Tindle v. US, 98-CF-565.

• Decision Date: 16 August 2001
• Docket Number: No. 98-CF-565.,98-CF-565.
• Citation: 778 A.2d 1077
• Parties: Stevie TINDLE, Appellant, v. UNITED STATES, Appellee.
• Court: D.C. Court of Appeals

778 A.2d 1077

Stevie TINDLE, Appellant, v. UNITED STATES, Appellee.

No. 98-CF-565.

District of Columbia Court of Appeals.

Argued October 26, 2000.

Decided August 16, 2001.

David A. Singleton, Public Defender Service, with whom James Klein, Public Defender Service, was on the brief, for appellant.

Ann K.H. Simon, Assistant United States Attorney, with whom Wilma A. Lewis, United States Attorney, at the time the brief was filed, and John R. Fisher and Roy W. McLeese, III, Assistant United States Attorneys, were on the brief, for appellee.

Before REID and GLICKMAN, Associate Judges, and MACK, Senior Judge.

REID, Associate Judge:

In this case, we are asked to determine whether the trial court erred by denying appellant Stevie Tindle's motion to suppress an audio-taped statement given to the police after he signed a Prince George's County, Maryland police department waiver of rights form¹ indicating that he did not want to make a statement without the presence of a lawyer. No lawyer was present during police questioning when Mr. Tindle implicated himself in the stabbing death of Derrick Thrower. At trial, Mr. Tindle's defense was self-defense. Although he was acquitted of the charge of second-degree murder while armed, a jury found him guilty of the lesser included offense of voluntary manslaughter while armed, as well as the offense of carrying a dangerous weapon (knife).² He filed a timely appeal, primarily contending that, under Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), his audio-taped statement should have been suppressed because his Fifth Amendment right to counsel was violated.

We conclude, as the government candidly concedes, that the trial court erred by failing to suppress Mr. Tindle's audio-taped statement under Miranda/Edwards. In addition, we hold, contrary to the government's position, that Mr. Tindle preserved the claim of error and that, therefore, the constitutional harmless error standard governs Mr. Tindle's case. Finally, we reverse the judgment of the trial court because its error was not harmless beyond a reasonable doubt.

FACTUAL SUMMARY

Prior to trial, Mr. Tindle filed a motion to suppress his audio-taped statement. In his motion he argued, in part, that he "did not knowingly, intelligently and voluntarily waive his rights pursuant to Miranda, supra."

In addition, he maintained that the audiotape "must be excluded from evidence because the method through which [his] statement was obtained violated the prophylactic standards established to prevent compulsory self incrimination." Mr. Tindle also filed a supplemental motion to suppress, asserting, in part, that he "had not waive[d] either his Fifth Amendment right to remain silent or his Fifth Amendment right to counsel." The trial court denied the motions to suppress, and the case proceeded to trial.

The evidence presented at trial showed that Mr. Tindle, Debra White and Shawn Redfield were together, at an Exxon gas station near South Capitol Street and Martin Luther King, Jr. Avenue, in the South-west quadrant of the District, during the late evening hours of July 21, 1997, and the early morning hours of July 22, 1997. They ate and talked. In addition, Mr. Tindle smoked cigarettes, and Ms. White and Mr. Redfield used crack cocaine. While they were sitting at the Exxon station, Mr. Thrower, who was a friend of Mr. Redfield, approached the three.

The eyewitness accounts as to what happened next varied. However, Mr. Thrower and Mr. Tindle got into a heated argument, which soon turned into a struggle involving pushing and hitting. Ms. White observed Mr. Thrower pushing Mr. Tindle and hitting him in the chest. She saw Mr. Tindle "rock" toward Mr. Thrower twice. Mr. Thrower put his hands on his chest and ran. Blood was on his t-shirt. Mr. Thrower exclaimed: "You jacked me," and started to move toward Mr. Tindle. Mr. Tindle told him, "Get out of here, man." Mr. Redfield recalled that he pulled Mr. Thrower away from the argument, but that Mr. Thrower broke away, ran back to Mr. Tindle and began to argue again. Suddenly, Mr. Thrower ran back toward Mr. Redfield, saying that he had been stabbed.

In his audio-taped statement, which was played for the jury at trial and admitted into evidence, Mr. Tindle recounted his encounter with Mr. Thrower:

Me and two friends [were] sitting out[side] waiting for [a] car. [A] dude walked by and started talking trash to us.... We told him to go ahead and he went down the street and came back. [He] said, "y'all must know who I am, y'all don't know what I'm going to do to y'all." I was sitting in a squatting position and he sort of like took a swing at me and I backed up and before I knew it, I just stepped up and cut [him and] took off running.

Mr. Tindle was asked: "Where did you get the knife from?" He replied, "I don't remember." In response to the question whether Mr. Thrower had "any weapons on him," Mr. Tindle stated: "I don't know. I don't know."

Latisha Johnson, who reluctantly testified for the defense, was talking on a nearby telephone while observing, "ever so often," the altercation between Mr. Thrower and Mr. Tindle. She indicated that when Mr. Tindle intervened in Mr. Redfield's efforts to give Mr. Thrower a cigarette, Mr. Thrower threatened to "bust" Mr. Tindle, then pushed him, and said he had a gun. Mr. Tindle pushed Mr. Thrower, who fell backwards. Mr. Thrower proceeded to leave the scene. However, when Mr. Thrower ran back toward Mr. Tindle with one hand in his pocket, Mr. Tindle "pulled out his knife and stabbed [him]."³

ANALYSIS

Before determining whether the trial court erred by denying Mr. Tindle's motion to suppress his audio-taped statement because of a violation of his Fifth Amendment right to counsel, we set forth the pertinent factual background for this issue, taken mainly from the hearing on Mr. Tindle's motion to suppress and from his audio-taped statement. After Mr. Tindle was arrested in Prince George's County, Maryland, on August 10, 1997, Metropolitan Police Department Detective Oliver Garvey traveled to Maryland to question him. Detective Garvey arrived shortly before midnight, and spoke to Mr. Tindle beginning around 11:45 p.m. He told Mr. Tindle about the warrant for his arrest for murder. Mr. Tindle "took a deep breath and initially, he denied knowing anything about the incident." Detective Garvey "briefly explained to him that he was positively identified and that there are two sides to every story. And if he wanted to explain his side, that this was the opportunity to do so." Detective Garvey testified that, at that point, "Mr. Tindle began to cry, take some deep breaths, made some statements that it's been hard living with this."⁴ Detective Garvey stopped Mr. Tindle "to advise him of his rights." Mr. Tindle expressed the fear, "that he would get an overzealous United States Attorney who would not understand what had happened." Detective Garvey "expressed to him that he would have his day in court."

In executing the Maryland version of the waiver form, which is similar to that used in the District, Mr. Tindle initially checked "no" for the question: "Do you want to make a statement at this time without a lawyer."⁵ Detective Garvey "told him if you answer that no, I can't talk to you any more." Furthermore, the detective "said[,] take some time to think about whether you want to answer, think about that question."⁶ According to Detective Garvey, Mr. Tindle "[b]riefly [ ] thought about it on his own." He then changed his response to "yes," and initialed the change. In response to other questions on the waiver form, Mr. Tindle indicated that he was not "under the influence of drugs or alcohol at this time"; and that he had attended college for two years.

After the waiver form had been modified, Detective Garvey asked Mr. Tindle whether he could tape his statement. When Mr. Tindle acquiesced, Detective Garvey "gave him a few minutes to himself and [] explained to him what the conversation would be about."⁷ Detective Garvey then started the tape. As Mr. Tindle recounted what happened on the night of July 21, and the early hours of July 22, he and Detective Garvey were alone in the room. Mr. Tindle was crying and upset as he gave his statement. Defense counsel inquired: "Throughout the whole thing, Mr. Tindle appeared to be emotional?" Detective Garvey responded: "Yes, it was very traumatic, yes." In his audio-taped statement, Mr. Tindle said that he had been "shaky" since the incident, and that he was "scared." He mentioned his children "who ain't going to have a father," and began to cry.

During their arguments on the motion to suppress, both the prosecutor and the defense counsel re-visited the factual setting for Mr. Tindle's decision to change his answer as to whether he wanted to give a statement without a lawyer. Both made reference to Detective Garvey's statement that he could not talk to Mr. Tindle since he initially indicated that he did not want to make a statement without the presence of a lawyer. Both addressed whether the waiver was proper as to counsel, and whether Mr. Tindle's statement was voluntary.

With regard to Mr. Tindle's initial indication that he did not wish to make a statement without the presence of counsel, the trial court stated:

[C]ounsel knows the law. The law is clearly that once a person asks for a lawyer, the police officers, without [ ] the lawyer, without obtaining the lawyer[,] can't ask any more questions. The officer, I believe, acted reasonably in telling the defendant after he said or checked no, what the situation was, that he wouldn't be able to talk to him. . . . And I think that was correct. The defendant chose to change the answer. . . .

Thus, the trial court determined, in essence, that there was a proper waiver of counsel because: "The defendant chose to change the answer." Furthermore, the trial court...