[00:00:00] Speaker 03:
May it please the court, Your Honor.

[00:00:02] Speaker 04:
Could you give me one minute?

[00:00:03] Speaker 04:
I'm one step behind here.

[00:00:09] Speaker 04:
Sorry.

[00:00:14] Speaker 04:
I think we're ready.

[00:00:15] Speaker 03:
Thank you, Your Honor.

[00:00:16] Speaker 03:
Benjamin Ramos on behalf of Appellant Prentice Marshall.

[00:00:20] Speaker 03:
May it please the court.

[00:00:22] Speaker 03:
The certified issue before the court is whether Mr. Marshall's statements to detectives were voluntary under the totality of the circumstances.

[00:00:31] Speaker 03:
And I wanted to focus on three factual areas that weren't discussed thoroughly in the briefs to support our argument, our contention that his- Council, could you maybe move the mic a little closer?

[00:00:44] Speaker 01:
Sure.

[00:00:44] Speaker 01:
Thank you.

[00:00:46] Speaker 03:
So I'd like to address three factual areas that we contend

[00:00:51] Speaker 03:
to demonstrate that Mr. Marshall's confession was not voluntary.

[00:00:57] Speaker 03:
The first area is the timing of the Miranda warnings in this case.

[00:01:03] Speaker 03:
It's not clear in the briefs.

[00:01:05] Speaker 03:
It sort of reads like the detectives showed up at the second hospital.

[00:01:10] Speaker 03:
They had a brief conversation with Mr. Marshall.

[00:01:12] Speaker 03:
And then they told him, anything you say is voluntary.

[00:01:15] Speaker 03:
And then they gave him Miranda warnings.

[00:01:17] Speaker 03:
But that's the absolute wrong impression because the excerpts of record show at 4ER 417 through 418 that those two admonitions, you don't have to talk to us.

[00:01:29] Speaker 03:
And Miranda came at page 9 of the transcript.

[00:01:33] Speaker 03:
And it's easy to overlook that because it's page one and then it goes to page nine.

[00:01:37] Speaker 03:
So eight pages of that transcript are just missing and it's really easy to overlook that, which unfortunately I did in briefing the issue.

[00:01:44] Speaker 04:
Can I ask you, we've been over this carefully.

[00:01:46] Speaker 04:
We take this case certainly very, very seriously.

[00:01:49] Speaker 04:
But I think there are some gaps and you just mentioned missing transcripts.

[00:01:54] Speaker 04:
So my first question is I don't see the audio anywhere.

[00:01:59] Speaker 04:
Is that right?

[00:02:00] Speaker 04:
The district court didn't have the audio?

[00:02:02] Speaker 03:
As far as I know, Your Honor, that's correct.

[00:02:04] Speaker 04:
The reason I ask that, for the benefit of both lawyers, is that there are several places in the transcript where it says unintelligible or inaudible, one or the other.

[00:02:12] Speaker 04:
So I wondered if he actually heard it.

[00:02:14] Speaker 04:
And then the second is what you're going to know.

[00:02:16] Speaker 04:
We do not have that entire transcript.

[00:02:20] Speaker 04:
When I say that entire transcript, we don't have anything from the first hospital.

[00:02:24] Speaker 04:
And then at the second hospital, we have the first portion of the detectives talking to him.

[00:02:29] Speaker 04:
And as you said, it takes several pages to get to the point.

[00:02:32] Speaker 04:
Several pages of we're here to help you kind of types of comments before we get to that admonition.

[00:02:40] Speaker 04:
So what did the district court have?

[00:02:43] Speaker 03:
I think that's my understanding as well.

[00:02:52] Speaker 03:
I think that's the panel's understanding.

[00:02:59] Speaker 04:
So go right ahead.

[00:03:01] Speaker 04:
Thank you.

[00:03:02] Speaker 03:
So that that's a very important fact that.

[00:03:09] Speaker 03:
The Miranda warnings came, I don't know how long it takes to acquire eight pages or nine pages of transcript, but maybe.

[00:03:16] Speaker 01:
Is there anything in the record which suggests that the Nevada courts somehow thought that page nine came immediately after page one?

[00:03:30] Speaker 03:
I wouldn't, I don't think that that's specifically on.

[00:03:33] Speaker 03:
I don't think there's anything in the record to indicate that specifically, but I think the way the Nevada court characterized those facts, one could get the impression that the Nevada State Court believed that the Miranda warnings and the other admonition came shortly after the detectives first met Mr. Marshall.

[00:03:51] Speaker 01:
What are you specifically pointing to in that regard as an unreasonable determination of the facts by any Nevada court?

[00:04:00] Speaker 03:
Well, there was no discussion of timing, which is very important because the longer a suspect speaks with police without Miranda warnings, the more likely it is that there may be coercion or statements.

[00:04:16] Speaker 01:
Well, there's no requirement that the state court discuss everything.

[00:04:22] Speaker 01:
Is there anything that you can point to where they got it wrong on this issue?

[00:04:29] Speaker 03:
I believe the short answer is yes.

[00:04:31] Speaker 03:
I would have to review the wording.

[00:04:33] Speaker 03:
It's in the wording of their discussion of that issue where they mentioned that detectives arrived at the hospital.

[00:04:42] Speaker 03:
And then they quote the detectives as saying, we're just here to help you out.

[00:04:48] Speaker 03:
And then they mentioned that

[00:04:52] Speaker 03:
anything you say is voluntary, and then they issued Miranda warnings.

[00:04:55] Speaker 03:
And I'm paraphrasing that, but the construction, if anyone read that, it sounds like you'd think that the Miranda warnings came shortly after they arrived, and it would be completely misleading, because there was nine pages of transcript that occurred between.

[00:05:10] Speaker 04:
Well, there's eight pages of transcript, right?

[00:05:12] Speaker 04:
And I looked to follow up on this point.

[00:05:17] Speaker 04:
I looked for the audio.

[00:05:19] Speaker 04:
More precisely, my clerk looked for the audio.

[00:05:21] Speaker 04:
We can't find the audio.

[00:05:22] Speaker 04:
I can't see that there's a discrepancy between what the trial court had and what we have.

[00:05:27] Speaker 04:
But I also look to see, sometimes transcripts are date timed, time stamped is what I should say, either the transcript or the audio, so that we perhaps could look to see not only how many pages went by, but how many minutes went by.

[00:05:41] Speaker 04:
I don't think we have that.

[00:05:43] Speaker 03:
I don't believe we have that either, although the next best thing we have is Detective Saranowicz's estimate where he says it was about 15 minutes of interaction with Mr. Marshall before the Miranda warnings were first given.

[00:05:59] Speaker 03:
And then he adds to that statement, we earlier told him that everything you say is voluntary.

[00:06:04] Speaker 03:
So he doesn't say how much earlier.

[00:06:07] Speaker 03:
He doesn't say right when we showed up, we told him that, or five minutes later, he just says earlier.

[00:06:12] Speaker 03:
But so I think 15 minutes is a fair estimate because in the transcript that we do have the Miranda warnings do follow I think about two or three paragraphs after he says anything you say is voluntary.

[00:06:25] Speaker 04:
Okay so just looking again at the clock and I want to make sure you get all the time you you need here.

[00:06:31] Speaker 04:
The question is whether his will was overborn and that's what we're looking at that's what that was the question certified and so one

[00:06:40] Speaker 04:
consideration you want us to take into account is that you think it took 15 minutes.

[00:06:43] Speaker 04:
That might be right.

[00:06:45] Speaker 04:
One is that it's five in the morning and he'd been, I think, up all night.

[00:06:48] Speaker 04:
We don't really know that, but it appears that he may not have slept.

[00:06:54] Speaker 04:
There's the morphine.

[00:06:56] Speaker 04:
It seems it's a half dose of morphine, whatever that is.

[00:06:58] Speaker 04:
But the nurse told the detectives that he was lucid and sitting up.

[00:07:03] Speaker 04:
I don't see any other indication to the contrary.

[00:07:08] Speaker 04:
What other circumstances do you want us to focus on, please?

[00:07:12] Speaker 03:
Well, two points.

[00:07:14] Speaker 03:
Mr. Marshall's medical records show at 430, he was still in pain.

[00:07:18] Speaker 03:
He said his pain was a five on a scale of one to 10 at 430 in the morning.

[00:07:23] Speaker 03:
And then at 530, another entry shows that he was given a dose of morphine.

[00:07:27] Speaker 03:
His pain was still between a three and a five.

[00:07:29] Speaker 03:
So he was in pain.

[00:07:31] Speaker 03:
It's hard to say, well, how bad is that three to five?

[00:07:34] Speaker 03:
He was uncomfortable.

[00:07:35] Speaker 03:
So I think that's important to consider.

[00:07:37] Speaker 03:
But the other thing that wasn't mentioned anywhere is

[00:07:40] Speaker 03:
The detectives repeatedly told Mr. Marshall, this is your one chance to be honest with us.

[00:07:45] Speaker 03:
They told him that four times.

[00:07:47] Speaker 03:
Your one chance.

[00:07:47] Speaker 03:
That was not true.

[00:07:49] Speaker 03:
And immediately after he, that was coercive because it was intended to make him believe if I don't tell my version of what happened now, I'll never get the chance.

[00:08:00] Speaker 03:
I can't do it a week.

[00:08:01] Speaker 03:
And that's just not true.

[00:08:02] Speaker 03:
So that was.

[00:08:03] Speaker 04:
It's also not unconstitutional.

[00:08:04] Speaker 04:
Going to what we've said in other cases, police are permitted to do.

[00:08:09] Speaker 04:
Correct.

[00:08:10] Speaker 04:
And there's a fact that I've thought about sort of both ways.

[00:08:14] Speaker 04:
I'm sure you have as well.

[00:08:15] Speaker 04:
It looks like the detectives thought he was a minor at the time.

[00:08:19] Speaker 04:
They thought he was 17.

[00:08:20] Speaker 04:
And in addition to them having that impression, it seems that he told hospital personnel that.

[00:08:28] Speaker 04:
The hospital records indicate his date of birth put him at age 17.

[00:08:32] Speaker 04:
And the trial court, I think, looked to that, or perhaps the district court did,

[00:08:39] Speaker 04:
and consider that he was all of these things.

[00:08:43] Speaker 04:
He'd been shot.

[00:08:44] Speaker 04:
He was medicated.

[00:08:45] Speaker 04:
On the other hand, he's described as being lucid.

[00:08:48] Speaker 04:
And he's also fabricated.

[00:08:49] Speaker 04:
That was the court's word, I think.

[00:08:53] Speaker 04:
Fabricated a story about having been shot himself, as you know, and then is maybe even intentionally giving his

[00:09:02] Speaker 04:
age incorrectly so that he's viewed as a juvenile perhaps to avoid responsibility.

[00:09:07] Speaker 04:
That suggests he's doing pretty well in terms of his cognitive capacity, or at least that's the suggestion here.

[00:09:13] Speaker 04:
I want to give you a chance to respond to that.

[00:09:19] Speaker 03:
It's really difficult to speculate as to his cognitive functioning.

[00:09:25] Speaker 03:
We just have the record to deal with.

[00:09:27] Speaker 03:
What I would say is that

[00:09:30] Speaker 03:
his admission did come immediately after the course of statements about this is your only chance.

[00:09:35] Speaker 03:
And before that, he had admittedly he had told a different story.

[00:09:39] Speaker 03:
He had not told the truth.

[00:09:41] Speaker 03:
But I think that the fact that he also waived his rights without any deliberation, a lot of people might think about that and say, well, I'll call my parent or let me think about that for a minute.

[00:09:58] Speaker 03:
gave a new story.

[00:10:01] Speaker 03:
Well, but he called them back, right?

[00:10:05] Speaker 01:
Yes, that's correct.

[00:10:07] Speaker 01:
He lied to them the first time, right?

[00:10:09] Speaker 01:
That's correct.

[00:10:10] Speaker 01:
And then, I can't remember what the interval was, he told the nurse he wanted to talk to them again.

[00:10:19] Speaker 01:
That's correct.

[00:10:22] Speaker 01:
he waived his rights after he had called the officers back because he wanted to change his story from what was a lie.

[00:10:31] Speaker 03:
Well, I think that's a little bit unclear, Your Honor.

[00:10:34] Speaker 01:
Is it unclear it was a lie?

[00:10:36] Speaker 03:
No, no.

[00:10:37] Speaker 03:
It's unclear that he waived his rights at that point because they didn't advise him until after he called them back.

[00:10:41] Speaker 01:
No, no, no.

[00:10:42] Speaker 01:
But I mean, you're talking about how after he waived

[00:10:46] Speaker 01:
after he was given the Miranda warnings, he immediately decided to waive them and that somehow that indicates involuntariness?

[00:10:53] Speaker 03:
Am I understanding your... I think it helps suggest coercion, yes.

[00:10:58] Speaker 04:
I'm confusing the sequence.

[00:10:59] Speaker 04:
Do you mind if I jump in?

[00:11:01] Speaker 04:
Because I might have it wrong.

[00:11:02] Speaker 04:
My understanding is that if we're going to talk about a first conversation, I'm thinking of that as the first hospital with Officer Smith and that's a lie.

[00:11:10] Speaker 04:
He said he was a robbery victim.

[00:11:12] Speaker 04:
Then at the second hospital, is that UCMC?

[00:11:15] Speaker 03:
UMC, yes, Your Honor.

[00:11:16] Speaker 04:
UMC.

[00:11:17] Speaker 04:
The detective showed up at 5 in the morning, and that's where we see this transcript first, when they're telling him that we were here to help you out and whatnot.

[00:11:25] Speaker 04:
And in that conversation, which I'm thinking of as the second, but I think Judge Bennett is referring to as the first, doesn't matter.

[00:11:31] Speaker 04:
First with the detectives, right?

[00:11:33] Speaker 04:
Right, Your Honor.

[00:11:33] Speaker 04:
He's already told the lie to Officer Smith.

[00:11:36] Speaker 04:
In that second conversation, which is the first conversation with the detectives, in that conversation, did he not make very incriminating statements?

[00:11:46] Speaker 03:
No, that's when he lied.

[00:11:49] Speaker 03:
He lied for maybe 15 minutes.

[00:11:50] Speaker 03:
And then that's when they told him, we talked to Sal.

[00:11:53] Speaker 03:
We know everything that happened.

[00:11:55] Speaker 03:
And this is your one chance.

[00:11:58] Speaker 04:
And then he made incriminating statements.

[00:11:59] Speaker 03:
And then they left.

[00:12:00] Speaker 03:
And he called them back.

[00:12:01] Speaker 03:
And then he admitted.

[00:12:02] Speaker 04:
And he called them back.

[00:12:03] Speaker 04:
I thought he called them back to talk about the consequences of what he just said in the first conversation, which included a concession that he had shot at the individual he was trying to rob.

[00:12:16] Speaker 04:
And they mirandized him in what I'm thinking of as the third conversation.

[00:12:20] Speaker 04:
Is that not right?

[00:12:23] Speaker 03:
I would have to read it.

[00:12:24] Speaker 03:
My understanding was that he wanted to know his consequences after he finally told them his true version.

[00:12:29] Speaker 03:
That's my understanding.

[00:12:30] Speaker 04:
Well, that's true.

[00:12:31] Speaker 04:
That's true.

[00:12:31] Speaker 04:
When he called them back, it was 10 minutes after the second conversation, he called them back.

[00:12:35] Speaker 04:
And the records very clearly called back because he wanted to know what the consequences were of what he had just told them.

[00:12:40] Speaker 04:
And my understanding is that the consequences of what he just told them are quite incriminating.

[00:12:43] Speaker 04:
It's not a confession exactly, but it's

[00:12:45] Speaker 01:
Yes.

[00:12:46] Speaker 01:
I think your sequence is the way I understand it.

[00:12:49] Speaker 04:
I don't think that's what counsel was saying and I just wanted to clarify that, but it sounds like Judge Bennett and I both understand that the same way.

[00:12:56] Speaker 03:
I think that's correct.

[00:12:57] Speaker 03:
So the first statement to detectives, there's no confession, but there are, it's coercion, tell us now or you'll never get another chance, we know everything.

[00:13:06] Speaker 03:
And then he thinks about it apparently and he calls them back.

[00:13:09] Speaker 03:
And that's when they say, well, wait a second, we have to Mirandaize, you're a minor, so you can have a parent here if you want.

[00:13:16] Speaker 03:
And he immediately says, well, I just want to know what my consequences are.

[00:13:18] Speaker 03:
That's the sequence.

[00:13:20] Speaker 03:
He doesn't question

[00:13:22] Speaker 03:
Oh, well, good idea.

[00:13:23] Speaker 03:
I like to have my parents here before I talk to her.

[00:13:26] Speaker 03:
He just immediately admits and wants to know what his consequences are.

[00:13:30] Speaker 03:
To me, that shows coercion.

[00:13:32] Speaker 04:
I think the record's quite clear that the detective said that what he said in what I'm calling the third conversation mirrored what he had already told them in the second conversation.

[00:13:39] Speaker 04:
I don't think there's anything more or different after the Miranda.

[00:13:44] Speaker 03:
Well, after Miranda, I think he admits.

[00:13:46] Speaker 03:
He makes admissions.

[00:13:48] Speaker 03:
that he didn't make the first time they spoke to detectives.

[00:13:52] Speaker 01:
That's how I understand it.

[00:14:06] Speaker 01:
I think that's a good way to look at it.

[00:14:11] Speaker 01:
I think that's a good way to look at it.

[00:14:14] Speaker 01:
I think that's a good way to look at it.

[00:14:24] Speaker 01:
That interview was done, and then he told the nurse, I want to talk again, after he had essentially already confessed.

[00:14:30] Speaker 01:
And I did not see anything in the record to indicate that the Nevada Court of Appeals factual determination sequence-wise was in error.

[00:14:41] Speaker 03:
I think the confession was a little more detailed, though, the second time.

[00:14:46] Speaker 03:
Although he did admit in the first confession, I shot at the direction

[00:14:50] Speaker 03:
So he puts himself at the crime shooting a gun, which is... I think we're now saying the same thing.

[00:14:56] Speaker 04:
Yeah.

[00:14:56] Speaker 04:
But go back if you could because, of course, we don't want to take up too much of your time on that sequencing.

[00:15:00] Speaker 04:
I think we understand the sequence.

[00:15:03] Speaker 04:
Are there other factors you want us to consider to buttress your argument that his will was overborn?

[00:15:10] Speaker 03:
I would also repeat just the totality of the circumstances as argued in my brief.

[00:15:17] Speaker 03:
He went to two hospitals.

[00:15:19] Speaker 03:
He had an officer stationed outside his door for four or five hours at the second hospital.

[00:15:25] Speaker 03:
That really only can be construed as a sign of authority.

[00:15:28] Speaker 03:
He didn't receive visits from... Is there any evidence that he was aware that the officer was outside?

[00:15:35] Speaker 03:
Not from him specifically, but the officer did mention that he was, I'm sorry, that she was in and out of the room occasionally.

[00:15:42] Speaker 03:
So I would think he was probably aware.

[00:15:44] Speaker 04:
And in full uniform.

[00:15:45] Speaker 03:
Pardon me?

[00:15:45] Speaker 04:
She was in full uniform and she said she was in and out.

[00:15:47] Speaker 03:
Yes.

[00:15:48] Speaker 04:
I don't know the extent to which, and it doesn't sound like there was any further conversation with her to speak of.

[00:15:52] Speaker 04:
Correct.

[00:15:53] Speaker 02:
But he had, I mean, isn't it potentially relevant to the assessment of the significance of that fact that he had claimed to be the victim of a crime, right?

[00:16:05] Speaker 02:
For someone who was the victim of a crime, it would be quite natural that there might be an officer hanging around trying to talk to him.

[00:16:13] Speaker 03:
I'm sorry, there's no reason, even though he said somebody just shot him.

[00:16:32] Speaker 03:
There's no reason for her to stand outside his hospital room for another 3 or 4 hours.

[00:16:37] Speaker 01:
There's no reason, even though he said somebody just shot him.

[00:16:42] Speaker 03:
He had already told the police, he already told the first officer what had happened.

[00:16:48] Speaker 03:
And she had written it down.

[00:16:49] Speaker 03:
They'd spoken for 30 to 40 minutes.

[00:16:53] Speaker 03:
And there's nothing on the record to indicate that she was there to protect him.

[00:16:57] Speaker 04:
Well, she did say, actually, that she went to the second hospital because her supervisor told her to go there.

[00:17:04] Speaker 04:
And she did say that it was their policy that they would stay with a shooting victim or general practice.

[00:17:11] Speaker 04:
She wasn't there to take another statement.

[00:17:13] Speaker 04:
She'd done that.

[00:17:13] Speaker 04:
I'll give you that.

[00:17:14] Speaker 04:
But we don't have anything in the record to indicate why there was a police hold in the record entered as a 430.

[00:17:22] Speaker 04:
Doesn't seem to be the case that anyone knows where that came from.

[00:17:26] Speaker 04:
And Officer Smith said she thought he wouldn't have been free to go.

[00:17:29] Speaker 04:
He was hooked up to some kind of equipment.

[00:17:34] Speaker 04:
There's that, I think.

[00:17:41] Speaker 04:
And then both detectives said that they didn't, as I understand it, but I want to give you a chance to respond.

[00:17:46] Speaker 04:
I think both detectives said that they did not know a lawyer was trying to reach him.

[00:17:50] Speaker 04:
They did not prevent family from going in.

[00:17:52] Speaker 04:
And that they did not enter a police hold, at least not until after he had made his incriminating statements.

[00:18:04] Speaker 03:
Yes, that's all correct, Your Honor.

[00:18:05] Speaker 03:
But there's also testimony from a witness who said that,

[00:18:09] Speaker 03:
from Mr. Marshall's sister, who said she and someone else tried to visit him, and she was directed by police officers to a waiting room and was informed, you can't visit him, he's being booked into custody.

[00:18:22] Speaker 04:
That's why it's so very important, if the question is whether his will is overborn, that's the import, I think, of Judge Miller's question.

[00:18:28] Speaker 04:
Was he aware that the police officer was there standing guard?

[00:18:31] Speaker 04:
Was he aware that his family or even an attorney was trying to reach him?

[00:18:35] Speaker 04:
I can't see anything in the records, sir, that says that he was aware of those things.

[00:18:39] Speaker 03:
Well, I think they're fair inferences because his sister drove him to the hospital.

[00:18:46] Speaker 03:
So I think it would be odd that she would drive him to the hospital and then just vanish for the next day.

[00:18:50] Speaker 03:
I would think any regional person would expect to see a family member visiting them as soon as they can.

[00:18:57] Speaker 04:
Judge Miller, do you have other questions?

[00:18:58] Speaker 04:
Judge Bennett?

[00:18:59] Speaker 04:
All right.

[00:19:00] Speaker 04:
So when you come back, we'll put two minutes on the clock.

[00:19:02] Speaker 04:
You can plan accordingly.

[00:19:03] Speaker 04:
You're well over your time.

[00:19:04] Speaker 04:
But just so you know, you can plan on two more minutes.

[00:19:06] Speaker 02:
Thank you.

[00:19:07] Speaker 04:
You're welcome.

[00:19:08] Speaker 04:
We'll hear from the state, please.

[00:19:18] Speaker 00:
Good morning, Your Honors.

[00:19:19] Speaker 00:
May it please the Court?

[00:19:20] Speaker 00:
My name is Katrina Lopez, and I represent the respondents in this matter.

[00:19:25] Speaker 00:
This Court should affirm because Marshall's confession was voluntary and not the product of coercion.

[00:19:31] Speaker 00:
In Menci, a statement is voluntary if it's the product of free and rational choice.

[00:19:37] Speaker 00:
And unlike Menci, Marshall's wounds were not life-threatening.

[00:19:41] Speaker 00:
He was 18 years of age at the time of the interview.

[00:19:43] Speaker 00:
He was awake, sitting upright in his bed, and alert.

[00:19:48] Speaker 00:
He was not under the influence.

[00:19:51] Speaker 00:
And although he had half a dose of morphine in his system, the nurse explained that there were no issues with him communicating with detectives.

[00:19:58] Speaker 04:
Can I ask you about that part?

[00:20:00] Speaker 04:
I know I'm interrupting your sequence.

[00:20:02] Speaker 04:
But my question does pertain to what you just mentioned.

[00:20:05] Speaker 04:
You've heard me say that there's trouble with trying to figure out this transcript.

[00:20:08] Speaker 04:
We only have a small piece of it for some reason.

[00:20:12] Speaker 04:
We don't have the audio, so we don't have any time stamp.

[00:20:14] Speaker 04:
I don't know how long this all took.

[00:20:16] Speaker 04:
And the other thing is there's an awful lot of places where it says it reads unintelligible.

[00:20:21] Speaker 04:
you know, when whoever was trying to type it up couldn't, I think, understand what was being said.

[00:20:26] Speaker 04:
Do we have anything to explain that, whether the microphone was rustling or whether he was slurring his speech perhaps or anything else?

[00:20:35] Speaker 00:
No, Your Honor, we do not.

[00:20:36] Speaker 00:
We basically have the transcript from the motion to suppress hearing to create the sequence of when things occurred from the time of North Vista Hospital to UMC.

[00:20:47] Speaker 04:
Is there anything in the record anywhere that would allow us to know how much time passed from the time the NS detectives originally started talking with him when they said they were here to help him out and give him a chance to tell his side of the story?

[00:21:03] Speaker 04:
How long did all of that take?

[00:21:06] Speaker 00:
So from my understanding, the 50-minute interview with the detectives at UMC, so Mr. Marshall was admitted at UMC at 4.30 a.m.

[00:21:16] Speaker 00:
That's in 2ER093.

[00:21:18] Speaker 00:
Then he had a 50-minute interview with detectives, 3ER354 through 356.

[00:21:25] Speaker 00:
That interview started at 5 o'clock a.m., 3ER344.

[00:21:30] Speaker 00:
The detectives provided an introduction and then they basically stated that they were just coming out there to talk to Marshall to find out what happened.

[00:21:39] Speaker 04:
I'm just trying to figure out, my question is really specific.

[00:21:42] Speaker 04:
We just don't have for some reason the entire transcript.

[00:21:45] Speaker 04:
We don't even have the incriminating part of the transcript.

[00:21:47] Speaker 04:
I'm just trying to figure out, I think one of the detectives said it took about 15 minutes from the beginning of the interview, of the 15 minute interview, until they got to the part that we've been focusing on.

[00:21:57] Speaker 04:
Is there anything in the record that would allow us to nail that down, other than the detective's estimate?

[00:22:02] Speaker 00:
No, Your Honor.

[00:22:02] Speaker 00:
All right.

[00:22:03] Speaker 00:
Thank you.

[00:22:06] Speaker 00:
And so a statement is voluntary if it's the product of free and rational choice.

[00:22:12] Speaker 00:
And so as previously stated, Marshall was not under the influence.

[00:22:18] Speaker 00:
The detectives never prevented Marshall from speaking to friends, family, or his attorney.

[00:22:23] Speaker 00:
And also, Marshall's confession was not the product of coercion in that his will was not overborn.

[00:22:31] Speaker 00:
Coercion occurs when there is coercive police conduct, and that conduct results in the statements being made.

[00:22:38] Speaker 00:
Here, the officers never threatened, harmed, or pressured Marshall.

[00:22:41] Speaker 00:
They basically asked him to tell us what happened, which is in 1SER095.

[00:22:46] Speaker 00:
The detectives told Marshall that anything he said was voluntary, and he had the right to request the detectives to leave the hospital room at any time.

[00:22:55] Speaker 00:
That's in 2ER-267, 3ER-354, and 3ER-357-358.

[00:23:01] Speaker 04:
So we're really familiar with this record, and I appreciate that you are too.

[00:23:06] Speaker 04:
I appreciate your preparation very much.

[00:23:09] Speaker 04:
Another thing that happened that hasn't had much airtime here is that there was another statement that was taken that was suppressed because the trial court made a finding that he clearly asked for counsel in that last statement and the officers pressed on and ultimately the state lost on that argument and that statement was suppressed.

[00:23:28] Speaker 04:
So if we put that together with the missing transcripts, what should we do about that?

[00:23:32] Speaker 04:
Should we be concerned about that?

[00:23:36] Speaker 00:
Well, we should determine that the district court was correct in determining that the Nevada Appellate Court's decision was not an unreasonable determination of the facts based on- I think what he's arguing is that it may have been unreasonable.

[00:23:48] Speaker 04:
And I just want to push back and have you respond to this, right?

[00:23:51] Speaker 04:
That given that history, there was a concern that apparently it was to a constitutional level about that last statement that his constitutional rights were not honored.

[00:24:02] Speaker 04:
Or you can take that as a hypothetical if you want, however you want.

[00:24:05] Speaker 04:
I'm not trying to-

[00:24:06] Speaker 04:
Just putting that out there.

[00:24:08] Speaker 04:
And then there's this missing transcript.

[00:24:09] Speaker 04:
And you're asserting your client's view of what happens in the part of the transcript that we have.

[00:24:14] Speaker 04:
But should we draw any inferences about the reasonableness of the state court making the factual determinations that are at issue here, given that we have a big chunk of the transcript missing?

[00:24:24] Speaker 00:
No, Your Honor, because there's nothing in the record.

[00:24:26] Speaker 00:
There's nothing stating that Marshall did not want to talk to detectives while at UMC.

[00:24:33] Speaker 00:
Yes, the statements that he made at the detention center, those were suppressed.

[00:24:38] Speaker 00:
They granted the motion to suppress.

[00:24:40] Speaker 00:
But based on just the totality of the circumstances at the time that he was at the hospital speaking with the detectives, there's nothing saying that he invoked his right to counsel.

[00:24:48] Speaker 00:
There's nothing saying that he didn't want to speak to detectives.

[00:24:51] Speaker 00:
In fact, he actually volunteered information

[00:24:53] Speaker 04:
So here's the problem.

[00:24:54] Speaker 04:
We only know what we know.

[00:24:55] Speaker 04:
We don't know what's missing.

[00:24:58] Speaker 04:
So to get back to Judge Bennett's point of the very important standard of proof here, this is quite a burden.

[00:25:04] Speaker 04:
But the question is whether there's a reasonable fact finding.

[00:25:06] Speaker 04:
So when you say there's nothing in the record to show that, his will was overborn, there's a big part of the record missing.

[00:25:11] Speaker 04:
And apparently, the trial court didn't have it either.

[00:25:15] Speaker 04:
or the earlier courts that have looked at this case.

[00:25:17] Speaker 04:
And I'm just trying to get your response on whether or not that's a reasonable way to proceed, given that there's some concern, there was a lot of concern, about that last statement and about the fact that the state's really relying on the fact that he never made certain statements and we don't know what was said in the part of the transcript we don't have.

[00:25:35] Speaker 04:
What about that?

[00:25:37] Speaker 00:
we would still have to give deference to the state court findings that they reviewed the transcripts, they reviewed the statements, and they made the reasonable determination that his statements were voluntary and that they were not a product of coercion.

[00:25:52] Speaker 01:
As far as you're aware,

[00:25:53] Speaker 01:
in the state court or in the district court, was there any objection made by petitioners' counsel that somehow parts of the record were missing and that somehow prevented the Nevada courts or the district court from reasonably determining the facts one way or another because there was an incomplete record?

[00:26:15] Speaker 00:
No, Your Honor, that was not stated in the record.

[00:26:17] Speaker 04:
Do we know from the record or can you tell us whether the state court had the entire transcript?

[00:26:24] Speaker 00:
It does not state in the record if they have the entire transcript.

[00:26:28] Speaker 00:
Okay.

[00:26:28] Speaker 04:
These aren't two questions.

[00:26:29] Speaker 04:
I'm really just trying to leave no stone unturned.

[00:26:31] Speaker 04:
They're very serious consequences in this case.

[00:26:34] Speaker 04:
My other question is whether, since I think this all resulted in a plea agreement, is there any part of the plea agreement that limited the record that was to go forward on the remaining question here?

[00:26:45] Speaker 00:
I'm sorry, Your Honor, could you please ask the question again?

[00:26:48] Speaker 04:
I think I've already answered it myself.

[00:26:50] Speaker 04:
It's okay.

[00:26:51] Speaker 04:
You've told me that there's nothing in the record that's going to tell me that the state court did or did not have the entire transcript.

[00:26:56] Speaker 04:
Is that it?

[00:26:57] Speaker 00:
Yes.

[00:26:58] Speaker 00:
Yes, Your Honor.

[00:26:59] Speaker 00:
And also, when discussing Williams, the detectives never discussed the specifics of what Williams said, nor did they discuss the facts regarding the shooting.

[00:27:08] Speaker 00:
All they said was that what you're telling us is different from what Williams said, but they don't go into any evidence.

[00:27:14] Speaker 00:
They don't go into any details.

[00:27:16] Speaker 00:
And so his will was not overborn.

[00:27:19] Speaker 00:
Also, the detectives never promised Marshall any leniency in exchange for speaking to them.

[00:27:23] Speaker 00:
They just basically said that they wanted to help Marshall out.

[00:27:27] Speaker 00:
And also the interview lasted less than one hour.

[00:27:30] Speaker 00:
The interview was only 50 minutes.

[00:27:33] Speaker 00:
The officer testified at the motion to suppress hearing that Marshall was not in custody.

[00:27:38] Speaker 00:
The detectives testified that he was not in custody.

[00:27:42] Speaker 00:
And also the police hold from the interdisciplinary reports from UMC, which is 3ER433, that there was no police hold until 645, which is after the second interview.

[00:27:56] Speaker 00:
And so when you look at all of this considered together, the federal district court was correct in determining that the Nevada Appellate Court's determination was not contrary or an unreasonable application of clearly established law and that the determinations was not unreasonable based on the facts presented in the state court.

[00:28:18] Speaker 04:
Judge Miller, I don't think we have other questions.

[00:28:20] Speaker 04:
Thank you.

[00:28:33] Speaker 03:
Your Honor, she mentioned Mincy and that case really is, I think, applicable.

[00:28:41] Speaker 03:
The important difference there is that Mr. Mincy was told that he was under arrest and given Miranda warnings before the questions.

[00:28:50] Speaker 03:
That's a really important consideration.

[00:28:54] Speaker 03:
The state court also concluded in its ruling that the police never threatened or pressured Mr. Marshall, which I think is an unreasonable factual determination.

[00:29:05] Speaker 03:
As I discussed earlier, there was enormous pressure to confess now or he would never get another chance.

[00:29:12] Speaker 03:
They told him repeatedly, this is your one chance to tell us, otherwise you're going to be stuck with what your friend said.

[00:29:19] Speaker 03:
That was coercive.

[00:29:22] Speaker 03:
As to the state court record, in reviewing the voluntariness issue, the state court is not entitled to any deference.

[00:29:29] Speaker 03:
This court reviews that de novo and independently.

[00:29:32] Speaker 03:
So I don't think the court is bound.

[00:29:35] Speaker 03:
Why is that?

[00:29:37] Speaker 02:
Why do we review de novo?

[00:29:39] Speaker 02:
The the voluntariness issue is reviewed by this court de novo and and council mentioned that under 2254 D Don't we need I mean in order to grant relief the federal court needs to find the state court either unreasonably Determine the facts or unreasonably applied clearly established federal law as determined by the Supreme Court, right?

[00:30:01] Speaker 02:
Yes, that's not de novo

[00:30:05] Speaker 04:
I think you're skipping ahead.

[00:30:06] Speaker 04:
You've argued that there was an unreasonable determination of the facts, and you're flipping to de novo review.

[00:30:10] Speaker 04:
I think you just did that without articulating it.

[00:30:16] Speaker 04:
Is that what you're doing?

[00:30:16] Speaker 04:
Right, I think the voluntary... Because otherwise you're talking de novo review, and there's a big hurdle between you and de novo review.

[00:30:20] Speaker 04:
So can you just clarify?

[00:30:21] Speaker 01:
Or are you saying we review the district court de novo?

[00:30:26] Speaker 01:
Yes, Your Honor.

[00:30:27] Speaker 02:
Oh, thank you.

[00:30:29] Speaker 02:
We do not review the state court's determination, de novo.

[00:30:35] Speaker 03:
Correct.

[00:30:36] Speaker 03:
But if I understood counsel, she was saying that.

[00:30:38] Speaker 03:
Maybe she can clarify, but I think she was saying that about the gaps in the record.

[00:30:42] Speaker 03:
We'd have to give it deference.

[00:30:44] Speaker 03:
This court would have to give it deference.

[00:30:45] Speaker 04:
Yes, we give the state court's findings a fact deference.

[00:30:49] Speaker 03:
But as to the voluntariness issue, though, that is what is reviewed de novo.

[00:30:53] Speaker 03:
That's the point I was trying to make.

[00:30:55] Speaker 04:
We take your part.

[00:30:57] Speaker 04:
I think we're going to push have a different view of the applicable standard But it's one we're very familiar with so go right ahead with your comments.

[00:31:04] Speaker 03:
Thank you honor So I think under the totality of the circumstances the police questioning was coercive in this case It's undisputed that many lies were told and the police are allowed to lie to suspects They're allowed to trick them

[00:31:17] Speaker 03:
But there's a point when it crosses the line, and it has to be determined on a case-by-case basis.

[00:31:22] Speaker 03:
And under all the facts of this case, I think that line was crossed.

[00:31:27] Speaker 03:
Mr. Marshall was vulnerable.

[00:31:28] Speaker 03:
As in Mincy, there are very strong parallels.

[00:31:32] Speaker 03:
He was basically at the mercy of the police, which is the language that Mincy used.

[00:31:37] Speaker 03:
Mr. Mincy was at the mercy of Detective Hurst, or Hust, who was relentless in his questioning.

[00:31:43] Speaker 03:
Now the facts are not identical, but they are very similar in that Mr. Marshall was confined to a hospital bed, connected to tubes and wires, he couldn't just leave, his clothing had been removed, his shoes were gone.

[00:31:56] Speaker 03:
There was a police officer stationed outside his door.

[00:31:59] Speaker 03:
We don't know what he thought about that, but unreasonable inferences is that the officer was there to make sure he didn't leave, although how he could have possibly thought he could leave under those conditions makes no sense to me.

[00:32:11] Speaker 03:
But an officer was there making sure it didn't happen anyway.

[00:32:15] Speaker 03:
And with all the threats about using Sal's story and being stuck with it, if he didn't confess now, I think that crosses the line and was coercive.

[00:32:24] Speaker 03:
So this court should find the statement to be involuntary.

[00:32:27] Speaker 03:
Thank you.

[00:32:28] Speaker 04:
Thank you for your argument.

[00:32:29] Speaker 04:
Were you going to ask another question?

[00:32:31] Speaker 04:
I think we're done.

[00:32:32] Speaker 04:
All right.

[00:32:33] Speaker 04:
Thank you for your argument.

[00:32:33] Speaker 04:
Thank you both for your advocacy.

[00:32:35] Speaker 04:
We'll take that matter under advisement and go into the final case on the calendar, please.