Jalonte Little v. United States , 2015 D.C. App. LEXIS 526 ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 10-CF-765 & 13-CO-481
JALONTE LITTLE, APPELLANT,
v.
UNITED STATES, APPELLEE.
Appeals from the Superior
Court of the District of Columbia
(CF3-22821-08)
(Hon. Ronna L. Beck, Trial Judge)
(Argued April 15, 2014 Decided November 12, 2015)
Debra L. Soltis, with whom Paul Y. Kiyonaga was on the brief, for
appellant.
L. Jackson Thomas, II, Assistant United States Attorney, with whom Ronald
Machen Jr., United States Attorney at the time the brief was filed, Roy W. McLeese
III, Assistant United States Attorney at the time the brief was filed, and Heather L.
Carlton, Elizabeth Danello, Chrisellen R. Kolb, Jeffrey Pearlman, Thomas Rees,
and Elizabeth Trosman, Assistant United States Attorneys, were on the briefs, for
appellee.
Before BLACKBURNE-RIGSBY and BECKWITH, Associate Judges, and
BELSON, Senior Judge.
BECKWITH, Associate Judge: For nearly two hours of stationhouse
questioning, in the face of false reports that several witnesses had identified him, a
2
false claim that his fingerprints were found in the vehicle, and persistent illusory
promises of favorable treatment if he confessed, eighteen-year-old Jolonta1 Little
remained steadfast in his denials that he was involved in the carjacking of which he
was later convicted in this case. Things began to change, however, when a
detective goaded him about the prospect of being sexually assaulted when he
arrived at the D.C. Jail if he did not confess and thus give police “an opportunity to
help [him] instead of incarcerate [him].” As Mr. Little began to waver, the
detectives then proposed the idea of meeting with a lawyer to work out a deal.
Under intensifying pressure, and having heard the detective mention a lawyer, Mr.
Little inquired, “So where my attorney at?” and stressed that he was “trying to
have that meeting set up.” There would be no such meeting with his lawyer unless
Mr. Little put some “meat . . . on the table” and confessed, the officer said: “I got
to have a reason for that to happen, and that reason is going to have to be you
telling me what happened that day when that lady got robbed.” At this point, in the
face of a threat of being raped in jail, a confusing statement about when he could
see a lawyer, and a statement that conditioned a meeting with a lawyer upon his
1
Mr. Little’s name is spelled “Jalonte” in court records and in the caption of
this case. During questioning, Mr. Little spelled his first name “Jolonta,” and
because it appears as “Jolonta” throughout the transcript of the interrogation
videotape, we will generally use that spelling in this opinion.
3
confessing to the carjacking in this case, Mr. Little’s resolve collapsed and he
confessed.
The firmness of Mr. Little’s denials during disquieting tactics and the
persistence of those denials as the pressure increased help persuade us that when he
finally did speak in the immediate wake of the most coercive tactics mentioned
above, his statements were not made “freely, voluntarily, and without compulsion
or inducement of any sort.” Haynes v. Washington, 373 U.S. 503, 513 (1963); In
re J.F., 987 A.2d 1168, 1177 (D.C. 2010). On this ground, we hold that Mr.
Little’s motion to suppress his confession should have been granted, and we
reverse Mr. Little’s convictions2 and remand for a new trial.
I.
The charges against Jolonta Little stem from a September 19, 2008, incident
in which a woman named Camilla Deline was standing near her Toyota Highlander
outside her daughter’s apartment on T Street N.W. when she was grabbed from
behind and choked by one man while another man demanded her keys. Ms.
Deline’s daughter, Marisa Deline, arrived to find a young man in the driver’s seat
2
Mr. Little was convicted of carjacking, D.C. Code § 22-2803 (a) (2012
Repl.), robbery, D.C. Code § 22-2801 (2012 Repl.), and aggravated assault, D.C.
Code § 22-404.1 (2012 Repl.).
4
of her mother’s car, another young man running around to the passenger side of the
car, and her mother lying unconscious in the street. When Marisa yelled, the two
men fled on foot. After a cell phone found in the vehicle was traced to Jolonta
Little, police arrested Mr. Little on a juvenile absconder warrant and brought him
to a Metropolitan Police Department station for questioning eight days after the
incident. The interrogation was videotaped, and Mr. Little confessed to the
carjacking at issue in this case approximately two hours into the more than five-
hour-long videotape.
A. The Interrogation
As one detective put it, Jolonta Little’s day began on September 27, 2008,
when police “bang[ed] [his] door down at 7:00 in the morning and drag[ged] [him]
out of bed while [he was] still in [his] drawers.” By 8:37 a.m., Mr. Little, who had
just turned eighteen the month before, was sitting alone in a small interrogation
room, on a metal chair, with one wrist chained to the floor and both feet shackled,
fidgeting and seeming to try to find a position in which he could sleep.
Several minutes into the videotape Detective Joe Crespo entered the room,
followed some time later by Detective Dailey. Near the beginning of the
5
interrogation, Detective Crespo read Mr. Little his Miranda3 rights. Before doing
so, he told Mr. Little that this interrogation was “bigger than [the] absconder
warrant” that he was picked up on, that “people are calling us telling us it was you”
and “telling us what . . . you’ve done,” that he had been identified as the
perpetrator in some “robberies,” and that Detective Crespo was “already straight
on [his] case.” “If we don’t work it out,” Detective Crespo said, “we’re going to
go through with what we’re doing and you’re going to get hit with every one we
got . . . [u]nless you’re able to offer some sort of explanation and alibi”—like
explaining more about the money his mother gives him every month, as “not
everybody has that, so that’s a good thing for you.” Mr. Little could refuse to
answer any questions, the detective told him, “or you can say, you know, I want to
talk to you because I want to find out more about what we know, you know what I
mean? Because maybe we’re wrong, who knows.” But “this will be a unique
opportunity for you to find out exactly what we got,” and to “offer an explanation”
or “offer . . . something” that would convince the detectives they are wrong.
Detective Crespo read Mr. Little his rights, then told him that “if you want to
find out more about what we think we know, you’re going to have to agree to
answer questions.” Mr. Little hesitated, then said he would agree “as long as you
3
Miranda v. Arizona, 384 U.S. 436 (1966).
6
all let me stop when I say I ain’t ready—I don’t want to talk,” to which Detective
Crespo responded:
That’s cool. We can’t make you do nothing because
believe me when I tell you, this is an opportunity for you.
This is not just—if we went through what we got already,
we would have got a warrant for you already, but I knew
that there has to be some sort of explanation because we
both have been doing this for a long time. There had to
be an explanation for what’s been going on, and we are
offering you the opportunity to explain something
because typically, nine times out of ten, we get the
warrant and lock you up and that’s it.
After Detective Crespo instructed him to sign the form waiving his rights—
“and I need you to sign it right there. What position you play in football?”—Mr.
Little signed the form and the two then discussed football. At other points
throughout the interrogation, the detectives talked to Mr. Little about other topics
besides the offenses they suspected him of committing, including his son, his
girlfriend, his Muslim religion, his hope to get his GED, his mother—“[Y]our
mom loves you to death . . . and now she doesn’t have a son”—and the money his
mother regularly gave him from a monthly check she received that somehow
pertained to Mr. Little’s learning disability. The detectives also inquired about Mr.
Little’s comfort, asking whether he had to use the bathroom and whether he was
“all right,” and offering to get him food from McDonald’s.
Early on in the interrogation, the detectives sought to convince Mr. Little
7
that they already had enough evidence to prosecute him for the offense—that, in
the words of Detective Crespo, “we got you by the balls,” “the chances of you
getting charged with robbery are very high,” and “this case is easy, and there’s a
very good chance you’re going to get convicted of this, okay?” One piece of this
evidence was real—Mr. Little’s cell phone, which was found in the complainant’s
vehicle after the incident at 9th and T Streets. When Detective Crespo showed Mr.
Little the phone, Mr. Little said that it was his phone and that he had lost it before
that robbery occurred. Most of the detective’s “evidence” was feigned. The
detectives told Mr. Little, for example, that his fingerprints were found at the scene
and that several witnesses to the carjacking would testify that they had selected his
photograph from an array of nine photographs, when in fact, the government
presented no fingerprints at trial and no witness identified Mr. Little as one of the
carjackers. Detective Crespo also told Mr. Little—falsely—that he was subject to
an enhanced penalty for robbing a senior citizen.4
As Mr. Little continued to deny being involved in any robbery, the
4
D.C. Code § 22-3601 (2012 Repl.) provides an enhanced penalty of up to
one and a half times the maximum term of imprisonment for certain offenses when
they are committed “against an individual who is 60 years of age or older.”
Camilla Deline testified that she was 58 years old at the time of the offense.
8
detectives tried persuading him that he was going to be convicted no matter what,5
but if he cooperated by confessing, and by naming the other carjacker, he could get
his charge reduced or dropped altogether. “You could be a defendant or a
witness,” Detective Crespo told him. “[T]hey’re going to throw your life away
unless you decide . . . to come clean with everything and talk with us about
whatever is going on and whatever happened.”
While Detective Crespo noted that it was “illegal” for a detective to promise
that Mr. Little’s charge would be dismissed, he said that he had been working with
the U.S. Attorney’s Office for eighteen years, that “they’ve grown to expect the
kind of work that I do,” and that if Mr. Little talked, “the U.S. Attorney’s Office
will be able to do something to hook you up.” In that same vein, Detective Dailey
stated, “I’m trying to be straight up with you so that you can try to save your life. I
don’t want to see a young man go to jail.” When Mr. Little seemed doubtful,
Detective Crespo asked, “Are you out of your mind?” and told Mr. Little about a
man he arrested on his third gun charge in two years who was “walking the street”
“[b]ecause he decided to tell us what happened.” Detective Dailey added:
“There’s plenty of people walking the street today that have done more horrible
5
“I know you did the robbery, okay? That’s a given,” Detective Crespo
said. “I’ve never been involved in a case in 18 years where I was this lucky the
way this case has worked out. You’re going to get convicted on this.”
9
things than you.” As the detectives pressed the theme that “this is your
opportunity,” that “[t]his is where you help yourself,” and that confessing was a
way to avoid spending forty-five years in prison and coming out “a broke down old
man” whom “no girl is going to want” “with a long criminal record trying to get a
job,” Mr. Little continued to deny having robbed anyone.
At various points throughout the interrogation the detectives offered Mr.
Little excuses for his involvement in the carjacking. Referring to Mr. Little as a
“good kid caught up in some bad shit,” Detective Dailey said that “8th and R”—
where Mr. Little said he hangs out—“is a rough place,” and “whether or not it’s
just a matter of you caught up with the wrong crowd, who you were with,
something happens, you know, you might just be there, you know.” He continued:
“I don’t think you’re a dangerous guy. I think you just got caught up in some shit
. . . . We’re trying to work with you and trying to help you, but you got to help
yourself a little bit.” Mr. Little continued to deny any involvement in the offense.
In addition to urging Mr. Little to help himself by confessing, the detectives
also repeatedly characterized his confessing and cooperating as ways to avoid
certain bad consequences. If he didn’t cooperate, they said, they would show his
photo to the victims of other robberies in the area of 9th and T: “Maybe you didn’t
do them, but what if they pick you?” Detective Dailey also said that “there’s a
10
whole lot of robberies on Georgia Avenue” in which he could be a suspect,
“including one that shot a police officer.” The detectives referred repeatedly to
“all these robberies” they could charge him with. But if he confessed: “I don’t
have to show your photo spread to 20 people that were robbed in that area.”
Otherwise, “guess what I’m doing for the rest of the day? Hey, this is Detective
Crespo, I was wondering if you think—could you identify the person that robbed
you? . . . Tell us about this and I won’t have to do that.”
The detectives also imparted another kind of warning. That is, if Mr. Little
did not help himself and confess, he would go to jail—where “[t]here’s a big
difference between being an adult and being a juvenile”—and he would face the
same risk of being sexually assaulted that another man he knew well—his
godbrother, Wee Wee—had recently faced. “You know Wee Wee down at
LeDroit Park? You know what happened to him when he got locked up?”
Detective Crespo asked. “The day Wee Wee went to jail, you know he’s an adult
now. Somebody sexually assaulted him. That’s not how you want to live your
life. You ain’t no Wee Wee.” In a similar vein, the detectives also indicated that if
he did not confess and cooperate, he would be convicted and possibly be
incarcerated far away in a prison while his girlfriend would forget him and be “laid
up in the bed spooning somebody else” and his son would never visit him:
“Maybe you’re going to another state”—“How often is Jaylen going to come see
11
you?”
The officers’ final tack began when Detective Crespo stated that if Mr. Little
confessed, he would arrange “to sit and meet with your attorney . . . before I get an
arrest warrant for you.” “So where my attorney at?” Mr. Little asked. “You pick
one after you go to arraignment,” Detective Crespo responded, continuing that he
could “set up a meeting for you, your attorney, the prosecutor and us,” but before
he did so, “I got to have a reason for that to happen, and that reason is going to
have to be you telling me what happened that day when that lady got robbed.” Mr.
Little said, “See, but I’m trying to have that meeting set up though,” to which
Detective Crespo responded that he promised to arrange the meeting, but “I need to
have some meat to put on the table before I set up a meeting.”6 Shortly thereafter,
Mr. Little asked, “But you ain’t going to charge me as of right now? And you
promise me that?” and Detective Crespo responded, “Yeah, I do promise you that.”
Two minutes later, Mr. Little confessed his involvement in the carjacking on T
Street.
6
This colloquy echoed an earlier comment Detective Crespo made to Mr.
Little that “if you decide to cooperate, you’re not going to get a 45-year sentence,
and I’ll tell you what, and I’ll tell you what I can arrange. If you sit here and tell
us who you were with and tell us about this other deal, I can arrange a meeting
between us two, you, and your attorney, and the prosecutor, and we can work out a
deal[.]”
12
B. The Suppression Hearing and Ruling on the Motion To Suppress
Mr. Little moved before trial to suppress the confession on the grounds that
he had not voluntarily waived his Miranda rights or voluntarily confessed. No
witnesses testified at the suppression hearing, but the court reviewed several
segments of the videotape of the interrogation in open court. The court also
indicated that prior to the hearing it had reviewed most of the videotaped
interrogation—at least “a couple hours of it”—which appeared to include all of the
portions leading up to the confession. The trial court denied the motion to
suppress, ruling that Mr. Little had voluntarily waived his rights and that his
confession was voluntary. The court made no specific comments or findings about
the detectives’ references to the risk of being sexually assaulted in jail or to Mr.
Little’s need to confess before meeting with his attorney, but noted more generally
that the officers engaged in no physical violence; that they offered Mr. Little food,
drink, and an opportunity to use the bathroom; and that Mr. Little appeared
“focused,” “able to engage,” and “had his wits about him.”
C. The Trial and Post-Conviction Proceedings
At trial, the government presented evidence that Camilla Deline was
assaulted by two young men who tried to take her car and who left behind a cell
phone that belonged to Mr. Little. Neither Ms. Deline nor her daughter could
13
identify Jolonta Little as one of the carjackers, but the jury heard evidence that Mr.
Little had confessed to the crime. After a three-day trial, the jury found Mr. Little
guilty of carjacking, robbery, and aggravated assault.
In his brief on appeal, Mr. Little challenged the denial of his motion to
suppress on grounds that his waiver of his Miranda rights was involuntary, that his
Miranda rights were violated when police ignored his assertion of his right to
counsel later during the interrogation, and that his confession was rendered
involuntary by various coercive tactics. After the government argued in its
response that Mr. Little had waived his claim that he invoked his right to counsel
by failing to raise the issue in the trial court, we stayed the appeal while counsel for
Mr. Little filed a motion in the trial court alleging that Mr. Little’s trial counsel
was ineffective in that regard. The trial court denied that motion, ruling that trial
counsel was not ineffective in failing to raise the claim at the suppression hearing
because Mr. Little did not unambiguously invoke his right to counsel during the
interrogation. The court noted that “at best, a reasonable police officer would have
understood that the suspect might be invoking the right to counsel” and that “he
wanted a lawyer present before answering any more questions.” But Mr. Little
might also have merely been “asking about his lawyer’s whereabouts or whether
one had been provided” so that he could evaluate the detectives’ offer to work out
a deal after Mr. Little confessed.
14
II.
Mr. Little contends in this now consolidated appeal that the trial court should
have suppressed his statements because, among other reasons, they were
involuntary and obtained in violation of his Fifth Amendment rights.
Before a confession may be admitted in evidence, the government bears the
burden to prove by a preponderance of the evidence that a defendant’s statements
were given voluntarily. Lego v. Twomey, 404 U.S. 477, 489 (1972). “The test for
determining the voluntariness of specific statements ‘is whether, under the totality
of the circumstances, the will of the [suspect] was overborne in such a way as to
render his confession the product of coercion.’” United States v. Turner, 761 A.2d
845, 854 (D.C. 2000) (quoting Arizona v. Fulminante, 499 U.S. 279 (1991)). In
deciding whether a suspect’s will was overborne, the court evaluates the nature of
the interrogation—including “its duration and intensity, the use of physical
punishment, threats[,] or trickery, and whether the suspect was advised of his
rights”—as well as the characteristics of the accused—including his age,
education, prior experience with the law, and physical and mental condition. In re
J.F., 987 A.2d at 1177 (quoting Graham v. United States, 950 A.2d 717, 730 (D.C.
2008)). “Whether appellant’s statements were voluntary is a question of law
subject to de novo review on appeal, with the appropriate deference to the trial
15
court’s factual determinations.” Graham, 950 A.2d at 735. “[A]n involuntary
statement is inadmissible at trial for any purpose.” Turner, 761 A.2d at 853.
III.
The facts most pertinent to the voluntariness issue in this case—those
contained in the video recording of the interrogation—are undisputed,7 and a close
examination of the course this interrogation took leads us to conclude that the
government has not established the voluntariness of Mr. Little’s confession. We
reach this conclusion based on the totality of the circumstances, but focusing
particularly upon the detectives’ threatening statements about the possibility Mr.
Little would be sexually assaulted in jail if he did not confess and their suggestions
that he could not meet with a lawyer until he put “some meat” “on the table.” Our
determination that his ultimate confession was involuntary is bolstered in part by
the unusual coerciveness of the detectives’ repeated threats to pursue charges
against Mr. Little for offenses they openly indicated they did not suspect him of
committing.
7
See Turner v. United States, 116 A.3d 894, 936-37 (D.C. 2015) (reviewing
a videotaped interrogation for evidence of coercion or lack of voluntariness); Hood
v. United States, 28 A.3d 553, 564 (D.C. 2011) (deferring to “the trial court’s
reasonable determination of disputed facts” and analyzing “[w]hether the
established or uncontested facts suffice to demonstrate the requisite degree of
materiality”).
16
About two hours into the videotape of the interrogation, after Mr. Little had
repeatedly and steadfastly denied involvement in the carjacking, Detective Crespo
resorted to a strategy that differed from the methods the two detectives had
employed up to that point. He asked Mr. Little if he knew what had happened to a
man named Wee Wee “when he got locked up”—“you know he’s an adult now.”
Detective Crespo suggested that Mr. Little needed to confess to avoid “what
happened to” Wee Wee, which is that “[t]he day Wee Wee went to jail”—stressing
loudly that this happened the day Wee Wee arrived—“[s]omebody sexually
assaulted him.” Mr. Little told the officers that Wee Wee was his godbrother, and
Detective Crespo asked Mr. Little again if he had “heard what happened to him”—
that “[s]omebody tried to sexually assault him.” Underscoring the connection
between confessing and steering clear of Wee Wee’s fate, Detective Crespo said
“[t]hat’s not how you want to live your life,” “[y]ou ain’t no Wee Wee,” and
“that’s no place for you to be.” These statements echoed the detectives’ previous
comments in which he urged Mr. Little to give police “an opportunity to help you
instead of incarcerate you” and noted that “now you’re going to be sitting there in
jail with a whole bunch of grown men because . . . you didn’t want to say
anything.”8
8
Other comments in this same vein appeared to exploit Mr. Little’s youth,
(continued…)
17
“[C]ertain interrogation techniques, either in isolation or as applied to the
unique characteristics of a particular suspect, are so offensive to a civilized system
of justice that they must be condemned under the Due Process Clause.” Miller v.
Fenton, 474 U.S. 104, 109-110 (1985) (noting that the Supreme Court “has
continued to measure confessions against the requirements of due process” as well
as the Fifth Amendment privilege against self-incrimination); see also Colorado v.
Connelly, 479 U.S. 157, 163 n.1 (1986) (listing types of coercive psychological
and physical pressures that have arisen in Supreme Court cases). A detective’s
comments urging a teenage suspect to confess in order to avoid the fate met by a
similarly situated godbrother who was also new to the adult criminal justice
system—being sexually assaulted when he got to the jail—is such a technique.
The government commendably acknowledges problems with how police
questioned Mr. Little, its counsel stating at oral argument “personally and on
behalf of the United States” that it was “not a proud moment in the interrogation of
any defendant” when the detectives raised the specter of this teenage suspect being
sexually assaulted in jail. Besides not being a proud moment, the tactic is akin to
the coercive interrogations in Arizona v. Fulminante, 499 U.S. at 287-88, where the
(…continued)
painting a picture of Mr. Little, “basically as a juvenile yourself,” “sitting in jail
. . . with a whole bunch of dudes” and reminding him that “you’re 18 now” and
that the adult system is very different from the juvenile system.
18
Supreme Court held that an offer to protect Fulminante from fellow inmates only if
he confessed—which the court characterized as “a credible threat of physical
violence”—rendered the confession involuntary, and in Payne v. Arkansas, 356
U.S. 560, 564-67 (1958), where the interrogating officer’s promise to protect the
suspect from a vengeful mob of people outside the jailhouse door if he confessed
produced an involuntary confession. “Physical violence or threat of it by the
custodian of a prisoner during detention serves no lawful purpose, invalidates
confessions that otherwise would be convincing, and is universally condemned by
the law. When present, there is no need to weigh or measure its effects on the will
of the individual victim.” Stein v. New York, 346 U.S. 156, 182 (1953), overruled
in part on other grounds by Jackson v. Denno, 378 U.S. 368 (1963).
The threat of physical violence the detectives posed here was decidedly
credible. The kind of sexual assault Detective Crespo told Mr. Little he risked had
happened very recently to someone Mr. Little knew well, on the day he was sent to
jail, in circumstances similar to those in which Mr. Little found himself and,
according to Detective Crespo, it could well happen to Mr. Little if he did not
confess. Mr. Little was in some respects uniquely susceptible to coercion of this
sort given his youth, his inexperience in the adult system (like Wee Wee, who was
“an adult now”), and how close to home this threat involving his own godbrother
hit. See Brisbon v. United States, 957 A.2d 931, 945 (D.C. 2008) (stating that
19
interrogation tactics are more likely to be coercive when they are “used on a
suspect particularly susceptible to police pressure”). Detective Crespo made a
point of noting that Mr. Little was “not as hard” as Wee Wee, yet even Wee Wee
had become the victim of sexual assault.
Immediately after Mr. Little was threatened with the prospect of being
sexually assaulted in jail, the officers’ coercive tactics culminated when Detective
Crespo told Mr. Little that unless he confessed, he could not have a lawyer assist
him in making a deal with the government. This colloquy, which ended with a
confession, began when Mr. Little asked Detective Crespo when he was going to
get the arrest warrant signed:
DETECTIVE CRESPO: If you tell me what happened, I
can promise you this. I’m not going to get that shit
signed today. We’re going to sit and meet with your
attorney before you tell me—before I get an arrest
warrant for you.
JOLONTA LITTLE: So where my attorney at?
DETECTIVE CRESPO: You pick one after you go to
arraignment. If you want, I can set up a meeting for you,
your attorney, the prosecutor and us, but before that
happens, I got to have a reason for that to happen, and
that reason is going to have to be you telling me what
happened that day when that lady got robbed.
JOLONTA LITTLE: See, but I’m trying to have that
meeting set up though.
20
DETECTIVE CRESPO: I promise you that meeting will
get set up, but in order for that meeting to happen, I need
to know something. . . . I need to have some meat to put
on the table before I set up a meeting.
The upshot of Detective Crespo’s statements was that Mr. Little’s right to a
lawyer in the circumstances in which he found himself was conditioned on his
confessing. That is, contrary to Detective Crespo’s earlier assurance that Mr. Little
had “the right to talk to a lawyer for advice before [police] question[ed him]” and
to have the lawyer “with [him] during questioning,” here Detective Crespo made
clear that the meeting Mr. Little was “trying to have . . . set up” with his lawyer
would not happen unless he confessed, and that in any event—confession or no
confession—he would not see a lawyer until “after . . . arraignment.” Any
assumption of continued voluntariness that stemmed from Mr. Little’s signing of
the Miranda rights form faded when the police redefined his right to consult with
counsel by imposing very real restrictions on that right—not until “after . . .
arraignment,” and not until he put “some meat . . . on the table.” Such “wrongful
disregard of [a suspect’s] rights and persistent badgering” are “unquestionably
coercive in nature.” Dorsey v. United States, 60 A.3d 1171, 1203 (D.C. 2013) (en
banc); see also Bond v. State, 9 N.E.3d 134, 141 (Ind. 2014) (holding that
intentionally misleading a suspect regarding his constitutional rights to a fair trial
and an impartial jury rendered that suspect’s confession involuntary).
21
The trial court agreed, in ruling on Mr. Little’s motion under D.C. Code
§ 23-110 (2012 Repl.), that Mr. Little was asking “whether [a lawyer] had been
provided” so that he “could evaluate the officer’s offer” to “hold off getting an
arrest warrant . . . before the detectives had a discussion with his lawyer,
presumably to work out a cooperation deal.” Yet what the videotape also shows is
that the negotiation was going on right then, during the interrogation, and that
Detective Crespo was urging Mr. Little not just to confess but to “work out a deal.”
As Mr. Little’s interrogator was pressing him to make a deal, Mr. Little appeared
interested in exploring that deal with a lawyer right then. The pressure had
mounted since he waived his rights, and he no longer wanted to go it alone. For
purposes of the voluntariness analysis, even if Mr. Little did not unambiguously
invoke his right to counsel,9 he was at the very least making clear, before he
9
While we need not decide that Mr. Little invoked his right to counsel in
order to conclude that the detectives’ handling of his question about his attorney
was misleading and coercive, Detective Crespo’s response to the question “[s]o
where my attorney at?” is illuminating. The detective’s reply that “[y]ou pick one
after you go to arraignment” suggests that he perceived Mr. Little not to be asking
where his attorney was, but whether he could get that attorney now. The answer,
Detective Crespo signaled, was plainly no. “Where the officer understands that the
suspect has asserted his right to remain silent, the fact that someone else could
have believed otherwise, or been confused, is irrelevant.” Stewart v. United States,
668 A.2d 857, 864 (D.C. 1995). Mr. Little’s statements conveyed essentially the
same message as the statement the Supreme Court assumed was an invocation of
rights in Edwards v. Arizona, 451 U.S. 477, 479 (1981): “I want an attorney
before making a deal.”
22
confessed, by asking Detective Crespo about his attorney and by “trying” to “set
up” the kind of meeting Detective Crespo proposed, that he wished an attorney
were there to help him “work out a deal” with the police and the prosecutor. The
detective’s indication that Mr. Little had to confess first and consult with counsel
later was part and parcel of the pressure that produced a confession almost
immediately thereafter. This coercion was exacerbated when Detective Crespo
wrapped up the discussion similar to how he began it, with a promise not to charge
Mr. Little “as of right now” if he confessed: “And you promise me that?” Mr.
Little asked, to which Detective Crespo responded, “Yeah I promise you that.”10
Even if the detectives’ sexual assault references were not inherently
coercive, the videotape shows how efficiently the combination of this tactic and the
detectives’ statements about meeting with a lawyer broke down Mr. Little’s at first
unmistakable determination not to incriminate himself and thus supports a
conclusion that these tactics had an actual coercive effect on Mr. Little.11 See In re
10
The government notes that the promise was qualified and contends in any
event that Detective Crespo took it back, but this is unclear from the videotape.
Mr. Little began to confess almost immediately after this exchange, and there are
some indications later during the videotape, when police are questioning him about
other crimes he witnessed or knew about, that he was surprised to learn he would
not be released that day.
11
Courts have recognized a distinction between tactics that are related to the
government’s evidence of the suspect’s guilt—such as a fake lie detector test in
(continued…)
23
J.F., 987 A.2d at 1177 (holding that J.F.’s sixty-three denials before finally
confessing constituted one of four factors leading the court to hold that his
confession was involuntary). Even as the detectives increased the pressure, but
before they raised the specter of prison rape and indicated he had to confess before
he could meet with his lawyer, Jolonta Little repeatedly insisted that he was not
involved in the offenses about which he was being questioned: “I don’t rob
people,” “I don’t need to rob nobody,” “I don’t be robbing nobody,” “I don’t be
touching females,” “I wasn’t in nobody car,” “I would never rob nobody up my
(…continued)
Contee v. United States, 667 A.2d 103, 104 (D.C. 1995), or a deliberate lie about a
fellow perpetrator’s accusations in Davis v. United States, 724 A.2d 1163, 1168
(D.C. 1998)—and tactics that exert pressure on extrinsic grounds, such as
threatening a suspect with the loss of her children and federal benefits, see Lynumn
v. Illinois, 372 U.S. 528, 534 (1963), or falsely telling a suspect that his mother and
grandmother had been arrested, see Brisbon, 957 A.2d at 944. As this court said in
Brisbon, a suspect who was completely innocent of the offense in question “might
well confess . . . for fear of the extraneous adverse consequences” described in
tactics like these. Id. at 945. Here, Detective Crespo’s comments about the risk of
being sexually assaulted at the jail likewise played on Jolonta Little’s fear and
“distorted [his] rational choice . . . by introducing a completely extrinsic
consideration” of the sort that might induce even an innocent defendant to confess.
See Holland v. McGinnis, 963 F.2d 1044, 1052 (7th Cir. 1992) (describing
Lynumn, 372 U.S. 528). Having said this, we note that involuntary statements
must be suppressed “‘whether true or false,’” Blackburn v. Alabama, 361 U.S. 199,
206 (1960) (quoting Lisenba v. California, 314 U.S. 219, 236 (1941)), and the
involuntariness inquiry must focus not on discerning truth, but on prohibiting
conduct that “wrings a confession out of an accused against his will.” Blackburn,
361 U.S. at 206-07; see also Lego v. Twomey, 404 U.S. at 624 (“The use of
coerced confessions, whether true or false, is forbidden because the method used to
extract them offends constitutional principles.”) (citation omitted).
24
way,” “I didn’t get in nobody car. I didn’t rob no lady,” “I’m a Muslim. I
wouldn’t dare touch no lady in no type of way if she don’t want me to,” “I ain’t
robbed nobody,” “I didn’t. I didn’t,” “I don’t even know about that,” “I ain’t do it
though,” “I don’t even know what you’re talking—” “I don’t even rob people
anyway,” “I ain’t robbed nobody, sir,” “I ain’t touch her, I ain’t rob her, I ain’t do
nothing, you know what I’m saying.”
When Detective Crespo told Mr. Little the news about “what happened to
[Wee Wee]” “[t]he day [he] went to jail,” the change in Mr. Little’s bearing was
demonstrable. As he shifted in his chair, he stated in a low voice, “[T]hat’s my
godbrother.” Within roughly one minute after the conversation about Wee Wee,
Mr. Little made a point of saying that he did not rob anybody “on Georgia
Avenue”—as opposed to T Street, the location of the robbery in this case—and
then said he “didn’t rob that lady” on T Street in a way that suggested he may have
been present but was not the actual robber. Shortly thereafter, when Detective
Crespo pressed him repeatedly to name his accomplice, he squirmed back in his
chair and murmured, “I don’t know, man. I don’t know, man. I don’t know, man,”
causing Detective Crespo to respond, “Jolonta, you’re this close.” Moments later,
Detective Crespo shifted the conversation to the logistics of meeting with his
attorney and making a deal. The imminence of Mr. Little’s confession in the wake
of these combined strategies bears out their coercive effect.
25
While the detectives’ use of Wee Wee’s sexual assault and their handling of
Mr. Little’s question about his attorney stand out as the most coercive aspects of
the interrogation in this case, there were other deceptive tactics in play during Mr.
Little’s questioning, and our case law instructs us to consider “threats or trickery”
in evaluating the nature of the interrogation. See In re J.F., 987 A.2d at 1177. In
Dorsey, for example, we condemned such “overreaching tactics” as “the
detectives’ warnings to Dorsey that he would suffer adverse consequences if he
insisted on consulting counsel and exercising his constitutional rights, their
provision of dubious legal advice to sway Dorsey’s judgment, and their
suggestions as to what story Dorsey could tell to minimize the gravity of his
crimes”—tactics that surfaced to varying degrees in Mr. Little’s interrogation. See
60 A.3d at 1204 (noting that if Dorsey had “given in and confessed during the first
round of his interrogation, we would find it impossible to conclude that he made a
voluntary waiver or confession”). “When the officers who question a suspect by
using trickery demonstrate an ‘undeviating intent . . . to extract a confession . . . the
confession obtained must be examined with the most careful scrutiny.’” Brisbon,
957 A.2d at 945 (quoting Spano v. New York, 360 U.S. 315, 324 (1959)); Beasley
v. United States, 512 A.2d 1007, 1015 (D.C. 1986) (likewise noting that “[t]he use
of deception or trickery by police during an interrogation” is “subject to close
scrutiny”). It is true that such deception “does not in and of itself render an
26
otherwise voluntary confession invalid,” id., and our case law is brimming with
cases rejecting appellants’ voluntariness claims where the interrogating officers
exaggerated the evidence against a suspect, for example, or made up evidence
altogether. See, e.g., Dorsey, 60 A.3d at 1206; Davis v. United States, 724 A.2d
1163, 1168 (D.C. 1998); Contee v. United States, 667 A.2d 103, 104 (D.C. 1995).
As to many portions of the interrogation, the present case could be added to
that body of case law. While the officers here bluntly lied to Mr. Little when they
told him that his fingerprints were found on the complainant’s vehicle and that
several witnesses picked his photo from an array and would identify him at trial,
the videotape does not indicate that these falsehoods played a discernible role in
inducing Mr. Little’s confession, and he continued to firmly deny any involvement
in the carjacking: “My fingerprints couldn’t have been in the car. I wasn’t in no
car. I’m going to tell you that now.” At another point, Mr. Little admitted that the
evidence the detectives claimed they had against him was “enough evidence” and
that “it sound like it’s me,” but “[a]ll I can do is, man, say I ain’t do it man . . . all’s
I can do is what, take it to trial.”
But one deceptive tactic—the threat of prosecution of crimes the officers
openly admitted they did not think Mr. Little committed, particularly one involving
the shooting of a police officer—strikes us as different in kind. The government
27
contends that Detective Crespo’s promise to show Mr. Little’s photograph to all
the robbery victims in the area was not a threat to Jolonta Little “but an explanation
of how the investigation would continue without his confession.” But Detective
Crespo’s comment that “[m]aybe you didn’t do them, but what if they pick you?,”
his stated intention to pursue these investigations only if Mr. Little did not
cooperate, and the detectives’ stakes-raising reference to a police officer being shot
during one of the unsolved robberies have no ostensible purpose other than to scare
Mr. Little with the prospect of being falsely accused of unrelated robberies,
perhaps a lot of them, if he did not confess to this carjacking. See Holland v.
McGinnis, 963 F.2d 1044, 1052 (7th Cir. 1992). Although Detective Crespo
conceded, “I don’t think you shot at a cop,” Detective Dailey was quick to inform
Mr. Little that the “suspect meets your description.” This kind of pressure to
confess is tantamount to the fear of extrinsic adverse consequences that our
decision in Brisbon recognized could prompt an innocent person to confess. See
Brisbon, 957 A.2d at 945; see also United States v. Villalpando, 588 F.3d 1124,
1128 (7th Cir. 2009) (stating that it is “necessarily coercive” for the police to
engage in “conduct that influences a rational person who is innocent to view a false
confession as more beneficial than being honest,” so “our task is to examine
whether [the suspect] was not able to make a rational decision due to promises
made by the interrogating detective”).
28
The government contends in its brief that “the non-coercive nature of the
interview is best reflected by appellant’s comfort in talking with the detectives.”
And indeed, numerous factors might suggest, at least on a superficial level, that
Mr. Little was not distraught or unnerved. He had experience with the criminal
justice system prior to this point, albeit only as a juvenile.12 He waived his
Miranda rights.13 He was not physically touched, he knew that he was being
questioned about “robberies,” and he was offered food14 and a bathroom break. He
12
As Detective Crespo told Jolonta Little, “There’s a big difference
between being an adult and being a juvenile, okay?” There is no indication that
Mr. Little had taken part in this kind of stationhouse interrogation before.
13
That a suspect was advised of his Miranda rights is an indication of
voluntariness. See, e.g., In re J.F., 987 A.2d at 1177; United State v. Lopez, 437
F.3d 1059, 1063-64 (10th Cir. 2006). Mr. Little argues that his waiver was not
valid because, among other things, the police made prefatory statements diluting
the warnings and rendering them ineffective. The recitation of rights in this case
had its coercive elements, ranging from the detectives’ attempts to persuade Mr.
Little that he had nothing to gain by invoking his right to silence because they
already had an airtight case against him and he was “going to get hit with every
one we got” unless he offered “some sort of explanation and alibi” to their
apparent attempt to distract him with talk of football while he was deciding
whether to sign the waiver form. Because we reverse on voluntariness grounds, we
need not decide whether the officers’ warnings as a whole reasonably conveyed
Mr. Little’s rights under Miranda.
14
In a totality-of-the-circumstances analysis, it is worth noting that in
response to the offer of food, Mr. Little said he was fasting for Ramadan. Police
had awakened and arrested Mr. Little early in the morning at his home, so he
presumably had not eaten prior to the interrogation and he told police he was not
allowed to eat for many hours—not until after 7 p.m. That he was offered food is
thus not a strong factor in support of voluntariness, and instead the fact that he told
(continued…)
29
asked questions of the detectives, sometimes tried to negotiate, played with his
hair, and at one point even joked that he would take the detective’s phone number
and get back with him. While he was confessing, Mr. Little leaned back and
twirled his hair.
Behavior is an appropriate consideration, but “a suspect’s demeanor is
susceptible to many interpretations and cannot be held determinatively against
him.” In re J.F., 987 A.2d at 1179 n.23. On this record, these considerations—
that is, an 18-year-old’s seeming intent to betray no weakness or hint of
vulnerability to the police officers who otherwise have him chained to the floor—
do not satisfy the government’s burden to demonstrate the voluntariness of Mr.
Little’s confession. Even if we read a great deal into his level of engagement with
the detectives and assume a familiarity with the adult system based on matters Mr.
Little had in juvenile court,15 the totality of the circumstances surrounding this
(…continued)
the officers he was fasting serves as some evidence that Mr. Little might be
affected by hunger and the detectives knew it. Cf. Colorado v. Connelly, 479 U.S.
at 164-65 (noting that due process is violated when police know of and exploit the
deficient mental condition of the defendant).
15
The trial court noted at the suppression hearing that “[i]t’s not clear just
because he was arrested, that he has been given warnings,” though when Detective
Crespo asked him at the beginning of the interrogation, “You’ve been read your
rights before, right? So you know if you agree to talk to me and you say you know
what, I don’t want to answer that question, you know you can say that, right?,” Mr.
(continued…)
30
interrogation offers no assurance that Mr. Little’s confession was uttered
voluntarily.
IV.
The interrogation of suspects “is undoubtedly an essential tool in effective
law enforcement,” Haynes, 373 U.S. at 515, and it is beyond serious question that
hard-hitting tactics in and of themselves do not render involuntary any statements
elicited by those tactics. See In re J.F., 987 A.2d at 1178 (agreeing with the
government “that officers will sometimes need to be aggressive in their
investigation of crimes” (internal quotation marks omitted)). Yet in this case,
where police were interrogating a teenage suspect who was chained to the floor in
a small stationhouse interrogation room, where they instilled in him a fear of being
raped in jail, where they played up the risk that he would be prosecuted for myriad
robberies they did not suspect him of committing, and where the suspect
emphatically denied he had robbed anybody until police told him, when he
inquired “So where my lawyer at?,” that he had to confess before he could arrange
a meeting with his lawyer, the combination of the timing and the nature and
(…continued)
Little responded, “Yeah, I know,” and said nothing to suggest the detective was
wrong in assuming that he had been read his Miranda rights before.
31
intensity of these tactics leads us to the conclusion that the confession was not
voluntary, that its centrality to the government’s case precludes it from being
deemed harmless,16 and that Mr. Little should have a new trial at which his
confession is excluded.
Having concluded that the trial court erred in admitting Jolonta Little’s
confession at trial, we reverse Mr. Little’s convictions and remand this case for a
new trial.
So ordered.
16
The Supreme Court held in Fulminante that the harmless-error rule
applies to erroneously admitted coerced confessions, though it further held that
“[a] confession is like no other evidence” and that “the risk that the [coerced]
confession is unreliable, coupled with the profound impact that the confession has
upon the jury, requires a reviewing court to exercise extreme caution before
determining that the admission of the confession at trial was harmless.”
Fulminante, 499 U.S. at 296. The government has sensibly not argued here that if
Mr. Little’s confession was involuntary then its admission was harmless,
notwithstanding that Mr. Little twice repeated his confession after the initial
interrogation. See Darwin v. Connecticut, 391 U.S. 346, 351 (1968) (Harlan, J.,
concurring in part and dissenting in part) (stating that where the government seeks
to use a confession uttered after an earlier involuntary confession, it must prove
“not only that the later confession was not itself the product of improper threats or
promises or coercive conditions, but also that it was not directly produced by the
existence of the earlier confession”); Johnson v. United States, 609 A.2d 1112,
1116 (D.C. 1992) (noting that in Ruffin v. United States, 293 A.2d 477, 480 (D.C.
1972), this court adopted Justice Harlan’s approach to successive confessions).