question before the jury in this case was whether mr walker constructively possessed the guns found in apartment b ten and whether he had a prior felony conviction due to the nature of that charge and the nature of the police investigation in this case the parties thoroughly litigated in the court carefully vetted the evidence of mr walker's prior criminal history that would be admitted and ruled that his prior felony conviction could come in to prove the charge could be impeached with two prior drug convictions if he chose to testify and in order to explain the police presence the jury would be allowed to hear that there was a an open warrant for him on the date of is arrest i want to emphasize here that even if that was as all the jury heard about mr walker's prior history he would be here today asking for a new trial because the jury was never informed of the limited purpose behind this evidence they were allowed to consider it as propensity evidence which was already improper but the jury heard much more not to offer that instruction no counsel never offered that instruction and the court did not did not give it so the error is already apparent even if we only consider the properly admitted other crimes evidence that this jury heard much more than that the jury heard from all three officers that they knew mr walker prior to this investigation they heard not evidence of a single warrant but evidence that walker had multiple warrants on the date of his arrest and the jury saw twice during trial mr walker's mug shot and improperly had that mug shot during deliberations and then of course again the jury was never instructed on any limitation to this highly prejudicial evidence and were was free to consider it as the only evidence of police familiarity that was properly admitted here was again a reference to an active warrant in order to explain to the jury why the police were looking for mr walker but the statement well beyond this in this case  each testifying officer the prosecutor asked each testifying officer if he knew mr walker prior to the date of his arrest and two of those the two detectives a prosecutor asked if they knew him by s so it was already prejudicially before the jury that that these officers were familiar with walker prior to this current investigation and despite the prosecution's promise that he would try to limit the investigation evidence to the presence of a warrant a single warrant the prosecutor then in his opening statement told the jury that mr walker had quote outstanding warrants warrants player on the day of his arrest he then asked all three officers whether there was a warrant for mr walker instead of just one which would have sufficed to explain the investigation and sergeant williams then volunteered that walker had quote some warrants plural on the the mug shot which is as you've seen from the record was a photograph of mr walker standing against a wall with horizontal lines states not disputing that that was the mug shot and the jury saw that twice during trial was that whether whether we look at just the improper or other crimes evidence or the improper or other crimes evidence the jury was never informed and counsel never requested the extremely important limiting instruction to tell the jury that they were not free to consider this as evidence of a propensity to commit crime so whether as a matter of plain error ineffective assistance a new trial is or is required here because one or more errors certainly occurred in this case presented the jury with closely balanced evidence in what falls into the what the illinois supreme court as has called for decades now a credibility contest that is by definition closely balanced by was it closely bound counsel where the state evidence of guilt in the state had evidence of guilt but what the jury was presented with here is what people know supreme court has called and repeatedly a closely balanced case because the jury was tasked with on the one side weighing the credibility of the state's witnesses and the state's other circumstantial evidence with on the other side the credibility of mr walker and in his testimony mr walker addressed each aspect of the state case denied it or or or or rejected it and then it was up to the jury to decide whether they believe mr walker or the state's witnesses so under  cases from you on a supreme court this is the classic credibility contest that meets the definition of closely balanced evidence for prejudice purposes and again it's either as plain error or ineffectiveness here for counsel failure to object to any of this sort of request lynch please the court counsel my name is max miller and i represent the people of the state of illinois the defendant concedes he failed to properly preserve the issues of the prosecutor's comments use of testimony or the lack of a jury instruction for reviewing the issues have been forfeited however the state the defendant agree this court may consider the issue under the st prong plane air provided the defendant shows that both a clear obvious error occurred and that the evidence is so close to balanced the air alone threatened to tip the scales of justice against the defendant regardless of the seriousness of the error the initial step under planers obviously to st then from a plane error or the infective assistance of counsel test showing prejudice the st allegation of improper evidence regard police testimony that the officers recognized the defendant prior to his current crime now supreme court has held on people versed bryant's although the prosecutor does not argue that officers prior acquaintance with the defendant is evidence of criminal history the implication could be conveyed by testimony of the nature and for that reason it's better a unless somehow relevant relevant evidence being any evidence having any tendency to make the existence of a fact is of consequence to the determination of the action more probable or less probable than it would be without here's the state emphasized during its opening and closing arguments it was attempting to establish that the defendant had exercise and control over the weapons as he was the one using the apartment to the exclusion of anyone else that being a necessary  offense it's relevant in proving this because there's a dispute about the identity of the defendant because the evidence demonstrated he was managing at the very least his residential affairs under the name of bruce outlaw therefore it was necessary on the state on the part of the state to establish that the police officers were not confused about the identity of the defendant despite the obvious contradiction defendant living in and paying for an apartment under the name of present law now the defendant argues  that he's not disputing he was the person the officer saw leaving the apartment and arrested minutes later but this is not the only possible confusion of identity in this case the state was attempting to prove why were so many witnesses needed all because that was such a significant issue in dispute as to who is actually exercising control this apartment and i think in the trial strategy of the defendant below in the case below you see that their attempt to challenge the credibility of both the apartment complex owner's identification that this was a central issue that the jury be clear that we're talking about documentation that concerns bruce outlaw but is meaning the defendant and that for the sake of clarifying the confusion it was necessary for the state to bring this out about  most shots are generally excluded from evidence is because they imply the defendant had been previously arrested generally however again events is admissible if it's relevant whether it has any tendency to make existence more or less  as long as it's probative value is substantially substantially outweighs the danger of unfair prejudice now their own core court also said photos were irrelevant to any if if photos were irrelevant to any issue the jury was called upon to decide their improperly admitted but the photo defendant here is far more productive than prejudicial the photograph was st used to allow detective pinkel to substantiate that it was his means of identifying the defendant to the owner of the apartment complex based on her response that he received from her he was able to request permission to use an apartment and to observe the defendant next the photograph was shown to smith enabling her to testify that the person in the photograph was the person she identified as bruce outlaw and who detective being undisputed does nothing to address the purpose of the admission of the evidence which it has the defend it was exercising control the firearms being the sole resident of the apartment listed under the name of bruce outlaw and this state was required to prove the defendant's control over the department and as such it was necessary to inform the jury of the defendant's identity and the misleading nature about the identity of the defendant to the reference to the warrants the finn argues the state referencing other warrants that the court was never informed here i would just like to say that as the weight of the evidence which i'll call  as evidence that a police officer testified in the singular regarding to a warrant and any misstatement regarding multiple warrants the state does not believe could be any more than de minimis air because the defendant was information the trial court had already ruled the jury could consider and just briefly touching on the i p i criminal number three point one four jury instruction the th district has held that a failure to give that instruction in of itself is not playing air it can lessen the impact of improperly admitted evidence but as the state argued the overall weight of the evidence here is such that there was no prejudice there as it was and the weight of the evidence that i keep referencing st we had the testimony of bruce outlaw who testifies he knew the defendant he signed a lease for an apartment for the extended gave the keys the defendant and did not move any of his own property into the apartment had no need of a detective pin testified he could identify the defendant defendant had a warrant for his arrest which prompted their search for him he conducted surveillance of the apartment the ten the same apartment outlaw testified he acquired for the defendant he personally saw the defendant lead an re enter the apartment without knocking he testified he was involved in the search of the apartment where he found the rifle handgun live rounds of ammunition both for the handgun and the rifle and pinko testified that he also recovered from the apartment belongings of the defendant such as a traffic citation issued to the defendant under his own name as well as a form from the defendant's vehicle being towed and a two thousand and sixteen w two statement for the defendant and a college id from johnny logan for the defendant detective wisenberg substantiated all this testimony he testified the same fact defendant simply entered the apartment at will that he was involved in the execution of the search warrant he was responsible for maintaining custody of the evidence unpaid balance finally we have the testimony of familia smith herself manager of the apartment she testified that bruce outlaw was the individual came in to rent the apartment i say purcell on quotes because it was  actually the defendant smith testified it made in court identification of the defendant as the man she believed to be bruce outlaw smith testified the defendant had made a four hundred dollars rental payment to her she believed delivered him the notice of the remaining balance to be paid and she testified that she and the head of maintenance went down to the apartment to ensure that it was secured before the police were able to search now in opposition to all of this the defendant testifies on his own behalf that he was actually at a different in the apartment stay there all the time he used the apartment for a gaming system and the fin it testified he would occasionally go over there and play next box and he had no knowledge of firearms but defend it tells a story that requires the fact fired not just to believe that alan smith are lying lens briefly your honors i'll go to st order st on the prejudice of the state's recitation of its trial evidence or the trial evidence does not mean that the evidence was not closely balanced for prejudice pronk purposes under plain error or ineffective assistance sir mr walker testified and answered in his testimony to every single fact that the state had against him and the question for the jury was whether walker was credible or not and when that it is the question before the jury you want to scream court it has held for decades that no error of prejudicial other crimes evans can be allowed to interfere with the jury's determination and we know the jury itself consider the case closed they deliberated for four hours actually announce that they were deadlocked they got the prim instruction and deliberated another almost an hour so the jury itself indicated that this was a closed case and as is the nature of the evidence as to be a couple of the alleged errors that were discussed this speaks to both the what the fact that the officers testified they knew mr walker and to the mug shot which was which we know was from a prior case not from this case which makes it even more prejudicial it's evidence of a prior criminal conduct and the jury had i don't know that was to be introduced further and would reasonably infer given the looks of the photograph that it was a mug shot and we know that they had that photograph before this current arrest so it's it's evidence of a prior criminal conduct  and the key here in response to the state is that certainly the identity of the person living in apartment b ten was at issue but the officers knowledge and familiarity with that person prior to  arrest was not relevant because they never saw the person living in that apartment there their familiarity with walker prior to trial was carefully limited to the existence of an open warrant singular and then the door busted open during trial and all of this other alleged and all the other alleged other crimes evidence that were saying was improper came in so certainly identity was an issue too but that was had to be based on smith and that was testimony and the circumstantial evidence that the officers certainly should not have been allowed to testify that they knew mr walker prior to this date and finally your honour's on the  respectfully request that he be granted a new trial and i'd be happy to use the rest of my time to answer any questions you have any questions northern section ok gentlemen thank you for your arguments to sefton in the matter of being