instruction and then may possibly have time permits touch on some of the prosecutorial misconduct legal regine arguments two and four when the trial court to night mr jefferson's request for self defense instruction in this case it took away one of the most important issues in this case out of the hands of the jury the law is clear that there are only need be slight evidence to support the self defense and structure however in this case there was substantial evidence indeed the question was presented by both sides of the case first looking just at the state's evidence marshall the victim testified to two different versions of the offense during direct examination she says that she's in a verbal dispute with mr timson and then all of a sudden he picks up a bat and starts to hit her with that bat straight in parenting arms then on cross examination the defense counsel hits or to admit she talks about a different series where she says she actually got a fork and was trying to attack mr jimerson with that fork and defense counsel asked her to specific questions so you are the one that initiated physicality in this case she says yes and he also says so mr jefferson was defending himself is that right she says yes the law is clear indeed in every single case cited both the state in the defense here that there are only need be some evidence it can either be from the state's case or from the defendant's case and when there is some evidence of self defense then the judge should give that instructions to the jury so first marshals testimony in and of itself the state's case presented this question of self defense and that was even enough to give the instructions to the jury of course that wasn't the only testimony in this case mr jimerson also testified and he actually provided  testimony that has two different ways that the jury could have viewed this evidence so specifically his testimony was when marshall came after him with the four he could not just stand there so it was a bat nearby he picked up the bat he put it in the air he says look you stop it or  you and then a struggle ensued over that bat and marshall grabbed on to the back they struggled over it until ultimately she fell and then he ended up leaving the apartment first this provides even more support for self defense if the jury believes that mr jefferson committed the act described by marshall it's further testimony that when whatever actions he took he did the as he did not believe he could just stand there of course mr jimerson did deny hitting marshall a claimed he said there was only the struggle but that testimony also still showed a different theory of self defense this was his complete defense his meaningful defense he says i didn't hit her as she claimed but i didn't try to act in self defense i didn't pick up this bat i didn't get in the struggle with her and as defense counsel argued when requesting a self defense instruction the jury could have found from that evidence that maybe marshall received her injuries during that struggle and then that was the that was also then a different version at that point and they get engaged in the struggle and it's so much of a struggle that she ends up falling down to the ground she absently says that's when he let her go he wouldn't let go of the bat she fell to the ground i think the jury could make a reasonable inference from that that maybe she was question we have events was she was she claimed she was hit with a bat and no question that he denies hitting or with the bat but also attempts to raise self defense w case we've cited people the everett it's an illinois supreme court case that says a defendant may completely not a defendant may receive a self defense instruction even when it's completely inconsistent with his own testimony of course the state has said that that was a case of the defendant instruction but when you pull the deny force you can't get them instruction but we would argue that those cases are incorrectly decided again well first of all for even considering whether they were incorrectly decided they all were premised on the fact that there was no evidence of self defense presented at all they all said he had to admit to using force because there was also no evidence in the state's case or other evidence presented by the defense but also their logic was based on two fundament on one fundamental principle is that when they say he's undermining the element b two elements that he both subjectively and reasonably believe that force is necessary and so if that's true that would be the same instance where the defendant who claims force is only accidental if he says i didn't mean to hit someone like the defendant didn't ever it but it was only accidental it also tends to weigh against both the reasonable and subjective belief that that that he believes force is necessary but the illinois supreme court lying on a centuries old president says that's ok you get the right  inconsistent defenses the jury can pick and choose you know what it believes if there's some evidence presented that's it and i think recently i mean i think that it's clear ultimately that goes to the weight of the defense when the jury is considering the evidence they can sit down and say ok he used denying that he actually took that for us i wonder if he doesn't mean i wonder if that means he didn't because and we believe force is necessary and therefore there's no self defense but it should not be something that precludes expression and that's what think this case is even more compelling because marshall's testimony on cross examination did present evidence of self defense as well and again the one and only reason why the trial court did deny this instruction and actually said i'm going to go ahead and give this is instruction presumably that implies that it found there was some evidence to support that then if when the state said below you can't do that because he denied the instruction the court said ok i want the record be crystal clear that's the reason why i'm denying it but where the issue was truly simple there was some evidence presented of self defense the trial for it should have given that instruction and indeed since that this was the critical issue in this case presented by both sides it was crucial and that's why mr generous and was prejudiced for not receiving th comes in but again here you base that ruling on what we would argue is an incorrect understanding of the law so therefore that shows that it was an abuse of discretion and also as this court is recently held i very limited in that regard weighing the evidence determining if it was credible that was for the jury so  where self defense was truly presented in by both parties in this case and were generous and did have the great she presented a complete theory of defense he had the right to have the jury say he had the right to explain to the jury it's not true what she happened he doesn't have to admit to committing the act she says he just has to provide a theory of self defense and i would particularly note one final point on this part when the jury was given instructions on finding aggravated in the message battery in this case instruction set whether mr jimerson knowingly by any means caused injuries to to his martial so specifically sense that the injury did not need to find that he hit her with a bat as ms marshall claimed he should have been entitled to present his theory obvious and i think i do have time i will touch briefly on three of the points you raised in arguments two and four of the brief where the trial court took the central issue in this case out of the hands of the jury  the issue then became a pure credibility contest it was a he said she said case the jury was to determine to believe marshall when she said that generous and hit her with a bat or to believe generous and when he said he did not in that instance the prosecutor then took that hand largely out of the decision of the jury or took that decision marred largely out of the hands of the jury by engaging in several improper tactics which specifically said that the case had already been decided once the judge denied the self defense instruction and that both she and officer cookson the lead investigator in this case believed marshall first as we've addressed in argument two of the brief the prosecutor told the jury that despite everything they had heard about self defense at this trial generous and also really could not get that instruction because he had not been able to show that marshall did anything that justified his use of force in fact as we've already discussed today or as i've already discussed the judge had denied the instruction solely because it believed that generous and did not actually present self defense in this case it even said i want to be the be crystal clear i'm not giving this instruction because jimerson tonight force so when the prosecutor said he lost the chance to have the instruction because he did not get marshall to admit anything that would justify a force she deliberately misrepresented represented the fact  ary cases are uniformly clear that kind of like this will not be tolerated here at prejudice mr jimerson in several ways first of all by reminding the jury of how much jimerson had fought for this defense and then alternately saying he lost it on examination it implied that jimerson is testimony which came after his defense attorney cross examined marshall was this last minute hail mary ok i can't raise self defense so i may as well deny committing this crime entirely in a credibility case that was greatly prejudicial at the same time it bolstered ms marshall's testimony because there was this inconsistency between her testimony under rex and redirect versus cross examination she says it on president a nation i acted first and then in redirect she says generous and acted first so when the prosecutor is telling the jury defense counsel a lot degeneration lost this instruction because his defense attorney could not get marshall to admit to anything on cross examination she unfairly bolstered marshall's testimony when that was a key issue to be resolved by the jury and perhaps most egregiously the prosecutor told him that the way the prosecutor framed this argument saying the marshal could not get the instruction strongly implied that the judge made that decision the jury was certainly where that legal decisions were made by the judge the judge even told the jury i will instruct you on the law so when the prosecutor told the jury that marshall could not get the instruction it implied that the judge denied that instruction certainly learning that the judge should deny the defense the  going after certainly implied to the jury that generation must be guilty his defense failed the judge doesn't believe and all of these things made the dream we're likely to accept the state's case in briefly this issue of bolstering the stain of this case has already been decided basically was further in was further advanced when the prosecutor told the jury that both she and the investigating police officer believed marshall first string generous and cross examination after he had said he did not  marshall with the bat the prosecutor said to him i believe you did hit her with a bat mr summers and prosecutors are not permitted to give their opinion on an ultimate issue in the case before the jury the jury that these cases recognize that the prosecutor holds a special relationship with the jury she's an agent of the people they take what she says is true so whenever she reveals her opinion it's something that's huge is very prejudicial copiously here this was an instance where the prosecutor is merely saying in closing argument you know what i believe the evidence should show that marcia was guilty i believe you should prove that marshalled was telling the truth i believe you should believe her this was something that was really very remarkable and left a good impression on the jury she directly challenge mr generous and with her opinion in that regard that was  improper and it further upset the credibility decision to be made by the jury and then finally if all that wasn't enough if it wasn't enough to save the case or even decided basically by the denial the self defense instruction that wasn't enough to get her opinion she also put officer questions opinion on marshall's credibility and probably for the jury specifically that occurred when officer close and says when he arrived at the scene him serve marshall's injuries the prosecutor says to him in that time and where those injuries consistent with what you learned happened in this investigation he says yes police officers or any lay witnesses are not permitted to give their opinion on an alternate issue in the case unless the state proves that they are in a better position than the jury to reach that opinion here the state did not present officer cookson as an expert and the jury was also given photographs of the injuries on marshall's arms so therefore they could some was not shown to be in a better position than the jury to determine if they were consistent with her a count what are you suggesting was the ultimate issue the officer testified to i think that it was because it bolstered her credibility he's saying her injuries were but were consistent with what occurred and so i'm saying that that would have been prejudicial by saying telling the jury that the officer found her injuries consistent with that was a decision for the jury to make and it became particularly prejudicial in the manner in which the predicate the prosecutor relied on that in closing personal summation she says you know how you believe marshall she says marshall told you what happened and she's corroborated she's corroborated by officer cookson who says her injuries were consistent with what occurred then after defense counsel gets up and goes pretty great think about the fact that he doesn't think her injuries were consistent he says cuts are consistent with being struck by a bat the prosecutor then says i know defense counsel told you that but you know what he's not a medical doctor he's not an expert in domestic violence officer cookson is and he told you they were consistent so this was an issue a critical issue in th case and it greatly affected how the jury would view this evidence if the jury did not find her injuries were consistent in that of course affects her credibility so by the prosecutor both improperly eliciting this opinion when officer could say was not shown to be an expert and where the and it's a nice using any worse are not affected or overruled by the supreme court's decision in everett they focus on the self defense element that requires that the defendant actually subjective so he still denied that he used any force and he was saying that he just held the bag she took it wrestled with it and then he let go so there's no force used there's there's no end to it is his testimony that what was i supposed to do that is not enough to say that there was some subjective belief in the use of the force applied because he didn't use any force he repeatedly said i didn't use any pointers all counsel is an expert pretty clear that what we really need to focus on is whether or not there is sufficient amount of evidence regarding self defense instruction and his counsel correct that it only has to be a minimal amount and in this situation with the struggle over the back in addition to the testimony from the alleged victim wasn't there enough  intentionally using force and claimed the force was accidental it was a pure accident case it was unlike the cases in robinson which still were in every described it sided with a group where you've got accident plus self defense so the key is what is so are we back to there is insufficient evidence of self defense so i'm sorry to hear you're saying that everyone supports the state because it was allegedly accidental so there really is no allegation there's no one taking the position that there was sufficient evidence of self defense exactly right yes in everett the defendant only said that the  the use of force because he said i it was accidental i was not acting intentional and here we have a situation where the defendant is saying she's coming at me with a poor i pick up a bat and we struggle with that back after she drops the fork and we have the victim saying at least at one point i started it i was coming at him with a fork and he was defending himself he she did say he was years were one of the elements of the male is his subjective belief so he has to say i believe or provide testimony that shows that he reasonably reasonably believe that his use of force was necessary and he says i am the only source is there an inference to be drawn i mean you say that she wasn't talking about it in legal terms i take it you're not taking the position that he has to state it in legal terms as far as this  testimony has no reason or inference if someone says she has a fork and she's coming at me and i pick up a bat and say you know stop it or i'm going to pluck you is there a reasonable inference to be drawn from that that he's preparing to defend himself from the person who's coming at him preparing to but he said that he didn't actually use any force picking up a weapon and using force different things different things so your position is that he has to actually at least attempt to strike her with the bat before he can say he's defending himself he said i never touched her i never did anything to her i don't use any force how does the fact that you have the his testimony that he picked up the bag he's holding it up and he's basically warning her and then she grabs the bat so the fact that she grabs the bag and he does not swing the bat at her you're saying that's still not self defense because he didn't get a chance to swing the bat at her he didn't use any force he was just holding the bat is that you can say that i did anything or took a small struggling over the bat with her and you know trying to maintain control over it is that force no buy in itself and also she was not injured by that if as a result of that struggle will wasn't according to his testimony wasn't the nature of her injury a result of him struggling over the back him that ingo allowing her to india with the force of holding the baton in following no your honor he didn't testify that she was injured in that struggle that was sorted by counsel on appeal in fact he said i don't know how she got injured it was probably so what he claimed that he didn't know how she got it he didn't offer any testimony as to her falling abby was a struggle with the back he did say that she wrestled with the bat i got tired of it and i let go of the bad she felt that standards that apply and we look at it course the court looks at to noble whether or not there is evidence to support it and then the decision is is an abuse of discretion standard that applies how did how  in the victim's injuries she was not posing any threat harm that so we would argue that that's another element that there is not some evidence of that element and then that's another reason that instruct it's reasonable to conclude that the person is no longer a threat it would be a stronger case if there was a greater time lapse in between the dropping of the four wrestling with the bat but that's something that maybe would bleed into the abuse of discretion how the how the trial court used that evidence but this court of course the case does raise the issue of what is the standard and whether the self defense instructions were properly refused but of course the state would point out any error would be harmless because there's no reasonable probability that the jury would have reached a different result on the evidence that was presented even  self defense instructions were given and for the same reasons that the state is arguing that there's there's not some evidence to support even giving the self defense attractions but also that the most the defendant and the arms one of the injuries was an open sore so the evidence show that he beat her with a bat in response to her waving a fork at which would be excessive and disproportionate which would negate self defense they were also other elements that the jury would rely on in rejecting his self defense argument if they were in negated that would have negated self defense and that was  did not act in self defense and also the evidence that he had a he pleaded guilty to a prior domestic battery against the same victim and that was properly admitted so all those things even  established ineffective assistance or flair those are issues too and poor and has to shoot for the things that the prosecutor did it would have been better if the prosecutor had not asked her had not answered defendants question what do you think by saying i think you beat her with a baseball bat and it also would have been better if the prosecutor and elicited testimony about whether or not the witnesses were  rebuttal the first thing i just i have a few quotes will take me just a second to read but it does address the cases cited by the state of the state has said that it amounts to no evidence when the defendant demands committing the act charged by the state in every single steves evidence raises the issue involving the alleged offense the defendant bears the burden hawkins where the accused tonight firing the gun and where there is no testimony from the defendant's witnesses or the state's witnesses which could be the basis for giving instruction he cannot have the instruction and finally state's case it shows clearly that there was some evidence in this case and even the state's evidence alone enough to give that instruction and in everett it is true that the court alternately did not they found that there was not sufficient evidence of self defense presented but in that case the defendant testified specifically he said the victim never touched him and never threatened him the defendant also shot the victim as he was running away from the bandit so those two facts in addition with the fact the defendant only claimed it was an accident amounted to self defense but crucially the entire issue of the ultimate holding of the court was the mere fact that he denied committing the offense itself was not enough to the night instruction and that's the end part of it in this case because here generous and definitely did say force was necessary and he was all of whatever actions the jury found he did take were still in the midst of a struggle that jimerson said that marshall caused an attack marshall  i guess it's very clear if someone's coming after you with a fork and you've got a back it's kind of logical i guess a simple analogy would be if someone's got a knife and you've got a gun and you're going to pick up a knife from the gun and print them with it you want to when you do feel threatened it's really important  here although there were injuries this wasn't an extensive series of injuries inflicted he never did hit her anywhere except her forearms as soon as she fell down to the ground or the threat was eliminated he stopped he was out of the house moreover his statements that he made after the offense first of all not telling the police i'm very generous and go ahead and arrest me that's not surprising because marshall told him she was going to call the police his second statements that he made in the car those definitely showed he was angry at marshall he says he shouldn't next time he'll do this next time hoping that that's just as easily explained by someone who's angry over the fact that someone else came after him first and he's the one getting in trouble for that next time i walk away  could be that could be what he meant by that or alternatively again he did dispute making those statements so i also believe this all goes to the weight of the evidence that was for the jury to say and here we believe that they could have found  prosecutor should not have done that the prosecutor should not have done some of the actually did in this case when you look at all of that and you consider that this was a credibility case and that all of these areas which hurt credibility that doesn't out of pain here and in the cases that we've cited where for example there being prosecutorial misconduct and they found plain error it's not just whether the prosecutorial is was extensive but it's whether it's harmful and here since this was a credibility case and since there was so much evidence designed to affect credibility it did it could have affected the year and it could have affected the outcome of this case so for those reasons very briefly we believe that the trial court took the central issue out of the jury's hands when tonight the self instruction then from that point when the issue turned into a credibility case the prosecutors largely took that decision out of the hands through various forms of misconduct so for those reasons and the additional reason set forth in the brief we would ask this