good afternoon my name is nathan it please the court my name is nancy tenney and i represent the petitioner in this case mr unceasing and i would like to reserve ten minutes for rebuttal  i'd like to focus in my arguments on the claim that has received the most attention in this case and that is mr in sixteen days exclusion from the in camera hearing all of the courts to have reviewed that claim has concluded that in error to exclude both the defendant and defense counsel from that hearing following the evidentiary hearing that was held in district court the question now before your honor's was whether or not that error was harmless whether that error how to substantial and injurious effect on the jury's verdict and we submit it does the factual findings that were developed at the evidence you're hearing include the statement that deputy castillo told the confidential informant  the jury has to look to accomplice liability and there were a number of issues at the trial relating errors relating to how the jury wasn't structured first of all in closing argument the state was allowed to specific intent of the crimes charged and therefore if he got in the car and someone in the car had the intent to murder they could find him liable that also concern is the fact that the district court failed to provide a man slaughter instruction and again when the jury did look at the evidence they concluded there was no cream meditated intent on  testified he was reluctant and under some pressure from the court he alternately decided not to testify and later changed his mind but the court wouldn't allow it had mr prac than available for instance he had prior he would have been able to provide prior consistent statements that would have helped the defense counsel who were there whether he was his statements also related to what his intent was  getting into the car mister trial counsel testified as to what mr unceasingly his testimony would have been and that includes that he had no intention that any shooting would take place that night and also mr have bolstered that testimony by mr prax own testimony regarding what a typical response to the would be the typical response to provocation was to go and confront the other shot him and asked her to get rid of the rifle with that kind of evidence i find it hard to i appreciate that your honor and that the circumstances much of the facts are not contested in terms of what you've just outlined what that doesn't answer is again who was the shooter and what w thinking when he entered the car and there was a great deal of testimony about how in gangs it was very common to carry a rifle first self protection not necessarily meaning to go out intending to harm someone  stream indifference to human life well there's any number of things that the jury could have found we don't know that the jury given them an alternative in their findings they were instructed on  aggravated first degree murder which is premeditated intentional murder extreme indifference smarter they were also instructed on second degree murder which is also an intentional murder so if they didn't find that but didn't wasn't a ning directly at them that was shot the weapon meaning to frighten them we just don't know what the jury was thinking but they could have convicted him under that theory even if you were just a newsome say and maybe confessed to law enforcement that he didn't pass a polygraph there were many indications that he was simply not telling the truth or the lie i think he said he didn't  meeson stays emotional reactions indicated deception it's not conclusive but it's significant that the state's response to their own polygraph was to simply eliminate it and move forward it seems that there were numerous indication or there should have been had there been a proper in camera hearing that mr meeson said he was the shooter and he perhaps should not be the individual who was getting the benefit of a plea bargain that please the court john sampson an assistant attorney general representing the respondent the district court directly denied relief in this case and in going to the issue just discussed by counsel the district court correctly found there was no actual prejudice arising from the error in this in that hearing the exclusion of the petitioner from the hearing petitioners counsel points to many factors one was whether or not the petitioner was the actual shooter but the jury could and would have still convicted mr and sixteen many even if he was not the shooter the jury did not find that he acted with premeditated intent instead they convicted them of the extreme indifference indifference difference just failing to grab the gun failing to intervene that's a that's a wholly different case from the one try your honor the prosecutor actually argued to the jury and this is that supplement i searched the record to seventy two to seventy one that theory the jury did have to find that he was the actual shooter and there was evidence that first that he went into the house and got the gun there was evidence that he said i'm going to get down there was evidence from his own confession to the police that even though he he confessed that he was not the shooter and pointed to a fictitious fourth individual he said i handed the gun t candy man and candy man then handed the gun to jay rock and the reason that he did that was the window would not roll down more than halfway so essentially he could not point the gun out the window so his own confession even if he was not the shooter showed that he had intent that the gun actually be fired at the at the car they were pursuing counsel also argues that the jury may not have convicted him because he was not the shooter but the jury convicted the driver of aggravated first degree murder so that yuri did not have to find that petitioner was the shooter to convict him of the crime of which he was convicted of first degree murder  also argues that candyman of witness for the state had test had confessed to the police to being an actual shooter there's no substitute in evidence to prove that fact the district court  found at excerpts a record seventy nine the records not clear whether in fact there was any such statement by the city soon gave to the police the only evidence is a triple hearsay statement that mr prac recall stephanie castillo telling him that candy man had confessed to another police detective and mr prax testimony on this point is very inconsistent and i cross examination he admitted i don't know what deputy castillo actually told told me about who was the shooter and that's what excerpts of record one thirty six so this this claim that there's this overwhelming evidence th affidavit and he admitted mr pracon mid that when he made that affidavit his hymns memory was shaky at that time as well and then he admitted in his deposition prior to the evidence rehearing and he admitted to making the statement deposition that he did not recall deputy castillo saying the candy man he confessed he also did not actually recall mr and sixteen may saying that he was not the shooter and the candy man was the shooter so his testimony is very inconsistent to say that it proves that shows actual prejudice is is incorrect in addition it's important to keep in mind what the actual error was the error was the exclusion of mr of the hearing much of what they point to such as the statements that petitioner may have made to mr prac don't come from his role as the confidential informant they come from his role as o l b gang member and that is the fact that the petitioner knew he was a friend of mr pratt he would have known whether he actually made any statements to mr practice about the shooting and similarly the  the mr prax opinions regarding who would be more violent or less violent that again does not come from his role as a confidential informant that comes from his role as the as a gang member a fact already known to the defense the only real evidence that the confidential informant provided to the police was here is where the two defendants or three different it could be located to be arrested that's the only evidence that actually was passed on to in addition much of the other evidence that titian or relies on by mr pratt simply would not even be admissible in the state court trial the testimony regarding the opinions of who would be more violent or less violent  much of the hearsay statements were not of the even the miscible the statements that the petitioner said i was not the shooter would only be admissible if the petitioner actually testified and then they could bring them in as a prior consistent statement but testify that when he was in juvenile hall with candy man candy man confessed to being the shooter so any evidence that mr prac may have brought in well that's not quite as believable as telling a police officer no your honor but again that  was was confusion over the two statements because there was a properly admitted statement through candyman direct testimony at trial to the petitioner statements i'm going to get them i'm going to get them and i don't know if the prosecutor was mixing that or confusing that statement with the other co defend statements of someone said let's go get them that's it that's a possibility but what plane actually goes avery is not the prosecutor's closing argument but statements by detective whiner were detective weimer confuse the two statements and that air he said he was asked is there any evidence that the petitioner mr and since he may directed the path of the car and he the prosecutor clarified that error on redirect and and properly corrected the fact that those statements did not come from it seems to me they came from the not testifying codefendant shamrock and for that reason any error that may have risen there was clarified and again there's no actual prejudice because there was statements through the testifying  just briefly your honor the state has argued that mr prax testimony was somewhat unclear in terms of whether mr cassatt mr deputy cassio ever made the prac when asked whether he told mr prac that there had been such a confession he simply said i don't recall he didn't deny that statement at all and again it's an awfully important statement  the defense did not come from being a confidential informant that he was simply another gang member i think part of the problem here the reason that he was hidden from the defense and that deputy castillo took the steps he him one hundred percent reliable and trusted him and therefore trusted him to make the statement that mr meeson if they had confessed to being the shooter if he were simply another gang member none of those statements would have come forward was in juvenile hall in custody he confessed to being the shooter and as the court correctly pointed out those were not necessarily the most reliable witnesses they had associations with the gangs they obviously had criminal history  well here it's a difficult whether or not he would be convicted of an accomplice because again on the jury was erroneous lee instructed us to what accomplice liability means in this the events escalated to a degree that he never expected never anticipated never intended whether a jury would find that extreme indifference or more like as the manslaughter instruction what allowed them to find that is something that's another question and that's a question that we can't answer because the jury was never given that opportunity i'm afraid i don't know the answer to that your hon believe he would be eligible for release when he's approximately eighty eight years