good morning your honour's my name is autumn really fincher of the office of the state of public defender and i represent john bailey good morning justices some assistance state's attorney about bassett on behalf of the people more and more people good morning again my name is autumn renee fincher of the office of the state appellate defender and i'm here before you today representing john bailey trial john bailey testified that on the morning of the incident he woke up to find his girlfriend a can use buyers sitting on top of him with a loaded gun pointed in his face but you argue he only had received a phone call from another woman on a cell phone and b this is planned as the state noted but while there was a break in the action this is when the circumstances shifted such that bailey's actions after the gun was set down were arguably reckless because after of him that the gun down bailey made the decision to get out he scooted over closer to where the gun lies and sat down next to his girlfriend with the gun between them they're still arguing and while they're arguing bailey reaches for that gun buyers moves it away from him she then takes the new hand raises it above or had an inch with her finger on the trigger bailey while her fingers on the trigger put all of his hands over her hand to choose her wrestling back and forth she's pulling it back he's point from the gun goes off killing it's firing the single bullet it killed fires a jury could have concluded this testimony this instruction even though it was that act he out of struggling over a gun that he assumed was loaded that this court found entitle the defendant to an involuntary manslaughter instruction in people first says robin bailey's opening and reply briefs and it is that it is the fact that the gun was not pointed at bailey when he made the decision to reach for it in struggle over it that need his r unjustifiable he didn't reach for the gun when it was pointed in his face he did not reach for it until after spiers had gotten up off of him sat down in the bed most importantly set that  ted over in his own words screwed over in sat down next to her he consciously disregarded an unjustifiable risk by choosing to reach for that guy and when spiers got it first he reaches for it again and while her all that is contradictory evidence in contradictory evidence brain determining whether or not a jury instruction is warranted this court in the trial court below cannot read the evidence it's for the jury to determine whether or not the medical examiner who was not in the room is is is accurate well john daly's telling the truth and they can only do that they're properly instructed to because there was some evidence of a reckless like a jury in the judge refused to give instruction that makes it even if he was presenting contradictory theories of defense which is whether or not it was an accident that required the trial court to give him an instruction on involuntary manslaughter and the court's refusal to give that instruction wasn't harmless here the jury convicted barely of second degree murder and only after initially indicating that they couldn't reach a unanimous verdict this means that they found there was some mitigating evidence present presented as to his mental state at the time that gun went off it also means that they credited john be at least testimony to some degree because they rejected first degree murder they were left only with the choice of second degree murder or without the ba by having committed some culpable kind of struggling over a loaded gun so there is the part reasonable possibility that the jury might have convicted him of second degree murder to avoid including according him entirely there is a reasonable probability in this case that the outcome would have been different had the jury been properly instructed and it is for that reason that we asked the court to reverse belief conviction for second degree murder it remained a matter for a new trial justices counsel and may please the court the truck court in this case did not abuse its discretion by denying defendant an involuntary manslaughter jury instruction because there is simply no credible evidence that he was over what the law well a finding of credible evidence is something that that is a question of law because it has to at least meet a minimum threshold in this case that being some evidence that not really because the evidence itself has to have some basis in it the defendant cannot just make any sort of claim and if it's contradicted entirely if the evidence rationally precludes his so theory then it shouldn't be accepted that in fact there are cases in indeed vincenzo for example and in mitchell where the injury that the defendant where the defendant's theory was inconsistent with the injuries that the victim sustained particularly in mitchell which is a first district case that this court decided where you had a victim who came at the defendant with a knife and then the defendant tried to disarm or and in supreme court enumerated several factors which would be indicative of recklessness and even send one of the factors is whether or not fists were used or whether a gun was used and what's particularly striking in this case is the fact that it wasn't just a gun that was used as a gun that the victim's son testified that he saw the do then with the floor but not only that the type of injury that was sustained in this case screams that this was an intentional shooting this was a single gunshot at close range that was an execution style killing shot it went directly through and through her left temple and exited through her right temple this wasn't something where they're struggling for a gun and a shot just goes well the judge in determining whether or not there was some credible evidence has to determine whether or not what the defendant is saying reaches that standard and if what the defendant is saying does not comport with any of the other evidence in this case then it it  certainly can't be taken at face value and meet that level of some are some evidence now more particularly when we look through the list of the defense sends a factors the first one was a relative size and strength disparity between the defendant and the victim and here the defendant was told by two inches outweighed her by ninety pounds but more importantly was fifteen years younger he was a twenty year old man and she was a thirty five year old woman and had every ability to overpower her now the second factor was the severity of the injury and here again if we look at the type of injury that was sustained it was directly through the victim's  syndicated and i quote from the metro medical examiner's testimony that she had her left arm bent at the elbow and pressed against her head with her hand slightly to the back and behind her head now this would indicate that it was the defendant who actually had the gun in his hand because it could hand the victim's hands behind her head but she somehow also has the gun the shot would have either missed the back of her head would have went through the back of her head not the front temple it the radical it practically cannot happen and so the defendant's theory of this case is he said his version of events just simply does not it's entirely precluded by what the physical evidence a saying and moreover the pillar in this case had a bullet hole in it now the defendant try to explain this away as saying oh it's just a pattern in the pillow but that's just a completely baseless piece of testimony when there  s found in the pillow and there is sticking sticking out of the pillow and what this like this evidence is important is because the defendant also testified that the victim was upright when she was shot but that doesn't really make sense if the pillow also had a bullet hole in it now these are issues these are facts that this court should ultimately examine in determining whether or not there was some evidence because you still have to look at whether there was any basis in what the defendant was saying was he was he at any level telling the truth in this matter and and he wasn't now cheney's which is a case that examined even senzo and determined that none of the defense sends are factors indicated recklessness also added one more factor and that was the fact that if the defendant flees that is a true strong indication of consciousness of guilt of an intentional crime and in this case we have a defendant who after shooting the victim doesn't do what somebody who accidentally shot a victim would do which a reasonable person would call nine one one tell the victim's kids hey look we need to get her some help now what does he do he gets stress he leaves that part of the house and happens to have a car waiting for him right there and not only leaves the scene without calling nine one one even though he testifies he had a cell phone he skips town he goes to minnesota to live with his girlfriend and his mother this is inconsistent with someone who just moments before told his girlfriend that he was planning on marrying her the next week now this factor in addition it was them i'm sorry he was being untruthful and he was try to no it's not be just because of bad it is because if we can't believe what's coming out if the testimony that the defendant provides is simply incredible there's no basis for then finding that what he's saying provide some evidence of of recklessness the defendant told ones were great he did the medical after looking at all the evidence whether the defendant committed an intentional act and you know manslaughter well they didn't have to in this case because ultimately if they determine that this was an accident they could have the quicker they could acquitted him and in fact robinson the case that the defendant cites is clear and says specifically that you know if the jury had been had found that the defendant in that case had an unreadable belief in this in self defense it could have nevertheless found that the killing was accidental and acquitted him they had that option but they didn't exercise it and in finding him guilty of second degree murder they will determine that he acted intentionally and so for that reason even if this court were to decide that an involuntary manslaughter jury instruction should have been given the error of not giving it would have been homeless regardless because if they give them been given the involuntary manslaughter jury instruction they would still returned a verdict of second degree murder because they determined that his actions were intentional and and that position is mutually exclusive with also finding that he acted recklessly and there their reasons as articulated were that the evidence produced a trial shows that he was reckless now inside not reckless but intentional and now or opposing counsel makes this point that there was a break in action and that the threat to the defendant subsided and so his action of then remain in the room and wrestling for control over the gun was somehow backless but to the contrary our position is that staying in the room is actually a calculated deliberate thought sitting next to the victim next closer to the gun is actually a calculated deliberate thought and the fact that he did intentionally uses force very abruptly to try to grab the gun in his words to get it away from her indicates that he was having intentional thoughts he thought this through and moreover when the threat subsides then came somebody more time to think through their actions and that's exactly what happened in this case this isn't a case where you know she had the gun to his face and he had to act out of the blue to try to save his life or to try to remove the weapon no this was an act where the threat subsided and he had plenty of time to think through what he was doing and so for that reason this wasn't a reckless act this was intentional and he and the jury rejected the notion that this was an accident ultimately decided after looking at all the evidence that this was an intentional act and so for that reason there was no way that it would have found him guilty of involuntary manslaughter now there are two final reasons that i want to provide for why defendant's actions were not reckless and the first says that it's because he did not is not really the one that really the whether the defendant's actions were reckless or not at the at the heart of this case that is the assessment whether there is some evidence to show that he was reckless now one of the elements of course and then in trying to get the knife the weight from the victim the victim was stabbed now as a matter of law the mitchell court said that the defendant's attempt to quit will remain a or at least mitigate a risk by getting the knife away from the victim show that the defendant was not in conscious disregard of the risk and that's exactly what we have here you have a defendant who was trying to in his own words from his own testimony get the gun away from the victim it shows that this was not a conscious disregard of the at the attendant risks and so mitchell on this point is highly instructive moreover even in robinson in footnote one on page seven seventy four states that unlike  mitchell the defendant's testimony and robinson show that his struggle was to defendant's himself and not simply to secure the weapon here we know that the defendant acted to secure the weapon not just not to defend himself and this was not a conscious disregard of the risk now the second reason is that the defendant under took a justifiable risk and here we cite castillo in our brief which is indicative of this point in castillo you had the victim draw a gun on the defendant and threatened him a struggle ensued and the victim tugged on the defendant's shirt and was shot fatally now the defendant it another court inquest here determined that the defendant acted with regard to a justifiable risk he was presented with this big threat against his life and so he had to do something and for that reason the defendant in this case at least according to his testimony acted with respect to a justifiable risk he was scared for his life as he stated just as the defendant was in in so he was reacting to a justifiable risk so on its merits that even if we're looking at the very specific elements of what it means to be reckless he did he did not consciously disregard the risk that he was getting himself into and moreover the risk was justified so at the end of the day the at the final analysis the easiest way for this court to rule is to find that the trial court did not a business discretion by denying defendant and involuntary manslaughter jury instruction where the defendant's actions actions as understood by the jury were intentional and therefore it would have precluded a finding of recklessness if there are no further questions we ask that this court  if i may very briefly just address them the see it's arguments first of all i think the state of here is to confuse some of the standards the standard on review and i and the trial level was not whether that john bailey's testimony conclusively proved that he ought to recklessly it's whether there is some evidence in the record that would have supported a finding that he acted recklessly and that question is resolve twelve illinois supreme court case also whether or not it's on the evidence is credible it's within the province of the jury and the jury can only make that determination if they're properly instructed on the law went it started struggling with the victim while the victim was rushing at him with a gun i mean with a knife from sorry and that is the distinction between his d o b and all in this case in this case as for the fact of you know in haiti is that the that the court found that another factor that might lend itself to a finding that the defendant was not entitled to a instruction on involuntary manslaughter is the consciousness of there's the risk that the jury hearing from mr bailey's own mouth his own testimony that he argued that he rustled over a guy and with his girlfriend that he was culpable in some way and that they can't acquit him and there the risk they could acquit him entirely and so they found him guilty of second degree murder the only mitigated offense they were there they were instructed on