Petition — C. P. v. District of Columbia
Supreme Court brief1980
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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
eR eee ae °°
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)
———— ee ee
ome «0001 eeoe>
--——. .
()
C)
ae
.
\y
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.