Lee v. State

GRAEFF, Judge. A jury sitting in Baltimore County convicted Christian Darrell Lee, appellant, of first-degree felony murder, first-degree burglary, two counts of first-degree assault, three counts of use of a handgun in the commission of a felony, and three counts of use of a handgun in the commission of a crime of violence. The court sentenced appellant to life imprisonment on the first-degree felony murder conviction, 25 years on each of the two first-degree assault convictions, and 20 years on each of the three convictions for use of a handgun in a crime of violence convictions. 1 The sentences were consecutive, resulting in an aggregate sentence of life imprisonment, plus 110 years. Appellant presents the following issues on appeal: 1.

Did the court err in denying appellant’s motion to suppress his statements to the police? 2. Did the trial court err in refusing to instruct the jury on second-degree murder and involuntary manslaughter? 3. Did the trial court err in responding to a question from the jury during deliberations? 4. Did the trial court err in granting the State’s motion to join for trial the two cases against appellant?

For the reasons set forth below, we shall affirm appellant’s convictions. ⁶³⁸ FACTUAL AND PROCEDURAL BACKGROUND On September 8, 2006, at approximately 9:30 p.m., Randy Hudson drove to pick up his daughter at the home of her grandparents, Anna and Eric Fountain. As Mr. Hudson approached the back door of the residence and inserted his key in the door, “some guy jump[ed] out from nowhere and grab [bed][him] from behind.” The attacker forced Mr. Hudson into a headlock and dragged him into the alley behind the house. Two other men approached, one armed with a handgun. The men advised Mr. Hudson that he should be quiet, and they demanded his money.

After the three men took approximately $3,000, Mr. Hudson broke free and attempted to run away, but he tripped on a manhole cover. The men caught Mr. Hudson, and they beat him. As a result of the physical assault, Mr. Hudson drifted in and out of consciousness. Anna Fountain, who was sleeping on the couch in the living room with her granddaughter that night, testified that she woke up when she heard a noise in the house.

She saw two men coming down the stairs. The men pointed a gun at Ms. Fountain and instructed her “not to look up at them.” The men went out the back door, came back in, and then ran back upstairs. Each of the four times they did this, they pointed the gun at her and told her not to look at them. One of the men took Ms. Fountain’s cell phone. 2 On the fourth trip into the house, they brought Mr. Hudson into the residence, kicked him, and dragged him upstairs.

After the men left, Ms. Fountain locked the back door; She ran upstairs and discovered her husband, Eric Fountain, who had been shot, and Mr. Hudson. Ms. Fountain went through Mr. Hudson’s pockets, located his cell phone, and, at 10:57 p.m., called 9-1-1. Officer Thomas Wehrle testified that he arrived at the scene in response to a call for a possible shooting, and he heard loud screams. The door to the residence was slightly ajar and he ⁶³⁹ saw Ms. Fountain on her knees, screaming and crying.

Upon seeing the police officers, Ms. Fountain stated, “he’s upstairs. Hurry.” The police officers discovered two bodies on the second floor. Mr. Hudson was lying on his back, unresponsive, but alive. Mr. Fountain was unresponsive, and “[i]t appeared initially that he was deceased.” Medical personnel arrived and pronounced Mr. Fountain dead.

The medical examiner later determined the cause of death to be two gunshot wounds to Mr. Fountain’s torso. On September 29, 2006, at approximately 4:30 a.m., the Baltimore County Police arrested appellant. 3 Sergeant Marvin Haw transported appellant to police headquarters. Appellant stated: “[WJhat took so long? It’s been, like, three weeks.” Detective Craig Schrott, a homicide detective with the Baltimore County Police Department, interviewed appellant later that day from approximately 12:47 p.m. to 2:10 p.m.

The detective informed appellant of his Miranda 4 rights, including that “anything you say can and will be used against you in a court of law.” Appellant waived these rights and agreed to speak with the detective without an attorney present. The first thing that appellant said was: “What I want to know is[,J who the hell put me in this situation?” The detective responded: “[YJou remember the incident, ’cause you were there that day, right?” Mr. Lee stated: “I’m not stupid. I’m not stupid. I know what you’re talking about.” Later in the interview, appellant acknowledged going into the Fountain residence.

He stated, however, that he went into the house after Darnell Smith, his cousin, and John Satterfield. He initially stated that he did not know what was going on inside the house. He admitted going to the second floor of the house and seeing Mr. Fountain, who had been shot, but he denied hearing any gunshots and denied that he ⁶⁴⁰ knew “who did it.” Appellant denied that he was with Darnell when the shooting took place. Soon thereafter, Detective Schrott advised that he knew that appellant shot Mr. Fountain and explained why appellant would want to explain what happened: [DETECTIVE:] But reason—has a difference, bud, in the end.

It really does. It makes a difference to you; it makes a difference to that man’s[ ] family. It makes, it makes a difference. ■ It, it really does. Now, if you were coldblooded and you went in there and you didn’t care, this is what happened, so be it.

But I can see that’s not it. I mean, that, that’s not even an option with you. I can see that. You got a heart.

You got humanity to you. I think it’s one of the things that just happened, you can’t explain it. A bad decision to go inside that house. You didn’t even have a gun when you went up there.

Your cousin were [sic] to go back outside, because he was upset because there wasn’t any money upstairs, like [Mr. Hudson] said, and he gave you the gun and asked [ ] you [to] watch that man—and if that man would have just stayed in the bed, I have no doubt, no doubt in my mind you and I would have never met. Isn’t that true? [APPELLANT:] Oh, my God. [DETECTIVE:] What’s important—well, it’s important for you, Chris; it’s[ ] important for everybody. You don’t[ ] want to be seen as coldblood[ed]. I know[ ] you’re not.

But you got to give an explanation. I mean, you’re the only[ ] one that was up there when it happened, you know. [APPELLANT:] (Witness shaking head no.) [DETECTIVE:] I mean, if you don’t tell the story, nobody’s going to tell you it. And it just sounds—it’s like reading a newspaper, you know. The two of you were upstairs.

Darnell gives you the gun. He goes downstairs, at which time that man’s shot. Nobody really knows what happened up there. I mean, could have been where people are going to say, well, maybe he said hell with it, he just shot him ‘cause he was pissed’ cause there’s no money up there.

You ⁶⁴¹ don’t want people thinking that, you know. I think it was an accident. I—true, I do—1 can look on your face and I know it was an accident. But I need you to tell me that.

It’s no doubt whether you did it or not. There’s no doubt, Chris. The only question is the details. I think it’s important for you to be able to get this off your shoulders.

I can see how you’re living with this. It’s important for that man’s family to know, too. There’s a difference in a situation like that from being perceived as cold-blooded or a situation that just took an ugly twist by no fault of your own. That something just happened, and that’s the reaction it was.

Or, or if he struggled, if he reached for the gun, maybe you went to hit him with the gun and the gun went off. I mean, what happened? The detective then asked several questions about Mr. Fountain’s location to “get a better picture of what’s going on, what you’re going through.” The following then occurred: [DETECTIVE:]—is he standing up, or was he still in bed? Was he sleeping?

Was he awake? Chris, bud—all right. Was he still in bed or did he get up? [APPELLANT:] I’m going to jail, right? [DETECTIVE:] We’re not talking about jail right now. [APPELLANT:] Just—that’s what the whole thing is about. [DETECTIVE:] That ain’t what it’s about. It’s about getting to what the truth is, that’s what it’s all about.

Now, was he still in bed, or did he get out of bed while your cousin was up there? [APPELLANT:] He was still in bed. When asked what happened, appellant told the detective that Mr. Satterfield advised that there was money under the bed. The interrogation continued: [DETECTIVE:] John told you that. So—all right, sir—so when you got there, you went into that room, was that man awake; was he asleep? [APPELLANT:] He was asleep. [DETECTIVE:] He was asleep? ⁶⁴² [APPELLANT:] Yeah, this is being recorded [somewhere, aint it?] 5 [DETECTIVE:] This is between you and me, bud.

Only me and you are here, all right? All right? [APPELLANT:] I’m trying to put together fact and accept that my life is basically over. Appellant then stated that he, not John Satterfield, was getting a murder charge. Detective Schrott explained that, for felony murder, a person who did not personally kill the victim would be guilty of murder if the killing occurred during a felony in which the person participated.

The detective then returned to questioning appellant about the events that transpired immediately prior to the shooting: [DETECTIVE:] Are you guys—do you wake him up, or does your cousin wake him up looking for the money, or do you try to find the money without waking him up? [APPELLANT:] First we look under the bed. He, he woke up when my cousin left, then he try to rush me. He got too close. I tried to run.

I didn’t see, I didn’t see why. I try to get him away from me so I could leave. [DETECTIVE:] So you were trying to get away? [APPELLANT:] I, I thought, I thought a gunshot would scare him. I ain’t know I hit him. I wasn’t even looking. [DETECTIVE:] How’d you shoot when you were running?

I mean, did you shoot like over you shoulder? [APPELLANT:] No. Like, like this (Indicating). ‘Cause I was close, near the door, and he, he just kept coming. I shot two immediate times. It’s not like I shot, went away, shot here. I shot. [T]wo immediate times.

According to appellant, he gave the gun back to his cousin after they left the house. ⁶⁴³ On October 23, 2006, a grand jury indicted appellant for felony murder and other charges relating to the events that resulted in Mr. Fountain’s death. Appellant was denied bail, and he remained incarcerated at the Baltimore County Department of Corrections pending trial. On November 29, 2006, an inmate in the Baltimore County Detention Center volunteered information to law enforcement regarding this case. A “body wire” was placed on the inmate, 6 and it recorded a conversation between the inmate and appellant.

During this conversation, appellant negotiated an agreement with the informant to murder Chelene Smith, a potential witness against him on the murder charge. Shortly after obtaining this recording, appellant was charged with soliciting the murder of Ms. Smith. On July 16, 2007, the State filed a Motion for Joinder of Offense, seeking to join the case involving the crimes at the Fountain residence with the separate charge against appellant for soliciting the murder of a witness. The State argued that a joint trial was appropriate because the “evidence is mutually admissible,” stating that “evidence of the Murder ... provides motive for the subsequent Solicitation to Commit Murder” and “[t]he evidence in [the Solicitation to Commit Murder case] provides evidence of the Defendant’s consciousness of guilt for the Murder.” On August 8, 2007, the circuit court granted the State’s motion to join the two cases.

On August 27 and 28, 2007, the court held a hearing on appellant’s motion to suppress his statement to Detective Schrott. Appellant argued that appellant’s statement should have been suppressed because it was involuntary and it was taken in violation of Miranda. Appellant argued, among other things: [W]hat you have is, in effect, an agreement that it’s not going to be used. I mean, the first thing the Detective said is, Anything you say is going to be used against you.

And ⁶⁴⁴ then he lies to him about it being recorded for the purpose of being used against him. The State argued that the detective’s statement was not improper, and that it did not impact appellant’s willingness to be involved in the interrogation. The State argued that appellant voluntarily, knowingly, and intelligently waived his rights and gave a statement to the detective. Prior to the State’s argument, the court noted that it had “some concern that Detective Schrott basically vitiates the [Miranda ] waiver about anything you say can be used against you when he says this is just between you and me.... ” Ultimately, however, at the conclusion of all the arguments the court denied appellant’s motion, reasoning as follows: The statement he makes is, this is being recorded, ain’t it?

The Detective does not directly answer that question by saying yes or no, but he certainly leaves the Defendant to believe that the conversation is just between the two of them, which was not true. But I do not think that [ ] it changed the Defendant’s willingness to answer the questions in any way. Or violated his rights. So the Motion to suppress the Defendant’s statement is denied.

On January 14, 2008, trial commenced. Tori Kucz testified that, on September 8, 2006, she was with her boyfriend, Mr. Satterfield; her friend, Chelene Smith; appellant; and his cousin, Darnell Smith. 7 Ms. Kucz testified that appellant, Mr. Satterfield, and Darnell left her and Chelene to go for a walk. After approximately 45 minutes to an hour, Ms. Kucz heard people running and saying, “[sjtart the car. Get in the fuckin’ car.

Start the car.” She got into her car with Chelene, Darnell, and appellant; Appellant said: “I shot him, yo.” He continued: “I didn’t mean to. He came at the gun. I know, yo. I know.

I didn’t mean to shoot him. I think he’s dead, yo. He turnt [sic] that color white, you know, the color white when they die, when somebody’s dead. He turnt [sic] that ⁶⁴⁵ color white.” They drove off and picked up Mr. Satterfield, who “started flippin’ out on [Darnell] and [appellant],” swearing at them, telling them that they were dumb, and stating, that “nobody was supposed to get shot.” Ms. Kucz testified that appellant “kept sayin’ over and over ... he’s that color white, jo.

I think I really shot him. He came at the gun. I didn’t mean to do it.” Ms. Kucz testified that they drove to Baltimore City and stopped at a 7-Eleven off of Bel Air Road. Appellant had a cell phone, which he wiped off and threw in the grass behind the convenience store.

Two police officers and a forensic technician testified regarding the initial response to the 9-1-1 call and the collection of evidence at the crime scene, including a shell casing that was discovered at the residence. A handgun was recovered from the house where Darnell was arrested. Sergeant Mark Ensor, an expert in firearms identification with the Baltimore County Police, testified that the bullet removed from the victim’s body, as well as the shell casing located at the crime scene, was fired from the handgun seized from Darnell’s address. Appellant testified in his own defense.

Although acknowledging that he entered the Fountains’ home, appellant denied shooting Mr. Fountain, hitting Mr. Hudson, threatening Ms. Fountain, and taking property from either Mr. Hudson or Ms. Fountain. Instead, appellant blamed his cousin, Darnell, for the crimes. Appellant testified that Darnell entered the Fountain residence armed with a handgun. He testified that he went to the house to see if Darnell “was all right or what he was doin[g].” Appellant went upstairs, and he saw his cousin looking under the bed for money.

Appellant testified that his cousin admitted shooting Mr. Fountain, stating: “[H]e tried to rush me. I had to shoot him.” Appellant acknowledged that he took the gun from his cousin at one point, and that he helped bring Mr. Hudson into the house, but he denied other involvement in the crimes. ⁶⁴⁶ With respect to his statement to the police, appellant testified that he confessed to shooting Mr. Fountain because Mr. Satterfield, purportedly a member of a powerful prison gang, threatened to kill him or his family if he did not admit to the police that he shot Mr. Fountain. With respect to the recorded negotiations with an informant regarding hiring a person to murder Chelene, appellant testified that he “wasn’t serious.” Rather, he was “just talkin’ trash” and “[vjentin’ [his] anger.” On January 17, 2008, the jury began deliberations. The jury returned a verdict the next day, finding appellant guilty of (1) first-degree felony murder of Mr. Fountain; (2) first-degree burglary of the Fountain residence; (8) two counts of first-degree assault of Mr. Hudson and Ms. Fountain; (4) three counts of use of a handgun in the commission of a felony relating to Mr. Fountain, Ms. Fountain, and Mr. Hudson; (5) and three counts of use of a handgun in the commission of a crime of violence, with the same three victims.

The jury found appellant not guilty of solicitation to murder Chelene Smith. This timely appeal followed. DISCUSSION I. Motion to Suppress Appellant’s first contention is that the circuit court erred in denying his motion to suppress the statement that he gave to the police following his arrest. This contention is based on an exchange between appellant and Detective Schrott, which occurred after appellant had waived his Miranda rights, and after some discussion of the events of the evening.

This exchange was as follows: [APPELLANT:] Yeah, this is being recorded [somewhere aint it?] [DETECTIVE:] This is between you and me, bud. Only me and you are here, all right? All right? ⁶⁴⁷ Although the suppression court initially expressed “some concern” that the statement vitiated the Miranda waiver, it ultimately denied appellant’s motion to suppress, stating: The statement he makes is, this is being recorded, ain’t it? The Detective does not directly answer that question by saying yes or no, but he certainly leaves the Defendant to believe that the conversation is just between the two of them, which was not true.

But I do not think that the, it changed the Defendant’s willingness to answer the questions in any way. Or violated his rights. So the Motion to Suppress the Defendant’s statement is denied. An appellate court reviews the grant or denial of a motion to suppress by looking “to the record of the suppression hearing.” State v. Tolbert, 381 Md. 539, 548 , 850 A.2d 1192 , cert. denied, 543 U.S. 852 , 125 S.Ct. 263 , 160 L.Ed.2d 85 (2004).

The court accepts the factual findings of the circuit court unless clearly erroneous, and it reviews “the evidence and the inferences that may be reasonably drawn in the light most favorable to the prevailing party.” Rush v. State, 403 Md. 68, 83 , 939 A.2d 689 (2008). The appellate court, however, makes “an independent, constitutional appraisal of the record by reviewing the law and applying it to the facts of the case.” Shatzer v. State, 405 Md. 585, 592 , 954 A.2d 1118 (2008), cert. granted, — U.S.-, 129 S.Ct. 1043 , 173 L.Ed.2d 468 (2009). In arguing that the circuit court’s ruling was erroneous, appellant characterizes Detective Schrott’s statement as a “promise of confidentiality.” Appellant argues that any subsequent statements he made should be suppressed because: (1) “[t]he detective’s assurance of confidentiality contradicted the Miranda warning that anything he said could be used against him in court and therefore nullified the prior Miranda advisement”; and (2) the detective’s statement “renders [appellant’s] statements involuntary.” The State argues that the trial court properly denied the motion to suppress for several reasons. First, it contends that there was neither a request for, nor promise of, confidentiality in this case.

Second, the State argues that other statements ⁶⁴⁸ made during the interrogation, “as well as [appellant’s] demeanor during the confession ... all demonstrate that [appellant] had no reasonable expectation that his statements would not be used against him[.]” Third, the State contends that the record supports the trial court’s finding that the detective’s statement “did not change [appellant’s] willingness to answer questions in any way.” In Maryland, the confession of a criminal defendant will not be admitted as evidence at trial unless it was “(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 mandates of Miranda.” Griner v. State, 168 Md. App. 714, 730 , 899 A.2d 189 (2006) (citations omitted). Accord Tolbert, 381 Md. at 557 , 850 A.2d 1192 (prosecutor must establish “by a preponderance of the evidence that the statement satisfies the mandates of Miranda v. Arizona, and, that the statement is voluntary.”) (citing Winder v. State, 362 Md. 275, 305-06 , 765 A.2d 97 (2001)). As explained below, we agree with the State that the circuit court properly rejected the argument that Detective Schrott’s statement violated Miranda or rendered appellant’s confession involuntary. A. Miranda It is well-established that, before police officers may subject an individual to custodial interrogation, the individual must be advised of certain rights, including that “anything he says can be used against him in a court of law....” Miranda, 384 U.S. at 479, 86 S.Ct. 1602 .

This requirement has been determined to be of constitutional dimension. Dickerson v. United States, 530 U.S. 428, 439-40 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000). The United States Supreme Court has set forth a two-step process to determine whether a suspect has made a ⁶⁴⁹ voluntary, knowing, and intelligent waiver of his or her Miranda rights: First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it.

Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived. Moran v. Burbine, 475 U.S. 412, 421 , 106 S.Ct. 1185 , 89 L.Ed.2d 410 (1986) (citation omitted). The determination whether an accused knowingly and voluntarily waived his right to remain silent is determined by reviewing the “totality of the circumstances surrounding the interrogation.” McIntyre v. State, 309 Md. 607, 615 , 526 A.2d 30 (1987). Here, there is no question that appellant was advised of his Miranda rights and that his initial waiver of these rights was valid.

Rather, appellant’s argument is that following this waiver, “Lt]he deception employed by the detective vitiated [his Miranda; ] rights and nullified his waiver.” The Court of Appeals has stated that the police “are permitted to use a certain amount of subterfuge, when questioning an individual about his or her suspected involvement in a crime.” Ball v. State, 347 Md. 156, 178 , 699 A.2d 1170 (1997), cert. denied, 522 U.S. 1082 , 118 S.Ct. 866 , 139 L.Ed.2d 763 (1998). They “are not permitted to employ coercive tactics in order to compel an individual to confess, but they are permitted to ‘trick’ the suspect into making an inculpatory statement.” Id. at 179, 699 A.2d 1170 . Nevertheless, although “the use of trickery to encourage a suspect to confess is not inherently unlawful,” Whittington v. State, 147 Md.App. 496, 520 , 809 A.2d 721 (2002), cert. denied, 373 Md. 408 , 818 A.2d 1107 , cert. denied, 540 U.S. 851 , 124 S.Ct. 136 , 157 L.Ed.2d 92 (2003), there are limits on permissi ⁶⁵⁰ ble police deception. Trickery or deception that' interferes with a suspect’s understanding of his or her Miranda rights is prohibited.

Logan v. State, 164 Md.App. 1, 41 , 882 A.2d 330 (2005) (“in contrast to traditional voluntariness, ‘there is an absolute prohibition upon any trickery which misleads the suspect as to the existence or dimensions of any of the applicable [Miranda ] rights ....’”) (quoting 2 Wayne R. LaFave, Jerold H. Israel and Nancy J. King, Criminal Procedure § 6.9(c) (3d. ed. 2000)), aff'd, 394 Md. 378 , 906 A.2d 374 (2006). 8 In Logan , this Court found a Miranda violation when a detective made “affirmative misstatements that conflicted with the Miranda advisement that anything appellant said could be used against him.” 164 Md.App. at 48 , 882 A.2d 330 . The detective made various statements to Logan prior to Logan’s waiver of rights, including: “we’re talking”; “the only way this jeopardizes you is if you don’t tell the truth”; and that the officer would not “use any of the information to harm” Logan. Id. This Court held that, in light of these statements, the Miranda advisement was “fatally flawed.” Id. at 49, 882 A.2d 330 .

In particular, we held that the officer’s statement, that the only way this jeopardizes you is if you don’t tell the truth, “flatly contradicted the Miranda warning, and thus nullified” the Miranda warning given to Logan. Id. at 48, 882 A.2d 330 . We note that in Logan the improper statements were made before the suspect waived his Miranda rights. Here, by contrast, the statements at issue were made after Lee was advised of his rights and waived them.

Some courts have indicated that misstatements or deception by police after a •valid waiver does not invalidate the prior waiver. See United States v. Bezanson-Perkins, 390 F.3d 34, 41 (1st Cir.2004) ⁶⁵¹ (questioning whether police misstatements after a voluntary-waiver could invalidate the waiver); United States v. Chadwick, 999 F.2d 1282, 1286 (8th Cir.1993) (detective’s statement that Chadwick’s cooperation would “help” him did not invalidate Chadwick’s waiver of his Miranda rights; it “could not have had any impact on Chadwick’s decision to waive his Miranda rights, since the waiver had occurred earlier.”). See also Soffar v. Cockrell, 300 F.3d 588, 598 (5th Cir.2002) (detective’s misleading statements to the defendant did not invalidate a Miranda waiver that had already occurred). Other courts, however, have made no distinction with respect to the timing of police deception, and they have held that police deception after a waiver can nullify or vitiate the earlier Miranda warnings.

See, e.g., State v. Pillar, 359 N.J.Super. 249 , 820 A.2d 1, 10-11 (App.Div.) (agreement to suspect’s request to speak “off the record” rendered subsequent statement inadmissible because “such a misrepresentation directly contradicts and thereby neutralizes the entire purpose of the Miranda warnings”), cert. denied, in N.J. 572, 832 A.2d 322 (2003); State v. Stanga, 617 N.W.2d 486, 491 (S.D.2000) (statements made after waiver “nullified” the earlier Miranda , warnings). Courts adopting this approach view a suspect’s waiver as a “continuing decision, implicit throughout the interrogation.” Andrew V. Jezic. Frank Molony, & William E. Nolan, Maryland Law on Confessions § 11:10, at 444 (2008). Thus, even if an initial waiver of Miranda was valid, subsequent deception by the police may “invalidate! ] an essential term of the Miranda warnings, théreby rendering that waiver no longer in effect.” Id.

We agree that the timing of the police deception is not dispositive. Rather, the central issue is whether the deception misleads the suspect regarding the rights explained in the Miranda warnings and deprives the suspect “of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.” Moran, 475 U.S. at 424 , 106 S.Ct. 1135 . If a voluntary decision to speak is “made with full awareness and comprehension of all ⁶⁵² the information Miranda requires the police to convey,” a waiver is valid. Id.

Against this background, we consider appellant’s claim that a police officer’s promise of confidentiality is the type of deception that nullifies an earlier Miranda warning. Prior to the Miranda decision, the Court of Appeals found that promises of confidentiality were not improper. In Markley v. State, 173 Md. 309, 316-18 , 196 A. 95 (1938), the Court of Appeals rejected the argument that it is improper for the police to promise to keep the suspect’s name “out of any published statements” and to regard his statement as “confidential.” The Court stated that “[a]n assurance of secrecy is regularly held insufficient to render a confession inadmissible on the ground that it is involuntary.... ” Id. at 317 , 196 A. 95 . As indicated, however, this case pre dates the Miranda decision.

Thus, it does not address the issue here, i.e., whether a promise of confidentiality nullifies the requisite Miranda warnings. Courts in other jurisdictions have held that a police officer’s express promise of confidentiality contradicts the Miranda warning that “anything [a suspect] says can be used against [the suspect] in a court of law,” 384 U.S. at 479 , 86 S.Ct. 1602 , and, therefore, it nullifies the warning. In Spence v. State, 281 Ga. 697 , 642 S.E.2d 856, 857 (2007), the defendant waived his Miranda rights and was interrogated about a murder. After the defendant “broke down in tears,” the officer said “just you and me,” and told the defendant “[t]his is confidential what we’re doing right here.

Do you understand that? This is confidential.... ” Id. The suspect subsequently gave a statement implicating himself in the murder. Id.

The Supreme Court of Georgia held that the statement was inadmissible. Id. at 858. The court relied on the rationale of Hopkins v. Cockrell, 325 F.3d 579, 585 (5th Cir.), cert. denied, 540 U.S. 968 , 124 S.Ct. 430 , 157 L.Ed.2d 314 (2003), in which the Fifth Circuit held that the police cannot make statements inconsistent with the Miranda warnings and then use the confession against the defendant. Spence, 642 S.E.2d at 858 . ⁶⁵³ In Hopkins , the investigating officer told the defendant that “their conversation was confidential,” stating “[t]his is for me and you.

This is for me. Okay. This ain’t for nobody else.” 325 F.3d at 584 . The Fifth Circuit held that these statements “passed the line into the sort of lying that deprives a defendant ‘of the knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them.’ ” Id.

(quoting Moran, 475 U.S. at 424 , 106 S.Ct. 1135 .). Similarly, in Pillar, 820 A.2d at 8 , following administration of Miranda warnings, the defendant asked to “say something ‘off-the-record.’ ” The police agreed to listen to an “off-the-record” statement, and the defendant made an incriminating admission. Id. In concluding that the statement should have been suppressed, the Superior Court of New Jersey reasoned: A police officer cannot directly contradict, out of one side of his mouth, the Miranda warnings just given out of the other.

An acquiescence to hear an “off-the-record” statement from a suspect, which the officer ought to know cannot be “off-the-record,” totally undermines and eviscerates the Miranda warnings, at least with respect to a statement made, as here, in immediate and direct response to the misleading assurance. Id. at 11-12. We agree that an express promise of confidentiality is inconsistent with the Miranda warning that “anything [a suspect] says can be used against [the suspect] in a court of law.” Miranda, 384 U.S. at 479 , 86 S.Ct. 1602 . When a police officer makes such a promise of confidentiality, it can nullify the Miranda warning.

If the totality of the circumstances shows that the suspect was led to believe that his or her statement would not go beyond the interrogation room, a subsequent statement is not given in compliance with the requirements of Miranda . Turning to the facts of the present case, we must determine, under the totality of the circumstances, whether Detective Schrott’s statement amounted to a promise of confidentiality. A promise is “[t]he manifestation of an intention to ⁶⁵⁴ act or refrain from acting in a specified manner, conveyed in such a way that another is justified in understanding that a commitment has been made; a person’s assurance that the person will or will not do something.” Black’s Law Dictionary 1249 (8th ed. 2004). Here, unlike the cases cited, supra, there was no express promise that the defendant’s statements would remain confidential or that the statements were “off-the-record.” Detective Schrott merely responded to appellant’s query regarding whether the interrogation was being recorded by stating: “This is between you and me, bud.

Only me and you are here, all right? All right?” As the State notes, this statement did not reflect any agreement of confidentiality. Rather, it was an equivocal response that was designed, not to establish a confidential relationship, but to deflect appellant’s suggestion that he was aware that the interrogation was being recorded. We view Detective Schrott’s response as sidestepping appellant’s question regarding whether the interrogation was being recorded.

Even if the response is viewed as an affirmative misstatement that the interrogation was not being recorded, however, such a response would not violate Miranda . “There is no requirement that a defendant who has properly been given Miranda warnings must also be told he ... may be tape-recorded or video-recorded or both.” State v. Vandever, 314 N.J.Super. 124 , 714 A.2d 326, 328 (App.Div.1998), cert. denied, 178 N.J. 32 , 834 A.2d 405 (2003). Police deception regarding whether an interrogation is being recorded, does not contradict the Miranda warning that anything the suspect says can be used against the suspect. A police officer’s false statement that an interrogation is not being recorded, when in fact it is being recorded, does not render a confession inadmissible. State v. Wilson, 755 S.W.2d 707 (Mo.Ct.App.1988). 9 ⁶⁵⁵ Perhaps recognizing that deception regarding whether an interrogation is being recorded does not violate Miranda , appellant’s argument is couched solely on the assertion that Detective Schrott’s statement was a promise of confidentiality.

As indicated, however, unlike the cases cited, supra, the detective did not make an express promise of confidentiality, and he did not contradict the Miranda warnings. Appellant cites to one case that merits further discussion. State v. Stanga, 617 N.W.2d at 486 , involved statements similar to the statement in this case. The facts in that case, however, were materially different.

In Stanga , the police arrested Stanga and advised him of his Miranda rights. Id. at 487-88. Based on Stanga’s “slurred speech” and the smell of alcohol on his breath, the police concluded that Stanga was “under the influence.” Id. at 488. The court summarized the interrogation as follows: [Detective] Lubbers said numerous times that he was there to listen, making comments such as “it’s between you and me,” “I’m here to listen to your side,” and “you need to get this off your chest,” all as part of his interrogation technique.

Stanga said repeatedly that he went to the house to “talk” to Judy, but he also admitted hitting her, and then divulged having in mind a plan to kill her. Throughout the interview, he sought assurances on whether he could trust the detective-whether he could speak “straight up.” When Stanga seemed to forget who he was talking to, Lubbers reminded him, “Well, T am the cop.” At one point, Stanga told the detective, “I know you’re here to get something against me.” But Lubbers responded, “No, I’m here for you and I to talk.” After hearing this, Stanga said, “Okay. I’m going to tell you straight up, and if it goes any further ⁶⁵⁶ than me and you, then I won’t tell. I don’t know.” Lubbers responded, “You can trust me straight up.

Go ahead.” Still needing more assurance, Stanga asked, “What I say to you, suppose it goes to everybody?” As the videotape ran and as other officers watched unseen, Lubbers replied, “Between you and me. There’s nobody else in the room here. It’s between you and me.” Stanga confided again that he was thinking about killing Judy when he broke into her home. Later, seeming to understand that his statement could be used against him, Stanga said, “I’ll tell you the truth and you tell the judge.” Yet at the end of the interview, Stanga repeated his earlier overture, “Don’t tell anybody either.” Lubbers responded,