we are ready to hear arguments in our next case united states versus tony morning your honor is josh leave for the appellant bryant in this case mr tony presents two claims for a new trial the st that the trial judge erroneous lee told the jury that he wouldn't impose the death penalty if mr tony was convicted is relatively straightforward so unless the court tells me otherwise i'll start with the nd well i would just ask the question what could the court have done i mean it's rather a difficult situation it wasn't anything that the court brought on on its own behalf you had a juror just flat out ask it during voir dire right it's the same thing that the judge would do in the other case which is the judge tells the juror punishment isn't your concern don't worry about punishment that's my job and that's when then we can all think about what will happen in the jury room but  that well the jury's not going to know what's going to happen to the defendant if he's found not guilty by reason of insanity they're going to worry about that they're going to speculate about that and the supreme court said no it is a categorical rule you tell the jury not to consider that the death penalty and a lot of jurors will not even be willing to shit and if we jury asked you if it is a death penalty an issue here and you want to have your a well pro introduces confusion into the proceedings and also tips the jury to how can and how can it encourage them to look at the punishment if you so this is not a punishment that you should be concerned about because the jury is in the jury room deliberating for two days in this case what do we think the likelihood that when they're in a log jam somebody says well it's not like that he's going to get the death that i mean it's almost certain that that happens and that's the pr it an absolute rule as you described it's an absolute rule with just never ever ever ever tell the jury that anything about a sounds so exactly right with one exception that's plainly not happened and the exception is if one of the parties injects punishment into the case by giving the jury false information about what the punishment is once a punishment has already been injected into the case the judge can correct a misimpression  that the jury's been given but otherwise yes the jury is always instructed not to consider penalty and never given information about the function so this court has said that several times and the most on point case i think is this court's decision in greer where the court said if you give the jury information about punishment that you like in this case tends to favor the prosecution improper except that the court rested on the proposition that you don't provide the jury punishment information and again it's even worse if it comes from the from the judge because a jury might discount it like what does a marshal know about sins but the judge is saying if you c t i'm not going to impose the death penalty it's the it's the functional equivalent of saying that she would exercise leniency and you know you can never do that there's a huge here's the other aspect of prejudice and that is that the jury may have believed that a st degree murder conviction wouldn't necessarily carry a life without parole sentence could carry a term of years and it's the rare case when a judge has no sentencing discretion whatsoever and ordinary people understand so so the jury may well believe even if we convict a st degree murder the judge would have to scrushy to give a lower sentence and by giving the jury punishment information what shannon says court was saying we're not going to overturn a conviction based on the defendants argue that there should have been something told to the juror jury about the view of the vailable punishments but here you're asking us to do the opposite you're asking us to extend shannon in parish to encompass a situation where the district judge did the converse of that how can why or why should we extend the court's supervisory power to apply in this very different scenario particularly against the backdrop of pirro where we said it's not a violation of someone's fundamental right to due process to do exactly what the judge i'll tell you i'm going to quote directly from chen quote juries are not to be informed of the consequences of their verdict then this court also said in a case i cite in my three a disproportionate has no discretion to inform jurors about the consequences of their hurt so shannon says not only is it not required for the judge to get this information it is not permitted now maybe it's a date to for the supreme court to say it's not permitted but this court is bound by the supreme court almost a strong it doesn't matter the these cases that you cited are not death penalty cases no it doesn't matter because there is the rule is categorical and there no limiting principle for the government's argument because you know judge kelly said what if somebody is really concerned about the death penalty a lot of people are really concerned about mandatory minimum sentences and don't think people should be given a mandatory minimum  tell you but the juror is effectively saying should i be worried about punishment is punishment my problem and the judge's post say punishment is not your problem and if if the if the judge  permitted to do in this case you're going to have the next case when somebody says i'm really worried about mandatory minimum sentences and the government says let's tell them this is an advantage or a minimum sentence case or somebody doesn't think life without parole should be imposed on juvenile and the government says let's tell him this that max is a life without parole you can have and what shannon said is if somebody is asking for an exception to this rule and there's no logical limiting principle they don't get an exception and that's exactly what we have here now i want to talk about that decision unfair that you brought up we're not arguing that this is a requirement of the process what we're saying is that the supreme court has announced a supervisory authority rule in change and this court has recognized that too that you can never do this they also recognizes janet well you know of congress told us that we're allowed this or that we have to do it then that would be an exception and that's another thing would say to you judge kelly is we have this categorical supervisory authority rule if the jury should be given information about the death penalty that's something for congress to decide if congress wants not permit me to shit on that case you would want them to sit on their case be on the show i would not want them and they'd be probably excused if they could not put their aside and decide the case on the facts the supreme court has given as a very clear principle to deal with that from shannon and they said this rule applies in a case where the jury is not going to have a sentencing function where the jury is going to have a sentencing function of course you can talk to him about that because punishment is there concern in a death penalty case punishment is there concern if it's not a death penalty case it's not their concern and they should be instructed not to consider the punch the other thing i would say is that the government raised the issue that well later on in the case they got an instruction not to consider the punishment but that doesn't distinguish this court's decision in grier that i discussed the court's decision to agree or they overheard some punishment information from the u s marshal the district judge instructed them that punishment was not their concern the court found that providing that information was erroneous and prejudicial nonetheless and the reason is because since the jury makes the messages on the one hand as shannon says when you give the jury punishment information you're inviting them to consider punishment and then you tell them not to consider it since mixed message and that confusion in and of itself  prejudicial so it's a no win situation no we tell them and if you or if you don't tell it no it's a very thin see situation and a very easy situation is a juror asked about punishment you tell them punishment is not your concern that's not something you need to be thinking about it's a not a no win situation it's a very easy rule to apply and the judge violated that rule in this case and with the course permission i will reserve the remainder of my time for  overturn those verdicts based on two supposed errors despite insurmountable evidence of his guilt at trial mr tony virtually conceded all of the elements of his guilt he took the stand on his own behalf and admitted that he had motive to kill the victim then the middle of the night he drove to the victim's house he took the victim from the house to the middle of a remote area in the desert in the middle of the night smashed the victim in the face with a rock and then stabbed him several times including in the back  he did but he didn't see that on the stand so his of singular claim on the stand was that he was acting in self defense and this was almost laughable considering the evidence of his guilt and against self defense claim most importantly to begin with is the nine  there was a recorded ninety one call that the victim made that lasted about ten minutes in between the time when he was initially hit in the head with a hammer until his death in that call he identified brian tony as his assailant he said mr tony hit him in the head with a hammer and he was begging for help from law enforcement to come and assist him the heroin call ins with him saying here he comes here he comes here he comes the call goes dead the victim's found dead the next day now mr tony provided four different versions of the events well we'll get to put get at the point on the what the what the jura ashton of is a right or wrong i'm sorry regarding what your question around yes regarding the border question during the year as a response to a question from a potential juror i know that but is that good bad or indifferent what do your was in absolute correct thing to do in this in this case yes it was the the correct thing to do and here's why or by the potential juror asking the question whether or not death penalty was on the table they were indicating that they were going to be considering the consequences of his verdict that was the indication right there the entire veneer heard that the entire veneer was of the same time going to be considering the death penalty in the situation because it was not a death penalty case if we if  and the parties would have been able to follow up specifically on the death penalty and parties positions on the death penalty the jurors positions on the death penalty and with such an inflammatory issue like the death penalty especially in a state like new mexico where the state system has abolished the death penalty you would have an entire veneer that would be unable to do their jobs but how do you reconcile that with the scope of the language that mr lee was talking about and quoting from shannon well your honor in shannon the supreme court justice thomas writing for the court had an opportunity to to absolute draw a line in the sand and say the court should never instruct or inform the jury of penalties and if it did if it needed it it is well established that when a jury has no sentencing function it would be a potential will later on the court does say that although we concluded that it didn't require no struction in this matter and this i'm looking at page five hundred and eighty seven dollars your honor he did say that it may be necessary to counter a misstatement the appropriate response of course will vary as is necessary to remedy the specific misstatement so if somebody opens the door but that didn't happen here it was opened by a misstatement of the jury which with a misconception that it will help to question b of misstatement well i that was one of the main things is by asking that question they were indicating that they believed death penalty was potentially on the table and the only way to rectify that is by simply into simply saying death penalty is not on the table and what the judge did there is she answered it accurately death penalty was on the table she didn't instruct the jury of misstatement that the death penalty is all that and that is going to trigger the it's limited d exception yes it by asking that question they're implying that they believe the death penalty is on the table and that they are considering it as a possible verdict and because of that the court would have to remedy that the only other alternative as asked by as requested by defense counsel would have been to say that there were no that not to consider the consequences but because under witherspoon with standard in death penalty cases the parties would be able to inquire into the positions in this case we would be disruptive the proceedings because we would be able to ask whether or not jurors could be fair and impartial with the court was doing wasn't instructing the jury on a possible penalty it was alleviating that specific juror and any other jurors concerns about whether or not they could serve fairly and impartially on the street panel they were inherently thinking if death penalty is on the on the table on this i don't know if i can be fair and impartial we could inquire into that because it wasn't a death penalty case and so the court alleviated that juror's concern and the rest of the panels by saying that's not something that will render you being a biased you're in this situation you can still be fair and impartial and you don't need to concern yourself with that specific issue doesn't that pronouncement by the court lesson in essence the burden of the government it's an easier case for you to prove a case and to establish a verdict beyond a reasonable doubt if you're not looking at the death penalty no i don't think it would your honor it's still a st albeit i don't think jurors really agonize over the decision of a death penalty verdict i certainly agree that they would and i think that would be the issue is that under the witherspoon which standard  if it was a death penalty case we would have to have a death penalty eligible jury before being able to even try the case in this case or as a st remerge or i don't think any of the jurors are taking their responsibilities like this was a st degree murder and in fact i think the fact that they deliberated for several  shows that they were taking their responsibilities very seriously and i also think there's a variable assumption the jurors follow the instructions the court gives them and in this case at the conclusion of the testimony and evidence the court instructed them on the specific burden and the court instructed them with the mean evidence no it was not improper at the time of motions in limine and united states moved to keep the evidence of the methamphetamine out evidence that was available was that at the time of the autopsy the victim's true blood point under self defense that if one uses methamphetamine you become aggressive paranoid violent yes that's that was what defense's position was but under forty four dollars b which i believe at this point appeals even because conceding we're arguing only for the not intrinsic evidence under for a for be a party is required to precisely articulate why that that evidence is relevant how they're going to admit well it wasn't that then it was not the relevant part the relevant part was partially conducted how they're willing to admit it was the very difficult situation and the reason i say the relevant part was partially accomplished is that we're not claiming here that the influence of methamphetamine or illegal narcotics is always irrelevant certainly there are cases where the united states produces evidence of that and can be relevant we're stablish in what our argument is here today is that in this specific instance the mr tony was unable to explain how the fact that the victim's blood composition may or may not have had a is saying we want to get into this methamphetamine evidence is it fair then for the government or the court to conclude well you haven't said anything about an expert whoa wait a minute we're not that far away well doesn't the doesn't the defense have the opportunity to support self defense yes certainly the vents has that opportunity your honor and certainly have they produced evidence which could have established all those things that the court just addressed it could have been err but in this situation when given the opportunity the proponent of the forum for be evidence did not indicate exactly how they're going to establish that the victims the methamphetamine in the victim's blood would have been to a level that it would have put him under the influence of  you were at a motion and eliminated before trial right correct and wouldn't a better approach have been it sounds to me defense counsel that you've made a valid point that this could be helpful in your self defense argument and we'll let this proceed in trial and see how it develops and then if it's if it's just someone saying without expertise this is what happens when you're taking meth then you've got a problem as far as the defense is concerned because you don't have adequate evidence to support your claim no because the in the possibility of proving that the victim had some degree of methamphetamine in his system without being to establish the relevance of i think there's a big difference there your honor and that's because drinking whiskey is widely understood by lay people the average jury would understand the effects that alcohol would have in somebody to the inverse of that as noted in our response brief one out of two hundred and fifty people has used have used meth because without providing some form of evidence in the way that they attempted according to their response brief and to the motion eliminate to establish this was through judicial notice they didn't have an expert they didn't have an eye witness to testify about this they said that they going to ask the court to take due judicial community a large a potential juror would know that methamphetamine is distinct and in this situation even if the common person in the community would understand that methamphetamine was something that causes people to be violent we didn't even have evidence that the was it was it wasn't proffered that he would have testified that i certainly it could have been possible and i don't want to put my i don't want to establish that necessarily right here right but what i'm pointing out is that in their opening brief appellant points out that in one of the articles that he cited that methamphetamine has an outside impact influence on somebody of twelve hours he didn't have anybody that could even establish that the the composite the composite of his blood at the time of the autopsy the victims that that was within the twelve hour window when meth would have affected him certainly things can remain in people's bloodstreams long after the effects have worn off he didn't have any evidence that the victim was under the influence at the time and he didn't have any any proffered evidence of what under the influence what i'm and i'm not saying he has i thought they had a blood test and definite knowledge of what was in the system that there was a blood test that indicated he did have some level of methamphetamine but the import but then as i said before i think that is is this the time to shut down this evidence or do you say well let's see how this rolls out defense counsel if you've got something behind this assertion we'll see w you put on a trial and if they try to come in with i don't know learned tax articles then i suppose you bring an expert to say this is all hooey but this isn't that when you do it is at trial rather than preliminarily because of the cause of concern of what that evidence could establish if there was no relevancy of it in the st place i think the court gave mr tony ample opportunity to establish the relevance and therefore for b which he failed to do she he had the burden of establishing the relevance of it and he didn't do that all he said was he wanted to be able to establish that he was under the influence of methamphetamine and why he said why because it causes a person to be aggressive and violent and without being able to the same concerns and that's just the interest of fairness a trial this would have been a situation where the victim was already being dirty up for lack of a better term by defense during the trial we've been dirtied up further this would have been and almost asking the jury to nullify based upon the methamphetamine usage vs any valid relevant purpose thank you thank you i'd like to make two points about issue one and two points about issue two if i have time st on the punishment information it is not true that the judge had to provide this information to ensure that the jury would be fair and impartial what the judge can do is what it always does when the juror expresses a concern can you follow my instructions not to consider punishment or are you going to be so worried about punishment that you won't be able to decide this case on the facts that entirely cures the government's concern about the juror not being able to set aside their concerns without violating sheehan so that's how you do that the nd is there's a good no limiting principle for this idea that if the juror asks a question about the death penalty that you can provide the information what if the next question is well if we convict him of nd degree murder is he ever going to get out does the judge have to say like well he might get out or if we convict him of st degree murder  wait for that case well i think you have to set the rule here right and this is airily what she didn't say is all we have is really one tiny little issue what shannon says is when you're deciding whether it's permissible to do th you consider whether the party who's wanting to provide the information has a limited principle and there is so now turning to the nd issue about the methamphetamine the district court didn't exclude this evidence because it said mr tony failed to establish that it was relevant what the district court said is you have not proffered a proper purpose you have not given me a non character purpose that's just wrong and the government virtually concedes that it's wrong so then we go to hand we affirm the district court on alternate grounds that it didn't reach and what this court has said is the record has to be sufficient for the court to in determined that it would be right to exclude on these other grounds the records not sufficient for the reasons that judge briscoe was asking about that well do we have to know whether he was hired methamphetamine that night well if the judge hadn't preemptively excluded this information we might have elicited testimony from joey man or in the of the other people who were around him that night who could have corroborated that he appeared to be intoxicated that had taken it a couple hours before when when and how exactly was the proper purpose proffered it was done twice st in response to the government's motion eliminate where the defense said we're going to prove that he was high on meth at the time of the incident that's important given the effects of meth on human behavior and given the effects of mental human behavior it's going to show that he was the st aggressor would you admit that there was no expert coming he did say there was no expert coming that doesn't have anything to do will how does it how do you how does your drawer know what the with the effective method i don't know what it is well so i think it is within the common understanding that  being on meth can cause you to behave aggressively or or irrational and the case richar t that i cited in my brief says quote jurors are not to be presumed ignorant of what everybody else knows and may act upon matters within their general knowledge without testimony matters and that's what you have so you're saying everybody knows the effects of meth well actually what i'm saying is that it would not be an abuse of discretion for a district court to determine that it sufficiently with the end common knowledge to be relevant to judge don't you have to prove it be precise opposite that because the judge said that if it is not provided work with a permissible purpose for the introduction of specific evidence of prior acts so do you not have to show that it was an abuse of discretion for the judge to make that very fine so there's a distinction here did we we definitely did that so the district court's decision is wrong now the government is saying we can afford it on this alternate ground didn't prove you didn't prove that meth can cause violent behavior and so then you ask that's a discretionary judgment by the district court if we're forming an alternate grounds you ask would it be an abuse of discretion not to rule in the government's favor on that alternative greg and those are the cases outside of my brief and you can't say would be an abuse of discretion for a district court to think that this was a matter of common knowledge and so i'd ask that you reverse on either above thank you both for your arguments this morning the case is submitted