it is undisputed in this case that mr curry fled on foot police chased him in a vehicle which struck him while traveling at speeds of up words of twenty five to thirty miles per hour it is further undisputed that mr curry's body hit the hood of the car and then fell onto the concrete and that several police officers then converged on his body and bashed his head in the concrete five or ten attention their response was yeah we're gonna take you when we get done here and then there was a later indication where he further rick made that request again and their response was we'll get you over to the hospital when we're done talking to you well i mean you know to say vs case and so on the state courts factual findings are binding upon unless i forget the formulation you have clear and convincing evidence i think that they're wrong i mean that's the reason that i don't think it's an extremely high standard to set aside state cour factual findings and here the state trial court after an evidentiary hearing i think took a different view of your client's state of mind during the interview than the one you set forth in your brief i mean he said that he wasn't as badly as one might expect from being hit by the car and so on and that he seemed reasonably lucid and that his his decision to talk was voluntary so i mean what's the what's the compelling that the withdrawal or the the the the measures that the police officers took to withhold medical attention amount to objective licorice of state action it's in if they he was really at their mercy at that point and he really was left with an ill choice i mean there are factual findings to the contrary i mean i'm less sure what you're citing and so what facts would cite in support of your conclusion that it was objective we coercive but the trial court said he's lucid he's really not in that much pain and frankly when he went to the hospital the doctor said there isn't much to treat here well the facts are not in dispute now the court's interpretation of what those facts meant in the legal construct that issue but in the state court ultimately make a credibility determination i mean they heard what you're all the evidence you're talking about they looked at the video itself of the confession correct yes that's true i believe and they observed him and how he was acting seemed perfectly fine and they made a determination and i guess what you're saying is judge look at the same facts and come to a different ultimate conclusion i i i believe that the deference i mean if i were if if these facts were in dispute if there was some question about whether or not they withheld medical attention or whether or not they bash disabled the concrete ten times then that would be something that you would be obligated to defer to the trial court on but in terms of the the call are submissive that actually i restate your and i'm sorry to do this to you because i restate your position w your position is you don't have to change any of the facts the facts or the facts and what you're saying than is the law was on reasonably apply yes that is what i'm saying ok and so then when you look at the video it's the undisputed first that the first portion right at least post judge lawson's opinion the first portion was improper not his confession is they then give him his miranda warnings and he then confesses in full yes that is so under l stad which is clearly established why isn't that sufficient well you're leading me into the second issue which is funny because we look back to the voluntary in this question when in terms of of assessing whether the the issuance of the miranda warnings was effective in whether it was sufficient to purge the taint of the of whether there was a break in the stream of events in terms of assessing whether the delivery of the warnings was sufficient to purse the taint in the else the court talked  passage of time that between the confessions the change in place of interrogators in the change in identity of interrogators this the application of that law to my case leads to the conclusion that there was not a sufficient break i thought reserve the seabird was the case that emphasized were at least in the plurality opinion and that's kind of where i'm going here emphasize the importance of having some kind of break between the pre war and confession and the post war confession well that the language that i just in siebert which developed more elaborate criteria for deciding whether there was a break but that language from an instead really says the same thing and then miss in this case there was no change as the court knows no change in the interrogation site in the interrogators and no passage of time whatsoever so there's nothing  and if we do employ the seabird criteria which i understand the controversy of doing that they are court has already said that seaver doesn't count as clearly was questioned in his home with his mother present initially and then the second interrogation took place in the station house with totally different interrogators there was a significant break in time all of those things served to give the gentleman the young man an opportunity to appreciate that the delivery of the miranda warnings was in place in this his rights were in place and he now had a right to ceased talking or to not talk to the police but in the absence of any of those kinds of criteria that break again break the stream of events that's the language else that there's nothing that told my client ok now that you've been given these miranda warnings you can stop talking there was nothing rather  than the warnings themselves right that's what they say you have the right to remain silent yes but the case law says that there has to be something in the instance where the borning is or given after he's already i've i've made my major points there i do want to speak to harm because i was going to ask you there is i want to ask the court furthermore to find that there is a substantial injurious effect on the influence that influence the verdict in this case in the reason is that there was really very little evidence indicating that in fact mr curry was the shooter as opposed to the other person who was standing on the porch also holding a gun in the absence of this confession the jury would have been able to decide then who do we do we think mr curry was the shooter and there was really nothing without the confession nothing it's the evidence was just as consistent with finding that he was not the shooter answer the questions are often pretty important prefer yes now i mean i understand what you said just now to refer to the entirety of his confession i e the pre warned yes fashion and sort of the post war repetition yes i know you think that both were coerced but if we thought that well i mean  so if judge lawson this correct that the pre pre warned confession was wrongfully admitted yes we would you agree that the admission of that pre warned confession is harmless because the post warrant confession properly came in under his analysis and so the pre warned confession would just be cumulative of what the jury could properly hear from the post one can well of course i'm not conceding i know if this is a hypothetical and asking me if you find right that the right almost warned confession right was properly admitted then yes the for the pre war and there isn't a big mr curry would then have been able also as an alternative he would have been able to testify and say in explaining to the jury that this man shot me before he came charging at me he was holding a gun we got into a  which which one was the second one was properly you have to assume the second one is proper less valuable then it's merely cumulative of the first and so it's harmless in other words if the second one is intimate it properly you have to take that as true hypothetically and now we're looking at whether the admission of the first one was harmful he would he would have the same problem trying to testify in that situation right that he would have if he was so harmed in the jury was then able to give credence to his self defense version so can i just after one more question i'm sorry this is my time not here ok so the key to your case just to distill it down to one point is we have to find that this case is different than al stad because there wasn't a change in location change in interrogators really a significant break in time and so  control the second confession should be suppressed and that wasn't harmless well the key to my the first part of what you said i would agree with the key to my to my case from my point of view is that the second part of the confession was in volunteered the whole confession right here in we look back to involuntary in this if you find that the second that the miranda warnings were sufficient then we loop back to the would quibble with the use of confession really throughout this is an admission at best that the that mr curry was was president that there was a gun involved right he contested some elements of it i've read what he said but can i can i take you to the else dad question do you mind where he is that to me seems to be the key here right is was if you look at the language of alstead your opponent's correct that talks about change in location talks about tying talks about a break talks about different interrogators none of that happened here right that's correct i would i would agree with that characterization but i would disagree that that is first of all controlling  that itself rule against the petitioner so in setting siebert aside for the reasons i briefly what's not clearly established precedent else to provide the general rule about the so called midstream miranda warnings by saying quote a suspect who was once responded to unwarned uncoerced of questioning is not thereby disqualified from waiving his rights and confessing after he's been giving the requisite warnings only quote if there's a deliberate deliberately coercive or improper tactics prior answer and not on the warrant questioning impaired responsibility to give a valid way we're talking about organ right now and that only a last time in change of place could dissipate what it turned to be the course of impact and then they say when a prior state here then that would certainly be relevant to the determination of whether miranda sort of cut the chain or there's you know that that brings us back to your opponent's initial argument and she made this at the outset which is you have to look at of the circumstances and i agree the epidemic friends poses a big hurdle to her but you have to look at the totality of the circumstances he was hit he was slammed into the ground he was brought so all of this around that initial can fashion i think are certainly relevant in the broad scheme but but the sort of source of the minor injuries here i think is a little beside the point the the the point of coercion the sort of drugs to the contrary korea appear coherent and not in any distress he did not appear to be sleepy that the interview itself was not prolonged was approximately ninety minutes in its entirety including sort of both both aspects of this and i think really importantly denying him the ability to get medical care until he told them all they wanted to hear about th i would disagree with that characterization of what i mean what if and he's finding a factual finding was there specific to that question about you're going to be here until we're done i don't know if there's a specific factual finding  video stores in the transfer sort of speak for themselves i mean everything he said kind of goes to the just stress part intoxication distress as opposed to withholding the established a print court precedent on these types of cases where if someone asks for medical care and you say so he gets hit right that's undisputed yes i car he says can i get medical care and the officer says yeah when you're done talking to me i mean what should we do with that fact is that is that sound pretty accurate here i think i think that's pretty accurate i think that it's not the full picture because immediately after within a few statements after and i'm going to let you get to the full picture of what we should we do with that fact i think the court should consider it in the full picture the fact that the officer said you know we'll get you over the hospital when we get done talking it will take some pictures of that we'll get to the bottom of it that was followed you know within less than a minute with the officer saying multiple times you don't have to talk to us that this was not a recitation of miranda that was you know off a three by five card like on on law and order when they say out really fast they went through it the officer said i believe four times you don't have to talk to us if you don't want to i'm not going to force you to talk to us if you want to continue talking to us that's fine these are paraphrases after he started his admission this is well this is after he initially yes his has or he admits that he shot in self defense right right yeah it's very vague and i think that goes a little bit to the harmlessness element t it also goes i think to the yells that question is the cat was an out of the bag here there was minimal facts that are relevant to this case that came out before miranda was given one of those was that shot  admission but they're certainly not a confession he says he doesn't say self defense and that's when the officer says so you're saying self defense it's very obvious from his sort of brief recitation of what happened that he went to the house they tossed out for it he put a gun into my stomach and i took it after miranda's given after miranda is it is made quite clear to mr curry and i think of viewing of the video in conjunction with the state court findings make clear that mr curry was not forced to think the strongest piece of evidence that it wasn't self defense so that aspect of it was that the gunshot wound to the victim's head was straight front to back there's there's testimony from the medical examiner that this could not have been sort of face to face straight you mean mr curry recognizes him he says that curry announced his name is jeff and said he wanted to see if he wanted to see the victim mr jackson and jackson comes out of i believe all three who were in the house and mr ray said that jackson didn't have a weapon he walked outside and none of them saw the actual shooting that's that's correct but they all shared heard gunshots didn't hear any sort of  it was a revolver because there were i don't recall the there were no casings at the scene and so there was an inference that it was a revolver and the so the caliber of the bullets i'm not school so that's assuming the both of the statements are not were not admissible again we've conceded that the first aspect of of it was not admissible i just wanted to briefly touch on the question of siebert and whether that has really any bearing on this case and i think that it doesn't as this court made clear and united states versus ray there was no holding in that case now if this was a materially indistinguishable case from cbre then that might be a different question but here for the reasons i've stated there really was two minutes yet it i don't have that down to the second but approximately in subsequent to that it was approximately ninety minutes so i think the district court's characterization that the the two minutes was sort of like the trailer to the longer movie i think is a pretty apt one first interrogation and ask him something about the stomach did he have an open wound in the stomach at that had what appeared to be a fully healed and what was a fully healed wound so that's i don't think there's any indication that the officer was attempting to sort of pry into this case but it was mr curry didn't have a shirt on at this point and the wound in his stomach was clearly had healed and so the officer sort of asked him what you know what's that about  and curry's answer was that it was the victim had shot him several years prior i believe and so the fact that happened to have anything to do with this case i don't think and reason would be seen as the officer sort of trying to get into the matter but again that's try to look at the record in terms of why at some point i believe they offered him something to cover himself in this interrogation room i'm not sure why he didn't have a shirt at this point but to the extent that that matters to the analysis only i just want to clarify a few of the factual inquiries that you hit there the weapon was never recovered counsel indicated that there was a witness and i'm i think he clarified later but i just want to be sure you understand that there was no witness to the shooting no one hearing but to the fact that they were both there yes on the porch yes but nobody saw who the shooter was and the medical evidence in response to your question about harm the medical evidence yes it does lead to an inference that or does support the inference that it was in that self defense shooting but it doesn't tell us anything about who the shooter was so which is obviously the most important question was are testimony that some of these other people had a weapon and fired it besides curry no because no no the the people in the people that were in the house did not see the shooting they heard the shooting and i believe that they they saw they said that they will the one gentleman said that he saw mr curry and the other man w harmful well except that as i say his the all the inconsistency is an income grew in season his statement or what make the statement so harmful because nobody he just couldn't be believed he's all over the place he's he's blaming some female that i mean there was just it was a ridiculous which in my opinion supports that he was really high on something and he does appear very agitated and i think the officer even admitted  that at the at the walker hearing that he was in a very agitated animated state and he's just saying all kinds of ridiculous things talking about rims on his cars and gold chains and all kinds of things that had nothing to do with anything  i it's clear that he did he was asked you shot in self defense is that what you're saying and he says i guess so he did i want to get i want to say one thing about the because you you do seem to be very concerned about the voluntariness issue and i just want to point out that the court at the trial courts or the court of appeals opinion with respect to whether he appeared to be into stress or he was found to have been seriously injured later on isn't really directly relevant to this point i think you could waterboarding probably doesn't leave any evidence of distress either and i would direct the court's attention to the blood borne versus alabama case where it was said the blood of the accused is not the only hallmark of unconstitutional inquisition so i do install my just ask before to find that the court the court of appeals and reasonably