the judge makes it her mission based on all of the facts and what i ask you isn't it true that when the evidence proves that the defendant acted with the intent to kill or seriously injure his victim and involuntary manslaughter instruction is not justified is that true that is true let me ask you another question earlier in the day this defendant had been seen to be wielding a knife and had said he was going to kill the  and but what is required under under this analysis is taking the facts and circumstances under consideration that requires me to discuss the facts of this case and it's important to remember the totality of on or about the earth or otherwise or was otherwise armed with a dangerous weapon that would be the book tonight instantly or knowingly take property from the person or presence of another by use the force or no because the case law indicates that in order to constitute a robbery the use of force has to be sufficient to overcome the person's well through fear or through actual force and in here quite is what wasn't overcome and i would like to say that again to say that this under these circumstances was an armed robbery with these sort of absurd results and the time a friend is about to drive drunk when you take keys away from them and they don't want you to take the keys away from them actually occurred i'm not arguing that this instruction is an accurate one i'm arguing is that the defense had no opportunity and could not reasonably anticipate saying that the prejudicial impact outweighed the probably the value to me the other tactical decisions and who knows what the what the court would have done if there had been an offer on the table if they had assumed that this was going to be a problem and all so i'd like to point out that this happens during the jury instruction never kirby you this was an ad robbery until after the trial was over well you know the reason why this came up that your honor if i could just give briefly give a little bit of chronology prior to trial defendant stated that there firmat if defense was self defense in the trial knew why did the people choose to give that in addition to the initial in aggressor instruction because that was the court that already agreed to give that your honor the instruction there was here because the defendant  elements here the people negated all the elements and therefore the defendant's claim of self defense failed it was incumbent upon us to negate those elements in the jury instruction was proper in light of the fact that it w supported by the evidence and it accurately stated the relevant law in illinois regarding self defense and the initial aggressor what about the president's ideas that we just heard about the list of ideas that were raised that had anyone ever mention the words i'm craft to respond to the top of the crime charge i agree with that ok so if the defendant had been charged with armed robbery then we have been different would you agree with that no i would not agree with that  this because after the jury professor rejected the defendant's claim of self defense they then went on to consider second degree murder in order to find the defendant guilty of second degree murder the jury had to define head to find that the defendant subjectively believed that his the fact that they were instructed i'm awfully late in that no you're right and if i could just explain right because the jury found the defendant did not have a reasonable excuse me a subjective belief they also rejected one of the required self defense a reasonable oh subjective belief that he was justified even assuming error in the instructions official there is no way the verdict would have been different either way the defendant is guilty of first degree murder  asking the jury to decide is whether he was justified in using force so i mean that goes to your i think that refutes your argument that they they found that they did not find that he was justified in using force the force that was that would change the charge to want to second degree murder you're either in the people's closing arguments to explain the  the second degree your honor it's important that this court look at the totality of the circumstances and the events leading up to this stabbing and the events that followed the defendant is walking around with a butcher knife threatening to kill the victim all day when he discussion what is it how does it come in and how is it uses a substantive evidence or you know all those kind of ideas that's the only place i've ever seen something like this come in but me that doesn't quite work because that's all about evidence and of course have any time to respond to that or any opportunity the nets their argument that they would have crafted their defense differently and this was introduced at a time when the logically follows that a person is natural stuff i had in the use of force if he was attempting or committing a forcible felony here there was evidence that the defendant arguably was committing an armed robbery and that defendant did not act in self defense pursuant to illinois law because he was in the act of committing an armed robbery and that's that's nowhere in the evidence that was presented to this jury that's my problem with this and then you get what you get to say that to the jury in the end other than the fact that this case he could could not have acted in self defense because he was committing an armed robbery but there was no talk about on officer he lied because he knew he wasn't justified in what he said he said somebody stepped up to them to go to the to the first the instruction about the recklessness and who the rabbit with involuntary manslaughter we're talking about  decided that it was up to the jury to determine under the facts of the case whether defendant was acting in self defense the jury clearly rejected that clearly rejected any mitigating factor they found the defendant guilty of first degree murder even without the challenge instructions the verdict would now and different years did any indication of armed robbery ever take place so she didn't have an opportunity to form her defense around contending against this armed robbery and also just want to point out that the jury was never actually asked to determine whether or not degree took you know should be taken into consideration that second degree charge of course i would just say that the fact that there was an armed robbery instruction a fact whether or not the jury believes the use of force was justified  couldn't the jury could believe that he was not justified because and he could not have believed that he was testified because he was committing an armed robbery one way or the jury was instructed in this case affected the way that they consider not only self defense but also second degree