thirteen thirty eight fifty five thirteen thirty eight fifty seven marco lanfear versus warden ross correctional institution oral argument not to exceed fifteen minutes per side miss price for the responde of the warden i submit that this court must reverse the decision of the district court granting a conditional writ of habeas corpus requiring that the water release mr langford unless the state provides him with a new trial on the charge of murder the warden submit that the state need not give mr langford a new trial because this first trial did not violate his right to due process langford argued and the lower court found that the jury instructions given by the trial court to the jury were both ambiguous and unconstitutional because the instructions fail to make it clear that a defendant in order to be to convicted of complicity in the commission of murder must have acted purposely that is he must have had an intent to kill the state court of appeals for franklin county however found that the definition of purposely was before the jury for this for its consideration on that charge what it in it for before the jury f to the person who was the shooter when you look at the instruction if it relates to that either in the better and a better or here the person who is charged with complicity if in appear that it is clearly identified or it doesn't clearly instruct the jury that you must separately find that that person had intent and if you argue differently show me where that beyond a reasonable doubt that the defendant aided or abetted another in purposely committing the offenses of aggravated murder or murder and that is the language that langford says  ambiguous however the state court found that that language could be read either way it could refer both to the aider and abettor and the principal shooter in other words the language says offense of aggravated murder it can be ready the way and the state court of appeals had no difficulty in seeing that it could be applied to both the principal shooter and the ada and a better and in this case  would like to remind the court that mr langford was charged both with murder as a principle shooter aggravated murder and he was also charged with complicity all those charges were part of the charge and his focus is on because they did not as a group find there was prior calculation and design even though a question from the jury indicated there were some individuals on the jury who thought that he could have should have been convicted of aggravated murder that there was enough evidence to show prior calculation and design so there is some debate about what the jury's verdict means what was there also of firearm charge there was a firearm specification on both charges cation ok yes we have abated murder with this mess that would have made it aggravated ok let me ask you this about the discussion at court obviously think you were not up to the trial attorney and i guess mr debtor dam was on his side so all ask him but there was discussion about putting in the words purposely and knowingly are you familiar with that part of the argument in other words in their brief it page thirty eight and it is a correct recitation of the the argument both mr gadar dam and mr low said you have to insert the culpable mental state and then go into the aiding and abetting language and mr low says yes we should put in purposely and knowingly and i take it that's what actually happened because that's the words purposely and knowingly are there is that is that correct it is in the definition of purpose complicity the court gave six paragraph definition of complicity and the first paragraph was the definition of complicity which included the word purposely committing the offense of aggravated murder murder that the definitive not how i have that language that's what we know the way it came out but apparently those words were in fact put in by agreement and is the whole argument whether they were put in at the right point in the sentence instructions after they had been corrected after this discussion of the language he argues now is ambiguous and it's because of the nuance of the word in purposely committing murder if he had said he had suggested some other language maybe it would have been crystal clear in his mind but at this point after the fact he seems to have looked at this language long enough to say the jury confused individuals that they might be could have misunderstood this however these instructions go on to say just a couple of paragraphs later a common purpose among two or more people to commit a crime need not be shown by direct evidence the word common purpose clarifies if there is any question that in fact both must have the same purpose this is within the six paragraph definition of complicity and it's the last six paragraphs of the instruction so that even though the first paragraph defines complicity as a purpose folk killing the third paragraph goes on to say the complicit here and the aider and abettor want to simms must have a common purpose the common purpose among two or more people to commit a crime need not be shown by direct evidence so that if there was any ambiguity in that first paragraph it certainly would have been cleared up by reading what are the circumstances surrounding the act from which we can infer a common purpose well there was a lot of act actions that could have been used  infer the to key witness was nicole smith chics testified that she was among the group that did the killing she did not have a gun and did not participate but she was with them prior to the time they went over to fair wood and shot mr jones and she was with them afterwards all over into they they shot mr jones out my understanding and i'll again ask your adversary that there were three people who were all shooting but we don't know for sure which one actually fired the shots that killed him is that fair yes one person knows who had the three fifty seven luger and mr langford later it made it that he was the one who had that gun and fired the fatal shot he said that to isaac jackson when he was in prison on another charge in the west virginia but then that was disputed at trial i mean as to whether he actually said that and as to whether it was the truth well there's always a dispute about whether witnesses telling the truth or not i think the jury the operator credibility was the one that made this call that they believe some of the witnesses are all of the witnesses and witnesses and in conjunction concluded that mr langford was guilty of murder they charge they convicted him on two counts of murder the evidence was according to mco smith that mr gu mr langford had been beaten up by marlin jones and the fair would in livingston boys they didn't use the word gangs in the test  transcript but they were drug sellers and the detroit boys were also drug sellers there was a territorial dispute and mr langford the defendant was beaten up badly his face was bruised and cut he said to nicole i'm going to get them he said it more than one time over a period of weeks and on the even question they all gathered at the fair would and he said we're going we get them as in tonight she said they loaded their guns they came with guns they loaded their guns and they walked to the house next to seven seventy three fair wood and seven seven three fer what is where the livingston and and fair were boys hung out so they went there they walked through the alleyway two of them propped up a rifle the other two then used handguns and the three of them began shooting they shot at five or six individuals and marlin jones was killed mr langford was the one that had a revenge motive toward mr jones nicole smith could not say definitively which of the three young men had stu smaller handguns she did say that she thought mr langford had the three fifty seven luger at one time but then she said she wasn't sure and she wasn't sure whether dante the other individual that had the a handgun had the three fifty seven look or how ever the three of them were shooting and mr jones ended up dead now the fact that mr langfor later confessed to being the shooter had to have been based on nothing more than knowing which gun he had there was no other way for the detectives or anyone reviewing the seem to have determined that so admission is the only admission on record at death defying anyone as the actual killer now he also admitted to another inmate jason arnaud that he was one of the three that was doing the shooting nicole smith said he was one of the three but in all of his statements to the police he denied that he had a gun he denied that he was the shooter and first denied that he was even in town and that i want to go back to because what we're looking at with whether or not the instruction the it says the common purpose among two or more people to commit a crime the crime being discussed is complicity to commit murder and complicity was defined as aiding or abetting another and that means taking some action to cause a murder and so the common purpose would have been the purpose that's defined in the murder charge as well as in the acronym for element that that the specific intent element that that that is sufficient to communicate this or going to this to the jury it is in all the charges for murder complicity to murder is another form of theory of murder but all the charges refer to an intent to kill and they were they were put in there only once in the first instance under aggravated murder they weren't repeated on the murder they weren't repeated under complicity however let me point out to the court that we're not actually here to determine whether or not the  jury instructions were clear but only whether the state court of appeals review of those instructions was incorrect or on reasonable the district court had to defer given that the kind of a distinction without a difference no not at all because the state court said there's nothing wrong with these jury instructions they are not ambiguous i read them and it says to me a person who aids are better another in purposely committing a crime i mean that's standard difference is that under ed a lot of times we can say the state court was wrong but it wasn't unreasonable in units that actually and that is the standard may seem like a an odd distinction but we do that all the time i right yes and it is it's a distinction that does make a difference especially in this case because the state court looked at these instructions and did not find them to be ambiguous has to be unreasonable under established supreme court precedent right not only  does it have to be in an ambiguous language but it has to be and reasonable target interpretation of the language the interpretation of the language is that according to the state court it does refer to both that there's no ambiguity but if there was any ambiguity two things cleared up one was the following paragraph referring to a common purpose and if that were if it were the case that it only referred to the shooter then the common purpose would have made no sense so a jury of reviewing these instructions would have had to ask themselves what does this paragraph me in light of that paragraph and therefore would have had to say well a common purpose between two or more people that must require them to have the same purpose and so the instructions on their face w additionally the prosecutor referred to a criminal in tit for complicity and so his remarks acquitted simper supreme court president can also clarify jury instructions that are alleged to be ambiguous i mean that you're the judge always tell the prophet tell the jury what the prosecutors it's not binding on you it's not the law the court is going to give you the law and in the faith on the stand the prosecutors argued prior to the court giving jury instruction for how the prophet could have argument before the instruction for clarify well because he told the jury what the instructions would would have and he said to look at the instruction on criminal intent when he was talking about complicity he advised him on the law he did not provide evidence that's what the jury trial court will advise the jury not to take as evidence that the prosecutor can't evidence to the case his statements about evidence but his arguments on the law are to be considered in conjunction with the jury instructions and he didn't advise them on the law he merely said look at the definition of criminal intent when you get the jury instructions on complicity your time's expired and i wanted to reserve five minutes for rebuttal on the  may please the court court gotterdammerung behalf of mark langford there is case law on this very issue from the u s supreme court in re winship due process requires proof beyond a reasonable doubt of every fact necessary to jury and how did the instruction get to be the way it was so could you address that absolutely it would have misled the jury because and i think judge donald was getting to that or are asking that question is it has to occurred six words earlier in the sentence so it read the defendant purposely aided or abetted another then it would be perfectly fine i think it would have to be under the revised code twenty one twenty three zero three no person acting with the culpability required for the commission of an offense purposely purpose to kill and words to that effect which is similar to what the court said i'm not prepared to say what the court said would be the exact wording in the discussion that in the trial transcript the twenty one ninety three where you and mr lowe right seem to be discussing exactly this and he says well we agree then we put in purposely for aggravated murder and knowingly for  right and you say yes now i i did not find in the record an earlier paper draft but am i right that what really happened was you had some draft and then whoever the draft or old him a draft or was put in as you agreed the word purposely the word knowingly and now we're arguing about whether you put it in the wrong place i mean when i say you i mean collectively you it's either that or your honor quite frankly when i saw this from a shocked because my intentions in that phrase was to have purposely preceded aiding or abetting a dam but you get into or there i agree and at page twenty two twenty three you're focusing on exactly that and you call his attention to a typo about committing versus committed which is in the very next sentence right so obviously everybody is looking at these words and nobody notices that oh this is to be a horrible misinterpretation because it's six words different in the sun and i agree that may have been what happened but it is a horrible mistake your honor because did the prosecutor say anything about oh you can convict this guy if he you know drove the man there and that's all you need the prosecutor or the the warden submitted about six pages of closing argument the prosecutor's position is that he was the shooter they had the two snitches saying he's the shooter so while they touched on aiding and abetting it was only very briefly and they never said he has to have the purpose to kill as an aider and abettor never said that in closing argument his shooting i mean there's lots of evidence that he was shooting he says he did it but there's a lot of evidence that he was shooting then how how is how can you say it's it's it is a reasonable likelihood that they thought oh he didn't have a common purpose the jury the jury verdict tells us everything the gun specifications he was acquitted on that means they rejected isaac jackson they rejected jason carroll that at least one person there was a reasonable doubt no had to all twelve acquit on the gun specs that means he didn't have a weapon he didn't fire a weapon so that's why the aiding and abetting is show important the law and compromise verdict that it doesn't affirmatively mean that it means the jury decided to not convict on that but it is a reasonable interpretation the evidence is they believed mr langford statements to the police that he was that he there made a call about the guns he was near the scene or but not that he ever had a gun and went with them and shot that's the only way the jury because the gun specs says you had a firearm on or about your person and brandished it and or shot it they the jury acquitted him of that so they had to believe he didn't do that that all he did was he was there with the individuals and did one of the two or three things that he said to the police to detective reefs that's why it's so critical that the aiding and abetting instruction in this case not maybe in  any other case not and that's why we agree hey this is different but that's why when the magistrate looked at this in the district court looked at this they said this is so important under these facts because of the jury verdict and  would disagree with the prosecutor there's no credible evidence that no physical evidence that he fired the shot that killed the individual in fact his statements were that he didn't have the three fifty seven that curtis stokes had it so again well when  you say that that implies i didn't have the three fifty seven i had the twenty two what they're saying is that he when they before they left the scene there  individuals had some discussions and the question is whether or not my client indicated he said all they had was a three fifty seven so i made a phone call that was one of his statements the next statement is i don't know what they were going to do i drove in the car with them another statement is i watched him go over the fence and i heard the gunshots they ran back and i got into the car with them and left i mean those were the aiding and abetting and that's the only way you can square this gun specifications twenty two i mean what's the evidence that somebody had a nicole smith said that my client said he had a twenty two my client denied having a gun or being present at the scene at all so that's why this case was was he an aider and abettor was he not there's really i submit that the jury verdicts on the gun specs and the acquittal on aggravated murder mean they didn't believe he had a purpose to kill did he have but did he have an aiding and abetting purpose i say the language has to be in front of their otherwise all you're doing is repeating the aggravated murder and murder instructions which say you as a principal founder have to have that what you're really leaning rest into law on the actual acquittal if they h d only the gun specs would that make any difference in your view it might because i think this is really this really tells you i know we don't normally have that kind of indication of what the jury was thinking but here it makes perfect sense when you look at the record they believe his statements to detective recess to the things he did i saw them i saw them leave didn't see them shoot heard the gunshots it had to be something like that because otherwise if they believe the two snitches when they found him guilty of the gun speck because the two snitches said he told me he shot so there's just no other way to look at the evidence in a fair manner i would submit that oh you can still convict him if he only drove the people there because that's really your you know your unfairness argument why is it unfair to him it's because they shouldn't have convicted him of murder if you only drove the people there with no with no purpose right but i but does the probably the evidence of the prior beating and so on right the prosecutor didn't argue it that way there he's the principle founder or you can find him guilty of aiding abetting but never said anything about they got there that's really the argument i agree it is your own counsel in going back to the instructions and the prosecutor refer to the common purpose instruction that provided or hit some light on this for the jury she read that a common purpose among two or more people to commit a crime need not be shown well that's not what she read but that is part of this or should not be shown by direct evidence that may be inferred from circumstances surrounding the act that goes on to say criminal principle offender and the common purpose between the co defendants in this case acting together as principal offenders that's what that instruction is talking about if it preceded the aiding and abetting language and said as a abettors they could have had this common purpose but you still must find according to the on the law you still must find that mark langford had the purpose to kill even as an aider and abettor that language your honor does not say mark lankford as an  er and abettor had to have the purpose to kill it talks about maybe discussions among coconspirators as all joint participants in the if in the event and there's no evidence that this jury found that between the indictment the case was dismissed and then re indicted under law vasco we have to show prejudice and we have to show that in light of the government's reason for the delay we set forth some of the issues we had a hearing on this prior to trial the detective testified and he indicates i'm in the cold case squad we didn't do anything for ten years on this case i pick it up in two thousand and six i do some searches hey i find nicole smith the same nicole smith that they dismissed the case for we presented at least they dismissed admit they couldn't find her at the reminder and i was he was unwilling to show up one or the other but we would submit that any quick and easy search over the years could have found nicole smith just as we did and we presented the evidence she was in jail multiple times had multiple opportunities for them to pick her up we lost several important witnesses during that period of time and much has been made in this record about well could they really come in and testify and i submit to you that ignores the right to present a defense so for example we had one witness who would have indicated that mark langford was several blocks away when the shooting occurred he clearly could have testified t if they had gone forward with trial nine hundred ninety five we had another witness who talked to people and knew that mark langford wasn't the shooter and now you say well how does that get in that's hearsay you're right that's hearsay so what happens is myself or my investigator goes and talks to the person says hey we're here that who do you hear from what if he says nicole smith told me the same nicole smith who comes in and testifies hey this is what mark said now i can cross examine her didn't you tell big mike that mark langford a nothing to do this or better yet what if there was somebody else who said hey mark langford wasn't there and that person was alive they could have come in and testify so again this thirteen year delay was was so prejudicial mr langford that by the time they want i'm laughing at the word purpose again coming into argument your honor the in the in the hearing we had they indicated they were not investigating the case or talks about his investigation or tactical reason and i would submit  honest about this there's no evidence they were investigating the case till two thousand and six but i don't know if i can show you where in the record it says they purposely delayed this they just for a tactical reason that they went into the cold case squad files i take it it wasn't in the can we get langford file i think that's accurate i think that's what the record shows and i think i don't know how you can ever the lead detective was either he was definitely retired he may have been deceased the prosecutor was no longer on the case so how would one ever know why they let it go for eleven years but the record is it certainly was not for investigation purposes they simply let this case right and i think that there should be consequences when thirteen years later you give a man no chance whatsoever to represent himself the people that could exonerate him or not there then you tell the jury who's acquitted you of having a firearm sorry you know you know what you don't have to have the purpose to kill as an aider and abettor i think when you look at it you want to talk to tally the circumstances as you have to do with jury instructions and with print i can delay i think i'm fine with that i think that's exactly what we should do and i think in looking at the evidence here mark langford we if i heard you correctly and then you told him hey he doesn't have to have the purpose to kill that's really not what the instructions it's just it's in a place where one could make that argument as an aider and abettor as what i meant to say that he didn't have to have the same purpose as the principals and we know the law is clear he does it is it's all about where it was positioned and it's all about the gun specs in this case it i will be brief i would like to make two comments about the ground to the one which the state appealed first of all a judge donal quoted the exact language in the jury instructions which would have left no doubt in the minds of the jury that the complicity or had to have a common purpose and a criminal intent and he had to engage in some act that carry out that purpose and so the jury instructions were not ambiguous and they certainly were not ambiguous on the totality of the circumstances which includes all of the language in that jury instruction and second i would point out as to whether or not mr langford was convicted of complicity or not the district court did not find that he was convicted of complicity the district court was not persuaded that the not guilty verdict on the fi specification meant that the jury found him guilty of complicity the district court pointed out that and united states versus powell a jury verdict should not be looked at to determine what went on in the minds of the jury during deliberations that the jurors revert it could be the result of compromise could be the result of leniency and if there is dispute among the jurors as to certain guilty in terms of whether he's guilty or not they may have reached some sort of compromise on the  specification and just agreed not to find him guilty on that so i would say that the there is no unequivocal evidence that he was convicted of complicity and so any ambiguity in the jury instructions would not really be  have any bearing on whether his conviction was fair as to the two other grounds that the pre indictment delay first of all the state did continue to investigate he did to actually talk to nicole smith when she was in jail on one of those occasions the first detective who investigated was detective added coleman and the record shows at one of her conversations with nicole smith was while she was incarcerated on some minor charges so they had conversations not