[00:00:00] Speaker 02:
The first case is United States versus Hicks, and we'll hear from Mr. Sutherland.

[00:00:13] Speaker 01:
Good morning.

[00:00:14] Speaker 01:
My name is Stuart Sutherland from the Public Defender's Office for the Eastern District of Oklahoma, representing Mr. Elijah Hicks.

[00:00:21] Speaker 01:
May it please the court.

[00:00:23] Speaker 01:
My focus today is going to be on the instructional error alleged in Propositions 1 and 2, but I would briefly just up front like to talk about Proposition 5 just for a minute or two.

[00:00:35] Speaker 01:
The double jeopardy issue with regard to 18 U.S.C.

[00:00:38] Speaker 01:
924C and J as argued in the fifth proposition.

[00:00:42] Speaker 01:
I understand that the government has confessed the error, but I also understand that this court does not have to accept that concession or the remedy.

[00:00:49] Speaker 01:
I would point out that

[00:00:51] Speaker 01:
Throughout the court proceedings, the prosecutor at the district court agreed that should the jury return a verdict of guilty on both counts two and three, the proper remedy would be to vacate the conviction in count two at the time of sentencing.

[00:01:04] Speaker 01:
The court agreed.

[00:01:05] Speaker 01:
The court ordered that should the jury in this case return a verdict of guilty on both counts two and three, the court will vacate the conviction in count two at the time of sentencing.

[00:01:14] Speaker 01:
And then finally, on appeal, appellate counsel agreed that this court should remand with instructions to vacate.

[00:01:20] Speaker 01:
the conviction in Count 2.

[00:01:26] Speaker 01:
Unless this Court has any questions specifically about that issue, I can continue to the Proposition 1 and 2.

[00:01:35] Speaker 01:
With regard to Proposition 1 and 2 relating to the self-defense claim, I think it's important to look at all of the self-defense-related instructions together.

[00:01:43] Speaker 01:
There are three pertinent instructions, and not all of them are given.

[00:01:46] Speaker 01:
The first is the self-defense

[00:01:48] Speaker 01:
defense pattern instruction.

[00:01:49] Speaker 01:
That was given as instruction number 19.

[00:01:53] Speaker 01:
The second is the proposed jury instruction, number six, which was intended to advise the jury as to how they were to use evidence of prior bad acts as committed by the deceased, Timothy Buckley, what I've called, I think, reverse 404B in my brief.

[00:02:09] Speaker 04:
Are we here on plain error on that number two?

[00:02:14] Speaker 04:
I think the answer is yes, because you did not object.

[00:02:18] Speaker 04:
Even though you submitted it when it was filed, you didn't object to the giving of that.

[00:02:24] Speaker 01:
I understand that, Judge.

[00:02:25] Speaker 01:
I would like to make a pitch for why it's not plain error.

[00:02:30] Speaker 01:
I know the government wants to review for plain error.

[00:02:32] Speaker 01:
I know that there wasn't an objection.

[00:02:34] Speaker 01:
But this is not a situation where we're asking the court, sua sponte, to give an instruction that wasn't presented that the court didn't know about.

[00:02:42] Speaker 01:
The instruction was submitted in a timely fashion.

[00:02:45] Speaker 01:
It was February 7th, about a week before trial.

[00:02:49] Speaker 01:
The government immediately filed an objection, not wanting this evidence in a motion to eliminate, and defense counsel responded to that.

[00:02:57] Speaker 01:
dozens of pages, I think, of briefs and jury instructions to rely on on this issue.

[00:03:02] Speaker 01:
And the court understood the issue.

[00:03:04] Speaker 01:
The court said, look, I've got to defer this until I see whether or not Mr. Hicks testifies.

[00:03:09] Speaker 01:
If Mr. Hicks testifies that he's aware of these prior violent acts, presumably he was going to instruct the jury on that and allow the evidence in.

[00:03:19] Speaker 01:
I would point out that this is one moment when I think is significant.

[00:03:23] Speaker 01:
Prior to Mr. Hicks testifying,

[00:03:28] Speaker 04:
Counsel, my question is very simple.

[00:03:30] Speaker 04:
Are we here on plain error or are we not on that issue?

[00:03:34] Speaker 01:
I'm arguing that it's not plain error, but obviously if this court disagrees with me, I have a plain error argument as well.

[00:03:41] Speaker 01:
I would suggest if you want to argue plain error, well, it's your time.

[00:03:46] Speaker 01:
Fair enough.

[00:03:48] Speaker 01:
This is what I would just point out to the court and then I'll move on.

[00:03:52] Speaker 01:
If we look

[00:03:55] Speaker 01:
at the point in time before Mr. Hicks came forward to testify, there was a discussion.

[00:04:01] Speaker 01:
And defense counsel advised the court, and I'm quoting from him, I think if there's some concern for that judge, I know we have submitted a proposed instruction for how to address that, that essentially, and I'm paraphrasing now, that the attorney told the judge, told the judge exactly what the jury instruction was going to

[00:04:23] Speaker 01:
help, and that is that these convictions are relevant for how they influence Mr. Hicks and his state of mind.

[00:04:29] Speaker 01:
And the court responded, which is critical to your self-defense theory.

[00:04:33] Speaker 01:
So just to take the position that the court wasn't aware of the jury instruction, wasn't aware of the underlying issues.

[00:04:43] Speaker 01:
And finally, I would like to point out that

[00:04:54] Speaker 01:
Probably the reason why no additional objection was offered during the final jury instruction settlement was because the judge, if defense counsel failed to follow rule 30, the judge actually, I think, failed to follow the strict terms of rule 30B as well, which states the court must inform the parties before closing arguments how it intends to rule on the requested instructions.

[00:05:18] Speaker 01:
Judge, what?

[00:05:18] Speaker 02:
Well, can I ask you about that?

[00:05:21] Speaker 02:
Because the judge did what?

[00:05:23] Speaker 02:
The only thing that I have ever seen judges do in any federal trial is both parties submit proposed instructions.

[00:05:34] Speaker 02:
Typically, as in this case, there's a deadline to submit objections.

[00:05:40] Speaker 02:
And then the judge will have, during the course of the trial typically, a packet of tentative instructions that, in this case, distributed.

[00:05:51] Speaker 02:
And so each side then sees, oh,

[00:05:53] Speaker 02:
Well, I could easily compare the instructions that I proposed with the tentative instructions that the judge is going to consider.

[00:06:03] Speaker 02:
And whoops, he didn't include mine.

[00:06:08] Speaker 02:
And so you knew.

[00:06:09] Speaker 02:
And so the judge, yes, didn't go through and apply Rule 30B in the way that you say he should have.

[00:06:20] Speaker 02:
I've really never seen a judge do that.

[00:06:22] Speaker 02:
I've never seen a judge go through and say, even though I'm going to give you a packet of tentative instructions, I'm going to go through and go through this academic exercise of ruling on objections.

[00:06:34] Speaker 02:
I mean, it's sort of wearing belts and suspenders.

[00:06:38] Speaker 02:
You knew he wasn't going to include that instruction when you got that packet.

[00:06:43] Speaker 01:
I do understand.

[00:06:44] Speaker 01:
And this is a situation where, frankly, and this might be my lack of experience in the Western District of Oklahoma practicing in the Eastern District, they did something that surprised me a little bit in that there was a jury instruction conference off the record, which in the future I think I would prefer that it be on the record.

[00:07:01] Speaker 01:
The judge wasn't present during that.

[00:07:03] Speaker 01:
I think it took place with the clerk.

[00:07:05] Speaker 01:
We discussed these instructions and

[00:07:07] Speaker 01:
It was determined that this instruction would not be included.

[00:07:10] Speaker 01:
So it certainly was.

[00:07:12] Speaker 01:
But you did have an opportunity on the record to make objections to the instructions.

[00:07:16] Speaker 01:
He did.

[00:07:16] Speaker 01:
And in fact, we went down and objected to many of the instructions.

[00:07:21] Speaker 01:
But just not this way.

[00:07:23] Speaker 01:
Exactly.

[00:07:24] Speaker 01:
OK.

[00:07:25] Speaker 01:
Now, I would finish by asking this court to look at the fairly recently decided case of United States versus Brit, 79, F-4, 1280.

[00:07:34] Speaker 01:
I think it was decided about last August.

[00:07:36] Speaker 01:
And I thought that was an interesting decision, even though it was decided on different facts than the case that we have before.

[00:07:43] Speaker 01:
I think the case does suggest that the district court does bear some responsibility.

[00:07:49] Speaker 01:
for properly instructing the jury when the issue has been made clear to the judge, when the judge knows what the defense is going to be.

[00:07:56] Speaker 01:
And he did.

[00:07:56] Speaker 01:
He knew exactly what the defense was going to be because it was fully briefed.

[00:08:00] Speaker 01:
And an instruction was submitted in writing.

[00:08:03] Speaker 01:
So he had that information available to him as well.

[00:08:06] Speaker 01:
And yet, he didn't properly instruct the jury.

[00:08:08] Speaker 04:
So Council, before all of our time passes in regard to this, I'd like to hear your argument in regards to the

[00:08:16] Speaker 04:
your argument that the trial court abused its discretion in failing to give your proposed self-defense instruction?

[00:08:30] Speaker 01:
Your Honor, it's the law.

[00:08:32] Speaker 01:
While it's not in the pattern instruction, if we look at United States versus Toledo, 739 F-3562,

[00:08:41] Speaker 01:
The case specifically states that the law does not impose a duty to retreat to determine if retreat is a reasonably available option or to determine whether other alternatives are reasonably available before using force, which is intended to cause death or bodily harm.

[00:08:57] Speaker 04:
All right.

[00:08:58] Speaker 04:
That's in keeping basically with your original argument.

[00:09:01] Speaker 04:
But as I was looking at the briefs and looking back at the record, the trial court says, I'm not going to give that instruction.

[00:09:11] Speaker 04:
because it's not the government's position that your client had to retreat.

[00:09:17] Speaker 04:
And therefore, that instruction would be superfluous.

[00:09:20] Speaker 04:
You're adding an issue that may not be there.

[00:09:24] Speaker 04:
Well, am I correct?

[00:09:26] Speaker 04:
Isn't that what the trial court said?

[00:09:28] Speaker 04:
I'm not going to give it, because the government's argument is not that he had to retreat.

[00:09:33] Speaker 01:
I do think that the government essentially promised not to use the word duty.

[00:09:39] Speaker 01:
you know, that they weren't going to misadvise the jury that there was a duty to retreat.

[00:09:44] Speaker 01:
And that's true, they didn't.

[00:09:45] Speaker 01:
We're not arguing prosecutorial misconduct here, that the prosecutor did anything wrong.

[00:09:49] Speaker 01:
Like, the prosecutor didn't want a self-defense instruction at all.

[00:09:53] Speaker 01:
He actually objected to the instruction.

[00:09:55] Speaker 01:
But that doesn't change the fact that both on cross-examination of Mr. Hicks and in closing argument that the failure to retreat was emphasized at some length.

[00:10:05] Speaker 01:
And while the jury can use that in determining the reasonableness of his actions, I believe that without that additional language, I think that the additional language would have made it clearer.

[00:10:16] Speaker 01:
And I think the jury easily could have interpreted the failure to retreat alone as denying him the right to assert a self-defense.

[00:10:26] Speaker 02:
Is the issue whether or not the failure to give a no duty to retreat instruction deprived you of the defense?

[00:10:34] Speaker 02:
What is the overarching legal theory in which we can predicate error?

[00:10:41] Speaker 01:
That's why I think I asked the court to review all three instructions together, because I think they all work together.

[00:10:46] Speaker 01:
I mean, the judge made a decision up front that the self-defense instruction alone wasn't going to adequately explain to the jury what the law was in this case.

[00:10:55] Speaker 01:
He decided, and he did give an instruction relating to the prior reputation of Mr. Buckley and how that could be used

[00:11:03] Speaker 01:
to determine whether or not he was the aggressor or not in the confrontation, which I believe exacerbated the error, made things worse.

[00:11:14] Speaker 01:
It acted as a limiting instruction.

[00:11:15] Speaker 01:
You can only use it for that.

[00:11:16] Speaker 02:
And I understand you made that argument, your brief, too.

[00:11:19] Speaker 02:
When we write the opinion to say we are going to reverse based on the fair to give this no duty to retreat instruction,

[00:11:28] Speaker 02:
you know, our topic sentence is going to be, this violated the defendant's right pursuant to X. What is X?

[00:11:37] Speaker 02:
The failure to allow you to present a defense?

[00:11:41] Speaker 01:
Is it a... That is true.

[00:11:43] Speaker 02:
I mean, it's a question.

[00:11:46] Speaker 02:
I mean... Fair enough.

[00:11:48] Speaker 01:
And as I was writing the brief, I don't know if I cited the case or not, because it doesn't really matter as far as the case itself.

[00:11:54] Speaker 01:
It was an Oklahoma decision that I was involved in some 14 years ago.

[00:11:58] Speaker 01:
It was Owens versus State.

[00:12:00] Speaker 01:
And if you want to look at it, it's 229 Pacific 3rd, 1261.

[00:12:04] Speaker 01:
And what the court said in that case, to me, even though the issues were different in that case, I think that what the court had to say is pertinent to this case, which is that the jury really wasn't given the tools that it needed with which to adequately analyze the self-defense claim.

[00:12:24] Speaker 01:
As a result,

[00:12:25] Speaker 01:
we were denied the right to present a defense, a complete defense.

[00:12:28] Speaker 04:
If we review all of the instructions as you're talking, the three together, there's a marked difference between a question to retreat and a leaving the scene, because that's the third instruction that you're objecting to.

[00:12:46] Speaker 04:
So I'm kind of where the judge is.

[00:12:52] Speaker 04:
So what's X?

[00:12:54] Speaker 04:
The leaving the scene instruction is a proper instruction in and of itself.

[00:13:01] Speaker 04:
And if I review all of these in tandem and together, I think you're in worse trouble than what I do if I had to look at them individually.

[00:13:13] Speaker 01:
Well, Judge, I'd like to keep maybe at least a minute to respond.

[00:13:17] Speaker 01:
But you're right, and that's why the judge decided that just a self-defense instruction wasn't going to be enough.

[00:13:23] Speaker 01:
He made the decision that I've got to give some instructions relating to Timothy Buckley's prior violent nature, prior violent behavior.

[00:13:32] Speaker 01:
I don't think he went far enough by giving a specific instruction as to the acts, but he did make the decision that the self-defense instruction alone was insufficient.

[00:13:44] Speaker 02:
Thank you.

[00:13:45] Speaker 02:
We will stop this clock.

[00:13:46] Speaker 02:
But Judge Kelly, I know it's sometimes hard to interject questions when you're on Zoom.

[00:13:50] Speaker 02:
Do you have any questions?

[00:13:53] Speaker 02:
No, I have no questions.

[00:13:54] Speaker 02:
OK.

[00:13:55] Speaker 02:
Thank you.

[00:13:55] Speaker 02:
Thank you.

[00:13:56] Speaker 02:
We'll hear from the appellate.

[00:14:10] Speaker 00:
Good morning, Your Honors.

[00:14:12] Speaker 00:
Lisa Williams here representing the United States of America.

[00:14:15] Speaker 00:
May it please the court?

[00:14:17] Speaker 00:
I think I'd like to pick up where we left off with Mr. Sutherland and argue that the jury in this case was given the tools that they needed to properly assess the defendant's self-defense claim.

[00:14:31] Speaker 00:
This is really not a complicated trial.

[00:14:34] Speaker 00:
And it's not a complicated theory of defense for the jury to grasp.

[00:14:38] Speaker 00:
It's a street fight.

[00:14:40] Speaker 03:
You hammer away on the fact that he did not retreat.

[00:14:49] Speaker 03:
That argument was made several times with the clear suggestion that

[00:14:58] Speaker 03:
the law required him to retreat.

[00:15:01] Speaker 03:
Now, shouldn't he have been given an instruction that satisfied, you could still argue, but he did not have a legal duty to retreat?

[00:15:12] Speaker 00:
With all due respect, Your Honor, I don't believe that the government suggested that he ever had to retreat.

[00:15:17] Speaker 00:
They did discuss in closing that he could have retreated, and that's entirely consistent with the Toledo opinion.

[00:15:23] Speaker 00:
You know, there is no duty to retreat under the law.

[00:15:26] Speaker 00:
He doesn't have to.

[00:15:27] Speaker 03:
But his available... And nobody told... The judge did not tell the jury that.

[00:15:36] Speaker 00:
The judge did not tell the jury that through the instructions, but defense counsel argued it in closing, and so the jury was aware of it.

[00:15:43] Speaker 00:
And that's really the problem with the instructions suggested by the defendant and why it's legally flawed, is it's only one part of the picture.

[00:15:52] Speaker 00:
The instruction proposed by the defendant was just that there's no duty to retreat.

[00:15:56] Speaker 00:
What's missing from that instruction is, however, the jury is free to consider

[00:16:01] Speaker 00:
the ability to retreat in determining whether or not the use of force was reasonable.

[00:16:08] Speaker 00:
And it strikes me it's very similar as to the flight instruction.

[00:16:11] Speaker 00:
The jury can consider flight, but it should also know that there are a lot of other reasons why someone might flee that have nothing to do with guilt.

[00:16:19] Speaker 00:
If a duty of retreat instruction was going to be given, they should be instructed that there is no duty to retreat, but they can consider the ability to retreat in determining whether or not it's reasonable.

[00:16:31] Speaker 00:
But the defense proposed instruction left that second part out entirely.

[00:16:36] Speaker 00:
And so standing by itself, what the defendant was proposing is not a correct instruction and would not be helpful to the jury.

[00:16:44] Speaker 02:
Well, doesn't that walk hand in glove with Mr. Sutherland's argument based on our recent opinion in Britt?

[00:16:55] Speaker 02:
where there was an argument that the defense counsel's instruction was not complete.

[00:17:02] Speaker 02:
There was a full discussion.

[00:17:05] Speaker 02:
If the judge had said, OK, well, I agree that there is no duty to retreat.

[00:17:13] Speaker 02:
This is a vital part of the argument that the defendant is making.

[00:17:19] Speaker 02:
And your counterpart in the US Attorney's Office said, OK, well, then I want the first clause in that vital sentence in Toledo to be included.

[00:17:32] Speaker 02:
then the court would have been fully alerted.

[00:17:37] Speaker 02:
It would have been able to give a complete explication of Toledo.

[00:17:43] Speaker 00:
Here's the distinction, though, is that in Brit, the trial court acknowledged that defendant's proposed instruction was confusing but needed and then didn't take the steps itself to fix.

[00:17:56] Speaker 00:
In this case, the trial court didn't say it's needed.

[00:17:59] Speaker 00:
That's the distinguishing factor between here and Britt.

[00:18:02] Speaker 00:
What the trial court then instead said is it's not needed because no one is ever going to argue that you had a duty to retreat.

[00:18:10] Speaker 00:
And so I think that Britt, while it certainly does impose a duty on the trial judge to make sure the instructions are appropriate, that's not a duty that exists in this case because the trial court never reached the point of saying we need this instruction.

[00:18:29] Speaker 00:
And really, the issue, the overall constitutional issue is whether or not the defendant was able to present his theory of defense to the jury.

[00:18:43] Speaker 00:
and not including a duty of retreat instruction did not at all prohibit him from arguing his theory of defense to the jury.

[00:18:53] Speaker 00:
Again, this is not a complicated case.

[00:18:55] Speaker 00:
It's a street fight where somebody brought a gun and killed somebody else.

[00:18:59] Speaker 00:
And the issue is,

[00:19:00] Speaker 00:
Did I think my life was being threatened or the life of someone else?

[00:19:04] Speaker 00:
You know, there's that testimony about Jessica and the victim hitting her as well.

[00:19:08] Speaker 00:
Did I think someone was in so much danger that I had to use reasonable force?

[00:19:13] Speaker 00:
And we don't need an instruction on prior bad acts.

[00:19:16] Speaker 00:
We don't need an instruction on duty to retreat.

[00:19:19] Speaker 00:
Those are really superfluous instructions in a very straightforward case.

[00:19:24] Speaker 02:
Isn't that the very reason that it really was arguably very unfair for the court?

[00:19:32] Speaker 02:
Because it was very straightforward.

[00:19:34] Speaker 02:
He's standing there.

[00:19:35] Speaker 02:
He's the only one that's at arm.

[00:19:38] Speaker 02:
The decedent is standing a few feet away.

[00:19:41] Speaker 02:
It starts out joking, and then it quickly devolves.

[00:19:44] Speaker 02:
There are eyewitnesses.

[00:19:47] Speaker 02:
And the whole issue is what your counterpart

[00:19:53] Speaker 02:
Judge Kelly elucidated in closing argument was that he had all of these options to, you know, to walk away, you know, when he sees the decedent getting mad and he's worried that he's drank too much beer to, you know, to retreat.

[00:20:08] Speaker 02:
And the judge decides, okay, well, I don't really need to give an instruction on this.

[00:20:12] Speaker 02:
This is the whole ball of wax.

[00:20:14] Speaker 02:
Because without that duty to retreat, it is a very simple, straightforward, slammed-up conviction.

[00:20:22] Speaker 02:
And then when you get to flight, oh, I really do need to instruct on flight.

[00:20:27] Speaker 02:
Isn't that really a little bit unfair?

[00:20:32] Speaker 02:
And doesn't the straightforward nature of the shooting and the lack of dispute about really what transpired sort of illuminate why a no duty to a retreat instruction was so important in this case?

[00:20:50] Speaker 00:
The government would disagree that it's unfair, Your Honor.

[00:20:53] Speaker 00:
I think that other trial judges may have reached a different conclusion, but that doesn't mean that this judge abused its discretion in making that distinction between giving the instruction on flight on one hand and withholding the instruction for prior bad acts and duty to retreat on the other.

[00:21:09] Speaker 00:
I don't think that the

[00:21:19] Speaker 00:
I'm trying to find the right word, but the distinction between the two isn't sufficient enough to create that abuse of discretion, which is what this court would have to find in order to amend.

[00:21:32] Speaker 00:
It's an interesting choice, and it's one that maybe other judges wouldn't have done, because I do recognize the tension between those two different concepts.

[00:21:41] Speaker 00:
But I would say in this case,

[00:21:43] Speaker 00:
The consciousness of flight instruction is actually more relevant than in other cases because you have a defendant asserting self-defense.

[00:21:54] Speaker 00:
And if he did think that his life was threatened or the life of another during that fight, and if he did think that he needed to use deadly force, his flight afterwards

[00:22:07] Speaker 00:
isn't really explained because if you think you had to do that, I think a jury would or reasonable minds would say, then you would stay and tell the police, I had to shoot him because I thought he was going to kill me.

[00:22:20] Speaker 00:
But in this case, he goes on the run for four months evading law enforcement.

[00:22:26] Speaker 00:
And that really does speak to his consciousness of guilt, which is highly probative in a trial that's all about his mindset.

[00:22:35] Speaker 00:
because of whether or not the jury had to determine whether or not it was a reasonable belief, his consciousness that he did something wrong is more probative than in other types of situations where the court may give a flight instruction.

[00:22:49] Speaker 00:
And so I think because of that and these specific facts, that flight instruction was more warranted here than it may have been in other occasions.

[00:22:58] Speaker 00:
I would also argue that the defendant is asking, an instruction on flight is unnecessary in any trial.

[00:23:06] Speaker 00:
And the defendant's argument is that this court should wholesale reject an instruction on flight in any trial, in any case.

[00:23:13] Speaker 00:
And that's just something that is not supported by precedent or by the law in this circuit.

[00:23:18] Speaker 00:
This is an instruction that has been used in hundreds of trials.

[00:23:22] Speaker 00:
And it's just hard to reach the conclusion that it was an abuse of discretion.

[00:23:26] Speaker 00:
for the court to give an instruction that has been given so often in so many other forums.

[00:23:31] Speaker 04:
Is not that instruction a part of the 10th Circuit pattern jury instructions?

[00:23:35] Speaker 04:
It is, Your Honor.

[00:23:37] Speaker 00:
And so I think putting aside then the flight instruction and returning to the retreat and the prior bad acts, what this court, really what those instructions taken together

[00:23:54] Speaker 00:
All they would do is provide clarification or a clearer understanding to the jury about what the theory of defense is.

[00:24:07] Speaker 00:
And if that's the case, if all a defendant's instructions would do is to provide clarity or clear understanding, it's not an abuse of discretion.

[00:24:18] Speaker 00:
for the court to fail to give those instructions.

[00:24:22] Speaker 00:
It's only abuse of discretion if the defendant then is prevented or prohibited from arguing his theory of defense.

[00:24:28] Speaker 00:
But if you look at instruction 19, the instruction that was given, the jury is told that they have to assess whether or not his fear of immediate harm was reasonable.

[00:24:39] Speaker 00:
And so the defendant was free to argue, I know he's a dangerous guy.

[00:24:43] Speaker 00:
He did all these things in the past.

[00:24:45] Speaker 00:
I know he's violent.

[00:24:47] Speaker 00:
I know he's aggressive.

[00:24:48] Speaker 00:
I know he carries weapons.

[00:24:49] Speaker 00:
And because of that, I thought he was going to kill me that night.

[00:24:54] Speaker 00:
He did not need these instructions to make that argument.

[00:24:56] Speaker 00:
And in fact, they did.

[00:24:57] Speaker 00:
The instructions would just be, like I said, extra clarity, which cannot result in the conclusion.

[00:25:07] Speaker 03:
Isn't that the purpose of the instructions?

[00:25:11] Speaker 03:
To make clarity, to make clear what the various duties are?

[00:25:17] Speaker 00:
Well, I think it's to instruct the jury properly on the law.

[00:25:21] Speaker 03:
But you were saying that all it would do is make it more clear.

[00:25:26] Speaker 03:
So it's OK if it's ambiguous?

[00:25:28] Speaker 03:
Is that your position?

[00:25:29] Speaker 00:
No, no, no, Your Honor.

[00:25:30] Speaker 00:
If the jury is properly instructed and there's no error with the instructions and the instructions on their own provide a full and complete summary of the law, instructions that merely add to that and clarify the failure to give instructions that merely add

[00:25:46] Speaker 00:
to those proper instructions do not constitute an abuse of discretion.

[00:25:51] Speaker 00:
That's the government's argument.

[00:25:53] Speaker 00:
And again, it's not that the trial court could have given these instructions and maybe not have been an error.

[00:26:01] Speaker 00:
The government isn't saying necessarily that the trial court was prohibited from giving these instructions.

[00:26:07] Speaker 00:
But the issue on appeal is whether or not it abused its discretion in deciding that these were not necessary in this trial.

[00:26:15] Speaker 00:
And then very quickly, I don't want to spend too much time on it because I read the room a bit, but the government's position is definitely that plain error applies to the issue of the prior bad acts instruction.

[00:26:28] Speaker 00:
The plain fact of the matter is that there was no objection given during the instruction conference to the failure to give

[00:26:35] Speaker 00:
the instruction.

[00:26:37] Speaker 00:
And as the court noted, the defendant argued that he wasn't entirely at fault because the court never gave them a heads-up notice that it wasn't going to include their proposed instruction six, but absolutely the court did.

[00:26:51] Speaker 00:
They did that when they gave the proposed instruction packet to the counsels, and that's how every trial that I've ever been involved in, that I've ever heard about,

[00:26:59] Speaker 00:
That's how the court communicates its decision on what instructions it's going to choose.

[00:27:04] Speaker 00:
And then you show up to the conference on the record, and you have to put your positions on.

[00:27:09] Speaker 00:
And the fact of the matter is that simply did not happen in this case.

[00:27:12] Speaker 00:
And because of that, that has to be reviewed for plain error.

[00:27:14] Speaker 04:
Before all your time is gone, the opposing counsel addressed the issue of multiplicitous in the event, no matter what happens up here, that the trial court, it needs to go back in regards to

[00:27:28] Speaker 04:
re-sentencing from the government's position, is that a correct position of the law?

[00:27:40] Speaker 00:
there could have been some sort of waiver or plain error analysis put forth.

[00:27:45] Speaker 04:
Well, I'm not talking about plain error.

[00:27:46] Speaker 04:
I'm talking about the last issue of the multiplicity.

[00:27:50] Speaker 00:
No.

[00:27:51] Speaker 00:
Because they didn't bring it up at sentencing, we could have maybe advanced some sort of.

[00:27:54] Speaker 00:
But the fact of the matter is, count two is a lesser included offense of count three.

[00:27:59] Speaker 00:
And this defendant should never have been sentenced on count two.

[00:28:02] Speaker 00:
That should have been dismissed.

[00:28:03] Speaker 00:
And everybody agreed to it.

[00:28:04] Speaker 00:
That's how this whole trial was set up.

[00:28:06] Speaker 00:
And unfortunately, it wasn't trial counsel, so we don't know what went awry at sentencing, but something went awry.

[00:28:13] Speaker 00:
And then we ended up with this sentence, and it shouldn't be.

[00:28:16] Speaker 04:
So your point is that when the court gets through researching that issue, we're going to agree with both counsels?

[00:28:22] Speaker 00:
It's a rare occurrence, Your Honor.

[00:28:25] Speaker 00:
But I think we're all going to agree.

[00:28:28] Speaker 00:
I see I have eight seconds left.

[00:28:30] Speaker 00:
And so if there are no further questions from the bench, I will return to my seat.

[00:28:34] Speaker 02:
Judge Kelly, do you have any questions?

[00:28:37] Speaker 03:
I have no further questions.

[00:28:40] Speaker 02:
OK.

[00:28:40] Speaker 02:
Thank you.

[00:28:40] Speaker 02:
And by the way, the court appreciates the candor, as we always expect from the government on the multiplicity issue.

[00:28:50] Speaker 02:
Bill, we'll hear from you for a vote.

[00:28:55] Speaker 01:
Thank you.

[00:28:58] Speaker 01:
With regard to plain error analysis on the proposed jury instruction six, of course, this court is fully aware, and I don't think I need to get too deeply into the fact that there was error and that the court has a duty to instruct on a defendant's theory of defense.

[00:29:15] Speaker 01:
And the court had already determined that this self-defense instruction alone was not going to fully instruct on the theory of defense.

[00:29:22] Speaker 01:
So I do believe we have plain error there.

[00:29:25] Speaker 01:
a question whether it affected Mr. Hicks' substantial rights.

[00:29:29] Speaker 01:
That's where I kind of get into where I think this court should consider all the instructions together because I think the error is additive.

[00:29:35] Speaker 01:
I think the error is cumulative.

[00:29:37] Speaker 01:
But at the very least, I think we've got something here that concerns precisely a principal element of the defense that was harped on by countless witnesses during trial.

[00:29:46] Speaker 01:
And I believe there was plain error.

[00:29:50] Speaker 01:
OK, thank you.

[00:29:51] Speaker 01:
This matter is submitted.