judge fletcher and i would like to reserve about five minutes of time for rebuttal i'd like to take the first two arguments that are in a related and those are the counsel arguments the one argument or the one cla the trial judge asked him whether he wanted who he wanted to withdraw from representing and the counsel said he had no preference and so he represented robinson that was very prejudicial to robinson because  with respect to that your honor let me just say this i think there are a number of things that the arizona supreme court did and that the exceptions to procedural default would apply first of all hand whether fundamental error preserves violation of the right to counsel and i do have a case that deal directly with that issue and supports your argument that fundamental error review preserves which the hearing took place and that was approximately forty two days after the indictment it's in the materials judge but he definitely told the state court that he could not represent both individuals that he discussed the police reports judge i think that's what you're referring to and those police reports were the song and substance of the case against mathers and robinson there were statements made i believe by both robinson and the matters within those police reports but nevertheless i think that's crucial judge to and i think my point is well taken that when the attorney talked to matters he received a confidential communications i mean i don't think there's any other way to look at that because they discuss the case we don't even know we don't know really i mean it just would not be  weighing argument i argue that the arizona supreme court did not do what clemens versus mississippi says a court has to do and that is to consider the mitigation in detail and to consider how that would have affected circumstance so now you had to two of them were very wobbly in mind view first of all the cruel heinous and depressing was especially not there because under arizona law you have to show robinson intended that this woman would suffer undue cruelty as is required to be shown under arizona law in fact the state's theory of the case was that robinson wasn't there to commit murder according to the state that robinson was there to find his ex wife just like he had done when he found her in north hollywood and burst into this individual's burst into the scene with the guns they calculus in under a reasonable probability standard which is not you don't have to strike it down you just have to find that there was a chance a probability that's reasonable and based on the record which it is in right well with respect to those if the f the sentencing the state interviews of hearsay statement of defendant washington in which he described what robinson was doing and and the purpose of the crime and the supreme court of arizona found that that violated robinson's confrontation right so that evidence was out without that evidence i don't think there is any evidence to support the cruel aggravating circumstance is an element of status and versus pennsylvania said that it's an element of capital murder it has to be proved beyond a reasonable doubt and it has to be it's defined by the arizona supreme looks insufficient evidence that she was conscious at the time well and that would be part of of the argument that there was insufficient evidence of cruelty now maybe he didn't set out all of the evidentiary underpinnings o like to see that was done in the record that the court did specifically that the cruelty issue was tied to the intent of the defendant in the arizona supreme court in their opinion they said that the cruelty factor was found so they rejected on the merits the insufficient evidence argument i think i believe in the state p c r record they attempted to argue that again and this is my recollection they attempted to argue it again and the judge  supreme court has already found that right but i don't disagree that there was a finding made that a cruelty argument had been raised but let's issue regarding the defendant's intent be the cruelty aspect  that found to have been exhausted to be honest with the judge i don't think it is in the record but i don't think it has to be because when first of all judge i mean when when i come into a court and say they didn't prove their the fact and the mental state so i think judge really what the district court did was i think he was wrong when he said we recast our argument but i think on the facts in the law that's incorrect simply because hold a new sentencing hearing i think you sent back with with directions to what to do to conduct a new sentencing hearing because here's why if you strike an aggravating circumstance everything's up for grabs again you have to strike the aggravators not just an aggravator but i say you have to strike both aggravators and make the statement improving again because they proved it on inadmissible evidence you can't take that inadmissible evidence out and then say well here's what the court would have to the fundamental error and the miscarriage of justice and the cause and and prejudice i think that preserved it for review and i know the court is going to make a determination of that with respect to the actual conflict issue and what me please court my name is jeff stick i mean assistant attorney general with the arizona attorney general's office i represent the only in this one i have to tell you also speak up i will i will try to do that with respect to an issue that came up during counsel's argument with respect to the aggregate ing factor the six cruelty aggravating factor and whether that was actually raised the transferred intent issue in the august one thousand nine hundred ninety nine district court order the district court judge he didn't understand what it was that the doctor transferred ten once before and the first time and it was just cited the first time well i think there could be different interpretations to what he said it it was sufficient i think if you look at nevius versus summer and other cases that deal with the idea that issues must be fairly presented to the state's highest court before you receive federal review in with that what i can say is when you look at appellants opening brief on direct appeal that issue was not raised he did not argue transferred intent or that he did not have the intent to cause suffering in any of the victim when he says he wasn't there isn't that implicit i don't think that's specific enough under the case law to fairly present that issue do you think you can raise it with respect about that either my recollection is that they did not address the issue of transferred intent with any of the aggravating factors you know they did do an admin thyssen fine and maybe that that is what you're considering has transferred intent but that issue was not raised before the arizona supreme court in a successive petition for post conviction relief he did raise that issue but he did not raise that in his petition for review when he petition the errors of history or on that particular mental anguish can cause cruel says to be mentally anguished also suffering or physical abuse so stupid right and in this case what you have it or you have two arms strangers bursting into the home of two elderly individuals  rousing them from bad at gunpoint tying them up forcing them to lay down on the floor there is no doubt based on the facts that were presented at trial that the victim suffered mental anguish at that point there is also testimony from ralph hill the surviving victim that he when they were laying on the floor down he heard his wife the victim that died indicate or tell the two intruders that she wanted her feet covered up at that point ralph hill testified that he blacked out most likely from the gunshot that he received to the back so it's not clear evidence that ralph hill was the first one shot and there's evidence indicating that sterling hill the victim that died i have so i got to look at the cases where they have found cruelty this one just doesn't seem to be over that that bar i would disagree with that i think there are cases do you have you could go back to two state versus comber to look at cruelty nul might have state versus newell might have dealt with cruelty and i'm trying to think off the top of my head there are so many cases that deal with cruelty and particularly deal with the mental anguish aspect of rule t in this case it's quite clear that the victim did suffer a mental anguish and that mental anguish can start from it indicated was the evidence to show cruelty not only the mental anguish that that happened inside the house but what was connecting robinson was the fact that he actually planned this particular crime he procured the weapons for th and cruelty deals with the state of mind of the victim but what carlson said with the court carlson said was vicarious liability doesn't play out for cruelty unless there was an intent to cause suffering kill but to secure the place and let him steal his wife back or is common law wife that and isn't this just a continuation of that kind of a plot well i think that the evidence in the case certainly showed that there was that type of motive and that type of modus operandi that was occurring in this family is a whole case for the state really all that was one theory that the state put forth in the guilt phase but what you had was a situation where he promised payment to two accomplices to to do this and then he gave them a ruse he washington and mather's his two accomplices th know who the hills were they didn't know where the hills live they had no connection to the hills the only connection they had was through robinson so it really isn't an inconsistent theory when you have those two separate act evidence that came in clearly showed that he had a violent nature with respect to this particular woman susan hill that he was seeking and that played into the motive to go to yuma well i'd like to and indicating that there's no vicarious liability for cruelty in capital cases absent a plan intended or reasonably certain to cause suffering the evidence in this case showed that robinson planned this particular crime the guns were procured for this crime he transported to accomplices under a ruse that they were going to a drug dealer's house and that they could get drugs and money now when you look at whether that type of plan knowing that you're sending two individuals in with guns at eleven forty five at night with two elderly individuals in the home i think it's reasonably certain that you can infer that some type of suffering is going to happen and if you get beyond any procedural bar and look at that and look at state versus carlson i think that's what the evidence showed that it was reasonably certain that he would know or or should know sort of spring is what has happened but then you have the additional  murder there would be reasonable certainty to show and i think the evidence or this out that intruding into home an eleven forty five at night and rousting individuals from bad even if he knew they were going to get shot that that there's a constitutional error in the structure of the sentencing i think that the precedents clearly show that you remain in this case for resentencing i think that that's what that if the constitution and they specifically said in their decision that they they went through in the independent review re weighing and they cited the clemens in the decision so i think they often said strangely enough that there were no medications pr trial court on the first post conviction hearing noted that there had been medication terms and said he considered medication so that just seems wrong then he went on and said that they found no medication  think what you can do with it is and thank you for the compliment on the brief but that's really what the essence of what the argument is clearly there was mitigation presented at the first sentencing i mean arguments were made with respect to two statutory mitigating factors and arguments were made with respect to two non statutory mitigating factors so when the arizona supreme court says that no mitigating factors were presented i think what they were saying and maybe it was an orphan way of  writing the decision what were the they were saying was that he didn't raise any issue with respect to those issues and that the trial just meant that they were so insignificant that they didn't have to consider him it's possible that i think that they did that they would have considered in their independent review and this court has said in looking at arizona's independent review that it is a thorough independent review so i think they did look at it and it may have been you know if a way of phrasing that particular issue but in the independent review they did strike the aggravator and they did a really weighing with respect to mitigation and the two other thinker and there's no mitigation death penalty isn't that the law if you're asking me now whether if a jury doesn't hear any mitigation and they hear well i mean i thought that i guess we could parse out what any mitigation is because a jury or a trier of fact under arizona statute can consider anything in mitigation whether it's in the guilt phase or the penalt think isn't at this stage of the law in arizona that if there is no mitigation and there is one a good figure that's enough for the death penalty in a technical sense i would agree with that but i think under the arizona hundred seventy or eighty six when this case was tried the statute was essentially the same now do you agree that if we were just in this back to the state court there at this time would be a jury i think ring would would constitutional structural error that indicates that the sentencing was there was a violation of constitutional law i think you would have to affirm striking one aggravator there would still be an aggravator remaining the trial judge who sat as also the post conviction judge heard the additional mitigation that was presented and said it would not have made a difference now but we don't have to agree with that because that  operators and they're really only one then it seems to me his own impression of how mental states macready more that could be a question that is raised certainly one aggravator would be remaining the aggravation the two aggravators the supreme court found sufficiently outweighed any mitigation with respect to the additional mitigation that was present at the trial judge he said that as the post conviction judge heard that evidence and said it would not have made a difference now there has been no development of any further mitigation since that time and that was in one thousand nine hundred three so whether there's any additional information that we would be presented at a resort in saying i don't know what the evidence about his behavior in prison i mean there are things that happened in twenty years clearly and i believe that i believe that a jury or a trier of fact would probably give that little weight given the fact that the crime occurred at the post conviction hearing trial counsel testified that he spent a significant amount of time with mr robinson and he talked with mr robinson regarding litigation asked mr robinson whether there were any witnesses that could be called on his behalf for mitigation he talked with all while he testified he talked with primarily mostly all of the witnesses that the state noticed and that was some fifty plus witnesses he testified that in talking in spending a significant time with mr robinson that he did not have any clue as to whether there was any mental deficiencies in  robinson in fact i think he testified that he did not see any mental deficiencies he also testified that at the time that this case was tried that the standard in capital cases was that you did not ask for appointment of mental health experts unless there was some the counsel for the defendant in that case did the same thing his primary investigation was talking with the defendant and gathering information from that he talked with a couple family members he did not get a mental health was that he did not ask your counsel didn't ask for investigator the trial judge i think even in the record he didn't testify he made the comment that back in those days they weren't they didn't have investigators for appointment for capital counsel but in one thousand nine hundred three when the post conviction hearing took place the judge said now we do but they didn't back in one thousand nine hundred six and i think it's reasonable when you look at the trial coun testimony in the post conviction hearing he had a reason for not having an investigator he wanted to delve into every single witness the state disclosed he wanted to interview and find out for himself and he didn't place himself in a position where he was going to have a conflict of interest with respect to interviewing witnesses but i think it's reasonable for counsel not to have an investigator at that time to look at those issues you know he did travel to banning california he did his health family or any members of the family other than the people who are testifying against him the record doesn't indicate whether there was interviews and the other three also in test and just talking to the people who are testifying not from the record what we have is he spent a significant amount of time talking with mr robinson about the case and about mitigation and that mr robinson indicated or didn't give him much of anything to work with i think that in what's in the record is the fact that when he came to court any any informed the trial judge that there is a potential conflict and i need i can't jointly represent mathers and robinson what he said was based on the disclosure from the state which was the police reports and statements made in the police reports and i've gone over the place i went and went over the police reports with both robinson in matters that there is a conflict i can't represent both there is no indication that counsel had any confidential information from matters in fact he didn't say he had any confidential information for matters now when you look at the actual conflict and you can look to the united states versus baker the ninth circuit case that talks about actual conflict you have to have counsel who's who's representing can one thing interests that's one and two that the actual trial coorg heard his request and properly gave mather's separate counsel now there's no duty of loyalty at that point because there's no indication from the record that any confidential information changed it was exchange to come into the evidence it kind of ties use hands doesn't it that situation would that we don't have that situation here because there's nothing in the record indicating that counsel had any confidential conversation or not he said he had a conflict he said he had a conflict so that implies that there was something that was said and that one one client would be benefited and one would be a disadvantage i think what the record like i understand that that's a different point but i asked what was in the record at that point there was nothing that their opinion is that they were guards that is not medication that they said no the court would have to remain and if there was a structural error while there was no adversarial testing on the mitigation aggravation phase of the case there was no mitigation presented there was no investigation and with respect to investigation i don't think that the state and they want to make this argument they say in this and other cases well the lawyer talked to the defendant and the defendant had no mitigation so therefore there's no need to investigate there's no need to get a psychologist or psychiatrist report now how would mr robinson know that mitigation is crucial and how would mr rahman some know that there that the supreme court has said even under stric this that any fact in mitigation should be investigated and presented on the basis of reasonable investigation now you've alluded to what the report said in the report was was almost  borderline mentally retarded he had no way that he had no education to speak of and the testing that that the psychologist gaev showed on some of the test results that people with robinson's make up can be schizophrenia they can have bipolar he found two personalities disorders borderline personality disorder which is a very serious mental condition he also found adjustment disorder which i think and it also all the mental health evidence would show that mr robinson lacked judgment that he thought that he could repeat the hollywood incident and everything would be fine he thought that his wife would want to come back to him after she made every attempt to flee this man so judge i have to respectfully disagree that the mental health issue was crucial in the supreme there was also a fair amount of information that came out