that is specifically because in order to prove that mr condit murdered romesh law with implied malice that is without the specific intent to kill but with disregard of danger to life the state had to prove beyond a reasonable doubt that mr  not acted in the heat of passion to the court's instructions on that point eliminated this mens rea out requirement the court told jurors that heat of passion eliminated malice of forethought and reduced crime to manslaughter only if congress pacifically intended to kill and other words in instances where there is an expressed malice theory court told the jurors there is no malice of forethought if the killings occurred upon a sudden quarrel or heat of passion in order to prove all of terry manslaughter each of the following elements must be proved and one of human being was killed to the killing was unlawful and three the killing was done with the intent to kill meaning with express malice now the government  finding of malice but any rational ger hearing these instructions would have taken them to mean the heat of passion eliminates malice only where the defendant actually intended to kill in this specific case  where there was no intent to kill but the defendant acts with doesn't act it is dangerous to life and disregards the danger to life heat of passion simply doesn't matter that is what this trial court told the jurors in the ca and that's in fact exactly how the prosecutor argued the case the defense during his closing spent ample amount of time arguing two theories one that that mr condit had been unconscious at the time of the killing as a result the result of the severe mr lall he did so not intending to kill but with a disregard for the danger to life and that is the theory that is placed in issue by the court's instructions because in that instance if that were what the jury found that condit had done they were directly told that heat of passion was not part of the case it didn't matter the presence of heat of passion did not reduce the crime from murder to voluntary manslaughter that the government has made a great deal about the fact that the remain again that the remaining instructions corrected this error because in the interim remaining instructions they state that malice is incompatible arpita passion rather is incompatible with malice generally but what those other instructions did not do was specifically addressed this deficient instruction having to do with the implied malice murder language that merely contradicts and does not explain a constitutional constitutionally  heat of passion we cannot tell by looking at the verdict in this case whether in the court found that this had been a killing done with expressive malice and if it had not been dissipated and heat of passion a valid finding admitted lee but on the other hand we can tell if the jurors in fact found that conduct killed mr lall without express malice in other words that he killed them not intentionally but that he killed him disregarding the danger to mr lawless life and it didn't act that that posed a danger to mr law's life and disregarded that danger if that was the finding of the jury then this instruction told jurors the heat of passion it didn't matter because we cannot tell on which theory the jury returned its verdict this is a not only a constitutional error but it's one that mandates reverse a lot of the authority not under a whole not only under o case that condit in fact killed unintentionally but in the heat of passion was indeed expensive extensive there's no doubt the conduct called laws nephew about a missing poster he was he spoke in a normal voice at the time he did so contrary to the attorney general's office he was not angry as shown in r t one sixty eight he spoke in a normal voice he went to at the warehouse was did not bring a gun with him he had a gun in the car unloaded he carried that gun because he often carried cash but when he went to the warehouse was not armed with the gun he confronted mr lawlor and his brother who began to be him up they had a big fist fight victoria short off law went to a nearby business he was without his shirt he told the person in that other business i've been robbed he returned back to the for the warehouse to retrieve his shirt with his checks and his cash he said that he had over one thousand dollars worth of checks and a thousand dollars of cash when he arrives there he's beaten by both lawler and his brother bought her a piece beaten with a pipe he's beaten with a board he's beaten over the head repeatedly with the board he's beaten so so severely and so often that the board breaks and mr law then picks up the the board and continues to be then it's only at that point that mr connor returns to get his gun from the car about twenty yards away loads it comes back and fires four shots one of them hits mr valma head one in the thigh another fired in the car drives back to his warehouse has somebody driving to the hospital he's determined to have had a concussion he's dazed he's bleeding he passes out in fact on the way in the car back to the hospital and by all the shirt that he claimed to have been taken from him during this whole incident is in fact found in law's warehouse inside the shirt more than a thousand dollars worth of checks no cash but the checks indeed had been taken from me and they were in his shirt they had been taken fro any reasonable juror i submit on the basis of that into evidence could find that caught in the kind of committed an unintentional killing but with this regard to the danger of life that he had acted in fact in the heat of passion again this instruction given by the trial court told jurors that heat of passion dissipates malice only in an intentional killing this was not an intentional killing by the account of mr condit as defense attorney there's one final point about that  the government makes good about a minute left if you want to reserve any you can make a point to i'll go very quickly roger one final point made by the government that unconsciousness was absolutely contradictory to the theory that it was an unintentional killing but the what the prosecutor but that instruction by itself doesn't constitute a constitutional error in fact that instruction by itself doesn't even rise to the level of a cognizable federal question under this court's precedents errors in the giving of lesser included offense the passion and the gated malice somehow lessen the prosecution's burden of having to prove that heat of passion was not present in this case and we submit that there is no reasonable likelihood the jury could have read those two instruction and come to the conclusion that if we find mr condit acted under heat of passion but did not have an intent to kill we can find second degree murder how does the prosecutor's argument figure into this by my count he argued the wrong instruction ten times he condit testified he couldn't remember anything from the time that he got beat he couldn't remember going back to the car he couldn't remember getting the gun he could remember shooting twice in cross examination he made the statement that i didn't want to kill anybody that's contradictory to not remembering what you've done you can show they don't if they don't buy that then they get to consider whether the lesser included applies correct if they don't buy if they don't buy that there was no intent to kill then the  instruction doesn't come into play because then if they find intent to kill they have to find whether heat of passion exists and therefore voluntary voluntary manslaughter could be returned but if there's no intent to kill the jury finds there's no intent to kill i'm sorry if the jury finds there is an intent to kill i've been misspeaking if the jury finds there's no intent to kill what did they do according as the district court pointed out out they can't return a voluntary manslaughter verdict because they that requires intent to kill so then they go to the second degree murder instruction all or nothing at that point as the district court found the reasonable likelihood here is that the jury's either going to return to voluntary manslaughter instruction or quick they're not going to go up and find a second degree murder verdict when there is heat of passion and they were told specifically in a separate instruction that there cannot be malice if there is earlier when the defense is unconsciousness i couldn't remember anything the jury's not going to take out two statements from cross examination in which he says i didn't want to hurt anybody and except only that part of his testimony in our view you this court should not have a grave doubt that that's what happened here especially when you factor in that there was evidence of intent to kill a shot to the top of the head wilber holds that where the issue of where heat of passion is present in a case the government bears the burden of proving in order to prove murder the absence of heat of passion so this deficient instruction relieve the prosecution of proving implied malice murder it is it removed from prosecution the burden of showing the absence of heat of passion that is why it is not in fact a lesser included offense instruction that is in fact relates to the crime of implied malice murder the facts don't demonstrate actual unconscious by the defendant by the senate it can certainly klein in this case the evidence was his that his consciousness was waxing and waning that was the expert testimony by the defense witnesses that his cock just as may have reached