Appeal from the Superior Court of the District of Columbia. (Hon. Gladys Kessler, Trial Judge).
Before Ferren and King, Associate Judges, and Belson, Senior Judge.
The opinion of the court was delivered by: Ferren
FERREN, Associate Jugde: Appellant Raphael Trice was charged with assault with intent to commit robbery while armed, D.C. Code §§ 22-501, -3202 (1989 Repl.), and possession of a firearm during a crime of violence, id. § 22-3204 (b). Before trial, he moved to suppress his statement that "I gave it [the shotgun] back to the person I borrowed it from." The trial court denied the motion, and the jury convicted appellant on both counts. This case presents the question whether the "public safety" exception the Supreme Court announced in New York v. Quarles, 467 U.S. 649, 81 L. Ed. 2d 550, 104 S. Ct. 2626 (1984), provides a basis for the government to enter in evidence a shooting suspect's answer to a police detective's question about the location of a gun, even though the question was asked after the suspect had been informed of and asserted his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). We hold that the "public safety" exception may apply after invocation of the right to silence and to counsel and, further, that on the particular facts of this case appellant's response was admissible under this exception. We therefore affirm appellant's convictions. *fn1
The government's evidence at trial showed that Earl Green had been shot while walking near the rear of his residence at 1011 Fourth Street, S.E., just before 2:00 p.m., on Sunday, November 8, 1992. Green testified that appellant had approached him and demanded that Green "give it up"; then appellant shot Green with a shotgun and ran away. According to Green, a second suspect acted as a lookout during the attempted robbery and shooting. Green testified that he recognized both suspects from the neighborhood Green called 911 within a few minutes after the shooting and identified appellant as the shooter. Green identified a photograph of appellant, and later identified appellant in court.
The only witness at the suppression hearing was Detective Neil Trugman of the Metropolitan Police Department. Detec tive Trugman testified that he had arrested appellant at his home, pursuant to an arrest warrant, on November 12, 1994, at approximately 5:30 p.m. While at the home, Detective Trugman also had seen appellant's mother and several small children. Appellant's mother had told Trugman that her son had an attorney. After placing appellant under arrest, Detective Trugman told him that he had the right to remain silent and that anything he chose to say could be used against him. Trugman then drove appellant to the police station and booked him. At the station, the detective gave appellant Metropolitan Police Department Form PD 47, which sets out the arrestee's Miranda rights. *fn2 Appellant and Detective Trugman read the rights card together. Then Trugman asked appellant, "Do you want to answer any questions?" Appellant replied "No." Trugman also asked appellant, "Are you willing to answer questions without having an attorney present," and appellant again answered "No." Appellant then signed the rights card.
For the next twenty minutes Detective Trugman asked appellant for personal background information, which appellant provided. Trugman then asked the following question: "I'd like to know where the shotgun is. There are little kids in the house. I don't want anyone to get hurt." *fn3 Appellant responded, "It's okay. I gave it back to the person I borrowed it from." Trugman did not ask any more questions.
At the Conclusion of the hearing, the trial court found that appellant's statement was voluntary and denied his motion to suppress. The court ruled that the question about the location of the gun was "squarely within the public safety exception that the Supreme Court carved out" in Quarles, 467 U.S. at 655-59.
Appellant contends the trial court erred in denying the motion to suppress because (1) the public safety exception may not be applied to statements made after invocation of the rights to silence and counsel, and (2) even if the exception is available after a suspect has asserted these constitutional rights, it should not be applied in this case because the police detective had not been confronted by an imminent public danger when he asked appellant the question.
In Miranda, the Supreme Court announced a set of procedural requirements intended to help implement and protect the Fifth Amendment guarantee that "no person. . . shall be compelled in a criminal case to be a witness against himself." 384 U.S. at 467-479. Under Miranda, before any custodial interrogation, the police must advise an individual that he or she has the right to remain silent and the right to have an attorney present. See id. at 479. In Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), the Court held that once a criminal suspect entitled to Miranda protection has asserted the right to counsel, that suspect
is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communications, exchanges, or conversations with the police.
In the present case, it is undisputed that, before Detective Trugman asked appellant about the location of the gun, *fn4 appellant had said he would not answer questions without an attorney present. Thus, absent an applicable exception, Edwards would require the suppression of appellant's response to the question about the gun. See United States v. Mobley, 4 ...