good morning ladies and gentlemen our first case of the morning is one hundred ninety four or five people the state of all my verses montana seven majority found that the evidence was not closely balanced but the dissent found that under a common sense assessment quote it is just this type of case that warrants reversal under the first prong of the plain error doctrine and that's our position here so this case really hinges on this court's assessment of the evidence of this court applies a commonsense assessment in context of the circumstances of the case and applying that standard to these facts it's clear that the evidence here was closely balance it's similar to the evidence that was presented before this court in people versus nailer it's a credibility contest between two competing credible versions of the events there's no extrinsic evidence corroborating or contradicting either version and the case hinged on the jury's determination of credibility now trial there were three deputies testifying for the state and three defense witnesses including the defendant who just testified basically to two conflicting accounts according to the state the deputies went to th house to serve a custody order for the minor child alice and the defendant told them that the child was with her grandmother bonnie on vacation he looked at the custody order gave it back to them and said it wasn't a search warrant and then demanded that they leave as he poked one of the deputies mcgrath in the shoulder now they tried to arrest him for the pope but he resisted and they had to take him from the front door down to the gravel driveway to control him they said that the defendant was lurching around and during that deputy more hurt scratches on his knuckles and that's why this was charged as felony resisting but according to the defense the deputies were belligerent hostile and they escalated the encounter from the beginning they came to the savvy house at six am they knocked for five to ten minutes they were met by a family friend angel can bring who answered the door they tried to serve the order to her and she said she couldn't take it because she wasn't family and she didn't live there and they threatened to arrest her and the defendant came to the door and told them that alice and bonnie were on vacation they called him a liar and an argument ensued he repeatedly asked them to leave and they refused and they grabbed him roughed him up on the gravel driveway he wasn't wearing a shirt so you scratched on his back he also wasn't wearing shoes and the deputies accused him of resisting because they were angry at him for lying and for not letting them into search and they also learned mcgrath admitted that you were in that bonnie and ls were in fact not in the house so the defendant's account was that the deputies escalated the encounter they didn't believe him and they were wrong so they had a motive to make this up now neither of these accounts is implausible and neither side presented extrinsic evidence corroborating or contradicting either version both sides present presented photographs of injuries but neither of those photographs went to the causation of injury they went to the fact of injury so the case really did hinge on injuries determination credibility and as a nailer that's a closely balance case now this court reviews for thirty one b violation under the first song and way trials are fluid complicated things lots of things happen lots of people say different things and there may be in hindsight error occurs and the question here would be how do we par enough for the case to be reversed i think it depends on the context and what i mean by that is there's not we're not arguing that there's a kind of error that's never or always going to be error one of the states examples was that if you have a leading question that that's somehow  trivial error you can have a leading question that's not a trivial error not if it goes to the exact issue in the case and so in this case with the rule for thirty one b violation the state has argued that there's no connection between that violation and a jury's determination of guilt but that's just not true for there before i get to that and you know we we argue in our reply that well for thirty one b is anything but trivial the way this court has enforced and interpreted the rule has shown that it's not trivial the rule in ninety seven was codified the holding in there that if the defendant requests these principles then the court has to ask the veneer these questions or it's reversible error and then in two thousand and seven this court  modify the world to say it's required regardless of the defendant asks and in thomson and in wilmington require that this court both ask whether the veneer that the court asks whether they accept and understand the principles and so in this case the the connection between the violation and the jury's terminations is this now the defendant he testified he presented evidence of a little talking about two principles here the presumption of innocence and the burden of proof and if you have a juror or jurors who fail to understand who fail to appreciate the significance of these principles you have a closely balance case where you basically have even scales if you have a juror who doesn't know who to believe and then says well maybe the deputies are more believable i'm not sure but votes to convict that's prejudice and that is actually prejudicial effect and so your question it's not the kind of error it's the context and in this case this case hinged on sides also have to be plausible i think that that's that's a part of the commonsense assessment i don't think that the ruling nailer is different from the standard that you buy a common sense assessment to the evidence i think that it's just explaining in that particular circumstance what a commonsense assassin it's so if you do have two competing versions there's no extrinsic evidence grabber in your contradicting and both sides are credible versions that's a close accounts case so and as much as a person it would be but i well we you know we recognize that in the appellate court opinion of justice holdridge said that there is still disagreement he agreed with your dissent which which your honor society which just said that because of the importance of roe for thirty one be it should be second prong now we understand that this court has found that it's not second prong of course the rule is serious enough that it would make sense for it to be second prong but this court this case can be decided under the first prong because it's clear what the connection is with the rule for thirty one b violation wherever you have that right it's very clear this court's precedent is clear defendant has to show prejudice but i think the disagreement is whether the defendant has to show that he was actually objective we prejudiced so in this case he would have to show that there was an actual bias you're sitting on that your jury and this court's analysis of the error and haron illustrates how you can demonstrate actual prejudice by identifying the prejudicial so inherent the error was the jury instruction or the trial court instructed the jury on the eyewitness identification reliability factors using the word or between the factors instead of and and found that in a closely balanced case there is a prejudicial effect that i actually prejudicial for the defendant because the risk is that the jury would decide the reliability of the identification based on one factor instead of on all the factors and this court have the same error that it considered  prejudicial effect so the before thirty one b error is analogous to that here you can never know almost never know if a juror is actually biased due to the private nature of jury deliberations you would essentially not be able to recognize this error on appeal if you were to hold that the defendant had to show an actual bias tree in this case and the state also argued or cited four cases to support its argument about making a subjective showing but what these cases show again is that clear error in a closely balance case must be  context if the error threaten to tip the scales against the defendant it's actually prejudicial of three or four of those cases three of four of those cases white williams in re m w at evidence that was not closely balance in a distinguishable based on that in the one case where the court found that the evidence was closely balanced johnson this court considered whether it was error when the prosecutor remarked during closing that the defendant had the opportunity to prove his innocence or driving under the influence by taking a breath test and that he refused to do so so this was aired but the court reviewed the closing argument and found that in context the comment wasn't prejudicial because the defendant didn't show that the verdict would not be the same without the comments this court simply undertook a commonsense assessment of the evidence and the court was able to discern that the evidence your error did not impact the evidence it was not the closing remarks can never be prejudicial but it was in that context so i just depends on whether there was air and whether the evidence was so closely balance that it threatens to tip the scales against the defendant and i'd like to just address in the time remaining just a few of the state's criticisms of the defendant's account because as we said this this case really depends on whether the evidence is close it down it's i'd like to know that the state didn't adopt any of the majority's findings on appeal and those findings show that the majority clearly misapprehended the evidence they found that the family friend angela daken brain was impeached because the deputies testify that she told them no one was home but she testified to contrary evidence she said that she told them she wasn't sure if anyone was home and explained that the only person that she had interacted with was howard savvy who after work around two or three in the morning and also this that the state corroborated its case by four years photos of more scratches on the state's photos lead to the fact of injury not causation and finally that the defendant was impeached by stipulation of the defendant stipulated that officer martin who had visited the home the night before was there at five thirty and he would testify that the vendor told him that bonnie was out running errands but the defendant testified to contrary evidence that he told them that she was on vacation he took them out the following morning and they actually corroborated that testimony and so that was not impeachment by stipulation but here the state asserts of there's no real contest between the accounts and that the defendant's account was inconsistent improbable and largely uncorroborated and the state ignores key evidence in making that assessment as to being uncorroborated it ignores the undisputed facts that the deputies came over to the second house for the third time in a ten day period to a certain order for a child whose mother had recently died at six am they were just visited the night before they admitted me not for five to ten minutes and the defendant said they couldn't come in but they remained anyway even though they didn't have a search warrant even after the defendant was arrested they still tried to go into the house and they admitted that they learned that the child and her grandmother were in fact not there and so this evidence corroborates the defendant's testimony that the deputies escalated the encounter the state also points to some a consistenc and i believe we expect there to be inconsistency as between witnesses in fact under a common sense assessment that shows believability because you don't expect all the witnesses to experience the same exact thing in fact if they all lined up their story that would be indicative of collusion and seem false all of the things that the state pointed to were for the jury to weigh but with what's more is the state did not take into account the weaknesses in the deputy's testimony they were unable to recall all the aspects of the defendant's account that they were aggressive and had escalated the encounter mcgrath and more couldn't recall whether mcgrath stuck his foot in the door to prevent them from closing it more couldn't recall whether he shouted profanities arthur couldn't recall whether defendant said if maybe one of you could go into the house and he said if one can go in then all have to go in and i was certain that on cross examination that he couldn't see specifically if the defendant had poked the grass that he admitted that there was just some sort of contact and the defendant ultimately was not charged with the legit poke and so these these are witnesses for the for the jury to weigh and as to being improbable there's nothing improbable about this account there's nothing improbable about three deputies escalating an encounter they're trying to get custody of a young child from a family only a month after her mother's death and they want to search without a warrant but they're told they can't and they don't believe it and they're wrong this is an account of police brutality and misconduct it's not improbable under the context of the circumstances here it's not improbable under common sense as the evidence and what the state's characterization shows that this is indeed a credibility contest for the  here we actually find ourselves in a uncharacteristic amount of agreement this morning that the defendant has conceded that he forfeited the error in this case he neither logic contemporaneous objection issue the state has conceded that there was ever that the trial court failed to technically comply with the illinois supreme court rule for thirty one that is if you separately ask each prospective juror whether they understood the rule for thirty one principles including the burden of proof the presumption of innocence and whether they accept this fact and in the reply brief and this morning it appears that the defendant has conceded that a showing of prejudice is required for first pro defendant seems to suggest that that prejudice can be presumed soley from the closeness of the evidence and the court's precedents in this matter would suggest otherwise looking at the white decision from said or defend it must show that the verdict may have resulted from the error and not the advocates and we would suggest that that is a commonsense holistic analysis that requires not just closely balanced evidence but also some sort of logical link at the very least between the error and the verdict and we can again see that in this court's prior he says that the court has always looked to see is this an error that even though it's not serious second prong plan or we believe could have impacted the verdict then after all that it's the primary difference between first and second promptly never as a second promptly where there is are serious enough that prejudice is presumed with first or the court looks to see is there some link between the verdict and the evidence and the cases the defendant has relied on show that that is what this court dockets if you look at the hair and decision the court an error with regard to the assessment of credibility there wasn't a jury instruction that all sleep instructor the jurors about how to assess credibility the error we have is the rule for thirty one there and in this record there is no indication that that area of impact the verdict listen that really the question here is what is the nature of busier air and i mean we can you know this is not exclusion of certain kinds of evidence this is not a jury instruction that deals with one issue in the case this is this is something else and so i think perhaps we have need to discuss a little bit about what is their error this court has certainly said that the importance of confirming from the jurors that they understand the fundamental principles of i'm messing it up if you didn't fail to ask those questions entirely then we would have nothing in the record to tell us whether the jurors understood it or not so that record would be cloaked with the presumption of unfairness but here the court asked it just asked in the wrong words and so each of the jurors committed that they did not have a problem with those principles and indeed they were instructed on them again in the jury instructions as in this court's wilmington decision from two thousand and eleven we should presume that the jurors followed those instructions that they understood the instructions and understood the presumptions and they fall of baseball of the rule for thirty one principle there certainly could be records that would show something else or not show affirmatively in this case that the jurors probably did understand those principles the one meeting decision from this court did something else in looking at whether there was a prejudicial of fact remember all four thirty one error they looked at whether the jurors themselves thought it was a close case or had had reached an impasse and that doesn't require we're not arguing that they would need to show that there was an actual bias sure they'd need to get it's verdict what we're saying is there needs to be some logical length and if again if there hadn't been any questions about this presumptions then there might be but as in wilmington here we can see the jurors did not take a long time to liberate the jurors did not reach an impasse the jurors did not send questions about the burden of proof the presumption of innocence we don't know exactly how long they deliberated but we do know that they got the case at the end of a full day of testimony and the result the same day so we're talking minutes or hours not days or weeks as in wilmington they didn't think this was a close case there is no reason to to presume that there was prejudiced here now also there's not prejudice in this case because the people's case was strong and defend its case this week we do we're not saying that the evidence the closeness of the evidence is not a consideration it's certainly yes it's right there in the times we asked whether the evidence was so closely balanced that the error a low likely to the scales of justice against the defendant in this case it was not the state did present the consistent credible testimony of three police officers all of whom importantly the entirety of the events at issue here and that was not the case with defendants robbery with a and all of these witnesses testify consistently that they went to defendant's parents house to try to serve a custody order that they made contact with the defendant who became angry at them shouted at them refused to take the order said it wasn't a search warrant started cursing and popes one of the officers in the shoulder at which point the officer sad that he was under arrest for battery and went to grab his arm and the definit was this it and continued to resist as that officer and another officer tried to get his arms behind his back and restrain physical resistance law that it offended is not justified in resisting even an unlawful arrest that's seven twenty i'll see outside backslash seven vashti so much of defendants evidence suggesting that the police acted  reasonably that they acted even stupidly that the police shouldn't have been arresting him that doesn't matter because he's not justified in using physical force to resist even an unlawful  evidence is inconsistent it's biased and it is not corroborated first of all definitive presented three witnesses to corroborate his own account none of them was present for the entirety of being was already engaged in conversation with the police and he left in the middle of that encounter to get his shoes his family friend angela decker bring also last to get his sweat shirt and shoes so none of them were able to fully corroborate remain calm and reasoned with the officers because he believed people deserved percent but his own witnesses testified that he was swearing that he was loud that he was frustrated that he was stern jury this encounter  opened savvy defendants brother testified the deputy mcgrath was the main aggressor and the other way other officers didn't say or do much the defendant said it was deputy moore who was swearing and making threats from the beginning of the encounter but not all three of you none of his witnesses testified to that version of events now defendant talks a lot about what the police officers can't remember his witnesses can't remember these very dramatic events and of course it was for the jury to decide back that you really didn't decide that the jury believed that the state's witnesses it did not believe what defendant presented and that was because those witnesses were not consistent with one another similarly defendant did not testify to a seemingly key event that two of his witnesses said they observed those witnesses again his brother and his family friend testified that defendant after being accused of battery threw his hands up and said i'm cool i'm cool but defendant didn't testify that defendant testified that he was accused of battery and the police immediately grabbed him and that's when they swung him around so i'm going to rout it almost hit his head against the side of the house didn't mention the hand didn't mention i'm areas here that there were general instructions given rather than particular instructions to individual jurors you know in looking at whether or not there's procedures in a four three one carries his then analysis something that they focus on and that case or trying to think of another rule for thirty one case belknap that was another bill for thirty one k s and their ticket court result that case based on solely on the closeness of the happens but i don't think there is a precedent for the court is look at this determining if the evidence is closely balanced but also in determining whether the error alone likely impact the verdict that's what we would suggest that you think times and she'll rule i don't think that that would require overruling your honour's just want to address what i think is the real difference between what we're arguing with the state is arguing is whether there's this logical link between the air and the jury so terminations guilt and if there is no logical link it's hard to understand what the purpose of room for thirty one b is the burden of proof is clearly relevant to a jury's determination field and credibility contest and what does work for thirty b mean how could how could a record ever show that the judge that a juror was actually bias short of interviewing that juror you know in this case that you're just very asked a question they asked about the legal theory that the deputies weren't supposed to be there and the court instructed while you have the law that's what you're going to look at in determining credibility here i mean if it was the death you know it's a little bits of the last question they asked opposing counsel why doesn't it make sense when you're trying to determine you know produce and everybody again agrees that you have to show just look at asking if a juror accepts and understands you're not just asking the language you're giving the jurors an opportunity to ask questions you're also if the parties and the quarter able to see the jury's face there's many ways to say yes or no a juror can say sure i understand and that's not really an understanding and it gives the parties an opportunity to ask more questions it gives the court an opportunity to ask more questions so it's not simply just can you say yes to this ok you're you're on the jury why dear is an opportunity for the parties to get assurance and the court to get an assurance that the jury is impartial and that it's a fair process and so i think that is look that's my understanding  thompson in wilmington said a court has to ask both it's not just a technical requirement and so in so far as that's looking at the context of the air i believe that's what the court  and so yes we don't agree that there are these degrees of their air if the core to fail fails to ask both accept and understand there's a violation and that's tied to the jury's terminations of guilt because those four principles were described as basic guarantees that god is not the core of particular prejudices and biases and it's also pointed out that in their journey they're also had the general instructions about the principle that the court found that that wasn't and it is difficult to assess whether or not the jurors were impacted by not specifically being asked the question with all those competing interest when you look at whether the defendant was prejudice d can't you know can't you look look to see whether or not they were at least instructed you know not completely not instruct i under i understand your point i know this is hitting the nail on the head again but i think it's important i understand your point as to why it's your i don't think the state disagrees here they're just saying it's a it's a plain error case you have to look at prejudice it's a difficult context to try to figure out prejudice can we not look at the fact that we put it that way a little bit different take in we not look at the fact that the questions were generally asked in this case we're asking the court to apply its standard inherent and that clear error in a closely balance case must be viewed in context if it threatens to tip the scales against the defendant then it is actually presidential and that's you know the states that are asking this court to presume prejudice we're not it's not playing with words it's actually prejudicial because the threat is so severe that it actually threatens to tip the scales against the defendant and that's because there's error and the evidence was so close that the error threatened sure if i'm understanding but i believe i think it's because looking at the air itself great work i guess we're describing there differently because i think it's a much more egregious error than the state is arguing it's not this minor technical  it's really the failure of the opportunity for the parties to assess whether the issuers are impartial and whether they really understand the significance of these principles and that that would be the context  and i think also you know we didn't the states and we abandoned our assertion that this should be second prong we acknowledged it in the brief because there still remains disagreement among some justices about whether or not it should be second prong and so this is opportunity for clarification of this court wants but we have clearly asked this court to apply its precedent of the first prong to this particular violation and i just want to point out in the states going over the facts i think the state was very selective the fact that two of the witnesses defense witnesses weren't there for the first minutes of the defendant's discussion with the deputies is that's a quantitative analysis a qualit require even numbers of witnesses to testify and nailer you had two police officers and one defendant and also in l a you had a defendant who didn't recall every single exact detail that goes to the jury that is for the jury to determine  fact that the deputies were escalating is important it's important to an account that the police were physically hurting the defendant and escalating an encounter it's not irrelevant the defendant did not say that he resisted in a legal arrest he said that the police roughed him up that he didn't resist at all and that he did nothing to be arrested those are two different counts and as to how the witnesses whatever know that the defendant blacked out i'm really not sure that's his experience of being cold and dragged along the gravel and i think as we said earlier you know you have different witnesses testifying to different things they didn't get together in line their stories up they actually testified to what they experience and that's what you expect in a case where you do make we didn't present it as an alternative argument we laid it out because it was it was a part of the majority's i'm sorry yeah the majority's opinion they wanted clarification on it and so we're just acknowledging that there's still disagreement but we're asking this court to apply the first ball of the