hearing tape recordings that would have impeached the police officer testimony that they had stopped questioning mr falco now after he asked for a lawyer and that they'd honored his invocation of his right to counsel the  would have also impeached the officer testimony about the substance of mr statements that he had said that he was present at the scene of the crime and that his brother had pulled the trigger because his statements on the recordings included a statement i was framed and also he's not my brother in the final airwaves attorneys failed failure to impeach the police officers false testimony that they ha not disclosed his alibi witness and another witness until the day before trial in fact trial counsel had in his own file the police chronological record of its investigation which included notes that the alibi witnesses have been disclosed in november two thousand and four about a year before the october two thousand and trial the combined errors ensured a conviction at his trial because  so i i had a very hard time understanding how it all helps get yes your honor it was confusing even during the hearing there was had to be some correction by the police about exactly the sequence of events during the as i took tallahassee in this one was a continuous process st mr falcon was brought into the interrogation room he was advised of his rights he asked for a lawyer then the police continue to interrogate him they urged him to call them at the misled him about whether or not he could have a lawyer during the interrogation and told him he couldn't have one until after he was arraigned you know they made other statements and continued and also interrogated him about his alleged ga mr telephones rights is important because it must be corrected before it before his any of the subsequent statements can be admitted the statements that were allegedly did and spontaneous during the booking process were made almost immediately after the violation of his right to counsel and so this was a continuous process where those purportedly spontaneous statements were actually the product of the illegality that occurred when the police lied to him about when he could get a lawyer and also did not honor his invocation of his right to  tried to interrogate him he asked a couple times for a lawyer they didn't honor his invocation they then took him reportedly downstairs for booking mr cohen told the booking office really stressed out i'm really nervous what do i do the booking officer said did you talk to the detectives know that clearly by the booking office there is not a booking question it's an invitation for mr cohen to go back and talk to the detectives and what that demonstrated was that this was a continuous process that the police officers were including the booking officers acting as a teen to extract the statements from falcon this wasn't a separate incident in the booking area where mr falcon just spontaneously and on his own made the statement he made it in response to the questioning by officer  voluntary statement later and the framework requires the court to look at whether the process that resulted in the statements was it a continuous process or was there a break in the stream of  s and here there was no break it was essentially four police officers there were two detectives to booking officers and in fact another officer baker who joined in on this we're all working as a team during this entire interrogation process they tried to interrogate him they took him downstairs they took him back to the detectives then they took him back to booking and then they took him back to the detectives again there was no break in the process at all so the clause of opinion it's our argument that this is a continuous interrogation process there was also no change in the people involved the detective who was the lead detective meyers was the person who was involved in all of the n p r days and that all took place in a continuous sequence and there was nothing to break the effect of the original illegality the police officers and the detectives didn't even claim that they read advise science under oregon versus bradshaw directly addresses that issue under edwards the court held that a person once they've invoked can make a ball and very statement later but the gradual opinion emphasizes that but the later process is a two step process in other words you don't just say well volunteered to talk to us after he asks for a lawyer the police are required to show that after the suspect reinitiate a conversation that they advise the suspect of his or her miranda rights and that they lifted a waiver and those opinions emphasize that there are special safeguards in a situation like this where a person has already invoked their right to counsel this isn't like a case where the person has not indicated any reluctance to talk to the police or is not indicated court found that the police had had honored mr felt hones initial invocation of his right to counsel and its entire opinion that of the trial court and the court of appeal rested on that basis they found that there wasn't any violation of his his invocation of his right to counsel and that's where the issue that's how the issue was presented below it was not litigated whether or not the subsequent statements to officer ramos were admissible as far as heinous because the court found that there was no miranda error to begin with and that's why these tape recordings were so crucial to mr falco and suppression hearing because if trial counsel had introduced those tape recordings the trial court would have been forced to acknowledge that the police did not in fact honor his right to counsel this transcript shows that instead of saying ok you want an attorney we can't speak to you anymore they just switched to other subjects and began talking to him about my dad late for questions from when weren't actually  exactly your honor this it comes across as a pretext you will you know a pretext to keep talking to him even though he's asked for a lawyer because clearly these are the detectives and it's not their job to book him but they start asking him about his medical issues they ask him to take things out of his shoe and then they start moving into more substantive questions about are you again member things like that they're still questioning him and they're not honoring his implication of his right to was also devastating to his defense the prosecutor in his closing argument threw out both his initial closing argument and his rebuttal arguments said things like that she never alibi witness never once came forward she never told us you know said anything about having been with mr cohen on the day of the charged incident until the day before trial and he returned to this theme again and again saying that well if you  believe this alibi you shouldn't with him but you shouldn't believe it because she's a liar she just sat there during this entire year that he's was pending and never told anybody that she was with mr holm during the shooting and that was absolutely false and the defense counsel could have presented evidence from the detective's own file that the defense attorney's paralegal who could have also testified had personally told the reluctant to give a declaration after trial there was an obvious conflict between his interest and that of his employer because there would have been the allegation of ineffective assistance of counsel and that wasn't wouldn't have been a consideration at the time of trial so there was no reason to not call him and in fact the district attorney in his closing argument made much of the fact that defense counsel didn't call his own staff to tell the jury that any one of them had disclosed the alibi to the police and that it's so the sum total of these errors the false impeachment of the alibi witness the failure to make a motion to exclude the statements prior to trial and  failure to competently litigate the admissibility of the statements was prejudicial and for the reasons explained in the brief the did novo standard of review should apply because of the court of appeals a reasonable determination of that there were two statements that were introduced in rebuttal none of the statements were introduced in the prosecutor's case and she waited till the rebuttal and then he introduced testimony of officer ramos and testimony of detective myers both  yes was there another question at her home is there i mean ultimately you can even show prejudice here it seems like the evidence is pretty strong here and yet two of the people who were at the conceding that the evidence of identification was equivocal he witnessed mr carroll who testified at the preliminary hearing didn't testify at trial and the only eigen they hastened that he had made was in a pretrial photo lineup and then the witness who did testify at trial had been equivocal in her statements throughout the investigation at one point she identified mr kyle cohen's brother and thought it was the same person that she had identified earlier as the shooter and so she wasn't quite one hundred percent clear in her identification and the record also shows that she ran away from the incident when it st started to turn violent she went for help and tried to call someone so she wasn't present during the entire incident and during the the actual shooting so at the end as to the gun the evidence shows that when the police came to mr duncan's house he was the one that showed them where it was he told them it's in the closet and his statement later apparently was that the person i'm sorry not his statement but the person who lived at that house testified that another individual closet yes your honor there wasn't an explanation for how the gun was moved from under the porch to the closet and there was an indication in the record several comments by different people that the witness who gave that testimony was  had a disability some sort of mental disability and was never expanded upon beyond that again apparently she was somewhat developmentally delayed so it wasn't entirely clear what had happened with her but it the evidence was not conclusive in the identification of mr falconer and also there was an alibi witness in addition to mr thousands girlfriend there was an alibi witness who was not related to him was not  biased in his favor who testified that mr own was at the girlfriend's house around the time of the charged incident so he his alibi was equally strong as the evidence against him in the the attorney general before i begin i just want to make make clear you know the situation that council was and you faced with a difficult case leaving him few options the prosecution established petitioner's role in the shooting with to eyewitness identification evidence council presented an alibi defense supported by several witnesses as an alternative theory now i'd like to focus on the miranda claim because that's i think you know if it relates to the alibi claim but i want to be clear the two statements that were admitted in this case or admitted were properly admitted one as spontaneous statements made to the booking officer and the nd statement to the type that myers was probably admitted once he read reinitiated the interview process in it in itself was neutral nature it didn't ask petitioner anything about the crime and i was the one who initiated the conversation and didn't ask any follow up questions or you know ask any details about position or statement that statement  sorry it was that's the statement that the same statement that he made later he wasn't you know with as much detail but i was i was there but it wasn't you know it was my brother who who did the shooting yes and the nd statement the one the one both of these statements were introduced that's a problem but i don't think it was raised in the opening brief and i tried to the greatest why we've why the statements that were admitted why they were properly admitted i think the transcripts ordered a finding that these were all separate interviews of course the book right to counsel and and the detectives that fair enough that i would get you know i got a felt some paperwork they stopped asking him questions it was petitioner who was asking questions you know what am i charged with do you know i don't know  those those kind of question as far as the booking questions themselves they were all looking questions yang membership and i think we're probably here i can't speak to the police procedures at you know at the time or or get it wasn't charged that they properly asked them the questions and he answered as far as you know whether he was in a gang or not were not admitted at trial so i in anything any of those questions i think are are not relevant to the issue i think does show that it was petitioner the one he was the one asking the question and the detectives were answering those questions as far as the nd issue and if you can clarify your honor i think you're you're that petitioner whispered you know it was my brother the prosecutor makes you know makes the point that you can you know it's very hard to hear and i think the court of appeal in the district or both to mention this it was very hard to hear so chances are you're not because he had and also what's right it was because he kept to a very strict routine when he went to the restroom and in relation to when he took his medication so he did explain why he was in particular aware of that date and then also keeping in mind that the alibi witness did come forward quite early in this case we you know from the date from the dates and when the least notes that it was november th when it was disclosed to them so they must have identified this witness much earlier and it would have been much easier for him to reconstruct what he did that day so early in time i agree if you're going to ask someone a year later what they were doing you know once a temper seventeen they couldn't accurately relate that but in this case the investigation was done early and the witnesses were right and i don't have it in my records but those referenced notes it looks like there were separate notes but those were not included in the record i