Matthews v. State

CATHELL, Judge. Appellant, Melvin Matthews, was convicted in a jury trial in the Circuit Court for Montgomery County (Beard, J., presiding) of second degree rape and child abuse. He was sentenced to twenty years imprisonment for the rape conviction and to a concurrent fifteen-year term for the child abuse conviction. On appeal, appellant presents the following questions: 1.

Was Appellant’s self-incriminating statement involuntary and taken in violation of his Miranda[ 1 ] rights? 2. Did the lower Court err by allowing Appellant’s four year old daughter to testify? 3. Did the lower Court err by admitting hearsay evidence about what the alleged victim told her mother who in turn told it to an examining physician? 4. Was the evidence insufficient?

We shall begin our. discussion by briefly recounting the evidence presented at trial. ⁷³¹ According to the evidence solicited by the State, appellant had sexual relations with his four-year-old daughter. The child, who was ruled to be a competent witness, testified that her father had put his “private” into her “private.” Detective Rodney Hill testified that he began the investigation of the case, and that, when he questioned appellant, appellant denied committing any type of sexual act or abuse of the child. He also stated that he left appellant alone with Detective Scott Loomis, and that, when he returned, appellant admitted that he had had sex with the child. Detective Loomis testified that appellant admitted that he had put his penis into the child.

Medical evidence given by Dr. Nasreen Ahmed indicated that penetration had taken place, which, the doctor concluded, could have been by a penis. Appellant, testifying in his own defense, denied having any sexual relations with his daughter and denied abusing her. He also denied admitting any improper conduct to Detective Loomis or to Detective Hill. I. Appellant first contends that the trial court “erred by denying [his] motion to suppress his self-incriminating statement which was involuntary and taken in violation of [his] Miranda rights.” The State disagrees and suggests further that defense counsel had not properly preserved the issue for appeal.

At the suppression hearing, defense counsel expressly denied that she was arguing the Fifth Amendment; rather, she stated, she was simply challenging the voluntariness of the statements allegedly made by appellant. Consequently, it would seem that appellant’s three-pronged attack 2 of the trial ⁷³² court’s ruling on his motion to suppress properly survives only as to the third issue, its involuntariness, as the State contends. Be that as it may, even assuming that all of the issues raised were preserved, appellant still would not prevail in his challenge of the trial court’s denial of his motion. We explain.

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 trial. Trusty v. State, 308 Md. 658, 670-71 , 521 A.2d 749 (1987) (quoting Jackson v. State, 52 Md.App. 327 , 332 n. 5, 449 A.2d 438 , cert. denied, 294 Md. 652 (1982)); Watkins v. State, 90 Md.App. 437, 439 , 601 A.2d 1115 , cert. denied, 327 Md. 80 , 607 A.2d 921 (1992); Pharr v. State, 36 Md.App. 615, 618 , 375 A.2d 1129 , cert. denied, 281 Md. 742 (1977). We are further limited to considering only those facts that are most favorable to the State as the prevailing party on the motion. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990).

See also Simpler v. State, 318 Md. 311, 312 , 568 A.2d 22 (1990). In considering the evidence presented at the suppression hearing, we extend great deference to the fact-finding of the suppression hearing judge with respect 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 his findings are clearly erroneous.

Riddick, 319 Md. at 183 , 571 A.2d 1239 . Even so, as to the ultimate conclusionary fact of whether an action taken was proper, we must make our own independent 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 this in mind, we turn to the case sub judice.

The trial court, in ruling on the motion to suppress, said: ⁷³³ THE COURT: Thank you. Irrespective of all other considerations if an incriminating statement is made during a custodial interrogation and it is not voluntarily given then it is defective and inadmissible. The Court has to determine whether or not the statement made by Mr. Matthews during this interrogation is the product of an overborne will. For it to be admissible the Court has to be satisfied that it is voluntarily made, that it was intelligently made and that he in fact waived his right to have counsel.

The Court has to look at the totality of the circumstances under which the statement was obtained; whether or not there was any promise made to the defendant, whether or not he was threatened in any way, whether or not there was any deprivation or any coercive devices or methods used by the police. It is clear that he was in custody. It is clear that it was an interrogation. The Court does not find in this record anything to suggest that he was threatened in any way, made any promises, intimidated or denied any reasonable comfort that he would be or should have been accorded under the circumstances.

Mr. Matthews’s testimony when he testified in this proceeding today, he said quote he knew his rights and he understood his rights. There is nothing to suggest to this Court that he was threatened under the facts of this case. There has been some reference to a dog but there is also an explanation by Officer Loomis that this dog had nothing to do with the interrogation. He is here for examining packages and anything else that might indicate that there is a bomb in the courthouse or the lock-up or any facility related to this building.

So the canine coercion does not exist. It is not a factor in this ease. The language used by Mr. Matthews of where is my lawyer?; I determine that to be an inquiry. That is not a request for an attorney.

For the police to have something ⁷³⁴ on which to rely to consider it to be [a] reasonable demand for a lawyer it has to sound like a request or a demand for a lawyer. Assuming without deciding to the contrary that Mr. Matthews did in fact say where is my lawyer? on one or more occasions—he indicated two or three—it does not translate a fair understanding of that expression, in these circumstances does not translate to a request or a demand for counsel. So his preliminary statement or the first one given to Officer Loomis which obviously is an incriminating one was not improperly obtained from him by the police. a. Appellant first argues that, contrary to Edwards v. Arizona, supra, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , reh’g denied, 452 U.S. 973 , 101 S.Ct. 3128 , 69 L.Ed.2d 984 (1981), the police improperly initiated an interrogation about the child abuse charges when he was already represented by counsel in another matter.

Appellant insists that, because he asserted his right to counsel in the other (unrelated) case, the police did not have any right to initiate custodial interrogation regarding the child abuse in this case in the absence of his counsel. Appellant inaccurately states the import of the Edwards decision. In Edwards , the Supreme Court held that a custodial interrogation that took place the day after Edwards had requested his attorney (about the crimes for which questioning had previously been discontinued by his request for counsel) was violative of his constitutional right to have an attorney present during questioning. The dispositive difference, however, between the facts presented in that case and those presented in the case sub judice is the fact that, in Edwards , the interrogation related to the same charges for which the defendant had requested an attorney the day before.

Moreover, Edwards remained in custody between the end of the ⁷³⁵ first interrogation and commencement of the second interrogation. Appellant was not in custody at the time of his arrest on the child abuse charges. Rather, he was arrested in court while awaiting a hearing on a charge in a wholly unrelated matter, for which appellant was being represented by a public defender. That attorney testified that, when he asked to be allowed to speak with appellant, the deputy sheriff replied that “he couldn’t let me do that at that time,” and removed appellant from the courtroom.

Because of his obligations to other clients, the public defender was unable to follow until a later time. Appellant testified that, when he looked at the attorney, “he just told me [to] cooperate.” Appellant further stated that Detectives Hill and Loomis fully advised him of his rights and that he understood those rights, signed a waiver form, and agreed to answer the detectives’ questions. We perceive no constitutional violation under the facts as found by the trial court. While the Fifth Amendment guarantees the right to counsel during custodial interrogation, there must be an invocation of that right to trigger its protections.

In determining what constitutes an invocation of the Fifth Amendment right to counsel, we look first to Fare v. Michael C., 442 U.S. 707 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 , reh’g denied, 444 U.S. 887 , 100 S.Ct. 186 , 62 L.Ed.2d 121 (1979), where the Supreme Court held that a juvenile’s request that his probation officer be present during questioning did not per se invoke his Miranda right to consult with an attorney and have an attorney present during that questioning. The Court noted that the admissibility of the statements on which the Miranda waiver was made was to be judged on “the totality of the circumstance surrounding the interrogation.” Id. at 725 , 99 S.Ct. at 2572 . Furthermore, the defendant, in invoking his Fifth Amendment privilege, must make clear that he is requesting an attorney. Davis v. United States, — U.S. —, —, 114 S.Ct. 2350, 2356 , 129 L.Ed.2d 362 (1994).

We note further that, once a putative defendant properly invokes his right to counsel during a custodial interroga ⁷³⁶ tion, the authorities may, nevertheless, reinstitute interrogation on a wholly different matter without being in derogation of the Constitution. In Michigan v. Mosley, 423 U.S. 96 , 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975), Mosley was arrested for and questioned about a number of robberies. Although he declined to answer any questions, Mosley did not request an attorney. The authorities ceased their questioning of the defendant.

Two hours later, after again being advised of his rights, Mosley was questioned about an unrelated murder. The Supreme Court upheld the admissibility of incriminating statements elicited during the second round of questioning based on the fact that it “focused exclusively on ... a crime different in nature and in time and place” than the robberies about which he was previously interrogated. Mosley, 423 U.S. at 105 , 96 S.Ct. at 327 . No “repeated efforts to wear down [the suspect’s] resistance and make him change his mind,” id. at 105-06 , 96 S.Ct. at 327 , were engaged in and the second interrogation was limited to a crime not previously discussed.

With Mosley , we compare Edwards v. Arizona, supra, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 , relied on in large part by appellant. Although Edwards was advised of his rights prior to the second interrogation, he was questioned about' the same crimes for which he had been arrested and questioned the day before. The Court announced that, in order to safeguard the constitutional rights of an in-custody defendant, a waiver of those rights could not be established solely by showing that he responded to additional, police-initiated custodial interrogation, even if he had been advised of his rights prior to the questioning. The fact that appellant in the case sub judice was represented in an unrelated matter does not preserve his rights in this matter, and the fact that he invoked his right to counsel in that case is not tantamount to an invocation of his right to counsel during custodial interrogation on the charges stemming from his daughter’s allegations.

He was not in custody prior to initiation of the questioning concerning the child abuse charges and should not, as the trial court properly found, be considered to have had his will overborne. Appel ⁷³⁷ lant, thus, was required to request an attorney in order to invoke the protection of the Fifth Amendment for the charges underlying the case sub judice. We look now to whether appellant’s alleged request for an attorney was actually a request therefor. b. Appellant complains that he did, in fact, request an attorney by asking two or three times, “Where’s my lawyer?” The trial court ruled that this interrogative was not tantamount to a request for counsel.

We agree. A suspect must clearly request an attorney. See Davis, supra, — U.S. at —, 114 S.Ct. at 2356 . Appellant insists that asking the whereabouts of his attorney constituted an unequivocal request therefor.

Not so. Even his counsel asserted, “I conceded that Mr. Matthews asking where his lawyer was was not a clear and unequivocal statement as some of the other cases so nicely put it. I think that obviously is what the Court has to determine.” The defendant in Davis had been given his Miranda rights and interrogated for an hour and a half when he said, “Maybe I should talk to a lawyer.” Id. at —, 114 S.Ct. at 2353 . The interrogator asked him if he was asking for a lawyer and he responded negatively.

After another hour of interrogation, he unequivocally asked for a lawyer and the questioning ceased. When considering whether the initial statement, “Maybe I should talk to a lawyer,” was, in fact, a request for a lawyer, the Supreme Court opined: The applicability of the “ ‘rigid’ prophylactic rule” of Edwards[ 3 ] requires courts to “determine whether the accused actually