In re C. P. , 411 A.2d 643 ( 1980 )

HARRIS, Associate Judge:

After a factfinding hearing in the Juvenile Branch of the Family Division of the Superior Court, appellant was found guilty of attempted robbery while armed. D.C. Code 1973, §§ 22-2902, 22-3202. Prior to that hearing, alleging Fifth and Sixth Amendment violations, appellant moved to suppress an inculpatory statement which he had made to his mother in the presence of a police officer at the station house, as well as a statement which he made thereafter to the officer. This appeal challenges the denial of that motion; we affirm.

I

One night at about 10:30 p. m., there was an attempted robbery of a woman who had stopped her car at a traffic light. She hurriedly drove off, frustrating the youthful would-be robbers. Shortly thereafter, appellant (who was 13 years old) and three other juveniles were arrested by Officer Spooner Underwood. They first were taken to a police substation and then to Robbery Squad Headquarters, arriving at the latter location at about midnight. Appellant made no statement at that time. Appellant’s mother was called; she arrived at about 1:30 a. m. Officer Underwood told her that charges had been placed against appellant, that she could sit with her son, and that he (Officer Underwood) would talk with them later.

Appellant was given a Metropolitan Police Department rights card, which he read with his mother. While he had never had a comparable experience with law enforcement authorities before (nor had his mother), he signed the card indicating that he understood his rights. He also indicated that he did not wish to answer questions and that he did want an attorney. Appellant’s mother testified at the suppression hearing that at about that time (she did not indicate exactly when) another officer remarked to her, as she sat by her son, something to the following effect: “I should get him to tell about what happened because he was in serious trouble.” She also testified that soon after appellant filled out the rights card, he repeated that he did not want to say anything.

About 30 minutes after appellant signed the rights card, Officer Underwood went with appellant and his mother into an adjoining room. He sat down with them, and again advised appellant of his rights. The officer then informed the mother that the youths who had been apprehended with her son had confessed and implicated appellant. Thereupon, as Officer Underwood sat silently, appellant’s mother called on her son to tell the truth about the incident. At his mother’s urging, appellant admitted to having taken part in the attempted robbery, and to having wielded a BB pistol during the episode.

Thereafter, Officer Underwood led appellant and his mother into another room where the other arrested juveniles and their parents were gathered. Each of the youths recounted the part he or she had played in the crime, with appellant apparently then adding to what he had already confessed the fact that he had pointed a pistol at the complainant during the robbery attempt.

At the suppression hearing, appellant alleged that the police officer’s “use” of his mother to gain incriminating statements after appellant had indicated his desire to remain silent and to have the assistance of counsel violated both his Fifth and Sixth Amendment rights. The hearing judge, after carefully considering all the evidence and closely questioning both counsel on the nature of the alleged Fifth and Sixth Amendment violations, expressed the following extensive findings and conclusions: The Court finds on the basis of Defendant’s Exhibit No. 1 [the rights card] that this respondent had indicated that he did not wish to make statements without having an attorney present, and indeed he said he did not wish to answer any questions.

He stated, however, that he understood his rights. And he also indicated that his rights had been read to him, and to repeat, that he understood his rights.

The Court finds on the basis of [the rights card] without any evidence to the contrary that this respondent did understand his rights and that indeed he said he did not wish to answer any questions. The Court further finds that this respondent after speaking to his mother while yet in the Robbery Squad’s office did state or give an incriminating statement in the presence of the officer and in the presence of the respondent’s mother.

The Court finds on the basis of the testimony that that incriminating statement, the substance of which has not been revealed to the Court, was not the result of continued questioning or interrogation by the officers, but was indeed a result of a conversation between the respondent and his mother. The Court does not find that the mother employed any kind of coercion or that this was a ploy established or set up by the police for the purpose of inducing the respondent to waive his rights. Indeed it appears to the Court and the Court finds that this respondent was responding to his mother’s urging, albeit, in the presence of the officer when he gave the incriminating statement.

It is a matter of policy that parents ought to be asked to come to the precinct and to the Robbery Squad or any place else where a youngster is being held. And [defense counsel] in his argument candidly points out that the evidence certainly reveals that the officers — and also [the prosecutor] argued to that effect— that the officer did not wait until after this youngster had rendered some statements before calling in the parent. Indeed the parent was called.

And as far as it appears the officer had respected this youngster’s indicating that he did not wish to speak, and as I previously stated there was no further questioning by the officers.

The Court is not prepared to hold that a parent may not ask a child to tell the truth or to make a statement concerning the incident. Whatever has been held by Miranda and Gault and other cases and including Brewer v. Williams [430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977)], the latter case of course applies to Gault, there is certainly nothing that the Court can glean from any of them which suggests that a parent or a relative or indeed some other person may not ask a respondent or perhaps an adult to make a statement.

And if the Court need only to confine its findings in this case to a respondent, on the basis then of all the evidence the Court makes the findings that it has enunciated. On the basis of those findings the Court concludes that this respondent had waived his rights [not] to speak concerning this crime, and that that waiver was not induced by any coercion on the part of the officer, and there certainly was no evidence that it was the result of any coercion on the part of the parent. Accordingly, the Court denies the motion.

Following that determination, appellant was found guilty at a hearing in which his inculpatory statements were admitted into evidence.

II

Our scope of review is limited. See, e. g, D.C.Code 1973, § 17-305(a). As reflected by the above-quoted excerpt from the transcript, the trial court found that appellant understood his Fifth and Sixth Amendment rights, that there was no police questioning after appellant had indicated his desire to remain silent and to have an attorney, and that the inculpatory statement he made in response to his mother’s questioning, in the officer’s presence, constituted an effective waiver of his rights. The trial court also found that appellant’s mother had not been used in a police ploy to induce appellant’s waiver, and that his mother did not overbear his will by coercion.¹ In short, the trial court, properly evaluating the totality of the circumstances, determined that the government had satisfied its burden of showing that there had been no infringement of appellant’s rights and that his confession was voluntary.²

The trial court’s ultimate factual finding of voluntariness is not to be overturned unless it is without substantial support in the evidence. See, e. g., Jackson v. United States, D.C.App., 404 A.2d 911, 924 (1979); In re W.B.W., Jr., D.C.App., 397 A.2d 143, 145 (1979); Taylor v. United States, D.C.App., 380 A.2d 989, 992 (1977); United States v. Lyon, D.C.App., 348 A.2d 297, 298-99 (1975); In re M.D.J., D.C.App., 346 A.2d 733, 735 (1975); United States v. McNeil, 140 U.S.App.D.C. 3, 433 F.2d 1109 (1969).³ The record unquestionably supports the trial court’s ruling.

Ill

It is useful to note basically what the Supreme Court resolved in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In a recent case, the Court reversed a decision of the California Supreme Court and reinstated a trial judge’s determination that a juvenile’s confession (given during police interrogation, which is not the situation here) had been voluntary. Fare v. Michael C., 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197 (1979). In doing so, it succinctly characterized Miranda as follows:

In Miranda v. Arizona, 384 U.S. 436 [, 86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), this Court established certain procedural safeguards designed to protect the rights of an accused, under the Fifth and Fourteenth Amendments, to be free from compelled self-incrimination during custodial interrogation. The Court specified, among other things, that if the accused indicates in any manner that he wishes to remain silent or to consult an attorney, interrogation must cease, and any statement obtained from him during interrogation thereafter may not be admitted against him at his trial.[⁴] Id., at 444-445, 473-474 [, 86 S.Ct. at 1612-1613, 1627-1628.] [99 S.Ct. at 2563.]

Thus, it is clear that custodial interrogation (obviously, by governmental authorities) is what was intended to be interdicted, and that the bedrock of Miranda is the Fifth Amendment right “to be free from compelled self-incrimination” or from interrogation in the face of a request for counsel. In this case, it must be borne in mind that there was no custodial interrogation by the police.

We do, of course, continue to operate on the assumption that the principles of Miranda apply in cases in which there has been custodial questioning of a juvenile.⁵ See, e. g., In re Creek, D.C.App., 243 A.2d 49 (1968). In addition, we feel obliged to consider juvenile confessions with special caution — particularly those which have been made in the absence of counsel. See In re Gault, 387 U.S. 1, 45 and 55, 87 S.Ct. 1428, 1453 and 1458, 18 L.Ed.2d 527 (1967). We have ruled against the use of a juvenile’s confession when police overreaching has been apparent. See, e. g., In re R.A.H., D.C.App., 314 A.2d 133 (1974).

On the other hand, we properly have rejected a per se proscription against the use of confessions by juveniles, holding that despite the special care that must be taken, such confessions may be obtained and used upon a clear showing of both a prior notification of rights and a subsequent knowing and intelligent waiver. See In re W.B.W., Jr., supra, 397 A.2d at 146; In re F.D.P., D.C.App., 352 A.2d 378, 380-81 (1976); In re J.F.T., D.C.App., 320 A.2d 322, 324 (1974).⁶ See also North Carolina v. Butler, 441 U.S. 369, 99 S.Ct. 1755, 60 L.Ed.2d 286 (1979). Moreover, the Supreme Court has made it clear that the Constitution does not direct a complete ban on police exchange with an accused and the taking of a voluntary statement following a prior assertion of the right to remain silent. Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). See also Peoples v. United States, D.C.App., 395 A.2d 41 (1978); Taylor v. United States, supra, 380 A.2d at 993; United States v. Rodriguez Gastelum, 569 F.2d 482, 486-88 (9th Cir. 1978) (en banc). Cf. White v. Finkbeiner, 611 F.2d 186 (7th Cir. 1979); Nash v. Estelle, 597 F.2d 513 (5th Cir. 1979) (en banc) (waiver following assertion of right to counsel).

Applying established law to the facts of this case, we sustain the trial court’s finding, which is supported by substantial evidence, that appellant’s confession was not the result of police-initiated interrogation, but rather of well-intentioned parental influence. See In re C.P.D., D.C.App., 367 A.2d 133 (1976). In C.P.D., supra, a juvenile arrestee was brought to a station house, was read his rights in the presence of his stepfather, and indicated that he did not want to answer any questions. Then, with a police officer within earshot, the youth, in response to a question from his stepfather, made an inculpatory statement. The officer was allowed to testify as to that statement; we affirmed the finding of guilt. We noted appellant’s challenge to the admission of the statement on the ground that its elicitation violated his Miranda rights, and his contention that it was not voluntarily given. After considering the evidence, we concluded:

Since appellant’s statement was not given in response to police interrogation, and since there is nothing in the record before us to [indicate] that it was in any way involuntarily obtained as a result of compulsion, we hold that it was correctly admitted into evidence below. [Id., at 135.]

See also Fuller v. United States, 132 U.S. App.D.C. 264, 277-78, 407 F.2d 1199, 1212-14 (1967), cert. denied, 393 U.S. 1120, 89 S.Ct. 999, 22 L.Ed.2d 125 (1969).

There can be no question but that it is a desirable policy for a parent of an accused juvenile to be called to the station house, so as both to be present at the occurrences there and to be able to consult with the youth. Also, appellant properly does not challenge the fact that the officer informed his mother of the nature of the charges, and then advised both mother and son of the other youths’ confessions which implicated him. This was information which mother and son were entitled to have, whatever effect it might have on them, and for whatever use they might make of it. See, e. g., United States v. Rodriguez-Gastelum, supra, 569 F.2d at 485 & n. 6; United States v. Pheaster, 544 F.2d 353, 366-68 (9th Cir. 1976), cert. denied sub nom. Inciso v. United States, 429 U.S. 1099, 97 S.Ct. 1118, 51 L.Ed.2d 546 (1977).

Appellant argues that In re C.P.D., supra, is distinguishable from this case because here the police officer did not merely overhear a discussion between parent and child, but rather created the situation which led to the confession made in the officer’s presence. However, there was nothing improper in the officer’s being present while mother and son were together. See Fuller v. United States, supra. Even assuming that the officer hoped a confession would be forthcoming, that would be insufficient to taint the confession. The officer did not seek to conceal his presence, and he had again advised both appellant and appellant’s mother of the youth’s Miranda rights immediately before the mother sought to elicit the truth from her son.⁷

As for the comment allegedly made to the mother by another officer at the station house to the effect that she “should get him to tell what happened because he was in serious trouble,” such a suggestion — if in fact it was made — perhaps might better have been left unsaid. However, such words, in the overall setting reflected by the record, do not render the subsequent confession involuntary. We note the following statement which was made by the Supreme Court in Fare v. Michael C., supra:

The police did indeed indicate that a cooperative attitude would be to respondent’s benefit, but their remarks in this regard were far from threatening or coercive. [99 S.Ct. at 2573.]

Finally, while we are sensitive to the teachings of In re Gault, supra, we do quote with approval the following language of this court which is expressive of the general acceptance of the parens patriae concept which remains inherent in our juvenile justice system:

In delinquency proceedings particularly, it is essential to balance the constitutional rights which relate to possible loss of liberty with the recognized modern approach and policy of care and treatment for the criminally-bent youth. This balancing cannot assume a legal incapacity to waive those rights without sacrificing, in many cases . . . the vital interests underlying the policies and goals of the juvenile court system. [In re J.F.T., supra, 320 A.2d at 324.]

Cf. Pee v. United States, 107 U.S.App.D.C. 47, 274 F.2d 556 (1959).

Affirmed.

1 . Such findings, of course, are factual ones to be made by the trial judge, and § 17-305(a) of the Code makes it clear that we are not free to upset them unless they are without supporting evidence. To justify the position taken in his dissenting opinion, our colleague finds it necessary to make his own contrary factual finding that the mother “became an agent [of the police] for official interrogation.” [Post, at 653.] We respectfully suggest that the dissent thus reflects a misconception of the proper nature of appellate review. It is not our role to determine how we would have ruled on the motion had we been the trial judge; our sole function is to determine whether the trial court committed reversible error.

Additionally, on several occasions our dissenting colleague characterizes certain testimony upon which he chooses to rely as “undisputed.” There is no basis for such an assertion. The trial judge was free to believe or disbelieve any of the testimony. While we have studied the record to determine the existence of supportive evidence, the case must be considered by us in light of the uniquely complete findings which were made by the trial judge, including that “the mother employed [no] kind of coercion.”

2 . The Supreme Court recently has noted: “[The] totality of the circumstances approach is adequate to determine whether there has been a waiver even where interrogation of juveniles is involved.” Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979). See also Johnson v. Zerbst, 304 U.S. 458, 464, 58 S.Ct. 1019, 1023, 82 L.Ed. 1461 (1938).

3 . Some appellate courts apply an “abuse of discretion” standard of review in considering voluntariness questions. See, e. g., State v. Weinacht, 203 Neb. 124, 277 N.W.2d 567, 571 . (1979). The proper standard in this jurisdiction was stated succinctly by the circuit court in United States v. McNeil, supra, as follows:

In the case at bar, however, appellant’s claim of involuntariness and lack of understanding was squarely presented to the trial judge and was flatly rejected, and only if the judge’s decision lacks substantial support in the evidence [are we] disposed to alter it. [140 U.S.App.D.C. at 6, 433 F.2d at 1112.]

4 . After so describing Miranda in Fare v. Michael C., the Supreme Court went on to cite Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971), in noting that the proscription of Miranda is applicable “at least during the State’s case-in-chief.” 99 S.Ct. at 2568.

5 .In the interest of thoroughness, however, we quote the following footnote in the Supreme Court’s decision in Fare v. Michael C., supra:

Indeed, this Court has not yet held that Miranda applies with full force to exclude evidence obtained in violation of its prescriptions from consideration in juvenile proceedings, which for certain purposes have been distinguished from formal criminal prosecutions. See McKeiver v. Pennsylvania, 403 U.S. 528, 540-541 [, 91 S.Ct. 1976, 1983-1984, 29 L.Ed.2d 647] (1971) (plurality opinion). We do not decide that issue today. In view of our disposition of this case, we assume without deciding that the Miranda principles were fully applicable to the present proceedings. [99 S.Ct. at 2567 n. 4.]

6 . We are mindful that to be acceptable, such a confession should be “voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.” In re Gault, supra, 387 U.S. at 55, 87 S.Ct. at 1458 (footnote omitted).

7 . Appellant also alleges that his statement which were made during the subsequent roundtable session with the other youths and parents should have been suppressed. However, in view of our conclusion that appellant’s inculpatory statement to his mother was not the result of improper police activity, we see no error in the use of the second confession. (The record reflects that nothing critical to his guilt was revealed by appellant at the roundtable session which he had not already revealed in response to his mother’s questions.)