good morning your honor it's may please the court john crouch lee appearing from the federal public defender's office on behalf of the honor if i may i'd like to reserve two minutes you have to help keep track of your time i will run your honour's this appeal involves a single issue a single claim and that is your mission of an essential element of first degree attempted murder from the instructions given to the jury in mr tibbs case that element was the actually three elements willful deliberate and premeditated the state court and the district court essentially found no harm no foul because there was an instruction in connection with another count count one of the counted issue in this case in this appeal of soley the murder which was count two there was an instruction given in connection with count one in the case which gave that definition of willful deliberate premeditated that's what sting wishes first degree murder from second degree murder and first three attempted murder from second degree attempted murder but why wouldn't the jury naturally have carried over that thought because the that the two sets of instructions are very close together and explains that these elements are required for murder and then says also attempted murder you have count one from count two and and we frankly embrace the proposition that the rule the jury jurors do follow instructions very carefully and the judge told them this is quoted in our brief in these two references or in the excerpts that pages one twelve and one one twenty the judge said as a preface to the instructions he said sometimes these become i pod guys in advance some of these will be repetitive the reason for that is we want to have all the information on each one of the instructions even though we may have mentioned it somewhere before later on during the instructions of selves of the jury the judge told the jury that he acted in this specific intent and mental state required are explained in the instruction for that crime or allegation but it also says pay attention to all the instructions on please consider them together correct and that's and that's a perfectly appropriate instruction and the definition that was given in the murder count was the same that it would been and that was correct yes ok it is the same it's a correct instruction but it was not given to the jury and if you look at the it's in the excerpts that pages one twenty seven one twenty eight the instructions are given by counsel the instructions for cow one go through you know the various elements of first degree murder it gives that definition and then it stops or sort of a hard stop and then he goes to count two there is no reference to willful deliberate and premeditated there is nothing there is simply a sense say he's charged with attempted murder and then the very next paragraph goes into a discussion of what constitutes intent so there really is a there's no even the words willful deliberate meditated instructions at least are never mentioned again after the discussion of count one is it not in the verdict for that there were there were some reference to that in the verdict there if there was a reference to it in the verdict form it's not to find in the verdict for one no definition but the phrase premeditated was it isn't the verdict for suggest are essentially over i mean this is at the tail and before the very good right missionary and i'm sorry i thought you were finished with your answer please finish no just that it it's sort of like checking the terms and conditions you know heavily on this california supreme court case but that happened in the bank's case and the california supreme court rejected that as something that somehow backfield or sured the problem with your mission to the instruction in the attempted murder prejudicial in anyway and i guess my problem is i don't necessarily see what's incorrect under the at the standard or unresponsive ball in their discussion yesterday in our briefs we there's really two responses to that number one we argue in this is not necessarily necessary for relief for history to that we argue that the state court when they analyze the prejudice with respect to the missing instruction after their discussion of banks they adopted wholesale their discussion of the let's say the bad facts in the case for mr tibbs from their sufficiency of evidence discussion which proceeded it so essentially they adopted an applied a a jackson versus virginia analysis to a constitutional think that their effort to distinguish banks failed on every single point everything that they were going to something that we can correct it wasn't corrected by the california supreme court who would have every incentive it seems to me to enforce the very recent good morning your honour's may please the court christopher beasley deputy attorney general on behalf of the respondent judge graver you're absolutely correct that the standard of review is the lens through which this case has to be evaluated the question being whether  california court of appeal was unreasonable in its application of federal law and reasonable in its determination of the facts in its application of federal law in reviewing the instructions that were given here the california supreme court recognized that it here yes so the state court of appeal had to determine when it did its determination it applied federal law it recognized that in order to evaluate an instructional error as as claimed in this case that it had to review the instructions as a whole together with the evidence and then how to determine whether the omission of the instruction rendered the trial fundamentally unfair and in addressing that question the court looked at all the instructions and concluded there was nothing that can be in the jury to only consider willfulness premeditation deliberation those definitions that were provided for the murder instruction only to apply to the murder instruction that's the fundamental difference between the banks the  this is elemental the willfulness stuff the willfulness premeditation deliberation but is an element for first degree attempted murder and ultimately what the instruction would give the jury is the definition of that now here the jury was told all allegations must be proven beyond a reasonable doubt the jury was also told as you've observed graber that the jury was to consider all the instructions as a whole and as judge harper pointed out the jury verdict form included the language willfulness and deliberation and the yong that the court at the trial court at the outset had to consider given the jury a reading of the information the charging document to let the jury know these are the allegations so those are some of the fundamental differences between the banks case and this case in banks the defendant wasn't even charged in the indictment with willfulness premeditation deliberation first that it ever came up was on that verdict form and in banks there w explicit language that cabined the willfulness premeditation deliberation to definition to just the murder count nothing like that happened here and so the court of appeal in determining whether this was instructional  whether this rose to the level of a due process violation reasonably applied controlling federal law to conclude that there wasn't a constitutional violation that alone precludes hades relief here but setting that aside even if there had been a violation the court of appeal went on to explain that if there were such a violation it was harmless it was harmless because of the strength of the evidence it was also harmless because of the way th instructions were ultimately presented to the jury that definition was on the same page a judge by be asked you know what was a copy of the instructions given yes they were and on the very self same page defining attempted murder just above it is  definition for the premeditation deliberation and willfulness applying for the for the murder count so all of that together shows that this is harmless the court of appeals decision applying to chapman standard of review was also reasonable there in that it's not true it's not as if they say it and then failed to define it so it's it's completely absent from the jury instructions with respect to the exception of the jury for he said to the jury foreman and again with respect to the jury the jury for the finding either i think the jury either plus a definite well what why would why would that be a reasonable conclusion if they understood that they had to look at that question and they received only one definition and as you can see the correct definition why wouldn't they look at that definition when why wouldn't that be the assumption because they were told to look at all the instructions to know that if they did that they would be not following their instructions and i think that's important they would literally be disregarding the instructions that the judge gave them that they have to look for the definition per per each and common sense you may want to say well ok it said murder this is not a murder charge of that they could have swapped in traded the definitions here and i think that that under the rule that jurors follow instructions and i don't want to say that we have to defy common sense to to reach a judgment relief here because there is ample evidence that this was not a willful deliber premeditated murder under the circumstances which we spelled out in our braves and i won't spend time covering but jurors are told to disregarding the answer that's improperly given they're told to apply hearsay for a particular purpose other than its truth they're told to apply for a for be or in state court eleven zero one the evidence just to show knowledge as opposed to the fact that this guy is done bad things in the past i mean there are all sorts of things that the system requires us to assume that jurors follow instructions for the system to work and i'm submitting to you that that's what happened here the judge made it clear that they could not and of course in the normal course of things you don't want jurors to swap out elements in definitions counsel and you're more than your time and i think we do understand their position that you're advancing so we thank you both for