Smith v. U.S., 85-729.

• Citation: 529 A.2d 312
• Decision Date: 10 August 1987
• Docket Number: No. 85-729.,85-729.
• Parties: Dennis G. SMITH, Jr., Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

529 A.2d 312

Dennis G. SMITH, Jr., Appellant, v. UNITED STATES, Appellee.

No. 85-729.

District of Columbia Court of Appeals.

Argued June 10, 1987.

Decided August 10, 1987.

Jamie S. Gardner, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Ann K.H. Simon, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and Michael W. Farrell and Robert L. Bredhoff, Asst. U.S. Attys., were on the brief, for appellee.

Before NEWMAN, BELSON, and TERRY, Associate Judges.

NEWMAN, Associate Judge:

Dennis Smith was convicted after a jury trial of second degree murder while armed. Before trial, Smith moved to suppress statements he made to the police following his arrest. The motion was denied; the statements were admitted in evidence at trail. Smith contends that the statements, having been obtained by the police in violation of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), should have been suppressed. We agree and reverse.¹

I

At the pre-trial suppression hearing, the government's primary witness was Officer William E. Corboy of the Metropolitan Police Department. Corboy testified that he was placed in charge of investigating the death of Elijah Gerald on May 28, 1984, and that on the basis of information obtained from the decedent's brother, Robert Gerald, he obtained an arrest warrant for appellant Dennis Smith and a search warrant for Smith's residence in Southeast Washington, D.C. Corboy arrived at the residence with two other officers and placed Smith under arrest. Smith volunteered to Corboy that the decedent had come at him with a hawk-billed knife, that he had been afraid, and that he had retrieved the knife and put it in a drawer.

Corboy then advised Smith that he had a warrant to search the home for a baseball bat, the alleged murder weapon, and asked him where it was. After Smith directed Corboy to his bedroom closet, another officer recovered the bat. Corboy then delivered Smith into the custody of the two accompanying officers, instructing them not to have any conversation with Smith on their way to police headquarters. Smith was transported to the homicide office at police headquarters.

Corboy returned to police headquarters about an hour later and joined Smith in the interview room. He asked Smith to listen to what he had to say without speaking, and proceeded to recite briefly the circumstances leading up to Smith's arrest. During this explanation, and despite Corboy's admonition to remain silent, Smith interrupted to tell Corboy that he should talk to his wife, Edna Smith, and his mother-in-law, Inez Williams. After reiterating that Smith should not speak until he was finished, Corboy completed his explanation.

Corboy then produced standard police department form PD 47, the "advice and waiver of rights card." He asked Smith if he could read; Smith replied that he read very little. Corboy placed the rights card between them and read the Miranda warnings aloud. Then he turned the card over, showed Smith the questions written on the back, and read each of them aloud.² Smith answered "Yes" to the first three questions, but when asked the fourth, "Are you willing to answer questions without having an attorney present?", Smith replied, "No."

Corboy testified that he was surprised by this answer because Smith had indicated in response to question number three that he wished to talk. Adding to this impression was the fact that Smith had been nodding his head while being read his rights, and that before, when Corboy was explaining the circumstances leading up to his arrest, Smith had interrupted despite being told not to speak. Therefore, "to make sure we both understood what his answer was," Corboy "asked him again, are you saying, are you willing to answer any questions without having a lawyer present; and are you saying you don't want to answer any questions?" Smith responded, "[y]es, I want to answer questions." Corboy then "cleared up this area, asked him an additional question or two. . . ." When Corboy asked Smith why he had answered "no", Smith explained that he had been confused. Corboy asked the third and fourth questions again, and Smith replied affirmatively to each. Corboy gave the card to Smith, who wrote "yes" next to each question and signed the card. Smith then gave a statement containing his version of the events leading up to the death of Elijah Gerald. With his consent, the statement was recorded on videotape.

Following the evidentiary hearing, the trial court denied Smith's motion to suppress the videotaped statement,³ simply stating its finding that there was no violation of Miranda, and that the statement was voluntarily made.

At trial, the government attempted to show that following a disagreement between Smith and Elijah Gerald, who lived at the same address, Smith hit Gerald on the side of the head with a baseball bat, inflicting a fatal injury. The government's primary witness was Robert Gerald, the decedent's brother, who also lived at that address. Gerald related that he was sitting at the kitchen table drinking vodka when he heard two men coming down the stairs arguing, and then heard something fall. When he went into the living room, he saw his brother Elijah lying on the floor with a cut over his eye, and Dennis Smith standing nearby holding a baseball bat, saying, "Come on, too, if you want some of it." After Robert had helped Elijah to his feet, Elijah went back upstairs. Robert did not see a knife in his brother's hand when he helped him up, nor did he see one on the floor afterward. About a half hour later, Inez Williams, a friend of Elijah who also lived at that address, went upstairs, then called to Robert. Robert went upstairs and found his brother on the floor unconscious. An ambulance was called and Elijah was taken to the hospital, where he died two days later.

The government also called as a witness the medical examiner, who testified that the cause of death was an injury to the head caused by one blow with a blunt instrument. Detective Corboy testified, in a fashion similar to his testimony at the suppression hearing, as to the circumstances because he was "scared and nervous and . . . wanted a cigarette." Later, Smith put the baseball bat in the garment bag under the clothes in the closet barricaded by the bunk beds, because he didn't want the children to play with it without his permission. surrounding Smith's arrest and videotaped statement. The videotape was played for the jury. Finally, Crime Scene Search Officer Louis Cooper testified as to his recovery of the baseball bat. It was found in the bedroom closet indicated by Smith. The door to the closet was blocked by large bunk beds which had to be moved in order to open it. Inside the closet was a pile of clothes reaching half way to the ceiling. Removal of the clothes revealed a closed garment bag, inside of which was found the bat.

Dennis Smith, testifying on his own behalf, claimed self-defense. He related that Elijah Gerald habitually became unruly when he was drunk, and that he had often seen Elijah pull a knife at such times; in fact, he had seen Elijah pull a knife on his brother Robert the week preceding the incident in question.

On May 26, 1984, the men of the house, including Smith and Elijah Gerald, had been drinking vodka all day. At about 6:30 in the evening, Robert Gerald and Inez Williams were in the kitchen, and Smith was standing in the living room near the kitchen door, when Elijah Gerald came down the stairs "cussing" and "raising his voice" at Smith. When Elijah reached the bottom of the stairs, he pulled out his knife and came at Smith. Smith retreated to the kitchen, grabbed the children's baseball bat from beside the freezer near the kitchen door, returned to the living room and swung the bat at Elijah, hitting him on the side of the head. He testified that "[t]hat was the only way I could stop him." Smith then picked up Elijah's knife, went upstairs, and put it in his own dresser drawer.⁴

When Smith returned downstairs, Inez Williams was helping Elijah up off the floor, and Robert Gerald was still sitting in the kitchen. Smith then left to go to the store to get cigarettes. He did not offer to help Williams pick Elijah up off the floor

Smith admitted on direct examination that his statement to the police, recorded on the videotape which had been played to the jury, had been false in several respects; most notably, he had told Officer Corboy that he had hit Elijah with the bat in the knee, rather than the head.⁵ He stated that he had not told the truth because he had been "scared [of] . . . going to jail for a long time." He testified that although he had lied to Corboy about hitting Elijah in the knee, his statement that Elijah had been coming at him with a knife was the truth.

Inez Williams, friend of the decedent and mother-in-law of Dennis Smith, testified that she was sitting at the kitchen table with Robert Gerald when she heard someone fall in the living room. She went into the living room and saw Elijah lying on the floor near a stereo console, his head bleeding. She assumed he had fallen down the stairs, rolled into the stereo and hit his head. She helped him up, after which he went upstairs and lay down. She called an ambulance. She did not see a knife on or near Elijah. She testified that at no time pertinent to these events did she see or hear Smith in the area.

Williams was impeached with her grand jury testimony in which she had said that when she went into the living room and found Elijah on the floor, Smith and Robert Gerald were in the room, and Smith had said to Gerald, "[C]ome on, if you want some of it too."

II

We are persuaded that Smith's videorecorded statement to Officer Corboy was obtained in violation of Miranda v. Arizona, supra. In that case, the Supreme Court held that during a custodial interrogation, if the accused "indicates in any...