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In re G.E.

July 21, 2005

IN RE G.E.
DISTRICT OF COLUMBIA, APPELLANT.



Appeal from the Superior Court of the District of Columbia. (DEL-1760-04). (Hon. Hiram E. Puig-Lugo, Trial Judge).

The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge, Superior Court of the District of Columbia

Argued May 26, 2005

Before SCHWELB and FARRELL, Associate Judges, and BLACKBURNE-RIGSBY, Associate Judge, Superior Court of the District of Columbia.*fn1

At issue in this appeal is whether a police officer's question to G.E. "Are you sure?" after he was notified of and unequivocally invoked his Miranda*fn2 rights constituted further interrogation of G.E. while in police custody in violation of Miranda and Edwards v. Arizona, 451 U.S. 477 (1981). On July 29, 2004, fourteen-year-old G.E. was arrested and taken into custody by the Metropolitan Police Department ("MPD") after an eyewitness to a homicide that occurred on July 21, 2004, positively identified him. The trial judge granted G.E.'s motion to suppress his post-Miranda statements and found that G.E.'s constitutional rights were violated when the police officer initiated further interrogation after G.E. had invoked his Fifth Amendment right to counsel. The District of Columbia appeals the order granting the motion to suppress, arguing that instead it was G.E. who initiated conversation with the police officer in a separate exchange that immediately followed the police officer's question "Are you sure?" We reject this argument. Accordingly, we affirm and hold, under the circumstances of this case, that the police officer's question constituted unlawful interrogation of G.E. after he unequivocally invoked his Fifth Amendment right to counsel.

I.

A. Factual Background*fn3

On the evening of July 21, 2004, a homicide was committed on the corner of Georgia Avenue and Quincy Street, N.W. On July 29, 2004, at approximately 9:30 p.m.,*fn4 while riding his bike with a friend, G.E., the fourteen-year-old appellee, was arrested, handcuffed and brought into the custody of the MPD for questioning.*fn5 Officer Philip Burggraf, the arresting officer, testified that he was riding in his car with Xavier Brown, whom he first saw on the sidewalk of Georgia and Quincy on the day of the homicide and later spoke to on July 28 and 29, 2004, regarding his recollection of the suspect. Mr. Brown is also a cousin of the decedent. Mr. Brown positively identified G.E. to Officer Burggraf when G.E. was arrested. Officer Burggraf testified at the hearing that G.E. was cooperative at the time of his arrest.

G.E. was transported to the Violent Crime Unit, Homicide Division of the MPD where he was introduced to Detective Anthony Paci, a detective assigned to the Violent Crime Unit. Detective Paci noted in his investigative report*fn6 that G.E. arrived at the Violent Crime Office at 11:00 p.m. Detective Paci testified that there he observed that G.E. was "kind of nervous because he didn't know what really was going on at first." Immediately upon entering the interrogation room, G.E. confessed that he had lied to the arresting officer about his age, stating that he was fourteen rather than seventeen as he stated originally.

After G.E. stated his correct age, Detective Paci handed him a Police Department Form 47 ("PD 47"), which is also referred to as a Miranda rights waiver card. The PD 47 form is entitled "WAIVER" and contains the following four questions:

1. Have you read or had read to you the warnings as to your rights?

2. Do you understand these rights?

3. Do you wish to answer any questions?

4. Are you willing to answer questions without having an attorney present?

G.E.'s PD 47 card was introduced as an exhibit at the hearing. Detective Paci had handwritten the date and time of July 29, 2004, 11:00 p.m. on the PD 47 form and signed it. The detective verbally gave G.E. his Miranda rights and then asked him whether he could read or write, which G.E. answered in the affirmative. Then the detective asked him the four questions contained on the card.

Detective Paci's testimony regarding this portion of the interview forms the basis of this appeal and is transcribed below:

MR. ZIRPOLI (Government Counsel): Would you tell the Court what question one is please?

DETECTIVE PACI: (Reading from document) "Have you read or had read to you the warning as to your rights?" The answer is, "Yes," and he has his initials "G.E." behind that answer.

MR. ZIRPOLI (Government Counsel): What's question two?

DETECTIVE PACI: "Do you understand these rights?" "Yes." His ...


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