Burno v. U.S., No. 97-CF-1698.

• Decision Date: 07 August 2008
• Docket Number: No. 97-CF-1698.,No. 06-CO-488.
• Citation: 953 A.2d 1095
• Parties: Aundrey D. BURNO, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

953 A.2d 1095

Aundrey D. BURNO, Appellant, v. UNITED STATES, Appellee.

No. 97-CF-1698.

No. 06-CO-488.

District of Columbia Court of Appeals.

Argued April 30, 2008.

Decided August 7, 2008.

Sydney Jean Hoffmann for appellant.

Florence Pan, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney, and Roy W. McLeese III, Elizabeth Trosman, and Glenn Kirschner, Assistant United States Attorneys, were on the brief, for appellee.

Before RUIZ, Associate Judge, FARRELL, Associate Judge, Retired,^* and TERRY, Senior Judge.

FARRELL, Associate Judge, Retired:

A jury convicted appellant (Burno) of armed assault with intent to rob, assault with a dangerous weapon, and related weapons offenses, crediting evidence that he had shot uniformed police officer Gerald Anderson in the neck in September 1995 while intending to rob the officer of his Glock service pistol.

Burno's main argument on appeal is that the trial court erred in not suppressing his videotaped confession, because police detectives (a) ignored what he contends was an unambiguous assertion of his right to end the custodial interrogation, or (b) failed to clarify whether he was asserting that right before questioning him further. Burno, however, did not unequivocally assert his right to end the interrogation, and under Davis v. United States, 512 U.S. 452, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), the police were not obliged to clarify his ambiguous responses before questioning him further about the crime. As we find no reversible error otherwise, we affirm the convictions.

I. The Trial Evidence

MPD Officer Anderson had just left a convenience store when he felt something strike his neck like a "sledgehammer" and knock him to the ground. He had been hit by a bullet from a .380 caliber automatic or semiautomatic pistol. Although Anderson did not see the shooting itself, he later identified Burno from photographs—he was "85 percent certain"—as the lone person he had seen standing behind him on the sidewalk moments after the assault, looking "dumbfounded" and hiding his right hand behind his leg. Besides this identification, the prosecutor introduced in evidence multiple statements and writings by Burno admitting his responsibility for the shooting. In particular, a month after the assault he told a friend of his mother's that he had "shot a police because the [officer] was in his way and he wanted [the officer's] gun." Later, while in jail following his arrest, he wrote a letter to Anthony Willis (an early suspect in the shooting) saying that "[t]hey got me over here for the police that I shot,"¹ and also while in jail, he wrote what he later claimed were rap songs in which he "remember[ed] when we shot at rookie cops for their Glock" and complained of his "right hand man turn[ing] snitch."

Important evidence against Burno, however, was his custodial confession to police detectives on January 16, 1996, first orally and then in a videotaped interview that was played to the jury. In both versions Burno confessed that he had shot the officer once and had tried to do so again (his gun had jammed); that he had done so intending to steal the officer's Glock service pistol; that Robert McFarlin, who had accompanied him to the scene and given him the .380 caliber pistol he used to shoot the officer, was in the convenience store at the time of the shooting; and that Burno and McFarlin had fled the scene together in a burgundy Nissan.²

II. The Videotaped Confession

Before the detectives questioned Burno on January 16, they told him that he was being charged with the shooting of Officer Anderson, and he waived in writing his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). He does not challenge the validity of the waiver on appeal.³ Thereafter, the detectives and an FBI agent interrogated him twice, recording the second interview on videotape. The trial judge found that, before the first round of questioning, Burno was "cocky and self-assured," saying "he had no problems talking to [the police] because he knew what he was doing" and "there wasn't anything [they] could pull over on him." In the first interview, Burno freely admitted that he had shot the police officer. Before the videotaped interview, he acknowledged the previous waiver of his Miranda rights.

Burno began the taped interview by describing the events in guarded fashion: "We drove to . . . the convenience store. We get out the car, go in the store. See a police come out, gun get fired. Police get shot in the neck." He acknowledged too that the person he had been with that evening was his "best friend, . . . known as EZ," but when a detective asked him EZ's full name, he stated: "Rather not say," though when the detective then asked if it was not "fair to say that [EZ's] . . . true name is Robert McFarlin," he replied "Sure." Answering further questions, Burno explained that he and McFarlin had come to the convenience store in a red Nissan and had seen a police officer inside, but when asked who specifically had entered the store, he again stated, "I'd rather not say." He acknowledged having "go[ne] through this [recital of events] before" with the detectives and having spoken "truthful[ly]"; but when a detective asked if he had not said "before that EZ went into the store to buy blunts," he answered a third time: "I'd rather not say. Said we went into the store. Cannot say who went in the store. I'm saying . . . only . . . it was two of us."

The detective then asked if it was not true that "you were armed with a gun at that point," and Burno answered "yeah," admitting that it was a .380 caliber, blackish-gray automatic-type pistol. He again described the shooting ("the officer comes out of the store, . . . say[s to Burno] . . . how you doing young man. Gun get fired. I hear a gunshot. See police fall."), and when the detective asked, "the gunshot comes from where, Andre?," he answered: "From a gun. The gun, the, I just heard the gunshot. . . ." Not satisfied, the detective asked if the gun that went off was the .380 in his possession, to which Burno first answered, "It's not my gun that went off." The questioning continued:

[Detective]: We're here just for the truth, Andre. You acknowledged to me a little bit ago that what you told agent Kossler and Detective Irving and myself was true and accurate. I wanna know if the gun that went off is the gun that you had in your possession, as you stated before.

[Burno]: I'd rather not say.

[Detective]: No, you don't want to say. Okay.

The detective then returned to Burno's oral confession and asked if he remembered stating why the shooting had happened. Burno first said that he did not recall why, but when reminded of his earlier admission that he "had a desire to get . . . a policeman's Glock nine millimeter" and asked "[w]as that the reason why the officer got shot?", he answered "yes." In answering further questions, he admitted he had "pulled the trigger to shoot the officer," having told others beforehand that he "want[ed] . . . a police Glock," and that he fled the scene of the shooting with EZ. During the rest of the interview, he expressed reluctance to say that EZ had joined him in "pee[ing] on" or dumping the .380 pistol in water to remove fingerprints ("Rather not say who done it.") and was similarly unwilling to talk about an earlier, unrelated altercation he and EZ had been involved in ("Rather not say") or to admit the kind of guns he had had in his possession on other, unrelated occasions ("Rather not say. . . . I just had several guns.").

III. Discussion

On this record, Burno argues that even though he waived his right to silence initially, he changed his mind and made clear his desire to end the questioning during the videotaped interview, and that the police then failed to "scrupulously honor[ ]" his choice. Michigan v. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). Alternatively, he argues that his expression of a desire to stop the questioning was at least ambiguous, and that the police were obliged to clarify his intention before continuing to question him about the crime, citing Sanders v. United States, 567 A.2d 55, 58 (D.C.1989). We consider these arguments in succession, and reject both.

A.

The warnings required by Miranda must be given, and the rights they protect voluntarily waived, before a suspect's statements made during custodial interrogation may be admitted in evidence. Miranda, 384 U.S. at 467, 476, 86 S.Ct. 1602; see Dickerson v. United States, 530 U.S. 428, 431, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000). Waiver of Miranda rights does not bar a suspect from later asserting them. See Edwards v. Arizona, 451 U.S. 477, 478-79, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981). If the suspect invokes his right to silence at any time, his subsequent statements are admissible only if "his `right to cut off questioning' was `scrupulously honored'" by the interrogators. Mosley, 423 U.S. at 104, 96 S.Ct. 321 (quoting Miranda, 384 U.S. at 474, 479, 86 S.Ct. 1602). In the wake of Mosley and Edwards, this court joined others in holding that an ambiguous or equivocal invocation of the right to silence or to counsel required interrogators to cease questioning except for a "limited inquiry" designed to clarify whether the suspect was invoking the right. Sanders, 567 A.2d at 58 (right to silence); Ruffin v. United States, 524 A.2d 685, 701 (D.C.1987) (right to counsel).

In Davis, supra, however, the Supreme Court rejected this "clarification rule" in the context of a claimed assertion of the right to counsel. The Court held that "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Davis, 512 U.S at 459, 114 S.Ct. 2350. Although noting that ...