i think i'd like to begin my argument with regard to the merits issues concerning the implications of mr davis not getting a separate penalty phase hearing and the  narrow what it says is under the circumstances of this case now unfortunately the mccabe decision itself does not talk about what the facts were but and this is what i think this addressed as your concern judge and noonan i am not asking for some broad constitutional holding here the decision that this courts could make if i were to if i were to prevail on this point and this point alone would be extremely narrow because what happened here was that mr davis was mr davis lawyer and makes that extra special choice but it's not a constitutional choice i just cannot in any again i don't mean to to miss characterize my argument as coming under firm because really the argument is more discrete than outlines the procedures for conducting a separate penalty hearing we feel that this separate penalty hearing is not required for death is not an option for the jury to consider i don't know how it could be any clearer for us that court for twenty three years off and on i think this is a very reasonable inference to draw from what happened in the case what the court was saying is under it and if you read that quote that you just gave judgment you and i think it's preceded by under the circumstances of th what i glean from that is if you are not rolling the dice as judge newman said going all or nothing and perhaps your defense is voluntary manslaughter or id you know second degree murder i did not have premeditation the deliberation you can you can with some sense and without some confusion without looking silly making making mitigation argument you can make that constitutional pivot if you will and then argue mitigation to the jury i'm saying that you cannot you cannot argue mitigation to the jury if you're saying i did not do it i mean i understand it's just doesn't mean i understand the internal conundrum from a trial lawyer but even though it's one of the circumstances we don't agree but then they go on to say they interpret the statute under a plain reading of the statute and i just don't see how this court can read that any differently to the court under the posture where the defendant got a penalty hearing a separate penalty hearing and he complained he said i shouldn't get a separate the hearing and naps that suggests to me and again having practiced in there that i can tell you that there was a think when i get to the to the bad clemency instruction maybe my point will be will be more compelling but my point is that time under the state of nevada law at the time that mr mccabe went to trial not with excuse me mr davis went to trial notwithstanding the holding in mackay he was entitle to a separate hearing because he did not fit within the circumstances of the mccabe case i eat mr davis had to make the hobson's choice  that the trial judge followed nevada law and it was not unconstitutional wasn't a violation to to do you know everything at once then i think that there is fear and i don't i think that there is still constitutional error when you look at how the jury was instructed with regard to clemency and that that was clearly an erroneous definition of state law and i would just like the court to the jury instruction number you can't speculate now that instruction was not given that instruction was the instruction that had to be given under nevada law it was not given that problem was then exacerbated when the when the prosecutor stood up in front of the yury during closing argument and said life without possibility of parole does not mean life without possibility of parole i'm reading from my opening brief to page twenty nine and modify that back and give him for all that is absolutely a misstatement of nevada law as it existed then and as it existed now because i can tell you right now having represented many people in front of the pardons board in the state of procedural grounds but judge read the federal district judge below reached the issue on the merits so we do not have a merit and concluded what i'm sorry and concluded what and concluded that it was not a violation of the constitution i believe what they've decided and i have the opinion here just to make sure that my notes tell me that they did not find since first of all they reviewed it for plane air under nevada law and they did not find that there was plane error with regard to the  and what what judge reed did is he reviewed it under darden versus wainwright and found that in other words he reached the merits of the claim under the federal test and found that there was not substantial and injurious effect on the jury's verdict under brecht but my point is that you you have a bad you have a vegetarian struction then you have you have the the prosecutor misrepresenting the state of the law and then you have a jury note that comes out not that was the next point i was going to make that really underscores the prejudice you have a jury note that comes out where the jury is confused and they want to know they ask  line six seven eight from the erroneous instruction and those lines are under the law of the state of nevada any sentence imposed by the jury may be reviewed by the state board of pardon commissioners the jury's first question is do these lines apply equally without possibility of parole sentence obviously and is there a minimum time served in each case and the answer would have been ten years if you have life without the possibility of parole but the answer to that is a little more complicated in a life without the possibility parole first of all you have to be you have to get your commutation you have to go to the pardons court and the pardons board has to say you are now going from like without to life with the internet at a law if that that but then when you couple that now i think if you look at california versus ramos you can you can certainly instruct on the availability of clemency but it's got to be accurate you know the jury cannot be confused by this the jury in this case was asking the correct questions the jury was wondering about this they were not told what i've just explained to this court everything they deliberated for thirteen hours judge and i think they sent this question out there only two choices were life without and life with we're talking about a guy who has only prior conviction was a dui thirty two year old man who had lived in this little town of dealey nevada his entire life twelve years he had he had was employed at the time that he'd been employed for twelve years he had three children i mean the jury didn't hear any of this the jury didn't even hear an allocution heard nothing and that they were concerned they spent questions that they were concerned about what is the difference between like hindsight maybe something else could have been done does it mean that the be i don't think that that statement by itself would lead the jury to apply the instructions in a way that violated the constitution when you look at the cases as a whole how was i'm still a little confused how it was handled but by the state court counsel says that it was decided by the supreme court of that on the basis of their not being plain air i had from reading the briefs and i didn't follow it through because i thought there was no issue on thing i've been drinking and when i woke up and i found the gun on the counter in my trailer but her body was found in my pickup truck and his theory was that this was suicide now  the record shows that the wound inflicted on the victim in this case what you could stand up through the top of the skull anyone who had done it to themselves with would have been either killed instantly or unable to do anything such  important to our decision but there seems to be a difference in a point of view or not a curiosity i think i'd better ask it now and that has to do with the polygraph and evidence as i read your brief you defend the now sort of i don't have to read the whole record to find out which is accurate can you tell me what happened on the polygraph evidence in terms of the videotape that the state moved to introduce this characterize apologize but however that was something that was once again part of defense's theory because they wanted to show that mr davis was cooperating with the investigation by allowing  by the introduction of the videotape that would allow that information to come before the jury but that mr davis would not be subject to cross examination i think that was the purpose of that so what happened thank you i think i can clarify a couple of points first of all just with regard to the the videotape and the polygraph evidence that the counsel was correct that the videotape was it was proffered and introduced by the state and the videotape showed mr davis saying that he would take a polygraph just put me on a polygraph that kind of thing and then he changed his mind once he once he was advised by counsel what happened to trial was detective collins referred to it after the videotape was played he decided that that was going to be consistent with his theory what he did do it without having to put davis on the stand what he did not do was move to redact and the discussion of the polygraph evidence judge while it's like think i can clarify prosecutor exacerbated that problem by in his closing arguments reach you know miss referring to the statements that i made and that's in the excerpts of record at page five sixty one six zero five so it was kind of folded into that instruction at trial it was not preserved so that the court didn't get to that and the and then the downstream court opinion