store manager standing outside the store he spoke the strong manager did not say that anyone attempted to commit a robbery that he would show weapons that anyone used to threaten force he was not called as a witness at trial here's the perfect  time in a number of meetings the way that they were going to you know wrap a splice heat at i will agree to that rather there's no question about that question though is under the felony murder statute what we have here is a combination as i understand  criminals in whereby an individual would result in shot so without without mr garrett being the cause he would have to be accountable but you're leaving out the language it's inserted when we're talking about accountability and what the instruction calls for is that the defendant or one for whose conduct he is legally responsible obviously that was the theory that the state followed her because back to the  on robbery for a minute because i realized that there was not a verdict form for that i don't know whether that was a count originally that was not only by the state traditionally they do have an account for the underlying felony but it seems to me with a line of cases that i'm familiar with going way back you don't even have to have the offenders entering the premises to be guilty of attempted armed relatives for instance were the police receive a call from a anonymous person that there's two armed men hiding behind a gas station and  they go there and they find these guys who are armed they are running from the scene their explanations don't make sense one fellow says i was there were to buy some cigarettes he has no money they're convicted of attempted armed robbery they're never even enter the premises there's many cases like that work is the longest there's a fine line before between preparation and  an act in furtherance of the particular offense and certainly if you can convict people for not going in the premises who have crossed the line from preparation to a substantial  court ruled that's enough with you if and let's assume let's assume for the sake of argument that one of his co defendants proven to have shot did not share their common  one who fired the fatal shot from the physical evidence that they had and i suppose you can draw some analogy from that case here but it's obviously on if the re of accountability that's pressure and i think rogers when he was chasing him with a weapon the police officer this female saw him with a weapon and of course a weapon was recovered even though that weapon did not come into evidence he don't need the gun physically to prove that he had a gun he he did he was seen with a gun by three officers and a gun was inventoried now something happened about that gun that came up without the initials  right let me let me ask you because it's something that troubles me a little bit you're right the fagan case and in fagan judge posner in page eleven fifty nine i believe  mentioned stand in this case for whatever reason the state prosecuted the defendant in fear of accountability if the end of long pressed case of cases he states court but for reasons that have never been explained he wasn't charged with felony murder is this is this case in a similar past year where mr garrett was charged under an accountability theory as opposed to felony murder or are they the same thing in your judgment in terms of what the law yes well i think what's the distinction that he's trying to make here and is that something that you think is similar similarly situated in this case i believe what he's trying to say if you're part of a criminal enterprise and another gang member shot that and killed this person i believe that he but you live under a felony murder well maybe the distinction was there was no underlying felony in fig and he was charged under intentional murder and accountability but there was you know if if there was an aggravated battery that they all agreed to embark upon you had a gang fight going on that it's very possible that the state's attorney did not feel felony murder would lie in that situation and so they charged him with intentional murder and went on an accountability theory and a common design theory i think what  accountability is just the  that there was proof absolute proof either by admission or testimony or proof that the principal was guilty of the underlying felony and that accomplice was adds to the crime the case they just admitted last i do not think that is enough it is not enough to hold mr garrett guilty and put him in jail for thirty six years because perhaps maybe rio pull the trigger to kill yourself it before you set out on me just ask you something i believe last summer you moved to supplement the record there were some things that were missing videotape and some other volumes did you intend to supplement the record with the video tapes of these four other defendants who pled guilty do you know how that got into the record trial we disavow that theory there in closing argument the prosecutor argue that it was probably not real who shot the victim in this case what is important in this case is that we as a prosecutor in meeting our birth prove the defendant a test of software common design in this case the common design was to rock the family dollar store and that was conclusively established beyond a reasonable doubt established back among other things to find his confession and you writers have already view the field and it consider the record of this case the confession defended unequivocally testified for states to the prior planning of the robbery in this case through his girlfriend reeva was an employee of that store they had planned a number of occasions to be exact six or seven times they discussed his plan to rob the store and at a plant receiving a call from her on to day of the robbery defendant drove the three teenage co defendants over to the store and dropped them off didn't fett commit the offense of attempt robbed attempt on robbery but even then according to the defendant's self serving confession that he all he knew was that they were going to commit a robbery that's enough the fact that he from what you said that would certainly establish the offense of attempted armed robbery doesn't have to know there's a gun but we're talking about a common design theory the jury was instructed on common design and what they were told was it's not necessary to show that was the intent the original intent of the members to kill the deceased that is sufficient the jury believe from the evidence beyond a reasonable doubt the defendant or one for whose conduct he's legally responsible combined to do an unlawful act in the unlawful act in this case a armed robbery and the deceased was killed by one of the parties committing that unlawful act and that's the problem i'm having that we're having is was the deceased killed by one of the parties committing the armed robbery and were is the proof of that we believe there is evidence when you look at it who did it who did it well there is no testimonial evidence or the right eye witness testimony that says well what evidence is there so there's no testimonial evidence what evidence is the more they're saying here see one of the other take your pick it's one of the three was that enough to find somebody guilty of first degree murder it may be this one it may be that one we don't guns were said testimony we read to record some testimony from officer rogers then he saw them with guns when they were leaving the store where he testified based on his experience of police officers when one he believes they had guns right didn't see the gun he did not see a gun out in open the first time how competent somebody write a brief and experienced state's attorney and misrepresent to us that he says he saw the he didn't see the guns he saw a gun leader we can read the record two and two other officers saw a gun we know that it's not the gun so murder weapon we know that to well would respectfully disagree when you look at all the evidence including the defendant's videotape confession all of the other news that was presented by good police personnel including the firearms expert and and notably he testified that the board those recover from the victim had the same class and characteristics as the thirty eight that was recovered from real be it as it may when you look at all the evidence legally responsible for cause the death of the victim and that was during the commission of an underlying felony of attempt on bribery how do you how do you get around how do you explain  defense reliance on the fake in face i know you i know you say that we're not duty bound to follow seven circuit cases but i'm judge posner clearly in interpret in our wall and five days to accountability pst comes right out and says that it requires that the person ada better agree to aid the person who commits the actual crime the person but i just don't have that here who among the two either fagin for d d shot and killed the victim and the cause for what the evidence showed in that case was that the victim was killed by thirty eight caliber pressed up against his bare a close range shooting from the back while fakin was armed with a twenty two caliber rifle and d d was armed with a shotgun so in that case the defendant fadia was prosecuted as a principal under an accountability theory which we do not head in this case so we in that case head to prove that he intended to kill the victim exactly what they were the rationale of their holding was was a the state showed nothing more than the principal was a stranger to the common design if there was a kind of sorry i misspoke felony voter theory and here because we proceeded under a felony murder theory all we had to prove was that defendant took substantial staff to promote or facilitate the commission of  bad feeling in his gut so he left and according to him he drove to his chores mother's house but again he got a different bad feeling so he returned i mean if that's not something that's approaching a lie i don't know what is so true he could reasonably infer that he stuck around long enough to see the mounted band and best out of the store and drove him away and not only telling that you know that i'm going to go handle some business and way she asked well what business he repeated the same thing and laughed and she testified that both defendant and the man take change back to the apartment twenty minutes later and well did he do at that point he asked elissa to go to the family dollar store to see what's going on and he himself later said that he went back there himself is sad the police and the ambulance and drawn from all the evidence was that three co defendants after being trapped after had to find it went inside the store and one of the three shot and killed him it's not the case where some other person who took this opportunity other than the three defendants seized upon this opportunity to shoot and killed it when you look at all the evidence in the short span of time in fire and and then saw tell you come running out and looked up with them there's just no proof in the record as to anybody else hearing that gun shot or gunshots if there was more than one you've got a guy outside of a manager who shrugs is shoulder and makes a nod toward the door for officer rogers and he doesn't testify we don't know what he heard we don't that somebody fired a gun at the time that all of these kids and the defendant was down there sure there is he had a dead victim how else could he have come up that i don't know and i supposed to prove that myself am i supposed to  that that happened no your your honour's travers to look at all of the evidence in the light most favorable to the prosecution and to see if they could have found essential elements that if us and it is our position that we have done but reasonable inferences and i think that gives rise to and then for us that defendant or one for who's kind of his legally responsible for calls the path of the victim and they did that different what we have to prove or is that the co defendants killed the victim in this case during the commission of an attempt on robbery and what we're saying is yes we don't have an eyeball witness that says i saw one of the three shoot and kill the victim but the reasonable inference based on all of the evidence is rise to the fact that one of the three did in fact shoot and kill the victim so that is an entirely different and the case of as failing to prove an essential element of whether or not the person who possessed the gun in church row was a convicted felon it could be argued here that you know this the whole problem we're confronted with stems from prosecutor decision here on how to try this case here the absolutely was there was plenty of evidence in those statements which never hit the court on them somehow found their way into the appellate record here but none of that was heard by the jury and all that gives us cold comfort is re contemplate what to do here i absolutely agree but we have to deal with the case as it is defendant would stand up here not just to this court that there needs to be more evidence he's basically asking for a perfect set of evidence  record before this court i believe we don't know that the evidence is more than sufficient to meet our burden of proof of proving defendant guilty beyond a reasonable doubt in this case we don't have a weapon we don't have a bullet there's no reason to believe that any more recently the mystery of it and this third man and just one final response to this day indicates that all they have to