Fenner v. State

CATHELL, J. Donald A. Fenner, petitioner, was tried by a jury in the Circuit Court for Frederick County and was convicted of ⁴ distribution of cocaine and conspiracy to distribute cocaine. On May 9, 2002, the trial judge sentenced petitioner to twenty years of incarceration for the distribution of cocaine conviction and a concurrent sentence of twenty years for the conspiracy to distribute cocaine conviction. Petitioner then filed an appeal to the Court of Special Appeals. In an unreported opinion, the Court of Special Appeals affirmed the trial court’s rulings.

Petitioner filed a Petition for a Writ of Certiorari to this Court and on December 11, 2003, we granted the petition. Fenner v. State, 378 Md. 613 , 837 A.2d 925 (2003). In his brief, he presents two questions for our review: “1. Whether inculpatory statements made at a bail review hearing by a defendant who is unrepresented by counsel and who is not given any Miranda [1] advisements are admissible against the defendant at trial. “2.

Whether the trial court’s admission of a redacted version of the statement made at the bail hearing was error where the redaction rendered the statement vague and misleading.” (Footnote added.) We hold that, in the context of petitioner’s bail review hearing, the requirements of Miranda did not apply because, although he was in custody at the time, petitioner cannot be said to have been “interrogated” within the meaning of Miranda. Thus, petitioner’s inculpatory statement at the bail review hearing was properly admissible at trial. We also hold that, because petitioner’s bail review hearing was not a “critical stage” of the pretrial proceedings, i.e., it was not an adversary judicial criminal proceeding, petitioner’s Sixth Amendment right to provided counsel had not yet attached. Therefore, the trial court did not err in allowing into evidence his inculpatory statement, which was made at the bail review hearing when petitioner was unrepresented by counsel. ⁵ We further hold that the redacted version of the inculpatory statement, as it was read to the jury, was not so vague and misleading as to have made its admittance a clear abuse of discretion by the trial court.

It was unquestionably relevant and its probative value was not substantially outweighed by the danger of unfair prejudice. I. Facts On January 9, 2001, officers with the Frederick Police Department arranged to have a confidential informant at the time, Brett Hann, make a controlled purchase of narcotics in a “targeted area,” namely, the John Hanson Apartment Building. After being searched to make sure that he did not have any controlled dangerous substances in his possession, Hann was fitted with a body wire for the purpose of recording and informing the police of any drug transaction that might occur. The police also gave Hann drug-purchase money and recorded the serial numbers of that money.

Upon entering the “targeted area” at approximately 10:50 p.m., Hann first encountered John Walter King, whom Hann knew from prior drug related matters. King asked Hann what he was looking for and Hann replied that he wanted fifty dollars worth of crack cocaine. King asked Hann to give him the purchase money, but Hann declined to do so because the police had told Hann not to “front the money.” According to Hann, King then motioned for an individual, later identified as petitioner, to come over so that Hann could conduct a “face-to-face” deal. Petitioner did so but initially refused to engage in any kind of transaction until King “vouched for” Hann.

After King vouched for Hann, petitioner asked Hann what he wanted. Hann again stated that he wanted fifty dollars worth of crack cocaine. Hann gave petitioner fifty dollars, and petitioner then gave Hann three pieces of crack cocaine. King took one of the pieces as payment for assisting in the deal.

Following this exchange, Hann said “see you later,” which was a prearranged code phrase used to alert the police that the transaction was complete. Petitioner was arrested at the scene. The officers ⁶ testified, variously, that they observed Harm, King and petitioner via binoculars and/or listened to the transaction via the body wire. On January 10, 2001, the day after petitioner’s arrest, and after his appearance before a District Court commissioner, 2 he appeared before the Honorable Frederick J. Bower of the District Court of Maryland, sitting in Frederick County for a bail review hearing. 3 At this hearing, petitioner was read a ⁷ statement concerning the charges that were pending against him and was told that his preliminary hearing had been scheduled for February 8, 2001.

Judge Bower then asked petitioner the following question: “Is there anything you’d like to tell me about yourself, sir?” In response, the following exchange took place: “[PETITIONER]: For all the yes, activities, I don’t, I don’t know what you’re talking about over there. (Indiscernible.) I ain’t gonna, I mean I gonna (indiscernible.) I can’t get no help on that, you know, they try to give you help. That’s all they going to do is call and put me in jail and (indiscernible). I ain’t playing it with the big boy, know what I’m sayin’.

(Indiscernible), Officer, what else is there for me to do? Whenever I get, whenever I get caught with a little charge they never catch a large amount of drugs on me so, according to the amount of (indiscernible) drug (indiscernible), you know what I’m saying, I mean (indiscernible) so I think like they just (indiscernible). Whenever they catch, they probably catch me with one or two pills, Your Honor, this is just for me to make ends meet, to make money for me to be able to get by. They never caught me that (indiscernible) amount of drugs on me.

You know what I’m sayin’. I mean I’m not denying what happened but when they caught me, they didn’t catch me with nothing but that $50. THE COURT: Sir, you need to have a lawyer just as soon as you can. I’m going to leave the bond (indiscernible) to say I’ll allow 10% to be paid to, for your release, okay, your preliminary hearing is February the 8th. [PETITIONER]: Thank you sir.” Prior to trial, petitioner moved to suppress the statements he made during the bail review hearing in the District Court.

At the suppression hearing before the Honorable John H. Tisdale of the Circuit Court for Frederick County, he argued that the statements should not be admitted at trial because they were made pursuant to a custodial interrogation without ⁸ the benefit of Miranda warnings and at a time when he was not represented by counsel. Judge Tisdale denied petitioner’s motion, finding that although he was in custody when he made the inculpatory statement, he was not being interrogated within the meaning of Miranda. Judge Tisdale then ruled that the portion of petitioner’s statement in which he said, “I’m not denying what happened,” would be admissible, but that the remainder of the statement (that which was discernible) would be excluded because it contained “other crimes” evidence. Petitioner’s counsel and the prosecutor both expressed concern about putting the statement, “I’m not denying what happened,” in context.

Judge Tisdale then convened a chambers conference in an effort to have the parties craft an appropriate stipulation pursuant to his ruling. Eventually, while petitioner reserved his objection to any admission, it was agreed that the statement would be admitted via this stipulation: “The parties agree that the evidence would show that the Defendant, Donald Fenner, appeared before the Honorable Judge Frederick J. Bower of the District Court of Frederick County, Maryland and in response to questioning at his bail hearing made the following statement: ‘I’m not denying what happened.’ ” Petitioner’s first trial ended in a mistrial and he was retried on March 20 and 21, 2002. At retrial, the parties agreed that the suppression court’s prior ruling concerning the statement petitioner made at the bail review hearing was binding. The Honorable G. Edward Dwyer, Jr. of the Circuit Court for Frederick County presided, with a jury, over the trial.

The final piece of evidence the State wanted to adduce at trial was the stipulation crafted pursuant to Judge Tisdale’s ruling on the motion to suppress. The parties agreed that Judge Dwyer should follow Judge Tisdale’s earlier ruling, and, to preserve the issue on appeal, petitioner reaffirmed his objection to that earlier ruling, which Judge Dwyer overruled. The stipulation was thereafter read to the jury. On March 21, 2002, petitioner was found guilty of both the charge of distri ⁹ bution of cocaine and the charge of conspiracy to distribute cocaine.

II

Discussion A. Petitioner’s Fifth Amendment Miranda Claim Petitioner contends that inculpatory statements made by an accused at a bail review hearing where the accused was not given any Miranda advisements should be inadmissible at trial. The United States Supreme Court held in Miranda v. Arizona, supra, that: “the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.” Miranda, 384 U.S. at 444, 86 S.Ct. at 1612. Thus, in order for the Miranda safeguards to take effect, there must first exist “custodial interrogation.” We must therefore examine whether the District Court judge’s questions of petitioner at petitioner’s bail review hearing, at which he made inculpatory statements, constituted a “custodial interrogation.” “Custodial interrogation,” was described in Miranda to “mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom in any significant way.” Id. (emphasis added).

In the case sub judice, it is clear that petitioner was in custody at the time of his bail review hearing. The real point of contention between petitioner and respondent, however, is whether the District Court judge’s question, “Is there anything you’d like to tell me about yourself, sir?,” can be said to constitute an “interrogation” within the meaning of Miranda. In Hughes v. State, 346 Md. 80 , 695 A.2d 132 , cert. denied, 522 U.S. 989 , 118 S.Ct. 459 , 139 L.Ed.2d 393 (1997), we had the opportunity to examine when a question posed to a defendant by a law enforcement officer can be said to consti ¹⁰ tute an “interrogation” in violation of Miranda. In Hughes , we adhered to the standard set forth by the United States Supreme Court in Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980), a standard focusing on whether the law enforcement officer knew or should have known that the questioning was reasonably likely to elicit an incriminating response.

We explained in Hughes that: “Assessment of the likelihood that an otherwise routine question will evoke an incriminating response requires consideration of the totality of the circumstances in each case, with consideration given to the context in which the question is asked. The fact that the answer to a booking question assists the prosecution in proving its case is not determinative of whether a standard booking question, when posed, was likely to elicit an incriminating response. A benign question in one case may amount to ‘interrogation,’ for which Miranda warnings are required, in another case. Therefore, ‘courts should carefully scrutinize the factual setting of each encounter of this type,’ ... keeping in mind that the critical inquiry is whether the police officer, based on the totality of the circumstances, knew or should have known that the question was reasonably likely to elicit an incriminating response.” Hughes, 346 Md. at 95-96 , 695 A.2d at 140 (citation omitted).

We do not find that the District Court judge’s 4 question, “Is there anything you’d like to tell me about yourself, sir?,” was reasonably likely to elicit an inculpatory response from petitioner. Just as an arrestee may give what turns out to be an inculpatory response to a routine booking question, as described above in Hughes , petitioner gave what turned out to be an inculpatory response to a routine question posed by the District Court judge at petitioner’s bail review hearing. In Williams v. State, 342 Md. 724, 759 , 679 A.2d 1106, 1124 (1996), Williams, after receiving Miranda warnings, blurted ¹¹ out two incriminating statements as officers were conducting his processing. 5 We said: “As the officers began to gather their papers, one of the officers told Williams to remove his earring and Williams mumbled under his breath, ‘you can’t get me. I’ll just say a girl gave me the card [the victim’s ATM card].’ After this second statement, Detective Zywiolek testified that he commented that ‘[t]his is going to work’ and reiterated to Williams that he was being charged with the murders of Gilbert and Trias.

At that point, Williams made a third statement: T know I’m never getting out.’ ” In holding that the second and third statements were admissible, we held: “Hence, the question before us is whether the police continued to interrogate Williams after he invoked his right to remain silent and requested an attorney.... “Thus, we must decide whether the words and actions of the detectives were reasonably likely to elicit incriminating responses from Williams. We conclude that they were not.... These were routine procedures that the officers could hardly be expected to anticipate would prompt an incriminating statement---- We cannot conclude that the trial judge erred in finding that these [the officers’] innocuous comments were not reasonably likely to elicit an incriminating response from Williams.” Id. at 760-61 , 679 A.2d at 1124-25 (alteration added). In our earlier case of State v. Conover, 312 Md. 33, 35-37 , 537 A.2d 1167,1168-69 (1988), we stated the issue as: “The question presented by this appeal is whether the actions of the police in reading a statement of charges to the Respondent, and handing to him copies of the charging document and the application upon which it was based, constituted, under the circumstances here present, the func ¹² tional equivalent of questioning, and thereby deprived Respondent of his Fifth Amendment right to have counsel present at a custodial interrogation. ... “One of them [the police officers] read the Statement of Charges to Respondent and handed him copies of the Statement of Charges and the Application, suggesting that he ‘read them, look at them, if you have any questions ask them.’ ...

Respondent then asked a number of hypothetical questions, in the vein of “what if or ‘suppose this,’ and also uttered the statement that the State later used against him at trial: ‘you can’t put me with that .38.’ ” [Alteration added.] We answered the question, by holding: “Prior to the decision in Innis , we considered the application of Miranda to the routine processing of an arrested defendant, and concluded that: ‘There seems to be a general agreement ... that Miranda does not apply to “administrative questioning,” the routine questions asked of all arrestees who are “booked” or otherwise processed.’ Vines v. State, 285 Md. 369, 376 , 402 A.2d 900 (1979).” ... “We infer no sinister motive from the fact that police provided Respondent with a copy of the Application as well as a copy of the Statement of Charges. ... “The police acted reasonably and lawfully, and the Respondent was not subjected to compelling influences, psychological ploys, or direct questioning. His volunteered statement was properly admitted.” Conover, 312 Md. at 39-45 , 537 A.2d at 1170-72 . While the present case is somewhat different from the setting in Williams and Conover , in that the blurted statement ¹³ occurred in open court in a District Court bail review hearing conducted by a District Court judge, the general routine question by the judge to which petitioner responded was much less likely to elicit an incriminating statement than the statements and actions of the officers in Conover and Williams . In the case at bar, there was less likelihood that petitioner was subjected to “compelling influences, psychological ploys” and he was not subjected to direct questioning in respect to the offenses for which he was charged.

We have never directly opined on these issues in the context of routine questions, and answers given in response to those routine questions, that occur during bail review proceedings conducted, not by law enforcement officers, but by District Court judges. The Court of Special Appeals, however, has directly addressed the issue in a case in which we denied a petition for certiorari. The Court of Special Appeals’ decision in Schmidt v. State, 60 Md.App. 86 , 481 A.2d 241 (1984), cert. denied, 302 Md. 131 , 486 A.2d 173 (1985), dealt with a defendant making an inculpatory statement at his bail hearing. In Schmidt , the defendant was charged with, inter alia, second degree rape and burglary.

During his bail review hearing the judge asked Schmidt if he knew the alleged victim and Schmidt replied, “At the time, no sir, I didn’t. I was drunk. I didn’t know who it was.” 6 Id. at 93 , 481 A.2d at 244 . At trial, Schmidt’s defense was that he knew the victim and that they had engaged in consen ¹⁴ sual sexual intercourse.

Schmidt moved to suppress the statement, but the motion was denied. He was thereafter convicted in the circuit court of second-degree rape, second-degree sexual offense and burglary. On appeal to the Court of Special Appeals, Schmidt argued that inculpatory statements made by an accused at a bail review hearing should be excluded under all circumstances. The intermediate appellate court disagreed and stated: “We see no need for the per se exclusionary rule urged by appellant.

If an accused who is represented by counsel and who is made aware of his fifth amendment right volunteers a statement deemed helpful to his position at a bail hearing, there is no logical reason why that statement could not be used against him at trial.” Schmidt, 60 Md.App. at 95 , 481 A.2d at 245 . See also United States v. Dohm, 618 F.2d 1169, 1171 (5th Cir.1980) (“We disagree with [defendant’s] contention that statements made by an accused while seeking bail are necessarily involuntary and coerced.”) (alteration added). In the alternative, Schmidt argued that his inculpatory statements were inadmissible because they were made in response to a custodial interrogation without the benefit of Miranda warnings during the bail review proceeding. The Court of Special Appeals agreed that Schmidt was in custody, stating that: “Schmidt was unquestionably in custody when he appeared before the District Court judge for a bail hearing.

He had been arrested and charged; the very purpose of the hearing was to determine whether or under what circumstances he might be released from custody. With respect to the custody aspect, the fact that Schmidt was in a courtroom rather than the stationhouse is of no significance. Custodial questioning can occur in settings other than the police station....” Schmidt, 60 Md.App. at 97-98 , 481 A.2d at 246-47 . While the intermediate appellate court did agree that Schmidt was in custody, it did not agree with Schmidt’s ¹⁵ contention that the bail review judge’s questioning amounted to an interrogation triggering additional Miranda safeguards. 7 In explaining this view, the court stated: “Not all questions asked of a prisoner or suspect while he is in custody constitute a ‘custodial interrogation’ for purposes of requiring Miranda warnings.

As Judge Orth noted for the Court in Vines , it is generally agreed that Miranda does not apply to ‘administrative questioning,’ the routine questions asked of all arrestees while being processed or ‘booked.’ Such routine questioning is conducted for purposes unrelated to evidence gathering and prosecution, so the questions are general in nature rather than specifically directed to any criminal offense. Similarly, any questions asked of an arrestee at a bail hearing should normally be general and unrelated to evidence gathering or prosecution.” Id. at 99, 481 A.2d at 247 (citation omitted) (emphasis added). The question asked of petitioner in the case sub judice, when compared to the question asked in Schmidt , is considerably less pointed. We hold that petitioner was not subject to “interrogation” within the meaning of Miranda.

Here, the District Court judge merely asked him if there was anything he would like to tell about himself. There is absolutely no indication that the District Court judge’s question was designed to elicit an incriminating statement. As we stated, infra, this was a routine, general question not designed to elicit any information about the specific criminal offense. It was an innocuous question. 8 Moreover, it was a proper ques ¹⁶ tion to ask in determining an appropriate amount of bail.

Maryland Rule 4-216 (2004) states, in pertinent part: “Rule 4-216. Pretrial release. ... (d) Duties of judicial officer. (1) Consideration of factors.

In determining whether a defendant should be released and the conditions of release, the judicial officer shall take into account the following information, to the extent available: (A) the nature and circumstances of the offense charged, the nature of evidence against the defendant, and the potential sentence upon conviction; (B) the defendant’s prior record of appearance at court proceedings or flight to avoid prosecution or failure to appear at court proceedings; (C) the defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition, length of residence in the community, and length of residence in this State; (D) any recommendation of an agency that conducts pretrial release investigations; (E) any recommendation of the State’s Attorney; (F) any information presented by the defendant or defendant’s counsel; (G) the danger of the defendant to the alleged victim, another person, or the. community; (H) the danger of the defendant to himself or herself; and (I) any other factor bearing on the risk of a wilful failure to appear and the safety of the alleged victim, another person, or the community, including all prior convictions and any prior adjudications of delinquency that occurred within ¹⁷ three years of the date the defendant is charged as an adult.” With the question, “Is there anything you’d like to tell me about yourself, sir?,” the District Court judge was merely giving petitioner a chance to explain to the judge any circumstances that may have some bearing on his bail that had not been already covered in the prior questioning. 9 For instance, he might have used this opportunity to explain where he was employed, how long he had resided in the community, whether he had any family in the area, etc. Petitioner, in his response, however, chose to make an inculpatory statement. 10 Because he was not being interrogated, the inculpatory nature of his response does not mean that it must be excluded simply because it was not immediately preceded by Miranda warnings. If that were to be the case, any voluntary statement or blurt given while a person is in custody, unless it were immediately preceded by new Miranda warnings, would be excludable. That is not the law. Miranda warnings were designed to advise a defendant that anything he said might be used against him.

In Schmidt , the Court of Special Appeals further stated: “Schmidt’s anxiety to be released on bail does not amount to coercion to incriminate himself. Indeed, he was clearly acting under far less compulsion than if he had been subpoenaed to testify before a grand jury, a situation that does not require Miranda