good afternoon your honour's my name is leased out for appellant was raga may please the court i'd like to reserve three minutes for a bottle please petitioner david alford shot hun's heath in the back of the neck and dumped his body along highway one there is no doubt about that just like this court's decision in mays against clark we know the facts of what happened here we know that mr alford is responsible without any reference to mr alford statements to police and without any reference to his trial testimony heats blood was found all over the front seat area of mr office car mr alford's blood was also found there because when alford shot the gun through mr his head the bullet entered the back of his neck came out the left side of his head where alfred was holding his head in place it shattered his ring it broke his finger and left alford and he's blood in the front seat of the car there were cell phone records text messages eyewitness identification that placed alford heath together on the day of the shooting instead of calling police afterward alford destroyed the evidence he burnt his bloody shirt he discarded bloody rags he cleaned the blood out of the car as best as he could with an entire bottle of  bleach he cut his ring off he told steve hilton a couple days after the shooting motioning over towards his car you never know when you're going to need a gun he got a tattoo of a gun a skull and a lighthouse on his chest and there was no physical evidence supporting self defense there were no defensive wounds on mr heath there were no counsel to the standard isn't whether we think you could have obtained a conviction without the unconstitutional information or th information was obtained unconstitutionally the standard is whether or not there would have been a substantial effect on the jury's determination so i mean that's that's all evidence that you have pointed out repeatedly in your brief and i'm not sure why that's that's necessarily relevant to the legal standard we have to apply well your honor i believe under brecht or under an unreasonable application of chapman analysis the strength of the government's case is one factor on one side of the prejudice ledger but let me turn to the other side because the key argument that mr alford makes is this evidence the interview statements were prejudicial because the prosecutor used them in her closing argument to make my client look like like a liar but that is a permissible use of prior inconsistent statements and i think that's the most important error that the district court made was failing to recognize there's been no allegation in state court or in federal court that the statements made alford to the police were involuntary he was but you keep you referred to prior inconsistent statements in the trial court was very careful in its analysis when he said that the problem with the prosecutor's argument is not that the prosecutor pointed out and consistencies but the prosecutor continued to harp on his failure to say more even though he had invoked the right to counsel well your honor this this court has held that an omission is a prior inconsistent statement and so i believe that those are proper those omissions are properly impeachable as prior inconsistent statements not when you invoke the right to counsel you can't argue that someone should have said something when you're not even allowed to point out that that they said anything well your honor i don't believe that that's the argument the petitioner has made in state court or here in federal court they've never said that because this was some type of you know edwards violation that you couldn't use that silence and in fact it's entirely the prosecutor could merely have relied on the omissions before invocation alford was mirandized he waived his his miranda rights he voluntarily started speaking to police and talked about what happened in the house and then even made a statement saying oh you know we didn't my daughter and i didn't hang out with anyone that day that was before invocation so it's the district attorney could have used those pre invocation omissions to make the same argument i think that's a critical piece of the district court but isn't here but didn't particularly now that i think that you there's no question that we have a brand at edwards air and  for the moment that the harrison issue has not been waived how does that impact your argument your honor i don't think harrison or lose on applies here and that's because the petitioner had to testify for one simple reason because of the circumstantial evidence of his guilt for murder i resisted the evidence at the outset i won't go through all of that again this was a very strong circumstantial case for for murder even the district court said that it doesn't look like he was impelled to testify as a result of the interview statements he was impelled to testify because of the overwhelming strength of just based on the circumstances of a shot to the back of a head what the just a court actually said you know was that he didn't prove that he was compelled to testify the the problem with that is that harrison puts the the burden on the prosecution to disprove that fact in state court yes i think it's an open question where the burden lies in federal court however i think just to crystal clear distinctions between harrison allusion in this case both of those other cases dealt with a true confession a true confession i did it and then as a result of that confession they had to testify at trial to explain away the circumstances of that confession there was also either a statement in the opening statement in harrison or a declaration from defense counsel and john that my client didn't want to testify in the only reason he did was as a result of the trial court's erroneous admission here he was alford was on the defense witness list before the evidence you're ruling at issue there's been no declaration in federal court or in state court that alford would have testified and it wasn't a true confession there really wasn't anything that tory about his statements to police the worst he said was we were attacked and i had to do something and frankly that actually supports his self defense theory so where there is nothing inherently inculpatory about the statement to police there's nothing in that statement that forced him to take the stand to explain away the circumstances of his offense he took the stand because it was the only way for him to avoid a first degree murder charge which was the prosecution's main main theory but even putting here is on  that the court said that the principles of harrison are instructive and said under brac he can't say that the testimony would have been identified identical and that they and that the jury wasn't substantially influenced by the the way it came out well your honor respectfully i think it either is harrison error or it's not and i think that you either take the trial testimony as it was actually provided or you find it was harrison air what the district court did of kind of trying to have this in between standard where i'm not going to go in assert that it falls under harrison but i'm still going to discount the trial testimony i don't think there's any support in law for that so i don't think harrison applies and because of that i think you can consider alford's full trial testimony as it was actually offered and that's that's the goal as you know federal court is supposed to review the state court record as it actually exists and as the trial record exists and as the california court of appeal reasonably held and that's the standard of review under his trial testimony was the parodic mad a case of second degree murder of implied malice murder and we know that's what the jury found because it found the personal gun use enhancement true but not the intentional and handsome interest so we know that they excuse me good afternoon your honors dentistry are in for happily alford i thought that what i would do is go back to the fountain head of the rule that statements taken in violation of miranda can be used to impeach which is harris versus new york the one nine hundred seventy one opinion by chief justice berger which was cited in the government's brief and the telling things about that are one of course the statement was occurred one the trial court and chief justice program relies on that gave an instruction that that prior statement taken in violation of miranda can only be used on the issue of credibility he instructed the jury they may not consider that statement as evidence of guilt and the second thing that occurred in harris was that the statement was not permitted to go back to the jury the transcript of the statement was not given to the jury during my deliberation you can see that if he had if he had taken the stand and the government points out there was an awful lot of evidence that he needed to explain away so he may very well have taken the stand but that if he had taken the stand the government could have impeached him to the extent any of the statements he made were actually inconsistent with what he said on the stand absolutely your honor but but i submit that a court under harris the defense would have been entitled to an instruction that they could not consider any of that impeachment as evidence of guilt and of course what happens in this case is the unconstitutional statement comes in in the case in chief that is defended of proof that it was the purpose of the prosecution to use it as evidence of guilt rather than impeachment because at that point they don't know if the defendant is going to testify they had admitted it as evidence of guilt then in order therefore their burden here is to prove two things if they want to use his testimony as impeachment they have to establish to the satisfaction of this court under novo review that that he would have testified but for the admission of that statement and then of course then they also have to show that the statement was only used as impeachment and they don't argue that he would not have testified had the statements nappanee admitted we argued your honor in the district court the that that it was a constitutional violation which the court agrees with and then rejects the argument by relying on the testimony but but you're correct at that i would submit your honor until the state court relies on his testimony to argue or harmlessness the issue of the appropriateness of harrison simply doesn't come up in the state proceedings but i i agree with the court that it isn't brief the are but i what i would submit to the court is it's appropriate that the harrison issue be before this court because it's essentially a rebuttal to the harmlessness argument that the state has raised in federal court but let me let me also point out something that is really important which is that in closing this state absolutely use that videotape as proof of guilt not for impeachment and the greatest proof of that and we cite this at page twenty nine to thirty two of our brief is time and time again the prosecutor argues he is guilty because of his demeanor look at the videotape which they eventually do in deliberations look at his manner look at look at the way he answered the questions that's not that's not the demeanor of someone who has acted in self defense he discussed his cement business that's not the demeanor of an innocent party because they have impeached him if he testified with with the video rather than just with his statements well what they would have had to do is say ladies and gentlemen of the jury we are going to impeach his statement but please under pro create constitutional law you may not consider anything we say about it to be reflecting on evidence of guilt because that would be an unconstitutional and inappropriate use of the video of the in as impeachment you know as i say that this jury was never instructed of course that this was only impeachment evidence do not consider evidence of guilt and of course the prosecutor did not know any way intent to observe that principle she had put this evidence the end of the case in chief not knowing whether the defendant would testify because she believed in terms of  demeanor and as the court pointed out often what wasn't said in it that it was evidence of guilt and the one other thing i should emphasize is that it is not true that the prosecutor viewed this simply  impeachment and not being incriminatory because what she emphasized was his statement that it's still going to put me in the slammer for x amount of time and what you have because we were attacked i had to do something about it he's saying that whatever i did is in some way going to land me in trouble with the law and they emphasize that statement in closing argument do you agree with the government's argument that that you know with the harrison issue you can't be a little bit pregnant for instance you have to either be all the way in on a harris and if you care is in violation or not i mean the trial court sort of did try to split the baby and say well harrison at least supports the notion that if the testimony might have been different then we should find that the error was harmless well frankly we very much take issue though to rule on the question of whether he testified because of that no claim is made that's why he's testifying how can it be an error for the state court de was it was it harmless and they conceded that those are the two prongs of the constitutional claim i would submit your honor that the harrison argument here is an argument it's an additional citation and it's a rubber bottle so they're claim that this was harmless based on the testimony so i think that the question of the court is raising is it is that harrison claim an exhausted here testify and he's the defendant who testifies and never says in this court i'm trying not because i want to but i'm testifying because of the evidence the state is putting  well if i understand the court and forgive me if i live a few seconds over the court is essentially saying that if you make a miranda motion and you lose you need to anticipate that that will be  overturned and as a result testify because your dell is dealing with this unconstitutional statement made in the case steve case in chief the defendant has to make a record that they are testifying and want to preserve that issue because of the miranda violation because if at some point in the court of appeal they find that it the court trial court was incorrect it is a miranda violation you've made a record at that point on the motivation for testifying below and obligation under harrison and controlling supreme court law to not rely on the defendant's testimony unless it could find in the record adequate evidence that the state had carried its burden of showing that the testimony would have been given even in the absence of the constitutional violation misconduct by using those emissions if that is the direction that the court wants to go we're happy to provide supplemental briefing on whether that type of error should be factored into the brecht analysis second there were other things that the prosecutor used to impeach mr alford's trial testimony other than just the prior interview statements the prosecutor pointed out the intrinsic inconsistency of his trial testimony and made the argument that the defendants had two years between the time he committed the crime and trial to make up any sort of defense that's an argument that can be made irrespective of any prior statements and didn't could only be used  they were not allowed on the merits the jury was instructed as to limited purpose but because this evidence came in in the case in chief i don't believe that they were instructed only to consider it for impeachment however given that that was the sole purpose or the primary use that the district court put that evidence to i think it's perfectly reasonable to say that was used for impeachment because it was a voluntary statement that's a legitimate use for that and therefore it's not that prejudicial compared to the strength of the evidence and finally i would direct this court's attention to mays against clarke which is a case i know this panel is familiar with and in that case they found  harmless miranda error was harmless under at his deferential standard of review and they pointed to other evidence in the record that it was you know the confession was outweighed by that other evidence in the record so i believe good and just in conclusion i would say you know because the interview statement was not particularly inculpatory because the government's case was strong and because the interview statements were only used for the valid purpose of