followed the evidence the trial established that the victim fred hamilton was shot and killed like two shooters john brown one of the perpetrators was pursued from the scene and cornered by chicago police officers  testimony that that provided for the police officer in the van but was there any direct testimony on that issue or was that all brought he  testimony of the statements tomorrow he regarding with any testimony regarding the defendant's presence at the scene came through marley testifying as to what grounds my himself did not he did see brown with another individual however he was not able to identify that individual as the defendant what he testified to was that brown had told him that he was with an officer shot a police of course that exception applies if the state can establish by preponderance of the evidence independent of the hearsay statements so now the question yes where the testimony which was message to establish a hundred and thirty one hundred and seventeen phone messages between brown and leak the day before thirty on the day of the occurrence that's of the fact that the staff pushed by at least one witness if not to depending on whether we agree with you and miss ability of one of them but we have ned hamilton testifying other factors through direct testimony of miscible test is that sufficient to create an inference any conspiracy based on the notion that there was a motive established you're debating by saying well you can't recover cetera you can talk about that like ok but based on the extended phone conversations between the shooter and leak base ned hamilton if not also directly through another witness is when that be enough to establish by him forensic conspiracy and in which event then you're the the here since statements that came in should only be analyzed should only be of concern to us as to whether they were in furtherance of the conspiracy but but that the conspiracy itself has  up you are the short answer to that question as no i don't feel that the state made the requisite showing of a conspiracy such that the hearsay statements should have been admitted and i appreciate your honest question because you're getting to the heart of the shoe which is did the independent evidence establish that a conspiracy existed and one point that i would like to make is it's not that any inference has to be raised that a conspiracy existed the state has an obligation to make a showing by a preponderance of examination won't really matter because all she's useful for is to duplicate the testimony of ned that you heard threats i'm not why she contributes nothing to the next other than the fact that she heard others some other standard review that's an excellent question your honor and our brief we have cited that it is in fact an abuse of discretion standard because that seems to be what the weight of the forty six hour however unfortunately i don't have a cite offhand but it says that generally a trial court's decision regarding inhibition of certain testimony is revered for an abuse of discretion however the defense claim that a sixth amendment confrontation rights were violated in fact it's a question of law which is police officer in the man if that went into the next would that be sufficient again your own of that testimony is only coming through albert hall that's why i put in a certain way where would i suppose on the spot having to look at all the evidence and just adding in that one factor it would be significant if you had another witness come in and testified that they saw somebody they knew to be a police officer at the scene however we don't have that in this case we have is correct otherwise whether it's prejudicial or not is not no longer the question but whether it's a fish rights but turning back to the issue because i do think it's the crux of the issue whether or not the evidence the independent evidence was sufficient to show by preponderance of the evidence that a conspiracy existed between john brown and if the defendant i would like to run through very briefly what that the state is arguing that evidence consists of i think there are three key pieces of evidence that the state is arguing shows that there was a conspiracy between john brown and the defendant the first evidence they cite is eyewitness testimony which would suggest that this was a premeditated hit and they say i would this testimony which suggests that the victim's vehicle was disabled immediately prior to the shooting they point to the fact that a suspicious vehicle was seen circling the area shortly before the murder took place and finally they go to the fact that the shooters ambushed the victim wearing ski masks and gloves however the fact that this may have been a carefully thought out crime in no way connects the defendant edward leak to the commission of the shooting it doesn't connect him to either of the shooters quite support a conspiracy therefore they haven't shown that they actually under the cases were not looking at an individual piece of evidence we're looking at everything that was presented to determine whether they had step five hundred so what is the point of saying that this particular piece doesn't anything this shows a common plan or design on the part of the two shooters who committed the crime which in this case would be alfred marley and john brown now the second piece of evidence which i believe just as corden already mentioned would be the numerous phone calls that took place between the phone numbers that were listed to the defendant and a phone that was purchased by john brown first off this does nothing other than establish that a person using brown's phone plays calls to a person using  components by themselves the staff which are sufficient to establish a conspiracy the question yes whether human to all of these factors you together more at best unarguably us support a position that the two are associated in case law is very clear that mere association between two parties is insufficient to establish a conspiracy the motive issue motive issue whether the leak is the guy and whether he contract it with them they have the person feel i agree with your honor however apart from the fact that he had motive or you believe had motive there was no other evidence there was no evidence that payment was made where the vehicle was so we know how cell phone records in that location a vehicle where it third party in this case the information being that bennett was there before and after the shitty then the exchange of phone calls so it's not merely to do much to further the inference that leak was the third guy in the question was posed whether or not there's evidence demonstrate conspiracy are in that mission of he defended basically indicate his dissatisfaction we have a motive we have insurance proceeds we have insurance policy all of this evidence be taken together and as you point out that there was a third guy gets none this is i appreciate the court's time so i'll be very brief unlike several of the other exceptions to the hearsay rule the coconspirator exception is not based on in dishy of reliability as to the out of court statements  instead what courts have held is that the reason we have this exception is because otherwise it would be difficult if not almost impossible especially in certain cases for the prosecution to prove the existence of a conspiracy but that only emphasizes w initial threshold inquiry is so important i believe what the state is asking you to do is to eviscerate the protections which have been put in place that ensures the defendant's right to a fair trial which in this instance is state you if you're go have this rank hearsay come in that doesn't have the addition of reliability that the other exceptions have which is why we let the statements in you have to show by a preponderance of the evidence that a conspiracy existed in the first place and in this case they simply did not meet that burden basically what they have are phone calls phone calls and motive and i respectfully submit to the court that phone calls and motive don't show by a preponderance of the evidence