Appeal from the Superior Court of the District of Columbia (F-4355-99) (Hon. Russell F. Canan, Trial Judge)
The opinion of the court was delivered by: Farrell, Associate Judge
Resubmitted July 11, 2007
Before FARRELL, RUIZ, and GLICKMAN, Associate Judges.
A jury found London Ford guilty of armed manslaughter, assault with a dangerous weapon (ADW), and related weapons offenses. The ADW conviction was based on evidence that on June 21, 1999, Ford pistol-whipped Richard Black after Black had mistakenly crashed into and damaged appellant's car, then failed to make good (entirely) on his promise to pay for the damage. The manslaughter conviction stemmed from evidence that, following the pistol-whipping, Ford armed himself and went to Black's "territory" with Jimmy Shelton to further demand payment (telling Shelton that if Black "didn't pay him his money . . . he [was] going to have to kill him"). There a shoot-out took place between Ford, Black, and others in the course of which Helen Foster-El, a neighborhood resident, was accidentally shot to death.
On appeal, the main questions presented are whether Ford was in custody when, at the police station, he made partly self-incriminating statements about the Foster-El shooting without having been advised of his Miranda rights;*fn1 and whether, assuming he was in custody, his videotaped statements made after he had been told of, and waived, those rights were admissible despite the earlier, unwarned interrogation. See Missouri v. Seibert, 542 U.S. 600 (2004); Oregon v. Elstad, 470 U.S. 298 (1985).*fn2
We do not decide the close question of whether Ford was in custody at the time of the interrogation; we hold instead that his postwarning statements were admissible under Elstad, and that the exception to the reach of that decision carved out by Seibert does not call for a different result. As Ford's prewarning statements were uncoerced, his postwarning statements were likewise made after voluntary waiver of his Miranda rights, and the trial judge properly found after remand that the police had not deliberately employed a two-step "question-first" strategy designed "to undermine the Miranda warning," Seibert, 542 U.S. at 622 (Kennedy, J., concurring), there is no basis on which to suppress Ford's postwarning statements.*fn3
Two days after the shooting of Ms. Foster-El, police officers went to Ford's home, having learned at roll-call that "he was a possible suspect [in] or a witness [to]" the shooting and was "wanted . . . for questioning." Ford's mother greeted them at the apartment and notified him by telephone that the police wanted to speak to him. Ford soon arrived home, where the officers patted him down and told him that, although he was not under arrest, he was wanted for questioning and "would need" to come to the Sixth District police station to speak with detectives. When he agreed to accompany them, he was handcuffed, placed in a police cruiser, and driven to the station. There officers removed his handcuffs and led him to an interview room, where they left him unrestrained for the time being with the door to the room open. Later, detectives entered and, over a period of three hours, interviewed him three separate times, the third consisting of the videotaped questioning through which the jury mainly learned of appellant's admissions.
At the remand hearing, see note 3, supra, the lone witness called by the government was Detective Monica Shields, who the judge later found had "testified credibly" at the hearing. Shields had not been among the officers who accompanied Ford to the police station. When she saw him seated in the interview room there on June 23, 1999, she had not been told why he was there but recognized him because she had questioned him a year earlier about the shooting of his cousin - though she also knew that he was believed to have "some type of involvement in the [Foster-El] shooting . . . as being there on the scene or as a witness." She did not believe that he was in custody when she saw him: the door to the interview room was open, no one else was present, she knew that the room was one used to interview witnesses and complainants as well as suspects, and customarily persons interviewed there who were in custody would be handcuffed and/or otherwise restrained and not left alone without a guard posted at the door. The judge credited Shields' testimony that, "[i]n her view, [Ford] was not under arrest or in custody at the time," a belief the judge found to be "reasonable."
Shields entered the room, reintroduced herself to Ford, and asked him if he had any further information about his cousin's still unsolved murder. She saw that he was crying, and when she asked him why, "he started talking from there . . . it was something in reference to the cousin's case and then he just went into talking about the [Foster-El] case." Shields "let him talk," which he did for about twenty minutes, during which he admitted that he had been present at the shooting scene with a gun and had "fir[ed] upon others who had fired on him." After he admitted these facts, Shields read him his rights from a PD-47 form and obtained his waiver of them. She also told him that he was under arrest. The judge found that this first interview, lasting about an hour, was divided more or less equally between discussion of the cousin's slaying and the Foster-El case.
During that interview another detective, Smith, had been in the room with Shields and Ford, although Smith had asked only one or two questions. At the second interview a short while later, Detective Crawford replaced Smith. Ford willingly repeated all of the statements he had made to Shields earlier: "[t]here was no difference," she testified. Ford admitted having "participated at the time the gunshots were fired," again essentially claiming self-defense. The detectives then asked him to make a third, videotaped statement, and he agreed to do so.
Shields denied that there was any "practice, whether it was an announced [police department] policy or not, . . . of the Sixth District homicide detectives back in 1999 and 2000" of "interrogat[ing persons in custody] first without warning them, get[ting] a confession, then giv[ing] Miranda warnings, and then get[ting] them to repeat the confession." The trial judge found that, because no evidence had been presented of such a practice or policy, and because Shields "believed and had reason to believe that Mr. Ford was not in custody when she saw him in the interview room" and began questioning him, any arguable error in the detective's failure to give Miranda warnings initially was not committed "deliberately or in bad faith." The record, in the judge's view, did not permit a finding "that this was . . . ...