Hoerauf v. State

WOODWARD, J. On November 22, 2006, a jury sitting in the Circuit Court for Montgomery County found appellant, Devin Hoerauf, guilty of four counts of robbery. On appeal, appellant presents four questions for our review, which we have rephrased: 1. Did the trial court err in denying the motion to suppress appellant’s statement to police? 2. Did the trial court abuse its discretion in removing juror number 8? 3.

Did the trial court commit plain error by failing to take any action when the State commented on appellant’s demeanor during rebuttal closing argument? 4. Did the trial court abuse its discretion in propounding the pattern jury instruction on flight? We shall answer “yes” to question 4 and reverse and remand for a new trial. For the benefit of the trial court on remand, we will address question 1, because it relates to the admissibility of appellant’s statement to the police.

A new trial, however, obviates the necessity of answering questions 2 and 3. BACKGROUND 1 This case arises out of an incident that took place on June 13, 2006. Kyle Phillips, who was sixteen years old at the time, testified at trial that in the early afternoon of June 13, 2006, he was at the MARC station in Germantown with his friends, Jonathon Bruff, Matthew Pedmonte, Thomas “Tony” Rouse, Gary Schneider, and Ryan Schneider. They were BMX biking, or “[tjrick riding.” When another group of individuals walked by, one of them turned around and asked Phillips and Pedmonte: “Do you have a dollar?” Phillips testified that he ²⁹⁸ responded: “No, do you have a dollar?”, after which members of the other group “started getting hostile,” saying “so you want to fight us[?]” Phillips recounted that the group of individuals left Phillips and his friends, but returned ten or fifteen minutes later in a larger group, now comprising about ten individuals.

The group approached Phillips and walked up to the bikes, “say[ing] stuff like these are nice bikes, and starting] to pick them up.” When someone picked up one of the more expensive bikes, Phillips “said something” and “then [] got hit.” Phillips identified appellant as one of the individuals in the larger group. According to Phillips, although appellant was with the others in the larger group, Phillips did not see appellant strike anyone directly. During the fight, however, when one of the victims picked up a wrench, appellant walked towards him, “like he was going to hurt him,” and said, “you put that wrench down now” in a “very threatening way.” The fight lasted for about five or ten minutes, after which the group of individuals started to walk away with the bikes belonging to Phillips and his friends. Phillips testified that appellant “was one without a bike.” Gary Schneider, according to Phillips, asked appellant: “Hey, can we get our bikes back[?],” to which appellant replied: “I don’t know what I can do about it, but I’ll see.” 2 Appellant walked off towards the group and was seen talking to them.

The bikes were not returned. James Roberts testified that on June 13, 2006, he was with Maurice Graham and Steve Yax while they were on their way to 7-Eleven to meet appellant, after which they were going to take the bus to Lake Forest Mall. Roberts, who was fifteen years old at the time, was the individual who asked Phillips for a dollar, the cost of the bus fare to the mall. Phillips’ response made Roberts angry, but all three proceeded to walk away from Phillips and his friends.

When they got to 7- ²⁹⁹ Eleven, Yax told appellant, who was with his girlfriend, what happened and all five individuals walked back to the MARC station. Roberts testified that he did not see appellant during the fight. When they left the fight, Roberts testified that he remembered looking behind him and seeing appellant walking with his girlfriend. According to Roberts, about ten or fifteen minutes after the fight, the group was stopped by the police.

In a statement to police, admitted into evidence at trial, Roberts stated that he and the others, including appellant, were involved in hitting the victims. 3 Roberts also told police that the victims were ordered to empty their pockets. The group took two bikes and threw Phillips’ bike over a bridge onto the railroad tracks below. In addition to the damage to his bike, Phillips had his wallet, which contained $10, taken from his back pocket during the fight. “When the wallet was recovered, the $10 was missing. Rouse’s cell phone, MP3 player, and wallet, which did not contain any money, were taken from him.

The group also took $15 in cash and a $50 Best Buy gift card from Pedmonte. Police caught up with appellant, Roberts, Yax, and Graham as they were walking through a nearby neighborhood to Lake Forest Mall. Other officers arrived with the victims to conduct a showup identification. The victims positively identified appellant and the three other individuals.

A MP3 player, apparently belonging to Rouse, was found in Yax’s pants pocket. At the police station, appellant provided the following statement, which was introduced at trial: I called Steve Yax, a black Spanish male, long hair, braids, on my phone. He told me to meet him at the 7-Eleven in Germantown. I took the bus and met him.

He wasn’t at the 7-Eleven. I went to the train station and met Steve Yax. Steve asked me if I wanted to wreck[ 4 ] ³⁰⁰ * * * Steve told me he asked some young dude on the bike for a dollar. The dude got smart with Steve so Steve wanted to fight.

I walked up to the 7-Eleven with Steve and saw the kids Steve was talking about. They were on bikes. Steve and the other guys I was with started fighting. I walked off.

I walked up to the Rolling Hills with Steve. I don’t know the other two kids I was with. They were black males. I guess they were friends of Steve’s.

One girl was •with us. I don’t know her name. Steve was talking about robbing people. He taiks about robbing Hispanics because they have money and get drunk.

We will set forth additional facts and proceedings below as necessary to discuss the questions presented. DISCUSSION I. Suppression Hearing At the suppression hearing, Detective Mike Sofelkanik of the Montgomery County Police Department testified that on June 13, 2006, he met -with appellant, who was seated in an interrogation room in the office of the Germantown Investigative Station. 5 During his testimony, Detective Sofelkanik was questioned about what took place when he entered the room: [THE PROSECUTOR]: Okay. When you initially identified yourself, what did you tell him with regard to why you were there and why he was there? [WITNESS]: I identified myself as a detective with the Montgomery County Police and that I wanted to discuss why he was there. He understood that he was under arrest and I wanted to—I told him I was a finder of facts and I ³⁰¹ just wanted to hear if he had anything to say, and if he wanted to talk to me. [THE PROSECUTOR]: And how did he respond to that? [WITNESS]: He agreed to speak to me, and then I advised him that prior to giving me any specifics on the case, I needed to advise him of his constitutional rights.[ 6 ] [THE PROSECUTOR]: Can you walk us through—you’ve introduced yourself, you told him he was under arrest, that you were going to try to find some facts and then you begin to do what? [WITNESS]: After he was aware of who I was and he felt, what I thought felt, comfortable and he knew who I was and kind of an ice breaker.

Just to let him know that I was not the arresting officer. That he was there, that I would like to speak to him and he felt comfortable. It seemed like he was comfortable. I then advised him that I could not ask him any questions in reference to the case prior to reading him his Advice of Rights form. [THE PROSECUTOR]: Okay, and how did he respond to you at that point in time? [WITNESS]: He said—basically I read the rights to him and he responded in a normal— [THE PROSECUTOR]: Okay, would you— [WITNESS]:—fashion.

Nothing out of the ordinary. [DEFENSE COUNSEL]: All right. Now when—you testified on direct examination, number one that you told him that you were a “fact finder”? [WITNESS]: Yes. ³⁰² [DEFENSE COUNSEL]: Okay, and that was before you read him the rights. Is that correct? [WITNESS]: Yes. * * * [DEFENSE COUNSEL]: Didn’t you tell [the prosecutor], on direct examination, “I said I was a fact finder. I asked him if he wanted to speak to me.

He said yes. And then I read him his rights.” Didn’t you say that on direct examination? [WITNESS]: I asked him why—I asked him that [sic] I was there, I was a “fact finder” and that my job was a detective and I had to read him these rights prior to asking him any questions about the event. Now as far as talking to him and asking if he wanted to talk to us prior to reading him that? It’s very possible I said that, yes. [DEFENSE COUNSEL]: Okay, all right, and he said, “Yes” when you asked him if he wanted to talk to you.

That’s what you said to [the prosecutor] on direct right? [WITNESS]: Okay. Detective Sofelkanik also testified as to the rights he read appellant: [THE PROSECUTOR]: Detective, would you demonstrate for the Court how it is you advised [appellant] of his rights on June 13, 2006. [WITNESS]: Yes____ He’s sitting across from me at a table and I advised him prior to me questioning him. I was required to advise him of his constitutional rights. That basically that I’m not allowed to ask you any questions until I advise you of the following directions.

And I asked him if he understood that. He verbally stated that he did and then I proceeded to—and we have a form, it’s the Advice of Rights, it’s the MCP-50 form. We don’t stray from that. It’s the same form that we use every time in Montgomery County. ³⁰³ According to Detective Sofelkanik, he read appellant his rights “right from the form.” 7 It appeared to the detective that appellant understood his rights, and when he specifically asked whether appellant understood what was just said to him, appellant responded, “Yes.” 8 Detective Sofelkanik did not recall that appellant ever asked him to explain anything.

When the detective finally asked appellant, “[D]o you want to talk to us at this time[?],” appellant responded, “Yes.” Thereafter, both Detective Sofelkanik and appellant signed the form. Detective Sofelkanik also put his initials next to each question that he read to appellant. Regarding appellant’s right to an attorney during questioning, Detective Sofelkanik testified that appellant said that “[h]e did not want an attorney. He agreed to speak to us.” When questioned, the detective further explained: [THE PROSECUTOR]: Did he at any time during the course of your reading him his is [sic] MCP-50, State’s Exhibit No. 1 the Advice of Rights, or at any time thereafter, invoke his right to remain silent? [WITNESS]: No, and again if he would ask for an attorney, at that point I would not continue the interview; I’m required to provide him with an attorney. [THE PROSECUTOR]: Did he agree to answer your questions without an attorney being present? [WITNESS]: Yes.

He did. ³⁰⁴ Detective Sofelkanik testified that, after reading appellant the form, he wrote as appellant dictated a statement of what occurred on June 13, 2006. He testified further that after the statement was transcribed, appellant made a few corrections that both he and appellant initialed. Appellant then signed each page of the two-page statement. Appellant testified that he was first handcuffed to a table and fingerprinted, and then placed in a holding cell for several hours prior being escorted to the interrogation room.

According to appellant, when he was seated at a table during fingerprinting and while in the holding cell, he requested to call his mother, an attorney: [DEFENSE COUNSEL]: Now when you were seated at the table where they were taking fingerprints, did you make any requests to anybody in the police station? This is before you went into the holding cell. Did you make any requests to anybody about anything? [WITNESS]: Just to call my mother. [DEFENSE COUNSEL]: And who [sic] did you make that request to? [WITNESS]: One of the officers, I’m not sure—I don’t remember the names or anything. [DEFENSE COUNSEL]: Did you mention to one of those officers that your mother was a lawyer? [WITNESS]: Yes. [DEFENSE COUNSEL]: And what did the officer say? [WITNESS]: That I’m supposed to wait until after I go to CPU and see the commissioner and such. [DEFENSE COUNSEL]: How many times did you mention that, that you wanted to call your mother or you wanted them to call your mother before you were put in the holding cell? [WITNESS]: Several times. [DEFENSE COUNSEL]: All right. In the holding cell, did somebody come to talk to you while you were still in there? ³⁰⁵ [WITNESS]: Yeah, one of the officers. [DEFENSE COUNSEL]: Okay, was it the same one that took the fingerprints? [WITNESS]: I’m not— [DEFENSE COUNSEL]: Pardon? [WITNESS]: Fm not sure. [DEFENSE COUNSEL]: Okay.

Did you talk to that person that came to see you in the holding cell? [WITNESS]: No, I just asked him some questions. [DEFENSE COUNSEL]: What questions did you ask him? [WITNESS]: Like what was going on, and am I allowed to leave. Like, if everyone in the place says I didn’t do anything, because I didn’t do anything, they would let me out right there and she said, “No.” And then I asked to call my mother— [DEFENSE COUNSEL]: What’s that? [WITNESS]: And then I asked to call—mother’s a lawyer and they said they can’t do anything. [DEFENSE COUNSEL]: All right, and that’s when you were in the holding cell? [WITNESS]: Uh-huh. [DEFENSE COUNSEL]: Is that a “yes”? [WITNESS]: Yes. On cross-examination, appellant testified that he could not remember whether he asked Detective Sofelkanik for his mother, an attorney, while he was in the interrogation room: [THE PROSECUTOR]: So when Detective Sofelkanik comes in, Detective Sofelkanik comes in, right, he introduced himself to you? [WITNESS]: Yeah. [THE PROSECUTOR]: The detective that just testified? [WITNESS]: Yeah. [THE PROSECUTOR]: Okay. Did you tell him you wanted to speak to your mother? [WITNESS]: Possibly, I don’t really remember. ³⁰⁶ [THE PROSECUTOR]: You don’t remember, do you? [WITNESS]: I tried to block it out I guess.

It was an unpleasant memory. [THE PROSECUTOR]: You don’t know who you told that you wanted to speak to you [sic] mother; you don’t know when you told them you wanted to speak to your mother and you wanted to speak to your mother because she’s your mother, is that right? [WITNESS]: Yeah, and also she’s a lawyer. When questioned as to whether the officer informed appellant of his rights, appellant stated, “[n]ot in particular. He probably did though.” Appellant testified that he signed and initialed the statement dictated to Detective Sofelkanik and conceded that the detective was telling the truth that appellant reviewed and made changes to his statement. A. Standard of Review When reviewing a circuit court’s disposition of a motion to suppress evidence, we “consider only the facts and information contained in the record of the suppression hearing.” Longshore v. State, 399 Md. 486, 498 , 924 A.2d 1129 (2007). “ ‘[W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion,’ ” in this case, the State.

Owens v. State, 399 Md. 388, 403 , 924 A.2d 1072 (2007) (quoting State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003)). We defer to the trial court’s factual findings and uphold them unless they are shown to be clearly erroneous. Id. We also make our “ ‘own independent constitutional appraisal,’ ” by reviewing the relevant law and applying it to the facts and circumstances of this particular case.

Longshore, 399 Md. at 499 , 924 A.2d 1129 (quoting Jones v. State, 343 Md. 448, 457 , 682 A.2d 248 (1996)). ³⁰⁷ B. Prior Questioning in Violation of Miranda Relying on Missouri v. Seibert, 542 U.S. 600 , 124 S.Ct. 2601 , 159 L.Ed.2d 643 (2004) and Cooper v. State, 163 Md.App. 70 , 877 A.2d 1095 (2005), appellant argues that Detective Sofelkanik committed “a patent violation” of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), by asking appellant if appellant would agree to speak to him and answer questions prior to administering the Miranda warnings. Appellant contends that Detective Sofelkanik “effectively obtained from [a]ppellant his commitment to speak about the crime prior to advising [a]ppellant of his [Miranda rights].” This commitment to speak, appellant argues, “created the impression that the interrogation was underway and that the advice of rights to follow was a mere formality.” Because a reasonable person in appellant’s circumstances would have understood that the agreement to cooperate could not be revoked, appellant argues that his “subsequent waiver of Miranda rights cannot be considered voluntary and the statement that followed should not have been admitted against him at trial.” In response, the State asserts that Seibert and Cooper are inapplicable because Detective Sofelkanik “never asked any questions or elicited any incriminating statements from [appellant] prior to advising him of his rights.” In denying the motion to suppress, the court ruled: I’ve looked at the Seibert case. And it deals with, as you were saying, it deals with a situation where the police basically had a practice, they had a protocol where they would specifically not advise people prior to getting a confession. And then having gotten a confession, they would go ahead and do the advice of rights and then re-get the confession.

And so it really, as they say, it deals with the midstream recitation of warnings, after interrogation, unwarned confessions have occurred. ³⁰⁸ In our case the statement was made that [Detective Sofelkanik] was going to be asking [appellant] questions, and asked [appellant] if he would speak. But there was no confession. There was no interrogation. There was no followup to that.

And I don’t find that it was, as in the Missouri v. Seibert case, it was a willful protocol that the police used for the purpose of getting a confession. I don’t find that anything the detective did was a willful violation of Miranda. In Miranda , the Supreme Court held 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.” 384 U.S. at 444 , 86 S.Ct. 1602 . Custodial interrogation refers to “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Id.

When a suspect is in custody, “[p]rior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.” Id. A person may waive the effectuation of his or her Miranda rights, “provided the waiver is made voluntarily, knowingly and intelligently.” Id. It is well established that Miranda warnings are not required in the absence of interrogation. Ashford v. State, 147 Md.App. 1, 37 , 807 A.2d 732 (2002) (citing Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980)); see Marr v. State, 134 Md.App. 152, 173 , 759 A.2d 327 (2000) (“ ‘[I]t is clear ... that the special procedural safeguards outlined in Miranda are required not where a suspect is simply taken into custody, but rather where a suspect in custody is subjected to interrogation.’ ” (alteration in original) (quoting Innis, 446 U.S. at 300 , 100 S.Ct. 1682 )). “Interrogation” under Miranda “refers ... to any words or actions on ³⁰⁹ the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response.” Innis, 446 U.S. at 301 , 100 S.Ct. 1682 .

An incriminating response is one “whether inculpatory or exculpatory—that the prosecution may seek to introduce at trial.” Id. at 301 n. 5, 100 S.Ct. 1682 . The motions court in the instant case determined that there was “no interrogation” within the meaning of Miranda. 9 We agree. Detective Sofelkanik asked appellant only whether appellant “wanted to talk to me.” This question was not “reasonably likely to elicit an incriminating response,” nor did it do so. See Innis, 446 U.S. at 301 , 100 S.Ct. 1682 .

Appellant simply answered “yes”, at which point Detective Sofelkanik advised appellant that he could not ask appellant any questions until he advised appellant of his constitutional rights. It was only after Detective Sofelkanik (1) read appellant his Miranda rights using the MCP-50 form, (2) obtained appellant’s acknowledgment that he understood those rights, and (3) learned that appellant was willing to talk, that Detective Sofelkanik questioned appellant about the incident. Moreover, Detective Sofelkanik testified that the purpose of his initial question was “kind of an ice breaker.” He said: “Just to let [appellant] know that I was not the arresting officer. That he was there, that I would like to speak to him and he felt comfortable.” Finally, we observe that Detective Sofelkanik’s question also had a practical purpose—if appellant had indicated no desire to talk, there would have been no realistic reason for Detective Sofelkanik to proceed with reading appellant his Miranda rights in an effort to secure a statement.

It would have been highly unlikely that, after ³¹⁰ refusing to talk, appellant would have changed his mind upon being advised of his Miranda rights. Even assuming that Miranda applies to the case sub judice, we conclude that there was no violation of its procedural safeguards. Appellant’s reliance on Seibert and Cooper in this regard is misplaced. In Seibert , the Supreme Court struck down a two-step, “question-first” interrogation technique employed by police in that ease. 542 U.S. at 604, 612 , 124 S.Ct. 2601 .

The police protocol at issue in Seibert called for the purposeful withholding of Miranda warnings until police interrogation produced a confession. Id. Following the confession, the police officer would administer the Miranda warnings and then question the suspect again to elicit the same confession. Id.

Although the first confession, obtained pre-Miranda warnings, was inadmissible, the second confession was ostensibly admissible in court. Id. The Court in Seibert held that, when such a strategy is used, the second confession must be suppressed “because the midstream recitation of warnings after interrogation and unwarned confession could not effectively comply with Miranda’s constitutional requirement.” Id. Similarly, in Cooper , the police conducted a two-stage interrogation technique when questioning the appellant. 163 Md. App. at 74 , 877 A.2d 1095 .

The police obtained two statements during interrogation, the first unwarned and the second warned. Id. At trial, over the appellant’s objection, the State introduced only the second, warned statement into evidence. Id.

Relying on Seibert , this Court reversed the appellant’s murder and associated weapons convictions. Id. at 74, 96, 877 A.2d 1095 . The case sub judice does not present the interrogation technique condemned by Seibert and Cooper , because Detective Sofelkanik did not use the “successive interrogation” strategy employed by the police in those cases. See Seibert, 542 U.S. at 613, 124 S.Ct. 2601 ; Cooper, 163 Md.App. at 96 , 877 A.2d 1095 .

Detective Sofelkanik never obtained an incriminating statement from appellant before he administered ³¹¹ the Miranda warnings, nor did he elicit that same incriminating statement again “on the heels of the unwarned statement.” See Cooper, 163 Md.App. at 96 , 877 A.2d 1095 . Nevertheless, appellant argues that Detective Sofelkanik’s question had the effect of “obtaining] from [a]ppellant his commitment to speak about the crime prior to advising [appellant of his [Miranda rights].” The short answer to this contention is that there is no evidence in the record supporting the existence of such commitment. Appellant never testified that his affirmative response to Detective Sofelkanik’s question somehow obligated him to talk to the police after being advised of his Miranda rights. 10 Therefore, asking appellant “if he wanted to talk to” Detective Sofelkanik prior to advising appellant of his Miranda rights was not a violation of Miranda under the teachings of Seibert and Cooper . C. Request for Mother, An Attorney At the suppression hearing, appellant testified that, while being fingerprinted, 11 he made a request to an unnamed officer to “[j]ust to call [his] mother” and told the officer that his mother was an attorney.

Appellant also testified that, prior to being placed in a holding cell, he asked to call his mother “[s]everal times.” Finally, appellant testified that, while inside the holding cell, he asked another officer if he could call his mother, saying, “mother’s a lawyer,” and that the officer responded that he could not “do anything.” Appellant, howev ³¹² er, could not remember if he requested to speak to his mother, an attorney, when advised by Detective Sofelkanik of his right to an attorney before and during any questioning. Appellant argues that his statement to Detective Sofelkanik should have been suppressed because the trial judge’s finding that appellant did not invoke his right to counsel was clearly erroneous. Appellant maintains that he “plainly testified that he asked to call his mother—an attorney—several times prior to being placed in the interrogation room.” 12 In denying the suppression motion, the court made the following factual findings: All right. Well based upon the testimony that I’ve heard regarding the Advice of Rights form, in looking at Exhibit No. 1, the detective testified about the procedure that he used and the procedure he followed in advising the rights, pursuant to this form MCP-50----—it appears as though the detective followed the proper procedure in advising [appellant] of his rights. ...

There has been, according to the detective, there was never an invocation of Right to Counsel; there was never any request to stop speaking. He described the conversation as very normal. He asked questions, [appellant] responded and I think he used the word that he was “dictating” and so he wrote down the statements as best he could that [appellant] made to him. After that he gave the statement to [appellant] for review. [Appellant] looked at it, actually made changes, initialed the changes, indicating to me that he understood the statement enough that he wanted the corrections and changes made to the statement. ... [Appellant] at one point on the stand said, and I don’t believe he said clearly and specifically that he asked for a lawyer in this case.

He said that his mom was a ³¹³ lawyer. He said that he asked to speak to his mom. He’s not sure, he thinks he said that. He’s not sure who he said it to, when he said it, where he was when he said it.

So I’m not certain that he’s even certain that he said it. So based upon that I can’t find, to the degree necessary, that he invoked counsel. Given the fact that I’m not even certain that he’s certain he said it. So for that reason I’m going to find that Miranda was complied with and I’ll find that the statement was voluntarily made by [appellant].

(Emphasis added). We give great deference to a hearing judge’s factual findings, and we will not disturb them unless they are clearly erroneous. State v. Nieves, 383 Md. 573, 581 , 861 A.2d 62 (2004); see also Matthews v. State, 106 Md.App. 725, 732 , 666 A.2d 912 (1995) (“In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect to weighing and determining first-level facts.”). Applying that standard to the record before us in the instant case, we conclude that there was sufficient support in the record for the motions court’s factual finding.

The motions court determined that appellant was so uncertain as to whether he asked for an attorney that his claims were insufficient for a finding that there was a clear and specific request for counsel. Appellant could not recall to whom he made any of the requests to call his mother or whether all of his requests were made to the same officer. Appellant also could not recall if he asked Detective Sofelkanik if he could speak to his mother. Detective Sofelkanik testified that appellant never requested an attorney when he read appellant his Advice of Rights.

Both appellant’s general uncertainty and the unequivocal testimony of Detective Sofelkanik cast doubt on whether appellant ever invoked his right to counsel. Moreover, “[i]t is the trial judge who determines the credibility of witnesses when, as in a suppression hearing, he functions as the trier of fact.” Carter v. State, 80 Md.App. 686, 690 , 566 A.2d 131 (1989). The trial judge determined that ³¹⁴ appellant was not a credible witness, stating “I don’t believe [appellant] said clearly and specifically that he asked for a lawyer.” The trial judge explained: “He’s not sure who he said it to, when he said it, where he was when he said it. So I’m not certain that he’s even certain that he said it.” Therefore, there is “competent evidence to support the trial court’s factual finding[]” that appellant never invoked his right to counsel.

See Fuge v. Fuge, 146 Md.App. 142, 180 , 806 A.2d 716 (2002) (“If there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.”). Nevertheless, appellant asserts that the trial court was clearly erroneous because appellant’s “only uncertainty” in invoking his right to counsel “pertained to whether he had asked Detective Sofelkanik if he could place a telephone call to his mother.” Appellant contends that, although he “did not remember the names of the individual officers to whom he made the requests, [ ] he never wavered in his account that the requests were repeatedly made.” In so arguing, appellant refers us to appellant’s testimony that he asked to speak to his mother, an attorney, several times before he was placed in the holding cell and once while he was in the holding cell, all of which occurred prior to being placed in the interrogation room and questioned by Detective Sofelkanik. Even assuming that the trial court’s factual finding was clearly erroneous, appellant still cannot prevail under the law. In McNeil v. Wisconsin, 501 U.S. 171, 182 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991), the Supreme Court held that an accused’s invocation of his Sixth Amendment right to counsel at a bail review hearing did not constitute the invocation of the accused’s Miranda right to counsel under the Fifth Amendment.

Writing for the Court, Justice Scalia discussed, among other things, “this Court’s jurisprudence relating to the Fifth Amendment guarantee that ‘[n]o person ... shall be compelled in any criminal