westermann there was a substantial evidence in this case from which the jury could have concluded that mr westermann was not a participant in the murder but nevertheless could have medical examiner takes the time of death between seven thirty pm and eight pm there was evidence that mr westman was at home at that time he logged onto his computer after seven twenty  his son had him home at seven thirty and neighbor in the victim's apartment indicated that he heard sounds of the struggle at seven forty five in addition  that evidence precludes his having actually participants well it doesn't preclude it i mean i think the jury could have found otherwise with the point is simply that the jury could have found that he wasn't there if he wasn't there  n the evidence as to whether or not he intend he did intend to threaten and harass the victim i think a reasonable jury could have found on the basis of this evidence  the other day i think the jury could have a reasonable jury could have found from this evidence that the brother was sent over to the to the victim's apartment to deliver a note the note was not indicative of intent to kill if mr weston was intending to kill the victim it certainly seems implausible that he would have delivered such a note and left it at the scene of the crime i think a reasonable jury could have found from these facts the brother was sent over an at the scene of the crime it seems to me that this was a confrontation that when a wry and not a premeditated murder and nevertheless the jury could be found on the basis of the erroneous instructions that my client was guilty of murder as to why this was in an reasonable allocation of established supreme court precedent to the facts and therefore reviewable by this court on corpus it seems to me that the both the state courts and the district court reviewing the state court decision focused exclusively on the prosecutor's theory of the case tended to overlook and not discuss critical evidence counsel isn't part of the problem though that the the only charge was murder there was no instructional theory argue the type of the intimidation or harassment how was the jury to somehow cobble together in their mind that  westman was not present at the scene of the crime and based upon that presentation the jury reasonably could have concluded that you're saying the prosecution argued that he was not there to fit the defense or it defense that was there the whole tenor of the defense they they presented additional evidence that he wasn't there for example he was wearing a post man's uniform that evening the one eye witness saw two man in a vehicle that resembled mr weston's vehicle but made no mention of a postman's uniform so what i'm suggesting your honor is that with the alibi defense which was i think pretty per presented rather forcefully by the defense the jury could have  mr weston wasn't there he was not a participant in the murder he may not have known what was going on but nevertheless based upon the prosecutor's in for a dime in for a dollar argument could have concluded that he was guilty of first degree wh arguments and didn't really look at the evidence which was a completely inconsistent with the theory that mr westermann was a participant in the murder and not having recognized and the accomplice instruction was to take into account the evans put on by the defense that he may not have been there he could still be guilty of the same charge if he had somehow aided and abetted or serve as an accomplice not as the whole purpose of the instruction correct well this stage theory was that mr west either mr westermann or his brother did the shooting but they both were there and the  viability of the state's theory was dependent on the notion that mr westermann was there with the brother so that both were direct participants in the murder but he could be ambiguous evidence as to whether or not he harbor a premeditated ten intends to kill the victim well that's what brings me back to my concern i mean even if he's not there he could have been an accomplice but i thought your argument was that if he wasn't there the jury might have felt that the crime that he was perhaps the aiding in some fashion was this intimidation or harassment and that that has become the focus of any  theory upon which you can hang your hat correct correct but that's why i come back to this concern that it was never instructed there was no charges filed along that line no direct argument from the prosecutor that they should consider that in any way to whether or not mr westermann was present at the time of the murder it would also necessarily have to entertain doubt as to whether or not he had knowledge that the homicide was taking place  d i think that with conflicting evidence of this sort rony is jury instruction would have suggested to the jury that they could have convicted him even if he wasn't present and even if could get in for murder in other cases where there has been prejudice from this erroneous type of instruction the prosecutor has used that in for a dime in for a dollar argument to specifically argue that the defendant is guilty because he knowingly participated or aided some crime and then a greater crime later occurred that was not the crime charged for that or he did not  the crime that he was convicted of that is not the case here the prosecutor never argued that the defendant was guilty and knowingly aided or participated in any crime less than the crime of  if the the phrase in this particular case was used because there was evidence presented that might suggest that the defendant's brother actually pulled the trigger the prosecutor strenuously argued repeatedly argued the defendant was the shooter he's the one who fired the gun but even if it was his brother he still guilty because it doesn't matter who actually counsel repeatedly argues that the jury could have found him guilty based on a lesser crime that's not the standard that's more of the standard of is there a possibility there and that's not the standard of factual prejudice there must be an actual showing that this hair affected the jury's verdict and without this an error the jury would not have convicted him of murder we would have the planes at least one substantial injuries and yes it must be substantial and a jury state court was wrong and there was actual prejudice as long as the state courts decision was subjectively reasonable relief is still far and in this case the prosecutor never charged the defendant with knowingly part first of all that the prosecutor's argument was the defendant was the principle the defendant was the one who fired the weapon to kill mr stone prosecutors arguments regarding the accomplice whenever it's if he knowingly aided in the crime of harassment you can find him guilty of murder the prosecutor never argued that there was never instruction to that of fact there was never instructions on lesser elop or lesser crimes the elements of lesser crimes this entire trial focused on the defendant's prosecutor in the case of that standard by the county i don't know all the facts and when it is they're charging decisions so let's you know the brother was there at all we do have evidence a witness saw two men in the defendant's car and one of the men matched the description of the brother so we know that it was at least at the scene of the crime we also know that the brother was seen later with a weapon that resembled the weapon that was used for just frankly my initial impression reviewing the briefing was that the critical question was the lack of any theory on the part of the prosecution that would support the jury pressley misled in some fashion with or heard mr levy arguing it's struck me that the defense theory is what may have created the potential for some confusion of the jury because their theory was that the petitioner here the defendant mr westman was simply not present and if he was not present then that leaves the jury open to i guess a lot of speculation and concern about what role if any mr west may have actually played and what crime he may have been encouraging his brother to carry out including perhaps exactly what he's arguing here that they were trying to  intimidate the victim and it became an intimidation on that which then mr westermann becomes responsible for as an accomplice which would be a misapplication of the law what's wrong with that the state court addressed that issue your honor and this is that's my point i agree with that i think clearly from at least what i've reviewed of the transcript in the closing arguments there doesn't appear to be anything like that which the government or the state argued that but i'm raising the question whether the defense theory which was to suggest he was not