at least the court my name is walter k pile and i represent mr marshall davis the eval principle of federal law in this case is that under certain circumstances the state is not permitted to use the guilt more specifically the rule applies if the first defendant's confession mentions expression the second event that's the so called group in rule after the named after correct that is correct it does not expressly mention mr davis however later cases particularly grave versus maryland said it does not have to directly apparent from the face of this document it was but the focus of the opinion was that the reason that it was should not have been used was not simply that it was apparent something to be left out but rather the focus was that implicated mr gray in other words yes it was yes it was something i've been left out but the focus is whether or not the statement if the jury can immediately recognize that it refers to somebody else then then it probably is powerfully incriminating and the reason is they what goes through the jury's mind is who is that someone else and they as they say in gray they just have to look at the council thing well and they see who's sitting at the counsel table counsel i am looking at nine three gun that he used from phoenix and so this is the first night i have seen that gun the implication i suggest is that that suggests that somebody else what those guns from feelings and if the jury looks at the counsel table they see two other defendants it's incriminating at both ends but i was it was it incriminating it's incriminating because the implication is that somebody else brought the guns from phoenix well  well because we have to remember he's not only charged with robbery he's also charged with assault with a firearm and personal use of a fight i'm sorry i'm from phoenix how does that implicate your client any more than the implicati n you well the crucial difference i think is that you and me are not sitting next at counsel table accused of of robbery and assault with a firearm but was there other evidence that your client came from phoenix yes mark was one testified that he knew both pocket and davis in phoenix that he had boughts two guns and given them to davis's roommate so this could have out and where it's hell in the midst of all because inferences might be drawn by the jury from something stated in the documents i don't recall such a case but obviously the rule is that there has to be an explicit mention or something that would make it apparent on its legs that something had been left out and that you would be likely to say well obviously it was left out of it was the name of this other defendant i'm suggesting that the rule there is not a requirement that that the confession or statement show that something has been left out but rather if it not require that it directly point to a defendant it can point inferentially and the inference as i suggest i found in the prosecutor's statement to the jury where he talks about remember remember the testimony of mark and how he gave the guns  to davis roommate in phoenix and then he says and and these guns then there were this disgust with one gun ins up in the backseat of the car in the same car that marcel davis and what he says was how do you think that gun got there perish who brought up the guy well i think the jury would take that into consideration in deciding whether it was davis who had the gun you remember for example now isn't that i mean just because  morning honors me please the court and jeffrey j cook deputy attorney general for respondent the warden and people of state california your honor just our position on this case from the very start has been that under the anti terrorism and effective death penalty law hundred six the california court of appeals decision when it's consistent with a clearly established federal laws put down by the united states supreme court and that it applied that law to the facts of this case very clearly just over time it started with britain of course which said you cannot have in a multiple defendant trial one defendant making in a criminal snipping statement that clearly implicates another defense you can't do that in richardson v march the supreme court modified that a little bit and said well if the statement is redacted that might be ok however it wasn't until one thousand nine hundred eight that the united states supreme court clarified if it's ok is fixed in california so the california court of appeal when analyzed in this case has the benefit of the trilogy of supreme court cases and also it's on california jurisprudence by the california supreme court now the the redaction obviously referred directly to someone august often hardest lead to the senate in which involved inferences that a jury ordinarily could make immediately even where even where the confession the very first item introduced a trial so i would suggest looking at this case by way of the invitation taking the invitation of the supreme court and looking at cindy that the trial started the prosecutor and defense counsel's waived opening statements the basically confessed he never been involved in a robbery before he didn't know about the robbery until that night or the night before it happened he admitted he was the robber who stood in front of the grocery store waving a gun he said he didn't bring the gun from phoenix and he stated he didn't want to hurt anyone and was sorry for what he had done now there's a few more questions on direct there's a brief cross exam the jury's about to go out for a break when the judge says ok before you go out for a break let me tell you you can't use that for anybody but mr pocket the guy who who mentioned it if you were able to take a poll of the jury at that point and say listen tell the jury what you think of that statement i would think the jury w at whoever's asking that question got well we haven't heard anything all we know is that this mr puckett was involved in a robbery apparently what do you think about the other two defense sir just we don't know there was nothing said there was no reference to them whatsoever nothing along those lines implicated them so this statement by mr puckett offered by the prosecution was not to quote counsel powerfully incriminating facially it was it was nothing now as the case develops certainly there's that information is it's on its face what does it implicate if it down the line then the jury puts it together and goes oh now i understand nothing ok they were found in the car together and i bet you they were involved and i bet you when he said he didn't come from phoenix and we have the testimony from m into the rest of the you know your honor because of course that's what the prosecution wants the prosecution wants this to be a complete package so that the end of the day the the jury thinks well we've decided this beyond a reasonable doubt and often that's what i would suggest in this case the most powerful evidence of course is the