you please the court mr blanch raised three issues on appeal and i will be happy to answer any of your honor's questions regarding the second and third issues but my argument today will focus on branches first claim regarding the prosecutorial misconduct that occurred at the close of his blanch never denied responsibility for committing the apps that resulted in his girlfriend's dot the only issue before the jury was whether blanche was entitle to a mitigated second degree conviction but there can be no confidence that the jurors properly considered blanche a sole defense because in closing argument the state presented it as a defense of justification thus confusing the jury's understanding of the one issue it had to decide there for points that should lead this court to find the prosecutorial misconduct deprived blanche of a fair trial number one the prosecutors repeatedly misstated the law of second degree murder and in one instance went so far as to misname his defense number two the trial court exacerbated the air by overruling blanchard's objections and making its own misstatement before the jury number three proper instructions cannot be found to have shared the crucial misunderstanding that was planted in the jurors minds during closing argument and then before the air illinois supreme court and wheeler had a similar situation and there the court talked about the fact that even when certain statements are properly preserved and other misstatements are not all of them should be considered as part of the entirety of the prosecutor's closing argument because the ones that are not objected to may had contacts to the ones that were objected to and in this case that's that's certainly true where all of this all of the misstatements are essentially the same so it's really one error that this court is reviewing but in order to properly understand the extent of the misconduct and also the gravity of the prejudice this court really needs to look at all of the statements together because without doing so you don't actually you're not at the court wouldn't be considering the full gravity of how many times the jurors heard the state make the same misstatement of over and over again and certainly the number of times that it is repeated is relevant to to the misconduct and to the way that it affected the jurors so that's why the court should review all of it and and that we were quite sad that it was going to focus on the individual runs that had been actually properly preserved it still said that it was going to review all of court has followed that same thing in people versus an it cited two wheeler and said that it was going to consider both statements that were challenged and those that were not in order to view everything all of the misconduct in context of one another so in addition to the fact that i live in misstatements were made here in the sense that the prosecutors use actually misstated what it is that he was asserting ultimately by equating mr wenches incomplete defense of mitigation to a complete offensive justification and the state drastically and erroneous lee inflated mr blanch burden of proof with the state in its brief did not discuss the most egregious of these comments which was where they actually referred to him claiming self defense but with regard to be alive in other instances of justification prosecutors presented it as though what mr blanch was claiming for his defense is that he was justified in so they didn't say the definition is justification but by a clear implication they were telling the  jury that they had to find something else krasnow is actually a very helpful case here in terms of understanding why this is a misstatement because there the court found that the misstatement of law in effect distorted the burden of proof by incorrectly suggesting what the jury had to find to reach a certain verdict and the same thing occurred here but the state and the fact distorted mr blanchard's burden of proof by incorrectly suggesting to the jury that they had to find him to be justified in his actions in order to reach a second that's true your honor and certainly it was a closing argument in the fact that the jury's what was properly instructed under the pattern instructions is something that the state emphasizes in its brief but with that with regard to that the state cited three cases terry maloney and buckley and notably all of those either distinguishable or unhelpful for the state buckley is the first case that is important to talk about because they're the misconduct was very definition of recklessness but despite that actually reversed for a new trial finding that the noting that the prejudicial effect of improper argument cannot always be erased from the jurors minds by proper instruction and and so here the fact that the see that the jury was properly instructed on second degree murder should not a race should not be found to race from the jurors minds the fact that the jury or the state repeatedly argued in closing arguments that mr blanch had to be justified in order for them to find that he was entitled to the mitigated conviction of second degree murder the other case is that the state cited for the proposition that the instructions were curative  terry and maloney but in terri the court admonished the jury immediately after the objection that it would be the one to instruct the jurors on the law and then they were correctly instructed actually most of the cases that talk about why the instructions contrary misstatement of law focus on simultaneous admonishments from the court and assess whether those are curative and here there were no simultaneous admonishments from the court because the court did not sustain the objections that over ruled each of the objections that were made and then went on to make its own misstatement in front of the jury and that's when after the defense counsel objected and said that he believed the justification language was misleading the court in front of the jury said without lawful justification is contained in the murder instruction justification overruled and so he really added to the jurors misunderstanding of the fact that justification was not actually relevant to second to mr branch's defense no instruction that's correct your honor they did not but even given the fact that they did not get it they heard that in addition to hearing the prosecutors repeat this eleven different times and refer to his claim as to self defense they heard the court overruled each of the objections which the smith and fluker courts recognized as being something that sanctions the air in effect before the minds of the jury and also reinforces the prosecutor's misconduct when proper objections to misstatements of law are overruled but the court didn't just overrule them making this actual statement in front of the jury that justification was relevant at the very least confuse them even if they carefully went back and read the instructions later and so that is why top instructions should not be found to have  because both the sheer number of times that this was repeated and the fact that the trial court exacerbated the error and ultimately the fact that the state has not pointed to a case where there are no admonishments but the simple giving neville my response to that is that the state didn't point to anything in its brief that actually invited the error so it's difficult to respond because i don't know what could have invited that  but simply arguing that mr bench was entitled to a second degree conviction certainly doesn't invite the state to suggest to the jury improperly that she was cleaning his actions were justified because he was not claiming that he was claiming that he was acting under a sudden intense passion caused by a provocation and that he was entitled to a mitigated conviction and it's important to remember that justification is something is a term that the layman understands to mean that you have a reason reason for having done something but mitigation is a much more nuanced idea that really requires the jurors to be  instructed on the law and to understand it and ideally not be misled repeatedly by one of the parties as to what that means because mitigation isn't something that a layperson inherently understands to mean that it reduces somebody's culpability but doesn't justify that person's actions the turning finally to the fact that mr bench was sufficiently prejudiced here to have his verdict have been tainted the standard for they can say that with a red reasonable degree of certainty because of the closely balanced nature of the evidence here mr blanched did present evidence that was sufficient as the court found to instruct the jury on second degree murder and ultimately it was for the jury to decide they believed mr blanch whether they found him to be credible and whether the evidence that he set forth was sufficient to entitle him to a mitigated conviction as in buckley i will help four cases here because these are both cases where prosecutorial error was recognized where two distinct legal concepts were equated and in both instances the court recognized prejudice in buckley of a court found that the distinction between the two concepts their recklessness and carelessness were crucially important to the finding of criminal liability and so the court found prejudiced because the misstatement of law could only serve to confuse the important distinctions and again i want to remind this court at the second degree murder was properly instructed and it was only in closing argument al that eleven to twelve times if we count the sun self defense statement twelve times that they were told that it's essentially the same as justification or self defense and the court did not reverse but that was based on a very unique combination of five factors that the current went to great lengths to point out was a virtually nonexistent likelihood of recurring again and certainly that combination of factors didn't reoccur here and  e still talk about the fact that equating recklessness to accident in that case was of the greatest potential prejudice for all of the misstatements that they recognize because it was very likely to deny the defendant a fair trial and the reason made said that is can directly apply in this case their involuntary manslaughter was the defendant's serve the fads here the soul the fence was second degree murder their court found that it was incredibly prejudicial because the argument that was made suggested that the jury could logically eliminate consideration of the civil defense because it was not possible to characterize that defendant's actions as accidental the exact same thing applies here it would not have been possible for the jury to view mr blanchard actions as justified and thus they were essentially informed by the prosecutor by way of this argument that they could logically eliminate consideration of his whole defense because of the fact that they couldn't find his actions to be justified if there are no other questions at this time and we respectfully request that this court reversed my man for any trial and thank you hours may please a court trial and again here on appeal our primary argument is that there was no misstatement of law we have several procedural arguments as well but you don't even need to get there when you look at the fact that appear in the statute relating to provocation it does appear in the imperfect self defense portion of the year the second degree murder rape it does appear in the second degree murder statute in the un reasonable belief in self defense portion of the second degree murder statute there's two there's two defense and there it is not the prong that was involved in this case had that with through the facts of the case in detail there was no objection of those those facts were properly relayed then the state's attorney read verb eight of the first degree murder instruction and then read verbatim the second degree murder instruction no no to explain why this wasn't a second degree murder case so if you want to call it a myth gating factor excuse justification whatever justification really are two different things not in the way that the state's attorney use them if you go back to each of those times he was using those and she was using those in a in a proper lay sense that this is not second degree and again and again and again during the closing argument they referred back to the specific language of the second degree provocation instruction talking about sudden intense passion and what is and what isn't sudden tense fashion the question is was this jury confused as to what the issues in this case are it's very clear that you know even the defense attorney in his closing  very experienced a pastor and he says i guess it's up to you to figure out what intense passion is that's essentially all this case is about if you read these closing arguments you can't step away and say that this jury didn't understand this is it is an either or case this is either that you accept the state's version that this is that there is no sun intense passion or accept the defense first and it's clear in the context that that's what was happening further all there were eleven comments cited today  as you'll recall at the end of trial the defense attorney filed what you guess would be a boilerplate form motion saying the state committed process error in closing arguments and judge since she and said that's not enough tell tell me what it is so they get two months two months later he comes back and he's got five of these eleven and not all five of the eleven or objected to a trial so so clearly this is something where almost every one of these was weighed because you have to have both object trial and put in your when the when the objections that were made to references to justification were consistently over rule it's really not incumbent upon defense counsel to keep standing up and well let's remember there wasn't a single objection during the state's closing argument to anything that was said so the first six or seven times nothing is set at all it's only towards the and then at the end of rebuttal argument jumping up and saying this is this is improper again if you look at each of these these eleven instances what the state's attorney is saying is that this is not think would certainly not be in the can of a of a lay person it's most lawyers only been referred to it as the as such as justification instruction it's a self defense instruction so i don't know that i would disagree that the average person would connote  self defense and justification is the same thing and especially when you look at what what the state's attorney saying you don't get the justification of second degree murder that's the first one ok calling second degree murder in this case justification is clear what he means is this isn't the second to be murder case so calling it the justification of second degree murder that doesn't raise the first all the notion that it would raise their burden if this is a justification case they have no burden whatsoever it's burden to disprove justification if this were a self defense case it's not a self defense case their burdens only come up when it's a second degree case and they have to prove by pontus the evidence that it's either an unreasonable belief in self defense or provocation situation so this notion that we elevated the burden it is actually in congress with with what's happening here the second one is you know it's just a beside this and say well it's second degree because  again it's tied directly into second degrees not tied into and the only second degree instruction they got is the one here using the term you know provocation provocation is defined and the sudden intense passion it's very clear that the jury knew what was going on in this case the third and again those first two one objected to they were in the post trial motion and even if you believe for a second that she was swinging throwing punches really that gives you the justification to strangle somebody and then after they said fighting this is not second degree this isn't even close they get all those tie into the specific second degree language then there's another and bring it back to this mitigating factor a sudden intense passion resulting from serious provocation kind of sufficient to excite intense passion in a reasonable person how reasonable this is completely unreasonable that's why secretary does not apply with these facts again tied specifically to the language of the of the instruction  i'm breaking up with you get out of my life i gave you a question i'm justified in strangle you to death again these have to be left in context a very clear its main course told us again and again the whole argument in context if you look at this in context no eleven and some of them don't even actually contain the word justified but the bottom line is your honour's this case was not a case where the jury was mis instructed as to the law they're very clear as to what the law is  very clear that the jury was properly instructed at the end of this case there's no doubt about that even in cases where it could be said that the prosecutor misstated the law those cases can still be affirmed if the jury is properly instruct the prosecutor did not mistake the law in this case as peter properly instructed properly stated the law but that's not what they're complaining about it is it is they're claiming that the prosecution confused the jury by misstating the law of you with all due respect i have to say that it seems that the state is still continuing to obscure the issue here the state says if you want to call it mitigation if you want to call it justification the issue here is not that the prosecutors simply use the word justification it's that they believe we equated mr branch's defense to a defense of justification which is not what he was claiming and he did so very clearly one of the challenge statements is very simple there is no justification for what he did there is no second degree murder this is only one of the eleven instances where the jury was basically told you can't find second degree murder because you can't find his actions to be justified and as justice mason pointed out a layperson understands justification to mean that there's a legitimate excuse they didn't have to hear a justification and think that means self defense is being asserted here although they very likely could have found that when the prosecutor went so far as to blatantly tell them don't let him hide behind the shield of self defense the state also argues that it's very clear that the jurors knew what it is they were supposed to be deciding but there's no indication of why it's so clear that they knew that and the question for this court is whether the verdict whether we can be very certain that the verdict could not have gone the other way without these improper remarks the question is factors that prompted the court to affirm as opposed to reversing amanda is the fact that the jury had sent out a note that came the reviewing court certainty that the judge actually understood that they had to be considering recklessness because the note indicated to the reviewing court that they weren't thinking of this as accidental and that was one of five factors additionally the court had sustained all of the objections and admonished the jurors simultaneously that also didn't happen in the  adds to the prejudice in this case and i think even if he had overruled the objections that in and of itself would be sufficient notably in the buckley case the court there reversed and remanded for a new trial where the prosecutor acquitted these two defendant's burden of proof and even despite that the court found that just the fact that certain objections were overruled exacerbated the error and reinforced the prosecutor's misconduct and so same thing in smith but the smith that by overruling objections to three of the prosecutor's remarks it in effect sanctioned the error that was caused by the prosecutor's misstatements of law i think the final point so we have with here is the fact that and reversed and remanded where the misstatements actively distracted the jurors from the issues we could say that that's comparable to this is while the jurors were actively distracted from the fact that they had to consider provocation because they were repeatedly told that mr blanch was not justified in his actions and with regard to the issue of waiver the court also doesn't distinguish wheeler we have only supreme court precedent as well as appellate court precedent following that saying that where some of the misstatements are preserved the court should look at the entire the entire closing argument and here it's necessary to look at the entire closing argument to get context for the fact that the misstatements were repeated aloud in different times and then in addition the jurors were told that mr blanch was asserting self defense when certainly he was not i think there can be no confidence here that the jury really understood particularly in light of what the judge said that they had to consider whether or not mr branch was sufficiently provoked in order to decide whether or not to mitigate his conviction and for those reasons we asked this court to reverse and imam's for a new trial in