Hiligh v. State

WILNER, J. In November, 1995, petitioner was convicted by a jury in the Circuit Court for Prince George’s County of armed robbery and related offenses. Those convictions grew out of the robbery of Adrienne Plater that occurred at a Marriott Hotel on February 22, 1995, which we shall refer to as the Marriott ⁴⁵⁹ Hotel robbery. Because of proceedings pending against him in one or more other counties, sentencing was delayed until August 1, 1997, at which time he was sentenced to fifteen years for the robbery and a consecutive five years for use of a handgun in the commission of a felony. The Court of Special Appeals affirmed the judgment.

In April, 1999, petitioner sought post conviction relief, claiming ineffective assistance of counsel at his trial. That claim centered on a confession petitioner made to the police during an extended series of interrogations following his arrest on March 20, 1995. His attorney did seek to have the confession suppressed on the ground that it was involuntary, but he failed to argue, as part of his claim of involuntariness, the coercive effect of the investigating officers’ failure to present petitioner to a District Court Commissioner without unnecessary delay, as required by Maryland Rule 4 — 212(f). Had such an argument been made, he asserted, it probably would have been successful and would have resulted in the confession being ruled inadmissible.

Thus, he claimed, both prongs of Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984) — deficient performance and prejudice — were satisfied, and he was entitled to a new trial. The Circuit Court for Prince George’s County agreed with him and ordered a new trial. The State sought and was granted leave to appeal, and the Court of Special Appeals reversed, holding that he had not been prejudiced by his trial attorney’s performance, even if, arguendo, it was deficient. We granted certiorari and shall reverse the judgment of the Court of Special Appeals.

BACKGROUND Most of the relevant facts are contained in two unreported opinions of the Court of Special Appeals growing out of petitioner’s convictions in Prince George’s and Howard Counties, Hiligh v. State, No. 1227, Sept. Term 1997 (Opinion filed June 5, 1998) (Prince George’s County), and Hiligh v. State, Nos. 314 and 315, Sept. Term 1996 (Opinion filed Jan. 9, 1997) ⁴⁶⁰ (Howard County). The parties have stipulated that the facts recounted in those opinions are accurate, so we shall borrow liberally from them. In the early part of 1995, police were attempting to locate two African American men who were suspected of carrying out a number of robberies in Prince George’s, Anne Arundel, Howard, and Charles Counties, as well as in the District of Columbia and in Arlington, Virginia. One of the men had been identified as Terrence Maith.

On March 18, Corporal Kane, of the Prince George’s County police, noticed a black Acura automobile, that had been reported both stolen and used in several recent robberies, parked at a hotel. As he called for assistance, he saw two African American men and two women enter the hotel. Before he was able to block escape routes from the parking lot, however, the men became aware of the police presence and fled, one in the Acura and the other in a green Lexus. A high-speed chase proved unsuccessful, but the police learned from the women that the man driving the Acura was “Terry” and the one in the Lexus was “Bo.” The women also gave a pager number for “Bo.” The hotel advised that the men were registered under the name of Terrence Maith, who had given an address of 4505 Rena Road.

With the information that they had, the police obtained a warrant for Maith’s arrest and set up surveillance at the Rena Road address. On March 20, they saw two young black men leave Maith’s apartment and enter a Cadillac registered to Maith. The men drove to an adjacent lot, got out of the Cadillac, entered a green Lexus, and drove off. The police attempted to follow but again were unsuccessful, so they returned to the parking lot near- Maith’s home.

While there, they saw the Acura, which they confirmed had been reported stolen. Later that evening, around 9:00 or 10:00, two black males returned on foot; one entered the Acura, the other got into Maith’s Cadillac, and they both drove away. The police followed both cars, which stopped at a traffic light and then attempted to flee when marked patrol cars arrived as backup. A chase ensued and, although the Acura got away, Officer Long eventually stopped the Cadillac.

After the driver re ⁴⁶¹ fused to exit on Long’s order, Long forcibly extracted him, causing a small cut or bruise on the back of the driver’s head. The driver, who turned out to be petitioner, had no identification, and, although he told Long that his name was Kenneth Hiligh, Long assumed that, because he was driving a car registered to Maith and was without identification, he was, in fact, Maith and was pretending to be someone else. Petitioner was taken to the robbery unit at the county police station, arriving there at 10:58 p.m. on March 20, 1995. Detective Straughan, who had investigated the incident at the hotel two days earlier, knew that petitioner was not Maith and referred to him as Bo.

Petitioner denied being Bo, but when Straughan dialed the pager number he had been, given for Bo, petitioner’s pager, which he still had with him, rang. A search of petitioner revealed a blue and white bandana consistent with that reportedly worn by one of the Marriott Hotel robbers. A photograph was taken of petitioner and, within an hour, an eyewitness to the Marriott Hotel robbery identified the photograph as being that of one of the robbers. At that point, petitioner was formally arrested for armed robbery. 1 The police then handcuffed petitioner to a one-foot cable connected to the wall of the interrogation room and proceeded to prepare the appropriate charging documents.

Notwithstanding that those documents were completed by 3:30 a.m. and that a District Court Commissioner was on duty in the same building, petitioner was left alone in the room, except for possible trips to the bathroom, until about 7:15 the next morning, when Detective Bailey arrived and took him to Prince George’s County Hospital for treatment of his head wound. The injury proved minor, and petitioner was returned to the interrogation room at about 8:35 a.m. After giving petitioner his Miranda warnings and obtaining a written waiver, Detective Bailey and a detective from Anne Arundel County conversed with petitioner for several hours in ⁴⁶² an attempt to “build a rapport” with him. That was part of Detective Bailey’s modus operandi — to “take a couple of hours” to get background information and build a rapport.

At 1:23 p.m. on March 21, petitioner signed his first inculpatory statement, admitting to involvement in one or more robberies. He then requested, and was given, food. Questioning turned to the Marriott Hotel robbery, and at 1:55 p.m., petitioner signed a statement admitting involvement with Maith in that one as well. That is the confession at issue here.

Additional statements were taken at 2:51 p.m., 3:18 p.m., and 4:45 p.m. One final statement was given, but the record does not indicate a time. Each statement was typed in petitioner’s presence and was read, initialed, and signed by him. It appears that the initial questioning concerned robberies in Prince George’s County.

By 6:00 p.m., the questioning had been turned over to detectives from Anne Arundel and Howard Counties with respect to robberies in those counties. At 10:30 p.m., 23 hours and 32 minutes after he was first brought to the station, petitioner was taken before a District Court Commissioner. As a result of the evidence gained, petitioner was charged in Prince George’s County with armed robbery and use of a handgun in the commission of a felony with respect to the Marriot Hotel robbery, and he was charged in Howard County with two additional armed robberies. The Prince George’s County case was tried first, in late October-early November, 1995.

Counsel in the Prince George’s County case filed a general omnibus motion, in which he moved, among other things, to suppress “any and all evidence obtained by the State in violation of the defendant’s rights as guaranteed by the 4th, 5th, 6th, and 14th Amendments to the Constitution of the United States and the Maryland Declaration of Rights,” without specifying what, in particular, he wanted suppressed or giving any reasons why suppression was justified. The State responded that any statement made by petitioner was freely and voluntarily given and, to the extent it was the product of ⁴⁶³ custodial interrogation, the statement was made after petitioner had been fully informed of his Constitutional rights and had made a knowing and intelligent waiver of those rights. At the hearing on the suppression motion, Detective Bailey testified to the facts set forth above with respect to his taking petitioner to the hospital and his later interrogation of him when they returned to the police station. Petitioner then testified that he was physically abused — beaten and choked— that he was threatened, that he had asked for a lawyer and been denied one, and that he was otherwise mistreated in a variety of ways.

On the strength of that testimony, counsel argued that his statements were involuntary. Although he complained about the length of time petitioner was held as part of an additional argument that the arrest was invalid, he never complained about petitioner’s having been held in violation of Rule 4 — 212(f) as that might bear on the voluntariness of his various confessions. 2 Obviously attaching no credibility to petitioner’s testimony, the court denied the motion to suppress the statements. The evidence adduced at the suppression hearing bearing on the confession to the Marriott Hotel robbery was repeated and admitted at trial, except that petitioner did not testify. At the end of the State’s case and again at the end of the entire case petitioner renewed his motion to suppress the confession, which had already been admitted.

No complaint was made in either instance about a violation of Rule 4-212, or the effect that any unnecessary delay in presenting petitioner to a ⁴⁶⁴ District Court Commissioner may have had in inducing the confession. Those motions were denied. In its instructions to the jury, the court noted that evidence had been admitted regarding a statement made to the police, and it informed the jury that the State must prove beyond a reasonable doubt that the statement was freely and voluntarily made. The court instructed that, to be voluntary, the statement must not have been compelled or obtained as a result of any force, promises, threats, inducements, or offer of reward, and that, in making its determination, the jury was to consider all of the circumstances surrounding the statement, including, among other things, the length of time that the defendant was questioned.

Nothing was said about the effect of any delay in presentment, because no such instruction had been requested. Nor did defense counsel, in his argument, mention any delay in presentment. His argument as to voluntariness, even in the absence of any supporting testimony from petitioner, was that petitioner had been beaten and that he had been denied food and hospital treatment until he confessed. On November 2, 1995, the jury convicted petitioner of armed robbery and use of a handgun on the commission of a crime of violence.

Sentencing, however, was delayed. In February, 1996, petitioner was tried in the Circuit Court for Howard County and convicted of two other armed robberies occurring in that county. Those convictions rested in large part on confessions petitioner made to Howard County Detective McGlynn, who had joined Detective Bailey at the Prince George’s County police station on March 21,1995. Detective McGlynn, who was investigating a robbery that had occurred in January, 1995, testified that he arrived at the Prince George’s County police station at about 7:00 on the morning of March 21, 1995, but that he did not enter the interrogation room until 6:00 that evening.

Detective Bailey, from Prince George’s County, and Detective Young, from Anne Arundel County, were already in the room with petitioner. McGlynn introduced himself, asked if petitioner was willing to talk, and, when petitioner responded affirmatively, ⁴⁶⁵ McGlynn read him his Miranda rights and obtained a written waiver of those rights. Petitioner then confessed to participating in an armed robbery that matched the one McGlynn was investigating. Detective Young typed a question and answer statement, which petitioner initialed and signed.

McGlynn said that the questioning began about 6:15 p.m. and that the written statement was completed by about 7:15. Only brief snippets from the Howard County trial are in the record before us. It appears, however, and is not denied by the State, that defense counsel in that case moved to suppress the statements as involuntary, arguing, among other things, that the delay in presentment following petitioner’s arrival at the police station at 10:58 p.m. on March 20, was unnecessary and therefore a violation of Maryland Rule 4-212®, that the delay exceeded 17 hours before the statements to McGlynn were made, and that the delay was a factor to be considered in determining whether the confessions were voluntary. Petitioner’s motion to suppress was denied by the trial court and, as noted, petitioner was convicted.

The transcript of the suppression hearing in the Howard County case is not in the record before us. In petitioner’s appeal from the judgment entered in that case, the Court of Special Appeals recited that the motions judge “suspected, and the officers testifying all but confirmed, that the Prince George’s County police delayed charging [petitioner] for the purpose of his interrogation by a multitude of detectives from the surrounding jurisdictions.” Hiligh v. State, supra, Nos. 314 and 315, Sept. Term 1996, Slip Opinion at 13. Although the appellate court recognized that, under Maryland Code, § 10-912 of the Courts and Judicial Proceedings Article, mere length of detention is not dispositive, and thus appeared to reject petitioner’s argument that the long delay, coupled with the extensive interrogation, was “conclusive evidence of coercion,” it found, from the record as a whole, that the statements were involuntary. It stated: “Even if we accept the police testimony in its totality, and discount much of [petitioner’s] own testimony, as did the motions court, we remain greatly disturbed by the conduct ⁴⁶⁶ of the police.

Though the motions court was bothered by the length of the pre-charging detention and the interrogations, it felt that this was. ‘somewhat mitigated in this Court’s mind by the fact that there were substantial periods of time that Mr. Hiligh was left by himself.’ We arrive at a different conclusion.” Id. at 15. Quoting Meyer v. State, 43 Md.App. 427, 434 , 406 A.2d 427, 433 (1979), the court noted that Maryland Rule 4-212 “ ‘does not countenance a delay for the principal purpose of obtaining a statement or a confession from the defendant,’ ” and it concluded from the record that “the Prince George’s County police engaged in what amounts to a deliberate attempt to deprive [petitioner] of his right to prompt presentment to a judicial officer.” Id. at 16. The court observed that, although there might be a number of acceptable reasons for a delay in presenting a suspect to a District Court Commissioner, “it is not the purpose of section 10-912 to provide the arresting officers a twenty-four hour ‘carte blanc’ to hold and interrogate a suspect as they see fit.” Id. Thus, the court held: “As the presumption is that confessions are involuntary, this inexcusable delay, taken with the other factors present, fails to overcome this presumption.

After an examination of all the record, and especially those factors addressed by the motions court, we conclude that the conduct of the police was coercive. The admissions of both confessions were in error, and we cannot conclude beyond a reasonable doubt that the confessions did not influence the verdicts.” Id. The Court of Special Appeals opinion was filed January 9, 1997. In March of that year, petitioner moved for a new trial in the Prince George’s County case, based largely on the action of the Court of Special Appeals in the Howard County case.

He urged that his motion should be granted under the theory of res judicata. The court heard argument and, on June 10, 1997, denied the motion, noting that the issue of the voluntariness of the Marriott Hotel confession had been sub ⁴⁶⁷ mitted to the jury and that the court did not intend to substitute its judgment for that of the jury. What appears to be a confirmatory order to the same effect was filed August 7, 1997. Upon the subsequent imposition of sentence, petitioner appealed, raising the same issue of voluntariness that was raised in the appeal from the Howard County convictions, hinged mostly on his complaint about physical abuse but including as well the delay in presentment.

A different panel of the Court of Special Appeals rejected his claim that the statements admitted in the Prince George’s County case were involuntary. With respect to the delay in presentment, the court noted: “Finally, appellant argues that there is no indication in the record that he was taken to a commissioner until almost 24 hours following his detention. This claim was not preserved for our review because it was not presented to the motions judge and not considered by him. Appellant made no mention in his argument below of any delay in being taken before a judicial officer.

Accordingly, this claim has been waived by appellant.” Hiligh v. State, supra, No.