thank you your honor may i please the court counsel i'd like to skip around a little bit today in reference to my brief i'll start with argument one and why common design requires participation then i'd like to talk about why it's so important that evidence of limited admissibility as to possible intent to deliver be subject to a limiting instruction and i'd like to come back to argument one and talk about the crime that actually resulted what was proven and why it's important to prove that separate pieces of drugs insular drugs are sufficiently to modernise to try to rely on sampling only one piece as to the remainder portion of argument two that survives birds and the remainder of arguments one and three i would rest of my brain so it's important to keep in mind in this case the blake maryon ing and jerry camp were heroin addicts they lived with their hair when dealer michael turner and mr turner called all the shots he never asked for input he never asked someone else what they thought about something he simply told them what to do and in fact your camp says that michael turner would either give them small amounts of heroin to fight off their cravings if they did as they were told or he would threaten the lives of the men and their families if they were to refuse him so there is evidence that lake mary only had participated in smaller drug transactions before april th two thousand and eighteen on behalf of michael turner one o'clock in the morning they get back about five o'clock in the morning before the sun is up and within minutes of the return to the home police enter and arrest everyone now all the jury can testify is under employment agreement or under an agreement to be truthful this plea agreement the state never attempts to show that blake in any way participated in the acquisition of these drugs on april th this specific unit of drugs that this is not the same a specific intent at issue here is not whether blake intended the actual crime that result is whether he participated at all in this course of criminal conduct and it's not propensity it's not whether blake could commit crimes like this before it's not guilt by association it's not whether he had committed crimes like this before with the same people it's whether he participated in these criminal acts as we see back in kessler in the one thousand nine hundred and seventy s all the way up to people  fernando's the two thousand and fourteen illinois supreme court case we see that what actually is at issue here i want to quote from fernandez in paragraph eighteen as kessler clearly establishes section five means that where one it's another in the cleansing or commission of an offense that person is legally accountable for the conduct of the person he aids and that the word conduct encompasses any criminal acts done in furtherance of the planned and intended act transactions of the bonds but isn't it also true that some bum on occasion but a company turner on buying trips in chicago where the larger amounts of heroin were purchased yes your honor and for any of the trips where he went i don't believe it has and the reason for that is that knowledge that a crime is ongoing being present at the scene of a crime those aren't enough what matters is what again participation the older supreme court in  encouraging commission of offenses and the problem here is that the argument essentially is that blake might have been willing to participate if you had the opportunity and he might but that is a propensity argument that's this person engages in this type of crime so this they would have engaged in this crime too if they had the chance but the evidence in this case shows that the crime he's charged with not a drug conspiracy not an ongoing criminal enterprise but the possession of this specific substance that was brought home in the wee hours of the morning on april th two thousand and eighteen he never participated in any of the acts that resulted in the possession of that substance he didn't get in the car turner never told him hey blake go put gas in the car so i can make my point to in two cars go and it wouldn't matter if blake bought a different crime was going to be committed and he went along what matters is that he goes along knowing a crime will become it but here ok let me just suggest a hypothetical it's not this case turner defendant cannot be held accountable for the the crime of possession with intent of the letter your honor i believe that's accurate that the defendant would not be accountable for the crime he did not take part in only the crimes he did now i would note the what the court is describing sounds like a criminal drug conspiracy it sounds like an on going agreement that would be charged and proven as a conspiracy but people be stronger illinois supreme court one thousand nine hundred and three lays out very clearly the distinction between conspiracy and accountability and conspiracy requires proof of that ongoing agreement and that's what i believe the court is talking about every day they go and they do the same thing well reman actually people the fernandez when it's talking was a common criminal design so what the evidence of a common criminal design no your honor because also in people reprint and us as an kessler they talk about common criminal design as in the intent to participate in a specific criminal activity now you don't need to know what crime is going to ensue in kessler which fernandez refers back to the act that the that rendered the defendant liable was that he went along with the burglary now he stayed in the car he didn't participate in the burglary of the store or in the coconspirators attempt to shoot at the store owner but because he went along for the burglary he was guilty for everything that happened in the course of the burglary in print and as in i believe in jackson it was going along the act that he agrees to or participates and is going along to hurt someone and by going along to hurt someone everything that happens in the course of that criminal conduct he's liable for but in each case dealing with accountability  high to an act the defendant agreed to do or something showing that the defendant agreed to engage in this pattern of criminal behavior and the reason this is so important is that because accountability cannot be guilt by association and it cannot be guilt by propensity if you have a a group of burglars who don't really coordinate but every once in awhile they ask each other for help they'll each be accountable for the crimes they go along on but they're not accountable for the crimes of the other burglars that they're never involved in and that's a very important distinction that participation distinction and i think your honor that's why it's so important that when this evidence of other crimes comes in with this evidence where derek camp says oh yeah i've seen blake sell drugs to people before i've seen him take drugs to people for michael turner where we have the evidence coming in through the detective that blake admitted that on previous occasions he had in fact participated in drug transactions that so important that that be limited to the intent to sell drugs so under accountability you must personally possess the any requisite intent in this case they had to prove that blake had the intent to sell drugs and he was accountable for the want for the actions of one who possessed them and so for the purpose of proving that he would have had the intent to sell drugs if you had known about them absolutely those other crimes could come in but only for that limited purpose unfortunately what we have here is we have the prosecutor arguing that based on blake's activities leading up to april th of two thousand and eighteen he must be guilty for the new criminal behavior on april th two thousand and eighteen and that's really where it crosses the line and again your honor it's important to remember that he wasn't charged blake was not charged with a criminal conspiracy either a simple conspiracy or a three person drug conspiracy if he had been we might be dealing with a different case but where we are here we have the prosecutor arguing that this evidence of other crimes this evidence that jared have pled guilty to a different offense of the smaller drug transaction at some time before it before that must prove blake guilty of the charged offense his guilt for prior crimes as we see in though that plates were countable for actions he never participated in there's still the fact that he would only be liable only be responsible for the crime that results in the crime that results here is apparently the possession of any amount of heroin because johnny little the forensic scientist says she got a package of brown chunks it wasn't one chunk there were definitely different chunks or she would have said chuck but she doesn't actually remember what they looked like just that she took one sample and subjected  conclusive testing she doesn't know what she took the sample from the weight of anything that was conclusively tested for heroin just that there were a bunch of brown chunks in a package and once again we have the same problem were both jony little and prosecutors say well because they were in the same package they have to be the same substance in the state or use this on appeal but it's not true distinct samples within the same packages we see in people via their are not necessarily the same substance unless there's some evidence that they were sufficiently homogenous not just that they were brown in chunks but that they were brown chunks of a similar color and consistency or as johnny little tries to interpret her note she says i don't remember what they actually looked like but based were found in the bedroom at the home and so in looking at then i mean it's a pretty good picture you see that there are multiple chunks that there are together and they're not separate in mike little small bags within this maggie just add one bag and they're all kind of squished together and tied on the top what is there to indicate i mean they all look the same what is there to indicate that the chunks might be different well your hon pretty homogenous to me i understand and i would point out that at least based on my recollection of the exhibit we don't have a straight view of the suspected her when we get inside the packers it's an asi clear plastic bag and i'm looking at people's exhibit to now my other screen and it's in a clear bag and your honor i think the real issue here is that the jury was never asked to make that conclusion if it had been argued you can see by the exhibit that there are marginal us maybe that would be the basis for the jury's conclusion but in fact what's argued by the prosecutor is that they don't have to prove that the whole bag that everything in the bag is that substance just that there was heroin in the back and we've shown a little saying just because it's in the same bag it has to be the same substance and as we see in people be adair that's not true that we would need more testimony that it bore characteristics that made it again the same texture that it appeared to come from the same source and we simply don't have that here is that lack of evidence that's problematic again as it was in a dare and in a dare they also said that just because the item had been had comingled and begun to disintegrate prior to testing that doesn't necessarily mean it's the same substance are so in recap we have the key problem here is that blake never actually participates in the purchase of these drugs he doesn't get in the car he doesn't do anything to facilitate turner's acquisition of the drugs in question so that he can't be responsible for whatever crime result it whether it's the possession of some amount of heroin or more than fifteen grams of heroin again you're on as i would rely on my brief for the remaining  it be reduced to any amount of a controlled substance and in relation to argument three if the court finds that there could have been enough evidence to support his guilt but that the evidence here was close and given the in the arguments taking that evidence a step too far we crime charge here was the possession of the twenty one point three grams of heroin and the state advanced to separate theories to explain why a defendant was legally culpable for possession of those drugs the st being constructive possession and the nd being accountability and one aspect they kind of tied together because the nature of the agreement helps show that what defendant contended at the time that he was arrested and the same as he made the police were just completely unbelievable because both camp and the defendant admit that there was an ongoing agreement for three months prior to the raid on the house that defendant would assist turner in selling drugs and from camp testimony we have evidence that immediately upon returning to the house defendant and turner would go into turner's room and package drugs on a regular basis for sale and the defendant would give drugs to camp to sell on behalf of turner what we have here is evidence of an incredibly significant remit between the defendant and turner to sell drugs and it's kind of amusing that to hear the sentence sentences of this as somehow a nebulous in his reply brief because i mean in my short experience with the state the prosecutor's office this is one of the most copious evidence of an agreement between parties that i've ever seen because both one of the accomplices and the defendant himself both lay out the nature of this agreement they go to chicago on a regular basis to produce large amounts of heroin when they return defend goes and helps defend turner purchase that break that down into sellable amounts and then assist him in selling those amounts we have a three month course of conduct in which defendant knows that they go weekly this is defined as words weekly to chicago to purchase drugs and to then sell packages and then sell it to other people it is incredibly believe it will at least for the constructive possession element of this that the phone it wasn't aware that they were going to purchase drugs and the  selling those drugs and packaging them and therefore it's exercise control over those drugs because of the evidence that was proven at trial and what defendant's own statements were about the nature of their agreement so the notion that the trier of fact simply accepted that these drugs were only in rumor and that defendant had no knowledge that they were going to go purchase them is just simply unbelievable based on the nature of how their course of conduct happened for three months prior but even if this court rejects the notion that the trier of fact made those inferences based agrees and becomes part of a criminal conspiracy he is liable for all actions that are made in furtherance of that conspiracy and here we have an incredibly specific conspiracy and one that was going on for three months prior and an agreement that to sell drugs on a regular your honor there there is a difference because the intent requirement for a conspiracy is excuse me there's a difference between the two and in the level of proof that one has to show so well because your honor in a conspiracy want to pass to prove the nature of the agreement to commit an offense but whereas in a common design one has to prove that there was an object the offense that was to prove the underlying agreement to commit the actual offense and the underlying offense was charged so there's an additional element of the underlying charge carries a burden of proof with that that one is actually committed that an agreement by itself is criminal one when one agrees to join a conspiracy but obviously we have to prove the action of the underlying offense to prove that someone is accountable for the other person's offense is an additional crime that needs to be proven under the accountability theory that doesn't exist a conspiracy because in conspiracy the agreement itself is the criminal act that's the way that would distinguish the two and that might be a misunderstanding of the court's precedent on that but that's at least my understanding of the difference between the common design element is that that you have to prove the underlying offense that the common design aims to was was recovered i think your honor that the nature of the agreement itself and the fact that it was implausible that the fund it wasn't aware that these weekly drug purchases that were going on all for in furtherance of the agreement that this particular set of drugs wasn't the defendant had no knowledge that this is going to be purchased in further and so that is is unbelievable but even a th of that i believe your honor is that the minute that he finds onto an ongoing agreement to continue to sell drugs every purchase of drugs every criminal act that some in furtherance of that is imputed to him regardless of whether or not he has knowledge of that and i believe that that is reasonable under this court's statement and fernandez and in this court statements in the recent jackson case that i worked on that once you sign on to the agreement and the the scope of the agreement in this case is is i grant you because it's an ongoing and and vast one dollar and one dollar where there's regular purchases being made any criminal act needed for the answer that until the end of the agreement is something that's and beautiful to everyone in the common design so i wonder about the importance or is it important that there is a similarity between what has occurred previously in the criminal operation and what happened on the day the place recovered the caroline and other words it appears to follow the exact same pattern but what if instead turner had brought back argue that the agreement scope is such that it only included heroin and that therefore that action of purchasing another drug went outside the scope of that agreement and that therefore it sufficiently attenuated to the nature of the agreement itself that therefore he could be held accountable for that but i think the difficulty with that argument is that we see cases in you know multiple instances of this court is dealt with with violent crimes with robberies where people show up with guns and the defendant says i have no idea that this person had a gun and they get charged with possession and this court says well possession of that gun was meant and further rounds of whatever robbery or violent act was supposed to be committed or intimidation and i'm sorry defendant but that's just the nature of the common design rule you are accountable for any criminal act it's done in furtherance of the conspiracy and if you didn't want to be held accountable for the actions of other criminals you shouldn't of signed onto a a  criminal agreement and that's the whole purpose of the accountability rules to stop people from saying well you know i had no knowledge of that was like well the point of the rule is to disincentive wise people from agreeing to join criminal organizations and make agreements with other criminals to commit criminal you know one month and then three months pass and maybe on this occasion four months have passed since the last trip up to chicago i mean does does the regularity of what had i think that if there were evidence that this agreement was still ongoing at the time that you were saying so there's multiple months in between each of the purchases if defendant like we had in this case had said something like yeah that we had an ongoing agreement whenever he called me it might have been like one on his liability for other criminal acts done and further into that because he's still signed on to the ongoing criminal enterprise what i would say your honor is that if we didn't have a testimony if it was just a straight hypothetical i think it would then become an issue for the trier of fact they well you know these purchases weren't regular he wasn't part of this agreement because he hadn't done a drug sale for the defendant or for the other party in six months and i think the trier facts look at that and evaluate one way or the other whether or not they believed that he was part still part of the design or not at that point but i think that that example it's hard to square with this case because there's just so much evidence that this agreement was ongoing that it was regular defendant specifically said that it was done weekly and the notion that he wasn't aware that these drugs were being purchased that they are simply unbelievable but even even assuming that for the purposes of accountability it doesn't matter because he signed on to this agreement that's an it is perpetual he hasn't asked to withdraw it there's no evidence that he attempted to withdraw himself from the agreement and there's a section of the code that i can provide that discusses when someone is allowed to withdraw from or when someone withdraws from an agreement such that he is no longer accountable for the other actors within the agreement  committing criminal acts in furtherance of that agreement but there's no evidence of that at all here we have a someone who was probably going to assist and help as he had done in the past multiple times packages those drugs and that's the testimony that we have from camp about the regularity and the nature of the agreement and the operation between defendant and turn this case mr starr dina's opposing counsel speaks to the fact that they take the position that the evidence regarding the defendant's prior involvement with deliveries are picking up drugs in chicago that that should have been limited to consideration only for pro pencil and that seems to be an important part of the puzzle here because  criminal enterprise here your honor i think as i lay out in the brief i think it is impossible for you to draw the sting not used to flee but any lawyer or any lay person would bring this evidence to draw a distinction between showing the evidence for the purposes of proving in the agreed nature of the agreement and considering it for that purpose and not considering it for the defense guilt because they're tied together defendant being part of the agreement is what establishes criminal liability for the possession of the drugs in this  case and in addition to the fact that obviously we can test the idea that he didn't know that the drugs were there based on the nature of the disagreement and the course of conduct but considering those two pieces of of that piece of evidence defendant's previous actions and the existence of an agreement with camp separately from his guilt for by accountability i think it is just impossible and there's no daylight between those two concepts because the nature of the agreement is what causes defended to be criminally liable under one of the theories of state's advance don't i mean i would challenge the other side to explain where the daylight is between those two concepts because i don't see any i think it's impossible to to draw that kind of distinction if the state has no further questions about that particular element of the state's proof i'll just move on quickly to the drugs in the case which is to simply say that as your honor alluded to both the picture itself and the testimony both establish that this is one continuous unit i'd like to point out a factual error the defendant makes in saying that only one of the substance was tested there were several representative samples that were taken that were not conclusively tested but that did show presumptive positive for heroin this contrary it is found in statement the prosecutor didn't just say rely on little testimony if you look at pages twenty dollars to ninety eight dollars to ninety nine dollars of the record he specifically refers to the picture itself and says you can see the picture it's clear it's one substance as one unit and that was tested and  shown positive conclusively for heroin so the notion that the system money was somehow unclear about the nature of the drugs that were seized in question and whether that has a positive and whether or not their representative sample is i think pretty clear i think the statements this court statements as well about the nature of things found in one bag is also very straight of i believe different inside the case adler dealt with multiple pills that were in one contained bag and then some pills had disintegrated and there are different colors yes so i think that there there's a distinction because there's differences between the various elements contained in the bag and that i think fits into the the distinction that this court may want to discuss that the one container idea which is that well if there's additional evidence that shows that there's differences between substance that's something that that the court has to take into account in the trier of fact has it taken to account for whether or not there's been enough proof shown that all of the substance contains the same thing and that that can never establish plain error simply because a planner is one that's established on well settled law at the time of trial and here clearly this court has made statements that would show trial courts that that particular method of inquiring into the jurors acceptance and understanding of those principles is fine and that it would be an unfair trial courts to sabbaths that there was a clear and obvious error when the th was made the appellate court has made statements that that procedure is fine and then i'll quickly just touch on issue three in this case there's a lot of statements made here regarding the three sets of statements camps testimony the defendant's previous drug history and the officers testimony we would simply rest on the argument that we made before that all of these elements prove accountability and there can't be a distinction between the two between the accountability that defendant there is which is offense criminal liability and considering it for the other purpose and there's no difference and again i would challenge defendants kind of draw the daylight between those two concepts because i don't think that there's any way that one could consider this evidence separate from his guilt if under the accountability theory because of the previous incidents of his drug use and the nature of the agreement itself  so if the current court has no further questions we would ask that you have for ok thank you i don't see any question mr mcintyre do you have any oh yes your honor st i'd like to answer that challenge to point out that st of all with regard to conspiracy and accountability i want to go back to that quote from stronger i was referenced thing nine hundred and eighty three people be stronger this is says the start page two hundred and eleven the intent element in conspiracy and attempted and in accountability is the same the former requires an agreement and an overt act in further is a crime different from conspiracy to commit the same substantive offense and i think it's telling that the state's argument keeps going back to conspiracy what we're talking about accountability because accountability and conspiracies we've talked about are two different things and conspiracy proven agreement and accountability participation and that's i think part of where the daylight comes in and accountability cases if someone were along for the ride and claimed that they didn't know a crime were going to take place that's where knowledge of those prior offenses that's where i've been suppressants is comes in to say no you can gauge them the same kind of crime with the same people repeatedly when you've got in the car to go to chicago you knew you were going there to commit a crime therefore you can't claim the absence of criminal mind which again is what i talk about in argument three that's the daylight this is what the state's really arguing is that if it were proved that blake were awake and aware of what was going on and he tried to claim that he were in that it was innocent that he didn't have any part in it then they could bring in this evidence that he committed similar crimes in the past to rebut that claim but the evidence here which by the way is all the state's evidence says that blake was asleep at one o'clock in the morning he's woken up by somebody at the door and before the sun comes up at five o'clock in the morning michael turner and your camp come into the house and within minutes are arrested now the state argues that the jury could have simply disbelie the state's evidence that blake was asleep but the state also had juror can't testify and it speaks volumes that they never asked him about whether blake was involved in this offense was blake awake did he go with you did he know you were going to go they don't attempt to rebut the evidence that they themselves present showing that blake was not aware this offense so it very much if the burden it strains credibility and in my perception to say that the jury could simply have disregarded the state evidence when if the state had evidence to rebut it they had the opportunity to present that so again i think the daylight comes in by the distinction between the prosecutor's direct claim that blake's i would also note that juror camp repeatedly said that he assumed what was happening in michael turner's room he never said he witnessed blake mereology breaking things down now i know that's sort of a side issue but what again what we're relying on here is speculation d circumstantial evidence purely and specifically based on prior criminal activity rather than the crime with which he's charge and i agree with counsel that in a conspiracy the agreement itself is the criminal act but that is the exact distinction why accountability doesn't apply i would also say that in the conclusive testing cases they say that testing is insufficient that when something is in one container if the state proves that sufficiently homogenous in adair they say that if the state presents detailed testimony that each pill had the same type of stamp that appeared to be manufactured in the same batch then perhaps that would be enough but it's not the defendant's burden to prove they're different it's the state's burden to prove the modulus so just arguing that even though the jury was never told they needed to consider that they must have considered it and ruled correctly it does strain credibility that