Everetts v. United States

627 A.2d 981, 1993 D.C. App. LEXIS 158, 1993 WL 233380

• Court: District of Columbia Court of Appeals
• Decided: June 28, 1993
• Docket: 91-CF-38
• Status: Published

Opinions

FARRELL, Associate Judge:

Found guilty by a jury of felony murder while armed (D.C.Code §§ 22-2401, -3202 (1989)), three counts of armed robbery (D.C.Code §§ 22-2901, -3202), and one count of attempted robbery while armed (D.C.Code §§ 22-2902, -3202), appellant contends that his confession made to the police following his arrest was the product of “unnecessary delay” under Rule 5(a) of the Superior Court Rules of Criminal Procedure and 18 U.S.C. § 3501, and should have been suppressed for that reason. He also challenges the adequacy of the instructions given the jury relating to felony murder. Although the circumstances surrounding appellant’s confession are troubling, in particular the delay of eleven hours before this 16-year-old was taken before a judicial officer, during most of which he was handcuffed to a desk, we sustain the trial judge’s finding that the confession was made in compliance with 18 U.S.C. § 3501 and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and was therefore admissible. Rejecting as well appellant’s challenge to the jury instructions, we affirm the convictions except that we remand with directions to vacate the conviction for attempted robbery while armed, the predicate to the charged felony murder. Whalen v. United States, 445 U.S. 684, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).

I.

On December 27, 1989, appellant — then sixteen years old — and three codefendants were arrested at approximately 4:30 a.m. for the armed robbery of Jeffrey Crocker. After first being taken to the Youth Branch of the Metropolitan Police Department, appellant was brought to the Homicide Branch between 6:30 and 7:00 a.m. for questioning about the murder of John Coleman. There he remained handcuffed to a desk in an interview room until approximately 3:00 p.m., without being questioned. The three other suspects were detained elsewhere in the Homicide Branch. According to a detective, appellant was not questioned until 3:00 p.m. because the police were investigating the robbery and homicide and engaged in “large amounts of paperwork” related to these events. During his detention, appellant was given the opportunity to make one telephone call and was asked if he wanted something to eat or to use the bathroom.

At about 3:00 p.m., Detective Victor Smith advised appellant of his Miranda rights and asked whether he would make a statement without the benefit of an attorney. Before informing him of his rights, Smith told appellant that he “had talked with some other people that were in [appellant’s] company at the time of his arrest,” and that the investigation “had disclosed some circumstances that associated them with the homicide.” Smith intended “to make [appellant] aware ... that [he] would be attempting to get statements from everyone involved.” Appellant responded that he understood his rights and agreed to make a statement on videotape without an attorney present. At about 3:15 p.m., Detective Mayberry advised appellant of his rights a second time, and he again acknowledged his understanding of them and willingness to talk, signing a PD-47 rights card to that effect. At 3:26 p.m., two detectives began the videotaped interview after confirming with appellant his previous understanding of his rights and consent to talk without a lawyer present. The interview concluded at 3:42 p.m.

In his taped statement, appellant implicated himself directly or indirectly in the murder of John Coleman and the armed robberies of Jeffrey Crocker, Christie Lancaster, and Sherrie Fisher. He explained that he and the other defendants had been “riding around” in two separate cars early on December 27, 1989, when they stopped and robbed “this boy.” Everyone got out of the cars, and his companions repeatedly struck the victim, but appellant “didn’t get to hit him” because a dog came on the scene. The group rode around some more before one of them robbed a second person, Crocker, at gunpoint. They then drove around the corner before “jump[ing] out on these two girls,” Fisher and Lancaster, and robbing them at gunpoint of a coat and earrings. (Lancaster’s earrings were later found in appellant’s coat pocket). Finally, after additional driving, the occupants of both cars stopped when they saw a man, Coleman, walking along the street. An occupant of the second car got out, ran past Coleman, and motioned with his hand while looking at appellant and codefendant Alston. Appellant and Alston got out of their car, and Alston approached Coleman and struck him with his gun, causing him to fall to the ground. As appellant ran back to the car, he heard three gun shots. Coleman was shot four times in the back and died as a result.¹

In his oral motion to suppress the confession, appellant contended only that the statement was involuntary in the classic sense. In ruling on the motion, however, the trial judge raised independently the issue of whether the eleven-hour delay between appellant’s arrest and his presentment to a judicial officer violated the “without unnecessary delay” provision of Super.Ct.Crim.R. 5(a), making his statements suppressible under the McNabb/Mallory rule² and 18 U.S.C. § 3501. The judge found in this regard “that the Government has not presented any evidence that the time for the routine processing of this man required eleven hours before he could be brought to court and[,] indeed, the only evidence before the Court is that basically nothing was done with [appellant] between about 7:00 o’clock in the morning and 3:30 in the morning [sic; afternoon].” The judge also found it “clear that a ... judicial officer would have been available.” In short, the judge concluded that the delay in presenting appellant to a judicial officer was unnecessary. On the other hand, the judge found that appellant was advised of his Miranda rights — “albeit quite late in the game[,] ... in the vicinity of 2:30 to 3:30 [p.m.]” — and both “understood] those rights and ... execute[d] a valid waiver” of them. The judge found no evidence “that the delay here of eleven hours was calculated” or intended to “psychologically or otherwise coerce [appellant].” Furthermore, he concluded that,

other than the delay, there are no real— other real indicia of involuntariness in the ease and I say that based in part upon an objective examination of the factors that go to voluntariness and in part upon my own observation of the videotape, the confession.

It’s clear to me that notwithstanding the defendant’s age, he knew very clearly what was going on. It’s clear from the tape that he was calm. He was collected. He was rational. He did not show any apparent effects of being intimidated or threatened or being scared.

There is no indication on the tape that he was intoxicated or otherwise under the effect of drugs. There are no indications and inquiries [sic ] about his age or his reading ability or his intelligence [which] would have borne fruit in reflecting that he was not able to understand and know what was going on. To the contrary, the tape reflects that he clearly knew what was going on.

And there is no evidence of any fear, threats, coercion or force, physical or psychological, no evidence of any offer of award [sic; reward]. The length of time of the statement itself [was] certainly relatively minimal, within reasonable constraints. I think it was twenty to thirty minutes, as I recall, from looking at the clock on the wall.

[T]here were one or two officers present. I don’t even — they were in uniform. Their presence certainly was not intimidating by its nature, and given all of the circumstances surrounding the confession except for the extraordinary delay, I would find the confession voluntary.

After reviewing binding decisions of this court and the United States Court of Appeals for the District of Columbia Circuit³ concerning the relation between delay in presentment and a Miranda waiver, the judge ruled that the delay alone did not require suppression. “[0]nce somebody validly waives their Miranda rights, everything that Mallory[, supra, note 2] sought to accomplish has been accomplished and I don’t think ... there’s any Mallory problem and I don’t think there’s any volun-tar[iness] problem.” The judge therefore denied the motion to suppress.

II.

We recently summarized the law governing the interplay of Super.Ct.Crim.R. 5(a), 18 U.S.C. § 3501, and a valid waiver of Miranda rights. In Bond v. United States, 614 A.2d 892 (D.C.1992), we explained:

Super.Ct.Crim.R. 5(a) provides that an arresting officer “shall take the arrested person without unnecessary delay before the Court.” We have held that a confession obtained during a period of unnecessary delay is inadmissible in evidence. But we have further held, repeatedly, that “a valid waiver of an individual’s Miranda rights is also a waiver of his Mallory right to presentment without unnecessary delay.”

Id. at 899 (citations omitted). See also Byrd v. United States, 618 A.2d 596 (D.C.1992). In Bond we observed, for example, that in Bliss v. United States, 445 A.2d 625 (D.C.), amended on other grounds, 452 A.2d 172 (D.C.1982), we had upheld the admission of the defendant’s voluntary statements although his confession “took place more than twelve hours after his arrest but after he had validly waived his Miranda rights several times.” Bond, 614 A.2d at 899. In Bond we also discussed the effect that the later-adopted 18 U.S.C. § 3501 had upon Rule 5(a) (which by its terms “shall not be construed to conflict with or otherwise supersede [18 U.S.C. § 3501]”) and the Supreme Court’s decisions in McNabb and Mallory, supra note 2:

18 U.S.C. § 3501 plainly directs the admissibility analysis to “the issue of vol-untariness of the confession” and provides that, as relevant to this case where the delay exceeded six hours, the trial court was obliged to consider as one factor — though it “need not be conclusive” — the time elapsing between appellant’s arrest and presentment. “[T]he prime purpose of Congress in the enactment of § 3501 was to ameliorate the effect of the decision in Mallory [so as] to remove delay alone as a cause for rejecting admission into evidence of a confession....” Under the statute, “[t]he extent and nature of a suspect’s detention may ... be taken into account, as part of the totality of pertinent circumstances, in determining whether a confession was inadmissible for lack of voluntariness [in fact]” or voluntariness of the Miranda waiver.

Id. at 900 (citations omitted). See Byrd, 618 A.2d at 599. Hence, recognizing that voluntariness of the confession and of the waiver are the touchstone of analysis under § 3501, we have rejected appellant’s argument that a valid Miranda waiver cannot waive a prior period of unnecessary delay. See also Thomas v. United States, 351 A.2d 499, 501 n. 4 (D.C.1976). At the same time, however, we cautioned in Bond that “ ‘[t]he government’s reliance on the waiver of Miranda rights becomes weaker as the period of pre-arraignment detention increases.’ ” 614 A.2d at 901 (quoting United States v. Wilson, 838 F.2d 1081, 1087 (9th Cir.1988)).

In Bond we held that a pre-presentment delay of thirty-six hours between arrest and the confession “did not affect the totality of the circumstances demonstrating appellant’s voluntary waiver,” and we thus sustained the admission of the confession. Id. (footnote omitted). Significantly, however, “the [trial] judge [in Bond ] found the delay to be reasonable” because the arrest took place on a weekend and the defendant’s own deceptive conduct contributed to the inability to get him to court before the Saturday morning deadline for presentments. Id. In this case, by contrast, the trial judge found no justification for the delay in presentment. Also, neither Bond nor our most recent decision on this subject, Byrd, apparently involved the detention of a juvenile, a factor which the court has recently made clear requires special attention in considering the voluntariness of a consent. In re J.M., 619 A.2d 497, 502-04 (D.C.1992) (en banc) (consent to search of person). Finally, our admonition in Bond that reliance on a Miranda waiver becomes weaker as the length of pre-pres-entment detention grows necessarily implies that at some point unjustified delay in presentment may trump all other factors in the ultimate voluntariness determination.

Consequently, we find this a troublesome case to decide given the facts (1) of an unnecessary delay of eleven hours in presentment (2) of a 16-year-old boy (3) who for up to eight hours of that detention was handcuffed to a desk, severely restricting his movement. Appellant points in addition to the potential psychological coercion (intended by the police or not) implicit in the youth’s being told by the detective that his codefendants were also being interrogated about the crimes.⁴ In seeking to justify the delay, the government argued to the trial judge that some latitude must be allowed the police in a multi-suspect case involving a spree of robberies culminating in a homicide, with the attendant need to identify civilian witnesses. But the record of what transpired during the eight hours is sketchy, and we certainly agree with the judge that the detective’s explanation of “large amounts of paperwork” could not justify essentially ignoring appellant for eight hours or more in a position of obviously increasing physical discomfort. In short, our concerns in this case must serve as a warning to the police that unnecessary pre-presentment delay of this length, aggravated by factors such as youth, will be met with serious skepticism by the courts of this jurisdiction about the voluntariness of an ensuing Miranda waiver.

Having said this, we nonetheless find substantial support in the record for the trial judge’s conclusion that appellant’s waiver of his rights was knowing, intelligent, and voluntary. E.g., Byrd, 618 A.2d at 598 (“We will not overturn the trial court’s findings of fact on [the Miranda waiver] issue unless they are without substantial support in the evidence”). In addition to hearing the testimony of the detectives, Judge Greene viewed the videotape of appellant’s statement, as have we. It supports the judge’s findings that appellant “knew very clearly, what was going on”— although it is doubtful he knew the legal, i.e., felony-murder, implications of his admissions — and showed no signs of psychological manipulation by the police. The taped interview itself was not preceded by any interrogation,⁵ unlike in Byrd, supra, where we upheld the waiver despite repeated antecedent questioning and a six-hour delay in presentment. And appellant showed no hesitation in answering the detectives’ questions. Although he was handcuffed to the desk for eight hours, he was offered food and the opportunity to make a phone call and use the bathroom.⁶ Viewed from his present perspective, the police in leaving him alone during this time were playing “mind games” by letting him worry about the cooperation of his code-fendants; but in that same apparent indifference to appellant the judge reasonably found “no evidence of any fear, threats, coercion or force, physical or psychological, [and] no evidence of any offer of award [sic; reward].” Finally, in keeping with our decision in In re J.M., the judge focused explicitly on appellant’s youth, and found that despite his age he displayed normal intelligence and alertness to his surroundings, and no sign of fear or intimidation.

We hold, therefore, that the facts in this case are not sufficiently distinguishable from those in Byrd, Bond, Bliss, or other decisions of ours sustaining the admission of a confession despite pre-presentment delay, for us to reverse the denial of the suppression motion.

Despite its attempt to distinguish our prior decisions such as Byrd and Bond, supra, our concurring colleague’s opinion that unnecessary delay in presentment alone (in excess of six hours) is ground for suppressing a confession without regard to the validity of an ensuing Miranda waiver cannot be reconciled with our decisions and must be presented to the court en banc. The rule we distilled from our precedents in Bond, i.e., that a primary purpose of 18 U.S.C. § 3501 was “to remove delay alone as a cause for rejecting admission into evidence of a confession,” 614 A.2d at 900 (citations and internal quotation marks omitted), was certainly not understood to apply only to delay following a waiver of Miranda rights.⁷ The distinction between pre-waiver delay (suppression without more) and post-waiver delay (suppression if Miranda waiver involuntary) that is key for the concurring opinion is not supported by our decisions. As to the purported clash of Byrd and Bond with earlier binding decisions of the United States Court of Appeals for the District of Columbia Circuit, see post at 991, that conflict would undoubtedly come as a surprise to the authors of the entire chain of decisions of this court preceding Bond, see 614 A.2d at 899, which applied waiver analysis in the manner we do here as consistent with prior Circuit Court precedent binding on us. E.g., Hawkins v. United States, 304 A.2d 279, 281 (D.C.1973). And see United States v. Poole, 161 U.S.App.D.C. 289, 294, 495 F.2d 115, 120 (1974).

Furthermore, the concurring opinion does not explain how a statute (§ 3501) which declares at the very outset that “a confession ... shall be admissible in evidence if it is voluntarily given,” and expressly purports to make violation of Miranda's requirements only one factor “in determining the issue of voluntariness,” see § 3501(b)(3),⁸ was nonetheless intended to permit exclusion of a confession solely because Rule 5(a) has been violated, without any regard to the voluntariness of the confession or the Miranda waiver.

The concurring opinion faults us (or rather this court’s prior decisions) for merely emphasizing that as the length of pre-pres-entment delay increases, it undermines the government’s ability to establish a voluntary Miranda waiver. E.g., Bond, 614 A.2d at 901 (“[t]he government’s reliance on the waiver of Miranda rights becomes weaker as the period of pre-arraignment detention increases”) (citations omitted). According to the concurrence, this provides “no limiting principle” and “one can only speculate” as to when such delay, considered together with all other factors, will render a waiver involuntary. Post at 993-994. But the very same criticism of indefiniteness can be made of the concurring opinion’s rule that once six hours have elapsed, delay in presentment alone may dictate suppression so long as a trial judge considers it “too long,” without regard to its impact on the voluntariness of the confession or the Miranda waiver. Even if our decisions did not compel us to do so, we would adhere to our understanding of § 3501 as requiring the trial judge to take unnecessary delay “into consideration [as part of] all the circumstances surrounding the giving of the confession....” § 3501(b).

III.

Appellant was convicted of first degree felony murder. He contends that the jury should have been given a lesser included offense instruction on second degree felony murder that would allow a conviction of second degree murder if the jury found he had committed an underlying felony, but the attendant homicide resulted from the killer’s “own agenda rather than the common purpose” of the felony. Appellant concedes it is unclear whether the offense of second degree felony murder exists in the District of Columbia, and also admits he “never clearly articulated” a request for such an instruction. In truth, appellant did not request at all the instruction he now advocates. He asked only for instruction on the “lesser included offense of second degree murder,” which the trial court gave. Since appellant did not “stat[e] distinctly” the omission to which he now objects in the court’s instructions, Super.Ct.Crim.R. 30, the judge had no occasion to consider his theory of residual second degree felony murder. Nor did the judge commit “plain error” in failing to so instruct, e.g., Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc), for the very uncertainty appellant concedes as to whether such a category even exists, or whether it would fit his circumstances,⁹ demonstrates the absence of plain error. Moreover, the jury was instructed on second degree murder, hence had adequate opportunity to consider whether to convict appellant of the lesser included offense.

At oral argument, though not in his brief, appellant made a separate argument that it was plain error for the judge not to instruct the jury that, in order to convict him of first degree felony murder, it must find that the murder was committed in furtherance of the common felonious scheme. Criminal Jury Instructions for the District of Columbia, No. 4.22(C) (3d ed.1978); see also Butler v. United States, 614 A.2d 875, 886 (D.C.1992). Our review of the transcript, however, reveals that when the prosecutor called the judge’s attention to this precise omission, the judge supplemented the jury instructions with the charge appellant claims was not given. Thus, there was no error at all in the instructions.

IV.

We therefore remand the case to the Superior Court with directions to vacate the conviction for attempted robbery. In all other respects the judgment of conviction is affirmed.

So ordered.

1 . Appellant was tried separately from his code-fendants. At trial Crocker, Lancaster and Fisher all testified and described the assaults against them. An eyewitness, James Gunn, corroborated portions of appellant’s statement concerning the shooting of Coleman. The evidence implicating appellant in the felony murder was sufficient without regard to whether appellant personally brandished a gun during any of the assaults.

2 . McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957).

3 . Pettyjohn v. United States, 136 U.S.App.D.C. 69, 419 F.2d 651 (1969), cert. denied, 397 U.S. 1058, 90 S.Ct. 1383, 25 L.Ed.2d 676 (1970); Woodson v. United States, 488 A.2d 910 (D.C.1985).

4 . See A. Rapoport, Fights, Games, and Debates (1960).

5 . Detective Smith’s conversation with appellant in which he informed him that he was a suspect and obtained his agreement to make a videotaped statement lasted "less than four minutes.”

6 . At the beginning of the taped interview, appellant stated that "I [have] been offered something to drink, and went to the bathroom and had a phone call.”

7 . In Byrd, supra, for example, there is no indication that the defendant had waived his Miranda rights (as distinct from merely being informed of them) between his arrest and the waiver of his rights more than six hours later. And in Bond we explicitly took into account the defendant’s repeated waivers during the thirty-six hour post-arrest period as one factor in the totality of the circumstances bearing on the voluntariness of the waiver. See 614 A.2d at 901.

8 . Whether it succeeds in doing this constitutionally is an issue the Supreme Court has not had occasion to decide.

9 . See Comber v. United States, 584 A.2d 26, 40 n. 15 (D.C.1990) ("[I]t might be argued that Congress left a residual category of second degree felony murder, in which the malice required for murder stems from the commission of a non-enumerated felony") (emphasis added). Appellant, of course, was charged with and found guilty of a statutorily enumerated felony.