Davis v. United States

H63 DAVIS, Appellant, v. Robert V. STATES, Appellee.

UNITED

No. 96-CF-275. Appeals.

District of Columbia Court

Argued April 1997.

Decided Dec. Gilbert, DC, ap- Washington,

Richard K. court, by appellant. pointed Flood, Assistant United States James G. Holder, Jr., Attorney, Eric H. with whom Attorney at the time the brief United States Fisher, filed, and R. Thomas C. John Black, Zeidenberg, R. Assistant and Peter brief, Attorneys, on the United States appellee. WAGNER, Judge, and Before Chief KERN, RUIZ,* Judge, and Senior Associate Judge.

WAGNER, Judge: Chief Davis, Appellant, was convicted Robert V. armed and degree murder while of second weapons in connection with related offenses Holley.1 Benjamin He the death of ground that the principal on the for reversal videotaped admitting erred in his trial court Specifically, he contends that his confession. confession, although given after against privilege an informed waiver self-incrimination, inadmissible because deliberately failed to administer obtaining him an warnings in from custodial, incriminating statement.2 earlier that the first statement The trial court found * possession of a firearm one count of Judge as well as Ferren was a member Former Associate dangerous argument oral in this offense the division that heard a crime of violence court, 22-3204(b)); departure (D.C.Code Associ- (PFCV) carrying pis- from the § case. After his replace Judge lot to (CPWL) (D.C.Code ate Ruiz was selected § 22- tol without license him. 3204(a)); weapon prohibited possession of a (D.C.Code 22-3214(a)). (machine (PPW) § gun) degree murder for first 1. Davis was indicted (D.C.Code §§ (premeditated) 22- armed while Arizona, 2. Miranda v. (1996 Repl.)). He was convicted -3203 (1966). 16 L.Ed.2d 694 degree mur- included offense of second the lesser 22-2403, -3203), (D.C.Code §§ der while armed coerced, voluntarily given was not him not to read them to when he returned to voluntarily, knowingly that Davis and intelli- the interview room. When the detectives gently p.m., returned to the room around 6:00 waived before making detectives told Davis that had learned statements. Ore- (Peanut) Angela gon v. he and Daniels shot (1985), Holley and that the had recovered the 84 L.Ed.2d 222 weapons used. Detective Sullivan told Davis voluntary post-Mi- held that an accused’s thirty-five get years that he to life for admissible, could randa statement is notwithstand- p.m., the offense. About 6:20 the detectives ing pre- him obtained from “Peanut,” they spoken told that Davis had statement, provided un- that true, they was not that “under- warned statement was not coerced. 470 U.S. stood that Peanut had the nine millimeter 105 S.Ct. 1285. We find no clear and that Mi-.Davis had the AK.” Davis blurt- error in findings, the trial court’s factual AK, ed out that “Peanut had I had the ruling its is consistent with the thereafter, Shortly nine.” Davis asked De- independent Elstad. Our review of the rec- room, tective Sullivan leave the and Sulli- conclude, totality ord leads us to under the complied. van Davis testified that the reason circumstances, that Davis’ unwarned he asked Sullivan to leave the room was voluntary. statements were See ‍​​​​​​​​‌​​​​​‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‌​‌​​‌​​​‌​‌‌‌​‌‍Miller aggravated because Sullivan seemed with his Fenton, 104, 113, answers, and he did not like Sullivan’s hostile (1985). Finding grounds L.Ed.2d 405 attitude, although nothing. Sullivan said upon reversal based Davis’ other claims of improper exclusion of evidence and failure to room, After Detective Sullivan left De- voluntary manslaughter, instruct on we af- until tective Collins interviewed Davis about firm. p.m., 6:45 and Detective Sullivan observed them on the video monitor. Davis told De-

I. Suppression HeaHng Holley tective that he had Collins shot with A. The Evidence weapon the nine millimeter and that Daniels Holley point, shot with the AK-47. At one Benjamin Holley was shot and killed on day Davis said that he knew that this November in the 5100 block of coming. admitting Sometime after his in- Place, S.E., Astor Washington, D.C. Accord- murder, volvement Davis mentioned suppression to the evidence at the hear- that he had a sister who was a officer. ing, Davis was arrested for the crime at Collins said that he knew her and had a p.m. January 1995, pursu- about 4:00 “pretty working relationship” close her. ant to an arrest warrant. Davis testified admissions, inculpatory After Davis made that he was taken to an office the Police day him Detective Collins told Department thirty between fifteen to min- change would life and that he should his stopped. utes after Grego- he was Detective up accept man “stand and be a whatever Sullivan, ry investigating who had been comes down the road.” case, arrived at the homicide office about 5:00 p.m. later, partner, twenty-five Sullivan and his Detective Ben- About minutes at about Collins, jamin spoke p.m., first with Davis there 7:00 advised Detective Collins Davis p.m. rights, signed about 5:30 and informed him he was PD- his Miranda and Davis Benjamin rights indicating under arrest for the murder of card that he wanted to Holley in rights. gave the 5100 block of Astor Place. The Davis waive his twenty p.m. beginning detectives left the room for 7:11 At fifteen statement at paperwork, they prepare videotape, rights minutes to ob- Davis confirmed through during served Davis a video monitor had read to him. Detective Collins acknowledged that time. Detective Sullivan testified Davis also that he had waived rights writing he knew that Davis had not been his on the back of the these warnings, rights signed signature.3 but he made the decision card where he his acknowledged 3. Davis had the detective card: following warning read him the from the PD-47 spoken had to Pea- substantially the state- the detectives gave then same believe nut, said, the detective because previously. After ments that he had to show that paper purporting him a telephoned showed taped days up earli- had been locked three Peanut shot someone.4 sister and told her he er, just days had seen Peanut two and Davis played videotape of the statement was thought that he that he ago. Davis stated hear- for the filled out telephoned his sister before he ing.5 He admitted that told card. time that Davis was During the for murder that he had been arrested her room, in a chair with interview he was seated I talking, use in not and that “there is no to a bolt which was his left arm handcuffed already talked to him and I did it.” floor. testified affixed Sullivan promises Davis they no threats or to Ruling B. The Trial Court’s reluctant to talk. and that Davis was not pre-Mi- that Davis’ The trial court found angry they did not become Sullivan said voluntarily and randa statement was made Davis, disgust engage any express at or second coercion and that Davis’ without playing (e.g., good cop/bad cop) different role preceded by full Miranda statement was interrogation. The purposes of the de- for knowingly, rights, which Davis weapons into the tectives did not take their voluntarily intelligently waived. and said that interview room. Detective Sullivan determination, the reaching the voluntariness cigarettes and a drink be- requested Davis totality of the cir- trial court considered the they provided p.m., fore 6:30 and both. Sulli- into Specifically, the court took cumstances. appear to van also testified that Davis did not (1) arrests, and age, account: be uncomfortable or under the influence threats, any police promises, the absence of drugs during the inter- or other intoxicants (2) weapons; display of mistreatment or the view. influence of Davis was not under the (3) alcohol, eighteen years upset; was Davis testified that he or drugs confused directly appeared in this case and quеstions old at the time of his arrest answered he (4) grade, although transpiring;6 he did not what went to the tenth to understand was uncomfortable, appeared acknowledged to complete grade. He ar- that while routine pain, handcuffing juvenile for unauthorized use rests while a (5) case; simple procedure a a murder a motor vehicle and assault and gun was de- falsehood about the days four before arrest detectives’ traffic arrest However, not an signed to elicit a truthful ease. Davis could not recall deciding, Assuming, without advised of his untruthful one. whether he had ever been by annoyed that Detective Sullivan was rights. Consistent with the detec- him that responses and told testimony, that the de- Davis’ tives’ Davis admitted day, court found all the trial him or make him would be there tectives did not threaten impact upon very [Davis’] little “that this had any promises. He also testified that hearing, any Detective Sullivan you Before I ask At the You are under arrest. your questions you what must understand with his sister recounted Davis' conversation right to remain silent. are. You have follows: required say anything at to us You are not to said he— was under arrest and He told her he any Any- any questions. or to answer time it, said, I did and then he it was for murder you say against you thing in court. can be used Gina, pulled somebody. it. I I I did shot right lawyer talk You have a to trigger, kill him. but I didn’t any ques- questions before ... before X advice you during you, tion and to have him with ad- transcript provided, but it was not 5. A questioning. one, you lawyer and want If cannot afford mitted into evidence. you. you lawyer provided will be If want lawyer questions answer now without a state- trial court viewed 6. The you right stop present, will still ment. any answering have the time. You also you stop answering any right time until lawyer. talk to a

H67 F.2d police.” U.S.App.D.C. provide information decision (1992). circumstances The focus The court found that talk, compelled to the second state- that Davis was not is whether showed determination therefore, voluntary. that he had acted appeared, and it in fact ment was Having compulsion. found the out of moral 1285. The voluntary, the pr statement to be e-Miranda explained further post-Miranda court determined that of Mi- unwarranted extension [i]t is an videotaped statement was admissible under simple failure to randa to hold that a supra. The also found unaccompanied warnings, administer to his sister after Davis made the statement other circum- actual coercion or therefore, warnings, ruled it undermine the sus- stances calculated to admissible. will, so pect’s ability to exercise his free investigatory process that sub- taints the Analysis II. sequent and informed waiver erred in that the trial court period. for some indeterminate ineffective ruling post-Miranda videotaped Though requires that the un- under su- statement was admissible suppressed, the must be warned admission pra. He advances two reasons for the trial any subsequent admissibility of statement (1) error, specifically contrary court’s that: solely turn in these circumstances should findings, was not to the court’s the statement voluntarily knowingly and on whether it is (2) voluntary; inapplicable deliberately forego police decide to where the 309, 105 at S.Ct. 1285. Id. interrogation until after which results in a confession. A. Voluntariness Elstad, supra, In totality of the cir- Davis pre-Miranda Court held that the accused’s cumstances, including particularly manip- necessarily inad statement does not render and their deliber- ulative tactics of a statement made after missible apprise him his Miranda ate failure to Elstad, 314, warnings. 470 U.S. rights, that his statements were demonstrate States, 1285; Cowan v. United 547 involuntary. position that It is also Davis’ (D.C.1988). 1011, po A.2d Where questioning viewed as should be administering question suspect a without lice although he interrogation, one continuous required rights, before, coercion occurred claims that presumption compulsion, is a render there after, warnings. the Miranda rather than ing the statement excludable from evidence way, contend Davis does not Put another chief, if government’s in the case in even during coercion occurred that “additional voluntary in the otherwise context the Miranda the waiver of 307, Fifth Amendment. videotaped statement.” “Despite pat the fact that ently voluntary taken in violation statements government The burden is on the pros be excluded from the of Miranda must of the accused prove that the statements case, presumption coercion ecution’s voluntarily given without coer impeachment pur their use for does bar 896, States, 567 A.2d cion. Martin v. United (citing poses on cross-examination.” Id. (D.C.1989) (citing Twomey, 404 Lego v. York, 222, 401 U.S. 91 S.Ct. Harris New (1972)) 619, 477, L.Ed.2d 618 92 S.Ct. (1971)). 643, 28 L.Ed.2d omitted). (other Setting aside for citation that there was moment Davis’ contention supra, a

Under record single interrogation, a review of the warnings is given after Miranda statement trial court’s determination given supports even if the accused has admissible voluntary and initial was provided pri- such statement prior unwarned threats, promises or coer not the result of coerced. 470 U.S. or statement was not 305, 105 Gale, 1285; 470 U.S. cion. See 105 S.Ct. United States false- told him a deliberate Generally, the factors for consid that the detective S.Ct. 1285. offense, specifical- hood about his role determining eration in voluntariness include ‍​​​​​​​​‌​​​​​‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‌​‌​​‌​​​‌​‌‌‌​‌‍dеtectives ly, surrounding that Peanut had informed question the circumstances gen- education, AK-47. “Confessions ing, age, the accused’s they are ob- law, erally are not vitiated when experiences physical with the trickery, long as by deception or tained mental condition at the time the statement not calculated employed are made, means showing other factors coercion or D.A.S., In re produce an untrue statement.” trickery, delay suspect’s and the between the accord, (D.C.1978); Beas- 391 A.2d Beasley arrest and the confession. v. United trial ley, supra, 512 A.2d at 1015-16. States, (D.C.1986), 512 A.2d cert. specifically, agree, we court found denied, 107 S.Ct. to- was directed particular statement this (1987) (citations omitted). L.Ed.2d 377 On statement, not a false eliciting a ward true appeal, deference must be to the trial Moreover, one. Davis testified fact, however, findings court’s review of Pea- account about not believe the detectives’ legal the trial court’s conclusions is de novo. with Davis’ inconsistent nut because was States, Hicks v. United 705 A.2d knowledge about Peanut’s own first-hand (D.C.1997) (citations omitted); Byrd v. Unit circumstances, the whereabouts. Under (D.C.1992) States, ed 618 A.2d by the detectives deception employed (whether appellant’s was volun finding the trial court’s insufficient to render tary question requires of law that inde of voluntariness erroneous. review) appellate pendent (citing Miller v. Fenton, supra, 474 U.S. at a statement reliance on places great 445). to the effect to Sullivan which he attributes if day all he did there would be case, trial court all considered making such cooperate. denied Sullivan findings, made factual of these factors and did not resolve statement. The trial court record, sup- in the whiсh based evidence assuming testimony, this conflict in the port inculpatory that the initial its conclusion arguendo correct on this was voluntary. was uncoerced and statement determined, ac- point, taking into the court Davis, eighteen year an old with an education demeanor, count that this statement grade, to the tenth had been arrested on impress impact on his deci- did not Davis or occasions; three he was not under the provide Davis’ actions sion to a statement. pain drugs influence of alcohol or Sullivan, leave the toward he asked to whom or unusual discomfort under the circum- support to this point, lends room one stances. The court found that the detectives conclusion. engage in tactics or conduct did not coercive Rogers free will. which overbore Davis’ See Applicability B. Richmond, 81 S.Ct. apply in Elstad does not (1961). Specifically, they 5 L.Ed.2d 760 intentionally this ease because the promises complied made no threats or rights him of his Miranda failed to advise request for to leave the with his Sullivan Conceding that before the initial confession. room, drink, cigarettes and a and later to for dispositive, standing this factor alone is telephone testimony a call. The make combined with Davis contends that where findings supports the trial court’s detectives was obtained fact that his confession regard. in this extended, interrogation, Miranda’s custodial exclusionary apply. Citing Jus- that the detectives’ rule should Davis contends tactics, opinion he manipulative dissenting psychologically use of tice Stevens’ there are apprise implies him ease along with their failure to of his contends factors, some circumstances which rights initially, among other resulted cure .7 involuntary points He out waiver of Miradda will not statement. persuaded intends its following I am that the Court to the statement from 7. Davis refers category apply narrow dissenting opinion: to a Justice Stevens’ regard, In that factor. upon such a Eighth Cir based primarily on the Davis relies Carter, stated: Supreme Court 884 the opinion in States cuit’s Cir.1989). Carter, (8th however, have, applied In F.2d 368 courts A handful of defen upheld suppression of the ob- relating to confessions precedents our post-Mircmda confession where dant’s to sit- coercive circumstances tained under directly on the heels of wholly voluntary came “almost involving admis- uations Id. at 373. sions, confession].” first requiring passage [unwarned of time or break ap interrogated second, inspectors fully Carter warned Postal in events before fifty-five the dis proximately voluntary. minutes about Fаr can be deemed statement money, rule, appearance of and with rigid Canadian we direct establishing a from, consent, one; searched his wallet and Carter’s warrant there is no courts to avoid money marked and a check which found inhere the coercive presuming effect tray. placed in a inspectors had mail inculpatory suspect’s initial inspectors confronted Car F.2d at 369. The Mi- technically in violation though circumstances, in turn and he randa, inqui- ter with these voluntary. The relevant Only incriminating Id. whether, fact, statements. ry the second statement inspectors then did the advise Carter such voluntarily made. As was also provided a rights under Miranda before he examine inquiry, the finder of fact must guilt. confessing his Id. written statement and the en- surrounding circumstances upholding the trial court’s respect course of conduct tire order, court concluded that the oral suspect evaluating the voluntari- to the part were a of one con written confessions fact that ness of his statements. rule did process tinuous and that the Elstad being in- speak after suspect chooses to permit end ran around Mi “this sort of course, is, highly formed of randa.” Id. at 373. probative. 317-18, Carter, that, like Davis contends added). Thus, omitted) (footnote (emphasis subjected period of to one continuous Carter, persuaded we are not interrogation during he was custodial case, hold, facts of this particularly on the he had con not informed of his until was one continuous what occurred here Here, to the crime. both detectives fessed requiring suppression of interrogation period a fifteen minute left Davis alone for warnings.9 after Miranda statement obtained after his initial statement beforе administer Further, has stated warnings, and his involving the in circumstances minutes statement was made another eleven which fol properly of a warned Carter, Thus, supra, unlike some thereafter. unwarned, clearly ad an lows end twenty-six elapsed minutes between the mission, two a break between subse initial statement and the of Davis’ essential. sepa supra, the time quent one.8 In circumstances, careful and thor- In these the initial unwarned state ration between warmings of Miranda ough administration subsequent one ment and the rendered to cure the condition approximately one serves inadmissible. unwarned statement holding not turn on Elstad hour. The informa- conveys relevant warning between the two confessions. the time frame suspect’s choice Rather, tion and thereafter rigid rales Elstad seems to eschew argument support of his also cites in questioning оf 9. Davis which the initial of cases in Gale, F.2d totally U.S.App.D.C. suspect supra, in a uncoercive was made ap- confession ob- setting in which the first Elstad did not proposition for tire viously influence on the second. had no deliberately to “end tried ply where Elstad, supra, S.Ct. 1285. However, 470 U.S. not clear it is Miranda. run” around approved in court in Gale that the Davis’ commencement of 8. The time between the Carter, distinguishable. its facts were since and the warned confession initial statement forty-one (from p.m. 7:11 until minutes 6:20 p.m.). privilege striking whether to his exercise to remain the trial court erred ordinarily silent should testimony be viewed as of defense witness Shawn James “act of free concerning will.” decedent’s acts and bad convictions. Davis concedes that self-defense 310-11, 105 S.Ct. 1285 evidence, by was not raised but he con- States, (citing Wong Sun v. United 371 U.S. tends that the stricken evidеnce was relevant (1963)). L.Ed.2d provocation generated by to the issue of his While the officer’s inten fear of the such evidence decedent and that forego tional decision to element mitigation negate could may totality factor circum murder, thereby re- degree malice in second stances to by be considered the court ducing manslaughter. it to assessing the voluntariness of the confes rejected the claim of sions, The trial court it is not the sole factor. See Bliss provocation, the evidence States, considering (D.C.1982), 445 A.2d gun ‍​​​​​​​​‌​​​​​‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‌​‌​​‌​​​‌​‌‌‌​‌‍denied, showed that “decedent asked for cert. (1983). then left and gave no one him and that he depends L.Ed.2d 972 Voluntariness sought ... him circumstances, went after him and [Davis] surrounding including There was out and shot him in the back.” “police whether there were tactics or meth left went evidence that the decedent рrocess ods offensive to due that render the he was asked to apartment toward when involuntary initial admission and undermine he should kill leave and that Davis said suspect’s will to invoke his once companion and him. Davis with a then left they are read to him.” victim, group to the Here, shot the and returned 105 S.Ct. 1285. the trial reported The court what he had done. totality considered the of the circum asked if evidence to there was other applied stances and properly to the support He offered position. facts Davis’ Upon as found from the evidence. him three record, had stabbed decedent review of the we are satisfied that years a half and that James would earlier pre-Miranda statements were volun him decedent attacked Therefore, testified that the tary. we error find (James) unspeci at some a Metrо station suppress. denial of the motion to having as fied time retaliation for James condone, however, We do not the deliber- prov sisted no evidence of Davis. There was ate failure to inform a criminal the time of ocation decedent at or near suspect promptly under Mi- shooting case. improprie- randa. addition to the obvious conduct, ty proceeds of such at some risk requested, “If the trial court legitimate government interests of the must offense instruc a lesser included and the guar- citizens it serves. There is no it, support tion whenever there is evidence suspect provide antee that the will the sec- Price, supra, 602 no matter how weak.” warnings ond confession given, once are (citations omitted). A.2d at 644 order to cases, and the may, failure to warn in some manslaughter, showing a of reduce murder to tiрs factor which the scales in favor of it passion” required, “heat of is and must exclusion of the confession. provocation derive “ from sufficient ordinary person ‘would reasonable cause an Mitigation III. Defense to lose her control and act his or self without ” only briefly (quoting

We need address v. Id. at 645 Brown reflection^]’ (D.C.1990)). First, States, 537, remaining claims of error. he A.2d 543 584 denying jury present that the trial court erred in a Id. Such evidence is not here. Therefore, instruction on the properly lesser-included offense of the trial court denied the voluntary manslaughter.10 requested agreed He also contends instruction. Davis prerequisites granting support 10. The two a lesser- dence must be sufficient to the lesser (1) States, 641, included offense instruction are that: charge. Price v. United 602 A.2d 644 some, every lesser offense must consist of element of the but not (D.C.1992). offense; (2) greаter the evi-

H71 confessing after waiving rights excluded evidence to the reason- went decedent, given requisite has ableness of his fear of the been therefore, an warnings. if he was not entitled to instruc- provocation mitigation, tion on exclud- added). 318, (emphasis 1285 105 S.Ct. According- ed evidence would be irrelevant. simply means is that the unrebutt What this ly, we do not address the claim further. presumption an unwarned legal able reasons, foregoing judgment For the of result coercive confession is the of appealed hereby from conduct, convictions in and therefore inadmissible 317, chief, government’s in ease id. at 105 Affirmed. 1285, apply also render S.Ct. does law, second, inadmissible, a matter a as RUIZ, dissenting: Judge, Associate not, howev warned confession. Elstad does seriously majority’s opinion The under er, presumption favor admissi reverse the requirement mines the Miranda that a sus confession, bility gov and the the second custody pect impor in informed of must be proving, by ernment still bears burden of given rights and be tant constitutional evidence, preponderance of the opportunity to waive those before be voluntarily given. second confession was See Arizona, interrogated. Miranda v. 477, 489, Lego Twomey, 404 U.S. 92 S.Ct. 1602, S.Ct. L.Ed.2d (1972); Martin v. Unit L.Ed.2d (1966). astray, majority opinion goes I States, (D.C.1989), ed A.2d cert. believe, disposition because it follows the denied, 632, 121 506 U.S. 113 S.Ct. Oregon v. 470 U.S. 105 S.Ct. (1992). L.Ed.2d The fact that the second (1985), L.Ed.2d 222 without consid after Miranda confession came qualifications ering significant not, facto, ipso does render it admissible. concerning degree court Elstad Rather, warning preceding is a failing misconduct the re highly probative goes fact to the volun- quired as well subsequent sought tariness confession effect, fact, of the first unwarned confes tо be It is to be consid admitted. factor Although sion on the later warned one. def totality among ered of the circumstances appropriate erence to the trial knowing determining whether there was facts, respect underlying to certain historical which, turn, waiver “the ultimate issue of ‘voluntariness’ is a reflects the voluntariness —and corre novo, legal question” we determine de sponding Fenton, 104, 110, 106 Miller S.Ct. —of Elstad, supra, statement. 470 U.S. at See (1985), taking 88 L.Ed.2d 405 into con 318, 105 States, 1285; Cowan v. United “complex values sideration mili [that] (D.C.1988) 1011, 1015 (citing 547 A.2d against treating question tates as one of 1285). simple historical fact.” Id. at (internal omitted). quotation With these in Elstad Supreme Court’s mind, I conclude that Davis’ considerations unwarned con- presumption that an videotaped involuntary confession ‍​​​​​​​​‌​​​​​‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‌​‌​​‌​​​‌​‌‌‌​‌‍was in the apply does to a subse- fession is coerced underlying sense constitutional because quent, not intended to warned egregious facts in this case much more officers from their liberate law enforcement suppres than those in and warrant legal promptly “Mirandize” a obligation sion of Davis’ confession even suspect custody: in official once finally though it was today way in no from retreats gave required warnings. Davis the Miranda We bright-line rule Miranda. do Thus, respectfully I dissent. good a failure imply faith excuses holding succinctly put Elstad was warnings; nor do administer by the Court: inherently police tac- we condone coercive process today tics offensive to due suspect hold who has once or methods We initial involun- yet admission responded to uncoercive render unwarned tary suspect’s will to thereby undermine the questioning is not disabled from and rights they invoke his once give are read to warnings, as constitutional- him. ly warnings mandated. Miranda were not given to Davis until one hour into active 1285; Id. at 105 S.Ct. see id. at (three arrest) police interrogation hours after (Brennan, J., (“[I]f dissenting) only Davis had mur- confessed to official violation flagrant, of Miranda was der. may fairly courts conclude that the violation employed calculated and precisely so as Nor can possibly we derive confidence in suspect’s ability ‘undermine the to exercise the voluntariness of Davis’ waiver of his ’) his free (citing majority opinion will.” at tardily given were —once —from 1285); 105 S.Ct. id. at that, Elstad, the fact as in “[n]either the (“I (Stevens, J., dissenting) persuad- am environment nor the manner of either ‘inter ed that the apply Court intends its rogation’ was coercive.” Id. at only category to a narrow of cases in which the court noted that “[t]he the initial questioning suspect place initial midday, conversatiоn took totally made in a setting uncoercive and in living room respondent’s area of own obviously the first confession had no home, area, with his mother in the kitchen second.”). influence on the steps away” few stop” that “the brief Because of importance the central of Mi- the home had purpose not been for the warnings voluntariness, randa to the issue of interrogating suspect, notify “but to pains the Court Elstad took to show that mother of the By reason for his arrest.” Id. police officers in that case acted reason- contrast, here, arrested, Davis was taken to ably purposely and did not disregard their station, police and two hours later sub obligations suspect’s First, nor rights. jected police interrogation active the Court noted that one officer’s failure forty-five least hardly a “brief minutes — give warnings “may have been the stop.” During this time he was in an interro result of confusion as to whether the brief gation room handcuffed one arm to a bolt exchange qualified interrogation’ as ‘custodial in the quite being unlike in the famil floor — may simply or it police [the reflected surroundings iar living of his own room at officer’s] reluctance alarming to initiate an home inas Elstad. police procedure .... Whatever the reasons police oversight, [the the inci- officer’s] circumstances, Under these the fact dent had none of the earmarks of coercion.” finally apprised the officers Davis of his 315-16, (emphasis 105 S.Ct. 1285 add- rights three being hours after taken into ed). custody, interrogation after active yield- murder, ed a confession to a mere ten or possible It is not explain to excuse or fifteen concluding minutes before the interro- police conduct in this eаse with similar nice- gation by videotaping session the confession ties. At hearing, Davis’ Detec- insufficient, under to render the tive Sullivan testified that he had been the videotaped confession admissible. That the officer who obtained a warrant for Davis’ delay advising officers’ unconscionable arrest and that the warrant had been execut- Davis of his undermined his will is ed and Davis p.m. had been arrested at 4:00 evident from 14,1995. Thus, January ques- there is no (a telephone call with his sister offi- tion that the here knew that Davis was cer) which the trial court custody and found occurred that Miranda were after he had required. therefore Not confessed and Miranda warn- was the ings subsequently given, officer in case not confused about the “there is talking, already need to no use in I talked to him Court ven- —as may I Although suspect’s igno- tured have been did it.” the case Elstad —but admitted, gave consequences Detective Sullivan also rance of the unwarned for, explanation having compromise made a conscious does not the volun- decision, interrogation when active tariness guilt, of an admission of see began arrest, 317, 1285, almost two hours after the 470 the

1173 arrested, Mir formally the time that was exploit1 the are aware and fact that of statement”); gave his and misunderstanding andized suspect’s the serious Gale, 218, 224, U.S.App.D.C. v. States legal compounds egregiousness the of (1992) that, un (noting F.2d case, making it in this police’s the behavior Carter, ... evidence of like in there was “no distinguishable from Elstad. further and, a deliberate ‘end run’ around (“Nor the officers district court’s consequently, no error the exploit pressure to the unwarned admission incrimina suppress” the warned refusal to his to respondent waiving right into remain State, statement); Halberg P.2d ting silent.”) (Alaska Ct.App.1995) 1099 n. 3 Eighth the Appeals the Court of As Carter, noting that (distinguishing from facts go so explained, has “Elstad did Circuit “not fla Miranda was police’s violation of of permitting far to fashion a rule sort as the tried to grant purposeful,” “that Miranda." United States v. end run around duty [imposed by] Mi comply the with Cir.1989). (8th Carter, 884 F.2d significant was “[t]here randa" and possibly Distinguishing the inadvertent Mi hours —be approximately seven interval — tween” the cer randa violation Elstad from the more interrogation first and unwarned custody warnings in requiring tain situation one); State v. the second warned see also it, the case before the Carter court observed Nobles, P.2d 122 Idaho “gave Elstad no indication that it intend (Idaho Ct.App.1991), aff'd, 122 Idaho green light ed to to law enforcement (1992) (concluding, after first de P.2d 1281 requirements Mi ignore officers of termining unwarned and warned that both able randa until such time as are aftеr voluntary, incriminating statements Id. The court also secure confession.” suggest evidence to is there “[n]or distinguished by noting that there exploited unwarned admis the officers passed the first unwarned hour had between suspect] waiving pressure into [the sion suspect’s and the confession at home confessing” right to remain silent warned confession at time, given). warnings were second Carter, passage station. “there was is like than Elstad. This case more Carter speak con time to of between unwarned Carter, As subsequent warmings and and fession inter- conclusion a continuous was confession, part as all of which occurred rogation. The number of minutes between parcel process.” Id. of a continuous at 373. not, by confessions is unwarned and warned appellate state Federal and courts itself, It relevant evalu- determinative. Carter, supra, apparent approval cited opportunity to ating whether there was an proposition that Elstad should not be and the reconsider between unwarned automatically interpreted permitting the dissipate warned confessions sufficient confession, if of a even second confession. Here taint of the unwarned voluntary, evaluating egre- without first minute break dur- there was a ten-to-fifteen police’s giousness failing conduct he con- Davis left alone after ing which was required administer merely first This was fessed the time. up of a clear break between the existence video- to set time took officers second, first, time, unwarned and the warned con- During that Davis taping equipment. McCurdy, 40 place, See handcuffed fession. United States to be in the same continued (10th Cir.1994) (distinguish- floor, knowing the officers were F.3d ground videotaping, did not final preparing on the officers for the Carter incriminating minutes later. The suspect making coerce into some ten commenced during this brief delay “a alone and that there was fact that statements under the circumstances. period negligible the time that the offi- several hours between then [suspect] custody Had Miranda been cers detained their telephone. his sister on at the 1. Detective Sullivan testified present spoke to hearing that he when alone, might possi ting had voluntary. support been left it be statements were In period ble to consider short as a this interval of approach, opined its the court as follows: interrogation stopped which the view, highly Our in own tentative Davis had some time reflect and reconsid guidance absence more from the Su- light rights. er his statements in In of his Court, preme is that Elstad be would hard stead, the here did advise officers not [of to confine to technical violations Mi- until after returned to randa]; language its emphasizing the vol- begin videotape his confession. United Cf. prime safeguard test untariness as the Gale, U.S.App.D.C. States powerful by too for that. But the same (“[A] change 223 n. F.2d at 1417 n. 9 in wholly token we think that Elstad does not passage location and the of time between excluding bar door to evidence derived post coerced statements and a -Miranda from a Miranda violation —at least where statement are viewed as relevant to show merely the Miranda violation is not techni- dissipated point has coercion cal, where there is substantial nexus that a defendant is able to make a rational between violation and the second state- time.”) decision waive his at a later ment, and where the second statеment is (citing supra, 470 U.S. by preceded not adequate itself Mi- 1285); see also Stewart warning. randa (D.C.1995). States, 668 A.2d recently, Appeals Most the Court of panel ... agree All members of the First trial Circuit affirmed the court’s in events this case are unusual incriminating statements discourages any promiscuous that Elstad court, open voluntary, in though even ordinary use of the fruits doctrine Mi- were fruit unwarned state randa cases. Byram, ments. See United States v. (footnote (1st Cir.1998). omitted). Id. at 409-10 F.3d 405 The court stated police “good had acted in faith”— the. Although facts of this case are differ- objectively ‍​​​​​​​​‌​​​​​‌​‌​​‌​‌‌‌‌‌‌‌​‌​​‌​‌​​‌​​​‌​‌‌‌​‌‍incorrectly albeit the offi —when Byram, particularly ent from those give warnings cer failed to the first Davis did receive some measure of Miranda incriminating time that the witness made warnings immediately before he confessed on statements; and that the witness was not videotape,3 conduct here was entitled Miranda before his trial egregious much in Byram, more than where testimony when made a second incrimina good were found to have acted ting because he not then in elapsed faith and month between the Nonetheless, setting.2 custodial the court of first inadmissible confession and the later appeals held that the witness’ second state Carter, suppressed. sought By- one What properly ment at the state trial was excluded ram citing and the other cases Carter when that then witness became defendant approval make clear is that prosecution, in a federal as the tainted fruit opinion straight- Court’s in Elstad is not as incriminating of the unwarned statements the majority forward as would it. It that had been made the witness while in sufficient, short, for this court to con- custody reaching a month earlier. its only that clude the first secоnd because testimony conclusion that the state trial fact, confessions sec- suppressed, be should court looked at the one, warned, automatically ond if is therefore first, linking specific facts unwarned totality circum- admissible. incriminating statements with the second stances must considered. trial; statements it made at termi inquiry, majority nate its does in facts this case are that the case, deliberately once determined that both incrimina- violated Miranda and that there judge finally 2. Neither the trial nor counsel followed the that Davis received in salutary practice advising the witness of the efficacy. this case no assurance of their privilege against self-incrimination. earlier, 3. For reasons that I have stated see supra timing manner

1175 police As the the warn- at 115 S.Ct. 1185. opportunity was scant for belated reliance on acted arrest in reasonablе ings good. Supreme much Court to do information, evidence court-supplied the Miller, recognized in which was decided after result the unlawful arrest was seized as a of is that because “ours an accusatorial would admissible because exclusion deemed inquisitorial system, ... and not an tactics police likely not affect future conduct. eliciting inculpatory must fall for statements within the broad constitutional boundaries apply in the Fifth Similar considerations imposed by the Fourteenth Amendment In the Court context. Amendment guarantee of fundamental fairness.” police con distinguished between coercive (internal 110, 106 U.S. at S.Ct. citation involuntary in duct leads to confessions omitted). Thus, testing in addition to confes- fact, give required warm- police failure to against privilege sions the Fifth Amendment presumed ings results in confessions self-incrimination, against “the Cоurt has involuntary matter law. The be as a against continued to measure confessions the latter, “pre explained in is the Court Id,. requirement process.” That of due remedy provides a ventive medicine [that] “significant because reflects the Court’s who has suffered no even to the defendant consistently held view constitutional harm.” identifiable (citations omitted). aof turns as much on whether the confession “The 105 S.Ct. 1285 statements, extracting the techniques exclusionary rule ... serves applied sweeps broadly suspect, compatible to this are with a Fifth more Amendment and system presumes innocence and assures than the Fifth Amendment itself.” Evans, 306, 105 1285. As Arizona inqui- that a conviction will not be S.Ct. secured therefore, apply our decision whether sitorial means as whether defendant’s on suppress rule a confession exclusionary will in fact overborne.” Id. part Colorado, on its deterrent effect on should turn (citing Gallegos S.Ct. police against future conduct. Viewed L.Ed.2d U.S. analysis, pains Elstad’s Court’s more recent (1962)). Therefore, only does not police’s explain the reasonableness of preclude suppression in the circumstances of complete absence of coer conduct and case, but when confession issue meaning. acquires cive full environment against pro- here is viewed the broader due Suppression confession El- of the warned Miller, thoughtful ap- cess considerations police stad not have deterred miscon would plication exclusionary rule mandates none —or significantly, the found duct— even induced suppressed. that it be care in police greater to take juris recent Court’s more warnings. prompt The situation providing prudence еxclusionary on rule contrast, us, however, before stands stark context of the Fourth Amendment is instruc delayed purposely advis here whether, question tive in this Fifth for a considerable Davis of context, Amendment an unwarned confession time, knew period Evans, should be excluded. In Arizona v. given, Miranda mandated 1, 115 L.Ed.2d engaged they had in active and even after (1995), evidence the Court refused exclude yielded a persistent interrogation that had obtained as a result of a seizure and to murder. search in violation of the Fourth Amend view, my flagrant violation Mi- distinguished ment. The between a coupled in this randa that occurred case violation, search and Fourth Amendment be- time and circumstance the closeness seizure, of a search use of the fruits second confessions re- tween the first and Id. in violation of the Fourth Amendment. confes- quire suppression second Noting the exclu S.Ct. 1185. sion. suppresses fruit sionary rule which misconduct], deter “remedial device [to application has been restricted to rule’s objectives its

those instances where remedial thought efficaciously

are most served.” Id.

Case Details

Case Name: Davis v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Dec 31, 1998

Citation: 724 A.2d 1163

Docket Number: 96-CF-275

Court Abbreviation: D.C.