr adkins of what the prejudice prong of strickland would be very hard to meet your honor it as far as the  would be not in the sense that the outcome might have been different but in the deprivation of mr adkins right to have his eligibility determined by a tri or a fact which pretty much gets back to the head or anything but to me that's very prejudicial that he trial counsel has a eliminated mr ed can stated desire to not admit that he's eligible and to have that to at least have the state's case against him held to the burden of proof that would be my argument as prejudice under strickland and again that's very similar to hattery those are the only that was the main point the state raised that i  felt needed to be addressed i'd be glad to answer any other questions if any of the justices had any not thank you very much thank you cut case number one zero seven three  will be taken under advi