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December 31, 1998


Appeals from the Superior Court of the District of Columbia. [724 A2d Page 1164]

Before Wagner, Chief Judge, and Ruiz,[fn*] Associate Judge, and Kern, Senior Judge. [fn*] Former Associate Judge Ferren was a member of the division that heard oral argument in this case. After his departure from the court, Associate Judge Ruiz was selected by lot to replace him.

The opinion of the court was delivered by: Wagner, Chief Judge:

Appellant, Robert V. Davis, was convicted of second degree murder while armed and related weapons offenses in connection with the death of Benjamin Holley. *fn1 He argues for reversal on the principal ground that the trial court erred in admitting his videotaped confession. Specifically, he contends that his videotaped confession, although given after an informed waiver of his privilege against self-incrimination, was inadmissible because the police deliberately failed to administer Miranda warnings in obtaining from him an earlier custodial, incriminating statement. *fn1 The trial court found that the first statement [724 A2d Page 1165]

was not coerced, but voluntarily given and that Davis voluntarily, knowingly and intelligently waived his Miranda rights before making the subsequent statements. In Oregon v. Elstad, 470 U.S. 298 (1985), the Supreme Court held that an accused's voluntary post-Miranda statement is admissible, notwithstanding that the police obtained from him a pre-Miranda statement, provided that the unwarned statement was not coerced. 470 U.S. at 318. We find no clear error in the trial court's factual findings, and its ruling is consistent with the holding in Elstad. Our independent review of the record leads us to conclude, under the totality of the circumstances, that Davis' unwarned statements were voluntary. See Miller v. Fenton, 474 U.S. 104, 113 (1985). Finding no grounds for reversal based upon Davis' other claims of improper exclusion of evidence and failure to instruct on voluntary manslaughter, we affirm.

I. The Suppression Hearing

A. The Evidence

Benjamin Holley was shot and killed on November 25, 1994, in the 5100 block of Astor Place, S.E., Washington, D.C. According to the evidence at the suppression hearing, Davis was arrested for the crime at about 4:00 p.m. on January 14, 1995, pursuant to an arrest warrant. Davis testified that he was taken to an office at the Police Department between fifteen to thirty minutes after he was stopped. Detective Gregory Sullivan, who had been investigating the case, arrived at the homicide office about 5:00 p.m. Sullivan and his partner, Detective Benjamin Collins, first spoke with Davis there about 5:30 p.m. and informed him he was under arrest for the murder of Benjamin Holley in the 5100 block of Astor Place. The detectives left the room for fifteen to twenty minutes to prepare paperwork, and they observed Davis through a video monitor during that time. Detective Sullivan testified that he knew that Davis had not been given his Miranda warnings, but he made the decision not to read them to him when he returned to the interview room. When the detectives returned to the room around 6:00 p.m., the detectives told Davis that they had learned that he and Angela Daniels (Peanut) shot Holley and that the police had recovered the weapons used. Detective Sullivan told Davis that he could get thirty-five years to life for the offense. About 6:20 p.m., the detectives told Davis that they had spoken to "Peanut," which was not true, and that they "understood that Peanut had the nine millimeter and that Mr. Davis had the AK." Davis blurted out that "Peanut had the AK, I had the nine." Shortly thereafter, Davis asked Detective Sullivan to leave the room, and Sullivan complied. Davis testified that the reason he asked Sullivan to leave the room was because Sullivan seemed aggravated with his answers, and he did not like Sullivan's hostile attitude, although Sullivan said nothing.

After Detective Sullivan left the room, Detective Collins interviewed Davis until about 6:45 p.m., and Detective Sullivan observed them on the video monitor. Davis told Detective Collins that he had shot Holley with the nine millimeter weapon and that Daniels shot Holley with the AK-47. At one point, Davis said that he knew that this day was coming. Sometime after admitting his involvement in the murder, Davis mentioned that he had a sister who was a police officer. Collins said that he knew her and had a "pretty close working relationship" with her. After Davis made the inculpatory admissions, Detective Collins told him that this day would change his life and that he should "stand up and be a man and accept whatever comes down the road."

About twenty-five minutes later, at about 7:00 p.m., Detective Collins advised Davis of his Miranda rights, and Davis signed a PD-47 rights card indicating that he wanted to waive his rights. Davis gave a videotaped statement at 7:11 p.m. At the beginning of the videotape, Davis confirmed the rights that Detective Collins had read to him. Davis also acknowledged that he had waived these rights in writing on the back of the rights card where he signed his signature. *fn2 [724 A2d Page 1166]

Davis then gave substantially the same statements that he had made previously. After the taped statement, Davis telephoned his sister and told her that he shot someone. *fn3 The videotape of the statement was played for the court during the suppression hearing. *fn3

During the time that Davis was in the interview room, he was seated in a chair with his left arm handcuffed to a bolt which was affixed to the floor. Sullivan testified that they made no threats or promises to Davis and that Davis was not reluctant to talk. Sullivan said that they did not become angry at Davis, express disgust or engage in any different role playing (e.g., good cop/bad cop) for purposes of the interrogation. The detectives did not take their weapons into the interview room. Detective Sullivan said that Davis requested cigarettes and a drink before 6:30 p.m., and they provided both. Sullivan also testified that Davis did not appear to be uncomfortable or under the influence of drugs or other intoxicants during the interview.

Davis testified that he was eighteen years old at the time of his arrest in this case and went to the tenth grade, although he did not complete the grade. He acknowledged arrests while a juvenile for unauthorized use of a motor vehicle and simple assault and a traffic arrest four days before his arrest in this case. However, Davis could not recall whether he had ever been advised of his Miranda rights. Consistent with the detectives' testimony, Davis admitted that the detectives did not threaten him or make him any promises. He also testified that he did not believe the detectives had spoken to Peanut, as they said, because the detective showed him a paper purporting to show that Peanut had been locked up three days earlier, and Davis had seen Peanut just two days ago. Davis stated that he thought that he had telephoned his sister before he filled out the rights card. He admitted that he told her that he had been arrested for murder and that "there is no use in not talking, I already talked to him and I did it."

B. The Trial Court's Ruling

The trial court found that Davis' pre-Miranda statement was made voluntarily and without coercion and that Davis' second statement was preceded by full Miranda warnings of rights, which Davis knowingly, voluntarily and intelligently waived. In reaching the voluntariness determination, the trial court considered the totality of the circumstances. Specifically, the court took into account: (1) Davis' age, prior arrests, and the absence of any police promises, threats, mistreatment or the display of weapons; (2) that Davis was not under the influence of drugs or alcohol, confused or upset; (3) that he answered questions directly and appeared to understand what was transpiring; *fn4 (4) that while uncomfortable, Davis appeared to be in no pain, and handcuffing was routine procedure in a murder case; and (5) that the detectives' falsehood about the gun was designed to elicit a truthful statement, not an untruthful one. Assuming, without deciding, that Detective Sullivan was annoyed by Davis' responses and told him that they would be there all day, the trial court found "that this had very little impact upon [Davis'] [724 A2d Page 1167]

decision to provide information to the police." The court found that the circumstances showed that Davis was not compelled to talk, and it appeared, therefore, that he had acted out of moral compulsion. Having found the pre-Miranda statement to be voluntary, the court determined that the post-Miranda videotaped statement was admissible under Elstad, supra. The court also found that Davis made the statement to his sister after Miranda warnings, and therefore, ruled it admissible.

AII. Analysis

Davis argues that the trial court erred in ruling that the post-Miranda videotaped statement was admissible under Elstad, supra. He advances two reasons for the trial court's error, specifically that: (1) contrary to the court's findings, the statement was not voluntary; and (2) Elstad is inapplicable where the police deliberately decide to forego Miranda warnings until after interrogation which results in a confession.

In Elstad, supra, the Supreme Court held that the accused's pre-Miranda statement does not necessarily render inadmissible a subsequent statement made after Miranda warnings. Elstad, 470 U.S. at 314; Cowan v. United States, 547 A.2d 1011, 1015 (D.C. 1988). Where the police question a suspect without administering the required Miranda warnings of rights, there is a presumption of compulsion, rendering the statement excludable from evidence in the government's case in chief, even if otherwise voluntary in the context of the Fifth Amendment. Elstad, 470 U.S. at 307. "Despite the fact that patently voluntary statements taken in violation of Miranda must be excluded from the prosecution's case, the presumption of coercion does not bar their use for impeachment purposes on cross-examination." Id. (citing Harris v. New York, 401 U.S. 222 (1971)).

Under Elstad, supra, a voluntary statement given after Miranda warnings is admissible even if the accused has given a prior unwarned statement, provided such prior statement was not coerced. 470 U.S. at 318; United States v. Gale, 293 U.S. App. D.C. 218, 223, 952 F.2d 1412, 1417 (1992). The focus of the admissibility determination is whether the second statement was in fact voluntary. Elstad, 470 U.S. at 318. The Supreme Court explained further that

[i]t is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

Id. at ...

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