Lee v. State

A.3d Christian Darrell LEE Maryland. STATE of Term, Sept. No. 2009. Appeals Maryland. Court of

Jan. 2011. Gomez, (Elizabeth Julian, Piedad Asst. Public Defender L. Defender, Baltimore, Acting MD), brief, Public on petition- for er.

Ryan Dietrich, R. Asst. Atty. (Douglas Gansler, Gen. F. Atty. Baltimore, Maryland, MD), brief, Gen. of for respon- dent. BELL,

Argued C.J., before HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS, BARBERA, and JJ.

BARBERA, J. Arizona, decision,

In its Miranda v. landmark 384 U.S. (1966), S.Ct. L.Ed.2d 694 the Supreme Court held that, before police interrogate person in custody, police must alia, advise person, inter statement he or she makes “can and be against” will used him or her court. whether, We decide in this case following police officer’s issuance of proper warnings the suspect’s and know- ing, intelligent and voluntary rights waiver of the afforded Miranda, the officer the warnings subverted and waiver by later stating that the interrogation me, is “between follow, For bud.” the reasons that we hold that the officer’s statement warnings waiver, subverted the rendering violation of all suspect statements thereafter made during interrogation.

I. grew September issue we address out of an incident on 8, fatally in which Eric Fountain was in his shot Dun- home, Hudson, the father of Mr.

dalk, Randy Maryland and, allegedly, was assaulted granddaughter, Fountain’s later, the Balti- an informant contacted days robbed. Two and the incident Department regarding Police County more three police developed from the information which provided cousin, Lee; Dar- Darrell his suspects: Petitioner Christian later Smith; The arrested police nell and John Satterfield. the for crimes connected to events charged and Petitioner to filed motion question. pre-trial the in Petitioner a night police a interro- during certain statements he made suppress the developed hearing The facts were at gation. following the motion. September Petitioner at 5:30 a.m. on arrested police him to Detective transported police headquarters. and began the interrogation the Homicide Unit

Craig Schrott The interview was p.m. at 12:38 approximately Petitioner room. a camera hidden in the by recorded obtaining by recorded interview began Detective Schrott Detective biographical from Petitioner certain information. “a interview Petitioner about then said he wanted to Schrott a up at for that was beat guy that was down Dundalk robbery in his there a man that was killed yard, up in a back and was read aloud Detective Schrott had Petitioner bedroom.” say including “anything you that can warnings, in a Detective against you will used court law.” Schrott be advisement, each with Petitioner that he understood confirmed he not read, that as. it was he understood stop and could interview required questions to answer the a waiver of the signed at time. Petitioner then written rights. if knew asked Petitioner he about Detective Schrott knew, acknowledged Petitioner Dundalk. incident at scene the time of the he was present because that, night on the explained question, incident. Petitioner “Darnell,” two cousin, accompanied by “John” and Petitioner’s they traveled Together him from his home. girls, up picked to a few Dundalk, up park in a “have drinks.” ending car went into a nearby alley got John move car and there a man. fight into with Petitioner and Darnell walked over to but, Petitioner, the scene of the fight according he left the John, because could group Eventually, John “handle himself.” Darnell, the man who had been in the with fight John went into a house. The house to which Petitioner referred was the Fountain residence.1

Petitioner acknowledged following the men into the Foun- tain residence. Petitioner stated at that in the point interro- gation that he left the house because he was scared and waited others, outside for the and he did not know what had occurred in the house. Detective Schrott told Petitioner that he had involved, spoken with others and he knew that Petitioner had been in the house with Darnell. Petitioner then acknowl- edged that he had into gone the house and up to the second Darnell, floor with where he saw a “guy was shot.” added, Petitioner though, that he present was not when the shooting took place, shot, did not hear a and he did not know who shot the man.

Detective Schrott continued press Petitioner expla- for an nation which, of the shooting about an hour into the interroga- tion, led to the following exchange between the two: man,

Q. The in, where was he at? Was he still hewas still bed; in mean, was he I standing up? it’s important to tell me what his he’s, demeanor is? Tell me what he’s saying, or what doing, he’s all I right, so can a better get picture of on, what’s going you’re what going through. When two you and, he, go upstairs, all in right, is is he the bedroom? Is he— (Witness

A. nodding yes.) head Q. he standing up, or was he in still bed? heWas —is sleeping? Chris, Was he awake? bud—all right. Was he still in get bed or did he up? jail,

A. I’m going right? Later, trial, alley 1. evidence disclosed that the man assaulted in the Randy was Hudson. jail now.

Q. talking right We’re not about is about. thing A. what whole Just —that’s It’s about to what getting That ain’t what it’s about. Q. is, that’s what it’s all about. truth bed, Now, your or did he out of bed while get was he still there? up cousin was

A. He was still bed. what Q. you got upstairs happened? And once two was under the bed. money A. was told We you under the bed. Now who told that? Q. Was A. Chuck told me—John. (sic)

Q. you? Who told that got A. John. Guess he out of— right, you got that. sir—so when Q. you John told So—all awake; room, there, into that was that man was you went he asleep?

A. He was asleep. He

Q. asleep? Yeah, being recorded. A. this is Q. Only you me, bud. me and This is between here, right? right? are all All life accept my I’m fact and trying put together A. basically is over. added.)

(Emphases admitted for the exchange, after that Petitioner long Not that he shot Eric Fountain: during interrogation first time him you up, your Are wake or does Q. you guys—do money, you try him for the or do up looking cousin wake him waking up? find the without money He, my bed. he woke when up A. First we look under the close. I left, got he tried to rush me. He too cousin then I see, get I see tried to why. tried to run. I didn’t didn’t me I could leave. him from so away Q. you trying get away? were So I, thought, thought gunshot A. I I I would scare him. looking. ain’t I hit know him. I wasn’t even Q. you mean, Slow’d shoot you when were I did running? you shoot like over your shoulder? Like, (Indicating).

A. No. like close, this I ’Cause was door, he, just kept near the and coming. I shot two shot, away, immediate times. It’s not like I went shot here. I shot two immediate times. added.)

(Emphases Petitioner followed those admissions awith more complete description what occurred before and during shooting. He described further details about the in the fight alley; he stated for the first time that he was involved in assaulting Hudson, Randy whom he now identified as “Scooby”; and he provided additional details about what occurred the house. stated, Petitioner among other things, that he learned while upstairs that there was to a robbery $100,000, be which was supposed to be under the mattress the bedroom. Petitioner said that yelled, Darnell victim, woke up the and stated there money bed, under the which the victim denied. Petitioner stated that Darnell then me “[g]ave the gun and I was He, supposed to watch him, him. he try wrestle [to] and I tried run. Petitioner, Darnell, [to] Shot twice.” and John ran house, from the car, in a got left scene. The interro- gation concluded at approximately p.m.2 2:10

The video recording the interrogation was admitted into evidence at the suppression hearing played for the court. Defense counsel raised a number of arguments in support of suppression of all or part of Petitioner’s statements during the interrogation. here, Pertinent argued defense that Detec- tive Schrott’s advising Petitioner during interrogation, “This you me, is between here, bud. Only me and are all right? right?”, All vitiated Petitioner’s prior waiver of his that, suppression 2. The hearing record of the shortly reflects after that interrogation, first there prosecutor was a second one. The informed suppression seeking court that the State would not be to admit part interrogation. of that second that rights by effectively warning undermining used anything interrogation he said would be during the in argued him that against court. Counsel violation Petitioner there- compelled suppression everything after said to Detective also that argued Schrott. Counsel Petitioner’s comment following statements Detective Schrott’s Due the Four- involuntary were under the Process Clause of Constitution, teenth Amendment Article United States Maryland Maryland of the Declaration of Rights, common law. court all grounds. respect

The denied the motion on With to whether waiver was Detective prior Petitioner’s vitiated statement that the Schrott’s conversation was “between bud,” me, ruled: court And, finally, I think a close think that the it’s case. I State has made a demean- good argument [Petitioner’s] or does not from the of the interview change beginning it, throughout the as he does get end more emotional But his way responding times. to the doesn’t questions in change respect, material and he to know appears is, being he is The he makes this is recorded. statement recorded, directly being ain’t it? Detective does not no, question yes certainly answer that by saying or but just leaves Defendant to believe that the conversation is them, between the two which was But I do not not true. the, think that it changed willingness Defendant’s the questions any way. rights. answer Or violated his jury degree Petitioner was on of first charges tried before Fountain, robbery Randy of Eric murder and assault of (Eric Hudson, robbery of Anna Fountain’s and assault Hudson wife, present question), who was in the house the night degree first and related offenses. The burglary, handgun use of its case in during State made Petitioner’s statement chief. deliberations, its the court a

During jury submitted to read, note which “1. In the murder felony written case of person personally is as as the who anyone present guilty robbery commits the murder. 2. In the case of does the felony hold The responded same true?” court to the note writing: “The answer this is in question Jury to contained the Instruc- provided you.” tions to Defense counsel to the objected this, “I response: court’s that to the thought as Court should indicate that the first jury’s sentence the is inaccu- [of note] ----I am being rate to that not within objecting included the instructions.” jury found Petitioner of guilty felony mur- Fountain, of der Eric first degree burglary, first degree Randy Fountain, assault of and Hudson Anna and related handgun offenses. appeal

On to the of Special Court Lee Appeals, argued, error, among other claims of court in erred denying the motion to suppress his statements Detective Schrott comment, following me, you bud,” “This is between and and its to the In response jury note. a reported opinion, Court of Special Appeals the judgments affirmed of con- State, Lee v. viction. Md.App. A.2d 240 The Court Special that, Appeals held considered in context, statement, Schrott’s me,” “This is between you and not was a promise of confidentiality that undermined the warnings waiver, and it did and not render Petition- subsequent er’s statements involuntary, under either the fed- eral or state or Maryland Id. at constitutions law. common 657-58, 975 A.2d at 255. The court further held that the trial response court’s to the jury question, referring jury to the previously instructions given, sufficient the initial because Id. instructions “made clear” the answer. 975 A.2d at 260. certiorari,

Petitioner a petition filed for writ of which we granted, Lee v. (2009), 411 Md. 983 A.2d 431 the following questions: answer promise

1. Whether the made a interrogating officer Miranda Ari confidentiality, protections violated the } when, and induced an an zona} involuntary statement hour an interrogation continually into in which Petitioner denied shooting, involvement in the the officer stated: “This is here, me me, right? bud. all you Only you between right?” All asked, “In the case jury the deliberating

2. Whether where guilty person is as as the felony anyone present murder felony In the case of who commits the murder. personally true,” trial erred in same court robbery, does the hold question to this is con- merely answer responding, “[t]he you”? jury provided tained instructions follow, with Petitioner that agree For the we reasons comment, following he said Detective Schrott’s everything bud,” me, prior “This is between undermined said everything and therefore Petitioner warnings, in the of was obtained during interrogation remainder the that the agree, though, of We do not violation Miranda. Petitioner’s con- subsequent detective’s statements rendered under either federal and state constitution- involuntary fession Petitioner is Maryland common law. Because principles al or that made ground to new trial on the the State entitled a trial of the statements that were substantive use at to, violation, we have no need product the Miranda not, he presents. the second question thus do decide

II. In our of the court’s undertaking suppression review suppres we what occurred at the ruling, confine ourselves to State, 498, 486, Md. 924 A.2d v. 399 hearing. Longshore sion 1129, (2007). inferences 1135 the evidence and view “‘[W]e in most may reasonably light that therefrom be drawn ” motion,’ here, the party favorable prevailing 1072, 388, 403, 1080 399 924 A.2d Owens v. Md. State. 199, (2007) Rucker, 207, A.2d v. Md. 821 (quoting State 1064, 1144, denied, 439, (2003)), 128 S.Ct. cert. 552 U.S. court’s defer to motions 169 L.Ed.2d 813 “We be they unless are shown to uphold factual them findings Luckett, 360, 375 n. 413 Md. clearly erroneous.” State however, (2010). “We, own make our A.2d 33 n. 3 the relevant appraisal, reviewing constitutional independent law and it to the applying facts circumstances of this Id., case.” (quotation A.2d 33 n. 3 marks and citation omitted).

III. The grounded is in portion decision that Amendment the Fifth to the States Constitution United that provides: ... person “No shall be compelled any criminal Const, himself,” against case be a witness U.S. amend. V.3 One of the in establishing the Court’s stated aims rule is to “assure that the individual’s to choose right between silence and speech remains unfettered throughout interro Miranda, gation process.” 384 U.S. at 86 S.Ct. 1602. “ The Miranda Court into put place ‘certain procedural safeguards require police to advise criminal suspects rights their under Fifth and Fourteenth Amendments ” before commencing Florida v. Pow interrogation.’ custodial ell, U.S. -, -, 1195, 1203, 175 130 S.Ct. L.Ed.2d 1009 (2010) (quoting Eagan, Duckworth v. 195, 201, 492 U.S. (1989)). S.Ct. 106 L.Ed.2d 166 Specifically, police must warn a suspect that silent, has

he right remain that anything says he can be used against law, him a court has the right to the presence of an and that if he cannot attorney, afford an attorney one will be appointed prior for him any to if so questioning desires.

Miranda, 479,86 384 at 1602. U.S. S.Ct.

The Miranda the explained importance Court of the warn- ing concerning the use of the individual’s statements in court. That warning is needed in order to the make individual

aware not of the only privilege [against compelled self- incrimination], but also of the of consequences it. foregoing only It is an through of these consequences awareness that applies through 3. The Fifth Amendment the to states the Fourteenth 1, 7, Malloy Hogan, v. Amendment. U.S. 84 12 378 S.Ct. L.Ed.2d 653 150 understanding real assurance of any

there can be Moreover, warning the this privilege. exercise of intelligent that acutely the more aware may serve to make individual is he adversary system of phase he is with a the faced —that interest. acting solely in his persons is not in the of presence Id. in the Miranda warning pertain rights expressed Berghuis Thompkins, v. interrogation. See

throughout the 2263-64, 176 1098 L.Ed.2d U.S. -, -, 130 S.Ct. (2010) (“If is right or the remain silent right the counsel during interrogation at further any point questioning, invoked Miranda, at see also cease.”); 384 U.S. 86 S.Ct. must (“If manner, any at time indicates the individual silent, or that he wishes to remain during questioning, prior cease____If the states must individual the interrogation an must cease until attorney, interrogation he wants an the is attorney present.”). the the of the of adequacy into waiver

Inquiry two “has distinct dimensions”: rights First, right the have been relinquishment the of must a free and voluntary product in the sense it was the intimidation, coercion, de- rather or deliberate choice than with a Second, the must have been made waiver ception. the aban- right being of both the nature of full awareness it. the decision to abandon consequences the doned and the surrounding if circumstances Only totality “the uncoerced choice and interrogation” reveals both an con- a court comprehension may properly level of requisite clude that the rights have been waived. Burbine, 412, 421, Moran S.Ct. U.S. (citations omitted). (1986) L.Ed.2d 410 rights a The Miranda Court recognized that waiver of or undermined words warnings by can be afforded “that If the shows police. of the evidence part actions waiver,” threatened, tricked, cajoled or into accused not course, did “will, show that defendant then that Miranda, 476, privilege.” his U.S. voluntarily waive 8, 107 S.Ct. 1602. See Colorado v. n. Spring, U.S. (1987) S.Ct. 93 L.Ed.2d 954 that the “has (noting Court found affirmative misrepresentations by police sufficient to invalidate a suspect’s waiver of the Fifth Amendment privi (citation omitted)); lege” Anderson, accord United States v. (2d Cir.1991) (affirmative 929 F.2d 100-01 misrepresenta tions by police may be sufficiently coercive to invalidate a Wayne suspect’s waiver of the Fifth Amendment privilege); Nancy Jerold H. Israel Lafave, King, R. J. Criminal & 6.9(c) that, § (stating contrast to traditional Procedure voluntariness, “there is an absolute prohibition upon any trick ery that misleads the suspect as to the existence or dimen sions of of the applicable rights”). [Miranda ] clarified,

The Supreme moreover, Court has that the motive underlying conduct, the interrogator’s whether inten inadvertent, tional or is in itself irrelevant when evaluating “the intelligence and voluntariness of suspect’s] [the election to abandon his rights” Burbine, under Miranda. 475 U.S. at 423, 106 Rather, S.Ct. 1135. “such conduct” the police “is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to ability his understand the nature of his rights and the consequences of abandoning them.” Id. at 106 S.Ct. 1135. Similarly, when an examining officer’s statements to a suspect regarding his or her rights, courts look at only the words the officer used and “will pause not inquire individual cases whether the defendant was aware of his rights without a warning being given,” because such an inquiry “can never be Miranda, more than speculation____” See U.S. 1602. S.Ct. decided,

Since Miranda was courts have applied principles of that case that, and its progeny hold after proper warnings and a knowing, intelligent, voluntary waiver, the interrogator may not or do say something during the ensuing interrogation that subverts those warnings thereby the suspect’s vitiates earlier by rendering waiver it unknowing, involuntary, or both. action part Such on the and, violates Miranda requires as a consequence, police makes thereafter suspect of statements the

suppression interrogation. during Cockrell, 325 F.3d 579 (5th Hopkins v.

One such case is Cir.2003). of for the Fifth Appeals The United States Court an improper concluded that a officer made police Circuit when, confidentiality proper warnings assurance of after waiver, you. he “This is for me and This is for Hopkins: told else.” Id. at 584. The court nobody me. This ain’t for Okay. “ ‘[a]ny cited Miranda for the evidence that proposition threatened, tricked, cajoled or into a waiver the accused was will, course, voluntarily of show that the defendant did not ” Miranda, Id. at 584 at waive his 384 U.S. privilege.’ (quoting 476, 1602). then had this to about the say 86 S.Ct. The Court “An officer confidentiality: officer’s assurance of interrogating cannot read the defendant his Miranda and then warnings despite warnings, turn around and tell him that those what the officer will be confidential and still use the defendant tells Yet against resultant confession the defendant. Knott [the and the did that.” interrogating prosecution exactly officer] Id. at 585. The Hopkins court concluded that the officer’s Miranda, which, cir- together statement violated with other Hop- also rendered surrounding interrogation, cumstances v. Spano involuntary kins’s confession under the dictates York, (1959).4 New 1265 360 U.S. L.Ed.2d S.Ct. Hopkins, 325 F.3d at 584. Hopkins

The court’s Supreme Georgia applied Court in Spence to its decision 281 Ga. analysis case, Spence, In that arrested for S.E.2d to the arrest. interrogated was about a murder unrelated rape, Spence “During the happened: court described what was read his interrogation, Spence rights, which Miranda, years Spano, which decided seven before 4. the Court grounds. See 360 U.S. based on Fourteenth Amendment voluntariness Hopkins ultimately held that the at 79 S.Ct. 1202. The court Hopkins’s involuntary allowing use at trial of constitutional error overwhelming light amount of statements was harmless ”[i]n present in this 325 F.3d at 585. case[.]” circumstantial evidence In the hour signed. interrogation, Spence nothing first said himself. then down in tears and implicate Spence broke Id. at asked if he could talk to his girlfriend.” S.E.2d at 857. exchange Spence There was then an between and the officer, interrogating during which the officer told Spence me, you just you just “Just and me.” said: “I’m Spence jail, scared when I I go everybody gonna know that said “Lem, To that something.” officer ain’t no- responded, Id., body saying nothing, this is confidential.” S.E.2d thereafter, 857. Shortly the officer repeated “nobody “[tjhis for,” knows what there you’re because is confidential what we’re here. doing right Do understand that? This confidential____” Id., is at 857. S.E.2d The officer then implored Spence that, to tell him happened.” “what After Spence “gave a statement incriminating himself the mur- Id., der.” Spence 642 S.E.2d at 857. The Court held: would have [I]t been reasonable for to Spence understand Quinn’s [the officer’s] statement that their interview was confidential as an statement unqualified that what Spence Quinn told would be kept confidential between the two them, and would not be anyone disclosed to else. Accord- we ingly, conclude that the trial court erred in ruling that Spence’s Quinn statement was admissible.

Id. at 700, at S.E.2d 858. The court did not state the legal ground stated, for its The holding. court though, that its decision was controlled by Hopkins, referring specifically to “ the Hopkins court’s declaration that ‘An officer cannot read the defendant his Miranda and then turn warnings around and tell him that those what despite warnings, the defendant tells the officer will be confidential still and use the resultant ” Id. at confession against defendant.’ at S.E.2d 585). 858 (quoting Hopkins, 825 F.3d at Spence decision, The court controlling also found its earlier Foster v. which involved an officer repeatedly telling defendant the recording previous, of his unrecorded confession not ‘a going thing’ “was to hurt and that it would be ” 736, 742, your ‘as much for benefit as ours.’ 258 Ga. 188,194 Georgia Supreme S.E.2d Court repeated “ what it had held in Foster: ‘An accused must be warned that can and will be used him in court. anything says against and, him hurt on the Telling going that a confession is not will benefit him as much as the is not contrary, police, ’” 281 Miranda. warnings required by consistent with the Ga. Foster, at at 858 at (quoting 642 S.E.2d Ga. 194). Although Spence say S.E.2d at court did not so expressly, the rationale for its is holding plain: Spence’s at police statement to the was inadmissible his incriminating because, waiver, trial earlier and his notwithstanding warnings confession violated Miranda in that the officer’s subsequent earlier confidentiality warnings statement of subverted the waiver. Pillar, is State to the above cases 359 N.J.Super. Similar Pillar, (N.J.Super.App.Div.2003). 820 A.2d 1 In defendant, after mak- receiving proper warnings waiver, voluntary was asked ing knowing if he wished to He that he was police speak. responded things of some of the statement of “guilty charges [a but not all of them.” Id. ... given he had been read] 262, 820 A.2d at 11. The defendant said that he wanted to first, lawyer to a and he asked what would next. speak happen bail, setting He was told about the arraignment process, necessary. of counsel if The defendant then appointment 262, off-the-record.” Id. to at A.2d say “something asked 820 at 11. The the defendant then made an police agreed, and Jersey statement. The New court held that the incriminating violated Miranda to receive the police by agreeing officers Id. at 268, off-the-record statement. 820 A.2d at defendant’s explained why: 21-22. The court contradict, A officer cannot out of one side of police directly Miranda mouth, just the out of the warnings given his other. An to hear an “off-the-record” state- acquiescence ought ment from a which the officer to know cannot suspect, “off-the-record,” the totally be undermines and eviscerates Miranda a statement warnings, respect at least with

155 made, here, as in immediate and to the response direct misleading assurance. 268, at

Id. 820 A.2d at 11-12. Supreme People California Court held to like effect in Braeseke, 691, 684, 25 v. Cal.3d 159 602 P.2d 384 Cal.Rptr. (1979). The Braeseke court held that violated police when, waiver, following warnings Miranda they obtained a requested statement that the defendant be made to “off-the-record”; officer only one police agreed procedure without that there was no such explaining thing, context, 701, as “off-the-record.” Id. interrogation at 159 684, CaLRptr. 602 at a P.2d 390. The court held that request speak off-the-record cannot constitute a and intelli knowing gent waiver rights, of Miranda with to the specifically respect says advice that a can anything suspect be used against the Braeseke, suspect 702, a court of law. 25 Cal.3d at 159 684, CaLRptr. 602 P.2d at 391. In holding, so the court “Indeed, observed: defendant’s request revealed a marked lack understanding of the Miranda warnings. police] [The then contributed to defendant’s lack of understanding by agreeing to the request rather than informing defendant that there could no be such off thing as an the record discussion.” 702-03, Id. at 159 CaLRptr. 602 at 391. See P.2d also (S.D.2000) State Stanga, N.W.2d (holding that multiple statements made an interrogating officer to the defendant that “I’m here for and I to talk” “nullified” earlier warnings).5 Special Appeals points

5. The Court of out that some courts see a misrepresentations by distinction police, concerning between scope protections, of Miranda's a that occur before Miranda waiver and interrogation. Md.App. those that occur later in the Lee v. Bezanson-Perkins, (citing 975 A.2d at 251 United States v. Cir.2004) (1st (questioning police F.3d whether misstatements waiver); voluntary after waiver could invalidate United States v. Chadwick, (detective’s (8th Cir.1993) F.2d statement that the cooperation "help" defendant's him did would not invalidate rights; Chadwick’s waiver of Miranda it not had his could have impact rights, on Chadwick’s decision since to waive his Miranda earlier)). agree colleagues waiver had occurred We with our on the Special Appeals timing of police deception Court that the of the is not we in the cases have underlying The rationale the decisions in present to the case. As applies equal discussed with force cases, of the properly all Petitioner was advised of those “anything the advisement that rights, which included of you can and be used in a court law.” you say against will Petitioner, advisements, cases, As those at the time those to talk. voluntarily knowingly agreed and waived and cases, later told And, much as in those Petitioner was some- any- that subverted the advisement that thing by officer could and would be used during interrogation he said thing him in against court. words, you “This is between and

Detective Schrott’s here, me, right? right?,” all All Only you me and are bud. thereby directly contradict imply their face and confidentiality will be you say the advisement that can and used “anything Moreover, in a law.” if we were to against you court of even not intend his words to assume that Detective Schrott did (an about which promise confidentiality assumption a imply doubt), not on the detective we have serious our focus is what intended, what in Petitioner’s layperson posi but rather on a words to mean. See Bur have tion would understood those bine, lay 1135. No reasonable 475 U.S. at S.Ct. anything those words to mean person would have understood conversation, at that moment and thereaf other than ter, before, Detective Schrott only even if not was “between” Petitioner. amount- argues

The State that Detective Schrott’s assertion confidentiality ed less than an assurance of something to Petitioner’s response uttering, because it was offered State, however, ignores the being “this is recorded.” The Schrott used. Inten- phrase conspicuous implication not, utterance, “this is between tionally or the detective’s bud,” me, “yes” than a mere or “no” communicated more infra, why, dispositive explain, to the extent those courts hold we suspect suppression of statements or she that a is not entitled to mid-interrogation, misrepresentation following affirmative makes view, courts, warnings, those in our are incorrect. the Miranda to a about of a reply query presence recording device. Indeed, here, in line with Circuit interpretation our Court found that Schrott’s statement “leaves the Defendant to be- lieve that just the conversation is between the two of them----” It is of no that consequence Detective Schrott the Miranda violation once, committed only rather than multi- ple times as in some of the cases we have discussed. The violation, committed, once to undermine the warn- enough ing anything Petitioner said to detective could and against would be him in In used court. this we regard grant the officer no than greater leave we would had made the while advising error Petitioner in the first instance. See Luckett, 413 Md. at 993 A.2d 38-39 (holding that the warnings, officer’s which included both correct and incorrect statements concerning Miranda scope of the protections, fell far short of properly advising the defendant of his rights Miranda). under

We hold that Detective affirmative misrepresenta- Schrott’s tion mid-way through interrogation that Petitioner’s state- ments were “just me, between you bud. Only and me in here,” are Miranda waiver prior rendered Petitioner’s ineffective for purposes, all going disagree forward. We with the Court of Special Appeals that the detective’s words did not the Miranda misrepresent warnings. detective’s words were less nothing promise than a of confidentiality, even though not couched in precisely those terms. The violation, moreover, lay in the officer’s words themselves. We therefore do not undertake examine further whether Peti- subjectively tioner relied on them to his detriment. To hold otherwise would violate the very which Mi- upon foundation randa is based.

TV. Because the State made substantive use of the violation of Mi statements of Petitioner that were taken randa, York, he is entitled to a new trial. Harris v. New See 222, 226, (1971) (state 401 U.S. 91 S.Ct. 28 L.Ed.2d 1 violation of taken in may ments not used by be chief, admitted for may in its but be prosecution case Hass, Oregon accord 420 U.S. purposes); impeachment L.Ed.2d We nonetheless 95 S.Ct. same arguments those must also address Petitioner’s Process under the Due Clause involuntary statements were the Maryland and Article the Fourteenth Amendment as common law. We Rights, Maryland as well Declaration because, involun must so if we were find statements do from precluded those then the is tary grounds, State im including for using any purpose, Petitioner’s statements Arizona, 385, 397-98, 98 v. 437 U.S. peachment. Mincey See (1978) 2408, use of a (any 290 criminal trial S.Ct. L.Ed.2d under feder involuntary statement was the defendant’s which State, 581, v. 337 Md. 599- prohibited); al constitution is Hof (a 370, (1995) 600, is inadmissible 655 A.2d statement if it is impeachment purposes the case chief and for State’s law). It is to task under common involuntary Maryland that we turn next.

V. in his to the very space devotes little brief Petitioner a arguments, only voluntariness bit more constitutional We, too, his common law voluntariness. argument concerning contentions, these need much attention either of not devote as neither entitles Petitioner relief. begin well-recognized proposition

We with as evidence voluntary against are admissible only confessions State, 517, 531, 850 v. 381 Md. Knight a criminal defendant. (2004). must 1179, voluntary, A.2d To be confession as well as satisfy federal and state constitutional strictures if involuntary that a is Maryland common law rule confession threat, induce promise, it is of an or product improper 532, 850 at 1187-88. ment Id. at A.2d by police.

A. for with the test voluntariness begin analysis our We law. have held under and state constitutional We federal process protections due inherent in Article 22 are construed in pari materia with those afforded by Fourteenth Amend- ment, State, 529, 3, see Choi v. 316 Md. 535 n. 560 A.2d 1108 n. (1989), controls, so what we say about latter for both the federal and state arguments constitutional Petitioner makes.

The Supreme Court has established a test for voluntariness that prohibits confessions that are the result of police conduct that overbears the ofwill the suspect and induces the suspect Fulminante, to confess. 279, 288, See Arizona v. 499 U.S. S.Ct. 113 L.Ed.2d 302 (declaring that a credible threat of physical violence can render a subsequent confession involuntary); Colorado Connelly, 157, 167, 479 U.S. (1986) S.Ct. 93 L.Ed.2d 473 (holding that police “coercive activity is a necessary predicate to the that a finding confes- sion is not within ‘voluntary’ the meaning of the Due Process Clause of Amendment”); the Fourteenth see also Spano, 360 U.S. at 79 S.Ct. 1202 (concluding petitioner’s “that will overborne official pressure, fatigue and sympathy aroused, falsely after all considering the facts in post- their indictment setting”).

Not every deceptive practice by the police meets this standard. Ball v. 347 Md. 699 A.2d 1170, (1997), denied, 1180 1082, cert. 866, 522 U.S. 118 S.Ct. (1998). 139 L.Ed.2d 763 Lying to the suspect about the strength of the against evidence the defendant and showing false for the sympathy suspect, for example, do not rise to the level of the type police coercion that is viewed as overbear ing will of the it suspect. Indeed is the rare and extreme case in which a court will find that suspect a confessed See, involuntarily. e.g., United States v. Rutledge, 900 F.2d (7th 1127, Cir.1990) that (commenting “very few incrimi statements, nating otherwise, custodial or are held to be involuntary”). emphasized 494,

We v. point Reynolds 327 Md. (1992), denied, 1054, 113 981, 610 A.2d 782 cert. 506 U.S. S.Ct. (1993). noted, 122 L.Ed.2d 134 Reynolds In we 327 Md. at 505, 787, 610 A.2d at Supreme in Fulminante Court not re-

“made it clear that constitutional voluntariness does threats, render a that all or inducements quire promises, instead, re- confession the federal constitution involuntary; threats, that courts consider or induce- quires only promises, ments as of the of the circumstances that courts part totality Fulminante, at to must look determine voluntariness.” See (stating that the Bram v. U.S. S.Ct. (1897) States, 183, United 168 U.S. 18 S.Ct. L.Ed. 568 condemning any by “any standard of confession obtained implied slight, by direct or however the exertion promises, [or] influence,” by “totality has been any improper replaced test). the circumstances” grounds argu-

Petitioner his constitutional voluntariness confidentiality, ment on Detective Schrott’s assurance of solely which, asserts, Petitioner “misled as to his constitution- [him] Petitioner ally protected right against self-incrimination.” that, the fact the detective’s state- points improper before ment, crimes, only Petitioner denied involvement after the he make a full confession. detective’s statement did persuaded by argument. We are not Petitioner’s sure, volun prove To be the State has burden Tolbert, tariness. 381 Md. 850 A.2d State note, nonetheless, cannot but help We There testify suppression hearing. Petitioner did not at the fore, we do not have even his word that Detective’s Schrott comment overbore his will and his confes improper produced the fact that confession followed sion. Nor does Petitioner’s comment, itself, establish that Petitioner’s detective’s said, promise, was overborne. As we have a mere wheth will more, or, here, leniency confidentiality, er it be of as without (or state) involuntary, not render a confession for federal will therefore hold that Petitioner’s purposes. constitutional We confession, promise confidentiality, after the improper made the not violate the Due Process Clause of Fourteenth did Amendment, and, reason, Article for the same did not violate of Rights. 22 of the Declaration Maryland

161 B. reject Petitioner’s common law volun We likewise law, a confession argument. Maryland tariness Under common threats, improper is if certain involuntary product it is by police. Knight, or inducements See 381 Md. promises, 532, for at 850 A.2d at 1187-88. The test common law State, 145, voluntariness was forth in Hillard v. set Md. (1979). test, inculpatory 406 A.2d 415 Under that an state (1) ment is if involuntary Maryland under common law officer or of the or agent police promises implies to the suspect that he will be given special consideration from a or some other prosecuting authority form assistance in (2) confession, for exchange suspect’s the suspect makes a apparent police confession in reliance on officer’s 153, explicit or implicit inducement. Id. at 406 A.2d at 420. “Both prongs Hillard [of the must be satisfied before a test] State, confession is to be involuntary.” deemed Winder v. 275, 310, 97, Md. sort promise A.2d or inducement however, to which Hillard applies, test has before, leniency been limited to during, or after trial. See Hill (2011) 1193, (collect 418 Md. 12 A.3d cases). ing voluntariness,

As with constitutional the State has the confession, burden to prove that Petitioner’s Detec following remark, tive voluntary Schrott’s under improper this common law at Knight, standard. See 381 Md. 850 A.2d at 1190. We are it promise convinced that was. The here was confidentiality, leniency, not as those cases which we See, Hill, heretofore have e.g., found common law violation. 80-81, 82, 418 Md. at at (holding A.3d that a statement to a an officer that suspect interrogating family victim and the victim’s want to see “did not [the trouble, suspect] into but an get they only apology” wanted for inducement); what happened, improper Knight, is an 381 Md. 850 A.2d at 1188 (concluding interrogator’s alleged “promise” to the defendant that he would inform the went, of how the whether prosecutor interrogation including confess; an inducement improper was not cooperated, that statement interrogator’s that an concluding also not an improp- be was “helpful” would cooperation defendant’s line, statement, after “If inducement, that the down er but end, Attorney- to an we’ll see what State’s this case comes case, your charges,” with with you, your can do for advocacy on the defendant’s a to exercise “clearly promise (“I Winder, at 104 can behalf’); 765 A.2d 362 Md. try I could Okay? help you. I can you promise, make a Hillard, inducement); to be an you” improper held protect (“[I]f me the you telling at 420 are 286 Md. at 406 A.2d improper held to be an you” ... I will to bat for go truth 278, 281, A.2d inducement); 238 Md. Streams (1965) (“[I]t if [you] made [you] would be better for try get [you] put if did would [you] they statement because inducement). be an improper held to probation” that a Maryland holding cite cases Petitioner does not made like the one Detective Schrott confidentiality, promise confession subsequent renders a interrogation, during simply law. Petitioner Maryland common involuntary under offers little to much. that he asks us to hold as Given so, case, we that, we should do on the facts of this persuade us law volun- time to the rule of common expand decline at this like the one here. presented to cover situations tariness

VI. that “this Detective Schrott hold that statement We me, effectively a promise and bud” was just is between early directly contradicted confidentiality and will be used say can “anything you advisement law,” vitiating Petitioner’s thereby in a against you court of every- waiver, in violation rendering prior remain- during said to the detective thing that Petitioner statement, however, of the detective’s interrogation. der ei- involuntary under statements not render Petitioner’s did law, common Maryland or state constitutional ther federal or law. THE

JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT THE WITH INSTRUCTIONS TO REVERSE JUDG- MENTS OF THE CIRCUIT COURT FOR BALTIMORE TRIAL; AND REMAND A COUNTY FOR COSTS NEW BE PAID TO BY COUNTY. BALTIMORE BELL, C.J., MURPHY, J., Concur Dissent. MURPHY, J., BELL, concurring and in which dissenting, joins. C.J.

I agree that the Petitioner a I is entitled to new trial. dissent, however, from the majority’s conclusion that detective’s improper promise of confidentiality “did not render Petitioner’s statements involuntary under either federal or law, state constitutional or law.” Maryland my common In an opinion, incriminating statement that from prom- results ise confidentiality is simply product not the of a “knowing intelligent” and that, waiver.1 I would therefore hold remand, the prohibited State is from making use—direct or anything derivative —of that Petitioner being stated after told, just “this is between me[.]” and BELL Judge

Chief has authorized me joins to state that he in this concurring opinion. dissenting Carroll, 687, My opinion 1. is consistent with v. State 138 N.H. 645 A.2d 82, (1994), 486, (S.D.2000), Stanga, 85 State v. 617 N.W.2d 490-91 830, (W.D.Pa.1994), Conley, F.Supp. United States v. 859 845-46 which Jezic, Nolan, Molony are cited in V. Andrew Frank & William E. (2006), Maryland § Law 3:12 at 93 well as with as State of Confessions Burr, 338, 635, Tamerius, (1980); v. 126 Ariz. 615 P.2d 637 v. State 234 121, 535, Walton, (1989); Neb. N.W.2d United 10 F.3d States 1024, (3d Cir.1993); McConkie, 1075, State v. 755 A.2d 1077-79 (Me.2000); Pillar, 1, N.J.Super. State v. A.2d 11-12 (2003); (Alaska App.2003); Jones v. 907-08 P.3d Parker, State v. 160 N.H. 999 A.2d

Case Details

Case Name: Lee v. State

Court Name: Court of Appeals of Maryland

Date Published: Jan 31, 2011

Citation: 12 A.3d 1238

Docket Number: 115, September Term, 2009

Court Abbreviation: Md.