the fact that he did not strike when you're describing fist fight you're talking about one person video yes however that individual did it sent to hit joan powell started the fight and survivors at that moment believed that he was alive that power was alive thought that he was three what does it tell us that he thought it was like that tells us that that just did not have the intent to kill that why well if he had been sent to kill me there's a date yet because survived as testimony is pretty much this was really not a a fight at all it was a one sided sort of situation in which the defendant struck the victim several times and that when he was down he was holding him with his foot and his neck and then one survives just finally said that's enough he stopped that's enough and of course the medical examiner i had no knowledge that his actions but practically certain to cause hols death well i don't know that mean this is where we're looking at what the judge did whether there's any evidence that supports his conclusion that he did happen now pledge that by stepping on someone's back that you can cause great bodily harm yes well but that is not what did here he never there is no testimony there is no evidence in the record that he stepped on his neck now would you say that you mean there's no direct evidence one is that in the record just to the time he called nine one one i was certain as to exactly exact time there was one a look at your recitation of the facts in your brief you you talk about approximately six twenty two for the arrival of the paramedics  there was no testimony from survivors as they got the a sighting at six twenty two scanned we assume that that was approximately when the nine one one call was made yes ok so we can infer then i guess that possibly this fli but you're still insisting that this could be mutual combat it was mutual combat if you find the knowledge present here i believe that we have to take it one time one second time here and try to get away i mean when the could know we're going to have to find some evidence of the record thirty three times to we're going to have to find some evidence in the records that we can just point to specifically to overrule the trial court who if you admitted his discretion in this particular case i mean he's have these four components right yes which one of those components do you suggest the trial judge misinterpreted all of them i would say that it's obvious from the record that he stand for the proposition he says that it's very unusual for a court to find first degree murder when it's only combat involving fists look again that's the problem he wasn't jones was not a professional boxer we have refute the claims raised by the senate and that's clearly what has occurred below there was a great deal about conservation raised as to whether or not the defendant had knowledge was practically certain as to whether his acts would cause harm not the acts in question all it's got because he believed the victim might have been a burglar yes if he might have been a burglar he was burglarizing jones's apartment wasn't because that would have been the interpretation but that goes directly to the questions with regards to well if you're crazy if you're trying to hold down a guy you suspect of being a burglar is that mitigating in any way no because this is not holding somebody down holding down the context of this well you know depending on i mean that i'm not is suggesting be that mr jones comes home to us home that he shares with his two children that he has with the woman who has just had sex in the apartment with jones had an idea that that it just occurred in his call her home in his home where he has his two children that he raises but there with this woman she testified that they had she and brian jones had an ongoing relationship it wasn't that they were strangers but she's having sex in this apartment his apartment with another man and then this mr jones guilt comes out of the relationship with somebody else there is absolutely no testimony that that is what occurred and in fact i'll take it back to the closing argument at all nineteen counts are his the defense case the other alternative if he didn't if he wasn't complete if he wasn't aware of any kind of a sexual motive to the presence of the victim in his apartment what were the bend his other possible conclusion as a result of finding this guy where the  any explanation suddenly out of nowhere comes this rather large three hundred now many pounds at the victims three hundred forty three people just emerge from the bathroom thinking that the only two people in the apartment are you and your girlfriend then you come out and there is this rather large guy there's a large man attempting to exit the park and that is what's he right to defend and same thing to execute a park and he couldn't get the door open because he was apparently according to the testimony calling in when he should have been pushing out what so there describe recklessness is really going overboard reckless this is going overboard coupled with and again the language and then they go off the board here going overboard i mean equally characterized as is the height of recklessness you know the light of all the facts and and when someone's in his home that doesn't belong there and he reacts and he ends up you know trying to  contain him and keep him there and then he holds him down with his foot couldn't these facts equally support that recklessness you know because recklessness does not entail the entire aspect of physically battering somebody trial and they have asked for involuntary manslaughter instruction you as the state's attorney would say there was insufficient evidence to get tender that instructed the players that would have been here i would have been the are you think you would have succeeded the people don't challenge that that is the current standard was however in this case the notion that the people can see the weapon was not used the only weapon that was used was the bennett's foot which despite seated the victim again the notion that somehow it's his decision right as i was to submit that this was a reckless act on john's part believe that you have it shows that he came inside he found a man in his apartment there was some suggestion is that the man told him that it was his