Griner v. State

SALMON, J. Florence Anjola Griner was convicted by a jury sitting in the Circuit Court for Montgomery County of four counts of second degree assault. She was sentenced to nine months incarceration on one count. The remaining counts were merged for sentencing purposes. Ms. Griner noted a timely appeal and presents two questions for our review: I. Did the trial court err in denying her motion to suppress her statements to the police?

II

Did the trial court err in granting the State’s motion to admit out-of-court statements attributable to the child-victim? BACKGROUND Prior to trial, appellant moved to suppress the statements she made to various police officers. In addition, the State requested a hearing, under Section 11-304 of the Criminal ⁷²⁰ Procedure Article of the Maryland Code (2001), 1 concerning the admissibility of the out-of-court statements made by the child-victim. To address these motions, the court conducted a hearing, which lasted two days.

In Part I.A, infra, we shall recount the evidence presented at that hearing. I. A. On January 9, 2003, at approximately 10:00 a.m., Montgomery County Police Officers Rosalyn Mills and Maquetta Blackstone responded to the area of Fenwick Lane and First Avenue in Silver Spring in response to a request that they check on the welfare of a child. Upon arrival, the officers came upon appellant and her grandson, Chase P., who was four-years and eight-months old. The child’s right eye was swollen and partially shut.

A laceration above the eye had been stitched. Officer Mills asked appellant what happened to Chase and she responded that he fell at a skating rink in Wheaton. Appellant also said that Chase had received medical attention. When Blackstone asked which hospital Chase had been taken to, appellant became “very agitated” and professed an inability to recall that detail.

Initially, appellant indicated that she did not want the officers to speak with Chase alone. After five to seven minutes, appellant relented and let Officer Mills talk to Chase while Officer Blackstone continued to speak with appellant. Officer Mills, who was in uniform and armed when she questioned appellant, testified that during the interview appellant was always free to leave at any time and take Chase with ⁷²¹ her. The officer, however, did not inform appellant of this fact.

On the other hand, Mills never informed appellant that she could not leave. Moreover, she never prevented appellant from leaving. According to Mills, appellant never asked to leave, nor did Mills ever threaten appellant or put her hands on appellant. Officer Blackstone corroborated Officer Mills’s testimony.

She testified that appellant did not try to leave or run away when the officers first approached her. According to Blackstone, neither officer put her hands on appellant or told her that she was not free to leave, nor did appellant indicate that she wished to leave. Chase initially told Mills that he had fallen, but the officer believed that what Chase said and what appellant said were inconsistent, so Mills again asked appellant what happened to Chase’s eye. Appellant again responded that Chase had fallen, adding that he had fallen on a step.

Because Officer Mills did not believe Chase’s injury was consistent with his having fallen on a step, she asked Chase if he had gone to the doctor to be treated for his eye. Chase replied that he had not gone to a doctor but that appellant had stitched his wound. Officer Mills then called for an ambulance to have paramedics examine the eye. After the ambulance arrived, appellant was informed that the paramedics were taking Chase to Holy Cross Hospital.

According to Officer Blackstone, appellant made no response when so informed. Blackstone told appellant that she could follow Chase to the hospital in her vehicle, which she did. Corporal Douglas Cobb arrived on the scene after Chase had been transported to the hospital, but before appellant left. The corporal first spoke with Officers Mills and Blackstone.

He then spoke with appellant for about five minutes and found her to be cooperative. He informed her that the police were there to investigate a possible child abuse case. When the corporal inquired into Chase’s injuries, appellant responded that he had fallen outside a skating rink in Wheaton, that his eye was swollen, and that he had not received any medical ⁷²² attention. The corporal asked if Chase had any other injuries and appellant stated that he had cut his hand that day.

Corporal Cobb asked appellant what type of discipline she used. She replied that she would hit Chase on his legs with a “switch” or a “small stick.” She denied, however, that she ever hit him anywhere else. Corporal Cobb did not advise appellant of her Miranda rights. He never told her that she was not free to leave, never placed his hands on her, and never physically restrained her.

Appellant gave no indication that she wished to speak to an attorney during the interview. Officer Blackstone drove to the hospital and waited in the lobby with appellant. During this interlude, appellant informed Officer Blackstone that she had a nursing background and that she had stitched up Chase’s eye after numbing it with ice. According to Officer Blackstone, appellant was not restrained or under arrest and did not ask for an attorney.

Blackstone did not advise appellant of her Miranda 2 rights because appellant was not under arrest. Officer Blackstone testified that she did not threaten appellant or offer her any inducements or rewards in exchange for appellant’s agreeing to speak with her. Saskia Inwood, a licensed social worker employed by Montgomery County Child Welfare Services, arrived at Holy Cross Hospital at noon on January 9, 2003, to investigate the allegations of child abuse. Inwood first spoke with Officer Blackstone, then interviewed Chase for about thirty minutes as he sat on one of the emergency room beds.

Chase initially told Inwood that he injured his eye when he fell on the ice at a skating rink. When Inwood asked Chase to tell her about appellant, Chase responded that she hit him a lot. He added that appellant uses a “pow stick,” which he described as a long stick, and that she hit him “all over.” He also said that, just the day before, she hit him in the eye with ⁷²³ the pow stick. Chase said that he was scared of appellant and that she also hit him with a cane and a belt.

Chase also said that appellant had stitched the area above his eye. He said that appellant did not apply ice to the wound; instead, she used some type of cream. Inwood observed marks all over Chase’s body, which Chase indicated were caused by appellant, who Chase believed was his mother. 3 Chase also told Ms. Inwood that appellant would tie him to his bed and that, while tied up, he had once gone three days without food. He had been given water because he had apologized.

He stated that he would be untied to use the bathroom. Also on January 9, Ms. Inwood spoke with appellant, who denied tying Chase to the bed for days at a time. She admitted that she used the “pow stick” to discipline Chase but denied hitting him in the eye. She also admitted that she had hit Chase with a belt.

She stopped using the belt when she saw that it left a mark. Detective Karen Carvajal and Detective Frank Darley of the Montgomery County Police Department, Family Crimes Division, arrived at Holy Cross Hospital shortly before 1:00 p.m. on January 9. Upon entering the hospital, Detective Darley went to the emergency room, and Detective Carvajal and Officer Blackstone went to the lobby where Blackstone introduced Carvajal to appellant. Officer Blackstone then left the hospital.

Appellant agreed to speak with Detective Carvajal and they went to a private room off the lobby. The detective was not armed, wore plain clothes, and was six or seven months pregnant. Detective Carvajal testified that she did not tell ⁷²⁴ appellant that she had to speak with her; rather, she simply asked to talk with appellant. Only Detective Carvajal and appellant were in the room.

According to Detective Carvajal, at no time did appellant indicate that she did not want to speak with her or that she wanted to speak with an attorney. Detective Carvajal did not advise appellant of her Miranda rights because appellant had accompanied Chase to the hospital, and the detective “just wanted to find out the circumstances of his injuries and what happened.” During the interview, Detective Carvajal never touched appellant, did not threaten her, and did not offer appellant any inducements or rewards in return for appellant’s agreeing to give her version of events. Detective Carvajal described appellant as being “jittery” but said that the tone of the conversation was “normal, not upset or accusatory.... I just asked her what happened.” Appellant was “cooperative.” During the fifty-minute interview by Detective Carvajal, appellant did not ask to leave or use the bathroom, nor did she indicate that she was not feeling well.

Nothing in appellant’s appearance or demeanor suggested to the detective that appellant was ill or under the influence of drugs or alcohol. During the interview, appellant told the detective how Chase was injured. The detective reduced appellant’s statement to writing. Appellant read the statement, made additions and corrections, placed her initials beside her notations, and signed the statement. 4 While Detective Carvajal was meeting with appellant, Detective Darley went to the emergency room and spoke with Ms. Inwood, who gave him a summary of what she had learned from Chase.

Detective Darley then interviewed Chase. During that interview, Ms. Inwood was present, as were various doctors and nurses who were in and out as they attended to Chase’s ⁷²⁵ medical needs. The detective spent less than an hour with Chase. Detectives Carvajal and Darley next met in the emergency room.

Then Detective Carvajal took Detective Darley to meet appellant. Detective Darley asked appellant if they could follow' her to her residence to retrieve the stick she had mentioned, and appellant agreed. Detective Darley did not tell appellant that she could not go anywhere until the detectives had finished speaking with her, and appellant did not ask if she should speak to a lawyer. Appellant then drove her own vehicle to her residence, and the detectives followed in a separate car.

At appellant’s residence, the three were on the doorstep, and appellant said that she would go inside to get the stick. Darley inquired if he and Carvajal could accompany her. Appellant responded in the affirmative. Appellant then gave the detectives the stick, which Detective Darley described as a “quarter-round piece of wood that’s flimsy, approximately two feet, give or take in length.” The officers were at appellant’s residence for ten to fifteen minutes.

As he was about to leave the house, Detective Darley asked appellant if she would come to the police station to continue the interview. Appellant agreed and drove herself to the station. At the police station, Detective Darley informed appellant that she was not under arrest. Detective Darley spoke with appellant in an interview room, and the interview was videotaped.

He was in plain clothes and unarmed. At the start of the interview, Darley informed appellant that she was free to leave at any time. The interview lasted ninety minutes. Appellant was not advised of her Miranda rights during this videotaped interview because Detective Darley considered it “a non-custodial interview” in which appellant “was not under arrest and was free to go and indeed, ... did leave [at approximately 4:30 p.m.] the building after the interview.” According to Darley, appellant never expressed a desire to leave, never asked to speak to an attorney, and never indicat ⁷²⁶ ed that she no longer wished to speak to the detectives.

Nothing in her demeanor or appearance indicated to Darley that she was ill or under the influence of any medication or drugs. Detective Darley told appellant that he was going to try to bring the matter to a successful conclusion and that one of his purposes was to make sure that the behavior that Chase talked about did not happen again. He also informed appellant that he would talk to Child Protective Services concerning the information appellant gave to the police, but that Protective Services would decide what would happen to Chase. The detective added that he never told appellant that he could do anything for her or that he would help her.

During the interview, appellant again mentioned the “pow stick.” She also stated that she used Chase’s belt on him and agreed to give the detectives the belt. After the interview, Detective Darley followed appellant back to her residence where she gave him the belt. Amandip Kaur, a registered nurse employed at Holy Cross Hospital, admitted Chase to the pediatrics ward from the emergency room on January 9, 2003. She spent approximately one-half hour with Chase.

Kaur recalled that Chase’s right eye was “really swollen and red” and that he had two sutures above the eye. After admitting Chase, Kaur did a “head-to-toe assessment of him” and noted that “he had various scars and bruises throughout his body.” The scars “were like U- and C-shaped marks.” When Kaur asked Chase what happened to his eye, he replied that he had fallen. Kaur continued with her examination and, upon seeing the other bruises and scars, asked Chase if he was sure he had fallen. Chase responded: “[W]ell actually my mom hit me with a stick.” When Kaur asked why she hit him, Chase answered that it was because he had been “a bad boy” and had not done his “math and spelling lessons.” Kaur also asked Chase about the various scars on his body, and he again stated that appellant had hit him with a stick. ⁷²⁷ Kaur had no difficulty understanding Chase, and the child was responsive to her questions.

She never suggested to Chase what had happened, or that anyone had done anything to him. Chase used language appropriate for his age and never told Kaur anything to make her believe that anyone had put him up to making those statements. The next day, January 10, Ms. Inwood took Chase to a foster home and told the child that he would not be going home. Chase replied that he did not want to go home because “his mother pows him too much.” On January 22, 2003, Dr. Nerita Estampador-Ulep, 5 a pediatrician employed by the Department of Health and Human Services, interviewed and examined Chase, who was brought to the doctor’s office by Inwood.

Dr. Estampador-Ulep spent approximately thirty minutes with Chase. Outside of Chase’s presence, Inwood provided the doctor with Chase’s medical records and a photograph of the injury to his eye. When Dr. Estampador-Ulep asked Chase what happened, he stated that his mother hit him with a stick because he was bad and did not do his math. Dr. Estampador-Ulep testified that Chase was well-developed, very friendly, very open, verbal, cooperative, and conducted himself as would a child older than his age.

Upon removing Chase’s clothing, the doctor observed “all these bruises, old scars really, of injury to his skin.” He had “linear scars” on his body and “loop marks” on his back and thighs. Chase indicated that he had gotten the loop marks on his thighs when appellant hit him with an “electric.” 6 Chase also said that appellant had hit him with a stick on his eye and that no one else had hit him. Dr. Estampador-Ulep did not ask Chase leading questions and did not suggest to him what had happened to him. ⁷²⁸ Inwood was present for the interview, but Chase did not look to Inwood while he was with the doctor. Dr. Estampador-Ulep opined that, due to the location of the loop marks and the pattern of the marks, the marks were intentionally inflicted and were consistent with having been caused by use of an electrical cord.

At the hearing to suppress the foregoing statements, appellant did not testify. B. At the pretrial hearing, the defense argued that, under the totality of the circumstances, the statements made by appellant should be suppressed, for the following reasons: (1) appellant “was not free to go” and “was in custody,” when the police decided to send the child to the hospital and told her to go there; (2) a reasonable person in appellant’s situation would not have felt free to leave, when she was “separated from a child” who had been in her care and custody since his birth; (3) a police officer took appellant’s identification and could not remember when it was returned; (4) at the hospital, at least one police officer stayed with her, continuously; (5) no Miranda warnings were ever given, before any questioning; and (6) appellant’s interrogators at the police station offered her the improper inducement that they would tell Child Protective Services that she helped the police, if she made a statement. The motions judge denied the suppression motion. Defense counsel also contended that the State’s witnesses should not be allowed to testify as to what Chase had told them—unless Chase was called as a witness.

Defense counsel made the following argument: [Tjhere was no evidence “that the child could tell the difference between the truth and a lie”; that during the court’s meeting with the child, then five years old, he falsely claimed to be six years old, and he was never asked about either “the difference between the truth and a lie,” or “the importance of telling the truth”; that the State’s witnesses to the child’s statements did not ask him about these ⁷²⁹ important concepts; that there was no video recording or transcript of these statements; that “[w]e have no idea what the questions were” and whether they were “suggestive”; that the witnesses admittedly would be “paraphrasing” both the questions and answers, as opposed to providing the “exact” ones involved; that the child was only four years old, at the time he made these statements; that suggestive questions or comments in one interview could have “tainted” the next interview; that the child initially explained his injury by saying that he “fell,” which the witnesses did not “believe,” but as the medical witness admitted, “if a child was asked a question more than once, they may believe that their first answer was wrong”; and that the child did not provide information about the nature and duration of the alleged abuse. The motions judge granted the State’s motion to admit the out-of-court statements made by Chase.

II

DISCUSSION A. Appellant claims that the court erred in denying her motion to suppress the statements she made to the police. She contends that, when the police responded to the scene to check on Chase’s welfare, they focused immediately on her because she was the child’s care giver. Appellant asserts that the questioning took on the characteristics of a custodial interrogation when the police took Chase away from her, took her identification, and told her to follow them to the hospital. Appellant claims that, during her detention, the police were waiting for her resistance to be worn down, for her to change her story, and thus for her to confess.

Appellant stresses that she was never advised of her Miranda rights; yet, the police used language that constituted a show of authority to get her to remain at the scene, to answer questions, and to go to the hospital for more questioning. Appellant also asserts that her statement at the police station was involuntary because Detective Darley promised to ⁷³⁰ tell Child Protective Services of her cooperation. She alleges that such a promise, made to a woman who acted as Chase’s mother, must have carried great weight. Further, the show of authority by the police was sufficient to convince her to agree to take them to her home and hand over the pow stick and belt used to strike Chase.

In reviewing the grant or denial of a motion to suppress evidence under the Fourth Amendment, we ordinarily consider only the information contained in the record of the suppression hearing and not the trial record. State v. Green, 375 Md. 595, 607 , 826 A.2d 486 (2003). We also view the facts in a light most favorable to the State as the prevailing party on the motion. State v. Collins, 367 Md. 700, 707 , 790 A.2d 660 (2002). “Although we extend great deference to the hearing judge’s findings of fact, we review, independently, the application of the law to those facts to determine if the evidence at issue was obtained in violation of the law and, accordingly, should be suppressed.” Laney v. State, 379 Md. 522, 533-34 , 842 A.2d 173 , cert. denied, 543 U.S. 966 , 125 S.Ct. 434 , 160 L.Ed.2d 335 (2004) (citations omitted). “[A] defendant’s confession is admissible only if it is ‘(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.’ ” Hof v. State, 337 Md. 581, 597-98 , 655 A.2d 370 (1995) (quoting Hoey v. State, 311 Md. 473, 480 , 536 A.2d 622 (1988) (citations omitted)).

Under Miranda v. Arizona, 384 U.S. 436, 444 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), “an accused’s statement cannot be used against the accused at trial if it was the product of ‘custodial interrogation’ and the police did not inform the accused of certain habitual warnings before taking a statement.” Minehan v. State, 147 Md.App. 432, 440 , 809 A.2d 66 (2002). Those warnings include that the accused “has the right to remain silent, that any statement he does make may ⁷³¹ be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Miranda, 384 U.S. at 444 , 86 S.Ct. 1602 . Whether appellant was in “custody” when she made the incriminating statements is a legal question, which we decide de novo using the facts found by the suppression court. Ashe v. State, 125 Md.App. 537, 549 , 726 A.2d 786 (1999).

The facts as found by the court in the case at hand were: Now, with respect to the motions to suppress statements made by [appellant], there were a number of issues raised yesterday.... [ 7 ] But let’s talk about, starting with, were these custodial interrogations? ... Starting with the ... encounter on the street when the officers first arrived at the scene. There was an argument made that Ms. Griner was not free to leave. The Court does not, and therefore, there was a custodial detention of some kind, and I do not find that.

In fact, I think what occurred was Chase was not free to leave because the officers had determined they were going to have someone look at his eye. And I believe Ms. Griner was acting as you would expect her to act as his custodian by staying with him because she was his grandmother. She was taking care of him. She wasn’t going to leave him there.

So, in that sense, she did not leave because Chase was there but that’s not the same thing, by any means, as any kind of custodial detention. And there was a little bit of difference between the various officers’ testimony as to whether or not someone was, in fact, with Ms. Griner nonstop throughout the day while she was at the hospital waiting room and so forth. But I do not find, whether or not they’re entirely consistent on this point, I do not find she was in any way in custody at that point. She was, in fact, free to leave.

She was sitting in a hospital waiting room. There were various officers going in and talking to her at different times. But she was ⁷³² very clearly not in custody. And was not in custody, as far - as I’m concerned, that entire day.

She drove her own car back to her house. She drove her car to the hospital that day. I think she drove back to the house twice with the police officers following her to pick something up but not because she was in any way being held or in custody. So, I do not find there to be an issue with custodial interrogation.

With respect to a voluntary consent to be in the house, apparently Ms. Griner, although I’m not sure where I heard this from, did initially ask the officers to wait outside. When they asked if they could come inside she let them. I don’t believe that there was anything involuntary about that. The next issue, I believe, raised was whether or not there were any improper promises made during the course of the video interview.

And I think I had told you that I’d felt I needed to read the transcript before I could rule on that because you all had seen the video but I had not. And I still haven’t seen the video but I have, in fact, read through the transcript. The officers make it clear during the course of that interview she was not under arrest. She was not in custody.

She was free to leave. No matter what she said she was still going to be free to leave at the end of the interview, which, in fact, she was. She left. Court does not find that the statements she made were the result of any improper inducements or involuntary coercion.

In Bond v. State, 142 Md.App. 219, 228 , 788 A.2d 705 (2002), we said: “In determining whether an individual was in custody [when he was questioned], a court must examine all of the circumstances surrounding the interrogation, but ‘the ultimate inquiry is simply whether there [was] a “formal arrest or restraint of freedom of movement” of the degree associated with a formal arrest.’ ” Stansbury v. California, 511 U.S. 318, 322 , 114 S.Ct. 1526 , 128 L.Ed.2d 293 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125 , 103 S.Ct. 3517 , 77 ⁷³³ L.Ed.2d 1275 (1983) (quoting Oregon v. Mathiason, 429 U.S. 492, 495 , 97 S.Ct. 711 , 50 L.Ed.2d 714 (1977))). Accordingly, the issue of custody is to be decided under an objective standard, i.e., “how a reasonable man in the suspect’s position would have understood his situation.” Berkemer v. McCarty, 468 U.S. 420, 442 , 104 S.Ct. 3138 , 82 L.Ed.2d 317 (1984). Furthermore, the decision whether the accused was in custody “depends on the objective circumstances of the interrogation, not on the subjective views harbored by either the interrogating officers or the person being questioned.” Stansbury v. California, supra, at 323, 114 S.Ct. 1526 . See also Minehan, 147 Md.App. at 440 , 809 A.2d 66 (“Custody means a formal arrest, or another serious restriction on freedom of movement.”) (citation omitted); Reynolds v. State, 88 Md.App. 197, 209 , 594 A.2d 609 (1991) (“ ‘Custody’ ordinarily contemplates that a suspect will be under arrest, frequently in a jailhouse or station house setting.”), aff'd, 327 Md. 494 , 610 A.2d 782 (1992).

In the case sub judice, appellant was never told by a police officer that she was not free to leave. No officer placed his or her hands on appellant or physically restrained her. At all times, appellant was free to stop the police questioning and to leave. She was not placed under arrest, and she never indicated in any way that she did not want to speak to the officers or that she wished to speak with an attorney, nor was appellant told or ordered to go to the hospital with them.

In addition, when traveling to the hospital, her house, the police station, then back to her house, appellant traveled alone in her own vehicle. The police officers and detectives never told appellant that she had to go to any of these places or that she was required to give a statement or turn over the “pow stick” or belt. At the police station, Detective Darley informed appellant that she was not under arrest and that she was free to leave at any time.. Following the interview, she left the police station. ⁷³⁴ The motions judge did not err in concluding that appellant was never in custody and, therefore, that the dictates of Miranda did not apply.

See Minehan, 147 Md.App. at 440-43 , 809 A.2d 66 (defendant not in custody where he accompanied officers to the police station, was not restrained in any way, stated that he had come with the officers of his “own free will,” was told by the officers that he did not have to answer any questions and was free to leave, and left station after interview); Ashe, 125 Md.App. at 551-52 , 726 A.2d 786 (where defendant accompanied officers to police station, was told he was not under arrest and was free to go at any time, even though questioning took place in police station and defendant was surrounded by police officers, defendant was not in custody). We next consider appellant’s claim that her statement given at the police station was involuntary. See In re Eric F„ 116 Md.App. 509, 516 , 698 A.2d 1121 (1997) (“Even if appellant was not in custody, the confession obtained during a noncustodial interrogation is presumptively inadmissible, unless it is shown to be free of coercion.”). “Voluntariness under Maryland nonconstitutional law (i.e., common law) means that the incriminating remark must be ‘shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from