newdow from presenting evidence that the this even in this case richard story had a prior conviction for aggravated u w this was a conviction for assessing a loaded handgun the conviction was important in michael's case during the chase for me for michael's initial statement is that they were fired at the crew or there is a second incident leaned back up it's the the record shows there seems to be an altercation between these vehicles they lose track of one another and then minutes later miko's vehicle and encounters that the students feel cool and according to michael statement he saw a weapon come out of a window and that's when if you look at a statement actually what happened  i'm just trying to get your read is it fair to read his statement and conclude there his claim earlier which he took away later is that they were shot at when they weren't even in their vehicle yet something to that effect and he would he says is that these guys started making fun of him and teasing him because he happened to have on a shirt of one of his friends had been killed during an earlier incident so that it sounds like it is a statement sort of begun in the  testimony doesn't really say much about this but it sounds like then he gets in a vehicle he's not the driver he's in the front passenger seat in the back seat or two gang members one timothy mcveigh no back it testifies at trial the second gang member is the one that m in the air bag underneath the airbag it sounds like and there's people in the back seat time you better suit those guys when they see that the second time and michael says i was afraid the gang forces in the back times no no no no no no no no no i just want you to tell the truth and reshad day and he says no isn't that doesn't that and this and seems like the trial court went out of the way the trial judge went out of her way to allow the evidence such as it was of self defense against the jury instruction because of the jury despite the defendant's admission that's completely inconsistent with him being fired well i guess i would disagree with that in one respect your honor and that is that important here is timothy nowak testifies at trial he says that the there's hand gestures coming out of that that video call he's in the back seat i don't know if he's seeing you know it's kind of clear for the record exactly how this is going down but jury have all the facts relevant facts reliable facts a prior conviction is reliable it's a conviction it's also relevant in this case where my clothes saying i see a firearm coming out that window but  say really only in the sense that this is a gun case i don't know mr story has a murder case it's a yeah it's a murder case by fire you know what michael's defense was as i saw a weapon come out of that vehicle and we know for a fact that this the proper argument which is that much of a stretch you know how about an objection if it's so bad you know that the trial court could have taken care of that if an objection was made there wasn't and that's actually really i mean i think that defense counsel is doing the sees of weapon from that vehicle the jury has no idea that this individual was known to carry a loaded weapon it would help the fact finder where they believe that then this is necessary a self defense case i don't know but they were entitled to plays the fifth amendment so you know the answer is no yes that's right there's just nothing in the record that would corroborate anything that mr niro seemed to say in the early part of his statement you know perhaps other than the you know provocation with n p r i'm sorry for something but in terms of the gun terms being fired there's terms of any physical evidence there's nothing to corroborate well really i mean without that evidence that would have supported this fence what's he left with he has a statement again forces not willing to testify on his behalf or testify at all and only has as you know his statement which he did not recant that portion of his statement stories prior conviction that would have happened at least on the jury would have known this is someone who is who is known to carry a weapon well that doesn't mean you necessarily would have lead to self defense but if it was relevant and it was is excessive and i think the import of broken graham and the reason why applies to michael's case because it talks about juveniles it talks about how they're more vulnerable to peer pressure and i think this is clear from michael statement if we look at the facts of this case what happened was he's in the b o call with these other gay members and i think what's significant if you really read through his statement what's going on here is he's saying he's scared he's saying i don't want to shoot these  guys he's saying that the gang of course are sitting in the back seat saying you better shoot these guys and if you don't shoot them we're going to f you up if you well that's what he starts to sound that way when he was talking to think it was daniel go on here well he's going to be a cold he said i don't want to shoot he's afraid of this guy sitting in the back seat and he ends up shooting those guys he says i tried to shoot at the doors i didn't mean to shoot but i did i felt like i had t promised if you were going to you know wave a magic wand down the steps in his shoe what do you think should be done i think that a sentence of fifty one years which is the best michael can do in this case that's the minimum that's the best he can do that's right at the minimum if the sentence which it is today of course given the firearm animes it's fifty one years that's one hundred percent time in the forty five it's eighty five percent on a six year sentence which is five point one years michael spent in custody since he's eighteen he would not get out of custody to sixty eight years old that's the that's his whole life that's a late adolescence that's middle age that's putting him into a senior citizen territory and i think that based on the facts of this case and think it's not a disproportionate sentence to sentence him to fifty one years for this offense what it says is we don't think this kid or with the sentence as it stands right now says we think this kid cannot be is not suited it's not it it's within the sports authority under six fifteen before to sentence him within this period and purpose of the sentencing code which does the political actions under article one section that looking at the evidence most favorable to defendant and his original confession you have the same disciple shooting at the latin kings at some point and the defendant playing out a nation gun chasing after the same disciples in his car with his leg pains leaning out the window and firing eight bullets into that car shooting richard three in the back of the head and hitting israel fernandez in the arm pit defendant do not raise properly raise the theory of self defense and as a result there can be no error in the giving of the sultan's instructions to free be the judge or the judge gave the defendant a huge benefit of the doubt and in giving that evidence of self defense was extremely slight in this case the defendant obviously was not prejudiced i think that's what happened and he got that break and now he's able to are you which in this case which you shouldn't be because there was no it was not properly raised and even if it was the trial court completely used that discretion in denying that that's because it is not probative of violent aggressive behavior and that's well then she allows what about the weapon of choice being bottles when this is the state's attorney knew full well that  he or she have succeeded in keeping out the gun church it's probably because the the u w conviction is not a conviction where the defendant the victim and excuse me use the weapon they use the gun as a weapon that it was a simple gun drop that's pretty scary i don't think it is that you know the victim can carry a gun and defend it or use that just because the victim might have a propensity to carry a gun and that shows aggressive behavior it doesn't it shows a propensity to carry a gun perhaps but that does not show a propensity to use that gun at for they were the victims weapon of choice was using a glass bottle throwing at traffic that's that's the only conviction he had it's only the jury heard and that's the only thing the jury heard that really you know was properly admitted as evidence and even if the prosecutor was better to leave that unsaid the evidence here was so overwhelming against offend error in this case is entirely harmless we have defendant's own again member saying that there was never a gun shown by the same disciples they never fired at the lang king's they never showed a gun at most they might have shown some gang she there was no gun found in the river red jeep the victim was still in the car he was not holding a gun we know this the victims never fired at the defendant as a result the court promptly ruled on the lynch evidence seriously injured israel fernandas and then three months later he's playing with a gun and he kills his own brother maybe accidentally but the defendant is responsible for two deaths and in his life  may have taken into account in saying that he didn't seem like he was capable of rehabilitation her mistake of fact about comments that were made by i think it's a here's here's how the timeline happened defendant she was in kills richardson three months later the police still don't know what's who was responsible for this murder he's sitting on christmas eve with his brother in law with his own brother younger brother elissa nieto the victim in that case defendant's sister pregnant sister his home his friend i even is there cutting weed on the table defendant's playing with some gun he has he didn't think it worked he slamm the defendant for a month and they keep telling the police that the asked jesus s t s at some points not clear when daniel go dinos rats out defendant tells him the police actually what happened the police come to the new police activity you otherwise waste the police so it's limited resources looking for the same disciples who are responsible for this young boy's death when it was defendant it's clear as the video he doesn't even tells mother what had happened defend willing to take responsibility i don't think the video shows that he is susceptible to influence i think it shows he's a liar and he's manipulative the trial court looked at the video it is not in this court's  reweigh those factors the trial court made a proper ruling she made a link the ruling she said i'm taking defendants age of seventeen into consideration and she felt that seventy eight years but it's proper and it was well within the statutory range and in addition graham and rollbar are not a clickable to this case in any way those both apply welfare obviously doesn't apply it's a death penalty case gran does not apply because it applies only to non homicide offenders sentenced to life without parole we have neither in this case that court very specifically limited their decision and they said it's almost clear that they said it the same would not be unconstitutional for homicide offender justice roberts and his concurrence says that as a result defendant has asserted that any case law that indicates that this is an that this is an abuse of discretion because it does not fit with the purpose and spirit of the sentencing law under the code of corrections the only constitution and the eighth amendment because it's you know listening to state it they're very effective they always refer to him as the defendant which they're entitled to do but the eighth amendment requires a state in this is language from graham even then requires the state to respect the human attributes of those who commit serious crimes that's my client's he committed a serious crime and all were asking from says that the reviewing court can look at other review in courts the u s supreme court in making excessive sentence decisions and evaluating most of the state talk a lot about michael's the shooting on his brother i mean it just goes to the fact that this kid has had no warnings it's a disaster here i mean the whole kid's life is a disaster this kid has had nothing nothing and what we're asking is that there not be a