Harper v. State

A.2d Anthony Leon HARPER Maryland.

STATE Term, Sept. No. 2003. Special Maryland. Appeals

Court of

April 2005. Forster, Abel, Washington, (Nancy Jason A. DC Public S. Defender, brief), for on appellant. (J. Curran, Jr., Avery Gen.,

Shannon E. Joseph Atty. brief), for appellee. MURPHY, C.J., DAVIS,

Argued before and DEBORAH S. EYLER, JJ. EYLER,

DEBORAH S. J. juryA in the Circuit Court for Prince George’s County McClain, convicted Leon Anthony Harper, Francis a/k/a appellant, robbery, theft of property valued at less than $500, assault, second-degree making false statement to a police officer. The merged court the theft and assault convic- conviction, tions into the robbery and sentenced the appellant years in prison, years with all suspended. but It imposed a sentence, six-month prison to be served consecu- tively robbery sentence, for making a false statement. On appeal, presents questions, two which we have reworded:

I. Did the hearing court err his denying motion to

suppress his confession? II. the Did trial court err by refusing to sever the false

statement charge? reasons, For the following shall judgments we reverse the and remand the case the circuit court further proceed- ings, based on analysis our of Issue I. We shall address Issue II because it is likely to arise on remand.

FACTS AND PROCEEDINGS The convictions this case stem from an attack that just occurred before on May 13, 2003, 8:00 a.m. outside Marlboro. The vic- Elementary Upper School in Arrowhead teacher, to the tim, walking parking from the lot a was A man accosted her day. of the school building at the start fall to ground. her to the purse, causing and her grabbed kicked the man purse, would not release When the victim purse. off in the head. He then ran with her the school had a man near employee A school who seen man to of the gave description the attack shortly before later, appellant saw the days employee police. Eleven street, or three miles two under a tree the side of sitting man had was the Believing appellant school. from the attack, of the morning the school on seen outside appellant officer. The was police down a employee flagged There, identifying station. police and taken to the arrested McClain, inculpatory he made an statement himself Francis as Brew. to Detective Charles an that “Francis McClain” was later learned

The police theft of robbery, charged The was with alias. assault, $500, second-degree and than valued less property teacher; a false making and arising out of the attack on he was statement, of his of an alias when arising out use police. questioned by apprehended his trial, inculpatory moved to suppress the appellant Before hearing, evidentiary After an to Detective Brew. statement trial, motion. At the statement the court denied the objection. into evidence over admitted

DISCUSSION I. Hearing Evidence Suppression

Overview at the hear- suppression as follows Brew testified Detective May p.m. at about 5:00 was arrested ing. station directly police transported He was 2003. room. placed interview Kelly Rogers

At 6:45 Detective him of p.m., advised his Miranda rights.1 appellant identified himself to Detec- Rogers McClain, tive as Francis that name on an signed of Rights placed “Advice and Waiver Form.” He checks and form, “F. initials Me.” next to on the questions indicating rights statement, that he his understood and wanted make a anything, and that he had not been promised any offered benefit, or reward or threatened in In any way. response to question, you “Are under influence of or drugs alcohol time,” at this “yes.” Rogers he checked Detective handwrote on the form that the he “had appellant ago said a beer 3 hrs. ” ‘blunts,’ marijuana smoked 2 cigarettes. & or The form was admitted into evidence.

In response to questions by Rogers Detective about the robbery, appellant any denied involvement in the crime. Rogers Detective appellant’s transcribed the oral responses statement; into a written the appellant sign did not statement, however. then Rogers appellant Detective left the alone in the interview room. The transcribed exculpatory statement was introduced into evidence the hearing.

At p.m., 8:45 Brew Detective entered the interview room. The appellant was asleep and had be awakened. He was “[cjooperative, but in and fading out because he was tired. He kept falling asleep.” The appellant identified himself to De- as tective Brew Francis McClain.

Detective Brew asked the if he “had some sort of condition” that needed medical attention. The an- that he swered be all right. He told Detective Brew that he was hungry thirsty. The detective him gave coffee and a candy bar.

The appellant appeared to Detective Brew “to be intoxicated influence[,]” i.e., [to] under the “[h]igh.” seemed His “eyes glazed were over” and Detective Brew could “smell the marijuana on him.” While the appellant’s “demeanor Arizona, 1. Miranda v. 384 U.S. 86 S.Ct. L.Ed.2d 694 (1966). ... there not a under the influence was being consistent with to He beverage go an it either. strong odor of alcoholic with it, some with but it was not as doing drinking have been may drunk.” falling if he was down Brew, although the appellant to Detective

According some substance or the influence of seemed to be under substances, every- to understand appeared he nevertheless to responded appropriately to him. He that was said thing he could read and write. and said questions below, Brew and the in detail Detective As we shall recount drug and appellant’s problem some about the appellant talked treatment. drug already that appellant Brew told the witnesses

Detective outside robbery in identified him connection with had School; therefore, his real interest Elementary Arrowhead suspect out knew about appellant what finding was the ap- The detective entirely questioned different case. back suspect, that but steered conversation about pellant told the appellant: to He then robbery. stalked, they they have been often feel

[Victims for for some action singled being out attacked have been That, oftentimes, like to the victims would they did. lives, they can on with their go so that some closure have to, I to the apologize he he could victim that if wanted closure. to them have some help relate it the victim could statement: following then dictated The I it wasn’t intentional. happened, time that this At the I do for any way. apologize mean to hurt you didn’t I not I caused. did injury may harm or have whatever I was under the you. kick Due the fact that intentionally I time, right in the mind and at the I not influence was money my habit. needed hand this statement apology transcribed

Detective Brew George’s County entitled “Prince the first form page onto Victim/Witness/Suspect.” Statement of Department Police signature, for the but appellant’s contained a line page The sign did not it. form, the second handwrote page

On Detective Brew questions two about the location and time of the attack. The declined questions. to answer Under the second statement, handwrote the question, appellant’s detective “I wrote, stop want to on this for now.” Detective then “I Brew gave permission Det. this for me.” appel- Brew write signed lant the name “Francis McClain” under that sentence added, “Because in & out sleeping.” Finally, wrote, Detective “Have you pres- Brew been treated fairly, detective, sured talk to this mistreated in any way?” The appellant responded simply, “No.”2 The inculpato- transcribed ry apology statement was admitted into evidence at the hear- ing.

The appellant suppression testified at the hearing. He said he did not remember much of police what occurred at the station because he was under the influence marijuana, of alcohol, cocaine, and and out” “going and of sleep. He recalled both telling detectives that his name was Francis McClain, however, and that he explained did so because he knew he of “had violation probation.” He also recalled signing “Advice of Rights and Waiver Form” and making exculpatory statement He Rogers. insisted, Detective however, that he Rogers told Detective that he was under the marijuana, alcohol, cocaine, influence of and and did not tell her that he had only consumed one beer and two “blunts” several hours before his arrest.

Of his Brew, interaction with Detective the appellant re- being membered given bar, and, coffee and a candy as we discuss, shall talking drug about his problem and drug treat- Brew, ment. He also telling remembered in general Detective terms, that he like to I say apologize “would for any inconven- may ience I caused anybody!,]” have suggesting that he never specifically apologized the victim. shown the apology When Brew, however, statement transcribed Detective appel- said, lant “I guess that’s the statement I him. gave Like I appellant 2. The suggest does not corresponded only that his answer question, you fairly....” "Have been treated I twelfth him, myself. got it have I could have wrote told At the years college.” a half of and and education two grade years was 37 old. hearing, time of the Hearing Appellant’s About The Evidence Suppression Drug Treatment Drug Problem suppres- at the adduced As evidence was previously, noted and the discussed Detective Brew hearing that sion treatment. topic drug of drug problem appellant’s of Detective in on cross-examination first came The evidence Brew: you tell appellant] time you any [the Did

Q.... drug him treatment? get any type could through the programs that there are I indicated A. No. ], up I him not that could set but Correction[ Department No. them. programs told him that there you you And said were Q. said? you at DOC? Is that what A. Yes. told him that you it never your testimony And is

Q. program? into any type him you get could I I it. I think said I him could do I don’t think told A. the State’s get through to him some might be able that we are programs Probation or that or Parole & Attorney through run them. it, but be able you might couldn’t do Okay. So

Q. Attorney or— through State’s Right. A. him that? say help that could with you you did

Q. And that, into a him to get I talk to them about A. could program. you mean?

do What Parole Attorney him the State’s that Q. you But told help him? be able might & Probation A. Right. examination,

On redirect Detective Brew elaborated: Well, lot I of times when deal with I feel individuals are under the influence or maybe doing the crimes because of drugs, ten, nine times out programs are there. They just However, don’t want to do I them. let them know if happens, they whatever into the criminal get justice system, that either through Department Corrections, Office, the State’s Attorney’s programs can be estab- lished through they the courts once are in the system. That if they want the it is help, there. testified, direct, as follows:

Q. exactly What did Detective tell you Brew drug [about treatment]?

A. He said he could me in a help get drug program and he would talk to, to the State’s it Attorney about and try you know, get some. I statement, Because if make a would me help out.

According the appellant, Detective him got Brew some (the bar; coffee and a candy and he appellant) then made the statement, apology which the detective wrote out. The appel- lant’s testimony continued:

Q. why So did tell you [Detective this [the con- Brew] tents of apology statement]? said,

A. I Like he said that he could me out I help like, know, was you giving statement, aup you know. Q. your So is it testimony you gave him this state- ment because he helpful to you you and he told that he you help get program? into Yes,

A. ma’am.

Q. And he talked you about drugs?

A. Yes.

Q. And he you told about types different of programs? Attorney about he’d talk to State’s just

A. He said doing, you of helping get program. into a Instead me know, time, know, you help getme into a he would some way go through none I have to drug program, won’t that. of added.)

(Emphasis cross-examination, appellant repeated the outset of At thing: the same much jail no

Q. you promised Brew] say [Detective So did time? drug program, where- get He he would me say

A. did as, do much time. I have to as wouldn’t to do as much time? you wouldn’t have

Q. Where Yes, A. ma’am. know, could have drug program

Q. you for all So anything about say He didn’t years jail. after ten been jail? place going you drug program in a getting taking place it specifically A. He never said would that he say I am he did would jail, saying but going way he could. me out the best help way he could. you He out the best Q. help A. Yeah. he do? in what could

Q. specific But he wasn’t specific enough That’s drug program. A. He said me. Brew the one who added that Detective treatment, saying help “could subject drug

raised the out,” drug did not discuss they specific and that appellant] [the concluded as follows: programs. Cross-examination talk to you tell that he would Q. Brew] Did [Detective Probation about or Parole & Attorney Office State’s drug program? to the about he would talk State’s something

A. He said me out. Attorney helping about

71 Appellant’s Contentions The appellant inculpatory apology contends his statement to involuntary law, Brew Maryland Detective was under common the Fourteenth Amendment of the United Constitution States, 22 of and Article Declaration of Maryland Rights, and hence should have been He makes suppressed. three arguments in regard.

First, the involuntary statement was non- Maryland under constitutional it law because was induced an improper benefit, is, promise special Second, drug treatment. the statement involuntary was under Maryland non-constitu- tional his law because intoxicated and sleep-deprived state rendered him so mentally impaired that he did not know understand what he was saying. for the Relatedly, same reasons, his statement not freely given and willingly test, under totality of the circumstances and therefore was involuntary Maryland under and federal constitutional law. Finally, his involuntary statement was under federal constitu- waive his Miranda tional because he did not properly law rights, in that he was advised of the in an rights while state, and, and event, intoxicated in sleep-deprived mental any was not properly rights Brew, re-advised his by Detective after being sleep. awakened from

Law of Confessions Only voluntary confessions are admissible evi State, Knight v. 517, 531, dence. 381 Md. 850 A.2d 1179 (2004). In order be deemed voluntary, and hence admissi ble, a confession must the mandates satisfy Constitution States, of the United the Maryland Constitution and Declara of Rights, tion the Supreme Court’s decision Miranda v. Arizona, and Maryland non-constitutional law. Id. at 532, 86 State, v. Winder 1602; 275, 305-06, S.Ct. 362 Md. 765 A.2d 97 (2001). Maryland law, Under non-constitutional a confession “ ‘freely voluntarily

must made at a time when [the ” knew and understood what was saying.’ Hoey defendant] 72 (1988) (citation 481, State, 473, 536 A.2d 622

v. 311 Md. omitted). 531-32, Md. A.2d at 850 Knight, supra, See also Similarly, pass federal and consti- Maryland in order 1179. muster, voluntary, knowing, must be tutional confession Miranda, 444, at supra, U.S. intelligent.3 generally See Winder, 305-06, 1602; A.2d 97. 362 Md. supra, 86 S.Ct. (2002) State, v. 368 Md. Gray also See (“Article has Rights gener- Declaration of Maryland of the materia with its federal recognized being pari been ally as 233, 246-47, 513 307 Md. counterparts”); Lodowski (“ (1986) against compelled self- privilege 299 ‘[T]he A.2d long 22 ... has as recognized in Article been incrimination ”) (citation federal counterpart’ with its being pari materia omitted). the the State bears burden challenge, a Upon proper “ affirmatively inculpatory ‘showing [the defendant’s]

of Winder, freely voluntarily and made....’” statement was omitted). (citation the 306, 97 If Md. at 765 A.2d supra, 362 motion, “the must pretrial in a State challenge is made by of the statement a preponder the voluntariness establish of Id. ance the evidence.” in of the defendant’s the voluntariness

Ordinarily, the totality on a statement is determined based culpatory circumstances test: a upon to determine whether

In cases where we are called voluntarily, generally made we look has been confession totality affecting interrogation of the circumstances Maryland and only significant common law 3. "The difference between State, emphasis.” Young principles may v. be a matter of constitutional 2, (1986). 121, has Md.App. 129 n. A.2d 599 This Court 510 Maryland regarding devel- explained common law confessions that the " involuntarily given are inherent- oped from die view that ‘confessions ” omitted). (citation and ly The State federal constitu- unreliable.’ Id. however, designed, provisions regarding confessions were tional police power individual [and] a "the exercise of strike balance between C., 580, Md.App. rights.” generally Re David Id. See In Joshua 4, (1997) (“It determined that has never been n. 698 A.2d 1155 Maryland and law standards under nonconstitutional voluntariness same”). Maryland precisely are constitutional law federal and and confession. We look to all of the elements of interrogation to determine whether a suspect’s confession given freely through to the police exercise of free will or through was coerced the use of improper means. On the non-exhaustive list of factors are the length we consider conducted, interrogation, the manner in which it was police the number of officers present throughout the inter- rogation, age, experience and the education and of the Maryland “no suspect. requires law confession or other significantly incriminating remark allegedly made him, against be used as accused evidence unless it first be of any shown to free barnacles may coercive have attached by improper means to from prevent expression being voluntary.” (internal omitted).

Id. at 765 A.2d 97 citations is

When confession “preceded accompanied by or however, threats promise advantage,” those factors are decisive,” “transcendent confession will be involuntary deemed “unless the can State establish that such threats or promises way no induced [it].” Williams 404, 429, (2003). 375 Md. See also Knight, supra, 381 1179; Md. at 850 A.2d Hillard v. State, 145, 151, (1979). 286 Winder, Md. 406 415 A.2d In the supra, explained: Court of Appeals willWe deem a to confession be involuntary, and therefore inadmissible, 1) if police a or agent officer an the police promises force or implies to a suspect that or she bewill given special consideration from a prosecuting or authority some other form of assistance exchange suspect’s the 2) confession, and the suspect makes confession in appar- on ent reliance the police officer’s statement. 309,

362 Md. at 765 A.2d 97.

The prong standard, first this two-part often test, the called Hillard “is objective an one. We determine whether threat, or a police agent State made a promise, Winder, 311, inducement.” supra, 362 Md. at 765 97. A.2d “The suspect’s subjective belief that he or she will be advan-

74 [hearing way by confessing is irrelevant. taged in some interrogating officers instead determines whether court] threat, or induce- promise, of the made a agent police or an 534, A.2d supra, 381 Md. at 850 1179. Knight, ment.” ac- occurs when ‘an promise “An or inducement improper told, inculpatory that an implied, making or it is cused is in that he be advantage, given to his will statement will be ” Winder, Id. (quoting or some consideration.’ help special 97). 308, that at 765 A.2d “Those statements supra, 362 Md. to inducements have involved improper been held have officers either to exercise their interrogating promises to exercise discretion prosecutor or to convince the discretion the suspect.” Knight, special advantage some provide (holding 850 A.2d 1179. one two 381 Md. supra, officer’s statement interrogating cases that consolidated end, line, that, comes to an “if after this case suspect down Attorney you, your can do for with we’ll see what State’s case, promise to exercise your charges,” “clearly with was to convince the prosecutor behalf advocacy suspect’s] [the favor[,]” improper); and thus was to exercise discretion [his] 317-18, Winder, 97 supra, (holding 362 Md. at 765 A.2d try give officer’s statement he would interrogating an from friends of murder victim was angry suspect protection State, 155, 157, Md. 423 A.2d v. 289 improper promise); Stokes (1980) (holding by interrogating that statement officer 552 improper wife an suspect’s that he not arrest was Hillard, supra, 286 Md. at 406 A.2d promise); statement, you are officer’s interrogating “[I]f (holding you” ... I to bat for with telling go me the truth will prosecutor you cooperated “that have prosecutor by telling ..., truth, you and ... I you told me the believe were have concerned[,]” far as the murder was knowledgeable not as 278, 281, Md. improper promise); Streams (1965) offi by interrogating that statement (holding A.2d for if made a statement [you] [you] “it be better cer that would [you] to on put if would [you] they try get because did promise). probation” improper was

75 interrogating When an officer to promises do some of thing that as a matter done all suspects, routine is there consideration, no special is and the is promise therefore not 536, improper. supra, Knight, Md. 850 A.2d 1179 (holding the other of two consolidated cases that interrogat to ing promise suspect’s officer’s to report cooperation prosecutor was not an of improper promise help special consideration because the officer required report, so the suspect and thus “was be exactly treated as other any treated”). suspect would be

Exhortations tell the truth a suspect’s appeals inner conscience have been held not to improper promises. be State, 156, 176, (1997) See Ball Md. 699 A.2d 1170 (holding telling suspect it if “better” he told his story in his Also, own words was not an improper promise). police are permitted subterfuge to use some of amount deception an effort to suspect’s obtain a confession. Win der, 305, 362 Md. at supra, 765 A.2d 97.

“The second prong the Hillard test triggers a causation analysis to determine whether there was a nexus between the promise or inducement and the accused’s confes sion.” Id. See Knight, supra, 537-38, 381 Md. at 850 A.2d (holding the first of two cases consolidated that an interrogating promise officer’s to exercise advocacy suspect’s part prosecutor, with the although improper, did not statement, twice, induce the suspect’s which he made both before and promise); after improper Ralph v. 480, 486-87, (1961).

Md.

A “trial court’s determination regarding whether a confession was made voluntarily question is a mixed law and Knight, supra, fact.” 1179; Winder, 381 Md. at 850 A.2d supra, 362 Md. at 765 A.2d 97. We therefore “undertake a de novo judge’s review the trial ultimate determination on Winder, the issue of voluntariness.” supra, 362 Md. at 310- 11, 765 A.2d 97. “Although we make our independent own ..., appraisal will not we disturb the trial court’s factual findings unless those are findings clearly erroneous.” Wen-

76 76, 84, (2001). A.2d “In 364 Md. 389 gert addition, most light the favorable the evidence we view the motion. In Re party the on prevailing the State” as C., at 698 A.2d 1155. supra, Md.App. David Joshua trial of a of the court’s denial propriety “Our review of the developed the is limited to record suppress motion to evidence at Wengert, supra, 364 Md. hearing.” at the motions A.2d 389.

Improper Inducement case, entire hearing ruling- the instant the court’s In as follows: of inducement was improper on the issue the Defendant’s own mouth was And I heard from what that, to him that he would yes, Brew did indicate Detective but he also drug program, him in into a getting to assist try not have to might him—I -wrote this down—he indicated to what the defense said. do as much time. That’s is.[4] Now, that I don’t what kind inducement know words, prong on the first hearing judge In the found other that, the appellant’s he were to believe the Hillard test if a support finding would not that testimony that testimony, found, the hear- Having made. so improper promise of the Hillard prong not address the second ing judge did test. show, testimony at the excerpts quoted

As the we have to the Detective Brew said hearing about what suppression conflicting. According drug about treatment was appellant that, gave if he a state- said appellant, Detective Brew get- ment, talk about prosecutors the detective would being that program, implying him into a treatment drug ting “hav[ing] in his not to do as would result program such a that Detective appellant acknowledged time.” much While “taking say drug not treatment would did Brew say Brew did jail,” he testified that Detective place going candy giving appellant coffee and bar was 4. added that The court challenge not improper inducement. The does not an point appeal. of being effect in such a program was that jail would not have to “do In any as much” time. event, credited, appellant’s testimony, fully if least would show implied promise that Detective Brew made an that, in statement, exchange he would that the advocate prosecutor exercise appellant’s discretion favor of the re- ceiving a more lenient sentence than he otherwise would. Brew, hand,

Detective on the other maintained that he merely letting was the appellant drug know that treatment him, programs could be available to as they are for others who a part justice become of the “criminal system,” and that he talk to prosecutors would the or DOC run officials who the programs about the appellant’s receiving drug treatment dur- ing incarceration.

The hearing judge did not resolve the conflict in the testi- mony. merely He what appellant’s testimony recounted had been—that Detective Brew that indicated he would try to assist him in a getting into and he program not have to might as much serve time—and concluded that that could not consti- benefit, tute improper promise of a under the first prong of credited, Hillard test. We disagree. If fully the appel- testimony lant’s that established his inculpatory apology state- ment an improper promise by followed Detective Brew.

A police officer’s express or implied assertion a that be suspect given will leniency prosecution or if sentencing he makes a statement is a of promise special a benefit or consideration. In 337, 347, Johnson v. 348 Md. 703 (1998), A.2d 1267 the defendant was arrested and taken to a state trooper for barracks questioning connection with a murder. The interrogating him trooper told that if he con fessed, he “might be able to receive some sort of medical treatment” at a hospital criminally for the insane instead of “being up locked for rest 348, of life.” Id. at [his] A.2d next, 1267. That day and the the defendant confessed to crimes, other but not the murder. On the fourth after day, being transferred a correctional facility asking speak authorities, the defendant confessed to being at the murder made during that the statements The trial court found

scene. involuntary, products improp- as the days were first two benefit, ruled the confession made on of a but promises er admissible, that it not ground on the was day fourth (ie., satisfy did not promises by improper caused test). of the Hillard prong second decision, tacitly Appeals the Court of In that affirming that, defendant if the suggestion recognized trooper’s confessed, being time instead commit- prison he could avoid a promise mental health treatment was hospital ted to (under the improper that was consideration help special Anderson, test). also State v. first of the Hillard See prong trial (Minn.Ct.App.1987) (affirming 404 N.W.2d upon confession find- suppress defendant’s court’s decision if they defendant that he confessed ing that officer told police of prosecution); treatment in lieu arrange drug cf. (D.Conn.1988) Bronson, F.Supp. 884-86 McCarthy as an drug treatment acknowledging promise (tacitly improper holding but may to incarceration alternative the trial court’s supported of the circumstances totality occurred). no inducement that such determination finding, sole that judice, hearing sub the court’s In the case credited, that could not show testimony, if the appellant’s aof bene- improper promise special made an Detective Brew fit, directly indirectly Brew or If Detective was incorrect. that, making for a state- exchange in appellant the promised detective) (the to the ment, prosecuting recommend in a treatment put drug the appellant authorities than he otherwise jail less time so he would serve program serve, leniency to in promise a advocate that was would, behalf, objective under the first appellant’s on the sentencing a to the promise analogous Such is of the Hillard test. prong the in of time that jail for lieu probation to advocate promise in held Streams. Appeals improper Court that the faulty based on the assertion argues, the offered assist found that Detective Brew to hearing judge a that such prison, treatment in obtaining drug in finding necessarily improper promise established that was hearing As no explained, judge made. we have made findings, testimony, other than to conclude that appellant’s credited, if promise.5 would not show an improper event, any

In mere of an an interro evidence offer or prosecuting prison officer recommend to authori gating treatment, suspect ties that a receive drug prison, while to any promise leniency unconnected or prosecution sentencing, or advocate for such is not and of leniency, itself an a improper promise special of benefit or advantage. 25, (2002), In Md.App. Facon v. A.2d 101 (2003), grounds, rev’d on other 375 Md. that, officer interrogating suppression hearing testified statement, an incriminating before defendant made officer drug talked him about his serious habit and the treatment, benefits of drug and told him he would tell the Attorney problem, State’s about although he was not making any that he promises would receive treatment. The defendant testified but did not controvert aspect testimony; officer’s he acknowledged that the officer not was promising him drug testimony treatment. primarily His that he had not any made statement at all. Affirming the denial of the motion suppress, this Court held that uncontroverted evidence that the officer said he would make recommendation to prosecutor for drug treatment was not an improper promise of a benefit special consideration under Hillard.

Other courts that have this addressed issue have concluded In McClinton, (8th likewise. United States 982 F.2d 278 Cir.1992), the defendant argued appeal from convictions abducting young girls interrogating officers had improp- erly induced his confession by promising, among other things, asserts, appellant 5. Just as the incorrectly, hearing that the court found that promise Detective Brew made a appellant to advocate that the treatment, drug incorrectly hearing receive the State that the asserts testimony already court found Detective Brew’s to be credible. We entirety hearing findings have recited the of the court's the issue of improper inducement. acknowledged dur treatment. The officers drug and alcohol that, a hearing develop “in effort to the ing suppression defendant], he not they told him was general rapport with [the drug a that would receive for his person help bad if to them.” 982 F.2d at 283. alcohol he talked problems conviction, that the appellate the court held the Affirming the with collateral health to defendant “his promises help i.e., abuse, “far different drug and alcohol were problems,” in proceeding.” the criminal Id. See promises leniency from in (Ind.1989) (holding v. 534 N.E.2d 1087 also Coates treat try or alcohol arrange drug officer’s offer to to police the subse for did not render defendant’s ment the defendant Miller, 316 N.W.2d involuntary). confession State quent Cf. (Minn.1982) not officers did (holding interrogating to they try the defendant by telling coerce confession committed person if he was the who get help him psychiatric in crime, any leniency in promise the the absence him). deceiving were they or evidence that prosecution bar, drug uncontroverted that In case at it was talked about and Detective Brew treatment for offenders who prison available programs consisted justice system.” “in criminal already are incarcerated is akin to medical treatment in this context Drug treatment special advan- routinely to and is not prisoners, accessible recommend to the authorities An offer to tage benefit. treatment, receive running program assistance, for a is not an offer advocate while an offer of Thus, credited, fully if Detective Brew’s special advantage.6 Hillard, alleged promise in this case those 6. The dissent likens Streams, Knight were Knight, promises The in Hillard and and Winder. they implied interrogating that the officer improper stated or because charges being respect with behalf would advocate on defendant’s brought against promise in Streams was him. The or continued Thus, all prison time. these three cases probation over advocate prosecution leniency in or sentenc- promises to advocate involved i.e., Winder ing, special of the defendant in those areas. treatment give by interrogating promise officer to the defendant involved might against perpetrated him protection physical from harm that part promise improper of the murder victim. relatives testimony only would establish offer to recommend the drug generally appellant for treatment available those by justice system, special incarcerated the criminal not a benefit, and an improper promise. hence would not show improper promise help special

To decide whether an made, consideration was under the first of the Hillard prong test, then, hearing the court needed resolve the factual and dispute between the Detective Brew about what said the drug during interrogation was about treatment and so, a It not is in finding. make did do and this Court no do in position to so. The conflict the evidence can only be assessing credibility resolved the witnesses and by do, weighing testimony, something their we cannot nor should in we. We find ourselves a critical conflict with the evidence no finding by hearing and factual court.

In the of a finding absence factual about what Detective Brew said to the drug during about treatment interrogation, we are unable to make in independent appraisal Harper’s whether confession was voluntary, under the Hillard test.

Tn supra, Lodowski v. that, Court of Appeals held when the record is not sufficient for the appellate court to make an independent constitutional appraisal of a whether defendant’s statement voluntary, was and therefore prop- was erly evidence, allowed into because critical in conflicts evidence were not by resolved factual findings, judgment must reversed and the case remanded suppres- new 257-58, sion hearing and a new trial. 307 Md. at 513 A.2d 299. Lodowski, In the hearing single court made a factual finding on an issue separate from the voluntariness of confession issue, and any did not resolve of the conflicts in the evidence that were important to that Court, issue. The in holding the record would not permit appellate review of the voluntariness “ of the confession, defendant’s observed: ‘This is a not case Hillard,

because it was Streams, promises a veiled threat. The Knight, support do promise Winder not conclusion that the case, Brew, this as testified Detective improper. surrounding the circumstances concerning where the facts is only judge and the task undisputed confession are clearly estab- upon of the confession based voluntariness stan- proper accordance with constitutional lished facts ” (quoting dards.’ 307 Md. at Jackson Denno, 1774, 368, 391, 12 908 84 S.Ct. L.Ed.2d 378 U.S. (1964)). bar, on this record conduct case at because we cannot

In the appraisal appellant’s inculpato- an of whether independent we shall by improper promise, induced ry apology was for pro- and remand the case further judgments reverse hearing a on ceedings. The court should conduct new motion, findings, the factual conflicts with resolve suppression improper Detective Brew made an and determine whether so, and, appellant’s if appellant; to the whether promise by promise. the improper statement was induced apology McColl, 565-66, See, 545, A.2d 813 e.g., Conn.App. State v. 74 (2003) trial denial of motion (affirming suppression court’s 107 finding hearing promised suspect court that detective upon instead of incarceration but further drug program a treatment he the police with because finding suspect cooperated that the of the drug treatment and not because to receive wished of the outcome of the hear- promise). Regardless detective’s Lodowski, Md. is to a new trial. 307 entitled ing, 258, 513 A.2d 299. at Appellant’s

The Mental State his maintains that the evidence about inculpatory apology at the time he made the mental state mentally that his impaired he was so statement showed that voluntarily given, Mary under not have been statement could reason, law, that, this we land non-constitutional involuntary. disagree. statement We should hold that the determining confes step “The first whether Maryland nonconstitutional is voluntary is under law sion mentally of capable whether defendant was determine 481, A.2d 311 at 536 making Hoey, supra, a confession.” Md.

83 deficiency 622. defendant’s mere mental is insufficient to “[A] Rather, automatically make his confession involuntary. defendant, is time involuntary confession when at the only confession, of his mentally impaired is so does not is Id. saying.” know understand what he at 536 A.2d determination, (upholding trial court’s based conflicting as to mental defendant capacity evidence at schizophrenic confession, time of defendant’s that defendant’s confession was voluntary). impairment drugs from or alcohol does

“[MJental se, per not a confession involuntary.” render Hof 581, 620, (1995). Md. the defendant “[WJhether was under influence of a drug giving the time incriminating is a statement factor be considered in deter mining the voluntariness (citing statement.” Id. Town Sain, 293, 307-08, send v. 372 U.S. S.Ct. L.Ed.2d 770 (1963)). may court admit a “[A] confession into if evidence it concludes that it was freely voluntarily made despite the evidence of mental impairment.” 620-21, Id. at (further State, citing Dempsey 134, 154, v. 277 Md. 355 A.2d (1976) 455 (holding that evidence of the defendant’s drinking and intoxication was sufficient to raise a jury question as to confession); State, of his voluntariness v. Campbell 240 59, 64, (1965) Md. 212 that, A.2d (holding 747 while defendant probably under was the influence of narcotics at the time of confession, his that not of itself make the “d[id] confession not State, free and voluntary”); Bryant 531, 535, 229 Md. (1962) (same)). A.2d 190 See also Wiggins v. 235 Md. (1964) 101-02, 200 A.2d 683 trial (upholding court’s deter mination that defendant’s confession and statement were vol untary although made while defendant suffering was from withdrawal, alcohol and stating question crucial “[t]he was not whether he suffering was from the effects of withdrawal them, from excessive indulgences alcoholic when he gave but whether to police his disclosures freely were and voluntari ly made a at time when he knew and understood what he was saying”); McCray, supra, Md.App. at 716 A.2d trial (upholding court’s determination that defendant’s state- voluntary, despite to enforcement officer was defen- ment law time, presented at the dant’s intoxication when evidence the court to conclude that sufficient allow hearing was ” on and going ‘what was around her’ defendant “understood mentally understanding say- what she was capable “was ing”). Brew, although appellant to Detective obvi-

According something, he seemed to under the influence ously was responded appro- said to him and being understand what was Rogers had told Detective appellant The earlier priately. consumed he smoked “blunts” and one beer sometime had two point of his arrest. At the when p.m. day before 5:00 him, the had began spealdng appellant with Detective Brew gotten hours and had nearly station for four police been at the sleep. some he had claimed at the appellant hearing

Although marijuana, alcohol, and cocaine been under the influence Brew, that he Detective and was interviewed when was that he able recount deprived, there was evidence sleep police at the station. great transpired detail what recalled, things, signing the “Advice of among other Form,” Rogers, coffee receiving to Detective Rights speaking Brew, general apology candy giving from Detective may anybody.” Sig- have caused “any inconvenience [he] had the interrogation, nificantly, throughout “Francis consistently use the name of mind presence name, being of his real so as avoid instead McClain” violating probation. his arrested for the motion to explained denying court hearing As suppress:

[Gjiven that of the events recollection appellant’s] [the a of occurred, very he to clear recollection seemed have occurred, I think that the statement was events given knowingly. may on there. He clearly going

He understood what was drugs may the influence of have been been under have on number of occasions as Detective go sleep to to a trying said, clearly knew was on. He going

Brew but he what almost recited for word what Detective Brew said word during proceeding. went on was

The intoxicated mental state one factor appellant’s to totality pertaining of the circumstances voluntariness. was another. evidence his sleepiness His Given the of aware- ness and of what was understanding during said interview recall; of by as reflected his level was afternoon, in the during arrested late not normal sleeping hours, sitting public place; as a and that his of statement was made within five and one-half hours his arrest, hearing judge’s finding the appellant was mentally aware when he made his clearly statement was not erroneous. We are that the appellant’s satisfied mental state have, the time of the interrogation was not such as to in and itself, of rendered involuntary. his statement

Violation of Miranda appellant’s argument that his statement Detective Brew was involuntary because the dictates of Mi randa were not met is Court, properly not before this because it was not or made decided Accordingly, below. the argument 8-131(a). has been waived. See Md. Rule As the Court of has Appeals explained:

The burden upon the affirmatively State establish admissibility confession admission arises [only] upon proper objection.... The requirement aof proper challenge applies to both aspects admissibility-constitu- tional voluntariness and compliance with Miranda’s prophy- lactic safeguards. rights by Fundamental can be waived accused, ... and the right hearing and determination the trial judge admissibility of confession or admission no provides exception. Kidd,

State 32, 38, (1977) (citations 281 Md. omitted). the argument

Had been properly preserved, how ever, we would it without merit. “Miranda im- find

86 traditional test of safeguards on the procedural presse[s] 36, 1105. “The must police at 375 A.2d voluntariness.” Id. interrogation that he subjected to custodial person warn any silent, make any statement he does right has a to remain him, right the and that has against be used in evidence may appointed.” attorney, of an either retained presence to the 1192, Tolbert, 539, 549, 850 A.2d cert. de 381 Md. State — (2004). 263, nied, -, L.Ed.2d 85 125 S.Ct. 160 U.S. effectuation of the Miranda safe “The defendant waive may voluntarily, knowingly is made the waiver guards, provided Kidd, 37, 281 at A.2d 1105. Md. intelligently....” appellant’s rejected reasons that we For the same him necessarily incap his mental state rendered assertion that statement, if reject, voluntary we would making able of capacity” that he lacked the “mental his assertion preserved, found that hearing court rights. his Miranda waive at the transpiring of well aware what appellant was station, hearing suppression and the record of the police See, Clark v. e.g., that determination. amply supports (2001) 540, 581-84, trial (upholding 140 Md.App. waiving of capable that defendant was court’s determination illness). mental rights despite Miranda persuaded by appellant’s Nor would we him to re-advise required that Detective Brew was assertion In determining the interview. conducting before rights his re-advised, courts have been look a defendant should whether Tolbert, Md. totality of the circumstances. See as: We consider factors 850 A.2d 1192. such “(1) the first giving time length between ...; (2) whether subsequent interrogation and the warnings given were subsequent interrogation and the warnings ...; (3) places the warn- in the same or different whether conducted subsequent interrogation and the ings given were (4) ...; the extent or different officers by the same any previous statement differed from subsequent which ...; (5) and emotional intellectual apparent statements the suspect.” state of (citation omitted) A.2d 1192 (setting

Id. at forth non- list). exhaustive

The record of the in the suppression hearing instant case establishes that the to the appellant police was taken station p.m. at about 5:00 and was in an interview room. placed him Rogers rights Detective advised of his and obtained his at signature initials and on an advice form about 6:45 rights She left him p.m. spoke briefly appellant with the and then in p.m., alone the interview room. At 8:45 Detective Brew room, entered the the appellant, interview woke and conduct- Only ed an interview. elapsed two hours between the advise- ment of rights and Detective interrogation. During Brew’s time, that the appellant remained the same room. He was not interrogated by multiple officers. Although appeared he to be under the influence of alcohol or drugs, hearing the court was satisfied that clearly “[h]e understood what was on going The totality there.” of the circumstances did not require the be re-advised rights.7 his Miranda

II. appellant’s false statement conviction based was his upon using alias when was apprehended ques by tioned police. He contends that the trial court erred by refusing sever that count—Count Four —from the counts related to the robbery. He posits that pre “[t]he evidence sented Counts One through Three not would have been statement, admissible at a trial on the false and vice-versa.” The appellant directs this Court to a generic, omnibus prior motion suppression trial, filed hearing and moved, which counsel vaguely among “to things, other sever the trial of his case from that of his co-defendants sever and/or counts.” Counsel did not specify motion which count or counts should severed. The provides us with no issues, opinion, respect 7. In this with to the mental state and Miranda merely rejecting appellant’s argument we are adduced facts hearing compelled finding of involuntariness. areWe not we, commenting, nor proper could about the resolution of those issues if additional evidence about them is hearing. adduced at the new or trial that suppression hearing of the citation to record to sever was ever amorphous indicate that the motion ruling do not reflect a on The docket entries pursued. motion, ruling sought. no indication that a and there is circumstances, not in or the matter was raised Under properly and therefore is not by the trial court addressed 8-131(a). Md. Rule See this for review. See before Court (1974) 151, 156, A.2d 219 Md.App. White v. also motion trial issue was waived when (holding speedy “obscurely trial was speedy situate[d]” dismiss for lack ruling lack of brought and defense never motion written so). attention, do despite opportunity trial court’s matter to event, it is address the issue because any In we shall remand. likely to arise on 4-253(c): Md. Rule

Under by the any prejudiced If will be appears party it counts, documents, or defen- charging for trial joinder of on motion of dants, on its initiative or may, the court own counts, charging trials of docu- any separate order party, defendants, justice as ments, any other relief grant or or requires. explained: has Appeals

As the Court of be joinder may of trial issues reduced analysis jury [T]he (1) evidence questions: two is encompasses a test admissible; mutually concerning the offense or defendants (2) judicial economy outweigh any and the interest does If the to both severance? answer arguments favoring other of offenses or defendants is joinder then questions yes, is one, a number question In order to resolve appropriate. analy crimes” the first of the “other apply step court must [, 552 Faulkner 314 Md. sis announced in [State v.] (1989) one is If number answered question A.2d 896 ]. question there is no need address negative, then number two.... (1997). State, 525, 553, Md. 693 A.2d 781

Conyers v. 345 joinder or severance regarding Decisions committed to sound discretion charges for trial are only judge’s trial court. This Court reverse a trial “will ... decision if the decision a clear abuse of discretion.” Id. 693 A.2d 781. be ... may

“Evidence other crimes admitted if it is to some contested in the substantially relevant issue case if prove it is not guilt offered defendant’s based or propensity commit crime his character as a criminal.” Faulkner, 630, 634, (1989). State v. 314 Md. may Such evidence be deemed if it substantially relevant tends motive, intent, to establish plan, a common scheme or identity, opportunity, mistake, preparation, knowledge, absence of accident. Id. It be “clear convincing,” must and its probative outweigh value must prejudicial its effect. Id. at 634-35, 552 A.2d 896.

Evidence that the used false name ques- when police tioned by about the robbery outside Arrowhead Ele- mentary School is relevant in a trial concerning robbery and related counts to establish he had knowledge of those offenses. 143, 174, See Stuckey Md.App. (2001) (evidence A.2d that defendant used false name relevant to of guilt). show consciousness Evidence regarding robbery relevant a trial concerning the making of a false statement to establish the motive making statement. offers persuasive argument no in either situation the evidence would be unduly prejudicial. it Accordingly, would not be an abuse of discretion to deny a

motion to sever.

JUDGMENTS AND REVERSED CASE REMANDED THE TO CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY PROCEEDINGS; FOR FURTHER COSTS TO BE PAID BY PRINCE GEORGE’S COUNTY.

Concurring/Dissenting DAVIS, opinion by J.

Most I respectfully, must dissent from the Majority opin- ion’s determination appellant’s voluntary. confession are We by instructed the Court of in Appeals, State, Winder v. 275, 309, 362 Md. (2001), State, 765 A.2d 97 and Hillard v. 286 90 (1979), 145, that a made 406 A.2d 415 confession

Md. an interro- promise by on of assistance improper reliance an agent police always or of the will be deemed officer an gating common and non-constitutional involuntary Maryland under or induce- improper promise that “an explains law. Winder told, it implied, is is occurs “an accused ment” when advantage, to his inculpatory statement will be making consideration.” 362 special or some given help that he will be 308, at 765 A.2d 97. Md. whether a confes- regarding trial court’s determination

“The is of law and fact.” voluntarily question a mixed sion was made 310-11, Winder, An court appellate 362 Md. at 765 A.2d 97. of ultimate judge’s the trial a de novo review undertakes do not Id. We on the issue voluntariness. determination information, look, however, for additional at the trial record State, v. engage fact-finding. in de novo Cartnail nor do we (2000). 272, 279, Appellate review of 359 Md. is limited to the suppress denial of a motion to circuit court’s Winder, at hearing. 362 Md. 310- of the suppression record party on the 11, prevailing As the State was 765 A.2d 97. court, and motion, as found the trial consider the facts we facts, in the most light inferences from those the reasonable Cartnail, 282, 359 Md. at 753 A.2d favorable to State. 519. State, (2004), 517, A.2d 1179

In 381 Md. Knight following statement: down “[I]f officer made interrogating end, line, to an we’ll see what after this case comes case, your for with Attorney you, your can do with State’s 381 Md. at 850 A.2d 1179. The Court charges[.]” opinion, held this to footnote Appeals, referring 14 had be an inducement. Footnote improper statement be inducements deci- prior held to chronicled statements I I promise, Okay? help you. can you “I can make sions: Winder, 289, 765 A.2d you.” 362 Md. at try protect could ... I to bat for 97; telling go me the truth will you’re “If Hillard, 415; “It be better A.2d would you.” they did [you] if a statement because if [you] [you] make Streams v. probation.” try get [you] put (1965). 278, 281, Certainly, 238 Md. reference to disposition suspect’s “charges” of a “case” or in- graphically but, compliant, duces one to be as I Knight, emphasis read advocate, there on the officer the role of much assuming legal like counsel advocate for a client. would outset, At the I do not any take issue with the decisional authority by Majority. cited it purview Were within our motion, appellant’s credit on the his rendition of testimony occurred, i.e., what that would in into help getting receive program and Detective Brew him into help get time, program doing instead of some would certainly have that, constituted an in Keeping upon inducement. mind appel- review, and, late not in engage fact-finding we do de novo as out, Majority the motions points appel- court did not find credible, testimony lant’s his of no version what occurred is us, then, moment. That leaves testimony with the Detec- Considering testimony light tive Brew. his in the most favor- view, able to the it my held out at expecta- least an tion that Detective go Brew would to bat for A appellant. promise will be it deemed inducement if explicit- was made ly or it not implicitly; expressed. need be hand,

In the case Detective Brew was on asked cross- examination, say “And did you you could help him with that, that?” (Referring his earlier statement “I think I said might that we get able to him through some the State’s Attorney Parole and Probation or that the programs are them.”) through run Detective had Brew indicated that he it, “couldn’t do might but be able to through the State’s Attorney.” majority The opinion seeks to ameliorate the effect of testimony that, Detective by asserting Brew’s taken context, the statement is no more than information regard- ing agencies that are responsible administering drug treatment programs. language critical from Knight as it is relevant here is:

If the court concludes that the confession was made inducement, reliance an improper the confession not may trial, Winder, (citing 362 Md. at as evidence at be admitted 97) 309, A.2d 765 objective test is an one. of the Hillard prong

The first that he or she will be advan- subjective belief suspect’s The trial way by in is irrelevant. taged confessing some officers interrogating court instead determines whether threat, a or induce- promise, made agent police an or Winder, 311, at An 362 at 765 A.2d. 116. ment. Md. “an accused or occurs when is inducement improper promise statement told, making inculpatory an implied, it is that or given help in he will be or advantage, to his that bewill 362 at A.2d at Md. special consideration.” some 115. of the a de novo review noted we undertake previously,

As on the issue of voluntari- ultimate determination judge’s trial 310-11, Winder, A.2d 97. Detective Md. at ness. testimony by adopting his to refine earlier attempted Brew you “But told them prosecutor’s question, substance be Attorney might or Parole and Probation the State’s that that, him,” “7 about could talk them help by saying, able view, That, my in constitutes get him to into a program” More given help.” that he Knight, a under “will promise, in found the Knight of Appeals to the the Court point, it to be an inducement because under consideration statement on behalf advocacy Knight’s to exercise clearly promise “was Knight’s in exercise discretion prosecutor to convince Moreover, according 1179. Id. at 850 A.2d favor.” did not advise testimony, he Detective Brew’s him after be available to program treatment would drug with, of, rather than instead conjunction in conviction or incarceration. is of a confession that the voluntariness

The law is clear inducement, order to obtain a in by improper an vitiated confession, judgment, In when Detective my more. without that he could “talk to advised testified that he Brew that, program,” he assumed get for him to into them about advocate, thereby rendering his statement of an the role that he than an indication would simply inducement rather report the circumstances of the interrogation prosecu- to the tor. I see very little difference between Detective Brew’s offer of assistance that might “We be able to him get some through the Attorney Probation,” State’s Parole Streams that, the statement if the accused made a state- ment, “they try to on get you put would In both probation.” instances, there is at an implicit least suggestion assis- tance in obtaining drug treatment or on getting probation be forthcoming if the suspect cooperated giving a statement. believe, I remand,

Because only lower court can find appellant, least led tacitly, was to believe giving a statement would result Detective acting Brew on his behalf as advocate sponsor for his acceptance drug conclude, I program, record, on the present statement is not voluntary.

William C. BOND MESSERMAN, A. Gerald et al. 1067, Sept. Term,

No. 2004. Special Appeals Maryland. Court of

April 2005.

Case Details

Case Name: Harper v. State

Court Name: Court of Special Appeals of Maryland

Date Published: Apr 28, 2005

Citation: 873 A.2d 395

Docket Number: 2700, September Term, 2003

Court Abbreviation: Md. Ct. Spec. App.