be arguing the preservation issue in this case and in what respect i'm not sure we can resist three arguments to support the preservation issue and briefly out of those arguments are  additional new evidence being brought into refugee as matter is not controlling in this case because the trial transcripts from the first trial are not new evidence and i i will say now further in detail later but that's one of our that's our second argument i third issue that was necessarily decided by a jury is acquittal in a prior trial so it doesn't say that collateral stoppel precluded it it says double jeopardy so so our argument is if you are deciding the double never raised and not a part of that record and yet somewhere either an addict in the union in the dissent of the arizona supreme court somewhere the issue of due process rights was raised for the first time and decided by the supreme court so so my whether or not mr holmes was charged as a principal with regard to felony murder and an accomplice with regard to the underlying felonies and and i think that in answer to that i think those two things merge because the prosecution's theory of the case throughout was so the fact that he was charged as a principle in the first trial allows you to draw certain fences and make certain arguments about what the import of that should be on the double jeopardy and so some of the findings that you're arguing after have been made in the first trial run necessary in the second trial because obviously standards are different if you're  identical with regard to the substantive counts and the second trial the facts that were listed at the second trial were identical to those that were with it the first instructions were done were different right i mean he the instruction by the specifically with regard to the jury instructions and and i'm the felony murder counts the court specifically said that in order to so the courts specifically instructed the jury that in order to prove it or to find mr holmes guilty of felony murder it had to find beyond a reasonable doubt i don't believe specifically that he was a principal in one of the underlying felonies but simply that he committed one to be underlying felonies well ok all the trial testimony included whatever obviously documentary evidence was submitted and everything else and the entirety of the record apart from the specific instructions residence he drove away for a while he came back he heard them while they were in the car discussing the fact that they had guns and when they realistically we being pursued by the police by i guess a good samaritan and  really the police when they were being pursued they stay out for a while they stopped the two people who went into the house ran mr holmes from in the car for some period of time then get out and ultimately was apprehended by the police officer that that testimony was identical in both of these trials and that's the testimony that's the only testimony that was a valuable to each of these two juries that led them to reach the conclusion they were at and specifically charged as a principal of this you know it's in the second trial he's not charged as a principal in the substance how do we get there and if you have an explanation then please tell me is  so first of all i'm eager for example it's a different situation obviously but in yeager the prosecution's theory actually changed at the second trial and he was still charged with the same offenses but the theory and even the evidence changed somewhat between the first trial and the second trial and the court still held that the second trial was barred by the double jeopardy and specifically the collateral stoppel doctrine embedded within th second thing that i would submit is that really it was more convenient for the prosecution to seek a cause and accomplice charge in the second trial rather than in the first for the very reason you just you just stated am and that was the prosecution's choice mr holmes had no control over that so to the extent that the prosecution decided in the second trial because it was more convenient or easier for them or for whatever reason to proceed on  counts out here yes on which mr holmes was convicted of maybe a couple concepts of work i hear your argument but how can you make that argument or any similar argument on double jeopardy and the facts are as follows mr ash was was charged with it was really remarkably similar to the situation that we have here mr ashe was charged with iraq three of a number what i did with me i wasn't there was there was an identification identification defense totally different facts here well you are if i may in this particular case in our case indictment and the evidence involved a felony having to do with me nor did it have to because of course with the felony murder statute or had it is anything that occurs in the commission of any felony so the state proceeded to try mister holmes in this case with regard to all these felonies simultaneously it is not for us to determine what happened in the jury room and which of those  statute actually is unusual for a bunch of reasons and one of them is that it is an end in between each of those causes and not an or so in order to to meet the burden of going forward with the affirmative defense the and that is how these cases are litigated the defense appellate attorney argued this case as a brock berger case that's why he didn't border in the transcripts of the first trial because bloch burger is a legal decision the proper test set forth in dixon is are the elements the same they don't care about the facts are the elements of the two crimes similar do they have the same elements if they do then they can't be retry this case was argued it was briefed as a blocker case collateral  different collateral stoppel is run of the two as the supreme court points out and it pointed out in yeager there are two if you like prongs of the double jeopardy cla one is the block parker clause which talks about one trial after conviction prosecution no multiple punishments the second is collateral  basically a factual conduct issue which is raw in ash versus ransom and ryan yeager the court said to make a collateral estoppel decision a court must look at the record of the prior proceedings the charges everything that wasn't done here because the defense didn't argue it the defense's argument was these by acquitting on the felony murder they he could not be retried or when the television set it up i don't know your honor ok well you know you were i think it's almost like when when someone raises a a miranda issue and the courts as i know by the way he says yes  know for this though well your honor i knelt to tell you the truth the a stoppel issue i don't know why they said it because it's clear as i now that this was a blocker issue you cannot read the defendant's brief you cannot read the defendant's petition for certification the petition for certification you would think if collateral stoplights somehow hit this in the head he would have raised it in the petition for certification he didn't so this jeopardy so the issue was continuing jeopardy your honor as set forth in richardson and that's what the a politician relied upon and that's what the state had argued and that's what judge hodge worked in of in finding no problem argue that decision or whether it was continuing jeopardy in richardson a case much like this case which is what was relied upon by the health of vision you had a situation where there were three counts one count was acquitted the other two counts were mistrial the defense argued on appeal that that meant that it was they tried to argue that this state couldn't retry what the supreme court said was those acquittals meant that the quilt had obviously honor also if you read back to my point that that the double jeopardy clause has separate right in us branches if you will even index an index in the case in which the united states supreme court court on ours and me and the trial transcript was not before the appellate division the first trial transcript i don't know what happened in the first trial your honor because i haven't read the first trial for a script because it wasn't before it's ok so the let me let me ask you the same question i posed on with one with regard to the station i'm trying to grow between being charged as a principal in the first case and having a hung jury on the the three subsequent counts and then being charged as an accomplice you know it's seems to me that that that distinction is a subset of one and  then it was never in the house he was we we argued that he taking this for the second trial because i don't have the first one argument was that he was i mean in the sense that they they acted in concert and that he was guilty of felony murder because he had agreed to commit the underlying felonies with regard to the weapons of accomplice for those cars etc certainly because he never he was never he could there it there's not much of a distinction between principle and complex in new jersey that much but we we there was no dispute that he never entered the house there was no dispute that he took he personally took part in the robbery there's no dispute that he personally in the sense that he was physically present but he was charged as being an accomplice as guilty as the principal yeah yeah i know that the question is what's the import of that as it relates that there are i i i think that the import is the fact that when the jury convicted acquitted him of the felony murders it didn't make the solution on the underlying felony the first trial all i can say your honour's that he was acquitted of the weapons offenses we have he was acquitted for example of conspiracy to commit armed robbery he was acquitted of the well it was conspiracy to commit armed robbery on earth the jury apparently had problems with his possessions of the weapon because he was acquitted of the charges of possession of a letter and he the jury found that either he that he was not in either joint or actual or constructive possession and that is a session firemen that you know you have control over they acquitted on that they acquitted on the conspiracy to commit armed robbery so do we does the does the acquittal on the felony murder and on the on the weapons offenses mean that they did not believe he was involved in the underlying felonies it doesn't because because the underlying felonies didn't necessarily didn't require the weapons necessarily and some of them your honor for example the the robbery i believe he was charged with robbery quilted not in any way show that they had reached a decision on his presence his guilt or innocence of the of the underlying films thank you thank you very much hours we did have a chance to review the jury charges from the from the first trial a moment ago and and i'm sorry what i have here is the original transcript the the jury charge was as follows now the state does not contend that mr holmes himself killed mr johnson and the state charges that mr johnson was shot and killed while the defendant mr holmes alone or with one other people that is principal principal actor thank you similarly and this has to do with one of the weapons charges but there is also language about mr holmes acting as an accomplice rather than a princip now with regard to the point that counsel just made i would submit restructure really that the only conclusion we can draw from mr holmes is acquittal on all three felony counts involving all three of the underlying felonies is that the reason for the jury's decision is the absence or its conclusion that mr holmes was not guilty of the underlying felonies and the reason for that is because the felony murder statute requires that the state prove beyond a reasonable doubt three things one of those things is that a person was killed and tragically we know that m killed the second thing is that the state must prove that the death occurred during the commission of or flight from its felony and again there is no question with regard to that the only thing the only issue that was left for the state to prove beyond a reasonable doubt was that mr holmes was involved and committed one of the underlying felonies and i would submit that under the analysis that the supreme court engaged in yeager and to a lesser extent in ash that is the only conclusion that can be drawn here the supreme court in these cases talks about the need for honor because i think the what the what what the court is obviously doing there is quoting from the statutory language but as i think the state just conceded it is entirely possible for that have been conceded by the state point only to accomplice liability they never pointed to anything different so if you have someone who is who remains outside the house when a homicide is being committed or when a felony is being  who has no insure action but the victims of that felony who never touches is never alleged to have touched the gun that was used in that felony who has done nothing except sit in a car and  responsible for driving those people who did enter the house to and from the residence that's the textbook definition of accomplice liability so whether the state whether the court used the words commit or not yes a felony one can be as i know you know far better than i do one can be found guilty of committing a felony under an accomplice liability  in closing i would submit that in this case what we have is an almost textbook example of issue identity and what the supreme court held in ash and what it extended to this situation of home counts in yeager is that the concept of essential piece of the constitutional protection against being tried twice for the same offense and what we had here was a situation that is almost a hybrid of the facts of ash and the facts of here we have someone who was charged with committing a robbery who asserted a defense of never having entered the room whe are followed very very closely to ash it said specifically that this is in essence an extension of ash and so it was not a new