Appeal from the Superior Court of the District of Columbia; (Hon. George W. Mitchell, Trial Judge)
Before Schwelb and Farrell, Associate Judges, and Greene, Associate Judge of the Superior Court of the District of Columbia.*
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: Appellant raises multiple challenges to his convictions for felony murder while armed (D.C. Code §§ 22-2401, -3202) (1989), second-degree murder while armed (id. §§ 22-2403, -3202), armed robbery (id. § 22-2901, -3202), possession of a firearm during a crime of violence (id. § 22-3204 (b)), and carrying a pistol without a license (id. § 22-3204 (a)). We remand with directions to the trial court to vacate the convictions for second-degree murder while armed and armed robbery, these having merged with the conviction for felony murder while armed. Otherwise we affirm the judgments of conviction.
The government presented compelling evidence that appellant shot to death Sharon Bryant in the course of robbing her on March 7, 1992. Appellant confessed to the police to having shot Bryant (though claiming a form of self-defense) and admitted the killing and robbery to Steven Moat and Donna Jones. *fn1 Moat, together with William Stalnaker and James Long, witnessed the shooting and robbery. *fn2 The autopsy revealed that Bryant had been shot twice, once in the back.
Appellant first contends that his confession to the police should have been suppressed because, at the time of his arrest but before the police questioned him, he invoked his right to counsel by asking his girlfriend, in the presence of police, to call his mother and tell her to get him a lawyer. At the least, appellant argues that the case should be remanded so the trial Judge can make a finding whether the police heard this statement to his girlfriend. *fn3 The government counters by asking us to hold flatly that a desire for an attorney expressed to a third person, whether or not overheard by police, is not an assertion of the right to counsel under Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981).
We reject appellant's arguments and find it unnecessary to reach the government's broad contention. In combination, the fact that appellant made his request for counsel to his girlfriend (even if the police overheard it), and the content of the statement itself, leave us unpersuaded that appellant clearly asserted his right to the presence of counsel during interrogation, as required by the Supreme Court's most recent pronouncement in this area.
Since Edwards, supra, it has been settled that
if suspect [in custody] effectively waives his right to counsel after receiving the Miranda *fn4 warnings, law enforcement officers are free to question him. But if a suspect requests counsel at any time during the interview, he is not subject to further questioning until a lawyer has been made available or the suspect himself reinitiates conversation.
Davis v. United States, 129 L. Ed. 2d 362, 114 S. Ct. 2350, 2354-55 (1994) (citations omitted). In Davis the Court considered the issue of "how law enforcement officers should respond when a suspect makes a reference to counsel that is insufficiently clear to invoke the Edwards prohibition on further questioning." Id. at 2352. The Court apprehended the need for "a bright line that can he applied by officers in the real world of investigation and interrogation," id. at 2356, and therefore held that, before "the rigid prophylactic rule of Edwards" will apply, id. at 2355 (internal quotation marks and citation omitted), "the suspect must unambiguously request counsel." Id. Otherwise the Court was content to rely upon "the primary protection afforded suspects subject to custodial interrogation," which "is the Miranda warnings themselves." Id. at 2356. Consequently, "if a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel, our precedents do not require the cessation of questioning." Id. at 2355 (emphasis in original). *fn5
Appellant's request to his girlfriend was made before the police questioned him or administered the Miranda warnings. Only after they escorted him to the police station and elicited what he concedes (absent the claimed earlier assertion of his right to counsel) was a valid waiver of his Miranda rights did they interrogate him and obtain his confession. Nonetheless, we must analyze appellant's statement to his girlfriend under the Davis standard, since, if it was the required "clear assertion of the right to counsel," id. at 2356, the later waiver of his Miranda rights would not suffice under Edwards. *fn6 We hold that the statement was not the assertion of the right Davis requires.
The government contends that the request was equivocal given the fact alone that it was made to someone other than the police. A reasonable officer, that is, could not be certain appellant intended to invoke his right since he left it to chance (or at most probability) whether the police overheard the statement. An unambiguous request would be directed to the persons intended to act in conformity with it. There is considerable merit to this point but we do not rest our holding solely on the form of appellant's request -- its direction to a third person. Rather, the content of the statement confirms its ambiguity. Appellant asked his friend to tell his mother to get him a lawyer. While that might convey to a reasonable officer appellant's "desire to deal with the police only through counsel," Edwards, 451 U.S. at 484, it might also -- and not unreasonably -- convey his desire for a lawyer to represent him in court (beginning with the bail hearing), confident meanwhile of his own ability to avoid self-incrimination. The former may be the more plausible interpretation, but "the likelihood that a suspect would wish counsel to be present [during interrogation] is not the test for applicability of Edwards." McNeil v. Wisconsin, 501 U.S. 171, 178, 115 L. Ed. 2d 158, 111 S. Ct. 2204 (1991) (emphasis in original). He must assert that desire clearly, Davis, supra, and appellant did not do so. The ensuing conduct of the police was therefore faultless -- and, indeed, would have met the approval of those Justices in Davis who rejected the Court's "bright line" test. The police "verified whether meant to ask for a lawyer," Davis, 114 S. Ct. at 2364 (Souter, J., Concurring in the judgment), by advising him of his Miranda rights and acceding to his request to be left alone for five to ten minutes to consider whether he wanted to give a statement. Only after he waived his rights to counsel and to remain silent did they interrogate him. There was no violation of Edwards' prophylactic rule. *fn7
Appellant's remaining arguments can be dealt with briefly. First, assuming error in the trial court's failure to make an independent reliability finding as to the in-court identification by Steven Moat, the error was harmless. The evidence was undisputed that Moat had known appellant for at least six months before the shooting in question. Moreover, independently of Moat's identification, the evidence was compelling that appellant shot Bryant repeatedly in ...