i'd also like to talk about the instructions that reveal when they were that were not given and i would like to talk about the exception leon exception to the search more requirement in this case it's talking about the first issue and that is whether or not the motion for acquittal should have been granted i think i can i like to combine that with just some of the facts of this case because i think that the facts as they happened jerk not even a jury question i under the facts of this case i really do not think it's a jury question ok and i'll go ahead tell us why why you think so i think first of all these people leon farley and and leslie will keep on that morning went to standing rock to the casino up there they had been going together since september of two thousand and eleven they were up they were they went up there and then they got back about him thirty that day i think it's important to understand that liam farley did not know he'd never talked to him he'd never never had any communication with him and the government in this case tries to set up a scenario where liam farley the fight started there rose that was the allegation of the government that he had called him like a pervert or something in there while he was in the house but leon farley indicated when he testified and the the important part of this is your honors eaten did not martin eaten did not remember anything that occurred in that trailer that night after he entered it for the second time he entered the trailer for the second time and that's when he locked the doors and waited for them to come home what about the kicking of eaten in the head with the boots of barry believe that why isn't that enough to it because even if the jury believed her this was it this was a one chick deal as the fight was entirely over that night as they were what leslie oaky said that he kicked out her there was no there was no testimony from any medical doctors that this could have come from any kick to that his injuries could have come from any kick to the head  what about the blood on the boot the blood in the boot there was a one that as we know leon farley broke open the door to get in the house after this lady eaton's blood on the whole of the toll of one boot and if you just take a look at those boots you will see that those were the most used boots you've ever seen there and could hardly have banned any kind of a softie behavior with those particular boots and there was no showing that there was any contact and we know  had loaned leslie oaky his car saying that he would come back after it on april first this was not a perforce this was march thirty first day before that so  eaton goes comes to eagle butte in and starts looking for her and looking for the keys to the car he spends all day practically going around to different people who he thought would know where she was at he first went into the house which constitutes a burglary there's no question about it looking for his keys ransacked through the house left and man for about three like three hours later at nine o'clock at night come back and told his per the person that gave him a ride there that he should he should go home and he was going to stay there so he goes in her trailer and locks himself in the trailer and and watch the doors and then okie and and farley come home they know that the door was locked because she said it was the view she usually locked the door she goes in the back room in the room when joe he helps her in she goes in there that it's dark out this is a dangerous part of town did she not have her kidneys she didn't have her keys was in their testimony that she left it open there there are and there may have been some testimony as to that that she left it open but that would have cut that w justify him walking in her house and not only once but twice being in the house locking himself in turning off the lights what's any of this have to do with us whether there should have been a judgment of acqui self defense i think i mean what what what was fairly defending himself against charlie was funny was defending himself because when he went into the house after he broke the door i broke the glass off of the tree your house door reached in hurting him he goes in there and he's attacked by you i mean this is a person at that that that has a right to be there in this house was the testimony regarding the attack and what what what testimony or evidence was presented as to what eaton did to farley first ok they went in the house the first evidence is what happened between oki and eaten eat eaton did not rebut this he did agree that he was in the house unlawfully and so there was mutual there's no question but there was a mutual fight there between eaton and farley in this particular case so when you look at it like that i believe that no reasonable juror could have found that that leon farley was not this was a classic case of self defense i submitted i like to go on to the instructions in this case i submitted an instruction on defense of your home in this that in this case clearly sets forth the law by the common law and and the longer the state a south dakota that if someone's in your house aren't committing a felony upon someone who has a right to be there or by one who illegally trespasses you can use force to to resist the commission of the film needed to prevent the trespass that was submitted it was not given i submitted a request for an instruction on the fact that you're not required to retreat which this court this court has has approved in this that were not given in this case the government really doesn't does not to address that issue in its brief i think it's clear that that is a proper instruction  that if that is reflective of the common law federal common law the in in country statute does not prevent that from being given i think that the assimilated crimes act would would would would justify given that instruction because there is not any federal statute on that on that particular issue which issue the issue which of the three if the instructions on protection of your home but was in his home was an assault but he had a right to be there and under the common law that's if you have a right to be there you have a right to protect that that home what's your best authority for that the south dakota case talks about i mean the south korea statute doesn't put it in first of all that it may be there first of all it doesn't make any sense for one who's has a right to be in a home who's a costed by someone to say oh my i can't protect this home so i better not you know i better not defend myself i mean that's just not a very i don't think that's a logical x exception to the right to defend your home and  being in that position even under south dakota law and the statute that you've been talking about i don't see how that would value all the  didn't well it wasn't the testimony of miss oakley that she did she didn't want to allow him in the home she was fearful that he was angry that she was fearful of what would happen be he inter government led leslie oaky in this case she was mostly the testimony of mr hanssen but she said that she tried to get him to leave the house through the back door but he would not do that he pushed her out of the way so that he could not go out the back door but what response of the judge shepherds ok the rushing away oh yes did you break did he break the door get in the could get in like into the trailer and unlock the door so the farley could come in he was standing by the door waiting for her to go through the window come back open the door so you're saying that ok did not testify that she did not want to open the front door because she was afraid of what would happen if farley i don't believe she did testify that i am an honest defense of property what what  facts or or other than the fact that mr eaton was there at the home justified giving an instruction like that if we assume that it's a proper instruction what was at risk within the property of the home that but he did rule that it was that that was in a civil under the good faith exception if you look at the affidavit in this case and you look at the exceptions that i in my brief to the application of the leon good faith exception you'll see that that affidavit was wholly insufficient the good faith exception was intended to pertain to technical  had been his girlfriend but testified that the two weeks before this a had broken up and they were no longer together she also indicated that they they weren't  but during the second day of trial the two met at the bowling alley in peer where the trial was talked for two or three hours drank and went home that night to a motel room together and slept together he was about two fifty and about five foot four or five foot six in that range this is a case where it was serious enough that we filed a complaint right  away instead of waiting for the grand jury to say it and then when the next grand jury happened in hindsight i'm very happy we brought leslie okey to the grand jury and  she gave sworn testimony to degree in front of the grand jury now her testimony at trial changed or at least her attitude change she was very has event to about what happened at the trial and we would often have to remind her didn't choose to say did a grand jury and then she would she would agree she would look at the grand jury testimony and then make the emission add that that's what she said so even the trial judge talks on the record a couple of different times about how reluctant leslie oaky is and i might not show up on the record because you kind of had to be there to see or hesitation your body language that type of stuff but he come in and out in regard to that there are a couple of facts that i quickly want to turn the defense counsel again mention the knife there were pictures taken the night that this happened of the area of the floor and there's no knife there pictures were taken and it was searched three days later and then there was there was and i found in that in the back bedroom by clearly even mr butt showed up recognizes that there is no evidence and even the defendant didn't claim that there was a naive involved and by mistreating there's there's been conflicting testimony in regard to the this case that of the defendant has made the argument to the jury and to you on appeal that sixty two year old murder need in is a stocker a burglar a dirty old man an aggressor in the fight the evidence just does not support those series if we go to the actual testimony right related to the o'keefe said i was startled by seeing merton in but i knew him he was a friend of mine i was not afraid of him she says i don't recall screaming and did i'm not a screamer i don't scream only farley made the claim that she screams the lights are on both in the kitchen and in her bedroom and it's a tiny tiny trailer so the lighting is all there she clearly recognize who it is and she says she is afraid she's afraid that burton is in there a friend of hers and she has her sometimes boyfriend at the front door knocking to get in she's telling sixty told two year old murder you gotta get outta here you gotta leave you've got a crop crawl out of this tiny little window one in the back bedroom on the other side of the trailer murder needin says i'm not crying i'm not crawling out a window i am an object i'll just tell leon farley that i'm here to get my car keys and that's what there's no question that was what he was there for to get gets i'll just tell him that and they're having this discussion in the bedroom that would be on the on the west side opposite from her back bedroom she's she's gotten him all the way over kind of where the back door is that's where all the blood first is the first group of blood is there so when farley breaks in he has to go from the front door to where merton is she says that  the first thing for he says pervert what in the world are you doing here and how did you get in here you pervert so is there any evidence in the record of any actions on the part of the first again your side and he says i'm here to get my car keys and then her testimony is i don't know who started the fight i don't know how the physical fight  right right but certainly the implication is because he's the one angry he's the one that breaks in the blood is over where the two are when she's trying to get him out of the house not w farley enters the house and so yeah i mean the argument we made was the logic the facts of this case are logical he's jealous and they say there's no this these are small these are small children and and has a contact with her he clearly knows who murder needin is so the lights are on him there and the evidence that he calls him a pervert he doesn't say who are you what are you doing here it was a street person it was a burglar who is he says what do you you pervert what are you doing here so that's clearly evidence that he with the police officer when they go to the hospital the point where the hospital tells the police are sick get him out of here we're not going to treat him when he comes back after settling down it becomes aggressive to the point where the doctor is going to treat him  the other key is is when i did ask leslie ok and this is two different times in the trial i asked leslie ok i said when when farley is knocking on your front door you know wanted to get in why didn't you go over to the door and unlock it and she says i didn't want him to come in and i did then what because i didn't want him to do and then she kind of stopped in her trailer was she knew there was good there would be a confrontation and this is the person who knows these two people the best and the person that she's worried  is farley number neat she says i was not afraid of him so those are sort of the facts the other thing i would say if you have unknown intruder you take take his story to be true he thinks it's a burglar he thinks it's an intruder well after you've rendered him disabled and look at exhibit thirteen and i bring that because it'll show the kick blood spatters the that show where the blood is after you've rendered him disabled you call the police you call them and say we had an intruder that entered our house he doesn't call he does not initiate or called the jury i'd be interested in which had to say about the instructions there were three requested as i understand it defense of property no duty to retreat and no need to show that the intruder was armed brief talks about property in a page or two in doesn't mention the other two and i will come to that i looked at that too last night let's just start with that in regard to the instruction about there's no to do duty to to retreat and self defense is available even if the person injured is an armed this court is dealt exactly with that it issue in the united states versus walker and it's found at age second for sixty one and in that case the district court gave an instruction almost exactly like our self defense instruction and this court said that that was sufficient it told it told the jury sufficiently about it it gave it gave him the opportunity did make the argue those arguments to the jury and it is exactly on point with the with the two instructions that he talked about you know those were kind of intertwined with in the proposed instructions those no duty to retreat and that self defense even if it's an armed their kind of enter twine with this protection of property instruction they were offered individually now the district court could have you know cut and pasted but they kind of got caught up with the w this isn't his property he did not live there he lived in the plant several miles away and mr pritchard has said that he used to live there while there's there's no evidence in our records that he used to live there even  but the more basic point is the owner of the house did not want him in there he's really the only one who broke in who broke something to get in so he factually he does not have the right to defense of property secondly it regard to federal law hold on a second on that did he say that he was invited in by ok he claimed she was yelling and she was yelling help i see so he  come in come in come in or if you believe his story then did he have a right to be in there to assist her well you know again a person very much associated with with him told the jury she tell it's one witnesses version that you say is not credible you don't think that's enough to get instruction if the jury believes well even here because testimony even he didn't say she said come in i mean she she yelled and screamed and i do remember that he said she yelled for help but she doesn't see come in there please come in even if you had a right to be in there is that enough to get an instruction under this well we have you know this court has seen assault serious assault statues off the indian reservations for years and years and years and i look through i look through all those cases  chorus if it's your home or at least and someone is a trespasser and won't leave you have the right to use force to remove him but it's not but this is a federal statute and also the with the federal and federal common law does not recognize protection of property it's the authority for the well there's no those no federal case the only federal case we could find to show that the defendant but it also says that defendants proposed instruction of defense of property was denied by the district court and now is proper and equal non indian would be charged with the same offense he would get the same instruction he would get the same self defense instruction in regard to this case the claim that i'm not an indian would get the benefit of south dakota laws is  completely untrue that's not that's not true you'd have to be in a south dakota court to get the south dakota instruction that he proposed in this case no person in federal court indian or non indian gets that defense of property instruction nor is a recognized in any case that i could find federal  but then the day or two after that he had to go to training in peers of the court now he recognized that he wanted to get physical evidence the blood that was at the house he wanted to get  best but even our federal magistrate our federal magistrate said that the affidavit had probable cause in his recommendation and board so even a federal magistrate looked at it and said it was marginal is very marg possibility to say that detective a reasonable tribal detective would think it was also that the standard well if it we certainly had training with their match after after this k regard to please approach that case you didn't make it and it would not give that instruction but the reason that it refused to give it was because the fact didn't justify it it doesn't really say one way or the other  i think you could argue that it implicitly endorsers the fact that there is a federal law well look at it thank you very much the case is submitted in the court file an appeal to course please call