Spencer v. United States

• Decision Date: 03 March 2016
• Docket Number: 13–CF–0096,Nos. 13–CF–0085,13–CF–0105.,s. 13–CF–0085
• Parties: Theodore R. SPENCER, et al., Appellants, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

132 A.3d 1163

Theodore R. SPENCER, et al., Appellants,

v.UNITED STATES, Appellee.

Nos. 13–CF–0085

13–CF–0096

13–CF–0105.

District of Columbia Court of Appeals.

Argued Oct. 1, 2015.

Decided March 3, 2016.

Thomas D. Engle, with whom Sharon Burka was on the brief, for appellant Theodore Spencer.

Joshua Deahl, Public Defender Service, with whom Christine A. Monta, James Klein and Samia Fam, Public Defender Service, were on the brief, for appellant Terrell Wilson.

Craig N. Moore, Providence, RI, for appellant Phillip Charles Swan.

James A. Ewing, Assistant United States Attorney, with whom Ronald Machen Jr., United States Attorney at the time the brief was filed, and Elizabeth Trosman, Chrisellen R. Kolb, Vinet Bryant, and Michelle Bradford, Assistant United States Attorneys, were on the brief, for appellee.

Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and PRYOR, Senior Judge.

PRYOR, Senior Judge:

Appellants Theodore Reginald "Reggie" Spencer, Terrell Wilson, and Phillip Swan appeal their convictions stemming from events that occurred over two days in June 2011, which culminated in the brutal killing of Mr. Glenn Scarborough. Each appellant challenges his convictions on multiple grounds; we address each in turn. Appellants argue that in the event of affirmance by this court, merger is necessary for some of their convictions, and the government agrees. We affirm, in part, and remand for merger of certain convictions in accordance with this opinion.

I. Facts

In June 2011, Sharon Spencer was in Georgetown University Hospital dying from cancer. Her son, Reggie Spencer, at least partially blamed his mother's longtime companion, Glenn Scarborough, for his mother's worsening condition. Scarborough and Sharon Spencer had a complicated relationship that included drug use, prostitution, and physical abuse.

On Friday, June 17, 2011, appellant Spencer received a telephone call from his grandmother notifying him that his mother's condition was not good, and that he should come see her at the hospital. Spencer, who lived in Orange County, Virginia, was accompanied to Georgetown Hospital by his sister Jasmine Spencer,¹ appellants Wilson and Swan, Devon Horner, and Heather Swan. Spencer drove the group from Culpeper, Virginia to the District in Swan's car. At the hospital, Spencer and his sister Jasmine visited their mother in her hospital room. After the visit, Spencer was "upset, distraught, and crying." Spencer told the group that he wanted to go to Mr. Scarborough's house and "beat up him up." The group departed the hospital and, utilizing the car's global positioning system, Spencer drove the group in Swan's car to Scarborough's house. When they arrived, Spencer, Wilson, and Homer exited while Swan, Heather, and Jasmine remained in the car. Spencer knocked and Scarborough answered the door naked. Appellant Wilson, who had a gun, ordered Scarborough to get on the floor. Thereafter, Spencer and Wilson tied Scarborough up and beat him, leaving him tied up and naked on his basement floor. When the three returned to the car, approximately ten to fifteen minutes after they had left, they had a small black bag and were counting money from it. The six all drove back to Virginia together.

Early in the morning on June 18, 2011, Terrance Dupree, Scarborough's upstairs neighbor, heard Scarborough shouting for help outside of Dupree's front door. Upon opening it, Dupree found Scarborough naked with his hands tied behind his back. Dupree brought Scarborough to the kitchen where he used a knife to cut the rope and free Scarborough's hands. Scarborough told Dupree that he had been robbed but did not call the police.

Later in the day on June 18, 2011, Spencer, Wilson, and Swan were together again, along with Heather and Jasmine, when Spencer received another phone call from his grandmother summoning him to the hospital. Again, the group rode to Georgetown Hospital in Swan's car, with Spencer driving.² Spencer and Jasmine again visited with their mother in her hospital room while the others waited. This time, Sharon Spencer had worsened; she was unresponsive, and after their visit appellant Spencer was angry and wanted to return to Scarborough's house. Again, the group drove in Swan's car to Scarborough's house. This time, all but Heather got out of the car. Jasmine knocked and Scarborough answered the door. At first, the group discussed picking up some of Sharon Spencer's belongings but soon the situation escalated and Scarborough called Jasmine a vulgar term. At that time, Spencer told Jasmine to go back to the car. Jasmine complied, and on her way out, she heard Scarborough say, "ah shit, not this again" and saw Swan and Wilson kicking and punching Scarborough as Spencer choked him.

About ten minutes later, the three appellants came back to the car where Jasmine and Heather were waiting. Spencer was wearing gloves and holding a bloody knife. Wilson said, "He's not going to hurt your mom no more." Spencer drove the group back to Orange County, Virginia; on the way, the knife and bloody gloves were thrown out of the window. The next day, the group was together again when they saw a news report about Scarborough's murder. Spencer and Swan admitted to Heather that they had killed Scarborough. Spencer told Jasmine that he had strangled and stabbed Scarborough while the others "beat him up."

On Sunday June 19, 2011, Scarborough was found face down in a pool of his own blood inside his basement apartment in Northeast Washington. His head and feet were wrapped with duct tape, a cloth was stuffed into his mouth, a belt was around his neck, and he had three superficial stab wounds. Mr. Scarborough had numerous abrasions and bruises, and he had ligature marks around his neck. The duct tape on his head obstructed his right nostril and the cloth in his mouth obstructed the other. The medical examiner determined that Mr. Scarborough died from asphyxiationdue to ligature strangulation and suffocation.

Following the killing, each of the appellants implicated himself in the crime. Appellant Swan exchanged incriminating text messages with a friend; that friend contacted the Metropolitan Police Department and identified Spencer and Swan as persons who were involved. The government obtained videotaped statements from each appellant implicating himself in the death, and both Spencer and Wilson implicated himself in the assault on the night prior. All three appellants took responsibility for duct taping Scarborough, and Spencer and Swan each said he threw the knife and gloves out of the car window during the ride home.

At trial, appellants Wilson and Swan did not present a case. However, Spencer testified to his role in the killing, saying that he put Scarborough in a chokehold for nearly two minutes, wrapped a belt around his neck and pulled until it broke, stabbed him three times in the neck, and wrapped the duct tape around both Scarborough's head and legs. Spencer testified that he was "in a rage" and had never "been as angry in his life." He also testified that neither Swan nor Wilson was involved in the killing.

The jury convicted the appellants as follows: for the events on June 17th Spencer and Wilson were found guilty of burglary, kidnapping, and simple assault. The jury also found Spencer guilty of robbery on June 17th. For the events on June 18th, the jury convicted Spencer, Wilson, and Swan of burglary and kidnapping. In addition, all three appellants were convicted of felony murder.³

II. Appellants' Statements to Police

Both Spencer and Wilson challenge the admission of their un-Mirandized statements. Spencer argues that his Fifth Amendment rights were violated when the court admitted his videotaped confession which was made during custodial interrogation without the benefit of Miranda warnings. Wilson argues that his Fifth Amendment rights were violated in the same way as Spencer's, but also that his statement was the product of an unlawful seizure in contravention of the Fourth Amendment.

The Fifth Amendment of the United States Constitution provides that "No person .... shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. In 1966, the Supreme Court established the now-familiar Miranda doctrine to "secure the privilege against self-incrimination." Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Miranda holds that in a criminal prosecution the government may not use statements obtained as a result of custodial interrogation unless the police first advise the accused of his Miranda rights and obtain a valid waiver. See id. Neither Spencer nor Wilson was advised of his Miranda rights and the government concedes that the questioning of both rose to the level of interrogation. Therefore, the crucial Miranda inquiry is whether the appellants were in custody when they gave their statements.

For Miranda purposes, the test for "custody" is whether a reasonable person in the position of the suspect would feel there was a restraint on her freedom of movement to the degree associated with formal arrest. See In re J.F., 987 A.2d 1168, 1175 (D.C.2010). The test is an objective one, and must take into account the totality of the circumstances. See id. Thus, a custody determination "requires an inquiry into whether given [the] circumstances, [ ] a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave." Id. (citations omitted). Whether or not a suspect was in Miranda custody is a question of law that this court reviews de novo. See id.

Appellant Spencer

Spencer argues that he was in custody for Miranda purposes at the time he gave his statement to police without the benefit of his Miranda rights, and that therefore, the trial court erred in admitting his statement.

Spencer first encountered the police in connection with the Scarborough murder when officers executed a search warrant on appellant Swan's home. Spencer was present during the execution of...