Appeals from the Superior Court of the District of Columbia (F-1104-97) (Hon. Frederick H. Weisberg, Trial Judge).
The opinion of the court was delivered by: Ruiz, Associate Judge
Before WASHINGTON, Chief Judge,*fn1 RUIZ,Associate Judge, and KING, Senior Judge.
Appellant was convicted of murdering a member of the Metropolitan Police Department. On appeal, he contends that the statute providing for mandatory life imprisonment without the possibility of parole for the murder of a law enforcement officer, D.C. Code § 22-2406 (1995 Supp.), unconstitutionally violates the guarantee of equal protection under the laws; that the trial court should have suppressed the confession which was introduced at trial because he did not validly waive his Miranda*fn2 rights; and that the trial court improperly coerced a deadlocked jury to render a verdict. He also appeals the denial of his subsequent motion for a new trial under Criminal Rule 33, arguing that the trial court erred both in finding that it lacked jurisdiction over the motion and in denying the motion on the merits. We affirm in both appeals.
Shortly after 3:00 a.m. on February 5, 1997, Officer Brian Gibson -- a decorated officer of the Metropolitan Police Department (MPD) who was on routine patrol in full uniform and in a marked police cruiser -- was murdered by an assailant who shot him four times at point-blank range while his patrol car was stopped at a red light at the intersection of Georgia and Missouri Avenues, Northwest.
According to testimony presented at trial, earlier that evening, appellant met with several friends who were celebrating the birthday of one of their group, drinking champagne and Remy Martin cognac. One of the group, Kevin Curtis, had seen appellant with a .45-caliber automatic handgun earlier that evening.*fn3 The group of friends later made their way to the Ibex nightclub, which had a local reputation for often hosting loud and violent parties,*fn4 where appellant continued to drink champagne. According to the testimony of several eyewitnesses, appellant and others got into an altercation with another group at the club. By all accounts, appellant was "[w]ild," and "jumping around." Before the two groups came to blows, an off-duty officer in MPD uniform,*fn5 intervened and momentarily was able to keep the situation from escalating into violence. However, within two minutes, appellant was again "trying to get at this other group," and "acting out of control, real wild." Thus, Ibex's employees decided to eject appellant from the club, and he was led by a uniformed police officer to a third-floor exit, and, on his own, appellant then went down the external steps to the street below.
Juan Wilson, a member of the group that had gone to the Ibex club and a friend of appellant, testified that he went outside to check on appellant after he had been ejected from the nightclub. He found appellant armed with a hand gun, running north on Georgia Avenue. Wilson testified that he went to a public telephone to call appellant's sister and, looking back, saw appellant kneeling between two parked cars "getting the gun together." As Wilson turned toward the phone to make the call, he heard gunshots, and ran away. Wilson was heavily impeached at trial: he conceded on cross-examination that he had previously told people that appellant had not been the shooter, and a witness testified that Wilson had told her that appellant was not the shooter, but he (Wilson) was blaming appellant for the murder only "because [the police] was [sic] telling him that [appellant] said that he did it." Another witness testified that he had heard Wilson acknowledge that "they know that he did it and someone is going to testify against him and he was waiting for somebody to pick him up."
Additionally, Wilson's former employer was called as a defense witness to show that Wilson had lied about whether he had been employed at the time of the shooting.
When shots rang out minutes after appellant was kicked out of the club, police in the vicinity immediately responded. They found Officer Gibson dying. Three witnesses -- Steven Bly, Aaron Bly and Sharwana Williams -- saw the shooting. They looked back and saw someone at the driver's side of a police car. Although they could not see the shooter's face, Williams and Aaron Bly described him as a man wearing a dark shirt or black jacket with white stripes on the sleeves. All three witnesses saw this man walk north on Georgia Avenue after the shooting. An autopsy revealed that Officer Gibson had been shot four times from a range of two to twenty inches, that the first bullet had entered his left shoulder, and that the remaining three shots were to his head. The bullets recovered were .45-caliber.
The parties stipulated at trial that the tape of the police radio dispatches showed that an officer reported hearing gunshots at 3:02 in the morning and, seventy-two seconds later, appellant was observed running in the 5900 block of Georgia Avenue, north of the scene of Officer Gibson's murder. Officer Kenneth Hillman testified that he saw appellant heading north on Georgia Avenue in the minutes after the shots rang out, first walking briskly and then running northbound with his hands near his waist. Officer Hillman and another officer, Sergeant Linda Nischan, identified themselves as officers and called for appellant to stop as he came out of a "cut" next to an auto dealership and body shop. The officers then observed as appellant reached into his waistband, removed a black handgun, and discarded the gun under a parked car. Ballistics testing later proved that this .45-caliber handgun was the weapon which fired the fatal shots. At the time of his arrest, appellant was wearing a black shirt with a white reflective stripe on each sleeve.
Upon being arrested, appellant immediately claimed that it was his friend, Juan Wilson, who had shot Officer Gibson, and that Wilson had given him the gun "and told him to get rid of it." Appellant was driven to the police station where he was placed in an interview room. Later that morning, his clothes were seized and his hair combed for evidence. Searches of both his hair and clothing revealed the presence of twenty-two small shards of glass, of which four, the government's expert witness testified, were consistent, though could not be conclusively matched, with the glass of the shattered driver's side window of Officer Gibson's patrol car.*fn6 At around 10:00 a.m., appellant's hands were tested for gunpowder residue, and the results of this test were negative.*fn7 Two of the five suspects arrested were also tested for gunpowder residue that morning, and those tests revealed the presence of residue on the left hand of Terrill Turner who had been at the Ibex club that night and was wearing a red jacket with reflective stripes on the sleeves.
Since being brought to the police station around 4:00 a.m., appellant had been left alone in an interview room, handcuffed to the floor, except for the search of evidence from his hair, clothes and hands. Several times, he was offered a drink or use of the restroom, which he refused. Shortly before 11:00 that morning, the police approached him for the purposes of questioning, and gave him full Miranda warnings beforehand. Specifically, Detective Robert Parker provided appellant with a standard PD-47 card which lists Fifth Amendment rights and, on the reverse side, has printed questions which ask whether appellant had read and understood the warnings, and is willing to answer questions without the presence of an attorney. Appellant wrote "yes" in response to each question and initialed each response. He listed 10:47 a.m. as the time he executed the PD-47 card.
Through the first twenty or thirty minutes of the interview, appellant continued to blame Wilson for the murder, stating that he saw Wilson fire the shots from the corner of Georgia and Missouri Avenues, and that Wilson had then given him the murder weapon and asked him to get rid of it. The police responded with incredulity, telling appellant that they knew he was lying because they had discovered shell casings next to the driver's side window of the car. One officer raised his voice, and called appellant "a liar." Detective Parker testified that about a half-hour into the interview, appellant said "I haven't told you what happened so far, I will tell you what happened and it's different from what I told you before, but I want to call my grandmother first." Parker agreed to allow appellant to place a call to his grandmother, but only after he "told them the truth." Appellant confessed to firing "three or four shots" into Officer Gibson's patrol car from the street corner, but disclaimed knowing that his target was a police officer. The confession was not videotaped or otherwise recorded. Detective Parker made a written record six hours later; Detective Charles Porter, who assisted in appellant's interview, submitted his written summary the following day. Two other officers, Detectives Anthony Brigadini and Mitchell Credle, testified that they overheard appellant's statements to the police and generally corroborated Detective Parker's and Porter's reports. They testified from memory as neither one had made a written record of what they heard appellant say at the police station.*fn8
The trial lasted several weeks. After a day and a half of deliberation, the jury sent a note to the judge which read, "we are hopelessly deadlocked!!" Conferring with counsel, the trial judge proposed to instruct the jury that because they had been deliberating for only a short period of time, they should "deliberate further in this and continue your best efforts." Defense counsel requested that the jury also be instructed to deliberate "without doing violence to their own personal convictions about the case." The court rejected the request, concluding that because the proposed instruction was not an "anti-deadlock" instruction, such language was unnecessary. The jury was brought into the courtroom and the judge addressed them:
Ladies and gentlemen, good afternoon. I have received your note and I have discussed it with the parties, and I don't want you to think that we are ignoring it.
However, as I started to think about what I wanted to tell you in response to it, I took a look at the clock and realized it was already ten after four, and you have been here most of the day today, and I think the better way to respond is to simply recess your deliberations at this time and ask you to come back tomorrow morning and start fresh. . . .
. . . . . . . [P]lease keep in mind also one of the things I told you on Friday when you recessed, and that is that . . . nothing is final, nothing is fixed.
No opinion that you have expressed is a final one. You should always at all times keep an open mind about the case with a view to listening to the others and expressing your own point of view ...