attend at the time they were going to the house isn't that problematic i thought that was the whole point to take to rob the cash yes so there were there were there well there was an intent to rob but not of the victims in this case as required by the armed robbery statute so they miss clarke's testimony was that she had planned to go to the house to rob the water of cash which was just by randy kreider because randy crowder was not at the house property and this case the victims are john and kim crier so even if there was a time at which ms clark had the intent to rob randy kreider non victim that would not suffice to show armed robbery so they changed there was a change in execution of the plane the plan was to rob randy but instead plummer you're your theory is that it was plummer who took the wallet and plumber took the wallet and tried to rob him and yes and that there wasn't enough evidence to show that your client any part of this once it was clear that randy carter wasn't present did she go did your client leave or did she stay there and watch the best case scenario for your client that she stated watched clumber take the wallet or money from one or the other of these two victims and then shoot and kill the two victims i don't think the record answers that question and i think the jury could have determined for instance that just basically surprised her by going out shooting the victims taking the wallet and i thought point you know both women fled the scene but you're going the problem with your argument is that while the your client said something she also said some other things and then there's proof that she did some other things and so whatever happened in the bathroom there's evidence in the record that she then went  ahead with the execution of the play and she didn't stay in the bathroom she didn't turn around and leave the house so there's there's a lot of proof that she was still a willing participant there is evidence that would go both ways in this case and i think what the core of the argument is that because the jury was never allowed an opportunity to decide that core issue here she presented evidence that in fact she pronounced the plan that miss palmer gone on you know to commit t plan alone without her involvement at all and that you know for that reason sort of the part of the part of assessing the harmlessness argument is you know do actions speak louder than words and you know in this context you have to evaluate the story of the prosecution's case on this boy absolutely on the street the prosecution case matters but i think what the cases that evaluate harmlessness in the specific context of a failure to instruct the jury on not on an element of offense cold and that's neither as well as this court's decision in patterson versus haskins three sixteen f thirty five ninety six hippias case regarding the failure to instruct and applying harmless error in that context those cases hold that where the defendant seriously contest the element that's not instructed and has some evidence not overwhelming evidence b evidence in their favor that is not harmless on its so that the thing that circumstantial evidence is allowed and the intent to probably deprive element i don't think it's up very heavy one but i mean  understand your argument if you have an agreement to go rob a seven eleven you show up in the doors are locked lights are out no one's there and so that was their original plan but then you go two blocks in you you now rob the other seven eleven but this time you know this time you decide to with the guy and you give the gun to the other person but they don't leave surely this the affluence that you wanted to rob the first place and you went to the seven eleven to rob that very place is circumstantial evidence that you were interested in robbing the second place even though it had a different person there is a different location that just is a no brainer there is there is some have been if you leave that's another story if you say i'm out of here then all bets are off but i don't understand that didn't happen here it just doesn't seem seem close so though i guess the the standard here isn't that there's no evidence you know on the prosecution's side that this the standard is because the jury wasn't allowed to make a determination of this element that it's not harmless and last miss clark didn't contest the only and the element in evidence and i've from overwhelming this was something counsel didn't you know asked for and the judge said i'm not going to let you instruct me we're in a world where first of all these are state law instructions it's federal hey b s it's some form of plain air review and there's an awful lot of filters here or hills to climb is probably a different way to put it well under the harmlessness standard arc from the particular context of failures to instruct is that we are allowed to pay the attention of the underlying claim a federal air number lying claim a federal air is a bad jury instruction under state law right and that is a very difficult claim in general that is a very difficult claim particularly where the question is has the undecidable erroneous or universally condemned instructions won't cut it c cup us supreme court in the context where jury instructions seem incomplete or where they don't articulate the standards for reasonable doubt in the best possible way and those sorts of things i think that's exactly the right standard but here where it's uncontested that this is an element of the armed robbery charge and where the trial court failed to instruct the jury on that element there are cases that specifically concern that context the nader case  patterson case i just mentioned and what those cases hold is that where there's a failure to instruct on specific instruction it's necessary for the verdict that the terrorist harmless only wear about illness uncontested and where the evidence with respect to that element is overwhelming and that's it and it's the state's burden to show both of those pieces and that's not showing the state can make here exactly because ms clarke contested battlement throughout her trial as the core of that what about the fact that it not there's no evidence suggesting that she did not continue to be on this and participate to some degree after the bathroom conversation c i think there's not a lot of evidence about exactly how the timeline played out if there's well let's say what there is there's no real evidence arguably she was not the person who pulled the trigger she was not the person who took the wallet but she was there she was a participant correct she was there but she would contest exactly the second point that she participated in any way in the armed robbery a recontest that her testimony that she decided not to go through with it yes would she can test it by any of her actions subsequent to leaving the bathroom  why the one action i guess it's relevant after that is the removal of the wallet from the victim in the records the state courts finding was that that was done by a codefendant not by miss clark well the shootings were after they left the bathroom the shootings were also a deprivation the money if she did it to participate in for the crash that's absolutely right but what the again the specific scenario here is that because there's a failure to instruct the jury i the standard isn't you know what the weight of the evidence that it's palin hit on that aiding and abetting on the inadequate instruction to be absolutely and then out of going to actually goes to aiding and abetting because both potential mens rea or for eating in a betting require one form or another of that instruction you either have to also have the intent when you eat the principal or you have to know that the principal has that intent when you provide a thank you the state proceedings below and there are none here it doesn't even come close and i will start with the intent issue that has just been discussed as  o sudden aptly pointed now the only potentially imperfect part of this instruction is that it didn't say anything about the intent to permanently deprive it did however talk about going after property and moving and i would submit that if of to explain that you could say it was say what the instructions said that was about the concept of robbery but didn't have this permanent deprive element well i'll instruction that was given was this they must show that the defendant assaulted can kreiter number two at the time of the assault that she was armed with a weapon designed to be dangerous and capable of causing death or serious injury third at the time of this saw the defendant took money the did not belong to her fourth that this money was taken from the person of ken quieter or in his presence and fifth that the money was moved so clearly the instructions here in the summer reading from the transcript instructions here are specifically talking about going after money taking it moving it to say that the jury just of it's basically whether it's borrowing or not exactly that's what that instruction suggests of the their theory of the case is they did all of this and then going to do a no interest loan but right that's what the jury would have to be able to conclude after finding all these other victims these two individuals i don't believe it has to focus on the victims what we are misused to support your to be honest i don't have specific support for that other than i'm not aware of a case of says that you have to focus on the specific victim and the record however the testimony of detective alford shows that what that she admitted there was an intent to go commit a robbery not specifically that they were going to take the money right out of rainy creators hands but just that they had an intent to go commit a robbery and i think it's reduced into evidence that statement active alford's testimony yes was he was recounting the confession that he received from from this car and that was in evidence correct yes i can see that this is not just some little free oh no how did this happen how was the how was this mistake made what happened is there some pattern jury instruction that omitted element of this was omitted perhaps it was on the next page or just you just have to wonder how these things do happen i mean it's obvious that any judicial officer can inadvertently neglect to read or include a particular part of that instruction but you keep cutting the slack as opposed to the judicial officer in this area but you get two lawyers who are sitting there listening theoretically and  no one said anything defense counsel didn't jack to it probably because so much of the instruction to be given and that apparently the michigan court of appeals couldn't accurately discern whether it was there or not either you know i think that they they looked at it from the from the fifty thousand foot view and said you know this is close enough what about law in fact the jury instructions until march of next year  not mandatory the court doesn't have to use those you can come up with this on criminal jury instructions what about the garden  case i'm not sure i understand of course well the your opponent argues that gardner is a key case and i wasn't sure that your brief address that and i was just curious where do you have any thoughts on  t i'll have to refresh my recollection here about what but that was put to focus another way what what standard of review should we be applying to this issue on the jury instruction issue yeah that's the only issue that your partner and well you know the court reviewed this under the plane air standard  but i don't think that the plane or standard is substantially different while the plane there are standards actually a higher standard easier to meet standard then the standard that this court would be applying on this court would be looking to see whether the jury instructions were so infirm that rendered the entire trial of violation of due process the plain error instructions on the other hand are looking at whether there  there's not a there's not a huge leap that there's not a lot of white space between between those two standards by so so i think you know when the court's looking at this honestly it should be deferring to what the state court decided because essentially it applied the correct legal standard if anything applied the standard that was more rigorous or more rigorous than the standard that this court will be applying and therefore should be entitled to have a deference on were were proper y there's i think when you consider the confession in this case and you look at what they're trying to argue was sort of a turning point they're only turning to him we're talking about the point where they were in the bathroom and she handed peddie plumber the gun the only way that was a turning point is if that turned it from committing the armed robbery yourself and filling murder yourself to aiding and abetting patty palmer to commit the armed robbery and the felony murder so if that's a turning point that that's the only thing it did that's the only thing that changed now i think it was fair for the prosecution to believe that miss clark and to argue the miss clark was in fact not telling the truth there that she was in fact the one who carry through with it but at the end of the day it's really immaterial because whether she carried through with it or she had a petty part of the gun to carry through with it which is what it looks like they did that you wouldn't give up a definite to that first as they point out that would be a mistake of facts so maybe they're right that i mean it may not be the end of the world for you but they may be the element the defendant had to have intended to permanently deprive the victims of their money was in fact related to the jury so where is that is it's an application of the standard the supreme court is toe were not did no go reviewing anything the state court did that point we're we're making a separate determination as to whether given the and reasonable determination of that proceed ngs deprived the defendant of a constitutional right correct correct but my recollection is  the court also said we conclude that while felony murder on the witness on the course specifically stated that for the crime of armed robbery means a she must he must be proven that she intended to commit armed robbery further the element the defendant had to have intended to permanently deprive the victims of their money was in fact related to the jury so the court's making two points they're not necessarily dependent on each other you know but so while it may be wrong on the factual question of whether the whether the permanent intent to permanently deprive issue was related to the jury in those words it was still relayed to the jury that she had do intend to commit the armed robbery and the instruction as a whole indicated that armed robbery includes going for the purposes of taking the money moving again and i believe that the court here what the court here is saying is this was close enough under our plane air review of this instruction to say this was not a plane error and when you have a plane or a review and that's what the court is doing that's a procedural default the court's having to look at this from a different standard than what it normally would if they did actually objected to this a trial i mean it does say the defendant took money that's not a longer mean is it is odd to say that you're taking it only to give it back later but it be awfully nice to mention clarify the point it would be it certainly is imperfect but as there are impact imperfections in every trial and that's all we have here are some imperfections we don't have we don't have an unfair trial and that's particularly so in light of the overwhelming evidence and the confession in particular i want to sum up i'll close by making a final point about the confession the double deference oh under strickland and under simply cannot be overcome under the facts as they are with this confession this confession came in was obtained in an hour and twelve m the defendant even came back after the interview was over and volunteered more information than she had originally the confession was tape recorded and the evidence in the record was that she was lucid and it was no communication problem at the time when you look at that as a whole it's frankly clear that the prosecutor is right she's trying to get on instructed to the jury so did she confessed to the intent to permanently deprive the victims of their money not in those exact words but yes what did she confessed to that relates to the intent to permanently deprive the victims of their money while she confessed that the intent from the moment that they started to go to that that she went to go get the bullets and i got a man was to go rob to go take a r to permanently deprive the victims of their money absolutely because even if at the time she got there but you don't change her mind and didn't want to do it herself i wonder if there's a quicker way to think through this debate that was occupying us in the first half of the argument now is occupying us here you have to take instructions that were given and we have a jury verdict on this the truth is that the part of the structure that must be shot the money was taken from the person of can kreider it has the proof that it was used arm robbery to take money that is not belong to her all those elements were met there's nothing to debate on those fronts that's been decided the only question is whether you have to start again because aspecific way whether they were taking the money permanently and i mean i guess there's not a lot of armed robbery cases out there were anyone won on that element that i had the gu threatened i got the money but this was just for a little bit then we were going to give it back ask yourself why you need a weapon for that purpose the jury convicted on those elements that what that's really a question for your friend on the other side thank you thank you so why when we have instructions on these other things so that just takes all that stuff off the table as to who was there whether it was the person they expected to rob somebody else that's off the table now we're just talking about an armed threat and long i would use you're allowed to use common sense that that's not the focus of the argument so one of the ways the jury could have convicted miss palmer i mean is quark would be to say we know that ms plummer committed this robbery as a principle and that gives you all the elements you talked about about threatening and taking money and using a gun and so forth and also doing it permanently and doing it partly end of story but the question in that context would be does ms clarke have the intent at the time in which she provided aid to miss palmer either to deprive not just someone but the victim's of money or property and or did she know that ms palmer had the intent again to deprive b s victims of money or property yes yes yes yes based on the verdict well the verdict not about point exactly because the jury wasn't instructed the need to find that so it is one just instructed about the permanently depriving it's constructed the taking it right of a weapon it wasn't instructed it that the purported aider and abettor had to have the intent to deprive specifically the victims of money and property you can imagine one one potential factual scenario that the jury excuse me might have found possible was that ms clark and that evidence could have been found by the jury based on the evidence that miss palmer after whatever aiding abetting took place at which point you would make the determination of ms clark's culpability that ms palmer went on to problems to victims that are parts affectively undisputed so you're saying that if you have two people who go in with a plan to rob but when they go in they find that b is there and one person has the gun and points the gun at b and says give me your money and takes the money and the two run out that a would not be able to be convicted absent a show sorry that your client would not be able to be convicted absent a showing that she transferred her intent to rob yes so one way or another gave miss plummer the gun at that time ms clark might have the intent to rob someone or might at that point have known that miss palmer had been intent to rob specifically randy kreiter they go into the house  plummer after determining that the target of his meet the target of the robbery was not present shifts or intent robs other people though aiding and abetting statute requires that at the time any aid is given the aider and abettor have it a minimum knowledge of that the principal has the intent to rob again the victim's of money or property  saying this sixth album and is ridiculous we don't need this just suspend just assume for a second sake of argument all that matters in armed robbery is the taking we're not worried about whether you want to give it back that happened very often so we're just not worried about that ok so you have everything else now in this case is the same except michigan doesn't have that six the woman and you're right the main theory of the case for the prosecution was not that your client was the one that was going to do all this stuff because she handed the gun over and so it's aiding abetting i assume given the instructions on page eighteen of your brief combined with the aiding and abetting instruction there's nothing to talk about in terms of there being sufficient evidence to convict your client on aiding and abetting in this case sufficient evidence is not the sort of standard work in time yes because there's enough evidence to show that even though the victim changed the potential victim changed that there was still of enough intent to commit armed robbery under my version of the michigan statute measures not really a close case i'll accept the hypothetical ok so now what i'm saying is all of your arguments about transferring intent were their most important is that the armed robbery and the taking that's where they're that's where they really matter they're not about this last thing of whether you did all this but didn't plan to keep it forever so that's that's what that's what i'm struggling with with the argument well i think where the intent matters is at the point at which whatever aid was given it's not clear when that happened detective alford testified that ms clark the sort of statement was unclear as to when the gun was transferred that's the purported aid aid that would satisfy the aiding and abetting standard and so the question that the jury had to answer was what was ms clark's intent or what was her knowledge at the point in which whatever aid miss palmer was given matching the transfer of the gun would be one theory the jury could have settled on and if it that time her intent was only to rob randy kreiter not to rob the victims in this case as required instructions then the jury could well have acquitted her once you know having having understood that that's what the requirement was and that's effectively her core defense at trial and she didn't receive a jury verdict on that defense because the instruction as to what it meant to intend to commit armed robbery wasn't provided and that instruction is incorporated into the aiding and abetting destruction being permanent deprivation permanent deprivation from the victims of money or proper thank you very much and i understand that you're appointed pursuant to the criminal justice act and we want to thank you for your representation of your client and the interests of justice thank you very much the case will be submitted with the