essence the instruction tell the jury or told the jury in the state trial that whether or not some instructions applied depending on what that jury found to be the facts and that the jury was to disregard any instruction which applied facts determined by it not to exist of record goes directly to that dispute because if the jury decided that didn't exist severe four point two one which was the correct instruction the only other instruction that existed in the record that guided them in how to determine then said it was harmless it's ok and so the only issue before us is whether they were unreasonable saying it was harmless not that they were wrong or right or even clearly wrong reasonable probability as a probability sufficient to undermine confidence in the outcome so i believe the question the court's going to be thinking is whether there is an undermining of confidence in the outcome because of the state of the record books to post against the  instruction i believe the opening brief address that rather in detail i i set out i think five doctors looking at the record overall looking at the state of the record overall how could this instruction have misled the jury everything from what other instructions existed to guide the jury in the right direction well there was really only one of two did counsel's arguments overcome the error of the instruction counsel's arguments might have but the jury also was confusing instructed albi correctly under evidence was i for i read the entire transcript of of what he said happened and i have tagged here every time he mentions cocaine so i'm fairly well acquainted with that part of his evidence was that he wanted to engage in sex and that this fellow was going to provide the woman to give oral sex based upon bringing cocaine was it was lenny who was smoking the cocaine his cocaine that he gave him so that he could have this sexual encounter on two occasions and then the fight got into how much cocaine that was provided to the lady for the involvement if there's nothing more than that there doesn't seem to be much evidence that he was intoxicated at all pike ok so i think if that's was an expert well let me that happen mr brady wasn't arrested for this crime until some time after the curse and there was certainly no opportunity for him to be arrested and tested for his level of intoxication shortly after the incident because it was a know i mean there were also the issues that the jury obviously decided to cast in my guess that he about whether what the robbery occurred before or after how that factored into the into the decision correct well that w conceded here down by here at the state court because it violates the california supreme court's holding that the instruction should not be given in this kind of case but the court did so under an exercise of the supervisory power not a constitutional basis circumstances under the constitutional test which is boy which is california the court found that in fact there was no constitutional lawyer just going and said another way of saying that they found the error in giving the state law instruction was harmless so to begin with we really don't have anything that really would have confused the jurors under the constitution standard of course has counsel requested the instruction under state law he was entitled to it but the prejudice  supreme court originally said we should not give instructions the evidence the arguments of counsel in south dakota suggest no there is no problem here the evidence of first degree murder is almost overwhelming t state i ask you to assume and i didn't ask my father is a serious he was fully intoxicated to the point where he could really think yes then that would be a problem there'd be a problem because he may not have the intent you could only get him for manslaughter or there may be some other difficulties are involved so the issue has as far as prejudice is concerned is could t jury have along with that intoxication been concerned with the second jury instruction which tells them at least in part and least they could assume i understand your take on it in red fifteen but i think it is maybe the has an excused if there's intoxication when i'm asking is is your argument based counsel and how would your argument be different if it were otherwise that is if there was enough in the record for the jury could have believed that he was fully intoxicated by ingestion of cocaine well you can have you to hedge on this but the first the first aspect was that four point two zero applied in a strictly in technical legal sense is not here and that the jurors would not have found that he didn't act that was criminal are you murder prejudicial if he was totally loaded on cocaine and couldn't think i think i have to disagree with the first promise in the question that the harmlessness of the instruction i'm not sure of the boy scouts talks about and state law here but it's not constitutional i really think we're done does it matter i mean i'm not sure why it matters if it's constitutional error or not we're talking about ineffective assistance of counsel so he made a tactical error worth giving instruction well that brings me to the to the quotation that i asked ms to be too about wasn't there evidence that he says i'm not blaming my current blaming it on cocaine but i'm sure it had a little part in this in it as far as a judge has to give a jury instruction it is correct it's not the standard for giving the jury instruction it is the standard for leaving the elements of malice aforethought for first degree murder so when we talk about voluntary intoxication affecting your mental state it is of substantial impairment is not a little bit and so yes mr grady a week after the crime can recall and pretty significant detail what he did judge was you were asking about the state of the record with regard to evidence and how intoxicated mr grady was and again there really isn't anything in the record to give us an actual level of what that intoxication was but i had mentioned to you that an expert had been c cocaine is an adrenaline boost there so that a person under the influence of cocaine can show unusual strength and also displayed violent behavior toward others and that appears in the state reporter's transcripts in volume one i think is one sixty one to one sixty and i assume that's true but the question is did it happen and this case he denies that he is intoxicated only says he is was influenced and then he says i don't have a cocaine habit  he said he doesn't have to have it or you are not sure how much of the hypothetical that was given to the expert how that ties into the facts of this case could you help me with that absolutely your honor i think know most of the people aren't it's not like what a normal person would do and people don't always stock cooperate and die really quickly and so it you know that's what the jury has to look at all of that so you're absolutely right i mean those are all arguments that you can make to a jury but i don't know that you know we can take like judicial notice that any that a normal human being wouldn't do that it would have to be and you know and embrace cocaine abuse you know how this we don't know what the story was thinking or what their thought process was i'm simply saying that based on those facts of the kind of attack this was and the different kinds of homes by the acts that were committed against this victim the jury could have looked at that and then after he was he had his competency enough to search ram stack the house get a clean bar of soap and washing saw five which was rather strange and take the safe route but be smart enough to put a sheet around it before he put it in the back of the car and then was wise enough to take the scissors along and then dispose of mana freeway and then take the car and sell the t tires and the wheels which indicates that there was some faculties going there how would you respond to that when when we don't know how much cocaine he's ingested only use ingested some and then he has these very rational acts that curious to know is how quickly cocaine intoxication wear off we know how quickly and alcohol intoxication wears off at least i think because the written transcript every every hour or so it decreases by half in the body can someone be so f cocaine and paranoia that they can in a murder and within half an hour after rationally i think that's you that's a possibility that mr grady was not able to actually form a mental state that he was going to kill this man at the time he kill but immediately after the homicide he came to his senses he was frightened by what he did and yet he decided to be opportunistic about it and ransacked the house and make a clean getaway that's a possibility i don't know if that was really before the jury i suppose that's part of of the case what part do you play that both counsel argued the correct your instruction to the jury rather than incorrectly that is not only the defense attorney but the prosecution argued the case the proper jury instruction had been given what weight should we place on that in determining whether the due to the ruling by the california court was objective lay reasonable in finding no prejudice first y there's a u s supreme court case france's first franklin i mentioned on the opening week says well if the court would look at age twenty eight of that case a similar situation occurred contradictory instructions were given and the jury wasn't told which one carried more slide here and because of that there is harmful prejudice to mr brady require a reversal of his conviction