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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CF-0546
SEAN TYLER GREEN, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeal from the Superior Court of the District of Columbia (2015-CF1-014494)
(Hon. Judith Bartnoff, Trial Judge)
(Argued December 5, 2023 Decided May 23, 2024)
Gregory M. Lipper for appellant.
Daniel J. Lenerz, Assistant United States Attorney, with whom Matthew M. Graves, United States Attorney, and Chrisellen R. Kolb, John P. Mannarino, and Michelle D. Jackson, Assistant United States Attorneys, were on the brief, for appellee.
Before EASTERLY, MCLEESE, and SHANKER, * Associate Judges.
* Associate Judge AliKhan was originally assigned to this case. Following her appointment to the U.S. District Court for the District of Columbia, effective December 12, 2023, Associate Judge Shanker has been assigned to take her place on the division. 2
MCLEESE, Associate Judge: Appellant Sean Tyler Green challenges his
convictions for first-degree murder and related offenses. We hold that Mr. Green’s
post-arrest statements were obtained in violation of the requirements of Miranda v.
Arizona, 384 U.S. 436 (1966). We therefore vacate Mr. Green’s convictions and
remand the case for further proceedings.
I. Factual and Procedural Background
A. Mr. Green’s Motion to Suppress
Before trial, Mr. Green moved to suppress evidence of videotaped statements
he made to the police after his arrest, arguing that the statements were taken in
violation of Miranda. The evidence at the hearing on the motion to suppress
included the following.
Detective Anthony Patterson questioned Mr. Green. After explaining the
charges to Mr. Green, Detective Patterson gave Mr. Green advice about Miranda
rights. Those rights were accurately stated in writing on a standard
police-department form (“PD-47”) that Detective Patterson provided to Mr. Green.
See generally, e.g., Henson v. United States, 563 A.2d 1096, 1097 (D.C. 1989)
(PD-47 is standard advice-of-rights form). Detective Patterson also orally advised
Mr. Green of his rights. Detective Patterson’s initial oral advice for the most part 3
followed the wording of the written advice, with two important differences that are
italicized in the following quote:
You have the right to talk to a lawyer for advice before we question you and to have [a lawyer] with you during questioning. That does not happen here. You know, there is not a lawyer out there. We’re not going to bring a lawyer in here to talk to you. That happens when you get down to court, okay? If you cannot afford a lawyer and want one, a lawyer will be provided for you. That also happens when you get to court. They’ll, you know -- they have a court-appointed lawyer unless you have your family -- if they want to pay for a lawyer, you can do that as well. All right? If you want to answer questions now, without a lawyer present, you still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer, okay?
Detective Patterson then asked Mr. Green the first question on the PD-47:
Detective: Okay? Now, have you read, or had read to you, the warning as to your rights?
Mr. Green: Was it this paper?
Detective: That’s what I just did.
Mr. Green: Uh-huh.
Detective: I read it to you, okay?
Mr. Green: I mean, you just gave me a whole lot all in one.
Detective: Okay, all right. But this is -- I am referring to your warning -- your rights.
Mr. Green checked a box on the PD-47 to indicate that he had read his rights
or had them read to him. Detective Patterson then asked Mr. Green the second and 4
third questions on the PD-47: whether Mr. Green understood his rights and whether
he wished to answer any questions. Mr. Green eventually replied in the affirmative
to both questions, after some back-and-forth in which Mr. Green expressed
confusion and Detective Patterson further explained the reasons for Mr. Green’s
arrest.
Another detective who was present, Detective Garner, interjected the
following:
You can read it over. Because you can answer questions and you still have -- it says right there -- that you still have to stop answering any questions until you talk to a lawyer. So, if you want to talk to us and then, eventually, you just say, “Okay, I don’t want to talk anymore”, that’s what that’s saying.
Detective Patterson also said. “At any point -- we’re talking to you -- at any point
during our conversation about this, if you decide, ‘Hey, Detective Patterson,
Detective Garner, I don’t want to talk about it anymore’, you have that right.”
Finally, Detective Patterson asked Mr. Green the last question on the PD-47,
adding the material italicized in the following quote:
And, the last question is, are you willing to answer questions without having an attorney present? And, again, we don’t -- there’s not going to -- we don’t bring attorneys in here. So, that’s -- you aren’t going to have an attorney present anyway. 5
Mr. Green waived his Miranda rights and so indicated in writing on the
PD-47.
The trial judge denied the motion to suppress, ruling that Mr. Green had
knowingly and voluntarily waived his Miranda rights.
B. The Evidence at Trial
The legal issue that we decide in this appeal does not turn on the evidence
introduced at trial, so we only briefly summarize that evidence.
Derrick Black was shot and killed in July 2015. A witness saw two
individuals running across a street, pursued by a man who fired several shots. One
of the men being chased fell in the middle of the street. The shooter ran up to that
man, who was Mr. Black, shot him twice more as he lay on the ground, and then ran
away. A police surveillance camera positioned about a block away recorded the
shooting, and an enhanced version of the recording was shown at trial.
Police recovered from the scene a cellphone, a magazine containing several
rounds of ammunition, and several cartridge casings. A search revealed that the
phone had been set up with an email address and phone number associated with
Mr. Green. Additionally, DNA on the magazine matched Mr. Green’s DNA.
Mr. Green was arrested several months after the shooting and was questioned
by the police. During his interview, Mr. Green made several false exculpatory 6
statements, including that he had been in drug treatment from July 2015 to
September 2015 and that his phone had been stolen before the shooting. Mr. Green
at one point admitted to committing the shooting, but he claimed that he did so
because someone had threatened to kill him unless he killed Mr. Black. Eventually,
Mr. Green said that he did not recall the shooting but that he believed that another
person had committed the shooting.
II. Analysis
The focus of the briefing in this case, and of the trial court’s ruling, was on
whether Mr. Green’s waiver of his Miranda rights was knowing, intelligent, and
voluntary. At oral argument, however, much of the discussion focused on a related
but antecedent question: whether the advice of rights given to Mr. Green was legally
adequate. See generally, e.g., Miranda, 384 U.S. at 467 (“The accused must be
adequately and effectively advised of his [or her] rights . . . .”); id. at 470 (“No
effective waiver of the right to counsel during interrogation can be recognized unless
specifically made after the warnings we here delineate have been given.”).
The brief of the United States acknowledges the requirement that adequate
advice of rights must be provided and discusses cases interpreting the requirement.
The United States did not explicitly contend at oral argument that the question
whether that requirement was met in this case was not properly before this court for
decision. Nor did the United States request an opportunity to file a supplemental 7
brief more fully addressing the question. Moreover, because the advice of rights in
this case was videotaped, there is no factual dispute as to what advice the police gave
Mr. Green. With the exception of one factual point that we discuss infra, whether
the advice of rights provided in this case was adequate is therefore a pure question
of law that we can decide de novo. See, e.g., United States v. Crumpton, 824 F.3d
593, 604-05 (6th Cir. 2016) (“[T]he question before us is a legal one: Given the
undisputed words that were said and the undisputed recording of them, were the
[warnings] legally sufficient?”) (citing cases). Under the circumstances, and seeing
no procedural unfairness, we exercise our discretion to consider the issue. See
generally, e.g., Outlaw v. United States, 632 A.2d 408, 410 n.7 (D.C. 1993) (“[A]
court may consider an issue antecedent to and ultimately dispositive of the dispute
before it, even an issue the parties fail to identify and brief.”) (ellipsis and internal
quotation marks omitted).
The Supreme Court held in Miranda that “statements made by an accused
while in police custody are inadmissible unless the police[,] prior to questioning,
warn [the accused] that [the accused] has the right to the presence of an attorney.”
Di Giovanni v. United States, 810 A.2d 887, 891 (D.C. 2002) (ellipses and internal
quotation marks omitted). That warning, like the other warnings required by
Miranda, is necessary because “interrogation in certain custodial circumstances is 8
inherently coercive.” New York v. Quarles, 467 U.S. 649, 654 (1984) (footnote
omitted).
Miranda warnings need not be provided in the precise words used by the
Supreme Court in Miranda in order to be valid. See, e.g., Henson v. United States,
563 A.2d 1096, 1097 (D.C. 1989) (Supreme Court “has never insisted that the
warnings be given in the exact words of [Miranda]”). Nevertheless, in cases
reaching back nearly fifty years, this court has emphasized the risk created when
officers depart from the wording approved by the Supreme Court in Miranda. See
id. (“We take this occasion, however, to repeat an admonition expressed by us over
a decade ago in reviewing another case in which an officer expanded upon the
language of the standard Miranda warning. We noted that ‘the recurrence of this
question in the decisions, however, points up the unnecessary litigation that is
created by embellishments on the essentials of Miranda.’”) (quoting United States
v. Rawls, 322 A.2d 903, 907 n.12 (D.C. 1974)) (brackets omitted).
In considering whether the advice of rights in this case was legally adequate,
we must examine the advice as “a totality,” to determine whether the advice
“reasonably convey[ed the] rights as required by Miranda.” Duckworth v. Eagan,
492 U.S. 195, 203, 205 (1989) (internal quotation marks omitted). We hold that the
advice of rights in this case, considered as a totality, did not reasonably convey to 9
Mr. Green that he had a right to the assistance of a lawyer before and during
interrogation.
Detective Patterson’s initial advice about the right to the assistance of a lawyer
presents a mixed picture. On one hand, in the language underlined in the quote
below, Detective Patterson clearly stated that Mr. Green had a right to talk to a
lawyer before questioning, to have a lawyer present during questioning, and to stop
answering at any time until he talked to a lawyer. On the other hand, in the language
italicized in the quote below, Detective Patterson made clear that Mr. Green was not
going to actually have access to a lawyer until Mr. Green went to court.
You have the right to talk to a lawyer for advice before we question you and to have [a lawyer] with you during questioning. That does not happen here. You know, there is not a lawyer out there. We’re not going to bring a lawyer in here to talk to you. That happens when you get down to court, okay? If you cannot afford a lawyer and want one, a lawyer will be provided for you. That also happens when you get to court. They’ll, you know -- they have a court-appointed lawyer unless you have your family -- if they want to pay for a lawyer, you can do that as well. All right? If you want to answer questions now, without a lawyer present, you still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer, okay?
The Supreme Court has made clear that it is lawful under Miranda for the
police to decline to provide a lawyer to a suspect before and during interrogation.
Eagan, 492 U.S. at 204 (“Miranda does not require that attorneys be producible on
call . . . . If the police cannot provide appointed counsel, Miranda requires only that 10
the police not question a suspect unless [the suspect] waives [the] right to counsel.”).
Thus, Detective Patterson’s statements that a lawyer would not be provided to
Mr. Green were not themselves contrary to the requirements of Miranda. Nor were
those statements logically inconsistent with the right to counsel under Miranda,
because a suspect who wants to talk to a lawyer before questioning, or to have a
lawyer present during question, can decline to answer questions if the police are not
willing to accommodate the suspect’s desire for the assistance of a lawyer.
Nevertheless, the Supreme Court has acknowledged the concern that can arise
when “the reference to the right to appointed counsel [is] linked to a future point in
time after the police interrogation.” Eagan, 492 U.S. at 204 (brackets and internal
quotation marks omitted). In some circumstances, such linkage can cause the advice
of rights to fail to adequately “apprise the accused of [the] right to have an attorney
present if [the accused] chose to answer questions.” Id. at 205; see also Rawls, 322
A.2d at 907 n.12 (noting concern that statement that attorney would not be provided
until suspect went to court could “be . . . used in a manner which may well result in
confusion on the part of suspects as to their Miranda rights”). That is so because a
suspect who wants the assistance of a lawyer but is being denied such assistance
might not realize that the correct way to respond is to refuse to answer questions
unless and until a lawyer is provided. Unless that point is made explicit, such a
suspect might instead conclude that the right to counsel is simply not being honored. 11
If the passage just quoted were the only relevant advice of rights in this case,
the outcome of this case would arguably be controlled by the Supreme Court’s
decision in Eagan. In Eagan, the advice of rights included the following, with the
disputed language italicized:
You have a right to talk to a lawyer for advice before we ask you any questions, and to have [a lawyer] with you during questioning. . . . We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer.
492 U. S. at 198.
Although the advice of rights in Eagan included one statement that tied the
right to counsel to a future point after interrogation, the Supreme Court held that the
advice of rights as a whole was adequate, because other statements in the advice of
rights adequately clarified that Mr. Eagan had a right to counsel before and during
questioning. Eagan, 492 U.S. at 200-05. The initial advice from Detective Patterson
quoted above seems relatively comparable to the passage just quoted from Eagan.
We also note that in this case Mr. Green signed the PD-47, which explicitly stated
that Mr. Green had the right to talk to a lawyer before questioning, to have a lawyer
present at questioning, and to stop questioning at any time to talk with a lawyer. 12
This case differs from Eagan, however, because of several additional
problematic circumstances. First, after orally advising Mr. Green as described
above, Detective Patterson asked if Mr. Green had read, or had read to him, the
warning as to his rights. When Mr. Green asked, “Was it this paper?,” referring to
the PD-47, Detective Patterson indicated that he had just read the PD-47 to
Mr. Green. That was imprecise at best, because in fact Detective Patterson had
provided Mr. Green with additional oral advice that was not reflected on the PD-47.
Moreover, it does not appear from the videotape that Mr. Green ever actually read
the advice of rights on the PD-47, as opposed to relying on Detective Patterson’s
oral advice of rights. For these reasons, we do not view the written advice of rights
as providing useful clarification of Mr. Green’s rights.
Second, during the advice of rights, Mr. Green repeatedly indicated his
confusion. When asked whether he had read the warnings or had them read to him,
Mr. Green said, “you just gave me a whole lot all in one.” When asked whether he
understood his rights and wanted to answer questions, Mr. Green said, “I mean, I got
some questions I would like to ask. I mean, I’m so . . . confused right now.” When
asked again whether he wanted to answer questions, Mr. Green said, “I’m just
confused about -- I mean, I’m sorry. I heard what you said but it’s just, that’s a lot
to take in.” 13
We recognize that the trial court found as a matter of fact that Mr. Green’s
expressions of confusion related to the charges and evidence against Mr. Green
rather than to the advice of rights. After reviewing the record, including the video
recording of Mr. Green’s interrogation, however, we conclude that this factual
finding was clearly erroneous. See generally, e.g., Zanders v. United States, 75 A.3d
244, 247 (D.C. 2013) (court will uphold trial court’s factual findings unless those
findings are clearly erroneous). It is true that Detective Patterson testified that he
understood Mr. Green’s expressions of confusion to relate to the charges and
evidence against Mr. Green. With respect to the three expressions of confusion just
described, however, we think that Mr. Green was clearly expressing confusion at
least in part about the advice of rights. That was what was being discussed at the
time. Moreover, during the interview Detective Patterson clearly interpreted these
expressions of confusion to be about the advice of rights, because Detective
Patterson responded each time by discussing the advice of rights. In determining
whether Mr. Green was adequately advised of his rights, we therefore take into
account that Mr. Green repeatedly expressed confusion to Detective Patterson. See
Doody v. Ryan, 649 F.3d 986, 1004 (9th Cir. 2011) (holding Miranda warnings
inadequate because, among other things, “[d]espite . . . [defendant’s] subsequently
conveyed confusion . . . [the detective] ignored [defendant’s] query[] and moved on
to the next item on his printed list”); cf., e.g., Di Giovanni, 810 A.2d at 894 (in
assessing whether police officer’s “embellishments” of advice of Miranda rights 14
“vitiated the validity” of suspect’s waiver of rights, court states, “Here, we are
presented with an appellant who was clearly having trouble understanding [] his
rights[] and was therefore completely reliant on Sergeant Cortright’s explanations
and embellishments.”).
Third, immediately after Mr. Green’s third expression of confusion, Detective
Garner gave further oral advice that was confusing and inaccurate, saying, “[I]t says
right there -- that you still have to stop answering any questions until you talk to a
lawyer. So, if you want to talk to us and then, eventually, you just say, ‘Okay, I
don’t want to talk anymore’, that’s what that’s saying.”
Fourth, when discussing the last question on the PD-47—whether Mr. Green
was willing to answer questions without having an attorney present—Detective
Patterson told Mr. Green that “[W]e don’t bring attorneys in here. So . . . you aren’t
going to have an attorney present anyway.” That comment was not qualified in any
way, and Detective Patterson did not explain to Mr. Green that if Mr. Green did not
wish to answer questions without a lawyer, the police would honor that preference
and would not question Mr. Green in the absence of a lawyer. Rather, Detective
Patterson’s final comment would naturally be understood to indicate that there
would be no point to Mr. Green’s invoking rather than waiving his right to assistance
of counsel. 15
We view this case as quite different from Eagan, in which there was a single
comment that tied the right to counsel to a future point after interrogation, but other
statements in the advice of rights both before and after that comment adequately
clarified that Mr. Eagan had a right to counsel before and during questioning. Eagan,
492 U.S. at 200-05. Rather, we view this case as comparable to Robinson v. United
States, 142 A.3d 565 (D.C. 2016), which also involved Detective Patterson. In
Robinson, Detective Patterson read a suspect the Miranda warnings but added a
comment that “we don’t provide you a lawyer here.” Id. at 567. Relying on Eagan,
we held that this comment by itself did not render the advice of rights legally
inadequate. Id. at 569-70. We nevertheless held that Mr. Robinson’s statements
were not lawfully obtained under Miranda. Our holding rested on the fact that
Detective Patterson then read three of the four questions on the PD-47 form, but
intentionally omitted the fourth question—“Are you willing to answer any questions
without having an attorney present?” Id. at 570. Detective Patterson testified as to
his reason for omitting the fourth question: “I’d already told [Mr. Robinson] that he
was not going to have a lawyer present during questioning. Once he agreed to talk
to me I didn’t see any point in asking him if he wanted to talk to me without a lawyer
present.” Id. at 571. We held that Detective Patterson’s failure to ask Mr. Robinson
whether Mr. Robinson was willing to answer questions without an attorney
“produce[d] the obvious concern that [Mr.] Robinson did not intentionally abandon
his right to have counsel present during questioning.” Id. 16
This case obviously differs from Robinson, because in this case Detective
Patterson did ask Mr. Green whether he was willing to answer questions without
having an attorney present. In our view, however, the comments that Detective
Patterson interjected right before Mr. Green answered that question essentially
informed Mr. Green that there was no point to invoking the right to counsel, because
counsel would not be provided.
For the foregoing reasons, we hold that Mr. Green was not adequately advised
of his Miranda rights and that evidence of Mr. Green’s statements therefore should
not have been admitted into evidence at trial. The United States acknowledges that
it cannot establish that the admission of Mr. Green’s statement into evidence was
harmless. We agree, and we therefore vacate Mr. Green’s convictions and remand
for further proceedings.
Finally, we note that Mr. Green also challenges the jury instruction on the
elements of the offense of unlawful possession of a firearm. Mr. Green
acknowledges that he did not raise that issue in the trial court, however, and he relies
on a case decided after trial in this case. Rehaif v. United States, 139 S. Ct. 2191
(2019). Because we are vacating all of Mr. Green’s convictions on a different
ground, we need not consider Mr. Green’s newly raised challenge to the jury
instruction. Rather, we leave that issue to be considered in the first instance by the
trial court on remand in the event of a retrial. 17
In sum, we vacate the judgment of the Superior Court and remand the case for
further proceedings.
So ordered.