BECKWITH, Associate Judge:
For nearly two hours of stationhouse questioning, in the face of false reports that several witnesses had identified him, a false claim that his fingerprints were found in the vehicle, and persistent illusory promises of favorable treatment if he confessed, eighteen-year-old Jolonta
The firmness of Mr. Little's denials during disquieting tactics and the persistence of those denials as the pressure increased help persuade us that when he finally did speak in the immediate wake of the most coercive tactics mentioned above, his statements were not made "freely, voluntarily, and without compulsion or inducement of any sort." Haynes v. Washington, 373 U.S. 503, 513, 83 S.Ct. 1336, 10 L.Ed.2d 513 (1963); In re J.F., 987 A.2d 1168, 1177 (D.C.2010). On this ground, we hold that Mr. Little's motion to suppress his confession should have been granted, and we reverse Mr. Little's convictions
The charges against Jolonta Little stem from a September 19, 2008, incident in which a woman named Camilla Deline was standing near her Toyota Highlander outside her daughter's apartment on T Street N.W. when she was grabbed from behind and choked by one man while another man demanded her keys. Ms. Deline's daughter, Marisa Deline, arrived to find a young man in the driver's seat of her mother's car, another young man running around to the passenger side of the car, and her mother lying unconscious in the street. When Marisa yelled, the two men fled on foot. After a cell phone found in the vehicle was traced to Jolonta Little, police arrested Mr. Little on a juvenile absconder warrant and brought him to a Metropolitan Police Department station for questioning eight days after the incident. The interrogation was videotaped, and Mr. Little confessed to the carjacking at issue in this case approximately two hours into the more than five-hour-long videotape.
As one detective put it, Jolonta Little's day began on September 27, 2008, when police "bang[ed] [his] door down at 7:00 in the morning and drag[ged] [him] out of bed while [he was] still in [his] drawers." By 8:37 a.m., Mr. Little, who had just turned eighteen the month before, was sitting alone in a small interrogation room, on a metal chair, with one wrist chained to
Several minutes into the videotape Detective Joe Crespo entered the room, followed some time later by Detective Dailey. Near the beginning of the interrogation, Detective Crespo read Mr. Little his Miranda
Detective Crespo read Mr. Little his rights, then told him that "if you want to find out more about what we think we know, you're going to have to agree to answer questions." Mr. Little hesitated, then said he would agree "as long as you all let me stop when I say I ain't ready—I don't want to talk," to which Detective Crespo responded:
After Detective Crespo instructed him to sign the form waiving his rights—"and I need you to sign it right there. What position you play in football?"—Mr. Little signed the form and the two then discussed football. At other points throughout the interrogation, the detectives talked to Mr. Little about other topics besides the offenses they suspected him of committing, including his son, his girlfriend, his Muslim religion, his hope to get his GED, his mother—"[Y]our mom loves you to death. . . and now she doesn't have a son"—and the money his mother regularly gave him from a monthly check she received that somehow pertained to Mr. Little's learning disability. The detectives also inquired about Mr. Little's comfort, asking whether he had to use the bathroom and whether he was "all right," and offering to get him food from McDonald's.
Early on in the interrogation, the detectives sought to convince Mr. Little that they already had enough evidence to prosecute him for the offense—that, in the words of Detective Crespo, "we got you by the balls," "the chances of you getting charged with robbery are very high," and "this case is easy, and there's a very good chance you're going to get convicted of this, okay?" One piece of this evidence
As Mr. Little continued to deny being involved in any robbery, the detectives tried persuading him that he was going to be convicted no matter what,
While Detective Crespo noted that it was "illegal" for a detective to promise that Mr. Little's charge would be dismissed, he said that he had been working with the U.S. Attorney's Office for eighteen years, that "they've grown to expect the kind of work that I do," and that if Mr. Little talked, "the U.S. Attorney's Office will be able to do something to hook you up." In that same vein, Detective Dailey stated, "I'm trying to be straight up with you so that you can try to save your life. I don't want to see a young man go to jail." When Mr. Little seemed doubtful, Detective Crespo asked, "Are you out of your mind?" and told Mr. Little about a man he arrested on his third gun charge in two years who was "walking the street" "[b]ecause he decided to tell us what happened." Detective Dailey added: "There's plenty of people walking the street today that have done more horrible things than you." As the detectives pressed the theme that "this is your opportunity," that "[t]his is where you help yourself," and that confessing was a way to avoid spending forty-five years in prison and coming out "a broke down old man" whom "no girl is going to want" "with a long criminal record trying to get a job," Mr. Little continued to deny having robbed anyone.
At various points throughout the interrogation the detectives offered Mr. Little excuses for his involvement in the carjacking. Referring to Mr. Little as a "good kid caught up in some bad shit," Detective Dailey said that "8th and R"—where Mr. Little said he hangs out—"is a rough place," and "whether or not it's just a matter of you caught up with the wrong crowd, who you were with, something happens, you know, you might just be there, you know." He continued: "I don't think you're a dangerous guy. I think you just got caught up in some shit. . . . We're trying to work with you and trying to help you, but you got to help yourself a little bit." Mr. Little continued to deny any involvement in the offense.
The detectives also imparted another kind of warning. That is, if Mr. Little did not help himself and confess, he would go to jail—where "[t]here's a big difference between being an adult and being a juvenile"—and he would face the same risk of being sexually assaulted that another man he knew well—his godbrother, Wee Wee—had recently faced. "You know Wee Wee down at LeDroit Park? You know what happened to him when he got locked up?" Detective Crespo asked. "The day Wee Wee went to jail, you know he's an adult now. Somebody sexually assaulted him. That's not how you want to live your life. You ain't no Wee Wee." In a similar vein, the detectives also indicated that if he did not confess and cooperate, he would be convicted and possibly be incarcerated far away in a prison while his girlfriend would forget him and be "laid up in the bed spooning somebody else" and his son would never visit him: "Maybe you're going to another state"—"How often is Jaylen going to come see you?"
The officers' final tack began when Detective Crespo stated that if Mr. Little confessed, he would arrange "to sit and meet with your attorney . . . before I get an arrest warrant for you." "So where my attorney at?" Mr. Little asked. "You pick one after you go to arraignment," Detective Crespo responded, continuing that he could "set up a meeting for you, your attorney, the prosecutor and us," but before he did so, "I got to have a reason for that to happen, and that reason is going to have to be you telling me what happened that day when that lady got robbed." Mr. Little said, "See, but I'm trying to have that meeting set up though," to which Detective Crespo responded that he promised to arrange the meeting, but "I need to have some meat to put on the table before I set up a meeting."
Mr. Little moved before trial to suppress the confession on the grounds that he had not voluntarily waived his Miranda rights or voluntarily confessed. No witnesses
At trial, the government presented evidence that Camilla Deline was assaulted by two young men who tried to take her car and who left behind a cell phone that belonged to Mr. Little. Neither Ms. Deline nor her daughter could identify Jolonta Little as one of the carjackers, but the jury heard evidence that Mr. Little had confessed to the crime. After a three-day trial, the jury found Mr. Little guilty of carjacking, robbery, and aggravated assault.
In his brief on appeal, Mr. Little challenged the denial of his motion to suppress on grounds that his waiver of his Miranda rights was involuntary, that his Miranda rights were violated when police ignored his assertion of his right to counsel later during the interrogation, and that his confession was rendered involuntary by various coercive tactics. After the government argued in its response that Mr. Little had waived his claim that he invoked his right to counsel by failing to raise the issue in the trial court, we stayed the appeal while counsel for Mr. Little filed a motion in the trial court alleging that Mr. Little's trial counsel was ineffective in that regard. The trial court denied that motion, ruling that trial counsel was not ineffective in failing to raise the claim at the suppression hearing because Mr. Little did not unambiguously invoke his right to counsel during the interrogation. The court noted that "at best, a reasonable police officer would have understood that the suspect might be invoking the right to counsel" and that "he wanted a lawyer present before answering any more questions." But Mr. Little might also have merely been "asking about his lawyer's whereabouts or whether one had been provided" so that he could evaluate the detectives' offer to work out a deal after Mr. Little confessed.
Mr. Little contends in this now consolidated appeal that the trial court should have suppressed his statements because, among other reasons, they were involuntary and obtained in violation of his Fifth Amendment rights.
Before a confession may be admitted in evidence, the government bears the burden to prove by a preponderance of the evidence that a defendant's statements were given voluntarily. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972). "The test for determining the voluntariness of specific statements `is whether, under the totality of the circumstances, the will of the [suspect] was overborne in such a way as to render his confession the product of coercion.'" United States v. Turner, 761 A.2d 845, 854 (D.C.2000) (quoting Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). In deciding whether
The facts most pertinent to the voluntariness issue in this case—those contained in the video recording of the interrogation—are undisputed,
About two hours into the videotape of the interrogation, after Mr. Little had repeatedly and steadfastly denied involvement in the carjacking, Detective Crespo resorted to a strategy that differed from the methods the two detectives had employed up to that point. He asked Mr. Little if he knew what had happened to a man named Wee Wee "when he got locked up"—"you know he's an adult now." Detective Crespo suggested that Mr. Little needed to confess to avoid "what happened to" Wee Wee, which is that "[t]he day Wee Wee went to jail"—stressing loudly that this happened the day Wee Wee arrived— "[s]omebody sexually assaulted him." Mr. Little told the officers that Wee Wee was his godbrother, and Detective Crespo asked Mr. Little again if he had "heard what happened to him"—that "[s]omebody tried to sexually assault him." Underscoring the connection between confessing and steering clear of Wee Wee's fate, Detective Crespo said "[t]hat's not how you want to live your life," "[y]ou ain't no Wee Wee," and "that's no place for you to be." These statements echoed the detectives' previous comments in which he urged Mr. Little to give police "an opportunity to help you instead of incarcerate you" and noted that "now you're going to be sitting there in jail with a whole bunch of grown men because. . . you didn't want to say anything."
The threat of physical violence the detectives posed here was decidedly credible. The kind of sexual assault Detective Crespo told Mr. Little he risked had happened very recently to someone Mr. Little knew well, on the day he was sent to jail, in circumstances similar to those in which Mr. Little found himself and, according to Detective Crespo, it could well happen to Mr. Little if he did not confess. Mr. Little was in some respects uniquely susceptible to coercion of this sort given his youth, his inexperience in the adult system (like Wee Wee, who was "an adult now"), and how close to home this threat involving his own godbrother hit. See Brisbon v. United States, 957 A.2d 931, 945 (D.C.2008) (stating that interrogation tactics are more likely to be coercive when they are "used on a suspect particularly susceptible to police pressure"). Detective Crespo made a point of noting that Mr. Little was "not as hard" as Wee Wee, yet even Wee Wee had become the victim of sexual assault.
Immediately after Mr. Little was threatened with the prospect of being sexually assaulted in jail, the officers' coercive tactics culminated when Detective Crespo told Mr. Little that unless he confessed, he could not have a lawyer assist him in making a deal with the government. This colloquy, which ended with a confession, began when Mr. Little asked Detective Crespo when he was going to get the arrest warrant signed:
The upshot of Detective Crespo's statements was that Mr. Little's right to a lawyer in the circumstances in which he found himself was conditioned on his confessing. That is, contrary to Detective Crespo's earlier assurance that Mr. Little had "the right to talk to a lawyer for advice before [police] question[ed him]" and to have the lawyer "with [him] during questioning," here Detective Crespo made clear that the meeting Mr. Little was "trying to have . . . set up" with his lawyer would not happen unless he confessed, and that in any event—confession or no confession—he would not see a lawyer until "after. . . arraignment." Any assumption of continued voluntariness that stemmed from Mr. Little's signing of the Miranda rights form faded when the police redefined his right to consult with counsel by imposing very real restrictions on that right—not until "after . . . arraignment," and not until he put "some meat . . . on the table." Such "wrongful disregard of [a suspect's] rights and persistent badgering" are "unquestionably coercive in nature." Dorsey v. United States, 60 A.3d 1171, 1203 (D.C.2013) (en banc); see also Bond v. State, 9 N.E.3d 134, 141 (Ind.2014) (holding that intentionally misleading a suspect regarding his constitutional rights to a fair trial and an impartial jury rendered that suspect's confession involuntary).
The trial court agreed, in ruling on Mr. Little's motion under D.C.Code § 23-110 (2012 Repl.), that Mr. Little was asking "whether [a lawyer] had been provided" so that he "could evaluate the officer's offer" to "hold off getting an arrest warrant. . . before the detectives had a discussion with his lawyer, presumably to work out a cooperation deal." Yet what the videotape also shows is that the negotiation was going on right then, during the interrogation, and that Detective Crespo was urging Mr. Little not just to confess but to "work out a deal." As Mr. Little's interrogator was pressing him to make a deal, Mr. Little appeared interested in exploring that deal with a lawyer right then. The pressure had mounted since he waived his rights, and he no longer wanted to go it alone. For purposes of the voluntariness analysis, even if Mr. Little did not unambiguously invoke his right to counsel,
Even if the detectives' sexual assault references were not inherently coercive, the videotape shows how efficiently the combination of this tactic and the detectives' statements about meeting with a lawyer broke down Mr. Little's at first unmistakable determination not to incriminate himself and thus supports a conclusion that these tactics had an actual coercive effect on Mr. Little.
When Detective Crespo told Mr. Little the news about "what happened to [Wee Wee]" "[t]he day [he] went to jail," the change in Mr. Little's bearing was demonstrable. As he shifted in his chair, he stated in a low voice, "[T]hat's my godbrother." Within roughly one minute after the conversation about Wee Wee, Mr. Little made a point of saying that he did not rob anybody "on Georgia Avenue"—as opposed to T Street, the location of the robbery in this case—and then said he "didn't rob that lady" on T Street in a way that suggested he may have been present but was not the actual robber. Shortly thereafter, when Detective Crespo pressed him repeatedly to name his accomplice, he squirmed back in his chair and murmured, "I don't know, man. I don't know, man. I don't know, man," causing Detective Crespo to respond, "Jolonta, you're this close." Moments later, Detective Crespo shifted the conversation to the logistics of meeting with his attorney and making a deal. The imminence of Mr. Little's confession in the wake of these combined strategies bears out their coercive effect.
While the detectives' use of Wee Wee's sexual assault and their handling of Mr. Little's question about his attorney stand out as the most coercive aspects of the interrogation in this case, there were other deceptive tactics in play during Mr. Little's questioning, and our case law instructs us to consider "threats or trickery" in evaluating the nature of the interrogation. See In re J.F., 987 A.2d at 1177. In Dorsey, for example, we condemned such "overreaching tactics" as "the detectives' warnings to Dorsey that he would suffer adverse consequences if he insisted on consulting counsel and exercising his constitutional rights, their provision of dubious legal advice to sway Dorsey's judgment, and their suggestions as to what story Dorsey could tell to minimize the gravity of his crimes"—tactics that surfaced to varying degrees in Mr. Little's interrogation. See 60 A.3d at 1204 (noting that if Dorsey had "given in and confessed during the first round of his interrogation, we would find it impossible to conclude that he made a voluntary waiver or confession"). "When the officers who question a suspect by using trickery demonstrate an `undeviating intent . . . to extract a confession. . . the confession obtained must be examined with the most careful scrutiny.'" Brisbon, 957 A.2d at 945 (quoting Spano v. New York, 360 U.S. 315, 324, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959)); Beasley v. United States, 512 A.2d 1007, 1015 (D.C.1986) (likewise noting that "[t]he use of deception or trickery by police during an interrogation" is "subject to close scrutiny"). It is true that such deception "does not in and of itself render an otherwise voluntary confession invalid," id., and our case law is brimming with cases rejecting appellants' voluntariness claims where the interrogating officers exaggerated the evidence against a suspect, for example, or made up evidence altogether. See, e.g., Dorsey, 60 A.3d at 1206; Davis v. United States, 724 A.2d 1163, 1168 (D.C.1998); Contee v. United States, 667 A.2d 103, 104 (D.C. 1995).
As to many portions of the interrogation, the present case could be added to
But one deceptive tactic—the threat of prosecution of crimes the officers openly admitted they did not think Mr. Little committed, particularly one involving the shooting of a police officer—strikes us as different in kind. The government contends that Detective Crespo's promise to show Mr. Little's photograph to all the robbery victims in the area was not a threat to Jolonta Little "but an explanation of how the investigation would continue without his confession." But Detective Crespo's comment that "[m]aybe you didn't do them, but what if they pick you?," his stated intention to pursue these investigations only if Mr. Little did not cooperate, and the detectives' stakes-raising reference to a police officer being shot during one of the unsolved robberies have no ostensible purpose other than to scare Mr. Little with the prospect of being falsely accused of unrelated robberies, perhaps a lot of them, if he did not confess to this carjacking. See Holland v. McGinnis, 963 F.2d 1044, 1052 (7th Cir.1992). Although Detective Crespo conceded, "I don't think you shot at a cop," Detective Dailey was quick to inform Mr. Little that the "suspect meets your description." This kind of pressure to confess is tantamount to the fear of extrinsic adverse consequences that our decision in Brisbon recognized could prompt an innocent person to confess. See Brisbon, 957 A.2d at 945; see also United States v. Villalpando, 588 F.3d 1124, 1128 (7th Cir.2009) (stating that it is "necessarily coercive" for the police to engage in "conduct that influences a rational person who is innocent to view a false confession as more beneficial than being honest," so "our task is to examine whether [the suspect] was not able to make a rational decision due to promises made by the interrogating detective").
The government contends in its brief that "the non-coercive nature of the interview is best reflected by appellant's comfort in talking with the detectives." And indeed, numerous factors might suggest, at least on a superficial level, that Mr. Little was not distraught or unnerved. He had experience with the criminal justice system prior to this point, albeit only as a juvenile.
Behavior is an appropriate consideration, but "a suspect's demeanor is susceptible to many interpretations and cannot be held determinatively against him." In re J.F., 987 A.2d at 1179 n. 23. On this record, these considerations—that is, an 18-year-old's seeming intent to betray no weakness or hint of vulnerability to the police officers who otherwise have him chained to the floor—do not satisfy the government's burden to demonstrate the voluntariness of Mr. Little's confession. Even if we read a great deal into his level of engagement with the detectives and assume a familiarity with the adult system based on matters Mr. Little had in juvenile court,
The interrogation of suspects "is undoubtedly an essential tool in effective law enforcement," Haynes, 373 U.S. at 515, 83 S.Ct. 1336, and it is beyond serious question that hard-hitting tactics in and of themselves do not render involuntary any statements elicited by those tactics. See In re J.F., 987 A.2d at 1178 (agreeing with the government "that officers will sometimes need to be aggressive in their investigation of crimes" (internal quotation marks omitted)). Yet in this case, where police were interrogating a teenage suspect who was chained to the floor in a small stationhouse interrogation room, where they instilled in him a fear of being raped in jail, where they played up the risk that he would be prosecuted for myriad robberies they did not suspect him of committing, and where the suspect emphatically denied he had robbed anybody until police told him, when he inquired "So where my lawyer at?," that he had to confess before he could arrange a meeting with his lawyer, the combination of the timing and the nature and intensity of these tactics leads us to the conclusion that the confession was not voluntary, that its centrality to the government's case precludes
Having concluded that the trial court erred in admitting Jolonta Little's confession at trial, we reverse Mr. Little's convictions and remand this case for a new trial.
So ordered.