Millhausen v. United States

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                                  No. 19-CF-47

                       DYLAN C. MILLHAUSEN, APPELLANT,


                           UNITED STATES, APPELLEE.

                       On Appeal from the Superior Court
                          of the District of Columbia

                        (Hon. Ronna L. Beck, Trial Judge)

(Argued November 17, 2020                                   Decided July 8, 2021)

      Matthew B. Kaplan for appellant.

      Matthew Covert, Assistant United States Attorney, with whom Jessie K. Liu,
United States Attorney at the time the brief was filed, and Elizabeth Trosman,
Chrisellen R. Kolb, Ethan Carroll, and Puja Bhatia, Assistant United States
Attorneys, were on the brief, for appellee.

      Before BLACKBURNE-RIGSBY, Chief Judge, and EASTERLY and MCLEESE,
Associate Judges.

      MCLEESE, Associate Judge: Appellant Dylan C. Millhausen was convicted of

assault with significant bodily injury, and his sentence was enhanced on the ground

that he had committed a bias-related crime. Mr. Millhausen argues that (1) the

evidence was insufficient to disprove his claim of self-defense and (2) the trial court

erroneously admitted into evidence statements elicited from Mr. Millhausen in

violation of the requirements of Miranda v. Arizona, 

384 U.S. 436

 (1966). We

conclude that the evidence was sufficient to disprove self-defense, but we agree with

Mr. Millhausen’s Miranda claim.


      In sum, the following evidence was presented at trial. One evening in August

2016, Nicole Vives, Michael Vives, and Mehtab Bakhshi went to a bar. An

argument eventually broke out between Mr. Bakhshi and Mr. Vives. The group left

the bar, and the argument continued outside.

      While Mr. Bakhshi and Mr. Vives were arguing, Mr. Millhausen approached

Ms. Vives. After a brief conversation, Mr. Millhausen invited Ms. Vives to get

pizza. Mr. Millhausen seemed drunk. Ms. Vives told Mr. Millhausen that she was

with Mr. Vives and Mr. Bakhshi, whom she identified as her husband and friend,

respectively. Mr. Millhausen asked if Mr. Bakhshi had been bothering her.

      Mr. Millhausen thereafter approached Mr. Bakhshi from behind, removed Mr.

Bakhshi’s turban, and dropped the turban on the ground. Mr. Bakhshi is a Sikh, and

he wore the turban for religious reasons, to keep his head covered in public. Mr.

Bakhshi turned and threw a punch at Mr. Millhausen, but the punch did not connect.

Mr. Millhausen responded by punching Mr. Bakhshi in the face multiple times. Mr.

Bakhshi fell to the ground, and Mr. Millhausen continued to punch Mr. Bakhshi in

the face. Mr. Bakhshi lost consciousness, and he was unresponsive to police officers

who responded to the scene. Mr. Bakhshi was taken to the hospital, where he was

diagnosed with a head injury, a bruise, and contusions. Mr. Millhausen was not

heard to make any racial or ethnic remarks during the altercation.

      Police officers detained and handcuffed Mr. Millhausen. Several clips from

an officer’s body-worn-camera footage showed Mr. Millhausen making various

statements. Specifically, Mr. Millhausen expressed the view that a lot of people had

been hurt in Germany, France, Italy, and other countries, but “this is the United

States” and that “you bring that shit here, it ain’t gonna end well.” In the presence

of the jury, the trial court took judicial notice of the fact that in 2016 there had been

“significant publicity regarding attacks or plots in France, Italy, and Germany that

some attributed to Islamic extremists.”


      Mr. Millhausen argues that the evidence was insufficient to disprove his claim

of self-defense. We disagree.

      “When assessing the sufficiency of the evidence, we view the evidence in the

light most favorable to the verdict, giving full play to the right of the fact-finder to

determine credibility, weigh the evidence, and draw justifiable inferences of fact.”

Miller v. United States, 

209 A.3d 75

, 77 (D.C. 2019) (brackets and internal quotation

marks omitted). “[W]e will overturn a conviction on insufficient proof grounds only

if there was no evidence adduced at trial upon which a reasonable mind could find

guilt beyond a reasonable doubt.” Augustin v. United States, 

240 A.3d 816

, 823

(D.C. 2020) (internal quotation marks omitted). Where evidence of self-defense is

present, the government bears the burden of disproving self-defense beyond a

reasonable doubt. Rorie v. United States, 

882 A.2d 763

, 776 (D.C. 2005).

      The United States argues that Mr. Millhausen had no right of self-defense

because Mr. Millhausen initiated the altercation by removing Mr. Bakhshi’s turban.

We need not decide that issue. Even if Mr. Millhausen had a right of self-defense

after Mr. Bakhshi attempted to punch Mr. Millhausen, there is “no right to use

excessive force in self-defense.” Hart v. United States, 

863 A.2d 866

, 874 (D.C.

2004). In this case, a reasonable jury could find beyond a reasonable doubt that Mr.

Millhausen used excessive force in responding to a single missed punch by (1)

punching Mr. Bakhshi multiple times in the face, causing Mr. Bakhshi to fall to the

ground; (2) continuing to punch Mr. Bakhshi in the face even after Mr. Bakhshi fell

to the ground; and (3) causing Mr. Bakhshi to lose consciousness. Cf., e.g., 


(“[T]he evidence of the injuries suffered by the complainant—coupled with the fact

that appellant suffered none of consequence—permitted the jury to find that

appellant forfeited [the] right of self-defense by using excessive force.”).


      Mr. Millhausen also argues that his statements in the clips from the

body-worn-camera footage were erroneously admitted in violation of the

requirements of Miranda. We agree.


      Before interrogating a suspect in custody, the police generally must warn the

suspect that “he has a right to remain silent, that any statement he does make may

be used as evidence against him, and that he has a right to the presence of an attorney,

either retained or appointed.” J.D.B. v. North Carolina, 

564 U.S. 261

, 269 (2011)

(internal quotation marks omitted). Statements obtained in violation of Miranda’s

requirements are generally inadmissible. In re I.J., 

906 A.2d 249

, 255 (D.C. 2006).

“In reviewing a trial court’s denial of a motion to suppress on Miranda grounds, we

defer to [the trial court’s] factual findings. . . . However, we review the ultimate

question of law de novo, and whether, on the established facts, appellant was under

custodial interrogation without Miranda warnings is a question of law.” Johnson v.

United States, 

207 A.3d 606

, 611 (D.C. 2019); see also Gilmore v. United States,

742 A.2d 862

, 868 (D.C. 1999) (whether defendant’s statement was product of

custodial interrogation “involves questions of both fact and law”).


      Mr. Millhausen filed a pretrial motion arguing that the statements on the body-

worn-camera footage should be suppressed under Miranda. The trial court held an

evidentiary hearing, and the only evidence admitted at the hearing was

approximately thirty minutes of body-worn-camera footage. That footage reflects

the following.

      At the beginning of the video, Mr. Millhausen was in handcuffs, standing in

the street with two police officers. Mr. Millhausen told the police that he was scared.

The officers had Mr. Millhausen sit down on the sidewalk, and they asked him for

identification. Mr. Millhausen said that he was active-duty military and reiterated

that he was scared. An officer asked Mr. Millhausen what happened, and Mr.

Millhausen responded that he had been attacked. After some further discussion of

Mr. Millhausen’s ID, which was eventually located, the officer again asked “what

happened?” and Mr. Millhausen again said he was attacked by a “guy.” The officer

asked, “[w]hat happened with him here?          That’s what I need to know, what

happened.” Mr. Millhausen responded by indicating that he had been talking with

someone’s girlfriend, that one person had been grabbing at another person’s “head

thing,” and that Mr. Millhausen “ended up grabbing his head thing.”

      The officer then said “[a]lright, go back. So, he attacked you?”             Mr.

Millhausen asked about the status of the other participants and was told that one

person was unconscious. Mr. Millhausen then explained that there was a fight, that

he was trying to separate the parties, that “the dude attacked me,” and that “[w]hen

he tried to attack me, I showed no mercy and I beat the fuck out of him.”

      The officers and Mr. Millhausen then briefly discussed Mr. Millhausen’s

physical condition. During that discussion, Mr. Millhausen said “they try to do that

shit around me, it’s not going to happen.” An officer asked whether the other person

assaulted Mr. Millhausen first, and Mr. Millhausen said yes. The officer asked what

happened after that, and Mr. Millhausen said that he saw a fight, that he did not know

the people involved, that he had tried to intervene to help, and that “when they came

at me, I did my thing.” The officer asked what happened after that, how the other

person ended up on the ground, and how Mr. Millhausen hit the other person. Mr.

Millhausen said that he was not sure where he hit the other person, but that he was

not going to let the other person attack him.

      After some further discussion, the officer asked if Mr. Millhausen was by

himself when “all this happened,” and Mr. Millhausen said yes. The officer told Mr.

Millhausen to “hold on one second while we finish our investigation,” and then

asked if Mr. Millhausen needed medical attention. After declining medical attention,

Mr. Millhausen said “[l]ook, this is the United States, that’s all I’m saying

look. . . . [Y]ou can try that shit in France, know what I mean, you can try that shit

in Italy, look, you bring that shit here, it ain’t gonna end well, you know what I

mean?” The officer responded, “Ok, I understand, hold on one second.”

      Mr. Millhausen and the officer continued their discussion of the incident, and

Mr. Millhausen made a series of comments about other countries and the news:

“[G]o ahead and try that shit, this ain’t Spain motherfucker.             This ain’t

motherfucking France, motherfucker, go ahead.”; “[L]ook when you hear about

some bad shit on the news this one dude did that shit, . . . there’s about a hundred

motherfuckers, there’s about a hundred listening, they’re listening, and they’re

thinking, but not here, not here motherfucker. You ain’t gon do it here motherfucker.

We see you. We see you. It’s not gonna happen.”; and “We have a certain patience

level. . . . [T]his is not France, you know. I don’t want to see a lot of people hurt

like what’s going on in Germany and France and all these other countries.”

      After some further discussion, the officer told Mr. Millhausen that a detective

would be coming by. Mr. Millhausen asked whether he needed to speak to the

detective, and the officer said “Yeah.” The officer further explained that the

detective would ask “the same types of questions me and the other officers was

asking you, what happened, you know, what happened, you’ll tell your side of the

story.” After some further discussion, Mr. Millhausen again said that he was

attacked, then said that “They play that shit over there. They’re not going to play

that shit over here.” After additional discussion, Mr. Millhausen again said “This

ain’t Germany. . . . This ain’t France.”

      Mr. Millhausen returned to a description of the incident, and the officer asked

questions in response. Mr. Millhausen asked if he was going to be let go, and the

officer indicated that she did not know, but that a crime had been committed. An

officer once again asked Mr. Millhausen for his account of what happened. Mr.

Millhausen said that he had seen an altercation, that he intervened, that someone

tried to strike him, that he had reacted harshly, and that he might have thrown the


      Based on that evidence, the trial court granted the motion to suppress in part

and denied it in part. The trial court concluded that Mr. Millhausen was in custody

once he was handcuffed and that Mr. Millhausen had been interrogated in the

absence of Miranda warnings. The trial court therefore suppressed evidence of a

number of Mr. Millhausen’s statements. The trial court concluded, however, that

certain of Mr. Millhausen’s statements were volunteered expressions of his world

view and were neither responsive to specific questions nor part of a discussion about

what happened during the incident. The trial court therefore ruled that the portions

of the body-worn-camera footage containing those specific statements were



      We turn first to whether Mr. Millhausen was in custody. Custody occurs when

a suspect “has been subjected to a formal arrest or restraint on freedom of movement

of the degree associated with formal arrest.” Broom v. United States, 

118 A.3d 207


211-12 (D.C. 2015) (internal quotation marks omitted). “In evaluating whether a

person was in custody for Miranda purposes, the only relevant inquiry is how a

reasonable man or woman in the suspect’s position would have understood [the]

situation.” White v. United States, 

68 A.3d 271

, 276 (D.C. 2013). The court

considers the totality of the circumstances surrounding the encounter, looking at

factors including:

              the use of handcuffs or other physical restraints on the
              suspect; communications from the police to the suspect,
              such as whether the police informed the suspect that the
              suspect was not under arrest and did not need to speak with
              the officers; the length of the detention or questioning; the
              nature of the questioning, such as whether it was
              accusatory or coercive; the location of the encounter, such
              as whether it occurred in public or private; the nature of
              any display of force by the police; and whether the suspect
              was confronted with evidence of guilt.

Broom, 118 A.3d at 212, 216 (citations omitted).

            [D]etention by use of handcuffs, although not strictly
            dispositive on this issue, strongly militates toward a
            finding of Miranda custody. . . . [H]andcuffing does not
            necessarily transform an investigative detention into an
            arrest, but it is recognized as a hallmark of formal
            arrest. . . . [N]either this court nor the Supreme Court has
            ever published an opinion in which it determined that a
            suspect in handcuffs was not in Miranda custody. While
            handcuffing does not end the inquiry, and must be
            considered in context of the totality of the circumstances,
            in order to outweigh the use of handcuffs, there must be
            strong indications on the other side of the ledger that there
            was not Miranda custody.

Morton v. United States, 

125 A.3d 683

, 689 (D.C. 2015) (footnote, citations, and

internal quotation marks omitted).

      Applying these principles, we agree with the trial court that Mr. Millhausen

was in custody when he made the statements at issue. At the time he made the first

disputed statement, Mr. Millhausen had been handcuffed for at least eight minutes.

That “strongly militates” in favor of a conclusion that Mr. Millhausen was in

custody, and we see no “strong indications on the other side of the ledger.” Morton,

125 A.3d at 689. The United States argues that the detention was relatively brief,

the officers did not brandish weapons, and Mr. Millhausen was not told that he was

under arrest but rather was told that the police were investigating. Our decision in

Morton makes clear that those circumstances do not suffice to outweigh the coercive

effect of handcuffing. Morton, 125 A.3d at 689-91 (defendant was in custody at

time of questioning, where police seized defendant on public street after defendant

fled; police handcuffed defendant; police advised defendant he was not under arrest;

police did not brandish weapons; and police promptly questioned defendant); see

also White, 68 A.3d at 279-83 (defendant was in custody during traffic stop, where

defendant was handcuffed; defendant was not told whether he was arrested or not;

police did not brandish weapons; and police questioned defendant immediately).


      It appears to be undisputed that the officers interrogated Mr. Millhausen. See

generally Rhode Island v. Innis, 

446 U.S. 291

, 301 (1980) (defining “interrogation”

as including “any words or actions on the part of the police (other than those

normally attendant to arrest and custody) that the police should know are reasonably

likely to elicit an incriminating response from the suspect”) (footnote omitted). The

United States argues, however, that the trial court nevertheless correctly declined to

suppress the statements at issue, because those statements were not responsive to the

officers’ interrogation and instead were “volunteered” by Mr. Millhausen. We are

not persuaded by this argument.

      We conclude that the statements at issue were responsive to the officers’

interrogation. The officers repeatedly asked Mr. Millhausen what happened. That

is a “very general question.” Long v. United States, 

940 A.2d 87

, 96 (D.C. 2007).

The question would naturally be understood as an invitation for Mr. Millhausen to,

in the words of one of the officers, “tell [his] side of the story.” The United States

appears to suggest, however, that statements reflecting what Mr. Millhausen thought

about what happened were not responsive to questions about what happened. We

disagree. In our view, a general question about what happened during an incident

would naturally elicit answers that included what the participants in the incident

were thinking and why they did what they did.

      Moreover, we disagree with the United States’s argument that Mr.

Millhausen’s statements had no logical nexus to the subject of the interrogation. The

United States’s position, both at trial and on appeal, has been that the statements at

issue were evidence of why Mr. Millhausen assaulted Mr. Bakhshi: i.e., that Mr.

Millhausen was giving bias-related reasons for his assault. It necessarily follows

that Mr. Millhausen’s statements were logically responsive to the officers’ repeated

and successful efforts to get Mr. Millhausen to tell his side of the story.

      Finally, the United States argues that the statements at issue were

spontaneously volunteered, and thus not subject to suppression under Miranda. In

support of that argument, the United States points out that the officers’ conversation

with Mr. Millhausen at times touched on topics not directly related to Mr.

Millhausen’s guilt or innocence, such as Mr. Millhausen’s medical condition, his

military service, and the status of the investigation. The United States also points

out that there were brief interludes of silence (none of much more than a minute)

during the conversation. We do not view those circumstances as supporting a

conclusion that the statements at issue were truly volunteered.          Silence and

rapport-building are both established interrogation techniques. See, e.g., Hill v.

United States, 

858 A.2d 435

, 444 (D.C. 2004) (creation of “verbal vacuum” is

“classic interrogation technique[]”); State v. Juranek, 

844 N.W.2d 791

, 802 (Neb.

2014) (building rapport can “facilitate further interrogation”) (ellipses and internal

quotation marks omitted). Whether or not the officers in this case were consciously

using those techniques, we see no basis for concluding that brief periods of silence

and brief discussion of more benign topics eliminated the coercive effects of the

ongoing Miranda violation. Relatedly, we see no basis for artificially dividing the

single ongoing interrogation in this case into a series of discrete incidents and

treating some of the statements during that interrogation as “volunteered” simply

because they did not immediately follow a specific question.

      In sum, we conclude that the statements at issue in this case were the product

of an ongoing custodial interrogation conducted in violation of the requirements of

Miranda. See, e.g., State v. Martin, 

816 N.W.2d 270

, 283 (Wis. 2012) (rejecting

argument that “an incriminating statement offered by a suspect who has not been

Mirandized during the course of a custodial interrogation is admissible simply

because that particular statement, viewed in complete isolation, appears

‘voluntary’”; “[n]o significant amount time elapsed between” Miranda violation and

supposedly “volunteered” statements, and “in such cases there must be a break

between the two exchanges, evidenced by factors like a lapse in time, change in

personnel, change in location, or change in the content of the questions and

answers”); Johnson v. Kentucky, No. 2003-CA-002745-MR, 

2005 WL 789331

, at

*3 (Ky. Ct. App. Apr. 8, 2005) (“It is true . . . that a Miranda violation does not taint

subsequent statements sufficiently removed from the violation to be deemed . . . a

spontaneous utterance, but here . . . the delay of just a few minutes between the

improper questions and [defendant’s] response did not render the response

spontaneous. The custodial circumstances had not changed, the delay was brief, and

the questions clearly evoked the statement.”).

      The published decisions relied upon by the United States are not to the

contrary. Rather, those decisions involve circumstances quite different from those

of the present case. See, e.g., Jones v. United States, 

779 A.2d 277

, 283-84 (D.C.

2001) (en banc) (police asked suspect for ID or for identifying information, which

did not constitute interrogation under circumstances of that case, and suspect’s

incriminating response lacked “the slightest logical nexus” to question); United

States v. Cole, 

315 F.3d 633

, 635-37 (6th Cir. 2003) (officer asked single question

at scene of arrest and defendant responded; officers transported defendant to police

station and then to jail; at station and while being transported to jail, defendant made

incriminating statements without any questioning by police; court concluded that

later statements were “independent,” “spontaneous,” and “unprovoked by [the]

initial question at the scene of the crime”); Medeiros v. Shimoda, 

889 F.2d 819

, 821,

824-25 (9th Cir. 1989) (first statement obtained in violation of Miranda did not taint

later volunteered statements, where first statement was made on scene in response

to single question by one officer; defendant was taken to station and booked;

defendant volunteered later statements about thirty minutes after on-scene statement,

in absence of questioning by officers; and officers advised defendant not to make

statements but defendant nevertheless continued). The United States does cite

several unpublished trial-court decisions that are somewhat more factually

comparable to the present case. See, e.g., United States v. Daniels, Cr. Action No.


2010 WL 2163844

, at *4 (E.D. Pa. May 27, 2010) (declining to suppress

volunteered statement made approximately two minutes after Miranda violation,

where officer executing search warrant asked single question about whether there

were firearms in house; defendant responded with denial; and when officer found

gun, defendant said gun was his). For the reasons we have stated, however, we do

not find those decisions persuasive support in the circumstances of the present case.

      We therefore conclude that the statements at issue in this case ought to have

been suppressed. We agree with the parties that, given our holding that all of the

statements at issue were erroneously admitted, Mr. Millhausen’s bias-related

enhancement must be vacated but his conviction for assault with significant bodily

injury is unaffected.

      In sum, we affirm Mr. Millhausen’s conviction for assault with significant

bodily injury, vacate the bias-related enhancement, and remand for further


                                                          So Ordered.

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