and convicted with the offense of possession of a controlled substance with intent to to live before trial this defendant moved to have his three prior convictions for the same offense excluded the trial court however delayed its ruling on his motion in l after he testified at trial the evidence showed that the chicago police set up a surveillance in an area known for having our contacts traffic at the area of the intersection of well washington kilborne on the west side of chicago the officer set up surveillance around eleven pm on february the first of two thousand and five and which time he saw defendant standing by him self in the northwest corner of the intersection defendant was then seen in the next thirty minutes conducting object and handed it to the pedestrian after the third transaction the chicago surveillance officer called in other officers on his team were around the corner they approached defendant went up to the fence post at the direction of the surveillance officer and went to the fence post that he was seen reaching into and inside the fence post they found a bag with three small tin foil packets of heroin in that bag and the contents were later inventory tested and admitted at trial as people's exhibit number walk the officers then place defendant under arrest and search incident to arrest review of the defendant had three five dollar bills and three one dollar bills in his pocket all crumpled up  actually testified that they rode the bus together on the day that breyer testified testified the defendant in fact on the day this resident did not live in chicago who lived in detroit and came to chicago visiting he had one piece of luggage with them or another  defendant one ten dollar bill and two one dollar bills before he went to prayer testified that he and the other friend then left and did not see to find it again that night after eleven fifteen pm defendant then testified that he went over after getting out of the car he went over to the hotel in the southwest side of the intersection and attempted to rent a room for or out from eleven fifteen pm to three fifteen am and while the hotel did have hourly rates that fenton defendant did not have enough money for four hours so he left the hotel called his friends for more money and while waiting for them was beckoned across the street to the northwest corner of the intersection by an old friend whom you knew only by the name west west happen to live in the house at the location where he was eventual a reston and west took defendant's luggage inside of the house leaving defendant standing alone on the northwest corner of the intersection by himself with no luggage at the exact moment that the police showed up the defendant first testified that he denied any wrongdoing after defend his testimony the trial court then heard arguments from both sides in the admissibility of this prior convictions and decided to allow one conviction asked to reconsider its opinion based on this course decision patrick and clearly finding a pattern here as the crow court here to wait its decision on the motion in limine a until after the defendant testified with no justification given the court  they treated it as if it was a structure where a de facto structure where and here's the reason why you know the appellate court here in mullens treated the patrick decision as if it were structural while in name not and the reason i say that is because what the court did in this case is the say well for the same reasons and patrick we find the defendant here was substantially prejudiced but if you look at the two cases and in the people's brief the people explain correct but in an advert this court in fact did review its decision and patrick and said you know we did look at the whole record we did do a harmless error analysis i believe that was part of the structure where issue because the court said well we what i was saying is that this court and average was discussing its own decision and that's right i've seen your but the the what i was getting to is that what the court did here in following patrick did not follow the entire defense which the evidence was weak enough and patrick that the jury returned a verdict for a lesser included offense based on that affirmative defense and three that the appellate court here didn't follow him patrick that this court noted in patrick that there was music made of that prior conviction and it was in our because we argued and patrick that you know because this person has prior convictions they're credible and the the what i was saying earlier in response to justice freeman's question was that this case is substantially different from patrick and we know that in our case in our brief and when you look at it you see well in this case that we lease we would say and it's pretty clear that the fan that had to testify the art the evidence was overwhelming and there was no mention whatsoever made of this prior conviction in arguments these are three important points in the harmless error analysis and patrick that don't appear in this case and so when you see the word here saying well for the same reasons and patrick we find that this was not a harmless error it's very clear that the hell it was not basing that harmless error analysis on the entire record and that's really one of the points that people are trying to emphasize here that the harmless  analysis under illinois to this jurisprudence should always include a viewer the entire record and the people in their brief actually point out two cases one from the early twentieth century and one from the late twentieth century w both use that language the point being of course is that this notion of using and looking to the whole record to determine if an error is harmless has been around for a long time and it's a well established thing and it's clear that that the court did not do that here because there are such differences between this case and patrick ski's now obviously we're we're asking this court to clarify what is the proper harmless error review for patrick here in this in these types of cases and the first thing that people would ask this court to clarif what is the proper standard of review for a patrick here obviously in patrick this court said applied the harmless beyond reasonable doubt standard but as i mentioned earlier in in the case of people versus average both of which had the same air constitutional lawyer and so in the average opinion there's a subsection be entitled constitutional where in which this court because that argument first looks at its own opinion in patrick and says you know what in patrick we did mention  goes through and discusses what type of standard should we apply in this in this instance when we have a constitutional lawyer and in making that discussion the court says well look this is what federal federal rules require for regular harness their standard this is what state rules require for regular harmless or standard we think that because there is a constitutional lawyer here it should be a higher standard should be something more but the impetus for that higher standard is the presence of a constitutional where there was nothing in the union that stated that that standard should be used for anything other than a constitutional lawyer and so it seems that there's a significant difference that needs that you reconcile between this court's opinion and average which says there is no constitutional  whatsoever and this courts than other decisions like in radiation patrick which say on the one hand non constitutional harmless standard and patrick which says this area here should have  hungry small doubt and so is the people's position that this matter should be reconciled so that the proper standard of review is used in this area which is that for an unconstitutional error which is what this error is now as far as what constitutes a proper harmless error analysis of patrick area i mean the first and foremost as the people already mentioned would be to look at the whole record and this courts of the court's opinion here really makes this a point of emphasis that all from obviously here but there have been many cases in the past where this court has said you know there are some errors where there are simple enough that you can sort of paint a picture of the whole trial put your hand over the air and see what the  is and that will tell you there's harms most of those cases involve simply looking at the strength of the evidence without one piece of evidence as part of the analysis however there are other areas that are more complex that require a more particular ally's analysis and this this area here appears to be one of them because it involves not just a bench or only when that ruling is made and since you're the alternate goal of harmless error analysis is to find out whether error the outcome of the trial would have been affected in order to determine whether the absence of a timing there would have affected the trial more than simply looking at you can just put your hand over one part of the trial or another you have to consider several moving parts and so the people would have suggested four factors to look at and of course is that people were saying look we need to look at the whole record here as in all these cases we're not suggesting that this court look exclusively to these four factors but include these four factors in any analysis of patrick air the first of course being the strength of the evidence the second being the need the defense need t estify the third being the admissibility of the prior convictions and then the fourth being the use any of the prior convictions in the closing arguments applying those standards here which you see is that the people have shown in their brief and with a wink the argument that the evidence here was overwhelming in the people who have put in their argument that the this court's opinion in people vs heart vs heart and really the there is no question here that the evidence is as strong as far as defendants need to testify that really is well demonstrated by the testimony of the only other defens alibi it's not an alibi at all but more importantly if prayer testified the jury would be left with significant questions from his testimony that would all in his testimony effectively hurt defendants case more than it helps if you consider testified the defendant came in from out of town he had what did he was dropped off at eleven fifteen and he said he was going to a hotel he had a ten dollar bill in his book ok all those facts are facts testified to by career but if you look at those facts without the testimony of the defendant the jury would be left to wonder well what happened after eleven fifteen they don't know the chicago police department testified what happened after one fifteen bickered not what happened  defendant found and arrested on the north side of the street when the hotel was on the south side street if defendant said he was going to the hotel he wasn't arrested in the hotel he wasn't arrested in front of the hotel why was he on the north side of the street where was the fence luggage where testify the defendant had a one piece of luggage with him where did it go where testified the defendant had a ten dollar bill on where did it go where testified the defendant was given twelve dollars he was found with eighteen dollars where did the extra six dollars come from very also testified the defendant lived in detroit why did defendant tell the chicago police department when he was arrested that he lived in chicago all these questions are left from various testimony and it makes it clear that his testimony leaves more questions than answers for the jury and really causes defendants case more problems than answers as far as the admissibility i see that my time is up that as far as the admissibility goes the people demonstrated their briefs that akhenaten clearly shows that the prior convictions were admissible here and defendant doesn't there's no issue as to whether or not the convictions were used in the argument because they were not so for the reasons stated here we would determination and patrick that the proper standard here should be the chapmans and i'd like to make it clear we're not arguing that this is a structural error and we are arguing that it is subject to a harmless standard but that it should be harmless beyond a reasonable throughout the trial you need to look at the facts of the case and determine whether or not it is harmless error the fact that the state has argued that the there are factors  one of those should be the strength of the the evidence in the case and this for him patrick didn't and the opinion didn't discuss whether or not they considered the strength of the evidence however in this court determines that it should be part of the harmless  four houses down across the street kitty corner of the roof of a three flat yet in his report he did mention that he used an ocular and he said a mansion that the mullins was standing ten feet from a light we we know that the jury didn't think the evidence was overwhelming and we know that because the jury and during the deliberations asked to see not only the stipulation of the defendant's prior conviction but also asked to see that police report was used only to impeach this officer now granted they were given it because it's not evidence and that would provide proper but that they wanted to see that shows that the jury was debating the credibility of the officer and obviously they didn't think mean this there are it's not like a piece of evidence you know like a hearsay saemon think a man they could you know would come out and you could say that you know the trial the same here this error affected every decision that the judge and that impact that prior to say you know imagine the defendant testifies in this case goes through the process retract never mentions the prior and then the state can say you know what jury by the way not only does credibility of that officer whether he's telling the truth if we have a witness saying well no we've gotten there at a level where these times where the testimony regarding these terms approached the missions or were they aware of them eleven eleven fifteen testify by the testify the second time because the judge is going to have made the proper ruling and said whether or not it's going to come in so he's going to take back the fact that you mention and balance that against the jury knowing about this prior conviction and then decide based on all about whether he would testify that a key factor in your harmless error analysis they believe should be whether or not these convictions were admissible now whether or not the conviction is admissible we believe should not be part of the analysis because that boil every single patrick whether or not the convictions there were admissible so even though the conviction might be properly admitted we argued in this case that it was not but even if this court determined it was properly minute that doesn't really fit factor into a harmless error analysis  you know the delay in ruling is a serious error that shouldn't come down to whether or not the judge got the second part right you know the monk on rebalancing time right so what work should be  that the jury reduced to second degree and this showed you know a sort of balancing of you know that the fact that the jury had without this conviction maybe the jury would have potentially could have acquitted and hear that there is an impact on the the prior conviction and impact the jury because they asked to see the stipulation again they asked to share the stipulation again even though they had just heard it you know right before the closing arguments so was it as though they had forgotten the situation but maybe they want to look at it again same with the conviction was for and discuss that as part of their analysis during their deliberations so we know that this conviction did impact his credibility because the jury was considering  n and again it is regarding the factors that we discussed if if this were just determined that you know that the looking at the the strength of the evidence should be one of the factors again i just as i have argued we believe the evidence here was not overwhelming but it's a clear that shouldn't be the only factor in the should be the main factor because as i stated i acknowledge is that there is different than in other cases you know this error isn't something that is just a piece of evidence like a hearsay statement or something that comes then that it's you mr look at the strength of the evidence aside from the air because then they argued earlier you know this really permeates the whole trial and really of facts every aspect of the trial is harmless and what standard of review and what analysis should be applied to that air your honor asked about whether or not the times were approximate and actually on the supplemental record page eight twenty nine officer  mcgrory did in fact testify he was asked what at what time approximately did you begin the surveillance and he said around eleven pm and certainly there's no testimony involved in the case that trenton barriers phone and the officers watch as roll synchronized or anything of the sort but so the times eventual sensually evolve down to is that trenton gregor put in there at eleven fifteen and the officers clearly were watching defendant on the northwest corner of this  intersection for significant amount of time after that and more than sufficient amount of time after that for him to commit the offense of possession of controlled substance with intent to deliver which i mean as as offenses go this is not one that requires a great amount of time to commit or you is the amount of time to establish constructive possession and some intensive deliver which was clearly established when the officer saw not just the transactions where he accepted money and then gave away a small packets of heroin but in fact when the officers found the heroin itself it wasn't just in a pile you know it was this is actually in tinfoil packets this is pre set prepackaged for sale  o kind of counsel commented on the strength of the evidence here and one thing i want to make clear is that there really is only one argument that's been use you know the people in their brief although the state's case unassailable and it's because there's only one argument that's been used at trial and on now an appeal to try and poke a hole in that the people scase and that is this vice case report that officer mark rory filled out but you'll notice an officer records testimony he said that this vice case report was not intended to include every single detail of the entire arrest and so by the nature of the report then it's inevitable that some things are going to be left out so yes he left out  because the officers who did the arrest they were directed to the fence post that he saw him retrieving objects from and in that sense force is where they found the narcotics they officers had a search incident to arrest and the surveillance officer saw him put the money in his pants pocket in a pants pocket they found three fives and three singles he had three transactions that the officer saw and they also found the money in crumpled up condition it's not as if they were all in a wallet r now as far as considering first of all the question the jury asked the people would ask this court to follow its opinion in the case of people versus patterson patterson involved a crawford violation test hearsay testimony which was found to be testimonial admitted against the defendant's sixth amendment rights in that case this court's found proffered violation but then looked to see if there was harmless and one of the one of the arguments the defendant made in that case that the air was not harmless was that the jury asked the question asked to see the evidence admitted in violation of his constitutional rights and this court rejected defendant's argument that showed that there was no question that the jury considered that evidence in this court said quote however the mere fact that the jury asked for a copy of the testimony does not create a reasonable probability or even a reasonable possibility that the jury relied on that testimony in reaching a verdict contend that it does in our view is purely speculative and so we would as this court to follow that and reject defendant's argument that just because they asked a question about this is evidence because in order to determine whether absent the air the trial would have been affected the outcome would have been affected when you were dealing with among government decision which is any patrick your deals with the mogami decision you're going to have to look at that look every decision because if it you absent the error the court's decision is going to take place before trial that's how you respond here you make the time improper but then you need to see well ok should those prior convictions come in because of this court were to look at a case obviously not this one where the people were arguing that they were properly admitted but if this court were to look at a case in the future and say well you know what we don't think these prior convictions were properly admitted well that may change things that's a benefit to  defendants in these cases and that and obviously the people understand that but what we're arguing is for this court to take a harmless error analysis of patrick cases that gets it right we we really want to see an armless here and houses here that h and just briefly on the standard of review the people would just say that the chapman does not apply after this court's decision and haven't because chapman explicitly states we're only making this ruling because of constitutional error the presence of a constitutional or there's no language in chapman and says there's a constitutional magnitude errors that implicate constitutional rights because there's no language whatsoever in chapman that says that it only states we have a constitutional  here what standard should we apply and that's based on this court's decision average which clearly stated there is no constitutional lawyer here chapman is in a political to this case and this is why we have asked this court to to reconcile the differences between