can lead to a series of analytical errors in an unjust outcome at the center of this case in the statute and r s one ninety four point zero one zero and the precise language i believe is key to how this to decide this case i want to briefly both quote that statute the statute reads that all persons are liable to punishment except those belong to the following classes first children under the age of eight years and second children between the ages of eight years and fourteen years in the absence of clear proof that at the time of committing the act charge against them they knew this wrong phyllis now the defendant elvis was fourteen almost fifteen at the time he shot and killed the victim the district court incorrectly assumed that the statute applied to fourteen year olds i say incorrectly because a person who has reached and passed his fourteenth birthday is no longer between the ages of eight years and fourteen years if you ever make this argument before now your honor what happened in the just answer my question we didn't did you i didn't make the argument about the put the bill of the statute based on the defendant's age what i did do and what i told the court very clearly is that the the no because you didn't make the argument then you're forcing this court to determine whether  nevada supreme court's decision was a reasoned decision whether it was more than a summary decision because the only reason a district court should develop other theories in arguments to support this decision is because the underlying zte decisions were not reason or the underlying decisions were summary and so therefore what you're saying if i understand your argument is the district court was wrong in that it didn't then develop a theory you had not presented before or a theory that you didn't present it in order to support a decision different from the decision it may well allow me to explain what did occur at at the end of aspirin or level at the district court level if you look with me on page eighty three of the expert of record the nevada supreme court there determined fact quote based on the facts of this case the district court did not err in refusing to issue the trial court did not err in disputed l vick's contention that he was entitled to the knowledge of wrongfulness instruction that's on page twenty three of my answering brief which is on which is docket ninety one in the record below so case and that elvis age alone was sufficient evidence required the instruction to be given to him well what is the reason that i worry about this is based on your the government's own idea it seems to me that the government only argues to us that we should evaluate this decision on a harmless error standard and still affirm the decision the government otherwise suggests that the district court should have developed his own theories in arguments to support his decision rather than taking the arguments made to it and making the decision based on that and that the nevada supreme court's decision was therefore wrong now i have precedent that would suggest that the district court should develop other theories in arguments but it's usually if the nevada supreme court has an unreasoned decision or the nevada supreme court has a summary decision where then the district court is permitted to do more than just examine the decision for the arguments made i can't find that here therefore it seems to me that if i can't find it i don't know how i can find the district court erred in not developing other theories in arguments the second point is to go to your second point which is is this harmless error and therefore i'm constrained by those arguments in my in my and i just wanted you to respond certainly gonna well to the extent that the district court was required to develop its own independent argument to the that might support the state courts to the  claim this is a somewhat unusual situation where the in a vast report did provide an explanation for why it denied mr elvis claim but it did not address the specific line of argument which the instruction should have been given and the nevada supreme court as i read its decision did not hold that the statute doesn't apply to someone of this age which is the argument that you just tried to make to us which i don't see anywhere else in the record what the nevada supreme court said was that the statute didn't apply because he didn't put his he p p p argued self defense so the statute wasn't recent relevant and the district court as i understand it you've with me so far jeff district court said no this is an element of the alec's defense and this is a it's is saying that this is the supreme court is saying that this is only comes into play when when it's necessary for the defense and the district court said no it's an richter cases which require hevia scores to conduct an independent review to see if there is any reasonable basis to support that the state you know disagree that the argument was made to the nevada supreme court that this instruction should have been given say with respect to the harmless error analysis what happened here was the district court asked again the wrong question the district court inquired into whether elva quote actually had the capacity to understand what he was truly doing when taking a man's life and that from page thirty four the district court's order and found that the record showed a lack of understanding of the gravity of the actions he committed so what the different court was doing was trying to determine whether alec understood how wrong his actions were in instead of whether he understood that they were wrong and that's that's a big difference where you can end up with a very different outcome in this case either in the but this is really not a sufficiency of the evidence vandar we're not talking about sufficiency of evidence here we're talking about a harmless error correct your honor at the standard you know so therefore it seems as if that if we're talking about a harmless error in the nevada spring court talks about sufficiency of the evidence we've got to change to harmless error and the government asked to prove harmless error beyond a reasonable rionda reasonable doubt wouldn't you agree your honor my understanding is that fairness is the is the the defendant petitioners responsibility to show that there are there was harmless by showing that there was a substantial and injurious effect on the verdict one of the elements go ahead if you had to question the petitioner as the burden or that are you have that burden to show and no reasonable that it's shown by the standard of beyond a reasonable doubt that a reasonable jury could not have found  problem that i worry about here is if i apply instructional error on a harmless beyond a reasonable doubt standard and i suggested one of the elements of the conviction was intent and i'm having a tough time understanding how this instruction could be harmless because it absolutely deals with whether the defendant could have much information here that tells you that elvis understood that that there was there's this really again unmistakable in this case that he understood that killing and robbing the victim was wrong in your briefing you referred to several facts that you say establish that no reasonable i think that no reasonable jury could have concluded that he lacked the capacity to know different the difference being right or wrong you talk about the taking of the vehicle you talk about driving the vehicle interstate you talk about hiding evidence you talk about evading the police and other things with in terms of applying the standard to as to what a reasonable jury would have done is all of that evidence to be reviewed and if so was all of that evidence before the jury yes your honor simple question the evidence before the jury as to the statements made by the by the petitioner being interviewed i think that was part of the record is certainly part of part of our record but i can't answer that question for sure what does it matter if if the statements made during the interview concerning his mother and other things were not presented in the trial can they still be considered in determining what a reasonable jury would have done i soon got in determining what a as to the harmlessness of the air and as grave doubts about whether an error affected the jury substantially and injurious lee the judge must tre as if it did so seems to me that the standard the just record needed to use in this particular situation would you agree i would agree and yet you would suggest that on this record given that standard we could find a harmless fair yes  for the does for the arguments you've already made i guess right because the disregard for this record i believe disregarded this very compelling evidence that elva didn't know the killing and robbing the victim was wrong well if there was also evidence was there not about the earthquake or being are dying i guess or not dying he said well how do you know if there's going to not going to be some big earthquake and i fall in the crack and then i die i mean all of that seems to indicate he wasn't he was an adult for sure he was certainly a teenager certainly with less mental capacity than others and mixed up and mixed up well your honor it is important to remember that these statements should be taken in context of his initial attempts to try to avoid responsibility for his crime to mislead the police officers i gave a false name to the police officer just prior to his his arrest and again this goes to whether he understood all the potential consequences of of of his actions that's not the key question the key question is whether he understood the fairy basic moral concept the killing the shooting the victim for a while but is that the basic question or is the this was instructional air it's got to be harmless beyond reasonable reasonable doubt and if a jury was told he couldn't form intent there was a presumption he could not form the intent and then the government has to go in and show it but the jury doesn't know there's any presumption they don't know that he doesn't have the chance form the intent they don't know all of that that then we could just whitewash this record it was easy to show isn't that the real question rather than you're suggesting he has knowledge or he doesn't have knowledge the question is whether he has the knowledge or not if there's a presumption he doesn't the government has a higher burden even to show knowledge doesn't it yes there's there's that there's a higher burden if if this statute applied in this case and we can't tell what the jury would do if the government had a higher burden as to that knowledge or intent well i think you can and i think you can look at the pool case to make that determination that's the it's a cool tool case is not about instructional error and harmlessness the pool case is about sufficiency of the evidence and we're not here to determining sufficient evidence because on that he would have a he would have a leg up because the evidence was presented and we would suggest that on the sufficiency of the evidence we have to give every benefit out to you here we're not we have to say quite the opposite all your honor if you you know i've cited to the the police so case which does a harmless error analysis of a federal brecht analysis and what they're doing there is they're looking at the record evidence to try and make a determination about instructional error ended up causing a a harmful and injurious effect on the verdict so the evidence is absolutely relevant and should be considered by this court in determining whether this would have made a difference and we've pointed out there is there is compelling unmistakable evidence in this case that alec understood that what he was doing was wrong but his mind was an alternative grounds for the conviction felony murder through robbery i believe so your honor is intent and element of that no we are ok thank you thank you good morning your honor lord tiger give me lori tiger on behalf of peter all back respectfully judge smith you're absolutely right in terms of how this is presented how judge  evaluated it in the district court and what her ruling was i find it interesting that you cited rolo to stand for the proposition that it did rule it was written by judge navarro sitting on a panel trotter and she absolutely knew what she was doing when she took a look at this error and evaluated it appropriately in terms of felony murder and i will judge kronstadt briefly respond to that murder was an alternative in the open murder that was charged against mr elphick although i would point this court's decision or i'm sorry a point to point your attention to jury instructions twenty three and twenty fourth that were given in this trial located at one twenty five and one twenty six within both of those instructions it does state that in order to prove in order to provide prove the commission of first degree murder with specific intent to commit robbery at the time of the killing this is the instruction that was given to the jury the next instruction twenty four states the unlawful killing of a human being whether intentional or unintentional or accidental which occurs during the commission or attempted commission of a crime or a robbery is murder in the first degree when the perpetrator had the specific intent to commit such robbery and i would note that for the record in terms of dealing with a felony murder issue and it and the instructions that were given to the jury at this time for mr elphick i would also point regarding felon point out regarding felony murder that and what this court has reminded the government is that this instruction this presumption was not given to the jury it's a presumption that he had the knowledge at the time of the shooting that he truly knew what he was doing at the time of committing the act and that isn't the presumption the option that did he didn't in that the go but he did exactly that he didn't in the state and i'm sorry in the state to show that he did exactly and the fact remains that that the government didn't have to prove that here and it's critical it's critical in terms of the error and that the district court properly found that there was twenty two fifty forty one error here and that the refusal to give the instruction was not harmless the trial court properly found that there was brecht prejudice here and that the failure to give the instruction had substantial and injurious effect on the verdict as a district court said it would be much easier for the jury to reach the murder murder verdict without the instruction just because they rejected self defense didn't mean that they found clear proof again clear proof is in that instruction that the defendant knew of wrongfulness at his age i take issue with all of the facts that the state has pointed out and i think that again your honour's reference to what was actually presented to the jury in terms of what mr elphick said of the statements is a little bit murky in terms of what they argued there and what was actually presented at trial doesn't matter i'm sorry does it matter in applying the standard i think it does because lies that again you know the fact remains none of this it was an element of the crime and it was not presented to the jury and what  present my question in evaluating whether a reasonable jury could can whether it can be shown beyond by a standard of beyond a reasonable doubt that no reasonable jury would find that the defendant the petitioner lacked a capacity is are we limited to only the evidence that was presented in the trial yes what case says that it's that second question in terms of kids that that's just a fundamental you're limited to the record in terms of a trial record here includes interviews where the where the petitioner said that he had taken out what it was a jury question and so i think a question that should have gone to the jury the jury should have evaluated that d'andre not when i were evaluating a different issue whether a reasonable jury could have so included that's true again i would maintain and i and i'm sorry i can't cite a case for you but i would maintain that promise i would also maintain that there are lots of facts here that are incredibly inconsistent with knowledge of whether or not he appreciated the wrongfulness of of his act at the time of the shooting and that there was clear proof of that and i believe that i laid that out in the in the  briefing what about the fact that he said at one point that he had taken what he was on it taken l s d but later a trial it stipulated he was not under the influence of drugs what about the fact that he concealed the weapon what about the fact that the advaita the police for over twelve hours what about the fact that actually that notwithstanding the question about juvenile detention in california about couldn't that be interpreted  sophistication in the difference and what about the fact that he was so close to being fifty it could be evaluated and goes towards that in terms of his capacity to understand what he was truly doing at the time that he actually took a man's life but again you have to look at what he was thinking at the time that he was committing the act i think that you can you can certainly look to those factors but you also have to look at what he was going through at the time and whether or not he really had the capacity to understand the wrongfulness when he fired that shot and what he testified to when he fired that shot was that he was afraid he was going through all of these things there were all of these negating factors that showed that he didn't appreciate the wrongfulness of his acts he would it would have been so many different things it's just strange that he would have chosen to walk to california when he could have taken his grand his grandfather's car in walk california i mean to the shooting range i'm sorry he didn't walk to the california he drove a car to california he walked fourteen point seven mile walk fourteenth and again that doesn't make sense because he carries a shotgun at the time he had a shotgun at the time of his testimony was that he was attempting he was contemplating suicide he was despondent his mother had told him he was homeless he couldn't come home she'd given his things away all of these things in terms of his appreciating the wrongfulness it doesn't make sense he's completely confused after he does and the shooting happens he's freaked out he has a drive in california t police after you say and evidence of his wrongfulness is that he evaded police he's actually arrested one hundred hundred feet from his mother's home he's he's he wants to talk to the mother who actually threw him out and gave all of those things away that i was fourteen hours after the police began searching for him correct that's correct there was amount of time that he had taken to driven to drive to california as well as the amount of time for his grandfather to say that he was actually missing and so i believe that those hours were somewhat less in terms of that in terms of his his evading the police again it's what a child would do you know and saying making up different different stories as to what happened you know it's rationalize and understand truly what they're doing but to be able to appreciate the wrongfulness and the development of how to react to certain situations which certainly could have been at play here where at the shooting range when this happened you also have to take a look at the fact that it just doesn't make sense that mr of it would've taken the rifle to go to rob someone at a shooting range where presumably everybody who's there has a gun  i mean why in the world would a fourteen year old do that that just doesn't make sense plus take into consideration the fact that and walking those fourteen point seven miles he walked through downtown carson city he walked past the worst twenty four hour where there were people with cars he could have easily stopped and accosted one of them he walked past and an off duty clark i'm sorry clark different county carson city sheriff's officer testified that she saw him out walking at twelve fifty and called it in later he could have a costed all of these people and yet what if what the state says he intended to go to a shooting range to bob someone and get a car why in the world would he do that vs passing all of these other people again appreciating the wrongfulness of his actions he had been in the range with his grandfather he'd been there shooting they said that the gun was worth a lot of money in his head he could determine that he had the capacity to truly to understand what he was truly doing at the time that he was committing the act you agree that during the post miranda warnings there was an interview in which the petitioner denied remembering anything about whether there was a shooting i believe that he did and to be later than say he did remember the shooting and  subsequent interview yes how is that consistent with not knowing the difference between right and wrong remembering the shooting versus understanding the difference between right and wrong so nicely different think well denying the shooting suggests not wanting to take responsibility in the risks associated with it based on a potential knowledge of the seriousness of  however i think in terms of the problem of the instruction not being presented to the jury is that that is a question for the jury to determine and the jury was never allowed to determine that to show whether or not they believe that that did prove that he understood the wrongfulness at the time i think of the killing and in terms of and cool which the government responds to and cites you know to great lengths that it hands it shows everything about not in terms of the statute i would rec to reverse during one of the interviews the petitioner expressed concern about having a weapon with a friend the weapon he had taken taken from the data with a friend in california because the friend was on some sort of probation or parole you recall that and therefore that would be could be a violation of the probation or parole and could lead to this person having problems with law enforcement  revoked russian do you think that bears on understanding the difference between the difference that's at issue here i think so because what you're dealing with is the wrongfulness of taking amounts life well if you understand that your friend may get in trouble for having possession of a firearm is that not reflecting that you know the difference between right and wrong it's understanding the wrongfulness i think it's more than that the difference between right and wrong it's it's the difference between the status to prison knowledge between good and evil that the knowledge distinctly appeared from the evidence presented in front of that of what mr eldrick understood at the time of the killing no further question if we were to disagree with you as to this harmless of this instruction we then move your cross appeal right yeah th you want to argue about that cross appeal i would submit the cross appeal on the briefing i believe that it's fairly extensive i would direct the court's attention to miranda i think that the district court and the nevada supreme court did air and that it was an unreasonable application there and they did reflect that it was a close call in terms of the voluntariness and of the confession and with that i would submit it on the briefing a a rather sophisticated teenage use who drove four hundred fifty miles to california and checked into a hotel who evaded police for fifteen hours just started evidence this is not the actions of a child this is a a rather sophisticated teenager who was engaging in adult activities and understood very well that what he was had done was wrong and with  thank you thank you both for your arguments i appreciate them very much