Rush v. State

939A.2d 689 Renee Katherine RUSH Cindi Maryland. STATE Term, 31, Sept. 2007. No. Maryland. Appeals of

Court of Jan. 2008. Hefland, Rockville), brief, H. (Barry

David A. Martella on for petitioner/cross-respondent. Keller, Gansler, Atty. (Douglas Atty.

Diane E. Asst. Gen. F. Gen.), brief, on respondent/cross-petitioner. BELL, C.J., RAKER, HARRELL,

Argued before BATTAGLIA, GREENE, WILNER, (Retired, ALAN M. CATHELL, (Retired, assigned) DALE R. specially specially assigned), JJ.

BATTAGLIA, J. judice presents

The case sub this Court with the issue of detective’s modification of the whether police to state that Petitioner could warnings appointed counsel of Miranda v. requirements “at some time” satisfied the Arizona, (1966). 384 U.S. 86 S.Ct. 16 L.Ed.2d 694 presents determining scope This case also us with of our appellate jurisdiction “cross-appeal” by to consider a a defen-

73 from the interlocutory appeal tion to consider interlocutory Rush’s cross-appeal, does the record in this case establish that Rush’s statement to the police was voluntary product improper inducement?2 advisements, modified,

We shall hold that the satisfy did the requirements of Miranda and although Rush did not have the right cross-appeal, she did have the right, the State’s appeal, to defend ruling of the trial court on alternative grounds.

I. Introduction 1, 2006, May Petitioner, On Rush, Cindi Renee Katherine was arrested by Corporal Chinn and other members Prince George’s County Police Criminal Investigation Division charging on warrant her with degree murder the first Patricia Caniglia. transported Rush was to the District III Jernig Station where she was interviewed Kerry Detective digitally recorded, The interview was saved onto a an.3 DVD, and later began: transcribed. It Cindi,

DETECTIVE JERNIGAN: It’s right?

THE DEFENDANT: Mm-hmm. ya?

DETECTIVE JERNIGAN: How are THE DEFENDANT: All right. My

DETECTIVE JERNIGAN: name’s Detective Jernigan. THE DEFENDANT: Mm-hmm. you why

DETECTIVE JERNIGAN: Do know you’re here? THE DEFENDANT: No. I’d really like to know. Special 2. As we Appeals jurisdiction shall hold that the Court of lacked interlocutory cross-appeal, to consider Rush’s we will not address the question. State’s second According transcription recording, began to the the interview 3. p.m. p.m. p.m. at 6:27 and concluded at 10:23 At 9:12 Rush was offered food, which she declined. ya. tell Well, gonna I’m Okay. JERNIGAN: DETECTIVE Caniglia? it Ms. of—was the death investigating We’re Uh-huh. DEFENDANT: THE her. know you I know JERNIGAN: DETECTIVE Yeah. THE DEFENDANT: Okay. JERNIGAN:

DETECTIVE funeral. to her I went DEFENDANT: THE I do wanna And what Okay. JERNIGAN: DETECTIVE was killed. she where incident about talk Okay. DEFENDANT: THE Okay? JERNIGAN: DETECTIVE Okay. DEFENDANT: THE any problems you have Do JERNIGAN: DETECTIVE me? talkin’ fine. No. That’s DEFENDANT:

THE been— You ever right. All JERNIGAN: DETECTIVE know. wanna you Anything DEFENDANT: THE before arrested You ever been JERNIGAN: DETECTIVE or— No. DEFENDANT:

THE at all? police with DETECTIVE JERNIGAN:—dealt No. DEFENDANT: THE I talk Before can right. All JERNIGAN:

DETECTIVE advise TV, I have to aware, watch you you’re I’m sure ya, you questions I ask can’t rights. constitutional you your I’ve done that. until Okay.

THE DEFENDANT: opportunity— you give And JERNIGAN: DETECTIVE Okay. THE DEFENDANT: talk to wanna you if decide JERNIGAN:—to DETECTIVE I you about. talk what I wanna that’s not. But me or or— one time them at to work used you understand Yeah, mm-hmm. DEFENDANT: THE Anthony? the, know JERNIGAN:—know DETECTIVE THE I DEFENDANT: used to live with them. I used to work for them about years ago. three Okay. DETECTIVE JERNIGAN: THE DEFENDANT: Mm-hmm. Well, All right. get

DETECTIVE JERNIGAN: let’s way. out formalities

THE DEFENDANT: Okay.

DETECTIVE JERNIGAN: Need to drink anything anything or—

THE okay. DEFENDANT: No. I’m Okay. JERNIGAN: DETECTIVE wonderin’, THE I Actually, was I don’t DEFENDANT: know I’m even why detective, here. The police showed up me, at my door and arrested I said had a warrant. Cindi, Okay.

DETECTIVE ya get JERNIGAN: how far’d in school?

THE grade. DEFENDANT: Ninth you DETECTIVE JERNIGAN: Do know how read? THE Yeah, I’ve DEFENDANT: taken GED classes and I just been go haven’t able to take the I’m very test. I (unintelligible). my CNA license and everything. All Okay. right. DETECTIVE JERNIGAN: Just to prove to me that know you how to read— THE DEFENDANT: Mm-hmm. gonna

DETECTIVE JERNIGAN:—I’m let read por- me, tion of okay? this statement for THE DEFENDANT: Okay. you

DETECTIVE JERNIGAN: Can move chair on up? Read this first sentence— THE DEFENDANT: Mm-hmm. top

DETECTIVE JERNIGAN:—on the line me. THE DEFENDANT: “I now going you your am to to read rights under the law.” I’m All Very right. good. JERNIGAN:

DETECTIVE it we’ll over go loud then to out you the rest read gonna okay? together, Okay. DEFENDANT:

THE you to read going “I’m now JERNIGAN: DETECTIVE If not understand you do the law. under your rights I will me and stop say please I you, something If right to remain silent. You have explain you. it to can you say up right, anything this give choose you talk You have the in court. you used against You have any questions. lawyer you’re before asked a with lawyer have, you you have right, can’t lawyer If you want being questioned. you while no time at you at some one, will be provided afford one you questioning our point during If in time cost.” at some your right that’s anymore, you don’t wanna talk decide Okay? well.

THE DEFENDANT: Mm-hmm. ya? All sense to that make JERNIGAN:

DETECTIVE Yeah. THE DEFENDANT: through we right. go All So DETECTIVE JERNIGAN: you first understand here. The one questions series I, just, just ya? I I read to what Yes. THE DEFENDANT: me at to talk to willing You’re JERNIGAN:

DETECTIVE a lawyer? this time without Yes.

THE DEFENDANT: Okay. promised I haven’t DETECTIVE JERNIGAN: talk to me at this inducements to you any anything given time; is that correct? Right.

THE DEFENDANT: Okay. you’re And not under DETECTIVE JERNIGAN: any drugs— the influence No.

THE DEFENDANT: this time? alcohol at JERNIGAN:—or DETECTIVE THE DEFENDANT: No.

DETECTIVE Okay. JERNIGAN: THE I I lawyer DEFENDANT: mean do need a or som- it, just ethin’ or am I is in here for— DETECTIVE Well— JERNIGAN: THE I DEFENDANT:—questioning? mean— DETECTIVE you that, JERNIGAN:—if decide at point in time our during questioning you feel that that’d you, you best for then let me know Okay? that.. THE DEFENDANT: I’m just wonderin’ it’s if why asking I lawyer. know, need a You but anything you guys need to know, willing I’m to help. Sign me,

DETECTIVE just JERNIGAN: there for and your note on the bottom signature below what level of education have. added).

(emphasis Rush signed Rights Advice of and Form, Waiver interview during the made inculpa- several tory statements which she committed to writing. subsequently

She on was indicted one count premeditated murder, with two counts of a robbery dangerous weapon, two counts of conspiring robbery commit dangerous with a weapon, counts of using handgun two in the commission of a felony violence, or crime of and oné degree count of first timely assault. Rush filed a motion to which suppress in she alleged her statements were obtained by Detective Jerni- gan following advisements that did not meet requirements of Miranda that, addition, the statements were ob- through and, therefore, tained threats and inducements were not voluntary. During suppression hearing, Corporal testified, Chinn and Detective Jernigan after which Rush testified; Jernigan Detective related that he had modified the standard regarding advisement appointment counsel by adding phrase “at some time at no cost” to lawyer] indicate that is going appear. “[a magically It’s going lawyer to take little time for to be to her provided know, for a representation. You something that’s going just take a little time.” ob were inculpatory that her statements

Rush contended 436, Arizona, in violation of Miranda v. U.S. tained 1602, 16 694,4 Jernigan’s Detective L.Ed.2d at because S.Ct. could have to whether she caused confusion as modification Additionally, Rush during questioning. the present counsel I a Jernígan, “do need her to Detective argued question that have caused that should lawyer?,” request was a for counsel argued that Rush also questioning. detective cease were voluntary they not as statements were inculpatory her and through threats inducements. obtained as was not confused argued that Rush Conversely, the State understood stated that she rights, her that she orally by Detective which were provided advisements Rights which she also read on the Advice Jernigan and that Rush’s question The State also contended Form. Waiver not invocation unambiguous I an lawyer?” “do need a Jernigan’s response of that Detective right her to counsel and question- entirely any during At time our up you. “This is just let me know” was ing, you lawyer, feel need statements argued The further that Rush’s sufficient. State voluntary. were had been hearing

The ruled that Rush’s statements judge Miranda, Jernigan’s due Detective in violation of obtained reciting that “at some time” when phrase insertion of the The if not afford one. lawyer provided would be Rush could “left a false phrase that the addition of the Court stated now” and therefore that she couldn’t one impression of Miranda and that her would statement violated the dictates hearing specifically The judge that suppressed ground. on be the motion to granting he was noted on the record that of involuntariness. ground suppress on alternative 1602, 1612, Arizona, 436, 444, 16 v. 86 S.Ct. In Miranda 384 U.S. 4. 694, (1966), Supreme Court that when held L.Ed.2d 706-07 being by police he suspect custody, questioned is in before criminal silent, that that "has a to remain must be advised he him, against may he does make used evidence statement attorney, presence either retained has a to the he appointed.” 80

The State noted an appeal decision to the Court 12-303(c)(3) Special Appeals pursuant to Section of the Courts Article, (1974, and Judicial Proceedings Maryland Code 2006 RepLVol.). Rush noted she what termed a “cross-appeal,” challenging the circuit court’s ruling statements should not be suppressed ground on the alternative they involuntary. were

The appellate intermediate court held that the circuit court by erred suppressing Rush’s statements on Miranda grounds, applying standard Supreme articulated Court Duckworth v. Eagan, 195, 2875, U.S. 109 S.Ct. (1989), that, L.Ed.2d totality, conclude taken their the advisements provided adequately Rush communicated her Rush, Miranda. State rights under 174 Md.App. (2007). 921 A.2d In a reported opinion, the court jurisdiction determined that it had to consider whether the statements should have been on suppressed the alternative however, involuntariness ground, and upheld the suppression on Id. ground. 282-83, that at 921 A.2d at 347. The interme- diate appellate court not only plain considered language of 12-303(e)(3) Section of the Courts and Proceedings Judicial analogous Article but also statutes in federally Illinois and and reasoned that: general principle

[T]he that a court reviewing may uphold the final judgment a lower court any ground adequate- on ly shown by the record is Maryland. well-established in legislature The right created the of immediate for appeal at here in State issue order to equalize opportunities the parties to criminal cases have meaningful for correction pretrial evidentiary erroneous rulings, made on constitu- grounds---- tional The legislative goal equalization is most thoroughly efficiently and accomplished when gen- scope eral of appellate review principle applied State’s it is in appeal immediate appeal defendant’s from a final judgement.

Id. at 293, 921 A.2d at 353.

Thereafter, Certiorari, Rush filed a Petition for of Writ and the State filed a Conditional Cross-Petition Writ of Certio-

81 State, 595, Rush v. 399 Md. ran, granted. we of which both (2007). 925 A.2d

II. Discussion erred in Appeals of Special the Court Rush contends of the ad- modification concluding Jernigan’s that Detective counsel to read right had the to appointed visement that Rush one, one will be and can’t afford lawyer “If want you no not violate the time at cost” did at some provided argues that Detective afforded Miranda. She protections from different significantly modification is Jernigan’s v. Eagan, in Duckworth warnings changes made at 106 L.Ed.2d 195, 109 U.S. at S.Ct. 355, 101 S.Ct. Prysock, U.S. California (1981) curiam), Supreme in which the (per cases L.Ed.2d 696 advisements conformed held variances standard Court her did not with Miranda because the warnings provided counsel appointed her of her advise adequately temporal ap- linked the present questioning interrogation. time after point counsel pointed Jernigan’s additional lan- argues Rush also that Detective included to minimize the likelihood purposefully was guage during the inter- request appointed that Rush would counsel view, warnings provided as the were after some particularly additionally contends had occurred. Rush questioning initial taking in not into Special erred Appeals the Court suggesting that the circuit court’s discussion consideration Jernigan’s likely to create false Detective alteration and lack of of Rush’s limited education impression because that Rush could justice system the criminal familiarity with during questions. present counsel appointed not have Court’s argues Supreme that the Conversely, the State Prysock Duckworth have established that opinions in standard Miranda advisements do not modifications Mi- satisfy inadequate otherwise render advisements assertion randa rejects The also Rush’s requirements. State calculated to elicit confes- language was additional references to Rush’s characterizes the lower court’s sion and education and lack with of contact police pertaining the issue of voluntariness a potential rather than violation.

The State further contends that the Special Court of Ap peals jurisdiction lacked to consider whether Rush’s state involuntary ments were because the had State noted an inter locutory from the of appeal grant a motion to suppress under 12—302(c)(3) Section of the Courts and Judicial Proceedings Article. The argues appellate jurisdiction State in Mary is dependent upon land a statutory grant of power, and 12—302(c)(3) Section. of the Courts and Judicial Proceedings Article not sanction a cross-appeal. does The argues State that the appellate intermediate court’s reliance on an Illinois Johnson, People opinion, 208 Ill.2d 281 Ill.Dec. (2003), N.E.2d and the federal courts’ construction of 18 § it U.S.C. which termed the “federal analog” Section 12-302(c), 12-302(c)(3) was because misplaced, Section is sub stantially from different the Illinois and federal statutes in potential that the charges State must be pursuant dismissed if Maryland statute appeal State’s is unsuccessful. In reply question, to the Cross-Petition Rush contends that the Court Special Appeals correctly addressed the issue of voluntariness, 8-202(e)5 citing Maryland Rule for the proposi tion that if one party appeal, files an party may other likewise file an within appeal a certain time frame. Rush also argues that because issue clearly involuntariness was record, in the articulated it would be waste judicial time resources to consider the alternative ground during appeal. the State’s

A. Miranda Violation a circuit reviewing grant or denial of a court’s evidence, motion suppress ordinarily we only consider Maryland 8-202(e) 5. Rule states: (e) Appeals by party—Within days. party other ten If one files

timely appeal, any party may notice of appeal other file a notice days within appeal ten after the date on which the first notice of any longer filed or within time otherwise allowed this Rule.

83 hearing. suppression in the record of the contained evidence Tolbert, (2004); 1192, 1197 539, 548, A.2d v. 850 State 381 Md. (2003); Rucker, 439, 199, 207, 443-44 v. 821 A.2d 374 Md. State (2003). State, 232, 249, 459, 469 821 A.2d White 374 Md. its court and conclu- findings suppression of the The factual accepted un- testimony are credibility of regarding the sions Tolbert, 548, at at 850 A.2d 381 Md. clearly erroneous. less bemay the inferences that the evidence and 1197. We review prevailing to the light in the most favorable reasonably drawn White, 444; Id.; Rucker, 207, 821 A.2d 374 Md. at at party. “undertake our own 249, at 469. We Md. at 821 A.2d 374 of the record review- appraisal independent constitutional case.” present it to the facts of applying the law ing White, Tolbert, 1197; 374 at 548, 850 A.2d at Md. 381 Md. at 249, 821 A.2d at 469. application in case involves the

The seminal issue this Arizona, 1612, 444, at 16 Miranda v. at 86 S.Ct. 384 U.S. that 706-07, Supreme in Court held at which L.Ed.2d be advised interrogation, an individual must custodial prior silent, he he to remain that statement right that “has him, he against and that may make used as evidence does be or either retained attorney, to the presence has and know may voluntary make a The individual appointed.” counsel, police in event the are of his which ing waiver 1612, 16 him. Id. at 444, at L.Ed.2d 86 S.Ct. question free he if the individual states that During questioning, at 707. can no further attorney, there speak wants to with an provided suspect counsel has been or questioning until Id. at police. further communication with himself initiates 444-45, 1612, 16 L.Ed.2d at 707. 86 S.Ct. at Court held that a recitation of the

The Supreme “fully equiva- effective opinion, stated warnings admissibility of incul- lent,” prerequisite to the necessary is a Id. at sought to be introduced evidence. statements patory its ruling L.Ed.2d at 725. Since S.Ct. Miranda, there no “desirable the Court has noted warnings,” and [Miranda required ] in the rigidity form that “Miranda itself indicated no talismanie incantation required its Prysock, satisfy strictures.” U.S. at 359, 101 S.Ct. 69 L.Ed.2d at 701(emphasis in original). v. Prysock,

In 355, 2806, 453 at U.S. 101 S.Ct. at California 696, 69 L.Ed.2d at the Court addressed modifications of the requisite In Prysock, the Court considered the advisements. decision the of California Court Appeals of which had held warnings the to given a were suspect inadequate under Miranda because he explicitly informed of his right to have an attorney appointed before questioning, when he was “[y]ou informed that the right lawyer have to talk to a before you questioned, are him present you have with you while are being questioned, and all during the questioning” “you and have right to lawyer have a to appointed you represent at no Id. yourself.” 356, cost to at 2808, 101 S.Ct. at 69 L.Ed.2d at reversed, 699-700. The Supreme Court holding that advisements requirements satisfied the of Miranda because he “was told of his to right lawyer present have a to prior during interrogation, and his right to have a lawyer appointed at no if cost he could not afford one. These warnings con- veyed ... right his to have a lawyer appointed if he could not prior afford during 361, one to and Id. at interrogation.” 101 2810, S.Ct. at 69 L.Ed.2d at 702. Prysock,

In analysis its the Court noted that “[o]ther courts considering precise question presented this case ... have not required a verbatim recital of the words opinion but rather have examined warnings given to determine if the reference to the right appointed to counsel was some point linked with future in time after the Id. police interrogation.” 360, at 2810, 101 at S.Ct. 69 L.Ed.2d at 701. The Court examples noted advisements, defective such as the statement that “[you can] have an attorney appointed represent to you you when first appear before the Garcia, v. Court,” U.S. Commissioner United States or the (9th Cir.1970), 431 F.2d 134 [you and “if charged ... are] Bolinski, [you] People v. would be appointed counsel.” 705, 718, Cal.App.2d Cal.Rptr. 347 (Cal.Ct.App.1968). of modifica- again impact the Court addressed Eagan, Duckworth tions to Miranda advisements 166. Consider- 106 L.Ed.2d at 109 S.Ct. U.S. bar, the Court of the case at similar those ing very facts following and written oral determine whether was asked to prior police questioning suspect to a warnings provided complied with Miranda: understand you must you questions,

“Before we ask right Anything have to remain silent. rights. You your have in court. You a say against you can be used you you any ask talk advice we lawyer for before you during questioning. with and to him questions, presence lawyer advice You have this hire no way afford to one. We have you even if cannot appointed you, but one will be you lawyer, giving if wish, If you to court. wish you go and when if present, you a lawyer now without questions answer time. You also right stop answering questions any to at the until stop answering any you’ve at time right have the to lawyer.” to a talked 2877-78, 198, 106 174 (emphasis at 109 S.Ct. at L.Ed.2d at

Id. Appeals for in the States Court of original). Although United warnings the Circuit had held that the were “constitu- Seventh counsel would tionally the statement that defective” because you go “if when to court” did not appointed adequately be and he the to indigent suspect right to an that had communicate to right and linked that interrogation counsel appointed before (7th Duckworth, 1554, event, 1557 843 F.2d Eagan a future Cir.1988), disagreed. Court Supreme the that Miranda Supreme Court iterated reversing, in exact form: provided any to warnings do not need be Miranda warn therefore need not examine “Reviewing courts terms of an defining construing as if will ings rea warnings whether the inquiry simply The easement. rights required ‘conve[y] to his sonably suspect] [a ” 2880, 106 Duckworth, 203, 109 at 492 U.S. at S.Ct. Miranda>’ 361, at 101 at 177, S.Ct. quoting Prysock, 453 U.S. L.Ed.2d at that 2810, 702. The Court concluded 69 L.Ed.2d at 86

warnings provided all of “touched the bases required by Miranda," as Duckworth told he right “that had the to silent, remain anything that he said against could be used him court, in that had speak he to right attorney before during questioning, that he had ‘this to the advice lawyer if presence even [he could] afford hire one’ and that he had the ‘right stop answering at time ” Id. until talked to a lawyer.’ [he] Regarding variance in language that a lawyer would be “if appointed and when you go court,” the Court noted that “this instruction accurately described the procedure for the appointment of counsel and that “it [that state]” must com- relatively after receiving Miranda warnings, to monplace suspect, when will obtain ask he ‘if go counsel. The and when you 204,109 court’ advice that question.” Id. at simply anticipates 2880-81, at S.Ct. 106 at (emphasis original). L.Ed.2d 177-78 The Court in Prysock, 360, also clarified its dicta 453 at U.S. 701, at S.Ct. L.Ed.2d seemingly at suggested that Miranda warnings not be would sufficient “if refer- to the right appointed ence counsel was linked [to future a] point in time after the police interrogation.” The Court explained vice referred to in Prysock was that such “the warnings apprise would not accused of his to have an attorney present if he chose to answer questions” and noted “warnings this case did not suffer from that defect,” warnings, because the taken “in their ade- totality,” quately expressed the right to have present ques- counsel at Duckworth, tioning. U.S. 109 S.Ct. at L.Ed.2d 178. Duckworth,

Since the Supreme holding Court’s a number of federal and state courts had have the opportunity explore to and apply its requisites. Generally, their holdings posit that modifications of meet of Mi- requirements advisements the randa so long the taken in their warnings, ade- totality, quately convey case, the essence of that that the had suspect right silent, to remain that anything he said could used court, against him in that had right he to an speak attorney before and during questioning, and that he had he

87 if he not afford counsel could appointed to court right had the (4th Polk, 475 F.3d 230 v. Cummings private counsel. See Cir.2007) the assertion that included (holding that advisements for appointed an required pay could be suspect that the rights under Miranda where not contravene his lawyer did for procedure of the state’s description that an accurate Caldwell, v. United States counsel); 954 the appointment Cir.1992) (8th specifically failure to (police officer’s F.2d 496 during to counsel before and right warn defendant make the Miranda inadequate warnings did not interrogation had that he advise defendant generally where officer did State, 321 v. attorney); Williams Ark. right to an (1995) that (holding that advisements that stated S.W.2d attorney answering an before right “You have consult statement, have him you may and making any questions “If cannot during you you questioning” with present by the Court one will be as determined attorney afford an equivalent no those you you” for cost to were appointed Miranda) Henson v. original); (emphasis articulated (D.C.1989) States, that United (holding A.2d 1096 an police “the warnings on the expansion officer’s standard defendants, for department attorneys not but provide does himself an suspect] opportunity would an call [the impression suspect did create the must attorney” not himself and so make the advisements attorney locate an Schwartz, Miranda); State 467 N.W.2d 240 invalid under (Iowa 1991) “You have the (holding that advisement that lawyer you any questions, ask to talk to a for advice before we you during him You have questioning. and to have with if lawyer you of a even presence this to the advice and way you one. have no giving cannot afford to hire We wish, if if for lawyer, appointed you, but one will be Miranda under as it adequate when to court” was you go appointment reflected the accurately procedure Colby, Commonwealth v. state); in that Mass. counsel (1996) from departure (holding 663 N.E.2d 808 “if he standard that stated could afford warnings attempt one attorney, provide Commonwealth would 88 Fernando-Granados, v. error);

for him” State was harmless (2004) 268 682 (holding that Miranda Neb. N.W.2d 266 warnings which Spanish when translated into “If stated that you have to money employ lawyer, don’t the court ... could one, or able or lawyer to name may one to ... represent person” informed suspect of his rights); State adequately Dailey, v. (1990) 58 Ohio St.3d 559 459 (holding N.E.2d right that advisements that “You have lawyer to talk to a for you advice before we ask any questions and have him you during with questioning” right “You have the same the advice and presence lawyer you even if cannot afford to hire one” adequately apprised suspect rights of his Strain, v. Miranda); 1989) State (Utah under 779 P.2d 221 (holding that detective’s suspect right advisement that had an attorney appointed for him by court a later “at ).6 Miranda date” was not under defective Conversely, gravamen of inadequacy of a modification was in omission of one more of the warnings required Miranda or a into a translation foreign language that modified in a way such to no longer original communicate the Street, (11th warnings. See United States v. 472 F.3d 1298 Cir.2006) oral Miranda (holding that did warnings that an include that anything advisement that the suspect said used United against could be him court inadequate); were (9th Cir.2003) (Miranda v. States. Perez-Lopez, 348 F.3d 839 warning n translated to case money “[i] don’t have enough funds, you solicit have the Court an attorney” held inadequate conveying government’s obli gation provide attorney an to a defen Spanish-speaking dant) Tillman, United added); States (emphasis F.2d (6th Cir.1992) Miranda (concluding that that did warnings not include an anything advisement that the said suspect could be used against him court were inadequate); State v. Ramirez, (1999) App.3d Ohio 732 N.E.2d 1065 (holding to translate attempts into utiliz rights Spanish Interrogations, 6. See Custodial 34 Geo. LJ. Ann. Proc. 3 Rev.Crim. (2005), post-Duckworth holdings. for additional “legal side” instead “right that meant hand ing a term said could anything suspect communicate that failed to right” attorney had a him and he against be used charge).7 free of case, not did argues only that

In the current Rush the of the advisement to Jernigan’s modification Detective read, lawyer “If and you to want counsel right appointed one, you to at some time provided one will be can’t afford Miranda, in cost,” that which was articulated stray no from mandatory the effectually failed to communicate but it also appointed that given impression Rush was the rights because future, in not the during the but present counsel could The State argues that about to commence. questioning was meant to communi phrase only addition appointed for counsel to be cate that it would take some time Rush, her provided that the advisements to represent to and right in of her writing effectively and informed her orally both questioning. present during to have counsel both before Rush, agreed Special The circuit court with while the Court with the State. Appeals agreed Rush’s

We with the State that advisements were agree Miranda. provided warnings under She was with adequate Duck- Supreme similar to those reviewed Court worth, being: given the advisements to Rush you your

“I’m to If going rights now read under law. I something you, please to you say do understand I it to explain you. right and will You have stop me up right, If you give anything remain choose to this silent. You you say against you can be used court. have questions. lawyer you’re any to a before asked right to talk have, right, right You have the have you you If being you want lawyer you questioned. with while Cir.1989), Connell, (9th v. 869 F.2d 1349 7. Rush cites to United States Noti, (9th Cir.1984), and Minnesota v. 731 F.2d 610 United States McBroom, support (Minn.Ct.App.1986) her 394 N.W.2d Supreme prior to Court’s position. Those were decided cases however, Duckworth, inapposite. are and so decision lawyer one, and can’t afford one will be provided you some time at no cost.” If at some point in time our during questioning you you decide don’t wanna anymore, talk that’s your right as Okay? well.

Rush was also provided with an Advice of Rights and Waiver read, Form initialed, which she signed. The Form stated in pertinent part:

I am now going to read you your rights under the law. If you do not understand something that I say you, please me, stop and I will explain it you.

1. You have to remain you silent. If choose to give up right, this anything that you say can be against used you in court.

2. You have to talk to a lawyer before are asked questions and to have a lawyer with you while you are being questioned. If you

3. want a lawyer, one, but cannot afford lawyer [@ "willbe provided some at time][8] no cost. 4. If you want to questions answer now without a lawyer, you still have the to stop answering questions time.

Assessing the totality of advisements, the both oral and written, we conclude that they sufficiently communicated all of the rights required by Miranda. Specifically, Rush was told that she could speak with a lawyer before being questioned and at any time during questioning. The modification of the advisements did not tie her to counsel to a future event or to her ability to herself; obtain a lawyer rather, in as Duckworth, the clarified, modified language only in a separate advisement, how and when appointed counsel would be provid- ed. Read objectively, the modified language does not suggest, as Rush argues, that appointed counsel could not present during questioning.

8. by The addition indicated the brackets was handwritten on the form. adequacy of the however, assessing contends, Rush at the circumstances look also need to we warnings the would she Specifically, made. were which the advisements behind the intention on the attention our us focus advisements, fact that the standard alteration had questioning initial after some given were advisements confused Rush would be likelihood and the occurred experi- lack of education her limited given the alteration and courts. the police ence with Seibert, 542 in Missouri opinion plurality

Rush cites (2004), support 159 L.Ed.2d 600, 124 S.Ct. U.S. provision surrounding circumstances contention that her assessing be considered must also the advisements Jernigan that Detective warnings, specifically adequacy of the the Mi- providing before questions preliminary asked her education and ninth-grade and that Rush’s advisements randa made it more justice system with the criminal unfamiliarity Seibert, In the advisements. to understand for her difficult inculpatory state- whether asked to determine the Court was whereby advise- ments, protocol to a pursuant police obtained given were not until to silence and counsel rights ments of the confession, full point which interrogation produced suspect was asked given were Miranda advisements statements, were admissible. inculpatory repeat his that “it would be stated conducting analysis, plurality its warnings] litany [of that mere recitation absurd to think circum- in every Miranda conceivable satisfy suffices it would determined “whether stance,” it must be but rather warnings in these circumstances to find that be reasonable convey requires” ‘effectively’ function could stop whether regarding had “a real choice” suspect 2610, 611-12, at 124 S.Ct. Id. at police. to the talking “question-first” held that The plurality L.Ed.2d at 654-55. midstream advise- provided which procedures interrogation Miranda, because under not sufficient rights ments of were interroga- in the aftermath only hearing warnings “[u]pon confession, suspect would a making after just tion and silent, let alone to remain genuine he had hardly think persist in believing so once police began to lead him over the same ground again.” Id. 124 S.Ct. at L.Ed.2d at 655-56. case, present Rush, relying upon the plurality’s Seibert, in

opinion argues that Detective Jernigan’s posing preliminary questions before advising her of her rights was a tactic meant to trick her into confessing, especially as it was coupled (“If with a modification of the Miranda advisement yoh want lawyer one, and can’t afford one will be provided to cost.”). you at some time at no We disagree. Rush’s inter view did not violate Miranda because her preliminary ques tioning properly was characterized Court of Special Appeals nature,” “introductory “meant to orient Rush (‘Do here?’) why know you’re and to determine whether she had first-hand familiarity with the Miranda warnings (‘You before Jernigan] gave [Detective them to her ever been ?’),” Rush, arrested before ... 280-81, State v. Md.App. 921 A.2d at and is not analogous to the part, two “question-first” tactics used by police in Seibert. The police officer in intentionally Seibert questioned suspect for 30 to 40 minutes to elicit a confession of criminal intent prior to providing the Miranda warnings, while Detective’s Jernigan’s preliminary questions only lasted a few moments only and the substantive information obtained was that Rush stated that she used to work for and live with the victims. Seibert, Unlike in the initial statements and questions posed by Detective Jernigan, even when coupled with the modified advisement, would not lead a “reasonable person [Rush’s] shoes” to conclude that she had no genuine choice whether to refuse to questioned by the police.

Rush also contends that her limited education and lack of experience with justice the criminal system are circumstances which caused her to advisements, misunderstand the based upon the hearing judge’s musings:

But I think that was an inducement. I don’t think it intentional, but I definitely, light of all of the circum- stances: a with person grade education; a 9th no prior the tape I heard from Court; what that’s with contact from CD. me to that, alone, wouldn’t be sufficient probably

And take into statement, have to you then but suppress about the to the statement getwe that when consideration Miranda; of two, a violation those that’s you couple lawyer; important, That’s law. Maryland of common a violation not her told the Detective made. When being the distinction time, left a false that at some get would one that All she had have one now. couldn’t that she impression Lay know that. lawyers I now. We say, want one do is See, an end to it. puts don’t. people determining in the voluntariness true that While it is interrogation, all elements of the we “look to a confession conducted, in the number the manner which it was including education, of the experience and present, age, officers State, 404, 429, 825 A.2d Williams v. defendant,” 375 Md. (2003), sufficiency 1078, 1092 question is not true of the in of Miranda custody a warnings. suspect Whether high drop-out, repeat Ph.D. or a school young, mature or justice system or an indi familiar with the criminal offender fact vary clean record does not previously vidual with sufficient warnings given. must be Jernigan by Detective Analyzing provided the advisements Supreme Court the standard articulated under Duckworth, Special holding we affirm the Court that Rush was ruling court erred Appeals that the circuit Mi in accordance with sufficiently rights advised of her her randa suppress inculpatory granting motion ground.9 on that statements Issue

B. Involuntariness The docket “cross-appeal.” noted what she termed a Rush Granted,” entries, however, that Rush’s “Motion [was] reflect Jernigan’s modification of the we that Detective 9. While concluded Miranda, discourage we would advisements did not violate standard form, potential to modifications have the deviation from the standard inadequate. render such advisements indicating that the judge granted Rush’s Motion to Suppress in its entirety; additionally, the from ruling the bench is ambiguous:

The Court is required to consider the the circum- totality of stances, I my ruling, am considering that. Court docket, reviewed the Court’s own or its own file which has in it the For Application Statement of That’s Charges. information that George’s the Prince County Police had when they got original warrant for murder. bullshit, And so when the Detective told her that was that’s exactly had; what he believed based on the information he was, fact, telling that she him a story that didn’t even come close to what they already; why. had he told her that, in doing Court finds that he left within her mind the impression way that the she only helped could be would be truth; to tell the ultimately, she did.

But I think that was an inducement. I don’t think it was intentional, I definitely, light but of all of the circum- education; person grade stances: a with a 9th prior no Court; contact with the that’s what I heard tape from the from the CD. that, alone,

And probably wouldn’t be sufficient for me to statement, suppress the but then you have to take into consideration that when we get to statement about the Miranda; two, lawyer; you those couple that’s a violation of Maryland not a violation of common law. That’s important, the distinction being made. When the Detective told her you time, that get would one at some left a false impression she couldn’t have one now. All she had to say, lawyers do is I want one now. We know Lay that. See, people puts don’t. an end to it. consideration, So when take that into along with the truth, well, only thing help that could her is to tell the it might helped eyes her in the of the All if Mighty, she believed, soul, so might help morally or it her in her but had, way based on information the Detective there was no her, reason to know every and he had going help that was that.... for the reasons stated— Suppress,

The Motion to I understand that was a violation of Miranda. of common law.

Not a violation rul one cannot from a favorable Although appeal Administrator, Vogt, see Motor Vehicle Administration v. ing, (1973) 660, 664, (“[GJenerally, party 267 Md. 299 A.2d appeal judgment cannot from a or order which is favorable to State, him, thereby aggrieved.”); Thompson since he is not 240, 248-49, (2006), 395 Md. 909 A.2d 1040-41 the Court Special proceeded and the on the basis that Appeals parties entirely favorably the trial court did not rule on the Rush issue of voluntariness. Rush to asks us consider her com plaint the on regarding ruling voluntariness tandem with statement, the a appeal voluntary State’s because albeit one dictates, not satisfying may the Miranda be used for impeach State, 654, 661, purposes, ment see Brittingham 306 Md. 511 A.2d 48. The State asks this Court to determine Special “jurisdiction whether the Court of had Appeals cross-appeal” consider Rush’s on the ground alternative of involuntariness. determining jurisdiction whether it had to entertain a

defendant’s cross-appeal, Special Appeals Court of first 12-303(c)(3) plain language examined the of Section of the Article, Proceedings legislative Courts and Judicial history statute, of the and this Court’s au- jurisprudence construing thority interlocutory to hear that: appeals noted seem, Maryland precedent

What little direct there is would therefore, to militate in favor of the most interpreta- narrow tion of the State’s a appeal suppress decision to including challenge by evidence as not the defendant to the court’s ruling ground. unfavorable on an alternative Rush, State v. 921 A.2d 334 at 351. The Md.App. however, analysis, did not end its but Special Appeals Court of guide general principles chose also to consider “the ... in the context of developed review scope appellate id., construing final and found cases appeals judgments,” from system and the federal analogous provid statutes Illinois defendant’s jurisdiction courts with consider ing appellate appellate the intermediate suppression arguments; alternative court reasoned that reviewing may uphold that a court principle

the general adequately court on judgment ground lower final Maryland. well-established in The shown the record is of immediate for legislature appeal created opportunities equalize State at issue here order correction of meaningful to criminal cases have parties evidentiary made on constitution- pretrial rulings, erroneous is most legislative goal equalization al grounds____The when the efficiently accomplished general thoroughly is in the State’s principle applied review scope appellate appeal as it is in the defendant’s from appeal immediate judgement. final

Id. at 353. 921 A.2d that it was error for the intermediate The State contends as Sec- cross-appeal court to consider a defendant’s appellate 12—302(c)(3) Proceedings and Judicial Arti- tion of the Courts The State also cross-appeals. cle makes no reference intermediate court’s reliance on appellate contends that the support its assertion jurisprudence federal and Illinois cross-appeal to consider a defendant’s jurisdiction it has differences between misplaced significant because 12-302(c)(3) its and Section federal and Illinois statutes history. legislative

Rush, appellate the intermediate conversely, argues jurisdiction cross-appeal to consider a under court did have 8-202(e), party which mandates that one Maryland “[i]f Rule may other file timely appeal, party files a notice of contends that days.” within ten Rush also appeal notice of

97 if appellate time and resources would be wasted judicial cross-appeal court were unable to hear the at the same time granted. is appeal State’s In analyzing appellate jurisdic whether an court has cross-appeal positing grounds tion to consider a alternative grant suppress, of a motion to the Court of Special appropriately began inquiry by noting its Appeals “[i]n Maryland, ‘[a]ppellate jurisdiction by “constitu established rules; provisions, statutory jurisdiction tional provisions, ’ ” v. State by cannot be conferred consent of the parties.” Rush, 283, 347, Md.App. 174 at 921 A.2d quoting Shofer Co., Stuart Hack 585, 596, 201, 107 Md.App. 669 A.2d 206 Ins., v. Maryland Deposit (1996), Pearlstein quoting in turn 41, 48, (1989). 528, 79 555 Md.App. A.2d 532 The question 12-302(c)(3) then becomes whether Section of the Court and Article, statute, rule, Judicial or Proceedings any other provision, grants jurisdiction constitutional to entertain a de interlocutory fendant’s when cross-appeal ap the State has pealed grant of a motion to suppress.

It is well established that cardinal rule of “[t]he statutory construction is to ascertain and effectuate the intent State, Stoddard v. 653, of the Legislature.” 661, 395 Md. 911 State, 1245, Chow v. (2006); A.2d 431, 443, 1249 393 Md. 903 State, 388, Collins v. (2006); 684, A.2d 395 688, 383 Md. 861 (2004). 727, A.2d begin analysis We our looking first normal, plain meaning of the language of the statute so word, clause, that “no sentence or phrase superflu is rendered Chow, 443, 395; ous or nugatory.” 393 Md. at 903 A.2d at Collins, 688-91, Further, 383 Md. at 861 A.2d at 730-32. whenever possible, interpretation should given to the statutory provisions which does not lead to unreasonable or State, Stoddard v. illogical consequences. 653, 663, 395 Md. State, Blake v. 1245, (2006); 213, 224, A.2d 395 Md. (2006). 909 A.2d If language of the statute is unambiguous, clear and we beyond need not look the statute’s Stoddard, provisions analysis and our ends. 395 Md. at Chow, 1249-50; 911 A.2d 395; 393 Md. at 903 A.2d at 98 however, 689, If,

Collins, A.2d at 730. 383 Md. at 861 it is interpretation, to more than one subject language to the ambiguity by looking that and we resolve ambiguous, law, statutory purpose. case history, statute’s legislative 662-63, 1250; Blake, Stoddard, at 395 at 911 A.2d 395 Md. Chow, 444, 1026; A.2d 224, 393 Md. at 903 at 909 A.2d at Md. Collins, 691-92, 395; 861 A.2d at 732. 383 Md. at at narrowly any grant construed we have

Additionally, Green, 61, 78, Md. 785 In State v. 367 authority. of appellate (2001), decision 1275, we overruled our earlier 1285 A.2d State, 381, (1994), in which 644 A.2d 11 335 Md. Cardinell v. to right had a common law that the State we determined of 12- language and that the Section in criminal cases appeal 302(c) not Proceeding Article did the Courts and Judicial Green, we over right. specifically that clearly supersede enjoy not that the State does holding by emphasizing ruled criminal sentence allegedly an right appeal a common law criminal appeal law right the extent common as “to existed, that abrogated right the Legislature ever sentences 12-302(c).” 76, 785 A.2d at § 367 Md. when it enacted dissent reasoning finding, adopted In so we 1283. there is “today, Eldridge Cardinell Judge John C. 1281, 72, Id. at 785 A.2d right appeal.” law no common 398-401, Cardinell, (Judge 644 A.2d at 19-21 335 Md. at citing dissenting). Eldridge, in post- appeal construed the strictly

We County Anne Arundel Ethics Dvorak v. cases. See Cardinell (2007) Commission, 446, (holding 929 A.2d 185 400 Md. a right law conferred County Anne Arundel neither State nor from the order of Special Appeals to the Court appeal Arundel of the Anne affirming the decision circuit court State, Commission); v. 397 Md. 918 Fuller County Ethics (2007) petition of an inmate’s that the denial (holding A.2d 453 under Section program treatment drug committed to to be Nnoli appealable); Article is not of the Health-General 8-507 (2005) (holding 884 A.2d v. 389 Md. Nnoli appeal- was not an arrest warrant quash denial of a motion specific statutory authority granting able as there State, appeal); Lopez-Sanchez such Md. (2005) A.2d 695 that victim of a (holding juvenile’s delinquent appeal act had no the terms of a consent order for prosecution); restitution as a victim is not a to a criminal party (2005) W., 675, In re 386 Md. 874 A.2d Billy (holding 423 a trial court order from a periodic permanency plan review hearing it appealable was as was not final order nor appealable by made Section 12-303 of the Court and Judicial Manck, statute); Proceedings Article or other v. State 385 (2005) 581, (holding Md. 870 A.2d 196 State does not statutory right have a appeal striking trial court’s of of intention penalty notice to seek the death and that this Court could not issue a prerogatory permit appellate writ (2003) review); Saar, 385, v. 376 Mateen Md. 829 A.2d 1007 (holding that the State does not have right appeal 12-302(c)(2) sentence under Section of the Courts and Judicial Proceedings Article when a specific sentence is not mandated statute); by 243, Pack Inc. Howard County, Shack v. 371 Md. (2002) (holding 808 A.2d 795 that Howard had no County appeal denying an order a civil contempt petition under Section 12-304 of the Proceedings Courts and Judicial Article County person adjudged because the was not a in contempt); (2000) State, Derry 358 Md. 748 A.2d 478 (dismissing appeal the State’s from an order to suppress evidence for a violation of the Maryland Wiretapping and Electronic Surveil statute). satisfy lance Act because it did not of the terms Baltimore, Mayor City See also Murrell v. & Council 376 (2003) Md. 829 A.2d (holding 548 that a circuit court’s common law mandamus action appealable gen under the appeals eral statute as an from such an appeal action was not 12-302(a) precluded by Section of the Courts and Judicial Griswold, Article); Proceedings State v. Md. A.2d (2003) (holding State had a to appeal under 12-302(c)(2) Proceedings Courts and Judicial Article imposed when a circuit court a sentence specifically prohibited statute). by jurisdiction provided grant appellate

A general and Judicial of the Courts 12-30110 and 12-30811 Sections “reviewable” review of “final” and Article for the Proceedings Pro and Judicial 12-302 of the Courts Section judgments. to the exceptions number of a limited ceedings permits Article 12-302(c)(3) which rule, which is Section one of judgment final of a grant from appeal the State to allows specifically various conditions: motion under suppression defined in (3)(i) of violence as involving a crime In a case Article, under cases Law § 14-101 of the Criminal through §§ 5-612 5-614 5-609 and through §§ 5-602 a decision Article, may from appeal the State Law Criminal State evidence offered court that excludes of a trial been alleged to have property return of requires States, of the United of the Constitution seized violation Constitution, Declaration Maryland or the Maryland Rights.

(ii) attaches to jeopardy made before The shall be appeal However, in the shall be appeal all cases defendant. the has been days after the decision than taken no more diligently prosecuted. rendered and shall to the (iii) certify State shall appeal, the the taking Before delay and taken for of purposes is not appeal court that the Proceedings Mary- Article and Judicial 12-301 of the Courts 10. Section (1974, Repl.Vol.) states: land Code subtitle, appeal party may § Except provided in 12-302 of this as by a circuit judgment in a civil or criminal case entered from a final by a appeal judgment entered right exists from a final The of court. limited, statutory jurisdic- special, original, of court in the exercise tion, expressly right appeal denied particular case in a the unless case, though may appeal even a criminal the defendant law. In suspended. a civil imposition sentence has been or execution of case, may cross-appeal from accepted plaintiff has a remittitur who judgment. final the Proceedings Mary- Article and Judicial 12-308 of the Courts 11. Section (1974, Repl.Vol.) states: land Code subtitle, Special Court of § this Except provided in 12-307 of any jurisdiction reviewa- appellate over Appeals initial has exclusive court, decree, and an action of a circuit judgment, order or other ble orphans' court. required to be property excluded or the that the evidence in the a material fact proof returned is substantial the decision The shall be heard and proceeding. appeal the record on days within 120 of the time that rendered Otherwise, the deci- appellate filed in the court. appeal is final. sion of the trial court shall be (iv) case, appeals if the State on the Except a homicide if on final the decision of paragraph, appeal basis of this affirmed, the defendant charges against trial court is appeal in the case from which the shall be dismissed case, may prosecute In that taken. State on other related specific charges on those defendant arising out of the same incident. charges 12—302(c)(3) jurisdiction to appellate does not confer Section Rather, clearly cross-appeal. hear a defendant’s statute interlocutory order to the right appeal limits the to from State; judgment. from the final appeal the defendant is free to right links the expressly appeal The statute also State’s defendants, such as inapplicable “[t]he certain restrictions “the jeopardy shall be made before attaches” and State appeal to the court that is not taken for certify appeal shall purposes delay.” given specific right the defendant has been

Where appeal judgments, in addition to the from final appeal right. For Legislature specific protecting has been Proceed- example, Section 12-401 the Courts Judicial Article, addressing appeal a decision of the ings cases, specifies in criminal that: District Court (b) a criminal case: Criminal cases.—In (1) in may appeal judgment The State from a final entered the District Court:

(i) judge impose If trial failed to alleges tlie State that the Code; by or specifically the sentence mandated (ii) dismiss, dismissing or Granting quashing a motion or charging a document.

102

(2) judgment from a final may appeal even The defendant or execution though imposition in the District entered Court suspended. of sentence has been added).12 12-401, specifically which Unlike Section (emphasis language or the of may appeal,” defendant “[t]he states that in of the Courts and Section 12-303 party may appeal,” “a Article,13 may “[a]ny person appeal,” or Proceedings Judicial Proceedings of the Courts and Judicial in Section 12-304 12-302(c) Article,14 only of the State. speaks Section contention, of Further, Section 12-301 contrary to Rush’s Maryland Article and Proceedings and Judicial the Courts 8-202(e) held any ambiguity. not create We have Rule do in of 12-302 are when Section previously provisions jurisdiction provid- general grant appellate with the conflict 12-301, 12-302 specific provi- the more Section by ed Section City Supervi- v. Ocean Board sions will control. Gisriel 477, 496, (1997), Elections, 345 Md. 693 A.2d sors of 12- was not authorized under Section appeal we held that an specific provision it the more superseded 301 because was 12-302(a) Proceedings of the Courts and Judicial of Section “[ujnless is ex- Article, appeal which states law, permit appeal § 12-301 does not granted by pressly Proceedings of the Courts and Judicial 12. See also Section 12-301 Article, (1974, pertinent part: Repl.VoL), stating Maryland Code case, may though imposition appeal even criminal the defendant In a suspended. been execution of sentence has Article, Proceedings of the Courts and Judicial 13. Section 12-303 (1974, Repl.VoL), pertinent part: Maryland states in Code any following interlocutory orders may appeal party A from by a circuit court in a civil case.... entered added). (emphasis Article, 12-304(a) Proceedings of the Courts and Judicial 14. Section (1974, Repl.VoL), Maryland states: Code (a) review.—Any person may appeal from order or Scope of dignity power judgment passed preserve the or vindicate the court, including adjudging contempt an interloc- him in court and order, nature, contempt, adjudging any person utory remedial party to the action. whether or not added). (emphasis

103 in the or made of a court entered judgment from a final of reviewing the decision jurisdiction of appellate exercise Court, legisla- local agency, administrative the District an body.” tive 8-202(e) party one which states

Maryland “[i]f Rule file a any party may other timely appeal, notice of files days ten the date on which appeal of within after notice longer was or within time notice filed appeal first Rule,” with Section allowed this can also be read by otherwise 12-302(c) ambiguity, conflict or engendering any without refers for a notice specifically filing Rule 8-202 to times jurisdiction. and does not or limit appeal grant she “cross-appeal,” Rush could not file Although issue in the State’s entitled to raise the voluntariness was ruling on an suppression order to defend the appeal, hearing ruled on ground by by raised Rush and alternative State, 498, 501-04, 403 A.2d See Robeson v. 285 Md. judge. (1979). 1221, Special The Court of Appeals 1223-24 final may “a court noting reviewing uphold correct adequately by on shown judgment any ground of a lower court 353; record”; Rush, 293, 921 A.2d at Md.App. adequate which although disagree upon we record of voluntariness. Fred appellate to base determination Pickett, (2006), 411, 433-34, 228, A.2d erick v. 392 Md. jurisdiction lack of in rem and bad we declined consider dismiss grounds affirming as other the circuit court’s faith grounds were not action because those al of a condemnation in the We concluded that adequately developed record. Court, with con although argument presented the Circuit faith, did cerning specifically in rem and bad not jurisdiction Therefore, is a because there address contentions. regarding factual in the necessary dearth of detail record contentions, we will affirm Circuit Court’s these on grounds. decision those State, 434, Mosley 241. 378 Md.

Id. at 897 A.2d at See also (2003) 562-65, that, in (iterating 836 A.2d 684-88 context, claims ineffective assistance counsel post-conviction are best reviewed a trial court rather an appellate than Institution, court); Myers v. Director the Patuxent 233 Md. (1963) (in 621, 622, 195 A.2d 716-17 post-conviction con- text, remanding case to when hearing judge adequate findings upon of fact which court appellate could base its decision were absent).

The Special Court of concluded that Appeals adequate record was for it to rule on the issue involuntari ness, in directly opposite court, a decision to that of the trial based its review upon transcript of the of Detective Jernigan’s interview of Rush and that her inculpatory reflected state Rush, ments were obtained through inducements. 174 Md. 301-13, App. A.2d at 358-65. We decline to follow the path same because inferences drawn viewing from the inter DVD, view through observation of the inflictions and demean- or exhibited both Rush and Jernigan, may Detective differ from those inferences that can be drawn from the bare We are left with a transcript. adequate record that is not base decision.15 THE

JUDGMENT OF COURT OF SPECIAL APPEALS AFFIRMED MIRANDA AS TO ISSUE AND REVERSED ISSUE; TOAS VOLUNTARINESS CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO DISMISS RUSH, APPEAL OF PETITIONER REVERSE SUP- ORDER THE PRESSION OF CIRCUIT COURT FOR COUNTY, PRINCE GEORGE’S AND REMAND THAT TO PROCEEDINGS; COURT FOR FURTHER COSTS IN THE COURT OF SPECIAL APPEALS AND THIS COURT BE PAID BY TO PETITIONER.

RAKER, J., concurs and dissents.

BELL, C.J., GREENE, J, dissent. judge 15. It would be advisable for a trial in a similar situation to rule specifically ground presented suppress. on each in a motion to J., dissenting: RAKER, concurring and affirming opinion II. Court I in Part A. of the join Court that the Circuit Appeals the Court holding Special of her sufficiently advised was not ruling Rush erred Miranda, the mo- granting and in in accordance with rights ground. on that her statements suppress inculpatory tion constitutionally words, warnings were In other Miranda adequate. on involuntariness ruling majority’s

I dissent from appeal that Rush cannot I with the State agree issue. were her portions statement finding Court’s Circuit interlocutory, because there The voluntary. ruling was order, her claim such an appeal no statute exists and not judgment, from a final appeal raised may be appeal. within the State’s GREENE,

BELL, C.J., joins. in which J. dissenting, 1602, 16 Arizona, 436, 86 S.Ct. 384 U.S. (1966), States Court the United Supreme of L.Ed.2d from admissibility “the of statements obtained considered interrogation police to custodial subjected individual who the individ- necessity for which accure that procedures and the to his under the Fifth Amendment privilege ual is accorded himself,” to compelled not incriminate the Constitution to be give “to process seeking 86 S.Ct. id. at at agen- for law enforcement guidelines constitutional concrete 1611. S.Ct. at to Id. and courts follow.” cies guidelines it intended constitutional Addressing concrete it held: provide, statements, exculpa- whether not use prosecution may “the interrogation stemming from custodial inculpatory, tory procedur- use of it demonstrates the of the defendant unless self- against the privilege to secure safeguards effective al ques- we mean By interrogation, custodial incrimination. person after a enforcement officers tioning bylaw initiated his custody deprived or otherwise taken into has been As for significant way.... any of action in freedom procedural safeguards employed, be fully unless other effective means are devised to inform persons accused their right of silence and to assure a opportunity continuous it, following exercise measures are required. Prior to any questioning, person must be warned that he has a silent, right to remain that any statement he may does make be him, used as evidence against and that he has a the presence of an either attorney, retained or appointed. The defendant waive may effectuation of rights, these pro- vided the waiver is made voluntarily, knowingly and intel- If, however, ligently. he in any indicates manner and at any stage process that he wishes to consult with an attorney before speaking there can be no questioning. Likewise, if the individual is alone and indicates in manner that he does not wish to be interrogated, the police may question him. The mere fact that may he answered some questions or volunteered some statements on his own deprive does not him of to refrain from answering any inquiries further until he has consulted with an attorney and thereafter consents questioned.” 444-445, added).. Id. 86 S.Ct. at 1612 (emphasis These guidelines necessary were because the Court

“concluded that without proper safeguards the process of in- custody interrogation persons suspected or accused of crime contains inherently compelling pressures which work to undermine the "will individual’s to resist and to compel him speak where he would not otherwise freely. do so order to combat these pressures and to full permit a oppor- tunity to exercise the privilege against self-incrimination, the accused must be adequately and effectively apprised rights his and the exercise of those rights must be fully honored.”

Id. at S.Ct. 1624. Having rights identified the of which a custodial defendant must be the apprised, explained Court the underly- rationale ing each: to outset, subjected if in to be custody the is person

“At un- in clear and he first informed interrogation, must be For to remain silent. terms he has the equivocal that needed warning of the is privilege, the those unaware requirement to make them aware of it-the threshold simply impor- as to its exercise. More intelligent an decision in overcom- tant, prerequisite an warning such a is absolute atmosphere. of pressures interrogation the inherent the ing who woefully ignorant just is not the subnormal or It implied whether interrogator’s imprecations, an succumb to stated, until interrogation will continue that the expressly or in of or the face is obtained that silence a confession ill when damning presented and will bode accusation is itself the warning the will show individual jury____Further, to a interrogators prepared recognize privi- his are his that it. should he choose to exercise lege our is so fundamental to privilege “The Amendment Fifth rule the of expedient giving of constitutional and system so availability privilege of the warning as to adequate cases simple, pause inquire we will not individual rights of his without a whether the defendant aware warning being given. knowledge Assessments of the age, his possessed, defendant based on information authorities, can education, intelligence, prior contact with clear warning than ... is a speculation; never be more background whatever the of important, cut fact. More interroga- warning at the time of person interrogated, a to insure pressures is overcome its and indispensable tion he privilege knows is free exercise the that individual time. point must accom- warning of remain silent “The can will be explanation anything said panied need- against warning in court. This used individual only privilege, but to make him aware not ed order through only It is consequences forgoing it. also there can be consequences an awareness these intelligent understanding of real exercise assurance 108 Moreover, privilege. this warning may serve to make

the individual more acutely aware that he is faced with a phase of the adversary system-that he is not in the presence of persons acting solely in his interest.

“The circumstances surrounding in-custody interrogation operate can very quickly to overbear the will of one merely made aware of privilege by his his interrogators. There- fore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege system under the we delineate today. Our aim is to assure that individual’s to choose between silence and speech remains unfettered throughout the inter- rogation process. A once-stated warning, by delivered those who will conduct the interrogation, cannot itself suf- fice to that among end those who most require knowledge of their rights. A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of remain silent without more ‘will benefit only the recidivist and the professional.’ Brief the National District Attor- neys Association curiae, as amicus p. 14. Even preliminary advice given to the by accused his own attorney can be swiftly overcome by the secret interrogation process. Cf. Illinois, Escobedo v. State 478, 485, U.S. n. 84 S.Ct. 1758, 1762[, (1964) Thus, L.Ed.2d 977 ]. the need for counsel to protect the Fifth Amendment privilege compre- hends not merely a right to consult with counsel prior to questioning, but also to have present counsel during any if questioning the defendant so desires.

“The presence of counsel at the interrogation may serve significant several subsidiary functions as well. If the ac- cused decides to talk to his interrogators, the assistance counsel can mitigate the dangers of untrustworthiness. With a lawyer present the likelihood that police will practice reduced, coercion is and if coercion is nevertheless exercised the lawyer testify can to it in court. The presence lawyer can also help guarantee the accused gives fully accurate statement to the police and that the at trial. prosecution rightly reported statement 443-448, U.S. California, 357 v. State See Crooker (1958) J., 1293-1296, (Douglas, 2 L.Ed.2d 1448 S.Ct. dissenting).” But, 467-70, 1624-26.

Miranda, 86 S.Ct. at 384 U.S. generally to counsel concluded, right of the the advice Court afford counsel must suffice, ability to the defendant’s does not explained: be It considered. of the person interrogated a fully apprise to

“In order ..., only warn him not necessary to his it is rights extent of but attorney, also right to consult with that he has the represent to appointed a will be indigent lawyer if he is of the warning, the admonition this additional him. Without as would often understood to consult with counsel right lawyer if he has one only he can consult with a meaning right a warning one. The or has the funds to obtain in if not terms that would would be hollow couched counsel subjected most often indigent-the person to the convey has a knowledge right that he too interrogation-the As of the to remain present. warning right counsel with the counsel, by effective general right only and of the silent right to the of this can express explanation indigent and truly he was position there be assurance that exercise it.” omitted). (footnotes 473,

Id. at 1628 S.Ct. of, indeed, for, require- necessity the the importance The informed of his her explicitly ment that defendant be during question- both before and present to have counsel when by the made manifest it ing was underscored Court and of circumstantial evidence that admonished that amount “[n]o have been aware of this will suffice to person may Only through warning is there stand its stead. such of this that the accused aware ascertainable assurance 471-72, regard right.” Similarly, Id. at at 1626. with S.Ct. defendant, unequivo- clear indigent the Court was cal: ability

“[t]he financial of the individual has no relationship to scope rights involved here. The privilege against self-incrimination applies secured Constitution to all individuals. The need counsel in protect order to privilege exists for the indigent, well as the affluent. fact, we were to limit rights these constitutional to those who can retain an our attorney, decisions would today be of significance.” little

Id. 86 S.Ct. at 1626-27. today that Miranda warnings given majority

The holds satisfies petitioner this case requirements State, before reviewed.1 Rush v. here in 89-90, 403 Md. (2007). not, cannot, 939 A.2d I do agree. relevant, interrogation 1. proceeded: As Well, right. get "DETECTIVE JERNIGAN: All let’s the formalities way. out of the Okay. "RUSH: anything anything "DETECTIVE JERNIGAN: Need to drink or or— okay. "RUSH: No. I’m Okay. "DETECTIVE JERNIGAN: wonderin’, Actually, why "RUSH: I was I don’t know I’m even here. detective, me, police up my The at showed door and arrested said I had a warrant. Cindi, Okay. get ya "DETECTIVE JERNIGAN: how far'd in school? grade. "RUSH: Ninth you "DETECTIVE JERNIGAN: Do know how to read? Yeah, just I’ve "RUSH: taken GED classes and I haven’t been able to go very (unintelligible). my test. take the I'm I have CNA license everything. Okay. right. JERNIGAN: All prove "DETECTIVE Just to to me that you to know how read— "RUSH: Mm-hmm. going you portion "DETECTIVE to a JERNIGAN:—I’m let read of me, okay? this statement Okay. "RUSH: you up? "DETECTIVE JERNIGAN: move Can that chair on Read this first sentence— "RUSH: Mm-hmm. top "DETECTIVE JERNIGAN:—on the line for me. going you your rights “RUSH: 'I am now to to read under the law.' good. Very right. gonna "DETECTIVE JERNIGAN: All I’m read you go together, the out okay? rest to loud and then we'll over it Okay. "RUSH: going you your rights "DETECTIVE JERNIGAN: now 'I'm to read you say you, under the If something law. do not understand I to please stop explain you. right me and I it to will You have the to

Ill of and Waiver Rights read the Advice being than Rather were modified warnings that Form, given was the petitioner modified, warnings the detective. As interrogating the by and could lawyer a petitioner if the wanted given advised that no her at one, provided be hire counsel would afford to the added cost, phrase time.” The latter “at some in addition, informing petitioner than the rather detective. Form, which acknowl of last sentence with the accordance with question elect to right proceed to edged petitioner’s counsel, the sentence the detective amended without ing By right of election.2 any petitioner’s to the omit reference key a modifications, majority undermines blessing these Miranda, a Fifth protect defendant’s jealously purpose custody suspect clear to a rights by making Amendment if afford a and that he cannot lawyer he is entitled to “that any interroga prior one, will for him lawyer provided Miranda, 1628 (emphasis 86 S.Ct. at tion.” 384 U.S. at added). To from clear. The advisements in this case are far give right, anything you you up remain silent. If choose to this say you right against can court. You have the to talk be used you, lawyer you’re any questions. right, before asked You have being right lawyer you questioned. you to have a with while one, lawyer you you provided to want a and can’t afford one will be If during point time some time at no cost. at some our If your you you anymore, questioning don't wanna talk that’s decide right Okay? as well.' later, Form, Rights signed an and Waiver A short time Rush Advice similar, which, though from the Detective's oral contents of differed point significant in time ways. of 'If at some advisements in Instead anymore, during questioning you you our decide don't wanna talk that's well,’ you your Form reads ‘If want the last sentence lawyer, stop questions still have answer now without Form, typed, includ- answering questions The which was time.’ phrase time[.]” some a handwritten insertion ed you questions without “If want to answer now That sentence read: 2. answering questions lawyer, you stop to at still have the detective, petitioner, “[i]f it at phrased the informed the time.” As you during point questioning decide don’t wanna in time our some well,” assuming anymore, your right that the in effect talk that’s proceed. questioning without counsel would contrary, message is, best, the the they convey that at ambigu and, worst, ous confusing. is This the particularly case when it is considered that the “at some time” qualifier applies only counsel; not, to appointed it does majority and the does does, not suggest that it apply to hired counsel. The message is also ambiguous respect with to appointed whether counsel can be present during questioning. explicit While there is no counsel, too, statement that appointed must be present and during questioning, there is a suggestion opposite the is assumed, the the case: advisements and to conveyed petitioner, the expectation occur, that questioning would sub later, ject to termination when it did not recognize what must be if the obvious Miranda spirit meaning are to be that for respected, proceed, the questioning petitioner must have waived presence. counsel’s And that waiver, requires “voluntarily, b e knowingly and made, intelligently” an impossibility unless the options are clear and unambiguous. regard, inclusion of the words, time,” “at some even if explain system or protocol for the appointment of counsel for indigents, signif icant. That may, to, reference likely indeed is lead an indigent believe, so, defendant and not unreasonably that he or she is not entitled an appointed attorney during the but, impending instead, questioning, counsel appointed will be for him her only or “at some time” the future. These had ambiguities so muddied the given, advisements no waiver taken, given, or under these circumstances ever could knowing, intelligent, voluntary.

Acknowledging goal of its review of the advise- ments is to given determine whether the petitioner’s rights under Miranda were adequately preserved, the majority pur- ports to have totality advisements, “[a]ssess[ed] Rush, both written,” oral and that purpose. atMd. fact, 939 A.2d at 702. In lawyerlike fashion,” “[i]n majori- advisements, ty “parses” the looking for interpretation that plausibly could be consistent with Miranda. Duckworth v. Eagan, 195, 216, 2875, 2887, 492 U.S. 109 S.Ct. 106 L.Ed.2d (1989) (Marshall, J., dissenting). Having noted that “Rush

113 lawyer being before with a speak she could was told that and conclud questioning[,]” time during and at questioned tie did not her “modification of the advisements ing that the ability or to her to obtain to a future event right to counsel Duckworth, rather, in the modified lan herself; as lawyer advisement, how when clarified, in a and only separate guage Rush, 90, at provided,” Md. counsel would be appointed that, 702, as in Duck satisfied majority the is 939 A.2d at worth, required all of the bases “touched advisements 2880, Miranda,” “reasonably at and at S.Ct. 492 U.S. rights required by as Mi conve[yed] petitioner her] to [the 355, 361, Prysock, 453 U.S. (quoting Id. randa.” California (1981)). 2806, 2810, It thus an 69 L.Ed.2d 696 101 S.Ct. ... suggest not that language that “the modified does nounces during questioning.” not be appointed present counsel could Rush, at A.2d 702. 403 Md. course, majority right, interpretation

The is its is a one were plausible requirements advisements all and, thus, all It be mentioned the bases were touched. cannot that, told disputed superficially technically, and Rush was she during The speak lawyer questioning. could with before and with the majority’s analysis question trouble is that it wrong question answers is the one. It is not the whether all of interpreta- requirements were mentioned whether one another; rather, tion preferred question is be over is sufficiently unambigu- whether was clear and given the advice defendant, voluntarily, knowingly, and ous to enable the her is rights. important to waive Miranda It intelligently, in toto and context. consider the advisements both that, significant immediately being it after told of regard, during and questioning, to have counsel before lawyer, afford a told that if she could not she petitioner time,” prior be one “at some appointed would have, petitioner The could questioning. commencement did, time” probably glean qualification from “at some would entitled only private attorney those able afford a during accordingly, counsel those questioning, seek unable to- an attorney afford would to wait until later Duckworth, time. See period 216-17, 492 U.S. at 109 S.Ct. Marshall, J., in which dissenting, observed, in lan- remarkably the case sub judice: guage applicable goes wholly “What majority’s] [the overlooked analysis is the recipients of police warnings are often frightened suspects law, unlettered in the not lawyers or judges or others in legal schooled interpreting or semantic nuance. Such can suspects hardly be expected interpret, in as facile a manner as majority], pretzel-like [the warnings here-intertwining, contradictory, ambiguous and they are.” Johnson, v. Commonwealth

(quoting 484 Pa. 399 A.2d (1979).) 111, 115 important, Just as the petitioner was told of right her to terminate it questioning begun, once was but commencement questioning of without counsel had to be with her consent in proceed that fashion. that, subject- mandates before an may accused be

ed to interrogation, custodial he or she be must “adequately and effectively apprised his rights against [or her] self- incrimination,” U.S. at 86 S.Ct. at in- which being cludes explicitly informed of his or her right to have present counsel both Id. at during before and questioning. 473, 86 S.Ct. warnings at 1628. The in pass this case do not If muster. amount circumstantial “[n]o evidence that person may right counsel, have been aware of this appoint- [to ed, if and appropriate, during before questioning] custodial stead,” will suffice to stand its it follows that no amount of parsing to a plausible find interpretation ambiguous Id. advisement will save that 471-72, advisement. 86 S.Ct. at 1626. When the ambiguous, advisement there can be no voluntary, knowing, intelligent and Only waiver. an explicit, clear warning provides the “ascertainable assurance that Id. 471-72, accused was right.” aware this 86 S.Ct at 1626. What the Court years ago Supreme forty iterated over bears repeating remembering: warning of

“[t]he counsel would be hollow if not convey couched terms that would indigent—the to the

H5 knowledge interrogation-the subjected to often most person present----[0]nly counsel has he too indigent of this express explanation effective in a truly position that he was there assurance right can it.” to exercise

Miranda, 1602, 1627, 16 L.Ed.2d 436, 473, 86 S.Ct. 384 U.S. added). (emphasis the views joins expressed Greene Judge

I dissent. herein. A.2d 716

Joseph COLBURN, et al. SAFETY DEPARTMENT OF PUBLIC & CORRECTIONAL SERVICES. 41, Sept. Term, 2007.

No. Maryland. Appeals Court Jan. 2008. notes when the State dant 12—302(c)(3)of Section under suppress of a motion grant Article.1 Proceedings and Judicial the Courts of below, Petition for Writ filed a Rush, the defendant our review: following question Certiorari, raising the the reversing err Appeals Special of Did the Court detective’s interrogating that an trial Court findings of the she warnings suggest of the modification improperly time” “at some counsel appointed would be appointed counsel could not have the defendant implied that during interrogation? her of for Writ filed a Conditional Cross-Petition The State questions: Certiorari, us with two additional presenting jurisdiction lack Special Appeals Court of 1. Did the noted an where the State cross-appeal Rush’s consider suppress a motion to grant from the interlocutory appeal Article, 12-302(c)(3) Proceedings Courts and Judicial 1. Section of the (1974, part: Repl.VoL), relevant Maryland states in Code (3)(i) § defined in 14-101 involving a crime of violence as In a case Article, through §§ under 5-602 5- Criminal Law cases Article, the through §§ the Criminal Law 5-612 5-614 of 609 and may appeal of a trial court that excludes State from a decision requires property the return of evidence offered the State Constitution of alleged have been seized in violation the States, Constitution, Maryland Maryland or the Declara- United Rights. tion of (ii) jeopardy made before attaches to the defen- appeal The shall be However, appeal be taken no more than in all cases the shall dant. diligently and shall days has been rendered after the decision prosecuted. (iii) certify court that taking appeal, State shall to the Before delay purposes and that the evidence appeal taken for is not proof property required to be returned is substantial excluded or appeal proceeding. The shall be heard fact in the of a material days that the record on of the time the decision rendered within Otherwise, appellate the decision appeal in the court. is filed shall be final. trial court case, (iv) appeals basis of Except if the State on the in a homicide appeal the decision of the trial court paragraph, and if on final this affirmed, in the charges against defendant shall be dismissed case, may the State appeal taken. In that from which the case charges specific or on other prosecute on those the defendant charges arising same incident. out of the related 12-302(c)(3) under Section of the Courts and Judicial Pro- ceedings Article? 2. Assuming arguendo that an appellate jurisdic court has

Case Details

Case Name: Rush v. State

Court Name: Court of Appeals of Maryland

Date Published: Jan 11, 2008

Citation: 939 A.2d 689

Docket Number: 31, Sept. Term, 2007

Court Abbreviation: Md.