assistance of counsel arguments on my pleadings i'm going to concentrate my time on the sufficiency of evidence argument as it relates to the brief premeditation and deliberation elements of the st degree murder charge and the due process and equal protection claims as it relates to the disparate verdicts of the two more culpable co defendants as i believe these claims are inexplicably linked i mean that's two i mean there are two ways to look at this one is just looking at his case and arguing that the evidence no no reason what jurists could could ever find that any rational jury you know could convict the person based on this record i mean it's a formidable sort of it's i also understand your brief you seem to be arguing sometimes that the sort of different outcomes for for your client and some of the other people first degree versus nd is somehow violet of the constitution and just i mean maybe just as sort of a housekeeping matter  on that differential there's just no supreme court case that backs that up so i mean are we agreed that you can't get relief here on a theory that your client got a different outcome than somebody else from a different jury ok i if i understand your question correctly yes there's the two issues that i'm raising st is the sufficiency of the evidence on the fish and sea claim and that has to do with the jury's determination right the nd one is the fact that we are claiming an equal protection violation ok so if so what i'm there are two different claims you're focused on sufficiency as to equal protection i mean you for the equal protection claim and some other claims understand you're not going to focus on those today and i guess we got that cleared up but i'm not really sure how the claim got here without having supreme court authority on which you could be base well basically we rested our equal protection claim more broadly on  ok our i don't know i know and i agree with you there i mean in preparing for argument in doing this there's very little law here i can't i mean i've been looking and am i if i could find it i would i court cases to say the opposite of what you're arguing so that's i think we were trying to telegraph to you is that nd one is a pretty hard one to make so we we were trying to avoid spending a lot of time on that but we've ended up doing the opposite so you really want to you really what are you insufficiency right yes we'll get out of your way now if we sharpen up your insufficiency argument which you have made yet it seems to me your argument simply almost disregards the  better issue here so if your argument was there wasn't sufficient evidence to show that he actually fired the shot from the handgun example because of the problems with the bullet found in one of the  ducks or whatever it was all that's well and good but the jury had seemed to have more than enough basis here to show that he was an aider and abettor as that term is defined in a michigan law so how do you get around that what we have attacked in the sufficiency argument is the intent to kill we know that he joshua tackett rode in the van with the other individuals but we also know that he wasn't there at the st incident he agreed to tag along he was there but the fact that can you from the evidence presented in the st trial show or in the trial show that he had an intent to kill these people when he didn't mean we start with the fact that these people shot up you know the trailer they read a lot of rounds into this trailer correct it's not a big trailer you know it's not like it's some five bedroom law cabin the rounds are flying through the trailer i mean can't a jury infer from from just the amount of metal moving through this small space that they did intend to kill people in the basically what this jury could infer is that these actions were highly negligent it was determined from the testimony that this decision to shoot at the trailer was made at the very last minute they were going to come and have been injured earlier a bent mr tackett just basically tagged along he did not fire and automatic weapon into the trailer there's no testimony that he did and yes my point is the number of rounds in the nature of the structure would seem to support an inference that they meant to kill somebody there but did mr pickett mean to kill somebody that's going to shoot judge makes a point about it or a better yes i understand and that's a very difficult hurdle for defense counsel when you've got that theory and the other the other problem is reading michigan law they the court seems to be pretty clear that you don't have to have is much evidence as one might think you had in order to infer an intent to kill speak in terms of minimal circumstantial evidence is sufficient to establish a defendant's intent to kill there does seem to be at least some quantum of circumstantial evidence here is that with that but really what we're arguing here is that mr texas actions or the neither side seems to say the case of the michigan case of people versus problem and i'm springing this on you but are you aware of that case i would have to review it your honor so people versus brown deals with shooting up a house drug house ok and what the court says is evidence that defendant fired several shots into a house at a time when people were likely to be present and fired the shots quote below the windows and quote i had a height calculated the reichen occupant was evidence of an intent to kill that seems to me to be persuasively what happened here and it may well be that your client didn't fire any of the shots but he certainly took steps that seem to have encouraged and aided abetted the people that fired the automatic weapon under under facts that seem precisely the same as people vs brother but also included within the nd degree murder instruction which is a lesser included offense in michigan their intent is st nd degree is intent to kill intent to create great bodily harm or reckless and deliberate indifference to any actions that that would cause and under the facts of this case that intent is clearly satisfied and we're not saying that it is not but it is clearly satisfied here as opposed to the specific intent to kill that's required for for st degree murder and particularly on the part the st degree intent it is an intent to kill an intent to create great bodily harm is opposed to intent to murder from st degree and in also and more importantly under the facts of this case is  showing of negligence and extreme disregard for the consequences of their actions and that's what shouts out loud and clear in this case this was a stupid incident they decided to avenge an earlier interaction which my client wasn't even a part of and they decide to come back in and fire around at the trailer right before they get there one of the  the window is out presumably to more easily shoot if he was going to shoot he provides a gun that he provides gloves or socks to the other folks that you claim are the real perpetrators here again isn't that all eating and abetting it that you know as they were approaching this trailer park been pulled over and they because they saw a police car and that's when they did one of the co defendants said let's shoot at the house that action of simply pulling over to avoid detection they would have done that even if they were going to just simply destroy the property they don't want to be detected they've got guns in the car and they've got you know they have this this this this scraggly looking van with the back window shot out there are there a target for police intervention so sure they're going to pull over to try to avoid detection but that what we're arguing here is simply that that in this particular case all these defendants were charged with open murder which of course in michigan means the jury or the fact finder could go up or down between st and nd degree and basically what we have here is the same trial i'll be it once in front of a juror two juries separate juries but the same facts presented one trial and the district court are the circuit court judge sitting as a finder effect and basically what we have here is after the bench trial circuit court judge does due concise statements of facts and conclusions of law any he finds that as to be co defendants the same killings were nd degree murder now you juxtapose mr tack its actions and those of his codefendant sykes and tarred and that's what you find i mean it's now you're morphing into the inconsistency because a jury finds one thing and a state judge finds something else in connection with the bench so that doesn't mean there wasn't sufficient evidence for the jury do of what they followed it just means the state judge viewed it differently i respectfully disagree i say think that there's insufficient evidence as to the premeditation and deliberation aspect of st degree as to mr tackett and that's my claim that that intent is actually intent for nd degree is correctly found kind of in her related the inconsistency claim because it appears that mr tackett is claiming that because the verdicts were inconsistent because two co defendants were found to be guilty of nd degree murder as a matter of law that means that there's insufficient evidence of st degree murder here and that is not the law as your honour's have pointed out inconsistent verdicts are constitutionally tolerable the issue here is and the standard for sufficiency is whether the state court reasonably determined that a rational juror could have found the intemperate quired for st degree murder and i think here we have plenty of evidence of intent we have plenty of evidence of premeditation and deliberation and evidence that mr tackett did aid and abet his co defend shooting up this trailer and so i think that there is more than sufficient evidence of intent and the trial court standard in adjudicating his co defendants guilty of nd degree murder was beyond a reasonable doubt and that's not the standard we have for sufficient or what troubles me is i'm looking at michigan law that talks about what it takes to show st degree murder so this requires more than mere conscious conscious and difference to the likelihood of death that's people  them and then in other words a very quote a very high risk of death intent is insufficient for st degree premeditated murder of the defendant must have an actual intent to kill that's people the  have suspected someone might be inside course we know two people died in fact but you know what how do you get around this these cases talk about a very high risk of death in ten is insufficient for st degree murder well i think i will concede that a rational jury could have found nd degree murder here but a rational jury could have also found st degree murder and they in fact did find st degree murder and we have evidence that the lights around in the trailer we have evidence that the trajectory of the bullets was aimed at where these lights were we have evidence that the bullets were calculated in height that would strike a human and people versus brown as judge mechanics i did earlier states that that's st degree premeditated murder you didn't cite just i did not i apologize there but in addition to all of that evidence of intent just from the location of the shots and the fact that a light was on in the trailer we did have two people that were shot in their mid back and then we have motive and then we have assault rifles that were brought to shoot through this trailer it would be different maybe if this was a brick house or something along those lines but this was a small single wide trailer home with aluminum walls what significance do we attach if anything to the fact that people versus di callus which judge accurately quoted from is a one thousand nine hundred and eighty four case and if that's where the last option seems to me you have a heavier load of beer here but then i read the law as st degree murder requires an intent to kill in michigan we're talking about what is the quantum of evidence necessary to show an intent to kill minimal circumstantial evidence so i would say in michigan minimal that as i'm understanding judge gellman citation in that case they didn't state the quantum of evidence that the quantum of evidence that's required to show intent to kill that statement of intent was that if the evidence shows actual intent to kill well i think there are elevating circumstances that exist here that it's not someone just shooting up a trailer it's not someone shooting in the gutters it's not someone shooting the roof of the trailer they the mr kept their shots around the area where the lights were on in the trailer was a beautiful stop when they were sure there was conflicting evidence as to whether the vehicle was stopped or if it was just sort of rolling by or jury could find it was stop it was stopped yes craft your honor and that there were relatively tight groupings so to speak i mean it's not just sort of all over the place it seemed seemed like they were going for were people i'd be argue that's correct your honor i wonder the day and it just so happened that they had other people that were inside the trailer when they were shooting they possess the intent to kill mr owsley and that intent then transferred to the deaths of the other two my sister counsel said that you could form where they thought they had the specific intent and they were going to come back and kill mr owsley based upon a previous alter cation that day mr tackett was not present for that altered cation he was by all accounts he was not there so whether mr tak could have the specific intent of the other two co defendants who were there that this has not been has not been proven i didn't understand that argument st and i don't understand it now tackett doesn't claim that he didn't know why i got in the van and he didn't know that they were driving tips a landing and he didn't know that it was because of an earlier alter cation he knew all out when he agreed to go with them  he knew that they were going to avenge an earlier old patient that's correct but what difference does it make from a practical sense whether he was a part of it or he's going along with his buddies to help him move in he was going along with his buddies to avenge destruction to a van he was not going along to kill clint owsley i think that is a practical application of what we're saying here if so if we accept that and i think that's a probably pretty reasonable argument under the facts at some point it seems to have changed from avenging the window by damaging a trailer to shooting up a trailer at night into the area where the lights are on height that's designed to hit people so something changed but that was not a contributed to mr tackett one of the co defendants said let's shoot at the trailer mr ted he did not shoot at the trailer by all accounts he had a handgun that either mis fire j m p he did not shoot whether and and it was a last minute spur of the moment not a premeditated calculated and deliberated you know plan to do something here before my time runs out i just wanted to say one thing i this panel is not particularly in thrall with my argument on the business disparate sentences but this case does represent an extreme malfunction of the michigan criminal justice system because here the presiding state court trial judge found that the disparate verdicts judge got it right in there for the jury got it wrong how do we know and i'm basing i'm basing my argument on the fact that the the state court trial judge provided detailed statement of facts and conclusions of law before he rendered his opinion in the jury trial the jury verdict is sheltered from that you don't know what the jury thought in reaching their st degree determination with regard to mr tec it the jury may have been so by the reckless  looking if that if the jurors looked at the law and looked at it carefully they would come back with a nd degree determination and that's what we're asking for here very well thank you the case to be submitted clerk major in