Resper v. US
| Decision Date | 14 March 2002 |
| Docket Number | No. 97-CF-426, No. 99-CO-1655. |
| Citation | 793 A.2d 450 |
| Parties | Nathaniel RESPER, Jr., Appellant, v. UNITED STATES, Appellee. |
| Court | D.C. Court of Appeals |
Licha M. Nyiendo, appointed by the court, with whom Jeffrey T. Green, Washington, DC, was on the brief, for appellant.
Marc O. Litt, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney at the time the brief was filed, John R. Fisher, Elizabeth Trosman, and William M. Sullivan, Assistant United States Attorneys, were on the brief, for appellee.
Before WAGNER, Chief Judge, and TERRY and REID, Associate Judges.
Nathaniel Resper, Jr. was indicted for the shooting death of Everett Turner on March 12, 1994, in violation of D.C.Code §§ 22-2401, -3202 (1996). A jury found him guilty of the lesser included crime of second-degree murder while armed; possession of a firearm during the commission of a crime of violence, in violation of D.C.Code § 22-3204(b); and carrying a pistol without a license, in violation of D.C.Code § 22-3204(a).1
On appeal, Mr. Resper contends that the trial court committed reversible error in two of its rulings.2 First, he argues that the trial court violated his Fourth and Fifth Amendment constitutional rights by refusing to suppress statements that he made during a police interview on March 15, 1994, three days after the shooting. Second, he maintains that the trial court violated his constitutionally protected right to present a complete defense when it refused to allow him to present evidence that other persons had a motive to commit the murder with which he was charged. Detecting no violation of the Fourth and Fifth Amendments since the police made a permissible Terry3 stop of Mr. Resper and he was neither in custody nor interrogated on the day of the stop; and further, discerning no error in the exclusion of evidence regarding the motives of others to murder Mr. Turner, we affirm.4
The government's evidence and the trial court's findings show that on March 12, 1994, at about 12:20 p.m., Mr. Turner was in the front passenger seat of a Ford Taurus station wagon driven by Ms. Kisha Harley, the mother of his two children. The car had stopped for a red light at Fifth Street and Rhode Island Avenue in the Northeast quadrant of the District of Columbia. Suddenly, a man ran up to the passenger side window and shot nine bullets into Mr. Turner's body. Ms. Harley saw the shooter's torso, but was unable to see his face from her vantage point. The shooter fled. Ms. Harley immediately drove the car to Providence Hospital, where Mr. Turner was pronounced dead.
On the same day of Mr. Turner's murder, a man drove into the parking lot of a nearby fire station where gunshots had been heard moments earlier. The motorist explained to two firemen that he had just witnessed a shooting. He described a blue '82 Oldsmobile Cutlass and gave a license tag number, 650-646, which one of the firemen wrote down. The firemen did not obtain the motorist's name or any other information, and the motorist left quickly. Also on the same day, an unidentified person called 911 at 12:28 p.m. and said that he had witnessed someone getting out of a '77 blue or black Monte Carlo and firing shots into a Taurus station wagon. A partial license number was given which was consistent with that recorded by the fireman. Based on the information provided by these two individuals and subsequent investigation, the police determined that the license number belonged to a '82 Pontiac Grand Prix registered to Mr. Resper.5
Three days after Mr. Turner's murder, a United States Park Police officer saw the car bearing the license number 650-646. Park Police notified Detective Pamela M. Reed of the Metropolitan Police Department who had been assigned as the lead detective in the investigation of Mr. Turner's murder; and they also staked out the car. Near the scene were approximately four police cruisers and two unmarked police vehicles. Detective Reed was in one of the unmarked vehicles, about two blocks away from Mr. Resper's vehicle. When police officers saw Mr. Resper approach the car and drive it away, they stopped it "a short distance from where it had been parked." In addition to Mr. Resper, the car was occupied by Mr. Eli Alexander. "With their weapons drawn, the officers directed the two individuals to step out of the vehicle." Both men acquiesced, and "were patted down for weapons."
Detective Reed testified that she was not present when the stop took place, but she arrived "almost immediately" thereafter. Including Detective Reed's, "at least four or five" police cars—"there could have been one or two more"—participated in the stop of Mr. Resper's car. She "saw Mr. Resper standing next to a U.S. Park Police officer near a marked police car." Mr. Resper had been frisked for weapons, but he was not handcuffed when she arrived, nor was he handcuffed at any point afterwards, to her knowledge. Detective Reed told Mr. Resper that his car was being impounded because of the reports that it had been involved in Mr. Turner's murder. She requested that he accompany her to the police station for questioning. She explained her desire to speak with him concerning "information she had that linked his vehicle to a crime, and that he was not under arrest."6 Furthermore, "[s]he said that she was interested in tracing the movements of his car on that date and was interested in whatever information Mr. Resper could provide in that regard." He agreed to speak with Detective Reed, as did Mr. Alexander. When asked on cross-examination whether Mr. Resper was then a suspect, Detective Reed explained: On redirect, she explained:
According to the trial court's factual findings on remand, Detective Reed told Mr. Resper "that the police would seize his car . . . .," and that both men would be transported to her office in different cars. "She instructed the transporting officer that Mr. Resper was not under arrest and that he was not to be handcuffed."
After their arrival at her office, Detective Reed questioned the men separately. She told Mr. Resper that his car had been seen at the site of "the shooting of Everick (sic) `DJ' Turner." Mr. Resper said "that he knew `DJ' and that he had heard that some person shot `DJ' but denied that he was involved in the shooting." Mr. Resper provided the name of an alibi witness.
Mr. Resper's account of his stop on March 15th was at odds with that of Detective Reed. He testified that there were two or three police cars behind his car, two on each side of the intersection, a two truck and a helicopter flying above with a flashing light. Armed police officers ordered him to get out of his car, placed him on the ground with his face down, put handcuffs on him and searched his person. When Detective Reed asked whether he would speak with her at her office, he said he could not do it at that time. He requested her business card and telephone number, telling her he would "get back" to her. Detective Reed said she would find something on which to arrest him. Still in handcuffs, he was transported to the police station and handcuffed to a desk. He was at the station for three or four hours, and could not leave. At the time, he was represented by an attorney in another pending case. He advised Detective Reed that he had his attorney's business card in his pocket, but was not allowed to call him. Mr. Resper said that he had been with a woman at the Motel 8 on New York Avenue, not far from the crime scene, on the morning of March 12th. They left the motel at about 12:30 p.m., picked up Mr. Alexander, and drove to the nearby Wendy's for lunch. Then they drove to the woman's apartment, where Mr. Resper stayed for the rest of the afternoon; his car was parked outside of her apartment.7 During his questioning by Detective Reed, Mr. Resper declined to give a written statement, but agreed to be photographed.
Prior to trial, Mr. Resper moved to suppress the statements that he made during his questioning by Detective Reed. After hearing the matter, the trial judge credited Detective Reed's testimony, saying that "her demeanor on the witness stand caused the court to conclude that she was a credible witness." However, the court declared that Mr. Resper "was not, for the most part, a credible witness." The judge added, "this court did not and does not credit his testimony at any point where it was at variance with that of Detective Reed on any material issue."
In denying Mr. Resper's motion to suppress, the trial judge found that Mr. Resper and Mr. Alexander were at Detective Reed's office for less than one hour. Mr. Resper was not handcuffed, never asked that the interview be stopped, never requested a lawyer, and "was free to refuse to participate in the interview or to terminate the interview at any time." In addition, the trial court found that "both men departed Detective Reed's office" after the interview. Mr. Resper had had previous contact with the criminal justice system and had been informed of his Miranda rights on those occasions.8
The trial court also concluded that Mr. Resper "was not unlawfully seized at the time of the initial stop," and that "[t]he seizure of the vehicle and its occupants was reasonable, brief, minimally intrusive and, therefore, lawful." Furthermore, the trial court found:
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