Ruffin v. United States

524 A.2d 685, 1987 D.C. App. LEXIS 331

• Court: District of Columbia Court of Appeals
• Decided: April 16, 1987
• Docket: 83-640, 83-733
• Status: Published

Opinions

PER CURIAM:

A jury convicted appellant Ruffin of second degree murder, D.C.Code § 22-2403 (1981), and mayhem, D.C.Code § 22-506 (1981), and convicted his co-defendant, appellant Shaw, as an accessory after the fact to simple assault, D.C.Code § 22-106 (1981). The trial court sentenced Ruffin to concurrent sentences of ten years to life in prison for the murder and of three to nine years for the mayhem. It imposed on Shaw a prison sentence of six months.

Ruffin appeals the denial of his pretrial motions (1) to dismiss the indictment on speedy trial grounds, based on the 33 months between his arraignment and trial, and (2) to suppress oral and written statements, as well as physical evidence, allegedly obtained in violation of the fourth and fifth amendments. He also asserts that (3) the mayhem and second-degree murder convictions merged, requiring vacation of the mayhem conviction, and (4) the trial court erred in refusing to instruct the jury on the lesser-included offense of involuntary manslaughter.

We reject Ruffin’s arguments save two. The government concedes, and we agree, that on this record the mayhem merged into the second degree murder, since a single injury produced both a permanent disability and death. Thus, Ruffin’s mayhem conviction must be vacated. We also agree with Ruffin that the police obtained his written statement in violation of the fifth amendment right to counsel. We conclude, however, that this constitutional violation was harmless beyond a reasonable doubt because the written statement was cumulative of Ruffin’s admissible oral statement and of other evidence impeaching his testimony. Moreover, the evidence against Ruffin was overwhelming. Accordingly, we affirm Ruffin’s conviction for second-degree murder.

Shaw attacks (1) the sufficiency of the evidence sustaining his conviction as an accessory after the fact. He also argues that (2) the trial court abused its discretion in refusing to order disclosure of portions of statements of three government witnesses under the Jencks Act, 18 U.S.C. § 3500 (1982), and (3) the court’s instruction to the jury that the defendant has a vital interest in the outcome of the trial was prejudicial. None of Shaw’s arguments has merit; thus, his conviction as an accessory after the fact to simple assault is affirmed.

I. FACTS AND PROCEEDINGS

Following a party on the night of February 2, 1980, appellant Ruffin’s sister accepted a ride home from Clifford Wilson. Ruffin, who had attended the party, returned to his mother’s house. When he arrived, he was advised that his sister had been raped. He drove to his sister’s apartment, found her crying, and then searched the building. He found Wilson on the second-floor landing above the sister’s apartment. Wilson, following his encounter with Ruffin, was left in an unconscious or semi-conscious state. He subsequently died. At trial, Ruffin admitted he struck Wilson but did so in self-defense.

Appellant James Shaw, a police officer on administrative leave who was a friend of Ruffin, arrived on the scene and called the police. According to the testimony of several witnesses, Shaw told Ruffin not to talk to the police and also advised Ruffin to wipe the blood from his shoes. Shaw said he would handle the problem by telling the police that Wilson’s injuries were caused in the course of his apprehension by Shaw. Six police officers testified that Shaw told them he had struck Wilson in self-defense during a struggle following a rape. Shaw also told one officer that Wilson’s injuries had resulted from a fall in which Wilson had struck his head against the wall.

The police transported several witnesses from the scene to the homicide office to give statements, but that group did not include Ruffin. Later, on the morning of February 3, the police decided to question Ruffin, but, as the government.concedes, there was no probable cause to arrest him at that time. Instead, Detective Hosea Dyson telephoned Ruffin and told him the police wanted to interview him. Dyson arranged to have Ruffin picked up at his sister’s home by Officer James Brown at around noon that day.

At some time between 1:00 and 2:00 p.m., Dyson brought Ruffin to an interrogation room in the homicide office where Dyson told him he was not under arrest and read him his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Ruffin did not sign a waiver of those rights at that time. He did, however, give an oral statement to Dyson, admitting that he had assaulted Wilson but maintaining that he had done so in self-defense. Dyson then called in Detective Clarence Muse, who, beginning at 2:30 p.m., took a written statement after Ruffin had signed a waiver of Miranda rights. The written statement was completed at 3:48 p.m. The police then took Ruffin’s trousers and shoes for examination. Ruffin left the police station at about 6:00 p.m., after the arrival of a relative who brought Ruffin a change of clothes.

Ruffin later was charged with the murder of Wilson. Before trial, he moved to suppress his oral and written statements to the police, as well as the physical evidence (clothing), as the fruits of unlawful seizures under the fourth amendment. He also moved to suppress the statements on the ground they had been obtained in violation of his fifth amendment rights under Miranda. The trial court denied the suppression motion. The court also denied Ruffin’s motion to dismiss the indictment based on an asserted violation of his sixth amendment right to a speedy trial by virtue of the 33 months between arraignment and trial.

II. RUFFIN: SPEEDY TRIAL

Ruffin has established a prima facie case of a speedy trial violation: 33 months between arraignment and trial. See, e.g., Miller v. United States, 479 A.2d 862, 865-66 (D.C.1984) (delay of more than one year creates a prima facie case of violation). The burden has therefore shifted to the government to rebut that showing. Tribble v. United States, 447 A.2d 766, 768 (D.C.1982). We employ in our analysis the factors addressed in Barker v. Wingo, 407 U.S. 514, 530-32, 92 S.Ct. 2182, 2191-93, 33 L.Ed.2d 101 (1972).

Having noted the length of the delay, we next must determine reasons for that delay. Approximately seven and one-half months were directly attributable to continuances requested by Ruffin. None of this time is chargeable to the government. Another four months were the result of continuances obtained by Ruffin’s codefendant, Shaw. The government bears some responsibility for the delay of Ruffin’s trial attributable to the continuances requested by Shaw, in light of the fact the government chose to try the two defendants jointly. See Gaffney v. United States, 421 A.2d 924, 928 (D.C.1980), cert. denied, 451 U.S. 941, 101 S.Ct. 2026, 68 L.Ed.2d 330 (1981). Nevertheless, in light of the policy considerations favoring join-der, this responsibility does not weigh heavily against the government. Adams v. United States, 466 A.2d 439, 444-45 (D.C. 1983). This is especially true where, as here, Ruffin failed to object to any of the continuances his codefendant requested. Another nine months are attributable either to the unavailability, on four occasions, of the trial judge, or to other “normal” delay unavoidable in a criminal case. This nine months is attributable to the government but carries little weight. White v. United States, 484 A.2d 553, 558 (D.C.1984). The government did request one continuance, made necessary because several witnesses under subpoena failed to appear. This continuance resulted in a delay of three months, which is directly chargeable to the government. Since this delay was not a “deliberate attempt to delay the trial in order to hamper the defense,” however, but is “a valid reason, [i.e.] missing witnesses], [which] should serve to justify appropriate delay,” it is not given great weight. Barker, 407 U.S. at 531, 92 S.Ct. at 2192. In sum, approximately 25V2 months of the 33 were attributable to the government, but the reasons were typical of a congested criminal court calendar, in the context of a joint trial, and thus reveal nothing extraordinary.

We next determine whether there has been prejudice to the defendant from the delay. Since Ruffin remained on personal recognizance until he failed to appear for trial on February 1, 1983 (trial then recommenced on March 14, 1983), he did not suffer the “oppressive pretrial incarceration” that the speedy trial right is designed, in part, to avoid. Reed v. United States, 383 A.2d 316, 320 (D.C.), cert. denied, 439 U.S. 871, 99 S.Ct. 203, 58 L.Ed.2d 183 (1978). A speedy trial will also minimize two other types of prejudice that may result from delay: the possibility that the defense will be impaired as a result of the lapse of time and the accused’s anxiety attributable to the delay. Ruffin has not alleged that his defense was in any way impaired, and “the absence of this most serious form of prejudice weighs heavily in our determination of whether appellant was deprived of his [speedy trial] right.” Graves v. United States, 490 A.2d 1086, 1103 (D.C.1984) (en banc), cert. denied, — U.S. -, 106 S.Ct. 814, 88 L.Ed.2d 788 (1986). For the first time on appeal, counsel asserts that Ruffin suffered anxiety as a result of the delay. If Ruffin did suffer anxiety, it is not manifested on this record, especially because he did not file a speedy trial motion at any point during the 33 months between arraignment and trial.

This leads to consideration of the final Barker factor: Ruffin never asserted his speedy trial right before the day of trial. Indeed, he never opposed any of the continuances requested by the government, the court, or his co-defendant, Shaw. Ruffin himself requested four continuances. We agree with the government that the record demonstrates a complete absence of any indication of a desire for a speedy trial.

In light of this lack of the assertion of the right, the minimal prejudice to the defendant, and the fact that the bulk of the delay attributable to the government is “neutral” bureaucratic delay, we perceive no speedy trial violation in this case. We therefore proceed to consider the grounds urged for a new trial.

III. RUFFIN: ORAL STATEMENT

Ruffin contends that his oral statement to the police (he had “stomp-kick[ed]” the deceased in self-defense)¹ was suppressible on both fourth and fifth amendment grounds. We conclude the trial court did not err in refusing to suppress Ruffin’s oral statement. In reaching this result, we have examined whether the record supports the trial court’s conclusions that the government carried its burden of proving Ruffin (1) voluntarily went to the police station for questioning, in which case there was no fourth amendment violation, and (2) gave an oral statement while not in custody, in which case there was no fifth amendment violation.

A. Fourth Amendment Inquiry

In taking a close look at the evidence to determine whether Ruffin went with the officers to the police station as a volunteer or as a captive, one is struck, initially, by how elusive the answer to that question is. This is not as compelling a case for reversal as others where the fourth amendment has been violated. E.g., Hayes v. Florida, 470 U.S. 811, 812, 105 S.Ct. 1643, 1645, 84 L.Ed.2d 705 (1985) (suspect transported “to the station house for fingerprinting, without his consent and without probable cause or prior judicial authorization”); Dunaway v. New York, 442 U.S. 200, 203, 99 S.Ct. 2248, 2251, 60 L.Ed.2d 824 (1979) (detectives ordered simply “to ‘pick-up’ petitioner and ‘bring him in.’”); United States v. Allen, 436 A.2d 1303, 1309 (D.C.1981) (suspect frisked and told “ ‘you have to come to homicide with us’ ”).² On the other hand, the evidence of Ruffin’s voluntary compliance with the police request is less convincing than in other cases where police actions have survived a fourth amendment challenge. E.g., United States v. Mendenhall, 446 U.S. 544, 547-48, 557-58, 100 S.Ct. 1870, 1873-74, 1878-79, 64 L.Ed.2d 497 (1980) (federal agent “simply asked,” without threats or show of force, if suspect would accompany him to office for further questions, and suspect did so without resistance); Giles v. United States, 400 A.2d 1051, 1052 (D.C.1979) (suspect responded by telephone to message from police and agreed to meet with them at police station).³ We therefore review the record of the suppression hearing in considerable detail to determine on what side of the fourth amendment line this case falls: consent or seizure.

1.

Initially, we note the approach the trial court must use to resolve this issue, as well as the standard of review this court must apply to the trial court’s decision. According to the Supreme Court in Mendenhall, 446 U.S. at 557, 100 S.Ct. at 1879:

The question whether the respondent’s consent to accompany the agents was in fact voluntary or was the product of duress or coercion, express or implied, is to be determined by the totality of all the circumstances, Schneckloth v. Bustamonte, 412 U.S. [218, 227, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)], and is a matter which the Government has the burden of proving. Id. at 222, [93 S.Ct. at 2045], citing Bumper v. North Carolina, 391 U.S. 543, 548 [88 S.Ct. 1788, 1791, 20 L.Ed.2d 797 (1986)].

In applying this approach to the present case, the trial court confronted a significant difference from Mendenhall: Ms. Mendenhall did not testify at the supression hearing; Ruffin did. Accordingly, in contrast with Mendenhall, where only the government’s evidence was under scrutiny, the trial court confronted the question whether the government carried its burden of proving voluntariness when, at the suppression hearing, there was sharply conflicting testimony about why Ruffin had agreed to go to police headquarters.⁴

Although we are bound to accept the trial court’s resolution of conflicting testimony, United States v. Alexander, 428 A.2d 42, 49-50 (D.C.1981), the ultimate question — whether Ruffin’s actions in accompanying the police to the precinct were voluntary — is one of law for this court to decide on the record. United States v. Gayden, 492 A.2d 868, 872 (D.C.1985); cf. Miller v. Fenton, 474 U.S. 104, 106 S.Ct. 445, 450-51, 88 L.Ed.2d 405 (1985) (voluntariness of confession is legal question, not issue of fact presumed, under statute, to be correct in federal habeas corpus proceeding).⁵ We therefore owe no deference to the trial court’s ultimate conclusion that Ruffin voluntarily accompanied the officers to the precinct.

2.

We turn to the evidence. In the government’s case in chief at the suppression hearing, Detective Dyson testified that he had “called [Ruffin’s] home address and asked him to come down to the office in reference to our investigation.” The prosecutor then inquired, “And did he do so voluntarily?” Dyson replied, “Yes, sir.” Dyson, therefore, did not report Ruffin’s response as such; he merely testified as to his own opinion that Ruffin had come voluntarily.⁶ When asked on cross-examination whether “Ruffin was brought to headquarters in handcuffs,” Dyson answered, “Not to my knowledge.” The government then called Detective Clarence Muse, who recounted what had happened after he had seen Ruffin in the interview room, after the oral statement to Dyson. Muse stated on cross-examination that he was unsure whether Ruffin had been handcuffed — “he could have been” — and then testified about taking Ruffin’s written statement.

Although he could have done so, Ruffin did not ask for a ruling after Dyson and Muse had testified. Instead, he took the stand and testified that the police had “called my sister’s house and stated that they put out a bench warrant for my arrest and that I should give myself up. And I stated that I would come down to the station, and they stated they would send a police car after me. And they sent the police car to my [other] sister’s house and two policemen handcuffed me and took me down to homicide division.”

On cross-examination, the prosecutor elicited from Ruffin, initially, that a police officer had spoken over the phone only to Ruffin’s sister, not to Ruffin, and that this sister was the one who had told him a bench warrant had issued for his arrest.

Q. And somebody from homicide called you [at your sister’s home]?

A. They called her and told her that it was—

Q. Well, did they speak to you? Did you speak to anybody on the phone? A. No sir.

Q. So that anything that you testified to before [about the bench warrant] was what you say your sister told you?

A. Yes sir. [Emphasis added].

Ruffin’s next response, however, indicated — as he had on direct examination— that Ruffin himself had spoken with the police before being picked up for the trip to the police station.

Q. And after you got this telephone call somebody came to pick you up?

A. No sir.

Q. Well, what happened then?

A. Well, they said they were — would send a scout car. I said I would come down to the precinct. They said, no, they would send a scout car for me. So they sent the scout car to the scene of the incident. I met them back at my [other] sister’s house.

******

Q. Did you tell them that you would meet them there?

A. Yes, sir.

Q. You made arrangements to meet them there?

A. They made arrangements to meet me there.

[Emphasis added.]

Ruffin acknowledged that he had been at his sister’s house when the police “first called” there, arguably implying — contrary to his initial answer on cross-examination— that Ruffin had spoken with a police officer at that time. Ruffin also acknowledged that he could have asked his sister to testify in order to clarify the situation, but did not. On the other hand, Ruffin’s testimony on direct and cross-examination, taken as a whole, was arguably not internally inconsistent. He may have meant that he had not spoken with Dyson when Dyson called the first time about the warrant — that he had personally spoken with the police only when responding to a phone call “after” the first one.⁷ Moreover, Detective Dyson had not expressly stated that he had made only one telephone call to solicit Ruffin’s cooperation.⁸ Nor did the prosecutor attempt to find out, during cross-examination, whether Ruffin could explain his possible inconsistency about personally speaking with the police or whether Ruffin had discussed the supposed warrant with Dyson or any other police officer.

Accordingly, Dyson’s and Ruffin’s testimony to this point, taken together, was inconclusive. There are at least two plausible interpretations: (1) two telephone conversations had taken place — Dyson or some other police officer with Ruffin’s sister about a bench warrant, followed by Dyson or some other officer with Ruffin making arrangements for a trip to headquarters— or (2) only one conversation had taken place, between Dyson and Ruffin, in which case Ruffin's testimony about his sister’s reference to a bench warrant would have been a lie. See also supra note 7.

From the transcript itself, neither interpretation of the Dyson-Ruffin testimony is compelling. Moreover, Ruffin did specifically articulate circumstances — a threat of arrest — which caused him to feel constrained to surrender for questioning. Ruffin’s testimony, if believed, thus tended to rebut whatever inference of voluntary consent could legitimately be attributed to Dyson’s generalized opinion testimony. Dyson had not testified as to Ruffin’s verbal response at the time of the police request; nor had Dyson testified that Ruffin, in any way, had manifested an understanding he was free to say no and thus was accompanying the police voluntarily. Dyson, therefore, provided no factual basis for disbelieving Ruffin’s testimony. Nor did the prosecutor probe Ruffin deeply enough on cross-examination to establish, to a reasonable certainty, that Ruffin had testified inconsistently. By the time Ruf-fin completed his testimony, therefore, the evidence arguably was in equipoise, with the burden of production as to voluntariness thus shifting back to the government.

In rebuttal, Officer Williams testified that she had gone to pick up Ruffin and, at that time, had asked him “if he would go down with us because they wanted to talk to him at homicide branch.” Like Dyson, she did not mention Ruffin’s response. Instead, she merely added that Ruffin was not placed under arrest or handcuffed. She did not testify that she had told Ruffin he was not under arrest.

Also in rebuttal, Officer Brown, who had driven Ruffin to headquarters, testified that “[apparently someone at the Homicide Branch had in fact talked to Mr. Ruf-fin and apparently he was voluntarily coming down.” Brown further testified that he had been asked to inquire whether Ruf-fin was “willing to voluntarily go down to the Homicide Branch.” Like Dyson and Williams, however, Brown did not report Ruffin’s response; at most, he provided vague, question-begging hearsay confirmation that Ruffin “apparently” was willing to come to headquarters voluntarily. Furthermore, like Williams, Brown added that Ruffin was not under arrest and that he had no reason to handcuff Ruffin. But also, like Williams, Brown did not testify that he had told Ruffin he was not under arrest. Brown further testified that he would have let Ruffin out of the squad car if Ruffin had asked to leave. But Brown did not testify that he had told Ruffin he was free to decline to come along or was free to change his mind and leave the car before arriving at headquarters.

In sum, the government established through its own witnesses — at most — that the police had asked, not told, Ruffin to come to headquarters; that Ruffin had done so without a fuss; that one or more officers believed Ruffin had done so voluntarily; that Ruffin had not been handcuffed; that the officers had not considered Ruffin to be under arrest (although no one had told him he was not); and that Ruffin could have asked to leave the squad car without consequence before he arrived for questioning (although no one had told him he could do so). None of the police officers, however, was examined or cross-examined about what Ruffin had said, if anything, when asked to go voluntarily to the police station. Moreover, the prosecutor did not recall Detective Dyson or call any other officer explicitly to rebut Ruf-fin’s testimony that he had gone with the police because he had learned from his sister (who had learned from Dyson or some other officer) that an arrest warrant had issued — testimony reflecting the non-consensual mind set the Supreme Court recognized in Haynes.⁹ On the other hand, Ruffin appeared to have given inconsistent testimony during cross-examination, at first denying and then acknowledging he had spoken with a police officer. Defense counsel did not attempt on redirect to reconcile these statements. Nor did Ruffin call his sister to the stand to clarify and buttress his testimony.

The trial court, altogether disbelieving Ruffin, denied the motion to suppress. In commenting on Ruffin’s testimony describing what transpired from his transportation to the precinct until his release at 6:00 p.m. the same day, the court stated:

The Court does not credit the defendant’s version of the facts. They are inherently ... incredible. They just don’t logically follow. The Court finds as a matter of law he was not arrested. I distinguish the Allen case where he was frisked, he was constantly guarded. He was although given a ride downtown. The Court does not credit the fact that he was in handcuffs at any time, was permitted to leave. Clearly not custodial at all under Oregon v. Mathiason....

3.

In evaluating the trial court’s ruling, we must decide whether the trial court, on this record, could legitimately credit the government’s witnesses, altogether disbelieve Ruffin’s “bench warrant” testimony, and thereby conclude that the government had sustained its burden of proving voluntary consent.¹⁰

Particularly important to the analysis is an awareness that, although the question of voluntariness is ultimately one of law for this court, that question turns, in this case, on a factual finding as to whether the police told Ruffin they had issued a bench warrant for his arrest. If the trial court had credited Ruffin’s statement about the bench warrant, it could not have concluded that he voluntarily had accompanied the police officers to the precinct. See supra note 9. One the other hand, by altogether disbelieving Ruffin’s bench warrant testimony, the way was clear for the court to find on the basis of police evidence alone that Ruffin had accompanied the police voluntarily. Thus, we are dealing, fundamentally, with the question whether the trial court’s finding that Ruffin’s bench warrant testimony was inherently incredible is entitled to deference — leading to an appellate court conclusion that Ruffin voluntarily had gone to the police station — even though the government was clearly in a position, but failed, to impeach or otherwise refute Ruffin’s testimony with direct evidence.

Initially, we note that the Supreme Court’s decisions in Dunaway and Men-denhall are not determinative. In each, the facts were undisputed; neither decision concerned review of a trial court’s factual findings. Our dissenting colleague argues that the facts in Dunaway are “nearly identical” to those here. Infra at 713. The key distinction the dissent fails to note, however, is that in Dunaway the trial court apparently credited the defendant’s factual account of what had taken place as a predicate for its legal conclusion that the police had detained him involuntarily. 442 U.S. at 207 n. 6, 99 S.Ct. at 2253 n. 6. Here, in contrast, the trial court found appellant’s factual presentation incredible while finding the government’s evidence of voluntary consent persuasive. This case, therefore, is not “nearly identical” to Dun-away if appellant’s testimony does not prevail.

Nor is Mendenhall dispositive. Noting that “[t]he material facts are not disputed,” 446 U.S. at 552 n. 5, 100 S.Ct. at 1876 n. 5, the Supreme Court sustained the trial court’s determination of voluntary consent. The court stressed “the respondent was not told that she had to go to the office, but was simply asked if she would accompany the officers” for further questioning. "There were neither threats nor any show of force.” 446 U.S. at 557-58, 100 S.Ct. at 1879. In response, “[s]he did so, although the record does not indicate a verbal response to the request.” 446 U.S. at 548, 100 S.Ct. at 1874.¹¹ In the present case, therefore, if the police testimony alone had reflected the “totality of all the circumstances,” 446 U.S. at 557, 100 S.Ct. at 1879, Mendenhall would justify a determination of voluntary consent; without regard to Ruffin’s testimony, the two cases are similar.

It is useful to note, however, that the four dissenting Justices in Mendenhall stressed that “Ms. Mendenhall did not testify at the suppression hearing and the officers presented no testimony concerning what she said, if anything, when informed that the officers wanted her to come with them to the DEA office.” 446 U.S. at 576, 100 S.Ct. at 1888 (White, J., dissenting). It follows, said the dissenters, “[o]n the record before us, the Court’s conclusion can only be based on the notion that consent can be assumed from the absence of proof that a suspect resisted police authority. This is a notion that we have squarely rejected.” 446 U.S. at 577, 100 S.Ct. at 1888 (White, J., dissenting). While the Court majority in Mendenhall did not specifically eschew this generalized interpretation of its holding, the majority did note, in evaluating the evidence, that “[t]he respondent herself did not testify at the hearing.” 446 U.S. at 557, 100 S.Ct. at 1879. The Court thus made clear that its ruling was limited to evaluating the uncontradicted implications of the police testimony itself, as well as the circumstantial factors.¹²

The question, then, is whether the trial court can reject the testimony of a defendant who, as in Dunaway, asserts coercion, and then find voluntary consent on the basis of the police testimony and circumstantial factors, as in Mendenhall, as though the defendant had not taken the stand (or, perhaps more significantly, had taken the stand and lied). We begin with Staton v. United States, 466 A.2d 1245 (D.C.1983), where the defendant, on appeal from the denial of a motion to suppress, challenged on fifth amendment grounds the trial court’s ruling that his confession had been voluntary. We rejected the argument that “the trial court was required to credit his unrebutted testimony concerning coercive police utterances.” 466 A.2d at 1251. We stated that “[t]he trier need not believe the testimony of a witness even though the witness’ testimony is uncontra-dicted [citations omitted], particularly where the witness has a personal interest in the result.” 466 A.2d at 1252. We added, however, that “appellant’s allegations [of coercive police tactics], if true, raise grave questions about the voluntariness of his confession.” Id. Accordingly, we said, although the “trial court ordinarily ‘need not make formal findings of fact or write an opinion’ when ruling upon such motions to suppress,” id. at 1253 (quoting Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967)), “the trial court’s determination ‘must be reliable and clear-cut and [its] conclusion that the confession is in fact voluntary must appear from the record with unmistakable clarity.’ ” Id. (quoting Wells v. United States, 407 A.2d 1081, 1089 (D.C.1979)). Because it was not clear in Staton “whether the trial court concluded that (1) appellant’s uncorroborated testimony concerning coercion was incredible, although unrebutted, or (2) some or all of the coercive statements were in fact made, but given the totality of the circumstances, did not render appellant’s statements involuntary,” id., we remanded the record for further findings and for an explanation of how the trial court had reached its conclusion, in order that we could afford meaningful review. In the present case, however, it is clear that the trial court credited the police testimony and altogether rejected Ruffin’s uncorroborated “bench warrant” testimony as “inherently incredible.” Thus, no remand is necessary to ascertain the basis for the court’s ruling.

Staton, however, should not be read so broadly as to stand for the proposition that, under all circumstances, a trial judge may disregard a defendant’s uncontradicted testimony. For example, in Haynes v. Washington, 373 U.S. 503, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963), the Supreme Court held a confession involuntary as a matter of law where (before the Miranda decision) (1) the defendant was not advised “of his right to remain silent, warned that his answers might be used against him, or told of his rights respecting consultation with an attorney,” 373 U.S. at 511, 83 S.Ct. at 1341; (2) the written confession itself contained a reference to coercive tactics (a form of corroboration of the defendant’s testimony to that effect), 373 U.S. at 512, 83 S.Ct. at 1342; and, of considerable significance, (3) the allegedly overreaching officers, who were in court and heard the defendant’s testimony, did not deny the accusations. 373 U.S. at 509-10, 83 S.Ct. at 1340-41. Under these circumstances, as a matter of law the confession could not have been voluntary, even though the trier of fact may have disbelieved the defendant.

In contrast, in Staton — also a coerced confession case — the defendant “was repeatedly given Miranda warnings,” 466 A.2d at 1252, and there was absolutely no corroboration of the defendant’s claim of coercive police tactics. Further distinguishing Haynes, this court pointed out that the “tenor” of police testimony implied the defendant had given a voluntary statement, in contrast with the trial court’s apparent perception that the defendant’s self-serving testimony about coercive police tactics, although unimpeached and unrebut-ted, was incredible and thus altogether unworthy of serious consideration. See 466 A.2d at 1252.

The instant case is different from both Haynes and Staton in at least one significant respect: because we are considering voluntariness as it relates to accompanying police officers to the precinct station — a fourth amendment inquiry — in contrast with the voluntariness of giving the statement itself, Miranda warnings are not at issue.¹³ It is clear, however, that no government witness told Ruffin he was free not to go with the officers. Accordingly, whatever the implications of Staton for voluntariness analysis when a defendant’s inculpatory statement is at issue after Miranda warnings have been given, Sta-ton is not necessarily dispositive of cases, such as this one, where Miranda (or analogous) warnings are not part of the calculus.

Mendenhall and other cases, supra note 11, establish the proposition that, when there has not been a show of force by the police, a mature suspect’s voluntary consent to come to headquarters may be inferred merely from a police request followed by the suspect’s “acquiescence” if there is no evidence that the suspect resisted police authority or otherwise reasonably perceived he or she was, or would be, under arrest When, however, a testifying defendant does allege such coercion as the basis for accompanying the police to headquarters, the logic of Haynes would have a court “attribute significance to the failure of the State, after listening to the [defendant’s] direct and explicit testimony, to attempt to contradict that crucial evidence,” especially “in light of the availability and willing cooperation of the policemen who, if honestly able to do so, would have readily denied the defendant’s claims.” 373 U.S. at 510, 83 S.Ct. at 1341. This point is telling. We do not believe a trial court’s mere perception that a defendant’s unim-peached, though uncorroborated, testimony is incredible should be enough to defeat a claim of coercion to accompany the police to the precinct for questioning when (1) the government has the burden of persuasion, (2) there is no evidence either that the police have told the defendant he or she is free to decline the request, or that the defendant clearly understands he or she may do so, and (3) the prosecutor has not called available rebuttal witnesses to refute the defendant’s assertions.

We reach this conclusion for two reasons. First, a defendant usually will not be in a position to offer evidence directly corroborating alleged police coercion, for typically there will be no disinterested defense witness to the alleged police conduct. Thus, failure of corroboration should not be significant when, commonly, the defendant’s own word will be the only direct evidence of coercion available. Second, given the government's burden of persuasion, a trial court’s mere disbelief of the defendant should not be a conclusive basis for saving a circumstantial government case when it is clear to everyone that available police witnesses, in a position to discredit the defendant, have elected not to take the stand to do so. That failure of government witnesses to present direct evidence when there is no impediment to such testimony speaks more loudly to an appellate court reviewing a transcript — alert, as we must be, to the shifting burdens of evidentiary production — than does the weight of a trial court’s credibility determination altogether rejecting a witness’s testimony. The government’s unwillingness to put on rebuttal testimony is indirect but objective corroboration of the defendant’s story that an appellate court, ruling on voluntariness as a matter of law, cannot properly ignore in favor of a trial court’s subjective credibility finding.

4.

Accordingly, the final question is whether the prosecutor’s cross-examination of Ruffin, coupled with the police officers’ testimony in rebuttal, was sufficient impeachment and/or rebuttal of Ruffin’s bench warrant testimony to permit the trial court to disbelieve his claim and thereby compel a conclusion that he went to the police station voluntarily.

As noted earlier, when Ruffin completed his testimony the burden of production as to voluntariness shifted back to the government, since the prosecutor had not probed deeply enough on cross-examination to establish, by a preponderance of the evidence, that Ruffin had testified inconsistently about speaking with the police and thus had lied about the bench warrant. Obviously, Ruffin’s testimony created some doubt about his veracity but not enough to say, in fairness, that the government had carried its burden of persuasion without need for rebuttal.

This case is especially difficult because of inadequacies in the government’s rebuttal. Neither Williams’ nor Brown’s testimony directly refuted Ruffin’s testimony that he had felt compelled to accompany the officers because of his understanding that a bench warrant had been issued for his arrest. Nor was Detective Dyson recalled (or any other officer called) to discredit Ruffin’s assertion that he had learned from his sister (who allegedly had spoken with the police) that a bench warrant had been issued. Moreover, not one of the government’s three witnesses testified that Ruffin had been told he was not under arrest or had a choice in the matter. Finally, no officer testified that Ruffin had indicated an understanding he was free to decline the police request.¹⁴ Accordingly, despite Ruffin’s “bench warrant” testimony — and despite the officers’ own knowledge of what Ruffin had said to them and of what the police had, or had not, said to Ruffin’s sister — all the officers left out a vital testimonial link between the police requests and Ruffin’s willingness to accompany them.¹⁵

There was, however, a direct clash between Ruffin’s and the police officers’ testimony about whether Ruffin had been handcuffed during his trip to the police station. Consistent with his testimony about a bench warrant, Ruffin said he had been handcuffed; Officers Brown and Williams testified that he had not.¹⁶ The trial court believed the police, expressly stating that “the Court does not credit the fact that [Ruffin] was in handcuffs at any time.” Although the absence of handcuffs would not necessarily imply that Ruffin had not been told about a bench warrant for his arrest, the trial court’s finding of no handcuffs (a typical arrest procedure) suggests not only that Ruffin was not under arrest but also that his lying about handcuffs cast doubt on the very premise of his coercion testimony: that he had heard from the police through his sister about an arrest warrant.

The trial court, therefore, reasonably could have concluded on the basis of the government’s rebuttal of Ruffin’s handcuffs testimony, coupled with the apparent inconsistencies in Ruffin’s own testimony about talking with the police, that the bench warrant story was a lie. Whereas neither Ruffin’s cross-examination nor the government’s rebuttal was enough in itself to refute Ruffin’s bench warrant testimony, they were enough taken together to permit the inference that Ruffin had lied. Thus, the trial court had a reasonable basis for disbelieving Ruffin’s factual allegations concerning the bench warrant. Accordingly, applying the analysis in Menden-hall to the other facts legitimately found by the trial court — the police testimony by Dyson, Brown, and Williams, combined with no credible contrary assertions — we must conclude that Ruffin accompanied the police to the precinct voluntarily.

B. Fifth Amendment Inquiry

Once at headquaters, Ruffin was ushered into an interrogation room. Detective Dyson testified that he had told Ruffin he was not under arrest and had read Ruffin his Miranda rights. Dyson further testified that, in response to a question, Ruffin had answered he was “willing to talk” and then had made an oral statement acknowledging he had “stomp kick[ed]” the deceased — in self-defense.

The trial court concluded that Ruffin was never in custody and thus had given all statements voluntarily. We disagree with that broad conclusion; we believe that Ruf-fin, as a matter of law, was in custody as of the time Detective Muse gave the second Miranda warnings and began to elicit Ruf-fin’s written statement. Infra Part IV. A. On the other hand, we agree with the trial court that Ruffin voluntarily came to the police station. The question, then, is whether Ruffin remained a volunteer at the time he gave his oral statement or instead had become subject to custodial interrogation, giving rise to Miranda rights.

“The analysis is essentially the same for determining whether one is ‘in custody’ ” for fifth amendment purposes “or has been ‘seized’ or ‘illegally detained’ ” under the fourth amendment. Gayden, 492 A.2d at 872 n. 8. Basically, the question is whether the police, by words or conduct, including a show of authority, have manifested to a suspect that he or she is not free to leave. E.g., United States v. Barnes, 496 A.2d 1040, 1045 (D.C.1985) (fourth amendment); Calaway v. United States, 408 A.2d 1220, 1224 (D.C.1979) (fifth amendment). On this record, Ruffin’s voluntary presence at the police station implied his voluntary consent to make the oral statement, which he did almost immediately upon arrival. There had been no seizure of the person at the time and thus no custodial interrogation.¹⁷

Accordingly, we conclude the trial court did not err in refusing to suppress Ruffin’s oral statement to the police.

IV. RUFFIN: WRITTEN STATEMENT

We conclude the trial court erred, as a matter of law, in ruling that Ruffin was not in custody at the time he gave his written statement and thus erred in concluding that he gave the statement voluntarily.

A. Custodial Interrogation

There is no dispute that Ruffin gave his oral statement virtually as soon as he arrived at the homicide office, sometime after noon (Detective Muse “imagined” Ruffin arrived between 1:00 and 2:00). Then, as soon as Ruffin had given his oral statement, Detective Muse was called in to the interrogation room to take a written statement, which he recorded between 2:39 and 3:48 p.m.

When Ruffin had been ushered into the interrogation room, Detective Dyson had told him he was not under arrest. At no time thereafter, however, did a police officer tell him he was free to leave. Muse initially testified that Ruffin was not handcuffed, but, on cross-examination, he admitted he was unable to recall whether Ruffin was handcuffed to the desk in the interview room (as Ruffin himself had alleged), stating that he “could have been” because it was a policy, not always followed, to handcuff suspects. Advised of his Miranda rights, Ruffin asked Muse if he thought he (Ruffin) needed a lawyer. Muse replied, “[W]eII, if it is self-defense, you can answer questions, ... it would only clarify your part.” Ruffin then signed a written waiver of his Miranda rights, after which he gave the written statement.

Under these circumstances, whatever inferences should be drawn from the record as to Ruffin’s initial appearance at the homicide office, we must conclude that a reasonable person in Ruffin’s position could not have believed he or she was free to leave, see Calaway, supra, 408 A.2d at 1224, once he had given the inculpatory oral statement and Detective Muse was called in to take a written statement. The period of time which had elapsed, the virtually continuous interrogation, the inherently coercive atmosphere, the eliciting of a signed waiver of Miranda rights despite Ruffin’s announced concern that he might need a lawyer, and the lack of any indication to Ruffin that he was entitled to leave the stationhouse whenever he wished lead to a conclusion that Ruffin was “in custody” as the time he gave the written statement to Detective Muse.

B. Right to Counsel

We next consider the alleged violation of Ruffin’s fifth amendment right to counsel. See United States v. Alexander, 428 A.2d 42, 47 (D.C.1981). We conclude the trial court erred in ruling in the alternative that, even if Ruffin was in custody, he voluntarily waived his Miranda rights. The written statement, therefore, should have been suppressed.

Before taking the written statement, Muse advised Ruffin of his Miranda rights. According to Muse’s own testimony, Ruffin then asked “if I [Muse] thought he [Ruffin] needed a lawyer.” Muse responded, “[W]hy?” Ruffin replied, “[B]ecause of what [Muse] read” to him, i.e., his right to counsel. According to Muse, he then explained to Ruffin why counsel was not necessary:

[Y]ou said that ... it was self-defense [and you] didn’t have any reason not to answer questions because it was self-defense. And I said, well, if it is self-defense, you can answer questions, ... it would only clarify your part, what your statement is [in] reference to what took place.

Although he did not initial the written waiver of counsel found on the police department form, Ruffin did dictate a three-page statement following this colloquy with Muse, initialing each page and signing it.

The interchange between Ruffin and Muse presents an issue left unresolved by the Supreme Court in Smith v. Illinois, 469 U.S. 91, 95-96 & n. 3, 105 S.Ct. 490, 492-93 & n. 3, 83 L.Ed.2d 488 (1984) (per curiam): what is the effect of an ambiguous or equivocal request for counsel? In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Court fashioned a per se rule that an accused who has invoked the Fifth Amendment right to assistance of counsel cannot be subjected to additional custodial interrogation until either (1) counsel is furnished or (2) the accused, with knowledge of the right, knowingly and intelligently relinquishes it. 451 U.S. at 484-85, 101 S.Ct. at 1884-85. Although we have held that initiation by the accused of substantive discussion following an assertion of Miranda rights is a compelling factor in determining the existence of a valid waiver, Rogers v. United States, 483 A.2d 277, 285 (D.C.1984), cert. denied, 469 U.S. 1227, 105 S.Ct. 1223, 84 L.Ed.2d 363 (1985), the mere response by a suspect to additional questioning following an assertion of the right to counsel does not effect a waiver of the right, Edwards, 451 U.S. at 484, 101 S.Ct. at 1884.¹⁸ At issue here is whether, and to what extent, the Edwards rule applies in a case such as this, in which the request for counsel appears to be equivocal. As in every waiver case, the government has the burden of showing an intentional relinquishment or abandonment of the right, and we must indulge every reasonable presumption against waiver. Brewer v. Williams, 430 U.S. 387, 404, 97 S.Ct. 1232, 1242, 51 L.Ed.2d 424 (1977); Turner v. United States, 443 A.2d 542, 554 (D.C.1982); see Miranda, 384 U.S. at 486 n. 55, 86 S.Ct. at 1634 n. 55 (“the standard for waiver is necessarily high”).

As the Court noted in Smith, 469 U.S. at 96, n. 3, 105 S.Ct. at 493, n. 3, some courts have held that the Edwards’ per se rule requires that interrogation cease following any indication at all from the accused, however equivocal, that he or she might want counsel before continuing to answer questions. These courts have held that resolution of any ambiguity against the defendant would subvert the prophylactic intent of Miranda.19 For example, in People v. Superior Court of Mono County, 15 Cal.3d 729, 735-36, 125 Cal.Rptr. 798, 802-03, 542 P.2d 1390, 1394-95 (1975), cert. denied, 429 U.S. 816, 97 S.Ct. 58, 50 L.Ed.2d 76 (1976), the accused’s question to his interrogating officer, “Do you think we need an attorney,” was held to have required the cessation of questioning and the suppression of the statement that resulted from the continued interrogation of the accused. A similar result obtained in People v. Alexander, 79 Mich.App. 495, 261 N.W.2d 63, 64 (1977), cert. denied, 436 U.S. 958, 98 S.Ct. 3073, 57 L.Ed.2d 1123 (1978), where the defendant asked the interrogating officer whether he thought that she needed an attorney, and the officer responded that she should just tell the officer what had happened. See People v. Fish, 660 P.2d 505, 509 (Colo.1983) (“An ambiguous indication of an interest in having counsel requires cessation of police interrogation.”); Ochoa v. Texas, 573 S.W.2d 796, 800-801 (Tex.Crim.App.1978) (statement by accused that “he probably ought to talk to a lawyer” required cessation of questioning); People v. Lewis, 47 Mich.App. 450, 209 N.W.2d 450, 451 (1973) (inquiry by defendant as to whether an attorney was available at the late hour of the interrogation was a sufficient request); cf. United States v. Prestigiacomo, 504 F.Supp. 681, 683 (E.D.N.Y.1981) (statement by foreigner not fluent in English that “maybe it would be good to have a lawyer” was a sufficient request for counsel and required that interrogation cease).

Most courts have held, however, that there is also another permissible response to an equivocal request for counsel: a question, or series of questions, designed to clarify only whether the suspect does or does not want to consult with an attorney before continuing the interrogation. See, e.g., United States v. Cherry, 733 F.2d 1124, 1130 (5th Cir.1984); United States v. Riggs, 537 F.2d 1219, 1222 (4th Cir.1976); United States v. Chansriharaj, 446 F.Supp. 107, 109-110 (S.D.N.Y.1978); Giacomazzi v. State, 633 P.2d 218, 222 (Alaska 1981); State v. Acquin, 187 Conn. 647, 448 A.2d 163, 177 (1982), cert. denied, 463 U.S. 1229, 103 S.Ct. 3570, 77 L.Ed.2d 1411 (1983); State v. Moulds, 105 Idaho 880, 888, 673 P.2d 1074, 1082 (App.1983); State v. Wright, 97 N.J. 113, 477 A.2d 1265, 1268 (1984); State v. Cody, 293 N.W.2d 440, 446 (S.D.1980); State v. Robtoy, 98 Wash.2d 30, 653 P.2d 284, 290 (1982); Daniel v. State, 644 P.2d 172, 177 (Wyo.1982); State v. Smith, 588 S.W.2d 27, 31 (Mo.App.1979); State v. Smith, 34 Wash.App. 405, 661 P.2d 1001, 1002-03 (1983).

We believe that this latter, majority approach comports with the spirit of Edwards without unduly restricting the government’s investigative authority. Accordingly, we conclude that the appropriate response to an ambiguous or equivocal assertion of the right to counsel by an accused — typically, an indirect expression of interest in counsel — is a request by police interrogators for clarification. For example, in a case such as this, an appropiate response to the question, “Do you think I need a lawyer,” would be to inform the suspect that the decision is one for him or her to make, Smith, 661 P.2d at 1002-03, and to then ask for the decision.

Although this is one permissible response, it is not the only one possible; for, as the Court pointed out in Miranda, the investigating officer has discretion to determine whether the accused waives the right to counsel. 384 U.S. at 486 n. 55, 86 S.Ct. at 1634 n. 55. Nevertheless, a permissible response must seek clarification “without persuasion or inducement,” Moulds, 105 Idaho at 888, 673 P.2d at 1082, and “may not take the form of an argument between interrogators and suspect about whether having counsel would be in the suspect’s best interests.” Thompson v. Wainwright, 601 F.2d 768, 772 (5th Cir.1979). Nor may the limited inquiry permissible after an equivocal request “incorporate a presumption by the interrogator to tell the suspect what counsel’s advice to him [or her] would be if [counsel] were present. Such measures are foreign to the purpose of clarification, which is not to persuade but to discern.” Id.

Detective Muse’s response to Ruffin’s equivocal expression of interest in counsel was insufficient to protect Ruffin’s right to counsel under Edwards. Muse sought not to clarify whether Ruffin wanted an attorney but to persuade him that he did not need one. Muse presumed to give Ruffin legal advice: that no lawyer was necessary as long as “it was self-defense.” He implied that all Ruffin had to do was to tell his side of the story to clear up any misunderstanding, and that since he had acted in “self-defense” the events of the evening were not serious enough to warrant counsel.

The “right to advice of counsel surely is the right to advice from counsel, not from the interrogator,” Thompson, 601 F.2d at 772. Accordingly, we hold that on the facts of this case Ruffin was deprived of his Fifth Amendment right to counsel, and that the statement he subsequently gave in response to further interrogation, reduced to writing by Detective Muse, was therefore inadmissible at trial.

V. RUFFIN: PHYSICAL EVIDENCE

Once Ruffin had given his inculpatory oral statement, it became clear that he was not free to leave. The police said they wanted a second, written statement and, therefore, obtained a written waiver of Miranda rights, implying their own belief that Ruffin was now in custody. This time, too, Ruffin had been more attentive to the Miranda warnings, asking whether he needed a lawyer. He thereby implied his own belief he was not free to leave. Accordingly, we have concluded that at least by the time Detective Muse began to take Ruffin’s written statement, Ruffin was in custody for Fifth Amendment purposes.

All seizures claimed to violate the Fourth Amendment must be evaluated to determine whether a seizure was reasonable considering the opposing interests of the defendant’s right to privacy and the police officer’s duty to detect and prevent crime.²⁰ See Michigan v. Summers, supra, 452 U.S. at 697-98, 101 S.Ct. at 2591-92; Allen, supra, 436 A.2d at 1307. Even though the police took Ruffin’s pants and shoes after they violated his Miranda rights in obtaining his written statement, we conclude that the seizure was reasonable under the Fourth Amendment.²¹

After the police had taken Ruffin’s written statement, they took his trousers and shoes, apparently to check for blood samples. The trial court apparently denied the motion to suppress on the ground that Ruf-fin’s surrender of the clothing, like his making of statements, was altogether voluntary, not the result of a seizure. We reject that premise. Once Ruffin was in custody, for Fifth Amendment purposes, he had been seized for Fourth Amendment purposes. See Gayden, 492 A.2d at 872 n. 8; supra Part III. B.

Ruffin’s oral statement, in which he admitted striking and “stomp-kicking” the decedent, provided independent evidence to establish the probable cause necessary to justify the seizure.²² See Silverthorne Lumber Co. v. United States, 251 U.S. 385, 392, 40 S.Ct. 182, 183, 64 L.Ed. 319 (1920); Derrington, supra note 21, 488 A.2d at 1330. Where probable cause already exists, a carefully tailored search and seizure to prevent the destruction of readily destroyed evidence is deemed incident to a lawful arrest, even if the suspect has not been formally arrested.²³ Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 2564, 65 L.Ed.2d 633 (1980); Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 2004, 36 L.Ed.2d 900 (1973); Bailey v. United States, 128 U.S.App.D.C. 354, 357, 389 F.2d 305, 308 (1967); see Sibron v. New York, 392 U.S. 40, 66-67, 88 S.Ct. 1889, 1904-05, 20 L.Ed.2d 917 (1968). The police took Ruffin’s pants and shoes to examine them for traces of the decedent’s blood, skin and hair. They reasonably could anticipate that Ruffin would destroy this evidence if allowed to leave the homicide office with his clothing.²⁴ Compare Rawlings v. Kentucky, supra, 448 U.S. at 110-111, 100 S.Ct. at 2564-65 (money and knife); Cupp v. Murphy, supra, 412 U.S. at 296, 93 S.Ct. at 2004 (“highly evanescent evidence” of fingernail samples); Sibron v. New York, supra, 392 U.S. at 49, 66, 88 S.Ct. at 1895, 1904 (in course of limited weapons’ search, burglary tools seized as potential instrument of crime of burglary); Bailey, supra, 128 U.S.App.D,C. at 357, 389 F.2d at 308 (wallet on floor in car stopped by police).

VI. RUFFIN: HARMLESS ERROR

Since Ruffin’s oral statement and clothes could properly be introduced in evidence against him, the question is whether the violation of his Fifth Amendment rights in obtaining his written statement was harmless beyond a reasonable doubt. Derrington, supra note 21, 488 A.2d at 1330; Lewis v. United States, 483 A.2d 1125 (D.C.1984) (error in admitting voluntary statement obtained in violation of Miranda held to be harmless beyond a reasonable doubt since substance of statement was presented to jury through other, untainted testimony); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) (harmless beyond a reasonable doubt to admit statements deliberately elicited after Sixth Amendment right to counsel had attached); Miley v. United States, 477 A.2d 720, 724 (D.C.1984) (improper admission of statement obtained during custodial interrogation harmless beyond a reasonable doubt). Upon review of the trial transcript, we conclude there was not “a reasonable possibility” that the written statement might have contributed to Ruffin’s convictions. Chapman v. California, supra, 386 U.S. at 23, 87 S.Ct. at 827 (quoting Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1963)).

The government’s evidence against Ruffin was overwhelming without the written statement. It included the testimony of Ruffin’s close friend, Donald Mitchell, who saw Ruffin repeatedly “stomping” Wilson in the face with his booted foot. Mitchell testified that he had seen Ruffin run out of his sister’s apartment to look for Wilson after finding his sister crying and hysterical and being told Wilson had raped her and was still in the building. Mitchell had followed in search of Ruffin after others at the apartment told him to find Ruf-fin, and heard scuffling above as he left the apartment. He went upstairs and saw Ruffin “stomping” Wilson. Mitchell was permitted to demonstrate for the jury how Ruffin had kicked Wilson. Mitchell also testified that he had to grab Ruffin and pull him away, that there was a lot of blood around Wilson’s head, and that Wilson was semiconscious. In addition, Mitchell testified that Shaw told Ruffin not to say anything when the police arrived, to wipe the blood off his shoes, and that he [Shaw] had apprehended the suspect and would take care of everything. Mitchell also testified, after Shaw’s sister had testified how abusive Wilson could be, that, on the night (or early morning) in question, Ruffin had not wanted his sister Bumetta and her friend to go with Wilson in his car when they had left the party “because [Ruffin] knew how [Wilson] was and said that he would give [his sister] a ride home.”²⁵

Other friends and relatives of Ruffin who were at the apartment corroborated Mitchell’s testimony about the circumstances preceding and following Ruffin’s confrontation with Wilson. Shaw’s sister also testified that when Ruffin returned he told his sister not to worry because “everything is taken care of,” and that Shaw had said he would take care of everything. A neighbor overhead Shaw instruct Ruffin to stay cool, and confirmed that Ruffin had wiped blood from his boots. The medical evidence was consistent with Mitchell’s description of Ruffin's actions, establishing that Wilson had suffered brain damage as a result of being beaten around the head, was comatose upon arrival at the hospital and never recovered consciousness, and that the head injuries were the cause of death five months later, when Wilson contracted pneumonia causally related to his head injuries.

Ruffin’s oral statement²⁶ was presented to the jury through Detective Dyson’s testimony. Ruffin had said, according to Dyson, that Wilson had attempted to kick him and he “blocked that blow and countered with several blows, and then eventually stomped [Wilson].”²⁷ Ruffin had also admitted being trained in the martial arts and using his martial skills in the incident.

Ruffin’s written statement was read to the jury by Detective Muse.²⁸ The statement was exculpatory insofar as it set forth Ruffin’s claim of self-defense. On direct examination, Ruffin testified that the written statement did not always accurately state what he had told the police. He explained that he had gone to find the decedent to ask him to return to the apartment to talk things over, but before he could do so the decedent had kicked him in the groin several times and punched him.²⁹ He disputed Mitchell’s testimony that he subsequently had to pull Ruffin off Wilson and that Wilson was not conscious after he kicked him; Ruffin claimed he had decided to stop on his own and that Wilson was getting up as he and Mitchell left.³⁰ On cross-examination, Ruffin held steadfast to his claim he had acted in self-defense. The only questions by the prosecutor regarding Ruffin’s written statement were brief, asking if he had initialed each page, said he did not like Wilson, and had a brown belt in karate.

Although the government did not present eyewitness testimony about the initial moments of Ruffin’s confrontation with Wilson, the government witnesses’ description of the circumstances before and after the incident produced a very strong government case. Ruffin’s testimony claiming self-defense was consistent with his oral statement and the material portions of his written statement.

To the extent that his testimony differed from his oral statement and the testimony of his relatives and friends, Ruffin’s testimony was impeached, and the impeachment provided by the written statement was cumulative. Once Ruffin’s written statement was in evidence, the prosecutor’s references to it were comparatively brief and summary in nature in the course of a lengthy cross-examination and closing argument. At the beginning of his closing argument the prosecutor told the jury, in accordance with the trial court’s instructions to the jury on malice, that it was unnecessary for the government to prove that Ruffin had gone to his sister’s apartment with the specific intent to kill Wilson or hated him or felt hostility toward him, because the requisite malice was demonstrated by showing Ruffin “had a heart that was reckless of the life and safety of Clifford Wilson.” In rebuttal closing argument, nearly all of which focused on the co-defendant Shaw, the prosecutor, in asking the jury to convict Ruffin of second degree murder, and not manslaughter, mentioned Ruffin’s remark in his written statement that he did not like Wilson as one of several reasons for a murder conviction, but focused principally on the revenge Ruffin sought for the rape of his sister. Accordingly, in view of the strength of the government’s case, and the exculpatory and cumulative nature of the written statement, we conclude that the error in admitting the written statement at trial was harmless beyond a reasonable doubt.³¹

VII. RUFFIN: LESSER INCLUDED OFFENSE INSTRUCTION

Finally, we note, contrary to Ruffin’s assertion, that the trial court properly declined to instruct the jury on the lesser included offense of involuntary manslaughter. The evidence supports at best, for Ruffin, an inference of intent to apply dangerous force or do bodily injury (voluntary manslaughter), not, as Ruffin alleges, an inference of intent to commit a misdemean- or, such as simple assault, not involving such force or injury. See United States v. Bradford, 344 A.2d 208 (D.C.1975).

VIII. SHAW’S CONTENTIONS

Appellant Shaw contends the trial court abused its discretion in ruling, after an in camera inspection, that certain portions of prior statements of three government witnesses did not need to be disclosed under the Jencks Act, see Super.Ct.Crim.R. 26.2 (implementing Jencks Act, 18 U.S.C. § 3500 (1982), in the District of Columbia). The subject of the testimony of all three witnesses was a conversation that each had had with Shaw at the time of the assault, in which Shaw stated that he had injured Wilson in the course of an arrest. We have examined the undisclosed documents and find that none of them “relate[s] to the subject matter of the testimony of the witness[es]” under 18 U.S.C. § 3500(b). Therefore, the trial court did not abuse its discretion in holding that the government was not required to produce these statements. See Reed v. United States, 403 A.2d 725, 732 n. 9 (D.C.1979).

Shaw also asserts the trial court erred by instructing the jury that a testifying defendant has an interest in the outcome of the trial. That claimed error is groundless. See United States v. Hill, 152 U.S.App. D.C. 213, 217, 470 F.2d 361, 365 (1972) (cited in Dyson v. United States, 450 A.2d 432, 440 (D.C.1982)).

Finally, we find ample evidence to support Shaw’s conviction as an accessory after the fact to simple assault. An accessory after the fact is one who assists a principal to avoid apprehension or punishment. D.C.Code § 22-106 (1981). The government’s evidence showed that Shaw affirmatively attempted to mislead the police into thinking that Shaw had been forced to inflict the injuries upon Wilson in the course of an arrest. Six police officers testified that in six separate conversations Shaw had told them that he had inflicted the injuries. That Shaw’s statements were designed to aid the true culprit to avoid apprehension is made even clearer by the testimony that Shaw told Ruffin not to talk to the police and to wipe the blood from his shoes and in addition by Shaw’s statement that he would tell the authorities that he had injured Wilson while attempting to apprehend him.

Accordingly, we affirm Ruffin’s conviction of second-degree murder and vacate his conviction of mayhem, and we affirm Shaw’s convictions.

Affirmed.

1 . According to Detective Dyson, Ruffin told him that after Ruffin had heard Wilson had raped his sister, he had found Wilson in his sister’s apartment house. He had asked Wilson to come back to the apartment to talk things over. Wilson had responded by attempting to kick Ruffin, and Ruffin had blocked the kick and proceeded to defend himself. Then the following interchange took place:

[Prosecutor] Did he describe what he did in defense of himself?

[Dyson] Yes, sir. He mentioned that he struck the decedent several times and also executed a stomp kick, several stomp kicks, to the decedent’s body.

[Prosecutor] Did you have any discussions with Mr. Ruffin about whether or not he had any training in the martial arts?

[Dyson] Yes, sir, I did.... [H]e advised me that he had had formal training in Taekwon-do and that he had reached the rank of brown belt.... He advised me that he boxed CYO [Catholic Youth Organization] when he was young and that he also boxed while he was in the military.

2 . See also Florida v. Royer, 460 U.S. 491, 503, 103 S.Ct. 1319, 1327, 75 L.Ed.2d 229 (1983) (plurality opinion) (consensual inquiry in public place "escalated" into investigatory procedure in police interrogation room where "consensual aspects of the encounter had evaporated").

3 . Cf. Oregon v. Mathiason, 429 U.S. 492, 493-94, 97 S.Ct. 711, 713, 50 L.Ed.2d 714 (1977) (per curiam) (no custodial interrogation, in violation of fifth amendment, where suspect: telephoned police officer, who had left card at suspect’s apartment; agreed to meet officer at state patrol office; and, once there, responded to questions after learning he was not under arrest but without receiving Miranda warnings); Calaway v. United States, 408 A.2d 1220, 1224-25 & n. 8 (D.C.1979) (no fifth amendment violation where detectives informed suspect he was not under arrest but they wanted to question him at their office; suspect agreed and made incriminating statements at police station before Miranda warnings were given).

4 .This case presents the question of the defendant’s and the government’s respective burdens in going forward with evidence and, ultimately, in persuading the trial court. A defendant who files a motion to suppress "has the burden of making a prima facie showing of illegality and demonstrating a causal connection between the illegality and the seized evidence.” Duddles v. United States, 399 A.2d 59, 63 (D.C.1979) (citations omitted). This means "the defendant is obliged, in his [or her] definitive motion papers, to make factual allegations which, if established, would warrant relief (based on evidence discovered of the government and, if necessary, proffered from defendant’s own view of the case).” Id. When the defendant has done so, this will shift either the burden of production or the burden of persuasion to the government, depending on the circumstances. See Malcolm v. United States, 332 A.2d 917, 918 (D.C.1975) (absent a warrant, burden of establishing probable cause is on government; given a warrant, burden of proving lack of probable cause or unlawful execution of warrant is on movant). We understand United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), and earlier Supreme Court cases to stand for the proposition that, once a defendant asserts he or she was "seized” or taken into "custody” by the police without a warrant, the burden of persuasion as to consent — an exception to the warrant requirement — shifts to the government.

5 . This court's decision in Giles v. United States, 400 A.2d 1051 (D.C.1979) provides no guidance here. In concluding that the defendant’s presence at the police station was voluntary, this court did not indicate there was any evidentiary conflict at the suppression hearing.

6 . Dyson added that, after Ruffin had arrived at headquarters, Dyson "advised him of his rights, that he was not under arrest at that particular time.” By this Dyson meant that he advised Ruffin of "rights that appear on the PD 47," Le., those derived from Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), but with the words "you are under arrest” changed to "you are not under arrest.”

7 . Ruffin's testimony is also susceptible to a third, albeit more speculative interpretation: that he had personally spoken to the police over the telephone, that he had relayed through his sister his willingness to “come down to the precinct,” and that the police accordingly had "made arrangements” through Ruffin’s sister to meet Ruffin at his other sister's house.

8 . Later, at trial, Detective Dyson testified that Lieutenant Alexander had telephoned the family home, unsuccessfully, in an effort to reach Ruf-fin. The possibility of more than one phone call from Dyson or another officer to Ruffin’s residence, reaching Ruffin personally only on the second occasion, is therefore not farfetched.

9 . In Hayes v. Florida, 470 U.S. 811, 812, 105 S.Ct. 1643, 1645, 84 L.Ed.2d 705 (1985), the Court found "no consent to the journey to the police station."

Arriving at petitioner’s house, the officers spoke to petitioner on his front porch. When he expressed reluctance voluntarily to accompany them to the station for fingerprinting, one of the investigators explained that they would therefore arrest him. Petitioner, in the words of the investigator, then “blurted out” that he would rather go with the officers to the station than be arrested.

See Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797 (1968) (search cannot be justified on basis of consent when consent has been given only after official conducting search has asserted he or she possesses a warrant).

10 . We do not address whether Detective Dyson’s testimony, before Ruffin took the stand, would have been enough to establish Ruffin’s voluntary consent to come to headquarters. At the hearing on the motion to suppress, Ruffin did not ask for a ruling based on Detective Dyson’s testimony alone. In any event, we conclude that, once Ruffin took the stand, followed by police testimony in rebuttal, the trial court properly considered all the evidence, not just the government’s opening evidence. Cf. Hawthorne v. United States, 476 A.2d 164, 168 n. 10 (D.C.1984); Franey v. United States, 382 A.2d 1019, 1021 (D.C.1978) (defendant who introduces evidence after denial of motion for judgment of acquittal at close of government’s case thereby waives motion and cannot make that ruling subject of appellate review).

11 . Apparently, Ms. Mendenhall was not told that she did not have to go with the officers to the office, but the fact that people respond to police requests "without being told they are free not to respond, hardly eliminates the consensual nature of the response,” Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 216, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984), if the totality of the circumstances indicates voluntary consent beyond "a mere submission to a claim of lawful authority." Royer, 460 U.S. at 497, 103 S.Ct. at 1324 (plurality opinion); accord, Schneckloth v. Bustamonte, 412 U.S. 218, 233-34, 93 S.Ct. 2041, 2050-51, 36 L.Ed.2d 854 (1973).

12 . The Mendenhall majority also considered circumstantial evidence: whether “the incident would reasonably have appeared coercive” to a 22-year-old black female who was not a high school graduate and who “may have felt unusually threatened by the officers, who were white males.” 446 U.S. at 558, 100 S.Ct. at 1879. The Cotut concluded that, ‘‘[w]hile these factors were not irrelevant, [citations omitted], neither were they decisive.” Id.

13 . The repeated recitation of these warnings followed by a defendant’s confession at least inferentially supports a finding of voluntariness; the warnings are inevitably relevant to the trial court’s perception of whether a defendant who confesses to a crime — after being told he or she need not speak at all — is credibly asserting that the police, nonetheless, coerced the statement. This, of course, is not to say that the giving of Miranda warnings precludes a finding of involuntariness.

14 .One can only speculate as to why the prosecutor and defense counsel declined to examine or cross-examine the police officers and Ruffin about what, if anything, Ruffin had said when asked to come to headquarters voluntarily. Nor is it clear why the prosecutor declined to recall Detective Dyson to rebut Ruffin’s bench warrant testimony. A likely explanation is that both lawyers feared the answers would be harmful to their respective positions. As a result, we lack important, relevant information. The government, having the burden of proof, took the greater risk if the court were to credit uncontra-dicted defense testimony which the government was in a position to undermine through its own witnesses but elected to ignore.

The trial court, in the interest of finding the truth, should step in to clarify the situation after both counsel have so obviously avoided an undoubtedly relevant, indeed critical, question. See Womack v. United States, 350 A.2d 381, 382-83 (D.C.1976). In such circumstances, the tried court’s absolute deference to the adversary system permits counsel for both sides to dance around the truth in a criminal case. When that happens, the trial court is entitled, and perhaps even obligated, to perform an inquisatorial role. See id.

15 . Because a police officer does not know what a suspect, who is asked to come to the police station for questioning, is likely to say at a suppression hearing, the officer who confronts a compliant suspect may, as a practical matter, have to make sure that the suspect knows he or she is not under arrest at the time the officer makes the request.

16 . In the government’s case-in-chief, Detective Dyson had merely answered "not to my knowledge" when asked whether Ruffin had come to headquarters in handcuffs. In rebuttal, it became apparent that Detective Muse’s uncertainty about whether Ruffin had been handcuffed related to the period after Ruffin had given his oral statement.

17 . The fact that Ruffin did not sign a written waiver of his Miranda rights before giving his oral statement is therefore irrelevant and, in any event, would not be dispositive of a suppression motion even if Ruffin had been in custody. See Walden v. United States, 351 A.2d 515, 517 (D.C. 1976).

18 . The fact that Ruffin had given an oral statement to Detective Dyson before his interchange with Detective Muse, coupled with Ruffin’s equivocal request for counsel, does not affect our analysis, for "[t]he mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned." Miranda, 384 U.S. at 445, 86 S.Ct. at 1612.

19 . The pertinent language in Miranda, construed in Edwards, is the following:

[If the defendant] indicates in any manner and at any stage of the process that he [or she] wishes to consult with an attorney before speaking there can be no questioning.

384 U.S. at 444-45, 86 S.Ct. at 1612. In Fare v. Michael C., 442 U.S. 707, 719, 99 S.Ct. 2560, 2569, 61 L.Ed.2d 197 (1979), the Court called this rule a "rigid" one, noting that under Miranda “an accused’s request for an attorney is per se an invocation of his Fifth Amendment rights, requiring that all interrogation cease.”

20 . The government contends that Ruffin did not claim in the trial court that his seized clothing should be suppressed and cannot raise the issue now. Irby v. United States, 342 A.2d 33, 40 (D.C.1975); Anderson v. United States, 326 A.2d 807, 810 (D.C.1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1405, 43 L.Ed.2d 659 (1975); D.C.Code § 23-104(a)(2) (1981); Super.Ct.Crim.R. 12(b)(3). The government maintains it therefore did not introduce any evidence to show Ruffin had consented to the seizure of his clothes when he had been at the homicide office for approximately four hours. At the suppression hearing defense counsel urged the court to suppress all the evidence secured by the police at the homicide office. The trial court announced that it would treat the motion to suppress as encompassing Ruffin's statements as well as the physical objects. The court also referred to the clothing in its decision to admit all the evidence against Ruffin. The government did not object or seek reconsideration. Before trial, new defense counsel announced that he would renew the motion to suppress but in broader terms than the motion filed by prior counsel. Accordingly, we disagree with the government's contention that the issue was not raised.

21 . The trial court found that Ruffin had consented to the seizure. This court may affirm the denial of a motion to suppress which is correct as a matter of law on another ground. Daddles v. United States, 399 A.2d 59, 64 (D.C.1979). We do not reach the question of whether the exclusionary rule applies to "fruits" of a Miranda violation. Derrington v. United States, 488 A.2d 1314, 1330 and n. 21 (D.C.1985).

22 .According to Detective Dyson, Ruffin told him that after he had heard his sister had been raped by Wilson, he had found Wilson in his sister’s apartment house. He asked Wilson to come back to the apartment to talk things over. Wilson responded by attempting to kick him, and he blocked the kick and proceeded to defend himself. The interchange that followed is set forth supra in note 1.

23 . Ruffin was arrested on an arrest warrant days after he left the homicide office. The fruits of the search were not necessary to support probable cause to arrest him.

24 . The co-defendant, Shaw, had told Ruffin to wipe the blood off his shoes, and he had tried to do so. See supra Part I and infra Part VI.

25 . Shaw's sister also testified that she thought Wilson was using PCP, and that later that day Ruffin, as he was leaving the police station, had said "He [was] lucky the nigger ain’t dead.” See also infra note 28.

26 . See supra note 1.

27 . The government’s witnesses testified that Wilson had been put out of Ruffin’s sister’s apartment without his coat or shoes although it was a very cold night. Ruffin did not deny that Wilson was barefoot.

28 . In his written statement, Ruffin claimed that as he approached Wilson, Wilson had tried to push him down the hallway stairs and then tried to punch him. Ruffin blocked the punch, and hit Wilson “with a left-right combination to both sides of his face.” Wilson fell and tried to grab Ruffin’s feet and push him down the stairs. Ruffin explained that he started kicking Wilson to keep from being pushed down the steps. He kicked him “once with a full house and two straight down stomps.” Admitting that he "did a job on him,” and had probably kicked him around the forehead, mouth and nose, Ruffin claimed that when he last saw Wilson he was still conscious. Ruffin saw a lot of blood, and had tried unsuccessfully to wipe the blood off his shoes. He also said that he had waited in the hallway until the police arrived and told him to leave. Ruffin also claimed that he had stopped kicking Wilson when someone said "It’s not worth it,” and denied that he was doing anything more than defending himself; he viewed his actions as teaching Wilson a lesson, that ”[y]ou can’t keep going around mistreating people and expect nothing to happen.” Ruffin admitted he did not get along with Wilson, who he thought was just another one of them “herb smoking Street Niggers,” and that he had boxed and taken karate.

29 . Ruffin also took issue with various non-essential details in his written statement, such as in whose car his sister was sitting before his altercation with the decedent, whether he knew karate terms, and whether he had known Shaw for eight or ten years.

30 . Ruffin testified that as he and Mitchell were on their way back to the apartment, they met Shaw who told them to go back to the apartment and went upstairs himself. Ruffin then heard, as he was turning the corridor of the steps, “some loud thumping” coming from upstairs, “like someone being hit." He turned and saw Shaw hitting Wilson with the butt of a gun and kicking him.

31 .In analyzing whether the error was harmless, our dissenting colleague relies on Supreme Court decisions concerning coerced confessions obtained under circumstances totally different from those here. Moreover, in concluding that the prosecutor relied heavily, and apparently in the dissent’s view exclusively, on Ruffin’s written statement, our colleague has ignored Ruf-fin's oral statement and other evidence of Ruf-fin's attitude toward Wilson on the night/morning of the assault.