stopped by state trooper for a level three inspection bill has was in the trailer he did not have a lights not that he was training the driver on his trip from california to bolingbrook illinois during the inspection based on information that he uncovered the trooper let motion that adopt this motion and these facts at the hearing on the motion the state argued that it want to consult wanted to consolidate because it's painted for with this from california and it needed to consolidate out of convenience and counsel offer to stipulate because that did not happen we end up with the additional type of prejudice but at the motion to consolidate it was very clear that these were antagonistic defenses that they were clearly antagonistic because torres was going to it was obviously mr bell chance who put these drugs in the trailer account from these people and he continued on this line of defense saying kill test pilots he was in charge of everything he told torres what to do he was the one who was in charge so his defense was not simply i don't know what happened it was someone else has is the one and that's your characterization of it but and this is where we have to look at the record and view it in its totality ultimately e terms of the inquiry for the trial court judge it's is it your view that it is that's represented at the time of the motion hearing as opposed to what happens during the course of trial that we should be looking at i think if you look at what happened it's time the motion hearing you shocked the trial court be given some leeway of balancing certain factors here one of the factors presented by the state was that witnesses having to bayport in from california quick the trial court to try he agreed that they would take efforts to try to minimize this and my answer to you would be what price is a fair trial and what point can the state simply say i mean they brought in two witnesses from california ultimately when they said they were going to bring four that's obviously a much court didn't get away now it's happy it's if we're going to put a price on a fair trial which is how many witnesses are not and again they offered stipulate they could have gone in the other room they could have drawn a stipulation state didn't even present that the state said we're bringing in four witnesses in california they didn't name him they didn't say we're bringing in maria to santa this this isn't day house for this and to other i mean people or whatever their testimony  yes regarding the fact that these statements against your client should not include the statements made by torres that came in through hearsay of the trooper primarily should not be used against your client that instruction was given is that correct that's correct  more compelling than the actions of state or even the world works the trial court these are two people that are sitting together they are defending together and when one of them is putting his pointing the finger at the other one it presents a very clear message the jury is the one that made this into an antagonistic that's not the state see when we have we need overwhelming evidence to create harmless error here and all the state although the state presented this is an issue of constructive possession the the largest crime in this in this trial with controlled controlled substance trafficking the superclass sex offense and that requires a defendant knowingly bring the drugs in illinois for sale not just that he have them in the trailer that he knowingly bring them in and here we have evidence a trial was responsible for the vehicle to stop tourists responded that he was responsible and he said that the load lock on the trailer belonged to him there is not overwhelming evidence here sufficient to say that the error here of making these  this is an abuse of discretion standard and our courts have described an abuse of discretion in several ways one a ruling in which no reasonable person would take the view adopted by the court a ruling made without the employment of conscientious judgement or and in this case it seems the defendant has argued both of those reasons the first is when a codefendant has made hearsay implications here said missions implicating the defendant and obviously because this has denied in his argument his constitutional right of confrontation and secondly the second reason for severance would be when the defenses are so antagonistic that a severance is imperative to assure a fair trial and so when we talk about the first issue of confrontation i think there's two things that we need to focus on  evidence only against tourists and when that has been then that that's great that yes your own view now implicates that are you saying that he didn't specifically say he did it is that what you mean when you say that well i mean to the level you said you hate them to the level that wasn't able to be corrected by the jury instructions so was there implication or not what were the mean something to think is in the discretion of the court because i think you know this the definition of implicate what does it mean to implicate someone if we look at what if we look at the pretrial hearing what exactly did counsel for torah say that they were going to show and he said a few things he said the codefendant or the defense is would be antagonistic because he statement i think that it i mean i think you can make an argument either way i think it's a fair argument to say that yeah that that does implicate i think it's also fair in the discretion of the trial or to take a look at bad say no it doesn't implicate defend it especially in light of a and i feel like what you just said is probably specifically toward the antagonistic argument that i believe that clearly in their discretion that i'm these are not they could've easily found recently that these were not antagonistic defenses and simply because counsel for torres said we are directly point the finger at them does not mean that they directly pointed the finger at them so i think that's my argument with that regard that when you say that we are going to in a way assume that he was going towards make the statements regarding that are defendant met with the three hispanic men if your honour's want to have assume that he is implicating them in my argument would be that the court you're a potential prejudice to defend it by instructing the jury that any s t made by one defendant may not be considered by you against another defended and i'm on the stage is also well aware that when constitutional rights are issued that courts have found a living structures are not always adequate but i believe that in light of the minimal amount of potential prejudice in this case the living instructions were affected in this case it was reasonable in this particular case given that if it were just situation circumstance in the statements that were made it was reasonable because the instructions were clear and i think the circumstances are such a jury could reasonably been expected to follow those instructions and the supreme court case of group time which i'm i believe we both cited in our briefs the court the supreme court says of the trial court must formally make a determination whether the risk that the jury will not or cannot follow instructions is so great and the consequences of failure so vital to the defendant the practical and human limitations of the jury system cannot be ignored and i do not believe that we have such a case here in his reply brief defendant made the comment that the only thing that separate these two cases was that two defendants was torres the other the separated these two defendants was toward statements that defendant met with these three hispanic men and i do not believe that there is truth that is true there's a whole bunch of things that separated these two defendants of trial and the argument was wide towards alternate often defendant found guilty of everything with the same it must have been the statements that torres saw of the bennett meet with these three the trainer that was brought in all over and over again that he was in control that he was the one that picked up the load that he was the one who witnessed the picking up and followed that he locked the locks of the trailer after the load was picked up i mean we see all that stuff in evidence testified that a trainer without a valid license is basically meaningless there would be no purpose to have a trainer who's training someone to drive a commercial load he didn't have a driver's license that would be meaningless and so i think what can easily be inferred there is ok there's a reason why defendant needed to be on the strip he didn't have a license it didn't make any sense for him to be training someone to drive without a license there's a reason why he needed to be on this trip there was something different about defending and only purpose was to train the driver he was very specific can't testify that he thought it was very short and simply stated and there must have been a reason why defendant needed to be on these trips i think there's there's all sorts of evidence that apart from these out of course its fundamental constitutional rights were violated the air was harmless beyond a reasonable doubt the jury saluting instructions czerny prejudiced and i believe that and i did not get to this because i believe that it's this the stronger it seems that they only only address the antagonistic defenses they did not write anything about the confrontational issue in his that matter i don't believe it matters because i believe that it was our big confrontational issue was argued by tourism counsel bil is that torres argued and this is in the supplemental supplement to the record pages five and six that torres argued that the defendant chose not to testify at trial torres would be denied his right to confront defendant regarding his prior statements and that's why i mean i'm saying that by adopting that motion the defendant was essentially making the same argument regarding testimony on the area i think a fair argument to me could be made there but i mean it's hard what you're asking did good defendants specifically say that that they might not get to confront no that specific argument was not made but i do believe by adopting torres's motion that they did adopt the same argument the same confrontational argument describe this as rigorous cross examination i'm from his codefendant and i think that if we look at that i think we also see if we actually look at the trial which and again i mean this goes back to really argument that the trial court is placed in a situation when the when they're arguing or hearing arguments and when the ruling on this work they can jump ahead and look at the future and see exactly what's going to happen and trying this is how it's a tough situation to put a truck or in because we're saying not only do you need to predict but you also need to make sure that prediction is right we're to throw it out so i think that no argument was made by either counsel in any of the pre hearing arguments or the pretrial hearings that there be any sort of issue regarding cross examination the defendant but directly to your question towards counsel asked offended if he was the one who put the low box on the truck and trailer door that was one of the questions he asked towards counsel then continued question defendant about what he did with the keys after locking the load and i believe that when this is viewed in light of all the other testimony that in cross examination defended you know any of the council did not listen to any testimony that was already not presented by other and look at the answers he did not to listen any further testimony that was not already presented to the jury in some manner in some form during the rush to trial and i believe that this court can find that the trial court by not anticipating the great confrontation issues that would be good filters would be forced to contend in this trial it used discretion especially when faced with such an antagonistic defense with so much proof i'm going to be pointing the finger over mr bill chance i'm going to use these facts and i'm going to point the finger and i was when the state was talking about what does it mean to implicate and as far as prejudice to mr bill chose from being cross examined twice again this is the situation at the time that this court looked at him so the supreme court looked at in the being case and the case said in a situation like that where b manhood and early continued attack on the stream it was him it wasn't me it was him it wasn't me nat kind of attack is mounted by the defense by the co counsel it is so much more damaging than anything that can be said by the left the truck to pack for the trip he left the keys with mr torrance and whenever he left the truck to shower to eat the truck was locked in taurus the driver retained keane's i simply there is simply not overwhelming evidence