Ruffin v. United States

(2) the court abused its discretion trial MACK, Before FERREN and refusing portions disclosure of order ROGERS, Judges. Associate government witness- of three of statements Act, 18 the Jencks U.S.C. es under § PER CURIAM: (1982), instruction to the court’s interest has a vital jury that the defendant sec- jury appellant A convicted prejudicial. the trial was in the outcome of murder, degree 22-2403 ond D.C.Code § merit; arguments has of Shaw’s None (1981), mayhem, 22-506 D.C.Code § accessory after thus, his conviction as co-defendant, (1981), ap- convicted simple assault is affirmed. fact Shaw, accessory fact pellant as an after simple assault, 22-106 D.C.Code § AND PROCEEDINGS I. FACTS (1981). The Ruffin to trial court sentenced night Febru- Following party on years life in concurrent sentences of ten ac- Ruffin’s sister appellant ary nine prison for the and of three to murder Wilson. from Clifford cepted a ride home imposed for the It years mayhem. re- party, Ruffin, had attended months. who prison sentence six Shaw Muse, who, beginning p.m., to his mother’s house. When turned 2:30 took a arrived, he advised that his sister had written statement after Ruffin signed apart- to his sister’s raped. He drove rights. been waiver Miranda The written ment, crying, and searched found her then completed p.m. statement was at 3:48 building. on the sec- He found Wilson police then took Ruffin’s trousers and landing apart- above the sister’s ond-floor po- shoes examination. Ruffin left the Wilson, following his encounter ment. p.m., lice station at about 6:00 after the Ruffin, left in an unconscious or brought of a arrival relative who Ruffin a subsequently state. He semi-conscious change of clothes. trial, At Ruffin admitted he struck died. charged Ruffin later was with the mur- did so self-defense. Wilson but trial, der of Wilson. Before he moved to Shaw, Appellant James officer suppress his oral and statements to written leave who was a friend of on administrative police, physical as the evidence well Ruffin, on the scene and called the arrived (clothing), as the fruits of unlawful sei- According testimony of sev- police. to the He zures under the fourth amendment. witnesses, told Ruffin not to talk eral Shaw suppress also to the statements on moved Ruffin and also advised ground obtained in had been viola- from his shoes. Shaw said wipe the blood rights tion of his fifth amendment under by telling problem he would handle sup- denied Miranda. The trial court in injuries were caused that Wilson’s The court also denied pression motion. by apprehension course of his Shaw. the indictment Ruffin’s motion to dismiss police officers testified that Shaw told Six of his sixth based on an asserted violation in self-defense them he had struck Wilson by virtue right speedy amendment to a trial struggle following rape. during a Shaw arraignment months of the 33 between injuries one officer that Wilson’s also told trial. in resulted from a fall which Wilson TRIAL II. RUFFIN: SPEEDY against his head the wall. had struck prima facie case Ruffin has established police transported several The witnesses 33 months be speedy trial violation: of a office to from the scene to the homicide See, e.g., arraignment and trial. tween statements, give group did not but 862, States, 479 A.2d 865- Miller v. United Later, morning of include Ruffin. on the (D.C.1984) year more than one (delay of 66 3, February question decided to violation). prima facie case creates a Ruffin, but, government.concedes, as the shifted to the therefore The burden has probable cause to arrest him there was no showing. Trib government to rebut Instead, Dy- Detective Hosea at that time. 766, States, 768 447 A.2d ble v. United him the telephoned son Ruffin and told analysis the in our (D.C.1982). employ We Dyson him. ar- police wanted interview Wingo, 407 in v. addressed Barker factors picked up ranged to have Ruffin 2182, 2191-93, 33 514, 530-32, 92 S.Ct. U.S. home James Brown at sister’s Officer (1972). 101 L.Ed.2d day. around noon that length of the de Having noted p.m., 2:00 At some time between 1:00and reasons for determine interrogation lay, we next must Dyson brought Ruffin to and one- seven delay. Approximately Dyson that room in the homicide office where directly attributable and read half months were told him he not under arrest was by Ruffin. None Arizona, requested continuances rights him his under Miranda v. govern to the chargeable 436, 1602, this time is L.Ed.2d 694 of 384 U.S. 86 S.Ct. 16 the re were four months (1966). of ment. Another sign did a waiver by Ruffin’s however, did, of continuances obtained rights sult those at that time. He bears codefendant, government admitting Shaw. give Dyson, an oral statement delay of Ruf responsibility for some he had but maintain- assaulted Wilson the continuances fin’s trial attributable ing in self-defense. that he had done so Shaw, fact the light of the requested Clarence Dyson then called Detective

689 nied, 871, 203, 439 government try chose to the two defend U.S. 99 S.Ct. 58 L.Ed.2d jointly. Gaffney (1978). speedy ants See v. United A 183 trial will also mini- (D.C.1980), States, 924, 421 A.2d 928 cert. types prejudice may mize two other denied, 2026, 68 delay: possibility result that the (1981). Nevertheless, light L.Ed.2d impaired defense will as a result of the be favoring join- policy of the considerations lapse anxiety time and accused’s der, weigh responsibility this does not delay. Ruffin has not attributable to government. heavily against the v. Adams any alleged way defense that his States, (D.C. 444-45 United A.2d impaired, “the absence of most 1983). where, as especially This is true prejudice weighs heavily in serious form of here, object failed appellant determination of whether our requested. continuances codefendant right.” deprived [speedy of his trial] ei- Another nine months are attributable States, A.2d Graves United occa- unavailability, ther to the four — (en (D.C.1984) banc), denied, cert. sions, judge, the trial or to “nor- other -, 88 L.Ed.2d 788 delay in a criminal case. mal” unavoidable (1986). appeal, For the first time on coun This nine months is attributable anxiety asserts that Ruffin suffered sel weight. government but carries little If delay. result of the Ruffin did suffer States, A.2d White v. United record, anxiety, it is on this not manifested (D.C.1984). request especially speedy he did not file a because continuance, necessary one made because any point during motion the 33 trial subpoena under failed several witnesses arraignment and months between trial. in de- appear. This continuance resulted a This leads to consideration of final months, directly lay of three which is factor: Ruffin never asserted Barker government. chargeable this to Since day of speedy right trial before the trial. delay attempt not a to de- “deliberate Indeed, opposed any he never of contin- hamper lay the trial to the de- order requested by government, the uances fense,” however, reason, but is “a valid court, co-defendant, or his Shaw. Ruffin missing witnesses], should [i.e.] [which] requested We himself four continuances. delay,” justify appropriate serve to it is not government the record agree with the great Barker, given weight. 407 U.S. complete of a absence demonstrates sum, approxi- 92 In S.Ct. 2192. speedy desire trial. indication for mately months of the 33 were attribut- 25V2 government, to the reasons able but the light In this the assertion lack of typical congested were criminal court right, prejudice the minimal to calendar, trial, joint in the of a and context defendant, fact the bulk of the and the nothing extraordinary. thus reveal delay attributable to the We next determine whether has there perceive delay, we bureaucratic “neutral” prejudice been the defendant from in this case. We speedy no trial violation delay. personal Since Ruffin remained on grounds proceed to consider the therefore recognizance appear until he failed trial. urged for new (trial February recom trial 1983 then 14, 1983), menced on March III. RUFFIN: ORAL STATEMENT “oppressive pretrial incarcera suffer the oral statement contends that his Ruffin is de speedy right tion” that trial (he police “stomp-kick[ed]” signed, part, avoid. Reed v. United self-defense)1 suppressible States, (D.C.), deceased 383 A.2d 320 de- cert. the follow- proceeded Then According Dyson, to defend himself. him to Detective Ruffin told raped interchange place: ing Ruffin had heard Wilson had took after sister, he had Wilson in his sister’s found he did Did he describe what [Prosecutor] apartment asked Wilson house. He had defense of himself? apartment things talk over. come back to the Yes, [Dyson] mentioned that sir. He attempting responded by kick Wilson had also times and decedent several struck the Ruffin, and blocked the kick on both fourth and fifth amendment have survived a fourth amendment chal- grounds. We conclude the trial lenge. court did E.g., United Mendenhall, States v. not err in refusing suppress 544, 547-48, 557-58, 100 S.Ct. oral reaching statement. In result, 1873-74, we 1878-79, 64 L.Ed.2d 497 have examined (1980)(federal whether the sup- record agent “simply asked,” with- ports the trial court’s conclusions that the out force, threats or show of if suspect government carried its proving burden of accompany would him to office for further (1) voluntarily police questions, went to the suspect did so without re- station for questioning, in sistance); which case there States, Giles v. United 400 A.2d violation, was no fourth (2) 1051, amendment (D.C.1979) (suspect responded gave an oral statement while not in by telephone custo- to message dy, in which case there agreed was no fifth amend- to meet with them at sta- ment tion).3 violation. We therefore review the record of suppression hearing in considerable de-

A. Fourth Amendment Inquiry tail to determine on what side of the fourth taking a close look at the evidence to amendment line this case falls: consent or determine whether Ruffin went with the seizure. officers to the station as a volunteer captive, struck, or as a initially, one is how elusive the answer question Initially, to that approach is. we note the the trial This compelling is not as issue, a case for court must rever- use to resolve this as well sal as others where the as the fourth amendment standard of review this court must apply has E.g., Florida, been violated. to the Hayes v. trial court’s decision. Accord- 811, 812, ing 1643, 1645, Supreme Mendenhall, 470 U.S. Court in (suspect L.Ed.2d 705 U.S. at transported S.Ct. at 1879: “to the station fingerprinting, house for with- question respondent’s whether out his consent and probable without cause accompany agents consent to was in prior judicial authorization”); or Dunaway voluntary fact product or was the York, 200, 203, v. New coercion, express duress or implied, (1979) (detec- 60 L.Ed.2d 824 totality be determined all the simply tives ordered ‘pick-up’petitioner “to circumstances, Schneckloth v. Busta ‘bring in.’”); him monte, 227, 2041, United [218, States v. 412 U.S. 93 S.Ct. Allen, 1303, (D.C.1981)(sus- 436 2047, A.2d 1309 (1973)], 36 L.Ed.2d 854 and is a “ pect frisked ‘you and told have to come to matter which the Government has the ”).2 homicide hand, with us’ 222, On the other proving. burden of Id. at S.Ct. [93 the evidence of voluntary compli- Ruffin’s 2045], citing Bumper v. North Car police ance with request the olina, 543, 1788, less convinc- 548 U.S. [88 ing than in other police 1791, cases where (1986)]. actions 20 L.Ed.2d 797 kick, kicks, stomp Mathiason, 492, 493-94, stomp executed a Oregon several v. U.S. Cf. body. the 711, 713, decedent’s (1977) (per 97 S.Ct. curiam) (no 50 L.Ed.2d you Did [Prosecutor] have discussions interrogation, in custodial violation with Mr. Ruffin about whether or not he had amendment, suspect: telephoned of fifth where any training in the martial arts? officer, police suspect’s left card at who had Yes, sir, [Dyson] I did.... advised me [H]e apartment; agreed patrol to meet officer at state training that he had had formal in Taekwon- office; and, there, responded questions once do and that he had reached the rank of brown learning after he was not under arrest but with- belt.... He advised me that he boxed CYO receiving warnings); Calaway out Miranda v. Organization] [Catholic Youth when he was 1220, States, United A.2d 1224-25 & n. 8 young and that he also boxed while he was in (D.C.1979)(no violation where fifth amendment military. the suspect he was not under detectives informed 491, 503, Royer, 2. See also Florida v. 460 U.S. they question arrest him at their but wanted to (1983) 103 S.Ct. 75 L.Ed.2d 229 office; suspect agreed incriminating and made (consensual (plurality opinion) inquiry public in police statements at station before Miranda place investigatory procedure "escalated" into in warnings given). were police interrogation room where "consensual aspects evaporated"). of the encounter had approach present applying this signifi- case, trial court confronted a govern- We turn to evidence. In the Ms. cant difference Mendenhall: suppression ment’s case in chief at the supres- testify not did Mendenhall Dyson hearing, he Detective testified that Accordingly, hearing; did. in sion had home “called address and [Ruffin’s] Mendenhall, where contrast with him in asked to come down the office scrutiny, government’s evidence was under investigation.” prose- reference our question inquired, court confronted the “And he do so the trial cutor then “Yes, government voluntarily?” Dyson replied, sir.” carried its burden whether therefore, report when, Dyson, did not sup- at the proving voluntariness such; merely he response as testified as to con- hearing, sharply there was pression opinion come that Ruffin had vol- own why Ruffin had flicting about untarily.6 When asked cross-examina- headquarters.4 go agreed brought tion “Ruffin was to head- whether accept handcuffs,” answered, Although quarters Dyson we are bound to conflicting knowledge.” my resolution the trial court’s “Not to Muse, Alexander, who 428 then called Detective Clarence testimony, United States happened he (D.C.1981), what had after recounted A.2d 49-50 ultimate room, seen Ruffin in the interview after Ruffin’s actions ac question—whether Dyson. statement Muse stated oral precinct to the were companying was unsure on cross-examination for court to voluntary one law —is Ruffin had whether been handcuffed —“he on the record. United States v. decide been”—and then testified about could have (D.C.1985); Gayden, 492 A.2d cf. taking statement. Ruffin’s written Fenton, 106 S.Ct. Miller v. (volun 445, 450-51, 88 L.Ed.2d so, Ruffin Although could have done legal question, confession tariness of ruling Dyson after did not ask for statute, presumed, issue fact under Instead, be he took the had testified. Muse corpus proceedi in federal correct habeas and testified that stand ng).5 no deference to We therefore owe my sister’s house and stated “called my the trial court’s ultimate conclusion that out arrest put a bench warrant give up. I voluntarily accompanied myself officers I And and that should down to the sta- that I would come precinct. stated (1980), presents 64 L.Ed.2d 497 question 4.This case of the defend- respective government’s Supreme for the and the burdens Court cases to stand ant’s and earlier and, that, ultimately, going forward with evidence once asserts he or proposition a defendant persuading A "custody” the trial court. defendant who into or taken she was "seized” suppress warrant, "has the burden of persua- files a motion of police the burden without a making prima showing illegality facie exception to the warrant as to consent—an sion requirement demonstrating a causal connection between the government. to the —shifts illegality and seized evidence.” Duddles v. States, (D.C.1979) (cita- United 399 A.2d 63 States, v. decision in Giles United 5. This court's omitted). This means "the defendant is tions (D.C.1979) guidance provides no A.2d 1051 papers, obliged, motion her] in his definitive [or concluding pres- that defendant’s here. which, allegations if estab- to make factual lished, voluntary, police this station was ence at (based on evidence would warrant relief any evidentiary there was did not indicate court and, necessary, discovered proffered suppression hearing. at the conflict own from defendant’s view so, case).” has done Id. When defendant that, arrived at Dyson after Ruffin had added production or this shift either burden will rights, Dyson him of his headquarters, "advised government, persuasion the burden of particular under arrest that he was not that depending on See Malcolm the circumstances. Dyson By that he advised meant this time.” States, (D.C.1975) v. United (absent 332 A.2d 47," Le., appear PD "rights on the warrant, establishing proba- burden of Arizona, v. Miranda derived from those 436, warrant, given government; ble cause on (1966), but L.Ed.2d probable proving cause or lack of burden changed "you under arrest” words are with movant). of warrant unlawful execution "you under arrest.” are not Mendenhall, We United understand States tion, and they they stated They would send a A. arrangements made to meet police they car after me. And sent the me there. police my car to sister’s house and [other] [Emphasis added.] policemen two handcuffed me and took me acknowledged that he had been at down to homicide division.” his sister’s police house when the “first cross-examination, On prosecutor there, called” arguably implying contrary — Ruffin, initially, elicited from police that a to his initial answer on cross-examination— spoken officer had phone only over the spoken that Ruffin had police with a officer sister, Ruffin, Ruffin’s not to and that this at that time. Ruffin acknowledged also sister was the one who had told him a that he could have asked his sister to testi- bench warrant had issued for his arrest. fy clarify situation, in order to but did Q. somebody And from homicide called hand, not. On the other testimony you your sister’s [at home]? cross-examination, on direct and taken as a They A. called her and told her that it whole, arguably internally was not incon- was— may sistent. He have meant Q. Well, they speak you? Did spoken Dyson Dyson with when called you speak anybody phone? on the the first time about warrant —that he A. No sir. personally spoken police only Q. anything you So that testified responding phone when to a call “after” to before the bench [about warrant] Moreover, the first Dyson one.7 Detective you say your you? what sister told expressly had not stated that he had made [Emphasis A. Yes sir. added]. only telephone one call to solicit Ruffin’s however, response, Ruffin’s next indi- cooperation.8 prosecutor Nor did the at- cated—as he had on direct examination— tempt out, during to find cross-examina- spoken Ruffin himself had with the tion, explain pos- whether Ruffin could police being picked up trip before for the inconsistency personally speak- sible about police station. ing with the or whether Ruffin had Q. And you got telephone after supposed Dy- discussed the warrant with somebody pick you call up? came to son or other officer. A. No sir. Well,

Q. happened what then? Dyson’s Accordingly, and Ruffin’s testi- Well, they A. said mony together, were—would point, to this taken send a scout car. I said I would come plau- at least two inconclusive. There are said, no, precinct. They down to the (1) interpretations: telephone con- sible two they would send a scout car for me. So place Dyson or some versations had taken — they sent the scout car to the scene of other officer with Ruffin’s sister I met my incident. them back at warrant, by Dyson about a bench followed sister’s house. [other] making or some other officer with Ruffin

[******] arrangements for a trip headquarters— Q. you Did you tell them that would had taken one conversation meet them Ruffin, there? place, Dyson between which Yes, A. sir. about sister’s case Ruffin's Q. warrant would have arrangements reference to bench You made to meet supra them note 7. there? been a lie. also See trial, Later, Dyson testimony susceptible 7. Ruffin's is also to Detective testified that at third, speculative interpretation: family telephoned albeit more the Lieutenant Alexander had police personally spoken that he had home, to the over unsuccessfully, to reach Ruf- in an effort telephone, relayed through the that he had his phone possibility more than one fin. The willingness sister his to “come down to the Dyson or officer to Ruffin’s call from another precinct,” police accordingly and that the had residence, reaching personally only on Ruffin arrangements” through "made Ruffin’s sister to occasion, farfetched. second is therefore not meet Ruffin at his other sister's house. itself, Dyson neither inter- transcript From the the Homicide Branch.” Like testimony Williams, however, report not Dyson-Ruffin did pretation of the Brown most, Moreover, provided specifi- response; Ruffin’s at he compelling. Ruffin did vague, question-begging hearsay confirma- cally threat of articulate circumstances—a “apparently” willing tion that Ruffin was him to feel con- arrest —which caused headquarters voluntarily. to come to Fur- questioning. strained to surrender for Williams, thermore, Brown added like that believed, testimony, if thus tended Ruffin’s Ruffin was not under arrest and that he voluntary to rebut whatever inference of had no to handcuff Ruffin. But reason could to legitimately consent be attributed also, Williams, testify like did not Brown Dyson’s generalized testimony. opinion that he had told Ruffin he was not under Dyson had not testified to Ruffin’s ver- arrest. testified he Brown further that response police at the time of the re- bal squad Ruffin would have let out car quest; Ruffin, Dyson nor testified that had if to But Ruffin had asked leave. Brown any way, had manifested an under- not testify that he had told Ruffin he standing say he to no and thus was free along was free decline come or was voluntarily. accompanying police change free mind leave the car therefore, Dyson, provided no factual basis arriving headquarters. before at disbelieving testimony. for Nor sum, In established probe prosecutor deeply did the through its most—that own witnesses—at establish, enough on cross-examination to asked, told, police had not Ruffin to certainty, to a reasonable that Ruffin had headquarters; that Ruffin come to had inconsistently. By testified the time Ruf- fuss; that one more done so without or therefore, completed testimony, fin officers believed Ruffin had done so volun- arguably equipoise, evidence was in with tarily; not been hand- that Ruffin had production the burden of as to voluntari- cuffed; con- that the officers had not shifting government. ness thus back (although sidered Ruffin to be under arrest rebuttal, In Officer Williams testified not); one him he was and that no had told and, gone pick up that she had squad to leave the Ruffin could have asked time, go “if had asked him he would he arrived consequence before car without down with us because wanted to talk questioning (although no one had told for Dyson, him at homicide Like branch.” so). police him he could do None of the response. she did not mention Ruffin’s In- however, officers, or was examined cross- stead, merely she added that Ruffin was said, had examined about what Ruffin placed or under arrest handcuffed. go voluntarily asked to anything, when testify She did not she had told Ruffin Moreover, prosecu- station. he was not under arrest. Dyson or call tor did not recall Detective rebuttal, Brown, who had Also in Officer explicitly to rebut Ruf- officer any other headquarters, driven Ruffin to testified gone testimony with fin’s “[apparently Homi- someone at the from his he had learned because Dyson (who cide Branch in fact to Mr. Ruf- talked had learned sister voluntarily officer) arrest warrant apparently fin and he was com- that an some other reflecting the non- ing down.” Brown testified that further had issued— Supreme Court mind set Ruf- inquire had been asked to whether consensual hand, Haynes.9 On the other voluntarily recognized in “willing go fin down to Petitioner, Florida, him. Hayes would therefore arrest v. U.S. 105 S.Ct. 1643, 1645, (1985), investigator, “blurted out” then the Court 84 L.Ed.2d 705 words journey go the officers to found "no consent to the would rather that he station." be arrested. than station 543, 550, Carolina, house, Arriving petitioner’s Bumper the officers North See spoke petitioner porch. When on his front L.Ed.2d voluntarily expressed to accom- he pany reluctance consent (search justified be on basis cannot fingerprinting, them to the station given only official after has been consent when explained they investigators one of the appeared given to have inconsistent had credited Ruffin’s statement about the testimony during cross-examination, warrant, bench it could not have concluded denying acknowledging first and then voluntarily that he accompanied had the spoken police had with officer. Defense police precinct. officers to the supra See attempt counsel did not on redirect to rec- note hand, by 9. the other altogether One oncile these statements. Nor did Ruffin disbelieving Ruffin’s bench warrant testi- call his sister to the to clarify stand and mony, way the was clear the for court to testimony. buttress police find on the basis evidence alone court, altogether The trial disbelieving that accompanied police Ruffin had the vol- Ruffin, suppress. denied the motion to In Thus, untarily. dealing, we are fundamen- commenting on testimony describ- tally, question the the whether trial ing transpired his transporta- what finding court’s that Ruffin’s bench warrant precinct tion to the until his release at 6:00 testimony inherently was incredible is enti- p.m. day, the same the court stated: tled to leading appellate deference— The does not the Court credit defendant’s court conclusion Ruffin voluntarily They inherently version facts. are gone had station—even They just ... incredible. don’t logically though government clearly was follow. Court finds as a matter of failed, position, impeach but or other- was not I distinguish law he arrested. testimony wise refute Ruffin’s with direct frisked, case was Allen where he evidence. constantly guarded. He was al- Initially, Supreme we note that given though a ride downtown. The in Dunaway Court’s decisions and Men- Court does not credit the fact that he each, denhall are not In determinative. time, any per- was in handcuffs at undisputed; the facts were neither decision Clearly mitted to leave. not custodial at concerned review of a trial court’s Oregon all under factual v. Mathiason....

findings. dissenting colleague argues Our 3. in Dunaway “nearly the facts are identical” to those here. evaluating In ruling, the trial court’s we Infra note, key distinction the fails to court, dissent must decide whether the trial on this however, record, Dunaway is that the trial legitimately could credit government’s witnesses, altogether apparently court credited defendant’s disbe- lieve testimony, place Ruffin’s “bench warrant” factual account what had taken thereby conclude that the predicate legal for its conclusion that the proving its sustained burden of volun- involuntarily. him had detained tary consent.10 U.S. at n. 2253 n. 6. S.Ct. at Here, contrast, the trial court found Particularly important analysis appellant’s presentation incredible factual that, although question an awareness government’s finding while evidence of ultimately voluntariness is one of law case, voluntary persuasive. consent This court, turns, for question in this therefore, case, “nearly is not identical” to Dun- finding on a factual as to whether the pre- not away appellant’s testimony told Ruffin issued does a bench warrant for his arrest. If trial court vail. rebuttal, conducting pos- police testimony search has he or trial court asserted she warrant). evidence, just sesses a properly all the not considered government’s opening Haw- evidence. Cf. Dyson’s We do address whether Detective States, 168 n. 10 thorne United A.2d stand, testimony, before Ruffin took would States, (D.C.1984); Franey v. United A.2d enough have been to establish Ruffin’s volun- (D.C.1978) (defendant who intro- tary headquarters. consent come to At the judg- after for duces evidence denial of motion hearing suppress, on the motion to Ruffin did acquittal government’s at close of case ment of ruling Dyson’s not ask based on Detective thereby make that event, waives motion and cannot alone. we conclude review). appellate that, stand, ruling subject of once Ruffin took followed

695 evidence, Noting respon- dispositive. evaluating is the that Nor Mendenhall “[t]he disputed,” hearing.” material facts are not testify that did at the dent herself not “[t]he 5, 5, n. 446 U.S. at 552 100 S.Ct. at 1876 n. 557, 446 at 100 at 1879. The S.Ct. Supreme the trial the Court sustained ruling thus made clear that its Court voluntary court’s determination of consent. im- evaluating the uncontradicted limited to respondent The court stressed “the was not itself, testimony plications police of the as office, go told that she the but as the circumstantial factors.12 well simply accompany asked if would she then, question, whether the trial questioning. the officers” further reject testimony can the of a defend- court were neither threats nor show "There coercion, who, Dunaway, asserts ant as 557-58, 446 U.S. 100 at force.” at S.Ct. voluntary and then find consent on the so, response, although In did “[s]he testimony and circum- basis record indicate a verbal re the does not factors, Mendenhall, as stantial 548, sponse request.” 446 U.S. at though not the defendant had taken the case, present 100 S.Ct. at 1874.11 the (or, perhaps significantly, more stand therefore, police testimony alone had if the lied). begin stand and We taken the “totality the of all the circum reflected States, 466 A.2d 1245 Staton v. United 1879, stances,” 557, 100 446 U.S. at S.Ct. at defendant, (D.C.1983), appeal the where justify a determination Mendenhall would suppress, from the denial of motion consent; voluntary regard without challenged grounds on fifth amendment testimony, the two cases are sim ruling trial his confession court’s that ilar. argu- voluntary. rejected We had been however, note, is useful to It that required ment that “the trial court was dissenting four Justices in Mendenhall testimony concerning credit his unrebutted stressed that “Ms. Mendenhall did not testi- 466 police utterances.” A.2d at coercive fy hearing offi- suppression at the and the that trier need not 1251. We stated “[t]he concerning presented testimony cers no testimony of a even witness believe said, if anything, what she informed when though uncontra- the witness’ her officers wanted to come with omitted], particularly dicted [citations 576, them to the DEA office.” 446 U.S. at personal has a interest the witness where J., (White, dissenting). 100 S.Ct. at 1888 It 466 at 1252. We in the result.” A.2d follows, dissenters, said “[o]n added, however, allega- “appellant’s us, record before the Court’s conclusion tactics], true, coercive tions [of can be based on the notion that con- grave questions about voluntari- raise sent can be assumed from the absence of Accordingly, of his confession.” Id. ness proof suspect resisted authori- said, although ordinarily court the “trial we ty. squarely This is notion we have findings of fact or ‘need not make formal rejected.” 100 at 446 U.S. at ruling upon such opinion’ when write an (White, J., dissenting). 1888 While (quoting suppress,” id. at motions to majority spe- did Court Mendenhall not 538, 544, 87 S.Ct. Georgia, v. 385 U.S. generalized cifically interpreta- eschew Sims (1967)), 639, 643, “the trial holding, note, in majority tion its 17 L.Ed.2d 2041, 2050-51, 218, 233-34, 36 L.Ed.2d 93 S.Ct. Apparently, Ms. was not told Mendenhall (1973). go that she did not have to with officers office, respond people but the fact that being they police requests majority free cir- "without told are considered also 12. The Mendenhall respond, hardly not to eliminates the consensu- “the incident whether cumstantial evidence: Immigration response,” reasonably appeared al nature of the coercive” have would Delgado, high 466 U.S. 22-year-old Service was not a Naturalization black female who (1984), “may un- 104 S.Ct. 80 L.Ed.2d have felt graduate who school officers, totality were usually of the circumstances indicates who if the threatened voluntary beyond "a mere submission S.Ct. at 1879. consent at males.” 446 U.S. white that, authority." Royer, claim lawful 460 U.S. factors to a these ‘‘[w]hile concluded The Cotut omitted], (plurality irrelevant, opinion); neither [citations were Bustamonte, accord, Schneckloth v. decisive.” Id. were 509-10, be court’s determination ‘must reliable and 373 U.S. at 83 S.Ct. at 1340-41. circumstances, clear-cut and conclusion the con- Under these [its] as a matter of voluntary in fact must appear fession is law the confession could not have been voluntary, though from the record with unmistakable even clari- the trier of fact ” (quoting States, may ty.’ have disbelieved Id. Wells United the defendant. 1081, (D.C.1979)). 407 A.2d Because contrast, In in Staton —also a coerced it was not clear in Staton “whether the confession case—the defendant “was re- (1) trial appellant’s court concluded that peatedly given warnings,” Miranda testimony concerning uncorroborated coer- 1252, A.2d at absolutely there was no incredible, unrebutted, although cion was of corroboration the defendant’s claim of or or some all of the coercive statements police coercive tactics. Further distin- made, were in given totality fact but of guishing Haynes, pointed this court out circumstances, appel- did not render police that the of testimony implied “tenor” involuntary,” id., lant’s statements we re- given defendant had voluntary a state- findings manded the record for further and ment, in contrast with the trial ap- court’s explanation for an of how the trial court parent perception that the defendant’s self- conclusion, had reached its in order that serving we testimony police coercive about tac- could meaningful tics, afford review. although unimpeached and unrebut- case, present however, ted, clear altogether it is that the was incredible and thus un- worthy trial policetestimony court credited the of serious consideration. See 466 altogether rejected A.2d at uncorrob- testimony orated “bench warrant” as “in- The instant case is from different both Thus, herently incredible.” no remand is Haynes signifi- and Staton in at least one

necessary to ascertain the basis for the respect: cant are considering because we ruling. court’s as it accompanying voluntariness relates to precinct officers to the station—a however, Staton, should not be read so inquiry fourth amendment contrast broadly proposition that, as to stand for the —in giving with the of the state- voluntariness circumstances, under judge all a trial may itself, warnings ment Miranda are not at disregard a defendant’s uncontradicted tes- clear, however, issue.13 It no timony. example, Haynes For v. Wash- witness told he was ington, 83 S.Ct. go free not Accord- officers. (1963), L.Ed.2d Supreme Court held ingly, implications of whatever Staton a involuntary confession a matter of law a analysis for voluntariness when defend- (before decision)(1) where the Miranda inculpatory ant’s statement is issue after right defendant was not advised “of his given, warnings Miranda have been Sta- silent, remain warned that his answers cases, of necessarily dispositive ton is not might him, against or be used told of his one, (or such as where Miranda analo- rights respecting consultation with an at- gous) warnings part of the calcu- are not 1341; torney,” 373 U.S. at lus. (2) the written confession itself contained a (a reference to coercive tactics form cases, of and other su Mendenhall testimony corroboration the defendant’s that, pra proposition note establish the effect), to that 373 U.S. at 83 S.Ct. at by when has not a of force there been show 1342; and, significance, (3) of considerable police, suspect’s voluntary a mature officers, the allegedly overreaching headquarters may who consent to come to be request were in court and merely heard defendant’s fol inferred a “acquiescence” testimony, deny suspect’s did not the accusations. lowed asserting repeated credibly warnings speak recitation of these need not at all—is nonetheless, followed a defendant’s confession at police, least the statement. the This, coerced inferentially supports finding voluntariness; course, a giving say is not to that the warnings inevitably are relevant the trial finding warnings precludes of invol- Miranda perception court’s whether defendant who untariness. being confesses told to crime—after he or she weight suspect production no resist- does the of a trial there is evidence that —than reasonably altogether police authority credibility otherwise court’s determination ed be, was, rejecting testimony. he or she or would un- perceived a witness’s When, however, testifying put government’s unwillingness der arrest on re- allege such coercion as the objective defendant does but buttal indirect accompanying the to head- story basis of the defendant’s corroboration logic quarters, Haynes court, the of would have a ruling appellate an on voluntariness significance to the failure law, court “attribute properly ignore as a matter of cannot State, listening to of the after the subjective [defend- in favor of a trial court’s credi- testimony, explicit to at- direct finding. bility ant’s] evidence,” tempt to contradict that crucial light especially availability “in of the question Accordingly, the final is wheth- who, willing policemen cooperation of the prosecutor’s er the cross-examination of so, readily honestly to do have able would Ruffin, coupled police the with officers’ the claims.” 373 U.S. denied defendant’s rebuttal, testimony in was sufficient im- point at 1341. This peachment of Ruffin’s and/or rebuttal telling. We do not believe a trial court’s testimony permit bench warrant to the trial perception mere that a defendant’s unim- thereby court to disbelieve his claim and uncorroborated, though peached, testimony compel that a conclusion he went to the enough is incredible should to defeat be a police voluntarily. station accompany police claim coercion to the of earlier, completed As noted when Ruffin (1) precinct questioning for when the testimony production his the burden of government persuasion, has the burden of govern- to back to the voluntariness shifted (2) no there is evidence either that ment, probed prosecutor since the had not police have told the defendant he or she is deeply enough to on cross-examination es- request, free to decline the or that tablish, by preponderance a of the evi- clearly defendant understands or she dence, that Ruffin had testified inconsist- so, may prosecutor do has not speaking police ently about with the called available rebuttal witnesses refute lied thus had about warrant. bench the defendant’s assertions. testimony some Obviously, Ruffin’s created We reach this conclusion for two rea- enough veracity not doubt about his but First, usually sons. a defendant will not be fairness, government say, in that the position directly in a to offer cor- evidence persuasion carried its burden of without roborating alleged coercion, police typi- for for need rebuttal. cally there no will be disinterested defense especially difficult because This case alleged police witness to the conduct. government’s inadequacies of in the rebut- Thus, of failure corroboration should not nor testi- tal. Neither Brown’s Williams’ when, significant commonly, be the defend- testimony directly Ruffin’s mony refuted ant’s be the direct evi- own word will accompany compelled had felt Second, given dence of coercion available. understanding his the officers because of government's persuasion, a burden for had been issued bench warrant trial mere of the defendant court’s disbelief Dyson Detective re- arrest. Nor was saving should not a conclusive basis be called) (or any to dis- called other officer it government a circumstantial case when he had assertion that credit Ruffin’s everyone police is clear that available (who allegedly had from his sister learned witnesses, position in a to discredit the police) war- spoken bench with defendant, not have elected to take Moreover, not one issued. rant had been stand to do so. That failure testi- government’s three witnesses present direct evidence when witnesses to he was Ruffin had been told fied that testimony impediment there is to such no choice in the matter. arrest or had a under speaks loudly appellate court more Finally, officer testified that no reviewing transcript alert, as we must — understanding free to he was be, evidentiary indicated an shifting burdens police request.14 decline the Accordingly, government’s rebuttal of Ruffin’s despite Ruffin’s “bench warrant” testimo- handcuffs testimony, coupled ap- with the parent ny despite the officers’ own knowl- inconsistencies Ruffin’s own testi- —and mony talking about edge police, what Ruffin had said to them and the bench story warrant had, a lie. police not, Where- what the or had said as neither Ruffin’s cross-examination nor Ruffin’s sister—all the officers left out a government’s rebuttal enough vital testimonial link between itself to refute Ruffin’s bench tes- warrant requests willingness and Ruffin’s to accom- timony, they enough were together taken pany them.15 permit the inference that Ruffin had was, however, There a direct clash be- Thus, lied. the trial court had reasonable tween Ruffin’s and the officers’ tes- disbelieving basis for alle- factual timony about whether Ruffin had been gations concerning the bench Ac- warrant. during trip handcuffed cordingly, applying the analysis in Menden- station. Consistent with his to hall the other legitimately facts found warrant, about a bench Ruffin said he had by the police testimony trial court—the handcuffed; been Officers Brown and Brown, Dyson, Williams, and combined Williams testified that he had not.16 The with no contrary credible assertions —we police, trial court believed the expressly must accompanied conclude that Ruffin the stating “the that Court does not credit the police precinct voluntarily. to the fact was in handcuffs at [Ruffin] Although time.” the absence handcuffs B. Fifth Inquiry Amendment necessarily imply would not that Ruffin headquaters, Once at Ruffin was ush- had not told about been a bench warrant ered into interrogation an room. Detective arrest, for his finding the trial court’s of no Dyson testified he had told Ruffin he (a typical procedure) sug- handcuffs arrest not under arrest and had read Ruffin gests not that Ruffin was not under rights. Dyson his Miranda further testi- lying arrest but also about hand- that, response fied to a question, Ruffin very premise cuffs cast doubt on the of his had to “willing answered he was talk” and testimony: coercion that he had heard from then had made an oral statement acknowl- police through the his sister about an ar- edging “stomp he had de- the kick[ed]” rest warrant. ceased—in self-defense. court, therefore,

The trial reason The trial court Ruffin was concluded that ably given could have custody concluded on the basis of never in thus had all and only speculate why prose- system permits 14.One can as to the counsel for both sides to dance cutor and defense counsel to declined examine around the truth in a criminal case. When that entitled, police or happens, perhaps cross-examine the officers and Ruffin trial is court what, anything, inquisatorial about if had when obligated, perform said even to an role. headquarters voluntarily. asked to to come Nor See id. why prosecutor is it clear declined to recall Dyson not what 15. Because officer does know Detective to rebut Ruffin’s bench warrant suspect, testimony. likely explanation who to the A is asked come is that both questioning, likely lawyers say at a station for is feared the answers would be harmful to result, positions. suppression hearing, respective their who confronts As a we lack officer matter, important, compliant suspect may, practical govern- as relevant information. The ment, having proof, suspect or the burden of took the have to make sure that the knows he greater risk the court were to credit uncontra- she is under the officer not arrest the time request. dicted defense which the makes the position through was in a to undermine own its ignore. witnesses but elected case-in-chief, government’s In the Detective merely my court, Dyson had answered "not knowl- finding The trial in the interest of edge" truth, had come to when asked whether Ruffin step clarify after should the situation rebuttal, headquarters it be- in handcuffs. In obviously both counsel have so avoided un relevant, critical, apparent came that Detective Muse’s uncertain- doubtedly question. indeed States, ty had handcuffed See about whether Ruffin been Womack v. United 350 A.2d circumstances, (D.C. 1976). given his period related to after Ruffin 382-83 such adversary oral tried court’s statement. absolute deference (Detective disagree “imagined” Ruffin voluntarily. Muse We with noon statements conclusion; 2:00). Then, we that Ruf- as that broad believe arrived between 1:00 law, fin, custody matter given as a his oral state- soon as Ruffin had gave Detective Muse second ment, time called in Detective Muse was warnings began Ruf- Miranda elicit interrogation room take a written state- A. statement. Part IV. fin’s written ment, 2:39 he recorded between which Infra hand, agree trial On the other we with the p.m. 3:48 voluntarily came to the court that Ruffin into ushered When Ruffin had been question, then, is police station. room, interrogation Dyson Detective Ruffin remained a volunteer at the whether under arrest. At no told him he was not or gave his oral statement instead time thereafter, however, did a offi- time interroga- subject to custodial had become him he was free to leave. Muse cer tell tion, rights. rise giving to Miranda not initially that Ruffin was hand- testified analysis essentially “The cuffed, but, cross-examination, he admit- determining is ‘in same for whether one unable to recall whether ted was ” purposes for fifth amendment custody’ in the to the desk inter- was handcuffed ‘illegally de “or has been ‘seized’ or (as alleged), Ruffin himself had view room ” under the fourth amendment. tained’ stating he “could have been” because Basically, Gayden, A.2d 872 n. followed, always policy, it was a police, by question whether suspects. of his Mi- handcuff Advised conduct, including a show of au words if asked Muse he rights, Ruffin randa suspect have a thority, manifested to thought (Ruffin) lawyer. he needed E.g., or is not he she free leave. United self-defense, replied, “[W]eII, if it Muse 1040, Barnes, States v. 496 A.2d it would you questions, can answer ... (D.C.1985) (fourth amendment); Calaway v. Un only clarify your part.” Ruffin then (D.C.1979) States, 1220, 408 A.2d ited of signed a his Miranda written waiver (fifth amendment). record, Ruf On this gave rights, he the written after which voluntary fin’s sta presence at the statement. voluntary implied tion his make consent to statement, the oral which he did almost circumstances, whatev these Under immediately upon There arrival. had been from the inferences should be drawn er person no time and seizure at the appearance at Ruffin’s initial record interrogation.17 thus no custodial office, must conclude that homicide we Accordingly, we conclude the trial court position person in Ruffin’s a reasonable refusing in to suppress did not err or was free he she could have believed police. oral statement to the leave, supra, A.2d at Calaway, see inculpatory 1224, given the once he had IV. RUFFIN: WRITTEN STATEMENT Muse was Detective oral statement and erred, as a We conclude the trial court in take a statement. called written law, ruling matter of that Ruffin was elapsed, virtu which had period time custody gave he his not in at the time interrogation, the inherent ally continuous erred in con- written statement and thus eliciting atmosphere, the ly coercive gave he volun- cluding that statement rights despite signed waiver Miranda tarily. might concern that Ruffin’s announced Interrogation A. Custodial any indica lack of lawyer, need to leave that he was entitled to Ruffin gave his tion dispute There is no that Ruffin lead whenever he wished stationhouse virtually he ar- oral statement as soon as “in custo- that Ruffin was office, a conclusion sometime after rived at the homicide custody. if had been sign even Ruffin sion motion fact Ruffin did not a written 515, States, rights giving his 351 A.2d before See Walden v. United waiver of Miranda and, (D.C.1976). oral irrelevant statement is therefore event, any suppres- dispositive of a would not be dy” gave as the time he the written (1981), state- S.Ct. 68 L.Ed.2d 378 the Court ment to Detective Muse. per fashioned a se rule that an accused

who has invoked the Fifth Amendment right to assistance of counsel cannot be Right B. to Counsel subjected interroga to additional custodial alleged nextWe consider the violation (1) tion until either counsel is furnished or right Ruffin’s fifth amendment to counsel. accused, knowledge of the Alexander, See United States v. 428 A.2d right, knowingly intelligently relin (D.C.1981). We conclude the trial quishes 484-85, 101 it. 451 U.S. at S.Ct. at ruling that, court erred in in the alternative Although 1884-85. we have held that initi- if custody, even Ruffin was in he voluntar- ation the accused of substantive discus ily rights. waived his Miranda The writ- following sion an assertion of Miranda statement, therefore, ten should have been rights compelling is a in determining factor suppressed. waiver, the existence of a valid Rogers v. taking statement, Before the written States, (D.C.1984), United 483 A.2d Muse advised Ruffin of his Miranda denied, 1227, 105 rt. ce rights. According to Muse’s own testimo- (1985), 84 L.Ed.2d 363 the mere re ny, thought Ruffin then asked “if I [Muse] sponse by suspect question to additional lawyer.” needed a Muse re- [Ruffin] ing following right an assertion of the sponded, “[W]hy?” replied, counsel does not effect a waiver of the him, of what read” to “[B]ecause [Muse] Edwards, right, 451 U.S. at i.e., right According to counsel. whether, at 1884.18 issue At here is and to Muse, explained why he then to Ruffin extent, applies what the Edwards rule in a necessary: counsel was not this, case such as request which the said appears equivocal. that ... it was self-defense counsel to be As in

[Y]ou you] case, didn’t every have reason not to waiver has the [and questions answer because it showing was self-de- burden of an intentional relin- said, well, fense. And I quishment it is self-de- right, abandonment fense, you questions, can answer it indulge ... every pre- and we must reasonable only clarify your part, your would what sumption against waiver. Brewer v. statement is reference to what took Williams, 1232, 430 U.S. 97 [in] S.Ct. place. 1242, (1977); 51 L.Ed.2d 424 Turner v. States, 542, (D.C. 443 United A.2d 554 Although he did not initial the written 1982); 55, Miranda, see 384 U.S. at 486 n. waiver of counsel found on the de- (“the 86 at n. for S.Ct. 1634 55 standard form, partment Ruffin did dictate a three- necessarily high”). waiver page following colloquy statement this Muse, initialing with page signing each Smith, As the Court noted in 469 U.S. at it. 96, 3, 493, 3, n. 105 S.Ct. at n. some courts per held se rule have Edwards’ The interchange between Ruffin and requires interrogation following cease presents Muse by an issue left unresolved accused, any indication at all from the how- Supreme Illinois, Court in v. Smith equivocal, might 91, 3, 490, ever that he or she want 469 U.S. 95-96 & n. 105 S.Ct. ques- 3, (1984) continuing to answer (per 492-93 counsel before & n. 83 L.Ed.2d 488 curiam): have held that resolu- ambigu- of an tions. These courts what the effect against equivocal any ambiguity ous or tion of the defend- request for counsel? In Arizona, 477, prophylactic 101 intent Edwards v. 451 U.S. ant would subvert deprive 18. The fact that Ruffin had given does not an oral state- some statements on his own answering any Dyson interchange right ment to to refrain from Detective before his him of Muse, coupled inquiries with an further until he has consulted Detective with Ruffin’s counsel, ques- equivocal request attorney be affect and thereafter consents to Miranda, for does not 445, analysis, may our tioned." U.S. at 86 S.Ct. mere fact that he 384 "[t]he questions have answered some or volunteered

701 1219, (4th Cir.1976); People Riggs, v. example, in 1222 of Miranda.19 For 537 F.2d Superior County, 15 Chansriharaj, Court Mono v. United States 446 of 798, 735-36, 729, Cal.Rptr. 125 802- (S.D.N.Y.1978); Gia 107, Cal.3d 109-110 F.Supp. 03, 1390, (1975), cert. State, 542 P.2d 1394-95 218, (Alaska 222 v. 633 P.2d comazzi denied, 58, 816, 97 50 S.Ct. 1981); 647, Acquin, 187 Conn. State v. 448 (1976), question 76 the accused’s L.Ed.2d denied, 163, (1982), cert. 463 A.2d 177 officer, you interrogating “Do think we 1229, 3570, 1411 103 77 L.Ed.2d attorney,” was held to have re need an Moulds, 880, v. (1983); 105 Idaho State questioning of quired the cessation and the 888, 1074, State (App.1983); 1082 673 P.2d suppression of the statement that resulted 113, 1265, 1268 Wright, 97 N.J. v. 477 A.2d interrogation from the continued of the ac 440, Cody, 293 v. (1984); 446 State N.W.2d in People A cused. similar result obtained Robtoy, 98 v. (S.D.1980); State Wash.2d Alexander, 495, v. Mich.App. 79 261 284, (1982); Daniel v. 30, 290 P.2d 653 denied, (1977), cert. 63, 64 436 N.W.2d U.S. State, 172, State (Wyo.1982); 644 P.2d 177 958, 3073, (1978), 57 L.Ed.2d 1123 Smith, 27, v. (Mo.App.1979); 588 S.W.2d interrogat where the defendant asked the Smith, Wash.App. 405, State v. 661 P.2d ing thought officer whether he that she 1001, (1983). 1002-03 attorney, an and the officer re needed sponded just should that she tell the officer latter, majori We that this believe Fish, People v. happened. See what had spirit ty approach comports with (Colo.1983) (“An ambigu 660 P.2d restricting Edwards without unduly having interest in ous indication an coun investigative authority. Ac government’s requires interroga- sel cessation of appropriate cordingly, conclude that we Texas, tion.”); Ochoa v. 573 S.W.2d ambiguous equivocal response to an as (statement (Tex.Crim.App.1978) by 800-801 by right to counsel an ac sertion of the probably ought talk accused that “he expression typically, an indirect cused— lawyer” required question- cessation request by police interest in counsel —is a Lewis, v. People ing); Mich.App. For exam interrogators for clarification. (inquiry 209 N.W.2d de- this, appropiate ple, in a case such an attorney fendant as to whether I response question, you “Do think interroga- the late available at hour lawyer,” be to inform need a would United request); tion sufficient was a cf. is one for him or suspect that the decision Prestigiacomo, States F.Supp. Smith, 1002-03, make, 661 P.2d her to (E.D.N.Y.1981) (statement foreigner decision. and to then ask for the English “maybe not fluent in it would good lawyer” be to have a a sufficient permissible re- Although is one request required for, for counsel and that inter- possible; it one sponse, is rogation cease). Miranda, in pointed out as the Court discretion to de- investigating officer has held, however, Most courts have waives termine whether the accused response permissible there is also another 55, 486 n. 86 right 384 at to counsel. equivocal request to an counsel: a for Nevertheless, per- n. at 1634 55. designed question, questions, series of or clarification must seek response missible clarify only suspect to does or whether inducement,” persuasion “without attorney does not consult with an want to 1082, 888, Moulds, P.2d at 673 See, 105 Idaho continuing interrogation. before argu- of an “may the form not take e.g., Cherry, 733 F.2d and United States v. suspect interrogators United v. 1124, (5th Cir.1984); ment States 1130 between 444-45, Miranda, In Fare v. at 1612. pertinent language at C., 86 S.Ct. con- 384 U.S. 19. The 2560, 99 S.Ct. 442 U.S. Edwards, Michael following: strued in is the (1979), called the Court 61 L.Ed.2d any indicates in manner defendant] [If one, noting Mi- "rigid" that under rule process any stage he [or attorney request an for “an accused’s randa attorney before to consult with an she] wishes Amendment of his Fifth per an se invocation questioning. speaking there can be no interrogation cease.” rights, requiring that all having about whether counsel would be in V. RUFFIN: PHYSICAL EVIDENCE suspect’s Thompson best interests.” given Once Ruffin had his inculpatory (5th v. Wainwright, F.2d Cir. statement, oral it became clear that he was 1979). may inquiry Nor the limited permis not free to police leave. The said they equivocal sible after an request “incorpo second, wanted a and, written statement presumption by interrogator rate a to therefore, obtained a written waiver of Mi- suspect tell the what counsel’s advice rights, implying randa their own belief him would be if were [or her] [counsel] that Ruffin custody. was now in This present. foreign Such measures are time, too, Ruffin had been more attentive purpose clarification, which is not to to the warnings, Miranda asking whether persuade but discern.” Id. lawyer. he needed a He thereby implied his own belief he was response

Detective Muse’s not free to to Ruf leave. equivocal Accordingly, expression fin’s we have of interest concluded that at counsel least the time protect began was insufficient to Detective Muse right statement, to counsel under take Ruffin’s Edwards. written Muse sought not clarify custody whether was in for pur- Ruffin want Fifth Amendment ed attorney persuade poses. but to him that he presumed not need one. Muse give All seizures claimed to violate the legal advice: lawyer that no Fourth Amendment must be evaluated to

necessary long as “it was self-defense.” determine whether a seizure was reason implied He all Ruffin had to do was to considering opposing able interests of tell story up his side of the to clear right the defendant’s privacy and the misunderstanding, and that since he had duty officer’s prevent to detect and acted in “self-defense” the events of the Summers, crime.20 Michigan See evening su enough were not serious to war pra, 697-98, 452 U.S. at rant S.Ct. at 2591- counsel. 92; Allen, supra, 436 A.2d at 1307. Even “right surely advice of counsel though pants took Ruffin’s right counsel, to advice from not from shoes after violated his Miranda interrogator,” Thompson, 601 F.2d at rights obtaining statement, his written Accordingly, we hold that on the we conclude that the seizure was reason facts of this case deprived Ruffin was able under the Fourth Amendment.21 right counsel, his Fifth Amendment gave that the statement he subsequently After the had taken Ruffin’s writ- response interrogation, statement, to further reduced ten they took his trousers and writing by Muse, shoes, Detective apparently was there- to check blood sam- fore inadmissible at trial. ples. apparently The trial court denied the against govern- contends that Ruffin did not all the evidence Ruffin. The clothing claim in the trial court that his seized object ment did not or seek reconsideration. suppressed should be and cannot raise the issue trial, Before new counsel announced defense States, Irby now. v. United 342 A.2d suppress that he would the motion to but renew (D.C.1975); 807, States, Anderson v. United 326 A.2d by prior in broader terms than the motion filed (D.C.1974), denied, cert. disagree Accordingly, counsel. we with the (1975); 43 L.Ed.2d 659 D.C.Code government's issue contention that the was not 23-104(a)(2) (1981); Super.Ct.Crim.R. § raised. 12(b)(3). The maintains it there- fore did not introduce evidence to show 21. The trial court found that Ruffin had con Ruffin had consented to the seizure of his may affirm the sented to the seizure. This court clothes when he had been at the homicide office suppress of which is correct denial a motion approximately suppres- four hours. At the ground. as a matter of law on another Daddles hearing urged sion defense counsel the court to 59, States, 64 (D.C.1979). We v. United 399 A.2d suppress all the evidence secured question of whether the exclu do not reach at the homicide office. The trial court an- sionary applies of a rule to "fruits" Miranda sup- nounced that it would treat the motion to States, Derrington A.2d violation. v. United 488 press encompassing Ruffin's statements as 1314, (D.C.1985). 1330 and n. 21 physical objects. well as the The court also clothing referred to the in its decision to admit suppress ground potential burglary); of of on the that Ruf- instrument crime motion to clothing, 357, like his Bailey, supra, U.S.App.D,C. fin’s surrender 128 at making statements, altogether was vol- (wallet of in 308 on floor car 389 F.2d at untary, not the result of a seizure. We stopped police). premise. Ruffin

reject Once custody, purposes, he for Fifth Amendment RUFFIN: HARMLESS ERROR VI. for Fourth Amendment had been seized Ruffin’s oral statement and clothes Since Gayden, 492 A.2d at 872 n. purposes. See properly be introduced in evidence could supra Part III. 8; B. him, against question whether statement, oral which Ruffin’s rights in of his Fifth Amendment violation striking “stomp-kicking” admitted obtaining his written statement was harm decedent, provided independent evi Derring beyond less doubt. reasonable nec probable cause dence to establish ton, 1330; supra note Lew 21, 488 A.2d at justify the seizure.22 See Silvert essary States, (D.C. A.2d 1125 v. United 483 States, 251 v. United horne Lumber Co. 1984) (error voluntary admitting state 392, 182, 183, 385, 64 40 L.Ed. U.S. S.Ct. Miranda ment obtained violation of held supra note 21, Derrington, (1920); 488 319 beyond to be a reasonable doubt harmless probable cause al A.2d at 1330. Where present of statement since substance exists, ready carefully tailored search other, through jury ed to untainted testimo prevent of and seizure to destruction ny); Chapman California, 386 U.S. 18, v. readily inci destroyed evidence is deemed (1967); see 824, 87 17 L.Ed.2d 705 S.Ct. arrest, suspect to a lawful even if the dent 371, Wainwright, also Milton v. 407 U.S. arrested.23 Rawl formally has not been 2174, (1972) (harmless 1 92 33 L.Ed.2d S.Ct. 98, 111, Kentucky, v. ings 448 100 U.S. beyond a doubt to admit state reasonable 2556, 2564, (1980); 65 633 L.Ed.2d S.Ct. deliberately ments elicited after Sixth 291, 296, Cupp Murphy, v. 412 93 U.S. attached); right Amendment to counsel had 2000, 2004, (1973); 36 S.Ct. L.Ed.2d 900 States, 477 A.2d 720, Miley v. United 724 States, Bailey v. United U.S.App.D.C. 128 (D.C.1984) of (improper admission state see 354, 357, (1967); 389 F.2d 308 during interroga ment obtained custodial York, 40, 66-67, v. New Sibron 392 U.S. 88 doubt). beyond a tion harmless reasonable 1904-05, (1968). 20 L.Ed.2d 917 S.Ct. Upon transcript, of we review the trial pants and The took Ruffin’s shoes to possi not “a reasonable conclude there was examine them for traces the decedent’s might statement blood, bility” that written They reasonably skin and hair. have to Ruffin’s convictions. anticipate destroy would contributed could supra, 386 U.S. Chapman California, v. homi this evidence if allowed leave the (quoting Fahy v. clothing.24 Compare cide office with his 87 S.Ct. at 827 supra, Connecticut, 85, 86-87, Rawlings Kentucky, v. 84 U.S. at 110-111, (1963)). (money 229, 230-31, S.Ct. at 2564-65 L.Ed.2d knife); Cupp supra, Murphy, against government’s evidence (“highly at 2004 evanescent overwhelming without the writ Ruffin was Sibron v. fingernail samples); evidence” It included the ten statement. York, supra, 392 U.S. at New Mitchell, friend, Donald close (in course limited S.Ct. at repeatedly “stomping” search, seized as who saw weapons’ burglary tools warrant Dyson, on an arrest 22.According 23. Ruffin was arrested Ruffin told to Detective days been the homicide office. after he had heard his sister had after he left him that Wilson, necessary sup- raped by Wilson in his he had found were not search fruits apartment house. He asked Wilson sister’s come back to the port probable him. cause to arrest apartment things over. to talk him, responded by attempting to kick Wilson co-defendant, Shaw, had told Ruffin 24. The proceeded and to de- and blocked the kick he shoes, tried to and he had wipe the off his blood interchange that followed fend himself. VI. supra and Part Part I so. do See infra supra in set forth note Wilson the face with his foot. booted testified that when Ruffin returned he told Mitchell testified that he had seen Ruffin worry his sister not to “everything because apartment run out of his sister’s look of,” is taken care and that Shaw had said finding crying after Wilson sister and he would take everything. care of A being hysterical raped and told Wilson had neighbor overhead Shaw instruct Ruffin to building. her and was still Mitchell cool, stay and confirmed that Ruffin had had followed search of Ruffin oth- after wiped from blood his boots. The medical apartment him ers at told to find Ruf- evidence was consistent with Mitchell’s de- fin, scuffling and heard above as he left actions, scription of Ruffin's establishing apartment. upstairs He went and saw damage that Wilson had suffered brain “stomping” Ruffin Wilson. Mitchell was being head, a result of beaten around the permitted jury to demonstrate for the how upon was comatose hospital arrival at the Ruffin had kicked Wilson. Mitchell also consciousness, and never recovered and grab testified that he had to Ruffin and injuries that the head were the cause of pull away, him that there a lot of was blood later, death five months when Wilson con- head, around Wilson’s and that Wilson was pneumonia causally tracted related to his addition, semiconscious. In Mitchell testi- injuries. head say any- fied that Shaw told Ruffin not to presented Ruffin’s oral statement26 was arrived, thing wipe when jury through Dyson’s Detective testi- shoes, blood off his and that he had [Shaw] mony. said, according Dy- Ruffin had apprehended suspect and would take son, attempted that Wilson had to kick him testified, everything. care of Mitchell also he “blocked that blow and countered after Shaw’s sister had testified how abu- blows, with several and then eventually be, that, (or night sive could on Wilson stomped Ruffin had also ad- [Wilson].”27 early morning) question, Ruffin had not being mitted trained in the martial arts and wanted sister Bumetta and her friend using his martial skills in the incident. go to with Wilson in his car when party left the “because knew how [Ruffin] Ruffin’s written statement was read to give was and said that he would [Wilson] jury by Detective Muse.28 The state- a ride home.”25 [his sister] exculpatory ment was insofar as it set forth Ruffin’s claim self-defense. On Other friends and relatives of Ruffin examination, direct Ruffin testified apartment that the who were corroborated always written statement did not accurate- Mitchell’s about the circumstanc- preceding following ly police. es con- state what he had told the He gone explained frontation with Shaw’s sister also that he had to find the Wilson. thought 25. Shaw's sister also testified that she kicked him “once with a full house and two PCP, using day straight stomps.” Admitting Wilson was and that later that that he "did down Ruffin, station, leaving him,” as he was job probably and had kicked him lucky nigger said "He ain’t dead.” See forehead, nose, [was] around the mouth and Ruffin also note 28. infra claimed that when he last saw Wilson he was blood, still conscious. Ruffin saw a lot of supra 26. See note 1. unsuccessfully wipe had tried the blood off waited in government’s his shoes. He also said that he had that Wil- 27. The witnesses testified apart- hallway put arrived and told son had been out of Ruffin’s sister’s until the although ment without his coat or shoes it was a also claimed that he had him to leave. Ruffin very night. deny cold that Wil- Ruffin stopped kicking Wilson when someone said "It’s son barefoot. it,” doing not worth and denied that he was himself; anything defending than more statement, In his written Ruffin claimed that lesson, teaching viewed his actions as Wilson Wilson, approached as he push Wilson had tried to mistreating ”[y]ou keep going can’t around hallway then him down the stairs and nothing happen.” people expect punch punch, tried to him. Ruffin blocked the Wilson, get along with who admitted he did not left-right and hit Wilson “with a combination to thought just “herb another one of them tried both sides of his face.” Wilson fell and smoking Niggers,” boxed Street and that he had grab push Ruffin’s feet and him down the stairs. and taken karate. kicking explained Wilson that he started steps. keep being pushed He down the government prove apart- to ask him to return to the the that Ruffin had decedent over, apartment the things gone he to his sister’s ment talk but before kill or him specific intent to Wilson hated do the in could so decedent kicked him him, hostility the or felt toward because groin punched several times him.29 the and requisite malice was demonstrated disputed testimony he He Mitchell’s heart reck- showing Ruffin “had a that was subsequently pull had to Ruffin off Wilson safety of life and of Clifford Wil- less the he and that Wilson was not conscious after closing nearly argument, son.” In rebuttal him; he kicked Ruffin claimed had decided of on the co-defendant all which focused stop on his own and that Wilson was Shaw, asking the prosecutor, jury the in getting up as and Mitchell left.30 On murder, degree convict Ruffin of second cross-examination, Ruffin held steadfast to manslaughter, and not mentioned his claim he acted in self-defense. his remark in written statement that did prosecutor only questions by regarding not like Wilson as one of several reasons brief, Ruffin’s written statement were ask- conviction, princi- for a murder but focused page, did ing if he had initialed each said he revenge sought for pally on the Wilson, in not like and had a brown belt rape Accordingly, of his view of sister. karate. case, government’s strength of the and Although government present not exculpatory and cumulative nature eyewitness testimony mo- the initial about statement, the written we conclude that the ments Ruffin’s confrontation with Wil- admitting statement at error in the written son, description witnesses’ beyond trial harmless a reasonable was of the circumstances and after the before doubt.31 strong govern- produced very incident claiming testimony ment case. Ruffin’s RUFFIN: LESSER INCLUDED VII. with his oral self-defense was consistent OFFENSE INSTRUCTION portions his statement and the material note, contrary Ruf we Finally, written statement. assertion, properly trial fin’s that the court testimony his differed To extent that jury lesser on the declined instruct his from oral and the statement manslaugh involuntary included offense of friends, of his relatives and Ruffin’s testi- best, supports at for ter. The evidence impeached, mony impeachment was and Ruffin, apply dan an inference of intent provided cu- by the written statement was (voluntary bodily injury gerous force or do statement not, mulative. Once Ruffin’s written alleges, manslaughter), as evidence, prosecutor’s referenc- was a misdemean- inference of intent commit assault, involving or, simple es it and sum- comparatively to were brief as such lengthy injury. States v. mary in in the such or See United nature course of force (D.C.1975). 344 A.2d 208 closing argument. Bradford, and cross-examination argument beginning closing At the of his VIII. SHAW’S CONTENTIONS prosecutor jury, told the in accordance trial Appellant contends the with the trial court’s instructions to Shaw ruling, after discretion in malice, for court its jury unnecessary it abused that was gun hitting butt with the saw Shaw Wilson took issue with various non-es- 29. Ruffin also statement, kicking and him. written such sential details his sitting car sister was before in whose decedent, harmless, he knew analyzing with the whether altercation the error whether 31.In terms, Supreme colleague he had known Shaw dissenting karate and whether relies on our eight years. concerning ten confessions coerced Court decisions totally different under circumstances obtained Moreover, concluding that here. were from those testified that as he Mitchell 30. Ruffin heavily, apparently in prosecutor apartment, relied way met back to the on their exclusively, writ- on Ruffin’s apart- go the dissent’s view told them back Shaw who ignored statement, colleague Ruf- has our ten upstairs Ruffin then went himself. ment and heard, of Ruf- other evidence oral statement turning fin's the corridor as he night/morn- on the Wilson coming up- attitude toward thumping” fin's steps, “some loud stairs, ing the assault. being hit." He turned “like someone inspection, por- injured an in camera that certain attempting ap- Wilson while prior govern- prehend tions of statements of three him. did not ment witnesses need to be disclosed Accordingly, affirm we Ruffin’s convic- Act, Super.Ct.Crim.R.

under the Jencks see second-degree tion of murder and vacate Act, (implementing 26.2 Jencks 18 U.S.C. mayhem, his conviction of affirm we (1982), Columbia). in the District of § Shaw’s convictions. subject testimony of all three Affirmed. witnesses a each was conversation that assault, had with at the time of the in Shaw MACK, Judge, concurring Associate in injured which stated that he had Shaw Wil- part dissenting part: in son in the course of an arrest. We have Today majority of this division takes examined the undisclosed documents and giant step a trampling towards the consti- that none of them to the “relate[s] find protections guaranteed by tutional subject matter of the of the wit- Fourth and Fifth Amendments. It treads 3500(b). under 18 U.S.C. ness[es]” § dangerous ground holding, in contrary Therefore, the trial court did not abuse its reasoning to the of the United States Su- holding government discretion in that the cases, preme in Court numerous that the required produce was not these state- admission into evidence at trial of a written States, ments. v. See Reed United confession in obtained violation of the Fifth 725, (D.C.1979). A.2d 732 n. 9 Amendment can be harmless error. The by Shaw also asserts the court erred trial majority goes on to find the error harmless instructing jury testifying that a de- doubt, beyond spite in reasonable of a fendant has an interest in the outcome of unequivocally record that con- groundless. the trial. That claimed error is trary. Finally, startling it reaches the con- Hill, U.S.App. See United States v. clusion, indistinguishable on facts D.C. 470 F.2d present York, Dunaway those in v. New (cited States, in Dyson v. 450 A.2d United 442 U.S. 99 S.Ct. 60 L.Ed.2d 824 (D.C.1982)). (1979), that the has been re- proving heavy lieved of its burden of that a Finally, ample we find evidence suspect voluntarily Fourth waived a support Shaw’s conviction as an accesso right illegal Amendment to be free from ry simple after the fact to An assault. seizure, merely because a trial court has accessory after the fact is one who assists questioned credibility suspect. of that principal apprehension punish to avoid holdings go beyond I find these (1981). ment. D.C.Code 22-106 § reason, outer limits of constitutional case- government’s evidence showed Shaw law, or common sense. I therefore do not affirmatively attempted po to mislead agree appellant Ruffin’s second-de- thinking lice into that Shaw had been gree can affirmed.1 murder conviction be injuries upon forced to inflict the Wilson the course of an arrest. Six officers I separate testified six conversations AMENDMENT FIFTH ISSUES Shaw had told them that he had inflicted guaran- injuries. Fifth Amendment That statements were Because the Shaw’s designed person compelled shall culprit to aid the true to avoid tees that no “be against apprehension case to be a witness is made even clearer criminal herself],” law enforcement offi- testimony told Ruffin not to talk himself Shaw [or constitutionally extract invol- wipe cers cannot and to the blood from his open I not think it untary shoes confessions. do addition Shaw’s statement Supreme that the States question that he would tell the authorities that he United accessory mayhem conviction. after the fact 1. 1 concur in the reversal of Ruffin’s Shaw’s conviction and the affirmance of codefendant comprehension of has never applied “harmless error” It “full Court following analysis uphold conviction right request attorney,” to ... that can post- into evidence of the introduction dispel is inherent in the the “coercion [that] contrary to Miranda confession obtained Moran Bur interrogation process.” Mi that decision. See mandate bine, supra, 106 S.Ct. at 1144. Because Arizona, randa v. ignored responsibilities Officer Muse his 1602, (1966). 694 16 L.Ed.2d under Edwards and Miranda fairly in counsel, right form Ruffin of his long recognized been there is It has that in interro- “compulsion compulsion inherent custodial and nature of inherent coercive Burbine, v. gation,” Moran 412, 475 interrogation U.S. process never dissi 1135, 1143, (1986), L.Ed.2d 410 106 89 S.Ct. pated. being fully informed of his Without interrogation process is ‘in- “the that interrogators fully rights, respect and his ” coercive,’ id. 106 S.Ct. at 1144. herently ing any rights, no attempt to exercise those Miranda, purpose of the rule in that The given by to Officer Muse statement interrogation an individual under product his “truly could ever be of free government authority must be informed of Miranda, supra, 458, U.S. at choice.” 384 counsel, right part dissipate in is “to S.Ct; at 86 1619. Burbine, v. su- Moran compulsion.” th[is] pra, “Fifth Amendment 106 S.Ct. A rights adequately protected be ... c[an] suspect clearly if the understands] right majority The is therefore con- that at time he call in ... she] c[an] [or cluding that the written confession was attorney give an advice monitor involuntarily in the Fifth taken violation of Id. interrogators.” conduct of his [or her] Amendment; wrong concluding it is that at 1144. the erroneous admission into evidence of

Appellant Antone Ruffin’s Fifth Amend- by Officer the statement obtained Muse protected right compelled ment to be through stratagem unconstitutional case, self-incrimination was violated in this require of does not automatic reversal Ruf- concedes, by the majority Officer Muse’s Jackson, Michigan v. fin’s conviction. See responsibility of to in- circumvention supra, 106 S.Ct. (affirming reversal to counsel. Ed- right form of his statement was taken of conviction where Arizona, 481-82, wards v. 477, 451 U.S. following that request counsel 1880, 1883-84, 101 S.Ct. 68 L.Ed.2d 378 notwithstanding of ignored, existence sev- — Jackson, (1981); Michigan see v. U.S. and without eral other valid confessions -, 1407, 1404, 106 S.Ct. 89 L.Ed.2d 631 Ed- analysis); error engaging harmless Edwards, (1986). Supreme Court wards, supra, 477, U.S. 101 S.Ct. 1880 per se request held that a for counsel “is following (admission of confession obtained of Fifth invocation Amendment [ ] right to attempt to exercise coun- thwarted rights, requiring interrogation all conviction; weight requires sel reversal 485, cease.” 451 U.S. at S.Ct. at introduced sufficiency of other evidence majority agrees equivocal that Ruffin’s issue). trial is not an request fur- required for counsel at least require re- errors constitutional “[S]ome request inquiry concerning ther before regard to the evidence in the without versal any interrogation fur- could resume. No — Clark, particular case.” Rose v. inquiry ther was made. conclusion -, 3101, 3106, 92 L.Ed.2d 460 106 S.Ct. show- circumvention buttressed facts recognizes (1986). limitation “This ing Muse, reacting to Ruffin’s that Officer necessarily trial render a fun- errors some request, actually suspect convinced the Id. The admission damentally unfair.” that on facts case —since he was of his involuntary into evi- statement claiming need a self-defense —he error, requires that is one such dence Ruffin, no lawyer, who had had regard set aside without conviction be sys- prior dealings justice with the criminal evidence tem, weight any additional believed officer. trial. See id. 106 cess against introduced him at requires automatic reversal convic- (Stevens, J., (“The concurring) at 3111 S.Ct. part tion founded in whole or in upon invol- conviction); admission of a coerced confession can Haynes Washington, untary nev- v. though

er be harmless even 503, 518-19, the basic trial 1336, 373 U.S. 83 S.Ct. 1345- process completely otherwise fair and (1963) (due process 10 L.Ed.2d 513 re- guilt overwhelming”); evidence of quires automatic regard reversal without Chapman California, v. 386 U.S. 23 & weight evidence; indeed, of other n. 827 & n. 17 L.Ed.2d cases, many “independent such corroborat- (introduction of a coerced confes- ing evidence left little doubt as to the truth one of sion violates the “constitutional confessed”); of what the defendant had rights so basic to a fair trial their Illinois, Lynumn 528, 537, infraction can never be treated as harmless (1963) (claim L.Ed.2d 922 error”) (cited contrary proposition for the involuntary that introduction of confession 705; ante id. at majority, the see at “was a harmless in light the [error] 42-43, (Stewart, J., 87 S.Ct. at 836-37 con- other guilt[] evidence of the [defendant’s] (same); 7, id. at 52 n. curring) 87 S.Ct. at doctrine”); Rogers impermissible ... is an (Harlan, J., dissenting) n. 7 (“particular 842 Richmond, v. 534, 540-41, 365 U.S. 81 S.Ct. types [including of error the introduction of 735, 739, (1961) (due 5 L.Ed.2d process 760 involuntary have an effect confessions] requires following reversal of conviction devastating inherently is so which inde- confession, involuntary introduction of re- terminate that a as matter of law evidence, gardless of other because “ours harmless”).2 reasonably cannot be found inquisitorial is an accusatorial and not an system system in which the State must Supreme repeatedly Court has so —a guilt by independently establish evidence emphatically rejected applica- held and has York, secured”); Spano freely v. New tion of harmless error doctrine to er- See, 315, 324, 1202, 1207, 360 U.S. e.g., Michigan v. type. rors of this 79 S.Ct. 3 Jackson, supra, (1959) (admission (automati- L.Ed.2d 1265 106 S.Ct. 1404 involun- cally tary requires remanding for confession automatic rever- new trial without con- Arkansas, sal); 560, 568, Payne v. harmless); sidering 356 U.S. Ed- whether error was wards, 844, 850, (1958) supra, 451 477, 78 2 S.Ct. L.Ed.2d 975 U.S. 101 S.Ct. 1880 (“where, (same); here, Lego 477, 483, a Twomey, v. 404 coerced confession con- U.S. 619, 623, part (1972) (it stitutes a of the evidence the 92 S.Ct. 30 before L.Ed.2d 618 returned, jury general is verdict is no “axiomatic ... that a defendant in a say weight one can what deprived process criminal case is credit of due founded, jury gave to in if the confession. And these law his conviction is [or her] uniformly circumstances this Court has part, upon involuntary whole or an con- though may held that even there though fession have been ample ... even there is apart sufficient from the evidence aside evidence coerced sup- from the confession to conviction”); support judgment Chapman v. Califor- port the confession to of convic- tion, nia, evidence, supra, 8, 386 U.S. at 23 & n. admission over 87 S.Ct. in[to] (constitutional objection, of coerced confession at 827 & n. vitiates 8 harmless error judgment because it violates the Due apply doctrine does not to introduction of California, v. confessions; Clause”); Stroble involuntary Process reversal is auto- 599, 603, Denno, 181, 190, Jackson v. matically required); 343 U.S. 72 96 378 S.Ct. 376, 368, 1774, 1780, (1952) (if U.S. 12 L.Ed. is 84 S.Ct. 872 a confession “invol- (1964) (axiomatic stand, pro- untary, L.Ed.2d 908 even that due the conviction cannot Apart misciting Chapman, majority corpus proceeding 2. in a habeas confession —a upon Supreme authority, relies outlining one other Court prior obtained to the Miranda decision 371, Wainwright, Milton v. 407 U.S. 92 S.Ct. requirements for custodi- the Fifth Amendment (1972), support 33 L.Ed.2d 1 its conclu- interrogation; confession was also al the Milton theory may applied sion that harmless error to the introduction of a coerced confession. be "voluntary” by the state courts as characterized Su- without contradiction the United States little, any, Milton has if relevance to this case. preme Court. challenged That decision involved confession

709 ruling guar- though apart from that con- states a basic evidence the Miranda might given to Americans have been sufficient to sus- antee that was fession verdict”); history of custodial jury’s Constitution and tain the Malinski v. New [the opinion] 401, 404, 781, 783, interrogation forth in that York, set 65 S.Ct. happens guarantee (introduction what if that (1945) reveals 89 L.Ed. 1029 of such a Making light Mi- not honored. judgment of con- requires confession error, doing grave is a for in so randa though aside viction be set “even evi- can be one belittles our freedoms. That might apart dence from the confession back to or to 1800 or road jury’s been sufficient to sustain the have It is a road on which should we verdict”); Oklahoma, v. Lyons U.S. willingly set foot. 1,n. n. (“Whether (1944) or not the L.Ed. Attack, Rose, The Wash- ‘Miranda’ Under evidence in the record other sufficient Post, 25, 1986, A21, ington col. Nov. general justify guilty verdict of is not B If necessary to consider. ... such admis- sion of this confession denied a constitu- accept premise Even we were right requires tional to defendant error court, permits the caselaw reversal"); States, Bram United 168 reaching disposition, its measure 532, 541, 42 L.Ed. weight over introduced trial evidence (“If confession found to confession, [a is] involuntary and above admitted, illegally have been reversible er- majority position. would be no better result, prosecution ror since the will cannot case, reading of the facts of this no fair On prove on the one hand offer evidence to permit the record can the conclusion that guilt, by very the offer which of Ruffin’s the admission into evidence end, tending vouched for as to that and on was harmless statement Detective Muse purpose avoiding the other hand the of proving its case prosecution, error. The consequences by the of the error caused its murder, second-degree charge for the of admission, wrongful be heard to assert that involuntary entirely upon this relied almost the as matter offered a confession was not an- majority painstakingly The statement.3 prove it prejudicial because did not tend to there is alyzes question of whether the guilt”). prove that it other evidence in the record injuries lead- the was Ruffin who inflicted “[Vjiolations of certain constitutional victim, ing apparently the to the death of not, rights be, subject are and should not disputes that realize that one failing to no analysis harmless error because those the fatal it Ruffin who delivered rights protect important that are values Indeed, himself testified Ruffin blows. truth-seeking unrelated the function of re- once that effect. Justice Frankfurter Clark, supra, the trial.” Rose v. 106 S.Ct. you de- question ask that “On the marked (Stevens, J., The concurring). 3111 ad- Ridge you get.” Bay pends answer the into state- mission evidence of custodial Aaron, 334 U.S. Operating Co. v. Fifth ment obtained without Amendment 1186, 1206, 92 L.Ed. 1502 violation, requires safeguards, one such as Here, majority the (dissenting). because and fair be afforded new ar- wrong it has question, the posed has con- majority’s trial. The conclusion to the wrong answer. rived at inherently prej- trary only not sanctions the jury wheth- was not involuntary The issue before udicial introduction of confes- death, victim’s sions, posi- had caused the puts but court in the er Ruffin also malice with the he had done so condoning proce- but whether tion of official violation of second-degree mur- of necessary to convict safeguards designed protect dural malice, finding a contested against police activity. As der. The citizen unlawful prov- mind, peculiarly within the reminded, press recently state of inadmissible, played is summa- in the trial involuntary, role it confes- The central 3. The written Appendix B. Appendix rized in sion is set forth in A to this dissent. 710 jury; generally

ince of the it is not one a reasonable doubt.” United States v. Al fairly exander, which this court can make from a U.S.App.D.C. 371, 392, States, 944, cold record. See Jones v. 923, denied, United F.2d cert. (D.C.1987)(“Intent being 516 A.2d (1972). L.Ed.2d The mind, by a state unless admitted correctly trial court instructed jury defendant, it must be shown circum- that, in order to make a case for second-de way stantial evidence ‘because there is no murder, gree prosecution required fathoming scrutinizing the human “prove beyond a reasonable doubt that ” added; omitted)); (emphasis mind’ citation not injure defendant did deceased States, see also Shelton v. United 505 A.2d passion, by adequate the heat of caused (D.C.1986) (same). majority provocation,” if the jury and that did find unrealistically ignores the obvious effect of passion/provocation, heat of re “[t]hat presented jury what was as Ruffin’s charge] manslaughter.” duces [the own admission of malice. It then finds the jury court also instructed the on the by engaging error harmless in subjective government’s prove additional burden to evaluation other evidence which is neces- beyond a reasonable doubt that Ruffin was sarily open conflicting interpretations acting in self-defense. so, doing majority to intent. never The inadmissible written statement was explicitly finds the malice which is a re- prosecution anything the sole evidence that quired part analysis, harmless error rape other than the news of his sister’s it perfunctorily treats Ruffin’s claim of fighting motivated Ruffin in with Wilson. self-defense,4 and it omits even to mention statement, Nothing in Ruffin’s oral see ma- adequate Ruffin’s alternative defense of jority opinion, at note or in ante provocation caused the news of his sis- testimony adversely described his mental rape.5 ter’s state at the time of the incident. In con- admitting challenged The error trast, statement, in the written Officer if, statement could be harmless be- Muse recorded that he had asked yond doubt, it “did not con- reasonable Wilson, victim, Clifford was a friend of Chap- tribute to the verdict obtained.” “Nope, responded, frankly his. Ruffin we California, supra, man v. 386 U.S. at get along. don’t As far as I am concerned Here, 87 S.Ct. at 828. the converse is true: just he is another one of them ‘herb-smok- there can be no that doubt the written ” ing Niggers.’ Ruffin then re- Street statement did contribute to Ruffin’s sec- “teaching marked that he was [Wilson] ond-degree murder conviction. The lesson, you keep going can’t around mis- government’s case showed that Ruffin’s treating people expecting nothing and combat upon with Clifford Wilson followed happen.” given information to him that Wilson had introducing critically In addition to raped government’s Ruffin’s sister. The case-in-chief, damaging in its the admission put case thus issue Ruffin’s defenses to government extensive use of it in murder, made second-degree killing that the was closing arguments. opening upon both its adequate provocation committed or in government opening, In for the “[Wjhen self-defense. counsel a defense to second hear, stated, Ruffin, degree you’ll adequate provocation, “Antone murder — issue, example put animosity toward Clifford Wilson.” been some —has prove prosecutor said beyond opening Government must its absence Later in the voluntary manslaughter; accepted, Ruffin was If the self-defense claim would have ment for issue, required acquittal. years On this it is notewor- to life for his second-de- sentenced to ten himself, thy nobody, apart from Ruffin that gree conviction. murder stages struggle opening witnessed the of Ruffin’s with the victim. majority cryptically to "other evi- 6.The refers victim; towards the dence” of Ruffin’s attitude accepted, adequate provocation 5. If claim that evidence is. nowhere does it indicate what second-degree would have reduced Ruffin’s Majority opinion, ante at note voluntary manslaughter. murder conviction to Fifteen years imprison- is the maximum term of

7H against persons, like Wilson. their ... unreasonable Ruffin “didn’t Clifford that seizures, dealings had had some searches and shall not be violated Wilson Clifford cause_” family upon probable didn’t In addi- before ... but [Ruffin] [Ruffin’s] inadmissible, coming involuntary, him. Clifford Wilson it writ- like tion to the sorry.” statement, upon him and wasn’t relied ten [Ruffin] evidence of an oral the admission into prosecutor back to this state- went clothing. The statement and blood-stained urged closing argument. in his He ment requires Amendment that Fourth verdict consist- jury “to return police, and oral statements to the written is, case, in the the evidence that ent with pants and seized together with the shoes against second-degree murder Antone Ruf- him, suppressed be as the fruits I you The reason that would ask fin. custody. Ruffin seized his unlawful second-degree murder rather than return head- police and taken manslaughter that Antone has probable quarters without cause. his statement told the show government did not Wilson, he didn’t not like Clifford right Amendment to be waived Fourth like him.... Antone Ruffin didn’t like seizures or that he had free of unlawful Maybe thought that this Wilson. Cliff accompany consented try good get back excuse government unquestion- stationhouse. The why or That is Cliff Wilson whatever.... to show a ably has burden waiver murder, second-degree this is ladies to do so rights fundamental and its failure (Em- manslaughter.” gentlemen, and not required evidence here that all obtained added.) defining In malice for phasis sup- be virtue of the unlawful seizure prosecutor said malice jury, pressed. “doesn’t mean that hated Clifford [Ruffin] hostility or that he felt toward Clif- Wilson The issue whether statements necessarily mean ford Wilson. It doesn’t sup- have physical evidence should been things. come things

those But those can pressed as the fruit of Ruffin’s unlawful added.) play.” (Emphasis into ques- entirely distinct from the seizure sum, prosecution entirely relied written statement tion of whether Ruffin’s Ruffin’s written statement to meet its bur- obtained in violation to Detective Muse was doubt, disprove, beyond den to a reasonable Amendment, ques- the Fifth and the two passion upon self-defense heat of ade- analyzed separately. must be Lanier tions and, addition, quate provocation relied Carolina, v. South malice, necessary it ele- upon to show curiam) (1986)(per 88 L.Ed.2d second-degree The sec- ment murder. held (summarily remanding decision which conviction, ond-degree by pros- the murder voluntariness of confession obtained that definition, own was on the ecutor’s based illegal purged taint of following seizure the inadmissible, involuntary, state- written seizure, na- reemphasizing separate that ment; its cannot admission into evidence Fifth Fourth and Amendment ture of possibly be For characterized harmless. Alabama, analyses); Taylor v. 457 therefore, if harm- this reason alone even 2664, L.Ed.2d S.Ct. apply, error does Ruffin’s con- less doctrine (similar). viction must be reversed. undisputed picked Ruffin was It is police offi- his sister’s home two up at II transported squad in the back of cers and

THE AMENDMENT FOURTH It is also undis- police headquarters. car to VIOLATION police picked officers the puted that when probable cause view, they without up, no him did so my In if there had been even case, It is fundamental or seize. in to arrest Fifth Amendment violation this is an activity by type of still reversed. Ruffin’s conviction must be agreed target has provides illegal seizure unless The Fourth Amendment right and Amendment in his Fourth to to waive right people be secure “[t]he accompany response Branch.” Ruffin’s voluntarily to the Homicide has consented York, supra, not police. Dunaway v. New recorded. Officer Brown testified govern- Ruffin, The pick up 99 S.Ct. at 2253. U.S. at that he was ordered to and establishing a ment “has the burden of “[apparently someone stated that at the waiver,” Jackson, supra, Michigan v. valid Branch had in fact talked to Mr. Homicide (citation omitted). 106 S.Ct. at 1409 Our apparently voluntarily and he was Ruffin reviewing “indulge is to function as a court coming Although down.” Officer Brown against presumption every reasonable asked, if testified that Brown fundamental constitutional waiver car, him would have let out Brown’s Zerbst, (quoting rights.” Id. Johnson regard thoughts in this were never commu- 1019, 1023, 58 S.Ct. 304 U.S. Ruffin; neither Brown nor nicated (1938)). re- “Doubts must be L.Ed. way any in indicated to Ruffin Williams protecting in favor of constitu- solved accompany to refuse to that he was free claim.” Id. tional them. protect constitutional Rather than contrast, po- Ruffin testified that the claim, “indulge ev- majority chooses spoken Harvey, Ruffin’s lice had Sebert and unrea- ery presumption,” reasonable Ruffin, sister, not to sonable, government. The favor agree not informed her that Ruffin did prosecution made case that Ruf- never headquarters down to a bench come war- fin his Fourth Amendment had waived for his arrest. rant would be issued The right unreasonable sei- to be free from prosecution never rebutted this statement. testimo- majority relies on the zures. majority opinion, (“despite See ante at 698 sup- ny Dyson. Hosea At the of Detective warrant’ Ruffin’s ‘bench —and hearing, Dyson as fol- pression testified knowledge despite officers’ own address “I called home lows: [Ruffin’s] had said to them and of what what Ruffin office asked him to come down to the had, not, or had said to Ruffin’s investigation.” The to our reference officers left out a vital testi- sister—all the asked, “And did he do so prosecutor then police requests link monial between the “Yes, responded, voluntarily?”. Dyson them”). willingness accompany however, Dyson, pick sir.” nearly Supreme Court evaluated a up by Officers Terra Alex- was done —that Dunaway, supra, identical set of facts Dy- ander and James Brown—and Williams There, without knowledge no of whether son therefore had cause, police supervisor ordered agreed accompany probable Williams Ruffin had voluntarily pick up petitioner Dunaway or not. Ruffin later detectives to and Brown spoken Ruffin, bring Dunaway he had never testified that him in. Like Dyson Dyson and at the trial phone to under arrest. He not told that he was by hearsay testify, until cut off headquarters po- started in a was driven Lieutenant Alexan- objection, that it was a interrogation room placed lice car and it the call. That was der who had made Ruffin, and, given Mi- initially like the call was also who had made Alexander subsequently warnings. Dunaway randa Brown, Lieu- said that confirmed who pictures that and drew made statements him had told where tenant Alexander 203, 99 him. Id. at incriminated legal pick Dyson’s conclusion up Ruffin. case, As in this prosecution’s rath- (given response in to the “accompa- Dunaway that there contended did he do so leading question er voluntarily therefore police and —“And nied the ” sir”) enti- is therefore voluntarily?” “Yes, 6,n. 99 S.Ct. ‘seized.’ Id. at 207 — was not weight all. tled to no at rejected Supreme The Court at 2253 n. 6. based, the trial claim, part, in on this testimony was intro- Precious little other seizure was that the court’s determination Offi- duced on the issue of voluntariness. does not case voluntary since “this not had “asked cer testified that she Williams the defendant where involve a situation go us be- if he down with would [Ruffin] at his own voluntarily appeared accord] him down at they [of cause wanted to talk to

713 response privacy by in to a re- afforded the Fourth police headquarters citizen’s 205, at 99 at quest police.” guarantees of the Id. S.Ct. com- Amendment’s cannot be (Monroe People Dunaway (quoting v. 2252 promised in this fashion. ... [Detention 116, N.Y., 11, 1977), Ct., App. County Mar. interrogation regardless for custodial — upon relied 117). Supreme The Court also severely inter- so on its label—intrudes PRE-ARRaignment protected Amendment ests the Fourth Ali’s Model Code of 2.01(3) commentary, p. 91 PROCEDURE § trigger necessarily the traditional as 1, 1966), (Tent. No. which states that Draft against illegal safeguards arrest. person request faced a a reasonable Id. at 2257, 99 S.Ct. at police come to head- police officers to compelled feel to do so un- quarters may differentiating only The factor this case clearly be request “is stated to less parties Dunaway from is that there the Quoted voluntary.” Dunaway, supra, in attempted to stipulated Dunaway that had 6, 207 n. 99 S.Ct. at 2253 n. 6. 442 U.S. at he police custody have been leave would police Dunaway not tell that The Here, police them, restrained. testified that just accompany free was not attempted if Ruffin had to leave would they in this case to so inform Ruffin. failed is Supreme free do so. This a distinc The Court concluded have been difference, it is not the tion without impor- petitioner detention of subjective police intent that deter indistinguishable respects tant place, mines when a seizure has taken but was not traditional arrest. Petitioner subjective intent the extent to which questioned briefly where he was found. Instead, neighbor’s suspect. he was taken from a has been communicated car, en transported subjective home to intention of the [law “[T]he station, placed interroga- agent this case detain forcement] leave, tion room. He was never informed that respondent, attempted had she go”.... he was “free to except may have irrelevant insofar as that respondent.” conveyed to the been United 212, The at 99 S.Ct. at 2256. Court Id. Mendenhall, 544, 554 446 U.S. n. States continued: 6, 1870, 6, 497 100 1877 n. 64 L.Ed.2d application Amend- Fourth J.); (Stewart, J., joined by Rehnquist, probable requirement ment’s cause 1, 100 at 560 n. S.Ct. at 1880 n. see also id. depend not does on whether an intrusion C.J., (Powell, J., joined by Burger, 1 magnitude an “arrest” termed Blackmun, J., concurring); at & nn. id. under state law. mere facts that 12, (White, 13, 12, 1888 nn. 100 S.Ct. at petitioner was not told he was under Marshall, Brennan, J., Ste joined by arrest, “booked”, not and would vens, JJ., dissenting); New York v. if have had an arrest record the interro- 6, 649, Quarles, n. 104 S.Ct. obviously gation proved fruitless ... (1984) (cit petitioner’s n. L.Ed.2d 550 not make seizure even do analogous Mendenhall, supra roughly narrowly de- ing States v. United Terry fined involved in intrusions n. 100 S.Ct. at 1877 & 446 U.S. at 554 & [v. Ohio, case, 88 S.Ct. 6). Dunaway and this In both n. In- (1968),] progeny. and its L.Ed.2d 889 en law government failed to show deed, “exception” that could cover a way in any commu officials forcement as that in this case as intrusive seizure suspects their were nicated to general threaten to swallow would accompany free refuse to seizures Fourth Amendment rule that Dunaway The result the station-house. proba- based are “reasonable” il governs Ruffin was accordingly here: cause. ble no in and, were legally since there seized 212-13, Finally, could attenu tervening circumstances that 2256-57. Id. seizure, illegal Duna- held ate the taint the Court 218, 99 S.Ct. at way, supra, probable- importance central [t]he and statements “fruits” —two of a its protection requirement to cause claim, clothing sup- constitutional this concession Ruffin’s have been should —should Instead, enough inquiry. to end the pressed. be majority tortuously resolves its initial colleagues unique argu- My make the against doubt Ruffin. Behind the circular testify Ruffin chose to ment that because (on-again, off-again, twenty-page burden- hearing, suppression and the trial at the shifting) engaged in analysis by majori- testimony find court did not Ruffin’s singular ty by is the conclusion that choos- credible, hearing to the trial court’s be ing testify suppression at the hearing lack-of-credibility finding relieved the Ruffin took his chance that if he had the its normal burden to demon- government of by misfortune to be disbelieved the trial of Fourth Amendment strate waiver thereby govern- court would relieve the opinion, at 690- rights. Majority ante heavy ment of its burden to demonstrate a logical there is no connection 698. Since See, right. e.g., waiver of constitutional credibility Ruffin’s and the between majority opinion, ante at 694 & n. 690- government’s heavy initial burden to show 697.7 questionable Given the logic of waiver, merely or to state this ar- consent analysis, of solemnity this the level with gument is to refute it. The fact that the which it is trotted out would be humorous testimony trial court found Ruffin's incred- if its results were not so unfortunate.8 way could in no diminish the burden ible upon government to a waiver of show Mendenhall, majority’s The reliance on rights. The or Fourth Amendment truth supra, falsity of the statements which the trial There, misplaced. the issue was whether court found not credible—that Ruffin was upon heroin seized the search of the de- he had intimidat- handcuffed and that been airport admissible into fendant at an by police ed unidentified officers—is nei- stopped by evidence. defendant was The ther determinative nor even relevant. drug agents asked to ac- enforcement company yards few them to an office a begins majority The with the observation away. holding the search that un- In by that “one is struck ... how elusive” is lawful, covered the heroin was the Su- question to the answer whether preme stated: Court go voluntarily police did or especially significant the re- Majority station. it opinion, ante at 690. spondent expressly told that every Given the fact that doubt must be was twice consent to the protecting resolved in she was free to decline to favor proposition, accompanied be- for to the station authorities cited this States, Hawthorne v. United 476 A.2d 168 n. warrant had cause he believed that a bench (D.C.1984), States, Franey v. United be issued for his ar- been or would otherwise (D.C.1978), point. A.2d 1019 Franey, are not on this that he received informa- rest. He stated prosecuted bur- the defendant was for sister, spoken who had to some- tion from his glary, prosecution had no direct evi- No rebuttal was ever one at the station. present dence that he was at the scene of the police had that the offered to Ruffin’s crime, only alley in an near- that he was found major- reference to a bench warrant. made case, part As of his fruits of crime. testifying ity handcuffed, that Ruffin was not states that been at the defendant admitted that he had picked him officers who the two good scene but stated that he had a reason up Williams—allow this court —Brown that, being assessing there. We held lying about hand- “[Ruffin’s] find voluntariness: sufficiency of convic- the evidence sustain the very premise of his on the cuffs cast doubt tion, the defendant’s admission could be taken testimony: heard from that he had coercion into account. held the same. The Hawthorne through sister about an arrest war- settings totally are unrelated to these cases un- opinion, at 690. But Majority ante rant.” not, present one. Even if were those Franey, too the since there der Hawthorne and provided defendants guilt, affirmative evidence of government, proof lies on the burden of provided whereas Ruffin no affirmative testimony is in- a defendant whose means that evidence of voluntariness. The relevance though the convicted even credible could be Franey case is therefore Hawthorne and to this evidence that he barren of sufficient record is difficult to discern. a crime! she has committed operating 8. Even within the framework created by majority, did not meet its burden to show consent. Ruffin testified that search, explicitly con- 6. Sex thereafter knowledge was M

sented to it.... [S]uch highly relevant to determination 7. Home Address And, perhaps been consent. there had [omitted] purposes, our important for more 8. Home Phone in- themselves the officers fact [omitted] free respondent that she was formed the Taken Statement 9. Location substantially her consent to withhold Homicide Office con- probability that their lessened Taking Statement 10. Name of Officer reasonably appeared to have duct could (if signa- 16 include other than block her to be coercive. ture) 558-59, 100 at 1879. Id. at L. Muse CLarence in Men- upon the Court factors relied 11. Started Date/Time explicit to the de- statement denhall —the 2/3/80 she was free refuse consent fendant that Rights 12. and Statement Waiver explicit there- her consent coupled with ADR initials] [handwritten very that are absent factors after —are Not Dunaway. absent in this case and were ask Before we under arrest. You are majority’s preoccupation with Menden- you you any questions understand must distinguish Duna- and its failure hall rights your You have the are. what inexplicable. way are are not right You to remain silent. of Ruf- summary, I think the reversal any say anything required to us at conviction, on both Fifth and Fourth fin’s Any- any questions. time or to answer re- grounds, constitutionally Amendment against you thing you say used can be a quired. Ruffin is entitled to Antone in court. this time fair—trial. new—and lawyer right to talk a You have the respectfully I dissent. question you and for advice before we during you question-

to have him ing. APPENDIX A lawyer want you If cannot afford INADMISSIBLE, INVOLUNTARY, THE you. one, provided lawyer will be WRITTEN STATEMENT questions you now to answer If want involuntary statement This written lawyer present you will still without

which, concedes, majority con- as the any answering right stop have stitutionally inadmissible: right stop also have You time. you answering until talk to Attach PD HERE time lawyer. P.D. 118 Rev. 7/74 rights? yes. you these understand

Do any questions? you wish to answer Do yes. METROPOLITAN DEPART- POLICE questions willing you to answer Are WASHINGTON, MENT DEFEND- D.C. attorney present? having an without STATEMENT ANT/SUSPECT yes. Complaint No. injured Q: the man who youDo know Investigation 2. Nature of hallway of omitted] inside [address Injured Hospital Person to the morning? File No. 3. Unit A: Yes sir. Middle) (Last, First, of: Statement Ruffin, you Antone Dewitt Q: me the circumstances Relate to them, injuries re- led which know 5. DOB man? by the ceived 03-13-58 Q: you part Do know what of the anato- my the kicks landed? morning A: This about 0830 I on the way my Player to take Bass home at 17th believe, forehead, A: I around the mouth N.W., I & Corcoran St. when decided to nose, and I’mbut not sure. apartment my drive mother’s which is at Q: How much blood was around when got there, my When we omitted]. [address you last saw Cliff? my sitting mother and sister were her A: A whole lot it.of getting ready car to drive off. I asked Q: long you How have known Cliff? they them going they where were said going up my were other sis- Long A: as I can remember. ter[’s; name house because Cliff omitted] Q: Is he a yours? friend of rape had tried to her. I told them that I Nope, A: frankly get we don’t along. As up got would them follow there. When we just as I am concerned he is another far apartment, to her she said that Cliff had one “herb-smoking them Nig- Street of ” rape tried to her. I her asked where he gers. left, was and just she said that he had so I Q: drugs? Does he use up steps ran around the corner and going up see if I saw him and there he was using drugs, A: I don’t know about but I steps. top steps He was at the of the Angel know that he smokes dust and and saw that he couldn’t out run me so he Herbs. stopped and turned around and tried to Q: you your Did have blood on shoes? push steps. me down the I went backw rds Yes, A: sir. couple steps grabbed [sic] up. hand rail and went back He tried to through Page as on [blocks swing I punch. blocked the He fell 3; Page end 2] grab my push and tried to feet and me steps. keep back down the So to him from [Page 3] pushing steps me down the I started kick- ing. [heading, 1 through 12, blocks Page as on Q: punishment How much you in- 1] Q: flict Cliff? happened What your blood on shoes? A: I hit him left-right with a combination down, to both sides face and he went A: I washed it off. wiped I first it off get up

he tried to but he couldn’t so upstairs in my apartment, sisters but it stairs, tried to kick me I down the so used didn’t come off good, too so I went down my feet. stairs to the basement and washed it off. Q: How and you where did kick him? Q: Why you didn’t stay on the scene and talk to the there? IA: kick him with a full house once [sic] straight stomps. and to down [sic] stayed A: I long there for a time until the police told me to They leave. told me to get out through Page just as on hall so I left. [blocks 3; Page end 1] Q: long How you have known Officer

[Page SHAW? 2] A: years, 8-10 persume I Anyway [sic]. [heading, blocks 1 through it’s been a pretty good time. as on Page 1] Q: happened What your Player Bass Q: you When last saw Cliff was he uncon- while this was happening? scious or was he alert? A: up He came steps behind me and A: He was unconscioys [sic]. he must have something said like “It not Q: What was his condition? worth it” stopped because I when I heard A: job I did a on him. this and we went back down stairs. holds initially It the harmless error applicable doctrine is to the introduction of Did hit Cliff? Q: SHAW Officer confessions, involuntary I a notion totally I I see him hit him because A: didn’t reject. Turning case, facts of this I him. what condition he know wasn’t majority goes toon find no reasonable good. I left it wasn’t when possibility erroneous admission of Q: trying you to kill Were Cliff? “exculpatory” written statement into No, sir, defending myself I was A: evidence the jury’s rejection influenced of lesson, keep you a teaching and him can’t Ruffin’s theories of self-defense or ade- people mistreating and ex- going round provocation quate and guilty its verdict of pecting nothing happen. second-degree murder. What follows is summary central role written Q: taken Karate? you Have ever Boxed or played statement in Ruffin’s trial. Yes, A: of them. both I Read 13. Have this Statement Given I me Have Had it Read to me. or THE OPENING PROSECUTOR’S Fully Certify it and Understand TO THE JURY ARGUMENT it is True and Correct to the Best argument, prosecutor opening In his my Knowledge and Recollection. upon times the written state- relied several D. Antone Ruffin [handwritten] jury He that “Antone ment. told Ruf- Signature Giving of Person State- hear, animosity had to- you’ll some fin, ment Wilson, in anyway runs off ward Clifford 14. Ended Date/Time Wilson, and bass pursuit Clifford [the 2/3/80 friend, (Emphasis his follows.” player], Page Pages. 3 of reciting added.) facts and prosecutor, Signature in Obtaining Officer directly from written language drawn Block 13: statement, continued: Muse Clarence [handwritten] stairs, charged up those Antone Ruffin Clarence L. Muse statement, according own and ... to his (Name Signature) and back, push tried to him Wilson Clifford Signature Witnessing

17. Person charged Antone Ruf- up the stairs. he Block 13: karate, has fin, highly trained who is (Name Signature) and the floor with him down on put boxed ... combination, kicks, put him left-right two (italics Government Exhibit 27 added for back, proceeded to on and then down his emphasis; indicates bold face standard head, face, his and his stomp his 118) printed language original Form P.D. finally kept doing it until he body. And (this is involuntary written statement going heard what player] bass [the majority “exculpato- that the as describes pulled him up the stairs on and came ry,” 704-705). see ante [Emphasis off. added.] B APPENDIX prose- argument, opening in his Later THE INVOL- CENTRAL ROLE OF the homi- jury THE reminded cutor UNTARY, INADMISSIBLE, cide office STATEMENT WRITTEN police, made a [in] statement happened. had he what to sec- which described returning guilty its verdict of In po- says he he told the murder, which reject And ond-degree jury had to [in] just told basically I have (which, if what lice Ruffin’s defenses self-defense didn’t that he had—he He said you. required acquittal) have accepted, would Wilson Wilson. like adequate provocation caused alternatively Clifford Clifford his family dealings had some rape (which, his by the sister’s news him. like and he didn’t convic- reduced the accepted, have would Clifford before him and coming to it murder to volun- Wilson second-degree from tion good Wilson And he said sorry. wasn’t affirms. manslaughter). majority tary you asked “Do know whether or not Mr. gave a written statement?” Detec- stomped you’ll him. And hear Dyson responded gave tive that Ruffin descriptions that he testimony about the written statement to Detective Muse. stomping Wilson gave Clifford about doing job into unconsciousness Wilson, the man barefoot who Clifford THE DIRECT AND running up away the stairs CROSS-EXAMINATION [Emphasis him. added.] OF RUFFIN After the had introduced the THE PROSECUTOR’S EXAMINATION inadmissible, involuntary, written state- DETECTIVE MUSE OF ment evidence testimony into and into taking up pages ten case-in-chief, part of its Ruffin chose to transcript, prosecutor asked Detective behalf, testify waiving on his own thus actually you Clarence Muse “did take counsel, privilege. Fifth Amendment His statement from Mr. Ruffin?” Af- written damage to an effort undo the caused [in “Yes, did,” answering I ter Detective Muse statement, the introduction of the written handed Government Exhibit 27 and appear involuntary and to it or make either copy it as a of the statement that described “exculpatory,”] requested Ruffin to de- he took from Ruffin. Detective Muse testi- the circumstances under which it scribe rights fied that he advised Ruffin of his it set forth. Ruf- was taken and the facts (without alerting jury his and to failure statement, give fin admitted that he did legal interrogation, to cease and his advice given although he claimed he had it to lawyer, that Ruffin did not need a ensured Dyson and not Detective Muse. Detective willing to make the that Ruffin was state- acknowledged the officer who He also that said, well, any- ment. “He he didn’t have couple things pertain- recorded it “said a thing to hide.” ing [my rights] exactly my but prosecutor’s request, At the Detective copy rights.” When handed a of Govern-

Muse then read the statement out to full conceded that “It ment Exhibit Ruffin jury. I supposed to be the statement that so, signature Having gave” verified his at the done Detective Muse de- and opportunity scribed how Ruffin took the bottom statement. “to read the statement over to see it was requested read then out Ruffin was accurate.” Muse testified that Detective jury. statement his entire written signed page Ruffin the statement on each so, regularly Ruffin did his counsel While signed and also it end with him the state- intervened to ask whether given by “I words: read this statement me portrayal of each successive event ment’s fully I or have had it read to me. under- or false. was true certify stand it. I that it is true to the best disputed the time “0830” and said Ruffin my knowledge [This, and recollection.” “eight thirty.” He it as he had stated exchanges points and similar at other dur- say- incorrect the statement was claimed ing trial, lent an air of undeserved sitting in “her” car ing that his mother was propriety veracity involuntary, and a car or a driver’s she did not have because inadmissible, written Accord- statement.] the correct ver- said that license. Ruffin Muse, ing to Detective Ruffin’s demeanor blocking Wilson’s Clifford sion about during giving of the statement was “they hit me.” Ruffin punch unemotional, stark “Calm and even fell, grab his tried to Wilson denied that

times.” steps; he said feet, push him down THE PROSECUTOR’S EXAMINATION kick- that “he was version was the correct OF DETECTIVE DYSON kicking him Ruf- ing I back.” me and was kicking keep agreed that he started prosecutor returned to the inadmissi- fin steps. pushing him down during his examina- written statement Wilson ble account Dyson. the written statement’s Hosea E. He He denied tion of Detective question as to whether Officer Shaw hit wrongly The statement Wilson. recorded on both face hit Wilson sides of the answer when Detective Muse combination; left-right with a should it trying whether asked him he was to kill just that “in the have been he hit Wilson trying “I stated I was Wilson: face.” In reference to the statement that myself”; defend he never said add- up, get Wilson fell down and tried to back Ruffin lesson, part about “teaching ed the him a phrase Ruffin said “that is not the that I keep you going mistreating can’t round used”; proffered he men- instead that people expecting happen.” nothing having tioned Wilson as wall.” “hit the Finally, said having Ruffin denied he had kicking Ruffin denied he admitted Wilson or taken “watched karate.” straight full house two down stomps, and denied also he was a Ruffin had read the written state- After expert karate had ever karate. studied jury-interspersed ment to the with his testi- having He claimed said he left “con- Wilson mony portions true as which were scious,” response not unconscious. false—he was whether which were asked question Detective Muse’s as to Wilson’s giving he had harassed before been condition, him; doing job Ruffin denied police. written statement Ruffin said he referred to condi- Wilson’s he had. Ruffin that he “good.” said that admitted tion as When asked where landed, having kicks the statement. He did not disputed initialed forehead, nose, having rights. said around the been read his Accord- mouth and recall Ruffin, ing claimed he had named the “fore- told him to Detective Muse blood, head.” Rather than a whole lot of the would the time that written statement Ruffin just said he calculated little.” then, “a against By not be used him. his say Ruffin did not he had Wil- known concerning examination the inad- counsel’s said, long remember, son as he could as he statement, originally intro- missible written but instead years “about fourteen part government’s of the case-in- duced as more.” chief, up pages of had taken fourteen the transcript. statement, Contradicting the written saying get along denied he didn’t Ruffin by Ruffin also was cross-examined coun- (described with Wilson in the statement codefendant, Shaw, sel for his Officer who “just another ‘herb-smoking one them was in an adversarial role due to Ruffin’s ”) Niggers’ Street and insisted he had ac- testimony that victim Shaw beat the with a tually described Wilson as “a friend of gun fight Ruffin’s Wilson after with had the family mines.” friend of Again, ended. the written statement was acknowledged Ruffin his description frequently brought to the of the attention angel Wilson as an dust user. The state- jury. concerning testimony the correctly ment also recorded that he against death of Wilson was measured his

‘blood on his shoes. Ruffin contradicted written statement. He was asked several the attempt account of his the wipe to questions him to required further which blood off in apartment his sister’s before directly to refer the statement. This ex- doing so in wiped the “I basement: stated I change occupied pages of the four tran- basement, it off in the upstairs.” script. court then because The recessed it Rather than he saying Officer known day. late in the was eight Shaw for ten years, to Ruffin testi- following day, The Ruffin was cross-ex- fied, “I guess eight told them about—I prosecutor. by amined the He recounted years Ruffin, According or more.” Wilson in once more effort to locate falsely suggested statement that the word leaving apart- “presume” building after his sister’s in his vocabulary. described their rejected the ment and confrontation statement’s assertion that the player struggle top prosecutor, the stairs. The bass had intervened in his attempt up suggestive prove with Wilson: “I that Ruffin stated that he came steps, my required to con- called name. That was all.” had acted the malice murder, jury second-degree Ruffin told the and not in never vict of answered stand, Before Ruffin left the witness prosecutor quizzed eight him for a further adequate upon provocation, self-defense or pages concerning the written statement. day’s testimony, in previous drew prosecutor Ruffin’s credibility attacked had contradicted a critical which Ruffin inadmissible, by focusing involuntary, on the conflict in the admission as to subject whether Ruffin had been written statement: giving harassment before this, Now accord- THE PROSECUTOR: prosecutor statement. The then used ing family an old you, friend. again impeach written statement Ruf- animosity Is had no whatever. You testimony, previous day, fin’s from the right? responses falsely had been recorded Yes, RUFFIN: sir. police: “According you, Detective Q. talk to you And all wanted do was Dyson typed Muse up and Detective him? wrong wrong names and the times and Yes, A. sir. everything wrong with else the state- Q. stop steps didn’t three or four You ment?” responded, “I believe some “Clifford, come say on down!”? away to things wrong, yes, were sir.” The No, time run- A. sir. At the he was prosecutor proceeded establish that De- ning. Dyson tectives prior Muse and had had no Q. stopped around. He He turned contact with Ruffin and no motive to lie. turned around? exchange continued: Yes, A. sir. Q. stop away fewa feet You didn’t yet your And it is THE PROSECUTOR: “Clifford, say from him and come Dyson and De- Detective testimony that downstairs!”? making up? this all Is tective Muse are A. I started make a At the time right? I could make

statement before my thing say I can Only RUFFIN: me. statement that’s when kicked is not correct. statement Q. the statement before you read Did Q. intending fight weren’t You signed you it? all? No, A. sir. Yes, A. sir. Ruffin the prosecutor handed written Cliff, Q. “Hey, saying, come You were statement, Exhibit Government talk this!” downstairs and let’s about continued: you say? started to That’s what Q. you your is statement that That exactly A. that. Not gave, isn’t it? Q. you starting to exactly were What guess I I see say? A. so. didn’t the state- ment. gonna A. him I was ask to come back my me to Well,

down to talk with sister and Q. point me down the bot- let happened. see what of first page tom of bottom the the —the signature your down Q. page. That is you? mad at him You weren’t were there, it? isn’t upset. say A. I I I was wouldn’t exactly Yes, mad at him. A. sir. Q. thought that You this man top page Q. Up where at the

raped your sister. says you that you it have been —where time, you yes, your rights, A. sir. that are not At this advised of arrest, you are under advised Q. you But were mad? you ini- rights, didn’t several other response.] —the RUFFIN: [No tials are on there? I THE PROSECUTOR: didn’t hear that, no, sir. pertaining A. Not answer. right there next to Q. initials are Your THE He hasn’t answered. COURT: rights advising section? that? The [Emphasis added.] the written effectively statement discred- ited Ruffin’s alternative defenses self- it is But it don’t mean It next it. A. adequate provocation, defense both of to that. pertaining which had the burden Q. your initials there? put You disprove beyond a reasonable doubt. Yes, sir. A. redirect, On order rehabilitate Ruf- signed Q. you your And name on the fin’s testimony, earlier his defense counsel bottom? obliged to continue the focus on the Yes, sir. A. written statement and the circumstances under which it was taken. That effort sign page, Q. You the third didn’t evidently failed convince rehabilitation] you? the jury. Yes, sir. A. Q. says And statement that it was your thirty-nine in the after- two

started at THE PROSECUTOR’S CLOSING noon, it? doesn’t THE ARGUMENT TO JURY That’s what it stated. A. throughout his strategy Consistent with Q. 1439 it ended at three hours and trial, prosecutor relied heavi- the entire forty-eight? statement ly on the inadmissible written Yes, A. sir. He closing argument. reminded verdict of up jury that too? in order to return a Q. And made murder, second-degree opposed guilty to guess I so. A. would voluntary manslaughter, it must find Q. the stuff in here is accu- None of Malice, that Ruffin had acted with malice. rate? observed, necessarily mean “doesn’t he say A. I would ... he into the that Antone Ruffin when went objection Counsel’s sustained.] [Defense building the intent to kill apartment your Detec- Q. So it It mean that Clifford Wilson. doesn’t Dyson masquerading as tive Clarence or that he hos- hated Wilson felt Clifford parts in wrote down the there Muse It doesn’t tility Wilson. toward Clifford changed to write down and he wanted things. But those necessarily mean those your words whenever wanted? (Emphasis play.” things into can come seeing I Muse A. don’t recall Detective immediately added.) The there- prosecutor I know. so don’t government’s burden after discussed Q. like say you You didn’t didn’t acting prove in the that Ruffin “was Wilson? provo- by adequate passion heat caused Clifford No, A. sir. cation or excuse.” Q. making are that just So all own Antone know “[W]e Ruffin’s ” up? statement, argued, what prosecutor the response.] RUFFIN: top [No the stairs. “We happened at the of Clifford objection Ruffin knocked Counsel’s know that Antone sustained.] [Defense what was his and we know [Emphasis Wilson on back added.] statement, with a in his own described later, prosecutor questions few the a Just him combination, kicked that he left-right ex- his cross-examination. rested [He straight down kick and a roundhouse with credibility tensively impeached Ruffin’s added.) (Emphasis head.” stomps to the state- through inadmissible written the devastating, prosecu- the Perhaps argument, more the Summing up even ment. testimony and a verdict jury Ruffin’s to return urged conflict between tor the than second-degree under- murder rather volun- written statement the inadmissible I manslaughter: “The reason that tary his insistence that Wilson was mined second-degree prosecutor you contrary, the to return To the would ask friend. is that manslaughter than statement murder rather skillfully the written used police in his the required in- has told Antone prove the malice which was Ruffin not like second-degree he did murder statement gredient of Ruffin’s Clifford him....” Wilson, like that he didn’t prosecutor, the In hands conviction. weapon a lethal in the hands of the skilled who prosecutor tried this case. It was also added.) time, the (Emphasis Ruffin illegal forged expense at the an down, out, pointed to cool be- prosecutor one— guar- procedural safeguards fundamental time over to his he had to drive cause everyone by to Ruffin else hearing anteed and to apartment about the after sister’s prosecutor what Fifth The incident and to ask her had the Amendment. rape (1) illegal weapon: “Yet didn’t happened. deftly Antone used de- thought that Maybe (2) prove like Wilson. stroy credibility; Ruffin’s Cliff good whatever_ get back at was a excuse malice, this jury that he with re- the acted Cliff why That Wilson second-degree ingredient mur- quired murder, gen- ladies and second-degree conviction; der to undercut Ruffin’s (Em- tlemen, manslaughter.” not had acted self-defense defenses added.) phasis or, alternatively, passion in the heat of closing adequate provocation by response prosecutor’s upon caused the the upon entirely the argument, relied rape. which of his sister’s news supply written statement inadmissible Arguably, might never have tak- malice, Ruffin’s the essential element it not for en witness stand were com- he was counsel discussed defense [as damage perceived need undo the done to in his clos- pelled the written statement to] his defenses of the in- the introduction He Ruffin’s ing argument. emphasized part of admissible written statement as claim he acted in claim that self-defense—a government’s case-in-chief. state- immediately in the written followed lesson, “teaching him a utterly reject the words I ment the notion harmless mistreating keep going you can’t round may doctrine used to measure the error be nothing happen.” expecting people and upon impact a trial of the introduction of However, involuntary statement. even THE JURY’S DELIBERATIONS on speculation permitted, such were day, receiving its in- following after just I have the error record described court, jury from the retired structions conclude, cannot not harmless. This court upon It withdrew to deliberate its verdict. doubt, that the erro- beyond a reasonable on March from the courtroom at 11:28a.m. involuntary neous introduction of Ruffin’s 22, 1983. contribute to written statement did not trial, verdict. Along their recollections involuntary, brought jurors statement,

inadmissible, Govern- written jury room with

ment Exhibit into

them. having p.m. jury, arrived

At 5:12 verdict, that it was informed the court

at a evening. It retire for ready to (No. 86-724), WOODRUFF, Marguerite jury jury returned to excused. (No. Robinson, L. William morning. a.m. next At at 9:50 room 86-725), Appellants, jury 11:16 a.m. March with its verdict. returned to courtroom guilty of the jury found Antone Ruffin McCONKEY, Appellee. C.K. Wilson. second-degree murder of Clifford 86-724, 86-725. Nos. place took nothing know of what [We Appeals. Court of Columbia District and ten minutes during the seven hours 7, 1987. Argued Jan. jurors spent alone the twelve jury in the each other April Decided room.]

CONCLUSION inadmissible, writ- involuntary, statement, Exhibit was Government

ten

Case Details

Case Name: Ruffin v. United States

Court Name: District of Columbia Court of Appeals

Date Published: Apr 16, 1987

Citation: 524 A.2d 685

Docket Number: 83-640, 83-733

Court Abbreviation: D.C.