a question about whether the court once as to address the three issues that were not certified for appeal that which the court requested that appellee address and were prepared to address i'm assuming that at least one member of the panel wanted to hear argument on that because there was an order asking the state to respond to those i think it would be safe to assume that those should be ok and so we have a real division of the this has to do with the issue of exclusion of the evidence that sandra brown had a history have child abuse and drug use and as the cumulative it was not cumulative i would say that the offer of proof was fairly general but the the evidence was to be specific instances in which third party witnesses could testify about what the sender brown's acts with respect to her children on various prior occasions which we contend was evidence of habit or custom and which therefore would not be cumulative it is true that there was  a stipulation enough effectively that she had a history as a general proposition of of mistreating her children but that's totally different in our view of from the specific evidentiary facts that would have been offered by the third party witnesses on the subject and which goes to the entire defense of the case which court characterize it as character mere merely character evidence but i think it's more properly analyzed in terms of habit or custom habit refers to a person's consistent and repeated conduct in response to a recurring situation that's what this evidence was that was going to be that in response to her children misbehaving sandra brown committed abuse physical abuse on her children on a consistent repeated basis under circumstances essentially fundamentally similar to what we had on the night of this but this judge just down the noted that's that was already stipulated that she abused her children so why why would there have to be particular instances the minimum in order to was brown has a history of child abuse but a block is just not the same as somebody coming in describing those instances in front of the jury so we see that as an important distinction that's a real risk of well yes and of course we believe that that ruling was incorrect and fundamentally and correct and a denial of constitutional right of due process and six get i mean they couldn't get sandra brown to testify obviously because of fifth amendment issues so the way to get some of that evidence of instead of having it come from the witness herself having to come from other third party witnesses is essentially the way to get that testimony and to what i would call confronting the facts with respect to sandra brown even if it isn't sandra brown rice testif to mr carroll the that we have three issues and one of them that i'm going to address is claim sixteen k which it was the failure to move  this is an icy claim failure of trial counsel to move to exclude law enforcement statements on the tape the audio tape that was played to the jury there were three different interviews by the police and trial counsel permitted all three of them to be played in their entirety so let me ask you what's the prejudice there  response to i think all three of the there were three tapes in response all three there were admonishments to the jury regarding the issue of some of the some of the statements by police officers being inadmissible those admonishments did not specify which things were inadmissible and which were not the  example over twenty instances in which the sheriff's deputies told mr mincy he was lying so essentially the jury is battered over and over with repeated statements by police officers who are of course trusted and trustworthy saying that this individual was lying to them and counsel did defense counsel make a calculated decision to play the entire tapes of the interrogation so that the jury would be able to judge for itself the context in which these statements were made and why is why do we get to second guess pack call decision well yes the trial counsel said let the jury hear at all because the intent issue is so critical this was tried counsel's rationale and that's fine if you're talking about mincey testifying and let's hear mincey explain the whole thing that made sense there's no way you can look at this is a as a tactical decision to hear all the provocative police officer comments to c n n about  mincy in full in all of those into this as well perhaps the thinking was that the jury would be still turned off by the tactics that were used by the police that they would not  credit the statements they were me about mr manthey and if the supreme court has said that you know the tactical decisions that are made by counsel are virtually unchallengable how do we get around that the  i mean i'm aware of the stricken standard in the approach which is as a general proposition we credit the tactical decisions of trial counsel but in numerous reanalyze concretely and in numerous instances courts have found that purported tactical decisions are in fact  fall below the standard of care and for a variety of different reasons the depends on the facts in the case what are ostensibly tactical decisions are found to be in adequately analyze you can't make a strategic decision about something for which there is no rational strategy and that's what we've got here yeah thank you i'm going to hand this over to  claims the first one is ineffective assistance of counsel regarding a failure to engage an independent pathologist on the cause of death issue the other issue i'm prepared to discuss is  the ineffective assistance of counsel on the decision to call dr anthony oliver for the defense that's how i read the order the actual i was the first one the failure to to whether or not the failure of the ineffective performance of counsel actually undermines confidence in the verdict this is not an actual innocence case in fact the evidence is not there the defense counsel had first of all engaged an expert then defense counsel would have learned that there was no basis for the coroner's testimony regarding the metabolic acidosis if that expert then had gone on the stand  he would have been able to testify that based upon the data and that exists from the from the autopsy combined with the testimony of the statements of mr m i he has done expert testimony in these cases i don't know if he certified pathologists it doesn't take a pathologist to look at the the blood work in the in the the bodily fluid work to see that there's no test done for acidity in the blood therefore there's no basis to argue that that was a contributed to a cause of death that is the and i mean that's basically what i mean and if we need i'm sorry go was sent in the motion for an evidentiary hearing basically saying there are some serious questions here about whether the forensic evidence was and there is whether or not there's a lease for prejudice is whether or not there's a reasonable likelihood that the outcome would visceral dr roots testimony at trial but as basically not having any basis in any of the test results that he made i mean a pathologist may have been more effective i don't think were sa that dr stewart was the dr that would be called we were using dr stewart say we need to have an evidentiary hearing of your theo and it was based on the fact that defense counsel did not engage an independent just i don't see that this is a really be immaterial issue the issue is should there have been evidentiary hearing regarding the basis of dr ruth's testimony regarding cause of death and whether or not it was constitutionally ineffective thought was the pivotal statement from dr oliver that mr manthey did not in teen to kill the child but that's what he said and i would just simply say that the prohibition against twenty twenty hindsight in these situations is somewhat of a two way street and you have to one would have to look at what mr mincy said he intended to do and what he did and the the basis for saying desperate times calls for desperate measures but let's look at the record why was everything so desperate that that point when all we had were were witnesses that should whose testimony should not have been a surprise to any e and then you look at the performance of dr of of mr mr whitney he got what he supposedly wanted very sort of early on and then went into this what can only be described as a grandiose invention going through this unbelievably damaging report that dr oliver had done regarding wincing going through line by line and telling the jury exactly what was going to right to present a defense was infringed by a standard and lawful application of california rule of evidence three fifty two should be denied because the balance of interests in this case clearly favors the truck court's decision to exclude the contested evidence and i want to first respond to the two questions asked by your honour's one was why wasn't this cumulative and it was cumulative the only potential relevance of this evidence was to show that sandra brown's past incidents of abuse demonstrated that call it character call it habit or custom either way that she acted in conformity with that character trait or habit or custom on the night of the murder so the only relevance was as to whether or not she abused james on december twenty second and twenty third that was conceded by both parties she was charged as a codefendant in the case and the jury knew that so this mean when he testified that both brown and mincey had abused her and had abused james that night so again the only potential relevance of this evidence was as to who it whether or not tender brown acted in conformity with that trait on the night in question everybody agreed that she participated in the abuse that night the evidence was necessarily cumulative the same is true with respect to the drugs in her system it was stipulated that she had amphetamines in her system her prior drug use could only have been relevant as to whether or not she acted in conformity with it on the night in question and it was stipulated everybody knew she had amphetamines in her system and to interest me to answer judge rawlinson question isn't this inadmissible character evidence it absolutely is this is this is quintessential eleven zero one evidence  the same rule is embodied in the federal rules in rule four zero four this was let's try to dirty up sand around to show that you know she had a character trait for abusing her children i don't think anyone disputes that she was an abusive mother  so it was absolutely character evidence it's now on appeal been couched as habit or custom i think the offer of proof a trial was insufficient to show that the offer of proof at trial was simply that there were some unnamed witnesses out there who would testify that on prior occasions she had abused her children that is not sufficient to show a habit a sort of king response to a situation either way the judge ruled the evidence inadmissible  under california will have been three fifty two which was the absolutely appropriate ruling i think the fact that it's also inadmissible as inadmissible character evidence and that it doesn't meet the standard for having a custom demonstrates that the state's interest and excluding this type of evidence was that much stronger that there are numerous rules of evidence which would have warranted excluding this evidence and as this court has said in perry versus rushing the appropriate approach to this issue  confuse the issues or is under lee prejudicial and this evidence met all of those so the state's interest was very high and then compared to the five chia factors  think it's very clear that in the interest in this case way in favor of the state the probative value the i on appeal of the defense has been characterized as if that this idea of relative culpability was central to the defense i think it a sort of more complete view of the record below shows that that was not a central issue for the defense the defense claim was this was a misguided attempt at discipline and that experienced an explosive rage which was supported by the testimony of his two psychologists that said he had intermittent explosive disorder and that as a result of that explosive rage he beat the child for twenty four to forty eight hours  d that because of his mental disorder he had no intent to kill and no intent to torture the idea that everybody was trying to pin this on sandra brown is just a misrepresentation of what the actual defense was at trial so i don't think that this particular evidence regarding sandra brown was central to one of those issues in addition to the liability and whether or not the evidence was capable of evaluation by the jury it's important to keep in mind the offer of proof at trial here and the offer of proof was one vague statement that there were witnesses out there who would testify about prior incidents of abuse but it's not clear how reliable those witnesses were it's not clear that the jury was would have been capable of valuating the evidence especially in light of the trial court's ruling that if he was going to allow evidence of sandra brown's prior incidents of abuse he was also going to allow evidence of minsky's prior incidents of abuse of the children and the prosecutor noted that for every witness they had who said sandra brown beat these children on a prior occasion the prosecution had another witness who was going to say mincey beat the children on a prayer occasion this would have devolved into a parade of witnesses all basically arguing over who had a greater propensity to abuse the children on the night in question when nobody contested that both people abuse those children on that night i think i've already spoken to the fact that it was cumulative and not a major part of the attempted defense so when viewed in light of the factors and the incredibly strong state interest it's clear that the trucker here made the right decision and that none of the defendant's constitutional rights have been violated i want to move to the uncertified claims the first the cause of death issue dr stuart is not a pathologist he is a psychiatrist he has performed some evaluations of cause of death where it involves drug use he his predominant area of expertise is substance abuse so i do think that that's relevant here because the opposing counsel excuse me mr mintz he has to make a sufficient that one there was deficient performance and two there was prejudice and dr stewart's declaration doesn't come anywhere close to that one he opined that the cause of death was overdose of amphetamines even though everybody agrees that to this day there's no evidence that there were any amphetamines in the child system and whether or not those tests were as good as they later became the fact that the doctor her says the cause of death is amphetamine overdose and we don't know that the child had amphetamines in his system i think that undermines the credibility of that declaration in addition to now so he also may ask in your briefing i don't think you address the duncan case in the baylor case at least adequately i don't appreciate how you would distinguish those cases in which we did find ineffective assistance of counsel i know i'm not familiar with those cases  ineffective assistance of counsel claim it is not a false testimony claim and so the important thing is to go back to the best of our ability in time to look at what defense counsel knew at the time he made the decision in this case the decision not to further investigate cause of death and what he knew at the time was that the coroner indicated that his the cause of death of the boy was an excuse me extensive blunt force injuries over a matter of hours that would have been consistent with all of the physical evidence namely that the child was covered from head to toe in bruises and abrasions it for the corner to conclude that that contributed to his death would have been the obvious conclusion i think everybody looking at the evidence would have assumed that yes the very extensive beating suffered by this child contributed to his death he is the other important point here is this notion that the coroner testified metabolic acidosis was the cause of death he did not testify to that he testified that the beating caused the death and that the child suffered a number of complications which arose from the beating one of which was metabolic acidosis and that was the basis for the district court rejection of the false testimony claim below which that's an important distinction because dr stuart's declaration seems to assume the doctor who testified metabolic acidosis killed the child that is not w rhee testified to and that was not the conclusion reached in his autopsy protocol so metabolic acidosis was noted as one complication but it was the beating itself which killed the child this is important when viewing the ineffective assistance of counsel cl because it was the information available to defense counsel at the time he made the decision regarding whether or not to pursue additional investigation on cause of death he knew that the coroner was going to testify that the beating killed the boy and that was the obvious conclusion and again it was consistent with the physical evidence he also knew that the coroner had tested the child for the presence of drugs and that none had been detected there was no reason for defense counsel at that time with that information to question beyond that the coroner's cause of death analysis and that is is i think the fundamental question here regarding deficient performance is what coun knew at the time he made the decision he could not have known that the tests for tissue analysis and urine analysis later would get better he could not have known that again d fact that there were there were drugs there was a drug overdose whether the base that there were there was some indication in the protocol that the child suffered cardiac arrhythmia so i think some heart i'm not sure if it's quite equivalent to a heart attack but something similar which can be in a young child caused by a drug overdose but again it i think the declaration itself is insufficient because it fails to explore what contributed to some of the heart issues that dr ruth testified that the child went into shock as a result of the beating that lasted for twenty four to forty eight injuries excuse me twenty four to forty eight hours so the declaration is insufficient on its face to the beating lasted for twenty four to forty that's correct i'm sure it wasn't constant i guess we don't know what we know is dr who testified that the injuries he observed during the autopsy occurred within roughly you know a day to two days prior to the death of the child so sort of where in that span of time where it's not clear moving moving moving on to the sheriff's statement the jury was instructed i believe a total of five times once before each interview was played one staring final instructions to the jury and i think once during one of those interviews the judge reminded the jury and admonished them again that it wasn't just these are not offered for the truth of the matter that the judge stated explicitly that the detectives had l about the evidence and that they were not to accept whatever the detective said about the evidence to be true that they were doing that to elicit information from mincey and again as judge johnson pointed out this was a tactical decision by defense counsel he wanted to be able to argue that the admissions that means he did make during those interviews were influenced by the coercive nature of the questioning and he did make admissions those admissions were coming in and defense counsel needed a way to explain them away and finally on dr all over this again is is a quintessential tactical decision dr oliver did not have a favorable opinion of mincey that was clear but that was also part of the tactic the tactic was there there was a lot of unfavorable information coming in about nancy including the death of a five year old boy by virtue of a twenty four to forty eight hour beating i mean see it made it in his interview with police officers that he forced the child to taste his own feces as a potty training mechanism defense counsel was reasonable in assuming the jury was not going to view mr mincy favorably dr all over did not  the tactic here was if i can get this expert who also dislikes mr mincy intensely to testify that he still did not have an intent to kill the child i can save his life because without an intent to kill he could not have been convicted of the special circumstance and the death penalty was off the table so in this end mr whitney's explanation it's clear he understood this was risky that this a prosecution expert that again that he disliked mr mincy he explains in his opening statement to the jury that dr all over does not like nancy you will hear unfavorable things from him but that even he agrees that mr mincy did not have an intent to kill the child so this is again a quintessential tactical decision that had that had potential risks and potential benefits and trial counsel made that eyes wide open he conducted a follow up interview with dr oliver prior to calling him as a witness he knew what the expected testimony was he even ate and dr oliver did in fact testify that he did not have an intent to kill  to remember that in the context of the trial the intent to torture was relevant for the first degree murder conviction but in order to find the special circumstance true again the prosecution had to prove an intent to kill and so mr whitney was reasonable in placing more emphasis on avoiding the death penalty and trying to undermine the special circumstance intent to kill finding and also and with regard to intent to torture i think the evidence the other evidence that meant she intended to torture the child shows the doctor all of us testimony on this would not have resulted it's not reasonably likely that it would have resulted in a different result the number of blows dr who testified that there were hundreds of blows to this child that the length of the beating again was twenty four to forty eight hours that there were there was tearing to subdural tissues the force of which to cause those injuries was a kin to the injury seen in car accidents dr root explains that part of the the medical problem suffered by james were because he was breathing heavily and crying which is what you would expect of a child in these circumstances i think also relevant to this is the age of the child the size of the child the the use of belts and a board to beat the child again that he forced him to eat his own feces and that he fundamentally lacked remorse from the time police officers showed up to find james one of the other points was james his younger sister was also beaten on this occasion she was a four year old and obviously her beating was extensive as well but in comparison there was a fundamental difference between what she experienced and what james experienced and that demonstrates that the intend to do harm to james was fundamentally different and i think in light of all of that physical evidence it's not reasonably likely that the jury was going to reach a conclusion that means he did not intend to torture this child circumstances and the state is not cross appeal i assume that the death penalty is off the table though for purposes of the appeal yes there was an instructional issue with regard to the special circumstance on on torture it's my understanding and again this is a decision that that ultimately is made by the san bernardino district attorney's office but that they do intend to retry the special circumstance and that is in large part because as it stands now m is is guilty of first degree murder which carries a twenty five to life sentence he's currently eligible for parole having already served twenty five years so my understanding is that they do intend to retry the special circumstance to secure either a circumstance right yes it is it's my understanding that where the special circumstance is overturned for an instructional error which is what happened here that given your position is it can be retried on that issue yes that's my statement that the forensic evidence the test results which are basic black and white do not support dr roots testimony regarding cause of death and with respect to the bruising of the child it was it was awful all the pictures were shown to the jury but there were no more broken bones there were no internal injuries that would have caused death the issue is whether all of that beating and spanking killed the child which is the fundamental crux of the prosecution's arguments two opposing counsel observation that there was there was no clinical evidence in the child well the the child's blood was never testified every other person who came near that in that event that had their blood tested including the the two defendants the child's urine was tested and that was shown to be that came up negative but whether or not it would have been negative news the paper chromatography test it was a judge would excuse me  route the corner testify that he should have had a no result based upon the amount of your in that he used and i mean and the evidence has been destroyed since then so no there is no how can we rely on an there is nothing to support that we don't need to rely on whether or not there's an alternative cons of death in order to find ineffective assistance of counsel we're not here to show that that's what killed the child we're here to see whether to decide whether defense counsel should have made a decision i don't know if there was any decision maybe of no evidence at all but what defense cuts was in defense counsel's mind about whether or not he should question dr roots but at the time of trial what and the record should have alerted defense counsel that unlikely cause of death was an overdose from  quiet statements and the protocol showing that the the absence of basic basic indications it would have shown that metabolic acidosis electrolyte imbalance and shock would caused death in the situation and since intent to kill is so important how can someone mr missy's limited intellectual combat capabilities assume that the spanking over a course of many hours death and with respect to whether or not metabolic acidosis was a cause of death if the focus is only and dr roots opinion it's very blurry if you try to figure out what he's saying but if you look at the prosecution's closing argument he focused get a license physician to look at this or somebody who's who has some ability of two to see that and say hey there's the ph level was never tested how can you say there is an acid base imbalance if you don't test for it that's the basis of this