Brown v. State ( 2021 )

Dru Darren Brown v. State of Maryland, No. 1103, September Term, 2019. Opinion by
Woodward, J.
CRIMINAL LAW – RAPE AND SEXUAL OFFENSES – FORCE OR THREAT OF
FORCE – SUFFICIENCY OF THE EVIDENCE – PERPETRATOR’S CREATION
OF FEAR OF IMMINENT BODILY HARM – VICTIM’S GENUINE AND
REASONABLE FEAR OF SUCH HARM
CRIMINAL LAW – CONFESSIONS – MARYLAND COMMON LAW –
IMPROPER PROMISES AND INDUCEMENTS
In 2017 and 2018, appellant, Dru Darren Brown, sexually assaulted his girlfriend’s
teenage daughter multiple times in their home in Hagerstown, Maryland. Appellant moved
in with the victim, her mother, and her young sister in 2013. Appellant became the father
figure in the home and was responsible for disciplining the victim, who was eleven years
old at the time, usually in the form of spankings or taking away toys. In 2017, however,
when the victim was almost sixteen years old, appellant’s discipline turned to sexual
assaults. In 2018 while appellant and the victim’s family were on vacation in Tennessee,
the victim told her family that appellant had been abusing her. Detectives in Tennessee
interviewed appellant, during which appellant provided incriminating statements.
At trial, the victim described the first sexual assault. Appellant went to the victim’s
bedroom, which was isolated in the attic, to discipline her for having “an attitude.” Instead
of spanking the victim as he had in the past, appellant asked the victim if she wanted a
massage. When she declined, appellant told her to take off her clothes. The victim told
appellant, “I can defend myself,” and he immediately put his hands around her neck,
shoved her to the floor, held her there for several minutes, and tried to choke her. The
victim attempted to, but couldn’t, get away because appellant was twice her size. When
appellant released her, the victim complied and removed her clothes because she was
“scared” of being choked. Appellant told the victim to place a towel on the bed and lie
face down. He then massaged her, told her to flip onto her back, put his hands between her
legs, and inserted his fingers into her vagina. Using the same modus operandi, appellant
sexually assaulted the victim once or twice a month for the next year. Appellant did not
use actual force during any of the subsequent assaults.
Appellant was charged and convicted of one count of sexual abuse of a minor and a
combined thirty-one counts of sexual offense in the second degree, rape in the second
degree, and sexual offense in the third degree.
Held: Affirmed.
On appeal, appellant argued that the evidence was insufficient to sustain his
convictions for the second and subsequent assaults because the State had failed to prove
force or threat of force. He further argued that his incriminating statements to the
Tennessee detectives should have been suppressed because his statements were induced by
improper promises and therefore involuntary under Maryland common law.
First, the Court held that there was sufficient evidence for the jury to find the
essential element of “force” or “threat of force” for all of appellant’s convictions, including
those that stemmed from the second and subsequent assaults. The Court reviewed and
synthesized the relevant case law on threat of force in Hazel v. State, 221 Md. 464 (1960),
Rusk v. State, 289 Md. 230 (1981), and Martin v. State, 113 Md. App. 190 (1996), and
explained that “threat of force” has two elements: The evidence must support a finding that
(1) the conduct and words of the perpetrator were reasonably calculated to create in the
mind of the victim a real apprehension, due to fear, of imminent bodily harm, serious
enough to impair the victim’s will to resist; and (2) the victim’s fear of imminent death or
serious bodily harm must be both genuine and reasonable. The Court noted that the first
sexual assault involved actual force when appellant choked the victim and pinned her to
the floor. For the second and subsequent assaults, however, there was no actual force. The
Court held (a) that appellant’s use of the same modus operandi in the assaults, which
triggered in the victim’s mind a reminder of the actual force used by appellant and a fear
of its repetition, combined with “(1) appellant’s role as a father figure and disciplinarian,
(2) appellant’s physical size, (3) the isolated location of the attacks, (4) the lack of available
assistance, and (5) the inability to escape” were calculated to create a fear of imminent
bodily harm in the victim’s mind; and (b) that the victim’s fear was genuine and reasonable.
Next, applying Maryland common law on the question of voluntariness of
appellant’s incriminating statements to the Tennessee detectives, the Court held that the
detectives did not make any improper promises to induce appellant’s confession. Appellant
pointed to the following statements by the detectives during his interview: (1) “We want
to help you out,” and (2) “Regardless of what you tell us you’re walking out that door
without us” and he was not in “trouble with” them. The Court, citing the Court of Appeals’s
recent opinion in Madrid v. State, No. 50, Sept. Term 2020 (Md. July 9, 2021), explained
that under Maryland common law a confession is involuntary where it is the product of an
improper promise by the police that the suspect “will be given special consideration from
a prosecuting authority or some other form of assistance in exchange for the suspect’s
confession.” See Madrid, slip op. at 34. Because the detectives’ statements about helping
appellant out never expressly or impliedly offered appellant any “special consideration” in
exchange for a confession, and because the detectives’ statements about not arresting
appellant or appellant not being in trouble with them did not promise, expressly or
impliedly, that appellant would not be prosecuted in exchange for a confession, the Court
held that appellant’s statements were voluntary under Maryland common law.
Circuit Court for Washington County
Case Nos. C-21-CR-18-467, C-21-CR-18-765
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1103
September Term, 2019
______________________________________
DRU DARREN BROWN
v.
STATE OF MARYLAND
______________________________________
Graeff,
Berger,
Woodward, Patrick L.
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Woodward, J.
______________________________________
Filed: September 2, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-09-02 10:58-04:00
Suzanne C. Johnson, Clerk
From early 2017 until May 2018, Dru Darren Brown, appellant, sexually assaulted
his girlfriend’s teenage daughter, B.H., on numerous occasions at their home in
Hagerstown, Maryland. On May 2, 2019, appellant was convicted in the Circuit Court for
Washington County of one count of sexual abuse of a minor and multiple counts of sexual
offense in the second degree, rape in the second degree, and sexual offense in the third
degree. The court sentenced appellant to twenty-five years of incarceration on the sexual
abuse of a minor conviction, followed by consecutive sentences of a total of twenty years
suspended, with five years of supervised probation.
On appeal, appellant raises two questions for our review:
1. Is the evidence sufficient to sustain the convictions?
2. Did the trial court err in denying the motion to suppress
[a]ppellant’s statements?
For the reasons set forth herein, we shall affirm.
BACKGROUND
B.H. was born on May 3, 2001. In February of 2013, when B.H. was eleven years
old, she was living with her mother, Jennifer, and her younger sister, M.T., in Hagerstown,
Maryland. At that time, Jennifer was going through a difficult divorce with M.T.’s father
and had just moved with B.H. and M.T. from an abused women’s shelter to a new home.
Appellant, who was then living with his wife, Melonie, in Wisconsin, had been engaged in
a three-year online relationship with Jennifer through a computer game called Ebony.
Because of Jennifer’s “rough divorce” and difficulty in handling her two daughters,
appellant moved to Maryland in February of 2013 and moved in with Jennifer, B.H., and
M.T. Appellant’s and Jennifer’s relationship blossomed, and she gave birth to a son, A.B.,
in January of 2014. In February of 2014, however, appellant convinced Jennifer to allow
Melonie to move in with them. Within one year after Melonie moved in, appellant,
Melonie, and Jennifer began sharing the same bedroom, and that arrangement continued
through May of 2018.
When appellant moved in with Jennifer, B.H., and M.T. in 2013, he became the
person who primarily disciplined B.H. At the beginning, appellant’s discipline took the
form of spankings, taking away toys, and lectures about B.H.’s behavior. In 2017,
however, when B.H. was fifteen years old, almost sixteen years old, the discipline changed
to sexual assaults. The assaults took place once or twice a month until May of 2018 when
B.H. turned seventeen years old.
In May 2018, appellant, Jennifer, Melonie, B.H., M.T., and A.B. attended a Pagan
Unity Festival in Tennessee. While on the trip, B.H. told her mother that appellant had
been “touching [her] inappropriately,” but her mother did not take B.H.’s revelations
seriously. On May 21, 2018, Jennifer was helping B.H. get dressed and made a comment
about how she did not want to touch B.H. inappropriately, a perceived jab based on B.H.’s
claim. B.H. became upset and, while the rest of the family was out eating breakfast, B.H.
locked herself in their hotel room, called her grandmother, and told her grandmother
everything that appellant had done. B.H.’s grandmother called the police.
The same day, May 21, 2018, Detectives Jacob Masteller and Megan Hoffman of
the Metro Nashville Police Department were dispatched to B.H.’s hotel in Brentwood,
Tennessee on a report that “a teenage girl had disclosed sexual abuse by her mother’s
boyfriend.” Upon arrival, the detectives found appellant waiting in the lobby. After
introductions, the detectives and appellant went to the breakfast area of the hotel where the
detectives conducted a recorded interview that lasted about two and one-half hours. After
the interview, the detectives left the hotel without arresting appellant. The detectives then
called their District Attorney and another detective, the latter being in contact with the
Hagerstown police, and were advised to place appellant under arrest on a fugitive from
justice warrant.1 Approximately thirty minutes after the interview appellant was taken into
custody.
Appellant was charged in the Circuit Court for Washington County with one count
of sexual abuse of a minor and a total of thirty-one counts of sexual offense in the second
degree, rape in the second degree, and sexual offense in the third degree. A jury trial was
held on May 1 and 2, 2019.
At trial, B.H. testified about the sexual assaults that appellant committed on her.2
She explained that appellant was the “father figure of the house” and the primary
1
Actually, a fugitive from justice warrant had not yet been issued when Detectives
Masteller and Hoffman were directed to arrest appellant. When the information gathered
from appellant’s interview was conveyed to the Hagerstown police, the Hagerstown police
advised that they planned to obtain a felony warrant for appellant’s arrest. After speaking
to the District Attorney in Nashville’s Child Sex Crimes Unit, Detective Masteller was
advised to place appellant under arrest on the pending fugitive from justice warrant for the
victim’s protection. The District Attorney was able to authorize the arrest before the
warrant was issued because of the nature of the crime and the involvement of another
jurisdiction.
2
Because the sole issue raised by appellant in this appeal regarding the trial is the
sufficiency of the evidence to convict appellant, we view the trial evidence in a light most
favorable to the State. See Jackson v. Virginia, 443 U.S. 307, 319 (1979); State v. Albrecht,
336 Md. 475, 478 (1994). The evidence adduced at the suppression hearing will be
discussed infra.
disciplinarian of all the children. When she was younger, appellant treated B.H. “like all
the other kids,” disciplining them through spankings or losing their toys. Appellant’s
discipline of B.H., however, changed to sexual assaults in 2017 when B.H. was fifteen
years old, almost sixteen years old.
The circumstances surrounding the first sexual assault began when appellant went
to B.H.’s bedroom to discipline her for having “an attitude.” B.H.’s bedroom was located
in the attic of the house and was the only room in the attic. Instead of spanking her as he
had in the past, appellant asked B.H.: “Do you want a massage?” B.H. said that she did
not, and appellant told her to take her clothes off. B.H. responded: “I can defend myself if
I really need to,” which prompted appellant to immediately “put his hands around [her]
neck and shove[] [her] to the floor and h[o]ld [her] there for a few minutes.” Appellant
also “tried to choke [B.H.] out on the floor.” B.H. struggled and tried to get away, but she
was only 5’1,” 130 pounds, at the time and appellant was “[a]bout a foot taller” and “double
if not more” her weight. B.H. then complied with appellant’s demand and took her clothes
off; she did so “[b]ecause [she] was scared” of appellant “choking [her]” and because she
did not want “his nasty hands touching [her] more than they needed to.” Appellant told
B.H. to lay a towel on the bed and lie down on her stomach, which she did. Appellant
massaged B.H.’s back with “massaging oil,” including touching “[a]ny part you can touch”
of B.H.’s “butt.” Appellant then told B.H. to turn over on her back, which she did because
she “was scared.” Appellant proceeded to put his hands between B.H.’s legs and insert
“two to four fingers” into her vagina. Appellant “finger[ed]” B.H. for “about twenty
minutes” that first time.
B.H. testified that the first assault was not an isolated occurrence. She explained
that appellant continued to assault her and that the later assaults “always started the same
way.” Appellant would go to B.H.’s bedroom in the attic “always in the context of
discipline.” B.H. recalled that she would be punished for “the littlest things sometimes.”
If anyone else was in B.H.’s bedroom, appellant would order that person to leave.3
Appellant would instruct B.H. to lay a towel down on the bed, remove her clothes, and lie
down on her stomach. B.H. testified that she complied with appellant’s requests “[b]ecause
every time, [she] was scared.” Appellant “would do his massage and then he would ask
[her] to flip over.” Initially, appellant only inserted his fingers into her vagina, but things
later “escalated,” and appellant would insert his fingers into her vagina, perform oral sex
on her, and insert his tongue into her vagina. He also would place his mouth on her breasts.
The assaults stretched for longer periods of time after the first instance. B.H. recalled being
touched in the manner described above about fifteen to eighteen times, once or twice a
month, the last time being “a week or two before the festival” in May 2018.
B.H. admitted that after the first assault, appellant never choked her or physically
held her down. B.H. said that she did not scream or shout for help because she was “afraid”
and she allowed appellant “to do those things” “[b]ecause just looking at him remind[ed]
[her] of how nasty he is and how forceful he is.” B.H. explained further that she couldn’t
do anything about appellant’s abuse, because “I knew if I told my mom, she wasn’t going
3
B.H’s younger sister, M.T., shared the attic bedroom with B.H. for B.H.’s “whole 15th
year and most of her 16th year.”
to believe me.” According to B.H., her mother “always took [appellant’s] side of the story”
during arguments. During one of his assaults, appellant told B.H. that her mother was “not
gonna do anything” about the attacks because she would “believe his words over [B.H.’s],”
as B.H. was “just a rowdy teenager.” When asked why she didn’t try to fight against
appellant, B.H. recalled telling appellant during the fourth or fifth assault that she had a
work knife nearby. Appellant “convinced” her, however, that “it was [] illegal” for her to
use the knife “even if it was for defense,” and told her that, if she used the knife against
him, she would “go to jail for it.” Appellant also said that no one would believe her
“because he was the adult and [she] wasn’t.” Finally, B.H. said that she never ran out of
her bedroom during appellant’s assaults because she didn’t want to cause a scene in front
of her mother and her mother “wouldn’t believe [her] anyways.”
On May 2, 2019, appellant was convicted of all charges, to wit, one count of sexual
abuse of a minor, five counts of sexual offense in the second degree, six counts of rape in
the second degree, and twenty counts of sexual offense in the third degree. On August 14,
2019, the circuit court sentenced appellant to twenty-five years’ incarceration for sexual
abuse of a minor, followed by consecutive, suspended sentences of twenty years for second
degree sexual offense, twenty years for second degree rape, five years for second degree
sexual offense, five years for third degree sexual offense, and five years for third degree
sexual offense, all concurrent with each other, giving appellant a total of twenty years
suspended and consecutive to the twenty-five years of incarceration for sexual abuse of a
minor. The court also imposed five years of supervised probation. All remaining
convictions were merged for sentencing purposes.
Appellant filed this timely appeal. We shall supply additional facts as necessary
below.
DISCUSSION
I. Sufficiency of the Evidence
A. Standard of Review
When an appellate court reviews for sufficiency of the evidence, we determine
“‘whether, after viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’” Scriber v. State, 236 Md. App. 332, 344 (2018) (emphasis in original)
(quoting Darling v. State, 232 Md. App. 430, 465 (2017)). “It is not our role to retry the
case.” Smith v. State, 415 Md. 174, 185 (2010). “The jury as fact-finder ‘possesses the
ability to choose among differing inferences that might possibly be made from a factual
situation’” and the appellate court “‘must give deference to all reasonable inferences [that]
the fact finder draws, regardless of whether [the appellate court] would have chosen a
different reasonable inference.’” Bible v. State, 411 Md. 138, 156 (2009) (alteration in
original) (quoting State v. Suddith, 379 Md. 425, 430 (2004)). We provide this deference
because the jury had the opportunity to “‘weigh[] the credibility of witnesses and resolv[e]
conflicts in the evidence,’” whereas we do not. Scriber, 236 Md. App. at 344 (quoting
Darling, 232 Md. App. at 465).
B. Contentions of the Parties
Appellant argues that the evidence was insufficient to sustain his convictions
because force is an essential element of each of the charged offenses and “the State failed
to prove force or the threat of force.” Appellant concedes that the evidence was sufficient
to support a finding that the sexual acts “occurred,” but he argues that “[w]ithout any
evidence of force or threat of force, the conviction[s] and resulting sentences cannot stand.”
Specifically, appellant points to the lack of any actual force or threat of force in the second
and subsequent sexual assaults and asserts that the actual force used by appellant in the
first assault was “insufficient to create an objectively reasonable fear of force for multiple
alleged instances of sexual activities over the course of a year.”
The State responds that the evidence was sufficient to show that “B.H. reasonably
feared serious bodily harm” during the subsequent instances of assault, under the totality
of the circumstances. Because appellant used actual force during the first assault, the State
argues that appellant’s “conduct, namely choking B.H. into sexual submission,
communicated that resistance would be met with extreme violence.” The State further
points to appellant’s position as the authority figure in the family, the similarity of the
instances of sexual assault, and B.H.’s belief that her mother would not believe her if she
complained about the assaults. As a result, the State concludes that B.H. developed a sense
of helplessness and fear that extended to the later attacks.
C. Force or Threat of Force
The crimes for which appellant was convicted occurred from May 3, 2017 to May
3, 2018. Appellant was convicted of five counts of sexual offense in the second degree,
which took place during the period of May 3, 2017 to September 30, 2017. Prior to October
1, 2017, Maryland Code, § 3-306 of the Criminal Law Article (“CR”) prohibited sexual
offense in the second degree by providing that “(a) A person may not engage in a sexual
act with another: (1) by force, or the threat of force, without the consent of the other.”
(emphasis added). A “sexual act” was defined in relevant part then, as it is now, as:
[A]ny of the following acts, regardless of whether semen is
emitted:
***
(ii) cunnilingus
***
(v) an act:
1. in which an object or part of an individual’s
body penetrates, however slightly, into
another individual’s genital opening or anus;
and
2. that can reasonably be construed to be for the
sexual arousal or gratification, or for the abuse of
either party.
(2) “Sexual act” does not include:
(i) vaginal intercourse[.]
CR § 3-301(d) (emphasis added).
Effective October 1, 2017, the General Assembly repealed sexual offense in the
second degree as set forth in CR § 3-306. Instead of replacing CR § 3-306, the General
Assembly amended CR § 3-304, the statute prohibiting rape in the second degree, to
provide in pertinent part:
(a) A person may not engage in vaginal intercourse or a
sexual act with another:
(1) by force, or the threat of force, without the consent
of the other[.]
CR § 3-304(a)(1) (emphasis added). Appellant was convicted of six counts of second
degree rape committed from October 1, 2017 to May 3, 2018.
Appellant also was convicted of twenty counts of sexual offense in the third degree
committed from May 3, 2017 to May 3, 2018. Sexual offense in the third degree states:
(a) A person may not:
(1)(i) engage in sexual contact with another without the
consent of the other; and
(ii)
1. employ or display a dangerous weapon, or a
physical object that the victim reasonably
believes is a dangerous weapon;
2. suffocate, strangle, disfigure, or inflict serious
physical injury on the victim or another in the
course of committing the crime;
3. threaten, or place the victim in fear, that the
victim, or an individual known to the victim,
imminently will be subject to death,
suffocation, strangulation, disfigurement,
serious physical injury, or kidnapping; or
4. commit the crime while aided and abetted by
another.
CR § 3-307(a) (emphasis added). “Sexual contact” is defined as “an intentional touching
of the victim’s or actor’s genital, anal, or other intimate area for sexual arousal or
gratification, or for the abuse of either party.” CR § 3-301(e)(1).
Finally, appellant was convicted of one count of sexual abuse of a minor. CR § 3-
602(b) provides:
(1) A parent or other person who has permanent or temporary
care or custody or responsibility for the supervision of a minor
may not cause sexual abuse to the minor.
(2) A household member or family member may not cause
sexual abuse to a minor.
“Sexual abuse” is defined as “an act that involves sexual molestation or exploitation of a
minor, whether physical injuries are sustained or not,” including “rape” and “sexual offense
in any degree.” CR § 3-602(a)(4)(i), (ii).
In the instant case, the parties agree that each of appellant’s convictions requires
sufficient evidence that appellant used actual force or threat of force. Further, the element
of force or threat of force is the sole ground upon which appellant challenges the
sufficiency of the evidence. We must determine, then, whether any rational trier of fact
could have found that appellant used actual force or threat of force in committing the sexual
assaults on B.H. that are the basis of his convictions. See Scriber, 236 Md. App. at 344.
D. Maryland Case Law
The concept of “force” as an essential element of crimes involving sexual assault
has its genesis in Hazel v. State, 221 Md. 464 (1960). There, the Court of Appeals decided
the issue of whether the evidence of force was sufficient to support the appellant’s rape
conviction. In Hazel, the victim was unloading groceries into her house when she “felt an
arm around her neck” and was told that she was being robbed. Id. at 466. The appellant
told the victim that he had a gun, although the victim could not see it, and threatened that
if she moved, he would shoot her baby. Id. at 466–67. The appellant then stole money and
jewelry from the victim and walked through her house looking for more to steal. Id. at
467. He eventually brought the victim into the kitchen, where he tied her hands behind her
and gagged her with a towel. Id. The appellant forced the victim into the cellar and there
made “obscene remarks” and “improper advances.” Id. When the victim gasped “no,” the
appellant pulled the gag tight around her throat and almost strangled her. Id. Upon the
victim’s protest, the appellant loosened the gag and took her into a dark room in the cellar.
Id. There, he told the victim to lie down on the floor and raise her legs, and then he
proceeded to have intercourse with her. Id. The victim did not struggle because she “was
afraid for [her] life.” Id. Later, the appellant forced the victim to go into the living room
where he required her to have intercourse again. Id. at 468.
The Court of Appeals noted that the statute criminalizing rape at the time did not
define the crime, but at common law rape was defined as “the act of a man having unlawful
carnal knowledge of a female over the age of ten years by force without consent and against
the will of the victim.” Hazel, 221 Md. at 468–69. The Court, noting that force was an
essential element of the common law crime of rape, defined it as follows:
Force is an essential element of the crime and to justify
a conviction, the evidence must warrant a conclusion either
that the victim resisted and her resistance was overcome by
force or that she was prevented from resisting by threats to her
safety.
Id. at 469. The Court clarified, however, that “no particular amount of force, either actual
or constructive, is required to constitute rape” and the determination “must depend on the
prevailing circumstances.” Id. The Court further explained the concept of constructive
force:
[F]orce may exist without violence. If the acts and threats
of the defendant were reasonably calculated to create in the
mind of the victim—having regard to the circumstances in
which she was placed—a real apprehension, due to fear, of
imminent bodily harm, serious enough to impair or
overcome her will to resist, then such acts and threats are
the equivalent of force.
Id. (emphasis added).
The Court determined that there was sufficient evidence of force to sustain the
appellant’s conviction. Hazel, 221 Md. at 470. The Court pointed to the trial court’s
opinion wherein the court found that, because of the acts of violence to the victim and the
threats of serious harm to her children and herself, “there existed a genuine and continuing
fear of such harm on the part of the [victim].” Id.The Court of Appeals next addressed the element of force in the 1981 case of Rusk
v. State, 289 Md. 230 (1981). In Rusk, the defendant was convicted of second degree rape,
but this Court reversed the conviction on sufficiency grounds. 289 Md. at 232. The Court
of Appeals granted certiorari to consider whether we had “properly applied the principles
of Hazel in determining that insufficient evidence had been produced to support Rusk’s
conviction.” Id. At the time, the crime of second degree rape was defined by statute as
follows:
A person is guilty of rape in the second degree if the person
engages in vaginal intercourse with another person:
(1) By force or threat of force against the will and without the
consent of the other person . . . .
Id. (emphasis added) (quoting Md. Code (1957, 1976 Repl. Vol., 1980 Supp.), Art. 27. §
463(a)(1)).
In Rusk, the victim had attended an alumnae meeting at her high school, after which
she and a friend decided to get a drink in Fells Point. Id. at 232. The pair visited three
bars, at the last of which they met the appellant. Id. The appellant and the victim’s friend
greeted each other by name. Id. at 232–33. After chatting with the appellant for a while,
the victim told him that she needed to head home. Id. at 233. The appellant asked the
victim for a ride to his apartment, and she agreed. Id. The victim, however, cautioned the
appellant that nothing was going to happen between them and that she just was giving him
a ride, to which the appellant said, “Oh, okay.” Id.
When the two arrived at the appellant’s apartment, the appellant repeatedly asked
the victim to come in, which she declined. Rusk, 289 Md. at 233. The appellant then
reached over and turned off the ignition to her car and took the victim’s car keys. Id. The
appellant got out of the car, and opened the victim’s door saying, “Now, will you come
up?” Id. The victim testified that she did not know what to do, was unfamiliar with the
area, and feared that the appellant might rape her. Id. at 233–34. The victim followed the
appellant into the building and up two flights of stairs to his apartment. Id. at 234. The
appellant told her to sit down and she sat in a chair beside the bed. Id. The victim again
asked if she could leave, and the appellant, still in possession of her car keys, told her that
he wanted her to stay. Id. He then asked her to join him on the bed, pulling her by the
arms toward him and partially undressing her. The victim removed the rest of her clothes
and the appellant’s pants because “he asked [her] to do it.” Id.The victim “beg[ged]” the appellant to let her leave, but he continued to say no.
Rusk, 289 Md. at 234. The victim testified that she was “really scared” of the “look in his
eyes,” and feared that he would kill her if she did not submit. Id. at 234–35. She began to
cry, and the appellant put his hands on her throat and started to “lightly” choke her. Id. at
235. She asked the appellant whether he would let her go without killing her if she did
what he wanted, and he said, “yes.” Id. She then did “what he wanted [her] to,” including
intercourse. Id. After the assault, the victim again asked if she could leave, and the
appellant said, “Yes.” Id. The victim then got dressed, obtained her keys from the
appellant, and walked out to her car, accompanied by the appellant. She asked the appellant
for directions, left, and reported the assault to the police that night. Id.The Court of Appeals explained that Hazel made clear that the victim’s fear had to
be genuine but had not resolved whether a victim’s fear needed to be “reasonable.” Rusk,
289 Md. at 243. The Court noted that Hazel focused on the “calculations of the accused,
not [] the fear of the victim.” Id. The Court, looking to other jurisdictions for guidance,
adopted for the first time in Maryland the majority rule that “the victim’s fear [must] be
reasonably grounded in order to obviate the need for either proof of actual force on the
part of the assailant or physical resistance on the part of the victim.” Id. at 244 (emphasis
added).
Applying the principles of Hazel, as modified above, the Court determined that “the
trier of fact could rationally find that the elements of force and non-consent had been
established and that [the appellant] was guilty of the offense beyond a reasonable doubt.”
Id. at 245. Among others, the Court highlighted the possible factual conclusions that a
rational jury could draw: (1) the taking of the victim’s car keys, late at night, in an
unfamiliar neighborhood was intended by the appellant to immobilize her; (2) the appellant
commanded the victim to enter his apartment after she repeatedly refused; (3) the victim
was badly frightened and feared that the appellant intended to rape her; (4) once inside his
apartment, the appellant refused the victim’s request to leave; (5) the appellant pulled the
victim into the bed, undressed her, and when she began to cry, “lightly” choked her; and
(6) the victim finally submitted when the appellant agreed to let her go without killing her
if she complied with his demands. Id. at 246. The Court concluded with the following
observation:
Just where persuasion ends and force begins in cases
like the present is essentially a factual issue, to be resolved in
light of the controlling legal precepts. That threats of force
need not be made in any particular manner in order to put a
person in fear of bodily harm is well established. Indeed,
conduct, rather than words, may convey the threat.
Id. (emphasis added) (citations omitted).
Over fifteen years after Rusk, the Court of Special Appeals made the next significant
contribution to our understanding of force in sexual assault cases. In Martin v. State, 113
Md. App. 190 (1996), the victim attended a concert at Merriweather Post Pavilion in
Columbia, where she consumed “large quantities of alcohol and inhaled nitrous oxide,” an
intoxicating substance. Id. at 197. She became sick and vomited for a significant period
of time in the restroom. Id. When she left the restroom, she found that the male friend
with whom she had attended the concert had disappeared. Id. She rested a bit and then
wandered away from the concert through a wooded area, unsure of where she was going.
Id. She eventually made her way onto the median strip of Little Patuxent Parkway and
began walking generally toward her home in Montgomery County. Id.The appellant was a sergeant with the Howard County Police Department. Martin,
113 Md. App. at 197. At about 2:30 a.m., the appellant discovered the victim on Little
Patuxent Parkway appearing to be intoxicated. Id. The appellant offered her a ride home,
and she “gladly” accepted. Id. In the victim’s view, the appellant was “polite and friendly.”
Id. at 198.
The victim got into the front passenger seat of the police car and soon fell asleep.
Id. at 197–98. She awoke when the car came to a stop; she was in an unfamiliar “dark
area,” and did not see any people around the car. Id. at 198. The appellant suddenly began
to touch her legs and comment about her body. Id. The victim pretended to be asleep,
hoping that the appellant would stop. Id. He did not stop; the appellant began to fondle
the victim’s vagina and penetrate her with his fingers. Id. The victim testified that she did
not resist “because she believed that the appellant would hurt her, or even kill her, to
prevent her from reporting what was taking place.” Id. She also said that the appellant
was “bigger” than she was and as a police officer, he was armed with a handgun. Id.
Eventually, the appellant inserted a mini-flashlight into the victim’s vagina, repeated the
act, and fondled other parts of her body, including her breasts. Id. at 199. The victim
continued to pretend to be asleep throughout the assault and did not consider running
because she feared that the appellant might shoot her. Id. The appellant finally stopped
and took the victim to her home. Id.
The appellant was convicted of second degree sexual offense, third degree sexual
offense, fourth degree sexual offense, and battery. Martin, 113 Md. App. at 237. On
appeal, the appellant challenged his conviction for second degree sexual offense only on
the ground that there was insufficient evidence of the required element of “force or threat
of force.” Id. The State and the appellant agreed that “there was no actual force used in
committing these sexual acts and that [the victim] offered no actual physical resistance to
the appellant’s sexual actions.” Id. at 244 (emphasis in original). The only question for
this Court to decide was whether the evidence supported a finding of threat of force. Id.
This Court first addressed Hazel’s requirement that “‘the acts and threats of the
defendant were reasonably calculated to create in the mind of the victim . . . a real
apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome
her will to resist.’” Id. at 245 (quoting Hazel, 221 Md. at 469). We observed that “the
conduct need not always be so blatantly ‘forceful.’ Rather, the perpetrator’s creation of
certain conditions may, depending on the circumstances, obviate the need for such outward
expressions of force.” Id. at 246. Looking at the facts in Martin, this Court noted that,
“[a]lthough there were no overt verbal or physical threats made in this case (after all, the
victim appeared to be asleep), there were other circumstances created by the appellant that
had the potential to be very intimidating.” Id. at 249. Specifically, “the appellant knew
that his status as a police officer, the secluded location to which he drove, and the nature
of the sexual acts he performed, his physical appearance, and her questionable sobriety
would have the effect of eliminating any resistance to his efforts by [the victim].” Id. at
250. Therefore, we concluded that there was sufficient evidence to show that appellant
reasonably intended to create circumstances that produced in the victim a real
apprehension, due to fear, of serious bodily harm if she resisted. Id.
Regarding the second element of threat of force, articulated in Rusk, this Court
concluded that the circumstances created by the appellant caused the victim to have “a
reasonable fear of death or serious bodily harm.” Martin, 113 Md. App. at 250 (emphasis
added). We pointed out that the appellant’s “status as a uniformed and armed police officer
was a very important factor that weighs heavily in favor of finding that [the victim]’s fear
was reasonably grounded.” Id. at 249. We further noted that the victim awoke in an
unfamiliar and isolated “dark area” where an armed police officer, who was “much bigger”
than her, began to engage in “extreme” sexual conduct without her permission, and there
were no people available to help her, nor any place for her to escape. Id. The victim was
also still feeling the effects of her consumption of alcohol to some degree. Id. Therefore,
this Court held that “[t]he creation of that set of circumstances constituted constructive
force and rendered the appellant guilty of a sexual offense in the second degree.” Id. at
250.
E. Synthesis of Maryland Case Law
A synthesis of the aforementioned case law shows that “threat of force” has two
required elements. First, with the focus on the perpetrator, the evidence must demonstrate
that the conduct and words of the perpetrator “were reasonably calculated to create in the
mind of the victim . . . a real apprehension, due to fear, of imminent bodily harm, serious
enough to impair or overcome [the victim’s] will to resist.” Hazel, 221 Md. at 469. Second,
with the focus on the victim, the evidence must support a finding that the victim’s fear of
imminent death or serious bodily harm must be both genuine and reasonable. Rusk, 289
Md. at 243–44.
The Court of Appeals and this Court have emphasized that “threats of force need
not be made in any particular manner” and that “conduct, rather than words, may convey
the threat.” Id. at 246; see Martin, 113 Md. App. at 246, 249. When the threats of force
have been conveyed by conduct alone, this Court has looked for “circumstances created by
the appellant that ha[ve] the potential to be very intimidating.” Martin, 113 Md. App. at
249. Such circumstances include, but are not limited to, the following: (1) the status of the
perpetrator as a figure of authority, (2) the physical appearance of the perpetrator, (3) the
isolated or secluded nature of the location of the sexual assault, (4) the familiarity of the
victim with such location, (5) the availability of assistance, (6) the opportunity to escape,
(7) the time of day or night, (8) the nature of the sexual acts performed, and (9) the sobriety
of the victim. See Martin, 113 Md. App. at 249–50; see also Walter v. State, 9 Md. App.
385, 392 (1970) (stating that “there is some analogy between the cases involving parents
and those involving policemen since both the parent and the policeman are figures of
authority”). The aforementioned circumstances, taken from the view of the victim, are
considered by a court to determine whether a rational jury could find that the victim’s
subjective perception of a threat of force is “reasonably grounded.” Rusk, 289 Md. at 244;
see Martin, 113 Md. App. at 245–46. Once sufficient evidence of both required elements
of “threat of force” is adduced from “the myriad of circumstances that can arise,” the issue
of “threat of force” becomes a factual one, to be resolved by the trier of fact. Martin, 113
Md. App. at 247; see Rusk, 289 Md. at 246; Hazel, 221 Md. at 470.
F. Analysis
1. First Sexual Assault
The first sexual assault on B.H. undoubtedly involved appellant’s use of actual force
to overcome B.H.’s resistance to his demands. When B.H. declined appellant’s offer of a
massage and told appellant that she could “defend” herself in response to his demand to
take her clothes off, appellant physically assaulted her by putting his hands around her
neck, shoving her to the floor, holding her on the floor for a “few minutes,” and trying to
choke her. B.H. then complied with appellant’s demand to take her clothes off. B.H. also
complied with appellant’s instruction to lay a towel on the bed, to lie down on her stomach,
and after appellant’s “massage” of her back and buttocks, to turn over on her back. B.H.
stated that she complied with appellant’s demand that she take her clothes off because she
was afraid of appellant “choking” her and because she did not want his “nasty hands
touching” her. B.H. also testified that she complied with appellant’s other demands
because she was “scared.”
Similarly, in Hazel, when the victim said “no” to the appellant’s advances, he pulled
the gag tight around her throat, almost strangling her. 221 Md. at 467. Thereafter, the
victim complied with the appellant’s demands to lie down on the floor in the cellar and
raise her legs, and later to have intercourse with him in the living room. Id. at 467–68. In
Rusk, the appellant refused the victim’s repeated requests to leave his apartment, and when
she started to cry, he put his hands on her throat and started to “lightly” choke her. 289
Md. at 234–35. After seeking and receiving assurances from the appellant that he would
let her go without killing her if she did what he wanted, the victim did “what he wanted
[her] to,” including intercourse. Id. at 235. Therefore, this Court concludes that for
appellant’s first sexual assault on B.H., there was sufficient evidence for a jury to conclude
that the essential element of force was satisfied.
2. Second and Subsequent Sexual Assaults
It is undisputed that at no time during the second and subsequent sexual assaults did
appellant employ actual force to overcome any resistance by B.H. Thus our task is to
determine whether there was sufficient evidence of “threat of force” to support appellant’s
convictions for the second and subsequent sexual assaults on B.H. Specifically, we must
decide whether a rational jury could find that appellant’s conduct and words were
reasonably calculated to create in B.H.’s mind a fear of imminent bodily harm serious
enough to overcome her will to resist and that B.H. had a genuine and reasonable fear of
imminent death or serious bodily harm if she resisted.
The crux of appellant’s argument is that appellant’s use of actual force in the first
sexual assault was “insufficient to create an objectively reasonable fear of force for
multiple alleged instances of sexual activities over the course of a year.” Because
appellant’s use of actual force in the first sexual assault was not repeated, appellant
contends that “there was simply nothing to support an objectively reasonable fear on the
part of B.H.” Appellant is mistaken, because he overlooks the totality of the circumstances
that must be considered in determining whether appellant’s use of actual force in the first
sexual assault conveyed a threat of force for the second and subsequent sexual assaults.
See Martin, 113 Md. App. at 249.
Here, appellant employed the same modus operandi in the second and subsequent
sexual assaults as he did in the first one. Appellant committed each assault on B.H. after
the first one at the same location, in a similar manner, and with almost identical sex acts.
Indeed, the assaults took on an almost ritualistic character. Appellant went to B.H.’s
bedroom in the attic once or twice a month “always in the context of discipline.” B.H.
testified that she would be punished for “the littlest things sometimes.” If anyone else was
in B.H.’s bedroom, appellant would order that person to leave. The assaults “always started
the same way.” Appellant would instruct B.H. to lay a towel down on the bed, remove her
clothes, and lie down on her stomach. After appellant massaged B.H.’s back and buttocks,
he would tell her to flip over. Appellant then would fondle B.H., sometimes perform oral
sex, and penetrate her digitally or with his tongue. He also would place his mouth on
B.H.’s breasts. B.H. testified that she allowed appellant “to do those things” “[b]ecause
just looking at him remind[ed] [her] of how nasty he is and how forceful he is.” (emphasis
added). In sum, by committing the second and subsequent assaults in almost the exact
same manner as the first assault, appellant triggered in B.H. a reminder of the actual force
employed by appellant when she refused his advances and a fear of its repetition if she
were to resist.
Other circumstances identified in the case law as supporting a jury’s finding of
threat of force are present here regarding appellant’s conduct. First, appellant used his role
as “father figure of the house” and primary disciplinarian of the children to facilitate the
commission of the sexual assaults on B.H. Appellant always initiated the assaults in the
context of discipline. As many attackers do, appellant exploited his position as an authority
figure in a parental role to victimize B.H. See Walter, 9 Md. App. at 392 (stating that “there
is some analogy between the cases involving parents and those involving policemen since
both the parent and the policemen are figures of authority”); Martin, 113 Md. App. at 248
(citing to the trial court’s finding that the offending officer “was in position of total
domination and control over the victim” (emphasis omitted)).
Second, appellant’s physical size was much greater than that of B.H. As indicated
above, B.H. was only 5’1” and 130 pounds while appellant was about a foot taller and
double, or more, her weight. Third, the location of the sexual assault was isolated from the
rest of the house and from the rest of the family in the house. B.H.’s bedroom was the only
room in the attic of the family’s house, and appellant would order anyone else in B.H.’s
room to leave. Fourth, there was no assistance available to B.H. B.H. stated that she did
not see the point in telling her mother because “I knew if I told my mom, she wasn’t going
to believe me.” Last, B.H. had no opportunity to escape. Because the sexual assaults took
place in her own home where she believed no adult would provide assistance, B.H.
essentially had no place to go if she escaped from her bedroom during one of appellant’s
attacks.
Finally, in addition to conduct, the words of a perpetrator are considered in
determining whether a jury could find a threat of force. See Hazel, 221 Md. at 470 (stating
that “because of [the] acts of violence . . . and the threats of serious harm to her children
and herself,” the factfinder found “that there existed a genuine and continuing fear of such
harm”). In the instant case, during one of the assaults, appellant told B.H. that her mother
was “not gonna do anything” about the assaults because she would “believe his words over
[B.H.’s],” and B.H. was “just a rowdy teenager.” In addition, during another attack, when
B.H. told appellant that she had her work knife nearby, appellant convinced her that it was
illegal for her to use a knife even in self defense, and if she tried, she would go to jail.
These statements by appellant were calculated to instill in B.H. a genuine fear of serious
bodily harm sufficient to overcome her will to resist, because B.H. was told that neither
her mother nor the legal system would help her if she reported appellant’s sexual assaults.
In sum, this Court holds that a rational jury could find that the essential element of
“threat of force” has been satisfied for all of appellant’s convictions. For the first sexual
assault, appellant employed actual force—violently shoving B.H. to the floor, holding her
on the floor for several minutes, and trying to choke her—to overcome B.H.’s resistance
to his demands. For the second and subsequent assaults, appellant’s use of the same modus
operandi as the first assault, which triggered in B.H.’s mind a reminder of the actual force
used by appellant and a fear of its repetition, along with (1) appellant’s role as a father
figure and disciplinarian, (2) appellant’s physical size, (3) the isolated location of the
attacks, (4) the lack of available assistance, and (5) the inability to escape, were calculated
to create in B.H.’s mind a real fear of imminent bodily harm serious enough to overcome
her will to resist, and under these circumstances, B.H.’s fear of such harm was genuine and
reasonable.
II. Motion to Suppress
A. The Suppression Hearing
On April 30, 2019, the circuit court held a hearing to resolve pending motions,
including a defense motion to suppress appellant’s recorded interview with Detectives
Masteller and Hoffman of the Metro Nashville Police Department. At the beginning of the
hearing, defense counsel argued, among other things,4 that appellant’s incriminating
statements during the interview could not be admitted into evidence because such
4
Appellant also argued that the audio recording of appellant’s interview should be
excluded from evidence because the recording was taken in violation of the Maryland
Wiretap and Electronic Surveillance Act. See 18 U.S.C.A. §§ 2701–2713; Md. Code,
§§ 10-401–414 of the Courts and Judicial Proceedings Article. The trial court agreed,
holding that, because the Nashville detectives were not working with the Hagerstown
police and the exception to the requirement of two-party consent under the statute applied
only to an out of state police officer working with or under the direction of a Maryland
investigative or law enforcement officer, appellant’s recorded interview was taken in
violation of the Maryland wiretap statute. Although the recorded interview was
suppressed, Detective Masteller was permitted to testify at trial about appellant’s
incriminating statements in the interview, because, as we shall discuss infra, the trial court
held that those statements were voluntary under Maryland common law, the Due Process
Clause of the Fourteenth Amendment, and Article 22 of the Declaration of Rights.
statements were involuntary under the common law of Maryland, the Due Process Clause
of the Fourteenth Amendment, and Article 22 of the Declaration of Rights. Both Detective
Masteller and appellant testified at the suppression hearing. Also, the recorded interview
of appellant and transcript thereof were admitted into evidence.
Detective Masteller testified that on May 21, 2018,5 he and Detective Hoffman were
dispatched to a hotel in Brentwood, Tennessee on a report of sexual abuse of a teenage girl
by her mother’s boyfriend. When the detectives arrived, they found appellant waiting for
them in the lobby. The detectives explained to appellant that they were police officers,
they did not intend to arrest appellant, they did not have a warrant, appellant did not have
to talk to them, and if appellant started talking, he could stop. The detectives were in plain
clothes and did not have their guns or badges visible.
The detectives spoke to appellant in the breakfast area of the hotel, where other
people, including the wait staff, were coming and going. The detectives sat at a table across
from appellant. Detective Masteller stated that he “had zero intention of making an arrest
at all,” and that appellant was not in custody. Because appellant was not in custody, the
detectives did not give him his Miranda warnings. Although the detectives told appellant
repeatedly that he did not need to speak to them, appellant was eager to speak to the
detectives and was cooperative, referring to the interview as his “15 minutes of fame.”
Indeed, during the interview, appellant spoke more than the detectives, going on long
5
During trial, the prosecutor misspoke and stated that the date of dispatch was May 21,
2019. The record, however, makes clear that the detectives were dispatched on May 21,
2018.
unrelated tangents about his relationships with his wife and girlfriend. The interview lasted
about two and a half hours. Appellant never indicated that he wanted to leave; he never
got up to leave; and he never asked to end the interview.
At the end of the interview, the detectives told appellant again that he was free to
leave. The detectives then left and went out to the parking lot, and appellant returned to
the lobby and later went outside with his wife. After conferring with their District Attorney
and another detective who was in contact with the Hagerstown police, the detectives
returned to the hotel and arrested appellant. The arrest took place about thirty to forty-five
minutes after appellant’s interview had concluded.
Appellant testified as well. Appellant stated that, when he first spoke to the
detectives in the interview, he denied the allegations that he had been involved in any
sexual activity with B.H. Later, appellant made incriminating statements to the detectives.
When asked why he made those statements, appellant testified that every time that he said
to the detectives that he told them everything he knew, “they kept on wanting more.” When
the detectives “kept on going and going,” appellant “got scared,” “wanted to get out of
there,” and “wanted to go home.” Appellant claimed that if he didn’t say anything, the
detectives would charge him with forcible rape. Appellant then said, “So, the only thing I
could think of was that if I give them what they wanted they would let me go and I could
go home.”
At the end of the State’s case and again at the end of all of the evidence, appellant
pointed to two statements, repeated several times by the detectives, that he claimed were
improper promises under the common law of Maryland—(1) “The thing is we want to help
you out,” and (2) “Regardless of what you tell us you’re walking out that door without us.”
“You’re not in trouble with us.” The following are portions of the recorded interview
relevant to appellant’s contention.
At the beginning of the interview, Detective Masteller told appellant, “Let’s clarify
like you’re not in trouble for anything” and “you don’t have to talk to us.” Similarly,
Detective Hoffman said, “you are not obligated to talk to us at all. But we, you know, we’d
like to understand what’s going on.”
Early in the interview, Detective Hoffman said:
We [] understand that kids do lie. Some kids do lie and
sometimes they tell the truth. A lot of times there’s [] truth
in the middle. That’s why we like to get with the other party
and figure out what the heck is going on.
(emphasis added). Detective Hoffman then encouraged appellant to tell his story by
explaining that B.H.’s allegations might be painting appellant as the “bad guy”:
So, it’s making me wonder, maybe [B.H.] put you in a
bad spot and now she’s turning this around and making you
look like the bad person here? I mean this, this is kind of
where we need to fill in the blanks. We need to have some
sort of an understanding.
(emphasis added). Detective Masteller also suggested that B.H. was “throwing [appellant]
under the bus [] when [the sexual relationship] [was] her idea the entire time.”
Detective Masteller asked appellant to “actually dive into what happened” and talk
about what appellant and B.H. had actually done. Detective Hoffman followed up:
[DETECTIVE HOFFMAN]: Well, I mean we don’t want you
to make anything up but the [] thing is we want to help you
out. We don’t want this girl lying on you and painting you
in a bad light if that’s not true. We want to figure out what
happened. Because obviously something happened or else we
wouldn’t be here. Something happened. We just want to
understand and be able to explain it.
[DETECTIVE MASTELLER]: Regardless of what you tell
us you’re walking out that door without us.
[DETECTIVE HOFFMAN]: Yeah.
[DETECTIVE MASTELLER]: We’re not – you’re not in
trouble with this. We made that very clear at the
beginning. She said it, I said it, I’m saying it a third time.
We’re not taking you to jail if you tell us that you bent her
over and raped her. We’re not going to take you to jail if you
tell us that she seduced you or it was a mutual exchange
between the two of you. I’m not going to talk to Jennifer
either. . . . What we need to know is what the actual truth of
the matter is and right now we have one side of the story. I
think part of what you’re saying is true. I think the context
is very off. And we’ve [] been really getting to it here where
we’re not with her. And that’s what she’s trying to say is,
what’s the truth of the matter? You’re walking out of here
a free man regardless. You’re not in trouble with us.
[APPELLANT]: Okay.
[DETECTIVE MASTELLER]: So it’s not a this or that kind of
situation like you think it is. It’s not. It’s trying to find the
truth of the matter so we know what we’re actually dealing
with.
[APPELLANT]: [B.H.] makes up things. . . .
(emphasis added).
Detective Hoffman stated again, “we’re trying to help you out here,” and told
appellant: “[W]e need to explain it. You know, this whole like she’s [] just acting out.
She’s making this up. Like no one is going to believe that.” Appellant then began to
describe massages that he would give B.H. The detectives pressed on:
[DETECTIVE HOFFMAN]: Okay. Well, that would []
explain what she’s saying. You know? Our whole purpose
of being here is trying to explain it.
[APPELLANT]: I understand. What you want me to say is
like, yeah, yeah, she just, you know, she said yeah you can do
it. Oh, that feels good. You know, like that feels good.
[DETECTIVE MASTELLER]: Whether it feels good or not—
[APPELLANT]: And there it is.
[DETECTIVE MASTELLER]: —therapy or not. I don’t
know.
[APPELLANT]: But I can’t help you. And maybe I’m not
helping myself. Maybe, maybe I am worried about it now.
[DETECTIVE HOFFMAN]: Well, you’re not helping
yourself.
[APPELLANT]: No.
[DETECTIVE HOFFMAN]: You’re not helping yourself by
just letting her do all the talking. That’s not helping you. I
mean this – what would help you is just don’t tell us what
we want to hear. Tell us the truth. That will help you. Just
the truth.
[APPELLANT]: Okay.
(emphasis added).
Later, Detective Masteller told appellant, “I don’t want you to say anything other
than the truth.” When appellant admitted to putting his fingers in B.H.’s vagina, Detective
Hoffman told him not to “make it up.” The detectives continued to push appellant to share
his side of the events, because all they had was “her story.” When appellant responded that
“her story is the only one that matters,” the detectives said that wasn’t true and encouraged
him to offer his side. Appellant admitted to fondling B.H., digitally penetrating her, and
performing oral sex on her, but denied that B.H. ever performed oral sex on him. When
the detectives asked how many times appellant performed oral sex on B.H., appellant
asked, “Can I say none?” Detective Masteller responded, “Just tell me the truth.”
At the conclusion of the suppression hearing, the trial court rendered a thorough and
well-reasoned oral opinion. Regarding appellant’s claim that his incriminating statements
were involuntary under the common law of Maryland, the Due Process Clause of the
Fourteenth Amendment, and Article 22 of the Declaration of Rights, the court observed at
the outset: “If I find that [appellant’s statements] w[ere] the product of inducement or threat
or his senses of free will were overcome[,] my understanding is it’s not admissible for any
purposes, even rebuttal . . . .” The court then commented briefly on the general nature of
appellant’s interview:
I will comment he did seem eager to talk to the
detectives. He testified that it was his 15 minutes of fame. You
could tell from his demeanor on the recording as well as his
testimony here today. And as well as the fact, well it was
almost a two and [a] half hour long audio recording [and] most
of the talking probably was done by [appellant]. He kept going
into tangents about his relationship with his wife and his
girlfriend and his other children and his son in
Tennessee. . . . [A]pplying itch cream to his other daughter and
whether that might be something that would get him in trouble.
And all the while the detectives kept steering him back to this
particular case.
Regarding the detectives’ statement that they “want[ed] to help [appellant] out,” the
trial court found that this statement was not an improper promise. The court explained:
He [] was not promised a benefit. There were
statements to him in the nature of, you know, we want to
help you out. . . . “Well, I don’t mean we don’t want you to
make anything up, but the thing is we want to help you out. We
don’t want this girl lying on you and painting you in a bad light
if that’s not true.” If in fact his statement exculpates him, and
he’s being accused of a crime and his statement clears him it
actually would help him out.
Obviously, his statement didn’t help him out. But it’s
nothing [] like an enticement that if [] you tell us something
incriminating we will go to bat for you with a prosecutor.
We will reduce the charges. We will see that you get bond.
We will go to the authorities and tell them you were
cooperative. It’s [] much more generic and [] not specific
about whatever help the detectives offer him.
It’s to help him [] out if [] this young lady’s lying then
it will help you out to tell us the truth here. That’s not a
promise of a benefit. That’s a conversational use of words
that is designed to obviously to induce a statement, but it’s not
designed really to make a serious offer to help him in any way.
So, I don’t find that as to be an offer of help. And the two or
three other places something like that is said that we want to
help you here it’s not in any way designed to elicit something
from him because there is a promise if you do this for us we
will do that for you.
I think looking at the plain meaning of the words it’s
much more akin to, you know, we just want to find out the
truth. Which incidentally, the police say several times
which incidentally [appellant] [] later on in the interview
indicates, look, you know, what do you want to hear? I’ll tell
you. And both detectives pipe up, we don’t want you to say
what you think we want to hear. We just want the truth.
(emphasis added).
Regarding the detectives’ statements that appellant would be free to leave at the end
of the interview and he was “not in trouble with us,” the trial court found that the detectives
were credible in making these statements, and appellant did walk out after the interview,
albeit for only one-half hour. The court said:
The police throughout the interview told him he
would be free to leave at the end of the interview and
Detective Masteller testified today that he [] meant that, and
they did leave, and the detectives left to the parking lot and
[appellant] went back into the hotel and hung out apparently in
the lobby. Albeit he didn’t have a vehicle, but he could have
walked away. Found some woods and disappeared into them.
***
. . . In fact, like I said, he did walk out of there
immediately and it was only a half hour later when all the ducks
got lined up that he got arrested. And I think Detective
Masteller and for that matter Detective Hoffman were
credible in their statements to [appellant]
contemporaneously with when they made them that he was
not in any trouble and was not—with them—and was not
going to be arrested by them.
(emphasis added).
The trial court also pointed to appellant’s testimony at the suppression hearing that
he knew that he would go to jail if he admitted to the accusations against him. The court
found:
[Appellant] testified at one point that he knows if he
admits to what the police are accusing him of he’ll go to jail.
He testified today, well he felt he was between a rock and a
hard place. He admits it’s consensual. You know, it might be
five years in jail. He says, you know, if it’s a forcible situation
it might be life or longer in jail.
***
. . . [Appellant] clearly seemed to indicate that he knew
he had done something wrong. That’s evident by the fact he
denied it for the first, I don’t know, 80 pages of this 119 page
interview and by the fact that he admitted that he knew he’d
go to jail if he told the police officers what they were asking
him. And it’s evident by the fact that he broke down and
said things like, now he’s cooked and screwed and it’s all over
when he did give the incriminating statement.
(emphasis added).
Finally, the trial court responded to appellant’s argument that his incriminating
statements were involuntary under the Due Process Clause and Article 22 by concluding
that under the totality of the circumstances, appellant’s statements were not involuntary.
The court found that the following circumstances were relevant to its conclusion:
[Appellant] was never prevented from walking out.
It was in the breakfast nook of a restaurant that he and his
family had spent the night. People were coming and going,
wait staff. You can actually hear that in the tape from time to
time, people walking back and forth, while the two detectives
were sitting across from him. [Appellant] testified [that] he felt
that one was to the left and one was to the right and it would
have been difficult for him to get out. Again, they told him
repeatedly, you don’t have to talk to us.
And frankly, I don’t find [appellant] credible about
almost anything he said and specifically I’ll say to that he
was free to leave and objectively and subjectively I think he
felt he was free to leave and he did not have to talk to these
police officers. He testified today that he [] doesn’t feel that
way. But again, [] it seems from the demeanor of his
testimony and his manner of testifying that that’s contrived
at this point.
He doesn’t seem to be drunk or high. He testified today
that he was tired. There is no indication in the recording or in
the testimony of Detective Masteller that [appellant] was tired.
[The prosecutor] pointed out there’s no yawning or anything
like that going on. Again, he seemed excited and cooperative
with the police officers. Not, fine, I’m beat. You know, what
do you want to know? I need to go to bed.
***
He did not repeat what the officers accused him of
exactly. Ultimately, he admitted to fondling the victim and to
performing oral sex on her. The police repeatedly asked him
if he [] had her perform oral sex on him, I’m guessing that
might have been in the statement the victim made because the
police kept bringing that up and he repeatedly denied that. No,
that never happened. So, it’s not that he just said, fine, what
do you want to [] hear? I’ll tell you. Because he admitted to
things that in the recording sound like he credibly did commit
them, and he did not admit to performing or having her perform
fellatio on him and throughout the interview he denied that.
***
Again, he never indicated he wanted to leave. He never
got up to leave. He never indicated he wanted to end the
conversation. I do find [appellant] both from the recording and
from his testimony today seems like an intelligent individual.
He’s not someone who’s easily bamboozled or mislead. He
was in management positions before. He was a pastor for 20
years.
***
. . . The detectives could let [appellant] see the door, so
he knew he was comfortable. I’m kind of jumping around here.
But again, I didn’t have the luxury to take this under
advisement and write a good opinion. He was told he didn’t
have to talk and he was told, you can stop. He was told they
didn’t anticipate making any arrests. There was zero intention
of making arrest. Detective Masteller testified credibly to that
and Detective Masteller testified credibly [appellant] was more
than willing to speak with us.
(emphasis added).
Ultimately, the court concluded:
I don’t find any inducement, coercion, promises, [or]
threats to induce a statement and under [] the totality of the
circumstances that we’ve all heard, and I’ve described in
limited detail here in my ruling that there was any aspect of
involuntariness about the statement and [the defense]
motion to suppress his statement is respectfully declined.
(emphasis added).
B. Standard of Review
The circuit court’s determination from a suppression hearing that a statement is
voluntary is a mixed question of law and fact that we review de novo. Buck v. State, 181
Md. App. 585, 631 (2008). “In undertaking our review of the suppression court’s ruling,
we confine ourselves to what occurred at the suppression hearing.” Lee v. State, 418 Md.
136, 148 (2011) (citing Longshore v. State, 399 Md. 486, 498 (2007)). “‘[W]e view the
evidence and inferences that may be reasonably drawn therefrom in a light most favorable
to the prevailing party on the motion,’ here, the State.” Id. at 148 (quoting Owens v. State,
399 Md. 388, 403 (2007)). “We defer to the motions court’s factual findings and uphold
them unless they are shown to be clearly erroneous.” State v. Luckett, 413 Md. 360, 375
n.3 (2010). “We, however, make our ‘own independent constitutional appraisal,’ by
reviewing the relevant law and applying it to the facts and circumstances of this case.” Id.(quoting Longshore, 399 Md. at 499).
C. Contentions of the Parties
A confession may be used at trial if and only if it is:
“(1) voluntary under Maryland nonconstitutional law, (2)
voluntary under the Due Process Clause of the Fourteenth
Amendment of the United States Constitution and Article 22
of the Maryland Declaration of Rights, and (3) elicited in
conformance with the mandates of Miranda [v. Arizona, 384
U.S. 436 (1966)].”
Winder v. State, 362 Md. 275, 305–06 (2001) (alterations in original) (quoting Hoey v.
State, 311 Md. 473, 480 (1988)). Appellant argues that the trial court erred when it denied
his motion to suppress his incriminating statements to the Tennessee detectives because
those statements were induced by improper promises and therefore involuntary under
Maryland nonconstitutional common law. Appellant points to the same statements made
by the detectives that appellant had argued to the trial court were improper promises: (1)
“We want to help you out,” and (2) “Regardless of what you tell us you’re walking out that
door without us” and he would not be in “trouble with” them. According to appellant, these
statements were improper promises, because “any reasonable person in [a]ppellant’s
position would infer that the detectives had promised not to arrest him and that [a]ppellant
would not be prosecuted for any statements he made.”
Appellant, however, does not challenge the trial court’s factual findings. Further,
he does not argue that the statements were involuntary because of a violation of the Due
Process Clause of the Fourteenth Amendment or Article 22 of the Maryland Declaration
of Rights, or that there was any violation of Miranda. Appellant argues only that the
statements were involuntary under the common law of Maryland.
The State responds that the detectives “did not make any improper inducement
during [appellant’s] interrogation.” According to the State, the statement, “we want to help
you out,” was not an improper inducement, because the purpose of the statement “was to
encourage [appellant] to avail himself of a chance to tell the truth.” The State contends
that, as a result, the statement is merely an exhortation to tell the truth, which is not violative
of Maryland’s common law. The State next argues that, when the detectives told appellant
that “they did not intend to arrest him regardless of what he said during the interview,” and
that “he would not be in trouble with them,” the detectives “had predetermined that they
would not arrest [appellant] regardless of what he said. Thus, whether [appellant] made an
admission or not, he would not receive a special benefit in exchange for special treatment
by the officers.” Alternatively, the State argues that, even if the detectives’ comments were
improper, appellant “did not rely on those remarks in making his admissions.”
D. Voluntariness under the Common Law of Maryland
Recently, in Madrid v. State, ___ Md. ____, ____ (2021), the Court of Appeals set
forth a summary of the law regarding the voluntariness of confessions under the common
law of Maryland. The Court wrote:
Under the common law of Maryland, a confession is
involuntary where “it is the product of an improper threat,
promise, or inducement by the police.” Lee v. State, 418 Md.
136, 158, 12 A.3d 1238, 1252 (2011) (citation omitted). The
common law of Maryland prohibits the admission of a
confession where:
(1) any officer or agent of the police promises or implies
to the suspect that he will be given special consideration
from a prosecuting authority or some other form of
assistance in exchange for the suspect’s confession, and
(2) the suspect makes a confession in apparent reliance
on the police officer’s explicit or implicit inducement.
Id. at 161, 12 A.3d at 1253 (citing Hillard v. State, 286 Md.
145, 153, 406 A.2d 415, 420 (1979)). “Both prongs of the
Hillard test must be satisfied before a confession is deemed to
be involuntary.” Lee, 418 Md. at 161, 12 A.3d at 1253 (quoting
Winder v. State, 362 Md. 275, 310, 765 A.2d 97, 116 (2001))
(brackets omitted). The first prong of the Hillard “test is an
objective one[,]” in that “a suspect’s subjective belief that he
or she will be advantaged in some way by confessing will not
render the confession involuntary unless the belief was
premised upon a statement or action made by an interrogating
officer.” Winder, 362 Md. at 311, 765 A.2d at 116 (citations
omitted). The second prong of the Hillard test requires a court
“to determine whether there was a nexus between the promise
or inducement and the accused’s confession” by assessing “the
particular facts and circumstances surrounding the
confession[,]” including “the amount of time elapsed between
the inducement and the confession.” Id. at 311–12, 765 A.2d
at 117.
Madrid, No. 50, Sept. Term 2020, slip op. at 34–35 (Md. July 9, 2021).
Previously, in Williams v. State, 445 Md. 452 (2015), the Court of Appeals
elaborated on the two-prong test initially articulated in Hillard:6
“The first prong of the Hillard test is an objective one.
In other words, when determining whether a police officer’s
6
The exclusionary rule of involuntary confessions articulated in Hillard stretches back to
the 1873 case, Nicholson v. State, 38 Md. 140, 152 (1873). Maryland Law of Confessions
§ 2:3, at 20–21 (2020-2021 ed.).
conduct satisfies the first prong, the court must determine
whether a reasonable person in the position of the accused
would be moved to make an inculpatory statement upon
hearing the officer’s declaration; an accused’s subjective belief
that he will receive a benefit in exchange for a confession
carries no weight under this prong. Ultimately, the court must
determine whether the interrogating officers or an agent of the
police made a threat, promise, or inducement. The threat,
promise, or inducement can be considered improper regardless
[of] whether it is express or implied.
If the suppression court finds that the law enforcement
officer improperly induced the accused, then the second prong
of the Hillard test requires the court to determine whether the
accused relied on that inducement in making the statement he
or she seeks to suppress. Specifically, the court must examine
whether there exists a causal nexus between the inducement
and the statement[.]”
445 Md. 452, 478–79 (2015) (quoting Hill v. State, 418 Md. 62, 76–77 (2011)). The State
has the burden of proving by a preponderance of the evidence that the confession was
voluntarily made. Winder, 362 Md. at 306.
E. Analysis
Turning to the first prong in Hillard, we look to whether the detectives made an
improper threat, promise, or inducement. As previously indicated, appellant claims that
the detectives made improper promises by telling appellant that they wanted to “help” him
out and that regardless of what appellant told the detectives, he would not be arrested by
them. We summarize the detectives’ statements:
“Help”
• “Well, I mean we don’t want you to make anything up but the [] thing is we
want to help you out. We don’t want this girl lying on you and painting you
in a bad light if that’s not true. We want to figure out what happened.”
• “[W]e’re trying to help you out here.”
• “Well, you’re not helping yourself.”
• “You’re not helping yourself by just letting her do all the talking. That’s not
helping you. I mean this—what would help you is just don’t tell us what we
want to hear. Tell us the truth. That will help you. Just the truth.”
“Not Arrest” and “Not in Trouble”
• “Let’s clarify like you’re not in trouble for anything.”
• “Regardless of what you tell us you’re walking out that door without us.”
• “We’re not—you’re not in trouble with this. We made that very clear at the
beginning. She said it, I said it, I’m saying it a third time. We’re not taking
you to jail if you tell us that you bent her over and raped her. We’re not
going to take you to jail if you tell us that she seduced you or it was a mutual
exchange between the two of you. . . . What we need to know is what the
actual truth of the matter is and right now we have one side of the story. . . .
You’re walking out of here a free man regardless. You’re not in trouble with
us.”
We conclude that the above statements by the detectives do not constitute express
or implied promises to appellant that he would be given “special consideration from a
prosecuting authority or some other form of assistance in exchange for [his] confession.”
See Madrid, slip op. at 34; Hillard, 286 Md. at 153. When the detectives told appellant
that they wanted to help him out, they never indicated that he would receive some form of
“special consideration” or “assistance.” As the trial court aptly found, appellant “was not
promised a benefit,” and the detectives’ statements were “nothing like an enticement that
if you tell us something incriminating we will go to bat for you with a prosecutor. We will
reduce the charges. We will see that you get bond. We will go to the authorities and tell
them you were cooperative.” By contrast, in Winder, a police officer told the defendant, “I
can make you a promise, okay? I can help you. I could help you, I could try to protect
you.” 362 Md. at 289 (emphasis added). The officer offered to personally call the State’s
Attorney to offer the defendant “some help.” Id. The Court of Appeals “determined that
the first prong of the Hillard test was satisfied because, during the twelve-hour interview,
the officers repeatedly said that they would help the defendant and ‘offered him an apparent
means to garner leniency from the state prosecutors and the trial court and protection from
an angry mob.’” Madrid, slip op. at 36 (quoting Winder, 362 Md. at 317).
Furthermore, when their statements are taken in context, the detectives were actually
encouraging appellant to help himself out by telling the truth about what happened between
him and B.H. The detectives told appellant that they didn’t want him “to make anything
up,” to “tell us what we want to hear,” or “to say anything other than the truth.” The
detectives said that they needed to know what was “the actual truth of the matter,” and they
were “trying to find the truth of the matter so we know what we’re actually dealing with.”
Detective Hoffman actually told appellant that telling the truth would help him. She said:
“You’re not helping yourself by just letting [B.H.] do all the talking. That’s not helping
you. I mean this—what would help you is just don’t tell us what we want to hear. Tell us
the truth. That will help you. Just the truth.” It is well established that mere exhortations
by the police for the accused to tell the truth do not render any subsequent incriminating
statements involuntary under Maryland common law. Winder, 362 Md. at 311 (stating that
a mere exhortation to tell the truth is not enough to make a statement involuntary); Ball v.
State, 347 Md. 156, 175–76 (1997) (same).
Regarding the detectives’ statements that they would not arrest appellant regardless
of what he told them, the detectives never expressly promised appellant that he would not
be prosecuted for any statements that he made to them. Appellant does not contend
otherwise. Appellant is in effect arguing that the detectives made an implied promise of
no prosecution that was objectively reasonable. In our view, however, a reasonable person
in the position of appellant would not have believed that, if he admitted to facts constituting
sexual abuse of a minor and multiple incidents of rape or sexual offenses, he would not be
prosecuted. During the interview, the detectives told appellant that the investigation into
B.H.’s accusations had already begun, and even if B.H. recanted, “the investigation will
still continue.” Also, at the suppression hearing, appellant testified that the detectives told
him that an investigation was going on and that he would go to jail if he admitted to B.H.’s
accusations, even if the sexual activity was consensual.
In Smith v. State, 220 Md. App. 256 (2014), this Court addressed an alleged
improper promise under the common law of Maryland where the detective’s statements to
the defendant, who was accused of anally raping a four-year-old child, implied that there
would be “less trouble if [he] . . . admitted to consensual contact.” 220 Md. App. at 276
(alterations in original). In upholding the voluntariness of the confession, we held that
“any reasonable layperson would recognize as ludicrous the chance of charges being
dropped or lesser charges being filed in exchange for a confession to a patently perverse
proposition—a four-year-old consenting to sexual conduct.” Id. at 279. Likewise, in the
instant case, we hold that a reasonable layperson would recognize as ludicrous the
proposition that a promise of no arrest after a police interview implied no prosecution for
incriminating statements about multiple instances of sexual acts and conduct with a
fifteen/sixteen-year-old minor in the same household where the accused is told that the
investigation will continue after the interview and that the incriminating statements could
result in his incarceration.
For the foregoing reasons, we conclude that the State has satisfied the first prong of
the Hillard test by proving that the detectives did not make any improper promises during
their interview of appellant. As a result, we need not address the second prong of the
Hillard test, namely, whether appellant’s incriminating statements were made in reliance
on such improper promises. Therefore, we hold that appellant’s statements made during
the interview with the detectives were voluntary under the common law of Maryland.
Accordingly, the trial court did not err in denying appellant’s motion to suppress.
JUDGMENTS OF THE CIRCUIT COURT
FOR WASHINGTON COUNTY
AFFIRMED. APPELLANT TO PAY
COSTS.