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05/31/91 UNITED STATES v. LOWELL GREEN

May 31, 1991

UNITED STATES, APPELLANT
v.
LOWELL GREEN, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Henry H. Kennedy, Jr., Motions Judge

Rogers, Chief Judge. Farrell, Associate Judge. Dissenting opinion by Associate Judge Steadman.

The opinion of the court was delivered by: Farrell

The government appeals from an order suppressing the confession of appellee (hereafter defendant) in this murder prosecution. The trial Judge ruled that the police, in eliciting the confession, violated the prophylactic rule of Edwards v. Arizona, 451 U.S. 477, 101 S. Ct. 1880, 68 L. Ed. 2d 378 (1981), as further explained in Minnick v. Mississippi, 111 S. Ct. 486, 112 L. Ed. 2d 489 (1990). The government argues that suppressing the confession in this case amounts to a wholly unwarranted extension of the Edwards rule to circumstances presenting none of the concerns that impelled that decision or its sire, Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The government's argument has force, as the trial Judge recognized; but like the trial Judge we conclude that the Supreme Court's teachings in this area so far do not countenance a departure from the "bright-line" rule of Edwards in the present circumstances. We therefore uphold the suppression of defendant's confession.

I.

Defendant originally was arrested on July 18, 1989, on a charge of possessing a controlled substance with intent to distribute. He signed a police advice-of-rights (PD 47) form that day and answered "No" in writing to the question whether he was willing to answer questions without having an attorney present. Defendant was presented in court the next day and an attorney was appointed to represent him. He was held on bond until July 28, 1989, when the drug case was dismissed at preliminary hearing. It appears that he was then remanded to the custody of juvenile authorities, presumably in connection with a juvenile matter pending against him at the time. He was subsequently indicted on the drug charge, but failed to appear for his arraignment on August 22, 1989, apparently because he was in the custody of juvenile authorities. When eventually located, he was arraigned in the drug case on September 7, 1989. A bond was imposed and he remained in custody on the bond until September 27, 1989, when he pled guilty to the lesser included offense of attempted possession with intent to distribute cocaine. Following the plea, he was held in the Youth Center at the Lorton Reformatory while a Youth Act Study (D.C. Code § 24-803 (e) (1989)) was conducted. On February 26, 1990, he was sentenced to fifteen months' incarceration under the Youth Act.

Meanwhile, on January 4, 1990, while defendant was at Lorton, Detective Donald Gossage of the Metropolitan Police Department obtained an arrest warrant charging him with the murder of Cheaver Herriott on December 30, 1988. Also on January 4, Detective Gossage obtained an order directing that defendant be brought up the next day from the Youth Center to be booked and formally presented on the murder warrant. On January 5, defendant was brought to the police Homicide Office to be booked. Detective Gossage advised him of his Miranda rights by reading to him both sides of the PD 47 form. Defendant chose to waive his Miranda rights, so indicating by his answers to the four questions on the form. After he discussed with Gossage his involvement in the murder of Cheaver Herriott, defendant was again advised of his rights and agreed to make a videotaped statement, in which he confessed involvement in the robbery and killing of Herriott.

Following his indictment on April 17, 1990 on various charges including first-degree murder, defendant moved to suppress his confession on several grounds, chief among them that it had been obtained in violation of Edwards v. Arizona, supra, in view of his original refusal -- at the time of his arrest on the drug charge -- to answer questions without counsel being present. The trial Judge heard testimony and initially denied the motion to suppress, concluding that "none of the reasons which underlie [the Supreme] Court's decision which have addressed a criminal defendant's right to under the 6th Amendment and his right not to incriminate himself under the 5th Amendment [] would be served by suppression" of defendant's murder confession. *fn1 The Judge emphasized three points. First, an "extraordinary amount of time [over five months] . . . elapsed between" defendant's invocation of rights in the drug case and his waiver of rights in connection with his confession to murder. Second, although he was under some form of restraint of liberty during the entire five or more months, during the last part of that period he was not being held in jail but rather in the presumably less coercive environment of the Youth Center. Finally, defendant had had the opportunity to consult repeatedly with counsel during the period between his invocation of rights in the drug case and his waiver of rights before his murder confession.

Three days after the court's initial ruling, however, the Supreme Court decided Minnick v. Mississippi, supra. The Judge reconsidered his ruling on the Fifth Amendment issue in light of Minnick, noting in particular that the "most significant[]" ground of his ruling had been the appointment of counsel and the opportunity defendant had had to consult counsel in the months prior to the reinitiation of questioning by the police -- a factor specifically addressed by Minnick, and held not to justify a departure from Edwards. On the strength of Minnick's specific holding and its reaffirmation of the "bright-line" test established by Edwards, the Judge reversed his earlier ruling and ordered the confession suppressed. *fn2 The government noted this timely appeal. D.C. Code § 23-104 (a)(1) (1989).

II.

In Edwards v. Arizona the Supreme Court held:

When an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. . . . An accused,. . . having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards, 451 U.S. at 484-85. "Preserving the integrity of an accused's choice to communicate with police only through counsel is the essence of Edwards and its progeny." Patterson v. Illinois, 487 U.S. 285, 291, 108 S. Ct. 2389, 101 L. Ed. 2d 261 (1988). The Court has further explained that "the merit of the Edwards decision lies in the clarity of its command and the certainty of its application," Minnick, 111 S. Ct. at 490: "the Edwards rule provides 'clear and unequivocal' guidelines to the law enforcement profession," id. (citation and additional internal quotation marks omitted), and it "conserves judicial resources which would otherwise be expended in making difficult determinations of voluntariness." Id. at 489.

The government, while acknowledging these purposes of the rule, reminds us that the Edwards holding, like the seminal rule of Miranda, "is not itself required by the Fifth Amendment's prohibition on coerced confessions, but is instead justified only by reference to its prophylactic purpose." Connecticut v. Barrett, 479 U.S. 523, 528, 107 S. Ct. 828, 93 L. Ed. 2d 920 (1987). The government points to the Court's statement that " Edwards is designed to prevent police from badgering a defendant into waiving his previously asserted Miranda rights," Minnick, 111 S. Ct. at 489 (quoting Michigan v. Harvey, 494 U.S. 344, , 110 S. Ct. 1176, 1180 , 108 L. Ed. 2d 293 (1990)); "the rule ensures that any statement made in subsequent interrogation is not the result of coercive pressures." Id. The government then mounts a multi-pronged case for holding that the circumstances of this case insure both that defendant was not "badgered" into revoking his initial election to communicate with police only through counsel and that "the coercive pressures of custody were not the inducing cause" of his confession. Id. at 492.

First, the government points out that the police reinitiated questioning only after defendant had been furnished counsel and consulted with him in the drug case, and that the renewed questioning concerned a crime entirely unrelated to the one regarding which defendant had refused to talk without counsel. *fn3 These considerations alone cannot support the government's argument. In Arizona v. Roberson, 486 U.S. 675, 108 S. Ct. 2093, 100 L. Ed. 2d 704 (1988), the Court rejected the argument that the Edwards rule "should not apply when the police-initiated interrogation following a suspect's request for counsel occurs in the context of a separate investigation," id. at 682; "unless he otherwise states, there is no reason to assume that a suspect's state of mind is in any way investigation-specific" when, by requesting an attorney, he has demonstrated his belief "that he is not capable of undergoing ...


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