mr clerk call the next case please next case being people versus thomas gatch we're ready when you are didn't want you to wait sorry good morning your honors my name is chris evers from the office of the state appellate defender representing the appellate mr thomas gatch in today's appeal could you give us your last name again i'm sorry evers ev as in victor ers thank you may it please the court as always i would welcome direction from the court division if particular or nuance of mr gatch's appeal that you'd like me to focus on the first but otherwise my plan is to initially rest on our briefs on our first issue that the evidence was insufficient to sustain the conviction and then the alternative our third issue that the trial court's error of not giving the proper instructions to the jury during voir dire under rule 431b mandates that he get a new trial but i want to focus on the second issue we raised mr gatch's fourth amendment rights were violated which means that the motion to suppress the additional evidence and the acquired knowledge from the police should have been granted and not allowed to trial because the police came to his apartment to arrest him with no probable cause and there were no circumstances that would have authorized a warrantless entry into his house if you're going to start with that issue do you believe you properly preserved it yes it was fully briefed and a suppression hearing was held and that was going on it was not necessarily mentioned in the motion when we trialed but under enoch it was a constitutional issue it was discussed and this is something that is appropriate for this court to hear on appeal as you are sort of reviewing a full transcript of this and can make that determination then again staying with that issue yes you've got it's the middle of the night there is clearly a fire that occurred in the stairwell absolutely everyone agrees to that set by an unknown person and a neighbor identifies this defendant as being the likely person who started the fire after watching the video yeah the two building management individuals told the detective after watching the video that that's mr gatch which is true because he was on that video in the later video clips of course and why do you contend that that was not sufficient for the police to enter the apartment of that individual okay and i don't contend that again within a few minutes of when all this really occurred well two points judge so there's the probable cause issue which keeping in mind the detective made this determination about two hours after that fire was set so this is not a matter of five or six minutes and then the police are there but for the probable cause issue some of the best evidence of that is that the idea is that a person of reasonable caution would have committed that offense this was a process of elimination case here this video the unknown person goes in the direction of 3b and 3a the detectives know that but there's kind of a jump to judgment there the building manager is saying that that's mr gatch the detective said you can't see the individual's face the clothing is different for that so that is kind of a jumping the gun and the state's own authorities have been quoted or stated in the briefs that are talking about bauer and james talk about much more specifics in both of those cases a specific defendant fought or argued with the victim of the arsenal only twenty thirty minutes before the arson was set the arson was set in a very specific area that that defendant was known to have access to in which case his own townhouse but not away from him but towards the two other residents or an apartment of the victim that he had a key to but had gotten into the building without permission so that was a narrowing that's more but here we know that that the person that they identified lived in the building yes lived on the third floor had access to the stairway and was identified on the surveillance video by the caretaker in the building who was familiar with the defendant so where do you go from there okay i guess part of it is the identification aspect now we keep saying identification the detective just said that but what the detective said is that they told him they saw mr gatch and knew him and there's no doubt mr gatch is in that stairwell approximately twenty minutes after the fire that connection is not as specific as the case decided by the state that i've been discussing here but i understand that this is a narrowing here and the idea is that apartment 3b and 3a not knowing who all the residents of 3b might be we're arguing was insufficient for the probable cause finding but even if this court agrees that there was probable cause for the detective the issue was whether the police had the ability and right to go through the door of mr gatch's apartment 3b with no warrant and that's one of our most highly protected things in the constitution your honor the first time whether they had the right the first well exactly your honor the courts only wrote the second time the second time's in the circuit court we won't chase you it didn't back in time okay we don't want you to change anything about that of course but yeah the first time and there was clearly no warrant and so what the prosecution argued at the trial there there was an exigent circumstance and this is a very specific limited exception which did not exist under the facts of this case are you talking about the community caretaker exception i will and planning to your honor because we've fully briefed out in our opening brief that state did not seem to respond and they were clearly going in to arrest that's police investigation that's not what the community caretaker provision is about of course here though the circuit court in it's finding seemed to focus exclusively on a single sentence about that he was upset or sad on the day before which the detective learned from the two building managers some indetermined time talking about the loss of a lady friend in their words who had taken her own life but that was some unknown time in the future this was approximately two hours after the fire was set and the court elevated that unknown emotional setting of the individual of mr gatch at best to that they must go in the apartment right now because the detective testified basically he's going to start another fire to either harm himself or try to set this whole building on fire and that is a leap too far based on the information that he has and that goes to the factors that are listed first in the illinois supreme court and foskey they went through a variety of factors not all need to be there but mr gatch was not armed there's no evidence of that one of the things they look at the most is the grave nature of the crime the violent nature but he wasn't armed but possibly he had the capability to set another fire and that's what's more specific to this case well that's true your honor but the video itself shows that the individual they're kind of putting a small plastic bag down that you can get in any drug store and a fire started this was not cans of gasoline being thrown around not an incendiary device every one in that apartment building had the same means to start a small fire assuming that they had a lighter matches or any other common household items so there's no information which foskey discussed about knowing a specific record or a homicide or a violent beating taking place which are the nature of the cases discussed when they mean violent to nature the police the detective's own words also kind of cut against that they went up there he was scared or feared for the worst when he knocked at four o'clock in the morning and no one answered which is not an uncommon experience and he forgot to check for fire when he went inside that's the detective's testimony so that being some concern i have to go in there without a warrant even though getting a warrant in city of chicago there's twenty four hour felony route to get that process started he wasn't worried enough to actually check for the fire which is his reason and rationale for going in that doesn't rise to the level of exigent circumstances from the cases discussing foskey and it's not enough to overcome the powerful protection of the fourth amendment for someone's own home to going in without a warrant well did he have to have a continuing concern when he went into the room or the apartment and found the defendant asleep on the couch he had to have a concern to go through the door without permission from mr gatch it's really just really crossing that threshold that we're talking about there well that's what i would think the focus would be but now you seem to say that he needed to have a continuing concern when he got in the apartment well if the only concern that's been expressed in that the court found that a fire was going to be started seeing mr gatch sleeping there doesn't delay that concern him seeing there maybe him sleeping he may first see him so shows where she is but if they're concerned that the fire had already been started that is what they testified to that is what the circuit court expressly said when finding those exigent circumstances and so choosing not to search for it i'm just saying is demonstrating that maybe it wasn't as pressing a concern as possible and under foskey in another case to discussed by that none of those situations rise into exigent circumstance there's such a leap there and the idea of just being upset the day before also doesn't seem to suggest that yes this person is going to be setting another fire two hours after the first one there is a lot of missing leaps of logic to get that as necessary to go in without a warrant which is what we're asking this court to find today assuming that we don't find for you on your first two issues the third issue the 431b violation yes the remedy that's available is dependent upon whether this was a closely balanced case or not now the question i have for you is you suggest that this is a closely balanced case why variety of reasons your honor certainly that the identification at the end of the day was not i saw mr thomas gatch and his face right there we're already talking about as mr ceniceros admitted he doesn't know who the person in the dark clothing is they have reached to that conclusion and the jury of themselves are telling us that they ask about the clothes the dark clothes that they wanted to know what was going on with that they asked about the testimony of mr ceniceros to get a transcript of that was sent back and given that the admonition that was not provided the defendant has no obligation to present any evidence at all and they are now talking about evidence that they wished that they had that they don't have that shows that it is potentially closely balanced in the juror's mind and that's really the issue for closely balanced it's not you're suggesting we can read jury notes to determine whether it's closely balanced well i'm saying that it's certainly something that the jury is communicating does a jury note say we're split that's not the evidence i'm asking for but it's demonstration that the evidence itself wasn't as clear cut if they didn't need other questions or had a bunch of questions they wouldn't ask for that but closely balanced doesn't mean there has to be two equal competing narratives the error was not giving this precise instruction the jury itself was talking about evidence that wasn't presented and given that there is no straight forward identification there is no forensic evidence that exists in some of the other reasonable doubt cases that are discussed by both parties earlier in our briefs is it your decision then that on your third issue and following up to justice hoffman's question the evidence doesn't necessarily have to be closely balanced in the sense that there's evidence on one side and contradictory evidence on the other side as opposed to just being very weak yes it's closely balanced so the jury could be going is really agonizing for lack of a better term to kind of what the decision they're going to make for that too and the nature of criminal prosecutions and our constitution allows the defendant doesn't have to resolve evidence closely balanced can't mean there has to be evidence from both sides that's not what the constitution allows for or protects against so yes it's that it's weak it's not clear this error mattered in how the jury reached their decision and given that those are the only twelve people who truly know how they're going back and forth the reason i brought up the jury instruction is because it's the only little insight we have but if it's so overwhelming there's indication they wouldn't need to ask about something they could just make their decision but yes justice hoffman to answer your question i do believe it is closely balanced can't we ask you in the time remaining to just briefly address the first issue of course your honor i mean this case is a little bit like a game of clue and it's all circumstantial yes your honor and you do have somethings recorded in video yes the transcript is not as helpful as perhaps a reviewing court would like in terms of how it was presented at the trial in terms of identifying different frames of the video et cetera yes your honor but all that being putting that aside the jury sat and listened to all this and we have a strict rather stringent standard to review this in light most favorable to the prosecution and why do you contend that when you view it in that light the jury couldn't put all these pieces of the puzzle together and say it must've been him okay your honor so in the light is favorable to the prosecution is all reasonable inferences but it's not taking all the evidence the way the state wants you to take it and that's really what we're focusing on here we call it speculation the unknown person in the dark clothes went off screen on the clips one and three basically somewhere between 3b and 3a that is multiple people there there are two different apartments there and so the idea that we don't have a clear identification we have no forensic evidence the only other person who testified who wasn't a police officer or a fire marshall has a motive and even contradicts themselves i know it wasn't phillip my partner but i didn't wake up until this fire was already set the fire we're talking about was already there we're saying that that rises to the level of speculation and certainly the cases decided by the state and we even talk about our brown's law and brown there is that there's a lot more for the circumstantial evidence because you can create a story because you can create a narrative and want the jury to adopt it doesn't necessarily mean that that's sufficient circumstantial evidence that this is something the court should allow to stand and that's the argument we're making here there can the state make a narrative they did absolutely i understand that but given the authority that deals with circumstantial cases there wasn't no threat from mr gatch there was no clear identification there was no forensic evidence and there were two apartments accessible by that person in unknown dark clothes that came off there and given that that doesn't rise to the reasonable doubt standard that we want to put someone in jail or prison for a period of time and if there's no additional questions from your honors i will reserve my time thank you thank you counsel thank you state may it please the court counsel my name is claire wesley conway i'm an assistant state's attorney and i represent the people to the state of illinois in this case i'd like to address the first issue that the defendant raised in his speech which is the sufficiency of the evidence the evidence in this case established the defendant's guilt for aggravated arson beyond a reasonable doubt the videos in this case obviously narrow the focus and it's more a case of which image we try to eliminate the possibilities of other people who have an access and living in that apartment building to have committed this offense and the videos in this case they clearly show that the arsonist came from the area of apartment 3a and 3b 3b is occupied and leased by the defendant himself solely there's no evidence that anyone else ever came or left that apartment that day the maintenance worker who testified at trial testified he reviewed the videos there's no one else coming from that area we have the testimony from craig martin craig martin is the occupant of apartment 3a he shares that apartment with his partner phillip robinson craig martin testified that neither he nor phillip robertson left the apartment at any point your opponent would say that makes no sense because he testified he was asleep so how would he know whether phillip left the apartment or not correct if he was asleep but when he woke up his partner was right there okay yeah yeah and there's evidence that his partner is africanamerican and defendant in this case and the video would submit that it was not someone who was africanamerican how do you assess so the jury i'm sorry sorry ms conway sorry how do you assert that the video demonstrates the race of the suspect the video is terrible quality and you maybe for a millisecond you might see a shadow of a face i mean in terms of starting the fire you don't see a face at all right correct correct so the only time you see even remotely you see a face in the video is between the two apartment from my view of it it's consistent with someone who is caucasian and then the jury got to be able to view that and from its verdict obviously found consistent with that the jury was able to view the testimony of craig martin we don't have a description of craig martin and how what his make and size and everything like that was from the record but the jury had that before that so the jury could see if the defendant matched the size and the shape and the frame of the arsonist in this case from the videos and that's exactly what the maintenance worker did in this case he said is there anything distinctive about what you see in the video in terms of an anomalous physique or anything like that it could be any number of average people couldn't it correct it could but again his testimony doesn't discount the defendant again it's a process of elimination where we're narrowing the focus onto the defendant and the maintenance worker said yes that he couldn't identify the defendant from that still shot from the video but the defendant was the same shape size and height as arsonists in this case again pointing towards the defendant i'm not saying explain to me that's the linchpin of like oh we win at the best one of those it's all a matter of steps that are taken and all the reasonable inferences that can be made from the evidence in this case so we have his testimony we also have the testimony from the maintenance worker that he watched the video from camera eight and he was able to determine that the person walked towards the defendant's apartment upon returning from setting the fire and approximately twenty minutes later we know the defendant was in his apartment twenty minutes later after setting the fire because he changed his clothes and then he walks out of the hallway that time he's not so disguised then he walks down to the same exact stairwell where he just set the fire and the firemen are still there consciousness of guilt changing the clothes walking past there then he goes down to the lobby and he spends a significant amount of time with the two maintenance workers who are trying to remedy this situation and watches them as they're viewing the videos of this case all of this evidence twenty minutes after he sets the fire actually shows his consciousness of guilt he was there he was available and it could have been him from this and all of this evidence narrows the focus on to the defendant as the arsonist in this case because we know that there arsonist didn't come from 3a cause it was either 3b or 3a we know it's not 3a and the jury accepted that and any prongs that this court may have regarding the credibility of craig martin in this case the jury resolved that and those are issues that the jury have to resolve in this case cause they saw his testimony and they could too determine from his testimony whether or not he could have been the offender now at trial the defendant asserted a defense that it wasn't him it was somebody from 3a now in appeal he asserts for the first time that it could have been there was someone perhaps in his apartment at the time that set the fire there is absolutely no evidence that there was anyone else in the apartment with the defendant there's no video evidence the video was looked at by the maintenance worker he said he did not see anybody else come and go from that area and the defendant lived in that apartment by himself so we submit that the evidence established all right look i think he only had five people testify correct you've got mr barker the owner who wasn't there correct you've got mr martin who was asleep with phillip yes and then you have the arson investigator who was on the scene after it all happened yes and officer granadon who also didn't get to the scene until after everything happened correct yeah they were investigating so the only person left is mr ceniceros correct and let's just talk about him for a minute okay all right he's the maintenance worker right he's the one who identifies says i looked at the video i recognized the defendant right well or something are you talking about at trial or are you talking about the motion at the motion at the motion okay so if we're going from to the motion there's testimony from the detective who spoke to him and from the detective testified that the two maintenance workers both told him that's the defendant and the defendant the whole role of the defendant's knowledge at that point is based on mr ceniceros fingering the defendant off the video right well the detective when he appeared on the scene he was able to view the video and then he but he doesn't know the defendant correct okay and then he also spoke with the two maintenance workers who he relied upon their statements to him that that's the defendant that's the extent of we know but the defendant is i'm sorry i'm sorry i misspoke the detective is looking at the exact same video right correct and the defendant is looking at the video that you can't identify anybody in that video so how does he have sufficient knowledge to bust in the door because and if you're concerned about the fact that there's not an id of the defendant from those videos then i would submit that you would look at the two cases that i cited to which is james and bauer in neither of those cases there was an eyewitness identification of a defendant who had been in fact that he committed the arson for probable cause they found there was probable cause in that case in the absence of any eye witness testimony saying that's the defendant so because it's probable cause it's not proof beyond a reasonable doubt it gives the officer enough reason is it the state's position then that probable cause existed because someone who didn't see the arson being set went to a detective and said i think oh it was probably that neighbor mr gatch because he was upset about his girlfriend and that's sufficient or was there more when you say probably i mean i don't know he doesn't cite the exact words of what the two maintenance workers told him the detective testified those two people identified the defendant from the video okay and they were concerned cause you have to remember they just saw the defendant coming down twenty minutes later okay so there's suspicions were let's just say they were they were suspicious of the defendant at that point so it's a totality of the circumstances that the officer has and what we have to look to is an objective standard for that for fourth amendment purposes what a reasonable officer would do in that circumstance based upon what someone is telling them putting aside what actually occurred all right mmhmm which was the exigent circumstances exception you think a judge would have signed a search warrant on this do i think the judge absolutely a judge would've yes yes again it's probable cause it's not proof beyond a reasonable doubt it's a lower standard that a police officer has to have in this case and as far as the exigent circumstances there's a multitude of factors that are reviewing court will look at to determine whether or not there is exigent circumstances in this case do you believe the circuit court correctly ascertained that the community caretaker exception apply i didn't feel like let's just say the community caretaking exception is something that i didn't find that we could meet meet cause it doesn't apply if you're investigating a crime which seems to be what they were doing yeah it's meet it was hard for us to meet i think that burden truly i think what happened in this case is the arson investigator got there after an investigation was done by the by the fire department and as far as the amount of time that transpired between the fire and the time that they actually entered the defendant's apartment they entered it at the fire occurred at one hundred and fifty am approximately and the detective entered the defendant apartment four hundred and five am if there was any inexcusable unjustifiable delay on the part of the police officers they had to wait until the fire department conducted their investigation they weren't even contacted until the fire marshall got in there and said that it's an arson and there's been an incendiary source so then i don't know what time the fire department did their investigation and contacted the police department based on the record but we do know that when the officer the detective arrived at three hundred and thirty five am that he spent that time between i'm sorry three hundred and thirty nine am between three hundred and thirty nine am and four hundred and five am that he spent that time viewing the videos and speaking to the two maintenance workers so there's no unjustifiable delay on the part of the detective in this case where he could have secured a search warrant some of the other factors that you look at is whether the offense under investigation was recently committed we submit that it was recently committed while a grave offense is involved particularly one of violence arson i don't know if it's under the definition of a violent offenses in the statute but i would consider it to be a violent offense with a potential for a huge loss of life in this case whether the suspect was reasonably believed to be armed i don't think there's any evidence that the defendant was armed in this case whether the police officer were acting on the clear showing of probable cause we submit there was a clear showing of probable cause whether there was a likelihood that the suspect would have escaped if not swiftly apprehended i don't think that we could actually establish that but there was a strong reason to believe that the suspect was still in the premises because the two maintenance workers informed the detective that he was still there in the time you have left let me ask you to do address go back to justice hoffman's question about the closely balanced evidence sure and the allegedly improper jury admonitions correct yeah obviously we have conceded that the the jury admonition in this case were improper they did not meet the requirements that have been set by this court so then we have to look at obviously the defendant didn't preserve the issue we look it under the lens of forfeiture and the defendant has the burden of showing that the evidence was closely balanced on the first prong well so why is the evidence greeny and very very difficult videos and the face cannot be determined from the video certainly not the video of the setting of the fire correct so the only thing you've got is what's his name ceniceros yeah the maintenance worker saying that's him correct that's it no i mean no it's a little lust in that isn't it well no actually what i think is there's a lot again this is the process of elimination because we don't have just one video we have a series of videos in this case right okay so the first video shows someone leaving either from apartment 3a or 3b yeah defendant clearly lives alone in 3b and there's two other people who live in 3a both of those people the evidence established that those people did not commit that crime and the jury obviously accepted that i'm not sure that the evidence established that if you're suggesting the evidence established that phillip didn't commit the crime because his roommate who said he was sleeping said he never left the apartment i don't think the evidence established that philip is out of the woods other than your interpretation that the person in the video is not an africanamerican well and your honor obviously understands that what we have to do at this juncture is view the evidence in the light most favorable to the prosecution well there's no question about it in the light most favorable to the state seems to me to be that you've got ceniceros saying the person in that video is the defendant correct but the jury saw the same video yes right right and it's one of those things again this is a process of elimination okay there's no evidence there's no evidence that either of the people in 3a committed this arson there's none but there's no evidence that they didn't that phillip there's no evidence that phillip did not commit this arson other than your interpretation that the person in the video is not an africanamerican correct it's a reasonable inference from the record well i'm not sure that's a reasonable inference but the fact of the matter is that makes all the more difficult in dealing with the fact that this trial judge never told these jurors that this defendant wasn't required to present any evidence correct so now we've got a jury sitting there that hasn't been told this defendant doesn't have to present any evidence and i suppose as to phillip the jurors are inquiring well why isn't there any evidence that somebody else did this crime well and let me just say he didn't admonish them during voir dire about the fact that the defendant doesn't have to present any evidence but there were jury instructions in this case provided to the jury which would have informed the jury that the defendant didn't have to present any evidence but first of all if it is a 431b violation and the evidence is not closely balanced there being no prejudice there's a reversal and a remand for a new trial that's sebby and people versus thompson i mean that's it if it's not a closely balanced case this case goes back for a new trial you know that and i know that oh correct i understand that's what the law is but we're submitting that the evidence in this case wasn't closed balance was not closely balanced right and the defendant hasn't established his burden of establishing that he hasn't established that there was a reasonable alternative theory of this oh he doesn't have to establish the alternative theory and he has to establish for to establish that there was a closely balanced case i mean i'm not saying he has to do the trial but at this juncture he has a burden here you know we established the defendant's guilt he has the burden now so at this point he has the burden of establishing something the burden's established if from the record even viewing the evidence in a light most favorable to the state a reasonable jury could have come to the conclusion that you failed to meet your burden of proof on the issue of identification end of story correct but we submit that the evidence was not closely balanced in this case oh i understand what you're saying because the defendant's argument relies i think upon speculation and that's why in order to find that the evidence was close to balanced i think you have to engage in some type of speculation and that's not viewing the evidence in the light most favorable to the prosecution i don't think they've engaged in speculation the only thing you have to say is could a reasonable jury based upon this evidence had made a determination that the state failed to meet its burden of proof even if we accept all the evidence in its light most favorable to the state i suppose what i'm having difficulty with is you can't see anybody's face on the video it could have come from one of two apartments so they say we've got one person who is i think unaccounted for and that's phillip and you've got ceniceros saying the person in the video is the defendant exactly i mean i think that's it that's the whole case right exactly but again i think it's one of those things where you have to narrow the focus and also you would in that scenario you're not appreciating the fact that the defendant afterwards went changed his clothes went down walked past the firemen as they're trying to still put out the fire and goes down he's the one phillip not up phillip's not around it's the defendant who is doing all of those actions that establish his consciousness of guilt in this case well i don't think we know that the defendant from the evidence of the case the defendant changed his clothes yeah unless we believe that it was the defendant in the video to begin with well and again cause all we know is the guy the defendant wearing a light colored jacket and a baseball cap walked downstairs and walked past the firemen right and again i request this court to look at the evidence in the light most favorable to the prosecution and not employ a reasonable hypothesis of innocence which the defendant is seeking for this court to do well you're not making the argument at any time we look at the evidence in a light most favorable to the prosecution it necessarily means the case is not closely balanced you're not making that argument no i don't think that i think that's one of those things where again when you look at the evidence that the jury has already had before it that when you're looking at the whether or not we've proven the defendant's guilt beyond a reasonable doubt we look at it in the light most favorable to the prosecution that's not the measure for closely balanced well and closely balanced are you suggesting that we no longer have to view the evidence in a light most favorable to the prosecution no i'm suggesting that you can win your argument that he was proven guilty beyond a reasonable doubt and still we could come to the conclusion the case was closely balanced case correct only if you look at the evidence in a light most favorable to the state correct correct so one doesn't necessarily preclude the other i understand i understand but in conclusion we ask that this court find that the evidence in this case established the defendant's guilt beyond a reasonable doubt that the trial court's decisions in this case regarding the motion to suppress is proper and we ask that this court affirm the defendant's conviction in this case thank you thank you briefly your honors thank you just hoping your last statements got to what i wanted to say here i wanna say a few things about the evidentiary facts but there were multiple review standards here for the insufficient the evidence versus the closely balanced so the fact that we're talking so much about whether it was sufficient or not feeds into the idea that it is closely balanced even if you ultimately reject our first issue well i wanna ask a question yes that justice delort asked you before can we consider the note from the jury in our determination as to whether we believe this case was a closely balanced yes your honor it's something that took place it's something that the parties were present for that they decided what to stand back or not is the evidence produced to the jury of innocence or guilt no not at all but it does give an idea of what they were struggling with closely balanced at the end of the day is your determination whether the jurors could have gone one way or the other and it's not competing narratives about the specific error involved for that argument that they were not told mr gatch has no responsibility to produce any evidence goes to their mindset on the very error that took place there very quickly i agree the prosecutor took pains in closing i would argue the person who set the fire was white that's not clear whether that's enough to find insufficiency of the evidence it certainly makes it closely balanced when they put a large focus on that at trial mr ceniceros the building manager expressly said i do not know who is in though people's exhibit eight and people's exhibit nine which are stills from the first and third video clips of the unknown person entering there at the suppression hearing the detective testified i was told by the building workers while we were watching the video clips not the first one not the second one just the videos in general that is mr gatch which is not disputed that he is in the later videos coming down there those are the lobby videos you're talking about well mr gatch is seen leaving from behind the camera 3a 3b walking down the corridor and then talking to the building workers in the lobby those are the later video clips nine through eleven i believe your honor whether that's consciousness of guilt that's our first thing i've heard about that also firefighters responded and were making a lot of noise not far from this apartment and that's not an uncommon response to what is going on there too so i don't know if that's evidence of one way or the other but ultimately come back under all three of the issues we've raised here there is some weighing of the information to the detective or to the jurors there and we would ask you to find that the conviction was insufficient to be sustained but ultimately he does require a new trial for multiple errors that took place thank you your honors counselors thank you matter will be taken under advisement and the court is being adjourned