two issues that i would like to address today the original post conviction issue of whether the defendant stated the gist of america torrijos claimed ineffective assistance of a part counsel and also the supplemental issue of whether it's the minimum seems to be correct because the former issue is of paramount concern to my client they would like to talk about that for the issue the defense counsel a part counsel failed to raise in his brief was that was that the trial court was to challenge the trial court's refusal to provide the jury with requested clarification on the instructions of finding mitigating factor in the context of a defendant's affirmative defense of second degree murder said we're confused out we need clarification no no no clarification was given to suggest the judge should have done simply to almost as an english teacher would instruction is clear and its application should flow from it's clear language all you really need to do is spend a little more time revealing the instruction and i think that clarity will come to you well i think that the jury did send some time to instruction was underlined unboxed it was a complex instruction there well it's a multi course instruction  requiring a preponderance standard whereas the usual is a reasonable doubt if it's an unusual instruction it's complicated and the judge should have guarded against the possibility that the jury was going to decide this critical issue on the basis of misunderstanding so where do you think the jury could have misunderstood resulting in the first degree murder  jury what they said they are misunderstood mitigating what the phrase mitigating factor meant and how to file well we first we know that in order to fight before you can't even get to second degree the jury has to be satisfied  in was that he shot in a panic i'm afraid that that lee force was about to be used against him though of course the instruction requires that what the defendant believed it was a subjective standard the jury supposed to get into this friends had and they're supposed to decide on the basis of a preponderance standard these are unusual inquiries for a jury and i would submit that the instruction is is perhaps one lawyer but it is a complex m said they needed clarification and the judge should have taken the jury at its word what if what if the real problem with the jury was that they were looking at the difficulty for them lies whether the mitigation that was presented sufficient to meet that hundreds of the evidence and to reduce it to second degree and that was their real problem whether or not and they wanted instruction from the judge to tell  whether this was the fish or not and could the judge have set me like i think that the judge should have erred on the side of i'm making over making sure that the jury not what the nature of the jur confusion was i think that the child mentions that actually make they call it a fundamental principle trial court has the obligation to seek clarification of the source of the church's confusion i guess the question is unclear and attempt to clarify the matter  matter of law about which the jury manifests confusion confusion we don't know what was going through the jury's mind and it would have taken just a brief moment for the judge to determine you know how long so tell us what should the judge  what he had to fight and reasonable the first thing the judge should have done is to and if the judge was confused about the instruction was to inquire as to the basis of the confusion not simply assume that they had just taken a cursory look and  and just needed to get their heads in the game as it were telling your lawyer what are you going to tell the judge to do what should he have done differently i would go through each phrase of the instruction to understand mitigating you understand this you understand best you understand there is that right there isn't that something that yuri could have done on its own during its the liberations in the course of discussing it with you among the twel possibly but the jury said that they couldn't do what they said they were confused and they needed clarification i know when you say the jury said you don't know whether it was one person and good jury people that felt that way interpretation or perhaps they they rendered a verdict very quickly based on a confused and mistaken interpretation of this can people get confused over the word reasonable with this world being a lot of trouble th confusion over the word reasonable the world does yes i think this in a lot of trouble and this jury just said it was confused and i think bad the judges because you want you you believe that they should provide the jury with the same instruction on first degree attempted murder yes your honor in order to satisfy in order to  in conjunction with the time murder the jury instruction on attempted murder did not occur to the end and handsome factor nor did the jury verdict form an attempted murder but all these things were present in the first degree murder where the where the prosecution clearly sa degree of prejudice that the standard of review and such a claim would be a piece of discretion by the trouble is for the court to use discretion to respond to a jury and hear the jury no it's not really a question the question here was simply may we have classification about the term mitigating factor the question would only be yes or no you may have it or you may not the real west is for general exposition about this time so are you saying that the no really didn't reflect confusion as much as  a desire for more in a sense facts they just want to maybe a bit of a discussion but the point is no real question of law here this is just a request for a general exposition about what the term mitigating factor or two to add on to what they already have here would simply ruin the point of the passenger instruction which is already in the eyes of the supreme court of the state settle the matter perfectly well in terms of mitigating factor so there was simply no need the the argument that  way let's say a defendant is charged only with murder with that enhancement the factor have to be presented to the jury to allow the jury to decide whether that enhancement factors can prove beyond a reasonable doubt only when all the charges share that enhanced one factor and it's and it's and it doesn't apply when two out of three shared that is essentially what i'm saying but isn't the purpose of th