APPEAL FROM SUPERIOR COURT, DISTRICT OF COLUMBIA, LEE SATTERFIELD, J. [705 A2d Page 1101]
Before Terry, Ruiz and Reid, Associate Judges.
The opinion of the court was delivered by: Reid, Associate Judge:
Appellant Keith L. Coates was convicted of assault with intent to rob while armed, in violation of D.C. Code §§ 22-501, -3202 (1996); and carrying a dangerous weapon (knife), in violation of D.C. Code § 22-3204. *fn1 He filed a motion for a new trial. The motion was denied, and he filed a timely appeal contending that his Fifth Amendment constitutional privilege against self-incrimination was violated because (1) the trial court failed to grant a requested mistrial when a police officer was allowed to comment on his silence after the officer had seized him by the pants, thus indicating he was in custody; and (2) the government improperly commented on his pre-arrest and pre-Miranda *fn1 silence during both its closing argument and rebuttal. We affirm the judgment of the trial court.
On May 18, 1995, Xiaohui Jia, an employee of the China Kitchen restaurant, located at 5585 South Dakota Avenue in Northeast Washington, sought to deliver an order to an address on Rock Creek Church Road, Northeast. *fn2 When he arrived at the address, he saw two people sitting between two buildings. One person, whom Mr. Jia identified as Coates, approached him. Coates said that he had ordered the food, and asked Mr. Jia to roll down his car window. Mr. Jia reached for the delivery below the front passenger seat. When he turned around with the food, Coates put a knife on Mr. Jia's left shoulder, near his neck. Mr. Jia asked whether Coates wanted money or the food.
Mr. Jia moved his body, except for his legs, to the front passenger seat. Coates became angry, put his head into Mr. Jia's car and was in the process of directing the knife to Mr. Jia's leg when Mr. Jia pushed his hand away. The knife fell into the cushion, and Mr. Jia handed the food to Coates. [705 A2d Page 1102]
Coates took the food with one hand while his other hand was placed on the knife. He demanded money, and as Coates pulled the knife out of the cushion, it dropped to the floor. When he saw another car come into view, Coates also dropped the food and said, "never mind."
Mr. Jia turned and saw a police patrol car. As he arrived on the scene, Officer Thaddeus Carrington, a fifteen year veteran, saw a struggle between Mr. Jia and Coates, but did not know the nature of the struggle. He heard someone on the sidewalk call out "Keith, Keith, Keith," and then saw Coates begin to walk away from Mr. Jia's car. When Coates called out the officer's name, Officer Carrington recognized him as someone he had known for years. *fn3
Officer Carrington testified as a government witness at Coates's trial. He stated that after Coates called his name, he asked Coates "what was going on. He didn't have a response to the first question." Defense counsel raised no objection to this testimony. The officer then spoke with Mr. Jia and realized that a crime had taken place. *fn4 Coates's theory was that the knife Coates was accused of using actually belonged to Mr. Jia. During Officer Carrington's testimony, he was asked: "Now at the time that you stopped the defendant, did the defendant ever say anything to you or make any indication that the knife came from this gentleman?" Before Officer Carrington could respond, the trial judge, sua sponte, stopped the proceedings and asked both counsel to approach the bench.
The bench conference concerned the due process implications of Coates's silence when Officer Carrington posed questions to him at the scene of the crime before he was arrested. Counsel for Coates did not object when the questions were first posed. Nor did counsel initially object the following day when the bench conference continued. After discussion, focusing in part on whether Coates was in custody or under arrest at the time of his silence, the trial court gave its ruling which reads in part:
while . . . I find the defendant may have been in custody, he was . . . pre-arrest, [pre-Miranda] silence that the government is seeking to use to establish consciousness of guilt[.][U]nder these circumstances, I'm going to allow the Government to ask the question. . . .
The trial court added that Officer Carrington was conducting an investigation to determine what had happened, and was not interrogating Coates. When the trial court had completed its ruling, counsel for Coates said: "I was just going to note a motion for a mistrial based upon the sort of anticipatory motion based on the. . . ." The trial judge interrupted him to say: "I'm not going to rule on that because it hasn't come out yet. . . . But based on the reasons I indicated it will be denied."
When the bench conference ended and the trial resumed, the government did not repeat the question concerning the knife. Rather, the following exchange took place ...