Appeal from the Superior Court of the District of Columbia (F-156-01) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Kramer, Associate Judge
Before WASHINGTON, Chief Judge, and GLICKMAN and KRAMER, Associate Judges.
The appellant, Kevin Edwards, was convicted following a jury trial of First-Degree Premeditated Murder While Armed, Possession of a Firearm During a Crime of Violence, and Carrying a Pistol Without a License. He was sentenced to concurrent terms of thirty-nine, twelve, and five years, respectively. Edwards now argues that the statements he made to the police after they read him his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), should have been suppressed under the standard announced in Missouri v. Seibert, 542 U.S. 600 (2004), decided after his conviction but while this appeal was pending.*fn1 While conceding, in light of Seibert, that the police acted inappropriately in failing to Mirandize Edwards before beginning their questioning, the government argues that the admission of Edwards' initial account of the murder was harmless and that his ultimate confession was properly admitted. We are compelled to "sound the warning" to police in this jurisdiction concerning the "deliberate failure of the police to inform a criminal suspect promptly of his rights under Miranda." Hill v. United States, 858 A.2d 435, 437-38 (D.C. 2004) (quoting United States v. Brown, 737 A.2d 1016, 1021 n.8 (D.C. 1999) (citations omitted)). We reverse and remand the case for a new trial.
Deon McCorkle was shot and killed sometime after 5:00 p.m. on January 7, 2001. A witness told Detective Brett Smith that he saw a man get into a car and drive away after the shooting. The witness described the car to Detective Smith, who broadcast a lookout for the vehicle. A short time later, the police stopped a car matching the transmitted description and, after a brief foot chase, apprehended Edwards. Before Edwards was apprehended, Officer Wayne David saw him remove something from his waistband and toss it to the ground. Officer David retrieved the object, a black semi-automatic handgun. From the time he was apprehended until his interrogation began, Edwards made a number of unprompted statements, such as "F**k a homicide beef," and "Murder was the charge that they gave me," apparently lyrics from a popular rap song.
Edwards waited in an interrogation room for approximately two hours while Detective Smith conducted his investigation at the murder scene. At around 8:00 p.m., Detective Smith arrived at the station and "formulated a game plan" to interview Edwards. He entered the interrogation room, introduced himself, and explained to Edwards that he was familiar with the area of the shooting and with the "crews" that were there. Detective Smith testified he was "letting him know that I was a well-educated police officer and detective, that I was familiar with the streets, what was going on, who was beefing with who, trying to make him feel at ease, that he wasn't dealing with someone ignorant to his plight." Detective Smith also stated, "I wanted [Edwards] to understand that . . . I could relate to him, and that a bunch of BS wasn't going to fly with me . . . . I wanted to give him the impression that . . . lies weren't going to work [and] that I had a clear picture of what was going on."
After introducing himself, Detective Smith asked Edwards "to tell [him] what happened, why [was Edwards t]here, you know, what's all this about?" He also asked Edwards "how he became involved in all of this tonight." Detective Smith acknowledged at trial that Edwards was in custody at that time and that he knew that his questioning could elicit an incriminating answer, but maintained that he "just wanted to hear what he was going to offer as an explanation."
Edwards responded that he had approached McCorkle to talk with him about a "beef" he was having with one of McCorkle's associates. While they were talking, a masked man approached, shot McCorkle, threw the gun in Edwards' direction, and ran off. Edwards then told Detective Smith that he picked the gun up, got into his car, and sped away. After Edwards gave this statement, at 8:36 p.m., Detective Smith advised Edwards of his Miranda rights "because he had incriminated himself with the weapon" and "because what he just told me was obviously, to me, a complete and utter lie." Edwards stated that he understood his rights and initialed a PD-47 "Advice of Rights" card.
Detective Smith then went "back through [Edwards'] story" and told Edwards that he did not believe it. Detective Smith asked Edwards "some specific questions about things that didn't make sense to [him]," and Edwards repeated the same account. After about fifteen more minutes of interrogation, Detective Smith "stepped out" of the interview room. Another police officer, Detective Anthony Patterson, arrived and told Detective Smith that he knew Edwards from being a "beat cop" in Edwards' neighborhood and asked if he could speak with him. After another fifteen to twenty-minute session, Detective Patterson came out of the interrogation room and informed Detective Smith that Edwards "basically gave it up."
Edwards then repeated his new story to Detective Smith. He stated that he had walked up to McCorkle to discuss the "beef" when he saw that McCorkle had his hands in his pockets or was reaching for his pockets. Although he did not see a weapon, Edwards told Detective Smith that he was afraid for his life because he had known McCorkle to own guns and thought McCorkle might be armed. Edwards pulled out his gun and shot McCorkle several times. Detective Smith subsequently videotaped Edwards' statement.
Before trial, Edwards moved to suppress his statements, arguing that their admission would violate his Fifth Amendment right against self-incrimination. See U.S. CONST. AMEND. V ("No person . . . shall be compelled in any criminal case to be a witness against himself . . . ."). The trial court denied the motion. The court found "there was some police strategy at play in [Detective Smith's] mind" when he initially withheld Edwards' Miranda warnings and noted that he "[didn't] think they should have done it this way." Despite his misgivings, the trial judge found that there had not been any coercion. Ultimately, the court concluded that Edwards' statements were voluntary and admissible.
At trial, the government called multiple witnesses who gave somewhat conflicting accounts of the shooting. The one eyewitness who actually saw the shots being fired, a fourteen-year-old boy, testified that McCorkle's hands were extended in front of him when the assailant pulled out his gun. He further stated that McCorkle was gesturing with his hand while he and the shooter were talking and that, in the thirty seconds he watched the discussion, he could see the victim's left hand for about five seconds and his right hand for about twenty seconds. The prosecution also provided ballistics evidence linking the gun recovered during Edwards' flight to the bullets that killed the victim, but it did not introduce any fingerprint evidence.*fn2
In closing argument, the prosecutor discussed Edwards' statements to Detectives Smith and Patterson. He contended that the statements were given after a voluntary Miranda waiver and used them to argue that Edwards had a motive for murder and that his self-defense story was false.
Two seminal Fifth Amendment cases, Oregon v. Elstad, 470 U.S. 298 (1985), and Missouri v. Seibert, 542 U.S. 600 (2004), provide the legal framework that we must apply to Edwards' claim that his statements should have been suppressed. In Elstad, which the government relied on at the pre-trial motions hearing in arguing that Edwards' post-Miranda statements were admissible,*fn3 police officers went to the home of an eighteen-year-old burglary suspect with a warrant for his arrest. Elstad, supra, 470 U.S. at 300. As one of the officers escorted his mother into the kitchen to explain the situation, the other officer remained with the suspect. Id. The officer asked Elstad if he knew why they were there and he responded that he did not. Id. at 301. The officer then asked Elstad if he knew a person named Gross, to which Elstad responded that he did and that he had heard that there had been a robbery at the Gross house. Id. The officer told Elstad that he believed that Elstad had been involved in the robbery and Elstad replied, "Yes, I was there." Id. After being transported to the sheriff's headquarters, the police read Elstad his Miranda rights, which Elstad waived before providing the police with a full confession. Id. at 301-02.
Elstad moved to suppress his statement and confession because his response to the questioning at his house had "let the cat out of the bag" and the subsequent confession was a "fruit of the poisonous tree." Id. at 302. The Supreme Court rejected these arguments, deciding that it would be an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.
Id. at 309. The Court held that "a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned ...