Appeal from the Superior Court of the District of Columbia; (Hon. Fred B. Ugast, Trial Judge).
Before Steadman and Wagner, Associate Judges, and Pryor, Senior Judge.
The opinion of the court was delivered by: Pryor
PRYOR, Senior Judge : Appellant appeals from his conviction in Superior Court of the District of Columbia of two counts of voluntary manslaughter while armed. D.C. Code §§ 22-2405, -3201-02 (1989 Repl.). We find no error in the trial court's ruling that appellant failed to establish by a preponderance of the evidence that a detective acted with intent to mislead the court, or with reckless disregard for the truth in omitting a witness' age from an affidavit in support of an arrest warrant. Accordingly, we hold there was no error in the trial court's denial of the motion to suppress appellant's confession or the testimony of the eyewitness as illegal fruits of an invalid warrant affidavit.
In the early morning of May 24, 1982, a woman's body [herienafter S.J.] was found in the rear of a Giant Food Store in Northwest Washington with multiple stab wounds. At S.J.'s apartment, her mother [hereinafter J.J.] was discovered, also dead of stab wounds, with a long knife protruding from the back of her neck. The police also observed a trail of blood leading out of the apartment to the rear of the building and in the direction of S.J.'s body. During Detective John Clark's initial investigation of the apartment, he found two notebooks which referred to "Joe" and "Mr. Dailey," respectively. A note in one of the notebooks suggested some animosity between J.J. and "Joe." Then, in the course of notifying the decedents' next-of-kin, Detective Clark learned that S.J.'s boyfriend of nearly two years was Joe Dailey, the appellant.
In the apartment, the police also found a three-and-one-half year-old child, S.J.'s daughter, unharmed, who immediately began repeating to them, to her relatives, and to all who would listen, that "Joe cut Mama!" Although the child was emotionally upset during the taped interview and had some difficulty following some of the questions, she continued to state that "Joe cut Mama." Detective Clark also learned from relatives that the child had lived with her mother since birth, and he assumed that the girl was acquainted with Joe Dailey for at least one year. Furthermore, when the girl was shown a photograph of Joe Dailey, she said that he was "Joe" who "cut Mama."
Relying on this evidence, the detective believed that S.J. had been stabbed in the apartment while her young daughter watched, then dragged to the parking lot. That same afternoon, S.J.'s new boyfriend gave a statement to the police which suggested a possible motive and opportunity for the murder of S.J. by Joe Dailey, her apparently jilted boyfriend.
Later that same day, Detective Clark prepared an affidavit in support of a warrant for the arrest of appellant for the death of S.J., which was signed by a Superior Court Judge. *fn1 After appellant was arrested, he initially gave the police different versions of his whereabouts at the time of the stabbing of S.J. and her mother, J.J... Later, after stating to the police, "I know you wouldn't charge me unless you found a witness," and when the police said nothing, appellant mentioned the name of a male eyewitness to the homicides. Thereafter, appellant confessed in writing that he stabbed both victims. A grand jury indicted appellant on four counts: first-degree (premeditated) murder of S.J. while armed, (D.C. Code §§ 22-2401, -3202 (1989 Repl.)); first-degree burglary while armed, (id. §§ 22-1801(a), -3202); first-degree (felony) murder of J.J. while armed, (id. §§ 22-2401, -3202); and first-degree (premeditated) murder of J.J. while armed, (id. §§ 22-2401, -3202).
The defense moved to suppress Mr. Dailey's written confession and the testimony of the male witness to the murders on the ground that the omission of the child's age from the affidavit was a violation of Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667 (1978). The trial court held an extensive pretrial Franks evidentiary hearing, but ruled that the defendant did not meet the Franks test by a preponderance of the evidence. A jury found appellant not guilty on all four charged counts, but guilty of the lesser-included offense of voluntary manslaughter while armed of both S.J. and J.J. Appellant appeals the trial court's ruling that appellant failed to establish by a preponderance of the evidence that he was entitled to suppression of his written confession and the testimony of the eyewitness pursuant to Franks.
The Supreme Court in Franks v. Delaware, (supra) , 438 U.S. at 154, established a test for reviewing an allegation that a warrant was based on a false or misleading affidavit. In In re Y.G., 399 A.2d 65, 68 (D.C. 1979), we adopted the Franks guidelines for determining whether an evidentiary hearing is required to resolve whether evidence should be suppressed. Because there is "a presumption of validity with respect to the affidavit supporting the search warrant . . . the challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine." Id. at 68 (quoting Franks, (supra) , 438 U.S. at 171). To mandate an evidentiary hearing, there must be "allegations of deliberate falsehood or reckless disregard for the truth, and those allegations must be accompanied by an offer of proof. . . . Allegations of negligence or innocent mistake are insufficient." Id. (quoting Franks, (supra) , 438 U.S. at 171). Finally,
if these requirements are met, and if, when material that is the subject of the alleged falsity or reckless disregard is set to one side, there remains sufficient content in the warrant affidavit to support a finding of probable cause, no hearing is required. On the other hand, if the remaining content is ...