Green v. United States

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DISTRICT OF COLUMBIA COURT OF APPEALS

No. 19-CF-0546

SEAN TYLER GREEN, APPELLANT,

v.

UNITED STATES, APPELLEE.

Appeal from the Superior Court

of the District of Columbia

(2015-CF1-014494)

(Hon. Judith Bartnoff, Trial Judge)

(Argued December 5, 2023 Decided May 23, 2024)

Gregory M. Lipper for appellant.

Daniel J. Lenerz, Assistant United States Attorney, with whom Matthew M.

Graves, United States Attorney, and Chrisellen R. Kolb, John P. Mannarino, and

Michelle D. Jackson, Assistant United States Attorneys, were on the brief, for

appellee.

Before EASTERLY, MCLEESE, and SHANKER, * Associate Judges.

*

Associate Judge AliKhan was originally assigned to this case. Following her

appointment to the U.S. District Court for the District of Columbia, effective

December 12, 2023, Associate Judge Shanker has been assigned to take her place on

the division.

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MCLEESE, Associate Judge: Appellant Sean Tyler Green challenges his

convictions for first-degree murder and related offenses. We hold that Mr. Green’s

post-arrest statements were obtained in violation of the requirements of Miranda v.

Arizona, 384 U.S. 436 (1966). We therefore vacate Mr. Green’s convictions and

remand the case for further proceedings.

I. Factual and Procedural Background

A. Mr. Green’s Motion to Suppress

Before trial, Mr. Green moved to suppress evidence of videotaped statements

he made to the police after his arrest, arguing that the statements were taken in

violation of Miranda. The evidence at the hearing on the motion to suppress

included the following.

Detective Anthony Patterson questioned Mr. Green. After explaining the

charges to Mr. Green, Detective Patterson gave Mr. Green advice about Miranda

rights. Those rights were accurately stated in writing on a standard

police-department form (“PD-47”) that Detective Patterson provided to Mr. Green.

See generally, e.g., Henson v. United States, 563 A.2d 1096, 1097 (D.C. 1989)

(PD-47 is standard advice-of-rights form). Detective Patterson also orally advised

Mr. Green of his rights. Detective Patterson’s initial oral advice for the most part

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followed the wording of the written advice, with two important differences that are

italicized in the following quote:

You have the right to talk to a lawyer for advice before we

question you and to have [a lawyer] with you during

questioning. That does not happen here. You know, there

is not a lawyer out there. We’re not going to bring a

lawyer in here to talk to you. That happens when you get

down to court, okay? If you cannot afford a lawyer and

want one, a lawyer will be provided for you. That also

happens when you get to court. They’ll, you know -- they

have a court-appointed lawyer unless you have your

family -- if they want to pay for a lawyer, you can do that

as well. All right? If you want to answer questions now,

without a lawyer present, you 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, okay?

Detective Patterson then asked Mr. Green the first question on the PD-47:

Detective: Okay? Now, have you read, or had read to

you, the warning as to your rights?

Mr. Green: Was it this paper?

Detective: That’s what I just did.

Mr. Green: Uh-huh.

Detective: I read it to you, okay?

Mr. Green: I mean, you just gave me a whole lot all in

one.

Detective: Okay, all right. But this is -- I am referring to

your warning -- your rights.

Mr. Green checked a box on the PD-47 to indicate that he had read his rights

or had them read to him. Detective Patterson then asked Mr. Green the second and

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third questions on the PD-47: whether Mr. Green understood his rights and whether

he wished to answer any questions. Mr. Green eventually replied in the affirmative

to both questions, after some back-and-forth in which Mr. Green expressed

confusion and Detective Patterson further explained the reasons for Mr. Green’s

arrest.

Another detective who was present, Detective Garner, interjected the

following:

You can read it over. Because you can answer questions

and you still have -- it says right there -- that you still have

to stop answering any questions until you talk to a lawyer.

So, if you want to talk to us and then, eventually, you just

say, “Okay, I don’t want to talk anymore”, that’s what

that’s saying.

Detective Patterson also said. “At any point -- we’re talking to you -- at any point

during our conversation about this, if you decide, ‘Hey, Detective Patterson,

Detective Garner, I don’t want to talk about it anymore’, you have that right.”

Finally, Detective Patterson asked Mr. Green the last question on the PD-47,

adding the material italicized in the following quote:

And, the last question is, are you willing to answer

questions without having an attorney present? And, again,

we don’t -- there’s not going to -- we don’t bring attorneys

in here. So, that’s -- you aren’t going to have an attorney

present anyway.

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Mr. Green waived his Miranda rights and so indicated in writing on the

PD-47.

The trial judge denied the motion to suppress, ruling that Mr. Green had

knowingly and voluntarily waived his Miranda rights.

B. The Evidence at Trial

The legal issue that we decide in this appeal does not turn on the evidence

introduced at trial, so we only briefly summarize that evidence.

Derrick Black was shot and killed in July 2015. A witness saw two

individuals running across a street, pursued by a man who fired several shots. One

of the men being chased fell in the middle of the street. The shooter ran up to that

man, who was Mr. Black, shot him twice more as he lay on the ground, and then ran

away. A police surveillance camera positioned about a block away recorded the

shooting, and an enhanced version of the recording was shown at trial.

Police recovered from the scene a cellphone, a magazine containing several

rounds of ammunition, and several cartridge casings. A search revealed that the

phone had been set up with an email address and phone number associated with

Mr. Green. Additionally, DNA on the magazine matched Mr. Green’s DNA.

Mr. Green was arrested several months after the shooting and was questioned

by the police. During his interview, Mr. Green made several false exculpatory

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statements, including that he had been in drug treatment from July 2015 to

September 2015 and that his phone had been stolen before the shooting. Mr. Green

at one point admitted to committing the shooting, but he claimed that he did so

because someone had threatened to kill him unless he killed Mr. Black. Eventually,

Mr. Green said that he did not recall the shooting but that he believed that another

person had committed the shooting.

II. Analysis

The focus of the briefing in this case, and of the trial court’s ruling, was on

whether Mr. Green’s waiver of his Miranda rights was knowing, intelligent, and

voluntary. At oral argument, however, much of the discussion focused on a related

but antecedent question: whether the advice of rights given to Mr. Green was legally

adequate. See generally, e.g., Miranda, 384 U.S. at 467 (“The accused must be

adequately and effectively advised of his [or her] rights . . . .”); id. at 470 (“No

effective waiver of the right to counsel during interrogation can be recognized unless

specifically made after the warnings we here delineate have been given.”).

The brief of the United States acknowledges the requirement that adequate

advice of rights must be provided and discusses cases interpreting the requirement.

The United States did not explicitly contend at oral argument that the question

whether that requirement was met in this case was not properly before this court for

decision. Nor did the United States request an opportunity to file a supplemental

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brief more fully addressing the question. Moreover, because the advice of rights in

this case was videotaped, there is no factual dispute as to what advice the police gave

Mr. Green. With the exception of one factual point that we discuss infra, whether

the advice of rights provided in this case was adequate is therefore a pure question

of law that we can decide de novo. See, e.g., United States v. Crumpton, 824 F.3d

593, 604-05 (6th Cir. 2016) (“[T]he question before us is a legal one: Given the

undisputed words that were said and the undisputed recording of them, were the

[warnings] legally sufficient?”) (citing cases). Under the circumstances, and seeing

no procedural unfairness, we exercise our discretion to consider the issue. See

generally, e.g., Outlaw v. United States, 632 A.2d 408, 410 n.7 (D.C. 1993) (“[A]

court may consider an issue antecedent to and ultimately dispositive of the dispute

before it, even an issue the parties fail to identify and brief.”) (ellipsis and internal

quotation marks omitted).

The Supreme Court held in Miranda that “statements made by an accused

while in police custody are inadmissible unless the police[,] prior to questioning,

warn [the accused] that [the accused] has the right to the presence of an attorney.”

Di Giovanni v. United States, 810 A.2d 887, 891 (D.C. 2002) (ellipses and internal

quotation marks omitted). That warning, like the other warnings required by

Miranda, is necessary because “interrogation in certain custodial circumstances is

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inherently coercive.” New York v. Quarles, 467 U.S. 649, 654 (1984) (footnote

omitted).

Miranda warnings need not be provided in the precise words used by the

Supreme Court in Miranda in order to be valid. See, e.g., Henson v. United States,

563 A.2d 1096, 1097 (D.C. 1989) (Supreme Court “has never insisted that the

warnings be given in the exact words of [Miranda]”). Nevertheless, in cases

reaching back nearly fifty years, this court has emphasized the risk created when

officers depart from the wording approved by the Supreme Court in Miranda. See

id. (“We take this occasion, however, to repeat an admonition expressed by us over

a decade ago in reviewing another case in which an officer expanded upon the

language of the standard Miranda warning. We noted that ‘the recurrence of this

question in the decisions, however, points up the unnecessary litigation that is

created by embellishments on the essentials of Miranda.’”) (quoting United States

v. Rawls, 322 A.2d 903, 907 n.12 (D.C. 1974)) (brackets omitted).

In considering whether the advice of rights in this case was legally adequate,

we must examine the advice as “a totality,” to determine whether the advice

“reasonably convey[ed the] rights as required by Miranda.” Duckworth v. Eagan,

492 U.S. 195, 203, 205 (1989) (internal quotation marks omitted). We hold that the

advice of rights in this case, considered as a totality, did not reasonably convey to

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Mr. Green that he had a right to the assistance of a lawyer before and during

interrogation.

Detective Patterson’s initial advice about the right to the assistance of a lawyer

presents a mixed picture. On one hand, in the language underlined in the quote

below, Detective Patterson clearly stated that Mr. Green had a right to talk to a

lawyer before questioning, to have a lawyer present during questioning, and to stop

answering at any time until he talked to a lawyer. On the other hand, in the language

italicized in the quote below, Detective Patterson made clear that Mr. Green was not

going to actually have access to a lawyer until Mr. Green went to court.

You have the right to talk to a lawyer for advice before we

question you and to have [a lawyer] with you during

questioning. That does not happen here. You know, there

is not a lawyer out there. We’re not going to bring a

lawyer in here to talk to you. That happens when you get

down to court, okay? If you cannot afford a lawyer and

want one, a lawyer will be provided for you. That also

happens when you get to court. They’ll, you know -- they

have a court-appointed lawyer unless you have your

family -- if they want to pay for a lawyer, you can do that

as well. All right? If you want to answer questions now,

without a lawyer present, you 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, okay?

The Supreme Court has made clear that it is lawful under Miranda for the

police to decline to provide a lawyer to a suspect before and during interrogation.

Eagan, 492 U.S. at 204 (“Miranda does not require that attorneys be producible on

call . . . . If the police cannot provide appointed counsel, Miranda requires only that

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the police not question a suspect unless [the suspect] waives [the] right to counsel.”).

Thus, Detective Patterson’s statements that a lawyer would not be provided to

Mr. Green were not themselves contrary to the requirements of Miranda. Nor were

those statements logically inconsistent with the right to counsel under Miranda,

because a suspect who wants to talk to a lawyer before questioning, or to have a

lawyer present during question, can decline to answer questions if the police are not

willing to accommodate the suspect’s desire for the assistance of a lawyer.

Nevertheless, the Supreme Court has acknowledged the concern that can arise

when “the reference to the right to appointed counsel [is] linked to a future point in

time after the police interrogation.” Eagan, 492 U.S. at 204 (brackets and internal

quotation marks omitted). In some circumstances, such linkage can cause the advice

of rights to fail to adequately “apprise the accused of [the] right to have an attorney

present if [the accused] chose to answer questions.” Id. at 205; see also Rawls, 322

A.2d at 907 n.12 (noting concern that statement that attorney would not be provided

until suspect went to court could “be . . . used in a manner which may well result in

confusion on the part of suspects as to their Miranda rights”). That is so because a

suspect who wants the assistance of a lawyer but is being denied such assistance

might not realize that the correct way to respond is to refuse to answer questions

unless and until a lawyer is provided. Unless that point is made explicit, such a

suspect might instead conclude that the right to counsel is simply not being honored.

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If the passage just quoted were the only relevant advice of rights in this case,

the outcome of this case would arguably be controlled by the Supreme Court’s

decision in Eagan. In Eagan, the advice of rights included the following, with the

disputed language italicized:

You have a right to talk to a lawyer for advice before we

ask you any questions, and to have [a lawyer] with you

during questioning. . . . We have no way of giving you a

lawyer, but one will be appointed for you, if you wish, if

and when you go to court. If you wish to answer questions

now without a lawyer present, you have the right to stop

answering questions at any time. You also have the right

to stop answering at any time until you’ve talked to a

lawyer.

492 U. S. at 198.

Although the advice of rights in Eagan included one statement that tied the

right to counsel to a future point after interrogation, the Supreme Court held that the

advice of rights as a whole was adequate, because other statements in the advice of

rights adequately clarified that Mr. Eagan had a right to counsel before and during

questioning. Eagan, 492 U.S. at 200-05. The initial advice from Detective Patterson

quoted above seems relatively comparable to the passage just quoted from Eagan.

We also note that in this case Mr. Green signed the PD-47, which explicitly stated

that Mr. Green had the right to talk to a lawyer before questioning, to have a lawyer

present at questioning, and to stop questioning at any time to talk with a lawyer.

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This case differs from Eagan, however, because of several additional

problematic circumstances. First, after orally advising Mr. Green as described

above, Detective Patterson asked if Mr. Green had read, or had read to him, the

warning as to his rights. When Mr. Green asked, “Was it this paper?,” referring to

the PD-47, Detective Patterson indicated that he had just read the PD-47 to

Mr. Green. That was imprecise at best, because in fact Detective Patterson had

provided Mr. Green with additional oral advice that was not reflected on the PD-47.

Moreover, it does not appear from the videotape that Mr. Green ever actually read

the advice of rights on the PD-47, as opposed to relying on Detective Patterson’s

oral advice of rights. For these reasons, we do not view the written advice of rights

as providing useful clarification of Mr. Green’s rights.

Second, during the advice of rights, Mr. Green repeatedly indicated his

confusion. When asked whether he had read the warnings or had them read to him,

Mr. Green said, “you just gave me a whole lot all in one.” When asked whether he

understood his rights and wanted to answer questions, Mr. Green said, “I mean, I got

some questions I would like to ask. I mean, I’m so . . . confused right now.” When

asked again whether he wanted to answer questions, Mr. Green said, “I’m just

confused about -- I mean, I’m sorry. I heard what you said but it’s just, that’s a lot

to take in.”

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We recognize that the trial court found as a matter of fact that Mr. Green’s

expressions of confusion related to the charges and evidence against Mr. Green

rather than to the advice of rights. After reviewing the record, including the video

recording of Mr. Green’s interrogation, however, we conclude that this factual

finding was clearly erroneous. See generally, e.g., Zanders v. United States, 75 A.3d

244, 247 (D.C. 2013) (court will uphold trial court’s factual findings unless those

findings are clearly erroneous). It is true that Detective Patterson testified that he

understood Mr. Green’s expressions of confusion to relate to the charges and

evidence against Mr. Green. With respect to the three expressions of confusion just

described, however, we think that Mr. Green was clearly expressing confusion at

least in part about the advice of rights. That was what was being discussed at the

time. Moreover, during the interview Detective Patterson clearly interpreted these

expressions of confusion to be about the advice of rights, because Detective

Patterson responded each time by discussing the advice of rights. In determining

whether Mr. Green was adequately advised of his rights, we therefore take into

account that Mr. Green repeatedly expressed confusion to Detective Patterson. See

Doody v. Ryan, 649 F.3d 986, 1004 (9th Cir. 2011) (holding Miranda warnings

inadequate because, among other things, “[d]espite . . . [defendant’s] subsequently

conveyed confusion . . . [the detective] ignored [defendant’s] query[] and moved on

to the next item on his printed list”); cf., e.g., Di Giovanni, 810 A.2d at 894 (in

assessing whether police officer’s “embellishments” of advice of Miranda rights

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“vitiated the validity” of suspect’s waiver of rights, court states, “Here, we are

presented with an appellant who was clearly having trouble understanding [] his

rights[] and was therefore completely reliant on Sergeant Cortright’s explanations

and embellishments.”).

Third, immediately after Mr. Green’s third expression of confusion, Detective

Garner gave further oral advice that was confusing and inaccurate, saying, “[I]t says

right there -- that you still have to stop answering any questions until you talk to a

lawyer. So, if you want to talk to us and then, eventually, you just say, ‘Okay, I

don’t want to talk anymore’, that’s what that’s saying.”

Fourth, when discussing the last question on the PD-47—whether Mr. Green

was willing to answer questions without having an attorney present—Detective

Patterson told Mr. Green that “[W]e don’t bring attorneys in here. So . . . you aren’t

going to have an attorney present anyway.” That comment was not qualified in any

way, and Detective Patterson did not explain to Mr. Green that if Mr. Green did not

wish to answer questions without a lawyer, the police would honor that preference

and would not question Mr. Green in the absence of a lawyer. Rather, Detective

Patterson’s final comment would naturally be understood to indicate that there

would be no point to Mr. Green’s invoking rather than waiving his right to assistance

of counsel.

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We view this case as quite different from Eagan, in which there was a single

comment that tied the right to counsel to a future point after interrogation, but other

statements in the advice of rights both before and after that comment adequately

clarified that Mr. Eagan had a right to counsel before and during questioning. Eagan,

492 U.S. at 200-05. Rather, we view this case as comparable to Robinson v. United

States, 142 A.3d 565 (D.C. 2016), which also involved Detective Patterson. In

Robinson, Detective Patterson read a suspect the Miranda warnings but added a

comment that “we don’t provide you a lawyer here.” Id. at 567. Relying on Eagan,

we held that this comment by itself did not render the advice of rights legally

inadequate. Id. at 569-70. We nevertheless held that Mr. Robinson’s statements

were not lawfully obtained under Miranda. Our holding rested on the fact that

Detective Patterson then read three of the four questions on the PD-47 form, but

intentionally omitted the fourth question—“Are you willing to answer any questions

without having an attorney present?” Id. at 570. Detective Patterson testified as to

his reason for omitting the fourth question: “I’d already told [Mr. Robinson] that he

was not going to have a lawyer present during questioning. Once he agreed to talk

to me I didn’t see any point in asking him if he wanted to talk to me without a lawyer

present.” Id. at 571. We held that Detective Patterson’s failure to ask Mr. Robinson

whether Mr. Robinson was willing to answer questions without an attorney

“produce[d] the obvious concern that [Mr.] Robinson did not intentionally abandon

his right to have counsel present during questioning.” Id.

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This case obviously differs from Robinson, because in this case Detective

Patterson did ask Mr. Green whether he was willing to answer questions without

having an attorney present. In our view, however, the comments that Detective

Patterson interjected right before Mr. Green answered that question essentially

informed Mr. Green that there was no point to invoking the right to counsel, because

counsel would not be provided.

For the foregoing reasons, we hold that Mr. Green was not adequately advised

of his Miranda rights and that evidence of Mr. Green’s statements therefore should

not have been admitted into evidence at trial. The United States acknowledges that

it cannot establish that the admission of Mr. Green’s statement into evidence was

harmless. We agree, and we therefore vacate Mr. Green’s convictions and remand

for further proceedings.

Finally, we note that Mr. Green also challenges the jury instruction on the

elements of the offense of unlawful possession of a firearm. Mr. Green

acknowledges that he did not raise that issue in the trial court, however, and he relies

on a case decided after trial in this case. Rehaif v. United States, 139 S. Ct. 2191

(2019). Because we are vacating all of Mr. Green’s convictions on a different

ground, we need not consider Mr. Green’s newly raised challenge to the jury

instruction. Rather, we leave that issue to be considered in the first instance by the

trial court on remand in the event of a retrial.

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In sum, we vacate the judgment of the Superior Court and remand the case for

further proceedings.

So ordered.