to death the first issue that all argue is the second issue in my brief involving the instruction that we believe should have been given in this case on capital cases a sentencing jury will view a defendant who is eligible for parole as a greater threat to society than a tenant who will never be released and they will be more willing to impose a sentence of death this principle was recognized by the united states supreme court in simmons versus south carolina in  four but six years previous that this court's decision in godchaux foreshadowed the supreme court's recognition in gatto this court recognized that from the way in which aren't jury instructions were written by jury couldn't believe that the defendant in a multiple murder situation would possibly have gotten out and in order to protect society they would need to sentence the defendant to death this court held that where the only sentence other than death was natural life imprisonment further instruction was required telling the jury of this fact natural life imprisonment means that a defendant will never get out and that he will spend the rest of his life in prison joseph bannister's case is unique and has not been considered by th previous decisions of his cause the best is is there any significance to the fact that the fountain here could have research received a statutory terms of years your honor it's our position that regardless of whether the term of years was one hundred seven or two hundred seven the sentence that the fun it was receiving was natural life in prison based on the mandatory add ons and the mandatory consecutive sentences that came into existence more fairly recently in our unified code of corrections those are significant differences from the law previous to that it's much more similar to a situation where they're in a multiple murder situation where you have a mandatory natural life sentence if death is not imposed in mr bannisters case you have a mandatory minimum sentence that amounts to a natural life imprisonment these are these laws mandatory add ons and the mandatory consecutive defendant in this case would never get out he was not going to be a threat to society gottschall recognize that the jury could be misled by our instructions and held that in those in that situation where defendant would never be released from prison if as the only alternative to the death sentence and in those circumstances instruction was required to accurately tell the jury what it needed to know to make a decision as to whether or not the death penalty was  natural why that is the only request that i'm asking for obvious reasons one the minimum sentence is probably not a sentence of mr bannister would receive if he didn't get the death penalty the minimum one hundred seven years which added  defendant will spend the rest of his life in prison based on the minimum sentence that he is mandatorily required to get absent a death sentence that in those circumstances at a minimum you need to tell the jury he will never get out of jail if you don't give him the death penalty he will get  hundred seven years in prison that specific doesn't specifically tell them that he's never going to get out of jail but it pretty well tells them that he's never going to get out of jail was that instruction offered no your honor it was not the instruction that the defense attorney in this case asked for was that the jury be allowed to know that the defendant could receive a sentence of natural life imprisonment that was rejected by the trial court based on previous decisions of this court what the trial attorney in this case should have done and should have recognized is that the minimum sentence the defendant was going to receive absent the death sentence was natural life it wasn't natural life in those words it was natural life because he was going to have to serve one hundred seven years or with good time credit think it was ninety seven years that he would have to serve under those circumstances the defense attorney should have recognized that nass for instruction that we're advocating it's essentially what this court said in god show should be done and had the attorney realize the minimum sentence in this case that would be the appropriate instruction to ask for it doesn't that become in this case maybe it's a little easier to employ but if that's the bright line rule with respect to where it's a distinction without a difference number of years versus natural life i mean do we have to look at cases for example with the defendant who had a heart condition and had a life expectancy of twelve years and his sentence you know could be twenty years is that tantamount to natural wife i mean when we wouldn't be proud of problematic assessment to me certainly justice thomas that will be will be problematic in a future case not in this one obviously as you recognize our advocate the only thing that i'm advocating is in this case that there's clearly no  controversy the state has not argued that the defendant is going to get out of jail when he's one hundred thirty three years old for obvious reasons and so in this case we don't have any problem in any future cases the only thing that i would suggest would be that this would be something that a trial court would be in a better position to determine that the arguments could be made to a trial court in a future case if someone had a heart condition or if a very elderly person were to commit a crime then you would have leave that up to the trial courts discretion that's the only other way that i can see the best possible way in a future case that's not for this court we don't really have any question there's no controversy that the defendant in this case is not going to get out of jail he's either going to get the death penalty or he's going to spend the rest of his life in jail addition to the instruction that we believe should have been given based on gotcha we've also argued that there was an instruction that was given that was inappropriate was confusing misstated the law that's the third issue in my brief modified the modified i p i seven c six that was prepared by the prosecutor it was given over objection the instruction that should have been given was prepared by defense counsel and it reads if after weighing the factors and aggravation mitigation one or more of you determine that death is not the appropriate sentence then you should sign the verdict requiring the court to impose a son's other than that this language matches the actual statute it's very easy to understand it states that one and only one juror needs to decide the death is not the appropriate sentence and if that happens then no death verdict should be signed this instruction was refused by the trial court and the modified instruction that was prepared by the prosecutor contained confusing language there was a double negative in it and if it's read literally it tells the jury that they must unanimously find it that they have to unanimously find that death is not the appropriate sentence and that's just inaccurate the instruction reads if you do not unanimously find from your consideration of all the evidence and after weighing the factors in aggravation and mitigation that death is not the appropriate sons then you should sign the verdict requiring the court to impose sentence other than death and besides not making any sense it does say that they have to unanimously find that death is not the appropriate sons and that's incorrect other instructions were given that correctly gave them the standard that does not mean that the air in this case is harmless or corrected if even one instruction could have confused the jurors then reversal is required there could have been one juror who was holding  for no doubt and by directing his attention to the language in this confusing step instruction that juror could have been convinced that his vote meant nothing despite the other instructions there was an instruction that stated if you do not  sly find that death is the appropriate so that death is not the appropriate sentence that could have led any that could have led a juror to change his vote and based on that it's our position that this instruction prepared by the prosecutor and given over objection by defense counsel was so confusing the validity of the verdict in this case is called into doubt and requires reversal unless the court has any other questions if we agree that th up to natural life is that right that's correct your honor and i agree that if that should not have been included in that instruction the defense attorney again was was trying what what i think was a good effort to get an opportunity to you don't have to worry about the defendant being released he's going to be in jail for up he didn't do it appropriately if that instruction had included language that this court is approved in people versus gun show then it would have been a correct instruction but at a minimum the last phrase in that instruction was incorrect and could have been excised it was much more easily understood than the prosecutor's instruction is it is your position that this court has never rejected the kind of instruction you're seeking here the instruction with recycled this court has held in bean and williams and i believe there was another case cited that in situations where defendants are subject to the minimum and where defense attorneys have asked for instructions saying that the defendant is subject to a range of penalties that in those circumstances that it instructions not called for the defendants in benin williams and the other case i can't recall the name of were subject to a minimum sentence of twenty years there could easily have been a controversy regarding whether that defendant after serving a minimum sentence with good time credit if any that whether that defendant could be released into society and then provide a threat so in those cases though there could have been and probably would have been a question of whether or not the defense would spend the rest of his life in prison that's that certainly wasn't addressed in those cases there was no note the court did not address whether those defendants would spend the rest of their life in prison regardless of the minimum sounds so what we have is a case that has come up since the mandatory add ons and since the mandatory consecutive sentences i believe in two thousand those came into effect the defendant in this case was charged with this crime and if in august of two thousand so it was the very first year that the mandatory consecutive years were in the statute so we have a situation was prior cases of this court dealt with defendants who were not subject to mandatory add ons for using and using a firearm and causing great bodily harm or death makes a difference mandatory that makes a difference in my in my suggestion to you that those prior decisions did not prohibit you from giving that instruction this case those prior decisions were prior to these mandatory sentences which result in this huge minimum sentence for joseph bannister those cases dealt with situations where similar in nature of a defendant to robert got shot he was subject to a mandatory minimum sentence of natural life imprisonment or death to defend this case is subject to a mandatory minimum sentence of one hundred seven years or death i suggest to this court that there's no difference between a mandatory minimum of one hundred seven years and mandatory natural life imprisonment you standing on your brief evidence of  would have done differently had he and probably with respect to the waiver of the of his right to a jury trial for guilt or innocence you know there was no argument what he would have done otherwise and he didn't indicate that good morning honors may please the court now insult my name is carol gaines and i represent the people of the state of illinois on and on september twenty third of the year two thousand and six year old brittany bannister had to ask her father bannister daddy are you going to kill all of us daddy are you going to kill everyone in this room after the defendant stood there with a gun pointed at her grandmother while her grandmother held britney and her arms this is after the brittany observed her father the defendant kick the door into her home shoot her mother twice shoot her aunt three times killing her all in front of the six children who lived in her home with that in mind i'd like to address the issues raised by defense counsel this morning in court with respect to the gotcha instruction this court has held that got show is only a play ball to a multiple murder situation and has never been extended to a situation where there is a single murder indictment and the reason for that this court has held that as long as there is another sentencing option a term of years or even natural life as long as there is an alternative there is no reason to instruct the jury with the mandatory natural life provision such an instruction the defendant has said here today is contrary to this court's well established precedent which does not recognize and should not recognize facto which he term calls in his brief a defacto natural life sentence which is based on a term of years i would point out as justice thomas pointed out that where do you draw the line where do you stop having to take into account if you allow it in this case where you allow it down the road and why do you put that in the hands of the trial court what about a defendant you have to take into account the defendant's health history his condition in life the term of years if you have an older defendant with a young a smaller term of years or a greater term of years with the younger defendant with a health history who knows all those factors if the jury has to consider those and be told those and b explain that to them tracks the jury from their from their job of assessing whether death is an appropriate sentence based on the factors in aggravation and mitigation court has again repeatedly not allowed in a single murder prosecution has repeatedly refused to extend it would argue once again it's not recognized and that this court should not further extend that rule with respect to the jury instruction issue the verdict forms in this case the closing arguments and the jury instruction sufficiently conveyed unanimity requirement to the jury at both stages of opening and closing argument of the aggravation mitigation mitigation stage defense counsel repeatedly informed the jury regarding the unanimity requirement before they got one instruction from the trial judge on four separate occasions the defense attorney it's all she argued if one of zero five under the law the defendant shall be sentenced to death if you determine unanimously after weighing the factors in aggravation in mitigation that death is the appropriate sentence if after weighing the factors and aggravation a geisha are unable to determine unanimously the death is the appropriate sentence the court will impose a sentence other than death they were given verdict forms which told them what to do if they were unanimous told them what to do if one or more of them had determined that death was not the appropriate sentence the glitch in the instructions comes in seventy seven point zero six the second paragraph which in fact includes the insertion of the word not in the final sentence the flaw in that instruction contrary what's the defense has argued is that it doesn't really tell the jury what to do if they're unanimous for no death and under those circumstances no rational group of twelve people who have all decided that they're not in favor of the death penalty are going to sign a death verdict basically when the  went back to deliberate they had three options they could be unanimous for death under those circumstances you look at the verdict form and you sign a death for if you're not unanimous whether you're one of eleven eleven to one six to six ten to two whatever it is if you are not unanimous for the death penalty or for no if you are not unanimous for no doubt then you sign a no death verdict the jury instruction the problem with the instruction is that it doesn't tell the jury what to do if they're unanimous for no it doesn't tell them you have to be unanimous for no death under the circumstances what were new numbers for no death then we sign no death verdict if you have to look at the instructions as a whole you cannot look at one word in one instruction in isolation the question is whether or not the jury instructions as a whole fairly fairly and accurately and comprehensively apprised the jury of the relevant legal principles in this case if it that the sustaining of the objections to the questions to the defendants the sister doing mitigation cheered any problem with with during any problem with that regarding the propriety of that with respect to the closing arguments are the prosecutor's comments regarding the defendant's lack of remorse were really based on the defendant's statements to the police as well as his the defendant's the defendant's infractions while he was in prison and the things he was was took responsibility for him didn't take responsibility for it was a quick it was an attack on evidence that was in fact in trial and with respect to with respect to with respect to defend a statement to the objections were sustained the jury was instructed to disregard if you find any impropriety in that any impropriety was cured by the trial judge's actions in doing that and they certainly didn't impact the death verdict in this case with respect to that very minimal  argument given by the prosecutor to answer justice freeman's question with respect to why the prosecutor would continue to ask questions regarding the fairness lack of remorse i can't read the mind of the prosecutor but i can't think of any reason other than defying the trial court by repeatedly asking for including that in his closing argument he was simply trying to sway the jury that this defendant was not worth going to live and it was inappropriate and should not have been done with respect to  with respect to the modified i p i instruction the state has suggested that all the other instances where the jury received the correct standard that they must be unanimous in finding that death is the appropriate son's we don't know what instructions the jury's focused on the state can't read the jury's mind any more than i can we don't know what they said back there what they discussed which instructions they looked at which who held up with bad instruction and said hey look at this we have to be unanimous in finding that death is not the appropriate sons we don't know what happened when there are conflicting instructions one with good law one with bad law this court is held there is not the error is not harmless and reversal is required with respect to the first issue the got show instruction state continues to just continues to emphasize the fact that this is a single murder which is a multiple murder and i find it somewhat ironic that bannister would have received the benefit of the god show instruction had sharon banks unfortunately died as a result of the gunshot wound she suffered this is a situation where the senate doesn't receive the benefit of instruction because one of his victims lived it's very ironic this court should recognize that decision the circumstances of joseph banister are the same as the circumstances of robert gottschall instruction should be given in this case what we're talking about when we talk about how we're going to decide this down the road as stated suggested it's going to be too hard to figure out when to give the instruction when not to give the instruction right now we're faced with whether or not the death penalty that was imposed on joseph is a reliable sons and we don't know that because the jury could have could have decided that he might get out of jail and we don't want that so we're going to give him the death penalty while he's not getting out of jail and he should have gotten an instruction that told him that we want to know that the death sentence the joseph that was reliable not the one that comes up next year or five years or ten years down the road for these reasons we suggest that the defendant sentence should be