habeas relief to respondent in the absence of precedent from this court clearly establishing that respondents allegations rise to the level of a constitutional violation let's assume the judge said instead of what  he said so make the assumption by way i don't know if the witnesses are telling the truth or not but i believe he's guilty i'm not sure about their credibility but i believe he's guilty because he evidence provided by the state prove the elements beyond a reasonable doubt but it would does not violate due process or at least is not clearly established that it would violate due process for the finder of fact to speculate about the non element of the crime where it is where the finder of fact does not disavow or otherwise this isn't speculation the judge said who larry roans knew he was a drug dealer larry owens wanted to knock him off approached him and hit him over the head with a baseball bat several times sorry could i take you back because i just didn't understand and i'm sure it was me that the answer that you gave to justice on my us first question i think it's important because it focuses on what the actual issue is here how much is at issue between the parties if you had a judge that said i don't think the evidence is up to snuff here and then said the thing that takes me over the line is what i think about the defendant's motive and that's what allows me to say that the defendant is guilty and that had not been proved that in the state and never offered  evidence and really just came out of the judge's head for whatever reason right do you think that that would be a due process violation well i think it would first depend somewhat on if on his b s review on how the state court or supreme court interpreted the record and interpreted what the judge had said if the state appellate court interpreted what the judge had said so that the judge was saying he did not believe that the evidence produced by the state prove the elements beyond a reasonable doubt that would be a winship error or jackson error which is not a respondent's claim here if the state appellate court read the record interpreted the what the trial court said differently and thought that the trial court did think that the that the evidence was sufficient but was tying it together by trying to tell a story that made sense to himself then it would not violate yes he would be a but then so the first alternative that you gave and you said it's not the claim here but i would have thought it was the claim here because you there is obviously a dispute about how to be these words and we can talk about how to read these words right but once you say as i think you said and i think you properly said look if what the judge is various comments on motive was basically taken him over the line was that that was the basis for the verdict of guilty that he didn't think that all the evidence the other evidence was enough and that that was crucial to his find then if i understand you right you would say that a due process violation because at that point the verdict of guilty is based on evidence that was never presented if the if the judge found that the elements had not been proven beyond a reasonable doubt the judge is just saying it's not you know this is not enough and it's necessary for me to think about motive as the missing piece there does not necessarily violate due process because for certain it's certainly not clearly established that that would necessarily violate due process  free to develop a theory of the case that is not presented by the state as long as it is consistent with the evidence and as long as the evidence itself is sufficient to establish guilt beyond a reasonable doubt i say so you  that it doesn't matter if the judge thought that the evidence was insufficient as long as the evidence was in fact sufficient if the judge said that he found the evidence insufficient you've described it whether the judge is saying that he finds that the elements have not been proven beyond a reasonable doubt or if the judge is saying that he needs to find some way of telling a story about this case that makes sense to him the first he basically believes that the evidence that was presented is enough but he wants to tell a story about some other things that make this all makes sense that's one thing but but if he's really feeling in the pieces and destroyed and determining guilt based on something that was never in the record that's another thing entirely and that that would run into all our statements about one of a crime is and i don't to have his guilt determined solely on the basis of evidence that introduced a trial and so forth it yes but it has to be quite clear that that's what's happening both because we have a presumption that judges know and follow the law and especially on h review the presumption applies with special force because on heaviest review we really sue not only that the original trial judge knows and follows the law but that the state courts that are reviewing his decision know and follow the law ok so now i'm going to go back to just to suddenly your second question and i mean just take a look at what he said here all right his first sentence is all of the witnesses skirted the real issue all right so all of the witnesses there's something wrong with what we've heard from all of the witnesses they all scored the real issue ok so what was the real issue what was the real issue when he says the issue to me is that you have a drug dealer on a bike who larry o once the defendant knew was a drug dealer and owens wanted to knock him off that's the real issue and then he says the state's evidence has proved that fact much that fact well that fact is the same thing that he's just said is the real issue that there was a drug dealer on the butt who  knew and the defendant knew he was a drug dealer and wanted to knock him off and then he says ok finding of guilty i mean to me i guess with all the deference in the world it's just this judge said there's something wrong with all the evidence that's been given to me and here's what's really moved me to find him guilty so of first if that were what the judge said that interpretation it's not clearly reply brief we talked about the possibility that a judge would say i don't the evidence is insufficient so but i know that this defendant's brother committed a similar crime and for that reason only i'm finding him guilty to begin with we have a  general state of the evidence must be based apartment the verdict must be based on the evidence and the record correct correct and we agree with that yes but i don't see how i don't mind then your answer to justice  that the precedent can be read that that language can be read at a very high level of generality which is not appropriate for at her review under due process and it's especially important when we're talking about due process claims that this court inst respect his requirements that the clearly established law have a certain level of specificity of course it's clearly established that every defendant is entitled to a fair trial in the record and i think we have to answer that if this really is the conviction must be based on evidence presented at trial certainly cannot be based on evidence that the judge or the local bar or certainly end in this case it's important to note that the illinois appellate court reviewed the record and the only appellate court concluded that in fact the judge's speculation about motive was not a material factor in the verdict and that conclusion is also  entitled to deference by this court as if i'm not sure you know the problem is that you're making an allegation i'm not sure they had trouble with one of the witnesses they wrote it correct th defendant once when he turned around to leave the scene for a few seconds from a distance of about eight feet right i mean once pleading look how can is you say that johnny's testimony was sufficient i don't disagree with that but what they didn't say was that was credible or that the judge found credible those are two different findings certainly judge must have found it credit because if he didn't believe johnny weir what you would have to presume is that this judge said well i don't think that the state's witnesses have established the elements beyond a reasonable doubt i don't think johnny is credible so i'm going to disregard one of the most because all the judge had to say was i'm not sure he screwed and what takes me over the line is this motivation this theory that i have it is not clearly established that that theory innocent in this situation would would violate due process where it is consistent with the evidence is not contradicted by the evidence and where the elements are sufficient or this is quite interesting you can shore an inference about a defendant based on no evidence but one said he was a drug dealer or presume did you have any convictions for drug dealing he did not he did not so the judge could just make this up out of whole cloth the that's not extraneous evidence it's not evidence at all the fact finders are allowed to rely on their experience and common sense when they when they evaluate the evidence for example in parker versus matthews the defendant had a partial defense of extreme that he was operating under extreme emotional disturbance you had an expert who said he was operating under extreme emotional disturbance but the jury rejected that defense and this court said that the jury was free to do so in part based on their own personal experience and personal understanding of what emotional disturbance means so  consider what they know background information that they knew about the world and they bring that into the fact finding process a new theory i don't read that in your brief but somehow the judge was right he can you can assume that always knew that the defendant was a joke you know we argued in our brief that that the that the judge is free like any fact finder to make inferences based on his common sense and experience that's not the same thing as saying that the judge is free to ignore to convict in a situation where he finds that the elements have not been proven beyond a reasonable doubt this court could say that a crime is entitled to have his guilt or innocence determined solely on the basis of evidence introduced at trial and what i hear you saying now and tell me if this is not what you're saying but what i hear you saying now is well that's true as to real things that are extraneous to a proper fact finders role all right but it's not true as to i mean i'm just going to say this made up facts it's not true as to made up that that's different you can make  paths and it and made up facts don't come within this rule is that what you're saying i say several things first it's not clearly established that fact finder can't can't tie together the case to his satisfaction by my review by coming up with a theory that's consistent with the evidence but in addition you know it's not just it's not just like so i feel good about the case when i go home at night i mean this is a fact finder has of a very clear role which is to adjudicate guilt or innocence and most of all they're not an element in illinois motive is relevant to identification which in this case was all about and everybody said that this case was about identification so when the judge starts making up things about motive and i thought that the state really did not contest that this was made up that none of it was in the record that got you know who knows how he got this but he starts making up these things about motive and then to indicate that these things about motive are relevant to his adjudication to me i mean clearly established or not that just fits under this taylor principle that their interpretation of what the judge said and did was rejected by the illinois appellate court i agree with you that there is a question of interpretation so i mean it seems to me like everything comes down to that if you thought that this judge just made up that this and and then said this is critical to my finding of guilt i mean i just think you'd have to say that that's a due process violation under taylor that that what you do have if you have the ability to come hypothesis of what he may have been saying because i think this may be a little bit too hard on the judge this was an unusual prosecution it was a murder prosecution where there was no evidence of motive i think that's pretty rare the judge may have been saying something like this i have i have identification evidence here and by the way i read the whole everything the whole record and it's in there pending and the closing argument of defense counsel there was no signal there with the defense here was not that these were witnesses who made an honest mistake they just didn't get a good opportunity to see to see the perpetrator the the the argument of the defense as i read it he clearly was that something was going on here and these two witnesses were identifying were were were falsely i don't know knowingly identifying the wrong person something was going on there's evidence that the victim was selling drugs very strong evidence that the victim was selling drugs and that's what was going on here and so the judge said i may have said to himself why does the why would the accused take a baseball bat and beat this kid this seventeen year old kid who has a lot of drugs in his pockets running around them like why would he just beat this kid to death and there it he says i would be concerned about finding this the defendant guilty if i thought there was no motive in this case but i can see that there could well be a motive in this case because people in the drug trade kill each other and that seems to be exactly what was going on here is that is that not a fair interpretation of what the judge was saying i think it's an extremely fair interpretation of what the judge was saying and i think it is consistent also with what the illinois appellate court said when the appellate court said that the speculation about motive was not a material factor in in the verdict well  actually said so i have it looking at this because it puzzles me what standard were supposed to use he doesn't say there's no evidence that the two eyewitnesses knew each other or had any reason to conspire and fabricate their testimony next therefore in light of these identifications the trial court speculation this is page one twenty eight the trial court speculation as to defendant's motive for assaulting nelson will be construed as harmless error and the judge who's dissenting doesn't deny that it's error he says it's error is doesn't think it's harmless so now we have a case where it looks like the only words i can find on this in illinois i can see that it's air or they say it's or indeed they say it's harmless or therefore the issue is harmless is what am i supposed to do what standard do i apply out of twenty to fifty four if in fact they think it's there or even if they didn't decide it and we it's debatable obviously we think it's there we don't have to give them any difference i  the question of harmlessness but why would you have to give question on the merits question on the merits issue there was no merits determination i mean there are two ways to read this opinion and neither one indicates the deference ought to be given on the one way to read it is that they said it was error but that it was harmless error the other way to read it is that notwithstanding the fact that they said it was harmless error they didn't really mean that they didn't reach a decision as to the question comments were improper they should be deemed harmless since there's no indication that the comments constituted a material factor in defendant's conviction if they don't want to discuss the evidence and conclude that this speculation will be construed as harmless error so what they are saying is error the best reading of this opinion they're saying is error was the speculation it wasn't necessarily appropriate for the judge to be doing that but they're not saying that there was constitutional error here indeed it would not be coherent for them to say that it was not a material factor in the verdict and then not discuss whether that was constitutional error the second  in terms of whether or not even if you believe that the illinois appellate court didn't directly address the barretts twenty two fifty four days still requires deference to its conclusions it unquestionably concluded that the defendant's due process rights were not violated question is whether you get deference on the notion that this summarizing about motive was not error because because to me i read this opinion and i say they they never say it's not era quite the opposite they declare it harmless error ultimately the question that the court has to answer under twenty to fifty forty is whether the state adjudication results in a decision that is in violation of unreasonable application of clearly established law this court it's all its ultimate we the education that this court is looking at and the harmless even if you believe it's just a harmlessness determination on which they decided that is under davis the convicted somebody on the basis of evidence that had never been introduced at trial if you think that how could that not be harmful that's i mean it's almost tautological if the error is convicted somebody on the basis of evidence that was not proper to think about well of course that's harmful that's why he convicted him yes and for that reason we believe the dust reading of the of the opinion is that they did not find constitutional error because if it was not a material factor in the verdict it could not have been a violation of his due process rights i'd like to reserve the rest of my time for rebuttal thank you counsel so let me say mr chief justice and may it please the court  eagle drug trade and subsequently the pre sentence report revealed that he had no convictions whatsoever the court then said that this was by a two to one margin this was harmless error and i recognize that harmlessness is entitle to deference and i tend to discuss that but it seems to me that really we're past the and of of whether there was evidence concerning now which doesn't move in that case really much of the case hinges on what what you mean by error if you mean by error simply introducing into your decision matters that were not in the record that had no support of the evidence if that's what you mean by here it's one thing it's another thing if you mean by error using the evidence that was not in the record as a basis for your decision and which of the two you you assigned this to it seems to be determines the outcome of the case i agree and it seems to me based on what he said after saying expressing dissatisfaction with the witness's testimony he said what the real issue was to him and i have yet to be in front of a trial court making you know bench trial decision who calls the real court well there are two presumptions as work in a sense this is a morning seems filled with presumptions the presumption that he knows the law i think is absolutely correct and i think that presumption is a reason why we know that he found motive and integrity part of his conclusion of guilt and that is because the only supreme court decided the people versus smith case in one thousand nine hundred and it reversed a conviction that was based on identification and it rested on motive and it said it is essential if you are going to convict someone based on a motive theory that you find the knowledge that the accused have the actual knowledge necessary to generate the motive and when he makes that finding who defendant knew he was a drug dealer he is going through the paces in illinois law to establish the motive that is then the basis for the following finding all the elements which case of our sense that there is no case that says that your honor but this is different from that situation because this is precisely how guilt is determined the fact that it's not an  end element doesn't mean that it's not what he rested his guilty verdict i just want to i mean under ed isn't it critical that there be a case i guess that discern or as opposed to what you're saying is the case as well you know we have cases that say you can't be guilty of there wasn't evidence of guilt right but that that sent our case is clearly make sure turning our that's a to high level of generality well no i think ter and taylor  all of those cable or taylor says the problem is the judge said you can infer from the fact that the person has been arrested and indicted right is that that's taylor there was some there was a bad instruction there yes ok well that's very different that here the judge is the fact finder he's not instructing anybody on anything what about williams that with the seventh circuit only cited three of our cases right yes we have cited a few more well i know but that doesn't count right it's the ones that the seventh circuit counted  is about an erroneous instruction to a jury that's not what this is williams williams that's the prison attire case right the people around us yes nothing like that is here that's an outside influence on the on the fact finder and holbrook is the sheriffs who were right like there nothing like that happens here each of those cases of applied a what i would call a prophylactic application of due process to avoid a jury coming to a conclusion based on outside the record facts or assumptions here what we have is a trial court judge who has told us on the record but that's exactly what he's done and so what is exactly what he's done that he's told us he has based his finding on motive based it on a knowledge which is not which is not supported in the record that's not what the states it states as you read the relevant three sentences the issue was you have a seventeen year old youth on a bike who is a drug dealer who larry owens knew he was a drug dealer larry owens wanted to knock him off i think the state's evidence has proved that he said so to members of the illinois supreme court say the words that fact refer to the sentence larry owens wanted to knock him off and the sentence preceding that is the judge's speculation as to what one judge in the supreme court says what you said that when you read that together it means that fact referred to the  there we are and question is what are we supposed to do is there enough here to say that they are clearly wrong and those two members yeah i mean there we are the seventh circuit thought yeah there is reporter had put a comma there i mean i think what he's but everything from skirted the real issue because what he then does is defined the real issue what he has to what is going to bring him over the line to be beyond a reasonable doubt and the issue to me is and it goes all the way on from there to the end and that fact the issue to him is that that fact i don't think i don't think you can get to precisely because illinois law which i think he was following his error was of fact says you need to establish knowledge to create motive what if the what if the record said the judge says ok i you know the state has satisfied all of the elements required for murder in in illinois you know the the real issue here is about these gangs selling drugs in other words is there and if in fact i mean does that make a difference yes ok yes now why don't we accept the presumption that the judges are presumed to know the law and are following it and interpret that in light of  in light of that record but the comforter is you don't challenge that there's sufficient evidence of guilt do you visit no that's not our issue i mean that was challenge below but that's no longer at issue in the case the the presumption that he's referring to the the the only public court is referring to there is a presumption concerning the trial courts relying only on properly admitted evidence and it's the presumption this court explained is necessary and williams versus illinois to enable trial judges to try cases but then so that they can set aside  the evidence they've heard that's inadmissible and proceed on the admissible evidence but that's not what's happened here what's happened here is there is no evidence whatsoever of mr owens knowing  or being involved in any of this business and then you have the judge specifically saying that he knew that fact that mr owens knew that mr nelson was dealing drugs and it doesn't measure what he means when he says the issue here he would have made only the question here the result question what perplexes me here is that we don't have any evidence of moat and that would be a question and so he you know he supplies that but he does this it doesn't say that it's necessary to his decision well it seems to me the real again i've i've not seen a trial court judge faced with having to determine guilt or innocence frames a real issue as being an irrelevant sort of back story kind of if you're assuming what their argument is with questions what is the what they didn't talk about but so what was the rest of the trial about well there's no issue in the drafted to trial is an extremely short one and i recommend it to your honor and what is it about pages it's about this event that happened out so i know i understand that but i mean wh n he says the witness is skirting the real issue if you will tell me that all they talked about was we identifying him know your identification is no good yes our identification is good no it isn't yes it is if that's what it was about then that could be the real issue so there that they skirted because they didn't skirt i do something else has to be there for motive but is that what happened no but i believe what happened is the judge did not believe these people story that i'm speculating now too but the but the fact is that the harmlessness is something that you know you don't you say like i said he was a favorable to you my question what is my question was what those witnesses talk about he says they skirted the real issue i want to know what they talk well the rest of the trial they talked about the support they saw and you're saying what the judge said is i don't think larry owens was the guy i don't know and i don't know i i don't think they're telling the truth here about what really happened out there that so he's saying you think he determined that they had not really identified the perpetrator and yet it's because he thought it was a drug this guy was a drug dealer well he ought to be found guilty anyway i can't speak beyond the world but it's very important when we try to read this statement and i think it's if you think the judge did not think this was the guy but the guy who happened to be there was a drug dealer and so he sentenced him on first degree murder that's a pretty incredible submit oh that's not what i'm saying what are you a guy that was there was not had there was no basis for him for anyone thinking he was a drug dealer and that's the point i thought i thought you said that the real issue was that the judge did not think that the witnesses were credible i'm sorry i think what i meant to say was that when he said the witnesses skirted the real issue it was reflecting some measure of dissatisfaction with the witness's testimony and i don't know what that was it i don't know but what i do know is he mediately says what he's done frames what the issue is to him and in framing what the issue is to him he says that mr owens knew that this victim was a drug dealer and wanted to knock him off presumably because he's a drug dealer and from the very next thing that he says is finding of guilty of so those things follow one right after the other it is the only thing is the only fact that he discusses after expressing whatever dissatisfaction he has with the witness's testimony and so it is it a minimum it is an integrity part of the process that he has gone through to reach the finding of guilt when you say that i want to put there's i'm trying to get the other side so you have to answer that squarely and maybe i'll put it this way there's the judge has been sitting there through this fairly short trial he's annoyed that all these witnesses they've been pussyfooting around what's going on they saw a murder no problem about that but they're not explaining it because they're frightened of saying what it's involved in and he's fed up so he's going to say i'm going to say what's really happening here what's really happening here is this is a drug deal it failed or something like that so that's the explanation of what he said if you could bring him back and say judge did you mean motive played a role here he of course not of course not it didn't play a role in my decision although played a role in my decision was what the witnesses said which was he's the guy i was just saying what's going on you know what i think they're saying something like that and my answer to that is that is speculation upon speculation upon speculation and it's not a basis for putting somebody behind bars for twenty five years and harmless error the they bear the risk on harmless error the state they have to explain if they want to explain something other than what's on the speculating trying to make sense of the whole thing but that wasn't the basis for his decision you have to establish that it was the basis for his decision whereupon there is there were up on the slate as to show that it's harmless well where high point back to in your opinion any any facts that are not on the record it's a mistake to do that i think that's what they meant by this h well and that's what i think they thought he did and i think they decided that was error and then they turned in did a harmless error analysis and they're harmless error analysis was insufficient i think for three reasons ok i believe that it was it fails the brecht kodiak us test because they simply took a look at the remaining evidence and they did not make any effort is the seventh circuit findings yes a judge is going the judge is is his is his pet best way if you can just as few years ago then and that you made that statement it down just one statement that the judge made that you claim  is utterly unsupported by the evidence i gather is the statement larry owns knew he was a drug dealer that's the that's the only one now there are could and there's some evidence from which one might infer that it might be insufficient would depend on the standard of review but there's evidence that that nelson the victim was selling drugs could you not infer could a reasonable finder of fact not infer from the record here that this kid the seventeen year old kid with forty packages of drugs who's hanging around in front of this in front of this bar was there for the purpose of selling drugs that would be a reasonable inference and the and  defendant walked up to there's evidence that the defendant walked up to this kid standing in front of the of the bar selling drugs and spoke to him for some period of time right there would be mr evans now mr johnnie mr john there's evidence that if you believe that the that took that took place right there is mr evidence testimony there's evidence of that so could someone in far from those two facts that that if this kid was pretty selling drugs and the defendant walked up and spoke to him to some for some period of time he knew what he was doing and yes but the only appellate court has already told us that mr evans is testimony was his his credibility was severely undermined and it was contradicted by mr john it's testimony specifically which the illinois appellate court relied on although irania slee because they misapplied neal versus bigger interred in taylor in the other cases that the seventh circuit cited in that we've cited but the fact is that the motive was a part of the identification and they are i'm trying to figure out what the standard is if you could put it in words suppose that the the trial judge had made a finding like the court of appeals appears to about the time of nautical twilight and suppose the trial judge was wrong on that then what  so the trial judge just made a finding of fact on a fact that it's not necessary for a conviction might conceivably have some relevance of the determination so what is the due process standard for determining whether that that what happened here what went wrong here you're not saying is that there was a superfluous find in the fact well you're saying that there's a superfluous find in the fact that actually went into the judge's well i know termination just any old superfluous finding a fact it was not superfluous it was a made up finding of fact that created the judge's final conclusion that the man was guilty that played some role in that final and i apologize if i have ever said that already but there is certainly our point is that the judge framed the issue laid out the issue found the fact that was directly in front of the finding of conviction  the only fact specified by the judge in reaching that conclusion in as you know there's a new reading this in reading with the judge said it depends on the reasonableness of what the judge said may depend on whether you think that the judge inferred that lowery owns killed the victim because he knew he was a drug dealer or whether the judge was in attempting to fill in the blanks of this case inferred that he knew he was a drug dealer from the fact that there was proof that he killed him so there are now that the victim is a drug dealer and the defendant talks to the victim and then the defendant proceeded to be at beaches brains out with a baseball bat you could probably infer from that the reason why he did it was that he knew he was a drug dealer could you not the reason why we ever get it did it because yes i think that's right i'm sorry you said the problem is with the evidence that linked him to mr owens right but you're not challenging the sufficiency of that evidence i'm challenging the credibility of that evidence the trial court never found it credible in fact he expressed some concerns about credibility of the eyewitnesses resolve conflicts in their testimony or weigh the evidence or do reasonable inferences therefrom and then it proceeded to do essentially just that which it can't do because it didn't see any of these people and it is clear from the record that there was a fair amount of equivocation by even mr johnnie his his behavior that evening was extremely suspicious  the only part court made basically mistake after mistake in its harmless error and they all since it seems to me like you're challenging the sufficiency of the evidence and again as i was the case comes before us we assume there is sufficient baseball bat but nonetheless he thought this guy was a drug dealer and that will be a move that doesn't make any sense to the trial court must have accepted the credibility your honor of one or both of of the witnesses i don't i'm telling you i'm reading you the only appellate court opinion and i'm telling you i agree with you when it doesn't make any sense comes out time and again because it doesn't make any sense because this was a terribly by job and even under the deferential standards of brecht in kodiak as the trial court got it based it  applied instead of applying harmless error law they apply this the overseas biggers as a role liability and they also for whether something gets admitted into evidence it's not the outcome it's the inflow into the trial and that the determination at the end that this guy johnny who's been hiding out from the police all night and then hides out from the police for a week is is somehow credible that he's the guy that's been telling the trial judge oh we talked to the police well it turns out on cross examination he didn't talk to the police it was his driver who talked to the police i'm sorry counsel maybe i'm just repeating myself that sounds like you're arguing the sufficiency of the things but your honor it is not a direct talking briefly about the harmless error analysis that the illinois appellate court undertook even assuming which you do not concede that they found constitutional error and then went ahead and did a harmless error analysis at best  material factor in the verdict therefore it could not have been a harmful error second i'd like to say something about the role of motive in the case if you are playing how they were able to make them and finally that  motive that the judge specified based on evidence it's not in the record that that didn't have an influence certainly they only appellate court talks about the evidence at trial and  talks about the fact that the judge has just sat through a trial in which he's heard two eyewitnesses unrebutted eyewitnesses identify the defendant as the as the as the killer it would not  courts conclusion that it putting to get that evidence together with the presumption of regularity the only appellate court presumes that the motive was a concludes excuse me that the motive was not the speculation about motive was not a material factor in the verdict and motive is not an as as it's been pointed out motive is not an element of murder in illinois and motive although motive can be used to establish identity it doesn't have to be used to establish identity people  smith is a case about whether or not the state can put in evidence of motive without establishing that the defendant knew about this evidence that they're putting it there's nothing whatsoever to do with whether motive is a necessary part of establishing identity and a case where you have to find rebutted eye witnesses to conclude for respondent to prevail this court would have to find that the trial judge would have disregarded some of the most basic cannot be reached on the seventh circuit should be reversed thank you thank you counsel the case is submitted