Gupta v. State

the time to a limits first-tier will appeal trigger the timeline for invoking the second tier of that process.

In light of holdings, those we shall reverse the dismissal of complaint this case and remand for consideration whether Ms. Hughes should be afforded the opportunity to pursue second-tier appeal whether there are other defens- preclude es that providing that relief.

Judgment Appeals Special of the Court of Reversed Remanded Case With Direction To Remand the Case To the County Circuit Court for Baltimore for Further Proceed- ings Opinion. By Consistent With This To Be Costs Paid Respondent.

156A.3d 785 Rahul GUPTA v. Maryland

STATE of Term, Sept. No. Appeals Maryland.

Court of Filed: March Biddle, & Nathans, A. (Larry Booth Nathans Ripke M. MD), brief, LLP, Baltimore, petitioner. on for (Brian Frosh, E. Jr., Atty. Taylor, K. Asst. Gen. Robert MD), brief, Baltimore, respon- Maryland, Atty. Gen. dent.

Ill C.J., Barbera, Greene, Adkins, McDonald, Hotten, Getty, (Senior Lawrence F. Rodowsky Judge, Specially Assigned), JJ.

Getty, J. In this case we are asked to determine whether a trial judge’s parte ex communication juror with a Maryland violated 4-326(d)(2) and, so, Rule if such whether violation harm- In addition, less. we must determine whether a suspect can right invoke his to counsel under by demanding Miranda1 see a lawyer while a holding cell interrogation begins.

For follow, the reasons that that although conclude trial judge did violate 4-326(d)(2), Rule that error was harm- beyond less addition, a reasonable doubt. In we hold that the Petitioner did invoke his Miranda by demanding lawyer see a his from holding being cell before interrogated, and therefore the circuit court did not err in denying the Petitioner’s motion to suppress the statements he made detectives during his interrogation. Accordingly, we affirm judgment will of the Special Court of Appeals.

BACKGROUND A. Murder Saturday, 12, 2013,

On October Petitioner Rahul girlfriend, Taylor Gould, went out to Dupont dinner neighborhood Circle of Washington, D.C. celebrate Mr. Gupta’s twenty-fourth dinner, birthday. After the couple bar, walked to a nearby where they upmet with two of Mr. Gupta’s friends—Mark Waugh and Approximately Josh White. later, an hour group nearby bar, moved to another point which they split up into pairs. Gupta Mr. went outside White, with Mr. while Mr. Waugh remained inside the bar with Ms. Gupta Gould. Mr. testified that he went outside with Arizona, 1. v. U.S. 86 S.Ct. 16 L.Ed.2d 694 (1966). that, during marijuana. He also testified smoke Mr. White thought that he Ms. time, Gupta told Mr. this Mr. White bar, Meanwhile, inside the Ms. him. flirting was Gould she felt like Mr. was Waugh Mr. that White confided in Gould her, making on it her hitting and was uncomfortable. bar, Later, Waugh to a third Mr. group had moved after the Ms. Gupta about the situation between Gould confronted Mr. White, Gupta “trying that Mr. was telling Mr. Mr. White and Mr. a move on” Gould. White denied accusa- make Ms. in the apartment to his tion, at that time return and decided Gupta D.C. Washington, Park Mr. Woodley neighborhood and night, couple call Gould also decided and Ms. they apartment Spring, took a shared Silver taxi back by Waugh. accompanied Mr. Maryland, Spring apartment build- cameras the Silver Surveillance Sunday, on trio arrived 1:50 a.m. October ing show that the vodka, apartment, they took shots Once inside 2013. marijuana, all sat Gupta more and three Mr. smoked point, At some there began games. couch video playing and any there had been whether another discussion about was night. in the Mr. earlier between Ms. Gould and White flirting confront helped that her Mr. Waugh Gould Mr. Ms. testified White, Mr. flirting by Mr. while Gupta perceived about the not Gould’s Waugh Mr. did believe Ms. Gupta testified that on her.” “hitting accusation Mr. White they Both Ms. claimed that could and Gould discussion, following events as both remember the clearly night. But at 3:25 drinking heavily throughout had been Ms, told a.m., Gupta’s 911 at Mr. direction. She Gould called emergen- I need friend is ... here and operator “my now,” breathing,” that “he’s “there’s cy everywhere.” operator asked Ms. Gould what blood When question Gupta, to Mr. happened, relayed she hap- “I don’t what operator, to the know responded then pened.” a.m., at 3:36 apartment officers arrived at the

Police front intoxicated” Gould at the door. “very encountered a Ms. repeated She to the officer that she did not know what happened, they placed and her handcuffs and detained her outside apartment. The officers who apart- entered the ment Gupta found Mr. groaning blood, and covered lying on just the floor to the left of Mr. Waugh’s body. When the officers Gupta Mr. happened, asked what he responded, “They were cheating. girlfriend My cheating My on buddy me. my girlfriend cheating. were I walked on my buddy and my girlfriend cheating. I my killed buddy.” Medical techni- cians on the scene confirmed Mr. Waugh was The dead. medical examiner testified that Mr. Waugh had six stab wounds “cutting injuries.” and five Police an eight- recovered inch knife, kitchen as identified the murder weapon, from under Mr. Waugh’s leg. Interrogation

B. The and Suppression Hearing Police transported officers Gupta Gould, Mr. sepa- Ms. rately, Major Crimes Division of the Montgomery County Department. there, Police Once they placed Mr. Gupta in a holding cell await interrogation. In holding cell, a.m., Gupta 5:05 Mr. Richardson, screamed Officer Andrew who was nearby keep eye stationed on Gupta, Mr. Mr, he was “going sue the shit out of you.” all of Gupta also pounded cell, door his and screamed'—two to three times—“I a lawyer.” want Approximately ten to minutes thirty later, according to estimate, Officer Detectives Richardson’s Hamill Paula and Kathy Fumagalli speak arrived with Mr. Gupta and Ms. relayed Gould. Officer Richardson to the Gupta’s detectives Mr. request lawyer. for a At suppres- sion hearing, Fumagalli that she Detective testified remem- receiving information, bered while Detective Hamill testi- fied that she learning did not Gupta remember Mr. requested lawyer. spoke Then, a.m., detectives Ms. first. at 8:10 Gould

they Gupta holding moved Mr. from the cell into an interview room began answering After questioning pre- him. some liminary questions background about and current state mind, Detective Hamill his Gupta rights read Mr. Gupta Mr. rights. him whether he understood those

and asked silence, eight seconds “Yes.” After about responded, ...,” to talk Detective do I asked, get “When ... here’s “Okay, you him do by stating, interrupted Hamill hap- the heck to find out just trying what the deal. We’re with Gupta cooperated I mean?” Mr. You know what pened. questions throughout their answered the detectives to see or request interrogation, and did not fifty-five-minute one hour after approximately to until speak lawyer a trial, Mr. questioned At ended. interrogation had State of the statements regarding some on cross-examination Gupta them- during interrogation. The statements made he had into evidence. selves admitted were second-degree Gupta Mr. with first- charged The State to County. Prior Montgomery in the Circuit Court murder statements he a motion to trial, Gupta suppress filed Mr. Specifical- of his arrest. morning on the to officers police made that the argued Mr. appeal, Gupta to this ly, and relevant Detectives being interrogated by he made while statements they because Fumagalli should be suppressed Hamill and present his to right in violation of have were obtained Miranda. Mr. Gupta asserted during under questioning holding cell lawyer a he to see while was demands “in of custodial made the context awaiting interrogation were Upon “imminent.” interrogation interrogation” when to required were requests, of these detectives learning speak Mr. a chance Gupta until had questioning cease concluded, he Therefore, any Mr. statements lawyer. Gupta a must interrogation be during to the detectives made right being as obtained violation of his suppressed to counsel. 30 and

Following hearing July a on suppression The suppress. Mr. motion Gupta’s the circuit court denied “two to lawyer that Mr. Gupta requested found took custody interrogation four ... while times passed along and that “that communication was place,” detectives,” Fumagalli, by Officer or at least to Detective However, that these demands the court concluded Richardson. equate did invocation to counsel under Miranda, they were made prior because to interrogation. Furthermore, the court found was advised his Miranda rights, “that he made a knowing intelligent waiver” of those rights, and that he all, “did not assert at let alone without equivocation, desire have counsel present.” C. Trial

Mr, Gupta’s began trial Monday, March During 2015. jury selection, the court potential jurors advised the that the trial eight days was scheduled to try “take to completion,” meaning it until likely would last Wednesday of the following week, March if 11. The court asked anyone would unable during serve time due a substantial personal or finan- 18A, cial hardship. Prospective Juror along others, with many responded in the affirmative. When questioned individually response, about her Juror 18A explained that she “for a works very small non-profit, so [her] absence an extended period of time will be difficult.” Additionally, she that she stated had care,” “two children no at home and child so she would “be a position to try to find to look somebody after” during them the trial. answers, along

These with the fact that Juror 18A stated that she was friends social -with defense partner, counsel’s caused the court concern. The court if then asked there would any objection striking juror, to to which the State responded, object, however, “No.” Defense counsel did juror.” stated that good “she’s a Juror 18A on the remained jury panel, ultimately became a of Mr. Gupta’s member jury.

On Thursday, the circuit March court was closed due to At proceedings the close of on Friday, snow. March jury told the the trial taking longer than originally expected. Thus, jurors the court told to prepare to until following 13, and, serve Friday, March “out of an caution, abundance of days some after that.” court in- jurors structed the make to the court aware they when any potential Monday they if foresaw following returned serving during that time. period conflicts with recess, the court during March afternoon Monday, On a potential Juror had raised 18A parties informed the of that week: beyond the end continuing serve conflict with us, I mentioned to think 18A] [Juror had THE COURT: Saturday. next that she had a conflict with during voir dire at her hand the tail Oh started raise STATE]: she [THE yesterday testimony [sic]. of the end clerk, law Yes, my mentioned so she had THE COURT: look? Or she was concerned things do you how know Las conference in keynote speaker because she’s Saturday. brought up leaving on she’s she’s So Vegas and my you I clerk—did tell just times law or 4 so about 3 you? just I I tell her that deal with told said we’ll her what of her way to stand going on That we’re Friday. My maybe intention is that we’ll be conference. going her just look on If see how we done, not. we’re we’ll maybe my going, all 14 still everybody, we have Friday and you if this more can talk about later thought be we would go tell her My thought it. would be want talk about Monday morning excuse your thing. do Come to Las Vegas, or 13 got people her we’ve least once know we left— long Do know how she’s COUNSEL]: we

[DEFENSE going to be there? morning that Monday if find out

THE —and we COURT: her, having skip may up end we’re without trouble Wednesday. worst days. coming a few She’s back So just skip we’ll scenario, rather than mistrial case have a days. couple assuming them continue Have deliberation

[THE STATE]: on a on a instead of they Wednesday started something Monday. keep need to Yes, I don’t know

THE COURT: well if just saying I’m on if into going her we’re deliberations. still in trial— n we’re If we’re still presenting STATE]: evidence?

[THE really THE I’m giving you up COURT: a heads mainly to you my tell about the communication clerk her you told know, keep you this won’t from for going Vegas your to Las conference, okay. you. COUNSEL]: Thank

[DEFENSE you. [DEFENSE CO-COUNSEL]: Thank At the of proceedings close on March Wednesday, the court had another conversation the parties regarding 18A. parties2 Juror One of the asked court plans the about its juror the trial assuming beyond the that Friday. continued The court there thought “really good was chance that going carry deliberations are over until Monday,” and deliberating stated that Juror 18A would not if be the deliber- Friday. on ations started Defense stated that he did her,” proposed not want “to cut deliberations postponing until Juror returned from her conference. 18A The court responded that juror’s keynote speech on Monday, she until would not return The court Wednesday. told “I my being wouldn’t hold breath on on the parties, jury.” her On March at 3:00 18A Thursday, p.m., Juror sent a note again to the court her that she expressing concern would not jury Monday, able following Tuesday, serve juror note, also Wednesday. The stated her “After investing I trial, would like to see it through weeks this but Iif am The court certainly understand excused.” notified the morning Friday, on the parties note March hearing delivering jury closing argu- instructions and record, After the contents of note on reading ments. “I think is inappropriate stated reaction: its her compel presentations. her to So I’m forego prepared to to perform find that she is her and to place unable service first alternate her Does need discuss that place. anybody situation, briefly?” Defense counsel asked discuss conversation, party record which 2. The does reflect initiated this as speaker only transcript in the as identified "UNIDENTIFIED SPEAKER." excused. Defense should be stated that Juror 18A juror until the postponed again proposed deliberations suggested counsel also her conference. Defense returned from (Friday), and could begin day could deliberations if night, necessary. into the continue late “highly it that would be burdensome responded

The court days.” them on several jurors other to have hold on the exercising that it was its discretion the court stated Therefore, that Juror 18A finding Rule 4-3123 Maryland under her jury replacing and perform service” adequately “unable beginning at the deliberations. with an alternate officially morning to Monday wait until noted that would something alternate, case 18A and the second excuse Juror them with less that would leave happened over the weekend case, accept jurors. In that the court would than twelve until Juror delay proposal counsel’s deliberations defense a mistrial with or fewer returned, avoid only 18A “but jurors.” on March Friday,

At of proceedings the close go to her the court told Juror 18A began, deliberations morn- conference, Monday excused that she would be jurors. no the other problems there were ing assuming not to their conversation told Juror 18A discuss The court also court that the other jurors. Juror 18A told the with the other that she leaving she was “would jurors already knew that responded that today.” after The court be dismissed probably jurors fine, not tell the other about long that was as as she did until delaying deliberations back-up plan potentially officially March the court excused Monday, Thursday. On service, with an alter- her replaced 18A from her Juror nate. deliberations, jury five hours of

After approximately 27, 2015, May first-degree murder. On Gupta convicted Mr. jury part, retires 4-312(g)(3) provides, any "At time before the Rule 3. verdict, judge replace any jury member may consider its the trial jury (e).” perform judge disqualified to to be unable or whom trial finds set under section in the order of selection service with an alternate the court sentenced Mr. life imprisonment. Mr. Gupta appealed his conviction to the Court of Special Appeals, which affirmed judgment of the circuit court in reported opinion issued on April State, 2016. Gupta v. 227 Md.App. 718, 749, (2016). 19, 2016, On August granted Gupta’s petition Mr. for a certiorari, writ of to the limited following questions4: 4-326(d) judge

1. When a violates Md. Rule by communicat- an ing parte juror’s answer to a question ex that “pertains action,” to the disclosing without toit the or any defendant lawyer, can the presumption of prejudice be by overcome adding a new of standard review claiming the judge’s ex parte answer was not enough? “substantive” 2. Did trial the court err by granting not pre-trial suppres- sion of Petitioner’s interrogation custodial statement after finding he communicated repeated demands for a lawyer police officers while he locked-up was in a cell just before being interrogated?

Gupta State, 409, 144 (2016). v. 449 Md. A.3d 704

DISCUSSION A. Ex Parte Communication Between the Circuit Court

and Juror 18A Mr. Gupta argues that the circuit court Maryland violated 4-326(d)(2)(C) Rule when told Juror 18A that she not would miss her conference without informing parties first the of the communication providing them opportunity input. Gupta’s petition 4. We denied following Mr. as to the two additional questions: request missing Is a defendant's jury for a inference evidence/adverse legally instruction request jurors insufficient a that be direct- without inference, ed to draw an adverse and is the instruction unavailable in proof theory solely absence that the defense of the case "depend[s] on” the instruction? making Did trial err by ruling proof court a threshold only possible suspect other protection in the case a knife for carried evaluating not credibility was relevant to of her claim she was capable” stabbing "not someone? has not met its burden that the State asserts was harmless be- communication showing parte ex to a doubt, he is entitled new yond and therefore reasonable circuit court responds a trial. The did State 4-326(d)(2)(C) the communication did violate Rule because asserts that Alternatively, to the action.” State “pertain Rule, the if violation even the circuit did violate Juror 18A did beyond harmless doubt because reasonable not have deliberations, and therefore could not participate trial. affected outcome 4-326(d)(2) the court governs communications between Rule jurors: (A) any receives -written or employee A court official who juror or a shall jury oral communication from the immedi- judge of the communication. ately notify presiding (B) whether the communication judge shall determine judge If the determines that the pertains the action. action, judge may to the the pertain communication does appropriate. as or deems respond he she (C) pertains If that the communication judge the determines action, respond- and judge promptly, to the the shall communication, parties to the that the notified ing direct be consider, record, on the of the communication and invite and judge may re- any response. the on The parties’ position in orally open or spond writing the communication on court the record. that the communication parties dispute do not between she trial clerk Juror 18A about whether judge’s

the law this governed by to attend her conference would able Instead, the communication parties dispute Rule.5 the whether action,” judge the trial to the such that “pertain[ed] judge” Although "the the discusses communications between 5. Rule 4-326(d) previously jurors, Court has held "that Rule extends jurors personnel.” Har to communications between court State v. Therefore, 700, 714, (2012). ris, communica Md. judge's law clerk falls within the tion between Juror 18A and the trial purview the Rule. required follow the procedures (C), outlined paragraph whether the not “pertain action,” communication did to the such that the trial judge was free to “respond as he ... (B). appropriate” deem[ed] paragraph under argues Mr. Gupta that the pertained communication action because concerned Juror 18A’sability to continue serving on jury and eventually deliberate. The State contends that the communication pertain did not action because it concerned a “routine administrative matter” re garding “a possible future scheduling problem,” rather than a “substantive discussion of trial matters contemplated [as] by the [R]ule.” raising

“[Communications issues that ‘implicate and concern juror’s ability continue deliberating’ pertain[ ] 4-326(d)(2). the action” under State, Grade v. Rule 431 Md. (2013) 100, 64 A.3d 197 Harris, State v. (quoting 428 Md. 700, 715, (2012)). Harris, A.3d 1171 For example, judge’s trial secretary juror’s call from a phone received a father, her that informing juror’s grandmother passed away. 705-06, 428 Md. at 53 A.3d Without notifying 1171. phone call, the secretary juror informed the his grandmother’s death, and him asked “whether he was alright to Id. serving continue” jury. 53 A.3d juror responded that he was. Id. 1171. The Shortly after the start of deliberations, the juror sent a note to asking family be excused so that he could help prepara grandmother’s tions for his funeral. Id. The court informed the of parties juror’s note, the discharge juror. and refused to the Id. at 709, deliberations, 53 A.3d 1171. a of After few hours the jury acquitted the of second-degree specific defendant intent murder, him second-degree depraved but convicted of heart murder. Id. This Court that held the communication between the judge’s secretary juror pertained the the action because it involved that implicates, may “information a Id. at impact, juror’s ability 716, continue deliberation.” 53 A.3d 1171. especially Such information is relevant when “the ability dependent his or continue her

juror suggests trial.” Id. a conclusion the upon speedy jury, including the alter- Grade, In the trial court told the day at 9:15 a.m. the next nates, to return to the courthouse 88, Assuming 431 Md. at A.3d 197. begin deliberations. court stated it would dismiss the up, the everyone showed morning, next the court at time. Id. The alternates jurors stating from one of that she call the phone received a at courthouse 10:30 a.m. get not be able to until would informing the at 64 A.3d 197. Without the earliest. Id. communication, replace of the elected parties alternate, delay than deliberations until rather juror with “[fell] This that the communication arrived. Id. Court held she 4-326(d)” a of Rule “it was because squarely within ambit court, subject, directed to the about communication would, which, on, could, make-up if affect the acted or effect and, in by parties as determined fact-finding panel of the 100-01, very on with that effect.” Id. at fact, it was later acted 64 A.3d 197. case, with in this communication

Similarly, Juror 18A’s of the trial and her judge’s progress trial law clerk about the ability two her serving beyond implicated conflict with weeks Harris, As in her serving to continue deliberate. conclusion “ability upon to continue dependent speedy [was] Harris, trial,” she of the 428 Md. 53 A.3d because if of evidence only presentation able deliberate would Also, trial. of the second week of concluded well before the end in Grade, inquiry Juror 18A’s “was a communication direct- as court, subject, which, if acted to the about a the effect of ed on, could, would, make-up fact-finding affect the and, fact, it was later by parties as panel determined Grade, 101, A.3d very acted effect.” Md. Therefore, conclude, Grade, as in Harris and 197. we did if the trial inquiry happen that Juror 18A’s what would about a third within squarely continued into week “falls the ambit 4-326(d).” Grade, 100, 64 Rule Md. at 197.

123 juror’s Because the communication pertained action, to the the circuit court required was to to adhere the procedures 4-326(d)(2)(C). outlined in Rule State, See Winder v. 362 Md. 275, (2001) (“These 322, 765 97 rules are not abstract guides. They mandatory followed.”). are and must strictly This means the trial judge required, was responding before communication, to promptly notify parties; consider, record, on the parties’ position any on response; and to respond to the communication in or writing orally on 4-326(d)(2)(C); record. Md. Rule Harris, see also Md. 428 (“The 720, 4-326(d) 53 A.3d 1171 mandate of Rule unambiguous!)]”). procedures These “are basic and relatively simple to to in practice.” Winder, adhere 322, 362 Md. at A.2d 97. reveals, parties record and the do not dispute, that the

trial judge did not adhere mandates Rule 4- 326(d)(2)(C). He did notify parties not of Juror 18A’s inquiry responding before through clerk. law He did consider, record, invite on the the parties’ position on any response. Finally, respond he did not to the communication either on writing orally Instead, the record. the trial judge responded juror, to the off the record, his law through clerk, “[t]hat we’re not going way stand going her conference,” her parties and informed the of the conversa- tion the next day. Therefore, business judge the trial violated 4-326(d)(2)(C). Rule

“A to comply [the failure man explicit Rule’s] error, date is and once such established, only error is remains this Court to determine whether that error was prejudicial and, thus, to the requires defendant reversal.” Harris, State, (citing Taylor Md. 53 A.3d 1171 v. (1998)). Md. Gupta argues 722 A.2d Mr. that judge’s the trial prejudicial violation the Rule was because it deprived him of the to have notice of evolving situation with Juror opportunity provide 18A and an input before the judge responded juror’s to the inquiry. Additional ly, that it is 18A was definition,” because Juror harmless was, “by Rule

the an deliberations replaced with before alternate dismissed and for the asserts, “it impossible” Therefore, the State began. Gupta. to have harmed violation alleged to of trial court a communi the disclose “Any failure 4-326(d) the is under harmless evaluated under Rule cation the not harmless ‘unless and be considered error standard will not that such communications were affirmatively record shows of the tendency to the or no influence verdict prejudicial ” (2011) 58, 74, 984 State, 424 Md. 33 A.3d v. jury.’ Ogundipe 646, 656, A.2d 944 State, 837 (quoting Denicolis v. 378 Md. (2003)). error, the beneficiary of the State has burden

“As the reversal prejudicial,” “[a] it not and establishing that was demon required is unless record the ... conviction communicating court’s error with strates that the trial [Tay jury prejudice [defendant].” not ex did parte differently, it is lor, 354, at 65.] 352 Md. 722 A.2d Stated for a to a communication with engage error trial court notification to jurors, record, or off the jury, and without counsel, unless the presumably prejudicial and that error is can affirmatively prove State otherwise. (alterations ellipsis

Harris, 428 53 A.3d Md. 1171 658-59, Denicolis, A.2d see also 378 Md. 837 original); (“Once on the to established, 944 is is State error burden a beyond show that was harmless reasonable doubt. (or the communication affirmatively record must show not prejudicial.”). lack response response) was suggestion outset, reject

At we the State’s from cure that arises presumed prejudice a trial court can dismissing juror by simply its a parte ex with communications juror her an Of replacing the “infected” with alternate. course, right a a recognize defendant] that “while has [a right jury a a impartial fair jury, [he] does have

125 composed particular Cook, individuals.” v. State 338 Md. 598, 614, (1995). such, A.2d As defendant’s “[a] ‘valued have his trial completed by particular a expanded should not be apply situation tribunal’ a where juror a seated replaced is with an alternate who has under- gone process jurors same selection as the seated and has present for the entire trial.” recognize been Id. We also “that discretion, judge trial has pursuant a 4—312(g)(3)], [Rule juror substitution, to replace juror make alternate deliberation, juror” if that perform unable to her duty. Grade, 431 Md. at A.3d 197.

However, discretion, judge’s the trial pursuant if 4-312(g)(3), Rule appropriately, even exercised does automatically render harmless the violation of judge’s against prohibition parte ex communications. See id. at (“Where ... more than one Rule addresses the same issue, on, neither overlapping may alone, Rule relied to be the trial court fail to all permit comply other applicable with rules,”). there triggering juror communication, compli- is a

Where 4-326(d) ance nor infringes with Rule neither affects the judge’s trial or responsibility exercise under discretion [4-312(g)(3) hand, Rule On the other ]. trial court’s failure 4-326(d) and, to follow Rule indeed, renders undermines nugatory right, the that by Rule, defendant’s vindicated present stages at all trial. Therefore, at 104. the fact that not engage Id. Juror 18A did deliberations, she was pursuant because dismissed Rule 4-312(g)(3), is insufficient that the trial judge’s establish 4-326(d)(2)(C) beyond Rule was violation harmless a rea- sonable doubt.

Instead, must look to the transpired record of what circuit court to determine the “affirmatively whether (or that the communication or response show[s] lack re- Denicolis, was not sponse) prejudicial.” 378 Md. at judge 944. The reveals that record the trial first notified parties parte of the the ex communication with Juror 18A 9—the second Monday, recess on March an afternoon during that time, judge revealed At that the of the trial. Monday continuing beyond the trial concerned about Juror 18A that leaving town she was week, of that because the end not and would Vegas in Las to attend a conference Saturday also ex- judge following Wednesday. until the return this juror had mentioned that the a mistaken belief pressed juror the had dire, in fact conflict voir when during Further- on the record. mentioned her conference previously already responded that he had more, judge explained clerk, telling her through by his juror’s law inquiry, going of her to her way in the going stand “we’re that he would judge stated resolve Finally, conference.” of the trial on Friday, depending progress situation on point. at that another conversa- parties

The record reveals Wednesday, March Juror 18A regarding the court tion with suggested postponing delib- 11, during defense which On from her conference. juror returned until the erations to the court a note Juror 18A sent Thursday, March week, into a third going the trial her concern about expressing time, At that day. next parties to the which the court read 18A to dismiss Juror prepared that it was expressed the court if alternate, parties they but asked her replace and expressed Defense counsel decision. wanted discuss decision, either suggested with the court’s disapproval from her juror returned until deliberations postponing late day going conference, starting deliberations rejected op- these night. into The court considered replace 18A and Juror tions, ultimately choosing dismiss previously as stated. her with an alternate that the trial record, hold on review of this we Based our 4-326(d)(2)(C) a beyond harmless of was violation Rule judge’s of that, to the Court prior recognize doubt. We reasonable Maryland appel below, “no reported Appeals’ opinion Special of proving that the met its burden case held State [had] late juror a was communication with parte that a trial court’s ex However, 728, 135 A.3d 926. Gupta, Md.App. harmless.” conclude, court, did the appellate as intermediate materially distinguishable case from those previous cases. Harris, For example, prejudiced by the defendant was parte the ex communication he because and his counsel were provided “not the to opportunity evaluate the emotional juror, nor input state the on provide proceed.” how to Harris, case, Md. at 53 A.3d 1171. In that “had the occurred, communication been it disclosed when the alternate jurors have been to replace juror. available would trial court, by waiting until the alternates were dismissed advise the respondent subject communication, and the State of Here, options.” limited the available Id. and his Mr. Gupta counsel did not need “to evaluate the emotional state juror,” potential inability because Juror 18A’s to continue to a serving rather her scheduling related conflict than mental Moreover, Harris, stability. unlike and his counsel provide input were denied “to on opportunity an to proceed.” Although how See id. parties were inquiry responded informed Juror 18A’s the court before 4-326(d)(2)(C), it, by as Rule required they were informed at court still time when how options regarding before situation, to resolve the and the parties had the opportunity input on In provide fact, their those counsel options. defense provided input separate the circuit court on three communication, being occasions after informed but juror. court its dismiss made decision Grade, Similarly, by prejudiced defendant was the ex parte judge communication resulted in because it dismiss- ing juror and without replacing her with alternate Grade, from the See receiving input parties. 431 Md. (“The

A.3d 197 notification of their opportunity bar.”). Here, input missing although have are from the case at the circuit ultimately rejected propos- defense counsel’s conflict, als for 18A’s its scheduling how to resolve Juror juror replace decision to dismiss the her with an alternate proposals only considering rejecting made those after multiple the record. We conclude that defense counsel’s provide input on how to the situation opportunities address on acknowledgement 18A, the circuit court’s Juror and with rejected and defense counsel’s that it considered the record from cases distinguish this case sufficient suggestions, are Harris, Fur- input no such occurred. like Grade where provided opportunity thermore, parties because both were the court the situation how to resolve before input to offer on 18A, we cannot see dismiss Juror made its ultimate decision delay the one Gupta prejudiced by Mr. was business how initial communication in the between being notified about day law clerk. juror judge’s the and the has satisfied its State Therefore, we hold of Rule judge’s that the trial violation establishing burden 4—326(d)(2)(C) How beyond harmless reasonable doubt. was governing rules communications ever, “[t]he we reiterate that simple jury relatively are basic and judge between Winder, 362 Md. 765 A.2d 97. practice.” to in adhere guides. They mandatory are rules are not “These abstract Thus, “a court communi Id. strictly followed.” must be in together jurors bringing parties first cates without skates on ice that can be obtaining input their open court and 737, 135 Gupta, Md.App. at 926. dangerously thin.” subsequent input opportunities that the So while hold case, to sufficient, on the of this show that Mr. facts were parte the ex communication, we by prejudiced was Gupta have for the circuit court would practice note that the better juror’s inquiry provid before parties been inform the Rule. response, by as ing required B, Suppress of Miranda Based Violation Motion to

Right to Counsel his denying circuit court erred Gupta argues Mr. that the motion to the detectives who suppress statements those morning him the the murder because interrogated of his Fifth Amendment were obtained violation statements during questioning by police present have Miranda. that the detectives violated asserts under repeated him he made de- interrogating after right by interroga- cell holding from his lawyer mands for a tion began. responds any State purported obtaining violation in statements harmless because the statements into at trial. Alterna- were admitted evidence tively, argues that there fact was no State violation his unambiguously right because Mr. did invoke present have at time during counsel the detectives’ inter- any rogation.

This a circuit reviews court’s denial a Court motion to suppress “only based on the evidence contained State, Rush v. hearing.” the of the suppression record 403 Md. (2008). 68, 82-83, 939 689 findings

The factual of the its conclu- suppression sions regarding credibility testimony the accepted are clearly review unless erroneous. We the and the evidence may reasonably light most inferences drawn the to the our prevailing party. favorable We own “undertake independent appraisal by constitutional of the record re- it to viewing the law and applying present facts of the case.” (citations omitted).

Id. 83, at 939 A.2d 689 Arizona, Miranda v. In Supreme Court held “that a suspect subject interrogation the right has custodial an attorney consult with and to have counsel during present police explain right and that the to him questioning, must States, 512 United Davis v. questioning begins.” U.S. (1994) 452, 457, 2350, 114 Mi (citing S.Ct. 129 L.Ed.2d 362 Arizona, randa v. 436, 469-73, 1602, 384 86 16 U.S. S.Ct. (1966)), 694 stem from Fifth rights L.Ed.2d These “the Fourteenth prohibition against compelled Amendments’ self- Arizona, 477, Edwards v. 481, incrimination.” 451 101 U.S. (1981) (citing Miranda, 1880, S.Ct. 68 L.Ed.2d 384 U.S. 378 at 1602). 479, interrogation” questioning 86 S.Ct. is “Custodial officers, or or by “any initiated law enforcement words actions (other police of the attendant part normally than those custody) arrest are reason police should know ably likely response to elicit incriminating from sus pect,” person or custody after has taken into otherwise been

130 Rhode any way. action in deprived significant his freedom of Innis, v. 291, 301, 1682, 64 Island 446 100 L.Ed.2d U.S. S.Ct. Miranda, (1980) (footnote omitted); 444, 297 384 86 U.S. S.Ct. 1602.

“If the effectively suspect waives Miranda law receiving warnings, after enforce counsel Davis, question officers are him.” 512 U.S. at ment free Butler, North Carolina v. 441 U.S. (citing S.Ct. (1979)). 372-76, 60 L.Ed.2d State can S.Ct. waiver Miranda by showing “that establish an effective by warning and that it given was understood accused,” followed an uncoerced by by statement accused. Thompkins, 2250, 176 v. 370, 384, 130 U.S. Berghuis S.Ct. (2010). suspect if a requests any L.Ed.2d 1098 “But during interview, subject he to further time until a has been questioning lawyer made available Davis, himself 512 U.S. suspect reinitiates conversation.” at added) Edwards, 458, 2350 451 (emphasis (citing 114 S.Ct. 1880). 484-85, 101 U.S. at S.Ct. of suspect’s right invocation to have coun Id. at present unambiguous. must be 114 S.Ct. 2350.

sel minimum, that can “requires, This a some statement rea a for sonably expression construed be an of desire Wisconsin, Id. v. attorney.” (quoting of an McNeil assistance (1991)). 171, 178, 2204, 115 501 111 158 U.S. S.Ct. L.Ed.2d his an accused has invoked to have right “[W]hen counsel during interrogation, present custodial a valid waiver right by showing only responded cannot be he established police-initiated further custodial if he interrogation even has Edwards, advised his 451 U.S. at 101 rights.” been procedural 1880. Unless adhere police S.Ct. to these statements, “the safeguards, prosecution may whether pse exculpatory stemming inculpatory, from custodial interro Miranda, of the gation defendant.” U.S. S.Ct. 1602. suppression case,

At the circuit court hearing that Mr. lawyer found demanded see a “two four times” while he was the holding cell awaiting interrogation. The circuit court concluded that these qualify demands did not as an invocation of right to Miranda under they because did not “in occur the context of custodial interro- gation,” but in custody rather “while interrogation before took place.”

Mr. Gupta argues that his for demands a in the lawyer while holding prior cell interrogation were sufficient to trigger Miranda safeguards because they occurred while he was in custody interrogation Furthermore, “imminent.” Mr. Gupta asserts that the detectives knew or should have known that he lawyer wanted see a because the officer who had been him in monitoring the holding relayed cell his requests detectives, to the and because Mr. Gupta responded to being rights by advised his asking, I get do “When talk ...” being interrupted by Detective Hamill. The responds State Gupta’s pre-interrogation requests lawyer a do not an invocation of constitute to counsel under Miranda because cannot suspect invoke that right “anticipatorily,” outside the context interrogation. custodial In addition, the State asserts that it is irrelevant whether the detectives knew that Mr. Gupta had been demanding lawyer before the interrogation began, because nothing prevented him from reasserting requests those after being advised of his Miranda rights subjected questioning. Wisconsin, McNeil v.

In Supreme Court noted that it had “in fact never that a person held can invoke rights anticipatorily, in a than context other ‘custodial interro ” gation.’ n.3, at 182 U.S. S.Ct. 2204. The Court also cautioned, fact allowed Miranda “The that we have the right counsel, to asserted, once to be effective with to respect future interrogation necessarily custodial does not that we mean will allow to initially be asserted the of custodial outside context similar future effect.” Id. interrogation, with Similarly, Court has made clear that “in order for the Miranda safe guards effect, to take there first exist must ‘custodial interro ” State, v. gation.’ (2004). Fenner 1, 9, 381 Md. 846 1020 A.2d

132 has defined what nor this Court Supreme the Court

Neither However, interrogation.” of context “the custodial constitutes Appeals of have in the Court Special of cases number his or attempting of to invoke suspect the issue addressed analysis our begin so we her Miranda rights anticipatorily, of those cases. an examination State, First, Marr v. appellate the intermediate in brought that is about compulsion’ that ‘inherent “[t]he noted is for interrogation crucial custody of by the combination 152, 173, Miranda rights.” Md.App. of 134 759 attachment (2000). quoted above-quoted The court then A.2d 327 McNeil, that “at five explained least language from subsequently interpreted appeal [] [this federal courts not invoke the may that an individual language] mean or is begun has interrogation to counsel before right added) (citing (emphasis at 759 A.2d 327 imminent.” Id. (11th Grimes, 142 F.3d Cir. v. 1347-48 United States (2d 1994); Thompson, v. Cir. States 1998); 35 F.3d United Cir, v, Redman, 1994); United (3d States Alston F.3d 1237 v. (7th 1994); United States LaGrone, Cir. F.3d 332 v. 1992)). (9th discussing Cir. After Wright, 962 F.2d held that cases, Special Appeals the Court federal oc right of his invocation appellant’s purported custody, in and therefore appellant was curred before Fifth Amendment operate invoke “could holding, on this Id. 759 A.2d 327. Based counsel.” “whether, custody, addition address court declined or at least imminent before interrogation must be actual be invoked.” Id. can right to counsel State, Costley v. Next, Special Appeals noted Court custody, McNeil absent language suggests that “the 90, 111, 926 Md.App. A.2d interrogation, insufficient.” 175 (2007). case, at the there some In evidence to speak hearing requested appellant suppression holding him a from the attorney placed an officer who 99, 926 interrogation. Id. 769. Once the prior cell those did reiterate interrogation began, appellant was absent Id. attorney. interrogation Because requests

133 at appellant requests, the time the made his the court held that “any request placed to the officer in appellant who Id. holding 112, cell was 926 ineffective.” at A.2d 769. of Appeals The Court Special addressed similar scenario v. There, State. the appellant to call requested Hoerauf mother, told officers that his attorney, mother was an holding times while in a cell prior interrogation. several 178 292, (2008). 304-05, 941 A.2d 1161 Md.App. The court held that, assuming requests “clearly expressed these appel [the counsel,” for the they lant’s] desire assistance were none theless to constitute an insufficient invocation of his Miranda 318, counsel. Id. 941 right 1161. The A.2d court noted “all requests by appellant such were made prior being in the room placed interrogation questioned by Detective Sofelkanik,” entry and “at no time from his into interroga tion room of his completion appellant until statement did mother, or speak ask with his otherwise request assis tance of counsel.” Id. P.,

Later, in In Darryl re the intermediate appellate court reiterated the sentiment McNeil package “[t]he entire Miranda protections special is to the context of confined interrogation. They custodial ... may anticipa be invoked (2013). 1142 torily.” Md.App. 211 63 A.3d The court Maryland following Jezic, from quoted also statement Confessions, Law § “A 12.4: invocation of the suspect’s right to counsel must made in context of be interrogation or when custodial interrogation, custodial added). Id. imminent.” 1142 (emphasis A.3d explain phrase, did have occasion define however, it ultimately held that there “no indica because was appellant custody tion that the ever in order to placed a Mi therefore he interrogated,” acquired “never randa-Edwards Id. counsel in first place.” State, v. Williams recently, Special the Court of

Most Mi- held—for first time—that Appeals appellant’s randa rights though interrogation had attached even “actual 295, 322, had not yet Md.App. commenced.” (2015). (2014), 452, 128 grounds, 445 A.3d 30 on other Md. aff'd detectives, “I case, In that don’t want appellant stated being by I know say interrupted don’t ...” nothing. 309, 100 made Id. at A.3d 1208. At time he detectives. comment, into the appellant already had been taken begun interrogation asking ques room and the had detectives tions, did not constitute be questions interrogation but the they to illicit re designed incriminating cause were addition, 322, 100 A.3d In one detective sponse. Id. at 1208. that be appellant multiple they had told the times would rights, formality him that reading his Miranda because could they go through they begin talking. Id. in distinguished court those

The Williams these facts from Costley present “these circumstances because Hoerauf of ‘in- ‘compelling atmosphere’—and corresponding danger its herent Miranda was ex- compulsion’—that prophylaxis Marr, 134 guard against.” (citing Id. pressly designed 327); (characterizing at A.2d Md.App. 173, 759 see also id. as, in his holding “where the does not invoke suspect Hoerauf room,’ entry interrogation ‘his his right after into the Miranda valid, ie., such was not prior invocation was invocation Therefore, in of interrogation”). made the context custodial com- “that appellate appellant’s intermediate concluded ” ment was ‘in the context of Id. interrogation.’ made custodial 322-23,100 McNeil, n.3, at 182 (quoting at U.S. 2204). 111 S.Ct. of appeal, Appeals’

On this Court the Court Special affirmed Williams, judgment appel but not address whether the did interroga lant’s occurred comment context custodial Instead, 483, we for tion. 128 A.3d “assum[ed] Md. 30. analysis the sake our the instant case 30, rights were id. at 128 A.3d held implicated,” but invoke appellant’s comment was insufficient to nonetheless silent, ambigu the comment was remain because dissented, believing judges ous. Id. 128 A.3d 30. Three ambiguous. that the comment Id. at was not appellant’s J., (McDonald, In conclu dissenting). reaching 128 A.3d its sion, the agreed dissent reasoning with the of the Court of Special Appeals that the comment “was made in the context of custodial interrogation.” 486, 128 Id. at A.3d 30.

Our review these cases reveals that this Court has never squarely meaning addressed the of “the context of custodial interrogation” or the circumstances under which interrogation may be said to be “imminent.” Similarly, while the Court of Special Appeals has addressed these concepts a number occasions, it yet has to provide a precise definition for these terms.

Here, again decline to offer a precise definition “the context of custodial interrogation,” a precise because definition unnecessary to resolve the question presented on Thus, the facts of this that, ease. we hold may while there some instances in a suspect which could invoke his Miranda rights post-custody see, but pre-interrogation, e.g., Williams, at Md.App. this case falls well outside scope of any permissible definition of “imminence” in the sense of an impending interrogation.

As in Costley and Mr. Hoerauf, Gupta’s requests lawyer came when he in a cell, was still holding any before interrogation taken place. had The requests were made an to him, officer who guarding was rather than the detectives who questioned later him (although the relay officer did the mes- detectives). sage to the At no time after entering interro- gation room until the of fifty-five-minute end interrogation Mr. Gupta did ask for the assistance of counsel. See Hoerauf, Md.App. 941 A.2d 1161. Furthermore, Mr. Gupta’s requests for a lawyer occurred at a.m., 5:05 according to Officer Richardson. Detectives Hamill Fumagalli and arrived between thirty later, ten and minutes and the interrogation not begin did until a full three hours Gupta after Mr. exclaimed his demands from the holding cell. not, This is in any word, sense of It “imminent.” irrelevant whether the detectives Gupta knew Mr. had been for a asking lawyer before the interrogation began, rights because the Miranda to counsel silence “must be they to take the action seeks government when the asserted 2204. McNeil, n.3, 111 at 182 S.Ct. against.” U.S. protect lawyer, to see a Gupta’s requests Therefore, hold that Mr. we interrogation, were made holding prior cell while made thus did interrogation, and the context of custodial outside to counsel. of his Miranda right constitute an invocation his contention that Gupta’s Mr. Finally, we address ...,” being interrupted I to talk get do before asking, “When his pre- to whether is somehow relevant Hamill by Detective as an invocation Miranda. comments served interrogation the time this statement dispute do parties statements), subjected (unlike Gupta was earlier Mr. made Miranda rights his and therefore interrogation, to custodial into taken him had point, At that detectives had attached. questions him room, they had asked about interrogation mind, they had read background present his state him his Miranda rights. that this statement Gupta to the contends

But extent Mr. served comments pre-interrogation affects whether his reject counsel, that contention. right invoke his Miranda knew the detectives that, what regardless reiterate We required Gupta was still interrogation began, rights his present have counsel assert desire after the action attached, seeks take government or “when the McNeil, n.3, 111 at 182 S.Ct. 501 U.S. protect against.” they 2204. contends to the extent Mr.

Additionally, his was itself invocation statement if we were to counsel, as well. Even reject we that contention question, finished his Gupta that Mr. have assume would lawyer, for a ...,” by asking I to talk get do “When else, would not Gould, this still parents, anyone his Ms. to of a unambiguous expression desire type the have been our prece- Court and Supreme that the present have counsel 459, 114 Davis, 512 U.S. at 2350 S.Ct. See require. dents (“[The have counsel his desire to suspect] must articulate officer police that a sufficiently clearly reasonable present 137 statement circumstances understand the would State, Ballard v. request attorney.”); 480, for an 420 491, Md. (2011) (“In short, 24 A.3d 96 from the if, perspective of a officer, suspect’s reasonable not an unambigu- statement counsel, or unequivocal request ous for then the officers have him.”). obligation no At stop questioning most, if the Gupta detectives Mr. to finish his going ques- knew that was by asking tion it lawyer, “good about a would have police been practice interviewing clarify officers to whether or not he actually attorney,” an but detectives want[ed] are not Davis, required “clarifying ask such 512 questions.” at U.S. Ballard, 2350; see also 420 Md. at S.Ct. 24 A.3d Davis, 2350). (citing at U.S. S.Ct. And while recognize Gupta we that Mr. was cutoff by mid-sentence Hamill, way Detective so that have no knowing we what he going say, nothing prevented was Mr. Gupta request- from ing other lawyer any during fifty-five-minute time interrogation. If he assistance of wanted the counsel before speaking detectives, he many opportunities to say so.

Instead, that Mr. Gupta’s we conclude actions after stating that he understood his Miranda rights—cooperating with the answering questions—constitute detectives and their an im Berghuis, 384, 130 plicit rights. waiver 560 U.S. at those Cf. (“Where that a Miranda prosecution S.Ct. shows warning by given accused, and that was understood an implied accused’s uncoerced statement waiv establishes silent.”). Accordingly, er right Gupta’s to remain Mr. Fumagalli statements Hamill Detectives were not violation of Miranda. obtained invoke his Because did not any interrogation, have counsel time his present during hold that denying the circuit court did not err in motion to suppress during statements he made detectives interrogation. error, found no Having we need reach argument any purported error was harmless. State’s

CONCLUSION In we hold that court erred when summary, the circuit first juror’s off the without responded inquiry to a record the of the communication and them notifying parties providing 4-326(d)(2)(C). as Rule input, by an for opportunity required However, the circuit court did this error was harmless because parties opportunity input, the subsequently provide record, counsel’s on the before proposals considered defense juror’s juror finally acting inquiry by dismissing on the addition, circuit court deliberations. In we hold the Mr. denying not err in motion to the Gupta’s suppress did during interrogation, statements he made detectives Miranda unambiguously Mr. because did assert his present any time the interro- right during have counsel affirm gation. judgment of the Court Accordingly, Appeals. Special OF THE OF COURT SPECIAL APPEALS

JUDGMENT TO BE PAID BY AFFIRMED. COSTS PETITIONER. Barbera, McDonald, C.J., JJ., Adkins concur. J., C.J., by Adkins, Barbera, Concurring Opinion which McDonald, J., join.

Respectfully, Majority, I with of the judgment concur of the Miranda issue. would its I disagree analysis but Gupta’s not reach Miranda question whether Mr. were, to counsel violated if it because even statements he seeks his trial. suppress during were never admitted I importantly, addressing More write separately because in issue, interrogation the merits Majority validates Miranda suspects’ rights. practices erode for a is to remedy deny violation the State chief, ability case in use defendant’s statements its may still to impeach but statements be used the defendant. Oregon Hass, v. 722-23, 1215, 714, 420 U.S. 95 S.Ct. York, Harris (1975); v. New L.Ed.2d 570 224- U.S. (1971). Here, Gupta’s S.Ct. 28 L.Ed.2d 1 interrogation him dur only impeach statements were used ing cross-examination, which would have even permitted been if the trial suppressed statements he made during interrogation. Any controversy that existed due Gupta’s suppress denial of Mr. motion to mooted when only impeach Therefore, statements used to it were him. is merits of necessary address the Mr. Gupta’s conten tions.

I am concerned that its through analysis Mr. Gupta’s of arguments Majority opinion will encourage interrogation practices infringe that on suspects’ Gupta Miranda rights. claims that to invoke his attempting right he was Miranda counsel when was interrupted by he mid-sentence Detective conduct, Hamill. Regarding this that Majority concludes “nothing prevented Mr. from a at requesting lawyer any during other the fifty-five-minute interrogation. time If he wanted the assistance to the detec speaking tives, many opportunities say Op. 136, he so.” at Maj. 156 A.3d at The conclusion Majority’s 804. the fact overlooks in common interruption, general, police interrogation is a al., technique. Interviewing M. Kassin See Saul et Police Interrogation: Survey A Self-Report Police Practices and (2007). Beliefs, 31 & Hum. 381 This is technique Law Behav. taught in most used widely police training of the officer one programs. Corner: Reid E. Reid Technique,1 John Critics Inc., Assoes., https://www.reid.com/educationaLinfo/eritic & (last 2017) 15, technique.html March [https://perma.cc/7 visited KEY-86U5]; Kassin, Indeed, according also supra, see 388. objec study, “[¡Interrupting suspect’s to one a denials interrogation tions” tech commonly is the most used eighth Kassin, supra, at Hamill testified at nique. 389. Detective even suspect is her hearing interrupting a suppression “methodology.”

Although interruption and ac- methodology effective it it individuals’ ceptable, hamper not be used should Supreme aspects 1. The several The Reid Tech- U.S. Court discussed 436, 1602, Arizona, nique in 86 16 L.Ed.2d Miranda v. 384 U.S. S.Ct. (1966), police psychological 694 used to illustrate coercion 448-55, interrogations. 86 1602. Id. S.Ct. 140 exist as a warnings of their Miranda Miranda rights.

exercise inter atmosphere to the coercive custodial counterbalance Arizona, 436, 467-70, 86 v. U.S. S.Ct. rogation. 384 (1966). A invokes 1602, defendant 16 694 L.Ed.2d to have counsel if his desire attorney “articulate[s] he officer police sufficiently clearly that reasonable a present to be the statement would understand the circumstances States, 452, v. United Davis U.S. attorney.” for an request (1994). In applying 129 L.Ed.2d S.Ct. standard, this Court has examined officer police reasonable made. See context which was and the the statement both (2015) 476-77, A.3d 30 State, 445 Md. Williams v. nothing. I don’t say “I don’t want the statement (analyzing colloquy”); of an “extended part and as in isolation know” (2011). In State, 420 Md. 480, 493-94, A.3d 96 v. Ballard circum the same Ballard, officer in reasonable we held sayI no mind if “You statement stances would understand to be an attorney to an this” just talk about more and 493-94, Ballard, 420 at for counsel. Md. unambiguous request alone the statement concluded that Although 96. A.3d coun Miranda right to suspect’s to invoke was sufficient question, follow-up that detective’s “What sel, we found response, “I’d suspect’s and the going that have?” benefit is Id. at one,” holding. our feel more comfortable with bolstered to the one we used approach 96. a similar Using that a criminal Ballard, Court held Georgia Supreme though a even remain silent defendant invoked said, don’t him he “I interrupted officer after want police 207, 210 State, v. 569, 570 S.E.2d ....” Green Ga. talk “[Wjhatever (2002). of a definition proper It explained, phrase might be, police must officer’ ‘reasonable actively seeking interrogators contemplate are not who rights.” suspect’s ignore interrupt assertion and/or added). I agree. Id. at n.10 (emphasis after interruption occurred—seconds Here, given when Gupta his Miranda reading finished Mr. Hamill Detective understood that police officer have would rights—a reasonable ...,” to talk he get do I began saying, “When Gupta when Mr. rights. a attempting was assert his if Even reasonable may officer been attempted have unsure whether was an invocation, Gupta’s pre-interrogation Mr. for requests any ambiguity. resolve Although Detective Hamill did not Gupta’s remember whether she was told about prior Mr. room, requests, Fumagalli, Detective who was in the also testified that she them. was whether she aware When asked if there was a “substantial probability” Gupta knew Mr. off, if going lawyer ask she did not him cut even “it acknowledged possibili Detective Hamill is a certainly the timing—only after ty.” finishing seconds warnings—and this testimony, Majority’s undercut asser prevented tion that “nothing requesting from lawyer any during interrogation” other time the ... be repeated, just her own if methodology, may cause have done Maj. 136, 156 Op. that. A.3d at 804. Judge Judge

Chief Barbera McDonald have authorized they agree me state that forth in views set herein.

156A.3d 807 CAIN, Jr. Clifford

v. FUNDING, LLC MIDLAND Term, Sept. No. Appeals

Court of of Maryland. Filed: March notes the State’s burden establish maintains that he prejudicial, violation record satisfy burden based the State is unable violation any potential responds us. The State

Case Details

Case Name: Gupta v. State

Court Name: Court of Appeals of Maryland

Date Published: Mar 24, 2017

Citation: 156 A.3d 785

Docket Number: 36/16

Court Abbreviation: Md.