Dorsey v. United States, 06–CF–1099.

• Decision Date: 03 January 2013
• Docket Number: No. 06–CF–1099.,06–CF–1099.
• Citation: 60 A.3d 1171
• Parties: James DORSEY, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

60 A.3d 1171

James DORSEY, Appellant,

v.UNITED STATES, Appellee.

No. 06–CF–1099.

District of Columbia Court of Appeals.

Argued En Banc June 22, 2011.

Decided Jan. 3, 2013.

Samia Fam, Public Defender Service, with whom James Klein and Mikel–Meredith Weidman, Public Defender Service, were on the brief, for appellant.

Elizabeth H. Danello, Assistant United States Attorney, with whom Ronald C. Machen Jr., United States Attorney, Roy W. McLeese III, Assistant United States Attorney at the time the brief was filed, and Mary B. McCord and Jonathan W. Haray, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, GLICKMAN, BLACKBURNE–RIGSBY, THOMPSON, and OBERLY, Associate Judges, and REID ^* and RUIZ, ^** Senior Judges.

GLICKMAN, Associate Judge:

Appellant James Dorsey was convicted after a jury trial of assaulting and robbing an elderly street vendor.¹ The videotape of Dorsey's confession, introduced at his trial by the prosecution in its case-in-chief, was the most compelling evidence against him. In this appeal, Dorsey contends the trial court erred in admitting the confession.

While he was in police custody, Dorsey endured a grueling overnight interrogation during which, as the government concedes, detectives violated the rules of Miranda v. Arizona² and Edwards v. Arizona³ by continuing to press him to confess after he invoked his Fifth Amendment rights—both his right to cut off further questioning and remain silent, and his right to have counsel present during his questioning. As of 8:30 in the morning, when the detectives returned Dorsey to his holding cell, he still had not incriminated himself. Approximately seven hours later, however, Dorsey called out from his cell and asked for a second meeting with the detectives, saying he wanted to confess. He proceeded to do so without explicitly waiving his constitutional rights.

Prior to trial, Dorsey moved to suppress his confession. His motion was denied. The motions judge concluded that, notwithstanding the Miranda and Edwards violations, Dorsey validly initiated his second meeting with the detectives and waived his rights. The judge found that Dorsey was motivated to confess by feelings of remorse.

In a two-to-one decision, a division of this court upheld the admission of Dorsey's confession and affirmed his convictions.⁴ The division majority agreed with the government that Dorsey's confession was obtained in compliance with the dictates of Miranda and Edwards. The dissent disagreed, arguing that Dorsey's initiation and waiver were invalid because he had been badgered into giving up his rights.

On March 25, 2011, in recognition of the important and difficult questions posed in this case, the full court granted Dorsey's petition for rehearing en banc and vacated the division's opinion and judgment. We are called on in this appeal to apply the rule announced in Edwards that a suspect in police custody who has invoked his Fifth Amendment right to counsel may not be interrogated further unless the suspect initiates the conversation with the police and waives his Miranda rights knowingly, intelligently, and voluntarily. To do so, we must clarify the requirements for finding a valid initiation and waiver and decide whether those requirements were satisfied here despite the Miranda and Edwards violations in the interrogation that preceded Dorsey's confession.

As to the initiation, it was the government's burden to show that Dorsey's request to resume speaking with the police was not the product of the improper post-invocation badgering to which he had been subjected. Similarly, it was the government's burden to establish that Dorsey waived his Fifth Amendment rights knowingly, intelligently, and voluntarily even though the detectives had thwarted his repeated efforts to terminate his interrogation and have an attorney present. We conclude that the government failed to show that the initiation and waiver requirements of Edwards were satisfied in this case.

Accordingly, we reverse Dorsey's convictions and remand this case for a new trial.

I. Factual Background

The charges against Dorsey arose out of the robbery of 83–year–old Vassiliki Fotopoulous, a street vendor in Foggy Bottom, on May 3, 2005. The robbery was caught on videotape by a surveillance camera. The tape, which was broadcast on local television stations, showed a man confronting Fotopoulous in the loading dock of her apartment building, knocking her down, kicking her while she was on the ground, searching her pockets, and then leaving the scene. The man's face was not clearly visible on the tape, but after viewing the broadcast, persons who knew Dorsey reported that they recognized him as Fotopoulous'sassailant based on the man's gestures and clothing.⁵

Dorsey was arrested on the evening of May 7, 2005, on an unrelated domestic violence complaint. He attempted to flee when the police tried to apprehend him, and when he was stopped, he reportedly said, “[t]hat's me on TV.” ⁶ Dorsey matched the physical description that Fotopoulous had provided of her attacker. He was brought to the Second District police station and placed in an interrogation room. There he remained, handcuffed to his chair except when he was allowed to use the bathroom, for the next thirteen hours. For much of that time, amounting to some nine to ten hours in all, Dorsey was left alone in the room, but at intervals throughout the night and into the early morning, four investigators—lead Detective Michael Ross and Detectives Joseph Crespo, Keith Tabron, and Robert Thompson—took turns interrogating him. They continued to do so despite Dorsey's calls for a halt to the questioning and his requests for a lawyer. Finally, the next morning, they moved Dorsey, who still had not incriminated himself, to a holding cell, where he was allowed to rest pending the anticipated resumption of his interrogation on Sunday afternoon. Approximately seven hours later, before the detectives returned to question him again, Dorsey asked to talk to the police, saying he wanted to confess. He was brought back to the interrogation room. There he admitted to Crespo and a fifth investigator, Sergeant James Young, that he had robbed Ms. Fotopoulous.

Dorsey moved to suppress his confession as having been taken in violation of his Fifth Amendment rights. After a hearing before Judge Gardner, at which the detectives and Dorsey testified and the recordings of Dorsey's interrogations were introduced, his motion was denied. The government introduced the hour-long tape of Dorsey's confession in evidence against him at trial.

Given the nature of the legal issues before us, it is necessary to describe Dorsey's interrogations in considerable detail.⁷

A. Inception of the Interrogation: Dorsey Waives His Rights and Is Questioned About His Girlfriend's Domestic Violence Complaint

Dorsey's interrogation commenced at about 7:30 p.m. on Saturday night. Detective Ross informed Dorsey that he was there to be questioned, “initially,” about an incident involving his girlfriend, Diane Bush. Ross would not “go into it,” he said, until after he had advised Dorsey of his rights and Dorsey had had something to eat. Ross inquired whether Dorsey was under the influence of drugs or alcohol. Dorsey responded that he had been drinking and said he last had consumed alcohol—two cans of beer—at around 10:00 a.m. that morning. Ross confirmed that Dorsey was not drunk and understood “everything we're talking about.” Detective Crespo, whom Dorsey had known for “a long time,” brought in some food from McDonald's. Ross and Crespo then left Dorsey alone so he could eat.

At 8:25 p.m., Ross returned with Detective Tabron. Ross introduced Tabron as the detective who would tell Dorsey why he was being charged after they advised him of his Miranda rights. Dorsey read through the standard PD–47 advice-of-rights card, commented that he was “used to” it, ⁸ and agreed to answer the detectives' questions without a lawyer present. Tabron then started asking Dorsey about his girlfriend. Dorsey said he did not want to talk about her, but Tabron explained that “the reason I'm here” was to investigate the report of an altercation between Dorsey and his girlfriend on May 3. Neither then nor for some time thereafter did the detectives mention the robbery of Ms. Fotopoulous.

Disregarding Dorsey's expressed wish not to talk about his girlfriend, ⁹ Tabron and Ross proceeded to ask him numerous questions relating to the domestic violence report. After a while, however, Ross started questioning Dorsey about where he was at the time of the Fotopoulous robbery on May 3 and the clothing he was wearing that day. Dorsey denied having been in Foggy Bottom or having camouflage pants or other clothing of the type worn by Fotopoulous's assailant. He stuck with those denials even when Ross told him he had witnesses who contradicted him, showed him a still photo from the surveillance video of the robbery,¹⁰ and said that DNA had been deposited at the location of “this assault down in Foggy Bottom.” ¹¹ Ross repeatedly accused Dorsey of lying. He observed that Dorsey was “sweating like a son of a gun”; Dorsey explained that it was because he was an alcoholic and had not had anything to drink since that morning.

At one point, Ross suggested that he could have someone take a sample of Dorsey's DNA to compare it with the “DNA that was left on the scene.” ¹² Dorsey responded that he would be willing to do that if he had a lawyer. Saying he might be able to get a lawyer for Dorsey, Ross, accompanied by Tabron, left the room. While they were out, Crespo came in and talked with Dorsey for a few minutes.

Dorsey, expressing frustration at what Ross and Tabron were “trying to do,” asserted to Crespo that he had been telling the truth about not having been in the Foggy Bottom area. Crespo responded that when he and his partner saw “that video,” they “thought it's got to be [Dorsey].” After...