were no here for malone versus carpenter seventy five and sixty twenty seven  may please the court robert jackson on behalf of appellant petitioner ricky ray malone also present this case is about the synergy of errors three errors combined in a private mr malone of his voluntary intoxication defense which in turn those areas prevented his jury from properly considering and convicting mr malone of the lesser included offense and the third air involved counsel spatter to properly prepare their expert witness who supported that all in terry intoxication defense as for the instructions let me as  well why was there no way there was no way in the instructions didn't the arguments of counsel the way the jury trial was conducted make it very clear to the jury that that the issue here is whether he could have intended to kill whether he had malice of forethought given his state of it was clear to the jurors i would i would presume that intoxication was at issue in the trial however it was also clear to the jurors that they were instructed as to the law by the instructions of the trial court unless the state has proved beyond a reasonable doubt each element of the crime these elements are the first three or the death was caused with malice aforethought the next instruction says and also forethought means a deliberate intention to take away the life of the human being so even if there was confusion i think probably everybody including your head for serious agree that there is confusion confusion in the structure of number thirty eight because rea should have been obviously of bella's for thought the jury was specifically instructed that they could only convict a first degree murder if they found that the state has proven malice of forethought and the jury was specifically instructed problem here is that the voluntary intoxication instructions baling back of the circle back around to the first degree murder structure and here they failed to do so because that mens rea of the bracketed men's railing which was left in the and wasn't replaced with malice aforethought so didn't point the jurors back to a right to malice again there was a problem with thirty day so let's say the jury didn't get additional clarity from the first sentence in instruction thirty eight but why would there be a need for additional clarity and instruction number thirty eight if twelve and thirteen already unambiguously clearly informed the jury that they could only convict of first degree murder if they found that there was at the state has proven a deliberate intention to take away the life of another human being well there is more ambiguity your honor we can look at instruction forty one that talks about specific criminal and uses that language with specific criminal and didn't and it talked about intoxication having overcome the specific criminal intent of willfully and that may have had the effect of informing these jurors that for that was defining a phrase that that was defining a phrase that was never ever you i mean it was confusing because that definition was for a phrase that was never used but that's sort of like say that if the jury was instructed that meeting of what constitutes a bank is x well is it doesn't really matter because it's not issue in that case the judge never use the defined term so i'm not sure why forty one creates any additional confusion i think it became an issue because forty one talked about the intoxication having to overcome the specific criminal intent of well fully and the court of criminal appeals took issue with instruction forty one and it's discussed in the footnotes that that specific criminal intent language is not used elsewhere and the perhaps that's pacific criminal intent language should be back in the murder instruction that the specific criminal intent for first degree murder is malice aforethought and if you look at the murder instruction that's not in their element is just malice aforethought it doesn't say anything about specific criminal intent well to judge back eric's point adding on to that instruction number is that the jury needs consider all the instructions as a whole so i mean whatever willfulness that they get out of instruction number forty one i guess it is you're still in situation when the jury got thirteen that defines malice aforethought wel says that you have to have knowledge forethought for this crime and twelve is particularly significant it would seem to me because it's defining what the elements of the crime or message are is going to do anything are they going to look at that that you know a list of the elements and know what they need to find in order to find the defendant guilty and just the four i stopped and they would know based upon everything that went on in the trial and based on the instructions that the only thing that really was the defense against them finding that was volunt right and therein lies the problem for her the jury wasn't adequately or actually and those are the words of those who see a instructed as to the defense of voluntary intoxication well well i don't think that's what we're debating here i mean i don't think that's what's at issue so so the o c c find they weren't accurately instructed the question is whether well depending on how one can choose what the law is the question is whether that was harmless and that leads us into this whole analysis of both what the defense lawyers did what the prosecution did and what the instructions say right that's right and mr long's jury couldn't put that defense to work because they weren't instructed in north of those who ca that he should prevail on his voluntary intoxication offense if you could show that the intoxication overcame malice aforethought your argument is that when this narrowly your argument is not i'd i'm sure that of what you just said that the defended has to prove the affirmative defense of voluntary intoxication no you've never argued it now in oklahoma would i have understood your argument to be that if the defended essentially can negate the evidence of malice of forethought joining that that he or she was so drop that he or she could not have formed the specific intent to deliberately intent to deliberately take away the life of another person that person could stand up and say the state has not proven beyond a reasonable doubt the fourth element of instruction twelve right that's correct now so let's say there is no instruction of on a voluntary intoxication now in that case would there be a deprivation of fundamental fairness would there be a constitutional violation i'm not entirely sure i understand your your call well no matter what usually the claim that usually become comes before this court with respect to the voluntary intoxication offense is the petitioner argues hey i was entitled to that that defense i was in part of the instruction in the state court and i didn't get it and they argue that in thornburgh and my colleague presiding judge hart wro for a panel that said even when there was no instruction on voluntary intoxication there was no constitutional violation because the jury was already told much like instructions twelve and thirteen in our case that the jury could only convict of first degree murder if it found that there was malice of forethought and so i have difficulty in seeing how if a if if our board in a published opinion has already said that it's not a constitutional violation not to instruct at all on voluntary intoxication why the confusion in the first line of instruction thirty yet thirty eight would somehow the protections of the constitution well you get an instruction in thirty seven that he is defending on the basis of voluntary intoxication right in your honor i thought the question was well does even get the the instruction or does he have to have leading the instruction well i'm out my only question is will how can it be a constitutional violation if we have already said that under the identical scenario except the jury is not told anything about voluntary intoxication that even in that extreme situation there is not a constitutional violation and here you do have instruction thirty seven that is far more favorable situation for the where the voluntary intoxication defense was issue in there and the courts have the right to present a defense of the fundamental element of due process of law and there's other cases about affirmative fences that this court has looked at united states versus lofton so it's not that d process analysis it i thought the point you were trying to make earlier was even if you didn't have a right to have the instruction once he had the instruction he had a way to not have it screwed up i mean that's right to have the defense and therefore he this goes back to the first thing this is a few minutes ago it's not as if the jury was instructed voluntary intoxication is in the defense they were instructed in correct they weren't instructed on something they weren't told something contrary to all it's a matter of the language was poor imprecise so there was an adequate guidance to the jury it seems to me and if that's the case if my understand is correct in that regard then the o c ca's determination that the way the trial was conducted in particular the arguments of counsel the closing arguments and that's clearly what the case is about is whether the voluntary intoxication prevented him from having the requisite intent in that context the o c c a found any error was harmless and that does not seem to be an unreasonable the instructions were objective lee erroneous and they were incorrect under oklahoma and those c c a especially when after these instructions and criticize the whole series of voluntary intoxication instructions those c was so severe that they term their ass planner and that's next incredibly high showing it even entails a showing i have a substantial rights violation well i'm not sure about that that is being used in that precision because then they went on to do is as harmless error which doesn't make a lot of sense right there we're just saying it's an error that we will recognize even though there was no objection  you going to be me something that shows i misunderstand in the opinion here there's a oklahoma jury instruction case that came out after this one barnard versus state two ninety people thirty seven fifty nine and in that case the first and second elements of a plane error analysis was was there and was a plane and then the prejudice and effect on the reputation of the judicial system the third and fourth prongs aren't included i think that's the only reasonable way to read what they're saying in plain air but let me let me get to the more important part it's one thing to say that the instruction was it affirmatively misled the jury but because it didn't give adequate guidance to the jury that's the distinction i'd like you to address what in what way did that instruction tell the jury something that misled them as opposed to didn't adequately guide instead they were given the technical legal term mens rea which means nothing to laypeople right but it could be supplemented by what the jurors what the attorneys say at trial which certainly seemed to be the case here that's why ineffectiveness of defense counsel they were caught sleeping structures with red or they didn't understand the contras of the voluntary intoxication sense and this becomes clear when you look at the fence council's closing argument of the specific and but she also said the very last thing she said we would submit to you that mr malone was so intoxicated i met and large had they did not and could not have physically formed whether that be a second before an hour before day before to kill troopers make green and she she didn't just use i don't know of both attorneys were e mail but i think that attorney anybody correlate that with the definition of aforethought it becomes clear that that's exactly what she's talking about a deliberate intent to kill the jury was never instructed that mens rare equals specific criminal intent or mens rea equals or not an end end the definition an instruction i could fish it out here but in the instruction provided that thirteen i think it is said that malice aforethought means do you have a deliberate intent to kill and see that's not that's not well whether min's rate was defined in the charts and we have had cases like boyd where we looked at what counsel did in trying to understand how the jury would have understood instructions it was either similar supreme court case in which we talk about the notion that jurors aren't lawyers and they're not sitting back there parsing the language they are there trying to understand what they're being asked to decide these instructions provide them guidance so everybody in this case is talking about whether  r malone had a deliberate intent to kill they had an instruction before them the divine malice aforethought as a deliberate you need to have a deliberate intent to kill then why wouldn't the jury be able to understand that when the you know and reasonable in saying that there was no harm  intoxication and second degree murder here the arguments of counsel can't take the place of jury instruction one so i don't think one's positing that if you go back to the point that judge hearts was making earlier if you have if your jury instructions say in the counsel says not then it's clear that the jury's going to follow so they are presumed to follow it but if the insurance strikes and say and then they leave a little gap as to what a supposed to mean and then counsel says let me tell you what a means then why is it the jury following the instructions in the fuller context of the proceeding and saying i know have a sense fully i'm proceeding as a whole including what evidence was introduced and what counsel argued i in grant in the recent grant case that i am analysis was used in a capital case to support the judgment to the seventh circuit case perry versus neal and there's a voluntary intoxication discussed in that case and the jury was instructed in that case with respect to sentencing they couldn't consider voluntary intoxication that was wrong and the courts below it said well that instruction may have been wrong but it was very obvious from the evidence and from the arguments and from an expert witness that you could consider voluntary intoxication and seven circ said oh oh no we can't do that here the jury was given these parameters and even though it was clear that that was an element in the case and that was evidence that that didn't overcome the defect with all due respect to the seven circuit i've just been talking about supreme court and our circuit and it seems to me at the end of the day that's where i'm going to go and so i don't care what the seventh circuit did in this context i mean the point is we explain to me our lot doesn't bind us then i'll care about the sevens or tell me the instruction was objective really iranian this i think if we look at taylor or methamphetamine intoxication was it issue and there was a voluntary intoxication defense and that case that linked up to the second degree murder instruction which we had here methamphetamine intoxication expert he'd practiced medicine since one thousand nine hundred four he'd been qualified over three hundred times at the time of the test fine that's great he was a presser at the university of california san francisco medical school and he was a great have compared to me expert here counsel handicapped his advocacy they didn't even arrange to have him interview mr malone until the middle of trial and there is no question that ultimately would have given exactly the same testimony having it mr go to ridge made the arrangements three weeks earlier right i don't think the testimony would have been necessarily the same first i'll just point out that both of these dr smith like all expert witnesses provided an expert witness disclosure and he said well it's my understanding this ruling was in a total blackout based on his methamphetamine abuse and his abuse of opioids but i want to interview this guy because of this opioid blackout i don't know what's what's going on if you had interviewed mr malone ahead of time he wouldn't have been able to untangle this mess of what had happened and this mask created spitz you met with mr malone correct yes and what did he tell you he told me that up that that he had blacked out and what did you say i said well methamphetamine doesn't cause you know blackout and he ultimately admitted that it was why to both me and mr gutteridge wouldn't be here why would we get in for anything different that the pitcher presented to the jury this oklahoma jury was that the defense went to california and brought in this expert this california expert had them sit down with their client for an hour and a half and now they were changing their defense theory in the middle of the case previously defense counsel laid the mr malone that would have been necessary at dr smith came out earlier the state court acknowledged the resulting mid trial switch of defense theory made the state's task of discrediting milans experts and that's that much easier and petitioner and the district court defendant talked to three or four people later that morning if the murder didn't see anything about hearing voices he said he didn't remember stuff in the video like how do you reconcile he is statements his new story with the video i mean that that's the problem for you is that this is a terrible case and mr malone's guilt of this homicides not not at issue we don't press that it's what degree of homicide was it issues how his brain was functioning that's that's correct and there's some pretty good evidence of those brains functioning he was severely impaired at that time whether it's cument of air there's an inherent synergy in these claims and that's what this court has looked at time and time again and either granting or denying relief for human of error here they all go to mr malone's defense and the that at the deference as it relates to the o c c is chapman determination is not still a relevant factor and let me give what seems to be at least one plausible reading of the interplay between those two and you can tell me why it's wrong which is that what the supreme court is saying is that you're still going to look in see whether the state courts reading of chapman was unreasonable and if it is on reason then it necessarily follows that brecht is not satisfied in that that in fact that you cannot meet the bright test because it is not an unreasonable application of chapman in the saw stop there and try to get your understanding of the interplay between those two cases i think i'll start with friday that was the first case in the issue there as well illness and choir of the state courts chapman determination and fry said no we still apply direct direct is the more stringent standards more stringent then i have chatman plus twenty to fifty former de davis came about and talked about the importance of the state court decision under twenty two fifty forty but it didn't end up and fry still at the end of the day that davis holds th bracket substitute the twenty two fifty four d inquiry such that if breck this out aside then the state court decision was necessarily unreasonable and that's my reading  ask is the question of whether the o c c actually result a constitutional issue to begin with when it determined that the voluntary intoxication instructions were flawed it seemed to me that the o c c was speaking entirely to state law and saying that those instructions violated state law and so first question is there anything in that opinion that suggests that the o's he either contemplated or believed that it was  being a constitutional issue ok i gather from looking at the briefing the direct appeal briefing that there was a constitutional issue presented to it so it's an exhaustion question the question is whether the o c c actually res lt in if it didn't result it what standard of review are we going to apply to this issue that we have now granted this you know way to relative to fundamental fairness so those are the two questions  reference to any sort of constitutional issue it was talking about what what was valid under state law  valid i think that's right at the front of the of the state court decision the second indication that they found a constitutional violation and it's in the in the footnotes is the test that they apply they drop a footnote and say well this is a this is a fair trial violation were applying matter to this and that or must be appropriate because neither was applied in it by the supreme court where an element of offense was was i'm looking at the case and why does it necessarily follow that that you netter has any connection with whether a constitutional violation was presented initially i mean the question if wouldn't the board do exactly the same thing if there was an instructional error that was based atar leon oklahoma law they violated oklahoma law in the question is what is the outcome of that alesha is this violation harmless what do we do with that what why does it look any differently  is the standard for constitutional violations are most beyond a reasonable doubt ok and the simpson case not kendrick simpson but the simpson case before that the judge lumpkin offered talked  right that there was a constitute that the o c ca held that there was a constitutional violation following up on judge holmes earlier question with regard to what is our standard in determining whether or not there was a deprivation of fundamental fairness what would our s seems to me that it's a constitutional issue the one on its face doesn't apply if you're saying in your breeze that we have to defer it you've said two things one is that the o c c a hill that there was a constitutional violation and the insulation or no shelter to be provided by twenty fifty four d it's for this court to decide if there was a constitutional violation and if there wasn't a constitutional violation the navy has released it we just use our independent judgment of that we really don't care what the clearly what i'm focused on right now is error or not integrate has nothing to do with the error or not placed in does we're talking about right now is was there a constitutional violation of fundamental fairness now we don't have to worry about the clearly established law issue is a constitutional law violation as of fundamental fairness brecht is you've just acknowledged relates to the harmlessness of a violation we're not even talking about that so the question is if there is a violation what well what standard do we use to discern whether there is a violation is it the is still the standard that you kept referring to in the brief before we knew there was clearly established law or is it something else and in the standard would essentially be that reasonable likelihood standard boy that comes from boy so is that what we would use ok so presuming a constitutional violation what i'm asking the question is we have to determine whether there's a constitutional violation what test do we use to determine whether there is a constitution mr malone's position is that the erroneous instructions deprived him of his fair trial right in the right to resent to the defense once that violation is established then the review would be pursuing to be harmless error here if we're looking if we're looking at the stele on cases then to establish the violation would be a reasonable probability that the challenge instruction was applied in a way that violated in light of the new grant of the c e o a there is an antecedent issue and that antecedent issue is was there error at all to begin with that not a question of whether it was harmless or not was there error at all and so on that issue what i'm trying to get a sense of in your reply brief you started importing brecht again and it seemed to me that was a conflation of the question of whether there was error with whether that error was harmless is would standard you want us to use to discern to the point that we don't have to defer to what the o c a did on the question of whether there was a constitutional violation or not what standard should we apply to discern whether there was a constitutional violation based upon this jury instruction with respect to a flawed instructions and then the court applies braddock's after applying the style so both of them are stacked and i believe that's a position that's respondents taken that we have to make a showing under a style and subsequently have to make a showing under wraps i believe that's incorrect one showing a farm's enough to grant relief and i think the question posited by the first feeling ground whether or not there is harmless i think that controls well how could that be i mean at the at the end that's that i'm glad for that explanation that that dusty that what we're talking about here in one sense there are two determinations that have to be made one is the well if there is that first question are you saying there is no quote you know you said to the harmlessness c e o a controls but how can that be it was the only game in town so with the only thing we ever talked about intel we granted the new c e o a now there are two independency always here you know so we have to decide on the first part of it but isn't that an antecedent question to whether there was harmless error whether there was a error at all the court most certainly does have to answer the question whether that was constitutional here ok and on answering that question do we defer to the o c c a determination as you say it that there was constitutional aaron i wish that was the case but the way the e p a was is set up is the twenty fifty four d just swings the door and it's for this court to make the determination as to whether there's a console ok so we have to make a determination whether there's a constitution our next question what standard do you want us to apply to make that determination me get your response to this the still class boy uses the phrase essentially is it reasonably likely that the jury applied it except that the instruction is erroneous that it a this instruction iranis destruction in a way that the private and a fundamental right and so the question is not whether the instruction the text of the instruction is not right the question is whether it was reasonably likely that the jury that is not a lawyer sitting in the back room parsing the you know the the the comma in the in the indefinite article word definite article whether that jury is it recently likely entirely in light of all of the proceeding that they would have deprived defendant of his fundamental right that's the boy test so we're not talking about is that the test you want us to apply before in this is important for a word before we start the respondent has has argued in the briefs that this fundamental fairness inquiry it's less rigorous than the substantial injuries affect test so if we've shown harm harmful here we've by definition brecht is a harmless error test subsumed in that implicit in that is the notion that somebody somewhere found an error to exist and so how can that and test be the only one you apply because the question a continual there when there is a question mark that will sit in my head is do there's got to be an error there somewhere doesn't it and there is mr malone's fundamental right to have his defense presented heard and apply by his jury here that jury was unable to do so with these inadequate in an accurate instructions does reason we said in what was the case spears that you don't need to to then look at harmless error if you found a fundamental fairness violation and a that was that was an issue that case involved and evidentiary issues use of inflammatory photographs not anything to deal with the elements of the offense or the defense and what we said is you don't need to go into harmless error we've already done that we had to do that same analysis to find a violation of fundamental fairness so it's not just a violation it's not just the error that creates fundamental unfairness it's the error plus the impact in the context of the case do you agree with that i agree and i think there's there's extreme prejudice here when we consider these errors and cumulation and we can look good littlejohn versus royal where there is discussion of the synergy if they're making those errors more potent than the sum of their parts and i think that's what what happened here with may it please the court i'm jennifer crabb representing the respondent i'd like to start by correcting a couple of things that i disagree with that petitioners counsel said when speaking of instruction forty one he said that  the the what instruction forty one is it's the definitions that apply to the voluntary intoxication defense and there are four of those and two of them are incapable of forming special mental element and then another is incapable of forming specific criminal intent and counsel said that it was the incapable of forming specific criminal intent in definition that used the term willfully but that's incorrect it was the incapable of forming special mental element definition that used the term willfully in the reason that that's significant is because this judge backtracked pointed out the word special mental element are not used anywhere else in the jury's instructions and so there was no way for the jury to apply that definition or the term willfully the other thing that i wanted to correct is that counsel said that the court of appeals found the existing wi g instructions not just as used in this case but the existing wi genes directions to be deficient and they specifically said in paragraph thirty four of their opinion that the instructions were not legally inaccurate inadequate or unconstitutional this case boils down to all three of the alleged of the admitted in some cases errors boil down to petitioners intent to kill or lack there of are you saying you are going  but let me ask you a question because you also maybe before you get into the content of your individual arguments with regard to the police believe you have an argument in your read brief with regard to the existence of a clearly established constitutional right i assume that you make that argument because you are assuming that twenty to fifty four day one applies i don't see how twenty two fifty forty one could possibly apply if you're correct that the o c c a l that there is a constitutional violation and to explain that question as i understand  he or she shows that the decision by the state court was contrary to an unreasonable application of clearly established federal law well if that applies when the state court finds a constitutional violation it would be an absurdity because that means that mr malone could only show that he was entitle behaves will be in light of the finding of a constitutional violation unless because this court has described that the clearly established part of the one as at threshold question and i understand you're saying certainly he would not have to show that the exit date court erred in finding constitutional  a threshold question and also looking at the broader context of a d p a and its purpose which is to affirm reasonable state court judgments it doesn't make sense to allow petitioner to obtain a federal hate b s really for for a supposed constitutional violation the right to which is not clearly established simply because the state court gave more protection by finding a constitutional error and yet had the state court in that same case balance no constitutional error this court wouldn't even review it because as a threshold matter there is no clearly established law well he said that there is cases that  error and it was plain and we also used the term we're talking about the four pronged test for plane air which in each prejudice we don't we can say that what happened was contrary to the constitution but unless the defendant was prejudiced and the standard would be whether we can say this beyond a reasonable doubt that he wasn't prejudice unless he was prejudice he's not a victim constitutionally or under twenty two fifty four d one one of the components of the state board's  could be that yes there was constitutional air but it was harmless and the supreme court has said i believe that under twenty to fifty four d one we defer to the state court on whether the error was harmless was it an unreasonable terminations of that if that's if if i'm correct about the supreme court's doctrine in that regard  there are there is case law to the effect that we're talking about that sometimes the state court is challenge because it found no constitutional heir sometimes it's challenge because even though it found constitutional error so there was a constitutional error said it was harmless sometimes the state court doesn't decide but there is a constitutional there and says we don't need to determine that because it didn't affect the proceedings an constitutional error and then it applies chapman constitutional tests could it not be the case that the question of constitutional error whether or not is applied outside of the rubric of of the won or the ad put generally and the question of whether that error is i mean is it possible that whether that error was harm fole or harm less would be applied because that question would be resolved under the reason for that being that in the first instance to judge back rights point it just seems there is there's an inconclusive between applying to the first question of their resolution that there was a constitutional violation but as it relates to the second question they denied the petitioner relief under a constitutional test and that you know this case is little strange when we know because ordinarily goes it is not for anyone in this situation you have the sort of you have them granting will leave but holding that is harm less the only way they get abs really is when we look at that question so it sort of triggers our normal route of doing epa so i mean is it possible that we could have this sort of split screen in which we first say under not giving up the difference to anything just say is that were they right about a constitutional violation and if they were right then we have to do at the difference as a release to the second issue yes and i think that's exactly what this  i agree you will review don't know how you will make it a noble determination of whether there's a constitutional error and then you will apply to me two fifty four d one or two to the harmless error and my argument regarding clearly established law is something of a moot point or is a moot point i guess after grow some but i will explain since you asked that my position is that although the state court did find a constitutional error i tried to explain this before but maybe i didn't do so adequately so let me try again as the court recognized in house versus hatch the state court a state court might find a constitutional violation in the absence of supreme court precedent requiring it to do so they can give a more broad interpretation of the constitution than the supreme court has one of the that the then that this court might and so that federal habeas relief in my view should only be available for those constitutional errors which have been clearly established to be constitutional errors by the supreme court so it should this court should ask is a threshold matter regardless of whether the state court has or has not found a constitutional violation is there clearly established law on pawn which the petitioner can rely in this case to show a constitutional violation  what difference does that make given the claim of ineffective assistance that there's no question that was a constitution or recognized by the supreme court of the us supreme court that failure to object to this instruction was ineffective assistance was deficient performance under the constitution so even if this was an instruction just required by state law we wouldn't be doing that as well as your fundamental fairness argument i mean i and what i'm thinking about how this opinion shape up i mean it is a distinction with a difference i mean a what you're saying is that we you know granted the point is moot by grissom but you were saying we actually would look to see as it relates to that fundamental fairness thing that we granted to see a way on you we would look to see whether that was clearly established law if i'm understanding it correctly but the flip side dish in that at least i thought i heard judge back right spouting and i think i'm espousing to some extent at least in terms of the question would be the other side would be no we wouldn't do that at all we wouldn't we grissom would be a relevant i mean when our when we write this up our own question would there all these issues mooted by our determination of whether there was harmless error and don't we defer to the o c c a regardless of which of these constitutional claims is made that we still an ask was it unreasonable for the o c c a to find that the problem of the instruction was harmless rather that via whether the problem of instruction is a constitutional issue on its own with there arises because of ineffective assistance of counsel or whether it arises because of some concern about fundamental fairness is there a difference in the ultimate way we would decide this case which is was the air would ever sort of harmless and to what a well what i could conceive of and this is what i want to try to understand for purposes of how what this would look like are we saying one is there are constitutional violation of the instruction itself does this constitution or does the instruction violate fundamental fairness one ok whether you buy it or not want to even irrespective of what the answer to that question is we have a question of whether the o c c is a violated chapman i'm reasonably i chat ok and so that the radically we'd have to reach that question three would be you know and then it would play out then we do the ineffective assistance and which would be influence of course by the answer to and then we would do the ineffective assistance as it relates to the dr smith and the rest i guess what i'm saying is at the end of the day do we still deal with all the questions or if we were to find this is of real pregnant thing for me if we were to find that there was no constitutional violation at the first state do we ever do chapman as a relate as it relates to the instructional  you do not ok in group versus another what the supreme court did it was a doyle error the state court had found the doyle violation the supreme court said we have to decide for ourselves whether there was a doyle violation they said they didn't now they did go on for with further review but that was because they wanted to determine whether the prosecutor could have committed misconduct by it appears attempting to commit a door of violations but no if this court finds no fundamental fairness violation for proposition one that's the end of the issue but we would still  is because there can be no doubt as to petitioners intent that night he took a gun with him and he asked for the gun specifically in case he got in trouble with police after he subdued trooper green petitioner asked where are the keys to these cuffs and when tripper green said he did not know petitioner said then you'll die and during petitioner's testimony at the trial on page one seventy seven of volume four of the transcript the prosecutor said if he doesn't give you the handcuff keys you're going to kill him is that what that dialogue indicates to you today and petitioner responded yeah and then we have the fact that after telling trip occurring that he is going to die petitioner shoots him twice in the back of the head at least one of those is a contact wound and as i pointed out in my twenty eight j in grissom very similar facts victim was shot twice at close range in the head and this court said that clearly established grissom's intent to kill and it does so here as well of those that relate to hearing voices what if you couldn't of what you said be consistent with his hearing voices telling him to do these in a theoretical world it could be but that would be an insanity defense and not a voluntary intoxication defense that would be that yes he intended to kill this person but it was because he thought he was being robbed by a drug dealer and the voices were telling him that if he didn't kill him then then the trooper he says he didn't know was a trooper but then the victim would it would attack him that would be an insanity  i disagree i think they're distinct i'm sorry i'm sure it'll be better in mind the instruction number thirty four which was regarding the insanity defense as a person is insane when that person is suffering from such a disability of reason or reason or disease of the mind that he does not understand the nature and consequences of his that now i don't disagree that meth intoxication could cause someone to fit within this insanity defense but i do think that  distinct voluntary intoxication is a state in which someone is incapable of forming the intent to kill whereas insanity occurs when someone may be able to form the intent to kill but the reason for it is not grounded in reality the voices told me to do it and that the two shots in the two to him i guess the hypothetical that i thought about when we were having this when i was thinking about this is if you realistically as to why should kill him but he knows it's a human being and he puts two shots in the back of his head is that correct or i think what the insanity defense that he was somewhat angling towards at trial was that i thought this was some to the voluntary intoxication defense it might have been relevant to an insanity defense but the fact that he's hearing voices has nothing to do with whether he intended to kill  issue problematic it's founded on an faulty premise that if they could have put on this testimony without complication that that late to adequately pursue my insanity defense and i would disagree with that as well but dr smith did testify it was the last question asked to him on direct examination that he did not believe that petitioner was capable of forming the specific intent but he never really explained why methamphetamine would have caused him to be unable to do something other than these voices which as i explained really that the fence was i was being attacked by someone i had been he had been at the inn hider stank and he said that he saw photos moving he thought there were people everywhere and so then he's awakened by someone who has a gun to his head and he thinks he's being robbed and the voices are telling him he's trying to get up he's trying to get up shoot him so that as i said his insanity defense and not a claim that i was so intoxicated th just didn't really understand what i was doing i couldn't form the intent to kill and course as i point out we know he formed the intent to kill he admits essentially that he formed the intent to kill that leads me to this question on the cumulative  preparing the expert which harmed the voluntary intoxication defense if the cube of their argument was with respect to the same raised to assuming that that's what it was then yes i agree that because he's making a different prejudiced argument now than he did then that that would not be let me let me follow my logic charges question in in purposes of cumulative error with other constitutional violations that they will be accumulated oklahoma law is different isn't it in the oklahoma court of criminal appeals they don't have a precedent like oracle do they in my recollection of oklahoma law in the o c ca is that the court of criminal appeals will only aggregate claims that ar themselves sufficient to create a constitutional violation so if there is for example an ineffective assistance claim that falters on the first prong we would aggregate that under carpet but the o c ca would  i cannot recall reading a court of appeals case that spells that out one way or the other in this case they said they found only one error so we know that they did not consider the deficient performance by counsel now i would argue that there is no clearly established purposes of a t p a review of the quarter camilla peals harmless error there is no clearly established supreme court precedent requiring the court of criminal appeals to combine deficient performance  think is another i'm not mistaken that say that when we find constitutional violations in addition to those constitutional violations that are found by the state's highest court that will  still within the privilege and they we give them the facts and they tell us what they think and if we don't like what they what they think we don't designate as an expert we go to the next potential expert now wouldn't any lawyer worth their salt not suggesting d'agata ridge is not worth his salt but wouldn't it be highly prejudicial to go ahead but wait till the sunday before opening statements and say we're ok we're going to use you why isn't it so prejudicial because if he had done what a real the lawyer right now does and that is hire somebody as a console to before you designate and if he into saying what he did which is this blows a big fat liar then it's still privilege you don't disclose here there's no obligation in state was to disclose it and then you learn the truth and so you don't falter at opening statement and say you know he blacked out because now you know that that's not true and you have another expert potentially that will give favorable testimony and worst case scenario you don't what that x who that expert might be what they might say any of that and then the other one is that the prejudice from this the revelation of the lie at trial is not nearly as damaging as petitioner makes it sound for one thing we know that petitioner lied to police and told them that he couldn't remember as well so the jury would have known that he was that he lied about his recollection for another and opening statement counseled didn't say that malone had a blackout she said that meth using methamphetamine affects your memory and then she asked each of the four witnesses petitioner sr and his three friends does methamphetamine affect your memory and they all agree that it does and then dr smith testified no you're not going to have a blackout but both defense counsel and the prosecutor accepted and interpreted dr smith's testimony as saying well you don't have a blackout that doesn't mean that you're going to have perfect recall and when you read petitioners testimony there's a lot that he still did not remember although he no longer claim to blackout i don't remember anything that happened that morning he there were a lot of things that he still said i don't remember i don't remember i don't remember and so defense counsel was able to still use what she said in opening statement in the test no she did listed for the from those four witnesses to try to explain petitioner seemingly convenient gaps in memory that he was using meth amphetamine no he didn't have a blackout but it still affected his  memory on that on that point i believe petitioner's counsel said something about the jury knowing that the defense theory has changed and there's nothing in the record to suggest that the jury knew that as i as i laid out the only thing really that the jury knew was the memory issue and  that was not as prejudicial as as malone was supposed to remember everything it still was accepted that malone might have gaps in memory  as i as i said earlier this case boils down to well there's a there are a lot of other ways that this court could affirm ultimately any error in this case was either not prejudicial or was harmless based on petitioners intent to kill he admitted in his trial testimony that his statements indicated an intent to kill him and he told j c rosser afterwards that he fired the second shot in order to make sure the trooper green was dead and so there intoxication how would that cut on that i mean you can have an intent to kill but if you had an intent to kill based on your theory you're being you're about to be killed how would that cut against wouldn't that still make their volunt intoxication defense viable and let me just clarify the self defense was my word that word was not used at trial because his testimony was that he thought he was being robbed in the voices told him to kill and so ground with two bullets in the back of his head you've still had intent to kill and i think you'd have problem with the law which is different than the self defense scenario right yes ok ok ok in the end what before you sit down i just want to get your take on the inner working between frye and davis because i mean actually there been consider a least a few circuit courts that have talked about this post davis and how that test should look now in light of day this what is you what's your view on i think this court has two options you can begin with whether the political appeals reasonably applied chatman and if you find that  did then that would injure inquiry and but if you found that the court did not reasonably apply chapman you would have to then go online and apply brecht or you could simply go directly to practice and and if you found no substantial and the i believe was the ninth circuit said we don't basically we don't care about the state court's decision because of fry and i think the supreme the supreme court was just clarifying that you still owe a lot of deference here trial of this right it was before the defense presented its case and in chief as for issues of intent this is a case of intent this one fully agrees about that whether this was first degree murder second degree murder that's what the the issue is dr smith testified quite a bit although i had unconvincingly him and he only met with mr lim for an hour and a half about methamphetamine intoxication and how these delusions play into that and mr malone testified himself in his defense and talked about hearing the voices and not shooting to kill but to keep the trooper off of him and dr smith reinforces that testimony with these two shots and there's these second serves a sizable gap between the the two that seems to fit with this methamphetamine to kill somebody it's just you doing it because the boys tell you to and we're moving into a real esoteric conversation and they're even touching on this this willfully language in the jury instructions versus the specific criminal any was that the harm was related to the inability to pursue an insanity defense in that theory now is that the harm elites to the inability to pursue an intent to kill under voluntary intoxication is a preservation said what i understood the colloquy to be in it that's correct me if you understood it differently and if you think that there is a preservation issue i don't think there's a preservation issue here hunter i think the harm on direct appeal and compassed both both methamphetamine intoxication mimicking the paranoid schizophrenia ma it counseled spent more time with that expert perhaps they would have had a more coherent presentation thought more about what they were putting in front of them the jury the court reversed with instructions to grant the rest thank you thank you very much