Marr v. State

EYLER, Judge. Nathaniel Damian Marr, appellant, was convicted by a jury sitting in the Circuit Court for Prince George’s County of attempted second degree murder and use of a handgun. He was sentenced to consecutive terms of imprisonment of thirty and twenty years. Questions Presented 1.

Did the trial court err in denying the motion to suppress Appellant’s statements to the police? 2. Did the trial court err in denying Appellant’s motion for a mistrial and in refusing to reopen the suppression hearing? 3. Did the trial court err in refusing to give requested instructions? A. Did the trial court err in refusing to instruct the jury that a defendant does not forfeit his right to self-defense by arming himself in advance if he does not seek ¹⁵⁸ the encounter and has reason to fear an unlawful attack on his life?

B. Did the trial court err in refusing to instruct the jury on [its] duty to assess reasonableness from the defendant’s perspective at the time of the incident? Facts Motion to Suppress The facts, as developed at the hearing on appellant’s motion to suppress, are in substance but not verbatim taken from appellant’s brief.. On December 4, 1998, Prince George’s County detectives obtained an arrest warrant for appellant in connection with the attempted murder of Kevin Jackson on that same date. Police detectives “held” the warrant, which meant the warrant was not entered into the computer.

One of the reasons given by the detectives for holding the warrant was to “prevent the attorney from coming in and assisting the defendant.” On December 14, 1998, Detective Norman Miller received a telephone call from Steve Kupferberg, Esquire, who had represented appellant over a number of years in a number of cases, and who had been retained in December 1998, to represent appellant in connection with the investigation of crimes in the Seat Pleasant area. In that conversation, Mr. Kupferberg told Detective Miller that he represented appellant, inquired as to the existence of an arrest warrant, and indicated that if there were an outstanding warrant, appellant would turn himself in to police. Mr. Kupferberg made it clear to Detective Miller that appellant did not want to talk to police officers without Mr. Kupferberg being present. Detective Miller, although he knew that an arrest warrant was outstanding, did not inform Mr. Kupferberg of the warrant. .

Later that same day, Mr. Kupferberg faxed Detective Miller a letter confirming the telephone conversation, wherein Mr. Kupferberg confirmed that he represented the appellant and repeated his statement that, if a warrant were issued, appellant would turn himself in to police. Mr. Kupferberg also ¹⁵⁹ repeated appellant’s position that appellant would make no statement to police officers without his attorney being present, and Mr. Kupferberg asked Detective Miller not to question appellant outside of his presence. Mr. Kupferberg testified that he had discussed the letter with appellant and advised appellant that if he were arrested without Mr. Kupferberg being present, he should tell the police that he did not want to make a statement. On December 28, Mr. Kupferberg met with Ranganoff Manthrapagada, a member of the U.S. Attorney’s Office and a former Assistant State’s Attorney.

Mr. Kupferberg told Mr. Manthrapagada that he wanted appellant to turn himself in if there was an outstanding warrant and asked him to find out if there was one. Mr. Manthrapagada told Mr. Kupferberg that he would not do so. On December 30, at approximately 8:30 a.m., appellant was arrested pursuant to the warrant issued on December 4. Appellant and the arresting officer were in appellant’s apartment, the place where he was arrested, until 11:00 a.m., when homicide investigators arrived.

Appellant was transported to the Criminal Investigation Division Office and placed in an interview room. Appellant was alone in that room from 11:20 a.m. until 1:00 p.m. From 1:00 p.m. until 2:00 p.m., appellant was questioned by Detective Troy Harding about the murder of Arthur Can-oil and other shootings in the Seat Pleasant area. According to Detective Harding, appellant waived his Miranda, 1 rights.

Appellant was alone for approximately 20 minutes, but Detective Harding went back into the interview room at 2:20 p.m. ¹⁶⁰ and questioned him until 2:40 p.m. Detective Harding testified that appellant did not ask to talk to a lawyer. Other than a trip to the bathroom, appellant was alone in the interview room from 2:40 p.m. to 7:50 p.m. From 7:50 p.m. to 8:35 p.m., he was questioned by Detective Joseph McCann about several shootings, including the Arthur Carroll murder.

Appellant executed a written waiver of his Miranda rights. Except for another trip to the bathroom, appellant was alone in the interview room from 8:35 p.m. until 11:40 p.m. At 11:15 p.m., he appeared to be sleeping. From 11:40 p.m. until 12:40 a.m. on December 31, appellant was questioned by Detective Whitaker.

From 12:59 a.m. to 2:04 a.m., appellant was questioned by Detective Dwight DeLoatch. At 2:10 a.m., Detective McCann returned to the interview room. Detective McCann confronted appellant with information to the effect that Curtis Alston had confessed to his involvement in the Arthur Carroll murder and had provided information relating to other murders in the Seat Pleasant area. After being confronted with that information, appellant made an oral statement in which he acknowledged that he and Curtis Alston shot Carroll.

Appellant then gave a written statement which concluded at 3:45 a.m. Detective McCann continued to question appellant about other shootings, including Kevin Jackson, until 4:30 a.m. Detective McCann, knowing about Mr. Kupfer-berg’s letter to Detective Miller, testified that appellant never asked to talk to a lawyer, including Mr. Kupferberg. From 9:30 a.m. to 5:00 p.m. on December 31, appellant was questioned by Detective Ismael Canales.

Appellant executed another written waiver of his Miranda rights and wrote on the waiver, “I would like to stay and continue to talk with this investigator.” Detective Canales testified that he believed the note was necessary because the officers wanted to make sure that appellant did not mind continuing to talk. This episode of questioning produced four written statements concerning other shootings. Appellant was presented to the commissioner at 8:00 p.m. on December 31, almost 36 hours after his arrest. ¹⁶¹ Appellant testified that he and Mr. Kupferberg discussed Mr. Kupferberg’s telephone conversation with Detective Miller, the letter that Mr. Kupferberg faxed to Detective Miller, and that Mr. Kupferberg had advised him that he should not make a statement but should ask for his attorney. Appellant testified that he told Detective Harding at least three times that he wanted to talk to Mr. Kupferberg, but Detective Harding told him that he could not make a phone call because Mr. Kupferberg was representing appellant’s uncle and would not be able to represent appellant because it would be a conflict of interest.

At about 8:00 p.m. on December 30, according to appellant, he told Detective McCann that he did not want to talk without his lawyer present. He explained that he signed the Miranda waiver forms because he had been in the interviewing room so long and had repeatedly requested to contact his lawyer but that they had ignored the request. The hearing judge found that appellant was not a credible witness and that he had knowingly and voluntarily waived his Miranda rights. Trial Darrell Allen testified that at approximately 2:00 p.m. on December 4, 1998, he was leaning on Kevin Jackson’s car talking to Kevin Jackson, who was inside the car.

Allen stated that he stood up and saw a gun pointing at him so he started running. He heard at least eight gunshots. Kevin Jackson, pursuant to a plea agreement, testified that he had plead guilty to armed robbery and use of a handgun in connection with the robbery and murder on November 29, 1998, of Ronald Muse, appellant’s cousin. He also had plead guilty to possession of cocaine and transporting a handgun.

Jackson elaborated and stated that on November 29, 1998, he, Jerome Wright, and Arthur Carroll had gone to appellant’s house to rob him. Appellant was not at home, but Ronald Muse was present, and Arthur Carroll gun-whipped, shot, and killed Ronald Muse. ¹⁶² Jackson farther testified that, on December 4, 1998, he was in his car when Darrell Allen came over to talk to him. He heard Allen yell and saw him run. Jackson attempted to drive away but his car would not accelerate, so he was “just in the middle of some fire.” Jackson got out of the car and ran.

He stated that he had not seen the assailant. In his statement to police, appellant admitted that he wanted to speak to Jackson about his alleged involvement in the shooting of Ronald Muse, but that when he walked up to the car, he saw that Mr. Jackson had a gun, and he fired at Mr. Jackson at that time. The State and appellant stipulated that Jerome Wright, if called to testify, would testify that he gave a statement to Detective Harding on February 4, 1999, wherein he stated that Arthur Carroll shot Ronald Muse. It was further stipulated that, subsequently, Mr. Wright testified under oath in a court hearing that Kevin Jackson was the person who shot Ronald Muse.

Discussion 1. Appellant first contends that the circuit, court erred in denying his motion to suppress his statements to police based on (a) the lengthy duration of the custody and interrogation, (b) the failure to take appellant before a commissioner without unnecessary delay, and (c) the refusal of the officers to disclose the existence of the warrant and to honor appellant’s right to counsel. Appellant concludes that, because of the above facts, the statements were involuntary under the federal and state constitutions as well as Maryland common law. Appellant does not rely on any legal authorities, however, except with respect to the duration of the custody. 2 ¹⁶³ In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the record of the trial.

See Maryland Rule 4-252; see Trusty v. State, 308 Md. 658, 670 , 521 A.2d 749 (1987) (citing Jackson v. State, 52 Md.App. 327 , 332 n. 5, 449 A.2d 438 , cert. denied, 294 Md. 652 (1982)); Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95 (1989); Herod v. State, 311 Md. 288, 290 , 534 A.2d 362 (1987). In considering the evidence presented at the suppression hearing, “[w]e extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts.” Perkins v. State, 83 Md.App. 341, 346 , 574 A.2d 356 (1990). When conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that the findings are clearly erroneous. See Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990).

As to the ultimate conclusion, we must make our own constitutional appraisal by reviewing the law and applying it to the facts of the case. Id.; Perkins, 83 Md.App. at 346 , 574 A.2d 356 . With regard to the precise issue now before us, the volun-tariness of a confession, the Court of Appeals has explained: In reviewing the issue of whether a confession is voluntary under the Fourteenth Amendment, we accept the trial judge’s factual findings as correct unless they are clearly erroneous, and from these findings, along with a review of the entire record, make an independent determination of “the ultimate fact, namely, the existence or nonexistence of voluntariness.” Hoey v. State, 311 Md. 473, 484 , 536 A.2d 622 (1988) (citations omitted). Only where police conduct has overborne the defendant’s will to resist and produces a statement that was not freely self-determined will a confession be suppressed.

Ball v. ¹⁶⁴ State, 347 Md. 156, 179 , 699 A.2d 1170 (1997), cert. denied, 522 U.S. 1082 , 118 S.Ct. 866 , 139 L.Ed.2d 763 (1998). A confession’s voluntariness is measured by “the totality of the circumstances.” Reynolds v. State, 327 Md. 494, 504 , 610 A.2d 782 (1992), cert. denied, 506 U.S. 1054 , 113 S.Ct. 981 , 122 L.Ed.2d 134 (1993) (citations omitted); Hoey, 311 Md. at 483 , 536 A.2d 622 . In Hof v. State, 337 Md. 581, 596-97 , 655 A.2d 370 (1995), the Court of Appeals explained that the factors within the “totality of the circumstances” standard include: where the interrogation was conducted, its length, who was present, how it was conducted, its content, whether the defendant was given Miranda warnings, the mental and physical condition of the defendant, the age, background, experience, education, character, and intelligence of the defendant, when the defendant was taken before a court commissioner following arrest, and whether the defendant was physically mistreated, physically intimidated or psychologically pressured. (citations omitted); see also In re Eric F., 116 Md.App. 509, 517 , 698 A.2d 1121 (1997).

(a) Duration of the custody and interrogation With respect to duration of the custody, appellant relies on Young v. State, 68 Md.App. 121 , 510 A.2d 599 (1986). In Young , this Court held that, while the police technically apprised Young of his rights, the overall conduct of the police in interrogating him tended to negate the purpose of the Miranda safeguards and rendered Young’s confessions involuntary. In particular, we noted that the police interrogated the defendant “almost continuously” for twenty-two and one-half hours by means of a relay team. Id. at 130 , 510 A.2d 599 .

The officers also delayed Young’s presentment to a judicial officer although one was available, and despite an order by the judicial officer to take Young to a county detention center, the police returned Young to interrogation for further questioning where he eventually confessed. Id. at 126-27 , 510 A.2d 599 . In light of those circumstances, this Court held that the lengthy custody and interrogation, coupled with the police ¹⁶⁵ misconduct, rendered Young’s confession involuntary. Id. at 135 , 510 A.2d 599 .

This case, however, is distinguishable from the facts presented in Young . Although appellant was in custody for thirty-five and one-half hours prior to giving a statement, appellant acknowledges that he was interrogated for only fourteen hours, with the longest period of uninterrupted questioning lasting only about an hour. Officers gave appellant food, drink, and cigars. Officers also acceded to each request appellant made to be left alone or use the bathroom.

Appellant was never in any apparent discomfort. Additionally, we do not infer improper interrogation tactics from the fact that he confessed only after the detectives informed him that his friends implicated him in the murder. The tactics were not overbearing and did not induce appellant to speak at that time. (b) Failure to take appellant before a commissioner without unnecessary delay In arguing that his confession was involuntary and the motion to suppress should have been granted by the circuit court, appellant also points to the delay in taking him before a commissioner.

The Court of Appeals, in Johnson v. State, 282 Md. 314, 328-29 , 384 A.2d 709 (1978), held that a statement, voluntary or otherwise, is subject to exclusion if obtained in violation of the Maryland presentment statute — presently Rule 4-212(e). Thereafter, the General Assembly abrogated the ‘per se’ exclusionary rule of Johnson by enacting Md. Code, Cts. & Jud. Proc. § 10-912. See Young v. State, 68 Md.App. 121 , 510 A.2d 599 (1986) (noting that the General Assembly has directed Maryland courts not to continue application of the per se exclusionary rule).

Section 10-912 of the Maryland Courts & Judicial Proceedings Article provides: Failure to take defendant before judicial officer after arrest. (a) Confession not rendered inadmissible. — A confession may not be excluded from evidence solely because the defendant was not taken before a judicial officer after arrest ¹⁶⁶ within any time period specified by Title 4 of the Maryland Rules. (b) Effect of failure to comply strictly with Title 4 of the Maryland Rules. — Failure to strictly comply with the provisions of Title 4 of the Maryland Rules pertaining to taking a defendant before a judicial officer after arrest is only one factor, among others, to be considered by the court in deciding the voluntariness and admissibility of a confession. Thus, according to the statute, the delay in bringing the defendant before a judicial officer after an arrest is “only one factor, among others, to be considered by the court in deciding the voluntariness and admissibility of a confession.” Md.Code, Cts. & Jud.

Proc. § 10-912 (1999). (c) Refusal of the officers to disclose the existence of the warrant and to honor appellant’s right to counsel Appellant also emphasizes the earlier contact by his attorney with the police officers and the refusal of the officers to both disclose the existence of the warrant and to honor appellant’s right to counsel. Significantly, however, appellant did not request to speak with his attorney throughout the custodial interrogation. A suspect’s waiver of his Fifth Amendment rights is valid only if it is made “voluntarily, knowingly and intelligently.” Miranda, 384 U.S. at 444, 86 S.Ct. 1602 .

The inquiry into the validity of a waiver has two distinct dimensions. Colorado v. Spring, 479 U.S. 564 , 107 S.Ct. 851 , 93 L.Ed.2d 954 (1987); Moran v. Burbine, 475 U.S. 412, 421 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986). First, the waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Moran, 475 U.S. at 421 , 106 S.Ct. 1135 . 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.” Moran, 475 U.S. at 421 , 106 S.Ct. 1135 . ¹⁶⁷ Appellant does not explicitly challenge either prong of the waiver inquiry.

Instead, he argues that the trial court should have suppressed his confession because of the conduct of the police. We disagree based on the Supreme Court’s decision in Moran, 475 U.S. at 421-24 , 106 S.Ct. 1185 . The Moran Court held that the voluntariness of a defendant’s waiver of his Fifth Amendment right to remain silent and right to counsel was not vitiated by the failure of police to inform him that his attorney had telephoned for him at the police station during the course of police questioning. Id.

The Court concluded that “[ejvents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.”' Id. at 422, 106 S.Ct. 1135 . The Court further concluded that “the level of the police’s culpability in failing to inform [a defendant] of [his attorney’s] telephone call [does not have] any bearing on the validity of the waivers.” Id. at 423 , 106 S.Ct. 1135 . Appellant attempts to distinguish the instant case from Moran by alleging that, while the defendant in Moran at all relevant times was unaware of his sister’s efforts to obtain an attorney to represent him and of the attorney’s call to the police, in this case it was evident that he had retained a lawyer, had discussed the matter with the lawyer, and had decided to make no statement to the police if the attorney was not present. We find this distinction irrelevant to the validity of appellant’s waiver.

The Supreme Court’s assessment of police culpability in Moran is applicable: [W]hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent’s election to abandon his rights. Although highly inappropriate, even deliberate deception of an attorney could not possibly affect a suspect’s decision to waive his Miranda rights unless he were at least aware of the incident. Compare Escobedo v. Illinois, 378 U.S. 478, 481 , 84 S.Ct. 1758, 1760 , 12 L.Ed.2d 977 (1964) (excluding confession where police incorrectly told the sus ¹⁶⁸ pect that his lawyer “ ‘didn’t want to see’ him”). Nor was the failure to inform respondent of the telephone call the kind of “trick[ery]” that can vitiate the validity of a waiver.

Miranda, 384 U.S., at 476 , 86 S.Ct., at 1629 . Granting that the “deliberate or reckless” withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his ability to understand the nature of his rights and the consequences of abandoning them. Because respondent’s voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid. Moran, 475 U.S. at 423-24 ,1 06 S.Ct. 1135 .

Appellant asserts that the police should have informed his attorney, Mr. Kupferberg, of the outstanding warrant against appellant when he contacted them on December 14. This assertion does not affect the voluntariness of appellant’s waiver of his Miranda rights. Moran is again instructive. In Moran, the Court accepted, arguendo, the fact that the police may have engaged in highly reprehensible conduct in keeping an attorney from contacting his client, Burbine.

The Court eschewed any per se exclusion based on the police conduct itself and in emphasizing the highly subjective nature of the voluntariness decision. The Court’s opinion stressed the fact that in dealing with the privilege against compelled self-incrimination, the only pertinent criterion is the impact that official activity may have on a defendant’s subjective state of mind: At the outset, while we share respondent’s distaste for the deliberate misleading of an officer of the court, reading Miranda to forbid police deception of an attorney “would cut [the decision] completely loose from its own explicitly stated rationale.” Beckwith v. United States, 425 U.S. 341, 345 [ 96 S.Ct. 1612 , 48 L.Ed.2d 1 ] (1976). As is now well established, “[t]he ... Miranda warnings are ‘not themselves rights protected by the Constitution but [are] instead measures to insure that the [suspect’s] right against compul ¹⁶⁹ sory self-incrimination [is] protected.” New York v. Quarles, 467 U.S. 649, 654 [ 104 S.Ct. 2626 , 81 L.Ed.2d 550 ] (1984), quoting Michigan v. Tucker, 417 U.S. 433, 444 [ 94 S.Ct. 2357 , 41 L.Ed.2d 182 ] (1974).

Their objective is not to mold police conduct for its own sake. Nothing in the Constitution vests in us the authority to mandate a code of behavior for state officials wholly unconnected to any federal right or privilege. The purpose of the Miranda warnings instead is to dissipate the compulsion inherent in custodial interrogation and, in so doing, guard against abridgment of the suspect’s Fifth Amendment rights. Clearly, a rule that focuses on how the police treat an attorney — conduct that has no relevance at all to the degree of compulsion experienced by the defendant during interrogation — would ignore both Miranda’s mission and its only source of legitimacy. 475 U.S. at 424-25 , 106 S.Ct. 1135 .

Appellant also asserts that his Fifth Amendment right to counsel was invoked when his attorney, Mr. Kupferberg, contacted police and indicated that appellant would not talk to police without his attorney being present. This argument also runs contrary to the Court’s holding in Moran. Moran stresses that the privilege against compulsory self-incrimination is “a personal one that can only be invoked by the individual whose testimony is being compelled.” Id. at 1147 n. 4. In Moran, the Court held that the respondent validly waived his Miranda rights even though he was unaware that counsel who had been obtained on his behalf sought to speak with him but had been turned away by the police.

Moran v. Burbine, 475 U.S. at 421 , 106 S.Ct. 1135 . “Events occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right.” Id. at 422 , 106 S.Ct. 1135 . In a footnote, the Supreme Court rejected “a novel ‘agency’ theory of the Fifth Amendment under which any perceived deception of a lawyer is automatically treated as deception of his or her client. This argument entirely disregards the elemental and established proposition that the privilege against compulsory self-incrimination ¹⁷⁰ is, by hypothesis, a personal one that can only be invoked by the individual whose testimony is being compelled.” Id. at 433, fn. 4 , 106 S.Ct. 1135 . Both the holding and dicta in Moran preclude appellant’s attorney, on the facts of this case, from unilaterally invoking his client’s Fifth Amendment rights.

The right is a personal one which must be invoked by the individual whose testimony is being compelled, and there is no agency theory applicable to these facts under which appellant’s attorney could invoke that personal right on his behalf. Other jurisdictions have specifically concluded that pursuant to Moran, the failure of police to follow defense counsel’s instructions does not affect the validity of an otherwise valid waiver. See Bryant v. State, 314 Ark. 130 , 862 S.W.2d 215, 221-22 (1993); Commonwealth v. Cryer, 426 Mass. 562 , 689 N.E.2d 808, 812 (1998); State v. Peterson, 344 N.C. 172 , 472 S.E.2d 730, 733 (1996); Commonwealth v. Hall, 549 Pa. 269 , 701 A.2d 190, 197 (1997), cert. denied, 523 U.S. 1082 , 118 S.Ct. 1534 , 140 L.Ed.2d 684 (1998). In Bryant v. State, 314 Ark. 130 , 862 S.W.2d 215, 217 (1993), the trial court had denied defendant’s motions to suppress incriminating statements he had made to the police.

There, the defendant was wanted for questioning in a murder in Arkansas, was apprehended in Kentucky, and gave a statement to the Kentucky State Police. Id. at 218 . Meanwhile, the Arkansas public defender had learned that the police were looking for appellant and requested that the circuit judge appoint him as appellant’s attorney. Id.

The circuit judge responded that he would do so in the event of appellant’s apprehension. Id. The day after appellant’s statement to Kentucky police, the public defender called the jail in Arkansas and left a message that appellant was not to make a statement about the crime, and subsequently called the Kentucky jail and requested that the jailer instruct appellant not to give a statement. Id.

Thereafter, appellant called the attorney, and the attorney instructed him not to make a statement. Id. Appellant was extradited to Arkansas and gave a lengthy and incriminating recorded interview to Arkansas officials. Id. at 219 .

On appeal from the rulings on the ¹⁷¹ motion to suppress the statements, appellant argued, inter alia, that his Sixth Amendment rights were violated when police failed to follow his lawyer’s instructions not to question him. Id. at 221 . The Supreme Court of Arkansas noted that the attorney had not yet been appointed to represent appellant at the time the attorney gave the instruction to the jailers; appellant had already made the statement to the detective in Kentucky the day before the attorney called; and although the attorney instructed appellant not to make any statements, appellant subsequently chose to ignore counsel’s advice and gave additional statements. Id. at 221-22 .

The court affirmed the denial of the motion to suppress the statements and stated that it would do so even if the attorney were representing appellant at the time and even if the police failed to follow the attorney’s instructions. Id. at 222 . In so ruling, the court stated that “[t]he failure of police to follow counsel’s instructions does not affect the validity of an otherwise valid waiver.” Id. at 222 (citations omitted). Similarly, in Commonwealth v. Cryer, 426 Mass. 562 , 689 N.E.2d 808 (1998), the Supreme Judicial Court of Massachusetts found that the failure of New Hampshire police to inform Massachusetts police officers, interrogating appellant in a New Hampshire jail, that appellant’s attorney called instructing that there be no police interrogation of defendant unless an attorney was present, did not violate appellant’s Fifth Amendment rights.

While the Massachusetts officers were questioning appellant’s co-defendant, the attorney appointed to represent appellant on an unrelated burglary charge called the New Hampshire police and jail, and instructed them not to question appellant without the attorney’s permission. Id. at 811. The New Hampshire police did not, however, relay the attorney’s instructions to appellant or Massachusetts police. Thereafter, Massachusetts police began questioning appellant, at which time he made a full confession.

Id. On appeal, appellant argued that his confession was not voluntary because his waiver of his Miranda rights was not valid. Id. at 812. Relying on the Supreme Court holding in Moran, the Supreme Judicial Court of Massachusetts held that “under the ¹⁷² Fifth Amendment, the New Hampshire police had no obligation to inform either the Massachusetts officers or the defendant of the attorney’s instructions ... [and] the Massachusetts officers had no such obligation to the defendant, even if they had known or should have known about the attorney’s instructions.” Id. at 812.

In State v. Peterson, 344 N.C. 172 , 472 S.E.2d 730, 733 (1996) , a defendant contended that his Fifth Amendment right to counsel was invoked when his attorney requested that he be present during any interrogation of the defendant. There, the attorney testified that he had advised the defendant not to speak to anyone unless he was present and that he had informed the jailer not to let the defendant be interviewed by anyone without informing the attorney prior to the interview. Id. at 733. Police testified that before interviewing defendant, they apprised defendant of his rights, and defendant did not request an attorney until after he made an inculpatory statement.

The Supreme Court of North Carolina held that a defendant’s right to counsel is personal to him, and a defendant may waive this right despite his attorney’s advice to the contrary and his attorney’s instructions to investigating officers not to talk to him. Id. at 733-34. In Commonwealth v. Hall, 549 Pa. 269 , 701 A.2d 190, 197 (1997) , appellant sought to suppress his statement concerning his involvement in a murder. There, while being interviewed by police, the attorney representing appellant in a separate federal criminal matter called police.

Id. The police represented to the attorney that they were not questioning appellant, and would not allow the attorney to speak with appellant. Id. at 198. The attorney was not retained at the time of the call, nor was he subsequently retained.

Id. The appellant never requested an attorney during the questioning. Id. In affirming the trial court’s decision not to suppress the statement, the Supreme Court of North Carolina noted that “[s]ince one’s Sixth Amendment and Fifth Amendment rights are personal, they cannot be invoked by another party.” Id. at 285 (citation omitted).

The court also observed that “a person accused of a crime who has already engaged counsel ¹⁷³ may,