may have please the court may please reserve three minutes for rebuttal sure this is a case where the judge directed a guilty verdict when the jury would otherwise have acquitted the state prosecutor james peoples on the theory that he personally shot and killed roosevelt gray they did not argue accountability and they did not request accountability instructions but when the jury said they did not have enough evidence to prove the james peoples was the shooter the court told them they could still find him guilty even if he did not pull the trigger five minutes later the jury did exactly that the trial court's decision to give the jury a new way to find  mr peoples guilty denied him his right to defend himself because the jury acquitted mr peoples of being the principal the only theory of guilt the state pursued this court should reverse his murder conviction outright your honor the jury did find him guilty of attempted murder but under mill said people vs millsap which is the illinois supreme court case governing this case the court remained it for a new trial on both charges even saying we should operate reverse yes and that's because we have an additional double jeopardy situation that wasn't present and millsap is your case law for the proposition that the jury's answer on a enhanced question does not necessarily in nothing against mr people's argument the closest case is people versus cooper from the only supreme court decided in two thousand and in cooper the state chose to prosecute the defendant only on a knowing murder charge and the jury acquitted him on that and the court said that precluded based on double jeopardy a new trial on felony murder because that was a theory the state chose not to prosecute and that's what we're dealing with here the only the only theory the state could pursue on retrial would be that he was an accomplice because they can't any longer charge him with personally discharging that firearm he has been found not guilty on that charge so the only theory they c pursue say he was found not guilty on that church even though of course he was found guilty on that charge because of an inconsistent verdict you call it a verdict on the enhanced but he's lost say that the enhancement you control the underlying offense verdict if they're you're going to read what i do know happened is that the jury submitted a verdict saying that the state did not prove that mr people's personally just charged the firearm that caused gray's death and when they said the state did not prove that and that is what the state was attempting to prove then double jeopardy would bar the state at a minimum from submitting that firearm and handsome again and the facts of this case it's true there's no case law directly on point but the facts of this case indicate that the deceit and died of a single he was shot twice but one was just a graze wound that could not have killed him the other shot was the shot that killed him and when the jury found that he did not fire that shot then he could not be the principal it is a very unique factual situation but because the jury found that he did not fire the shot that killed the dissidents and because the state chose not to prosecute mr peoples as an accomplice then there is no theory they can prosecute him on again as far as our contention that they cannot prosecute him as an accomplice in addition to people versus coles i would direct this court to cooper excuse me i would also direct this court to people versus include this supreme court said that the state cannot reprosecute quote based upon a theory of the same offense that was not previously charge and again that is very similar to what we're dealing with here where the state chose not to prosecute him as accomplice they can't do it again in a new trial and they can't bring forward that new theory in a trial after they've already had a chance to do so and chosen not to but i want to stick with the thing that you said excuse me which is because right now what you're talking about speaks to whether what would happen on the remains of what they could or could not charge and remain and you are arguing for an outright reversal yes ok and your argument is there's a legal inconsistency those are inconsistent right no your honor and that i would not say they found him guilty of being the principal on first degree murder because they only found him guilty at all after the jury after the judge excuse me told him told them they could find him guilty even if he did not pull the trigger so what essentially happened is that the jury and the jury sent out three notes and they indicated they were considering accomplice theory they even used the word accomplice they asked if they could find him guilty if you was part of a group now i agree with all that i understand what you're saying but but i'm at the point where i think justice smith talked about it as well we have a guilty verdict he was found guilty he you think he was found guilty based on the theory they were not allowed to consider accountability but he was found guilty and the reason that your primary the thrust of your going as i understand it for why that means he really was found not guilty that we should consider this an acquittal was because there was an inconsistent contrary finding on the enhance him not guilty but they found him not guilty of being the principal and along with that they can't the state cannot prosecute him under any other theory so it's not that they found him not guilty completely we're actually not dealing with inconsistent verdicts my position would be that they found him guilty as an accomplice then he was acquitted of being the principal and that he can't actually it wasn't permissible for them to find him guilty as an accompl and they can't the state can't charge them him with that again so in other words the reason there's no reason there's no opportunity to remain for a new trial the reason they would be inappropriate is because there's no theory of the state can prosecute him under the facts of the case which indicates that only one gun check killed him because of the three questions out of the eight the jury sent out three of them were specifically about accountability and because of the last one because of how quickly the jury returned a verdict after the judge told them they could find him guilty essentially as an accomplice the jury said can someone be guilty of first degree murder and not pull the trigger we are struggling with the concept of a guilty verdict but not having enough evidence to prove james peoples was the shooter that's as close have ever seen a jury no indicating that they do not think the state proved their case the judge responded dear jury the answer is yes and five minutes later they returned a verdict but is it him degree of speculation involved in incredibly small amounts if any i would say no there's no degree of speculation it would mean that this is the clearest verdict and especially when you look at what the jury did i think i think what ruled out any degree of speculation is what the jury actually did if they had if they had heard that information and five minutes later returned a verdict of guilty verdict indicating he was guilty on both murder and a personal just charge then we'd have a massive speculation problem but when five minutes later after the judge says you can find him guilty of you know if he didn't pull the trigger and then they say ok guilty but not guilty of just charging the firearm it's really not speculation at all there's no other conclusion and the state hasn't been able to any reasonable conclusion as to what could have happened in that situation so i don't know maybe answer what's her standard here so if you're just asking that we reverse the conviction and forget about whether it's outrageous share that he didn't get a fair shake here to a fair trial and i think the question we have to ask is is there a serious risk that the jury was not following the law properly that's one question but and i understand your argument with regard to that because of all the circumstances you just laid out the clearly we're struggling with this and five minutes after conclusively decide that in fact that's what the jury did you know just as house was saying or isn't there some degree of speculation what is the standard what is the log that we have to follow your honor i'm not sure i found any case that well i'm sure i have not found any case law specifically on point specifically telling the court as far as the standard of review the standard would be to know but i don't think that's specifically answering your honour's  really what are we supposed to do with this quite frankly your honor i think this i think it is in inescapable conclusion i'm not sure i apologize i think i don't think there's any case i can cite to you on this point as to exactly what the standard  is and i'll be honest if it was simply likely i don't think that would we i don't think we would be arguing for an outright reversal but in this case we're arguing for an outright reversal because it is a virtually inescapable conclusion and that's what the jury did i don't think that's  in creating this error that this court should err on the side of the defendant's right and so in this case the state initially agreed that the court should not be answering that question with a yes and agreed with defense counsel that the appropriate answer is you have received all the instructions but once the court decided maybe i should just answer the question yes the state jumped right on that train and said yes judge you should answer the question yes even post trial motions this was thoroughly litigated defense counsel pointed out that people versus notes that governs this issue in the state argued that it doesn't and notably that the state not only convince the court but the court issued a twelve page order citing a lot of cases that were not on point in the state has abandoned every one of those cases on appeal they know that that was not the correct answer and that the judge was not using the correct case law and so i think i don't i don't know that that's a direct the issue in the supplemental brief yes there are now three cases three recent cases in illinois published cases that have held that it is error for a judge to instruct the jury that reasonable doubt is for them to determine and that's what happens here all those cases two of the cases in particular people versus turman and people versus franklin of the terminus from this court franklins from the third district has held specifically in virtually the same exact facts situation that it's error for the defining this is a strange situation because illinois refuses to provide a definition of reasonable doubt and we're stuck with that so i would certainly agree that the judge is in a hard place every time this happens but what the case law has three out of the four appellate cases that have addressed this have said that it's error to say reasonable doubt is up for you to determine because it could leave the jury in a situation where they convict on a standard something less than reasonable doubt this co e probably aware but this is a similar case was recently argued in the illinois supreme court people versus downs that may decide the issue the briefing in the arguments and downs weren't exactly on point because we have an additional factual edition situation based on the specific journey no in that case but that may decide the issue there's a there's a case of failure but i think the state cited you know that is a case where the food showed answer the jury's question almost verbatim the same way the choice in this case good that it was probably that's true the failure is actually the opposite of what we have here because that defense attorney in feeling was actually arguing that he should the judge should have provided a specific definition of reasonable doubt and so that's mean he said that the answer the judge gave was tantamount to saying i'm not going to give you a definition which is pretty much what the judge did here your honor failer but it's the coaches do interpret that way you could count failer is one of the cases that says this is not a problem but certainly there are three cases that say this is a problem also mentally perhaps the supreme court will decide this issue but especially in a close case where we have here where the state is relying on three only three witnesses identified lesser people those are the same witnesses who could easily have been charged if the situation were a little bit different there's no physical evidence connecting him to it there's no confession i think in an incredibly close case like this it's our position the state didn't even prove him guilty question the question here asked by the jury is governed by the general principle that jurors are entitled to have their questions answered in fact the failure to answer a question or the giving a response which provides no answer to the particular question of why a post has been held to be prejudicial err what's important to keep that in mind in deciding whether the judge in this case  what's i believe i'm familiar with that it's the case that preceded with a judge gave the exact same answer case the fact that an abuse of discretion standard was used there does go to the people's point that an abuse of discretion standard is the appropriate one here although the defendant tries to frame the issue in terms of arguing that's the no where should apply because the answer was wrong the the issue isn't whether the trial court's answer was wrong the issue is whether the trial matter but here that's not what's at issue the question the answer to the question is right that's a legally correct answer he asked the question the jury asked the question can someone be guilty of first degree murder and not pull the trigger and his answer was yes yes and that's facts of this case that's the correct answer that's the correct answer to the question and the question the ultimate issue is whether as you're saying that was appropriate in this case based on the facts and based on the scenario now whether that's might i guess what i'm saying is we're we're again one issue that we already feel we've got an answer and i think you've got to go to the issues she raised in that this justice here raised that are more relevant yes or no at this point we've already made our mind up that they stand what's all the judge was wrong ok so move to the next step don't waste your time the next step is what happens when the cases re interested in whether the jeff the defendant can be retried on all three or only on two and whether we even consider retrying don't we just want to remain  be the case should be remanded if that's the the court's fighting which is not the people's position i understand but i i if they say i don't spend time assuming that we've already concluded assuming that that is the outcome here then the k should be remanded just for a trial on the first three murder charges there is no support and defense are they able to cite anything language in the firearm and handsome it requires that a that's offended proximately caused death by firing a firearm and that's not what the murder charges include there so even if there isn't necessarily a distinction even if you can't draw up a theory where there's you know where one is like you're saying like there's no difference between the two the fact is that the two verdicts coming back as they dead this goes back to the the law regarding inconsistent verdicts and the fact that it's a proceed to take the finding of not guilty on one verdict and assume and apply that to the other verdicts inconsistent verdicts are allowed in or annoy that's something that isn't disturbed because of the sanctity of the jury and because we don't we intentionally don't go into the jury room and attempt to determine how we came to these two how they came with these two verdicts that's again assuming that you four to come to the conclusion they've stated that they are ultimately inconsistent it's allowed for them to be inconsistent this is pretty inconsistent don't you think again as taking what you've said today that's  sensing enhancement it's not appropriate to call that which is inconsistent with the verdicts the first degree murder verdict to take those two things and just say that it's an acquittal he can be tried anyway which other people wish to proceed on so in this case we have a jury note that the last one of the eight that very specifically says we don't believe that there is sufficient evidence to change people was the shooter and five minutes later after getting what appears to be an incorrect answer from the judge on a question they find him guilty but we have we do have that statement from them and then we also have a special verdict form we have two piece of information  fairly conclusive because it's a verdict another which is a note which is maybe a little less conclusive in each of those cases the jury is saying we don't think the state proved that he personally fired the bullet that killed rose about wilson i position is that we can't say and we can't speculate even in that five minutes time for and they are talking about it's not appropriate to speculate on exactly how the jury came to that decision we can't determine how they deliberated we can't determine if they just simply decided not to sign the enhancement because of jury levity that they perceived that it would result in a greater sentence if it was some sort of compromise verdict that's right inconsistent births are allowed but we can't take one and read it to interpret the other especially to interpret the verdict that was signed by all of them that he was guilty diverse jury no that was an enhancement no not really seriously that either jury instruction doesn't say anything about being in fact one of the earlier questions in  case they couldn't make sense of why they were being asked this question and why they had the first three murders right it's a third question it's impossible to say what they what they thought of those two verdict forms they were present it's not impossible to say that they didn't think it was proven that his bullet killed both but wilson that's not hard for us to say because we have a verdict that says that karate guess and all about what they said they did not sign and they found it so that it was that proves the defendant's it was ruby had a reasonable doubt you're right they may have thought it could have happened but they didn't think it was proven and so the defendant would say how can you take that finding from the jury which is not a guess is they're finding in the record and says that and when there's no accountability theory when the only theory you charge him on for first degree murder was a principle shooter how can you possibly say that you're a found him guilty beyond a reasonable doubt being the principal shooter because even finding that even coming to that conclusion which again require speculation that's still that the result then the well we're left bikies that's on point a case that dealt with the fact there was an enhancement that said he didn't personally fire the weapon that killed that person but he was also can convicted on the principle shooter theory no i'm not what said well that's just another inconsistent verdict we the jury asked in this case what is reasonable doubt and the judge responded to reasonable doubt cannot be defined for you that is for you to determine first we note that not only did defended forfeit this huge issue by not objecting to it in separate contemporaneously or raising it it was from motion defendant acquiesced to the response at the time the question was asked and that's because the response was proper it did not provide the definition of reasonable doubt to the jury  rule is that a judge should not define reasonable doubt even if the jury requests a definition and the court here follow that role as indicator as discussed previously of the people people be failer in which the answer was nearly identical for you for the jury to determine here it's for you to determine everyone as a defendant pointed out  that's the way that that was raised in the appellate court was not identical the analysis performed came to the same conclusion that determined that responding in that matter for the jury to determine is not the definition they the answer again was nearly identical to the one here is for you to determine the quote there found that it was unquestionably correct the answer and also noted that in term in franklin  that the term collectively roy was a point of distinction for the courts and again because that issue isn't present here that's why this is clearly a non instruction  the unanswered question about which case law is closest points to this case first your honor the state just argued the proximate cause is not an element of first degree murder that perhaps it was a misstatement by counsel but of course it is and in our reply brief to page ten we cited people versus such in code which states that performing an act which causes death is quote clearly an element of first degree murder and they specifically said that apart from the proximate cause unhandsome and you still in order to be guilty as a principal you still must perform the act which causes death and mr peoples didn't the jury found that he didn't secondly the state also argued that he can be tried under the theory retried excuse me under the theory that he personally discharged the firearm that proximately caused the dissidents death that is verbatim what the jury found he did not do so it's true that it's a different verdict for but the jury has conclusively found in the state concedes they found that he did the state did not prove the james peoples quote personally discharge the firearm that proximately caused roosevelt gray's death so he cannot be retried on that theory it would violate double jeopardy even the fact that it is two different verdict forms is irrelevant lastly your honour's people versus daniels from the illinois supreme court which we also cited in our brief s in daniels that is again of course not directly on point but in daniels the defendant in the first trial was acquitted based on armed robbery the jury found a mistrial on the murder count and then the supreme court held the double jeopardy barred the state from reprosecute ing with a felony murder based on armed robbery in that sense it's similar to this case because the acquittal on the basis of the charge precluded retrial it wasn't an acquittal on the charge itself the jury in daniels never found the defendant not guilty of murder but they found him not guilty of the underlying action and which the state was intending to rely so in that sense perhaps daniels is the closest dancer in your honor's questions about whether a retrial would be permissible if the the the supreme court has said that if the jury has acquitted the defendant on the basis of the charge even if not the charge itself then he cannot be retried on that char