good morning in may it please the court my name is jeffrey ellis i'm here on behalf of the petitioner robert allen brown this is a case involving a claim of due process and fair notice violation in a situation where mr brown was convicted based on an uncharged theory of liability under the kidnapping charge i would i would ask this court specifically to look at got versus lewis a decision from this court back in two thousand and seven because it provides really a blueprint for this case that case like this case is an epic case that case like this case is a case where the defendant was charged with a particular theory but the jury was instructed on another theory that he was convicted of and the court found an unreasonable application of clearly existing supreme court law and reversed but let me start with the charging document because i think it's important given our claim that the charging document specifically the felony murder didn't fairly inform mr brown of the kidnapping theory that the jury was instructed on there are three charges in the charging document the kidnapping charge specifically charges only the intent to inflict bodily injury the jury when it's instructed is instructed to consider the infliction of bodily injury and also the infliction of emotional distress on the kidnapping charge the state court found a constitutional violation and reversed because the jury was allowed to convict mr brown of an uncharged alternative if you go then to the felony murder charge the felony murder charge simply says that he committed the felony of first degree kidnapping and that the victim died doesn't specify the statute doesn't have any additional words associated with it it simply says first degree kidnapping if you go down to count three the conspiracy count the state there are apparently attempts to invoke the breath of the statute where it says that he conspired to commit first degree kidnapping and then sets out a statutory citation incidentally it's an incorrect statutory citation it's a citation for the crime of harassment and not the crime of kidnapping but nevertheless it attempts to broaden the scope of of that claim by setting out a statutory provision incidentally in washington kidnapping could could be committed five different ways not just the two that the jury was instructed in this case if you go then to the instructions that were given to mr brown's jury those instructions essentially repeat the formulation that the charging document did by which i mean the instructions don't specifically set out a definition of kidnapping in felony murder charge and then set it out again in the kidnapping charge the instructions in the felony murder charge simply say you have to find that he committed a kidnapping you then go to the separate kidnapping  and that's where the jury is instructed on these theories so the method of of pleading these charges and the elements of these charges are all based on state law correct the it is those to say the the elements felony murder is a state law determination correct so here to zion or stand felony murder basically the felony underlying felony is the substitution for the intent that we generally haven't first degree murder cases that's correct and i'm not arguing that the felony murder charge read in isolation  to charge a crime what i'm arguing is that the felony murder charge read as you must as a whole reading the information as a whole basically references the kidnapping charge well when you have a jury trial and at the end you instruct the jury on each charge you don't instruct the jury hey take a look at the total shirker complain the charging document you instruct them that on each count and in fact you tell them you know you're to be guided by you're look at each count individually right but my argument is that this jury was allowed to convict to found him guilty of kidnapping correct but that's not that's not the only theory of liability that the jury received the jury received a separate theory of liability which was the intent to inflict emotional distress and as the evidence was sufficient to convict him on the proper gun and causing one injury he suffered no pertinence no no he is under prejudice i respectfully disagree because the jury was not argument and it's an argument that finds support in god and it finds support before that in cold versus arkansas the u s supreme court case says that there's an unacceptable risk that mr brown was convicted based on a theory of liability that he never had fair notice of that wasn't in the charging document quite correct because as i just said under wash under oregon law washington law washington lombard under washington under washington law they have notice and i'm telling you that they're the criminal law repeatedly says the documents must be read as a whole that we don't read documents in a hypertechnical way in this particular case the kidnapping charge which is then subsumed in the felony murder charge specifies a particular theory the state's argument or the state where its argument is from the charging documents silence we can assume a different intent to charge the felony in the correct but it is if it's said if it had said kidnapping is alleged in count two well i would say you had a really good argument ok and i doesn't say that and i'm tell i agree with you i'm not quite there but i'm only half of a step away i would suggest because again the kidnapping from a from a double jeopardy standpoint it is a lesser included of the felony murder there's no allegation that the fit the felony committed in the felony murder is different or apart than the stand alone kidnapping there the same crime and again what the state court does is it says let's just look at the felony murder charge in isolation and let's assume an intent to do something different by virtue of silence by virtue of no language and i'm telling you that what case law repeatedly says with regard to the review of informations or indictments is that they must be read as a whole and they must be read in a commonsense manner well first of all there was never any attack on count one as in the information that it did not state a crime more than it was two very grainy thing else and if the accuser had stopped right there and count one there's cases  if if count two hadn't been charged no i agree not what you're asking us to hold you know as a matter of us constitutional law by police throwing in a separate count that does not that that somehow twenty six then count one i'm telling you that when you read count two in conjecture in connection with count one that count two defines the kidnapping as charged in count one  but and you're saying that as a matter of us constitutional law yeah and again i would say to god and i would say to cole and and from a practical standpoint when the jury returned a verdict of guilty appears as it in the kidnapping charge now the instructions however didn't put any of the limitations that you're talking about in the consideration of when the when the jury heard instructions on kidnapping if it had if we didn't have a separate count of kidnapping there would have been nothing wrong with as it relates to count one it would have been a perfectly  legitimate instruction as it relates to count one on which the defendant was found guilty well the to convict instruction for the felony murder simply referenced you have to find that he committed a kidnapping yeah right there needs to be a separate definition for the jury of kidnapping that was given in this case and it was given in this case on the kidnapping charge so if you are a juror and you're trying to figure out what do i need to find in order to convict of felony murder you look at kidnapping but then you go to the kidnapping instruction which is where you find the uncharged alternative if in addition to the charged alternative but it was you you will agree with me that it was a legitimate description of what the jury had to find or a legitimate instruction on what the jury had to fine as far as count one is concerned they were at liberty  either one well i disagree that's that's the rub in the case i disagree with the instructions permitted him to do it did not the instructions did permit but my argument is that they permitted him to the jury to convict him on an charge  precedent in this case he has not done that the state court reasonably determined first that the charging dark document included all the elements of felony murder under state law under state law and that that whether or not it included the l once of state laws an issue of state law that and it that court's decision is binding on this court under project versus the state court then further consider the argument that although the charge on felony murder was proper the prosecutor erred and restricted that charge in the kidnapping and the state court said no because you cannot show the prejudice from that and what the state court reasonably determined was even if there could have been some misleading by the combination of the two counts which our position is they should be separately but even if there could be some misleading to a defendant there was no misleading in this particular case because the defense was not whether the kid nitpicking was committed to inflict bodily injury or mental distress the defense was mr brown was not an accomplice to a crime that was the defense so even if there could have been some misleading from the charge there was no prejudice that would be required to obtain relief the state court's decision was not an unreasonable application a supreme court precedent although the petitioner relies on this court's precedent the supreme court most recently in frost versus glee be said that this court cannot use its own president to fill in the gaps that are missing from the existing supreme court case law there is simply no case no holding from the u s supreme court that says that this is a constitutional error in this case if this case was not under ed but this court could arguably find that there was a constitutional error and the exercise of it's been over review but this case does fall under and pop and a result there is no clearly established federal law there is no showing that the state courts adjudication within the reasonable and unless sure the way that way this is alleged i think did the state court refer to this as in art fall or something like that isn't i've forgotten who use that term  describe this information the state supreme court did say that on excerpts record twenty one to twenty ten you have you have encountered one premeditated intent to cause death and then you also allege or this state also alleges that something was done either or and that you got away with all of that i guess huh yes your honor what they what they alleged in in the alternative in count one is that even if the jury rejects the allegation of premeditation the the alternative for finding that mental intent is that it was committed in the course of a phony now was the jury instructed on the premeditated allegations of premeditated murder as opposed to felony murder under this and this now yes your honor they were instructed on both and the jury convicted him of the felony murder ok ok in under that charge all that is required is that there being an allegation that he was that he committed that the murder was committed either in furtheran course of her plight from the crime of kidnapping yes and under state law there is no requirement that the jury find and that the prosecutor allege the elements of kidnapping for that charge you did your jury found that he was that he was kidnapped and but taking a step back the prosecutor didn't have to charge kidnapping as a separate crime they could have decided not to charge that if the jury acquitted them of kidnapping they could still convict him of felony  murder because under washington law to be convicted of felony murder the actual crime of kidnapping is not an element it is not something the prosecutor has to prove the prosecutor only has to prove that a murder was committed either wall attempting or committing the crime of kidnapping and there is no supreme court case law that says that you have to prove the underlying predicate felony in order to support a felony murder conviction  illogical it as it plays out they usually do prove the underlying felony they do your honor and there's no allegation that there was a lack of proof the allegation and there's no allegation that the  verdict was unlawful under washington law the allegation is he didn't know that mr brown didn't know that he could be convicted of either prong or either means of committing that crime so it's not an allegation that no kidnapping occurred it's an allegation that that kidnapping charge had an instructional air because he didn't have notice that that instruction would be given and that lack of knowledge hampered his defense on the kidnapping ch really wasn't there was intent to inflict bodily injury or intent to reflect mental distress the defense was i was not an accomplice this is not a case where there's multiple counts occurring over a long range of time and there's confusion about when the accounts actually occurred there was one kidnapping it occurred in a very short period of time there's abundant evidence that mr brown participated in that kidnapping and as a result as an no no your honor i don't believe it would have because his defense was i was i was there but i didn't actively participate i was not aiding and abetting in the commission of the crime which is when an accomplice does the mere presence of an individual at the crime scene is not enough to prove accomplice liability and so his defense was i was present but i wasn't actively aiding in the commission and the defense attorney's arguments was he was not mr brown was not part of the group he was not part of the group that actually engaged in the kidnapping not part of the group that actually committed the murder and therefore he should not be liable because the state court's decision was not an unreasonable application supreme court president  court has for the questions i would ask in the corner from the district court the thank you i'll give you a minute for rebuttal thank you i don't think the defense was as broad as the state characterizes it the defense was that mr brown did not know that the victim would be killed which was the theory that was charged but there was also this allegation that the victim was afraid that he was  distress before the time and so it is possible that the jury convicted based on that theory which is an un charge theory this is not a case of insufficient notice our complaint is that mr brown had actual notice that the state was only proceeding under the theory found in the indictment and are in in the information and finally i'm not relying on this court's decision in got as the clearly established supreme court law i'm reliant on as the blueprint for the application of the law to this case that case like this case ultimately relies on coal versus arkansas and other fair notice cases as clearly established law oh thank you