*1 un- payment obligated to make District was agreement in order to the settlement
der See of interest owed.6
compute the amount Associates, (holding at 312
Pierce appropriate for determination
that remand is ac- began interest
of the date on which
crue). proceedings.
Remanded for further JONES, Appellant, R.
Elton STATES, Appellee.
UNITED
No. 96-CM-1220. Appeals. of Columbia Court of
District
Argued 1998. March March 1999.
Decided issue, agreement or at some later of the settlement reach this Since the trial court did not was obli- we do not decide whether the District time. immediately gated payment upon execu- máke
one-way ap- street. As the three officers car, they proached appellant in the scout saw drop ziplock bags at his feet. Officer two quickly the car all stopped Groomes and' officers, armed, in full uniform and alighted approached group and sidewalk. officers, appellant
At the approach of the appeared panic; picked up he a beer and mouth. bottle moved it to his One of the (each picked up ziplock bags rock) contained a white and handed them Groomes who ordered the two men standing appellant next to cross to the other side of the street. Groomes, Officer asked motions Lamar, G. Christian Public Defender Ser- leave,” if replied: court “free
vice, with whom Klein James and Sarnia [I] believe at that time he knew he was —I Fam, Service, Public Defender on were officers, mean there’s three and I mean he brief, appellant. for going anywhere. wasn’t go We were Nellor, A. Susan Assistant United States him, around free so he wasn’t to leave— Attorney, Mary Leary, with whom L'ou Unit- saying he’s panicking that all he —he Attorney ed States at the time the brief was he pick up, does is drink. seen us it When filed, Fisher, and John R. and Thomas C. he’s like all I do is drink. Black, Attorneys, Assistant States The three officers surrounded brief, on appellee. for wagon called for a unit to conduct a REID, test. Before field Officer Groomes continued: SCHWELB and Associate MACK, Judges, Judge. Senior then in And the meantime as we were test, waiting for I think the field then we MACK, Senior Judge: asking questions, you started him like court, appellant In this challenges know, knew, know, you if he where he possession his conviction on one count of a from, brought it he it who from. (in controlled substance violation of D.C.Code you say any- But he want to know didn’t 541(d)), § and the denial his motion to 33— thing about that. suppress statements him made while in íjí sj: t|« ‡ "k' custody and before been he had advised of like, rights. agree know, his Miranda1 might you We with his have asked and, therefore, contentions reverse. ID everything. and his name and test, waiting for field we were
While
he
asking
kind of
him if wanted to volun-
I.
brought
teer
information on who
Briefly,
facts
summarized as
from, stuff like that.
follows: At the hearing
pre-
on
suppress,
government
trial motion to
At the
cross-examination
beginning of
Groomes,
counsel,
interrupt-
called Officer Diane
court
who testified
defense
the motions
p.m.,
that
9:30
to make
observation that
evening,
a November
ed
the initial
driving
(along
repeat
throughout
pre-
she
a scout car
it was
with two would
—that
patrolmen)
they
foot
saw
to find that
pared
(whom
(and
two other men
the officer had indicated as
Groomes knew “real
well”)
much).
standing on the
of a
sidewalk
narrow
Arizona,
1. See Miranda
ing repeated representations by
the officers
go
would let him if he
told
We conclude
Miranda safe-
got
drugs,
got
from where he
“I
scared”
guards
play
person
come into
whenever a
got
guys
and said
it “from the
across
subjected
express
to either
*3
the street.”
questioning
junctional equivalent.
or its
say,
“interrogation”
That is to
the term
hearing
After
arguments,
oral
the motions
only
under
express
Miranda refers not
to
court ruled that
denying appellant’s
questioning,
any
but also to
or
ivords
ac-
(1)
suppress, concluding:
motion to
ap-
(other
part
police
tions on the
of
than
pellant
custody
at the time he made
normally
those
attendant
to arrest and
(2)
statements,
alleged
that no Miranda
custody)
police
that the
should know are
warnings
time,
given prior
had been
to this
reasonably likely
incriminating
to elicit an
(3)
but
it did “credit” that the state-
response
suspect.
[Emphasis
(that
by appellant
ments made
he
hold-
supplied; footnotes omitted.]
else)
ing
drugs
sponta-
for someone
The court further
that “[interrogation
noted
(presumably)
neous and
therefore admissible.
... must reflect
compulsion
a measure of
(and conviction)
A bench trial
followed imme-
beyond
above
custody
that inherent
diately.
300,
itself.” Id. at
place. supra, See Derrington, 488 A.2d at If these officers have known that *4 sequence likely this of events would have applied
We have
equivalent
compelled inculpatory
exculpatory
or
state-
of questioning” prong
convict,
to various factual situ-
appel-
ments used to incriminate and
ations,
(1)
including:
questions by
rhetorical
compulsion,
lant has
of
been the victim
and
(In
E.G.,
officers
re
482 A.2d
1248
interrogation”
thus the “custodial
and the
(D.C.1984) (holding
ques-
officer’s rhetorical
statements were inadmissible at trial.
tion,
is,”
gun
“I
money
wonder where the
and
aware,
acutely
gov
We are
and the
subsequent
legal
reasonably
to
frisk
like-
us,
reviewing
ernment
an
reminds
(2)
ly to elicit an incriminating response));
appeal
sup
of a motion to
denial
questions
victim,
directed to the
but over-
press,
scope
our
is
Brown v. United
limited.
by
States,
heard
(Spann
defendant
v. United
(D.C.1991).
States,
590 A.2d
1020
We
(D.C.1988)
551 A.2d
(holding
1350-51
a
must
sup
review the evidence offered at a
victim’s unforeseeably
accusatory
loud and
pression hearing
light
most
to
a
favorable
response
question
to an officer’s
made in
prevailing
party, and we must draw all
proximity
close
to defendant was not reason-
party’s
inferences in
favor.
ably likely
incriminating
to elicit an
re-
States,
Peay v. United
597 A.2d
(3)
sponse));
by an
answers
officer in re-
(D.C.1991). However,
whether
evidence
sponse to
questions
continued
defendant’s
establishes that
statements were
v. United
Wilson
taken in violation of his Fifth Amendment
(D.C.1982)(holding
ques-
officers’ answers to
rights
is a
which we
of law
consider
tions
by
initiated
reasonably
defendant were
Brown,
de
supra.
novo. See
likely to elicit
incriminating
an
response,
where
exchange
part
police
of
offi-
Our de novo review of the motions
(4)
cers’ deliberate strategy));
exchanges
and
application
findings
court’s
its
to
of
Innis’
(Morris,
of
place
common
greetings
supra,
standard,
legal
subsequent
ap
denial of
and
(holding police
at 438
detective
pellant’s
suppress
incriminating
motion to
could not
that a
exchange
have foreseen
brief
statements, leads us to a different conclusion
of commonplace greetings
prompt
would
de-
than the
believe the
trial court.
officers’
statements)).
fendant to
inculpatory
make
equiva
conduct constituted the “functional
case,
questioning”
we must
lent of
as defined
Innis.
decide
whether
police
Specifically,
have
officers
have
appel-
known
the three
should
reasonably likely
lant was
to
in approaching
offer incrimina-
known that their
and
actions
statements;
examine,
ting
only isolating
retrieving
plastic
must
the two
appellant,
we
events,
immediately
individual
drug bags,
asking appellant
a
but
series
events.
and
(1)
Here
police
likely
compel
uniformed
for identification
would
an ex
officers
quickly
ownership
drugs.
exit a
cruiser
of the
they
planation regarding
marked
when
Moreover,
entirety,
observe
other
the offi
and two
men
viewed in their
street;
(2)
one-way
beyond
“normally
sidewalk of a
cers’
conduct
narrow
actions went
custody.”
approach
observe
attendant to arrest
su
and
300-01, 100
drop
ziplock bags
appear
panic;
two
at
S.Ct. 1682.
pra,
U.S.
However, in
case the
spontaneity.
free
leave
this
Mr.
was not
(and
closely
officers’
more
allies with
conduct
three armed
isolated
surrounded
affirmative
actions associated with
experienced)
had
apparently
officers who
than
equivalent
questioning,”
“functional
drop
containing
ziplock bags
seen
conduct
passive
with the
and incidental
given the
white
He should have been
rocks.
permits
As
spontaneity.
phrase
warnings. The
“custodial
noted
1985:
Court
design aptly
interrogation”
definition and
by the
necessity
warning
use
prohibits
a rule
The Fifth Amendment
describes
only com-
protect
right
prosecution
in its
in chief
in order
constitutional
case
very
testimony.
simple
pelled
The
Failure
administer
self-incrimination.
rule,
presumption
recitation,
warnings
a
required by
poses no Miranda
creates
compulsion. Consequently, unwarned
hardship on the law enforcement officers who
voluntary
statements that
otherwise
a
freedom of
have reason
curtail
citizen’s
meaning
Fifth Amend-
within
movement.
from
ment
nevertheless be excluded
must
us,
arguments
reflecting
before
ex-
evidence under Miranda.
research,
prompt
haustive
nevertheless
us to
Elstad,
306-07,
supra, 470
appeal
remind that
is an
from convic-
Accordingly,
(emphasis
original).3
following
government,
there-
trial.
we
fore,
placed
position
in the unenviable
*5
Reverse.
reminding
“although
us that
we
bound
findings,”
accept
trial
we
the
court’s factual
SCHWELB,
Judge, concurring
Associate
reject
finding
nevertheless
the
that
judgment:
in the
custody
appellant
interrogated.
was in
when
However, on this record we cannot do so.
agree
inculpatory
that Jones’
statements
I
facts,
developed
government’s
analysis,
The
the
suppressed. My
should have been
speak
however,
own witness
for
The set-
majority’s
themselves.
in some
differs from the
ting
compel
the circumstances
the con-
respects.
interrogation.”
po-
clusion of “custodial
The
First,
requires
I
not sure that this case
am
appellant
custody,
lice
that
in
the
kneiv
was
application of the
Rhode Is
the
doctrine
that
in
kneiv
kneiv
was
land v.
446 U.S.
S.Ct.
unequivocally
custody, and the trial court
(1980),
In
the
its
Jones
we
functional
custody,
difficulty
present
ascribing
this was a blatant Miranda1
that the cases
violation,
point
regard
the
without
to Innis issues.
a
continuum between coercion
statement, notwithstanding
police ob-
may
that the
2.
tells us that "no distinction
be
Miranda
statement,
inculpatory
reasoning
and state-
pre-Miranda
drawn between
statements
that
a
tained
alleged
merely exculpatory.
If a
ments
be
voluntary and not
unwarned statement was
truly exculpatory
made
in fact
statement
Here, however, not vol-
coerced.
did
course,
would,
prosecu-
never
used
statement, following
post-Miranda
a
unteer
476-77,
tion."
1602.
S.Ct.
pre-Miranda
coerced
statement.
holding
3.
also note that our recent
Davis v.
Arizona,
Miranda v.
1998)
(D.C.
IQI beyond Terry stop rip- Turning proceeded the inter- had a whether custodial, rogation my ened arrest at the time that review to a formal government record satisfies me that the has Jones made his admissions. court, point.
waived the trial Finally, noting the I think it worth obvi- prosecutor objection judge no made holding ous: Our that Jones’ statement repeatedly that stated Jones was suppressed does not affect should have been Indeed, judge purposes. him, remainder of evidence attorney: prepared declared to Jones’ “I’m testimony including that Officer Groomes’ to find that based on [Jones] ground. dropped drugs testimony you’ve already gotten,” precludes Nothing in this court’s decision she declined to entertain further defense evi- suppressed retrial without the of Jones state- point. prosecutor dence on the re- Indeed, ment. a new trial be unneces- silent, implicitly acquiescing mained thus in a sary judge, excluding if the trial after ruling which limited the on the custo- record calculus, her statement from nevertheless dy Subsequently, during argument, issue. beyond a doubt satisfied of Jones’ prosecutor effectively conceded that guilt. custody: Jones was in reasons, foregoing For I concur in the government’s position It’s the these judgment. suppressible statements are not because they were made in response
interrogation. The officer stated that she any
was sure she did not elicit re-
sponse for the defendant while he ivas in custody..
their added.)
(Emphasis
“Parties theory not assert one at trial theory and another on appeal.” Haches v. SILVER, Appellant, Salome
Haches, (D.C.1982) (cita 396, 446 A.2d omitted). “Points asserted with suf v. precision ficient distinctly to indicate STATES, Appellee. UNITED party’s normally spurned thesis will appeal.” v. Hunter United 606 A.2d Anderson, Appellant, Keith (D.C.) (citations quota and internal omitted), denied, tion marks cert. L.Ed.2d States, Appellee. principles apply rigorously “These 95-CM-490, Nos. 95-CM-585. government as do to a criminal defen dant who liberty.” faces loss of his Appeals. District of Columbia Court Porter, United States v. 642 n. 25, 1999. Submitted Feb. (D.C.1992). 18, 1999. Decided March my opinion, government’s effective concession in trial court that Jones was unnecessary makes to decide issue, I see no reason do so. government,
Without waiver easy would not be an one for me. E.A.H., held in In re 838- (D.C.1992) stop a Terry does not
implicate rights. The record be- judge’s
fore us is truncated on account sure,
unopposed ruling, and I am not record,
basis seizure