Costley v. State

PAUL E. ALPERT, Judge (ret., specially assigned). A jury in the Circuit Court for Carroll County (Michael M. Galloway, J.) convicted Leon Costley, Jr., appellant, of the first degree murder of Helga Nicholls, his former mother-in-law, and of wearing and carrying a weapon openly with intent to injure. Judge Galloway sentenced appellant to a life term of incarceration without the possibility of parole for the murder conviction and to a concurrent term of three years incarceration for the weapon offense. Appellant presents four questions on appeal: ⁹⁷ I. Did the suppression court err in denying his motion to suppress statements he made to the police?

II

Did the trial court abuse discretion in refusing to ask the jury questions requested on voir dire?

III

Did the trial court err in admitting the autopsy report and Dr. Fowler’s testimony about the contents of the report in violation of the holding of Crawford v. Washington?

IV

Did the trial court err in refusing to instruct the jury on second degree depraved heart murder and involuntary manslaughter? We shall affirm. FACTS Motion To Suppress Prior to trial, appellant filed a motion to suppress statements he made to State Police Corporals Bryan Pearre and Christina Becker. The motion was heard and denied by the Honorable Luke K. Burns, Jr. State Police Corporal Bryan Pearre testified that at approximately 11:55 a.m. on August 14, 2002, he transported appellant from 1647 Old Manchester Road to the State Police Barracks in Westminster.

Appellant was under arrest at the time. Cpl. Pearre secured appellant in the front seat of the police car, but did not advise appellant of his Miranda rights because he did not intend to question him about the crime. While stopped at a traffic light, Cpl.

Pearre retrieved a Maryland State Police Detention Log, on which personal information, such as name, case number, address, social security number, was to be recorded. Cpl. Pearce recounted: I asked Mr. Costley what his social security number was and he was — he was sitting in the passenger seat slumped over basically lookin’ out the window over to the right-hand side. He didn’t acknowledge anything, so at that point, I nudged him on the shoulder a little bit and asked him what his social security number was and his comment was, “You ⁹⁸ have my wallet, don’t you?” And my — my exact words back to him was, ‘Yes, but why don’t you make this easier on both of us and just give me the information I need?” Mr. Costley responded by, “I’m not telling you shit.” I then responded with, “That’s good, I wouldn’t cooperate either if I was — bein’ that you have the upper hand here.” Mr. Costly then said, ‘You have the upper hand here, not me.” And I made the comment, ‘You’re right about that.” At that point the suspect stated, “Why don’t you hit me?” My — my response was, “What?” as in asking him a question, what.

At that point he said, ‘You heard me, why don’t you hit me. That’s all you people want to do anyway, hit the poor little black man.” He took a short pause and then stated, “I’m glad that bitch is dead.” Cpl. Pearre did not make any more comments and ceased efforts to fill out the form at that time. He denied that he sought any information other than that needed for the form.

He also denied that appellant had asked for an attorney. Corporal Christina Becker testified that at around 1:55 p.m., she went to the holding cell area where appellant was incarcerated, introduced herself, and told appellant she was going to take him to an interview room “where we could talk.” Appellant did not object. Cpl. Becker advised appellant of his Miranda rights by reading each right to him and asking if he understood them and whether he had any questions.

Appellant said that he understood them and did not ask any questions. Cpl. Becker asked if he agreed to speak with her, and appellant said he did. Becker then asked him to sign the form, which he did.

According to Cpl. Becker, appellant was initially “somewhat agitated.” He did not ask for medical treatment or make any other requests during the interview. She did not make any promises to appellant, nor did she threaten him or offer him inducements to talk to her. At approximately 4:00 p.m., appellant asked to speak with an attorney.

Cpl. Becker did not ask him any more questions and returned him to his holding cell. ⁹⁹ On cross-examination, Cpl. Becker agreed that it was possible that appellant “could have told not only Corporal Pearre, but some other troopers who had detained him,” that “he wanted to speak to an attorney.” Appellant testified that when Cpl. Pearre began talking to him, he did not say anything.

Appellant confirmed that Cpl. Pearre asked him his social security number, and that he had responded along the lines that Cpl. Pearre had indicated. According to appellant, he told Cpl.

Pearre he was not going to talk to him and that he wanted to speak to a lawyer, but Cpl. Pearre continued to ask questions. Appellant also testified that he told the officer who took him to a cell that he wanted an attorney. Appellant further testified that Cpl.

Becker read him his rights, slid the paper across the desk, and told him to sign it. Appellant said that he did not pay attention when she read it, but denied that she read his rights aloud line by line, and asked him to sign or initial each. He said he signed the form because he thought it meant he would get an attorney. He explained that he “thought you needed an attorney before they interviewed you.” He denied that he had made the comments Cpl.

Pearre ascribed to him. Defense counsel argued that Cpl. Pearre had “bait[ed] [appellant] into a conversation,” and asked that the comments appellant made to him be suppressed. He further asked that the statements be suppressed “from that point forward, when he’s already made that initial request for counsel at the station and in the car.” The suppression court denied the motion.

After reviewing the evidence, it commented: There is certainly a question of credibility here which we feel should be resolved in favor of Cpl. Becker. Outside the testimony presented above the only other evidence is the short form 180 which stated: “I have read or have had read to me this explanation of my rights. I fully understand questions without consulting a lawyer or having a lawyer present at this time.

My decision to answer questions is ¹⁰⁰ entirely free and voluntary and I have not been promised anything nor have I been threatened or intimidated in any manner.” This form is then signed at the bottom by the defendant. Defendant then proceeds to answer Cpl. Becker’s questions for the next two hours before requesting an attorney. At this time the interview ceased.

The Court can find no error in the procedure followed by Cpl. Becker, and thus finds no merit in Defendant’s motion to suppress the statements made to the officer. It should be noted at the hearing that Cpl. Becker never asked Cpl.

Pearre or any other officer if Defendant requested an attorney prior to her interaction with him. Given Cpl. Becker’s administration of Miranda prior to her questioning, the Court finds little significance in this fact. Trial Kristina Costley (Kristy) 1 testified that she was married to appellant in 1995, and that they separated in September of 2000 and divorced in June of 2002.

Appellant had adopted Kristy’s daughter, Brittany Costley, shortly after the marriage, and Kristy and appellant had a son, Tyler Costley, together. In August 2002, appellant had supervised visitation with the children, and had not had a visit with them since November of 2001. According to Kristy, appellant resented her mother, Helga Nicholls. She said appellant thought Ms. Nicholls was controlling her, that she was causing the separation between Kristy and him, and that she was keeping the children from him.

She said that appellant felt that as a result of the divorce he lost his house, his children, his car, and her. At around 7:50 on the morning of August 14, 2002, Kristy took her children to the Nicholls home at 1647 Old Manchester Road in Westminster so Ms. Nicholls could watch them while Kristy was at work. Appellant knew that Ms. Nicholls ¹⁰¹ watched the children because she had done so while he and Kristy were married. Although the home was “in normal array,” there were tools in the kitchen because Mr. Nicholls was remodeling the bathroom.

On that same morning, appellant went to a Westminster car dealership and took a truck for a test drive. He headed off to a local Target store where, at 10:20 a.m., he bought a chefs knife and a pack of gum. At trial, the sales clerk from Target who had sold the knife identified appellant in photographs made from a store videotape of the transaction. When shown empty packaging the police had found in the truck appellant had taken for a test drive, the clerk agreed it looked like the package appellant had bought.

The clerk confirmed that when appellant purchased the knife, the packaging was sealed. Brittany Costley, who was twelve years old at the time of the incident, testified that at approximately 10:30 a.m. she was in the living room watching television, and “was halfway asleep” in a chair. She heard Ms. Nicholls scream. She saw appellant enter the house through the kitchen door and, without saying anything, approach Ms. Nicholls quickly and choke her.

Ms. Nicholls tried to push appellant off but was unable to do so. Ms. Nicholls started to break away, but fell. Brittany went to the telephone and dialed 9-1-1. As Brittany was dialing, appellant pulled a knife from his pocket and stabbed Ms. Nicholls as she lay on the ground.

Brittany dropped the phone and ran out the front door to a neighbor’s house. As she ran, appellant saw her and called to her to wait. According to Brittany, Ms. Nicholls did nothing to defend herself. When Brittany arrived at her neighbor’s house, she was crying, “hollering and screaming,” and holding herself.

She told her neighbor, Barbara Reed, “My grandmother’s been stabbed,” and “She’s going to die, My dad did it.” She asked Ms. Reed to go into the Nicholls house and get Tyler, who was upstairs. Ms. Reed called 9-1-1. Tyler Costley, who was six days shy of his sixth birthday at the time of the incident, testified that he was halfway up the ¹⁰² stairs to the bathroom when he heard his grandmother scream. He went downstairs and saw appellant stabbing his grandmother with a big knife.

When appellant saw Tyler, he told him to go upstairs. Tyler complied. Appellant then went upstairs to Mr. Nicholls’ bedroom. He had two knives when he came upstairs.

According to Tyler, appellant gave him candy, “my grandma’s money,” and a chain from around his neck. Appellant tried to lock the door to Mr. Nicholls’ bedroom with one knife and hid the other knife under Ms. Nicholls’ bed. On cross-examination, Tyler testified that, when appellant came to the house, he wanted to take him to his house. He said that there was an argument, and that Ms. Nicholls “started screaming.” He said that appellant tripped her.

The State played 9-1-1 tapes between a State Police Operator and appellant and a crying Tyler while appellant was in the Nicholls home. Tyler told the operator, “My daddy shot and killed my grandma” “with a knife.” Appellant denied that anyone in the house was hurt. Appellant told the operator, “I lost everything. I lost my house, I lost my car,” “I lost my job, I don’t have anything,” “all because of her and her mother.” He later said, “I lost everything because of my mother-in-law.

She got involved and put up my house which was something that I didn’t do.” First Sergeant Keith Runk, the commander of the State Police SWAT team, arrived at the Nicholls home around 11:45 or 11:50 a.m. that day for a hostage rescue. As he took his team upstairs, he heard a child yelling, “Help me. Help me,” from a bedroom and saw appellant coming to the top of the stairs. The officer told appellant to lie on the floor, and, when appellant complied, placed handcuffs on him.

Another officer took Tyler from the bedroom and handed him to another officer, who took him outside the house. First Sergeant Mark Gibbons entered the kitchen to attempt to rescue Ms. Nicholls, but found that she was not breathing, had no pulse, and had “sustained injuries that were not compatible with life.” Police officers collecting evidence ¹⁰³ found a hammer under Ms. Nicholls’ body, but no other tools in the area. Two days after the murder, Kristy and Robert Nicholls were permitted to return to the Nicholls home. When they went into Mr. Nicholls’ bedroom, Kristy “happened to look in his closet” and saw a shirt with blood all over it bundled up with a washcloth with blood all over it.

She had not seen the shirt at her parents’ house before. At trial, Kristy identified photographs of appellant wearing the shirt. In addition, Kristy found a Target receipt for a butcher knife and a pack of gum purchased the morning of the murder; it was crumpled up in the downstairs hallway. She turned the receipt over to the State Police.

Robert Nicholls testified that when he returned to the house, several items were missing, including a hammer and a wooden-handled knife, a shirt and tennis shoes. He identified the shirt that appellant was wearing when he was arrested as being the shirt missing from his house. Michael Forame, a former co-worker of appellant, testified that in November or December of 2001, he had a conversation with appellant in which appellant told him about “his wife and his children and losing his house and his car and everything and that he would stab his mother-in-law to death if it was the last breath he would ever draw.” After his arrest, appellant was taken to the State Police Barracks in Westminster, where Cpl. Becker spoke to him.

The officer who completed the medical intake form noted bruising around the wrist and right and left arm, and the back shoulder, but no nicks, cuts or marks on his hand. After appellant waived his right to remain silent and his right to an attorney, he told Becker that he had no permanent address, but had been living at the Boston Inn Motel since February of 2002. He said he was unemployed because of the stress in his personal life. He reported that he married Kristy Costley in June 1995, that they had one child together, Tyler, and that he had adopted Brittany, Kristy’s daughter.

He said that they had separated in September of 2000 and divorced in May 2002, and that all he had gotten was $4,700 in ¹⁰⁴ cash, which represented the equity from a town home he and Kristy had bought. He said that he had lost his car and a motorcycle in the settlement. Appellant also told Becker the following. He had initially shared custody of his children, but, in November 2001 “there were some issues with Court-ordered visitation” and he had not seen them since.

He saw two causes for his divorce: money problems because Kristy controlled the money and was tunneling off money for her mother to hold “in anticipation of her leaving him,” and “the constant interference of Kristy’s parents, Bob and Helga Nicholls, into their marriage.” On the morning of the 14th, at approximately 9:45, he had gone to a car dealership and test driven a Chevy Silverado pickup truck, but he did not remember where he had driven the vehicle. He had entered the Nicholls house through the unlocked kitchen door, and did not see his children at first. He did not remember what had happened after that. He gave Tyler money, approximately $900, which was the remainder of his divorce settlement.

Cpl. Becker testified that appellant said he did not remember what happened, but then said he wished it had never happened. She said that appellant “never offered any explanation as to why he went there that day or any kind of argument or altercation.” She reported that he made statements to the effect of “he should just be taken to jail,” and “should be given the death penalty.” Additional facts will be set forth as necessary in our resolution of the questions presented. I. Motion To Suppress Appellant contends that the suppression court erred in denying the motion to suppress the statements he made to Corporal Becker at the State Police barracks.

He argues that his comment, “I’m not telling you shit,” made to Cpl. Pearre while the corporal was driving him to the barracks, was an invocation of his right to remain silent which Cpl. Becker failed to “scrupulously honor.” Appellant also asserts that his ¹⁰⁵ statement to Cpl. Becker should be suppressed because the State did not rebut his assertion that he requested counsel before the interview.

The State counters that appellant did not make clear “his intention to remain silent in the face of police questioning” because when he told Cpl. Pearre “I’m not telling you shit,” he was not being subjected to interrogation. The State also asserts that, even if appellant did invoke his right to remain silent, that invocation did not bar Cpl. Becker from asking appellant whether he would talk to them.

It further asserts that the suppression court “credited the testimony of the police officers that Costley did not invoke his right to counsel prior to Corporal Becker’s interview.” Standard Of Review In considering the circuit court’s denial of a motion to suppress, we are limited to the record of the suppression hearing. See Myers v. State, 395 Md. 261, 274 , 909 A.2d 1048 (2006); State v. Green, 375 Md. 595, 607 , 826 A.2d 486 (2003); State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660 (2002). We consider the evidence in the light most favorable to the prevailing party, in this case, the State. See Green, 375 Md. at 607 , 826 A.2d 486 ; Collins, 367 Md. at 707 , 790 A.2d 660 .

We accept the suppression court’s findings of first-level fact unless clearly erroneous, giving due regard to the court’s opportunity to assess the credibility of witnesses. See Swift v. State, 393 Md. 139, 154 , 899 A.2d 867 (2006); Green, 375 Md. at 607, 826 A.2d 486 . We make our own constitutional appraisal as to whether an action taken was proper by reviewing the law and applying it to the facts of the case. See Ornelas v. United States, 517 U.S. 690, 696-97 , 116 S.Ct. 1657, 1661-62 , 134 L.Ed.2d 911 (1996); Myers, 395 Md. at 274 , 909 A.2d 1048 ; Collins, 367 Md. at 707 , 790 A.2d 660 .

Admissibility Of A Statement The introduction of a confession as evidence against an accused at trial is permitted only after it is determined that ¹⁰⁶ the confession was (1) “voluntary under Maryland nonconstitutional law, (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the -United States Constitution and Article 22 of the Maryland Declaration of Rights, and (3) elicited in conformance with the mandates of Miranda [v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966)].” Winder v. State, 362 Md. 275, 305-06 , 765 A.2d 97 (2001)(inter-nal footnote omitted, alteration in original); Ball v. State, 347 Md. 156, 174 , 699 A.2d 1170 (1997), cert. denied, 522 U.S. 1082 , 118 S.Ct. 866 , 139 L.Ed.2d 763 (1998). In this case, appellant asserts that the police did not comply with the requirements of Miranda . Invocation Of The Right To Remain Silent In Marr v. State, 134 Md.App. 152 , 759 A.2d 327 (2000), cert. denied, 362 Md. 623 , 766 A.2d 147 (2001), this Court opined that Marr did not validly waive his Fifth Amendment right to counsel because the invocation occurred outside the context of custodial interrogation. Marr, 134 Md.App. at 173 , 759 A.2d 327 .

The Court commented that “Miranda’s safeguards were intended to provide protection against the inherent coerciveness of custodial interrogation.” Quoting Rhode Island v. Innis, 446 U.S. at 291, 297, 100 S.Ct. 1682, 1688 , 64 L.Ed.2d 297 the Marr Court commented that “[i]t is clear ... that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken in to custody, but rather where a suspect in custody is subject to interrogation.” (Brackets and ellipses present in Marr). The Marr Court further noted that the principle was applicable to invocation of a suspect’s right to remain silent as well as his or her right to counsel. Id. at 177 , 759 A.2d 327 . The Marr Court also cited McNeil v. Wisconsin, 501 U.S. 171 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991) to the same effect.

Marr, 134 Md.App. at 173-74 , 759 A.2d 327 . The word “interrogation,” as used in Miranda , “refers not only to express questioning, but also to any word or actions on the part of the police (other than those normally ¹⁰⁷ attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446 U.S. at 300 , 100 S.Ct. at 1689 . In the present case, the suppression court concluded that there was nothing in Cpl. Pearre’s conversation with appellant that “should have made the officer aware that his questions would likely elicit an incriminating response.” We agree.

The officer’s comments might have been unwise, but the comments complained of were not questions and did not relate to the crime. Even if we consider appellant’s comments to be an invocation of his right to remain silent, that would not render the statements he made to Cpl. Becker inadmissible. In Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975), the United States Supreme Court held that a defendant’s invocation of his right to remain silent does not preclude later questioning for an indefinite period.

See id., 423 U.S. at 102-03 , 96 S.Ct. at 326 . The Court, noting that the case was not one “where the police failed to honor a decision of a person in custody to cut off questioning, either by refusing to discontinue the interrogation upon request or by persisting in repeated efforts to wear down his resistance and make him change his mind,” concluded that a statement Mosley made two hours after invoking his right to remain silent and after being again advised of his Miranda rights did not violate Miranda. See id., 423 U.S. at 105-06 , 96 S.Ct. at 327 . We applied that principle in Latimer v. State, 49 Md.App. 586 , 433 A.2d 1234 (1981).

There, Latimer had declined to sign a waiver of his Miranda rights at the Hagerstown City Police Department. See id. at 587, 433 A.2d 1234 . Later that day, he was transported to the Maryland House of Correction, where he signed two waivers of his Miranda rights and made several statements that he later sought to suppress. See id. at 588, 433 A.2d 1234 .

The trial court denied his motion to suppress and this Court affirmed Latimer’s conviction. We explained that, ¹⁰⁸ in the situation where the defendant has chosen to remain silent without more, he has not necessarily indicated a belief that he is unable to speak for himself and is in need of an attorney. Instead, he has chosen to remain silent for the present; that choice should not, in our opinion, destroy all lines of communication nor make a prelude by the defendant absolutely necessary before further questioning. Latimer, 49 Md.App. at 588 , 433 A.2d 1234 .

The Court recognized that “Miranda does not create a per se proscription of all further interrogation once the person being interrogated has invoked his desire to remain silent.” See id. at 590 , 433 A.2d 1234 . We discussed Mosley and Latimer in Freeman v. State, 158 Md.App. 402 , 857 A.2d 557 (2004). There, we concluded that the trial court had erred in failing to recognize Freeman’s silence as an invocation of her right to remain silent. Id. at 433 , 857 A.2d 557 .

We further concluded, however, that her invocation of her right to remain silent did not bar another officer from attempting to interrogate her three hours later. We explained: Consistent with Mosley , a reasonable period of time elapsed between appellant’s invocation of her right to silence [ ], and the interrogation conducted by Ruel. Although the locale and the topic were the same, the interrogator was different. Freeman, 158 Md.App. at 440 , 857 A.2d 557 .

In Manno v. State, 96 Md.App. 22 , 623 A.2d 677 , cert. denied, 332 Md. 454 , 632 A.2d 151 (1993), we held that Manno’s telling the Towson State University officer who arrested him that he wished to remain silent did not bar a Baltimore County detective from asking appellant if he wanted to talk to him after the detective readvised him of his Miranda rights 40 minutes later. See id. at 40-41, 623 A.2d 677 . We commented: It is elemental to Fifth Amendment constitutional review that the overriding consideration is whether a statement is the product of the compulsive and coercive effect of deliberate efforts on the part of agents of the State to extract ¹⁰⁹ incriminating information against the will of the target of the investigation. In no sense can the actions of Officer Grumbach be considered the opening volley of a succession of coercive efforts on the part of the police to extract a statement from appellant.

There indeed was no attempt on his part to wear down the will of appellant or to obtain a statement that was the product of intimidation, coercion, deception, or overborne will. Manno, 96 Md.App. at 42 , 623 A.2d 677 . This, of course, is consistent with the rule that a Miranda violation does not preclude a later voluntary confession by a defendant. In Miller v. State, 380 Md. 1 , 843 A.2d 803 (2004), the police, who had been looking for Miller, found him at home.

See id. at 33 , 843 A.2d 803 . They removed him from his apartment into the hallway, but did not arrest or handcuff him. See id. They asked him about where he had been and what he had done that day, and elicited incriminating answers.

See id. Miller later gave a statement at the police station after he had been advised of his Miranda rights. See id. at 34, 843 A.2d 803 . Miller sought to suppress the statements made at his apartment and at the police station.

See id. The trial court suppressed the former, but not the latter statements. See id. The Court of Appeals affirmed.

Citing Oregon v. Elstad, 470 U.S. 298, 309 , 105 S.Ct. 1285, 1293 , 84 L.Ed.2d 222 (1985), the Court commented: The interrogation at the apartment, even if custodial in nature, was not coercive, his responses were largely exculpatory, and they had little, if any, influence on the inculpatory statements made later at the police station. Miller, 380 Md. at 34 , 843 A.2d 803 . Here, Cpl. Becker’s interview of appellant occurred almost two hours after appellant told Cpl.

Pearre that he was not going to tell him anything. The interview was at a different location and by a different officer, and was preceded by Miranda warnings. The comments appellant made to Cpl. Pearre were not so inculpatory that they affected the later interview.

Appellant was not subjected to continued interro ¹¹⁰ gation designed to “wear down his resistance and make him change his mind.” See Mosley, 423 U.S. at 106 , 96 S.Ct. at 327 . Thus, even if appellant’s statement was an invocation of the right to remain silent, that would not preclude Cpl. Becker from asking after a reasonable time whether appellant was then willing to waive his Miranda rights. Request For Counsel The trial court did not specifically find that appellant did not ask for counsel, but commented that, “[g]iven Cpl.

Becker’s administration of Miranda prior to her questioning, the Court finds little significance in this fact.” To the extent that the trial court believed that Cpl. Becker could interview appellant even if he had invoked his right to counsel as long as she advised him of his Miranda rights, the trial court was incorrect. As the United States Supreme Court made clear in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights. We further hold that an accused, such as Edwards, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.

Edwards, 451 U.S. at 484-485 , 101 S.Ct. at 1884-85 . We conclude, however, that appellant did not validly invoke his right to counsel. In Marr , we commented that, even if appellant’s attorney could have invoked his right to counsel for him, we would conclude that “appellant did not validly invoke his Fifth Amendment right to counsel because the invocation by counsel occurred outside of the context of custodial interrogation.” ¹¹¹ See id. at 173 , 759 A.2d 327 . We noted that “Miranda’s safeguards were intended to provide protection against the inherent coerciveness of custodial interrogation.

The ‘inherent compulsion’ that is brought about by the combination of custody and interrogation is crucial for the attachment of Miranda rights.” Id. We quoted McNeil v. Wisconsin, 501 U.S. 171 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991), in which the Court held that McNeil’s request for counsel in a preliminary hearing did not act as an invocation of his Fifth Amendment right to counsel during custodial interrogation: We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation ” — which a preliminary hearing will not always, or even usually, involve. If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against.

The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we mil allow it to be asserted initially outside the context of custodial interrogation, with similar future effect. Marr, 134 Md.App. at 174-75 , 759 A.2d 327 (quoting McNeil, 501 U.S. at 182 n. 3, 111 S.Ct. at 2211 n. 3) (citations omitted and emphasis added in Marr). The facts in Marr are different from those in the present case, in that Marr’s attempted invocation of his right to counsel occurred before he was in custody. See Marr, 134 Md.App. at 178 , 759 A.2d 327 .

We specifically declined to decide whether, “in addition to custody, interrogation must be actual or at least imminent before the right to counsel can be invoked.” See id. Nonetheless, the language of McNeil suggests that custody, absent interrogation, is insufficient. See also Fenner v. State, 381 Md. 1, 9 , 846 A.2d 1020 , cert. denied, 543 U.S. 885, 125 S.Ct. 158 , 160 L.Ed.2d 143 (2004), in ¹¹² which the Court of Appeals noted that, “in order for the Miranda safeguards to take effect, there must first exist ‘custodial interrogation.’ ” Therefore, any request to the officer who placed appellant in a holding cell was ineffective. In addition, the suppression court believed Cpl.

Becker’s testimony that appellant did not make a request for counsel until two hours into her interview with him. Accordingly, the trial court did not err in denying appellant’s motion to suppress. We would, in any event, consider any error to be harmless error. Although appellant acknowledged that he blamed Ms. Nicholls for his divorce and the loss of his home, his family and his car, Kristy Costley had already testified to that, and her testimony was corroborated by appellant’s comments on the 9-1-1 tape.

Appellant did not tell Cpl. Becker of “any kind of argument or altercation,” but any prejudice that might cause was already present because he had not told the State Police Operator of any altercations, and because Brittany had said there was none. Although appellant admitted that he went to the Nicholls home and entered through the kitchen door, Brittany Costley had already testified to that and the police who responded to Brittany’s and Ms. Reed’s 9-1-1 calls found appellant in the home. Brittany testified to seeing appellant choke Ms. Nicholls, and both she and Tyler Costley testified to seeing appellant stab Ms. Nicholls.

Appellant was seen in photographs purchasing a chefs knife at a Target store. Kristy found the shirt appellant was wearing in the photographs, bloody and balled up in Mr. Nicholls’ closet. Given the limited nature of appellant’s admissions, and the overwhelming evidence of his guilt, we are persuaded beyond a reasonable doubt that his statements to Cpl. Becker did not contribute to the jury’s verdict.

See Dorsey v. State, 276 Md. 638, 659 , 350 A.2d 665 (1976); Freeman, 158 Md.App. at 434 , 857 A.2d 557 .

II

Voir Dire ■ [14] Appellant’s second contention is that the trial court abused its discretion in refusing to ask the jury, on voir dire: ¹¹³ “Has any member of the jury panel ever been divorced? Or has any member of the jury panel ever had ‘in-law’ problems such as where you had difficulty getting along with or had an in-law that caused marital interference or were denied visitation because of a spouse or in-law?” Appellant contends that the question was necessary because the State attempted to establish that the motive for the killing was that appellant believed Mrs. Nieholls interfered in his marriage to Kristy Nieholls and blamed her for their divorce. He argues that “defense counsel sought to determine whether any juror would have been so affected by his or her own relationships with former spouses or in-laws that the juror would not be fair and impartial. The court abused its discretion by failing to ask a specific question to uncover such bias.” The State counters that the question was nothing more than a “ ‘fishing expedition’ designed to gather information for use in peremptory challenges.” Scope Of Voir Dire The scope of voir dire and the form of the questions propounded rests