good morning counsel our next case for today is case number four fifteen zero six six seven people a state of illinois versus james how means including callen we have mr wilson who are the a was filed by the state ask you their motion to strike and there was not a response filed the intention of the court was to take that with the case and if there is argument on that or anything you want to say on that please do so this morning during your argument and you can let us know your position as well that you may proceed counsel and you did receive courtesy copy counsel all right for example landis right lived in the home that the police raided on the day that is was arrested but green has told the police at the time that he was arrested with james and at the time of james's trial that all of the contraband in this house says none of james's fingerprints were found on any of the drug paraphernalia not on the pirates dish not on the scale not on the table where drugs were found in the ransoms home and the police were on the able to definitively establish that james in fact was staying at lorraine says house there was some testimony that there was a fresh bag of clothes in a closet lancets home but the state didn't reduce any evidence establishing that that bag was linked to james in any way they didn't for no state or the state also failed to ask or bill what weight of drugs he intended to purchase when he went to the marines house so as i said there are substantial gaps in the evidence here demonstrating that the state failed to meet its burden to show that james constructively possessed these drugs and that he in fact intended to deliver them wasn't his house where randy says taking credit for all of the drugs if this court were to disagree with the main thrust of the there's also a second resort out argument the breeze and that is that if this court finds that chain's was guilty of constructively possessing the drugs and having to deliver the drugs his conviction should be reduced to the cost to a fancy of manufacture delivery of a controlled less than one gram of a controlled substance and that is mainly because no state witness testified that or ballplayer to purchase more than one gram or one gram or more of a controlled substance and they are required to shoot it in order to recovered isn't it logical isn't there an inference that if you are selling drugs and you have a certain amount found in your home you intend to sell that amount it might be a logical inference if it's in your home  home where you are well i guess if i am intending to sell a certain amount of drugs and i am at a friend's house and a friend has a lot more drugs than what i do i don't know how can be inferred that i am planning on exercising my didn't you troll over the drugs in my friend's house and that's exactly the situation that we're presented with here and of course we know we have the concept of time is it correct but in order to show joy possession you have to show that james was equally able to  control over the premises and we don't know how the premises are the child's well one factor in the constructive possession is that he he has a knowledge of the presence of drugs and he exercises immediate and exclusive control over the area where the drugs were found right so you don't need to show that he owns the premises that is his house or anything like that correct very quickly i completely agree with that but you still have to show that he has immediate exclusive control over the area and where there's no so there is certainly a question regarding whether he intended to exercise control over the full amount of controlled substance that was found on the table in the once home but i should say even if the court not clear cut there there is conflicting evidence there is not definitive evidence that james in fact was going to exercise control over all these drugs and the errors that coun committed here are sufficient to justify a reversal in what is a very close case specifically we really have two parties in this case we have james and we have all those are private you characterise in the charged with a criminal offense here the jury was told orville was taken into custody but he was taken to the police department that he was mirandized but he was questioned the counsel never tells the jury that the main witness the lynchpin of the state entire case the one you can place arguably in place the drugs in james's hands was an unreliable witness because he may not have wanted to be charged by the state and may have wanted to give favorable testimony to ensure that he wasn't be charged in this case and so you believe the impact of bringing out that information would have been greater than the jury knowing that this guy is obviously a drug user and trying to purchase drugs and you wouldn't have any concern that they ma determine that he was not charged for a legitimate reason well i don't know what i don't know what the legitimate reason could have been that he wasn't charged given just given the sheer facts of this case but certainly the fact that he was a drug user and all the factors that you mention that's something in addition that the jury could consider but when you're talking about witness bias juries take that into account if if a witness has a contemplates that counsel will engage evidence cherry rules to shield his client from a decision based on unreliable evidence and if there is some kind of evidence that is unreliable it's the testimony of a biased witness and the jury was never defendant that propensity evidence is generally are not because it's improper because it's too probative juries placed too much weight on that evidence defense counsel did nothing to see that that evidence was limited for example to a way of establishing the way that the two men knew each other and not for criminal propensity council did nothing regarding limiting that crucial evidence and then we have another evidentiary problem as a heston representation well testifying about why he believed the drugs in the residence were meant to be the liver officer layer told the jury that he based his conclusion on the fact that the officers making contact with the two subjects out in the alley that's orville in blue and world they stated they were there to buy cocaine from mr comics up to that point the jury had learned lou and had in any way implicated  herself as someone that was going to go and buy drugs from mr cummings again defense counsel didn't seek a limiting instruction and don't get me wrong glares testimony as to when statement was admissible in so far as it provided a basis for layers testimony for his conclusion that the drugs were meant to be deliberate but that doesn't mean that the defense counsel couldn't have limited that testimony so the jury didn't know that but as a result of counsel's failure the jury didn't know that it couldn't consider this hearsay evidence that luanne told the officers as substantive evidence of james's guilt defense counsel failed to limit this evidence as well so stepping back from this for a second we have an incredibly close case where there are numerous holes with the evidence of the state present no catalogs establishing the drug deal of inside out james was a result or the evidence is inconclusive on whether james was residing at the rent a since home we have who takes credit for all the stuff and then we have defense counsel that lets in three evidentiary matters that carry that would carry great weight with the jury and all of those mags should have been limited or objected to in some way and defense counsel didn't do that and then we have the additional problem of the jury instruction there potentially was no more crucial jury instruction in this case then the definition of the word possession during its deliberations the jury sent out a question saying we would like a verbal description of this a more detailed explanation in my brief my usual brief i set out the trial court has a duty to provide an answer when a jury poses an explicit question but requests clarification on a point of law the court must discharge the studio even if it has already given the jury proper instructions regarding the law where the jury makes difficulties explicit the judge should clear them away with concrete accuracy and where the question asked is not clear it is the duty of the court to seek clarification so in this closely bounce case we have multiple examples of defense counsel allowing an improper evidence we have the jury coming to the court during its deliberations with arguably the most crucial piece most crucial jury instruction in telling the court we've got a question about this could you give us a more detailed explanation in the corner just  read the possessions for part of the problem is we don't know we don't know what the jury was struggling with here the court when the jury expresses a question or seeks clarification the judge has an obligation to try and alleviate that and part of that is going to the jury and saying could you please explain what you're having difficulty with here or telling the jury please review instruction and that's possible the problem with that though is you then have the possibility that the jury who has already told the court that struggling with this instruction goes back and feels kind of the jacket that oh we're not going to answer this so i guess we just throwing hands up and that will be the case in every diri question not it would be the case in every jury question where the judge didn't rightly respond to the jury question well we see lots of cases where the issue is the jury was asked  here is in the way that high read the note that was in the record in the way that might my recollection i could be mistaken i haven't seen a record in several months now was that it was a two line question the first line is we would like a fertile description of us and then the second line was it's a more detailed explanation it's that more detailed explanation part that i think really concerns me because you have a jury that saying essentially we've read this again this very important jury instruction we would like a more detailed explanation of this and so what have you found so what if the court determines that i can't do any better than the definition provided by the instructions and this is going to lead to more confusion you know conversation between the jury and myself and we don't want to go there until the court is of the opinion they need to reread the possession instruction and go with that which is a really good instruction it's pretty clear there was something you said the first part i'm trying to remember what it is part of the problem that i have with this case is that you said something about the court thinking  the court thinking that it can do a better job than what the instructional and it might lead to more confusion for the jury and require that or to engage in an extensive conversation with the jury sure the issue i have with that position is the judge in the first place didn't find out what the confusion was here if the for example if the judge had gone and said jury why didn't what is your confusion and the jury said we're not sure  how construe this language well the judge we say i don't know what that means i'm not going to bother him so i'm going to truckee you go ahead and continue deliberation with this jury instruction what's assume that the judge asked that up what's he supposed to do that he or she supposed to do that because every word he or she utters that is different than this supreme court approved instruction is going to be argued by you as having been something or change anything maybe it sounds better if i say it as opposed to the juror saying it themselves but otherwise it's really not going to have any substantive fact or i can tell them you just need reading instructions as soon as i start trying to explain that instruction isn't the trial court then walking down a road really doesn't want to go down it's not when so so let me back up a minute when i'm not arguing is that when the judge gets this question or this concern from the jury that he has to start throwing different non ip eyes at the jury hoping that one of them sticks and one of them answers the jury's concerns what i'm arguing is when he hears the jury say especially in a structure like this that that is an incredibly important jury instruction in this case when he hears the jury say we need a more detailed explanation the structure the first step is find out what they're confused about what you need a new why do you need a more detailed explanation and then as to your question about well you know my going to come in and argue that the court was wrong with the explanation it gives the court then gets the parties together gets the state with defense of the court and say we are confusion here rule for fifty one allows for the submission of a non i p i that's not an argument and you know clearly states of law and that sort of thing that that is what i would say the court should have done an instant case but that the court did see a map so prepared to accept your representation that the court didn't know what the jury was asking or didn't know what they were confused and now to me when they say we need further clarification and the chance reaches the loser that this is what possession means when i instructed you what  n means i don't understand what else the judges to do other than to refer them to read and instruction again and i guess to that issue i would go back to the people versus harmon case  was ineffective for failing to object to something the court it correctly a major premise of my argument is that the court committed error here by not properly respond to the jury question in reply i raise a plain their argument the state is argue that i can't do that in a reply perry and in my response i've cited to present the says i'm able to do that i've also cited to multiple instances throughout the brief where i've cited my complaint that the court committed air by not properly argued statutory construction and adds to process into the reply brief so that's an additional argument to state and i could respond to and so that's why we're asking the court to strike first give a chance on brunell can you talk a little bit about the layout it was a little confusing to me when you talk about you come in and there's a kitchen area an adoring to a basement i'm a little confused on that and i know that there was a diagram but it really wasn't that helpful can you talk about that in all of this layout and where people were when the police came in and all of that i'm i believe the testimony is that when the officers entered it they enter off an alley yeah i believe it's like i am it's i think the entrance to the apartment is off an alley and it's like in the back part of the building ok so i think that it's a kind of a different type an apartment  but the testimony is all in agreement even co defendants testifies that the drugs and he didn't testify the drugs the table was in a kitchen area everybody is talking about a kitchen area right so i don't i think that my opponent construes it as another room it's not another room so when we have this testimony about someone running to the rear of the residence is that still within the kitchen area i am not quite positive on their ok i do know that when they enter there are two men in the kitchen area and that's where the drugs are so are my argument is ok knowledge can be inferred when contraband is in plain view of the defendant in addition defendant's foam is next to the crack cocaine on the table when the number for jail or defendant street name was styled on horrible also thought that the cocaine was in powder form but it was a rock form so we can infer that defendant cooked it therefore he knew about it as for control we can also infer that since defendant song was was next to the drugs on the kitchen table that he had control over the drugs that were next to the his phone also sullivan testified he was going to the residence to buy drugs control that the drugs and this occasion or will reap withdrew six hundred dollars from the a t m the same amount as the value of the amount packaged on the kitchen table this is proof that intended to exercise control over the entire amount on the table which was going to go to or of all this the evidence at trial was enough to allow a reasonable jury to infer that defendant had power proceed asked for the individual issues defense counsel is not ineffective for failing to request a response be provided to the jury's requests for a more detailed explanation of the instruction to find possession the court the jury asked note out stating we would like a verbal destruction of this more detailed explanation the jury did not say that they were having difficulty with some words the jury did not say they did not understand or were confused a party agree parties agreeing to the court's suggested response police rely on the jury instructions the witness's testimony in admitted exhibits in addition to my own the argument already made that this is more properly addressed in post conviction proceeding since it was a matter of trial strategy counsel is arguing that defense counsel is not ineffective in this case the instruction given back after only to find actual and constructive possession a more detailed explanation to an already fairly detailed definition would involve the application of the definition to specific facts situations any more specific inquiry or commentary our application of this instruction to factual have hypotheticals would have had the effect of commenting on the facts of the case defendant suggestions in his brief regarding defining specific phrases would have just highly highlighted certain phrases in evidence over others and perhaps directed a verdict defense counsel was not defense counsel employed recent trial strategy here i'm just guessing but perhaps counsel felt they asked a jury was asking a question they would not be able to reach a verdict perhaps counsel felt that if the court further defined the terms in the definitions and may in explicitly inexplic otherwise properly instructed so i don't believe the defendant has shown prejudice as for whether defense counsel was in effect in from yelling to cross examine or about his bias where he was not charged with a crime perhaps because he agreed to testify against defendants defendant is admitting that this issue hinges on speculation or perhaps he was charged not charged there is no evidence in the record that perhaps he was not charged because he agreed to testify so this whole issue is hinges on speculation also defendant has not demonstrated there is a reasonable probability that the result of the trial would have been different had he had this questioning happened the jury knew that horrible had bought drugs in the past and planned to buy drugs on this day edition of credibility challenges would have been cumulative and the jury had strong evidence of defendant's involvement in drugs apart from testimony including his presence and in plain view the drugs large package of drugs on the kitchen table the cell phone next to the large drugs as for whether defense counsel was ineffective for failing to object to our request an instruction lamenting the jury's consideration of other crimes what happened in this case is the prosecutor listed in response to cross examination somebody you had a business review a range of his question was somebody you had a business arrangement in the past all right you've bought crack from him in the past right and horrible answers a long time ago defense counsel was not ineffective for failing to object to this question because the evidence was admissible he invited it by his cross examination trial strategy might he might have highlighted that testimony if you'd object to it also he was not ineffective in failing to offer a limiting instruction because of trials strategy and limiting instruction would have highlighted or emphasized this testimony and the emphasis in the question you bought implicated orval in the crimes not defendant so to instruct on on other crimes emphasize the fact the defendant have committed this very same crime in the past as for defense counsel failing to object to the investigators testimony explaining that police reports indicated that oracle's girlfriend they intended to purchase cocaine i think this argument rests on a subtlety that was probably not even noticed by the jury the police report said they were there to buy cocaine discussing the layout of the apartment the police say that they so the defendants run towards a stairwell somewhere around the kitchen this is the only stairwell around the kitchen i'm aware of tap apartment way from where the the allegedly found if this was the only table that was in the residence and the drugs were found on the table so that they were that the defendant at the time that the police execute the search warrant was not in the same immediate vicinity of this table he was in a completely separate room at the top of them that he and his family but your positions so i see the table the table is here right the testimony indicates that the defendants were here sometime right around when the police breached the door so if there is i'm sorry it bad it doesn't say on this and that and the germans were on that tape in the drugs were supposedly on the table now you're saying that's where the basement the word is yes that's my understanding now another kind of important subtlety about this case is the officers who initially went into the residence and secured the defendant the defendant in the grandest didn't actually see the drugs on the table if it's a large amount of drugs that the officers walking right by on the table a point to the state  referenced as a large amount of drugs i would expect a police officer to see that the fact that the officer didn't see that leads me to believe that maybe the drugs were in as plain sight as the state would like this court to believe turning to me do you remember and i don't to because we have testimony of different officers they talk about someone running toward the rere at the residence when in turn that's what threw me off because they came in in the rewrite that's saying the defense counsel didn't want to to object to these things because it would draw the jury's attention to it i have a fundamental problem with that position that problem is in eleanor we assume that the jury follows the instructions that they're g and what this do and what they don't make decisions according i can except that to a certain extent and in the park where you kind of lose me on that line is we also have the principle that effective assistance of counsel evidence he didn't do that instead when you're looking at the give and take of things what is more dangerous here i think it's more dangerous to allow in testimony that your client a drug dealer that sold drugs in the past when he's being prosecuted essentially for  a drug deal i think it's it's more prejudicial to allow in testimony hearsay testimony of another witness that the jury hasn't heard from yet when that witness is saying i was there to buy drugs to arrive or the james was there to yes to to certain extent again but the point that i struggle with that here is i can't think of a valid trial strategy counsel to allow these things and given the damaging effect this isn't a instruction so you're not saying that the jury wasn't hearing that you believe it should have been and should have been instructed as to how to consider and sound to justice deion's point the jury's going to hear it and then defense counsel has to make a determination do i bring it up again and have the judge agree