justification the defense proved by a preponderance of the evidence that he acted with the mitigating mental state of only reasonable belief and so the first he therefore asked this court as an alternative an issue to to to the evidence a trial show that in april two thousand and eight in new york we saw it was eighteen years old and he worked at a subway restaurant located at one end of the strip mall in joliet on the evening of april sixteenth of around five thirty six o'clock he was inside the restaurant making sandwiches i his car was parked outside of the restaurant and two of his cousins were sitting in the car pearlie waiting for him to get off of recognize the defendants cousins they approached the car and they have a point a police car came through the parking lot and the voice lords retreated back towards the other end of the struggle with a police car when on its way the vice lords returned to the car they yelled at the defendant's cousins to come out of the car they wanted to fight the cousins refused the vice lords then proceeded to attack the automobile one kicked it was still to boots another picked up a rock and smashed one of the windows and apparently tried unsuccessfully to snatch other windows to advice forwards went over to the savoy picked up a chair that was used to prop open the front door return to the car and threw the chair at the car the defendant testified that he saw some of these events transpire in through the windows of the restaurant and fellow employees inside the restaurant also told him about some of what they were seeing outside and the defendant testified that he was concerned for his cousin's safety in fact one of the cousins tried to during the attack on the power he himself was scared to death well they have point the voice lords retreated back towards the so boy one of them they actually started going into the restaurant but his friends pulled him away and they began walking away defending testified that when this individual started coming into the restaurant he was afraid at that point that he himself  none of those shots troy any of the vice lords but tragically one of them hit and killed alfredo lopez an innocent bystander who was going into a walgreens at the other end of the mall with his two sons is undeniably a terrific situation just a tragic situation innocent bystander being killed but the defendants in this is the evidence here shows that when he fired his gun he did so with an actual belief that or if your honour's believe that the odds of belief was an reasonable then the correct verdict is second degree murder now it definitive knowledge is that the columns rational and when he fired his gun he did so only because he was afraid that he was about to be shot with a transcript of his testimony is very clear that he testified when he fired his gun he did so because he was afraid that one boxer be shot referring to himself and his cause and from the beginning of the incident he expresses concern for his cousin safety so this is it appears the judge rejected this defense based on unfortunately on this right election of the evidence and she also plays great reliance on the testimony of a man named roger mercer who was in an automobile in the parking lot at the time of the incident and she felt and his testimony establish that there was only one person of the at the mall that day who was armed and that was the defendant well even if the defendant was the only person with the goal of the under illinois case law that doesn't of the parking lot out of which which i think is is really a natural reaction under the circumstances he's likely to be expecting out of the parking lot he's probably looking behind to make sure it doesn't fall into the through another car he's probably going to get a pretty good rate mercer testifies that at the time of the shooting the vice lords are long gone and the state relied on that testimony in closing argument to argue to the jury that any threat is of hated before the d stores away from the subway not very far away at all and even the state on appeal over to believe knowledge is based on this testimony that they were far away at the time the defendant fired his g but there was another witness i had no dog in the fight who testified that he was told that one of the boys lawrence was or more to go in this was cold as a witness by the defense he testified that at the time  trial he was in the county jail he was in the county jail following this incident with the voice and he had conversations with them and he testified that one of them told him that he owned himself that day and went to the ball for the lords furthermore of course jailhouse informants testimony is often suspect because they have an ulterior motive for testifying they might have a deal to testify here he's used as a phony as a defense witness so soon he has no deal with the videotape is taken from a surveillance camera located outside of the subway restaurant it shows the interior of the restaurant in the immediate exteriors of the restaurant but it does not show the entire mo and so the videotape doesn't show any of the boys so it does not negate his testimony that he thought you saw one of the vice lords holding a gun in one case law recognizes that in cases most cases like this were defended claim self defense extension against the defendant's cousins in addition to this their oath defense is that all of these circumstances show that he did act with an actual belief in the need to use deadly force in self defense must present in order to raise the issue of self defense or the defense of others one of them is whether or not there was actual force threaten against them and number two whether or not there was the danger of harm was in at the time and the people see what's in it that they they disprove that i love those were present the people would absolutely agree as i stressed in my grief that the video in this case is the most important piece of  as the judge declared it was there's one part of the videotape that i think this is particularly critical here at the eighteen zero seven eighteen hour eighteen  g is that he can be seen exiting the subway at the forty four second mark one second later he he has shown and was not one hundred percent clear the people submit that it is clear that he tries to hand off th his friends roger mercer who was the only truly unbiased observer of all these events from outside the restaurant he testified that the defendant tried to hand off this gun so that's at the forty four second mark and then at the forty five second mark one second after that defendant can be seen for the first time turning to the lot it is clear that up until that point he does not look to the left where supposedly these are the vice lords this this group of five went i should suppose there's no question at the people summit that that that is just simply not enough time to assess any kind of situation any kind of imminent threat happening from and from north of the suburb where the walgreen where where the hollywood and then there was one other store i think a cell phone store and then hollywood video i think based on common knowledge i think our own observation of these types of  i don't recall i don't recall but i think your honor i don't think it it matters even though the people kind of acknowledging the brief that is these five guys were in the in the vicinity i don't think that's  dispositive in any way of whether or not the threat any threat they posed was imminent i think the fact that what goes to whether or not this threat is imminent has nothing to do with how close these guys are it's what kind of threat are they posing and is imminent and in this case i don't believe there is any substantial evidence that these gentlemen are the one gentleman in particular had a gun pointed a gun fire a gun i don't believe there's any and the judge really didn't believe what she was entitle to that there was any evidence that there was another gun or any kind of threat that was then and regardless of how close they are that doesn't matter there's only two two individuals that testified that a gun was pointed at the defendant the group the phone during this entire incident and as the trial judge stated and i'm going to read it really reiterate here because it's critical he's pointing the gun the entire time this is going on he's propping the door open while the defendant comes out talking on the phone he miguel were in the defendant's vehicle beforehand of course and the group of five was throwing rocks and taking the car and then they threw a chair and raise miguel stayed in the car the whole time because at that point there was clearly danger and there was all this commotion was why on earth would these gentlemen exit their car if they believe that there was an imminent threat of any kind of danger they they clearly just exercise that they're going to stay in the car when there is the danger they're going to leave when it's out i would go out why on earth i don't i can't imagine and the judge couldn't imagine i don't see how rational folks can imagine why these guys would come out and come towards where this conversation was if there was any danger or any imminent threat at all i think that's very strong evidence that they're the defendant can understand that but what are they going to do at that point i mean if they the defendant didn't have to leave the subway this van then actually testified that he made the conscious choice to leave the subway he was asked so you don't need to leave the subway right he said no i didn't even leave the subway so there was there was clearly nothing going on here if why why would the why would raise and we go come out if there was any confrontation it clearly when they were in the car there was a confrontation they didn't choose to come out and join in or defend themselves or defend anybody else who might have been around i think it absolutely stance reason based on the video and all the testimony such as the testimony from roger mercer who said these these guys were long gone and i think his testimony should be that that phrase long on should be interpreted as the threat was long gone after the gentlemen were long gone i don't think there was enough time as i acknowledge my grief for them to be truly long gone you know two miles away any reason that they're not protecting the friend because they actually get to the sub the somebody before the defendant if the defendant was standing out there and maybe the five guys were kind of mauling the area then maybe it makes sense maybe this is all hypothetical could these artifacts maybe they also testified that they were all walking away that was their testimony is almost uniform and that was fact they all testify that they were walking away or knew juan our name was testified that the conversation was over that they were walking away  testified they were walking away roger mercer again the only unbiased observer outside he testified they were all walking away again the only evidence that there was that there was a gun was very flawed again i back to my original point the for the defendant's testimony if there was a gun is of course biased and page just passed he testified that he saw one of the guys up pointing a gun at them but the then that is that was three three years after the incident during the testimony but there's a video in this another video in this case of pager sanchez's interview with the detective the night of the shooting and he never mentioned i watched that video twice he never mentioned that there was a gun pointed at him i think that's pretty  it took him three seconds to do that how long were these other actions we're already actually took him three seconds after he exited the subway to start firing but it had been five or six or maybe i believe even eight seconds until the time where the gentlemen were out of the five guys were out of the frame of the camera that was facing out of the subway so in fact we're talking about somewhere between eight ten twelve seconds from the time they're all gone to that the time the shots fired i would argue i don't think this is  actually a long time and guys can you can move in right i walk and run a quite a distance in temple seconds but i think the important point here your honor is not the time i think it's the fact again whether or not this threat was imminent i think that's all that matter time and whether or not these these gentlemen were all within let's say a hundred feet of each other i don't think that's important all i think what's important all is was there an actual threat and in this case i don't believe there's any evidence that an actual threat and again i want to points that acting like there's any kind of threat if there was a gun certainly somebody would have ran away or acted to run away but the defense counsel and his brief argued that defendant was backpedaling while shooting because he was worried about being shot himself i don't believe i believe the video one hundred percent belies that statement because the friend it is clearly shown stepping up and confidently firing you're not going to do that if your facing an i've gone or if if if there's threat you're you're going to act as if there was a gun that's just a natural reaction as if there's a gun when you none of these gentlemen clearly in this video acted as if there was a gun pointing at them that's why the people said that that there there was  some sort of justifiable reaction to a justifiable of that and this case i don't believe there was an event the trial judge clearly didn't believe there was an advance again this confrontation was over at the time defendant exited the subway and i think there's testimony and video and there's video evidence supporting that that line of thinking and i believe that the the videos of very strong the evidence is strong here that the find it was through properly proven guilty of defendant second argument that this conviction should be reduced to second degree murder the people believe that again based on all the elements of counsel stated that the evidence here is kind of overlapping and deals with both issues that people said that that there was involved in the incident felt that it was it was taking longer than what it really was but this is really a matter of seconds kelso says well you can do a lot in ten twelve seconds but it's a very short period of time i  are and again he says that when he comes out of the store he's not sure where the voice lords are are in he looks to his right and he looks to his left he thinks he sees one of the voice or is holding the gun and he reacts right away because of the short time frame he did not have time to coolly and rationally consider is alternatives but case law recognizes that's what happens in these situations and again the defendant's not but the person finds and so for the situation it's not so easy and the law doesn't expect to react him to react in the perfect way it's interesting the state of appeal argues that he fired the gun too soon in the trial court the prosecutor argued he waited too long to fire the gun again we're struggling with this this this circumstance trying to parse out what he should have done what would have been the best course we can all probably read well what may have been the best course of action but this is happening in real time and under the circumstances of a young kid like this faced with what he seemed to get a completely unprovoked