dissenting:

Miranda v. Arizona, 384 U.S. 436, 542-43 , 86 S.Ct. 1602, 1663 , 16 L.Ed.2d 694 (1966) (White, J., dissenting).

Today, these poignant and prophetic words lose their abstract quality as the prison doors that closed behind Ricardo H. Robinson in 1982 are unlocked. But my quarrel here is not with Miranda itself; it is with the manner in which Miranda and its progeny are applied by my respected colleagues to the facts and legal circumstances of this case. In that connection, this case as I see it is mostly about the prophylactic rules and remedies designed by the judiciary “to promote sensitivity to constitutional values through [their] deterrent effect.” 1 Duckworth v. Eagan, — U.S. -, 109 S.Ct. 2875, 2882 , 106 L.Ed.2d 166 (1989). (O’Connor, J., concurring). Thus, it is appropriate in my view for the judiciary to be mindful of Justice White’s concerns and to monitor carefully the costs of these rules as they are applied to the cases that come before us. Lest we lose sight of these costs, I begin with a description of Robinson’s unspeakable conduct, for which a California jury found him guilty of murder with the special circumstances of torture and murder for financial gain, mayhem, assault with a caustic substance, and conspiracy to commit the above.

In 1980, Robinson’s codefendant Gilman (a law school graduate) fell out with his fiancee, Patricia Worrell (a law student). Later that year, Gilman decided on revenge. He located a “hit man,” Bobby Savage, through a prostitute in Las Vegas. Savage, a pimp and a bounty hunter for a bail-bondsman, was paid $750 to “beat up” Ms. Worrell. Savage stalked Ms. Worrell in Los Angeles, but eventually returned to Las Vegas without earning his fee. Shortly thereafter, Savage telephoned Gilman and put Robinson (a drug dealer) on the line. “Robinson demanded an extra $1,000 for the job. Gilman eventually agreed to the increase in money and told Robinson he wanted them to throw lye or acid on Ms. Worrell. Gilman also told Savage and Robinson to rough Gilman up too, to make it ‘look good.’ ” People v. Gilman and Robinson, 156 Cal.App.3d 760, 763 , 203 Cal. Rptr. 6 (1984).

On August 14, 1980, Robinson and Savage knocked on Ms. Worrell’s door. When *1395 she responded, Savage threw lye in her face. Gilman, who was in the house at the time, drove a crying and screaming Ms. Worrell — and her son — to the hospital.

“Ms. Worrell’s upper body and face were severely disfigured by the lye. She was blinded in her left eye. Some of the lye entered her mouth, burned through her esophagus and eventually burned through a [major] artery. This eventually caused a massive hemorrhage that caused her death on August 24, 1980.” Id. at 764 , 203 Cal. Rptr. 6 .

Robinson was arrested for these crimes, and he confessed to his role in assaulting and killing Ms. Worrell.

I

My analysis of the Miranda issues in this case begins with the pre-interrogation advisement of rights Detective True administered to Robinson. The advisement was thorough, and its thoroughness reveals that the two detectives scrupulously respected the instructions of the Supreme Court. Detective True and his partner Officer Guarino focused directly on Robinson’s right to have “an attorney present during our questioning right now” and did not leave the subject until it was clear to them that Robinson understood and chose to answer questions voluntarily.

The exact colloquy was as follows:

Transcript of Interrogation of Petitioner-Appellant Ricardo H. Robinson (emphasis added).

The Supreme Court’s purpose in Miranda was to affect police conduct during interrogations and to promote sensitivity to constitutional values. This case, along with thousands of others, provides proof it has succeeded. Moreover, the police here, by tape recording this interview, willingly exposed their behavior to close scrutiny. This is inconsistent with conduct designed to subvert Robinson’s rights. Neither does it show an intent to engage in coercive or improper behavior. The discourse is all there, on tape and in print, to listen to, to study, and to dissect.

*1396 II

Robinson’s attorney claims Robinson’s waiver was defective because the Miranda colloquy indicates that Robinson believed he was responsible for obtaining an attorney himself, whether he could afford it or not. Robinson has never so testified, and I am not persuaded that this strained attempt to read meaning into the exchange has merit. True told Robinson he could have an attorney "without charge before questioning,” and Robinson’s answer was clear: “I’ll speak now and I’ll answer questions without an attorney.” Under the “totality of the circumstances surrounding the interrogation” test, see Moran v. Burbine, 475 U.S. 412, 421 , 106 S.Ct. 1135, 1140-41 , 89 L.Ed.2d 410 (1986), I find a clear waiver.

III

The finding of an express waiver sheds considerable light not only on Robinson’s original decision to talk, but also on (1) the meaning of Robinson’s references to an attorney in the questioning that followed, references on which the majority opinion focuses in reversing the district court, and (2) what the police should have done when confronted with the references. The majority opinion finds these references to constitute an unequivocal invocation of the present right of counsel, requiring all questioning to cease at the moment the “invocation” occurred. I respectfully disagree with this analysis.

As I read the record, Robinson alluded to counsel on several occasions during questioning, but he never expressed either (1) a clear change of heart vis-a-vis his earlier waiver, or (2) a decision to stop talking with the police until he got an attorney or, for that matter, to stop talking period. The statements “I have to get me a good lawyer man. Can I make a phone call?” may mean exactly that, but in context they require interpretation; this is the essence of ambiguity. Had these statements been made during the initial advisement, their meaning would no doubt have been different and — because of context and juxtaposition — might have constituted an unequivocal request for an attorney. These statements, however, were made in the midst of a continuing conversation 'preceded by a waiver and an express willingness to talk. I see them as calling for interpretation or clarification.

When the person being questioned has already expressly declined to secure the services of an attorney and is talking freely to the police, the logical response would be to follow-up on such statements with clarifying questions, such as, “Does that mean you don’t want to talk to us anymore until you get an attorney?” 2 Ordinary people, including ordinary police officers, see Connecticut v. Barrett, 479 U.S. 523, 529 , 107 S.Ct. 828, 832 , 93 L.Ed.2d 920 (1987), would understand Robinson’s words not as a clear invocation of a present right to an attorney, but as an ambiguous reference to an attorney that required clarification. What Robinson said does not necessarily mean he had changed his mind about talking to the police.

But another crucial aspect of Robinson’s compound statement about an attorney and a phone call weighs heavily on what he meant, and whether it was ambiguous. Immediately following the statement, the police asked questions about who he wanted to call. His ultimate answer? “I want to call Mom; that’s my mother.” The exchange was as follows:

Transcript of Interrogation of Petitioner-Appellant Richard H. Robinson (emphasis added).

Even though the police used a name and a relationship — “Mr. Monday” and “your uncle” — in asking Robinson who he wanted to call, their questions were no different than saying, “sure you can make a phone call, who do you want to call?” The police did not drop the subject brought up by Robinson. The transcript reveals that Officer Ferrand kept it alive, and he was within constitutional bounds in so doing. Under such circumstances, the law permits the police to ask questions devised to clarify the request 3 as well as to respond naturally to the request in a manner reasonably calculated to enable the request to be effectuated. Such questions hardly amount to interrogation, much less interrogation designed to produce incriminating evidence. See Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980). The police are not required by the Constitution when a suspect asks to make a phone call— even to an attorney — to clam up and escort the suspect to his cell without uttering another syllable. The only activity guarded against is further interrogation. Robinson's answer to Ferrand’s inquiry — “my mother, man” — renders the complete exchange clearly ambiguous as to whether he was requesting the presence of an attorney. The judgment we are required to make on this issue cannot be an informed one unless we look at the entire exchange. Contrary to the majority’s claim, Smith v. Illinois, 469 U.S. 91 , 105 S.Ct. 490 , 83 L.Ed.2d 488 (1984) does not prohibit this approach. Smith was concerned with an accused’s “post request responses to further interrogation.” 469 U.S. at 100 , 105 S.Ct. at 495 (emphasis added). Officer Fer-rand’s question, “[y]ou want to call your uncle?”, was not “further interrogation”— it was merely a natural response to Robinson’s request to make a phone call. As such, it was not a “post request response to interrogation” but an integral part of the exchange on the subject of the phone call. Thus, Ferrand’s question and Robinson’s answer may be looked at in deciding whether what he said was equivocal. And, in fact, the proof of the pudding was in the eating: The phone call he made — within minutes of the request and with the assistance of the police — was to his mother in Pennsylvania. After his discussion with her, he continued to talk willingly to the police, without making any references to an attorney.

The majority opinion comes to a screeching halt in its analysis with the word “lawyer,” an incomplete approach that skews the inquiry, slights the law, and produces *1398 an incorrect result. Bruni v. Lewis, 847 F.2d 561 (9th Cir.1988), teaches us that the word “attorney” has no talismanic qualities; the mere use of it by a suspect such as Robinson does not abruptly bring the curtain down on all further questioning. See also United States v. Jardina, 747 F.2d 945, 949 (5th Cir.), cert. denied, 470 U.S. 1058 , 105 S.Ct. 1773 , 84 L.Ed.2d 833 (1985). Bruni also held, Edwards notwithstanding, “a defendant may selectively waive his Miranda rights, deciding to respond to some questions but not to others.” 847 F.2d at 564 . 4 This reasoning is consistent with Connecticut v. Barrett, which permits police to question a suspect who says he will not make a written statement without a lawyer but will answer questions orally for the police. As the use of the word attorney did not bar further questioning in Barrett and Bruni , so it should not here either. Certainly it should not prohibit Officer Ferrand from asking Robinson if he wants to call his uncle. Thus, unlike my respected colleagues, I see Robinson’s references to an attorney during the questioning as equivocal. 5

IV

This conclusion takes me down a different analytical road than the majority has taken. The next issue I must address is the effect of an equivocal request for counsel and the response required of interrogating police officers.

The leading case in this circuit on the subject of midquestioning equivocal references to an attorney is United States v. Fouche, 776 F.2d 1398 (9th Cir.1985) (“Fouche I ”). 6 Fouche I held that “where a suspect makes an equivocal assertion of [the right to] counsel, the police must cease all questioning, except that they may attempt to clarify the suspect’s desire for counsel.” 776 F.2d at 1404 (emphasis added). Prior to Fouche I, Edwards v. Arizona, 451 U.S. 477 , 101 .S.Ct. 1880, 68 L.Ed.2d 378 (1981), required police conducting a properly Mirandized interrogation to cease questioning when confronted by an unequivocal invocation of rights. It was not until Fouche 1 , however, that this circuit, following the Fifth Circuit in United States v. Cherry, 733 F.2d 1124, 1130-31 (5th Cir.1984), advised law enforcement of the proper procedure when confronted with post-waiver equivocation. Had Robinson’s interrogation occurred after 1985, Fouche I would have controlled, but it did not. Thus, the question is whether Fouche I applies retroactively to Robinson. Based on the well-reasoned recommendation of the magistrate, the district court ruled that Fouche I did not apply retroactively.

Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), states the test for retroactivity. In Teague , the Supreme Court held that “new rules” are not to be applied retroactively in collateral habeas corpus proceedings unless they decriminalize conduct or are necessary to ensure an accurate verdict — two exceptions that are not relevant to this case. How has the court defined a “new rule”? It has defined it as a holding that breaks new ground or imposes a new obligation on the states or the federal government. Id.; see also, Penry v. Lynaugh, 492 U.S. -, 109 S.Ct. 2934 , 106 L.Ed.2d 256 (1989).

This test was refined in Butler v. McKellar, — U.S. -, 110 S.Ct. 1212 , 108 L.Ed.2d 347 (1990), where the court, holding that Arizona v. Roberson, 486 U.S. 675 , 108 S.Ct. 2093 , 100 L.Ed.2d 704 (1988), announced a “new rule,” remarked that a decision announces a new rule “ ‘if the result was not dictated by precedent exist *1399 ing at the time the defendant’s conviction became final.’ ” Id. at 1216 (emphasis in original) (citation omitted).

The court went on to point out:

110 S.Ct. at 1217 (citation omitted).

I see Fouche I as creating a “new rule,” and I do so for four reasons. First, the Supreme Court made it clear in Michigan v. Tucker, 417 U.S. 433 , 94 S.Ct. 2357 , 41 L.Ed.2d 182 (1974), that the Miranda rules are not “themselves rights protected by the Constitution but [are] instead measures to insure that the right against compulsory self-incrimination [is] protected....” Id. at 444 , 94 S.Ct. at 2364 . Tucker also teaches that if the procedure or treatment complained of, measured by the historical circumstances underlying the privilege against compulsory self-incrimination, did not deprive a petitioner of a constitutional right, then we are dealing with “only the prophylactic rules developed to protect that right.” Id. at 439 , 94 S.Ct. at 2361 (emphasis added). An examination of the record in the instant case demonstrates that what we face is not compulsory self-incrimination, but an alleged violation of the rules of engagement established by Miranda and its progeny. This is not to relegate the rules to insignificance, but the distinction between rights themselves, on the one hand, and “suggested safeguards ... not intended to ‘create a constitutional straightjacket,’ ” on the other, id. at 444 , 94 S.Ct. at 2364 (citation omitted), is one of considerable substance.

Constitutional rights are constant; prophylactic rules by comparison are less permanent and reflect the federal judiciary’s judgment of what is necessary to protect those rights. Of course, these rules are important and must be respected, 7 but they are nonetheless transient rules as compared to constitutional rights. 8 Tucker demonstrates this difference. When the Tucker court concluded it was not facing an abridgement of a constitutional principle, it applied the Miranda rules less stringently.

Second, I see the Fouche I rule as “new” in this context because, when it was articulated in 1985, it addressed an area of Miranda for which this circuit had issued no definitive prescription. We noted in Fouche I that the Supreme Court has “not addressed what constitutes a valid assertion of the right to counsel,” 776 F.2d at 1404 , commenting that Edwards addresses only “a right to counsel that has been *1400 ‘specifically invoked.’ ” Id. Judge Tang also stated in Fouche I: “No Ninth Circuit cases provide guidance.” Id. Indeed, in 1984 the Supreme Court explicitly declined to articulate a standard for determining whether equivocal statements constitute invocation of the right to counsel: “We do not decide the circumstances in which an accused’s request for counsel may be characterized as ambiguous or equivocal as a result of events preceding the request or of nuances inherent in the request itself, nor do we decide the consequences of such ambiguity or equivocation.” 469 U.S. at 99-100 , 105 S.Ct. at 494-95. The court noted that “courts have developed conflicting standards for determining the consequences of such ambiguities.” Id. at 96, 105 S.Ct. at 493. 9

Third, I do not believe the rule established in Fouche I was "dictated” by precedent. It is not impossible to conceive of a different ruling on this issue, one that focuses on the deterrent purpose of the exclusionary rule and the recognized need for the questioning of suspects with respect to serious crimes. See Schneckloth v. Bustamonte, 412 U.S. 218, 225 , 93 S.Ct. 2041, 2046-47 , 36 L.Ed.2d 854 (1973). A plausible different rule, such as the rule recently announced by the Virginia Supreme Court in Eaton v. Commonwealth, — Va. —, 397 S.E.2d 385 (Va.1990), is that once a suspect has been advised of his rights and waives them, questioning that does not run afoul of the Constitutional prohibition against self-incrimination may continue until the suspect clearly changes his mind and clearly revokes the waiver of his present right to counsel. In Eaton , the Virginia Supreme Court had before it a defendant who, while in custody for multiple homicides, was advised of and waived his Miranda rights, and then began to discuss the case with his interrogators. When the interrogation turned to the shooting of a state trooper, the suspect responded by asking, “You did say I could have an attorney if I wanted one”? The police answered his question in the affirmative and told him he did not have to tell them anything. The suspect fell silent. After a brief time, and without any attempt to clarify his thinking on the subject of an attorney, the interrogation resumed, and the suspect made incriminating statements that were used to convict him. In discussing whether the rule of Edwards v. Arizona was triggered under these circumstances, the Virginia Supreme Court rendered the following analysis:

From the foregoing, I conclude that the rule established in Fouche I was a logical extension of Edwards and its progeny, but I do not think it was “dictated” by it.

Fourth and finally, if the judiciary takes it upon itself to guide the police with rules, as it has, it must do so fairly. When we penalize the police, and thereby society, we should do so only for not following the published rules, not for failing to anticipate what the next rule will be. To apply rules retroactively is to punish the police for failure to follow somebody who is not yet leading. This serves no deterrent purpose. It is a counterproductive practice that should be avoided as it breeds public disrespect for both the courts and the Constitution. The public understands that consequences attach when rules are broken, but the public’s sense of fair play is offended by changing the rules after the game is over. This process differs materially from the process of interpreting the Constitution and applying its mandates to a given situation. In such an exercise, the rule is not being created; it already exists in the Constitution itself and is simply being impressed upon the circumstances of the case.

In sum, I conclude that Fouche I and its new rule cannot be applied to Robinson’s interrogation, which occurred five years earlier.

Robinson’s counsel argues that Solem v. Stumes, 465 U.S. 638 , 104 S.Ct. 1338 , 79 L.Ed.2d 579 (1984), and not Teague v. Lane should control the issue of whether Fouche I should be applied retroactively. I disagree. Even if Stumes were controlling, however, I do not believe the Fouche I rule would be imposed retroactively. In Stumes , the Supreme Court held that the Edwards rule — once a suspect has “clearly invoked” his right to counsel, only the suspect may initiate subsequent conversation — did not apply retroactively, and it so held for four reasons. First, the Edwards rule does not significantly promote the court’s truth-finding function, but rather is a prophylactic rule. 465 U.S. at 645 , 104 S.Ct. at 1342-43. Second, although Edwards did not overrule a prior decision or transform standard practice, it established a new per se rule that was not a necessary consequence of Miranda .

465 U.S. at 647-48 , 104 S.Ct. at 1344. Third, judicial guidance was lacking; the courts were in conflict on the issue. Fourth, retroactive application might affect numerous convictions, thereby disrupting the administration of justice.

The reasons given by the Court in Stumes are applicable to the present case: (1) This is a prophylactic rule that does not promote truth-finding; (2) the police cannot be faulted for failure to anticipate Fouche I; (3) judicial guidance — as pointed out earlier — was lacking; and (4) retroactive application might affect numerous convictions. Thus, under either Stumes or Teague , the result would be the same. Fouche I cannot govern Robinson’s interrogation. Accordingly, the police failure to follow up on ambiguous references to an attorney did not violate the Miranda rules in place at the time, and is not a basis for granting Robinson’s petition for a writ of habeas corpus. 10 To alter slightly a thought from Justice Cardozo, the constable did not blunder, thus the criminal should not go free. 11

V

California suggests we should refuse to hear Robinson’s Miranda complaints on the ground that the rationale of Stone v. Powell, 428 U.S. 465 , 96 S.Ct. 3037 , 49 L.Ed.2d 1067 (1976), should foreclose collateral review of these issues. Although we rejected this argument in Hinman v. McCarthy, 676 F.2d 343, 349 (9th Cir.), cert. denied, 459 U.S. 1048 , 103 S.Ct. 468 , 74 L.Ed.2d 617 (1982), Justice O’Connor in a concurring opinion in Duckworth v. Eagan, — U.S. -, 109 S.Ct. 2875 , 106 L.Ed.2d 166 (1989) (O’Connor, J., concurring), makes a persuasive case that this issue should be revisited.

I quote Justice O’Connor:

— U.S. at -, 109 S.Ct. at 2882-83.

In the instant case, the courts of California afforded Mr. Robinson a full and fair opportunity to litigate his Miranda claims. The record shows that the state trial court conducted a full evidentiary hearing on Robinson’s motion to suppress. The superior court judge listened to the tape recording of the interrogation, reviewed the transcript, took live testimony, and heard argument. Robinson then appealed to the California Court of Appeal, which ruled that the trial court’s denial of the motion to suppress was amply supported by the record. 12 The California Supreme Court denied Robinson’s petition for a hearing, which failed to mention any Miranda issue. Two subsequent petitions for writs of habe-as corpus, which did raise the issues now before this court, were also denied.

To apply the reasoning of Justice O’Con-nor’s concurring opinion, numerous state and federal judges have considered Robinson’s claims. No one has raised any doubt as to his guilt, the voluntariness of his incriminating statements, or their substantive value. It will accomplish nothing to discipline now behavior that occurred in 1980 on the basis of a case decided in 1985. “[I]t is absurd to think that this added possibility of exclusion [of the evidence] years after the police conduct at issue will have any appreciable effect on police training or behavior.” Id. at 2884. Fouche I is firmly in place. It has been controlling the activities of police for five years. It will do nothing to confirm the status quo or to promote progress to apply it to this case.

Accordingly, I would affirm the district court.

. The majority points out that their opinion does not "foreclose the possibility of a new trial.” Majority opinion at 1394. This may come as little solace to Patricia Worrell’s family, to those responsible for reassembling for retrial the components of a stale case now ten years old, to those who relied on the admissibility of Robinson’s confession in structuring the evidence-gathering aspect of the investigation of this case, and to those who believe that a system of “justice" must strive to bring litigation to an appropriate conclusion in less than a decade.

. For this case, the most appropriate example of "clarifying questions" is found in True’s advisement of Robinson quoted earlier. Why a procedure that is commendable at the beginning of questioning becomes something we condemn if it is appropriate later escapes me.

. See United States v. Fouche, 776 F.2d 1398, 1405 (9th Cir.1985); United States v. Nordling, 804 F.2d 1466, 1470 (9th Cir.1986); Smith v. Endell, 860 F.2d 1528, 1529 (9th Cir.1988).

. Bruni responded to a Mirandized request that he answer questions by saying "not without my attorney.” He then added, "well, ask your questions and I will answer those I see fit.” Id.

. This conclusion is bolstered by the state court’s factual findings. See 28 U.S.C. § 2254 (d). The trial judge hearing the matter found the following: "[T]here was an alluding to an attorney on a couple of occasions ... but again, basing my feelings on the totality of circumstances prior to and subsequent to, there was never really an asking by Mr. Robinson for an attorney.” Report and Recommendation of United States Magistrate Charles F. Eick, filed July 19, 1988.

.Fouche I came before this court for a second time on appeal. United States v. Fouche, 833 F.2d 1284 (9th Cir.1987) (“Fouche II").

. See Collazo v. Estelle, 884 F.2d 1168 , 1171 en banc reh'g granted, 898 F.2d 87 (9th Cir.1989) (Trott, J., dissenting) ("As long as [Miranda ] is the law of the land, it must be respected.”).

. This is exemplified by the comments of Justice Blackmun in his concurring opinion in United States v. Leon, 468 U.S. 897 , 104 S.Ct. 3405 , 82 L.Ed.2d 677 (1984), albeit in a case involving the Fourth Amendment and the good-faith exception to the exclusionary rule:

Id. at 928 , 104 S.Ct. at 3423.

. Our court also noted this lack of guidance in 1987 in Fouche II. Citing Connecticut v. Barrett, 479 U.S. 523, 529 , 107 S.Ct. 828, 832 , 93 L.Ed.2d 920 (1987), and Smith v. Illinois, 469 U.S. 91, 96 , 105 S.Ct. 490, 493 , 83 L.Ed.2d 488 (1984), Judge Nelson said, "the Supreme Court has twice explicitly declined to rule on the permissible limits of interrogation following equivocal requests.” 833 F.2d at 1287, n. 3 .

. Counsel for Robinson suggests that this issue has already been decided in favor of retroactivity, citing Bruni v. Lewis, 847 F.2d 561 (9th Cir.), cert. denied, 488 U.S. 960 , 109 S.Ct. 403 , 102 L.Ed.2d 391 (1988); Robtoy v. Kincheloe, 871 F.2d 1478 (9th Cir.1989) cert. denied, - U.S. -, 110 S.Ct. 1483 , 108 L.Ed.2d 619 (1990); Norman v. Ducharme, 871 F.2d 1483 (9th Cir. 1989), cert. denied, - U.S. -, 110 S.Ct. 1483 , 108 L.Ed.2d 619 (1990). Although these cases applied Fouche retroactively, the issue was not discussed or presented in those cases. Thus they are not controlling as the law of the circuit on this question.

. This case provides an opportunity to reaffirm "the need for police questioning as a tool for effective enforcement of criminal laws.” Schneckloth v. Bustamante, 412 U.S. 218, 225 , 93 S.Ct. 2041, 2046-47 , 36 L.Ed.2d 854 (1973). Society currently needs all available and civilized tools to protect itself from crime, not just those available in a laboratory. To quote Schneck-loth: “At one end of the spectrum is the acknowledged need for police questioning as a tool for the effective enforcement of criminal law. Without such investigations, those who were innocent might be falsely accused, those who were guilty might wholly escape prosecution, and many crimes would go unsolved. In short, the security of all would be diminished.” 412 U.S. at 225 , 93 S.Ct. at 2046 (citations omitted).

. The unpublished opinion of the Second Appellate District of the Court of Appeal, 2d Crim. No. 42532, filed May 4, 1984, reveals that Robinson, although represented by distinguished counsel, did not raise the issue which is now central to his case. The only Miranda issue discussed related to the validity of his initial waiver on being advised of his rights.