to try to reserve two minutes for rebuttal this is not a case where there was overwhelming evidence that mr renteria was guilty of st degree premeditated murder and for all the reasons stated in his briefs he asked this court to reverse his convictions and remain on this case however given the time constraints that i have here i'd like to focus on two issues unless the court has questions about the other issues the issues that i'd like to focus on of the sufficiency of the evidence and the expert witness issue regarding the sufficiency of the evidence issue you know nothing about evidence of premeditation that's correct on the issue of premeditation on that required an essential element in its response a brief the government in this case has urged this court to apply the miscarriage of justice standard but that's not correct in this case because in this case trial counsel did not specifically identify the basis for his rule twenty nine motion he simply asserted his theory of the defense that the defendant wasn't the shooter and made the kind of a summary assertion that there was insufficient evidence this court's ruling in the united states versus navarro says that's enough a defendant need not state a specific basis and where as here the defendant did not state the specific basis for the rule twenty nine the miscarriage of justice standard is inappropriate well regardless of the standard why isn't the evidence about the things that your client said to his cousin you know i'm going to get him and then the victim saying you know to his sister well i hope i come back why why something that sufficient to among other evidence to support the verdict when i heard less of the standard over here well i think there's a lot of reasons why those those facts as the government has articulate them take elated them are insufficient primarily it turns on the test that this court identified that that was consistent with jets and as this court's aware there's two parts to the test the st part of the test is that the evidence and reasonable inferences are considered in a light most favorable to the government and in focusing on that it's whether the evidence taken as a whole including evidence of innocence and the novel novels court specifically said that could allow any rational trier of fact to conclude the essential elements beyond a reasonable doubt which is spying applying that test we have your client telling someone before the incident that he was going to blank the victim up we have your client after the fact acting in a fairly rational manner right apparently hiding evidence of the crime and we have the victim on his way to being murdered in a car with your reasonable inference of that is that at that point there was not even an intent to kill what he said is i'm going to get him and he identified the person he was speaking to as jessica well if his intent was to kill mr mori yochi at that point there was no reason to lie about the identity of the person he was introducing him to because dead men can't come back and be a witness there that those two things the only reasonable inference that can be drawn from not is not the only reason you're drawing i think in france that might be reasonable for that conversation but it's not the only reasonable inference from that conversation and i think that it is because the other option is he's acting irrationally and there's no evidence of that in the record in lying about a person he obviously knows their name of it doesn't make sense if you intend to kill us but at the at the after actions clearly rational deliberative person who is trying to clean up the car find all the shell casings so on and so forth and you know that's what makes the  about the meaning of all these things but when you look at what whether there's a chain of logic that indicates that's evidence of premeditation obviously this court in the big a case allows the consideration of post conduct evidence in determining whether the sufficient evidence of premeditation but i would urge this court to look at the differences between the evidence that this court found sufficient in the be a case and the evidence that's present here in the big a case this was that was a homicide that had witnesses and the evidence of the post conduct to hide it was the defendant telling someone to shut up that person had just witnessed the incident that doesn't respond to this question about the nature of the transportation and taking the  weapon with him and so forth i don't think there's any evidence in the record that this vehicle was stolen to hide a later offense is there's no doubt this vehicle will settle and and that was the vehicle he happened to be driving that what i meant to say was there is no evidence that he brought the weapon to the scene what we know from the record is that when mr moray yochi and mr last seen there was another party with him and we know that when mr renter real was later seen cleaning the car it was with another person so a reasonable inference from that is that the other person was there to speculate as to who of those two people brought the firearm to the scene except your client had earlier i believe the same day  had broken into someone's apartment with a handgun right he was seen earlier in the day with what was described as a handgun and the witness said she believed it was a b b gun and she was familiar with b guns that's obviously not the weapon that was used in the killing in this case which is was a forty caliber which has a much larger but it makes it more likely that he was the one with a weapon as well i  think even if these things are to be considered as reasonable inferences giving the government every benefit of the doubt the question then becomes whether any rational juror putting them together given how weak each of them was given the actual state of the evidence could have reasonably concluded that there was proof beyond a reasonable doubt as we couldn't the jury to take into account the evidence that he confessed to d p that he shot max multiple times and picked up all the casings issue it goes to the issue very clearly of whether he killed him and we're not disputing that there's evidence that he killed them the question is is that evidence of premeditation which is evidence of a cool mind and not only capable of reflection but evidence of actual reflection and while evidence of post offense conduct can be considered it's an it's an you know it's an after the fact assessment of what was in the defendant's mind before the offense occurred which is when it needs to be there and it needs to be evidence of a cool mind that's actually reflecting and i think that you know in this case the evidence is that this is someone i think the evidence shows that he's not acting coolly all day as your honor pointed out this is someone who earlier in the day was a rationally accusing people of assaulting his girlfriend's mother who was pushing his way into the apartments of people he knew and who cared for him his family members this is someone who the actual evidence in the record demonstrates a lack of cool mind and cool reflection it actually the evidence that's available on that goes the other way unless the court has additional questions i'd like to spend just a few minutes on the question of  the the expert witness because in this case i think especially given the weight of the evidence this is important as the numbers court says the court has to consider all of the evidence and in this case the officer figure roa testified about a lot of i asked you to paint i know i know i'm trying to think about it your honor i think that the one that is the best is the ballistics quite frankly because i think there's no doubt in the record that there was an objection to the admission of the ballistics test and run through that for me because i was having i was trying to figure out what part of that because codes over the line in your view well what goes over the line and what we've argued is that it violated rule sixteen because the government gave no notice that these experts would take that he would testify as an expert and the ballistics i think is  strong is because tell me why it's expert testimony well i think it's expert testimony i think the district court even recognized as expert testimony because there was an objection to the testimony that was sustained on foundation the government laid additional  this was a close range shooting and he testified about his expertise about how a forty caliber weapon discharges bullets and therefore the meaning of the footprint evidence that he identified at the scene so he footprints going out i'm not sure i'm not sure i need to be much of an expert to know that two people came in one person left well i think that that that overstates what the actual experts testified to for example the medical examiner in this case testified that the shooting was at least two to three feet away and as far away as ten to twenty feet that contradicts what officer figure roa said in his testimony and so on what you mean by close well i  think yes but you and i are standing for you know fairly close together but what he testified about the foot track evidence is that some of it overlaid each other putting the footprints right next to where as he said mr mori which is that's that's that's a physical observation that's not expert testimony he said i looked at the footprints and some of them overlaid each other and then there is another set of footprints that that's a single set that happens to match up to the shoes that the forensic expert says are your clients going out so my my conclusion from that i don't think you need to be to inspector clouseau to figure this out is it two people came in and one person left so i'm not sure that i see that is relying on particular scientific knowledge well sir you're closer on how far away the bullets were fired but the medical examiner said it was at relative close range  i'm tom having a difficult time figuring out why any of this is prejudicial expert testimony well i think in this case that it's prejudicial because as the government presented this case this was a cold killing in close harm is the likelihood of doing irreparable harm is is i think greater that close somebody seven times it's pretty hard to say that you're not intending final harm well and obviously we didn't challenge that element under the sufficiency of evidence but in thinking about the expert testimony that this officer gave i think it is a relevant consideration i would like to reserve the remainder maybe less the court has additional question thank you please the court good morning your honors my name is william boyd i'm in a usa from here in phoenix on behalf of the united states and with the court's permission i'll turn right to premeditation and then like my colleague go to sergeant figaro's testimony just as there was overwhelming evidence that the defendant was the one who murdered max including his confession there was more than enough evidence to support the jury's verdict that this was a premeditated killing based on many of the factors that this court has been discussing i would highlight briefly the six categories of evidence that show that this was premeditated and i well what the court permission to use the profanity because it is the evidence in this case he said he was going to fuck max up and he was going to get him that's an e r for sixty seven dollars and this is in the hours before max was killed any reasonable jury listening to that testimony and frankly just based on that testimony alone could conclude if you take that drive him down to an isolated dirt field and shoot him seven times that is what you were talking about  actually say i'm going to using your ear using the f word max he said him up correct and then he said and someone else inferred probably reasonably from the context of the conversation that he meant max is that correct that's correct you're ok so so the evidence on that point isn't quite as strong as you suggest that's very wrong or the testimony was that as they were walking up to d p d p said he was referring to max and that in fact she knew what he meant was max wasn't safe certainly a jury could reasonably infer from the absence of any evidence that anyone else was there he was talking about now so your opposing counsel refers to the big a case who do you have a response i do your honor i think that this is much more premeditation than in the big a case in the big a case the premeditation was the defendant walking across the street getting a gun from a car and coming back here we have a defendant bringing a gun miles and miles and miles into the abandoned reaches of the heel river indian reservation using a stolen car having told the defense the victim lies to get him to get into that car after having announced an intention to f him up and to get him in and so i think that there is much more time for the defendant to have premeditated this this killing that i know you're not required to show it but it's often helpful for when it premeditation to focus on motive i had a hard time reading the record in this case discerning what the motive might have been was there any evidence of motive there was your honor i will freely concede it's not the strongest argument that the government has and this court has repeatedly said you don't have to show motive because it is difficult to do so you it's hard to crawl inside someone's head but the evidence was as follows and i think that a rational can construct basically what happened here the defendant is animated by one thing that day he is angry and that somebody has beaten up he thinks and hospitalized his girlfriend's mother so angry that he's kicking his way into apartment rooms that he's putting a gun to the head of katie you know and a ninety pound a little old lady stealing her cell phone accusing people of being responsible for this a few hours later he is seen and same place with max getting max into that car where he drove him down to the reservation and we know that he was that max at that point was afraid very afraid for his life because he told his sister find me if i disappear which is what you say when you know you're in mortal danger and then anger evidence cloud the issue of premeditation and i do i would it affect that issue i don't think so your honor because as my friend pointed out in her brief the interactions with max are cold and calculated nobody sees them arguing nobody sees him threatening max when he's were around max he's calm and he's operating with a cool mind and so that fact supports premeditation it doesn't count against it and then he's lastly caught in a jail called describing having  max that day it was max and as a consequence i think a reasonable jury could conclude he thought max had something to do with this and he drove him down to the reservation and killed him as a result but that is certainly one category of evidence in a company when with that it cleared intent to attack the victim the victim's last words the location of the murder being an isolated dirt field in the manner of the killing which we haven't talked about a lot but seven bullet wounds clustered on the right side of the transacting vital organs i think that to the extent that the defense wants to argue that things were farther away that would only increase premeditation because to get this tight cluster of wounds you'd have to be aiming even more carefully in addition to the calculated behavior before the car the life before the murder the lies to max the preparatory activities and after the murder picking up shell casings spending hours being caught on video spending hours cleaning out the car and wiping down the car this is evidence of someone who operated with a cool mind and a steady hand and a cold heart and that's premeditation unless there are further questions on that i'll turn to the argument about sergeant figaro the government does believe that this is this clearly a plane error standard because the objections that were made below were not real sixteen objections my friend i'll start with the well let's assume for our purposes that it was objected to the other side would still have to show because this is not constitutional or some prejudice from to be helpful for me to sort of walk through what things when things that sergeant figaro is sa the hurdles he has to jump are st to show that something is an opinion as opposed to a description of right nd that it's expert versus lay rd that sergeant figaro is unqualified to give that even if it's expert and th that it would change the for jury's verdict for him to receive a note right now i understand your point is that this is all a test we never need to get much farther because it's all late testimony and some of it i'm not sure it's prejudicial but some of it seems to me to be pretty close to the line and let  me respond specifically on the ballistics which is what my my friend identified here and i believe she identified two things the the quote unquote close range testimony and then the ejection of firearm of somehow the matter grounds to the right with respect to the testimony about close range i can read it to the court it appears on or for twenty six to twenty seven he had been describing the fact that he saw the where he saw the tire treads where he saw the footprints of perfect fact a description of what actually they're looking at on the spring in the photograph and he says quote it occurred to me that if this interaction was what caused his death it appeared to me to be something that had happened at close range if that is a if that is an opinion and i don't know how much you know inference you have to make to reach and you did have the medical examiner testifying that these bullet wounds were inflicted from a distance somewhere up to twenty feet absolutely your honor and there is no evidence of anything other than in this close area of any activity there is max's body right around it footprints and tire marks there is some testimony about the way that spent cartridge use would be ejected from this type of weapon and where they would go can you dress that yes your honor and just to briefly preserve the point the objection here is not rule sixteen this was the exchange do you have any idea the question was do you have any idea running or standing where those shell casings would go objection your honor that calls for speculation so it's not an expert objection but even assuming that it was his testimony was that quote the are for twenty things based on my experience both personally and professionally i've never shot a semiautomatic firearms that had an objection pattern that was other than to the right that is a classic von will you style lay opinion about something that does not require scientific in the end is that opinion make any difference i don't think it would make it because he does testify and i then searched the scene to find he doesn't say just to the right or if he did say just to the right he would be subject to impeachment why didn't you search for the important point is that he couldn't find in the shell casings i think that's right your honor i think that it was introduced to explain the particular photograph and why he spent time looking there because you know when you when you reject from something out of round if it goes to the left it's going to smack you in the face as this court said in graber and the gadson case excuse me a lay witnesses opinion testimony necessarily draws on the witnesses understanding including experience education those are things that's perfectly reasonable for somebody to be able to put before the jury onl testimony what about his testimony about the angle at which the crime probably heard he talks about how i think he does testify how he how he thinks the gun was pointed i mean i that that's just a lay description of what he's looking at at the scene he's looking at where the the footprints are he's looking at where the tire marks are in relation to that but i don't think that you know again even if there is some scientific or technical knowledge that would be required to offer that testimony which was on objected to i don't see how it could change anything there's no the medical examiner testified exactly about the angles that the bullets went into the body about where the bullet wounds were so i don't think there's anything in there that requires specialized technical scientific knowledge nor do offer an opinion i took you off it to beginning your your waiver objection could you identify which portions of the testimony there was any objection to yes your honor there were two objections in the record one wasn't of to the one we talked about which was on for twenty four dollars which was that calls for speculation when he was asked about where the where bullets are ejected from firearms and the nd is an objection on and fifty seven to fifty eight and that was an objection to relevance it was not all sixteen objection the question was once the location is found in a body is located you more law enforcement respond and the the witness starts to talk about yeah if it's  you know if somebody is injured we'll call the medics and if there's somebody who's dead we're going to call more police officers and the objective defense lawyer objects and says i object to this line of questioning it isn't really responsive or relevant so that's the relevance or non responsive objection all sixteen objection but again how does he jump all of the hurdles in this case even assuming that his response is it is somehow getting into the realm of an opinion is it expert testimony to say that if you find a body you're getting more police officers are going to show up even if it is how is sergeant figure i'm qualified to offer that is an opinion and even if he were unqualified how could you describe that as prejudicial of course they showed up and he testified factually that just a few points i'd like to make on the sufficiency of evidence the government asserts that he drove to an isolated seen the evidence as he drove from channel he was he was in chandler and he was headed towards maricopa between those two spots is the reservation the fact that that's the nature of the area doesn't indicate that it was by design and to make that inference when it is a rural area i think it's is weak at best as to that if i find find me if i disappear the government asserts and seemingly to give gravitas to that that those were his last words well we don't know those were his last words in fact what we know is that at some point in the day he called his cousin prima mendoza and after he was seen so we know that there's a conversation that occurs or a phone call that occurs by the deceit into his cousin prima mendosa and that's at e r v two to page two hundred this is the kind of speculation that doesn't support reasonable inferences to assert these are his last words is pure speculation especially when the record suggests there's a question about whether that's the case the  given even if this court finds that some of these things are reasonable inferences which we obviously assert that they weren't taken together they are insufficient under the standard which requires proof that any  rejected the some evidence standard or a modicum of evidence and we urge this court to reverse mr convictions on that basis thank you counsel thank you the case just argued is submitted and we very much appreciate helpful arguments from both of you