or next case on the call the dark days agenda number two he's number one one zero two or three people versus washington and also for the  directed trial judges when faced with the question of whether to tender an uncharged offense jury instruction is to make an assessment based upon the evidence in the trial record in other words it is the record evidence that should drive  decision whether to tender a jury instruction and that is the case in the status of the law regardless if the defense makes that request the state makes that request or the court contemplates it so a sponsor and that is exactly what the  did here in this case when asked by the defense the poor are lesser degree second degree murder jury instruction based upon a reasonable belief in self defense the trial court properly weighed the advocates and determined based upon the two diametrically opposed points of view there simply to quote her was not a scintilla of evidence to support that instruction that to believe the people's version of offense the defendant retrieved a gun n due to any fear but due to secret stash it from the police and return to a scene of a heated argument and shot the unarmed victim as he walked away in a fit of rage if you believe the defendant's testimony on the other hand he pulled a gun and shot only to defend himself rather than be shot from a hospital adult from period of just a feet away had pulled a gun out unmistakeably a firearm a wooden handle revolver pointed it in his direction it was going to shoot that had the wherewithal actually to attempt to disarm him and shoot at his arm but shot him nevertheless in self defense the court properly logically rationalized that if you were to believe the defendant's version of a facts you could never no matter which way you turn those events backwards forwards up the side down determine that the defendant would have been on a reasonable  those gunshots back importantly the only argument presented to the trial judge in this case was that she had no discretion when she had made rush hold on finding that defendant had presented and off elements there was own testimony to warrant a self defense instruction and it was presented to the judge was that you have no discretion once you found that you must as a mandatory counterpart or  y rule give me a second degree murder jury instruction that the court pointed to case law that said that that is not the case in this court rock having previously and repeatedly on a quickly held it the concepts out a reasonable belief in self defense is justified force is not usually exclusive with it on reasonable belief in self defense the defendant's not forced to choose  jury instructions will not be tethered to his trial strategy but the evidence that case similarly the people assert is they are not mutually exclusive they certainly shouldn't be so facto mandated as being a mandatory presented back in nineteen eighty saying he was excluded was saying is that there's no evidence to support an irrational belief it if the defendant's version of events were to the believed even if that gun was a b b gun certainly he would have ult been exonerated if the jury had chosen to believe that but they want to quickly reject it in a matter of a half hour after days and days of testimony both of the witnesses based upon a clear cut credibility contest they don't mean to which was because the defendant had available to him in addition to a traditional self defense that mistaken belief would be equally exonerating therefore it would be inconsistent as a matter of law he wasn't title to an on reasonable belief but th in shouldn't be based on any per se rule it wasn't the question this court called upon to answer and rocket in back in the time of lockett the prior far more prevalent question being raised time time and time again was courts refusing to give a second to greenberger jury instruction voluntary manslaughter at the time prior to the change in the law is a bit thick prior to nine hundred sixty one before the change in the criminal code defendant's only had available to them as violent voluntary manslaughter a provocation defense they did not have that option of a lesser form of second degree murder in vir was it appears to be looking at the case law a residual hesitation to allowing a defendant to have a second degree if he was putting forth a self defense that they were finding they were inconsistent it could have been consistent offenses but that is not the law and that is exactly what this court has answered time and time again but this court has never been called to answer the question that it's the o'neill case really had a different and a little queer framework they weren't asked that question what happened in that case is this fate had presented a theory and then attempting to say the defendant would be precluded as a matter a lot not based upon the were raping a woman and somewhere along the line he decided he needed to use self defense to kill his codefendant because he'd been forcing him to do that the question wasn't really answered it parroted some of the language in rock it which didn't necessarily wasn't asked to answer this question so it was quite a different focal point in you know neal i mean all the people had waved a position that as a matter of raw the defendant would not be able to proceed prince is there to defendant's testimony was they never had a gun to begin with and that the victim came with a gun and that very had two unarmed that victim and that's where the struggle ensued even stronger cases then this case which i see the court actually did not abuse her discretion but that's an abuse of discretion question as opposed to a person a rule so if you look getting anderson in billups and to follow the rules that defendant advocate today those trial courts would be forced to provide a jury instruction that is not based upon the record of evidence at trial and that is just odds with the entire way we view jury instructions in whether or not to turn and be driven as is it is in most cases based upon the facts of an individual case if you were to give the defendant a second degree murder instruction based in this case it would be based on things that were not spread of record another words we're boarding at perjury were it dealing with with somebody exaggerating i don't quite believe the victim i don't quite believe the defendant so maybe something happened somewhere in between and that is just not the way the jurisprudence has developed on whether or not to keep returning struction a question or instructions have never been the status of rod given unlimited instructions it must be based on some tangible piece of evidence in the record and you just  could not find the defendant would probably within reach a very powerful statement i think it was a strong message meant to be sent that it would be in the most extreme situations where there is clearly no evidence in the record  credible evidence in the record you could point to and and the court did not conceive of the situation that presents itself in anderson that presents itself some billups that precise itself in this case but they certainly didn't use the language but at a mandatory counterpart and so far the senate i don't think so because the question is never been squarely presented as it is here today and while there was language in i absolutely egg knowledge that it is the rare circumstance with the situation with rise just like type a type b murder with respect  cases to say as a matter of law not that there wasn't evidence in the record liking joyner they were trying to say as a matter of law because this defendant had available to him an alternative defense in rock mistaken belief that argue there wasn't evidence of an erector that you could look at it and say that it wasn't rational clearly rocket it is a pivotal case of where you could see to which would you think it was a battle that he was getting or when you're dealing with with an  old man with a pushcart down the street who's acting silly that people are laughing at it's brain just a smoking pipe and is now prone to some bottles that suddenly he's going to pull a gun well certainly there's evidence to show that that's an irrational and the same thing or maybe gun it wasn't that there wasn't evidence that wasn't the state's theory in both those cases before this court with the state was trying to say as a matter of law those defendants were were per clue so the question of whether or not the of anything that can turn turn it dependent subjective belief into something that isn't reasonable has not been raised before until today and i have to say i don't think it's a rule that it seems to me are saying in this case the defendant said i saw a guy therefore i shot there's no question about it if he didn't if he didn't see the gun it wouldn't be so it wouldn't be would reach him with murder if the writers as well i thought i saw the gun or i thought he was pulling a gun but i wasn't sure and so i acted is is that the distinction you're drawing in many cases it might and many cases it might and it's not a matter of how precise the defendant's testimony is it's looking at the evidence and what was there any way that you can take the defendant's testimony and look at it and say that any rational trier of fact could look at that and not acquit so i has to look doubt after a car accident pointing a gun from you all the witnesses said it was like from a distance of a few feet away enough time to see that it is a revolver that it's got a wooden handle it is pointing it at me and there is no doubt my mind is going to shoot so i had to shoot first there is no way if you believe that you could say he was on reasonable that's an invitation to compromise which the law doesn't tolerate from any side and what is an unreasonable belief where the instruction should be given it's going to be the vast majority of cases that we see and i am telling you that this is the exception this is the exception anderson is the exception record advocates determining that we can point to where a jury would support of her evidence that would support a project based upon reasonably for self defense but these reasons and those stated in our brief and we would ask opinion finding that there is a person a rule that second degree murder based upon reasonable belief in self defense is a mandatory counterpart to all cases where self defense is and what the judge your honors may please the court i am rachel marie and i represent the appellee melvin washington your honor is to accept the state's argument just made would be to invade the province of the jury and set aside more than three decades of essentially settled law this court should affirm the decision below remaining for a new trial for three reasons first this court has already addressed this issue in people vs lockett and held unequivocally and squarely where  defendant presents evidence of a subjective belief that is evidence sufficient for both the self defense and a balance every or second degree murder instruction second even disregarding walker and his progeny all together the question of of whether independence subjective belief was reasonable has always been for the jury and the jury alone to decide and third even if this court rejects the per se rule the facts in this case contrary to the state's contention were in fact sufficient to warrant a second degree murder instruction turning to the first point this court in people versus lockett set forth a per se rule that where the defendant presents evidence of a subjective belief that is enough for both self defense and if the subjective belief the jury has three options now based on what the defendant says or what other evidence is presented the jury simply has three options the jury can reject the evidence all together and find the defendant guilty of first degree murder the jury can accept the defendant's or others testimony and find that it was self defense or the jury can find that the defendant was a good subjectively believe that but that belief was unreasonable and in that case the appropriate verdict would be second degree murder  this case this the one thing the state is correct about is that mr washington's testimony alone was a perfect self defense he did testify that he saw gone from a couple feet away he was able to describe it and he testified that he believed that gun was going to be used on him and he essentially needed to shoot first but there's a plethora of other evidence from both the state and other defense witnesses indicating that perhaps they didn't see a gun but there was evidence of a suggestive belief your honour's this is not anderson this is not just to give a few examples of the facts topeka washington for example testified she was a defense witness and she testified that ronald lee the man that melvin shot at was operating this count of an altar cation and of profanit by ronald lee donnelly ronald's own brother testified that melvin came up and pushed melvin and that melvin pulled out the gun just immediately after this this push and even want to cut yet another state witness testified she she was a little too far away to see exactly what happened but she saw that there was an argument and a physical altercation happening and so there's there's a plethora of evidence from other witnesses that by far separates this case from the two cases in the last thirty years that ha part of testimony of evidence at a trial so the jury could in fact have decided to reject melvin's testimony but if given the opportunity found that there was other evidence of an unreasonable belief in the need to use self the force so found that the gun didn't happen but the rest did and people versus joiner and people versus everett are both instructive on this point both cases from this court and enjoin or the court addressed a similar situation and this is actually even pre laca and the court manslaughter instruction can be tendered and this is the important part even where at variance with the defendant's own testimony in joining there that was a case far more than melvin's where it was pure perfect self defense on the part of the defendant and the joiner held that even regardless of that there was other evidence to support a voluntary manslaughter instruction average similar situation the defendant testified that the shooting was a complete accident and yet the court held that even in that situation a second degree murder instruction would have been appropriate based on other evidence not disregarding the defendant's own testimony but to turn back away from the facts and back to this court's decision that if the evidence supports a self defense instruction it will also support a voluntary manslaughter instruction we agree with those cases again we hold that when the evidence supports and instruction and justifiable use of force a tender valens hearing manslaughter instruction should also be given so the the state's really its only attempt to distinguish lockett is say well i didn't really address that issue something different was going on the languages we addressed this issue squarely and several of your honor's mention people versus o'neill which came just four years later and as your honor pointed out used the language law it quoted lott that is saying that we a defendant tendered provide evidence of a subjective belief and request a voluntary manslaughter instruction that instruction quote must be given o'neil the state said the state says it's quote the state that question wasn't really answered and only oh well i'd like to point the court to exactly where the question was answered in o'neill and again to quote o'neill where there is evidence in the record to support self defense instruction a valentine the instruction must must also be given if tendered by the defendant in instruction here and self defense was warranted consequently we conclude that the tendered instructions on voluntary manslaughter also should have been given o'neill addressed this just four years after lockett and if there is any question unlock it as to whether the language was mandatory or not o'neill answered that question with a resounding yes and there hasn't been much confusion about that at all people versus edmonson people versus luckett people versus tony these are all appellate court cases since those two that have interpreted lockett and o'neil as requiring this instruction those states attempt to say that there must also be evidence of a reasonable belief it's assumed what it's doing is it's creating a false dichotomy melman would certainly agree that there must be evidence in the record to support an instruction but the evidence here in to support th to second degree instruction the evidence in a case like this is evidence of the defendant subjective belief that's all we need to support an instruction on second degree murder it's only for the jury to determine whether that belief was reasonable or not and it invades the province of the jury when the court makes that determination on its own which is what the trial court here did it said well i don't think there could be any way this could be an unreasonable belief their farm denying the instruction that's not appropriate that's not a situation for the jury to determine even outside the context of law the question of whether a subjective belief is reasonable has always on squarely within the province of the jury this court from people versus sawyer is instruct this point that's from one thousand nine hundred six in the court held that the reasonableness of the defendant's subjective belief that he was justified in using deadly force is a question of fact for the jury to determine again there's no  on this point there's only two cases in thirty one years that have found there's any way to distinguish to suggest that a trial court should be allowed to make this determination and it's certainly not from this to provide an example in in for example a second sexual assault prosecution where a defendant has to pay is accused of having sex with a minor if the defendant testifies that he believed that person was of age the trial but it's not the position to sit back and say let me figure out whether i think this defense was reasonable the trial court tenders the instruction based on the belief and it's the jury's job to determine whether that was reasonable it's not the court's job to do that where defendant has chosen to exercise his constitutional right to a jury trial then he has the right to have the jury to decide decide the facts and reasonable miss of a belief is a factual question people versus washington and the appellate decision and if the pinpoint side is six seventy seven the state has an incorrect pinpoint citation in its brief saying that the court below found this issue forfeited in fact the court below what the court below did is say that  entirely different issue on unlawful use of a weapon was forfeited and we agree with that but the court noted that the state address the issue of provocation on its merits and argued that malvin did not prevent present sufficient evidence to warrant this instruction and so this second degree murder instruction was warranted on both counts and there was evidence even regardless of the per se rule that this court should set forth there was evidence on both counts to support this your honors the state has conceded that a second degree murder instruction should be denied only in the most extreme situations this is not one of those situations if you look at the facts of this case this is not one of the extreme situation the state has also conceded in his brief that the court should or should not be reluctant or resistance to tendering second degree murder instructions the state cannot present and has really made no effort to present a single reason why the instruction should not be given why this must be case by case analysis rather than a per se rule as the state acknowledges and we would also say this this rule can favor either the state or the defense but it is the appropriate rule based on this court's years of precedent deducing that their rule the per se rule that melbourne requests respects the role of the fact finder it hears this president it respects the defendant acknowledges there are many undecided issues in the court below and therefore even if this court rejects in melbourne's contention here the case must go back to the appellate court for a decision on the remainder of the issues thank you thank you defendant or question one on appeal because it did not as the appellant defendant is obligated to raise issues in its appeal and if the state made mention of provocation in responding to that issue it was raised in the trial courts it was incumbent upon the  scintilla of evidence of mutual combat and it certainly doesn't rise to the level of a substantial property physical injury what you have at most is push that would certainly be out of proportion with using deadly force under the circumstances and no case has come close to finding that out in available second mitigating defense and it is actually a fallacy to say without a per se rule the province of the jury is invaded there is no violation of any form of the process unless the evidence warrants it so to simply make that break in statement is to beg the question second degree murder importantly is a lesser mitigated offense of first degree murder therefore it is the presence of a mitigating factor that is the defendant's burden to establish that crime to something less than first degree murder and certainly specific facts of this case it is significant that it was never once presented to the trial court that there was other evidence in the record to support an unreasonable belief in self defense if you look at it and distill it down the testimony of to pick up and i don't need to repeat the profanities but i think it is taking liberties with the record to say there was a stream of profanities once the defendant chooses to testify you don't exactly the testimony and say maybe he was exaggerating let's fill in the blanks with the other evidence you need to look at the bed jury for a couple support reasons she completely undermined any testimony of self defense in this case looking at her testimony at the bass you have a two handed push there is no weapon in your hand in a brief grabbing at the knack of pushing downward this business about choking if you look at the record closely that is the state's attorney on cross examination that he had one hand to snap attempt to try to point out the capacitors nature of her testimony and manufactured on the witness stand four years later after she fled the scene never came forward never presented any evidence and suddenly for the first time has decided to ask at times to corroborate a fantastic tale of some type of self self defense she was looking right there was nothing else interesting going on in the street that day had she seen a gun she would have been able to testify to it and told somebody so immediately it was absolutely rejected is  so to an actor per se rule would be to invite juries to return verdicts that are not based upon the evidence but based upon speculation and to force judges to give cautionary instructions and we ask that this court not do so