i'll be arguing issues one two three in the order written in the brig for issue four i'll be standing on the arguments made in this case concerns the product court's arbitrary and unreasonable denial of the defendant's request for counsel abides by the continuing waiver rule which states that a competent waiver of counsel by a defendant carries forwards to all subsequent proceedings unless the defendant later request counsel or other circumstances suggest that the waiver is limited mr smith's request away revoked waiver and when the trial began mr matthew we know after the fact that ultimately it was three months of between march twenty sixth two thousand fourteen and when the case was set to over two weeks later and that period of time should be enough for counsel to been appointed and getting familiar with the case especially because the talking about three months really here we're talking about whatever that trial setting was at the time of the march twenty sixth request counsel so can you can you be any more certain about when that trial setting  decided to revoke his waiver and in palmer this court said you recommended to set a deadline and it suggestion was a few weeks before trial so this is already longer than that period was set two and a half weeks and trial even a four set that next week that would be over three weeks before trial began the state argues that january sixth twenty fourteen was a deadline set by the court this however was a motion deadline and not specifically for the revocation of waiver of counsel additionally the court heard multiple motions passed that day so for the court to just not rule on this particular most requests would be arbitrary and capricious additionally the trial court's warning when mr smith revoked his counsel was that he would not be a change of mind on the day of trial so effectively the court didn't set a deadline except don't do it on the day of the trial and the court's reasoning when mr smith when the court denied mr smith's waiver revocation waiver his reasoning was not that it was a delay his reasoning was that waiver of attorney was made on july first twenty tina was still a factor for the poor was willing to substitute private counsel during this period of time which shows that it wasn't the fact that delay from south with tuition was the issue it was the fact that the court didn't want to point you counsel with this indigent defense now regarding the gaming of the system mr smith revoked his counsel on july first shortly after the preliminary hearing and he did not substitute and dismissed multiple attorneys during this period of time and he didn't oppose the record doesn't show that he opposed the reappointment of the public defender's office mr smith's complaint a preliminary hearing preliminary hearing was the manner in which his counsel cross examined with us now mr smith after waiving his counsel represented himself as best as he could given his lack of legal education and many of the issues you ra on appeal are because he was able to resolve those errors following the suppression hearing is when mr smith realize he was not equipped to represent himself the motion to suppress was the first time he ever cross examine the witness and after the motion to suppress he told the court i don't know exactly what i'm doing and after the motion for standby counsel he says that the case involves issues of prosecutorial misconduct that he wanted to raise but he didn't  now the motions to suppress was a key point in this trial and they fundamentally change the trial strategy while mr smith may have felt he was able to represent himself before that motion to suppress the decision on the motion to suppress change that posture of the trial to which mr smith may have felt that he can no longer represent himself mr smith wasn't trying to game the system he was trying to do what was best to advocate for his right misunderstood to continue a role and applied only the first part of the rule the entire rule is that a waiver of counsel carries forward unless the defendant later waves counsel or revoke his waiver of counsel here mr with regards to the second issue the trial court abuses the discretion when to determine that mr smith would be required to wear a leg shackles during a jury trial and the state argues that this was harmless error because he wasn't in the presence of the  initially the trial court considered two factors he considered his temperament based on what was known of the court and the security officers and his criminal history the court didn't go into detail of what his criminal history was but the temperament and the temperament factor the security of officers told the court that they had presented that you have presented no problem and the record doesn't show that mr smith ever had a zealously representative self but he never crossed the line where he was disrespectful to the court so that factor actually favors not restraining mr smith with regards to his criminal history he does so for the facts of this case i do believe so your honor mr smith went preceded by stipulated bench trial to preserve that air it was he wanted to go to a jury trial the state's in his he was willing to he wanted to have a jury trial but based on him having leg restraints it would not have resulted in him having a fair trial this is especially the case because mr smith was representing himself pro se  unlike other attorney other defendants he didn't have an attorney to stand and represent mr smith what i've been responsible and what all of these cases focus on is the presumption of innocence and by the court ordering that he that mr smith would be shackled mr smith was not going to get that presumption in make certain findings a set of factors in those cases the court generally applies the harmless error analysis because there are times when a defendant goes to trial and the jury never knows defendant you know make a claim on i would have gone to trial you know if not for you know being sure there's no case law saying that a defendant has to go through the t preserve that argue the our case law state that it's the presumption of innocence is the fact that and that's why even bench trial that that that presumption is preserved in a bench trial when a defendant waived his right to a jury trial he still has that that right to not be shackled without a proper  so the the defendant has gone through the bench trial in that circumstance here you don't have the jury trial you don't have a bench trial defendant is saying i would have gone to jury trial but for the judge's ruling of zero in regards to the  shackles and seem like it's there's a case that you know support his ability to preserve that on your own and i don't know i'm not i'm not quite getting my head wrapped around it maybe i hear more of the argument i would just like to add that in a bench trial there prejudice would have to come from the judge if if we're talking about prejudice from a jury  in both cases the judge is finding the defendant guilty just the manner in which the evidence is presented is what's different are true are you saying that  here a new hearing should have been granted because that evidence was not available to mr smith before the before the suppression and the trial court does not take a position on whether it was newly discovered however it rules on what that video is a fact which is the facts the impeachment of officers top officers talk testimony was a key piece of the decision the evidence and the complete record would not be before this court without that a new suppression mr smith was denied a fair trial he was not allowed to present newly discovered evidence and or as that is a much more straightforward analysis with regard to the first target in my made by defense with the part of the question of this waiver counsel this is an example of where the defendant did he was entitled under the constitution to do which is t yourself and to suffer both the benefits and the perils that that choice entails it's certainly created a complicated situation for the trial court as the defendant in this particular instance was very aggressive in twenty sixth the trial date was set for april twenty fourth the court also noted that there are multiple motions yet to be determined and that the defendant had stated an intent to to continue filing motions and the court did express its concerns that it was time to get this case moving along and to move forward through trial it is also my recollection of the record that the trial court expressed concern that bringing in counsel at that point in time would cause unnecessary delay in that the council would have to get up  case and certainly while it went on stated it would have been appropriate for the court have some concern in the back of its its mind about whether or not a defendant would have been satisfied with the appointment of counsel clearly in this particular instance counsel represent himself if it was successfully navigating the system he certainly was doing things differently than one might expect an experienced defense attorney to do but he was questioning witnesses he was hearing evidence he was filing multiple words used the stage the case was at the time and whether or not the court made findings about if the being timely made and whether it was being sought cost the necessary delay however it seems that it would be reasonable for the trial court also to consider the consequences of not granting that right so if one of the consequences may consider is it will cause unnecessary delay it is reasonable and rational for the tr appropriate for the trial court to take into account keeping in mind that in this particular instance a trial court had warrants the defendant that these delays were becoming unnecessary and that the case need to proceed through trial and and i believe our courts concerns were not just the length of time the case of a pending but the number of motions that were consistently out at that point in time over a dozen motions had filed mostly rehashing the same arguments over and over again and the defendant had yet to get to the more important or the more practical motion that the traffic or new he intended to file was a motion to suppress with regard to the evidence discovered through traffic stop as a simply a matter of whether or not he was denied the fundamental right the assistance of counsel you know very yes your honor however both the illinois and the u s supreme court recognize that even dealing with errors to have implications  that because that the outcome of the sentencing hearing was more or less already determined certainly the defendant might have hoped he would receive a lesser sentence and he asked the court for a lesser sentence but he had no reasonable expectation that he would receive one based on the  stipulated bench trial the fact that having since the criminal background and the fact that he had consented to that ultimate sentence you are entering into the plea agreement with the prosecutor so as a result even i in other cases that are similar to this one it might be fine to be reversible error in this particular instance it is heartless that it did not change the ultimate outcome and it does not undermine the defendant's right and it's his prior to prior charges against him all of those were discussed by the trial court however looking at a very strict analysis of milk or thirty not all of the factors were considered by the court on the record however any complaint that the at jury trial was simply waived at that point in time and in no way did the defendant attempt to preserve that at the time he chose to move into a stupid bench trial it was based on his plea agreement with the prosecutor he did not say to the court your honor i am doing this because of your ruling with regard to the restraints he didn't you know point time to he say to the court your honor i believe i cannot get a fair jury trial under these circumstances excuse me in direct conflict with some of the other comments made by the defense not just by the time line and the fact the defendant only interest into the stipulated venture out because he got a favorable plea agreement but he also stated on the record before the trial court that the reason he chose to go through  nappropriate see an appropriate time to raise that particular argument however as the court previously wired there is a fundamental difference between a bench trial where rule for thirty applies any stipulate bench trial where world for thirty and trial further there they need to have a stipulated bench trial is different than the factual considerations that are taken into account to justify rules or very many of those are dealing with the defendant's ability to no there there is no presentation of evidence in the traditional trial sense so it's a very different type of proceeding that good that is being implemented and one where the concern about the use of restraint of prior to the hearing on the motion to suppress there is some question in the record whether that is because defendant was shown the video prior to the motion to suppress it was only at a later date that he states that he was knowledge that originally it had represented there was no video and that was an inaccurate statement and the state did what it properly should have a citizen became aware of the video it made it available to the defendant the question of whether analysis of the defendant was in some way shown a portion of the video that didn't show the first several seconds of it has not been answered and i believe if my memory serves correct the state's attorney had no explanation for whether or not that you heard well how did it come out how was it  after the second time he decided to initiate a stop officer style testified that he believes he was pulling over potential do you want but once he approached the vehicle and smelled the burnt cannabis you knew there was something else going on asked for consent to search and was given that officer donovan was not immediately behind after staff the entire time after donovan testified that he came upon the scene to assist officers and that suppress which i'm not ruling on the does make a difference it does money of scott misperceiving wasn't nailed down as to when he made his observations nobody asked was this before you reached donovan's car was this after you reached on the car doesn't that make the point for the defendant that you have the video assuming that it hadn't been provided if that had been provided if it had been shown to scott during the course of his testimony of the motion to suppress hearing he could have been asked is this demo is this depicting the defendant's vehicle in the stretch that you say that it committed a traffic violation and if you said yes to that the trial court would be looking at it as well and as indicated in your brief you don't see it crossing the center on so defendant would have been deprived in that situation of asking scott that question so that would make a difference would states as there is not a simple pass to whether when to allow room revocation of the wave however the test is that the continuing waiver let's say says that it says that a broke that sentence it's usually i want to rip up counsel and during that period of time the pretrial pretrial hearing that counsel should stay revoked but if before trial without causing delaying without gam ing the system the defendant wishes to revoke that waiver then i think the continuing waiver rule says that that should provide him coun smith during that period of time and he was the court was willing to substitute private counsel the court wasn't concerned about the delay that worked out it was only concerned about the delay appointing counsel was the point of state was responsible for some of those away it took seven months for them to provide the video in question and also donovan testified that that video contained a crystal clear view of the back of officer scott's car he does and when the defendant asked about the beginning part of the video officer donovan does not acknowledge the existence of that and further he says the video is not edited anyway as far as the january six d deadline mr smith didn't even get the video when he didn't even have all the evidence the state had so this is not the motions were not finally state talks about the consequences of the this is a fundamental right to be represented by counsel and a very important right that our judicial system takes seriously this is not some minor