Hawkins v. United States, 82-492.

• Decision Date: 18 May 1983
• Docket Number: No. 82-492.,82-492.
• Parties: Dalton HAWKINS, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

461 A.2d 1025

Dalton HAWKINS, Appellant, v. UNITED STATES, Appellee.

No. 82-492.

District of Columbia Court of Appeals.

Argued March 17, 1983.

Decided May 18, 1983.

Scott Howe, Public Defender Service, Washington, D.C., with whom Franklin Burgess, Jr., Public Defender Service, Washington, D.C., was on briefs, for appellant. William J. Mertens, Public Defender Service, and W. Gary Kohlman, Public Defender Service, Washington, D.C., also entered appearances for appellant.

Mary A. McLaughlin, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty. and Michael W. Farrell, John R. Fisher, F. Joseph Warin, and William D. Nussbaum, Asst. U.S. Attys., Washington, D.C., were on brief, for appellee.

Before NEWMAN,^* Chief Judge, and KERN and FERREN, Associate Judges.

KERN, Associate Judge:

On July 28, 1978, appellant, a taxicabdriver, shot and killed another motorist following a traffic dispute. Appellant was convicted after a jury trial¹ of second degree murder while armed, D.C.Code §§ 22-2403, -3202 (1981), and carrying a pistol without a license, id., § 22-3204. At trial, appellant" admitted that he shot the decedent, but contended that he had done so in self-defense.

Appellant now seeks reversal of his convictions because of the trial court's failure to suppress statements he made to the police after his arrest. He maintains that those statements (telling the police that he acted in self-defense) were obtained in violation of his Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and its progeny. He also asserts error in certain of the trial court's evidentiary rulings and instructions to the jury. Finding no error, we affirm the convictions.

I.

A hearing was initially held on appellant's motion to suppress in October 1980. See footnote 1, supra. At that hearing, the circumstances under which the challenged statements were given were explained as follows.

Appellant was arrested at his home at about 3:30 p.m. the day after the shooting and was immediately advised of his Miranda² rights from a standard PD 47 "rights card." (Supp. Record I at 71-72.) He orally acknowledged that he understood his rights. He was then searched, handcuffed, and transported to the homicide office; there was no conversation en route. (Supp. Record I at 73-74.) Upon his arrival at the homicide office, appellant was seated in an interview room and again was advised of his Miranda rights. (Supp. Record I at 76.) Appellant stated that he did not wish to talk and, after reading a PD 47 card, responded in the negative to the last two questions on the back of the card.³ It was 3:55 p.m. when appellant signed the card. (Supp.Record I at 78.)

The two homicide detectives who were with appellant then left the interview room. One of them asked Sergeant Robert Sharkey, who was in charge of the homicide office at the time, to "process" appellant, viz., to prepare the necessary police forms. (Supp. Record I at 92.) He informed Sharkey that appellant had said he did not wish to answer any questions; and he asked Sharkey to "tell [appellant] the facts of the case." (Supp. Record I at 93, 125.)

Sergeant Sharkey then familiarized himself briefly with the case and, at approximately 4:05 p.m., moved appellant to another interview room, introduced himself to appellant, and told appellant he was going to "process" him. (Supp. Record I at 94-95, 135-36.) At that point, Sergeant Sharkey also told appellant that "he was here on a charge of homicide in reference to a shooting that had occurred on the prior date at 9:30 p.m., and that an investigation revealed that he was responsible." (Supp. Record I at 96.) Sharkey then began to type one of the police reports.

Within just minutes, at approximately 4:15 p.m., appellant stated that "he had been thinking it over and he decided that he wanted to get it off his chest." (Supp. Record I at 97-99.) Appellant was then advised of his Miranda rights a third time; and he signed a waiver of his rights on another PD 47 card. He then gave Sergeant Sharkey his version of the events leading up to the shooting, and Sergeant Sharkey asked him some clarifying questions. (Supp. Record I at 101-02.) At approximately 4:30 p.m. appellant was again readvised of his Miranda rights and was asked why he had changed his mind and decided to give a statement. According to Sergeant Sharkey, appellant replied: "I had a few minutes to think it over, and because I have never been in this type of situation, I did not know what to do or say. But after thinking it over, I want to tell the truth. I felt that the man was going to kill me. He said that he was. And that is why I shot him." (Supp. Record I at 107, 111.)

The trial court considered the evidence adduced at the suppression hearing, and the arguments of counsel, in light of Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975), and Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), and ruled that:

[T]he Government has met its burden in that regard. I am satisfied that the police procedure from all the evidence that I have heard was fair and that . . . it was nothing the police did that would cause [appellant] to make those statements.

(Record at 167.) The court also ruled that, despite appellant's recurring psychiatric problems,

the Court believes that the evidence does show that the waiver was voluntary and I am satisfied that [appellant] was competent to make a voluntary waiver of his rights. . . . The motion to suppress is denied.

(Record at 168.) Before the trial which finally resulted in the convictions now on appeal, a second trial judge denied a motion for reconsideration in light of Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), noting that the trial court had found no new police interrogation of appellant once he asserted his Miranda rights and no "procurement" of appellant's statement by the police. (Supp. Record IV at 28-29.)

On appeal it is argued that Sergeant Sharkey's statement to appellant — that "an investigation revealed that he was responsible" for shooting the decedent — constitutes interrogation within the meaning of Rhode Island v. Innis, supra. Since his Miranda rights had previously been asserted, appellant argues, and since the police thereafter initiated further conversation with him which amounted to an interrogation of him, viz., telling him that an investigation showed his responsibility for the killing, his subsequent statements were per se inadmissible under Edwards v. Arizona, supra. Alternatively, he contends that the police did not "scrupulously honor" his assertion of his right to remain silent in accordance with Michigan v. Mosley, supra, and that, because of his mental illness, he did not knowingly and intelligently waive his Miranda rights even if, as the trial court found, his waiver was voluntary and he was competent to make it.

II.

The record in this case amply supports the trial judge's conclusions that appellant's Miranda rights were "scrupulously honored" and that his statements to the police were not the product of an interrogation by Sergeant Sharkey,⁴ but were made spontaneously and voluntarily and were preceded by a fully effective waiver of appellant's rights.

We are concerned in this case with a "second level" of Miranda rights: those which attach where, as here, a suspect has asserted his right to remain silent and/or his right to consult an attorney. See United States v. Alexander, 428 A.2d 42, 47-48, reh. den., 441 A.2d 936 (D.C.1981); Calaway v. United States, 408 A.2d 1220 (D.C.1979); Jackson v. United States, 404 A.2d 911 (D.C. 1979).

The Court in Miranda stated that "interrogation must cease" when the person in custody indicates that "he wishes to remain silent," and that "[i]f the individual states that he wants an attorney, the interrogation must cease until an attorney is present." 384 U.S. at 473-74, 86 S.Ct. at 1627-28. The Court also stated that "any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise." Id. at 474, 86 S.Ct. at 1628.

However, in Michigan v. Mosley, supra, the Court explained that the language in Miranda quoted above does not impose a per se prohibition upon all police questioning of a suspect in custody, or the taking of a voluntary statement, after the right to remain silent has been invoked. The Court concluded that the test for admissibility of statements obtained after an individual has asserted the right is "whether his `right to cut off questioning' was `scrupulously honored.' " Mosley, supra, 423 U.S. at 104, 96 S.Ct. at 326, quoting from Miranda, supra, 384 U.S. at 474, 479, 86 S.Ct. at 1627, 1630. We have applied the same standard to determine the admissibility of statements obtained after the right to counsel has been asserted. E.g., United States v. Alexander, supra, 428 A.2d at 49; Peoples v. United States, 395 A.2d 41 (D.C.), cert. denied, 442 U.S. 911, 99 S.Ct. 2826, 61 L.Ed.2d 277 (1978).

The context in which Miranda rights attach is that of custodial interrogation. Appellant relies heavily upon United States v. Alexander, supra, in his argument that Sergeant Sharkey's remarks to appellant in the instant case constituted custodial interrogation. In Alexander, immediately after an individual in custody had asserted her Miranda right to counsel, the interviewing detective followed up with the statement "we know what happened" or "we know you are responsible for the stabbing." Id. at 51. We held in Alexander that the officer had continued to interrogate the suspect after assertion of her rights and that her rights were therefore not "scrupulously honored."

The interviewing officer in Alexander had conceded at a suppression hearing that his statement was "a technique" he used to try to get the suspect to talk. In Alexander we stated that we viewed the officer's admission as ...