rotated in and out throughout the course of the interview the court has before the videotape itself it was emitted in evidence and i would urge the court to look at it i'll refer to it was there ever if we look at it or we've found by what the state court said you are not bound by what the state court said of the state courts to a finding of fact that is clearly unreasonable so if in fact the court said does that go in both directions yes i think that's correct i don't think so when i read the state court when i read the transcript when i read the state court's decision i read joshua harvest's to be saying that it wasn't that he wanted to cut off the interview it's just that he didn't want to be a snitch and be revealed as a snitch but then when i read the state court decision the state court decision instead that joshua said i want to cut off the interview and so they violated his rights by not cutting off the interview and what i'm wondering is can we really examine that and say no he didn't want to cut off the interview he just didn't want to reveal certain information the you can divide his assertions of the fifth amendment in theory in two parts what he said physically during the time between question about the death of mr deal or us and those during the death of mr vigil during the first time in the courts referring to that time because that's when the quote state court of appeals spoke he never ever referred to not wanting to be a snitch he just kept saying i don't want to talk i don't want to talk i don't want to talk i don't want to say anything about those didn't say i don't want to talk as i recall it's that i don't want to talk about that maybe i'm missing a reference go where he says i didn't mean for him to die though i don't even want to talk about it right it seems to me if you find that they speak or it is clearly wrong they're completely off the charts about their interpretation then it's clear you can go back and look at th but he makes that assertion of i don't want to say anything i don't want to talk about i don't want to talk about it about half a dozen times in four or five minutes and it that it's very clear even more so from the take them from the transcript that he's saying he's not going to talk and he it's a question of whether it's saying he doesn't want to talk or whether he just doesn't want to snitch on truck you know he says i don't want to talk he maybe i don't want to talk because he doesn't want to snitch on chalky it may be because he feels bad about what happened and maybe because he knows in his hear moment right the person says if you're talking about several things i want to talk to you about your job and your child's birthday party and your divorce now  talk about your divorce i don't want to talk about that the implication is i'm happy to talk with you maybe i'll talk to you about my job and my child's birthday party but i won't talk to you about my divorce that raises the second question one once any age ever honor that in vocation so if you take the state's position at its strongest he was only talking about a limited topic he only didn't want to take not there they never stopped asking him that question and there are two bodies of law the first begin sixty five years ago in johnston versus in which the court told us that that this body and everybody must be especially protective and deferential to assertion of constitutional rights apart and i don't i don't i don't mean to confuse them and i apologize if i have the attorney general's correct that under havey is review which is where we are there's a certain deference on legal questions but there are legal questions and there is no question that he concedes in 'd say it's clearly wrong and it will come to one of those issues in a moment but otherwise there's a certain factual deference to findings of fact i would agree with that here they listen to the what are the kinds of patterns and the findings of what probably half a dozen cases both from the screen court and the circuit that come to that conclusion so those questions you were if you did know them and then frankly you have to make another set because of the deferential review under p d s you don't get to reject this court just because you assertions right are broadly construed all those are the standards the second one is there's a special body of protections for the fifth amendment and that of course is miranda or begins with miranda because it looked at what exactly occurred here in a says over and over again i don't want to talk if i may jump to the question raised here about the motivation you raised before i would ask you to look at this because even if you conclude that the  possibly thirty minutes into the interrogation of i don't want to talk about it i don't want to talk assume that only applies in that i don't want to talk the indication is he doesn't want to snatch and he doesn't like talking about the physical details of the murder  and that begins at about fifteen thirty one of the tape and i can't urge you to go back on the tape he's asked who was there not who else was there but who was there and he says quote i don't want to say that period he's a there remember he was one of the who was there as far as he's willing to submit to an interrogation why did they have to honor his desire not to talk about particular topics because the supreme court says so they said he may can't get much clearer than that today on earth no they continue to question him for about two hours after that it seems to me that even if the court rejects the arguments i've made that when he first the story is right to remain silent cops have to abide by and they refused and it seems to me that that's where the state court goes wrong it is unreasonable to come to any conclusion it's directly contrary to the notion expressed in miranda and mostly that if you cut off leave me alone i don't want to say anything that the exact words were used in other cases and i cited them in the briefs and that's been held to be enough because the standard is if a person of stays in any manner at any time they are not willing let me take just a moment on the one other the other one of the issues raised and then if i may i'll say the moment to the other issue we have here has to do with the privacy of the two point one five modified instruction as the attorney general concedes because he it in his brief the california courts have rejected that instruction as applies to murder which is what you have here jury instructions are the only advice the jury gets about how to apply the law so they were told here that if there was if he circumstances that violates that process and indeed the state concedes that suing for murder from recent possession of stolen property and some slight corroborating evidence is irrational if it's irrational either the standard that we see in leary and ulster county from the u s supreme court then that instruction is unconstitutional if the night him due process and it clearly prejudiced him and it seems to me may be that something brief that we can get out of the way the instruction looks to me like a good jury instruction in a case where a person's charged with burglary or robbery and he says i wasn't even there and that the prosecution says well he's got the victim's radio how did you get the radio he wasn't even there well friend sold it to me and the instruction seems to be addressed to that type of case to tell the jury if he's got the victim's property and there's some other it's like we're operating evidence it might be enough to tie him to the scene in this case though he's not saying i wasn't even there the question is whether it was murder and it's hard for me to see why the instruction it is useful to the jury whether there's any reasonable way that a jury could make the connection permitted by the inference that the instruction sets up that seems to be the ulster test for whether it's constitutional the theory was that there was no robbery because i just came along later and hopped in the truck so that was the defense theory but the jury has to decide whether there was in fact a robbery and part of a robbery is a taking and therefore the jury is a making process i would certainly need that if the jury was instructed that all you need to find in order to convict this person of felony murder is that after the crime he felony murder not just manslaughter vice thing the point of this was in part the robbery yes and i don't see where i see where the instruction could let a jury draw that inference and i don't see where it's a rational  well i think we're disagreeing here is that you are as i understand your point is that you're saying that the instructions need to be tailored to the defense theory of the case and what i'm going instruction or not is to judge for always depends on what the evidence was in the case what's the evidence what's not just what the defense theory the prosecution has to prove a robbery here not just an after formed intent and that instruction is good for that purpose even though it's not the defense theory of the case but i think we're losing sight of the bigger issue here and the bigger circumstances that the jury would have taken this instruction out of context and simply said i can convict this person the felony murder simply by finding that he had the truck and that's what the instructions said  link is because when you consider this instruction in light of all the other instruction and in light of all the arguments of counsel in light of all the relevant circumstances which is still versus mcguire teaches us we must do then there reasonable likelihood that the jury is going to take this instruction out of context and simply say because there is blood and because there's a recently possession of recently stolen property that we're going to convict this person o anymore there was no such suggestion by the prosecutor that you can do that the prosecutor said look at all the evidence in essence it's a matter that the language is permissive as opposed to mandatory in terms of the presumption error would be the standard i believe it's different right the standard on the ulster county is can you make can you reasonably make the permissive presumption whereas if it was a mandatory presumption it would be simply wrong right off ok but when we just saw it can you make this permissive presumption you simply can't look at the four corners of this instruction you have to interpret it in the context of everything else that the jury was instructed and i think that the parties argued here and the prosecutor did not say look convict this man of felony murder because you because that's the truck and you had some other slight corroboration that was and that's are a lot of cases i may be mixing them up but remembering right that it came in under the rule of completeness yes that's our argument is not making any sense the rule of completeness is that if a party introduced this part of the statement then in order to avoid possible misleading of the jury by the opposite party the opposing party can introduce the remainder of the statement that  is so that the complete statement can be considered by the jury in order to have context kind of like when i was talking to your opponent and he quoted part of the statement i don't want to talk and i said about that that's the rule of completeness issue now it has nothing to do with the hearsay rule and i'm not aware of any party that says the rule of completeness can supersede the hearsay rule let alone the constitutional right of confrontation i just don't get how pitman's the accusation of harvest can come in just because some other it is not hearsay if it is being admitted for a purpose other than the truth of the matter asserted what it was i thought it was admitted for the truth of the matter asserted that harvest did it no it was no reason the jury couldn't do it there was every reason to think that the jury wouldn't do it now let me back up a second here because i haven't articulated the rule of completeness under which this came in ok defense attorney says had told the officer so the clear implication from what defense attorney is saying and the implication that the jury will draw from that is that pittman corroborated what harvest said that is the impression that the defense attorney is trying to create here quite understandably now the prosecutor comes back and says wait a second hitmen didn't in the main corroborate what harvest it meant it contradicted what harvest and the jury disserves the know that the jury deserves to know that these people gave conflicting stories not nearly consistent stories jury would interpret that the prosecutor does not say look take this for the truth to the contrary the prosecutor says that man's a liar he's a prosecutor doesn't get to give the instructions to the jury t judge gets to do that i understand that but we interpret the instructions in the light of the prosecutor's arguments and the defense counsel's arguments and all relevant circumstances at the trial now the jury know i talked to yours who said well as a prosecutor he would just the kid didn't know what was going on but i heard the testimony well the testimony of pittman it's obvious that he was a liar there's no doubt about it he's telling a story that is going to first of all that's inconsistent that he keeps changing proceed nice being there and then he you know gradually up to it but everybody agreeing to it and with a liar the only thing the prosecutor was trying to say is stop talking to harvest once he said i don't want to talk about that anymore police did have to stop talking to him about  that i was suggesting in my colloquy with your opponent that he was saying i don't want to talk about the homeless not that i don't want to talk to you i don't want to talk to you about the homeless guy ok i don't want to talk lures anymore i am upset he was crying whatever it was clearly in the context of questions about that he said i don't want to talk about that not the only one but a major criticism of appellants position i'll just read you one the attorney general has not identified any court that has ever  held the admission of the defendant's statement under these circumstances and again on page thirteen responder has not cited one decision from any court upholding the admission of a confession and persuade you that it is reasonable for the state appellate court in applying that united states supreme court authority to reach the decisions that it did we have taken the position repeatedly as they say the public courts that you may still electively invoke your right to silence that is to say talking about to me about crimea but they can go on talking about crimes he now i believe that appellant would agree with that that that is a reasonable interpretation of the united states supreme court the question that we disagree about is whether the state court court was reasonable in finding that that is exactly what occurred here now we have a new argument the new argument as i understand the point to be making is you know invoke with respect to this jail the second guy i said i don't want to talk about who was there so you can't talk to me about who was there or who else was there or you can't talk to me unless we keep this confidential or whatever ok i the problem with that argument is never many it is an exhausted he never made this in state court this is a new  takeoff designed to rebut what we have been saying here that argument has always been invoked with respect to a vigil i said i did not want to talk about the j or else you must deem my in vocation with respect to g l or us or whatever my in vocation was to apply as well to the chill so we are now doing what defendant so often do i've got forty six seconds and i think i'll give everybody a break and not use don't use ninth circuit authority if it has any benefit at all to us because twenty to fifty four date says that the state court determination has to be an unreasonable let me respond to two things at the end of this argument which are complete nonsense he argues that i've said for the first time at this podium that my client is sort of his right to remain silent during the interrogation of the it's in the opening brief on page fourteen forgot to mention something sometimes going to depend in case we start asking a lot of questions of the lawyer for the first defendant and the lawyer for the second defendant never gets to argue if you would like us to divide up the you know just as you say we'll be fine yes yes