                               District of Columbia
                                Court of Appeals
No. 13-CF-1283

DAVID T. ROBINSON,                                                   JUL 14 2016
                                          Appellant,

      v.
                                                CF2-20421-12

UNITED STATES,
                                          Appellee.


             On Appeal from the Superior Court of the District of Columbia
                                  Criminal Division

       BEFORE: FISHER and BLACKBURNE-RIGSBY, Associate Judges; and PRYOR,
Senior Judge.

                                    JUDGMENT

               This case came to be heard on the transcript of record and the briefs filed,
and was argued by counsel. On consideration whereof, and as set forth in the opinion
filed this date, it is now hereby

             ORDERED and ADJUDGED that the case is remanded to the trial court
with instructions to allow appellant to withdraw his pleas, if he elects to do so.

                                          For the Court:




Dated: July 14, 2016.

Opinion by Associate Judge John Fisher.
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. 13-CF-1283                       7/14/16

                        DAVID T. ROBINSON, APPELLANT,

                                       V.

                           UNITED STATES, APPELLEE.

                         Appeal from the Superior Court
                          of the District of Columbia
                                (CF2-20421-12)

                       (Hon. Stuart G. Nash, Trial Judge)

(Argued February 2, 2016                                    Decided July 14, 2016)

     Daniel S. Harawa, Public Defender Service, with whom James Klein and
Samia Fam, Public Defender Service, were on the brief, for appellant.

       Peter S. Smith, Assistant United States Attorney, with whom Vincent H.
Cohen, Jr., Acting United States Attorney at the time the brief was filed, and
Elizabeth Trosman, Suzanne Grealy Curt, and Erik Kenerson, Assistant United
States Attorneys, were on the brief, for appellee.

      Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and PRYOR,
Senior Judge.

      FISHER, Associate Judge: After entering conditional pleas of guilty to three

charges involving illegal possession of a pistol and ammunition, appellant David

Robinson now appeals the trial court‟s ruling denying his motion to suppress
                                         2

statements. Robinson argues that the statement he made on May 11-12, 2012,

should have been suppressed because he did not validly waive his Miranda rights,

see Miranda v. Arizona, 384 U.S. 436 (1966), and that the statement he made on

November 27, 2012, should be suppressed because he was subjected to custodial

interrogation without being given Miranda warnings. We agree that the May

statement should be suppressed, but decline to suppress the November statement.



                                   I.    Background



      On January 3, 2012, Howard Sampler was shot and killed in the District of

Columbia. On May 11 of that year appellant David Robinson was arrested for a

violation of probation and taken to the First District police station. Upon learning

of Robinson‟s arrest, Homicide Detective Anthony Patterson, a thirty-eight-year

veteran of the Metropolitan Police Department, went to the First District

interrogation room where Robinson was detained and “told him that I was

investigating the murder of Howard Sampler and I believed that he had some

involvement.” Detective Patterson also told Robinson that “it might help him if he

were to talk,” but that Patterson would first “have to advise [Robinson] of his

rights.” When Robinson indicated he would like to talk, Detective Patterson took
                                        3

him to an interrogation room on the Homicide Branch side of the building for a

taped interview.



         Before they entered the Homicide Branch interrogation room, Detective

Patterson “may have” shown Robinson a quote on “a printout” of a Facebook page

that seemed to indicate Robinson was guilty. Robinson told Detective Patterson

that he shot in self-defense.



         Once they were in the interrogation room, Detective Patterson read

Robinson his Miranda rights from a PD-47 advice of rights form and then added,

“[n]ow, we don‟t provide you a lawyer here.” Robinson interjected “Yeah,” and

Patterson continued: “But if . . . we ask you something and you don‟t want to talk

about it you can say look, I don‟t have anything to say about that. Okay?”

Detective Patterson next read Robinson the first three questions on the PD-47.

Robinson answered “yes” to each question, both orally and by putting a checkmark

next to the corresponding “yes” on the form.       Patterson deliberately omitted

reading the fourth question, and Robinson did not respond to that question on the

form.1


         1
        The questions on the PD-47 are: “(1) Have you read or had read to you
the warning as to your rights? (2) Do you understand these rights? (3) Do you
                                                                  (continued…)
                                         4

      According to the government‟s proffer of facts supporting the guilty pleas,

Robinson admitted to carrying a .40 caliber pistol “from one location in the

Kenilworth neighborhood of Washington, D.C., to the 1500 block of 45 th Street

NE, Washington, D.C.” and, after an altercation with Howard Sampler at that

location, to firing the pistol “multiple times.” Robinson claimed that he acted in

self-defense.



      From the time he spoke to Detective Patterson in May until late November,

Robinson remained incarcerated for violating his probation. On November 27,

2012, a “couple days” after Robinson had been released, Detective Patterson both

called Robinson and went to his mother‟s house (where Robinson was baby-sitting

his two-year-old daughter) to tell him that they needed to speak. When Robinson

did not come to the police station, Detective Patterson contacted Robinson and also

called Sheila Cacho (the mother of Robinson‟s daughter). 2

___________________
(…continued)
wish to answer any questions? (4) Are you willing to answer any questions
without having an attorney present?”
      2
        Cacho testified that Detective Patterson left her a voicemail stating that if
she did not pick up her two-year old daughter, Ryan Cacho, from Robinson‟s
mother‟s house, the police would take Ryan to Child Protective Services.
Detective Patterson did not recall telling Cacho “that [he] would take her daughter
to Protective Services.” Instead, Detective Patterson stated that the first time he
called Cacho, he “asked her where Mr. Robinson was” and the second time he
                                                                      (continued…)
                                         5

      When Detective Patterson found out that Robinson was no longer baby-

sitting, he returned to Robinson‟s mother‟s house with two other officers.

Robinson‟s mother cracked open the door and informed the officers that Robinson

was not there. Insisting that Robinson was in the house, the officers pushed their

way inside and, without invitation or warrant, searched for Robinson.3 Extremely

upset, Robinson‟s mother called him and told him that “[h]e needs to go down

there and take care of it and don‟t come back to my house until it‟s done.”



      Robinson soon reported to the police station.        Detective Patterson led

Robinson through several “locked”4 doors to an interrogation room for a second

___________________
(…continued)
contacted her to ask “if she had picked up her daughter.” The trial court found that
Detective Patterson had “called the mother of the daughter that Mr. Robinson was
looking after” and “[l]earned that . . . Ms. Cacho now had custody of the
daughter.”
      3
          Detective Patterson testified that Robinson‟s mother gave the officers
permission to search the house once they were inside. Robinson‟s mother testified
that she did not give the officers permission to be in the house. The trial court
acknowledged this dispute, but stated, “one way or the other he was in the house
without a warrant.” Although the court wondered aloud whether “there [should] be
some sanction levied against the government for flouting the Fourth Amendment in
that fashion,” appellant did not make, and thus the trial court did not consider, an
argument that Robinson‟s confession should be suppressed as a “fruit” of an illegal
search.

      Similarly, Robinson did not argue that the “cat out of the bag” doctrine
should be employed to suppress his November statement as a “fruit” of the May
                                                                 (continued…)
                                          6

taped interview.      At the end of that interview, Detective Patterson arrested

Robinson.



      On April 22, 2013, Robinson entered conditional pleas of guilty to carrying

a pistol without a license, D.C. Code § 22-4504 (a); possession of an unregistered

firearm, D.C. Code § 7-2502.01 (a); and unlawful possession of ammunition,

D.C. Code § 7-2506.01 (3). In return, the government agreed not to introduce any

part of the plea “in any future proceeding that may arise out of the circumstances

of the death of Howard Sampler.” Robinson also reserved the right to appeal the

trial court‟s denial of his motion to suppress, see Super. Ct. Crim. R. 11 (a)(2).



                                II.    The May Interview




___________________
(…continued)
confession. Accordingly, any such argument is waived. See Tuckson v. United
States, 77 A.3d 357, 366 (D.C. 2013) (citation omitted) (“It is a basic principle of
appellate jurisdiction that points not urged on appeal are deemed to be waived.”).

      4
         Detective Patterson explained that he had to swipe his ID badge to get
through “several doors” leading to “the hallway where the interrogation rooms are”
and then had to put in a “code” to enter the interrogation room itself. Detective
Patterson also testified that Robinson would not have been able, without assistance,
to open “any of those doors” in order to leave on November 27.
                                          7

      Appellant first contends that the trial court erred in declining to suppress the

statement he gave in May because he was not properly advised of, and did not

completely waive, his Miranda rights. 5       We review the trial court‟s “legal

conclusions concerning the validity of a Miranda waiver de novo.” In re M.A., 33

A.3d 378, 381 (D.C. 2011).



      “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.” In re S.W.,

124 A.3d 89, 95 (D.C. 2015) (citation omitted). “After receiving this warning, a

suspect may opt to waive his or her rights.” Id. (citation omitted). The accepted

practice is for the police to seek “an express written or oral statement of waiver,”

which “is usually strong proof of the validity of that waiver.” North Carolina v.

Butler, 441 U.S. 369, 373 (2007). Even so, “an explicit statement . . . is not


      5
         Robinson also argues that the May 11-12, 2012, questioning violated the
holding of Missouri v. Seibert, 542 U.S. 600 (2004) (disapproving strategy of
questioning first, warning later, and then asking suspect to repeat his prewarning
statements). Assuming for the sake of argument that appellant preserved the
Seibert issue, we conclude that the prewarning interaction between Detective
Patterson and Robinson was not so “systematic, exhaustive, and managed with
psychological skill” that there “was little, if anything, of incriminating potential
left unsaid.” Id. at 616 (plurality opinion). Nor was it “used in a calculated way to
undermine the Miranda warning.” Id. at 622 (Kennedy, J., concurring in the
judgment).
                                         8

invariably necessary to support a finding that the defendant waived the right to

remain silent or the right to counsel.” Id. at 375-76. Waiver may be implied

through a defendant‟s uncoerced statement “coupled with an understanding of his

rights and a course of conduct” contrary to those rights. Berghuis v. Thompkins,

560 U.S. 370, 384 (2010) (citation omitted).



       “As in every waiver case, the government has the burden of showing an

intentional relinquishment or abandonment of the right.” Ruffin v. United States,

524 A.2d 685, 700 (D.C. 1987) (quoting Brewer v. Williams, 430 U.S. 387, 404

(1977)).



      The government argues that Detective Patterson properly advised Robinson

of his Miranda rights and that Robinson validly waived them. We agree that

Detective Patterson read Robinson the Miranda warnings completely and

accurately, and we reject appellant‟s argument that Detective Patterson‟s

“embellishment” to Miranda (telling Robinson that “we don‟t provide you a

lawyer here”) intentionally “obfuscated” the standard Miranda warnings and left

Robinson “uncomprehending of and inattentive to the Miranda right to counsel.”6


      6
         As far as the record reveals, any prewarning interactions between
Detective Patterson and Robinson did not “obfuscate” the Miranda warnings.
                                                              (continued…)
                                           9

As the trial court found, this additional statement was not “an impermissible

embellishment of the Miranda rights.” See Duckworth v. Eagan, 492 U.S. 195,

203-05 (1989) (informing suspect that a lawyer would be appointed “if and when

you go to court” did not render Miranda warnings inadequate). Appellant was

therefore properly advised of his Miranda rights.




___________________
(…continued)
Detective Patterson‟s prewarning actions were similar to those in Hairston v
United States, 905 A.2d 765, 770-81 (D.C. 2006) (detective advised suspect he was
under arrest for murder, expressed interest in suspect‟s “side of the story,” shared
with the suspect “some of the facts in the case that [he] was aware of,” and played
part of another suspect‟s video statement) and In re S.W., 124 A.3d at 109
(detective told suspect, “I stand between you and the lions out there . . . they‟re
gonna try and say you did it all . . . in order for us to have a conversation, I have to
read you your rights.”). Moreover, Robinson‟s un-coerced, “self-defense”
comment was analogous to the voluntary “incriminating statement” made in
Oregon v. Elstad, 470 U.S. 298, 300-18 (1985) (suspect made inculpatory remark,
“Yes, I was there,” in response to “unwarned yet uncoercive [police] questioning”
about a neighborhood burglary after the police officer told suspect he thought he
was involved).

      The detectives‟ actions in Hairston and In re S.W. did not render ineffective
the subsequent Miranda warnings, and the suspect‟s voluntary statements in Elstad
did not taint his subsequent voluntary and informed waiver. Detective Patterson‟s
prewarning interactions with Robinson and Robinson‟s unwarned admission are
likewise not proper grounds for suppression.
                                         10

      Moreover, Detective Patterson reread to Robinson the standard advice about

his right to remain silent,7 Robinson acknowledged that he understood (“Yeah, I

understand”), checked “yes” next to the second PD-47 question (“Do you

understand these rights?”), and signed the bottom of the PD-47 form (below all

four questions) where it says “Signature of defendant.” These actions persuasively

demonstrate Robinson‟s “awareness of the right to remain silent and a decision to

forego that right.” 8 (Steven) Robinson v. United States, 928 A.2d 717, 725 (D.C.

2007) (emphasis added).      By contrast, Robinson did not expressly waive his

distinct right to have a lawyer present during questioning.




      7
           After Detective Patterson asked Robinson if he understood his rights,
Robinson requested, “Could you read the second one for me again?” Detective
Patterson complied: “The second one says you have the right to remain silent.
You‟re not required to say anything to us at any time or to answer any questions.
Anything you say can be used against you in court.” Robinson responded, “Yeah,
I understand.” Robinson did not ask that any of the other rights be read again or
clarified.
      8
         There was no evidence that Robinson was “threatened, tricked, or cajoled
into a waiver,” and it is clear from the interrogation video that Robinson was
willing to freely talk to law enforcement. In re S.W., 124 A.3d at 101 (citation
omitted). As we said in Collins v. United States, the video “footage allows us to
visualize the events . . . in a way that would not be possible based on witness
testimony alone,” but that does not make us “finders of fact, nor . . . change our
standard of review.” 73 A.3d 974, 981 n.4 (D.C. 2013). The video does, however,
corroborate the trial court‟s finding that “the statement provided by Mr. Robinson
was voluntary.”
                                         11

      Robinson never stated or checked “yes” after the fourth PD-47 question

(“Are you willing to answer any questions without having an attorney present?”)

because Detective Patterson deliberately refrained from asking him the question.

This omission is not necessarily fatal, and there is no per se rule precluding the

government from proving a suspect‟s abandonment of his Miranda rights through a

combination of express and implied waivers.9 However, we repeat the caveat that

“if [waiver] forms are to be utilized[,] it would be the better practice to have them

completed before questioning a suspect,” In re M.D.J., 346 A.2d 733, 735 (D.C.

1975) (emphasis added). When conducting our de novo review, this court is

entitled to be skeptical in a case like this, where an officer deliberately pursues

some express waivers but purposefully fails to complete the PD-47, relegating the

government to arguing that there was an implied waiver of a key right.




      9
         In North Carolina v. Butler, for example, the suspect expressly waived his
right to silence when he stated, “I will talk to you but I am not signing any form.”
441 U.S. at 371. Because the suspect did not sign the “Advice of Rights Form,”
the key remaining question was whether, through his actions, he had also implicitly
waived the right to the presence of a lawyer. Id. at 374. The Supreme Court
remanded that question to the North Carolina Supreme Court, acknowledging that
“there is no reason in a case such as this for a per se rule . . . that no implicit
waiver can ever suffice.” Id. at 369. Thus, while the Supreme Court made clear
that the government might be able to prove waiver of Miranda rights through a
combination of express and implied waivers, it did not determine whether
Mr. Butler had in fact validly waived his right to presence of counsel and, in turn,
whether the statements were admissible. Id. at 376.
                                         12

      That skepticism is enhanced in the instant case, where Detective Patterson

apparently did not appreciate the distinction between PD-47 question three (“Do

you wish to answer any questions?”) and question four (“Are you willing to answer

any questions without having an attorney present?”). There is, however, a clear

difference. A defendant could logically say “yes” to questions one through three

but “no” to question four, and this in fact has happened. See, e.g., (Tony) Thomas

v. United States, 731 A.2d 415, 419 (D.C. 1999); Smith v. United States, 529 A.2d

312, 314 (D.C. 1987) (police officers “surprised” when suspect answered “no” to

the fourth question although he had previously seemed eager to speak and had

checked “yes” in response to the third question).



      Detective Patterson‟s justification for skipping the fourth PD-47 question

was that, “I‟d already told [Robinson] that he was not going to have a lawyer

present during questioning. Once he agreed to talk to me I didn‟t see any point in

asking him if he wanted to talk to me without a lawyer present.” This reasoning

overlooks one of the fundamental “points” of Miranda – that Robinson, although

willing to answer questions, had a right to have an attorney present while doing so.



      Detective Patterson‟s previous comment to Robinson that he would not be

provided with a lawyer at the police station does not change the analysis. Of
                                         13

course, a suspect‟s willingness to answer questions at that time and place despite

being told that a lawyer would not be present during questioning might seem to

indicate, as a matter of strict logic, that the suspect was willing to talk without a

lawyer. Still, simply to assume that, because Robinson said he wished to answer

questions, he also was willing to answer questions without an attorney present,

subverts Miranda‟s holding that these are distinct rights.



      Detective Patterson‟s failure to appreciate this distinction produces the

obvious concern that Robinson did not intentionally abandon his right to have

counsel present during questioning.        That concern easily could have been

addressed by asking the next question on the list and obtaining a direct response.

Although Berghuis recognizes that a defendant can validly and impliedly waive his

right to have counsel present, 560 U.S. at 384, we reject the argument that

Robinson did so here, an assertion based solely on his explicit answers to the first

three PD-47 questions.     Because the government did not carry its burden of

proving that Robinson “intentionally relinquished . . . [his] „known right‟” to have

counsel present during questioning, Robinson‟s May statement should be

suppressed. Di Giovanni v. United States, 810 A.2d 887, 892 (D.C. 2002) (citation

omitted).
                                         14

                             III.   The November Interview



      Appellant argues next that the trial court should have suppressed his

November statement because he was subjected to custodial interrogation without

being read his Miranda rights.       “We review de novo the trial court‟s legal

conclusions as to whether the defendant was in custody and whether the facts

established a Miranda violation.” Resper v. United States, 793 A.2d 450, 456

(D.C. 2002) (citation omitted). “If the defendant is not in custody[,] then [Miranda

and its progeny] do not apply.” In re A.J., 63 A.3d 562, 566 (D.C. 2013) (citation

omitted).



      When analyzing a Miranda issue, the term “custody” properly applies “only

[to] those cases in which there has been a „formal arrest or restraint on freedom of

movement of the degree associated with a formal arrest.‟” In re A.J., 63 A.3d at

566 (citation omitted).    Stated another way, “where the overall tenor of the

situation would cause a reasonable person to believe he or she is under arrest . . . .

[or w]hen an encounter becomes dominated by police authority, . . . the Fifth

Amendment may require” officers to advise suspects of their constitutional rights.

In re I.J., 906 A.2d 249, 260 (D.C. 2006). Judicial review of a police-citizen

encounter should focus both on what police do and “also what they say” because
                                         15

“[c]ommunications from the police to the suspect . . . may assuage the reasonable

person‟s assessment of the situation.” Id.



      Despite the persistence of the police in urging Robinson to come to the

station for another interview, he was not in custody. Robinson‟s friend Britney

drove him to the station and, once he was there, his movement was not restrained

to the degree associated with a formal arrest. He was not physically restrained and

the door to the interview room initially was propped open. Although the door was

closed as the interview began (and several locked doors stood between Robinson

and the outside world), these same conditions “apply to any witness who comes

back to one of those interview rooms.”



      The environment was not so highly coercive as to be custodial. Early in the

interview, Detective Patterson told Robinson that “if you want to leave here, if you

decide you don‟t want to answer any of our questions, you can leave.” Revealing

that he understood, Robinson responded, “[L]ike you said, if any time I feel like

I don‟t want to answer, I‟ll just go ahead and tell you.” Detective Patterson further

informed Robinson that “you aren‟t under arrest” and that the interview would take

“[p]robably about an hour.” Detective Patterson then agreed to coordinate with
                                          16

Britney on Robinson‟s behalf, telling her that she could leave if the interview took

longer than an hour.



      Late in the interview Robinson asked if he could leave and stated he did not

want to talk, but he did not attempt to leave, and he admitted that he did not “want

to go out [of] here without everything being understood.” By this point, moreover,

Robinson had already communicated more than enough details to support the gun

and ammunition charges.



      These facts compare favorably to those in Spencer v. United States, 132

A.3d 1163, 1168-69 (D.C. 2016). In Spencer, a suspect was transported to the

police station in the back of a locked police car (which only the officer could

open), frisked prior to entering the car, and never left alone after his arrival at the

station. Id. at 1168. He was escorted by a police officer when he asked to use the

bathroom and smoke a cigarette. Id. Despite these restrictions on the suspect‟s

movement, this court held that he was not in custody for purposes of Miranda

because (1) the police officers told him that he was not under arrest, (2) he was not

handcuffed, and (3) the interactions between the suspect and the officers were

cordial. Id. at 1168-69 (“Lack of physical restraint can create strong indicia of lack

of custody.”) (citing Morales v. United States, 886 A.2d 67, 72 (D.C. 2005)).
                                          17



       We similarly conclude that Robinson was not in custody on November 27,

and the police did not violate Miranda by questioning him without advising him of

his rights.



                                    IV.    Conclusion



       The two interviews of appellant contain duplicative information about his

possession of a firearm and ammunition. Thus, had Robinson been convicted after

a trial, we would consider an argument that admitting evidence of the first

interview was harmless. However, Super. Ct. Crim. R. 11 (a)(2) provides that “[a]

defendant who prevails on appeal shall be allowed to withdraw the plea.” The rule

does not specify what happens when a defendant prevails only in part.



       This court has not squarely addressed that question (and we do not do so

here). However, we have noted the statement of one court that “[i]f any ruling that

forms a basis for the conditional plea is found to be erroneous, we are required to

permit the defendant to withdraw his plea.” (Tony) Thomas, 731 A.2d at 429 &

n.24 (quoting United States v. Mejia, 69 F.3d 309, 317 n.8 (9th Cir. 1995)).

Because the plea agreement in this case did not purport to limit this right, and the
                                             18

parties have not fully briefed the underlying issue, we apply Rule 11 (a)(2) literally

and remand the case to the trial court with instructions to allow Robinson to

withdraw his pleas, if he elects to do so.



                                                  It is so ordered.
