never seen a grammar and a half of rosenquist and associates were from phoenix and her representing a talent went on mattia the crux of this case is in the specific intent requirement a first degree murder in this case my client wendell nash was convicted of first degree murder and the second issue was closely tied into it which involves an ineffective assistance of counsel claim where his counsel a trial that was not us did  not properly and timely present notice that there was going to be ex and expert witness on the issue of specific intent going back to the specific intent the issue is  that this was a case that involved a victim since the cynthia scroggins who was stabbed in murdered x lake and at the san carlos indian reservation and that's where the jurisdiction in this case lies is that it was  on an indian reservation in the defendants my client and a codefendant terry acton were native americans this is a case where miss there was no evidence presented and all the evidence in this case was presented by the u s attorney where it did not show that there was specific intent and these were witnesses that testified and called by the government and to there was not your honor there why didn't talk to people friends and tell them that he planned to get rid of them no he said that he didn't like her it's i think is much different really and let's look at that it's nothing more than i did is much more than just a malign those statements that is correct your honor but in this case although he made statements that that he wanted to hurt her and he didn't care about her it still doesn't rise to the level of what happened down at the lake that demonstrated that was there was a specific intent in that case and one of the things that is very important is that he and most everybody else who was at that lake was highly intoxicated and most of them were also using using methamphetamine and from the statements that were prevented by the presented by the witness says there was evidence that there wasn't specific intent for example there was a witness named sanders and he testified that it's a fight between the victim and nash happened all of a sudden it just popped out and there was a second witness pouring thompson also known as misc a many people in this case had nicknames that were used throughout the case that witness testified that she didn't remember she did drugs that day out of  asked on a level of one to ten how strong she was one being sober and ten being passing are drunk she was a level eight to nine miss thompson was also beat up by the victim that day of the incident that everybody else was known announced that everybody there including nash was highly intoxicated people didn't know what was going on there was violence that the victim inflicted on other yes well we presume that the jury listens to the instructions almost of course to go and but in this case there's a standard of whether the jury was reasonable and based on the evidence that was presented in evidence which kind of bring second issue the evidence that was not presented which demonstrates that the jury was not reasonable and that the jury did not have the proper evidence in front of them all now we don't consider ineffective assistance  direct review is that most of the time when there's an ineffective assistance of counsel claims that claim cannot be advanced with without outside facts a lot of times of person will say you have a defendant w say i gave my attorney a list of fifty witnesses that were alibi witnesses and he didn't call and that's outside the record in this case you actually have evidence on the record regarding  specific intent based on the intoxication and it was too late at that point to do we know from this record why you didn't present and notice until two weeks before  oh well i guess we don't have a witness now he's the counsel does it make any further record about we don't we don't know because we don't have a record from the counsel of the structure that's correct or two conventions and intention with each other in the sense that you have to to say no in fact that this would have made a difference yes there is definitely prejudice shown and we have a codefendant in this case who received the second degree murder charge and received a sentence of about two hundred thirty and i presume the government wants to be heard after both attempts to counsel quite simple during the course of the trial in this case the government presented statements from both mr octon and mr nash mr nash's statements implicated mr active indeed directly tied mr acton to certain facts and events that occurred during the smart classic rock very much so your honor and in this case despite the government's efforts to redact those statements in essence what happened with the government's redactions created a compound in error if you will the government even went so far as to redact statements of third party witnesses and eight other individual who were implicated in the murder o jeremiah johnson by so doing by redacting for example one of the witnesses was a man named david bobby sanders mr nash implicated mr sanders at one point in grabbing a knife and going down to the that's exactly right yes that's exactly to ask you this question on cross examination did you ask along foresman officer of whether the use of the word someone in that instance referred to your client your honor that was different i have a yes or no first confused accounts that were given by the witnesses to testify never be mr sanders missed the times through the morass of that testimony if you will where people are intoxicated some people walk the way some people turned away while this murder took place there was much confusion as to who it was where who did what and what it were and then but there was nothing to prevent you from asking them on force mosques around that precise you sho whether someone meant someone other than your client by doing that your honor the perverse effect would have been to call further attention to the reference to the mr act and as being the other someone throughout mr nash's states in other  that's and then there was mr acton of mr nash who was standing trial jointly at the same time and then for a separate trial your honor and i knew the court would ask this and it's somewhat of the million dollar question as we came down to the  obviously when you're faced with a brutal problem that happens a lot in criminal investigations a trial or just presented with basically three alternatives one is it can order separate trials and do away with the action that commonly it and move them in and out when the statements are made but the choice here was basically between severance and exaction and you didn't ask for the alternative that's correct why m the ideal solution in your view is to have the references to mr x and given by mr nash rejected in toto entirely not to mention not mentioned just totally out and then the other one with someone still be in there with you insert certain names some of the time take for example the instance where they said mr mr nash it indicated sanderson picked up the night and kept it in my view that should have come out at trial that way and let the in any of them but then you would have to name it in other words you go through a bank statement to make and are very believe in the extra records that are provided to the court specifically there was mention made of how this compound i attempted to have the court the district court the trial judge understand that yes where we were putting putting in these someone's are using that type of reaction that what was happening was that i was not only when mr nash from his statement he said he handed the knife to someone else and that he shank turned and finished her off if you put that into context with the other witnesses statements and if you look at this no these testimony in particular  one of them came back and she was referring to either acton or johnson and she was never clear on which one it was despite the government's efforts to impeach or that statement alone the jury could have inferred was mr acton doing it because the confusing intoxicated product of the other three witnesses who were quite clear they never went down to that length sure they couldn't testify as to what happened down there in the dark that statement in and of itself was one of the points and that's fine it's your time your honor it other points in the case as well and i know the government on the last congress you just made it's correct isn't it that sanders testified in an that he saw your client and gnash a night at nationals request a mediately before the victim went down to the lake and whoever was in detroit that's correct your honor but part of that w six grounds because i felt that that complete statement of course during the pretrial you're not going to which way that objection is going to go the facts of record or at this precise point line nash was on are that that's with regard to see the evidence there was significant evidence of premeditation in this case as the courts are already noted that there was evidence at trial that the defendant and everyone else present were drinking heavily in drugs the defendant requested and received a jury instruction on intoxication and the jury considers that and rejected that argument convicting the defendant of first three murder this court should up hold that reasonable jury verdict unless there's something looking at the light most favorable to the government and we ask that the courts uphold that verdict with regard to in fact the ineffective assistance of counsel of course correct in that it can normally refuse those on twenty to fifty five's or the record in this case the court can consider it in the government's position because the court needs to make the determination of whether or not the defendant suffered prejudice if the court finds on this record the defendant did not suffer prejudice they can rule on the ineffective assistance can i i don't know i don't know what his reason why as he provided notice two weeks before trial and as of the day of trial he had never provided the government with a report from an expert or i don't believe he made a proffer a specific proffer of what the expert testify about right now i understand that choice on whether to put on expert testimony or not but when we look on the question we look at the question of strategy we have to say was the strategy reasonable and i can think of a reasonable strategic choice but most of the o or at least a push well i don't know whether it's a strategic choice to miss a deadline i think in this case that expert testimony regarding intoxication was unnecessary i don't think the effect of intoxication is outside the purview of the jury that the jury can make a determination if intoxication affected the defendant's ability to premeditated murder and there was significant evidence of premeditation of discussions before they got to the lake asking people to beat down cynthia before they got to the lake and even the conduct at the lake the testimony at trial was that this was a fairly long and lengthy assault on cynthia scroggins that it took some time and i think the jury can infer premeditation to simply in the the court ten make a determination with regards to prejudice in the government's position is that the defendant is not prejudiced because the jury can make that determination the jury did make that determination that intoxication was not in this case the government introduced confessions of both defendant nash and act in that trial those confessions were redacted they were oral confessions not written confession in the court as a confession and specifically defendant na confession in the excerpts of record at pages twenty one and twenty five the italics sized portions of that of those documents indicate what was redacted for the ct benefit opposing counsel described his tactical to allow a joint trial and the supreme court's held in richardson v marsh that joint trials are appropriate that they're encouraged in cases when when an appropriate reaction can occur the government believes that this  deficient in fact the defense argues that because the names and the word someone was replaced for other individuals except for the defendant including the defendant that it somehow implicated the defendant conduct that wasn't his the government's position is that simply not so that adding the someone to other contacts made it even more unclear what just what the defendant match the talking about in his can and his confession that he wasn't particularly statement appears that now to try to blame someone else but the evidence at trial really showed that it was defendant nash that made that statement additionally there were statements that it all and had started in the back of the car and that nash had slapped cynthia around in that someone else specific lee statements that mr consul brought up about the last person down at the lake having said that she's gone or we killed her the testimony at trial was that both evidence that was brought out at trial did not clearly implicate the defendant in some of this conduct and clearly indicated other people in the conic so that someone based on found it matches a confession could not be clearly identified and believe enrique and mika's astride a case that you can't you don't preclude the confession simply because other evidence may tie the defendant to those statements no but i think you are just arguing that the other evidence remove  i wouldn't disagree at least in part because i know there was at least one statement where a witness said i don't know i don't remember who said so but so what is your argument if you look at the four corners of the document or are you saying it's not  because there's a little bit of an unusual case i think because classic bruton's problems are when you look at the document and it's fairly obvious who the other person is defense counsel space with a different problem here because what he says well there are multiple inferences you can draw from that from the document none of which were particularly good for me enough and it forced me into some tactical choices i didn't want to make your argument to an answer just mchugh's question seems to be that while other evidence clarified who it was which then seems to me to draw you fact that other evidence may implicate him in that context and again there was a lot of contradictory evidence to the defendant's act in statement which could be used against him and as i'm saying the jury was instructed to that it could use the defendant's confession only meant the defendant that was confessing may have implicated his statement may have come i'm not sure that his statement may have confirmed some of the allow a jury to eliminate every other person on that document except for the defendant you have written there or not think that it was necessary if ever asked for by the defense the judge we had a discussion about that and i believe the judge probably appropriately found that these could both tennis could be tried together based on th in this case and that's my next argument that if the court finds its proof violation the government believes that it's harmless beyond a reasonable doubt because they're with sufficient evidence or overwhelming evidence is the defendant actively participated in this murder we had his own statement that he knew something was going to have happened to cynthia based on discussions with others in the group earlier in the day that he admitted finding a knife on the ground and handing it and then his statement was to someone else  his statement was also initially told law enforcement he admitted to going taking his coming back to the car and taking his shoes off and then going back down to the lake because he didn't want to be tied to the scene that was down until late he admitted when they were driving away  interviewed by law enforcement he took long foresman out of the scene where the knife had been thrown at work and law enforcement spent several hours looking for it there he later then indicated that he had never taken on or snuck out to the scene and that was also  other witness testimony also a cropper a day that the defendant went down to the lake several times with jeremiah johnson that the defendant was looking for something on the ground and then picked it up and ran down to the lake that the defendant came up from the lake in took his shoes off and then went back down to the lake which would corroborate by the defendant's confession the defendant and jeremiah johnson returned from the lake and one of the two indicated that they had split cynthia wrote the physical evidence at trial was that cynthia had a knife sufficient this isn't a case where there's nothing other than this confession and again the jury was instructed not to use defendant national convention against an act in the classic brewton case that i see is a bank  there's two people that enter the bank and few people are identified and they each make confessions against each other in this case there were so many people at the lake that when the term someone is included in the statement it could mean a whole host of people that are at that place this case is if is a good example of when the should be when the statement should be allowed at trial because it can be redacted sufficiently not to directly implicate in but could directly or could implicate a whole host of other people think it's critical to be arrested i'm sorry there was a piece of evidence critical to the well i think this confession was critical to defendant now it was his statement about what ha the government has conceded that there would be no tactical advantage to submitting a late expert disclosure i think she said she just didn't go well all right  i think the court will be aware there be no tactical decision to do that and it precludes your expert basically which is very different than the case that judge hawkins and judg and sat on this year which was the vazquez clay case where a defendant was complaining because a witness was not called and there was actually a tactical decision behind it and so this is much different this was the wasn't that clear eat he was as a creditor but yeah and he had other things going on but i don't think it was where he said hey i'm going to take her down and that's just going to be and i'm going to tell her it wasn't that wasn't demonstrated he was angry