evidence from the neighbors petitioners neighbors that in fact they have told you know that mr hall on guns and perhaps because it's such an agreeable day or park where we have a standing room only crowd rather than start on any of the many points of disagreement i have with the state the state has with me i thought i'd start with three points of agreement because it helps to put the disagreement in context on the first point of agreement with regards petitioner's testimony at trial petitioner testified that the neighbors have told the world with holes gun ownership have to do with that sequence of facts it has to do with it in three in three context and and let me answer the question first by talking about what the evidence was petitioner testified that the neighbors told him hall had guns counsel did not present evidence that in fact would have corroborated that and remember the trial court heard petitioners testimony and instructed the jury that they could acquit him of murder and convict of manslaughter on what's called imperfect self defense if they found it credible and the  and reasonably believed he was in fear of his life so the trial court felt there was sufficient evidence to go to the jury on that the question is and this is response position as framed in your honour's question respondents as well good lord the fatal wound wasn't a gunshot wound so what prejudice could there be from the farragut introduce evidence which confirms his state of mind at the time of the gunshot wound and that brings us to the point of disagreement and here is where i think it's relevant to the trial court in addition to instructing on perfect imperfect self defense instructed on what's known as the original aggressor doctoring and in california that doctrine provides that you cannot as a defendant rely on either perfect or imperfect self defense if you initiated the assault wrongfully so the question is since all parties agree the assault was initiated by my client when he fired was that wrongful the evidence which trial counsel failed to present the evidence that the neighbors could have confirmed that t relevant for that because of the original aggressor doctrine and i have to say and i guess i take the fault on this i've been notoriously unsuccessful in getting the state to address the relevance of this evidence to the original aggressor doct what's the defense at that point well the defense at that point is it's certainly as your honor framed the question it was unreasonable for him to take that action the trial court felt there was sufficient evidence to go to the jury to see if it was an honest belief because remember petitioners testimony was that hard hit him guy has at that point well first of all it's the gatekeeper function the jury cannot consider the defense that the judge has said there's sufficient evidence of under the original aggressor go after it so it has relevance to a gatekeeper function it's an essential point the judge already only if you find that initial assault was not wrongful so the original aggressor doctrine is part and parcel of the imperfect self defense this evidence is in a way is directly relevant to imperfect self defense even after the gunshot wound precisely because the original aggressor doctrine is tied up with the defense now in addition to the original aggressor doctrine there's there's there's another aspect of this case that i don't think this has received sufficient attention and that is this the prosecutor recognized that even under this new state of facts and your honour's of accurately stated that the gunshot wound wasn't a fatal wound it was the subsequent blow the prosecutor turned to manslaughter went in his argument and he told the manslaughter remember is that you believe what he's telling you that he was actually in fear which i say to you was not accurate so the prosecutor i think to his credit her credit recognized that for the jury to accept imperfect self defense even under these facts they had to believe defendant and then the prosecutor on five separate occasions  his closing in her closing argument told the jury you can't believe me you know why because he didn't call and it was from his testimony where the neighbors again and again and again he asked the jury where are the neighbors but we know where the neighbors were they were sitting in court they could have been call and counsel didn't do it so really it's the combination of those two elements it's the original aggressor doctrine and the fact that the prosecutor not only recognized that petitioners credibility w petitioner's case but fostered that credibility precisely because the neighbors hadn't been call and there's one other aspect that i think renders it prejudicial and i understand i understand the state's argument i understand the court's questions about the separation in the time this wasn't a gunshot wound the original aggressor doctrine the nature of the credibility but there's one other aspect that i don't think is received sufficient attention and that is if the jury convicted defendant of first degree murder i wouldn't be  i wouldn't be here arguing this but let's look at what the jury did after seventeen hours of deliberation they unanimously to quit first degree murder now what does that mean that means that the killing was not planned and it wasn't  planned or premeditated and that is precisely the theory on which imperfect self defense was based the jury was coming very close as close as they could without this evidence to accepting the imperfect self defense theory and then of course we have the jury's question and let's put it in context in a few seconds i have because i do want to reserve some time for about all the prosecutor argues that petitioner testifies i thought he had a gun because neighbors told me he had a gun the prosecutor tells them four or five times you can't believe him because he didn't have a gun where the neighbors the neighbors didn't call come to testify and what is the jury asked for during that seventeen hours of deliberation before unanimously rejecting the state's theory they asked for the testimony of the neighbors about the gun and they are accurately told there was not that this kind of testimony would have been important to the jury in this case with the original aggressor doctrine with the credibility of defendant with the prosecutor's argument i think i think the court needs to reject i will reserve the minute and a half i have left for about a year i think thank you that there is no plausible case that he can make that he had a reasonable fear at the time he beat mr hall to death that his life was in danger mr hall was an old man he was retiring that very day with a very powerful handgun and he just sprinted towards mr hall after shooting at him and he claims that she was afraid because mr hall  an act which did not even leave any visible mark which goes to show that in addition to mr hall being told he was feeble that's the best he can do is to throw his thermos out of palenque hit him in the nose and not even leave a it assumes that he has a self defense theory that he can present at the time he actually killed mr hall now as far as relating back had  ownership tended to prove that two years prior seen it a handgun in his drawer and that several years before that he had shot a snake were not facts that were likely to induce any sort of fear in mr hall stephens testified right yes that is trouble and said that he was aware that paul had guns he did he did testify to that  and when he saw him on with the fateful day paul had something in his hand and stevens thought this was a weapon yes he did now i should point out that wouldn't hall's  history of use of firearms and ownership of firearms have been relevant to that point to corroborate the defendant's testimony that at the moment th remember something honestly the nerves of the day that sort of thing it's not unusual at all that when you get up on cross examination you have to rehabilitate and witness a little bit but in this respect it makes that didn't make much difference whether he came out on director across the stevenson testimony at his trial in his own defense was at the moment the confrontation started he thought all was armed yes and and part of his mindset in this regard was he knew hall owned guns and had used them in the past albeit lawfully and and no one in the prosecutor didn't challenge that claim that he made on there was no they were the neighbors what with will be the point of that unless you're trying to cast doubt he was addressing other aspects of the neighbors appellant has raised this very issue before the state court and before the district court and both courts made factual findings that the prosecutor was not making any assertions concerning what the neighbors told felt about the guns in fact the prosecutor was referring to  something he had thought about even that was not directed towards what he was told by the neighbors but rather what was going through the talents mind and cooperation with seem to be an important part of that theory whether it is to get him through the gate or otherwise and you have a question from me jurors about the very evidence that could have been put on so why is it not enough to show prejudice given the facts in this case there's no way that he could have persuaded a reasonable jury that he had the actual fear after he saw and realize and knew that he did not possess a gun so what do n the jury was deliberating over all that time and that he did him a great service in avoiding that first degree murder conviction ok and i'd also like to point out and i agree with him there is no plausible argument that this was reasonable that's why it's imperfect self defense that's why the trial court as a matter of state law found that there was sufficient evidence of imperfect self defense so lest there be any disagreement confusion i'm not arguing for perfect self defense here the him to death with which is exactly what makes it unreasonable but it certainly sufficient under state law for the jury with heard that and the testimony of the trial counsel failed to present precluded that because of the gatekeeping function of the original aggressor doctrine my time is up the court has been most gracious let me just add one point