ok thank you reasonable jurist reviewing the transcripts of the interrogations here could not conclude that officer career clearly informed or even said he had the right to remain silent or that anything he said could be used against him as miranda requires nor could reasonable jurors conclude that we satisfy the a p a under the one and the two and once we do that under pinetti and other cases like it the court gets to review to know about so the a t p does apply i'm arguing that we satisf but for that builds in the same standard i mean you're still going to have to get over the a reasonable standard we do all i'm trying to say is that once we do that the court is allowed to review the question to know that that's all i'm trying to say there are two interrogations here on the same day miranda warnings were given at the first interrogation the two warnings appear in our opening brief at page ten and i would like to quickly read them because they're so important to our case midway through page ten  we have the first advisement the officer says ok ok so you have the right not to say anything you do understand reavis silence officer yes or no read it yes if i can't say anything officers see no ok you have you have the you have rights ok i'm going to explain you the rights you have ok so when i ask you hey you have the right not to say anything ok you have the right not to say yes yes or no you have to say yes or no three this yes this warning to not clearly inform reavis of the right to remain silent in fact those words are mean silent or not used and only after being told that he had to say said no wait till we get to the other location and then didn't you know so he was not read by when they went to the jail there were only one set of warnings and that was that the first set given the person tara geisha at the house so the fact that the officer several just wait till we get over there that you know i mean is that kind of cut against you thought i mean the officer wasn't really trying to push to talk to him he wanted to get to the other location and your client on a sound said well yeah i really don't want to i want to tell you everything or whatever right i think i think theoretically it could cut against this but it doesn't here because the warnings were inadequate and there's no showing that he understood his rights and was entered a valid waiver a court can through  the accuser the consequences of not remaining silent and that warning is quick and it just follows here in the middle of page eleven the officer says ok what you say today can be used gone against you in in a court do you understand no officer ok you have what you say today with us with with me can be used in in against against the court in in the court ok so each each time you say something that can you know i'm i'm not sure he had several express express times where he said he did not understand i think particularly one at the end where the officers basically says hey if you want to if you're denying this and want to talk we should talk to somebody do you understand he says not very well so he several times clearly expresses lack of understanding and then the officer does not  statement the miranda hearing and there he testified that he felt that rebus did understand what he was saying and that he always understood and i believe the record refutes that because when you look at the well as far as the burden of proof on showing that the accused understood his rights and knowingly intelligent intelligently waive them that burden is on the government and the state court here  concluded that the state had met that spurred burden a significantly here on the second warning there is never an affirmation by reavis that he understood that that second morning he never answers the question yes or no and clearly inform there was the right to counsel here it's the first two warnings moving on the waiver of validity of a waiver depends on the particular facts and circumstances of the case including the background experience and conduct of the accused the officer testified at the miranda hearing once he finished with the warnings he just last launched into his questions we have no implied waiver either reveals his lack of understanding leaps off the pages of the transcripts there's a lot of silence and begin eighty and some express statements of lack of understanding he never firm he understood the second morning and reviews testified at the miranda hearing they respond in guatemala he completed only the sixth grade and he could not read in english we said twenty ten u s supreme i'll start with your honor's question regarding whether career asked or told grievous that he could ask for further clarification and the record does affirmatively demonstrate that he did say that that's at page eighty nine of the excerpts of record he says if you don't understand me i'll explain further ok and so throughout the questioning attempted to confirm that rebus was understanding each right as he read them to him and to get reverses affirmative answer that he understood what was being said to him  in addition to that this case is governed by ed and i want to make that absolutely clear and appellant has not surmounted the hurdle of demonstrating that the state courts resolution of the claim was unreasonable either as an application of law or an unreasonable based on an unreasonable to term nation of facts and because of that there is no reason for this court to go to the next step which would be to know for review so how do you what if under at pearl review what have how do you look at  situations that mr reavis wanted to talk to the officer again in the patrol car after the initial conversation and how that was handled what what what how would you fit that into the factual i think it demonstrates that reavis understood he had a choice and an option to speak because at the conclusion of the initial interrogation at his home once he's in the car he was the one who initiated the second conversation which demonstrates that he understood it was his choice to to speak or not to speak which again confirms that korea was warning at the very beginning of the interview that he didn't have to say anything was sufficient to inform me that that he had a right to remain silent appellant takes issue with the fact that the word silent was never used but the word silent is not a necessary legal requirement to communicate that right the the standard under supreme court precedent is whether or not the officer communicated the substance of the rights to the  remain silent i'd even argue that it's perhaps clearer to say you do not have to say anything to somebody who doesn't have a familiarity with sort of legal jargon than to say you have a right to remain silent miranda itself does not require even the word silent to be spoken rand itself says the suspect has to be informed of his right against self incrimination it's sort of how we communicate to a suspect what that means and that means in essence you don't have to give a statement and you don't have to say anything at korea you could get to it it's a career asking jesus or no ok you have you have the right you have the right ok this is a little dialogue where i'm going to explain you the right you have ok so when you when i ask you and then in quotes have you the hey you have the right not to say anything period ok you have the right not to say anything to you understand what is the then then then rebus answers a question all right raises a question i'm sorry and it appears to me he's raising a question having to do with the duty of the officer he says you will be telling me he's asking him that aren't you going to be telling me when i can say nothing isn't he asking him that based on a question a statement made by carrillo earlier hey you have the right to not to say anything and he say you will be telling me so those two things related i guess as well i do think they're related but i think this is question actually refers back to korea was first statement not his second statement and i think what's difficult about reading a cold transcript is just this that you know two of us can look at exactly the same words on a page and come to different conclusions as to what they mean that's what we have that's true but that is the trial court the state court in this scenario had not just transcript but it had the live testimony of korea and it had the live testimony of rebus and so to the extent that there a court was in a better position to make credibility determinations or to you know inform the transcript it would have been the state trial court because that's the only court that got live testimony from both people the way i read that is korea says no ok you have rights ok i'm going to explain to you the rights that you have and then he says ok so when i ask you hey you have the right not  anything that means you have the right not to say anything do you understand and then read this says you'll be telling these basically sort of a confirmatory i get it you're telling me what my rights are and so again like these might be different interest inferences that can be reason to get that yes i noticed that there was not a double barreled argument and i think in the argument when the case was being tried i'm not the prosecutor said confession is the best part of the case i don't think there's a good faith argument that confession wasn't an important piece of evidence and in a case like this it often comes down to sort of the confession coupled with how how it messes with the victim statements so yes to answer your question we did not make a harmless harmlessness argument and i don't intend to throw one at you today for the first time but  moving back to whether or not the statements were admissible and the state courts determination of that miranda issue appellant has not demonstrated that the state courts resolution of this claim was unreasonable under ed and thus he's not entitled to  relief i want to talk briefly about the second warning which is whether or not informed reavis that the statements could be used against him in court and the palance argument essentially fall to korea for leaving out that phrase against him when read in context the first description he gives of that warning does include the phrase against him korea or scuse me riva says he doesn't understand so he goes on to explain further and the importance of that warning as explained in miranda itself is to inform the suspect about the consequences of foregoing their right to remain silent and in addition to that to inform them that there they are involved in a phase of the adversary system and that is to make sure that the suspect understands the police officers are not there on his behalf and that again he's he's in a phase of the adversary system and in this particular situation the fact there's not much of a response granted this translated version but he seems to answer the question do you understand hall and the officers yes or no and there's a blank and the officer goes on and i think again the state courts concluded that that response when when reading the entire transcript was an affirmative response and the way they reached that conclusion followed it with yes or no and presumably and i as i've argued in our briefing he got some sort of affirmative indication which is why he moved on because in every other instance in this interview when he did not get an affirmative indication of an understanding he went on to explain further but even without that we have that and we have the state courts determination that an aha means yes when rebus uses it and he even says that at the very beginning of his interview he uses ah ha and the officer asks him ye c yes is that a yes and he says yes so he confirms that at the beginning of the interview that when he says aha it means yes that's consistent with the rest of the interview where he again relies on that phrase as an affirmative response so the state court jail it doesn't mean that he thinks that the officer was on a friendly track if you're on your way to jail right that's correct i think at that point he would certainly be aware that he's involved in a phase of the adversary system he'd been handcuffed and arrested and placed in the back of the cruiser even before that two uniformed officers showed up at his house at ten forty at night they were driving marked police cars he testified that he was nervous and he testified  me the transcript or flex that at the very beginning he says i've never had problems like this so it clearly indicates that rebus understood at that point in time that he and the officers were not there on his behalf and that he was involved in an adversary phase of the system all of this is to say that the record supports the state courts determination that sufficiently advised him of the consequences of foregoing his right to remain silent in addition to that the state courts reasonably determined that he understood those rights based on the record and based on their resolution of disputes in the facts and based on their resolution of credibility terminations most importantly this is testimony at the miranda hearing where he essentially said he didn't remember anything the trial court rejected that and said it didn't believe that he didn't understand what was being said to him and the state appellate court adopted that factual finding as is typical in these situations time ye novo review that that you are not going to get any relief in this client if week twenty two fifty forty applies to our claim and if we can't meet satisfied twenty two fifty forty then we're not going the tapes were in spanish he just had the transcript like we do but if we look at the record page two eighteen for example at the bottom there's an answer to a question where rivers says aha but i mean quickly at page two sixty two into sixty three of the excerpts he says at the bottom there and then the officers restates the question yes or no and he gets a guess the importance there is that's the second inter transcript toward the end and the officer is still not accepting as mean yes because again like we saw with our earlier one there's a follow up question do you mean yes or no so i think it's unreasonable to conclude that means yes invariably in this case  finally i'd just like to say there's talk about a credibility finding here by the trial judge and in fact there was no such finding and the court of appeal unreasonably determined that there was all the trial judge was that reeves his testimony was not helpful because he was on the able to recall things and the district attorney agreed and said that the only real evidence was to transcript an officer careers testimony and this is that in the excerpts of record