Facon v. State

⁹ HOLLANDER, Judge. A jury sitting in the Circuit Court for Prince George’s County convicted Steven Fritz Facón, appellant, of two counts each of robbery with a dangerous weapon, first degree assault, and use of a handgun in the commission of a felony. After merging the assault convictions into the armed robbery convictions, the court sentenced appellant to two concurrent terms of twenty-five years’ imprisonment, without parole, for each armed robbery conviction, and concurrent terms of twenty years, the first five years without parole, for each handgun conviction. On appeal, Facón presents a host of issues, including whether a defendant commits an armed robbery if the taking of property occurs after the weapon has been put away.

He also asks whether the facts support a single robbery or two robberies when, in the course of one episode, the robber forcibly takes one item of property in the possession of two employees of a single entity that owned the property. Put another way, that issue concerns the appropriate unit of prosecution. Appellant’s questions, which we have rephrased and reordered, are as follows: I. Did the motion court err in denying appellant’s motion to suppress his oral statement to the police?

II

Was the evidence sufficient to support appellant’s convictions for: 1) armed robbery, when there was no evidence that appellant used force or intimidation in taking cigarettes; 2) two counts of armed robbery when there was only a single taking; 3) first degree assault against Ms. Barton-Smith, when appellant never pointed a handgun at her; and 4) first degree assault, armed robbery, and use of a handgun, when there was no evidence that appellant used a handgun?

III

Did the trial court err in permitting the State to impeach appellant with two prior convictions for armed robbery? ¹⁰ IV. Did the trial court err in overruling appellant’s objection to the State’s closing argument? V. Did the trial court err in imposing a sentence of twenty-five years without parole for each armed robbery conviction, pursuant to Md.Code Ann., Art. 27, § 643B(c)? For the reasons discussed below, we shall affirm appellant’s convictions, but vacate one of the two armed robbery sentences.

FACTUAL SUMMARY A. TRIAL during the early morning hours of August 22,1999, Gadissa Terfa and Audrea Barton-Smith were working at the 7-Eleven store located at 2000 East-West Highway in Hyattsville. At around 1:15 a.m., Terfa was standing directly behind the sales counter next to the cash register, while Barton-Smith was in the back of the store. At that time, a man, later identified as appellant, walked into the store, asked Terfa for the price of a bag of chips, and put the bag on- the counter. Suddenly, the man pulled up his shirt and displayed a small black and silver handgun.

The assailant then demanded that Terfa “open the register.” When Terfa was unable to do so, because he was too nervous, the assailant pulled out a gun and pointed it at Terfa. According to Terfa, the assailant also pointed his handgun at Barton-Smith, who had emerged from the back of the store, and ordered her to open the cash register. She, too, was unable to do so. Appellant then put away the gun, grabbed a pack of cigarettes, and exited the store without paying for the cigarettes.

He left the bag of chips behind. Terfa did not stop appellant from taking the cigarettes because appellant “had a gun.” Upon exiting the store, Terfa saw appellant enter a black car with a District of Columbia license plate. Terfa recorded the car’s tag number, AM 1898, and gave the information to ¹¹ the police. At trial, Terfa could not identify appellant as the robber, but he identified a gun that had been recovered from the vehicle at the scene, indicating that it matched the one used by the robber.

Barton-Smith testified that she was in the back of the store and approached the counter in front when she heard the cash register making noise. At the time, she thought her co-clerk was having a problem with the register. She then “saw the customer pointing a gun and telling Gadissa to open the register.” She added that the assailant “was leaning on the counter with the muzzle of the gun pointing toward us.” Barton-Smith claimed that the man said to both of them: “Open the register or I’ll blow your heads off.” 1 She identified appellant at trial as the assailant. Officer Bernard Barnes responded to the scene following the incident.

He testified that Terfa gave him a piece of paper bearing District of Columbia license tag number AM 1398. That car was linked to appellant by the testimony of Stephanie Young, appellant’s girlfriend of 16 years and the mother of his son. Ms. Young testified that she and appellant were co-owners of a burgundy Mazda 626, although appellant was the primary driver of the car. She said that the vehicle was registered in D.C. and had a license tag number of AM 1398.

According to Ms. Young, appellant told her in late August 1999 to sell the car because he was no longer employed and could not afford the car payments. Accordingly, she arranged to sell the vehicle to her cousin, John Wallace. In the process of doing so, she found a small handgun in the center console of the car. She claimed that she had never seen appellant with a gun.

Wallace confirmed that a loaded gun was in the Mazda and the police took custody of the car. ¹² Corporal Scott McVeigh, an evidence technician with the Prince George’s County Police, testified that a loaded .38 pistol was recovered from the center console of the vehicle. Further, the bag of chips that appellant left in the store was processed for fingerprints. Expert testimony from Elores Clark revealed that' fingerprints recovered from the bag matched those of appellant. In addition, the incident was captured on videotape by the store’s video-recording equipment.

Detective Michael Olds testified as to his interview of appellant and Facon’s waiver of rights. He told the jury that Facón gave an oral statement to police, admitting that he robbed the 7-Eleven on August 22, 1999. Facón claimed that he had smoked a lot of cocaine that day and had also consumed alcohol, but the “motivation for doing the robbery was not to get money for narcotics.” Rather, he needed money to buy gasoline for his car. Appellant was one of the defense witnesses.

He admitted that he went to the 7-Eleven store on the date in question, “with the intent to rob” the store. At the time, he was “high” on crack cocaine and “drunk” from malt liquor, and needed money “to get some ... drugs.” He denied using a handgun, claiming instead that he used a paint gun and pretended that it was a real gun. He also denied pointing the paint gun at either clerk, but acknowledged that he put the paint gun on the counter. Although Facón was a cigarette smoker, he denied any intent to take the cigarettes, and testified that he did not even remember taking the cigarettes “until I seen the film in court.” Further, he testified that he did not know how the handgun got in his car, and maintained that the gun was not his.

On cross-examination, appellant admitted that he pleaded guilty to armed robbery in both 1995 and 1989. B. PRE-TRIAL SUPPRESSION HEARING The court held a two-day motion hearing prior to trial, involving several issues in two cases. We shall include here only the evidence relevant to the motion to suppress appellant’s oral statement to the police, made on September 2,1999. ¹³ After appellant’s car was tied to the incident at the 7-Eleven, a warrant was issued for his arrest. Facón was arrested on the evening of August 31, 1999, in the District of Columbia.

The next day, appellant waived extradition to Prince George’s County, and he was transported to Central Processing on the evening of September 1, 1999, about 24 hours after his arrest. At about 10:00 p.m. on September 1,1999, Corporal Michael Olds and Detective John Craig of the Prince George’s County Police Department placed appellant in an interview room, which measured approximately twelve feet by eight feet. Both officers maintained that, throughout the interview, Facón was coherent, alert, physically fine, and appeared to understand what was said to him. Moreover, he never requested an attorney.

At appellant’s request, the officers did not close the door whenever they left the interview room. But, when appellant was left alone, his hand was cuffed to a ring attached to the wall. As Corporal Olds recalled, appellant never complained that the handcuff was too tight. Corporal Olds testified that, at the outset, he asked appellant if he wanted coffee.

Appellant replied that he did, and was given coffee at 10:08 p.m. At about the same time, appellant asked to make a telephone call, but Corporal Olds responded, “in a little while.” In fact, appellant was not permitted to make a phone call until after 9:00 a.m. the next day. Initially, Detective Craig spoke with appellant alone, from 10:30 p.m. until 11:55 p.m. During the early portion of that segment, Detective Craig gave Facón some cigarettes and discussed general matters, such as appellant’s drug problem, his prior arrests, and the recent death of appellant’s nephew.

They did not talk about the robbery at that point. Moreover, while Detective Craig was speaking with Facón, he did not wear a weapon, nor was Facón handcuffed. Detective Craig testified that he asked appellant if he knew why he was arrested, and appellant indicated that he was arrested on a robbery warrant. In response, Detective Craig ¹⁴ told appellant his car had been used in a robbery.

At that point, the detective pulled out a waiver of rights form, but Facón said he did not “want to sign anything right now.” Detective Craig responded by saying “that’s fíne,” and he put the waiver form away. According to the detective, he then asked Facón, “do you want to discuss this at all right now. [Facón] said, I’ll discuss it but I don’t want to write anything, I don’t want to make a statement.” The detective further testified that the two then “started talking about [Facon’s] drug problem, getting high, he had apparently been in a drug program in prison the first time and how the program had worked for him. That’s basically it.” At about 11:55 p.m., Detective Craig left the interview room to get more coffee for appellant. Facón declined an opportunity to use the bathroom.

Craig returned at 12:22 a.m. (September 2, 1999), and they resumed talking about appellant’s family, his drug problem, and the robbery warrant. Detective Craig claimed that Facón “went into great length as to how he thought he needed to get into a drug program. I told him I can’t get you into a drug program, that’s not my call.” At approximately 2:55 a.m., Detective Craig left the interview room, and returned again at about 3:20 a.m.

At that time, both detectives escorted appellant to the bathroom. Detective Craig and appellant then entered the interview room at 3:25 a.m., and again discussed “the same thing [they] had been talking about all night, which was [appellant’s] family ... he had been using crack, using drugs.... ” At that point, they began “getting into the incident a little bit.” Facón recounted that he was at a crack house and, when he came out, he found that “his car had been stolen.” At 4:25 a.m., Craig left the interview room, and he did not see Facón again until after Facón had given a statement to Olds. At about 4:40 a.m., Corporal Olds entered the interview room, at Detective Craig’s request, so that Facón “could see a new face, talk to somebody else.” Olds remained there until 5:55 a.m. Appellant was briefly removed from the interview ¹⁵ room at 6:10 a.m. for photographing, and he was then returned to the room.

At 6:35 a.m., Olds entered the room and gave appellant coffee, water, and cigarettes. The officer claimed they were “done” talking about Facon’s family, and began to review the evidence against Facón. Olds acknowledged that Facón “was getting tired,” but claimed that appellant then began “to ask about what does the statement entail.” Olds replied, “a statement is a statement.” When Facón answered that he did not want to write anything or sign anything, Olds testified that he “said, well you have to sign a waiver form or we don’t get into the statement. And he agreed to do that.” At 7:08 a.m., appellant agreed to waive his rights and make a statement.

Accordingly, Olds left the room at 7:13 a.m. to obtain a waiver form. When Corporal Olds returned with the form, he began the waiver process. Facon’s statement was completed by 7:45 a.m. With respect to the waiver form, Corporal Olds recalled that he read appellant the Advice of Rights form, and Facón seemed to understand.

At the time, Olds was not wearing a weapon, nor was Facón handcuffed. Appellant signed the form at about 7:14 a.m. on September 2, 1999; he placed his initials next to each right, and put check marks indicating that he understood the particular rights and wanted to make a statement. Upon signing the waiver form, appellant began to cry. Corporal Olds told appellant that, by signing the waiver, it was not an admission of anything.

Rather, it was just an indication that he had cooperated with the police. At Facon’s request, Corporal Olds did not take notes while Facón made his statement. According to Olds, appellant confessed to robbing the 7-Eleven store, claiming that he was high on narcotics at that time. After the interview, Corporal Olds wrote down as much as he could remember of appellant’s oral statement.

In sum, Corporal Olds claimed that he spent a total of two to three hours with appellant. Apart from the delay as to the phone call, Olds asserted that Facón was “treated extremely ¹⁶ well.” Moreover, Corporal Olds never saw appellant sleeping, nor did appellant indicate that he was tired or wanted to rest. In his discussions with Facón, Corporal Olds said he told appellant that he was “making no promises” about a drug treatment program, but said he “would absolutely relay that [appellant] has a bad narcotic habit to the state attorney [sic] ... and that was about the best I could do.” The following testimony on direct examination is also relevant: [PROSECUTOR]: Okay. So you told him that you would communicate that information to the State’s Attorney Office? [CORPORAL OLDS]: Correct. [PROSECUTOR]: And other then [sic] that did you make him any other promises or anything else to'him? [CORPORAL OLDS]: No. On cross-examination, Corporal Olds acknowledged that he told appellant that if Facón was “not responsible for any other robberies,” Olds would “make a recommendation to the State.” On re-direct, the officer explained that he told Facón he “would advise the State that according to [Facón], that he had a serious narcotic problem.” The officer further testified about the last portion of his “waiver notes,” which state: “I’ll make a recommendation to the State.

Advised I could not make any promises and I asked was he clear on that and he agrees and initials.” Referring to the content of the notes, the prosecutor then asked: “And did you say that to him?” Olds replied, “Yes. Absolutely.” At 9:00 a.m., Detective Craig brought appellant a sandwich. Shortly thereafter, appellant was allowed to make a telephone call. Appellant was also taken to the bathroom and provided with more cigarettes.

At about 10:30 a.m., appellant was brought before a commissioner. Corporal Olds conceded that appellant had been held about twenty-four hours in D.C. before arriving in Maryland, and Facón was not taken to a commissioner until approximately twelve hours after his arrival in Maryland. ¹⁷ Both officers were questioned thoroughly about their interrogation of Facón, and both testified that while appellant was in their custody he never asked for an attorney, nor did he indicate that he did not want to speak with them. Moreover, the detectives claimed that appellant remained alert and coherent, did not ask for an opportunity to rest or sleep, nor did they ever see appellant fall asleep. Indeed, Detective Craig believed that appellant “was up the whole time.... ” Facón was also provided with food, drinks, cigarettes, and bathroom opportunities.

Moreover, both officers denied making any promises, threats, or offers to induce Facón to make a statement. Generally, only one officer was in the interview room at any one time, and neither officer wore his weapon while in the room. At the suppression hearing, appellant recalled his arrest in Washington, D.C. on August 31, 1999, and said he was held there one night. On September 1, 1999, he was awakened at 5:30 a.m. for breakfast, and had been awake since that time when the interrogation began on the night of September 1, 1999.

When the interview began, Facón said he had no idea why he had been arrested, and asked the detectives “why am I here.” Although appellant could not recall the details of his early conversation with Detective Craig, he remembered that he told Detective Craig that he “wanted to see a lawyer, that I didn’t want to give no statement, no written statement at that time.” He could not recall the amount of time that elapsed before he requested an attorney. According to Facón, Corporal Olds repeatedly tried to get him to write a statement. Although appellant “told him I am not writing a statement,” he claimed Corporal Olds ignored what appellant said. Appellant maintained that, prior to signing the waiver form, Officer Olds “promised” him that he would “recommend I get some help in the drug program.... ” Yet appellant acknowledged that Olds’s remarks were “a whole lot of stuff I heard before ... because I know he can’t, wasn’t willing, so he promised that he would talk to the state to recommend I go to a drug program.... ” ¹⁸ Facón, who testified that he went to college, said he had no difficulty understanding English and understood his rights when he signed the waiver form.

Appellant also acknowledged that he checked the box on the waiver form indicating that he had not been promised anything. He explained that, by then, he had been interviewed for eight or nine hours, merely because he had refused to give a statement; had he given a statement, the interview would have ended. Moreover, he was “tired,” wanted to talk to a lawyer, was handcuffed, and claimed that “this was my only way out, my signing this [waiver form].” He denied that he made the comments reflected on Detective Olds’s notes, and claimed he did not tell Detective Olds not to take notes. Moreover, despite signing the waiver, appellant testified: “I never made a statement.” Thereafter, the court denied the motion to suppress.

In its ruling, the court recognized that the matter “centers” on the credibility of the two detectives and appellant. The court found that appellant was handcuffed for a portion of the time that he was in the interview room, and that he also “indicated he wanted to get into a drug program.... ” Moreover, the court noted that “it is undisputed that Detective Olds ... said that he would tell the State’s Attorney that the defendant had a drug habit.” But, the court found that the statement by Olds that he would “tell the State’s Attorney’s Office [Facón] had a drug problem is not the promise direct or indirect that is referenced ... in the Hillard case.” As to Facon’s alleged request for an attorney, the court expressly credited the testimony of the police. From these factual conclusions, the court was satisfied that appellant “knowingly and voluntarily and intelligently” gave a statement to police. At the same time, the court acknowledged that, ultimately, the issue of the voluntariness of the statement would be a question for the jury to resolve. 2 We shall include additional facts in our discussion. ¹⁹ DISCUSSION I. Appellant contends that the court erred, in denying his motion to suppress the custodial oral statement.

He argues that, under the totality of the circumstances, the statement was not made voluntarily. Facón makes no claim that the police failed to comply with the dictates of Miranda. Instead, he points to improper police “tactics,” including the length and circumstances of the interrogation, which was conducted throughout the night and without giving Facón any opportunity to sleep; the delay in his presentment to a commissioner; the “tag-team” approach of the two detectives; and his reliance on inducements by Corporal Olds, including that Olds would recommend to the State’s Attorney that appellant receive drug treatment. Facón adds that it is clear that, at the time of the interrogation, he was distraught.

Further, he claims he was induced because the police told him it would be helpful to him if he cooperated and waived his rights; a waiver is not an admission; and, “in return for the waiver and oral statement,” Corporal Olds promised to talk to the State’s Attorney about “getting [appellant] help for his drug problem.” Facón also asserts that, in reliance on these inducements, he “[immediately executed the waiver of rights and gave his statement.” When reviewing the denial of a motion to suppress, the record at the suppression hearing is the exclusive source of facts for our review. Lee v. State, 311 Md. 642, 648 , 537 A.2d 235 (1988); Aiken v. State, 101 Md.App. 557, 563 , 647 A.2d 1229 (1994), cert. denied, 337 Md. 89 , 651 A.2d 854 (1995). We extend great deference to the fact finding of the suppression judge and accept the facts as found, unless clearly ²⁰ erroneous. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990).

In addition, we review the evidence in the light most favorable to the State as the prevailing party. Riddick, 319 Md. at 183 , 571 A.2d 1239 . An issue as to the voluntariness of a statement is a mixed question of law and fact. Baynor v. State, 355 Md. 726 , 729 n. 1, 736 A.2d 325 (1999); Hof v. State, 337 Md. 581, 605 , 655 A.2d 370 (1995).

Therefore, we conduct a de novo review of the trial court’s resolution of the voluntariness issue, based on the record from the suppression hearing. Winder v. State, 362 Md. 275, 310-11 , 765 A.2d 97 (2001); Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000). After giving due regard to the suppression court’s findings of fact, we make our own independent, constitutional appraisal by reviewing the law and applying it to the facts of the case. McMillian v. State, 325 Md. 272, 281-282 , 600 A.2d 430 (1992).

When, as here, the prosecution seeks to introduce an admission given by a defendant while in custody, the State must, upon proper challenge, establish by a preponderance of the evidence that the statement was obtained in conformance with the dictates of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). See Hoey v. State, 311 Md. 473, 480 , 536 A.2d 622 (1988). The State also bears the burden of establishing that the incriminating statement was made voluntarily, under Maryland nonconstitutional law, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and Article 22 of the Maryland Declaration of Rights. See Ball v. State, 347 Md. 156, 173-74 , 699 A.2d 1170 (1997), cert. denied, 522 U.S. 1082 , 118 S.Ct. 866 , 139 L.Ed.2d 763 (1998); Hof, 337 Md. at 597-98 , 655 A.2d 370 ; Hoey, 311 Md. at 480 , 536 A.2d 622 .

Under Maryland nonconstitutional law, a custodial statement is inadmissible unless it is “shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.” Hillard v. State, 286 Md. 145, 150 , 406 A.2d 415 (1979). Coercion may be ²¹ physical or psychological. See State v. Kidd, 281 Md. 32, 36 , 375 A.2d 1105 (1977). A confession is voluntary if it is “freely and voluntarily made at a time when [the defendant] knew and understood what he was saying.’ ” Hoey, 311 Md. at 481 , 536 A.2d 622 (citation omitted).

Conversely, “a confession is involuntary if it is induced by force, undue influence, improper means, or threats.” Id. at 483 , 536 A.2d 622 . Moreover, the voluntariness of a statement depends on “the totality of all the attendant circumstances.” Burch v. State, 346 Md. 253, 266 , 696 A.2d 443 , cert. denied, 522 U.S. 1001, 118 S.Ct. 571 , 139 L.Ed.2d 410 (1997); see Winder, 362 Md. at 307 , 765 A.2d 97 ; Marr v. State, 134 Md.App. 152, 164 , 759 A.2d 327 (2000). The totality analysis encompasses several factors, including the defendant’s age and education; the defendant’s physical condition and mental capacity; the length and location of the interrogation; the persons present at the interrogation; the use of physical or psychological intimidation or mistreatment of the suspect; whether the defendant was given Miranda warnings; and the use of force, undue influence, or improper promises by the police to induce the statement. Hof, 337 Md. at 596-97 , 655 A.2d 370 ; West v. State, 124 Md.App. 147, 157 , 720 A.2d 1253 (1998), cert. denied, 353 Md. 270 , 725 A.2d 1068 (1999). “Generally, no one factor is dispositive.” Reynolds v. State, 327 Md. 494, 503 , 610 A.2d 782 (1992), cert. denied, 506 U.S. 1054 , 113 S.Ct. 981 , 122 L.Ed.2d 134 (1993).

In determining whether a confession is voluntary under the federal Constitution and the Maryland Declaration of Rights, Colorado v. Connelly, 479 U.S. 157 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986), provides guidance. There, 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, “[a]bsent 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).

Moreover, the Court reasoned that a contrary rule would ²² 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 . With regard to the claim of improper inducement, Facón focuses primarily on Olds’s representation that he would inform the State’s Attorney that appellant had a serious narcotic habit and needed drug treatment. He also suggests that the police led him to believe a statement would be helpful, because it would show his cooperation. In Winder v. State, 362 Md. 275, 305 , 765 A.2d 97 (2001), the Court said: While we permit the police to make appeals to the inner conscience of a suspect and use some amount of deception in an effort to obtain a suspect’s confession ... when the police cross over the line and coerce confession by using improper threats, promises, inducements, or psychological pressures, they risk loss of the fruits of their efforts.

The defendant in Winder had been sentenced to death following convictions on three counts of first degree murder. One issue on appeal concerned the defendant’s claim that his confession was involuntary because it was obtained at the end of a twelve-hour interrogation conducted by four members of the State police, and “was the product of improper threats and promises made by the police....” Id. at 306 , 765 A.2d 97 . The Court agreed. Id.

In analyzing the defendant’s contentions in Winder , the Court “gleaned” a two-part test from Hillard as to inducement. Id. at 309, 765 A.2d 97 . The Court stated that a confession is involuntary, and thus inadmissible, if: 1) a police officer ... promises or implies to a suspect that he or she will be given special consideration from a prosecuting authority or some other form of assistance in exchange for the suspect’s confession, and ²³ 2) the suspect makes a confession in apparent reliance on the police officer’s statement. Id.

The first prong of the Hillard test is an objective one. Id. at 311, 765 A.2d 97 . It requires a determination of whether the police made a threat, promise, or inducement. Id.

But, “a suspect’s subjective belief that he or she will be advantaged ... by confessing will not render the confession involuntary. ...” Id. Moreover, “[a] mere exhortation to tell the truth is not enough to make a statement involuntary.” Reynolds, 327 Md. at 507 , 610 A.2d 782 . Similarly, in Ball, 347 Md. at 176 , 699 A.2d 1170 , the officer’s statement to the suspect, to the effect that it would be helpful if he told the story, did not render the incriminating statement involuntary. As to the second prong, the Winder Court observed that, without reliance on the interrogator’s comments, there is no inducement.

Winder, 362 Md. at 309-10 , 765 A.2d 97 . Thus, the Court explained that the “second prong of the Hillard test triggers a causation analysis to determine whether there was a nexus between the promise or inducement and the accused’s confession.” Id. at 311, 765 A.2d 97 . Applying that test to the facts and circumstances before it, the Court concluded that the defendant’s confession in Winder had been improperly induced by the police. The improper inducements consume several pages of text in the Court’s opinion, and include the following statement by the police, among many: We’re not interested in sending you to jail for the rest of your life....

We think the person who committed these [three murders] needs help. I think you need help. The only way we can get you that help is for you to let us know what happened. We can let the State’s Attorney’s office know hey, Eugene’s told us what happened, but I think Eugene needs some help.

Winder, 362 Md. at 287 , 765 A.2d 97 . Clearly, the statements of the police in Winder , both in quality and quantity, do not resemble the alleged inducements here. ²⁴ Hillard, 286 Md. at 153 , 406 A.2d 415 , on which the Winder Court relied, is also instructive as to the issue of improper inducement. Hillard claimed that a detective induced him to make an incriminating statement by promising that he would be “cut loose” if his statement was corroborated. The police officer in Hillard said to the defendant: [I]f you are telling me the truth about your involvement in the occurrence, I will go to bat for you to the extent that I will tell the State’s Attorney’s office and the Court, number one, that you have cooperated, number two, you have told me the truth, and number three, I believe you were not knowledgeable as far as the murder was concerned.

The Court of Appeals reversed Hillard’s conviction, finding that the police offered to intercede with the court and prosecutor in exchange for the defendant’s confession. It also concluded that the State failed to establish that Hillard’s admissions were not the product of improper promises made by the police. We are also guided by Boyer v. State, 102 Md.App. 648 , 651 A.2d 403 (1995). There, the police officer acknowledged that he told the defendant that, “after we are given a statement ... we talk with the State’s Attorney just to let them know what we have done, touch base with them and see how they feel about an upcoming case.” This Court upheld the denial of Boyer’s suppression motion, finding that the police officer’s remark did not constitute an improper inducement.

The Court said: Officer Mills ... did not say that appellant would receive a lesser penalty if he talked, and he did not represent that it would be easier on him if he confessed. He denied telling appellant that he would help him, or that he would get him a better deal with the State’s Attorney if he talked. What Officer Mills did indicate to appellant was that he would inform the prosecutor that appellant had given a statement and was cooperative. Assuming that appellant concluded that the State would be favorably impressed upon receiving such advice, which is a perfectly reasonable assumption, ²⁵ that conversation does not rise to the level of an improper inducement that would invalidate his confession.

Id. at 653-54 , 651 A.2d 403 . In our view, this case is similar to Boyer, 102 Md.App. 648 , 651 A.2d 403 , and Ball, 347 Md. 156 , 699 A.2d 1170 ; the statements do not constitute improper inducements. Even if Corporal Olds volunteered to tell the State’s Attorney that Facón had a serious drug habit, the remarks, when isolated, are somewhat out of context. Facón disclosed his chronic drug problem, which explains the detective’s statement that he would “relay” that information to the State’s Attorney.

Moreover, Olds was unequivocal in his testimony that he told Facón he could not make any promises about drug treatment, and appellant indicated that he understood. Nor did Facón assert at the suppression hearing that he did not understand. Indeed, he said just the opposite. Further, even if Olds told Facón that signing the waiver was not an admission, he was correct.

Facón also failed to satisfy the second prong of Winder , because the evidence did not show that appellant relied on the alleged inducements in making his statement. In other words, the officers’ remarks did not cause appellant to give his statement. Although appellant asserts in his brief that he made his statement “immediately” after the improper inducements, he overlooks his testimony at the suppression hearing, in which Facón expressly denied that he ever made any statement at all. If he made no statement, then the statement could not have been the product of improper inducement.

Further, appellant has not referred us to any portion of his testimony in which he claimed, directly or indirectly, that he relied on promises made by the officers, and our review of the testimony suggests otherwise. Indeed, Facón testified, with apparent skepticism, about Olds’s statement that he would recommend drug treatment. Yet Facón did not mention the other alleged inducements, such as the statement by Olds to the effect that signing the waiver would be construed as cooperation. ²⁶ Rather, Facón explained his decision to sign the waiver by Stating that he did so because he wanted to terminate what had been a lengthy interrogation, and the officers would not quit until he signed it. As he put it, he was in “a no win situation,” and “the only way ... to get out of there” was if he agreed to sign the waiver.

Signing the waiver and giving a statement are not one and the same. It is also noteworthy that Facón conceded that he understood the waiver form, which stated that no promises had been made to him in exchange for his statement. Compare Stokes v. State, 289 Md. 155, 159-60 , 428 A.2d 552 (1980) (concluding that defendant relied on a promise of help by the police because, after hearing the promise, he immediately revealed the location of the narcotics); Ralph v. State, 226 Md. 480 , 174 A.2d 168 (1961) (concluding that defendant did not rely on inducement because eight hours elapsed between inducement and incriminating statement). Our lengthy recitation of the facts adduced at the suppression hearing also demonstrates that the motion court was presented -with conflicting testimony from the police and the defense as to critical matters relevant to the issue of voluntariness, such as invocation of the right to counsel. “Weighing the credibility of witnesses and resolving any conflicts in the evidence are tasks proper for the fact-finder.” Bayne v. State, 98 Md.App. 149, 155 , 632 A.2d 476 (1993); accord Marr v. State, supra, 134 Md.App. at 178 , 759 A.2d 327 ; Hall v. State, 119 Md.App. 377, 393 , 705 A.2d 50 (1998); Hunter v. State, 110 Md.App. 144, 163 , 676 A.2d 968 (1996).

The fact-finder is free to accept or reject parts of a witness’s testimony. Bayne, 98 Md.App. at 155 , 632 A.2d 476 . Here, the court largely credited the testimony of the detectives as to what transpired during the interrogation, as it was entitled to do. Appellant also complains about the duration of the interrogation and the time when it was conducted.

To be sure, the interview was lengthy and was conducted throughout the night. But those factors are not necessarily dispositive as ²⁷ to voluntariness. Indeed, we have recognized that the “sheer passage of time with repeated questioning ... is essential to the majority of [police] interviews.” West, 124 Md.App. at 158-159 , 720 A.2d 1253 . Young v. State, 68 Md.App. 121 , 510 A.2d 599 (1986), a case on which appellant relies, is factually distinguishable.

There, the police interrogated the defendant “almost continuously” for twenty-two and one-half hours by means of a relay team of six officers. Id. at 132 , 510 A.2d 599 . Further, the police delayed the defendant’s presentment, although a judicial officer was available. Then, after the presentment, the police ignored an order of the commissioner to take Young to a detention center.

Instead, they resumed questioning, and at that point Young confessed. Id. at 126-27 , 510 A.2d 599 . We held the confession involuntary, based on the length and method of the interrogation, coupled with police misconduct. Id. at 135 , 510 A.2d 599 .

Unlike in Young , appellant was questioned for eight or nine hours, only two detectives were involved, and the police did not ignore a court order. Marr, 134 Md.App. at 165 , 759 A.2d 327 , is instructive. There, the defendant was held for over thirty-five hours and, in that time, he was questioned for a total of fourteen hours. Nevertheless, we were satisfied that Marr’s confession was not involuntary.

As in this case, the defendant there was provided with food, drink, and cigars, was allowed to use the bathroom, and was not in any apparent discomfort. Thus, we said: “The tactics were not overbearing....” Id. Appellant also challenges voluntariness because the police officers did not take him before a commissioner until twelve and a half hours after his extradition to Maryland, and some thirty-six hours after his arrest in Washington, D.C. That fact alone is not controlling as to voluntariness. See Woods v. State, 315 Md. 591, 613-14 , 556 A.2d 236 (1989).

In 1981, when the legislature enacted Maryland Code (1998 Repl.Vol., 2000 Supp.), Courts & Jud. Proc. Art. (“C.J.”), § 10-912, it abrogated the “per se ” exclusionary rule in ²⁸ connection with a delay in the presentment of an accused to a judicial officer. C.J. § 10-912 provides: Failure to take defendant before judicial officer after arrest.

(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 4 of the Maryland Rules. (b) Effect of failure to comply strictly with Title h 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. Maryland Rule 4-212(e) is also relevant. It states, in pertinent part: The defendant shall be taken before a judicial officer of the District Court [upon arrest] without unnecessary delay and in no event later than 21* hours after arrest [.] (Emphasis added).

Appellant has not referred us to any case indicating, for purposes of C.J. § 10-912 and Rule 4-212(e), that the officers were required to have considered the time that appellant was held in Washington, D.C., in calculating when they had to bring him before a judicial officer. Even assuming that the time that appellant spent in jail in Washington, D.C. counts toward calculating a delay in presentment, the delay of thirty-six and a half horn’s is not per se unreasonable. In Bey v. State, 140 Md.App. 607, 616 , 781 A.2d 952 (2001), we concluded that a delay of twenty-one hours between arrest and presentment to a commissioner was only one factor in deciding voluntariness and admissibility of confession. Writing for the Court, Judge Davis explained: “[T]he fact that the police did not immediately bring appellant before a commissioner because they wanted to question him, does not automatically lead to exclusion.

Rather, we look to the totality of the ²⁹ circumstances to determine if the confession was voluntarily given.” Id. at 622 , 781 A.2d 952 . See also Marr, 134 Md.App. at 165-66 , 759 A.2d 327 (delay of almost thirty-six hours between arrest and presentment to commissioner does not necessarily render confession involuntary; confession held admissible). Under the circumstances presented, we find no error in the suppression court’s ruling.

II

Appellant advances four arguments to support his claim that the evidence was insufficient to support his convictions, which we summarize: 1) Appellant was unable to steal money from the cash register, and the taking of a pack of cigarettes was not a robbery, because by that time the gun had been put away. Consequently, there was no evidence that Facón used force or intimidation to take the cigarettes. 2) Even if there was a robbery, Facón should have been convicted of only one robbery offense, rather than two, because there was only one taking of an item of property, because it belonged to a single business entity. 3) There was insufficient evidence to sustain the armed robbery or first degree assault convictions as to Barton-Smith, because Facón never pointed a gun at her. 4) There was no evidence that a handgun was used, and therefore the evidence was insufficient to sustain Facon’s convictions for first degree assault, armed robbery, and use of a handgun in the commission of a felony. Before we discuss each contention, in turn, we shall set forth the standard of review as to a sufficiency claim. Evidence is sufficient if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979)(emphasis in original); see Briggs v. State, 348 Md. 470, 475 , 704 A.2d 904 (1998); Dawson v. State, 329