prism of ethel and the first question is whether there was a ruling that was contrary to or none reasonable application of the holding and miranda which states that if a defendant states in a manner that he does not wish to be interrogated the police may not question him and he goes on to say the mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering further questions and a big isn't a question really though whether he asserted the miranda rights insufficiently clear language and position that the interrogation officers had no question but wh random well that's one question that's the first question the second question is where did he waives the right there is absolutely nothing in this record where he says he waived the right and miranda goes on to say it for seventy five did get a written they got a written the california courts that the invocation of the right to remain silent with equivocal as you point out we review that determination and or the deferential plans of at how is that terminations objectively unreasonable well  i think that when one examines the the way california court of appeal balkanize examination into taking each question and answer and saying well this could have meant something this could have meant this could have been equivocal this could have been  ocal but they did say that they i mean they looked at the video recording as idea and then concluded after examining the entire video recording that it was equivocal in that he actually continued voluntarily to to answer questions and the problem that creates for us is under at that how can we declare that that mix question the law in fact is both clearly erroneous as a matter of fact  and objectively and reasonable under supreme court precedent well if one looks at page four of tab d where he comes into the room he's given them a note and they are saying well the notes pretty pretty brief and he says well didn't you did you just say i could be silent if i wanted to and they say yeah and he says yeah and then they say so you don't want to talk to us and he shakes his head no that's that's pretty unequivocal but then then he goes on to say well you know we've got a lot of questions for you we got and we this is i'm quoting from as i said the d for which is also excerpted and respond  seventeen and then they go on to ask him questions and he says maybe i'll talk to you later i don't want to talk right now how about how how reasonable is that to say for the court of appeal to say well we're miranda is clear if he says to the clue i think any manner he does not wish to be interrogated now when he says i don't want to talk right now after he is said several times and in advance of that he doesn't want to talk either by as well under the totality of the circumstances the fact that that your client voluntarily presented himself to the homicide unit and tendered a written note that perhaps not fully recording in determining whether or not he really wanted to continue answering questions well they're wrong and they're wrong by those on that you can consider the fact that you can consider it but miranda covers  situation at page four forty five it says the fact that he's volunteered some statements on his own does not go to private of the rights to refrain from answering any further inquiry so he comes and gives the note and in context he's saying it's all right there when they say we you have to right now you have to find it in order to for my claim to prevail to find it manifestly are objectively unreasonable and so i'm saying that i must make a finding one hundred eighty degrees away from the state court record i think that would qualify as objectively and reasonable and so if you if you look at the document it's there in black and white you've got miranda saying if he invoked in any way it's an invocation and the fact that he has previously said something or volunteered the statement is not relevant to his right to involve to the case is recognized the same principle that we are familiar with in consent to search cases where a defendant can the case that he may be i don't know the answer to that question i don't know if i don't think it happened here but i think it's pretty clear well the reason i asked the question and i'm sure you can understand where i'm coming from is at the point where you say he an lee invoked his right to remain silent the detectives then start asking him to fill out paperwork in history questions with regard to his wife's medical condition and where they can go to get  information on that condition from the hospital and the doctor and my question is even assuming that he was invoking his right to remain silent as to his role and her dad could well he's not controlling anything when he's invoking and they continue saying well we need to talk and we've got to ask these guys it's not his control didn't say i'm not answering any more questions we're done put me in the holding cell and go do whatever it i just find it hard to say that's ambiguous when he says that basically doesn't want to talk to them i don't want to talk to you right now there's nothing i might agree with you if we were reviewing this time direct review from a federal conviction the problem i have and i think you know i've had this conversation before this you know there is obviously a difference in the way we review the state determination under and and i might agree with you if we were looking at it on directory view but it does make a difference that we're getting this under ed and one of the things that's important in assessing this this question is the context of the full conversation you don't balkanized and i read a case a couple of weeks ago out of this court where the defendant in the context of an interrogation says i take the fifth on that and the majority of that panel said well in context looking at everything that preceded that was really not in that in vocation and that's what i'm saying you look at in context and when you look at all of the statements he context by viewing the tape and so on and they made a determination which you are arguing to us is objectively unreasonable yes and i wasn't inviting us to revisit  dealing with that here but i would also like to make this point that after the what i call the implication there was this interim point where there was some booking information taken that was peppered with interrogated questions as well there was no wa homicide or does he have the authority to control it in such a way that he chooses to voluntarily answer questions about who are doctors and what hospital she went to without violating the fourth well i think the idea under miranda is that if he doesn't vote that's it you don't get to ask even booking questions you don't get to ask well you may be at the get real booking questions yeah you don't get that they don't relate to this you can't peppery and questions about her health which is related implied that by at age at page fourteen when he started talking in detail about the events of july one thousand nine hundred ninety nine that that constituted some implicit waiver of rights when in fact with their well the question on at trial was whether this was a malicious killing i mean he was acquitted of premeditation there's an argument that the course the in the end sort of fight issues about the judge not giving a defense is that related to malice but the issue was mouth's and that and it is hard to conceive of a confession that was detail now there were some fragmentary statements that came in from relatives saying yeah he said he went up and helped put her to death but the question was malice was it a malicious killing and the details from the confession were significant in bringing in that verdict and  think the talker that is the judge is going to the judge during when the jury sent out another said we have a we have a person here that is not convinced that this was a was an already dead at the time he came up and the judge said in the middle of jury deliberations he gave an instruction is that ladies and gentlemen i'm showing you that the evidence all points in the direction of her being alive when he went up there by that he didn't know but i'm pointing to the harmlessness issue because he the judge will light relayed excuse me relied on the defendant's statements to make that point where the statements came from they came from of course the confession they just heard the statements the defendant made on tape stating that  please the court charles raglan deputy attorney general for respondent f l the warden early the supreme court in the miranda decision stated that nothing in that decision was designed to prevent a person from walking into a police station in committing  confessing to a crime and that's exactly what happened in this case he walked into the police station with a note confessing to killing his wife and asking to speak to a homicide detective the state court looked at the totality of the circumstances including that highly significant event in determining that his statements were equivocal and big with as to whether he wanted to speak now follow up on your honest question i believe michigan versus mostly address the question of whether a defendant or suspect has the right to control questioning and then that case they've discussed that the power to cease questioning is the way that a defendant can go about that and that's what happened in this case when he stated i don't want to talk right now maybe i'll talk to you later it's essentially controlling the situation he had already presented them with the no confessing to killing his wife but he didn't at that moment want to talk about it any further they dealt with nonrandom issues and then clarified with him whether he wanted to talk at this point or sometime later and then he continued to talk and when he was ready he talked about the details under the totality of the circumstances in your honour's are correct and i appreciate that from staying on the deference so under at the and under the facts of this case it's not an objective leon reasonable determination just briefly on the issue of prejudice when the trial court instructed the jury and commented on the evidence it did not specifically refer to the defendant's videotaped statement he did refer to the fact that the defendant had stated himself that he put his hand over her mouth and nose and stopped her breathing those statements by the defendant were made to three her breathing and then thirdly his wife at the time nancy ram testified that he put his hand over her mouth and nose and kept it there for thirty to forty five minutes so there was overwhelming evidence on not only that the defendant had stopped his wife's breathing as he stated in the but also the way he did it by placing his hand over her mouth and nose and smothering her that combined with the physical evidence made and inescapable conclusion that the defendant actually smothered his wife to death the pa findings found that particular hammer just showed an effort to breathe by lynn when so and defendant overcame that by placing his hand over her mouth and nose and smothering her to death so it's difficult to imagine a more did expound on the suicide pact that they had together and it's any he talked a lot about the conversation they had agenda that night and she asked him are you strong enough and but he recounted all that to the witnesses i went to a certain extent if any think those additional statements tended to help him and provide some basis for a defense although it was not their legitimate defense right exactly and he basically summarized that those circumstances to the other ession actually what he said was i'm not sure whether i got that information from the agents or from my brother and i read that but i guess the question i'm struggling with is what what was different what was so significant in the what  anything different from in from ones that substance three well as mr ragland indicated there was much more detail in the videotape particularly about the suicide pact which would let give those jurors who wanted to say with this was an intentional unmitigated aside because of their preexisting agreement and that he went forth and acted on it whereas the note really doesn't doesn't make that point but he did say the same thing