tape it but they did not have michael control write out a version of the state nor did they write one out for him and have him sign the entire five hours of interrogation were reduced to notes which were then summarized into a police report and that's correct and we believe that the court structure in finding that there are more and rights were voluntarily wait the court stated that michael crenshaw was responsive but even if you look at the police report summary and the standard for voluntariness has to do with his ability to respond and weave is right there that of the level of ability intellectual ability and process that is not the same as did i take a handful of pills because it's what i believe it's more than the memory of did i take a bunch of pills on top of which he took a bunch of pills when he was sober and paired and then he took the pills and the followed and it was during the interrogation when his abilities were impaired that he doesn't remember how do we not how do we know anything about just that he serves we have the prescription pill bottles that were empty  and we can see from even the police officers and terry recount of the interrogation where they say wow we think he said this and well did he actually say that no he didn't actually see that but he moved a certain way and that's what we that's what we believe crime we should expect him to be there there certainly information on the record to support the inference that he was impaired and the police officers had at their disposal audio and video tape i would i would say eno i don't believe that there is enough evidence record i think the record really shows that he wasn't merely believe in because if you look at even what the state police describe as the course of the interview it's clear that michael crenshaw was basically a response to say otherwise is caused however the police found that night a notepad when they were searching the house with impressions that led them to believe that there was a suicide note so there was one that is that the police that were at his house searching found no pad with actual physical impressions on it that indicated the suicide but i believe that there are impressions even if you look at the record it's clear that mr cruncher was not respons well you could also look at the way the final things of the court said about this decision she said michael crenshaw was response of which we can see from the police report summary and from the test the cross examination and even the direct testimony at trial and at the treasury in the later trial that most of the talking in fact was a response so she also relied on the fact that he was a correctional officer which is totally irrelevant to whether he was impaired because of muscle relax alexis and sleeping pills and she relied on the fact that cheney had worked in a psychiatric hospital for seven years which is totally irrelevant and outside the record so we can look at what they t are on the record and so it's not necessarily credibility germination it's things that are said during the course of testimony that in terms of the law so it's the law of whether miranda is voluntarily waived or not and in this case how serious is impairment what's at what point is does that make it involuntary and voluntary waiver of this less than sixty seconds recordings or so substantial is to render the recording untrustworthy as a whole sounds like somebody in distress but you have no idea who the person is who the two people are if there are two people or the naf same person words that has to do with as you said the foundation the relevance of the piece of evidence you have to know what he was in distress and someone was whispering that sounds were all you read the fact that the court found that there was a girl was whispering the court essentially found that she seemed to be in the stress and it was in that someone else was there whispering which caused it but that doesn't make it relevant enough to this particular case and in addition to that your honor there is the actual cell phone recording which when played the trial everyone acknowledged was totally audible that is what was it made it be it's incredibly disturbing and present it it's very the very fact that each says it is a certain thing and you can tell from the recording itself is what makes it so prejudicial because you hear it and you imagine what's happening you imagine because you have sex and i didn't want to and this is a recording that substantiates step and it's too disturbing so the trier fracturable they were here the problem with th no but you should be able to hear more than your cat and that's reporting this reporting as it's in article and that is that the very nature of it you know what ability is what causes it so prejudicial of the stepmother also said that she couldn't be sure that it was michael crenshaw and revivalist of what the stepmother testified to the recording has to be audible on its own it has to be relevant on its own without regard to this other test no it's not support for the evidence they're trying to get to the wire which is that it's a recording of the assault the fact that she had a recording on her phone just means that she had a recording of her phone we don't know defendant couldn't be identified by the recording they specifically stated that in their findings so any prejudice defendant argues of a possible prejudice could happen based on this audio recording being emitted be that evidence instead of abuse of discretion and from what i remembered of the record the prescription pill bottles that were found in this house expired they were empty and they expired anywhere from two eat or drink water for the three days in jail but he did not get he was the sick one released from the jail again there was also inconsistency there or at least illogical testimony from defendant based on the suicide notes that he somehow came in to light three days later after he got to jail gave to his stepmother when pressed on cross examination on whether he if his plan worked if the pills didn't tell him like they were close to house and kauffman's testimony it was consistent with their report and it was also consistent with each other there was evidence from them that defendant was responsive that he did he was alert that it wasn't gauging the interview and that he did guess that was the that was the big one again that was a summary of their i i wish that there was a recording of it as well but that was the summary of their writing and i took it to to me that there were affirmative answers before that they put it all together the defendant replied in the affirmative to that as well again the demonstration of non responsive misfired defendant were it seemed to be on the pretty embarrassing pretty pretty accusatory questions where i don't know i don't know if any defendant no matter what they took would just come out and again all of the main the main confession the main nail in the coffin was at the end when he did confirm that the story they put together which i presume to be based on affirmative answers earlier in the the voluntariness is under question if you look at several areas of my brief for instance page thirty four my in my initial brief where  part house know but that's how we perceived it defense that's what you took it to mean yes that's how i interpreted it and then later on when talking about his conversation and whether he was responsive to questions each person says if there were times you know we were questioning him a particular about something you know when you virtually didn't respond there was always you know a physical response of some sort that would lead us to believe that he was understanding what we were asking and that is the tenor of the entire interview and that is what why it supports the decision that he was under the influence of drugs and unable to waive his rights i apologize for my earlier believe it's about an hour so i think that's still plenty of time for the drugs to been working in fact when he got into the truck he didn't want to drive tractors that he was very tired and that's why he didn't want to drive so the drugs with the information dr chapman report and the timeline that even the police provide that there was sufficient time there there definitely were sufficient time for the drugs to have entered the system infected him and  there is another explanation absolutely but i believe that if you look at the way that this interview went the fact it was an audiotape or videotape the fact that a statement was right now by the police and signed by the defendant nor did he write one out  is very common practice by police even if they don't audio or video tape it all of those things lead to the conclusion that supports the inference that he