mr morrison i note that you've been appointed under the criminal justice act and i want to know the court appreciate your taking the appointment and advocating on behalf of your client my pleasure my honor your honor judge kelly general good morning good morning and congratulations on finally being elevated to the eighth circuit my name is stephen morrison and i represent pamela bray bull well we've argued six issues in the blue brief i'd like to focus on the first two perhaps the first three but of course i'm happy to take the court's latest to where you all would like to go as far as the first issue goes this this expert is soliciting expert testimony from a veneer person i won't belabor what actually happened that was described in the blue brief but i'd like to focus on what i think this court's standard should be when it comes to what appears to be a case of first impression the standard is this i believe where the jury's ability to decide a question it must decide has been determined  you cannot go further the government in this case went far beyond that the government to listen to it expert testimony it qualified mr murch as an expert it specific facts you can strike harder with a foot the foot is protected by a shot foot and then in the government's opening and closing referred directly back to that what poorly and i refer back to the standard i described where the jury's ability to decide a question it must decide has been determined you cannot go further if the government goes slightly further as as any attorney might by accident certainly you can't show plain error but if there is plain error in a circumstance such as this it's this case the government was brazen in referring to mr murdoch's statements  prejudice what about the plaintiffs of the air you said this is a question of first impression and one of the things that has to be clear obvious to the trial court judge and and to the parties is there are cases or something that shows that doing this would be improper i don't believe so your honor i've certainly looks the government cites war britain in its support but we're britain isn't applicable that dealt with the prosecutor himself saying you're going to see the good the bad and the ugly of the defendants criminal record  error that was certainly not a case of first impression because we have a long history of jurisprudence dealing with with prosecutor statements that are improper i haven't found a case in which you have this a listing of absolutely right remember that's that's the real difficulty here well i think the prosecutor acted improperly and i think the district court acted improperly in not shutting this down that's that's where the  is on both of those counts but how can it be clear obvious though if there's nothing that tells the district court they can't do that and the reason we give you the background is you know oftentimes you know to try to root out bias he said prejudices  you know the attorneys could be pretty aggressive during board here and the dividing line may not always be clear and so without anything telling the trial judge this was a problem how could it be clear obvious absolutely correct your honor and while i would love this tribunal to find in favor of pamela brave bill i recognize that that's a difficult hurdle to overcome i would simply say two things to that first of all the error in this case was just it was so patient and i can that would prevent this type of thing from happening in the future and by the way a ruling that would establish the standard i'm suggesting is not necessarily or always beneficial to criminal defense attorneys was that your work here really i mean here's here's i guess is gets in my little bit of my earlier question was the area here really bringing us up again and opening and closing statements and treating it like evidence because as i mentioned you know attorneys can be quite aggressive in their questioning and listen a lot of different testimony to try to figure out whether jurors are biased or or whatever was here here really been treating it as testimony or was the air the type of questioning that occurred during the war dear i think you can't treat either of those in isolation and your honour's absolutely correct that there is aggressive testimony or aggressive question that we're here in north dakota we i have a habit of introducing themselves to the jury well i grew up here and i have three kids and so forth and that would actually meet my standard because lawyers are seen as these imposing inhuman people and to humanize themselves in front of the jury would allow the jury simply to listen to their case and reached an unbiased judgment or verdict in accordance with the law but in this case jury selection but a shot foot can be a dangerous weapon the government said that in its closing in addition to that the government almost verbatim repeated what mr murch says you can strike hard or you can kick e i believe there was i don't recall specifically but i have no issue i have no issue with that instruction i know and i'm just wondering if basically the same kinds of things came out of the mouth of the georgia your instructions foot was shot whether she was wearing issue as opposed to whether a foot with a shoe would be a dangerous weapon i'm happy to say the she was wearing some sort of footwear i think given the record that's that's indisputable but this goes to issue number two which is whether it's required to describe what type of shoe or what type of footwear there was and on this point i think the cases are in our favor you can look to phelps which is an eighth circuit case from one thousand nine hundred nine in that case the question was assault with a dangerous weapon two a shotgun fired it possibly two hundred fifty seven yards perhaps less and in that case arguable this court would have reversed that conviction what we have here is not only similar but it's even better from a spray of will because all we have evidence of is some type of footwear and you know if you look to the alaska court in ransome the new york court in bird both of those court said you need more evidence than just it was a shoe in levy which is a florida case and strawman which is the d c case both of those courts held flip flops are per se not a dangerous weapon and there's some indication that at the very least tyin brave bull was wearing nike sandals which is far as i understand her akin to flip flops on the government's side the four cases that the government highlights for issue two really have nothing to do with this tillman has to do with sufficient evidence of a drug conspiracy of course conspiracies are a unique beast sullivan has to with what were the fourth amendment search and seizure case and then finally still did i believe uphold a conviction for assault with a dangerous weapon but there was specific evidence that the shoe involved was a ten issue at about that the testimony from the victim herself that what she felt is that is that going to be enough to make an inference that the way the victim felt and then the injuries that were that resulted that there must have been something more than a nike sandal or no your honor there are centrally three things we can point to here first the victim missy walker said she could feel the shoe because she was getting scrapes now if this court wants to say that getting scraped is serious in on a jelly skin on a flip flop she didn't say anything about that second the government i'm sorry see walker mention the kicks were repeated well that says nothing about what type of shoe was involved and then third the government suggests that because there was serious bodily injury there must have been a dangerous weapon involved but that can't be the case otherwise the element of dangerous weapon would simply collapse into that serious bodily injury so no your honor what see walker testified to was certainly compelling testimony of assault but not assault with the with a certain type of shoe and you need to have evidence of that type of shoe and by the way it would not have been difficult for the government to a list of this all the government had to do was get the neighbor across the street to testify that yes it was a tennis shoe the government didn't do that it was in the police report why didn't the government call this witness because i submit it's because the government didn't know what type of shoe it was and you need that i see them over a bit of my time and i'd like to reserve the last two minutes for rebuttal if i may with a couple of questions that the court asked judge ross you asked about the opening closing statements you know if you look at the context of the referral back to the discussion of this legal concept there and water it was merely reminding the jury or re introducing that we had talked about this legal concept and it's a legal concept and it's a legal concept that laypeople are not entirely aware of when you take four words and put them together shod foot dangerous weapon i guess this may be difficult for you i have with and that is that you are talking about legal concepts which is ordinarily the province of the court it is you know your honor but you know for a particular concept like this if you if you can understand whether or not a jury can at least it what kind of she was going to be used and shot herself we're going to say whether or not it's going to be a ten issue not only that but we're going to say that it has to be a ten issue with a certain type of rubber with a certain density to what i'm saying is that the jury should curiosity about or in a couple of cases whether or not a shot food is used as a dangerous weapon is a question of fact for the jury are fine so we have to understand whether or not from my perspective and i'm presenting if you see whether or not we can understand and with the ideal that a shot food can be a dangerous weapon well and that's actually my problem with it you know it each do use the word agreed and i understand that and i think i agree with you that it wasn't a suggestion it was a stipulation but when you when you say as we talked about in jury selection we agreed that a foot could be a weapon based on how it was he is and then later in that same passage you repeat and use the same language that the juror that you're murk in describing how is shod foot could be used as a weapon to me that is treating his statements as if they were the testimony of an expert when asked and maybe that's not what you meant to do but if i'm the juror sitting there and i'm reading a cold record so i don't know how it was presented but i'm sitting there thinking you're telling me that this expert has told me the characteristics of a shot thought that could make it a dangerous weapon why am i wrong about that judge i think you're wrong because we weren't doing  was listening expert testimony what we're doing is using that which we have presented for us and it's no different in any case of that you probably had experience and defense attorneys do it all the time prosecutors do it all time when we're allowed to  to participate and while here i've had a number of cases were you know i charge child sexual assaults on a number of bases were defense attorneys will particularly point out or pick out a person that's a counselor high school counselor or a principal or superintendent and they will identify that individual and they will go after the individual to the extent that they want to develop you know in your experience it's like i don't think and of course that person is going to indicate yes kids do i had never experiences were children have life is no different in that i was merely reminding them of the conversation we had where we talked about this is the concept we all agreed at the end and i said why but we all agree with greed that a shot foot could be a dangerous weapon i don't have a problem with the questioning the questioning i think did not probably cross the line of where i have a problem with is the way it was characterizing this passage to be one thing to say we as a reminder we talked about this during or dear and i question a lot of you about this and here's what we're going to present rather than relying on the words that the particular to your years that seems to me to be different but there was always follow up with this is what we presented this is what you need to find we agreed that a short foot because you could become a weapon but you need to make a determination and they have to make that determination because it is a question of fact whether or not the shotput used in that particular case was used with the intent to be a dangerous weapon of always culture that in the opening and closing redstone when the neighbor testified that she witnessed the salt the both time and them agree it will work in both individuals with shoes on did you present evidence later on during the trial and i was looking through the records trying to find is that those the statements that were made by germ ark and other words you present an axe murderer or anybody who said you know these types of issues could for example allow you to be able to kick a lot harder which is part of your opening statement and that when you take somebody with a shot put you're able to have that additional weight and you're able to take a lot longer than if you were barefoot was there any anyone other than merck that that supported any of this during the evidence at trial no your hon as presented through the witnesses did indicate that yes they may need these shoes would have been allowed or love these individuals part of the faster they were able to stop on the you know the individuals in this particular matter with no i did matter what type of shoe and of there's a wide range of shoes is pretty ok and i'll say it with women the maybe even a wider range right there could be a ballet slipper types too i think jelly shoes i don't know if those are still in fashion or not ordered all the way to a boot does it does it matter that maybe you could see a shoe and that's all the testimony is that really what you're saying is i just saw the foot being covered by something that may or may not have present crocs shoes as a shot for weapon to a jury however it was presented to be a video in a video i could see the individual jumping into the year and coming down in a very hard stop in manners hard as he could in the shot for  could or could not afford a very dangerous weapon but your honor i think so i do i think the case law you have to charge of that particular weapon is that you know what i'm saying  then it would be detrimental to prosecutions i mean if you were restricted to saying i'm either going with this or that we're going to have to charge it with you have to find this or this to a jury i think we limit ourselves in prosecution  relied on while instructions yeah i guess without you if i have a difficulty with the board iris it seems to me you're sort of anticipating the instruction a little uncertain about a custom we have that he does provided to us ahead of time while we don't actually finalize the instructions until law that morning so once we finalize it then we're able to kind of talk about this is what you're going to be might see this is a concept does anybody have any kind of issue as were bailing like you e real briefly just want to talk about the intoxication of dance requests that obviously that request was made or was declined by the judge there was simply you know no basis for it with the facts that were presented in this particular case except for the fact that she did test out over the preliminary breath test was a point one two five when she was incarcerated later that evening however there were testimony that she had been drinking intervening in intervening time between the assault and the essentially i was there but i didn't do anything so it's kind of hard to say well you presented this defense throughout this trial but now you want to have the support of the firm of the fans that really only applies if you're agreeing that you did something but you were too and just three brief points in rebuttal first the government suggests that it doesn't matter what type of shoe it is if this court finds that then it would be going against every court with the possible exception of pennsylvania state courts that have have ruled on the issue the second point is that the government said you can't always tell what type of shoes were worn that's absolutely true but in this case arbella fourth report of the  police that the brave walls were wearing tennis shoes just put arbella forth on the stand and have her say there were ten issues and we lose third of the government says that laypeople aren't really aware of this notion of a shot foot but that doesn't really make much sense because in the government asked does anybody have a problem with the shot food being a dangerous weapon nobody said anything and in the government's read brief on page eighteen the government writes that the concept of a shot foot is a dangerous weapon was not exclusive to this one to new york person mr murch presumptively all of the news of the near persons would know through their own life experiences that a foot with a shoe on it would be heavier and capable of striking harder and more repeatedly as compared to the bare foot well so which one is it did you try the case i did not do you did counsel raise that issue for the defendant raise any conversation about the shot issue certainly not in direct response to what the government's it so i don't believe i don't believe so those are essentially my three points on rebuttal and i would ask this court based on all six issues to reverse both of pulls convictions thank you thank you thank you to the parties for your briefing and your arguments and the cases n