post conviction but for relief from judgment under section two fish fourteen one of the code of civil procedure applied in a criminal case white was convicted in two thousand and eleven in the trial in october of two offenses both rising on the same occasion of the first made the livery of a controlled substance the second being a possession of controlled substance known very simply fish or aleve that the livery alleges thing a handover of heroin to a confidential source and form and used by the government it was what you would call by bus scenario where she's busted for something that they that's ms lindorff or recall from the record and then later the same day the government agents the local drug  enforcement agents will flip her as they say and use her to make a buy right is met in front of his house by a white pickup truck whited color  white comes to the truck white goes away from the truck truck goes back to the drop off point where she meets back up with the agents who placed her in the position to make the buy both boy and that and white are if you will taken down it's different locations and different vehicles later on as we get later into the afternoon it's an early afternoon that why is this background so important well i think what you find when you look at these cases every case of this nature were it's a collateral attack any judgment in a criminal case after a trial and i think for that matter if you're a civil case tried what you have is you've got to measure if there is this new thing this thing that was unavailable the trial time what input it's going and then i think was an will deliver a controlled substance and that's the place where from a legal standpoint i have to acknowledge that our position the petitioners position the criminal trial defendants position is in some ways the weakest because of power in the u s supreme court and the impact it then had on inconsistent verdict cases in illinois while now i i reminded the court of the essential background of the physical event and the takedown because what we have is the case in which there's a heroin delivery of some kind perhaps but lindorff or winds up what the trial testimony was given a cursory search by all male officers there were no female officers on the detail let's acknowledge that in shoemaker can the case agents testimony she's allowed to go into her room in her home without any officers present and change into her work uniform least her former work she had stolen from our employer forty dollars from denny's got fired still had the uniform in the rules if you will was that she was to meet at work and that's actually where boyd knight picture up in the back area the parking lot at the denny's restaurant in bloomington ok what boy that gets to in his testimony later will be very important he's the witness who took the fifth to trial he's the with us who would be fair to say white and his counsel what he would testify to because white knows his version of the events but this the witness who becomes unavailable if you will at his trial can't use but the three counts get back to these four oils which contain heroin when white is taken down he's got a couple things on it he's got some cash that isn't the same as the buying money from them but he does indeed have some of the blame getting bills to check out there's no question of that on the evidence now right story which is in new york for proof if you have a natural hearing on the two fourteen or one in there or girder explains how we got there but as we one is able to say that count too because of cases like colin that talk specifically about you can't that roger cool thing as well as the legal  it's cited specifically in the brief it's quoted where he says that the stuff on white is the same stuff this is no coincidence so i pose the question if i may well if a site is the same stuff isn't that saying it's terrible i don't think the point he was making was heroin he's drawing a connection between what lindorff or shows up with and again we're talking about for oil is of heroin it's a pretty generic thing  these don't listen to trial evidence there's no distinctive markings none appear on the exhibits so what it appeared the prosecutor was saying to the jury is this is the same batch of material there for this delivery to her this one must be the same stuff this is where i suggest the rub if you will the inconsistency with finding him guilty of the delivery  don't think that was what the pressure cuter argued and i think the way the jury instructions are presented and those are included in the appendix of the brief because on this issue the jury instructions become important there is nothing to delineate but what you have is this you get what seems to be an attempt to boil the lines or carelessness in making clear your allegation and your proof and when those things merge in that fish i i think you get into this issue where that gets problematic there's no delineation in the instructions for the jury as to which they're talking about so i suppose in a way that's less tough argument but then the argument seems to fall back on that same stuff in a spec now again as is your honor suggested would it be a rational inference that injury could it with separate these two things i think that that might be a fair assertion but let me throw this out it's still the same stuff and if he had possessed it within ten through the liver it how do we how do we separate those things so i guess that's one that it is i said particularly given pall and the illinois adoption of it you know we have this two sets of cases with inconsistent verdicts we have the ones where it's t inconsistent kilties typically a mental state issue in the homicide cases that's where we see most of then we have the other flavor which is what we have here which is the not guilty of the included  suppose and i throw this out just in candor to the court that on the inconsistent verdicts point if one was careful about it and it was really thought of in terms of that included offense we would have seen a different twenty six or one concluding instruction then was given we also would have seen different sets of verdict forms would we have the three verdict version where guilty of the greater guilty of the included and not guilty so i suppose if it had been done with the degree of care that we might expect from the experience trial judge that with the degree of care we'd expect from the parties if they sought to the linear way it would have been there if defense counsel didn't wake up to it his failure well will lead leaves us into two fourteen zero one is very different than we're believe assign an ineffective assistance issue so that's the point and that's that's the some of the argument regarding the inconsistent burdens and i think it might be fair to suggest this is just the simple as that yes if you can rationally delineate between the two given the way it was presented to the jury on the instructions and the arguments then i'd have to suggest i have to confess that i have a better argument and that's again if you can get there because this case falls into that  again i would suggest it with no disrespect to the court it's kind of an odd posture because there are so many areas where we take some really if you'll pardon me goofy things you do and say well they were following the instruction they fall off the sterner my point on the instructions isn't that they were not there that the set of three pairs but rather that there is no delineation in the instructions for example by including wording and this is a departure from the pattern but you have to adjust what trial is with the pattern instruction were flowing in the instruction to that which was found on mr white if that was what they're referring to in count two would have not have been the delineate in the instruction which one you're talking about we often see that delineating among counts in cases a classic example court probably gets too many of them dui cases drug cases too where you have multiple counts certainly the homicide cases are so many flavors but those come with with a different form of instruction so i guess this that's the response that i suggest and that's why i suggest the instructions are important as part of this mix the result would be if the court has a veil that this legal issue and again i would suggest that is a grey area if two of illinois adopted the powell theory because we're in that category of the not and the guilty as opposed to guilty but that would result in a a vacation of the delivery conviction then we get to the other issues they were late to providing a new trial that would be in the available remedy so what do we have and this is why i say in part i started with the the evidence one of the issues in the case and that the kuder made an enormous amount of traction an enormous amount of time both arguing and in terms of evidence was these purported texts and phone call to white lindorff or testifies about it and to a slightly different degree shoemaker gives a little different flavor as to what was in the text what was in the voice call of it it's pretty much the same stuff both of them say two things and we have people's exhibit six at the criminal trial that's the phone that fits it's literally in white's hand i guess when they grab him and go to cuff him when he's writing in this i think it was a blazer and with some other people when they say they stopped him they followed him away from the location in front of his house and the phone a se that's arrest the ever sees of it it's in police custody right up to trial time and ironically after all this is said about the phone nobody turns it on nobody publishes it to the jury to show these texts and the voice call from this snow number or they are i'm not going to suggest there's a recording of the voice call obviously not but we're all familiar enough i think it's common knowledge and there's there's testimony in the record in white's offered proof that the two fourteen zero one hearing in in may of two thousand and thirteen before judge cast again about oh yeah it would recognize this number skinny that was the nickname melinda her first boyfriend who was a friend of his and it would show we'd see in the recent calls the call received we'd see that we'd be able to see the test and testify specific lead to nothing to the late it remembered all  it was indeed it's something that either the prosecution certainly and that most assuredly defense counsel in going after it should have done it well you know it's easy to second guess i like to think i would have gone after it having spoken with mr white yes his lawyer and learned in retrospect but it's always tough to look over the shoulder and i know that but yes that would have been a little group one month on that's certainly a possibility i think we have to look at that in light of what that what white has maintained from day one as contained in the offer of proof remember the context in which white i believe shot himself in the foot i think we can all say not testifying he doesn't testify because he's going to get hit with three drug convictions the only three convictions the press secu proposes to use the only three that are in the proceeding decade there's no way impress s what he's terrified it's fear and he testifies that so in the end he doesn't take the stand right now is unavailable a trial because of i don't want to say i'm almost rushed because i don't think that's respectful to the trial but what happens in this free at trial and i think we all know what it's like when you're in a jury trial you're trying to keep things moving you're trying to be organized and stay ahead of it and what happens is what it takes a stand a trial he's pled guilty he's got a partial plea agreement because it really doesn't give him anything but he's pled guilty and a sense he keeps get in the way part of it was his fault because he slips out of custody anyone's of the on with the peoria county case but now he's in custody transcript goes out for about two two and a half pages and spiritual work and given the opportunity to ask the questions the counsel needs to ask and again that's a matter for another proceeding abbe asleep because it's not really part of the two fourteen no one except in the state's answer right the heck did he do it to trial why didn't he ask the questions then and i can't explain why counsel them do it that maybe that related to his own preparedness which the record shows maybe it relates to other factors inquiry and i'm not saying because i believe it's the right one and i say my time is expired i'll just finish this thought there corey been made even then maybe even him fish the way that i did it in may of two thousand packets were not really differentiated enough so that it's arguable that under the rule that basically you have to piss in order to them or something you had to possessed it at the first instance so their claim is that this could be considered like included offenses where possession of a controlled substance and possession with intent to deliver are included offenses of unlawful delivery of a controlled substance but he even if that were granted th to do here trying to say that the jury had a reasonable doubt of intent to deliver so therefore that makes it him unable to have been convicted of unlawfully delivering so for that reason this is not a case like passing essentially right in front of his nose so this early he's totally removed from the situation but he was arrested on this after this delivery happens the police arrest him later and pick him up on the basis of diligence the trial counsel for the defendant who could ask those questions when the child like gave him an opportunity at trial to ask those questions i said serious presence and then the judge could make the ruling on whether he should be allowed to invoke the privilege granted here this fence relies mostly on problems with the quote controlled nature of this by the controlled by the fact that to point out strike was not searched by police and out was the one who was transporting the control this man dork for the confidential source to location by there was some surveillance but it wasn't enough to like actually physically see the delivery so there's only  discovered it's actually at the bottom of page report my specs and thirty six there is so much emphasis in two fourteen zero one discussions in criminal cases particularly but also on the civil side where it's a taking a civil judgment this phrase newly discovered i have suggested in the brief and i suggest again that the trial court's understanding of that is too narrow here there's there's two ways to view boy that's testimony as newly discovered or available there is the unreachable it's rendered on reachable in this instance because counsel stands in exercising the fifth amendment privilege despite the experience of the trial judge but he did his role to the lawyers and defense counsel should have jumped all over it should have asked those questions i certainly agree with counsel on that i mentioned that before but wh testimony was rendered on reachable in this trial he could not get it boy that might as well have been on the move in the circumstance with the determination that he was protected by pro and the interesting thing is here's a guy who pleads guilty in june he's awaiting sentencing and for some reason the sentencing doesn't happen before the act over trial point that testifies that the two fourteen  one hearing and it wasn't so much the way terror of being terrorized by the pressure cuter or threats convey he didn't go that and we'll occasionally have a case where that suggests that he didn't see that here but he did say he was concerned couldn't get to him he's insulated by counsel they won't talk to him and what was all spun they get into the courtroom in the middle of a trial that counsels not prepared for as he stated a few days before that pretrial i think it was on the thursday prior to the tuesday trial start i'm not ready i need a continuance i have people to interview thanks to follow up ok that's the context in which what matt has rendered unavailable and syrian you know having seen it vs the play it in court and there's there's a different aspect of it and yet we have this combination of things when we look at the testimony at trial if you do start dating tho had she's under pressure from the cops a heroin addict she gets a considerable amount of consideration she has reason to make a case for them and then we have the if you will uncontrolled by so these are the things which together they had up to these facts which if known by the trial court at the time would have prevented the judgment unless the court has questions