# Ruffin v. United States

> District of Columbia Court of Appeals · April 16, 1987 · 524 A.2d 685

URL: https://www.frixlaw.com/law-library/cases/9646842

## Case

- **Full name:** Antone D. RUFFIN, Appellant, v. UNITED STATES, Appellee; James R. SHAW, Appellant, v. UNITED STATES, Appellee
- **Court:** District of Columbia Court of Appeals
- **Decided:** April 16, 1987
- **Citations:** 524 A.2d 685; 1987 D.C. App. LEXIS 331
- **Precedential status:** Published
- **Opinion:** Concurring in part by Mack
- **Judges:** MacK, Ferren, Rogers
- **Cited by:** 27 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9646842

## How later opinions describe it (automated extraction)

- finding that although the defendant was not initially in custody when he voluntarily came to the police station and was told he was not under arrest, he was in custody when officers later interrogated him in a “coercive atmosphere,” and gave him no further “indication . . . th…
- stating that the government bears some burden for the delay caused by a codefendant’s continuances where the government chose to join defendants, but in light of the policy considerations favoring joinder, the delay was not weighed heavily against the government
- holding that second-degree murder conviction was supported by "overwhelming” evidence where testimony showed that defendant had repeatedly "stomp [ed]” decedent, rendering decedent bloody and semiconscious
- holding that sufficient evidence supported an accessory after the fact conviction where, inter alia, appellant urged principal not to speak to the police
- holding that sufficient evidence supported an accessory after the fact conviction where, inter aha, appellant urged principal not to speak to the police

## Opinion text

MACK, Associate Judge,
concurring in part and dissenting in part:
Today the majority of this division takes a giant step towards trampling the constitutional protections guaranteed by the Fourth and Fifth Amendments. It treads on dangerous ground in holding, contrary to the reasoning of the United States Supreme Court in numerous cases, that the admission into evidence at trial of a written confession obtained in violation of the Fifth Amendment can be harmless error. The majority goes on to find the error harmless beyond a reasonable doubt, in spite of a record that is unequivocally to the contrary. Finally, it reaches the startling conclusion, on facts indistinguishable from those present in Dunaway v. New York, 442 U.S. 200 , 99 S.Ct. 2248 , 60 L.Ed.2d 824 (1979), that the government has been relieved of its heavy burden of proving that a suspect voluntarily waived a Fourth Amendment right to be free from illegal seizure, merely because a trial court has questioned the credibility of that suspect. I find these holdings to go beyond the outer limits of constitutional reason, case-law, or common sense. I therefore do not agree that appellant Ruffin’s second-degree murder conviction can be affirmed. 1
I
FIFTH AMENDMENT ISSUES
Because the Fifth Amendment guarantees that no person shall “be compelled in any criminal case to be a witness against himself [or herself],” law enforcement officers cannot constitutionally extract involuntary confessions. I do not think it open to question that the United States Supreme *707 Court has never applied “harmless error” analysis to uphold a conviction following the introduction into evidence of a post- Miranda confession obtained contrary to the mandate of that decision. See Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).
It has long been recognized that there is a “compulsion inherent in custodial interrogation,” Moran v. Burbine, 475 U.S. 412 , 106 S.Ct. 1135, 1143 , 89 L.Ed.2d 410 (1986), and that “the interrogation process is ‘inherently coercive,’ ” id. 106 S.Ct. at 1144 . The purpose of the rule in Miranda , that an individual under interrogation by government authority must be informed of the right to counsel, is in part “to dissipate th[is] compulsion.” Moran v. Burbine, supra, 106 S.Ct. at 1143 . “Fifth Amendment rights c[an] be adequately protected ... only if the suspect clearly understands] that at any time he [or she] c[an] ... call in an attorney to give advice and monitor the conduct of his [or her] interrogators.” Id. at 1144.
Appellant Antone Ruffin’s Fifth Amendment right to be protected from compelled self-incrimination was violated in this case, as the majority concedes, by Officer Muse’s circumvention of his responsibility to inform Ruffin of his right to counsel. Edwards v. Arizona, 451 U.S. 477, 481-82 , 101 S.Ct. 1880, 1883-84 , 68 L.Ed.2d 378 (1981); see Michigan v. Jackson, — U.S. -, 106 S.Ct. 1404, 1407 , 89 L.Ed.2d 631 (1986). In Edwards , the Supreme Court held that a request for counsel “is per se an invocation of [ ] Fifth Amendment rights, requiring that all interrogation cease.” 451 U.S. at 485 , 101 S.Ct. at 1885 . The majority agrees that Ruffin’s equivocal request for counsel required at least further inquiry concerning the request before any interrogation could resume. No further inquiry was made. The conclusion of circumvention is buttressed by facts showing that Officer Muse, reacting to Ruffin’s request, actually convinced the suspect that on the facts of his case — since he was claiming self-defense — he did not need a lawyer, and that Ruffin, who had had no prior dealings with the criminal justice system, believed the officer.
It is only “full comprehension of the right to ... request an attorney,” that can dispel the “coercion [that] is inherent in the interrogation process.” Moran v. Burbine, supra, 106 S.Ct. at 1144. Because Officer Muse ignored his responsibilities under Edwards and Miranda to fairly inform Ruffin of his right to counsel, the inherent compulsion and coercive nature of the interrogation process was never dissipated. Without being fully informed of his rights, and his interrogators fully respecting any attempt to exercise those rights, no statement given to Officer Muse by Ruffin could ever “truly be the product of his free choice.” Miranda, supra, 384 U.S. at 458 , 86 S.Ct; at 1619.
A
The majority is therefore right in concluding that the written confession was taken involuntarily in violation of the Fifth Amendment; it is wrong in concluding that the erroneous admission into evidence of the statement obtained by Officer Muse through this unconstitutional stratagem does not require automatic reversal of Ruf-fin’s conviction. See Michigan v. Jackson, supra, 106 S.Ct. 1404 (affirming reversal of conviction where statement was taken following a request for counsel that was ignored, notwithstanding existence of several other valid confessions and without engaging in harmless error analysis); Edwards, supra, 451 U.S. 477 , 101 S.Ct. 1880 (admission of confession obtained following thwarted attempt to exercise right to counsel requires reversal of conviction; weight or sufficiency of other evidence introduced at trial is not an issue).
“[S]ome constitutional errors require reversal without regard to the evidence in the particular case.” Rose v. Clark, — U.S. -, 106 S.Ct. 3101, 3106 , 92 L.Ed.2d 460 (1986). “This limitation recognizes that some errors necessarily render a trial fundamentally unfair.” Id. The admission of Ruffin’s involuntary statement into evidence is one such error, and requires that his conviction be set aside without regard to the weight of any additional evidence *708 introduced against him at trial. See id. 106 S.Ct. at 3111 (Stevens, J., concurring) (“The admission of a coerced confession can never be harmless even though the basic trial process is otherwise completely fair and the evidence of guilt overwhelming”); Chapman v. California, 386 U.S. 18 , 23 & n. 8, 87 S.Ct. 824 , 827 & n. 8, 17 L.Ed.2d 705 (1967) (introduction of a coerced confession violates one of the “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error”) (cited for the contrary proposition by the majority, see ante at 705; id. at 42-43 , 87 S.Ct. at 836-37 (Stewart, J., concurring) (same); id. at 52 n. 7, 87 S.Ct. at 842 n. 7 (Harlan, J., dissenting) (“particular types of error [including the introduction of involuntary confessions] have an effect which is so devastating or inherently indeterminate that as a matter of law they cannot reasonably be found harmless”). 2
The Supreme Court has repeatedly so held and has emphatically rejected application of any harmless error doctrine to errors of this type. See, e.g., Michigan v. Jackson, supra, 106 S.Ct. 1404 (automatically remanding for new trial without considering whether error was harmless); Edwards, supra, 451 U.S. 477 , 101 S.Ct. 1880 (same); Lego v. Twomey, 404 U.S. 477, 483 , 92 S.Ct. 619, 623 , 30 L.Ed.2d 618 (1972) (it is “axiomatic ... that a defendant in a criminal case is deprived of due process of law if his [or her] conviction is founded, in whole or in part, upon an involuntary confession ... even though there is ample evidence aside from the confession to support the conviction”); Chapman v. California, supra, 386 U.S. at 23 & n. 8, 87 S.Ct. at 827 & n. 8 (constitutional harmless error doctrine does not apply to introduction of involuntary confessions; reversal is automatically required); Jackson v. Denno, 378 U.S. 368, 376 , 84 S.Ct. 1774, 1780 , 12 L.Ed.2d 908 (1964) (axiomatic that due process requires automatic reversal of conviction founded in whole or in part upon involuntary conviction); Haynes v. Washington, 373 U.S. 503, 518-19 , 83 S.Ct. 1336, 1345-46 , 10 L.Ed.2d 513 (1963) (due process requires automatic reversal without regard to weight of other evidence; indeed, in many such cases, “independent corroborating evidence left little doubt as to the truth of what the defendant had confessed”); Lynumn v. Illinois, 372 U.S. 528, 537 , 83 S.Ct. 917, 922 , 9 L.Ed.2d 922 (1963) (claim that introduction of involuntary confession “was a harmless [error] in the light of other evidence of the [defendant’s] guilt[] ... is an impermissible doctrine”); Rogers v. Richmond, 365 U.S. 534, 540-41 , 81 S.Ct. 735, 739 , 5 L.Ed.2d 760 (1961) (due process requires reversal of conviction following introduction of involuntary confession, regardless of other evidence, because “ours is an accusatorial and not an inquisitorial system — a system in which the State must establish guilt by evidence independently and freely secured”); Spano v. New York, 360 U.S. 315, 324 , 79 S.Ct. 1202, 1207 , 3 L.Ed.2d 1265 (1959) (admission of involuntary confession requires automatic reversal); Payne v. Arkansas, 356 U.S. 560, 568 , 78 S.Ct. 844, 850 , 2 L.Ed.2d 975 (1958) (“where, as here, a coerced confession constitutes a part of the evidence before the jury and a general verdict is returned, no one can say what credit and weight the jury gave to the confession. And in these circumstances this Court has uniformly held that even though there may have been sufficient evidence apart from the coerced confession to support a judgment of conviction, the admission in[to] evidence, over objection, of the coerced confession vitiates the judgment because it violates the Due Process Clause”); Stroble v. California, 343 U.S. 181, 190 , 72 S.Ct. 599, 603 , 96 L.Ed. 872 (1952) (if a confession is “involuntary, the conviction cannot stand, even *709 though the evidence apart from that confession might have been sufficient to sustain the jury’s verdict”); Malinski v. New York, 324 U.S. 401, 404 , 65 S.Ct. 781, 783 , 89 L.Ed. 1029 (1945) (introduction of such a confession requires that judgment of conviction be set aside “even though the evidence apart from the confession might have been sufficient to sustain the jury’s verdict”); Lyons v. Oklahoma, 322 U.S. 596 , 597 n. 1, 64 S.Ct. 1208 , 1210 n. 1, 88 L.Ed. 1481 (1944) (“Whether or not the other evidence in the record is sufficient to justify the general verdict of guilty is not necessary to consider. ... If such admission of this confession denied a constitutional right to defendant the error requires reversal"); Bram v. United States, 168 U.S. 532, 541 , 18 S.Ct. 183, 186 , 42 L.Ed. 568 (1897) (“If [a confession is] found to have been illegally admitted, reversible error will result, since the prosecution cannot on the one hand offer evidence to prove guilt, and which by the very offer is vouched for as tending to that end, and on the other hand for the purpose of avoiding the consequences of the error caused by its wrongful admission, be heard to assert that the matter offered as a confession was not prejudicial because it did not tend to prove guilt”).
“[Vjiolations of certain constitutional rights are not, and should not be, subject to harmless error analysis because those rights protect important values that are unrelated to the truth-seeking function of the trial.” Rose v. Clark, supra, 106 S.Ct. at 3111 (Stevens, J., concurring). The admission into evidence of a custodial statement obtained without Fifth Amendment safeguards, as one such violation, requires that Ruffin be afforded a new and fair trial. The majority’s conclusion to the contrary not only sanctions the inherently prejudicial introduction of involuntary confessions, but also puts this court in the position of condoning official violation of procedural safeguards designed to protect the citizen against unlawful police activity. As the press recently reminded,
the Miranda ruling states a basic guarantee that was given to Americans in the Constitution and [the history of custodial interrogation set forth in that opinion] reveals what happens if that guarantee is not honored. Making light of Miranda is a grave error, for in so doing one belittles our freedoms. That can be a road back to 1930, or to 1800 or to 1600. It is a road on which we should not willingly set foot.
Rose, ‘Miranda’ Under Attack, The Washington Post, Nov. 25, 1986, at A21, col. 1.
B
Even if we were to accept the premise that the caselaw permits this court, in reaching its disposition, to measure the weight of evidence introduced at trial over and above an involuntary confession, the majority would be in no better position. On the facts of this case, no fair reading of the record can permit the conclusion that the admission into evidence of Ruffin’s statement to Detective Muse was harmless error. The prosecution, in proving its case for the charge of second-degree murder, relied almost entirely upon this involuntary statement. 3 The majority painstakingly analyzes the question of whether there is other evidence in the record to prove that it was Ruffin who inflicted the injuries leading to the death of the victim, apparently failing to realize that no one disputes that it was Ruffin who delivered the fatal blows. Indeed, Ruffin himself testified to that effect. Justice Frankfurter once remarked that “On the question you ask depends the answer you get.” Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 484 , 68 S.Ct. 1186, 1206 , 92 L.Ed. 1502 (1948) (dissenting). Here, because the majority has posed the wrong question, it has arrived at the wrong answer.
The issue before the jury was not whether Ruffin had caused the victim’s death, but whether he had done so with the malice necessary to convict of second-degree murder. The finding of malice, a contested state of mind, is peculiarly within the prov *710 ince of the jury; it is not generally one which this court can fairly make from a cold record. See Jones v. United States, 516 A.2d 929, 931 (D.C.1987) (“Intent being a state of mind, unless admitted by the defendant, it must be shown by circumstantial evidence ‘because there is no way of fathoming and scrutinizing the human mind’ ” (emphasis added; citation omitted)); see also Shelton v. United States, 505 A.2d 767, 770 (D.C.1986) (same). The majority unrealistically ignores the obvious effect of what was presented to the jury as Ruffin’s own admission of malice. It then finds the error harmless by engaging in a subjective evaluation of other evidence which is necessarily open to conflicting interpretations as to intent. In doing so, the majority never explicitly finds the malice which is a required part of any harmless error analysis, it perfunctorily treats Ruffin’s claim of self-defense, 4 and it omits even to mention Ruffin’s alternative defense of adequate provocation caused by the news of his sister’s rape. 5
The error in admitting the challenged statement could be harmless only if, beyond a reasonable doubt, it “did not contribute to the verdict obtained.” Chapman v. California, supra, 386 U.S. at 24 , 87 S.Ct. at 828 . Here, the converse is true: there can be no doubt that the written statement did contribute to Ruffin’s second-degree murder conviction. The government’s case showed that Ruffin’s combat with Clifford Wilson followed upon information given to him that Wilson had raped Ruffin’s sister. The government’s case thus put in issue Ruffin’s defenses to second-degree murder, that the killing was committed upon adequate provocation or in self-defense. “[Wjhen a defense to second degree murder — adequate provocation, for example — has been put in issue, the Government must prove its absence beyond a reasonable doubt.” United States v. Alexander, 152 U.S.App.D.C. 371 , 392, 471 F.2d 923, 944 , cert. denied, 409 U.S. 1044 , 93 S.Ct. 541 , 34 L.Ed.2d 494 (1972). The trial court correctly instructed the jury that, in order to make a case for second-degree murder, the prosecution was required to “prove beyond a reasonable doubt that the defendant did not injure the deceased in the heat of passion, caused by adequate provocation,” and that if the jury did find heat of passion/provocation, “[t]hat reduces [the charge] to manslaughter.” The court also instructed the jury on the government’s additional burden to prove beyond a reasonable doubt that Ruffin was not acting in self-defense.
The inadmissible written statement was the sole prosecution evidence that anything other than the news of his sister’s rape had motivated Ruffin in fighting with Wilson. Nothing in Ruffin’s oral statement, see majority opinion, ante at note 1, or in the testimony adversely described his mental state at the time of the incident. In contrast, in the written statement, Officer Muse recorded that he had asked Ruffin if Clifford Wilson, the victim, was a friend of his. Ruffin responded, “Nope, frankly we don’t get along. As far as I am concerned he is just another one of them ‘herb-smoking Street Niggers.’ ” Ruffin then remarked that he was “teaching [Wilson] a lesson, you can’t keep going around mistreating people and expecting nothing to happen.” 6
In addition to introducing this critically damaging admission in its case-in-chief, the government made extensive use of it in both its opening and closing arguments. In his opening, counsel for the government stated, “Antone Ruffin, you’ll hear, had some animosity toward Clifford Wilson.” Later in the opening the prosecutor said *711 that Ruffin “didn’t like Clifford Wilson. Clifford Wilson had had some dealings with [Ruffin’s] family before and [Ruffin] didn’t like him. Clifford Wilson had it coming to him and [Ruffin] wasn’t sorry.”
The prosecutor went back to this statement in his closing argument. He urged the jury “to return the only verdict consistent with the evidence in the case, that is, second-degree murder against Antone Ruf-fin. The reason that I would ask you to return second-degree murder rather than manslaughter is that Antone Ruffin has told the police in his statement that he did not like Clifford Wilson, that he didn’t like him.... Antone Ruffin didn’t like Cliff Wilson. Maybe he thought that this was a good excuse to try to get back at Cliff Wilson or whatever.... That is why this is second-degree murder, ladies and gentlemen, and not manslaughter.” (Emphasis added.) In defining malice for the jury, the prosecutor said that malice “doesn’t mean that [Ruffin] hated Clifford Wilson or that he felt hostility toward Clifford Wilson. It doesn’t necessarily mean those things. But those things can come into play.” (Emphasis added.)
In sum, the prosecution relied entirely on Ruffin’s written statement to meet its burden to disprove, beyond a reasonable doubt, self-defense or heat of passion upon adequate provocation and, in addition, relied upon it to show malice, a necessary element of second-degree murder. The second-degree murder conviction, by the prosecutor’s own definition, was based on the involuntary, inadmissible, written statement; its admission into evidence cannot possibly be characterized as harmless. For this reason alone therefore, even if harmless error doctrine does apply, Ruffin’s conviction must be reversed.
II
THE FOURTH AMENDMENT VIOLATION
In my view, even if there had been no Fifth Amendment violation in this case, Ruffin’s conviction must still be reversed. The Fourth Amendment provides that “[t]he right of the people to be secure in
their persons, ... against unreasonable searches and seizures, shall not be violated ... but upon probable cause_” In addition to the involuntary, inadmissible, written statement, the government relied upon the admission into evidence of an oral statement and blood-stained clothing. The Fourth Amendment requires that Ruffin’s written and oral statements to the police, together with the pants and shoes seized from him, be suppressed as the fruits of his unlawful custody. Ruffin was seized by the police and taken to police headquarters without probable cause. The government did not show that Ruffin waived his Fourth Amendment right to be free of unlawful seizures or that he had consented to accompany the police to the stationhouse. The government unquestionably has the burden to show a waiver of fundamental rights and its failure to do so here required that all evidence obtained by virtue of the unlawful seizure be suppressed.
The issue of whether the statements and physical evidence should have been suppressed as the fruit of Ruffin’s unlawful seizure is entirely distinct from the question of whether Ruffin’s written statement to Detective Muse was obtained in violation of the Fifth Amendment, and the two questions must be analyzed separately. Lanier v. South Carolina, 474 U.S. 25 , 106 S.Ct. 297, 298 , 88 L.Ed.2d 23 (1986) (per curiam) (summarily remanding decision which held that voluntariness of confession obtained following illegal seizure purged the taint of that seizure, reemphasizing separate nature of Fourth and Fifth Amendment analyses); Taylor v. Alabama, 457 U.S. 687, 690 , 102 S.Ct. 2664, 2667 , 73 L.Ed.2d 314 (1982) (similar).
It is undisputed that Ruffin was picked up at his sister’s home by two police officers and transported in the back of a squad car to police headquarters. It is also undisputed that when the police officers picked him up, they did so without probable cause to arrest or seize. It is fundamental that this type of activity by the police is an illegal seizure unless the target has agreed to waive his Fourth Amendment right and *712 has consented voluntarily to accompany the police. Dunaway v. New York, supra, 442 U.S. at 207 , 99 S.Ct. at 2253 . The government “has the burden of establishing a valid waiver,” Michigan v. Jackson, supra, 106 S.Ct. at 1409 (citation omitted). Our function as a reviewing court is to “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Id. (quoting Johnson v. Zerbst, 304 U.S. 458, 464 , 58 S.Ct. 1019, 1023 , 82 L.Ed. 1461 (1938)). “Doubts must be resolved in favor of protecting the constitutional claim.” Id.
Rather than protect the constitutional claim, the majority chooses to “indulge every presumption,” reasonable and unreasonable, in favor of the government. The prosecution never made any case that Ruf-fin had waived his Fourth Amendment right to be free from unreasonable seizures. The majority relies on the testimony of Detective Hosea Dyson. At the suppression hearing, Dyson testified as follows: “I called [Ruffin’s] home address and asked him to come down to the office in reference to our investigation.” The prosecutor then asked, “And did he do so voluntarily?”. Dyson responded, “Yes, sir.” Dyson, however, did not pick Ruffin up — that was done by Officers Terra Alexander Williams and James Brown — and Dyson therefore had no knowledge of whether Ruffin had agreed to accompany Williams and Brown voluntarily or not. Ruffin later testified that he had never spoken on the phone to Dyson and at the trial Dyson started to testify, until cut off by a hearsay objection, that it was a Lieutenant Alexander who had made the call. That it was Alexander who had made the call was also confirmed by Brown, who said that Lieutenant Alexander had told him where to pick up Ruffin. Dyson’s legal conclusion (given in response to the prosecution’s rather leading question — “And did he do so voluntarily?” — “Yes, sir”) is therefore entitled to no weight at all.
Precious little other testimony was introduced on the issue of voluntariness. Officer Williams testified that she had “asked [Ruffin] if he would go down with us because they wanted to talk to him down at the Homicide Branch.” Ruffin’s response is not recorded. Officer Brown testified that he was ordered to pick up Ruffin, and stated that “[apparently someone at the Homicide Branch had in fact talked to Mr. Ruffin and apparently he was voluntarily coming down.” Although Officer Brown testified that if Ruffin had asked, Brown would have let him out of the car, Brown’s thoughts in this regard were never communicated to Ruffin; neither Brown nor Williams in any way indicated to Ruffin that he was free to refuse to accompany them.
In contrast, Ruffin testified that the police had spoken to Sebert Harvey, Ruffin’s sister, not to Ruffin, and that they had informed her that if Ruffin did not agree to come down to headquarters a bench warrant would be issued for his arrest. The prosecution never rebutted this statement. See majority opinion, ante at 698 (“despite Ruffin’s ‘bench warrant’ testimony — and despite the officers’ own knowledge of what Ruffin had said to them and of what the police had, or had not, said to Ruffin’s sister — all the officers left out a vital testimonial link between the police requests and Ruffin’s willingness to accompany them”).
The Supreme Court evaluated a nearly identical set of facts in Dunaway, supra, 442 U.S. 200 , 99 S.Ct. 2248 . There, without probable cause, a police supervisor ordered detectives to pick up petitioner Dunaway and bring him in. Like Ruffin, Dunaway was not told that he was under arrest. He was driven to police headquarters in a police car and placed in an interrogation room and, initially like Ruffin, was given Miranda warnings. Dunaway subsequently made statements and drew pictures that incriminated him. Id. at 203, 99 S.Ct. at 2251 . As in this case, the government there contended that Dunaway “accompanied the police voluntarily and therefore was not ‘seized.’ ” Id. at 207 n. 6, 99 S.Ct. at 2253 n. 6. The Supreme Court rejected this claim, based, in part, on the trial court’s determination that the seizure was not voluntary since “this case does not involve a situation where the defendant voluntarily appeared [of his own accord] at *713 police headquarters in response to a request of the police.” Id. at 205 , 99 S.Ct. at 2252 (quoting People v. Dunaway (Monroe County Ct., N.Y., Mar. 11, 1977), App. 116, 117). The Supreme Court also relied upon the Ali’s Model Code of PRE-ARRaignment PROCEDURE § 2.01(3) and commentary, p. 91 (Tent. Draft No. 1, 1966), which states that a reasonable person faced with a request by police officers to come to police headquarters may feel compelled to do so unless the request “is clearly stated to be voluntary.” Quoted in Dunaway, supra, 442 U.S. at 207 n. 6, 99 S.Ct. at 2253 n. 6. The police did not tell Dunaway that he was free not to accompany them, just as they failed in this case to so inform Ruffin. The Supreme Court concluded that
the detention of petitioner was in important respects indistinguishable from a traditional arrest. Petitioner was not questioned briefly where he was found. Instead, he was taken from a neighbor’s home to a police car, transported to a police station, and placed in an interrogation room. He was never informed that he was “free to go”....
Id. at 212 , 99 S.Ct. at 2256 . The Court continued:
The application of the Fourth Amendment’s requirement of probable cause does not depend on whether an intrusion of this magnitude is termed an “arrest” under state law. The mere facts that petitioner was not told he was under arrest, was not “booked”, and would not have had an arrest record if the interrogation had proved fruitless ... obviously do not make petitioner’s seizure even roughly analogous to the narrowly defined intrusions involved in Terry [v. Ohio, 392 U.S. 1 , 88 S.Ct. 1868 , 20 L.Ed.2d 889 (1968),] and its progeny. Indeed, any “exception” that could cover a seizure as intrusive as that in this case would threaten to swallow the general rule that Fourth Amendment seizures are “reasonable” only if based on probable cause.
Id. at 212-13, 99 S.Ct. at 2256-57 . Finally, the Court held
[t]he central importance of the probable-cause requirement to the protection of a citizen’s privacy afforded by the Fourth Amendment’s guarantees cannot be compromised in this fashion. ... [Detention for custodial interrogation — regardless of its label — intrudes so severely on interests protected by the Fourth Amendment as necessarily to trigger the traditional safeguards against illegal arrest.
Id. at 213, 216 , 99 S.Ct. at 2257, 2258 .
The only factor differentiating this case from Dunaway is that there the parties stipulated that had Dunaway attempted to leave police custody he would have been restrained. Here, the police testified that if Ruffin had attempted to leave he would have been free to do so. This is a distinction without a difference, for it is not the subjective intent of the police that determines when a seizure has taken place, but the extent to which that subjective intent has been communicated to the suspect. “[T]he subjective intention of the [law enforcement] agent in this case to detain the respondent, had she attempted to leave, is irrelevant except insofar as that may have been conveyed to the respondent.” United States v. Mendenhall, 446 U.S. 544 , 554 n. 6, 100 S.Ct. 1870 , 1877 n. 6, 64 L.Ed.2d 497 (1980) (Stewart, J., joined by Rehnquist, J.); see also id. at 560 n. 1, 100 S.Ct. at 1880 n. 1 (Powell, J., joined by Burger, C.J., and Blackmun, J., concurring); id. at 575 & nn. 12, 13, 100 S.Ct. at 1888 nn. 12, 13 (White, J., joined by Brennan, Marshall, and Stevens, JJ., dissenting); New York v. Quarles, 467 U.S. 649 , 656 n. 6, 104 S.Ct. 2626 , 2631 n. 6, 81 L.Ed.2d 550 (1984) (citing United States v. Mendenhall, supra 446 U.S. at 554 & n. 6, 100 S.Ct. at 1877 & n. 6). In both Dunaway and this case, the government failed to show that law enforcement officials had in any way communicated to their suspects that they were free to refuse to accompany the police to the station-house. The result in Dunaway accordingly governs here: Ruffin was illegally seized and, since there were no intervening circumstances that could attenuate the taint of the illegal seizure, Duna-way, supra, 442 U.S. at 218 , 99 S.Ct. at 2259 , its “fruits” — two statements and *714 Ruffin’s clothing — should have been suppressed.
My colleagues make the unique argument that because Ruffin chose to testify at the suppression hearing, and the trial court did not find Ruffin’s testimony at that hearing to be credible, the trial court’s lack-of-credibility finding relieved the government of its normal burden to demonstrate a waiver of Fourth Amendment rights. Majority opinion, ante at 690-698. Since there is no logical connection between Ruffin’s credibility and the government’s initial heavy burden to show consent or waiver, merely to state this argument is to refute it. The fact that the trial court found Ruffin's testimony incredible could in no way diminish the burden upon the government to show a waiver of Fourth Amendment rights. The truth or falsity of the statements which the trial court found not credible — that Ruffin was handcuffed and that he had been intimidated by unidentified police officers — is neither determinative nor even relevant.
The majority begins with the observation that “one is struck ... by how elusive” is the answer to the question whether Ruffin did or did not go voluntarily to the police station. Majority opinion, ante at 690. Given the fact that every doubt must be resolved in favor of protecting Ruffin’s constitutional claim, this concession should be enough to end the inquiry. Instead, the majority tortuously resolves its initial doubt against Ruffin. Behind the circular twenty-page (on-again, off-again, burden-shifting) analysis engaged in by the majority is the singular conclusion that by choosing to testify at the suppression hearing Ruffin took his chance that if he had the misfortune to be disbelieved by the trial court he would thereby relieve the government of its heavy burden to demonstrate a waiver of a constitutional right. See, e.g., majority opinion, ante at 694 & n. 10, 690-697. 7 Given the questionable logic of this analysis, the level of solemnity with which it is trotted out would be humorous if its results were not so unfortunate. 8
The majority’s reliance on Mendenhall, supra, 446 U.S. 544 , 100 S.Ct. 1870 , is misplaced. There, the issue was whether heroin seized upon the search of the defendant at an airport was admissible into evidence. The defendant was stopped by drug enforcement agents and asked to accompany them to an office a few yards away. In holding that the search that uncovered the heroin was lawful, the Supreme Court stated:
it is especially significant that the respondent was twice expressly told that she was free to decline to consent to the *715 search, and only thereafter explicitly consented to it.... [S]uch knowledge was highly relevant to the determination that there had been consent. And, perhaps more important for our purposes, the fact that the officers themselves informed the respondent that she was free to withhold her consent substantially lessened the probability that their conduct could reasonably have appeared to her to be coercive.
Id. at 558-59 , 100 S.Ct. at 1879 . The factors relied upon by the Court in Men-denhall — the explicit statement to the defendant that she was free to refuse consent coupled with her explicit consent thereafter — are the very factors that are absent in this case and were absent in Dunaway . The majority’s preoccupation with Menden-hall and its failure to distinguish Duna-way are inexplicable.
In summary, I think the reversal of Ruf-fin’s conviction, on both Fifth and Fourth Amendment grounds, is constitutionally required. Antone Ruffin is entitled to a new — and this time fair — trial.
I respectfully dissent.
APPENDIX A
THE INVOLUNTARY, INADMISSIBLE, WRITTEN STATEMENT
This is the involuntary written statement which, as the majority concedes, was constitutionally inadmissible:
Attach PD 47 HERE
P.D. 118 Rev. 7/74
METROPOLITAN POLICE DEPARTMENT WASHINGTON, D.C. DEFENDANT/SUSPECT STATEMENT
1. Complaint No.
2. Nature of Investigation
Injured Person to the Hospital
3. Unit File No.
4. Statement of: (Last, First, Middle)
Ruffin, Antone Dewitt
5. DOB
03-13-58
6. Sex
M
7. Home Address
[omitted]
8. Home Phone
[omitted]
9. Location Statement Taken
Homicide Office
10. Name of Officer Taking Statement
(if other than block 16 include signature)
CLarence L. Muse
11. Date/Time Started
2/3/80 1439
12. Waiver of Rights and Statement
ADR [handwritten initials]
Not
You are under arrest. Before we ask you any questions you must understand what your rights are. You have the right to remain silent. You are not required to say anything to us at any time or to answer any questions. Anything you say can be used against you in court.
You have the right to talk to a lawyer for advice before we question you and to have him with you during questioning.
If you cannot afford a lawyer and want one, a lawyer will be provided for you. If you want to answer questions now without a lawyer present you will still have the right to stop answering at any time. You also have the right to stop answering at any time until you talk to a lawyer.
Do you understand these rights? yes. Do you wish to answer any questions? yes.
Are you willing to answer questions without having an attorney present? yes.
Q: Do you know the man who was injured inside the hallway of [address omitted] this morning?
A: Yes sir.
Q: Relate to me the circumstances as you know them, which led to the injuries received by the man?
*716 A: This morning about 0830 I was on the way to take my Bass Player home at 17th & Corcoran St. N.W., when I decided to drive by my mother’s apartment which is at [address omitted]. When we got there, my mother and my sister were sitting in her car getting ready to drive off. I asked them where they were going and they said that they were going up to my other sister[’s; name omitted] house because Cliff had tried to rape her. I told them that I would follow them up there. When we got to her apartment, she said that Cliff had tried to rape her. I asked her where he was and she said that he had just left, so I ran around the corner and up the steps to see if I saw him and there he was going up the steps. He was at the top of the steps and saw that he couldn’t out run me so he stopped and turned around and tried to push me down the steps. I went backw rds [sic] a couple of steps and grabbed the hand rail and went back up. He tried to swing and I blocked the punch. He fell and tried to grab my feet and push me back down the steps. So to keep him from pushing me down the steps I started kicking.
Q: How much punishment did you inflict on Cliff?
A: I hit him with a left-right combination to both sides of his face and he went down, he tried to get up but he couldn’t so he tried to kick me down the stairs, so I used my feet.
Q: How and where did you kick him?
A: I kick [sic] him once with a full house and to [sic] straight down stomps.
[blocks 13 through 17, as on Page 3; end Page 1]
[Page 2]
[heading, blocks 1 through 12, as on Page 1]
Q: When you last saw Cliff was he unconscious or was he alert?
A: He was unconscioys [sic].
Q: What was his condition?
A: I did a job on him.
Q: Do you know what part of the anatomy the kicks landed?
A: I believe, around the forehead, mouth and nose, but I’m not sure.
Q: How much blood was around when you last saw Cliff?
A: A whole lot of it.
Q: How long have you known Cliff?
A: Long as I can remember.
Q: Is he a friend of yours?
A: Nope, frankly we don’t get along. As far as I am concerned he is just another one of them “herb-smoking Street Niggers. ”
Q: Does he use drugs?
A: I don’t know about using drugs, but I know that he smokes Angel dust and Herbs.
Q: Did you have any blood on your shoes?
A: Yes, sir.
[blocks 13 through 17, as on Page 3; end Page 2]
[Page 3]
[heading, blocks 1 through 12, as on Page 1]
Q: What happened to the blood on your shoes?
A: I washed it off. I first wiped it off upstairs in my sisters apartment, but it didn’t come off too good, so I went down stairs to the basement and washed it off.
Q: Why didn’t you stay on the scene and talk to the police there?
A: I stayed there for a long time until the police told me to leave. They told me to get out of the hall so I just left.
Q: How long have you known Officer SHAW?
A: 8-10 years, I persume [sic]. Anyway it’s been a pretty good time.
Q: What happened to your Bass Player while this was happening?
A: He came up the steps behind me and he must have said something like “It not worth it” because I stopped when I heard this and we went back down stairs.
*717 Q: Did Officer SHAW hit Cliff?
A: I didn’t see him hit him because I wasn’t with him. I know what condition he was in when I left and it wasn’t good.
Q: Were you trying to kill Cliff?
A: No, sir, I was only defending myself and teaching him a lesson, you can’t keep going round mistreating people and expecting nothing to happen.
Q: Have you ever Boxed or taken Karate?
A: Yes, both of them.
13. I Have Read this Statement Given by me or Have Had it Read to me. I Fully Understand it and Certify that it is True and Correct to the Best of my Knowledge and Recollection.
Antone D. Ruffin [handwritten]
Signature of Person Giving Statement
14. Date/Time Ended 2/3/80 1548
15. Page 3 of Pages.
16. Officer Obtaining the Signature in Block 13:
Clarence Muse [handwritten]
Clarence L. Muse
(Name and Signature)
17. Person Witnessing the Signature in Block 13:
(Name and Signature)
Government Exhibit 27 (italics added for emphasis; bold face indicates standard printed language in original Form P.D. 118) (this is the involuntary written statement that the majority describes as “exculpatory,” see ante at 704-705).
APPENDIX B
THE CENTRAL ROLE OF THE INVOLUNTARY, INADMISSIBLE, WRITTEN STATEMENT
In returning its verdict of guilty to second-degree murder, the jury had to reject Ruffin’s defenses of self-defense (which, if accepted, would have required acquittal) or alternatively adequate provocation caused by the news of his sister’s rape (which, if accepted, would have reduced the conviction from second-degree murder to voluntary manslaughter). The majority affirms. It holds initially that the harmless error doctrine is applicable to the introduction of involuntary confessions, a notion I totally reject. Turning to the facts of this case, the majority goes on to find no reasonable possibility that the erroneous admission of the “exculpatory” written statement into evidence influenced the jury’s rejection of Ruffin’s theories of self-defense or adequate provocation and its verdict of guilty to second-degree murder. What follows is a summary of the central role the written statement played in Ruffin’s trial.
THE PROSECUTOR’S OPENING ARGUMENT TO THE JURY
In his opening argument, the prosecutor relied several times upon the written statement. He told the jury that “Antone Ruf-fin, you’ll hear, had some animosity toward Clifford Wilson, anyway runs off in pursuit of Clifford Wilson, and [the bass player], his friend, follows.” (Emphasis added.) The prosecutor, reciting facts and language drawn directly from the written statement, continued:
Antone Ruffin charged up those stairs, according to his own statement, and ... Clifford Wilson tried to push him back, he charged up the stairs. Antone Ruf-fin, who is highly trained in karate, has boxed ... put him down on the floor with two kicks, left-right combination, put him down on his back, and then proceeded to stomp his face, and his head, and his body. And he kept doing it until finally [the bass player] heard what was going on and came up the stairs and pulled him off. [Emphasis added.]
Later in his opening argument, the prosecutor reminded the jury that in the homicide office Ruffin
made a statement to the police, [in] which he described what had happened. And [in] which he says he told the police that basically what I have just told you. He said that he had — he didn’t like Clifford Wilson. Clifford Wilson had had some dealings with his family before and he didn’t like him. Clifford Wilson had it coming to him and he wasn’t sorry. And he said Wilson good *718 and he stomped him. And you’ll hear testimony about the descriptions that he gave about his stomping Clifford Wilson into unconsciousness and doing a job on Clifford Wilson, the barefoot man who was running up the stairs away from him. [Emphasis added.]
THE PROSECUTOR’S EXAMINATION OF DETECTIVE MUSE
In testimony taking up ten pages of the transcript, the prosecutor asked Detective Clarence Muse “did you actually take a written statement from Mr. Ruffin?” After answering “Yes, I did,” Detective Muse was handed Government Exhibit 27 and described it as a copy of the statement that he took from Ruffin. Detective Muse testified that he advised Ruffin of his rights and (without alerting the jury to his failure to cease interrogation, and his legal advice that Ruffin did not need a lawyer, ensured that Ruffin was willing to make the statement. “He said, well, he didn’t have anything to hide.”
At the prosecutor’s request, Detective Muse then read the full statement out to the jury.
Having done so, Detective Muse described how Ruffin took the opportunity “to read the statement over to see if it was accurate.” Detective Muse testified that Ruffin signed the statement on each page and also signed it at the end with the words: “I read this statement given by me or have had it read to me. I fully understand it. I certify that it is true to the best of my knowledge and recollection.” [This, and similar exchanges at other points during the trial, lent an undeserved air of propriety and veracity to the involuntary, inadmissible, written statement.] According to Detective Muse, Ruffin’s demeanor during the giving of the statement was “Calm and unemotional, even stark at times.”
THE PROSECUTOR’S EXAMINATION OF DETECTIVE DYSON
The prosecutor returned to the inadmissible written statement during his examination of Detective Hosea E. Dyson. He asked “Do you know whether or not Mr. Ruffin gave a written statement?” Detective Dyson responded that Ruffin gave a written statement to Detective Muse.
THE DIRECT AND CROSS-EXAMINATION OF RUFFIN
After the government had introduced the involuntary, inadmissible, written statement into evidence and into testimony as part of its case-in-chief, Ruffin chose to testify on his own behalf, thus waiving his Fifth Amendment privilege. His counsel, [in an effort to undo the damage caused by the introduction of the written statement, and to make it appear either involuntary or “exculpatory,”] requested Ruffin to describe the circumstances under which it was taken and the facts it set forth. Ruf-fin admitted that he did give the statement, although he claimed he had given it to Detective Dyson and not Detective Muse. He also acknowledged that the officer who recorded it “said a couple of things pertaining to [my rights] but not exactly my rights.” When handed a copy of Government Exhibit 27, Ruffin conceded that “It is supposed to be the statement that I gave” and verified his signature at the bottom of the statement.
Ruffin was then requested to read out his entire written statement to the jury. While Ruffin did so, his counsel regularly intervened to ask him whether the statement’s portrayal of each successive event was true or false.
Ruffin disputed the time “0830” and said he had stated it as “eight thirty.” He claimed the statement was incorrect in saying that his mother was sitting in “her” car because she did not have a car or a driver’s license. Ruffin said that the correct version about his blocking Clifford Wilson’s punch was that “they hit me.” Ruffin denied that Wilson fell, tried to grab his feet, and push him down the steps; he said the correct version was that “he was kicking me and I was kicking him back.” Ruf-fin agreed that he started kicking to keep Wilson from pushing him down the steps. He denied the written statement’s account *719 that he hit Wilson on both sides of the face with a left-right combination; it should have been just that he hit Wilson “in the face.” In reference to the statement that Wilson fell down and tried to get back up, Ruffin said “that is not the phrase that I used”; he proffered instead that he mentioned Wilson as having “hit the wall.” Ruffin denied he admitted kicking Wilson with a full house and two straight down stomps, and denied also that he was a karate expert or had ever studied karate. He claimed having said he left Wilson “conscious,” not unconscious. In response to Detective Muse’s question as to Wilson’s condition, Ruffin denied doing a job on him; Ruffin said he referred to Wilson’s condition as “good.” When asked where his kicks had landed, Ruffin disputed having said around the forehead, mouth and nose, and claimed he had named only the “forehead.” Rather than a whole lot of blood, Ruffin said he calculated just “a little.” Ruffin did not say that he had known Wilson as long as he could remember, he said, but instead “about fourteen years or more.”
Contradicting the written statement, Ruffin denied saying he didn’t get along with Wilson (described in the statement as “just another one of them ‘herb-smoking Street Niggers’ ”) and insisted he had actually described Wilson as “a friend of the family and a friend of mines.”
Ruffin acknowledged his description of Wilson as an angel dust user. The statement also correctly recorded that he had ‘blood on his shoes. Ruffin contradicted the account of his attempt to wipe the blood off in his sister’s apartment before doing so in the basement: “I stated I wiped it off in the basement, not upstairs.” Rather than saying he had known Officer Shaw for eight to ten years, Ruffin testified, “I told them about — I guess eight years or more.” According to Ruffin, the statement falsely suggested that the word “presume” was in his vocabulary. Ruffin rejected the statement’s assertion that the bass player had intervened in his struggle with Wilson: “I stated that he came up the steps, called my name. That was all.” Ruffin told the jury he never answered the question as to whether Officer Shaw hit Wilson. The statement wrongly recorded Ruffin’s answer when Detective Muse asked him whether he was trying to kill Wilson: “I only stated that I was trying to defend myself”; Ruffin said he never added the part about “teaching him a lesson, you can’t keep going round mistreating people and expecting nothing to happen.” Finally, Ruffin denied having said he had “watched or taken karate.”
After Ruffin had read the written statement to the jury-interspersed with his testimony as to which portions were true and which were false — he was asked whether he had been harassed before giving the written statement to the police. Ruffin said that he had. Ruffin admitted that he had initialed the statement. He did not recall having been read his rights. According to Ruffin, Detective Muse told him at the time that the written statement would not be used against him. By then, his counsel’s examination concerning the inadmissible written statement, originally introduced as part of the government’s case-in-chief, had taken up fourteen pages of the transcript.
Ruffin was also cross-examined by counsel for his codefendant, Officer Shaw, who was in an adversarial role due to Ruffin’s testimony that Shaw beat the victim with a gun after Ruffin’s fight with Wilson had ended. Again, the written statement was frequently brought to the attention of the jury. Ruffin’s testimony concerning the death of Wilson was measured against his written statement. He was asked several further questions which required him to refer directly to the statement. This exchange occupied four pages of the transcript. The court then recessed because it was late in the day.
The following day, Ruffin was cross-examined by the prosecutor. He recounted once more his effort to locate Wilson in the building after leaving his sister’s apartment and described their confrontation at the top of the stairs. The prosecutor, in an suggestive attempt to prove that Ruffin had acted with the malice required to convict of second-degree murder, and not in
*720 self-defense or upon adequate provocation, drew from the previous day’s testimony, in which Ruffin had contradicted a critical admission in the involuntary, inadmissible, written statement:
THE PROSECUTOR: Now this, according to you, was an old family friend. You had no animosity whatever. Is that right?
RUFFIN: Yes, sir.
Q. And all you wanted to do was talk to him?
A. Yes, sir.
Q. You didn’t stop three or four steps away to say “Clifford, come on down!”?
A. No, sir. At the time he was running.
Q. He turned around. He stopped and turned around?
A. Yes, sir.
Q. You didn’t stop a few feet away from him and say “Clifford, come on downstairs!”?
A. At the time I started to make a statement and before I could make a statement that’s when he kicked me.
[[Image here]]
Q. You weren’t intending to fight at all?
A. Yes, sir.
Q. You were saying, “Hey, Cliff, come on downstairs and let’s talk about this!” That’s what you started to say?
A. Not exactly that.
Q. What exactly were you starting to say?
A. I was gonna ask him to come back down to talk with my sister and me to see what happened.
Q. You weren’t mad at him were you?
A. I was upset. I wouldn’t say I was exactly mad at him.
Q. You thought that this man had raped your sister.
A. At this time, yes, sir.
Q. But you were mad?
RUFFIN: [No response.]
THE PROSECUTOR: I didn’t hear the answer.
THE COURT: He hasn’t answered. [Emphasis added.]
Before Ruffin left the witness stand, the prosecutor quizzed him for a further eight pages concerning the written statement. The prosecutor attacked Ruffin’s credibility by focusing on the conflict in the testimony as to whether Ruffin had been subject to harassment by the police before giving the statement. The prosecutor then used the written statement again to impeach Ruf-fin’s testimony, from the previous day, that his responses had been falsely recorded by the police: “According to you, Detective Muse and Detective Dyson typed up the wrong names and the wrong times and everything else wrong with the statement?” Ruffin responded, “I believe some of the things were wrong, yes, sir.” The prosecutor proceeded to establish that Detectives Muse and Dyson had had no prior contact with Ruffin and no motive to lie. The exchange continued:
THE PROSECUTOR: And yet it is your testimony that Detective Dyson and Detective Muse are making this all up? Is that right?
RUFFIN: Only thing I can say is my statement is not correct.
Q. Did you read the statement before you signed it?
A. No, sir.
The prosecutor handed Ruffin the written statement, Government Exhibit 27, and continued:
Q. That is your statement that you gave, isn’t it?
A. I guess so. I didn’t see the statement.
Q. Well, let me point down to the bottom of the page — the bottom of the first page. That is your signature down there, isn’t it?
A. Yes, sir.
Q. Up at the top of the page where you — where it says that you have been advised of your rights, that you are not under arrest, and you are advised of several other rights, didn’t you — the initials are on there?
A. Not pertaining to that, no, sir.
Q. Your initials are right there next to that? The advising of rights section?
*721 A. It is next to it. But it don’t mean it is pertaining to that.
Q. You put your initials there?
A. Yes, sir.
Q. And you signed your name on the bottom?
A. Yes, sir.
[[Image here]]
Q. You did sign the third page, didn’t you?
A. Yes, sir.
Q. And your statement says that it was started at two thirty-nine in the afternoon, doesn’t it?
A. That’s what it stated.
Q. 1439 hours and it ended at three forty-eight?
A. Yes, sir.
Q. And they made that up too?
A. I would guess so.
Q. None of the stuff in here is accurate?
A. I would say ...
[Defense Counsel’s objection sustained.]
Q. So it is your testimony that Detective Dyson masquerading as Clarence Muse wrote down the parts in there that he wanted to write down and changed your words whenever he wanted?
A. I don’t recall seeing Detective Muse so I don’t know.
Q. You didn’t say that you didn’t like Clifford Wilson?
A. No, sir.
Q. So they are just making all that up?
RUFFIN: [No response.]
[Defense Counsel’s objection sustained.]
[Emphasis added.]
Just a few questions later, the prosecutor rested his cross-examination. [He had extensively impeached Ruffin’s credibility through the inadmissible written statement. Perhaps even more devastating, the conflict between Ruffin’s testimony and the inadmissible written statement undermined his insistence that Wilson was a friend. To the contrary, the prosecutor skillfully used the written statement to prove the malice which was a required ingredient of Ruffin’s second-degree murder conviction. In the hands of the prosecutor, the written statement effectively discredited Ruffin’s alternative defenses of self-defense and adequate provocation, both of which the government had the burden to disprove beyond a reasonable doubt.
On redirect, in order to rehabilitate Ruf-fin’s earlier testimony, his defense counsel was obliged to continue the focus on the written statement and the circumstances under which it was taken. That effort at rehabilitation] evidently failed to convince the jury.
THE PROSECUTOR’S CLOSING ARGUMENT TO THE JURY
Consistent with his strategy throughout the entire trial, the prosecutor relied heavily on the inadmissible written statement in his closing argument. He reminded the jury that in order to return a verdict of guilty to second-degree murder, as opposed to voluntary manslaughter, it must find that Ruffin had acted with malice. Malice, he observed, “doesn’t necessarily mean that Antone Ruffin when he went into the apartment building had the intent to kill Clifford Wilson. It doesn’t mean that he hated Clifford Wilson or that he felt hostility toward Clifford Wilson. It doesn’t necessarily mean those things. But those things can come into play.” (Emphasis added.) The prosecutor immediately thereafter discussed the government’s burden to prove that Ruffin “was not acting in the heat of passion caused by adequate provocation or excuse.”
“[W]e know from Antone Ruffin’s own statement, ” the prosecutor argued, what happened at the top of the stairs. “We know that Antone Ruffin knocked Clifford Wilson on his back and we know what was described in his own statement, with a left-right combination, that he kicked him with a roundhouse kick and straight down stomps to the head.” (Emphasis added.)
Summing up his argument, the prosecutor urged the jury to return a verdict of second-degree murder rather than voluntary manslaughter: “The reason that I would ask you to return second-degree murder rather than manslaughter is that Antone Ruffin has told the police in his statement that he did not like Clifford Wilson, that he didn’t like him....” *722 (Emphasis added.) Ruffin had time, the prosecutor pointed out, to cool down, because he had time to drive over to his sister’s apartment after hearing about the rape incident and to ask her what had happened. “Yet Antone Ruffin didn’t like Cliff Wilson. Maybe he thought that this was a good excuse to get back at Cliff Wilson or whatever_ That is why this is second-degree murder, ladies and gentlemen, and not manslaughter.” (Emphasis added.)
In response to the prosecutor’s closing argument, which relied entirely upon the inadmissible written statement to supply the essential element of malice, Ruffin’s defense counsel discussed [as he was compelled to] the written statement in his closing argument. He emphasized Ruffin’s claim that he acted in self-defense — a claim immediately followed in the written statement by the words “teaching him a lesson, you can’t keep going round mistreating people and expecting nothing to happen.”
THE JURY’S DELIBERATIONS
The following day, after receiving its instructions from the court, the jury retired to deliberate upon its verdict. It withdrew from the courtroom at 11:28 a.m. on March 22, 1983.
Along with their recollections of the trial, the jurors brought Ruffin’s involuntary, inadmissible, written statement, Government Exhibit 27, into the jury room with them.
At 5:12 p.m. the jury, not having arrived at a verdict, informed the court that it was ready to retire for the evening. It was excused. The jury returned to the jury room at 9:50 a.m. the next morning. At 11:16 a.m. on March 23, 1983, the jury returned to the courtroom with its verdict. The jury found Antone Ruffin guilty of the second-degree murder of Clifford Wilson.
[We know nothing of what took place during the seven hours and ten minutes that the twelve jurors spent alone with each other in the jury room.]
CONCLUSION
Ruffin’s involuntary, inadmissible, written statement, Government Exhibit 27, was a lethal weapon in the hands of the skilled prosecutor who tried this case. It was also an illegal one — forged at the expense of fundamental procedural safeguards guaranteed to Ruffin and to everyone else by the Fifth Amendment. The prosecutor deftly used that illegal weapon: (1) to destroy Ruffin’s credibility; (2) to prove to the jury that he acted with malice, a required ingredient of his second-degree murder conviction; and (3) to undercut Ruffin’s defenses that he had acted in self-defense or, alternatively, in the heat of passion upon adequate provocation caused by the news of his sister’s rape.
Arguably, Ruffin might never have taken the witness stand were it not for a perceived need to undo the damage done to his defenses by the introduction of the inadmissible written statement as part of the government’s case-in-chief.
I utterly reject the notion that harmless error doctrine may be used to measure the impact upon a trial of the introduction of an involuntary statement. However, even if such speculation were permitted, on the record I have just described the error was not harmless. This court cannot conclude, beyond a reasonable doubt, that the erroneous introduction of Ruffin’s involuntary written statement did not contribute to the verdict.
. 1 concur in the reversal of Ruffin’s mayhem conviction and the affirmance of codefendant Shaw’s accessory after the fact conviction.
. Apart from misciting Chapman , the majority relies upon one other Supreme Court authority, Milton v. Wainwright, 407 U.S. 371 , 92 S.Ct. 2174 , 33 L.Ed.2d 1 (1972), to support its conclusion that harmless error theory may be applied to the introduction of a coerced confession. Milton has little, if any, relevance to this case. That decision involved a confession challenged in a habeas corpus proceeding — a confession obtained prior to the Miranda decision outlining the Fifth Amendment requirements for custodial interrogation; the Milton confession was also characterized by the state courts as "voluntary” without contradiction by the United States Supreme Court.
. The involuntary, inadmissible, written confession is set forth in Appendix A to this dissent. The central role it played in the trial is summarized in Appendix B.
. If accepted, the self-defense claim would have required acquittal. On this issue, it is noteworthy that nobody, apart from Ruffin himself, witnessed the opening stages of Ruffin’s struggle with the victim.
. If accepted, the adequate provocation claim would have reduced Ruffin’s second-degree murder conviction to voluntary manslaughter. Fifteen years is the maximum term of imprisonment for voluntary manslaughter; Ruffin was sentenced to ten years to life for his second-degree murder conviction.
.The majority cryptically refers to "other evidence” of Ruffin’s attitude towards the victim; nowhere does it indicate what that evidence is. Majority opinion, ante at note 31.
. The authorities cited for this proposition, Hawthorne v. United States, 476 A.2d 164 , 168 n. 10 (D.C.1984), and Franey v. United States, 382 A.2d 1019 (D.C.1978), are not on point. In Franey , the defendant was prosecuted for burglary, and the prosecution had no direct evidence that he was present at the scene of the crime, only that he was found in an alley nearby with fruits of the crime. As part of his case, the defendant admitted that he had been at the scene but stated that he had a good reason for being there. We held that, in assessing the sufficiency of the evidence to sustain the conviction, the defendant’s admission could be taken into account. Hawthorne held the same. The settings of these cases are totally unrelated to the present one. Even if they were not, those defendants provided affirmative evidence of guilt, whereas Ruffin provided no affirmative evidence of voluntariness. The relevance of Hawthorne and Franey to this case is therefore difficult to discern.
. Even operating within the framework created by the majority, the government did not meet its burden to show consent. Ruffin testified that he accompanied the police to the station because he believed that a bench warrant had been or would otherwise be issued for his arrest. He stated that he received this information from his sister, who had spoken to someone at the police station. No rebuttal was ever offered to Ruffin’s testimony that the police had made reference to a bench warrant. The majority states that by testifying that Ruffin was not handcuffed, the two officers who picked him up — Brown and Williams — allow this court to find voluntariness: “[Ruffin’s] lying about handcuffs cast doubt on the very premise of his coercion testimony: that he had heard from police through his sister about an arrest warrant.” Majority opinion, ante at 690. But under Hawthorne and Franey , since there too the burden of proof lies on the government, this means that a defendant whose testimony is incredible could be convicted even though the record is barren of sufficient evidence that he or she has committed a crime!

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9646842. Public record. Not legal advice.