Petition — C. P. v. District of Columbia

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

RECEIVED

ats JUL 2 8 1989

OFFICE OF THE CLERK

SUPREME COURT, U.S.

Petitioner

ECEIVED & INSPECTED

as

th

SUPREME COURT, U.S. POLICE

bie care LEY, .:

wane {Luc Piaae ane

DISTRICT OF COLUMBIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA

MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

The petitioner, C.P., respectfully moves pursuant to Rule

46(1) of the Rules of this Court for leave to file the attached

petition for writ of certiorari without prepayment of costs and

to proceed in forma pauperis. As grounds for this request,

petitioner asserts:

i. Petitioner is filing this 28th day of July, 1980, a

petition for writ of certiorari to review the judgment and

opinion of the District of Columbia Court of Appeals, which

affirmed his adjudication of guilt in the Family Division,

Juvenile Branch of the Superior Court of the District of Columbia.'

a3 Counsel was appointed to tenbemienk the petitioner in

both the Superior Court and the Court of Appeals under the

Dsitrict of Columbia Criminal Justice Act, 11 D.C. Code § 2601

as Because of his poverty, petitioner is unable to pay

for the costs of this case and is unable to give security for

the same.

4. The petition that is attached hereto seeks review of

the decision of the District of Columbia Court of Appeals that

affirmed the trial court's denial of his motion to suppress

a confession that, in his view, was obtained in violation of

the requirements of Miranda v. Arizona, 384 U.S. 436 (1966).

WHEREFORE, for these reasons, petitioner respectfully

requests leave to proceed in forma pauperis,

Respectfully submitted,

VILLIAM

Public Defengér Service

451 Indiana Avenue, N.W.

Washington, D.C. 20001

628-1200

—_

Counsel for Petitioner

July 28,

JUL 23 1980

IN THE

SUPREME COURT OF ‘THE UNITED STATES--- 222 227» SLCRi

ee a eee

October Term, 1980

CsP se ’

Petitioner

DISTRICT OF COLUMBIA,

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

SILAS J. WASSERSTROM

WILLIAM J. MERTENS

Public Defender Service for the

District of Columbia

451 Indiana Avenue, N.W.

Washington, D.C. 20001

202/628-1200

1980

IN THE

SUPREME COURT OF T!E UNITED STATES

October Term, 1980

No.

C.P.,

Petitioner

DISTRICT OF COLUMBIA, —

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

QUESTIONS PRESENTED

as Whether the police violated the thirteen-year-old

petitioner's Fifth Amendment rights when, after he invoked his

right to remain silent and his right to counsel, they neverthe-

less continued to speak to him by informing him that his com-

panions all placed the blame on him for the offense for which he

had been arrested, and when they arranged a confrontation be-

tween petitioner and his mother, whom they had told to urge

petitioner to talk.

2. Whether petitioner validly waived his privilege

against self-incrimination when the only evidence of that waiver

was that sometime after he asserted his right to remain silent

and to an attorney, he nonetheless confessed at the behest of

his mother, who had been summoned by the police station and

urged by them to encourage her son to confess.

a i

cL 2 i 5

INDFX

Page

Questions Presented eenereee eee eee eoeeeeeenreneeeeee ee éee eee & i

Citations eeeeeweeeeeveeeeeeeeee @ *eeeenree eoeeeweeteeneeeeneseenee © iii

Opinion Below Se ae a ee eee ee Oe ee 1

Jurisdiction .acccccccsccecsccecsss a erry eee ee ae

Constitutional Provision Involved ..ceeeeeaeeerererevecs 2

Statement Of The Case .....eee- MN. gen beens a

Reasons for Granting the Petition ......++++- eeowsevcece

i. The Holding Of The Court Of Appeals That

Officer Underwood's Conduct Did Not

Constitute Custodial Interrogation Squarely

Conflicts With This Court's Recent Decision

In Rhode Island v. Innis, 100 S.Ct. 1682

CLOGO! op cd bb evecvansseucecas ere errr ere tae

2. Petitioner Did Not Knowingly And Intelligently

Waive His Right To Remain Silent And His Right

To An Attorney Before He Confessed ..-+e-+eeeee 8

CONCLUSION ..-.-«-- ee ore: ie ee wk Chace ee owns ooede 11

Appendix oad & 2 Be oS &.O56.6 822.9. 89.5.9 9 9 6o¢e268 6086 8 6 6.90 09 8 2 9 eee5wrveneeneee ee

Opinion of the Court of AppealS ...-.-++e+-- App. A

Order of the Court of Appeals

Denying Rehearing en banc ..eeeeeeeeees App. B

‘+ sf

CITATIONS

CASES: Page

Ashcraft v. Tennessee, 322 U.S. 143 (1944) wrceccocvevecvceceveceveess 7

Bram Vv. United States, 168 Ut 532 (1897) eereeee eee reer eee eee ere eee 7

Brewer Vv. Williams, 430 U.S. 387 (1977) eevee reerreer ewer er eer eee eeeee 9,10

Escobedo Vv. Illinois, 378 U.S. 478 (1964) Creer eee tera mere eer eeereees 7

Fare Vv. Michael Cae 99 Ss. Cee 2560 (1979) ereeevreew eer er evrererereeeeeeerre 6,9

Galleges Vv. Colorado, 370 G.Ss. 49 (1963) eorvreeer eer er aeeerereeerreereer er eeee 9

In the Matter of R.A.H., 314 A.2d 133 Oz. hake App. 1974) eeeeveaeveeeere 6

In re Gault, 387 U.S, l (1967) @eeeeeneve? eererereeaerereer ewe ewer eee wrer eer eer ee ee 10

Michigan Vv. Mosely, 423 U.S. 96 (1975) cere eee ewer ere eee eee ee eee eee 6,9

Miranda v. Arizona, 384 U.S. 436 (1966) wecocvcceecvcveseees 3,4,6,7,8,10

North Carolina v. Butler, 99 S. Ct. 1755 (1979) ...... acdeensnetenes. SE

Rhode Island v. Innis, 100 S. Ct. 1682 (1980) ....eeecevacvee 5,6,7,8,9,10

Tague v. Louisiana, 100 S. Ct. 652 (1980) ....ccceceecceccccccecccces 10

MISCELLANEOUS :

Kamisar, Brewer v. Williams, Massiah, and Miranda: What is

"Interrogation"? When Does It Matter?, 67 Seo. L.J. 1 (1978) ... 7

16 D.C. Code §§ 2318 and 2324 (a) (1) ccccccccccccccccscccsccccess coven 2

ae es Cee Se POGe SMe See sete se eccedesecceve obese beetceeekouneeaus 3

2 U.B.C. SB BOOZ) and LAS73) cccccccccescs esueeenen seenhewhnem 2

- iii -

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1980

No.

C.P.,

Petitioner

DISTRICT OF COLUMBIA, ~

Respondent

PETITION FOR A WRIT OF CERTIORARI TO THE

DISTRICT OF COLUMBIA COURT OF APPEALS

—

The petitioner, C.P., respectfully prays that a writ of

certiorari issue to review the judament and opinion of the

District of Columbia Court of Appeals entered in this proceeding

on February 15, 1980.

OPINION BELOW

The opinion of the Court of Appeals is reported at 411 A.2d

643, and is reproduced, infra. (App. A, infra, la - 27a). Tne

Superior Court of the District of Columbia entered no opinion.

JURISDICTION

The judgment of the Court of Appeals was entered on

February 15, 1980. The petitioner's petition for rehearing and

suggestion for rehearing en bane was denied on April 28, 1980,

with three judges of the Court of Appeais voting to grant re~

hearing. The jurisdiction of this Court is invoked urder 248

U.S.C. §1257(3). 1/

CONSTITUTIONAL PROVISION INVOLVED

United States Constitution, Amendment V:

No person .. . shall be compelled in any criminal case to

be a witness against himself. ..- -

Under 16 D.C. Code §2318, adjudications of guilt in juven-

ile delinquency proceedings in the Superior Court of the

District of Columbia are deemed not to constitute convic-

tions for crimes. In other respects, such proceedings are

also deemed civil. F.g., 16 D.C. Code §2324(a)(1). The

time for filing a petition for certiorari thus seems to be

that set in 28 U.S.C. §2101(c).

=

STATEMENT OF THE CASE

Petitioner was found guilty in the Juvenile Branch of the

Family Division of the Superior Court of the District of Col-

umbia of attempted robbery while armed in violation of 22 D.C.

Code §§2902, 3202. (Case Number J-1822-77). The evidence a-

gainst him included his confession on the night of his arrest,

which he had unsuccessfully moved to suppress on constitutional

grounds. He appealed to the District of Columbia Court of

Appeals, but a divided panel of that court held that the police

had not violated the dictates of Miranda v. Arizona, 384 U.S,

436 (1966) in obtaining the confession. His petition for re-

hearing was denied on April 28, 1980, with three judges voting

to grant it.

At about 10:45 on the night of April 29, 1977, Officer

Spooner Underwood of the Metropolitan Police of the District of

Columbia arrested C.P. and three other juveniles for attempted

robbery. (Tr. of 9/22/77 at 14). 2/ According to Underwood's

testimony at a pre-trial hearing on petitioner's motion to sup-

press his confession, C.P. was taken first to a police substa-

tion and then to the robbery squad office, where he arrived at

about midnight. At 2:24 on the morning of April 30, another

policeman gave petitioner the so-called Miranda warnings. Pe-

titioner, in response, asserted on a card that was provided him

that he did not want to answer questions and that he wanted an

12 / Petitioner's juvenile court trial commenced on Friday,

September 22, 1977. The first order of business was a

hearing on his motion to suppvress’*his confession. The

trial concluded on Monday, September 25, 1977, with the

court adjudicating him guilty. A two-volume transcript of

these proceedings is in the record on appeal.

llat torney present. (Tr. of 9/22/77 at 5, 18). Nonetheless,

about a half an hour later, Underwood ushered petitioner and his

mother, who had been summoned to the robbery squad, into a small

interview room. The officer closed the door behind the three of

them. According to Underwood (Tr. of 9/22/77 at 8):

I [then] stated to Mr. P. and his mother

that I spoke with the other responcents

and they had confessed to the dealings in

the crime, and that they had put most of

the weight on Mr. P., pointing a finger

saying he was more invelved in the crime

than the other two. [sic].

The officer then orally readvised petitioner of his Miranda

rights, although he did not again ask him whether he wanted to

waive his rights, and watched and listened as Setitiones's

mother pressed him to confess, which he soon did.

Petitioner's mother also testified at the suppression hear-

ing. She said that when she arrived at the robbery squad, she

was allowed to sit with her son. She testified that an officer

was asking petitioner to talk about the offense, and that she

assisted him in reading a card with which he was having trouble.

She helped him read certain words that he did not recognize, but

said that she could not help him understand the card's signifi-

cance; neither she nor her 13-year-old son had been in such a

situation before. (Tr. 9/22/77 at 24, 30, 33-35). One officer

told her that petitioner was the only one of the arrested ju-

veniles who would not talk, and she was told that she "should

get [petitioner] to tell what happened because he was in serious

trouble." (Tr. of 9/22/77 at 28-29, 31). So she later urged

him to tell the police the truth. At first, he resisted. He

repeatedly said that he did not want to say anything. But she

“just kept repeating to him to tell the truth, tell the man the

truth, tell what happened," and petitioner then finally con-

fessed to Underwood. (Tr. of 9/22/77 at 32-33). 3/

REASONS FOR GRANTING THE PSTLTION

l. THE HOLDING OF THE COURT OF APPEALS THAT OFFICER

UNDERWOOD'S CONDUCT DID NOT CONSTITUTE CUSTODIAL

INTERROGATION SQUARELY CONFLICTS WITH THIS COURT'S

RECENT DECISION IN RHODE ISLAND V. INNIS, 100 S.CT.

1682 (1980).

After petitioner requested counsel, and informed the po-

lice that he did not want to be questioned, the police, by

their subsequent conduct, nevertheless succeeded in extracting

a confession from him. Officer Underwood told him that each

of the other juveniles arrested with him had confessed and

had, moreover, attempted to place most of the blame on hin.

The officer also isolated petitioner and his mother with him-

self in a robbery squad interview room. By the mother's ac-

count, she had been told that she should persuade petitioner

to break his silence, for he was in a serious predicament. So

she pressured him, and he did finally speak the words that

would later be used aqainst him to secure his conviction at

eriai.

3/ The majority and the dissenting opinions in the Court of

; Appeals differ on the weight that should now be accorded

the testimony of C.P.'s mother. Significantly, govern-

ment counsel, in arqument before the trial court, never

sought to rebut the mother's testimony. Indeed, he seems

to have conceded its accuracy and sought only to harmo-

nize it with what his own witness, Officer Underwood, had

said. (Tr. of 9/22/77, at 38, 40):

Now, testimony has been, and I believe it

essentially has been consistent between the

two witnesses, that what happened was that

perhaps it would be better if he said

something if she could talk to him. . .

What the officer said to the mother was it

would be better if you got your son to tell

the truth. He would be better off. His

mother in turn told him that she wanted him

to tell the truth.

And the trial court never expressly -- nor, in petition-

er's view, even implicitly -- rejected the mother's testi-

mony.

|

If what the police did amounted to interrogation, then his

confession should surely have been suppressed. 4/ Por in

Miranda v. Arizona, supra, this Court established safeguards

that provided, among other things,

that if the accused indicates in any

manner that he wishes to remain silent or

to consult an attorney, interrogation

must cease, and any statement obtained

from him during interrogation thereafter

may not be admitted against him at his

trial.

Fare v. Michael C., 99 S.Ct. 2560, 2563 (1979). Neither peti-

tioner's "right to cut off questioning” nor his right to counsel

had been "scrupulously honored." See Michigan v. Mosely 423

U.S. 96, 104 (1975).

The Court of Appeals' decision therefore rests on the con-

clusion that this conduct was not interrogation within the mean-

ing of Miranda. This Court's recent decision in Rhode Island v.

Innis, 100 S.Ct. 1682 (1980), however, made it clear, if it was

not clear before, that such conduct may be interrogation in

fact, even if it is not police questioning in form. The Court

in that case said, in explication of Miranda, that (id. at

1689):

4/ Although this Court in Fare v. Michael C., 99 S.Ct. 2560,

2567, n.4 (1979), noted that it had never expressly held

that persons subject to prosecution in juvenile court are

entitled to Miranda protections, the District of Columbia

has never challenged petitioner's right to those protec~

tions, and the Court of Appeals has held that such pro-

tections do apply. E.g., In the Matter of R.A.H., 314 A.2d

133 (D.C. Ct. App. 1974).

Furthermore, in Michigan v. Mosley, 423 U.S. 96 (1975), the

Court noted that the Miranda decision indicated that inter-

rogation must cease when a suspect Says that he does not

want to be questioned further. But Miranda was silent on

the question of when, and under what, conditions, question-

ing might then resume. The Mosley Court contrasted this

with what Miranda said must happen if a suspect asks to

consult with an attorney: all questioning must then cease

until this request is honored. See id. at 100 & n.7.

Petitioner here made a request to speak with a lawyer; the

police never honored it; and instead, in petitioner's view,

they impermissibly continued interroga:ion after only a

very short break.

[T]he term "interrogation" under Miranda

refers not only to express questioning,

but also to any words or actions on the

part of the police (other than those

normally attendant to arrest and cuscody)

that the police should know are

reasonably likely to elicit an incrim-

inating response by the suspect. (Foot-

notes omitted)

And the Court “added (id. at 1690 n.8):

Any knowledge the police may have had

concerning the unusual susceptibility of

a defendant to a particular form of

persuasion might be an important factor

in determining whether the police should

have known that their words or actions

were reasonably likely to elicit an

incriminating response from the suspect.

Surely Officer Underwood knew when he informed petitioner,

a naive juvenile, in the isolation of a robbery squad interview

room at 2:30 in the morning, that his cohorts had confessed and

placed principal blame on him that this statement was likely to

elicit an admission. In such a context, repeating the con-

panions accusations surely cried out for a response. Indeed,

the positing of guilt was long recognized as an effective

interrogation technique, even well before Miranda. See, €.9.,

scobedo v. Illinois, 378 U.S. 478, 483 (1964); Ashcraft v.

Tennessee, 322 U.S. 143, 151 (1944); Bram v. United States, 168

U.S. 532, 562 (1897); see generally Kamisar, Brewer v. Williams,

Massiah, and Miranda: What is “Interrogation"? When Does It

Matter?, 67 Geo. L. J. 1, 14-24 (1978). And enlisting the

ssistance of petitioner's mother, even if she did not thereby

ecome an agent of the police, of course could be expected to

licit a confession. A more effective means to break the re-

istance of a recalcitrant l3-year-ol@ suspect short of physical

violence, can hardly be imagined. |

But the majority opinion of the Court of Appeals, which was

poanes before the Innis decision, never addressed the question

bf whether what Underwood and the other officers did was reason-

pbly likely to elicit a confession, in light of petitioner's

= 9 «

—aeee «+= oo

young age and inexperience. Instead, the Court declined to

criticize what Underwood had done on the grounds that “there was

nothing improper in the officer's being present while mother and

son were together;" that the officer's hope that "a confession

would be forthcoming", if such a hope there was, was insuffi-

cient to taint the confession; and that Underwood "did not seek

to conceal his presence" and again gave Miranda warnings (albeit

without again g‘: ing petitioner the opportunity to assert his

right to remain silent and to have an attorney's assistance).

Under the standard of Innis, however, these factors are altogeth-

er insufficient. Indeed, they are for the most part irrelevant.

Petitioner therefore respectfully requests that certiorari

be granted because, when judged by the standard set forth in

Innis, what occurred here was clearly custodial interrogation,

and this Court should so hold. In the alternative, petitioner

suggests that certiorari be granted, the judgment of the Court

of Appeals vacated, and the case remanded to that court for

reconsideration in light of Rhode Island v. Innis, supra, for

the court below has not decided this case under the correct

standard.

26 PETITIONER DID NOT KNOWINGLY AND INTELLIGENTLY WAIVE

HIS RIGHT TO REMAIN SILENT AND HIS RIGHT TO AN

ATTORNEY BEFORE HE CONFESSED

At all events, petitioner respectfully submits that this

Court should review the Court of Appeals’ conclusion that pe-

titioner made a valid waiver of his rights when he admitted

committing the offense for which he had been arrested. While

the government ordinarily bears a heavy burden of demonstrating

a knowing and intelligent waiver of constitutional rights, e.g.,

North Carolina v. Butler, 99 S.Ct. 1755, 1757 (1979), two fact-

ors combine to make that burden especially heavy here. First,

petitioner asserted both his right to remain silent and his

right to assistance of counsel, yet the police never allowed him

to speak with an attorney before he confessed. Second, petition-

er was very young -- only 13 years old -- and he lacked prior

experience with the police. Cf. Galleges v. Colorado, 370 U.S.

49 (1963). The decision of the court below all but ignored

these factors. In finding waiver, it presumed the existence of

one of the ingredients of a valid waiver -- namely an intention-

al relinquishment -- from a record that was silent. See Brewer

v. Williams, 430 U.S. 387, 404 (1977) ("{W)aiver requires not

merely comprehension but relinguishment. .*. -")

This Court has not heretofore elucidated the standards for

a valid waiver where a suspect, either a juvenile or an adult,

invokes both his right to remain silent, and his right to the

assistance of counsel. In Michigan v. Mosley, Supra, the Court

found a valid waiver after an assertion of the right to remain

silent, but not of the right to an attorney's aid. In Fare v.

Michael C., supra, the Court found a valid waiver after a ju-

yvenile unsuccessfully attempted to speak with his probation

officer, but the decision rested on the conclusion that such a

request simply did not deserve the consideration reserved for a

request to speak with counsel; for, in our system, "the lawyer

is the one person to whom society as a whole looks as the pro-

tector of legal rights. .. ." 99 S.Ct. at 2569. Finally, in

Rhode Island v. Innis, supra, the Court reversed the state

court's determination that the police had impermissibly contin-

ued interrogation after a suspect had invoked his right to

remain silent and to consult with an attorney. But the Court

did not expressly pass on a second issue the case presented,

whether Innis' waiver was valid. The Court did not hold that

Innis' confession was admissible but instead remanded to the

Rhode Island Supreme Court, which presumably can now decide the

waiver question, and, at all events, Innis, unlike the

» }-=

petitioner here, expressly waived his rights before confes-

sing.5/

Thus this case is an appropriate vehicle for a decision

that could fill an important gap in Miranda jurisprudence, viz.,

the standards courts should apply when deciding whether a sus-

pect has validly waived a right to counsel that he earlier asser-

ted. And, in petitioner's view, it is clear that no valid

waiver was shown here. The most that the government has shown

is that petitioner indicated on a card that he understood his

rights (and that he wished to assert them), and that he nonethe-

less later confessed. Whether or not 3n express waiver is nec-

essary after a right has been invoked, compare North Carolina Vv.

Butler, supra, (waiver may be inferred when right has not pre-

viously been asserted), here the record lacks a basis for infer-

ring waiver. With respect to the necessary element of intention-

al relinquishment, waiver could be found only by inferring it

from the fact that petitioner confessed, and that is clearly

improper. Compare Tague v. Louisiana, 100 S.Ct. 652 (1980).

The Court of Appeals' error in presuming waiver is ali the more

egregious in light of petitioner's youth and inexperience. Cf.

In re Gault, 387 U.S. 1 (1967).

5/ ‘In Brewer _v. Williams, supra, the Court found that a sus-

pect had not waived his “Sixth Amendment right to counsel

after he had asserted it. But the Court has subsequently

cautioned the courts to exercise care if attempting to seek

insights into Miranda from Williams, resting as the two

cases do on ditterent constitutional underpinnings. See

Rhode Island v. Innis, supra, 100 S.Ct. at 1689, n.4.

.

- 10 -

‘Way:

CONCLUSION

For these reasons, the writ of certiorari should issue to

review the judgment and opinion of the District of Columbia

Court of Appeals.

Respectfully submitted,

5; ln

LAS J.

yy - 7 oT ,

Public Defender Service for the

District of Columbia

451 Indiana Avenue, N.W.

Washington, D.C. 20001

202/628-1200

Counsel for Petitioner

- ll -

\

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 12823

IN THE MATTER OF: C.F APPELLANT.

Appeal from the Superior Court of the

District of Columbia

(Hon. Luke C. Moore, Trial Judge)

(Argued October 3, 1978 Decided February 15, 1980)

Roger H. Moore, appointed by the court, for appellant.

( ) Dennis McDaniel, Assistant Corporation Counsel, with

whom Lowis Pp. Robbins, Acting Corporation Counsel when

the brief was Aled and the case was argued, and Richard

w. Barton, Deputy Corporation Counsel, were om the

prief, for appellee.

eee eens

Before NEBEKER, HARRIS, and FERREN, Associate

\ Judges.

Opinion for the Court by Associate Judge HARRIS.

Dissenting opinion by Associate Judge FERREN at P- 13.

; HARRIS, Associate Judge: After a factfinding hearing

in the Juvenile Branch of the Family Division of the

Superior Court, appellant was found guilty of attempted

robbery While armed. D.C. Code 1973, $8 99.2902, -3202.

($22)

nur ae ao o*® .

. natant ad -

eel

Prior to that hearing, alleging Fifth and Sixth Amend-

ment violations, appellant moved to suppress 4m inculpa-

tory statement which he had made to his mother in the

presence of a police officer at the station house, 4° well

as a statement which he made thereafter to the officer.

This appeal challenges the denial of that motion; We

affirm.

I

One night at about 10:30 p.m. there was an attempted

robbery of a woman who had stopped her car ato traffic

would-be robbers. Shortly thereafter, appellant (who was

13 years old) and three other juveniles were arrested by

Officer Spooner Underwood. They first were taken to @

police substation and then to Robbery Squad Headquar-

ters, arriving at the latter location at about midnight.

appellant, that she could sit with her son, and that he

(Officer Underwood) syould talk with them later.

Appellant was given 4 Metropolitan Police Department

rights card, which he read with his mother. While he

had never had a comparable experience with law enforce-

ment authorities before (nor had his mother’, he signed

the card indicating that he understood his rights. He

also indicated that he did not wish to answer questions

and that he did want @n attorney: Appellant's mother

testified at the suppression hearing that at about that

time ‘she did not indicate exactly when) another officer

remarked to her, as she sat by her $m, something to the

following effect: “I should get him to tell about what

happened because he Was in serious trouble.” She also

[323]

~ aed --* * aoenee © tpenctee - o\ aaodae” aan eS oi amano

aa?

pout 39 nutes after appellant gned the rights

card, 9 nde -ood went with a@P wa nd his

other int adjoining yoo e sat dow with them,

and again \wis appellant nis right e oficer

then infor the m her tha he yous ho had been

yehe ith her so" ha nfessed q implicate

appell Thereupo™ * 5 OfAcer Under gat silently»

ppellant’s ther ¢@ on he o tell the trut

about the } cide + his mot 5 urging * pellant

dmitted having aken part in th attempt youoery»

and to elde BB pistol during the epis

Thereafter, cer Und rwood led ap ellant d his

mother * ther Yoo where th her arreste

uveniles 4 their parents were gath of the

ouths reco inted th part he she h Jayed In the

crime, with ¢ ppellat t apparently then addi - to what he

had already fossed the fact » he had pointed a

er een

a Lf,

gs es ~

ehh s

hart

ih eens lane er an ee eee «cet oc 8 =

4

ments without having an attorney present, and

indeed he said he did not wish to answer any

questions.

He stated, however, that he understood his

rights. And he also indicated that his rights had

been read to him, and to repeat, that he under-

stood his rights.

The Court finds on the basis of [the rights

card] without any evidence to the contrary that

this respondent did understand his rights and

that indeed he said he did not wish to answer

any questions. The Court further finds that this

respondent after speaking to his mother while

yet in the Robbery Squad’s office did state or give

an incriminating statement in the presence of

the officer and in the presence of the respondent's

mother.

The Court finds on the basis of the testimony

that that incriminating statement, the substance

of which has not been revealed to the Court, was

not the result of continued questioning oF inter-

rogation by the officers, but was indeed a result

of a conversation between the respondent and

his mother. The Court does not find that the

mother employed any kind of coercion oF that

this was 2 ploy established or set UP by the

police for the purpose of inducing the respondent

to waive his rights. Indeed it appears *° the

Court and the Court finds that this respondent

was responding to his mother’s urging, albeit,

in the presence of the officer when he gave the

incriminating statement.

It is a matcer of policy that parents ought to

be asked to come to the precinct and to the

[325]

net lee y S™,

Pe

5

Robbery Squad or any place else where a young-

ster is being held. And {defense counsel] in his

argument candidly points out that the evidence

certainly reveals that the officers—and ‘so (the

prosecutor } argued to that effect—that the officer

did not wait until after this youngster had ren-

dered some statements before calling in the

parent. Indeed the parent Was called.

And as far as it appears the officer had re-

spected this youngster’s indicating that he did

not wish to speak, and as I previously stated

there was no further questioning by the officers.

The Court is not prepared to hold that a par-

ent may not ask a child to tell the truth or to

make a statement concerning the incident. What-

ever has ber” held by Miranda and Gault and

other cases and including Brewer v. Wiiliams

[430 U.S. 387 (1977) }, the latter case of course

applies to Gault, there is certainly nothing that

the Court can glean from any of them which

suggests that a parent or 4 relative or indeed

some other person may not ask a respondent or

perhaps an adult to make a statement.

And if the Court need only to confine its find-

ings in this case to a respondent, .- - On the

basis then of all the evidence the Court makes

the findings that it has enunciated. On the basis

of those findings the Court concludes that this

respondent had waived his rights {not} to

speak concerning this crime, and that that

waiver was not induced by any coercion on the

part of the officer, and there certainly was no

evidence that it was the result of any coercion

on the part of the parent. Accordingly, the Court

denies the motion.

[326] .

cae + one

6

Following that determination, appellant was found

guilty at a hearing in which his jnculpatory statements

were admitted into evidence.

Il

Our scope of review is limited. See, &9+ D.C. Code

1973, § 17-305 (a). As reflected by the above-quoted ex-

cerpt from the transcript, the trial cours found that ap-

pellant understood his Fifth and Sixth Amendment rights,

that there was NO police questioning after appellant had

indicated his desire to remain silent and to have an at- *

torney, and that the inculpatory statement he made in

response to his mother’s questioning, in the officer’s pres

ence, constituted an effective waiver of his rights. The

trial court also found that appellant's mother had not

been used in a police ploy to induce appellant's waiver,

and that his mother did not overbear his will by coer-

cion.' In short, the trial court, properly evaluating the

——

1 Such findings, of course, are factual ones to be made by

the trial judge, and § 17-305 (4) of the Code makes it clear

that we are not free to upset them unless they are without

supporting evidence. TO justify the position taken in his

dissenting opinion, our colleague ‘finds it necessary tO make

his own contrary factual finding that the mother “became an

agent [of the police} for efficial interrogation.” {Post, at 22.)

We respectfully suggest that the dissent thus reflects a mis-

conception of the proper natur2 of appellate review. It is not

our role to determine how “e would nave ruled on the motion

had we been the trial judge; our sole function is to determine

whether the trial court committed reversible error.

Additionally, on several occasions Our dissenting colleague

characterizes certain testimony upon which he chooses to rely

as “undisputed.” There is no besis fox stich an assertion. The

trial judge 25 free to believe or disbelieve any of the testi-

mony. While we have studied the record to determine the

existence of supportive evidence, the case must be considered

(327] ;

- eter

-——-<——

© dimes nce

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ee,

j

ot

Joc emer m + *

7

totality of the circumstances, determined that the govern-

ment had satisfied its burden of showing that there had

been no infringement of appellant's rights and that his

confession Was voluntary.’

The trial court’s ultimate factual finding of voluntari-

ness is not to be overturned untess it is without sub-

stantial support in the evidence. See, eg., Jackson v.

United States, D.C.App., 404 A2d 911, 924 (1979) ;

In re W.B.W., J” D.C.App., 397 A.2d 148, 145 (1979) ;

Taylor v. United States, D.C.App., 380 A.2d 989, 992

(1977) ; United States v. Lyon, D.C.App» 948 A.2d 297,

298-99 (1975); In ve M.D. D.C.App., 346 A2d 733,

735 (1975) ; United States v. MeNeil, 140 U.S.App.D.C. 3,

433 F.2d 1109 (1969).> The record unquestionably sup-

ports the trial court’s ruling.

——

by us in light of the uniquely complete findings which were

made by the trial judge, including that “tha mother employed

{no] kind of coercion.”

2 The Supreme Court recently has noted: “ [The] totality

of the circumstances approach is adequate to determine

whether there has been a waiver even where interrogation of

juveniles is involved.” Fare v. Michael C., 99 S.Ct. 2560, 23572

(1979). See also Johnson v. Zerbst, 304 U.S. 458, 464 (19388).

3Some appellate courts apply an “abuse of discretion”

standard of review in considering yoiuntariness questions.

See, e.g., State v- Weinacht, 277 N.W.2d 567, 571 (Neb. 1979).

The proper standard in this jurisdiction was stated succinctly

by the circuit court in United States v. McNeil, supra, a5

follows:

In the case at bar, however, appellant's claim of invol-

untariness and lack of understanding Was equarely pre-

sented to the trial judge and was flatly rejected, and only

if the judge's decision lacks substantial support in the

evidence [are we] disposed to alter it. [140 U.S.App.D.C.

at 6, 433 F.2d at 1112.)

(328]

S

Ill

It is useful to note basically what the Supreme Court

resolved in Miranda v. Arizona, 884 U.S. 436 (1966). In

a recent case, the Court reversed 2 decision of the Cali-

fornia Supreme Court and reinstated a trial judge’s de-

termination that 4 juvenile’s confession ‘given during

police interrogation, which is not the situation here)

had been voluntary. Fare v. Michael C., 99 S.Ct. 2560

(1979). In doing So, it succinctly characterized Mirande

as follows:

In Miranda V. Arizona, 384 U.S. 436 (1966),

this Court established certain procedural safe-

guards designed to protect the rights of an ac-

cused, under the Fifth and Fourteenth Amend-

ments, to be free from compelled self-incrimi-

nation during custodial interrogation. The Court

specified, among other things, that if the ac-

cused indicates in any manner that he wishes to

remain silent or to consult an attorney, interro-

gation must cease, and any statement obtained

from him during interrogation thereafter may

not be admitted against him at his trial.¢! Id.,

at 444-445, 473-474. (99 S.Ct. at 2563.)

Thus, it is clear that custodial interrogation (obviously

by governmental quthorities) is what was intended to be

interdicred, and that the bedrock of Miranda is the Fifth

Amendment rigat “to be free from compelled self-incrimi-

nation” or from interrogation in the face of a request

——

«After so describing Miranda in Fare v. Michael C., the

Supreme Court went on to cite Harris v. New York, 401 U.S.

922 (1971), in noting that the proscription of Miranda is

applicable “at least during the State’s ease-in-chief.” 99 S.Ct.

at 2568.

[329]

(

9

)

for counsel. In this case, it must be borne in mind that

there was No custodial interrogation by the police.

We do, of course, continue to operate on the assumption

that the principles of Miranda apply in cases In W ich

there has been custodial questioning i) i

e.g., Inve Creek, D.C.ApP» = 3 A.2

tion, we feel obliged to consider juvenile confessions wit

special -aution—particularly those which have been made

in the absence of counsel. See In re Gault, 387 US. 1

45 and 595 (1967). We have ruled against the use of 4

juvenile’s confession when police overreaching has been

apparent. See, e.g» In re R.A.As D.C.ApP-» 914 A.2d 133

On the other hand, we properly have rejected & per se

proscription against the use of confessions by juveniles,

holding that despite the special care that must be taken,

sIn the interest of thoroughness, however, We quote the

following footnote in the Supreme Court's decision in Fare v-

Michael C., supra:

Indeed, this Court has not yet held that Miranda applies

with full force to exclude evidence ootained in vio ation

opinion). We do not decide that issue today. In view ©

our disposition of this cases we assume without deciding

that tr > Miranda principles were fully applicable to the

presen proceedings: (99 S.Ct. at 9567 ni.)

-- - oeone' oe ena

—

.

-_-

y. United States, D.C. App- 995 A.2d 41 (1978); Taylor

y. United States, supra 930 A.2d at 993; United Sta’es

. ec. |e

597 F.2d 513 15th Cir. 1979) (en bane) (waiver fol-

lowing assertion of right to counsel).

Applying established jaw to the facts of this case, We

by substantial evidence, that appellant s confession a5

not the result of police-initiated interrogation, mut rather

of well-intentioned parental influence. See Im re C.P.D.,

D.C.ApP- 367 A.2d 133 +1976). In C.P.9., supra, %

juvenile arrestee WAS brought to 4 station house. was

read his rights in the presence of his stepfather. and

Then, with a police officer within earshot. the youth. in

response to 4 question from his stepfather, made an

jneulpatory statement. The officer Was allowed to restify

as to that statement: We afirmed the nding of guilt. We

noted appellant's challerge %° the admission of the state:

ment on the ground that its elicitation violated his

¢We are mindful that to be acceptable. such 2 confession

should be ecoluntary, in the sense not only that it was not

coerced oF sugce@ed. but also thet it was not the product

of ignorance of rights oF of adolescent fantasy. fright oF

re

despair.” fa re Gauit, supra. at 55 (foonote omitted).

(331)

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.

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wee coed women weed i cams @ od 0 tens? ome © seed anse ¢ omence:& 120 &

11

Miranda rights, and his contention that it was not volun-

tarily given. After considering the evidence, we concluded:

Since appellant’s statement was not given in

response to police interrogation, and since there

is nothing in the record before us to indicate

that it was in any way involuntarily obtained

as a result of compulsion, we hold that it was

correctly admitted into evidence below. [Jd.,

at 135.]

See also Fuller v. United States, 182 U.S.App.D.C. 264,

277-78, 407 F.2d 1199, 1212-14 (1967), cert. denied, 393

U.S. 1120 (1969).

There can be no question but that it is a desirable

policy for a parent of an accused juvenile to be called

to the station house, so as both to be present at the oecur-

rences there and to be able to consult with the youth.

Also, appellant properly does not challeng? the fact that

the officer informed his mother of the nature of the

charges, and then advised both mother and son of the

other youths’ confessions which implicated him. This was

information which mother and son were entitled to have,

whatever effect it might have on them, and for whatever

use they might make of it. See, eg., United States v.

Rodriguez-Gastelwm, supra, 559 F.2d at 485 & n.6:; United

States v. Pheaster, 544 F.2d 353, 366-68 ‘9th Cir. 1976),

cert. denied sub nom. Inciso v. United States, 429 U.S.

1099 (1977).

Appellant argues that In re C.P.D., supra, is dis-

tinguishable from this case because here the police officer

did not merely overhear a discussion between parent and

child, but rather created the situation which led to the

confession made in the officer's presence. However, there

was nothing improper in the oficer’s being present while

mother and son were together. See Fuller v. United

[332]

Ee eel

12

States, supra. Even assuming that the officer hoped a

confession would be forthcoming, that would be insuffi-

cient to taint the confession. The officer did not seek to

conceal his presences and he had again advised both appel-

lant and appellant's mother of the youth’s Miranda rights

immediately before the mother sought to elicit the truth

from her son.’

As for the comment allegedly made to the mother by

another officer at the station house to the effect that she

“should get him to tell what happened because he was in

serious trouble,” such a suggestion—if in fact it was

made—perhaps might better have been left unsaid. How-

ever, such words, in the overall setting reflected by the

record, do not yender the subsequent confession involun-

tary. We note the following statement which was made

by the Supreme Court in Fare v. M ichael C., supra:

The police did indeed indicate that a cooperative

attitude would be to respondent's benefit, but

their remarks in this regard were far irom

S

threatening OF coercive. (99 S.Ct. at 2573.)

Finally, while we are sensitive to the teachings of In

re Gault, supra, we do quote with approval the following

language of this court which is expressive of the genera

acceptance of the parens patriae concept which remains

inherent in our juvenile justice system:

————

\ Appellant also allege? that his statements which were

made during the subsequent roundtable session with the other

youths and parents should have been suppressed. However,

in view of our conclusion that appellant's inculparory state-

ment to his mother Wes not the result of improper police

(The record reflects that nothing critical to his quilt was

revealed by appellant at the rountable session which he had

not already revealed in response to his mother’s questions.)

[333]

“sy

——-+->-

~~ -——<—>

r™

13

In delinquency proceedings particularly, it is

essential to balance the constitutional rights

which relate to possible loss of liberty with the

recognized modern approach and policy of care

and treatment for the eriminally-bent youth.

This balancing cannot assume a legal incapacity

to waive those rights without sacrificing, in

many cases... - the vital interests underlying the

policies and goals of the juvenile court system.

{In re J.F.T., supra, 390 A.2d at 324.)

Cf. Pee v. United States, 107 U.S.App.D.C. 47, 274 F.2d

556 (1959).

Affirmed.

FERREN, Associate Judge, dissenting: The majority to-

day holds that when a juvenile in police custody is advised

of his Wiranda' rights and, after consultation with his

mother, requests @ lawyer and says he “doesn’t want to

talk,” the police constitutionally may ignore his response,

urge his mother minutes later t “get him ‘to tell what

happened,” read the boy his rights once again, listen to

him confess the crime as his mother repeatedly implores

him “to tell the man the truth”—and then introduce that

confession at trial. I dissent because I believe that C.P.,

under these circumstances, cannot be held to have waived

his Fifth Amendment rights to silence and to counsel.’

————————

1 Miranda v. Arizona, S34 U.S. 436 (1966).

2] do not address the question whether C.P.’s Sixth Amend-

ment right to counsel had attached under the circumstances

of this case. See Brewer v. Willams, 430 U.S. 387, 395 (1977)

(“right to counsel granted by ce Sixth ..- Amendment (]

means at least that a person is entitled to the help of a lawyer

at or after the time that judicial proceedin 3s have been

(334)

a oe

14

I.

The following sequence of events is undisputed: The

police took appellant C.P. ‘then 13 years old) to Robbery

Squad Headquarters at about 12:00 midnight; he eX

pressed & desire to say nothing; his mother arrived at

about 1:30 a.m.; the police gave ft AS Miranda rights

card and Jeft him for awhile with his mother, who

helped him read it. C.P. then signed the card, indicating

that he understood his rights, did not wish to answer

questions, and wanted an attorney. After signing the

card, he told his mother that he did not want to say

anything. At about this time, another police officer told

C.P.’s mother that she “should get him to tell what hap-

pened because he was in serious troudle.”” Soon thereafter,

one of the police officers Who had been present when C.P

asserted his rights took C.P. and nis mother aside, advised

the youth again of his rights (without giving him a

second card to sign), and informed his mother. in C.P.’s a

presence, that other youths had confessed and implicated

C.p. At this point—it was 2:30 a.m. approximately 3

minutes after om originally had invoked his Miranda

—

initiated against him’). The Supreme Court declined an

opportunity in Brewer, supra, to resolve questions concerning

the interaction between the Fifth Amendment right to have

counsel present during interrogation, see Miranda, supra,

and the Sixth Amendment rizni to assistance of counsel. See

Massich v. United States, 977 U.S. 201 (1964). For heipful

discussions of the interrelations up between these Fifth and

Sixth Amendment rights, 37° Gr2no, Rhode Island v. Innis:

A Need to Reconsider the Constitutional Premises Underlying

the Law of Confessions, 17 AM. CRIM. L. Rev. t (1979) ;

Kamisar, Brewer v- Williams, Massiah, and Miranda: What

is “Mpterrogation” ’ When Does i Matter? S7 Geo. LJ. 1

(1978) ; White, Rhode [sland v. Innis: The Significance of a

Suspect’s Assertion of His Right to Counsel, 17 AM. CRIM.

L. REV. 53 (1979).

(335] 5

SS . —

~ooom

~~

©)

15

rights—C.P.’s mother, while the officer sat there silently,

urged her son over and over again to tell the truth.’

Although he expressed great reluctance to talk, see note

supra, C.P. eventually confessed his involvement in an

attempted robbery while armed.

Il.

Miranda and its successors provide two levels of protec-

tion. Under the first, a law enforcement officer who pro-

poses to interrogate a suspect in custody must give the

necessary warnings and, before questioning begins, obtain

a waiver of rights. Whether that waiver is knowing and

voluntary is judged by reference to the “particular facts

and circumstances.” North Carolina v. Butler, 99 S.Ct.

1755, 1758 (1979). The second level of protection is

triggered once a suspect asserts, rather than waives,

Miranda rights. Thereafter, the officer may not interro-

gate unless the suspect decides to waive the asserted

3C.P.’s mother provided the following undisputed testimony

on cross-examination :

A. I was telling him to tell the truth.

Q. And did he say something then?

A. He didn’t want to talk.

Q. Did he tell you that he didn’t want to talk?

A. Yes. He was tolling the officer that he didn't want

to say anything.

Q. Do you remember what he said to the officer?

A. No, not the axact words. He said he didn't want

to say anything. he didn’t have anything to 52y.

Q. And then what heppened?

A. I told him to tell the truth. I kept telling him to

tell the truth, more than once I know.

Q. Well, how many times cid you say it?

A. Ican’t remember. I just kept repeating to him to tell

the truth, tell the man the truth, tell what happened.

Q. And what did your son do?

A. He started talking to him.

[336]

seo-—-*

5 en take eS ee AE ee © ec ewansthecmassn a O% + tame

16

rights, but there is an additional ingredient: no waiver

can be valid unless the suspect’s “right to cut off ques-

tioning” has been “seyupulously nonored” up to the time

of the waiver. Michigan v. Mosley, 423 U.S. 96, 104

(1975) (quoting Miranda v. Arizona, 934 U.S. 436 at

474, 479 (1966))- Thus, when the second level of protec:

tion is at issue, as in this ease, the court confronts @ two-

step inquiry, State v. Nash, 407 A.2d 365, 967-68 (N.H.

1979); (1) Have law enforcement officials “serupulously”

refrained from interrogating the suspect once he or she

has asserted Miranda rights? '2) If so, has there been

a valid waiver, See Johnson v. Zerdst, 304 U.S. 458, 464

(1938), based on the “sotality or the circumstances” sur-

rounding the interrogation? See Jackson. v. United States,

D.C.App., 404 A.24 911, 922 (1979'."

Once the court begins 3 second-level Miranda inquiry,

the government inevitably has a heavier burden to show

waiver than it does during @ first-level inquiry, for it

must demonstrate Not only that the asserted rights have

been “serupulous!y honored” but also that the suspect has

actually changed his oF her mind. See Nash, supra at

368. We have emphasized, moreover, that “when the gov-

ernment attempts t0 show that 2 waiver of the right of

counsel has been made after such right was once exercised,

the governmen: bears a greater burden than when it

cacianaisitansi

41f the suspect’s rignts have not been “serupulously hon-

ored,” in that the police have Dro’ ided no demonstrable hiatus

between assertion of rignts and later questioning, that ends

the inquiry. Waiver carrot de found, because there will not

have been 2 period of tire during which the suspect could

reflect on a possibie aiver, unaffected by police overreaching.

See Mosley, supra at 102; Peoples United Siates, D.C.App..

395 A.2d 41, $4 (1978), cert. denied, 99 S.Ct. 9826 (1979);

United States ¥. Clayton, 497 F Supp. 204, 207 (E.D.Wis.

1976).

ao oer nce

on—w-* —

-coete® <

woeue= °°

nm

attempts to show a waiver of the right to rernain silent.”

Jackson, supra at 922 (citing Saree’ », United States,

D.C.ApP- 395 A.Sd q74, 781 (1978), cert. denied,

S.Ct. 2161 (1979) )5 accord, United States ¥ Rodrig e=-

Gasteluim, 569 F.2d 482, 485 (9th Cir. 1978) ten banc) 3

Nash, supra ® at 368.’ This ext? emphasis on protecting an

assertion of the right to counsel is premised on the

Supreme Court’s recognition in Brewer U- Williains, 130

US. 387 (1977), that in contrast with 4 situation in

which “the accused has chosen to make his ow? decisions,

any waiver of the right to counsel, after once ¢ asserting

it, represents 4 change in one’s view of his or her own

competence, which therefore “may properly be viewed

with skepticism. » Id. at 405 2. 10 (quoting Mosley, supre

at 110 n.2 (Whites J. concurring) )-

These principles apply to juveniles. Specifically: as to

first-level Miranda W nivers, this court has state

—_——

8 Jackson, supra, is @ second- -level Miranda inquiry, analy2-

ing waiver of the Fifth Am endment right to counsel. In

announcing a “greater burden” for waiver of the right to

counsel, We relied on our decision in Shreeves. supra, & second-

level inquiry inte the yncounseled waiver of the Sixth Amend-

ment right to counsel by 4 suspect who had already retained &

lawyer. Thus, for 4 second-!¢ evel inquiry, We have percei¥ ed no

difference perween the govern= vents burdens to establish

waiver of the Fifth and Sixth Amendroent & chts to counsel,

see Brewer, supra at $30 n.l- (White, ‘J . dissentit ng). More

over, in both cases ¥ aiver is determined by reference tO the

“totality of the circumstances:

Nash, supre, makes the distinction between first and second-

level Miranda inquiries but, in cont rast with Jackson, supra.

the New Hampsnire Supreme Court holds une der the state

constitution that “the rigat to freedom from selt- inerim mination

include(s} rhe requirement ¢ that 2 yoiuntary orei or written

express waiver (not im rduced bY further interr’ ogation) be

obtained once the right to counsel is asserted. Id. ar 3 i)

[33S]

1$

The pertinent factors to consider when deter-

mining the validity of waiver of constitutional

rights of a juvenile include the individual’s age,

education and information, «+ + the degree of

experience with law enforcement, . - - the cir-

cumstances of the questioning, and delay detween

arrest and conzession, and any allegations of

coercion or trickery. - + - Thus, rather than giv-

ing overriding importance to any one factor, the

court must consider the totality of circumstances

surrounding the confession. {Matter of D.AS.

D.C.App., 391 A2d 255, 258 (1978) ‘citations

omitted) .}

Accord, Fare v. Michael C., 99 S.Ct. 2560. 9572 (1979);

Matter of W.B.W., D.C.App. 397 A.2d 145, 145 11979)."

% Consistent with this approach, we have “reject(ed] a

so-called ‘per se’ rule arbitrarily holding any juvenile’s state-

ment involuntary absent the presence of a pavent or counsel,”

In re J.F.T., D.C.App., 329 A.2d $22, 324 | 1974); record,

Matter of W.B.W., supra at 146; Matter of T.T.T.. D.C.App.-,

365 A.2d 366, 970 1.5 (1976). Contra, Lewts ». State, 259 Ind.

431, 435, 988 N.E.2d 138, 142 (Ind. 1972) scour conditions

validity of waiver on child’s prior consultation with a parent

or other responsible adult) ; State . Dino, 329 So.2d 586, 591-

92 (La.) cert. denied, 439 U.S. 47 (1973) (same). On the

other hand, it is ¢.ear that 3 vouth’s age task of experience

and sophistication. and other Zactors can ake parental or

other adult participation essentia! to @ valid waiver under

certain circumstances. O°": 6.9. McBride v. Jacobs, 101 U.S:

App.D.C. 189, 199, 247 F.2d 395. 596 (1937). S*ate ¥. Hoga”,

997 Minn. 430, 440, 212 NW .2d 634, 671 |

wealth rv. Roane, 439 Pa. 389, 39%, 929 A.2d 259, 238 (1974).

In all cases, of course, the proper question is whether the

child, not the parent, exercised the right *o inveke the privi-

lege against salf-inerimination. See Metter of S.W.T., 277

N.W.2d 597, 512 (Mina. 1979); ¢f. McBride, supra at 790,

247 F.2d at 596 (waiver of zhe rignt to ceunsel is for the

juvenile, not the parent, to make unless “he cour? finds for

(339]

= ee etce Or eent=e See

eae 4

)

hit

19

We also adhere to the adult line of cases when consider-

ing second-level Miranda waivers. In Matter of -T.T.T.,

D.C.App., 365 A.2d 366 (1976), we sustained the trial

court’s suppression of a tape-recorded statement police

had obtained from a juvenile sometime between “a few

minutes” and two hours after he had “responded in writ-

ing on the form given him by the Youth Service officer

that he would not answer questions without an attorney,”

and “had expressly asked” the officers “to terminate the

written statement” he had begun earlier. Id. at 369.

We did so even though the juvenile, after asking Tor

counsel, had willingly “resumed talking” with two homo-

cide detectives and even “agreed” to tape record the con-

yersation. Id.’ T7.T.T., therefore, makes clear that a

second-level waiver cannot be inferred more easily in

the case of a juvenile than of an adult. When a child

says he or she does want to remain silent and have a

lawyer, the government has a substantial burden to show

that the child !ater waived those rights.°

any reason the minor is not capable of a waiver,” in which

case “the parent may so waive provided the court also finds

there is no conflict of interest between them, and of course

the waiver by the parent must be an intelligent, knowing

act.”’).

7 Compare Taylor v. United States, D.C.App., 380 A.2d 989,

993 (1977) (sustained trial court finding that youth had

not asserted the right to counse!).

®It is interesting to note, however, that the boy had spoken

with the police over 2 period of several hours before he

asserted his rights. We reversed the trial court’s suppression

of his prior statements, concluding that some cecurred before

the police had taken him into “custody,” while others had been

made voluntarily after waivers of Miranda rights. T.T.T.,

supra at 370.

® The present case adds 2 dimension not yet factored into a

Supreme Court decision: a second-Icvel inquiry into the

[340]

20

III.

Applying the foregoing principles to the undisputed

facts of record, I conclude that the trial court committed

reversible error in holding that, under the totality of the

circumstances, appellant’s incriminating statement “was

not the result of continued questioning or interrogation

by the officers,” and that appetlant in any event waived

his rights to counsel and to silence. These conclusions are

“without substantial support in the evidence.” Peoples

v. United States, D.C.App., 395 A.2d 41, 44 (1978), cert.

denied, 99 S.Ct. 2826 (1979); Taylor v. United States,

D.C.App., 360 A.2d 989, 992 (1977); United States v.

alleged waiver of the Fifth Amendment right to counsel.

Fare, supra, and Mosley, supra, were first- and second-level

Miranda inquiries, respectively, into waiver of the right to

remain silent. Butler, supra, was a first-level inquiry into

waiver of the Fifth Amendment right to counsel.

On October 30, 1979, however, the Court heard argument

in Rhode Island v. Innis, R.I. , 891 A.2d 1158

(1978), cert. granted, 440 U.S. 934 (1979), a case in which

the suspect was arrested for a shotgun murder, given his

Miranda warnings, asserted his right to be represented by

counsel, and subsequently incriminated himself in response

to a comment by the arresting officer in the suspect’s presence

to the eect that any child who found the shotgun very lixcly

would get hurt. The Rhode Island Supreme Court concluced

that the officer's speech constituted interrogation, even though

it was neither directed at defendant nor made with the inten-

tion of eliciting incriminating evidence from him. The court

also conciuded that the suspect neither disavowed his request

for an attorney nor otherwise waived his Miravda rights

before the officer’s remarks were made. The court held. on

Fifth Amendment grounds, that the incriminating statements

should have been suppressed. On the facts, therefore, [sus

presents the Court with the Fifth Amendment analogue of

Brewer, supre, a Sixth Amendment case. See note 2 supra.

[341]

«where

ome ore oon om

YS

21

Lyon, D.C.App., 348 A2d 297, 299 (1975); D.C. Code

1975, $ 17-305/a).”

A. First, the police did not “serupulously honor” C.P.’s

“right to cut off questioning” once he had asserted his

rights to silence ond a lawyer." The uncontested facts

of record support she conclusion that the potice created a

mother-son cont rontation which led to the confession made

in the officer's presence, and even the majority appears

willing to assume that “the officer hoped a confession

would de forthcoming” in their conversation. Ante at

12. The majority nonetheless accepts the trial court’s

findings that this was not 4 “ploy established or set UP

by the police foy the purpose of inducing the respondent

to waive his rights,” and that C.P.’s incriminating state-

ment was therefore “not the result of continued ques-

——-—————

10 The majority diminishes our function on review by un-

critically accepting the totality of the trial court’s findings

and conclusions. In assessing the circumstances surrounding

the allezed waiver, We must weigh each of the trial court’s

findings against the evidence ot record, for ovr standard of

review is whether the findings have “sn dstantial support in

the evidence,” Peoples, supra at 44 (emphasis added), not

whether they re “without supporting evidence,” 3S stated

by the majerity. -inte at 6 nl. Under the proper standard,

we are obliged to scrutinize the findings of the trial court and

reverse where 2 conclusion of !aw is in apparent conficr with

“the sequence of events and the trial court's other findings.”

T.T.T., supre 2 359. In fact. in T.T.T., upon examination

of the circumstances surrounding the questioning of a ju-

venile, “2 accepted the serial court's conclusion that the third

statement given by T.T.T. was not voluntary. put reversed

the same conctusion with respect to two earier statements.

See note § supra.

un Compare In re C.P.D., D.C.APP+ 367 A.2d 133 (1976)

(denial of motion to suppress incriminating statement upheid

here youth, after asserting the right to silence but not

counsel, made an ineulpatory statemont to his stepfather, over:

heard by police officer).

.

(342]

oe ote oe em '=

22

tioning or interrogation by the officers.” I cannot accept

those findings. They are unsupportable on this record.

The confrontation between mother and son at police

headquarters obviously would not have occurred without

instigation by the police; C.P.’s mother accordingly be-

came an agent for official interrogation. See, e.g., State

y. Kelly, 439 3.W.2d 487 (Mo. 1969) ; Commonwealth v.

Mercier, 451 Pa. 211, 302 A.2d 337 11973); Common-

wealth v. Bordner, 432 Pa. 405, 247 A2d 612 (1968).

More specifically, within 50 minutes after C.P. had

asked for a lawyer and said he did not “want to talk,”

the police urged C.P.’s mother to “get him to tell what

happened.” See T.T.T., supra at 369 & 13; United

States v. Clayton, 407 F.Supp. 294, 995 (E.D.Wis. 1976).

The police then read C.P. his Miranda rights second

time, but altered the procedure used earlier by not giv-

ing him a rights card to sign. Compare Mosley, supra

at 97-98; Peoples, supra at 43. Finally, the police did

not give C.P. an opportunity, once again, to consult with

his mother privately befure she began to urge him “to

tell the truth” to Officer Underwood. See note 3 supra.

The loss of this opportunity was especiaily significant in

light of new information, supplied by the police, that sev-

eral youths had just implicated C.P. Under these circum-

stances, it cannot be said that there was a “momentary

cessation,” let alone a “significant period of time,” Mosley,

supra at 102, 106, during whic C.P. could reflect before

being pressed—over and over again—to tell the police

what happened. See note 3 spre. On these facts, the

trial court could not have found scrupulous police regard

for C.P.’s “right to cut off questioning.” as that concept

is elaborated in Mosley, supre. and other eases."*

sienna

12 In Mostey, suprs, the Supreme Court held that admission

of an incriminating statement did not violate Miranda prin-

ciples because the period between assertion of the right to

(343]

————

2

aw

23

B. Even if it could be said, by virtue of the second

reading of Miranda rights, that the police had scrupu-

silence and resumption of questioning was two hours; Mosley

executed a written waiver after the second set of Miranda

warnings; and a different police officer interrogaied Mosley

the second time at another loc#..on about a crime unrelated

to the one with which he was first confronted.

In Peoples, supra, we reached the same result where the

interval between initial and iater questioning was six hours ;

interrogation resumed at People’s request; and a judicial

officer gave a second set of Miranda warnings, followed by a

written waiver, before questioning took place.

In contrast, in T.T.T., supra, we upheld suppression of #

statement which the juvenile “sereed” to make sometime be-

tween “a few minutes” and two hours after asserting the right

to counsel in writing. Similarly, in Clayton, supra, the court

held that the statement should have been suppressed because

the interval between the original interrogation (ended by an

assertion of Miranda rights) and the resumption of question-

ing was only 50 minutes, and on both occasions the same

officer interrogated the suspect about the same crime—all

factors Which the court said were forbidden or Mosley, supra.

The circumstances of this case are decidediy closer to

T.T.T., supra, and Clayton, syvpre, than to Mosley, supra or

Peoples, supra. In reaching this conclusion ! do not suggest

that a 39-minute interval between assertion of rights and

alleged waiver will never be long enough to assure that the

right to cut off guestioning has been scrupulousiy* honored.

Nor do I suggest that whenever parental consultation with a

youth results in a written assertion of rights, the police can

never acknowledze a waiver uniess it also is in writing, after

parental consultation. Noroihaiess. whenever ther? has been

a very short period of time since Mireeda rights were

asserted, and the Miranda procedure itself has been altered,

and even private parental consultation has been abandoned

between the assertion of richts and the alleced waiver, there

must be powerful offsetting evidence before a court can find

that the police scrupulousiy honored the youth’s asserted

rights to remain silent and to have a lawyer. Such ct'setting

evidence is simply not present in this case.

(344] :

————— nme

—_———

24

lously honored C.P.’s right to cut off questioning, the

record does not support a finding that there was “a know-

ing, voluntary, and inteliigent waiver of a known right.”

Jackson, supra at 922; see Johnson, supra at 464; Nash,

supra at 368.

In a first-level Miranda inquiry, the Supreme Court

recently stated that, absent an express Waiver, “ft}he

courts must presume that a defendanc did not waive his

rights; the prosecution’s burden is great... .” Butler,

supra at 1757; see Matter of F.D.P., D.C.App.. $52 A.2d

378, 380 (1976). The burden is all the greater for 2

second-level waiver, especially waiver of the right to

counsel. Jackson, supra at 922." We consider here an

alleged waiver by & 13-year-old boy who had no prior

experience with the law enforcement system and re-

quired his mother’s assistance to read and understand

the Miranda warnings in the first place. Then, after

consulting with his mother, he asserted the rights to

counsel and to silence. When the police read him his

rights for a second time only 30 mimates later, and told

his mother (in C.P.’s presence! that other youths had

implicated her son, C.P. was not given another opper-

tunity to consult privately with his mother. Nor was he

even given an opportunity to reflect on the situation

before his mother began to press him in front of a police

officer to tell what happened-—which for awhile C.P. re-

sisted. See note 3 supra. Nor did he expressely waive his

rights.

y

13 To assure that the government’s heavy burden has been

met, we have said that a second-level waiver of couns?! must

be documented throuch “explicit Aindings ef fact” by the trial

court. Jackson, supra at 922; see Shreeres, supre at 731. The

triat court’s Andings here co not deal with waiver 9° counsel:

they focus on waiving the right to silence. See au’e at 3-3.

In any event, as already indicated, 1 do not find record support

for a Waiver of the right to counsel. : :

[345]

XS

ew ta

.

oo <~

~ 4

25

Under these circumstances, I cannot agrec that C.P.’s

eventual willingness to answer his mother’s questions in

front of Officer Underwood—without more “—was suf-

ficient to support a finding that C.P. made a knowing,

voluntary, and intelligent waiver of his previously-asserted

right to have a lawyer present before he said anything."

The circumstances were simply too coercive, too abruptly,

to provide assurance that the government met its heavy

burden of proof. Indeed, by virtue of the mother’s role

here vis-a-vis the police, this case conceptually is the

same as if an officer did the questioning—a circumstance

which, given C.P.’s stated reluctance to talk, is indis-

tinguishable from one in which the police simply ignored

the assertion of rights altogether. See T.T.T., supra:

Lyon, supra. Because C.P.’s mother Was acting as a police

surrogate, not as his confidante—or at least was ap-

parently unable to perceive and take time to explain her

dual role to C.P.—there is even a strong argument that,

—

4 According to the Supreme Court in Miranda, supre at

475: Pad

An express statement that ‘the tndividual is willing to

make a statement and does not want an-attorney followed

closely by a st tement could sonstitute a waiver. But a

valid waiver will not be presutned simply from the silence

of the accused after warnings are given or simply from

the fact that a confession was in fact eventually oniained.

18 Compare T.T.T., supra ar 399-76 (second-! syvel statement

suppressed where juvenile, after asserting the right to coune

sel, “resumed talking” with police and “ayreed” ‘to tape-

record conversation) with Fare, supra at 2572 (first-level

statement admitted where, “aftor the police officer once more

had explained his richts to him, rospondent clearly expressed

his willingness to waive his rights and continue the inter-

rogation”).

[346]

26

under the circumstances, C.P. could not waive his rights

ie without a lawyer's help.”

IV.

The Supreme Court, in a case concerning a first-level

waiver by a juvenile, recently affirmed the seriousness

with which a suspect’s request for a lawyer must be

taken.

Whether it is a minor or an adult who stands

accused, the lawyer is the one person to whom

society as a whole looks as the protector of the

legal rights of that person in his dealings with

6] agree with the trial court that “parents ought to be

asked to come to the precinct and to the Robbery Squad or any

place else where a youngster is being held,” and that nothing

should preclude a parent’s asking “a child to tell the truth

or to make a statement concerning the incident.” Ante at 4-5.

The point here, though, is that the mother, after acting as -

C.P.’s confidante at the time he asserted his rights, either )

changed her mind or persisted in advice which C.P. had

rejected in asserting his rights. Either way, a child who had

been dependent on his mother for reading the rights card

in the first place cannot be said to have waived his rights

without, at the very least, a confidential discussion with his

mother. Whether such a hiatus in the sequence of events

would have been enough to remove the mother from the role

of police surrogate (even tiough questioning took place while

C.P. was in custody, with Oricer Underwood present), and,

in any event, Whether C.P., given such additional time to rw

flect, could be found to nave knowingly and voluntarily waived

his rights, having esxked fora lawyer “a few minutes earlier,”

T.T.T., supra at 269, is problematic. The trial court must be

sure that the waiver {s the child’s not the parent's. See

McBride, supra at 190, 247 F.2d at 596; SIV.T., supra; note

6 supra. For all the encouragement the court should give to

parent-child consultation, the court, above all, must be sure

that the child’s own decision as to assertion of rights or

waiver is honored.

[347]

\

27

the police and the courts. For this reason the

Court fashioned in Miranda the rigid rule that

an accused’s request for an attorney is per se

an invocation of his Fifth Amendment rights,

requiring that all interrogation cease. [Fare,

supra at 2569.) 7!

By sustaining the trial court’s ruling, in effect, that C.P.’s

right to cut off questioning had been scrupulously hon-

ored, and that he waived his rights—including the right

to a lawyer—this court has completeiy ignored the gov-

ernment’s heavy burden during a second-level Miranda

inquiry into waiver of counsel. The court impermissibly

cheapens Fifth Amendment rights.

I would reverse and remand to the trial court for an

order granting C.P.’s motion to suppress.

IT As indicated earlier, we have said that a suspect can

make a second-level waiver of the Fifth Amendment right to

counse! (commonly without consulting an attorney) based on

the totality of the circumstances. See Jackson, supra. That

question is now before the Supreme Court in Innis, supre.

See note 9 supra.

[348]

’ “7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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