Leonard D. EVERETTS, Appellant, v. UNITED STATES, Appellee.
No. 91-CF-38
District of Columbia Court of Appeals
Argued Feb. 11, 1993. Decided June 28, 1993.
Before ROGERS, Chief Judge, FARRELL, Associate Judge, and PRYOR, Senior Judge.
The judge then gave the instruction which Hill now challenges.
The supplemental instruction which the judge gave cannot be characterized as anything other than neutral and balanced. The judge was plainly aware of his duty not to emphasize unduly any particular aspect of the case; at the same time, he recognized that he had a duty to respond to the jury‘s question. See Potter v. United States, 534 A.2d 943, 946 (D.C. 1987) (reversible error occurs when court does not adequately answer jury‘s note); Murchison v. United States, 486 A.2d 77, 83 (D.C.1984) (obligation to respond to jury‘s confusion). Furthermore, the instruction was legally correct in telling the jurors that they had a duty to determine whether the proven facts warranted a finding that Hill was guilty of the crime charged, despite their possible distaste for the procedures used to effect the arrest. See Hack v. United States, 445 A.2d 634, 641 (D.C.1982) (Sixth Amendment unanimous verdict requirement obliges that the jury be in substantial agreement only as to what the defendant did). We find no legal error and no abuse of discretion in the supplemental instruction.
IV
We hold that Officer Knox, when he first saw Hill in the location where Officer Graves said he would be, had probable cause to arrest Hill for selling a controlled substance to Officer Graves. We therefore conclude that the trial judge properly allowed the seized $20 bill to be introduced into evidence, despite his initial error in ruling that a positive identification by Officer Graves was essential to a finding of probable cause. We also hold that the supplemental instruction which the judge gave in response to the jury‘s note was carefully balanced and reflected no abuse of discretion. Hill‘s conviction is therefore Affirmed.10
Found guilty by a jury of felony murder while armed (
William T. Morrison, Silver Spring, MD, appointed by the court, for appellant.
Albert A. Herring, Asst. U.S. Atty., with whom Jay B. Stephens, U.S. Atty. at the time the brief was filed, and John R. Fisher, Asst. U.S. Atty., Washington, DC, were on the brief, for appellee.
I.
On December 27, 1989, appellant—then sixteen years old—and three codefendants were arrested at approximately 4:30 a.m. for the armed robbery of Jeffrey Crocker. After first being taken to the Youth Branch of the Metropolitan Police Department, appellant was brought to the Homicide Branch between 6:30 and 7:00 a.m. for questioning about the murder of John Coleman. There he remained handcuffed to a desk in an interview room until approximately 3:00 p.m., without being questioned. The three other suspects were detained elsewhere in the Homicide Branch. According to a detective, appellant was not
At about 3:00 p.m., Detective Victor Smith advised appellant of his Miranda rights and asked whether he would make a statement without the benefit of an attorney. Before informing him of his rights, Smith told appellant that he “had talked with some other people that were in [appellant‘s] company at the time of his arrest,” and that the investigation “had disclosed some circumstances that associated them with the homicide.” Smith intended “to make [appellant] aware ... that [he] would be attempting to get statements from everyone involved.” Appellant responded that he understood his rights and agreed to make a statement on videotape without an attorney present. At about 3:15 p.m., Detective Mayberry advised appellant of his rights a second time, and he again acknowledged his understanding of them and willingness to talk, signing a PD-47 rights card to that effect. At 3:26 p.m., two detectives began the videotaped interview after confirming with appellant his previous understanding of his rights and consent to talk without a lawyer present. The interview concluded at 3:42 p.m.
In his taped statement, appellant implicated himself directly or indirectly in the murder of John Coleman and the armed robberies of Jeffrey Crocker, Christie Lancaster, and Sherrie Fisher. He explained that he and the other defendants had been “riding around” in two separate cars early on December 27, 1989, when they stopped and robbed “this boy.” Everyone got out of the cars, and his companions repeatedly struck the victim, but appellant “didn‘t get to hit him” because a dog came on the scene. The group rode around some more before one of them robbed a second person, Crocker, at gunpoint. They then drove around the corner before “jump[ing] out on these two girls,” Fisher and Lancaster, and robbing them at gunpoint of a coat and earrings. (Lancaster‘s earrings were later found in appellant‘s coat pocket). Finally, after additional driving, the occupants of both cars stopped when they saw a man, Coleman, walking along the street. An occupant of the second car got out, ran past Coleman, and motioned with his hand while looking at appellant and codefendant Alston. Appellant and Alston got out of their car, and Alston approached Coleman and struck him with his gun, causing him to fall to the ground. As appellant ran back to the car, he heard three gun shots. Coleman was shot four times in the back and died as a result.1
In his oral motion to suppress the confession, appellant contended only that the statement was involuntary in the classic sense. In ruling on the motion, however, the trial judge raised independently the issue of whether the eleven-hour delay between appellant‘s arrest and his presentment to a judicial officer violated the “without unnecessary delay” provision of
other than the delay, there are no real—other real indicia of involuntariness in the case and I say that based in part upon an objective examination of the factors that go to voluntariness and in part upon my own observation of the videotape, the confession.
It‘s clear to me that notwithstanding the defendant‘s age, he knew very clearly what was going on. It‘s clear from the tape that he was calm. He was collected. He was rational. He did not show any apparent effects of being intimidated or threatened or being scared.
There is no indication on the tape that he was intoxicated or otherwise under the effect of drugs. There are no indications and inquiries [sic] about his age or his reading ability or his intelligence [which] would have borne fruit in reflecting that he was not able to understand and know what was going on. To the contrary, the tape reflects that he clearly knew what was going on.
And there is no evidence of any fear, threats, coercion or force, physical or psychological, no evidence of any offer of award [sic; reward]. The length of time of the statement itself [was] certainly relatively minimal, within reasonable constraints. I think it was twenty to thirty minutes, as I recall, from looking at the clock on the wall.
[T]here were one or two officers present. I don‘t even—they were in uniform. Their presence certainly was not intimidating by its nature, and given all of the circumstances surrounding the confession except for the extraordinary delay, I would find the confession voluntary.
After reviewing binding decisions of this court and the United States Court of Appeals for the District of Columbia Circuit3 concerning the relation between delay in presentment and a Miranda waiver, the judge ruled that the delay alone did not require suppression. “[O]nce somebody validly waives their Miranda rights, everything that Mallory[, supra, note 2] sought to accomplish has been accomplished and I don‘t think ... there‘s any Mallory problem and I don‘t think there‘s any voluntar[iness] problem.” The judge therefore denied the motion to suppress.
II.
We recently summarized the law governing the interplay of
Super.Ct.Crim.R. 5(a) provides that an arresting officer “shall take the arrested person without unnecessary delay before the Court.” We have held that a confession obtained during a period of unnecessary delay is inadmissible in evidence. But we have further held, repeatedly, that “a valid waiver of an individual‘s Miranda rights is also a waiver of his Mallory right to presentment without unnecessary delay.”
Id. at 899 (citations omitted). See also Byrd v. United States, 618 A.2d 596 (D.C. 1992). In Bond we observed, for example, that in Bliss v. United States, 445 A.2d 625 (D.C.), amended on other grounds, 452 A.2d 172 (D.C.1982), we had upheld the admission of the defendant‘s voluntary statements although his confession “took place more than twelve hours after his arrest but after he had validly waived his Miranda rights several times.” Bond, 614 A.2d at 899. In Bond we also discussed the effect that the later-adopted
18 U.S.C. § 3501 plainly directs the admissibility analysis to “the issue of voluntariness of the confession” and provides that, as relevant to this case where the delay exceeded six hours, the trial court was obliged to consider as one factor—though it “need not be conclusive“—the time elapsing between appellant‘s arrest and presentment. “[T]he prime purpose of Congress in the enactment of§ 3501 was to ameliorate the effect of the decision in Mallory [so as] to remove delay alone as a cause for rejecting admission into evidence of a confession....” Under the statute, “[t]he extent and nature of a suspect‘s detention may ... be taken into account, as part of the totality of pertinent circumstances, in determining whether a confession was inadmissible for lack of voluntariness [in fact]” or voluntariness of the Miranda waiver.
Id. at 900 (citations omitted). See Byrd, 618 A.2d at 599. Hence, recognizing that voluntariness of the confession and of the waiver are the touchstone of analysis under
In Bond we held that a pre-presentment delay of thirty-six hours between arrest and the confession “did not affect the totality of the circumstances demonstrating appellant‘s voluntary waiver,” and we thus sustained the admission of the confession. Id. (footnote omitted). Significantly, however, “the [trial] judge [in Bond] found the delay to be reasonable” because the arrest took place on a weekend and the defendant‘s own deceptive conduct contributed to the inability to get him to court before the Saturday morning deadline for presentments. Id. In this case, by contrast, the trial judge found no justification for the delay in presentment. Also, neither Bond nor our most recent decision on this subject, Byrd, apparently involved the detention of a juvenile, a factor which the court has recently made clear requires special attention in considering the voluntariness of a consent. In re J.M., 619 A.2d 497, 502-04 (D.C.1992) (en banc) (consent to search of person). Finally, our admonition in Bond that reliance on a Miranda waiver becomes weaker as the length of pre-presentment detention grows necessarily implies that at some point unjustified delay in presentment may trump all other factors in the ultimate voluntariness determination.
Consequently, we find this a troublesome case to decide given the facts (1) of an unnecessary delay of eleven hours in presentment (2) of a 16-year-old boy (3) who for up to eight hours of that detention was handcuffed to a desk, severely restricting his movement. Appellant points in addition to the potential psychological coercion (intended by the police or not) implicit in the youth‘s being told by the detective that his codefendants were also being interrogated about the crimes. In seeking to justify the delay, the government argued to the trial judge that some latitude must be allowed the police in a multi-suspect case involving a spree of robberies culminating in a homicide, with the attendant need to identify civilian witnesses. But the record of what transpired during the eight hours is sketchy, and we certainly agree with the judge that the detective‘s explanation of “large amounts of paperwork” could not justify essentially ignoring appellant for eight hours or more in a position of obviously increasing physical discomfort. In short, our concerns in this case must serve as a warning to the police that unnecessary pre-presentment delay of this length, ag-
4. See A. RAPOPORT, FIGHTS, GAMES, AND DEBATES (1960).
Having said this, we nonetheless find substantial support in the record for the trial judge‘s conclusion that appellant‘s waiver of his rights was knowing, intelligent, and voluntary. E.g., Byrd, 618 A.2d at 598 (“We will not overturn the trial court‘s findings of fact on [the Miranda waiver] issue unless they are without substantial support in the evidence“). In addition to hearing the testimony of the detectives, Judge Greene viewed the videotape of appellant‘s statement, as have we. It supports the judge‘s findings that appellant “knew very clearly, what was going on“—although it is doubtful he knew the legal, i.e., felony-murder, implications of his admissions—and showed no signs of psychological manipulation by the police. The taped interview itself was not preceded by any interrogation,5 unlike in Byrd, supra, where we upheld the waiver despite repeated antecedent questioning and a six-hour delay in presentment. And appellant showed no hesitation in answering the detectives’ questions. Although he was handcuffed to the desk for eight hours, he was offered food and the opportunity to make a phone call and use the bathroom.6 Viewed from his present perspective, the police in leaving him alone during this time were playing “mind games” by letting him worry about the cooperation of his codefendants; but in that same apparent indifference to appellant the judge reasonably found “no evidence of any fear, threats, coercion or force, physical or psychological, [and] no evidence of any offer of award [sic; reward].” Finally, in keeping with our decision in In re J.M., the judge focused explicitly on appellant‘s youth, and found that despite his age he displayed normal intelligence and alertness to his surroundings, and no sign of fear or intimidation.
We hold, therefore, that the facts in this case are not sufficiently distinguishable from those in Byrd, Bond, Bliss, or other decisions of ours sustaining the admission of a confession despite pre-presentment delay, for us to reverse the denial of the suppression motion.
Despite its attempt to distinguish our prior decisions such as Byrd and Bond, supra, our concurring colleague‘s opinion that unnecessary delay in presentment alone (in excess of six hours) is ground for suppressing a confession without regard to the validity of an ensuing Miranda waiver cannot be reconciled with our decisions and must be presented to the court en banc. The rule we distilled from our precedents in Bond, i.e., that a primary purpose of
Furthermore, the concurring opinion does not explain how a statute (
The concurring opinion faults us (or rather this court‘s prior decisions) for merely emphasizing that as the length of pre-presentment delay increases, it undermines the government‘s ability to establish a voluntary Miranda waiver. E.g., Bond, 614 A.2d at 901 (“[t]he government‘s reliance on the waiver of Miranda rights becomes weaker as the period of pre-arraignment detention increases“) (citations omitted). According to the concurrence, this provides “no limiting principle” and “one can only speculate” as to when such delay, considered together with all other factors, will render a waiver involuntary. Post at 993-994. But the very same criticism of indefiniteness can be made of the concurring opinion‘s rule that once six hours have elapsed, delay in presentment alone may dictate suppression so long as a trial judge considers it “too long,” without regard to its impact on the voluntariness of the confession or the Miranda waiver. Even if our decisions did not compel us to do so, we would adhere to our understanding of
III.
Appellant was convicted of first degree felony murder. He contends that the jury should have been given a lesser included offense instruction on second degree felony murder that would allow a conviction of second degree murder if the jury found he had committed an underlying felony, but the attendant homicide resulted from the killer‘s “own agenda rather than the common purpose” of the felony. Appellant concedes it is unclear whether the offense of second degree felony murder exists in the District of Columbia, and also admits he “never clearly articulated” a request for such an instruction. In truth, appellant did not request at all the instruction he now advocates. He asked only for instruction on the “lesser included offense of second degree murder,” which the trial court gave. Since appellant did not “stat[e] distinctly” the omission to which he now objects in the court‘s instructions,
At oral argument, though not in his brief, appellant made a separate argument that it was plain error for the judge not to instruct the jury that, in order to convict him of first degree felony murder, it must find that the murder was committed in
IV.
We therefore remand the case to the Superior Court with directions to vacate the conviction for attempted robbery. In all other respects the judgment of conviction is affirmed.
So ordered.
ROGERS, Chief Judge, concurring:
This appeal presents an issue of first impression. The eleven hour delay in this case, in excess of the six-hour safe harbor of
Notwithstanding the assumption by the majority about the implicit understandings in our prior decisions, see majority opinion at 986-987, the court has not previously held that a valid Miranda waiver operates retroactively, i.e., that it waives a prior period of unreasonable delay. Until Bond v. United States, 614 A.2d 892 (D.C.1992), where the court concluded that a Miranda waiver trumps subsequent delay in presentment, the court had not confronted the impact of the federal statute,
Moreover, in the instant case, for the first time, the court is presented with a situation in which a youth is held for eleven hours after his arrest for a period of unnecessary delay before waiving his Miranda rights and giving a confession to the police. Cf. In re J.M., 619 A.2d 497, 502-04 (D.C. 1992) (en banc) (acknowledging special find-
An officer within the District of Columbia making an arrest ... or receiving a person arrested ... shall take the arrested person without unnecessary delay before the Court. * * * This Rule shall not be construed to conflict with or otherwise supersede section 3501 of title 18, United States Code.3
[Emphasis added.]
In interpreting this rule, the court has looked to the federal rule and its interpretation.4 See, e.g., Bond, supra, 614 A.2d 892; see also Goldkind v. Snider Bros., Inc., 467 A.2d 468, 474 (D.C.1983) (federal decisions may be persuasive authority for interpreting a local rule which is identical to a federal rule).
In addressing the instant appeal the purposes of the prompt arraignment requirement bear repeating. The Supreme Court explained in McNabb v. United States, 318 U.S. 332, 343-44, 63 S.Ct. 608, 614-15, 87 L.Ed. 819 (1943), that “[t]he purpose of this impressively pervasive requirement of criminal procedure [that a person be taken ‘forthwith’ and ‘immediately’ to a committing magistrate or judicial officer] is plain[,] [and] aims to avoid all the evil implications of secret interrogation of persons accused of crime.” The federal rule, in turn, which codifies the statutory right to a speedy arraignment, serves at least three important interests: to
(1) “protect[] the citizen from deprivation of liberty as a result of an unlawful arrest by requiring that the Government establish probable cause,” (2) “effectuate[] and implement[] the citizen‘s constitutional rights by insuring that a person arrested is informed by a judicial officer” of those rights, and (3) “minimize[] the temptation and opportunity to obtain confessions as a result of coercion, threats, or unlawful inducements.”
United States v. Alvarez-Sanchez, 975 F.2d 1396, 1398 (9th Cir.1992) (quoting 113 Cong.Rec. 36,067 (1967) and citing McNabb, supra, 318 U.S. at 343). While statutory provisions have been enacted by Congress to ameliorate strict requirements for prompt presentment, the federal courts have recognized that delay and the circumstances surrounding delay remain incompatible with the basic statutory purposes.5 United States v. Robinson, 142
Thus, even where there is a valid Miranda waiver, the federal courts have acknowledged that some delays are so long that confessions must be deemed to be inadmissible. See Frazier v. United States, 136 U.S.App.D.C. 180, 186, 419 F.2d 1161, 1167 (1969) (some delays are so long that waiver cannot be voluntary); United States v. Wilson, 838 F.2d 1081, 1086 (9th Cir.1988) (“The fact that unreasonable delay, alone, beyond six hours may support a finding of involuntariness suggests that unreasonable delay is the most important factor of all“) (citing United States v. Manuel, 706 F.2d 908, 913 (9th Cir.1983); United States v. Halbert, 436 F.2d 1226, 1234 (9th Cir.1970)); Alvarez-Sanchez, supra, 975 F.2d at 1400-01, 1403, 1405 (some confessions may be suppressed on basis of delay alone, where unreasonable delay lasts longer than six hours);6 Perez, supra, 733 F.2d at 1035 (unreasonable delay of over six hours may lead to statement‘s exclusion, even without finding statement involuntary); United States v. Yunis, 273 U.S.App.D.C. 290, 304-05, 859 F.2d 953, 967-68 (1988) (interpreting Robinson, supra, 142 U.S.App.D.C. at 53-54, 439 F.2d at 563-64, as stating that “section 3501(c) modifies but does not eliminate the court‘s authority to suppress confessions under McNabb-Mallory because of delay in arraignment“); see also United States v. Poole, 161 U.S.App.D.C. 289, 299 & n. 8, 495 F.2d 115, 125 & n. 8 (1974) (interpreting Robinson, supra).
Because the concern underlying Mallory, supra, 354 U.S. 449, is ultimately with “effectuation of Fifth and Sixth Amendment protections against the dangers of involuntary self-incrimination in
The court recently acknowledged in Bond, supra, that, aside from the appointment of counsel, prompt presentment under
However, application of this waiver interpretation to the circumstances in the instant case cannot be squared with the requirement of
Accordingly, I cannot agree with the majority‘s conclusion that our cases “have rejected appellant‘s argument that a valid Miranda waiver cannot waive a prior period of unnecessary delay.”10 Majority opinion at 985. The cases cited by the majority and the government for the proposition that delay alone is not enough to justify suppression did not focus on pre-waiver unreasonable delay of more than six hours or, at most, made general statements without further analysis.11 They are not con-
The majority states the facts in the instant case as follows: (1) there was unnecessary delay for eleven hours in police custody prior to presentment, (2) of a sixteen year old boy, (3) who for up to eight hours was handcuffed to a desk, severely restricting his movement, and (4) who was subjected to implicit psychological coercion because he could reasonably fear that his codefendants would talk to the police and was informed by a detective that the codefendants would also be asked to make a statement. See majority opinion at 985.
This states the facts too succinctly. Appellant was arrested at 4:30 a.m. on Wednesday, December 27, 1989. After being held for nearly two hours at the Youth Branch of the police department, he was moved to the homicide office, arriving around 6:30 a.m. to 7 a.m. In the homicide office he was handcuffed to a desk for at least eight hours, until approximately 3 p.m. After being in police custody for eleven hours, without any movement away from a desk for up to eight hours, a detective spoke to him. There is nothing to indicate that anyone had spoken to appellant during the time he had been handcuffed to the desk.12 Before being advised of his Miranda rights, appellant was told by the detective, first, that the police had spoken to or would speak to others who were with appellant when he was arrested, and second, that the police investigation “had disclosed some circumstances that associated them with the homicide.” See majority opinion at 983. The majority states that the detective wanted to be sure that appellant knew that the police were trying to get statements from “everyone involved.” Majority opinion at 983. The detective then, for the first time, advised appellant of his Miranda rights.13 Appellant waived his rights,14 and thereafter proceeded to implicate himself in the crimes.
The trial judge found that there was no excuse for the delay, and hence, it was unreasonable delay. But the judge nonetheless concluded that despite eleven hours of detention, up to eight of which appellant spent incommunicado and handcuffed to a desk, appellant‘s Miranda waiver was valid because appellant “clearly knew what was going on.” See majority opinion at 984, 986. The majority partially agrees, but it also concludes that “it is doubtful [appellant] knew the legal, i.e., felony-murder, implications of his admissions.” Majority opinion at 986. See Yunis, supra, 273 U.S.App.D.C. at 301-02, 859 F.2d at 964-65 (lack of knowledge of tactical legal implica-
Consider the circumstances at hand. Appellant, a youth of sixteen years, was held far in excess of the six-hour safe harbor of
Under the circumstances of the instant case, the unreasonable delay presents an insurmountable problem. Beyond the six-hour safe harbor, Mallory-McNabb continues to apply. See Robinson, supra, 142 U.S.App.D.C. at 53-54, 439 F.2d at 563-64;
Even under the Bond waiver approach, 614 A.2d at 899, adopted in Byrd, supra, 618 A.2d at 598, the majority errs in concluding that the trial judge could properly find that appellant‘s waiver was voluntary.16 The trial judge and the majority purport to focus on the circumstances of the delay insofar as they bore on appellant‘s state of mind to waive his Miranda rights. They state that appellant “did not show any apparent effects of being intimidated or threatened or being scared,” and that “there is no evidence of any fear, threats, coercion or force, physical or psychological....” Majority opinion at 984, 986. Of course, one can hardly expect such indications to be revealed in police-controlled videotapes, and third-degree physical torture does not exhaust the inquiry. See Marrero, supra note 11, 450 F.2d at 376 (cannot use delay to employ “condemned psychologically coercive ... practices“), quoted in Bond, supra, 614 A.2d at 901. It is unclear on what basis the trial judge and the majority decide to accord no weight to circumstances which are directly relevant to a determination of voluntariness in waiving constitutional rights.
The majority, having viewed the videotape, and deferring to the trial judge‘s evaluation of the detectives’ testimony, concludes that the trial judge‘s findings are supported by the record. Majority opinion at 986. Thus, the majority states that “the record of what transpired during the eight hours is sketchy, and we certainly agree with the judge that the detective‘s explanation of ‘large amounts of paperwork’ could not justify essentially ignoring appellant for eight hours or more in a position of obviously increasing physical discomfort.” Majority opinion at 985. See Frazier, supra, 136 U.S.App.D.C. at 187-88, 419 F.2d at 1168-69 (government has burden to show waiver was voluntary and intelligent) (citation omitted); Poole, supra, 161 U.S.App.D.C. at 295, 495 F.2d at 121. In other words, the record produced by the government shows that appellant was held incommunicado while handcuffed to a desk for up to eight hours.
But, while the majority concludes that sitting for eight hours handcuffed to a desk had become increasingly uncomfortable for appellant, it accords no apparent weight to this circumstance. Majority opinion at 985-986. Neither is the majority apparently concerned with the effect of the police conduct on appellant or with his perception of it. The majority acknowledges that from appellant‘s perspective the police “were playing ‘mind games‘” by leaving him alone for eight hours and by “letting him worry about the cooperation of his codefendants.” Id. at 986. Yet, appellant‘s perception appears to be of no concern to the majority in examining the totality of circumstances despite the fact that
A defendant‘s perception of his surroundings and what is happening as well as the objective view of police tactical conduct are part of the totality of circumstances that must be addressed in any waiver analysis. Miranda v. Arizona, supra, 384 U.S. at 445, 449-56, 467, 86 S.Ct. at 1612-13, 1614-18, 1624 (dangers of psychologically manipulative techniques, such as isolating the suspect, which were used to obtain confessions); Gayden v. United States, 492 A.2d 868, 871, 872 & n. 9, 873 (D.C. 1985) (coercion arising from “fresh face” psychological tactic employed by police combined with direct accusation of defendant‘s guilt to produce confession), on appeal, 584 A.2d 578 (D.C.1990), cert. denied, --- U.S. ---, 112 S.Ct. 137, 116 L.Ed.2d 104 (1991); Alexander, supra, 428 A.2d at 45, 51 (partial waiver of Miranda rights, followed by full waiver after rights “not scrupulously honored,” coercion).
The problem in the instant case extends, therefore, beyond the fact that the pre-waiver delay was far in excess of the six hour safe harbor under
Accordingly, I respectfully dissent from the majority‘s conclusion that the trial judge did not err in denying appellant‘s motion to suppress his statement. However, in view of the government‘s overwhelming other evidence against appellant, the
Notes
The Court shall inform the defendant of the complaint against the defendant and of any affidavit filed therewith, of the defendant‘s right to retain counsel, and of the defendant‘s right to the assignment of counsel if the defendant is unable to obtain counsel. The Court shall also inform the defendant of the defendant‘s right to have a preliminary examination if a felony is charged. The Court shall inform the defendant that the defendant is not required to make a statement and that any statement made by the defendant may be used against the defendant. The Court shall allow the defendant reasonable time and opportunity to consult counsel and shall release or detain the defendant as provided by statute or in these Rules.
An officer making an arrest under a warrant issued upon a complaint or any person making an arrest without a warrant shall take the arrested person without unnecessary delay before the nearest available federal magistrate or, in the event that a federal magistrate is not reasonably available, before a state or local judicial officer authorized by
In any criminal prosecution by the United States or by the District of Columbia, a confession made or given by a person who is a defendant therein, while such person was under arrest or other detention in the custody of any law-enforcement officer or law-enforcement agency, shall not be inadmissible solely because of delay in bringing such person before a magistrate or other officer empowered to commit persons charged with offenses against the laws of the United States or of the District of Columbia if such confession is found by the trial judge to have been made voluntarily and if the weight to be given the confession is left to the jury and if such confession was made or given by such person within six hours immediately following [her or] his arrest or other detention: Provided, that the time limitation contained in this subsection shall not apply in any case in which the delay in bringing such person before such magistrate or other officer beyond such six-hour period is found by the trial judge to be reasonable considering the means of transportation and the distance to be traveled to the nearest available such magistrate or other officer. [Emphasis added.]
Id. at 1400. The court made clear, moreover, that its own decision in Halbert, supra, 436 F.2d at 1234, “recognized that ‘[d]iscretion remains in the trial judge, under
period not to exceed 3 hours immediately following his [or her] arrest. Such person shall be advised of and accorded his [or her] rights under applicable law respecting any such interrogation. * * *
(b) Any statement, admission, or confession made by an arrested person within 3 hours immediately following his [or her] arrest shall not be excluded from evidence in the courts of the District of Columbia solely because of delay in presentment.