*1 gener- one conditions applicability but was of broader cases are disabl- may treatment but not themselves ally delay ing. claim, do not read
Contrary we employer’s] [the creating a status special decision as Commissioner’s Instead, a applied workers. Commissioner pregnant temporary a worker policy disqualify not to general from delays disability total because condition benefits condition, disabling but is not treatment for work-related disabling. itself supplied). (emphasis
CONCLUSION of Moore’s foot postponement hold because the We reasonable, tempo- of his payment surgery eminently disability should not have been terminated rary total benefits of that during period postponement. AND REMANDED TO
JUDGMENT REVERSED CASE FUR- FOR COMPENSATION COMMISSION WORKERS’ NOT WITH THER PROCEEDINGS INCONSISTENT OPINION; BE PAID BY APPELLEES. TO THIS COSTS A.2d 557 FREEMAN
Adele Florence v. Maryland.
STATE Term, Sept. 2002. No. Special Appeals Maryland.
Court of
Sept. *5 Harris, William E. Nolan E. on (Stephen Public Defencer brief), Baltimore, for appellant. (J. Curran, Diane E. Keller Joseph Attorney Jr. General on brief), Baltimore, for appellee. MURPHY, C.J., HOLLANDER, Argued before CHARLES MOYLAN, JR., (Retired, E. specially assigned) JJ.
HOLLANDER, Judge. 30, 2000, Kevin Gross was shot to death on March by Freeman, girlfriend, Adele Florence appellant. juryA in the Circuit for County Calvert subsequently convicted Freeman degree murder, of first premeditated as well as first degree assault and use of a firearm the commission of a Thereafter, felony.1 Freeman was sentenced to life imprison- ment, with all but forty-five years suspended, the murder conviction, and to a concurrent term of twenty years for the firearm offense. The assault conviction merged.
On appeal, Freeman claims that “the circuit court err[ed] failing to suppress the statements made ... during [she] custodial interrogation.” brief, From appellant’s glean we two arguments in support First, of her claim. appellant argues the court erred in failing to suppress her statements because she had invoked silent, her to remain therefore her Miranda rights Second, were violated. she claims error on delay based in her presentment ato commis- contentions, sioner. Rejecting both we shall affirm.
I. FACTUAL SUMMARY —SUPPRESSION MOTION2
Appellаnt moved to suppress various statements that gave she to the police during her on interrogation the evening Appellant, disorder, history 1. bipolar who has a claimed at the killing, time of paranoid she schizophrenia. suffered from At a trial, hearing held after the appellant criminally court found respon- sible. single question In view of the posed by appellant, we need not include 2. summary of the evidence January adduced at the trial held in evidence follows is a summary of March 2000. What 2001.3 hearing at the suppression adduced November *6 Maryland testi- of the State Police Albert Patón4 Sergeant at Prince Frederick he the supervisor fied that was the shift 30, 8:00 March At about on the 2000. evening Barrack just “I the barracks and announced: entered p.m., appellant earlier, the that a time recalled short shot someone.” He ... 1255 Wilson for a shooting “had received a call in involved the suspect ... had been Road. And that a female that subject, a black male and she that she had shooting, shot towards the white headed had left the scene in a Oldsmobile Frederick area.” Prince could to appellant’s claimed that reply”
Patón
“before [he]
someone,
have the
shot
“she said I
announcement
that she
Patón continued:
my
it’s here
gun,
purse.”
try
open
that
started to
to
as she is
she
saying
And
wait,
just
will get
you,
I
that from
just
and I told her
purse,
her,
think of a
toway
approach
as I
to
try
as
could
quickly
know,
her to have
my safety.
and
So I asked
maintain
you
barrack.
that comes into the
by
a
over
the door
seat
ruling
suppression
respect
a
3. Our review of
trial court's
hearing.
suppression
solely
record of the
is based
on the
motion
85,
State,
93,
(2003);
A.2d
v.
821
see State
v.
374 Md.
372
Dashiell
State,
706-07,
(2002);
Collins,
700,
v.
Thereafter, Patón of her “Miranda appellant advised rights,”5 reading “word for provided word” from “card” him the Police. State The card was admitted into evidence. Appellant However, indicated she understood her rights. when Patón appellant asked if she would “knowingly waive rights,” these appellant “didn’t say anything.” Patón then gun “retrieved the from [appellant’s] ... purse to make sure it didn’t have any ammunition in it.” He *7 “examined” the weapon and noted “that all the shell casings that could [he] see were Patón empty.” testified:
inSo order so I it, that didn’t [sic] have to I keep handling fired, asked her many how shots she and she said don’t her, well, remember. And then I asked you did fire all the bullets that were in the gun, know, and she I said don’t it happened so fast.
Thereafter, Paton “opened just the chambers to see if there any live ammunition in there.” After Patón determined that no live ammunition was in the gun, he “left everything the was, itway closed it up, back and secured the gun.” Patón then asked appellant “what happened tonight, reply and her ” Twas don’t want to talk about it right now.’ Accordingly, Paton “didn’t ask anything else.” He “got [Freeman] [appel a cup just her, of water and kept lant] an on eye that was it.” Patón appellant’s described demeanor as “normal” аnd “calm.” cross-examination,
On
Patón testified that he sat at the
front desk and greeted people who came in to the barracks.
appellant
door,”
When
“first
in
waled
before she an-
Arizona,
5. See Miranda v.
384 U.S.
86 S.Ct.
[PATON]: this man. just had shot Road that information and upon And so based [PROSECUTOR]: her you placed a gun, she had you she told the fact that arrest? under Yes.
[PATON]: Free- with Ms. you speaking were When [PROSECUTOR]: again with her go over necessary it was you man feel did just turned the event that she date, nature of place, herself for? No, ma’am.
[PATON]: men- asked—when she And when she [PROSECUTOR]: talk want to that she didn’t you she said tioned—when request, honored that now, you scrupulously about it not? you did Yes, I did.
[PATON]: *8 the homi- investigate to assigned was David Ruel Corporal Troop- in the occurred appellant His “first contact” cide. At 9:35, 9:45, in that area.” somewhere at “about ers’ Room bench hand- prison on the time, was “seated Freeman to the bench.” cuffed out” of the room outset, step Patón “to asked
At the Ruel point----” to that up had on gone on what and “brief[] [him] Ruel not want to talk. did appellant him that Patón advised or to eat or drink anything “if she wanted Ms. Freeman asked hungry wasn’t she advised she and anything, if needed she for blood time, pres- some medication” but she did need Delmar to retrieve Corporal Ruel instructed Smith sure. in the was remained gone, appellant medication. Smith While in to Room, just peek “would periodically and Ruel Troopers’ let just in there and everything okay make sure that sit for a [appellant] while.” 10:20 At that p.m. medication arrived at about
Appellant’s time, still in the Troopers’ Ruel asked who was appellant, Room, medication; said no.” again “if she she needed eat, something if she wanted to [appellant] Ruel also “asked from yes, something and that time she said she wanted So, “got McDonald’s.” Ruel her some food.” When food so that p.m., arrived at about 10:52 Ruel removed handcuff However, recalled to appellant “prior could eat. Ruel ... eating” at about 10:55 he “read” her p.m., appellant form, Miranda from the “sat rights they and then down eat, was, ... just job and talked about her what her family, ” what her . .. aspirations explained: were. Ruel
I the form in its entirety. completing read Then after here, last last if paragraph asking sentence her she is talk, willing sign I have her the statement that [sic] her, where it I signature said and then have her review just it again to make sure that she understands and place one, two, three, four, five, her initials by each of her if rights she understands them. Ruel,
According during appellant his advisement did not request Moreover, nor she lawyer, any questions. did have her demeanor was “very cooperative.” calm and Appellant, old, forty-seven years who was then had no difficulty under- what standing Although Ruel said. Ruel did not ascertain level, articulate”, appellant’s educational he found her “very school,” “figured and he she had at least graduated high because she “had mentioned earlier in conversation [their] planned going college.” she had on
Appellant to waive her agreed rights, question initialed each form, in the waiver signed it. Ruel denied threatening or her appellant promising anything induce her to do so. *9 statement, she she told Ruel that appellant provided Before ate, made an After Freeman she “bipolar.” as diagnosed Ruel, recounted: which he oral statement advise Ms. Freeman went on to finishing After her dinner on had with Mr. Gross evening spoken earlier that she During phone the conversa- for a few minutеs. phone the if could just asked him she never She they argued. tion evening A little later that same replied yes. and he stop by, house. At approximately herself over to Gross’s she drove in the drive- parked into and Gross’s pulled 1930 hours she her car. never out of way got and in the passen- out of the house and sat then came Gross in the car talking The two sat side front seat. ger she weekend. Freeman advised upcoming about the while take her out to because Gross wouldn’t upset was kind of then confronted Saturday. this She dinner or the movies that he hadn’t taken her few weekends past him about the her thing asking that dinner without and how he went to out if to go. she wanted Saturday this her couldn’t take her out then told he
Gross the oil in his car. Ms. Freeman change he had to because him it him that wouldn’t again, advising confronted then oil in his car. He then change him all day take he would up, try had to tune his car but advised her he also Freeman then car a little earlier. working on his start and an oil weren’t tune-up change that a knowing advised out from gun and her thing got upset pulled same she seat. under the driver’s side door car the driver’s side through then out of the got She it at left hand she Gross pointed in her gun and with of the front passen- then climbed out and shot him. Gross got Freeman then ground. fell to the side door and ger him on the and shot ground in the car as Gross laid back on the front put gun more times. then two She door, drove to seat, side passenger closed passenger the barracks she put she arrived at the barracks. When ... them lobby, into the and told in her walked gun purse, she had done. what gun why where she got
I then asked Freeman *10 it, night. that She why had or she had it her she in Way- from bought gun that she the somewhere advised recall the exact a but couldn’t ago, son’s Corner while she normally keeps further advised that she date. Freeman when she protection under her front seat of her car gun against if knew it was at I asked Freeman she night. drives had a permit law to in her car unless she keep gun this and that she carry it. She advised that she knew to but she hadn’t hаd permit, had been for a meaning apply time. me what caused this 1 then Freeman to explain asked she it. She why so I could better understand did happen for her to remember what me that it was hard advised fast, she doesn’t because it all so happened happened hit know did it. I then asked her if Gross had her why she her, provoked called kind of name that have any may or her advised, no, very very and she Kevin was a nice—Kevin was nice and never hit me. 1 then asked Freeman about the statement witness
Charles advised he had heard. She advised that she Gross I saying doesn’t remember that. then confronted Freeman her, cheating with the that on possibility Gross was advised, no, again very she Kevin was nice.... [TJhat’s basically point. all she advised that statement, Upon completion appel- of her oral Ruel asked if would a or provide taped lant she written statement. Free- Therefore, declined to do so and requested lawyer. man questioning [appellant] Ruel “ended and re-secured [his] Ruel prisoner any questioning bench.” denied oc- an requested attorney. According curred after Freeman brother, Gross, 6. Charles Kevin Gross’s was a witness at trial. On 14, 2002, January appellant say: ‘‘[Yloii he testified that he heard bastard, you, you worry doing anybody don’t have to about this to else.” Ruel, hour, and ten conversation was about an hour “the whole minutes.” her oral statement at around
Although appellant completed before a until she was not taken Commissioner midnight, time, morning. During o’clock the next eight about however, Ruel was questioned. questioned appellant delay. following colloquy perti- about the The generally nent: And did there come a time that
[PROSECUTOR]: was taken before Commissioner? [appellant] Yes. [RUEL]: when was that? And
[PROSECUTOR]: eight morning. That was about o’clock next [RUEL]: *11 delay was there a brief there? Why [PROSECUTOR]: Basically completion paperwork, for the [RUEL]: and also fingerprint, photograph, of the actual processing following wasn’t in until coming the Commissioner morning. “Where
Defense counsel asked Ruel: is the Commissioner’s where the interview was in location to the barracks Office that the Office responded conducted?” Ruel Commissioner’s yards Although 200 to 300 behind the barrack. is situated on call 24 “basically Ruel conceded that the Commissioner is and “could have been available all hours day,” hours a out,” just I had to call him he claimed that “at the time night, point- it would have been completed, wasn’t so paperwork call the out.” less to Commissioner counsel addressed the matter of appellant’s In argument, and waiver rights, stating, part: the advisement ... Sergeant After her Miranda were read Patón rights seven, do you to which is response question did not receive the defense’s conten- point waive these At it’s rights. her to remain silent. clearly invoking right tion that she was Patón any rights. Sergeant hadn’t waived of her Yet She many of her as to how shots inquisitions continued to make nature, bullets, fired, fire all the of that you things were did those, to which responded. Ms. Freeman I think although her, her rights had been read to she had clearly voluntarily, freely voluntarily and waived knowingly her rights because there was response Sergeant no to Paton’s last on his question card list that he had read Ms. Freeman. So I think those clearly suppressed. should be
At the end of her Sergeant discussions with Patón what she indicated is I clearly do not want to talk it about right now. Yet knowing Trooper Ruel back goes two later, hours begins to re-Mirandize her and begins ques- tion her. She has made no at that to re- attempt point initiate questioning. She has made no indication to the officers that she wants to talk about the They case. have her gotten food and other things, but she had made no silent, initiation to give up her to remain which she had indicated my analysis twice of the case.
First of all when she indicated that she did not knowingly waive her she rights Sergeant Patón her invoking right to remain silent. And clearly she said I don’t want to now, talk about it right which she is invoking means her remain silent. Both those times she is it making clear to ... officers that she did not want to speak them about this case at all. Yet Ruel Trooper went ahead and initiated contact and re-advised her of her rights, and at that point in time took what I believe to be an illegal statement from Ms. Freeman.
With respect to the issue of in delay presentment, defense argued: counsel you look at
[I]f the fact that they right violated her to silent, remain you also have to look they at the that fact in delayed presenting her to a Commissioner. Trooper Ruel has told the Court that a Commissioner is on call 24 day, hours a days seven a week.
Now, there is clear case law that that says delay for the of a purposes obtaining confession where followed by pres- entment to the police continuing interrogation must be excluded on the law common of principles voluntariness. to delay presentment have ruled that the Commis-
Courts se, exclude the necessarily per sioner doesn’t statement which the rule at point. one
[*] 4: * brief, if be it was was necessi- [Djelay would reasonable delays such as unavoidable by request tated reasonable [sic] non-availability or handling, booking, involving transporting, have that any of We don’t of here.... magistrates. [A]n of additional delay purposes gathering unreasonable for ill-will justify delay to arrest or motivated or evidence delay cannot be allowed. sake
4: 4i [*] county they In clear if had pretty this situation in this it’s already ten when she magistrate called for a o’clock had silence, they to have her invoked her could taken until the next Waiting front of the Commissioner. 8:15 take of doesn’t to her in front the Commissioner morning delay just I think for the make sense. And it’s any all, or to a statement from her purpose trying get first they if in front gather get additional evidence. Because statement, think obviously that of Commissioner without hold cause probable have her for may enough [sic] it a much cleaner case. purposes, but statement makes The that silence alone does not amount responded State also of one’s under Miranda. The State rights the invocation statement, talk it right claimed “I don’t want to about now,” mean want to talk ever.” you did not “I don’t that, “in the Moreover, argued context prosecutor re-initiate interrogation questioning custodial can matter after an invocation of subject the same regarding her questioning if promptly stop first they silence invocation, The happened which is what here.” after the pass some time to noted the officers allowed prosecutor questioning appellant then re-advised re-initiating before rights. her of Miranda *13 as a “blurt”
Characterizing appellant’s announcement when just someone, she walked into the barrack that she shot court denied motion suppress that statement. Howev- er, the court suppressed appellant’s statement that she used shoot, her “left hand” to “I think stating: the State has conceded that the answer to the question about which hand did you gun use to shoot the should be suppressed. The State has agreed with that and I with that also.” agree
As to appellant’s silence when Patón initially asked her if she would waive her rights, the court said: “I also agree that her mere failure to question answer the second ... her silence there was not an indication that lawyer. she wanted a It was just simply silence.” The court not did comment on whether the silence amounted to an invocation of the to remain silent. regard Patón, to appellant’s
With statement to “I don’t want now,” to talk about it right the court said: That is not a saying statement I want to no make further statements, I want my to see I lawyer, don’t want to say anything. That’s totally different than I don’t think any further statements need to be initiated defendant.
Then we have Ruel Corporal speaking to her. gave He rights. her her Those have been shown as State’s Exhibit 3. He testified that he read them to her. signed She form. Then he had her initial everything. His is testimony clear thought that he that she competent, that she was able to make statements. I don’t think it she was—when said she needed her medication high pressure, blood I don’t think it was his burden to make further inquires when he found out there was other medication. Just because she is bipolar doesn’t necessarily mean she is capable answering those questions at that time. factors,
Looking at all the woman, she is a mature she age yes, she has no prior record, criminal but she is also *14 into or forced that can be intimidated a youngster that The court finds she—that statements.
making her, totally volun- those answers were questioning State’s the statement when completed she had It was after tary. that recorded or written tape if it could be she was asked and invoked her further statement any to make she declined attorney.- have an right to the court said: in delay presentment, to the regard
With is unreasonable. Obvi- amount of time I don’t think the was an There processed. needs to be paperwork ously with the o’clock, o’clock discussion eight eight approximately Corpo- a half later about an hour and Then sergeant. desk her, her medicine. talked about in to talk to ral Ruel went in to to her. speak he went back came the medicine When food, was some food. She got her some he offered Then that during It was unhandcuffed, to eat dinner. allowed taking place these discussions were of time that period the statements. she made here I don’t of the circumstances totality
So under I think the evidence. to any suppress there is reason find freely totally voluntarily made were that the statements rights. of her Constitutional been advised having made after in additional facts our discussion. shall include We
II. Discussion Right to Remain Silent A. The of her appellant that he advised trial, Paton testified At Paton’s direct In any questions. not have and she did rights, to about inquiry appellant to his he did not refer testimony, or her silence rights, waive her willing was whether she that, However, after he stated inquiry.7 to the response tonight....” advisement, happened “what appellant, he asked cross-examination, counsel, from who elicited on It was defense closing In after the advisement. appellant “remained silent” Patón that sup- appellant's referred to silence argument, counsel also defense appellant’s statements. argument to the involuntariness port her as objection, defense Patón testified as to appellant’s reply: Over “I right don’t want to talk about it now.” suppression contends court erred Appellant Fifth finding she did not invoke her Amendment privilege by remaining willing mute when Patou asked her if she was Moreover, rights. waive her she insists because her silent, silence was an invocation of her to remain “all questioning required cease.” Freeman Consequently, statement, asserts that her “I don’t want talk about it (which now,” four), designates she as statement and her oral (which five), confession to Ruel she designates as statement Miranda,” were admitted at trial in violation of “erroneously *15 because both were after she her right obtained invoked to silence. silence, regard appellant’s
With to the State maintains that “mere appellant’s question” failure to answer a waiver not did Indeed, an constitute invocation of the to remain silent. right the State contends that it was from the apparent context that Freeman did not invoke her right to remain silent: she voluntarily “came to the police station to turn herself someone, announced that she had shot thereby plainly indicat- to ing police willingness her accept for the responsibility crime.” that, best,
The
argues
State
appellant’s silence was an
ambiguous
Therefore,
invocation.
it urges us to
apply
States,
rationale
of Davis v. United
512 U.S.
114 S.Ct.
(1994).
‘right It claims that four as statement. terization statement be a ‘statement’ four not even considered “should statement rather, Miranda; it is an itself assertion for purposes State, assertion, says “simply That to silence.” right to silence did waive her [appellant] made clear four “should not be deemed a ...,” and thus statement Miranda.”9 The subject under suppression ‘statement’ adds: State comment, designates which she as
Because Freeman’s 4,” conjunction understood in her fairly “statement as of her Fifth Amendment silence an assertion earlier silence, there need for this to address is no silence, more, constitute an her mere -without would whether of the right. invocation Ruel, the State maintains regard the confession
With invocation honored” the ex- police “scrupulously four, talk about it right in statement “I don’t want to pressed Therefore, court properly contends that the the State now.” to Ruel. appellant’s admitted confession discussion, summarize, chronological in our we clarity For identified order, the various statements and conduct custodial court’s along rulings: with the by appellant, 1: No. The court ruled just “I shot someone.” Statement *16 and was therefore admissible. that it constituted a “blurt” testimony in evidence of through It was introduced ruling. not contest this Appellant Patón. does No. of 2: Before was advised her Statement appellant hand to shoot the which she used she asked rights, “left.” conceded that responded, She The State victim. Miranda, ruled and the court that this statement violated Therefore, not it is in inadmissible. the statement was issue. any supports not case that its contention we The State has cited they together, if analyze statement four as were the silence and should response. one Patón advised of her and then appellant rights,
Conduct rights. Appellant asked her whether she would waive her remained silent. The court ruled that the silence was counsel, an appellant invocation of the and contests the court’s finding.
Statement(s) many No. 3: Patón asked how shots appellant fired, she and she “I responded, don’t remember.” Patón her, you then asked “Did fire all bullets that were know, gun?” Appellant “I don’t it so replied, happened trial, fast.” statements were These not introduced at thus are not in issue. asked,
Statement No. Patón checked the and then gun U: “What happened tonight?” “I don’t Appellant responded, want to talk about it now.” The court ruled this statement, made to Patón after appellant had been advised of her rights, was neither an invocation of the right silence nor an invocation the right to counsel. The court statement, denied appellant’s challenge and the State introduced it at trial through testimony Sergeant Patón. Appellant challenges the admission of the state- ment. said,
Statement No. 5: A few hours after “I appellant don’t now,” want to talk about it right Corporel Ruel re-advised appellant of her rights, appellant gave an oral state- ment, recounting the events of March 2000. The court denied appellant’s statement, motion to this suppress and it was introduced at trial through the testimony of Corporal Ruel. Appellant disputes the court’s ruling. State,
Unlike the
appellant focuses separately on her initial
silence
response
Paton’s waiver inquiry,
claiming
alone,
standing
it constituted an invocation of her Miranda
As
rights.
observed, “[sjilence
the Supreme Court has
in the
wake of
warnings may
[Miranda ]
be nothing more than the
arrestee’s exercise Thus,
these Miranda rights.
every
”
post-arrest
silence is insolubly ambiguous....
Doyle v.
Ohio,
610, 617,
U.S.
(1976);
96 S.Ct.
As silence appellant’s to its contention that support S.Ct. to regard that the were not ambiguous required was so In the an invocation the to remain silent. State’s right it as of the Davis view, for an assertion of “requirement” unequivocal “with to an invocation equal to counsel force right applies the silence, the need rule bright-line to where for a right of the compelling.” equally Davis, questioned Naval Investigative agents
In
Service
454, 114
Id. at
After
2350.
the
Davis about a murder.
S.Ct.
law,
rights
military
of his
under
Davis
advised Davis
agents
Id. at
454-55,
Davis moved of right to honor his invocation interrogators the failed denied, and was convicted of The motion was Davis counsel. review, Id. On Supreme sought craft murder. be officers “applied by line” rule that could bright “a without unduly world of investigation interrogation real 461, 114 of information.” S.Ct. gathering hampering of the to counsel Insisting right the invocation clarity, Court said: Supreme be articulated must at a Miranda “requires, counsel Invocation be minimum, reasonably that can construed some statement of an a desire for the assistance expression to be an to an makes attor- attorney.” suspect But if a reference or in that reasonable equivocal that is ney ambiguous circumstances would have understood light officer in counsel, suspect might be invoking that the only require questioning. do not cessation precedents our
423
Rather,
suspect,
unambiguously request
must
counsel.
observed,
As we have
“a statement either is such an asser-
tion of the
to counsel or it is not.”
right
(citations
added).
omitted)(Emphasis
Id. at
S.Ct.
to
a rule
Although
Supreme
adopt
Court “declined
requiring
clarifying
officers to ask
when faced with
questions”
assertion,
ambiguous
an
it
that “it will often be
suggested
good practice
interviewing
clarify
for the
officers to
whether
or not
suspect] actually
attorney....”
wants an
Id. at
[the
461,
Freeman
that
jurisdictions
concedes
some
“do not recognize
silent,
silence as an invocation” of the right to remain
because
of
In
ambiguity.
jurisdictions,
its
those
says appellant, “one’s
silence must
prefaced
be
with an
unequivocal statement
he or she is invoking his or her right
to remain silent.”
However, she maintains that
line of reasoning”
“[t]his
derives
erroneously from the view “that the standard set forth for
counsel,”
one’s
invoking
Davis,
to
articulated in
512 U.S.
equally
S.Ct.
“is
applicable to the invocation of
silence.”
to
According
appellant,
United States Su-
“[t]he
preme Court
... has yet to determine whether the Davis
invocation of counsel
standard
in anyway
appropriate to
[sic]
the invocation
Moreover,
of silence.”
she
out
points
that “[a]t
jurisdictions
least six
have ruled that a Daws-like standard is
inappropriate to invocations of silence.” With one exception,
we
persuaded
are not
to adopt Freeman’s position based on
the six foreign cases cited support
her to
her claim that a
Davis-like standard is inappropriate to invocations of silence.10
(2nd
Montana,
Appellant
cites United States v.
Nevertheless,
Davis rationale
appellant
we
agree
silence,
analysis
appellant’s
but for
apply
does not
by appellant.
reasons
advanced
Davis
whether
rationale of
party
Neithеr
has discussed
a waiver
prior
to an
invocation made
applies
ambiguous
In our
whether
view,
determining
apply the
rights.
Davis,
significant
alleged
rationale of
it is
that appellant’s
a waiver
prior
of her
occurred
invocation
silence
Davis,
ensued;
and before
unlike in
it
rights,
interrogation
*19
30,
(1997),
ambiguous
N.J.
695
which involved an
150
A.2d 1301
counsel,
right
right
to
not the
to silence. The
invocation
that,
acknowledged
Jersey
"in
circum-
Supreme Court of New
some
stances,”
right
greater protection of the
Jersey
New
law "affords
against
fore,
federal law.” Id. at 1316. There-
self-incrimination than does
"precedent.”
prudent
apply”
continue
its
it considered "it
to
to
Id. at 1318.
(1994),
Similarly,
Hoey, Hawai'i
P.2d
in State v.
881
504
cited
by appellant,
Supreme
the
of Hawaii
error in the admis
Court
found
confession,
it
of the defendant's
but
relied on Hawaii’s Constitu
sion
tion,
523-24,
protection ...
id. at
afford
citizens broader
than
Tits]
"to
by
majority
recognized
under the United States Constitu
that
the Davis
Virginia
tion. ..."
Id. at 523.
does the decision of the West
court
Nor
(1994),
Farley,
support
v.
Davis
ambiguous
involved an
invocation of the right
counsel that occurred during interrogation, and
after
defendant had already waived his rights;
validity
Davis’s Miranda waiver was not in issue.
It was in that
context, where the suspect
already
had
waived his Miranda
rights and later arguably sought
mind,
to change his
that the
Supreme Court ruled
clearly
defendant must
articulate
his request for
counsel
order to invoke that light. Signifi-
cantly,
said,
the Supreme
Numerous
right
of the
the rationale of Davis
ambiguous
to an
invocation
ambiguous
as with an
silence,
have concluded
to
and
counsel,
an
invocation
equivocal
the
to
right
invocation of
the
Most
police.
honored
need
be
right
silence
ineffective at-
cases, however, involve a defendant’s
of these
rights
his or her constitutional
to invoke
tempt
after
Miranda
In this
rights.
waived
previously
had
defendant
preceded
silence
case,
noteworthy
appellant’s
it is
rights.
waiver
(11th Cir.1994), cert.
Singletary,
v.
In Coleman (1995), denied, 131 L.Ed.2d 115 S.Ct. 514 U.S. that the defen determined the Eleventh Circuit example, privilege Fifth Amendment of his invocation alleged dant’s ” Davis, Id. at 1423. on Relying insufficiently clear.... “was apply the same rule should “that it then concluded to cut right references to the or ambiguous equivocal suspect’s Id. at 1424. It to the to counsel.” right as questioning off “bright of a creation supported that the concern that reasoned “applies counsel in Davis with right to the respect line rule” to remain to the invocation force equal with silent____” Thus, applies Daws rule Id. it held “that the ” “If .... said: and to remain silent invocations of have no ... equivocal or ambiguous statement is intent, they may proceed duty clarify suspect’s vague the defendant’s Significantly, interrogation.” had he during interrogation, invocation occurred after *21 rights. to waive his agreed
427
Williams,
(Minn.1995),
Similarly, in State v.
See (Fla.1997) also Florida v. 696 So.2d 717-18 (agreeing “that Davis applies as much to requests to termi nate interrogation as it counsel”; does to requests for reason ing that “requests because for counsel have been accorded judicial greater deference than requests terminate interro gation,” the rationale of “applies Davis when a defendant makes an equivocal assertion of any right ”; under Miranda and holding that police are not required to an clarify ambigu ous invocation of silence), denied, cert. 522 U.S. (1997); Cohen, S.Ct. 139 L.Ed.2d People v. (1996) A.D.2d 640 N.Y.S.2d (rejecting argu ment after waiver of rights, defendant invoked his to silence during interrogation mute for remaining fifteen minutes; conduct was ambiguous and reasonable officer would
428 to silent right
not have understood it as assertion of
remain
minutes),
after
to
for 30
rav’d
other
responding
questions
on
632,
30,
1313
90 N.Y.2d
665 N.Y.S.2d
687 N.E.2d
grounds,
(1997);
State,
244,
(Tex.Crim.App.
v.
931 S.W.2d
257
Dowthitt
1996)
questioning
that
need
his
(stating
stop
“officer
not
rights
unambiguous,
unless
of
and
suspect’s
the
invocation
remarks”);
the
not
to
required
clarify ambiguous
officer is
(1995)
262,
112, 115-16
462
Virginia, 250 Va.
S.E.2d
Midkiff v.
during
suspect’s
interrogation,
statements
(concluding
case,”
about
did not
expressing
discussing
“reservations
silent;
to remain
unequivocal
right
amount to an
invocation of
therefore,
required
were not
to cease
interrogation);
(1995)
Bacon,
279,
54,
(holding
65
v.
163
658 A.2d
Vermont
Vt.
to a
“applies equally”
rationale of Davis
defendant
his
and later
invokes the
rights
“ambiguously
who has waived
denied,
...
cert.
during
interrogation”),
to remain silent
right
(1995).
837,
117,
see
116 S.Ct.
We are
State
persuaded
(Utah 1997),
distinguishes
which
between
Leyva,
Noting ....”, er said that “Davis made clear scenarios Utah court that its to a to reinvoke holding applied only suspect’s attempt rights knowing voluntary his Miranda waiver’ ‘after Davis, (quoting same.” U.S. S.Ct. 2350). Therefore, the Utah court concluded that an officer *23 ambiguous faced with an to an initial advisement of response i.e., at the rights, pre-waiver stage, Miranda is limited to to posing questions designed clarify suspect’s ambiguous Tuttle, 20, response. Id. Accord v. 650 N.W.2d 28 State (S.D.2002) Leyva, and (adopting concluding that Davis “[t]he holding obviously to instances where applies suspects attempt to rights invoke Miranda after a knowing voluntary Davis, sum, waiver of those rights. applies to an equivocal postwaiver invocation of rights.”). agree
We with the Utah court that a careful reading of Davis rule, reveals that the Supreme bright Court’s line requiring counsel, an unequivocal right assertion of the pertains to a situation in which the defendant had previously then, right waived his during interrogation, arguably sought rights. exercise Based on the we foregoing, decline to apply the rationale of Davis to our of analysis silence, appellant’s because the silence occurred in pre a waiver context.
Next, we consider whether the court erred in failing to
recognize appellant’s silence as an invocation.
In
of
support
claim
appellant’s
that her silence
separate
constituted a
invo
cation, from
flow,”
which “no legal penalty can
she relies on
State,
233,
(1974),
Younie v.
272 Md.
322
211
A.2d
and Crosby
State,
518,
v.
366
(2001),
denied,
Md.
questions Nevertheless, signed he 236-38, at 322 A.2d Id. handwritten officer’s interrogating of the page bottom of each trial, 211. At at 322 A.2d the interview. Id. statement handwritten the officer’s the court admitted objection, over interview, fifteen out in which Younie answered record 236-38, 211. Dur A.2d Id. at twenty-three questions. to refer allowed the State was closing argument, ing at Id. questions. to all of the respond Younie’s refusals A.2d 211. a per- that “his silence was complained Younie appeal, On and there- privilege”, exercise of his [constitutional] missible the record in evidence not have admitted the court should fore Appeals agreed. The Id. refusals to answer. of his silent the defendant remained It that evidence held that his failure inference prejudicial the highly “creat[ed] Id. In the Court’s by guilt....” motivated was respond from inference to be drawn view, reasonable only to exercise his that Younie elected to answer refusals silent, jury improp- might but to remain constitutional a tacit admission. his silence as erly regard expressly ... Constitution said: “[T]he A.2d 211. The Court *24 made and not have this remain mute suspect] permits [a Further, it stated: Id. jury].” known [the inquisition presumed custodial context of a in the Silence against the self-incrimination privilege to be an exercise flow, the the has can and State penalty no legal from which convincing by clear and demonstrating burden of heavy not an invocation respond was evidence that failure right. this added). (Emphasis
Id. 1, noted, n. here, at 238 also id. the Court significance Of A.2d 211: 322 only answer he would Younie indicated when
Arguably,
to answer”
when he “refused
the
or
questions,
“some”
to talk about
did not want
he
he
or when
said
others
been
homicide,
have
interrogation
should
robbery
armed
431
Arizona,
436,
terminated
v.
384
according Miranda
U.S.
473-474,
(1966).
1602,
In
86
(Emphasis Younie underscores inadmissibility of a defendant’s case, In silence. this did State not introduce evidence of But, appellant’s suggests silence. Younie also that the State must establish clear by convincing evidence that respond failure to was not an invocation. 518, 1102,
Appellant’s reliance on
366 Md.
784 A.2d
Crosby,
There,
is misplaced.
the defendant “was not silent in respond-
” Instead,
ing
particular question....
to a
he
put
refused to
writing
already
into
that which he had
said.
at
A.2d 1102. The Court cоnsidered whether
refusal
amounted to an invocation of the privilege against self-incrimi-
and,
so,
nation
if
testimony
whether
concerning such
trial,
invocation was improperly permitted at
and thus “im-
pinged” the defendant’s
“constitutional
to remain silent.”
529-30,
said,
Id. at
The protections upon bestowed citizens privilege against self-incrimination do not once the disappear accused his or initially rights. waives her An accused may invoke his or rights her time any during questioning, or simply any asked, refuse to answer question and this silence cannot Ohio, be used him against or her. See v. Doyle U.S. 610, 617, (1976)(stat 96 S.Ct. 49 L.Ed.2d ing in the wake of warnings may “[s]ilence [Miranda ] *25 be nothing more than the arrestee’s exercise of these Mi State, rights”); 244-45, randa Younie v. 272 Md. at 322 A.2d at 217 (1974)(stating that in the context “[s]ilence of a
432 to be an exercise of inquisition presumed
custodial is pen- which no legal from self-incrimination privilege against that the petitioner’s ...” “we must assume can flow alty of his fifth amendment an invocation failure to answer was privilege”). did not that the defendant concluded Crosby
The
Court
provide
to
by refusing
remain silent
right
his
to
exercise
Rather,
an oral statement.
gave
after he
written statement
“
existing
his
state-
writing
reduce to
declined
‘to
simply
he
530,
1102
at
784 A.2d
Id.
rights....’”
and waiver of
ment
re-
omitted).
“the
to
(citation
right
that
recognizing
While
in order to
construed
liberally
been
always
main
‘has
silent
8,
....’”,
at
n.
784
immunity
id.
527
to this
fullest effect
give
(citations omitted),
“to extend
the Court declined
A.2d 1102
530,
at
784
extreme.” Id.
illogical
to an
application
Miranda’s
1, 18-19,
Md.App.
v.
129
Purvey,
A.2d 1102. See also State
(1999)
declined to
that defendant who
(noting
Similarly, Dupree because the (1998), a murder conviction reversed
433
testified,
objection,
officer
over
defense
the defen-
dant, having
rights,
been advised of his
did not
provide
316,
statement
to the
Id. at
Most
in
v.
recently, Kosh
382 Md.
The tenor of foregoing cases leads us to conclude that the court below erred failing appellant’s construe pre- waiver silence as an invocation of her to remain silent. Although the police sought could have to clarify whether appellant intended her silence as an invocation of her rights, with questions limited to effort to Patón clarify, should not have ignored the silence asking appellant “what happened.” It follows that Freeman’s response to that “I inquiry, don’t now,” want to talk about it was erroneously admitted. 434 satisfied,
Nevertheless, beyond a reasonable we are case, error was harm doubt, that, any of this in the context 638, 659, State, A.2d 665 276 Md. 350 Dorsey v. less. See State, 91, 131, A.2d Md. 786 (1976); v. 367 see also Borchardt 2309, 152 denied, 122 (2001), 535 U.S. S.Ct. cert. State, 508- (2002); Md.App. v. Hudson L.Ed.2d denied, A.2d 928 378 Md. cert. 832 A.2d (2003). explain. We *27 statement, right to talk about it
First,
“I don’t want
tacit
context,
be
as a
now,”
regarded
or in
cannot
taken alone
evidence showed
undisputed
The
guilt.
admission
station of her own accord
came to the police
appellant
someone.
In
that she had shot
immediately announced
(statement
four)
“fairly
statement
subsequent
her
light,
Hudson,
509,
Mosley was arrested
Mosley
invoked his
rights,
of his
After he was advised
silent,
remain
and the
the interro-
“promptly
detective
ceased
gаtion.” Mosley,
U.S. at
In his suppression
Mosley claimed
under Mi-
randa, “it
constitutionally impermissible”
was
for the
him
question
about the murder because he had previously
asserted that “he did not want to
any questions
answer
about
98-99,
the robberies.” Id. at
A review of the leading Mosley’s circumstances confes- sion reveals that his “right to cut off questioning” fully respected this Before interrogation, case. his initial *28 was Mosley carefully advised that he was under no obli- gation to answer any questions and could remain silent if he orally wished. He acknowledged that he understood the warnings Miranda and then signed printed a notification-of- form. rights Mosley When stated that he did want to robberies, discuss the Detective immediately Cowie ceased interrogation the not try and did either to resume the questioning any or in toway persuade Mosley reconsider position. his After an interval hours, of more than two was Mosley questioned by another police officer at another location about an unrelated holdup murder. He was given full complete and Miranda at warnings the outset of the second interrogation. He was thus again reminded that he could remain silent and could consult with lawyer, a and was carefully given a full and fair to exercise opportunity these options. subsequent The questioning did not undercut Mos- ley’s previous decision not to answer Detective Cowie’s interrogation not resume the Hill did Detective
inquiries. about robbery inquire or Tower Restaurant the about White exclusively focused robbery, but instead Bar the Blue Goose homicide, in nature a crime different Leroy on the Williams the robberies occurrence from of place and in time and by Detec- interrogated had been arrested Mosley which how the record it not clear from Although tive Cowie. interrogation, the earlier about Detective Hill knew much his unrelated homicide about an Mosley questioning Mosley’s interpretation a reasonable quite consistent the robberies. about any questions to answer earlier refusal circumstances, police the that, under certain Recognizing despite a suspect interrogate attempt an may re-initiate said, silence, Mosley Court of the invocation prior 105-06, 321: 96 S.Ct. id. to honor failed ... where
This is not a case either questioning, in to cut off custody person of a decision or interrogation upon request refusing to discontinue his resistance to wear down efforts repeated by persisting prac- to such mind. In contrast change him and make interrogation, ceased the tices, immediately here the police of a passage significant only after questioning resumed warnings, of a fresh set of and the provision of time period had to a crime that interrogation the second and restricted interrogation. subject of the earlier not been a Nevertheless, underscored Court Supreme statement, the invoca- made after accused’s of an admissibility part on depends privilege, Amendment tion of his Fifth honored” the accused’s “scrupulously the police whether explained: It to remain silent. of the Miranda interpretation faithful
A reasonable in that case the intention must rest on opinion notify person ... effective means “fully to adopt *29 that the exercise and to assure of silence his [Miranda,] 384 honored....” scrupulously be right will [; safeguard The critical U.S., at 1630]. 86 S.Ct. at to cut “right is a person’s at issue passage in the identified Id., off at 474 questioning.” Through [86 S.Ct. 1627]. the exercise of his hе can option questioning terminate occurs, control subjects the time at which questioning discussed, interrogation. duration of the The re- quirement that law enforcement authorities must respect a person’s option exercise of that counteracts the coercive of the custodial pressures setting. We therefore conclude that admissibility of statements obtained after the per- son in has to remain silent custody depends decided under Miranda, on whether his to cut off “right questioning” was “scrupulously honored.” (footnote omitted). 103-04,
Mosley,
U.S. at
Appellant here, maintains that Mosley inapplicable be- police cause “the did not honor’ ‘scrupulously appellant’s invo- cation of her right to remain silent.” complains She Patón “continued to question appellant even though she re- fused to waive her rights by Miranda remaining silent.” Freeman asserts police reinitiate may questioning “(1) if: only significant wait a period of time (per (2) hours); at least Mosley, two provide the with a suspect fresh set of Miranda warnings, obtain second Miranda (3) waiver; restrict the second interrogation to crimes not invocation; and, (4) discussed prior to the original conduct interrogation a different location with different interrogat- ing officers.” Appellant adds: “[A]lthough interrogation officer, conducted a different approximately two hours
438 of her Mi- a second time
later, warning appellаnt and upon in the same was conducted randa interrogation rights —the Further, matter.” subject same the and concerned location honored scrupulously Patton had Sgt. “Even if contends: she silence, comply did not Ruel Corporal invocation appellant’s interrogation the holding Mosley by conducting the with matter.” We subject and about the same location the same analysis. appellant’s disagree (1981), State, 586, A.2d 1234 433 v. Md.App. 49 Latimer invocation, that, an if silence was appellant’s even establishes After Latimer barred. was not forever questioning further Miranda rights. arrested, advised him of his the police was to waive Because Latimer declined 587, A.2d 1234. Id. at 433 However, Id. him. question did not rights, police his Latimer, from -writing sample sought later police when the occasion, he agreed rights his on this advised of again he was 588, Id. at 433 a statement. gave and then rights to waive Arizona, v. 451 U.S. on Edwards supra, Relying A.2d 1234. 378, that his 1880, argued Latimer L.Ed.2d 101 68 S.Ct. availed initially had because he was inadmissible statement silent, make an and he did not remain right of the himself that Edwards was Id. This Court opined to police. overture valid waiver of the with a specifically “concerned to remain specific request encompass and does not counsel said, id.: Id. The silent.” to remain has chosen where the defendant the situation [I]n more, indicated a belief necessarily has not he silent without in need of an for and is himself speak that he is unable to for the Instead, to remain silent he has chosen attorney. all not, destroy opinion, our that choice should present; defendant make a prelude nor of communication lines questioning. further necessary before absolutely 96, 96 46 Mosley, v. 423 S.Ct. by Michigan U.S. Guided of more an interval that: “there was we noted L.Ed.2d another “by questioned Latimer was hours” before than two Latimer, Md.App. at another location.” officer “Although questioning A.2d 1234. We said: as was subject matter the same included apparently resulted initial purpose at the first attempted interrogation, hаndwriting exem- inquiry second extraction Moreover, we that Miranda “does not plars.” recognized of all further after per proscription interrogation” create se has invoked his to silence. Id. at suspect A.2d 1234.
The
cases for the proposition
Court cited numerous
*31
silent,
must
upon
police
an invocation of the
to remain
their
in
the defendant that
interrogation
“notify
cease
order
a
questioning
give
all he needs to do to foreclose or halt
is
if will submit thereto.” Id.
negative response when asked
he
591,
at
In that message imperative order to communicate this it for of time. this interrogation stop period By some stoppage the defendant is made aware that he need answer questions no further either then or later unless he so It in desires. seems then that the action that is condemned is police Miranda refusal to take a defendant’s “no” for an answer, is, that police situations wherein the continue to question thereby harass and coerce the defendant so as to overcome his asseveration of his constitutional remain silent. Miranda, violation,
The Court found no however. It rea- soned: do not believe that the “[W]e defendant’s choice remain present silent for the should all lines of destroy communication. Such situation could lead to a stale- only mate.” Id. State, 22,
Manno v.
96 Md.App.
623 A.2d
cert. denied
(1993),
332 Md.
The Court
all further
per
proscription
create a
se
Mosley did not
has invoked
being interrogated
interrogation
person
once
More-
at
There was did not indicate he wanted County appellant Baltimore Supreme after the interview.” Under attorney an “until and Edwards and our decision Mosley Court’s decisions Latimer, that “I can statement appellant’s no stretch requirement it” as a interposed to talk about be don’t want any could further before there be present that counsel be *32 interrogation.
Here,
that,
non-respon-
appellant
after
was
Patón testified
Then, he
gun.
he secured her
inquiry,
waiver
sive
his
was I
tonight,
reply
and her
happened
“what
appellant,
asked
Patón
right
point,
talk about it
now.” At
don’t want to
Thus, ap-
else.”
anything
“didn’t ask [appellant]
claimed he
honored” for almost
“scrupulously
was
assertion
pellant’s
Ruel,
hours,
investigator,
sought
three
until a different
Miranda,
of her
advising
after
her
again
question appellant
time,
rights.
waive her
agreed
Freeman
At that
rights.
statement,
want to talk about it
sum,
“I don’t
appellant’s
In
now,”
lines of communication nor
all
right
“destroy
did
absolutely necessary----”
the defendant
prelude by
make a
Latimer,
B. Presentment rule, Claiming prompt presentment appel- a violation lant that the court in denying suppression contends erred her noted, motion. appellant p.m. As was arrested at around 8:00 30, 2000, on March presented and was to the Commissioner later, about twelve hours at about 8 a.m. on March arrest, Appellant points immediately out after her talk, when she that she indicated did not want to Patón ceased However, questioning. interrogation resumed about three hours later. Freeman asserts: “There was no explana- ... tion for the delay presentment] between 8:00 p.m. [in p.m., 11:00 other than for the sole purpose Corporal Ruel’s interrogation.” interview, After Ruel’s an eight delay hour ensued, appellant but did not provide a statement during that period time. Appellant states:
Such unnecessary delay, designed for the sole purpose of interrogation, is a critical factor in the voluntariness deter- mination. There was no why reason appellant should not have been brought in front of a District Court Commission- er shortly after her arrest at 8:00 p.m.....The additional eight-hour delay between the time the second interrogation concluded and the time appellant was brought before the District Court Commissioner explained as a delay for administrative purposes and the convenience of the Com- reasons, missioner. Neither of however, these adequately *33 explain the necessity for an eight-hour delay. State,
Relying on Williams v.
375 Md.
In the question However, in the to suppress. of her motion only the denial that brief, complains also appellant of her section argument jury apply the failing to instruct by “the trial court erred the volun- considering to this factor when heavy weight’ ‘very Ruel.” Corporal statements appellant’s tariness present- the extent appellant’s The contends State jury regarding to the ... instruction “turns on argument ment standard,” it is not because preserved heavy weight’ ‘very on to the court’s instructions except did appellant delay brief here argues “[t]he The also ground. State 'Trilogy” the time of Appeals's had not been decided 11. The Court Although appellant's hearing counsel suppression in this case. argument "very heavy weight” in her phrase never used clearly complained about hearing, defense counsel suppression delay presentment. record, appellant's disagree with we our review of 12. Based on only delay pertained to the explanation contention that midnight. period after
443 food, to obtain Freeman’s medication and necessary what, then to determine if be any, charges brought should her. against just Freeman’s announcement that she had shot someone, even when a is report shooting, taken with a not charging.” sufficient for instructions,
With
to the
respect
jury
appellant asked
to propound Maryland
Jury
court
Criminal Pattern
In
3:18,
struction
the factors
concerning
pertinent to the issue of
voluntariness of a
The
largely
statement.
court instructed
in
However,
accordance
the pattern
with
instruction.
it omitted
instruction,
factor 8 of
pattern
pertaining
“whether the
defendant was taken before a district court commissioner
and,
without unnecessary delay
not,
if
following arrest
wheth
er that affected the voluntariness of the statement.” Appel
omission,
lant’s counsel did
except
not
to the
however. Rath
er,
objected
she
only to the court’s inclusion of language
involving defendant’s mental
which
deficiency,
was included
pursuant
And,
to the State’s request.
in her closing argu
ment, defense counsel challenged the voluntariness of appel
statements,
lant’s
but she did not argue that Freeman’s state
ments were involuntary because of a
delay
presentment.
Therefore,
assuming
has
appellant
attempted in her brief
to raise a challenge
jury instruction,
to the
we agree with the
State that it is not preserved.
Maryland
4-325(e);
See
Rule
Reynolds
494, 502,
v. State 327 Md.
(1992),
lant’s motion. suppression Maryland a review of analysis our begin We states, a defendant 4-212(1). “When part: It Rule taken warrant, shall be the defendant arrestеd without *35 unneces without of the District Court judicial a officer before after arrest.” later than 24 hours in no event delay and sary will be coerced that a confession the l'isk The rule “reduces the accused conducted before interrogation a custodial during court commissioner.” by a district rights of his is advised (2004). 615, 651, A.2d 1216 State, 847 Md.App. v. 156 Faulkner (2002 of the Courts & § 10-912 Repl.Vol.), Maryland Code It (“C.J.”), pertinent. is also Article Proceedings Judicial states: judicial before take defendant Failure to
§ 10-912. after arrest. officer confession
(a) inadmissible. —A not rendered Confession solely because evidence excluded from may not be arrest officer after judicial a not taken before defendant Maryland Title 4 of the specified time any period within Rules. Title
(b)
comply strictly
to
f of
of failure
Effect
with the
comply
provi-
strictly
to
Rules.—Failure
Maryland
a
taking
to
Rules
Maryland
pertaining
of Title 4 of
sions
only one
arrest
is
officer after
judicial
before
defendant
court
others,
by the
be considered
factor,
among
of a confession.
admissibility
deciding the voluntariness
three cases
decided
18, 2003,
Appeals
June
On
analysis
in the
as a factor
involving delay
presentment
Williams, 375
confession:
of a defendant’s
voluntariness
1096;
435,
Facon,
825 A.2d
1078;
375 Md.
404,
A.2d
825
Md.
the case
456,
Although
825 A.2d
375 Md.
Hiligh,
decided, the
cases were
before those
was tried
judice
sub
tried before
to cases
cases “appl[y]
in those
holdings
184,
State,
Md.App.
v.
Odum
were rendered.”
decisions
(2004).
A.2d 445
purpose of
is
prompt presentment
pro
“[T]he
Facon,
vide a defendant with a full
panoply
safeguards.”
the determination of whether sufficient probable cause ex-
detention;
ists for continued
determination of eligibility for
release;
pre-trial
informing the
charges
accused of the
him,
counsel,
against
and,
his
if
right
his
indigent,
right to
counsel; and,
appointed
if the
charge
beyond
jurisdic-
Court,
tion of the District
preliminary
hearing.
sure,
To be
“[m]any factors can bear on the voluntariness of
a confession.”
Williams involved a delay in presentment of 47 hours. The defendant was 30, arrested at 4:10 a.m. 2000, on July as a robbery suspect. arrest, Following his Williams was treated at a hospital injuries. He was interviewed upon his return station, to the at beginning 9:25 a.m. By p.m., 12:42 Williams had confessed to two robberies. During the questioning, police discovered that Williams was also named in three warrants; homicide a homicide detective began questioning Williams at 30, 1:23 on p.m. July 2000. Williams was finally presented to the Commissioner at 3:07 a.m. on August 2000. that, within about hours
The Court
four
after
recognized
(i.e.,
eight
than
hours after his
interrogation began
more
arrest),
“had all of the basic information
police
they
a
on
present
needed to
to Commissioner”
the two
[Williams]
observed,
at
A.2d
It
id.
robbery charges.
Id.
at
There were no administrative and, that further to the performed required questioning, any, there it that the appear ensuing extent were does The questioning purpose. was for homicides had been on earlier. had July days committed 21-nine Petitioner in at least one of them. There was no already charged been property, concern about harm to other or possible people appear police focusing and it does not were on persons. or location of other Petitioner was not identity until questioned about an sometime after 10:21 accomplice interroga- a.m. on some hours after homicide July began. tions sole, view, purpose
In the Court’s
unadulterated
“[t]he
subsequent
interrogation
incriminating
obtain
a
Id.
It held that such a
was “not
purpose
statements[.]”
upon
delay presentment.”
basis
which to
proper
on
regard
Id. at
825 A.2d
standard,”
a “heavy weight
the Court said:
Articulating
that,
in
We shall conclude
while the statute makes a delay
one
in
presentment only
determining
factor
voluntariness
all
admissibility,
may
and
factors that
on volun-
weigh
that,
necessarily equal
import,
tariness are
in
when the
is not
delay
only violative of the Rule but deliberate and
confession,
designed for the sole
it
purpose
soliciting
must
given very heavy
be
There is
weight.
no indication
that, with
to the
respect
statements
the three
regarding
murders,
trial
gave
court
the continued
such
delay
so,
weight. When we do
it becomes clear that those latter
statements
involuntary
were
and therefore inadmissible.
added).
Id. at
825 A.2d
(emphasis
Accordingly, the Court
robbery
concluded that the
confes-
sions
voluntary
admissible,
were both
but that the state-
ments as to the murders were
voluntary
neither
nor admissi-
said,
ble. It
id. at
Nevertheless, Williams recognized that some delay is rea-
sonable, if not
As
inevitable.
to the interrogation for the
robberies,
pointed
Court
out that Williams “was not
effectively available for questioning” until after he was treated
at the hospital.
Id. at
Moreover,
448 robberies”, id., also said that was the Court “[i]t
the two statement, a written for the to seek police then inappropriate admissions, they which also did promptly.” oral to confirm the Id. 1108, 456, granted A.2d the Court
In
375 Md.
825
Hiligh,
of trial
ineffective assistance
relief based on
post-conviction
a
trial,
attorney
challenge
failed to
At
the defense
counsel.
which called into
24
in presentment,
of almost
hours
delay
confession. Re-
robbery
of Hiligh’s
the voluntariness
question
Williams,
reiterated
Hiligh
the
Court
decision in
ferring to its
that,
only unnecessary
was not
delay
a
in presentment
“when
incrimi-
extracting
purpose
for the sole
but deliberate and
statements,
special weight by
given
it must be
nating
A.2d 1108.
Id. at
court.”
suppression
taken to the
that the defendant was
The
noted
Court
p.m.,
10:30
March
and “[a]t
at
on
p.m.
station
10:58
to the
brought
he was first
32 minutes after
23 hours and
station,
before a District Court Commis-
was taken
petitioner
Yet,
had all
461-62,
“the police
Further,
id.
Hiligh
omitted):
(footnote
indeed,
is,
possibility
...
substantial
record
there
On this
motion, would
court,
suppression
ruling
on
that the
it inadmis-
involuntary and ruled
confession
have found the
into
had allowed the confession
judge
if the
sible. Even
Williams,
on
required,
been
evidence, would,
have
he
under
to instruct
on the
request,
jury
heavy weight to be
any
delay.
accorded
deliberate and
Further-
unnecessary
more,
jury,
had counsel
to the
there is
argued
point
same substantial
possibility
jury
would have found
*39
and,
in
involuntary
confession
accordance with the
instructions,
judge’s other
it.
disregarded
Facon,
435,
1096,
375 Md.
825 A.2d
is the
case in
remaining
case,
In
trilogy.
that
measured from the time when the
accused
brought
Washington,
was
from
D.C. to Maryland,
there was a
in
delay
presentment
twelve hour
his
to a Com
missioner. The Court found that
was
for
delay
solely
“[t]he
453,
the purpose
1096,
of interrogation,” id. at
825 A.2d
therefore the defendant was entitled to have the suppression
court “accord such violation
in
very heavy weight
considering
454,
whether
confession was
at
voluntary.”
[defendant’s]
Id.
Relying
its decision in
the Facon Court deter
mined that the prompt presentment
violated,
had been
rule
even though presentment occurred within 24 hours of the
Facon,
defendant’s
in Maryland.
453,
arrival
Several recent decisions of this Court have addressed trilogy discussed above. We turn to explore these cases. State,
In 1, Perez v. 155 Md.App. (2004), 841 372 A.2d Perez was convicted two counts of felony murder and related charges. claimed, alia, On he appeal, inter that his state- ments to the police should have been suppressed because of a in delay 48 hours presentment a Commissioner. 15, at Court, banc, 841 A.2d 19, 372. This sitting en id. at 372, A.2d vacated Perez’s convictions and remanded for fur- ther to allow proceedings, the trial court to ascertain the in proper regard standard to its voluntariness determination. 31, Id. at 841 A.2d 372. during period
Perez
several Miranda waivers
signed
And,
occasions,
a prompt present
issue.
two
he executed
on
9-10,
The
asked
ment
Id. at
[A] standard, heavy finding cannot be the sole reason weight it worth that the Additionally, repeating involuntariness. is determined ultimate issue is voluntariness. Voluntariness compliance of the circumstances and totality Williams, if it is rule is one Since presentment factor. noncompli- that one of the factors is deliberate determined for the sole prompt presеntment requirement ance with the confession, factor given a is to be purpose obtaining very heavy weight. 184, 445,
Odum, Perez. 846 A.2d followed Md.App. 156 188, There, Id. at kidnapping. was convicted of defendant alia, inter the trial appeal, challenged, 846 A.2d he 445. On involun police statements as suppress court’s refusal 191, 445, delay of a of about tary, id. at 846 A.2d because at Id. thirty presentment hours in his Commissioner. 203, 846 445. A.2d 2001, 26, was
At on June Odum arrested 11:00 a.m. station, is avail- taken to where Commissioner “[a]
451
195,
A.2d 445.
...
a
Id. at
twenty-four
day.”
able
hours
a.m.” Id.
in an interview room at 11:30
placed
“Odum was
food,
permit-
and was
given
beverages,
cigarettes,
He was
left alone in the
to use the bathroom.
Id. Odum was
ted
entered and took several
p.m.,
corporal
room until 5:40
when
of and
p.m.
of him.
Id. At 6:52
Odum was advised
photos
Then,
left
waived his Miranda
Id.
he was
alone
rights.
2001,
the interview room from 9:10
on
until 1:00
p.m.
June
time,
445. At that
a.m. on June
2001. Id. at
846 A.2d
signed
a homicide detective entered the room.
Id. Odum
second waiver of Miranda
at about 2:00 a.m.
Id.
rights
a.m.,
Between
4:00
a written
completed
2:00 a.m. and
Odum
statement.
Id. At 1:56
“was taken to a
p.m.,
holding
Odum
”
cell near the Commissioner’s
room....
Id. At 3:00
hearing
cell,
on
while in the
p.m.
holding
June
Odum
served
charges.
with a statement of
Id. He was then taken before
at 6:12
A.2d
p.m.
Commissioner
This
rejecting
Court observed: “In
motion to
[Odum’s]
the circuit
suppress,
ruling
court’s
from the bench does not
reflect consideration of whether
be
any special weight should
193-94,
given
any part of the
Id. at
delay.”
A.2d
(footnote omitted).
“|’B]ecause
we
Accordingly,
held:
specific
absence of
factual findings necessary to determine the
weight to be afforded the
delay
presenting Odum before a
Commissioner in the voluntariness analysis, we vacate and
remand for a new suppression
and a new trial.” Id. at
hearing
188,
Writing for this
Judge Rodowsky elucidated several
“general concepts”
wrote,
202-03,
from the trilogy. He
id. at
*41
First, because the concern is with in delay presentment that affects the given voluntariness of a statement during custo- dial interrogation, delay a that can have no effect on the voluntariness of a statement is immaterial to suppres- .... sion
Second, delays some necessary. are These no present 4-212(e) (f) violation of Rule or weigh and do not in any court’s eval- suppression in the against voluntariness degree process. uation
[*] [*] [*] unnecessary, and Third, delays be which are may there 4-212(e) (f), but which are not Rule and thereby violative of These de- interrogation. of custodial purpose for the sole voluntariness, they but do not against lays weighed must be in that heavy” weight against voluntariness require “very calls these in the instant matter analysis evaluation. Our I.” delays “Class Rule 4-
Fourth, delays, violative of unnecessary there are 212(e) (f), deliberately purpose for the sole which are to this analysis type refers interrogation. custodial Our A court is II.” unnecessary delay suppression as “Class “very heavily” against delay a II required weigh Class resulting of a statement’s in its evaluation voluntariness admissibility. actual interro-
Fifth, the arrestee to although subjecting delay of a part is the best evidence gation interroga- sole of custodial purpose is for the presentment facts, be for the sole tion, may on the delay, depending although unaccompanied interrogation, of custodial purpose interrogation. actual State, 847 A.2d supra, Md.App. v. Faulkner There, complaint the defendant’s we considered also useful. of seven and a half delay in presentment respect three and a half hours hours, concluded questioning when 650, 653, 847 Id. at initial Miranda advisement. after the Court, Adkins said: Judge “[W]e for this Writing A.2d 1216. new grant a blanket instruction to trilogy] as do not read [the suspect present interview a before trials whenever made clear “that A.2d 1216. Faulkner ment.” Id. at occur because of necessary delay” may some reasonable charge determine whether to questioning designed “police The Faulkner Court and for what crime.” Id. the suspect, necessary may be delay presentment that a recognized also *42 ... have suspect “in question [when] order that there have been a may information suggesting received 653, 847 shooting.” for the Id. at justification defense self A.2d 1216. entitled to concluded that “the detectives were
The Court
about his involvement in the crime for
question Faulkner
arrested,
whether
which he had been
in an effort to determine
bearing
charge
he had information
on their decision
”
Moreover,
pointed
him....
A.2d
we
Id. at
and present-
out that “much of the total time between arrest
legitimate investigative
ment was consumed
and adminis-
‘neces-
approved
trative tasks” that have been
as
“explicitly
”
Williams,
1078;
The interval between Faulkner’s arrest
for further investi-
necessary delay
reflected reasonable and
(via
questioning
the search of Faulkner’s home and
gation
him)
degree
culpability,
his involvement and
regarding
as well
reason-
charging
up,
before
were drawn
as
papers
(i.e.,
necessary delay
able and
for administrative procedures
“processing”
preparing
charging papers).
and
We hold
in
delay
presentment
in
concerns addressed
in
Williams do not warrant
new trial
Faulkner’s case.
Perez, Odum,
trilogy
and Faulkner
that the
does
recognize
not stand for the
that all
is
To
proposition
delay
prohibited.
“some
are
contrary,
delays
necessary”,
pres-
“[t]hese
4-212 ...
weigh
any
ent no violation of Rule
and do not
” Odum,
degree
Md.App.
voluntariness....
against
Indeed,
acknowledging
delay
“(1) to
out reasonable routine administrative
carry
proce-
recording, fingerprinting
photographing;
dures such as
(2)
document should be
charging
to determine whether
(3)
crime;
verify
issued
the arrestee of a
accusing
in the
specified
charging
of the crimes
docu-
commission
(4)
ment;
significant
to be a
aid
likely
to obtain information
of substan-
persons
property
harm to
or loss
averting
value; (5)
information
obtain relevant nontestimonial
tial
*43
identity
the
or locаtion
discovering
in
likely
significant
to be
arrestee in
may
who
be associated
the
persons
of other
for which he was appre-
of the offense
the commission
loss,
hended,
alteration or destruction
or in
the
preventing
crime.”
to such
relating
of evidence
State,
v.
A.2d 1078
Johnson
(quoting
375 Md. at
(1978)).
314, 329,
Md.
At about 10:55 p,m., some three hours after Freeman’s arrest, Ruel advised appellant of her rights Miranda and then her questioned about the incident. Although the interrogation concluded at around midnight, appellant brought was not the Commissioner until 8:00 a.m. the next day. Explaining the reasons for that Ruel delay, stated: “Basically completion paperwork, the processing of the actual finger- *44 print, photograph, and also the Commissioner wasn’t coming in until the following However, morning.” contrary appel- to lant’s suggestion, Ruel did not that indicate his explanation pertained only period Thus, to the from midnight to 8:00 a.m. the record does not claim support appellant’s that there was no explanation for the three-hour delay. event,
In any if the police had not completed the paperwork and processing appellant of until after as midnight, appellant suggests, that argument does not help appellant. If the police were not with finished their administrative duties by midnight, then they obviously were not finished with them during the issue, three hour in period from 8:00 to 11:00 p.m. p.m. Accordingly, we discern no error in the court’s finding “under the totality circumstances,” of the there was no reason to suppress the evidence based on a in delay presentment. the court Although did not use the words in its “heavy weight” (because analysis the had trilogy yet decided), been it so, would have no reason to do because there was no evidence that the delay was deliberately occasioned for the sole purpose of seeking Odum,, to interrogate appellant. Md.App. 202-03, 846 A.2d 445. THE CAL- OF CIRCUIT COURT FOR
JUDGMENT BY TO BE PAID VERT AFFIRMED. COSTS COUNTY APPELLANT. MOYLAN, by Judge.
Concurring Opinion
majority
reached
the
fully
only
by
I
concur not
the result
painstakingly thorough
analytically
but in the
opinion
Miranda,
the
issues.
I
have no
incisive
also
discussion
respect
with
any
specific
statements made
quarrel
rule and
alleged
presentment
to the
violation of the prompt
under
might,
currently pre-
that
violation
impact
such
law,
on
common law voluntariness.
vailing
have
traditional
I
only
my
at what
express
chagrin
I write separately
unnecessary
of wheels”
totally
“spinning
believe
be a
over
course of
last fourteen
appellate
both
courts
meaningless.
to me to be
months over an issue
seems
(one
and the
proactively
courts
to be
Both
seem
obsessed
suppression hearing judge,
other
with whether a
responsively)
totality
go
into the ultimate
weighing
factors
voluntariness,
“heavy
given sufficiently
has
determination of
rule,
if such
weight”
presentment
a violation of
prompt
(that
course,
finding,
be
to have occurred
should
found
subject
clearly
appellate
to the
erroneous standard of
being
review).
an
why
I
as to
court
appellate
am dumbfounded
care
weight
suppression hearing judge gave
should
what
factor,
enjoined
weigh
court is
any
appellate
because
factors
for itself.
*45
Harrell
of
begin
analysis
Judge
I
with the
of
for
State,
(2001),
Appeals Winder v.
Md.
On ultimate issue of the appellate taking given as a those findings iirst-level of fact that are and, clearly in resolving erroneous ambiguities, taking version of the evidence most favorable to the prevailing party, writes on a clean slate with to its respect de novo weighing. issue, On that it is not marking paper the suppression hearing judge, but is making independent its own decision on the basis of the factors that have been factually established.
Even if the suppression hearing judge weighed the factors correctness, with impeccable he is not home free. The inde- pendent de novo determination of the appellate court might still go in the opposite direction. if Even the suppression hearing judge, hand, on the other weighed the factors with flagrant disregard of Williams-Hiligh-Facou, a reversal or a remand does not necessarily follow. The independent de novo determination court, of the appellate presumably adhering faithfully to Williams-Hiligh-Facon, might nonetheless make the same determination. Whatever the suppression hearing judge does in the weighing process, rightly or wrongly, will not therefore be dispositive outcome, of the final if the appel- late court is truly going make its own independent de novo determination. suppression The hearing judge, right or wrong, has been by-passed. true, If that be it makes no whether, difference in some other world without de novo review, he have might been right wrong. or The appellate de novo determination superseded has his decision thereby made his weighing of the factors irrelevant. case, course,
In this there was no violation of the prompt presentment rule and there was no occasion for anyone give *46 none- mind-boggling, I find it or small. weight, great
it any are Williams-Hiligh-Facon names theless, that whenever the mind set bar lock into bench and whispered, even New Emperor’s tale “The fairy Anderson Hans Christian curbside, as the cheering lustily Everyone stands Clothes.” down prances imperially troika Williams-Hiligh-Facon truth, “The the self-evident street, speak dares to and no one clothes.” has no Emperor A.2d 590
Troy GATEWOOD Arness
v. Maryland. STATE Term, Sept. No. Maryland. Special Appeals of 8, 2004.
Sept.