may please the court and that robinson for appellant jamal thomas and i'd like to reserve four minutes for rebuttal before i jump into the substance of my client's he views claim it's important to reiterate what's not presently at issue in the case the facts surrounding the crimes committed against rodney entries appears in our uncontested at this point the same goes for my clients twenty six to fifty year sentence for first degree home invasion in connection with those events that's not at issue the same goes for his forty to sixty month sentence for found in possession his twenty to forty eight month sentence for flints assault in his consecutive two year sentence for felony firearm none of that's an issue rather the only issue before the court is the sufficiency of the evidence supporting his additional conviction for assault with intent to commit murder or a whim for which he was sentenced to a further fifty to one hundred years in prison and it's understandable keenness to punish the awful crimes committed against the harrisons unlikely at least in part because of the trial court's erroneous instruction that quote if the person did the assault he intended to commit the offense and quote the jury overreached on a whim charge only and the machine court of appeals failed to properly review that conviction perhaps just because of the sheer number of issues raised even from the court of appeals by a e counsel and then by my client in a pro se supplemental brief because the jury's conclusion on the a whim count was objective leon reasonable i asked the court to vacate my client's a one conviction sentence only only that the evidence suppos i'm sorry harrison testified that my client was told to mind him while davidson the ringleader so to speak searched the house for hundred fifty thousand dollars that was supposedly hidden there to make mr harrison still and quiet basically to compel his cooperation my client threatened to shoot him if he moved or made noise but at no point did my client shoot or attempt to shoot mr harrison in fact he never really physically harmed him or attempted to physically harm him in any way other prosecutor in closing  actually said quote mr thomas never touched anybody after an unsuccessful search for the money charged also as an aider and abettor yes yes he was and that's that's coming up exactly right now actually outsold basically goes straight to the secondar earlier that are spending your time dealing with that with the more difficult argument of these short so the facts are that's what comes next so after davidson was unable to find the money he came back into the room where thomas was holding mr harrison he kicked him three to four times mr harrison said in the lower back and he struck him once with the butt of his pistol and while he kept asking where the money was mr harrison said that he didn't know what he's talking about he didn't know about any money so then davidson threaten that he would kill him by shooting him down on these bets i said i still think even considering the second assault subjectively and reasonable to conclude that my client committed a whim offense because it can't be sustained the condition can't be sustained without proof one that the defendant committed assault and two that he committed that assault with a specific intent to kill the victim by means of that assault a assault correct correct so your position must be i gather that davidson never intended to kill me they're not by means of the kicks that's correct he may in the future have intended to shoot him but that's hypothetical in under the case law you can't you i have what i think boils down to a legal question rather than a factual question let's assume that there was sufficient evidence to show that david's son when  g the victim intended to kill him at that same time that he was assaulting him him tended to kill him didn't necessarily intent with up by i'm saying not he buys a series of events that would lead to his dying so you could literally in english say he was assaulted with the intent to kill he was assaulted had the intent to kill or it could then you could say well that's assault with intent to murder her soul and with intent to kill because you had the intent to kill when he was offered him it's just a coincidence in time i intend to kill him and i'm assaulting him all right or you could say you have to be assaulting him in a way that will will kill him right those are two different things right now i take it that you're arguing that the law is clear that it's one not the other and that's why i'm puzzled i mean you could you could have michigan law be for instance the way i would assume a hypothetical let's take the hypothetical of a kidnapping with intent to murder if you kidnap with intent to murder you don't necessarily intend the kidnapping to kill him you just have the intent to murder when you kidnap him so you could tell me if i'm wrong have a state statute which says if you assault someone while you have the intent to murder that's criminal you in order to win you have to prove that that's you have to demonstrate that that's not what the law oh yes and i'm not seeing where where the where it's clear that's not the law or it is made you see what i'm asking if you're know i  do and if i did i think for instance of the example just to give it some color of of one of these isis murders where they drag someone out this is a big production we're murdering this person he's going to die he is going to die you're going to die now we're going to start let's start cutting your arm off yeah you cut you cut something years off and look the marines come in sav could see why the state might want to criminalize i certainly can see why the all those hypotheticals are well and good but that not the law in michigan what the law is there to sit where is there a case where it's clear where where it's where it's clear that they they said don't do this again to my buddies or i'll come back and finish it off right so it was conditional that what they wanted to do was stop having that so that's different factual situation is not and all the language is geared to that factual situation so makes me wonder whether that case now i'm not saying the case proves the contrary i'm just not seeing why that couldn't be a legitimate interpretation of michigan law and said michigan or yes yes you are being a little legitimate interpretation michigan law or if it's if it's questionable then i guess we think that the court in this case found that it was enough no i have no case that doesn't kind of it's enough that i'm left  assault had to be committed with a specific intent to kill the victim thereby it's not the case that there's a series of events a series of violent events that might lead to the death of at which case or in b smith which in which slammed the head of the person against the sidewalk several times beat her with a baseball bat taped her mouth shut again so i think the case law is clear that it must be that assault can't be a series of events i understand the it's not clear but i'm trying to see where the case that's like our case our case right and their admission in court said it was enough so we got the case our case which says it's enough and a lot of cases which don't say either way then under  chance of winning you've got to show that the law is that the assault of act was done the attempt was to kill by means of the assault about that's right and that that you can't cite a case directly that says that face and they remade it to type up a sufficient think didn't remember this one they didn't say this was insufficient under michigan law that's right you're a judge they did in fact they sufficiency you know even though it's a federal standard under jackson you still say you still apply the state standard for the subset of crime benchley we'd have to say that michigan courts even though they didn't engage in the kind of analysis that you would because i hear you but i'm not sure i can buy what you just said but in any event your time is up  i harrison enter the house and he he was actively following harrison's directions and he was participating in the crime the whole time up until the point when harrison's wife came in and even up until that point he was he assaulted harrison's wife and said she's going the way and it's our position that the only reason that they didn't kill ronnie harrison that night was because his wife arrived and and and was going away and they had had to leave at that but you can say though that kicking harrison three or four times and hitting him once with the pistol but wasn't likely to result in harrison's that it may not have been but you have to look at the well as davidson's unconditional statements that he was going to kill harrison that night specifically one statement when he did not make to harrison himself at all he wasn't even in the same room he was upstairs on the telephone talking to someone else when he said we're going to have to put four bullets in and two minutes wife now let's focus on that that was after the assault that already taken place right i mean the conversation was after  and it kicked in pistol whipped harrison right is there any proof in the record that thomas heard they vinson talking on the phone about the ball well i think you can reasonably infer that because thomas was according to harrison thomas again he didn't say well no let's not kill this person he continued in helping davidson commit the crime he continued to hold mr harrison hostage at that point what about the critical point that i think that judge rogers it talked him right then and there that if you're likely to lose if that's what the law is because you're still not enough the three kicks and the pistol whip is not likely to have killed him and it is different than others these cases where the telling that opposing counsel can only cite one unpublished case that occurred years after this case first proposition that that particular act can't result has to result in in  he there is no michigan case law first of all we were not determining whether it's an unreasonable application of cameron or of some other mission court of appeals on published case  word were determined whether it's an unreasonable application of jackson and in opposing counsel this case is and permissible use in jackson to advocate for his preferred interpretation of case law under jackson all we do is look to the elements to see what the omens are we don't look to to interpret those omens this michigan court of appeals interpreted those elements as saying that a future in time if he had the at the time of the assault but still intended that he eventually die that night but that's enough for an intent to kill and it doesn't matter what any other mission pew says that that this case interpreted as that's enough for inten and yes your honor where i'm starting to get a little confused here is with regard to this president and if successful it would have resulted in why wouldn't you still have an assault w intent to kill in the form of the pistol whipping and the kicking and the recognition well there are that didn't work tried to kill him this way now we're going to have to shoot him does that negate the intent to kill in the first instance and all and i think what i'm saying i believe that it was rational for certainly rational for a jur conclude that even at that time he intended to kill him i mean he kicked him so hard to cause kidney damage and then he's had him on top of it so much but my question is he didn't kill him that way but but it seems as if the defense is saying and because he didn't then there was an intent to kill there and look we can show that because he then went on to talk to somebody about how many bullets they were going to have to put in there but my question is why doesn't that actually argue the other way why doesn't it show that they intended to kill him if they kicked him hard enough they would have but they didn't or davidson didn't so that meant they had to move on to the next thing i'm i'm not sure i see why that wouldn't still be an intent and an assault with intent to kill i think it absolutely is i guess i'm not quite understand what you're saying because that is our position that he absolutely had an intent to kill then you may assume that i'm just trying to figure out if that is in fact what you were saying ok half hours searching for this hidden cash prize and perhaps there it was reasonable to infer that their goal was to get the cash to maybe threaten him into telling where the cash was but at the same time their goal was there they could have the intent of the end of the night to kill him and i think that it recently shows that i guess is right back to what judge drivers that are thinking well what is the michigan law is it enough that he intended to kill him at the end of the home invasion enough to show that the assault was done with the intent to kill right and again that that's an interpretation of michigan law that this court can do sin and habeas review we don't look to whether there is sufficient evidence of the elements it might make to further that argument rebuttal i just as well it might make sense to make it more criminal to assault someone intending that he die later even if we have to do something else to get him dead you'd have less you probably assault someone worse if you thought he was going to end up dead anyway correct it might be more culpable to assault someone not necessarily assuming that he will die instantly but knowing that he's going to be dead before you're through right in there attempt to at least call severe bodily harm or whatever the proper language is the question is was also the one up with a intent to kill as opposed to just inflict serious bodily harm right and and i would respond that whether me or you think it would have sat on the jury and said well this is just great bodily harm not the intent to kill or whether we even undressed appeal we would have thought that again we i would remind this court they were on paper as review and certainly it was reasonable to conclude that summarized a rational juror would have found that violation is it is in cameron when the supreme court of the high court of michigan or a little court or whatever the hell a court of michigan came to that conclusion they allowed the conviction on the lesser included offense right so i can can that happen on hey b as to if we were to disagree with you on the issue can we how what would be the formal way of dealing with it well your honor first what i'm asking yes i do  cameron is there a way for us to have that result be which is send it back to the state court and see whether it wants to do that think i mean might be more consistent with hey b is to say you can't uphold the conviction for this crime on this record but there's another crime which he hasn't been convicted of so we send it back to the state court to decide whether to do that i think the stairway that can be done formally i think the state courts already determine that because they have said that it's reasonable to find a solvent and to kill and then the jurors found that state courts and have them do it i just want to make sure that if we do it that way it can actually happen well and again i would point to morris we mathews you can modify a conviction and again the jury the courts just in response to that last point of course the heaviest standard is very high but as the court recently decided and interior reasonable speculation isn't a sufficient to sustain a conviction and something is subjective objective leon reasonable can't can't be allowed to stand on regarding these several be honest questions toward the end of my time in responding to opposing counsel's comments just so we're clear you know michigan is kind of a strange strange creature when it comes to some michigan so some criminal law you know problem the judge rogers is talking about but i think when we look at the case law and we are we're not substituting i'm not asking the court to substitute its judgment for the judgment the jury i'm asking that the court to to up look at the case law because that is that is a  statutory law in michigan regarding the sole intent to commit murder and decide whether other the attempt the intent can be divorced from the assault and i submit that if you look at the case like that you that can't be done there's not a question with regard to what  it has to be concurrent right this very minute this exact act your view of michigan law requires that so if an intent to commit murder is unsuccessful and there is a discussion of ok so we missed what do we do next your view is that negates the intent from the first go round no no absolutely not your honor if there was a lot happened this case would suffice cause me to say no reasonable juror could have found that present tense because it the if we're talking about the kicks the state conceded in its brief that the purpose of the kicks was to get the information divulged in the end that mr davidson intended to later kill him in the day by shooting him and that wasn't a fluke of the briefs in closing arguments a trial the prosecutor i mean take that same position so i think we are we are all in agreement despite counsel's you know brief comment though that assault was not done with the intent to effect his death thereby another brief point is that there is a statute for attempted murder which is by poisoning and it's mentioned i think in a footnote in our brief it defines a whim assault with intent to commit murder which is you know kind of a funny animal as a a species of intent of attempted murder so if you think of it as attempted murder he didn't attempt to murder him by kicking him not even the isis example they didn't attempt to murder him by cutting his fingers off they were going to murder him it was that attempted murder it be different yeah well i mean that in the statute is defined as a species of intent to murder you know to the extent there is a test or authority and there are again every case there is not a single case in the history of the state you haven't been able to cite a case and it's all a common law not a single case has allowed the the the assault to be divorced from immediate intent that that assault would affect the murder not the case so i think that's we're in a strange position  shooting somebody in the leg in that circumstance isn't enough to prove you intended to kill him he was shot in the head of the torso those cases i can't remember them by name i don't have the facilities some lawyers but most of those cases the that the clearly the clear idea is this wasn't like treating him in the leg doesn't necessarily convey the idea that you want him to die but when you have you could have a situation where in the ice example this it's clearly warm to die before the end of that episode right whereas most of these cases they say well you got it you got to have the intent when you shoot them that you want to die before we're over they don't say that the are cases which the facts show that that's not necessarily the case you shoot someone in the leg you don't want them to die usually they say i never shoot people in the heart i would want to be a murderer i should you know i think the point you're right and the closest thing we have there is cameron where where he was certain i understand your distinction i came in but it's still the case that he said i'm going to kill you if you do this just like you know they're going to kill him if he doesn't divulge with the money is and you know it's the end of the night when they could have shot him they didn't he wasn't shot so that we know the kind of the kind of work that you all do and we depend on it so thank you very much and with that