attorney james majors good morning as well so are you ready to p be convicted only upon the state's proof of all the elements that make up the charge that the person is charged with beyond a reasonable doubt christina actions in this case did not receive the protections afforded to her by the due process clause because the jury was allowed to consider the evidence in her case on a standard of proof that was less than reasonable doubt based off of the jury instructions that the jury received in this case the jury received the instruction on how much instructed to detain a person that much and has reasonable basis to believe has committed retail theft or shoplifted the quote the jury was then given evidence of the first two elements of the crime with which christina was charged and  to consider that same evidence as to see if the state had proved their case beyond a reasonable doubt this going this created a conflict an ambiguity in the jury charge in itself because the jury was being asked to consider whether mr melcher hernandez had witnessed christina shoplifting and therefore had reasonable grounds to detain her and whether the state had proved that mr hernandez had witnessed christina shoplifting beyond a instructions cannot be viewed in isolation in this case they have to be viewed in light of the trial itself and the rest of the jury instructions of the jury was given i trial the state spent an inordinate amount of time focusing on whether or not pushed christina as she left the store they therefore elevated the issue of whether or not he had reasonable grounds to believe she had traffic is the issue in the first place the defense used that christina t the fact that mr meltzer hundreds pushed her as an explanation for why she did not go back to the store therefore it was part and parcel of her explanation for the night it wasn't a defense to the shoplifting she does this they try to keep that out they tried to keep that out ya know but it was for the judge to let the testimony in only the air and given the jury instruction came an issue that needed to be addressed but not to the level that the state addressed your honor the state's most to address it when your client said that the merchant had no right to stop her when in fact the law allowed for him to stop or if you believe that she was in possession of i think you've taken christina said that he shouldn't she did not believe he had a right to stop it which is why she did not go back into the store allowed to bring it up to bring up the question car her client said that he had no right to detain her correct and your client argued that the reason for her flight which of course the state wanted to use  in fact it was because she had been pushed correct so that if she was squarely before the jury yes why were they not been entitled to be informed that merchants do have the right to detain individuals for a brief period of time under certain circumstance because without an explanation that there's a difference between reasonable basis or reasonable grounds to give and a reasonable doubt proof beyond a reasonable doubt that she had committed the crime it creates an ambiguity that the jury could not have pursed out among themselves weren't they told that they were going to need to find the defendant guilty beyond a reasonable doubt yes but they were also told to follow all the jury instructions  obligation was to determine guilt or innocence and depend beyond a reasonable doubt but it's the same evidence they are now so they're considering that considering the evidence that he saw her put the goods in how bad and therefore had reasonable grounds to stop which is a lower standard of proof than reasonable doubt and then considering the same evidence without a distinction without an instruction from the court that there's a distinction between those two standards of proof you don't think the jury is capable of understanding and i think that the jury in been given but did not offer an alternative instruction or ask for the court to explain so just in terms of that instruction the walmart employee sought to stop the defendant she didn't think that he had the authority to stop or so she continued out and that was her story at trial yes so you know if it seems reasonable that that evid as to whether or not she believed that he had the authority but is it relevant to any issue in this case whether he actually had the authority so we're talking about relevance as to her state of mind there is also relevance because there's a credibility battle going on between the wal mart employee and the a merchant has the actual authority to stop someone and you know whether or not he actually had the authority it to me it seems that they're relevant because it's just simply what the defendant thought  that motivated for leaving the wal mart in disobeying or disregarding the walmart employees instruction which is precisely why the jury should not have been instructed to try and figure out that he had reasonable grounds to stop in the first place it shouldn't have been an issue in this case are you the trial court improperly gave this instruction i'm arguing that the end result was that the jury was improperly instructed what what is our s review the standard of review for when a court gives an i p a is an abuse of discretion however the argument that christine is raising is that the end result was that the jury was improperly instructed which would be that the instruction was wrong as a matter of law no i'm saying the instruction the instruction correctly states the law i'm saying that the trial judge thought this was an appropriate instruction to give and you're arguing now that as we were view their position that's the noble that's not abuse of discretion because the end result of the judge giving this instruction whether or not it stated the correct law was that the jury was improperly instructed isn't have always the argument every time there's a claim that instruction was improperly given and if that were the argument isn't there always an argument that the review is the no i i don't know your an a but i know that in this well the cases i cited again you want to address only the bottom line the fact that the jury was instructed in such a way that it allowed them to convict on proof less than a reasonable doubt and therefore the review should be doing over because of that because the jury was improperly dead ready decided to give the jury instruction before the closing arguments was given i believe you're referring to the defense closing argument where he argues that that's when mr belcher that as well there must a been however some evidence to support this argument wasn't further again the instruction cannot be reviewed in isolation and has to be reviewed in the context of the trial and the state here in addition to questioning christina on the issue questioned mr mulch on the industry in his direct and then recall him on rebuttal again soley based off of this issue and recall the detective again to answer questions solely on the issue of whether mr littlejohn and his pushed christina there for the trial court's the trial court giving this instruction without explaining or explain the difference between reasonable grounds again the language is very similar reasonable grounds to believe the person has shoplifted and reasonable doubt created an ambiguity and it's reasonably likely that the jury could he yes because work again because of the fact that the state spent so much time on it during trial the evidence for the risible to decide whether or not he had reasonable grounds and the evidence for the two first two elements of retail theft are the same the language used in the instructions reasonable doubt and reasonable grounds are reasonable bases are similar and the fact that the will be confused isn't there some obligation upon the difference to seek an instruction to clarify the matter to overcome this problem that supposedly was so severe defense counsel could have done  more he could have requested instruction but the court could also the court's decision to give the instruction without additional instructions clarifying it was also both instructions are correct statements of the law so your argument is  combination this might be confusing yes your honor even in criminal cases for example where someone is charged with i believe it's the i p i comment section where they explain clear and convincing evidence i said it in my brief them an additional instruction to clarify is is is said as to be a must because there is that apology because there is that possibility of confusion between a clear and convincing in the preponderance of evidence i'm simply saying that in this case where the judge was giving an instruction that was so closely related in language and in light of everything else that had happened during trial an additional instruction would have helped the jury be able to differentiate between reasonable grounds to  ultimately has is supposed to instruct the jury correctly the judge could have done so so i thought the jury was instructed correctly it's your position that these two correct instructions taken combination finding relative to whether or not the walmart security officer or employee had the authority to detain the defendant and when i read the instruction it doesn't  invite the or direct the jury to make that finding it simply describes the circumstances under which an employee of a merchant can detain a customer so were they was the jury truly directed to make a finding relative to that instruction the jury was told to follow all the instructions that would have meant that the jury would have had to follow the instructions on how much it's right and because the state had made it such an issue during trial the jury could have reasonably felt that they had to make a determination on whether or not mr belcher and his had pushed christina the prosecution in his rebuttal argument argued that even if the jury was to believe that she was pushed they could find that he had the right to do so and that the judge would instruct them as such therefore i believe that in combination and again looking at the entire trial and their rest of the instructions the jury would have felt they needed to make that determination part of the instruction tells the that they are to make a determination as to them or that there is no express instruction telling the jury they have to but the jury was instructed to follow all the instructions and then given this instructor always told that yes how many times were they told throughout the trial what the state's burden of proof was their questions correct preliminary instructions to the jury heard beginning the evidence and instructions at the clo the yes so at least three times they're told what their burden with yes but again all they're told in your instruction that you complain about is that a merchant has reasonable grounds and cetera there's nothing in th instruction that tells them that they they have to find something in that regard but in the trial where the state has made this a central issue now you say that but in reality it was the defense who made it a central issue the defense is the one who wanted this evidence in the state asked to keep it out you won the motion in limine and you were allowed to bring up the evidence as to the confrontation between the merchant and the defendant at that door that was entirely defendant's request so what you're asking is we want to be able to raise it but we don't want the jury instructed that a merchant has the right to stop somebody through that in this context where these no battery charge and she's only facing three tatter have nothing to do with it you mention that in your brief but no case is any worse saying that this instruction is only to be given under circumstances where there was a battery but i'm saying it would be relevant in that situation first as in this situation where it was irrelevant proved their case before they started the trial within a trial on the issue of whether or not she had been pushed and whether or not he then had grounds to have pushed you brought that off the state she brought up that she was but yes but i'm saying that the state went further with it than they should have and therefore the instruction has more weight on the jury that they have to make that determination because  because as you said they were told to follow all the obstruct correct and one instruction says not to give any greater or lesser weight to any particular instruction those correct ok so they're not supposed to give any more weight to that instruction t know but that the question was i understood as i understood it was that it was they were not required to follow it and because of everything that happened to trial they would of follow did not necessarily give any more weight but followed it in that sense of giving of trying to determine that i missed a middle child and as i had committed this battery against christina because of the way that was given during trial and because of the instruction to do so but now we're back to the instruction what part of the instructions they have to make any finding with regard to reasonable ground i'm afraid i'm going to fall down so let's bear with it we spent a lot of time on the instructions as the courts already pointed out this they want to visit the reason they wanted it and was to explain why she took quite and speaking of experience i noticed tom to foreigners was a trial judge which is another fifty years of experience as given that she pled the scene she testified that she didn't believe he had the authority to stop or and that was the explanation for her leaving because she didn't think she needed to stay suspected of theft had what was his actual authority relevant to it because that's what the instruction pertain to not the defendant's state of mind but when an employee has the authority to reason she ran was because a security officer shoved her in the chest four times the problem was it was on video and that didn't happen so now if you look at the video clip one two and three you see the defendant confronted by hernandez she picks up the baby and she picks up the diaper bag and leaves there is no pushing and shoving she committed obvious perjury and if you look further back into the record you'll see that the jury sent out a question  volume nine page twenty three wanting to see those videos i don't know what happened in jury deliberations but they then saw the video of the fan that not being pushed in the chest four times so this became the centerpiece of the trial and became the centerpiece of the trial because the defense wanted it in there that they made a motion in limine the state made a motion to me to bar it and they said no we want to put it in and she testified direct examination of the day after you told him that what did he do i tried to go around him and he shoved me in my chest four times and after that happened what did you do then i picked up my daughter and i began to run to the truck again completely refuted by the video so it became a centerpiece of the trial because defendant wanted it to be as interface of the trial but then she gets up  testifies to something that's not on the video ok mine is a very specific narrow question and that is how well wal mart employees actual authority to detain  an individual relevant to an issue in this that case because you consider all the evidence when you consider the first prong of plain error or when you consider harmless error you consider all the evidence not just the state's evidence ok are you arguing this stage you consider all the evidence and you've got her perjury in there so it is relevant it is real why did she lie about being probed pushed to the just for that's a credibility battle between defendant and the walmart employee she said she was he said that he did you you know i look at the video you're right it doesn't show any shouting but that still doesn't get to the propriety of giving an instruction now i'm not getting to the point of whether or not it made any difference if there was prejudice i'm just asking the very narrow false you have a trial someone stealing a woman stealing a few items with a baby and a man pushing her in the chest four times in this culture that greatly  theft you're potentially harming a baby you're touching a and in an appropriate place i mean that's a shocking allegation to make and the jurors are going to look at that well the instruction didn't bear on the walmart employees right to sub someone so i mean all their argument your honor is because you have the word reasonable doubt and the words reasonable grounds that this is conflict that's it there's nothing else to support it because  briefly on the testimony again the testimony in this case regarding mr melcher and is pushing christina did not make this jury instruction warranted in this case in addition the fact h would have been the end of it instead of putting the emphasis that they did on it because christina did not spend an inordinate amount of time trying to describe this outlandish incident that happened with him she simply explained he pushed her four times in the chest and she left it well but to simply explain the circumstances under which he stopped christina they'd argue like yes they did the jury an instruction like i don't believe they did and your client was using this confrontation as an explanation for why she hastily left the store correct so white was it an issue that was not an issue was an issue yes ok so why wouldn't the state have the opportunity to explain what the circumstances were that led to the confrontation because your client's trying to use that confrontation as an explanation for her flight the state is contending that it's for a different reason that it's evidence of guilt and it's all based upon the confrontation right but even with they can explain that without the instruction which caused which would cause all they can but don't they also have a right to prosecute their case in whatever manner they feel is appropriate you just don't like it doesn't mean it is not admissible as use like i don't like it because of the confusion it causes to the jury and i'm trying to find that there's nothing in that instruction that tells the jury they have to