clerk please call first get in order to admit other kinds of evidence the threshold question is whether a crime was committed and whether the defendant was involved in this case the state conceded that wander see it was not connected to the theft of the truck therefore the evidence of right bring it in out objecting simply cannot be considered a reasonable trial strategy for defense attorneys some trials energy requires counsel to use the rules of evidence to avoid the admission of prejudicial evidence whenever possible in this and so he did not want to draw attention to that that did the frock it was his position that wander see it was never in the trunk so he didn't want the jury to focus on with after the truck and essentially in their minds connect garcia for the theft of the truck the problem with this strategy is that the evidence relating to that after the truck was simply not admissible and the jury never would have heard any of it but for his agreement with the state to allow it to come in and in this case the evidence of the theft of the truck was highly prejudicial to mr gates it in this case the judge gave it the other plans instruction i p i three point one four which in most cases that's meant to instruct the jury on the limited use of of that evidence however in this case the instruction actually compounded the prejudice to mr garcia is it specifically told the jury that there was evidence connecting mr garcia to the theft of the truck when in fact there was no such evidence presented and the instruction was worded i quote evidence has been received that the defendant has been involved in an offen of the stolen motor vehicle was the other one of the other kind that was being referenced it was always in reference to the theft of the truck and moreover simply being a passenger and he's still in vehicle with no other evidence is not enough to support the position of a still  vehicle with no evidence as to knowledge or control of the truck he was simply a passenger is all and he witnesses ever testified to and in this case and allowing one of the jury to make the connection between mr garcia and the likely that he is than the person getting into the truck there at the century it shows some kind of advance planning or these opportunity because he had already procured a getaway vehicle however without the evidence of the of the theft his connection to the truck in in usual cases such as that the jury may simply convict him because he's committed other other offenses and is a bad person who is more likely to commit a crime fact of the truck itself is relevant yes because it was it was the alleged getaway vehicle from the shooting that they could not discuss that truck that's your business that's correct the theft of the truck has absolutely nothing to do with the shooting or proving  reasonable probability that that would have been a different result of this case open because in this case mr christie presented three alibi witnesses who stated that he was at home asleep at the time and the state presented in doing this truck makes it much more likely that he was the person getting in the truck as the tuesday when this is six witnesses set over if you have no evidence relating to the fact of the truck all we have is a couple of witnesses who said i saw him get in the truck and it drove away  stolen or not stolen i don't know anything about it i was a whole as like three alibi witnesses were custom and that's exactly the point is that it's if you believe the alibi witnesses mr garcia was never in the truck had nothing to do with the truck so the fact that it was stone is completely irrelevant and immaterial to this case and so allowing this to stay to bring in evidence that it was stolen and the jury instruction informing the jury that he was connected to the theft makes it relevant when procure a getaway vehicle and you know in advance of the shooting perhaps which again makes it much more likely that he would then be the person getting in the truck after the shooting however if there is no evidence of that on this theft all the jury hear all the jurors hear is he got in the truck when the shooting was done and it's much more of the only connection and it gives his alibi witnesses much more credibility or it at least makes it doesn't change their credibility but without knowledge of the prior theft they alibi is much more believable because there is not this other well if you stole it well for when this is observed the shooting and two of them were not able to make any that identification of the shooter but you did identify the shooter and their descriptions were consistent of a heavyset hispanic man and both of those were particle what he referred to as a unique particle and he testified however that in order to consider his test positive for gunshot residue he had to find three of these particles already only found one particle in that study they took two hundred one samples from locations that had not been exposed to the discharge of a firearm and therefore should not have any gunshot residue and all those two hundred one samples twenty three of those samples showed a total of fifty six three component particles which translates to a rock in the eleven percent chance of finding it at least one three component particle where there should not have been any and and this source of possible contamination is something that defense counsel  did they discussed a variety of studies in which they found three component particles and brake pads and fireworks and as a result they cautioned scientists against using the term unique when referring to these particles come from she was wearing it that day and they wonder see and never wears her jacket and however in closing arguments these stick argued that her testimony was on reasonable because of the presence of the single particle is the state argue that the presence of this particle showed that that jacket was a round the firing of the discharge of fire over the expert testimony said that the areas you sample may not have been in the presence of gunshot residue and had council these weaknesses in the experts testimony and the inconsistency in any the possible source of contamination from the chicago police department facilities themselves the jury would have had a more complete picture of the  your honour's the proof of other crimes evidence that counsel spoke of is completely and was completely irrelevant during the trial the case involved a shooting and the defendant getting into a moving truck that was highly identifiable by the graffiti and other elements of it it was a stolen truck that then fled the scene southbound and car love and ended up a few blocks away which was also a block or two away from the defendant's home the fact of the car the truck was stolen is completely relevant when the investigation was going on and the police arrived at the scene of the shooting to figure out who the shooter is and they have this description of the shooter and they have a description of the vehicle that was used to flee and then they go and find that within a half an hour south they're trying to figure out the identity of the truck to see if they could figure out who the shooter is are you  absolutely not and it was never argued it was never discussed it was never are alleged at all at any point during the trial that the defendant had anything to do with the fact in this case but it doesn't matter the defendant is and the defendant now can't sanitize the truck and state that we're going to talk about the truck but we're not going to acknowledge that it was stolen especially in a case like this where the defense was alibi so the defendant is saying i wasn't very it was was not the defendant that was not the driver of the truck but was indeed the defendant if murder going in a specific direction down a few blocks down the story leaving the car within a block or two of his home where they found him within a couple of hours one of the we're told it's important in that we're tracked we first of all the state had a right to exclude the driver of that truck or the owner of that truck as a possible shooter or defendant in this case so that's one reason why it was important but it also goes when the police are investigating the case and trying to figure out who the shooter as they would be remiss if they didn't figure out who the owner of the truck was so they're linking up in finding out that the truck is st about who the true driver or owner or whatnot of that truck was so it's important to show that the police conducted this investigation were trying to take steps to figure out who the owner was who the shooter was and were going through this process the defense can sanitize the track now and say oh oh wow and addition the fact of the truck was stolen was just it wasn't honed in on it wasn't in a big issue it was mentioned one time in opening statements in a i believe it was merely stated that it was a sterling moving truck with writing on the side that was the kind of go without mentioning in jury instructions which the jury is going to follow it said you know you have evidence occasions raise questions above the stuff small well the trial court raise a question because the trial court knew that the appellate court at focus is in on and this type of issue and wanting to make sure that the record was protected but it will state wild that this this issue of whether or not trial counsel was ineffective his trial strategy was really an issue so regardless of whether or not to strike a stone or not the defense theory  trial was that they weren't there they had nothing to do with it and we don't care because the defendant wasn't wasn't around the trap he was in if the shooting didn't drive the track and the defense advocated that  by choosing not to object to that they didn't want to highlight the defense attorney did not want to highlight this fact and drag tend to it and there was an extensive conversation during the sidebar after opening statements where the defense attorney was extremely clear that this was a tactical decision and that he was choosing to support the alibi defense i believe he specifically stated why would i object to that when we're claiming that the defendant wasn't there so clearly it's a tactical decision and a strategy that he was pursuing a try oh and it was very reasonable there's no evidence at all that it was unreasonable his whole theory and his home process during this trial was to advocate the alibi de and he did settle and that was a choice and much stoppard's must be given so that strategy and that the trial attorney decided to go forward with intuitional a judge i'm sorry i apologize your honor  apologize there was absolutely no prejudice shallow whatsoever your honor spoke of the additional witnesses there were in the case there were four witnesses to this shooting two of whom identified the defendant identified the track identified the jacket and the other two witnesses although they could not see the face or identified the defendant specifically gave an extremely consistent description says in the case but that was in addition to the gunshot residue and indifferent to the firearms out of it and that was collected from the scene showing that there was one gun use space on the fact that a few of the couple of the firearms casings matched each other and were fired from the same weapon so that was also part of as while in addition the officers testified and many times to fight about when near arrived at the scene and where they saw the truck in the identifications involved of the truck and of the defendant at different points during that day so the evidence in this case was overwhelming and the defense has failed to show anyone and any way that the defendant was prejudiced even if it was considered which it's not a position that it was by allowing this the facts and that it was a stolen track additional aim the defense used this evidence to support their their theory again and the defense argued at trial that nothing in the trunk cannot to the defendant to the murder and that was a big piece of their argument and a big piece of supporting their alibi they argued there was no d n a found in the track there was no there were no fingerprints found in the track there was nothing at all found in the truck to match up the defendant to the truck at south so they use that to their mention any specific crime it's just the instructions correct but it's the jurors who are receiving the savage ends and so if they're focused on the shooting in the murder they're receiving this instruction as a general instruction as part of all of the pieces of law that they're receiving and the and it's to protect the evidence and to protect the record and to protect their verdict that they should not use anything that they heard in terms of any type of other instance or crime as anything but the circumstances leading up to the arrest so it doesn't talk about that the defendant stole a car or the defendant stole a car two weeks ago or whatever that issue was it merely tells them use anything else that you heard about any other related incidents as part of the circumstances  this arrest and that was what the and struction focused on and it's interesting that that was what was given to protect the record and the defense now is arguing that that somehow biased them it's meant to protect the record in these instances it's meant to protect it if any instance of another crime is mentioned or comes out and our position is that it does sound this case so you agree with the trial strateg it's not that i agree or disagree i think that defense counsel had a very reasonably a very reasonable trial strategy his theory was alibi and his his he sort of had the punching get out he went in he tackled what he needed to tap well he hit the issues he needed to head and he didn't help on things that weren't relevant and that was his theory he was just going to support the alibi defense and he did sell and he went right in and all of his points were geared towards the defendant counsel in their brief and here puts a lot of emphasis on the study that was done by scott backwards and that study was never part of the record at any point until appeal and i submit that the court should not acknowledge that study or use that as part of the decision on appeal because the court is an actual speaking on inconclusive result again a very reasonable trial strategy he went in for the alibi the defendant wasn't there he had an alibi for the jacket the jacket wasn't there the jacket was being worn by the in addition whether or not he class examined on this issue with the study that's now being flagged up would not have changed he's still the main goal for his cross examination and the biggest point which he used to argue was that the results were inconclusive you can't get much better than that from his from time to funds perspective they use that at trial that's what they honed in on that would not have changed that they want to preempt the defense argument that maybe the driver was the shooter or something like that however there is absolutely no evidence that norm a lot do with the shooter in this case and so the defense could not be good faith have argued that he was an alternate suspect in this hit and it would but not based on the evidence in this case because as i said the defense knew who the owner of the truck was and knew that he was not involved in this and they would not have argued that and that's supported by the fact that all they have reviewed was there was no evidence connecting mr garcia to the about the theft of the truck before the jury ever heard about his d n a the d n a came in as a stipulation of the end of the state's case so the state had a witness get up there and talk about how the truck was stolen or about the theft of it and the jury this point had not even heard that his d n a was in the truck all they heard was him talking about the truck being stolen and only later after other witnesses income and when he was separated in their mind then the state said oh by the way that guy's d n a was in the truck so the state's argument that they used the fact to explain the d truck in where the truck came from but it had nothing to do with the identification of mr garcia not a single witness who who identified mr garcia said anything about the truck being stolen the fact that the truck was stone had nothing to do with the witnesses who identified mr the only person who testified about the theft of the truck and his testimony had absolutely nothing to do with the murder and all the witnesses who testified about the murder said absolutely nothing about the theft of the truck they were completely independent from yes and to a recent decision out of the second district people the watson in that case   if if you don't want me to that's fine i have a copy of the case of this they would like to look at it stay would you like an opportunity to respond case the outside materials were being used as a reference sure the availability of the arguments the defense counsel could have made those items not being offered as evidence were saying that counsel should have introduced these specific items it was merely as a reference to understand the background