good morning please the court my name is bill kershner i represent dennis johnson who's the defendant and the appellant in this case i'm going to attempt to preserve three minutes of my time five can for rebuttal this morning i'd like to address the first issue in the briefs and that is the issue that has to do with the question that was sent out by the jury in this case if there's any time left i'd also like to address the second issue concerns here same question because of questions about that very issue yes were written instructions given to the jury and then allowed them to take that into the jury room for deliberations that allowed them to take in the jury room during deliberations did the jury have a copy of the judge's instructions ye was a person who had just crossed the border illegally and was in the street johnson's custody at the time the only contested issue in this case was whether she had given consent for this act to take place mr johnson testified in fact she had not only had she given consent but that it was her idea she talked him into it because of my a claim that she had never given consent all of the facts were presented to the jury the jury retired and as i say about two hours after the jury retired they sent out the question and the question is is someone in custody a law enforcement officer able to get consent under the law now the defense requested that that be answered in the affirmative yes a person can give consent there is no statute that prevents that the defense request or the the state requested that the jury simply be referred back to the instructions that had already been given and the court agreed with the state i think the case i do think the borne by case is distinguishable because the jury instruction in that case was around so that certainly is a distinction but the principle is clear that a person who is accused of a crime is entitled to a jury that understands the law that is not apt that is not functioning on a misapprehension of the law now if as i say i think the jury question here showed that they were certainly confused on the issue of whether a person ma give consent and i think it's ironic that that's the one issue that i believe both parties agree on at this stage in the proceedings now admitted really the state's position is only tacitly conceded in their brief they have not directly conceded that but i think that both parties appear to agree that there is no law that categorically present prevents a person from giving consent when they are in the custody of a law enforcement officer the state says  instructions that you've cited really don't answer that question and i think the only one that many be seen the answer that question is number two thirty eight in number two thirty eight the court hears two the immediate or threatened use of force and the second one is when the victim expresses non consent verbal but that important point is that it is prefaced by the word include and the word includes has been specifically held by the earth from a court of appeals and i'm referring out of the whip we're case that is cited in the br to be a term of the nwo argument which conveys the idea that hundred which does not fall within the list of behavior may also violate the statute now what's happened here is that this first item in  non consent it told the jury that in order to find non consent you must find only this one way that the judge then incorporated it into this tense and this prefaced by the word includes what that does is it makes it a non exclusive it makes a list where the jury looks back and says well includes a desk and it includes that but you're not telling me whether also includes this other thing and i think this other thing this other thing which would be the fact that a person is in custody also prevents consent i think common sense tells you that there are other items that are on this list that are not included or i'm sorry that are included here for instance if a person had sexual relations with somebody who was passed out or under the influence of drugs is that not without consent clearly there are items that are on this list or that should be on this list that the judge has not included on there and what's happened is that the jury has come up with another item that is obviously on this list and by referring them back to a non exclusive list you haven't answered the question and the mr johnson was entitled to any answer to the question i think asking for another inclusion about without consent you're asking for a different instruction you're asking for an instruction and that's with the consent includes a situation where a person is in custody depending on the circumstances you're not asking for i'm just an additional example of without consent i don't think that's the instruction that was requested to tell them that with consent means that a person is is in custody  is it possible when someone has a question that's what you want it is possible or another way of phrasing that would be to say that there's no law that category prevents a person from giving consent that's what the defense requested in this case and i think it really goes to the question that was asked by the jury tells us a couple of things one thing it tells us is that one or more of these germs must have felt that a person who is in the custody of a law enforcement officer simply can't give legal consent no matter how free no matter how voluntary their consent is that it is in operative under the law to try to file but could not in this record it was given to us here the prosecution argued that in the closing no the prosecution in our closing i would concede that the prosecution does make the argument on appeal that the defense argued to the contrary that defense argument somehow told the jurors that the fent that consent was possible for a person who is in custody you won't find that in the record are at least i haven't been able to find that in the record i believe what the state's doing is extrapolating from the defense argument to try to show that but the defense never said to the jurors a person who is in custody of a police officer can give consent that was never done and i think that that distinguishes this case from the weeks case that you've asked us to talk about in the weeks case  the supreme court noted that the defense attorney in closing argument did specifically talk to the jury about the issue in that case in that case the issue it was a death penalty case and the  jury had decided that there was at least one aggravating factor and they sent out a question and asked if we found one aggravating factor do we have to impose the death penalty or may we impose life and the court as here referred them back  instructions but in that case the defense counsel had specifically argued to the jurors if you find two aggravating factors you can still give my client why that didn't happen here there's also another distinction that i think paragraph here you have to page through this trying to figure out which of these instructions may or may not answer the question secondly in that case they referred the jurors back to a constitutionally sufficient instruction  instruction that answered the question that's that's the big distinction between this and weeks case if you refer them back to an instruction that answers their question that insufficient now you just said two different things constitutionally sufficient instruction yes they can stand instruction that answers their question are you arguing that these instructions are constitutionally insufficient no what i'm saying is in that case the instruction answered their question  and the supreme court specifically held that on the basis of the fact that it had been challenged before and found by that court to be constitutionally sufficient thereby implying that that question was sufficiently answered by the instruction whereas here you've got an instruction that is ambiguous it says it includes factors in pain it doesn't tell the jury it includes only factors a and b and it essentially invites the jurors to speculate that perhaps it includes other things error and in the state's brief i guess at the time the state wrote its reach the girls in the case didn't exist so they're certainly not at fault for for on the site that but basically the states are twenty  admitted the fact that an act of place but the only evidence to the non consent was missing miles word and there was contrary evidence from mr johnson now miss on why as word was not without some problems in this case she had been dishonest and committed a number of acts that led a jury to probably have some doubt about her word that started first when she crossed the border illegally she then gave dishonest names when she gave her name to the police officer she gave them a false name later when she talked with each and king she told agent king that no sex act had occurred now that she said that precisely or did she some simply not talk about a sex act no she told agent cain that the border patrol officer had tried her to convince her to take off some of her clothing but that she had refused to do so so she was impeached by a number of statements that she had given before that were not true in addition to that when mr maya was released from mr johnson's custody to the border patrol's are the mexican customs station she appeared there she was not upset she seemed to be perfectly fine now i'm not trying to argue the facts see what i'm trying to say is that a jury could reasonably conclude that there's a reasonable doubt because something upon those things it's not clear that the evidence was overwhelming here not only that but we know that this jury or strong to say we know but we have a very very good indication that at least one or more of these jurors had a reasonable doubt about her testimony and that is because they wouldn't have asked yes question if they had believed her testimony i believe everything that there's a mind set and i disbelieve everything that mr johnson said there's no way you could get this question particularly after a couple of hours of deliberation this is not just an idle speculation by a jury who perhaps wanted to always wanted to know this question or something this is a question by jurors that indicates that at least one or more of them is troubled by her testimony and is teetering on the balance and they've come up with a novel theory here as to how a person can never give consent when they are in the custody of a law enforcement officer now the beardsley case specifically talks about harmless error and the error here is very distinguish beardsley if you look at the jury question it's frankly i have to admit it was very difficult for me to figure out exactly where the jury was going with that question in that case the question was something to the effect of when the instructions say first degree murder are they talking about just the defendant's actions or are they talking about the murder as a whole i don't know where that instruction was going and the california supreme court had trouble figuring it out and in this cour opinion they cite the california supreme court is saying well the failure to answer that really appeared to prejudice the prosecution more than the defense so that's one reason that it was harmless error in that case that doesn't exist here the error here is clearly prejudicial to the defense and to the defense only but the beardsley case does give us a test a test that should be applied and that is that reversal is required only when the jury expressed actual confusion about a law that's exactly what happened here this jury's question was clearly a question only of law in the question itself it sends is a person in the custody of law enforcement officer able to give consent under normal secondly it clearly shows the jurors confusion at least one or more of these jurors must have thought that perhaps a person in custody can never give legal consent as i say just as perhaps a minor can ever give legal consent because this was so vital to the defense theory of the case the court abused its discretion by not answering this jury question something that completely undercut the entire jury case the jury could have said i believe everything that mr johnson said i believe in nothing that isn't my assent and i still believe i have to vote to convict because of persons concerned if they are in custody is legally an operative and if that happened in this case mr johnson was completely deprived of his right to a fair trial i would leave this court on this issue at least with the words from the escobar give right case in which the court said the jury is not free to conjure up the law for itself permitting a defendant to offer a defense is of little value if the jury is not informed the defense if it is believed or if it helps to create a reasonable doubt in the jury's mind will entitle the defendant to the judgment of a al that's exactly what happened here and reversal is required on that for that reason i think i only have three other side and then we'll have a little time for a vital thank you very much thank you morning may please the court my name is david flanagan and i'm an assistant united states attorney from tucson arizona i represent the state of arizona as a specially special deputy county attorney in this case there are certain facts that deal with non consent that are absolutely not disputed at all number one that the victim was naked balland and crying during the act that she had been the prisoner of the defendant for about six hours that he had taken her out to the scene of the rape or of the of the acts in this case a remote desert location in the back of his van or in the back of a sedan a caged area that he had a that he was in uniform that he searched her clothing before the act and that she was naked upon her knees before him after that he had deposited her in naco which was a small border town outside of his jurisdiction at the time of trial nevertheless he claimed that she consented to these acts and the jury was fully instructed as to non consent they were instructed that the state had to prove non consent beyond a reasonable doubt and that the state had to prove that in one of two ways either that she verbal or he expressed concern at which the evidence was that she did the defendant just deny that or that the defendant had implied or imposed certain force upon her or a threat of immediate force upon her which would vitiate the non consent these instructions came from the arizona revised jury instructions they the instructions given to the jury were a distillation of the instructions provided by the defense and by the state they were not objected to those particular instructions dealing with the consent by the defendant what happened was that after about two hours of deliberation the jury came out with the instruction with the question someone in the custody of law enforcement officer able to give consent under the law which counsel has characterized as a curiously legal question and i would take exception to that i would submit that simply because the words under the law appear at the end of the question do not convert that into a legal question everything that the jury decides is basically under the law and they decide the facts and in this case it's a mixed question of law and fact the very word itself is someone in custody of a law enforcement officer able the very word evil implies a factual issue is a person physically able to give consent counsel wanted and believes that the air in this case is that the response to that question should have been a categorical yes yes a person is able to give consent under the law i would submit that that is not true that that answer if that were given yes that would have been prejudicial to the state because that's not correct the answer to that is it depends what clearly if someone is in the custody of a law enforcement officer and that officer puts a gun to her head and asks her if she c issue of custody the fact of custody so bringing of the rests upon the situation that any concerns that there would have been becomes absolutely meaningless  what does it have that the rest is that vitiate the consent i mean i can speculate to that but the judge heard the jury to the instructions that were previously given and those instructions were accurate those instructions did answer the question and the judge was quite correct that if he would start answering the question in another way they would start getting more questions because there's a certain line at which you go beyond and the consent is totally then you need to answer that or somehow deal with that confusion my answer to that number one is that this question as i stated earlier simply because it uses or finishes with the words under the law is not indicative that it's truly a legal question counsel says that this is similar to the situation with the jury would submit a question to the effect that are we free to disregard all the instructions of the court and convict the defendant even though we have  grave doubts as to his guilt it's not that kind of situation it's a situation where they're looking at some sort of factual issue but even at that i would submit that by referring the jury to the instructions that were previously get given that does you know fact clear up any confusion that there might have been that those instructions fully and adequately answered the question of the jury do we have a record exactly what the judge said to the jury in response to the question and could guess what our nose in that precise language just wrote a handwritten answer and sent it back in and that's a page one anything that i see there was no instruction or answer the question an open court there was rather less handwritten answer please consider all court our panel says the court found court action was clearly in error the judge responded to a specific jury request with the command to do the best you can coupled with the implication that no further clarification would be forthcoming there to ask some more questions if it hadn't cleared up their their doubts they did have the time they just didn't get that answer and then come back with him immediately as though they believed well under the circumstances of this case it's just impossible for her to have consented anyway what do you say to counsel's point that that if the victim in this case if the jury believed the victim's testimony that she did not give con would have been a very short trial even under the instructions that were given so helpful point is that the only reason anybody would ask that question is that maybe somebody on that jury did not believe the victim and therefore was of the view that they that particular juror was prepared to believe that under the law no one in police custody can give consent at all and therefore the defendant was guilty well then the judge says go back and read the instructions now do the instructions don't really answer that question i would let the instructions do answer the question because not only talking about give verbal non consent they talk about him applying force upon her or the threat of force which she testified that he had threatened to leave her out in the desert if that she if she did not comply but council maybe somebody didn't believe that on account of the other inconsistency he's a counsel claims were played before the jury in her testimony so if that were true then maybe someone on the jury was thinking i don't have to reach the question of whether i believe no victim i'm just honest no one in police custody can get consent well that's that's something that is speculative i would submit just because a jury comes up with a question it's very difficult to try to speculate why they come up with a question they they ask lots of questions all the time and it's would be just as reasonable to consider that they were asking what effect you counsel says that it was just a question of his word against her word and i would submit that that simply is not true i pointed out all of the circumstantial evidence of non to start at the start but there's also the physical evidence of non consent the physical evidence from him that was found on her knees it shows that she was on her knees naked before him and that was transferred to the and in the circumstances any error that there might have been used harmless there were counsel is saying that really it's impossible to find him guilty of kidnapping under the circumstances because she was in his custody and the restraint was valid in any event and i would  another situation like that the rest situation where you have a continuum of restraint upon the victim and you can do a certain point where he has her validly in his custody but he goes beyond a certain line and that valid custody becomes invalid and that legal custody becomes does not lose its legality of that line exactly is in this case i cannot say but i can say that he's way on the other side of that line that he has taken her way outside of his jurisdiction he's taken her beyond north beyond where he picked her up several miles for several hours he had her there and the restraint that he had her under became illegal at that point and therefore he can be found guilty of kidnapping just the same as as the consent me comes vitiated when that arrest becomes heavy enough likewise the restraint upon her becomes illegal at a certain point and he can be convicted of kidnapping and was properly convicted under the law thank you as far as the fourth issue goes i believe that issue is addressed satisfactorily in the briefs my position is on that issue that if the court were to take the case the state's requested interpretation of the statute it was simply not off by the wording in the statute requiring that the custody not be legal capacity and therefore that the charge was wrong on that unless the court wants any further argument on that i'd like to go back to the first and i think there's a number of points the state has made most of what it said is certainly factually accurate although i think there's one perhaps a bit of exaggeration in that is that to say that mr miles crying during this incident  mr johnson admitting it was that he heard a sound that he thought was a cry he said what's wrong and she didn't say anything for which i don't think that's necessarily admitted it was sort of contested at trial and it's important because all of these other factors are factors that really would potentially occur in a case work and sentence given anyway admittedly i think handcuffs is beyond what most people would think of but his rationale being a law enforcement officer was at least a potential explanation for that the state has said that by referring her back to the instruction that says that there's only two ways of giving concern the state has completely failed in much the case of arizona versus johnson is now submitted and we will take a ten minute