Hof v. State

BELL, Judge. Robert Alan Hof, the petitioner, was tried by a jury in the Circuit Court for Baltimore County for robbery, robbery with a dangerous and deadly weapon, assault, theft, and the unlawful use of a handgun in the commission of a felony. At the close of the evidence, the trial judge instructed the jury to consider the petitioner’s confession only if it found beyond a reasonable doubt that the petitioner had been given and knowingly and willingly waived, his Miranda 1 warnings. He also told the jury that the burden was on the State to prove, beyond a reasonable doubt, that the petitioner confessed freely and voluntarily.

The petitioner’s request that the jury be given an additional voluntariness instruction listing the several factors it had to consider in determining whether the petitioner’s confession was voluntary was denied. Having been convicted of robbery with a dangerous and deadly weap ⁵⁸⁶ on and the handgun violation 2 and sentenced to twenty-five years imprisonment without parole, the petitioner noted an appeal challenging that ruling. The Court of Special Appeals affirmed. Hof v. State, 97 Md.App. 242 , 629 A.2d 1251 (1993).

We granted the petitioner’s petition for writ of certiorari. The petitioner asks us to consider two questions: 1. Did the trial court’s jury instruction regarding the State’s obligation to comply with Miranda obviate the need for a nonconstitutional voluntariness instruction regarding the petitioner’s statement? 2. Did the Court of Special Appeals err in holding that the petitioner failed to present sufficient evidence to generate an instruction regarding the voluntariness of his confession?

I. The State’s evidence against the petitioner included a confession he made during custodial interrogation. The petitioner moved, prior to trial, to suppress that confession, contending that it was involuntary under Maryland confession law, Article 22 of the Maryland Declaration of Rights, 3 and the 5th and 14th Amendments to the United States Constitution. He also argued that it was given in violation of Miranda. As to the latter, he pointed out that he did not initial at least one right, indicating, he argued, that it was not advised or understood.

The petitioner also contended that Miranda was not complied with because, in advising the petitioner of his right to counsel, the detective indicated that the right applied prior to questioning and did not explain that it also applied during questioning. Testifying in support of the motion, the petitioner said that when he was arrested on December 18, 1990, he had a $300 a ⁵⁸⁷ day cocaine habit. Further, he stated that, on that day, he had intravenously injected three grams of cocaine, starting “early in the morning, going through the passage of the day” and that, at the time of his interrogation, at approximately 6:00 p.m., he was sick from cocaine withdrawal symptoms. He stated that he was nauseous and that “I was sick.

Ached all over”. Consequently, he asserted he was not thinking clearly at the time he gave his statement; he was “severely depressed from not having any drugs.” He further testified that when he informed Detective Gus Vaselaros, one of the interrogating officers, 4 of this, the detective told him that he would be taken to St. Joseph’s Hospital as soon as the interrogation was completed. 5 The petitioner pointed out that he was hospitalized shortly after his statement was taken. He was seen by both a psychiatrist and doctor and given “a couple of pills.” Detective Vaselaros’ testimony differed considerably from the petitioner’s. He testified that, prior to any interrogation, he advised the petitioner of his Miranda rights, using the Baltimore County Police Department’s standard rights and waiver form, 6 which the petitioner initialed and signed.

Detective Vaselaros stated that the petitioner, who was shackled in leg irons throughout the interrogation, which began at approximately 7:00 p.m. in the police captain’s office, orally confessed to the robbery of the liquor store, but refused to give a written statement. The detective stated that the ⁵⁸⁸ petitioner was taken before the District Court Commissioner between 9:00-9:30 p.m. for a bail hearing. On cross-examination, Detective Vaselaros confirmed that he took custody of the petitioner at approximately 4:30 p.m., some 2}6 hours before the interrogation. He conceded that, although it is standard procedure to have a defendant initial each of the Miranda rights, the petitioner did not initial all of them; the petitioner did not initial the one indicating that he had “an absolute right to remain silent” and could not “be compelled to answer any questions and need not assist [his] interrogators in this or any investigation.” Detective Vaselaros also conceded that the petitioner looked depressed during the questioning and had informed him of his extensive drug habit, including the fact that the petitioner had been rejected by several drug rehabilitation programs.

Moreover, he stated that he believed that the petitioner used several kinds of drugs including “coke, heroin” and “Dilaudid, Percocet [and] Percodan.” Detective Vaselaros acknowledged that he was aware, although unsure of the exact time, that the petitioner was taken to a hospital following the interrogation. Detective Vaselaros also admitted informing the petitioner that the police had obtained evidence against him in connection with the Ridgeway liquor store robbery. The motions court found that the petitioner freely and voluntarily confessed. B. Detective Vaselaros was one of the three State’s witnesses who testified at trial.

His testimony was similar to that given at the pre-trial suppression hearing. He said that: he took custody of the petitioner at about 4:00 p.m., but the interrogation did not begin until approximately 7:00 p.m.; the petitioner was advised of his Miranda rights from a standard waiver form, not all of the provisions of which did the petitioner initial; the petitioner was shackled in leg irons throughout the interrogation; the petitioner informed Detective Vaselaros of his extensive drug habit and that he had been rejected by ⁵⁸⁹ several drug rehabilitation programs; Detective Vaselaros knew that the petitioner used all types of drugs including “cocaine and all the hard street stuff as far as, and also prescription drugs, Dilaudid, Percocet, Percodan, whatever”; the petitioner confessed to the robbery of the Ridgeway Liquor store, but refused to give a written statement; and the petitioner was taken to Saint Joseph’s Hospital after the questioning. The petitioner did not testify at trial. At the close of the evidence, the trial court instructed the jury.

Because those instructions did not address the confession, the petitioner requested that they be supplemented by reading the confession instruction that he had previously submitted. 7 Although expressing concern that it was not an accurate statement of law and “a bit redundant,” the State agreed that the Court’s instruction “should include basically what the defense is requesting.” The court agreed to “give the MPJI instruction” regarding the jury’s role in determining the voluntariness of the petitioner’s confession. 8 Instead, however, the court gave the following instruction: ⁵⁹⁰ You’ve also heard evidence that the defendant confessed that he committed the crime with which he is charged or the crimes with which he is charged. You are instructed that you must be satisfied beyond a reasonable doubt that the defendant was clearly advised of each of his rights before making a confession while in custody and while undergoing interrogation; otherwise, you are to disregard the alleged confession. The defendant must have been specifically advised that he has a right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney during any questioning and that, if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires. You must be satisfied beyond a reasonable doubt that the defendant understood his rights and knowingly and willingly waived his rights prior to making a confession.

The fact that warnings were given does not automatically render a subsequent confession valid. The defendant must have knowingly and intelligently waived his rights. If such a waiver was not made, a confession made during custodial investigation is not a voluntary one. If you have a reasonable doubt as to whether the defendant was properly advised of his rights and waived or gave up those rights, then ⁵⁹¹ you must not consider the confession as part of the evidence in arriving at your verdict.

And the burden is on the State to prove beyond a reasonable doubt that the alleged confession was freely and voluntarily made. Gentlemen, that concludes my instructions. Defense counsel responded with a request for further instructions: I thank the Court for giving the instruction so far. I think the Court has to also advise the remaining aspect of the second prong; that they must determine beyond a reasonable doubt that the confession is voluntary, which under all the circumstances, is the product of a free and unconstrained will which has not been overborne or compelled.

And tell them what they have to consider—the length of time the defendant was questioned, physical and mental condition, period of time that elapsed between being advised, other persons present at the time of making the alleged confessions, all the other circumstances surrounding, including the age, background, education, experience, intelligence. And then say that the burden is on the State to prove beyond a reasonable doubt that the confession was freely and voluntarily made and without any threats, implied or direct, and that it’s not voluntary if there’s any inducement or promises of leniency, and unless this is done, that it must be disregarded. Siding with the State and ruling that the points were adequately covered, the court refused the request, noting: There is no evidence to support the additional language that you [defense counsel] referred to____ The instruction that I gave to the jury on the confession is perfectly clear. As mentioned, the petitioner was convicted and unsuccessfully appealed to the Court of Special Appeals. ⁵⁹² II.

The petitioner asserts that the trial court erroneously refused to instruct the jury, as requested, on common law voluntariness. He contends that an instruction regarding the admissibility of a confession, based solely on compliance with Miranda, does not satisfy the common law voluntariness test. He argues that the Maryland common law requires a separate and distinct voluntariness inquiry, in addition to Miranda and that the inquiry it mandates, which preceded Miranda by almost one hundred years, was not eliminated by the Supreme Court’s holding in that case. The State, on the other hand, contends that the trial court adequately instructed the jury on the admissibility of the petitioner’s confession.

It reasons that a jury instruction on compliance with Miranda obviates the need for an instruction on common law voluntariness because if the jury found that the petitioner, after proper advice, confessed only after knowingly and willingly waiving Miranda rights, it necessarily must have found the confession voluntary in the common law sense. In fact, the State argues that a Miranda instruction is the equivalent of a voluntariness instruction since a finding of a valid Miranda waiver presumes that there is no factual basis for undermining the voluntariness of the confession. That is what the Court of Special Appeals held. See Hof, 97 Md.App. at 294 , 629 A.2d at 1278 .

Concurring with the State’s reasoning, it concluded that compliance with Miranda satisfies compliance with the Maryland nonconstitutional voluntariness standard. According to the intermediate appellate court, “Miranda did not establish a new standard; it prescribed a uniform and more efficient means for implementing an old standard” in one circumstance—custodial interrogation. Id., 97 Md.App. at 267 , 629 A.2d at 1264 . It explained that Miranda first established a bright-line formula: From the very fact of custodial interrogation, the hearing judge must presume the initial presence of involuntariness/compulsion.

Compulsion no longer had to be proved on a case-by-case basis, requiring a look at the multitudi ⁵⁹³ nous influences working on each suspect and a look, as well, at the multitudinous internal factors indicative of the resilience or resistance level of each individual suspect. As a bright-line rule, such compulsion or involuntariness would now be presumed.... Miranda then established, with its familiar catechism and attendant waiver requirement, a set of easily administered “litmus paper tests,” which the prosecution would not be permitted to shortcut but which, if satisfied, would dissipate or rebut the presumptive involuntariness/compulsion. (Citations omitted).

The court then opined: [i]t is clear that the rule established in this State is in accord with the voluntariness test followed by the Supreme Court. ‘The basic standard governing the admissibility of an extrajudicial statement is whether, considering the totality of the circumstances, the statement was voluntary____ To be voluntary, a statement cannot be “extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.” ’ (citations omitted). Id. at 284 , 629 A.2d at 1272 . Moreover, the court said: Both manifestations [Maryland common law and the federal formulation] of the test sprang from the same source. There is no indication that either has mutated in any way from the prototype.

There are numerous indications that both have remained unswervingly true to the original. The definitions of voluntariness enunciated by both the Supreme Court and the Maryland courts are indistinguishable from one another, just as they are both indistinguishable from the prototypical definition. Id. at 283 , 629 A.2d at 1272 . It concluded: When only a Maryland evidentiary challenge is made, a challenged statement must satisfy the traditional voluntariness standard in the traditional way.

Where both a state and federal challenge is raised but Miranda is for some reason inapplicable, traditional voluntariness (in both guises) must be satisfied in the traditional way. Where, on the ⁵⁹⁴ other hand, both a state and federal challenge is raised and Miranda is found to have been both applicable and satisfied, the underlying traditional voluntariness standard has been' fully implemented and is, presumptively at least, fully satisfied in the process. We are not unmindful that in the last decade we have sometimes, as a matter of appellate style, chosen to consider the traditional voluntariness test under the common law of Maryland before we have looked to the federal constitutional mandate. In retrospect, we consider that approach generally ill-advised.

Faced with a choice between a short, efficient way to resolve an admissibility problem and a longer way to do the same thing, we think it expedient to try the short, efficient way first. Such a choice, moreover, is the one most likely to avoid a needless duplication of effort. Id. at 294 , 629 A.2d at 1278 . In Miranda, the Supreme Court held that, in a criminal case, the prosecution may use statements derived from custodial interrogation only if it can demonstrate that it used procedural safeguards effectively to secure the constitutional privilege against self-incrimination. [T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination.

Miranda, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed.2d at 706. Stated differently, prior to the commencement of interrogation, the accused must be advised that he or she has, and can elect to exercise, certain rights. Unless those rights are freely and knowingly waived, any statement the accused might have made is inadmissible. As to the standard for the proof of waiver, the Court said, “[t]he defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly and intelligently.” Id. at 444-45, 86 S.Ct. at 1612, 16 L.Ed.2d at 706.

It is this aspect of Miranda which the ⁵⁹⁵ Court of Special Appeals contends makes the voluntariness inquiries required by Miranda and the Maryland common law identical. Under Maryland’s common law, a confession is presumptively inadmissible “unless it is ‘shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.’ ” See Hoey v. State, 311 Md. 473, 483 , 536 A.2d 622, 627 (1988) (quoting Hillard v. State, 286 Md. 145, 150 , 406 A.2d 415, 418 (1979); see also State v. Kidd, 281 Md. 32, 35-6 , 375 A.2d 1105, 1108 , cert. denied, Maryland v. Kidd, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977); Biscoe v. State, 67 Md. 6, 7 , 8 A. 571, 571 (1887)). As early as Nicholson v. State, 38 Md. 140, 153 (1873), almost a century before Miranda, this Court stated: [I]t is very clear upon all the authorities, that if the confession of the appellant had been induced by any threat of harm, or promise of worldly advantage held out to him ..., it ought to be excluded. In determining whether a confession is plagued with any “coercive barnacles”, “the standard ... is whether, under the totality of all the circumstances, the statement was given freely and voluntarily.” Gilliam v. State, 320 Md. 637, 650 , 579 A.2d 744, 750 (1990), cert. denied, 498 U.S. 1110 , 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991) (quoting Lodowski v. State, 307 Md. 233, 254 , 513 A.2d 299, 310 (1986)); Lewis v. State, 285 Md. 705, 721 , 404 A.2d 1073, 1082 (1979); Gill v. State, 265 Md. 350, 358 , 289 A.2d 575, 580 (1972); Hadder v. State, 238 Md. 341, 357 , 209 A.2d 70, 76 (1965); Combs v. State, 237 Md. 428, 435 , 206 A.2d 718, 722 (1965).

We addressed the nature of the common law voluntariness inquiry in Lodowski supra, citing State v. Hill, 2 Md.App. 594, 601-02 , 236 A.2d 27, 30-1 (1967): [T]he constitutional inquiry is not whether the conduct of [the authorities] was shocking, but whether [the accused’s] confession was free and voluntary, viz, whether it was extracted by any sort of threats, or violence, or obtained by any direct or implied promises, however slight, or by the ⁵⁹⁶ exertion of any improper influence____ Otherwise stated, the test of the admissibility of [a] confession is whether [the accused’s] will was overborne at the time he confessed ...; or whether his confession was the product of a rational intellect and a free will ...; or whether his statement was “freely self-determined.” Thus, a statement is involuntary if it is induced by force, undue influence, improper promises, including “any official promise which redounds to the benefit or desire of the defendant.” Reynolds v. State, 327 Md. 494, 508-09 , 610 A.2d 782, 789 (1992), cert. denied, — U.S.—, 113 S.Ct. 981 , 122 L.Ed.2d 134 , (1993) (quoting Stokes v. State, 289 Md. 155, 160 , 423 A.2d 552, 554 (1980)). The “totality of the circumstances” includes a number of factors, e.g. where the interrogation was conducted, Burton v. State, 32 Md.App. 529, 534 , 363 A.2d 243, 246 (1976); Shedrick v. State, 10 Md.App. 579, 582 , 271 A.2d 773, 775 (1970); Bernos v. State, 10 Md.App. 184, 188 , 268 A.2d 568, 571 (1970); its length, Hines v. State, 58 Md.App. 637, 658 , 473 A.2d 1335, 1345, cert. denied, 300 Md. 794 , 481 A.2d 239 (1984); Finke v. State, 56 Md.App. 450, 488 , 468 A.2d 353, 373 (1983), cert. denied, 299 Md. 425 , 474 A.2d 218 , cert. denied, 469 U.S. 1043 , 105 S.Ct. 529 , 83 L.Ed.2d 416 (1984); who was present, Cummings v. State, 27 Md.App. 361, 373-74 , 341 A.2d 294, 302-03 , cert. denied, 276 Md. 740 (1975); how it was conducted, Combs, 237 Md. at 435 , 206 A.2d at 721-22 ; Clarke v. State, 3 Md.App. 447, 450 , 240 A.2d 291, 294 (1968); its content, Johnson v. State, 303 Md. 487, 513 , 495 A.2d 1, 14 (1985), cert. denied, 474 U.S. 1093 , 106 S.Ct. 868 , 88 L.Ed.2d 907 (1986); Bowers v. State, 298 Md. 115, 129 , 468 A.2d 101, 108 (1983), cert denied, 479 U.S. 890 , 107 S.Ct. 292 , 93 L.Ed.2d 265 (1986); Radovsky v. State, 296 Md. 386, 401 , 464 A.2d 239, 247 (1983); whether the defendant was given Miranda warnings, Kidd, 281 Md. at 36 , 375 A.2d at 1108 ; Cunningham v. State, 58 Md.App. 249, 261-62 , 473 A.2d 40, 46 , cert. denied, 300 Md. 316 , 477 A.2d 1195 (1984); Thomas v. State, 3 Md.App. 101, 104 , 238 A.2d 558, 560 (1968); the mental and ⁵⁹⁷ physical condition of the defendant, Dempsey v. State, 277 Md. 134, 150-54 , 355 A.2d 455, 463-65 (1976); Mundell v. State, 244 Md. 91, 93 , 223 A.2d 184, 185 (1966); Combs, 237 Md. at 435 , 206 A.2d at 721-22 ; the age, background, experience, education, character, and intelligence of the defendant, Lodowski 307 Md. at 254-55 , 513 A.2d at 311 ; Combs, 237 Md. at 435 , 206 A.2d at 721-22 ; when the defendant was taken before a court commissioner following arrest, Maryland Code (1974, 1989 Repl.Vol.), § 10-912(b) of the Courts and Judicial Proceedings Article; Woods v. State, 315 Md. 591, 613 , 556 A.2d 236, 246-47 (1989); Simkus v. State, 296 Md. 718, 727 , 464 A.2d 1055, 1060 (1983), and whether the defendant was physically mistreated, see Lodowski, 307 Md. at 254-55 , 513 A.2d at 311 , physically intimidated or psychologically pressured. Combs, 237 Md. at 435 , 206 A.2d at 721-22 . A defendant’s will can be overborne and, hence, his or her confession rendered inadmissible, as a result of the use of drugs.

Although being under the influence of narcotics does not automatically render a confession involuntary, it is certainly a factor to be considered along with all the other applicable circumstances. See Campbell v. State, 240 Md. 59, 63-4 , 212 A.2d 747, 750 (1965); Bryant v. State, 229 Md. 531, 535-36 , 185 A.2d 190, 192 (1962). In Maryland, an involuntary statement may not be used against a defendant, both because of the common law concern for fairness, see Brittingham v. State, 306 Md. 654, 664 , 511 A.2d 45, 50 (1986) (involuntary confessions are likely to be untrue and prejudicial); see also Hillard, 286 Md. at 157 , 406 A.2d at 422 , state constitutional requirements, and the constitutional requirements of the 5th Amendment, applied to the states through the 14th Amendment. Thus, it is clear that 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 ⁵⁹⁸ mandates of Miranda.” Hoey, supra, 311 Md. at 480 , 536 A.2d at 625 (1988) (citations omitted). 9 Miranda did not supersede the existing law on voluntariness.

It merely “impressed procedural safeguards on the traditional test of voluntariness.” Brittingham, 306 Md. at 662 , 511 A.2d at 49 ; Kidd, supra, 281 Md. at 36 , 375 A.2d at 1108 . Indeed, several years after the Supreme Court’s decision in Miranda, the Court of Special Appeals, in an opinion which we affirmed, after distinguishing Maryland’s common law protections and procedures regarding the admissibility of confessions from the protections mandated by Miranda, commented: The root problem giving rise to the present appeal is the failure to appreciate that in 1966 the warning and waiver requirements mandated by Miranda v. Arizona ... did not supersede preexisting constitutional law on the admissibility of confessions; the requirements of Miranda simply superimposed additional criteria for admissibility upon that preexisting law. Distracted by the glitter of this new surface layer of quasi-constitutionality, our case law has tended to ignore the substratum of pre-Miranda law which lies undisturbed in bedrock immutability beneath the more volatile overlay of Miranda. Kidd v. State, 33 Md.App. 445, 446 , 366 A.2d 761, 763 (1976), aff'd, State v. Kidd, 281 Md. 32 , 375 A.2d 1105 , cert. denied, Maryland v. Kidd, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977).

We continued to sound the same theme two years later: In explaining why we believe the self-incriminatory statement made by the petitioner here should not have been placed in evidence in his case, it appears wise to recall that, regardless of constitutional strictures, this Court for more than one hundred years has adhered to the tenet that, with regard to fairness in the conduct of a trial, Maryland criminal law requires no confession or other significantly ⁵⁹⁹ incriminating remark allegedly made by an accused be used as evidence against him, unless it first be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary. Hillard, 286 Md. at 150-51 , 406 A.2d at 418 . In a footnote, we expressly recognized the argument that the Maryland and federal voluntariness standards are the same. Despite the presence in the record of “an alleged Miranda rights waiver signed by both the petitioner and his attorney at the time the complained of statement was made, which related that ‘[y]ou are further advised that you are not promised anything to make a statement and no threats or inducements have been made to compel you to make a statement,’ ” we declined to resolve whether an instruction requiring the jury to determine compliance with Miranda obviates the need for an instruction on the common law voluntariness standard.

We explained: As is evident from our decision in this case, it is usually preferable to determine initially whether the activity complained of comports with the requirements of this State’s nonconstitutional law, and then, only if the court finds that it so complies, does it become necessary to reach the issue of whether any constitutional stricture prohibits the conduct in question. We in no way attempt in this case to evaluate whether federal or Maryland constitutional law establishes the same voluntariness test as that enunciated in this opinion. We rest our decision solely on Maryland nonconstitutional law because of the well-settled principle “that courts should not decide constitutional issues unnecessarily.” ... Whether United States and Maryland constitutional strictures are similar to each other or similar to our nonconstitutional requirements is irrelevant, since the activity complained of here does not satisfy the requirements of this State’s non-constitutional law.

Id. at 150, n. 1 , 406 A.2d at 418, n. 1 (Citation omitted). The admissibility of a defendant’s statement whether, as a factual matter, in the State’s case in chief or, as a ⁶⁰⁰ prophylactic matter, to impeach the defendant, see Brittingham, 306 Md. at 664 , 511 A.2d at 50 , depends on whether it was made freely, knowingly, without coercion or inducement. Prior to Miranda, the inquiry that necessitated into the admissibility of a defendant’s confession, the establishment of which is the State’s burden, see discussion infra, was focused on factors relevant to that determination. When the Supreme Court decided Miranda, it promulgated a waiver requirement as a precondition to the admissibility of the defendant’s statement.

Kidd, 281 Md. at 37 , 375 A.2d at 1108 . Thus, after Miranda, in cases in which it is applicable, the focus is on whether Miranda warnings were given, and whether the rights therein encompassed were understood and subsequently waived. As the intermediate appellate court recognized, Hof, 97 Md.App. at 268 , 629 A.2d at 1264 , and the Miranda court specified, see e.g., 384 U.S. at 458, 86 S.Ct. at 1619, 16 L.Ed.2d at 714, in the absence of those warnings, the involuntariness and/or compulsion of the statement is presumed. Whether the police informed the defendant of his or her Miranda rights before the defendant made a statement is not the sum and substance of voluntariness; meticulous compliance with Miranda does not answer the question whether the confession was voluntarily made.

All of the circumstances under which the statement was made, both before and after Miranda warnings were given, need also to be considered. Thus, the voluntariness determination requires the jury to consider factors other than compliance with Miranda. See Sims v. Georgia, 389 U.S. 404 , 88 S.Ct. 523 , 19 L.Ed.2d 634 (1967). See also Maryland Pattern Jury Instructions—Criminal § 318 at 65-66 (1991).

Among other things, the circumstances may include how long the defendant was in custody, his or her mental capacity, and, as in the ease sub judice, the extent to which the defendant was under the influence of narcotics. A jury instruction focused primarily on whether there has been compliance with Miranda is insufficient as a voluntariness instruction. This is so because such an instruction ⁶⁰¹ does not provide the jury with guidance necessary to determine whether the confession was made voluntarily; it does not define “voluntary” or provide a meaningful explanation of the voluntariness standard. Indeed, it may even misdirect the jury’s attention—by requiring the jury to look at only one of the elements of voluntariness, rather than the total picture.

The instruction in this case asked the jury to determine whether the petitioner was clearly advised of his Miranda rights before confessing, whether he understood them, and both knowingly and willingly waived them prior to confessing. The trial court made no attempt to identify for the jury the factors it must consider in resolving that latter issue—whether the waiver was knowing and willing. Aside from the burden of proof, which was appropriately allocated to the State, the only guidance the trial court gave as to how the jury was to make those determinations pertained to what the Miranda rights must contain—that the defendant has the right to remain silent, that anything he said “can and would be used against him in a court of law,” and that, during questioning, he has a right to the presence of an attorney, including an appointed one, should he be unable to afford his own. The portion of the instruction which advised that the mere giving of Miranda warnings did not render the confession valid, only a knowing and intelligent waiver of those rights would do, simply repeated, without additional guidance, what had already been said.

The instruction thus was more concerned with compliance with Miranda, than with voluntariness. Because compliance with Miranda is an issue most appropriately resolved as a matter of admissibility, the court’s function, see Coyote v. United States, 380 F.2d 305, 309-10 (10th Cir.), cert. denied, 389 U.S. 992 , 88 S.Ct. 489 , 19 L.Ed.2d 484 (1967) and, after the court has found a confession to be admissible, voluntariness is ultimately a jury function, it is the latter rather than the former that ought to be the subject of jury instructions. In other words, whether the Miranda decision has been complied with is a matter for the court rather than the jury. ⁶⁰² It is implicit in the Court of Special Appeals’ conclusion that compliance with Miranda necessarily satisfied the Maryland common law voluntariness standard, with all of its permutations; that the same test of voluntariness applies to the waiver of Miranda rights. Indeed, it was on that assumption that the intermediate appellate court traced the Maryland common law and federal voluntariness standard and determined that their content was identical.

That, however, is not dispositive of the validity of the subject instruction, for either of two reasons. First, as already noted, whether Miranda has been complied with, while a factor of voluntariness when considered alone, addresses the admissibility, vel non, of a confession, an issue exclusively for the trier of fact. An instruction with that focus inappropriately requires the jury to make determinations outside its area of responsibility; hence, ordinarily, it ought not be given. Second, however accurate the intermediate appellate court may be with respect to the source and content of the voluntariness standard, the subject instruction is deficient in that it inadequately instructed the trier of fact on voluntariness.

Although the instruction is clear that the “jury must be satisfied beyond a reasonable doubt that the defendant understood his rights and knowingly and willingly waived his rights prior to making a confession,” it pointedly does not provide the jury with any guidance as to how that determination is to be made; it does not define “voluntary” or enumerate the factors relevant to deciding that the waiver was knowing and willing. In short, it provided assistance only with respect to the assessment of whether the confession was admissible. We hold that the instruction given is wholly inadequate. Not only is its focus on an issue not properly considered by the jury, but to the extent it addresses voluntariness at all, it focuses on but one of the factors to be considered in the voluntariness equation; it fails totally to address, and provide guidance to the jury as to, how the jury should assess whether the petitioner’s statement was voluntary, i.e., given knowingly and willingly..

Without such guidance, the court, in effect, did what we very clearly said, in Hillard , should not be done—it ⁶⁰³ disregarded “Maryland criminal law, independent of any federal constitutional requirement,” in favor of deciding the case on the basis of Miranda. 286 Md. at 153 , 406 A.2d at 420 .

III

The State argues alternatively that, even if a Miranda instruction does not obviate the need for a voluntariness instruction, the trial court nevertheless did not err in refusing to give one. This is true, it says, because the issue of voluntariness was not generated by the evidence. According to the State, unless there is evidence raising specific questions about the voluntariness of a particular confession, the admittedly “bare bones” instruction that “the burden is on the State to prove beyond a reasonable doubt that the confession was freely and voluntarily made,” was adequate. It points out, in that regard, that the petitioner did not testify at trial.

While he presented evidence at the suppression hearing that his confession was not made voluntarily, the State concludes, the petitioner presented no such evidence at trial. The trial court proceeded on that basis: “[t]here is no evidence to support the additional language that you [defense counsel] referred to. The instruction that I gave to the jury on the confession is perfectly clear.” So, too, did the Court of Special Appeals: In the present case, by contrast, no instruction was denied on any sub-issue that was generated by the evidence. None of the additional instructions requested by the appellant dealt with matters that had been developed before the jury.

Let it be carefully noted in this regard that facts brought out before the judge alone in a pretrial suppression hearing, before a jury is even impanelled, are not facts that generate a jury issue calling for a jury instruction ... Reciting an abstract laundry list of factors that might be relevant in other circumstances is not necessary if such factors are not pertinent to issues presented to the jury for resolution by it. Hof v. State, 97 Md.App. at 295-96 , 629 A.2d at 1278-79 . ⁶⁰⁴ It is now well settled that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession____ Equally clear is the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession, Jackson v. Denno, 378 U.S. 368, 376-77 , 84 S.Ct. 1774, 1780-81 , 12 L.Ed.2d 908, 915-16 (1964), which determination must “appear from the record with unmistakable clarity.” Kidd, 281 Md. at 37 , 375 A.2d at 1109 (quoting Sims v. Georgia, 385 U.S. 538, 544 , 87 S.Ct. 639, 643 , 17 L.Ed.2d 593, 598 (1967)). In Maryland, both the trial court and the jury must pass upon the voluntariness of a defendant’s confession.

Thus, under the Maryland procedure,, a two-tiered approach, the voluntariness of a defendant’s statement must be proven twice. In Dempsey, supra, 277 Md. at 143-46 , 355 A.2d at 460 (quoting Day v. State, 196 Md. 384, 399 , 76 A.2d 729, 736 (1950)), this Court explained the procedure as follows: “The practice in this State, approved in many cases, is that the court first hears evidence without the jury to determine whether a confession is voluntary and should be admitted. If it decides to admit it, the same evidence is then given to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. In so doing, the jury is entitled to have before it all of the evidence which affects the voluntary character of the document, and which the court passed upon in admitting it.” See also Jackson v. Denno, 378 U.S. at 395 , 84 S.Ct. at 1791 , 12 L.Ed.2d at 926 (In its application, the admissibility of a defendant’s statement must first be determined by the trial judge out of the presence of the jury as a mixed question of law and fact); Gill, 265 Md. at 357-58 , 289 A.2d at 579 and cases cited therein; E. Cleary, McCormick on Evidence § 161, at 430-34 (3d ed. 1984). ⁶⁰⁵ The trial court makes the threshold voluntariness determination, a mixed question of law and fact.

Examining the totality of the circumstances, it assesses whether the confession was voluntarily made. Gill, 265 Md. at 358 , 289 A.2d at 579 , (quoting Smith v. State, 237 Md. 573, 581 , 207 A.2d 493, 497 (1965) and Ralph v. State, 226 Md. 480, 487 , 174 A.2d 163, 167 (1961), cert. denied., 369 U.S. 813 , 82 S.Ct. 689 , 7 L.Ed.2d 613 (1962)). If the trial court determines that the statement was not made voluntarily, it will declare it inadmissible. That completely resolves the issue; it never becomes one for the jury.

Id. at 358, 289 A.2d at 579 . If, on the other hand, the court finds the statement voluntary, it will admit it and its voluntariness then becomes an issue which the jury must ultimately resolve. Id. The jury’s voluntariness determination also requires consideration of the totality of the circumstances surrounding the making of the statement.

See Hillard, 286 Md. at 151 , 406 A.2d at 419 . If it finds the statement to have been voluntarily made, it considers it along with the other evidence in the case in resolving the merits. See Smith, 237 Md. at 581 , 207 A.2d at 497 ; Ralph, 226 Md. at 487 , 174 A.2d at 167 ; Smith v. State, 189 Md. 596, 606 , 56 A.2d 818, 822 (1948). If, however, it decides that the statement was not voluntary, it disregards the statement.

See Dempsey, 277 Md. at 144-45 , 355 A.2d at 460 ; L. McClain, Maryland Evidence § 514.3, at 625-26 (1987, 1990 Supp.); J. Murphy, Jr., Maryland Evidence Handbook § 1303(A)(2), at 468-69 (1989, 1990 Supp.). When the confession is challenged, both at the threshold, before the trial court, and, ultimately, before the jury, the burden is on the State to prove its voluntariness; it is the “government [which] shoulders the responsibility of showing affirmatively that the inculpatory