that may have please the court my name is kristen parks and along with jonathan brown and elizabeth simpson i represent the appellant in this case what this case comes down to is a very basic concept from simmons versus south carolina the state may not create a false dilemma by advancing generalized arguments of future dangerousness while at the same time preventing the defendant from letting the jury know that he will never be released on parole when the state asked the jury to impose the death penalty as it did in this case based on a defendant's future dangerousness due process requires that the defendant not be sentenced to death based on the jury's incorrect misunderstanding of eligibility and mr warren's case the prosecutor argued future dangerousness throughout the closing argument he spoke of warren's habit of an addiction to killing women and asked for example what will inform the jury that mr warren was not eligible for parole the trial court did not add these requests ruling that the buncombe county conviction could be overturned in response to counsel's requests for the instruction the court trial counsel we will not discuss it the simmons court was clear that if there's any chance a jury may mistakenly fear the defendant will be free to kill again this month misunderstanding pervades the deliberations and violates due process once the state made warren's future dangerousness and if you and ask you a question about simmons in simmons the court found specifically that the prosecutors argument implied that the defendant would be let out eventually if the jury didn't recommend the death sentence there was sort of a forward looking appeal to the jury this defendant in the future will get out if you don't impose upon the death penalty and reading i would just tell you i'll go right to my fundamental concern with your argument and reading the prosecutor's argument here it seems to me it's entirely backward looking you should impose the death penalty because of what the defendant did he killed these three women nothing stopped him he didn't take the first chance or the second chance he was given to call it a day but it's all backward looking i didn't see anywhere where the prosecutor said or implied to the jury looking to the future this person might get out and you should make sure that doesn't happen you point me to where the prosecutor said something like that yes your honor there's one specific example on join appendix page seven hundred thirty four in describing the south carolina murder the prosecutor said i contend to you that this  why women carry cellular phones because you never can tell when leslie warren is going to be coming down the road and offering to give you help that's why you need that cell phone so your honor that definitely forward looking and when you when you gave the example of that how many more years before the car murder in other words south carolina murder covered time following that murder but before the grammar i wonder if you read the whole closing argument in context it looks like the prosecutor had about three or four things i don't know i was three or four and clearly devoted each section of the argument to those things and the quotes that you took were from the first thing where he was trying to talk about the moral reprehensible in this of the crime which was deserving of the death penalty and that's when it in the context of that he used the word he needs to be stopped and i assume the man meant he needs to be stopped with the death penalty but because of the context but i share the view that i could not see anywhere  n that he would be on the street to be released or that he was going to be a threat to society if you don't kill him and in the contrast mr warren's counsel didn't say it but he could've said he'll be in prison for the rest of his life and chose not to of course simmons authorized him to do it but anyway that that's my take and i have the same question is a few months ago the supreme court chastising us for not recognizing that and will block that's the timing for me your honor let me try to answer the one part of your question first and that is the issue about whether brought it up your honor in both kelly and schaefer trial counsel did bring up and made comment sort of like you suggested that this person isn't going to brew be released and the supreme court said in both of those cases that's it that's not enough that the trial court has a duty to make sure there's no misunderstanding with the jury that a proper instruction be given but as to your question about whether arguments of future dangerousness were made your honor one one thing that might be helpful with it for this court is to look at what other circuit courts have found arguments of future dangerousness the fifth circuit and hodges specifically found that the state's argument about the risk of giving the defendant another chance to commit a crime was an argument of future dangerousness that's like the statement in this case how many more chances do we give him it's not gosh we shouldn't have given him these chances in the past we wish to get a difference that they were made  context where in this case we need the death penalty how many more chances are you going to give him the death penalty is the only answer in that context you would probably but your honor the state knew that he already had the death penalty he didn't have any more chances so when the state asked the jury how many more chances should we give him the state already knew he didn't have any more chance while you say that because he had the death penalty in buncombe down in here for the third time committing the murder he needs the death penalty that's the face yes your honor that is what the prosecutor was assuming but that's not what the supreme court tells us that it's proper to look at the supreme court specifically rejected that argument and simmons won south carolina made it and said that they would not consider future exigencies so so in simmons in rom to us and then again and went on just talking about what could be said what the prosecutor did say the prosecutor assume that the buncombe county was it gave him up for the chance to murdering the johns this case and so the notion that you say the prosecutor knew we already had the death penalty and the need to argue it in what's been said and i guess i get to my question is should we be telling the state supreme court acted out of the block them and totally unreasonably in reaching that conclusion that's what this court did in richmond your honor in richmond there was one reference to future dangerousness made at the end of the argument in this case your honour's during the prosecutor's closing argument references were made to future dangerous s when the argument began on joint appendix page seven thirty seven hundred thirty two in half the pages half the pages of the closing argument included references to future dangerousness and i do include references to anti social behavior but the third circuit and bronstein found that arguments about anti social behavior because that is something that continues it's fixed it's unchanged is an argument of future dangerousness does it make any difference in this case though that this defendant was not parole ineligible on the present crime at the time that his case was being presented in other words the jury in this case had the option of sentencing him to life not life without parole why isn't that a distinction your honor this court in richmond said that it is not a distinction simmons wench and rom to us all said it's whether he is  eligible on the day he sent and then how do you how do you think that the decision in campbell in with that line of cases are campbell case back in two thousand and six for we talked about functional not allow his judgment to be final because he had just pled guilty the week before campbell said in pinion that it was not contrary to richmond and that the issue with there again was that he was not an eligible for parole he was just functionally and knowledgeable but not legally and eligible for par position do i understand you're right that any time a prosecutor refers in a closing argument to something that might make a person dangerous if that person were released in the future like an anti social personality or a history of violence or three prior murders that's the fission to trigger some in your honor i don't think it is any time the prosecutor mentions it in this argument again on half the pages of the closing argument there was a reference to future dangerousness the context with which the arguments were made in talking about habit addiction propensity things that would not change and we how is this prosecutor supposed  having the actual aggravating factor is a series of prior murders isn't any argument about that somebody who keeps killing people in your mind going to be an argument about future dangerousness well first of all your honor the the prosecutors could have argued just that the horrible circumstances of those crimes but second of all the prosecutor is allowed to make these arguments it's fine for the prosecutor to argue all he wants to that this person is going to be a danger in the future and you should give him death but what the supreme court says is that is it a matter of elemental due process if the prosecutor makes that argument you have to give an instruction but simmons i mean there was an alternative theory in simmons right that just as a matter of amendment law there should always be an instruction is mitigating that a defendant will never see the light of day that it's in eligible for parole that instruction ought to be given in every case that's not the approach the supreme court of the supreme court clearly thought that you could in fact argue a history of prior murders justifies imposition of the death penalty even though the obvious inference from the fact that this person keeps killing people is that if they get out they might do it again i mean the court was not prepared to say in every argument that touches on something that would make somebody a future danger that's sufficient to trigger this requirement of an instruction right not in every argument your honor but the heart of simmons was that parole eligibility mattered to juries the court and simmons cited the history of the do you think it would make sense under simmons if if the rule coming out of think yes thank you could i follow up with one question kelly wouldn't have been necessary would it know you don't know what i'm saying is kelly would not have been necessary if your position about simmons is correct which position your honor your  kelly cleared that up in two thousand and two didn't you're on aren't there was some question following simmons whether that position was correct and kelly then took the position yes if a if there's a fair inference that it could be future dangerousness as well you are entitled to the parole ineligibility instruction and it seems to me that that you're you're cobbling kelly and simmons together without distinguishing the fact that your case came before kelly your honor certainly kelly talked a lot more about the implication of future dangerousness but that language was there in simmons simmons talked about a generalized argument of future dangerous in justice o'connor's concurrent she talked about a prosecutor implying future danger noted he said the prosecutor argues that the defendant will pose a threat to society in the future doesn't that suggest that the state prosecutor strongly implied the defendant would be let out of intially if not given the death penalty and they did use that language strongly implied my understanding was that there were multiple reasons to clear up kelly mainly because south carolina continued to not apply simmons in their case i'm sorry just what we're talking about kelly i thought there's a footnote in kelli saying we are not saying that mere inferences from evidence is enough in this case we have actual argument and that's what we're resting on i mean you're are you arguing that after kelly it's enough that if the jury could infer from the evidence presented by the state that there might be future dangerousness even if the state never argues it that just judge me meyer you hit on the first one which is at the standard that's a difficult standard or treat it lowside if it's a difficult standard and it is it's because it was meant to be it has to be clearly unreasonable here what needs to be clearly on reasonable in the state question of what counts as arguing future dangerousness i can remember the exact language but it's like we are four square within simmons we need you know more than applies in this as in the supreme court held that we can at least look at kelly just to the extent it's an illustration of what simmons meant and it's not that we're not allowed to like turn the page and look at kelly if it is known if it says expressly we are no more than applying symons we can at least look at it to see what simmons meant on smith so do you think cullen overruled wiggins versus smith case where the courts as you can in fact look to a later decided case as an illustration of an earlier announced principle if it's not making any new law i think you know collin just said that what  is the slate that we've got for us and in part you know this goes in some ways to the issue of what did kelly it were not do you know we've got at least two circuits that said that kelly didn't fact brought and sometimes there's you know sided language about implying was that sufficient understanding so there's this question right in kelli about forget argument if it's enough that you can infer it from the evidence does that triggers and as i read kelli it does not actually decide that question but i'm talking about the part of kelly that says when it comes to argument what does it mean to argue future dangerousness but to one side this inference from evidence this is what it looks like i don't understand and goes on to say and this is squarely commanded by simmons this part of the opinion what we're doing here four square with simmons wigan's versus smith says you're allowed to look at cases that post state the state adjudication to the extent they are foursquare within the prior precedent and just work as an illustration of that i'm not sure this matters for this case but i'm just a little nervous about your argument that we can never sort of turn the page and look at another case no i get and i do understand that point from wakens i just think it's difficult to judge what a court does in one thousand nine hundred eight based on clarifying or clarifying statements made in two thousand and two and again i do think it is important that kelly did broaden symons so do you read kell actually hold that inferences from evidence are sufficient to trigger a simmons and not necessarily inferences from the evidence but from argument from argument it's the question is when you see o'connor's spirally opinion which everybody i think is in agreement was the controlling opinion and does a stat which it clearly established law for a purpose o'connor says when the prosecutor and this is her language specifically argues future dangerousness no the only time in her opinion that the word imply comes up is when she said that the prosecutor strongly implied that the defendant would get out of prison and she she emphasized would in her opinion so the question was not whether or not he would be a danger it's whether or not he would actually get out that was where the implication was and both the third circuit and the eleventh circuit have said in terms of just implying dangerousness kelly did broaden that and kelly also clarified one thing that was left unsaid and s evidence can have multiple purposes when arguments can have multiple meanings you know it's not there that things are capable of being said and then onset and two of the justices that joined o'connor's opinion descended on kelly on that very point as well as on the a point about what can be implied from an argument and they said this seems to be an extension perhaps a logical extension but it is an extension of simmons and little agree though that or do you agree that if this case if mr warren's case had been heard after kelly you'd have a problem i'd think again going back to judge namers point i believe judge harris you mention this well it's all backwards looking so i think really this is not so much a future dangerousness argument and at least in terms of was the supreme court reasonable or unreasonable not whether judging goals or this court would view it in the first instance you know looking at the a clean slate did what the judge prosecutor say amount to future dangerousness and i think when you look at it in context you look at actually what was said you know for example the one phrase about how many more chances and it said one two three period so in other words there are no more chances it wasn't future looking i also think it's important to note again you didn't answer my question would you have a problem under kelly if i just case had been after kelly i don't i don't believe so because i you know and maybe that's why getting m down it just seemed really needed that you have to your argument depends on the fact that we're you're looking just at simmons and not that kelly i would submit that even if  warren's appeal was heard in two thousand and three kelly did exist i think the state supreme court still acted reasonably under it and i think that's because if you actually look at what was said look at it in context and it's and it's inherently difficult obviously on the cold record to know what was emphasized tone of voice but what you know we deal with that is we have to in any appeal the problem is that it's thirty four pages of argument the only future looking one that i have that i can find is the statement about what will stop and and similar language that was referenced in the third circuit said you know references to stopping that is actually again kind of backwards looking i don't think that necessarily amounts of future dangerousness but it's a question of was the state supreme court reasonable or unreasonable i suppose if you pull that out and cited you could probably get support for the notion that is forward looking or maybe not so big  but i think your argument is that wendy the prosecutor said that the prosecutor was advocating or the he in the terrible ask the second was the supreme court of north carolina so concluded was it on reasonable including i would agree around and again it's a it is important to look at context it's easy to splice out individual statements from a thirty four page argument and say well this one must be fewer for forward looking this one is implying future dangerousness but there are different themes that came out from the prosecutor's argument and if you cabinet by what they said both before and after i think it is not i don't know why it's so harmful and so tricky that it's a we have the death penalty here or we have life without parole or we have life with parole and the jury that out from the gate you don't have all these oh we have case after case on these arguments and everybody seems to think that the verdicts in the sentence isn't going to hang on those very little words informing the jury and it would have been i'm fairly confident that the evidence was plenty strong that the innocence and the seriousness of this aggravating factor would have probably led to the same thing but i know trial lawyers try to maximize their positions and sometimes they are close to the line that creates appellate review it doesn't energetically during this time period i mean obviously all these issues are still getting fleshed out there is the notion that the south carolina supreme court was sort of adamantly defying in their argument they certainly could have they specifically from the out go did a motion to limit it to keep out any evidence from the jury about this prior bunkum county death sentence they didn't want the jury to hear that and so then it becomes w we've got the prior capital conviction which suffices for the aggravator now the question is as the sentence again this goes back i think though probably the simplest answer for this case is what your honor just said which was unreasonable then it said well we think that a prior unrelated crime can make somebody parole ineligible triggering the simmons and in doing so it spliced together four different opinions from simmons to define clearly established law which u s supreme court since said you can't do that but then it got to brecht and this case is is really on all fours with with the brecht analysis rich in many cases in many situations there are direct similar we've got no remorse attempts to conceal the crimes multiple victims we know that the jury already knew that this person had been convicted of strangling someone to death with their bare hands just as he did to the victim in this case richmond obviously involved other crimes there was great there was murder of children there there is some serious viral brutality in richmond but let's be clear about that but this is this is i would say in many ways just as vile because it's multiple victims over a series of events each time done as sport i mean this is something that this defendant liked he got he got gratification out of it and there was not even necessarily a current that runs that this one person he knew very well one was a casual acquaintance one was a total stranger that just happened to be at the wrong place at the wrong time and ended up tied down in a river something you said about north carolina law present is it under north you know i'm saying what once the district court in this case i'm sorry wants a trial in this case if you don't get a simmons instruction to get it you're saying that it is still as a matter of north carolina law it's ok for the defendant to argue role in eligibility i read the north carolina supreme actually being argued you know so a lot of this discussion about oral ineligibility done at the trial court level went to ok this particular sense it's either death or it's life with parole sentence doesn't apply and we're not going to get into the question of eligibility and instructions because arced are state court precedent says you you can't go there so that's why it's important especially in wake of simmons to listen to the arguments was future dangerousness actually argued to timely object and tend to base your objection on simmons there was no objection to any of these particular passages and notably none of these particular passages that i'm seeing in the brief were actually raised on direct appeal it's been sort of a little bit of a morphing i mean all that was raised on direct appeal was that quote about you know the bible gives us you know tells us to turn its cheek gives a second chances how many more chances but all the quote unquote forward looking arguments no that was actually even raised on direct appeal so i would submit that you could argue simmons but you've got to carefully listen to the arguments and know there was no objection based on future dangerousness they asked for one more time later didn't even get a ruling on it which i would s what it was i know procedural bar procedural default wasn't raised below i kind of inherited this case but the fact is that i think that would have been a waiver in the state supreme court under of me asks a while ago if the defense attorney or for an instruction the court says no is the attorney barred from making the argument himself to the jury i would submit that he could still make the argument he could have i mean i'm just thinking of justice o'connor's formulation of this saying that it could be done by instruction or by attorneys argument to the jury but there is this north carolina overlay in that and and i i suspect if the attorney asked for the instruction the court says i'm not going to give it i don't know if that means you can argue it it seems to me the supreme court suggests that you can argue it now unless the court said you can argue it and that's one other distinct distinction from simmons as justice ginsburg's concurrence pointed out and simmons the defense counsel was specifically prohibited from from argument i'm genuinely confused i so that that your simmons relief can come in one of two forms if symons applies and i get instruction by the court or maybe the court can say well i'm not going to do it but you go ahead and do it but either way it's because you want under simmons you are entitled to inform the jury of this fact but in this case you know under north carolina law the default is you're not entitle to inform the jury of that fact and so once the judge says this isn't a simmons case i don't understand how a defense lawyer can stand up and say well bob that's ok but i'm going to go ahead instruct the jury anyway or i'm going to tell the jury this anyway well i think there's there's two different components of that they could have put on evidence but again chose not to about this prior capital conviction and its import basically that making him pro ineligible and then counsel is allowed to argue anything that's been going with government would not object would not if they did that the government would not say what are you doing under north carolina law it is irrelevant that he is parole ineligible that's what that's what the state supreme court said in this case it is not relevant and i think i mean the government is fine with that if the defense wants to put that on is as evidence it is now the government's position that's fine i'm not sure if that would have been fine or not  you have to follow the law that's operable which is the north carolina law but it is not the question i think so but i think in this case there was not even an attempt to raise the issue and i guess that's my point is that that would have been and then to a sponsor lifted it it's been going on for a long time and now we're here on just this one narrow issue bigger out whether you are not confident in your argument that it's unusual for the government to say go directly or harmless error no it's not that it's not for lack of confidence i think i think there is a clear clear point from the record that future dangerousness was not argue thereby not triggering someone's second question is you know you know we've got the high bar and supreme court keeps emphasizing how high that is to be objectively an reasonable and if we have this kind of debate you have the seven justices of the north carolina supreme court you have a district court that have read it and we hear your argument about that what does it mean it's we're not allowed under that standard as i understand it to make our own call we're supposed to decide whether the state  that you know that that's what i was operating against plus how can harmlessness really be it seems to me from the state's perspective to to have confidence in its conviction and to say that a death penalty in a case in which the death penalty was imposed i think there is plenty of reason be confident here i'm almost out of time but one thing i would point out again just drawing the distinctions between simmons and even if you want to get to kelly is as a clarification clary kelly said defense characteristics made him dangerous so he used the word dangerous richmond so the only way to ensure he doesn't kill again i mean that those are so different and what we've got here and so i would submit that that you are through the red light it please the court your honors this case is similar to richmond because there were arguments of future dangerousness but a difference is that in richmond this court found the dean future dangerous innocent argument was one last thought left with the jury arguments about future dangerousness were scattered throughout the fifth circuit and hodges talked about a lack of remorse as being an argument a future dangerousness and in richmond this court found that the jurors  feeling that they were the next victim was an argument a future dangerousness and if you recall the cell phone argument this is why you need a cell phone because leslie warren might be coming down the road offering your you help sort of give you a chance to respond to what your colleague said does it matter that the cell phone passage and some of these other passages were never brought to the attention of the state courts no your honor the argument was brought to the attention of the state courts  the state courts have the ability to look at the record in the case so it's up to the state board to sort of read the entire thing and see if it can pick out anything that might have warranted a symons instruction even if nobody is arguing that yes your honor this court in richmond found an unreasonable application but judge niemeyer talked about the harmlessness and one of the things that's important to look at in this case was the strength of the mitigation that was presented some of the evidence that supported the medication in this case was the years of psychological evaluations that leslie warren had from the time he was three when he was two years old his father put him in the middle of the piskun how way instead he would be better off dead at at age five his father burned down the family's home and all their belongings and in age fourteen he was hospitalized for a year and a mental institute and tried to hang himself the mitigation in this case was significant and makes the trial court error not giving the simmons instruction not harmless another reason the error was not harmless was the frequency with which these arguments were made in brett one of the things that the court pointed out was that it was an infrequent reference to the defendants post miranda silence and that's why it wasn't harmless and in that case but contrast the fifth circuit and ha just said that there was extensive reliance on future dangerousness in that case your honour's in this case the state over and over time and time again talked about mr warren is in redeemable unrepentant about his pattern of harming people that he was a sociopath with a habit of killing women and a propensity for to commit violent crimes the addiction the habit these are all fixed and unchanged characteristics and after making all these arguments and asking how many more chances we have to give him the state court asked the jury to impose the death penalty that would have been fine that's perfectly acceptable but if the state makes future dangerousness an issue with these arguments not just the evidence presented but the arguments then the trial court is required to give a summons instruction simmons talked at length about the importance of this due process right and talked about how significant parole eligibility is that it's crucial it's central to the jury sentencing decision and it's indisputable irrelevant in north carolina at that time a person convicted of life with the possibility of parole would have been eligible for parole in twenty years the studies cited by the court in simmons show that most juries believe that a person will be let out in seventeen years with a life sentence these were issues where juries were confused about parole eligibility and as i said the heart of the simmons case was the importance of the jury knowing accurate information in making it sentencing determination we know that in north carolina at matters there are several very heinous murders and more north carolina in recent years in which the juries have given a life sentence because they've gotten an instruction that the defendant would never be released in state versus cooper the defendant killed five separate people on separate occasions state versus hartley the defendant killed his mother brother and raped and killed his sister but these cases after the jury received an instruction that the defendant was not perl eligible still chose life without parole your honor the state made a future dangerousness an issue in this case and asked the jury to do something it knew had already been done stop mr warren this was the very scenario that the simmon court and courts as far back as gardner versus florida were the supreme court said that a defendant can't be executed on the basis of information he had no opportunity to deny or explain have tried to prevent as the as the court said to counsel and kelly if the defense lawyer in this case had gone against the judge saying we will not discuss this and argued summons he would have had his head handed to him on the platter that was the court's words and kelly and that wasn't going to happen the court prevented warrant from denying or explaining those arguments this violated warrants due process rights and it wasn't harmless the goal of the supreme court and i think for all of us is the reliability of the sentencing determination and because the mitigation was so strong and because the arguments a future dangerousness were so frequent in this case we can't rely on the sim and the sentencing determination here because the jury did not get an instruction thank  so that's something to be proud of the system will come down a great council proceed next case