Lincoln v. State

EYLER, J. A jury in the Circuit Court for Baltimore City found Leroy Lincoln, Jr., the appellant, guilty of conspiracy to commit murder. 1 The court sentenced the appellant to life imprisonment with all but 25 years suspended. On appeal, the appellant presents one question: Did the circuit court err in denying his motion to suppress his state ¹⁷⁵ ment to the police? Perceiving no error, we shall affirm the judgment. FACTS AND PROCEEDINGS On February 27, 1995, Leroy Lincoln, Sr., was murdered in his home on East Northern Parkway, in Baltimore City.

The cause of death was blunt force trauma to the head. Lincoln, Sr., was the appellant’s father. The appellant was 18 years old when the murder took place. Also at the time of the murder, Lincoln, Sr., was married to Geralene Lincoln, the appellant’s mother, although it is not clear from the record whether Lincoln, Sr., and Geralene were living together.

The murder case remained unsolved for several years, until Baltimore City Police Detective Tyrone Francis, of the “Cold Case Unit,” reopened the investigation. He tracked down Monique Peterson, who was the appellant’s girlfriend at the time of the murder. On August 23, 2003, Francis interviewed Peterson and obtained a tape-recorded statement from her. 2 Peterson told Francis that, sometime before the murder, she heard Geralene say she wanted to kill Lincoln, Sr. Also, Peterson had had a conversation with the appellant in which he said that he, his mother, and his friend “John,” were planning to kill Lincoln, Sr. Peterson identified a picture of one John Ulrich as the friend in question. 3 Peterson further stated that, after the murder, the appellant said his father was dead and that Ulrich had killed him. The appellant told her that he and Ulrich had gone to Lincoln, Sr.’s house and that Ulrich had hit Lincoln, Sr. with the back of an ax handle.

The appellant also told Peterson the murder had been carried out so his mother could obtain his father’s insurance money. ¹⁷⁶ Francis attempted to interview Ulrich. Ulrich would not give a statement, but did remark, “If you did something with somebody, wouldn’t you rather talk to them first before giving a statement?” By the time the investigation was reopened, the appellant was 26 years old and was living in North Carolina. His mother was living in North Carolina also. They had moved there in late 1995.

As a result of Francis’s investigation, the appellant and Geralene Lincoln were arrested in North Carolina, on October 3 and October 6, 2002, respectively. Francis and Detective J.T. Brown, also of the “Cold Case Unit,” traveled to that state and, on October 8, 2002, obtained a tape-recorded statement from Geralene. That afternoon, they interviewed the appellant at the Wilkes County Sheriffs Department in Wilkesboro. The appellant gave oral and tape-recorded statements during that interview.

After he was charged, in the Circuit Court for Baltimore City, with murder and conspiracy to commit murder in the death of his father, he moved to suppress the statements, on the ground that they were not voluntarily made. At the suppression hearing, Francis testified as follows about the interview of the appellant and the statements he made. The interview took place in a 6x9 room. The appellant was sitting in a chair at the table in the room.

He was not handcuffed. Francis ascertained that the appellant was not under the influence of alcohol or drugs and that he was a high school graduate. Francis advised the appellant of his Miranda rights. 4 The appellant initialed and signed the appropriate places on the “Explanation of Rights” form to indicate that he understood ¹⁷⁷ them. He waived his rights and agreed to answer questions without having an attorney present.

According to Francis, neither he nor Brown threatened or coerced the appellant into waiving his rights or giving a statement. During the interview, they did not make any promises to the appellant, or say or do anything to make him think they would advocate for him with the Maryland or North Carolina authorities. They did not otherwise suggest that they might recommend the appellant’s release if he waived his rights and gave them a statement. They did not threaten to use or use physical force.

During the interview, the appellant never asked to use the bathroom, for medicine, or for food or beverages. The entire interview lasted one hour and 30 minutes, from when the appellant waived his Miranda rights through the conclusion of his tape-recorded statement. At the outset of the interview, Francis told the appellant the detectives were there to discuss Lincoln, Sr.’s murder. He placed two large files for the case on the table in front of the appellant.

He told the appellant he was “willing to discuss the contents of the case files” with him. The appellant denied having any knowledge about the murder. Francis removed three photographs from the files and showed them to the appellant. The first was a photograph of the appellant.

On the back was written, in messy script that looks to have been written using an opposite writing hand: “That’s Junior whose father he and I killed for Ms. Geralene.” The statement was signed, “John Ulrich, 9-6-02.” Although worded as if written by Ulrich, the statement, signature, and date all were written by Francis. The second photograph was of John Ulrich. On the back was written, in print, “This is John[.] Junior Said He Hit Junior’s Father in the Head, While They Smoked Weed With Him And Killed Him[,]” followed by the signature and date, “Monique Peterson, 8-22-02.” Although seeming to have been written by Peterson, the statement, signature, and date all were written by Francis. ¹⁷⁸ The third photograph was of the appellant’s mother. On the back was written, in the same messy script on the reverse of photograph one: “That’s Ms. Geralene.

She set up the murder of Junior’s dad.” The statement was unsigned, but was dated 9-6-02. This statement and date also were written by Francis. The appellant did not ask Francis who wrote the statement and Francis did not identify the writer. Francis made plain on direct examination that the writings on the reverse sides of the photographs were “fake,” in that, at least for photographs one and two, the statements, signatures, and dates were made to look like they were written by Ulrich and Peterson, respectively, when in fact they were written by him.

He testified that the writings were “true,” in that the information they conveyed was “[biased on what was done in determining the investigation.” He acknowledged, however, that Ulrich had not admitted to killing Lincoln, Sr. According to Francis, after the appellant was shown the photographs and writings on their reverse sides, he continued to deny knowing anything about the murder. He did not make any admissions and his demeanor did not change. Francis then played for the appellant excerpts of the tape-recorded statement the appellant’s mother had given earlier that day. The excerpts did not implicate the appellant in the murder.

Francis told the appellant that Geralene in fact had given a statement confessing to the murder and implicating him and Ulrich, however. According to Francis, at that point, the appellant’s “shoulders slumped,” he “appeared defeated,” and he said he wanted to talk about the murder. The appellant proceeded to tell Francis that, on the night of the murder, he and Ulrich went to Lincoln Sr.’s house, where all three smoked marijuana. Ulrich then produced a wooden ax handle and hit Lincoln, Sr. on the head with it.

The appellant left the house, walked outside, and waited for Ulrich to come out. After making the oral statement, untaped, the appellant made a statement that was tape-recorded, to the same effect. In the taped statement, the appellant said he was speaking ¹⁷⁹ freely and voluntarily and that he had not been made any promises or coerced or threatened. The tape-recorded statement was moved into evidence at the hearing.

The appellant testified about the interview. Much of his version of what happened was rejected by the hearing judge. For example, the appellant complained that he repeatedly requested a lawyer, to no avail, and that Francis told him if he cooperated by giving a statement he would “get to walk.” The court discredited that testimony. The appellant acknowledged that he had “freely and willingly provid[ed] the statement,” but said he had thought the police considered his involvement in the murder to have been minimal and that Ulrich was their true target.

The appellant testified that Francis showed him his own picture and the picture of Ulrich; and he had thought that the writing on the reverse side of his photograph was by Ulrich and the writing on the reverse side of Ulrich’s photograph was by Peterson. He claimed not to have been shown the photograph of his mother or the writing on its reverse side. When asked why he made the oral and taped statements about the murder, he did not cite the writings on the photographs as a reason. On cross-examination, the appellant acknowledged that he had a prior conviction of possession with intent to distribute crack cocaine.

The hearing court made its ruling the day after the hearing ended, and after the judge had had an opportunity to listen to the tape-recorded statement. The court found that Francis had engaged in “a form of a ruse” that involved “a series of clever misrepresentations” designed to mislead the appellant by “suggesting things to him that ... were sort of consistent with the State’s theory of what had occurred!,]” but were not true, and at the same time creating a “sense of security.” The court viewed the ruse as probably being “within the range of potential ruses that are acceptable ruses” and not “reaching] the level of being impermissible.” The court was persuaded, ¹⁸⁰ by the total circumstances, that the appellant’s “will was not overborne” and his statement “was voluntary.” STANDARD OF REVIEW In reviewing the denial of a motion to suppress, we are limited to the record of the suppression hearing. State v. Nieves, 383 Md. 573, 581 , 861 A.2d 62 (2004); Faulkner v. State, 156 Md.App. 615, 640 , 847 A.2d 1216 (2004). We consider the evidence in the light most favorable to the prevailing party, in this case, the State.

State v. Green, 375 Md. 595, 607 , 826 A.2d 486 (2003); Sellman v. State, 152 Md.App. 1, 15 , 828 A.2d 803 (2003). We accept the suppression court’s findings of first-level fact unless clearly erroneous, giving due regard to the court’s opportunity to assess the credibility of witnesses. Sifrit v. State, 383 Md. 77, 92-93 , 857 A.2d 65 (2004); McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 (1992). “[B]ecause the issue of voluntariness is a mixed one of law and fact, we undertake a de novo review of the trial judge’s ultimate determination.” Taylor v. State, 388 Md. 385 , 879 A.2d 1074 (2005). DISCUSSION The appellant contends his statement was involuntary because, after creating an environment that made it appear safe for him to speak, the police deceived him by using fabricated documents about the evidence against him.

The State responds that, “in the case at bar, the use of deception was not so extreme as to be necessarily coercive.” It asserts that the hearing court correctly determined that the appellant’s will was not overborne by the use of deception. “Only voluntary confessions are admissible as evidence under Maryland law.” Knight v. State 381 Md. 517, 531 , 850 A.2d 1179 (2004). “In order to be deemed voluntary, a confession must satisfy the mandates of the U.S. Constitution, the Maryland Constitution and Declaration of Rights, the ¹⁸¹ United States Supreme Court’s decision in Miranda, and Maryland non-constitutional law.” Id. Under Maryland non-constitutional law, “[a] confession is voluntary if it is ‘freely and voluntarily made’ and the defendant making the confession ‘knew and understood what he [or she] was saying’ at the time he or she said it.” Knight, supra, 381 Md. at 531-32 , 850 A.2d 1179 (quoting Hoey v. State, 311 Md. 473, 480-81 , 536 A.2d 622 (1988)). Otherwise stated, the test of the admissibility of [a] confession is whether [the accused’s] will was overborne at the time that 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,”.... So that ... the question is not whether the accused was frightened, but whether his disclosures to the officers were freely and voluntarily made at a time when he knew and understood what he was saying.

State v. Tolbert, 381 Md. 539, 558 , 850 A.2d 1192 (2004) quoting State v. Hill, 2 Md.App. 594, 601-02 , 236 A.2d 27 (1967). Likewise, “in order to pass federal and Maryland constitutional muster, a confession must be voluntary, knowing, and intelligent.” Harper v. State, 162 Md.App. 55, 72 , 873 A.2d 395 (2005). Upon a proper challenge, the State bears the burden of showing, affirmatively, that the defendant’s inculpatory statement was made freely and voluntarily; and must so prove by a preponderance of the evidence, if the challenge is made pretrial. Winder v. State, 362 Md. 275, 306 , 765 A.2d 97 (2001).

Ordinarily, we look to the “totality of the circumstances” in determining whether a statement was given voluntarily. Knight, supra, 381 Md. at 533, 850 A.2d 1179 . Among the non-exhaustive list of factors to be considered in determining voluntariness are the defendant’s age, physical condition, mental capacity, background, intelligence, education, and experience; the length of the interrogation and the number of officers present; and the manner in which the interrogation was conducted. Winder, supra, 362 Md. at 307 , 765 A.2d 97 . ¹⁸² Not all of the multitude of factors that may bear on voluntariness are necessarily of equal weight.

Williams v. State, 375 Md. 404, 429 , 825 A.2d 1078 (2003). The Court of Appeals has held that, when a confession is “preceded or accompanied by threats or a promise of advantage,” those factors are “transcendent and decisive,” and the confession will be deemed involuntary “unless the State can establish that such threats or promises in no way induced [it].” Id. See also Taylor, supra, slip op. at 18; Knight, supra, 381 Md. at 533, 850 A.2d 1179 ; Winder, supra, 362 Md. at 309 , 765 A.2d 97 ; Hillard v. State, 286 Md. 145, 153 , 406 A.2d 415 (1979). Other factors, such as creating an atmosphere that is conducive to making a statement, in that it appears safe and friendly, do not automatically render a confession involuntary.

In Rowe v. State, 41 Md.App. 641, 644 , 398 A.2d 485 (1979), we rejected the defendant’s assertion that his statement was involuntary because “the atmosphere surrounding the interrogation was too compatible.” (Emphasis omitted.) There, the interrogating officer explained to the [defendant] that the officer had known what a “no good son-of-a-bitch” the victim had been, and “that the only thing that we wanted to do really was to shake the hand of the man that murdered him.... ” With a classic non-verbal act which in itself might have constituted a confession, the [defendant] offered his hand to the officer. Id. (internal footnote omitted). The defendant argued that the officer’s statement was proscribed “psychological coercion.” Disagreeing, we stated, “An enticement is only improper when ‘the behavior of the State’s law enforcement officials was such as to overbear [the appellant’s] will to resist and bring about confessions not freely self-determined....’” Id. at 645 , 398 A.2d 485 (quoting Rogers v. Richmond, 365 U.S. 534, 544 , 81 S.Ct. 735 , 5 L.Ed.2d 760 (1961)).

Likewise, in Fuget v. State, 70 Md.App. 643, 651 , 522 A.2d 1371 (1987), this Court rejected the defendant’s argument that he was coerced into making a statement because he was “deceived by ‘[the officer’s] smile along with coddling words ¹⁸³ and ... sympathetic sounds.’ ” We observed that, “[tjhough the interrogation technique employed by [the officer] may have been somewhat unique, we are unwilling to conclude that her smile, coddling words, or sympathetic sounds coerced the [defendant] into making an incriminatory statement.” Id. at 652 , 522 A.2d 1371 . The use of deception by the police also is a factor to be considered in determining whether, given the totality of the circumstances, the defendant’s will was overborne. Trickery or deceit “short of an overbearing inducement is a Valid weapon of the police arsenal.’ ” Ball v. State, 347 Md. 156, 178 , 699 A.2d 1170 (1997) (citation omitted). In Ball , the defendant argued on appeal that a police detective had used “psychological coercion” to obtain his confession to a murder.

The detective wrote out two scenarios of how the murder had taken place, one of which implicated the defendant as the killer, but portrayed him positively, and the other of which implicated him as the killer, but portrayed him negatively; the defendant reacted by confessing to the positive portrayal. Concluding that there was “no indication that [Ball’s] will was overborne” by the police tactic, the Court observed: A confession clearly is not voluntary if it is the product of physical or psychological coercion. A person who has committed an illegal act, however, is not always eager to admit his or her wrongdoing. Police officers, charged with investigating crimes and bringing perpetrators to justice, are permitted to use a certain amount of subterfuge, when questioning an individual about his or her suspected involvement in a crime.

Id. at 178-79 , 699 A.2d 1170 (internal citations omitted) (emphasis added). The Court of Appeals has warned, however, that, although “[a] degree of police deception to obtain a confession is tolerated,” there are “limits to the type of police deception which will be tolerated without rendering a confession involuntary, particularly with regard to deception concerning consti ¹⁸⁴ tutional rights.” Lewis v. State, 285 Md. 705, 721-722 , 404 A.2d 1073 (1979). In that case, the defendant was interviewed by the police on and off for two days about the murder of his wife and daughter, during which the police allegedly told him that, “if he requested a lawyer he would be labeled a murderer”; and that “asking for a lawyer amounted to an admission of guilt,” accusations the police denied. Id. at 720-21 , 404 A.2d 1073 .

The trial court never resolved the factual dispute over whose story it believed about the interrogation, and the Court of Appeals reversed Lewis’s conviction on another basis. In doing so, it found “[particularly troublesome” “the allegations of the police mis-statements concerning requests for an attorney.” Id. at 720 , 404 A.2d 1073 . In a number of cases, this Court has held that' confessions were voluntarily obtained notwithstanding the use of deceptive police tactics. In Hopkins v. State, 19 Md.App. 414, 424 , 311 A.2d 483 (1973), we held that the defendant’s statement was voluntary even though it was given in reliance on an interrogating officer’s false representation that an accomplice had confessed and implicated him.

(Citing Frazier v. Cupp, 394 U.S. 731, 739 , 89 S.Ct. 1420 , 22 L.Ed.2d 684 (1969) (holding that confession was voluntary when police falsely told the defendant that his associate had confessed).) Likewise, in Watkins v. State, 59 Md.App. 705, 718 , 478 A.2d 326 (1984), we upheld a confession obtained after a police detective falsely told the defendant that his confederates had implicated him in the murder. In Finke v. State, 56 Md.App. 450, 489-90 , 468 A.2d 353 (1983), we held that the defendant’s confession to murder was voluntary even though the interrogating officer told him numerous lies about the state of the evidence against him: that he had failed a polygraph test; that his three-year-old cousin could identify him as the killer; that his fingerprints were recovered from the crime scene; that two eyewitnesses had seen him enter the house where the murder was committed and two eyewitnesses had seen him leave; and that “according to an expert he would be unable to remember the incident[.]” ¹⁸⁵ More recently, in Whittington v. State, 147 Md.App. 496, 525-27 , 809 A.2d 721 (2002), we held that a defendant’s confession was voluntary even though an interrogating officer staged a fake “blow back” test, in which a police evidence technician purported to show the defendant, scientifically, that she had gunshot residue on her hands, and even though the defendant was told, falsely, that she had “failed miserably” a “polygraph test.” The defendant confessed 15 hours after the “blow back” test was administered. This Court rejected the defendant’s contention that “police deception with regard to the use of bogus scientific procedures is inherently more coercive than other forms of deception” and therefore should render consequent confessions involuntary per se. Id. at 518, 809 A.2d 721 .

We disagreed, adhering to “the totality of the circumstances” test for voluntariness and concluding that the “total circumstances” in that case, including the fake gunshot residue test and the passage of time between the test and the confession, showed that the defendant’s confessions had been made freely and willingly. In the ease at bar, the appellant concedes that “[s]ome deception is permitted in police interrogations.” He argues, however, that the deception used by the officers against him, which he characterizes as “the creation of false documents,” “is about as bad an instance of deception as can be found,” and should be a transcendent factor that renders his statement involuntary per se. He relies upon State v. Cayward, 552 So.2d 971 (Fla.Dist.Ct.App.1989). Cayward was an appeal by the State from a ruling suppressing the defendant’s confession to sexually assaulting and murdering his five-year-old niece.

The police had interrogated the 19-year-old defendant using phony scientific reports they had fabricated, one on stationery of the Florida Department of Criminal Law Enforcement, and the other on stationery of Life Codes, Inc., a scientific testing organization. The reports stated, falsely, that the defendant’s semen had been found on the victim’s underwear. The defendant repeatedly ¹⁸⁶ denied involvement in the crime until he was confronted with the fake reports, at which point he admitted his involvement. The Florida Court of Appeals affirmed the suppression ruling.

It agreed with the State that, generally, police use of deception does not render a confession involuntary per se, and voluntariness is assessed based on the total circumstances surrounding the confession. It held, however, that the “intrinsic distinction” between police use of verbal misrepresentations and police use of manufactured documents requires a “bright-line” rule that says “that the type of deception engaged in here has no place in our criminal justice system.” Id. at 973-74 . The court offered three reasons to support adopting a bright-line rule. First, it opined that a “tangible, official looking report[ ]” “purporting] to be authoritative” is more likely to “impress” a suspect, when presented to him in the “atmosphere of confrontation” that exists during police interrogation, and hence is inherently coercive psychologically, much as the threat or application of force is inherently coercive physically.

Id. at 974 . Second, while the suspect and the public expect that the police will use some deception in interrogations, they do not expect that police will manufacture documents to induce confessions: “This is precisely one of the parade of horrors civics teachers have long taught their pupils that our modern judicial system was designed to correct.” Id. Finally, the court expressed practical concerns about the police use of false documents “beyond the inducement of a confession”; namely that, “[u]nlike oral misrepresentations, manufactured documents have the potential of indefinite life and the facial appearance of authenticity. A report falsified for interrogation purposes might well be retained and filed in police paperwork.

Such reports have the potential of finding their way into the courtroom[,]” and