Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Huhn, Trial Judge).
Before Rogers, Chief Judge, and Pryor and Belson,* Senior Judges. Opinion for the court by Senior Judge Belson. Dissenting Opinion by Chief Judge Rogers.
The opinion of the court was delivered by: Belson
Belson, Senior Judge : Appellant William M. Johnson was convicted by a jury of second-degree murder while armed in violation of D.C. Code §§ 22-2403, -3202 (1989). He argues that a detective obtained the first of his two statements through the use of coercive tactics that are repugnant to the due process and self-incrimination provisions of the Fifth Amendment of the United States Constitution, and that the trial court committed reversible error by allowing the government to introduce into evidence a subsequent statement derived from his prior involuntary statement. We affirm.
On August 28, 1987, at approximately 8:00 p.m., Quentin Cooper was stabbed in the chest while in the basement of an apartment building at 2308 Green Street, S.E., Washington, D.C. After being stabbed, Cooper ran across a courtyard where he collapsed in the doorway of an apartment and died before police and ambulance arrived.
On September 20, 1987, at approximately 1:45 a.m., appellant Johnson was arrested in a hallway of the same apartment building by Detective Frank Kahan pursuant to what he believed to be an outstanding warrant for prison breach. *fn1 Detective Kahan advised Johnson of his Miranda *fn2 rights, reading him the warnings from the police department rights card, and had him transported to the homicide office where Johnson arrived at 2:15 a.m.
At the homicide office Detective Kahan took Johnson to an interview room where Detective Kahan once again advised Johnson of his Miranda rights. Johnson read all the questions on his "rights card" and wrote "yes" next to each, thereby indicating that he waived his right to remain silent. Detective Kahan then signed and dated the card containing Johnson's written waiver. For the next hour, Detective Kahan asked Johnson additional questions necessary to process his arrest and told Johnson that his name was being associated with the stabbing death of Cooper. According to Detective Kahan, appellant did not appear to be intoxicated, but was cordial and cooperative. Johnson said that he would discuss his knowledge of the stabbing with Detective Kahan, and agreed with Detective Kahan's suggestion that Johnson's remarks be videotaped.
Johnson's videotaped statement began at approximately 3:30 a.m. It reveals that Detective Kahan once again showed Johnson the rights card. *fn3 Johnson confirmed that he had been read his rights, understood them, and waived them, and had not been made any promises in connection with his waiver. Johnson then stated that he was in the hallway of the apartment building "serving some people some coke." Two individuals from New York, a "short dude" whose name Johnson did not know, along with a "tall dude" named Larry Lewis, emerged from the laundry room. Lewis conversed with Cooper and accused him of taking some of Lewis' drugs. According to Johnson, Lewis then cleared everyone out and, as Johnson attempted to go upstairs, Cooper tried to run up the stairs behind Johnson and "got hit."
At this point during the videotape Johnson interjected "could ya'll take me to jail -- I'm begging you please." Detective Kahan, however, continued to question Johnson. In addition to recounting again the stabbing incident, Johnson also gave for the first time a physical description of Lewis and stated that Lewis had a knife in his hand, that blood splashed on Johnson, and that everybody came to Johnson asking him what had happened. After making his statement, Johnson was released by the police.
On December 11, 1987, over two and one-half months later, two officers of the Fourth Police District arrested Johnson at 4:30 p.m. in the area of Georgia Avenue and Park Road, N.W., pursuant to a warrant charging him with murdering Cooper. The two officers transported Johnson at approximately 5:05 p.m. to the homicide branch of the Metropolitan Police Department. Detective Dwayne Stanton attempted unsuccessfully to contact Detective Kahan, the affiant on the warrant, who was off duty. Detective Stanton then processed Johnson, took him to an interview room in the homicide office, and read Johnson his Miranda rights. Johnson responded that he understood his rights, and read and answered each question on the police department rights card by writing "yes" to all questions. Detective Stanton then signed, dated, and entered the time on the card. In response to Detective Stanton's question of whether Johnson had anything he wanted to say regarding the Cooper homicide, he stated that he had previously given a statement to Detective Kahan which reflected what he had to say and it would remain unchanged.
When Detective Stanton asked Johnson whether he wanted to go over his statement, Johnson responded that he was present when the stabbing occurred, a New Yorker got into a fight with Cooper and stabbed him, and that Cooper fell back on Johnson, getting blood on his shoes. Detective Stanton asked Johnson whether he still had the shoes. According to Stanton, Johnson responded that "he had thrown them away and that people always blamed things on him. That's why he didn't get involved, or words to that effect."
Johnson filed a motion to suppress both the September and December statements, arguing that because he was not adequately advised of his Miranda rights, his statements were involuntary. The trial court viewed the September videotaped statement and determined that Johnson initially waived his Miranda rights, but attempted unsuccessfully to terminate the interview when he first stated "take me to jail." The Judge ruled that the initial portion of the tape prior to this statement would be admissible at trial but that any statements following Johnson's initial request to be taken to jail were suppressed because "I think Kahan overbore this defendant." The Judge went on to rule that Kahan "was coercive at that point and I think he badgered this defendant."
The trial Judge denied Johnson's motion to suppress his December statement, finding that
the second statement the Court rules is 100 percent clean. The officer followed all of the rules, gave him his rights, he waived them voluntarily and knowingly. When the defendant gave him his statement, he gave him his statement. I said in light of what's happened that part of it, I mean, he can say he agreed with the statement he gave.
The trial Judge further stated that "it doesn't seem there's a problem with the second statement, because the second statement can refer to, [the first portion of the September statement], which will be in, but let me say this. . . . I'm not going to let [the second portion of the September statement] even be used . . . in rebuttal."
At trial, the government displayed to the jury the admissible first portion of Johnson's videotaped September statement made to Detective Kahan, and introduced into evidence Johnson's entire December statement made to Detective Stanton. Defense counsel objected, but later decided during trial to show the entire September videotaped ...