*1 Aсt, inapplica- both because CPPA relations be- to landlord-tenant
ble damages for seeking are appellants
cause tortious nature.22 injuries
personal the trial court
Finally, agree also we claim for loss of services of
minor child does he.
So ordered. HAIRSTON,
Timothy Appellant,
v. STATES, Appellee.
UNITED 00-CF-1045, 03-CO-417.
Nos. Appeals. Columbia
District of Court
Argued 2004. Nov. 17, 2006. Aug.
Decided thus, treats that claim damages, this court argue tive the trial Appellants failed ruling puni- abandoned. respect to its court erred *3 Hunt,
Waxman and Alicia Washington, brief, appellant. were Kolb, R. Chrisellen Assistant United Attorney, States L. whom Kenneth Wainstein, Attorney, United States Fisher, R. John Assistant United States Attorney filed, at the time the brief was Trosman, III, Roy Elizabeth W. McLeese Anjali Chaturvedi, Kolben, K. Carolyn *4 Curt, Grealy Suzanne Assistant United brief, Attorneys, States were on the appellee. REID,
Before Judge, Associate SCHWELB, WAGNER Senior Judges.* REID, Judge: Associate jury Hairston, A Timothy convicted appellant, of conspiracy to assault and neighborhood murder members of a rival men, faction of young in violation of 22-105a, -501, (1996);1 §§ -2401 D.C.Code (of first-degree murder while armed Ar- Johnson), § rion 22-2401 violation (recodified 22-2101); § possession at of a during firearm a crime or of violence dan- (related gerous first-degree offense to the Johnson), of Arrion murder violation of 22-3204(b) (recodified § D.C.Code at 22-4504(b)); § to kill assault with intent (Luis Delarosa) armed, in while violation of 22-501, (recodified §§ D.C.Code -3202 at 22-401, -4502); §§ of a firearm possession a during dangerous crime of violence (related offense to the assault intent Delarosa), to kill of Luis violation of (recodified 22-8204(b) § D.C.Code Mirabilio, 22-4504(b)); B. Rutledge § Peter pistol Juliana with- carrying court; appointed by license, P. whom Seth out a violation D.C.Code * - Judge Wagner Judge 22-1805a, Chief of the court at §§ 1. Recodified at D.C.Code argument. changed the time of Her status 401, (2001). -2101 Judge Senior on December 2005. Judge Judge Schwelb was an Associate argument.
the court at time His status changed Judge to Senior on June 22-4504(a)).2 22-3204(a) (recodified ANALYSIS § § se pro pleading, he Subsequently, filed Suppress Confession The Motion to as motion to which the trial court treated brief his main Mr. Hairston contends § under D.C.Code 23-110 vacate sentence should have written statement that his ground of assistance on the ineffective his Fifth Amend- because suppressed his motion. counsel. The court denied violated. rights were ment constitutional timely ap- complains direct Specifically, Mr. Hairston filed timely “deliberately He peal, appeal. [his] and a collateral withheld “[ijnstead (1) Mi- providing the trial court erred rights”; claims that randa custodial inter- rights prior on a vio- their suppressing his confession based Ari- tried to exact under Miranda v. officers rogation, lation of his from Hair- statement zona, [Mr.] (2) (1966); by confronting him with evidence holding ston an eviden- L.Ed.2d 694 hour.” He questioning him for least an tiary on his assistance hearing ineffective *5 conduct, that, based on this (3) maintains claim; granting of his motion counsel suppressed have court should judgment acquittal on the basis in its government The insists statement. respect to insufficiency evidence with “voluntarily Hairston (4) main brief Mr. charge; conspiracy finding mur- role in Johnson’s [Mr.] confessed his to prejudice he suffered substantial due waiving a Form PD-47 signing der improper prosecutor comments dur- after rate, that, his Miranda any rights,” ing closing arguments. and rebuttal We voluntary, and intelli- knowing, “made a he affirm. his Miranda rights] under gent waiver [of (Em- totality of the circumstances.” FACTUAL SUMMARY phasis original). charges The record shows that to file parties supplemen- asked the We Hairston, against and others with Supreme handed tal after the Court briefs Seibert, tried,3 v. its decision Missouri whom was indicted and resulted down neighborhood dispute from an intense be- 159 L.Ed.2d (2004). brief, young men in the Terrace supplemental tween Clifton In his (the this case quadrant argues “[b]ecause area Northwest of the Dis- Hairston Columbia) through obtained the months of ... involves a confession during trict of to designed sap question-first police tactics April through dispute 1997. The October warnings protective their the Miranda young belonging men to the between value, [trial reverse the should [c]ourt and the “1400 Clifton” rival this “1300 Clifton” ....” He that he violence, judgment claims resulting court’s] factions escalated into subjected ‘psy- a brutal series injuries, inсluding in several deaths and “was Johnson, precisely to chological ploys’ designed of Arrion and the murder will so that the Miranda warn- break his of Luis Delarosa. injury co-defendants, Jose non-conspiracy Mr. Hairston’s Blunt jury 2. The based all Bullock, liability (principal, guilty on found not convictions on substantive were and Donald abetting), joint principal, aiding rather or the indictment. all counts of liability. was conspiracy Mr. Hairston than He guilty of several other offenses. found not prison aggregate term of sentenced to an was years to life. ings, finally given, when were an empty Irving Detective arrived at the Homicide gesture.” government contends that approximately p.m. Branch at 11:00 Seibert “was on an entirely based different p.m. 11:30 He found “in the Mr. Hairston circumstances,” set and that “an essen- interview room located the third floor” upon tial factor which Seibert is based— table, building, sitting at a alone in an existence of unwarned confession small room.5 He was handcuffed ... present is not here.” chain that was attached the floor. Ac- Background Factual cording to Irving, Detective Mr. Hairston “quiet,” “injured,” was not discussing parties’ Before argu- ments, discomfort,” any “physical did not exhibit we set forth the pertinent factual distress,” context. The government presented “appeared “emоtional evi- showing August dence that on okay.” Mr. Hairston had been re- (“MPD”) Metropolitan Police Department strained this room from the time he was Detective Irving Michael C. obtained transported arrested and to the Homicide Hairston, arrest warrant for Mr. then an Branch, Irving’s until the time of Detective eighteen year-old male, relating arrival, is, for approximately one and murder of Mr. Johnson. After obtaining (10:00 half two hours p.m. 11:30 warrant, Irving advised the a.m.). p.m.-12:00 given He not been officers and detectives in the Third Dis- warnings before Detective trict of they the MPD4 “that if saw [Mr. arrived. Hairston, they place him should] *6 Irving When Detective entered the arrest not rights.” to advise him of his room, he sat at the down table across from Irving Detective delivered this instruction Mr. Hairston and introduced himself. De- to the other offices because he “wanted to Irving tective [Mr. “advised that Hairston] speak be one to [Mr. Hairston] he had been placed under arrest for mur- when he was arrested.” der and that [the detective] was interested September On approximate- at hearing story his side of the as to what ly p.m., 10:00 Mr. Hairston was arrested in happened day on the [Mr.] Johnson was Irving Third District. Detective Irving killed.”.6 began Detective to outline informed that Mr. Hairston had been ar- of “some the facts the case that [he] was rеsted being transported and “was to the of partic- aware as far [Mr. Hairston’s] [MPD],” Branch of by Homicide Ser- ipation.” He “knew that [Mr. Hairston] geant Kirk Sloan the Gun Recovery was in a that van drove from the 1300 Upon learning arrest, Unit. of the Detec- block of Clifton into [Street] [the scene Irving tive Sergeant instructed Sloan to murder] at time Johnson [Mr.] “place [Mr. in the Hairston] interview shot and Mr. he, room and to him killed.” Hairston did not leave alone and ask [that Irving,] speak attorney Detective would with an shortly any point be there thereafter.” during this conversation. Irving
4. point Detective worked in the during questioning, Fifth Dis- 6.At some De- trict; Lonon, he contacted members the Third Dis- Eugene Irving’s part- tective Detective trict because he believed that Mr. Hairston ner, Irving, entered the room. Detective eventually apprehended would dis- however, appears ques- to have done all trict. tioning. approximately 5. room’s dimensions were by unfolded, already spoken that he had tioned
As this one-sided conversation Chaney, another immediately Irving Am[o]s did not ad- Detective case, already “had Chaney of his rights.7 that Mr. Mr. Hairston vise arrest,” “Mr. and that Cha- placed Rather, he some of the details described Irving] a already given [Detective had ney that was death —the van Mr. Johnson’s Hairston told the Mr. some statement.”8 When killing; the names of used in the that Mr. did not believe that he the Detective people who were also involved statement, Chaney given Irving Mr. Hair- murder. told Detective listen,” him ... he Irving [if] “just “ask[ed] he him to Detective wanted ston of the state- proof’ to see the goal stage at this of the want[ed] his stated because that he wanted Hair- ment. Hairston “said was to make sure that Mr. Mr. interview facts,” proof.” see the ston was “aware some ... attempt speak “if did [Mr. Hairston] request response to Mr. Hairston’s [, Irving emphasize planned to] Detective Irving Detective left the proof,” “to see the Hairston] to listen [Mr. wanted [he] videotape aup room and set interview and not talk at that time.” placed He in another room. machine recording of in the machine”—a recounting “videotape of the murder While the facts Chaney Hairston, of Mr. “turned men- his interview —and rights; exercising hearing his during suppression risk of Mr. Hairston 7. When asked why given Hair- correct? trial he had not No, warnings, A: not correct. gave that’s ston Miranda several his Q: And, indeed, you told them the reason following responses, ex- as illustrated rights is because advise him of his suppression cerpts hearing and from the him, speak you correct? wanted to transcripts: Q: Well, sir, get you there wanted to Q: Well, sir, you [the time that told hаving him and talk him without District] Third not to advise Mr. Hairston get being you could read to him so you rights, you wanted to knew get *7 you out of information could whatever speak [the to about murder of Mr. him him; correct? Johnson], you? didn’t A: That's correct. A: That’s correct. Q: you Hairston] have read [Mr. Could Q: And, indeed, you the reason told them you did? rights his earlier than his because not to advise him of A: could have. I him, speak you to correct? wanted to Q: Why you? didn’t A: That’s correct. reason, I him to under- A: wanted No Q: you So didn’t want to run the risk knowledge a that was—had lot stand I invoking right his to remain silent Hairston case, he wanted to and that if about the speak the absence of or his not to in himself, help tell me what that he should counsel, correct? it was two happened, I him that and told A: Correct. story, may every I not have had and sides to Q: Now, back, you go to [co- to indicated story. the whole you a warrant counsel] that after obtained you any for instructed Mr. Hairston Q: you Why him call his mom didn't let to read arrested him not officers who rights? you read him his before rights; him his correct? prior anything to let him do A: I didn’t A: correct. That’s being rights. want I didn’t him read his Q: point Knowing well that some full speak with someone else call and him to rights; going to be advised his say. he was to they to do or what tell him what correct? Chaney guilty pleas certain to entered 8. Mr. A: Correct. Q: against charges Mr. Hairston doing, among and testified you oth- And what were you and his co-defendants. things, didn't want to run er was lawyer. a.m., volume down.” He then to “returned talk a At 12:51 after room, got being interview Mr. Hair- Irving approxi- [] with Detective for ston, hour, [Jbrought mately him back into the room with one Mr. Hairston answered monitor,” yes question the video on and turned the vid- each the card. Mr. initials, T.H., eotape put recorder so that Mr. Hairston also Hairston could his next question signed each Irving “speaking see Detective Mr. “line number Chaney.” five.” up The detective never turned the volume so Mr. Hairston could signed After Mr. Hairston the waiver “hear the contents of the tape.” Mr. Hair- card, again “the up,” interview started ston watched the video for “a little a proceeded Mr. Hairston to implicate him-
minute” so that he could see that “Mr. in self the murder of Mr. Johnson. When was, fact, Chaney custody when he Irving ques- Detective Mr. Hairston asked spoke to Irving].” [Detective Detective regarding tions his involvement Irving readily acknowledged on cross-ex- murder, initially “very vague” he gave an- amination that his purpose showing the swers, provide attempted very videotape to Mr. Hairston “to convince However, limited confession.10 Detective him of strength case [his] so that Irving questioned Mr. Hairston fully cooperate.” [Mr. Hairston] would “roughly an hour” able elicit detailed account of Mr. Hairston’s involve- Irving Detective returned to the inter- ment Mr. Although the murder. Hair- view room with Mr. Hairston and “asked ston refused allow statement to be him again help did he want in his videotaped, agreed “provide type- case, and ... did he want tell [Detec- statement,” eventually written signed Irving] story tive ...” Ap- side five-page prepared statement Detec- proximately ten minutes viewing after Irving. tive The interview ended at 3:18 image Chaney of Mr. speaking with De- a.m. Irving, tective “yes.”9 Hairston said Detective Irving then administered court denied Mr. Hairston’s warnings. Irving As suppress Detective motion to his statement. The “I testified: advised him I had to— court determined that Hairston was story before he told me his custody,” side “in but made his that I had to him rights.” advise of his statement after “he executed a PD-47 at addition, Detective took PD-47 out card 12:51 a.m.” In the court found no pocket, of his shirt read Mr. Hairston his dispute Irving “engaged *8 rights they card, appeared on the informational discussion with Hair- “advised that he attempted [him] had to answer the ston he which to advise Mr. first questions sign four on name Hairston of much of the information that line number five” of the card. The he obtained and of was aware related included, others, listed on the among shooting card to the ... of Johnson.” [Mr.] right remain to silent and the to This informational not discussion was Q: inquired 9. impact Defense counsel point gave about And he from that forward information; you videotape some isn't Mr. Hairston: that correct? A: That's correct. Q (Defense Counsel): you And after tape, say showed him the would it be fair to any 10. Detective not *9 States, 450, Resper v. 793 A.2d United 456 statement. (D.C.2002) v. (quoting McIntyre United (D.C.1993)). States, 940, 634 A.2d 943 Principles Applicable Legal Miranda, princi govern turn now the legal “[t]he We Under is ples guide constitutionally precluded by our “In ment which will discussion. reviewing judge’s the trial denial of a mo Fifth Self-Incrimination Amendment’s tion suppress using statements on firom trial a Miranda Clause at defendant’s 774 solely statement made while in cus- circumstances it on whether is
tody unless the defendant has been ad-
knowingly
voluntarily
and
made.
(as
vised
right
remain silent
a
Elstad,
309,
Oregon
298,
v.
470
105
U.S.
safeguarding
means of
the privilege
(1985).
1285,
And,
222
S.Ct.
84 L.Ed.2d
self-incrimination)
against compulsory
and
“prewarning interaction
defen-
[between
represented
by
attorney
be
an
before
police]
dant and the
not
[does]
render
States,
interrogated.”
is
Hill v. United
warnings
Miranda
ineffective to a reason-
(D.C.2004)
435,
A.2d
858
441
Mi-
(citing
suspect,
able
waiver
[where
defendant’s]
randa,
442,
supra,
On Court de- her rights been denied had, of Miranda the The Court concluded that conflicting goals noting scribed she interrogation the “unwarned ... “question and the first” tactic: Whereas systematic, exhaustive, questioning “Miranda addressed interrogation prac- skill,” managed psychological and ... ... likely tices [an disable individu- police when “the were finished there was making from free al] and rational choice little, anything, if of potential speaking, suspect about and that a held unsaid,” left that “the police did not advise be adequately effectively must advised prior that her [her] statement could be of guarantees,” the choice the Constitution used,” and, finally, that it “would have “object question-first the is to render been to regard reasonable the two sessions Miranda warnings by waiting ineffective parts 616-17, of a continuum.” Id. at as particularly for a opportune give time to plurality S.Ct. 2601. The concluded them, after already has con- that “[t]hese cirсumstances must be seen fessed.” Id. at (quot- S.Ct. 2601 challenging comprehensibility as Miranda, supra, 464-65, ing 384 U.S. efficacy of the Miranda warnings 1602) (citations 467, 86 S.Ct. and internal point that a person reasonable the sus- omitted). quotation marks pect’s shoes would not have understood help guide To future examining courts convey message them to that she re- techniques, similar interrogation especially tained a continuing choice about to talk.” Elstad, in light of supra, plurality out- 617,124 Id. S.Ct. 2601. lined test “that bear[s] multi-factor Elstad, In burglary after the of the whether warnings mid- delivered Gross, home Mr. and Mrs. Gilbert enough stream could be effective to accom- police received information that Michael ...” Id. plish objective] their Elstad, neighborhood, who lived in the (1) S.Ct. A court is to consider: might have burglary. been involved completeness “the and detail of ques- warrant, Armed with an arrest tions answers the first round of went to Mr. Elstad’s home. Mr. Elstad’s (2) interrogation,” overlapping “the con- mother admitted the and led them (8) statements,” tent of the timing two “the eighteen-year-old to her son’s bedroom. (4) setting second,” of the first Later, spoke one of the officers with Mr. “the continuity police personnel,” and living Elstad in the room his home. (5) degree “the to which the interrogator’s person When asked whether “he knew a questions treated the rоund con- second Gross,” name Mr. Elstad “said the first.” Id. tinuous did, yes, he and also added that he heard on, plurality stating then went after robbery there was a at the Gross test, analyze the above multi-factor house.” The officer indicated that he “felt respondent effectively whether burglary. [Mr. Elstad] was involved” Kennedy, concurring plurali- warning 14. Justice statements are related to the ty's judgment, separate opinion argu- wrote a prewarning substance of statements must be ing plurality’s broadly.” that the test too “cuts excluded unless curative measures are taken Kennedy Id. at 2601. Justice S.Ct. postwarning before the statement is made.” suggested "admissibility postwarn- that the designed Id. "Curative measures should ing gov- statements should continue to be person ensure that a reasonable in the sus- principles erned Elstad unless pect's import situation would understand the two-step strategy employed.” deliberate warning and effect of the Miranda circumstances, Id. those where "the delib- Miranda waiver.” used, two-step strategy post- erate has
777 tactics or ‘Yes, inherently police coercive done responded, I was there.” Mr. Elstad being process to due that process methods offensive As Mr. Elstad was office, his involuntary to the father taken Sheriffs the initial admission render arrived, [pa- door of “opened the rear suspect’s will to in- and undermine his told car son: ‘I and admonished trol] are read to they once rights voke his get into trou- you you going were have, however, A handful of courts him. ble, You never You wouldn’t listen to me. relating con- applied precedents our ” Elstad, supra, 470 at 300- learn.’ under coercive circum- fessions obtained one Approximately 1285. S.Ct. involving wholly stances situations office, after his arrival at the Sheriffs hour admissions, pas- voluntary requiring Mr. Elstad was read his Miranda rights. in sage or break events before a of time rights gave He waived these then second, can fully warned statement be officers. incriminating statement voluntary. Far from establish- deemed 301-02,105 1285. Id at S.Ct. rule, courts to avoid ing rigid we direct
The trial court in Elstad excluded one; presuming no there is warrant home, “I suspect’s made at his initial statement Elstad effect where coercive there,” ground statement, Mr. Elstad though technical- inculpatory Miranda, not been advised of his Miranda “had volun- ly in violation admitted the written confes- rights,” but tary. office, at the Sheriffs after sion made (footnote 317-18, 105 Id. at S.Ct. given and had waived his he had been omitted). Supreme Court continued: The Id.
Miranda
rights.
S.Ct.
fact,
whether, in
inquiry is
The relevant
“that a
Supreme
1285. The
Court held
also voluntari-
second statement was
responded
un-
suspect who hаs once
ly
inquiry,
in
such
made. As
not
yet
questioning
warned
uncoercive
is
the sur-
finder of fact must examine
thereby
rights
from
waiving
disabled
rounding circumstances and the entire
confessing
given
after he has been
respect
conduct with
course
warnings.” Id. requisite Miranda
evaluating
in
the voluntari-
reaching
holding,
its
ings to the appellant around 1:30
Id.
gation,
it
impact
and did
have a coercive
police.
regard
While one could
*15
on
first
Mr.
say
Hairston’s decision to
playing
videotape
of a silent
Chaney
Mr.
“yes,” he wanted to tell his side of the
Irving’s
as Detective
give
effort to
Mr.
story,
ultimately on his decision to Hairston
impression
that
Chaney
Mr.
confess.
had
to a
in
confessed
role
the murder of
Mr. Johnson and
implicated
appel
had
Initially, we note
saying, “yes,”
I
here,
just
lant
Mr.
statement
Hairston’s
(Mr.
want
to tell my
story
side of the
reasonably
interpreted
could bе
as man
Hairston),
is not
saying,
the same as
ifestation of
guilt
consciousness
(Mr.
“okay, you got me”
Gonzalez-Lau-
part and a voluntary desire to share his
zan). “[0]kay, you got me,” is an obvious
own version what
happened. And,
had
incriminating statement, whereas, “yes,” I
assuming that
interpretation
latter
want to tell my
story
side of the
not.
is
would
Mr.
phase
make
Hairston’s
one
But,
assuming,
even
without
deciding,
statement
inculpatory, it falls within El
Irving’s
phase
Detective
first
tactic was
cautionary
stad’s
declaration
“there is
the functional equivalent
interrogation,16
warrant
presuming
no
coercive effect
it
statement,
resulted in
incriminating
no
suspect’s
where the
initial
inculpatory
and did not run afoul of the essence of
statement,
though technically in violation
government
Miranda:
“The
is constitu-
Miranda,
voluntary.”
470 U.S. at
tionally precluded by the Fifth Amend-
318,
questions and answers
Seibert,
phase in
we
Unlike the first
interrogation!;;]
of
Irving’s
say here that Detective
cannot
of
two state-
overlapping
content
Mr. Hairston
of
questioning
unwarned
ments^]
“systematic,
so
exhaus-
phase
the first
timing
setting
and
of the first and tive,
psychological
with
managed
[statements;]
second
skill,”
fin-
was]
“the [detective
when
continuity
police personnel^]
of
little,
of in-
anything,
if
there was
ished
interrogator’s
degree to
which
Id. at
unsaid.”
potential left
criminating
as
questions treated the second.round
Indeed,
Detec-
after
terms of understanding rights[,] his and Mr. impor- Hairston does not undercut the having ability to participate the decline tance of warnings.
783
Arguments
Ramsey,
Other
the trial
did not err in
court
Hair-
refusing
hearing
to hold
on Mr.
dispose
oth
We
of Mr. Hairston’s
pre-
§
motion.
ston’s 23-110
Mr. Hairston
arguments summarily.
er
He maintains
allega-
no
his
support
sented
affidavit
the trial court improperly
denied his
cases,
tions,
required
have
in other
we
2001
February
pro se
“Pe
post-conviction
and the trial court found his assertions
Subji
for
Corpus
tition Writ Habeas
Ad
(Mr.
trial counsel
his
Hair-
regarding
ciedum,” which the
as a
court “treatfed]
ston’s)
“palpably
statement
pursuant
motion to vacate
sentence
Ready, supra,
A.2d at 235
false.” See
§ 23-110.”
D.C.Code
In that motion he
(“The
cred-
absence of an
or other
affidavit
attorney
claimed that his
rendered ineffec
persuades
...
us that the trial
proffer
ible
tive assistance of
relating
counsel
did not
to hold a
declining
court
err
confession,
requested
arrest and
(footnote omitted);
hearing.”)
also
see
evidentiary hearing. The trial court de
States,
Young v.
639 A.2d
United
his request
evidentiary
nied
for an
hearing
(D.C.1994). Moreover,
has
Mr. Hairston
because his claim
“that
counsel failed
allegatiоns
appeal
raised some new
on
pursue
the issue of his statement to the
preserved
not
which have
in the trial
police,”
palpably
“is
false.” The motions
hence,
court, and
we do not
them.
consider
judge,
presided
who also
Hair
over Mr.
n.
Young, supra,
See
at 97
639 A.2d
trial,
seventeen-page
ston’s
in a
concluded
(citations omitted); Southall v. United
(in
pre
order which she reviewed evidence
183,189 (D.C.1998).
States,
A.2d
trial and
perform
sented at
trial counsel’s
ance) that counsel’s
performance was
argues
Mr. Hairston
that the trial
deficient, and that Mr.
failed to
Hairston
granted
court should have
his motion
satisfy
prejudice
prong
Strickland v.
acquittal
judgment
because there was
Washington,
466 U.S.
charge
insufficient evidence of the
of con
(1984).
Compelling regarding alleged evidence that he denied “fair trial” conspiracy presented by Antoine Ev prosecution’s closing argument. He com ans, guilty who entered pleas two counts plained at government trial that the mis (one second-degree murder while stated the of conspiracy by analogizing law armed), conspiracy and dan assault with a “conspiracy liability membership gerous weapon, and Chaney, en who team”; basketball prosecutor and that the pleas conspiracy, tered manslaughter expressed opinion a personal armed, saying, possession while of a firearm guilty.” “These men are requested He violence, during relating crime of all mistrial, which the court denied. the crimes which Mr. Hairston was denying request mistrial, for a the trial charged. The evidence revealed that Mr. Hairston, “I court said: believe that each of Evans and Mr. dis Chaney *19 you’ve though issues that cussed and raised not invalid agreed revenge to exact points of against persons in contention are ones that can the 1400 be block Clifton already remedied or Terrace because actions and have remedied.” words to two As the Together prosecutor’s conspiracy argu members of faction. ment, faction, with others from the block the trial judge indicated that she (and did) voluntarily knowingly actually give Hairston would instructions participated agreement by obtaining of conspiracy as to the law at the close of guns and ammunition joining arguments, efforts to all counsel and that in their defense, put to on a required not ston was defense counsel could closing arguments, done.” damage some arguably “still analogy. the basketball respond to it would judge The determined comment, men prosecutor’s “[t]hose The on this give an instruction appropriate to the guilty,” prosecutor came after are instructions, jury during final issue the spent asking jury the to find time respond to to her defense counsel invited asking jury the guilty. defendants After Later, without suggested instruction. verdicts, prosecutor to the guilty return sug- counsel objection, defense waiving right thing by saying: “There is one closed judge the trial in- language which gested guilty.” men are to do this case. Those final instruc- into her corporated verbatim the view that the judge expressed trial The tions.18 “appeared to prosecutor’s [her] comment something ... precariously to be close to prosecutor’s Our review the jurors perceivе the as counsel’s would arguments, and the closing and rebuttal range ... ... the opinion, within [b]ut thereto, objections response to court’s illegitimate ... argument pros- [or] it’s not judge properly us that the trial satisfies judge ecutorial misconduct.” The reminded request for mistrial.19 denied the defense releasing jurors for counsel that before the prosecutor’s considering After whether the day, had instructed them “that the she so, if “the improper, were comments are of not arguments of the counsel course remark, relationship its gravity of the judge also informed coun- evidence.” made guilt, court corrective whether give jury sel that would another she instructions, gov strength and the instruction, during closing instructions.17 case,” conclude, “with fair ernment’s we assurance, hap all that During argument, pondering after prosecu- rebuttal [any] stripping erroneous pened tor declared: Mr. Hairston didn’t without “[W]hile whole, judgment put on a defense which is his action from the absolute ” swayed by [any] er substantially right, Mr. Bullock and Mr. Blunt did.... was not States, timely v. 859 A.2d Counsel for Mr. Hairston made a ror.” Williams United (D.C.2004) (quoting Diaz v. objection requested a mistrial. 141-42 (D.C. States, 716 A.2d response, despite the trial court noted that United 1998)) (other quota- Hair- citations internal prosecutor’s statement that Mr. instructions, present an affir- During closing testify, or call witnesses оr judge her jury: mative defense. told instructions, portion of her final In an earlier arguments The statements and judge jury that: informed lawyers They’re only are not evidence. in- government is on the The burden you understanding tended assist guilty beyond prove a reason- the defendant Occasionally attorney may evidence. proof never able doubt. This burden personal or appear to state his or her belief throughout The law does the trial. shifts opinion believability of evidence. [to] prove require a her not defendant personal opinions are not evidence Such produce any evidence. innocence or by you as and should not be considered such. 19.Although argues in his brief Mr. Hairston against right self- Fifth Amendment that his 18. The instruction read: govern- was violated incrimination fact that he did not reference Every in a case has an ment’s defendant criminal defense, explicitly raise a put did not testify call on a and not to absolute trial, *20 argument at Amendment present affirmative defense. Fifth witnesses an hence, Young, preserve supra, 639 guilt did it. any not not draw inference of You must any A.2d at 97 n. 8. against because he did not defendant omitted). tion marks The right speak curative instruc- silent or his not to given by tions jury the trial court to the absence of counsel.” Irving Detective were suffiсient in case this to overcome get “wanted to in there and talk to him any improper by prosecutor. comment having rights being without his [Hairston] States, See Harris v. United 602 A.2d him,” Irving “get read to so that could (D.C.1992) (the jury is presumed to get whatever information could out of [he] have followed trial court’s instruc- him.”
tions). apparent It is from that foregoing reasons,
Accordingly,
foregoing
Irving
making
deliberate
affirm
judgment
we
of the trial court.
pre-
effort to insure that
protection
scribed
to counteract
So ordered.
in
coercion “inherent
interroga-
custodial
SCHWELB,
Judge, concurring:
Senior
namely,
of rights
the advice
tion”—
—be
until
withheld
he had conditioned Hairston
States,
In Dickerson v.
United
psychologically
ready
to be
to waive those
Nevertheless, noting I think it worth that, realistically, “the coercion inherent and unfamil- highlight To the isolation begin interrogation” custodial does not surroundings, iar the manuals instruct when the detective asks air police display an of confidence question. precede first Events that inter- guilt and from outward suspect’s Here, Hair- rogation can also be coercive. only to maintain an interest appearance p.m. at 10:00 He was ston was arrested confirming certain details. interrogation in a room and placed small 449-50, (empha- 384 U.S. at S.Ct. opportu- to a He had no handcuffed chair. (footnote omitted). original) sis in attorney mem- nity talk to an Irving family. ber Detective has not shown that Although When Hairston midnight, here, rule of Miranda was violated p.m. arrived between 11:30 Hairston had thus and re- isolated use to his Irving undoubtedly attempted to for a least one and a half hours. strained advantage the intrinsic coerciveness of By time the Hairston detective advised circumstances, and he succeed- Hairston’s rights, of his been in this Hairston had eliciting ed in statement an hours, situation for almost three and the might from Hairston which Hairston well until interview did not end 3:18 a.m. if had not contrived not have made of his Mi- inhibit Hairston’s exercise Irving’s handling of Hairston’s randa have admonished rights. We closely process, de- case resembled the re- police previous on several occasions handbooks, which was scribed “the impropriety” of garding the “obvious the Court Miranda: criticized to inform deliberate failure are manuals that officers told suspect promptly rights of his criminal con- “principal psychological factor States, Hill v. United under Miranda.” tributing interrogation to successful (D.C.2004) (citations A.2d privacy being person alone — omitted).20 “prompt- I do believe efficacy interrogation.” The ques- time ly” “any should mean before explained this tactiс has been as follows: especially the defen- tioning begins,” when interrogation practicable, “If at all from has and isolated dant been restrained place investigator’s should take counsel, subjected to thus family and or at in a of his own office least room intimidating for several atmosphere, an subject choice. The should be de- pleasure I therefore take little hours. advan- prived every psychological re- police tactic sustaining the kind of may In his home tage. own me, it repre- To in this record. confident, flected indignant, or recalcitrant. prospective defen- exploitation sents keenly aware of his He is more ignorance; dant’s fear more reluctant tell his indis- case, ad- inculpatory he had been distinguishable statement this how- 20. Hill is from before ever, rights. vised in Hill the defendant made because *22 designed least exploita- report to alleviate such and recommendation of the Board tion. Responsibility Professional respect thereto, and the from letter Bar Counsel “The Amendment [Fifteenth] nullifies August 4, 2006, dated advising the Court sophisticated simple-minded as well as that Bar exception Counsel does not take Wilson, Lane v. modes of [evasion].” report to the and recommendation of the 268, 275, L.Ed. Board Respоnsibility, on Professional it is (1939). The rule of Miranda is not the day this 24th of August, 2006 equivalent of liberating Amendment to Serguei ORDERED that the said Dan- Constitution, it, too, but constitution- is ilov, hereby is disbarred consent ef- ally Although I based. find no authority fective forthwith. The effective date of here, for reversal courts should alert to respondent’s run, disbarment shall for re- “sophisticated” rights nullification of the purposes, instatement from date re- secured Miranda. The present record spondent files his affidavit pursuant disquieting regard. this XI, 14(g). § D.C. Bar Rule order, shall publish Clerk this but shall publicly affidavit not be disclosed except otherwise made available upon
order upon of the Court or written consent of respondent.
The Clerk shall cause a of copy this order to be transmitted the Chairman of Serguei Matter of the Board on Responsibility Professional DANILOV, Esquire. and to respondent, thereby giving respondent of provisions notice of Rule A of Bar Member of the District of XI, § § 14(g), and which set forth cer- Appeals, Columbia Court of Bar tain and responsibilities of disbarred Registration No. 475622. attorneys and the effect failure com- No. 06-BG-906. ply with provisions. these District Appeals. Columbia Court of
Aug. 2006. WASHINGTON,
BEFORE: Chief Judge; FARRELL, Judge; Associate In the M. Matter Frederic TERRY, Senior Judge. BRANDES, Esquire. A Member of the Bar the District of
ORDER
Appeals,
Columbia
Court
Bar
PER CURIAM.
Registration No. 466789.
On considеration of the affidavit of Ser-
No. 06-BG-857.
Danilov,
guei
wherein he
consents
dis-
District of
Appeals.
Columbia Court of
from
barment
the Bar of the District of
Aug.
Filed
pursuant
§ 12
Columbia
of Rule XI of
Governing
Rules
the Bar
Dis-
WASHINGTON,
BEFORE:
Chief
Columbia,
trict of
which
has been
affidavit
FARRELL,
Judge;
Judge;
Associate
Court,
filed with the
Clerk
this
the TERRY,
Judge.
Senior
did
take
notes
being
change
interview,
there was a
in his level of
during
stage
this
of
because
forthright
you?
“to
[Mr. Hairston's]
did
want
break
con-
(Detective Irving):
A
No doubt about it.
centration.”
773
equivalent
grounds,
of interrogation,
findings
court’s]
functional
defer to [the
we
fact,”
v.
coercion,
evidentiary
Jones
United
there
no indicia
under
were
(D.C.2001)
States,
277,
779
(citing
A.2d
281
As
trial
stat-
circumstances.
court
E.A.H.,
(D.C.
836,
In re
A.2d
838
612
ed:
1992));
is,
findings
that
review
“[w]e
find
Court cannot
that
the detec-
only
error,
clear
historical fact
really
tive’s actions were
to
analogous
give due weight to inferences drawn from
of conduct that
type
the court has
judges.”
(quot-
those facts
Id.
resident
unconstitutional
found
cases like
Guitezrez,
ing
v.
92
United States
F.3d
Innis,
291,
[v.
Island
446
Rhode
U.S.
(7th Cir.1996)).
468, 471
“We ‘view the
1682,
(1980)
100
64 L.Ed.2d
S.Ct.
297
]
suppression
presented
evidence
[Mauro,
520,
or Arizona v.
481
107
hearing in
light
most favorable to the
1931,
(1987).]
S.Ct.