Appeal from the Superior Court of the District of Columbia (F-8342-99) (Hon. Brook Hedge, Trial Judge).
The opinion of the court was delivered by: Terry, Senior Judge
Before RUIZ and REID, Associate Judges, and TERRY, Senior Judge.*fn1
Opinion for the court by Senior Judge TERRY.
Dissenting opinion by Associate Judge RUIZ at p. 32.
After a jury trial, appellant was convicted of second-degree murder while armed and various weapons offenses.*fn2 On appeal he contends that his rights under Miranda*fn3 and the Fifth and Sixth Amendments were violated, that his statement to the police was erroneously admitted into evidence in violation of the Mallory-McNabb rule,*fn4 and that certain conduct by the prosecutor prejudiced his case and requires reversal. We find all of appellant's arguments without merit and affirm the judgment.
At about 4:30 a.m. on July 9, 1999, Michael Day was talking with another man known as "John-John"*fn5 at the corner of Third and L Streets, S.E. Robin Holliday, who knew both men, walked over to them and exchanged a few words while taking out her trash.*fn6 Two unidentified women then approached Mr. Day asking for drugs. After they gave him some money, Mr. Day began walking toward a green dumpster located nearby while Ms. Holliday and the two women remained standing at the corner. John-John also walked away. Moments later, Ms. Holliday heard four gunshots. After hesitating for a minute or two, she started to walk in the direction of the dumpster, and as she drew nearer, she heard someone crying for help. She headed toward the source of that cry and found Mr. Day, partially clothed and bleeding, lying on the steps in front of a house at 323 K Street, S.E. He had been shot and had stumbled onto a neighbor's front porch, where Ms. Holliday found him. She immediately called out for assistance.
After staying with Mr. Day for a few minutes, Ms. Holliday decided to look for someone from his family, who lived in the apartment beneath hers. As she headed back to her apartment building, Ms. Holliday was passed by a heavy-set man in a white T-shirt and jeans who was "running at a little pace" and appeared to be hiding something underneath his shirt. Just as he went past her, the man exclaimed, "Somebody better help that boy." She testified that this man looked like appellant, whom she had known for about three or four years. Ms. Holliday and Mr. Day's uncle soon returned to the wounded Mr. Day, and there they waited for the police and an ambulance.*fn7
After the police arrived, Detective Steven Slaughter began to interview Ms. Holliday. As they were talking, appellant walked by, wearing the same clothing that Ms. Holliday had seen a few minutes earlier, and asked her, "Is the [man] dead yet?" About ten minutes later, appellant appeared again and asked if "Mike" was dead. On this last occasion, Ms. Holliday noticed that appellant had changed his clothes. Detective Slaughter asked appellant whether he wanted to make a statement concerning the shooting, but appellant answered, "Hell no," and walked away.*fn8 The police then drove Ms. Holliday to the First District police station, where she gave a written statement.
Another neighborhood resident, Joseph Matthews, was on his way home in the early morning hours of July 9 when he saw Mr. Day and a group of other persons gambling on the sidewalk across the street from his apartment. After entering his home and preparing for bed, Mr. Matthews heard an argument outside. He looked out the window and saw Mr. Day, appellant, and John-John standing on the corner. Appellant had a pistol in his hand and was arguing with Mr. Day about money. As the argument continued, Mr. Day took off his shirt and was in the process of removing his trousers when Mr. Matthews heard a gunshot, which he said was fired after Mr. Day had lunged at appellant and been pushed backwards. Mr. Matthews ducked and then heard about four more shots. As he peered out his window, he saw appellant and John-John running away, while Mr. Day stumbled onto a nearby porch. When Mr. Matthews saw appellant in the neighborhood the next day, appellant said that he "didn't mean to shoot him, and that's it," and that he was going to turn himself in to the police.*fn9
Sylvester Summers, who lived about two blocks from the scene of the shooting, echoed the testimony of Mr. Matthews. He said that he saw two men "tussling, wrestling" in the early morning hours of July 9 as he was walking home after a night out. At first Mr. Summers paid little attention to the two men, but after hearing a gunshot, he looked at the men and saw that "the taller guy" had a gun in his hand. Uncertain about what to do next, Mr. Summers continued toward his home, but when he heard another shot, he ran into a neighbor's yard and hid for several minutes. Upon re-emerging, Mr. Summers saw Mr. Day leaning against a fence, trying to hold himself up. Although Summers did not know appellant by name on the day of the shooting, he positively identified him at trial as the gunman.
After interviewing several eyewitnesses, the police obtained a warrant for appellant's arrest on November 8, almost four months after the shooting. On November 12 Detective Don Sauls picked up appellant, who was in custody on an unrelated charge, and brought him to the First District police station for questioning. When appellant was told he had been taken into custody in connection with the death of Michael Day, he responded that he was in jail on the date of the murder.*fn10 After being advised of and waiving his Miranda rights, appellant spoke with several detectives but offered little information. However, after being told by Detective Robert Saunders that witnesses had reported that he acted in self-defense on the night in question,*fn11 he replied, "You guys don't have any witnesses. There was nobody back there but me and Michael."
Only after appellant requested and was granted permission to speak with Detective Michael Fulton did he give a more detailed version of what happened.*fn12
During his conversation with Detective Fulton, appellant described a confrontation he had had with Mr. Day on July 8 about Day's alleged sale of drugs to one of appellant's drug customers. Later that evening, appellant claimed, Mr. Day hit him with a gun without any reason. A struggle then ensued, in the course of which the gun discharged several times. Appellant also told the detective that during the struggle he tried to stab Mr. Day with a knife. When asked if he had attempted to rob Mr. Day, appellant said he "didn't have time to take his money." He added that there were no other witnesses and that someone else must have picked up the gun, which was never recovered.
In reviewing the denial of a motion to suppress evidence, this court accepts the trial court's factual findings unless they are clearly erroneous or not supported by the record. Ball v. United States, 803 A.2d 971, 974 (D.C. 2002); Powell v. United States, 649 A.2d 1082, 1084 (D.C. 1994); see D.C. Code § 17-305 (a) (2001). Moreover, the facts and all reasonable inferences therefrom must be viewed in the light most favorable to sustaining the trial court's ruling. See Peay v. United States, 597 A.2d 1318, 1320 (D.C. 1991) (en banc). "Essentially," this court's role in reviewing the denial of a motion to suppress "is to ensure that the trial court had a substantial basis for concluding that no constitutional violation occurred." Brown v. United States, 590 A.2d 1008, 1020 (D.C. 1991) (citation omitted); accord, e,g., Thompson v. United States, 745 A.2d 308, 312 (D.C. 2000).
In his motion to suppress, appellant challenged the admissibility of the statements he made to the police on several grounds, and on appeal he presents the same arguments. First, he contends that his Fifth and Sixth Amendment rights to counsel were asserted in open court, but were later disregarded at the station house when detectives questioned him without the presence of his attorney. Second, appellant asserts that he never knowingly or intelligently waived his Miranda rights before being questioned by the police. Finally, he maintains that he was not presented in court until after the permissible time limit under the Mallory and McNabb line of cases and that any statements made during that period of unnecessary delay should therefore be held inadmissible. After an evidentiary hearing, the trial court denied appellant's motion to suppress. We find no error in that denial.
A. Sixth Amendment Right to Counsel
Appellant argues, first, that because his counsel at an unrelated probation revocation hearing asserted his rights under the Fifth and Sixth Amendments when 10 the judge learned of appellant's outstanding warrant in this case, his ...