Before Reid and Glickman, Associate Judges, and Mack, Senior
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia (Hon. Nan R. Shuker, Trial Judge)
In this case, we are asked to determine whether the trial court erred by denying appellant Stevie Tindle's motion to suppress an audio-taped statement given to the police after he signed a Prince George's County, Maryland police department waiver of rights form *fn1 indicating that he did not want to make a statement without the presence of a lawyer. No lawyer was present during police questioning when Mr. Tindle implicated himself in the stabbing death of Derrick Thrower. At trial, Mr. Tindle's defense was self-defense. Although he was acquitted of the charge of second-degree murder while armed, a jury found him guilty of the lesser included offense of voluntary manslaughter while armed, as well as the offense of carrying a dangerous weapon (knife). *fn2 He filed a timely appeal, primarily contending that, under Edwards v. Arizona, 451 U.S. 477 (1981) and Miranda v. Arizona, 384 U.S. 436 (1966), his audio-taped statement should have been suppressed because his Fifth Amendment right to counsel was violated.
We conclude, as the government candidly concedes, that the trial court erred by failing to suppress Mr. Tindle's audio-taped statement under Miranda/Edwards. In addition, we hold, contrary to the government's position, that Mr. Tindle preserved the claim of error and that, therefore, the constitutional harmless error standard governs Mr. Tindle's case. Finally, we reverse the judgment of the trial court because its error was not harmless beyond a reasonable doubt.
Prior to trial, Mr. Tindle filed a motion to suppress his audio-taped statement. In his motion he argued, in part, that he "did not knowingly, intelligently and voluntarily waive his rights pursuant to Miranda, supra." In addition, he maintained that the audiotape "must be excluded from evidence because the method through which [his] statement was obtained violated the prophylactic standards established to prevent compulsory self incrimination." Mr. Tindle also filed a supplemental motion to suppress, asserting, in part, that he "had not waive[d] either his Fifth Amendment right to remain silent or his Fifth Amendment right to counsel." The trial court denied the motions to suppress, and the case proceeded to trial.
The evidence presented at trial showed that Mr. Tindle, Debra White and Shawn Redfield were together, at an Exxon gas station near South Capitol Street and Martin Luther King, Jr. Avenue, in the Southwest quadrant of the District, during the late evening hours of July 21, 1997, and the early morning hours of July 22, 1997. They ate and talked. In addition, Mr. Tindle smoked cigarettes, and Ms. White and Mr. Redfield used crack cocaine. While they were sitting at the Exxon station, Mr. Thrower, who was a friend of Mr. Redfield, approached the three.
The eyewitness accounts as to what happened next varied. However, Mr. Thrower and Mr. Tindle got into a heated argument, which soon turned into a struggle involving pushing and hitting. Ms. White observed Mr. Thrower pushing Mr. Tindle and hitting him in the chest. She saw Mr. Tindle "rock" toward Mr. Thrower twice. Mr. Thrower put his hands on his chest and ran. Blood was on his t-shirt. Mr. Thrower exclaimed: "You jacked me," and started to move toward Mr. Tindle. Mr. Tindle told him, "Get out of here, man." Mr. Redfield recalled that he pulled Mr. Thrower away from the argument, but that Mr. Thrower broke away, ran back to Mr. Tindle and began to argue again. Suddenly, Mr. Thrower ran back toward Mr. Redfield, saying that he had been stabbed.
In his audio-taped statement, which was played for the jury at trial and admitted into evidence, Mr. Tindle recounted his encounter with Mr. Thrower:
Me and two friends [were] sitting out[side] waiting for [a] car. [A] dude walked by and started talking trash to us. . . . We told him to go ahead and he went down the street and came back. [He] said, "y'all must know who I am, y'all don't know what I'm going to do to y'all." I was sitting in a squatting position and he sort of like took a swing at me and I backed up and before I knew it, I just stepped up and cut [him and] took off running.
Mr. Tindle was asked: "Where did you get the knife from?" He replied, "I don't remember." In response to the question whether Mr. Thrower had "any weapons on him," Mr. Tindle stated: "I don't know. I don't know."
Latisha Johnson, who reluctantly testified for the defense, was talking on a nearby telephone while observing, "ever so often," the altercation between Mr. Thrower and Mr. Tindle. She indicated that when Mr. Tindle intervened in Mr. Redfield's efforts to give Mr. Thrower a cigarette, Mr. Thrower threatened to "bust" Mr. Tindle, then pushed him, and said he had a gun. Mr. Tindle pushed Mr. Thrower, who fell backwards. Mr. Thrower proceeded to leave the scene. However, when Mr. ...