morning again john dallas some behalf of donald berry this is a appeal of a denial by the district court of his twenty to fifty four action challenging his conviction for second degree murder mr barr was charged with first degree murder and two felonies assault with a firearm and inflicting corporal injury kind of cohabitant he was can acquitted of first degree murder convicted of second degree murder  both felonies the jury was instructed on the standard for murder including both express and applied malice but it was also erroneously instructed on felony murder in particular with the jury was instructed that if a person causes another's death while committing a felony which isn't dangerous to human life the crime is murder t procedural question i wasn't quite sure from the breeze where the instructions given before the closing arguments i believe they were yes in in this instruction was an error it is clearly it was an error under california law under people v ireland and the merger doctrine because both felonies merged as part of the offense but it's also a violation of clearly because it's stated two things one it says the defendants claimed that the fan is claiming it's a federal constitutional violation and then immediately afterwards used the beyond the reasonable doubt harmless error standard  and so i think that that's a better reading is that it did find federal constitutional lawyer and i think it violates both the principle that due process protection individual upon conviction only upon  the government proving beyond a reasonable doubt each and every element of the offense and also the the principle that under chorale of the california that the conviction violates due process were violates from an and i think that the question here is whether there's a reasonable likelihood that the jury read the instruction as permitting a conviction of murder without the finding of malice lettuce let me assume for the moment a require only if the federal court has grave doubts about whether the trial error a federal law has substantial and injurious factor influence in determining the jury's verdict we're just we're basically talking brec so as i look at this case from a pragmatic point of view putting aside putting aside technicalities of possibility when you look at the other convictions of points on which he was convicted they necessarily find this or that i just want to look at the case what we have here is a woman who has been very severely injured battered and they had with at least two injuries to her head to the bone structure of the head that show genuine one of them i gather baseball sized i think he's lucky to get away with second looks like a first degree murder case to me well i think it was debatable he argued in self defense he also argued im so we have an eyewitness to that but we we do now there was no blood or tissue found on the on the firearm on the shotgun so you know shotgun and that was what something that the prosecutor brought up in the closing argument in arguing for the felony murder instruction let's go back just for a second you're not attacking the verdict of great bodily injury by a fire yes ok you're not attacking this efficiency the evidence to support that are you and not only challenging the murder conviction right and that that the it was not only that they instructed under the felony murder but then the prosecutor twice in the closing argument i'm sure actually told the jury to convict based on that erroneous instruction and that's why it's so harmful that the  the attorney general argues that it was in response to the the defense argument for mr meter manslaughter conviction but it's not really a fair response to say that  well which are you know at this point i'm responding on that on the harmless error question and basically there is no eyewitness testimony very testified that he didn't beat or intended her and then what he did was after she attacked him with a pair scissors and he disarmed her with the scissors he grabbed her here spawn around and pushed her and then later on determine that she was on the on the floor and as a result when she was on the floor that that he was trying to slap her to revive her if you look at it now the jury couldn't believe that story and convicted under the prosecution well in the end the slapping on the face is an assault with bodily injury and and i think that the jury could easily found under that new that theory and that is a improper theory in his his conscious regard of the risk that it was dangerous to human life i'm reserved by me time for about sting members of the panel my name is todd marshall and with the attorney general's office representing the warden here today donald berry bludgeoned laurie wind to death by repeatedly bashing her in the skull with the butt of a shotgun even though he denied his specific conduct we know this occurred because gerry allen saw him with the gun at her head there was a hair on the butt of the gun and themselves could not possibly have occurred via the explanation given by defendant to finish credibility as a result was destroyed by his own testimony he made his defense is unbelievable he just aren't very easily through the scissors the side shoved her sufficiently that she was rendered unconscious and all of his assault of conduct occurred after any possible threat due process allegation and then proceeded to answer the question by only finding a state law there they could have been more artful and included a sentence we find no due process violation but only a state error they didn't do that process violation so the answer at relieving the state of the burden of proof is not of due process is that what you're saying what i'm saying is that this instruction doesn't rise to that level this is a snippet of an instruction it was orphaned from the remainder of  charge on felony murder there was nothing to tell the jury that they could supplant felony murder felony murder wasn't mentioned in the instruction the jury wasn't told whether it would be murder one murder two they would still have to resort to the second point so i agree it is why do you disagree with the second part because the whole of the felony murder theory i want to talk about that yams it's only a part of it i want to talk about that one sentence does that one sentence really of the state of a burden appropriate of the burden of proof  why not it doesn't tell the jury that they can supplant or replace malice in any way no it's just the answer yes if you take it and i fully well you don't take it in isolation is under controlling supreme court authority however i still lot more strath it would seem to me if the prosecutor hadn't picked up on this or that must just slipped into the jury and by some oversight and repeated it twice to the jury that they could convict on a felony murder theory that wasn't in the case i disagree with the characterization to the extent that i contend the facts show that the prosecutor was merely responding to an attempt by the defense attorney to use this instruction in a way that it shouldn't have been yours the defense attorney told the jury well this was only a misdemeanor battery and therefore you can find him guilty only of man the response by the prosecutor was merely a contradiction of that statement and nothing more but the response of the prosecutor strikes me as an erroneous statement of law to the extent that it was a road is that all he clarifies by twice reading the concluding statement which is in that instruction which is in fact the definition of conscious disregard implied malice murder we have not consulted ahead of time as the panel did not discuss this case ahead and i'm so this point i'm speaking only for myself it's up hill work for you to convince me that that instruction was constitutional so if you're going to convince me we're talking harmless error why does this assuming you have to concede of course assuming whether there's a reasonable probability that absent this offending or ambiguous instruction the jury still would have convicted on these facts that's absolutely so and on these facts it's reasonable to conclude that the jury did not try to find felony murder because of the lack murder instructions that would have been required to explain how they would even do that if there was no predicate felony no one very dangerous felony explanation no separate verdict form for felony murder and the prosecutor's theory on this case was first degree his theory was barry injured her badly when he realized the condition that she was in he decided you know what i'm not going to have us be separated i'm going to kill her and quite possibly he was going to kill  yes they show at minimum at an absolute minimum that mr barry consciously disregarded the risk of injury or death by repeatedly bludgeoning wine with a shotgun to the point  story about the use of the gun at first didn't use it at all then maybe he poked her leg with the gun then oh finally admitting when the hairs found on it maybe he used it to n and he says if a person causes another person's death while committing a felony which is dangerous to human life the crime is murder the crime is murder if one juror who might have had some doubts about th context of the entire case that statement is a direct opposition in contradiction to one bottle right that's less than the jury heard given the fact correct that the judge instructed before the closing argument was directly contradictory to what the defense had argued furthermore at the end of reading the instruction the prosecutor read the final sentence twice in for sizing the conscious disregard language and his conclusion of his rebuttal argument the prosecutor asked the jury to return the first degree express murder finding he wasn't arguing a felony murder pitch to the jury he was only telling the jury that it's not what the defense says i just have to disagree with that if i juror that the least i could say is that this is very confusing to me i don't know what they're arguing except i can convict him if he committed this during a felony the jury was truly told innumerable times that m required for murder and it was not required for manslaughter the jury was also told that the statements of counsel are not so long and to the extent that any statement by counsel contradicts anything that the court had said not to follow what the attorney said said that that's the point prosecutors rebuttal argument referred specifically to the court's instruction at the invitation of an opposing counsel and opposing counsel infusing it and erroneous theory into the case case i believe there's authority for the proposition that minor errors by a prosecutor can be excused and overlooked in the context of responding to an improper argument by the defense counsel but this may not be a minor i mean it's a flat misstatement of california law relieving the state of the burden of proving mouse i disagree that it relieves the state of the burden of proving malice the jury wasn't told any of the rest of what they needed to know in order to make that leap they were told any of the remainder of the f the jury might have been properly instructed we wouldn't be talking about this there isn't that right i believe that's a fair statement if that's not in effect what i believe that tactically counsel could have had two bases he was never asked so we get to look at what he might have been motivated by first he used this instruction to his advantage in argument and tried to argue for i meant slaughter result as a result of this instruction and secondarily he might have thought saving a small error for appeal given his view of what it might have harmed him at the time would have been a reasonable interpretation finally the district court made it clear that it was finding no possible prejudice upon overwhelming evidence that we there is no there was no hearing that we should submit first i think that the prosecutor statement of facts way beyond what the state appellate court found if you read its opinion with found there was no evidence that i mean there is no finding that mr barry bludgeoned wind with a shotgun in fact the painting itself says that that there was no one that saw mr barry even hit her with a shotgun who is he was standing over her with a shotgun and there was you didn't see anything i confess when i heard your adversary open up by what happened i regarded that as a hyperbole and overstatement that's the prosecutor's theory of the case but that's not something that the jury explicitly found because the jury was not explicitly asked to find that and that's not something that was said by the california court of appeal right and under the breck standard the question is not whether there would depending on the  or be sufficient evidence to convict mr barry of murder it is whether the error itself was so substantial they would have a substantial influence on the jury in finding for murder rather than a lesser offense or or equating him and it's it's almost to me when the last words from the prosecutor's mouth in the rebuttal are specifically referring to the instruction as the court mentioned and asking the jury to convict on that instruction that's i can't see how that could be more substantially influencing the jury injurious way under  and i also can't fathom a tactical reason for not objecting to that instruction as defense counsel and i don't think it's really the what the way the law of use tactical reasons it's not that you want to save something for an appeal and not make the objection it's it's you you want to win that case and there's no tactful reason to be able to do that ok let me ask this question if i'm not saying the versus your kids now submitted for decision we've got one remaining case cover versus apple and we'll take a short break and we will hear that case on a return