In Re Joshua David C.

HOLLANDER, Judge. The Circuit Court for Garrett County, sitting as the juvenile court, found that appellant, Joshua C., committed the delinquent acts of malicious burning of a building and misdemeanor theft. 1 At the time of the delinquent acts, Joshua was ten ⁵⁸⁵ years old. At disposition, the court placed appellant on probation and ordered restitution in the amount of $62.85. Appellant timely noted his appeal and presents two questions for our review, which we have rephrased slightly: I. Did the motion judge err in denying appellant’s motion to suppress his confession?

II

Did the trial judge err in admonishing a State’s witness to tell the truth? As we answer appellant’s first question in the affirmative, we shall vacate the court’s findings and remand the matter to the court for further proceedings. Therefore, we decline to address appellant’s second question. I. FACTUAL SUMMARY—MOTION TO SUPPRESS At the hearing on appellant’s motion to suppress, John Sines, chief of the Oakland Police Department, was the sole witness.

He testified that he was called to the Farm Fresh Building, a wooden structure owned by the Town of Oakland, at approximately 10:10 a.m. on July 23,1996, in response to an attempted burning of the building that had occurred during the prior evening. He observed eight cigarette lighters in the vicinity that had all been spray painted. After the chief developed several suspects, including appellant, he proceeded to appellant’s house. Neither appellant nor his mother was home, but Sines left a message with appellant’s sister that he wanted to speak with appellant and his mother.

Later that day, at approximately 5:30 p.m., Ms. C., Joshua’s mother, brought him to the police department, located at city hall. Sines initially met with both appellant and his mother in his office and explained that he wanted to discuss the burning at the Farm Fresh Building. According to Sines, Ms. C. did not object to the interview. To the contrary, she encouraged her son to tell the truth.

Chief Sines testified that he did not have to introduce himself, because appellant and Ms. C. ⁵⁸⁶ already knew him, and appellant was aware that Sines was the chief of police. The chief initially stated that he was in uniform during the interview, but later indicated that he was not sure how he was dressed. During the interview, Chief Sines sat behind his desk and appellant and Ms. C. sat across from him. Soon after appellant’s arrival, in the presence of his mother, Sines advised appellant of his rights, pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), by reading from a waiver form.

The chief explained that he “made sure [appellant] understood,” and he advised appellant that “what you should do, Josh, is tell the truth.” Neither appellant nor his mother had any questions. Nor did either one request an attorney. Although appellant said he understood, Sines conceded: “I don’t think he understood a lot of those questions.” Moreover, when asked if, in his opinion, áppellant understood his Miranda rights, the chief responded, “He’s ten years old.” In any event, appellant signed the waiver form by printing his name. Initially, appellant denied any involvement in the burning.

Chief Sines thought appellant might not want to reveal his involvement in the presence of his mother. Accordingly, after about fifteen or twenty minutes, Chief Sines “suggested” to Ms. C. that it would be “better” if he spoke with appellant “one-on-one,” and that Ms. C. “should go out to the next office.” Ms. C. then left appellant alone with the chief. Thereafter, Sines asked appellant to bring his chair closer to him so that they could talk, and he said something along “the lines of, ‘Josh, your mom’s not in the room, just you and me here. How about you telling me the truth finally, and we can take a statement.’ ” Approximately one half hour after Ms. C. left the chiefs office, appellant confessed.

His statement was formalized in writing, using a question and answer format. After the written statement was obtained, appellant’s mother returned to the room. Chief Sines testified that when Ms. C. returned to the office, she did not voice any concern about the state ⁵⁸⁷ ment. Rather, she “was glad he told the truth----” At approximately 7:00 p.m., the interview was completed and appellant departed with his mother.

Chief Sines denied telling Joshua that he could not leave the room, threatening appellant, or making any promises to him in order to induce the confession. The chief added that he did not believe that appellant was “afraid” of him, because they “know each other very well.” Nevertheless, during cross-examination, the following colloquy ensued: Q. [DEFENSE COUNSEL:] Do you recall making a statement to Josh that you’d tell your wife to hold dinner or you had all night to stay there with him if need be? A. Right. I didn’t get home until about nine o’clock that night.

Q. But do you recall telling Josh that you’d stay there as long as you had to get him to tell the truth? A. I’d stay there as long as it takes. You know, we’re not in no hurry here. That’s what I was trying to express to him.

Chief Sines also conceded that he was aware that appellant was taking the medication Ritalin for a condition known as attention deficit disorder. 2 In addition, he acknowledged that appellant expressed an interest in some tee shirts that the police department had on display. The following testimony is relevant: Q. [DEFENSE COUNSEL:] Do you recall some tee shirts that the Police Department had on display? A. Right. Q. And do you recall Josh being interested in getting one of those tee shirts?

A. All kids like those tee shirts, yes. ⁵⁸⁸ Q. And did you ever indicate to him that he could get one of those tee shirts if he told you the truth? A. Okay. Kathy [appellant’s mother] and I—Kathy wanted to buy one of those tee shirts for her son. It was $12.

It wasn’t my idea to say like, “Josh, if you tell me the truth, you’ll get one of these tee shirts.” It was an idea to get him to tell the truth. His mother was going to like reward him for telling the truth, that kind of thing. It wasn’t an ultimatum, “You don’t get a shirt if you don’t tell me the truth.” Q. But Josh didn’t know about this conversation you had had with his mother, did he? A. He could have been in the room when we was talking about that.

I don’t know for sure. Q. But this was a conversation between you and Kathy C. and then did you go and then tell Josh that he could get a shirt if he told the truth? Even though his mother was going to buy it, he didn’t know that though, did he? A. I don’t know if he knew that or not.

Q. But wasn’t that statement made to Josh that he could get a shirt by telling the truth? A. I don’t recollect. It could have been. I could have said that.

Q. But it could have. Were there any discussions about him getting a tee shirt? A. Oh, I think they bought one at the end—before they left, I think they did buy one or later get one. Q. But had you discussed that with Josh prior to that?

A. I don’t think so, I did. At the conclusion of the testimony, the judge summarized the evidence: As I understand the testimony, Chief Sines investigated a burning____ [H]is investigation led him to Ms. C.’s house, as well as others, to talk to her son. They weren’t there. He left a note with ... some relative ... that when she and her son came in to come down.

They came down about 5:30 ⁵⁸⁹ in the evening to the Town Hall at a time when everybody had gone home and Chief Sines was awaiting them. Perhaps someone else showed them in. They arrived with his mother [sic]. They talked about some things.

Josh specifically denied the incident occurred. His mother asked him to tell the truth. So did Chief Sines. At some point, Chief Sines, I assume while his mother was present—well, I don’t assume; that’s what the evidence is, advised Josh of his—of Miranda warnings.

I didn’t say “of his” because I think as Chief Sines says, who knows whether he understood it or not. He understood probably some of the things. I think, though, he understood that this was serious stuff that Chief Sines was talking with him, and certainly his mother was there and she knew what those things were, the statements and questions and rights were. In addition to that, Chief Sines ... suggested to his mother, Josh’s mother, that perhaps she’d leave the room and he’d talk one-on-one with him to see whether that would be more productive and I have the understanding that Josh’s mother was as interested in getting to the bottom of it as anyone else and she was, in a sense, I guess, working with Chief Sines.

Anyway, she left and they then stayed together approximately a half an hour where Chief Sines talked to him and he told him some things that happened and then he got out a paper and wrote those things down in an orderly fashion and took their good time doing it, which took about a half an hour or so. Josh’s mother came back in and John Sines talked with her about the whole situation and then they went on home. Apparently, they did buy a tee shirt or did not buy a tee shirt or something of that nature. (Emphasis added). 3 Thereafter, defense counsel argued that appellant did not voluntarily and knowingly waive his rights and did not volun ⁵⁹⁰ tarily confess.

He claimed that the interview constituted custodial questioning and that, because of appellant’s age and his attention deficit syndrome, he did not understand his Miranda rights. Moreover, he contended that the rights were personal and thus could not be waived by appellant’s mother. In denying appellant’s motion, the judge said: [A]s I understand from the facts that I recited earlier, that then Josh was brought into the Town Hall by his mother, they left together. [Defense Counsel], I just do not see that he was under arrest. If Chief Sines had gone out and put him in the police car, put handcuffs on him or took him into custody somehow, I could agree with you.

I don’t think young Joshua was under arrest at all, and when he was down there, he was read the Miranda warnings and as you point out, and perhaps he could have been talking about a Happy Meal at McDonald’s across the street, I don’t know, but Chief Sines says that he has known this young man. The young man was not afraid of him. I think that’s very important. He knew his mother.

His mother knew him. They were talking amongst themselves and as [the State’s Attorney] points out, Miranda is not, in itself, a part of the ⁵⁹¹ Constitution. It’s an assurance that when statements are made, they’re free, a product of free and voluntary actions; that they’re not a product of force, intimidation, threat, promise or any other coercive matter. Without Miranda is evidence that the statement is free and voluntary and that safeguards of counsel and so forth have been offered, and I think the statements—I don’t know whether it was in the nature of a confession or admission or just a statement, but whatever it is, and I think it does make it a slight difference to a degree, I think it’s admissible.

So I would rule that there—I don’t think that there was an arrest, but even if there was____ Additional facts will be included in our discussion.

II

DISCUSSION A. Appellant contends that the hearing judge erred in denying his motion to suppress the confession. In support of this position, he claims that he was subjected to custodial interrogation, and did not validly waive his Miranda rights, because he did not understand them. Additionally, appellant urges that his confession was involuntary under Maryland nonconstitutional law. In this regard, he relies on the following: (1) he was only ten years old at the time of the events; (2) he suffers from attention deficit syndrome; (3) he was on the medication Ritalin; (4) the duration of the interview was too lengthy for a child with attention deficit disorder; (5) he was threatened by Chief Sines that they would stay at the police station for as long as it took to obtain a confession; (6) he did not understand the Miranda warnings; (7) he was ultimately questioned outside the presence of his mother; and (8) he was offered a tee shirt as an inducement to confess.

In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing; we do not consider the record of the trial itself. Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987); Aiken v. State, 101 Md.App. ⁵⁹² 557, 568, 647 A.2d 1229 (1994), cert. denied, 337 Md. 89 , 651 A.2d 854 (1995). We extend great deference to the findings of fact and determinations of credibility made by the suppression hearing judge. McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 (1992); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990).

Indeed, we accept the facts as found by the hearing judge, unless clearly erroneous. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Perkins, 83 Md.App. at 346 , 574 A.2d 356 . In addition, we review the evidence in the light most favorable to the State. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; Cherry v. State, 86 Md.App. 234, 237 , 586 A.2d 70 (1991).

Nevertheless, this Court must make its own independent constitutional determination as to the admissibility of the confession, by examining the law and applying it to the facts of the case. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; see also Ornelas v. United States, — U.S. -, 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996). B. As we noted, appellant claims that he was subjected to custodial interrogation and that his statement was obtained in violation of his Miranda rights. The State vigorously disputes that appellant was in custody during the interview by Chief Sines.

Therefore, it posits that Miranda is inapplicable. It is pellucid that the application of Miranda is triggered only in a custodial setting. Miranda, 384 U.S. at 441, 444 , 86 S.Ct. at 1611, 1612 ; see also Thompson v. Keohane, — U.S. -, -, 116 S.Ct. 457, 460 , 133 L.Ed.2d 383 (1995); Hughes v. State, 346 Md. 80, 87 , 695 A.2d 132 (1997); Whitfield v. State, 287 Md. 124, 138-39 , 411 A.2d 415 , cert. dismissed, 446 U.S. 993 , 100 S.Ct. 2980 , 64 L.Ed.2d 850 (1980). Thus, prior to interrogation, only an individual in custody must be advised of his or her constitutional rights.

Miranda, 384 U.S. at 444 , 86 S.Ct. at 1612 . An individual in custody may waive his or her constitutional rights, so long as the waiver is made “voluntarily, knowingly and intelligently.” Id. ⁵⁹³ at 444, 86 S.Ct. at 1612 . “Absent a knowing and voluntary waiver of these rights, any incriminating responses to police questioning are inadmissible.... ” Hughes, 846 Md. at 87, 695 A.2d 132 . Therefore, we must first examine the trial court’s factual determination that appellant was not under arrest at the time he confessed and its implicit finding that appellant was not subjected to custodial interrogation. We conclude that, under the circumstances of this case, the questioning occurred in a custodial setting, even though appellant had not been formally arrested. “ ‘Custody’ ordinarily contemplates that a suspect will be under arrest, frequently in a jailhouse or station house setting.” Reynolds v. State, 88 Md.App. 197, 209 , 594 A.2d 609 (1991), aff'd, 327 Md. 494 , 610 A.2d 782 (1992), cert. denied, 506 U.S. 1054 , 113 S.Ct. 981 , 122 L.Ed.2d 134 (1993).

The concept of “custody,” however, is not necessarily synonymous with an actual arrest; it also includes a reasonable perception that one is significantly deprived of freedom of action. Miranda, 384 U.S. at 478 , 86 S.Ct. at 1630 . The Supreme Court explained in Thompson that custody may be found when “a reasonable person [would] have felt he or she was not at liberty to terminate the interrogation and leave.” — U.S. at -, 116 S.Ct. at 465. Similarly, the Court of Appeals has said that the trial court must consider, inter alia, whether the suspect was “physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation.” Whitfield, 287 Md. at 140 , 411 A.2d 415 (internal quotation omitted).

Further, in Whitfield , the Court indicated that whether a suspect “came [to the place of questioning] completely on his own, in response to a police request, or escorted by police officers,” id. at 141 , 411 A.2d 415 (internal quotation omitted), and what occurred at the end of the interrogation, may also be probative in resolving whether a suspect was in custody at the relevant time. The “subjective intent” of a law enforcement officer, however, is not relevant in resolving the custody issue. Id. at 140 , 411 A.2d 415 . ⁵⁹⁴ In regard to juveniles, we have added the caveat that “it is reasonable ... for courts to apply a wider definition of custody for Miranda purposes.” In re Lucas F., 68 Md.App. 97, 103 , 510 A.2d 270 , cert. denied, 307 Md. 433 , 514 A.2d 1211 (1986). Indeed, in determining whether a juvenile’s statement was made while in custody, the court must consider additional factors, such as the juvenile’s education, age, and intelligence.

In re Owen F., 70 Md.App. 678 , 685 n. 3, 523 A.2d 627 , cert. denied, 310 Md. 275 , 528 A.2d 1286 (1987). At the chiefs request, Joshua was brought to the police department by his mother, after Sines notified Ms. C. of his desire to speak with appellant. No evidence was presented that Joshua wanted to go to the police station to talk to Chief Sines. On this record, we cannot say that the mother’s decision to go to the police station constituted the free and considered act of a ten-year-old boy, or that the act of appellant’s mother in bringing appellant to the interview was otherwise probative of the custody issue.

Therefore, as we proceed to analyze the thorny issue of custody, we give little weight to Ms. C.’s decision to bring appellant to the police department. We do find it significant, however, that appellant was only ten years old, and he was completely inexperienced in regard to police interviews. It is also noteworthy that the record is devoid of any indication that appellant was ever told that he could leave the office of the police chief at any time during the interview. Nor is there any indication in the record that, once appellant’s mother left the room, appellant nonetheless realized he could ask to talk to her in order to obtain her guidance.

Instead, appellant was told that the chief would stay as long as necessary. Further, the chief knew that appellant was taking Ritalin for his attention deficit disorder. When we consider that a ten-year-old boy, with no prior criminal involvement, was alone with the chief of police, at the chiefs office, at night, without a parent, and without having been told that he was free to leave, we easily conclude that, for purposes of the interview, appellant reasonably would have ⁵⁹⁵ thought his freedom of action was restricted. Therefore, we are amply satisfied that, for Miranda purposes, custody was established.

In reaching our conclusion, we find In re Imcas F. instructive. There, the appellant was also ten years old and had been picked up by the police as a runaway. He was subsequently interrogated by detectives in regard to a brutal assault committed on a seven-year-old, and was not told that he was free to leave or that his mother was in a nearby waiting room. Moreover, one detective specifically testified that the appellant was in custody.

On that record, we concluded that the child “was significantly deprived of his freedom of action and was in custody within the meaning of Miranda.” In re Lucos F., 68 Md.App. at 103 , 510 A.2d 270 . Although there is no indication in the opinion that the child testified in regard to the suppression issue, we added that the boy “reasonably perceived himself to be in the custody of the police.” Id. The Court went on to hold that “ordinarily a ten year old child is entitled to the counseling and guidance of a parent or guardian before he or she may validly waive the constitutional rights protected by Miranda.” Id. at 104, 510 A.2d 270 . We are equally convinced here that appellant did not execute a valid waiver.

As we have said, Chief Sines essentially conceded that, due to his age, appellant probably did not understand his rights. Moreover, the evidence does not reflect that any effort was made—beyond mere recitation of the form—to ensure that appellant (or his mother) really understood the rights or that appellant (or his mother) appreciated the gravity of the circumstances. Nor did the State demonstrate that Joshua “had the mental capacity to comprehend the significance of Miranda , and the rights waived.” In re Lucas F., 68 Md.App. at 104 , 510 A.2d 270 . We recognize that in In re Lucas F., the Court was troubled that the child was never told that his mother was in an adjoining room; in contrast, appellant was advised of his rights in Ms. C.’s presence.

The chief seemed to view Ms. C. as his ally. Given Sines’s candid acknowledgment that appel ⁵⁹⁶ lant did not seem to understand his rights, the mere presence of appellant’s mother during the advice of rights does not automatically establish a valid waiver. Therefore, while appellant signed the waiver form in the presence of his mother, we decline to impute to