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"stt_transcript": "So our first case this morning is 525-015, People v. Davis. I've got Ms. Ingram here on behalf of the defendant, Mr. Atwood, on behalf of the state, correct? Yes, sir. You ready to proceed? Go right ahead. If you'd please state your name for the record. My name is Amanda Ingram for Mr. Mike Davis. I would like to focus my time today on the first two issues. First, reasonable doubt and that counsel should have requested an accomplice instruction. Trayvon Brown Nelson planned an armed robbery just two days before this shooting. Davis declined the invitation to participate in this robbery and suggested that Trayvon get a job instead. O'Neill was also in on this plan, alerting Trayvon to where guns were located in the late afternoon just prior to the shooting. Trayvon, O'Neill, and Thomas were together all evening at a barbecue at Ashley's house and going around town drinking and doing drugs. Davis was not present for any of these activities. He was not there. At 1.34 a.m., Trayvon texted an acquaintance that the armed robbery plan was in motion. We're fixing to go get guns and then KT's stuff. Trayvon told police that he spoke directly to Khadija Graves that night, but Graves denied ever seeing him. At 3.02 a.m., O'Neill FaceTimed Trayvon, so we know that Thomas and O'Neill are still alive at that time. Trayvon's account of what occurred between 3.02 a.m. and 3.45 a.m. is not worthy of belief. According to him, Davis was with them in the car and there were no problems. Davis went into his house, returned, and for no reason, completely out of the blue, shot both O'Neill and Thomas repeatedly. Trayvon had a clear motive to blame Davis as he was the one who planned the armed robbery of Thomas with O'Neill. There was at least some evidence of that robbery because in addition to Trayvon's multiple text messages detailing his intentions, Thomas' bag was left unzipped, open, and with his keys inside and nothing else. No currency was recovered from Thomas. Davis had not been with that group for the entire night and had no reason to shoot two people completely out of the blue. By contrast, Trayvon and O'Neill were in on a plan to commit an armed robbery against Thomas and were with him drinking and doing drugs for the whole night. Notably, Trayvon maintained that both victims were finished from the right side and that Davis walked from one side of the car to the other, but the autopsy established that all of the gunshot wounds traveled from left to right. Trayvon was on the left side of the car and had blood spatter on his body and his clothes. Additionally, Trayvon was admittedly under the influence of drugs and alcohol that night, which supports the idea that the armed robbery he planned went awry. He exhibited extremely bizarre behavior that night, driving around for half an hour with the victims dead or dying in the back seat. He did not seek aid with them. He eventually switched cars and used O'Neill's Jeep to go get a girlfriend. He called a separate girlfriend 24 times and by the time he returned to her, she had loaded her SUV with suitcases and those suitcases were never searched. Trayvon also asked one of the responding police officers if he would give him a hug. In addition to Trayvon's testimony about the shooting being unbelievable, the remaining evidence after the fact is inefficient to establish that Davis was the shooter because it only establishes actions after 345, which is when Davis drove away in Grace's car. Davis did clean and dispose of the guns with his uncle's knowledge. These activities took place after the fact and in no way established that it was Davis and not Trayvon who shot these victims. His uncle, John Carter, specifically testified that the reason he assisted Davis with this and alerted the police was that he believed him to be innocent and he would not shoot his friends. In short, there was reasonable doubt in this case where the conviction rests on the testimony of Trayvon Brown Nelson, a violent felon with a clear motive not only to rob one of the victims in this case, but to place the blame on anyone other than himself. This reasonable doubt argument dovetails with the second issue that counsel should have requested an accomplice instruction so that the jury would have reason to apply even greater scrutiny to this incredible testimony. IPI 3.17 should be given if the witness rather than the defendant could have been the person responsible for the crime. This IPI wholly aligns with the defense strategy to persuade the jury that Trayvon was the killer here and not Davis. There was no valid reason to omit it. The state's argument on appeal is that such a request would have enabled it to seek an accountability instruction. But as the trial court rightly found, accountability was not an issue here. The state's position at trial was that Davis acted alone. And Davis' position at trial, and now, remains that Trayvon acted alone. Accountability only comes into play when two defendants provide aid to one another before or during the offense, not after. While an accomplice participant has performed some action that relates to the offense, that participant may be accountable, but only if the participation is before or during the offense. Davis was prejudiced by the jury not having this instruction. It cannot be understated how significant the accomplice instruction is, and in turn, how significant the lack of this instruction can be. Had it been delivered, the court would have told the jury just prior to beginning its deliberations that the testimony of the state's primary witness, the only one to say that Davis was the shooter, was to be treated with additional scrutiny, suspicion, and caution. It is not difficult to envision such an instruction impacting the jury's deliberative process. Where the state's case against Davis turned almost entirely on the credibility of Trayvon Brown-Nelson, a reasonable probability exists that the outcome of the trial would have been different and the accomplice instruction, had the accomplice instruction been delivered. There were other, I'm sorry, Your Honor, do you have a question? I do have a question for you. How do you deal with the warning of the instruction that says when a witness says he was involved in the commission of a crime, does that present any problem to you? It doesn't present a problem because the committee comments to that instruction specifically require that it be given even when the witness denies participating in the defense. So the committee envisioned this exact scenario when it came up with these instructions. Okay. There were other objectively unreasonable decisions by counsel, including not cross-examining the firearms witness at all, allowing an unqualified witness to testify about cell phone geolocation data, and failing to ensure that Dates' status as a parolee and access to Khadijah Graves' gun was not before the jury. The failure to offer the accomplice instruction was prejudicial on its own at a minimum, but combined with these other errors prejudiced Davis because this was a very close case. These cumulative errors rendered the outcome of this trial unreliable and fundamentally unfair. In conclusion, Trayvon Brown Nelson planned an armed robbery. He and O'Neill spent the entire afternoon and most of the night with Thomas drinking and doing drugs. Thomas was not included on any of the text messages and had no idea he was being targeted in this way. The violent plan went awry and Trayvon chose the nearest person to take the blame. Trayvon's testimony is incredible and should not be viewed as sufficient to uphold this conviction. Further, the jury should have been given instructions to view Trayvon's testimony with additional caution and suspicion, which would have aided them in accurately assessing his credibility. The prejudice against Davis for this unreasonable omission cannot be overstated, for the outcome completely hinged on the jury finding Mr. Brown Nelson to be credible. For these reasons, and those outlined in the brief, this court should either reverse this conviction outright or remand for a new trial. Any other questions? No, thank you. Thank you. I believe we have time for a rebuttal. Good morning, Your Honor. Counsel. My name is Nicholas Atwood, and I represent the people of the state of Illinois in this matter. The defendant has raised a number of issues, so I'll just take them in the order that they were presented today. The first claim the defendant makes is that he wasn't proven guilty beyond a reasonable doubt, and he primarily bases this on a credibility determination made by the jury of Trayvon Brown Nelson. And I think it's important to remember, when we're on appeal, we're looking at this evidence in a light and most favorable state. We're not retrying this case, and we're deferring to those credibility determinations because they had the opportunity to observe these witnesses in person. And the defendant first argued that Trayvon lacked credibility because he was intoxicated and he exhibited bizarre behavior. We don't dispute that he exhibited bizarre behavior or that he was intoxicated, but importantly, that's not a basis for lacking credibility. It simply goes to the weight of one's credibility. Importantly, we don't know how intoxicated he was. There was no blood test done or anything like that. And I think what's really important for the court to know is that he was sitting in this vehicle when the defendant brandished two firearms and murdered two people right in front of him. And he also believed the defendant was going to kill him. He was clearly in a state of shock, and that continued on after he drove around with the bodies in the back of the car and in the passenger seat because the officer's body-worn camera showed that he was still in this excitable, scared state. He even asked the officer if he could have a hug. So clearly, this was a man who was alarmed and feared for his life and was having difficulty rationalizing what he'd seen. But he fronted all of that to the jury. They heard all of this evidence. And they found him credible. And they found him credible in part because, you know, as our courts have determined, when you see something that's shocking, there is a still capacity for reflection. That's the basis for our excited utterance exception to hearsay. Sometimes, even if you're intoxicated, you see something shocking, you remember what you saw because time slows down. And I submit the jury used their common sense, and they considered that. But they also considered how all of his testimony was corroborated by independent evidence. Trayvon said the defendant got out, and he shot from the rear side of the rear driver's side of the vehicle. All the bullets went left to right. He said he went around to the right side, and he used the word, finish them. But it's apparent that he may have missed. And we know that there's evidence that he went around and tried to finish them from the right side because there's apparently a bullet strike on the back of the rear of I think on the, whatever that is between the glass and the back window. So there's evidence supporting that. Additionally, he said there were two guns used. We found 9mm and .45 caliber firearm shell casings at the scene. He said that Khadijah drove him away from the scene, Khadijah being the defendant's girlfriend, and she drove a white car. There were tire marks where the vehicle was parked in front of the area where the shooting had occurred, and the flop cameras recorded her leaving at around the same time from that area. So there was significant independent evidence that corroborated every single thing that he testified to. Was it weird that he drove around with these two dead bodies in the car? It definitely was. But is that evidence that he committed the murder? Notably, the blood splatter pattern is all along the right side of his body, indicating that when the guns were fired, the blood splattered onto him while he was still seated in the car, not from outside the vehicle. A forensics expert testified that there was no evidence of stifling or anything like that on the bodies, which meant that the guns were fired from at least 18 to 24 inches away. If he had fired, turned and fired from the front driver's seat at these individuals, there would have been evidence of stifling while he was seated right next to him in the passenger side. So we have to consider all of that evidence. In light of his bizarre behavior, does it really outweigh all of this corroborating evidence? I submit to you that the jury found that it did not outweigh that evidence. Moreover, what other evidence do we have of this defendant's guilt? First of all, he fled from the scene. His claim was that he wasn't there at all, but we know that his cell phone data indicated that he was. And what did he do with the two firearms? First he stashed them at his Uncle Johnny Carter's house, and then when Johnny came home, he happened to come home while the defendant was retrieving them. And then what did he do? He bleached the guns to destroy the DNA, and then he followed Johnny to the lake to dispose of them. Initially, the defendant said he never went to the lake and he didn't have the guns, but of course the flawed camera data proved that wrong because the defendant was in exclusive possession of the red Chrysler that followed Johnny's truck to the lake, and then the two firearms were found in the lake. Now importantly, and this gets a little bit to the accountability instruction, it was a reasonable trial strategy not to seek that instruction for precisely the purpose that you're talking. In People v. Hollingsworth, they quoted Justice Shaffer in People v. Parks, and he said, it is quite unfair as a statement to a lay jury, not lawyers, not the committee that comes up with jury instructions, a lay jury, it uses the term accomplice witness, and by doing so it tends to tell the jurors that the defendant participated in the crime if it does not actually tell them that he did so. So when you bring in the fact that I'm accountable with this witness, you're tying yourself to a crime. The theory of this case was he wasn't even there, and the only person who could definitively put him there was Trayvon, whose credibility has been attacked for various reasons. That's a reasonable trial strategy because the State requested an accountability instruction. If you say this is my accomplice, you open the door for that. On page 588, 589, the parties discussed back and forth about it, and the judge did say there's not evidence for accountability here, but it was only because defense counsel had not argued that that was the theory of the case. There was some evidence that could be used to support it and certainly create reasonable inferences. They said they would revisit it if counsel made such an argument, and so the fact remains. Counsel argues, well, he only, accountability requires aiding and abetting during the commission of the offense. Well, I think that's meritorious for two reasons. First of all, he got rid of the firearms, right? And so the commission of the offenses, this murder occurred, and then he's disposing of these firearms, aiding and abetting Trayvon. That's one continuous force of conduct I would submit to you. Second, and devastating for a defendant's case if he were to request this instruction, there's two firearms. If he says this guy is an accomplice, the jury and the State are going to argue and reasonably infer, oh, one gun for each guy. That would explain why he bleached the firearms, because his DNA is on the firearms, because he used them during the commission of the crime. It's much easier for the State to prove this case with an accountability instruction, because it's very logical. The jury is going to make that reasonable inference. The State is going to make that argument. And so defense counsel did not want to open the door to that. She wanted to rely on the fact that the occurrence witness may lack credibility. There was no definitive proof that he was there. She had the help of the girlfriend, Khadijah testified that she was with him, but then that fell apart. She was proven to be lying. She said she took a new Aurora when she hadn't. Other evidence ended up disproving that theory. But the fact remained, counsel only got the facts that she has to work with, and she made the best argument she could. But if she requested that accomplice instruction, that accountability instruction, it's a very low bar to bring that in. And so I submit to you, that would have made it much easier to prove beyond a reasonable doubt, because it easily explains why would he go to the trouble of bleaching the firearms if his DNA wasn't on them from using the firearms. It makes no sense. It also works in the context that he had both firearms, and he used them. If he would get any other situation, it just doesn't support counsel, and I think it lowers the bar for conviction. And so one of the other things I wanted to mention, Johnny Carter, when he testified, counsel noted that he thought this might equip the defendant. That's why he had him throw the guns in a lake where they could be found. That wasn't the defendant's understanding of any of this, and Carter obviously wasn't a witness to the crime, so I don't put much weight on that. Another thing I wanted to mention before I get into the other issues, there was a typo in my brief. I cited Illinois Supreme Court Rule 410, which counsel pointed out there is no Illinois Supreme Court Rule 410. I meant to cite Illinois Rule of Evidence 410, which discusses using pleas as evidence against the defendant, and I submitted to the court that it would be equally improper to use that against the state. Defendant argued in the appellate brief that the state was willing to negotiate during the trial, which meant that it clearly didn't have faith in its own case. I just think that's an improper argument to make on appeal, so it's not evidence of anything, and it certainly wasn't evidence that was before the jury, so I just ask your honors to ignore that. Regarding the testimony of the forensic expert, Haley, the firearms tool marks identification, FRIE has established, it's generally accepted, that these tool marks can be testified to. It's not new evidence. Counsel wanted to argue that some studies that were cited in federal cases from 10 or 15 years ago were relevant for her to cross-examine the expert witness and try to reduce the effect of that testimony. First of all, the federal cases use the Daubert standard, which is a much more stringent standard to meet than the FRIE standard. The FRIE standard is just general acceptance of those principles. Secondarily, the case that the defendant relied on, Williams, was a second district case. They gave the opportunity to cross-examine there, and they found that, look, there's no reason to challenge this. This isn't a new theory of a case or a new theory of this evidence, and all this evidence is already admitted through cross-exam. Now, in this case, there wasn't an extensive cross-examination, but there was an 11-page direct examination that got into all of these details, including the microscopic analysis that compared these firearms. But importantly, what I want to note for your honors, it wasn't relevant to the theory of the case to challenge whether these were the firearms or not, and that's, one, because the defendant said, I wasn't there. He didn't say, I was there and I didn't use these guns. And second, even if you took that evidence out, there's not going to be a reasonable probability of a different result, because look at the chain of evidence we have tying those firearms. Two firearms used at the scene, 9mm .45 caliber, those are the two firearms the defendant had at his uncle's. Those are the two firearms that the defendant cleaned with bleach. Those are the two firearms that the defendant threw in a lake. It's an unbroken chain of custody showing that these were the firearms that were going to be used. So is this extra evidence from the expert prejudicial? I would submit to you that it's not, because the jury is going to make that connection anyway. I see that I am out of time. Do your honors have any questions about remaining issues that you would like me to address? No, thank you. I will ask that you affirm the defendant's conviction and sentence, and we'll rest on our brief for the remainder. Thank you. Thank you. All right, your honors, I just have a few points that I would like to make in rebuttal. First, is any reasonable doubt argument comes with the qualifications that, of course, the juries or the fact finders do not have? Well, I think it's fair to say that the jury's determination is not unfettered. I think it's fair to say that the jury's determinations are entitled to deference. But it's not unfettered deference, and this Court is certainly empowered to take this review of the record with all of the reasons that I have described and find that the jury came to the wrong conclusion. Secondly, there is zero evidence in this record that Khadija Graves is the one who drove Mr. Davis away from the scene. That is not what Mr. Trayvon Brown Nelson testified to at all. This is in the record at page 195. He says that Davis gets into the car himself and drives away from the scene. There is no evidence in the record that Khadija got in the car and drove away. This Court should not find to the contrary. The argument about whether Trayvon was in the front driver's side seat when he shot or whether he was outside, the fact remains he admitted that he gets out of the car. So when he gets out of the car, on the left side, on the driver's side, he would have been 18 to 24 inches away or farther than 18 to 24 inches away if he was, in fact, the shooter, which explains the blood splatter and it also explains the gunshots going from left to right. The evidence of flight, frankly, is equal to both because, yes, Davis did go away from the scene, but so did Trayvon Brown Nelson, and additionally, he called his girlfriend 24 times during this 30 to 40-minute ride after the fact, and what does she do? She packs the suitcases, loads up the car. So the fact of flight is equally applicable to both of them, and also remember that Mr. Davis turned himself in. He surrendered. So there is not this flight where he has to be chased down to be brought in to justice. He comes in. He knows they're looking for him. He turns himself in. Additionally, I want to point out that two of the state's cases about this particular concept, Soto and Harmon, in those cases, there was undisputed proof that the defendant was the shooter. In Soto, there was surveillance footage clearly showing that the defendant was the shooter. The court relied on this after-the-fact evidence, the flight, the disposing of weapons, in order to look at those defendants, the state of their minds, to establish whether or not they had a reasonable belief in self-defense. We do not have undisputed proof here of who shot the guns. The idea that the word accomplice is simply too damaging should not be given any credit at this point. We know that Mr. Davis was involved somehow because he cleaned the guns and he disposed of them. We know he's involved. That doesn't make him accountable. Accountability and accomplice, there is some conceptual overlay, but they are distinct concepts. And accountability, again, as the trial court rightly found, was not at issue here. There were two firearms, and remember, it was Trayvon Brown Nelson who specifically wanted to go get the firearms with Andrel O'Neill. He texted, or yes, Trayvon texted Rashawn Voorhees that he and O'Neill were about to go get the guns. This is about two hours before the shooting. So the fact that there were two guns does not necessarily mean that it was Mr. Davis who had them when we have a text message from Trayvon Brown Nelson specifically saying he's going to go get the guns at 1.30 in the morning. Lastly, I would like to point out that John Carter is a credible witness. His uncle, there's no disputing the fact that he seems to be a hardworking citizen who went to the police because he thought that his nephew was innocent, that this information would be exonerating to happen. That is, he's the most credible civilian witness in this case. With that, Your Honors, if there are no further questions, I'll briefly conclude by imploring this Court to look at the entirety of this case and find either reasonable doubt or that the evidence in this case was so close that the outcome is unreliable and Mr. Davis should be granted a new trial. Any questions? Thank you. Thank you, Counsel. Thank you. Obviously, we'll take the matter under advisement. We will issue an order in due course."
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