the next case on the docket is number five a day and zero or forty two people versus davis arguing for the pollen to pall davis is gilbert lance arguing for the apple a people of the state of illinois is  some noise in the background there as you know your honour's mr davis is raised five arguments in this court to which focus on sentencing and i'm happy to discuss those if this court wishes but ever like to focus this morning on the arguments requesting a new trial or honors the trial was riddled with error from the judge's denial of davis motion to sever the unlawful use of a weapon by a felon charge to counsel's failure to file a motion to sever the three unrelated burglaries from each other to the state solicitation of example after example of improper testimony that it from a detective that davis was a suspect in other multiple and charged burglaries the two detectives knew davis prior to his arrest in this case and that and when a detective testified that police were called to davis home multiple times prior to this arrest the state also improperly both heard its own evidence when two detectives testified that davis's unrecorded statements were actually more credible and more truthful than if they had been recorded and when one detective testified identified that identified davis in the trail camera photograph or his familiarity was no better than the jurors with with davis your honors any of these errors could be a basis for re that the combined effect of all these highly prejudicial airs tonight davis a fair trial your honour's these cases and plural i mean these cases should have been about whether davis was guilty of each separate burglary charge but instead combining all of these charges into one trial and adding on top of that all of the improper prejudicial evidence may created intolerable risk that this trial was more about davis's propensity to commit crimes and whether he deserved punishment the mother he was guilty of each individual charge this court should have no confidence that the convictions here were based only on the proper evidence and it should be a man for a new trial i'd like to turn now to argument one concerning the u w felon charge as the court knows the state charged davis with five different counts three burglaries plus two gun charges related to the same gun among those five the least serious of all was the u w felony charge but because that charge required the state to present a prior conviction and allow the state to inform the jury the davis had a prior conviction counsel recognize the prejudicial effect of that and filed a motion to sever that count and despite the fact that the judge had just found that introduction of a prior conviction was substantially so substantially prejudicial that he denied the state's request to impeach davis with a prior conviction if you testified the judge denied counsel's motion to sever the u w felony count that was an abuse of discretion and the state cites no case where such a denial of a motion of several you to be a felony count was not error turning to the prejudiced prong of this it's important to note here that this claim is preserved so the burden is on the state to show in this court that the error was harmless the state's prejudice argument primarily concerns the fact that the jury or the jury was only informed that davis had a prior felony conviction rather than the name of that prior felony but as a reading of edwards and its progeny show shows that that line of precedent does not hinge on this distinction whether the jury heard the name of the prior conviction the key is that they heard about a prior conviction and the rd district recently confirmed this principle in their decision last week and howard which we cited as additional already in that case the jury like the jury here only heard about a prior conviction not the name of it's and i think equally important here your honour's is that the state maximized the prejudicial effect of adding this count to the trial because they didn't limit their discussion of the prior conviction to just as being an element of that offense the state three times called davis a convicted felon in front of the jury once in the opening statement and twice in the closing argument that's using the prior conviction as evidence a propensity that was that was not impeaching him when he testified there was evidence of propensity and that was improper use of this prior conviction that should not have been joined in the st place moving to argument to as a court also knows davis was charged here with three separate burglaries at three separate locations in three separate months there's no reasonable argument that these three burglaries are part of the same comprehensive transaction so under the st prong of the test here there was already air but even if these were somehow part of the same comprehensive transaction prejudice of combining all three of these burglaries and allowing the jury to hear all of the evidence from all three burglaries unrelated burglaries in one trial was just overwhelming and that's under the nd part of this test so  possession the gun was connected to the landfill and the name of the street for each burger just for for simplicity but the book the gun was related to the landfill or road burglary and the evidence of injury there was actually accountability the only evidence that davis committed a burglary there was his under morrill ised statement that he stood outside the house while a man named tennessee went inside and took took items from the house including including guns and and the the residents of that house identified that thirty eight dollars handgun as being theirs and that was found allegedly found in davis  these three unrelated burglaries from each other  i'd like to conclude by discussing arguments three the examples of highly prejudicial improper evidence that was allowed here so not only to the state present by joining the counts here not only was the jury presented with what essentially matter to a lot of propensity evidence but the state also bolstered its case with additional completely inadmissible propensity evidence when the detective testified that the police found items from separate unrelated burglaries in davis's apartment and thus declared him a suspect to the jury in multiple are not even charged in this case the prosecutor also and this is similar to the walker case this court recently decided the prosecutor also asked two detectives at the beginning of the testimony if they knew davis before this incident and that of course under walker's improper police familiarity evidence that was irrelevant to whether davis was guilty of any of these charges and finally one detective testified as he was trying to confirm that davis lived in the apartment where they found the items one of the ways he said they confirmed was his because he read documents not even documents that he wrote but he read documents by other officers attesting to multiple visits by police to what was  davis apartment that was also improper propensity evans and finally runners in addition to all that propensity evidence the state's improperly bolstered its case with lay opinion testimony both when a detective identified davis in the trail camera photograph when that detective had no familiarity with davis any more than the jury did a trick that was really a question for the jury and  detectives testified that they did not record or prefer not to record statements because suspects in their unqualified expert opinion or are less truthful with statements around recorded and after counsel for the defendant filed a motion in limine asking for the trial court to prohibit the state from impeaching the defendant with evidence of prior convictions the testified the trial for granted that motion and then a few for the same day actually counsel for the senate the motion then we need never count the unlawful use a possession of a weapon by felon count from the other charges noting that in order to prove this charge they would have to introduce evidence to the jury that the defendant had a prior felony conviction the trial court denied that motion then a few days later before trial or the beginning of trial the parties agreed to stipulate that the defendant had a prior felony conviction so that the jury would not hear the nature of that charge the charges location and a burglary to the residence located at one unicorn hill road in the the at the location and then the possessing of a firearm saw environment unlawfully using or possessing a weapon about one those are five distinct acts so the question then is whether the last act of unlawfully using a possessing a weapon by on the part of the same comprehensive transaction of the other for they comprehensive transaction when the burglaries were on separate dates separate locations so in illinois there is no precise criteria for determining whether separate are part of the same courts will typically consider four factors the proximity of the offenses in time to place the identity of evidence necessary to demonstrate a link between the offenses whether commission of the senses involved a common method close in time in place is probably the most helpful stating that proximity in time place is one of the two most important factors in the during their determination and not because as events become separated in time and in the likelihood the creases that they may be considered hearing in september two thousand and seventeen on the definitive motion in limine to sever the charge from the other charges for trial the state indicated that the stolen weapon in question that the defendant was being accused of using or possessing in bowls both count was a browning and eighty handgun and that it intended to call witnesses blakemore one hound moa holland i know what i mispronounced that but i think i got it and leslie mccollum to testify that the browning handgun which was recovered from the defendant's residence on december  th two thousand and sixteen belonged to them and was still on from there if you fixate landfill residence which was the count two charge that's the link between the two charges there so as the state put it mo how and become testimonies that handgun from the two sticks a landfill road looking shit and brought it back to his apartment as such there was no air enjoining the charges for trial because they were all part of the same comprehensive scheme a transaction asked sue the sound before we run out of time i'm very interested in the police officer testimony where they were allowed to identify the defend them talk on the trail camera  people versus thompson which talks about police officer testimony and whether they can do that and thompson it recommends that a hearing be held outside the presence of the jury was that done in this case so so they dealt with police officers giving lay witness opinions are identification testimony yes and they said it may be allowed where there is some basis for concluding that the witness is more likely to correctly identify the defendant from the photograph than it is the jury but it also recommends giving a limiting instruction as well as having a hearing outside the presence of the jury so that the defendant is allowed the opportunity to cross examine the police officers it's something that's it's been really overlooked by our state's attorneys in southern illinois this case well and in this case you are  court did give a limiting instruction warming it up the evidence that the defendant was involved in any offenses other than those charged in the indictment was only relevant to the defendant's identification may be considered by  honor i'm not sure whether it was also a bone or not but the officer was allowed to say that he was a suspect in other burglaries ok so opposing counsel argues that he had to have been referring to and charged burglaries whenever he testified that however the prosecutor or the state in this case didn't ask about uncharged burglaries they just asked about other crimes nothing about the testimony suggested that the detectives believe the defendant was involved in any  charged in this case so other burglaries could have simply been referring to that which was a charge in this case well but this is my notes when he was on a police ride where they were going t areas of the burglaries the officer was allowed to testify that they went to other burglary locations and defendant then denied being involved in so they went on a ride around to other locations suggesting that they thought the defendant was involved in these burglaries yes not to justify that i think that's an acceptable yeah ok so the detective on testified that towards the end of the drive it became obvious that the defendant was no longer being cooperative and that the detectives believe that he was involved in some of the burglaries because he had a lot of property from the burglaries and that he was denying at those locations and then that this exchange took place the state asked at other locations question mark and detective and said yes they said but in this interview they said i have nothing further so the other burglaries that he was mentioning in his testimony could have simply been referring to the one that was not specifically asked about which was that one located at the one to nine to a highway fifty one residen pick the last point st question about the detective testimony about davis's alleges or being a suspect in other locations i think i think the reason the reading of the testimony there the only reason we're reading of that testimony is that the prosecutor is actually clarifying asking the detective to clarify that he was talking about other locations not charged in this indictment and as your honor pointed out that's that's clear because at that point they were talking about locations where where davis was allegedly denying participation or denying committing any burglaries so but the detective then testified he had property from those burglaries where he was denying so i think it's very clear from the record they were talking about unchartered burglaries there too your question about the trail camera photograph your honor is absolutely correct the procedural safeguards under thompson which i didn't have time discussed before but they were not followed here  and frankly a hearing here would have showed what did the detective testified to which is he had no familiarity with dave if that's what the hearing is for you know if he's if he has no familiarity with the person then that testimony should be coming in he admitted at a trial so we know it fails the thompson test on the st prong and of course as your honor pointed out there was no living instruction at all about how the jury is allowed to disregard this kind of identification testimony so that reason is a reason to grant a new trial here because as the court knows that trial camera photograph is far from conclusive and it's really up to the jury whether that was mr davis or not to a justice wharton's question about the same comprehensive transaction the state's arguing that this was part of the same comprehensive track that transaction there's no case no case saying that three different incidents in three separate months could be part of the same conference of transaction the the farthest any court that i know of has gone is about seventy hours as the terry case cited by the state but even that terry case is an outlier on this most courts have found that same comprehensive transaction requires you know a few seconds few minutes and within a few blocks or a mile or two nothing like three separate locations in three separate  months and if you're honest i could conclude with one point i want to correct an error i made in my opening brief when i was talking about the prejudice from all of these different errors i said that it's and it's true that these kinds of highly predic prejudicial errors may be reversible error even in the face of strong evidence from the state but the case i cited for that proposition the folds case from the nd district actually does not say that it still stands for the principle that  ven sufficient evidence whereas closely balanced requires reversal but i think this court can look to other cases i cites for the idea that even strong evidence must is not sufficient is  not harmless or not closely balanced in the face of such prejudicial air and i point the court instead to the character case where the defendant actually made recorded statements inculpatory statements of the state had very strong evidence there but the court still remanded for a new trial in light of improper jointer and similarly the johnson case where the court actually reversed a u w felon count itself for a new trial where the state had very strong evidence they only had the two elements to prove but the court reversed on that count because the jury heard prejudicial evidence of prior domestic battery convictions which the court found is prejudicial on the u w felony count so with that said your hon affirmative evidence on the record that counsel here chose an all or nothing strategy that's the st point the nd point is the record actually shows the council did not choose an all or nothing strategy because he moved to sever the u w felon count so he was already contemplating two possibly two separate trials here so we know that he was this wasn't an idea of trying to do all this in one trial and maybe most importantly your honor even if counsel had chosen  nothing strategy here that choice the record the record demonstrates this record demonstrates that that choice was unreasonable due to the overwhelming prejudice of having a single jury hear all of the evidence from all three burglaries at one trial and that's what makes this case more like the character case which i discussed a moment ago where the court under similar circumstances remanded for a new trial mr lance just a clarification the character case from a johnson case or both under advisement and we will ensure just position in due course thank you thank you