Opinion
ID. No. 0504010190.
Submitted: March 4, 2008.
Decided: April 7, 2008.
On Remand from Defendant Andrew Brown's Appeal of Criminal Conviction.
Jerome M. Capone, Esquire, Law Office of Jerome M. Capone, Wilmington, Delaware, Attorney for Appellant.
Timothy J. Donovan, Jr., Esquire, Martin O'Connor, Esquire, Department of Justice, Wilmington, Delaware, Attorney for Appellee.
MEMORANDUM OPINION
PROCEDURAL CONTEXT
Defendant Andrew Brown was indicted on charges of: (i) First Degree Murder (2 counts); (ii) First Degree Robbery (2 counts); (iii) companion weapons offenses (4 counts); and Conspiracy. Following a six-day jury trial, Brown was found guilty on all charges. On August 25, 2006, Brown was sentenced to life in prison without parole.
Brown appealed his conviction to the Delaware Supreme Court. On December 17, 2007, the Court remanded the case to the Superior Court. On March 4, 2008, this Court held a supplemental suppression hearing to garner additional facts.
STATEMENT OF FACTS
Steven Cleveland was shot and killed in Wilmington in March 2005. The Wilmington Police Department investigated the homicide. The WPD determined Brown killed Cleveland. Brown left Wilmington shortly after the murder. Following a search over several months, Brown was arrested as a fugitive in New York by a joint task force of Federal Marshals and the New York Police Department.
On June 28, 2005, WPD Detectives Donna DiClemente and Anthony Bowers, drove to New York to interrogate Brown. The majority of the interrogation was audio taped. Brown was informed of his Miranda rights and waived his rights on tape. During the interrogation, Brown made several incriminating statements, but did not confess to the killing of Cleveland. Brown did not have a lawyer present. The NYPD was not involved in the interrogation.
After the WPD interview, NYPD officers transported Brown to the central booking station in New York. The NYPD officers were not informed by DiClemente or Bowers of what transpired during the interrogation and were not familiar with the factual allegations in the case. The officers did not question Brown at any time. During transportation, Brown told the NYPD officers:
She [DiClemente] stated that the reason I shot Steven Cleveland was because he wouldn't do what I wanted him to do. She doesn't know what she is talking about. That's not why I shot him. If you were there and looked at his body, you would have seen he was doing exactly what I wanted him to do, taking off his clothes, as you can see his pants were down to his knees when they found him. I shot him because he wasn't doing it fast enough.
On May 15, 2006, the Court held a suppression hearing. Brown sought to suppress both the interrogation and the later statement to the NYPD officers. The State conceded that the statements made during the interrogation must be suppressed. Thus, the hearing focused on Brown's statement made to the NYPD officers during transportation. At the conclusion of the hearing the Court ruled from the bench, denying the suppression motion as to the statement made to the NYPD officers:
I think it is a factual question as to whether or not there's been a sufficient separation between the interview and the unsolicited utterance.
As I already said, I do find that the statement was not made as part of any interrogation, custodial or otherwise. I credit the testimony of the two officers when they stated that they did not say anything to the defendant.
I am not going to suppress the statement. I'm going to deny the motion for several reasons:
First of all, I find that what the defendant commented on was what Detective DeClemente told the defendant and not to clarify what the defendant had told Detective DeClemente. Therefore, it was not part of a clarification of any statement that the defendant made at the interrogation, which was suppressed.
I also find that although the time between the interrogation and the statement is relatively short (I think all the parties testified that it was within the range of about 5 to 10 minutes), the interrogating detective had left. It was two different officers. The entire situation was different. The defendant was not only removed from the building, but was being transported. It would be clear to any reasonable person that the interrogation had ceased.
There's no evidence of coercion at the time the statement was made. Indeed, both officers who were in the car testified that they were unaware of the content of the interview; and, in fact, the New York Police Department detective testified that he — I should say both testified that they, under their own procedures, would not have conducted an interrogation at that point, but rather would have preferred to have it under more optimal circumstances in police headquarters.
The fact that the defendant was a juvenile at the time does not affect my ruling. I do find that the age of the defendant is relevant. He was 17. He had obviously had some contact with the criminal justice system. He, himself, stated that he did not like cops. Obviously, he has had some experience with police officers, and he also had been advised of his rights, although the police did continue to interrogate after that. So that factor, I think, is a neutral factor-the fact that he had been given his Miranda rights. But I find that not to be dispositive because this was an unsolicited utterance.
All right. That concludes my ruling, the motion to suppress is denied.
After Brown was tried and convicted, he appealed the admission of the spontaneous utterance. Brown argued that the initial interrogation by the WPD provoked his confession to the NYPD. The Supreme Court "encountered some difficulty determining what exactly happened at the initial interrogation." The Supreme Court decided that the record was not adequate to address Brown's claim. The Supreme Court remanded the case "for a further factual inquiry focused on whether the police deliberately elicited Brown's statement" in violation of the 6th Amendment:
Brown v. State, 2007 WL 4374188, at *2 (Del. 2007).
The question that must be addressed on remand is whether, by making whatever remarks she did, DiClemente, during her WPD interrogation, "intentionally creat[ed] a situation likely to induce [Brown] to make incriminating statements" after the unconstitutional WPD interrogation ended. The trial judge must consider whether any actions by DiClemente were deliberately designed to elicit Brown's incriminating remarks. If DiClemente intended that Brown respond to her question at any time after he had requested counsel, the statement must be suppressed as a "deliberate elicitation."
At least one interpretation of the incomplete factual record would support an inference that DiClemente deliberately elicited Brown's response. In particular, we are concerned how DiClemente made her final accusation followed by an immediate and sudden end to the interrogation signaled by the unidentified taped voice. This tactic might have been purposefully coercive and supports an inference that DiClemente deliberately intended to elicit a response from Brown. Under this possible interpretation of the transcript, DiClemente interrogated Brown in blatant disregard of his Sixth Amendment rights, heatedly accused him of committing murder, and cut him off before giving him an opportunity to respond. Suddenly, at his first opportunity to speak after the abrupt end to the interrogation, Brown anxiously — and perhaps compulsively — explained to the NYPD officers how DiClemente "had it all wrong," and then "confessed" to the murder while correcting the accusations about him at the initial interrogation. If a full record supported this account, one could rationally conclude that WPD "deliberately elicited" Brown's utterance to the NYPD.
In order for the trial judge to admit Brown's NYPD statement, the State must introduce additional evidence about the interrogation that would support a conclusion that despite its connection to comments made in the initial interrogation, the WPD officers did not deliberately elicit further comment by Brown after he invoked his right to counsel. As we have explained above, the transcript, alone and without more, does not carry the State's burden to show that DiClemente did not deliberately elicit Brown's statement.
United States v. Henry, 447 U.S. 264, 270 (1980).
United States v. Henry, 447 U.S. 264, 270 (1980).
During the hearing on remand, the State introduced additional evidence about the interrogation to support a conclusion that the WPD officers did not deliberately elicit further comment by Brown after he invoked his right to counsel. Brown also testified.
DISCUSSION
The Court must determine: (1) if Brown invoked his Sixth Amendment right to counsel; and (2) if, in disregard of this invocation, the WPD intended to deliberately evoke an incriminating response from Brown, not only during the interrogation itself, but also after the interrogation had ended when the defendant was in the custody of the NYPD.
The Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense." The Sixth Amendment "right to counsel is triggered at or after the time that judicial proceedings have been initiated . . . whether by way of formal charge, preliminary hearing, indictment, information, or arraignment." This initiation is not a "mere formalism," but the point at which the government has committed itself to prosecute. After the initiation of formal charges, the Sixth Amendment "guarantees the accused . . . the right to rely on counsel as a `medium' between him and the State." The State has an "affirmative obligation not to act in a manner that circumvents the protections accorded the accused by invoking the right to counsel."
Fellers v. United States, 540 U.S. 519, 523 (2004) (citing Brewer v. Williams, 430 U.S. 387, 398 (1977)).
Kirby v. Illinois, 406 U.S. 682, 689 (1972).
Maine v. Moulton, 474 U.S. 159, 176 (1985).
Id. at 171.
The government cannot intentionally create circumstances likely to induce the accused to make incriminating statements without the assistance of counsel. The Sixth Amendment is triggered when an officer makes statements that are targeted at the conscience of an accused in order to elicit an incriminating reply. However, the Sixth Amendment is not violated, "whenever by luck or happenstance — the State obtains incriminating statements from the accused after the right to counsel has attached." The defendant "must demonstrate that the police . . . took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks."
Henry, 447 U.S. at 274 (holding that placing an informant paid on a contingent-fee basis in the same cell pretending to be a fellow inmate, creates a situation "which brings into play subtle influences that . . . make [a defendant] particularly susceptible to the ploys of undercover . . . agents," despite the fact that the informant disregarded instructions not to initiate any conversation or pose any questions to the defendant).
See Brewer v. Williams, 430 U.S. 387, 405 (1977) (holding Sixth Amendment Right to Counsel was violated by police officer giving the "Christian Burial Speech" in a police car, to an accused who previously was advised by counsel to remain silent, and who also had told police he would tell them the whole story after he spoke with his attorney).
Moulton, 474 U.S. at 176.
Kuhlmann v. Wilson, 477 U.S. 436, 459 (1986) (holding that the Sixth Amendment was not violated by placing an informant in a jail cell with a formally charged accused, when the government refrains from employing "investigatory techniques that are the equivalent of direct police interrogation").
INVOCATION OF COUNSEL
Brown's Sixth Amendment right to counsel attached on April 18, 2005, when a grand jury indicted Brown on First Degree Murder charges. The Court must discern whether Brown invoked that right during the June 28, 2005 WPD interrogation.First Gap in Taped Interview
The interrogation tape begins with DiClemente stating the date, time, location and who was to take part in the interview. The tape then skips. When the tape starts again, Brown states: "Now, I'll only talk to you all if you all — if you all tell me that my brother going, it ain't nothing wrong with my brother."
DiClemente testified during the hearing on remand:
The defendant was in a jail cell when I arrived . . . I had turned on the recorder to say — to note the time, the date, and who was doing the interview, as well as where we were. There was a delay in the defendant coming in the room, so I turned the tape off until he came in. When he came in, I didn't immediately turn the tape on, and I guess I just got sidetracked just because we immediately started talking. And about a minute — possibly about a minute or two into the conversation, I turned the tape on when I realized I didn't have it on already.
DiClemente testified as to what occurred while the tape was off: "I introduced myself and Detective Bowers, which is kind of a routine thing to do. I explained why we were there, the charges that he was being charged with, and then, proceeded to read him Miranda. And, then, I turned the recorder on."
Back on tape, DiClemente asked if Brown understood his rights. Brown responded: "Yeah, I understand my rights but this charge, I ain't talking about nothing now, hell no." Although it appears Brown invoked his right to remain silent, immediately he continued speaking to the detectives:
You all don't got a gun, you all don't got a eye witness, you all got a person saying that I was there, they never seen me shoot nobody. You all, them bullets don't even got a print on them, you un . . . the bullets, when you left you shoot a gun, the bullet, once the bullet get hot, you lose the fingerprints. You don't get, you don't get trace no fingerprints . . . March 26th? When was that, March something? March — March 25th, you all said I did that? Huh? What was that March 25th?
Brown even engaged the officers, asking what date the shooting took place. Instead of answering Brown's question and before asking any questions, Detective DiClemente made sure Brown understood his rights. Brown responded: "Yeah, I understand them." DiClemente continued to individually read Brown's rights. It appears from the record Brown became agitated and stated: "You read them twice." DiClemente stated on tape:" "I understand that, but you said I don't want to talk to you and now you want to talk to your lawyer. . . ."
However, during the hearing on remand, DiClemente testified on direct examination that Brown never asked for a lawyer:
Q: Did he ever tell you prior to you saying that that he wanted to talk to a lawyer?
A. No.
Q: Do you know why you said that?
A: I think I just misspoke.
Q: Was there ever a time he said, "I want a lawyer?"
A: No, he never said, "I want a lawyer."
DiClemente's testimony was consistent on cross-examination: "I'm a hundred percent positive he never asked for an attorney." Detective Bowers was asked on direct examination if Brown ever requested a lawyer. Bowers responded: "No, sir. He never mentioned a lawyer at all." Bowers was not cross-examined on this subject.
Brown's testimony during the hearing on remand contradicts both detectives and the interrogation transcript. Brown testified on direct examination: "[DiClemente] got to the part with the attorney, she got to the part where you can't afford one, I said, `I want a lawyer.' She kept reading the rights, and that's when I just let her keep reading them." During cross-examination, Brown claimed to have made the statement "I want a lawyer" when the tape was turned off.
Second Gap in Taped Interview
Later in the interrogation, Brown stated: "Oh, oh, oh, you got that! No, I ain't talking to you, no." DiClemente replied: "Okay," and the tape stops. When the tape starts again, DiClemente stated: "Alright Andrew, you expressed that you wanted to talk to us again, I'm going to read you your rights again, okay." Brown responded: "Yes." The Supreme Court noted that "neither the tape nor any other evidence explained Brown's radical reversal in course or what exactly occurred after the tape stopped and before it resumed."
Brown, 2007 WL 4374188, at *3.
During the hearing on remand, DiClemente explained what happened when the tape stopped:
Q: When he says, "I don't want to talk to you," what do you do?
A: I say, "Okay." I shut the tape off.
Q: What happened next?
A: Myself and Detective Bowers stood up, proceed to walk out of the room. Before we made it to actually exit the door, the defendant expressed that he wanted to talk again. So, we turned around, shut the door, we sat back down, turned the tape back on.
Q: So he changed his mind?
A: Correct.
Detective Bowers also testified: "DiClemente turned the tape recorder off. As we were leaving the first time, I can't recall what he said, but he said something like he was ready to talk again." DiClemente proceeded to reread Brown his Miranda rights. Brown stated repeatedly that he understood his rights. In his own words Brown stated he understood his rights to mean: "I'm willing to talk to you all about the crime that you all accusing me of." Brown also stated: "You all talk to me, I'll talk to you all. We can talk. I ain't got nothing but time anyway." The interview then turned to substantive questions regarding the murder of Cleveland.
Juvenile Defendant
At the time of the interrogation, Brown was seventeen years old and his parents were not present. The Court must analyze the interrogation of Brown with "special scrutiny," because he was a juvenile.
Haug v. State, 406 A.2d 38, 43 (Del. 1979).
During the hearing on remand, DiClemente was asked if Brown understood the questions asked of him.
Q: At any point in time during the interview, did the defendant appear not to understand your questions?
A: No.
Q: Did he give answers to your questions that you thought were inappropriate, like he didn't understand what you were asking him?
A: No. He understood. He gave appropriate answers.
Detective Bowers also testified that Brown understood the questions asked.
Brown was no stranger to the criminal justice system. At the time of the interrogation, Brown had been arrested numerous times, beginning at age ten. Criminal charges include: assault, terroristic threatening, offensive touching, disorderly conduct, aggravated menacing, criminal mischief, assault in a detention facility, possession of a deadly weapon during the commission of a felony, burglary, hindering prosecution and resisting arrest. The Miranda rights were read to him numerous times. Brown had been represented by several attorneys prior to the Cleveland homicide. Brown had been involved in countless court proceedings, although he stated: "You ask of any them judges, I went to sleep in all them."
During the hearing on remand Brown answered all questions put to him. Brown did not appear confused by any of the questions. When asked why he repeatedly had stated during the interrogation that he understood his Miranda rights, Brown explained that he was just answering in the affirmative to most questions. When asked if he understood his right to remain silent, he stated: "Now, I do." However, Brown acknowledged he invoked his right to remain silent. He also testified: "I'm not telling you I didn't know what it [ Miranda rights] meant. I'm telling I just was answering the questions."
Having assessed Brown's demeanor and affect while testifying in Court, the Court is convinced that Brown was not confused as to his Constitutional rights before, during or after the WPD interrogation.
DELIBERATE ELICITATION Third Gap in Taped Interview
Admissibility of the NYPD statement rests on whether the WPD "deliberately elicited" the subsequent spontaneous utterance from Brown by improper interrogation techniques at the close of the WPD interview. The Supreme Court focused on the statement, "I'm done!" The comment was made by an unidentified voice and prompted the end of the interrogation. The Supreme Court proffered the theory that DiClemente may have accused Brown of the murder and then abruptly ended the interrogation without giving Brown an opportunity to respond.
Under this possible interpretation of the transcript, DiClemente interrogated Brown in blatant disregard of his Sixth Amendment rights, heatedly accused him of committing murder, and cut him off before giving him an opportunity to respond. Suddenly, at his first opportunity to speak after the abrupt end to the interrogation, Brown anxiously — and perhaps compulsively — explained to the NYPD officers how DiClemente "had it all wrong," and then "confessed" to the murder while correcting the accusations about him at the initial interrogation.
During the hearing on remand, this Court heard additional evidence about whether DiClemente deliberately elicited Brown's outburst in the NYPD car.
In the final minutes of the WPD interrogation, DiClemente asked Brown about a fight involving Cleveland and Brown's brother. The fight took place a couple of days before the Cleveland shooting. It appears from the tape transcript and DiClemente's testimony during the hearing on remand that she believed Brown shot Cleveland in retaliation. Apparently, Cleveland had bested Brown's brother during a physical altercation. DiClemente asked Brown:
Q: He embarrassed you first and you tried to embarrass him?
A: Nah, that ain't the same dude!
Q: He embarrassed your brother, you and . . .
A: That ain't the same dude!
Q: He embarrassed your brother at the club, that's . . .
A: That ain't the same dude.
Q. When you're going, so you embarrassed him? But he ain't comply, so you want to embarrass him?
At this point an unidentified person said: "I'm done." Following this assertion it appears DiClemente stated: "Alright, alright Andrew." The tape is immediately stopped.
During the hearing on remand, DiClemente was asked who stated, "I'm done." She responded:
A: Andrew Brown, the defendant.
Q: Once he says, "I'm done," what did you do?
A: I shut the recorder off and proceeded to walk out of the room until, let the New York detectives take — put him back in the cell.
When asked during the hearing on remand about the end of the interview, Bowers confirmed: "I think Detective DiClemente ended it when he [Brown] said he was done. Then, we walked out."
Brown himself testified that he ended the interview. During cross-examination, Brown was asked:
Q: You did, because, when you said, "I'm done," they walked out; right?
A: Yeah, I'm done with you trying ask me all these questions.
Q: And they left?
A: Yeah.
Q: So, you exercised your right to remain silent?
A: Yes.
Brown wanted to end the interrogation and the WPD detectives honored his request. There is not a scintilla of evidence that DiClemente abruptly ended the interview with the intent to cut Brown off, before giving him an opportunity to respond to a heated accusation of murder.
In further assessing whether it was plausible that Brown would spontaneously make a incriminating statement, the Court considered that during the WPD interrogation, Brown confessed he liked to shoot and rob people. When asked: "Who's a threat to you," Brown responded: "Nobody, to tell you the truth . . . Anybody I shot, I probably shoot the niggers all for money? I like shooting. To tell you the truth, I like guns . . . I like what they do to people." During the hearing on remand Brown explained: "That was the tough guy talking," and that he "was trying to be sarcastic, trying to be smart." The (undeniably imprudent) incriminating statement Brown made to the NYPD officers is wholly consistent with the audacious and impulsively reckless statements Brown made during the WPD interrogation.
CONCLUSION
On remand, this Court finds, as a factual matter, that DiClemente did not make a final accusation and then immediately and abruptly end the interrogation. Brown had an opportunity to respond to all of DiClemente's questions. He further chose to invoke his right to remain silent and the WPD immediately and properly honored Brown's choice each time. The testimony at the hearing on remand confirms that Brown made an unsolicited, spontaneous utterance to the NYPD officer, which was the product of free and deliberate choice. DiClemente did not use a purposefully coercive tactic intended to elicit this statement from Brown. The Court finds the admission of the statement at trial did not violate Brown's Sixth Amendment right.