please the court bradley o'connell representing geraldine darden and i'd like to reserve about three minutes by virtue of this court's expansion of the c e o a there are now three issues in play and steal in light a limited time although i strongly believe that the record compels never venturing hearing i'd like t that it negates an element of murder as was the case with the maine homicide law in money itself then and structures which dilute the prosecution burden of overcoming that ground beyond a reasonable doubt violate due process converses lake if a state such as new york and paterson structures structures the law such that there is some circumstance entirely extraneous from the elements of murder as the find that statute the state the state may permit permissibly allow a lesser burke yeah i of proving absence of heat of passion with you but that's not a full description of the instructional error the instructional errors and well heat of passion becomes relevant for manslaughter only if there is no intent to kill and the problem is that the instructions said that there's an intent to kill requirement before you get manslaughter which is not a heat of passion problem it's a an additional requirement that they put into the instruction that's not present in california law where is there how do i get supreme court case law that tells me that that is a federal error to include in the instruction an element of the offense that's not there because the effect of that  relieve the state of the burden of proving that yes there by to relieve the state of its burden of proving malice aforethought beyond a reasonable doubt because the bike by miss describing these circumstances which negate the element the error is handsome out to a misconstruction on the element itself and interestingly the u s supreme court itself essentially knowledge that point in another case another california case which went through this close to this court littleton versus with the now in middleton versus mcneil involved an error in the imperfect self defense ground for negating malice the agreed with the premise that a miss instruction on a malice negating factor with both due process issue and i think that it's it is a straightforward that in a state court miss describes a circumstance which negates malice that is a due process violation burden of proof watered down it got watered down but just but the instructions specifically say with respect to murder either speed murder that the government must prove all of the elements of the offense and must negate and has the burden of negating heat of passion wasn't there a specific instruction to that effect yes all right so so how is the burden of if it is watered down because a accurate reasonable doubt instruction becomes meaningless if the substantive instructions in accurately describe what it is that the government must prove beyond a reasonable doubt in this case those instructions thin accurately stated that the that the only circumstance in which negate malice would be in the case i mean intentional killing and that concept pervaded the instructions such that it dilutes the prosecution's reasonable doubt burden in the identical way that you would have such there the prosecutor has no burden of proof whatsoever with respect to absence of heat of passion for manslaughter right if i understand you quite your question correctly yes your honor because the instructions assaults luker and wilson threatened to keep gardens there look are edited saying yelling out we care about this block which she says meant fight gloria edwards testified that one of them said we're going to blow up your mother's house multiple witnesses testified to darden reacting to such add to our one describes it so we have this series of threats including the one which really touched a live wire which is the threat to blow up her mother's house i submit that many many people under those circumstances would react rationally and without deliberation and reflection and that's what and that was the question that heat of passion is ructions posed to the jury well of course i'm whether or not whether they would kill you i don't i think i don't think there's any doubt but what a reasonable jury is very likely to find heat of passion the question is whether or not they would have found implied malice because if they're going to find implied implied malice correct an unintentional killing rather than factional one and the circumstances would provide heat of passion but due to the intent to kill requirement let me cut to the chase in order for the jury to come back with a manslaughter verdict they've got to find heat of passion which i think is really easy to find yesterday but they've also got to find absence of intent to kill that's right that and there's a lot of evidence of intent to kill me she's several feet away she pulls her gun out shooter at point blank range in the neck and she dies and it's pretty hard to argue that there's no intent to kill when you do that your honor i think  points that the most powerful evidence which would otherwise deport him and kill the so called value that remark is evidence which as a state appellate court acknowledged in the context of addressing a different error which is not part of this appeal the jurors apparently found that testimony non credible looking at the mixed birds in particular the the acquittal of first degree as under and a real pressure cooker of a situation in the sort of circumstance that could randomly induce someone to really act quickly and without a lot of thought when the jury finds heat of passion and then wants to look to voluntary manslaughter it has to look to it has to find an intent to kill so our position is is that this really the error here last go here affects the  definition of voluntary manslaughter not heat of passion as the court has pointed out this instruction specifically tell the jury that the people have to prove all the elements of murder and that  find intent to kill so putting that totally relieves the state of the burden on her passion is no right no we don't was agree with that because the instructions that heat of passion tell the jury you cannot find murder heat of passion instructions correctly describe heat of passion and also tell the jury that you cannot find murder if you find heat of passion and that the prosecution has to to prove that the killing did not occur in counsel has pointed this out the only the only way that the last two air could be prejudicial is if it sure it could pine and unintentional killing or did find an unintentional killing but then were confused about the instructions and decided to find murder second degree murder instead of voluntary because that this could could you see that we can you see that one more time the only pretty only possible presence from last go here is when a jury finds an unintentional killing and find malice and that having found an unintentional killing and found malice the jury rather than a quick decides to convict of murder this right right well the problem would be that the last the court found is that the jury could then jack's voluntary manslaughter because they found the killing was unintentional and so they say well we can't find voluntary manslaughter because we haven't  killing and yet we believe that there is this killing occurred in the heat of passion so what do we do we can't go to voluntary because that has an element that we don't find right so what we did well the  again in order to find voluntary manslaughter under the proper instruction what does the jury have to find a jury would have to find heat of passion  passion you don't have malice you can't find murder that the jury would not have gone up to to murder but having said that we also believe that the evidence the evidence in this case is overwhelming that the defendant had intent to kill circumstances the jury would not have found that this was an intentional killing certainly a jury would not have stagg we just can't decide whether she had the intent to kill we believe she acted in the heat of passion  we're going to convict her of murder that simply in these circumstances would not have happened our argument simply given the strength of the evidence of intent to kill no jury no jury would have decided we court recognized these instructions as a whole did mislead the jury exactly exactly the way your honor articulated and this is on at e r ninety one they specifically in instructions in this case and determined darden had not intended to kill it would necessarily have excluded first degree murder involuntary manslaughter the only available verdict for an unintentional killing other than acquittal was implied malice second degree murder so i think the question really doesn't move from the jerde these instructions did mislead the jurors the appropriate prejudiced question is the bright question of whether whether which this court in turn has approved in perth and in purple which is that a reviewing court under the guise of harmless error analysis may not usurp the jury's function and