and mr mulligan whenever you honor but i do believe that there was insufficient evidence to convict him s principle as well the nd basis for our going to your honor is that the prosecutor made improper statements in his closing argument where review is whether the trial evidence you know like most favorable to the state is sufficient to find of a conviction of for st degree murder mystery really was found guilty of st degree murder but versus case that is so unreliable ok this court has the opportunity to overturn that conviction if the test was based on one witness and this case there was one statement that she gave through to the police it was inconsistent custody her st version to the police was that she wasn't there she was with a friend or rd version was either shot to do it if you remember that and that and the test when she was faced with charges being charged as an accessory to murder which is consistent with the video not massey's testimony or should be herbert's what she said to the system states attorneys consistent with what is shown in the video it was two individuals that approached the car and she testified and she gave the statement of the way mr keating refers to where you're from and man down saying someone got shot and my friend doesn't support a conviction for murder what we've got is one person they gave one statement to the police that she gave three evidence which is also consistent with the video and then we've got a rd occurrence with this jasmine brown also did not see who shot the victim so that again the only witness or the only testimony  the offense but i i i guess i started out by asking you know he was only charged in the jury was only instructed on st degree murder and weren't they weren't given that instruction on accountability and they were asked to find jury in this particular case and if you remember they repeatedly talked about what fit what this common plan or design was this was to go back to a party at wentworth gardens where it's to get at the girls according to miss johns because motive for that on i'm sam i understood but what i would point out that this really and mr massey weren't even at the party when this this incident occurred they had nothing to do with the argument but that was the state's fieri that this was a revenge shooting for something that happened at a party where my client wasn't involved and then somehow that theory of the case then morphed into discontinue that plan jump out of the car and engage in the thrill kill a someone who just happened to be in the wrong place at the wrong time again the stakes in no evidence that they were that my client was aware of this aid or bad again i would suggest your honour's there was no evidence that he signed on to this plan at rose if you believe they were going back to to the to the party that was to get back at the clerks and that's the st inference that the state to the jury was that either he signed on to this plan to return to the party and deal with the girls through some sort of criminal activity if you remember mr johns testimony would go back to the girls and deal with it there was no talk about what to do with him that there be made but they have to be based on reasonable inferences your speculation gas conjecture is something the jury can't do and i would suggest your honor that we had inference upon inference at some point morse into some sort of pure imagination people versus fernandez the court said that the defendant can be held accountable and in order to be held accountable he must have been committed to further this of a crime that was planned or intended and again locked up to the car what were they planning i don't know there was no evidence of what then somehow morphed into just a thrill kill of anybody from what guards again at one point it was go to the party now it's we're going to shoot weber is from that neighborhood again was there any evidence that my client was he signed on to such a common design or theory of the case again i think was based on inference speculation and improper argument made by the state's attorney that when he referred to my client as  shooter he went over there with he was right there when it happened whether you accept that there was a muzzle flash from that his hand whenever they get back in the car go back out leave to go it's not like he just happened to be there and maybe knew this alleged shooter the other defendant in this case you know you're going there there when it happens leave together never made any attempt to disassociate himself from anything that you say he didn't sign  it is if you have to cite and any well i think you have to do something and further it's of the crime ok that was intended and the crime that was ultimately committed was murder and that's that's where i don't think the state honour's read the read the transcript and the state argues that there's wide latitude the prosecutors made in their closing argument and tried to argue that that they were characterized as shooters because they were actually the shooters in this case that's not the context in which the state brought out this argument they brought up the argument that they were recruited they were enlisted because these were known shooters these were the shipment again i think it was yeah i mean evidence  was the shooter that we want to get a cigarette or something i don't know what but there was no evidence well it was actually being done at the vehicle other than the state's inference that this was just north into a revenge killing of someone from the from the area where shards again there was no evidence what they were actually doing i don't know when this was asked by the state why why why did mr eden mr massey go to go to the and the rd inference that they made it was more than inference is an argument that my client was recruited as a shooter to avenge some sort of priority cation that he had nothing to do with that he was not even aware of  allegation that was presented to the jury was only for possessing a firearm being armed with a firearm which did apply to both defendants regardless of who had the gun however the personal discharging allegation was not presented to the jury accountability however was and that was a fundamental aspect of this case your honor because the truth is that this was a situation where you really and massey were equal partners and they were they were the jury was only  hit the jury returned the general verdict of guilty on st degree murder and that was absolutely based off of as your honor i have explored the direct evidence of him being the shooter but i'd like to focus on accountability specifically because this is a case where elian massey you were equal partners in an absolutely senseless murder of jon voight there is absolutely common criminal defendants over how loud the music was and it got to a point where people at the party discharged a firearm repeatedly and the friends of yulian masses were forced to duck down and they immediately left the party so this was an intimidating thing they were upset and angry by their own testimony this is the testimony of caprice johns and jasmine brown they're upset they're angry they make this phone call to a mass of you who are still with her at that point in time and they all meet up at this windies and then from the window it is it's a three car caravan of lead vehicle in this caravan and both elian massy approached the passenger side door of the victim's vehicle and then at that point we know based off of what you'll be told all johns and sitting in a car on the street because you have a common criminal design you have a intent a shared intent to commit some criminal act in retaliation and in this case there they were telling it to gunfire and it's an absolutely appropriate inference that they were returning to respond to gunfire with gunfire and in this particular case you have  you have you don't have to show that they set out specifically to kill this jeffie cap driver it's it's the shared criminal design that of of violent criminal retaliation you leave the thing the girls call you leave and massa you were together at the time and there's some the lack of clarity with at least some of the witnesses about who was exact whose phone was would like to transition to that because you brought up the fact that during this incident you did not you know try to stop massey or like call the police or something like that in fact the evidence shows that he did the very opposite of calling the police he he worked with to get two of these girls from the caravan to conceal his presence at the crime scene by returning to the crime scene  with them and having them having caprice john specifically tried repeatedly to get access to the crimes crime scene by presenting herself as a girl who had just randomly boster cell phone but was a witness and wanted to retrieve it and even shows that by engaging in this really shows not only that there's a common criminal design that shared amongst these people but also that he's part of it because he's back but i'm having trouble figuring out how having his phone at the scene of the crime shows him before the crime he had a common plan to shoot this guy this particular guy because he's trying to if he's trying to avoid was trying to pass yourself off as which is i was a witness i didn't have anything to do with this and while this was happening i dropped my phone now would that get him his phone back right away i doubt it but not so even even the dopiest criminal wants you t a crime scene is going to think himself better get that x somehow that doesn't show that he was part of the comics sign to commit the crime it just shows that he's like oh nuts i better get that evidence out of there after the think that it's important to keep in mind that the people that he tried to get this phone back with were also in that caravan originally and you know we know there was a phone call w was his voice we know there was a cure and we know these guys that out of the car we know they approach the victim's car yes after that so they shot the victim four times after the couldn't tell with the bullets came from those cartridges because of the way guns are fired that's exactly correct ok so we still don't know who actually pulled the trigger but what you're saying is we know that you really didn't do any if he if he wasn't the shooter that really didn't do anything for a stop the shooting and that still doesn't tell me how they are bribed at the door of this car with the common design to kill the driver what if  what if really wasn't the shooter and massey was just crazed pulled out a gun from his back and started shooting well what would what could easily have done well what he would have done is they get back in the lead car with ma that this is it's immediately after the fact and it's it it's revealed that it's revealing about what is in his head at the time and before that because of the fact that you're not going to without statements you're not going to have direct evidence on what people knew and what people intended so you do have to look at the circles and showed others that after someone shot the poor victim that  wasn't the shooter he and his pale jumped in a car to try to escape because they both know the sky was falling but that doesn't show that for the fact they planned to shoot this man it was a common design to keep in mind that we're looking at all of this in the light most favorable to the prosecution this is a sufficiency of the evidence argument and so the inferences that i'm describing are absolutely reasonable inferences now could there be other arguments certainly but that's not the question here the question is whether or not any reasonable fighter of fact could have filed that court usually committed the line criminal designed to shoot this man it's not a crime you know it was not a kind of criminal designed to shoot this man it was kind of a criminal designed to retaliate yes and to retaliate with criminal activity to return to return gunfire with gunfire this is it doesn't have to have as your honour's pointing out it doesn't have to have the specifics of who it all to target is and an appropriate target of revenge on this part so there are absolutely other events rational or not right whether it's rational or not it's certainly a reasonable for the jury to accept i'd like to  herbert identified massy in a photo array and in a written statement to an assistant state's attorney as the shooter they are in different vehicles they have different vantage  points of the actual incident the jury was absolutely free to reconcile that evidence johns and herbert reconcile that evidence and conclude that the gun was passed between the two of them which is an argument that was presented to the jury and it would absolutely be reasonable that they all fired shots into this victim in retribution for the gunfire that happened at the party previously just a couple points st of state again a scale to explain or justify the reference to my clients if shooters in the closing argument they were not they were again they were called shooters before the shooter shooting occurred if they were not the dipshit state did not argue that their shooters because they shot the victim they are going to the jury that they were listed to retaliate  see sign high they show up there and the guy sitting in the car is shot so why is there not a reasonable inference from there that they were ca because these women wanted to exact revenge by shooting somebody with but there was no evidence that there were they had a reputation for being profiled was it a reputation for being a shooter and that's the context in the state argued as to why they were call and again if it's so devastating if it's so central so improper objection or post from osha instead the mute button was hit twice and now i hear it's court i do think it's important because if you think about the theory of the case and how it changed ok from just we're going to go back to the party and deal with these girls and then into a random shooting or thrill kill that the state had to have some sort of a theory to justify this because they were known shooters again the common theme or the only act that upon an mistaken belief you from over there and he was part of that incident the answer the answer was yes over here was never defined or explained to the jury it was inferred to the jury by the state that match when we went with cartons and therefore this was a revenge for anybody that happen to be from w again that was never presented to the jury that what over here indicated a match but your entire argument seems to be that we are to disregard any number of reasonable inferences from the evidence presented to this jury and the jury is the body that has to evaluate the credibility of the witnesses to see if there's enough coming from each individual witness to prove beyond a reasonable doubt that they're guilty and we're looking at it from the state's point of view here i don't believe all the state's emphasis for reasonable and i pointed out which i'm sure you don't think any of them  or shared intent i don't believe they did it in this case i think the last point i would make is well this really did after the fact of the i phone i think is irrelevant to the analysis what is relevant is what he did prior up into the