next case on the call the docket is agenda number two case number one one two nine three eight people versus lamar will meet and counsel for the appellant please proceed the morning your honour's counsel may please the court my name is brian cook and i represent the opponent lamar wilmington if time permits i'd like to discuss both of the issues that are raised in our brief and i would like to start with the first issues but i'm of course going to answer any questions that you're  might have about either issues at any time lamar was convicted of first degree murder after a trial at which defense counsel undermined lamar strong defense of this charge by requesting an instruction on second degree murder and then arguing that offense as an alternative  alternative to the front to finding him are not guilty of first degree murder this led to a virtual error because the trial judge did not determine as required by this course precedence whether lamar agreed with the submission of the instruction and understood its consequences this court held  smith that a defendant has the right to decide whether to submit an instruction on a lesser included offense and it is also held in people versus medina that when defense counsel makes such a request the judge must question the defendant and defense counsel to determine whether the defendant agrees with the submission and understands its consequences these rules are even more necessary indicates that in a case such as this in which counsel requests an instruction on the lesser mitigated offense of second degree murder because the consequences in this case are far more severe than when counsel merely requests an instruction on a lesser included offense and that's because of two important differences between wrestler mitigated offenses and lesser included offenses with a lesser included offense lesser offense includes only some of the elements of the greater offense but with a lesser mitigated offense such a second degree murder as in this case all of the elements of the greater offense of first degree murder are part of the offense of second degree murder and indecision the defendant then also has the burden of proving a mitigating factor that would reduce degree murder to second degree murder and that kind of leads to the second reason that it's even more important for the defendant to decide to be questioned by the judge about instruction of second degree murder and that's because when the defense requests such an instruction that fence affirmatively taking on the burden of proving that mitigating factor with a lesser included to him with a lesser included offense pardon me the defense bears no burden of proving any part of that offense but with second degree murder the defense does bear a burden and the jury is instructed as such  to make this maybe perhaps a little less abstract if you were to consider a case compare involuntary manslaughter to second degree murder involuntary manslaughter is a lesser included offense of first degree murder and under this court's precedents if a defendant charged degree murder or requesting a struction on involuntary manslaughter the defense would have to be admonished about that by the judge involuntary manslaughter those are far less severe offense than second degree murder it's a class three offense punishable by three to five years in prison whereas second degree murder is murder the next question then would be whether or not the judge's failure to comply with those rules is reversible error under the plane or a doctrine this was an error that was forfeited by the defense at trial there was no objection at the jury instructions conference when the judge i believe under underbox with a medina i don't think those those those holdings weren't conditioned on what defense counsel argues later in the trial once defense counsel requests the instruction or medina the judge has an obligation to question the defendant the content of the arguments i think is per is is more of a question of whether the area then becomes personal i think it does have a bearing on prejudice so in a case like this when we're analyzing it under the closely balanced evidence prone the fact that counsel argued this is alternative is pertinent to determining whether the error by the judge might have affected the outcome of trial because we do have a case here where we  do have a close case the state's case depended especially entirely on the statements of them are allegedly made to the police there was no physical evidence here such as d n a or a gun that was recovered or fingerprints or anything of that nature to defense instruction here that's correct your honor and haven't we said in people versus washington that a second degree or murder two normally flows from that how do you know that that's correct what th recently in people says washington and previously in people says lockett this court has said that when did the defense request an instruction months on self defense and there's sufficient evidence for that instruction then if the defense also requests an instruction on second degree murder then logically if there's enough proof of actual self defense then there would also be slight evidence of imperfect self defense so the judge wouldn't be permitted to instruct on self defense but not on second degree murder but i would make it clear that just because a judge gives an instruction on second on self defense the judge is not obligated on his own to give an instruction on second degree murder that obligation only arises if the defense requests the instruction the judge never this court and the appellate court have never held whether we're talking about second degree murder any lesser offense that a judge ever has an obligation to sue a sponte instructs a jury about it about instruction that obligat it everything that the trial judge said about second degree murder indicated that the judge was acting pursue it see that the judge was asking acting pursuant to a defense request if i can quote from the actual  jury instructions conference the judge said i instructed the state to prepare a set of instructions with second degree and involuntary manslaughter at your request mr mr kennelly who was defense counsel and then the judge later went on to say i can find  the later after the defense had also requested involuntary manslaughter struction that was rejected based on there being insufficient evidence for that then the judge said however i have considered the evidence in this case and he also requested referring to defense counsel that i give second degree murder and then the judge found that that that he would grant that request the judge never said anything to indicate that he would have given this instruction had defense counsel not requested it what do we do in a situation where horses instruction in those circumstances the defendant essentially has a veto over defense counsel's decision that's a decision for the defendant to make because it is very important consequences that offend it he's being exposed to liability on a charge that the state hasn't brought in and in this case it's a charge that carries a significant amount of prison time so when defense counsel is the party that requests senate struction it's up to defendant to make that decision and the judge has an obligation to ensure that the defendant has done so and has done so with knowledge case in which the state's evidence and consisted primarily of the defendants confession and that was a confession taken from a man who is mentally retarded and reads at a first grade level he has an i q of sixty seven and he was interrogated for two days before an unsigned statement was taken from him that's a case where the confession doesn't provide overwhelming evidence of his guilt we do know that there is a history of people confessing falsely and that's a particular risk when you have someone who is mentally retarded and susceptible to coercion so that the evidence here was closely balanced the question then becomes whether the error that occurred in failing to question lamar affected the outcome of the trial and the reason that it does because because lamar had a strong defense to first degree murder counsel undermined that defense by then in closing argument at near the very end of closing argument arguing to the jury that if they found that lamar was guilty of committing the shooting they should only find him guilty of second degree murder this was an argument that was factually inconsistent with everything counsel argued before and the message that sends to the jury is that counsel wasn't very convinced by by his primary argument was not guilty it also opened the door for the state in closing argument to to just hammer home an impression and to tell the jury that the defense theories of the case were in consistence and therefore should be process but in that case it was truly a lesser included offense where the defendant is subject to being convicted of something for which he was not charged here although you pointed out why you think it's just as bad here though the state has to prove all of the elements of first degree murder before it even gets to the second degree that's correct you know and but dana if the state couldn't meet all of the elements or the  crime charged the defendant would be subject to being convicted of something that had a lesser degree or lesser elements so there is a it seems to me a greater exposure and that's a difference how do you respond to that well i think the exposure is actually greater because second degree murder includes all the elements of first degree murder as this court said submitting an instruction a lesser offense can effectively concede guilt so if defending the submitting an instruction or the lesser of listening the jury doesn't know where the insurer the court's instructions so there's no concession as far as the jury's concerned as i think then you have to look at what happens in closing argument ome and that's where you if you it you know as a practical matter what the effect of requesting the instruction in arguing it the defended his ability to defending his first degree murder is damaged in a case like this because the alternative arguments presented by counsel under cut the defense to first degree murder i think that's where the prejudice comes the word defendant would acknowledge the elements but say there's the additional mitigating factor right that's correct as two for three and be all talk about that  briefly here we also primarily are talking about plane air it's clear and it is court's decision and people versus thompson than an error occurred here because the trial judge did not question the prospective jurors about whether they understood and accepted that lamar had a right not to testify and that if he chose not to testify they couldn't hold it against him that are as clear the question then becomes whether it's reversible under the close of balance prong of play here here the reason that it is i talked about why the evidence was close the reason that this error could have affected the outcome of trial is because lamar exercised the very right to judge failed to question the jurors he didn't testify he chose not to testify and testimony by lamar could've been very important in this case because the state's evidence depended so heavily on the statement that lamar allegedly into the police lamar test testimony by lamar himself would have been the best source of evidence for the defense about the reliability of that confession so if there's ever a case in which a jury needs to be in which we need to be sure that the jury accepts that the defendant doesn't have or has a right to testify it's a case in which the defendants testimony could have such a strong bearing on what the outcome of trial would be  the state has argued that a defendant must show that a juror actually was biased to obtain a reversal under the close of bonus plan the plane where the problem with that argument is that's the exact same showing that's required by this court under the defendant's right not to testify or any other principle that is a numerated rule fourth going to be is to actually question the jurors about it why dear if the judge doesn't comply with the rule then that area itself has effectively denied us of the record if your argument is that the defendant in requesting a true instruction in effect concedes the killing of the elements of murder or proven isn't a defendant in making requesting a self defense instruction conceding at least the before brock smith that a defendant is not permitted to decide whether to submit an instruction on self defense that is a matter for defense counsel and i think the important dividing line between second degree murder and self defense is that when a defendant requests an instruction on self defense the defendant that is an actual if if that defense is successful that within that will be acquitted the defendant is a being exposed to liability on an additional uncharged fence when he raises that  defense he may be admitting to perhaps his identity as the shooter but he's not actually being exposed to a conviction on and on charged offense i think whereas with second degree murder he is being exposed to that risk i think that's the clear distinction here to a guilty plea to first degree murder but that premise is not correct and now explain why in just a moment as the threshold matter we'd like to clarify that the people did not misrepresent the record when we argued that the trial court may have sue a spine to tendered the second degree murder jury instruction the only language that was omitted from the state's brief related to defense counsel's request for that instruction but that's no surprise the whole reason we're here is because the defense requested that instruction what was relevant the record and what was contained in our brief is that the trial court also requested that instruction separately and apart from defense counsel's request and while the record is certainly open for interpretation a fair interpretation and one that's fully supported by the record is that the trial court was inclined to tend what's also important and brings us back to the basis for the defendant's argument to expand rocksmith is that the defendant was not found guilty of second degree murder therefore he can't argue that the tendering of a second degree murder jury instruction is tantamount to a guilty plea to that charge what he's left to argue the only thing he can argue is that the tendering of a second degree murder jury instruction is tantamount to a guilty plea to first degree murder that's the basis for his entire argument and it's entirely untrue rocksmith held that the tendering of a lesser included offense instruction was tantamount to a guilty plea to that lesser charge it did not hold that the tendering of a lesser offense instruction was tantamount to a guilty plea to the greater charge and second degree murder is not a lesser included offense of first degree murder and it shouldn't be treated the same rocksmith was concerned with the situation where the defendant is being exposed to additional criminal liability that is what happens when a lesser included offense instruction is given a decision is made to absolve the state of its burden of proving the defendant guilty on the greater offense the jury's given the option of finding the defendant guilty on either the greater or the lesser in fact the jury can completely disregard or discarded back greater offense that's not what happens with second degree murder the defense does not make a decision to absolve the state of its burden of proving the defendant guilty of first degree murder and the jury certainly can't ignore first degree murder they have to first find him guilty of that offense before they ever get to second degree and consider the verdict forms when a defendant tenders a lesser included offense the jury gets a verdict form that reads not guilty of the lesser so clearly they can consider the lesser offense separately from the greater offense again that doesn't happen with second degree murder the jury does not get a verdict from that read not guilty of second degree murder because if he's found guilty not found if he's found not guilty of first degree murder it ends there they never get to second degree and if you consider the elements of the offense has a lesser included offense absolutely has fewer elements than the greater offense again not the same for second degree murder the state still has the burden of proving every element of first degree murder be doubt and then has the additional burden of disproving the mitigating factors of second degree so obviously the tendering of a second degree murder jury instruction does not concede guilt to any charge first or second degree murder especially not in this case where defense counsel argued that the state did not prove first degree murder pianta reasonable doubt and to be clear defense counsel did not argue for or pursue second degree murder that's a common theme that appears throughout the defendant's briefs but it's not true what defense counsel argued is that the state did not prove first degree beyond a reasonable doubt primarily because he argued the defendant's statement was not reliable after that what he did once and just briefly was that in effect when you hear about second degree murder it's not because we're asking you to do that it's because if you choose to believe that crazy story that's in the defendant's statement at best it's second degree and the defense attorney had to say something about that instruction because the jury was getting it any way  jury was getting that instruction anyway the record indicates that the court was inclined to give that instruction indicated a few days before closing arguments that he was going to do so so that argument that issue and charge needed to be addressed but what i believe the defense argues is that his the prejudice resulted from that his the effectiveness of his reasonable doubt argument being diminished because defense counsel pursued second degree murder but defense counsel didn't pursue second degree some concession by the defense because of the second degree instruction not that i recall saying that that's what the state argued now and again what i take from the defendant's brief is that the prejudice came from his counsel are going for additional criminal liability because he's not discarding that primary that the greater offense he's not conceding guilt anything what he's doing is that the state still has to prove all of those elements of first degree murder which back your argument that it was the defendant argues also that we can't compare the tendering of a self defense instruction and the tendering of a second degree murder jury instruction he says the two are totally unrelated but that argument really doesn't work after washington where this court held that the second degree instruction naturally flows from self defense so it is inconsistent to say that defense counsel can choose to pursue a theory of self defense even against the defendant's wishes that comes from amy but the defendant must choose whether or not to tender a second degree murder join struction even though it's a mandatory counterpart to a strategic decision to pursue self defense so it becomes difficult to harmonize rocksmith with those decisions especially since post proxima this court also evaluate that decision and our position is that the rationale that was employed in bronx move was not correct we believe that the more appropriate legal framework to address the issue is through the six the moment as suggested by justice freeman and his concurrence because the of a lesser included offense instruction is not analogous to a plea of guilty when a defendant pleads guilty he waives all of his trial rights but tendering a lesser included offense instruction does not admit guilt the defendant can still maintain his innocence he can still argue for acquittal and he can still be found not guilty of that lesser offense and it's important to remember the facts of brock smith before expanding that decision the statute of limitations had run on that lesser offense so the tendering of that lesser instruction right conceding guilt on a charge that the state could never prove but that was an anomaly that's not typically what happens when a lesser offense instruction is tender and it's also important to note that the right to a lesser included offense instruction it's not like the other rights exclusively belonging to the defendant none of those other rights can ever be mitigated by state court action yet the state can request a lesser offense in the court can give one sue a sponsor even over the defendant's objection we do believe that the decision to tender it lesser offense instruction should belong to the attorney that it's a matter of strategy and if there's an error that it would best be remedied through the sixth amendment assuming this court is not inclined however to revaluate rocksmith we ask that you not expand it either because second degree murder is not equivalent to nor should it be treated the same as a lesser included offense however addressing the defendants plain argue plain error argument even if roxmouth does apply to second degree murder the defendant forfeited this claim and it should not be considered under either prong of plain or first there's no showing that approximate the error occurred the record is silent and the defendant should not benefit from that fact all he can show is that the trial court did not ask if you agreed with the instruction but the failure to answer ask the question does not meet that mean that the defendant did not ultimately decide to tender that instruction and you cannot grant relief the defendant's relief or a new trial without showing that approximate error occurred if that's really his position that his decision was undermined then the issue is better addressed through post conviction petition that's how it was done in brock's and that the defendant provided affidavits from himself and from his attorney that said that the attorney made the ultimate decision and the state no prejudice here the defendant was not found guilty of second degree murder and even if he had the trial court would have tendered that instruction anyway we went back to the defense arguing that his prejudice is because his argument was  effectiveness of his argument was diminished because defense counsel pursued to second degree murder but again that's a false statement defense counsel did not pursue that offense and the evidence was not closely balanced here the evidence of the defendant's guilt to first degree murder was compounding so any error and instructing on second degree murder could not have tipped the scales the defendant injected himself into this investigation he went to the police with information about this crime then he repeatedly admitted that he killed the victim explaining that he shot him twice in the head and then put his body in the garbage can that statement is corroborated by the fact that the victim's body was found in the garbage can with two gunshot wounds to the head and the autopsy revealed abrasions to the back which were consistent with being dragged on the sidewalk as the defendant said that he did this is compelling evidence that the defendant and not someone else killed the victim as for the defendant statement to the reliability there of the trial court found the defendant statement to be reliable and the defendant does not contest that ruling on medina do apply the defendant were fit at this claim and it should not be considered under either prong of plane or lastly we believe the proximate should be reevaluated before moving forward especially in light of the defendant's request to expand that decision with respect to the defendant's rule for thirty one b argument in this case the trial court repeatedly advised the jury of the defendant's right not to testify and he did so at the beginning of forty or he also explained it as one of the defendant's rights not to have to present any evidence and then ask them if they understood and accepted that right which in essence incorporated the defendant's right not to testify and then the trial court properly instructed the jury on the defendant's right not to testify at the close of the case despite all of this the defendant claims that he gets a new trial simply because the evidence regarding the reliability of his statement may have been close but this court cannot reverse the remand for a new trial without an affirmative showing of prejudice this court has said that the entire purpose of plane air is for the defendant whose conviction resulted from the air not the evidence so just assessing the evidence is not enough because it might be totally unrelated to the air that's been alleged instead the defendant has to show some prejudice resulting from the air  this case the air involves how the jury weighed the evidence so the prejudice would be a biased jury there needs to be an affirmative showing that the jury failed to follow the omitted rule for thirty one b admonishment was the jury persuaded by that error and not the evidence that's the question and that's the defendant's burden whether it's a difficult burden or not depends on the case at hand here the defendant argues that the fact that he didn't testify should be enough to satisfy his burden but it's not because there's no indication that the error in the trial court failing to ask whether the jury understood and accepted that right actually affected the way that the jury weighed and considered the evidence the best the defendant can do is say that the jury may have held his failure to testify against him even though they were strictly instructed not to do so and the jury is presumed to follow the laws it's given to them and even though the defendant cannot point to anything on the record to support his claim it's all speculation and his speculative claim cannot carry the day especially where he forfeited the issue the jury was properly instructed and the jurors said that they could be fair given that the defendant has not met his burden we respectfully request that you  argument one thing we didn't address is whether box with the medina should be overruled those bras with has been part of the law now for almost twenty years it hasn't led to a lot of unworkable disputes on appeal it's  very simple to follow it maybe you know both the rules are simple they're workable and they haven't proved otherwise so we believe that those decisions should be affirms i would also point out the state also argues that we can't show prejudice because we can't show brock smith there because there's no evidence one way or the other whether defendants agreed with counsel's the situation to present the instruction of second degree murder and the problem with that position is that it would essentially leave no remedy for medina if a defendant can show that he didn't make the decision to tender an instruction then as counsel admitted that would be error underbox myth if defendant has to make the same showing when the judge violates medina then the the fact of an monitoring or not in washington becomes in consequential to whether or not error occurs becomes included sequential to whether the defenders of title two remedies so medina essentially would be support for mr brock smith and there wouldn't be any independent force to medina if that were the rule as to floor thirty one b well i would have just a couple points about the evidence the state pointed out some things that purportedly corroborate the statement the police such as the nature of the dissidents wounds and the location of the body the problem is that all of those facts were known to the police on before lamar allegedly confessed the autopsy was done about three months before his interrogation so the police would have known the results of that off say they would have known the nature of the woman's the state also points out that the trial court says that the trial court stepped down the statement to be reliable and it's true that the trial court did hold in a pretrial motion that the statement was admissible because it was voluntary there were no there was no miranda violation there was no violation of the fourth amendment but the jury still has an independent obligation and in her right to determine whether or not a statement would be reliable and here there was a lot of evidence to show that it wasn't there may have been some evidence to corroborate the confession but when we're asking whether cases closely balanced it's not whether there's some evidence  side it's whether that evidence is also balanced by some evidence in support of the defense position and here there was a lot of evidence particularly the margin of the retardation the length of his confession and the fact that there was no physical evidence such as testify but as it as we've pointed out in our reply brief really the only way for the defendant to show that bias is through compliance with rule four three would be if the jurors are never questioned about whether they understand and accept that a defendant has a right not to testify we'll never know whether they're biased or not so if the defendant has to make that near impossible showing their essential would be no remedy for any violation of forth a and b this court has repeatedly said that its rules are meant to be followed they have the force of law and they are suggestions but if a rule has no remedy as a practical matter then that rule truly ceases to have the force of law so for those reasons and those set out in the briefs we would ask that this court reverse the some of the colloquy and it would seem to indicate we could make a finding that the trial court request of the murder two instruction be prepared if we find that the trial court was going through and based upon the record that the trial court was going to here i think it's absolutely clear the other way when ever the trial court talked about giving instruction on second degree murder one of the trial court talked about the state preparing a destruction the trial court place that in the context of quite specifically  that the defense he was that the trial judge was doing that because the defense was requesting that destruction the trial court never said i would give this instruction even if the defense were not requesting it and one other question in response to the state's argument that there should be more properly raised in the post conviction proceeding i think it's premised on the argument of the assumption that trial counsel would have cleared this with his client before submitting the instruction would that be sufficient under medina or rocksmith i don't believe it would and in the reason it i think i think the wisdom of the of of medina is that it allows for these factual disputes to be resolved at the time of trial it creates a contemporaneous record  who made the decision whether to defend it was properly advised it it obviates the need to then have further litigation about that issue in post conviction petitions and that's just another reason to affirm the decision  that it's much better to resolve these issues at trial rather than to then have to have evidentiary hearings to determine if defendant if he makes an allegation of post conviction petition that he was never