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08/26/93 ERROL WAYNE MCINTYRE v. UNITED STATES

August 26, 1993

ERROL WAYNE MCINTYRE, APPELLANT
v.
UNITED STATES, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Shuker, Trial Judge)

Before Schwelb, King and Sullivan, Associate Judges.

The opinion of the court was delivered by: King

KING, Associate Judge: Appellant was convicted of two counts of armed felony murder, and single counts of armed first-degree murder, *fn1 armed second-degree murder, *fn2 armed second-degree burglary, *fn3 arson, *fn4 destruction of property, *fn5 and carrying a pistol without a license. *fn6

On appeal, he raises only two claims that require more than summary consideration. Appellant contends that: (1) "the trial court erred in failing to suppress the statements and confession . . . obtained in violation of his constitutional rights," and (2) that District of Columbia police officers lacked the authority to seize or arrest him in Silver Spring, Maryland. We affirm but remand for resentencing with directions that the trial court vacate all but one murder conviction for each victim. See Byrd v. United States, 510 A.2d 1035 (D.C. 1986) (felony murder and first-degree murder convictions for one victim must merge); see also Thacker v. United States, 599 A.2d 52, 63 (D.C. 1991) (a defendant may only be convicted of one murder when there is only one killing).

I.

In the late afternoon of December 2, 1987, Detectives Willie Jefferson and Norman Brooks, of the Metropolitan Police Department, arrived at 1513 Buchanan Street, N.W., where fire fighters had extinguished a fire in the premises. The lower level was flooded with water and the basement was "burned real bad." The detectives discovered the body of a female, later identified as Marcia Blackstock, with electrical wires wrapped around the neck and a blade "protruding from the chest and back area." The woman had been severely burned in the fire and had cuts on her face. The detectives learned that a second victim, 78-year-old Mabel Gordon, had been taken to the hospital and pronounced dead. Detective Jefferson also noticed that blood had been smeared on the wall outside the basement door.

An autopsy later revealed that Gordon had died from two bullet wounds, one to her abdomen and the other to her pelvis. In addition to thirteen "cutting wounds," Blackstock sustained two bullet wounds. Blackstock also suffered three stab wounds to the back of her neck and one to her abdomen.

The detectives returned to the Homicide Branch at approximately 8:30 P.M., and interviewed Sherron Malcolm, a resident of the Buchanan Street home. Malcolm told Detective Jefferson that her boyfriend, appellant Errol Wayne McIntyre, had threatened to harm her and her family after the couple had a fight the previous night. *fn7 She also told the detectives that she had seen appellant standing on the front porch of her home shortly before the fire. Malcolm provided a description of appellant, observing that the last time she had seen him he was wearing red Fila sneakers, blue jeans, a baseball cap, and a brown suede or knit jacket. Jefferson then obtained a mug shot photograph of appellant.

Based on this information, Jefferson and Brooks decided to search for appellant. At approximately 11:45 P.M. they left the police station and drove to two nightclubs he was known to frequent. The detectives did not find appellant at either location. They then proceeded to the address in Silver Spring, Maryland, that had been provided to them by Sherron Malcolm, where appellant lived with his mother. When the two detectives arrived at the apartment building, Brooks stood at the front door of the lobby, while Jefferson scanned the mailboxes to determine appellant's apartment number. As Jefferson returned to the lobby area, he observed Brooks talking with a man (appellant) who matched the description given by Malcolm. The man was wearing red Fila sneakers, a baseball cap, blue jeans, and a brown jacket. He also had a scarf covering his face. As he neared appellant, Detective Jefferson noticed what appeared to be blood stains on the appellant's shoes. Jefferson also observed that appellant was wearing a single glove (described as a driving glove, not a glove for warmth) on his left hand, leading Jefferson to believe that appellant was attempting to conceal an injury to the hand. Based on these observations, Jefferson believed that the man was the perpetrator of that afternoon's homicides.

Jefferson approached appellant and pulled off the scarf covering appellant's face, exclaiming, "this is the person we're coming to see right here." Jefferson identified himself and Brooks as police officers and asked appellant for identification. Appellant claimed that he was Richard McIntyre and that the officers "want to see my brother. He's upstairs waiting for you." Jefferson requested that appellant walk with him upstairs and, as they began walking toward the stairs, Brooks told Jefferson that appellant had something in his back pocket. As Brooks reached to get the object from appellant's back pants pocket, it fell out. When Jefferson looked to see what had fallen, appellant fled. Although Jefferson pursued appellant he was unable to apprehend him. Jefferson did, however, recover the baseball cap *fn8 that had blown off appellant's head as he escaped, and the objects that had fallen from his pocket appellant's passport and a photocopy of his birth certificate. All of these items were admitted into evidence at trial.

Jefferson obtained an arrest warrant for appellant and on January 22, 1988, at approximately 4:25 P.M., Detective Melvin Hemphill and other police officers proceeded to apartment 203 at 1435 Spring Road, N.W., to execute the warrant. Appellant was arrested without incident and advised of his rights. Appellant stated that he understood his rights.

Appellant was then taken to the Homicide Division, placed in an interview room, and handcuffed to a chair. Appellant asked Hemphill what charges were being brought against him. Hemphill told him he thought appellant would be charged with two counts of murder, arson, unlawful flight to avoid prosecution, and (possibly) pulling a gun on the two detectives in Silver Spring. Appellant requested and received a cigarette, and Hemphill then asked appellant if there was anything else he wanted to say. Appellant stated, "Not right now, maybe after I talk to my attorney." Hemphill said nothing further. He then left appellant alone in the interview room.

Shortly afterward, Detective Forrest Hamlin entered the interview room and identified himself. Hamlin testified that he went to the interview room to check on appellant and to tell him that Detective Jefferson would be arriving shortly. Appellant asked Hamlin what charges were being made against him. After Hamlin told appellant that he was charged with murder, appellant asked whom he had supposedly killed. Hamlin then told appellant that the case was assigned to Detective Jefferson and that appellant would have to await Jefferson's arrival at the Homicide office. Later, Jefferson, who had been in court in another matter, arrived and introduced himself. Appellant berated Jefferson for falsely claiming that appellant had drawn a weapon during the December encounter in Silver Spring. *fn9 Appellant then inquired about Sherron Malcolm. Jefferson attempted to advise appellant of his rights, but appellant continued to inquire about Malcolm. Finally, as the trial court found, appellant "stated that if Detective Jefferson allowed him to speak with Sherron and did not write anything down or advise him of his rights, he would tell Detective Jefferson anything." Appellant again declined to allow Jefferson to advise him of his rights.

Jefferson observed that appellant seemed to be preoccupied with Sherron Malcolm, and he decided to use that to his advantage. Jefferson then told appellant that on the night of the incident he had tried to comfort Malcolm while she cried, and that some man with dreadlocks had taken her home. Appellant appeared to be upset by this information, and he insisted on seeing Malcolm. Jefferson told appellant that he must first tell the truth about the crime, and that after that he would be permitted to see Malcolm. Appellant then confessed ...


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