disability meant that he had the cognitive equivalent equivalent of a ten or eleven year old child which led to several issues in this case however i will be focusing on arguments one dollar and two dollars and if time permits i would like to touch on argument three  first as discussed an argument to the trial court erred in refusing to instruct the jury on nd degree murder the state argues that because a rational trier of fact could find tony guilty of st degree murder error occurred when the court refused a nd degree murder instruction the standard cited by the state is not the cracking under and does not apply here that standard only applies when a defendant challenges the sufficiency of the evidence that action in fact because nd degree murder is a less murder a jury before a jury can address whether secor occurred it must st find all of the elements of st degree murder here the question is whether the defense presented some evidence even slight evidence of self defense self defense become nd degree murder where the defendant believes acting in self defense but his belief was unreasonable in order to obtain the instruction on self defense  establish some evidence of six factors st he must show some evidence that force was threatened against a person the person was not the aggressor the danger of harm was in an imminent excuse me the threat in force w unlawful the person actually in subjectively believed a danger existed that required the use of force applied and the person's beliefs were objective lay reasonable now whether his beliefs were objective lee reasonable  question for the jury and if they found that they were not objectively reasonable that would have led to nd degree murder here at least five factors were present and the six factor was a question for the jury tony testified that he heard gunshots coming from the club area where robbins was and he heard those shots before alan and tony started shooting and before alan opened the door of the car only testified that he feared for his life he can be seen on video shielding his body from behind an s u v or approaching robbins and tony shot robbins to protect tony testify that he shot at robbins to protect himself and his friends there's a baby and also the surveillance video shows that someone may have removed a gun from robin's body additionally there was a blind spot on the video just after robbins turned the corner and before the shooting started the final factor whether tony's belief was reasonable was a question for the jury a defendant only needs to present some evidence of these factors even very slight evidence in the trial court is not to weigh the evidence when determining whether an instruction is justified here the trial court refused to give the self defense or nd degree murder instruction and the court's sole reason seemed to be that tony advanced upon the threat the core indicated that it understood counsel's argument up until tommy left from behind the safety of the s u v where he was shielding himself it was the fact that tony advanced and continued to shoot because the court to deny the request whether tony's actions or beliefs were reasonable was an issue for the jury and the jury alone the law prohibits the trial court from weighing the evidence and prohibits the court from deciding whether his actions were reasonable now the state cites to tony's testimony that he was not scared of robins or that he did not see robins with a gun to argue that he should not have received the instruction a review of the transcripts shows that tony was confused by the link questioning and again he testified that he did hear shots coming from the area where robbins was and he was shooting i think yes your honor may i ask you a question before you go on is it possible for the court to have agree that perhaps there was a reasonable threat against the defendant but then once the defendant left his hiding place behind the car a new issue arises as to whether or not there's kind of a break in that scenario now the words he now does become the aggressor can you do that can you can you link those two or break those too i think that was a question that should have gone to the jury again you know whether his actions were reasonable i think it's one continuous that's occurring here and whether his actions were reasonable throughout that period i think that it's all a question for the jury all mr hampton's defense was required to do was present some evidence even slight evidence and they more than met that burden here and that's why this should have gone to the jury and the jury could have looked at all of the actions the testimony all of the evidence as a whole and apply these six factors and determined the outcome but the court pre decided the issue for the jury again it only has to be slight evidence of self defense and the self defense instruction or nd degree murder instruction must be given even where the evidence is inconsistent conflicting or of doubtful credibility the victim does not actually have to be a threat or possess a weapon or the use of deadly force to be justified it is the defendant's perception of the danger and not the actual major which is dispositive because counsel requested this jury instruction during the jury instruction conference and raised it in a post trial motion this issue was fully preserved and the state has to establish that the instruction error was harmless and obviously it wasn't harmless defense counsel conceded in the opening statements that tony committed the charged act and he told the jury the only issue here is self defense where this was the defense's theory of the whole case tony was indisputably prejudiced by the court's refusal to give a trial counsel conduct at this trial fell below the professional norms and it clearly prejudice tony st even though trial counsel had a pretrial ruling barring part barring the introduction of prior conviction counsel brought into evidence prior convictions and pinning and unproven charges evidence of prior arrests is generally inadmissible and prior convictions are inadmissible to demonstrate propensity because they are to pro reversal now here the state argues that counsel introduced the evidence to take the sting out of the state's cross examination however before trial the court ruled the evidence was too prejudicial and that it did not come in  less if tony testified in less he opened the door to that evidence on pages twenty seven dollars twenty eight cents of the transcript the court explained its ruling and the court explain that because tony was a thirty and affirmative defense of self defense the prejudicial effect outweighed the probative value and the evidence could not be introduced in less tony testified a and opens the door the court even gave example explaining that tony would have to say he had never been in trouble or he would have to say he had the conviction in order to open the door to that evidence thus the state's claim that it could have introduced this on cross examination or impeach tony with it is sin is simply not based on this record this was a serious error because not only did counsel ask about tony's pending an unproven charges as well as his prior convictions but tony counsel also asked tony to explain the details and even prior convictions are admitted counsel's not vehicles using a screwdriver or other tools and even though there was a pretrial ruling barring prior convictions the jury st lowered learned that only had prior convictions during war dear because trial counsel brought it up then at that time the jury was not instructed that it could not consider prior instruction or prior convictions as principi evidence then when tony testified about his prior convictions the jury was not instructed that they could not consider that as propensity evidence it was only at the in of the three day trial the jury was told was that relevant instruction saying you cannot consider those as propensity so trouble trouble with your arguments because they seem almost inconsistent to me where the defense counsel admits there is shooting and that the only issue is self defense and then you argue well ok now we're talking about other crimes while i i understand the law and other crimes and how they're in and it's just seems to me that if you're arguing the instruction why is this relevant i mean silly oh i'm sorry so i saw the instruction argument is argument to an ineffective assistance is are you meant one but my question is we're to presume that this is trial strategy and the supreme court cases can tip the trial strategy if he's already conceding an opening argument your client committed this death and that the only issue is self defense do you mean with respect to bringing in the prior convictions into evidence right well so i think i think the law is clear because prior convictions are so prejudicial there's no reason for counsel to bring th of strategy where you can keep out damaging evidence about your client and you've got a pretrial ruling doing that and where your argument is self defense i think there's no reason for counsel to paint tony as this person with this record when you know and to get into the details even when prior convictions are the missile counsel is not allowed to get into the details of those convictions here for some reason even though  barring this very prejudicial evidence of other crimes some of which were were just pending charges that had never been proven counsel brings it all in even though it has clients credibility was essential here his defense was tony's testimony and because all of that rest because the whole defense rests on tony's testimony to bring this in is incredibly damaging so i can't think of a strategic reason that counsel would do this so you're really arguing that the effect and his credibility on the self defense issue as opposed to a propensity to commit the crime well i think it's both i think the evidence of prior convictions and charges does does  both and again where there's a pretrial rule or ruling barring it there's just no reason to bring it in if you know it's irrelevant to the facts of the case and other crimes evidence is incredibly damaging because the jury is going to think that if you've committed prior crimes you've probably committed these crimes and that's the risk with admitting other crimes evidence and again there was a pretrial ruling where the trial court had found these prior convictions were too prejudicial that's the wording that the trial court used it looked at the prior convictions and found them to prejudicial and bar them from coming into evidence and in spite of that it was trial counsel who brought them in when they were irrelevant and served no purpose they serve no aid to th defense next trial counsel was also ineffective for failing to object when the state repeatedly question janice about whether a gun was taken from robbins after the shooting now witnesses are limited to testifying regarding matters about which they have personal knowledge witnesses can testify about their personal recollection of events of an event but they cannot simply interpret events on a video now here janice invaded the province of the jury because the fifty four dollars separate times without objection the gun was taken from robbins the prejudice here is clear because this is the critical issue there was a blind spot in the video where robbins turned that corner right before the shooting began and whether robbins had a gun and fired the shots that tony heard before alan started shooting it before tony started shooting with a critical component of the defense's theory of the case counsel's arguing self defense and tony testified that he  he heard shots fired from the area where robbins was and janice having not been a witness to the event with a no better position than the journey the jury to determine what was taken from robin's ent from watching the clip on people who exhibit one a the video shows that it could possibly be a gun that was taken from robin this was a very critical point of the defense's case and counsel's failure to object on it and to allow janice to testify four separate times is simply inexcusable and below the norms of professional conduct counsel also felt to object when janice testified that the man who took something from robbins walked toward the pink slip which had medic which had metal detectors this implies that if the man had taken a gun it would have been detected at the pink slip but when watching that video it actually shows the man walks off into the dark alleyway and ceases to be visible it doesn't show him injuring the pink slip or any building and again this invaded the province of the jury counsel also fell to object when janice testified that an unnamed source told janice that the and identified person on the video took cash even though and the court overruled counsel's objections however it is only the one point counsel objects to the hearsay wants but fails to object again counsel did not object when janice testified four separate times that it was a officer it was detective janice right it was there any hearing held prior to his testimony about the video that was conducted outside the presence of the jury  i don't believe there was a hearing about whether he could testify and narrate the video i don't believe that issue was addressed before trial there was a moment where janice before this this testimony occurred there was a moment with the court interrupted the state called them to the bench for a sidebar and said he's this is where we have a problem this is where he's he thing what happened on the video how is he narrating it so that occurs during trial  don't pick up on that hint and then make their appropriate objections later are you and maybe i missed this in each of the briefs but ari you aware of the supreme court case on the silent witness can testify if they if it would aid the jury for example i think that case might have been people versus johnson i might have the case name around right ernst on that case but  if the officer is in no better position than the jury to determine or or to aid them in viewing the video to determine what happened he is not allowed to testify in narrate what occurred on the  o but i thought that day supreme court created a new rule within the dr i'm a silent witness doctor and that there has to be a hearing outside the presen whether it's invading the province the jury and i didn't see that particularly flushed out in the brief and maybe it's not in my notes so i i didn't see it but you aware of that two step process that the court supreme court had decided you know top off the top of my head i'm not from looking at my brief i can see that i have that a video recording may be used as substantive familiar with it off the top of my head but i would be happy to do supplemental briefing if that's something that the court would if that would aid the court in reaching this decision go ahead i don't know that that's that's a good question  so here because janet was in the same position as the jury to view video and determine what happened this issue should have gone to the jury the jury should have been allowed to see that video and interpret what you know whether it will leave that that was a gun that was taken from robbins or not and again the video is not clear it's a dark alley way it's late at night and it's hard to see and it may have been a gun that was taken and again the state's point in bringing this questioning out was to argue that of course it was not a gun and to defeat the self defense claim so obviously this was a critical component of the case and i believe i'm out of time so i  lot of times the state if the defendant testifies can ask questions like have you been in trouble before and things like that if the defendant responds no i haven't then the state can then question about  convictions so it's our position that defense counsel used trial strategy once he realized defendant was going to testify that hey this is probably going to come in and it makes more sense for me to bring it out and have a defendant make everyone aware it looks like he's being more are genuine with the jury when he's saying yes i actually do have this criminal history so to say that he suffered prejudiced as a result of that i think gun defense counsel de attempt to object in various ways hearsay was one way and he had getting overruled so it is reasonable for defense counsel to change if  question is asked again i'm going to be overruled again it would be an exercise in futility to continue to object that doesn't make his actions are reasonable that rise to the level of  been did was to make it easier for the jury to comprehend what was happening they made people's exhibit one and i believe through janice they established that it showed it represented everything that happened that night and the court let it in that way but was there are verbs ample of foundation laying for how the device was set up what kind of recording was prese record i didn't cite them in my brief because that nothing was objected to but they did do where janice testified that he went in and he observed the footage as it was being played by the person that worked and  and bottoms and that they made a recording from that and and everything like that and there was no objection at any point by any counsel that there wasn't a foundation laid that would make and did not follow an objective standard of reasonableness and even even if some of them did which we don't think they did she did not suffer prejudice from the used defense counsel  i said the prior convictions which i addressed janice's testimony and then they discussed the defense counsel's failure to utilize land to get an evidence the imperfect self defense claim and in all of those situations defense counsel acted reasonably was it perfect representation did he get an a plus for his representation of the defendant that's debatable but he definitely acted reasonable nothing in his actions indicated that he wasn't attempting to represent him or challenge the state's evidence some facts that go that cut into the argument the defense counsel acted on reasonable a and not forcing in evidence through wenche of the self defense claim defendant himself testified multiple testified that he never saw any guns on the victim on robins and that he didn't know robin's personal way when they were in the club there was discussion about a stare justified he wasn't afraid of robins and then to watch the surveillance footage you'll see even if you jumps out of the car even if he thinks it here is a shot from the direction where robinson is although he testified he never saw a gu robins he decides to leave the safety of the truck and then go out when there's no more shooting he doesn't hear more shooting coming from robin's direction at that time and then approached robins and continually shooting him and i think that's where the court didn't buy the nd degree murder instruction didn't mean by that it was in self defense because there was a  in the back of the head and that would be where the trial court says i don't buy that at that point robbins was definitely not the aggressor you know the defendant was the aggressor there was no force threatened defend it was no longer an eminent danger he or his friend were in imminent danger and no reasonable person would believe that the force of shooting a gun at someone was necessary at that point so defendant didn't prove any of those and the court didn't abuse it's just fresh and when i said i'm not going to send back a nd or i'm not going to inform the jury of a nd degree murder and struction  t are there any questions at this point i don't think so ok thank you guys thank you very much  on nd degree murder the argument in argument to the state is arguing that the defendant didn't prove any of those factors and that the court didn't buy the defense the nd degree murder argument again the trial court is not allowed to weigh the evidence it's decide whether to give that nd degree murder instruction the trial court is not to sit there and go through each of the factors and determine whether the defendant has proven those factors the state is arguing for a standard that does not apply the standard that applies is only whether the defense introduced some evidence even slight evidence of self and even though there is conflicting testimony or inconsistent evidence the court is still required to give that instruction when there is slight evidence of self defense and i think it's clear that that meant that burden was met here the state is asking this court to apply the burden that applies when a defendant is making a reasonable doubt argument a challenge to the sufficiency of the evidence and that is the wrong standard it does not apply here next with respect to be ineffective assistance claim it cannot conceivably be a trial strategy for a defense counsel to have a pretrial ruling where the court has come forth and said these convictions may not come in because of your self defense that asserting these convictions are too prejudicial to have that ruling and for defense counsel to come in early and tell the jury at during jury selection defendants got prior convictions and then for the trial counsel to get get into the details of that that could not have possibly been trial strategy where the defense whereas all of the defense rested on the credibility of tony's testimony and again even when prior conviction do come in council is not supposed to give answers to the details of bills and council did that here additionally council did not ask that the court instructed the jury at the time that it hurt that evidence that it couldn't use it as propensity evidence so again if the jury did use it as propensity and found that he must have done this crime because he's done other crimes the jury was allowed to think that for three days until the close of the case when it was told hey by the way you can't use this evidence to find him guilty of this crime and again evidence ellen with law is very clear on this point evidence of prior arrests and prior convictions are generally inadmissible because they are too they are too likely to persuade a jury that someone is guilty again the state claimed during oral argument that defense counsel made objections to janice's testimony regarding the gun a review of the transcripts will show that that is not true if you review these transcripts you can see that it was the trial court that was often interrupting questioning to try to aid the defense or to try to get the attention of the defense counsel on a subject and counsel dropped the ball multiple times even detective janice at one point wouldn't answer a question the defense counsel posed to him because detective janice realized it could prejudice the defendant and even the state says on record twice i'm afraid you're going to ask something a detective janice is going to prejudice your client i don't want to miss trial this record shows that counsel acted unreasonably throughout and have a court and the state counsel for the state not interrupted to stop counsel we would have raised a lot more errors there would have been a lot more again counsel acted up unreasonably here and his conduct well below professional norms and these errors were serious and they resulted in prejudice to tony because of this we were some would respectfully request that this court reverse and remain and for a new trial based on arguments one in two or that this court grant the alternative your honor thank you