this case that trial counsel he thought her during and after trial believes it was and reasonable strategy not to request the lesser included instruction he viewed this case as a clear all along that counsel knew that he was pursuing and reasonable strategy a losing strategy for his client and he knew that it was a bad idea apparently the client was quite adamant they've charged me with a lot of problems and he didn't want any after issue put before the jury that's correct that it's very obvious to they had a disagreement on this crucial issue governs the lawyers kind of how that will be evaluated and the standard is that it will be under the unreasonable standard but also it articulates that the client that lawyer has a duty of loyalty the client the duty to provide court said no the client only has four fundamental decisions to make whether to appeal whether to testify whether to conduct you whether to waive a jury after that all the other decisions are in the hands of the quietly specifically cite the rule and i and the lawyer felt that that was a bad strategy and that requesting the manslaughter was consistent with his strategy which is precisely the situation that we have here and so the lawyer holds the trump card in that respect and i think that that is the way that where the counsel has overridden the client's preference and so what's being attacked later is the lawyer didn't do what i want is there are authorities that supports the proposition that a lawyer's performance can be de that he struggled at trial and i'd like to read that section from the trial to his closing argument it is so obvious that he knew that this was a terrible choice against his professional judgment and he did it anyway i don't think you have a constitutional right to go for an all or nothing strategy i don't that is not one of the fundamental decisions that is accorded to clients and i think that when right versus so it's very clear when they say only the decisions but they're looking at this standard there's not really any clear direction to a state court and it would be violating contrary to supreme court precedent by not finding the attorneys failure to follow his client's many tell us what do you know or what to write and i appreciate that i do want to read this section from the trial the truck is closing i am because i feel that it shows how choice which is murder or no murder and then he says but it's going to be up to you to make a decision on the murder and you're not going to have any other choices and that's because of the way the case has been presented to you i'm concerned about that as i said because i don't want to have you feel you have to convict a person of murder just because he did something else like a manslaughter of some degree so here it is clear before trial based on a memorandum of understanding that counsel knew he was headed in the wrong direction and he wrote the memo in an effort to insulate himself from this very problem and i would say that there's nothing wrong with writing a memo to record what happened but that doesn't get you off the books for making what is clearly an unreasonable decision and then we have to make counsel pain on this issue because it really frankly if i were a betting man i'd probably feel the way the lawyer did that this jury is not going to let that guy walk even if the elements of second degree murder don't match this set of facts very well but that's that's an option that says look if i the client think this jury is going to follow what the judge tells them and look for each of those elements and they can't prove that i'm a betting man i want to walk the only way i'm going to walk is to roll the dice and take the risk why it's just the lawyers choice to make that decision i think it goes back to jones first aspirants once you decide not to plead guilty and admit to the offense you hand over the of strategy and then ultimately asking for that instruction is a strategy decision even if it means that the client is going to end up with something so i'd like to reserve the balance of my time thank you nineteen in one nine hundred eighty commentary the standard four point five death to said quote in a murder prosecution the defendant rather than the defense attorney should determine whether the court should be asked to submit to the jury the lesser included offense of manslaughter that was the commentary that the supreme court had when they  standards and who had what function when they cited the standards in jones first born's i believe judge clifton you had an excellent point with respect to who makes the decision and at what point are you in fact pleading your client's guilty over your client's expressed desires to roll the dice because maybe it's not that situation who makes that determination and i kind of believe it turns into a slippery slope when it comes to lesser included offense instructions particularly when you have as we have here supreme court was saying because they'd addressed efficiency of the evidence prior was that in this case there was no real prejudice because the evidence of guilt was in fact overwhelming and that in fact we presume that juries follow the law and follow the instructions we do not presume juries when they're presented with an all or nothing situation are going to and he said i was court you to your car and mr mony is approximately five foot four ways approximately two hundred fifty pounds my testimony has carful than those we cannot fully close one prejudicial looking at i don't think there's a reasonable probability the facts would be different in that as mr mon is was escorting the lady to the car the defendant tackled the lady put knock her down and and once mr mone is was on the ground mr mccollum didn't walk away or do anything else except turn around and pick him repeatedly these facts which are the facts the hideous fact this case are our show that the jury would have hitting the victim repeatedly been kicking him even though it was the blow in his head hit the ground that was old only the cause of death shows a reckless indifference to mr mr mona's but didn't show included offense is not if you lack maybe the jury or his head upon that well for us it's reasonable probability and you're trying to say really there's no reasonable possibility of the jury moving down to whatever they're given as an alternative to the second elements no matter how much you don't like what mr mccollum did he said title to an acquittal that was the that was the long and the short of defense counsel closing argument to the jury and so he made so he took the position that his client wanted he took the position that it's all or nothing you can prove it all it's walk and i think that the in this type of situation if that's what the sense  of the client wants that's what the defense attorney should do i certainly think that he was wise to memorialize that this strategy was his client's and not his own but he ended up following the clock the strategy that his client one the case law is such that and i and i have all also i'm all aware of no case where counsel have been found to be ineffective for following his client's wishes in this kind of situation the closest you have is the tenth circuit ca that held that client the counsel was not in effect for going against his client's was but i don't think that is the same type of case so that when you look at all four issues including this issue that they are that the district court got it right the national import got a right in the first instance and that under the at the standards that nothing wrong occurred case the lawyer's got to pay attention to himself when you have what seems to me to on out to very close to the equivalent of pleading guilty to manslaughter now pleading guilty is one of the things one of those four questions uniquely reserved to the client and this seems to me if it's on a slope it's on a side of this well that's real close to the side that belongs to the client well i disagree with that because of the allocation of when you go to trial when you go to trial and you convictions on some things are not on the other i don't think that any of us would have a problem with saying ok my client is a felon in my client had a gun but he didn't do x y and z and that would be tantamount to pleading guilty but that is a matter of strategy that i think th comfortable deferring to because that's a way to play the jury to get them to do something that's going to be most beneficial to the client and i don't think that the supreme court for this point would equate that with a guilty plea and i think that same kind of strategy decision is that the client gets depressed every nuance of this that she want to feel and that the lawyer is required to do that for the client but then it approves in the next pensions the standard about that allocates only these certain decisions to the client and i think the problem with allowing deference to the client on strategy decisions is that then you get into a waiver problem because the client doesn't understand that the lawyer is really the only person provide that kind of advice we don't have that in this case so and finally we have to remember that our my client was charged with battery with battery with substantial virally injury and then the person and then the victim died and i don't be making these kind of determinations at the trial so with that i thank you for your time thank you as counsel for the arguments the case just argued is the mi