Wilson v. United States

444 A.2d 25, 1982 D.C. App. LEXIS 318

• Court: District of Columbia Court of Appeals
• Decided: March 25, 1982
• Docket: 80-1392
• Status: Published

Opinions

MACK, Associate Judge:

This is an appeal from a conviction of accessory after the fact to felony murder (kidnapping) (D.C.Code 1973, § 22-106). The appellant contends that an inculpatory statement he made should have been suppressed because the two detectives who transported him from the Arlington County Jail to the District for processing and then to the Superior Court honored neither 1) his Fifth Amendment (Miranda) right to remain silent nor 2) his Sixth Amendment right to counsel. This statement, “[in] particular[ ],” later formed the basis of the appellant’s conviction after a stipulated trial. Brief for Appellee at 7.¹ We agree with the appellant that the detectives failed to “scrupulously honor” his right to remain silent and reverse.

The appellant was arrested at Fort Myer, Virginia about 9:30 a. m. on July 13, 1978 by a military policeman. The policeman, whose sole responsibility was to transfer the appellant to public authorities, read appellant’s rights to him and did not question him. He did not ask the appellant to sign a Miranda waiver card.

The appellant spent that night at the Arlington County Jail. The next morning, at approximately 11:00, two District Homicide Detectives, Aduddell and Chaney, arrived to transport him back to the District. At the hearing on the motion to suppress, Detective Aduddell testified that he recited the appellant’s Miranda rights to him while in Arlington and that the appellant said he understood them.² He also testified, however, that, when questioned, the appellant said he had “nothing to tell,” other than to “den[y] his present [sic] at the time of the offense.” The detective also testified that the appellant was “curious” as to how they had gotten his name and that they told the appellant that a witness to the alleged offense had made a statement implicating him. Further, Detective Aduddell testified that he, Detective Chaney and the appellant continued to discuss the case during their drive back to the District.

When the detectives and the appellant arrived at the District’s Homicide Office, the officers again verbally advised appellant of his rights. Detective Aduddell testified that the appellant did not waive his rights and that he and Detective Chaney continued to discuss the case and the evidence against the appellant with him and to respond to his questions. He also testified that he and Detective Chaney had earlier discussed the possible efficacy of providing the appellant with increasingly more specific information regarding his alleged offense. On cross-examination, Detective Aduddell continued:

Q. And your prior discussion with Detective Chaney about whether or not to talk to him further, in those discussions, was there any indications of what might be your purpose in revealing such information?

A. We felt if we were more specific, perhaps Mr. Wilson would decide to change his mind and give us a statement. Q. You were working in effect on Mr. Wilson, to abandon the — to induce Mr. Wilson to abandon the — his position of the exercise of his rights?

A. I don’t like the terminology, but I’ll say yes.

Q. It was a deliberate strategy, was it not?

A. It would say it was deliberate only that he initiated the questions of us.

After the appellant was processed, Detectives Aduddell and Chaney took him by car to the Superior Court eellblock. Detective Aduddell testified that as he was pulling into the entrance of the court the appellant asked him to stop and again inquired about the evidence that had implicated him. It was at that point that the detectives told him the name of the witness — a friend of his and a witness to the murder, Linda Baldwin. Detective Aduddell described the appellant’s reaction as “flabbergasted. He couldn’t believe it.” Thereafter, the detectives and the appellant talked for “a couple of minutes” during which the detectives told him that it would be in his interest to make a truthful statement.³ He then agreed to give a statement which was executed between 12:30 and 2:30 that afternoon.

I.

Our Fifth Amendment analysis begins with Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The Court there held that a suspect in police custody must be informed that he has the right to remain silent; that anything he says can and will be used against him in court; that he has the right to consult with and to the presence of counsel during interrogation and that, if he is indigent, a lawyer will be appointed to represent him. The familiar Miranda warnings are the prophylactic safeguard assuring at least a notice of these rights.

The question here, however, is not whether the appellant was advised of his rights but, rather, whether he had invoked his right to remain silent and, if so, whether the detectives failed to “scrupulously hon- or,” Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), that right by continuing to “interrogate” him. If we find that the detectives scrupulously honored that right we must then look to whether the appellant “intentionally relinquish[ed] or abandon[ed]” his right to remain silent. Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938); United States v. Alexander, D.C. App., 428 A.2d 42, 48-49 n.19, 52 n.27 (1981).

The trial court found that appellant invoked his right to remain silent, both in Arlington when he said he had “nothing to tell” and later at the Homicide Office. Finding that conclusion to have been supported by substantial evidence, we affirm it. D.C.Code 1973, § 17-305(a).

“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. The next question we must address, therefore, is whether the detectives’ continuing discussions with the appellant after his invocation of his right to remain silent amounted to “interrogation.” We hold that they did under the teachings of Rhode Island v. Innis, 446 U.S. 291, 300-02, 100 S.Ct. 1682, 1689-90, 64 L.Ed.2d 297 (1980).⁴

At the suppression hearing, Detective Aduddell admitted that his and Detective Chaney’s intent in engaging the appellant in conversation was to induce his statement. While this alone is not dispositive under Innis,5 the Court there did stress that the definition of interrogation extends to words or actions on the part of police officers that they should have known were reasonably likely to elicit an incriminating response. As such, the intent of the police in Innis was “not . .. irrelevant”; in fact, the Court concluded, “where a police practice is designed to elicit an incriminating response from the accused, it is unlikely that the practice will not also be one which the police should have known was reasonably likely to have that effect.” Id. at 301-02 n.7, 100 S.Ct. at 1690 n.7.

While the Court in Innis failed to hold that an interrogation had taken place, it did so on the basis that, given the circumstances surrounding the respondent’s statements,⁶ the police should not have known that the suspect would be moved to make an incriminatory response. Id. at 302-03, 100 S.Ct. at 1690-91. Such was not the case here as Detective Aduddell testified regarding his and Detective Chaney’s agreed-upon plan and intent to comment so as to elicit exactly the type of incriminating statement which the appellant eventually made.

This court adopted the Innis test in United States v. Alexander, supra, a case not unlike this one in that there, too, a detective, after Alexander had asserted her right to counsel, made statements to her and used “techniques” which, he later admitted, were designed to elicit inculpating statements. Id. at 51. There we held that the detective’s admission “conclusively demon-strat[ed]” that he did not “scrupulously honor” the suspect’s right not to be interrogated and reversed the trial judge’s, ruling that she was not interrogated within the meaning of Miranda. Accord, Robertson v. United States, D.C.App., 429 A.2d 192 (1981).

While our finding here that the detectives continued to interrogate the appellant after he invoked his right to remain silent goes far toward a conclusion that they did not “scrupulously honor” the appellant’s rights, we nonetheless must look to the strictures of Michigan v. Mosley, supra, to determine, ultimately, whether the appellant’s Fifth Amendment rights were violated.

We are met, at the outset, with the trial court’s finding of no Fifth or Sixth Amendment violations in that the detectives did not overbear the appellant’s will nor improperly induce his statement, but, rather, that the appellant voluntarily gave a statement and, in fact, initiated the conversation himself.⁷ In reviewing a court’s denial of a motion to suppress we may not disturb its factual findings so long as they are supported by substantial evidence. D.C.Code 1973, § 17-305(a). On the facts of this case, we conclude, as a matter of law, that the appellant’s rights were not scrupulously honored and, as such, Miranda, supra, and Mosley, supra, require the exclusion of his statement.

In Mosley, the 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 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 two hour break 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 all these questions in the affirmative and vacated the Michigan Court of Appeals’ reversal of the respondent’s conviction.

While the appellant here was repeatedly advised and acknowledged his understanding of his Miranda rights those rights were, nonetheless, not scrupulously honored under the second and third factors which Mosley set as guidelines. Here, the detectives did not immediately cease questioning the appellant. Instead, they persistently and consistently interrogated him intending to elicit incriminatory statements. Also, the government failed to satisfy Mosley’s third prong. The same detectives engaged the appellant in conversation regarding the same crimes virtually throughout their four hours together, the only break apparently occurring during the routine processing procedure which, as we have recognized, can also be the “functional equivalent of ‘interrogation.’ ” United States v. Alexander, supra at 51. Lastly, although the scenes of the interrogations did change, those changes did not ease the potentially coercive atmosphere surrounding the interrogations. Rather, the locations became increasingly more coercive such that the appellant was at the court house door before he decided to make a statement. Therefore, given the detectives’ failure to provide the appellant with sufficient Mosley safeguards, we find that his rights were not “scrupulously honored” by those detectives. Cf. Calaway v. United States, D.C.App., 408 A.2d 1220 (1979) (suspect continued to speak despite consistent warnings by the police); Peoples v. United States, D.C.App., 395 A.2d 41 (1978), cert. denied, 442 U.S. 911, 99 S.Ct. 2826, 61 L.Ed.2d 277 (1979) (suspect signed a confession six hours after a previous interrogation and after he had been taken before a judicial officer who, along with the detective who took the statement, gave him fresh Miranda warnings).

Since we so find, we also conclude that the appellant’s statement did not amount to an intentional relinquishment or abandonment of a known right or privilege for Fifth Amendment purposes and that it should have been suppressed. United States v. Alexander, supra at 52.

II.

The trial court also ruled that the appellant’s Sixth Amendment right to have counsel present during interrogation was not abridged. We agree. The appellant had not been formally charged, indicted or arraigned at the time of his incriminatory statement. Hence, under our recent decision in Hill v. United States, D.C.App., 434 A.2d 422 (1981), in which we held that the Sixth Amendment right to counsel “applies only to post-indictment confrontations between the accused and government agents,” the appellant’s right to counsel had not yet attached. Id. at 430, citing Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).⁸ See also Brewer v. Williams, 430 U.S. 387, 398-99, 97 S.Ct. 1232, 1239-40, 51 L.Ed.2d 424 (1977), (the Sixth Amendment right to counsel had attached in a case in which an arrest warrant had issued and the defendant had been arraigned and confined to jail by a court). We therefore affirm the trial court’s finding in this respect.

In view of our conclusion that the statement introduced into evidence was obtained in violation of the Fifth Amendment, the judgment appealed from is

Reversed.

1 . The stipulated trial was the appellant’s second trial arising out of the same occurrence. It is a ruling by the judge in the first trial denying the appellant’s motion to suppress which he is challenging.

2 . At the hearing, two other officers testified that they had arrested the appellant previously, on March 30, 1978 and April 4, 1978; and that on both occasions he was read his rights, understood them and signed waiver cards, once waiving all his rights, the other time retaining the right not to answer questions.

3 . Detective Addudell also testified that earlier in their discussion they had told the appellant that if he gave a statement they would help him get released on personal recognizance and that the promise was a “calculated inducement” to convince him to make a statement. The detective noted, however, that it was the appellant who initiated the discussion of the possible conditions of his pretrial release.

4 . The trial court noted that the discussions at issue were not “lengthy interrogations” but did not specify whether the discussions constituted an “interrogation” in the first instance.

5 . The Court stated that the test for determining whether the police have interrogated a suspect is not the intent of the police but primarily the perceptions of the suspect. Id. 446 U.S. at 301, 100 S.Ct. at 1689.

6 .The Court described the conversation between the police which apparently provoked Innis’ statement as “consisting] of no more than a few offhand remarks .... ” Id. at 303, 100 S.Ct. at 1691. In United States v. Alexander, supra at 51, we described that same conversation as “a casual remark from one officer to another in the presence of the defendant

7 . The government, on appeal, argued that there was no constitutional defect here since the appellant initiated the relevant discussion. While the record is unclear as to whether the appellant’s “curiosity” was piqued initially as a result of the detectives having told him about the existence of an unnamed witness to the alleged crime or the detectives having told him of the witness was a result of the appellant's questioning, it is not crucial here. In light of the detectives’ deliberate and ultimately successful attempts to induce the appellant’s incriminatory statement, our finding that their attempts amounted to an interrogation and our conclusion that the detectives failed to scrupulously honor the appellant’s Fifth Amendment rights, it would be inconsistent for us to hold that the appellant independently and insistently initiated, nurtured and guided the discussions. Cf. Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (petitioner subjected to interrogation at the instance of police after invoking his right to counsel).

8 . The appellant admits that he at no time during his custodial interrogation requested the assistance of counsel. Hence, we need not address the question of whether he was denied his Fifth Amendment right to counsel.