opening and developed evidence supporting this depends on cross and in his case in chief in order to establish a reasonable doubt as to the robbery defense and the robbery murder special circumstance when the self defense so the deliberate and premeditated murder theory the california supreme court i'm reasonably claim a great and self defense both rested solely on he after being asked to leave the bar he paced back and forth of the people sweeping or so on another way to the california supreme court's harmlessness determination and reasonable share the air because they didn't include a definition of property and what's and is there or if the jury believes that mr be i do not under i do not know george i don't have an answer for you unfortunately we can see either can hear you fine so why don't you proceed with your question were ok but i can also go down and come back the a finding that very conclusion by the jury that he went to miller's house to collect the d jury verdict standard and even when my head looking away the california supreme court did was that it said i mean basically saying we can't meet that standard because there are all these facts in front of the jury and in particular the jury was instructed on the need to find specific intent to rob or still so if the jury had found specific  which apparently it did that would have negated a finding that he'd gone to miller's apartment to collect  was stealing and because there was no instruction of the jury that if he was reclaim his own money then the instructions were significant conflicting testimony both in firms of dates recollection and any specifics that he was going there to meet this gentleman so that seems to be the not really move your needle of the line upon shop that might relate to whether you should get to the jury at all but it doesn't really relate isn't and so it would seem to me that back to this idea that you're you certainly would have found that there was reasonable doubt as to the robbery and and just didn't see any evidence that there was a loan other than his testimony so i live the end of that if there's part of a record i should look i would i would add that even if it's testimony looking at it prejudiced him and and given the fact that there was really no evidence i don't robbery took place mr miller thirty some dollars in his pocket and had his jewelry was very weak and it's also significant but this is the only special circumstances and so if the jury is going to find the proper age place it also means there they would find theories and they significantly narrow the way the jury could consider the evidence before it with reasonable considering all the circumstances and hear counsel's reported strategic decisions for failing to present the readily available then i read it more as a claim that the consul had made a decision right or wrong not to present was there also evidence that the council was not to understand the claim as i understood it it was more he has this constellation of very significant mental issues but she has not presented is that the primary gist of the aspects that were beyond what they already knew but based on just what you it was it was unreasonable for them to fail to present this this large quantity of classic you obviously it's important to follow these supreme court cases that's what we're doing but if you want to address prejudice in a in a broader sense that's fine too you're down to about five and a half men ok so just just ineffective assistance of counsel claim defense counsel in this case in this case extensively investigated whether democrats and suffered from mental illness or brain damage they had mental health evaluations from two doctors hired by the defense and they also had two reports from doctors who evaluated as in connection with it whistle offenses there is a declaration from defense counsel stating that she had investigated demi traces mental health and defense counsel stated on the record that she had his prison records regarding his mental health in attorney schoolies he stuck with ration he stated that the reason they did not introduce mental health and evidence in this case is because they feared it would open the door to jam and this passed by now sees anti social personality disorder and evidence showing that he was mulling during to get drugs based on defense counsel's extensive investigation that decision was virtually unchallengable now havey this council argues that it should have been and it should have been admitted anyway but there are several problems with that argument st is it is case isn't held that it's a reasonable trial strategy not to introduce mental health evidence whereas here it can impeach be impeached with conflicting opinions on the matter and in addition if then the fence counsel had introduced mental health evidence the prosecutor would have introduced evidence by doctors who believed that damage choice was a sociopath did not suffer from mental illness and was a mullingar and if the jury believed that evidence it would have a race the force of all the other mitigating evidence presented by the defense during the penalty phase which included evidence of his drug addiction and his remorse his abusive childhood and evidence relating to sympathy for his family because the evidence shows that ben's counsel thoroughly investigated his mental health and made a strategic decision not to introduce evidence at the penalty phase it cannot be said that california's rejection of this claim was contrary to or an unreasonable application of united states from court authority unless the court has any questions on this issue i will move on to the claim of right issue but i have a question some farm something i think my math on that last issue i might then claim i see an i know it's a hard high fence but it seems to be that and it's unfortunate because we don't have a declaration from the actual defense council who made this decision but it does seem to me that  i'm just wondering whether that was truly a tactical decision on her part by not to not put in that additional having according to her effect as well so i think there was a real risk in introducing this type of evidence which counseled recognisance and because and this wasn't a situation where no evidence was introduce you know they did introduce a great deal of if there are no further questions i will address a claim of right issue the california supreme court's application of chapman with respect to that issue was not unreasonable for a myriad of reasons in this case defense counsel extensively  he acknowledged that it was a valid defense but that it was invented that forty dollars debt to explain his demand for miller's money which he knew had been overturned by the robber instruction in this case did not conflict with defense counsels are if democrats were truly collecting a debt he would not have the specific intent to deprive miller of personal property and the evidence in this case that during the course of an attempted robbery was overwhelming again witnesses heard him say given iraq while it right before he stabbed miller to death and immediately after stabbing miller he went over to whistles happens that night and change them based on that when he learned that there was evidence that would cast doubt on those defenses st please he didn't know anything about miller's murder when that didn't work he told psychiatry's that he had blacked out during that entire period and didn't remember anything from christmas through his arrest and when it became clear that was not going to work he came up with this collection of a death story now this coupled with his flight which showed consciousness of guilt and his prior crimes of moral turpitude which share her willingness to lie as these things made his testimony completely believable they counsel him just to clarify for me so you agree that it was not to instructing kind of right i believe that yes i do i do you can see that was there ok and do you think it's theoretically possible that the jury could have found that the defendant could have gone to another not on this record not in light of the overwhelming evidence showing that he did neither he did not go there or to collect testimonies and then there is there was evidence that it did not appear that miller's room had anything taken from it there was many in his wallet this could be explained in terms of his activities that day going to the bank and paying his rent and when the defendant was arrested he had many that had belonged to whistle that he didn't have known his name i think the evidence of attempted robbery was not strong in this case i'm sorry if the evidence of a completed mockery was not strong in this case but the evidence of attempted bomb property was extremely strong yes nothing was taken from that we know  what was going on but the fact that he went from miller's house directly to whistles house and did exactly what he failed to complete at miller's house was very very strong evidence that his intent was to commit robbery that i assume just because of the way california instructions were at the time that there isn't an inherent inconsistency in a claim of right and a claim of self defense correct correct but your argument is that under these facts that there would be that there would be i'm sorry an inconsistency that one would necessarily override the other consistent there was no there was no conflict between the two instructions so he could be the instructions that you have to have the intent to deprive a person of their personal property but as defense counsel definition of property and then the claim of rights which was the collection of the death so but that raises another question given  that was an accurate statement in this case i think what the court was saying was that both defenses were based on demonstrates test money and because his testimony was so unbelievable you couldn't really reject one without rejecting the out because there was no corroborating evidence for either of those things and again this was the rd the rd story he had told about what happened on the e to and i social personality disorder was under used in this case the benefits of me a day of admitting evidence of brain damage and mental illness far outweigh would been more harmful than what they had already heard and if the jury had been able to hear evidence of mr us if i could make one more point of clarification as to the claim of great offense the california supreme court assumed that the jury rejected to self defense testimony but we don't really know if the jury rejects this testimony because of the way this case was charged and the way that the prosecution proceeded on a felony murder her theory first degree murder based on the felony murder and the robbery alone without ever getting to the question of whether he was guilty the felony murder theory