Appeals from the Superior Court of the District of Columbia (F7749-97) (Hon. Ann O'Regan Keary, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, Associate Judge, and WAGNER and SCHWELB, Senior Judges.*fn1
Opinion for the court by Associate Judge REID.
Concurring opinion by Senior Judge SCHWELB at p.42.
A jury convicted Timothy Hairston, the appellant, of conspiracy to assault and murder members of a rival neighborhood faction of young men, in violation of D.C. Code §§ 22-105a, -501, -2401 (1996);*fn2 first-degree murder while armed (of Arrion Johnson), in violation of § 22-2401 (recodified at § 22-2101); possession of a firearm during a crime of violence or dangerous offense (related to the first-degree murder of Arrion Johnson), in violation of D.C. Code § 22-3204 (b) (recodified at § 22-4504 (b)); assault with intent to kill (Luis Delarosa) while armed, in violation of D.C. Code §§ 22-501, -3202 (recodified at §§ 22-401, -4502); possession of a firearm during a crime of violence or dangerous offense (related to the assault with intent to kill of Luis Delarosa), in violation of D.C. Code § 22-3204 (b) (recodified at § 22-4504 (b)); and carrying a pistol without a license, in violation of D.C. Code § 22-3204 (a) (recodified at § 22-4504 (a)).*fn3
Subsequently, he filed a pro se pleading, which the trial court treated as a motion to vacate sentence under D.C. Code § 23-110 on the ground of ineffective assistance of counsel. The trial court denied his motion.
Mr. Hairston filed a timely direct appeal, and a timely collateral appeal. He claims that the trial court erred by not (1) suppressing his confession based on a violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966); (2) holding an evidentiary hearing on his ineffective assistance of counsel claim; (3) granting his motion for judgment of acquittal on the basis of insufficiency of evidence with respect to the conspiracy charge; and (4) finding that he suffered substantial prejudice due to improper comments by the prosecutor during closing and rebuttal arguments. We affirm.
The record shows that the charges against Mr. Hairston, and others with whom he was indicted and tried,*fn4 resulted from an intense neighborhood dispute between young men in the Clifton Terrace area (the Northwest quadrant of the District of Columbia) during the months of April through October 1997. The dispute between the young men belonging to the "1300 Clifton" and the "1400 Clifton" rival factions escalated into violence, resulting in several deaths and injuries, including the murder of Arrion Johnson, and the injury of Luis Delarosa.
The Motion to Suppress Confession
Mr. Hairston contends in his main brief that his written statement should have been suppressed because his Fifth Amendment constitutional rights were violated. Specifically, he complains that the police "deliberately withheld [his] Miranda rights"; that "[i]nstead of providing Miranda rights prior to their custodial interrogation, police officers tried to exact an incriminating statement from [Mr.] Hairston by confronting him with evidence and questioning him for at least an hour." He maintains that, based on this conduct, the trial court should have suppressed his statement. The government insists in its main brief that Mr. Hairston "voluntarily confessed his role in [Mr.] Johnson's murder after signing a Form PD-47 waiving his Miranda rights," and that, at any rate, he "made a knowing, voluntary, and intelligent waiver [of his Miranda rights] under the totality of the circumstances." (Emphasis in original).
We asked the parties to file supplemental briefs after the Supreme Court handed down its decision in Missouri v. Seibert, 542 U.S. 600 (2004). In his supplemental brief, Mr. Hairston argues that "[b]ecause this case . . . involves a confession obtained through question-first police tactics designed to sap the Miranda warnings of their protective value, this [c]court should reverse the [trial court's] judgment . . . ." He claims that he "was subjected to a brutal series of 'psychological ploys' designed precisely to break his will so that the Miranda warnings, when finally given, were an empty gesture." The government contends that Seibert "was based on an entirely different set of circumstances," and that "an essential factor upon which Seibert is based -- the existence of an unwarned confession . . . is not present here."
Before discussing the parties' arguments, we set forth the pertinent factual context. The government presented evidence showing that on August 22, 1997, Metropolitan Police Department ("MPD") Detective Michael C. Irving obtained an arrest warrant for Mr. Hairston, then an eighteen year-old male, relating to the murder of Mr. Johnson. After obtaining the warrant, Detective Irving advised the officers and detectives in the Third District of the MPD*fn5 "that if they saw [Mr. Hairston, they should] place him under arrest and not to advise him of his rights." Detective Irving delivered this instruction to the other offices because he "wanted to be the one to speak with [Mr. Hairston] when he was arrested."
On September 26, 1997, at approximately 10:00 p.m., Mr. Hairston was arrested in the Third District. Detective Irving was informed that Mr. Hairston had been arrested and "was being transported to the Homicide Branch of the [MPD]," by Sergeant Kirk Sloan of the Gun Recovery Unit. Upon learning of the arrest, Detective Irving instructed Sergeant Sloan to "place [Mr. Hairston] in the interview room and to leave him alone and [that he, Detective Irving,] would be there shortly thereafter."
Detective Irving arrived at the Homicide Branch at approximately 11:00 p.m. or 11:30 p.m. He found Mr. Hairston "in the interview room located on the third floor" of the building, sitting at a table, alone in a small room.*fn6 He was handcuffed to a chain that was attached to the floor. According to Detective Irving, Mr. Hairston was "quiet," was not "injured," was not in any "physical discomfort," did not exhibit any "emotional distress," and "appeared to be okay." Mr. Hairston had been restrained in this room from the time he was arrested and transported to the Homicide Branch, until the time of Detective Irving's arrival, that is, for approximately one and a half to two hours (10:00 p.m. to 11:30 p.m.-12:00 a.m.). He had not been given Miranda warnings before Detective Irving arrived.
When Detective Irving entered the room, he sat down at the table across from Mr. Hairston and introduced himself. Detective Irving "advised [Mr. Hairston] that he had been placed under arrest for murder and that [the detective] was interested in hearing his side of the story as to what happened on the day [Mr.] Johnson was killed.".*fn7 Detective Irving began to outline "some of the facts in the case that [he] was aware of as far as [Mr. Hairston's] participation." He "knew that [Mr. Hairston] was in a van that drove from the 1300 block of Clifton [Street] into [the scene of the murder] at the time [Mr.] Johnson was shot and killed." Mr. Hairston did not ask to speak with an attorney at any point during this conversation.
As this one-sided conversation unfolded, Detective Irving did not immediately advise Mr. Hairston of his Miranda rights.*fn8 Rather, he described some of the details of Mr. Johnson's death -- the van that was used in the killing; and the names of some of the people who were also involved in the murder. Detective Irving told Mr. Hairston that he "just wanted him to listen," because his stated goal at this stage of the interview was to make sure that Mr. Hairston was "aware of some of the facts," and "if [Mr. Hairston] did attempt to speak . . .[, Detective Irving planned to] emphasize that [he] wanted [Mr. Hairston] to listen and not talk at that time."
While recounting the facts of the murder to Mr. Hairston, Detective Irving mentioned that he had already spoken with Am[o]s Chaney, another suspect in the case, that Mr. Chaney "had already been placed under arrest," and that "Mr. Chaney had already given [Detective Irving] a statement."*fn9 When Mr. Hairston told the Detective that he did not believe that Mr. Chaney had given the police a statement, Detective Irving "ask[ed] him . . . [if] he want[ed] to see the proof" of the statement. Mr. Hairston "said that he wanted to see the proof."
In response to Mr. Hairston's request "to see the proof," Detective Irving left the interview room and set up a videotape machine in another room. He placed a "videotape in the machine" -- a recording of his interview of Mr. Chaney -- and "turned the volume down." He then "returned to the interview room,  got Mr. Hairston,brought him back into the room with the video monitor," and turned on the videotape recorder so that Mr. Hairston could see Detective Irving "speaking with Mr. Chaney." The detective never turned up the volume so that Mr. Hairston could "hear the contents of the tape." Mr. Hairston watched the video for "a little under a minute" so that he could see that "Mr. Chaney was, in fact, in custody when he spoke to [Detective Irving]." Detective Irving readily acknowledged on cross-examination that his purpose in showing the videotape to Mr. Hairston was "to convince him of the strength of [his] case so that [Mr. Hairston] would fully cooperate."
Detective Irving returned to the interview room with Mr. Hairston and "asked him again did he want any help in his case, and . . . did he want to tell [Detective Irving] his side of the story . . ." Approximately ten minutes after viewing the image of Mr. Chaney speaking with Detective Irving, Mr. Hairston said "yes."*fn10 Detective Irving then administered the Miranda warnings. As Detective Irving testified: "I advised him that I had to -- before he told me his side of the story that I had to advise him of his rights." Detective Irving took the PD-47 card out of his shirt pocket, read Mr. Hairston his rights as they appeared on the card, and "advised [him] that he had to answer the first four questions and sign his name on line number five" of the card. The rights listed on the card included, among others, the right to remain silent and the right to talk with a lawyer. At 12:51 a.m., after being with Detective Irving for approximately one hour, Mr. Hairston answered yes to each question on the card. Mr. Hairston also put his initials, T.H., next to each question and signed "line number five."
After Mr. Hairston signed the waiver card, "the interview again started up," and Mr. Hairston proceeded to implicate himself in the murder of Mr. Johnson. When Detective Irving asked Mr. Hairston questions regarding his involvement in the murder, he initially gave "very vague" answers, and attempted to provide a very limited confession.*fn11 However,
Detective Irving questioned Mr. Hairston for "roughly an hour" and was able to elicit a detailed account of Mr. Hairston's involvement in the murder. Although Mr. Hairston refused to allow his statement to be videotaped, he agreed to "provide a typewritten statement," and eventually signed a five-page statement prepared by Detective Irving. The interview ended at 3:18 a.m.
The trial court denied Mr. Hairston's motion to suppress his statement. The court determined that Mr. Hairston was "in custody," but made his incriminating statement after "he executed a PD-47 at 12:51 a.m." In addition, the court found no dispute that Detective Irving "engaged in an informational discussion with Mr. Hairston in which he attempted to advise Mr. Hairston of much of the information that he had obtained and was aware of related to the shooting . . . of [Mr.] Johnson." This informational discussion was not the functional equivalent of interrogation, and there were no indicia of coercion, under the circumstances. As the trial court stated:
The Court cannot find that the detective's actions were really analogous to the type of conduct that the court has found unconstitutional in cases like Rhode Island [v. Innis, 446 U.S. 291 (1980)]or Arizona v. [Mauro, 481 U.S. 520 (1987).]
I cannot find that it was a staged comment in order to elicit the statements of incrimination from Mr. Hairston. Nor can I find there are indicia of coercion, although he had been arrested about two and [one] half hours before he executed the PD 47. I cannot find that there is anything to show that his ...