That's what attorney Christopher Warren argued in a Common Pleas filing yesterday, on behalf of his client Will "Pooh" Hook, 40, who was arrested under his alias Keith Epps, and was charged in the slayings of Rian Thal, 34, and Timothy Gilmore, 41.

Hook was sitting in a white van outside the Piazza at Schmidts, a retail/apartment complex, while the slayings occurred outside Thal's seventh-floor apartment in the complex, Warren said.

The District Attorney's Office is seeking the death penalty against Hook, and the alleged gunmen Donnell Murchison, Antonio Wright, and Edward Daniels.

According to testimony, Murchison, 33, Wright, 28, and Daniels, 42, struggled with Thal and Gilmore, 41, before both were fatally shot. The three gunmen appear on security videotape before and after the slayings.

Warren also wants Common Pleas Judge Benjamin Lerner to drop charges of robbery and possession of an instrument of crime.

Warren contended that Hook had no weapon and that at the most, the charge should be burglary, because he allegedly tried to break into an empty apartment.

Warren is also seeking the following:

* Hook's case to be severed from six-co-defendants.

* The preliminary hearing transcript quashed because of improper procedure.

* Three aggravating circumstances be barred from death-penalty consideration.

* Other active charges listed in court records be dismissed, which the District Attorney's office had withdrawn before the preliminary hearing.