Henry v. State

⁵¹⁵ EYLER, DEBORAH S., J. The primary question in this case is whether the State satisfied its burden to rebut the presumption, under Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981), that inculpatory statements given to the police by a suspect in custody after he had invoked his right to counsel were not voluntary. We hold that the State did not satisfy its burden of proof and the statements therefore should have been suppressed from evidence before trial. In the Circuit Court for Prince George’s County, Carlton Nicholas Henry, the appellant, was charged with two counts of first-degree rape; two counts of second-degree rape; kidnapping; attempted first-degree sexual offense; two counts of first-degree sexual offense; two counts of second-degree sexual offense; second-degree assault; and two counts of false imprisonment. Following a jury trial, he was acquitted of all charges except second-degree assault.

The court sentenced him to ten years’ imprisonment, with all but eight years suspended, with credit for time served, to be followed by three years’ supervised probation. In his timely appeal, the appellant asks whether the circuit court erred in denying his motion to suppress inculpatory statements to the police and whether the court erred in denying his motion to dismiss based on an alleged speedy trial violation. As noted, we agree with the appellant that the court should have granted the suppression motion. Because we conclude that the court did not err in denying the speedy trial motion, we shall reverse the judgment and remand the case for further proceedings.

FACTS AND PROCEEDINGS For context, we shall review the State’s evidence at trial. Casey Mark, the victim, testified that on February 5, 2009, she was working as a prostitute. At around 8:00 that evening, she met the appellant at a prearranged location in Virginia to have sex for money. Mark got into the appellant’s vehicle and he began driving toward Maryland.

At some point during the ride, the appellant pulled a butcher knife from the side of his ⁵¹⁶ car door, held it against Mark’s neck, and threatened to kill her. He then stopped the car and placed a blindfold over Mark’s eyes. When the appellant resumed driving, he hit Mark’s head with the flat part of the knife. According to Mark, she and the appellant arrived at an apartment complex (in Maryland) and the appellant told her that if she ran he would shoot her.

Thinking the appellant had a gun, Mark entered an apartment at the appellant’s direction. 1 Inside, the appellant held the knife at Mark’s throat, threatened her, and forced her down on the bed. Mark struggled to escape, at one point reaching for the knife, but she hit her head on a dresser and blacked out. When she came to, she was tied down to the bed. The appellant sexually assaulted her by forced vaginal intercourse, cunnilingus, fellatio, and attempted anal intercourse.

The appellant used a condom during the forced vaginal intercourse. Afterward, he instructed Mark to take a shower, which she did. The appellant also took a shower. After showering, Mark attempted to get dressed, but the appellant told her not to.

He put on another condom and again forced vaginal intercourse and fellatio on her. Once again, he instructed Mark to shower afterward, which she did. The appellant then proceeded to clean the apartment. He directed Mark to put the blanket, sheets, and several towels in a bag.

Márk testified that the appellant forced her into his car, drove to a residential area, and ordered her to put the bag in a trash can. He then drove her to a nearby Metro station, told her he was a police officer, threatened to kill her if she told anyone anything about the encounter, and released her. Mark contacted authorities at the Metro station, who called the police. When the police arrived, Mark directed them to the apartment and to the trash can where she had disposed of the evidence at the appellant’s direction.

The police searched ⁵¹⁷ the apartment and also recovered the bag. The bag contained clothing, paper towels, sheets, a used condom, and a condom wrapper. DNA testing performed on the condom showed that the inside of the condom contained the appellant’s DNA and the outside of the condom contained Mark’s DNA. DISCUSSION I. Motion to Suppress the Appellant’s Statements to the Police A. Suppression Hearing Evidence and Ruling Before trial, the appellant filed a motion to suppress a written statement he gave the police; audiotaped statements he made to the police and a police photographer; and three photographs taken by the police photographer, all while he was in custody at the station house.

At the suppression hearing, the State called three detectives with the Prince George’s County Police Department: Sherry Prince, Denise Shapiro, and Meredith Bingley. The appellant testified on his own behalf. The evidence was as follows: The police arrested the appellant on February 7, 2009, at about 12:30 a.m., after they had searched the apartment Mark had identified. The appellant was transported to the police station and placed in an interview room that was equipped with an automatic recording device.

At the time, the recording device only was capturing audio, not video. 2 Detective Prince met with the appellant at around 1:30 a.m., in the interview room, to obtain general information. The ⁵¹⁸ audiotape reveals the following conversation between the appellant and Detective Prince, which made clear that, without a Miranda warning, 3 he knew he had a right to counsel and he invoked it: THE APPELLANT: Do I get a lawyer or something? DETECTIVE PRINCE: You’re not under arrest. THE APPELLANT: So why am I here?

DETECTIVE PRINCE: To talk about the incident that happened upstairs in apartment 303. The incident. THE APPELLANT: What incident? DETECTIVE PRINCE: The incident between you and another female.

The appellant proceeded to talk about something that happened between him and a woman “in Virginia.” The conversation then continued: DETECTIVE PRINCE: Let me read you your rights. THE APPELLANT: So that’s why I’m under arrest now? DETECTIVE PRINCE: You’re not under arrest. I’m just reading you your rights.

THE APPELLANT: Get me my lawyer then. Detective Prince asked the appellant whether he had a lawyer; when he replied that he did not, Detective Prince left the room. Not long thereafter, Detective Shapiro observed the light go off in the interview room in which the appellant was being detained. Explaining that this was a “safety issue,” Detective Shapiro testified that she opened the door, turned the light on, and told the appellant that the light needed to remain on.

The appellant asked to go to the bathroom, for a warm drink, and for some socks. Detective Shapiro told the appellant he was okay and left the room. ⁵¹⁹ Lieutenant Bingley, also on duty that night, was a sergeant assigned to the police department’s sexual assault unit. 4 She testified that in the middle of the night in question, she was on duty and entered the interview room in which the appellant was detained, accompanied by a photographer. The audiotape reveals the following conversation: THE APPELLANT: So when am I going to talk to a lawyer or something like that? LIEUTENANT BINGLEY: One will be provided to you by the court.

THE APPELLANT: When is that? LIEUTENANT BINGLEY: Probably um right around your preliminary hearing time. I’ll explain everything to you. Okay?

THE APPELLANT: So am I being charged or something? LIEUTENANT BINGLEY: Yep. You’re being charged. THE APPELLANT: What am I being charged with?

LIEUTENANT BINGLEY: Uh right now um I’m not sure yet so hold on a second.... I’ll explain everything to you. When asked at the suppression hearing if she had known whether the appellant could see a lawyer earlier than the preliminary hearing date, Lieutenant Bingley testified, “I don’t know when he would be appointed a lawyer. I have no idea.” She did not tell the appellant that.

Also, when she told the appellant he would be charged, she did not know what the charges would be. The police photographer who entered the interview room with Lieutenant Bingley took pictures of the appellant. The photographer asked him, “Where’s your other injury?” The appellant showed the photographer another injury, which the ⁵²⁰ photographer took a picture of. The appellant told the photographer how he had been injured by a person with a knife.

The appellant again asked to be taken to the bathroom. Sergeant Robert Taylor entered the interview room and he and Lieutenant Bingley took the appellant to the bathroom. That required escorting the appellant out of the interview room (where the audiotape recorder was located) and down a hallway to where the bathroom was located. There was no recording device in the hallway or the bathroom.

It is undisputed that when the appellant left the interview room to walk to the bathroom he had invoked his right to counsel more than once and had said nothing to the contrary, but by the time Sergeant Taylor and Lieutenant Bingley returned the appellant to the interview room, the appellant was saying that he wanted to talk. The prosecutor questioned Lieutenant Bingley as follows about the trip to the bathroom: [PROSECUTOR]: And when you walked with [the appellant] to the bathroom, do you remember whether or not there was any conversation between you and the defendant? LIEUTENANT BINGLEY: On the way down, he kept asking whether he was being charged, what was he being charged with. And he went into the bathroom— Q. Let me stop you for a minute.

Did you go into the bathroom with him? A. No, I did not. Q. Okay. Did Sergeant Taylor go in with him?

A. I believe he did. Q. And then what happened? A. They came out. I stood by the bathroom door, just in case there was any problems, and then we walked back up the hallway and he—once he learned he was being charged, he started saying he wanted to make a statement now, he wanted to talk now.

Lieutenant Bingley further testified on direct that, with regard to the walk, the “whole way down and back from the ⁵²¹ bathroom, [the appellant] was begging to give us that story, and we are so tired at this point, and we’ve had two other cases that night, we wanted him just to be quiet.” The following important colloquy took place: Q. So you’re saying on the way down and back, you were not telling him any of your evidence against him at that point? A. I don’t remember exactly what Sergeant Taylor said. He was leading the conversation. Q. So you’re saying that you guys, meaning you and Detective Taylor, were not telling Mr. Henry the evidence that the police had and what he was being charged with.

A. Like I said, I have no idea. I do not remember exactly what Sergeant— Q. You don’t remember what Sergeant Taylor was telling him? A. Not exactly what Sergeant Taylor was telling him, no. (Emphasis added.) Lieutenant Bingley agreed at the suppression hearing, upon hearing the audiotape of the three re-entering the interview room, that at that point Sergeant Taylor was saying, “ ‘it’s better that you don’t give us your statement because all the evidence points to’—he does kind of trail off.

He says, ‘points to,’ trails off a little bit, ‘is all ours.’ ” She further agreed that the audiotape reveals that, right after Sergeant Taylor said that, the appellant said, “but I want to tell you my side of the story.” The audiotape itself was played at the suppression hearing, as noted, and it reveals the following discussion between the appellant, Lieutenant Bingley, and Sergeant Taylor right after the appellant was returned to the interview room: THE APPELLANT: Yo, man. Can I talk to you? Can I explain my side of the story to you? LIEUTENANT BINGLEY: You asked for an attorney.

THE APPELLANT: Right. ⁵²² SERGEANT TAYLOR: Too late. THE APPELLANT: Listen, my man,— SERGEANT TAYLOR: Anything that you say right now we can’t use so we don’t need to hear it. THE APPELLANT: Can I write it in pencil and paper? SERGEANT TAYLOR: You can write it.

LIEUTENANT BINGLEY: Sure.... I’ll have you sign the form for waiving. I can’t guarantee you it’s going to be used at all, but I will let you write down your side of the story. If you insist.

We’re saying, you asked for a lawyer, we heard you loud and clear ask for an attorney. But, we will let you write your side of the story. According to Lieutenant Bingley, immediately after this exchange she obtained an advice of rights form, advised the appellant of his Miranda rights, and he waived his rights, signing the form at about 4:00 a.m. The appellant then wrote out a six-page statement, which was admitted into evidence at the suppression hearing.

He also made an oral statement to Lieutenant Bingley. The appellant’s written statement begins: “I wanna write a statement, earlier I had asked for a lawyer but now I want to tell my story—what really happen.” Lieutenant Bingley testified that she told the appellant to write that. The appellant’s statement goes on to say that he had paid money to a woman known to him as “Tasha” in exchange for sex. He and the woman had met, not for the first time, on a Thursday night in Virginia.

The woman directed him to a location to buy marijuana. When they arrived at the location, they exited the vehicle and were met by two men who started talking to the woman. The men asked what the appellant wanted and he told them he only wanted a “dub” and that “if I like it I will get more next time.” When he walked back to his car to get his wallet, someone put a knife to his throat and demanded his money and car keys. One of the men punched him in the stomach and he struggled to get the knife away from his neck.

He bit the person wielding the knife and managed to wrest control of the knife. He then accidentally “cut the person ⁵²³ holding the knife” before managing to escape. He denied raping anyone, writing, “Honest to god I did not rape no one, we had sex twice and safely too.” The appellant testified on direct examination at the suppression hearing about the trip to the bathroom: Q. Do you remember a point when you left [the interview room] to go to the bathroom? A. Yes, sir.

Q. What happened on your way back from the bathroom? A. I was being told that it’s best for me to tell my side of the story, and the officer was letting me know that all the evidence pointing to me, that they have the witness statement placing me at the scene. Q. And how did that make you feel? A. Fear and intimidated.

Q. Well, why did them telling you that they had witness statements and they had evidence against you make you afraid and intimidated? A. Because they talking about I will never see my Corolla (phonetic) again,[ 5 ] and he was asking me if I got kids, and I’ll never see my kids again. Q. Now, was this Detective Taylor that was telling you this? A. Yes, sir.

Q. Now, when he told you that stuff about not being able to see your kids again and not being able to see your girl again, you said that put you in fear? A. Yes, sir. Q. Did you say anything in response to that? A. I tell him no, none of this ain’t true and I want a lawyer. ⁵²⁴ Q. Okay.

And did Detective Taylor or, at the time, Sergeant Bingley say anything in response to you saying you wanted a lawyer? A. I keep telling them I want a lawyer, and they keep telling me it’s best I just go on with this. You know, basically, I wasn’t getting nowhere with them. (Emphasis added.) Further, the appellant testified: Q. Now, after you told them again that you wanted a lawyer on the way back, what, if anything, did they say to you then?

A. They’re telling me that they have all the evidence, you know, telling me they have all the evidence against me, the witness against—they have witness statement against me, the victim statement against me, everything pointing me on the scene, and they have all the evidence against me. Q. And how did that make you feel? A. Fear. (Emphasis added.) The appellant said that this fear caused him to change his mind and decide to give a written statement even though he did not have a lawyer present.

When asked what he was afraid of, the appellant replied, “[t]he fact that I won’t be able to see my kids again.” He testified that that was the only reason he gave a statement, “[bjecause I’m not guilty of this.” When asked on cross-examination how many times Sergeant Taylor had told him about all the evidence against him, the appellant replied, “Ma’am, to be honest, he was a nag with it.” The appellant added that Sergeant Taylor had told him several things, including that “[a]ll the evidence pointing to me, right? They have the witness statements against me, and the evidence planted me at the scene”; and that “I won’t see my family again.” The cross-examination continued as follows: ⁵²⁵ Q. Um-hmm. And all of this happened on the 20 steps from after you used the bathroom, back to the interview room, right? A. From that point, going and coming.

Q. Now it’s going and coming. A. Well, ma’am— Q. On direct you said it was on your way back. So is it going and coming or just on the way back? You have to choose one.

A. Well, I wasn’t walking with myself, ma’am. Q. Right. But when your lawyer asked you when was it, you said it was on the way back from the bathroom. A. That was what he said.

Q. Now, when I asked you—let me finish my question so we’re clear. When I asked you, you said it was on the way going and coming. So my question to you now, sir, was that on the way to the bathroom and coming or just back from the bathroom? A. Ma’am, I can remember clearly, right, he was putting these argument [sic] to me, right, at the fountain, coming up, right?

So these was his argument, these was his words to me, that I need to make a statement. Q. Coming—passing—you mean the water fountain? A. Where I went. Q. Okay.

So from the bathroom, back to the interview room. A. Yes, ma’am. After the appellant testified, the defense rested. At that point, the prosecutor sought a continuance to call Sergeant Taylor, asserting that the sergeant was in Las Vegas and would not be back for about five days.

Defense counsel objected, noting that Sergeant Taylor had been present at the most recent prior motion hearing and it would have been no surprise to the State that his testimony would be important at the suppression hearing. After hearing additional argument from the prosecutor, the court denied the motion for continu- ⁵²⁶ anee, stating, “I think I probably have enough evidence in front of me at this point to make a determination.” The court entertained argument on the motion to suppress. Defense counsel maintained that the appellant’s written and audiotaped statements, and the photographs of his injuries, should be suppressed on the ground that the appellant was in custody and had invoked his right to counsel but nevertheless had been subjected to the functional equivalent of interrogation, which resulted in his statements to the police. Specifically referring to Blake v. State, 381 Md. 218 , 849 A.2d 410 (2004), cert granted, 544 U.S. 973 , 125 S.Ct. 1823 , 161 L.Ed.2d 722 , cert. dismissed, 546 U.S. 72 , 126 S.Ct. 602 , 163 L.Ed.2d 406 (2005), defense counsel argued that “[t]he burden is on the State to prove that after invoking his or her right to counsel, that the accused initiated further discussions with the police.” Defense counsel also observed that the pertinent test focuses on “the defendant’s perspective rather than on the police officer’s intent.” 381 Md. at 233-34 , 849 A.2d 410 .

Defense counsel further argued that the audiotape showed that the appellant asked for a lawyer at least twice: once to Detective Prince and once to Lieutenant Bingley. The police photographer questioned him thereafter (“show me where else you were injured”). Moreover, Lieutenant Bingley’s response to the appellant, that he could speak to a lawyer at the preliminary hearing, was misleading because the appellant “doesn’t know when the preliminary hearing date is. He doesn’t know how far out that is going to be.” Noting that “we don’t know what happened out in that corridor on the way to and from” the bathroom, defense counsel expressed skepticism that, in the five minutes between when he was taken to the bathroom and when he returned to the interview room, the appellant suddenly changed his mind about wanting a lawyer without anything being said to him to prompt a change of mind.

Defense counsel argued that, considering the portions of Sergeant Taylor’s remarks that could be heard on the audiotape, as well as the appellant’s testimony that Sergeant Taylor told him he would not see his children again, the ⁵²⁷ appellant had been subjected to the functional equivalent of interrogation after he had invoked his right to counsel. In response, the prosecutor agreed that the appellant had asked for a lawyer initially but argued that the appellant initiated conversations with the detectives thereafter, repeatedly, “saying to the police I want to talk to you, I want to talk to you, can I tell my story, can I tell my story.” With respect to the appellant’s testimony about what Sergeant Taylor said to him during the trip to the bathroom, the prosecutor argued that the appellant simply was not credible because he had given conflicting testimony about whether Sergeant Taylor’s remarks concerning the evidence and the appellant’s family were made on the way to or on the way back from the bathroom, or both. In rebuttal argument, defense counsel disagreed that the appellant had initiated any conversation with the police, asserting: „ The only point that could be considered him initiating conversation is when Detective Bingley testified that he was well outside in the bathroom, that he stated that he wanted to give a statement. Which, again, seems unbelievable that for the prior three hours he was saying no, I want to talk to a lawyer, I want to talk to a lawyer, I want to talk to a lawyer, then as soon as he goes to the bathroom, he immediately starts asking, I want to make a statement.

I believe, also, that what Sergeant Taylor said also [on the audiotape] contradicts Sergeant Bingley, who was the detective. Sorry. Sergeant Taylor stated on the tape, that you can clearly hear, “It’s okay; we don’t want your statement anyway; we have everything; points to you.” The way he made that sound, it was saying—it sounded as though he was responding, you know, you didn’t give a statement; we don’t need your statement anyway; because of all this evidence we already have against you, we don’t need your statement, which is, I think, a reasonable person would say, well, if you don’t need my statement, maybe I should give you my statement to tell my side of the story, ⁵²⁸ because everything you have against me is a lie. That is what went through Mr. Henry’s head.

That is what he testified to. That’s what he felt was that way. The court held the motion sub curia and the next day granted it in part and denied it in part. The court announced its ruling on the record, finding that the appellant initially invoked his right to counsel and that anything he said thereafter to Detective Prince would be suppressed and that the photographs of the appellant’s arms taken after the photographer asked about any other injuries, and the appellant’s remarks to the photographer, also would be suppressed.

The court ruled not to suppress the statements made by the appellant after the return from the bathroom, however, making the following factual findings concerning what took place during that trip: The defendant’s testimony was not credible. The story changed on cross-examination. It was contradicted credibly by Sergeant Bingley, who testified that defendant asked to talk after asking if he had been charged in this case. As well, in the [audiotape] recorded testimony of Officer Taylor, the officer said the opposite of that which is alleged by the defendant [i.e., what could be heard as words spoken by Sergeant Taylor on the audiotape].

The court reasoned that the State had proven that the appellant had waived his prior request for counsel “by initiating the request to make a statement” and that Sergeant Taylor had not engaged in activities that were reasonably likely to elicit an incriminating response. The court found “that the State has met its burden of proving that the defendant validly waived the earlier request for an attorney by subsequently initiating requests and repeatedly asking to tell his version of what happened.” The court discounted Sergeant Taylor’s remark (on the audiotape, as the three were re-entering the interview room) that the appellant should not talk, and that the police would be unable to use any statements, in light of the defendant’s invocation of his right to counsel, ruling that it did not ⁵²⁹ constitute the functional equivalent of an interrogation. The court distinguished the case from Blake on several grounds, including that Blake was only 17 years old and uneducated, that he had been given charging documents that mistakenly said he was facing the death penalty, and that the officer in Blake was “confrontational.” B. Analysis “It is established law that once a defendant, ‘detained in a custodial setting, has asserted his right to counsel, all interrogation must cease until an attorney has been furnished to consult with him or he initiates further communication, exchange or conversations.’ ” Williams v. State, 342 Md. 724, 760 , 679 A.2d 1106 (1996) (quoting State v. Conover, 312 Md. 33, 38 , 537 A.2d 1167 (1988)). See also Phillips v. State, 425 Md. 210 , 217-218 40 A.3d 25 (2012).

In the seminal case of Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , the Supreme Court explained: [W]hen an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his rights.... [A]n accused ..., having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police. Id. at 484-85 , 101 S.Ct. 1880 (footnote omitted); see also Miranda, 384 U.S. at 474, 86 S.Ct. 1602 (“If the individual states that he wants an attorney, the interrogation must cease until an attorney is present”). The Supreme Court has further explained that: The rationale of Edwards is that once a suspect indicates that “he is not capable of undergoing [custodial] questioning ⁵³⁰ without advice of counsel,” “any subsequent waiver that has come at the authorities’ behest, and not at the suspect’s own instigation, is itself the product of the ‘inherently compelling pressures’ and not the purely voluntary choice of the suspect.” Maryland v. Shatzer, — U.S.-, 130 S.Ct. 1213, 1219 , 175 L.Ed.2d 1045 (2010) (quoting Arizona v. Roberson, 486 U.S. 675, 681 , 108 S.Ct. 2093 , 100 L.Ed.2d 704 (1988)). Further: Under this rule, a voluntary Miranda waiver is sufficient at the time of an initial attempted interrogation to protect a suspect’s right to have counsel present, but it is not sufficient at the time of subsequent attempts if the suspect initially requested the presence of counsel.

The implicit assumption, of course, is that the subsequent requests for interrogation pose a significantly greater risk of coercion. That increased risk results not only from the police’s persistence in trying to get the suspect to talk, but also from the continued pressure that begins when the individual is taken into custody as a suspect and sought to be interrogated— pressure likely to “increase as custody is prolonged----” Shatzer , — U.S. at-, 130 S.Ct. at 1219 -20 (citing Minnick v. Mississippi 498 U.S. 146, 153 , 111 S.Ct. 486 , 112 L.Ed.2d 489 (1990)). Thus, once a suspect in a criminal case has invoked his right to counsel, “[a] constitutionally valid statement may be obtained by the police in two ways: if the suspect initiates further conversation with the police or if an attorney has been made available to the suspect.” Blake v. State, 381 Md. at 231-32 , 849 A.2d 410 . A statement obtained from the suspect will not be constitutionally valid, and therefore will not be admissible, if, after invoking his right to counsel, the suspect is interrogated or subject to the functional equivalent of interrogation.

Edwards, 451 U.S. at 484-86 , 101 S.Ct. 1880 . The functional equivalent of interrogation “refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reason ⁵³¹ ably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980) (footnotes omitted); see Drury v. State, 368 Md. 331, 337 , 793 A.2d 567 (functional equivalent of interrogation occurred when, before being given his Miranda warnings, the defendant was placed in an interrogation room, shown evidence recovered from the crime scene, and advised that these items would be tested for fingerprints), cert. denied, 537 U.S. 942 , 123 S.Ct. 341 , 154 L.Ed.2d 249 (2002). In assessing on appellate review whether a suspect was subjected to the functional equivalent of interrogation, we focus “on the defendant’s perspective rather than on the police officer’s intent.” Blake, 381 Md. at 233-34 , 849 A.2d 410 (citing Arizona v. Mauro, 481 U.S. 520, 528 , 107 S.Ct. 1931 , 95 L.Ed.2d 458 (1987)). As the discussion above makes clear, when a suspect in custody has invoked his right to counsel and thereafter makes an inculpatory statement to the police, without a lawyer present, it is presumed, under Edwards , that the statement was not voluntarily given, ie., that it was the product of interrogation or its functional equivalent and was not given as a consequence of the suspect’s initiating communication with the police.

Shatzer, 130 S.Ct. at 1219-20 (discussing the “Edwards presumption of involuntariness”). For the statement to be admissible, the State must prove by a preponderance of the evidence that the suspect initiated further discussion with the police. Blake, 381 Md. at 232 , 849 A.2d 410 . In Phillips , the Court explained our standard of review as follows: [W]e examine [the court’s denial of the defendant’s motion to suppress] based on what was alleged in the motion to suppress and the evidence admitted at the suppression hearing.

We view that evidence in a light most favorable to the State, which prevailed on the motion. That said, we must, in the end, make our own independent Constitutional ⁵³² appraisal of whether the statements were obtained in violation of law. 425 Md. at 27 , 40 A.3d 25 (citations omitted). In the ease at bar, it is undisputed that the appellant was in police custody and that he invoked his right to counsel. The appellant contends that, thereafter, he did not initiate communications with the detectives.

Rather, he was subjected to the functional equivalent of interrogation by Sergeant. Taylor, at Sergeant Taylor’s initiative, during the bathroom trip. He argues that the same principles of proof established by the Court of Appeals in Streams v. State, 238 Md. 278 , 208 A.2d 614 (1965), and Gill v. State, 265 Md. 350 , 289 A.2d 575 (1972), in the context of the voluntariness under Maryland non-constitutional law of statements made to the police by a suspect in custody, apply in this setting as well, given the Edwards presumption; and that, under those principles, there was a gap in the evidence that necessarily resulted in the State’s failing to satisfy its burden of proof. The appellant also asserts that the motion judge’s negative credibility finding was based upon a misunderstanding of the testimony.

The State responds that the motion court’s factual findings were supported by the evidence; that the argument about the applicability of Streams and Gill was not made below, and therefore is not preserved for review; and that the record discloses that Sergeant Taylor neither interrogated the appellant nor engaged in conduct that was its functional equivalent. Rather, the appellant initiated conversation with the police after he had invoked his right to counsel, thus waiving the prior invocation. The critical time frame for purposes of this issue is the approximately four minutes from when the appellant was removed from the interview room until he was returned to it, during which he and Sergeant Taylor and Lieutenant Bingley walked up the hall to the bathroom, the appellant used the bathroom in Sergeant Taylor’s presence, and the appellant and the two officers walked back down the hall and re-entered ⁵³³ the interview room. 6 At the outset of that time period, the appellant’s right to counsel had been invoked and remained so, and the police were prohibited from interrogating him or engaging in the functional equivalent of interrogation. By the end of that time period, immediately after the appellant reentered the interview room, he was saying that he wanted to speak and give “his side of the story.” The critical question at the suppression hearing was whether the State met its burden of proving that, during the bathroom trip, the appellant initiated communication with the police and that his statements therefore resulted from that initiation and not from police interrogation or its functional equivalent.

The sum total of relevant evidence at the suppression hearing about the bathroom trip was: • Lieutenant Bingley’s version: As the appellant was being escorted to the bathroom, he was asking what the charges were against him; on the way back from the bathroom, Sergeant Taylor was “leading the conversation”; the lieutenant did not remember what Sergeant Taylor was saying to the appellant; however, “[tjhe whole way down and back from the bathroom, [the appellant] was begging” to give “his side of the story.” • The appellant’s version: On the way back from the bathroom, Sergeant Taylor told him, “it’s best for [the appellant] to tell Lhis] side of the story,” that all the evidence was pointing to him, that a witness statement placed him at the scene, and that he would never see his girlfriend or his children again. • The audiotape: As Lieutenant Bingley, Sergeant Taylor, and the appellant were reentering the interview room, Sergeant Taylor was telling the appellant “it’s better that ⁵³⁴ you don’t give us your statement because all the evidence points to ... is all ours.” • Sergeant Taylor: No testimony given. The appellant argues that, in the absence of any testimony from Sergeant Taylor about what he (Sergeant Taylor) was saying to him (the appellant) during the bathroom trip, the State necessarily failed to satisfy its burden of proving that the appellant’s written and oral statements, made immediately after the bathroom trip, resulted from his initiating conversation with Sergeant Taylor and not from interrogation or the functional equivalent of interrogation by Sergeant Taylor. Specifically, although Lieutenant Bingley testified that the appellant was saying he wanted to tell his side of the story, she also testified that Sergeant Taylor was “leading the conversation” during the bathroom trip and that she could not remember what the sergeant was telling the appellant. Thus, Lieutenant Bingley’s testimony showed only what she heard the appellant say (that he wanted to talk) and not what Sergeant Taylor was telling the appellant at that same time, which was crucial.

The audiotape revealed one small part of what Sergeant Taylor had said, at the very end of the conversation, but did not offer proof of what was said during the bathroom trip. Only the appellant testified about what Sergeant Taylor said to him on the bathroom trip. His testimony was unrebutted; but the trial court did not believe it. In Streams and Gill , the cases the appellant argues adopt principles of proof that apply to this case, even though they address voluntariness of confessions under Maryland non-constitutional law, the Court of Appeals held that evidence of involuntariness must be rebutted for the State to meet its burden of proof.

In Streams , at a hearing on a motion to suppress, the defendant testified that he confessed after Sergeant Tabeling and Officer Butler told him: [I]t would be better for him if he made a statement because if he did they would try to get him put on probation [and that] Officer Butler told him if he did not sign a statement ⁵³⁵ “ * * * he’d throw the book at me, get me more time, that’s all.” Streams, 238 Md. at 281 , 208 A.2d 614 . The State did not call any witnesses to rebut the defendant’s testimony about what the officers said to him before he confessed. The motion court denied the motion to suppress and the confessions were admitted into evidence. On appeal after conviction, the Court of Appeals reversed, holding that, without putting on evidence to rebut the defendant’s testimony, the State had failed, as a matter of law, to meet its burden of showing that the confessions were voluntary.

The Court explained: After Streams testified, the State chose not to refute his claim that he was promised official help in getting probation if he confessed—which to him could have been fully consistent with and have buttressed the statement he would be taken home after being questioned—nor did it then choose to specifically deny his claim that Officer Butler threatened him with long sentences if he did not confess. We think the State’s failure, after Streams left the stand, to go forward with testimony which would refute his claim of promises and threats and to show the conduct of the police during the period he was in custody of the arresting officers was enough under the circumstances of this case to require a holding that the judgments appealed from must be reversed because the State did not meet its burden of establishing the voluntariness of the confessions as a prerequisite to their admission in evidence. Id. at 282-83 , 208 A.2d 614 . The case was remanded for a new trial.

The opinion says nothing about whether the motion court believed or disbelieved the defendant’s testimony at the suppression hearing. It would appear that the motion court did not believe the defendant; but it also would appear from the Court’s holding that the motion court’s credibility assessment against the defendant would make no difference in the outcome. Without rebutting the defendant’s testimony, even ⁵³⁶ if the testimony was not credible, the State failed to meet its burden of proof. In Gill , the defendant claimed that his confession was induced by Detective Hyson in that, when they were alone, Detective Hyson threatened him by saying that the police would arrest his girlfriend if he did not confess.

Although the defendant’s testimony generally was repudiated by another detective, Detective Hyson did not testify. The confession was ruled admissible and the defendant was convicted. Ultimately, the Court of Appeals reversed and remanded for a new trial. It explained: [B]efore a suspect’s statement can be received in evidence the State has the affirmative duty of showing it was freely made and not the product of promises or threats.

This does not require that each person who had casual contact with the accused, once he was in police custody or being interrogated, must testify to the voluntariness of the confession in order for the prosecution to satisfy its burden. But when it is contended that someone employed coercive tactics to obtain inculpatory statements, the charge must be rebutted. Here it is claimed the inducement occurred while Gill was alone with Hyson. Since it is uncontradicted that the suspect was in fact in the sole presence of this police interrogator, that specific person must rebut the allegations of coercion as no one else is qualified to do so.

Gill, 265 Md. at 358-54 , 289 A.2d 575 . Streams and Gill remain good law. See Hill v. State, 418 Md. 62 , 81 n. 5, 12 A.3d 1193 (2011) (“Our cases make plain that, when a defendant testifies that the police used coercive tactics to obtain inculpatory statements, the State must rebut the defendant’s testimony.”); Knight v. State, 381 Md. 517, 532 , 850 A.2d 1179 (2004) (stating that, “[w]hen a criminal defendant claims that his or her confession was involuntary because of a promise made to him or her by the interrogating officers, the State must present evidence in order to refute the claim.”); Winder v. State, 362 Md. 275, 306 , 765 A.2d 97 (2001) (stating that, when a pretrial suppres ⁵³⁷ sion motion is filed on the issue of voluntariness of a confession, the State bears the burden of proving by a preponderance of the evidence that “the inculpatory statement was freely and voluntarily made and thus was the product of neither a promise nor a threat.”)- It is implicit in the opinions in these cases that the credibility of the defendant’s testimony at the suppression hearing is not an issue unless the State has met its initial burden of putting on evidence to rebut what the defendant testified to.