or less that's what you say and then he says i can't afford a lawyer it's almost like the classic syllogism he says you know i want a lawyer not a publicly funded but i can't afford a lawyer he went and equivocally and that's i think that if he said period i want a lawyer period but don't we have to take it in context of the complete sentence i want a lawyer not a public defender i think i thought as he said i want to lawyer but i don't think i'll have one this time because i found out if you try cases on your own the court of appeals always finds a way of reversing the conviction clearly something like that we would just say there was no demand except that's not what he said in this case he said i want to lawyer not a public defender meaning i want at panel attorney or private counsel wait a minute now you can say that he said i want a lawyer a public defender now what is at that particular time what did the state of california provide that would provide a public defender would have provided anything else he actually ended up having a panel attorney appointed t a lawyer but not a public defender so you want to attribute that i don't want a panel lawyer appointed by the court who's from the private bar or a private counsel but honestly i think it's it's irrelevant to this inquiry the question is discussion as to whether the second part is second level well i actually think that even if you put a period after the second part it's still unclear request for counsel still saying i want to lawyer not a public defender whether he wanted a panel attorney or a private attorney appointed is irrelevant to whether or not the officers questioning after he made that indication you know we don't know what's in his mind i mean is there anything in the record indicates he knows the difference between a public defender and  well i think that she's seeking clarification about what the difference is between a lawyer and a public defender but i still don't think that's relevant to whether or not he's invoking his right to counsel whether he wants it he says i want a lawyer in know i think it is absolutely and reasonable i think the statement i want to lawyer actually the government can read it that his statement i want to lawyer comma not a public defender considered in isolation is an unequivocal indication of his right to cop comes back and right here we have the same conversation but there's one or two sentences in between have we we have a case on what that cut off period is that is that there's a sentence intervening or three sentences intervening or leader and we i was wondering i didn't read one i wondered if you had one that can give me that their financial know i remember reading cases where there's a possibly tween invocation like someone like statement i want to lawyer and then immediately enter jack's but i'll answer your can afford it but i want a legal aid i don't want to public defender he works for you now and we're going to see is that the context of what we're looking at or is that second part second tier i think it's second tier result of an illegal interrogation or also involuntary moran of course a compulsion to speak in the isolated setting of the station may well be greater than in courts or other official investigations i think that  conviction should not be reversed on last finds that the state court has applied the supreme court president contrary to its precedent or that there was an unreasonable application of supreme court  t from a conviction on the federal side we would look at whether or not the person's right to counsel was violated you know that's correct and i think what happened and that's the answer the question and then what you're saying is that even though on the federal side we look at it to know that because this is a haven his conviction we have a different standard of review that we apply to whether or not a violation of counsel took place right to counsel took place and that's correct and that's standard you wish to have a supply as the unreasonable application standard your honor undergrad and and that there is a last reason opinion on this case and i think laws clear on that the only case that i can think of right now it's a case that's called delgado however  know i'm not certain to the extent that we're applying twenty two forty five which requires the language of twenty to forty five requires that the state conviction should should not be  application of the issues is is one that's very important as far as one third of the bench is concerned this is not a clear case it's not a cut and dry case standard review very often determines how we vote based upon how we are going to look at the factual situation if it's to ennoble we may well find the right counsel has been violated but if we have a lesser standard reveal we might not and your position is i understand it that there has not been  were you the district court's decision to know that correct as a matter of law it's correct your honor not a factual findings made by the district court should be on clearly erroneous here it was i assertion and nothing else you'd have to agree that that was unequivocal request for counsel we conceded on the brief to correct the record under  well i can't afford a lawyer but i don't want to public defender now tell me why you think that that why we need to apply the context there rather than and take them all together as one statement as opposed to something that happened later in the chair again we believe the standard davis which the supreme court house permitted questioning to clarify whether or not there was an has already been informed of his rights earlier he already acknowledged that an attorney will be provided for him if you couldn't afford one if there was any other question to be asked the proper question was the officer to reasonably ascertain the willingness from the willfulness of the suspects proceed without an attorney now i gather that it's not this case but know the officers under any obligation then to explain after he said well i can't afford a private attorney to say well you have that's all you have you have to have public defender or with our panel attorney you don't think there was any obligation to would be sufficient indication that the suspect to not understand the miranda warning that clarification is called for wouldn't you agree under that hypothetical well we believe that the explanation the requirement under miranda position our position your honor is that the supreme court has not mandated explicit language it needs to follow there needs to be some clarification it needs to be made by the detective in the perhaps have dictated and here the court has left it up to the reasonable detective to make that determination so what you're saying is you're using gave us for the position that when he says i want a lawyer not a public defender ok ok well this is that's up to you that's fine if you want a private lawyer there's no problem i mean answer i can't afford it but i want a lawyer i don't want a legal aid i don't want to public defender who works for you what you're saying is that intervening question under davis doesn't keep us from looking at the context of both of those answers which was interrupted by a partial partial that's why you're citing dave yes you're wrong ok now let's get to whether or not how much ambiguity the need if you take both of these together what he's saying is don't want a public defender our position your honor is that he wanted a private lawyer but he can't afford one it would seem like what he was asking for us i want to lawyer i don't want to public defender what i california did at that time as far as point of counsel is concerned whether they went to the public defender where they want to panel attorney or whether a defendant has a right to choose between the two is there anything in the record itself to tell us that that arraignment they are offered the public defender's office and they don't have an option to get the panel attorney nor would they have an option that's not in their records that doesn't help us so we're sort of left adrift as to whether or not this is and big us and what it means there's no showing what the state of california did or what was in his mind so i take it your view is there was a miranda kerr the error is harmless in this case we suggest that this court that even after a seven day jury trial more evidence was presented this is not from the start of trial until the end that spanned more than seven days but seven days a trial testimony the jury here only deliberated for three hours and twenty one minutes he started the liberation  clock on the jury and decide within that overwhelming evidence is that your position to the extent that it didn't take them that long to reach a verdict i was just so that that there was there was sufficient evidence or at least challenge really only two of those statements were exactly testimonial the first one the reason why it's not testimonial is because it falls under an exception to miranda under this court's own ruling in mitchell and co the second one is really not even testimonial because it was a statement that was gathered in november the interview didn't happen until december so we're really boiled down to just two statements one is joyce testimony relating to join another victim and the only one relating to ruth and whether or not the defendant was married or not married to ruth and we  submit that joy testified here and was cross examined and because under ed the determination of factual issues made by state court shall be presumed to be correct the state court here found that joy testified that during the same time of the charge sexual stall quote the defendant was given during a back rub when he moved his hand toward her right breast and in another additional evidence that july testified even assuming that the statements were error and were improperly admitted those statements did not substantially influenced the verdict and with respect to rut the only statement that came out was that he was not married to ruth now granted that that's an element of the defense there are other evidence that came out it was clear to the jury we suggest that they were not married the defendant was a forty two year old male ruth was an eleven year old they lived separately in the same apartment complex ruth still lived with her mother r and it was never really the defense's theory here that they were merri if the court doesn't have any further questions that would conclude our presentation thank you thank you eighteen months after it occurred she only reported the rape after she was being questioned by police officer and her sister the only other alleged eyewitness testified that the rapes never happened and you know opening and closing statements the prosecutor him of all the evidence the threats against the officer suggested that mr to death was the type of person who would commit a violent crime of this sort the type of person who could rape and eleven year old girl it was the only testimony that suggested that this testimony about