proceedings on the guilt phase of the trial this court has already found that the prosecutors in this conduct in the penalty phase in part justified vacating that what the the way in which the prosecutor characterized his will with the jury that is off forced off his basically the first part of his is a closing argument prosecutor's argument and i think what we have to do is to look at under undergone not only whether the misconduct influenced the jury's ability to judge the  that he always intended to enforce the two to reinforce the notion that the kidnapping because he brought them up there for sexual purposes rather than the argument that that wasn't really  the intent to commit the sexual act from the beginning and not only after what was there and that's the part about this case where the evidence is not substantial evidence that correct or do we mean why do we assume that if to me it seems to me you're coming close to conceding that on his confession there was premeditated get my hands around the structure of your argument let me let me go just let me try this way i think you're asking us to assume that the jury convicted on the theory of felony murder and did not convict on a theory of first degree murder and if the only thing that the jury was unanimous on was felony murder you're saying the evidence of that was somewhat weak which then means that it wasn't necessarily homicide but that it wasn't hama's error because there really was misconduct that took the jury in favor of conviction is my understanding the structure of your argument i think that is that i despise myself badly if you think your honor that's the only structure i am saying there are weaknesses in both the premeditation and deliberation and felony murder theories the because of the evidence deal with that but i do not concede by any means that given that the evidence of that is worldwide upon to say she premeditated and deliberate is the same evidence get to the point in your argument where felony murder is even relevant i think you have to persuade us that it was sufficiently unlikely that this is just a ordinary first degree murder conviction that we haven't reached that question in terms of harmless error why we have to go to the let's assume weaker theory or the strongest h and i assume for the purposes of you answer this question that i disagree with you that all of those claims are partly in front of us and as the evidence in this matter was absolutely overwhelming of premeditated and deliberate murder this man admitted that he clicked with these girls he was not supposed to pick up these girls he took them to a location where he knew he wasn't supposed to be how is whether whether he was kidnapping her for sexual assault for sexual purposes or kidnapping them for murder at the time of the kidnapping doesn't seem to be and branch sort of way you would you know this trial that pushed one time ago basically thirty years ago russia and you may or may not know the answer to this it appears because i just read the transcript read what the prosecutor said the lack mean that you can't consider anything but exactly what was the bump i mean that's true up to a point the question is you know whether this crossed that point because there were a but the problem is that there were some of them have to do with this community calling on the communion which was exhausted and some of them have to do with well the part that i found i was distressing on this sort of gay bashing stuff but but they're they're they're they're wrong they're they're this country for misconduct are not properly before the court true but i'm trying to think as miss conduct themselves what i'm saying is that you would still have to consider whether