Appeal from the Superior Court of the District of Columbia, (FEL2605-05), (Hon. Herbert B. Dixon, Jr., Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, GLICKMAN and THOMPSON, Associate Judges.
Concurring opinion by Associate Judge THOMPSON, with whom Associate Judge REID joins at page 20.
Dissenting opinion by Associate Judge GLICKMAN at page 29.
The government concedes that during the first phase of police interrogation of appellant, James A. Dorsey, "the police violated the prophylactic rule articulated in Miranda v. Arizona, 384 U.S. 436 (1966), and Edwards v. Arizona, 451 U.S. 477 (1981)" by not stopping the interrogation when Mr. Dorsey invoked his right to counsel after having initially waived his Miranda rights. This case requires us to determine, primarily, (1) whether Mr. Dorsey initiated conversation with the police that resulted in his confession during the second phase of the interrogation; and (2) whether the trial court properly determined that, before the second phase of interrogation, he knowingly and intelligently, and voluntarily waived his rights under Edwards.*fn1 We affirm the judgment of the trial court.
The record shows that Mr. Dorsey's conviction was based on his May 3, 2005 assault and robbery of Vassiliki Fotopoulous, an 83-year-old limited English-speaking street vendor, who sold merchandise outside a subway station located in the Northwest quadrant of the District of Columbia. As Ms. Fotopoulous proceeded to her nearby apartment house while pushing a cart containing her vending items, Mr. Dorsey struck her and she fell to the ground. When she would not give him her money, Mr. Dorsey kicked her several times, causing "excruciating pain," and he removed about $300 from her person. Ms. Fotopoulous did not recall all of the details of the assault but remembered both seeing her children at the hospital and being in a lot of pain, especially "excruciating pain" in her leg. Theodora Kunec, Ms. Fotopoulous's daughter, testified that she saw her mother in the emergency room of the hospital on May 3, 2005. Her mother's "eyes were swollen and... blue"; her face was swollen; "the whole body had blood everywhere" - nose, mouth; "her head had bumps all over"; "she was moaning, and she was in horrible pain." Four persons identified Mr. Dorsey as the perpetrator after viewing a surveillance tape depicting the attack.*fn2
After Mr. Dorsey's arrest on another charge on May 7, 2005, he waived his Miranda rights at about 8:30 p.m., and the police interrogated him about the attack and robbery of Ms. Fotopoulous. Parenthetically, the record shows that Mr. Dorsey is a high school graduate, worked at a liquor store, had ten prior convictions, and has been arrested on more than thirty occasions. Mr. Dorsey spent approximately twelve or thirteen hours in the interview or interrogation room - from Saturday evening, May 7, until about 8:30 or 9:00 a.m. the next morning. He sat alone for several hours of that time.*fn3 During this first phase of the police interview, several members of the Metropolitan Police Department ("MPD") interrogated Mr. Dorsey. They ignored his repeated efforts to terminate the interrogation, specifically his statements that he wanted to tell his story in court; he wished to go to his cell so he could sleep; he needed to talk to a lawyer; he was waiting to be charged; and he did not want to talk. Despite the officers' persistence in posing questions to him and their rigorous interrogation using tactics designed to persuade a suspect to talk and to confess, Mr. Dorsey never made a statement that implicated himself in the crimes committed against Ms. Fotopoulous. The officers took him to a cell around 8:30 a.m. on May 8.
According to the testimony of Detective Michael Ross, an apparently unidentified officer heard Mr. Dorsey banging on his cell in the afternoon around 3:30 or 4:30 p.m. "At some point, a detective overheard [Mr. Dorsey] say that he wanted to speak to Detective Ross, that he wanted to confess." Mr. Dorsey was returned to an interview or interrogation room. As he sat there, MPD Officer Joseph Crespo, whom he knew, passed by. According to Officer Crespo's testimony, Mr. Dorsey said: "Crespo, come here, I want to talk to you about what I did. I did it." This encounter between Officer Crespo and Mr. Dorsey was not videotaped. Officer Crespo asserted that he was not aware of how long Mr. Dorsey had been interrogated before he arrived for work on May 8, 2005. Nor did he know whether Mr. Dorsey "had waived or invoked" his right to counsel.
Nevertheless, Officer Crespo and Sergeant James T. Young, who was scheduled to question Mr. Dorsey that afternoon, interviewed Mr. Dorsey together. They did not reiterate the Miranda warnings. The DVD of the second phase of the interrogation shows Mr. Dorsey handcuffed to a chair and Officers Crespo and Young seated at the table with him. As the recording began, Officer Crespo told Mr. Dorsey:
As I walked by just now you called out to me. You obviously said you wanted to talk about this. O.K.? We are going to want for you to be specific. We want you to tell us the story first. Tell us exactly what happened. Then we have some questions for you. So tell us what happened.
When Officer Crespo declared, "[y]ou obviously said you wanted to talk about this," Mr. Dorsey did not respond either verbally or by body movement to signify yes or no; he simply sat there.
Once Officer Crespo finished his remarks, Mr. Dorsey began to talk about the incident, without hesitation. About a week before the attack on Ms. Fotopoulous, Mr. Dorsey had asked her to change a $20 bill but she told him to get away from her vending stand. On the day of the attack, a man, who apparently had witnessed the earlier exchange, asked Mr. Dorsey why he had let Ms. Fotopoulous treat him that way. Mr. Dorsey then approached Ms. Fotopoulous and asked her for money. She rebuffed him. He walked down the street, waited for her, and asked for money when she appeared. When she failed to hand over her money, he shoved her to the ground, and kicked her before taking her money. Mr. Dorsey demonstrated how he assaulted and took money from Ms. Fotopoulous. Officer Crespo pressed for more details, saying "you've admitted it; it's not going to get worse." Mr. Dorsey provided more details and he stated several times that he did not know the woman he assaulted and robbed was "that old." Eventually, the officers ceased their questioning so that Mr. Dorsey could eat and smoke a cigarette.
After more questions following Mr. Dorsey's meal, Officer Crespo commented that he has known Mr. Dorsey "for a long time" and "appreciate[d] Mr. Dorsey's talking to [him and Officer Young]." Just before his bathroom break, Mr. Dorsey said he did not "want a lot of charges," and that he would "take the robbery" charge. Officer Crespo responded, in part: "Unfortunately, I'm not in charge of what happens to you. My job is to go get you.... That's not my job to determine what happens to you." Mr. Dorsey reiterated that he did not "need a whole lot of charges" and that he would "take the robbery plea."
Mr. Dorsey challenges the trial court's admission of his videotaped confession into evidence; he claims that despite his explicit request to speak to a lawyer, the government failed to scrupulously honor that request. Instead, he maintains, the police continued to badger him and tried to extract a confession during the first day and night of questioning. He contends that his request to speak with detectives on the second day cannot be regarded as an "initiation" under Edwards, because "a suspect cannot be said to have validly 'initiated' contact with police when he asks to speak with them after they have violated Edwards by badgering him to confess."
The government "agree[s] that the police violated the prophylactic rule of Miranda..., and Edwards..., when, in the first phase of their interrogation, they questioned [Mr. Dorsey] after he asserted his rights." But the government insists that Mr. Dorsey's "decision to renew the conversation [with the police] and confess did not result from any police coercion" since "[t]he police had not engaged in oppressive conduct overbearing [Mr. Dorsey's] will." In addition, the government contends, "any improper pressure had dissipated by the time of the second interview," and Mr. Dorsey confessed "because he felt remorse and wanted to 'get it off [his] chest.'"
Contrary to the government's argument, Mr. Dorsey asserts that "the detectives' constitutionally improper conduct 'played the dominant role' in eliciting [his] confession," and that the real reason he decided to speak with the detectives the following day was not remorse. Rather, "he decided to talk because [Detective] Crespo promised him leniency - an incentive that aligned with the advice that he should plead guilty to ensure that it would be a 'straight robbery' and the threat that refusing to talk would result in greater charges."
The trial court determined that "there [was] a significant break in the questioning" when Mr. Dorsey was taken to "a different location" (a cell) so that he could sleep. The court credited the testimony of Officers Ross and Crespo about Mr. Dorsey's initiation of contact with the police after he had slept, and discredited the assertions of Mr. Dorsey that he did not ask to talk to the police on the afternoon of May 8, and that he confessed because Officer Crespo said he would help him out. The judge specifically found Officer Crespo to be a "very credible witness," and noted that Mr. Dorsey did not say that Officer Crespo incorrectly stated that he, Mr. Dorsey, wanted to talk. The court reasoned that Mr. Dorsey decided to confess because "he wanted to get it off his chest and he didn't know that lady was so old." Thus, the trial court did not "find that there is any suggestion or any evidence that [Mr. Dorsey] didn't initiate the conversation after he went to the cell and went to sleep." The court observed that Mr. Dorsey had "knowledge of the [c]riminal justice system" and "knew about a waiver" of his rights due to his past arrests and convictions. The court saw no "hint of coercion, force, intimidation, psychological whipping or anything else in viewing [the] videotape [of the confession]." Hence, the trial court concluded that Mr. Dorsey "initiated the contact and he voluntarily and knowingly and intelligently waived his right to remain silent and have a lawyer present because his testimony supported that as well as his demeanor."
This appeal requires us to decide whether Mr. Dorsey initiated conversation with the police on the afternoon of May 8 and whether, having invoked his right to counsel during the first phase of police interrogation, he knowingly and intelligently waived his right to counsel during the second phase of police questioning. "The trial court's underlying factual findings... are reviewed under the 'clearly erroneous' standard, and they will only be set aside if they lack substantial support in the record." Morris v. United States, 728 A.2d 1210, 1215 (D.C. 1999) (citations omitted). However, we review the trial court's legal conclusions de novo. See Robinson v. United States, 928 A.2d 717, 725 (D.C. 2007).
In reviewing the initiation and waiver issues, we are guided by legal principles distilled from Edwards, supra, and other cases. Edwards held, in part, that a suspect who has "expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the [suspect] himself initiates further communication, exchanges, or conversations with the police." 451 U.S. at 484-85; see also Jennings v. United States, 989 A.2d 1106, 1113 (D.C. 2010). The "fundamental purpose [of the Edwards/Miranda prophylactic rule] is to [p]reserv[e] the integrity of an accused's choice to communicate with police only through counsel, by prevent[ing] police from badgering a defendant into waiving his previously asserted Miranda rights."*fn4 Maryland v. Shatzer, 130 S.Ct. 1213, 1220 (2010) (internal quotation marks and citations omitted; first alteration added); see also Morris, 728 A.2d at 1226 (Terry, J., concurring in part and dissenting in part). If the suspect "initiate[s] the meeting [with the police], nothing in the Fifth... Amendment would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at trial." Edwards, 451 U.S.at 485.
Oregon v. Bradshaw, 462 U.S. 1039 (1983), held that a court must apply a two-part test to determine whether a suspect's responses to police questions after he has invoked his right to counsel, nevertheless may be admitted into evidence. First, the court must determine whether the suspect initiated the subsequent conversation with the police. The defendant initiates the conversation where his words "evince a willingness and a desire for a generalized discussion about the investigation." Bradshaw, 462 U.S. at 1045-46. Second, because initiation does not "amount to a waiver of a previously invoked right to counsel," id. at 1044, the court must determine whether the government met its "burden... to show that subsequent events indicated a waiver of the Fifth Amendment right to have counsel present during the interrogation," id.at 1044-45 (referencing Edwards, 451 U.S. at 486 n.9). "This inquiry, of course, also includes an examination of the voluntariness of the waiver." United States v. Straker, 596 F. Supp. 2d 80, 95 (D.D.C. 2009) (citations omitted). Thus, the waiver determination "'depends upon the particular facts and circumstances surrounding [the] case, including the background, experience, and conduct of the accused.'" Id.(quoting Bradshaw, 462 U.S. at 1046) (alteration in original).
There is no doubt on this record, as the parties recognize, that Mr. Dorsey invoked his right to counsel during the first phase of police interrogation, and that the police improperly ignored his request. Thus, the critical questions are whether Mr. Dorsey subsequently initiated conversation with the police on the afternoon of May 8, and whether he knowingly and intelligently, and voluntarily, waived his Fifth Amendment right to have an attorney present during the second phase of police interrogation.
We begin our analysis with a threshold matter. Mr. Dorsey insists that "initiation" is impossible in this case since he invoked his right to counsel during the first phase of the interrogation. As he states in his reply brief: "Mr. Dorsey does not challenge the trial court's finding that he knocked on the cellblock door and asked to speak to Detective Ross. Rather, Mr. Dorsey contends that his request could not qualify as an 'initiation' under Edwards, because Edwards does not make its initiation exception available after police have violated Edwards." He invites us to "adopt the reasoning of Judge Kozinski's concurrence in Collazo v. Estelle, 940 F.2d 411 (9th Cir. 1991) (en banc), and hold that the initiation 'escape hatch' is unavailable when police refuse to cease an interrogation after a request for counsel and badger the defendant to give up his rights." We decline to adopt that reasoning because we do not believe that Fifth Amendment jurisprudence supports what we understand to be Mr. Dorsey's argument - that the prophylactic rule announced by Edwards/Miranda means that once a defendant invokes his right to counsel and police continue their interrogation, he cannot thereafter validly initiate a conversation with the police. Edwards did not announce such an absolute prohibition; nor does Mr. Dorsey call our attention to any cases which have adopted this type of categorical bar with respect to initiation by a defendant.*fn5
Indeed, as the government asserts, the "categorical rule" which Mr. Dorsey advocates "is undermined by the number of cases where courts have upheld the admission of defendant-initiated statements despite the fact that the police, in an earlier interview, failed to respect the defendant's invocation of rights." See, e.g., Howard v. Moore, 131 F.3d 399, 412-14 (4th Cir. 1997) (en banc); State v. Yoh, 910 A.2d 853, 860-62 (Vt. 2006). Furthermore, we do not believe that the Edwards rule was designed to end any possibility of a voluntary confession after a defendant invokes his right to counsel under the Fifth Amendment, which the police ignore. Without voluntary confessions, any number of crimes could not be resolved, and hence there would be "substantial costs to the truth-seeking process and the criminal justice system." Montejo v. Louisiana, 129 S.Ct. 2079, 2091 (2009) (citations omitted). In short, we reject Mr. Dorsey's threshold argument, and since he has not challenged the trial court's finding that he initiated conversation with Detective Ross on the afternoon of May 8, we proceed to determine whether he knowingly and intelligently waived his Fifth Amendment right to counsel before he confessed, and whether the waiver was voluntary.
The question whether Mr. Dorsey knowingly and intelligently waived his Fifth Amendment right to counsel before he confessed, and whether any waiver was voluntary, gives us some pause, particularly since the police did not reiterate the Miranda warnings before posing questions to Mr. Dorsey on the afternoon of May 8.*fn6 The burden to demonstrate a knowing and intelligent, and voluntary waiver rests with the government. Bradshaw, 462 U.S. at 1044-45. To examine this issue, we look at "'the totality of the circumstances, including the necessary fact that the accused, not the police, reopened the dialogue with the authorities.'" Id.at 1046 (quoting Edwards, supra, 451 U.S. at 486 n.9). That is, we focus on "the particular facts and circumstances surrounding [this] case, including the background, experience, and conduct of the accused."*fn7 Id. at 1046 (internal quotation marks and citations omitted). We are convinced on this record that "the failure of [the police] to provide [Mr. Dorsey] with new Miranda warnings impacts only slightly on the validity of his waiver of the right to counsel, because only a [relatively] short time had passed between [his] receiving the Miranda warning and [his] requesting to speak with [Detective Ross and Officer Crespo]," United States v. Velasquez, 885 F.2d 1076, 1087 (3d Cir. 1989), and because the waiver is supported by the "totality of the circumstances."
Here, Mr. Dorsey initially waived his Miranda rights but then invoked his right to counsel during the first phase of interrogation, thus showing that he was aware of his right to counsel. At that time, he not only had substantial experience with the criminal justice system due to his multiple arrests and ten prior convictions, but as a high school graduate he was able to read, write and understand the English language. During the second phase of police questioning, Mr. Dorsey further demonstrated his awareness of his rights through a comment to Officer Crespo after the break in questioning following his confession. He stated to Officer Crespo: "I know y'all [did not have a] case on me. I could have probably gone to court and beat it anyway." What undoubtedly motivated Mr. Dorsey to initiate the conversation with the police and to confess, as the trial court found, was his remorse at having hit an elderly woman. As Mr. Dorsey remarked at least four times during his conversation with Officers Crespo and Young, he did not know the victim was "that old." He also recalled that he had "never [before] robbed a woman in [his] life." Hence, we have no doubt that Mr. Dorsey knowingly and intelligently waived his right to counsel before he confessed. We turn now to whether his waiver was voluntary.
Mr. Dorsey's initiation of conversation with the police on May 8, which he concedes is part of our "totality of the circumstances" analysis, contributed to the voluntariness of his waiver. Bradshaw, supra, 462 U.S. at 1046. The trial court explicitly credited the testimony of Detective Ross and Officer Crespo that Mr. Dorsey, not the police, initiated the conversation, and the court expressly discredited Mr. Dorsey's testimony that he did not initiate the conversation with the police. The trial court found credible Detective Ross's testimony that while Mr. Dorsey was still in his cell around 3:30 or 4:00 p.m. in the afternoon, an officer heard him ask to speak with Detective Ross and heard him say "that he wanted to confess." Mr. Dorsey was taken to an interview room to wait for Detective Ross. While he was there, Officer Crespo passed by and Mr. Dorsey called out to him that he wanted to speak with the officer "about what I did." There is no ambiguity in Mr. Dorsey's words. Clearly his words at least "evinced a willingness and a desire for a generalized discussion about the investigation" into the robbery of Ms. Fotopoulous. Bradshaw, supra, 462 U.S. at 1045-46. Significantly, when Officer Crespo said to Mr. Dorsey, before asking any questions during the second phase of the police interview, "you called out to me" and "[y]ou obviously said you wanted to talk about this," Mr. Dorsey did not protest or deny that he made a request to talk to Officer Crespo. ...