CLYDE CAMPBELL v. STATE OF MARYLAND
No. 1103
In the Court of Special Appeals of Maryland
Filed: March 29, 2019
September Term, 2016
A courtroom closure in which defendant’s family was excluded from the courtroom for a total time of three to three and a half hours, encompassing a portion of voir dire and the entire selection and swearing-in of the jury, was not a de minimus closure, and therefore implicated defendant’s Sixth Amendment right to a public trial.
CRIMINAL PROCEDURE – SIXTH AMENDMENT – RIGHT TO A PUBLIC TRIAL – DE MINIMUS CLOSURE – APPLICATION OF KELLY V. STATE TEST
The Court applied the three-factor test articulated in Kelly v. State, 195 Md. App. 403, 421-22 (2010), cert. denied, 417 Md. 502, cert. denied, 563 U.S. 947 (2011). On the first factor, the Court determined that the closure here, encompassing three to three and a half hours, was distinguishable from the two to three hour closure found to be de minimus in Kelly and was more analogous to a closure of an entire morning of proceedings found not to be de minimus in Watters v. State, 328 Md. 38 (1992), cert. denied, 507 U.S. 1024 (1993). Therefore, the first factor weighed against a finding that the closure was de minimus. On the second factor, the Court stated that the observation of jury selection and the swearing-in of members of the jury by members of the defendant’s family (1) instills public confidence in the integrity and fairness of the criminal justice system, (2) ensures the proper use of peremptory challenges by the prosecutor under Batson, (3) safeguards a person accused of a crime against the arbitrary exercise of power by a prosecutor or judge, (4) allows the jurors to see that there are interested persons present, (5) permits members of a defendant’s family to contribute their knowledge and insight on which jurors to select, and (6) impresses on each juror the importance of the solemn duty that he or she is assuming. Therefore, the fact that defendant’s family was excluded from the entirety of the jury selection and swearing-in caused the second factor to weigh heavily against a finding that the closure was de minimus. On the third factor, the Court noted that the record is silent as to whether the entire public or merely appellant’s family was excluded. The Court declined to adopt a per se rule that such a silent record implies a total or partial closure, and ruled that this factor was therefore neutral.
CRIMINAL PROCEDURE – SIXTH AMENDMENT – RIGHT TO A PUBLIC TRIAL – JUSTIFIED CLOSURE
Where the trial court failed to consider any alternatives to closing the courtroom, the
CRIMINAL PROCEDURE – FIFTH AMENDMENT – VOLUNTARY AND KNOWING WAIVER OF MIRANDA RIGHTS
Whether or not a criminal suspect was expressly informed of all possible topics of questioning is not relevant to determining whether the suspect voluntarily and knowingly waived his rights under Miranda v. Arizona, 384 U.S. 436 (1966).
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1103
September Term, 2016
______________________________________
CLYDE CAMPBELL
v.
STATE OF MARYLAND
______________________________________
Nazarian,
Friedman,
*Woodward,
JJ.
______________________________________
Opinion by Woodward, J.
______________________________________
Filed: March 29, 2019
*Woodward, Patrick L., J., now retired, participated in the hearing of this case while an active member of this Court, and as its Chief Judge; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and the preparation of this opinion.
**Wright, J., did not participate in the Court’s decision to designate this opinion for publication pursuant to Md. Rule 8-605.1.
Circuit Court for Baltimore County
Case No. 03-K-14-004633
a. Factor One: Length of the Closure
In the case sub judice, appellant’s family was excluded shortly after the start of voir dire sometime after 9:38 a.m. on the second day of trial, and the family was not allowed to observe the court proceedings until after 3:03 p.m. When we take into account that from 11:48 p.m. to 1:27 p.m. and from 2:48 p.m. to 3:03 p.m., the court was not conducting any proceedings, the length of the closure was still between three and three and one-half hours. The record further reveals that the circuit court recessed at 5:09 p.m. that day, and thus appellant’s family, at best, would have only been able to observe about two hours of appellant’s trial.
A closure of at least three hours in the case sub judice, is distinguishable from Kelly’s “two to three hour[]” courtroom closure. Kelly, 195 Md. App. at 428. Although such factual distinction is admittedly marginal, it is our view that appellant’s courtroom closure is more analogous to the closure of an entire morning as in Watters. 328 Md. at 43. As explained infra, the proceedings that occurred in appellant’s case were of such significance that a lengthy closure, such as at least three hours, weighs against a determination of a de minimus closure. See Kelly, 195 Md. App. at 428 (indicating the significance of the length of the closure is viewed in light of the significance of the proceedings that occurred during that closure by stating “(1) the limited duration of the closure, two to three hours during voir dire”) (emphasis added).
The exclusion of appellant’s family during a portion of voir dire and the entire selection and swearing-in of the jury is the most significant fact that distinguishes the case sub judice from Kelly. As explained supra, Kelly’s family members were only excluded during voir dire, which was a fact on which we heavily relied to distinguish Kelly from Watters. Id. at 427. We wrote that “unlike in Watters, [the closure in Kelly] did not extend to the actual selection of the jury.” Id. at 428 (emphasis added). Moreover, unlike Kelly, the selection and swearing-in of the jury in appellant’s case was not a process conducted at the bench where spectators would not have been able to observe or overhear the parties and prospective jurors. Cf. id. at 427-28. Instead, the parties used their peremptory challenges to select the jury, and the selected jury members were subsequently sworn in in a proceeding that would have been observable to spectators in the courtroom. Accordingly, the proceedings in appellant’s case are analogous to Watters, where the courtroom closure occurred over a period “during which the [voir dire] and selection and swearing of the jury were accomplished.” This factor therefore weighs against a determination that appellant’s courtroom closure was de minimus. See Watters, 328 Md. at 49.
Because the Watters Court did not analyze the significance of the proceedings that took place while the courtroom was closed, we shall take the opportunity to examine the historical and procedural significance of selecting a jury and swearing-in of the jury members occurring in open court.
The United States Supreme Court’s examination of jury selection revealed the following:
[A]fter the Norman Conquest, [ ] the jury came to be but a small segment representing the community, the obligation of all freeman to attend criminal trials was relaxed; however, the public character of the proceedings, including jury selection, remained unchanged. Later, during the fourteenth and fifteenth centuries, the jury became an impartial trier of facts, owing in large part to a development in that period, allowing challenges. 1 W. Holdsworth, A History of English Law 332, 335 (7th ed. 1956). Since then, the accused has generally enjoyed the right to challenge jurors in open court at the outset of the trial.
Although there appear to be few contemporary accounts of the process of jury selection of that day, one early record written in 1565 places the trial “[i]n the towne house, or in some open or common place.” T. Smith, De Republica Anglorum 96 (Alston ed. 1906). Smith explained that “there is nothing put in writing but the enditement”:
“All the rest is doone openlie in the presence of the Judges, the Justices, the enquest, the prisoner, and so many as will or can come so neare as to heare it, and all depositions and witnesses given aloude, that all men may heare from the mouth of the depositors and witnesses what is saide.” Id., at 101 (emphasis added).
If we accept this account it appears that beginning in the sixteenth century, jurors were selected in public.
As the trial began, the judge and the accused were present. Before calling jurors, the judge “telleth the cause of their comming, and [thereby] giveth a good lesson to the people.” Id. at 96-97 (emphasis added). The indictment was then read; if the accused pleaded not guilty, the jurors were called forward, one by one, at which time the defendant was allowed to make his challenges. Id., at 98. Smith makes clear that the entire trial proceeded “openly, that not only the xii [12 jurors], but the Judges, the parties and as many [others] as be present may heare.” Id., at 79 (emphasis added).
The presumptive openness of the jury selection process in England, not surprisingly, carried over into proceedings in colonial America. For example, several accounts noted the need for talesmen at the trials of Thomas Preston and William Wemms, two of the British soldiers who were charged with murder after the so-called Boston Massacre in 1770. Public jury selection thus was the common practice in America when the Constitution was adopted.
Press-Enterprise Co. v. Superior Court of Cal., Riverside, Cty., 464 U.S. 501, 506-08 (1984) (italics in original) (bold emphasis added) (footnotes omitted).
The Supreme Court also explored the significance of the use of peremptory challenges in jury selection in Swain v. Alabama, 380 U.S. 202 (1965). Although Batson v. Kentucky, 476 U.S. 79, 95 (1986), eventually overturned Swain, the Supreme Court’s historical background is still informative:
The peremptory challenge has very old credentials.
* * *
The course in the States apparently paralleled that in the federal system. The defendant’s right of challenge was early conferred by statute, the number often corresponding to the English practice, the prosecution was thought to have retained the Crown’s common-law right to stand aside, and by 1870, most, if not all, States had enacted statutes conferring on the prosecution a substantial number of peremptory challenges, the number generally being at least half, but often equal to, the number had by the defendant.
* * *
In contrast to the course in England, where both peremptory challenge and challenge for cause have fallen into disuse, peremptories were and are freely used and relied upon in this country, perhaps because juries here are drawn from a greater cross-section of a heterogeneous society. . . . The persistence of peremptories and their extensive use demonstrate the long and widely held belief that peremptory challenge is a necessary part of trial by jury. See Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011. Although ‘(t)here is nothing in the Constitution of the United States which requires the Congress (or the States) to grant peremptory challenges,’ Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 30, 63 L.Ed. 1154, nonetheless the challenge is ‘one of the most important of the rights secured to the accused,’ Pointer v. United States, 151 U.S.
The function of the challenge is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed before them, and not otherwise. In this way the peremptory satisfies the rule that ‘to perform its high function in the best way ‘justice must satisfy the appearance of justice.‘‘ In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942.
Swain, 380 U.S. at 212, 214-16, 218-19 (emphasis added) (footnotes omitted).
In our view, the importance of the selection of the jury in open court is further highlighted by Batson and its progeny, which prohibits prosecutors and defense attorneys from using a peremptory challenge to strike a juror based on race, ethnicity, or gender. See Batson, 476 U.S. at 89; Hernandez v. New York, 500 U.S. 352, 369 (1991) (plurality opinion) (suggesting that peremptory challenges based on ethnicity are prohibited); Georgia v. McCollum, 505 U.S. 42, 49-50 (1992) (prohibiting the use of discriminatory peremptory challenges by the defense or prosecution); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 130-31 (1994) (prohibiting peremptory challenges based on gender). Such prohibition has been held not only to “safeguard[] a person accused of crime against the arbitrary exercise of power by prosecutor[s] or judge[s,]” but to advance “public confidence in the integrity of the criminal justice system.” See Batson, 476 U.S. at 86; McCollum, 505 U.S. at 48-50. It is because “[t]he petit jury has occupied a central position
A defendant’s family, like appellant’s family in the instant case, has an interest in observing the prosecutor employ his or her peremptory challenges to ensure compliance with Batson and to serve as a deterrent from any “arbitrary exercise of power.” See, e.g., In re Oliver, 333 U.S. at 270 (“The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power.”). Having family members present during the selection of the jury also allows jurors to see that there are interested parties present and allows “the defendant’s family to contribute their knowledge and insight” on which jurors to select. Cf. Watters, 328 Md. at 48 (“Along with the general detriments associated with a closed trial, notably the inability of the public to judge for itself and to reinforce by its presence the fairness of the process, the present case demonstrates other kinds of harms: the inability of the defendant’s family to contribute their knowledge or insight to the jury selection and the inability of the venirepersons to see the interested individuals.”).
Members of the public at large also have an interest in observing jury selection to ensure that all parties are complying with Batson, because “[j]ust as public confidence in criminal justice is undermined by a conviction … where discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by . . . discriminatory peremptory strikes, obtains an acquittal.” McCollum, 505 U.S. at 50; see
ii. Significance of the Public Swearing-in of the Jury
As to the significance of the swearing-in of the jury, this Court wrote:
“From its earliest institution, the jury was formally sworn to declare the truth as between parties[.]” 1 Francis X. Busch, Law and Tactics in Jury Trials 9 (Encycl. ed.1959).
* * *
Although historically established by legislation, today, Maryland’s requirement that a jury be sworn is found in the Maryland Rules: “The jurors and any alternates to be impaneled shall be called from the qualified jurors remaining on the list in the order previously designated by the court and shall be sworn.” Md. Rule 4-312(h).6
Alston v. State, 177 Md. App. 1, 18-19 (2007) (footnote omitted), aff’d, 414 Md. 92 (2010). We expressed the following opinion on “the purpose and benefits of the oath” administered to the jury:
The solemnity of calling the juror before the prisoner, in the presence of the court, and his there taking the solemn oath prescribed by law to well and truly try and true deliverance make of that prisoner, not
only gives the prisoner a comfortable assurance that he is to have a fair and impartial trial, but has a salutary tendency to prepare the mind of the juror for the solemn duty he is assuming. We think the jury should be sworn in each case.
Id. at 21 (quoting Slaughter v. Georgia, 28 S.E. 159 (Ga. 1897)) (emphasis in original). We, therefore, determined that “[t]he swearing of the jury has been recognized as an integral step in the conduct of a criminal trial.” Id. at 19 (emphasis added). We further held that the failure to swear the jury is a structural error “akin to [a] violation of the public trial guarantee addressed in Waller v. Georgia[.]” Id. at. 25.
In our view, the swearing-in of a jury in an open proceeding with interested parties present impresses on jurors the importance of “the solemn duty he [or she] is assuming[,]” see id. at 21, and promotes the public’s confidence that jurors under oath will “pay attention to the evidence, observe the credibility and demeanor of the witnesses and conduct themselves at all times, as befits one holding such an important position.” See id. at 20 (quoting Michigan v. Pribble, 249 N.W.2d 363, 366 (Mich. Ct. App. 1976)). Therefore, we conclude that the swearing-in of the jury in open court furthers the purpose of the Sixth Amendment: “‘that the public may see [that the accused] is fairly dealt with . . . and that the presence of interested spectators may keep his triers keenly alive to a sense of their responsibility and to the importance of their functions.’” See In re Oliver, 333 U.S. at 270 n.25 (quoting Cooley, Constitutional Limitations (8th ed. 1927) at 647) (emphasis added).
iii. Significance of the Proceedings in the Case Sub Judice
The above examination confirms that the selection and swearing-in of the jury are vital proceedings in our judicial system. Trial proceedings with such historical
c. Factor Three: Scope of the Closure
Although it is undisputed that appellant’s family was excluded from the voir dire on the morning of the trial’s second day and the entire selection and swearing-in of the jury, the record is silent as to the presence of members of the public during these proceedings. We decline the State’s invitation to adopt a de facto rule that a silent record implies the presence of the public, and therefore only a partial closure. Longus, 416 Md. at 452 (plurality opinion) (suggesting that “in some cases, members of the defendant’s family or friends may be the only spectators, which would make a ‘partial’ closure under those circumstances a de facto total closure”). We also decline to adopt a de facto rule that a silent record implies the absence of the public, and therefore a total closure. Consequently, we hold that this factor is neutral.
2. Conclusion
In weighing all of the factors above, this Court concludes that the closure in the case sub judice was not de minimus. We base this conclusion first on the significant amount of time, three to three and one-half hours, that the proceedings were closed to the members of appellant’s family. The most important factor, however, is the closure of the courtroom to appellant’s family during the selection and swearing-in of the jury. Observation of jury
B. Was the Closure Justified Under Waller?
As stated above, the Supreme Court provided in Waller the four-factor test that courts must apply in order to justify the exclusion of the public from any stage of a criminal trial:
[1] “[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, [2] the closure must be no broader than necessary to protect that interest, [3] the trial court must consider reasonable alternatives to closing the proceeding, and [4] it must make findings adequate to support the closure.”
This Court need not look any further than the Supreme Court’s opinion in Presley to hold that the closure in the case sub judice was not justified. 558 U.S. at 214-15. In Presley, the trial court, sua sponte, excluded Presley’s uncle from the courtroom at the beginning of voir dire. Id. at 210. Presley’s attorney promptly objected to “the exclusion of the public from the courtroom,” and the court ruled that Presley’s uncle could watch the proceedings when the trial started. Id. After his conviction, Presley presented evidence at a hearing on his motion for a new trial that demonstrated that “14 prospective jurors could have fit in the jury box and the remaining 28 could have fit entirely on one side of the courtroom, leaving adequate room for the public.” Id. at 210-11. The trial court denied the motion, stating: “It’s totally up to my discretion whether or not I want family members in the courtroom to intermingle with the jurors and sit directly behind the jurors where they might overhear some inadvertent comment or conversation.” Id. at 211. Such ruling was affirmed by both the Court of Appeals and the Supreme Court of Georgia. Id.
As to whether the trial court in Presley complied with the four-factor test set forth in Waller, the Court focused on the third factor: “‘the trial court must consider reasonable alternatives to closing the proceeding.’” Id. at 214 (quoting Waller, 467 U.S. at 48). Quoting its language in Press-Enterprise v. Superior Court of Cal., River Cty, 464 U.S. 501 (1984), the Court made explicit that a trial court must consider alternatives to closing a courtroom:
“Even with findings adequate to support closure, the trial court‘s orders denying access to voir dire testimony failed to consider whether alternatives were available to protect the interests of the prospective jurors that the trial court‘s orders sought to guard. Absent consideration of alternatives to closure, the trial court could not constitutionally close the voir dire.”
Id. (quoting Press-Enterprise, 464 U.S. at 511).
Moreover, the Court explained:
Trial courts are obligated to take every reasonable measure to accommodate public attendance at criminal trials. Nothing in the record shows that the trial court could not have accommodated the public at Presley’s trial. Without knowing the precise circumstances, some possibilities include reserving one or more rows for the public; dividing the jury venire panel to reduce courtroom congestion; or instructing prospective jurors not to engage or interact with audience members.
Like the court in Presley, the prosecutor in the instant case had a concern about improper communications between appellant’s family and the prospective jurors. The prosecutor failed, however, to proffer any evidence that any such communication occurred, and even if such communication had occurred, the circuit court failed to make any findings to that effect. More importantly, the circuit court, like the trial court in Presley, did not consider any alternatives to closure. When, during voir dire, the State moved to exclude appellant’s family from the courtroom, defense counsel observed that “there’s clearly space at this point in the courtroom[.]” As suggested by the Supreme Court in Presley, the trial court could have allayed the prosecutor’s concern by instructing the jurors and appellant’s family not to “engage or interact” with each other. See Presley, 558 U.S. at 215. Then, at the beginning of jury selection, the court noted that “we have a packed courtroom here,” but acknowledged that no one was sitting in the jury box or in the folding chairs in front of the jury box. Assuming that all of the other seats in the courtroom were occupied by prospective jurors, the court could have made space for appellant’s family by placing the first twelve jurors in the jury box and having the parties strike from the box.7 Therefore,
II. Admissibility of Appellant’s Statements
Appellant challenges the trial court’s admission of his statements to the police on multiple grounds. Regrettably, we are unable to address all of appellant’s challenges, because the record before us is not clear as to exactly which statements appellant wished to suppress. As a result, the circuit court did not make specific findings as to each statement or specific rulings on the admissibility of each statement. Nevertheless, we shall address appellant’s claim that his signed waiver of his Miranda8 rights was not knowing and voluntary.
On July 28, 2014, appellant was arrested on an outstanding warrant pertaining to a weapons charge and taken to police headquarters. Detective Massey came to interview appellant, leading to the following conversation:
DETECTIVE [MASSEY]: Okay.
[APPELLANT]: (Indiscernible) - -
DETECTIVE [MASSEY]: I have to read you your rights because you have that open warrant, okay?
[APPELLANT]: What is it for?
DETECTIVE [MASSEY]: I think it was a weapon violation.
[APPELLANT]: A weapon violation?
DETECTIVE [MASSEY]: Yeah.
We’re going to get a copy of it and I’ll bring it in here and let you read it and stuff like that.
But I don’t want to talk to you anything about that; all right?
Like I said, I just want to talk to you about [Grubb]; the last time you saw her and you just indicated some - - running around with some guy on FaceBook [sic]. See what you know about that and (indiscernible)
[APPELLANT]: I don’t know about nothing. I just –
DETECTIVE [MASSEY]: Okay.
[APPELLANT]: She (indiscernible) that she - - I know she’s - - you know.
DETECTIVE [MASSEY]: All right. If you feel that way, I just want the information (indiscernible) - -
[APPELLANT]: But I don’t care.
DETECTIVE [MASSEY]: - - (indiscernible) - -
[APPELLANT]: (Indiscernible) - -
[APPELLANT]: All right.
DETECTIVE [MASSEY]: So, what I’m going to do is I’m going to go over this Miranda form. Again, I’m not going to talk to you anything about that.
Because you’re under arrest, I have to do this.
[APPELLANT]: Yeah.
* * *
[APPELLANT]: But, I mean, I talked - - I talked - - I called [defense counsel] and he told me not to say anything.
DETECTIVE [MASSEY]: Okay. Is that in reference to - - did you know you had a warrant?
[APPELLANT]: No.
DETECTIVE [MASSEY]: Okay. He told you not to say anything about your wife being missing?
[APPELLANT]: About anything. He said; don’t talk. He said not to say nothing.
DETECTIVE [MASSEY]: Okay.
What’s your address?
[APPELLANT]: 1713 [] Road.
* * *
DETECTIVE [MASSEY]: You gave - - you told them you were going to come back and you were going to talk to us.
[APPELLANT]: Yeah.
With that said, you just told me that your lawyer told you not to say nothing about anything.
I’m going to read you your rights. Again, I don’t want to talk to you about what you have a warrant for.
But you indicated to us that you were coming back to talk to us about [Grubb] being missing.
[APPELLANT]: Right.
DETECTIVE [MASSEY]: All right. That decision is yours.
I just have to read you this rights - - these rights, because you have a warrant about something that’s totally unrelated and you’re in our custody; all right?
You have to make that decision if you want to talk to me about [Grubb]; all right?
I just need to - - we’re trying to follow up on the missing person report. That’s all we’re trying to do.
[APPELLANT]: Oh.
DETECTIVE [MASSEY]: All right?
[APPELLANT]: Well, there’s nothing to say. I don’t know anything.
DETECTIVE [MASSEY]: Okay.
Well, I just [have] questions to ask you. If you decide to answer them, you can answer the[m] and, then, we’ll go from there; all right?
You’re the one that indicated to 9-1-1 that you were driving back, at that time, to come up to North Point to talk to us. That’s all I’m saying. All right?
DETECTIVE [MASSEY]: Uh-huh.
[APPELLANT]: - - it flipped me out.
DETECTIVE [MASSEY]: All right.
[APPELLANT]: Then, I saw the phone number and I called and, you know, I said; yeah. I’ll come up and talk to you. And I drove all the way back from the ocean and my truck was black. So, I decided to wash it, you know.
DETECTIVE [MASSEY]: Okay.
[APPELLANT]: And, then, I was going to come - - I was going to take the truck home. I was going to go in and see if she was there and, then, I was going to come over and talk to you.
DETECTIVE [MASSEY]: Okay. I understand all that.
You’re saying you wanted to - - you wanted to talk to us and, what I’m saying is –
[APPELLANT]: Because I wasn’t rushing over there. My son was sleeping –
DETECTIVE [MASSEY]: Yeah, yeah, yeah.
[APPELLANT]: - - in the truck.
DETECTIVE [MASSEY]: I get that.
[APPELLANT]: So (indiscernible) - -
DETECTIVE [MASSEY]: So, let me go through your rights and, then, we’ll talk about all of that, if you decide to; all right?
Number one, you have the absolute right to remain silent. Do you understand that?
[APPELLANT]: Uh-huh.
[APPELLANT]: Yeah.
DETECTIVE [MASSEY]: Okay. What I’m going to have you do is, take this pen and just write “yes” if you understand it. That’s all this is saying. That I read this to you, number one, you have the absolute right to remain silent. And you just write “yes” and your initials, just indicating that you understand that right.
(Pause.)
DETECTIVE [MASSEY]: Number two. Anything you say can and will be used against you in a court of law.
Do you understand that?
(Pause.) [The video depicts appellant writing on the Miranda form during this pause]
DETECTIVE [MASSEY]: Just write in “yes”.
Number three. You have the right to talk with a lawyer at any time before or during any questioning.
Do you understand that?
[APPELLANT]: Uh-huh.
(Pause.)
DETECTIVE [MASSEY]: Okay.
Number four. If you want a lawyer and cannot afford one, you can request the court to appoint a lawyer prior to any questioning.
You understand that?
[APPELLANT]: Uh-huh.
* * *
And this says - - this paragraph says; I have read and understand this explanation of my rights. My decision to waive these rights and to be interviewed is free and voluntary on my part.
(Pause.)
(Emphasis added).
Appellant then signed the Miranda form waiving his rights.
At the suppression hearing held on February 19, 2016, defense counsel argued that appellant’s statements on July 28, 2014, should be suppressed, because his waiver was not valid. At the conclusion of the hearing, the circuit court found that “there was no coercion, no threats, no intimidation, no promises made to the [appellant] for him to sign the Miranda rights waiver[.]” The court further found
that even with [appellant] being brought in on a weapons charge which is one of the cases we have here, he was told right up front on the first day right at the beginning that the detectives were not interested in the weapons charge as such; but they were interested in information about the missing of . . . Grubb. And [appellant] just started talking.
Accordingly, the court denied appellant’s motion to suppress, impliedly concluding that appellant’s Miranda waiver was valid.
On appeal, appellant argues that his statements should have been suppressed, because appellant’s waiver was invalid. In support of this contention, appellant claims that, when Detective Massey was giving appellant his Miranda warnings, Detective Massey implied that the Miranda warnings were only applicable to statements concerning his weapons charge, not statements about Grubb. Appellant contends that as a result, his
Despite appellant’s attempt to frame his argument as one premised on his ability to waive his Miranda rights only as to certain questions, the core of his argument is that appellant was not fully informed of the scope of the questioning that would be conducted by Detective Massey, and therefore, his waiver was invalid.9 This argument has been rejected many times, and we reject it again here.
The Supreme Court has explained:
The Constitution does not require that a criminal suspect know and understand every possible consequence of a waiver of the Fifth Amendment privilege. The Fifth Amendment’s guarantee is both simpler and more fundamental: A defendant may not be compelled to be a witness against himself in any respect. The Miranda warnings protect this privilege by ensuring that a suspect knows that he may choose not to talk to law enforcement officers, to talk only with counsel present, or to discontinue talking at any time. The Miranda warnings ensure that a waiver of these rights is knowing and intelligent by requiring that the suspect be fully advised of this constitutional privilege, including the critical advice that whatever he chooses to say may be used as evidence against him.
* * *
This Court’s holding in Miranda specifically required that the police inform a criminal suspect that he has the right to remain silent and that anything he says may be used against him. There
Colorado v. Spring, 479 U.S. 564, 574, 577 (1987) (italic emphasis in original) (bold emphasis added); see also Alston v. State, 89 Md. App. 178, 184 (1991) (“Officers need not give Miranda warnings each time they question the accused about a different subject within the same interrogation session. . . .[W]hether the appellant knew of all of the subjects about which he was to be questioned is irrelevant to the question of whether his Miranda waiver was made knowingly, intelligently, and voluntarily.”).
Contrary to appellant’s argument, the record reflects that Detective Massey did not expressly or impliedly limit the scope of appellant’s Miranda rights to the weapons charge. Detective Massey repeatedly told appellant that the detectives were not interested in talking to him about the weapons charge; rather they were interested in information about the missing person report on Grubb. Detective Massey also told appellant, at least twice, that the decision to talk about Grubb was his to make, concluding with this statement: “So, let me go through your rights and, then, we’ll talk about all of that, if you decide to; all right?” (emphasis added). Detective Massey then advised appellant of each of his rights under Miranda. He said: “Number one, you have the absolute right to remain silent[;]” “Number two. Anything you say can and will be used against you in a court of law[;]” “Number three. You have the right to talk with a lawyer at any time before or during any
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY REVERSED; CASE REMANDED TO THAT COURT FOR A NEW TRIAL. COSTS TO BE PAID BY BALTIMORE COUNTY.