Appeals from the Superior Court of the District of Columbia (F3028-02 & F1986-02) (Hon. Russell F. Canan, Trial Judge).
The opinion of the court was delivered by: Nebeker, Senior Judge
Before WASHINGTON, Chief Judge, FARRELL, Associate Judge, and NEBEKER, Senior Judge.
These appeals from convictions require the court to decide whether admission of a confession by each appellant was harmless beyond a reasonable doubt. The trial court had denied their motions to suppress the confessions, but after these appeals were noted, the Supreme Court of the United States decided Missouri v. Seibert, 542 U.S. 600 (2004), which, as the government recognizes, renders the confessions inadmissible.
The threshold for harmlessness in erroneously admitting a confession has been set quite high. Chapman v. California, 386 U.S. 18 (1967). If there is no reasonable possibility that the offending evidence might have contributed to the conviction, the error is harmless beyond a reasonable doubt. Dancy v. United States, 745 A.2d 259, 273 (D.C. 2000). We hold as to appellant Woodard that admission of his confession is not harmless by the Chapman standard. As to appellant McCoy, we hold the admission of his confession is harmless by that standard. The other issues McCoy raises -- severance and sufficiency of the evidence -- we hold do not require reversal. Nor are we persuaded by McCoy's argument that the use of redacted statements presents a viable confrontation issue.
In March 2002, two cars sped adjacent to one another through the Third Street Tunnel of this city. Gunfire from someone in the Volvo struck both occupants of the Chevrolet. Ebony Byrd, the passenger in the Chevrolet, helped the driver, Michael Cary, get to the hospital. While recuperating from his injuries there, police interviewed Cary, who identified appellant Darryl Woodard as the shooter.
Police then arrested Woodard and had him wait at the interview room at the station house. Thereafter, they questioned him about the shooting without giving him warnings, as required by Miranda v. Arizona, 384 U.S. 436 (1966). Throughout the ensuing forty-five minutes of continuous interrogation, Woodard implicated co-appellant Edward McCoy as the actual shooter, and also made incriminating statements against himself. Police then administered the Miranda warnings, obtained a waiver of his rights, activated an audio tape recorder, and had Woodard repeat the confessions he had just made to them. Several weeks later, McCoy was arrested on unrelated warrants, and police subsequently questioned him regarding the Third Street Tunnel shooting. Their "question first, Mirandize later" interrogation tactics closely resembled those used on Woodard, in that the officers' lengthy and persistent questioning resulted in incriminating statements, at which point the officers finally administered warnings, obtained a waiver, and had McCoy repeat the confession on videotape.
Before trial, both appellants moved to suppress the recordings of their post-Miranda confessions to the police. The motions were denied, and at trial, the tapes were admitted against them.*fn1 Appellants also moved to have their trials severed, but the court also denied this motion. The government then presented several witnesses, including victims Cary and Byrd. Cary and Byrd, who lived in the Lincoln-Westmoreland apartment complex, testified that on the night in question, they were at a nightclub in Prince George's County and attempted to have their picture taken at a photo booth there. They were unable to do so, though, because Woodard began dancing between them and the camera. Cary recognized Woodard and some of his friends there as residents of the Sursum Corda neighborhood. After a heated exchange of words, Cary once more attempted to have a photo taken, only to notice that Woodard's dancing again obstructed the camera. A brief fist fight ensued between Cary, Woodard, and their respective groups of friends, but thereafter for the following two hours, the nightclub remained peaceful.
As Cary left the club, he saw Woodard and three others walk to a Volvo. Cary drove away in the Chevrolet, only to notice that the Volvo was in pursuit. As Cary sped up, the Volvo did too, until both vehicles were moving rapidly through the Third Street Tunnel. At trial, Byrd remained reticent as to whom she saw shooting at her; the prosecution then impeached her with her grand jury testimony, in which she said that the Volvo pulled up alongside of the other car and that Woodard shot at them from the Volvo. As the shots rang out, Cary testified that he heard Woodard shout "stop bullshitting," though Cary also admitted that at the time, he was more concerned with dodging the bullets than noting who was in the other car.
The government then presented Todd Lawton as a witness. Lawton also testified in regards to the photo booth scuffle, essentially corroborating Cary's story on that point. The Volvo did not leave until the Chevrolet did. He recounted that during the ride from the club, he was in the back seat of the Volvo with Woodard, while Jerome Edwards drove and McCoy sat in the front passenger seat. As the cars approached the Third Street Tunnel, McCoy shouted at Edwards to maintain pace alongside the Chevrolet. Lawton testified that, just before the shots were fired, Woodard put his sweatshirt hood over his head, and motioned for Lawton to do the same. Lawton did so because he "thought something was going to happen." His intuitions were correct, because he testified that soon thereafter, McCoy fired several shots at the Chevrolet using a chrome-colored .25 caliber pistol. Police later found a shell casing from an expended .25 caliber cartridge in the Volvo.
Next, a Jonathan Paige testified that the blue Volvo belonged to his mother. He knew McCoy "from the neighborhood," and the day after the shooting incident, he went to "confront" McCoy in regards to the incident, because he was upset that McCoy's use of the Volvo was "putting [his] mother in danger." When asked on direct examination how McCoy responded when Paige inquired about his involvement in the incident, Paige testified, "He said he shot out the car," and that McCoy "said he wish he'd never done it."*fn2
The recordings of both Woodard and McCoy's confessions were played to the jury. Woodard was convicted of assault with a dangerous weapon (ADW)*fn3 under an aiding and abetting theory, and of conspiracy.*fn4 McCoy was convicted of conspiracy,*fn5 ADW against Cary (as a lesser included offense of assault with intent to kill while armed)*fn6 and a pendent count of possession of a firearm during that crime (PFCV)*fn7, aggravated assault while armed (AAWA)*fn8 against Cary and a pendent PFCV count, ADW against Byrd*fn9 and a pendent PFCV count, carrying a pistol without a license*fn10 or valid registration,*fn11 possession of ammunition without a license,*fn12 and misdemeanor destruction of property.*fn13 This appeal followed.
The Supreme Court's recent holding in Missouri v. Seibert, supra, establishes that when police purposefully use a "question first, Mirandize later" interrogation technique, postwarning statements related to prewarning statements must be excluded unless curative measures are taken before the postwarning statement is made. 542 U.S. at 604-05, 610-11, 622. That case limited -- or at least explicitly distinguished -- the holdings of Oregon v. Elstad, 470 U.S. 298 (1985), and Davis v. United States, 724 A.2d 1163 (D.C. 1998), which was this court's application of Elstad. Seibert, 542 U.S. at 611. The trial court had relied on both of those decisions in denying the motions to suppress the confessions. Elstad held that, when an interrogator has failed to administer the Miranda warnings in a good-faith but mistaken belief that the warnings were not required, then corrective measures might salvage the fruits of the interrogation. In this case, the government cannot and does not claim that good-faith mistake or curative measures make Elstad or Davis applicable.
However, the government proceeds to argue that, despite the introduction into evidence of the tainted confession, the convictions should still stand because the use of the ...