Opinion
ID#: 9908026980.
Submitted: July 7, 2000.
Decided: October 31, 2000.
Upon Defendant's Motion to Suppress — DENIED
Mark Bunitsky, Deputy Attorney General, Carvel State Office Building, 820 North French Street, 7th Floor, Wilmington, Delaware, 19801.
Andrew Vella, Deputy Attorney General, Carvel State Office Building, 820 North French Street, 7th Floor, Wilmington, Delaware, 19801.
Thomas Pedersen, Esquire, 1201-A King Street, Wilmington, DE 19801. Attorney for Defendant.
Kevin J. O'Connell, Esquire, 831 N. Tatnall Street, Suite 200, Wilmington, DE 19801. Attorney for Defendant.
OPINION and ORDER
This is a capital murder case. Johnson awaits trial, accused of killing Theodore Smallwood by shooting him six times with a .40 caliber handgun. Initially, when he was taken into custody and after he had been Mirandized twice, Johnson denied the shooting. Several hours later, a police detective accused him of being a "cold-blooded killer." Johnson denied that, but he admitted the shooting and he claimed that Smallwood was armed. Then, Johnson was Mirandized a third time and he gave a formal statement admitting, again, that he shot Smallwood and suggesting that it was in self-defense. Johnson also told the police where to find the murder weapon. Now, Johnson concedes that his first statement to the police is admissible. He has moved to suppress his second and third statements on the ground that he should have been re- Mirandized before the police spoke to him the second time. The Court must examine the circumstances surrounding Johnson's interrogation.
I.
For the moment, the facts surrounding Smallwood's death are less important. At the suppression and proof-positive hearings, a tentative picture emerged. In summary, the State contends that there was bad blood between Johnson and Smallwood. Supposedly, a few days or the day before the shooting, Smallwood had stabbed or cut Johnson during a confrontation. According to Johnson, as discussed below, Smallwood may have been armed with gun. The State implies that Johnson fatally evened the score in the early morning of August 28, 1999. Although the State has not revealed any eyewitness, it claims that at approximately 1:00 a.m. people in the vicinity of the 200 block of West 29th Street in Wilmington heard shots. Someone called the police and they found Smallwood lying on a sidewalk, mortally wounded. Before he was removed to the hospital where he died, Smallwood told the police "Johnny did it." Smallwood also said that his assailant drove a white Acura Legend automobile and the assailant was wanted for a robbery. The police quickly developed Johnson as a suspect and they allegedly found witnesses who confirmed that Johnson was in the area, driving an Acura. The police were unable to find the murder weapon. The police also learned that Johnson was a fugitive. Warrants were outstanding in Dover for attempted murder and robbery.
This decision turns on the facts surrounding Johnson's apprehension and interrogation. A few minutes after 6:50 a.m., on August 29, 1999, Johnson was arrested at gunpoint. The police entered an apartment near Newark and discovered Johnson hiding in a closet. As soon as he was found, Johnson was ordered face down on the floor. According to the arresting officer, "In a matter of seconds [Johnson] was handcuffed and then orally advised of his Miranda warnings." Johnson was not questioned in the apartment. Instead, the police took him to headquarters in Wilmington. He was placed in a 10' x 10' interview room and left handcuffed by one arm to a chair.
At 12:44 p.m., almost five hours after his arrest, the police formally questioned Johnson about Smallwood's shooting. Before the interview, the police offered Johnson a soda and, for a second time, the police advised Johnson about his right to remain silent and his right to counsel. The detective carefully explained Johnson's Miranda rights. He told Johnson that he was "investigating the crime of murder." Johnson then signed a waiver of rights form. Although Johnson claims to have used drugs during the night before his arrest, there is no reason to conclude that Johnson was under the influence when he was arrested and questioned. At first, Johnson told the police that he thought he was in custody because he was wanted in Dover. The detective, however, made it clear that he was investigating Smallwood' s shooting.
Initially, Johnson told the police that he was in Philadelphia with a woman named Tasha when Smallwood was killed. After the police pressed Johnson for details about his alibi and they told Johnson about the case they were building against him, especially Smallwood's dying declaration, Johnson changed his story. He admitted being in Wilmington, but he continued denying the shooting.
The first interview was videotaped. It lasted two hours and fifteen minutes. At no point did Johnson revoke the waiver of his rights. After the interview ended at 2:59 p.m., Johnson was left alone, more or less, in the interview room. Officers checked on him periodically and he used the bathroom at 4:45 p.m. But mostly, Johnson slept on the floor until 7:30 p.m. So long as he was in the interview room, Johnson remained handcuffed to the chair.
At approximately 7:30 p.m. Johnson was awakened. A detective entered the interrogation room. The detective did not record what happened initially, but it largely is agreed that the detective confronted Johnson. The detective displayed autopsy photographs on the desk and told Johnson, "You're a cold-blooded killer." At that point, according to the police, Johnson was awake and alert. The Court has seen the photographs. They are unpleasant, but they are not particularly gory and shocking. As he calmly looked at them, Johnson allegedly said, "I ain't no cold-blooded killer. I thought the m______ f___er had a gun." That unrecorded exchange took, at most, three minutes.
The detective then left the interview room and he put a tape into the video cassette recorder. He returned and with the video recorder running, the detective re-advised Johnson about Miranda. After the detective reviewed the Miranda waiver form with him, Johnson signed it. The Court does not know whether Johnson thought that his statements were being recorded. The detective clearly was taking notes on a legal pad, but it seems that the video recording equipment was hidden.
In any event, Johnson appears tired during the final interview. He yawns near the beginning and he yawns after the interview is over. But Johnson never complains about being tired. Nor does he suggest in any way that he fears the police or his predicament. Johnson has a can of soda and he is composed. He and the detective speak in soft, conversational tones. At least on tape, the police officer is non-confrontational. He calmly asks matter-of-fact questions and Johnson answers them calmly and responsively. The atmosphere is business-like, yet relaxed. After the interview had lasted approximately 25 minutes, the detective asks Johnson, "Okay, is there anything else you can tell me? Anything else you want to add? Did we miss anything?" At that point, Johnson continues offering details, so the interview resumes. A few minutes later, the detective again brings the questioning to an end and he spends a few moments silently finishing his notes. Then, as the detective starts to rise, Johnson volunteers that he "got off seven shots."
In summary, while Johnson admitted shooting Smallwood, he suggested that it was not planned. To the contrary, he told the detective that he happened on Smallwood by chance and was surprised when Smallwood "jumped up" as Johnson was walking nearby. Further, Johnson suggested that Smallwood had a knife or a gun: "I seen something black coming out of his pocket." "I'm thinking, . . . he's getting ready to kill me or something." Not only did Johnson claim that the shooting was unpremeditated, he portrayed himself as having fired wildly as he was moving away from Smallwood. Johnson agreed with the detective that Johnson did not even aim as he fired. During his statement, as mentioned above, Johnson told the police exactly where he hid the gun. Using that information, the police returned to the apartment in Newark and seized the weapon.
When he was questioned, Johnson was 20 years old. He had an 11th grade education and an extensive criminal history. It appears that by then, he had been arrested 35 times, starting when he was roughly 13 years old. Although the record is not clear, it is likely that this was not the first time that Johnson had heard the Miranda warnings, nor the first time he had been questioned by the police. It could not have been the first time he was handcuffed and taken to a police station.
II.
As mentioned, Johnson concedes that his initial interrogation was proper and he does not challenge his initial stories' admissibility. But Johnson contends that, under the circumstances, the police were required to re-advise him of his Miranda rights before the second, confrontational interrogation. Johnson primarily emphasizes the hours that passed between his arrest, the first interview and the second interrogation. He also emphasizes the fact he was handcuffed and held in a windowless room for hours. Johnson also draws attention to the fact that he had been awakened shortly before he was confronted with the autopsy photographs. Johnson claims that "he was worn down by the fact that he remained in the same location [and handcuffed] for over twelve hours." Johnson further claims he was left to believe that the only possible way to emerge from his intense isolation would be to provide an inculpatory statement to the investigators.
Because, in his view, the first statement implicating himself in the shooting was the product of police coercion, the video taped statement that he gave moments later is unusable. According to Johnson, the third and final Miranda warnings came too late. By then, the Constitutional damage had been done.
The State responds that, under all the circumstances, the police were not obligated to re- Mirandize Johnson before confronting him as a "cold-blooded killer." The State tacitly concedes that the time lapse between Johnson's arrest and initial interrogation on the one hand, and Johnson's second and third interrogations on the other hand is more substantial than usual. The need for additional Miranda warnings, however, is not entirely a function of time. The State emphasizes the fact that the interrogation took place at the same place and by the same questioner. On balance, according to the State, there was no overreaching or coercion that renders any of Johnson's statements inadmissable.
United States v. Woodward, 13 F.3d 408 (10th Cir. Kan. 1993) (TABLE), cert. denied, Woodward v. United States, 511 U.S. 1041, 114 S.Ct. 1564, 128 L.Ed.2d 210 (1994) (Six hour interval upheld); United States ex ret. Henne v. Fike, 563 F.2d 809 (7th Cir. 1977), cert. denied, 434 U.S. 1072, 98 S.Ct. 1257, 55 L.Ed.2d 776 (1978) (Nine hour interval upheld); Mitchell, 982 P.2d at 720-722 (Eleven hour interval upheld).
III.
This case involves a suspect who never invoked his rights. Accordingly, the Court does not need to address the many cases involving suspects who had changes of heart. Ledda v. State establishes a non-exclusive list of factors to be considered when deciding whether a non-invoking suspect must be re- Mirandized. According to Ledda:
Del. Supr., 564 A.2d 1125, 1130 (1989); see also DeJesus v. State, Del. Supr., 655 A.2d 1180, 1195 (1995).
Several factors must be considered when determining whether Miranda, once given, must be re-administered, including the time lapse since prior warnings, change of location, interruptions in interrogation, whether the same officer who gave the warnings also interrogated, and significant differences of statements. (Citations omitted.)
Taking the Ledda factors into consideration, the Court is satisfied that the police did not need to warn Johnson a third time when the detective accused Johnson of being a "cold-blooded killer." The interval between interrogations was significant, but the interrogation was in the same room, on the same subject and by the same questioner. Johnson's statement changed in the sense that he abandoned his alibis and he directly implicated himself in the shooting. Nevertheless, Johnson continued denying culpability. To be sure, Johnson backed away from his initial denials. In his second and third statements, however, Johnson seems to be attempting to establish more tenable lines of defense, lack of intent and justification.
The Court is disappointed, again, that for one reason or another the police did not record the most important moment in an interrogation. This time, the tape ran out and besides, the detective did not expect a confession. There always is some plausible explanation for why a critical moment was not recorded. The Court takes this opportunity to condemn off-camera interviews and pre-interviews. "Whether it is intentional or careless, selectively recording suspects" statements is challenging to the courts. It is particularly troubling in a capital murder case.
In this instance, the Court is satisfied that the failure to record the confrontational interrogation is not critical. An acceptably clear picture can be developed from the testimony at the suppression hearing and, most importantly, from the final video tape. The record simply does not support Johnson's claim that he was "worn down" and desperate. The final tape shows a composed, street-wise suspect who unhesitatingly is taking a different and better tack. Johnson is neither smooth nor polished in his defense, but he does not look or act like someone being victimized by police coercion or overreaching. It seems that Johnson realized that his alibi would not hold up. So, his final admission that he was involved in the shooting was a tactical concession that enabled him to claim not only that the killing was unintentional, it was in self-defense. In that regard, the truth remains to be seen. Taking everything into account, including the facts that are unfavorable to the State, Johnson's final statements do not appear to be the product of police misconduct and they are knowing and voluntary.
In contrast to the courts' general reluctance to insist on re-warning suspects, there is United States v. Marc. That case is not helpful. First, the interrogation followed the suspects' illegal detentions. Second, defendant Paul was arrested for a minor drug charge. Then he was questioned about stolen property and guns. Finally, "10 hours after the illegal stop, defendant Paul allegedly was re-Mirandized. . . ." In suppressing Paul's statement, Marc focuses on the court's "concerns" about "the length of the custody, the absence of any specific corroborating evidence as to waiver, and the escalating nature of the charges. . . ." Meanwhile, defendant Marc was questioned by different officers about different charges. The interrogation was interrupted. "Consequently, there are significant differences in the statements given in the several interviews."
United States v. Smith, 679 F. Supp. 410 (D.Del. 1988); State v. Siple, Del. Super., Cr. A. Nos. IN94-12-1641 to IN94-2-1672, Cooch, J. (July 19, 1996) (Mem. Op.); Kaolo v. State, Nos. A-6616, 3875, 1998 WL 950971 (Alaska Ct.App. Aug. 26, 1998); Mitchell v. State, 982 P.2d 717 (Wyo. 1999); Commonwealth v. Padgett, 1997 WL 1366843, No. 96331, (Mass.Super.Ct. Dec. 24, 1997).
United States v. Marc, D.Del., Cr.A. No. 96-76-SLR, Robinson, J. (Mar. 18, 1997) (Mem Op).
Id. at 8.
Id.
Id. at 9.
As discussed above, Johnson was arrested properly. He was questioned by a single interrogator, in the same place and about the same crime. And as discussed above, the differences between Johnson's first statement and his final one seem calculated, as opposed to coerced. Finally, while Paul's and Marc's backgrounds are unknown, Johnson's criminal history is a matter of record.
As noted above, the state and federal authorities opposing Marc are legion. No court has ever suppressed a statement under circumstances like the ones in this case and this Court is satisfied that suppression of Johnson's final statements is unjustified.
IV.
For the foregoing reasons, Defendant's motion to suppress the statements that he gave on August 29, 2000 is DENIED. At this point, the Court understands that Defendant has a pending motion in limine to prevent the State from introducing Smallwood' s dying declaration and a pending motion to compel the State to turn over information about Smallwood' s violent propensities. The parties are required to report to the Court on whether those matters are ripe for decision and whether there are any other pending matters.
IT IS SO ORDERED.