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November 22, 1993


Appeal from the Superior Court of the District of Columbia; (Hon. Henry H. Kennedy, Jr., Trial Judge)

Before Ferren and Steadman, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Per Curiam

PER CURIAM: Following a jury trial appellant was convicted of two counts of first degree murder while armed, in violation of D.C. Code §§ 22-2401, -3202 (1989). Prior to trial, appellant moved to suppress several statements that he made to police and certain physical evidence. A hearing was held on appellant's motion, after which the trial court denied the motion. Appellant challenges the denial of his motion to suppress, the admission of assertedly inadmissible hearsay at trial, and the sufficiency of the evidence as to premeditation. We conclude that inadmissible hearsay was admitted at trial, resulting in unfair prejudice to appellant, and, therefore, we reverse the judgment of the trial court and remand for a new trial. We reject appellant's other arguments.


On October 29, 1989, Officers Kevin Flemens and Shawn Braxton of the Metropolitan Police Department were on patrol in a marked police cruiser. At approximately 4:55 a.m., they saw appellant running down the street and yelling to them. Appellant, who was breathing heavily, highly emotional, and bleeding from a severe cut on his left hand, approached the police car and informed the officers that there had been a stabbing in a nearby apartment. Appellant then entered the car and directed the officers to the apartment. Officer Flemens radioed for an ambulance, and when appellant and the officers arrived at the apartment, Officer Flemens instructed Officer Braxton to stay with appellant while Officer Flemens went inside. Officer Braxton testified that he was concerned at that point that appellant might pass out due to a loss of blood. Officer Carter Adams and several other officers also arrived at the scene during this time.

Officer Flemens testified that when he first entered the apartment, he saw blood on the knob of the television in the living room, some blood on the living room carpet, and a bloody towel between the living room and the hallway. He went down the hallway to the bedrooms and saw a baby sitting on a bed, and in the same bedroom found a woman with multiple stab wounds lying face down on the floor. In the adjacent bedroom, he found a young girl, also having suffered multiple stab wounds. Both were dead at the time that Officer Flemens found them.

Officer Braxton testified that because appellant was a potential witness to the events that had taken place in the apartment, he accompanied appellant to the hospital in the ambulance. Officer Braxton also testified that he never placed appellant under arrest or restrained him in any way, and that appellant never objected to his presence. A uniformed police officer transported appellant to the homicide office at approximately 10:10 a.m., after appellant's examination at the hospital was completed.

Detective Dwayne Stanton took appellant into an interview room at the homicide office and explained that appellant was not under arrest, that he was free to leave at any time, and that he only wanted to ask appellant a few questions, but that appellant did not have to answer any questions if he did not want to. Detective Stanton then gave appellant a modified PD-47 to read and initial. The modification added the word "not" to the statement "You are under arrest." In addition, Detective Stanton also read the PD-47 aloud to appellant. Appellant wrote "yes" next to each question on the waiver side of the PD-47, *fn1 and signed and dated the bottom.

Detective Herman Johnson joined Detective Stanton and they proceeded to interview appellant. During that interview, the detectives asked appellant if they could take his clothes in order to run some tests on them; appellant agreed and relinquished his clothing. Later, Detective Roger Hearron came in and replaced the other detectives in the interview room. Detective Hearron interviewed appellant and then accompanied appellant when he went outside to meet his father. *fn2 After they returned to the homicide office, Detective Young, the officer in charge of the investigation, arrived from the crime scene and about six hours after appellant's arrival at the homicide office, placed appellant under arrest. He showed appellant an unmodified PD-47, which appellant signed and dated, again answering "yes" to each question. Appellant then repeated his story to Detective Young.

According to appellant's account as given at trial, when he arrived home on October 29, 1989, to the apartment that he shared with Brenda Sams, her niece Kianna Sams, and his son Tory, Brenda was lying on the floor and a man named Jesus, to whom appellant owed money for a drug debt and who had harassed appellant and his family in the past, was standing over Brenda with a knife. Jesus tried to stab appellant with the knife and appellant grabbed at the knife in defense. The two men got into a struggle and appellant was thrown into a piece of furniture. He hit his head, and although never unconscious, was afraid to move. When Jesus left, appellant got up and ran down the street towards his mother's house, from where he intended to call the police. As he was running down the street, he flagged down the police car for help.

The government's theory at trial was that appellant had fabricated the entire story about Jesus and had actually committed the murders of Brenda and Kianna Sams himself. The government asserted that appellant had lied about the actions that he said that Jesus had previously taken against appellant and his family. Detective Johnson testified that he spoke with appellant's mother on the telephone during the time that appellant was being interviewed at the homicide office, and that she had denied that the events appellant had related had ever taken place. The government argued that as the stories of the previous events were false, so too, was appellant's story relating to the murders.


Appellant contends that the trial court committed reversible error in allowing two police detectives to testify about the hearsay content of a telephone conversation one of them had with appellant's mother. The government denies that the challenged statements were inadmissible hearsay, arguing that the evidence was offered not for its truth but for its relevance to the police investigation and arrest. The government says, more specifically, that the statements were offered to show appellant's reaction during a police interview to information, attributable to his mother, that contradicted the account he had given to the police earlier.

We reject the government's contention for the following reasons. First, through its opening statement to the jury and otherwise, the government presented the challenged statements for their truth; the mother's hearsay was used to impeach the son's testimony in four instances. Second, as to the mother's two most damaging statements, the detectives neither elicited nor , No. 90-FS-1602 (D.C. Feb. 23, 1993). Appellant, covered with blood, came to the police with a report that a person had been murdered in his apartment. He voluntarily sought out the police and requested their intervention and assistance. His detention for a period of time would be warranted while the police could enter the apartment and conduct an initial investigation. See Reid v. United States, 581 A.2d 359, 364 n.7 (D.C. 1990); United States v. Calhoun, 363 A.2d 277, 283-84 (D.C. 1976). Indeed, in addition to his status as a possible suspect, it was clear from appellant's own statements that he was a crucial witness to the events. See Michigan v. Summers, 452 U.S. 692, 700, 69 L. Ed. 2d 340, 101 S. Ct. 2587 n.12 (1981); Williamson v. United States, 607 A.2d 471, 476 (D.C. 1992) (Farrell, J. Concurring), cert. denied, 126 L. Ed. 2d 63, 1993 U.S. LEXIS 5155, 62 U.S.L.W. 3245, 114 S. Ct. 96 (U.S. Oct. 4, 1993) (No. 92-8101). The challenged statement was made shortly after the postulated Terry seizure and plainly within the reasonable time limit for such a detention, so the admission of this statement did not violate the Fourth Amendment rights of appellant, even assuming that appellant had been seized at the time.

We do not need to rely on the foregoing analysis, however. The trial court ruled, in effect, that no seizure occurred at any point prior to the formal arrest. The trial court specifically found that appellant was not in custody until the moment of formal arrest. The trial court defined "custody" as the situation "when a state agent physically deprives the suspect of his freedom of action in any significant way or under the circumstances leads him to believe, as a reasonable person, that he is so deprived." While the trial court called this "custody," the definition that he gave actually describes a Fourth Amendment "seizure." *fn7 Using that standard, the trial court found that appellant was not "in custody" until the time of formal arrest. Since he was actually defining a seizure, the trial Judge, in effect, found that appellant was not seized until formally placed under arrest. We think that the record fairly supports this Conclusion.

On the facts here, throughout the duration of Patton's initial contact with the police, his remaining with them during the investigation, and their accompanying him to the hospital, the police, although perhaps suspicious, were not depriving him of his freedom of movement. Appellant had voluntarily come to the police and asked them to investigate. The fact that appellant initiated the encounter with the police "sheds light on the tone of ensuing events and . . . has an important bearing" on whether a reasonable person would have felt free to leave. Giles v. United States, 400 A.2d 1051, 1054 (D.C. 1979). The only testimony of the officers which might be used to conclude that appellant was seized are the statements of the officers that they would not have let appellant leave if in fact he had desired to do so, a fact which is not conclusive on the issue of seizure, and the testimony that Officer Flemens told Braxton not to let appellant leave, a statement which only speculation would ascribe to appellant's having heard. Moreover, appellant was obviously wounded and weak and the police remaining with him and making sure that he was transported to the hospital could reasonably be construed as acts of cooperation and concern. There is no evidence indicating the contrary. Moreover, the continued police interest in his condition and whereabouts, given his role as a witness, are not inconsistent with his right to leave. There was no testimony that he requested to leave, and although not itself dispositive, his failure to do so is relevant. United States v. Allen, 436 A.2d 1303, 1309 (D.C. 1981); see Guadalupe v. United States, 585 A.2d 1348, 1353-54 (D.C. 1991). We conclude that appellant was not seized and further, that even if he was seized, the detention did not exceed the bounds of a permissible Terry stop.

Appellant's argument that he was in custody during this initial period of time, and therefore that he had a Fourth Amendment right to be given the Miranda warnings, is even less well founded. "Custody" is present only when the individual's freedom of movement is curtailed to the "degree associated with a formal arrest." See Berkemer, supra note 7, 468 U.S. at 439-40 (quoting Beheler, supra note 7, 463 U.S. at 1125); E.A.H., supra, 612 A.2d at 838; McIlwain, supra note 7, 568 A.2d at 472. The initial level of detention, even if sufficient to constitute a seizure, did not constitute custody, and the admission of statements given during that time, therefore, did not violate Miranda. See E.A.H., supra, 612 A.2d at 838 ("a restraint on liberty which would constitute a seizure under the doctrine of Terry. . . does not necessarily place the seized person in custody for Miranda purposes"); McIlwain, supra note 7, 568 A.2d at 473.


Appellant next asserts that regardless of what happened earlier, the government failed to satisfy its burden of demonstrating that appellant came to the homicide office voluntarily and was neither placed in custody nor seized during the unexplained time interval between the time appellant was at the hospital and the time he arrived at the homicide office. *fn8 He urges this court to recognize that in the absence of any evidence as to the events that occurred during this time, the court must find that the government failed to satisfy its burden and therefore, that appellant did not travel to the office voluntarily. It is undisputed that there was no probable cause to arrest appellant at the time he was transported to the homicide office, so if, indeed, he was seized at this point, such a seizure, exceeding the bounds of a permissible Terry stop, would be illegal, violating the Fourth Amendment. Allen, supra, 436 A.2d at 1309.

For two reasons we are not persuaded that appellant was illegally seized. First, even assuming that the government has the burden of proof on the point, the government did sufficiently prove that the interaction between appellant and the police from the initial contact to the hospital was voluntary and likewise that the appellant's remaining at the police station after his arrival there was also voluntary. See Kelly, supra, 580 A.2d at 1285; Bridges v. United States, 392 A.2d 1053, 1056 (D.C. 1978), cert. denied, 440 U.S. 938, 59 L. Ed. 2d 498, 99 S. Ct. 1286 (1979); see also Oregon v. Mathiason, 429 U.S. 492, 50 L. Ed. 2d 714, 97 S. Ct. 711 (1977) (per curiam). Such being the case, there is no reason to think other than that the appellant's accompanying the police to the police station was also the result of his voluntary desire to cooperate with the police in the presentation of his full account of the events.

Second, even if it is assumed that the trip from the hospital to the police station was involuntary or indeed, the initial contact viewed as a Terry seizure was continued for an impermissible amount of time by the transportation to the hospital, we think that the events that occurred at the police station effectively dissipated any taint of unlawful seizure prior to that point.

Evidence discovered as the result of an illegal seizure generally must be suppressed as "fruit of the poisonous tree." This rule applies to both physical evidence and testimonial evidence. Wong Sun v. United States, 371 U.S. 471, 484-86, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963); United States v. Mergist, 738 F.2d 645, 647 (5th Cir. 1984). If, however, "an intervening event or other attenuating circumstance purges the taint of the initial illegality," the evidence need not be suppressed. United States v. Wood, 299 U.S. App. D.C. 47, 52, 981 F.2d 536, 541 (1992) (quoting United States v. Jordan, 294 U.S. App. D.C. 227, 231, 958 F.2d 1085, 1089 (1992)). Once an illegal seizure is established, the government bears the burden of proving "that the causal chain was sufficiently attenuated by an independent act to dissipate the taint of the illegality." Id. Brown v. Illinois, 422 U.S. 590, 603-04, 45 L. Ed. 2d 416, 95 S. Ct. 2254 (1975). *fn9 The statements made and evidence recovered subsequent to the postulated seizure must have been "sufficiently an act of free will to purge the primary taint." Wong Sun, supra, 371 U.S. at 486 (1963); see Brown, supra, 422 U.S. at 603. There must be a break in "the causal connection between the illegality and the confession." Gayden, supra, 492 A.2d at 875 (quoting Brown, supra, 422 U.S. at 603).

The Supreme Court has enumerated a number of factors relevant to the determination of whether statements made after a seizure violative of the Fourth Amendment were sufficiently attenuated such that the taint of illegality was dissipated.

The Miranda warnings are an important factor, to be sure, in determining whether the confession is obtained by exploitation of an illegal arrest. But they are not the only factor to be considered. The temporal proximity of the arrest and the confession, the presence of intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct are all relevant.

Brown, 422 U.S. at 603-04 (internal footnotes and citations omitted); see Taylor v. Alabama, 457 U.S. 687, 690, 73 L. Ed. 2d 314, 102 S. Ct. 2664 (1982); Dunaway v. New York, 442 U.S. 200, 218, 60 L. Ed. 2d 824, 99 S. Ct. 2248 (1979). While a reading of the Miranda rights alone is not sufficient to dissipate an illegal seizure, *fn10 Dunaway, supra, 442 U.S. at 217; Brown, supra, 422 U.S. 590 at 604; Gayden, supra, 492 A.2d at 875, there was far more than that here. The subsequent conduct and events made it clear that appellant was entirely free to leave and any further stay or conversation was purely appellant's voluntary decision and that this was plainly conveyed to appellant. We hold that the actions of the detectives at the homicide office, and especially the repeated reminder that appellant was not under arrest and that he was free to leave, cf. Dunaway, supra, 442 U.S. at 212 (Court found significant that suspect was never told that he was free to leave); Allen, supra, 436 A.2d at 1309 (same), constitute sufficient attenuation such that any possible taint of an earlier seizure (which we only postulate) was dissipated. See Rawlings v. Kentucky, 448 U.S. 98, 65 L. Ed. 2d 633, 100 S. Ct. 2556 (1980).

When appellant was brought to the homicide office, he was not handcuffed. He was asked if he wanted anything to make him more comfortable, such as cigarettes, the use of the men's room, or anything to drink or eat. He was then brought to the interview room by Detective Stanton, and asked to have a seat. Detective Stanton read the Miranda warnings to appellant, except that appellant was advised that he was not under arrest. Appellant was at the homicide office only fifteen to thirty minutes before the warnings were read to him. When appellant signed the PD-47 "rights" card, the detectives "showed that at any time that he wanted to stop, he could stop, and he was free to get up and leave." The detectives were not carrying guns. They asked appellant if he would tell them what happened, and he responded, "sure, no problem." They proceeded to question him. Most tellingly, the Conclusion that appellant's presence at the homicide office at this point was utterly voluntary is strengthened by appellant's own words at trial, squarely stating that he was repeatedly told by the police: "If you want to leave, you can leave anytime you want." *fn11

The strength of the acts required to dissipate an illegal seizure can fairly be seen as a function of the severity of the initial unauthorized seizure. Hence where, as here, the initial seizure must be deemed permissible under a Terry analysis, so that its unauthorized nature flows only from the extended duration or from an assumption arising from a lack of proof demonstrating voluntariness, we think it sufficient that it was made clear to appellant in the strongest possible terms that his continued presence at the homicide office and conversation with the police was totally voluntary. This was sufficient to attenuate the taint of illegality stemming from any initial seizure and to render the subsequent statements admissible. *fn12 Nothing that occurred during the extended period of dialogue with the police demonstrates a change in the voluntary nature of appellant's remaining at the police station until his arrest, as found by the trial court.


Appellant argues that even if he originally spoke with the detectives at the homicide office on a voluntary basis, there came a point at which the questioning could no longer continue. Appellant focuses on one particular event, namely, his request that he be allowed to make a telephone call to his father "because his father had an attorney he would refer to him." Appellant argues that under the doctrine of Ruffin v. United States, 524 A.2d 685 (D.C. 1987), cert. denied, 486 U.S. 1057, 100 L. Ed. 2d 927, 108 S. Ct. 2827 (1988), this amounted to at least an "ambiguous" invocation of the right to counsel, and therefore the police could not continue to interrogate him without a "clarification" of whether or not he was invoking his right to counsel. He further asserts that the detectives failed to adequately clarify his wishes, and all statements made after this point, therefore, were a violation of his rights under Miranda.

The basic fallacy of this argument is that it postulates that appellant was in "custodial interrogation" when he made the statement. In fact, as indicated above, he was not. Therefore, the statement was not a Ruffin invocation of the right to counsel, which accrues under Miranda only within the context of custodial interrogation. *fn13 The Ruffin clarification requirement only arises when Miranda is applicable, which is only in the event of custodial interrogation. The difficulty with appellant's argument that the requirement applies in this case is that in the context of voluntary dialogue, it makes no sense. By definition, if a person who is not in custody no longer wishes to speak to the police for whatever reason (including not wishing to speak in the absence of counsel), the person may simply walk away. The need for the Ruffin clarification is that the option to walk away is not available to the individual who is held in custody.

At most, appellant's request could have been an indication that appellant no longer wished to speak with the police, but this is belied by the record. In response to appellant's request, Detective Stanton dialed the number given to him by appellant and then handed the receiver to appellant. Detective Stanton moved away from appellant and sat at a desk which was eight or nine feet away and Detective Johnson "was in the general vicinity." The conversation lasted approximately six to eight minutes, and appellant ended the telephone call on his own accord. When Detective Stanton saw appellant hang up the telephone, he went over to where appellant was standing and asked appellant whether he still wanted to talk to the detectives or whether he wanted to stop talking. Detective Stanton then asked appellant several questions to ensure that appellant still wanted to talk of his own free will, that he was aware that he was not under arrest, and that he was aware that the rights which had been read to him earlier still existed. Appellant indicated that he understood. Detective Stanton told appellant that he was not under arrest and that he was free to go if he wanted to, and that he did not have to talk to the officers if he did not want to. Appellant responded that he did not want to stop, that he knew his father was not going to do anything to help him, and that he did not care about his father anyway. Detective Stanton testified that in order to be ensure that appellant wanted to talk on his own free will, he reiterated the fact that appellant need not talk to the detectives. He asked appellant whether appellant realized that he was not under arrest, stating that it was just an "open interview," and that appellant was free to go. Appellant responded "yeah." Detective Johnson testified that they "asked him . . . would he like to continue talking," and appellant said yes. Appellant then returned to the interview room with the two detectives, and the questioning continued. The questions asked and actions taken by Detectives Stanton and Johnson after appellant's telephone call were clearly sufficient inquiry into the voluntariness of further questioning. *fn14

Since all statements made by appellant prior to the formal arrest were admissible, and since it was these statements that led to the final determination of probable cause, it follows that the statement made after arrest is likewise not suppressible. *fn15 Accordingly, we reject the argument of appellant that on retrial, the challenged statements and the physical evidence must be suppressed as unconstitutionally obtained.


Appellant's final argument is that the trial court erred in its denial of appellant's motion for judgment of acquittal on the first degree murder while armed counts. *fn16 Appellant contends that the government failed to present sufficient evidence of premeditation or deliberation in either of the two deaths. In reviewing a denial of a motion for judgment of acquittal, this court must view the evidence in the light most favorable to the government, Curry v. United States, 520 A.2d 255, 263 (D.C. 1987), giving deference to the fact finder's right to weigh the evidence, determine the credibility of the witnesses, and draw inferences from the evidence presented, In re L.A.V., 578 A.2d 708, 710 (D.C. 1990). We can only reverse a conviction on this ground if there is "no evidence upon which a reasonable mind could infer guilt beyond a reasonable doubt." Head v. United States, 451 A.2d 615, 622 (D.C. 1982).

To convict on a charge of first degree murder while armed, the government must establish that the defendant intentionally killed another human being with premeditation and deliberation, see D.C. Code § 22-2401(a) (1989). To prove premeditation, the government must demonstrate that the defendant, before acting, thought about the idea of taking a human life and reached a decision to kill. McAdoo v. United States, 515 A.2d 412, 427 (D.C. 1986). To prove deliberation, the government must demonstrate that the defendant acted with consideration and reflection upon the preconceived decision to kill. Id. "Premeditation and deliberation may be inferred from surrounding facts and circumstances." Id.

All the evidence presented at trial, taken together, supports that trial court's denial of the motion for judgment of acquittal. Brenda and Kianna Sams were each stabbed repeatedly over their entire bodies and suffered numerous blunt force injuries on their heads and faces. While multiple stab wounds do not alone support an inference of premeditation and deliberation, they can properly be joined with other factors to support such an inference. See Austin v. United States, 127 U.S. App. D.C. 180, 190 n.22, 382 F.2d 129, 139 n.22 (1967). Other factors supporting the inference include the use of a kitchen knife in the murders (allowing the jury to infer that appellant carried the knife from the kitchen to the bedroom with the intention of using it to kill Brenda and Kianna) and the fact that there were two victims, killed in separate rooms at separate times. See Mills v. United States, 599 A.2d 775, 782 (D.C. 1991). Examining all the evidence in the light most favorable to the government, we cannot say that no reasonable jury could infer that the murders were committed with premeditation and deliberation and that the defendant was guilty of first-degree murder beyond a reasonable doubt.

Reversed and remanded.

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