morning again my name is emily what on behalf of carlos lopez today i'd like to focus on the issue of the improper other crimes evidence that was admitted at trial although obviously i'd be happy to answer any questions the score may have about the case in general the illinois supreme court has laid out rules regarding the admissibility of other kinds of evidence and specifically they set a threshold question that must be met and that's that the defendant must have participated in or committed the prior crimes only once that question is satisfied can the trial court then go on to examine whether the probative value outweighs the prejudicial effect here that threshold question was not met there's no evidence that carlos participated in the incident three weeks prior to the murder the state claims that this question is an important that the evidence need only be relevant and that because it's part and parcel of the insertion of fence it's admissible based on that it's simply contrary to controlling law that mandates of the defendant's participation in the other crime is a defendants who were involved in that prior offense when you take a look at the cases where the defendant was not involved in the prior offense such as smith and pikes those courts have held that the evidence of the prior crime is i because the connection between that crime and defendant is too tenuous and here the same bar to admissibility is present karla simply did not participate in the prior incident three weeks ago so will cases offer guidance as i stated there the state tried to introduce prior gang activity to show that there was a motive for the murder that the defendant had committed however the defendant there was not involved in the prior crime activity the prior gang activity and there was no evidence that he even knew about it the illinois supreme court found the admission of that evidence eroni us and further went on to say that when the state sets out to prove motive you have to tie that motive to the defendant on trial at the time the offens committed it's not enough to prove motive in the abstract here there is no proof that carlos had any motive resulting from that prior offense as the illinois supreme court said in lindgren the other crimes evidence cannot be admitted i evidence that he was involved in not murder pikes is a recent case that's very political to this one and in that situation it involves a prior incident where the codefendant shot at a rival gang member while the rival gang member was writing a scooter the defendant leader drove a car with that same codefendant who then shot at that same person that killed another the pipes court said because the defendant was not involved in that scooter shooting the prior incident the threshold question was not satisfied and the evidence could not be in that it the price court also said that that threshold question cannot be bypassed we don't even go to the relevancy discussion if the defendant did not participate in the higher offense the pike's court also said that the admission under those circumstances where the defendant was not involved offends ignores law and attempts to set a dangerous precedent it's own that's a basis that we can distinguish morales from the instant case there there's some evidence that morales purchased headed in the in the prior offense the us court said that the prior incident didn't even qualify as other crimes that it was question conduct providing context for the instant offense but the pike's court answered that as well and said that the fact that a prior crime provided background and context against a defendant who wasn't part of the other crime creates frightening legal implications the illinois supreme court simply requires more relevant basis cannot be speculative the motive must be tied to the defendant and as the pikes and smith courts recognized you can't show that the defendant was motivated by the offense without connecting to that higher offense even under the strict relevancy analysis as proposed in morale as the evidence is not relevant here the prior crime had different perpetrators and different victims there's no bearing on the end sort of france that prior crimes evidence offers no probative value in deciding whether or not carlos participated in the charge beating in truth the state use that evidence in conjunction with the gang evidence to excite a suspicion of guilt in the mind of the jurors and it's sad very act that the illinois supreme court has sought to prevent in creating the threshold question of the defendant's involvement how this should not participate in the crime admission of this evidence prejudiced him personally and threatens the integrity of this system carlos a fifteen year old boy with no prior convictions was placed in the position of going to trial with the stigma of another crime over had a crime that he didn't commit fighting that stigma required us to conduct basically a mini trial where he had to defend the co defendants actions so that he wouldn't be tainted by their bad acts that's not permissible as it simply plants the seeds of suspicion and speculation in the mind of the jury the pipes chris said that when there's no nexus between the defendant and the prior crime admission cannot be said to be harmless in fact the pipes quite acknowledge that it carries a high risk of prejudice ordinarily calling for reversal that in a supreme court in two different cases lindgren and smith also stated that because there's a real risk of the jury being overpersuaded by that other kinds of evidence and it might influence them to convict them solely on the basis to think on the beat of the belief excuse me that the defined it was bad and deserving of punishment because we just don't know what the taint a jury would have done reversal was required lastly if this court decides to follow under these circumstances the reasoning in morality it would threaten the integrity of the system and for that i would point this court to the reasoning from the supreme court in thing bold the right to an unbiased jury is violated when the jury based his decision on extraneous matters the substantial right afforded to guilty and innocent defendants alike collateral crimes evidence is likely to violate that right for a good while it is  in and under the facts of morality where morales the defendant there was evidence that he participated in that prior offense ultimately that follows what the illinois supreme court has laid out in this case it would not the defens  absolutely and so it is it's certainly ironic that they then later on went on to say it wouldn't have mattered if he was there because they did so much of their the basis for their analysis was the fact that he was president they didn't spend a lot of time discussing that and in fact the evidence bears that out there was some discussion on the record about whether that's a find it was there here we have we just don't have that we have two witnesses talking about the prior incident neither which carlos participate in any way so we just don't have that we don't have that threshold question the evidence is not admissible because the admission of that evidence is contrary to controlling ra and tonight carlos his right to a fair trial significance it was i would have to go back and look at my notes for the exact ruling or not but i think simply because there was going to be some evidence of finger pointing and reasonable doubt saying who actually dealt the blows since the state proceeded on accountability i think that was the reasoning basically the same points that we have taken in our brief which is that he wasn't present it wasn't relevant there's no way that it's not that different i'm sure absolutely shirt well there was brought up you know my understanding is that was not the basis for any sovereign said it was simply five or six guys out there who are always out there and this is before this is on the december third the earlier incident and when he when he went into work that night these five or six guys including the defendant and people that he recognized it in people's number seven and ten morales they were out there before this crime the crime occurs and the witness to that is silly ortiz and she sees three men hitting the door of the tortilla factory with baseball bat and then they go out and break windows in the in the parking lot and those three were daniel roman ismael rupp morales and martin roman and then pedro martinez says that after those men came into the factory he goes back outside and sees the broken windows and everything else and again he sees the same five or six guys including the defendant and the guy and morales so clearly you have identifications of six of the people who were later identified in the in this crime itself and therefore there is some obviously overlap here the question regarding other crimes and as this court decided in morales which relied on manual and rutledge there's a difference between extrinsic other crimes and intrinsic other crimes morales is interesting of course because it's the same case as this case just a different even if the evidence of the contested the december fourth incident a said was the defendant was not present the jury was free to infer based on the evidence before that the defendant took part in the murder and robbery to help his friends avenge their vendetta against the employees the tortilla factories so that issues w squarely addressed in manual because if you will call it in and not manual morales there reza question as to whether that defendant was actually involved in that case as well just as there is you know a question raised in this case whether the defendant was involved we would argue of course circumstantially and inferentially the fact the defendant is with his group of people the for the incident on december third he's identified as being with a group of people then through those people or are seen doing the crime on december third and then defend again with this group of people at the end i think we can put the two together and make circumstantially an argument that the defendant was in fact involved in that prior crime and so that relevance is the standard to be  before and after with the same people who would then be involved in the second crime i think if you put it all together you've got an inference by by combining all those factors i think you can make an inference no he's not seen by dis witness doing anything by by sylvia doing anything that night but the other thing remember the evidence in this case even aside from the other crimes evidence which is overall we have two eyewitnesses who know these defendants written because it was relevant i mean we don't always stop just with you know is it because we have two eyewitnesses doesn't mean we can't bring in four just because we have eye witnesses doesn't mean we can't bring in circumstantial evidence or or you know physical evidence you can draw the inference then it's minute then then it then of course he is involved then it's relevant if he's not involved then then what's the harm you know they did way bring it up i mean obviously it was  that he wasn't even in that two other standing in the street well first of all i disagree that it was not at the time they're described several dozen describing a gang activity pedro doesn't describe any gang activity is not it was not argued that that was a gang activity at that point again evidence came in later through fernando so that this wasn't argued is a gang thing it wasn't just a dirty him up it was to show why a group of people would drag an innocent man off a forklift and drop concrete blocks on his head and kill him for no apparent reason robert they went through all that that is an apparent reason but that doesn't mean there isn't another reason i mean this is a this is an to put on evidence as to relevant factors and this showing a motive for this crime that these same people and clearly that the three that are beating out the windows of the car in that factory after chasing people into the factory are three of the people who identified three weeks later at that same factory dragging this man off them off the forklift so if there really was relevant increase in motive and they were allowed to we don't have to but we're allowed to introduce evidence of motive and as i stated that the court was correct the the issues were at least at least half the issues are identical to the issues in this  so i think that there is support for the morality court to decide what they decide i don't think it's as outlier i don't think they're out there on their on an island in the propensity evidence again is one of these issues that there's a bind if the defendant wasn't involved in the prior incident then how could the jury if the jury believes he's not above the present what propensity does it show it doesn't show anything it shows propensity for other people to do something but doesn't so the defense if on the other hand was one during the trial i know that there was one after the trial but i don't recall if it was one right before the first first witness testified in any event for the issues that we stated today and the issues in our brief of course this evidence is damaging that's why we have a threshold question set out by the illinois supreme court the defendant has to have participated or committed the prior crime if that's the thing that we make an inference or just you have motive in the abstract isn't enough if the state takes on as as he said that he's entitled to do to prove motive you've got to tie it to the defendant you can't just do six degrees of separation where you can infer that he might have involved might have been involved and then infer that that might have created a motive by virtue of the gang evidence i mean here we're getting several fields a far from what the illinois supreme court has an opinion participated in a committed illinois supreme court has said it's not enough that he was there before at some point we don't even know pedro martinez testified that he saw him when he came into work we know that he works seven pm to seven am we have no idea when he came back out and saw the damage to his cars without that timing and so we were t's who actually saw the incident testified the three guys did it it wasn't carlos we don't have the his involvement in addition we know we know that this isn't relevant i mean first of all when the state talks about morales and give billeted to prove motive even if the defendant wasn't there morales in terms of the discussion of the defendant's participation was going along fine once you hit the analysis where we talk about the defendant even if he hadn't been there it simply is wrong in that respect it is an outlier it runs contrary to the illinois supreme court law that says again this is a threshold question the defendant's participation and number two again abstract can't be just in the mode of you can't infer then and for then unfair and use it as a backdoor also to bring in gang evidence which is really what happened in this in this case we also know with respect to carlos this student it wasn't necessary to provide a context or explain the otherwise inexplicable behavior of pulling a man off of a forklift we know that because the state didn't even argue it in its closing in its closing argument the state did argue robbery the state did argue gang of events but it didn't argue the part of crime in terms of connecting him try a motive placing that other crimes evidence in there to plant that seed of suspicion and speculation the jury was prejudicial and enough itself and the cases are pretty clear that because there's this real risk of damaging him damaging carlos denying his right to a fair trial a new trial is required by an unbiased  again it's not enough to have an overlap to just say that he was there at some point in the night maybe before the incident happened and after the incident happened we have to tie the defendant to the case it simply was not done here and that goes directly to  ability if it's not admissible it needs to be out one last point the script right up to the jury instruction issue i mean we did argue in our brief and i would basically rely on not that the instruction was did not follow the p i exactly it didn't fully inform what the jury was supposed to do with out of their crimes i wouldn't so then again that compounds the prejudice that compounds the error that was already introduced there in a more question sorry again late to request