Di Giovanni v. US, 99-CF-93.

• Decision Date: 21 November 2002
• Docket Number: No. 99-CF-93.,99-CF-93.
• Citation: 810 A.2d 887
• Parties: Patrick Di GIOVANNI, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

810 A.2d 887

Patrick Di GIOVANNI, Appellant, v. UNITED STATES, Appellee.

No. 99-CF-93.

District of Columbia Court of Appeals.

Argued September 12, 2000.

Decided November 21, 2002.

Brett E. Cohen, Arlington, VA, for appellant.

Patricia Sulzbach, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, and John R. Fisher, Mary-Patrice Brown, and James Sweeney, Assistant United States Attorneys, were on the brief, for appellee.

Before SCHWELB, RUIZ and WASHINGTON, Associate Judges.

WASHINGTON, Associate Judge.

Appellant, Patrick Di Giovanni, was convicted of assault with the intent to kill while armed,¹ aggravated assault while armed,² possession of a firearm during the commission of a crime of violence or dangerous offense,³ carrying a pistol without a license,⁴ possession of an unregistered firearm,⁵ unlawful possession of ammunition,⁶ and possession of a prohibited weapon.⁷ Di Giovanni filed a timely notice of appeal to this court, arguing that the trial court erred by 1) denying his pretrial motion to suppress his statements; 2) denying his motion for judgment of acquittal pertaining to the charge of assault with the intent to kill while armed; 3) ruling that his character witness could be cross-examined about his awareness of appellant's prior arrest for assault with the intent to kill; and 4) providing the jury with a standard flight instruction. We reverse and remand based on Di Giovanni's first claim of error.

I.

On the evening of November 13, 1996, James Grace ("Grace") parked his car near M Street. After eating at Burger King, he walked through P Street Beach⁸ and stopped at the top of a path to smoke a cigarette. Di Giovanni approached Grace, said hello, and walked away. Di Giovanni then approached Grace again, asked Grace his name, and asked if Grace wanted him to perform fellatio on him. Although Grace did not inform Di Giovanni of his name, he agreed to receive oral sex. Di Giovanni began performing fellatio on Grace, but stopped abruptly after one minute, saying "I hear someone calling me." Di Giovanni then took a gun from his right pocket, placed a white cloth over his hand and began shooting. A bullet hit Grace's stomach, causing him to dive down a cliff and hit a tree. Di Giovanni continued shooting at Grace while Grace struggled to reach his car.

Officer Harold E. Cunningham, Jr., of the Metropolitan Police Department ("MPD"), heard the gunshots and reported them on his radio. Grace noticed a police car and immediately told the police that he had been shot. He then fell to the ground, and a "spent slug" from a fired bullet tumbled from his clothing and landed on the ground beside him. MPD Detective Hughe Carew recovered the slug.

MPD Sergeant Timothy Cortright responded to Officer Cunningham's radio call and successfully obtained a description of Grace's assailant from Grace. MPD Officer Todd Arechiga also responded to the call and found Di Giovanni lying on the grass next to the roadway in Rock Creek Park. Di Giovanni's clothing was wet and he was curled into a fetal position. Officer Arechiga testified that Di Giovanni told him three times that "[t]here's a man up there with a gun." Sergeant Cortright then appeared and determined that Di Giovanni matched Grace's description of his assailant. Di Giovanni was handcuffed and identified by Grace as the individual who shot him before being taken to the hospital by ambulance.

Di Giovanni was taken to the police station for interrogation, where he was handcuffed to a chair in the detective's room. Sergeant Cortright advised Di Giovanni of his rights and asked Di Giovanni if he understood them. Sergeant Cortright testified that when Di Giovanni replied that he did not fully understand the warnings, Sergeant Cortright repeated them "line by line, reading each line very slowly [and] making sure [Di Giovanni] was paying full attention" because Di Giovanni appeared "like he was possibly very slow." After confirming that appellant understood the warnings, Sergeant Cortright reviewed the waiver questions "one by one and made sure [Di Giovanni] understood each [one]." When Sergeant Cortright read question three, which states, "Are you willing to answer any questions," Di Giovanni asked whether he had to speak to the police, to which Sergeant Cortright answered, "No, you don't have to say anything to me at this time." When Sergeant Cortright read question four, which states, "Are you willing to answer questions without having an attorney present," Di Giovanni asked Sergeant Cortright whether he needed a lawyer at that point in time. Sergeant Cortright responded that he would need one later, but that at that time he did not think Di Giovanni needed one, and that it would not be feasible to bring a lawyer into the police station. Sergeant Cortright told Di Giovanni that if Di Giovanni said he wanted a lawyer, Sergeant Cortright would stop questioning him, but that "it would be best if [Di Giovanni] told [his] side of the story." Sergeant Cortright stated that because Di Giovanni was shaking from being wet and cold, he had to fill in the waiver of rights form for Di Giovanni, and Di Giovanni only signed his name.

After signing the form, Di Giovanni gave his side of the story to Sergeant Cortright. Di Giovanni first contended that a large white man had tried to talk to him on the P Street Bridge and then, for no reason, began to fire shots at him. When Sergeant Cortright showed disbelief at this version of events, Di Giovanni changed his story. Di Giovanni then stated that he had been approached by two black men. He stated that when he attempted to run away, the men chased him. One of them then grabbed him by the neck and asked if he was "afraid of black guys." Di Giovanni said he then fired several shots from his gun, removed the clip, reloaded and fired again. He stated that he had purchased the gun for protection and that it was registered in Maryland.

After Sergeant Cortright finished interviewing Di Giovanni, Detective Carew was brought in to take Di Giovanni's written statement. Detective Carew re-advised Di Giovanni of his rights before taking his statement. Following his statement, Di Giovanni led the officers to the location of the gun and ammunition, which were recovered that evening. The gun was later determined to be registered to him in Maryland. The bullet and casings discovered on the ground in P Street Beach and the bullet recovered from Grace's clothing were found to have come from Di Giovanni's gun.

II.

Di Giovanni argues that the trial court committed reversible error by denying his motion to suppress statements made to Sergeant Cortright because he did not properly waive his right to counsel under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Di Giovanni contends that because Sergeant Cortright inappropriately continued to interrogate him after he inquired about advice of counsel, his statements made after this inquiry should have been suppressed by the trial court.

When reviewing a challenge to the denial of a motion to suppress, this court defers to the trial court's findings of fact and all inferences derived therefrom unless they are clearly erroneous. See Anderson v. United States, 658 A.2d 1036, 1038 (D.C.1995)

; Lawrence v. United States, 566 A.2d 57, 60 (D.C.1989). This court must "view the record in the light most favorable to the party that prevailed in the trial court [and] must sustain any reasonable inference that the trial judge has drawn from the evidence." Morris v. United States, 728 A.2d 1210, 1215 (D.C. 1999) (citation omitted). The "trial court's underlying factual findings ... are reviewed under the `clearly erroneous' standard," and will be set aside only if they lack substantial support in the record. Id.

"In Miranda, the Supreme Court established that statements made by an accused while in police custody are inadmissible... unless the police prior to questioning, warn him that he `... has the right to the presence of an attorney ....'" In re M.A.C., 761 A.2d 32, 35 (D.C.2000) (citations omitted). The Supreme Court has articulated that, when evaluating a Miranda warning, "the inquiry is ... whether the warnings reasonably `conve[y] to [a suspect] his rights as required by Miranda,'" including the right to consult with an attorney before and during his interrogation and the right to terminate his questioning at any time until he speaks with an attorney. Morris, 728 A.2d at 1215.⁹ Though the accused may waive his rights provided by Miranda and provide a statement to the police, see In re M.A.C., 761 at 36, "[w]hen a defendant challenges the admissibility of such a statement, the government has the burden of proving that the waivers of privilege against self-incrimination and the right to counsel were made knowingly, intelligently, and voluntarily." Id. (citations omitted). The government must demonstrate that the defendant is warned and understands the basic touchstones of Miranda, including his right to an attorney. See United States v. Yunis, 273 U.S.App. D.C. 290, 301, 859 F.2d 953, 964 (1988)

. Thus, the government "bears a heavy burden to show: (a) that the defendant understood that in fact he had a right to the presence of counsel during an interrogation, ... and (b) that the defendant intentionally relinquished or abandoned that `known right.'" Shreeves v. United States, 395 A.2d 774, 778 (D.C.1978).

In order to determine whether Di Giovanni's waiver of his Miranda rights was made knowingly, intelligently, and voluntarily, we must examine "the particular facts and circumstances surrounding that [his] case" see Edwards v. Arizona, 451 U.S. 477, 480, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981),

and the totality of the circumstances. See In re M.A.C., 761 A.2d at 36. Among other factors, the trial court should consider "the defendant's prior experience with the legal system, the circumstances of the questioning,...