in chiles which clearly says trial court has no obligation to seek clarification of the source of the jury's confusion if the question is unclear and then to attempt to clarify the matters of law by which the joyous manifested confusion self let me ask you this so at the motion for new trial i think another lawyer was appointed ron draper mr and mr draper brought up the idea that the i think it was ma public defender representing him i'm not sure but brought up the idea that the trial lawyer had been ineffective or helping the judge rule on the note without the defendant being physically present yes your honor and and your office represents the church and in the direct appeal the lawyer for your office didn't raise the issue of ineffective assistance of counsel for the  prejudice under either or on that giving the instruction wouldn't have made a difference but under the prejudice wrong the defendant would not be able to establish that the outcome would have been any different that's true your honor now self wasn't this a viable issue to present on direct appeal had your office if this is a continuation of the post conviction  does it make a difference though at the end of the day whether we consider this under a harmless error rule or whether we consider it under british rock i think it is because this is now a direct appeal case ineffect think it is also the law of the case paragraph thirty one the defendant followed the dictates of paragraph thirty one and that's how his counsel wrote read it in adopting the defendant's motion for a new trial and that's all substantial right yes substantial right well you know there's only really six or it's certainly worth it i don't believe the right to pres simply right of presence because of this extra because of the incorrect and prejudicial jury instruction well can i ask you this it's wrong in terms of the ip act the court gave the i kind of language would tell them any more well it says you know what the mitigating factor is is that he had the belief that he could use of the right to self defense or to defend himself but this belief was unreasonable yes or other words he was using a rifle he shot it multiple times in his you know that wasn't reasonable since several witnesses testified at trial that no one had a gun out there he did testify at the trial that he thought that one of the people on the street the shot reaching forgot to remember now this is a car he's in the car traveling the defendant obviously wasn't here and in that case if i'm correct me if i'm wrong the jury basically had a question whether or not they found him guilty files of armed robbery they had to also find him child to major distinguishing factor the actors from this case nobody was present the judge acted on his own without consulting the defense attorney a and we have a serious issue about not understand the definition of the defendant's best defense and i don't think that this was just sort of a cavalier request for clarification the they sent back in addition to their request a copy of the i p i box then underlined and them what a reasonable means or what mitigating means we're really getting means because that's what they requested but if you look at the language state underlined my big concern is that the jury did not understand that this was a subjective standard his belief that such circumstances existed maybe that's the phrase that that frightens me that they understand that this was a subjective standard that they were required to get into with his had sexually and the site what he what he was perceiving i'm reasonably at the time of the incident i mean if they mis understood that ben ben ben the defendant surely didn't get a fair consideration of a second degree of defense and i think it's easy to forget that these concepts in this language may be child's play to zero took two lawyers and even two very educated people fred you know this is a jury of lay persons and we did not know we do not know what they know we know for a fact that they were confused and we can infer based on the box here and underlying what would be what would be this suggestive language do you think that anyone was going to suggest to this jury something besides the i p i that they had already been given i think the first step morse crucially was the inquiry because this was a very general request with several with underlining and boxing the court should have just conducted in court where he would be a little bit more specific jury about what exactly is confusing to you a little bit more specific and the answer to that inquiry could have guided  you just take the language and put it in simpler terms and ask whether they understand that you understand that that you watch if you are up to your work up you have to decide what s would your the conclusion that it's more complicated more complex than the norm and i'm not asking for a ruling that this instruction is unclear by law by as a matter of law simply that this jury did not understand it for whatever reason they didn't understand it they tried to they underlined it in box that you know they were clearly struggling with the language but they didn't understand well i don't think they stage hearing that what it actually  proposing how would we even go back and why or how how would the court in the wire out whether this jury didn't understand they stop this record i think that a simple oh no to the jury will you  your question is very general will you be a little bit more specific as to what exactly is confusing you and maybe and i think i don't know but maybe they'd better inquiry would have yielded valuable information that could be used to craft the response later on the sort of the second part of charles the second stage after inquiry clarification you know but i yeah i was trying to understand mr mark vaile how if there were a second stage but i i don't understand prejudice i don't understand how you can show that in this case the outcome would have been different here is why you have actually four witnesses yes right maybe i'm wrong maybe three you've got his girlfriend and you've got two other gentlemen who testified at the trial one that helped him get the gun and the other gentleman and every one of those people said nobody had a gun out there except for the defense then you have the testimony of the founded who said he thought that one of the people he was shooting at or the end of him yet eventually or he thought at the time was going to pull out was pulling out well so i don't see how you show prejudice under the facts with all the testimony presented well again it is his belief and maybe his belief was delusional maybe he was under stress and fantasize somebody was about to shoot him yet if his belief was sincere and the jury believed back not by rego you know beyond a reasonable doubt but just by a preponderance his own mental state delusional perhaps it was such a bad that he believed the deadly force was about to use to be used against him then that second degree and i think his testimony is enough plus some surrounding circumstances the fact that he and his girlfriend age the outcome i think so i just took just to change the outcome from first to second degree murder his the location so the jury kind of rejected the idea that this was just we're going back to settle things up you know you know if you know kind of how bad it was mainly or just to be  we don't even know that this was on the record but apparently it was had in open court is testified to or argue that the motion for new trial there was a hearing the lawyer was present the state w fact here is that the jury was confused about the very definition of his because they sent out a no just because they sent out a note and because no clarification was offered as to supreme court commands no inquiry no clarification and we'll keep instructions as requested to follow the mandates of child inquiry clarification we don't know and we do but we do know is that the jury was sure it could but i do think that it's fair to also let us know if the courts do you know he have an instruction or further other than you know in this case the judge said continue your deliberations i can't further  is that appropriate when it's it's appropriate when the instruction is so clear that no further instructions would be helpful in this case i do believe that this was a more complicated that there is some discussion about what the defense attorney said at this hearing on the note yes your honor mr draper a defense point of counsel states that from their view of the record in the information that they had that the defendant's attorney was present he's not effective or simply raising some issues i feel and not others and he is provided with the presumption that he is giving could competent representation in this case the issue concerning the jury not simply lacked any merit it would where neither the defendant nor his attorney were present communication there is a substantive substantial right implicated such as the rate of assistance of counsel during the proceedings where the case is that a clear response to a deliberating jury without the defendant's counsel present  also implicates potentially an impartial jury the right to impression jury where that can be considered not just in the other case after trials where the defendant was representing himself pro se and the judge   this case but but the fact that this entire sentence was underlined and the the simple statement that the jury might have been confused is basically with the defendant saying it's source prejudiced and well maybe they can't even read the other find out that was how if he were standing there when the judge was given this question whether his presence would is somehow made of difference one where the out well you know i ran under not a proper form of reviewing this type of question i don't know how we're speculating when the committee notes are not being filed the jury says that they're confused and the judge sends a back to deliber simple fact they stated initially that they're confused and the clerk said we'll continue deliberating you might come to the ready answer then yes we can speculate whether or not that that confusion remains bad again we can't it can't be the source of error when it's based solely on speculation substance of any of the responses was improper so mclaren does place a first wrong emphasis on what the court's response was not only the lack of trust in his presence with the court's responses this case is immediately distinguish