United States v. Robert Kelsey

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 4, 2018 Decided March 8, 2019
No. 16-3125
UNITED STATES OF AMERICA,
APPELLEE
v.
ROBERT KELSEY, ALSO KNOWN AS TAIWAN KELLSI,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:16-cr-00055-1)
Mary E. Davis, appointed by the court, argued the cause
and filed the briefs for appellant.
Christopher M. Davis, appointed by the court, entered an
appearance.
Lauren R. Bates, Assistant U.S. Attorney, argued the cause
for appellee. With her on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman and Michael T. Ambrosino,
Assistant U.S. Attorneys.
Before: HENDERSON and PILLARD, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
2
Opinion for the Court filed by Circuit Judge PILLARD.
PILLARD, Circuit Judge: A jury convicted Robert Kelsey
of transporting a minor, eleven-year-old S.H., with intent to
engage in criminal sexual activity, aggravated sexual abuse of
a child, and first-degree child sexual abuse with aggravating
circumstances. Kelsey challenges his conviction on three
grounds: First, he argues that the district court allowed a fact
witness to give expert testimony on DNA evidence without
having been qualified as an expert, which Kelsey contends
prejudicially prevented him from cross-examining the witness
about a history of testing errors at the District of Columbia
Department of Forensic Sciences. Second, he argues that the
photo array from which S.H. identified him was prejudicially
suggestive. And, third, Kelsey contends that the district court
erred in admitting statements Kelsey made to the police, which
he says were involuntary. For the following reasons, we
conclude that there was no improper expert testimony, that the
photo array was not impermissibly suggestive, and that
Kelsey’s statements were voluntary.
I.
Kelsey’s defense at trial, based primarily on cross-
examination of the government’s witnesses, was that he was
not the person who committed the sexual offenses against S.H.
The facts below are largely drawn from the unrebutted
testimony of prosecution witnesses. S.H. and Kelsey met via
Instagram. Kelsey told S.H. that his name was “Kevin” and
that he was nineteen years old. (He was actually twenty-six.)
S.H. told him her real name and age, and that she wanted to
have sex and get pregnant. Kelsey replied that he could get
her pregnant. Soon after, they made a plan to meet in person.
The morning after they made their plan, on July 25, 2014,
Kelsey drove to S.H.’s summer camp in Maryland and told a
3
counselor that he was S.H.’s cousin. When S.H. said she
recognized Kelsey as her cousin, the camp counselor let her
leave the camp with Kelsey, who drove S.H. in a black Jeep to
his father’s house in the District of Columbia. At the house,
Kelsey and S.H. went upstairs to a bedroom where Kelsey had
sexual intercourse with S.H. Kelsey then dropped S.H. back
at camp.
S.H.’s custodial father was at the camp when she returned,
and he told the camp to call the police. S.H. then explained to
Investigator Nicholas Collins of the Prince George’s County
Police Department what had happened. She said the man’s
name was Kevin, described him, and handed Collins her
cellphone. S.H. was then taken to the Prince George’s
hospital, where medical personnel used a sexual assault kit to
collect and preserve physical evidence from S.H.’s body.
Collins called “Kevin’s” number from S.H.’s phone and
Kelsey answered. At that point, Kelsey made the first of a
series of exculpatory statements suggesting that his cousin
“Kevin,” not he, was the person the officer was looking for.
Collins and Kelsey then had a series of brief phone
conversations over the course of the next day, during which
Kelsey said that he would ask Kevin to contact Collins. Five
days later, Kelsey told Collins over the phone that he had
“some information.” J.A. 423. Specifically, he said that he
had picked up a girl in Maryland for his cousin Kevin and
driven her to D.C. Kelsey, driving a black Jeep Cherokee, met
Collins in person to discuss the information Kelsey wanted to
report. They met at a 7-Eleven store and drove around, with
Officer Collins following in an unmarked car behind Kelsey’s
Jeep, to look for the place where Kelsey claimed to have
dropped off S.H. for Kevin and picked her up a few hours later.
Kelsey eventually identified a place about five blocks away
from his father’s house as the drop-off location. (S.H. later
4
identified from photographs a specific house as the place where
Kelsey had taken her, and the directory in Kelsey’s phone listed
that same address as his father’s.) The next week, Kelsey
repeated essentially the same story about “Kevin” to a friend
who knew both Kelsey and S.H. When that individual
testified at Kelsey’s trial, she said Kelsey seemed “[a] little
nervous [when he spoke to her], like he was . . . putting a story
together.” J.A. 564.
Five days after the sexual assault, S.H. identified Kelsey
from a photo array. Collins had interviewed S.H., who
described the perpetrator to him. At their first interview, on
the day that she met Kelsey, S.H. described him as black, with
light skin and tattoos all over his body, and estimated he was
nineteen or twenty years old. At the second interview (after
Collins had met Kelsey in person), Collins asked S.H. about
the perpetrator’s tattoos, and she told him that the perpetrator
had a tattoo on his ear. Based on those descriptions, Collins
selected six photos to show S.H. of “individuals of similar race,
age, sex, . . . facial features, facial hair, and skin tone,” one of
whom was Kelsey. Appellant’s Br. 21-22. A detective with
no knowledge of the case then showed S.H. the photo array to
see whether she recognized anyone as her assailant. S.H.
identified Kelsey, signed and dated the back of his photo, and
wrote “yes this is him.” J.A. 251. It took less than four
minutes for the officer to show S.H. the photographs and for
S.H. to identify the photograph of Kelsey.
Roughly two weeks after the assault, Kelsey gave a
recorded statement to the Metropolitan Police Department of
the District of Columbia at the police station. Detective
Nicholas Oliver had invited Kelsey there, asking him “if he
would be willing to come talk.” J.A. 264-67. Kelsey agreed
to go to the station to talk to Oliver; he arrived at the station on
his own in under an hour. Kelsey was not taken into custody
5
or put in any kind of restraints, and Detective Oliver
emphasized that the door to the interview room was open.
Kelsey kept all of his belongings, including his phone, with
him during the interview. Detective Oliver told him that he
was “free to leave at any time.” J.A. 93. Oliver also advised
Kelsey of his Miranda rights, both orally and in writing, and
emphasized that Kelsey was not under arrest. Kelsey then
signed a Miranda waiver form.
Oliver, aware that Kelsey had a lawyer, asked Kelsey if he
was “willing to talk to [Oliver] without” his lawyer present.
J.A. 93. Kelsey responded that he “would feel more better
with her being present.” Id. Oliver asked whether he was
“saying that [he] want[ed] to stop questioning,” to which
Kelsey replied that they could “still talk,” but that he would
feel “more comfortable” if his lawyer were there. Id. When
Oliver pressed Kelsey for clarification, Kelsey said that he
would “answer [Oliver’s] questions but certain questions
[he’d] rather for [his lawyer] to be around.” Id. At that point,
Oliver told Kelsey that “[i]f there [was] something [he didn’t]
want to answer, [to] stop it right then and there.” Id. Kelsey
proceeded to answer Oliver’s questions. Ten minutes later,
Kelsey’s lawyer called him on his cellphone and spoke to both
Kelsey and Detective Oliver. She told Oliver that Kelsey
wanted to leave and Oliver responded that he would “leave that
up to” Kelsey and that “[i]f he decides to leave, he’s free to
go.” Id. Kelsey did not leave and indeed resumed speaking
without any prompting from Oliver, reiterating that he had “no
problem helping.” Id. A few minutes later, his lawyer called
him back. Kelsey told her that he was “leaving the station
now,” spoke to Oliver for a few more minutes, and then left.
Id. Overall, the substance of Kelsey’s statement to Oliver was
consistent with what he had told Investigator Collins and the
friend who testified at trial—that he had driven his mother’s
Jeep Cherokee to pick up a girl and drop her off for “Kevin.”
6
Before trial, Kelsey moved to suppress his statements at
that interview as involuntary. He also moved to suppress the
photo-array identification and any in-court identification by
S.H. as unduly suggestive and unreliable. The district court
denied both motions.
The government used both the recorded statements and
photo identification at trial, as well as an in-court identification
of Kelsey by S.H. In addition, it presented DNA evidence
against Kelsey, seeking to show that Kelsey’s DNA matched
DNA taken from S.H.’s sexual assault kit. The government
introduced its DNA evidence through eight witnesses, two of
whom testified as experts, with the other six speaking to the
facts establishing the chain of custody. The key expert witness
was Hope Parker, an employee of Bode Technology, a private
laboratory, who compared Kelsey’s DNA with the male DNA
from S.H.’s sexual assault kit. Parker testified to her
conclusion that the DNA almost certainly belonged to Kelsey.
Shana Mills, one of the six DNA witnesses not proffered
as an expert, testified about processing the DNA swabs from
S.H.’s sexual assault kit at the Department of Forensic
Sciences. Mills performed the physical work of taking
cuttings from the swabs, placing them in test tubes, and loading
them into a machine called a genetic analyzer. The genetic
analyzer then produced electropherograms—charts that list the
alleles present at different locations of a length of DNA. The
information from an electropherogram can be analyzed by an
expert and compared with samples from known individuals to
identify whose DNA is present in an evidence sample. The
data that Mills generated was transmitted to the Bode lab,
where Parker performed her analysis. Mills also recorded her
work in her Report of Examination, which the government
provided to Kelsey during discovery.
7
When Mills was on the stand, the government asked her to
compare the information in her report to the information Parker
used in her analysis. The questioning apparently aimed to
show that the data that Mills produced from the assault kit
swabs was the same data that Parker then subjected to DNA
matching analysis. According to Mills, the work about which
she testified ended when she identified a male DNA profile in
the swabs from S.H.’s assault kit. She did not go on to
compare that male profile to any known sample—that task was
for Parker. After completing the work to pull from the sample
the data that Bode needed, Mills did run the male profile she
identified through CODIS (the Combined DNA Index System,
maintained by the FBI), where it matched with Kelsey’s DNA,
but that information was not shared with Bode, and neither side
sought to introduce testimony about that match.
Kelsey objected to Mills’ testimony, arguing that she was
testifying as an expert without having been qualified at trial to
do so. Specifically, Kelsey asked the court “to strike the
testimony of [Mills’] comparisons of her raw data to” the data
that Parker used for her analysis. J.A. 595. He also alleged
that there had been problems with the Department of Forensic
Sciences’ procedures for interpreting mixtures of different
DNA profiles, and sought to cross-examine Mills about those
problems. The government objected to the proposed line of
questioning, contending that there had never been problems
with the processes about which Mills had testified.
The district court engaged in a lengthy colloquy out of the
jury’s hearing with counsel on both the expert-qualification
and cross-examination issues. During that colloquy, Michael
Ambrosino, Special Counsel for DNA and Forensic Evidence
Litigation at the United States Attorney’s Office,
acknowledged that there had been past problems with the way
that the District of Columbia’s Department of Forensic
8
Sciences had performed “mixture analysis”—the process of
isolating and identifying individual DNA profiles when more
than one person’s DNA is present in a sample. But Mills was
testifying about her “bench work”—the preliminary physical
processing of DNA samples—not mixture analysis. When the
United States Attorney’s Office learned of the Department of
Forensic Sciences’ mixture-analysis problems, it had hired
outside DNA experts to review their bench work as well as
their mixture analyses. Those experts concluded that there
were no problems with the lab’s bench work. As a result, the
United States Attorney’s Office continued to rely on the
Department of Forensic Sciences to perform bench work, but
contracted out mixture analysis to companies such as Bode
Technology.
Crediting Ambrosino’s proffer, the district court held that
Mills permissibly testified as a fact witness about the bench
work she performed on the sample before Bode Technology
did the DNA analysis. In addition, it held that the defense’s
proposed line of inquiry about the Department of Forensic
Sciences’ historical problems with mixture analysis was
irrelevant, because Mills testified about her bench work,
whereas Bode Technology—not Mills or anyone at the
Department of Forensic Sciences—performed the mixture
analysis introduced at trial through expert witness testimony.
Kelsey did not testify and called only one witness—
Detective Oliver—who testified to his investigatory efforts,
and confirmed that he videotaped his interview of Kelsey as
part of his investigation. After deliberating for approximately
forty minutes, the jury convicted Kelsey of transportation of a
minor with intent to engage in criminal sexual activity, 18
U.S.C. § 2423(a); aggravated sexual abuse of a child, id.
§ 2241(c); and first-degree child sexual abuse with aggravating
9
circumstances, D.C. Code §§ 22-3008, 22-3020(a)(1). This
appeal followed.
II.
A.
The district court did not err in allowing Mills to testify
about her lab work without being qualified as an expert, nor did
it err in preventing Kelsey from cross-examining Mills about
the Department of Forensic Sciences’ past problems with
mixture analysis. Even if its rulings on those points were
erroneous, the errors would have been harmless.
1.
The district court’s decision to admit or exclude expert
testimony is reviewed for abuse of discretion. Kumho Tire
Co. v. Carmichael, 526 U.S. 137, 152 (1999); see also United
States v. Machado-Erazo, 901 F.3d 326, 336 (D.C. Cir. 2018).
A lay witness may testify to her opinions only insofar as they
are “(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or
to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of
Rule 702.” Fed. R. Evid. 701. When a party wishes to
introduce expert testimony, it must qualify the witness by
establishing “the expert’s scientific, technical, or other
specialized knowledge.” Fed. R. Evid. 702. The party also
must show that “the testimony is based on sufficient facts or
data; . . . [that it] is the product of reliable principles and
methods; and . . . [that] the expert has reliably applied the
principles and methods to the facts of the case.” Id.; see also
Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 589
(1993).
10
The district court did not abuse its discretion in allowing
Mills to testify as a lay witness. At trial, Kelsey’s lawyer
argued that Mills should not be permitted to testify about how
she “looked at her raw data and compared it to the data of the
other people.” J.A. 594. The government resisted this
characterization of Mills’ testimony, arguing that Mills was
simply confirming—by comparing the data that she produced
to the data that Bode Technology used—that what Bode used
was the raw data she had provided. In other words, Mills
testified that what Bode “received was the same [as what Mills
had] produced.” J.A. 636. The record fully supports the
district court’s conclusion that Mills testified as one of multiple
lay witnesses who accounted for the chain of custody and
physical processing of the DNA evidence, as distinct from its
expert analysis.
Mills tested three swabs from S.H.’s sexual assault kit for
the presence of male DNA. The raw data, in the form of
electropherograms produced by the genetic analyzer, showed
that there was a male DNA profile in the sexual assault kit
samples. Mills then forwarded that data to Bode. The United
States Attorney’s Office’s general instructions to the chief of
the case work unit at Bode directed Bode to then scrub any
interpretations or preliminary conclusions from such material
before it was sent to one of Bode’s analysts, “so that [the
analyst] would be interpreting the data 100 percent on their
own.” J.A. 630-31. “[T]he only thing that went before the
analyst was the raw data.” J.A. 631. No information was
supplied to Hope Parker, the Bode analyst, that there was a
male profile in the DNA, for example, or that the male profile
had matched with a person in the CODIS system.
Mills did testify about identifying a male profile in the
DNA sample from S.H.’s sexual assault kit—and that required
a determination whether more than one person’s DNA was
11
present in the sample. But that testimony was not presented
to show that any DNA in the sample belonged to Kelsey—or
to anyone in particular. Rather, it verified that there was some
electropherogram data that was susceptible of mixture analysis
and so should be sent to Bode for that purpose. Bode’s analyst
then did the analysis on the Department of Forensic Sciences’
raw data, concluding independently that there was a male
profile in the sample and—ultimately—that the male profile
matched the sample separately taken from Kelsey. Because
Mills was testifying on a factual matter within her own
experience—the raw data she produced and that it was the
same data as was presented to the outside laboratory—the
district court did not abuse its discretion in allowing her to
testify as a fact witness, not an expert.
Even if it was error to admit Mills’ testimony without
qualifying her as an expert, the error was harmless. Non-
constitutional error is harmful only if it has a “substantial and
injurious effect or influence in determining the jury’s verdict.”
Kotteakos v. United States, 328 U.S. 750, 776 (1946); accord
Fed. R. Crim. P. 52(a). If a lay witness could have been
qualified as an expert had the court so required, that tends to
support the conclusion that it was harmless to allow her to
testify as a lay witness, especially when the other evidence is
overwhelming. United States v. Smith, 640 F.3d 358, 366
(D.C. Cir. 2011). Kelsey provided no reason, either at trial or
on appeal, why Mills could not have qualified as an expert.
Indeed, she presumably could have been, as at the time of her
testimony she had already testified as an expert in over thirty-
five cases. The only harm Kelsey alleges is that, by allowing
Mills to testify without qualifying her as an expert witness, the
court prevented him from cross-examining her on the
Department of Forensic Sciences’ laboratory’s recent history
of reportedly deficient mixture analyses. But the district
court’s decision not to permit cross-examination on that topic
12
did not hinge on whether Mills testified as an expert. The
district court understood that whether Mills could give her
testimony as a layperson or needed to be qualified as an expert
was a “different issue” from whether there were any
laboratory-specific quality concerns about the type of work
about which Mills was testifying. J.A. 637. In other words,
the district court’s decision on the cross-examination issue was
independent of its decision that Mills gave lay rather than
expert testimony—meaning that the inability to cross-examine
Mills about the laboratory cannot be a “harm” caused by the
district court’s expert-testimony decision.
2.
The district court’s decision to preclude a line of inquiry
on cross-examination is also reviewed for abuse of discretion.
United States v. Vega, 826 F.3d 514, 542 (D.C. Cir. 2016) (per
curiam).
The district court did not abuse its discretion in preventing
Kelsey from cross-examining Mills on the Department of
Forensic Sciences’ mixture-analysis problems. The district
court—after hearing a lengthy proffer from the United States
Attorney’s Office—concluded that any such problems were
irrelevant to how the jury might weigh and credit Mills’
testimony on direct examination. Testimony confirmed that
the bench work in this case predated the problems with mixture
analysis in the District’s lab. The district court found that “the
evidence clearly shows that there ultimately were no concerns
about the quality of work that the DC lab was doing in
reference to what [Mills] testified about,” and “the decision to
send the work to the private lab had nothing to do with” the
lab’s bench work. J.A. 637.
13
The district court further ruled that, if it had permitted the
defense’s requested cross-examination, the court would also
have permitted the government to present the experts who had
analyzed the Department of Forensic Sciences’ bench work
and found it to be acceptable and entirely independent of the
kinds of problems the defense sought to probe, and would have
permitted Mills to testify about the interpretation she had
performed (but had not testified about), which corroborated
Bode’s interpretation. In other words, with the context the
district court said it would have allowed the government to
elicit, the ultimate result of the cross-examination Kelsey’s
counsel sought would not, on balance, have been uniformly
positive for Kelsey, but might in fact have had a negative effect
on his defense.
There was, in sum, no error and in any event no prejudice
to Kelsey from the district court’s allowance of Mills’
testimony.
B.
The district court’s decision to admit the photo
identification was not error and, even if it were, the ample
independent evidence identifying Kelsey rendered any such
error harmless. A court assessing a challenge to identification
evidence under the Due Process Clause must perform a two-
step analysis. United States v. Rattler, 475 F.3d 408, 411
(D.C. Cir. 2007). First, the court must determine “whether the
identification procedure ‘was impermissibly suggestive.’” Id.
(quoting United States v. Washington, 12 F.3d 1128, 1134
(D.C. Cir. 1994)). If the procedure was impermissibly
suggestive, the court must decide “whether, under the totality
of the circumstances,” the identification was nonetheless
“sufficiently reliable to preclude ‘a very substantial likelihood
of irreparable misidentification.’” Id. (quoting Manson v.
14
Brathwaite, 432 U.S. 98, 116 (1977)). The key factors at the
second step are “the opportunity of the witness to view the
criminal at the time of the crime, the witness’ degree of
attention, the accuracy of [her] prior description of the
criminal, the level of certainty demonstrated at the
confrontation, and the time between the crime and the
confrontation.” Id. (quoting Manson, 432 U.S. at 114). The
court must weigh these factors against “the corrupting effect of
the suggestive identification itself.” Id. (quoting Manson, 432
U.S. at 114) (emphasis omitted). “We review the district
court’s legal conclusions de novo and its findings of fact for
clear error.” Id.
The photo array was not impermissibly suggestive. The
only characteristic that Kelsey claims was suggestive is that his
was the only photo showing someone with an ear tattoo;
otherwise, the defense agreed, the individuals depicted in the
photos were “very, very similar.” J.A. 255. But, as the
district court observed, Kelsey’s ear tattoo is not clearly
discernable in the photo shown to S.H. “[W]hile there is some
discoloration in the left ear,” the court said, “it’s not clear . . .
exactly what the discoloration is.” J.A. 259. According to
the district court, it could have been “just a birth mark or . . . a
shadow.” Id. Of course, if only one photo in a photo array
has a characteristic distinctive to the defendant, then the array
may well be impermissibly suggestive. That is not the
situation here, where the distinctive tattoo was barely visible in
the photo. Nor did any other aspect of the photo array single
out Kelsey. Not only did the array feature six similar-looking
individuals, it was administered by someone who did not know
the “correct” result and so was in no position to influence S.H.
to choose Kelsey over anyone else.
Even assuming the photo array was impermissibly
suggestive, the circumstances of S.H.’s identification of
15
Kelsey’s photograph were sufficiently reliable to avoid any
“substantial likelihood of irreparable misidentification.”
Rattler, 475 F.3d at 411 (quoting Manson, 432 U.S. at 116);
see Neil v. Biggers, 409 U.S. 188, 199-200 (1972). Kelsey
says he disagrees, but provides no argument as to why. S.H.
had plenty of opportunity to view Kelsey, both on the drive to
and from his father’s house and at the house itself, where the
sexual assault occurred. S.H. and Kelsey were together for
several hours during the daylight, under circumstances in
which S.H. would naturally have been paying attention to
Kelsey and his appearance. Moreover, when presented with
the photo array very shortly after she had been with Kelsey, she
identified him quickly and with apparent confidence. In
response to these indicia of reliability, the defense argues only
that S.H.’s youth and the stressful nature of the situation
rendered her identification unreliable. There is no basis in this
record, however, to conclude that those factors undermined
S.H.’s ability to correctly identify Kelsey as the man she met
online who picked her up at her summer camp, drove her for
45 minutes each way in daylight to and from his father’s house,
and took off most of his clothes to have intercourse with her
repeatedly while there.
Even if admitting the photo-array evidence had been error,
the totality of the other identification evidence presented
against Kelsey would have rendered any error in the photo
array harmless beyond a reasonable doubt. See United States
v. Washington, 353 F.3d 42, 45 (D.C. Cir. 2004). Kelsey
argues that the error “was not harmless,” Appellant’s Br. 24,
but provides no argument as to why. And in fact there was
significant evidence corroborating the photo-array
identification. The DNA evidence, for example, strongly
supported the conclusion that Kelsey was the perpetrator.
Other evidence, like records showing that S.H. called Kelsey’s
phone, further confirmed that conclusion. In light of
16
overwhelming evidence identifying Kelsey as the perpetrator,
erroneously admitting the photo-array identification would
have been harmless.
C.
The district court also permissibly admitted the video
recording of Kelsey’s voluntary statement to the police. A
defendant’s statement may only be admitted at trial to prove
his guilt if the statement was voluntarily made. See Dickerson
v. United States, 530 U.S. 428, 434 (2000). The burden is on
the government to establish voluntariness by a preponderance
of the evidence. Lego v. Twomey, 404 U.S. 477, 489 (1972).
To be voluntary, a statement cannot have been the product of
governmental coercion, with coerciveness assessed in light of
all the circumstances. Dickerson, 530 U.S. at 434 (citing
Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)).
Relevant factors include, without limitation, the defendant’s
“age and education, the length of the detention, whether the
defendant was advised of his rights, and the nature of the
questioning.” United States v. Murdock, 667 F.3d 1302,
1305-06 (D.C. Cir. 2012). A waiver of Miranda rights is
“highly probative” of the voluntariness of subsequent
statements. Oregon v. Elstad, 470 U.S. 298, 318 (1985).
The district court correctly found that Kelsey’s recorded
statement was voluntary. His only argument that it was not is
that the detective did not stop questioning Kelsey after he said
he would feel better with his lawyer present. On this record,
that was not enough to render his ensuing statements
involuntary. The interview with Detective Oliver was
videotaped. Immediately after Kelsey made the comment
about his lawyer, the videotape shows that the detective asked
Kelsey for clarification as to whether he wanted to continue
speaking. After Kelsey said he was comfortable answering
17
some questions but not others without his lawyer present, the
detective told him that “[i]f there [was] something [he didn’t]
want to answer, [to] stop it right then and there.” J.A. 93.
Moreover, nothing else about the interview could be
considered coercive. The detective was not the least bit
aggressive in content, tone, or body language. Kelsey’s own
attorney even described the officer “as passive and as polite
and nonaggressive as possible.” J.A. 282. Kelsey came to
the interview of his own volition, was not restrained in any
way, and Detective Oliver told him he was free to go at any
time. Because Kelsey was not in custody, he was not required
to be informed of his Miranda rights, but Oliver read him his
rights anyway and Kelsey signed a written waiver. Kelsey
was allowed to keep his phone and to use it, taking two calls
from his attorney over the course of the interview. When
Kelsey did decide to wrap up the conversation and leave, the
officers did not interfere or seek to dissuade him. The
interview itself was less than half an hour long and Kelsey
appeared alert and coherent throughout.
* * *
For the reasons discussed above, we affirm the district
court’s judgment of conviction.
So ordered.