Appeal from the Superior Court of the District of Columbia (F-632-90) (Hon. Rufus G. King, III, Motions Judge).
Before Terry, Farrell, and Washington, Associate Judges.
The opinion of the court was delivered by: Farrell, Associate Judge
In this government appeal from the grant of post- conviction relief, see D.C. Code § 23-110 (2001), two questions are presented. First, was appellee (hereafter Little) in custody for purposes of Miranda v. Arizona, 384 U.S. 436 (1966), when in response to police interrogation he gave a written statement implicating himself in the murder of Donnell Perry? Second, if so, did his trial attorney render ineffective assistance of counsel by not filing a pretrial motion to suppress the statement, which the government acknowledges was made without prior advice and waiver of Little's Miranda rights? We hold, on the basis of the facts established at the post-conviction hearing, that Little was in custody at the time of the statements to the police and that, under the standards of Strickland v. Washington, 466 U.S. 668 (1984), the trial court correctly ruled that his Sixth Amendment right was violated, entitling him to a new trial. *fn1
A jury found Little guilty of the armed first-degree murder of Donnell Perry and related weapons offenses. The death resulted from an argument between Perry and the girlfriend of Christopher Williams, which escalated into a fight between Williams and Perry and a resolve by Williams to kill Perry "before he kills me." The government's evidence showed that Williams, Little, and two other men approached Perry thereafter as he was seated in a car, and that Williams and Little each fired gunshots into the car. Shots from one of the guns killed Perry. During its case in chief, the government introduced a*fn2 written statement that Little had made to the police in which he explained that Perry had previously threatened "to come down shooting" if Williams and his friends did not leave the area. In response to this threat, Little said, he, Williams, and others met to "plan what they were going to do." Williams obtained some guns which he distributed to Little and the others, keeping one for himself, and together they went to Perry's neighborhood to ask him "why was he . . . threatening to shoot up [their] place." When they found Perry, he "got smart" with them, provoking one of the group (Donnell Campbell) to instruct Williams, "Shoot him. I'm tired of talking -- I don't care any more." Williams then, according to Little, "pulled out his gun and started to fire." Campbell did the same thing, and Little too pulled out his gun, but apparently instead of shooting (the statement does not say, but implies, that Little did not fire his gun), he turned around and backed up to make sure that no one else "tried to get into it." Little went on to describe his role as "st[anding] guard" or "watch[ing their] back" while Williams and Campbell fired. After the shooting, the men ran from the scene; Little went to Campbell's house where he planned to stay until "things calmed down."
This court affirmed Little's convictions on direct appeal. He then filed a series of pro se motions to vacate his convictions, alleging that his trial counsel had been ineffective for not moving to suppress the written statement to the police before trial. After the trial judge (Eilperin, J.) denied the motions without a hearing, this court reversed and remanded for an evidentiary hearing on the Sixth Amendment issue. See Little v. United States, 748 A.2d 920 (D.C. 2000). Among other things, the court stated that "[d]espite the trial court's finding of no prejudice under Strickland[, supra], it is difficult to conceive that the improper admittance of the statement" -- assuming it was improper -- "was harmless." Id. at 922.*fn3
At the hearing on remand, the motions judge (King, C.J., to whom the case had been transferred) heard testimony about trial counsel's reasons for not having filed the motion to suppress, as well as about the underlying issue of whether Little's statement to the police had been made while he was in custody, thus implicating Miranda's requirements. The judge then issued a written opinion concluding that Little had been in custody at the relevant time and that, under Strickland, there was a reasonable probability that the result of the trial would have been different had the jury not been presented with Little's unwarned written statement. (As we discuss later, the judge did not make the determination required by Strickland of whether counsel's failure to move to suppress the statement "fell below an objective standard of reasonableness." Strickland, 466 U.S. at 688.) The judge granted Little a new trial in accordance with D.C. Code § 23-110 (c).
We consider first the issue of custody, as Little must prevail on his Miranda claim for the analysis to proceed further. See Washington v. United States, 689 A.2d 568, 572 (D.C. 1997) ("[I]f a motion to suppress would not have been successful, then an appellant cannot show the prejudice required by Strickland for a finding of ineffective assistance of counsel").
Because the § 23-110 judge held a hearing and received testimony on the custody issue, our standards of review of his conclusion are the same as they would be had a motion to suppress been filed originally. Although "[t]he trial court's legal conclusion regarding whether the defendant was in custody . . . [is] reviewed de novo, . . . [its] underlying factual findings . . . are reviewed under the 'clearly erroneous' standard," and the record must be viewed "in the light most favorable to the party that prevailed in the trial court" -- meaning that "we must sustain any reasonable inference that the trial [court] has drawn [in Little's favor] from the evidence." Morris v. United States, 728 A.2d 1210, 1215 (D.C. 1999) (citations omitted).
"Custodial interrogation" under Miranda means "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." Miranda, 384 U.S. at 444. Although "'the circumstances of each case must certainly influence' the custody determination, . . . 'the ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest.'" Yarborough v. Alvarado, 2004 U.S. LEXIS 3843 at **19-20 (June 1, 2004) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)). This in turn requires "two discrete inquiries":
first, what were the circumstances surrounding the interrogation; and second, given those circumstances, would a reasonable person have felt he or she was not at liberty to terminate the interrogation and leave[?] Once the scene is set and the players' lines and actions are reconstructed, the court must apply an objective test to resolve the ultimate inquiry: was there was a ...