idea here my argument is of course that my client's waiver of his right to counsel was coerced and i'd like to make three points today basically first that he did not  initiate the conversation secondly the officers coerced his waiver i need gating the substance of the miranda warning that anything he said could be used against him in a court of law and third that the officers that point the officers that's what we can't talk to you and he said wait i will talk to you i want to talk to you and respond to argues that this was a real initiation i don't think this was a real initiation i think he was saying i want to talk to you if with an attorney present that is what they asked him do you want you have a right to have an attorney present with you while you are being questioned he says i'll have ok i'll take the at that attorney and they say well no now we can't talk to there's evidence of the record that he did say that anything and and what he did say get the attorney here so i can well you know what he said to his mother immediately afterwards was at first i didn't want to talk to him without no lawyer and if you take away that double negative negative he's saying at first i wanted to talk to them with a lawyer so that's what he's telling his mother and i think when he asks for when he says i'll talk to you after they say you have a right to an attorney at worst i think you could you could find that he was asking for an attorney present while he talked now at worst from my point of view the statement was ambiguous well if the statement is in big us then the burden is on the officer to ask clarifying questions not doesn't answer that question but even if he thought it was what followed eventually was an hour and twenty minutes of him not being willing to answer any questions so i think that that waiter interview  it he just tried to ignore it and move on and what he moved on to do was to coerce that that waiver the miranda warning says anything you say it can be used against you in a court of law basically it's a warning if you talk you could hurt yourself and and ken was told that once if you talk you could hurt yourself that's essentially what but then the officer spends an hour or than an hour trying to give  the miranda rights weren't waived that i may be hearing your argument as saying that means that confession was coerced and i well he talked without the presence of counsel so i think that's seen as an implicit waiver but he didn't explicitly waive them and he didn't voluntarily waive them he waived them after he was coerced to waive them by the officers conduct heard well first of all that the made a lot of special missions that ignored a lot of the facts i think that's primarily where they went wrong like they're well specifically i was a number of minutes to talk to you this is you know a police officer talking for an hour and twenty minutes to my client the purpose of which is to get him to waive his right to counsel we know somewhat what he said we know what he's there based on not from me is w wrote later he what he wrote later just completely it's blank he doesn't say anything about what he did but can says he told me he had all these witnesses he told me he had my codefendant my you know ryan he told him he you know he told me this case my case is very strong that's what he was saying he was harping on the strength of the case for one he was talking about you might have had a reason baby had a reason maybe you didn't mean to do this he's trying to get him to think that it's to his advantage to talk or it's not going to hurt him to talk that's what he was doing any spend an hour and twenty minutes doing that that's a long time to be going after somebody and this is what you're not exactly not supposed to do as i understand i know i haven't seen a case yet this is one someone invokes the right to counsel and but doesn't doesn't start talking on the subject you can spend a bunch of time trying to really get them to waive counsel that's not what you're supposed to you're  supposed to say oh do you want to talk to me or not if you do you know you know then you know you have to waive your right to counsel are you willing to do that yes or no here's the form sign it and we'll start talking otherwise use them to booking if you want t doing then and we have two people that tell us can honest phone to his mother immediately afterwards not knowing that he's being taped and he says at first i didn't want to talk to him without no lawyer and then he sa here look i'm just trying to understand your position because all that happened in the early afternoon yes and you're saying that the coercion happened yes later later and that somewhat we're supposed to find the coercion but and if when they went in the next time he said ok let me tell you what happened this is what happened then i wouldn't i wouldn't be standing here but they go in the next time he won't talk to them he's not talking to them out every trick in the book for an hour and twenty minutes he's still not talking to them from that behavior during that hour twenty minutes when he's explicitly reluctant to talk and refusing to talk refusing to talk about the substance of the case and review cases and the question that's presented here is whether the confession was coerced such that it could be used for impeachment which is the totality of circumstances test now that is a very broad in general test and the supreme court but but then what happens is they just ask questions about the gun nothing substantive about the crime and the officer explains that he knows that there has have been problems in the past in this area where schoolchildren have found guns and that's what he's concerned about this public safety exception he has just about that the defendant tells them where he thinks the gun is and then they go off and that's in the afternoon well that was during this very first attack first so it's a very brief conversation i believe they're in there for  spend three hours trying to find the gun but they can't find it so they come back in at three thirty they have another brief conversation with him they say they can't locate the gun and they ask him if he knows where it is he says i don't know then they leave again for another three hours and in between this is important they're checking on him they give him a jacket when he's cold they give him lunch they give him great juice chips a sandwich and peach cobbler they give him bathroom breaks they give him water again at that point they think they've obtained a search warrant they still haven't found the gun and one thing that's important here is it was not actually an hour and twenty minute interview at that point and i would i would encourage the court to actually way that is not accurate and if you actually read it i think you'll see exactly what happened but it was not an hour into the twenty minute interrogation and that's that's something that is asked of him and he answers no it was not because at some point they stepped out of the room because  saying i want to talk to you but i want to talk to my mother first so they step out of the room discuss whether they should let him talk to his mother and then they grieve that he should be allowed to talk to his mother they come back in and tell him that he'll be allowed to do that then they step out of the room again  seven fifty nine so it's unclear exactly how long they were in the room with him but it wasn't an hour and twenty minutes and it was at that point that the officer said i don't need your statement it's up to you whether you want to talk to me we have enough evidence to know what happened that night but if you want to talk to me you can and there was simply nothing coercive about that statement he never said that his goal was to get the defendant to make a statement in fact if you read his testimony it's just the opposite he's repeatedly saying we don't need your testimony and from his testimony in fact the officer truly doesn't believe that he needs that testimony and that then he's asked you would you prefer to have statements a confession he says well of course i mean in every case a confession can be helpful but we sincerely didn't need it in this case and that's what he's conveying to the defendant then he lets them talk to his mother they do have the phone call his mother says do whatever you're going to do and he says at the very beginning of that phone call i'm thinking of talking to them anyway i was snoring to them at first but they're cool these are all his words and i think i'm going to talk to them so again up to that point no coerci unreasonable which i think would be very difficult to reach in this case there was no prejudice under the braxton injured in this case the only the only statements that were used were were very these tangential points about whether he threw away the bullets or his friend frank white took them really was not at issue and the defendant's own testimony on direct examination was completely sufficient to establish first degree premeditated murder take the statements completely out of the equation these competing statements from his confession which again were minor he said on direct examination that he felt humiliated and angry after he lost this fistfight with the victim a few days earlier he called his friend fr for that puncture earlier right there you have premeditated first degree murder from his direct examination pardon so that these minor points that were brought in from the cross examination on the statements that he made made absolutely no difference in this case and that's the bottom line i have only one more small point which is there's a suggestion that the prosecutor used one of these statements as substantive evidence that is the case d the closing argument that was an instance where the defendant followed the directions of his friend frank white the testimony that the prosecutor was referring to was the next questioning which was then said to the defendant i want you to get out and commit this robbery with us and he said no and that was established on cross examination without any reference to these statements that he may have made to the police and the examination without any reference to the impeaching statements establish that he was guilty of first degree premeditated murder because he said i was angry about losing this fight i told my friend to pick me up and we went around looking for the victim when we found him he gave me a gun instead to pop him i got out and i said this is for that puncture earlier and then i shot it and in fact that he shot a couple of times the first two times the gun just clicked and didn't go off the victim was fleeing and then he fired four more times and shot him in the back so clearly there's premeditation and deliberation but the impeaching statements with the statements that have been given to the police were on these tangential and minor points such difference the evidence that the jury heard which showed first degree murder this is really kind of an unusual case in that he did testify in i guess this is an unusual case and in that he did testify he did testify yes so it's not the  i know you more than used your time thank you the courts will now take approximately fifteen minutes passed before hearing last case