Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

              DISTRICT OF COLUMBIA COURT OF APPEALS

                                   No. 12-FS-434

                               IN RE S.W., APPELLANT

                       Appeal from the Superior Court of the
                               District of Columbia
                                  (DEL-155-12)

                        (Hon. Milton C. Lee, Jr., Trial Judge)

(Argued September 26, 2014                            Decided September 17, 2015)

      Chris Kemmitt, Public Defender Service, with whom James Klein, Jaclyn
Frankfurt, and Monica Douglas, Public Defender Service, were on the brief, for
appellant.

      John W. Donavan, Assistant Attorney General, with whom Irvin B. Nathan,
Attorney General at the time the brief was filed, Todd S. Kim, Solicitor General,
Rosalyn Calbert Groce, Deputy Solicitor General, and Janice Sheppard, Assistant
Attorney General, were on the brief, for the government.

     Before BLACKBURNE-RIGSBY and EASTERLY, Associate Judges, and
EPSTEIN, Associate Judge of the Superior Court.1

      Opinion for the court by Associate Judge BLACKBURNE-RIGSBY.

     Opinion concurring in part and dissenting in part by Associate Judge
EASTERLY at page 32.

     Opinion concurring in part and dissenting in part by Associate Judge
EPSTEIN at page 50.
      1
          Sitting by designation pursuant to D.C. Code § 11-707 (a) (2012 Repl.).
                                         2

      BLACKBURNE-RIGSBY, Associate Judge: This case presents a “rare” instance

in which we conclude that “a self-incriminating statement was ‘compelled’ despite

the fact that the law enforcement authorities adhered to the dictates of Miranda [v.

Arizona, 384 U.S. 436, 467 (1966).]” Dickerson v. United States, 530 U.S. 428,

444 (2000). Specifically, we conclude that a juvenile’s confession during custodial

interrogation was involuntary, in spite of an effectively delivered Miranda warning

and a knowing and intelligent waiver of Miranda rights, and we reverse the trial

court’s adjudication of delinquency.2



      Following a consolidated suppression hearing and bench trial, appellant

S.W., a fifteen-year-old juvenile, was adjudicated delinquent on four counts:

(1) carjacking, (2) attempted unauthorized use of a motor vehicle, (3) unlawful

entry of a motor vehicle, and (4) threats to do bodily harm.3 On appeal, appellant


      2
           Appellant argues that reversal is required because the trial court
committed constitutional error by admitting his confession and the government
cannot show “beyond a reasonable doubt” that the trial court did not rely on this
error in reaching its verdict. See Chapman v. California, 386 U.S. 18, 24 (1967).
The government does not argue otherwise and in fact, the trial court explicitly
relied upon appellant’s confession in convicting him, stating in its findings that
“[m]uch of [Ms. Dougall’s] testimony is supported by respondent’s statements to
the police.” Accordingly, we cannot find that the error was harmless, and reversal
is required.
      3
        See D.C. Code § 22-2803 (a)(1) (2012 Repl.); D.C. Code §§ 22-3215,
-1803 (2012 Repl.); D.C. Code § 22-1341 (2012 Repl.); and D.C. Code § 22-407
(2012 Repl.), respectively.
                                         3

challenges the trial court’s denial of his motion to suppress statements that he made

during post-arrest interrogation.    Appellant’s principal argument is that the

interrogating detective’s pre-Miranda remarks rendered the subsequent Miranda

warning ineffective as a matter of law and, consequently, that his confession must

be suppressed.     Alternatively, appellant argues that the detective’s remarks

prevented him from making a knowing, intelligent, and voluntary waiver.



      We hold that the interrogating detective delivered an effective Miranda

warning and that appellant made a knowing and intelligent waiver of his Miranda

rights, but that he did not do so voluntarily. In so holding, we avoid a per se rule

that either invalidates a Miranda warning as a matter of law when law enforcement

officials make pre-Miranda warning remarks, or that validates a Miranda warning

as a matter of law when law enforcement officials read the warning verbatim from

a waiver card. 4 We reinforce the necessity of looking holistically at every

custodial interrogation in reaching a conclusion specific to the facts presented. No

“talismanic incantation” is necessary to satisfy Miranda. Missouri v. Seibert, 542

U.S. 600, 611 (2004) (citation omitted). Nor will “mere recitation of the litany [of

rights]” suffice in every circumstance. Id. Rather, our inquiry is case-specific,

      4
         Indeed, we announce no per se rule whatsoever with regard to warnings,
as our dissenting colleague suggests. See Opinion of Easterly, J., at 43-44.
Instead, we specifically decline to do so, favoring a case-specific approach.
                                          4

asking “whether the warnings reasonably convey to a suspect his [or her] rights as

required by Miranda.”      Id. (internal quotation marks, citation, and alterations

omitted).



                            I.     Factual Background



   A. The Incident



      At approximately 10:00 a.m. on January 22, 2012, Tiffany Dougall was

pumping gas into her car at a gas station on the corner of Benning Road and East

Capitol Street, Northeast, Washington, D.C. She had left the driver-side door ajar

with the keys in the ignition. Appellant approached Ms. Dougall’s car, sat in the

driver seat, and attempted to start the car. As appellant tried to close the car door,

Ms. Dougall pulled the door open and retrieved her keys, thwarting appellant’s

attempt.    Appellant exited the car and Ms. Dougall called him a “stupid a--

[expletive],” to which he responded: “I should have shanked you. That’s what we

do around here.” Appellant then ran across the street and entered a metro station.

Within approximately twenty minutes, officers of the Metropolitan Police

Department (“MPD”) arrested appellant and brought him back to the scene where

Ms. Dougall identified him.
                                         5

   B. The Interview



      MPD Detective Howard Howland questioned appellant at the MPD Juvenile

Processing Center in a video-recorded session that began just before midnight and

lasted approximately eighteen minutes. Appellant’s right foot was cuffed to the

floor of the interview room, but his hands remained free.          Before issuing a

Miranda warning, Detective Howland introduced himself and asked appellant if he

knew why he was under arrest. 5 When appellant did not respond, Detective

Howland explained:

            I know you know why you’re up here, so I ain’t gonna
            play the ‘I don’t know’ crap, all right? I’m gonna give
            you an opportunity to give your version of what
            happened today, because . . . I stand between you and the
            lions out there. . . . [W]e have a lot of things going on out
            there, and they’re gonna try and say that you did it all.
            Okay? And I think what happened today was just a one-
            time thing. But before I came out here everybody said
            . . . you did a whole bunch of stuff, but in order for us to
            have a conversation, I have to read you your rights and
            you have to waive your rights. If you answer no to any
            of the questions I ask you after I read you your rights,
            that’s all, I mean, I can’t have the interview, okay?

(Emphasis added)




      5
        Appellant did not respond to this question. Thus, any potential error in
asking this question before issuing a Miranda warning was harmless. See Di
Giovanni v. United States, 810 A.2d 887, 894 (D.C. 2002).
                                         6

      Detective Howland read appellant his Miranda rights from a waiver card,

and appellant, who had not spoken until this point, waived these rights verbally and

in writing. 6 Appellant’s demeanor and tone remained calm as he subsequently

confessed to entering Ms. Dougall’s car with the intention of taking it. After the

confession, Detective Howland told appellant that he had spoken with appellant’s

grandmother, who told Detective Howland that she was worried about appellant,

that he had just been released from a group home, and that he had been “reported

missing.” Appellant began to cry at this point and explained that he had left the

group home because he had a “beef with a whole lot of people.” Detective

Howland stated, “[i]t sounds like you got a lotta anger” and “made some bad

choices,” then told appellant to consider how it feels “for [his] grandmother to see

[him] in court” or “locked up,” stating that people “who tried to do what

[appellant] did . . . get full of bullets.” Detective Howland then asked appellant

what he would do differently if he could do everything over, and appellant

responded “I wouldn’t have went to that car.”7



      6
         Specifically, appellant answered affirmatively when asked: (1) “Have you
read or had read to you the warning as to your rights?” (2) “Do you understand
these rights?” (3) “Do you wish to answer any questions?” and (4) “Do you wish to
answer any questions without having an attorney present?” Appellant provided his
signed waiver card with the record on appeal.
      7
         The video recording of appellant’s interrogation was included as part of
the record on appeal.
                                        7

   C. The Motion to Suppress and Trial



      Appellant filed a motion to suppress the statements he made to Detective

Howland, alleging, inter alia, that he did not knowingly and voluntarily waive his

Miranda rights, and that the coercive circumstances of the interrogation rendered

his statements involuntary. During a hearing on the motion, the trial court viewed

the video recording of appellant’s interrogation and characterized Detective

Howland’s pre-Miranda remarks as a “very simple set of statements” that did not

violate “Miranda’s prophylactic rule”; in essence, informing appellant that “if you

want to talk, this is your opportunity, but you don’t have to.” The court described

these statements as an “age-old tactic” of detectives: sharing pieces of known

information to encourage a suspect to be forthcoming with additional information.

The court further noted that Detective Howland issued a complete Miranda

warning and remained an “appreciable distance” from appellant during the

conversation and that appellant did not ask follow up questions and appeared to

understand the warning.



      In assessing the validity of appellant’s waiver, the trial court considered

factors pertaining to knowledge, intelligence, and voluntariness and concluded,

based on the totality of the circumstances, that Detective Howland’s remarks did
                                         8

not invalidate appellant’s waiver. The trial court found no indication that appellant

was in distress or discomfort and it observed that the combination of Detective

Howland’s assurance that he could not talk to appellant unless appellant waived his

rights and appellant’s ready responses to Detective Howland’s questions indicated

a knowing, intelligent, and voluntary conversation.         Furthermore, the court

observed that appellant talked freely, chose which questions to answer and which

to ignore, seemed lucid and aware of what was happening, and had no mental

health issues.   Accordingly, the trial court concluded that appellant made the

decision to waive his Miranda rights “based on his own free will, rational thought,

[and] his own intellect,” and denied the motion to suppress. Following trial, the

court adjudicated appellant delinquent on all four counts. This appeal followed.



                                 II.    Discussion



      On appeal from the denial of a motion to suppress on Miranda grounds, “we

must defer to the trial court’s findings of historical fact as long as they are not

clearly erroneous, and we must view the facts and the reasonable inferences that

may be drawn from them in the light most favorable to sustaining the court’s

ruling.” Dorsey v. United States, 60 A.3d 1171, 1190 (D.C. 2013). However, we
                                         9

review the voluntariness of a Miranda waiver, a legal question, de novo. See id.;

In re M.A.C., 761 A.2d 32, 38 (D.C. 2000).



      Miranda requires that police “adequately and effectively” warn a suspect of

his or her right to remain silent and to have an attorney present during custodial

interrogation if the suspect’s statements are to be admissible at trial. 384 U.S. at

467; Robinson v. United States, 928 A.2d 717, 725 (D.C. 2007) (citation omitted).

After receiving this warning, a suspect may opt to waive his or her rights.

Miranda, supra, 384 U.S. at 467, 470 (“No effective waiver of the right to counsel

during interrogation can be recognized unless specifically made after the warnings

. . . have been given.”). If a suspect opts to waive Miranda rights and later

challenges the admissibility of his or her post-waiver statements, the government

has the burden to show that the suspect’s waiver was “made knowingly,

intelligently, and voluntarily.” Di Giovanni, supra note 5, 810 A.2d at 892; see

Shreeves v. United States, 395 A.2d 774, 781 (D.C. 1978).



      Appellant makes two arguments on appeal, which we address in turn:

(A) that Detective Howland’s pre-Miranda remarks rendered the subsequent

Miranda warning ineffective as a matter of law and, consequently, that appellant’s
                                          10

confession must be suppressed, and (B) that his waiver of Miranda rights was not

knowing, intelligent, and voluntary.



   A. The Validity of the Miranda Warning



      Appellant contends that Detective Howland’s pre-Miranda warning remarks

were “embellishments” that conflicted with and confused Miranda by generally

failing to convey the adversarial nature of the interaction and specifically failing to

convey that the consequence of waiver may be conviction, rather than protection

from the “lions.”    Embellishing the warning in this way constitutes trickery,

appellant continues, because the remarks falsely conveyed that appellant could not

have a conversation without waiving his rights and that he would be penalized if he

did not waive them. Accordingly, appellant argues that Detective Howland’s pre-

Miranda remarks rendered the Miranda warning that followed ineffective as a

matter of law.8


      8
          Appellant’s reliance on United States v. San Juan-Cruz to support this
argument is misplaced. 314 F.3d 384 (9th Cir. 2002). In that case, the Ninth
Circuit found that there is a substantial “risk of confusion” when “a warning, not
consistent with Miranda, is given prior to, after, or simultaneously with a Miranda
warning” because these multiple warnings impose an unfair burden on a suspect to
“sort out” the conflict. Id. at 386–89 (concluding that such confusion existed,
based on the totality of circumstances, when a suspect received two conflicting
Miranda warnings on separate occasions from the same Border Patrol agent prior
to interrogation, one of which did not fully state the suspect’s right to counsel if he
                                        11

      On the facts before us, we conclude that Detective Howland’s pre-Miranda

remarks did not render the subsequent Miranda warning ineffective. Appellant’s

argument relies on Missouri v. Seibert, where a plurality of the Supreme Court

invalidated a Miranda warning after police used a formerly common “question

first” tactic, in which police would solicit a full confession, give a technically

accurate Miranda warning, and then solicit the confession again. 542 U.S. at 604–

06. While Detective Howland’s pre-Miranda remarks cannot be construed as an

instance of this “question first” tactic — a Seibert situation occurs when a suspect

provides answers in response to pre-Miranda interrogation, a scenario that did not

play out here — we have interpreted Siebert, and its predecessor Oregon v. Elstad,

470 U.S. 298 (1985), as quite applicable to a factual scenario similar to the one

before us.9 In Hairston v. United States, a detective entered an interrogation room


could not afford it). Even putting aside the different issues presented in San Juan-
Cruz and the present case — here there was only one verbatim Miranda warning
— the Ninth Circuit did not announce a per se rule that invalidates a Miranda
warning as matter of law if that warning is accompanied by statements inconsistent
with Miranda. Rather, it clarified that when a suspect receives two inconsistent
warnings, “the onus is on the government to clarify to the arrested party the nature
of his or her rights under the Fifth Amendment,” and it cautioned that the
government should not presume that a suspect who has received two contradictory
warnings has adequate knowledge of his or her rights. Id. at 389.
      9
         In Elstad, the Supreme Court addressed the effect of a robbery suspect’s
statement, given in response to police inquiry prior to arrest and Miranda warning,
that “yes, [he] was there [at the scene of the robbery].” 470 U.S. at 300–01. The
Court suppressed this pre-warning statement but concluded that the statement had
no effect on the suspect’s subsequent warned confession, holding that “a suspect
who has once responded to unwarned yet uncoercive questioning is not thereby
                                        12

and, without issuing a Miranda warning, introduced himself and informed Mr.

Hairston that he faced significant charges and that the detective was interested in

hearing Mr. Hairston’s side of the story. 905 A.2d 765, 770–71, 782 (D.C. 2006).

The detective added, however, that he “just wanted [Mr. Hairston] to listen[,]” and

then proceeded to recount facts that showed Mr. Hairston’s involvement in the

crime and played a silent video of another suspect giving a statement. Id. at 770–

72. The detective asked Mr. Hairston if he wanted “any help in his case” and if he

wanted to “tell his side of the story,” to which Mr. Hairston responded

affirmatively. Id. The detective then issued a Miranda warning and Mr. Hairston

waived his rights and confessed. Id.



      In upholding the detective’s tactic in Hairston, we began by reviewing

Seibert and Elstad, acknowledging that the factual scenario of the “question first”

tactic was different than the “just listen” tactic in Hairston, but that both cases

were nonetheless instructive in determining whether pre-Miranda warning

interaction “made the Miranda warnings administered in the second session of

their interaction ineffective,” and thereby contaminated a subsequent voluntary


disabled from waiving his rights and confessing after he has been given the
requisite Miranda warnings.” Id. at 318. “Far from establishing a rigid rule, we
direct courts to avoid one; there is no warrant for presuming coercive effect where
the suspect’s initial inculpatory statement, though technically in violation of
Miranda, was voluntary.” Id.
                                        13

confession. Id. at 780–81. In Elstad, the Supreme Court framed the inquiry as

“whether, in fact, the second [post-Miranda warning] statement was also

voluntarily made.” 470 U.S. at 318. This inquiry requires the fact finder to

“examine the surrounding circumstances and the entire course of police conduct”

to determine whether the suspect’s statements were voluntary. Id. “The fact that a

suspect chooses to speak after being informed of his rights is, of course, highly

probative.” Id. While the unwarned statement must be suppressed, “[n]o further

purpose is served by imputing ‘taint’ to subsequent statements obtained pursuant to

a voluntary and knowing waiver.” Id. Similarly, in Seibert, the central inquiry for

the plurality was “whether it would be reasonable to find in these circumstances

that the warning[] could function ‘effectively’ as Miranda requires.” 542 U.S. at

611–12 (citation omitted) (stating that a Miranda warning must “effectively advise

the suspect that he ha[s] a real choice about giving an admissible statement” and

“reasonably convey that he could choose to stop talking”).



      Accordingly, in Hairston, we framed our own inquiry as whether the

detective’s pre-Miranda warning interaction with Mr. Hairston “constitute[d] the

functional equivalent of interrogation” such that it had “a coercive impact first on

Mr. Hairston’s decision to say ‘yes,’ he wanted to tell his side of the story, and

ultimately on his decision to confess.” 905 A.2d at 780. On the facts of that case,
                                        14

we concluded that “the Miranda warnings as administered [to Mr. Hairston] would

meaningfully apprise a reasonable suspect of his right or choice to remain silent

and thus were effective[.]” Id. at 782 (brackets in original, internal quotation

marks omitted) (quoting United States v. Gonzalez-Lauzan, 437 F.3d 1128, 1138

(11th Cir. 2006)). We stated, however, that such pre-Miranda warning interaction

could very well be “the functional equivalent of interrogation” and have “a

coercive effect” that overbears a suspect’s free will. Id. at 780. Yet we concluded

that “nothing in the record persuades us . . . that Mr. Hairston’s will was

overborne[.]” Id. at 782 (assessing factors in the record indicating voluntariness,

including Mr. Hairston’s discretionary responses, his insistence on a typewritten

statement, and that he was not under age or particularly vulnerable or impaired).



      In the case before us, we do not conclude that Detective Howland’s pre-

Miranda remarks rendered ineffective the Miranda warning that followed. Rather,

the key inquiry is whether appellant, in spite of Detective Howland’s pre-Miranda

remarks, understood the Miranda warning and the consequences of waiver when

he decided to waive his rights. See Hairston, supra, 905 A.2d at 782 (assessing the

effectiveness and adequacy of a Miranda warning — in spite of pre-Miranda

interactions — based on the totality of circumstances, looking to see whether

appellant made a knowing, intelligent, and voluntary choice to waive his rights);
                                         15

Seibert, supra, 542 U.S. at 613–14 (asking whether the tactic at issue was “likely

to mislead and deprive a defendant of knowledge essential to his ability to

understand the nature of his rights and the consequences of abandoning them”);

Gonzalez-Lauzan, supra, 437 F.3d at 1139 (upholding the validity of a Miranda

warning given between two phases of interrogation, the first in which officers told

a suspect to just listen, the second in which officers solicited a confession, because

“nothing in the record suggests that [the suspect’s] waiver of his rights was

uninformed, coerced or involuntary”); see also Miranda, supra, 384 U.S. at 469

(“It is only through an awareness of [the] consequences [of waiver] that there can

be any assurance of real understanding and intelligent exercise of the privilege.”).

That is to say, on the facts of the present case, where appellant did not speak before

receiving a Miranda warning and where he received a complete and accurate

Miranda warning, our assessment of the impact of pre-Miranda remarks takes the

perspective of appellant, asking whether, based on the totality of the

circumstances, the pre-Miranda remarks and the subsequent Miranda warning

permitted appellant to knowingly, intelligently, and voluntarily waive his Miranda

rights. See Di Giovanni, supra note 5, 810 A.2d at 892. Detective Howland’s pre-

Miranda remarks are “but one factor to be considered in the determination of

whether the defendant made a knowing and intelligent waiver of his rights and that

the waiver was voluntary.” See United States v. Rawls, 322 A.2d 903, 907–08
                                          16

(D.C. 1974) (concluding that a police officer’s “unnecessary embellishment on the

Miranda warning” that “a lawyer would not be provided until the next day” did

not, in itself, invalidate the warning). We turn to this inquiry.



   B. The Validity of the Miranda Waiver:             Weighing the Totality of the
      Circumstances



      A valid waiver of Miranda rights has two distinct components: (1) it must

be knowing and intelligent, “made with a full awareness of both the nature of the

right being abandoned and the consequences of the decision to abandon it,” and (2)

it must be voluntary, “the product of a free and deliberate choice rather than

intimidation, coercion, or deception.” In re M.A., 33 A.3d 378, 381 (D.C. 2011)

(citing Berghuis v. Thompkins, 560 U.S. 370, 382–83 (2010)).          In assessing

whether a Miranda waiver was knowing, intelligent, and voluntary, we consider

“the particular facts and circumstances surrounding [the] case” and base our

determination on the totality of the circumstances. Di Giovanni, supra note 5, 810

A.2d at 892 (internal quotations and citations omitted).



      The “admissions and confessions of juveniles require special caution.” In re

M.A.C., supra, 761 A.2d at 36 (citing In re Gault, 387 U.S. 1, 45 (1967)).

Applying the totality of the circumstances inquiry to the juvenile context, we
                                         17

consider “the juvenile’s age, experience, education, background and intelligence,

the circumstances under which the statement was given, and whether the juvenile

has the capacity to understand the warnings given him, the nature of his Fifth

Amendment rights, and the consequences of waiving those rights.” Id. (citing Fare

v. Michael C., 442 U.S. 707, 725 (1979)). In addition, we may consider the

juvenile suspect’s prior experience with the legal system. Di Giovanni, supra note

5, 810 A.2d at 892.



      Turning to this two-part inquiry, we conclude that appellant knowingly and

intelligently waived his Miranda rights, but that he did not do so voluntarily.10



      1. Knowing and Intelligent Waiver



      Appellant argues that he could not have knowingly and intelligently waived

his rights after receiving a “confounding and inaccurately conveyed” Miranda

warning from Detective Howland.         Detective Howland’s statements, appellant

argues, incorrectly characterized the consequences of signing the waiver by giving
      10
           The trial court conducted a combined totality of the circumstances
analysis, simultaneously assessing factors relevant to knowledge, intelligence, and
voluntariness to reach an overall conclusion. We have taken this approach in many
of our cases, see, e.g., In re M.A.C., supra, 761 A.2d at 38–9, while in others we
have opted to separate this analysis, see, e.g., Dorsey, supra, 60 A.3d at 1200–06,
as we do in the present case.
                                         18

appellant the option to “[s]tay silent and be thrown to the lions, or speak and be

protected by Detective How[land].”11 Thus, the “most plausible thesis,” appellant

argues, is that he merely “follow[ed] the direction of an authority figure —

something juveniles are highly inclined to do” — rather than knowingly and

intelligently waiving his rights.



      A suspect’s waiver is knowing and intelligent when, considering the totality

of the circumstances, the suspect demonstrates “awareness of the right to remain

silent and [makes] a decision to forego that right.” Robinson, supra, 928 A.2d at

725 (quoting United States v. Yunis, 273 U.S. App. D.C. 290, 301, 859 F.2d 953,

964 (1988)). As a result, “the government bears a heavy burden to show: (1) that

the defendant understood [the right] . . . ; and (2) that the defendant intentionally

relinquished or abandoned that ‘known right[.]’” Shreeves, supra, 395 A.2d at 781

(citations and internal quotation marks omitted); see Fare, supra, 442 U.S. at 726

(concluding, based on the totality of the circumstances, that a juvenile suspect had

knowingly and intelligently waived his rights after police officers explained that he

was being questioned regarding a crime and “informed him of all the rights

delineated in Miranda, and ascertained that [the suspect] understood those
      11
         In particular, appellant points to Detective Howland’s statement: “I know
you know why you’re up here, so I ain’t gonna play the ‘I don’t know’ crap,” and
Detective Howland’s invitation to “give your version of what happened today,”
followed by the statement “I stand between you and the lions out there.”
                                         19

rights[,]” and where the suspect provided “no indication” that he “failed to

understand what the officers told him[,]” and “clearly expressed his willingness to

waive his rights and continue the interrogation”).



      Because our analysis takes appellant’s perspective with regard to whether

the totality of circumstances indicates that he made a knowing and intelligent

waiver, we begin by considering the information before him when he waived his

rights. Detective Howland’s pre-Miranda remarks — namely, his references to

protecting appellant from the “lions out there” who want to pin a “whole bunch of

stuff” on appellant — are one factor in our analysis. See Rawls, supra, 322 A.2d at

907–08. Following these remarks, the video recording of appellant’s interrogation

establishes that Detective Howland told appellant that:

             [I]n order for us to have a conversation, I have to read
             you your rights and you have to waive your rights. If you
             answer no to any of the questions I ask you after I read
             you your rights, that’s all, I mean, I can’t have the
             interview, okay?

Appellant remained silent and Detective Howland read aloud a complete and

unmodified Miranda warning from the waiver card.           Appellant affirmed his

understanding of each right vocally and in writing.
                                             20

      The trial court made specific findings under a “totality of the circumstances”

analysis after reviewing the video recording of appellant’s confession. The trial

court found that Detective Howland’s pre-Miranda remarks were “just kind of so

general[,]” in essence, a “very simple set of statements” that “went through

Miranda in detail,” providing context for the boilerplate Miranda warning that he

subsequently read from a waiver card. After Detective Howland read aloud from

the Miranda waiver card, the trial court observed that he “asked about [appellant’s]

rights in each of the four sections.” Appellant “appeared to understand[,]” the trial

court found, and “didn’t ask any follow-up questions[,]” and affirmatively

answered each of Detective Howland’s four confirmatory questions before signing

the waiver card. The trial court also noted the absence of “any mental health

concerns,” stating that appellant “seemed lucid” and “aware of what was going

on.” Appellant “seemed to know particularly what he was doing, [and] seemed to

want to talk about it[,]” and “certainly picks and chooses th[r]ough what he wants

to answer.” As Detective Howland asked questions, appellant “didn’t really seem

to have any difficulty . . . indicating to the detective by not answering [that ‘]I am

not talking about that subject matter.[’]”



      On these findings, trial court concluded, and we agree, that appellant waived

his rights using his own “rational thought” and “intellect.” While we do not
                                        21

condone “a police officer’s deliberate decision to withhold Miranda warnings prior

to speaking with a person who is under arrest[,]” see Hairston, supra, 905 A.2d at

782, we defer to the trial court’s findings and uphold its conclusion that Detective

Howland’s pre-Miranda remarks did not mischaracterize the verbatim Miranda

warning that followed. Contra, e.g., Di Giovanni, supra note 5, 810 A.2d at 894

(concluding that a police officer had invalidated a suspect’s waiver by explaining

that the police officer did not think the suspect needed a lawyer and that it would

be best to explain his side of the story); Lee v. State, 12 A.3d 1238, 1250–51 (Md.

2011) (concluding that the detective’s statement “this is between you and me, bud”

violated Miranda by “undermining the warning” that the defendant’s statements

could be used against him). We conclude that Detective Howland accurately and

comprehensively apprised appellant of his rights, see Fare, supra, 442 U.S. at 726,

and that Detective Howland’s pre-Miranda remarks, while relevant to our

continued inquiry, did not prevent appellant from making a knowing and

intelligent waiver, see Rawls, supra, 322 A.2d at 907–08. Left for us now is the

question of whether appellant’s waiver was voluntary.
                                        22

      2. Voluntary Waiver



      Appellant contends that Detective Howland coerced him into waiving his

rights by indicating that appellant would only be protected from “the lions and the

additional charges they wished to bring” if appellant waived his rights, and by

suggesting that appellant would face a penalty — the additional charges — if he

did not waive his rights. Appellant analogizes Detective Howland’s interrogation

tactic to one employed in the Ninth Circuit case Collazo v. Estelle, where an

interrogating police officer told a suspect who had invoked his Miranda rights by

asking to speak with a lawyer that it “might be worse” if he did so and that it

would be in his interest to proceed without one. 940 F.2d 411, 414 (9th Cir. 1991).

The Ninth Circuit held that these statements created a penalty for exercising

constitutional rights and concluded that the officer had failed to “scrupulously

honor Collazo’s right to cut off questioning” and nullified Miranda’s express

purpose to alleviate the “compelling pressures” of interrogation. Id. at 416–18

(citing Miranda, supra, 384 U.S. at 479) (internal quotation marks omitted).



      Miranda’s “critical safeguard” against the coercive pressures of custody is a

suspect’s understanding of the right to end questioning and that law enforcement

must respect this right. See Dorsey, supra, 60 A.3d at 1191 (citing Michigan v.
                                         23

Mosley, 423 U.S. 96, 104 (1975)); see also Berghuis, supra, 560 U.S. at 386

(stating that the suspect must be aware “that police would have to honor his right to

be silent and his right to counsel during the whole course of interrogation”).

Without this safeguard, “the setting of in-custody interrogation operates on the

individual to overcome free choice in producing a statement after the privilege has

been once invoked.” Dorsey, supra, 60 A.3d at 1191. “[A]ny evidence that the

accused was threatened, tricked, or cajoled into a waiver will, of course, show that

the defendant did not voluntarily waive his privilege.” Miranda, supra, 384 U.S.

at 476.   “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.”

Dorsey, supra, 60 A.3d at 1203.



      Bearing these principles in mind, we are keenly aware of the “special

caution” required in our de novo review of the voluntariness of appellant’s

confession, given his juvenile status, and we take great care to assess the impact of

subtle interrogation tactics. In re M.A.C., supra, 761 A.2d at 36 (citing In re Gault,

387 U.S. at 45); Dorsey, supra, 60 A.3d at 1190. Our inquiry rests on many of the

same factors mentioned in our “knowing and intelligent” inquiry above: we must

determine whether, on the totality of the circumstances, appellant’s will was
                                         24

overborne by Detective Howland’s remarks and the circumstances of the

interrogation. See Castellon v. United States, 864 A.2d 141, 157 (D.C. 2004).

Specific to the voluntariness component, we also consider a juvenile suspect’s

physical and mental condition, the duration and intensity of the interrogation, the

hour at which it occurred, and any evidence of physical abuse, threats, punishment,

or trickery. See In re J.F., 987 A.2d 1168, 1177 (D.C. 2010) (citations omitted). A

“totality of the circumstances” analysis is a subjective analysis, and we have

accordingly upheld the validity of Miranda waivers on voluntariness grounds in

the juvenile context where the totality of the circumstances weighed in favor of

such a conclusion,12 and invalidated Miranda waivers on the same grounds where

the totality of the circumstances weighed against such a conclusion.13



      12
          See In re M.A., supra, 33 A.3d at 379, 382 (concluding that a fifteen-year-
old who “spoke little English” and “had no previous experience with the American
legal system” had waived his rights and confessed voluntarily, in spite of a
detective’s admonition that “if you value your mother, value your little sister, the
best thing you can do is tell the truth,” because this statement referred to the boy’s
personal interest in helping his family, not his legal interests, and because the boy
“had a calm demeanor, did not manifest any reading difficulties, and did not ask
for further clarification”); In re D.W., 989 A.2d 196, 203–04 (D.C. 2010)
(concluding that a juvenile had voluntarily waived his Miranda rights after a
detective issued a warning “as soon as the officer came to be seated in the room
with the [suspect],” deferring to the trial court’s findings based on a video
recording of the confession showing the suspect’s “demeanor, energy level, and
apparent level of understanding” and that he was unrestrained); Matter of D.A.S.,
391 A.2d 255, 258–59 (D.C. 1978) (concluding that a confession was voluntary
when police led a seventeen-year-old suspect “to believe that the evidence against
him is stronger than it is” because he had prior experience with law enforcement,
                                          25

      Reviewing the factors relating to voluntariness in the record before us, we

return to the trial court’s findings, to which we accord deference. See Dorsey,

supra, 60 A.3d at 1190. After viewing appellant’s approximately eighteen-minute

video-recorded interrogation, the trial court observed that appellant was cuffed to

the floor 14 but appeared “relaxed” and not “under any particular distress” or

“discomfort” and stated that “[t]here’s no evidence of physical injuries[.]” The

trial court found that Detective Howland “maintained an appreciable distance”

from appellant and was “kind of sitting back . . . not really up on top of

[appellant].” The trial court also noted that “[t]here don’t seem to be any mental

health concerns[.]” As to Detective Howland’s pre-Miranda remarks, the trial

court found that they were not “an eye-opener” for appellant; while “[o]ne might

conclude[] that [the pre-Miranda remarks] relate[] to more serious charges[,]”

appellant “had to know that . . . he was facing a pretty significant set of charges[.]”

was not restrained, threatened, or coerced, was repeatedly informed of his rights,
and understood those rights).
      13
          See In re. J.F., supra, 987 A.2d at 1177 (concluding that a fourteen-year-
old’s confession was involuntary because police officers, over the course of a two-
hour interrogation, told him that he could not leave until he confessed, even though
he had denied culpability sixty-three times, and much of his confession simply
repeated the officer’s suggested version of events); In re T.T.T., 365 A.2d 366,
369 (D.C. 1976) (concluding that a fifteen-year-old’s confession was involuntary,
in spite of multiple valid waivers during an interview lasting approximately ten
hours, after detectives pressed him to elaborate upon a prior confession after he
had invoked his Miranda rights).
      14
          The trial court stated that appellant was “hand cuffed” but the video
recording shows that appellant wore an ankle cuff.
                                         26

Detective Howland was using an “age-old tactic of detectives[,]” the trial court

concluded, in which “they have particular information and they share pieces of it”

and “sometimes not even completely . . . telling the truth” about the information

that they know. Accordingly, the trial court concluded that this “use of trickery”

did not violate Miranda and that appellant made a decision to waive his rights

“based on his own free will[.]”



      The question we address on review is one of tactics; namely, whether

Detective Howland’s interrogation tactic of making pre-Miranda warning

statements that conveyed the gravity of appellant’s situation combined with the

surrounding circumstances of the interrogation to render appellant’s waiver

involuntary. As explained in Section II-A, Detective Howland’s tactic bears some

resemblance to the “just listen” tactic that we upheld in Hairston. While that tactic

was quite possibly coercive from an objective standpoint, in the circumstances of

Hairston we held that it did not “constitute the functional equivalent of

interrogation[,]” such that its “coercive impact” rendered Mr. Hairston’s post-

waiver confession involuntary.     905 A.2d at 780–82.       Here, as in Hairston,

Detective Howland spoke generally about the case against appellant while

appellant listened and remained silent until Detective Howland issued a Miranda

warning and asked appellant whether he wanted to waive his rights. Id. at 771.
                                         27

Also, as in Hairston, Detective Howland’s remarks were, no doubt, an attempt to

bolster the case against appellant to encourage him to share his side of the story.

Id. at 771–72.



      Yet Detective Howland’s tactic is dissimilar to Hairston in one dispositive

aspect:   rather than recounting the specific evidence implicating appellant,

Detective Howland referred generally to unspecified charges that appellant would

face if the “lions out there” had their way.      We have previously upheld the

interrogation tactic of deceiving a suspect into believing “that the evidence against

him is stronger than it is.” Matter of D.A.S., supra note 12, 391 A.2d at 258. Yet

such deception crosses the line to inadmissible coercion when other circumstances

combine with it to “mak[e] the situation appear hopeless[.]” Id. at 259. (citations

omitted). Such circumstances manifested here when Detective Howland portrayed

himself as appellant’s protector from these “lions,” ostensibly referencing other

people in the processing center, and stated that “everybody” — presumably the

“lions” — “said . . . you did a whole bunch of stuff” and “they’re gonna try and say

that you did it all” unless appellant accepted the opportunity “to give [his] version

of what happened.” In essence, by portraying himself as protector from the “lions

out there,” Detective Howland supplied the reverse implication: that if appellant

does not waive his rights, Detective Howland will throw him to the “lions.” Taken
                                         28

together, these statements seem to suggest that if appellant remained silent, he

would face fabricated charges for things that he did not do.



      Detective Howland did not explicitly tell appellant that “it might be worse”

for him if he invoked his rights, as in Collazo, but he strongly implied it. 940 F.2d

at 414. The facts of Collazo are not directly applicable to the factual scenario

before us — there, the officer’s statement that “it might be worse” was in response

to Collazo’s invocation of his right to counsel — but the legal principal of Collazo

is readily applicable. The Ninth Circuit observed that the officer’s statements

“were calculated to pressure Collazo into changing his mind about remaining

silent, and into talking without counsel to his interrogators” and concluded that the

officer’s subsequent statement “that it ‘might be worse’ for Collazo if he did not

cooperate with the police can only be seen as menacing.” Id. at 416. This

statement, the court explained, was an attempt to “impose a penalty” for invoking

Miranda rights, id. at 417, and we see little difference in the nature of this post-

Miranda statement and Detective Howland’s pre-Miranda statements. Telling a

suspect that invoking his constitutional rights will result in adverse consequences is

an “unquestionably coercive” tactic. Dorsey, supra, 60 A.3d at 1202–04 (holding

that detectives violated Miranda by “exhorting [a suspect] that [asserting his

rights] would work to his disadvantage while their relinquishment would benefit
                                         29

him”); see also United States v. Harrison, 34 F.3d 886, 891–92 (9th Cir. 1994)

(“[T]here are no circumstances in which law enforcement officers may suggest that

a suspect’s exercise of the right to remain silent may result in harsher treatment by

a court or prosecutor.”).15 Here, Detective Howland’s remarks come much closer

to the “unquestionably coercive” tactics in Dorsey, supra, 60 A.3d at 1203–04,

than to the acceptable deception regarding the strength of the evidence in Matter of

D.A.S., supra note 12, 391 A.2d at 258.16



      We emphasize the role of appellant’s juvenile status.        In any custodial

interrogation situation, “the seemingly benign transmittal of information to an

accused may resemble the kind of mental games that largely generated the

Miranda decision itself.” See United States v. Brown, 737 A.2d 1016, 1021 (D.C.

1999). This warning is all the more applicable in the juvenile context, where

courts must exercise “special caution” in conducting a voluntariness analysis. See

      15
          Of course, not all forms of pressure to waive Miranda rights to avoid
adverse consequences are coercive and in violation of Miranda. See supra note
12; see also Hairston, supra, 905 A.2d at 770–72.
      16
          Yet another factor appears to weigh in favor of involuntary waiver:
although Detective Howland’s interview lasted only eighteen minutes, there is
some confusion as to how long appellant had been in custody at the time.
Appellant’s brief indicates that he was interviewed at “11:54 a.m.[,]” or nearly two
hours after the crime, whereas the video recording of the interview indicates that
Detective Howland stated “it’s about 11:54 p.m.” as he filled out the waiver card,
placing the interview nearly fourteen hours after the crime. The waiver card
provided with the record on appeal is inconclusive.
                                         30

In re M.A.C., supra, 761 A.2d at 36 (citing In re Gault, 387 U.S. at 45). Even in

the absence of circumstances indicating physical coercion or visible distress, we

conclude that a reasonable juvenile suspect in appellant’s situation would

understand Detective Howland’s pre-Miranda statements — specifically “I stand

between you and the lions out there. . . and they’re gonna try and say that you did it

all” and “everybody said . . . you did a whole bunch of stuff” — as a veiled threat

to throw appellant to the “lions” who would charge appellant with other crimes

unrelated to the present incident that may not even involve appellant.           This

statement is incompatible with the presumption of innocence.           See Miller v.

Fenton, 474 U.S. 104, 116 (1985) (“[T]he admissibility of a confession turns as

much on whether the techniques for extracting the statements, as applied to this

suspect, are compatible with a system that presumes innocence and assures that a

conviction will not be secured by inquisitorial means as on whether the defendant’s

will was in fact overborne.”).17


      17
          Our colleague dissenting as to our voluntariness conclusion suggests that
whether a suspect’s will was overborne is a “fact-bound” aspect of the ultimate
legal question of voluntariness, and that we are required to “defer[] to [the trial
court’s] voluntariness finding” so long as the record supports it. See Opinion of
Epstein, J., at 53. In support, our colleague cites to a patent construction case in
which the Supreme Court relied by analogy on Miranda principles for the
proposition that “[t]he answer to the legal question about the voluntariness of the
confession may turn upon the answer to a subsidiary factual question[.]” Teva
Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 841–42 (2015) (citing
Miller, supra, 474 U.S. at 112–118).
                                        31

                                III.   Conclusion



      Considering the totality of the circumstances, with particular emphasis on

Detective Howland’s references to unspecified charges that a juvenile appellant

would face and his offer to stand between appellant and the “lions out there,” we

cannot conclude that Detective Howland’s pre-Miranda remarks left appellant with

a “real choice about giving an admissible statement.” See Hairston, supra, 905

A.2d at 780–82 (quoting Seibert, supra, 542 U.S. at 612).        From appellant’s

perspective, Detective Howland’s statements “ma[de] the situation appear

hopeless” and thereby constituted coercion. See Matter of D.A.S., supra note 12,


       We do not read Teva Pharmaceuticals to require the deference that our
colleague suggests. This characterization blurs the distinction between factual
findings and legal conclusions and would often permit the legal question of
voluntariness to evade review by this court altogether. Indeed, in the same
paragraph that our colleague cites, the Supreme Court stated that, in spite of the
deference required, “the ultimate question of construction [here, the equivalent
question is voluntariness] will remain a legal question.” Id. at 842. The Supreme
Court added that “[a]n appellate court will review the trial judge’s factual
determination about the alleged intimidation deferentially (though, after reviewing
the factual findings, it will review a judge’s ultimate determination of
voluntariness de novo).” Id. (citing Miller, supra, 474 U.S. at 112–118).
Similarly, our recent opinion in Turner v. United States explained that we defer to
the factual findings supported by the record, “but we do not accord comparable
deference to . . . the judge’s determination on the ultimate question of Brady
materiality [here, the equivalent question is voluntariness]. With due appreciation
for the fact-bound nature of this ultimate question, we must review it de novo on
appeal.” 116 A.3d 894, 915 (D.C. 2015). Thus, whether Detective Howland’s
statements expressly or impliedly coerced appellant to waive his Miranda rights is
a question that we review de novo.
                                         32

391 A.2d at 259; see also In re M.A.C., supra, 761 A.2d at 36 (citing In re Gault,

supra, 387 U.S. at 45) (stating that the “admissions and confessions of juveniles

require special caution”). Accordingly, while we conclude that appellant received

an effective Miranda warning and that Detective Howland’s pre-Miranda remarks

did not render the warning ineffective per se, we also conclude that appellant did

not voluntarily waive his Miranda rights. We reverse the trial court’s adjudication

of delinquency.



                                                     So ordered.



      EASTERLY, Associate Judge, concurring in part and dissenting in part: I

concur with the conclusion of Part II.B.2 that S.W. did not voluntarily waive his

Miranda rights. In my view, however, it is unnecessary and ill-advised for us to

reach the issue of the voluntariness of S.W.’s waiver.



      Our analysis should begin and end with an examination of the warnings the

detective gave to S.W. before S.W. waived his rights. To be sure, the detective

read from a preprinted card that addressed the topics mandated by Miranda.1 But

that was not all the detective said about S.W.’s rights to remain silent and to

      1
          Miranda v. Arizona, 384 U.S. 436 (1966).
                                        33

counsel, or about the detective’s own role in any interrogation that might follow.

Immediately prior to reading S.W. the rights card, the detective incorrectly

communicated to S.W. that he was not S.W.’s adversary; that he, unlike “the

lions,” i.e., his colleagues outside the room, was seeking to help S.W.; that the

lions were going to try to falsely accuse S.W. of things S.W. had not done; that the

only way he could help S.W. and keep the lions at bay was if S.W. talked; and that

he and S.W. could not talk unless S.W. waived his rights. Having delivered this

preamble, the detective then read aloud from the preprinted card and,

unsurprisingly, S.W. waived his rights—unsurprisingly, because the warnings as a

whole did not “reasonably convey to [S.W.] his rights as required by Miranda” and

did not under “these circumstances . . . function effectively.” See Missouri v.

Seibert, 542 U.S. 600, 611 (2004) (quoting Duckworth v. Eagan, 492 U.S. 195,

203 (1989)).



      “Just as no talismanic incantation is required to satisfy Miranda’s strictures,

it would be absurd to think that mere recitation of the litany suffices to satisfy

Miranda in every conceivable circumstance.” Id. (quoting California v. Prysock,

453 U.S. 355, 359 (1981)). In other words, we cannot be satisfied that adequate

and effective warnings have been given every time the police read from a
                                         34

preprinted rights card, no matter what else the police say. See id. That would miss

the point of Miranda entirely.



      In Miranda, the Supreme Court recognized “that the modern practice of in-

custody interrogation is psychologically rather than physically oriented.” 384 U.S.

at 448. The Court described a number of interrogation techniques, among them

“the Mutt and Jeff act,” a classic bad cop-good cop routine. 2 Id. at 452. It

explained that the police, “by trading on [an interviewee’s] insecurity about

himself or his surroundings[,] . . . . persuade, trick or cajole him out of exercising

his constitutional rights.” Id. at 455. The Court concluded that the “traditional”

totality-of-the-circumstances test for identifying involuntary confessions (more

easily employed when an individual was physically coerced) was not up to the task

of assessing the effect of these various psychological pressures on an individual

suspect and thus provided inadequate protection against compelled self-

incrimination. See id. at 457, 467; see also Seibert, 542 U.S. at 608; Dickerson v.


      2
          As the Court explained it:
      In this technique, two agents are employed. Mutt, the relentless
      investigator, who knows the subject is guilty and is not going to waste
      any time. . . . Jeff, on the other hand, is obviously a kindhearted man.
      . . . He disapproves of Mutt and his tactics and will arrange to get him
      off the case if the subject will cooperate. He can’t hold Mutt off for
      very long. The subject would be wise to make a quick decision.
Id. at 452.
                                         35

United States, 530 U.S. 428, 442 (2000). The Court was concerned that “[r]ights

declared in words,” namely, the right against compelled self-incrimination and the

right to the assistance of counsel, “might be lost in reality.” 384 U.S. at 443

(quoting Weems v. United States, 217 U.S. 349, 373 (1910)). It determined that

procedural safeguards were needed: warnings that could serve as a “clearcut fact”

that the interviewee had been advised and thus was aware of the constitutional

protections available to him in the adversarial setting of an interrogation.3 Id. at

468-69.


      3
         My colleague dissenting from the court’s determination that S.W.’s waiver
was involuntarily made seems to lose sight of the Miranda warnings’ essence as a
procedural protection; he seems to think our interest is only in ensuring the
veracity of any confession obtained.     False confessions are a real and serious
concern; but the rationale for Miranda warnings extends well beyond forestalling
false confessions. Miranda warnings are grounded in the right against compelled
self-incrimination. Miranda, 384 U.S. at 457-58, 465-66. As the Court in
Miranda explained:
      [T]he constitutional foundation . . . is the respect a government—state
      or federal—must accord to the dignity and integrity of its citizens. To
      maintain a ‘fair state-individual balance,’ to require the government
      ‘to shoulder the entire load,’ to respect the inviolability of the human
      personality, our accusatory system of criminal justice demands that
      the government seeking to punish an individual produce the evidence
      against him by its own independent labors, rather than by the cruel,
      simple expedient of compelling it from his own mouth.
Id. at 460 (internal citations omitted). Miranda warnings are also grounded in the
recognition that the right to counsel “is indispensable to the protection of the Fifth
Amendment privilege under the system we delineate today.” Id. at 469; see
Gideon v. Wainwright, 372 U.S. 335, 343 (1963) (explaining that an individual’s
right to the assistance of counsel when subject to a prosecution by the government
“is one of the safeguards of the Sixth Amendment deemed necessary to insure
                                          36

      With respect to these warnings, the Court made one thing pellucidly clear:

function was all. The Court eschewed “impotent and lifeless formulas.” 384 U.S.

at 443 (quoting Weems, 217 U.S. at 373). It never endorsed a script. Two core

constitutional rights had to be addressed—the right to remain silent and the right to

counsel (court-appointed if the individual could not afford to hire an attorney)—

and the individual had to be told that his words could be used against him in court

so that he would be “acutely aware that he is faced with a phase of the adversary

system—that he is not in the presence of persons acting solely in his interest.” Id.

at 469. But the Court was willing to leave the particular procedures and precise

phrasing to individual jurisdictions so long as these procedures and warnings

“adequately and effectively” protected individuals’ rights against coerced self-

incrimination. Id. at 467.4




fundamental human rights of life and liberty” (quoting Johnson v. Zerbst, 304 U.S.
458, 462 (1938))).
      4
           See id. at 444 (“[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the
privilege against self-incrimination.”); id. at 478-79 (detailing the warnings that are
required “unless other fully effective means are adopted to notify the person of his
right of silence and to assure that the exercise of the right will be scrupulously
honored”); id. at 490 (“Congress and the States are free to develop their own
safeguards for the privilege, so long as they are fully as effective as those described
above . . . .”).
                                          37

      “There [were] those, of course, who preferred the old way of doing things,”

i.e., “giving no warnings.” Seibert, 542 U.S. at 609. And attacks were mounted

against Miranda warnings—both direct, see, e.g., Dickerson v. United States, 530

U.S. 428 (2000), and indirect.      “The technique of interrogating in successive

unwarned and warned phases,” at issue in Seibert, was but one “police strategy

adapted to undermine the Miranda warnings.”5 Seibert, 542 U.S. at 609, 616. The

Court condemned that effort to deprive a defendant of “a real choice between

talking and remaining silent.” Id. at 609. And it emphatically stated that the “mere

recitation of the litany” would not always suffice; that the context in which these

recitations were made could disable these warnings; and that “it would be absurd to

think” otherwise. Id. at 611. The Court concluded by warning the “[s]trategists

dedicated to draining the substance out of Miranda” that they could not accomplish

indirectly “what Dickerson held Congress could not do by statute,” i.e., remove

Miranda warnings as a first-line defense against compelled custodial

interrogations.6 Id. at 617.



      5
          See Seibert, 542 U.S. at 610 n.2 (detailing other methods).
      6
        Although Seibert was plurality opinion, Justice Kennedy provided a fifth
vote for the determination that law enforcement officers do not comply with
Miranda if they advise a defendant of all the rights on the Miranda checklist but
communicate those warnings in a way that subverts their purpose. 542 U.S. at 621
(Kennedy, J., concurring) (“The Miranda rule would be frustrated were we to
allow police to undermine its meaning and effect.”).
                                         38

      Despite this admonition, these “strategists” did not give up after Seibert.

They simply changed tactics, for example, by spiking the recitation of rights with a

preamble that tells the interviewee in so many words: you really do not have a

choice; waiver is your only option.7 The Queens District Attorney’s Office in New

York tried this in 2007, when it instituted a practice of delivering scripted warnings

that commenced with detectives (with a prosecutor at their side) telling

interviewees, among other things, “this is your opportunity to tell us your story,”

and “[t]his will be your only opportunity to speak with us before you go to court on

these charges.” People v. Dunbar, 24 N.Y.3d 304, 308-09 (2014), cert. denied,

135 S. Ct. 2051 (2015), cert. denied, 135 S. Ct. 2052 (2015). The New York

courts—first the intermediate courts of appeal, then the highest court in the state—

decisively shut this practice down. The New York Court of Appeals explained that

this “preamble, which is at best confusing and at worst misleading, rendered the

subsequent Miranda warnings inadequate and ineffective.” Id. at 316. The court

further explained:

      7
         See, e.g., Yale Kamisar, Commentary, A Look Back at the “Gatehouses
and Mansions” of American Criminal Procedure, 12 OHIO ST. J. CRIM. L. 645, 654
& n.41 (2015) (“There is reason to believe that the delivery of the Miranda
warnings is sometimes, perhaps even routinely, undermined by police interrogators
who . . . inform suspects at the outset that they will not be able to tell the police
‘their side of the story’ unless they first waive their rights.”); Charles D.
Weisselberg, Mourning Miranda, 96 CALIF. L. REV. 1519, 1557-61 (2008)
(reviewing the use of “softening up” tactics designed to de-emphasize the
significance of the Miranda warnings and increase the likelihood of waiver).
                                         39

      Before they were read their Miranda rights, [the defendants] were
      warned, for all intents and purposes, that remaining silent or invoking
      the right to counsel would come at a price—they would be giving up a
      valuable opportunity to speak with an assistant district attorney, to
      have their cases investigated or to assert alibi defenses. The
      statements to “give me as much information as you can,” that “this is
      your opportunity to tell us your story” and that you “have to tell us
      now” directly contradicted the later warning that they had the right to
      remain silent. By advising them that speaking would facilitate an
      investigation, the interrogators implied that these defendants’ words
      would be used to help them, thus undoing the heart of the warning that
      anything they said could and would be used against them. And the
      statement that the prearraignment interrogation was their “only
      opportunity” to speak falsely suggested that requesting counsel would
      cause them to lose the chance to talk to an assistant district attorney.

Id.



      As a consequence, the Court of Appeals determined that the issue was not

whether “these defendants’ waivers were valid, but rather whether or not they were

ever ‘clearly informed’ of their Miranda rights in the first place.” Id. The court

determined that they were not. As the court explained, no one would defend

“Miranda warnings [that] were preceded by statements that were directly contrary

to those warnings (e.g., you are required to answer our questions; your statements

will be used to help you; you are not entitled to a lawyer).” Id. “The preamble did

the same thing, albeit in an indirect, more subtle way. . . . [A] reasonable person in
                                          40

these defendants’ shoes might well have concluded, after having listened to the

preamble, that it was in his best interest to get out his side of the story—fast.” Id.8



      The warnings delivered in this case were not, at least as far as we know, part

of some MPD-wide protocol, but they were of the same ilk as those employed in

Dunbar, consisting of a neutralizing preamble followed by a recitation of rights.

The detective gave his warnings to S.W. as follows:

      I’m gonna give you an opportunity to give your version of what
      happened today, cause . . . I stand between you and the lions out there.
      Cause they’re gonna think—right now we have a lotta things goin’ on
      out there, and they’re gonna try and say that you did it all. Okay?
      And I think what happened today was just a one-time thing. But
      before I came out here everybody said, you know, tryin’ to say you
      did a whole buncha stuff but . . . in order for us to have a
      conversation, I have to read you your rights and you have to waive
      your rights. If you answer no to any of the questions I ask you after I
      read you your rights, that’s all—I mean, I can’t have the interview,
      okay? It’s uh, what’s today’s date? Today’s the 22nd, it’s about 11:54
      p.m. You are under arrest. Before we ask you any questions, you

      8
         Other courts have similarly rejected Miranda warnings that obscure the
meaning of the rights the warnings are meant to protect. See, e.g., Hart v. Att’y
Gen. of State of Fla., 323 F.3d 884, 894 (11th Cir. 2003) (clarity of Miranda
warnings compromised where police told defendant both that incriminating
statements could be used against him and, inconsistently, that “honesty will not
hurt you”); United States v. San Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002)
(“‘What Miranda requires is meaningful advice to the unlettered and unlearned in
language which they can comprehend and on which they can knowingly act.’ In
order for the warning to be valid, the combination or the wording of its warnings
cannot be affirmatively misleading. The warning must be clear and not susceptible
to equivocation.” (quoting United States v. Connell, 869 F.2d 1349, 1351 (9th Cir.
1989))).
                                        41

      must understand what your rights are. . . . [Rights card is read]. Do
      you understand these rights?

S.W. responded yes, and then waived.



      These warnings were just as confusing and misleading as those employed in

Dunbar.   The message that this was “an opportunity” for S.W. to better his

position, and the encouragement to take it quickly, “implied that [S.W.’s] words

would be used to help [him], thus undoing the heart of the warning that anything

[he] said could and would be used against [him].” 24 N.Y.3d at 316. 9 The

exhortations to “waive” and talk now also “directly contradicted the later warning

that [S.W.] had the right to remain silent,” id., not to mention a right to consult

with counsel.    The statement that if he did not waive, “that’s all,” also

communicated that S.W.’s exercise of his rights “would come at a price” of giving

up an irretrievable “opportunity” to speak to law enforcement. Id.



      In addition, these warnings also included a coercive element that the

warnings in Dunbar did not: the detective told S.W. that the lions were waiting for

him outside the room, that only the detective could hold them at bay, and that the

      9
         Cf. Lee v. State, 12 A.3d 1238, 1245-46 (Md. 2011) (holding that police
officer’s statement to defendant mid-interrogation, “[t]his is between you and me,
bud. Only me and you are here, all right?” negated prior waiver of Miranda
rights).
                                         42

lions were, in the words of my colleague, ready to “fabricate[] charges” against

S.W. 10 These statements vitiated the recitation of rights that followed.        The

implication that S.W.’s constitutional rights to silence and to counsel would afford

him no protection—that only the detective could help S.W.—turns Miranda on its

head.



        The detective in this case applied the exact sort of psychological pressure

that motivated the Supreme Court to require Miranda warnings in the first place.

The detective’s tactics were startlingly similar to the “Mutt and Jeff act” described

in Miranda, save for the fact that “Mutt”—here, “the lions”—remained off-stage.

Moreover, these statements “obvious[ly]” had the “manifest purpose” of

subverting Miranda and inducing S.W. not to remain silent and not to ask for a

lawyer.11 See Seibert, 542 U.S. at 613. After all, if the detective had truly wanted


        10
         As discussed below, I agree with the determination in Part II.B.2 of the
court’s opinion that these coercive statements rendered S.W.’s eventual waiver of
his rights involuntary. But the detective’s coercive statements also—first—
undermined the effectiveness of the warning itself.
        11
           While Justice Kennedy agreed with the Seibert plurality that Miranda
warnings may not be delivered in a manner that vitiates their effectiveness, he was
of the view that whether the police violated Miranda additionally turned on
whether the interrogating officer deliberately subverted the warnings. 542 U.S. at
622 (Kennedy, J., concurring). There can be no doubt that deliberate subversion is
evident on the facts presented here. See Hill v. United States, 858 A.2d 435, 444
(D.C. 2004) (inferring from the circumstances the “designed nature” of police
officer’s tactics violating Miranda).
                                         43

to help S.W., the detective could have done so without exhorting S.W. to waive his

rights (or without Mirandizing him at all), because Miranda would not have

imposed any limit on the government’s use of S.W.’s statements for that purpose.12



      Nevertheless, my colleagues in the majority as to Part II.A conclude that the

warnings in this case “adhered to the dictates of Miranda” and were “effectively

delivered.” To do so, they rely almost exclusively on Hairston v. United States,

905 A.2d 765 (D.C. 2006), a case applying Seibert to a very different set of facts

(so different that the government apparently did not deem Hairston relevant and

did not cite it to us). Glossing over those differences, my colleagues seem to read

Hairston as announcing a per se rule that, as long as a defendant does not speak

before the police read from the rights card, the recitation of the information on the

card constitutes an effective warning, no matter what else the police say in




      12
         Miranda only limits the use of an interviewee’s statements “against the
individual in court.” Miranda, 384 U.S. at 469 (emphasis added).
                                          44

conjunction with that recitation.13 But Hairston, which clearly employed a fact-

specific analysis, does not announce such a rule.14



      The question in Hairston was whether the detective had reduced the

effectiveness of the Miranda warnings by withholding them until after he had

outlined some of the evidence that the police had already developed against the

defendant. 905 A.2d at 769-70. When speaking to the defendant in Hairston, the

detective stuck to the facts. Unlike in this case, the detective made no affirmative

representations to the defendant about the detective’s ability to protect the


      13
           My colleagues minimize the detective’s statements in this case by
characterizing them as “embellishments.” But the statements the detective made
before reading the rights card did not “embellish” S.W.’s rights, i.e., make them
more attractive; instead, the detective made these rights seem unhelpful, even
hurtful to S.W.
      14
          My colleagues warn that there is no “per se rule that invalidates any
Miranda warning as a matter of law if that warning is accompanied by statements
inconsistent with Miranda.” Opinion of Blackburne-Rigsby, J., at 11 n.7. But if
anyone is in danger of announcing a per se rule, it is they. The majority embraces
a “perspective of appellant” (i.e., the interviewee) test to assess the effectiveness of
the warnings. Id. at 15-16. But the effectiveness of Miranda warnings is supposed
to be assessed objectively. See Seibert, 542 U.S. at 611-13. Meanwhile, “asking
whether, based on the totality of the circumstances, the pre-Miranda remarks and
the subsequent Miranda warning permitted appellant to knowingly, intelligently,
and voluntarily waive his Miranda rights,” Opinion of Blackburne-Rigsby, J., at
15, is nothing more than an inquiry into the validity of the waiver. Thus, aside
from taking notice of the fact that Detective Howland read S.W. the rights card, the
majority’s “effectiveness” analysis collapses into a voluntariness test—thereby
creating a rule that deems warnings per se effective so long as the rights card is
read.
                                         45

defendant from hostile forces, much less did he exhort the defendant to waive his

rights so that the detective could “help” him. And unlike in this case, nothing the

detective said obscured the nature of the rights he recited to the defendant. Before

reading the defendant the rights card, the detective in Hairston simply asked the

defendant whether “he want[ed] any help in this case, and . . . want[ed] to tell [the

detective] his side of the story.” Id. at 772. Based on the particular facts of the

case, this court held that the Miranda warnings were effective. Id. at 782. But we

indicated that, “[d]epending on context,” similar behavior by the police might

violate a defendant’s rights, and that we would not approve of tactics that

“resemble[d] the kind of mental games that largely generated the Miranda decision

itself.” Id. (quoting United States v. Brown, 737 A.2d 1016, 1021 (D.C. 1999)).

As explained above, the tactics used in S.W.’s case do fall into that category; thus

Hairston does not support my colleagues’ determination that the Miranda

warnings delivered to S.W. were effective.



      The court ultimately reaches the right result in this case—reversal—based

on the determination that S.W.’s waiver of his rights was involuntary. See Part

II.B.2; Part III. But it does so by holding that S.W. was subjectively coerced by

the very statements it determines did not objectively compromise the effectiveness

of the recitation of S.W.’s rights.     My colleague in dissent on the issue of
                                         46

voluntariness rightly points out that the majority opinion is in tension with itself.

He asserts that this tension supports a conclusion that S.W.’s waiver was voluntary.

For the following reasons, I disagree.



      It is “our judicial duty,” even as we view the facts in the light most favorable

to the government, to “indulge every reasonable presumption” against S.W.’s

waiver of his rights.15 Dorsey v. United States, 60 A.3d 1171, 1204 (D.C. 2013)

(quoting Zerbst, 304 U.S. at 464). To determine if S.W.’s will was overborne, the


      15
           My dissenting colleague on this issue expresses concern that we are
giving insufficient deference to the trial court’s findings of fact. See dissenting
opinion of Epstein, J., at Part III.A. Preliminarily, it is important to distinguish
factual findings that relate to the voluntariness of S.W.’s statements (e.g., which
interview questions he answered). The concern of the majority opinion is the
voluntariness of the waiver. On this subject, the trial court actually made very few
factual findings, because the basic facts with respect to how the warnings were
delivered and how S.W. waived were not controverted. They were captured on a
video recording which was admitted into evidence at trial. That recording is now
part of the record on appeal and nothing bars us from considering it. See Hood v.
United States, 28 A.3d 553, 564 (D.C. 2011) (“We defer to the trial court’s
reasonable determination of disputed facts.” (emphasis added)); see also, e.g.,
Turner v. United States, No. 12-CO-1362, 2015 WL 3649305, at *30 (D.C. June
11, 2015) (examining whether there was evidence of “coercion or lack of
voluntariness on the videotape” of appellant’s interrogation by police).
       In the absence of any factual disputes, whether S.W.’s waiver was
constitutionally valid is a pure question of law. We owe no deference to the trial
court in conducting our analysis; rather, we review this constitutional claim de
novo. Castellon v. United States, 864 A.2d 141, 158 (D.C. 2004) (“This court
applies a de novo standard of review to the legal determination regarding
voluntariness . . . .” (quoting United States v. Turner, 761 A.2d 845, 853 (D.C.
2000))); In re M.A.C., 761 A.2d 32, 38 (D.C. 2000).
                                         47

majority opinion rightly looks to what the detective said to S.W. just before he

waived his rights. The majority opinion also rightly looks to S.W.’s ability to

understand and appreciate his circumstances. S.W. was just fifteen years old and,

as such, was generally more susceptible to influence and coercion.16 Moreover, as

the government attorney in this case acknowledged, S.W. had been diagnosed with

ADHD and depression and was receiving special education and related services;




      16
           In light of studies further documenting juveniles’ vulnerabilities in
interrogation situations, the American Psychological Association has called for
reforms in interrogation procedures, see AMERICAN PSYCHOLOGICAL ASSOCIATION,
COUNCIL OF REPRESENTATIVES, RESOLUTION ON INTERROGATIONS OF CRIMINAL
SUSPECTS (August 2014), available at http://www.apa.org/about/policy/
interrogations.aspx, and the International Association of Chiefs of Police has
developed a new training program in conjunction with the United States Office of
Juvenile Justice and Delinquency Prevention that “instructs officers to explain
Miranda warnings in language teenagers will understand and not to make false
promises of leniency, because of youth’s proclivity toward gullibility,” Jan
Hoffman, In Interrogations, Teenagers Are Too Young to Know Better, N.Y.
TIMES: WELL (October 13, 2014), http://well.blogs.nytimes.com/2014/10/13/in-
interrogations-teenagers-are-too-young-to-know-better/. See also Barry C. Feld,
Juveniles’ Competence to Exercise Miranda Rights: An Empirical Study of Policy
and Practice, 91 MINN. L. REV. 26, 57-58 (2006) (“Juveniles’ lesser understanding
of rights and appreciation of legal consequences enhances their vulnerability to
interrogation tactics . . . . Youths’ waiver decisions reflect a greater tendency than
adults to comply with authority figures and to acquiesce to police officials.
Interrogation techniques designed for adults may prove especially problematic
when deployed against young suspects.”); id. at 48 (“To summarize,
developmental psychological research assessing several domains of legal and
adjudicative competence consistently indicates that adolescents as a class are at a
significant disadvantage in the interrogation room . . . compared with adults. For
youths fifteen years of age and younger, these disabilities emerge clearly in the
research.”).
                                         48

his circumstances prompted the court to observe at sentencing that S.W. “need[ed]

a lot of work, a lot of help,” both in terms of treatment and medication.17



      Beyond these facts, I cannot ignore the timing of S.W.’s interrogation, a

factor that has received little attention.       According to the detective who

interrogated S.W., the police arrested S.W. just after the incident at 10:20 a.m., and

conducted a show-up identification soon after. But, as the video recording of the

interview reflects, the detective read S.W. his rights at 11:54 p.m. Thus S.W. was

in custody for over twelve hours before being interrogated,18 and his exhaustion is

evident in the video: when he enters the room, he immediately puts his head on his

knees, as if to go to sleep.



      The unexplained twelve-hour wait between arrest and interview, S.W.’s age

and particular cognitive issues, and the confusing, misleading, and coercive


      17
          Although the trial court found that S.W. did not have immediate mental
health concerns and “seemed lucid,” his competence was not the question. Rather,
the question was the validity of his waiver. As to that legal question, as explained
above, see supra note 15, we do not defer to the trial court and we undoubtedly
may consider S.W.’s youth, cognitive issues, and general mental health.
      18
         The record is silent as to what the police did with S.W. for those twelve
hours, but this evidentiary deficit counts against the government, as it is the
government’s burden to prove that S.W.’s waiver was voluntary. Dorsey, 60 A.3d
at 1177; Di Giovanni v. United States, 810 A.2d 887, 892 (D.C. 2002) (citing In re
M.A.C., 761 A.2d at 36).
                                         49

Miranda warnings S.W. received before he waived his rights amply support the

majority opinion’s conclusion that S.W.’s waiver was not voluntary. 19 Thus, I

have no reservations about the court’s conclusion that S.W.’s waiver of his

Miranda rights was invalid.



      Nevertheless, I think it is ill-advised for the court to resolve this case on

voluntariness grounds for two reasons. First, by upholding the warnings delivered

in this case as effective, this court reduces Miranda warnings to a technicality, an

incantation with no force or real meaning—a result, I submit, that cannot be

squared with the Supreme Court’s decision in Miranda or its progeny. Second and

relatedly, the subjective totality-of-the-circumstances analysis on which the

majority opinion relies is an imperfect safeguard for the rights the Supreme Court

in Miranda sought to protect with clearcut warnings. In other words, although this

opinion gives well-deserved relief to S.W., it dismantles the critical protection that

Miranda is supposed to extend to all individuals who are in custody and subjected

to interrogation. Accordingly, although I concur in the determination that S.W.’s

waiver was involuntary and in the judgment of reversal, I dissent from the decision

not to resolve this case on the ground that the detective’s Miranda warnings were


      19
          I would not reach the question whether S.W.’s waiver was knowing or
intelligent, but I think it is far from clear that it was.
                                          50

ineffective. These warnings were both confusing and coercive, and they virtually

guaranteed that S.W. would waive the very rights they were meant to protect.



      EPSTEIN, Associate Judge, concurring in part and dissenting in part: I

concur in the conclusions that (1) Detective Howland’s prefatory comment did not

make the subsequent Miranda warnings ineffective and (2) S.W. knowingly and

intelligently waived his Fifth Amendment rights. I am, however, constrained to

dissent from the holding that S.W.’s self-incriminating statements were

involuntary. In my view, the majority opinion reaches the incorrect conclusion for

three main reasons. First, the majority opinion incorrectly applies the standard of

review by failing to give the trial court’s reasonable inferences and weighing of the

evidence the deference to which they are entitled. Second, the majority opinion

conflates the well-established distinction between a permissible statement that a

suspect can help himself by cooperating and an impermissible statement that a

suspect will be penalized if he chooses not to talk. Third, the majority opinion

does not follow our precedent when it gives overriding importance to the

detective’s initial statement to S.W. instead of treating it, as the trial court did, as

only one factor in the totality of the circumstances.
                                       51

      As the majority recognizes, “‘cases in which a defendant can make a

colorable argument that a self-incriminating statement was “compelled” despite the

fact that the law enforcement authorities adhered to the dictates of Miranda are

rare.’”   Dickerson v. United States, 530 U.S. 428, 444 (quoting Berkemer v.

McCarty, 468 U.S. 420, 433 n.20 (1984)). The majority concludes that this is one

of those rare cases.     This case, however, is even more rare than the cases

contemplated by the Supreme Court: the majority concludes not just that S.W.

made a “colorable” argument that his statement was compelled, but that his

argument is so strong that we should reject the trial court’s finding that his

statement was voluntary. The evidence that Detective Howland overbore S.W.’s

free will is not so one-sided or overwhelming that we can or should substitute our

judgment for the trial court’s.



      Dorsey v. United States, 60 A.3d 1171, 1203 (D.C. 2013) (en banc),

establishes that we must defer to the trial court’s choice between two permissible

views of the overall evidence concerning the voluntariness of a confession. In

Dorsey, we “consider[ed] the question of voluntariness on the present record to be

exceedingly close,” id., but because of the deferential standard of review, we

affirmed the trial court’s finding that the defendant confessed voluntarily.

Similarly in Beasley v. United States, 512 A.2d 1007, 1016 (D.C. 1986), “we d[id]
                                          52

not condone certain of the tactics used by the police in this case, and such tactics

have made this a close case. Yet, we [we]re satisfied that the totality of the

circumstances supports the trial court’s finding of voluntariness.”        Here, the

question is not nearly as close as it was in Dorsey and no closer than it was in

Beasley, so affirmance is again the right result.



I.    The standard of review



      In Dorsey, the court en banc reaffirmed that “[i]n reviewing the denial of a

motion to suppress statements on constitutional grounds, we must defer to the trial

court’s findings of historical fact as long as they are not clearly erroneous.” See 60

A.3d at 1190 (footnote and citations omitted). “The ‘clearly erroneous’ standard of

review is highly constraining; it ‘plainly does not entitle a reviewing court to

reverse the finding of the trier of fact simply because it is … convinced that had it

been sitting as the trier of fact, it would have weighed the evidence differently.’”

Id. at 1205 (quoting Anderson v. Bessemer City, 470 U.S. 564, 573-74 (1985)).

Where “there are two permissible views of the evidence, the factfinder’s choice

between them cannot be clearly erroneous.” See 60 A.3d at 1205-06 (quotation

and citation omitted).
                                          53

      This deference includes the trial court’s weighing of the evidence: “as a

reviewing court, we may not usurp the prerogative of the [trial] judge, as the trier

of fact, to determine credibility and weigh the evidence.” See Dorsey, 60 A.3d at

1205 (emphasis added, quotation and footnote omitted).         In addition, “we must

view … the reasonable inferences that may be drawn from [the facts] in the light

most favorable to sustaining the court’s ruling.” See id. at 1190 (footnote and

citation omitted). Because we defer to the trial court’s weighing of the evidence

and reasonable inferences, deference to a voluntariness finding is required even

when a suspect’s confession was videotaped, although we of course consider

whether the videotape actually supports the trial court’s findings. See id. at 1205.



      “However, our review of the trial court’s legal conclusions is de novo.”

Dorsey, 60 A.3d at 1190 (footnote and citation omitted); see, e.g., In re M.A., 33

A.3d 378, 381 (D.C. 2011). This distinction between factual findings and legal

conclusions reflects that “the trial court’s determination of voluntariness is itself a

mixed question of fact and law ….” Frost v. United States, 618 A.2d 653, 657

(D.C. 1992) (quotations and citations omitted).



      That said, “an issue does not lose its factual character merely because its

resolution is dispositive of the ultimate” legal question. Miller v. Fenton, 474 U.S.
                                         54

104, 113 (1985) (discussing appellate review of the voluntariness of confessions).

“The answer to the legal question about the voluntariness of the confession may

turn upon the answer to a subsidiary factual question, say ‘whether in fact the

police engaged in the intimidation tactics alleged by the defendant.’” See Teva

Pharmaceuticals USA, Inc. v. Sandoz, Inc., 135 S. Ct. 831, 842 (2015) (quoting

Miller, 474 U.S. at 112).1 “An appellate court will review the trial judge’s factual

determination about the alleged intimidation deferentially (though, after reviewing

the factual findings, it will review a judge’s ultimate determination of

voluntariness de novo).” Teva Pharmaceuticals, 135 S. Ct. at 842. As we recently

held in a case involving an analogous issue, we review de novo on appeal the

ultimate question of whether evidence withheld in violation of Brady is material,

but we give “due appreciation for the fact-bound nature of that ultimate question”

and therefore “defer in this case to the motions judge’s assessments of credibility,

evaluations of the weight of the evidence and the inferences to be drawn therefrom,

and findings of historical fact, so long as they have record support.” Turner v.

United States, 116 A.3d 894, 915 (D.C. 2015).




      1
         Teva Pharmaceuticals decided the standard of review of a trial court’s
construction of patents, but it relied on Miller, a case involving the analogous issue
of appellate review of trial court decisions about the voluntariness of confessions.
                                         55

      Independent appellate review of ultimate determinations of voluntariness

serves three purposes: (1) “a unitary system of law” requires consistent results in

cases with no significant difference in the facts; (2) independent review is

“necessary if appellate courts are to maintain control of, and to clarify, the legal

principles” because the legal rules “acquire content only through application,” and

(3) “de novo review tends to unify precedent and will come closer to providing law

enforcement officers with a defined set of rules which, in most instances, makes it

possible to reach a correct determination beforehand” about whether their conduct

is constitutional.   See Ornelas v. United States, 517 U.S. 690, 697 (1996)

(quotation omitted).    Ornelas involved appellate review of determinations of

probable cause and reasonable suspicion, but the reasons for de novo review of the

ultimate question apply equally to voluntariness of a confession.2



      Independent appellate review of the ultimate legal question empowers

appellate courts to reject trial courts’ findings of voluntariness when confessions

are “procured by means ‘revolting to the sense of justice.’” Miller, 474 U.S. at 109

(quoting Brown v. Mississippi, 297 U.S. 278, 286 (1936)).            De novo review
      2
          Although Ornelas held that “as a general matter determinations of
reasonable suspicion and probable cause should be reviewed de novo on appeal,”
the Supreme Court “hasten[ed] to point out that a reviewing court should take care
both to review findings of historical fact only for clear error and to give due weight
to inferences drawn from those facts by resident judges and local law enforcement
officers.” Id. at 699.
                                         56

requires reversal when “certain interrogation techniques, either in isolation or as

applied to the unique characteristics of a particular suspect, are so offensive to a

civilized system of justice that they must be condemned under the Due Process

Clause of the Fourteenth Amendment.” See Miller, 474 U.S. at 109. An appellate

court’s duty to make an independent evaluation of the record “is not limited to

instances in which the claim is that the police conduct was inherently coercive,”

and it “applies equally when the interrogation techniques were improper only

because, in the particular circumstances of the case, the confession is unlikely to

have been the product of a free and rational will.” Id. at 110; see, e.g., Arizona v.

Fulminante, 499 U.S. 279, 287 (1991) (“Although the question is a close one, we

agree with the Arizona Supreme Court’s conclusion that Fulminante’s confession

was coerced” because he was told that his life would be in danger if he did not

confess).



      Thus, the “fact-bound” aspect of the ultimate legal question, see Turner, 116

A.3d at 915, is whether a particular suspect’s “will was in fact overborne,” and the

ultimate legal question is “whether the techniques for extracting the statements, as

applied to this suspect, are compatible with a system that presumes innocence and

assures that a conviction will not be secured by inquisitorial means.” See Miller,

474 U.S. at 116. As an appellate court considering the ultimate legal question, we
                                         57

ask whether, “even if [the particular suspect] were unusually resistant to

psychological coercion, ‘the technique used here risks overcoming the will of the

run-of-the-mill suspect.’” United States v. Harrison, 34 F.3d 886, 892 (9th Cir.

1994) (quoting Collazo v. Estelle, 940 F.2d 411, 426 (9th Cir. 1991) (Kozinski, J.,

concurring)).



II.   Benefits of cooperation vs. penalties for non-cooperation



      Before I turn to the facts of this case, it is useful to discuss a critical

distinction between (1) telling a suspect that he can help himself by cooperating

and (2) telling a suspect he will be penalized if he chooses not to cooperate. The

first type of statement by the police does not necessarily invalidate a confession,

although it may combine with other factors to support a finding that a confession

was involuntary. On the other hand, the second type of statement is highly likely

to preclude a finding that a confession is voluntary.



      This court and other courts have consistently held that telling a suspect that

he can help himself by waiving his Fifth Amendment rights is only one factor that

courts should consider in deciding whether a defendant’s statement to the police

was voluntary. Beasley confirms that promises of leniency do not necessarily
                                          58

invalidate a confession:    “any alleged promises by the police of leniency in

exchange for a confession must be viewed by the trial court under the totality of all

the surrounding circumstances to determine whether they were sufficient to

overbear [the suspect’s] free will.” 512 A.2d at 1016 (quotation and citation

omitted). Similarly, in United States v. Thomas, 595 A.2d 980, 983 (D.C. 1991),

we concluded that an interview including threats and promises involving

cooperation was “plainly not without its inducive elements” but did not involve

“police oppression or overreaching approaching the type” requiring suppression of

confessions as involuntary. M.A., 33 A.3d at 381-82, concluded that statements by

the detective to the suspect that “the best thing you can do is tell the truth” did not

directly contradict the Miranda warnings or invalidate his voluntary waiver.

Citing M.A. and other cases, the majority opinion agrees that “not all forms of

pressure to waive Miranda rights to avoid adverse consequences are coercive and

in violation of Miranda.”



      Likewise, the Supreme Court upheld a trial court’s finding that police

officers’ statements that a cooperative attitude would benefit the suspect did not

coerce the confession, even though the suspect was only 16 years old. Fare v.

Michael C., 442 U.S. 707, 727 (1979). Multiple federal courts of appeal have

concluded that a police officer’s statement that a suspect can help himself by
                                          59

speaking does not render the suspect’s subsequent statement involuntary. E.g.,

United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995) (“Generally, promises of

leniency will not render a confession involuntary.”); Miller v. Fenton, 796 F.2d

598, 607, 608-10 (3rd Cir. 1986) (a confession was voluntary even though the

interrogator assured the suspect that he just wanted to help and did not believe the

suspect was a criminal who should be punished); United States v. Umaña, 750 F.3d

320, 344 (4th Cir. 2014) (“We have consistently declined to hold categorically that

a suspect’s statements are involuntary simply because police deceptively highlight

the positive aspects of confession,” including telling “the suspect that by talking to

them he would do nothing but help himself” or “things would go easier on the

suspect if he confessed”) (quotations and citations omitted); United States v.

Ornelas-Rodriguez, 12 F.3d 1339, 1348 (5th Cir. 1994) (upholding finding that

defendant voluntarily confessed after being told there were advantages to

cooperation); United States v. Otters, 197 F.3d 316, 318 (8th Cir. 1999) (“The

promise of leniency − not to file charges associated with the traffic stop − was not

enough by itself to make Otters’s statements involuntary.”); United States v.

Okafor, 285 F.3d 842, 847 (9th Cir. 2002) (“Inducements to cooperate are not

improper and do not render a suspect’s statement involuntary unless under the total

circumstances it is plain that they have overborne the free will of the suspect.”).
                                         60

      On the other hand, the police may not tell a suspect that exercising his right

to remain silent will make him worse off than he would otherwise be. Albeit in

dictum, Dorsey approvingly quoted Harrison for the proposition that “there are no

circumstances in which law enforcement officers may suggest that a suspect’s

exercise of the right to remain silent may result in harsher treatment by a court or

prosecutor.” Dorsey, 60 A.3d at 1204 & n.109 (quoting Harrison, 34 F.3d at 891-

92). At the same time, Harrison recognized that “the police generally may offer to

tell the prosecutor about the defendant’s cooperation and suggest that cooperation

may increase the likelihood of a more lenient sentence.” 34 F.3d at 891 (citations

omitted). Harrison went on, “In many ways, both types of statements are simply

different sides of the same coin: ‘waive your rights and receive more favorable

treatment’ versus ‘exercise your rights and receive less favorable treatment.’” Id.

However, Harrison drew a substantive distinction between the two types of

statements because “[r]efusal to cooperate is every defendant’s right under the fifth

amendment” and “[u]nder our adversary system of criminal justice, a defendant

may not be made to suffer for his silence.” Id.3



      3
          We have recognized the same issue in the sentencing context, where a
sentencing judge may impose a lighter sentence if a defendant decides to plead
guilty and accept responsibility, but may not impose a heavier sentence on a
defendant because the defendant decides to exercise his constitutional right to a
jury trial. “The line between affording leniency to a defendant who has admitted
guilt by pleading guilty and punishing one who has denied his guilt and proceeded
                                         61

      “The line between proper and permissible police conduct and techniques and

methods offensive to due process is, at best, a difficult one to draw.” Dickerson,

530 U.S. at 444 (quotation and citation omitted). Nevertheless, we draw the line

between (1) statements about the benefits to a suspect of cooperation and (2)

statements threatening harsher treatment of suspects who exercise their

constitutional rights. If the interrogator’s statement is on the wrong side of the

line, our obligation to conduct a de novo assessment of the ultimate legal question

of voluntariness generally requires us to suppress a confession even if the trial

court found that the suspect nevertheless confessed voluntarily. “We can’t allow

police to advise suspects that they will pay dearly for taking advantage of their

right to counsel precisely because some suspects will succumb to the pressure,

even if this suspect did not.” Collazo, 940 F.2d at 427 (Kozinski, J., concurring).



      In drawing this line in any specific case, we must keep in mind the fact that

“[c]ustodial interrogations implicate two competing concerns.”        See Moran v.

Burbine, 475 U.S. 412, 426 (1986). On the one hand, police interrogation is a

necessary “tool for effective enforcement of criminal laws,” and “[a]dmissions of

guilt are … essential to society’s compelling interest in finding, convicting, and

punishing those who violate the law.” Id.; see Davis v. United States, 512 U.S.

to trial is elusive, to say the least.” Coles v. United States, 682 A.2d 167, 169
(D.C. 1996).
                                         62

452, 461 (1994) (one “side of the Miranda equation” is “the need for effective law

enforcement”). “On the other hand, the Court has recognized that the interrogation

process is inherently coercive and that, as a consequence, there exists a substantial

risk that the police will inadvertently traverse the fine line between legitimate

efforts to elicit admissions and constitutionally impermissible compulsion.”

Moran, 475 U.S. at 426 (quotation and citation omitted).         Thus, in deciding

whether the interrogator crossed the line in a particular case, we must strike a

balance between society’s compelling interest in uncoerced admissions of guilt and

protecting suspects from coercion.



III.   Applying the standard of review to the facts



       If we apply the correct standard of review to S.W.’s confession, the result is

straightforward: the trial court’s finding that S.W.’s will was not overborne is

based on a permissible view of the evidence, so we must defer to it.



       The key factor in the majority’s conclusion that S.W.’s confession was not

voluntary is Detective Howland’s brief prefatory statement before he gave the

Miranda warning and before S.W. knowingly and voluntarily waived his

constitutional rights. For the reasons I explain in Section A, characterizing the
                                          63

detective’s statement as threatening a penalty for silence is inconsistent with the

record and fails to give the required deference to the trial court’s inferences. For

the reasons I explain in Section B, the majority opinion errs by giving overriding

weight to the detective’s statement instead of treating that statement, as the trial

court did, as one factor to be weighed in assessing whether S.W.’s will was

overborne. Finally, Section C explains why the reasons for independent appellate

review of ultimate determinations of voluntariness do not support disregarding the

trial court’s weighing of the relevant factors.



   A. Detective Howland’s statement



      The majority opinion treats Detective Howland’s pre-Miranda statement to

S.W. as an attempt to impose a “penalty” on S.W. for invoking his constitutional

rights. For the reasons explained in Part II, I agree that if Detective Howland had

made such a threat, he would have engaged in prohibited coercion. However, I do

not agree that Detective Howland crossed this line.        His statement at most

approached the kind of general statement about benefits of cooperation that we and

other courts have routinely found not to be inherently coercive and to be consistent

with a voluntary waiver.
                                         64

      As a threshold matter, we must defer to the trial court’s assessment of

Detective Howland’s ambiguous statements. The majority opinion agrees that the

trial court fairly characterized Detective Howland’s introductory remarks as

general statements that simply provided context for the boilerplate Miranda

warnings that followed.     The majority opinion acknowledges that “Detective

Howland did not explicitly tell appellant that ‘it might be worse’ for him if he

invoked his rights, as in Collazo.” The majority opinion adds that Detective

Howland “strongly implied it,” but we should defer to the trial court’s reasonable

inferences from the detective’s words. “An appellate court will review the trial

judge’s factual determination about the alleged intimidation deferentially ….” See

Teva Pharmaceuticals, 135 S. Ct. at 842 (citing Miller, 474 U.S. at 112); Loza v.

Mitchell, 766 F.3d 466, 479 (6th Cir. 2014) (concluding, after reviewing the video

recording and transcript of the defendant’s interrogation, that it was “not

unreasonable” for the state court to determine that the detectives did not threaten to

harm the defendant’s girlfriend and unborn child unless he confessed).



      Although he set himself apart from the lions who thought S.W. “did a whole

bunch of stuff,” Detective Howland did not suggest to S.W. that he would give

S.W. a pass if he made incriminating statements. To the contrary, Detective

Howland explicitly told S.W. that he thought S.W. committed the carjacking: “I
                                         65

think what happened today was just a one-time thing.” Moreover, his statement to

S.W. about the lions was immediately followed by the Miranda warning that any

statement by S.W. can be used against him in court. See Jaswal, 47 F.3d at 542

(“There is no inconsistency between the required warning that the defendant’s

statement may be used against him and a further statement that cooperation can

help him” because “[b]oth are true”). The trial court reasonably found that S.W.

understood that he was facing a significant set of charges.



       To the extent that Detective Howland implied that cooperation might help

S.W., his statement was not inherently coercive. See Part II above. In Fare, “[t]he

police did indeed indicate that a cooperative attitude would be to respondent’s

benefit,” but the Supreme Court nevertheless upheld a finding that the confession

was voluntary because the officers’ “remarks in this regard were far from

threatening or coercive” – even to a 16-year-old juvenile. 442 U.S. at 727. At

most, Detective Howland implicitly suggested what the interrogator in Fare

explicitly told the juvenile in that case − that a cooperative attitude would benefit

S.W.



       As the videotape shows, Detective Howland’s manner makes his words even

farther from threatening or coercive than they may seem in a written transcript.
                                         66

S.W. himself correctly characterizes Detective Howland’s tone as “avuncular.”

Detective Howland was matter-of-fact and low key − not aggressive, threatening,

or overbearing.    Cf. Collazo, 940 F.2d at 416 (one factor contributing to

coerciveness was that the interrogator’s tone and presentation were “insistent”).

Detective Howland was also rather distracted:        the transcript in the majority

opinion omits that when Detective Howland first started to say “I stand between

you …,” his phone rang, and he looked at his phone and started over; then he again

did something with his phone and had to re-focus his attention. As the trial court

stated, and the videotape confirms, Detective Howland kept his physical distance

from S.W. – not getting in S.W.’s face or space.



       The majority opinion characterizes Detective Howland’s statement “as a

veiled threat” to penalize S.W. if he invokes his constitutional rights. It was up to

the trial court to determine what, if anything, was behind any veil, but the record

indicates that Detective Howland’s statement was not a threat, veiled or otherwise.

It would be coercive if Detective Howland had told S.W., as the detectives told the

suspect in Dorsey, that law enforcement officials “are going to up the charges

unless you tell the truth.” See 60 A.3d at 1186. But Detective Howland said

nothing like that. He stated that the lions had already concluded that S.W. “did a

whole bunch of stuff,” and he did not tell S.W. – directly or indirectly − that the
                                        67

lions would try to pin other crimes on S.W. only if he remained silent. I therefore

do not agree with the majority opinion that Detective Howland told S.W. that the

lions would attempt to hold him responsible for crimes in addition to the carjacking

“unless appellant accepted the opportunity ‘to give [his] version of what

happened.’” At most, the detective said that things were already bad for S.W. and

might get better if he talked – not that things were not nearly as bad as they would

become if he chose not to talk.



      The majority opinion also states, “Taken together, these statements seem to

suggest that if appellant remained silent, he would face fabricated charges for

things that he did not do.” There is absolutely no support in the record for any

speculation that (1) the lions would fabricate charges if S.W. remained silent, or

(2) the lions had already fabricated charges and did not genuinely believe S.W. was

guilty of any crime other than the carjacking. Notably, S.W. does not argue that

the “lions” fabricated other charges or that they would do so if and only if he

remained silent, and he attributes to them only an “erroneous belief” that S.W. was

responsible for other crimes. When Detective Howland testified at the hearing on

the suppression motion, the defense did not elicit, and the government had no

reason to elicit, testimony from him about the good faith of the other officers. In

any event, to overturn the trial court’s finding that S.W.’s will was not overborne,
                                         68

we need more than statements that only “seem to suggest” that the police were

overreaching.



      For these reasons, the majority’s spin on Detective Howland’s words

effectively erases the critical distinction discussed in Part II between telling a

suspect that cooperation will benefit him and telling him that he will be penalized

if he exercises his rights. If Detective Howland’s words constitute a threat to

impose a penalty on S.W. for invoking his constitutional rights, then any and all

statements that any interrogator makes about the benefits of cooperation would

constitute a threat.   The majority opinion asserts, “In essence, by portraying

himself as protective from the ‘lions out there,’ Detective Howland supplied the

reverse implication: that if appellant does not waive his rights, Detective Howland

will throw him to the ‘lions.’” But if any statement that cooperation will help

necessarily has the “reverse implication” that the interrogator will retaliate against

the suspect if he does not cooperate, the distinction between the two types of

statements would be eliminated. A defendant who chooses to forego any benefit

from cooperation by remaining silent may end up worse off than if he had chosen

to talk, but that does not mean he would be penalized for his silence. By drawing

the distinction between promises of benefits from cooperation and threats of

retaliation for non-cooperation, the courts have struck the appropriate balance
                                         69

between (a) protecting society’s compelling interest in keeping interrogation as an

effective tool to elicit confessions from guilty people and (2) protecting innocent

people from an interrogation process that is inherently coercive. See Moran, 475

U.S. at 426-27. The majority opinion upsets this balance and undermines this

compelling societal interest.



      Put differently, Detective Howland did not say anything calculated to

produce a false confession about the carjacking. 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.” See United States v. Villalpando,

588 F.3d 1124, 1128 (7th Cir. 2009). Detective Howland did not say anything that

would influence a rational person who is innocent to decide that a false confession

to the carjacking would make him better off than remaining silent. As with the

juvenile’s confession in In re D.A.S., 391 A.2d 255, 259 (D.C. 1978), “the record

provides an adequate basis for the trial court’s conclusion that the confession was

the product of a knowing, intelligent and voluntary waiver of appellant’s rights,”
                                          70

and the interrogation technique “practiced here by the police was not of the sort

which would induce a false confession or would overcome the appellant’s will.”4



   B. The totality of the circumstances and the weighing of the evidence



      “The presence of official compulsion – ‘coercive police activity’ or ‘police

overreaching’ − is a necessary predicate to the finding that a confession is not

voluntary within the meaning of the Due Process Clause.” Turner, 116 A.3d at

935. “That said, in determining whether a defendant’s will was over-borne in a

particular case, the Court has assessed the totality of all the surrounding

circumstances − both the characteristics of the accused and the details of the

interrogation.” Id. (quotation, brackets, and citation omitted). Likewise, “the

totality-of-the-circumstances analysis still applies in determining the validity of the

waiver and the voluntariness of the statement even though the interrogation

involves a juvenile.” In re M.A.C., 761 A.2d 32, 36 (D.C. 2000) (citing Fare, 442

      4
         The other dissenting opinion suggests that in making these statements
based on holdings in our earlier cases, I am losing sight of the purpose of Miranda
warnings not only to forestall false confessions but also to protect the privilege
against self-incrimination.      As D.A.S. indicates, relevant to whether an
interrogator’s statement is coercive is whether the statement is likely to elicit a
false confession. Detective Howland’s statement does not fall into that category.
There is no suggestion that S.W. confessed to a crime he did not commit; the
victim identified S.W. in a show-up shortly after the carjacking and again at trial,
and S.W. did not contest at trial the victim’s account of his actions.
                                        71

U.S. at 725).     “‘[A]dmissions and confessions of juveniles require special

caution,’” but even with juveniles, “rather than giving overriding importance to

any one factor, the court must consider the totality of circumstances surrounding

the confession.” See D.A.S., 391 A.2d at 258 (quoting In re Gault, 387 U.S. 1, 45

(1967)).



      Instead of treating Detective Howland’s alleged threat as only a “necessary

predicate” to a finding of involuntariness, the majority opinion gives it the

“overriding importance” that D.A.S. holds it should not get.      The trial court

properly considered all the relevant factors in examining the totality of the

circumstances, and its comprehensive analysis reasonably supported its finding

that S.W.’s confession was voluntary.        As the majority opinion states, the

voluntariness “inquiry rests on many of the same factors mentioned in our

‘knowing and intelligent’ inquiry,” and the same factors that the majority opinion

agrees demonstrate that S.W. waived his rights using his own rational thought and

intellect also demonstrate that he waived them voluntarily.



      As I discussed in Section A, Detective Howland made only a general, non-

threatening suggestion that S.W. might help himself by cooperating, and his

manner was avuncular and matter-of-fact − not aggressive or relentless. After his
                                         72

prefatory statement, Detective Howland immediately gave effective Miranda

warnings, and as the majority opinion recognizes, it is a “rare” case “in which a

defendant can make a colorable argument that a self-incriminating statement was

‘compelled’ despite the fact that the law enforcement authorities adhered to the

dictates of Miranda ….” Dickerson, 530 U.S. at 444 (quotation and citation

omitted). The other relevant factors also strongly support, or are consistent with,

the trial court’s finding of that S.W.’s confession was not coerced.



      First, several objective factors involving the structure of the interview

support the finding of voluntariness. Detective Howland was the only detective

present during the interview, so this is not a case where a group of interrogators

bore down on a lone suspect.         S.W. confessed immediately after Detective

Howland began asking questions, and S.W. was not worn down by hours of

relentless questioning. See In re J.F., 987 A.2d 1168, 1177 (D.C. 2010) (“J.F.’s

vulnerability was exacerbated by the fact that he was questioned for three hours

….”); Miller, 796 F.2d at 606 (an interrogation lasting less than an hour “was not

‘a process of interrogation … so prolonged and unremitting, especially when

accompanied by deprivation of refreshment, rest or relief, as to accomplish

extortion of an involuntary confession’”) (quoting Stein v. New York, 346 U.S. 156,

184 (1953)). Including interruptions from his phone, the detective’s comments
                                         73

about the “lions” took literally 30 seconds, and he spent more time administering

the Miranda warnings that followed.



      Second, S.W.’s behavior and demeanor strongly support the trial court’s

finding. Even though S.W. was only 15 years old, he maintained a steady and

calm demeanor when he waived his Miranda rights and answered the detective’s

questions about what happened that afternoon. Nothing in S.W.’s words or body

language indicates that he was intimidated or frightened or confused by Detective

Howland’s statement about the lions or that it affected his decision to answer the

questions about the incident at the gas station. See Beasley, 512 A.2d at 1016

(“appellant’s own behavior during the interrogation indicates that the officers’

statements were not sufficient to coerce a … confession.”).5




      5
         The majority opinion states that “there is some confusion as to how long
appellant had been in custody” when his brief interview began, and that this factor
“appears to weigh in favor of an involuntary waiver.” The other dissenting opinion
attributes significance to the gap between S.W.’s arrest (which was shortly after
the carjacking) and the interview. S.W. did not make this argument, even though
he is represented by highly competent counsel. S.W. states in his brief that the
interview began at 11:54 “a.m.” shortly after he was arrested, and this indicates to
me that Detective Howland simply misspoke when he said “p.m.” instead of “a.m.”
when he began the interview. In any event, if we are concerned about an issue that
was not briefed here or raised in the trial court, we should ask the parties to brief
the issue or remand the case to the trial court for further evidence or at least
additional findings. For example, although the other dissenting opinion asserts that
S.W.’s “exhaustion is evident in the video,” exhaustion is not evident to me.
                                         74

      In these circumstances, the trial court reasonably found that S.W. wanted to

talk about the carjacking incident. The trial court did not make a factual finding

about the specific reason why S.W. decided to admit his involvement in the

carjacking, but many people who understand that their statements can be used

against them nevertheless confess without any coercion. Cf. Dorsey, 60 A.3d at

1205 (where the trial court found that Mr. Dorsey confessed because he was

remorseful); Miller, 796 F.2d at 613 (“Many criminals experience an urge during

interrogation to own up to their crimes ….”).6 As the trial court also found, S.W.

picked and chose the questions he wanted to answer, and he had no difficulty

deciding not to answer certain questions – an approach inconsistent with any

supposition that his will was overborne because the interrogator convinced him

that his situation was hopeless. I would add that S.W. did not testify or present any

direct evidence that he felt intimidated or coerced by anything Detective Howland

said or did or that he understood the detective to be telling him that the detective

would throw him to the lions unless he talked to him without a lawyer. 7




      6
         Cf. Towles v. United States, 115 A.3d 1222, 1229 (D.C. 2015) (many
people voluntarily consent to searches by the police even though they know that
the searches will reveal contraband).
      7
        The government could not have used S.W.’s testimony at the suppression
hearing against him in its case-in-chief at trial. See Simmons v. United States, 390
U.S. 377, 394 (1968).
                                         75

      Third, “no special factors indicated that [S.W.] was unable to understand the

nature of his actions.” See Fare, 442 U.S. at 726 (upholding the voluntariness of a

confession of a 16-year-old suspect). “There is no indication that [S.W.] was of

insufficient intelligence to understand the rights he was waiving, or what the

consequences of that waiver would be.” See id. As the majority opinion agrees,

the trial court noted the absence of mental health concerns. The trial court did not

rely on information that S.W. had been in custody before, because there were no

real specifics about his prior contacts with the criminal justice system, including

prior Miranda warnings. See Fare, 442 U.S. at 726 (discussing the significance of

prior experience with the police).



      On this record, the trial court reasonably concluded that S.W. confessed

because he made a voluntary decision to waive the rights that he understood he

had, and the “special caution” with which we must consider confessions by

juveniles (see In re D.A.S., 391 A.2d at 258) does not compel the conclusion that

S.W.’s confession was coerced. In the circumstances of this case, the trial court’s

finding concerning the subsidiary factual question (was S.W.’s will overborne?) is

dispositive of the ultimate legal question of voluntariness, which itself has a fact-

bound nature. See Teva Pharmaceuticals, 135 S. Ct. at 841-42; Turner, 116 A.3d

at 915. The deferential nature of the review in these circumstances helps to explain
                                         76

why we have affirmed in close cases where the trial court found a confession to be

voluntary. See, e.g., Dorsey, 60 A.3d at 1203; Beasley, 512 A.2d at 1016.



      I do not suggest that the majority’s view of the evidence is unreasonable. If

the trial court had drawn the same inferences from the historical facts that the

majority opinion draws and weighed the factors relevant to voluntariness in the

same way the majority opinion does, and if the government had then appealed a

finding that S.W.’s confession was not voluntary, I would affirm the ruling under

the deferential standard of review. However, Dorsey is only one in a long line of

cases that precludes us from usurping the trial court’s role, and it requires us to

affirm if the trial court’s weighing of the evidence is permissible, even if we would

weigh the evidence differently if we were the factfinders. I consider the trial

court’s weighing of the evidence as a whole to be eminently reasonable: S.W.’s

age and Detective Howland’s preface may have created a risk that S.W. would feel

pressured to waive his rights; but the risk did not in fact materialize because the

detective’s comment preceding the Miranda warnings was not threatening or

coercive, his tone was avuncular, S.W. was composed and relatively mature for his

age, and S.W. unhesitatingly decided to confess in a brief interview in which he

chose not to answer numerous other questions.
                                         77

   C. A middle-of-the-road ruling



      For the reasons explained in the preceding sections, the trial court’s finding

on this record that S.W.’s statement was voluntary is fully consistent with

precedent and “with a system that presumes innocence and assures that a

conviction will not be secured by inquisitorial means.” See Miller, 474 U.S. at

116. As I discussed in Part I, it is only when interrogation tactics are “revolting to

the sense of justice” or “offensive to a civilized system of justice” that appellate

courts must reject the trial court’s finding of voluntariness.       See id. at 109

(quotation and citation omitted).    Detective Howland’s approach did not come

close to violating that standard. The majority opinion does not demonstrate that

Detective Howland’s statements were different in kind or even degree from the

statements by interrogators about the benefits of cooperation that courts have

consistently held do not preclude a finding of voluntariness.



      Because the trial court’s voluntariness finding is in the mainstream,

overturning it would not serve, and would in fact undermine, the purposes of

independent appellate review of the ultimate legal determination. See Section I

above. First, reversing the trial court’s ruling would produce a result inconsistent

with the results in cases with comparable facts. Second, it would leave law
                                         78

enforcement officers with a more poorly defined and indeed newly conflicting set

of rules about how to conduct interrogations. Third, we can “maintain control of

… the legal principles” without reversing the trial court here. See Ornelas, 517

U.S. at 697.



      The majority opinion compares this case to Collazo, but the totality of the

circumstances there stand in sharp contrast to the totality of the circumstances

concerning S.W. In Collazo, the police conduct was egregious by any standard,

and the Ninth Circuit emphasized circumstances that are simply not present here.

One critical difference is that that Mr. Collazo confessed after he invoked his right

to counsel and a police officer then made coercive statements in order to induce

Mr. Collazo to change his mind. Instead of respecting Mr. Collazo’s request to

talk to a lawyer, one of two officers (Officer Destro) told him, “This is your last

chance to talk to us” and “it might be worse for you” if he followed his lawyer’s

advice not to talk to the police. 940 F.2d at 414. The Ninth Circuit concluded that

Officer Destro’s words, “understood plainly, were coercive,” and his “warning that

it ‘might be worse’ for Collazo if he did not cooperate with the police can only be

seen as menacing” and as attempting “to impose a penalty on” Collazo’s

invocation of his constitutional rights. Id. at 414, 417. That conclusion was

supported by the prosecutor’s own characterization of “Officer Destro’s tone and
                                          79

presentation as ‘insistent.’” 940 F.2d at 416. The Ninth Circuit also pointed to

credible testimony from the defendant: “Collazo testified he was scared, and that

Officer Destro’s threats are what caused him to change his mind and talk without

counsel.” Id. at 421. The Ninth Circuit stressed (as we did in Dorsey, 60 A.3d at

1200-01) that “[a]t a point where the law required him to back off, [the

interrogator] did not scrupulously honor Collazo’s right to cut off questioning; he

stepped on it.” Id. at 417.



      Here, in contrast, S.W. did not ask to speak with a lawyer and instead

knowingly and unhesitatingly waived his right to do so after Detective Howland

gave Miranda warnings. Nor did Detective Howland “demean[] the pre-trial role

of counsel … by dispensing a one-sided, unauthorized legal opinion.” Collazo,

940 F.2d at 418. In addition, S.W. did not testify, as Mr. Collazo did, that he was

scared and that the interrogator’s statement was the reason he decided to waive his

rights and confess.8


      8
         I do not agree with the majority that Di Giovanni v. United States, 810
A.2d 887 (D.C. 2002), and Lee v. State, 12 A.3d 1238, 1250-51 (Md. 2011), are
“contra” to the trial court’s conclusion.          Di Giovanni concluded that the
defendant’s waiver was not knowing and intelligent because he “was initially
misinformed and confused as to what [his constitutional rights were.” 810 A.2d at
892. The interrogator “went beyond telling appellant that he couldn’t have a
lawyer during the interview, but basically told him he ‘didn’t think he would need
one’” and that ‘it would be best if [he] told [his] side of the story,’” and additional
facts supporting our conclusion that Di Giovanni’s waiver was not knowing or
                                         80

      On the other hand, this is no more difficult a case than the two cases that we

considered close and in which we still upheld the trial court’s finding that the

confessions were voluntary. Dorsey is much closer to the line, and Beasley is no

further from the line – even taking into account that the suspects in these two cases

were adults, not juveniles like S.W.



      Look at the facts in Dorsey:

    “Dorsey endured a grueling overnight interrogation during which, as the

      government concedes, detectives violated the rules of Miranda v. Arizona

      and Edwards v. Arizona by continuing to press him to confess after he

      invoked his Fifth Amendment rights − both his right to cut off further

      questioning and remain silent, and his right to have counsel present during

      his questioning.” Dorsey, 60 A.3d at 1176-77

    The detectives expressly told Mr. Dorsey that the prosecutors “are going to

      up the charges unless you tell the truth.” Id. at 1186

    In the five-and-one-half hours after the defendant asserted his Fifth

      Amendment right to counsel, three officers “persisted in trying a variety of


intelligent were “the officers’ awareness of Di Giovanni’s low intellectual
capacity, Di Giovanni’s physical condition, [and] his unfamiliarity with the
Miranda warnings.” Id. at 894. In Lee, the detective’s statement that “this is
between you and me, bud” violated Miranda by “undermining the warning” that
the defendant’s statements could be used against him. 12 A.3d at 1250-51.
                                      81

   techniques to persuade Dorsey to give in and confess.” Among other things,

   “[t]hey deprived him of needed sleep, ignored his evident physical

   discomfort and symptoms of alcohol withdrawal, and emphasized his

   powerlessness until they ‘finish[ed] up what [they] ha[d] to do;’” and “[t]hey

   disparaged Dorsey’s desire to talk to a lawyer and to go to court, implying

   that counsel would give him bad advice and that he could not receive a fair

   trial.” Id. at 1197.

 The detectives “took no curative measures at all to counter the impact of the

   improper badgering Dorsey had endured.” Id. at 1198.

 “The [detectives’] violations of Miranda were flagrant: Ross and Thompson

   persisted in questioning Dorsey and urging him to change his mind despite

   his repeated assertions of his constitutional rights; verbally abused him (e.g.,

   by repeatedly calling him a liar); disparaged his request for counsel and a

   hearing in court as contrary to his best interests; misrepresented to him the

   benefits of confessing before consulting with counsel (e.g., telling Dorsey

   that he could plead to ‘a straight robbery’ so that ‘all that other shit don’t

   come in’); threatened that the prosecutors would ‘up the charges’ if he did

   not confess; exaggerated the strength of the evidence against him; and fed

   him what he should say to put himself in a more appealing light.” Id. at

   1200-01.
                                        82

    “It was as if the detectives had told him explicitly that his Miranda rights

      were inoperative on this occasion.” Id. at 1202.

It was on these facts that “[w]e consider[ed] the question of voluntariness on the

present record to be exceedingly close” and concluded that “such overreaching

tactics must be condemned.” Id. at 1203-04. We deemed it “particularly troubling

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.” Id. at 1204. Yet we upheld the voluntariness of the confession that Mr.

Dorsey made after he had gotten some sleep and some food and decided that he

was remorseful about his actions. Id. at 1205-1206.



      However critical one may be of Detective Howland’s statements to S.W.,

they did not begin to approach the blatant overreaching in Dorsey, and virtually all

of the other relevant factors indicate that S.W.’s confession was voluntary. Among

other things, Detective Howland did not ignore any invocation of rights, and his

comment that he stood between S.W. and the “lions” was immediately followed by

explicit and effective Miranda warnings.
                                         83

      In Beasley, we upheld the trial court’s voluntariness finding and rejected Mr.

Beasley’s argument that the interrogators’ promises of leniency and their

deceptions about the strength of the government’s evidence constituted

psychological coercion.    After Mr. Beasley waived his rights and denied any

knowledge of the alleged crime, the interrogating officers “told appellant that he

should ‘help himself’ and ‘tell the truth’” and that “any cooperation would be

communicated to the prosecutor,” and they “repeated a number of misleading

statements to appellant concerning the strength of the evidence against him.” 512

A.2d at 1016. The defendant decided to confess only after he met with a detective

whom he knew and trusted and who told him to “tell the truth” about the homicide.

Id. at 1010, 1016. “We th[ought] it is beyond dispute that these remarks were

intended to cause appellant to believe that he might as well confess because the

weight of the evidence against him was overwhelming,” and we could not “say

with certainty that such statements had no effect whatsoever on appellant’s state of

mind.” Id. at 1016. But even though we did not condone the police tactics that

made it a “close case,” we concluded “that appellant’s own behavior during the

interrogation indicates that the officers’ statements were not sufficient to coerce a

false confession.” Id.
                                        84

      By the same token, even if Detective Howland’s suggestion that S.W. should

help himself by talking had some effect on S.W.’s state of mind, S.W.’s behavior

during the interview, and the other relevant factors, indicate that the suggestion

was not sufficient to coerce a false confession. There is no evidence that Detective

Howland’s statement about the “lions” was inaccurate or misleading.             The

detectives in Beasley made statements to overcome Mr. Beasley’s initial refusal to

confess, and Detective Howland did not have the history with S.W. that the

detective who finally persuaded Mr. Beasley to talk had with Mr. Beasley.



      For all of these reasons, I would uphold the trial court’s denial of S.W.’s

motion to suppress his confession.
