McKeamer v. United States

452 A.2d 348, 1982 D.C. App. LEXIS 470

• Court: District of Columbia Court of Appeals
• Decided: October 27, 1982
• Docket: 81-396
• Status: Published

Opinions

MACK, Associate Judge:

Appellant challenges her conviction of second-degree murder while armed, D.C. Code 1973, §§ 22-2403, -3202, claiming that the trial court erred in refusing to suppress statements elicited from her in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). We agree and reverse.¹

In the early evening of February 10, 1980, Officers Sonia Maldonado and Robert Rau responded to a radio run for a stabbing at an apartment building on 13th Street, Northwest. When they arrived at the building at 6:25 p.m. they went first to Apartment 34 where the victim, apparently deceased, was lying on a bed. Members of the ambulance crew who had been attending the deceased (later identified as appellant’s boy friend) told the officers that the person responsible for the stabbing was across the hall. As they entered Apartment 32 they saw appellant, another woman and a child. Before the officers said anything, appellant, referring, to the other woman, said “This is my cousin. I stabbed him.”

At that point Officer Rau advised appellant of her Miranda rights and presented her with a PD 47 card to sign. She answered “no” to the third and fourth questions of the card, thus indicating that she was not willing to answer questions and wished to have a lawyer present. She then refused to sign the card and Officer Maldonado wrote “Refused” on the line provided for the signature of the accused.

Thereafter, neither officer questioned appellant about the stabbing. Appellant repeated several times that she had stabbed the decedent, however, and asked if the victim was dead and what was going to happen to her next. Officer Rau testified at the hearing on the motion to suppress that appellant had been drinking but was not intoxicated and that he noticed no impairment in her speech. Officer Maldonado, who arrested appellant and transported her to the Homicide Bureau, testified that once at the Bureau appellant became increasingly nervous and hesitant about talking and asked repeatedly for cigarettes.² She further testified that she knew appellant was to be interrogated about the crime when she arrived at the Homicide Bureau, that appellant led her to believe that she did not want to answer any questions and that she did not tell the detectives who interviewed appellant at the Homicide Bureau that appellant had indicated she did not want to answer questions.

Detective John Aduddell met appellant in an interview room at the Homicide Bureau at approximately 7:15 p.m. Appellant was handcuffed to a radiator³ and while Adud-dell noticed a trace of alcohol on appellant’s breath and that she had been crying, he testified that she was coherent. He read her Miranda rights and testified that she indicated that she was willing to talk. He then said to her “Jackie, tell me what happened tonight.” He did not ask her whether she had been previously advised of her rights nor did he confer with Officer Maldonado, who was present, about whether appellant had earlier waived those rights.⁴

In response to Detective Aduddell appellant began her statement soon after she entered the interview room. As she spoke, the detective typed out the first two pages of the statement which was ultimately three pages in length. He described his encounter with appellant as “cordial” and “friendly.”

After Detective Aduddell finished interviewing appellant at approximately 8:00 p.m., Detective Francis McCloskey, who had investigated the crime scene and spoken to appellant briefly there, began to interview appellant. He testified that he did not give appellant fresh Miranda warnings before he began questioning her. He testified that she told him she had gone to school through the seventh grade but could not read too well because she was not wearing glasses. He, therefore, at approximately 8:15 p.m., read her statement to her and noticed that she had not executed a Miranda waiver form. He asked her the questions required under Miranda and she wrote “you” in response to the first two questions. When McCloskey pointed out her mistake she changed her responses to “yes” and then answered the other questions affirmatively and signed the waiver as well as each of the three pages of her statement.

Appellant moved to suppress her spontaneous statement at the apartment as well as the statement she made at the Homicide Bureau, claiming they were involuntary and elicited in violation of the strictures of Miranda. The trial court refused to suppress either of the statements. It ruled that the statements made at the crime scene were voluntary. It further found, inter alia, that appellant was fully apprised of her rights at the scene, that she was readvised at the Homicide Bureau, that she, thus, had an opportunity to again decline to answer questions and that her ultimate agreement to answer was voluntary.

On appeal, appellant contends that the trial court erred in not suppressing the statements made by appellant at the Homicide Bureau in that the detectives failed to “scrupulously honor,” Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), her rights to remain silent and to have an attorney present which she invoked when first informed of her rights under Miranda.

This case involves, as did our recent decisions in Wilson v. United States, D.C.App., 444 A.2d 25, 27 (1982) (violation of Fifth Amendment right to remain silent) and United States v. Alexander, D.C.App., 428 A.2d 42, 43, 48 (1981) (violation of Fifth Amendment right to counsel) the “second level” of Miranda rights. Thus, the question here is

not whether the appellant was advised of [her] rights but, rather, whether [she] had invoked [her] right to remain silent and, if so, whether the detectives failed to “scrupulously honor,” Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), that right by continuing to “interrogate” [her]. If we find that the detectives scrupulously honored that right we must then look to whether the appellant “intentionally relinquished] or aban-donad]” [her] right to remain silent. [Id. at 27-28 (citing Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).]

United States v. Alexander, supra at 48-49 n. 19, 52 n. 27.

The trial court found that appellant invoked her right to remain silent and to have an attorney present. Finding that conclusion to have been supported by substantial evidence, we affirm it. D.C.Code 1981, § 17-305(a).⁵

“Once warnings have been given, the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” Miranda v. Arizona, supra, 384 U.S. at 473-74, 86 S.Ct. at 1627-28 (footnote omitted). We must assess the record in this case to determine whether the detectives, by questioning appellant at the Homicide Bureau regarding the crime, failed to “scrupulously honor” the rights she had invoked.

We are met at the outset with the trial court’s rejection of appellant’s motion to suppress and its findings that appellant was readvised of her rights at the Homicide Bureau and voluntarily agreed to answer questions at that time. While we may not disturb a trial court’s denial of a suppression motion so long as it is supported by substantial evidence, D.C.Code 1981, § 17— 305(a), in making this determination we may and do conclude, as a matter of law, that appellant’s rights were not scrupulously honored and, therefore, both Miranda, supra and Mosley, supra required the exclusion of her statement. See United States v. Alexander, supra at 50.

In Mosley, the Supreme Court noted the factors which are to be considered in determining whether a suspect’s right to cut off questioning has been scrupulously honored. They are: 1) was the suspect orally advised of his rights and did he orally acknowledge them; 2) did the police immediately cease questioning and make no attempts to resume or ask him to reconsider; 3) was there a sufficient break (in Mosley, two hours) between the first and second interrogations and was the second performed at a different location by a different officer about a different crime and 4) were Miranda warnings given before the second questioning session. The Court in Mosley answered the questions affirmatively and reinstated his conviction.

Turning to the instant facts, the record reflects that appellant, a twenty-four-year old woman with an I.Q. of 59 and no prior experience with the criminal justice system, was apprised of her rights both at the crime scene, where she invoked them, and at the Homicide Bureau. It also reflects that although Officers Maldonado and Rau ceased questioning appellant, after her invocation, Officer Maldonado transported appellant immediately to the Homicide Bureau where she knew questioning would be and was resumed. It further reflects that while Officer Maldonado knew that appellant did not wish to speak to anyone about the crime, with or without an attorney present, she did not attempt to obtain counsel for appellant, see Edwards v. Arizona, 451 U.S. 477, 482, 101 S.Ct. 1880, 1883, 68 L.Ed.2d 378 (1981), nor did she inform Detective Aduddell that appellant had earlier invoked her Miranda rights. Moreover, the different location to which appellant was delivered was the potentially coercive one of an interview room, where she was immediately met by a detective who initiated the questioning. See Wilson v. United States, supra at 29. Under these circumstances, we cannot find that the detectives, in eliciting appellant’s written statement, scrupulously honored her rights to remain silent and to an attorney. Cf. Calaway v. United States, D.C.App., 408 A.2d 1220 (1979) (confession voluntary when, following an invocation of his right to an attorney and the police having immediately ceased their questioning, appellant initiated questioning about the offense and, in the face of four recitals of his Miranda warnings, gave a seven or eight minute long statement); In re W.B.W., D.C. App., 397 A.2d 143 (1979) (confession voluntary when youthful appellant who had been previously arrested, apprised of rights and had benefit of counsel and had earlier refused to answer questions, reinitiated the discussion concerning the crime and reexe-cuted a PD 47 card before questioning resumed).

We also conclude that appellant’s action or lack of action at the Homicide Bureau did not amount to an intentional relinquishment or abandonment of a known right or privilege for Fifth Amendment purposes and that the statements should have been suppressed. Wilson v. United States, supra at 30; United States v. Alexander, supra at 52. See Edwards v. Arizona, supra 451 U.S. at 484, 101 S.Ct. at 1884 (“when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights” (footnote omitted)).

Reversed.

1 . In light of our disposition on Miranda grounds, we need not consider appellant’s other bases for appeal — whether the trial court erred in excluding expert testimony with respect to appellant’s mental retardation and its effect on her demeanor as a witness and whether sufficient evidence was presented at trial to support her conviction.

2 . Officer Maldonado testified that cigarettes were provided to appellant and that, while appellant grew progressively more nervous as the evening wore on, she was still not as nervous as others she had arrested.

3 . The handcuff was later removed from appellant’s wrist.

4 .Detective Aduddell testified that he did not discover that appellant had earlier declined to answer questions until the day before the suppression hearing.

5 . The government contends that appellant, despite responding “No” on a PD 47 card when asked whether she was willing to answer questions without an attorney present, did not effectively invoke her Miranda right to an attorney because she did not additionally orally invoke her right. See Edwards v. Arizona, 451 U.S. 477, 484-85, 101 S.Ct. 1880, 1884-1885, 68 L.Ed.2d 378 (1981) (“the Court has strongly indicated that additional safeguards are necessary when the accused asks for counsel”); Rhode Island v. Innis, 446 U.S. 291, 294, 298, 100 S.Ct. 1682, 1686, 1688, 64 L.Ed.2d 297 (1980) (respondent “invoked his Miranda right to counsel when he [said] he wished to consult with a lawyer”); Michigan v. Mosley, supra, 423 U.S. at 104 n. 10, 96 S.Ct. at 326 n. 10 (quoted language from Miranda for the proposition that “ ‘the interrogation must cease until an attorney is present’ ” only “ ‘[i]f the individual states that he wants an attorney.’ ”).

While in these cases the suspects did orally invoke their right to counsel, we do not read them as mandating a separate oral request for counsel as a precondition for an effective invocation of Miranda rights. To do so would render the PD 47 card and the questions thereon merely a notice of potential rights and the answers and signatures thereon virtual nullities. See United States v. Alexander, supra at 45 (appellee effectively invoked her right to an attorney by answering “No” to the last question on a PD 47 form — “Are you willing to answer any questions without a lawyer present?”).