he was convicted of st degree murder he was also there is a finding of personal discharge he was sentenced to the minimum of twenty years for st remerge or the minimum of twenty five years consecutive for personal discharge one and critic with this point that there was insufficient evidence to prove gary bennett guilty of st degree murder based upon the testimony of an accomplice to that the jury should have been instructed as to the law as to that at that witnesses who testify in hopes of award must be not believed unless there's an absolute conviction of the truth of their testimony and issue five the admission of other crimes evidence now in terms of looking through all the evidence obviously there's some other issues in terms of whether the victim in this case is actually dead whether there is proof of death there's also at trial he raised an issue regarding whether there another person that actually committed the crime but putting that aside for a moment he issue in the case was whether there was proof beyond a reasonable doubt that gary bennett personally kill the victim in this case because the only evidence that he did that apart from evidence that he may have helped conceal the homicide or done other things was the testimony of sebastian vata counsel with respect to that testimony you aren't you and your briefs that sad i was testimony was corroborated but if we look at the evidence in this case there really was more was there not we've got the expert testimony regarding the cell phone activity we have the d n a testing the blood that was found underneath a seat covering in the car that stain so we have the searches and the  defendant's cell phone all of those factors corroborate his testimony is that right your honor that's exactly the point i think i was trying to make and i can think i can sharpen it up here as a leader gary b tt was present during the shooting or if he had some participation in concealing the death all of those all that evidence is corroboration for bottles testimony that gary bennett had some involvement of that corroboration for bottas testimony that it was gary bennett who did the shooting and not bought o o is non existant none of those pieces of evidence in any way whatsoever corroborate votto to claim that he's driving in the car and all the sudden very bennett shoots keith crawford and that it was hit not him that was doing the shooting and that's important because bottom so if bato is the shooter obviously he has the strongest motive in the world to say that gary bennett is the shooter doesn't eat obviously or there's not going to be any deal and he's in serious trouble and if you look at the whole history of otto's involvement with this case there is a ton of evidence that what he says simply doesn't make sense except upon the theory that he is actually the shooter why not or want well before he met gary bennett he had a relationship with an undercover officer and was giving the undercover officer officer information that's number one number two he even after the alleged after the murder but before he actually spoke to the police and became a witness look at bottles cost cross examination that made absolutely no sense why number one bottle had no information that the gun could be linked to a body because all he knew and all anybody knew was that he pro and it's you know in the record but all of it was heard by the jury and don't ultimately defer to the jury has a relates to be's types or credibility front it's usually but not always them over the years you wonder why courts have reversed and not deferred to juries in cases where the defects in an accomplice testimony were so extruding as to not constitute proof beyond a reasonable jury but as i'm saying to you bottles testimony has extremely problems very strained problems in terms of is lying about his motivations the whole business about the r that that really isn't that significant isn't all because he pled guilty to concealment of a homicidal death so it wasn't as if he didn't plead guilty to an offense well i think there's two answers to that question one and i take the i ninety thing st and then of and then i'll go back to you to the other your other issue that pleading guilty as to i ninety court if he had said originally given the route and then said listen guys i'm sorry i forgot i stopped on i ninety that would be one thing but that's not what happened what happened was they asked him to redo the route he read redid the route i ninety they did it another time no i ninety they interviewed him multiple times it was only after the police discovered independently that they had the car had looked down on i ninety by checking the cameras that then they said it said to him and he said oh yes i lied about i ninety and he never had any explanation whatsoever about why he would be lying about that which is how he characterized it not as a mistake  cross examine him he said that these the route was burned into his brain that he couldn't have been mistaken now it's one thing to say ok i was so out of it i don't know what route was taken but multiple times he told the police he didn't know what the route was taken and it wasn't i ninety so i think the reasonable inference is there something he thought would be discovered around i ninety around that exit where he  stopped that was going to implicate him could have been the cell phone could have been a gun could have been anything but that that lie rings out it rings out in terms of his credibility overall of course and there it in addition to the multiple lies and the multiple false statements he made now let me get to the guilty plea because your honor also asked about that this was this was basically he pled guilty concealment of a homicidal death he was sentenced to six months in jail which was actually time considered served so at the point he pled guilty basically got out of jail he had some sort of expectation he was going to be stay in the united states i don't know it's a mystery as to how he got that or or or what the what the reality was there but basically if he's the actual killer he's skating on a st three murder and he's staying in the country which is what he obviously wants to do to remain with his family his very sinister says and so on the fact that he pled guilty i think is of no consequence it's almost close to immunity at the time he testified he had been sentence so had he backed up on the prosecution had he said on the actual killer obviously auto who came up with the drugs for the for would presume we drugs he got from keith crawford that he was selling so the evidence that he's the shooter i would think would be would be would be strong it's certainly a lot of evidence that he's not telling the truth about whatever that happened we don't have to think to do is not telling the truth that's now it's a basic one a one credibility is since the jury that would lead us to make that conclusion i don't want to rehash too much but the the what's so unusual about this case and you can compare it to some of the other complex cases which i think where no more were actually stronger than this one that weaker he has a relationship with an officer and doesn't give any information as to the crime he tells multiple lies he in fact gets gary bennett in trouble but doesn't doesn't supposedly because he's afraid of gary benet but doesn't mention the murder at that point the body is taken and disposed of at his at a dumpster right near his girlfriend's house no and he also testifies again and this goes to the point of pleading guilty or immunity he had noted that he didn't say anything until the police officers told him specifically you're not in trouble you're not going to get in trouble what trouble trouble would be if he's big trouble would be if he's the st degree murder and we don't have to prove that beyond reasonable doubt but given that fact and given that we the various weaknesses in his testimony there is sufficient i doubt that the conviction should be reversed in the alternative at the very least the jury should have been given in a truck sion commensurate with  law they all involve situations where there is zero corroboration here i realize that you have a certain spin on the crime aeration which i respect but there is it's not the absolute absence of crop ration here and with that in mind was it not i mean it seems to me the judge was exercising his discretion in just utilizing the drunk as written not including this additional language you are i think you made several points and i want to go backwards and start with the st st st and go to the other ones st of all it's not true that i don't think i would have to look at the cases myself and i have to be honest in that i haven't looked at them from that particular angle because that was not an argument made by the state but number one in terms of the absolute conviction of its truth language some of those cases do not involve accomplices and some of them they just involve witnesses who although not accomplices are given you know are given great benefits or testify and hope  so there's a most of the cases are both the complex cases and reward cases but there's a minority on either and there's a want to go each one way so your honor i would agree with you that you know all of those cases there's no proper racial i just don't think that's legal which legally true if you look at the cases i don't think you would find that your next point was that it's within the judge's discretion  pleased the court good morning your honour's counsel miles kelleher on behalf of the people he found it was proved guilty of st degree murder beyond a reasonable doubt  defense counsel speculates well maybe they committed a murder well it sounds like is trying to resurrect the old reasonable hypothesis of innocence standard and as this court knows x nafta standard to review here this court has to view the evidence in the light most favorable to the prosecution and the question is whether a rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt and that's what happened here now all the facts about medo that helpful discussed were before the jury the jury was aware of they doze agreement with the cane county state's attorney's office the jury was aware of immigration status that was all in front of the jury and it was up to the jury to determine credibility resolve any conflicts in the questions related to that the st is as a relates to the april th levin shooting in the alley that doesn't seem to tie up in terms of the facts as a relates to what they don't even seem to tie up so that's my st question my nd question related to that is how is this not b your honor the trial court specifically put limits on the other crimes of a dense the trial court basically stated to the jury this evidence has been received and the issue of the reasons for it was alleged fear of defendant and may be considered only for that limited purpose why is that relevant because veda personnel they know had only lived with defendant for about a month or two so he didn't know defendant that well but he did know that defendant carried a gun and he had heard about these prior inciden i from defendant and and it was the trial court found that under the unique situation the facts of this case where you have an accomplice witness who is in the car when the shooting occurs and then chooses to remain with the defendant for several hours until the body is disposed this is a unique fact pattern and the trial court and its discretion believed that this prior evidence was helpful for the jury to understand why bedo did what he did and that is that nothing other than it could be in danger so obviously that plus i just saw him shoot somebody probably would be enough to explain to the jury why it is they don't was reluctant or delayed in coming forward all this other stuff i'm having a hard time viewing it as anything other than all string they does credibility well your honor there was the trial court determined that  you know all their crimes evidence has some potential prejudicial value but in this under these facts the trial court determined that the probative value of this evidence wasn't outweighed by the prejudicial effect because the trial court believed that the jury it was beneficial for them to understand why they tow feared defendant and why he remained with defendant after the shooting the trial court never told a jury that they could use as evidence to bolster beddoes credibility the trial court specifically placed strict limits on how this evidence could be received by the jury and that was it could only be considered for a limited purpose as to the reasons why bedo feared defendant it was not therefore you know it could not be used to bolster beatles credibility and i would just point out that the trial court has a lot of why discretion in this area and each case has to be decided on its unique facts what might be prejudicial in one case may not be prejudicial in another case and i submit that in this case the trial court properly exercised its discretion when it allowed these prior incidence of other crimes and and i would also western is how much is too much how much all these other bad acts becomes overkill i think that was really what justice friends question was driving at look you've got his statement he says i just watched this guy put a bullet through a guy sitting next to me what more do you your honor that has to be decided on a case by case basis and in this case i submit that if any error did occur it was harmless under the facts of this case beyond a reasonable doubt and that's because these two incidents when you consider this case as a whole they really were not a material factor such that without this evidence  e verdict would have likely been different there's no reasonable probability he does without vegas testimony beta's testimony state doesn't have much of a case so anything at all stickers or enhanced is his credibility is significant yes but your honor here there was an abundance of other evidence corroborating bales testimony so even if these other crimes were it mid if you had a large amount of scientific evidence that was consistent with vader's testimony and corroborated by testimony st of all you had the blood stain under the front passenger n a test revealed that the victim was the source of that blood you have the analysis of cell tower records those records indicate a debt in the early morning hours of august th defendant's phone was first in the area of his house in a gunk when then it went to the area of jimmy's house in west and then it went down to the area of quickly on a house in st charles and you also had made those phone travelling in the same direction from jimmy's house down to st charles where quickly animal lived and you also had the victim which was present at the party at the same time and then it's consistent with his phone travelling south on thirty one and then it abruptly stops sending outgoing messages outgoing phone calls then you have other evidence when defendant gets to colorado he sends a series of threatening messages and phone calls to bedo as actually saying don't be a snitch don't tell anyone about anything don't mention my name and they referred to a defendant or answered a victim as the package the body and then you had defendant making these internet searches the victim keith crawford group garbage dump where dumpsters emptied disassemble a nine millimeter ruger now why is defendant making these internet searches because he's worried he's worried about what's happening to the victim where was his body taken when the group garbage company emptied the dumpster was it taken to a landfill he doesn't want to police to find a body and this all corroborate testimony that bedo everything all this scientific evidence is consistent with what vader said and it's and it's also consciousness of the defendant's guilt so going back to the  question about the other crimes evidence this all demonstrates that this was not those isolated incidents were not a material factor and were not introduced to bolster beddoes testimony because you had all this other credible evidence scientific evidence that was entirely consistent with testimony and corroborated everything he said and and again as this quarter of the mentioned you know it was up to the jury to determine credibility it was up to the jury to resolve any conflicts in the evidence to draw reasonable inferences to decide how much weight to be given to his testimony and testified he was in the car he heard a gunshot he saw defend it with the guy and he saw the victim bleeding he was then he found it puts the gun and they go and says drive safely and if you don't drive safe i'm coming after your kids i'm coming after your family your honor the the our case was factually it was a completely different situation because you had a newborn infant that was killed and there was some question as to whether that baby had been born alive or dead it time so this is entirely different here here the jury received i i seven point zero four which required people to prove beyond a reasonable doubt that defendant performed the acts which caused the death of keith crawford now the jury could not have found that defendant had performed the act which caused crawford's death unless they st determine at crawford was actually dead and the jury in this case made a specific finding that defend counsel i somehow your audio too down st nd could you repeat what you were just saying oh i apologize your honor the jury made a specific finding that the defendant had personally discharged a firearm which proximately caused the victim death so the jury resolved the question of whether the victim was alive or dead again that was a question of fact for the jury to determine and there is ample evidence that the defense the victim was dead here because  you know not only did you have the vatos own testimony but you also had you know a number of witnesses who testified that they never saw the victim again never heard from him this was you know regina miles defendant's mother should make a lewis the mother of two of the victims children barbara latex another mother of the victims children george homes there is garcia they all testified they never saw the victim again never heard from him and then you also have the victim's phone at two nineteen am and early morning of this offen suddenly no outgoing calls no text messages and this is a victim who had used his phone quite a bit there is evidence of that in the days preceding suddenly nothing again so the jury resolved that question they determine that the victim was dead and that defendant was the person who killed him so going back to the question about the jury instructions the instructions that were provided adequately  fully and accurately stated the relevant law and it's just you know beyond commonsense to think that the jury could have reached a conclusion they did if they somehow believe that the victim was still alive clearly that wasn't the case this was a rational jury and there's no indication to believe otherwise and again the jury instruction that was given was a proper exercise of the trial court's discretion and i would also just point out that as to the non pattern jury instruction that you find it wanted on the accomplished witness testimony king is right on indicating that i p i three point one seven adequately informed the juries as to its duty regarding accomplished witnesses make justice bring justice jor supporting the credibility of body when for no other good reason as your honor is aware it is abusing of discretion standard however our our position would be on that that the trial court made an error of law when he admitted this for an improper purpose bolstering our reason to be fearful is because he was both stronger supporting credibility so i think as i think we said our brief did know what standard would apply even under an abuse of discretion standard as your honour's are aware with the trial judge is supposed to do is balance the prejudicial effect of the evidence against the need for it in this case where as your honour's pointed out where votto was saying that  that gary bennett shot somebody in front of him and then threatened him multiple times over the course there was no reason and no purpose to say that he we needed to know about what otto thought about other incidents involving gary bennett plus which this was very harmful because as we have said bob of those the principal reason for not coming forward that he gave again and again instruction the point is you could have said the same thing in hour about that instruction he did have said listen if the if the jury finds that the defendant caused the death then obviously they must have believed that somebody who's dead was born alive but the court said that in that instance shouldn't you wish is a question whether there is born alive or not the jury has to be focused in on that issue and in addition the fact that the jury ultimately found that bennett proximately caused the death that was a finding which occurred after they had already made the decision as to you know and the instruction they were given a d death it didn't specifically direct them to prove beyond a reasonable doubt the last point i'd like to make your honor is and i thought about this today and over the proceeding  days i would like to direct your honour's to a case which does not support my position but was not pointed out in applebee's brief which i was the attorney on it did not come out until after i filed my brief but the case is a case of people versus names young ones from the th district so i think in the interests of candor i have an obligation to make the court aware that case and i will send a letter with the site as well because goes to the question of whether the other errors were homme west particularly the air as to other crimes evidence and as to the accomplice instruction this was a closely balance case as your audits have acknowledged bottas credibility was something to behold in terms of the whole picture and therefore are there no errors were harmless and if the case is not reversed outright it should be reversed commanded interview thank you