in two thousand the illinois legislature adopted the precise and specific definition firearm as any device designed to expel a projectile projectile by the action of an explosion expansion of gas for in person instead the state's case is based upon photos were three taylor cell phone and detective finale's opinion about the items seen in these photos but this is an age of lookalike guns and replica guns and firearm or cover or ever seen by someone there needs to be something else such as an admission by my client so let's just start with the back sorry to interrupt but that with an admission if the officers testimony holding a firearm and here in this photo are you holding a firearm and he had said yes that would be sufficient yes so if they said instead of firearm use the word gun that would be i think under the statute your honor it's hard you know i mean we have to figure out is or other evidence to explain what taylor means i got you know ideally detective finale would have said are you holding a firearm what type of gun is if you know more than just are you holding a gun and effectively and i never asked him are you holding a gun he never asked that he never asked that because when he was interrogated the purpose of the interrogation was to look at the shooting they were concerned about the shooting and because of that they never asked that that critical question that would have determined whether whether what occurred here was in fact a criminal offense well going back though to what would have been minimally sufficient to sustain fire under the statute which again is very specific it includes these these exceptions and it has to be clear that it was actually a firearm not a b b gun not to be you know have to say is that a real gun you're holding there in the picture possibly honor but that's not again i thought would happen and this i realize that but that combined with detective finale's opinion yes but ideally of course would be if they were covered i mean this is again a very the subset of defendant if that's the gun that was used in the shooting words to that effect and defendant says no so the question is phrased using the word gun defendant responds in the negative thing no but he doesn't say no that's a b b gun you're looking at a no that's not a real gun he says no so what are we and more importantly i suppose if that's a factual question what's  that would be an admission because what's been raised from the question is the firearm used in the should so i don't think that is placing the responsibility on the part of the defendant to produce evidence it's just taking his response and viewing it for what it is an implied admission so but what you're saying is that it's insufficient to serve as an admission on the part of defen the photos and he also admitted he's not an expert on those types of guns even as a seven circuit observed in bay there are guns on the market that are made to look and function like a real gun in every way except those ways that all five of them as a fire rm in illinois we're parents now for science they defined by statue it's the state's burden to prove that the object actually qualifies as a firearm under the statute this case the state did not meet its burden until they received ten he had a gun but you don't have any proof more definitive proof along the lines of what you're suggesting here to support the evidence that it was a part of i'm not aware of any of was unequivocal and we don't have that here so we don't have anyone ever seeing this report firearm like in malone she actually says that she's near it it's right across the counter from she hears that more we are operating looking at this picture i mean in the log was that witness first and firearms an expert of some sort to be able to distinguish between the two we don't know that but we do know that this first of all this twelve minute long interrogation video should not have been admitted as evidence because it was highly prejudicial other crimes evidence that did not demonstrate taylor's knowledge of the object the state relies on what taylor did not say show that he actually knows the difference between a b b gun and a firearm or that that item is firearm what it shows is that item in the photos is not firearm but it was not specifically the firearm used in the shooting working firearms that fall on his statute more importantly it connects in the shooting interrogation connex taylor to these working firearms and here it's more than just implication because the prosecutor emphasized the fact that it was a shooting interrogation to the jury during closing argument saying remember the context of the interrogation it's about a shooting people who used guns to shoot up a level no one getting hurt because of the weaknesses of the fuzzy photos by themselves the state wanted this interrogation video to make this very connection to the jury this video again next taylor the actual firearms making it more likely than not that what was the best thing in the photos was a firearm and shoot bullets he never asks that and again the reason he never asks that is because at that point they're worried about the shooting not about what's in the photos so they never asked that critical question that would have established whether this was a crime only counsel failed to ensure that the jury was properly instructed even though the theory of events was that the state didn't prove this was a real firearm that it was a b b gun instead defense counsel never made sure that the jury was told that b taylor's conviction from lawful possession of firearms by fel firearm the state a defense counsel stipulated to the defendant status as a felony which really only left one element for the state to prove that the defendant possess a firearm defense counsel's strategy in this case was simply to like to say present their evidence motion for directed verdict and our use of the jury but they did not prove that element beyond reasonable doubt they didn't bring in the firearm they didn't prove one hundred percent that it's a firearm they didn't prove that it's a firearm defense counsel number one said ladies and gentlemen of the jury this doubt there were three key pieces of evidence in this case first and most importantly there were the photographs of the defendant holding what appears to be a firearm additionally detective finale testified that his and his experience as a police officer he has never seen a b b gun or an asking defense counsel about a few minutes ago justice harris asked what would make this what would prove that it was a firearm without the firearm being there and there was some discussion that maybe an admission maybe an admission would have helped that's what we have here in the  he says is that the gun that was used in the shooting the defendant says no it wasn't and detective finally says ok well you know you know what what's going on like why do you even have this kind of doll you should have a gun and he says i was holding it and being the gun runners this video needed to come in to set some background for what it means what is it and just coming in along with only the video so defendant saying i was just holding it it could be anything i'm just holding at this pen i'm standing here with my documents without having some background of this video on the shooting really the shooting incident the jury would have no idea what i was just holding it means and playing this twelve minute video it was clear to the jury that i was just holding it means i was just holding a earth based on the photographs the testimony of detective finale a skilled police officer who would interview the defendant for six hours and has experience with firearms and also based on the interrogation video where by the defendant says i was just holding  it meaning the gun that established says the sufficiency of the evidence your honor defense counsel also suggest that the police interrogation interview was and admissible as for and admissible pensively evidence the state disagrees for two important reasons so first the video evidence came in to show defendant's knowledge that he was holding a firearm we can't set aside all notions of common sense or honors when defendant was and custody based on the shooting incident and the detective said was that the gun that was used in the shooting any reasonable person would have said drama that's not a gun it's a b b gun it's an airsoft gun your honor this was the defendant's first rodeo with law enforcement he is a convicted felon which was stipulated to in this trial he knew what was going on he was very cooperated with law enforcement this whole time if he was holding a b b gun he certainly would have said so by saying i was just holding it he ought not only admitted that he possessed a firearm and he also it demonstrated his knowledge that what he was holding in the photos was a firearm second your honor when considering propensity evidence we have to consider sort of the spectrum bad acts of it all it's all considered in much the same way there is some difference between really bad bad acts for lack of a better term for example as your honour's no i'm fresh out of law school and bar prep one o one propensity evidence is anything that makes the event more or less likely to happen for example hypothetically speaking let's say th then has committed armed robberies in the past he's now on trial for armed robbery the state wants to bring that in and it might arguably show his propensity to commit armed robberies here that offend him to start with being a felon in possession of a weapon of a firearm specifically how does this video show that he is more likely than not to be a felon in possession arguably it so that he's around people who have access to firearms maybe he runs with a bad crowd he never admitted to his involvement in this shooting incident rather he maintained throughout the whole twelve minute interview that came and that he had nothing to do with this but the shooting he was there and you know these people if anything this was more able to fight association arguably in terms of propensity evidence so we have the armed robbery hypothetic on one hand and the skull by association bad act on the other end of the bad acts spectrum this doesn't show his propensity to be a felon in possession of a weapon your honor the video  right your honor the holes purpose as defense counsel who lives who earlier of this interrogation video was to investigate this october fourteenth shooting there was a shooting incident and a party or a gathering defendant was a witness who knew some of the people that were involved in the shooting and he was brought in for questioning on that incident really this felon in possession charge but not on detective finale's radar at all at the time that they're investigating the shooting detective finale is more concerned about what happened on october fourteenth trying to get to the bottom of that there's like definitely absolute panic and we search her cell phone and he says yes he can sense he says yes you can search my cell phone they extract these photographs from the find and cell phone again still thinking about the shooting detective melich wants to figure out what happened with the shooting and he asked if and he says we got these pictures on your phone you know is that the gun that was used in the shooting he says no that's not that's not the gun that was used in the shooting he says well white used to have a gun he says i'm just i'm just holding it possession charge came after this video recorded interview of course the defense counsel suggests it would have been great if the text and i said what model of the gun down is that what kind of gun where did you get it followed up with all those questions but that just wasn't even what they were concerned about at that point in time this shooting incident just occurred they were trying to get to the bottom of it your honor counsel additionally argues that there should have been a b b gun instruction given to the jury as i discussed in my opening statement the speeding  expert in firearms but in my opinion you know in my experience as a long course an officer i have never seen a b b gun with an extended magazine on appeal defense counsel has done a great job of creating this b b gun defense that didn't exist in the trial court rather defense counsel attack the sufficiency of the state's evidence by saying they didn't prove to you ladies and gentlemen of the very that this was a firearm beyond a reasonable doubt it would have been arguably and that's a call for defense counsel at trial to say this was a b gun there was no basis on the records for suggesting that the defendant had a b b gun and stayed there for a b b gun instruction was not only not warranted in this case it would have been improper had there been a b b gun instruction your honour's arguably the multiple cases coming out of our own districts that suggest the council can make a strategic decision to knox requests the story and struction council might not want to draw more attention to the other crimes evidence or the other bad accidents and in this case what kind of instruction was the court even going to give the jury this video recorded evidence was admitted for the purpose of knowledge and to show that the defendant makes an admission in this case the instruction given by the trial court where they have been would have drawn more attention t something along the lines of maybe some gentlemen of the jury are about to view this video here only to consider it for the purpose of knowledge that defendant was holding a firearm well certainly defense counsel would have a serious problem with that kind of an expect an instruction being given  is not reversible error we consider it under the analysis of plain error and we consider whether the defendant received a fair trial it is clear on this record that the defendant did receive a fair trial he arguably received a more fair trial because there was no the court said no those can't come in they're not relevant defendants not even holding the firearm by the court and say the photographs which depicted the defendant actually holding the weapon or the photo with the defendant with the weapon in the defendant's waistband those were  in terms of the video this report an interview i think lasted from two pm till about eight pm in the evening it was over six hours long this interrogation video they ferreted it down to about twelve minutes interview based on the relevant portions that have to do with the photographs or almost chain of custody if you like where the photographs came from showing the defendant give consent for them to search the cell phone and take the photograph your honor there was some back and forth between defense counsel the state and the trial court on which fortunes of the video would be admissible there was an initial motion in limine a hearing where the court actually said more more things couldn't come in in the video he said that the statement i was just holding it was actually an admissible and actually in the first motion in limine hearing the state then filed a motion to reconsider and there was another hearing on a new day on that evidence whereby the court sad you know those statements are related to the photographs when the defendant says i was just holding it it being the firearm the court said that was relevant because it showed that the defendant  then mission the court took very seriously its role in ferreting out this six hours worth of video recorded statements to twelve minutes to make sure that the defendant wasn't prejudiced by all of the other collateral information all of the court  state all worked closely to hearings to make sure that only the only things that came in were related to the charge of the defendant being charged with a felon in possession of a firearm you're honest because the evidence was probably admitted which  five like to discuss a couple factual misstatements made made by the state in her argument first she says twice two different times that during the interrogation finale tells taylor that he and says yeah i told you and i says these guys and i said you guys because you also got your hands on it the defendant says oh i mean i was just for that so i wanted your honour's to realize that for now he wasn't defense counsel says the dispute is whether or not mr taylor was holding as the state says a handgun inclosing d that you can't tell what is in the photo you can't tell if it's a firearm or if it's not this is the central factual issue in this trial this isn't a brand new issue on appeal in fact the state the prosecutor closing argument recross this was not a brand new issue on appeal this was the issue in this case  also want to bring up that the state's plane argument is is is a red herring in this case she discusses and terms of the jury instruction saying that this is plain where the jury instructions were brought up in the context of ineffective assistance of defense counsel for not requesting other crimes limiting instruction and the exception in the firearm definition that b b guns are firearms in their brief the state doesn't say that this is playing