is there any basis to claim ineffective assistance because that instruction wasn't given and if there's no basis to do that have the jury found the defendant guilty of armed robbery aren't you in effect arguing that because the jury found it down i'm guilty only of bribery that really you know that have the jury been given up an additional choice it might have reduced it still further but it's sort of it's sort of ship maybe i should ask for a theft instruction as well well in this case it was because of the particular circumstance of this case that the trial counsel actually failing to request the instruction that was particularly prejudicial sentence testimony the jury could find him was guilty of the lesser included of robbery but now you're coming before us and saying counsel was right in that regard but he didn't take it far enough that he should have asked for a lesser included of a lesser included which i think puts the trial judge and really difficult spot that i find it unlikely that any trial judge would allow such an instruction but do you have authority that you know where where where something of or the defense counsel asking for a lesser good offense destruction fast getting convicted of theft and then coming before us and saying you know he should have asked for that to disregard the defendant's testimony then he would have been found guilty of armed robbery but through purely through counsel's afterwards he sufficiently called into question the victim morning may please the court margaret lustig on behalf of the people of the state of illinois in this case defense counsel crafted a strategy encompassing a letter that the defendant said to the victim the letter was an outright admission to robert however the defendant in the letter stated that he didn't have a gun and it should be noted that never once in the letter than you and the amount of cash was five hundred dollars but it wasn't five hundred dollars it was three seventy and the secondary strategy could very well have been as just as farmer  that if the jury believed the defendant's story he would have acquitted him of both they would have acquitted him both of armed robbery and robbery but i think it's clear that they believed ask you this because i did ask about you know lesser included of a lesser included but and there's no doubt that you're responding to defend it's not guilty all the time and certainly does happen frequently  but it seems a little less likely when the defendant takes the stand and says yes i committed a crime for the jury to say not guilty why shouldn't the jury that the defendant is asking to assess his culpability be instructed on because that's what the defendant has i mean that's what the  if if he had sat i committed that literally using the word that and counsel had pursued that struck out trial strategy and said to the jury he committed no more than  in his argument but the jury isn't instructed on the theft conviction certainly seems like the jury is going to say well we know he committed a crime and even though we're not being presented with the option of but what you're saying to me in that regard is that a letter from this test but why should the writer from this testimony if his testimony is challenged by your office in the course of cross examination which is the key to any trial you know when president mation he was asked why in the letter he never mentioned anything about a drug deal gone back and he never ever mentioned that until he was on the stand but he did i believe it was an all right all out mission robbery in the letter and then he also said in the letter you know my lawyer will be sending investigator out to speak to you about the identifying process let him know the truth about what happened or berger yet let him know that you picked the wrong person and why and i believe this letter that was sent to the victim shortly after  offense where he stated he did not have a gun may have influenced the jury to find him guilty of robbery versus armed robbery but i think defense counsel was very effective in that the strategy  robbery certainly council performance is reasonable given the letter evidence in this case in conclusion i would ask that you please affirm the defendant's conviction and sentence thank you that because that's it's kind of the taking of my point was that he was only charged with armed robbery in the in the in the charge against her and what you're arguing is that if he was only charged with r m robbery maybe maybe this is your point that really he trial of the trial counsel made a mistake in seeking a lesser included offense of robbery he should have gone all the way down to and just i'm just saying that i find it unlikely i mean let me ask you this what if he had asked for the theft conviction and the judge said i'm not doing so the instructed the counsel is no longer ineffective and now the issue is whether the best instruction should have been given under the standard that we all know you have some evidence  we don't know but i'd have day they would have had the option of wasting that belief because there was a doctor instruction it was so then they didn't go so so the letter complainer comes in and the jury says disregarded and we'd leave it up to the jury to decide as you say it's not one hundred percent certain that they would have found him guilty of found but certainly there's a reasonable probability given what else happened to the extent that they've rejected ye