Williams v. State , 219 Md. App. 295 ( 2014 )

REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 651
September Term, 2012
DEANDRE RICARDO WILLIAMS
v.
STATE OF MARYLAND
Woodward,
Zarnoch,
Rodowsky, Lawrence F.
(Retired, Specially Assigned),
JJ.
Opinion by Woodward, J.
Filed: October 1, 2014
On March 30, 2011, DeAndre Ricardo Williams, appellant, was arrested in
Washington, D.C. concerning a fatal shooting in the College Park area in January 2011.
After arriving at the homicide unit in a District of Columbia police station, appellant was
charged and then placed into an interrogation room, along with two Prince George’s County
police officers, Detective Harris1 and Sergeant Gregory McDonald. Immediately prior to
being advised of his Miranda rights, appellant made the comment, “I don’t want to say
nothing. I don’t know, —”. The police then gave appellant his Miranda rights, after which
he confessed to shooting the victim.
Appellant’s subsequent motion to suppress his confession was denied by the Circuit
Court for Prince George’s County. Thereafter, appellant and the State agreed to proceed via
a not guilty plea on an agreed statement of facts. The court convicted appellant of first
degree murder and use of a handgun in the commission of a crime of violence.2 Appellant
was sentenced to life imprisonment, with all but forty-nine years suspended for first degree
murder, and a concurrent twenty years’ incarceration for use of a handgun in the commission
of a crime of violence.
On appeal to this Court, appellant presents two questions for our review, which we
1
Detective Harris’s first name does not appear either in the record or in the parties’
briefs.
2
The State placed all remaining charges against appellant on the stet docket. These
other charges are not relevant to the instant appeal.
have combined into one:3
Did the suppression court err by denying appellant’s motion to
suppress the inculpatory statement that he made to the police?
For the reasons we shall explain, we answer this question “no” and, therefore, we affirm the
judgments of the circuit court.
BACKGROUND
The Underlying Incident
For context to our review of the suppression hearing and the trial court’s ruling, we
shall summarize the agreed statement of facts presented to the circuit court on February 10,
2012, when appellant entered his not guilty plea.
On or about January 10, 2011, appellant and Stephan Weaver4 agreed to rob Justin
DeSha-Overcash of marijuana and money, at gunpoint. The next day, Weaver picked up
appellant at a Super Fresh Market in the Glendale area and drove to 38th Avenue in College
3
The questions posed in appellant’s brief are:
1. Did police violate [appellant’s] right to remain silent during a
custodial interrogation when he said, “I don’t want to say nothing. I
don’t know, —” to which the police responded “But you don’t have
to say nothing” but continued with the interrogation?
2. Was [appellant’s] confession involuntary under Maryland common
law because the police implied that [appellant] might see outside
again if he confessed to a robbery gone bad instead of a premeditated
murder?
4
Weaver was a co-defendant with appellant before the trial court. He is not,
however, a party to the instant appeal.
2
Park. After Weaver parked across the street from the house where DeSha-Overcash was
living, appellant got out of the car alone and put on a ski mask. Brandishing a black ten-
millimeter handgun, appellant entered the residence at 8809 38th Avenue and announced a
robbery.
Inside the house, a physical struggle ensued between DeSha-Overcash and appellant.
DeSha-Overcash resisted the robbery by throwing a glass jar at appellant’s head. When the
two of them struggled for the gun, appellant shot DeSha-Overcash. Appellant fled the house
and ran back to the car where Weaver was waiting. As Weaver drove off, his car was
captured by a speed camera fleeing from the scene.
Inside the car, Weaver asked appellant what happened. Appellant told Weaver that
he shot “him,” meaning the victim, “down low.” Appellant later told the police that he
eventually threw the gun that he used during the shooting into the Anacostia River.
During the subsequent investigation, the police recovered three fired ten-millimeter
cartridge casings from the scene of the incident, all of which were determined to have been
fired from the same unknown firearm. However, no physical evidence recovered from the
scene of the incident was ever linked to appellant.
Additionally, an autopsy of Justin DeSha-Overcash was conducted by Dr. Russell
Alexander of the Office of the Chief Medical Examiner in Baltimore. As part of the autopsy,
Dr. Alexander recovered a ten-millimeter bullet, as well as a base jacket fragment from a
fired ten-millimeter bullet, from the victim’s abdomen. Dr. Alexander determined that the
3
cause of death was multiple gunshot wounds to the abdomen and that the manner of death
was homicide.
On March 26, 2011, the police arrested Weaver. After being advised of his rights,
Weaver confessed to conspiring with appellant to rob the victim at gunpoint by helping to
orchestrate the attempted armed robbery.
Appellant’s Police Interview
On March 30, 2011, appellant was brought in for questioning at the District of
Columbia homicide unit. Prior to being questioned by Detective Harris and Sergeant
McDonald, appellant was charged with twelve criminal offenses, including first degree
murder and use of a handgun in the commission of a crime of violence. The interview took
place in an interrogation room and was videotaped by a single camera placed in a corner of
the room. It is undisputed that appellant was in police custody at the time of his being
questioned.
Appellant admitted during his interview that he entered the house and eventually shot
the victim during an attempted robbery. According to appellant, the victim “rushed [him],”
at which point appellant “whipped the gun out.” During the ensuing struggle, appellant
explained, he shot the victim twice.
The Suppression Hearing
Appellant subsequently moved to suppress his inculpatory statements, arguing that he
had unambiguously invoked his Miranda right to silence. On December 14, 2011, the circuit
4
court (“the suppression court”) held a hearing on appellant’s motion to suppress. The DVD
containing the interview, and a written transcript of the interview, were admitted into
evidence as joint exhibits. At the hearing, appellant testified about his questioning by the
police. Neither Detective Harris nor Sergeant McDonald testified at the hearing.
According to the DVD, which the suppression court viewed, and the transcript of the
interview, Detective Harris began the interview by asking appellant several ministerial,
“icebreaker” questions concerning his address, contact information, and educational
background. Appellant stated, among other things, that he had worked “[o]n and off” for
Safeway for the past six or seven years, and that he attended college for two years on a
football scholarship. The interview proceeded as follows:
DETECTIVE HARRIS: (Inaudible). Heard you was fast
as lightning. Lightning. Okay.
The reason why me and Sergeant
McDonald are here, we are
investigating an incident that
happened in January. We been
working nonstop on it. Through
our investigation your name came
up, okay?
[APPELLANT]: Uh-huh.
DETECTIVE HARRIS: Now, what we have now are
what other people have been
saying about it. It was enough
for us to get an arrest warrant
for you, okay? What we’d like
to do is give you an opportunity
to answer any questions that we
may have, or ask us any
5
questions that you have about
the incident. We want to ask
you questions. You can stop
answering at any time. You
don’t have to talk to us. We
want you to talk to us, to be
honest with you. Like I say, it’s
your prerogative. Like I said,
you can talk to us about anything.
If you are wondering what we
may have to say, this is your
opportunity to say, okay.
[APPELLANT]: What’s the incident?
DETECTIVE HARRIS: Huh?
[APPELLANT]: I said what’s the incident?
DETECTIVE HARRIS: What’s the answer to what?
[APPELLANT]: I said what’s the incident?
DETECTIVE HARRIS: Well, we’ll get into it after I, if
you want to know about it, if
you want to know what we’re
talking about, I’m going to have
to read you your rights. You
have the right to talk to us, you
have the right not to talk to us.
You have the right to talk to us
and stop talking at any time.
You understand that? Like I
said, we’d like to lay everything
out for you and then sit back and
listen to what you have to say.
We’ll listen to anything that you
have to say. Anything. You can
dispute anything that we might
say, and then we’ll listen to you.
6
You understand that? Okay.
Like I said, all we have at this
point is what we’ve heard up to
this point. We would love to hear
from you. You understand?
We’re fair. You’ve probably got
two of the fairest people at the
Homicide Unit talking to you
right now, okay? Like I said,
that’s your prerogative. Like I
said, we’d love to lay it out and
get you to talk to us, but like I
said, you don’t have to. But we
would love for you to talk to us,
and we can stop so you can see
exactly where we’re coming from
and go from there.
Is that something you’d like to do?
[APPELLANT]: I don’t even know what’s going
on. That’s why I ask you what’s
the incident.
DETECTIVE HARRIS: That’s what I said. I can read
you your rights. Like I said,
after that, we can talk. Like I
said, if you don’t like what I’m
saying you ain’t got to say
nothing.
[APPELLANT]: I don’t know what’s going on, so
I—
DETECTIVE HARRIS: Okay. This incident happened
January in College Park.
Through our investigation your
name came up. Like I said, this
is your opportunity to say, yeah,
7
you were involved or no, you
weren’t involved.
[APPELLANT]: I don’t know anything about
what you all are talking about.
SERGEANT MCDONALD: Well, we can get to that. We got
to go over your, your rights,
first.
[APPELLANT]: I know. I still, I don’t know
what,—
SERGEANT MCDONALD: I understand that. I understand
that. But we got to go through
the process. Before we can ask
you were you involved, we got
to,—
DETECTIVE HARRIS: We got stuff we got to take care
of before we,—
[APPELLANT]: Yeah, I understand that. I still
don’t know,—
SERGEANT MCDONALD: I understand that. But we still got
to go through the process, though.
You know. We want to talk to
you, but we got to go through the
process.
DETECTIVE HARRIS: We want to lay everything out to
you, but you have to agree to, you
want to at least hear what we have
to say, and that’s fine. But you say
you don’t, once we read you
your rights, if you don’t have
nothing to do with it, then we
just get up and roll. But we
can’t get into it until we get
8
through that. That’s all I’m
saying.
So if you’re sitting here and
wondering why you’re here, we,
we’re ready to tell you why you
are here.
[APPELLANT]: We already know but it’s so, you
all sound, it sounds so confusing.
I don’t know—
SERGEANT MCDONALD: It’s not confusing. Let me break
it down to you like this right here.
You be, you watch T.V., right?
Do you see when the police walk
up to somebody, and we want to
ask you, we want to talk to you
about something, we always
read the person their rights?
You’ve seen that on T.V., right?
They say, you’ve got the right to
remain silent. Anything you say
can and will be used against you
in court. You’ve heard that
before, haven’t you? Yeah. We
have to go through that
formality to get to what we
want to talk about. That’s, we
have to go through that
formality.
[APPELLANT]: I don’t want to say nothing. I
don’t know,—
SERGEANT MCDONALD: But you don’t have to say
nothing.
[APPELLANT]: Yeah.
9
SERGEANT MCDONALD: You don’t have to say nothing.
That’s you know, that’s your
right. But to get to one point,
from point A to point B, we
have to read you your rights.
And the key word is, they’re your
rights. So we got to read them to
you, so you understand.
(Emphasis added). The DVD of the interview reveals that Sergeant McDonald raised his
hands and interrupted the end of appellant’s sentence as appellant was saying, “I don’t want
to say nothing. I don’t know,—” 5
Shortly after the excerpted portion above, Detective Harris read appellant his Miranda
rights. The detective then asked appellant, “would you like to make a statement or would
you like to talk about why we are here, without a lawyer?” As the DVD shows, appellant
nodded his head silently up and down, signaling “yes.” Detective Harris then asked appellant
if he had been promised anything, “offered any kind of reward or benefit, or . . . threatened
in any way in order to get [him] to make a statement?” The DVD depicts appellant shaking
his head from left to right, signaling “no.” Detective Harris then pulled out a standard Prince
George’s County Advice of Rights and Waiver form (“P.G.C. Form 2628”), signed his
initials next to each paragraph, and gave the form to appellant. Appellant was then asked to
read aloud a portion of the form in order to prove that he could read English, and he did so
successfully. At Detective Harris’s request, appellant proceeded to read over the form and
5
This Court has reviewed the DVD of the interview.
10
signed his initials next to each paragraph. During the course of the interview, appellant made
the following statement:
[APPELLANT]: I’m going to tell you all.
DETECTIVE HARRIS: What happened?
[APPELLANT]: I’m going in the joint and shit. I’m [sic]
didn’t even have a mother fucking gun
out, or no shit like that. So, like you said,
somebody came in the house. But at this
point, there still wasn’t no mother
fucking gun or nothing like that. The
dude rushed me and shit. So I whipped
the gun out and shit. He tried to take the
mother fucking gun. So, I shoot the gun,
but I don’t want to shoot him. He’s still
trying to take the mother fucking gun.
Boom. I shoot the gun again. Then after
that, I don’t know where the fuck I shot,
but I didn’t want to hit him or nothing, no
way. I just was trying to get him off me
and shit, because he was on me and shit,
and then that was that.
Following the evidence and argument by counsel for both parties, the suppression
court denied appellant’s motion, stating:
This Court has had an opportunity to review the motion, the
opposition, the transcript, the DVD, the evidence admitted, as well as
the testimony and the arguments.
The [appellant’s] prior statement, of course, whether
inculpatory or falsely exculpatory, cannot be admitted unless it was
elicited in compliance with Miranda procedural safeguards, was
voluntarily made under Maryland common law, Maryland
constitutional law and the federal constitutional law and did not
violate the [appellant’s] right to counsel.
11
The State must prove by a preponderance of the evidence that
[appellant] has been warned adequately and weighed the privilege
against self-incrimination knowingly and intelligently under the
totality of the circumstances. The Court must consider the
[appellant’s] age, and in this case, it’s 23 at the time of the statement.
Intelligence; in this case, [appellant] testified that he was a sophomore
in college. Experience; the experience of [appellant] is that he’s had
six to seven prior offenses so that he has both pled before the court
and he has experience with the criminal court. Mental capacity; in
this situation, there’s no indication that there’s any mental incapacity
on the part of [appellant] to the contrary. He testified that he believes
himself to be an intelligent person. The interrogation which I will get
to shortly; duration, tactics and inducements to confess among the
various issues.
In this case, two different issues were raised. One, the issue
of the Miranda Waiver, and the second, the voluntariness of the
subsequent confession. The Court notes that at issue in particular
is the expression by [appellant] on page 11 of the transcript after
[appellant], Sergeant McDonald and Detective Harris had had
some lay discussion regarding Miranda Rights. That [appellant]
then said, “I don’t want to say nothing. I don’t know.”
This Court finds the I don’t know, as the State indicated,
to render what would have otherwise been a clear statement at
which time the questions would have to stop an ambiguous and
equivocal statement. Thereafter, Sergeant McDonald says, but
you don’t have to say nothing. [Appellant] says, yeah. Then
Sergeant McDonald again says, you don’t have to say nothing.
That, you know, that’s your right. And they continue to talk
about it and, again, in more or less a lay manner after which
[appellant] says, hold on, I’d like to know what’s going on. So if you
all got to read me my rights, then go ahead. Where after, the Advice
of Rights were presented to [appellant].
Detective Harris went over the Advice of Rights with
[appellant]. He asked at this point, would you like to make a
statement or would you like to talk about why we are here without a
lawyer, and [appellant] nodded his head yes. He then went on to say,
have you been promised anything, have you been offered anything,
12
any kind of reward or benefit or have you been threatened in any way
in order to get you to make a statement, have I threatened you, has he
threatened you, and [appellant] shook his head no. The Advice of
Rights went on.
The detective asked [appellant] if he could read, but didn’t take
his word for it. He actually had him read something out loud to make
sure that he wasn’t just asserting that he was intelligent and literate,
but that indeed he was literate, and then gave it to [appellant] to read.
In observing the DVD, one notes that [appellant] did not
just take the form and sign it as one often does when one gets a
contract, but rather actually took his time and read over the
Advice of Rights which he did then sign. Accordingly, this Court
does not find the claim, vis-a-vis the Miranda Rights, to be a valid
claim and finds the State has met its burden as regards to that
claim.
The second issue is the issue of whether or not the actual
confessions were coerced and whether they were truly, voluntarily
and intelligently made. A review of the DVD indicated that the
interrogation was certainly not a long prolonged interrogation.
[Appellant] was not cuffed. There was no allegations of any physical
coercion, and the interaction between [appellant], Sergeant McDonald
and Detective Harris was indeed cordial. To be sure, the detectives
distinguished premeditated murder and a robbery gone bad. However,
[appellant’s] refusal to acknowledge on the stand that the gone bad
part of the robbery gone bad was a shooting of the victim flies in the
face of the DVD and the transcript and is simply not credible.
The officers in this matter clearly employed trickery regarding
the DNA and fingerprinting, yet such trickery is permissible.[6] The
question is whether [appellant’s] statements were coerced or
6
Appellant makes no argument in his brief that the officers’ references to finding his
DNA and fingerprints at the scene of the crime was improperly deceptive. We note that the
police “are permitted to use a certain amount of subterfuge, when questioning an individual
about his or her suspected involvement in a crime.” Ball v. State, 347 Md. 156, 178 (1997),
cert. denied, 522 U.S. 1082 (1998).
13
compelled or whether they were freely, voluntarily made.
The Court agrees with the State that [appellant] was well aware
that not only did he have an option not to speak, but that he had
repeatedly been advised that he could stop speaking at any time even
if he had started to speak. The Court further finds that the
[appellant’s] statements during the interrogation, including that on
Page 36, no matter what you all find out, they’re going to smoke my
boots anyway, and that which is found on Page 46 of the transcript, I
mean, am I ever going to see the street again, do you all know,
indicate that he did not have the misunderstanding that he now
alleges.
Considering the totality of the circumstances, this Court
does not find that the [appellant’s] decision to give a statement
was the product of physical or psychological coercion, nor that
the officer’s conduct in this case overbore his will to resist or
otherwise brought about a statement not freely self-determined by
[appellant]. Accordingly, the Court finds that the State has met
its burden of proof, and the motion to suppress will be denied.
(Emphases added).
Disposition of Appellant’s Criminal Proceedings
On February 10, 2012, the parties proceeded before the circuit court on an agreed
statement of facts, with appellant entering a plea of not guilty. The court found appellant
guilty of first degree murder and use of a handgun in the commission of a crime of violence.
At sentencing on April 25, 2012, the court imposed on appellant a life sentence, with all but
forty-nine years suspended for first degree murder, and a concurrent twenty years’
incarceration for use of a handgun in the commission of a crime of violence.
This timely appeal followed. Additional facts will be set forth below as necessary to
resolve the issues presented.
14
DISCUSSION
In Maryland, the overarching law regarding the use of a criminal defendant’s
confession against him is clear.
The introduction of a confession as evidence against an
accused at trial is permitted only after it is determined that the
confession was (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.”
Costley v. State, 175 Md. App. 90, 105-06 (2007) (quoting Winder v. State, 362 Md. 275,
305-06 (2001)). Thus, a confession must clear all three hurdles before its use as evidence
against a criminal defendant is permitted.
In the case sub judice, appellant does not challenge the voluntariness of his confession
under the second avenue—namely, that his confession was obtained in violation of the
United States Constitution or the Maryland Declaration of Rights. Rather, he limits himself
before this Court to two arguments: (i) the officers failed to comply with Miranda’s
requirements; and (ii) the confession was obtained involuntarily under Maryland
nonconstitutional law as the result of improper police inducement. Therefore, we will
conduct our review accordingly. See Md. Rule 8-504(a)(6) (requiring a party’s brief to
contain argument in support of its position on each issue).
The suppression court’s ruling denying appellant’s motion to suppress is reviewable
15
in this appeal of his convictions. Md. Rule 4-252(h)(2)(C). “When reviewing a court’s
ruling on a suppression motion, we are constrained to rely solely on what was before the
suppression court.” Ballard v. State, 420 Md. 480, 484 n.3 (2011). Specifically,
we consider only those relevant facts produced at the suppression
hearing that are most favorable to the State as the prevailing party on
the motion. While we accept the factual findings of the trial court,
unless those findings are clearly erroneous, we make our own
independent constitutional appraisal as to whether an action was
proper by reviewing the law and applying it to the facts of the case.
Wimbish v. State, 201 Md. App. 239, 249 (2011) (citations and quotations omitted), cert.
denied, 424 Md. 293 (2012).
1. Invocation of the Right to Silence
The Fifth Amendment to the Constitution of the United States provides that, “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
Const. amend. V. In Miranda v. Arizona, the Supreme Court explained that the “privilege
against self-incrimination” embodied in the Fifth Amendment applies to individuals who are
subjected to custodial interrogation by law enforcement officials. 384 U.S. 436, 467 (1966).
“One of the Court’s stated aims in establishing the Miranda rule is to ‘assure that the
individual’s right to choose between silence and speech remains unfettered throughout the
interrogation process.’” Lee v. State, 418 Md. 136, 149 (2011) (quoting Miranda, 384 U.S.
at 469). In order to combat the “inherently compelling pressures” of custodial interrogation,
“which work to undermine the individual’s will to resist and to compel him to speak where
he would not otherwise do so freely,” any person taken into custody must receive the benefit
16
of certain widely familiar procedural safeguards:
He must be warned prior to any questioning that he has the right to
remain silent, that anything he says can be used against him in a court
of law, that he has the right to the presence of an attorney, and that if
he cannot afford an attorney one will be appointed for him prior to any
questioning if he so desires.
Miranda, 384 U.S. at 467, 479.
“After such warnings have been given, and such opportunity afforded him, the
individual may knowingly and intelligently waive these rights and agree to answer questions
or make a statement.” Id. at 479. However, “‘[t]he rights expressed in the Miranda warning
pertain throughout the interrogation.’” Ballard, 420 Md. at 488 (quoting Lee, 418 Md. at
150). Any and all requests by the person being questioned to exercise his or her Miranda
right to silence must be “scrupulously honored” by police, and have the effect of “cut[ting]
off questioning.” Michigan v. Mosley, 423 U.S. 96, 103 (1975). Stated another way, if “the
right to remain silent is invoked at any point during questioning, further interrogation must
cease.” Berghuis v. Thompkins, 560 U.S. 370, 388 (2010).7
7
There is not a per se bar, however, to subsequent police questioning following an
invocation of the right to silence. A “defendant’s invocation of his right to remain silent does
not preclude later questioning for an indefinite period.” Costley v. State, 175 Md. App. 90,
107 (2007) (citing Michigan v. Mosley, 423 U.S. 96, 102-03 (1975)). At the very least,
however, police must “suspend[] questioning entirely for a significant period” of time before
reinitiating an interrogation. Mosley, 423 U.S. at 107.
There is likewise no Miranda violation where the person being questioned voluntarily
reinitiates the interview with the police. See 384 U.S. at 478. Further, even where there is
a Miranda violation, the law “does not preclude a later voluntary confession by a defendant.”
Costley, 175 Md. App. at 109.
17
Before we reach the question of whether the interrogation of appellant by Detective.
Harris and Sergeant McDonald should have ceased, we must first analyze the foundational
question of whether Miranda applies to this case.
A. Was Appellant’s Comment Made in the Context of Custodial Interrogation?
As we noted in Hoerauf v. State,
It is well established that Miranda warnings are not required in
the absence of interrogation. Interrogation under Miranda refers to
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. An
incriminating response is one whether inculpatory or
exculpatory—that the prosecution may seek to introduce at trial.
178 Md. App. 292, 309 (2008) (citations and internal quotation marks omitted). Thus,
“[w]ithout the presence of both custody and interrogation, the police are not bound to deliver
Miranda warnings and obtain a proper waiver of the rights to silence and counsel before
questioning a suspect.” Cooper v. State, 163 Md. App. 70, 93 (2005) (emphasis in original);
see also In re Darryl P., 211 Md. App. 112, 154 (2013) (noting that Miranda rights attach
“only in the special circumstance of custodial interrogation, the critical circumstance which
the Supreme Court deems to be inherently coercive or compelling”).
As this Court has recognized, it is “[t]he ‘inherent compulsion’ that is brought about
by the combination of custody and interrogation [that] is crucial for the attachment of
Miranda.” Marr v. State, 134 Md. App. 152, 173 (2000) (citation omitted), cert. denied, 362
Md. 623 (2001). Indeed, in Marr, a case discussing whether a person being questioned may
18
“anticipatorily invoke” his Miranda right to counsel, we adopted the following language
from the Supreme Court’s opinion in McNeil v. Wisconsin, 501 U.S. 171 (1991):
“We have in fact never held that a person can invoke his Miranda
rights anticipatorily, in a context other than ‘custodial
interrogation’—which a preliminary hearing will not always, or even
usually, involve. If the Miranda right to counsel can be invoked at a
preliminary hearing, it could be argued, there is no logical reason why
it could not be invoked by a letter prior to arrest, or indeed even prior
to identification as a suspect. Most rights must be asserted when the
government seeks to take the action they protect against. The fact that
we have allowed the Miranda right to counsel, once asserted, to be
effective with respect to future custodial interrogation does not
necessarily mean that we will allow it to be asserted initially outside
the context of custodial interrogation, with similar future effect.”
Marr, 134 Md. App. at 174-75 (quoting McNeil, 501 U.S. at 183 n.3) (italics added in Marr).
In the case sub judice, it is undisputed that appellant was in custody at the time he
commented, “I don’t want to say nothing, I don’t know,—”. The parties do dispute,
however, whether appellant’s statement was made “in the context of custodial interrogation.”
The State argues that appellant’s “comment to police, ‘I don’t want to say nothing. I
don’t know,—’ was not an invocation of his right to silence, because the statement was made
before he was advised of his Miranda rights and was not in response to custodial
interrogation.” Relying on Marr and Costley, the State asserts that appellant’s Miranda
rights had not yet attached. Specifically, the State argues that appellant was not yet subject
to interrogation and had not been fully Mirandized. Therefore, the State concludes that
“[appellant’s] comment was not an invocation of his Miranda right to remain silent, and the
officers were free to subsequently obtain his valid Miranda waiver and question him.”
19
Appellant argues, in response, that, under the circumstances, his comment to Detective
Harris and Sergeant McDonald was made in “the context of an imminent custodial
interrogation,” and thus was a proper invocation of his right to silence.
In Marr, the suspect was arrested and, after being brought to the police department
and placed in an interrogation room, gave a statement to officers after having been given his
Miranda rights and waived the same. 134 Md. App. at 159-60. Sixteen days before the
suspect gave his statement, however, the suspect’s attorney, who had represented him
previously in other matters, called the police on his initiative and “made it clear to [a police
detective] that [the suspect] did not want to talk to police officers without [the attorney]
being present.” Id. at 158. The attorney subsequently faxed a letter to the detective
confirming the conversation and repeating in writing that the suspect would not speak to
officers without the attorney present. Id. at 158-59. Aside from the attorney’s contact,
however, the suspect did not otherwise invoke his right to an attorney. Id. at 159-60.
Instead, as previously stated, the suspect waived his Miranda rights and proceeded to give
a statement. Id. After the suspect moved to suppress his statement in court, the suppression
court denied the motion and found that the suspect knowingly and voluntarily waived his
rights. Id. at 161. We affirmed. Id. at 177-78.
As we explained,
“[t]he antipathy expressed in McNeil towards the anticipatory
invocation of the Miranda rights is consistent with Miranda’s
underlying principles. The Miranda right to counsel is a prophylactic
rule that does not operate independent from the danger it seeks to
20
protect against—‘the compelling atmosphere inherent in the process
of in-custody interrogation’—and the effect that danger can have on
a suspect’s privilege to avoid compelled self-incrimination.”
Id. at 177 (quoting Alston v. Redman, 34 F.3d 1237, 1246 (3d Cir. 1994)). We noted further
that “at least five federal courts of appeal subsequently have interpreted [footnote 3 of the
McNeil opinion] to mean that an individual may not invoke the Miranda right to counsel
before custodial interrogation has begun or is imminent.” Marr, 134 Md. App. at 175
(emphasis added) (citing, e.g., United States v. Grimes, 142 F.3d 1342, 1347-48 (11th Cir.
1998); United States v. LaGrone, 43 F.3d 332, 338-39 (7th Cir. 1994) (“[I]n order for a
defendant to invoke his Miranda rights the authorities must be conducting interrogation, or
interrogation must be imminent.”)). Because the suspect’s purported invocation of his right
to counsel occurred prior to his being in custody, we held that the anticipatory invocation was
invalid under our reading of Miranda and its progeny. Marr, 134 Md. App. at 178. We did
not reach the issue of “whether, in addition to custody, interrogation must be actual or at least
imminent before the right to counsel can be invoked.” Id. at 178.
In Costley, we revisited the issue left open by Marr. The suspect had been arrested
by a police officer and was being transported in the front seat of the police car to a holding
cell. Costley, 175 Md. App. at 97. While stopped at a traffic light, the officer grabbed a
Maryland State Police Detention Log form on which he intended to record the suspect’s
personal information, such as his name, the case number, address, and social security
number. Id. According to the officer’s testimony at the suppression hearing, the officer
21
asked for the suspect’s social security number. Id. The suspect did not acknowledge the
officer’s question initially. Id. The officer then asked again for the suspect’s social security
number, at which point the suspect stated, “You have my wallet, don’t you?” Id. at 97-98.
When the officer responded, “Yes, but why don’t you make this easier on both of us and just
give me the information I need?,” the suspect responded, “I’m not telling you shit.” Id. at 98.
Later, after the suspect was placed in the holding cell, the police read him his Miranda rights
and obtained a signed waiver form from the suspect, as well as a subsequent statement. Id.
As in Marr, the suspect later moved to suppress the statement, and the circuit court denied
the suspect’s motion. Id. at 99-100. Again, we affirmed. Id. at 109-10.
In analyzing the suspect’s claim, we noted that the custodial interrogation requirement
of Miranda is “applicable to invocation of a suspect’s right to remain silent as well as his or
her right to counsel.” Id. at 106 (citing Marr, 134 Md. App. at 177). We elaborated that
“the language of McNeil suggests that custody, absent interrogation, is insufficient.”
Costley, 175 Md. App. at 111 (emphasis added). We stated that, under the circumstances,
the suspect was not being interrogated when he said, “I’m not telling you shit,” because
“[t]he officer’s comments might have been unwise, but the comments complained of were
not questions and did not relate to the crime.” Id. at 107. Therefore, we held that the
suspect’s Miranda rights had not attached at the time of his comment. Id.
We analyzed the issue of whether the invocation of the right to counsel was made in
the context of interrogation after the suspect was taken into custody in Hoerauf, 178 Md.
22
App. At 307. In Hoerauf, patrol officers arrested the suspect and brought him to the police
station. Id. at 299. After arriving at the police station, the suspect was handcuffed to a table
and fingerprinted, then placed in a holding cell, where he remained for several hours. Id. at
304. The suspect testified at the suppression hearing that, while in the holding cell, he
requested several times to call his mother, an attorney. Id. at 304-05. The suspect was
subsequently brought into an interrogation room and subjected to questioning by a police
detective. Id. at 299, 300 n.5. At the suppression hearing, the detective testified that the
suspect “did not want an attorney” while being questioned in the interrogation room. Id. at
303. Furthermore, the suspect himself did not remember whether he requested to speak to
his mother or otherwise requested an attorney while inside the interrogation room. Id. at 305.
The suppression court denied the suspect’s motion. Id. at 312.
On appeal, we affirmed the trial court’s conclusion that the suspect “did not validly
invoke his Fifth Amendment right to counsel prior to giving a statement” to the police. Id.
at 318.8 As we explained:
We come to the same conclusion in the case sub judice as we
did in Costley. Assuming that appellant clearly expressed his desire
for the assistance of counsel by repeatedly asking to talk to his
mother, an attorney, all such requests were made by appellant prior
to being placed in the interrogation room and questioned by
Detective Sofelkanik. As found by the trial court, and not
8
Although this Court ultimately reversed the judgment of the trial court in Hoerauf
v. State, it did so for reasons unrelated to those posed by the instant appeal—namely, that the
trial court abused its discretion in propounding a pattern jury instruction on flight. See 178
Md. App. 292, 318-28 (2008).
23
disputed by appellant, at no time from his entry into the
interrogation room until the completion of his statement did
appellant ask to speak with his mother, or otherwise request the
assistance of counsel. Accordingly, we hold that appellant did not
validly invoke his Fifth Amendment right to counsel prior to giving
a statement to Detective Sofelkanik.
Id. at 318 (emphasis added). Stated another way, we held that, where the suspect does not
invoke his Miranda right after “his entry into the interrogation room,” his prior invocation
was not valid, i.e., such invocation was not made in the context of custodial interrogation.
Id.
In the case sub judice, we conclude that appellant’s Miranda rights had attached by
the time that he made the critical comment to Detective Harris and Sergeant McDonald. In
contrast to the suspect in Hoerauf, appellant’s comment was made after he was placed in the
interrogation room and after he began speaking with the police. Although actual
interrogation had not yet commenced, because Detective Harris had only a “lay discussion”
with, and asked “icebreaker” questions of, appellant up to that point, the interrogation was
“imminent.” See Marr, 134 Md. App. at 174-75. Appellant had already been arrested and
had entered an interrogation room, where he remained in close physical proximity with two
police officers. In addition, prior to appellant’s comment, the officers told appellant at least
three separate times that they would be advising appellant of his Miranda rights. Detective
Harris explained: “You have the right to talk to us, you have the right not to talk to us. You
have the right to talk to us and stop talking at any time.” In short, these circumstances
present the “compelling atmosphere”—and its corresponding danger of “inherent
24
compulsion”—that the Miranda prophylaxis was expressly designed to guard against. Id. at
173, 177 (citing Alston, 34 F.3d at 1247). Therefore, we hold that appellant’s comment was
made “in the context of custodial interrogation,” McNeil, 501 U.S. at 182 n.3, and
consequently, appellant could invoke his right to silence under Miranda.
Appellant was, as he argues in his brief, “in the right time and place to invoke” his
Miranda rights and, thereby, terminate the interrogation if he so chose. See McNeil, 501 U.S.
at 182 n.3 (“Most rights must be asserted when the government seeks to take the action they
protect against.”). We must now evaluate whether appellant’s comment, “I don’t want to say
nothing. I don’t know,—” was, as a matter of law, a valid invocation of his right to silence.
B. Was Appellant’s Invocation Unambiguous?
Appellant contends that “[t]he police violated [his] right to remain silent during a
custodial interrogation when [appellant] said, ‘I don’t want to say nothing. I don’t know,—’
to which the police responded ‘but you don’t have to say nothing’ but continued with the
interrogation.” In support of this contention, appellant argues that he “clearly,
unambiguously and unequivocally invoked his right to remain silent.” Pointing to the context
in which appellant’s statement was made during the videotaped questioning, as well as the
transcript itself, appellant claims that, “[i]t is clear from [his] body language, tone and speed
and cadence of his speech that the second sentence was going to be consistent with the first
sentence and that he was not equivocating.” To that end, appellant asserts that “[i]t makes
no sense whatsoever for [appellant] to say in the same breath, . . . I want to remain silent and
25
then I don’t know.” Instead, appellant claims, “[t]he only reasonable interpretation is that
[appellant’s] second sentence was a continuation and not a renunciation of the sentence he
spoke not one second earlier.”
Appellant also argues that “there is no need to speculate what a reasonable officer
would have interpreted [appellant’s] statement to mean,” because the police officers
questioning appellant clearly understood his statement as an invocation of his right to silence.
In support of this claim, appellant notes that the officers “ repeated back to [appellant] twice
‘But you don’t have to say nothing.’” Indeed, appellant asserts, Sergeant McDonald cut him
off by raising both of his hands and speaking over appellant as he was saying “I don’t know.”
From this, appellant argues that “[t]he State cannot have the police silence a criminal
defendant during his attempt to invoke the right to remain silent and then claim that said
defendant failed to invoke that right.” Therefore, appellant claims, the police did not
“scrupulously honor[]” his invocation of his right to silence, and the suppression court erred
in failing to suppress his statements.
The State asserts, in response, that, “the motions court properly found that
[appellant’s] invocation was ambiguous and equivocal and did not preclude the officers from
obtaining his Miranda waiver and questioning him.” Specifically, the State claims that
appellant’s statement was “given while police were explaining the ‘process’ of going through
his [Miranda] rights,” and, therefore, “could be reasonably understood by the police to be a
matter of [appellant] trying to decide his course of action in dealing with the police,
26
particularly in light of his subsequent advisement and waiver of those rights and his decision
to speak with the police.”
In denying appellant’s motion on this issue at the close of the December 14 hearing,
the suppression court determined that, “the I don’t know, as the State indicated, [] render[s]
what would have otherwise been a clear statement at which time the questions would have
to stop an ambiguous and equivocal statement.” The suppression court further concluded
that, following appellant’s statement, the officers properly proceeded through the Advice of
Rights form with appellant before ultimately obtaining his confession. Accordingly, the
court “[did] not find [appellant’s] claim, vis-a-vis the Miranda Rights, to be a valid claim”
and “[ruled] the State has met its burden as regards to that claim.”
In Davis v. United States, a case involving the right to counsel, the Supreme Court
explained that the
[i]nvocation of the Miranda right to counsel “requires, at a minimum,
some statement that can reasonably be construed to be an expression
of a desire for the assistance of an attorney.” But if a suspect makes
a reference to an attorney that is ambiguous or equivocal in that
a reasonable officer in light of the circumstances would have
understood only that the suspect might be invoking the right to
counsel, our precedents do not require the cessation of
questioning.
Rather, the suspect must unambiguously request counsel.
As we have observed, “a statement either is such an assertion of the
right to counsel or it is not.” Although a suspect need not “speak with
the discrimination of an Oxford don,” he must articulate his desire to
have counsel present sufficiently clearly that a reasonable police
officer in the circumstances would understand the statement to be a
request for an attorney. If the statement fails to meet the requisite
27
level of clarity, Edwards [v. Arizona] does not require that the
officers stop questioning the suspect.
512 U.S. 452, 459 (1994) (emphasis added) (citations omitted). Furthermore, “in the absence
of a clear statement . . . the police are not required to ask ‘clarifying questions’ as to the
suspect’s intended meaning.” Wimbish, 201 Md. App. at 251.
In Berghuis, the Supreme Court was faced with the issue of whether a suspect’s
“persistent silence” in response to police questioning constituted an invocation of his right
to silence. 560 U.S. at 379. After discussing the Davis precedent, the Court explained that
“there is no principled reason to adopt different standards for determining when an accused
has invoked the Miranda right to remain silent and the Miranda right to counsel at issue in
Davis.” Id. at 381.9
Consequently, it is the law in Maryland that a suspect in custodial interrogation must
unequivocally and unambiguously invoke his or her right to silence before the police are
9
In Freeman v. State, this Court held that, before a suspect has waived his or her
Miranda rights, an ambiguous invocation of the right to silence restricted the police to merely
asking clarifying questions. 158 Md. App. 402, 433 (2004). However, as we noted in
Wimbish v. State, Freeman was decided “in the absence of any clear indication from the
Supreme Court as to [the] reach” of Davis v. United States, 512 U.S. 452, 458 (1994). 201
Md. App. 239, 252 (2011). Thus, following Berghuis v. Thompkins, 560 U.S. 370 (2010),
we noted that, “it appears that our holding in Freeman . . . is no longer viable.” Wimbish,
201 Md. App. at 254 n.8 (citing Andrew V. Jezic, Frank Molony, William E. Nolan, & Hon.
Patrick L. Woodward, Maryland Law of Confessions § 12:2 (2010-11 ed.)).
More recently, this Court went even further in In re Darryl P., firmly declaring that,
“[w]hat we earlier held, pre-Berghuis v. Thompkins, in Freeman v. State, is hereby
overruled.” 211 Md. App. 112, 169 (2013) (citation omitted).
To echo this Court’s previous sentiments, Freeman is no longer good law.
28
required to terminate the interrogation. Furthermore, as we have noted, the Davis standard
applies to both post-Miranda waiver and pre-Miranda waiver situations, as in the case sub
judice. See Wimbish, 201 Md. App. at 253 (citing Berghuis, 560 U.S. at 378-82). Therefore,
using an objective standard, we must evaluate whether a reasonable police officer under the
circumstances present in the instant case would understand appellant’s statement to be an
invocation of the right to silence. See Ballard, 420 Md. at 490 (noting that the inquiry is
objective).
As the State conceded below, the isolated statement “I don’t want to say nothing”
would be unambiguous. See also People v. Arroya, 988 P.2d 1124, 1133 (Colo. 1999) (“I
don’t wanna talk no more” held to be an unambiguous invocation); Ballard, 420 Md. at 491
(“You mind if I not say no more and just talk to an attorney about this” held to be an
unambiguous invocation of suspect’s right to counsel); Law v. State, 21 Md. App. 13, 36-37
(suspect’s statement that “he didn’t want to talk anymore” an unambiguous invocation), cert.
denied, 272 Md. 744 (1974). We agree with the suppression court, however, that the “I don’t
know,—” appended to the statement, and made by appellant in the same breath as the first
portion of his comment, “render[s] what would have otherwise been a clear statement at
which time the questions would have to stop an ambiguous and equivocal statement.” As a
classic expression of uncertainty, “I don’t know” introduced a level of doubt into the message
being communicated by appellant to Detective Harris and Sergeant McDonald. Indeed, the
inclusion of those three words strongly suggest that appellant himself —let alone the police
29
officers whom the law charges with understanding his intent—was unsure of how to
proceed.10 At most, appellant’s comment suggested that he might want to remain silent. See
Wimbish, 201 Md. App. at 259 (“If appellant’s comment indicated that he might want a
lawyer provided, that was not enough, under Davis, to require the detectives to end the
interview.”). Consequently, we cannot say that a reasonable police officer faced with the
same circumstances would find appellant’s comment an unambiguous and unequivocal
invocation of the right to silence.
Furthermore, appellant’s comment was more ambiguous when placed in context with
the other statements that he had made in the interrogation room up to that point. Courts from
other jurisdictions have concluded that a suspect’s comments that “could be construed as an
invocation of [the] right to remain silent” may be ambiguous after examining the
circumstances under which those comments were made. United States v. Banks, 78 F.3d
1190, 1197 (7th Cir.), vacated on other grounds sub nom. Mills v. United States, 519 U.S.
990 (1996) (“I don’t got nothing to say” held to be ambiguous “when considered in context”
10
In addition, all of the cases that we have found analyzing comments that include the
phrase “I don’t know” found such comments to be ambiguous. See Commonwealth v. Bishop,
963 N.E.2d 88, 95 n.9 (Mass. 2012) (“I don’t know what’s going on. I’m getting real
nervous and real scared,” held to be ambiguous invocation of right to silence); People v.
Silva, 754 P.2d 1070, 1083-84 (Cal. 1988) (continuing interrogation after suspect stated, “I
don’t know, I really don’t want to talk about that” held not to violate Miranda), cert. denied,
488 U.S. 1019 (1989); West v. State, 720 S.W.2d 511, 518 (Tex. Crim. App. 1986) (en banc)
(“I don’t know how that bitch got killed” held not to be invocation of right to silence), cert.
denied, 481 U.S. 1072 (1987); cf. State v. Sabetta, 680 A.2d 927, 932 (R.I. 1996) (“I don’t
want to talk about it right now” held not to be unequivocal invocation, because “the words
‘right now’ operated to qualify and limit” the suspect’s intent).
30
because the comment could either be an invocation of one’s right to silence or “merely an
angry response to the [waiver of rights] form in front of [the suspect]”); see also United
States v. Sherrod, 445 F.3d 980, 982 (7th Cir. 2006) (“I’m not going to talk about nothin’”
and “I’m not gonna talk about nothin’— if you’d give me a picture of what’s going on, but
I ain’t gonna talk about shit” held to be ambiguous, because comment “is as much a
taunt—even a provocation—as it is an invocation of the right to remain silent”), cert. denied,
549 U.S. 1230 (2007); Burket v. Angelone, 208 F.3d 172, 199-200 (4th Cir.) (“I just don’t
think that I should say anything” and “I need somebody that I can talk to” held to be
ambiguous, because detective “had every reason to believe that [the suspect] wished to talk”
when “considering the circumstances as a whole”), cert. granted, 530 U.S. 1256, and cert.
denied, 530 U.S. 1283 (2000). In the instant case, appellant had asked Detective Harris and
Sergeant McDonald three times, “What’s the incident?” and, three other times, told them that
he didn’t know “what’s going on” or “what you all are talking about.” Viewed objectively,
the statements made by appellant in the moments leading up to his saying, “I don’t want to
say nothing. I don’t know,—” suggest that appellant was merely trying to ascertain from the
police what was the specific incident they were investigating. We need not speculate about
what appellant was actually, subjectively thinking at the time; it is enough for our purposes
that, from an objective standpoint, a reasonable police officer would have believed that the
comment appellant made was ambiguous.
For these reasons, we hold that appellant’s comment to the police in the case sub
31
judice (“I don’t want to say nothing. I don’t know,—”) was ambiguous, and thus the
suppression court did not err when it held that appellant did not invoke his Miranda right to
silence.11
2. Voluntariness of Appellant’s Confession Under Maryland Common Law
Appellant argues that his confession was involuntary “under Maryland common law
because the police implied that [he] might see outside again if he confessed to a robbery gone
bad instead of a premeditated murder.” Appellant further contends that the police “did more
than just present [appellant] with two different characterizations of the crime at issue.”
Instead, appellant asserts that, through their statements, “the police made it clear that if
11
We would be remiss if we did not discuss the nonverbal conduct of the police
officers, as captured on the DVD. Such consideration is permissible, because it is clear from
the record that the suppression court was presented with and actually watched the DVD. See
Rush v. State, 403 Md. 68, 104 (2008) (remanding for consideration of both the interview
transcript and DVD, because the “observation of [] inflections and demeanor . . . may differ
from those inferences that can be drawn from the bare transcript”). As mentioned supra,
appellant was interrupted in the midst of his statement (“I don’t want to say nothing. I don’t
know,—”) by Sergeant McDonald, who noticeably raised his hands and spoke with a forceful
tone.
Nothing we state in this opinion should be read to condone police conduct, verbal or
nonverbal, that seeks to prevent a suspect’s invocation of his Miranda rights by
metaphorically “put[ting] masking tape” on the suspect’s mouth, as appellant argued to the
suppression court. Cf. Ballard, 420 Md. at 489 (“[A] valid waiver ‘cannot be established by
showing only that [the accused] responded to further police-initiated custodial interrogation.’
Using an accused’s subsequent responses to cast doubt on the adequacy of the initial request
itself is even more intolerable.”) (quoting Smith v. Illinois, 469 U.S. 91, 98-99 (1984) (per
curiam) (alteration in original). However, under the totality of the circumstances in the case
sub judice, and upon our own review of the DVD, we cannot objectively say that Sergeant
McDonald’s comments and conduct were so coercive that appellant was prevented, or even
discouraged, from invoking his right to silence.
32
[appellant] confessed that he had committed the murder, but that it was a ‘robbery gone bad’
as opposed to a premeditated murder,” he might “see outside again” or receive some other
form of a less harsh sentence.
Citing Ball v. State and Smith v. State, the State responds that the police officers did
not improperly induce appellant to give his confession. Ball, 347 Md. 156 (1997), cert.
denied, 522 U.S. 1082 (1998); Smith, 20 Md. App. 577, 591, cert. denied, 272 Md. 748
(1974), cert. denied, 420 U.S. 984 (1975). The State further responds that the police merely
“presented two versions of facts with respect to the shooting.” Furthermore, according to the
State, “[t]he police never threatened [appellant] with a longer prison sentence, or promised
a lighter sentence if he confessed”; rather, “they were explaining that ‘[t]here were two
different charges here,’ explaining the differences between premeditated murder, and a
possible accidental shooting during a botched robbery.” The State asserts that, to the extent
that the police made reference “to a longer sentence associated with [the] first-degree
premeditated murder version of facts,” they were merely stating “possible legal consequences
of the findings of fact at trial.” Nor, the State argues, did the police officers improperly
promise benefits to appellant, because “any benefit to [appellant] based on the facts of the
case would have nothing to do with the officer’s actions.” Instead, the benefit “would come
from the state of the law, or a decision by a fact-finder, which is entirely out of the officer’s
hands.”
As an appellate court, we “undertake[] a de novo review of the [suppression court]’s
33
ultimate determination on the issue of voluntariness.” Knight v. State, 381 Md. 517, 535
(2004). Our review is guided by the following principles of Maryland nonconstitutional law.
“[A] confession that is preceded or accompanied by threats or a promise of advantage
will be held involuntary, notwithstanding any other factors that may suggest voluntariness,
unless the State can establish that such threats or promises in no way induced the
confession.” Hill v. State, 418 Md. 62, 75-76 (2011). In evaluating whether a confession
was improperly induced by the police, we are guided by the two-pronged test set forth in
Hillard v. State, 286 Md. 145 (1979), and explained again recently by the Court of Appeals
in Hill:
[A]n inculpatory statement is involuntary and must be suppressed if:
(1) any officer or agent of the police force promises or implies to a
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. Both prongs of the Hillard test must be satisfied before
a confession is deemed to be involuntary.
The first prong of the Hillard test is an objective one. In
other words, when determining whether a police officer’s 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 whether it is express or implied.
If the suppression court finds that the law enforcement
34
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[.]
Id. at 76-77 (emphasis added) (citations and internal quotation marks omitted).
In denying appellant’s motion on this issue, the suppression court stated:
The [] issue is . . . whether or not the actual confessions were
coerced and whether they were truly, voluntarily and intelligently
made. A review of the DVD indicated that the interrogation was
certainly not a long prolonged interrogation. [Appellant] was not
cuffed. There was no allegations of any physical coercion, and the
interaction between [appellant], Sergeant McDonald and Detective
Harris was indeed cordial. To be sure, the detectives distinguished
premeditated murder and a robbery gone bad. However, [appellant’s]
refusal to acknowledge on the stand that the gone bad part of the
robbery gone bad was a shooting of the victim flies in the face of the
DVD and the transcript and is simply not credible.
The officers in this matter clearly employed trickery regarding
the DNA and fingerprinting, yet such trickery is permissible. The
question is whether [appellant’s] statements were coerced or
compelled or whether they were freely, voluntarily made.
The Court agrees with the State that [appellant] was well aware
that not only did he have an option not to speak, but that he had
repeatedly been advised that he could stop speaking at any time even
if he had started to speak. The Court further finds that [appellant’s]
statements during the interrogation, including that on Page 36, no
matter what you all find out, they’re going to smoke my boots
anyway, and that which is found on Page 46 of the transcript, I mean,
am I ever going to see the street again, do you all know, indicate that
he did not have the misunderstanding that he now alleges.
Considering the totality of the circumstances, this Court does
not find that the [appellant’s] decision to give a statement was the
35
product of physical or psychological coercion, nor that the officer’s
conduct in this case overbore his will to resist or otherwise brought
about a statement not freely self-determined by [appellant].
Accordingly, the Court finds that the State has met its burden of proof,
and the motion to suppress will be denied.
“Those statements that have been held to be improper inducements have involved
promises by the interrogating officers either to exercise their discretion or to convince the
prosecutor to exercise discretion to provide some special advantage to the suspect.” Knight,
381 Md. at 536 & n.14 (compiling a list of statements held to be improper inducements); see
also Winder, 362 Md. at 313-14, 316 (promises of “special consideration in the prosecution
of [a suspect]’s case” and implied promises of guaranteeing suspect’s personal protection
against acts of revenge or going to prison are improper inducements). Beyond this, though,
“‘[c]oercive barnacles’ can take many forms and are not limited to instances in which
interrogating officers promise their assistance to the accused.” Hill, 418 Md. at 80 (quoting
Hillard, 286 Md. at 150). Thus in Hill, the Court of Appeals held that a detective’s promise
(or suggestion) that the victim’s family “did not want to see [the suspect] get into trouble, but
they only wanted an apology” improperly implied that the family would assist the suspect in
“avoid[ing] criminal charges or, at the least, lessen the likelihood of a successful criminal
prosecution.” 418 Md. at 79-10. Thus “special consideration from a prosecuting authority
or some other form of assistance in exchange for the suspect’s confession” is improper. Id.
at 76.
36
On the other hand, “a promise to a suspect that the interrogator truthfully would
inform the prosecutor that the suspect either did or did not cooperate is not a promise of
special advantage,” and, therefore, not an improper inducement. Knight, 381 Md. at 536.
Further, “an appeal to ‘the inner psychological pressure of conscience to tell the truth does
not constitute coercion in the legal sense.’” Ball, 347 Md. at 179 (quoting Kier v. State, 213
Md. 556, 562 (1957)); see also Smith, 20 Md. App. at 591 (“[A] mere exhortation to tell the
truth [does] not amount to a prohibited inducement.”) (citation omitted).
In the instant case, after Detective Harris and Sergeant McDonald advised appellant
of his Miranda rights, both orally and in writing via an Advice of Rights form, appellant
waived his rights and agreed to speak with the officers. As the questioning proceeded,
appellant told the police that the incident “wasn’t supposed to be nothing but a robbery.”
Detective Harris then went on at length, speaking largely uninterrupted by either appellant
or Sergeant McDonald:
At this point, we can’t believe what he said because in my opinion, or
in our opinion, you could have just went in there, shot the dude, took
whatever he had. You have no witnesses at that point, and rolled out.
But, [the driver]’s just saying that you had no intentions other than
going in there.
There are two different charges here. There is a pre-
meditated going in, blasting somebody away, taking their stuff
and roll. That’s a bad charge. We go by [the driver’s] story, the
fact that you went in there, he had no intentions on killing this
dude. None. Stuff got out of hand, the dude wouldn’t talk, wouldn’t
putting up what he was saying. The dude is a big dude. You’re kind
of a slim dude, and he wanted to fight. He wanted to see whether or
not you had balls enough to pull the trigger. Came after you, you gave
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a warning shot. He still wouldn’t listen to what you were saying, and
then bam, all hell broke loose. Glass breaking, whole nine.
That’s a different charge, okay? All I’m saying is, I would
not, if I were you, I would not want us to leave here thinking that
you walked in that house, popped this dude, premeditated, walked
in there, I’m going to kill this cat, take everything in the house, and
roll out. You may never see outside again if you let us leave here
thinking that.
***
We’re trying to figure out what happened. Did you just go in
there, cold blooded, shot that dude for no reason, or you just went
in there to do what somebody did to you, just to get back on your
feet and get back in the game? Now, like I said, you’re a smart
dude. You can tell if you’re looking at me, I ain’t playing. I’m telling
you. There’s only two ways out of this thing. That you go in
there, gun that man (indiscernible), flat out no heart, cold blooded
like you, like you could care less about life or you were in there
just to do, and you wasn’t even as violent as the person who did
that to you.
***
We can’t go by what [the driver] said why you were there or what
happened, because they may be trying to cover up, you know, make
it look good for you. Maybe they’re trying to help you out. Hey man,
he didn’t mean to shoot nobody. Man, who, I’m the police. As far as
I’m concerned, you walked up in that joint with the intentions of
killing that dude.
But I need to hear from you and figure out how sincere you
are that that’s not what you meant to happen. That’s the only
reason why we’re here, and if we were some heartless bastards we
could just, screw it, first degree murder. He went in there. He
premeditatedly killed that dude, and that’s it. We ain’t taking no
deals. We’re walking out the door. We ain’t even talking to you.
Send you straight to jail. I mean, if that’s the way, I mean, but we’re
not like that. We, we want to give people opportunities.
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You’re another black guy. You’re still young, and I want to
make sure that you get every opportunity to tell us the truth. Tell
us that you’re not a heartless bastard and went in there and just
killed that dude. We want to know that.
(Emphasis added).
Later in the interview, appellant expressed concern to the officers about the potential
consequences of his charges, saying, “You all tell me I’m already being charged with that
shit. No matter what you all find out, they’re going to smoke my boots anyway.” The
officers denied that this was where things stood, and told appellant that his “statement goes
a long way.” Detective Harris then informed appellant of two possible outcomes, as he saw
it: “It could be as simple as a robbery gone bad, or a flat out cold blooded first degree
murder. It’s as simple as that. Robbery gone bad. First degree murder. Prove it.”
Immediately thereafter, appellant stated, “I’m going to tell you all[,]” and confessed that he
shot the victim.
Appellant claims that “the implication of [what the police told him] is that if
[appellant] were to confess to a robbery gone bad, the police would be able to ensure that
[appellant] would ‘see outside again.’” Appellant also argues that he “was left with the idea
that a deal might be offered, and that his ‘boots might not be smoked’ if he confessed to a
robbery gone bad.” Viewing these claims objectively, we do not agree that Detective
Harris’s statements would cause a layperson to form such beliefs and inferences. Thus, we
conclude that there was no improper inducement made by the State in eliciting appellant’s
confession.
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We find Ball v. State of great value in evaluating this issue. In Ball, the police were
investigating a burglary in which the victim was fatally shot multiple times in the torso. 347
Md. at 167. Their investigation eventually led them to the appellant as a suspect, and the
police brought him in for questioning. Id. at 167-68. After properly Mirandizing the
appellant, the interrogating officers presented the appellant with two documents that one of
the officers had prepared ahead of time. Id. at 168. The two documents were organized in
a parallel structure, with each weaving a narrative hypothesizing about what happened during
the shooting. Id. The first document stated that the victim was “brutally killed” in her
parents’ home, and that the appellant “is a cold blooded killer” who “has no regard for human
life” and “would kill again because he liked it.” Id. The second document, by comparison,
painted a softer portrait of the incident. Id. at 169. In this version, the victim was
“accidentally killed,” and the appellant “has had a tough life,” and “didn’t want to” kill the
victim, but did so during a struggle with the victim and “because he was afraid she could
identify him.” Id. One of the detectives testified that, after reading the documents, the
appellant asked him, “what do they do for me.” Id. The detective explained to the appellant
that the documents “were two different ways of characterizing [the appellant].” Id. After
further discussion between the appellant and the police, the appellant orally confessed to
killing the victim and then provided a written confession. Id. at 170, 172. Before trial, the
circuit court denied the appellant’s motion to suppress both the oral and written statements.
Id. at 172. Subsequently, the suspect was convicted of first degree murder and sentenced to
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death. Id. at 172-73.
The Court of Appeals affirmed the conviction. Id. at 207. Recognizing that
“deception short of an overbearing inducement is a valid weapon of the police arsenal,” the
Court noted that the police “are permitted to trick the suspect into making an inculpatory
statement.” Id. at 178-79 (citations and internal quotation marks omitted). The trickery used
by the police was that both documents presented fact patterns that supported first degree
murder convictions, albeit under different theories—namely, first degree premeditated
murder and felony murder, respectively. See id. at 180. The Court then determined that the
record did not support the appellant’s assertion that the police somehow took advantage of
his ignorance. Id. Instead, the Court explained, “deception short of an overbearing
inducement is a valid weapon of the police arsenal,” and “[s]imilarly, an appeal to the inner
psychological pressure of conscience to tell the truth does not constitute coercion in the legal
sense.” Id. at 178-79. Therefore, the Court concluded that the appellant’s confession was
not rendered involuntary.
The case before us is strikingly similar to Ball. Here, Detective Harris stated (albeit
more explicitly than the officer in Ball) that there were “two different charges”: “a pre-
meditated” murder that revealed appellant to have “flat out no heart” and be “cold blooded
like [he] . . . could care less about life,” and “shot that dude for no reason,” or an accidental
killing in which appellant went to rob the victim’s house with “no intentions on killing this
dude.” In the latter version, appellant went in “just to get back on [his] feet and get back in
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the game,” i.e., obtain enough drugs to viably deal them to others for his financial well-being,
but encountered “a big dude” who “wanted to fight” and came after him such that “all hell
broke loose.” What the officers did not tell appellant was that, regardless of whether the
scenario was a “robbery gone bad” or “a flat out cold blooded first degree murder,” appellant
would, just like the suspect in Ball, face the identical criminal penalty (a conviction of first
degree murder), albeit on different theories (first degree premeditated murder versus felony
murder). Such conduct does not constitute an improper inducement under Maryland law.
See id. at 176.
In addition, we conclude that neither officer promised or even suggested that either
they or someone else involved in the case would assist in obtaining a more favorable
prosecutorial outcome for appellant. Although Detective Harris told appellant that he “may
never see outside again” if the officers were left with the impression that appellant was guilty
of premeditated first degree murder, Detective Harris did not give any indication that he
would obtain special consideration from the court or the prosecutor on appellant’s behalf.
See Hill, 418 Md. at 76. Compare Winder, 362 Md. at 314 (finding improper inducement
where the police told the suspect, among other things, that they were “not interested in
sending [him] to jail for the rest of [his] life,” and repeatedly promised to get “help” for the
suspect, both from the police themselves and from the State’s Attorney’s Office). Instead,
Detective Harris was merely advising appellant of the possible legal consequences of a
verdict of first degree premeditated murder at appellant’s future trial.
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Detective Harris further explained during his lengthy comment to appellant that he
wanted to ensure that appellant “get every opportunity to tell us the truth.” This latter
entreaty to appellant’s sense of conscience was among the last words appellant heard before
confessing to killing the victim. Such appeals to conscience are plainly permissible under
our case law. See Kier, 213 Md. at 562.
Finally, appellant’s statement that the police (and, by proxy, the State) were “going
to smoke [his] boots anyway,” followed by the officers’ denial of that assertion, along with
the suggestion to appellant that his “statement goes a long way,” did not constitute an
improper promise or inducement by the police. Again, neither officer indicated that he would
help appellant with the prosecutor or the court in exchange for his confession. Moreover,
encouraging a suspect to adopt a version of the facts that might mitigate the punishment for
the crime that the suspect committed is not an improper inducement under Maryland law.
See Smith, 20 Md. App. at 591 (holding that a detective’s statement “that the court might take
into consideration a version by the accused of the fire being accidental” was not an improper
inducement); see also Merchant v. State, 217 Md. 61, 69-70 (1958) (holding that an officer’s
statement that he did not know whether or not it would be “easier” on the suspect if he told
the truth, but encouraged the suspect to do so regardless, did not improperly induce a
confession).
Therefore, we conclude that the police did not make any improper promises or
inducements to secure appellant’s confession. Accordingly, appellant’s confession was not
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involuntary under Maryland’s nonconstitutional law.
JUDGMENTS OF THE CIRCUIT COURT
FOR PRINCE G EO RG E’S CO UNTY
AFFIRMED; APPELLANT TO PAY COSTS.
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