Appeal from the Superior Court of the District of Columbia; (Hon. Henry F. Greene, Trial Judge)
Before Rogers, Chief Judge, Farrell, Associate Judge, and Pryor, Senior Judge. Opinion for the court by Associate Judge Farrell. Concurring opinion by Chief Judge Rogers.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Found guilty by a jury of felony murder while armed (D.C. Code §§ 22-2401, -3202 (1989)), three counts of armed robbery (D.C. Code §§ 22-2901, -3202), and one count of attempted robbery while armed (D.C. Code §§ 22-2902, -3202), appellant contends that his confession made to the police following his arrest was the product of "unnecessary delay" under Rule 5 (a) of the Superior Court Rules of Criminal Procedure and 18 U.S.C. § 3501, and should have been suppressed for that reason. He also challenges the adequacy of the instructions given the jury relating to felony murder. Although the circumstances surrounding appellant's confession are troubling, in particular the delay of eleven hours before this 16-year-old was taken before a judicial officer, during most of which he was handcuffed to a desk, we sustain the trial Judge's finding that the confession was made in compliance with 18 U.S.C. § 3501 and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and was therefore admissible. Rejecting as well appellant's challenge to the jury instructions, we affirm the convictions except that we remand with directions to vacate the conviction for attempted robbery while armed, the predicate to the charged felony murder. Whalen v. United States, 445 U.S. 684, 100 S. Ct. 1432.63 L. Ed. 2d 715 (1980).
On December 27, 1989, appellant -- then sixteen years old -- and three co-defendants were arrested at approximately 4:30 a.m. for the armed robbery of Jeffrey Crocker. After first being taken to the Youth Branch of the Metropolitan Police Department, appellant was brought to the Homicide Branch between 6:30 and 7:00 a.m. for questioning about the murder of John Coleman. There he remained handcuffed to a desk in an interview room until approximately 3:00 p.m., without being questioned. The three other suspects were detained elsewhere in the Homicide Branch. According to a detective, appellant was not questioned until 3:00 p.m. because the police were investigating the robbery and homicide and engaged in "large amounts of paperwork" related to these events. During his detention, appellant was given the opportunity to make one telephone call and was asked if he wanted something to eat or to use the bathroom.
At about 3:00 p.m., Detective Victor Smith advised appellant of his Miranda rights and asked whether he would make a statement without the benefit of an attorney. Before informing him of his rights, Smith told appellant that he "had talked with some other people that were in [appellant's] company at the time of his arrest," and that the investigation "had disclosed some circumstances that associated them with the homicide." Smith intended "to make aware . . . that would be attempting to get statements from everyone involved." Appellant responded that he understood his rights and agreed to make a statement on videotape without an attorney present. At about 3:15 p.m., Detective Mayberry advised appellant of his rights a second time, and he again acknowledged his understanding of them and willingness to talk, signing a PD-47 rights card to that effect. At 3:26 p.m., two detectives began the videotaped interview after confirming with appellant his previous understanding of his rights and consent to talk without a lawyer present. The interview concluded at 3:42 p.m.
In his taped statement, appellant implicated himself directly or indirectly in the murder of John Coleman and the armed robberies of Jeffrey Crocker, Christie Lancaster, and Sherrie Fisher. He explained that he and the other defendants had been "riding around" in two separate cars early on December 27, 1989, when they stopped and robbed "this boy." Everyone got out of the cars, and his companions repeatedly struck the victim, but appellant "didn't get to hit him" because a dog came on the scene. The group rode around some more before one of them robbed a second person, Crocker, at gunpoint. They then drove around the corner before "jump out on these two girls," Fisher and Lancaster, and robbing them at gunpoint of a coat and earrings. (Lancaster's earrings were later found in appellant's coat pocket). Finally, after additional driving, the occupants of both cars stopped when they saw a man, Coleman, walking along the street. An occupant of the second car got out, ran past Coleman, and motioned with his hand while looking at appellant and co-defendant Alston. Appellant and Alston got out of their car, and Alston approached Coleman and struck him with his gun, causing him to fall to the ground. As appellant ran back to the car, he heard three gun shots. Coleman was shot four times in the back and died as a result. *fn1
In his oral motion to suppress the confession, appellant contended only that the statement was involuntary in the classic sense. In ruling on the motion, however, the trial Judge raised independently the issue of whether the eleven-hour delay between appellant's arrest and his presentment to a judicial officer violated the "without unnecessary delay" provision of Super. Ct. Crim. R. 5 (a), making his statements suppressible under the McNabb/Mallory rule *fn2 and 18 U.S.C. § 3501. The Judge found in this regard "that the Government has not presented any evidence that the time for the routine processing of this man required eleven hours before he could be brought to court and[,] indeed, the only evidence before the Court is that basically nothing was done with between about 7:00 o'clock in the morning and 3:30 in the morning [ sic; afternoon]." The Judge also found it "clear that a . . . judicial officer would have been available." In short, the Judge concluded that the delay in presenting appellant to a judicial officer was unnecessary. On the other hand, the Judge found that appellant was advised of his Miranda rights -- "albeit quite late in the game[,] . . . in the vicinity of 2:30 to 3:30 [p.m.]" -- and both "understood those rights and . . . executed a valid waiver" of them. The Judge found no evidence "that the delay here of eleven hours was calculated" or intended to "psychologically or otherwise coerce ." Furthermore, he concluded that,
other than the delay, there are no real -- other real indicia of involuntariness in the case and I say that based in part upon an objective examination of the factors that go to voluntariness and in part upon my own observation of the videotape, the confession.
It's clear to me that notwithstanding the defendant's age, he knew very clearly what was going on. It's clear from the tape that he was calm. He was collected. He was rational. He did not show any apparent effects of being intimidated or threatened or being scared.
There is no indication on the tape that he was intoxicated or otherwise under the effect of drugs. There are no indications and inquiries [ sic ] about his age or his reading ability or his intelligence would have borne fruit in reflecting that he was not able to understand and know what was going on. To the contrary, the tape reflects that he clearly knew what was going on.
And there is no evidence of any fear, threats, coercion or force, physical or psychological, no evidence of any offer of award [ sic; reward]. The length of time of the statement itself certainly relatively minimal, within reasonable constraints. I think it was twenty to thirty minutes, as I recall, from looking at the clock on the wall.
There were one or two officers present. I don't even -- they were in uniform. Their presence certainly was not intimidating by its nature, and given all of the circumstances surrounding the confession except for the extraordinary delay, I would find the confession voluntary.
After reviewing binding decisions of this court and the United States Court of Appeals for the District of Columbia Circuit *fn3 concerning the relation between delay in presentment and a Miranda waiver, the Judge ruled that the delay alone did not require suppression. "Once somebody validly waives their Miranda rights, everything that Mallory [, (supra) , note 2] sought to accomplish has been accomplished and I don't think . . . there's any Mallory problem and I don't think there's any voluntariness problem." The Judge therefore denied the motion to suppress.
We recently summarized the law governing the interplay of Super. Ct. Crim. R. 5 (a), 18 U.S.C. § 3501, and a valid waiver of Miranda rights. In Bond v. United States, 614 A.2d 892 (D.C. 1992), we explained:
Super. Ct. Crim. R. 5 (a) provides that an arresting officer "shall take the arrested person without unnecessary delay before the Court." We have held that a confession obtained during a period of unnecessary delay is inadmissible in evidence. But we have further held, repeatedly, that "a valid waiver of an individual's Miranda ...