honour's counsel me please the court the predominant issue of michael howard street trial was whether he was committing a felony specifically armed robbery when garrison collins was killed the evidence offered on that issue was not overwhelming however a number of errors occurred they created the risk the jury would result this case not based on the state's proof but instead by relaying evidence that either should not have been presented at this trial were in which the jury was improperly instructed in the interest of time today  severance if it appears the defendant may be prejudiced by the jointer of related prosecutions and at this point it's now fairly lackluster lall in alan i that a defendant is prejudiced when the jury learns of his prior sever it occurred it was prior big drink prayers the st day of jury trial the court was getting ready to relate to issue to tell the jury what the charges were in the case and counsel said initially he requested to not have the jury learn that howard was a convicted felon in this case to keep that out the state kind of said ok well we will just read his the we will just keep his the name of his conviction out of the jury and tell him it's something that has to sever because counsel said i want to keep the whole thing out in the alternative though we have argued that if counsel did not make a formal motion to sever that he was ineffective in doing so and raising both of those arguments  and in that regard the reason why prior convictions are kept alan is because and why severances are granted typically in this instance because it's there it's also well established law that when a jury of which the jury was not informed it was greatly prejudicial in this case where the primary issue on appeal what rob stary at trial was that whether or not howard was committing a felony when collins was shot and killed to that end there was a risk the jury would rely on the impermissible inference that since howard had committed other felonies in the past he was more than likely committing a felony again here and i would note the state did leak the prior felony to howards current charges for murder  stating in closing the evidence shows that the defendant a convicted felon who cannot have a firearm had a firearm went to that basement ran down the stairs why do you think that happened why did he go there if not as a participant in the robbery that's the state reference the prior felony murder the prior felony to the why of this crime which was the very issue before the jury the state argues that howard was not prejudiced from the denial of the motion to severance or from the fact instructors whatsoever because the name of his prior felony conviction aggravated battery was kept away from the jury they stipulated only to the mere fact of the prior conviction but that doesn't matter to courts in fact even one of the state's cases people he feels the court recognizes a stipulation to the mere fact does not eliminate the unfair prejudice to defend then as a bare announcement unavoidably embraced your speculation about the nature of the prayer crying the same body was reached in people the johnson the nd district case we cited where the court found coun all was still very prejudicial again because they jury couldn't for any number of crimes from that perhaps he committed armed robbery like he was on trial perhaps even murder again it just allowed them to speculate and it did not and so not naming the prior conviction did nothing to mitigate the prejudice you know this case and you would submit as the only tape the only real question is who holds the blame for this error in this case again our primary contention of the one to which the state agrees is this was something properly branch of the trial court and it was something tonight that the courts discretion we would say the court in that exercice honest question in that regard it did not consider any facts in this case it did not cite the law it just said quote unquote i don't want to do that  illinois supreme court has held courts must consider facts and when they base their decision on a whim or something arbitrary that is an abuse of discretion and here the law does show that you should separate charges when that it's going to allow the jury to learn of the prior conviction in the alternative if council if this court finds counseled in that you enough to formally move to sever then counsel is clearly affected in that regard the state agrees defense counsel tried to keep the whole thing from the jury there was fact possess again so counsel couldn't have hoped that he could get it you know try to get an acquittal on everything if you tried everything all if you tried all these charges and mines and numerous cords in fact all of the courts have found that when there is no strategy for all nothing defense counsel said ok oh yes and he's going to try to mitigate it at least by not naming the prior felony but yes he did he didn't press for it any further on that here to try to i mean he did make his request to the court the state says you don't have to keep pressing for something our contention is the law this was so clear that counsel should have said hey wait a minute this is something that's really principles of law as set forth an argument when i will st address the issue we raised in argument one b e which is that the jury was never told under i p i three point one three x that howard's prior conviction was only relevant to whether he committed  weapon by a felon and that the jury cannot consider that in resolving his guilt on the murder and robbery charges notably in edwards bracy and other cases courts have found prejudiced from the joinder of weapons charges even when the jury was given a limiting instruction so certainly not giving a jury instruction in this case could do nothing but increase the danger that the jury would use that conviction and properly and indeed in johnson the nd district case where counsel is not ineffective and feel in not moving to sever the court held it would include the language that says ordinarily prior convictions can only be considered as a impact to defend its credibility but in this case you can also consider for a lawful use will it may felon counsel is worried about what this might do to  it might muddy the waters was what counsel said how he might consider that howard was incredible because of this conviction but what they all feel to realize is that when the defendant is not tested and testify that entire portion is removed the jury is only heard the crucial facts which is that you can't consider this evidence for anything but unlawful use of a weapon by a felon so certainly there was no reason not to give the instruction in this case and it's absent prejudice howard so to instruction that codefendant c m gordon's conviction in this case was also not evidence against howard as we rallied and argument one see on this issue there was no real dispute that an instruction should have been given prior to see him  testifying the parties alerted the court that defense counsel intended to bring out her conviction in order to impeach or the trial court said well the flipside of that coin is that the jury may think well another jury heard these proofs and they convicted the finet maybe we should make the same conclusion here the state suggested that the way to minimize that prejudice was to offer a listening instruction that seems convictions were not evidence against howard it nobody objected to this the court seem of dispute that it should be given they simply it seems like it just kind of fell through the cracks they moved on to some other issues in that ultimately this instruction was never given certainly and people the cell in the illinois supreme court held just as the state said here evidence of the co defendants convictions are not admissible as evidence of the defendant's guilt they are only admissible as impeachment also notable is that they cited two prior illinois supreme court cases graf and baker were limiting instructions given the jury was told not to allow evidence of this finn it's called a fiction i'm sorry could have been its condition to influence their own verdict or consider at all during deliberations the instruction discussed by the parties here are confirmed at precisely illinois supreme court law i would also know in sullivan where instruction was not given when evidence of the co defendants conviction was introduced the court found that a new trial was required it was the combination of the absence of the instruction and the fact that the state mentioned the co defendants convictions and closing argument here is well the state certainly never we don't argue any sort of misconduct in the state certainly never said because seeing gordon was convicted you should find howard guilty too but the state did note several times that referred to see importance conviction they said since not a good person howard's not a good person sam had her trial she's already been convicted now she's going to prison where she belongs and now her accomplice howard is on trial even if the state did not directly say you need to find her guilty because of this it was still something brought to the jury's attention right before deliberations in this case it was the fact that the jury was reminded every before deliberation so an instruction would have was not properly instructed that had a limb it prejudicial evidence in this case it was also not told how to give proper way to admissible evidence specifically it was never told under i p i three point one when that c m gordon's prior testimony that there was no plan to rob collins that she just went to his house to prostitute herself that night was evidence that could be considered for its truth at this trial nor was the jury to look at other prior inconsistent statements made by c n n citrus or statements or detective  not sell herself for money something that was clearly not offered for the truth of the matter but for pietschmann it was in fact relevant for impeachment and the defense theory in this case hinged on two key points that there was no plea entered rob collins or at least only that seems testimony that there was no plea entered collins was something she had said in the past it was never told under i p i specifically that her prior testimony actually constituted substantive evidence  that the jury should consider as put forth to them at this trial nd without i p i three point one one counsel argument that seems inability to tell consistent stories rendered her incredible was simply argument in theory mentioned by the trial by trial counsel informing the jury under three point one when that this was actually lull would have told the jury oh this is something we should consider as well it's something that should play a important part in our deliberations  were i'll address the issues the defendant has raised in the order that she raise and st beginning with issue two regarding whether the trial court erred when it refused to deny or when it refused to sever the young lawful weapons charge from the arm robbery and murder charge defender referred to it as black letter law and annoyed that you're required to sever such charges but that's actually not the case it is a discretionary decision by the trial court it's reviewed under the abuse of discretion standard and what's important to consider in determining whether or not a defendant was prejudiced by a court's refusal to say sever this charge is the evidence that was against the defendant here the charge was never name counsel said it could have allowed the jury to speculate that he was also convicted of a murder on our property but equally could have allowed them to consider that he was convicted of unlawfully pulling a fire alarm when he was a senior in high school that's a class four felony state well kno fact the state has an interest in judicially cottony so that would be one legitimate factor that's been identified by the courts of the state and that is a legitimate reason for the court to deny it the parties did not expound on that issue and defense counsel didn't press it further likely because he didn't want to risk alienating the judge on the eve of trial as we saw in the record there were some moments where the judge did not look favorably upon being given  course the judges presume to know the law and apply it properly so it's not the judge that required to offer any further explanation other than a refusal to sever but in addition to that when we consider the fact the jury didn't know what  was and we look at the evidence it's not reasonable to believe that the jury convicted the defendant of murder and arm robbery simply because at the very end of all d the evidence presented the parties stipulate to the fact that he has in fact been convicted of a prior felony which was in which was for the limited purpose of the unlawful possession of a weapon by a felon charge the court did provide a limiting instruction generally to the jury that said the evidence that was offered for a limited purpose can only be considered for that purpose with regard to that specific charge the jury was informed of the felonies existence and they were given the jury instruction for that charge therefore the jury would have followed the instructions and only considered it for that reason in addition as counsel notice that the central issue here was whether the defendant could have been convicted of felony murder on the basis that there was a plan to rob the victim in this case and we had obviously the questionable w prior testimony her own trial was totally contrary to the testimony at this trial but what we do have is a lot of evidence that supports her present testimony most importantly the text messages that were sent back and forth from sam's phone to me  phone we know that the time stamps coincide with when sam was in the house and one of the messages that was sent from me is phone to sam's phone was he ready what else could that mean but the defendant is ready to engage in his purpose his part of the robbery the most reasonable inference for the jury to make from the evidence is that the parties formed a plan after they saw the victim at the gas station and drove over to his house the defendant stayed in the defendant had the gun which he then took into the residence and we know that branco the roommate in the basement testified that he heard the individual come running down the stairs went directly to the victim's room only paused for two seconds and then went in and then he heard something something other fucker and then the gunshot you know given this evidence is reason for the jury you infer that the defendant pulled the gun out before he went into the room and then engaged in the robbery and that there was no self defense element to this so all of the specs i mean just wrong clear is is that a harmless error argument you're making than what the case law sensually says is that the defendant's not prejudiced if the evidence is sufficient to suggest that the result would be different had that charge been severed and so the argument is the evidence supports the conviction because either way whether it was seven or not just  knowledge of that charge was insufficient to convict him of our robbery and murder when there was all this other evidence of armed robbery and murder thanks moving in and most  did object at trial to allowing the charges to be presented together he wanted them to be severed is the state's position that he didn't have to do anything further if the judge should issue his ruling in a matter of fact way it would have one one should have been given because it would have informed the jury that they could have considered sam's testimony as substantive evidence however the jury was never informed that it could limit that testimony is consideration anyway there was no instruction that testimony was purely if they were never told they could only consider her evidence for impeachment logically they also consider whatever sam's testimony included as substantive evidence you know the problem with that being for the defendant is that you know in her prior trial she testified that you know she had not or that there was no plan and that's what defendant wanted everyone to hear and they were prevented from hearing that the issue was that her testimony was not credible she testified at this trial that that wasn't the case she had testified her prior trial her to save herself from being depicted and that she was the state fronted that she was receiving a sentencing in exchange for truthful testimony  counsel repeatedly impeached her and attacked her credibility and he also did so in closing arguments and that's important consider because in in this regard he was able to refer to all the evidence that have been presented in trial he wasn't simply limited to the evidence that went towards impeach if the jury simply chose to believe her testimony this time around and not the previous time doesn't vince there was an error here here the instruction simply would have been  purpose or for the single purpose that instruction also wasn't necessary because the jury was informed by the trial court that any evidence that was offered for a limited purpose she might be more over while defense counsel d jury know that there was evidence entered for a limited purpose if they're not instructed when they were and we've just opens the evidence of his prior conviction i think the context in which it was presented to the jury informs them of how it's very limited nature there was no testimony presented for it it was simply a stipulation was admitted into evidence that there was a prior conviction and then they were given the instruction if there were a limited purpose in concert with the instruction they were given they were told any evidence offered for a limited purpose can only be considered for that purpose and then they were told they were given just an instruction for young lawful session for a weapon charge the stipulated filmy doesn't go with any other evidence so by a process of elimination the jury can only consider it for that purpose there was no instruction that says you can depict a defense of felony murder simply because he's been convicted of a prior felony that would you know that's what you would have to beg the question for moreover the admission of that instruction didn't deny the defendant a fair trial because as we stated the evidence was sufficient convict him he never challenge the fact that he shot the victim and he never challenged the fact that he was present the only challenge whether or not he was involved in a plan to rob the victim which the text messages and sam's testimony show correct but when you read the text messages the the message that goes from say from me is phone to sam's phone is the critical one we know the defendant is sitting right next to her in the vehicle sam's is in the back seat defendant is in the front seat and she  he ready and as i stated earlier the only inference that can be made from that is that he's ready to come in and that coincided with the text messages to make sure the door was unlocked so that if any could come in this isn't a situation where the defendant wan charging into the house because he might believe that sam was in trouble or was being victimized by the victim it was clearly a plan that was being executed and she double checked the door to make sure that he could come in and then i think of it the defendant also mentioned what the evidence indicated at trial that he lost his phone it was missing somewhere in the vehicle so when you consider that evidence and you consider that he ready statement the reasonable inference for the jury to make is that the defendant was aware of the plan and he acted accordingly with regard to the testimony that indicated sam had been convicted of this crime it's important to know that the jury wasn't privy to all of the evidence that was presented at her trial we don't know if mia testified in her trial about a plan that the two put hatched in order to obtain her conviction we only know that she testified at her trial and significant portions that testimony were re and she testified at this trial that she had lied in her previous trial were find herself not guilty without knowing more evidence that was presented against her it's not reasonable to consider that merely because the jury knew that she'd been convicted  it also convicted this defendant and the case law supports that it's not an automatic error if the conviction of a of an accomplice is revealed to the jury especially when the prosecutor doesn't rely solely on that prior conviction as was the case in sullivan which defense counsel cited in that case it was not as much evidence as there was in this case and throughout the closing argument the prosecutor relied heavily on the fact that they found this prior defendant guilty so you should also find his defendant guilty now here the context of the prosecutor's closing arguments was simply that this was an accountability theory and so it was reciting the facts that were elicited during this trial one of those facts including that sam had been previously convicted that the truck the trial judge did take a rather petulant tone with the defendant during that hearing however he did that with the attorneys earlier during a pretrial motion he made a reference to whether or not they wanted to dump any more motions on i mean referred to them as car manuals i think because of how the luminous they were so it appears that it's really just a pet peeve of the judge as opposed to something that he would have specifically held against the defendant moreover he did ask the defendant questions about their his claims that he had and there was a back and forth there and the court properly denied the appointment of new counsel and if there are no other questions he would ask that this court affirm the defendant's i knew i was going to forgive myself yes she responded i have a few brief points the st one is regarding the fact of the trial court said give us instruction you should only consider evidence that came in for a limited purpose in addition to the jury never being told what evidence did come in for a limited purpose the trial court immediately said after that i don't think we did that in other words the trial court gave that instruction but then said there was no in the evidence in this case so the jury had no way  the evidence given in this case was limited and was given free rein to consider all of it for substance and purposes i would also note that the state relies on judicial conny being a reason to deny this  but that only shows like that would be a further abuse of discretion courts have held that judicial committee cannot be the only or even the main factor in denying a severance motion this is because in every case there will judicial economy will be better served we were i mean no i don't think it purchased him in that church which is why we're not asking for a new trial on the law for use a weapon charge that the greater danger was the flipside of them learning about this prior conviction and how that would affect the armed robbery and felony murder charges and she got and oh sorry oh thank you i'm sorry you d answered my question oh ok yes and so and yet you that in the fact that counsel probably could have offered or something the trucker could have asked of rage about judicial economy even if howard was not worried about that or was not willing to plead guilty there could be a stipulated binge trial that could refer back to the the statement here all the evidence presented at this trial so that wasn't a good reason and i would know edwards help state does have an interest in pursuit of judicial economy but that's not enough of an interest to allow an enhanced weapon star should be tried jointly with other charges the fact that the stipulation occurred at the end of the trial also  as icing on the cake because they've heard all the evidence and now they're questioning starts the easy fallback is oh he's been convicted of this before he's been give convicted of another crime before perhaps if that makes it more likely that he did that here as  well touching upon i would say the case where you look to the overwhelming evidence that the state has sided with you see if there is other overwhelming evidence i believe the state is real and patterson and that's what they cited in their brief and that was a case where the definitive not have a joint enhanced weapons charge tried it was two counts of aggravated criminal sexual assault one against a son and one against his daughter the court said he was not prejudiced because even if the charges had not been severed it's a sexual assault case the other currents can come in as propensity evidence anyway so that's not something to make a difference and in terms of the evidence in this case the evidence was closely balanced people he said he says you look to whether the versions of events given in the case and then it's up to the jury to get to pick which one is more credible here there were these text messages but that was something for the jury to kind of make inferences from i would say he ready is not the only inference that he's ready come under let's go these kind of things and at the same time the jury was considering sanford you version of the of these events they had to know that her testimony of this trial she had something to gain the st time she ever said there was a plan she was facing one hundred and twenty years in prison except for her testimony in this case the jury was given that so there are things for the jury to weigh in resolving this evidence and prosecution is dangerous so the fact that the check in the door unlocked all of these things