win when in the heat of a an argument or you know somebody walks in on their spouse or something and they end up killing someone or they they they defend themselves because somebody is tackling them gets clear but when you kind of take this advance position about you know right i'm going to be a security i'm going to take care of any business it might come off so you're  in this tony in the game bigger role all sort of gang related cases the first thing the court looked at and kind of determined was that shooting into a gang member scott pushing yet was phony as purpose apart from the actual death so i'm not sure how you put this next to morgan and what how he how i mean how do you feel has the the there is no inconsistency with the felony murder in this case and the second degree and so they are farmed where that trial judge sentenced them knowing murder some other purpose so in this case a little like tony because in tony the judge refused to give imperfect self defense refused to give them cell phones so the court can it case a decision it's similar to those cases except in this case the jury came back with to me what certainly is arguable to be very inconsistent percs but in these other cases here the jury came up with this and let me ask you this there was a there was a special verdict regarding he personally discharged ira the shooter do you recall  because if they were asked about personally discharging in the commission of first degree murder not the death thing but that just goes to the hansens but it would just be another inconsistency here having these arguments where one person argues or question or whatever but when it comes down to it we actually analyze it is it's you're asking what happened when they did the judge kind of think that by having the third issues instruction on the purpose of that of that jury instruction isn't the more he classic case of felony murder where if somebody begins a forcible felony and starts an emotional series of events that if there is a reaction to that he can't claim he can't claim self that's separate ok and you're saying this is not that case because this is all sort of this one instantaneous or that yes but what what i understand that are and it does seem to be a confusing jury instruction but what are we supposed to do about that what rule of law do we rely on or what rule do we carve out that says why that's not ok so answer the first question i believe what you would do is would add a time element to it you would say something to the effect of and then we have the second degree and what if the jury was giving him some relief by not finding him guilty of murder in the first degree is there a possibility this is this verdict represents some form of seemingly inconsistent verdict murder in the second degree felony murder that order says send it all back for a trial on all the charges now the state's going to say y so so so if we were to other cases if we don't get it to self defense in the imperfect self defense instructions are given the cases improperly tried in particular that the difference in this case is that the jury did not accept for whatever reasons we can't decide or determine why they came back with those birds but if the judge doesn't give the imperfect self defense in the the self defense instruction from the basis of the first were phony it was a separate killing of the victim diaries murphy let me ask you this how can you say there's like a separate killing in this case you know one  mts found guilty of aggravated discharge of fire now are you telling me that there's nothing inconsistent about finding felony murder and second degree murder there's nothing inconsistent where we look at the elements of second degree murder which is first degree murder as the mitigating circumstance in this case an unjustified belief only for self defense and felony murder predicated on similar which were the first second and the third and so it's reasoning isn't consistent with the literal statement that the first and the second are inconsistent with a third of the fourth and that was  victim the jury said that he had the right the reasonable belief in the use of force against the victim so they found he was guilty of second degree but then at the same time that same in the only victim they said he was guilty of the money order those critics and that's not inconsistent a verdict on be mitigated second degree right why should the judge allow the felony murder to stand when we mitigate defense is less inconsistency where we have a jury finding of second degree we have a jury finding of a mitigating factor and our legislature said if you find that many getting fact you can't convict him of first degree murder only second degree and so this person i mean didn't davis and even after the state ask them to abandon this idea continue to stand for the proposition from vegas from hell and from morgan no we're not going to let that happen that if you could prove it you can take a shot or maybe maybe you properly charged me but once the jury came back with second degree murder he could not be convicted of any first degree murder and to allow that to happen is allowing people to basically see a void eliminat what we think is probably about five shots we know there were five cartridges or whatever found and and yes not surprisingly witnesses have different taste but let's just for the purposes of our discussion say there were five  couldn't agree on that ok so every one of those shots was taking an unreasonable self defense it was taking with the subjective belief of something offensive that was unreasonable every one of the shots he took was mitigated and yet one of those shots killed this kid that's so so you're taking an act that was found to be mitigated in only punishable with second degree murder and punishing this first degree murder the the fact that the victim of the killing was also the victim of the personal phony and the back  will there is no there is no imperfect self there's no the defendant was actually shooting in a van trying to defend himself against people in the  and the purpose of the felony murder rule up in this instance is perhaps executed or that that purpose is is demonstrated in this particular because his exactions were actually directed shooting at someone else be it you know because he was defending himself or because he on recently believed that he could defend himself against the people in the van but that has nothing to do with first degree murder you consider self defense to aggravated discharge but you cannot consider imperfect self defense so they were told they had to find that you didn't act in self defense and they didn't find here in self defense but they were never told they couldn't produce it because they couldn't under fel they did their job but the result the defense is saying it's not that not criticizing the jury they followed your instructions instead of the result is that you have the jury finding is just right said the jury finding the reduced probability mitigat no i don't see this consistency i don't see how they're consistent because you have one victim only one in the jury reached one conclusion saying he was there is a mitigating factor shot someone in the vein it was a little baby sitting in a you know sit with the result or reasoning or what should happen here be different because if he gets to use the self defense as fires surely into the car is there a case like that where the woman was sitting the predicate felony charges the victim individual who died and so unlike that case we have on charges and convictions against the free the funny thing about aggravated discharge is it all you really have to say is that they shot it in the direction of another person and unless you're talking about a murderer it's just you and the victim in the room there's likely to be somebody else around it seems like if i me because the act of shooting him and be active destructive far right inherently the same thing so so what is what is essentially the exact same act by happenstance of there being another person there can be either if i read into this that i had a reasonable self defense argument then i would be depending on whether there is another person there or not i could either get second degree or first degree felony murder but that that would just because i missed this  in the context of deterrence we have felony murder because we wanted to target the forcible felony is from being taken place of all we say we dislike those things so much and we want to pay such returns but even if someone accidentally dies in the course of that felony you're on the  your theory and given that a trial judge would likely always convict on the greater offense how in the second degree murder or even continue to be beyond me is it in the way of wro facts the whole issue isn't is it looking at what the intent was the whether there's any felonious intent i mean morgan doesn't really morning says that if the phone is intent is really the same as he was trying to kill is grandfather no question but it was mitigated and so because firing the gun was trying to kill him and then she was like an afterthought but and then in baby case it was clear he was trying to kill the baby and by throwing the baby that that florrie's intent of the aggravated battery was was clear here you're still going to have the same situation where the predator felony does not get med the imperfect self defense instruction jury will be instructed the next time either that's right and so we're still going to have the same we're going to go in circles right you're going to have to didn't start in peru that's all i got but they want to birth that's right and i think what they're saying is the jury obviously didn't laugh this defense out of court because they gave him halfway right i mean this was a completely not justified in using force by destruction or fire and then it during this intentional in strong probability issues instructions they had to fight he wasn't justified i think the defense is saying is they thought they could understand that if you go through the issues instruction you see no justification and i can also say if you go to the definitions instruction that is saving by justification and we all know this whole case is about shooting a gun right everything that's going on in this in this trial is about shooting a gun and i think the defense is saying that's a really unfair for a instruction and i was sitting here wondering first of all why we had you hearing all this is not the classic felony murder case where somebody starts something and then there ship and then he says well i thought he was going to shoot me and we say no if you're escaping from a crime you can't shoot at the cops who pulls a gun on you because you thought he was going to purchase if you break into someone's house and someone comes on the street with you and you can say i thought he was  defense you can argue self defense to aggravated discharge he didn't argue it's the jury thought it was at least some like decent argument because they gave him after a joke and yet it was a dream struction saying you're not justified in the use of force if you only the jury had been actually told if there's an independent well used purpose they may have reached something that maybe seems well more consistent than what we have here but the proper way for  is as to the ag discharge a person is not justified in the use of force if he's committing aggravated destruction a fire boom out that jury instruction right there i think we can take a guess with jury instructions but when he's shooting that first shot at least aggravated just charge of a fire he doesn't get to use justified use of force and that means he's guilty of felony murder which is type he kills someone in the course of the felony usenet that the nightmare scenario of that jury instruction grandfather was second degree yes because that's where the provocation was serious provocation second degree murder of the grandfather and also felony mercury right there they had a problem with that and then the grandmother there was effect of allowing the state to bypass completely the second degree murder statute i mean in my view do i have this wrong or are those two different things from the case because i think those are two different lessons we've taken from the supreme court i think one are the t thought was the armstrong from his grandfather and there's no question he was actually directing his acts at that man right and it and the mother the grandmother was there and so that was morgan now now we're not in that situation when we take a person who is directing himself clearly at that they are he is shooting at that man he is not shooting at some bystander in a car on the street no question about that he's not shooting at that person now i guess the debate is is this really mor because he was he was directing himself to be on and the innocent bystander happens to be in the way but his actions were directed at the v a and so under morgan since his actions were directed at bay and somehow this other person is is she the grandmother is the young man on the street in the car is he allowed to argue transfer that right there are to you they're allowed to say we know you were shooting this we shot that we were intentionally shooting this person but we're going to transfer to this guy but then when the defendant wants to come in with a second degree that he can he's got convince  you convinces the jury he's not allowed to transfer that that's the subtle substance of what's happening now you should be creative pleading of felony work they're able to keep the they're allowed to transfer the intent but they're not allowed to transfer the mitigation of that that's best for the state but are you yeah and that's let me ask you this what does that word intent mean why do you get to transfer the intent is there something about that and we talking about intent or are we talking about  important if there is this other loney's intent and then each case should be decided on it's going to kill or kill your ex and then you decide whether or not