in this case jeffrey fog and i would like to reserve five minutes for a bottle of your honor's please if your honour's please this is a twenty two fifty four challenge by my client mr fog of a complicated procedural history going from the delaware supreme court back to the delaware spirit court for a number of remains eventually the delafield where supreme court affirmed his conviction he filed post conviction proceedings and again there were remains back to the us appear report i think we're well aware of her siege will history and and and why we're here today and the but maybe you could bring is up to date on the recent history what is the status of the brady violation proceeding well as i understand it mr richmond was not available during the post conviction proceedings because he was in another state as i understand it he has now been brought back and those proceedings are now going to be taking place in the state of delaware on the post conviction so i guess eventually had taken i'm sorry i thought they had taken i don't know if they've been completed i'm not representing him on that but i have spoke to my opponent and she has indicated that i don't believe she's in on the proceedings either but i know those proceedings are it was found to be no brady violation i don't know  believe even he will probably be proceeding also in the delaware courts so the issues before your honor today have to do number one with the bruton violation and two with the bad acts that characterize it and what is the what is the test that we review the or in the trial court here well whether it was harmless sir not i believe that that's where the delaware supreme court and that's what charge robinson in the district court use the standard here we are arguing obviously that it was not harmless or even though that those conclusions were found against us and we were sent and we are saying that the attorney for mr fogg was in the in the transcripts that i've read as to the hearings that took place he didn't even seem to be familiar with what the law was on this point now obviously i'm sorry when you say harmless error you're talking about record versus  we're north to find him guilty of the first degree murder and if that if that was not the admitted the statements by mr richmond obviously the state would not have been a so you're focusing on the on the intent to have to get first degree murder well in the focusing on the intent it at a minimum well that seems to me to be your strongest argument what tell me why there wasn't sufficient circumstantial evidence to show intent well first degree murder without without the statements because without the statements i mean even if you look at mr fogg statement of self which which starts robinson seem to place a lot of emphasis on his statement was ice  or i had a problem or i may have hit up but there was nothing in that statement whatsoever that would indicate that he had the intent to kill mr delhi what about the brutality of the crime and and all of the client was not really involved in the total brutality of the kaunas there andrus was physically disabled i mean i gather was he competent to inflict the injuries to the extent that they were inflicted but we would disagree that there was enough support to find him guilty of the to find my client guilty of first degree murder without the without the corroboration of mr richmond statements and that's why w contending that it was then can the extent of injuries be evidence of first degree murder the extent can be evidence assuming assuming the jury finds out who who actually was responsible for having committed it and again all of all the things that mr richmond said were just so highly prejudicial to my client that even with that with the extent of the injuries i something the jury could consider in finding whether there is premeditation or not well the jury could consider that you have shown us the other issues that your honour's asked us to look at was the bad acts and bad character evidence that was admitted under four o four day and in that particular situation there were a number of fights that were alleged to have taken place between my client and another individual shortly before the murder as well as there was testimony by a lady as to the fact that my client the night before trashed her hotel room and was drunk on these also went into the trial without any objection made by the trial counsel as to fact as to the fact of their prejudicial nature as to bad acts and not relevant to the thing before them what was the strategy of counts well his strategy and again it appeared that my reading of it that he was not familiar that he could object to this his strategy was to show well the injuries that he had to his hand which the state was trying to show came from the infliction of damages on this traditionally probably came from the fights that he was involved in prior to this but he i would submit that that was a fairly weak argument that he was making and and plus he never asked for a limiting instruction from the trial judge i believe his point was well i didn't want to emphasize  so i never asked the trial judge for a limiting instruction but the jury had already heard the my client was in a fight the night before that he was drunk that he trashed a hotel room and that he got into fights with other people and in a minimum even if his strategy was to say well these injuries came from the fact not of this murder before the jury but from other incidents he should have at least since a jury has heard this asked the judge to give a limiting instruction and he did not do that whatsoever so are submitting that he was ineffective on on those grounds also it's also interesting that the delaware supreme court so a sponte brought up the proven issue that was not even brought up on direct appeal and the delaware supreme court thought that this was an issue and that's why they brought it up and they asked that it be briefed on the issues and then it was evidence here to support a first degree murder conviction without richard testimony on the other hand is it not true that without richmond all the state had to rely on with respect to intent to kill was the severity of the beating of the victim and while it was severe indeed it was consistent with a drunken brawl without an intent to actually kill anybody involved and we've got richmond here and richmond's testimony is that dog was responsible got carried away and was responsible for the death and beyond that he said when he started to get out of control i'm going to kill your as never heard that remark that was in the know it's clammy the jury never heard fog statement that he wanted to kill that was never before the jury mr richmond did not testify that it was in his notes which were originally admitted had been stricken before the jury deliberated is that your you didn't look at them they did not see the notes they heard the testimony of those notes were used to refresh the recollection they never went back to the jury there was never any testimony as to that what went back to the jury was the videotape police statement and the transcript and that was not in either of those the transcript of the in what richmond added to a first degree murder you didn't really add anything in that fog and andrus were already placed at the scene they were already there was evidence that they both participate there were the pattern injuries there were fogg's admissions it comes down to richmond statement that he went too far versus fogg's statement that he upset me and i the difference there is really a difference without significance fog himself was admitting that well i lost control once again neither of those statements really goes toward intent in terms of intent to kill that's correct so richmond's testimony really didn't add an intent element that wasn't already there which was the brutality of the killing the attempt to clean up afterwards was just the brutality the fact that they were there and then tried to clean up the map well why the cleaning up doesn't this not inconsistent with a drunken brawl either that's that is true it would be the state's contention was that anyone who was beaten that severely and this is often the case in murder more often than not in murder cases there is clearly no direct evidence of intent other than the facts surrounding the crime itself  maybe i didn't ask the question properly but i don't see where the i think the cleaning up obviously is indicative of culpability but not necessarily a first degree i think the brutality is indicative of first degree and that maybe a jury in this state would agree but the sense of some sort of culpability adds to both a lesser degree and certainly an intent to or a recognition that they have committed some sort of pride and that's the state always puts in when available the consciousness of guilt evidence in terms of proving guilt of a crime i would agree that it does not differentiate the levels of murder one and murder two if richmond's testimony was not in significant why was it repeatedly mentioned during the course of the trial and in the in the closing remarks and even judge when the judge addressed the motion for judgment notwithstanding the verdict the evidence that the court referred to with respect to intent to kill was richmond's one there was mention of that yes by the trial judge however in closings for example none of the parties spent more than approximately thirteen percent of their discussion related to richmond or his testimony the primary focus was on the incredible brutality of this crime and the relative culpability of the to the defense that trial was really an attempt to get a lesser included there was no way to avoid conviction on something given that three went into came out there's no other explanation so to that extent i can explain why the judge put so much reliance on that the state would contend that that really wasn't necessary because there was plenty of evidence without that the jury was given a lesser included offense to consider they were given murder two and two different versions of manslaughter reckless and criminal negligence and what did the defense lawyer with the defense argue with respect to the lesser included both defense counsel for under some fog we're arguing that there was no intent to kill in this case that it was that the state had failed to prove that intent and that clearly on attorney it was attempting to show that his statement had been coerced and that he never really admitted that they were too drunk to have formed intent and that this was just a case of  fight that went too far and that was the argument pretty much on both sides that it was one it was the other that was the codefendant who participated to a greater extent than that defendant and that there was no intent here and because they argued specifically they used richmond's testimony specifically to show that they tried to revive mr daly that right immediately following the fight and in fact that was the only evidence of that so without richmond's testimony there it would have been difficult to argue that the only other evidence of that was fogg's own statements richmond in fact helped with the argument for a lesser included that they really didn't think they killed him they tried to revive him they didn't intend to kill so in that sense it truly is harmless because the excuse me fox counsel used that information to his advantage in arguing for a lesser included unless there are some further questions on on the intent issue that moves us into the  acts i guess your argument is that the prior bad acts serve to show that this was a drunken brawl and rather rather than  first degree murder the bad acts came in one because once the motion to suppress mr fog statements was denied counsel then wanted to use his statement to police to show that he was coerced and so the statements by the police that incorporated some alleged bad acts were part and parcel of his argument that fog statement w coerced and that's why those were not redacted out then the fight the night before at cheryl adams motel room was pacifically included to account for the injuries to mr fogg's hand the remaining bad acts if you want to call it that which are not really prior bad acts because they were part and parcel of this  incident were precisely that the leading up to the event and most likely could not have been excluded even had counsel attempted to have those excluded because this was the lead up to the murder itself showing this victim that was mr andrus who punched this victim mr fogg's argument had been with someone else entirely also at the end they had they had moved on and that was the end of that it showed that mr fogg although yes he might have gotten into drunken brawls now and then certainly did not once again intend to kill anyone they were just sort of a boys will be boys had too much to drink type of behavior and this was the argument on behalf of his defense counsel for him so there's no reason to believe that those these would have one been excluded and second counsel did