*1 841A.2d372 PEREZ, Angel Jr. Robert v. Maryland.
STATE Term, Sept. 2001. No. Maryland. SpecialAppeals
Court of 3, 2004. Feb. *4 Marlboro, Appellant. for Harper, Upper
George Jr., Curran, Atty. Bosse, (Joseph M. Kamins J. Rachel Ann Baltimore, brief), Gen., Appellee. for on the SALMON, HOLLANDER, C.J., DAVIS, MURPHY, KENNEY, S. EYLER, SONNER, DEBORAH R. JAMES GREENE,* BARBERA, KRAUSER, ADKINS, EYLER, (Retired, Jr., THIEME, Specially SHARER, G. RAYMOND (Retired, WENNER, Specially W. and WILLIAM Assigned) Assigned), JJ. EYLER, Judge. R.
JAMES (hereinafter Perez or Perez, Jr., appellant Angel Robert in the Circuit Court jury aby was convicted appellant), felony murder of two counts of County George’s Prince on sev- his convictions challenges charges. Appellant related should that his statements an assertion including eral grounds, involuntary. One of they were because suppressed have been delay present- was a relevant to voluntariness the factors of recent light court commissioner. ment to a district present- with a dealing decisions Appeals Court of remand to ment, convictions and appellant’s we shall vacate new trial. and a proceedings for new pre-trial the circuit court (1) refusal to instruct consider the court’s shall also We 4-212, obligated are Rule to Md. jury, pursuant commis- of crime to a district court accused to take persons than and in no event later unnecessary delay sioner “without (2) arrest,” exclusion of the trial court’s 24 hours after made one of two to statements testimony respect with victims, she died. shortly before
* Greene, J., Appeals, participated in the Court of now a member of the Court; and while a member of this of this case conference and decision opinion member of this Court adoption of as a participated in the this by special designation. *5 AND
FACTS LEGAL PROCEEDINGS
The Murders 15, 1999, September On veterinarian Nirwan Tharpar wife, his were at their Tharpar, brutally Shashi murdered hospital Maryland. animal An Bladensburg, equipment technician found Dr. Tharpar lying reception behind coun- arrived, ter. that Dr. they Tharpar When discovered was dead from wounds. also gunshot His throat was slit. They Tharpar nearby. also discovered Mrs. on the floor hit in Though she had been the back of her head and shot at neck, range eyes close over both and in her she was still alive. tall single She described assailant —a black male. She died after at the shortly arriving hospital. 7, 2000, August
On Keith Mahar informed Prince George’s County Joseph Detective Hoffman that Perez and Thomas had admitted to killing Tharpars they Gordon while the hospital. day, August robbed The next on Hoffman Perez, for and obtained an warrant applied alleging arrest cause arose probable from information was received Prince George’s County [that] Police that a Detectives witness had knowledge for these This witness was persons responsible homicides. interviewed at which time he stated that and co- [Perez] they defendant admitted that had committed an armed robbery of an Animal which Hospital Bladensburg during time both victims were killed. 9, 2000,
Shortly after midnight August police officers arrested Perez and took him to the homicide unit of the Prince (“CID”), George’s County Investigation Criminal Division where he arrived at 12:31 a.m.
Perez’s Statements The State’s case Perez against included statements that he made George’s County to Prince homicide detectives arrested, after during approximately hours he was but before he presented district court commissioner. considered in a most favorable light to the evidence According here is that time.1 happened during what *6 room in the homicide interrogation Perez was taken to an unit of CID. Hoffman August
At 1:00 a.m. on Detective approximately Hoffman Robert Turner entered the room. and Detective Perez. indicated that rights with Perez reviewed Miranda2 he attorney, his and did not want an and rights he understood executed a waiver form. minutes, Turner interviewed forty
For about Hoffman and associates, information, his his Perez “about his personal stuff, friends, school, jobs, things and background family, At “about a murder point, they that' nature.” some talked any him Thomas Perez denied in- involving and Gordon.” volvement in the murder.
The officers left Perez alone the room for about about the minutes while conferred with other detectives they a.m., 2:25 Hoffman and Turner investigation. status of At Perez for another 80 reentered the room interviewed although they minutes. At some had not talked to point, yet Gordon, the detectives told Perez that Gordon said Perez was any in the incident. Perez continued to deny shooter gave involvement. The detectives Perez water and left him a.m., alone they between 3:45 and 4:00 while conferred with progress investigation, other detectives about in the including going “what was on in the interview.” a.m.,
Turner resumed the
from 4:40 until 5:50
interrogation
with a
at
request.
point
bathroom break
Perez’s
Prior to this
light
suppression
1. We review the
record in the
most favorable to the
State,
prevailing party
suppress,
as the
on Perez's motions to
and defer
suppression
to court’s determination of first-level facts. See Dash-
85, 93,
But,
(2003).
iell v.
Perez was left alone again CID, Rhone, a.m., a member of the Detective Nelson 7:25 He “had to shake Perez over a “asleep leaning tablet.]” found time, him Perez was not handcuffed at this up.” him to wake time, while in the room. or at Perez, himself and gave After Rhone introduced waking *7 He then went get together[.]” Perez “a little time to himself information. biographical over some another Miranda a.m., completed At and Perez 9:15 Rhone a Perez was some water and given advisement and waiver. break for bathroom. Perez the murders. Perez
Rhone then about questioned Gordon, that had done several differ- knowing “they admitted Bowie,” B in ... and that he knew Gordon had ent and E’s it. he had never seen Gordon with but he claimed gun, on,” however, “one time” in which “Later Perez described “just Mustang. were in Perez’s black driving” he and Gordon they he needed some and talked about money, Gordon “said road, him.” But robbing on the side of the stopping somebody out a anybody, “pointed spot, could not find and Gordon they ... that one and rob that go place.” and said let’s into inside. Perez “knew he was inside of go Gordon told Perez to had lobby pictures dogs animal because hospital a[n] minutes,” only He “two to three and saw stayed and cats[.]” to the lady,” years Returning one about 40 to 50 old. “white car, were he Thomas Gordon no near” and “[t]old ... After the car at parking what was inside.” “[described location, he went in.” Perez heard “[s]aid another “[b]oth ... stay then ran out.” didn’t more “[H]e some shots and car.” “All of a “jumping than a brief second” before his running They drove out[.]” Thomas Gordon comes sudden “asked him to reduce his to Bowie.” When Rhone “straight ... what he did.” writing, into that’s oral statement Perez with a form to write provided At 12:07 Rhone p.m., lines, Perez wrote six and then Rhone down this statement. was written and answers. statement questions recorded “[sjomeone 2:20, At brought about 2:00 about completed p.m. some [fast] food[.]” Hoffman, who had gone
Another break ensued. Detective learned about returned to the station and sleep, home to Hoffman reentered the p.m., Perez’s statement. At 2:58 reviewed Miranda room, Perez rights, and interrogation again he present Perez then stated that executed waiver. “he inside shooting and the and that went during robbery out.” “He heard shoot three place [Gordon] check times[,]” a short then “lied the Gordon “followed scene[.]” statement, a second which was two time later.” Perez wrote follow-up questions signed and then answered pages, p.m. written answers. He the written statement at 3:31 began it at 5:01 Perez also “drew a of how completed p.m. map area hospital general animal is laid out and the surround- their ing hospital[,]” showing they parked the animal “[w]here car[.]”
At 7:00 Detective Ismael Canales en- approximately p.m., Perez of his Miranda tered the room and rights, advised *8 (lie for a voice stress detec- preparation administering analysis tor) him perform. test that Hoffman asked to Perez a signed to to stating agreed release form that he submit the test. p.m. Canales left the room at 8:10 midnight August
Around on Detective Hoffman returned room with another Miranda waiver and a the interrogation second form. Because Perez had been in type waiver hours, 24 Hoffman had been a custody almost advised good senior that it would be a idea to ask Perez to investigator what he described as his to be to a right presented waive He district court commissioner within hours after arrest. he on his word typed a waiver statement that had brought processor. in, head down on the Hoffman came Perez had his
When table, a.m., At 12:08 Hoffman reviewed apparently sleeping. 12:10, Miranda At and Perez executed a waiver. rights, custody Hoffman advised Perez that since he had “been hours[,]” Police for over 23 he George’s County of the Prince before a District Court Commis- right presented had “a be He then asked Perez a series of sioner within hours[.]” responded voluntarily seven to which Perez that he questions, at the station for additional he agreed questioning; to remain threatened, or coerced into promised anything, had not been waiver; he had been advised of his remaining signing or he had not been rights being questioned; constitutional before in custody; denied the use of the bathroom or while telephone an to be attorney present. and he had not asked for Hoffman that Perez “was no reported very cooperative, Perez did not tired to problem staying past appear hours.” Hoffman, had time to at different sleep who noted that “[h]e sleep. times.” Hoffman then left Perez to statements, police brought on Perez’s Thomas Gor- Based County facility don from an Anne Arundel detention to CID. this hours and required Rhone took several explained 11:30 Detective judge’s signature. Beginning p.m., Berg- at about the murders. spoke strom with Gordon 10 to Perez morning August Rhone returned on the ask murders, about his involvement based what again learned from and from Perez’s voice stress police had Gordon Rhone, another reason detectives wished According test. that it again autopsy to talk with Perez was showed “[t]he ... person could not have been one that committed this incident, one was a knife and one weapon weapon because a gun.” in the at about interrogation
Perez received food room 7:15 advised Perez of his Mi- again a.m. At 12:05 Rhone p.m., another Miranda waiver and, randa at rights. signed Perez began 12:10 another “commissioner’s waiver.” He p.m., *9 “to Rhone wanted p.m. at 3:07 because written statement third from between I had gathered information that some clarify The statement next one.” and now this first interview [the] answers, and then Rhone and questions as written started to [how] in reference had] that [he “the information discussed just person[.]” one have been it couldn’t “initially Perez and depth,” in more talking “started They Perez contin- a knife.” about anything that he knew den[ied] Rhone At that point, any weapons. he had deny ued radio, telling hear, what Gordon two-way let Perez via the one that that Perez “was said detective. Gordon another on,” having Perez admitted point knife.” “From that had the and did not use knife, it to Gordon gave but said that he a purse, “ran out with said that Gordon He also weapon. in the being involved dollars for his share thirty him giving situation “to the entire explain Rhone’s request incident.” At He writing. completed so in Perez did again[,]” all over p.m. at 4:00 third statement took Perez to the Rhone
During morning August commissioner’s office. room; in an interview intermittently questioned
Perez was threatened; anything inappro- promised never he was never food, water, bathroom, rest, sleep. or denied and never priate; advisements, waiv- throughout to be alert appeared Perez He ers, clearly logically. He interrogation. spoke were not interrogations for a Perez’s lawyer. never asked George’s County the Prince videotaped or because audiotaped lacked the facilities.3 Department Police line, reference, derived from our the time For ease forms, is as follows. transcripts review of and waiver August 9: a.m.
12:31 arrived at station. Appellant days. gave entirely of these two As an different account 3. Perez indicated, light presented evidence in the most previously we have prevailing party, State. to the favorable *10 1:03 a.m. advised of Miranda being rights, signed after
Appellant, a waiver. a.m.
9:15 advised of Miranda again being rights, after Appellant, a waiver. signed
10:15 a.m. an oral statement. Appellant gave p.m. 12:07-2:00 gave first written statement.
Appellant p.m. 3:01 advised of Miranda after
Appellant, again being rights, waiver, another oral statement. signed gave p.m. 3:31-5:01 written
Appellant gave second statement.
7:09 p.m. advised of Miranda after Appellant, again being rights, to a signed Appellant waiver. consented voice stress analysis test.
August 10:
12:08 a.m. advised of Miranda Appellant, again being rights, after a waiver. signed
12:10 a.m. being right after advised of Appellant, prompt present- ment, signed a waiver.
12:05 p.m. advised of Miranda Appellant, again being rights, after signed a waiver.
12:10 p.m. after advised of Appellant, again being right prompt a waiver. presentment, signed 3:07-4:00 p.m.
Appellant gave a third written statement.4 Court, Appellant, 4. in his memorandum filed with this states that this given p.m.-2:00 p.m. statement was from 1:07 August 11: morning. in the to a commissioner was taken
Appellant Discovery Motions And of a At the end 2001. April to begin scheduled Trial was March, the circuit hearing early evidentiary day three At his statements. suppress Perez’s motions court denied statements Perez’s that argued Perez’s counsel hearing, arrest, the absence because of illegal an resulted from involuntary. cause, were the statements probable on traditional was based argument involuntariness circumstances, and empha- totality referenced grounds, Delay facts. Perez’s version sized unclear, we shall While factor to consider. as a argued *11 law, as common Maryland on was based argument assume the Constitutions. the Federal and State well as on obtain informa- tried to counsel discovery, defense During Perez, and in implicating Mahar’s statements regarding tion to Mahar. police got as to how information particular, hearing, the State 29, suppression after the On March implicated Mahar counsel that before to defense disclosed in the murders. Perez, been implicated Mahar himself had “Tony County police, Prince George’s a written statement him, were incar- while both that Mahar told Fox” had stated these cerated, buddy” had committed that Mahar “and crimes. information, sought counsel various defense
Based on this relief, and a hearing including suppression a new forms of 2000, 5, August that on alleged The defense hearing. Franks5 Prince at the both incarcerated Mahar and Fox were when Center, Fox while Mahar told Detention County George’s in Bladens- hospital animal robbing were an buddy” “he and a couple. killed an Indian “buddy” his burg, defense, George’s Prince August to the According the police Fox at interrogated homicide detectives County Delaware, S.Ct. 57 L.Ed.2d 438 U.S. v. 5. See Franks (1978). relayed station. Fox Mahar’s confession. The next day, Mahar, involvement, detectives interviewed who denied any claiming instead that he overheard Perez discussing the mur- ders with Gordon and both of implicating them. Detective Hoffman then applied for and obtained arrest warrants for Perez and Gordon.
Defense counsel claimed that both statements Fox and coerced, Mahar were and that Mahar’s confession to Fox because, Perez if exculpated only there was one other partici- crime, black, pant in the and that person was then it was (who Mahar and fit Tharpar’s Gordon Shashi description assailant) her who robbed and murdered the Tharpars.6 The court all denied the defense motions. Trial followed on 17-20, April 2001. trial,
During the court granted State’s motion to exclude Fox, the testimony of as well as the of four testimony and emergency medical witnesses who heard Shashi Tharpar describe her murderer as a tall black man who had been in the result, animal earlier that hospital day. As a defense counsel Mahar, that, elected not to call in the asserted belief without that predicate testimony, the logical value of Mahar’s confes- sion was lost. murder,
The jury convicted Perez of two counts of felony robbery two counts of with a deadly weapon, two counts violence, in the using handgun commission of a crime of *12 to commit conspiracy robbery deadly with a He weapon. was sentenced to two terms of life parole, without two terms of twenty years, the first five to be parole, served without and a term of ten years. trial,
Perez filed motions for and a new which discovery were denied.7 appeal This followed. "Caucasian,”
6. The record indicates that Fox and Mahar are Perez is of descent,” "Puerto Rican and Gordon is "African American.” discovery 7. Perez moved for new and a trial based on evidence that appeal. defense counsel discovered after Perez noted this The new
The Issues we vacate his why Perez advances ten reasons should convictions, we have rephrased: which erred in that defense counsel finding
1. The trial court seating a Batson violation and in the chal- committed juror. lenged statements to should have post-arrest police
2. Perez’s the fruit of an they been because were suppressed without illegal probable arrest under warrant issued cause. have post-arrest
3. Perez’s statements to should were suppressed they involuntary been because detention, coer- product days pre-charging of two cion, threats, denial of his promises, right counsel.
4. The trial court in denying erred defense counsel’s that, jury for a instruction under
request Maryland law, judicial a defendant must be taken to a officer unnecessary delay without no event later than 24 hours after arrest.
5. The trial court erred in state- excluding exculpatory by Tharpar.
ments Fox and Mrs. 6. The trial court erred in to conduct a failing suppres- hearing
sion at which defense counsel could have examined newly discovered witnesses Fox and Mahar. 7. The State should have been ordered to disclose all Mahar,
statements made by including any recanta- tions.
8. The State should have been ordered to disclose the
identity any police officer who obtained information from Fox. person Myers
evidence that a named Antonio had confessed to the prior Argument in murders several months to the arrest of Perez. this originally Court was scheduled before those motions were decided. We argument ruling removed the case from our docket and remanded for a subsequently on the motions. The trial court denied the motions. *13 16 have been ordered to disclose files
9. The State should the information that Fox regarding and documents provided police. hearing have held a Franks
10. The trial court should misled the intentionally the police determine whether arrest warrant. court in the for Perez’s application only delayed presentment arising shall reach issue We we guidance, of error. For also assignment in the third jury to address the instruction issue exercise our discretion in the evidentiary and the issue fifth assignment the fourth assignment.
DISCUSSION
Delayed
I.
Presentment
Issue
Prompt
Need For
Presentment
A. The
admissible,
confession,
be voluntary
A
to be
must
(2)
(1)
law;
process
the due
Maryland
under
non-constitutional
of the United States
clause of the Fourteenth Amendment
22
Declaration of
Maryland
and Article
Constitution
(3)
v.
elicited in conformance with Miranda
Rights;
(1966).
Arizona,
436,
1602,
86
“The
coerced
whether
or
use of
false,
used to extract them
is forbidden because the method
v.
404
Lego
Twomey,
offends constitutional
U.S.
principles.”
(1972).
477, 485,
619, 624, 30
Given the
92 S.Ct.
L.Ed.2d
a custodi
interrogation,
coercive nature of custodial
inherently
involuntary,
to be
unless the State
presumed
al confession is
a reasonable doubt that
statement
beyond
shows
State,
581, 595,
A.2d 370
voluntary.
v.
337 Md.
See Hof
(1995).
the Federal Constitution and State com
Under both
law,
mon
of the circumstances must be considered
totality
Ball v.
Although voluntariness, recognized the has Appeals Court factors, given range consideration should be to a wide including conducted;
where the was its who was interrogation length; conducted; the present; how it was whether defendant was given warnings; physical Miranda the mental and condition defendant; of the age, background, experience, the edu- cation, character, defendant; intelligence when the defendant taken before a court fol- commissioner arrest; lowing physically and whether the defendant was mistreated, physically psychologically pres- intimidated or sured. (citations omitted). 596-97,
Hof,
[a] promptly served on the defendant after the arrest. The judicial defendant shall be taken before a officer of the District without and in unnecessary delay Court no event later than 24 hours after arrest[.] State, (1978),
Prior to
v.
282 Md.
384 A.2d
Johnson
the
criterion for
of a
general
admissibility
confession was
Johnson,
Appeals
voluntariness.
In
the Court of
applied
per
hour
as a
se rule of exclusion and held that
requirement
than 24
statements obtained more
hours after arrest would be
328-29,
suppressed.
exclusionary (1974, 2002 Repl. at Md. Code currently appears statute Article, Proceedings Vol), and Judicial § 10-912 of Courts provides: judicial officer after before to take defendant Failure arrest. confession
(a) inadmissible. —A not rendered Confession because solely evidence excluded from may not be after arrest judicial officer not taken before defendant was Maryland Title specified by time period within Rules. *15 Title the
(b) strictly with comply to b of Effect of failure provi- with the strictly comply to Rules.—Failure Maryland taking to a Rules Maryland pertaining 4 of the of Title sions is one only after arrest judicial a officer defendant before in others, the court factor, by considered to be among of a confession. admissibility the voluntariness deciding 404, 421-22, State, 825 375 Md. in v. As Williams explained a swift (2003), did produce decision] McClain 1078 “[the A.2d of the law enforce urging the strong At legislative response. session, in its next enacted the community, legislature, ment Code, section 10- Laws, (Maryland 577 chapter Maryland 1981 Article).... There Proceedings 912 of the Judicial Courts delayed a reaction Johnson that the statute was is no doubt v. See also Woods reaction to McClain.” and an immediate (1989)(“Acts 1981, 614, ch. 591, A.2d 236 State, 556 315 Md. v. to our decision Johnson reaction legislative 577 was the 133, 121, State, 510 A.2d Md.App. 68 ...''); Young v. State (“As 1,1981, of effect. (1986) lost much its of Johnson July 599 the se abrogated per legislature the Maryland that date On Johnson....”). of exclusionary rule voluntari made it clear that legislature Maryland The test, of all relevant a consideration the determined ness is be weight the did not address legislature factors. because, a factor, under presumably given any particular test, judge generally the hearing totality of the circumstances
19
factor,
in the context
each
considered
weight
determines
determi-
review of a voluntariness
On appellate
whole.
nation,
findings
first level factual
court defers to
appellate
an
the ultimate constitutional
in a de novo review of
engages
but
7-9,
State,
1,
575
See,
Md.
835 A.2d
Polk v.
378
e.g.,
issue.
(2001).
554,
State,
569,
A.2d
(2003);
420
v.
364 Md.
Wilkes
judge
a three
argued
the instant case was
before
After
ruled,
Court,
in a
trilogy
of Appeals
of this
Court
panel
circumstances,
cases, that,
present
under certain
weight”
considering
when
given “very heavy
ment should be
435,
State,
Facon v.
375 Md.
of circumstances. See
totality
State,
404,
(2003);
453-54,
375 Md.
Williams (2003), v. A.2d Williams 30, 2000, July a.m. on defendant was arrested at 4:10 bite dog of two armed robberies. He suffered suspicion arrest, and was taken to the treatment. during hospital room at the station at He was an interview placed *16 9:25 a.m. name, but by had identified himself his brother’s
Williams
own name in his
paycheck bearing
pocket.
found a
his
robbery
from the Prince
unit
George’s County
Detectives
“to
some basic information
began preliminary questioning
get
in
and even about his involvement
the two
suspect
about [this]
423,
During
375
at
20 detectives to an interview transported
Homicide Williams hours, the next 28 three different detectives room. Over was left alone intermittently interrogated Williams. Williams Before taken to the commissioner sleep overnight. being 1, p.m. August for an initial at 3:07 on 47 hours appearance arrest, after his several oral and written state- gave Williams confessing ments to the three murders. “[m]any that factors can Appeals, recognizing
The Court
confession[,]” specifically
bear on the voluntariness of a
ad-
much
a violation of the
weight
prompt present-
dressed how
in
the voluntariness of a
assessing
ment rule should have
423,
statement.
Other education, questioning, age, expe- team or sequential [and] rience, defendant,” or or mental attributes of the do physical 429-30, Md. at 825 A.2d weight. not have such decisive Instead, significance, may 1078. these factors “assume decisive, only particular become in the context of a case-based effect.” Id. at their on the actual extent of coercive A.2d 1078.
21
But,
factors is a third”
these two kinds of
“[l]ying between
430,
The
de-
The
circumstances,
10-912,
that,
under certain
ruled
section
A
“very heavy weight.”
in
must be
delay
presentment
given
(1)
delay
heavy weight only when
delay
given very
must be
(2)
(3)
deliberate;
designed
it was
unnecessary;
416,
a confession.8 375 Md. at
obtaining
the “sole
purpose”
A.2d 1078.
murder conviction was vacated because
felony
Williams’
gave
indication” that
it
such
gave
court
“no
suppression
and the trial court “did not
delay
to the continued
weight
416, 434,
so.” Id. at
Hiligh
(2003),
Once detective jurisdiction, about robberies in that interrogating Hiligh ished juris- about other robberies outside Hiligh questioned was during inculpatory made more statements Hiligh diction. interrogations. those Prince County tried for Howard and
Hiligh separately trial, County In his Howard County robberies. George’s pres- that the unsuccessfully argued defense counsel Hiligh’s confession, both justified Hiligh’s exclusion of delay entment at trial. direct hearing appeal, at a On suppression delay held that the was unneces- divided of this Court panel should have been suppressed. and that the confession sary trial, contrast, County Hiligh’s in the Prince George’s regarding neither elicited nor to evidence pointed trial counsel direct we held that he delay presentment. appeal, On delay. from the preserve any challenge arising had failed to County and rationale of the Howard the outcome Citing George’s County granted for Prince appeal, Circuit Court A for a new trial. divided postconviction petition Hiligh’s reversed, that the failure to raise finding of this Court panel was not ineffective assis- delay prejudicially the tance of counsel. the post- affirmed disagreed of Appeals
The Court A.2d 1108. Md. at See ruling. court’s conviction explained: Court the deliberate effect of the coercive argued Had counsel been required would have the court presentment, whether and examine heavy weight give delay very that the proving burden of heavy had shouldered its State this rec- coercion. On induced by confession was not reached ord, of the conclusion light especially County appeal, in the Howard Appeals of Special Court court, in is, indeed, that the possibility a substantial there *19 motion, found the would have ruling suppression on the if Even and ruled it inadmissible. involuntary confession evidence, he into allowed the confession judge the had Williams, to would, on required, request, have been under be accorded weight the to jury heavy instruct the on Furthermore, had coun- unnecessary delay. deliberate and there is the same substan- point jury, that to argued sel the confession would have found jury tial that the possibility in- and, other judge’s in accordance with involuntary structions, it. disregarded 474-75,
Id. at 1108. 825 A.2d
Facón (2003), 435, 1096 In Facon v. 375 Md. 825 A.2d for the solely that a of more than hours held Court may involuntary have resulted an interrogation purpose evening After arrested on the robbery. being confession to 1999, 31, Maryland the District of on Columbia August warrant, County. George’s waived extradition to Prince Facón station at George’s County police the Prince He arrived at 1,1999. p.m. September 10:00 in an interview room. From immediately placed
Facón was
County robbery
George’s
10:30 until 11:55
a Prince
p.m.,
life,
problems, and
family, drug
detective discussed Facon’s
Miranda,
waiver,
rights
sign
arrests. Facón refused to
prior
but did not
question,
he would discuss the crime
saying that
“
”
... make
anything,
to write
to
a statement.’
[or]
‘want
443,
Md. at
He was left alone in
room from
until 12:22
time,
At that
officer returned
September
a.m. on
2.
same
discussed the same
until 3:20 a.m. After
they
topics
a.m.,
break until
a different officer discussed
another
4:25
matters about Facon’s life. He told Facón that “he
general
absolutely relay
“would
that
has a bad narcotic habit
[Facón]
state’s
... and that was about the best
attorney
[he]
to the
”
The Court of
first examined
extraterritorial
4-212, addressing
effect of Md. Rule
arrest,
the
hour
twenty-four
period following
[w]hether
which
are
to
an arrestee to a
during
police
required
present
commissioner,
only
court
when the arrestee enters
begins
jurisdiction,
the
or includes that
of time
prosecuting
period
jurisdiction.
following
neighboring
arrest in a
440,
The
held “that the
Before The court interrogation. suppression custodial during made motion, stating: denied Perez’s Court, testimony of the defen- considering after rebuttal, also review- and the officers and their
dant Courts, from the con- opinions Appellate ing pertinent and of the circumstances denies totality siders motion to suppress. Court, Perez renews his that his confes- argument this due to the pres-
sions should have been suppressed entment, the “con- interrogation,” the “tag-team approach denials of interrogation repeated [face] tinued He com- length interrogation[.]” guilt[,]” “[t]he motion, “denied the without suppression that the court plains of fact.” making any explicit findings countered that the circuit court’s decision initially
The State that Perez was given should be the number hours upheld, he was allowed actually subjected questioning; food, drink, given adequate and that he sleep; Williams; considering Hiligh, After opportunities. bathroom *21 Facón, however, conceded that “Perez is enti- and State
26 and trial.” suppression hearing for a new tied to a remand for two reasons. agree, We
First,
any specific
not make
court did
suppression
findings
required
are not
findings. Only
factual
when
v.
ruling, may we do so. See Gilliam
suppression
review the
(1990).
637, 647,
there are
State,
A.2d 744
When
320 Md.
579
evidence,
for our
findings
necessary
are
conflicts in the
review, however,
cannot affirm.
we
constitutional
independent
253,
In the case
Lodowski,
We do
an
findings,
a lack of
only
specific
if the
were
problem
because
remand,
to address is whether to
that we would have
option
convictions,
make
for the court to
find-
vacating
without
State,
Md.
v.
371
existing
on the
record. See Southern
ings
(2002).
93,
whether we
111,
13
We need not decide
807 A.2d
are com-
findings
remand for
because we
could and should
for a new trial and
the convictions and remand
to vacate
pelled
because of the second reason.
hearing
suppression
Court,
while not
reason is that
Williams
The second
articulat-
procedure[,]”
rule or
mandated
adopting “a new
to assess a deliberate violation of
ed a standard for how
rule,
court and a
suppression
to both a
applicable
433,
Ordinarily,
appellate
1078.9
27
knew
or trial court
review,
hearing
that the
the Court assumes
375 Md.
Chaney,
it. See State v.
applied
law and properly
the
(2003) (“trial
to
168, 179,
presumed
are
judges
Importantly,
cases,
cases, or to causes of
pending
to all
to certain
pending
decision,
the date of the new
action or events that occur after
in
decision
to the
before
holding
applies
parties
the new
Trucking,
that decision. American
produced
the court that
592,
The
before the court do
parties
Court heavy mandates a conclusion that the the Williams court concurring a matter of law. In her weight applies standard as Adkins concludes that it does. dissenting opinion, Judge that, in this for the reasons set forth We conclude may be con evidentiary suppression hearing a new opinion, or holding before us. We are not that one ducted the case applied heavy weight Hiligh, In the standard and affirmed 10. the Court by way post grant trial of conviction relief. the circuit court's of a new expressly question suppression The Court did not address the of new Facón, right hearing implicit. hearing, to such a is In the Court but the recognized again heavy weight expressly the applied the standard and right evidentiary suppression hearing to a new on remand. matter of are inadmissible as a of statements appellant’s more is man- heavy standard weight of application law or determination, ruling its the trial court makes dated. After merely holding are subject to review. We appellate will be determination in the first trial court makes the instance. is warrant- suppression hearing a new
Having decided that
ed,
reasons.
convictions for two
appellant’s
we must vacate
First,
matter,
are not
to do so
permitted
as a
we
general
Southern,
111-12,
Court erred
suppres-
rule on the
of a detention
a new
constitutionally
Md.
vacating
sion
without first
the convictions. 371
hearing,
however,
111-12,
at
The suppression whether there regarding make a hearing and determination and sole of delay purpose for the deliberate unnecessary was determination, and, apply based on that obtaining a confession recently Appeals standard. The Court of appropriate defer to a trial that an court should appellate reaffirmed facts, a violation of even when the issue is findings court’s Amendment, close appel- which requires especially the First (2003). 1, 21, A.2d 575 Polk v. late review. deliberate, unnecessary, in Whether involves, at a confession purpose obtaining and for the sole in first level fact finding. least part, specifically recog- in Johnson v. State Appeals The Court of all are much less for delays unnecessary, nized that not a confession. 282 obtaining and sole purpose deliberate (1978). 314, 329, delay may a example, A.2d 709 For Md. to deter- necessary procedures, be for routine administrative issued, verify be mine document should charging whether in the docu- specified charging of the crimes the commission in ment, aid likely significant to obtain information be rele- property, or loss of to obtain averting persons harm to information to be likely significant vant non-testimonial with who have been involved persons might other identifying arrestee, or to the loss of evidence. Id. prevent that, us, the record indicates to the prior In the case before named Mahar confessed to some- arrest of someone appellant, committed person one named Fox that he and another confession, Mahar and At the time of that question. crimes County Prince Deten- George’s Fox were incarcerated police Fox The Presumably, police. tion told Center. Mahar, them that appellant then who advised questioned had committed the crimes. someone named Gordon warrants and Gordon. appellant obtained arrest victim, Tharpar, note that the Shashi It is also relevant to in the dying her murderer as a tall black man identified *25 below. The record indicates that Gor- declaration discussed a detective testified that description. Additionally, don fit that kept not be an arrestee could understanding that it was his a confession and obtaining purpose for the unnecessarily on leads. up to follow kept appellant that the police waivers, note, to the effect of moving before Finally, we 10-912, even of in delay presentment, to section pursuant standard, cannot be the heavy weight that meets the type the it is Additionally, finding involuntariness. sole reason is voluntariness. Vol- that the ultimate issue repeating worth of the circumstances by totality determined the untariness is one factor. Since rule is with the compliance and Williams, factors is deliber- that one of the if it is determined prompt presentment requirement with the noncompliance ate confession, that factor is obtaining for the sole purpose very heavy weight. be given therefore, remand, argu- consider the the court should
On and, with relevant evidence by made all parties, ments statement, heavy determine whether to each respect so, utilize this If the court should applies. standard weight deter- determination. In in a voluntariness making standard voluntariness, court should admissibility, thus mining consid- identify the circumstances disputes resolve factual totality. it as part ered
C. Waiver
determination, the court should
As
of the voluntariness
part
by appellant.
waivers executed
also consider
waiver,
or the lack
did not base its decision
Williams Court
thereof,
waiver is valid. 375
voluntary
but it did state that a
432-33,
Indeed, the
squarely
Md. at
v.
718, 721-22,
(1983),
As observed in the federal courts have not been in addressing delay delay uniform in when the waivers, exceeds 6 Similarly, respect express hours. with the federal have not Many courts been uniform. courts have held that a valid waiver of Miranda a rights constitutes valid waiver of prompt presentment. The District of Columbia has so held even in delay situations where the is or comparable See, longer even than the in the e.g., delay case before us. States, Outlaw v. United 1192, (D.C.2002) (“We 806 A.2d 1200 have held that a valid repeatedly waiver of an individual’s Miranda rights is also a waiver of his Mallory right (internal presentment without unnecessary delay.”) quotations Bell, omitted), and United v. 958, States 740 A.2d 963 (D.C.App.1999).
Many courts have stated that a Miranda waiver constitutes a waiver of prompt presentment, but despite using unqualified language, frequently, always, facts but not involved cases, relatively period delay. short In some of the it appears delay was not deliberate for a malevolent purpose, See, cases, United and in other it is not clear. e.g., States v. Salamanca, 629, (D.C.Cir.1993) (“The Miranda 990 F.2d 634 decision undercut the need for substantially exclusion of custo- dial statements on the solely ground delay bringing defendant magistrate, before a as one of the purposes of appearing magistrate before a is to have the defendant’s explained in a Miranda rights explained to now rights him— States, v. warning.”); Pettyjohn United 419 F.2d (D.C.Cir.1969) (“by validly waiving his Miranda to si- right attorney, lence and an with the agreeing speak police, [appellant] also waived Mallory right thereby has after when the focus was on traditional voluntariness and Mi- light Maryland
randa. That must remain the focus statute. quickly possible.”) as as magistrate brought to be before States, omitted); (internal v. United O’Neal quotations Miranda, Cir.1969) that, if a (5th (noting following F.2d 131 this, if, knowing warnings, and given necessary is suspect then claim to be harmed he cannot speak, he still chooses to taken to the Commis being Mallory under (6th sioner); 956 F.2d Christopher, v. United States Cir.1991) finding appel the District Court’s (upholding a waiver of also constituted rights lant’s waiver of Miranda *27 Barlow, v. United States right prompt presentment); his to (“waiver (6th Cir.1982) 954, of one’s Miranda F.2d 693 959 U.S., v. 318 McNabb[ a waiver under rights also constitutes 332, 608, States Mallory”); 87 L.Ed. United 819] 63 S.Ct. U.S. Cir.1977) (9th X, 585, that (stating F.2d 591 Boy v. Indian 565 a waiver of also constitutes rights a waiver of Miranda Lukens, v. 735 States presentment); United prompt (“Even assuming arguendo 1 (D.Wy.1990) n. F.Supp. of the statements unnecessary, suppression delay in view of his valid Mi inappropriate nonetheless be would ”). randa waiver....
Moreover, voluntariness delay be relevant to the long may a waiver, even if a Miranda waiver is otherwise of a Miranda prompt presentment. to to See right effective waive (9th Cir.1988) (“The Wilson, F.2d 1081 States v. 838 United rights on the of Miranda be- government’s reliance waiver detention period pre-arraignment comes weaker as the ... can itself form the basis delay increases. If unreasonable involuntariness, delay may that same also finding for a waiver.”). of the Miranda suggest involuntariness us, 8 6 appellant signed In the case before waivers: 2 rights expressly relating to Miranda expressly relating are not suggesting While we presentment. Pettyjohn follows and that a Miranda waiver Maryland law of the prompt presentment constitutes a waiver of violation rule, totality of the of the circumstances and part waivers are determination. relevant to a voluntariness 34 us, was advised of his in the case before Perez
Additionally,
It
not clear
immediately and
is
rights
repeatedly.
Miranda
document,
copy
charging
given
whether Perez was
or,
so,
if
when.
It is not clear
or arrest warrant
application,
more of those documents contained a state-
whether one or
judicial
to a
officer.
It is
right
presented
ment of a
to be
of his
orally
right
Perez was
advised
unknown whether
other than when he executed written
presentment
prompt
referring
right.
may
to that
These factors
expressly
waivers
of a statement.
be relevant to voluntariness
here
the effect of a waiver of
relevance
is
particular
Of
prompt presentment
after the
presentment occurring
prompt
violated.
In the context of this
may have been
requirement
case,
in the event of a
rights,
prompt
to Miranda
by analogy
violation,
waiver,
a valid
a confession
followed
presentment
be tainted.
necessarily
after a valid waiver would not
obtained
298, 314,
Elstad, 470
105 S.Ct.
Oregon
See
v.
U.S.
State,
54, 68-69,
(1985);
v.
Kennedy
L.Ed.2d
(1980) (a
after
A.2d 1376
confession obtained
voluntary, despite
commissioners held
earlier
two different
rule).
Meyer
v.
prompt presentment
violation
(1979),
427, 437-39,
To the extent that the unclear, why reason it constitutes another the one before us is remand, court, review the issues de on should suppression novo. Jury Instructions
II. remand, parties the trial court and we shall guide To related of whether the trial court should have reach the issue Md. jury presentment requirement instructed about Rule 4-212. trial, to instruct the
At Perez’s counsel asked trial court requirement by reading about the jury prompt presentment Instead, do it gave Rule 4-212. court refused to so. instruction, following pattern regard- taken from a instruction statements made a defendant: ing was vol- deciding whether the statement [defendant’s] *29 surrounding consider all of the circumstances the
untary, statement, ... was taken including whether the defendant unnecessary before a district court commissioner without 36 arrest, and, not, if
delay following whether that affected the voluntariness of the statement[.] (2001). See MPJI-Crim. 3:18 argues
Perez that the trial court erred in to tell the refusing jury provides “that the law that a defendant must be taken judicial a before officer of the District Court without unneces- sary delay and in no event later than 24 hours after arrest.” view, In his the court’s brief mention of unnecessary delay in that: materially incomplete
(1) “it contained no reference to any specific period time,” jurors so that did not have a “yardstick by which ... ‘unnecessary’ measure what could be” or whether day delay presenting two Perez to the commissioner statements; affected voluntariness of his (2) upon impeachment instruction did not touch “[t]he rule, 24 in weighing credibility value of the hour of some witnesses.” State’s The contends that the pattern jury given State instruction the trial court was sufficient because: (1) jury “the was made aware of the Rule 4- substance of 212(e), even if the number ‘24’ actually was not contained instruction,” within the trial judge’s through defense coun- sel’s cross-examination of detectives and closing argu- ment; and
(2) ... “giving requested instruction would have been misleading” in that it “would a ‘hard and rule suggest fast’ where none exists[.]” challenges
When defendant the voluntariness of a trial, custodial confession at the court give requested must if voluntariness instruction even the court is convinced the State, statement was voluntary. See v. 337 Md. at Hof State, 370; 654, 666-67, Brittingham 655 A.2d v. (1986); 65, 73, Bellamy A.2d 45 v. 435 A.2d Md.App. (1981), denied, (1982). cert. pattern jury Md. 376 instruction that the provides jury must find that a defendant’s doubt, statement was a reasonable if the voluntary beyond finds, so it it jury give weight should such as it believes it
37 the circum- totality a of utilizes The instruction deserves. factors, in delay including various and lists approach stances presentment. recognized Hiligh, Appeals the Court
In Williams and
of a confession
the voluntariness
challenging
defendants
that
to the standard
with respect
instruction
jury
are entitled to
however,
indication,
There is no
by Williams.
adopted
law,
the
state
accurately
does not
instruction
pattern
the
standard,
be
jury
the
should
and
for the Williams
except
The differ-
circumstances.
all relevant
to consider
instructed
that, in deter-
be instructed
should also
jury
is that the
ence
voluntariness,
any delay
must determine whether
it
mining
deliberate,
the purpose
and for
unnecessary,
so,
and,
very
factor
give
if
a confession
obtaining
that,
if the
“[e]ven
held
Hiligh
Court
weight.
heavy
evidence,
into
the confession
... allowed
judge
[suppression]
Williams,
would,
request,
been
required,
have
he
under
to be accorded
heavy weight
on the
jury
instruct
the
Md. at
Hiligh, 375
unnecessary delay.”
deliberate
waivers,
waiver,
or
as
this
In the event of a
Whether the hour instruction, from different question into an incorporated be instruction, on the circumstances heavy weight depends issue, cases, is an hour delay where each case. some case, the delay In this where not be the issue. period may 24 hour hours, to include the it seems advisable exceeds hours, however, it than 24 is less provision. When trial, if, it would not be the context given should into jury believing mislead the State has at least 24 hours. If it is care should be taken to that the is given, explain State events, automatically not entitled to 24 hours. In all the jury should be instructed that unnecessary delay is but one of to consider. factors vacated,
Because Perez’s are being convictions we need not decide whether a failure to include a reference to the 24 hour error, period, requested, as constituted reversible or whether *31 cross-examination, exhibits, counsel, argument by refer- to the 24 hour the ring period, adequately jury advised of the under Rule 4-212. requirements imposed Dying III. Declaration Perez contends that the trial court abused its discre materially tion and his defense prejudiced by precluding testi mony identify from four witnesses who heard Shashi Tharpar her person who shot as a tall black male. Because Perez skinned, light is 5'7" and and there is no evidence that Perez fired the shots that killed either of the Perez Tharpars, hoped to use this of the as an description exculpatory dying assailant declaration.13 The admissibility Tharpar’s Shashi state retrial, likely any ments is recur so we shall address it for the benefit of the court parties. remand and the 5-804(b)(2), Md. Rule if the un
Under declarant is prosecution, available as a witness a homicide the rule against hearsay does not exclude a “statement aby made declarant, while believing the declarant’s death was immi- hoped Tharpar’s description 13. Perez also to combine Mrs. of her Mahar, African-American, assailant with evidence that who not murders, buddy grounds said he and committed these as for raising reasonable doubt as to whether he or Mahar was with Gordon Tharpars. when he murdered the The trial court ruled that Mahar's against penal out-of-court statement interest was inadmissible because testify Mahar was not "unavailable” at trial. Md. Rule 5- See 804(b)(3). dispute There was some factual as to whether Mahar would rights assert his Fifth Amendment if called as a witness. Given our trial, decision that Perez is entitled to a new whether Mahar’s statement may depend testify is admissible on whether he is available to at new trial.
39 of what nent, or circumstances the cause concerning The her death.” impending believed to be his or declarant but must to a may response question, be made statement 6A knowledge. Lynn See personal the victim’s reflect (2d 804(2):1(b), § at 425-26 ed. McClain, Evidence Maryland 2001). the victim who shot identifying person Statements State, 543, 553, v. within this rule. See Connor fall 186, denied, 906, 7 699, 368 82 S.Ct. A.2d cert. U.S. 171 288, 298, (1961); 380 Md.App. v. L.Ed.2d 100 Jones (1977), Frye, v. grounds by rev’d on other State A.2d 659 (1978). A.2d 1372 Md. depends declaration admissibility dying statement, whether, he or at the time the victim made Connor, 225 Md. impending.
she believed that death was
See
all hope
“The
abandonment of
required
at
A victim’s
for medical
does not
request
Jones,
In
recovery.
mean that she holds out
we
hope
that a victim of a
blast had abandoned all
recognized
shotgun
taken to
though
of
even
he asked to be
hope
recovery
statements
help.
medical
victim’s
hospital
requested
not
his
dying
negated by
“requests
that he knew he was
were
assistance, which indicated
for amelioration
hope
for medical
Jones,
at
hope
recovery.”
McLApp.
but not a
of
pain
Here, motion granted the trial court State’s Tharpar’s description exclude about Mrs. of her testimony assailant, three proffered by after defense counsel statements To emergency officers and one medical technician.14 police defense counsel to one state- admissibility, pointed establish technician: emergency ment an medical Honor, I’ve Branan got Your Christie [Defense Counsel]: say ... and she’s that the victim was conscious of going shot, shot, of where she was she’s covered being conscious talk, blood, could she her mouth full blood so she wiped alert, oriented, was conscious of her she was she was she her, who he worked pain, person she said she knew shot here.[15] at the office. I have her statement that she my objection It does not address [Prosecutor]: fact, just opposite. knew she was dying. Jones}, law, Lee [Willie I have case Counsel]:
[Defense Connor versus State .... All Special Appeals, Court of impending these cases that the belief of agree [declarant’s] in which the may death be inferred from circumstances at time the declarant makes the declarant is found . declarations.... that if able to
The Court: But I think to be cautious he’s dying— is aware she is establish she There’s no evidence that she knew she was [Prosecutor]: dying. have evidence? you
The Court: Do that, trial, Cowling Corporal 14. We note at Charles testified that he also responded hospital. Tharpar lying He Dr. face to the animal found blood, pool Tharpar lying down in a and Mrs. also on the floor. He thought or dead.” When his radio she was "either unconscious sounded, "very though, began "she to talk to in a calm” voice. [him]” *33 help” and that she had been shot and "[S]he [him] [him] asked "told pain.” and an that she was in He called for additional officers ambulance. that, only Thompson 15. Branan’s statement said when she asked Mrs. assailant, replied whether knew her "she with he was new.” she shortly very thereafter. Counsel]: died [Defense She knew —she in the face. She knew she’d been shot She head. been shot thought been shot in the She’d she’d eye. neck[,] eye[,J and over the other Of over one dying. thought And the she was course she somehow she did. Her circumstances jury can infer from the may impending be inferred from the in her death belief in which she.... circumstances more of the facts? Any
The Court: facts, no. Any more Counsel]: [Defense Your motion in limine is granted. right. All Court: of the very not that she was aware The Court is satisfied added.) (Emphasis death. impending first requirement, from noted that he also had statements Defense counsel need to and out that “we pointed three witnesses assailant, need to identity ... of the and we establish Perez, dying ... and that’s what these declarations exclude it a dying did “not believe it’s Repeating are all about.” declaration[,]” motion. Defense granted the court again ... four statements into “put counsel then asked to have all the motion in limine.” The court ruling upon evidence for the statements, only “placed allowed them to be but accepted record.” on the statements, the four witnesses related that
In their written describe her assailant: they Tharpar heard Shashi animal 13:20 hospital Romba to the at Sgt. responded M.L. “laying He found Tharpar 1999. Shashi September out.” was alert “drifting under the counter” and She that a black male “in a deal of “She stated great pain.” but during day had the store three time[s] entered cat.” described him “as a tall asked about a She questions thin black male.” He asked
Police Denault at 13:27. Shashi responded Officer suspect, “for a and she stated Tharpar description and that he was tall.” She also “stated that he was black into the three times.” hospital that the had come suspect *34 Branan, technician, an medical stated emergency Christine assessment,” she asked Mrs. doing patient [a] that “while she felt she been shot. Tharpar might “where have She ” her neck and ‘the back of head.’ She stabilized her replied her from the amount of airway copious blood[.]” “clear[ed] with her her did she know “kept by asking She conversation may yes. the who have shot her. She said person [Bran- at replied asked her did he work the office she nan] [and] Shortly [they] hospital.” with he was new. arrived at he in the Police officer T. Boone stated that while was Hospital, Tharpar trauma room at Prince General Shashi name, birth, him her date of and “stated that age. told She wearing gray was a black male his 30’s a suspect He “tall” with “short hair.” that shirt.” was She “stated suspect prior shooting.” she never met the She was dead at 15:06. pronounced Perez’s delayed presentment grounds vacating
Given the conviction, we need not decide whether the trial court abused on excluding solely its discretion evidence based guide limited verbal of defense counsel. To the court proffer remand, however, and the we shall address Perez’s parties that the court should have admitted Mrs. complaint Tharpar’s of her lone assailant. description out, there cir- pointed compelling As defense counsel was support finding Tharpar cumstantial evidence to Shashi was aware of her death. At the time she described impending assailant, Tharpar eyes her Mrs. had been shot over both and in the neck. She also suffered severe blunt force trauma to near her lying the back of her head. She was found murdered times, husband, blood; pool in a of her own at she had to have and, accounts, speak; her mouth cleared of blood to all she great pain. explicitly was in a deal of She stated that she was aware that she had been shot in the head.
Moreover, there was circumstantial evidence to support finding that her statements were reliable. de- Witnesses despite pain scribed her as alert her and wounds. She answers to obviously provide responsive questions able descrip- Her medical personnel. and from a number In the hour to them were consistent. tions of her assailant wounds, she identified a of her head a half before she died tall, black, description supported That male assailant. single, not and that he was that he was not the shooter Perez’s claim with crimes, inconsistent potentially and was for the present took an active present Perez was theory State’s *35 and murders. during robbery role
Nonetheless, required the necessarily that nothing seewe she was that Mrs. believed Tharpar trial court to conclude effect, nor was no statements to that about to die. She made told her police personnel medical or there evidence that her faith in a no evidence that she exercised so. There was or she dying, her that she was that indicating manner belief indicating that belief. other sentiments or wishes expressed Therefore, erred necessarily we cannot that the trial court say not sufficient to establish concluding in that the evidence was die soon. Tharpar that believed she would Mrs. us, however, for concerns is that the trial court asked
What facts[,]” it was “not satis- immediately “more then ruled that impend- first very requirement, fied that she was aware death[,]” satisfied with the saying why without it was not ing the three reviewing “facts” that were and without presented for officers. This brief rationale by statements whether the trial excluding the statements leaves us uncertain it for the defense to necessary court understood that was not evidence, by Tharpar direct such as statements Mrs. present her, that or statements to in order to establish she believed she would soon die.16 (2003) (“The § generally Fed. 804.05[4][bl
16. See.
Weinstein's
Evidence
may
by
declarant's belief in the imminence of death
be shown
statements,
through
evidence such as
declarant's own
or
circumstantial
wounds, opinions
physicians,
declarant’s
the fact that
the nature
rites,
pres-
in
declarant
received last
and statements made
declarant’s
States,
140,
see,
added);
e.g.,
ence”)(emphasis
Mattox v. United
146 U.S.
151-52,
50, 54,
(1892) (sense
impending
13 S.Ct.
Our proffered the court’s failure to consider the heightened written who were with the victim be- by police statements *36 and the time she died. tween the time she was discovered were a of witnesses who detailed her fatal head There number her can injuries, copious bleeding, pain. only her and We tipped whether this additional evidence would have speculate because the evidentiary admissibility, scales favor court did not review it. apparently case, however, in this and the need for a new trial
Given
may
statements
be raised and
admissibility
that the
of these
retrial,
only prospec-
decided anew at
we raise these concerns
discussed,
anticipate
For the reasons we have
we
tively.
direct and circum-
thorough
proffered
consideration of all the
Tharpar
stantial evidence
on whether Mrs.
believed
bearing
denied,
(2002) (in
537 U.S.
123 S.Ct.
ADKINS, J., dissenting, and opinion concurring filed an SALMON, DAVIS, HOLLANDER, and SONNER joined by WENNER, JJ.
ADKINS, dissenting. Judge, concurring Perez’s convic- majority’s I in the decision to reverse concur tions, with its rationale separately disagree but write 12, 15, and 37 hour presentment its conclusion that with have been neces- might Perez’s statements delays preceding sary.
Majority’s Reversing Rationale For conclusion that reversal is join majority’s I cannot in the ... “the Court articulated only because Williams required pres- how a deliberate violation of the standard for to assess view, does not follow the my holding entment rule[.]” Md. v. Appeals’ Court of decision Williams (2003). set forth in this A.2d 1078 For the reasons section, deci- majority’s rationale for its disagree I with section, I concur that following As set forth in the sion. reversal, for the same reason cited requires but Williams *37 court did not suppression the Williams Court—because by parties, recognizing evidence not that the 17. While raised it, may support given whether the consideration should be to not hearsay applies. exception to the rule excited utterance heavy weight unnecessary delay that it was to giving indicate that Perez’s statements. preceded in Williams cannot be reconciled with the
The holding to reverse so that the trial court can decide majority’s decision Williams, whether, of to admit Perez’s statements light The Williams Court heavy them giving weight. without convictions, did not significantly reversed three murder but admissibility challenged confessions should hold that the Instead, Williams Court be reconsidered on retrial. suppression by concluded that the court erred unanimously unnecessary delay preced- to the failing give heavy weight statements; three the Court then held that the ing Williams’ 416, id. at See be excluded. challenged statements must (when Appeals gave unnecessary delay A.2d 1078 Court of clear heavy weight, murder statements “it becomes preceding inadmis- involuntary that those statements were and therefore sible”). view majority’s is inconsistent with the holding This a new at Williams only suppression hearing that necessitates Perez’s delay preceding which the trial court could find the necessary given heavy weight. and need not be statements law, rejected, possibili- a matter of Williams The Court as view, necessary. my be found we ty that this could in this case. must do same rationale on its concern that the Circuit majority’s
The
rests
County
opportunity
for Prince
needs an
George’s
Court
Williams,
whether,
rule
under
the prompt presentment
decide
delay.
Perez’s
Yet the
lengthy presentment
was violated
courts, like
Williams Court
Maryland
“nearly
emphasized
courts[,]”
long
delaying presentment
all
have
held
is a
of the prompt presentment
obtain
confession
violation
of voluntariness. See
against
finding
rule that
weighs
Williams,
at
47
of more
with a clear explanation
the defendant
provide
to
Williams, 375 Md.
statutory rights.”
and
basic Constitutional
430,
that a violation of that
1078. The reason
at
825 A.2d
in
voluntari-
determining
given special weight
“must be
right
that,
to
is
right
designed
protect
is
when the
it is
ness
of
way
calculating
be no
may
practical
there
transgressed,
Id.
transgression.”
of the
actual effect
judicial recognition
longstanding
That rationale reflects the
that,
of a crime is not afforded
person
when a
accused
during
statutory protections given
present-
constitutional
commissioner, may
it
never be
before a district court
ment
he
whether
that
“had
been
suspect,
to determine
possible
Commissioner,
...
ac-
would have
timely to a
presented
interrogations
...
and confessed
[subsequent]
quiesced
431,
an
Unnecessary Delay Reversing Rationale For court, remand, majority suppression “[t]he directs hearing regard- conduct a new and make a determination [to] for the ing unnecessary delay whether there was deliberate in that purpose obtaining Implicit confession[.]” sole that all holding delay preceding is the three of prospect challenged might necessary. statements have been As above, I that apply noted believe this conclusion fails Hiligh. of Williams and holdings that, I with and Hiligh, submit to be consistent Williams we must hold as a matter of law that the reason that the patent did not take Perez “down the hall” to the available they incriminating commissioner was wanted obtain doing majority statements from him before so. What omits is that detectives who testified for the State opinion the three admitted that during day suppression hearing they Perez initial despite continued to interview his denials of involvement, and even after he admitted knowledge some involvement, were not with his they previous because satisfied statements:
(cid:127) they Detectives Hoffman and Turner testified that accused during
Perez of involved the murder the first being an forty began minute interview that less than hour after arrest, August Perez’s at 1:00 a.m. on 9. Perez denied or involvement. any knowledge a.m., (cid:127) then returned from 1:40 to 2:20 They left Perez alone words, and, by telling for information” in Turner’s “fished he the shooter. That second said was Perez Gordon minutes, a.m. approximately until 3:45 interview lasted 80 knowledge or involve- deny any Perez continued to But ment.
(cid:127) hour, they left Perez alone while the next detectives During room “about adjacent each other in an
conferred with what was on in the interview.” going (cid:127) inter- that he returned alone to explained Detective Turner he thought 4:40 to 5:50 a.m. because
view Perez from regarding evasive in his comments being Perez was deny Perez knowl- Although any murders. continued involvement, it” an or Turner “didn’t take as indica- edge about any questions tion “that he did not want to answer rather, that,” an indication “that he didn’t want to but as than he had.” already himself more implicate (cid:127) still denying At 7:25 a.m. on because Perez was August involvement, Detective Rhone was “as-
any knowledge or *40 informa- any to in and talk to Mr. Perez about signed go ... he did Although tion he had about the murder[s].” CID, not know when Perez had arrived at Rhone contin- ued Perez “one on one” over the next seven to interview hours, began by with bathroom breaks. Rhone only in order to getting biographical “rap- information build with him and so he would understand who I was and port what I needed out of the interview.” Perez continued to a.m., or involvement. It was 10:15 deny any knowledge after Rhone Perez nearly began three hours interview arrest, and 10 after Perez even admitted hours his before gun. approximately seen Gordon with a It was having two hours later —12 hours after Perez’s arrest —that he began his first written statement.
(cid:127) at completed p.m., After Perez that statement 2:00 there was interview, during
a break in the which detectives dis- cussed the new information. Not satisfied with Perez’s statement, first Rhone reentered at and ob- p.m. 2:58 tained another Miranda waiver and a second statement.
(cid:127) After Perez his second written statement at 5:01 completed Detective to conduct a voice
p.m., Hoffman asked Canales complete p.m. stress test. That was at 8:10 (cid:127) morning sometime again during Rhone returned Perez 10 because the detectives wanted to talk to
August on the that “it could theory, autopsy, about their based ... inci- person not have been one that committed this dent, a knife and one weapon weapon because one was about again was a He asked Perez his involvement gun.” murders, what had been autopsy, in the based on the Gordon, and the results of Perez’s voice learned from stress test. as a matter of law Hiligh dictate that we hold
Williams interviewed Perez that this evidence from detectives who reason for conclusively delaying established sole was to obtain statements incriminating Perez’s Williams, initially from him. Like Perez denied participating murders, George’s County in the but Prince detectives refused his statements and continued their accept exculpatory with each other questioning consulting regarding while interviews as continued in Both they progress. results of the different sequential cases feature “in and out” interviews time, which the lengthy period during officers over a confined, breaks, bathroom to an 8 or 9 except for suspect single peephole foot room with a locked door with a square Indeed, while denied involvement and no windows. Williams two hours after the only police began the murders crimes, denied question him about those Perez involve- ment in the murders for more than ten hours. Tharpar
Although
majority correctly
determining
observes
delayed presentment
of Perez involves first
why
level factual
it
does not
that there is
findings,
notably
suggest
*41
suppression
support
finding
evidence in this
record to
any
had some
reason for
police
“necessary”
delaying
that
the
Appellate
routinely
sup-
Perez’s
courts
review
presentment.
records to determine whether
there is sufficient
pression
findings
evidence to
the
court’s factual
support
suppression
whether,
evidence,
of that
the court’s
conclu-
light
legal
121, 147,
State,
See,
366 Md.
v.
e.g.,
correct.
Scott
sion was
denied,
(2001),
535 U.S.
S.Ct.
cert.
A.2d 862
court’s
(2002)(“We
[suppression]
review the
152 L.Ed.2d
State,
to the
most favorable
findings
light
in the
factual
standard,
the legal
review
but we
to a clear error
pursuant
374-75,
novo”)-,
de
Ferris v.
conclusions
record to
377-79,
suppression
(1999)(relying
Williams.18
375
(cid:127) years Williams was 19 old when he arrested and interroga- year years
ted. 17 old Perez was two still younger, living as a minor in his care. parents’ (cid:127) Williams, In contrast to in which part delay was uncertainty
attributable to about in- possible Williams’ murders, volvement in the part delay no here can be uncertainty attributed to about Perez’s in- possible volvement the murders. Williams was arrested with- out a warrant of an suspicion robbery on unrelated earlier, only occurred hours without any suspicion that he might be involved the murders to he eventually which confessed. But Perez was on a arrested warrant for possible involvement in the nine month old murders to State, he Hiligh which confessed. also v. Cf. (2003)
461,
(cid:127) Similarly, while some of the delay Hiligh Williams and be
might
uncertainty
identity
attributed to
about the
arrested,
none of the
person
delay here can be
uncertainty
attributed
about Perez’s
identity.
a.m.,
placed
18. Williams was arrested at 4:10
into an interview
regarding
room at 9:25 a.m. His three written statements
the murders
(15.5
arrest,
p.m.
July
were made at 7:40
on
30
hours after
10.25 hours
interrogation began,
completed
after
and 6.5 hours after Williams
his
(17.75
robbery);
p.m.
July
statements about the
9:58
on
hours after
arrest,
interrogation began,
12.5 hours after
and 8.75 hours after the
(more
robbery
complete);
p.m.
July
statements were
and 4:08
arrest,
interrogation began,
than 34 hours after
28 hours after
and 25
robbery
complete).
hours after the
were
statements
See Williams v.
404, 408, 423-24,
(2003).
Md.
(cid:127) Williams, here is none of the In further contrast other crimes. Williams investigation of
attributable to
*43
his
that precipitated
about the robberies
was questioned
arrest; he
his
arrest,
nine hours after
the first
during
legiti-
the police
crimes when
to those
quickly confessed
to ascertain “basic
him in an effort
mately questioned
... about his involve-
and
suspect
information about their
robberies,
that he could be identified
in
two
so
ment
Williams,
1078.
(cid:127) of the effect degree an even than greater To overnight by was exacerbated delay Perez’s presentment interview room. While Williams confinement in a small sleep during room in the interrogation was left ques- Perez was single morning” “midnight period; Perez “overnighters.” tioned two consecutive during intermittently questioning between sleep only was left to sessions; after his and second statements gave he first statement after the and his third overnighter the first second. instance an even clearer than presents
Perez’s case
for the
unnecessary delay
purpose
of deliberate and
Williams
type
present-
This is the
of
obtaining
specific
of
confessions.
4-
that,
Appeals,
of
Rule
according
ment
to the Court
delay
A.2d
375 Md. at
Hiligh,
forbids.” See
“absolutely
case,
only
like this
address
this
Hiligh,
1108. Williams and
not the broader
delay,
particular “species”
presentment
reasons, with which the
that occur for other
“genus”
delays
of Appeals
to be concerned. Once
Court
majority appears
law,
Maryland
apply
we must follow and
question
decides
Hiligh require
The least that Williams ruling.
its
us
12, 15,
delays
conclude is that the
and 37 hour presentment
and, thus,
statements were unnecessary
before Perez made his
heavy weight.19
were entitled to
not
that these
were unneces-
delays
The court did
decide
it
that it was
sary,
giving
weight
nor did
indicate
to such
The court’s terse reference to “the
delays.
totality
circumstances,” in
bench
at the end
single-sentence
ruling
its
day
of the three
makes no mention of
suppression hearing,
delay
established
delay.
significant presentment
Given
record,
this
and defense counsel’s
on it as
emphasis
grounds
cannot conclude from mere silence that the
suppression,201
court
this
when it decided that all of
properly weighed
delay
(2003),
I do not view Facon v.
Waiver two waiv- With to the effect of the “commissioner’s respect join majority’s sugges- that Perez I cannot signed, ers” refer- that a Miranda waiver that does not include tion might operate suspect’s right prompt presentment ence to I would not be right. Again, a waiver of that believe that as consistent with Williams.
The Williams cited the effective use of Miranda Court precedent suspects waivers as for the advise rights *45 to analogous right prompt presentment an manner of their that right. and to obtain a written waiver of be easily effectively The same can and used approach an right prompt presentment with to the to for respect accused detained to an arrest. pursuant It would be simple police matter for the to advise the accused as well right prompt presentment his or her to before a Commissioner, that the is a
District Commissioner Court not connected with the and that the judicial police, officer Commissioner, will inform the accused among things, other including with which he or she is charged, of each offense charges, attached to those furnish penalties allowable with a written advise the copy charges, the accused counsel, to make a right pre-trial accused of his or her determination, if ... has been release and accused jurisdiction of the District charged felony beyond with Court, hearing or her to a before a right preliminary of his inform the that he or she judge. The could defendant presentment agree waive that to may right prompt subject right to the to end the interrogation, submit to at time and demand to be taken interrogation any promptly before a Commissioner. added).
Williams,
(emphasis
Perez’s third two, one, but waivers. But the followed not interrogation, that any Court caveated Williams
delay
waiver, must be rea-
presentment,
in
even with a
as an outside limit
already
The Rule
sets
hours
sonable.
truly extraordinary
and, absent
presentment,
for
some
circumstance,
any
not
incurred
expect
delay
we would
period.
to extend
that time
interrogation
beyond
purposes
added).
(emphasis
Id. at 433 n.
Jury Instructions Although agree majority’s I with the concern that courts should refrain from instruction that giving may suggest that the has a 24 “safe harbor” to jury question State hour I see little risk in about the 24 hour suspects, telling jury in which the guideline, presentment delay even cases less than 24 hours. It would be a matter to instruct simple jury, majority recognizes, as the “the State is not entitled to 24 automatically hours.” case,
As for does presentment delay this which involve hours, Hiligh excess of 24 I read both as Williams that, asked, implicitly recognizing when the trial court must instruct that the law an jury requires present which, judicial unnecessary delay, to a officer without accused circumstances, is within hours except generally unusual Perez’s counsel. after arrest. That was made request view, for the trial court to defense deny it was error my *47 counsel’s request. the deliberate special weight as an instruction about
Just
jury
important
the
with an
unnecessary delays supplies
and
was
determining
challenged
for
whether
statement
yardstick
too,
24
an instruction
the
hour
voluntary,
regarding
so
does
that,
guidance
I
with Perez
with no
as to the
guideline.
agree
fail
“unnecessary delay,”
jury may mistakenly
the
meaning
a voluntariness
weigh
delays heavily against
finding.
to
such
(1995)(instruc-
581, 602,
Finally, in resolving such instructions have considered might the jury Perez’s during happened of what conflicting accounts it signif- have found jurors might For example, interrogation. aware of the prompt that the were icant *48 benchmark, deciding whether the 24 hour and of obligation 12, 15, 37 hours statements and Perez made the voluntarily claimed, he made arrest, or whether his as the after later, he was just in the hours before those much statements commissioner, as Perez claimed.22 taken to the days interrogation differed dramatical- 22. Perez's account of his two wrote no ly account. Perez testified that he from the detectives' nights, custody and that he he had been in for two statements until period reflected of several hours. His statements wrote all three over signed him to write. He all of the Miranda what Detective Rhone told he was taken to the commissioner waivers less than an hour before and to, him even He did so because the detectives told commissioner. significance. though aware of their he was not him, Perez, punched According screamed at Detective Hoffman shirt, him, point grabbed “yoked” him around to the him his and him body the room. Hoffman also threatened that his hit the walls of that, confessed, he would be penalty promised if he with the death burglary. charges released his would be reduced to attorney, repeatedly to no that he asked for an Perez also claimed before, previous and his explained He that he had been arrested avail. they “this time assaulted requests for counsel had been honored. But me."