i represent are the man who was convicted of first degree murder case county relates to issues in our brains the first issue has two components first whether or not the trial judge erred as a matter of law and failing to instruct the jury on self defense when he agreed to instruct the jury on second degree murder on reasonable belief in self defense the second component of that issue is whether or not the jury instructions which were given inadequately it biased the jury regarding second degree murder and also minimized the state's burden of proof or second issue deals with whether the procedure under people vs crime call was protected the defendant your honor because the state already agrees that there was a mistake made an error in deleting one of the essential elements that this jury had to find beyond reasonable doubt for first degree murder before it to the second degree murder and the prosecutor's response was there is no definition upon reasonable that's a question reasonable this is a question for the jury well that's the big point running through both of the components  cool they quote the language unlock it that says a self defense instruction and of volunteering manslaughter instruction should be given with any evidence is presented showing independence subjective belief that the determination of whether the defendant subject to believe is reasonable for the jury to make now i think it's a misreading geoffrey's to use to i think the supreme court did not need to put it when it when it said objective was reasonable to i think they were referring to there or not the defendant can be found not guilty of self defense based on self defense now a second reason that i believe that this interpretation that  meaning is of the second degree murder verdict the court says after the defendant has presented the best evidence for his defense the trier of fact has concluded that the evidence only supports a finding of second degree in essence concluded that the evidence that the defendant has offered was not sufficient to support his claim of self defense jerry's does not if it differs with all respect does not stand for the proposition that a trial judge makes no determination at the instruction space of one of the defendant's subjective belief was objective fully reasonable that's inconsistent with locket and it's also inconsistent with the the other cases that i've cited in my brief now the third reason why i think that the this six factor does not mean white if at defendant is that he had the subjective belief it's up to the jury to determine whether or not that subjective belief is subjective or not objectively reasonable now i'd also like to address and contend that this court may firm it the state proves the jury's verdict would have been the same absent the air but i believe that and in the royal it involves a failure to instruct the jury on a sentence and error when viewing the record as a whole it appears that the jury was not apprised of the state's burden of proof now that's very different here the jury was not apprised of the state's burden of and their the court said that the court abuses its discretion only if the jury instructions are not clear enough to avoid misleading the jury will hear i think they didn't mislead the jury jury's will again that the burden on him at trial was only to present slight evidence some evidence to support and then the jury is able to deliberate well i instruction regardless use your who came with the idea that the trial judge to decide whether any evidence was presented yes but once the court determines there is light evidence there is some evidence then all of us must go to the jury that's where you draw the line right and that giving any indication that as to what the issues were or why they had no merit now this was a constitutional right to captain assistance of counsel on appeal if i filed the managers that said i looked at th is not a lawyer his his lawyer told him these issues have no merit that's why he had a lawyer appointed to assist him it's not in this court that this court should not fault the defendant for not understanding not which is under control that the trial judge just supposed to make a preliminary inquiry and say what are the basis of your allegations and if he doesn't find out the allegations sufficient according to what that the how the defendant voices them then he doesn't need to point counsel to a system now but there would be a record here there was no record because the trial judge mediately appointed counsel then counsel comes on and there's no record seven days before trial and they were called that his attorney didn't speak to or call a couple of the other men that were present that night and there were a couple other allegations that it was it was it's not and lee articulated for this based on this record to know whether or not those issues were meritorious or not because it's not fleshed out but that causes job but how do you know it wasn't flushed out and supposed to be just simply wasn't put on the record correct well and it's it's applies to post conviction counsel you know at the trial for a post conviction attorney which is the only who is only required to give statutory right a statutory reasonable level of assistance ok it's much lower than the constitutional right to effective assistance and at at the trial level eight post conviction turned tourney's has to comply with an anders type procedure before you can move to withdraw he has to tell the court these are the and if the answers seizure applies to the point of counsel on a constitutional right to effective assistance on appeal then it is a minimal burden to protect the defendant's right to the effective assistance of counsel to impose that on a trial level crank or attorney because otherwise there is room way to know whether the trial judge has made the right decision in allowing counsel to withdraw and disposing of the and reappointed trial counsel but before that happened the defendant who is drew is motion right there for council is present without a task so council is allowed to withdraw direct might would your argument you're asking for in a new and additional layer on a critical perceive i don't believe that i'm asking for an additional layer i'm saying that either the trial judge or the trial attorney have that  to be there has to be some basis in the record for a view as to the decision about these issues and their merits and before you can do you base that on  constitutional right to effective assistance of counsel and before counsel can move to withdraw its constitutionally point counsel you know there has to be he can't trust in my opinion given or council to say and this is why i'm not proceeding this is what i've investigated and i find that there is no basis to proceed so that correct well no matter how long question apolog it and more perhaps more onerous burden on the council to make a record because the trial judge didn't make a record but i don't think that compared to you know that that under the career if an attorney can't move to withdraw un p c in the trial court unless he  in anders type motion explain the basis for his motion to withdraw because here then then it should apply when it's a constitutional right to counsel because otherwise here the very council that was alleged to be ineffective steps back in and there's no basis in the record to determine if counsel was ineffective or not and i think that defeats the whole purpose of crank call if you have the kind of on minimal minimal action here but by the trial judge admittedly but you know he appointed counsel which on the surface appears that he's granting you know he's going beyond this you know by by skipping over the first stage going to the second he's protecting the defendant's rights but then to allow counsel to say i've looked at it is in here  you know without which isn't isn't that what counsel is appointed to do is to investigate whether or not there are claims justifiable claims made by japan but he should at least have to as to the issues that you see there he should have to  is the defendant is entitled to get that second degree murder instruction in the first place i mean the jury was only misled if there was someplace else for them to go and here in this particular case if you look at the defendant's testimony given all of you know the possibly dangerous person here there was no reason to believe the victim was anything other than what he was a guy understood that wouldn't leave the property that the defendant and his buddies live and so i don't think that there's a credible i mean in this situation  to talking about he you know he talks about his infirmary seaways out all the oh you know problems that he has but he never i mean he never gives in testimony about his mental state other than the victim said something to instruction being given and not the rule of the trial court to wait on the evidence and conclude whether one persuasion or the other outweighs absolutely but there's a but there's a difference between a defendant you know there's a difference between somebody saying you know i have all these things wrong with me and this was at the forefront of my mind at the moment in which i did whatever her you know here it wasn't the defendant testify all mine for a reason were the forefront of my martin at the moment when the victim picked me off you decent discretion for not instructing the jury a self defense based on the fairness testimony i mean it's kind of like a crossbow situation post nine hundred ninety three what i'm saying is this post nineteen nearly through the changes to the statute the issue of whether or not the defendant had a subjective belief and an object of belief based on the circumstances as any separate so the defendant in this testimony has to establish whether this testimony whether it's physical evidence whether it's through the state's witnesses it could be any of those means but he has to establish a subjective belief in the use of force and an object of belief in the use of force and the reason i'm sorry the reasonable belief of the use of force i'm saying is that that simply isn't present in this case and to follow up on that i think i think it's a little bit difficult to say that just because of the different just because you're the trial for give the defendant a second degree murder instruction and instruction i submit that he was not entitled to that he should get all these other instructions that fall from or th she necessarily was entitled to a second degree murder instruction you know that had you know every possible aspect of self defense articulated that to simply and correct if the meaningful question here is whether or came to him i ran into him doesn't mean you know he picked me up in the air and then i just you know hop in the back with a knife it means we were measurable distance away and i took off and i ran into him and apparently during that process the knife which he had in his pocket magically opened up and the one thing that i phone telling about all this is that the defendant never tell us where the other two stab wounds particularly the superficial one of the shoulder and the thing that one thing to the victim's heart the one that enters the victim's body with such force that it breaks the victim way that the defendant could have gotten a self defense instruction regardless of whether or not the trial court judge gave the jury a second degree instruction i think that's a separate input if the court meant to keep them combined like you did in that the court would go so and it was from a very exclusive distinction that doesn't apply here now as far as around whether or not there was we're questioning whether as a matter of law the issue of whether the defendant acted in self defense was removed from the jury the burden on the defendant was just like evidence even it that the evidence supporting instruction is inconsistent with the defendant's testimony he's entitled to the instruction here the trial judge did state that person of the defense make up a small elderly maybe it's god well this was admissible evidence whether it's credible or not to me it's up to the jury