Appeal from the Superior Court of the District of Columbia. (DEL 1277-05) (Hon. Zoe Bush, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before FISHER and THOMPSON, Associate Judges, and SCHWELB, Senior Judge.
After a bench trial in the Superior Court Juvenile Division, the court found appellant D.W. responsible for one count of kidnaping, one count of attempted first-degree child sexual abuse, and two counts of second-degree child sexual abuse. In this appeal, D.W. contends that the court erred in denying his motion to suppress statements that he made to police. He also argues that (1) the petition was insufficiently specific as to the kidnaping charge; (2) merger applies with respect to the kidnaping and child sexual abuse adjudications that were based on a June 2005 incident; (3) the court erred in permitting an amendment to the petition as to one of the charges of second-degree child sexual abuse; and (4) the evidence was insufficient to support the court's finding that he committed attempted first-degree child sexual abuse. We affirm the judgment of the trial court.
The court reserved ruling on D.W.'s suppression motion until hearing all the evidence at trial. The evidence was as follows. The complainant, R.T., testified about two incidents involving D.W., whom she described as her godbrother and who lived in a house along with R.T., her mother, and her two brothers. The first incident occurred during the summer of 2003, when R.T. was nine years old and D.W. was fifteen. R.T. was alone in her family's living room when D.W. "came over and touched [her] . . . on [her] breast."
The second incident occurred on June 21, 2005, when R.T. was eleven. R.T. was in her mother's room getting a DVD when D.W. entered, grabbed her arm and then her wrist, pulled her, told her to go into her own bedroom, and when she refused, pushed her into her room, which was ten to fifteen feet away. D.W. then "pulled [R.T] on[to] the floor and got on top of [her]," took off his shoes and shirt, and "tried to unbutton [R.T's] . . . pants," scratching her stomach in the process. D.W. did not manage to get R.T.'s clothes off, but he "put his hands under [R.T.'s] butt" and "squeez[ed] [her] butt" while he was on top of her with his knees on the ground. R.T. testified that the encounter ended moments later when Terry Quales, a friend of R.T.'s mother, came upstairs. D.W. jumped off of R.T. and sat on the bed. Quales said "that is wrong, what you all are doing," and "it smells like sex in your room." R.T. then told Quales what had happened. She also called her parents, and when her father arrived at the house, she told him that "D. was touching [her]."
R.T.'s father, E.T., testified that he went to the house in response to R.T.'s call. He called D.W. downstairs and asked him whether he had "put his hands on" and "sexually harass[ed]" his daughter. D.W. said that he did. E.T. instructed R.T. to call the police.
Metropolitan Police Department ("MPD") Officer Edward Farris testified that, at about 5:00 p.m., he and his partner Officer Creasman, both armed and in uniform, responded to the report of a "criminal assault" (which the officer explained is a code phrase for "sexual assault"). When they arrived on the scene, Officer Farris found R.T. and D.W. both seated in the living room, with no one else apparently in the house. Farris "separated the female and the male" and said to D.W., "[L]et's go upstairs." Officer Creasman remained downstairs and, Officer Farris believed, questioned R.T. D.W. and Officer Farris went to an unoccupied upstairs bedroom and D.W. sat down on the bed. The door to the bedroom remained open. Standing at a distance of four to five feet from the bed, the officer asked D.W. in a conversational tone, "[W]hat's going on[?]" Farris explained that he was not aware of what had actually happened at that point,*fn1 and by his question, was "[j]ust [trying to] determine if [he] had anything at all, any event." D.W. replied, "I'm not going to lie, I got on top of her and you know, and then a guy came in and told me to get off of her." Farris testified that D.W. also said that "she said get off of me." Officer Farris did not inform D.W. that he was not under arrest or that he was free to leave. Asked whether D.W. actually was free to leave at that point, Officer Farris responded, "I probably would say no." After being upstairs for about a minute and a half, Officer Farris and D.W. walked back downstairs and Farris told D.W. to "have a seat on the steps." Farris then called a detective at the MPD's Youth Division and handcuffed D.W.
Detective Keith Bookard of the MPD Youth Division arrived at R.T.'s home at about 6:15 p.m. and was the officer who placed D.W. under arrest and escorted him from there to the Youth Division. The detective testified that, prior to interviewing D.W. at the Youth Division just before 9:00 p.m., he orally advised D.W. of his rights and also provided him with a PD 47 form, which explained those rights in written form. D.W. "acted like he understood his rights." In response to questions from the detective, D.W. denied having been drinking or smoking or having "had some sort of blackout."*fn2 D.W. signed the PD 47 form in several places to indicate that he read (or had read to him) his rights, understood his rights, and wished to answer questions without an attorney present. Thereafter (according to the transcript of the interview submitted to the court with the government's July 8, 2009 Rule 28 (k) letter), D.W. told the detective that he "touched the eleven-y[ea]r-old" "around the waist," that she "told me to get off and then . . . I touched her again and then a man came down," that he had shorts and socks on but had taken off his shirt," and that "I know I was wrong what I was doing." A video recording of Detective Bookard's interview with D.W. was played for the court.
After hearing all the testimony, the court denied D.W.'s motion to suppress the statements he made to Officer Farris and Detective Bookard. The court credited Officer Farris's testimony and found that the questioning of D.W. by Officer Farris was not custodial and was of a "general investigative nature and . . . not posed to elicit an incriminating response." The court also found that D.W.'s statement to Detective Bookard was not coerced. The court credited R.T.'s testimony and found that it was corroborated by the testimony of E.T. and Officer Farris that D.W. admitted "sexually harass[ing]" or getting on top of R.T., and by D.W.'s statement to Detective Bookard.
D.W. contends that the court should have suppressed his statements to Officer Farris because they were made without the officer having advised D.W. of his Miranda rights. He also argues that his statements during the interview with Detective Bookard should also have been suppressed because the purported waiver of his Miranda rights was not voluntary, an argument D.W. raises for the first time on appeal, and because police engaged in the type of two-step interrogation prohibited under the Supreme Court's ruling in Missouri v. Seibert, 542 U.S. 600 (2004).
The rights established under Miranda are triggered only when an individual is in custody and under interrogation. Miranda v. Arizona, 384 U.S. 436, 445, 478 (1966) (recognizing that safeguards are required in the case of "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statements without full warnings of constitutional rights "). In determining whether an individual is in custody, a necessary inquiry is whether, given the circumstances surrounding a police encounter, "a reasonable person [would] have felt he or she was not at liberty to terminate the [encounter] and leave." In re I.J., 906 A.2d 249, 256 (D.C. 2006) (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)) The inquiry is an objective one, i.e., "how a reasonable person in the suspect's situation would perceive [the] circumstances." Moore v. United States, 927 A.2d 1040, 1059 (D.C. 2007) (citation omitted); Morales v. United States, 866 A.2d 67, 73 (D.C. 2005) ([C]onsideration of . . . inherently subjective and individualized factors is impermissible."). However, "this inquiry, though necessary, is not sufficient." In re I.J., 906 A.2d at 256. "[T]he ultimate inquiry is simply whether there is a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest." California v. Beheler, 463 U.S. 1121, 1125 ...