ok good afternoon your honour's counsel may have please the court i stand before you today on behalf of my client twenty one year old gavin masters who was convicted of murder and attempted murder in an adams county courtroom and was sentenced to one hundred fifteen years in prison this conviction was not based upon any physical evidence forensics fingerprints gunshot residue to orne nor any credible eyewitness gavin was convicted because the trial court allowed the state dinner duce other crime evidence that gavin attempted and failed that is to steal a gun from a package while working at u p s eleven days prior to the shooting gavin was convicted by this other crimes evidence that an adams county jury should not have heard this other crimes evidence was first introduced to the trial in a september twenty fifteen hearing a couple  months prior to the trial and emotional to admit over at the time the state the don't have with witness to testify to this other crimes evidence the state in presenting its motion asked the court to assume that it would be able to locate a witness who would testify consistent with the police report a report that said that gavin had attempted to take a handgun out of a package at u p s but failed and he was subsequently fired the state in its written motion argued that the other crime evidence was admissible for the issues of identification intent and motive recognized exceptions to the rule allowing other crimes evidence to be heard the fifth district and people versus linley a two thousand and four case cited in appellant's brief page forty recognized the state's motivation for introducing such evidence and the creates for defendants like gavin everyone understands the persuasive potential that proof of other criminality packs the course says but those charged with the task of proving people guilty beyond a reasonable doubt understand it the best the court goes on to say that make no mistake about it any prosecutor worth his salt will try very hard to persuade a judge that reason other than prove criminal propen and if order to introduce evidence of extraneous criminality the prosecutor in adams county being worth his salt argued his motion and tried to persuade a judge that he failed that the failed attempt to steal a hand good can gun could be offered to prove identity he appeared to abandon his intent and motive arguments which were included in his written motion and of course the court ended up needing it for purposes and if that is correct your honor and they did have that if least in their motion yes your honor that they they they did in so since we know that it can be admitted for either reason other than the allegation that gavin mastered attempted but failed to steal a gun levon days prior has no connection or link to an ant and i go through the cases and balance brief that talk about intent and in those situations where those on charge crimes are used to prove intent and sometimes it's referred to your honor isn't test motive i think sometimes they can find those in those opinions and i know as as i go a little bit further here in my oral arguments i'll discuss those cases and how intent applies my point of bringing up the abandoning of the argument is not to say that anyone was clearly wrong for abandoning that but more to point out explain the trial ruling so the trial court although intent was listed in the written motion the trial court grabbed hold of the ten even though the prosecutor was like arguing  identification and i believe identification was at issue in this case and i'll go on to explain that i don't believe that intent was at issue in this case is your position that the trial co only consider the bases that's something's been offered for in determining whether or not it will be admissible no i'm not saying that it can only do that but clearly it has to perform some sort of analysis and apply the law in determining whether or not one the evidence what is that issue in the case whether what is the evidence of the on charge crime that is going to be introduced and then what is the connection between the two and the court did not do that trial court did not do that in this case the court stated that masters have been charged with a specific crime intent to kill on the course said i think trying to acquire a gun goes directly to whether or not there's an intent for him to kill and so so i believe the evidence is relevant and the evidence should be allowed as to that specific that specific situation the court went on to say and so what the court has to do with this we're going to have to wait and see if in fact he the witness gets served and when then we're going to have to have a hearing in the middle of the trial and before the trial as to whether or as to what the witness is actually going to say so the court at that point making his ruling on this motion to admit hadn't even heard any of the evidence because they could not find the witness who was going to testify that these facts now complete and thorough review of the record showed would you clear for the council was not of were aware of the evidence pertaining to the know hitter tameness me yet your view you are correct your honor and if you look at the record in the motion to admit the prosecutor attached the police report that indicated essential an outline of  allegation it's really unclear as to who is giving the police officer that information it's just the information that you have a masters used to work for you yes and there was this incident and he attempted to steal a handgun from a package and he was caught and the handgun and it up being packed up and resealed in the box and master fire and there was a witness listed as a supervisor in the police report brandon head and brandon head was the state's witness but at the point that they were arguing this motion to admit a couple of months before trial the state had yet to serve him with any sort of subpoena they didn't know where he question as far as the order of the witnesses your honor i cannot recall exactly where brandon had showed up in the trial as far as order of witnesses but i will say this your honor the court made its ruling as it appears two months before trial and that's why i was saying a complete and thorough review the record shows that there was never a hearing as to the evidence so brandon head is found literally the day before the trial and there's a police report generated where he's interviewed the night before and then the morning of the trial that police report is handed to defense counsel and then defense counsel as from for example let's suppose the evidence is or is going to be that the defendant grabbed the gun from another person that was in the room and i understand about taking it out of somebody else's back mean that was more of a spontaneous act and in terms of stealing a gun ten days before that would factor into me as i would have tried to decide what's the connection and i might have decided the way that your argument right but i might who knows but i would have had to know i would have had to have the context for why it was important that he was trying to acquire a gun re still going in and i agree with you your honor and i won't pretend understand what exactly judge adrian did or did not know at the time he made his ruling all i can go and all we can do is go from the record and the record indicates that he knew nothing i mean there is there  is no discussion or analysis of here's the crime charged here's the evidence that the state intends to present and here's what brandon head is going to testify to even after he's found there's there i  would contend there should have been an evidentiary hearing outside the presence of the jury to determine what were in that head was going to testify to and then the state would have had to present their argument to say your honor i know it was a failed attempt to steal the gun and now we know that brandon head is saying that they got a master said he stole it because he was going to sell it someone else so he's not saying that he stole because he needs protection he's going to use it eleven days from now he's going to shoot two people he's not saying any of that he's saying it's it's a commodity it's something that he can sell still staffed it was wrong but it in no way ties to this crime that occurred  prepared to shoot someone to kill someone for your protection in engaging in that enterprise i think there that a jury could draw inferences and the state could argue all of those things and and that story and that that backdrops they are without this other crime evidence of that the the state in this case presented their theory and their story intent motive they were not it issue this was a drug deal court in the state gone bad gavin masters was the drug dealer the two individuals in the case the one that motive in fact the other crime evidence that was presented but never objected to and i can only assume it was an object to do because the court one of ruled that it was legitimate other crime evidence was the marijuana so there was a drug sale drug possession going on and that was other crime evidence in this case and i would argue defense counsel should have said your honor object this is other crime evidence the court would have said no this goes to motive this goes to even a continuing narrative a description that gives context to what happens however we're going to say that since it gives context since it shows motive it's a legitimate purpose and then there should be a limited instruction that's given to say that the sale of marijuana goes is another crime gun charge and it goes towards motive or intent and so the other crime evidence that was legitimately presented in this case that is clearly waived because it was never argued tells the story the court didn't need the eleven days prior gone in order to show intent nor did they needed to show identification nor did it eat did it show identification or intent the intent cases here and i think there is going to be some discussion i assume that there will be with regard to the issue of whether or not intent is that issue in every single case and whether that is a bright line test and your honor i i would argue that the fourth district has not adopted a bright line test i know there's discussion regarding johnson justice stevens position that lot of time in the brief on clark which i would call the court's attention to because the state argued in clark the same thing that i believe the  and that the state can introduce other crime evidence relevant to intent even where the defendant does not contest the element of intent at trial that is to say that in any case requires proof of intent intent is deemed to be  an issue for the purpose of the admitting other crime evidence and the clerk or goes through its analysis talks about people versus heard explain in the illinois supreme court has never taken that  position and then i also talk about johnson where the bulk of the opinion focuses on a continuing narrative that's a case where the defendant goes on a vigilante mission and commits a lot of other crimes and ultimately ends up busting into the apartment of two people that mistakes their apartment and in his alibi he says i wasn't not only was i not there but these are complete strangers which they were why would i bust in their apartment and shoot them well the fact is that you have to show the other crime evidence show a continuing narrative to get to the point of why he was busting in on those  those innocent and strangers who had nothing to do with anything in the case so your honor your honors the the issue of intent was never at issue in gavin's trial and so the court was wrong and in finding that that this evidence should go in under a theory that it proved intent let me ask you a question so so there were there were nine people there who should be able to tell you who shot the gun two of those people one ended up dead the other one injured  the other seven there was a lane a bone of the bone how she was the daughter of the owner of the house she lived in the house she removed items including the marijuana out of the house she was not called by either side because the record shows that her lawyer had told that both prosecution and defense attorney that she would invoke her fifth amendment right she would be to testify there was koby tipton he was one of the latent plaintiff friends he did testify he was in the room when the shooting occurred but he did not know who shot bowzer smith or osborne elaine i have another friend chelsea home in the house she didn't testify elena had another friend autumn and when she was in the house she didn't testify  out guild they did testify and that's one of the three your honor you're referring to he's fifteen years old he lied to the a few police in his initial interview later he tells the police that gavin is the shooter but he testified to key facts that he had the did not know who shot the gun but later told an officer what he wanted to hear that was the quote in the testimony after the officer threatened to charge him with murder unlawful use of a weapon felony sale drugs and felony possession  testimony was not only inconsistent with his prior statements but it was inconsistent throughout his testimony he impeached himself between cross and direct examination then there's gavin masters he's laying his boyfriend not friends with anyone else not identify who shot him at the hospital could not identify who shot him and one month later after gavin's arrest after been publicized in the in the media was born was interviewed again again one month later he'd been supreme court held that the proper standard for reviewing the admission of other crimes evidence is to use the discretion standard of review which as your honour's are well aware of or hires this court to uphold the trial court's decision so long and it's not as if it's not arbitrary or and reasonable to the extent that no reasonable person could adopt that if you the trial court w was going to attempt to steal something because he wanted to sell it what does that have to do with identity or intent or mode your honor it has to do with intent motive and it also somewhat provides a continuing and the state argues that this evidence bears on defendant's intent and people first johnson this court did specifically state that intent is at issue in crime increased involving specific intent crimes and temporal proximity to the shootings that are ten days yes your honor it was the state's theory at trial that the defendant armed himself with firearms during his trial drug transactions so that in the event that something went awry as happened he had it with him at the same residence i believe it was two days prior to the shootings here and it was when to couple all the evidence together the fact that there was a marijuana sales going on at the time and there were other witnesses who indicated the defend was selling marijuana out of the game residence when you put all of that together what you have is a person who is selling drugs out of a home who arms himself with a firearm during these drug transactions so that if something happened as did here understand what the ten days there were would have to do with that they would buy this story that guy's been gazing this kind of activity with very often arming themselves so that they can protect themselves and they're engaged in a dangerous trade what difference does it make if they're also potentially a thief or they would steal anything from the u p s truck that they thought they could they could sell don't need anything like this to protect myself i can buy some cheap saturday night special to protect myself i don't need this which if i'm of the jury and i think and you know the guy's got a gun to use it firearm and to protect himself or to retaliate in the instance that something went wrong which is exactly what happened in this case counsel your argument there the shooter in this case right not necessarily your honor and any case involving are you sure there's an argument to whoever the shooter was that pumps three bullets in the person who tried to steal the dope and run away and then turns and pumps another there's no one else of loving days before and apparently from what i've understood so far maybe you can explain it better to me the trial judge made was making a decision here without any knowledge of what the state's case and she was going to and defendant presented argument with respect to whether that whether the evidence was in the simple to the issue of identity but it was the trial court itself that kind of shifted the analysis in to be intent aspect however the trial brandon head that is when the trial court made its altman decision and so the trial court did not make it final decision at the pretrial hearing two months before trial and said it looked at what it before it and it told the parties that it was leaning towards admitting this evidence it's her bit of intent and then ultimately reserve ruling until later until the time that brandon head was actually served and ready to testify at trial and so the trial court excuse me know what hed was going to say and then just the general theory of the i mean the state and made it clear that it's theory was that the defendant had had the intent to keep himself armed during the strike transactions and that this incident was a drug deal gone wrong and it was it's theory that this prior act demonstrated defendant's intent and motive to him that explains why skyler osborne and why randy same time be so fun to flee prejudicial as to constitute a structural heir and as we are aware the erroneous admission of other crimes evidence may be deemed harmless so it is a logical for it to also be at the same time defendant hold a firearm out of his waistband private for shooting thousands more than osborne and three separate individuals including one of the victims identified defendant as the shooter and while it is true that some of the wi gave inconsistent statements and testimony i feel the investigation in the proceedings a while there was additional reliable evidence such as the surveillance footage as well as another one this is testimony served these actions from the cooperated these stories and for these reasons the evidence was not closely balance because the quantum of evidence weighed in favor of the state and the harmless error analysis followed a separate is you reach the similar result because you have cooperating corroborated evidence showing that defendant was the individual who shot these two men and that he shot these men after following a firearm out of his waistband they also have surveillance footage showing him placing something indicating that once inside the find in the firearm out of his waistband and then the two men after randy bouncer smith attempted to steal the marijuana so for these reasons the state would request that th i think based upon the questions to the state the johnson is a good takes the focus off because i think it demonstrates a proper analysis of these issues of other crime understand it so so that the court did know exactly what the case in chief was the state did not use the other crime evidence in their case and she it was only after the defendant in that case put all of the issues of identity then and then motive saying i wasn't there i don't know these people why would i ever shoot these strangers that then the court was able to connect things and use continuing narrative in intent and then motive and identification all those separate things that just studying and then wrote writes about in his opinion so i think that that case is a demonstration of a trial court doing the right thing in analyzing and creating a record that just didn't occur in this case i wish there was more record to show what the trial court knew at the time although this issue was taken up three times the only time it was taken up as to the admissibility was the first time in september two months before the trial if you look at the record as to what the discussions were on the day before in the right there there was an objection there there was a motion to admit and the judge ruled on the motion to admit and september and the judge stayed with that ruling and then defense counsel although he did not well and and i think the comment was made that the court knew what was in the police report based on the new interview with brandon had when he was interviewed the fact is the record does not indicate there was any sharing of that information with the court at least on the record so i am not sure maybe maybe there was something off the record to clearly the record does not indicate that the court took back up the issue of whether or not it was going to admit that evidence during the trial there was discussion on whether or not it was the defendant one of the continuance and things of that nature on the issue of forfeiture your honor the denson case lays out the requirements and  believe that the defense counsel although i wish would have argued more adamantly about this issue clearly met the requirements to preserve this issue for appeal so i don't believe it's if it's a it's a for reports and and the testimony he goes back and forth and clearly he was under threat of prosecution and and testified with something that may have appeared in that surveillance footage again may have appeared that he put something in his waistband and then all of the other witnesses kind of come on board after the fact review the surveillance footage and after the sea of surveillance footage is  oh yeah i do remember seen something placed and in the waistband so your honor this this this is an arbitrary ruling by by the judge in this case i agree that this is an issue that we