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October 30, 1992


Appeal from the Superior Court of the District of Columbia; (Hon. Henry F. Greene, Motions Judge); (Hon. Stephen F. Eilperin, Motions and Trial Judge)

Before Ferren, Schwelb, and King, Associate Judges.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge: After a bench trial, the trial court found appellant Cullen Byrd guilty of first-degree burglary with intent to steal, D.C. Code § 22-1801 (a) (1989 Repl.), two counts of felony murder, D.C. Code § 22-2401 (1989 Repl.), two counts of second-degree murder, D.C. Code § 22-2403 (1989 Repl.), three counts of second-degree burglary, D.C. Code § 22-1801 (b) (1989 Repl.), first-degree theft, D.C. Code §§ 22-3811 and -3812 (a) (1989 Repl.), unauthorized use of an automobile, D.C. Code § 22-3815 (1989 Rep1.), trafficking in stolen property, D.C. Code § 22-3831 (1989 Rep1.), and possession of drug paraphernalia, D.C. Code § 33-603 (a) (1988 Rep1.). He now appeals, claiming that (1) the trial court erred in not suppressing his confession, and (2) there was insufficient evidence to support his convictions for (a) first-degree burglary and, consequently, felony murder, (b) second-degree burglary, and (c) one of the two second-degree murder counts. *fn1 For the reasons given below, we reject appellant's arguments. With regard to appellant's convictions for first-degree burglary, felony murder, and second-degree murder, we remand this case to the trial court to enable it to effectuate its sentencing scheme without violating the Double Jeopardy Clause. In all other respects, we affirm the judgment on appeal.


On June 15, 1989, the bodies of Holly Kincaide and her daughter Kristin were discovered in their home at 1429 Whittier Street, N.W., Washington, D.C. Holly Kincaide's body was found underneath her bed; Kristin's body was in the bathroom, where it was lying, clothed, in a tub with ten and three-guarter inches of water in it. The Kincaide home was in great disorder and there was blood on the bed and wall of the master bedroom. A basement door had been splintered. Holly Kincaide's car was also missing.

A medical examiner later determined that Holly Kincaide had died from blunt force injuries to the head and face. Her daughter's death had been caused by blunt force injuries to her head and perhaps by submersion in water as well. There was a contusion to Kristin's right eye, suggesting an impact to that eye, and a hemorrhage of the entire right side of the scalp. These injuries were consistent with Kristin's having been punched once in the eye and having fallen back and struck her head against something.

At some point between 7:00 and 7:30 a.m. on June 16, 1989, police arrested appellant and a companion after finding them sleeping in Holly Kincaide's car. Appellant was given verbal Miranda *fn2 warnings and was taken to Metropolitan Police Department Headquarters. Detectives did not begin speaking with appellant until 1:18 p.m. They advised him orally of his rights and he agreed to answer questions. After questioning had proceeded for some time, appellant confessed to murdering Holly and Kristin Kincaide. He was again advised of his rights and signed a written waiver at 2:30 p.m. After further questioning, the detectives proceeded to videotape appellant's confession, beginning at about 4:30 p.m. After concluding his statement, in which he admitted responsibility for the deaths of Holly and Kristin Kincaide, appellant said that he had not been placed under duress during the questioning, and that he was not under the influence of alcohol or drugs. He added, however, that he was worn out from having only had a nap and four to five hours of sleep the night before. Appellant was not presented in Superior Court until the following day.

Appellant later moved to suppress his videotaped confession. On August 6, 1990, Judge Greene denied appellant's motion.

Appellant renewed the motion on different grounds, and judge Eilperin heard and denied it on April 16, 1991.

At trial the videotape was admitted into evidence and was played for the court. In addition, the government presented ample incriminating evidence at trial, including fingerprints proving that appellant had been in the Kincaide home and testimony that he had removed items from the home and sold them to purchase crack cocaine.


Appellant asserts that the trial court erred in denying his motion to suppress his videotaped confession. He argues that the confession should have been suppressed because (1) the government failed to interview appellant for over six hours after his arrest and did not present him to the court until the following day, and (2) appellant's confession was not voluntary.

In making the first claim, appellant relies on the so-called "McNabb-Mallory Rule," which requires suppression of a confession obtained during a period of unnecessary delay before taking the defendant before a court for arraignment. See Mallory v. United States, 354 U.S. 449, 450-56, 1 L. Ed. 2d 1479, 77 S. Ct. 1356 (1957); McNabb v. United States, 318 U.S. 332, 341-45, 87 L. Ed. 819, 63 S. Ct. 608 (1943); Bliss v. United States, 445 A.2d 625, 633, modified on other grounds, 452 A.2d 172 (D.C. 1982), cert. denied, 459 U.S. 1117 (1983). As the trial court noted in denying appellant's motion to suppress, however, we have held that a valid waiver of Miranda rights also constitutes a waiver of the right to prompt presentment before a court. See Bond v. United States, 614 A.2d 892 (D.C. 1992); Hawthorne v. United States, 504 A.2d 580, 587 n.17 (D.C.), cert. denied, 479 U.S. 992 (1986); Bliss, 445 A.2d at 633. See also Pettyjohn v. United States, 136 U.S. App. D.C. 69, 419 F.2d 651 (1969), cert. denied, 397 U.S. 1058, 25 L. Ed. 2d 676, 90 S. Ct. 1383 (1970).

Appellant argues here that while he said he understood his Miranda rights, he did not execute a knowing, intelligent, and voluntary waiver of those rights, because he was subjected to prolonged questioning while suffering from lack of sleep and the effects of recent drug use. The trial court reviewed this claim and found that appellant's waiver of his rights was knowing, intelligent, and voluntary. The trial court found no evidence that appellant was under the influence of drugs or alcohol or that he was unduly tired when he gave his statement. We will not overturn the trial court's findings of fact on this issue unless they are without substantial support in the evidence. Hawthorne, 504 ...

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