only issue was whether that failure to give that instruction constituted harmless error and we believe that it was not harmless error for one simple reason the state cannot say that the outcome would not have been  and the only way would be different where the jury verdict would be different if they decided that the circumstances in this case warrant a conviction of second degree that's pre so we have to look at the evidence to determine where the unreasonable police lies on the part of the defendant given his testimony and i have to say  began with a discussion of subjective belief but that it it it transgresses into one of objective and objective belief is based on the evidence and the evidence must support a  one of his friends the defendant's friend saying watch out you know he pulls on going to shoot the guy thinking that the guy was pulling a gun so so we're going to we're going to focus on subjective belief and we're going and also agreed upon by the judge and the defense all the time because that's when washington comes in into play because washington in the supreme court's decision they talk about six factors that must be present to establish the affirmative defense of self defense talking about his brother had the gun the whole time you have gulped saying that because it was was pulled by thompson and the mere existence of those conflicting testimonies puts the jury a position where he can decide well and it should have been able to determine whether that subjective belief was reasonable or unreasonable let me understand your position here for you're basically saying that under washington and to paraphrase black that there is no conceivable basis to exclude a second degree instruction once he's a fit at some evidence exists to support the giving of self defense i don't know washington addresses that but i think th his struction that should've been given that wasn't given him and the clear error exists because it wasn't sure what washington address is almost a harmless error from the viewpoint of whether it would affect it would have affected the outcome of the trough in this case or roscoe rather the court so that they were not able to say that the outcome would not have been affected and i believe that that's the case here because along with a little different don't because they're the claim was by the defendant that someone else as an example of a harmless error because the evidence was according to the offering judge diametrically opposed it was objectively one way according  defendant and objectively the other way cording to the state then there was no middle ground where the defendant was claiming but i thought the facts were different then they turned out to be that we have a lot of the propositions that were presented in anderson are no longer political specially not in this case at the very least the supreme court never sat and anderson was a jury that's correct and it also it  also spoke to the question of determining whether the judge is role of determining whether a question as to the reason this suspect but we've exists or not and in this case i made a very clear pronouncement that locket never meant here the the most compelling is perhaps the fact that a self defense as well when you say different yes the bottom line is that the jury you're saying that the jury could have found the defendant guilty of second degree that's the only way you could have been different correct yes they rejected self defense and they found guilty of first degree that's crazy only thing that could be different is if they were and that's what the exchange i had with you was trying to dig up what the evidence that you believe the jury would have relied on to find him guilty of second degree and and you know i have to say you really have to come forward with actual trial evidence that you believe it is but what the supreme court may have addressed that when it said defendants don't have to the people have to at trial we have to prove beyond a reasonable doubt that the defendant didn't act in self defense and now in light of the marvin washington decision we also have to demonstrate that it was harmless error that occurred here and based on the evidence at trial instructional error was heartless no rational trier of fact could have looked at these facts and found second degree murder therefore even if the jury had been properly instructed on second degree murder as marvin washington indicates they should have been nevertheless the result would not have been different and we know that from the fact because the here seems to be that the jury should have been given that option and nobody has to argue second degree this jury simply has to be given that option and because that's what the law requires bridge the jury has to find a mitigating factor that's sufficient to reduce first degree murder to second degree murder however in this case people's position is that there speculation how did how did it it's a reasonable inference from the evidence there's no that it's circumstantial evidence that his pants were half way down however it's consistent with dante's testified as to what transpired and also you have the testimony of the medical examiner dr jones who examines the body she finds three bullet she recovers three bullets from the body two of the entrance route wounds were in the front of the body one was directly in the back of the victim's head well let's let's clear up what you're trying to you're trying to prove here by your claim of harmless here you're trying to prove that the evidence was overwhelmingly in favor of conviction of first degree is that correct yes and and and and by overwhelmingly i thought the supreme court was saying in washington is that whenever the defendant testified that overwhelmingly threshold is difficult to reach because the defendant is going to testify to the contrary and in fact that's that's what the supreme court mentioned in its decision in washington that there was conflicting testimony and they also referenced diametrically opposed evidence or testimony  and that was based on the defendant testifying along with his witnesses but we don't have to count up the number of witnesses on each side too well these have to be assessed on a case by case basis and in washington the trial the supreme court also held that the trial court's failure to instruct a jury and second degree murder was not subject to automatic reversal so the supreme court clearly contemplated that there would be situations where the same error that occurred in this case could still be found harmless based on the particular facts of the case and the facts here are significantly different than those in washington in washington you had a large street brawl you had conflicting testimony as to whether one of the victims ronald the had a gun none of the state's witnesses day with a gun however the defendant in washington testifies that ronald lee pulled out a gun and then the defendant got scared and used his own gun to shoot ronald lee he also testifies that another person ronald the was chasing him with a gun that appeared to be jeff and then we had another defense witness to talk to what what what do you what do you say you know the rule should be that you know when more than one gun exists  evidence cannot be found overwhelmingly overwhelming but if if there's only one gun that is recovered then the evidence has been shown to have been fired then i was one person on and they gave opposing testimony right but i don't i don't be saying that it's harmless because here you had you have as everyone is overwhelming i don't say it's over well because you have a situation where there is no middle ground because this evidence mike anderson was diametrically opposed so that would that would be the criteria when the evidence is diametrically balanced better tha know that's already been used in washington and that and harmless there's been rejected so that could be the task in washington they still found that based on the evidence there was a possibility that the defendant may have had a mistaken belief belief in the need for self defense and that's because the circumstances there were different there were conflicting testimony between even the defense witnesses in washington and defending washington testifies that she sure is a gun shop and then sees donald be running with a gun that appeared to be jammed so in washington you have conflicting evidence not only between this state in the defense case but between the two defense topeka as to whether ron of the had a gun so you also have testimony that there may have been one gun two guns maybe even three guns in washington in this case it's undisputed that there's only one gun the only question here is who brought the gun to the scene well it is that a fair statement because it seems to me that it's the only evidence is that one gun was fire seized and so the fact that one gun existed purely to make any difference whitewash to make a difference in the context of a second degree instruction it makes a difference because here there was no evidence that the defendant had formed a mistaken belief such as in lockett where there's no evidence  there's parties never party ever suggested that there was more than one gun here neither party took just at that time had some object that may have been mistaken as a gun how many guns were present and anderson if you recall i believe just one guy just one guy yes what is this in this case is the supreme court and in washington is looked at anderson and just as in this case it found that the jury should have been instructed on second degree murder but the supreme court in washington never held that the evidence in anderson could not be found to harm us but you know do we read reached that analysis so i'm not sure we can read anything into it other than looking at the facts of andersen which are very similar to this case here that the supreme court clearly contemplated that there would be situations where this could be harmless that's why they rule that this type of error is not subject to automatic reversal and if there's ever a case that warrants a finding of harmless error it's this case before the court right now this is a set of facts where all the evidence suggests that there was no mistaken belief here there was no middle ground when the defendant gets back into the van he doesn't say mention anything dante says well what happened in the defendant says well i think i may have shot someone and that they says well where to get the gun he found it says i have a gun the whole time so that totally contradicts his later story that he concocts about this robbery the victim never had a gun never there would never was a robbery he stepped out of the van to urinate and the defendant takes advantage of the situation shoots him you have the testimony of a medical examiner she she finds that the first two shots wouldn't have been to the front of the body would have been immediately incapacitating wonder what is the difference between the harm the contention you're raising here and the analysis just as gordon gave him in anderson when he said no second instruction had to be given because the evidence simply didn't support  what you know both are evidence based and they know yes and just as the evidence didn't see support a finding a second degree murder and anderson it doesn't well andersen it pretty much that anderson was was wrong through and through but at that part of the decision it was simply addressing the question of whether an instruction that second degree murder case that you want to present to us or did present i'm not aware of any case dealing with this however i would submit that the case before the court is the strongest case this is a case where this court in its original pinion found that there is no middle ground here and that the evidence would not have supported a verdict for second degree murder and anderson i'm sorry washington has changed the analysis but nothing anderson i'm sorry washington prohibits this court from finding harmless error here it all washington says is that error occurred is no question but it has to be assessed on a case by case basis just like any other harmless error to jury instruction or some other type of harmless error that the ultimate question is would it have affected the outcome of the trial and in this case based on all the evidence there is no evidence of defendant having any subjective belief reasonable or unreasonable so since there is no evidence here that the defendant an unreasonable belief in the for self defense the outcome of the trial would not have been different even if the jury had been properly instructed and that's understandable but here here is the the case i'm thinking of his people versus o'neill where the washington court addresses o'neill and says that the all new court further help at the here was not harmless noting that the finding by the trial court is sufficient evidence in the record of the defendant's subjective belief in the necessity for the use of force warney self defense instruction for clothes and a finding that the evidence of murder was overwhelming so i mean we could read that each time and it is the judge's decision saying that the evidence in this case warrant the jury be instructed on self defense that very public isn't that what it's telling the lower courts including this court that o'neill stands for that proposition and if o'neill stands for that proposition because they quoted it and it's not even a quote i'm sorry it's a pa e so it's their choice that the use of the sophomore closing and finding that the evidence of murder was overwhelming that's the washington quote court's words i  believe the supreme court in washington was discussing o'neil however it wasn't hoping that that was going to be the rule that washington found and  reason we can conclude that is because after this discussion of all these cases it then moves on to whether or not this type of error could be found harmless and it it makes clear that this is not a structural and it's not subject to automatic reversal so by holding that up the court is indicating that yes this is an error that could be found her based on the facts of the case and then th washington court look at the facts in washington found that under those particular facts they could not say that it wasn't harmless so again the court was applying a case by case why how do you get away from the fact that then a second degree destruction should be given i mean this seems the case last critically my brain washington cleared up that issue and said that yes it should it should have been given so we're not disputing error occurred here the question is whether it was harmless and and based on the question is this from from  expression in this case there's there was overwhelming evidence of first degree murder but if so there's also to the extent that there's overwhelming evidence in this case there's overwhelming evidence of andersen as well and and my my concern is that if the supreme court didn't tell us that and yet it when i had it analyze them harmless here in the context of washington you know aren't we sort of undercutting the supreme court by saying we would have to that what you're asking us to do and is that a tough thing for us to do given washington and what it's that we're asking you to affirm this conviction or you can only  degree how could that be harmless and might of the differences here use isn't that in the sentencing sentencing between first degree murder and under these facts before this court there wasn't a possibility of second degree murder even though yes the technically the jury should have been instructed on it still the evidence here that the same facts here  that establish that the defendant didn't act in self defense also establish that defendant didn't act with an unreasonable subjective belief in the need for self defense there was no middle ground here unlike the middle ground that could be found in washington so here the evidence simply did not support any mistaken belief on the part of the defendant and and we have the ticket the third shot to relationship that he was taken by total surprise you know that that thompson would engage in this behavior and in them in the midst of his shock then he shot that final bullet you know after having had his hoodie have to having been ambushed after having had his hoodie pulled over his head well there's no middle ground defendant testimony was that well as he's falling i may have put the gun to his head and shot it him that way but based on dr jones his testimony you have the muzzle impression which indicates the barrel the gun was pressed against a rock the skin back of the scalp with enough force to leave that impression you have falls to the ground beef and it goes over to finish the job puts the gun to the back of the head fires that third shot into the victim's head and the jury can look at all the surrounding circumstances and all of a says one thing after the next after the next in the heat of the moment you know i shot after the next shot after the next shot i why is it not i was in the home so i think that if a person is being surprise and then he goes over puts the shot that final bullet into the victim's head there you have time to think you're not acting with some unreasonable believe this guys are victims already down on the ground at that point with his pants half down indicating he was urinating as they testified and then you have to you have to defend its admission to dante that he had the  you would have been found guilty of first degree anyway and had the second degree instruction and billingsley billups been given he would have been found guilty of first degree anyway and so the supreme court i think  made clear that they're taking that as a legitimate position and your office nonetheless has to acknowledge that the law in that whenever self defense whenever the jury is instructed on self defense be living with a clear line to follow and that line is now been drawn by square where we everyone now knows what the law is and we know how to proceed in the future however you know anderson was decided should should have provided the jury with a second degree murder instruction but it never never went to that second step of analyzing anderson for harmless error is anderson when it's a death and you know  fact that self defense instruction was the cake the korean rocket said very clearly we can conceive of no circumstance when a judge could determine as a matter of law that a jury could find that the defendant had a reasonable the killing was justified but that the jury could not find the defendant subject belief was unreasonable in this case there's a self defense instruction which meant that the trial judge analysts and the state agreed that billups could have been i theoretical a reasonable subjective believe therefore the jury should have also been able to determine whether that subjective we was under reasonable finally there is conflicting testimony between both the state's witness and the defense witness subjective week existed and whether it was objective way reasonable or unreasonable so any any attempt by the state to say that certain evidence points and in one direction i doesn't accord with the very clear holding in washington that is it is certainly within the province of the jury to make that determination to secure my route one quick question it's a little off point but when you when you quoted like that regarding the no conceivable circumstance  can you can you conceive of a case where the defendant would not want a second degree instruction given and with the judge's hands be tied by washington and  and tell the defendant sorry i'm instructing on the second defendant and second degree and if the jury wants to compromise between these two diametrically opposed versions of the fact and choose the point of the middle that's fine with  i can't conceive of a case where if it would not want one i believe that in the interest of giving the jury its full spectrum of options to choose from the wife the wife of the evidence presented the second it means traction has to be given obviously