Bey v. State

DAVIS, Judge. Appellant Nasirrudin Abdullah Bey was convicted by a jury sitting in the Circuit Court for Prince George’s County (Johnson, G.R.Hovey, J.) of second degree murder and use of a handgun in the commission of a felony or a crime of violence. 1 The court sentenced him to consecutive terms of imprisonment of thirty and twenty years, respectively. Appellant asks the following three questions on appeal: I. Did the suppression court err in not suppressing his confession because he was not expeditiously brought before a commissioner after his arrest?

II

Did the trial court err in excluding lay opinion testimony by a police officer that appellant was possibly under the influence of PCP [Phencyclidine] at the ' time of his arrest? ⁶¹¹ III. Did the trial court err in refusing to instruct the jury that voluntary intoxication is a defense to second degree murder? We shall affirm the judgments of the trial court. To place in context the questions raised, we shall provide a brief recitation of the facts as elicited at appellant’s trial.

In addition, in reciting the suppression hearing facts, we shall emphasize the time of events as that is an important factor in the suppression issue he raises. During the early morning hours of April 2, 1999, appellant and several friends were “hanging out” in an abandoned house near the Martin Luther King Recreation Center on Church and Piedmont Streets in Glenarden, Maryland. After the group separated, appellant walked alone toward the recreation center when he encountered Kareem Nafu Brooks, the victim. The two had been friends but appellant had recently become angry with the victim, believing that he had betrayed him in some manner.

Appellant shot the victim six times and stabbed him twelve times with a knife, causing his death. After killing the victim, appellant encountered two of his friends — John Robinson and David Outlaw — that he had been with earlier. Appellant then left the area. Approximately two weeks later, on April 14, 1999, Robinson and Outlaw gave separate statements to the police.

In their statements, they related that appellant had admitted to having killed the victim. 2 The next day, pursuant to an arrest warrant, the police arrested appellant. While at the police station, appellant confessed to killing the victim. Appellant testified that, during the night of April 1 and the early morning hours of April 2, 1999, he was using PCP with his friends. He remembered being with them at an abandoned house but did not remember anything after that until he awakened the next morning at his girlfriend’s house.

Ap ⁶¹² pellant also testified that he was under the influence of PCP at the time of his arrest. SUPPRESSION HEARING FACTS At approximately 3:55 p.m. on April 15, 1999, the police arrested appellant near an apartment complex in Glenarden, Maryland, pursuant to an arrest warrant. Appellant asked Detective Kevin Curtis, the arresting officer, on what grounds they were arresting him. Detective Curtis told him that, if he had any questions, he should talk to the officer in charge of his case.

Although Detective Curtis had a copy of the arrest warrant and the charging document, he did not give appellant a copy of either. Corporal Michael Straughan, the lead investigator in the homicide investigation, met appellant at the Landover Police Station at 4:10 p.m. Corporal Straughan searched appellant and removed, among other things, several bullets from appellant’s coat pocket. Those bullets, upon later testing, matched the bullets recovered from the victim’s body.

Detective Straughan then placed appellant in an interview room, handcuffed him by the wrist to the wall, and placed ankle cuffs on him. Corporal Straughan left the room but returned several minutes later and asked appellant some personal information. At approximately 4:55 p.m., Corporal Straughan advised appellant of his rights from an Advice of Rights and Waiver form. Corporal Straughan read the form, which advised appellant that he had, inter alia, the right to remain silent, the right to talk to a lawyer, the right to have a lawyer present while being questioned, the right to have a lawyer appointed to represent him if he could not afford one, and the right to stop answering questions at anytime.

During this time, appellant also told the corporal, upon being asked, that he was not under the influence of drugs or alcohol at the time, that he had not been threatened or promised anything by the police, and that he was a 1996 graduate from a local high school. According to Corporal Straughan, appellant did not appear intoxicated in any way— ⁶¹³ he had no difficulty communicating, he was alert, and he spoke clearly. Appellant had no difficulty walking, understanding directions, and he had no complaints regarding his physical well being. Corporal Straughan found appellant cooperative and appellant appeared “normal, coherent, very calm.” Appellant then placed his initials next to each advisement and signed the form.

After signing the form, the corporal asked appellant if he had any questions and appellant replied that he did not. Appellant then indicated that he wanted to make a statement. After getting appellant a cup of coffee, Corporal Straughan told appellant that he wanted to talk to him about the victim. Corporal Straughan told appellant that he knew that he had gotten into a fight with the victim and killed him and he asked appellant to tell him what had happened.

Appellant then indicated to me that Kareem had crossed him, that he felt Kareem was out to get him, that he felt it necessary to get Kareem before he got him. He had indicated that he thought Kareem was his brother but Kareem was not, that Kareem was evil and that he thought he did what he had to do. Corporal Straughan spoke with appellant for approximately one hour. At approximately 8:00 p.m., appellant wrote an eight-page statement, which included a question and answer portion written by Corporal Straughan.

The statement was completed at 9:31 p.m. Corporal Straughan asked appellant to read it over, to make any corrections that he wanted, to initial each page of the statement, and to initial each answer he gave in the question and answer section. After completing the statement, Corporal Straughan asked appellant to take him to the locations where he hid the weapons used to kill the victim. Appellant agreed.

After giving him something to eat and letting him use the restroom, they set out in a police van with another officer driving. ⁶¹⁴ Appellant directed the officers to several locations approximately a ten minute drive from the police station. He first directed them to a tree in a residential area near the crime scene. At that location, the police found a .38 handgun. Appellant then directed them to the Martin Luther King Recreation Center, which was two blocks away.

He pointed to a soda can in the gutter and said the knife was near the soda can. The police recovered a knife. Appellant then directed them to a nearby trash can where he said he had burned his clothes. The police looked in the trash can and saw evidence of a recent fire.

They then returned to the police station at approximately 11:00 p.m. Upon their return, appellant was again placed in an interview room. Detective Nelson entered the interview room and spoke with appellant for approximately five minutes. At approximately 1:00 a.m., Corporal Straughan questioned appellant about the murder of a mini-mart owner in the same area as the victim’s murder.

Their conversation ended at 2:08 p.m. At 2:10 a.m., appellant consented to giving a saliva sample, which was then taken. Corporal Straughan returned to the interview room at approximately 2:25 a.m. and again spoke to appellant. From 3:11 a.m. until 4:00 a.m., appellant gave a six-page written statement confessing to killing the owner of the mini-mart.

After memorializing the second statement, appellant was released for processing. He was taken before a commissioner at 1:37 p.m. on April 18, 1999. This was approximately twenty-one hours after appellant first arrived at the police station. Corporal Straughan testified that the reason he did not take appellant before a commissioner upon his arrest was because he wanted to interview him.

While Corporal Straughan was with appellant, appellant was “alert, awake, at times emotional,” meaning “at times crying, at times he was remorseful, at times he was very descriptive, very articulate, very adamant in recalling details of the incident, and basically very informative in reference to what had happened in both cases.” No one other than appellant and Corporal Straughan ⁶¹⁵ were present in the room when he interviewed appellant about the murders of the victim and the mini-mart owner. DISCUSSION I Appellant argues that the trial court erred in not suppressing his confession. 3 He asserts that his confession was involuntary because the police did not take him before a commissioner “without unreasonable delay” after his arrest and because the police did not inform him of the charges against him when they arrested him or when they interviewed him. We perceive no error in the trial court’s ruling denying the motion to suppress. Maryland Rule 4-212(e), regarding the execution of warrants, provides, in pertinent part: Unless the defendant is in custody, a warrant shall be executed by the arrest of the defendant.

Unless the warrant and the charging document are served at the time of the arrest, the officer shall inform the defendant of the nature of the offense charged and of the fact that a warrant has been issued. A copy of the warrant and charging document shall be served on the defendant promptly after the arrest. The defendant shall be taken before a judicial officer of the District Court without unnecessary delay and in no event later than 2k hours after arrest[.] (Emphasis added.) On July 1, 1981, the Maryland General Assembly enacted Md.Code (1998 Repl.Vol., 2000 Supp.), Cts. & Jud. (C.J.) § 10-912, which provides: Failure to take defendant before judicial officer after arrest. ⁶¹⁶ (a) Confession not rendered inadmissible. — A confession may not be excluded from evidence solely because the defendant was not taken before a judicial officer after arrest within any time period specified by Title j of the Maryland Rules.

(b) Effect of failure to comply strictly with Title 4 of the Maryland Rules. — Failure to strictly comply with the provisions of Title 4 of the Maryland Rules pertaining to taking a defendant before a judicial officer after arrest is only one factor, among others, to be considered by the court in deciding the voluntariness and admissibility of a confession. (Emphasis added.) Thus, the delay in bringing a defendant before a judicial officer after an arrest is “only one factor, among others,” in deciding the “voluntariness and admissibility of a confession.” Voluntariness of a confession is determined under both Maryland non-constitutional law, i.e., Maryland common law, and the Due process Clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights. 4 Hoey v. State, 311 Md. 473, 480 , 536 A.2d 622 (1988). Under Maryland non-constitutional law, a confession is voluntary if it is free from “coercive barnacles.” Hillard v. State, 286 Md. 145, 150 , 406 A.2d 415 (1979). Whether a confession is free from “coercive barnacles” depends on the totality of the circumstances surrounding the defendant’s confession, including where the interrogation was conducted, its length, who was present, how it was conducted, its content, whether the defendant was given Miranda warnings, the mental and physical condition of the defendant, the age, background, experience, education, character, and intelligence of the defendant, when' the defendant was taken before a court ⁶¹⁷ commissioner following arrest, and whether the defendant was physically mistreated, physically intimidated or psychologically pressured.

Hof v. State, 337 Md. 581, 596-97 , 655 A.2d 370 (1995) (citations omitted). See also Young v. State, 68 Md.App. 121 , 510 A.2d 599 (1986)(the Court found that because the police had interrogated the defendant “almost continuously” for twenty-two and one-half hours by means of a relay team, the conduct of the police coupled with the duration of custody and interrogation rendered the defendant’s confession involuntary). In determining whether a confession is voluntary under the United States Constitution and the Maryland Declaration of Rights, we look to the decision of the Supreme Court in Colorado v. Connelly, 479 U.S. 157 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986). In Connelly , the Supreme Court held that “coercive police activity” is a necessary element to finding a confession involuntary.

Id. at 167 , 107 S.Ct. 515 . The Court stated that, “[ajbsent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Id. at 164 , 107 S.Ct. 515 (footnote omitted). The Court reasoned that a contrary rule would require “sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State.” Id. at 167 , 107 S.Ct. 515 . Applying the above law to the facts of the instant case, we perceive no error in the trial court’s holding that appellant’s confession regarding the victim was voluntary.

The record discloses no untoward coercion by the police. At the time of his arrest, appellant was twenty-one years old and had a high school education. Appellant was given Miranda warnings before the questioning and he signed and placed his initials next to each advisement. Appellant was questioned in an interview room for approximately one hour, during which he confessed to shooting and stabbing the victim.

Only one police officer, Corporal Straughan, questioned appellant. In ⁶¹⁸ addition, no other officer was present with Corporal Straughan during the questioning. Corporal Straughan testified that he did not threaten appellant in any way, nor did he offer him any promises. Although appellant testified at trial that he was under the influence of PCP at the time of his arrest, at the time he gave the statement, he told Corporal Straughan that he was not under the influence of any drugs.

In addition, Corporal Straughan testified that appellant physically and mentally seemed normal. See Hopkins v. State, 19 Md.App. 414, 423 , 311 A.2d 483 (1973)(“A confession is not inadmissible as evidence merely because the accused is under the influence of a narcotic drug, although the condition of the accused is a factor to be considered [in determining whether his confession is admissible].”). Because we are considering the first confession, the fact that appellant was not taken before a commissioner until approximately twenty-one hours after being brought to the police station and that he was not informed of the charges against him are not distinct factors to be taken into account in assessing the voluntariness of the confession under consideration. There was no evidence that appellant’s will was overborne by police tactics or that the police engaged in a method of interrogation to cause him to submit from exhaustion. 5 He was not physically or psychologically mistreated in any way and was given a meal and a bathroom break. 6 Under the circumstances presented, we hold that his confession was voluntary.

Appellant cites Young v. State, 68 Md.App. 121, 134 , 510 A.2d 599 (1986), in support of his argument that his confession was involuntary. In that case we wrote, “while allowing for necessary delays in presenting a defendant before a judicial officer, [Rule 4-212] does not countenance a delay for the ⁶¹⁹ principal purpose of obtaining a statement or a confession from the defendant.” Young, 68 Md.App. at 134 , 510 A.2d 599 (emphasis added)(quoting Meyer v. State, 43 Md.App. 427, 434 , 406 A.2d 427 (1979)). That statement was a restatement of the federal McNabb-Mallory Rule, so named after the cases that bear those names. See McNabb v. United States, 318 U.S. 332 , 63 S.Ct. 608 , 87 L.Ed. 819 (1943); Mallory v. United States, 354 U.S. 449 , 77 S.Ct. 1356 , 1 L.Ed.2d 1479 (1957).

In McNabb, supra, the issue presented was the voluntariness of the confessions given by three brothers who were accused of shooting and killing a federal officer. The three brothers were in their early to mid twenties, had lived their entire lives in a small area called the McNabb Settlement, approximately twelve miles from Chattanooga, none had gone beyond the fourth grade, and none had ever traveled farther from their home than Jasper, a town twenty-one miles away. McNabb, 318 U.S. at 334, 337 , 63 S.Ct. 608 . Two of the brothers were brought to the police station and questioned over a two-day period.

The other brother was strip searched prior to questioning. No less than six officers questioned the brothers at the same time. Id. The applicable law in effect at the time provided that a person arrested by the Federal Bureau of Investigation “shall be immediately taken before a committing officer.” Id. at 342 , 63 S.Ct. 608 (citing 18 U.S.C. § 595 , 5 U.S.C. § 300a, and 18 U.S.C. § 593 ).

The Court stated that requiring the police to “immediately” bring an arrested person before a judicial officer constitutes an important safeguard — not only in assuring protection for the innocent but also in securing conviction of the guilty by methods that commend themselves to a progressive and self-confident society. For this procedural requirement checks resort to those reprehensible practices known as the “third degree” which, though universally rejected as indefensible, still find their way into use. It aims to avoid all the evil implications of secret interrogation of persons accused of crime. It reflects not a sentimental ⁶²⁰ but a sturdy view of law enforcement, it outlaws easy but self-defeating ways in which brutality is substituted for brains as an instrument of crime detection.

McNabb, 318 U.S. at 344 , 63 S.Ct. 608 (footnote omitted). The Court further stated: The circumstances in which the statements admitted in evidence against the petitioners were secured reveal a plain disregard of the duty enjoined by Congress upon federal law officers. Freeman and Raymond McNabb were arrested in the middle of the night at their home. Instead of being brought before a United States commissioner or a judicial officer, as the law requires, in order to determine the sufficiency of the justification for their detention, they were put in a barren cell and kept there for fourteen hours.

For two days they were subjected to unremitting questioning by numerous officers [mostly six officers at the same time]. Benjamin’s confession was secured by detaining him unlawfully and questioning him continuously for five or six hours. The McNabbs had to submit to all this without the aid of friends or the benefit of counsel. McNabb, 318 U.S. at 344-45 , 63 S.Ct. 608 .

The Court then held that the brothers’ confessions must be suppressed. In Mallory v. United States, 354 U.S. 449 , 77 S.Ct. 1356 , 1 L.Ed.2d 1479 (1957), a nineteen-year-old of limited intelligence was taken to a police station for questioning regarding the rape of a co-tenant the day before. He was questioned between thirty and forty-five minutes by at least four officers and in the presence of other officers. He then agreed to submit to a lie detector test.

About five hours later, the police administered the lie-detector test. Appellant was questioned for nearly one and one-half hours of steady interrogation during which he eventually confessed to the rape. He dictated his confession to a typist several hours later. He was ' taken before a commissioner the morning after his arrest.

The issue before the Supreme Court was the admissibility of his confession. The relevant law was Rule 5 of the Federal Rules of Criminal Procedure, which was promulgated in 1946. ⁶²¹ Rule 5(a) provides that an officer shall take an “arrested person without unnecessary delay before the nearest available comxnissioner[.]” The Mallory Court reviewed the requirements of Rule 5(a), writing: The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he [or she] may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be “booked” by the police. But he [or she] is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his [or her] guilt.

The duty enjoined upon arresting officers to arraign “without unnecessary delay” indicates that the command does not call for mechanical or automatic obedience. Circumstances may justify a brief delay between arrest and arraignment, as for instance, where the story volunteered by the accused is susceptible of quick verification through third parties. But the delay must not be of a nature to give opportunity for the extraction of a confession. The circumstances of this case preclude a holding that arraignment was “without unnecessary delay.” Petitioner was arrested in the early afternoon and was detained at headquarters within the vicinity of numerous committing magistrates.

Even though the police had ample evidence from other sources than the petitioner for regarding the petitioner as the chief suspect, they first questioned him for approximately a half hour. When this inquiry of a nineteen-year-old lad of limited intelligence produced no confession, the police asked him to submit to a “lie-detector” test. He was not told of his rights to counsel or to a preliminary examination before a magistrate, nor was he warned that he might keep silent and “that any statement made by him may be used against him.” After four hours of further detention at headquarters, during which arraignment could easily have been made in the same building in which the police headquarters were housed, petitioner was examined by the same building operator for another hour and a half ⁶²² before his story began to waiver. Not until he had confessed, when any judicial caution had lost its purpose, did the police arraign him.

Mallory, 354 U.S. at 454-55 , 77 S.Ct. 1356 (emphasis added). The Court then suppressed the confession. Maryland adopted the per se exclusionary rule of McNabb-Mallory in Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), a 4-3 decision. The Johnson Court explained that “the protection of the right of an accused to prompt production before a judicial officer following arrest will be most effectively accomplished by a per se exclusionary rule.” Johnson, 282 Md. at 328 , 384 A.2d 709 .

The Court reasoned that the exclusionary rule was necessary to preserve the integrity of the criminal justice system. The Johnson exclusionary rule, however, was abrogated when the Maryland General Assembly, on July 1, 1981, enacted C.J. § 10-912. Since then we have scrutinized the admissibility of confessions under a totality of circumstances standard. See Marr v. State, 134 Md.App. 152, 165 , 759 A.2d 327 (2000)(“the delay in bringing the defendant before' a judicial officer after an arrest is only one factor, among others, to be considered by the court in deciding the voluntariness and admissibility of a confession.”) (quotations and citations omitted).

See also Romualdo P. Eclavea, Annotation, Admissibility of Confession or Other Statement Made by Defendant as Affected by Delay in Arraignment — Modern State Cases, 28 A.L.R.4th 1121 (1984, 2000 Supp.). Thus, the fact that the police did not immediately bring appellant before a commissioner because they first wanted to question him, does not automatically lead to exclusion. Rather, we look to the totality of circumstances to determine if the confession was voluntarily given. Under the circumstances of the case sub judice as discussed above, we hold that it was.

II Appellant argues that the trial court erred in not permitting him to cross-examine a police officer regarding his condition at the time of his arrest. ⁶²³ Detective Kevin Curtís, a sixteen-year veteran of the police department and an arresting officer, testified on cross-examination that he had encountered many people who were under the influence of PCP; that people under the influence of PCP behaved erratically, from calm to very violent and combative; and that while transporting appellant to the police station, appellant volunteered that he “was a child of PCP.” The court