Taylor v. State , 2011 Del. LEXIS 328 ( 2011 )

BERGER, Justice,

for the majority:

In this criminal appeal we consider, among other issues, whether a witness’s out-of-court statement was voluntary, and therefore admissible under 11 Del. C. § 3507. For the first two hours after he was taken into custody, the witness denied any knowledge of the murder under investigation. The interrogating officer then handcuffed the witness to his chair leg and (falsely) told the witness he was going to be arrested. After breaking down and crying, the witness gave a statement incriminating appellant. The Superior Court reviewed the taped statement and concluded that the statement was voluntary because the witness’s will was not overborne. We hold that a statement given by witness who has been handcuffed and told that he is being arrested is presumptively involuntary unless the witness is given the same protections afforded to suspects who are in police custody. Accordingly, we reverse.

Factual and Procedural Background

One evening in August 2008, Jaiquon Moore was walking down West 5th Street, in Wilmington, Delaware. He passed three men — Allen Taylor, Timmy Carter, and Steven Sanders — who were sitting on some steps. After passing them, Moore turned back. The three men stood up and started approaching Moore. The men exchanged words. Then Taylor pulled out a gun and shot Moore twice. Taylor, Carter, and Sanders fled as a crowd gathered around Moore, who was dying.

The police never recovered the weapon or any shell casings. There was no DNA evidence, fingerprint evidence, video from surveillance cameras, or confession. The police did track Taylor’s cell phone calls. The police learned that about two hours after the killing, Taylor used his cell phone from a location about two miles from the crime scene. About one hour after that, the cell phone was tracked to Haddonfield, New Jersey, near the New Jersey Turnpike. The following afternoon, the cell phone was used in Brooklyn, New York, and continued to be used in the New York City area for about four days. Taylor was arrested in New York several months later.

Several witnesses testified at trial. Ra-heem Smith, a friend of Moore’s, testified that he saw Moore pass Carter, Sanders, and Taylor, and within seconds he heard gunshots. Smith did not see who shot Moore. Aieyenia Bailey gave conflicting statements to the police. In one, she said she saw Carter hand Taylor a gun. At trial, she testified that she did not see anyone with a gun. Lashelle Kent testified that Taylor shot Moore with a silver gun. Her testimony conflicted, to some extent, with her statement to the police. Sanders testified that he did not see the shooting. The State introduced his videotaped statement, in which Sanders identified Taylor as the person who shot Moore.

The jury convicted Taylor of first degree murder and possession of a firearm during the commission of a felony. Taylor was sentenced to life in prison plus 50 years. This appeal followed.

Discussion

Taylor argues that his conviction should be reversed because Sanders’ statement, which was a significant part of the State’s case, was inadmissible. Under 11 Del. C. § 3507, a witness’s out-of-court statement may not be admitted as affirmative evidence unless the statement is voluntary. A statement is involuntary if the totality of the circumstances demonstrate that the witness’s will was overborne.¹ This Court has recognized several factors that indicate a statement is involuntary: 1) failure to advise the witness of his constitutional rights²; 2) lies “about an important aspect of the case ... ”³; 3) threats that the authorities will take the witness’s child away⁴; 4) extended periods of detention without food⁵; and 5) extravagant promises or inducements.⁶

At the time of his interrogation, Sanders was 26 years old, unemployed and homeless. He was taken into custody as he got off of a bus. The police officer told him that he was being brought in on a domestic violence charge. At the station, Sanders was placed in an interrogation room, and Detective Matthew Hall started asking Sanders about the murder of Moore. Hall told Sanders that the police knew Sanders was on the street the night Moore was shot, but that the police did not believe Sanders pulled the trigger.

For more than two hours, Hall demanded that Sanders tell him who shot Moore, and Sanders denied that he knew. Hall explained to Sanders that, by fleeing with the others, Sanders appeared to have conspired with them and appeared to be guilty. Hall then left the room for a few minutes. When he returned, Hall handcuffed Sanders to Sanders’ chair, and told Sanders: “Here’s the deal. I just got off the phone with the A.G.’s Office and you’re being arrested.”⁷ Sanders immediately started crying and yelling, “I do not know, I do not know.”⁸ and “I can’t go to jail.”⁹ Hall agreed, saying, “You’ve got two boys to think about.”¹⁰ Sanders then asked, “What is it that you want me to say?”¹¹ Hall replied that he wanted Sanders to tell him the truth.

Sanders stopped crying and eventually agreed that he was on the block at the time of the shooting. When Sanders stopped providing information, Hall reminded him that Sanders had two boys to think about, and that, if he did not tell Hall who the killer was, the children “might be calling someone else Daddy”¹² for the rest of Sanders’ life. Over the next 10 minutes, Sanders told Hall what he saw. Sanders said that he heard a shot and turned to see Taylor with a towel over his hand. Sanders saw sparks coming from the towel as he heard more shots being fired.

The trial court viewed the videotaped statement and concluded that Sanders’ will had not been overborne.

I. Voluntariness of Sanders’ Statement

This Court generally defers to the trial court’s factual determination as to voluntariness.¹³ There are circumstances unique to this case, however, that require a different analysis. As always, the totality of the circumstances must be considered. And, it is settled law that the police may use tactics such as deceit, threats, and promises without necessarily rendering the witness’s statement involuntary.¹⁴ But in this case, Hall handcuffed Sanders and told him that he was being arrested. That was a lie, but Sanders obviously believed Hall, because Sanders started crying and screaming that he did not know anything and that he could not go to jail.

The legal issue is whether the § 3507 statement of the witness was voluntary.¹⁵ Since custodial interrogations are inherently coercive, any statement by a defendant in custody is presumptively involuntary in the absence of certain procedural safeguards.¹⁶

This venerated principle of law was established by the United States Supreme Court in Miranda¹⁷ in cases involving the custodial interrogations of suspects who are actually under arrest. In those situations, unless the procedural safeguards established by Miranda are adhered to, any statement by the accused cannot be admitted into evidence.

The principles and rationale for the holding in Miranda were recently reaffirmed by the United States Supreme Court in J.D.B. v. North Carolina:

Any police interview of an individual suspected of a crime has “coercive aspects to it.” Only those interrogations that occur while a suspect is in police custody, however, “heighte[n] the risk” that statements obtained are not the product of the suspect’s free choice.

By its very nature, custodial police interrogation entails “inherently compelling pressures.” Even for an adult, the physical and psychological isolation of custodial interrogation can “undermine the individual’s will to resist and ... compel him to speak where he would not otherwise do so freely.” Indeed, the pressure of custodial interrogation is so immense that it “can induce a frighteningly high percentage of people to confess to crimes they never committed.” Recognizing that the inherently coercive nature of custodial interrogation “blurs the line between voluntary and involuntary statements,” this Court in Miranda adopted a set of prophylactic measures designed to safeguard the constitutional guarantee against self-incrimination. Prior to questioning, a suspect “must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” And, if a suspect makes a statement during custodial interrogation, the burden is on the Government to show, as a “prerequisite]” to the statement’s admissibility as evidence in the Government’s case in chief, that the defendant “voluntarily, knowingly and intelligently” waived his rights.¹⁸

For those same reasons, we hold that Miranda’s procedural safeguards apply to the interrogation of a witness who is in custody and is told by the police that he is under arrest.

In this case, the interrogating police officer told the witness (falsely) that he was under arrest and handcuffed the witness to a chair in an interrogation room at the police station. The officer wanted the witness to believe he was under arrest for murder. The officer’s deception was successful. After the witness stopped crying, he made a statement to the officer that he had refused to make during the two hours of questioning that preceded the officer’s false representation that the witness was under arrest.

Although the witness was told and believed that he was under arrest, he was not afforded any of the procedural safeguards recognized in Miranda as necessary to mitigate the inherently coercive pressure of a custodial interrogation. Fundamental fairness and the orderly administration of justice require that custodial interrogations be treated consistently. Where the procedural safeguards of Miranda are not followed for a defendant who is actually under arrest, any incriminating statement is inadmissible. Where the procedural safeguards of Miranda are not followed for a witness who is falsely told, but actually believes, he is under arrest, constitutional consistency requires that any § 3507 statement that incriminates a third-party be inadmissible as well.

Absent uniform treatment for the custodial interrogation of both a defendant who is actually under arrest and a witness who believes he is under arrest, the evidentiary results are unfairly and inexplicably inconsistent. The defendant’s self-incriminating statement would be inadmissible, yet the § 3507 statement of the witness that incriminates a third-party would be admitted into evidence. That is not how the rule of law should or does operate under our constitutional democracy. In both situations, the custodial interrogations are inherently coercive and both types of statements are inadmissible if the procedural safeguards of Miranda are not followed. That must be so, since the concerns that animate Miranda are identical in both cases.

As the United States Supreme Court recently explained in “Miranda’s procedural safeguards exist precisely because the voluntariness test is an inadequate barrier when custodial interrogation is a stake.”¹⁹ “Unless adequate protective devices are employed to dispel the compulsion inherent in custodial surroundings, no statement obtained from the defendant can truly be the product of his free choice.”²⁰ The same rule of law must apply to the § 3507 statement of a witness that is the product of a custodial interrogation, where that witness is falsely told that he is under arrest and believes that deception.

II. Taylor’s Other Claims

Taylor also raises several other arguments. First, he contends that the trial court abused its discretion by allowing expert testimony on cell phone data mapping. The trial court conducted a DaubeH hearing, and concluded:

As I understand the process, what Mr. Daly has been asked to do is to ... review information obtained by Nextel relating to this particular cell phone number. That information, when matched to a key which is provided by Nextel, will give the latitude and longitude of the tower which was used when a call was made or received. And, either by using a map or a computer program, it is a simple, straight-forward thing to locate that tower on a map.... So I find his qualifications are more than ample to do this. Insofar as Daubert is concerned, the unrebutted testimony here is that this [Is] a recognized process, and is deemed reliable by the law enforcement community.... ²¹

The trial court’s findings are supported by the record and we find no abuse of discretion in allowing Daly’s expert testimony into evidence.

Taylor next argues that the trial court improperly commented on the evidence. First, he complains that the trial court should not have allowed Daly to correct his Powerpoint presentation. Daly had been told by Nextel that a “zero” on the call log meant that the cell phone was used for text messaging. He included that information in his Powerpoint presentation. After Daly testified, a Nextel employee testified that a zero means that there was a call hang up. In light of this discrepancy, the trial court allowed Daly to correct his Powerpoint presentation, subject to cross-examination. Taylor does not explain, and we cannot determine, how this series of events could amount to a “comment” on the evidence.

Second, Taylor contends that one of the trial court’s jury instructions was an improper comment on the evidence. Sanders and another witness testified that they did not want to be labeled “snitches.” Other witnesses also testified that they did not want to be in court giving testimony. The trial court decided, over Taylor’s objection, that it should give the following instruction:

The State contends that some of the witnesses have given testimony or made statements during their police interviews that they feared for their safety or for the safety of their loved ones. The State does not contend, and there is no evidence, that the defendant or anyone took any steps to threaten, intimidate or harm either the witnesses or their families. Thus, I instruct you that you may not consider any statements which might have been made by those witnesses in which they expressed fear for their safety or the safety of their families as evidence by itself of the defendant’s guilt. However, you may consider, if you choose to do so, those statements for another purpose. If you find that a witness made statements during an interview inconsistent with statements made during his or her testimony, you may consider, if you choose to do so, evidence of the witness’s fear of reprisal in determining which version of the facts told by the witness is likely true.

Taylor argues that this instruction imper-missibly highlighted one particular factor bearing on credibility. In addition, the instruction impermissibly supported the State’s argument that the witnesses’ statements to police were the accurate ones, and that the witnesses gave different testimony in court because they did not want to be snitches.

We agree with Taylor that the second part of the instruction could have been written in a more neutral way. Telling the jurors that they may consider the fear of reprisal when trying to reconcile inconsistencies, does suggest that the police statements are more likely the accurate ones. Although we find no reversible error, we suggest that when this case is retried, the trial court should reword this instruction, if it is given at all.

Finally, Taylor argues that the use of his nickname, “Murder,” was highly prejudicial. Taylor fails to mention that he agreed to an instruction, given before the start of trial, that explained Taylor’s nickname and warned the jury not to consider it as evidence of guilt. In addition, several witnesses only knew Taylor by his nickname. The use of the nickname, with the limiting instruction, was not plain error. That said, the nickname is prejudicial and it does not appear from this record that the State’s witnesses had to be allowed to use it instead of his given name. Those witnesses who only knew Taylor by his nickname could have been asked, in court, whether they recognized the defendant, without asking what name they knew him by. The questioning then could have proceeded using Taylor’s real name. Again, in the retrial, the court should make an effort to delete all references to Taylor’s nickname, if possible.

Conclusion

Based on the foregoing, the judgment of the Superior Court is reversed and this matter is remanded for a new trial. Jurisdiction is not retained.

1 . Baynard v. State, 518 A.2d 682, 690 (Del. 1986).

2 . Ibid.

3 . Ibid.

4 . Roth v. State, 788 A.2d 101, 108 (Del.2001); See, also, Lynumn v. State of Illinois, 372 U.S. 528, 534, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963).

5 . State v. Rooks, 401 A.2d 943, 948 (Del. 1979).

6 . Flowers, v. State, 858 A.2d 328, 330-31 (Del. 2004).

7 . Court Ex. 10.

8 . Ibid.

9 . Ibid.

10 . Ibid.

11 . Ibid.

12 . Ibid.

13 . Miller v. State, 1993 WL 307619 (Del. Supr.).

14 . Baynard v. State, supra.

15 . The fact that the § 3507 statement of the witness at issue was videotaped and available for review on appeal does not control our analysis of the voluntariness issue, as the dissenting opinion appears to suggest.

16 . The presumption can be overcome. If, for example, the State can show that the witness thought that the interrogator was only trying to scare him, and did not believe that he was being arrested, that would suffice.

17 . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

18 . J.D.B. v. North Carolina, — U.S.-, 131 S.Ct. 2394,-L.Ed.2d-(2011) (internal citations omitted).

19 .J.D.B. v. North Carolina, 131 S.Ct. at-(citing Miranda v. Arizona, 384 U.S. at 458, 86 S.Ct. 1602).

20 . Miranda v. Arizona, 384 U.S. at 458, 86 S.Ct. 1602.

21 . Appellant’s Appendix, A-98.