curry please the court this trial was really just about one question and that was whether mr curry was guilty of assault with intent to commit murder or whether he was guilty of the lesser crime attempted voluntary manslaughter so the only thing that stood that made a difference between those two crime verdicts understood crime was the presence or absence of heat of passion and i'd like to talk this morning about how the prosecutor's statements affected mr curry's defense his only defense that he acted in the heat of passion but first i just wanted to wreck the court to the trial judge's statements when she chose to give that jury instruction because i think it it helped it helps me to describe how important this offense was to mr curry and this was during the instructions conference in trial transcript five volume one document one twenty eight evidence that the jury could reasonably consider as being heat of passion the jury could also reasonably consider as being malice that's why it's a jury question she said also there is more than sufficient evidence of rage that obviously doesn't justify attempting to kill someone but that's not the question the question is was there a heat of passion finally she says one more time after she discusses the evidence a reasonable jury could find her passion i think they could at the same time a reasonable jury can find malice and i think that usually the case and heat of passion he says is that that similar evidence that the government would rely on to argue malice is the same evidence usually i would start with the air and then talk about the harm but the government argues that the evidence was overwhelming in support of malice and i think that the judge's statements help us understand that that same evidence supported the heat of passion defense and that she said there was there's vision evidence to give an instruction set what's on the table at that point you're sure not what not what a jury would decide it's just give the jury this option sure exactly and so i just wanted to start there and mainly because of the press the government's argument with respect to whether or not the prosecutor statements effectiveness or creates substantial rights so let me down back up and talk about some of the there's there's no question the jury instructions were correct they were correctly instructed they were i think they were i certainly have some problems with them we haven't raised any specific instructional claims they weren't given the way the defense wanted them given but i think all the pieces of heat of passion were in there they weren't necessarily in the order that they were requested to be in there so but that's a conditional yes but we're what you're asking us to find that it was plainly erroneous for the court not to find projects through this on dogs in the way that she described jury instructions the elements of passion to the jury correct right so there are two point two categories of misconduct that that kind of where the instructions kind of become important and those are the first she's the one where the prosecutor talked about the order of decision making and said you don't even consider heat of passion until after you've found him a lesser evil you find that him not guilty of count one essentially then there's the other  were good enough or to make sure that we're not slipping around here on what your assertions are right and right let me be clear that the claims are purely misconduct claims and references to the instruction really just have to do with exactly so if we get rid of the prosecutor misconduct there's no standalone instructional there that's right all right just just to be clear on framing the issue there are nine statements that you nine states that's true although i don't think that i don't i did not intend to limit it to simulate if for instance there are some of those i think standing alone could of the nine that was the only one right that was objected to and is in this preserve if we get to looking at the cumulative effect of the nine statements i just want to make sure because just templates asked you if we're looking at plainly  is a plain error review when we look at all the states yes i mean to look i think that and i at kind of walk through what you do whether something is preserved and whether it's not preserved we have that one piece that was preserved and you can look at that decide whether alone it no i just i'm just asking dumb and i hope it's good but if we're taking all of them once we get to the point where we're taking all of his plane air review that's all i'm ask sure yes yes because none of the other ones were preserved yes so under the general concept of zero plus the road equals zero sure in order to get a cumulative error we're going to find some so i think all three categories are equally disturbing in different ways the first category of argument are the arguments that especially during her rebuttal argument when she said only if you find that he didn't plan for months to kill  do you even look at the question of whether there was a heat of passion if you planned this out ahead you find him guilty of count why and that's just wrong that is not the law and that is pretty serious because it does of course directly to the only defense mr curry had so that was extremely prosecutor seeing that correctly described the instruction and then the jury was instructed to hold to rely on the jury instructions you know what why is this a case where the you know usually our gold standard evidence in support of the guilty verdict also supports the guilty verdict on the lesser of verdicts on heat of passion and so it's i think it's actually easier to show an effect on substantial rights in this y defendant would not be able to show plain error here because the statements were not improper as your honor noted the prosecutor when she first started her closing argument she correctly stated the law as to inten to commit murder and explain to the jury and track the language of the jury instructions that the jury had to find the answer reasonable doubt that the government had prove malice and also the absence of heat  would move to voluntary manslaughter which is what she had originally said which was correct in her second order ation then she added the heat of passion or and manslaughter there so so that the during reb misstatement there yonder but viewed in the context of the entire trial and the closing argument more importantly there was no intent to mislead the jury here and in fact well but maybe there was no intent but the words or the words and the jury's going to hear them and the defense didn't get a chance to rebut them and so why wouldn't the correct analysis be this is improper now let's misconduct misconduct consists of number one the improper statement and then if it is improper number two whether it influenced the jury's verdict and the two of them together as i understand it define what is prosecutorial misconduct why hasn't the that the defense the pellon satisfied step one why isn't the argument now about step t that that's the i mean we've got to decide this case and we're looking to you to help us get there is that the way you get there well i think your honor perhaps the stronger argument is on that second prong the substantial right no effect on substantial right because of all the security of measures here or so we have the jury instructions by the district court judge which were correct there's no dispute it says that which told the jury that the government had to prove beyond a reasonable doubt knowledge and that that includes also proving beyond a reasonable doubt the absence of heat of passion the judge made sure that the jury understood that it was the judge who instructed them on the law and nobody else and in fact the prosecutor herself both during her closing and two how do we know that there was no affect on the jury how do we know that in many ways i'm sorry i'm taking a roundabout way to get there i do think part of the prosecutor herself telling the jury you're saying that as long as the instructions are right there's never going to be processed no i'm not saying that that is one of the safeguards that the instruction on this score presumes that a jury follows the instructions given by the court so that's a very strong safeguard against the prosecutor making misstatements and closing argument and moreover the jury is instructed that any statements or arguments by counsel are not evidence but let me turn to here would help no i don't get an answer to my little bit well i thought you were going to start talking about the evidence i am about to turn to that which i pricer just started way which is that the evidence here was overwhelming of malice and also the absence of heat of passion and the evidence showed that months before the defendant attacked lieutenant blanchard and set her on fire a month before he had gotten very angry with her in his office had verbally assaulted her had physically come at her to the point where she thought she was going to have to call curity and they just had this animists and for months before the attack had cell phone records her search of his phone showed he had run four different sources are question asking how quickly somebody would die if their juggler vein worked cut though that was very strong evidence that four months before he attacked her he had been running searches on how to kill somebody and how quickly they would die and moreover even on the day of the attack he had been in her office for a meeting and they were reviewing the report she was correcting some some mistakes that he had made he became very upset at her again verbally abusive toward her she asked him to leave the office and he about point actually invited her to his office so luring her back to his office which lieutenant lancers found very suspicious because he never wanted her in the office moreover later when he changed back shortly after five pm to attacker he had gasoline in a water bottle he had matches on him he had a straight edge razor which after she was on fire and being assisted by other people who tried to attack her with the straight edge razor and then a pair of scissors so all of this evidence together was overwhelming to show that this defendant acted with malice he had a plan he carried out the plan and this was not just a spontaneous rage or fear or passion that overcame him at that moment and so because of this overwhelming evidence together with the jury instructions which were correct and together with the presumption that the jury followed the instructions given by the court that's how we know this court i submit can find the defendant just cannot me the comment about about boxes going up in flames throughout the country and that was the one statement that the defendant did object to at trial so there are you do you agree that was improper no your honor we don't agree with that that was a direct counter to the defense argument that to show heat of passion and all that that requires is that for the ordinary person to lose their temper whereas that is not with the instructions as the instruction says the ordinary person would have to be so provoked and so it places the ordinary person in the defendant's shoes really the found me a defense counsel's argument which was really submitting to the jury that you know any ordinary person would lose their temper but so what i take it what you're saying then is that  as long as it was made in response to defense counsel's argument it was ok well here this court does give wide latitude i understand but but would you agree that it was otherwise a problem because it seems like the only reason it isn't improper is that there was a response to something defense counsel said well i i think it was in response to what defense counsel will seem but also trying to explain to the jury i think just how preposterous defense counsel's argument why well but you're still you're you're still in response response mode but but there are cases that say these broad statements community appeal are not prostitution be making agreed agreed that is what the law says but this i guess we come at it from a different position we don't see this being a statement a call to action or an appeal to lawn order this was a response trying to illustrate the ordinary person would not have been provoked so she's trying to say when a boss corrects you at work or points out the fix tried to help you improve that's not the kind of provocation that would lead somebody to set their supervisor on fire if that were true then that would be happening all over the country so it's actually almost a different a different or opposite approach of you know having to correct a societal wrong that societal wrong just didn't exist in this case and a proper statement it was improper the government's admit that we can show beyond reasonable doubt that it was harmless again because of the strength of the evidence here or there was no  provocation the only provocation here can even be called provocation is just a supervisor trying to work with an employee trying to correct their work trying to improve their work so that provocation would not be something that would incite such a spontaneous reaction that can build and build and build and then happen is what's your view you know i don't i don't know that the case law is clear on that fact i think it's possible but there still have to be a lack of planning or a lack of malice to commit that crime so i think maybe hatred or rage can build up over time but the attack itself the intent to murder would still have to be something that happened just in that instant without prior planning so that for example in this case we showed that the defendant brought tools brought the instruments of his attack to work which shows that he planned this he knew he was going to carry out an attack and three main points i want to make the first one is really important and that is that the government's getting the law wrong even here malice is not premeditation you can have a heat of passion and still have premeditation so i think it helps to think of it kind of  a little bit chronologically first you have a provocation then you form and intent most of us can overcome that that that sense that bad will type us and point but if you have a sufficient provocation and days before she shot her husband in what she claimed with the heat of passion that she might kill her husband and i think when we talk about prejudice just look at last in boston down at the plain or k and lost and found because just as we've been talking up to make is that this argument sure argue the evidence are you there wasn't a heat of passion there wasn't sufficient provocation of the evidence but don't argue that you shouldn't find him guilty of or you should find him guilty of count one because the terrible consequences of finding him not guilty of kill somebody he never said it did in the water that say that either the law says that you passion is a mitigating circumstance and you end up guilty of a very serious crime and those arguments were misleading and they were scary to the jury and one in which my clock is going ok and the question is not whether this court would have found the defendant jury without the prosecutor's misconduct but whether that misconduct affected the jury to the point that they couldn't fairly consider the only