trial court should have kept well away from its case what i call case number one in the briefs and brandon myers attempted murder of two chicago police officers what i call case number two of the briefs is separate and the state made a conscious decision at the outset to keep these cases separately they indicted them separately there's two separate indictments there's two separate cases and then about fourteen months later the state changed its mind and filed a motion to join these cases the trial court heard in allowing that jointer and that's because the trial court misinterpreted the statutes for jointer of related prosecutions the way that that statute is written it says that two or more charges can be tried together if the offenses and the defendants could have joined in a single charge but the way the trial court looked at this statute was to basically do in or if the offenses or the defendant's since mr fleming was not charged with the offenses and case to just but looking at the plain language of the statutes those charges could not have been joined with the the charge is a case to the attempted murder charges also that five eleven deaths one of four that but trickle here is that the state made a conscious decision not to to join these at that time they did not charge mr foreman with those offenses at the outset they could've they could they had discretion to charge mr fleming with those offenses we can't go inside their minds and know why they decided not to i think there's a very strong argument that the offenses that he was charged with and case one were over when they got in the car and started to drive away i'm not asking the court to ignore that your honor i'm asking the court to put itself in the position of the trial court fourteen months later when the state has filed this motion for joint or there's a couple things that the court has to consider has to think of i mean th occurred five minutes before shot it to chicago police officers and that information comes in at the trial that's that's very difficult evidence to disregard well but it there's there were the judge gave instructions with regard started the judge himself told the jury that both of these guys were charged with all of these offenses the judge the judge told the jurors that there was a correct it seems to me i would know which they did later on  evidence they could consider against forming and what they could not see i mean here we have our own supreme court in fernandez a still clarifying what accountability law is and they're still explaining to appellate courts you know what what a what a common criminal design has so there's it's it would it's not surprising that the that the jury in this situation would be confused as to the a generic accountability instruction that it's given and a very general instruction about it has to only consider evidence that came in against mr fleming in the one case and not the other but it wasn't told what that evidence was there was never a point in the trial where the judge said jury  fleming all the evidence that came in about shooting at the police officers for mr meyers running away and the shooting at the police officers all the evidence that came in regarding the evidence technicians the forensic scientists there's a whole host of witnesses that testified in this case that had nothing to do with woman's case that he was actually charged with they went to the second case where mr meyers alone was charged with those attempted murders  and just practically speaking if we're on this if i'm on that jury i'm going to consider the most that the most dangerous crimes first the most serious ones and those are the attempted murder of the two chicago police officers who lead that taints the whole process as to mr fleming there's no way you can look at this record and say that mr clement that this jury looked at mr fleming charges alone as to him evidence that came in were going the attempted murders of the police officers with stronger well to chicago police officers testified to three that mr byers shot a gun at them while he ran away so the jury why the jury chose not to convict him of the attempted murder and just the aggravated discharge s the police officers i don't know i mean it seems like looking at all this in the hole they split the difference in a number of ways on this case we don't know but our my argument is is that we can't look at what at this case all the improper evidence that came in and say that this jury looked at fleming's charges alone other of the other evidence that came in so we don't know we can't say i mean he the jury could have found him not guilty of all the fences in case one but for all the evidence that came in with  that the jury found mr foley not guilty of the charges regarding mr thomas but only guilty of being accountable for actions of mine of meyer's as to pendleton  another another hopeful piece of evidence that came out was that during the cross examination by co defendants counsel of mr pendleton that's the only time that any evidence came out that mr fleming actually ran after thomas other than that the only evidence we have regarding his accountability and this whole situation was that he got out of the car and then got back in mr thomas simply identified him as a senior person with the red shirts get out of the car i'm sorry pendleton testified initially that he saw a person with a red shirt get out of the car and then thomas said later he saw another person with the red shirt get back in the car that's all we've got that's all the evidence the he has the opportunity to have a jury hear the actual charges against him and the evidence that actually applies to those charges as opposed to a whole host of evidence that was immaterial to us case and extremely prejudicial to its case this is to chicago police officers that his co defendants is charged with trying to kill five minutes after he was with the same person and another case where he is charged with being accountable for that same person's actions five one fourteen one eleven dash four subsection b specifically covers this incident from a quote from the statute it says such defendants may be charged in one or more counts together or separately and all of the defendants need not be the plain language of the statute demonstrates in certain circumstances not all defense will share the liability for all of the same offenses and this case all squarely in the gamut of that kind of language ok with that  defended suggest that there was this pervasive taint that would have perhaps if the jury from adequately considering the crimes that this bennett was charged with and he say it's the first remark the attempt first reamer was so overwhelming that it would have he consideration of it the jury rejected that the jury found codefendant not guilty of that charge so step back what else to the jury determined the jury determined that art and it was not guilty of the robbery of thomas so while defending his claims that the jury never gave proper consideration to his client his client's claims the jury did and found the evidence as to one of the attempt arm robbery convictions insufficient so we can demonstrate that the jury looked at all of these factors the jury did the same thing with thomas convictions this wasn't a rubber stamp this is not a general verdict this is not a question where the jury didn't know who to assign liability to they considered each and every one of the elements of the limiting instruction was given by the  to would be something along the lines of well all of this other evidence was a traditional let's cut prejudicial because it stems from one comprehensive transaction and that's the talismanic phrase comprehensive transaction this is not a unique charge by charge accounting comprehensive transaction necessarily entails a broader scope a larger understanding of all of the events that took place here but what of the other is there any evidence the question that when they use the term comprehension transaction the recently i became with that language is because cases like maze and the case that appear in people's brief demonstrate that in order to join these cases you must look at the circumstances beginning with what we call case one going all the way to completion which should be the show of identification one of the things you can repair is what evidence in in the case to him when the other case would be relevant to the that not only that we have flight from the scene together we have a vehicle stopping letting to fan it in codefendant out of the car before that vehicle carries on we have to fend and codefendant running through an alley and then separating and then we have our design attempting to hide himself under a vehicle it fifteen self novice and i believe all other police officers are looking at him furthermore we then have a identification made not just by thomas but by pendleton at that location say that is the been involved in case one obviously was the victim so it makes sense he would hide and everything else that there's nothing to do with these two well it does because that explains how it is that they came upon this defendant to suggest the case to has nothing to do with it but they didn't come upon him because  mr meyers shot at the police officers they came upon him in the in the course of the exact same transaction to suggest that you need to separate those charges mean that you would need to have all those witness present the same narrative in two separate proceedings and then say we can have testimony regarding the flight from the scene regarding the car chase and then regarding the attempt to hide underneath the vehicle again in the  fix that mr is a spoke about and that is a have to carry what why would you not have to jury because at that point we're discussing a simultaneous but separate trial and that's that would not be consistent with joint because the prejudiced argument that could have been easily resolved by just having separate yuri's him because you probably just said that you were worried about the effect of the testimony would be the same and he would have to bring him back and so efficiency and so forth would that make it potentially prejudice the defendant must demonstrate that he was prejudiced and that but for the joiner he would have been acquitted that right but at the outset it would have been the question would have been what would happen now with him for trial and we know what happened  d one of the things that that in the briefs is that there is no case that anyone found like this one with regard to a jointer of two cases where one defendant is not charged in the other case that is correct the fact that this is so rare the fact that this is an outside the norm i affected nobody's ever brought this to touch an appellate court is maybe that's one of the reasons is because of the potential prejudice and it has occurred in here you know for the reasons what happened what we know from the that appears at seven twenty five l c s five one eleven dash for if you have plain language in the statute this is not a question of statutory interpretation we have to try to clean what it is the legislature was trying to say with that statement because if we take defendants argument to its logical conclusion that would mean that we would lose the ability to charge multiple defendants in the same indictment because he would be able to consistently say ah but there's prejudice will but that's the issue not every case with every prayer that's why the rules there and his complaint is not about the rule it's about the effect here and the fact that this is never come up before why has it never come up before  or isn't part of the problem the fact that the judge at the very beginning said to the jury both of these men were charged with all of these charges of these counts which clearly is not the case there were some overlaps and there are some just from iris or some just for fleming so that bedrock principle that we assume that they did follow the instructions as given so to say that the statement made what they are trolls i p i's it seems incongruous except that there was there appears to be no point at the jury was charged properly now be argued to the defendant has posited is that there was an accountability instruction given but the accountability instruction did not include an additional limitation instruction there is no that is not an that is not something the defendant suggested below and that that is not something that he is alleged ineffective assistance before this court so there was a limiting instruction as defendant is succes it's three point zero five which says each defend nt must be considered for all of the charges for which they were charged with and evidence considered against another defendant cannot be considerate of them so that instructions given we have the proper verdict form is being given and we have  that was obviously not over born with the passions of that because the jury returned a verdict finding co defendants not guilty of the most severe charge found defended not guilty of the first charge for which he was charged with the trial which was he fell down to the ground codefendant shot once it had been said greg yourself and which point time penalty got up and ran away so if anything defendant would have been gotten it good by saying that testimony detained by officers and then identified in the shop so this is a just mere presence this is a defendant who was involved from the very beginning this is a case where there is no question as to identify cation there's no question the defend comprehensive forensic one of the better the identity of the evidence to be presented and similarities in and how how does this is there any similarities in the acts between case one case t yes because again in mason those cases set forth by the people courts are specifically help it for the purposes not just for accountability but just for the purpose of comprehensive transaction courts should consider flight from the scene of the crime maze at the  referred to by the people occurred hours later so we do have to consider the broader scope for the purposes not necessarily of argument two but for the purposes of a comprehensive transaction so the flight from the scene coupled with jumping out of  vehicle and hiding in the car with it all has to do with you don't want her case one yes but that's unnecessary consideration for case two yes because again all of it must be taken it is a comprehensive trends i think that's good that's th that's where we're trying to get it i mean that bucket what makes up a comprehensive transactions is exactly good the distinction between the parties if people are suggesting that a comprehensive transaction should not be viewed as a comprehensive transaction number one for count a comprehensive transaction this it seems like you're using the word cambria the transition but i'm trying to break it down into how it's to be determined so you can give me specifics on the similar  similarities in the acts between case one case too context as to why they were running out of a car doesn't matter if you are you talking about when they got out of the car before the police chase before the police were even involved in this there were there were two times that they jumped out of the car cross they jumped out of the car first one went one way almost the other way thomas climbing followed him pendleton says you know it was my that was following him it's so then they accomplish what they're doing with these let's call them victims and they get back in the car and then they run a red light they run a red light what bad luck for them the cops stop home you know activate their lights search almost they jump out of the car gets it jumped out at the same car it was never stopped to the officers to sources jumped out the guys just jumped out when they saw the cops close and they ran three ran away in the same direction but on different paths correct and then it's such a point in time to find it made it through the history that is essential to our understanding and it's not just people understand is essential to the conference the transaction language because they don't look at as what is the comprehensive transaction in as defense refers to it as case two conference transaction is a global term he's the term comprehensive so we look at all of these factors together looking at them in isolation becomes a charge by charge analysis which is not what the court has done they look at it and say these are the two charges is there a series of factors which link them and they don't necessarily say we can we charge one to charge two but how do we link church to back to charge one in the case is put forth by the people where they say flight from the scene or they say evidence which is sufficient to help with the identification of a defendant they don't say well if if occasion is helpful therefore it goes back they say with in terms of a global with the terms of a comprehensive transaction all of this evidence is just as time referred to is the more they came from the case law where they say factors to be considered and that's for consider the terms of joinder so it's it's a different source question was this a single comprehensive transaction and could his case be joined with the other with case one that he's charged with yes that that that is an issue for myers but it's not for mr fleming mr justice hyman you're correct this is and it's an outlier because the statement that the state screwed up in this case they chose to indict this as a separate case they chose consciously chose not to charge mr fleming with case number two with those charges then fourteen months later they change their minds and then they that they're there asking mr fleming to bear the weight of their change of hearts and that is not fair both only not fair if they can show prejudice and  the two police officers we have it and answering justice but since he's question about whether the jury was instructed properly they were given those instructions but the critical point is the jury was never told what evidence they could and could not consider they weren't told when the evidence as to case one ended and one case two began they were not told which specific evidence they could they could not consider order in which they could and in the context of this accountability case it was all is a it was a it was just all muddled mr fleming this jury did not certainly consider the charges that mr fleming was charged with and it doesn't matter that mr meyers was acquitted of the most serious charge she was still found guilty of aggravated discharge and case two and mr foreman was still convicted of two various serious charges he's sentenced to twenty two years in prison  based on being held accountable for the actions of the sco defendant in this case this is not a good precedent for how a fair jury trial should be number one the trial court should not have granted the joint a motion to begin with the judge did not properly consider the potential prejudice that would occur if he had if if you graph of the joint or in this case and then that at the very least there should have been separate juries that would have solved all the problems in this case there would have been a pertains to the charges he was actually charged with thank you in the room before we leave i just want to point out one thing i have noticed this more than once you two attorneys are not responsible but the trial attorneys that you work with in the judge the port of commitment is neck correct it reflects the attempt for mr clinton but not the armed robbery charge and i've seen it so often that it's frustrating because i think when the department of corrections