United States v. Alexander

• Decision Date: 24 February 1981
• Docket Number: No. 80-116.,No. 79-1280.,79-1280.,80-116.
• Citation: 428 A.2d 42
• Parties: UNITED STATES, Appellant, v. Vivian ALEXANDER, Appellee.
• Court: D.C. Court of Appeals

428 A.2d 42

UNITED STATES, Appellant, v. Vivian ALEXANDER, Appellee.

No. 79-1280.

No. 80-116.

District of Columbia Court of Appeals.

Argued June 19, 1980.

Decided February 24, 1981.

John R. Fisher, Asst. U. S. Atty., Washington, D. C., with whom Charles F. C. Ruff, U. S. Atty., John A. Terry and

Charles L. Hall, Asst. U. S. Attys., Washington, D. C., were on the brief, for appellant.

William J. Mertens, Public Defender Service, Washington, D. C., with whom Silas J. Wasserstrom, Washington, D. C., Public Defender Service, was on the brief, for appellee.

Before NEWMAN, Chief Judge, and MACK and FERREN, Associate Judges.

MACK, Associate Judge:

At the request of the government, we review in this criminal case two pretrial orders,¹ one suppressing appellee's statements and the other directing production of a witness' grand jury testimony. Appellee is charged with murder in the second-degree while armed. At trial, she intends to show that she acted in self-defense. After a hearing and extensive briefs arguing alleged violations of appellee's Fourth and Fifth Amendment rights, the trial court concluded, under Miranda² and its progeny, that appellee's Fifth Amendment rights were not violated. However, the court suppressed the statements under the Fourth Amendment as the fruits of an unlawful arrest.³ In a separate order, pursuant to Super.Ct.Cr.R. 6(e)(2)(C)(i), the court ordered the government to disclose, three days before trial, the grand jury testimony of appellee's young daughter to allow defense preparation. For the reasons set forth in this opinion, we uphold the suppression order, but on Fifth Amendment rather than Fourth Amendment grounds.⁴ We reverse the discovery order because we find there is an insufficient showing of particularized need.

I.

The facts developed at the suppression hearing disclosed the following events. In the morning of April 13, 1979, the police responded to a call for a "woman down" at a given address. At approximately 10:00 a. m., an officer arrived to find an ambulance crew administering aid to a woman lying unconscious on the sidewalk. He learned from Ms. Alexander (appellee), standing nearby, that the victim lived with her and her children. Appellee, who appeared upset, said the victim had fallen down and cut herself. The officer did not realize the situation potentially involved a criminal act until the ambulance crew revealed the victim had been either stabbed or shot. At that point the officer alerted the Homicide Squad.

Homicide Detective Chaney arrived on the scene soon thereafter. He had first stopped at the hospital and learned that the victim had been stabbed and was in serious condition.⁵ He briefly spoke with appellee's two children (ages nine and seventeen) whom he described as "nervous and upset and . . . not being completely truthful." One said she knew nothing; the other refused to talk. He told them they would have to come to the station and make a statement about what they had seen happen inside their house. He did not tell them they were not required to go, or that a parent or adult could accompany them. He considered the only other adult living in the house, Ms. Alexander, a suspect and advised her orally of her Miranda rights.⁶

Detective Chaney directed that she be taken to the station for questioning, feeling that environment was more "conducive" to questioning. He did not advise Ms. Alexander that she was under arrest, nor did he consider her to be, although he did testify that he thought "she had no choice" in going to the station. Ms. Alexander was handcuffed and taken to police headquarters. The two daughters were taken to headquarters separately.

When Ms. Alexander arrived, she was taken by Homicide Detective Forbes to an interview room. Just as the interview was commencing, they were interrupted by another detective who had been questioning Ms. Alexander's daughters. Outside the interview room, Detective Forbes was told that one of the daughters had indicated that Ms. Alexander was the person responsible for the stabbing.⁷

Forbes reentered the room and informed appellee she was under arrest for assault with intent to kill. He advised Ms. Alexander of her constitutional rights under Miranda by using a PD 47 form.⁸ Forbes read appellee her rights and asked her if she understood them. She answered affirmatively. He then gave her the card to read, and instructed her to answer the questions, sign, and date it. She answered "yes" to the first three questions, but answered "no" to the last question "Are you willing to answer any questions without a lawyer present?" Ms. Alexander signed the card; Detective Forbes signed as a witness. The time noted on the card was 12:22 p. m.

Detective Forbes said no more to appellee regarding her rights or obtaining counsel. Within minutes after she had signed the card and returned it to him, he stated to her "we know what happened," or "we know you are responsible for the stabbing."⁹ He then left the room and returned a few moments later with a PD 163 form, used to prosecute the arrestee. He began completing the form, asking Ms. Alexander how to spell her name. In response to her question, he said the form "was the necessary paperwork . . . so he could send her over to jail," and that she was going to jail. A short time later she said "I got to talk to you about something. I want to tell you what happened." She began to relate the events of the morning. Detective Forbes asked her if she were willing to give a written statement. She agreed, and he retrieved the proper form. At this point fresh Miranda warnings were given. Appellee indicated she understood her rights and was willing to answer questions without an attorney present. No particular inquiry was made as to why she was willing to talk without an attorney present.¹⁰ The written Defendant's Statement was taken beginning at 12:40 p. m.¹¹

Ms. Alexander testified on her own behalf at the suppression hearing.¹² Her version of the sequence of events was essentially similar to that of the government witnesses. She explained that the victim had been her lover, and that she was worried and upset about the latter's condition while she was questioned and detained by the police. She was also concerned about her children. She saw that her daughters were already present at the Homicide Squad office when she arrived, but she was not allowed to speak with them until she had finished giving her statement. She testified that Detective Chaney entered the interview room during the interview and told her that the victim was going to die.

In addition her recollection was that she did not see the rights card (PD 47) until after she had been questioned. Regarding her answer to question four, she said she thought Detective Forbes was going to get her a lawyer, and that she asked for one. She was unsure, however, whether the detective heard her request because he did not respond. She acknowledged that Detective Forbes did not hit or threaten her. Regarding her understanding of the Miranda rights when first given at the scene, she admitted she knew she had a right to be silent, and, in fact, had remained silent. However, she said she did not at that time understand what it meant to have a lawyer nor did she later when she was questioned at the station. She requested an attorney because she was confused, upset, and in need of help.

After receiving extensive memoranda on the suppression issues raised by these facts, including post-hearing briefs, the trial judge issued a comprehensive order directing suppression of the oral and written statements made at the Homicide Squad office. The court concluded that appellee's Fourth Amendment rights were violated when the police handcuffed her and took her to the Homicide Squad office without probable cause.

At the time defendant was taken into custody, police knew that potentially fatal knife wound injuries had been inflicted on the victim in or near defendant's residence, which defendant shared with the victim and several children, and they suspected that the defendant's on-the-scene explanation of how the victim had been injured was probably false. The police did not know at that time whether defendant, assuming her statements were false, was protecting herself, one of her daughters or some third person. The fact that the daughters, who were home at the time, were also vague and evasive about what happened is as consistent with their own guilt or the guilt of another friend or family member as it is with the guilt of defendant.

The court next considered whether the acquisition, at the station, of the additional information from the appellee's daughter was sufficient to dissipate the taint of the illegal arrest. After performing the analysis designated by the Supreme Court in Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) and Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975), the judge concluded the statements should be suppressed.¹³ Given the fast pace at which the events unfolded and the fact that the daughter's statement preceded Ms. Alexander's by merely a few minutes, the court concluded there was insufficient attenuation from the illegal arrest to fall outside the Fourth Amendment exclusionary rule.

The trial judge next turned to the Fifth Amendment issues. He deemed the issue presented as whether appellee's right to remain silent was "scrupulously honored," citing Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975). He found that the police stopped interrogation upon appellee's assertion of a desire not be be questioned without counsel. He rejected appellee's contention that Detective Forbes' statements to defendant that "We know what happened" were tantamount to interrogation, noting:

[T]he court cannot conclude, on this record, that anything done by the detective constituted interrogation within the meaning of Miranda and its progeny. On the contrary, the record...