Lejeezan Toudle v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 15-CF-1350
LEJEEZAN TOUDLE, APPELLANT,
V.
UNITED STATES, APPELLEE.
Appeal from the Superior Court
of the District of Columbia
(CF2-7876-15)
(Hon. Todd E. Edelman, Trial Judge)
(Argued April 12, 2017 Decided July 5, 2018)
Benjamin Miller, Public Defender Service, with whom Samia Fam and
Mikel-Meredith Weidman, Public Defender Service, were on the brief, for
appellant.
Sharon A. Sprague, Assistant United States Attorney, with whom Channing
D. Phillips, United States Attorney at the time the brief was filed, and Elizabeth
Trosman, Suzanne Grealy Curt, and Tamika Griffin Moses, Assistant United States
Attorneys, were on the brief, for appellee.
Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, Associate Judge,
and RUIZ, Senior Judge.
THOMPSON, Associate Judge: A jury convicted appellant Lejeezan Toudle
of unlawful possession of a firearm (felon in possession); carrying a pistol without
a license outside a home or business (“CPWL”); and possession of an unregistered
2
firearm. In this direct appeal, appellant challenges the trial court’s denial of his
motion to suppress statements he made during his post-arrest custodial
interrogation. He primarily argues that statements his interrogators made during
his interview subverted the advice they had earlier given him about his Miranda
rights,1 invalidated the waiver he had made of those rights, and resulted in a
confession that was inadmissible. He also contends that the investigators’ tactics
rendered his confession involuntary. Although we agree that improper statements
by an interrogator after a suspect has heard, understood, and waived his Miranda
rights may, in the totality of circumstances, invalidate the waiver prospectively, we
are persuaded that this is not what occurred in this case.2 We are also satisfied that
appellant’s confession was voluntary. Accordingly, we affirm.
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
The Supreme Court explained in Miranda that “[i]f [an] interrogation
continues without the presence of an attorney and a statement is taken, a heavy
burden rests on the government to demonstrate that the defendant knowingly and
intelligently waived his privilege against self-incrimination and his right to
retained or appointed counsel.” Id. at 475. We assume without deciding that the
government also bears a heavy burden to show that a Miranda waiver was not
vitiated by interrogators’ conduct. “[T]he burden is [also] on the government to
prove by a preponderance of the evidence that a defendant’s statements were made
‘freely, voluntarily, and without compulsion or inducement of any sort.’”
In re J.F., 987 A.2d 1168, 1177 (D.C. 2010) (quoting Haynes v. Washington, 373
U.S. 503 (1963)).
3
I. Background
The relevant facts are as follows. In the afternoon of June 9, 2014,
Metropolitan Police Department (“MPD”) officers responded to a “look[-]out for
an individual who was possibly carrying a firearm” at 16th Street and Kalorama
Road, N.W. Upon arriving at a location in the 2400 block of 16th Street, N.W.,
one of the officers observed appellant, who fit the look-out description, walking
northbound on 16th Street. As the officers, who were in uniform and driving a
scout car, parked and began to exit the car, appellant noticed them, and he fled
before they had a chance to speak with him. The officers followed on foot.
During the chase, appellant turned into a parking lot and stopped at the rear
of a vehicle, where an officer who had caught up with him saw appellant “ducking
down almost to conceal himself . . . .” The officer testified to seeing appellant
“move his arm . . . away from [his] body and towards the [vehicle]” and then
hearing “the sound of a metal object hitting the ground.” 3 Appellant fled again,
this time tripping and falling shortly upon taking flight. The officers apprehended
and detained appellant and, upon returning to where the vehicle was parked, found
3
No other witness testified to seeing appellant with a gun, and the only
fingerprints found on the gun belonged to someone else.
4
a firearm beneath the vehicle. The officers then arrested appellant for possession
of the firearm.
At the police station, Investigators Elias Danho 4 and James Gamble
interviewed appellant. The video recording of that interview, which we have
reviewed, shows appellant arriving into a small room, where the investigators undo
his handcuffs and chain his feet to the floor. The substantive interview began with
Investigator Gamble telling appellant:
[D]on’t say anything yet, but you’re looking at a felon in
possession of a firearm charge . . . . So today, because
you’re a felon, it’s a felon in possession of a firearm. It’s
a little more serious . . . . So this is your chance to kind of
roll me through what’s going, what happened out
there . . . . So let me read you your rights, you think
about . . . what we gonna talk about and then you let me
know what we’re gonna do[,] okay?
Appellant nodded.
Thereafter, Investigator Gamble read appellant his Miranda rights from a
form as appellant, looking at the form, followed along. Once he finished reading,
Gamble asked appellant whether he had any questions (a question appellant
4
The interview transcript mistakenly identifies Investigator Danho as
Investigator “Daniel.”
5
answered by “shak[ing his] head no”) and whether he understood his rights.
Appellant responded that he did. When Investigator Gamble then asked appellant
whether he “wish[ed] to answer any questions,” and appellant responded, “No,”
Gamble stated, “All right. That’s it then.”
As the investigators begin gathering their materials to leave the room,
appellant inquired, “How I got charged with a gun?” Gamble responded, “Well[,]
I’m not gonna answer your questions if you’re not gonna answer mine[].”
Appellant replied, “I mean I’ll answer questions. I ain’t got no problems
answering no questions.” Gamble then retrieved a new Miranda form, reread
appellant his rights, and asked the required questions again. This time, appellant
agreed to answer questions outside the presence of an attorney.
The investigators then questioned appellant over a period of about an hour
and fifteen minutes (interrupting the interview at one point after appellant said that
he needed to use the restroom). The investigators began by asking appellant to
explain “why [he] started running” when officers arrived. Appellant first said that
he did not know that the men who approached him were officers, even though they
were in uniform. When Investigator Gamble again asked why appellant had run,
appellant eventually explained that he and the man he was with when officers
6
arrived were in the area because that man, whom he did not really know, had asked
appellant to give him a ride to an apartment building there. Appellant said that he
had no idea what the other man was planning to do at the building. Appellant
continued, “So then — so we couldn’t get in the building . . . . So when we start
walking back off[,] he was just like, man run. I don’t know what he had did.
When the police had pulled up[,] and he was like run, I just ran. That was it.”
When Investigator Gamble told appellant that the other officers had reported
that appellant had a gun on him, appellant denied that he had a gun (saying instead,
“I had a knife on me, man.”). In response, the investigators told appellant that his
denials were “not gonna cut it.” Appellant responded, “I already know it ain’t
gonna cut it right here.” Investigator Gamble urged appellant to provide “a
reason” why he had the gun, such as “someone’s out for me,” suggesting that
“maybe they can work with that.” Gamble told appellant that if he were to go “in
front of th[e] judge and say, I didn’t have a gun on me, . . . they’re gonna look at
[appellant’s prior convictions for] armed robbery, previous arrest with the gun,
[and the] officer saying [appellant] had the gun,” and appellant would be “done.
Right?” Appellant agreed, saying “Um hmm.” Appellant also agreed with
Gamble’s observation that the gun made it look like he was “there about to rob
7
somebody again” and acknowledged that “[w]ith my background[,] [the judge or
jury] gonna believe [what the officers have to say].”
Throughout the interview, Gamble suggested that appellant’s possession of
the gun had already been established, stating at one point, “[W]e don’t really need
to talk. Because from what they’re telling me[,] they got you.” Gamble further
told appellant, “I’m not even trying to get you to say, yeah[,] I had a gun, because
we know you had a gun. I’m trying to figure out why you had a gun.” Gamble
told appellant that the investigators “need[ed] to hear a reason,” such as that
appellant had “an ex-girlfriend . . . who [had] threatened” him, or that appellant’s
friend “handed [him] a gun” and “said hold this for a second,” or that appellant
“needed a gun [be]cause he thought [other people] were gonna kill him . . . . [or
that] [t]hey might even go kill his grandma . . . .”
The investigators also told appellant that this was his chance to “lessen the
damage” by informing them of the reason for his possession of the gun.
Investigator Gamble told appellant that if the person to whom he had given a ride
“did something wrong up in that apartment[,] you’re facing that too.”
8
When appellant continued to deny possession of the gun (he asserts that he
did so “twenty times”), Gamble finally stated, “All right[,] man. I mean, we don’t
want to keep going round and round with you, but you got — this is it. I don’t
think we have much more. So you sure? You don’t want to go over this story one
more time from the beginning?” This time — just after telling Investigator Danho
(who had stood after telling appellant that the investigators would “give [him] a
few minutes”) to “sit down” again — appellant confessed. Appellant told the
investigators that he and the man to whom he had given a ride went to the building
to “sell the gun to somebody,” 5 and that because “the [other man’s] shirt . . . was
too small” or “too short” to conceal the gun, appellant “held the gun” (“just
grabbed [the gun] and tucked it” in his jeans) for the other man. Appellant said
that the gun had a “wood handle” and stated that the gun must have fallen out of
his pants when he tripped and fell during his flight from the officers. Shortly after
appellant made that statement (at approximately 6:43 p.m.), the interview ended.
5
Specifically, appellant stated, “He told me we was gonna go up there and
sell the gun to somebody. So, that’s what we was doing.”
9
II. Appellants Contentions and the Standard of Review
Appellant contends that the trial court erred in ruling that his confession was
admissible and in denying his motion to suppress. He asserts first that “when
police administer proper Miranda warnings and secure a valid waiver . . . but then
contradict or undermine the warning, any subsequent statement is inadmissible,”
because “a suspect who is misinformed about the consequences of foregoing his
right[s] . . . cannot have knowingly, intelligently, and voluntarily waived that
right . . . .” He argues that this is what happened here: that statements by
Investigators Gamble and Danho contradicted and undermined the Miranda
warning, rendering appellant’s prior waiver ineffective with respect to the
statements he made toward the close of the interview. Appellant also argues that
the interrogators’ tactics rendered his confession coerced and involuntary.
The facts of what occurred during the interrogation, captured on video and
transcript, are not in dispute. Appellant’s claims raise entirely legal issues, as to
which our review is de novo. See Dorsey v. United States, 60 A.3d 1171, 1190
(D.C. 2013) (en banc) (“[O]ur review of the trial court’s legal conclusions is de
novo.”); see also id. at 1190 (“[W]hether [the defendant] validly waived his Fifth
10
Amendment rights and voluntarily confessed” “is a legal question subject to our de
novo examination.”).
III. Analysis
“The rights expressed in the Miranda warning pertain throughout the
interrogation.” Lee v. State, 12 A.3d 1238, 1246 (Md. 2011); see also Berghuis v.
Thompkins, 560 U.S. 370, 388 (2010) (explaining that the interrogation process
“provides the suspect with additional information that can put his or her decision to
waive, or not to invoke, into perspective”). Thus, where a suspect says that he will
no longer talk and that he wants a lawyer, Miranda requires the authorities to stop
the interrogation cold, even after initially obtaining a valid waiver. See 560 U.S. at
388 (“If the right to counsel or the right to remain silent is invoked at any point
during questioning, further interrogation must cease.”). “[T]he individual’s right to
choose between silence and speech [must] remain[] unfettered throughout the
interrogation process.” Miranda, 384 U.S. at 469. This court and others have
recognized that this means that “the interrogator may not say or do something
during the ensuing interrogation that subverts th[e] [Miranda] warnings and
[prospectively] vitiates the suspect’s earlier waiver by rendering it unknowing,
involuntary, or both.” Lee, 12 A.3d at 1241, 1250–51 (holding that an officer’s
11
statement that the interrogation is “between you and me” subverted the Miranda
warning that any statement the suspect makes “can and will be used against” him,
“rendering in violation of Miranda all statements the suspect thereafter made
during that interrogation”).6 This court found a vitiation of a prior waiver in Di
Giovanni v. United States, 810 A.2d 887 (D.C. 2002). The opinion in that case
recounts that when suspect Di Giovanni asked the police sergeant “whether he
needed a lawyer at that point in time[,]” the sergeant “responded that he would
need one later, but that at that time he did not think Di Giovanni needed one” and
that “it would be best if [Di Giovanni] told [his] side of the story.” Id. at 890. We
concluded that “in the totality of the circumstances, [the sergeant’s]
embellishments and directives that Di Giovanni didn’t need a lawyer vitiated the
validity of his waiver.” Id. at 894.
6
See also, e.g., Moran v. Burbine, 475 U.S. 412, 422-23 (1986) (for a
waiver to be valid, the suspect must be “aware of the State’s intention to use his
statements to secure a conviction”); Hart v. Attorney Gen. of Fla., 323 F.3d 884,
894-95 (11th Cir. 2003) (“Telling [the suspect] that ‘honesty wouldn’t hurt him’
contradicted the Miranda warning” and rendered his waiver “not voluntary,
knowing, and intelligent as required by Miranda . . . .”); Hopkins v. Cockrell, 325
F.3d 579, 585 (5th Cir. 2003) (“An officer cannot read the defendant his Miranda
warnings and then turn around and tell him that despite those warnings, what the
defendant tells the officer will be confidential and still use the resultant confession
against the defendant.”).
12
Here, similarly, we agree with appellant’s argument that when an
interrogator or interrogators make statements during a post-waiver interrogation
that are contrary to what the suspect was told when he was read his Miranda rights
and agreed to talk to the police without counsel, those statements may, in the
totality of the circumstances, effectively nullify the waiver and render inadmissible
any statements the suspect makes from that point on. The issue we confront is
whether, in the totality of circumstances, that result ensued from appellant’s
custodial interrogation by Investigators Gamble and Danho. The totality of the
circumstances includes, inter alia, a suspect’s “prior experience with the legal
system, evidence of coercion or trickery, cognitive ability . . . [, and the] delay
between arrest and statement.” Robinson v. United States, 928 A.2d 717, 725
(D.C. 2007).
Appellant points to several statements made by the investigators that he
contends undermined the Miranda warnings and vitiated his waiver. Below, we
consider the statements in the context of the totality of circumstances to determine
whether any of the statements, by themselves or in combination, had that effect and
rendered appellant’s waiver ineffective.
13
A. Whether appellant’s Miranda waiver was vitiated
1. Appellant’s background and the interrogation conditions
The record indicates that at the time of his interrogation, appellant was
thirty-one-years-old, had a criminal history that included convictions for robbery
and CPWL, and, as he told the investigators during the interrogation, had “been
locked up before” and was “familiar with the system.” Prior to the interrogation,
appellant had not “been drinking or smok[ing] anything.” After entering the
interview room, appellant placed his arms inside the torso section of his short-
sleeved T-shirt (as if for warmth) and held them there for most of the interview,
but seemed relaxed 7 and exhibited no signs of physical or mental distress during
the interview. 8 Officers had encountered and arrested appellant at approximately
2:42 p.m., and Investigators Danho and Gamble began interviewing appellant at
approximately 5:28 p.m. the same day, ending the interview approximately one
hour and fifteen minutes later, at 6:43 p.m. Several times during the interview —
7
During the interview, Investigator Gamble was generally leaned back in
his chair, also exhibiting a relaxed demeanor, and Investigator Danho was seated in
an adjacent chair, with one leg crossed over the other. He, too, appeared relaxed.
8
Although appellant stated at the end of his interrogation that he was
having trouble breathing (and the investigators told him they would get him an
ambulance if he needed one), he exhibited no signs of physical distress while in the
interrogation room. Prior to the interview, appellant was taken to the hospital,
where, according to appellant, the doctors informed him that he had not sustained
any injuries to his back.
14
including just before he confessed — appellant took long pauses before answering
the interrogators’ questions, apparently taking his time to think through the
implications of his decision about what to say and whether to answer the
investigators’ questions (as if performing his “own balancing of competing
considerations,” State v. Owens, 643 N.W.2d 735, 751-52 (S.D. 2002)).
Throughout the interview, the investigators never raised their voices, and they
accommodated appellant’s request to use the bathroom. Appellant was informed
that he was “under arrest” and was read his Miranda rights (twice), and he told the
investigators, “I understand my rights, man.”
We can discern nothing in the foregoing context and circumstances that
gives us concern that appellant did not understand his rights at the time he
confessed. We now go on to consider the investigators’ statements and appellant’s
arguments based on them.
2. Statements that appellant contends disparaged his
right to have counsel present during the interrogation
Appellant argues that the interrogators subverted the Miranda warning by
disparaging his right to counsel. He focuses on the following statements by
Investigator Gamble:
15
If you get to court and your defense attorney stands up
there, who they’re not gonna believe anyway. He says
well, someone was threatening his life. He needed a gun
‘cause he thought they were gonna kill him. They —
they said they were gonna kill him. They might even go
kill his grandma. They not gonna believe it then. At that
point[,] it’s too far gone.
Appellant variously characterizes those remarks as “a ‘directive that [he] didn’t
need a lawyer,’ and that he would be better off speaking right then without
counsel”; as advice “that he would put himself at risk if he waited to talk to his
attorney”; as a “‘one-sided, unauthorized legal opinion’ that [he] should not
‘remain silent and exercise his right to counsel’”; as a warning that “‘invoking the
right to counsel would come at a price’”; and as statements that told appellant that
“reliance on an attorney would be futile.” Appellant contends that through these
remarks, the investigators “methodically undermined” the Miranda rights of which
he had been advised. He asserts that the investigators’ conduct was geared toward
making him believe that “relying on an attorney . . . would be a grave mistake.”
We do not agree that the investigators disparaged the right to counsel or that
their statements otherwise contravened “the principles the Miranda rights were
designed to protect.” Miranda is “concern[ed] . . . primarily with th[e]
interrogation atmosphere and the evils it can bring.” Miranda, 384 U.S. at 456.
16
The reading of a suspect’s Miranda rights is designed to combat the pressures of
in-custody interrogation, so as “to permit a full opportunity to exercise the [Fifth
Amendment] privilege against self-incrimination.” Id. at 467. The Miranda Court
also recognized, however, that “[t]he circumstances surrounding in-custody
interrogation can operate very quickly to overbear the will of one merely made
aware of his privilege by his interrogators.” Id. at 469. The Court therefore
decreed that “the right to have counsel present at the interrogation is indispensable
to the protection of the Fifth Amendment privilege . . . .” Id. at 469 (emphasis
added). Thus, the right to counsel that Miranda protects is the “right to consult
with counsel prior to questioning[] [and] to have counsel present during any
questioning if the defendant so desires.” Id. at 470.
Here, the investigators’ challenged statements concerned the effectiveness of
the arguments that might be made by the attorney who would be appellant’s trial
counsel (pursuant to his Sixth Amendment right to counsel). The investigators’
statements were to the effect that, at trial, the fact-finder would be unlikely to
believe a gun-possession-in-self-defense theory mentioned by counsel for the first
time during trial, after appellant, in answering the interrogators’ questions, had
17
denied having a gun at all.9 The investigators did not, as appellant’s argument
implies, suggest to appellant that it would be a “grave mistake” to rely on an
attorney during interrogation or that appellant would do better without counsel
during interrogation. That fact distinguishes this case from Collazo v. Estelle, 940
F.2d 411 (9th Cir. 1991) (en banc), on which appellant relies. Collazo refused “to
waive [his Miranda rights], asking instead to talk to a lawyer,” making him “a
suspect who . . . indicated his inability to cope with the pressures of custodial
interrogation by requesting counsel.” Id. at 413, 418. The Ninth Circuit reasoned
that the officer who interrogated him, who told him that “it might be worse for”
him if he talked to an attorney, had “demeaned the pre-trial role of counsel . . . by
dispensing a one-sided, unauthorized legal opinion regarding whether Collazo
should remain silent and exercise his right to counsel” and “inappropriately led
Collazo to believe he could reap some legal benefit by excluding defense attorneys
from the pre-trial process.” Id. at 414, 418. The instant case is also unlike Hart v.
Attorney Gen. of Fla., 323 F.3d 884 (11th Cir. 2003), in which the interrogators
purported to explain to suspect Hart “the disadvantage of having a lawyer present”
during the interrogation. Id. at 894.
9
Appellant told the investigators that he “already kn[e]w” that “with [his]
background,” “they [the judge or jury] gonna believe . . . all” an officer witness
would say about appellant’s having had a gun.
18
We also reject appellant’s argument that his waiver of his Miranda rights
was undermined by the investigators’ statements to the effect “that he ‘need[ed]’ to
confess ‘now’” (a statement appellant argues was “a direct repudiation of the
Miranda warning”). This case is materially different from People v. Dunbar, 23
N.E.3d 946 (N.Y. 2014), another case on which appellant relies. There, officers
made the statements in question (e.g., “this is your opportunity to tell us your
story”) as part of a “scripted preface” or “‘preamble’ to the Miranda warnings,”
which was read before suspects had agreed to waive their rights and answer
questions. Id. at 947. Here, by contrast, the investigators’ statements to appellant
were made after he had said he had “no problem” answering questions without
counsel present. In addition, the investigators’ statements focused not on
remaining silent vs. speaking with the investigators without counsel, but instead on
the credibility of any reason for having the gun appellant might later give at trial,
compared to the credibility of an explanation provided during the interview. We
do not discern that the investigators’ statements were in derogation of appellant’s
“ongoing right to remain silent” or that the statements contradicted appellant’s
right to “request the assistance of counsel at any time.”
We conclude, in short, that none of the investigators’ statements highlighted
by appellant implicated his right to consult with counsel before being interrogated
19
or to have counsel present during the interrogation and that the statements in
combination also did not do that. Accordingly, we cannot conclude that the
interrogators subverted their earlier message apprising appellant of his Miranda
rights by disparaging the right to counsel that Miranda protects. 10
3. Statements about additional criminal charges
Appellant also contends that the investigators threatened him with
“additional charges” through statements that appellant argues subverted the advice
about his Miranda rights. He highlights the following statements:
Because I can tell you right now, if he did something
wrong up in that apartment[,] you’re facing that too. I
mean, if they find a body or something up in that
apartment, guess what you’re facing, a homicide charge.
[The other man] could [have] just robbed somebody, or
beat somebody up? I mean, I — I’ll be waiting for the
radio to come out later on tonight saying they found a
body up in that apartment . . . . And I’ll say, well guess
who we gonna be charging with that?
10
We also cannot say that the investigators’ statements that drew
appellant’s attention to the likely ineffectiveness of any defense he might raise for
the first time at trial, without focusing him on the “tactical advantages of having an
attorney present” during his interrogation, undermined the validity of his Miranda
waiver. See Di Giovanni, 810 A.2d at 892 (stating that “a knowing and intelligent
waiver [of Miranda rights] does not necessitate an understanding of the tactical
advantages of having an attorney present or otherwise invoking Miranda rights”).
20
Actually, we’re gonna dig so hard[,] we’re gonna find out
who that gun belonged to, if there are any bodies on that
gun, we’re gonna dig.
Relying on this court’s opinions in In re S.W., 124 A.3d 89 (D.C. 2015), and Little
v. United States, 125 A.3d 1119 (D.C. 2015), appellant contends that the foregoing
statements rendered his Miranda waiver invalid because they suggested that “if
appellant remained silent, he would face fabricated charges for things that he did
not do.”
We are not persuaded by appellant’s analogy to those cases or by his
argument more generally. In S.W., the critical fact was that, prior to even reading
the juvenile suspect his Miranda rights, the interrogating detective told him, “I
stand between you and the lions out there . . . . [W]e have a lot of things going on
out there, and they’re gonna try and say that you did it all.” 124 A.3d at 94.
Calling these statements “veiled threat[s],” we observed that “rather than
recounting the specific evidence implicating appellant, [the] Detective . . . referred
generally to unspecified charges that appellant would face if the ‘lions out there’
had their way.” Id. at 103. We concluded that the statements were improper
because they “suggest[ed] that if appellant remained silent, he would face
fabricated charges for things that he did not do.” Id. Similarly, in Little, we
21
concluded that the defendant’s confession was involuntary because it followed the
detectives’ repeatedly “scar[ing] Mr. Little with the prospect of being falsely
accused of unrelated robberies, perhaps a lot of them[,]” 125 A.3d at 1132,
“offenses they openly indicated they did not suspect him of committing,” if he did
not confess to a carjacking. Id. at 1127.
Here, by contrast, we conclude that the statements the investigators made
about potential, additional charges were not improper because they threatened
neither “fabricated” charges nor “unspecified” charges unconnected to the offense
for which appellant had been arrested. S.W., 124 A.3d at 94. Rather, the
investigators’ comments specifically cautioned appellant, an adult who was
“familiar with the system,” that through lab work the police would find out to
whom the gun actually belonged. The statements apprised appellant of the
potential, in light of the officer’s report that appellant had been in possession of the
gun they recovered and had fled from police, that he could be charged with a
while-armed homicide, robbery, or assault if, after “digging,” evidence of any such
offense tied to the gun was found in the apartment building from which appellant
had fled. The officers did not threaten to fabricate charges or to charge appellant
with any of the “lot of things going on out there,” S.W., 124 A.3d at 94; rather, they
let him know that he realistically faced an investigation that might tie him to other
22
crimes, if any, found to be connected to the firearm. As we recognized in S.W.,
“[c]onvey[ing] the gravity of [a suspect’s] situation” by reference to specific
charges in which appellant may be implicated during a post-waiver interrogation
does not violate Miranda or vitiate a suspect’s “decision to waive his right based
on his own free will.” Id. at 102-03 (internal quotation marks and brackets
omitted).
4. Statements that appellant asserts were to the effect that
honesty would not hurt, or that he could “help himself” by
making an incriminating statement, and that appellant argues
contributed to the invalidity of his waiver by “obscur[ing] . . . the
consequences of forgoing his privilege against self-incrimination”
Appellant asserts that “the investigators methodically undermined [the
statement of his] rights by telling him that the only way he could help himself was
by providing an incriminating statement to police” 11 and that their statements to
him “went far beyond the improper advice in Hart that ‘honesty wouldn’t hurt’
. . . .” He contends that the investigators’ statements “[f]latly contradict[ed] the
Miranda warning’s message that anything he said could be used against him.”
11
Specifically, the investigators told appellant: “[T]his is the point where
we need some honesty from you” (emphasis added). “[T]he only way you gonna
be able to help yourself out . . . is that you sat down in this room and you were
honest . . . .” “[N]ow is the time to tell me.” “This is the last chance we’re gonna
believe you, where you can be honest . . . .” “[W]e need to hear that from you.
And you need to — we need — we need to hear some honesty about it.” “[Y]ou
need to tell us . . . . You need to make me believe you . . . .”
23
We do not agree that the investigators’ statements conveyed (or would
reasonably have caused appellant to believe) that “honesty wouldn’t hurt.” Hart,
323 F.3d at 894. To begin with, the investigators never suggested to appellant that
he could avoid prosecution and escape penalty if he confessed. Quite the contrary,
as discussed above, the investigators let appellant know that he faced serious
charges and that “first of all[,] there’s no getting out of this, you[’re] on the hook.”
Appellant agreed that he “kn[e]w what [he was] facing” and at one point said
“[a]bout ten more years, man[,]” (seeming to imply that he knew that this would be
the potential period of prison time he would face after having “just been there and
done six years”). He told the investigators that whether he said that he did not
have the gun or said that he had it “for whatever reasons,” “[t]he shit not gonna
help me . . . . You see what I’m saying?” (but agreed that he “need[ed] to be
looking to lessen the damage”). He also told the investigators that he was “still
gonna do the protocol, process, regardless,” and they agreed, saying, “Yeah, you
gonna be going through . . . the process, ain’t no doubt about that.”
We therefore reject appellant’s efforts to liken the investigators’ statements
to those at issue in Hart. In Hart, the Eleventh Circuit observed that “[t]he phrase
‘honesty will not hurt you’ is simply not compatible with the phrase ‘anything you
24
say can be used against you in court,’” reasoning that “[t]he former suggested to
Hart that an incriminating statement would not have detrimental consequences
while the latter suggested (correctly) that an incriminating statement would be
presented at his trial as evidence of his guilt.” Id. at 894. The statements made by
investigators in this case did not contradict the Miranda warnings; the statements
conveyed that appellant’s honesty might “lessen the damage,” and the investigators
told appellant that “lying is not gonna help you go home[,]” but their statements
did not convey that no penalty or other harm would ensue if appellant was honest
and told them why he had the gun.
Nor did the investigators unqualifiedly urge appellant to make an
incriminating statement so as to “help himself.” They repeatedly told appellant not
to confess falsely. Specifically, Gamble three times told appellant, “If you didn’t
have a gun, don’t say you had one,” or words to that effect, and told appellant that
he was “not trying to get you to say you had [a gun] if you didn’t.” Danho said, “If
you didn’t have a gun and you swear to it, we’re not trying to convince you to say
you did have the gun.” Gamble also told appellant that he did not want him to
“kind of try to put a story together . . . .” Thus, we cannot agree with appellant’s
claim that “the detectives’ repeated instruction that all they needed [him] to do was
25
provide a ‘decent reason’ made it clear that their efforts were focused on obtaining
an incriminating statement as opposed to the truth.” 12
Appellant asserts that the investigators told him “that providing them with an
incriminating statement was his ‘only’ and ‘last chance’ to ‘lessen the damage,’”
but the record does not quite support that characterization. What the investigators
actually told appellant was that the interview — in which he had agreed to
participate without counsel — was a chance to impress prosecutors and the judge
with an honest account and his “last chance” to give an account that the
investigators would believe.
Further, as appellant acknowledges by quoting Commonwealth v. Meehan,
387 N.E.2d 527, 534 (Mass. 1979), “a police officer ‘may suggest broadly that it
would be better for a suspect to tell the truth’” without contravening Miranda. See
12
Nor did the investigators invalidate appellant’s Miranda waiver by
asking him for a “reason” for his conduct. Cf. Wyrick v. Fields, 459 U.S. 42, 46-49
(1982) (rejecting any “unjustifiable restriction on reasonable police questioning”
and reasoning that where the defendant “had been informed that he could stop the
questioning at any time, and could request at any time that his lawyer join him[,]”
asking him “if he could explain the . . . unfavorable results” of a polygraph test he
had just taken “could not remove this knowledge from [his] mind” and “would not
have caused him to forget the rights of which he had been advised and which he
had understood moments before”).
26
also In re M.A., 33 A.3d 378, 381-82 (D.C. 2011) (stating that the law allows
interrogators to tell suspects that “the best thing you can do is tell the truth”);
United States v. Bezanson-Perkins, 390 F.3d 34, 42-43 (1st Cir. 2004) (concluding
that the detective’s statements that “[t]he truth opens doors,” “the truth from you is
what I need,” and “the truth does help” did not deceive defendant in a manner that
rendered his waiver ineffective).
Appellant also highlights the fact that the investigators made multiple
statements that urged him to fabricate a “decent” or “good” reason for his
possession of the firearm. 13 He asserts that none of the “‘reasons’ the investigators
13
“If you had the gun for a reason, maybe they can work with that.” “[I]f
you say, well I wasn’t gonna use it, I wasn’t gonna rob somebody, you know, or
somebody — someone’s out for me. You know, that’s understandable.” “[W]e
need to hear a reason . . . .” “[Y]ou got an ex-girlfriend or something like that who
threatened you or — or something like that, or her brother. You know, I can
understand maybe needing a gun for protection.” “I mean, you need to come up
with a reason you had that gun.” “I mean, if your friend said hold this for a
second.” “I say there are legitimate reasons [to possess a gun]. . . . Sometimes it
needs to happen.” “[T]hat you have a reason you had [the gun.]” “Now if your
boy handed you a gun, and you said, shit man I don’t want this and you just kind of
put it in your pocket . . . . That happens. Right?” “[T]here could have been a lot of
events that took place. Whether he handed the gun to you, he got scared, you were
doing . . . him a favor.” “You had the gun for protection[.]” “They look at
whether or not you have a reason to have that gun.” “[A]s long as you — long as
you give me a decent reason why you’re there . . . . Where that gun came from, and
why you had it on, or why you had it on you.” “That’s maybe why you did have a
gun. . . . ‘Cause if I don’t know a guy[,] and I’m kind of skeptical of this guy and
what he’s doing’ . . . maybe that’s the reason why I did bring my gun.” “See
(continued…)
27
threw out as possible explanations for the alleged gun possession — such as
carrying a gun because someone was out to get him[,] or holding [the gun] for a
friend — would have excused [him] from criminal liability.” He argues that the
investigators’ statements therefore amounted to false advice “that there could be
‘legitimate reasons’ why he might have had a gun,” constituted “substantively false
legal advice [that] further obscured . . . ‘the consequences of forgoing’ his
privilege against self-incrimination,” and “thus contributed significantly to the
invalidity of his waiver.”
However, again, the investigators never suggested to appellant that he might
be “excused” from criminal liability. Rather, they indicated to appellant — and he
signified that he understood — that he was “gonna be going through
the . . . process” regardless of what occurred during the interrogation and that there
was “no doubt about that.” We see nothing in the record to suggest that appellant
failed to understand that the investigators were telling him only that a “decent”
reason for possessing the firearm might lessen the sentence he would face. Again,
(…continued)
there’s — there’s many ways.” “Did he ask you to hold onto it?” “I’m not saying
it’s yours, it could be your friend’s that you were with. We want to know that.
And if you tell us that, it can actually be in your favor. Did he hand the gun to
you? Were you just holding it for him?”
28
appellant told the investigators that “[t]he shit not gonna help me” whether he said
that he did not have the gun or said that he had it “for whatever reasons.” 14
Further, given that trial judges “have great latitude in the sentencing
process” and “may consider a wide range of facts concerning a defendant’s
character and his crime,” including the circumstances leading to the defendant’s
commission of a crime, Williams v. United States, 427 A.3d 901, 904 (D.C. 1980),
we cannot say that the investigators’ statements amount to a “deceptive tactic[].”
Little, 125 A.3d at 1133. The investigators were correct that the prosecutor could
have “worked with” appellant by recommending, and a sentencing judge could
have “worked with” him by giving him, a sentence reflecting leniency if, for
example, appellant had possessed the gun without intent to use it unlawfully. 15
14
Appellant is correct that, as he was making the foregoing statement,
Investigator Gamble interjected, “I don’t necessarily agree, but . . . I’d understand
why you wouldn’t trust me.” We cannot say that, in the totality of the
circumstances, that isolated statement, made in the midst of appellant’s strong
assertion that confessing would not help him and followed by appellant’s
agreement that he was “on the hook” and that there was “no getting out of this,”
vitiated appellant’s waiver. Appellant asserts that this statement made clear that
“his previous understanding of his Miranda rights was flawed . . . .” But as he
manifestly “knew his words could be used against him,” we “decline to conclude
that any violation of his Fifth Amendment rights against self-incrimination
occurred.” United States v. Umaña, 750 F.3d 320, 345 (4th Cir. 2014).
15
And, in that the investigators did not know what explanation appellant
would offer, it was not impossible that his explanation would afford him a
(continued…)
29
5. Statements that appellant asserts were to the effect that his
refusal to incriminate himself would be held against him and
cause him to be “hit hard” and to face “harsher consequences”
Appellant also asserts that the investigators undermined the statement of his
rights by telling him “that failure to make [an incriminating] statement would be
held against him” and cause him to face “harsher consequences,” and that “a judge
would hold his lack of a confession — his reliance on his constitutional rights —
(…continued)
complete defense to the charges he faced. For example, for all the investigators
knew, even as a defendant facing a felon-in-possession charge, appellant might
have had an innocent transitory possession defense. See United States v. Mason,
233 F.3d 619, 623-25 (D.C. Cir. 2000) (holding that the district court erred as a
matter of law in not instructing the jury on Mason’s innocent possession defense to
a felon-in-possession charge under 18 U.S.C. § 922 (g)(1)). Or, for all the
investigators, knew appellant might have had the gun because he took it from
someone else in an act of self-defense. See, e.g., United States v. Leahy, 473 F.3d
401, 403 (1st Cir. 2007) (“We hold that there is a justification defense available in
felon-in-possession cases, which typically encompass duress, necessity, and self-
defense.”); United States v. Planter, 688 F.2d 268, 272 (5th Cir. 1982) (“[W]here a
convicted felon, reacting out of a reasonable fear for the life or safety of himself, in
the actual, physical course of a conflict that he did not provoke, takes temporary
possession of a firearm for the purpose or in the course of defending himself, he is
not guilty of [a felon in possession of firearm offense].”). Thus, we are unable to
conclude that the investigators “[f]alsely assert[ed] that there could be ‘legitimate
reasons’ why [appellant] might have had a gun” or that “not one of the ‘reasons’
the investigators” suggested would have lessened the damage.
Notably, the explanation appellant eventually gave did not rely on a defense
of the type the investigators’ statements had suggested (e.g., that he had the gun
because someone had threatened him or a family member).
30
against him ‘even more so’ than the crime itself.” Putting the point differently,
appellant asserts that the investigators “engaged in a relentless attempt to make
him believe that his situation would only get worse unless he confessed to them
immediately, outside the presence of counsel.” Appellant highlights that the
investigators warned him that “he would ‘piss[] the judges off’ and be ‘hit hard,’”
with a “longer sentence,” unless he confessed. 16 He contends that the
investigators’ statements, much like “threatening to inform the [court or the]
prosecutor of a suspect’s refusal to cooperate,” United States v. Harrison, 34 F.3d
16Appellant points to the following statements by the investigators:
And, you know, they don’t like you being dishonest
when you get to this point either. That kind of pisses the
judges off.
The difference is, and this is what you need to think
about, is that they look at whether or not you’re honest.
They look at whether or not you have a reason to have
that gun. All right. If you stick with it’s not yours[,] and
you don’t have a reason, okay. You stick with the some
guy I don’t know went into an apartment, they — they —
first of all they gonna go — I don’t buy it[,] so they’re
not gonna buy it. And then they hold that against you,
even more so th[a]n the steel.”
I don’t even know how they do it, but man, they get
DNA off everything. So at that point, they gonna see you
in here lying, they’re gonna hit you hard, man.”
31
886, 890-91 (9th Cir. 1994), “violate[d] h[is] fifth amendment right to remain
silent.”
In analyzing this subset of appellant’s claims, we begin by noting that both
the Supreme Court and this court have held that an interrogator’s informing a
suspect that a “cooperative attitude would be to [his or her] benefit” does not
invalidate a prior waiver of Miranda. Fare v. Michael C., 442 U.S. 707, 727
(1979); see also Thompkins, 560 U.S. at 388 (recognizing, with approval, that a
Mirandized suspect “has the opportunity to reassess his or her immediate and long-
term interests[,]” including the possibility that “[c]ooperation with the police may
result in more favorable treatment for the suspect”); United States v. Umaña, 750
F.3d 320, 344 (4th Cir. 2014) (confirming that police may “highlight the positive
aspects of confession”); United States v. Jacques, 744 F.3d 804, 809-10 (1st Cir.
2014) (stating that it is “well settled” that an officer may tell a suspect that he will
bring the defendant’s cooperation to the attention of the prosecutor or “suggest[]
that cooperation may lead to more favorable treatment”); Bezanson-Perkins, 390
F.3d at 42-43 (rejecting the claim that officers’ statements invalidated the
defendant’s waiver of his right to remain silent where the officers “merely
confirmed this situation by laying out the strong evidence they had, and then
ask[ed] him why, given his understanding of things, he did not take the path that
32
was likely to lead to a lower sentence”; reasoning that “the context in which these
statements were made shows that the officers were telling [him] that cooperating
with them would be better for [him] in terms of a lower sentence”).
Appellant emphasizes that the investigators never told him that they would
report his cooperation to the prosecutor or judge, and he argues that the
investigators’ statements therefore cannot fairly be interpreted as conveying the
possible benefits of an honest confession. We disagree. The investigators told
appellant that the judge and attorneys would watch the video of his interview and
implied that they thereby would be able to see whether, in light of other evidence,
he had falsely denied a connection to the gun or instead cooperated with the police.
We also do not agree that the investigators’ statements conveyed that
appellant would face harsher penalties if he did not confess. Rather, we are
satisfied that the investigators’ statements to appellant that he may “piss off” the
judge, and have it held against him if he lied, were truthful appraisals of the
potential consequences of appellant’s dishonesty. While appellant is correct that
“there are no circumstances in which law enforcement officers may suggest that a
suspect’s exercise of the right to remain silent may result in harsher treatment by a
33
court or prosecutor,” 17 we are satisfied that such a coercive tactic is not what
occurred here.
6. The cumulative effect of the investigators’ various statements
Our analysis of the investigators’ individual statements shows that, contrary
to appellant’s assertion, his interrogators did not “proceed to subvert [the Miranda]
warnings at every turn” and did not “repeated[ly] mischaracterize[e]” appellant’s
constitutional rights. Further, as courts have aptly observed, “the very purpose of
an interrogation is to obtain a confession[,]” United States v. Wilcox, Crim. No. 10-
173 (MJD/JJG), 2010 U.S. Dist. LEXIS 104249, *12 (D. Minn. Aug. 20, 2010),
and “every interrogation of a suspect contains some element of coercion or
pressure to elicit a confession[.]” United States v. Klynsma, No. CR. 08-50145,
2009 U.S. Dist. LEXIS 93631, *74 (D.S.D. Aug. 20, 2009). We therefore demur
to appellant’s complaint that questioning designed to urge appellant to confess
“permeated the entire interrogation.” It is difficult to imagine a custodial
interrogation whose entire “course” would not involve the interrogator’s
“repeatedly” posing questions or making statements by which, without deviation,
they try to learn, through a confession, what actually happened. Nevertheless,
17
S.W., 124 A.3d at 103 (quoting Harrison, 34 F.3d at 891).
34
having performed a statement-by-statement and subset-by-subset analysis of the
interrogators’ statements,18 we must consider whether the statements, though not
problematic individually or in combination under one of appellant’s theories, might
have had the cumulative effect of vitiating appellant’s Miranda waiver. Therefore,
we next consider appellant’s argument his interrogators’ “relentless[ly]” delivered
the “pervasive message” that he “could face other charges, including murder,” and
be “’hit hard’ at sentencing” unless he did as Investigator “Gamble instructed”:
give the investigators “‘a decent reason’ why he had a gun.”
For the following reasons, we are satisfied that the investigators’ statements
and questions did not have the cumulative effect of rendering appellant’s waiver
18
This approach is consistent with the approach taken in our prior Miranda
cases. For example, in In re S.W., after explaining the context of appellant’s
interrogation and the general factors on which we rely in a totality-of-
circumstances analysis, we analyzed and took specific issue with the officers’
statement telling appellant they (the officers) were the only barrier between him
and “the lions out there.” 124 A.3d at 94. In Little, although “we reach[ed] th[e]
conclusion [that Mr. Little’s confession was involuntary] based on the totality of
the circumstances,” we were “focus[ed] particularly []on the detective’s
threatening statements about the possibility [that] 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.’” 125 A.3d at 1127. Thus,
our analytical approach set out above not only is permissible, but also is required
under our case law as a basis for determining whether the interrogation involved
any such singularly coercive or vitiative statements.
35
invalid. First, the interrogation was a relatively short one, 19 lasting approximately
one and a half hours — which time was punctuated with a bathroom break, with a
repeat of the Miranda warnings, and, during the questioning, by repeated long
pauses (at least seventeen by our count) that appellant took (and seemed
comfortable taking) before responding to the investigators’ questions. Appellant
rebuffed certain statements the investigators made to him (telling them that
“whatever reason[]” he might offer for having a gun was “not gonna help [him]” or
enable him to avoid “do[ing] the protocol,” and he got the investigators to agree
with him (“Yeah, you gonna be going through . . . the process, ain’t no doubt about
that.”). When Gamble told appellant that he could face additional charges related
to the gun and the judge or jury would likely believe the officer who said he heard
appellant drop the gun, appellant told them, “I already know. I understand all that”
and “I understand. I really do.” Thus, the overall tenor of the interrogation was
not, as appellant asserts, a “steady corrosion” of the understanding appellant had
19
Cf. Crear v. Gipson, No. C 12-5149 RS (PR), 2013 U.S. Dist. LEXIS
139901, *15 (N.D. Cal. Sept. 26, 2013) (noting that the habeas petitioner “was
subject to two relatively short interrogations (90 minutes and two and a half
hours”)); McCann v. Trombley, 2009 U.S. Dist. LEXIS 37407, *12, 13 ( E.D.
Mich. May 4, 2009) (referring to an interview with one detective that “lasted about
two and a half to three hours” and a second interview with a police sergeant that
“lasted an hour and a half to two hours” as a “relatively short interrogation”);
Kissinger v. Pitcher, No. 4:04-CV-101, 2006 U.S. Dist. LEXIS 65327, *26 (W.D.
Mich. Aug. 14, 2006) (“Petitioner was subjected to a relatively short interrogation,
being questioned for little over an hour.”).
36
when he heard the Miranda warnings and waived his right to remain silent and to
have an attorney present for questioning. Even after beginning his confession by
saying, “I think I was set up,” appellant took long pauses, evidencing that he was
still thinking about whether to go further rather than caving in the face of anything
the investigators had said to him.
Further, not just at the beginning of the interview but throughout the
exchanges between appellant and the investigators, appellant (and the
investigators) appeared relaxed, and the investigators neither raised their voices,
nor invaded appellant’s personal space, nor aggressively challenged his answers.
As described above, they also displayed a willingness to “step outside” and give
appellant “a few minutes to think” and to relent in their questioning. For example,
when appellant initially responded that he did not want to answer any questions,
Investigator Gamble said, “All right. That’s it then,” and the investigators began
gathering their materials to leave the room. When appellant later would not give a
reason why he had the gun, Investigator Gamble said, “we’ll go with that” and “go
and sit on back downstairs.” Both investigators repeatedly told appellant not to
confess falsely, Gamble telling him that three times before he confessed and Danho
twice saying words to the effect that if the gun was not appellant’s, he should
“stick to” his denial. All these facts, coupled with the fact that this was not
37
appellant’s first encounter with the criminal justice system, leave us quite satisfied
that the cumulative effect of the statements and questions about which appellant
now complains was not to undermine and vitiate his Miranda waiver.
B. Whether appellant’s confession was voluntary
Appellant also contends that “[t]he investigators’ ‘undeviating intent to
extract a confession’ . . . violated due process and rendered [his] confession
involuntary” and inadmissible for any purpose. “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.” Turner v. United States, 761 A.2d 845, 854
(D.C. 2000) (internal quotation marks and brackets omitted). “In determining
whether, under the totality of the circumstances, a confession is voluntary, the trial
court should consider the same factors it takes into account in determining the
validity of a waiver following Miranda warnings[,]” Beasley v. United States, 512
A.2d 1007, 1015 (D.C. 1986) (citing Bliss v. United States, 445 A.3d 625, 631
(D.C. 1982)), including “the suspect’s age, education, prior experience with the
law, and physical and mental condition,” as well as the “duration and intensity [of
the interrogation], the use of physical punishment, threats or trickery, and whether
38
the suspect was advised of his rights.” Graham v. United States, 950 A.2d 717,
736 (D.C. 2008) (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)); see
also Miranda, 384 U.S. at 98.
Considering the totality of the circumstances, we reject appellant’s argument
that his confession was involuntary. To recap what we have said above, appellant,
a thirty-one-year-old adult, was no novice to the criminal system. He was advised
of his rights (twice), underwent a relatively short (a little over an hour) and
conversational-tone interrogation, was permitted to use the bathroom, was offered
medical help, and apparently felt comfortable enough and sufficiently in control
during the interrogation to take repeated long pauses before answering the
investigators’ questions. The Supreme Court has observed that “cases in which a
defendant can make a colorable argument that a self-incriminating statement was
‘compelled’ despite the fact that the law enforcement authorities adhered to the
dictates of Miranda are rare.” Berkemer v. McCarty, 468 U.S. 420, 433 n.20
(1984); see also Missouri v. Seibert, 542 U.S. 600, 608–09 (2004) (“[M]aintaining
that a statement is involuntary even though given after [Miranda] warnings and
voluntary waiver of rights requires unusual stamina . . . .”). We are satisfied that
this is not that rare case.
39
We have concluded that confessions were voluntary though obtained in
significantly more physically trying circumstances than those presented here. In
Dorsey, for example, we were unanimous in holding that Dorsey’s confession was
voluntary even though the officers (who in violation of Dorsey’s Miranda rights,
continued their questioning after he had invoked his right to remain silent),
interrogated him for thirteen hours (that extended through the middle of the night)
and ignored his numerous pleas for sleep as well as his physical expressions of
fatigue; and even though Dorsey, suffering alcohol withdrawal, had urinated on
himself, was sweating profusely, and was “shaking like a leaf.” 60 A.3d at 1180-
87, 1202-06. In Bliss, we concluded that Bliss’s confession was voluntary even
though officers questioned him shortly after he had been shot, “was in pain from
the gunshot wound,” was still awaiting treatment, and was visibly cold. 445 A.2d
at 631.
Further, this court and others have found that a defendant’s confession made
during a custodial interrogation was voluntary even though the interrogators
exaggerated the existence or strength of evidence inculpating the suspect;20
20
See, e.g., Graham, 950 A.2d at 723, 737 (concluding that the nineteen-
year-old defendant’s confession was voluntary even though a detective falsely told
him that a witness had identified him); Davis, 724 A.2d at 1168 (concluding that
the eighteen-year-old defendant’s confession was voluntary even though detectives
(continued…)
40
conveyed the gravity of the defendant’s situation by referring to charges he might
face;21 urged the suspect to tell the truth and indicated that the suspect’s
cooperation would be brought to the attention of prosecutors; 22 or (as appellant
contends happened here) threatened a harsher sentence for failure to cooperate. 23
(…continued)
falsely told him that they had evidence establishing his guilt); Beasley, 512 A.2d at
1015 (concluding that Beasley’s confession was voluntary even though officers
falsely told him that “his fingerprints had been found in the [d]ecedent’s car, and
that [numerous witnesses] could identify [him] as the assailant”).
21
See, e.g., Braxton, 112 F.3d at 782 (“[T]ruthful statements about the
defendant’s predicament are not the type of coercion that threatens to render a
statement involuntary.” (internal quotation marks and brackets omitted)).
22
See, e.g., Beasley, 512 A.2d at 1016 (Officers’ comments that defendant
“should ‘help himself’ and ‘tell the truth’ and that any cooperation would be
communicated to the prosecutor” were not “‘sufficiently critical’ to have
overborne [his] ability to make a free and voluntary confession.” (citation
omitted)); see also Jacques, 744 F.3d at 809-10 (“[A]n officer does not
impermissibly overbear a defendant’s will by promising to bring the defendant’s
cooperation to the prosecutor’s attention or by suggesting that cooperation may
lead to more favorable treatment.”); United States v. Jaswal, 47 F.3d 539, 542 (2d
Cir. 1995) (“Generally, promises of leniency will not render a confession
involuntary.”); United States v. Ornelas-Rodriguez, 12 F.3d 1339, 1348 (5th Cir.
1994) (upholding finding that defendant voluntarily confessed after being told
there were advantages to cooperation).
23
See, e.g., Jacques, 744 F.3d at 811 (“[T]here is no evidence suggesting
that [the agents’] threats of a harsher sentence in exchange for Jacques’s refusal to
cooperate had any meaningful impact on Jacques’s conduct during the
interrogation.”); see also United States v. Sablotny, 21 F.3d 747, 752-53 (7th Cir.
1994) (reasoning that an officer’s statement to a suspect “that she would probably
go to jail” was not coercive because it did not “magnify . . . matters to the point
where a rational decision b[ecame] impossible.” (citation omitted)).
41
As evidence of the purported involuntariness of his confession, appellant
points to his “ultimate adoption — following persistent denials — of one of the
‘reasons’ police repeatedly fed to him . . . .” This, appellant argues, “strongly
suggests that the coercive tactics in this case actually bore fruit.” He cites this
court’s decision in In re J.F., 987 A.2d 1168, 1178-79 (D.C. 2010) (concluding
that the defendant’s confession was involuntary where it was made up of details
fed to him by the police following their repeated coercive tactics).
This case actually differs significantly from J.F. In J.F., the fourteen-year-
old defendant confessed after the interrogator hovered over him in a loud and
confrontational voice and after he had exclaimed “[h]ow I’m gonna tell you
something I don’t know?” Id. at 1174-75. We observed that “the majority of J.F.’s
final confession was comprised of details that J.F. had adopted from the
officers’ suggestions.” Id. at 1177; see also id. at 1175 (“[M]any of the details in
this version of the story had initially been provided by Sgt. Parker.”); id. at 1179(“[M]ost of the details of J.F.’s confession were initially provided by the officers.”
(footnote omitted)).
42
Here, after the investigators asked whether the other man had “handed the
gun to [appellant],” appellant did say that the man to whom he had given a ride
handed the gun to him. However, unlike in J.F., appellant added details that had
not been suggested by the interrogators’ questions, explaining that this happened
“[w]hen we got to the . . . building door,” when the man “was trying to get inside
the door [of the apartment building].” Appellant thus returned to the account he
had given the investigators a few transcript pages into the interview, when he said
that he and the other man were “trying to get in the building,” but were having
trouble doing so. Appellant also explained that the man said “hold this right
quick[.] [M]y t-shirt [is] too short.” Further, appellant explained that the other
man had the gun — which appellant said (correctly) had a “wood handle” —
because they (the other man and appellant) were trying to “sell the gun to
somebody.” Thus, appellant not only told the investigators that the man had
handed the gun to him, as the investigators had suggested, but went further and
acknowledged that his involvement with the gun was neither last-minute nor
unthinking. And, in supplying the detail about the wood handle, he gave the
investigators’ information that only someone who had handled or seen the
recovered gun would know. On this record, we will not infer that appellant’s
confession, which went far beyond the lines of “one of the stories [the
investigators] had proposed,” was the product of his will having been overborne.
43
Finally, appellant argues that through their various statements discussed
above, the investigators exhibited an “undeviating intent . . . to extract a
confession,” Spano v. New York, 360 U.S. 315, 324 (1959), that, as in Spano,
rendered his confession involuntary. It is true that in Spano, the Supreme Court
concluded that the “undeviating intent to extract a confession” (through “persistent
and continuous” efforts, including the sequential use, over an eight-hour period, of
at least four different interrogators and, finally, Spano’s close, childhood friend,
see id. at 317-20) contributed to rendering Spano’s confession involuntary. The
Court has not, however, generally rejected law enforcement officials’ deliberate
efforts to obtain confessions. The Court has recognized that “[a]dmissions of guilt
are more than merely ‘desirable[]’; they are essential to society’s compelling
interest in finding, convicting, and punishing those who violate the law.” Moran v.
Burbine, 475 U.S. 412, 426 (1986) (citation omitted).
In any event, this case does not present a chronology similar to the one in
Spano. Again, when appellant would not give a reason why he had the gun,
Gamble said that the investigators would just “go and sit on back downstairs.”
Earlier, when appellant initially responded that he did not want to answer any
questions, Investigator Gamble said, “All right. That’s it then[,]” and the
44
investigators began gathering their materials to leave the room. This record does
not bear the “undeviating” or unrelenting effort to extract a confession
characterization appellant assigns to it.
Moreover, appellant’s confession came only after he had taken several long
pauses to think and a bathroom break, and after he beckoned Investigator Danho,
who had stood up as if to leave, to sit down again. Those facts make this case
much more like Jacques than like Spano. As appellant notes, in concluding that
Jacques’s confession was voluntary, the First Circuit observed (in appellant’s
words) that “the defendant confessed not immediately after the police’s urging that
the confession would help him, but only after he had taken a cigarette break and
returned to the room to tell the detectives he wanted to confess because he realized
they had sufficient evidence to prove the case against him.”
45
IV. Conclusion
For the foregoing reasons, we conclude that the interrogators’ statement did
not vitiate appellant’s Miranda waiver and that appellant’s confession was
voluntary. We therefore affirm the denial of appellant’s motion to suppress and
the judgment of the trial court. 24
Affirmed.
24
On April 10, 2017, the government submitted a letter, pursuant to D.C.
App. R. 28 (k), in which it distinguished numerous cases appellant had cited in his
Reply Brief. Thereafter, appellant filed a motion to strike the government’s letter,
arguing that it “violate[d] the plain language of the Rule [28 (k)], which states that
a 28[](k) letter may not contain argument.” Appellant’s motion is granted to the
extent that the government’s letter contains argument.
Appellant’s motion for leave to late-file his reply brief is granted nunc pro
tunc.