morning may it please the court michael to nocca if you federal public defender appearing on the after class a very long time ago supreme court decided miranda to guard against involuntary confessions brought about by then the police some police started to circumvent that by using the question first one second tactic of attaining a confession and giving warnings and getting state same he said if you look at the state his statement he said of the totality the circumstances it's clear that the officer screwed up or somebody mistake and whatever it was but it's clear what the reforms was that he made a judge said that under the total tally of circumstances of sort of his preface he said that after listening to all of the examination by the lawyers right and the lawyers covered many of things you're discussing in your briefing they cover the link of experience by this police officer and so forth so so what was left out what it what is it that the trial judge didn't hear and didn't consider he heard it he clearly didn't consider and if you did consider it clear that he was referencing only that the man did not give miranda warnings what was required it wasn't he clearly he said not one word about any of the circumstance in fact earlier in the hearing seems crucially relevant evidence is his belief that all he had to do was find look in the guy's eyes say are you telling me that they need to get this do this trial judge knew about the history the litigation there's been a prior trial with this it been a trial like this is just not tried in a vacuum there's a history to and i realize this was a different judge at the second time but he was well aware that there's been a prior trial that had resulted in a mistrial and that one of the big issues was whether or not the the truncate the hearing in some respects you began alluding to that in terms of what he didn't allow it what could he not allow in what in what respect did he let the actual evidence on the relevance objection but i thought what was the question what was the question the question was when you told when you told him he was free to go was that for the purpose when you consciously thinking that five i think judge present question is it's a question i have as well so if you could drill down on that if you want me to start at three or five i can start at three o five but it i'm trying to figure out what it is you think the judge squelched what questions weren't asked what is it he didn't know the questions were asked he probably knew all that that really issues real issues whether he considered it and mike my point three or five at the bottom line bottom of the page there when twenty six is he says his role of it what's irrelevant is the question twenty are you aware that by saying he's free to leave you would not have to give miranda rights correct he found that irrelevant i think that's stark evidence that he didn't believe that he didn't consider this he heard it he didn't stop the defen lawyer from asking a lot of questions but that doesn't mean he thought it relevant or that he considered it's in context it's very clear that the only thing he considered was do i believe investigator cordovan when i i'm and i asked him sir did you do some purpose and he says no i did not in any credibility determination you can't just take that answer in a vacuum all the other evidence here all of it and it's overwhelming i submit your honor shows that he didn't do it deliberately my understanding of your legal argument is you're not asking us to rule that his view of the record was so only unreasonable fact finding on a twenty two fifty four g chip you know what i did say it was a mistake there as a whole i agree with you there's a whole lot of other evidence that what somebody else could believe free to look at all the other evidence to the right of the state you're asking is to say either because i've seen one that he has some application to look at the objective evidence and in some respect that evidence whatever that they had some statement in there in their opinion right they said that the reason it was harmless was because there were two victims and that the jury acquitted with respect becomes of only one right and found him guilty with respect to the counseling to which they said evidence to the jury's disregard of the statement essentially but evidence comes in except for the statement and then that they don't convict second trial going different is the statement they convict secondly the court i mean there was no corroboration trial and it seems that in that that argument the public defender was and the prosecutor were of course then they had that they had that much more time had gone by and the public defender was trying to point out inconsistenc between how the girls had described what had happened over the course of the years is that right that's correct and didn't have more to go on in the second trial than the first more time had passed and there was and there was there was th other part of it that's hard to to glean which is that the extent to which the girls were missed and their parents dissolving marriage was that a major theme of the second trial i can't say it was a major theme was an explanation but medical examination and physical examination of the girls didn't corroborate the sexual assault is that right was that true of both girls and the jury heard that both times yes ok mr dunn when we hear from state and then i'll give you a i think we do your honor because the fairest reading of that ruling given the context of the suppression hearing is that the superior court considered both objective and subjective subjective evidence for the reasons that judge kristen pointed out which is that the evidence elicited at th of that there are some objections that are very peculiar where the judge did not allow the questions to be asked on the grounds of relevance where that question should look relevant to me well to think that the specific question and objection i think that my posing counsel mentioned was on are three or five and the question was were you aware that by saying he's free to leave he would not have to give miranda rights and i think the objection there was actually correct in the sense that the key in korea is not what issues throughout this entire cherokee nation and that's to essentially impeach his notion that it was a mistake on the basis that he was so hyper aware of the connections that's true your honor but even if that objection might have been incorrect later in that transcript actually just the next page the question does get answered or the that evidence does come in the or on i mean one way to look at it is by saying is the way that opposing counsel wants to frame it but i think on hay vs review we have to look at this sort of by presuming that the trial court was doing the right thing following the law and six he says your your honor that defense counsel your honor no you're not going to be heard thanks defense counsel again says just for the record i want to state that part of the part of the argument is it's intentional the judge says i understand that i understand that but that's not the point well that's a loop point well again it depends on what you what he meant by intentional and i think that it's not intentional as to his reason for asking whether he's free to leave but  but the court clearly did understand that the question was the cyber in korea about whether it was intentional to initially fail to brandeis and then subsequently get a confession and then if you look further down on that same page three zero six write the the evidence does come out that you know that's telling him free to leave he's not in custody was that intentional did you intentionally not read him his miranda rights and evidence was then elicited about that issue so again that evidence was before the period court and if you look at the page three or five right after when the court was actually saying it's irrelevant it's the court is saying it's just no it's just a sequence of events which again if we're looking at this with all the presumptions that this court must under at behaviors review that is evidence that the court was looking at the sequence of events the objective evidence going to what detective cordova was intending to do with you know we have in the record cordova's experience as a police officer that evidence was elicited we have the questioning of what happened can you expect come from  opinions sets up and says actually what's happening here which is a whole set of inquiries into what the police thought when they were doing something which has no impact at all on the person in custody in other words from his point of view as to whether his ultimate end it as that's particularly clear here because the the second interrogation was nothing but a rehash of the first so as to whether he was actually adequately war might not have remembered that he didn't do this but he actually he deliberately didn't do it it was willful in the sense that he it's not it's not like he was under some problem why he didn't do it he just didn't do it and he made a mistake so the question is is a mistake the example and sees some of the other cases where things like oh it was a there was a big hurry or there wasn't time or it was he didn't think we as and as you hear he absolutely knew he was in custody right so the question is is not doing this is it clear that the head of the test applies to a situation like this where there's just no doubt the guy was in custody and that the officer knew he was in custody and the officer knew that it was supposed to  know a way to undermine their warnings but after some point he purposely didn't give him the warnings well because the first part of many didn't bring them just like they were legally required because he wasn't custody and so the question is was the t accurate whether they considered the relevant evidence and again looking at not only the court's statement that they consider the totality of circumstances but also the evidence alissa did at the suppression hearing the arguments that the counsel made at the suppression hearing before the court ruled a fair the fairest reading of the suppression hearing is that the trial court the superior court did consider both objective and subjective subjective evidence and therefore the fact determination we have to order to determine in order to overrule the the district court here the court has to find that that harmless determination itself was an reasonable and you know while we don't well  the same thing let's just do a once not twice right ok so i mean the argument there would be that it's the it's a logical conclusion to find that the testimony of the victims here and looking at the closing arguments in the second case there was a lot of emphasis on the credibility of those witnesses and that what and given the sort of persuasiveness and directness of the witness's testimony as compared to the sort of ambivalent equivocal admissions that were made in the statements it's entirely reasonable conclusion to say that the statements didn't influence or warhammer harmless beyond a reasonable doubt  ok thank you and just to say because one trial judge believes one detective statement that and it's bligh but all the rest of the record thought here when he says you're in custody i mean is this not a case that kind of supports the notion he forgot it because there was no reason even to be saying that if it wasn't the predicate for giving miranda one husseini just forgot the warnings because otherwise he could have just gone along was now ok this is like a break in now we're going up the stakes and he's going to talk i'm going tell me some custody that's can put more pressure on him that's why he's holding was in custody and it just lies credibility that any police officer any criminal lawyer any judge it deals with criminal cases as soon as you say custody in an interrogation context that means miranda he knew that ok all right thank