they certainly didn't get a fair shot in this first t v s around in state court and there are a lot of issues that require us to unpack the a d p a and deference and things of that nature but there's one issue that does require that there's one issue that requires that allows us to get to  of lying in wait and how do we know that the first degree murder hinges on lying in a way we know it from the verdict the companion verdict in this case which says that the state did not meet its burden to prove malice premeditation or deliberation we know it's from the jury's question the jury's question at the end of the case is do we have to find lying in wait do we have to find malice do we have to find premeditation do we have to find deliberation all together are one of those instruction on attempted murder thing thank you to now you know there's some tension in that but this is an issue of what is california law lawyers on lying in wait we are we are bound to accept their determination we've elsewhere in the brief in our request to expand the certificate of appeal ability we've really asked this court to take a hard look at that lying in wait instruction in light of the very particular evidence in this case and we have something a companion verdict that we never really have in most cases and it really illustrates what's wrong what's unconstitutional about that instruction but for my purposes we don't have to reach that  a state construction of its own statute is so reasonable that it violates federal law and we get slapped down i understand that and that's not a certified issue in this case and we don't even have to reach that issue of what we really don't have to reach that issue because in this is brian schiff this testimony that he saw mr adams circling in the dark which by the way we have a state appellate court finding fact it's obviously incorrect i think responded even admits it's incorrect as to the approach but  he was heading more directly there however don't those statements are they inconsistent with him having them back behind his back  element of the lying in wait instructions but that's not substantial period of watching and waiting and that's what that's what that's where it's gets confused and that's where the briefing gets confused and also there's dispute about that testimony necessarily if you look at mr osborne when he pulls the bag out somewhat earlier but the concealment of the bat is not does not establish lying in a way not by any means but that's not what the that's not what the jury heard the judge and that's not what the prosecutor summed up to the adams go from point a to point b and those never get up never get brought to the jury instead of what the jury hears is from danny i was born in and and the eyewitness mcdonald i believe her name is par he would not have been convicted of first degree murder he would have been convicted of manslaughter or second degree murder conviction that's correct that's correct which is an exact thing that counsel did or didn't do that evidence on lying in a way failing to win that testimony from chips came out for statements the chip gave that were inconsistent with that testimony and including one in which he says he did see the route and which comes out at the preliminary hearing but counsel doesn't know how to not only did he not see the assault he didn't see the approach he should have been peached him with his statement to detective lawson where he says on the witness stand he says well i had a traumatic memory problem and i didn't remember it from two for about a month later he should that and so this court can take into consideration all of these facts and and should under heim's and so the question is whether or not that's that's performance that falls below the standard of care and it's and it's trial attorney one on one this  says that i'm not familiar with it it's if it's an impeachment of a witness on a critical issue that goes to the heart of the state's case that that an impeachment by pietschmann i mean not just confronting chips with this prior statements but listening the statements of that standard to two to a similar don't have to be identical but it should be something having to do with impeach right for the contrary to problem we do have to have that kind of similarity with with supreme court precedent for the only reason the application problem we do not we look at what were the reasons for counsel's actions and whether or not the result would have been different had counsel not undertaken those actions or admissions and that's a standard analysis that we do in every context if we have to have a case directly on point that says if lying in wait evidence them and i'm not saying you have to have them there and the supreme court precedent applying strict one to a failure to impeach a witness on the stand in trial counsel's got to drop counsel never investigate the informants and never present any of the evidence that the that would have impeached that informants credibility and i think that there are all those cases and i want to move on a little bit to the other in other areas of counsels in effect in this because i think it does tie in very closely to this because counsel admits that he doesn't know how to get evidence in this case he admits that he didn't know how to get evidence of intoxication and in this case he's got the witnesses they have in their hands literally in their hands the impeachment evidence and he doesn't ask the questions about it so the jury is left with the idea that perhaps mr adams only drank six beers that night which by the way when you can find with a blunder for patel concerning to tell what counsel tells patel the night before the evidence a trial is ten to twelve beers and everybody's looking around the courtroom saying ten to twelve beers where that come from and baseball is estimates on that well when you combine those two you understand where his intoxication defense fell apart now intoxication doesn't necessarily have have to negate premeditation deliberation or me malice in this case because it's a warning in a way case so intoxication really that's what the that's what the prosecution summed up to which was we have an implied malice verdict here we have implied malice and we have lying in wait well  people also made up of story afterwards like a story or a false story about a third party is saying so i thought that the state appellate court they did not rely on mel on that on that evidence because those those instances are entirely consistent with somebody who is intoxicated going grabbing a weapon and bringing it back and hitting somebody in the head is not inconsistent with being intoxicated and neither is giving a why did the police all the boys lie to the police that night they all did and they all intoxicated while they were on did argue intoxication a sign just as i understand the dispute was whether they purchased what six there's only there's only two twelve packs here which means six beers for mr adams and the impeachment that could have been offered in that context was not only the impeachment of the witnesses that went south but you know if he had bothered to talk to his client about it with mr with dr patel or anybody else for that matter there might have been testimony saying that it actually means something in the prosecutor was was right that it doesn't there's no testimony that it actually means anything and evidence there was there was very little evidence actually when you look at the record in my time i want to reserve some time for rebuttal but i think there's very little evidence of that because all the evidence is consistent with him having been intoxicated and and the only thing he the court the roof right from respondent is on the lying in wait issue i have a few comments first of all i don't think it's clear that that was in fact the theory a first degree murder that the jury  prosecutor also argue that it could be premeditation and deliberation and as far as i can tell there's nothing in the record that indicates that that was in fact the theory that they used to think they rejected the attempted correct  the california court of appeal found that the jury instruction given in this case with a correct statement of the law and that says that mine and weight is a way to and watching for an opportune time to act together with a concealment by ambush or some other secret designed to take the other person by surprise even though the victim is aware of the murders present the lying in wait need not continue for any particular period of time provided that its duration is such as to show a state of mind equivalent to premeditation or deliberation and the california supreme court now this is actually in our district court brief because the lying and weight issue per se is not certified for appeal but the california supreme court has said that they've never required a certain minimum period of time for the watching and waiting and they reject that there has to be some kind of heart is a literal what weighting before acting as a two literal interpretation of that statute so in this case even assuming as i said that he just rocked directly to the victims instead of sweeping around he approached in the dark he saw that the victims were there with their backs to him and couldn't see him approach he saw that that was an opportune time to  approach them he walked toward them with the bat concealed either either behind his back or under his jacket there was there was there was testimony as to both and then he totally surprised them from behind in a classic ambush so it's our position that even if that was the sole testimony that would be sufficient for lying in wait finding but on the performance prong the attorney was not actually as effective as counsel would have it he did impeach jeffs this isn't the excerpts of record one fifty eight and he asked mr jeffs i want to go back to your interview with detective lost and do you recall telling him that you couldn't even see allen walk up that you just heard a crack in the guy hit the ground and he says that there are things that he that he's actually remembering it better now than he did at the time and he also impeaches him with his statement to detective lawson that he didn't see him approach at all and he makes the point that his memory would have been better closer in time to the incident then much later and then the attorney uses that inconsistency in his closing argument to make the point that mr chips his trial and the statements they had that they had made previously and i think if you just look closely at the previous statements and the trial statements you'll see that there was actually no inconsistency so when you put that all together possibly the attorney could believed on the claims about the intoxication and how much beer was purchased and the effectiveness of the intoxication expert all of that boils down to was he sufficiently intoxicated to the mental state that required for first degree murder and the one thing that nobody could get around was his contemporaneous actions at the time of the crime immediately after swinging the bat and hitting the two  victims somebody one called nine one one during that time then they came very very shortly after during that time he came up with this story that it was some third person he said where they came from behind the parked cars he described to the officers but this person was supposedly wearing a starter racing jacket he said it was a white male and then he said he ran off toward the safeway so he he very quickly and contemporaneously concocted this detailed story about a third person and no mental health expert could refute that evidence that he in fact had the sufficient mental state even though he was drunk he wasn't so intoxicated that he couldn't form the content or have the other mental states because of this contemporary evidence  causing them harm and third that he needed to direct attention away from himself in an effort to avoid that trouble those initial steps are evidence of the defendant's capacity at or near the time of the assault since the clay now appears to be that he did not have the mental ability old classic joke that nobody was driving the officer all of that it was it was a rather strange story that it might not have been a very good story i agree with you on that but that's not the issue the issue is whether he could come up with this story immediately and in such detail to that there was expert testimony that you know i'm saying that that is the kind of testimony that the kind of evidence that no unfortunate past correct correct but what i'm saying is even if you had a mental health expert who had no impeachment who was why didn't the driven snow and could give that testimony very clearly he couldn't get around that  use or mental disability even though later on there was evidence that that the defendant had psychosis and brain damage but that because at the time of the crime he immediately realized that he had to cover up the evidence of the murder by burning clothing cleaning out the car and destroying a knife that evidence wouldn't have persuaded the jury but what about the sheriff's the sheriff had arrested many many people for public intoxication before and he was the person that was right there at the scene shortly after i didn't think was within twelve minutes he agreed that and was intoxicated but he didn't think he was so intoxicated to justify an arrest for us to forty seven deaths and then just two hours after the crime  story on the question of whether there were three twelve packs of beer versus two i think everyone was surprised at trial by the two boys who said that that it was two instead of three but they said they were certain it was t and in fact brant seaman he's the fourteen year old who wasn't drunk that night he just drank one beer and then went to bed he said at trial that he was sure that they got to and mr flower the defense attorney did impeach him with evidence  at trial but the final well there was also evidence that he did drink these higher numbers david razor testified that everyone drank eight beers each brain testified that they drank nine to twelve years so the fact that there was this surprise testimony from some of the people that it was to instead of three ultimately didn't make that much difference to the final question of how that that beer affected him and as i said i think it's clear wrote a letter to the judge subsequently where he said he had been drinking since he was twelve and he drank as often as occurred and he drank to get drunk he says often has he could so he clearly was the kind of person who could have built up a tolerance and even by the time he was herself i think and i think that dr patel mentioned that there was evidence that he had had this cranberry drink he i don't think the doctor counted that in his calculations because he didn't have corroboration for it but he still came up with these very high levels of blood alcohol content based on what he did have so the jury had that evidence in front of them they understood that intoxication was one of the defenses but again they couldn't get you know your honor when i look at this case and hear the arguments of counsel relying yet again on chips this testimony of the approach in the dark for lying in wait and yet again more evidence that it was prejudicial not to get it in the prosecution never said that it was lying in wait because he concealed the bat behind his back the prosecution said it was lying in a way because of chips his testimony chips his testimony is the only thing that stablish has any period of watching and waiting for any opportunity time to act the idea that he came up with this statement very quickly after the after the after the incident is not is not clear from the record at all in fact chips testifies that the group gets together after the incident and is talking about their story and then and the officer doesn't come until until some time later the pretrial hearing that was identified by counsel where the court says it could be evidence yes it could be evidence that he came up with the story but as the facts played out it's not very significant evidence to tell with never impeached by the prosecution with these facts he was never asked by the prosecution don't these facts militate against the intoxication defense the district court of appeals fell through the intoxication defense was a viable defense they said it in fact the jury might have the jury believed hofmann is a great example of of the kinds of acts that you look at when you're looking at whether or not intoxication defense can apply look at all the things that were done in hawk when compared to this case obviously hoffman had an a mental state and no mental state issue no arrest for public intoxication it would have been illegal to arrest him for public intoxication at that point because you have to have and you can't just arrest somebody for being intoxicated in public it's against the law and the pew testimony six or seven hours later showed why patel's estimates are wrong so wh