Brown v. U.S., No. 02-CF-1313.

• Decision Date: 27 August 2009
• Docket Number: No. 02-CF-1313.
• Parties: Manuel M. BROWN, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

979 A.2d 630

Manuel M. BROWN, Appellant, v. UNITED STATES, Appellee.

No. 02-CF-1313.

District of Columbia Court of Appeals.

Argued January 28, 2009.

Decided August 27, 2009.

Patrick T. Hand, Washington, DC, appointed by the court, for appellant.

Leslie Ann Gerardo, Assistant United States Attorney, with whom Jeffrey Taylor, United States Attorney at the time the brief was filed, and Roy W. McLeese III, Thomas J. Tourish, Jr., and Alan Boyd, Assistant United States Attorneys, were on the brief, for appellee.

James Klein, Alice Wang, and Chris Kemmitt, Public Defender Service, filed a brief as amicus curiae.

Before BLACKBURNE-RIGSBY and THOMPSON, Associate Judges, and BELSON, Senior Judge.

THOMPSON, Associate Judge:

Appellant Manuel Brown challenges his conviction for first-degree murder while armed (D.C.Code §§ 22-2101, -4502(a) (1999 Supp.)); possession of a firearm during a crime of violence ("PFCV") (D.C.Code § 22-4504(b) (1999 Supp.)); and carrying a pistol without a license ("CPWL") (D.C.Code § 22-4504(a)(1) (1999 Supp.)). He contends that the trial court erred in failing to suppress a videotaped statement that he gave to police, and that the evidence was insufficient to sustain his CPWL conviction and likewise insufficient to prove that he committed murder "while armed with a pistol," as charged in the indictment. He also argues that the trial court erred by failing to instruct the jury on the definition of a "pistol." Supported by amicus curiae PDS, appellant contends in addition that his CPWL conviction must be reversed as a violation of the Second Amendment to the U.S. Constitution. We reject each of these arguments and affirm the judgments of conviction.

I.

The pertinent evidence at trial was presented largely through two videotaped statements that appellant gave to police and through appellant's own testimony. On January 21, 1999, appellant, who was 17 years old at the time, was with friends in the area of Seventh and O Streets, N.W., when Andre Hawkins, another friend, approached the group. Hawkins said, "I stay strapped" (apparently meaning that he was armed) and then lifted up his shirt and showed the group a gun. Appellant recognized the gun as a "Colt .45 pistol." Saying that he did not want to "keep [the gun] on him," Hawkins stashed it in a brown paper bag amid some nearby bushes. A while later, appellant retrieved the gun and put it in his waistband, prompting Hawkins to ask appellant why he was trying to steal the gun. Appellant denied trying to steal the gun and returned it to Hawkins.

Shortly afterward, Hawkins learned that he had no place to stay that night, and appellant invited Hawkins to stay with him at his mother's apartment on Martin Luther King Avenue. After appellant and Hawkins went there, appellant introduced Hawkins to Lawrence Hill, who lived in an apartment in the same building. The three spent the remainder of the day drinking cognac and smoking marijuana together. Hawkins repeatedly told Hill that he (Hawkins) should have killed appellant for trying to steal his gun. Hill, who was "scared," conveyed this information to appellant. Noticing that Hawkins kept trying to reach into his pocket, appellant at one point "started running" because "I didn't want [Hawkins] to shoot me."

When appellant and Hawkins were alone a while later in the day, appellant, thinking he needed to vomit, stepped outside to the parking lot. Hawkins followed appellant, and once again complained that appellant had tried to steal his gun. Hawkins then pulled out the gun and pointed it at appellant's face. Appellant grabbed the gun and the two wrestled for it. In the videotaped statement that appellant gave to police on February 24, 1999, he explained that as he and Hawkins were wrestling for the gun, appellant got the gun, shot Hawkins, and then ran back into the apartment building. After a while, appellant looked outside and saw that Hawkins's body was gone. Appellant then saw Hawkins at the side of the building and heard Hawkins make a noise that sounded like gasping for air. "Scared" that Hawkins "was going to come back," appellant locked the door, sat for a moment, and then went outside. Finding Hawkins still alive, appellant shot Hawkins a second time and then went back inside. Appellant stated that he shot Hawkins "on self-defense."

Testifying at trial, appellant gave the jury a different account. He testified that as he and Hawkins were wrestling for the gun, the gun discharged, firing into Hawkins's face. Appellant then picked up the gun, because he "didn't want to leave [it] there so [Hawkins] could shoot me in my back," and ran. As he was running, he heard something behind him and turned to see Hawkins charging at him with a black object that appellant thought was a gun. Appellant testified that Hawkins was known to carry two guns and that "I thought he was about to kill me . . . so I shot one time." Appellant testified that he later gave the gun to one of his friends and told him to throw it away or sell it.

Medical Examiner Gertrude Juste-Hjardemaal testified that the first bullet hit Hawkins in the face, but that Hawkins could have survived the injury it inflicted. The second bullet, however, penetrated the top of Hawkins's skull, inflicting the fatal injury.

II.

Appellant's first argument on appeal is that the February 24 videotaped statement should have been suppressed because it was obtained following an unreasonable delay in presentment, in violation of Rule 5(a) of the Superior Court Rules of Criminal Procedure. See Super. Ct.Crim. R. 5(a) (providing that a police officer "shall take the arrested person without unnecessary delay before the court").¹ The background of this argument is as follows.

Metropolitan Police Department Detective Pamela Reed was assigned to investigate the homicide. After an informant provided information that appellant was involved in the shooting, Detective Reed learned that there was an outstanding custody order (an "absconder warrant") for appellant's detention. Detective Reed asked a fellow officer to look for appellant, and that officer took him into custody on the absconder warrant on February 10, 1999. On the same day, Detective Reed questioned appellant after she had read to him, and he had waived in writing, his Miranda² rights. During the February 10 interview, which was videotaped, appellant told Detective Reed that Hawkins had accused him of trying to steal Hawkins's gun, that Hawkins later pulled the gun on appellant, that the two wrestled, and that the gun discharged, shooting Hawkins in the head. During the taping, appellant did not mention shooting Hawkins a second time.

After the February 10 interview, appellant remained in custody on the absconder warrant. Although believing that she had probable cause to arrest appellant in connection with the shooting of Hawkins, Detective Reed did not immediately seek an arrest warrant in this matter. However, after speaking with the medical examiner's office and learning that Hawkins was alive between the first shot and a second shot, Detective Reed obtained a warrant for appellant's arrest on the murder charge on February 22, 1999, and obtained a "come-up" order (i.e., an order that appellant be brought from the jail) on February 24. Officer Reed took custody of appellant and, after again reading appellant his Miranda rights and obtaining his written waiver on a PD-47 form, conducted a second videotaped interview (lasting about 15 minutes). As already described, in the February 24 interview, appellant stated that he shot Hawkins again after finding that Hawkins was still alive and had moved close to the apartment building after sustaining the first gunshot wound. On February 25, 1999, the following day, appellant was presented in court on the homicide charge.

Appellant filed a pre-trial motion to suppress the February 24 videotape on the grounds that his statements were obtained in violation of his Fourth and Fifth Amendment rights. The trial court denied the motion (and in this appeal appellant has not challenged admission of the videotape on those grounds).³ Appellant did not argue in the trial court that his February 24 statement should be suppressed because of a presentment delay. Accordingly, as appellant acknowledges, his delayed presentment claim is subject to plain-error review.⁴

Appellant's claim does not withstand plain-error review. The rule that makes a statement obtained from a defendant during a delay in presentment subject to exclusion is a "supervisory" rather than a constitutional principle, Corley v. United States, ___ U.S. ___, ___, 129 S.Ct. 1558, 1562, 173 L.Ed.2d 443, 450 (2009), that "aims to avoid all the evil implications of secret interrogation of persons accused of crime."⁵ McNabb v. United States, 318 U.S. 332, 344, 63 S.Ct. 608, 87 L.Ed. 819 (1943); see also Mallory v. United States, 354 U.S. 449, 454, 77 S.Ct. 1356, 1 L.Ed.2d 1479 (1957) (explaining that under Fed. R.Crim.P. 5(a), which requires arraignment before a judicial officer as quickly as possible so that an arrested person may be advised of his rights, the arrestee "is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself . . . to eliciting damaging statements to support the arrest and ultimately his guilt"). However, this court has consistently held that "the prohibition against unnecessary delay reflected in theMallory/McNabb doctrine, and in [Rule] 5(a), may be waived," Outlaw v. United States, 806 A.2d 1192, 1200 (D.C.2002), and that "a valid waiver by an accused of his Miranda rights⁶ is also a waiver of his right . . . to presentment without unnecessary delay," Crawford v. United States, 932 A.2d 1147, 1157 (D.C.2007), which waiver "is valid even if obtained during the period of unnecessary delay."⁷ Outlaw, 806 A.2d at 1200 (citation omitted).⁸ Thus, under the precedents of this court, when Detective Reed read appellant his Miranda rights and a...