Aguilera-Tovar v. State

KRAUSER, C.J. Convicted by a jury in the Circuit Court for Montgomery County of one count of sexual abuse of a minor 1 and three counts of third-degree sexual offense, 2 Guillermo Aguilera-Tovar, appellant, presents two issues for our review. They are: whether the trial court erred in denying his motion to suppress the post-polygraph statements he made to the police and whether he was denied a fair trial. Because we conclude that the statements appellant made to the police, following his polygraph examination, were unlawfully obtained and should have been suppressed, we reverse appellant’s convictions and remand for further proceedings, without reaching the second issue, that is, whether appellant was denied a fair trial. ¹⁰⁰ Suppression Hearing Before trial, a hearing was held on appellant’s motion to suppress statements he had made to police detectives during an interview at the building housing the Family Crimes Division of the Montgomery County Police Department. At that hearing, three detectives testified: Karen Carvajal, Miguel Marquez, and Chad Williams.

According to their collective testimony, Fidel Z., 3 on November 2, 2009, contacted the Family Crimes Division to report that his seven-year-old son, Angel Z., had been fondled by appellant one week earlier at the Rockville home that he, his girlfriend, and her children shared with appellant, his girlfriend, and their children. 4 Following that disclosure, Detective Williams arranged for Angel to be interviewed by a social worker employed by Child Protective Services of the Montgomery County Department of Health and Human Services. Angel told the social worker, according to the detective, 5 that appellant had made him fondle appellant’s “genital area,” and then he had attempted to penetrate Angel’s anus, with his penis. Accompanied by Detective Carvajal, who was fluent in Spanish, Detective Williams drove to appellant’s Rockville home. The detectives were in plain clothes but wore identification badges about their necks.

When they arrived, the two detectives left their car and walked up to the door, where Detective Carvajal was greeted by an unidentified woman. ¹⁰¹ After the woman was asked by the detectives whether appellant was home, she left the detectives, only to return, a few minutes later, with appellant. In Spanish, Detective Carvajal asked appellant whether he could speak with them “privately.” After appellant stepped “outside,” Detective Carvajal suggested that they talk in the detectives’ car. Appellant agreed and accompanied them to that vehicle. As the detectives and appellant sat inside the detectives’ car, Detective Carvajal advised appellant that “he was not under arrest” and asked him if he knew why they were there.

Appellant replied that he did. At the conclusion of the interview, during which appellant, in the court’s words, “denied whatever the accusations were,” appellant agreed to take a polygraph examination the following morning. No mention was made by either detective that an interrogation 6 by police would or even might follow that exam. The detectives and appellant then walked back to the house.

Standing just outside the house, the detectives spoke with several members of the family, who, in the words of Detective Carvajal, “came out to talk.” Angela Leiva Aguilera, appellant’s girlfriend (and later his wife), 7 agreed to be interviewed, with the couple’s children, at the Family Crimes Division the following morning. The next morning, appellant, Ms. Aguilera, and their children arrived at the Family Crimes Division. The building housing that division has, in the words of Detective Carvajal, a “big blue sign right outside the door,” indicating that it is a “police facility.” Although the signage was in English, the ¹⁰² court observed that the Spanish and English words for “police” look “pretty much the same.” 8 While Ms. Aguilera and the children were taken by Detective Williams to be interviewed by a social worker from Child Protective Services, appellant was escorted to the polygraph suite by Detective Carvajal, where she left him with Detective Marquez, the polygraph examiner. Detective Marquez conducted the ensuing polygraph examination of appellant in Spanish.

The examination lasted about an hour. At its inception, Detective Marquez explained to appellant that “he was there voluntarily and that he could leave at any time.” When he asked appellant whether he knew why he was being asked to take a polygraph test, appellant acknowledged, according to the detective, that it was because of allegations that he had molested Angel Z. At no time before or during the polygraph test was appellant advised of his Miranda 9 rights. When the polygraph examination ended, appellant, accompanied by Detective Marquez, walked back to the “adult interview” rooms and entered one of them, where they were greeted by Detectives Carvajal and Williams. 10 Appellant then expressed a desire to use the restroom. While appellant was being escorted to the men’s room, Detective Marquez advised Carvajal and Williams of the outcome of the polygraph test, telling them that the “results were indicative of deception.” When appellant finished using the restroom, he was escorted back to an “adult interview” room, where he sat, by ¹⁰³ himself, for about ten to fifteen minutes.

The room was windowless and had a single door that closed but did not lock. It contained a table where appellant sat, at one end, in a corner farthest from the door. When Detectives Carvajal and Williams entered the room, Detective Williams sat across the table from appellant, while Detective Carvajal sat between appellant and the door. Detective Carvajal testified that she was in plain clothes, unarmed, and that, in fact, “[ejveryone” who worked there was in plain clothes.

The ensuing interrogation, which lasted about an hour and a half, was conducted in Spanish by Detective Carvajal, and it was video recorded. 11 Although Detective Williams was in the room during much of the interrogation, he occasionally left the room for short periods of time and re-entered, because, as he did not speak Spanish, he could not directly participate in the interrogation. At no time before or during the interrogation was appellant advised of his Miranda rights. After greeting appellant, Detective Carvajal informed him that the detectives “wanted to speak to [him] about the results” of the polygraph test. She then told appellant that Detective Marquez had showed her the test results. “[L]ook, look and see how your results came out____[Y]ou didn’t do well Guillermo.

You didn’t pass the test,” she exclaimed. When appellant failed to respond, she continued, “that means that something obviously happened with you and Angel.” “You are not,” she persisted, “telling us the whole truth about what happened with him.” Then, not pausing for a response, she added, “maybe it did not happen the way Angel said, but something, something must have happened, or you would not have, the test would not have gone so badly.” When, in response to her accusations, appellant said, “Like I told you, I’ve never done anything to him,” the detective assured him that she did not believe that he “had the intention ¹⁰⁴ that day ... of ... abusing” Angel but insisted that “something happened, something happened, Guillermo.” Failing to obtain an inculpatory response from appellant, Detective Carvajal pressed forward with the question: “[W]hat happens if we tell [your wife] that you, that we did this test on you, ... that is it [sic] almost (100%) correct or that the probability that something happened, because the test is (100%) uh, almost (100%) uh, what is she going to say?”, adding: “Now you have the chance to, to tell the truth, and maybe it’s not so bad” but that “the way it looks right now” is “the way Angel told it.” Then, avowing that Angel “doesn’t have a reason to lie,” the detective demanded that appellant explain “why ... you didn’t pass this test.” When appellant answered, “I have never touched him, nor has he touched me anywhere,” the detective inquired, “So how do we settle it? Because now we have the, the, he who is saying that, that this happened, ... you who is saying no, but that, that, you took this test and you couldn’t pass it, which says that you’re lying, so, what do we do? How can we settle this?” Then, taking a different tack, Detective Carvajal said, “[i]f it was Angel’s idea [to touch you], it’s not your fault,” whereupon appellant responded that he did not feel Angel touching him but conceded that he “[did not] know.” The detective retorted: Like, well, you do know, Guillermo, because you, the test, the results of the test ... were like that, because you know something.

You thought something, you remember something, or if not, you wouldn’t have, you wouldn’t have, you could have passed it. Do you understand me? If, if nothing really happened, or if you don’t remember that nothing happened, ... you would not have done badly in the test. But, obviously you have to, you were thinking something about what happened.

You were remembering something, or, or you were thinking about something that happened with Angel, and that’s why you could not pass it. Now the test, uh, does not distinguish between something true—a big lie and a small lie. For the test, a lie is a lie. It doesn’t matter if it’s a big lie or a small one, OK?

And that’s why ¹⁰⁵ I’m trying to explain to you, and, and, and give you the opportunity to explain to me because the question he asked you is if you had, he, if Angel had touched your penis, ... OK? “The only thing I know,” concluded Detective Carvajal, “is that this test ... says that you lied.” When appellant again denied that any inappropriate touching had occurred, the detective would have none of it: “But you felt something, otherwise you wouldn’t have, you wouldn’t have, you would not have done like that on the test, Guillermo.” Then, adopting a more conciliatory tone, she said: “But that’s why we’re only talking, because if it had been something more serious, OK, if you had raped him ... but this really is minor, and we’re only trying to see how we’re going to fix this____But I think that this, this is something that can be resolved in another way, talking about the situation, to see how we’re going to fix this.” As the interview progressed, appellant’s story began to change. Although he initially denied that anything had happened between Angel and him, he eventually admitted that he had been hugging and tickling Angel, as he “always” did, but that there had been “nothing more.” But, later, appellant conceded that, as the two played, his penis had hardened and that Angel had grabbed it on his own initiative, “as if he had done it on purpose to put his hand inside or something” and not because he, appellant, had forced Angel to do anything. And he insisted that, when Angel touched him, he told the child to “go upstairs” and that “[t]hat was all” and, furthermore, that “nothing bad” had happened.

At that point, Detective Carvajal told appellant that she would tell Angel what he had said. Appellant was then allowed to use the restroom without an escort, provided that he agreed to return to the interview room. While appellant was in the restroom, Detective Carvajal conferred with Detective Williams and “let him know what was going on.” Williams asked Carvajal to pose “follow-up questions” to appellant about “[ojther family members that were in Maryland, other family members that were abroad, ¹⁰⁶ his current employment, and his immigration status.” When appellant returned from the restroom, Detective Carvajal asked him those questions and learned, among other things, that he had cousins in Baltimore, Cleveland, and Kansas; that he was unemployed; that he was from Mexico; and that he was illegally in the United States. After briefly stepping outside the interview room and informing Detective Williams of appellant’s answers, Detective Carvajal re-entered the interview room, along with the social worker assigned to the case, who then confronted appellant with Angel’s accusation that he had “touched [Angel’s] butt with” his penis.

Appellant denied the accusation, suggesting that Angel was “lying or something” and that “nothing happened.” At that time, Detective Williams re-entered the room and placed him under arrest. Suppression Ruling At the conclusion of the hearing, the suppression court stated that “there certainly was an interrogation involved,” and, thus, the only issue that remained was whether appellant was in custody during that interrogation. Holding that he was not, the court found that appellant was told by “the police” that he was “free to go” (but did not specify when this occurred); 12 that, when police visited appellant at his residence, the day before the station house interrogation, he “voluntarily accompanie[d]” the detectives to their car; that, during the ensuing vehicular interview, “he denied the accusations” but agreed to go to the Family Crimes Division the following morning to take a polygraph examination; that he knew “the purpose” of that visit, which was “to give him a test to determine whether or not [he was] telling the truth”; that appellant “came [sic] voluntarily, due to his appointment,” to the police station to submit to the polygraph examination; that appellant “knew they were police”; that there was a “big ¹⁰⁷ sign” outside the entrance which identified the building as a police facility; and that nothing before or during the station house interrogation prevented him from leaving the police station at anytime. The court therefore held, as noted, that appellant was not in custody at the time he made the post-polygraph statements; that those statements were voluntary; and that, as a consequence, his statements passed were admissible at trial ...

Discussion Appellant contends that the trial court erred in denying his motion to suppress his post-polygraph statements to the police, because, at the time he gave those statements to the police, he was in custody and yet had not been given the Miranda advisements. But, before we proceed down this path, we must first determine whether a review of this issue is even appropriate, given the State’s claim that this issue was not preserved for our consideration. A review of the record shows that it was. As part of its custody determination, the suppression court plainly considered whether appellant was confronted with the results of the polygraph examination and the effect of that confrontation, stating that it did not “know why [there would] be any reason to believe that once they told him that he failed the polygraph test,” he would have felt compelled to remain at the police station.

As Maryland Rule 8-131(a) requires: For an issue to be preserved for appellate review, it must either “have been raised in or decided by the trial court,” and as this issue was decided by the suppression court, we need say no more. The prosecution may not introduce, in its case-in-chief at the trial of a defendant, a statement made by that defendant during a custodial interrogation unless, during that interrogation, the police first advise the defendant that “he has the right to remain silent, that any statement he does make may be used as evidence against him, and that he has the right to the presence of an attorney, either retained or appointed.” ¹⁰⁸ Miranda v. Arizona, 384 U.S. 436, 444 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). The corollary to this rule is that, to successfully claim the right to such advisements, a defendant must show that, at the time he gave his statement to police, he was in custody and was being subjected to an interrogation. State v. Thomas, 202 Md.App. 545, 565 , 33 A.3d 494 (2011), aff'd, 429 Md. 246 , 55 A.3d 680 (2012).

In this case, it was, as the suppression court observed, undisputed that appellant was subjected to an interrogation at the time he made the statements at issue. Thus, the only question before us is whether appellant was also in custody at that time, thereby rendering his “interview” a “custodial interrogation,” the sine qua non of Miranda advisements. This question requires that we perform “an objective inquiry.” J.D.B. v. North Carolina, 564 U.S.-, 131 S.Ct. 2394, 2402 , 180 L.Ed.2d 310 (2011). That is to say, the test for determining whether an individual is in custody is “whether a reasonable person would understand that his freedom of action is restricted to a degree associated with formal arrest.” Thomas, 202 Md.App. at 567 , 33 A.3d 494 ; see also Thompson v. Keohane, 516 U.S. 99, 112 , 116 S.Ct. 457 , 133 L.Ed.2d 383 (1995) (stating that the “ultimate inquiry” in determining Miranda custody is whether there was “a formal arrest or restraint on freedom of movement of the degree associated with a formal arrest”) (internal quotation marks and alterations omitted).

Among the many factors that are relevant to that inquiry are: “when and where [the interrogation] occurred, how long it lasted, how many police were present, what the officers and the defendant said and did, the presence of actual physical restraint on the defendant or things equivalent to actual restraint such as drawn weapons or a guard stationed at the door, and whether the defendant was being questioned as a suspect or as a witness.” ¹⁰⁹ Owens v. State, 399 Md. 388, 429 , 924 A.2d 1072 (2007) (quoting Whitfield v. State, 287 Md. 124, 141 , 411 A.2d 415 (1980)). But the principal factor raised by appellant is one that has not been previously addressed by our appellate courts. 13 It is: whether a defendant, confronted with negative polygraph results during his interrogation, where that confrontation is persistent, unrelenting, and accusatory, is “in custody” for Miranda purposes, in light of surrounding circumstances. Because the test is objective, we need be mindful that the subjective views of the officer and suspect are irrelevant. Stansbury v. California, 511 U.S. 318, 323 , 114 S.Ct. 1526 , 128 L.Ed.2d 293 (1994) (per curiam).

Indeed, the “frailties or idiosyncrasies” of the suspect, if not a child, 14 are not factors in the custody analysis. J.D.B., 564 U.S. at-, 131 S.Ct. at 2404 (quoting Yarborough v. Alvarado, 541 U.S. 652, ¹¹⁰ 662 , 124 S.Ct. 2140 , 158 L.Ed.2d 938 (2004)). 15 Simply put, the inquiry is “how a reasonable person in the position of the individual being questioned would gauge the breadth of his or her freedom of action.” Alvarado, 541 U.S. at 663 , 124 S.Ct. 2140 (internal quotation marks omitted). A review of all of the circumstances surrounding appellant’s inculpatory statements, none of which are in dispute, leads us to conclude, after “performing] our own independent constitutional appraisal of the law as it applies to the facts of the case,” Collins v. State, 192 Md.App. 192, 215 , 993 A.2d 1175 (2010), that appellant was “in custody,” when he gave those statements to Detective Carvajal following his polygraph examination. At the time he made the statements at issue to police, he was in an interrogation room at a police station and was aware that he was a suspect.

Although these factors are hardly dispositive of the question of custody (see Thomas, 202 Md.App. at 571 , 33 A.3d 494 and cases cited therein), they are to be considered and weigh in favor of a finding of custody. Id. See Cummings v. State, 27 Md.App. 361, 369 , 341 A.2d 294 (1975) (“Although the place of interrogation is not the conclusive or sole factor to be considered in determining the fact of custody, it is a vital factor.”). When a suspect is made aware of the fact, as he was here, that he is a suspect in a case and is not merely being questioned as a witness, that too weighs in favor of a finding of custody.

See Buck v. State, 181 Md.App. 585, 624 , 956 A.2d 884 (2008) (“one factor in assessing the existence of custody” is ¹¹¹ whether the suspect is aware, during the interrogation, that he is the “focus of [the] investigation”). The day before the polygraph, when Detective Carvajal asked appellant, as they both sat in a police car, if he was aware of why the detectives were speaking with him, appellant acknowledged that he knew he was suspected of having fondled Angel. Furthermore, just before the polygraph examination, appellant confided to Detective Marquez that he agreed to submit to that test because of the suspicion that he had molested Angel. Finally, during the post-polygraph interrogation by Detective Carvajal, it is clear that appellant knew that child-sex-abuse allegations had been made against him and that he was suspected of that crime, as evidenced