Cooper v. State

BARBERA, J. This murder case involves application of the Supreme Court’s recent decision in Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004). With Seibert , the Court reinforced the protections afforded by Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Miranda , of course, held that a custodial confession obtained without benefit of proper warnings and waiver of the rights to silence and representation by counsel is generally barred from use by the State at trial. In Seibert , the Supreme Court struck down the two-step, “question first” interrogation strategy employed by some police.

This strategy is one in which the police purposefully withhold Miranda warnings during a custodial interrogation until after an incriminating statement is obtained, then administer proper Miranda warnings, secure a proper waiver, and elicit a second confession, ostensibly admissible in court. The Court held in Seiberi that, when such a technique is used, the second confession must be suppressed because the “midstream recitation of warnings after interrogation and unwarned con ⁷⁴ fession could not effectively comply with Miranda’s constitutional requirement.” 124 S.Ct. at 2605 . In the present case, the police engaged in the question first strategy when interrogating appellant, Brian Christopher Cooper. Two statements were produced during the interrogation, the first unwarned, the second, warned.

The State did not attempt to introduce the first statement at appellant’s trial, but, over appellant’s objection, did introduce the second statement, to appellant’s prejudice. We therefore agree with appellant that his murder conviction and associated weapons convictions must be reversed, and the case returned to the Circuit Court for Baltimore City for a new trial. BACKGROUND On the night of April 16, 2002, appellant, who was then 18 years old, stabbed 21-year-old Elliott Scott in Baltimore City, following an altercation earlier that evening between the two men. Scott died two days later, and the investigation into his murder led the police to suspect appellant as the assailant.

Appellant was arrested on a warrant, approximately one month after the crime. At the police station following his arrest, appellant was subjected to interrogation and gave two statements. On learning that the State planned to use the second of these statements at trial, appellant filed a motion to suppress it, arguing, inter alia, that it was obtained in circumvention of Miranda . The Suppression Hearing The warrant to arrest appellant issued on May 15, 2002, and, at approximately 5:30 p.m. that day, members of the Southwestern District Narcotics Unit arrested him and took him to the Southwestern District station house.

After a short while, appellant was transported to the Homicide Unit in downtown Baltimore. Appellant arrived at the Homicide Unit at 6:22 p.m. and was initially placed in a secured interview room. Detective William Ritz removed the heavy plastic handcuffs that had bound ⁷⁵ appellant’s wrists since his arrest. Within ten minutes, however, appellant was escorted into the office of Sargent Barry Grant, where Homicide Unit Detectives Ritz and Michael Baier were waiting for him.

Detective Ritz initiated his interview with appellant sometime before 7:00 p.m. The detective acknowledged that neither at that time nor at any time in the next hour and a half did he or anyone else inform appellant of his Miranda rights. During this 90-minute period, Detective Ritz first filled out an information sheet, with appellant’s assistance. 1 The detective also advised appellant that he had been arrested on charges of first degree murder and related weapons violations. The detective then began a “rambling” discourse about the crime and what his investigation had disclosed.

Asked to describe this “procedure or process,” Detective Ritz stated: Several things. It’s just kind of rambling on. Like I said, I told him [about] my investigation, I had an arrest warrant for him for the homicide of ... Scott, that had occurred on April 17th.

I told him the location. Told him that I had spoken with several people during my investigation and that those individuals that I had spoke[n] with identified him as the person involved in the incident. I gave him some background information on the victim, portraying the victim as not necessarily a nice guy. That there’s two sides to every story, that I had people that had seen him arguing with the victim that evening.

I had witnesses that saw him getting out of a vehicle chasing after the victim that evening, and I kept reiterating that there’s two sides to every story. At that time he just sat there. At times he had his head down and he wasn’t — it wasn’t a question and answer type thing. Like I said, I’m just ⁷⁶ rambling on and talking and talking for approximately an hour and a half.

During this stage of the interview, Detective Ritz showed appellant the face page of the arrest warrant. Detective Ritz also had the approximately two and a half inch homicide file sitting on the desk in the room, where appellant could see it. Shortly after 9:00 p.m., appellant advised Detective Ritz that he wanted “to tell [] his side of the story.” The detective did not attempt to stop appellant from speaking, nor did he issue Miranda warnings. Appellant gave the following statement at that time, as recounted by Detective Ritz at the suppression hearing: [Appellant] made the statement that he was arguing with the victim.

He left the area. Went to a girl’s house. Saw the victim later but he didn’t stab him. The victim started arguing with him and he was inside a vehicle, got out, got back in the car and drove off.

After appellant said this, Detective Ritz “told him to stop what he was saying” because the detective wanted to tape appellant’s statement and advise him of his Miranda rights. Appellant agreed to make an audiotaped statement, and the recording system was set up. The audio recording, which was transcribed for the suppression hearing and later introduced at trial, captured Detective Ritz’s laying out the background of the investigation, reviewing with appellant what had occurred in the previous 90 minutes, and then, at approximately 9:05 p.m., advising appellant of his Miranda rights. Detective Ritz gave appellant a written explanation of his rights and asked him to “familiarize himself with” them.

Then, the detective informed appellant of his rights and asked him to put his initials next to each line stating his rights, to indicate that he understood each of them. Appellant’s name or initials appear next to each of his rights. Following this, Detective Ritz elicited a statement from appellant through a series of questions and answers. Twenty- ⁷⁷ two minutes elapsed during the taking of this statement.

Below is the pertinent portion of the exchange: Ritz: Okay, ... what I said before about there’s two sides to every story. It’s extremely important, I wasn’t there when all of this took place. My responsibility in, in this investigation is re-creating what happened that night. And I do that from physical evidence on the scene, from witnesses that are located and interviewed and any other forensic evidence that is collected and I try to re-create what happened that night.

You had indicated that you were involved with a, in an argument with [the victim], is that true? [Appellant]: Yes. Ritz: How long have you known [the victim]? [Appellant]: A long time. Ritz: What’s a long time to you? [Appellant]: About six years. Ritz: About six years? ...

During the six years of knowing [the victim], how would you describe your relationship with him? [Appellant]: I never say nothing to him. * * * Ritz: Okay going back to the evening of Tuesday, April the sixteenth, you were in the area of the hack[ 2 ] stand at Fairmount and Franklintown Road? [Appellant]: Yes. Ritz: Tell me what happened Brian? [Appellant]: He walked up, he said something to me, we started arguing, I got in a hack. Ritz: Okay, if I can just stop you for a second. You said you walked up, he said something to you.

What did he say to you? ⁷⁸ [Appellant]: [”]What you looking at?[”] Ritz: And what was your response? [Appellant]: What you mean? Ritz: And what did he say? [Appellant]: [”]What’s up?[”] Ritz: Did you get the impression that, well what was your impression that he was trying to do? [Appellant]: He was trying to fight. Ritz: He was trying to fight? [Appellant]: Yeah. Ritz: Did it seem like he was showing off for anyone? [Appellant]: No not really, I don’t know, I just thought he was drunk.

Ritz: You thought he was drunk? What made you think that [he] was drunk or gave you that impression? [Appellant]: I don’t know. He be, they always be drinking over there a lot. I don’t know.

Ritz: Okay I didn’t know if his speech was slurred or just his actions made you think that he was drunk and was trying to pick a fight with you. [Appellant]: Yes. Ritz: I’m sorry. [Appellant]: Yes. Appellant then described how he got into a hack and was driven to his grandmother’s house. He remained there for two to three minutes, then returned to the hack.

The statement resumed with the following: [Appellant]: I go down Fairmount and Catherine and [the driver] was gonna make the left to go up Fayette, so I could get back to Franklintown Road on the way we usually make it home. And I see the person or LT [ie., the victim]. And he say something to me, so the hack stopped. Ritz: Okay what does he say to you Brian? [Appellant]: He said, “What’s up?” Ritz: And do you.... ⁷⁹ [Appellant]: In terms like he was still trying to fight.

Ritz: Okay can you describe his tone of voice it was like, you said he, as if he was still trying to fight? [Appellant]: He sound a little hyper. Ritz: Okay so the hack stops the car. [Appellant]: Yeah. Ritz: Then what happened? [Appellant]: I get out the hack and when I get out the hack he take off. And I looked and see him running up an alley and my hack started pulling off like he was leaving me.

So I got back in my hack and went home. Ritz: Okay when [the victim] takes off running, you said he’s on Catherine Street walking towards Fayette, is that true? You’re coming down Fairmount Avenue and you make a left-hand turn onto Catherine? [Appellant]: Yeah, yes. Ritz: Yes?

Okay. You see him walking along, is he walking with anyone else? [Appellant]: I don’t remember. Ritz: Okay. As you see him, he says something to you? [Appellant]: Yeah.

Ritz: Okay, do you get out of the car at that time? [Appellant]: No, the car, I tell the hack [to] stop. And when it stopped, I looked at him and he just started running. That’s when I standed up and shut the hack door and looked. He went up a[n] alley, I just got back in the hack and left.

Ritz: Okay at anytime Brian from when you come back around to Catherine Street and you see [the victim] again, do you get in any sort of physical confrontation with him or anyone? [Appellant]: No. As the statement continued, appellant said that he was unarmed, did not physically confront Scott, and only orally confronted him from a distance of six feet away. Appellant ⁸⁰ proclaimed his innocence, stating that, when he last saw Scott, he was uninjured and rimning up an alley. On cross-examination, Detective Ritz explained why he conducted the first part of the interview as he did: “I was in no rush to anger him, upset him in any way where he [would] just kind of shut me down and [say] the heck with it. You know, I want an attorney....” Defense counsel pursued this with the detective: [DEFENSE COUNSEL:] Well, let me rephrase the question.

Maybe I will make it a little less objectionable. You didn’t want him to ask for a lawyer because that would have been the end of that, correct? [RITZ:] Yes, sir, whether it was in the first five minutes or the first two hours or twelve hours later. [DEFENSE COUNSEL:] And that’s the reason why during this one and a half hour period, hour period, you didn’t say anything about Miranda and lawyers, correct? [RITZ:] That’s correct, because as soon as he was brought out of the interview room I didn’t take him into the room and advise him of his rights, that’s correct. [DEFENSE COUNSEL:] Because you felt it was, I guess a good technique to get his trust? I mean you weren’t yelling at him, were you? [RITZ:] No, sir. [DEFENSE COUNSEL:] Sitting across the table? [RITZ:] Yes, sir, I was trying to gain his trust. Sometimes people when they come in contact with the police they have a stereo type of police.

I wanted him to get to know me and get to know him, you know, as well as him feeling comfortable with talking with me. Appellant presented two grounds for suppression of the taped statement. He argued, first, that it was the product of an unlawful inducement by Detective Ritz and the narcotics officers who arrested him. Second, pertinent to this appeal, he argued that the statement was the unlawful fruit of a Miranda violation.

After hearing the parties’ arguments for ⁸¹ and against suppression of the statement, the motions court ruled that appellant’s post-warned statement was voluntary. The court then turned to appellant’s claim that the statement was taken in violation of Miranda : Now, with respect to his right to remain silent, was he Mirandized, the State must prove by a preponderance of the evidence that [appellant] has been warned adequately and waived the privilege against self incrimination knowingly and intelligently under the totality of the circumstances. There must be some police coercive activity to say that [appellant’s] waiver was not voluntary. There was none here.

It was voluntary. Again the starting point is that [appellant] himself said it was. Secondarily, [appellant] was most certainly under interrogation when Detective Ritz was talking to him for 90 minutes. However, no statement was made during that time.[ 3 ] The statement to be offered by the State was made after the Miranda warning.

And Fried versus State, as well the other cases cited to this Court by the State, puts to rest any thought that this statement was coerced because of Detective Ritz’[s] interrogation during the 90 minutes. For these reasons, the State has met its burden and the statement is admissible. The Trial Tony Alexander, the hack driver who was in appellant’s company several times on the night of the stabbing, testified as one of the State’s primary witnesses. Alexander first saw appellant, one of his regular hack customers, with the victim, Scott, near the hack stand located at the corner of Fairmont Avenue and Franklintown Road.

Scott was “cussing and fussing” and calling appellant names like “bitch” and “punk.” ⁸² Alexander heard appellant respond, “What you talking about,” and, “You better go ahead with that.” Shortly after this, appellant ran to Alexander’s car and asked for a ride. Alexander drove appellant to his grandmother’s house. Appellant went into the house, and returned to the car after “a minute or two.” Appellant sat in the front passenger’s seat and asked to be taken to Fayette Street, a block from Scott’s residence. Alexander saw nothing in appellant’s hand.

Upon reaching Fayette Street, appellant talked to some females, while remaining in the car. He then asked Alexander to take him to the McCullogh Homes, near the spot where appellant and Scott had exchanged words earlier in the evening. As he was driving to that destination, Alexander saw Scott standing at the corner of Fayette and North Catherine Street. He was with a female whom Alexander recognized as having been with Scott during appellant’s first encounter with him.

Scott saw appellant and “started cussing and fussing again,” and asked, “What the fuck you going to do now?” Alexander stopped the car. After a few seconds, appellant got out and stood in the doorway of the car, about 10 to 15 feet away from Scott. Alexander saw that Scott had a bag in one hand and, with the other, reached into his pocket. Appellant put his hand into his own pocket, as well.

Alexander testified that he thought at the time that appellant was “bluffing.” Alexander watched as Scott and appellant just “stood there for a few seconds,” then Scott “took off running.” After a second, appellant closed the car door and ran after Scott. Scott turned into an alley behind a building and appellant followed him. After “a second or two,” appellant returned from the alley and haled Alexander for a ride. Saying nothing, appellant got back into the front passenger seat.

Alexander then drove appellant home. Natisha Brown is the woman who was with Scott on the night of the stabbing. She testified that, as she and Scott ⁸³ were “walking around” that night, Scott stopped at the hack stand to talk to a group of men who were standing there. She heard Scott say “what’s up” in a “loud and aggressive” manner, and, when he rejoined her, he was “mad” and “fussing.” Brown and Scott resumed walking together when, at the corner of Fayette and Catherine Streets, a car pulled up and a “young man” inside it called, “what’s up” to Scott.

Scott responded, “what’s up,” and the young man, whom she could not identify, got out of the car and put his hand in his pocket. Scott took off running and the young man “ran behind him.” A few seconds later, Brown saw the young man emerge from the alley and run back to the car. Scott was stabbed while in the alley. Brown did not witness the stabbing, but soon after the young man left the alley, she heard screams coming from Scott’s house, nearby.

She ran to Scott’s house and saw him there, bleeding from his side. Scott’s sister and mother, Fredericke Scott, were home at the time. Ms. Scott testified that her son said he was stabbed. He was bleeding profusely from his wounds and spitting up blood.

The paramedics were called, and Scott was taken by ambulance to the Shock Trauma Unit of the University Maryland Hospital. Ms. Scott also testified, over defense objection that the statement was not an “excited utterance,” that, almost an hour after her son arrived at the hospital, her husband asked Scott “who did this to [you].” To this, Scott replied that the assailant “had braids in his hair and he had funny eyes,” and a “medium skin tone.” We shall say more about this testimony, infra. Scott died of his wounds on April 18, 2002. The autopsy disclosed that the cause of death was multiple stab wounds, which were inflicted by a double-edged blade.

Detective Ritz testified about the homicide investigation and his interrogation of appellant at the police station. The audiotape of appellant’s post -Miranda warned statement was played for the jury, and the transcript of it was admitted into ⁸⁴ evidence. The transcript was sent to the jury room for the jury’s use during deliberations. The jury convicted appellant of first degree murder, wearing and carrying a concealed weapon, and carrying a deadly weapon with intent to injure.

He was sentenced to life imprisonment on the murder conviction and to a consecutive three years’ imprisonment on the latter of the two weapons convictions. On appeal, appellant challenges the admissibility of his post- Miranda warned statement to Detective Ritz and Ms. Scott’s testimony concerning the victim’s description of his assailant. DISCUSSION I. Appellant’s first complaint rests upon Seibert . He urges that the motions court erred when it declined to suppress his post -Miranda warned statement, which expanded upon the pre-warned statement he made at the end of the first stage of the interrogation.

The State responds that the motions court acted correctly, because the facts of the present case distinguish it from the rule of Seibert . As we shall discuss, appellant has the better part of the argument. A. We note at the outset the standard by which we review this issue. We rely solely on the record developed at the suppression hearing.

Alston v. State, 159 Md.App. 253, 261 , 858 A.2d 1100 (2004). “[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion,” and we reverse a court’s factual findings only when they are clearly erroneous. State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003). Although we extend great deference to the motion court’s findings of fact, determinations regarding witness credibility, and weighing of the evidence, we make our own independent constitutional appraisal of the law as it applies to the ⁸⁵ facts of the case. Alston, 159 Md.App. at 261-62 , 858 A.2d 1100 .

B. The Supreme Court’s decision in Seibert is best considered in light of another decision of the Court that predates Seibert by nearly two decades, Oregon v. Elstad, 470 U.S. 298 , 105 S.Ct. 1285 , 84 L.Ed.2d 222 (1985). We therefore begin our discussion with a review of that decision. In Elstad , the Court considered “whether an initial failure of law enforcement officers to administer the warnings required by Miranda [], without more, ‘taints’ subsequent admissions made after a suspect has been fully advised of and has waived his Miranda rights.” Id. at 300, 105 S.Ct. 1285 . In that case, Michael James Elstad was arrested at his parents’ home for burglary.

While Elstad was still in his parents’ living room and one officer was explaining to Elstad’s mother that a warrant had been issued for his arrest, a second officer informed Elstad that he thought Elstad was involved in the burglary. To this statement Elstad responded, “Yes, I was there.” Id. at 301 , 105 S.Ct. 1285 . Evidently, the officer who put this question to Elstad was unsure that he was in custody at the time. Id. at 315-16 , 105 S.Ct. 1285 .

Elstad was taken to the Sheriff’s headquarters and, approximately one hour later, was informed of his Miranda rights. After responding that he understood his rights, Elstad gave a full confession to his involvement in the burglary. Elstad sought to have suppressed the statement he made at his home, as well as his post -Miranda confession. His argument for suppression of the post-warned statement was that his unwarned statement had “let the cat out of the bag” and thereby “tainted the subsequent confession as ‘fruit of the poisonous tree.’ ” Id. at 302, 105 S.Ct. 1285 .

The motions court suppressed Elstad’s first statement, but ruled that the post -Miranda statement was admissible because it was “given freely, voluntarily and knowingly by [Elstad] after he had waived his right to remain silent and ⁸⁶ have counsel present....” Id. The Oregon Court of Appeals reversed the motions court, agreeing with Elstad that “the ‘cat was sufficiently out of the bag to exert a coercive impact on [his] later admissions.’ ” Id. at 303 , 105 S.Ct. 1285 (citation omitted). The Supreme Court reversed the Oregon Court of Appeals. Id. at 300 , 105 S.Ct. at 1285 .

Justice O’Connor, writing for the majority, declared it “an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect’s ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period.” Id. at 309, 105 S.Ct. at 1285 . Justice O’Con-nor pointed out that, although “Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.” Id. Absent coercive or improper actions on the part of the officers performing the interrogation, “a careful and thorough administration of Miranda warnings serves to cure the condition that rendered the unwarned statement inadmissible.” Id. at 310-11, 105 S.Ct. 1285 . The Elstad Court noted that the fruits doctrine, applied in such cases as Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963), and Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), was developed in the context of the Fourth Amendment exclusionary rule, where the objective is to deter unreasonable searches, no matter how probative their fruits.

The objective of the Fifth Amendment, by contrast, is to bar use of compelled statements. Miranda , moreover, adopted an exclusionary rule that “sweeps more broadly” than does the Fifth Amendment, by establishing an irrebuttable presumption that unwarned statements obtained through custodial interrogation are compelled. Elstad, 470 U.S. at 305-07 , 105 S.Ct. 1285 . Violation of Miranda’s safeguards, the Elstad Court declared, in and of itself does not create a coercive atmosphere that automatically ⁸⁷ renders involuntary any subsequent, properly warned statement.

The relevant inquiry should be “whether, in fact, the second statement was also voluntarily made[,]” considering “the surrounding circumstances and the entire course of police conduct with respect to the suspect....” Id. at 318 , 105 S.Ct. 1285 . The Court held that Elstad’s second confession was voluntary and that it complied with Miranda ; consequently, it was admissible. Id. Elstad , it must be remembered, dealt only with