right there don't don't you think that sort of that sort of rule hard and fast no flexibility is sort of against what courts do generally don't we normally look to flexibility because it gives the jury a sense let me let me ask you this you think of a case where the defendant does it want a second degree murder instruction because his self defense claim is so clear and he doesn't want an opportunity for the jury or the trier of fact to compromise he wants it all or nothing and would the state at that point have the right to say no we is clear you have to instruct the jury on the second degree murder whenever self defense is race i think the state has the right to say that i think that in all situations if the defendant in a certain situation where his self henderson so he understood it was written by a justice court for involving a trial judge that is now over a trial judge that like the trial judge here said second degree murder here let me stop you there because that's another curious thing because you know ordinarily courts decide issues based on the facts that are present presented by the case and you don't try always seems to follow one always seems to follow the other but in market itself the facts certainly demonstrate that there was one that could have been reasonable belief by the defendant the individual is going for a original point that it's not for us to determine what might have been the reason more reasonable because that is purely a jury question but the defense did argue that perhaps the i jury may have looked at the on the third shot that's subjective believe was on reasonable right but from what you've said so far the jury would basically have to decide it entirely on its own without any argument by defense counsel as to what was really burden on the part of the defendant to me is that if we're talking about factual question of the result by the fire fact you're basically arguing that as a matter of law on the facts in this case line why would your office object to giving a second degree murder instruction in this case what possible harm is it to your office if the jury was instructed on second  there's a lot of possible well let's go let's be clear of the basics that before you can even get the second degree the state has to prove beyond a reasonable doubt that he committed first degree trooper yes so you tell me what the harm is after the state has proven first degree murder beyond reasonable doubt because had the inst jury been instructed on second degree murder in this case there would be the possibility that to be funny could have the defendant managed to pull the gun away from the victim and then use that got him to fire sort of shots in self defense that was the defendant's theory he never suggested that he may have been acting under some mistaken belief as to the nature of the object alleged leaving the victim's head you know that's that's the question i mean so if you never testified to any kind of mistaken belief where's the harm in giving the second degree murder  at the time the supreme court did the magic because it was focused on a very different set of facts it was focused on a situation where there was a question as to the subjective belief of the defendant as the police that he thought that it was a gun but he never stated that he actually saw it was on trial he said it and then that he found it in lockett pulled out his own gun there was a question that isn't present in this case and the question we lock it was whether that the final group had a reasonable subjective belief as to the nature of the object that he set forth in the trial his defense was out the victim had a gun he pulled the gun away from the victim and shot that gun at the victim in self defense so there is only one or did the jury believe the evidence presented by the state if the jury believed the defendant's version of events then it could be what you're saying i what you're saying is that really there is no middle version of the facts either the states or the defendant's pure claim of self defense and i'm happy gun the guy had the gun i took it from who shot him in the course of the struggle but there is that there was a middle ground these cases have to be decided on a case by case basis based on the facts that are presented at trial by the people and the defen know i'm going to get something to force you to leave he goes to the card and pulls out a brown object that the defender believes to be a gun and it's that reasonable belief that he was pulling out a gun that triggered the defendant's actions in suggesting that the defendant was acting under some type of mistaken belief that the victim had a gun it was to defend its theory that he set for that the victim had a gun the victim  attempted to take away the lack of that there has to be some evidence in the record that would warrant an instruction for second degree murder and in this case to trial court properly determined that there wasn't evidence in the record here unlike in market where there was and this case is factually similar to andersen which reached a similar result and also in discretion although at the time you couldn't conceive of certain possibilities it was focused and very different s it would not have affected the outcome of the case the evidence was overwhelming here that the defendant committed murder and not act in self defense aside from the defendant's own statements there is nothing to support that self defense theory he never mention after the shooting dr was asking what happened what happened let's all let's let's let's hunt let me ask you about the condition of the victim at the time that he was discovered if you recall the condition yet that the condition was that the first person to discover a witness driving home discovered a good witness face down head contract where there was a muslim fraction gunshot residue inside a scout suggesting that the defendant was at least one of the shots was shot directly at the back of the victim's had when he was already face down in the paper that in the defendant testified that he didn't shoot him right now the defendant's custom only that he shot him in the top that's correct brings us back to the  his certain way don't we and we always describe them as reasonable and in this case it would be unreasonable to believe the defendant in contrast to every other piece of evidence that yes you're point my original point anyway what was the harm to getting the second degree if the jury was not going to if there was no evidence just to make it out realistic option for them set by the defendant i'm sorry it's not if you were found guilty of second degree it would be appealable except by the defendant and then even then it would be foreclosed because he has her second degree and he can't claim his own here as a basis for the people that certainly would be our yes question that third shot could have possibly created that middle ground which would have potentially why the jury to find a second we've heard this as opposed to first reverse and you can see that the trial judge  you did say that where the facts create the situation represent the middle ground then you should give a second degree instruction even though the facts and walk it may create a middle ground i would i w say that the trial judge should determine whether there is this question of reasonable stand and the fact that the facts of logic are as they are doesn't detract from the fact that it still states when this is a this is a issue of fairness and fairness dictates that the jury in this case should have been given the second degree instruction in order to have the option of rendering a very consistent it's fine for that reason we get