and i would like to reserve just a couple minutes for the book may please the court i plan to focus today on the first two issues addressed in the briefs first this court should reduce mr gallagher's conviction from residential burglary to criminal trespass to a residence because the state failed to prove that he had an intent to commit theft twenty entered mr brooks his hotel room second he was denied a fair trial because the jury that the jurors themselves should have had the opportunity to where that he actually stole forty dollars from mr brooks there was no evidence of forced entry no prob the rituals were covered in two of the three people in the room remained asleep when he entered which supports his testimony that the door was ajar and he thought it was empty when he approached he never pet advance past the room's doorway and contrary to a statement in the state's brief mr burke's never saw mr gallagher building any of his property including as well it seventy five  brooks testified that he never saw him pass the doorway he said he saw him in the doorway next to he that's true both their testimony was consistent on that point mr geiger said when he got to the room he never advanced past the doorway he opened the door slightly it was ajar and at that point he saw bags and people and realized the room w occupied and started to back out that was consistent with what mr burke said which is that he saw mr gallagher backing out of the room facing forward which i think indicates that he hadn't gotten that far into the room because he was still backing backing out was more money left on the table and credit cards also mr brooks never reported the theft of forty dollars to the police and finally mr gallagher had forty four hundred dollars nearly forty four hundred dollars of his own money in his backpack bush testified that he reported to miss hampton but there's two interesting things about his testimony on that point first he said he waited an hour to report it to her and his his reason for waiting an hour was because he was talking to the police but he didn't report the theft to the police he also said that when he reported it to miss hampton he said he may have been missing forty dollars not that he definitely was missing forty dollars and that contradicts his earlier testimony which was that as soon as he got back from the elevator from pursuing mr gallagher he knew exactly forty dollars for missing because his girlfriend had already been counting it so i think he did report it to miss hampton but i think those two facts sort of discredit whether or not he was so  how well i think there's a there's a couple i have a couple responses to that first is when there's a question of credibility the illinois supreme court the u s supreme court have both recognized that in cases like this juries need an important third option of convicting a lesser included offense they didn't have that option there that's because when a jury is faced with when they think a defendant has committed some crime but they're unsure of whether or not they've committed the crime charged they're more likely to convict of that greater offense than to acquit on the whole there's a perfect example of that mr gallagher admitted on the stand that he had committed that the crime of trespass in so the jury's going to have a very difficult time acquitting a man who's admitted committing a crime in front of them but secondly that in a case like this where it does come down to the credibility of two witnesses there's a chance that other errors could tip the balance as against mr gallagher in this case there was error during the closing arguments and that in these these remarks during closing arguments specifically went to mr gallagher spread ability and mr brooks his credibility in particular the state kept out was able to keep out of evidence  direct evidence that mr gallagher was a painter they kept out the examples of his artwork from the record but then during closing arguments they implied that he had lied about being an artist that if he was an artist he'd have paint brushes in his backpack that night and that his artwork that those actual examples are relevant but at that point it's inappropriate for the for the state to then undermine that claim in closing arguments when he wasn't allowed to demist great definitively you know demonstrate to the jury proof that he was an artist reported a theft of forty dollars he would have included it in the police reports which makes sense because they were there investigating a i know with burglary and at that at the end of trial mr gallagher requested over forty three hundred dollars that was confiscated from him back and the state did not request that forty dollars of that be returned to mr brooks i don't think there's any evidence that mr brooks ever asked for the money to be returned to him that was allegedly into me i think that that goes to the credibility about his claim about forty dollars now that he necessarily lied but that over the course of two years since the trial occurred he had maybe convinced himsel f that forty dollars was missing because he didn't initially report it to the police and he didn't ask for it back and this is a man who was pretty vigilant in pursuing mr gallagher after this incident took place counsel indicated to the court months before trial that he was planning on a listen a lesser included offense instruction he didn't pursue the trial by requesting a lesser included offense instruction but he chose the wrong one he chose criminal trespass to real property r criminal trespass to a residence the state recognizes that criminal trespass to real property was not the correct offense they've also recognized that criminal trespass to a residence is a lesser included offense of residential bradley which is a proposition that this court has recognized a number of times  so he chose he had the strategy but he failed to execute the strategy because he made a legal error and requested the wrong instruction finally i think the prejudice is clear because the jury saw the evidence as close they said they were deadlocked and the only issue they had to decide was the intent issue date you know this is a pretty simple trial there are only four witnesses there's no physical there's not a lot of physical evidence no expert testimony that they had to be sequestered overnight before they could reach a verdict  and finally it's prejudice that they had to be sequestered while in this case mr gallagher had conceded the first two elements of residential burglary he said that he entered the residence and that it was an authorized the only issue for the jury to decide was whether or not he had an intent to commit theft when he entered the room so when the jury reports that they're deadlocked when the jury requests a transcript of mr brooks this testimony and when they eventually have to be sequestered because they can't come to a decision i think indicates that they're struggling with this and that if they had the option to convict of criminal trespass to a residence that is a likely compromise position that they would have that they would have chosen and i think that demonstrates the prejudice it additionally criminal trespass to a residence is a class a misdemeanor residential burglary is a class one felony he couldn't gotten a four year prison sentence had he been convicted of that lesser offense yes well you know i think it's more proper to hold it after all the evidence has been admitted because then it's clear what instructions would be appropriate here they held it gallagher testified and i think the crucial thing for the ineffective assistance argument is that after his request was denied to get a lesser included instruction the defense counsel still put mr gallagher on the stand and mr gallagher knowing that mr gallagher was going to concede that the first two elements of residential burglary were proven that he had entered the room unauthorized this means that he didn't ever abandon his strategy of going for a lesser included offense because he had as has his client go up there and give testimony that supported it he wasn't going for an all or nothing nothing once yes he offered i believe it's i p i sixteen eleven sixteen eleven a m sixteen twelve which are for criminal trespass to real property and there's two problems with those instructions one that they specifically applied to clear there's a distinction between the reason trespasses of residences and of not residences and you know residents of are held more sacrosanct that residential burglary says she corresponds to the criminal trespass to a resident statue and th e instructions just don't fit with the evidence or with the way the crime was trudged here yet in conclusion if there's not any further questions i'd just like to reiterate that the relief  asking for is that we're not asking for a complete reversal of mr gallagher's conviction resting for reduction of his offense from residential burglary to criminal trespass to a residence and if the courts not the trial of his attorney kept insisting that over maybe two hours later he was detained in a security room for over an hour and never replastered going to the bathroom well i think that is a criminal trespass for him to enter the hotel room without authority irritant has his argument and so that's what we're asking that the charge to be reduced to his argument throughout trial was that he didn't have the intent to commit theft and that's why it was necessary to have that lesser included instruction there in terms of the evidence about him not going to the bathroom he did say he went into the what i want to make clear is defense counsel didn't argue that this wasn't a residence there was some indication in the state's brief that his position was that the hotel room wouldn't count as a residence if it was empty but that's not the case that's what the defendants and people the more argued and th court rejected that proposition it's a residence whether or not anybody is inside and it's certainly a residence no matter whether the person trespassing thinks it's a residence or think someone's inside if that's all reserve the rest for the court counsel it like to address the jury and scream i'm sorry christine cook assistant state's attorney i'd like to address the instruction issue first  recognize the valid strategy that was in place in this trial what he wants this court to do is to retry this case using a different strategy thereby establishing counsel's incompetence in vain number two this is what defense counsel dead they attacked this residential burglary under kind of unusual circumstances because it was a hotel room under two veins before the defendant testified defense counsel specifically and creatively attempted to take the sting out of the residential burglary in front of the jury by making this a trust test thailand case certainly the jury isn't going to be is offended by the notion that  trespassing on somebodies land or somebodies home it didn't work it wasn't viable but they tried and they were creative about it as justice cunningham noted defense counsel said it was implied consent would take a walk in the door handle so we can get into the land issue for the lesser included offense and it was properly rejected but a creative notion and then they attacked the intent to steal another front by presenting the defendant's testimony the defendant's testimony understand that this was probably a chemical tried once the sky hit the stand once he hits the stand he makes an enormous concession oh i walk into the room and i realize there's bad news there and that there was people here and i realize that i committed a telegram to state and i just see that they get out of there that's the factual issue that the jury was able to excuse if they believed there was a credibility issue the jury of course didn't believe him this into land versus residence it didn't work out with me because he says in his opening statements with all due respect your honor he says in opening statements this is a trust pass but that's not before you know the question th the question isn't whether or not defense counsel failed in this attempt or took a shot in watts the question is did he understand the law regarding trust question real property and trust test to residence and was his decision all of the hour minutes here and that they chose once those instructions on the land were rejected before he testified ok those rejected before he testified so there are times to get out of the presidential reign are has failed back out to the defendant i went in there with just one to go to the bathroom this was a terrible mistake and now the jury is going to decide are we going to really hang sky or residential burglary when we just like accidentally when they go to a back to the bathroom that's a completely quell this is a complete strategic move this to walk or does not support the notion that these defense attorneys were incompetent and had no clue what they were doing they were attacking the an option it was called not guilty submitting this instruction the part of my question was they do not want to find him not guilty because they believe he is guilty of something so it's all or nothing and that the whole they were idiots and assume it was the wrong instruction but it's now with this record shows they wanted to submit to the jury and this guy was trespassing but that's not a residential burglary and that's exactly the strategy that they placed before their jury every defense is going to be a gamble any appellate attorney can get up and say well you guys screw that up you should have done this i we thing is going to be like that in hindsight the issue before this good in this case shows that this man saves his mindset on the twentieth floor of a private hotel room because he's in dire need to google mail from the facts of this case show that he was in the bar in the lobby where he had access to a bathroom that he went through the lobby and then also had access to a bathroom and wound up looking for another bar and somehow winds up on the twentieth floor of a hotel where he is not a gas and how i don't know he breaks into this room but somehow he gains access to this room he's nap there to go to the bathroom he's not in the bathroom if you were in a room you thought were vacant the bathroom is the first thing in every hotel room that's off the door you flip on a light say oh my god  i've made it's terrible mistake does he do that of course he doesn't do that he flees and changes his clothes and all purses appearance in his attempt not to get away from an embarrassing situation but because he committed a residential burglary and he didn't want to get quiet i also like to briefly address the notions that the prosecutors engaged in any type of misconduct in this case by barring the defendant's drawings the prosecutor didn't bar the trial judge's ruling in the pretty people's favor the defendant testified at great length that he was an artist specializing in southern folk art he was on display in new orleans an online gallery seen diego miami and washington and that he was in chicago on that day to market his wares to sell but the backpack he was holding didn't hold anything that would support the notion that he was acting like an artist council misses the point of the prosecutor argument when he was in that hotel room he wasn't acting as an artist he was acting as a thief who walks around the city of chicago rather selling their wares with clothes in disguise that's he should do something like that that was an evidence of  and prosecutor did i don't think said the skies those are my words but absolutely who walks out of a hotel room where you don't belong at ten thirty making change of clothes there's only one reason for doing that the claim that he when he was up on the twenty four taking money out to mr hughes as well that he was acting as if that was the context of that argument it was absolutely appropriate the notion that defense counsels in this case somehow were set on their hands or  will the jury is justified in returning a verdict only on the greater offense that lesser offense shall not be given the defendant cannot establish prejudice because a jury didn't turn a verdict based on the intensity to steal on a residential burglary so any just like to make maybe three short points it doesn't matter if the defendant was a goof or if defense counsel was a moron for the matter the fact is that defense counsel made a legal error that prejudiced his client this wasn't a strategic choice not to pursue the instructions on criminal trespass to a residence as i think may have been brought out counsel recognizing his motion for a new trial that he requested those instructions and in his motion for a new trial he says the court should have given the instructions i requested on real property or should have given the instructions on trespass to a residence it wasn't a strategic choice if the one got rejected he fourteen seventeen seventeen eighteen eighteen he had that option at trial just as he did after trial but after a trial you recognize that he had made that error what's in it another thing i want to address is in the o the matter of defense counsel's opening statement it made clear that defense counsel knew what mr gallagher was going to testify to pages if thirteen and fourteen in the record he refers to t g following women in an elevator up to the twentieth floor he refers to it when i say t d m a mr gallagher he refers to mr gallagher needing to use the bathroom he refers to mr gallagher and seeing the door joy or and then backing out when he notices people in there so it was clear he was familiar with here i don't think there's any support for that proposition at all as i said defense counsel summarizes what mr gallagher is testimony is going to be during his opening statement and in the reference to trespass i think makes clear that he was that that was option down the road there was a hearing for months i believe before a trial where defense counsel indicated that he was going to pursue a lesser included instruction and most importantly this wasn't some sort of play or something he did include he did request a lesser included instruction and so by doing that he did he was willing to concede the defendant committed a crime no matter if it was the correct instruction or not offering any lesser included instruction is a concession that a crime was committed in some regard finally just to clarify about this to stylize issue the testimony was that he had a believe a strike button up shirt on and a baseball cap when he entered the room he takes off the cap he takes off the button up shirt and he has a t shirt underneath and that's how he's caught mr brooks testified that he was wearing sunglasses after the incident twenty when he's down a little in the lobby again but mr ms hampton the security guard actually testified that she that i contact with mr gallagher and that she found sunglasses in his bag i believe and i think officer chorale also testified that the sunglasses were in his bag so basically what he did is he took off his button up shirt and he took off his hat and as he explained he was embarrassed after walking into somebody else's hotel room he was worried about getting caught for walking into somebody else's hotel room there's a case people he says now ski illinois supreme court case where someone is caught in the middle of the night in somebody else's apartment and then flees and i think resist s resists arrest and what the court said is being caught in the in the middle of the night in someone else's residence is reason enough to flee it's justification enough for food to flee it doesn't specifically go towards him having an intent to commit theft that's the real issue here that was the issue that defense counsel tried to litigate throughout trial but defense counsel requested the wrong instruction and because of this the jury didn't have that option so in