*1 granted.22 motion be We reverse so that
appellant put can opportunity have the jury.
his аsserted coercion defense before Reversed and remanded for farther
proceedings in opin- accordance with this
ion.
FERREN, Judge, dissenting: Associate
I respectfully incorporate dissent. expressed
views originally when this case division, Gooding v. United before
States, 1320, 1335 (D.C.1986) (Fer- 513 A.2d
ren, J., dissenting). Particularly respon
sive to the majority rehearing division
are Parts III. and IV. the dissent. SMITH, Jr., Appellant,
Dennis G. STATES, Appellee.
UNITED
No. 85-729.
District Court of Appeals. Columbia
Argued 1987. June Aug.
Decided 1987. issue, Significantly, dissenting colleague legal our con- claimed On this the dis- innocence. curs our inquiry evaluation all but one of the appellant’s sent's into merits of as- "seriously factors relevant to the conclusion that with- serted coercion defense misconcеives guilty just. plea drawal of would be fair and the ... court’s in these mo- role" withdrawal Specifically, appear they Morgan, supra, U.S.App.D.C. the order which tions. at Gearhart, opinion, (citing Part III our dissent acknowl- 567 F.2d at (1) edges government’s proffer 502). U.S.App.D.C. that: at F.2d Even if it defense," forbidden, analysis “not inconsistent with a coercion of the were dissent’s 16; (2) provides A.2d at 1342-43 n. the record wrongly coercion focuses on defense asserted support apрellant’s explanation made, as- for not ignoring when the threats the real were serting origi- coercion defense the time of appellant question for the factfinder —whether (“The pleading accept nal trial court did well-grounded apprehension "a of immedi- 1339; Bass”), (3) appellant had feared see id. at bodily injury.” death or serious Stewart v. ate "appellant steps took States, immediate withdraw (D.C.1977). United 370 A.2d 16; plea," id. n. "the at 1342-43 unsupported position the dissent’s Also specifically has not shown how it the absence of a claim of innocence—a claim prejudiced appel- would be from withdrawal of repeatedly appears record guilty plea," dispute lant’s see id. There is no event automati- case—would somehow factor, competent assist- between us one By cally override all the other relevant factors. counsel, ruling. supports ance of the trial court’s requiring court of the accused convince the unstated, getting jury, her before necessary, his or innocence The dissent’s conclu- presen- replace plea would the time-honored sion be dissent that withdrawal of the would not just just analysis fair strictest of solely fair and rests on its tence standard with the i.e., factor, remaining injustice appellant postsentence one whether manifest standards. *2 statements, that the
trial. Smith contends police in having obtained viоla- been under Miranda v. Arizo- rights his tion of na, 16 L.Ed.2d suppressed. should have been agree and reverse.1 We hearing, pre-trial suppression At the Officer government’s primary witness was Po- Corboy Metropolitan E. William that he Department. Corboy lice investigating placed charge was 28,1984, Elijah May death of Gerald on and on the basis of information obtained brother, from the decedent’s Robert Ger- ald, ap- an arrest for obtained warrant pellant Dennis Smith and a search warrant Wash- for Smith’s residence Southeast ington, Corboy arrived at the resi- D.C. placed other officers and dence with two under arrest. Smith volunteered to Smith come at him Corboy that the decedent had knife, he had been with a hawk-billed afraid, the knife and that he had retrieved put it a drawer. that he had a Corboy then advised Smith Gardner, Jamie S. Public Defender Ser- for to search the home a baseball warrant vice, Klein, with whom James Public De- bat, allеged weapon, and asked murder Service, brief, appel- fender on the for After Smith directed him where it was. lant. closet, offi- Corboy to his bedroom another Simon, Ann Atty., K.H. Asst. U.S. Corboy then deliv- cer recovered bat. diGenova, Joseph Atty., whom E. custody into the two ered Smith Bredhoff, Michael W. Farrell and Robert L. officers, instructing them accompanying brief, Attys., Asst. U.S. were on the with Smith not to have conversation appellee. headquarters. Smith way police their to the homicide office transported NEWMAN, BELSON, and Before headquarters. police TERRY, Judges. Associate police headquarters returned NEWMAN, Judge: Associate joined Smith an hour later and about to listen He asked Smith jury after a interview room. Dennis Smith was convicted speaking, say he had to without degree armed. to what trial of second murder while briefly the circum- trial, proceeded to recite suppress moved to Before Dur- following leading up to Smith’s arrest. police stances statements he made to the Corboy’s denied; despite ing explanation, his The motion arrest. silent, inter- to remain admonition statements were admitted evidence credibility jury of witness- menting urges upon to the two other 1. Smith also reversal maintaining judge, misstating we grounds, the trial Because first that the evidence. es and by conducting witnesses his own examination of of Mi- on the basis Smith's conviction reverse occasions, improperly plaсed violations, himself on several other reach these we do not randa prosecution, second that on the side of the claims. prosecutor misconduct corn- committed rupted to leading tell that he should up talk the death of Gerald. wife, consent, his Edna and his mother-in- With re- statement was law, Inez After reiterating videotape. Williams. corded on speak Smith should not until he fin- Following evidentiary hearing, ished, Corboy completed explanation. triаl court denied sup- Smith’s motion to produced press statement,3 police simply standard de- partment stating finding form PD its there was the “advice and no viola- *3 Miranda, rights tion of of and that the waiver card.” He asked if statement Smith read; voluntarily was replied he could made. Smith that he read very Corboy placed rights little. the card trial, government At attempted the to between them and read the Miranda warn- following disagreement show that a be- ings over, Then aloud. he turned the card Gerald, Elijah tween Smith and who lived questions showed Smith the on the written address, the same Smith hit on Gerald back, and read each themof aloud.2 Smith bat, the side of the with head a baseball “Yes” the ques- answered to three first inflicting government’s injury. a fatal The tions, fourth, you but when the asked “Are primary Gerald, witness the was Robert willing questions to having answer without brother, decedent’s who also lived at that present?”, attorney replied, an Smith “No.” sitting address. Gerald relatеd that he was at the kitchen drinking table vodka when Corboy surprised he by that was coming he heard men two down the stairs this answer because Smith had indicated in arguing, something and then heard fall. response question to number three he room, living When he went into the sawhe Adding impression wished to talk. to this Elijah lying his brother on a the floor with the nodding was fact that Smith had been eye, cut over his and Dennis Smith stand- being rights, his head while read his and ing holding bat, nearby saying, a baseball before, Corboy explаining when on, too, you “Come if want some of it.” arrest, leading up the circumstances to his helped feet, After to Elijah Robert his Smith had interrupted despite being told Elijah upstairs. back went Robert did not Therefore, to speak. “to make we sure a see knife his brother’s hand when he was,” both understood what his answer helped up, him nor he one did on Corboy again, you “asked him saying, are later, floor afterward. About a half hour you willing any questions are to answer Williams, a of Elijah Inez friend who also having lawyer without present; a are and address, upstairs, lived at that went you saying you any don’t want to answer upstairs called to Robert. Robert went questions?” responded, “[y]es, Smith his found brother on floor unconscious. want to questions.” answer Corboy then Elijah An ambulance was called and area, up “cleared him asked an addi- hospital, taken to the he two where died question tional Corboy or two....” When days later. “no”, why asked Smith he had аnswered explained Smith had been confused. The also called as a witness Corboy examiner, ques- asked the third and fourth the medical testified that who again, replied tions affirmatively injury and Smith the cause of death an Corboy gave to each. by the card to one blow a in- head caused with blunt “yes” question testified, who wrote next to each strument. Detective signed sup- gave testimony the card. Smith then similar to at the state- fashion his containing ment pression hearing, his version events as the circumstances questions request suppression 2.The on the back of the PD 47 form 3.Smith’s motion did not as are follows: any the statements made to you you immediately 1. Have read or had after his read residence arrest. Nor warning rights? your toas object Smith the admission of of these you rights? 2. Do understand these statements at trial. you any questions? 3. Do wish to answer you willing questions Are to answer with- having attorney present? out an surrounding because he was “scared nervous Smith’s arrest Later, videotape played cigarette.” put The statement. ... wanted a jury. Finally, Crime Scene Search Offi- garment bag in the bat under baseball to his Cooper Louis testified as recov- cer in the the clothes closet barricaded found in ery of the baseball bat. It was beds, chil- bunk because he didn’t want the closet Smith. the bedroom indicated permission. it play dren to with without by large The door to the closet was blocked admitted on direct examination beds had to be moved order bunk which police, to the recorded his statement open pile it. Inside closet was videotape played which had been reaching ceiling. way half to the clothes respects; jury, had been false several clothes Removal closed revealed notably, most he had told Officer bag, inside of was found garment that he had hit bat the bat. knee, head.5 stated than the He rather Smith, testifying his own Dеnnis be- *4 he that he had not told the truth because half, claimed self-defense. He related that a going jail had “scared for been ... [of] habitually Elijah unruly Gerald became long although He that he time.” testified drunk, he and that he had often when was hitting in Elijah had lied to about times; Elijah pull a knife such in seen at knee, Elijah the his statement that had fact, Elijah pull he had seen a knife on his coming him knife been at with a was the the preceding Robert the week inci- brother truth. question. dent in Williams, Inez friend of the decedent and 26, 1984, house, May the On the men of Smith, mother-in-law of Dennis testified Gerald, including Smith and had Elijah sitting the kitchen table that she was at drinking day. vodka all At about 6:30 been heard some- with Gerald when she Robert evening, in the Robert and Inez Gerald living into one in room. She went fall the kitchen, were in the and Smith Williams Elijah lying the living room and saw standing living in the room near console, his floor a stereo head bleed- near door, Elijah kitchen when Gerald came fallen ing. She assumed he had down “raising “cussing” down stairs stairs, and hit rolled into the stereo at Elijah voice” Smith. When reached the he up, after helped head. him which She stairs, pulled of the he out his knife bottom She called an upstairs lay down. went and came at Smith. Smith retreated to the on or see a knife ambulance. She not kitchen, grabbed the children’s baseball bat time that at no Elijah. near She testified from freezer beside the near the kitchen or these did she seе pertinent to events door, the living returned to room and hear Smith the area. swung Elijah, hitting bat at him on the grand impeached with her side of the He Williams was head. testified that “[t]hat that she said only way stop jury testimony I could him.” Smith picked Elijah’s knife, up- living up went into the room when she went stairs, floor, and put it in his dresser draw- and Robert Elijah own found Smith room, er.4 Smith had Gerald were Gerald, on, you if want said “[C]ome downstairs, Inez When Smith returned some of it too.” helping up off the Elijah Williams was floor, sitting in аnd Robert Gerald was still II go to the the kitchen. then left to Smith’s videore- persuaded that We are get cigarettes. not offer to store to He did Corboy to Officer corded statement help pick Elijah up off the floor Williams statement, fur- Smith had 5. In the knife was in that draw- 4. No hawk-billed found although Gerald threat- that However, ther stated provided by police. Williams er Inez drunk, never people Smith had when ened other Officer with such knife after Smith's Officer pull had also told а knife. He seen him Corboy room, She it in in another arrest. had found a drawer kitchen, living not he was in the room of the house. began. the incident when Miranda Arizo- 701; however, obtained violation of at Smith’s conviction must na, supra. case, In Supreme applied. be reversed if even it is during held Court custodial interro- The approach adopted in
gation,
if the
accused “indicates
Ruffin
upon
any stage
urged
is
process
manner and at
of the
us in this case
addressed to
equivocations
that he
attorney
ambiguities
wishes
consult with an
or
which either
speaking
question-
(1)
before
there can be no
precede an
purported request
accused’s
444-45,
ing.” 384
at
S.Ct. at 1612.
counsel,
for
part
request
or
are
Arizona,
In Edwards v.
at
itself.
5.Ct.
Court
present
5.Ct. at 493. Neither situation was
accused,
an
“having
elaborated that
ex-
preceding
here. No
events
rendered
pressed
police
his desire to deal
with
ambiguous.
“no”
Smith’s
only through сounsel, is not subject to fur-
presumed
willing
to talk
interrogation by
ther
the authorities until
from statements volunteered
Smith both
him,
counsel has been made
available
police
his home and at the
station before
unless the accused himself initiates further
being
rights. However,
read his
state-
communication, exchanges, or conversa- ments
volunteered
an accused before
Id. police.”
tions
101 S.Ct. being
right
informed of his
can
counsel
Supreme
repeated-
at 1885. The
has
Court
upon
request
be used to cast doubt
ly emphasized that the rule of Edwards being
counsel made
so informed.
after
“bright-line”,
rule,
prophylactic
designed
If the
yet
individual did not
know about
“
prevent
‘badgerpng]'
‘overreaching’
*5
right, how
his
could
conduct indicate an
subtle,
—explicit or
deliberate or uninten-
Likewise,
to
intention waive it?
his
neither
Illinois,
tional — ” Smith v.
91,
469 U.S.
shaking
being
his head while
his
read
98,
490, 494,
105
83
S.Ct.
rights,
response
nor
PD question
his
to
47
Jackson,
(1984);
Michigan v.
625,
475
indicating
three
willingness
number
his
to
1404, 1410,
(1986).
106 S.Ct.
317 537, point, rule ... announced 187, 538 however. 186, 412 N.E.2d “[T]he denied, prophylactic safeguard lawyer”), cert. Edwards ... is a I need a (“Maybe 3009, 1019, application does not turn on whether 69 L.Ed.2d whose S.Ct. 451 U.S. employed.” (1981). Although it is conceivable that coercion in fact was 8, suprа, “no” with 99 n. 105 S.Ct. at might say the word 469 U.S. at an individual communicating above, designed of voice the rule is look or a tone n. 8. As noted confusion, “overreaching”, Corboy's “badgering” tes ambiguity prevent or some 98, Id. to no such circumstances timony referred unintentional. even when merely testified that presents just He here. at 494. This case S.Ct. “surprised” at Smith’s the rule of Mi- aback” and “taken type of situation which in recognized that the pre- have and Edwards designed answer. We randa judg his vestigating officer must exercise vent. determining the accused
ment in
whether
III
Ruffin,
right
to counsel.
has waived
Mi
701;
524 A.2d at
supra
note
police violat
Having found that the
randa,
n.
we must explain assess once tainted peculiar manner in which the consideration, from evidence excluded stored), compelled bat was none him to overwhelming there remains evidence to testify did govern as the statement.10 The Derrington v. ment has the support jury’s verdict. of demonstrating burden States, 1314, United 488 1331 A.2d & n. 25 testify Smith’s decision not emanate (D.C.1985). from receipt in evidence of his illegally Spencer, supra, obtained statement. 57 cases, In some the tainted evidence Cal.Rptr. 170, see gen 722; 424 P.2d may only be excised consist not erally Chapman, supra, 386 24, atU.S. 87 evidence, illegally obtained but the defend (“[T]he S.Ct. at beneficiary of a consti testimony ant’s as If well. defendant prove tutional error beyond a rea [must] “in order to impact overcome the sonable doubt that the complained error illegally confessions obtained hence did not obtained”). contribute the verdict introduced, improperly testimony then his It has failed to do so. by illegality tainted same ren dered the confessions themselves inadmis Excluding from our consideration States, sible.” Harrison v. United statement Smith’s trial 219, 223, 2008, 2010, testimony,11we remaining do think the (1968) (footnote omitted). L.Ed.2d evidence was sufficient to assure that the Such testimony tainted “cannot be con admitting error of Smith’s statement was independent sidered as guilt evidence of government’s against harmless. The case purposes of applying the harmless error essence, reduced to its Estelle, consisted of rule.” Smith v. 430, 527 F.2d following (1) (5th evidence: Harrison, Robert Gerald’s Cir.1976), supra; citing testimony that arguing, he heard two men People Spencer, 158, 66 Cal.2d 57 Cal. 163, saw Rptr. Gerald the floor and Smith (1967); 424 P.2d bat, State, standing nearby with a baseball Hillard v. heard 286 Md. 406 A.2d belligerent statement, Lewis, Smith make a (1979). supra See also area; no knife in saw (harmful note the medical A.2d at 1133 error testimony examiner’s that death was unnecessary reversаl under rule of Harri son, caused blow the head with a appellant’s since blunt testify decision to instrument; (3) police testimony compelled by other evidence besides peculiar the bat was found stored statement). illegally obtained manner in a Although barricaded closet. We testimony think Smith’s was tainted strongly impli this circumstantial evidence illegally introduction obtained murderer, cated as it did little to *7 statement, conflicting statement. That as rebut his claim com murdеr was evidence,9 it did with the medical left Smith mitted in self-defense. This latter function no alternative take the stand in the performed primarily the tainted hope lessening of damaging impact; its evidence, not, which the admission of could explain why not he had told therefore, beyond have been harmless truth to Officer Corboy, and substitute reasonable doubt. purportedly Al- true account of facts. though may other factors Reversed. have motivated Corboy 9. Smith had told that he had struck with a hawk-billed knife. He was afraid of the statement, Gerald with the bat the knee. The man." Smith’s volunteered the ad- medical examiner of testified that to the cause missibility challenged, is was re- p. supra death was a blow the head. See peated during the of Cor- several times course boy's testimony. compelled 10. Smith was not take stand course, testified, 11.Of if Smith had not self-defense, present order to his defense of used statement could not hаve been Corboy since Officer had testified for York, impeach him v. 401 under Harris New home, that while still at Smith’s 643, 222, (1971). 91 S.Ct. L.Ed.2d U.S. coming Smith "told theme man was at him TERRY, concurring: Judge, Associate opinion join judgment of the emphasize I add these few
court. words appellant’s conviction
that our reversal any finding trickery on not based part Detective Cor-
deviousness
boy. suggests Corboy may Appellant improperly by instructing
have acted appel-
transporting officers not to talk to
lant, manner dealt or that the in which he may appellant slyly been de- have
signed to elicit a that would confession volunteered,
appear to have been reach of Miranda v. beyond the
therefore
Arizona, 436, 86 S.Ct. (1966). simply
L.Ed.2d 694 The record argument; support
does not such an on plain me—
contrary, it makes least to —at en- everything done reversing ap-
tirely good faith. We are
pellant’s solely conviction Detec- because many.
tive asked one too question appellant
Once answered “no” to the PD-47, question
fourth nothing
should said more. The con- have ensuing that resulted from con-
fession Ed- suppressed must
versation be under Arizona,
wards v.
v.
Illinois, S.Ct. (1984). BARRY, Jr., Mayor
Marion S. al., Columbia,
District et
Appellants,
WASHINGTON POST
COMPANY, Appellee.
No. 87-296. Appeals.
District of Columbia Court
Argued June 1987. Aug. 10,
Decided