The opinion of the court was delivered by: Hon. Harold Baer, Jr., District Judge
Defendants Antonio Scott ("Scott") and O'Kene White ("White") move to suppress statements that they made to New York City Police Department ("NYPD") Detectives after they were given full Miranda*fn1 warnings. Scott and White also move to sever their trial and to dismiss their indictment for lack of jurisdiction. On September 3, 2008, this Court held a suppression hearing and heard oral argument on Defendants' motions. Separately, White has made several motions seeking the disclosure of various portions of the Grand Jury proceedings. For the reasons set forth below, except for Defendant White's motion to suppress his written statement, Defendants' motions are denied.
Scott and White are each charged in an indictment filed April 23, 2008 with Conspiracy to Commit a Hobbs Act violation, Attempted Hobbs Act violation and Use of a Firearm in Connection with a Crime of Violence, in violation of 18 U.S.C. § 924(c)(1)(A)(ii) & (iii) and 18 U.S.C. § 2. Scott is also charged with being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). On September 2, 2008, a Grand Jury returned a five-count superseding indictment. In addition to the charges in the previous indictment, the superseding indictment charges Scott and White with one count of attempted possession with intent to distribute marijuana, in violation of 21 U.S.C. § 846 and 18 U.S.C. § 2. Additionally, Count Four, which charges both Defendants with violating 18 U.S.C. § 924(c), was amended to refer to both the robbery and narcotics counts.
Scott and White were arrested the night of March 6, 2008 in connection with a home-invasion robbery. Early on March 7, 2008, at the 47th precinct in the Bronx, Scott and White were read their Miranda rights by NYPD Detectives. Defendants move to suppress the Government's use of statements that Defendants subsequently gave to NYPD Detectives. Of the three statements that are at issue here, the Government intends to use only White's written statement on its case in chief. The Government intends to use White's oral statement only to impeach White if he takes the stand and similarly Scott's written statement only for impeachment purposes if he takes the stand at trial.
1. Defendant White's Written Statement-Case in Chief
At the suppression hearing, NYPD Detective Joseph Sikorski testified that he advised White of his Miranda rights at approximately 1:25 a.m. on March 7, 2008. Tr. 12:22-24. He gave White a form that listed his rights, read them to White and asked White if he understood each one. Tr. 11:12-14; see Gov't's Ex. W-1. White responded both orally and by writing "yes" on the form that he understood each right. Tr. 20:2-8, 20:23-24; see Gov't's Ex. W-1. Detective Sikorski further testified that when he read the last question, "[n]ow that I have advised you of your rights, are you willing to answer questions," White orally agreed to answer questions, then "went over briefly orally" and wrote and signed "a statement on his conduct of that day." Tr. 14:19-24; 15:7-10; 29:13-15. However, on the form itself, in response to whether he was willing to answer questions, White wrote "no" and signed his initials. Gov't's Ex. W-1.
White's signed, handwritten statement reads:
On 3-6-08 we enter the apartment at about 8:20 pm all I do was tie the kids up for there safety and kept them inside the kitchen where I was with them for the whole time I was there. The other was inside the room. We got arrested about maybe 8:30 pm -- 8:40 pm. I am not sure what time it was to be exact. It was at 655 East 23 Street first floor.
White argues that his written statement should be suppressed because White had, minutes earlier, written on his Miranda form that he was unwilling to answer questions. The Government argues that White waived his Miranda rights.
Statements made by a defendant during the course of custodial interrogation are inadmissible in the prosecution's case in chief absent the defendant's waiver of the rights specified in Miranda v. Arizona, 384 U.S. 436, 479 (1966). Having been advised of his Miranda rights, a suspect may waive those rights and agree to be interviewed. Any statements made after such a waiver are admissible. The Government must carry its burden of proving, by a preponderance of the evidence, that the waiver was voluntary and that the defendant was aware of his right being waived and the consequences of waiving that right. See Colorado v. Connelly, 479 U.S. 157, 168 (1986); Moran v. Burbine, 475 U.S. 412, 421 (1986); United States v. Jaswal, 47 F.3d 539, 542 (2d Cir. 1995); United States v. Bye, 919 F.2d 6, 8-9 (2d Cir. 1990).
Detective Sikorski's testimony is the only evidence of waiver. He testified that White told him orally that he would answer questions and then gave an oral statement, which the Detective had him write down. See Tr. 15:14-16. Detective Sikorski said that at no time did White orally indicate in any way that he did not wish to answer questions. Tr. 15:17-19. There is no reason to doubt the credibility of Detective Sikorski's testimony. Indeed, when questioned by the Court, Detective Sikorski testified that if it had been clear that White was unwilling to answer questions, he would not have continued to ask White for a statement. Tr. 27:19-25. White did not take the stand during the suppression hearing to explain his side of the story.
Nevertheless, it is troubling that Detective Sikorski failed to read the "no" that White wrote on his Miranda form. Detective Sikorski failed to make sure that White wrote "yes" to indicate that he was willing to answer questions. Instead, the Detective "just looked and [White] put something down. I didn't look at yes or no, I looked at what he wrote down, again upside down, and I was -- again, I didn't get a clear look at it." Tr. 21:2-6. However, Detective Sikorski also testified that "[a]fter I finished reading his rights I got the paper in my hand, I pulled the paper towards me . . . ." Tr. 26:13-16. At this time, he could have read White's written answers clearly but did not do so.
White wrote "no" on the form, to show that he was unwilling to answer questions, virtually at the same time that he was saying "yes" to the Detective. White's written "no" is strong evidence that, if he made any oral communication to the contrary, he was not aware of his right being waived and the consequences of waiving that right. Put another way, writing "no" and saying "yes" do not add up to a knowing waiver of his Miranda rights.
Moreover, this is not a case where a suspect initially indicates that he is unwilling to answer questions and then some time later volunteers a statement. Here, White began writing his statement at 1:30 a.m., only five minutes after the Detective read him his rights. Gov't's Ex. W-2; Tr. 21:7-11. It is hard to believe that White would have changed his mind so quickly.
Therefore, the Government has not proved a waiver by a preponderance of the evidence and may not use White's written statement in its case in chief.
The Government may, however, use White's statement to impeach White's credibility if he takes the stand. For a statement to be admissible for impeachment, the defendant must have given the statement voluntarily and without coercion. Oregon v. Hass, 420 U.S. 714, 722-24 (1975) (hereinafter, Hass); Mincey v. Arizona, 437 U.S. 385, 399-402 (1978); Parsad v. Greiner, 337 F.3d 175, 184 (2d Cir. 2003). The Supreme Court explained in Harris v. New York, 401 U.S. 222, 224 (1971), that "[i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution's case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards." The Court reasoned that "[a]ssuming that the exclusionary rule has a deterrent effect on proscribed police conduct, sufficient deterrence flows when the evidence in question is made unavailable to the prosecution in its case in chief," id. at 225, and that the "shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances." Id. at 226, quoted in Hass, 420 U.S. at 721-22.
Thus, even if a statement is not admissible in the prosecution's case in chief because it was taken in violation of Miranda, the Government may use it to impeach the defendant's credibility should he take the stand at trial, so long as the statement was voluntary and uncoerced. Involuntariness or coercion may be shown by the defendant's characteristics at the time of the statement, the conditions of the interrogation and the conduct of the police.
Here, there is no evidence that White gave his statement involuntarily or that it was the result of coercion. There is no evidence that Detective Sikorski, or anyone else, made any threats or promises to White to induce him to make the statement. See Tr. 21:25-22:5. Detective Sikorski found White's demeanor to be "very calm, just actually very cooperative." Tr. 22:7. In his affidavit, White's assertion that his statements were "not voluntary and the result of illegal police conduct and activity" is merely conclusory. White Aff. ¶¶ 3-4 (July 14, 2008).
White's motion to suppress his written statement from the Government's case in chief is granted, but the Government may use the ...