issue and the defendant i think the government and and the defense agree on the standard couldn't see the get go there it looks to me like the judge act consider the evidence ma finding there was evidence to support it regardless of what feelings you might have nothing you can do about it and you will find he supported by the evidence anyway i'm not sure i have a problem with that i mean the challenge she wouldn't take her lawyers advice she insisted on this ridiculous story that the five year old did it boy that's just typical a criminal defendant so a lot of them aren't that smart and it's just fun doing stupid things it's often how they got in trouble in the first place well and as a lawyer who's represented criminal defense for twenty five years i tend to agree with the court on that issue however based on the record in this case i don't think it's as clear cut as one might and together with mrs charlie's to cheer eating mental condition which was amply demonstrated by the reports that the court relied on and also the background information that was presented to the court certainly would give  and the other experts in passing indicated that there wasn't sufficient evidence to believe that mr charlie had a legal defense of insanity and i don't think that was ever seriously advanced by her attorney believe a psychologist employed by dr moran doing some background psychological testing all indicated at the time that mr charlie was competent to stand trial under the standard and and miss or the right advise the judge that they were very reluctant to come forward at such a late day but they felt they had an ethical duty and they felt they had a guilty to the court to present proceedings or taking occasion to be able to look at a witness moving or changing a position in order to do that to at least discuss matters with counsel and she's not going irrational in court or any time before the court are given any indication whatsoever that she has some current mental state that would affect your ability to know where she is what she's doing so we will  wearing what i'm thinking is yes it's a stretch but if the jury wanted to give her a break that it be fake they could hang a reasonable doubt out on i once we once had a case in my town where a lawyer maybe there were some alcohol who knows and and in this particular case your honor the the backdrop for mr charlie and reported by the government's expert and also by the defense psychiatry and psychologist indicated clearly in my view that mrs charlie had serious mental health issues and looked like she was an f a s child with impaired intellect and judgment but that still doesn't make very competent to stand for help but it certainly is the context for this court to find that she was because not only did you have fetal alcohol just had a smoothie a slight personality issue or maybe she had some anxiety or maybe she was thinking a little paxil for depression this was a woman who had just been battered by her they withdrew their objection now one of the issues that i raised as far as the standard of review it's under a law if the defendant fails to object the standard is plain error however there were several appear to mislead the jury and the basic number in that argument is that the instructions to find second degree murder it's hard for me to see how you could   definition and that would then be able to say well of course it was a deliberate shooting but the man's whole aspect of the shooter was trucks that we can reduce that rationally and with a rational basis to a lesser accident not act deliberately in accord with my deliberation and i could act deliberately without having done any deliberation i could do something on purpose without having given it much thought before hand and i could give something thought before he and then accidentally do the opposite of what i meant to do perhaps but that the jury instruction and this case i don't think really gave any guidance to the jury defendant who's at risk for suffering from partial complex seizures and therefore an evaluation should be done so the report of dr herring while it was prepared prior to that hearing was never given to the district court until that's in think in september of two thousand and three and dr moran this report the other defense expert did not even prepare a report until april of two thousand and three so well after court and says your honor we have a concern about the defendant's competency and that is based on the not on the fact that she intends to offer this defense that her five year old did it we don't think that that raises the competency issue she first raised that in august and we think that that's a jury question however what she's currently telling us for the first time is that when the murders occurred she heard what she believed to be processed sounds coming from the children the court found that based on that information that at most it would go to the defendant's mental state at the time of the offense not her mental state or current competency to stand trial or to continue in the trial and the government's admits that that was not a clearly erroneous decision particularly in light of the fact that the very next day the defendant testified over one hundred ten pages of testimony that was coherent rational nothing's been pointed out other than her theory of defense which as the court pointed out she'd already confessed so many times to having murdered her sentenced what happened was she went down to tucson for examination the doctors there were again concerned the district court sent her black back to carswell for a thirty day commitment dr shattuck looked at her again and said you know at this point the defendant is willing to recognize that she does have some mental problems she's suffering from depression she possibly has post traumatic stress and drama but those things don't impact her ability to understand what's going on or to assist her counsel she's got good memories you can discuss all of the relevant factors regarding stanton thing but we're going to we recommended provisional sentence because she is in need of care or treatment we think she's at risk for suicide therefore the best place for this woman to be is in a medical facility as opposed to a standard be all people selling and the government and that's that on record again before the court where no one said she was that the definition of malice aforethought that was given by the district court is that correct definition in the united states versus hauser which just cited in the government's brief this court approved the definition of  of forethought to kill with malice of forethought means to kill either deliberately and intentionally or recklessly with extreme just regard for human life so we know that this question already ruled that that definition is appropriate therefore the question becomes the only distinction between first degree murder and second degree murder is the element of premeditation whether the definition of premeditation is somehow confusing in light of the proper malice aforethought instruction and the government's dismissed that it is not confusing the definition that was given of premeditation is premeditation means with planning or deliberation the very sentence gives the jury and idea that deliberation means planning it's anonymous west planning so the government to admit that a juror of common intelligence can  between the definition premeditation means with planning or deliberation and the malice aforethought definition deliberately and intentionally because again in that very sentence you ha diena the same definition was given that rather than as i recall i think it was second degree and voluntary manslaughter and it was the definition reckless disregard last or standard and equated with voluntary manslaughter as opposed to second degree murder negligence standard as opposed to the extreme disregard that's required for second degree and in this case you the distinction is premeditation is required for first degree pre the residence she called nine one one to report that something had happened she done something very bad they need to send an ambulance the whole nine yards after she makes that phone call when the police get there the family is concerned about why emergency personnel are there they have no idea what's going on so the defendant is taken outside by the e m t while the police officer explains to the family that they're spending nine one one call and therefore they're going to take the defendant to her house to find out what's going on the defendant are the only testimony at the suppression hearing is by the police officers the defendant did not testify nor did she present in the witnesses and the testimony at that hearing was that the defendant voluntarily handed over the keys to her house and said you need to check on my kids something that's happened without asking any questions the officer says to the defendant you are not under arrest but we are going to detain you for purposes of taking to you do well to some extent i think you can look at crawford which is cited in the government's brief because in crawford it's different in the context that it was the prall starch and it was an illegal parole search but then they asked the defendant if he'd be willing to go to the f b i offices to be interviewed he agrees to go to the f b i offices and if the court looks at the defense trial testimony in this case that and it cited in the government's brief in a footnote the defendant testified at trial that she willingly went with the officers to her house to check on the welfare of her children she wanted to go with them so in light of that trial testimony which this court can comment about the fact that they needed to hurry and when once they got to the residence the agent or the officer held up the keys and said you i have your permission to go into your house and she said yes hurry up the kids are in the bedroom so that there was no questioning during that time there was just volunteered statement both to the e m t to him she admitted that she had shot her children and to the officer when she helped when he hasn't the kids to ask permission to go in so the government's and then it was only after the officer went into the house found the deceased children came back out and got the background information as far as booking information mirandized the defendant and she admitted to having killed the children so i would submit that i'm that record again undisputed record that she was not in custody for miranda purposes but in any event there were no miranda violations because there were no questions asked the statements were volunteered and that  there was no constitutional violation of what  we have to reach any of that and it seems like first of all she repeatedly confessed the times other than during this detention that may have been a theory and second her defense was yeah of course i confessed i was trying to protect my five year old by lying and taking responsibility for a crime i didn't commit that's correct but i would definitely agree with the court that yes that's the proper analysis particularly t we even need to reach that some a little wary of making a law in an area where there is anywhere in the first i think that the court has to decide whether or not she was i agree i'd like to retract my initial answer and say i think you do have to determine whether or not the initial detention was good or not and by that i mean constitutional with miranda rights given and what have you because there was the subsequent terror there was no interrogation until after the officer had gone into the house seen the deceased children and came back out it was at that point then that he wants to have probable cause he  if so so even if this court were to find she was in custody for miranda purposes because there was no questioning there was no violation the questioning happened after she'd been detained for the investigation court absolutely and i'm going to see if i can find makings really quickly and if not i will submit the citations to the court after because i am absolutely certain that that is the case miranda only has to be given if there's an intention to or deliberation so even under under the government's theory the jury could have used the same mental state for second degree murder and such through that for first degree murder that's why i think there was plenty here thank you