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09/23/93 A.L.M.

September 23, 1993

IN RE: A.L.M., APPELLANT


Appeal from the Superior Court of the District of Columbia; (Hon. Steffen W. Graae, Motions and Trial Judge)

Before Schwelb and Wagner, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Wagner

WAGNER, Associate Judge: Following a trial by the court, appellant, A.L.M., was adjudicated a delinquent after a finding that he was guilty of felony murder, armed robbery, carrying a pistol without a license, and possession of an unregistered gun and ammunition. He argues for reversal on the grounds that the trial court erred in denying his motion to suppress statements related to these offenses which he made during custodial interrogation three weeks after he was appointed counsel in a prior proceeding for an unrelated traffic offense. Appellant also contends that the affidavit supporting the custody order for his arrest included false information and material omissions, thereby requiring suppression of his statements as the fruit of his illegal arrest. We conclude that appellant's representation by counsel at the prior judicial proceeding on one charge did not invalidate his subsequent waiver of Miranda *fn1 rights made during police-initiated interviews concerning the charges in this case. We further conclude that the challenged affidavit was sufficient to support probable cause even when supplemented by the asserted omissions. Therefore, we affirm.

I.

A.L.M., who was then fourteen years old, was arrested on November 12, 1989 for driving without a permit. Three other young men were in the car at the time, none of whom had a license to drive. Therefore, the police decided to impound the car and requested all of the occupants to get out of the vehicle. As they got out of the car, the police observed and recovered a pistol from the floor of the vehicle, directly in front of where one passenger had been seated in the right rear seat. The next day, the government filed a petition formally charging A.L.M. with the no-permit offense, and the court appointed counsel to represent him. Although appellant and the others in the vehicle had also been charged with carrying a pistol without a license at the time of the arrest, the government did not charge appellant with any weapons offense when the case was petitioned. *fn2

Several days earlier, on November 5, 1989, Harrison Thompson was the victim of a robbery and a shooting which caused his death a few days later. The police ascertained from ballistic tests that the pistol recovered from the vehicle appellant was driving on November 12th was the murder weapon. Another juvenile, C.E.J., gave a statement to the police indicating that he knew A.L.M. from the neighborhood, that he had heard A.L.M. and another individual discussing a plan to rob the victim, and that thereafter he saw appellant shoot the victim during the ensuing robbery. C.E.J. also informed the police of the street location where A.L.M.'s mother lived and the general area where A.L.M. lived with his grandmother. A detective from the homicide branch of the Metropolitan Police Department included all of this information in an affidavit in support of a custody order for appellant's arrest, which the court issued on November 28, 1989. *fn3 The detective did not include in the affidavit that C.E.J. had been a suspect in the case also. After the police informed appellant's mother of the outstanding custody order, she took him to a police station where he was arrested. While in custody appellant waived his Miranda rights and gave incriminating statements about the murder and robbery, including a videotaped statement.

A.L.M. filed a motion to suppress tangible evidence and statements. *fn4 Following an evidentiary hearing on the motion, during which the trial court viewed appellant's videotaped statement, the trial court denied the motion. The court concluded that the omission of C.E.J.'s suspect status from the affidavit was insufficient to undermine the grounds for probable cause and that probable cause would have been established even if the information had been included. *fn5 The trial court also found that respondent had been fully advised of his Miranda rights, understood them, and waived those rights voluntarily and in writing. The court rejected appellant's claim that his Sixth Amendment right to counsel was violated by the police-initiated interrogation of him after he had been appointed counsel in the earlier petitioned no-permit case.

II.

Appellant argues that the trial court erred in denying the motion to suppress the statements he made during police-initiated custodial interrogation because it occurred after he had accepted counsel in the no-permit case. He contends that the appointment of counsel in the no-permit case amounted to an invocation of his Fifth and Sixth Amendment right to counsel for any subsequent prosecutions, whether related or unrelated to the no-permit charge. Therefore, appellant argues, there could be no valid waiver for any police questioning subsequently initiated. *fn6 The District of Columbia contends that the decisions upon which appellant relies do not support his position under the circumstances of this case. Specifically, the District and the United States of America contend that the appointment of counsel in the first proceeding does not constitute an affirmative invocation of the right to counsel for unrelated offenses in the second proceeding. Even assuming that it did, they argue, the invocation would no longer be effective since appellant was not held in police custody continuously after presentment on the initial no-permit charge. Appellant counters that the two cases were inextricably intertwined, and therefore, assertion of the right in the first case extends automatically to cover the second.

The Supreme Court's decision in McNeil v. Wisconsin, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991) resolves a number of these issues. *fn8 Therefore, we recount in some detail the facts and the holding of the case. After McNeil's arrest for an armed robbery in West Allis, Wisconsin, he was advised of his Miranda rights, and he declined to answer questions about the case. However, McNeil did not request counsel. Subsequently McNeil was represented by counsel at the initial bail hearing in the West Allis case. While still in jail, the police questioned him several times about an unrelated murder, attempted murder, and burglary which occurred in Caledonia, Wisconsin. Before each interview, the police advised McNeil of his Miranda rights, including the right to counsel, and he waived them. Thereafter, he made inculpatory statements about the crimes in Caledonia. The trial court denied McNeil's motion to suppress the statements, and he was ultimately convicted of second-degree murder and armed robbery. The Wisconsin Court of Appeals certified a question raised by appellant's appeal to the Wisconsin Supreme Court, which had not previously addressed the issue. In responding to the certified question, the Wisconsin Supreme Court held that an accused's request for counsel at an initial appearance on a charged offense does not constitute an invocation of his Fifth Amendment right to counsel so as to preclude police interrogation on unrelated and uncharged offenses. Id. at 2207.

The Supreme Court affirmed, holding that the accused's invocation of the Sixth Amendment right to counsel is offense-specific and therefore, cannot be considered to be an invocation of the Fifth Amendment right to counsel for all future prosecutions. *fn9 Id. The court acknowledged the principle extracted from Michigan v. Jackson, *fn10 that once the Sixth Amendment right of the accused to counsel for his or her criminal defense has attached and been invoked, any subsequent waiver of such rights in any police-initiated, custodial interview is without effect. McNeil, supra, 111 S. Ct. at 2207. However, the Supreme Court rejected McNeil's argument that the rule applies for subsequently charged, unrelated offenses. Id. In this regard, the Court stated that "just as the [Sixth Amendment] right is offense-specific, so also its Michigan v. Jackson effect of invalidating subsequent waivers in police-initiated interviews is offense-specific." McNeil, 111 S. Ct. at 2207. Therefore, observing that McNeil had provided the statements before his Sixth Amendment right to counsel for the subsequently investigated offenses could have been invoked, the court held that McNeil's representation by counsel in the earlier, unrelated criminal proceeding presented no bar to admission of the statements concerning the subsequently prosecuted offenses. Id. at 2208.

The Supreme Court specifically rejected McNeil's argument for combining the invocation of his Sixth Amendment right to counsel with the non-offense specific rights under Miranda, McNeil, supra, 111 S. Ct. at 2208. McNeil claimed that although he had waived expressly his Miranda right to counsel every time he was questioned about the Caledonia offenses, the waivers were invalid because of his prior invocation of the Sixth Amendment right to counsel in the criminal prosecution for the West Allis offenses. Id. For this argument, McNeil relied on Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), which established the rule that once a suspect asserts his Miranda right to counsel for one offense, he or she may not be questioned about that offense or any other unless counsel is present. Id. at 484-85. The Supreme Court held as a matter of fact and policy that invocation of the offense-specific Sixth Amendment right to counsel does not invoke the non-offense-specific Miranda-Edwards right. McNeil, 111 S. Ct. at 2208-09. Therefore, the court held that McNeil's Miranda waiver with respect to the Caledonia crimes was effective.

Before undertaking an analysis of the facts of this case in light of the Supreme Court's decision in McNeil, we address a preliminary point made by amicus. Although appellant here bases his claim, in part, on the protections afforded under the Sixth Amendment, the guarantees under this amendment do not apply directly to juvenile adjudications of delinquency. McKeiver v. Pennsylvania, 403 U.S. 528, 541, 29 L. Ed. 2d 647, 91 S. Ct. 1976 (1971); In re C.B.N., 499 A.2d 1215, 1218 n.3 (D.C. 1985). However, juvenile respondents have a right to counsel based on the due process protection afforded by the Fifth Amendment. See In re Gault, 387 U.S. 1, 41, 18 L. Ed. 2d 527, 87 S. Ct. 1428 (1967). In this jurisdiction, by statute a child alleged to be delinquent is entitled to counsel at all critical stages of proceedings before the Family Division of the Superior Court. D.C. Code § 16-2304 (1989); see also Super. Ct. Juv. R. 44 (a) (in delinquency proceedings, representation of a child by counsel is mandatory at all hearings after filing of the petition). For purposes of the Disposition of this case, we assume for the sake of argument that these protections which are accorded juveniles are coextensive with the rights reserved to defendants in criminal prosecutions. *fn11 The facts in the McNeil case are otherwise similar to the facts presented here in significant respects.

A.L.M. was represented by counsel when the no-permit case was petitioned and prior to the time the police questioned him about the murder. Therefore, like McNeil, he had invoked any right to counsel comparable to that derived from the Sixth Amendment by the time of the police-initiated contact with him on the murder charge. See Dew v. United States 558 A.2d 1112, 1116 (D.C. 1989) (appointment of counsel amounts to a request for counsel which invokes Sixth Amendment bar to police-initiated interrogation without counsel present); accord, Woodson v. United States, 488 A.2d 910, 912 (D.C. 1984). Also like McNeil, appellant waived his Miranda rights before giving the incriminating statements about the murder, which were the subject of the motion to suppress. Under McNeil the acceptance of appointment of ...


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