miners jan norman on behalf of the petitioner raymond relays and i'd like to reserve three minutes of my time this case involves a question of whether or not the use of undercover agents and questioning heart speaking with my client in jail constituted coersion on the part of the police and constituted interrogation calling for free calling for a miranda warning is the issue more narrow than that is isn't this a question of whether the california state court's rulings are not unreasonable application they unreasonably applied the facts that they actually had the correct law but they recently applied the factual the facts in reaching that determination so yes there is a deference to the california court of appeal so i mean i saw the front i mean i read the transcript that we have i will confess i didn't listen to the tape of the conversation but there's nothing in the transcript that suggests that your client was intimidated or coerced it sounds like i mean it was a ploy no doubt trickery was and was involved but they just said hey we can't help you unless you tell us right and he told them  i just didn't see any place in the transcript where you could at least in the last room tell me there's something on the tape that's different but reading the words in the transcript i didn't see anywhere where they threatened him said if you don't tell us we're going to do something to you or something's going to happen to you they were there is to say we're trying to help you but you've got to tell us in order for us to help you that was the context now well i have obviously respectfully disagree with you and i think what you have to look at the totality of the circumstance my client is twenty years old he's five foot three and weighs one hundred thirty pounds he's arrested he's thrown into the temple city jail and suddenly this very large gang banger shows up with his but now i'm going to refer to him as a with his actual name which is beltran but basically the guy is six feet two he weighs two hundred twenty five pounds and he's got this you know says head  shaved and he's got tattoos all over his body now he the conversation they have is in my interpretation you've got my client sort of has a taping scared a little bit and you've got beltran coming in and saying to him ar chest because you're fucked up sorry and then he uses you know if refers to african americans in a derogatory word then he goes on again and uses on and on and on his saying that you know you're screwed up if you don't talk to me and roll billy's response very you know yeah and then he keep and then you he's not really saying anything except saying yeah then the next comment you get you just ate you just ain't being real with us fool at least with me for you fucking need to get this shit out dawg you're going to get homie what i see that conversation is you got you got my client who didn't testify as later in the suppression hearing that he was both scared and intimidated so i mean there is evidence that he is interpret in that and the case to us as it has to be you have to consider what he is perceiving so you've got this young tiny kid where there's a great big gang banger who's telling him you've got to tell me the truth man you've got to tell me the truth we just consider the physical stature of your client i mean you're focusing on the physical stature of your client but it seems like we look at the totality well absolutely and it took and my argument is that that that well basically district court never looked terry totality of the circumstances and that the things that were left out were his age and size and the fact that he never been in jail before do you know did invokes fifth amendment right before he was placed in the jail so it wasn't clear from the record but i soon he did not but did he you know i don't i don't know that from the record and you know that's something that i can certainly submit a supplemental letter if i can find that in the record but it seems like that would be something we would know already but just curious so you're going over the record and you're talking about you know kind of the situation there i guess because i've looked over the transcript as well as of i've read it what what's the strongest indication that mr o bliss expressed a reluctance to speak to the undercover officers about the shooting can you point to somewhere in that record because it seems i know i and we've heard about the size and and everything but it seems that he readily volunteer record that says that you know convey said he wanted to say silent and that his will was over for well i think the answer to that is i cannot point to one specific part where he sa gee i don't want to talk that's not what's happening here what you have is there's some conversation going on that then then you get the questioning from beltran and you have my client just saying yeah yeah yeah and then you get so i think what and i think the strongest evidence that he's not come forth is sufficiently forthcoming is beltran's comment saying you aren't being real with us you have to be real with us i mean he is he is telling my client that he's if he needs to provide additional information so that they can help him though that's the context it's not there's not even an implicit threat that if you don't to get real with us we're going to do something to you do you have and that's that's what i think we're here was asking is are some what the strongest comment from beltran that you can point to where there's even an implied threat that we're going to harm you or you something else is bad is going to happen to you if you don't tell us what really happened well i don't agree your honor that he has to basically say i'm going to be chewed up or there has to be an know why would he beat him up why would the ultron beat him up to help him it's not a matter of it's not a matter of whether or not he was going to physically harm my client the point is that my client is being told you've got to talk to us you've got to talk to us and he says he's intimidated and scared of that then let me ask maybe this way because you know what's your best case  for the proposition that the conduct of mr beltran here and officers crosses the line from persuasion to coercion the best argument that i can come up with your honor's is not is the facts that beltran is great big gang banger who is telling my little client unexperienced client that he has to tell him what went on what for whatever reason not even i don't think you have to say because otherwise i will beat him up and i think it's important to remember that  own testimony he wanted to tell it to know that i am a gay member who hates everybody who's not down with my program now this little kid or young man does not want to be hated by this great big gang banger who's in the cell with him and at that point i think it's overcome he's intimidated he's scared he wants to do with this great big guy is telling him to do even if it is it may help him he's  reticent to say anything in his residence reticent are unwilling to not do what this guy is telling me has to do that i think i've run out of my time forgive human  good morning your honour's may please the court deputy attorney general stacy schwartz on behalf of respondent the california court of appeal reasonably concluded that petitioner statements to the officers were voluntary in looking at the totality of the circumstances th detectives never threatened petitioner and he made the statements to them because he thought that they were going to help him but doesn't the totality of circumstances should include the physical aspects and characteristics of your client and  and of the the detective hero list because doesn't look like that was considered at least wasn't spoken to by the california court of appeals and you know i know that that's not maybe not be you know the primary point but it's seems like an important consideration considering the disparity here and the circumstances so does that constitute legal or no your honor first of all the courts both courts the court of appeal and the district court does did consider detective bell trans considerable size but they didn't consider his the mr rove well it sort of implied that in describing how big he was it sort of implied that petition was necessarily smaller i mean i would argue most people are probably smaller than detective bell tran but we have to remember also petitioner's counsel would have you think that they you had this poor kid thrown into a holding cell who you know was accused of jaywalking and now is suddenly confessing you some horrible crime he was twenty two years old he wasn't a minor and while he was small in stature he was walking around carrying a lot a loaded nine millimeter gun with hollow point bullets and killed someone who was also larger than him so i think while the size is obviously a consideration for courts to take into account one that was taken into account here and i don't think detective beltran size can cell let me say this he was brought in for murder he had not yet been charged so he had not yet been read his rights and that was the issue that was raised in the trial court which was this had started out strictly as a miranda issue my client wasn't advised of his rights you should have read him his rights want any should have been given counsel and the counsel part was disposed of easily because he had not yet been charged and child counsel agreed to that so then the focus was you never read my client his rights and so that was really the focus throughout the trial court so he had not yet been read his rights there's a couple things i would like to go i have this right doesn't he after after this jailhouse confession  interview and he adopts this plan that's given to him or that is discussed with detective beltran where he says yes i was at the scene of this fight but i didn't have anything to do with the shooting in clearing up some of the statements  made petitioner did not say that he was quote scared and intimidated and that's why he made the statement he says i was a little scared i was a little intimidated but i thought these guys were there to help me he later says when confronted with some also the detectives did not pounce upon petitioner as petitioner would have you believe and in fact these statements that are now being challenged don't occur until page nine of the transcript clearly the court has read the transcript and it's clear the the transcript was complete enough the court of appeal considered this on the transcript the district court considered on the transcript and the transcript is very clear this isn't a situation but you know you know from your experience that things can look on a transcript one way and when you actually hear the tone the sort of you know that intent the other is sort of intangible things that come with human interaction that can be very different when you actually hear it on tape and so i guess that's true one of the petitioner took the stand and never testified that any of these things happened he had an opportunity when he was on the stand to say i know that it says this because the jury had already heard the transcript i'm actually not trying to criticize in terms of our ability to decide the case i agree with you the transcript itself or i'm just more saying in terms of preparing adequately for oral argument it just seems like i would have listened to the tape at least done that right it's sure you're out of the court of the there is no indication the court of appeal looked out and there's no indication the district court looked at it they looked at the transcript and the transcript is sufficient in order to make an argument but it does seem though i mean you just reading the transcript that the undercover officers language was rather forceful would you agree with their forceful i would call it authentic he is there as this experience gangbanger and he's using the language of an experienced gang banger i think it would have been suspect if he had you know used proper english had never uttered the f word or used any of these words he's in there he's a very experienced detective in addition for training drop into these jail cells and do this with regularity he was with the sheriff's department and he's probably loaned out to different i think that's what he testified to is that he's loaned out to different agencies because he has this unconventional look he and he plays this role very well and given his upbringing he testified that he's familiar with how to speak and he's able to present himself as this experienced gang member but then it can still be force true your honor but not necessarily intimidating and not necessarily him permissible and not necessarily coercive no right and so i mean again like as i mentioned earlier we have to sort of find the line between persuasive  it's the scene at some point i don't know if it's here but at some point this type of tactic can cross the line it can it didn't in this situation but  it seems risky you know i can understand the court's reluctance about something such as this undercover operation in fact the trial court at the ruling after there was the suppression issue that the tape is brought and then there is a motion for a new trial and the trial court even said listen i can't have a problem with this this qana rubs me the wrong way but listen this is the way i have to rule and this is the state of the law and i can understand if the court has some reluctance about permitting the sort of action by the police but the state and i know we don't permit it i mean it's not a question of you know allow and it's just when it gets to us we it we have to decide whether it did cross a line  just seems rather risky it is risky and in this situation the police did not cross the line there was no course of activity and for that reason the court of appeals decision on this matter was reasonable  looking at the issue of prejudice as noted by the california court of appeal any error was harmless beyond a reasonable doubt because this confession is not even the most compelling evidence of petitioners guilt there the evidence pointed to one gun and one shooter three different eyewitnesses including a friend of petitioners well that's an excellent point that you raise or i'm going to ask you about that because you knew about that before  hour was i mean why use the statement well listen the statement is helpful the prosecutor is going to use every means that they have in order to witnesses i witnesses that placed him there right absolutely and you know in looking at the tape even defense counsel admitted there were some things in there that were helpful to his client i would venture to say perhaps defense counsel would have even introduced portions of the tape because it went to his defense his defense was that i was shooting to prevent this horrific beating that was you know happening to my friend and so his argument was that it was a justifiable homicide he was also arguing that he was quote intoxicated in the tape he about being feted and that corroborated his version of events that he didn't have the intent to kill and that he committed this homicide in a justifiable attempt to protect his friend so it did help him not hurt him in many ways two quick points i didn't have the opportunity or i didn't take the opportunity to address the harmless error analysis in my briefing because it was not considered by the district court i would say very briefly that it's clear that the tape was harmful in undermining the my client's self defense defense if the court would like to hear briefing on the harmless error analysis i would ask to be given the opportunity to do so the second point i'd like to make is that interrogation includes words or actions on the part of the police the police should know are reasonably likely to elicit an incriminating response and you focus on the perceptions of the suspect and my question is if the if the demeanor the size and the comments by judge by the undercover agent were not designed to do exactly that to elicit incriminating why did the police have to use someone like mr beltran they could have put another gangbanger in there that wasn't some great big huge hundred twenty five pound six foot two older guy i think that the whole use of someone like beltran and then was to intimidate and get the subjects to confess and i think that's what happened in this case