Appeals from the Superior Court of the District of Columbia (F-2594-97, F-2595-97, F-2596-97) (Hon. Frederick H. Weisberg, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before WASHINGTON, Chief Judge, and TERRY and SCHWELB, Senior Judges.*fn1
Appellants Riley and Marks were convicted of two counts of first-degree murder while armed, one count of assault with intent to kill while armed, and one count of possession of a firearm during a crime of violence. Appellant Muhammad was convicted of the same offenses, plus one count each of unauthorized use of a vehicle and destruction of property. On appeal, Riley and Muhammad argue that their Fifth and Sixth Amendment rights were violated during police questioning and that the statements they made to the police should therefore have been suppressed. Muhammad also contends that the trial court abused its discretion in denying his motion to sever his case from those of his co-defendants and in limiting the scope of his counsel's cross-examination. Additionally, each appellant maintains that the admission of his co-defendants' confessions violated the strictures of Crawford v. Washington, 541 U.S. 36 (2004). We affirm.
A. Events Leading Up to the Murders
In the early 1990s, a group of teenagers from Suitland, Maryland, formed a group called the Rushtown Crew.*fn3 The Rushtown Crew was friendly at first with another group from the District of Columbia known as the Fairfax Village Crew. A feud developed between the crews, however, after a fistfight involving members of both groups occurred at a go-go concert. The feud continued to escalate, and in July of 1996, Russell Tyler, a member of the Rushtown Crew, was shot and wounded (but not killed) by members of the Fairfax Village Crew. Following this shooting, the three appellants, who were associated with the Rushtown Crew, discussed going to the Fairfax Village area and shooting at members of the rival crew.
A few weeks after Russell Tyler was shot, Lawrence Lynch, also a member of the Rushtown Crew, was shot and killed. The day after this shooting, some members of the Rushtown Crew, including the three appellants and two of their acquaintances, Wayne Brown and James Stroman, were discussing Lynch's murder. Appellant Muhammad was "doing more of the talking than others." He declared that the Rushtown Crew "should go [to Fairfax Village] and handle their business," that the Fairfax Village Crew had "gone too far," and that it was time that "they got theirs." Appellant Marks then asked to borrow Brown's pump shotgun "to have it around his house just in case Fairfax Village came back through, shooting again."
On the evening of August 20, 1996, Muhammad told Stroman that he had found out where some members of the Fairfax Village Crew were going to be that night. Stroman, Muhammad, and Riley then drove to Marks' house and picked him up. They were riding in a blue Chevrolet Spectrum that Muhammad had stolen the night before from Shadyside Gardens. Muhammad told Stroman that the four of them - Stroman, Muhammad, Riley, and Marks - were "going to deal with" the Fairfax Village Crew. When they left Marks' house, it was after dark. Muhammad was carrying a rifle, Riley had a .38 caliber revolver, Marks had a pump shotgun (which belonged to Brown), and Stroman had a sawed-off shotgun. Muhammad told Stroman, who was driving, to head toward the Fairfax Village area, and eventually he instructed Stroman to stop the car outside a bank on Pennsylvania Avenue.
At that time Annabelle Littles was living in a house on Pennsylvania Avenue, S.E., with her two sons, Larnell, age nineteen, and Larell, age twelve. Her house was next door to a bank and was attached to another town house on the opposite side. At approximately 9:00 p.m. on August 20, Ms. Littles was at home with her two sons. She was inside the house, while her sons were outside in the front yard tossing a football with Larell's friend, Robert Johnson, Jr.
When Stroman stopped the car outside the bank, Muhammad got out and "ran up behind" a "tall guy and two other shorter guys." Muhammad pulled out his gun and began shooting. After Muhammad fired the first volley, "the tall boy fell [and] the other shorter guy was like crawling up toward the house." Muhammad then shot at "the shorter guy." Muhammad looked back at his three friends in the car and said, "Get out and kill him." Riley and Marks then jumped out and started shooting while Stroman waited in the car. The "other shorter guy" got away by "running on the side of the house behind the bushes."
After being shot, Larnell Littles, the "tall guy," was able to get up and run to the front door. His mother, hearing the shots, went to the door to see what was happening, and as she opened the front door, she saw Larnell standing there. Larnell came inside and said, "Ma, I been shot," then fell to the floor. Robert Johnson, Jr., the "shorter guy" who did not get shot, ran into the house as appellants drove away and told Ms. Littles that Larell was hurt and would not get up. She immediately went outside and found Larell lying on the ground.
The police arrived about a minute later. An ambulance took Larnell to District of Columbia General Hospital, where he was pronounced dead. Larell was transported by ambulance to Children's Hospital, where he was placed on a respirator, but he died the next day.
Larell had two bullet wounds, and Larnell had shotgun pellet wounds as well as bullet wounds. Crime scene search officers recovered .22 caliber shell casings and 12-gauge shotgun shells from the scene of the shooting. During the course of the ensuing investigation, the police recovered a .38 caliber revolver from Marks' home, a Ruger .22 caliber sawed-off semi-automatic rifle from an alley behind Muhammad's home, and a sawed-off 12-gauge shotgun from Riley's home, as well as the Mosberg 12-gauge shotgun which Brown had lent to Marks earlier that evening. Forensic evidence linked the shell casings and bullets recovered at the scene to two of these weapons. The .22 shell casings were determined to have been fired from the Ruger semi-automatic rifle, while the shotgun shells were found to have been fired from the Mosberg shotgun.
Later that evening, all three appellants, along with other members of the Rushtown Crew, were gathered at Marks' house. Marks and Muhammad were bragging about how they had shot "two boys" from Fairfax Village on Pennsylvania Avenue. Stroman said that he had been driving, and Riley said that his gun had jammed when he tried to shoot Larnell Littles. Muhammad told everyone that he had shot both victims. All three appellants stated that they shot at the Littles brothers because they thought they were members of the Fairfax Village Crew.*fn4
As the conversation continued, Brown told appellants that they should burn the car that they had used in order to destroy any fingerprint evidence. Brown then called his friend Robin Milbourne to ask for a ride. When Milbourne arrived, Brown went with her to get gasoline. After they returned from the gas station, they followed Riley and Muhammad, who were driving the blue Spectrum, to a deserted area of the District of Columbia, where Muhammad set the Spectrum on fire. After the car had been burned, Milbourne drove Brown, Riley, and Muhammad back to Marks' house in her car. During the ride back, Riley and Muhammad discussed their actions that night in detail.
D. Appellants' Arrest and Interrogation
Early in the morning of September 9, almost three weeks later, police officers arrested all three appellants for the murders of the Littles brothers. Officers from both Prince George's County, Maryland, and the District of Columbia Metropolitan Police Department were involved in the investigation, arrest, and questioning of appellants. All three appellants confessed to the murders.*fn5
After appellant Riley was arrested on September 9, he was taken to the Prince George's County police station and placed in an interview room by himself. At approximately 9:00 a.m., two Metropolitan Police detectives, Oliver Garvey and Donald Sauls, entered the room. Detective Garvey read Riley his rights from a Prince George's County rights waiver form and told Riley that he had been arrested for the murders of Larnell and Larell Littles. The detective instructed Riley to read the rights form himself and to answer the four questions printed on the form by checking either the "yes" or the "no" box next to each question. Riley checked the "no" box next to the question, "Do you want to make a statement at this time without a lawyer?" Detective Garvey asked him if he was "sure he did not want to talk to us," and he said "yes." Garvey then told Riley that he "couldn't talk to him any more since he did not want to make a statement without a lawyer present" and left the room. Detective Garvey gave the signed rights form to a Prince George's County detective and told him that Riley had "invoked." In his testimony Garvey explained that the term "invoked" in this instance meant that Riley did not want to make any statements, either with or without an attorney.
At about 10:45 a.m., Detective Dwight DeLoatch, of the Prince George's County Police, briefly entered the interview room to talk to Riley about the murders. At that point he had not spoken with Detective Garvey and did not know whether Riley had previously been interviewed or advised of his rights. DeLoatch told Riley that there were "two sides to every story and that [he] wanted to hear [Riley's] side of the story." Detective DeLoatch also mentioned that he was familiar with the Fairfax Village killings and that other individuals had already implicated Riley in those events. DeLoatch told Riley that he would be back later and walked out of the room.
Detective DeLoatch returned to the interview room about an hour later to escort Riley to the bathroom. On his next visit, at about 1:30 p.m., Detective DeLoatch found Riley more willing to talk; indeed, Riley kept "blurting out" that he did not have anything to do with the Littles murders. The detective replied that before he could talk to Riley and ask him questions, he had to "advise him of his rights" and that Riley had to sign a waiver form. DeLoatch then produced a Prince George's County waiver form, but Riley did not give any indication that he had previously seen such a form. Detective DeLoatch reviewed each question with Riley and told him to mark his response to the four questions. Riley again checked "no" in response to the question which asked if he would make a statement without a lawyer. Immediately after he checked "no," he told Detective DeLoatch without prompting "that he wanted to talk to [DeLoatch], but he didn't want to write anything down." DeLoatch responded that the question to which Riley was answering "no" was not concerned with written statements, but rather with whether Riley wished to talk. After hearing this, Riley then checked "yes" next to the question, scratched out his earlier "no" answer, and initialed the change.
During the ensuing conversation, Riley told Detective DeLoatch that he had no involvement in the Littles murders and that he did not even enter the District of Columbia on the day they were shot. DeLoatch responded that he knew Riley "wasn't telling the whole truth about the whole incident and that [he] knew that [Riley] was one of the ones that went to D.C." to shoot at the Fairfax Village Crew. Detective DeLoatch eventually left the room after an hour and a half of discussion, saying that he was going to let Riley "think about it" and that he would be back later to talk with him. Riley was then left alone in the interview room from about 3:00 p.m. until 6:40 p.m.
At 6:00 p.m., Sergeant Daniel Smart, also of the Prince George's County Police, received a telephone call from a man named Mark O'Brien, who said that he was Riley's attorney and that the police should "cease and desist any further efforts to interrogate Riley." Sergeant Smart did not relay this message to Detective DeLoatch because he did not know who Mr. O'Brien was, and he "was aware that Riley had waived his rights to an attorney and it [was his] understanding that an attorney can't call someone and say I am representing this individual without that person requesting an attorney." Riley was not told about O'Brien's telephone call.
At 6:40 p.m., Detective DeLoatch took Riley to be presented before a commissioner. During the processing, Riley asked if DeLoatch could arrange a meeting between Riley and Muhammad. DeLoatch replied that he could and set up such a meeting in another interview room at 7:30 p.m. In the course of their conversation, which lasted about five minutes, Muhammad told Riley to "cooperate," saying that "the police knew everything that [Muhammad] knew" because he (Muhammad) had confessed and told them where the weapons were. After learning that Muhammad had told the police "everything," Riley said he wanted to tell his side of the story to the police.
Detective DeLoatch then spoke with Riley in detail about the shootings, and Riley gave a written statement. In that statement, which was completed at 9:40 p.m., Riley expressly stated that he was aware of his rights, that he did not want an attorney present, and that he had never asked for an attorney.*fn6
Riley's testimony at the suppression hearing directly contradicted that of Detective DeLoatch. Riley said that he never "blurted" anything out concerning his innocence and that Detective DeLoatch always initiated the conversation. Riley also stated that when he checked "no" on the waiver form at 1:30 p.m., he meant that he "didn't want to talk without a lawyer."*fn7 He admitted that he understood his rights as a result of a previous arrest on August 22, just a few weeks earlier. Riley also denied that he had asked to speak with Muhammad,*fn8 but he did admit that the two of them had a conversation at the police station, in the course of which Muhammad told him that he had confessed.
The trial court ruled that Riley's statement was admissible because "Riley at no time requested the assistance of an attorney during the period of custodial interrogation," and because the Prince George's County rights waiver form was ambiguous. The court relied on Riley's express written statement that he responded "no" to the question about whether he had ever requested a lawyer. Though he had invoked his right to remain silent earlier in the day by responding "no" to the ambiguous Prince George's County waiver of rights form, the court found that he made a voluntary, knowing, and intelligent waiver of his Miranda rights*fn9 at 1:40 p.m.
2. Muhammad's Interrogation
Muhammad was arrested during the early morning hours of September 9. Detective Troy Harding of the Prince George's County Police took him to the Prince George's County police station at approximately 8:05 a.m. He was then left alone in the interview room until 9:05 a.m., when Detective Harding came in and read Muhammad his rights. Muhammad said he was willing to make a statement without a lawyer present at that time, and stated that he did not know anything about the murders. He was then left alone again while the police questioned others. According to Detective Harding, Muhammad did not appear to be distressed, did not complain, and was given a bathroom break.
At about 3:00 p.m., Detective Roger Irwin of the Prince George's County Police entered the interview room to speak with Muhammad. Detective Irwin, who had interviewed Marks earlier in the day, told Muhammad that other suspects had admitted involvement in the murders and had given up their weapons. When he asked Muhammad if he would also give up his weapon, Muhammad agreed to take the detective to the place where the weapon was. Muhammad then signed a consent-to-search form, and Detective Irwin took Muhammad to his mother's house to get his gun. On the way there, Detective Irwin asked Muhammad to confirm the waiver of his rights and had him sign another waiver of rights form. On the way back to the police station, Irwin took Muhammad to a "drive-through" fast-food restaurant to get him a hamburger, french fries, and a soft drink because Muhammad said he was hungry.
Irwin and Muhammad arrived back at the police station at approximately 4:30 p.m. Muhammad was then interviewed for the first time by District of Columbia officers, and in the course of those interviews he agreed to make a videotaped statement concerning his involvement in the murders. After the statement was taped, he was asked once again if he had been advised of his rights and if he would make a statement without a lawyer present. Muhammad confirmed that he had been advised of his rights and then gave a written statement in which he confessed again to the murders. Detective Irwin testified that Muhammad appeared "very calm, relieved," and "remorseful" as he was writing his statement. Muhammad never gave any indication that he was unhappy with his treatment.
The trial court, after hearing this evidence,*fn10 concluded that Muhammad "was advised of his rights, and in writing made voluntary, knowing, and intelligent waiver of those rights, and agreed voluntarily to make a number of statements about both this offense and [other] offenses in Maryland."
On the day that these appellants were arrested, each of them gave statements implicating himself and his two co-defendants in the shooting of the Littles brothers. All three appellants moved for severance and for suppression of their co-defendants' statements on Bruton grounds. See Bruton v. United States, 391 U.S. 123 (1968). The government argued that each confession could come in against the confessing appellant as a statement of a party opponent and that all the confessions could be admitted against co-defendants as statements against penal interest. The court ruled, however, that each confession would be admissible only against the particular individual who made it.
Following a lengthy discussion, the court and the parties agreed that the prosecutor would have each appellant's statement retyped, deleting any references to co-defendants and substituting the pronoun "I" wherever the pronoun "we" appeared in any of the statements. Appellants were permitted to raise additional concerns and were accommodated by the court when they suggested other changes or redactions. After all of the redactions were completed, the defense attorneys did not make any further objections, nor did they suggest any other changes.
At trial the statements, as redacted, were read to the jury. The prosecutor read the portions of each statement that corresponded to the detectives' questions, and the testifying detectives read the answers. Before the reading of each statement, the court instructed the jury to consider it only in determining the guilt or innocence of the confessing defendant and not as it ...