to silence and whether his inculpatory statement was voluntarily made however if there are questions about any of the other issues i'm happy to answer those as well at the heart of this case is the question of whether roberts style or is invoke his right to silence when he said can i be done answering questions now because you're just asking me the same questions over and over and i just told you the truth both the core initially denying the motion truth the press and the state and it response to brief argued that the indication was not clear and unambiguous and because it was phrased that the question and indication formed of the question however can still be clear and unambiguous in miranda itself the court stated that a suspect could invoke his rights quote in any manner there was never a requirement that the invocation had to be in the form of a declarative statement in fact there are numerous cases where courts have found clear and unambiguous indication even where the festac brave has invocation as a question notably stivers did not use hedge words such as might or should rather he asked can i be done answering questions now a clear inquiry into his present right to stop answering questions the answer was yes he could be done answering questions now but instead of clarifying the officer shouted and swore at him and shamed him for being for complaining about being  i thought the court went ahead and suppressed a good deal of the statement the court suppressed the very end portion of the statement which included where mr stivers demonstrated with a ball but statements writing he did yes he did he deny it throughout up until the end when he eventually did make the i'm not i hate to move you off center but you have such limited time i have a question about the state of mind evidence state of mind evidence ok sure these facebook messages between mind state of mind of the only relevant or at minimum the morning of the day where c l presented with the areas that the hospital so we're going back to february nd february rd february th i believe this is the day he went to the hospital with february th but in those several days leading up to there was never any indication that mr steiger planned anything that there was anything about his state of mind in the several days leading up to the day that c l prevented with the entry that the hospital so all of those messages were entirely irrelevant to prove the state's case they were only only point of view messages could possibly be would be to paint him as a philanderer are as add boyfriend a bad father and somebody who is pursuing an inappropriate relationship with a teenage teenage girl though i agree with you completely that those messages were are not relevant to the charge well even though i have questions about their relevancy the matter one of them preserved in the lower court is that correct what is the standard of review for those work out of your honor if you can give me just one moment of these so my my recollection is that these messages were objected to and that they were pretty properly preserved for review ok so the state does have the burden to prove that that error was harmless beyond a reasonable doubt a of what happened in the game all right what about these other incidents of abuse what do you have to say about in the distant ok for the other incidents of abuse violence i'm sorry of domestic violence yes so again these were these was not similar enough to the charge defense to be seen to be included again stivers that his trial  to get i know i'm i'm rude you off your argument well you have your that's fine that's fine so we have to look at factual similarity and so there is there are no there was certainly no instance where there was any other abuse of a young and then there was one incident involving a child but again it was a disciplinary incident where the discipline with that did not meet the the punishment was not certainly no evidence that that child was injured certainly not the merely injured as a result of that that's the on the other incident had to do with divers relationship with brianna and they clearly had a very toxic and hostile relationship with one another where they fought all the time and they had these these outbursts mean big fights and everybody knew about it but again these were these were five beaver frank between him and his adult girlfriend this is this is not similar to someone who is abusing a and century young child well the statute allows certain acts of domestic violence to be missable what the statutes say about these kinds of acts well they have to be they have to be they do not have to be close in time it's certainly a factor the closeness them in time as to where they heard in relation to the charged offense there's the timeliness there's factual similarity and again i do not think there is factual similarity between these incidents and this case there is also the fact there's also is there the risk of a mini trial when you're talking about bringing all these other incidents then  again these are these necessary to to prove the state's offense or i'm sorry that the offense that the status charges they're not they're not necessary and again they're not similar they're not they were within six months  is not so much of an issue the issue for divers perspective and certainly that these incidents were not similar factually similar enough to be relevant and included in the state's evidence against him arizona only preserved right that was so the if you circle back around the basic evidence against your client his admissions and his proximity to the child persuasive and we know it with persuasive in this case because the jury asked to review the videotape of the statement which strongly suggests that that great way was indeed playing on this statement that was a lot against them do you think the fact that the jury did that makes the evidence close in this case i think we can face yes but the evidence was close we had just we had it competing expert witness testimony there was that there were no no one said anything was wrong with c l until later in the afternoon and yes that the statement was made under circumstances where you know it staggers maintains that it was that it was illegally obtained it should not counsel your honor mr savva and in this case did not invoke his right to remain silent when he asked can i be done answering questions now because you're just asking me the same questions over and over an order don't want you to ask me the same question over and over again but i'll answer other questions and that's exactly why on portman mr thagard did they asked other questions and he proceeded to answer them as the scapegoat and defense counsel opening defendant made incriminating statements to his mother suggesting that he is the one who injured he told his mother don't mix story stick to what i told you he later texted her asking did you tell them what i did meaning presumably law enforcement he then told her to delete this message these are statements he made to his mother by text message the defendant made comments to brenda livingston while she was pregnant and front of other people hoping that he wished that both she and  robert meek and neighbor testified that he heard c l crying loudly and then suddenly the crying stopped meek later observed defendant mother and her boyfriend walking shaking their heads holding their heads in their hands after they had come to the apartment was not and the most significant evidence that was presented in that case was the medical evidence medical experts for the state including experts in pediatrics forensic pathologist a forensic anthropologist the attending physicians in the emergency rooms head trauma because you have a break if the jury heard all the evidence they believe the state's medical experts over the benefits medical experts these injuries are not consistent with the medical evidence that defendant presented in his defense so your honor this evidence the medical evidence along with some of the circumstantial evidence seven i just spoke of that was enough to find him guilty in this case even if you take out every other thing the defendant said went wrong in this case your honor the plan terms  domestic violence evidence this evidence wasn't possible that you are the state actually moved forward they want to bring again nine different pieces of domestic violence evidence against the trial court exercised great discretion allowed for the nine pieces of evidence to come in and defend and argue that these these four incidents did not bear any resemblance to what happened here in the state disagrees with that very much  hands on a table and punch it over and over and over while the child cry that is child abuse that is similar to what the state alleges occurred here that the defendant beat his child and bit died it doesn't matter if it's a four year old finally brianna testified that defendant restrained her and prevented her from leaving the apartment she somehow got out chased after her they clearly had a volatile relationship went up into did that he left the all alone on the couch and an a unreported and it's important for jury to hear you know what what happens behind closed doors and what happens behind closed doors in the home of robert durst is significant domestic abuse a significant abuse of children which ultimately led to the death of his four a background and a timeline of events so when that girl why he's talking to her and they demonstrate his state of mind to show he is more interested in spending time with her and partying and drinking with her then he isn't caring for his own children so much but  but that's an assumption that you're drawing is you've got a message just going on between two people days before and now you're extrapolating from that because you want to go out with this girl he's not caring made and those text messages to the senate about how you know he doesn't get along with brianna and she talent doesn't get along with brianna goes that the stage for what's happening behind closed doors at home where defended well i mean if brianna had been hit that would be one thing but the state instead of talking about state of mind in the in his argument will this shows what he was doing that day that's different when you're asking for the truth of the they presented to the trial before the trial court found it was relevant your honor i am out of time if i may finish my thought if you finish your sentence for me i think your honor that the evidence in this case is overwhelming absent this evidence or review the video of the interrogation you will see that the officers did not respond to stivers request to be done talking with an assurance that they would stop asking him the same questions over and over and ask different questions instead that did not happen what happened was they started shouting and swearing at him they did not offer him any kind of oh well we don't know we under we see that you don't like asking the same questions over will ask  questions that did not happen secondly regarding the statements that divers made to his mother the state is assuming that tell them what i did as riffraff as a reference to to some to unlawful behavior or abusive behavior but it's not entirely clear and again as your honor noted stivers mother was you know had her own history of abuse and she also had access to the child the fact that in a fight months previous to this incident that stivers allegedly told brianna that he wished she wouldn't she and the baby would die in no way indicates that months later he had some sort of intention to kill the baby this was obviously a statement made and the heat of anger and during one of their many many fights secondly i mean and to to move on the medical evidence was was disputed the state's experts that one thing the defense expert said it that another thing and even if you agree with what the state's experts conclusions were as to the nature of the medical injuries they can only say what those injuries were they cannot of stablish who inflicted the injuries that's a completely separate question and then going on to be statements that send the messages between mr steiger's and miss reilly i think the face description of them shows exactly why they were so troubling here they were because he was more interested in partying and drinking with kerry then taking care of his own children that's exactly why they wanted this evidence in there in the st place because bill look it paints a mess such a terrible person there's no other reason to put depend of evidence and there it doesn't show a state of mind on the day that b l prevented his injury it doesn't show his state of mind at any of the time of that entire day or night when c l presented to the hospital with injuries and when he with succumbing to the injur and if there are no other questions in honors i would just encourage the court to review the interrogation video because it clearly shows precisely what mr savva said and what was that to him in response he clearly invoked his right to violence his statement was otherwise not voluntary the evidence in this case was closed and this court should reverse its conviction and remember any trial thank you