Dorsey v. United States, No. 06-CF-1099.
| Decision Date | 19 August 2010 |
| Docket Number | No. 06-CF-1099. |
| Citation | 2 A.3d 222 |
| Parties | James A. DORSEY, Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Mikel-Meredith Weidman, Public Defender Service, with whom James Klein and Samia Fam, were on the brief, for appellant.
Elizabeth H. Danello, Assistant United States Attorney, with whom Jeffrey A. Taylor, United States Attorney at the time the brief was filed, and Roy W. McLeese III, Mary B. McCord, and Jonathan Haray, Assistant United States Attorneys, were on the brief, for appellee.
Before REID, GLICKMAN and THOMPSON, Associate Judges.
The government concedes that during the first phase of police interrogation of appellant, James A. Dorsey, “the police violated the prophylactic rule articulated in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981)” by not stopping the interrogation when Mr. Dorsey invoked his right to counsel after having initially waived his Miranda rights. This case requires us to determine, primarily, (1) whether Mr. Dorsey initiated conversation with the police that resulted in his confession during the second phase of the interrogation; and (2) whether the trial court properly determined that, before the second phase of interrogation, he knowingly and intelligently, and voluntarily waived his rights under Edwards. 1 We affirm the judgment of the trial court.
The record shows that Mr. Dorsey's conviction was based on his May 3, 2005 assault and robbery of Vassiliki Fotopoulous, an 83-year-old limited English-speaking street vendor, who sold merchandise outside a subway station located in the Northwest quadrant of the District of Columbia. As Ms. Fotopoulous proceeded to her nearby apartment house while pushing a cart containing her vending items, Mr. Dorsey struck her and she fell to the ground. When she would not give him her money, Mr. Dorsey kicked her several times, causing “excruciating pain,” and he removed about $300 from her person. Ms. Fotopoulous did not recall all of the details of the assault but remembered both seeing her children at the hospital and being in a lot of pain, especially “excruciating pain” in her leg. Theodora Kunec, Ms. Fotopoulous's daughter, testified that she saw her mother in the emergency room of the hospital on May 3, 2005. Her mother's “eyes were swollen and ... blue”; her face was swollen; “the whole body had blood everywhere”-nose, mouth; “her head had bumps all over”; “she was moaning, and she was in horrible pain.” Four persons identified Mr. Dorsey as the perpetrator after viewing a surveillance tape depicting the attack. 2
After Mr. Dorsey's arrest on another charge on May 7, 2005, he waived his Miranda rights at about 8:30 p.m., and the police interrogated him about the attack and robbery of Ms. Fotopoulous. Parenthetically, the record shows that Mr. Dorsey is a high school graduate, worked at a liquor store, had ten prior convictions, and has been arrested on more than thirty occasions. Mr. Dorsey spent approximately twelve or thirteen hours in the interview or interrogation room-from Saturday evening, May 7, until about 8:30 or 9:00 a.m. the next morning. He sat alone for several hours of that time. 3 During this first phase of the police interview, several members of the Metropolitan Police Department (“MPD”) interrogated Mr. Dorsey. They ignored his repeated efforts to terminate the interrogation, specifically his statements that he wanted to tell his story in court; he wished to go to his cell so he could sleep; he needed to talk to a lawyer; he was waiting to be charged; and he did not want to talk. Despite the officers' persistence in posing questions to him and their rigorous interrogation using tactics designed to persuade a suspect to talk and to confess, Mr. Dorsey never made a statement that implicated himself in the crimes committed against Ms. Fotopoulous. The officers took him to a cell around 8:30 a.m. on May 8.
According to the testimony of Detective Michael Ross, an apparently unidentified officer heard Mr. Dorsey banging on his cell in the afternoon around 3:30 or 4:30 p.m. “At some point, a detective overheard [Mr. Dorsey] say that he wanted to speak to Detective Ross, that he wanted to confess.” Mr. Dorsey was returned to an interview or interrogation room. As he sat there, MPD Officer Joseph Crespo, whom he knew, passed by. According to Officer Crespo's testimony, Mr. Dorsey said: This encounter between Officer Crespo and Mr. Dorsey was not videotaped. Officer Crespo asserted that he was not aware of how long Mr. Dorsey had been interrogated before he arrived for work on May 8, 2005. Nor did he know whether Mr. Dorsey “had waived or invoked” his right to counsel.
Nevertheless, Officer Crespo and Sergeant James T. Young, who was scheduled to question Mr. Dorsey that afternoon, interviewed Mr. Dorsey together. They did not reiterate the Miranda warnings. The DVD of the second phase of the interrogation shows Mr. Dorsey handcuffed to a chair and Officers Crespo and Young seated at the table with him. As the recording began, Officer Crespo told Mr. Dorsey:
As I walked by just now you called out to me. You obviously said you wanted to talk about this. O.K.? We are going to want for you to be specific. We want you to tell us the story first. Tell us exactly what happened. Then we have some questions for you. So tell us what happened.
When Officer Crespo declared, “[y]ou obviously said you wanted to talk about this,” Mr. Dorsey did not respond either verbally or by body movement to signify yes or no; he simply sat there.
Once Officer Crespo finished his remarks, Mr. Dorsey began to talk about the incident, without hesitation. About a week before the attack on Ms. Fotopoulous, Mr. Dorsey had asked her to change a $20 bill but she told him to get away from her vending stand. On the day of the attack, a man, who apparently had witnessed the earlier exchange, asked Mr. Dorsey why he had let Ms. Fotopoulous treat him that way. Mr. Dorsey then approached Ms. Fotopoulous and asked her for money. She rebuffed him. He walked down the street, waited for her, and asked for money when she appeared. When she failed to hand over her money, he shoved her to the ground, and kicked her before taking her money. Mr. Dorsey demonstrated how he assaulted and took money from Ms. Fotopoulous. Officer Crespo pressed for more details, saying “you've admitted it; it's not going to get worse.” Mr. Dorsey provided more details and he stated several times that he did not know the woman he assaulted and robbed was “that old.” Eventually, the officers ceased their questioning so that Mr. Dorsey could eat and smoke a cigarette.
After more questions following Mr. Dorsey's meal, Officer Crespo commented that he has known Mr. Dorsey “for a long time” and “appreciate[d] Mr. Dorsey's talking to [him and Officer Young].” Just before his bathroom break, Mr. Dorsey said he did not “want a lot of charges,” and that he would “take the robbery” charge. Officer Crespo responded, in part: Mr. Dorsey reiterated that he did not “need a whole lot of charges” and that he would “take the robbery plea.”
Mr. Dorsey challenges the trial court's admission of his videotaped confession into evidence; he claims that despite his explicit request to speak to a lawyer, the government failed to scrupulously honor that request. Instead, he maintains, the police continued to badger him and tried to extract a confession during the first day and night of questioning. He contends that his request to speak with detectives on the second day cannot be regarded as an “initiation” under Edwards, because “a suspect cannot be said to have validly ‘initiated’ contact with police when he asks to speak with them after they have violated Edwards by badgering him to confess.”
The government “agree[s] that the police violated the prophylactic rule of Miranda ..., and Edwards ..., when, in the first phase of their interrogation, they questioned [Mr. Dorsey] after he asserted his rights.” But the government insists that Mr. Dorsey's “decision to renew the conversation [with the police] and confess did not result from any police coercion” since “[t]he police had not engaged in oppressive conduct overbearing [Mr. Dorsey's] will.” In addition, the government contends, “any improper pressure had dissipated by the time of the second interview,” and Mr. Dorsey confessed “because he felt remorse and wanted to ‘get it off [his] chest.’ ”
Contrary to the government's argument, Mr. Dorsey asserts that “the detectives' constitutionally improper conduct ‘played the dominant role’ in eliciting [his] confession,” and that the real reason he decided to speak with the detectives the following day was not remorse. Rather, “he decided to talk because [Detective] Crespo promised him leniency-an incentive that aligned with the advice that he should plead guilty to ensure that it would be a ‘straight robbery’ and the threat that refusing to talk would result in greater charges.”
The trial court determined that “there [was] a significant break in the questioning” when Mr. Dorsey was taken to “a different location” (a cell) so that he could sleep. The court credited the testimony of Officers Ross and Crespo about Mr. Dorsey's initiation of contact with the police after he had slept, and discredited the assertions of Mr. Dorsey that he did not ask to talk to the police on the afternoon of May 8, and that he confessed because Officer Crespo said he would help him out. The judge specifically found Officer Crespo to be a “very credible witness,” and noted that Mr. Dorsey...
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