cases where it's probative value outweighs it's a it's prejudicial effect in this case it was minute under the guise of motive evidence to explain an otherwise inexplicable event prior to trial the state asserted that the evidence about mr selby's gang membership should come into evidence based on the theory that the victim in the case was shot by the gang because they were trying to protect a fellow gang member who was being chased by the officer at the so because they were working protection right when he said is he a name he defined protection during his direct examination he said that working protection for the gang means looking out for rivals looking out for the police and alerting the drug s that if the police arrive they should disperse there was nothing in his testimony with even remotely suggested that shooting at police officers was part of gang security he just said look you know for police right looking out for a place but i part of that hostile to that we should have police officers would seem to be counterproductive to the games purposes but it's not if i understand the purpose for which this evidence  it was to explain why mr solve and mr butler were on the porch are i i didn't understand the state to be contending that we're admitting this evidence on the ground that they planned to shoot police officers they were they were there to work protection for whatever reason right isn't there a context well i guess what i would say about that is there is no evidence at all from any party or any witness saying that shooting with police officers probably parcel again security it was very specific when he said gang security was and in addition to protected the theory was we're going to protect a fellow gang member and if this court believes that with that itself or the error then it could wind further evidence about the so called drug operation and the use of young children and older drug addicts and the drug trade was admitted in addition to the theory that this officer was shot by the gang because they were protecting their fellow gang members and we've argued that there was no evidence that any drug sales were going on which that is what integrity by the court the instruction was that mr sal he wasn't selling motive in the case it wasn't relevant and even if it was relevant it still had to be balanced against its probative value versus its for you to show a fact there was no young children are old or drug addicts out there dealing drugs for this gang there is no trust sales and more importantly here officer who testified said they saw any drug activity going on at this time point where mr spruill i was on this corner he ran from the police the impossible to a gate so the officers thought out the car and he ran but the problem is there's no evidence that he had drugs on them or a gun which is something the state repeatedly said in his closing argument oh you know he could have been on parole and yeah on parole and in violation of his curfew we have no idea why he ran from the police and to say that he was a drug seller when there's no i mean it's a bad sign listen car with any drugs no drugs were found in the area it was sweet very carefully it's not like he found it was part of the same thing that's right it was also their business was selling drugs that's right but there's no evidence he was selling drugs at that time and actually bought himself said there were no drug sales going on he's that's not drug selling that's fumbling at a gate and the reason why we're here and we have no idea but to presume that it's because he was had drugs on him with the intent to sell or maybe had a weapon on him is pure speculation and there's simply no evidence that well they talked not specifically but they did talk about drug sellers being out there that repeatedly peddle the drugs trade so no they did not specifically mentioning young children but i feel at that point that that the harm has already been done and it's been done because initially you have officer johnson testifying about the gang he gets into excessive detail about the gang we learned about the folks in the case are disciples and this is a fraction of it we find out how many people are in this particular faction none of which goes to the motive which is either to protect the fellow gang member or if you believe it's protecting the drug trade the jury doesn't need to know about evidence it was too much it was excessive and asses court it found in people the ma toy it mr back to the jury's attention from the issue at hand which is the identity of the shooter in the motive that's inherent in that question and also it's to raise it mr wrecking it's attention to other issues that are just not officer testified about feeling abuse with gang members contact card c p p files he took a class in gangs he also learned he he didn't specify who is in the hurricane said he talks about the gang hierarchy rivals what their turf too tenuous that's it that's motive in the abstract the fact that the fifty strong belongs to the gangster disciples has nothing to do with the fact of whether selby shot the officer to protect a fellow gang member so how how would the in you unexplained unprovoked yack what would the state be allowed to introduce to to explain why this occurred i think possibly you could argue that they were being members that the people on the porch and my sister but something maybe you should use the fact that the gang you know has these types of drug sellers don't use that as you know i just told evidence against the defendant but it goes back to the state having to prove that the motive here when there is a clear issue and then this this initially came in through detective johnson and then again the status of the same testimony about the predatory use of children during which a butler's testimony so the jury hearing in a second time and so you know him an instruction is given at well right i mean he testified the guns were brought from someplace else for the purpose of being with the people who were on the porch and your job was protecting gang members right and i don't think there's any dispute that but they never testified that he thought the police were actually about rival gang members that needed to be shot because they were chasing i follow gang member there's just no evidence of that in this case and it is a shot out of the dark we don't know why the shot was fired but if that goes to motive then why is all this action information extraneous that's not relevant to the trier of fact and minute before the jury it has nothing to do with the issue of a dent in the of the shooter and divert their attention away from what the question is there's no reason for it and that when they quit led in all this information about the drug operation etc the state was able to capitalize that and in their closing argument repeatedly back and forth the mode of shooting the officer to protect a fellow gay member that is to protect the drug operation there's a new drug operation going on at that time and given conflict i mean tory gang evidence says there should have been some evidence even minuscule that there's some steroid activity going on officers never testify there was drug activity richard butler the state's star witness never said there was any drug activity no they did not so we don't know what was on the other closing argument the that he was definitely holding something i think four or five times they say oh she said drugs or a gun well as a set he was on fire on this curfew it's after midnight we don't know they didn't catch him but you know for them to say this in closing argument when there's no fact house richard butler says my cousins family members but what happens i'm retracting the state elicits testimony that two of those individuals are gay members so now the jury knows that the whole house has gang members  should have been president of the jury wouldn't evidence that there were other gang members residing in the soviet household attention we help your client because one of the defenses here was we don't know who is what the basis of the minutes if there's gang and then says admissible for the limited purpose which is the state's initial theories that it was to protect the fellow gang member why are we learning all this other evidence for instance the game membership of the people in the house counsel who specifically filed a motion let me to keep that out now this is just strategic choice i'm not going to second guess him on that because birds of a feather flock together i can see why he kept that out there's no reason for it  and in addition to that he objected and was overruled so again the court is ignoring its own motion and ruling on the motion and let me you know a couple of other issues yes yes one of the issues that we raise counsel objected defense counsel objected was in the world as a consequence of that by overruling the court the defense counsel's objection to a trial court effectively sanctions the state's  presentation to the jury that sally had some obligation to subpoena people from his own house that's not his duty he doesn't have to present any evidence whatsoever that's improper burning but in shifting and that's reversible error you can never shift the burden of proof to the defendant never this was also done a rebuttal counsel objected he's overworld he gets no opportunity to speak again about this issue it was highly improper it was not invited error and you just simply the cases back to something now counsel brought up in cross examination i've seen no case that says that the state can shift the burden of proof based on something that defense counsel said during his cross examination these were the state's witnesses this is an instance where the defens presented some evidence and maybe you could argue that these witnesses are not credible something to that effect all counsel was doing was trying to establish how soon the evidence was tested so for the state then in its closing argument to say to the for it other than to shift the burden of proof it went to nothing except to prejudice selby and shift the burden to him which is not permitted additionally i would also argue that the bowstring office credibility cases have said that that has an implicit insidious effect of also shifting the burden of proof this came it is discussed in a will and also this court's case in yonkers and in those cases what happened which is exactly what happened here you have the prosecutor in initial argument oh again douching for the credibility of the officer saying you have to believe them they're not liars the courts have said this court has that in both wealth and in yonkers that amounts to burning shipping because what it does is it makes the jury think that because this is the prosecutor saying that then the danger is that the jury could rely on the integrity of the state's attorney's office in defining his judgment on the credibility of those witnesses the other problem with that is it's not us versus them the reasoning behind that it makes sense because if you think about it if you bolstering the testimony of all your witnesses saying they're not liars that's not their character the good guys the state at one point even the person themself is good guys it's the good guys being us versus them and they probably doing them up by talking repeatedly in opposing argument about the drug operation that was not going on at the time repeatedly he talked about lester he's holding a gun he must have drugs a fact in evidence they also talked about and this always plays back to the gang evidence how sad it was to shot this man because he was protecting a fellow gang member and if he didn't do it he would be quote facing in the gang no testimony the other point i would like to make is that they also match for the people as well saying they didn't make this up and in addition to that i think if there are no more questions on  contact i'd like to talk about factor inherently offense in this case and the transcript really speaks for itself if you read the sentencing transcript the first six seven pages all about accolades of the officer kno that you know appreciate and respect police officers but when it comes to sentencing the case was very clear you cannot in aggravation rely on a factor in the offense and that's exactly what happened here because the fact that the officer is the victim has already been factored into the sentencing range even acknowledge that and you know what happens he keeps talking about the officer repeatedly the thin blue line how he's out there on mother's day he could have just gone home he's protecting the community  it's clear from the record that the office that the season in the trial judge relied on the factor here and i fancy you know it was after several pages of talking about the officer and i think the case law says that if you can't it's a record you can't tell from the record and possibly this aggravating factor was used against the defendant you have to send it back for a sentencing in this case we say it absolutely was used against because he got the maximum civilian and that's where it when the maximum sentence is imposed you can't say from this record that it had no impact you know the judge doesn't talk about anything regarding the defendant who's actually getting sentence until much later in the sentencing hearing and at that point it's pretty clear what he saw a plan to do so for those reasons we would ask that you consider the issues and i'm worried and that you find that he was denied a fair trial based on the inadmissible gang evidence that was prejudicial also that he was and i fair trial from the numerous and excessive comments made during the state i'm sorry during the state's closing argument and that finally if you don't grant him a new trial that he received a new sentencing hearing brought defendant rock out onto the porch of the eighty five to building detective johnson ran by he found a gun shot that sounded like it came from the porch he then watched the defendant walk back of the house to hide those weapons they were found in the house with the defined dead who hid in the house for up to eight hours while police were ringing the doorbell and trying to gain entry the r bent and an offer to make that disclaimer to the jury i think the disclaimer was plenty to say to he was not involved in drug and he was not this is not about nine members of the folding family had been arrested previously that a great deal of ammunition and weapons had been recovered from the home all of the state's question lines of questioning were formulated to theory of the case that this was a gang i'm surprised occurring in the house and even even your honor and you mentioned that the trial court did state that this testimony was helpful to defendant because it added more people into the home prosecutor to say about the police officer witnesses victims they're out there to protect all of us they're out there protecting the citizens of chicago from an improper you're  another word for he's he's not told you the truth i guess yeah but what does the fact of their stance as we saw officer risking their lives every day protecting the citizens of the citizens of chicago have to do with this particular police officers credibility your honor he good the state's attorney was simply establishing back at him what his what his role was he was he was a police officer involved in the line of duty that night they had heard back testimony he was pursuing a criminal but closing argument comments were not anything that the jury haven't already heard that he was out there fighting subpoena power and could have bought in additional evidence to substantiate his claim the court ruled it was not shifting the burden because the prosecution was pointing to a defendant's failure to submit evidence that would tend to refute the case the crime lab people witness saying that the case was rushed and part of the crime lab people were working with the police and the defense counsel in the side by the state ed and i quote it is our position statement that the that the trial court improperly considered the fact that the victim was a police officer has no merit when looking at the entire fourteen pages of the record the trial court had just heard the victim impact statements of destructive john fan of detective johnson's wife and i believe twelve other victim impact statements that he read detective johnson was in court for the sentencing he was addressing detective johnson and indeed as your honor the chinse the state ed the trial court with explaining why the legislator established these guidelines and that is why he talked for the beginning of the sentencing about the fact that he was a police officer he was stating that the sentence is cartridge casing outside and they say that the cartridge casing was found i'm sorry was found to find out that weapon but we also know from the state's closing argument this is a gang infested neighborhood where everything's everyone's arm to a team have no idea if that cartridge case was there earlier or later but there is no direct evidence that that particular weapon was used to shoot officer but there was no evidence that any other cartridge cases were found at the home either that's correct but also there's always the possibility of a robber was this issue is fully preserved council made it very clear in his motion and the judge did that it was limited to protecting a fellow gang member position is that it went way beyond that it opened the floodgates into this advents about the children and older drug addicts which attack on the sufficiency of evidence and i think for the reasons that we made very clear in there we think that this case is far from overwhelming it's very underwhelming there's no direct evidence no statement all you have really is burden shifting say mother defending chris subpoenaed anyone that has absolute burden shifting it's plain on its face it's impermissible and courts have found that that comment standing alone is reversible error additionally with the we ask you to look at that hearing the transcript from and hearing in its totality what is the judge really talking about there in when the defendant gets a maximum sentence after being acquitted of a lesser offense why is that not troubling to the court it should be based on that transcript and for those reasons if the court doesn't have any further questions we'd ask that you reverse his conviction outright based on that first issue otherwise remand the new trial and then the alternative