Miles v. State

BATTAGLIA, Judge. On April 2, 1997, appellant Jody Lee Miles shot and killed Edward Atkinson during a robbery. Appellant was tried by a jury in the Circuit Court for Queen Anne’s County from March 9 through March 12, 1998, after the case was removed from the Circuit Court for Wicomico County, and convicted of felony homicide, robbery with a deadly weapon, robbery and use of a handgun in the commission of a crime of violence. A sentencing hearing was conducted on March 17-18, 1998.

Appellant was sentenced to death on March 19, 1998. This case is before this Court on automatic appeal pursuant to Maryland Code, Art. 27, § 414 (1957, 1996 Repl.Vol., 1999 Supp.) and Maryland Rule 8-306(c). We find no errors that tainted the proceedings. Accordingly, we affirm appellant’s convictions and the sentence of death.

I. FACTS On April 2, 1997, Edward Joseph Atkinson was shopping at the Structure Store and Small’s Formal Wear located at a mall in Salisbury, Maryland. While arranging to pick up tuxedos at Small’s for a musical theater production he was ⁵⁰⁰ directing, he received a page. Atkinson immediately left the mall. Later that day, at approximately 5:30 p.m., Harry Hughes, Jr., a resident of Old Bradley Road in Mardela Springs, Maryland, saw Atkinson driving a black Toyota Canary down Old Bradley Road.

Within fifteen minutes, Hughes heard a single gunshot. On the same day, Atkinson failed to show up for dinner at his home with his parents and for his evening play rehearsal. His mother, Dorothy Atkinson, notified the Maryland State Police that her son was missing. The next day, April 3, 1997, at approximately 9:00 p.m., Maryland State Police officers located Atkinson’s Toyota near Old Bradley Road and found a cowboy boot print in the area.

In the morning of April 4, 1997, Robert Wayne Atkinson, the victim’s brother, and his friend who had joined the search, Sean Thomas Mooney, returned to Old Bradley Road to comb the area for additional information concerning Edward Atkinson’s whereabouts. After following footprints on the ground, Robert Wayne Atkinson discovered his brother’s body in a wooded area. Later that same day, Robert Wayne Atkinson and Sean Mooney also saw a gray colored car driven by the appellant heading towards the crime scene off of Old Bradley Road. The police arrived on the scene and determined that Edward Atkinson had been shot once in the back of the head and dragged to the location where his body was found.

The police noticed several additional cowboy boot prints near the body matching the one found the night before by the victim’s car, as well as scuff marks indicating a struggle at the side of the road. The police also discovered that Atkinson’s pockets had been emptied, but a search of the wooded area surrounding the crime scene failed to produce the victim’s wallet and keys. In contacting his brother’s credit card companies to report the theft, Robert Wayne Atkinson learned that the cards had been used after his brother had been reported missing. The cards had been used on April 3, 1997, at a Wal Mart ATM in Cambridge, Maryland, at the Tru Blu gas station in Harring ⁵⁰¹ ton, Delaware, at the Structure and J.C. Penney stores in the Dover Mall, and at Shuckers Pier 13 Restaurant in Dover, Delaware.

The personnel interviewed at these locations described the credit card holder as a white male, approximately 6T" to 6'3" tall, having medium length dirty blonde to brown hair, and wearing white jeans or pants with a white shirt and cowboy boots. (Two of the Tru Blu gas station attendants subsequently identified appellant as the Atkinson card user.) Composite sketches of the suspect were drawn and circulated on local news stations. During the next two weeks, news reports specifically mentioned the sighting of the murder suspect at the Tru Blu gas station. On April 15, 1997, James Towers (a resident of Caroline County) was in his home monitoring the police and fire department radio transmissions with his scanner.

Towers’ scanner was capable of picking up cellular phone conversations. At some point between 8:30 and 9:30 p.m., Towers overheard a conversation on his scanner where a male and female discussed the importance of staying away from the Tru Blu gas station in Harrington, Delaware. Because he thought this conversation might be related to the news story about the murder, Towers tape-recorded the conversation. Towers notified the Maryland State Police about the tape, who promptly picked up the tape from Towers’ residence.

The tape of the phone conversation included a discussion of concealing evidence, as well as descriptions of the geographic area surrounding the couple’s home. Deputy Ronald Russum of the Caroline County Sheriffs Department listened to the tape and identified the female voice as Jona Miles, who turned out to be appellant’s wife. Detective James Fraley of the Delaware State Police identified the voices as Jody and Jona Miles, based on his previous contacts with both individuals. By April 22, 1997, after locating Jona Miles’s residence, the Maryland and Delaware State Police applied for search warrants for 292 Cole Britt Lane, Harrington, Delaware and 27880 Whiteleysburg Road, Greensboro, Maryland, properties owned by Jona Miles and her parents.

The police executed ⁵⁰² the warrants on the same day. During the search of the properties, the police seized several items of clothing belonging to appellant and his 1996 W-2 tax statement as well as other papers, a razor, telephone bills, phone numbers from a caller identification box, and other pieces of note paper. Later that day, the police placed Jona Miles under arrest and questioned her at the Caroline County Sheriffs Department. Jona Miles gave a statement to the police and assisted them in ascertaining her husband’s whereabouts.

She also signed a consent to search form authorizing Corporal Fisher of the Maryland State Police Force to search her trailer located on her parents’ property at 27880 Whiteleysburg Road. Pursuant to the consent to search form, the police seized one pair of black men’s jeans and one pair of tan Structure dress pants. Jona Miles admitted that within a week after April 2, 1997, she had thrown two Structure shirts in a dumpster near Route 404 in Centreville, Maryland, and a few days later she had accompanied her husband as he disposed of his cowboy boots in a dumpster behind a shopping center in Milford, Delaware. Ms. Miles also dumped a handgun, holster and ammunition left by her husband in the Choptank River near Denton, Maryland.

With the assistance of Ms. Miles, the State Police were able to recover the gun in its holster and the ammunition, but were not able to find the clothing. As a result of information given to them by Jona Miles, the police arrested appellant while he was driving a gray Chevrolet Cavalier on Carmichael Road near a farm where he had been working. The contents of the car, including a cellular phone and the vehicle registration card, were inventoried and seized. During the evening of April 22, 1997, Corporal William V. Benton and Trooper John Psota began interviewing appellant, after he was advised of his Miranda rights.

Within minutes of the beginning of the questioning, appellant admitted that on April 2,1997, he met Edward Atkinson at a rest area near Old Bradley Road. Appellant claimed that he had been sent by a loan shark to collect a package from Atkinson, which the ⁵⁰³ victim did not produce. He stated that he became scared when Atkinson, who, at appellant’s direction, had his back to appellant the entire time, reached inside his jacket. Appellant, concerned that Atkinson had a gun, fired one shot striking the victim in the back of the head. 1 Afterwards, appellant found and removed Atkinson’s wallet and two briefcases from the car.

Although appellant returned to the scene on April 4, 1997 with the intention of burying Atkinson’s body, he fled when he saw all of the police cars in the area. On May 9, 1997, appellant was indicted and charged with felonious homicide, robbery with a deadly weapon, robbery, first-degree assault, and use of a handgun in a crime of violence in Wicomico County. On July 29,1997, the state filed a notice of its intention to seek a sentence of death pursuant to Maryland Code, Art. 27, § 412(b). On October 2, 1997, the case was transferred for trial to the Circuit Court for Queen Anne’s County.

The trial court heard pre-trial suppression motions pursuant to Rule 4-452 on January 28, 1998 and February 23-24, 1998, wherein appellant sought to suppress the contents of the taped cellular phone conversation with his wife, the items seized pursuant to the search warrant executed in the early afternoon of April 22, 1997, the items seized pursuant to Jona Miles’s consent to search, the gun and its accessories, appellant’s confession, and his cellular telephone seized pursuant to a post-arrest inventory of his vehicle. Based on these motions, the trial court ruled to suppress the taped cellular phone conversation as well as evidence seized pursuant to a search warrant where the affidavit of probable cause made explicit reference to the facts contained in the cellular phone conversation as a violation of the Maryland Wiretapping Statute, Maryland Code, Section 10-401 et seq. of the Courts and Judicial Proceedings Article (1977,1998 Repl.Vol., 2000 Supp.). The trial court refused to suppress ⁵⁰⁴ the remaining evidence, reasoning that the language “evidence derived therefrom” as contained in the statutory exclusionary provision of the Maryland Wiretapping Act did not include evidence provided by Jona or Jody Miles. On March 12,1998, the jury entered a guilty verdict for first-degree felony murder, robbery with a deadly weapon, robbery and use of a handgun in the commission of a crime of violence.

Appellant was acquitted on the charge of first-degree premeditated murder. Shortly after midnight on March 19, 1998, the jury sentenced appellant to death. The trial court merged the robbery conviction into the armed robbery count and imposed a five-year concurrent sentence for the handgun count. Appellant filed a Motion for New Sentencing and/or Imposition of Life Sentence in Lieu of Death Sentence on March 26, 1998.

The trial court held a hearing on this motion on May 7, 1998. The motion was denied on July 7, 2000.

II

ISSUES On appeal, appellant urges reversal on the following eight grounds: I. Did the trial court err in denying, in part, appellant’s motion to suppress pursuant to the Maryland Wiretapping Act, Maryland Code, § 10-401 et seq. of the Courts & Judicial Proceedings Article?

II

Did the trial court err in failing to fully disclose the contents of a jury note sent to the judge after seven hours of sentencing deliberations?

III

When, after seven hours of deliberations, the jury asked the trial court what to do if they were not unanimous, is it improper for the trial court to instruct the jury that unanimity is an absolute prerequisite and fail to instruct the jury that it could report its lack of unanimity?

IV

Did the trial court improperly limit what the jury could consider as mitigating evidence under section 8(b) of the sentencing form in the instructions provided to the jury? ⁵⁰⁵ V. Did the trial court err in refusing to instruct the jury during sentencing that it must find, as a non-statutory mitigating circumstance, that appellant was acquitted of premeditated murder?

VI

Were there ambiguities and inconsistencies present in the sentencing verdicts which would require that appellant’s death sentence be vacated?

VII

Did the trial court err in excusing four jurors for cause?

VIII

Did the trial court abuse its discretion in refusing to grant defense counsel’s motion for mistrial when it was discovered that the jurors had seen appellant in shackles? Facts relevant to each issue are set forth as necessary in our consideration of the issues below.

III

SUPPRESSION OF EVIDENCE UNDER THE MARYLAND WIRETAPPING ACT A motions hearing was conducted on January 28, 1998, in the Circuit Court for Queen Anne’s County. As pertains to the issues on appeal before this Court, the motions hearing before the trial court involved the suppression of evidence obtained as a result of the Maryland State Police having secured and used a recording made by a private citizen of a cellular phone conversation between Jona and Jody Miles on April 15, 1997. 2 Appellant argued that the Maryland Wiretap Statute protects all phone conversations, cellular or otherwise. See Maryland Code, § 10-401, et seq., of the Courts & Judicial Proceedings Article (1977, 1998 Repl.Vol., 2000 Supp.). Furthermore, appellant argued that evidence obtained in violation of Section 10-402 must be excluded from evidence at trial.

Appellant also argued for the suppression of evidence seized pursuant to search warrants executed at Jona Miles’s home, ⁵⁰⁶ from appellant’s car following his arrest, as well as suppression of the gun, ammunition and holster recovered by the Maryland State Police in the Choptank River and the statements given to police by both Jona and Jody Miles as evidence derived from the unlawful interception of the cellular phone conversation. At the suppression hearing, the trial court heard testimony from James Towers, the private citizen who taped the cellular phone conversation between Jona and Jody Miles and turned the recording over to the Maryland State Police. Towers testified that he had purchased his Radio Shack scanner several years prior to the recording of the conversation between the appellant and Jona Miles. The scanner in question was commercially available in Radio Shack stores and could monitor up to four hundred channels.

Towers explained that he took his scanner to the now defunct Kent Communications in Dover, Delaware, for alterations to enhance its functioning. Towers testified that his scanner.could pick up transmissions from cellular phones, cordless phones, emergency services such as police, fire and ambulance communications, and radio stations. Prior to April 15, 1997, Towers had never recorded a transmission received by his scanner and turned it over to the police. Because the affidavits of probable cause used to obtain search warrants for Jona Miles’s property contained explicit references to the taped conversation, the trial court suppressed the contents of the phone conversation as well as all items seized pursuant to the search warrants.

The trial court permitted the State to introduce the evidence to which Jona Miles led the police, namely the .22 caliber gun and its accessories, as well as the confession of appellant, Jody Miles. Appellant argues that this evidence should have been suppressed because of its connection to the wiretapped conversation. We disagree, based upon the attenuation doctrine and its application to this case. In 1977, the Maryland General Assembly enacted the Wiretapping and Electronic Surveillance Act (the Maryland Act), ⁵⁰⁷ codified at Section 10-401 et seq. of the Courts & Judicial Proceedings Article of the Maryland Code.

The Maryland Act makes the following conduct unlawful: (1) Wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication; (2) Wilfully disclose, or endeavor to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle; or (3) Wilfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle. Maryland Code, § 10-402(a) of the Courts and Judicial Proceedings Article (1977, 1998 Repl.Vol., 2000 Supp.). See Derry v. State, 358 Md. 325, 342-43 , 748 A.2d 478, 487-88 (2000); State v. Mazzone, 336 Md. 379, 382 , 648 A.2d 978, 979 (1994); Mustafa v. State, 323 Md. 65, 69 , 591 A.2d 481, 483 (1991); Ricks v. State, 312 Md. 11, 15-16 , 537 A.2d 612, 614 , cert. denied, 488 U.S. 832 , 109 S.Ct. 90 , 102 L.Ed.2d 66 (1988). The model for the Maryland Wiretapping Act was Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-2521 (2000) (the Federal Act).

The Federal Act was designed to balance the protection of an individual’s privacy with the enforcement of criminal laws. See United States v. Kahn, 415 U.S. 143, 151 , 94 S.Ct. 977, 982 , 39 L.Ed.2d 225, 234 (1974); Ricks v. State, 312 Md. at 13 , 537 A.2d at 613 . The Federal Act sets forth minimum national standards prohibiting both law enforcement officials and private individuals from intercepting and using the contents of oral and wire communications, while allowing law enforcement officials following specific procedures and under specific circumstances concerning the investigation of criminal offenses to obtain a court order to ⁵⁰⁸ intercept wire and oral communications related to the commission of a crime. 3 The Maryland Wiretapping Act provides broader protection than Title III in that Maryland requires consent from all parties before a conversation may be taped or otherwise intercepted in the absence of a court order authorizing law enforcement officials to conduct a wiretap. See Wood v. State, 290 Md. 579, 583 , 431 A.2d 93, 95 (1981); see e.g., Richard Gilbert, A Diagnosis, Dissection, and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U. Balt.

L.Rev. 183, 221 (1979)(explaining that “as written [the Maryland Act] guarantees to the people of Maryland, insofar as the state, itself, is concerned, greater protection from surreptitious eavesdropping and wiretapping than that afforded the people by the Congress”). At the times relevant here, the Maryland Wiretapping Act applied so long as at least one party to the conversation was physically located within the State of Maryland during the phone call. 4 See Mustafa, 323 ⁵⁰⁹ Md. at 70 , 591 A.2d at 483 (applying the Maryland Wiretapping Act to the taping of a conversation by one party to the conversation who was located in the District of Columbia and speaking with a person located in Maryland). Therefore, people using telephones in Maryland “may ordinarily rely on the fact that their conversation will not be surreptitiously recorded or, at the very least, that, unless done in strict conformance with the State law, a recording of their conversation will not be admitted into evidence in any Maryland court.” See Perry v. State, 357 Md. 37, 61 , 741 A.2d 1162, 1175 (1999)(emphasis in original). Although the Maryland Wiretapping Statute is grounded, to some extent, in Fourth Amendment jurisprudence, it contains its own exclusionary provision in Section 10-405 to deter law enforcement officials from unlawful or unauthorized interception of wire and oral communications.

This section provides as follows: Whenever any wire or oral communication has been intercepted, no part of the contents of the communication and no ⁵¹⁰ evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of this State, or a political subdivision thereof if the disclosure of that information would be in violation of this subtitle. Maryland Code, § 10-405 of the Courts and Judicial Proceedings Article (1977, 1998 Repl.Vol.). The exclusionary rule of Section 10-405 mirrors the language of the Federal Act’s exclusionary provision, as both provisions contain prohibitions against the use of not only the unlawfully intercepted communication, but also the “evidence derived therefrom.” 5 We now consider the application of the Maryland Wiretapping Act and its internal exclusionary provision to the facts of this case. On April 15, 1997, appellant called home to his wife, Jona Miles, from a cellular phone in his car. 6 The conversation taped by Mr. Towers emanates from this call.

The issue of whether a cellular phone call is protected under the Maryland Wiretapping Statute is a matter of first impression. The Maryland Act defines a “wire communication” as “any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception (including the use of a connection in a switching station) furnished or operated by any person licensed to engage in providing or operating such facilities for the transmission of communications.” § 10- ⁵¹¹ 401(l)(i). The transmission of a cellular phone communication to an ordinary telephone line involves the sound waves of the conversation being transmitted over the cellular phone company’s designated frequency to the cellular phone carrier’s transmitter, which sends the signal over a land-based wire to the ordinary telephone. See generally Raymond C.V. Macario, Cellular Radio-Principles and Design, (2nd ed.1997).

The use of the cellular phone company’s transmitter as a switching station for converting the communication to a land-based telephone line places cellular phone technology within the definition of a “wire communication” under Section 10-401(l)(i). 7 Furthermore, the Maryland Wiretapping Act specifically provides for the imposition of fines to punish persons who intercept cellular phone conversations. See § 10-402(e). The relevant portion states as follows: “... [A] person who violates subsection (d) of this section is subject to a fine of not more than $10,000 or imprisonment for not more than 5 years, or both. (2) If an offense is a first offense under paragraph (1) of this subsection and is not for a tortious or illegal purpose or for purposes of direct or indirect commercial advantage or private commercial gain, and the wire or electronic communication with respect to which the offense occurred is a radio communication that is not scrambled or encrypted, and:...

(ii) The communication is the radio portion of a cellular telephone communication, a public land mobile radio service communication, or a paging service communication, the offender is subject to a fine of not more than $500.” ⁵¹² Code, § 10-402(e) of the Courts and Judicial Proceedings Article. 8 Because we have determined that cellular phone communications with land phones are protected under the Maryland Wiretapping Act, we must address the existence and extent of any violations of the statute by the Maryland State Police requiring exclusion of the taped cellular phone conversation and any “evidence derived therefrom.” See § 10-405. Although Mr. Towers testified at the suppression hearing that he did not know that it was unlawful for him to tape the cellular phone conversation between appellant and his wife, we have held that an intentional interception of such a communication violates the Maryland Wiretapping Act. See Deibler v. State, 365 Md. 185, 199 , 776 A.2d 657, 665 (2001)(holding that “an interception that is not otherwise specifically authorized is done willfully if it is done intentionally — purposely”). What is clear from Mr. Towers’s testimony at the pre-trial suppression hearing is that he believed the conversation was related to the news story of the murder of Edward Atkinson he had heard previously that day and that the police might be interested in acquiring the information.

Although the police were not involved in the initial listening to or the taping of the conversation, the police were aware that the conversation had been taped by Mr. Towers without the consent of the parties to the conversation. This Court discussed the interplay of the statutory exclusionary rule with the other provisions of the subtitle in Perry , wherein we stated: To determine whether the disclosure of an intercepted communication is in violation of the subtitle [for purposes of the exclusionary rule of § 10-405], it is necessary to look at § 10-402(a)(2) and § 10-407. The former makes it unlawful ⁵¹³ for any person to “wilfully disclose” to any other person the contents of a wire communication “knowing or having reason to know that the information was obtained through the interception of a wire.. . communication in violation of this subtitle.” Section 10-407(c), however, provides, in relevant part, that any person who has received, “by any means authorized by this subtitle,” any information concerning a wire communication “intercepted in accordance with the provisions of this subtitle,” may disclose the contents of that communication, or the derivative evidence, while giving testimony in court under oath or affirmation. 357 Md. at 63 , 741 A.2d at 1176 . In the instant case, the Maryland State Police did not receive the tape or have authorization to play the tape.

Because the actions of the Maryland State Police were not authorized by the statute, we need not determine the willfulness of the police in disclosing the information contained within the tape under Section 10-402(a)(2), for as we have noted, “[w]hether the interception was done willfully or non-willfully, the violation of the person’s right to privacy was the same.” Perry, 357 Md. at 66 , 741 A.2d at 1178 . The Maryland State Police used the tape of the cellular phone conversation between Jona and Jody Miles for two investigatory purposes in violation of Section 10-405, as they used the tape for voice recognition and to provide facts to set forth in the affidavit for probable cause to search property belonging to Jona Miles and her parents. With regard to the issue of voice recognition, the State asserts that use of the tape to provide voice recognition as an investigative tool does not violate the Fourth Amendment. We agree with the State’s argument that under a Fourth Amendment analysis there can be no privacy expectation in one’s voice.

See United States v. Dionisio, 410 U.S. 1, 14 , 93 S.Ct. 764, 771 , 35 L.Ed.2d 67, 79 (1973)(noting that “the physical characteristics of a person’s voice, its tone and manner, as opposed to the content of a specific conversation, are constantly exposed to the public”). Nevertheless, a person’s voice is part and parcel of the contents of the conversation. The Maryland Wiretapping Act ⁵¹⁴ provides broader protection than the Fourth Amendment in that it makes it unlawful to “wilfully use, or endeavor to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subtitle.” Maryland Code, § 10-402(a)(3) of the Courts and Judicial Proceedings Article (emphasis added). Thus, the parties’ voices in the conversation would be protected under the statute.

See Perry, 357 Md. at 70 , 741 A.2d 1162, 1180 (1999)(holding that the tape itself and testimony identifying the voices on a tape recording of phone conversation made in violation of Section 10-402 is inadmissible under Section 10-405). In the instant case, the Maryland State Police disclosed the contents of the tape to two police officers. Deputy Ronald Russum of the Caroline County Sheriffs Department listened to the tape of the cellular phone conversation and was able to identify the female caller as Jona Miles based on his previous contact with her. Detective James Fraley of the Delaware State Police identified the male caller as appellant, Jody Miles, and the female caller as Jona Miles based on voice identification from prior contact with both individuals and from facts discussed in the conversation which disclosed the relative geographic location of the female caller.

Thus, the police, as an “authority of this State,” violated Section 10-405 by using the contents of the communication when they listened to the tape to engage in voice identification of Jona and Jody Miles. Therefore, we agree with the trial court’s decision to suppress the taped cellular phone conversation and any reference thereto from use at trial under Section 10-405. 9 ⁵¹⁵ Subsequent to the voice identification of Jona and Jody Miles by the police, Detective Fraley and Detective Alfred Parton of the Delaware State Police prepared an affidavit and application for a search warrant for the property belonging to Jona Miles and her parents. In establishing probable cause in the warrant application, Detective Fraley and Detective Par-ton made explicit reference to the facts contained in the taped cellular phone conversation, as well as disclosing to the Delaware magistrate that the facts were ascertained through listening to a tape made by a private citizen who intercepted the cellular phone call on his scanner. The search warrant was approved by a Delaware Justice of the Peace and executed on April 22, 1997 at 2:15 p.m., during which the police seized over twenty-four items belonging to appellant.

We conclude that, because the contents of the cellular phone conversation were disclosed in the affidavit of probable cause to obtain a search warrant for Jona Miles’s property in violation of Section 10-405, all evidence seized pursuant to execution of this warrant was properly suppressed at trial. 10 ⁵¹⁶ We must now consider the scope and application of the statutory exclusionary rule set forth in Section 10-405 with regard to the interpretation of the language “evidence derived therefrom” as we consider whether the trial judge erred in allowing the evidence obtained from leads provided by Jona Miles, including appellant’s black jeans and tan dress pants, and the murder weapon and its accessories to be introduced in evidence at trial. For purposes of analyzing the phrase “evidence derived therefrom,” we note that the primary illegality was the interception of the cellular phone call by James Towers on April 15, 1997. See Deibler, 365 Md. at 199 , 776 A.2d at 665 . Appellant argues that the language “evidence derived therefrom” requires the exclusion of all evidence obtained after listening to the tape, based on the belief that were it not for the violation of the wiretapping statute in listening to the unlawfully intercepted tape, the police would not have discovered the identities of Jona and Jody Miles resulting in both parties arrests, confessions, and additional production of evidence.

The State argues the same principles underlying the exclusionary rule of Mapp v. Ohio, 367 U.S. 643 , 81 S.Ct. 1684 , 6 L.Ed.2d 1081 (1961), apply to the interpretation of the language “no evidence derived therefrom” under the statutory exclusionary rule based on the fact that the statutory exclusionary rule is a preventive or deterrent device, such that rulings regarding the exclusion of evidence under Section 10-405 must be narrow enough to accomplish the deterrence goals without sacrificing valid investigatory evidence and material attenuated from taint. When considering the scope of a piece of legislation, this Court has stated, “the legislative intent of a statute primarily reveals itself, through its very own words.” Derry, 358 Md. at 335 , 748 A.2d at 483 . If the statutory language “is plain and free from ambiguity, and expresses a definite and simple meaning,” there is no need to look elsewhere to discern legislative intent. See Degren v. State, 352 Md. 400, 417 , 722 A.2d 887, 895 (1999).

However, this Court has frequently noted: ⁵¹⁷ While the language of the statute is the primary source for determining legislative intention, the plain meaning rule of construction is not absolute; rather, the statute must be construed reasonably with reference to the purpose, aim, or policy of the enacting body. The Court will look at the larger context, including the legislative purpose, within which statutory language appears. Construction of a statute which is unreasonable, illogical, unjust, or inconsistent with common sense should be avoided. Tracey v. Tracey, 328 Md. 380, 387 , 614 A.2d 590, 594 (1992) (citations omitted).

Prior to enactment of the current Maryland Wiretapping Act, this Court considered the scope of the exclusionary provision of the Federal Act as set forth in 18 U.S.C. § 2515 . See Carter v. State, 274 Md. 411, 423-24 , 337 A.2d 415, 422-23 (1975). Following our decision in State v. Siegel, 266 Md. 256, 272 , 292 A.2d 86, 95 (1972), where this Court had concluded that wiretapping cases must be considered under whichever statute was more constricting, we examined the facts of Carter under the Federal Act which was more-restrictive than the 1956 Maryland Wiretapping Act. See Carter, 274 Md. at 426 , 337 A.2d at 424 .

In Carter , the police had used illegal electronic surveillance in investigating the drug activities of the defendant, included the facts ascertained through the unlawful surveillance in an affidavit for probable cause to obtain a search and seizure warrant for defendant’s apartment, and failed to disclose to the issuing judge the fact that the information contained in the warrant was the product of an unauthorized wiretap in violation of the Maryland and Federal Wiretapping Acts. Id. at 419-20 , 337 A.2d at 420 . We found: The weight of authority in the state courts is in accord with the view that evidence derived as a result of a prior illegal search for, or seizure of, property, or knowledge gained through such an illegal search and seizure, cannot be used, because of its taint, as a valid basis to justify the existence of probable cause in a subsequent search and seizure war ⁵¹⁸ rant. See Annot., 143 A.L.R. 135 -140 (1943); Annot., 50 A.L.R.2d 531 , 569 (1956).

Thus, if any conversation of Carter or any conversation overheard upon his premises-whether he was present and participating in it or not-was subjected to a search and seizure by the use of any wire tap or eavesdropping device, in violation of his rights under the Fourth Amendment, as explicated in Alderman v. United States, supra, in Silverman v. United States, supra, [ 365 U.S. 505 , 81 S.Ct. 679 , 5 L.Ed.2d 734 (1961)] and Katz v. United States, supra, [ 389 U.S. 347 , 88 S.Ct. 507 , 19 L.Ed.2d 576 (1967)] any information garnered as “fruits” of such primary illegality and “come upon” by the “exploitation” of that illegality cannot, under the holdings in Silverthorne Lumber Co. v United States, supra, Nardone v. United States, supra, Wong Sun v. United States, supra, and Alderman v. United States, supra, be used as derivative evidence for an application for a search and seizure warrant; to hold otherwise would permit the prosecution to use knowledge acquired in violation of the Fourth Amendment and “gained by its own wrong.” The doctrine of the “fruit of the poisonous tree” although it excludes evidence obtained from or as a consequence of lawless official acts does not apply however if such evidence is “obtained from an independent source,” or such “connection may have become so attenuated as to dissipate the taint.” Id. at 438-39, 337 A.2d at 431 . Thus, we applied a Fourth Amendment exclusionary rule analysis to use of evidence derived from an unlawful -wiretap in holding that in cases where an affidavit of probable cause to issue a search warrant contained facts tainted by the illegal conduct of the police in the unlawful interception of telephonic communications, an evidentiary hearing must be conducted to determine whether the facts were the fruits of the poisonous tree or whether the taint had been purged by discovery of the facts through an independent source or attenuated from the original unlawful conduct. See Carter, 274 Md. at 443 , 337 A.2d at 434 (citing United States v. United States District Court, 407 U.S. 297 , 92 ⁵¹⁹ S.Ct. 2125 , 32 L.Ed.2d 752 (1972); Alderman v. United States, 394 U.S. 165 , 89 S.Ct. 961 , 22 L.Ed.2d 176 (1969); Nardone v. United States, 302 U.S. 379 , 58 S.Ct. 275 , 82 L.Ed. 314 (1937); People v. Mendez, 28 A.D.2d 727 , 281 N.Y.S.2d 608 (2d Dept., 1967)); see also Washburn v. State, 19 Md.App. 187, 201-202 , 310 A.2d 176, 184 (1973). In adopting the Federal Act, Congress did not intend to alter or circumvent the attenuation doctrine in adopting a statutory exclusionary rule.

See United States v. Giordano, 416 U.S. 505, 528-29 , 94 S.Ct. 1820, 1833 , 40 L.Ed.2d 341, 360-61 (1974). In Giordano , the Supreme Court emphasized the relevance of the attenuation doctrine to the exclusionary provision of the Federal Act by citing a portion of S.Rep. No. 1097, 90th Cong., 2d Sess. at 96, 106 (1968) which specifically noted that: “Section 2515 of the new chapter imposes an evidentiary sanction to compel compliance with the other prohibitions of the chapter. ... The provision must, of course, be read in light of section 2518(10)(a) discussed below, which defines the class entitled to make a motion to suppress.

It largely reflects existing law. It applies to suppress evidence directly ( Nardone v. United States, 302 U.S. 379 , 58 S.Ct. 275 , 82 L.Ed. 314 (1937)) or indirectly obtained in violation of the chapter. (Nardone v. United States, 308 U.S. 338 , 60 S.Ct. 266 , 84 L.Ed. 307 (1939).) There is, however, no intention to change the attenuation rule. ... Nor generally to press the scope of the suppression role beyond present search and seizure law. ...

But it does apply across the board in both Federal and State proceeding^].... And it is not limited to criminal proceedings. Such a suppression rule is necessary and proper to protect privacy. ... The provision thus forms an integral part of the system of limitations designed to protect privacy.

Along with the criminal and civil remedies, it should serve to guarantee that the standards of the new chapter will sharply curtail the unlawful interception of wire and oral communications.” Giordano, supra, 416 U.S. at 529-30, n. 17 , 94 S.Ct. at 1833, n. 17, 40 L.Ed.2d at 360-61, n. 17 (emphasis added). ⁵²⁰ The United States Court of Appeals for the Fourth Circuit has adopted the procedure of having a “taint hearing” regarding evidence resulting from a wiretap violation wherein the claimant has the initial burden of establishing a taint and the government may demonstrate that the taint was purged. See United States v. Apple, 915 F.2d 899, 906 (4th Cir.1990). Thus, not all evidence obtained following an unlawful wiretap must be suppressed under the federal statutory exclusionary rule. Therefore, we find that the scope and meaning of the words “no evidence derived therefrom” as used in the statutory exclusionary rule of the Maryland Wiretapping Act are best analyzed under the attenuation doctrine arising out of cases concerning unlawful searches and seizures under the Fourth Amendment.

See Ferguson v. State, 301 Md. 542, 548 , 483 A.2d 1255, 1257-58 (1984)(discussing Wong Sun v. United States, 371 U.S. 471 , 83 S.Ct. 407 , 9 L.Ed.2d 441 (1963)). Under the “fruit of the poisonous tree” doctrine, evidence tainted by Fourth Amendment violations may not be used directly or indirectly against the accused. See Nardone, 308 U.S. at 341 , 60 S.Ct. at 268 , 84 L.Ed. at 312 . However, there must be a “cause-and-effect” relationship or nexus between the “poisonous tree and its alleged fruit,” so as to prevent “an indiscriminate lapse into the logical flaw of post hoc; ergo, propter hoc (after this; therefore, because of this).” State v. Klingenstein, 92 Md.App. 325, 360 , 608 A.2d 792, 810 (1992), cert. granted, 328 Md. 462 , 615 A.2d 262 (1992), aff'd in part, rev’d in part, 330 Md. 402 , 624 A.2d 532 (1993), cert. denied, 510 U.S. 918 , 114 S.Ct. 312 , 126 L.Ed.2d 259 (1993)(internal quotations omitted).

In balancing the protections of the Fourth Amendment with the need for effective law enforcement, the Supreme Court has recognized three methods of purging the taint of the original unlawful conduct in cases where the exclusionary rule applies. First, evidence obtained after initial unlawful governmental activity will be purged of its taint if it was inevitable that the police would have discovered the ⁵²¹ evidence. See Nix v. Williams, 467 U.S. 431, 444 , 104 S.Ct. 2501, 2509 , 81 L.Ed.2d 377, 387 (1984). Second, the taint will be purged upon a showing that the evidence was derived from an independent source.

See United States v. Wade, 388 U.S. 218, 239-242 , 87 S.Ct. 1926, 1938-1940 , 18 L.Ed.2d 1149, 1164-1166 (1967). The third exception, and the one relevant to the case sub judice, will allow the use of evidence where it can be shown that the so-called poison of the unlawful governmental conduct is so attenuated from the evidence as to purge any taint resulting from said conduct. See Wong Sun, 371 U.S. at 488 , 83 S.Ct. at 417 , 9 L.Ed.2d at 455 . In Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975), the Supreme Court analyzed the application of the attenuation doctrine “at the crossroads of the Fourth and Fifth Amendments.” Id. at 591 , 95 S.Ct. at 2256 , 45 L.Ed.2d at 420 .

We adopted the test for attenuation, as set forth in Brown , in Ferguson v. State, 301 Md. at 549 , 483 A.2d at 1258 (considering the application of the attenuation doctrine to extrajudicial and in-court identification testimony given by the victim of a robbery, where the accused was arrested without probable cause). In Brown , the Supreme Court developed a three factor test for analyzing whether statements given in custody after the accused waives his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), must be excluded as fruits of an unlawful arrest where the accused was arrested without probable cause. See Brown, 422 U.S. at 591-92 , 95 S.Ct. at 2256 , 45 L.Ed.2d at 420 . In discussing the purpose of the exclusionary rule the Court stated: The rule is calculated to prevent, not to repair.

Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way — by removing the incentive to disregard it. Elkins v. United States, 364 U.S. 206, 217 , 80 S.Ct. 1437 , 4 L.Ed.2d 1669 (1960). But despite its broad deterrent purpose, the exclusionary rule has never been interpreted to proscribe the use of illegally seized evidence in all proceedings or against all persons. United ⁵²² States v. Calandra, 414 U.S.[ 338] at 348, 94 S.Ct. 613 , 38 L.Ed.2d 561 [ 1974].

Id. at 599-600, 95 S.Ct. at 2260 , 45 L.Ed.2d at 425 (internal quotations omitted). The Court found that although receipt of Miranda warnings alone is not per se dispositive of the issue of attenuation, it is an important factor in assessing the voluntariness of a confession. See id. at 603, 95 S.Ct. at 2261 , 45 L.Ed.2d at 427 . The Court held that an analysis of attenuation also requires consideration of the following factors: 1) the proximity between the actual illegality and the evidence sought to be suppressed; 2) the presence of intervening factors; and 3) the flagrancy of the governmental misconduct involved in the case.

See id. at 603-604 , 95 S.Ct. at 2261-2262 , 45 L.Ed.2d at 427 . In Brown , two police officers who had been investigating a recent murder, arrested the defendant without probable cause for the purpose of questioning him about the murder. Id. at 592 , 95 S.Ct. at 2256 , 45 L.Ed.2d at 420 . To accomplish this task, the police broke into the defendant’s apartment, searched it, then waited for the defendant to return to his apartment where the officers held him at gunpoint and placed him under arrest.

Id. at 593 , 95 S.Ct. at 2256-2257 , 45 L.Ed.2d at 421 . Following his arrest, the defendant waived his Miranda rights and gave two inculpatory statements to the police. Id. at 594-96, 95 S.Ct. at 2257-2258 , 45 L.Ed.2d at 421-422 . In holding that the defendant’s waiver of Miranda rights alone was insufficient, as an intervening factor, to purge the taint of the defendant’s illegal arrest, the Court emphasized the purposefulness of the official misconduct involved by explaining: The impropriety of the arrest was obvious; awareness of that fact was virtually conceded by the two detectives when they repeatedly acknowledged, in their testimony, that the purpose of their action was ‘for investigation’ or for ‘questioning.’ The arrest, both in design and in execution, was investigatory.

The detectives embarked upon this expedition for evidence in the hope that something might turn up. The manner in which Brown’s arrest was effected gives the ⁵²³ appearance of having been calculated to cause surprise, fright, and confusion. Id. at 605, 95 S.Ct. at 2262 , 45 L.Ed.2d at 428 . The United States Supreme Court further refined its analysis of the attenuation doctrine set forth in Brown v. Illinois, to include an exploration of voluntariness.

See United States v. Ceccolini, 435 U.S. 268, 276-77 , 98 S.Ct. 1054, 1060 , 55 L.Ed.2d 268, 277 (1978). The case involved a police officer’s unauthorized search of a cash register in a local flower shop and discovery of an envelope containing evidence relating to the gambling activities of Ceccolini. The police officer immediately questioned the clerk at the flower shop concerning the identity of the owner of the envelope without revealing to the clerk what it contained. Four months later the FBI interviewed the flower shop clerk who related what had occurred with the police officer.

Thereafter, the Government introduced testimony of the flower shop clerk, who volunteered to testify, at a perjury trial of Ceccolini. Ceccolini argued that the testimony of the clerk should have been suppressed as “fruit” of the police officer’s unlawful search of the register at the shop. The trial court suppressed the testimony of the flower shop clerk which was affirmed by the Court of Appeals for the Second Circuit. The Supreme Court reversed, citing Brown v. Illinois, in stating, “[e]ven in situations where the exclusionary rule is plainly applicable, we have declined to adopt a “per se or ‘but for’ rule” that would make inadmissible any evidence, whether tangible or live-witness testimony, which somehow came to light through a chain of causation” originating with constitutionally violative conduct.

Ceccolini, 485 U.S. at 276, 98 S.Ct. at 1060 , 55 L.Ed.2d at 277 . In Ceccolini , the court eloquently defined the role that “logical” causation has to the defining question: This, of course, makes it perfectly clear, if indeed ever there was any doubt about the matter, that the question of causal connection in this setting, as in so many other questions with which the law concerns itself, is not to be determined ⁵²⁴ solely through the sort of analysis which would be applicable in the physical sciences. The issue cannot be decided on the basis of causation in the logical sense alone, but necessarily includes other elements as well. Id. at 274 , 98 S.Ct. at 1059 , 55 L.Ed.2d at 276 .

The Court identified the voluntary aspect of a witness’s testimony as a break in the chain of taint emanating from the unlawful conduct because an individual has the “attributes of will, perception, memory and volition.” Id. at 277 , 98 S.Ct. at 1060 , 55 L.Ed.2d at 277 (quoting Smith v. United States, 324 F.2d 879, 881 (D.C.Cir.1963), cert. denied, 377 U.S. 954 , 84 S.Ct. 1632 , 12 L.Ed.2d 498 (1964))(footnotes omitted). The significance of a volitional act of a human being under the exclusionary rule cannot be underestimated because: [t]he proffer of a living witness is not to be mechanically equated with the proffer of inanimate evidentiary objects illegally seized. The fact that the name of a potential witness is disclosed to police is of no evidentiary significance, per se, because the living witness is an individual human personality whose attributes of will, perception, memory and volition interact to determine what testimony he will give. The uniqueness of this human process distinguishes the evidentiary character of a witness from the relative immutability of inanimate evidence.

Id. at 277 , 98 S.Ct. at 1060-1061 , 55 L.Ed.2d at 277 (quoting Smith v. United States, 324 F.2d at 881-882 ). In assessing the voluntariness of the witness’s conduct under the attenuation doctrine of the exclusionary rule, the Court explained: Witnesses are not like guns or documents which remain hidden from view until one turns over a sofa or opens a filing cabinet. Witnesses can, and often do, come forward and offer evidence entirely of their own volition. And evaluated properly, the degree of free will necessary to dissipate the taint will very likely be found more often in the case of live-witness testimony than other kinds of evidence. ⁵²⁵ Id. at 276-277, 98 S.Ct. at 1060 , 55 L.Ed.2d at 277 .

Thus, the voluntariness of a person’s actions in providing evidence or testimony should be considered as an intervening factor under the attenuation doctrine. See id. at 278-279 , 98 S.Ct. at 1061 , 55 L.Ed.2d at 278 . This is true even if a putative defendant is involved because exclusion of testimony is a perpetual disability: Another factor which not only is relevant in determining the usefulness of the exclusionary rule in a particular context, but also seems to us to differentiate the testimony of all live witnesses — even putative defendants — from the exclusion of the typical documentary evidence, is that such exclusion would perpetually disable a witness from testifying about relevant and material facts, regardless of how unrelated such testimony might be to the purpose of the originally illegal search or the evidence discovered thereby. Id. at 277 , 98 S.Ct. at 1061 , 55 L.Ed.2d at 277-78 .

We follow the lead of the numerous federal circuits and states that have applied Ceccolini. See Peavy v. WFAA-TV, Inc., 221 F.3d 158, 174 (5th Cir.2000), cert. denied, — U.S. —, 121 S.Ct. 2191 , 149 L.Ed.2d 1023 (2001); United States v. McKinnon, 92 F.3d 244, 247 (4th Cir.1996), cert. denied, 519 U.S. 1099 , 117 S.Ct. 784 , 136 L.Ed.2d 726 (1997); United States v. Hooton, 662 F.2d 628, 632-33 (9th Cir.1981), cert. denied, 455 U.S. 1004 , 102 S.Ct. 1640 , 71 L.Ed.2d 873 (1982); United States v. Stevens, 612 F.2d 1226, 1230 (10th Cir.1979), cert. denied, 447 U.S. 921 , 100 S.Ct. 3011 , 65 L.Ed.2d 1113 (1980); State v. Bravo, 158 Ariz. 364 , 762 P.2d 1318, 1327 (1988), cert. denied, 490 U.S. 1039 , 109 S.Ct. 1942 , 104 L.Ed.2d 413 (1989); People v. Briggs, 709 P.2d 911, 917 (Colo.1985). The first evidence we must consider is that provided by Jona Miles, who led the police to the discovery of the murder weapon and its accessories in the Choptank River, to appellant’s clothing and to appellant’s whereabouts on the day of his arrest. When Jona Miles was arrested on April 22, 1997, the police gave Jona her Miranda warnings, and she agreed to give a statement to the police.

An individual may validly waive his or her Fifth Amendment rights by making ⁵²⁶ incriminating statements subsequent to receiving the warnings required by Miranda. See United States v. Carson, 793 F.2d 1141, 1150 (10th Cir.1986), cert. denied, 479 U.S. 914 , 107 S.Ct. 315 , 93 L.Ed.2d 289 (1986). While an individual’s waiver of Miranda warnings taken alone would be insufficient to purge the taint of the original unlawful conduct under a Fourth Amendment analysis, Jona Miles’s conduct with regard to her actions following her statement to the police, manifesting those uniquely human attributes of perception, memory and volition, were “sufficiently an act of free will to purge the primary taint” associated with the intercepted phone call. Brown, 422 U.S. at 602 , 95 S.Ct. at 2261 , 45 L.Ed.2d at 426 (quoting Wong Sun, 371 U.S. at 486 , 83 S.Ct. at 416-417 , 9 L.Ed.2d at 454 )(internal quotations omitted).

Following her statement to the police, Jona Miles took the police to the Choptank River to show them where she had disposed of the murder weapon and its accessories, as well as to a dumpster located off of Route 404 near the Choptank River in Denton, Maryland where she had disposed of appellant’s clothing. She also provided the police with information concerning appellant’s whereabouts to assist them in effectuating the arrest. 11 Upon searching the dumpster, the police found that it had been emptied. However, a team of divers was able to recover the weapon and ammunition from the river. The murder weapon, a .22 caliber gun, was admitted in evidence at trial as State’s Exhibit 11, and the box of ammuni ⁵²⁷ tion found with it in the river was admitted as State’s Exhibit 12.

The police did not coerce Jona Miles in any way, nor did they offer her any leniency in order to induce her statement or compel her to lead them to evidence. Based on our review of the excerpts of Jona Miles’s statement contained in the record, 12 the police never confronted Jona Miles with the fact that they possessed a tape of the cellular phone conversation between her husband and her. The evidence obtained as a result of Jona Miles’s voluntary conduct need not be suppressed even though the unlawful police conduct in listening to the tape of the cellular phone conversation “was one step in a series of events” leading up to Jona Miles’s statement and production of evidence. Hooton, 662 F.2d at 632 (citing United States v. Leonardi, 623 F.2d 746, 752 (2nd Cir.1980), cert. denied, 447 U.S. 928 , 100 S.Ct. 3027 , 65 L.Ed.2d 1123 (1980 )).

Any taint emanating from the original unlawful disclosure of Jona Miles’s voice to the police in the taped cellular phone conversation in violation of the Maryland Wiretapping Act dissipates at the point where she took the Maryland State Police on a guided tour of the locations where she had disposed of evidence. We also must consider the temporal relationship of Jona Miles’s assistance to the police to the unlawful disclosure of the cellular phone conversation under the Maryland Wiretapping Act. The first factor of the Brown v. Illinois test of attenuation examines the proximity between the time of the initial illegality and the ascertainment of the evidence that a defendant is seeking to suppress. See Brown, 422 U.S. at 603-604 , 95 S.Ct. at 2261-2262 , 45 L.Ed.2d at 427 .

The Supreme Court has not set forth “any mathematically precise test for determining at what point the taint has been purged by the lapse of time.” Ferguson, 301 Md. at 550 , 483 A.2d at 1259 . Intervening factors or acts following the original unlaw ⁵²⁸ ful conduct, however, should be considered in assessing attenuation. See Brown, 422 U.S. at 603-604 , 95 S.Ct. at 2261-2262 , 45 L.Ed.2d at 427 . In Brown , the defendant’s confession was suppressed based in part on the fact that the confession took place less than two hours after the “primary illegality” of defendant’s unlawful arrest, with no intervening circumstances.

See id. at 604-05 , 95 S.Ct. at 2262 , 45 L.Ed.2d at 428 . The original illegality complained of in the instant case took place on April 15, 1997, when James Towers tape recorded the cellular phone conversation between Jona and Jody Miles and turned it over to the police. Both Jona and Jody Miles were not arrested until seven days later. In the interim, and without knowledge that her conversation with appellant had been recorded by a private citizen, Jona Miles disposed of the clothing that appellant purchased with the victim’s credit card at Structure in a dumpster off of Route 404 near Denton, Maryland, and threw the .22 caliber gun, holster, and ammunition into the Choptank River.

Jona Miles engaged in two volitional acts with regard to this evidence, first in throwing them away and second in leading the police to the locations wherein she had disposed of them. In both instances, Jona Miles’s conduct weighs of equal significance, as she made conscious choices on both occasions to do what she did. Because Jona Miles disposed of the evidence subsequent to the cellular phone conversation and not only disclosed the location of the gun in her statement to the police, but physically took the police to the Choptank River, her conduct with regard to the gun and its accessories was completely free and independent from the information the police may have learned from the taped cellular phone conversation. The dissent concludes that Jona Miles’s statement and assistance to the police was as a result of being confronted with evidence obtained by the police from the illegally intercepted phone conversation.

The record, however, does not reflect any disclosure by the police of the fact that they possessed the taped cellular phone conversation. Furthermore, the excerpts in the record of the taped phone conversation contain no references ⁵²⁹ to the Structure store at the Dover Mall, the murder weapon or the Choptank River, all of which were facts that came to be known to the police through their independent investigation. Therefore, there was no abuse of discretion by the trial judge in admitting the murder weapon and its accessories to which Jona Miles led the police, as Jona Miles’s voluntary actions purged the taint from the original unlawful disclosure of the taped cellular phone conversation by the police to obtain the initial search warrant under Section 10-405 of the Maryland Wiretapping Act. We now consider the admission in evidence at trial of appellant’s black jeans and tan dress pants.

Following her arrest, Jona Miles signed a Caroline County Sheriff’s Department consent to search and seize form authorizing the police to conduct a second search of her trailer. During this second search, Corporal Lee Ann Fisher of the Maryland State Police found and seized one pair of black men’s jeans in the rear bathroom clothes hamper and one pair of tan dress pants from Structure on the front porch. These items were admitted jointly at trial as State’s Exhibit 21. Appellant argues that the two pairs of pants should have been suppressed at trial as derivative evidence stemming from the Maryland State Police’s unauthorized use of the taped cellular phone conversation.

We disagree. An individual may voluntarily waive his or her Fourth Amendment rights, through “an intervening act free of police exploitation of the primary illegality” which is “sufficiently distinguishable from the primary illegality to purge the evidence of the primary taint.” See Carson, 793 F.2d at 1147-48 . The intervening factor of an individual’s voluntariness under Fourth Amendment analysis applies equally to purging the taint associated with the taped cellular phone conversation in the case at bar. Jona Miles’s voluntariness must be considered in light of the totality of the circumstances.

See Gamble v. State, 318 Md. 120, 125 , 567 A.2d 95, 98 (1989)(citing Schneckloth v. Bustamonte, 412 U.S. 218, 227 , 93 S.Ct. 2041, 2048 , 36 L.Ed.2d 854, 863 (1973)). ⁵³⁰ At the time Jona Miles signed the consent to search and seize form, she knew that she could be charged with criminal conduct for concealing and destroying evidence on behalf of her husband. However, she chose to assist the police, without any promise of leniency, in the investigation. Furthermore, a person in custody may still give valid consent to a search. See Doering v. State, 313 Md. 384, 402 , 545 A.2d 1281, 1290 (1988)(citing United States v. Watson, 423 U.S. 411, 424 , 96 S.Ct 820, 828 , 46 L.Ed.2d 598, 609 (1976)).

Thus, the fact that Jona Miles was under arrest at the time she gave her statement to police and signed the consent to search form does not negate the voluntary nature of her actions. Considering the totality of the circumstances, Jona Miles waived her Fifth and Fourth Amendment rights and purged the taint of the original illegality of the taped cellular phone conversation by volunteering information to the police and signing a consent form authorizing the police to return to her trailer and conduct further investigation and seizure of evidence. Thus, the trial judge did not err in allowing the admissibility in evidence of the black jeans and tan Structure dress pants. We now consider appellant’s arrest and statement to police.

Appellant argues that the trial judge erred in admitting in evidence at trial his post-arrest confession, maps he drew of areas where he disposed of evidence and property belonging to the victim, and his cellular telephone, which had been seized pursuant to a post-arrest police inventory of the gray 1984 Chevrolet Cavalier appellant had been driving at the time of his arrest. In the days following Edward Atkinson’s murder, the Maryland State Police and Atkinson’s family and friends gathered evidence about the murderer and his whereabouts. By April 4, 1997, the victim’s brother, Wayne Atkinson, had provided the police with information concerning all of the victim’s credit card accounts, and had determined that the credit card had been used at the Tru Blu gas station in Harrington, Delaware after his brother’s disappearance. Wayne Atkinson went to the Tru Blu and questioned one of the employees who gave ⁵³¹ him a description of the card user and the card user’s car.

The physical description matched that of appellant. On April 4, 1997, following the discovery of Edward Atkinson’s body, Wayne Atkinson, his friend, Sean Mooney, and Sergeant Bruce Dana and Corporal Cynthia Dougherty of the Maryland State Police all witnessed a gray Chevy Cavalier with Delaware temporary tags, driven by a white male with short dark hair in his twenties talking on a “bag style” cellular telephone in the area of the crime scene. Subsequent investigation confirmed the information learned by the police in the first few days of the investigation. The Atkinson family turned over all credit card information to the police, who conducted investigations into the purchases made with the victim’s credit cards.

Those investigations included interrogation of the manager and several employees of the Tru Blu, the manager of Structure at the Dover Mall who sold clothing to appellant, the clerk at J.C. Penney’s in the Dover Mall who sold appellant a diamond ring, and a waitress and patrons at Shucker’s Pier 13 Restaurant in Dover where appellant purchased food with the victim’s credit card. All of the merchants provided the police with copies of the receipts from the purchases made by appellant, as well as matching physical descriptions of the appellant. Based on this information, and on detailed assistance from one of the patrons from Shucker’s, the police produced a composite sketch of appellant that was circulated by the local media. All of this information was known to the police before James Towers taped the cellular phone conversation between Joña and Jody Miles.

Once appellant had been arrested and brought to the Caroline County Sheriffs Department, Corporal William V. Benton of the Maryland State Police interviewed him. Before questioning commenced, Corporal Benton presented appellant with the Maryland State Police Advice of Miranda Rights Form. The Miranda warnings were read to appellant and he acknowledged that he understood his rights prior to signing and dating the form. Corporal Benton asked appellant general questions for a few minutes, and then asked him if he knew ⁵³² Edward Atkinson.

When appellant denied knowing Atkinson, the following dialogue took place: Benton: Jody, would it surprise you if I told you there was a picture of you at the Wal-Mart in Cambridge? WalMart has a camera system inside. There’s an ATM inside. We’ve got a guy that was killed on April the 2nd, 1997.

His name was Edward Atkinson. Okay? His brother was riding on that road on, I believe, it was April the 4th and saw a little silver car with Delaware temporary tags with a white male, with brown hair and talking on a cell phone riding on Old Bradley Road. He tried to get the police to stop that car at that time.

For some reason, they were taking down the crime scene and they did not. We have reason to believe that was your car that was on Old Bradley Road on that particular day. Okay, it’s the 3rd or 4th of April. And to get back to my point, Wal-Mart in Cambridge has a camera and they have an ATM in the Wal-Mart.

Our victim’s credit cards were attempted on April the 2nd, 6:59 and 7:00. And the photo we have at the Wal Mart looks an awful lot like you. Miles: I don’t believe that. Benton: Well, whether you believe it or not, it’s the truth.

Also, at J.C. Penne/s store in Dover, the jewelry section. There was a ring purchased with our victim’s credit card. There’s a photo there that looks an awful lot like you. There’s bubbles everywhere in that ceiling and they have a ton of cameras.

Coming in you kept your back to it a little bit, but you couldn’t keep it all the way to it. You walked up to the — when you’re walking down the aisle. It shows a perfect photo. The Harrington Tru Blu, you had a pair of whitish colored slacks, black cowboy boots, and white shirt that’s buttoned up.

They’ve seen you in there. They’ve seen you in there using the victim’s credit card. Miles: I have a white shirt— Benton: I’m not done. The Structure store in Dover Mall.

There’s a ton of Structure clothing that was purchased with our victim’s credit card. The description they give ⁵³³ fits that of you. I’m not here to bull crap you around, I’m being honest with you. We’ve done a search warrant on your house today.

We’ve recovered Structure pants, Structure jeans, Structure shirt that was hidden in Larry’s closet. Okay? Miles: You’re going to find Structure clothes in— Benton: I’m not going to find this brand new Structure shirt that was hid in Larry’s closet. We’ve recovered a gun from right down here in the river, a little 22 with a long barrel on it.

Okay? We’ve recovered clothes from a dumpster right down on 404. 13 So, we’re not in here playing games. You’re a smart person; I’m a smart person. But, I’m here to tell you there’s a reason why everything happens.

Okay? What I’m here to ask you is for you to tell us why things happen. I know you killed Edward Joseph Atkinson. Okay, I’m not going to sit here and play dumb with you and let you play dumb with me.

We’re adult men, it’s time to find out why. I’m not interested in sending you to prison for the rest of your life but I want to know why you killed this man. He’s a pillar in the community, he was active with Community Players and now he’s dead. Jody, I don’t think you’re a bad person.

Yeah, you’ve been arrested. I know that and you know that. But things happen for a reason. Was somebody pushing you to kill this man?

Shortly thereafter, appellant gave the following account of the events of April 2,1997: Miles: I don’t know what the deal was. It don’t necessary have to be money, it could be drugs, it could be a lot of things. I don’t know. I don’t know that part of it.

I just know that I was supposed to meet the man. You know, like you said. There was no struggle. ⁵³⁴ Benton: Okay. Miles: The man showed up and there he was.

When I was asking him for the stuff, all I said was, you know, I need the package. That’s all he told me. And then he tried to tell me he didn’t have it, he didn’t have none of it and anything like this and when he went to reach in his jacket, I was standing right behind him. And he went to reach in his jacket, I didn’t know what he was getting.

Benton: So, what did you do? Miles: That’s when it happened. Benton: That’s when what happened? Miles: That’s when he got shot.

Benton: So, you shot him? Miles: Yeah. Appellant subsequently admitted to attempting to use the victim’s credit cards at the ATM in Wal Mart, to purchase gas at the Tru Blu, clothing at Structure in the Dover Mall, a diamond ring for Jona Miles at J.C. Penney’s in the Dover Mall, and food at Shucker’s Pier 13 Restaurant in Dover, Delaware. After he finished his statement, appellant volunteered to draw maps for the police of the location where he stated he had thrown away the victim’s wallets and briefcases.

Appellant demonstrated a willingness to provide information and to locate physical evidence related to the crime through his voluntary statement to the police. See Ceccolini, 435 U.S. at 276-77 , 98 S.Ct. at 1060 , 55 L.Ed.2d at 277 . He received his Miranda warnings in both written and oral form prior to signing a statement waiving his Fifth Amendment rights, and confirmed in his taped confession that he understood his rights and agreed to give a statement to the police. The police never showed any of the illegally-seized evidence gathered prior to Jona Miles’s arrest in questioning appellant.

See United States v. McKinnon, 92 F.3d at 248 . He confessed to the murder of Edward Atkinson shortly after the interview commenced. Appellant could have stopped the questioning at any point during the interview, but he went so far as to draw ⁵³⁵ maps for the police of the locations of evidence related to the murder. With regard to the second-prong of the Ceccolini Brown test, the police never mentioned the intercepted cellular phone conversation to induce appellant’s statement.

The police never disclosed in questioning appellant the contents of the cellular phone conversation, nor the fact that Jona Miles had given them a statement. The dissent excerpts a portion of the interrogation where Corporal Benton informed appellant that the police had seized a new Structure shirt and other clothing purchased at the Structure store with the victim’s credit cards. While the police had, in fact, seized this evidence, they did not show it to appellant just as the police officer in Ceccolini did not show the florist clerk the envelope with money and gambling slips and never made any reference to its contents. Although the seizure of the shirt itself had been accomplished through executing the search warrant based in part on the information contained in the taped cellular phone conversation, the police already possessed copies of receipts from appellant’s purchases from their investigation at the Structure store.

One of the Structure receipts, entered in evidence at trial as State’s Exhibit 16-C, lists all of the items purchased by appellant with the victim’s credit card, including a shirt. The dissent asserts that our analysis “seems to flirt with either independent source or inevitable discovery analysis.” Diss. Op. at 576, n. 2. The independent source doctrine has been applied in case law generally to refer to all evidence acquired in a lawful fashion, untainted by any illegal evidence-gathering activity of the state.

See Segura v. United States, 468 U.S. 796, 818-14 , 104 S.Ct. 3380, 3390 , 82 L.Ed.2d 599, 614 (1984). This refers to evidence which is different from the evidence originally obtained by unlawful means. Id. The doctrine’s original application in Silverthorne Lumber Co. v. United States, 251 U.S. 385 , 40 S.Ct. 182 , 64 L.Ed. 319 (1920), however, referred to situations where the evidence acquired through untainted means is identical to that which had been obtained through unlawful evidence gathering.

See id. at 391- ⁵³⁶ 92, 40 S.Ct. at 182-83 , 64 L.Ed. at 321 . Therein Justice Holmes explained: The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all. Of course this does not mean that the facts thus obtained become sacred and inaccessible. If knowledge of them is gained from an independent source they may be proved like any others ...

Id. at 392 , 40 S.Ct. at 183 , 64 L.Ed. at 321 . Thus, the independent source doctrine, similar in effect to the attenuation doctrine, seeks to balance the need to deter unlawful conduct of law enforcement with the public interest in justice by “putting police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred.” Nix v. Williams, 467 U.S. at 443 , 104 S.Ct. at 2509 , 81 L.Ed.2d at 387 (emphasis in original). This is accomplished “by allowing the introduction of evidence discovered initially during an unlawful search if the evidence is discovered later through a source that is untainted by the initial illegality.” United States v. May, 214 F.3d 900, 906 (7th Cir.2000). In the case before us, we are not concerned with after-acquired untainted evidence which would inspire invocation of the independent source doctrine.

Instead, we find it significant that the facts used by the police in questioning appellant were all facts learned by the police through lawful investigative means prior to receiving the tape of the cellular phone conversation from Mr. Towers. The focus of the inquiry concerning the extent of the taint running from the unlawfully intercepted cellular phone conversation should rest with the use which was made of it as opposed to a wide-sweeping prohibition concerning the facts articulated therein. See United States v. Grosenheider, 200 F.3d 321, 329-30 (5th Cir.2000)(explaining that the fact that the investigator had effectively seized defendant’s harddrive by maintaining possession of a computer containing evidence of the defendant’s use of child pornography while a warrant for a search of the hard-drive was being obtained did not require exclusion of ⁵³⁷ evidence obtained pursuant to a validly authorized and executed search warrant because the investigator did not make any use of the computer prior to obtaining a warrant for the search). Appellant’s decision to give a statement to the police was voluntary; in fact, it was the product of a volitional act rather than a product of exploitation and manipulation of the unlawful evidence gained from the cellular phone conversation.

See Carson, 793 F.2d at 1147-1148 . The balancing approach to attenuation which has evolved from Brown v. Illinois requires consideration of a totality of the circumstances, including the demeanor of the individual throughout the interrogation, the extent of the individual’s cooperation with the police, and personal circumstances unique to the age, knowledge and experience of the individual. See United States v. Wellins, 654 F.2d 550, 555 (9th Cir.1981). At the time appellant waived his Miranda rights and gave his confession, he was not under the influence of drugs or alcohol.

This was not a situation involving a “caged rabbit” who manifested fear and anxiety over his predicament. On the contrary, throughout his confession, appellant remained relaxed and cooperative and never indicated that he wished to stop talking or take a break. The Supreme Court has recognized that, “In view of the deterrent purposes of the exclusionary rule, consideration of official motives may play some part in determining whether application of the exclusionary rule is appropriate after a statutory or constitutional violation has been established.” Scott v. United States, 436 U.S. 128, 135-136 , 98 S.Ct. 1717, 1722-1723 , 56 L.Ed.2d 168, 176-77 (1978)(interpreting the federal wiretapping statute)(emphasis in original). This concept is embodied in the third factor of the Brown v. Illinois test, which requires an examination of the flagrancy of the police misconduct in obtaining evidence from Joña and Jody Miles.

See Brown, 422 U.S. at 604 , 95 S.Ct. at 2262 , 45 L.Ed.2d at 427 ; United States v. Rodriguez, 585 F.2d 1234, 1242 (5th Cir.1978)(applying Brown and Ceccolini in holding that the lower court did not err in denying defendant’s motion to suppress where the record indicated that defendant know ⁵³⁸ ingly and voluntarily waived his Miranda rights and gave a confession and “the government’s conduct was not flagrant or reprehensible”). The Maryland State Police never authorized or requested that James Towers record appellant’s cellular phone conversation, nor did the police assist Mr. Towers in the interception. 14 The dissent’s analysis of attenuation verges on a traditional tort analysis of proximate cause which while tempting, is inappropriate to an assessment of attenuation of the taint of unlawful police conduct under Fourth and Fifth Amendment jurisprudence. See Ceccolini, 435 U.S. at 276 , 98 S.Ct. at 1060 , 55 L.Ed.2d at 277 . Although Section 10-405 mandates the exclusion of the tape and its contents from evidence, it would completely contravene the statutory goal to apply a per se exclusion to all evidence obtained thereafter as a result of pursuing an investigation and from the voluntary conduct of witnesses or suspects who provide additional evidence.

See United States v. Salgado, 807 F.2d 603, 607 (7th Cir.1986)(“The exclusionary rule is a sanction, and sanctions are supposed to be proportioned to the wrongdoing that they punish.”). Here, the police did exactly what anyone would have expected them to do. The conduct of the Maryland State Police in listening to the tape of the cellular phone conversation provided to them by James Towers is completely distinguishable from the flagrant and purposeful misconduct of the police officers in Brown who arrested someone for the sole purpose of engaging in a factual fishing expedition to link that person to an ongoing murder investigation. See Brownn, 422 U.S. at 592 , 95 S.Ct. at 2256 , 45 ⁵³⁹ L.Ed.2d at 420 .

It cannot be said that James Towers, the private citizen who intercepted appellant’s cellular phone conversation, “acted as an instrument or agent of the state.” State v. Abdouch, 230 Neb. 929 , 434 N.W.2d 317, 323 (1989) (quoting Coolidge v. New Hampshire, 403 U.S. 443, 487 , 91 S.Ct. 2022, 2049 , 29 L.Ed.2d 564, 595 (1971)). “The [exclusionary] rule is calculated to prevent, not to repair. Its purpose is to deter — to compel respect for the constitutional guaranty in the only effectively available way-by removing the incentive to disregard it.” Elkins, 364 U.S. at 217 , 80 S.Ct. at 1444 , 4 L.Ed.2d at 1677 . At the hearing on appellant’s pretrial motion to suppress, the trial court aptly stated, “the horrifying thing about the whole situation, really, is that if the police had done nothing, having this information, I cannot imagine what would have been thought by the public.” The information contained in the cellular phone conversation led the police to believe that appellant and his wife were conspiring to get rid of the evidence. To construe the Wiretapping Act to require us to hold under the unique facts and circumstances of this case that the police should have refrained from listening to the tape provided by Mr. Towers and sat idly by while appellant and his wife eliminated evidence of the crime would produce a result which is “unreasonable, illogical, inconsistent with common sense, and absurd.” Edgewater Liquors, Inc. v. Liston, 349 Md. 803, 811 , 709 A.2d 1301, 1304 (1998).

While “the Brown test does not require that each of the factors set forth be resolved in favor of the Government” in order to render evidence admissible under the attenuation doctrine, we find that considering the totality of the facts and circumstances of this case, the balance falls in favor of the State. See United States v. Wellins, 654 F.2d at 554 . We therefore conclude that the trial judge properly drew the line between the taint of the original illegality of the unlawfully intercepted cellular phone conversation by a private citizen and found attenuation from the taint commencing with Jona Miles’s voluntary statement and assistance to the police, and appellant’s voluntary confession to the murder of Edward Atkinson. ⁵⁴⁰ IV. RULE 4-326 At approximately 4:00 p.m. on March 18, 1998, the jury began deliberations in the sentencing phase of the trial.

During the course of the deliberations, the jury sent out three notes. The clerk received the first note at 4:25 p.m. and the second note at 7:48 p.m., requesting beverages and inquiring as to dinner arrangements. The third note, received at 11:20 p.m., contained the following question: Section V Para. 2 If we are not unanimous, do we enter no automatically or do we need to be unanimous that no is the answer. Section VI How can we answer this question if we were not unanimous on the no vote. 15 The trial court informed counsel of receipt of the note and summarized the contents of the note for counsel: [T]he thrust of the communication is that the jury is uncertain as to whether they must be unanimous with respect to part 5 — or Section V, paragraph 2, which is the one very clearly — because they do have to be unanimous — I don’t know what they’re talking about in Part 2 but be that as it may.

All right. I think that what we should do is to read them again the instructions with respect to parts — or to Sections V and VI, that seems, to me, [to] make good sense. I see no reason to backtrack and go over things. I think that we ⁵⁴¹ can safely assume — I think we should assume that they have winded their way through I through IV in some fashion that is consistent with the instruction.

And where they are hung up is their desire to be clarified on whether or not they must reach a conclusion on No. 5. All right. Neither the State nor defense counsel read the note or requested to inspect the note at that time. After healing no objections to his proposed re-instruction of the jury, the trial court reviewed the instructions for Sections V and VI, and advised the jury “your determination in Section V must be unanimous.

Until all 12 of you agree on whether the answer is yes or no, do not go to Section VI.” The jury returned to finish deliberations, and returned a sentence of death at approximately 1:42 a.m. on March 19,1998. Appellant filed a Motion for New Sentencing And / Or Imposition of a Life Sentence In Lieu of Death Sentence on March 26, 1998 postulating that Maryland Rule 4-326(c) requires the trial judge to repeat verbatim the contents of the jury note for the record. The failure to do so, according to appellant, deprived him of the ability to propose the following: 1) Declare a mistrial based on jury deadlock after reasonable deliberation; 2) Request that the jury be instructed to move on to Section VI to determine whether a sentence of life with or without parole should be imposed; or 3) Request a modified Allen Charge, as approved by Booth v. State, 327 Md. 142, 159 , 608 A.2d 162, 170 (1992), cert. denied, 506 U.S. 988 , 113 S.Ct. 500 , 121 L.Ed.2d 437 (1992), to reflect that the jurors were unable to agree on Section V. On July 7, 2000, the trial court denied the motion in a written order that stated, “Beyond any doubt, the Court did not follow the plain direction of Rule 4-316(c), as explicated in Allen v. State, 77 Md.App. 537 , 551 A.2d 156 in that one of the communications was not read verbatim into the record.” (emphasis in the original). 16 In denying the motion, the trial court concluded that the summary provided on the record by the trial court did not differ ⁵⁴² from the substance of the note such that “the oversight was purely technical in nature.” The relevant provision, Maryland Rule 4-326(c)(2000 Supp.) provides: The court shall notify the defendant and the State’s Attorney of the receipt of any communication from the jury pertaining to the action before responding to the communication. All such communications between the court and the jury shall be on the record in open court or shall be in writing and filed in the action.

Appellant argues that Rule 4 — 326(c) requires complete, verbatim communication to counsel of the contents of any communication between the jury and the court. The State contends that defense counsel’s failure to request to inspect the jury note prior to the trial judge’s re-instruction of the jury bars consideration of this issue on appeal. In the alternative, the State asserts that the trial judge’s failure to disclose the contents of the jury note in its entirety is harmless beyond a reasonable doubt. With respect to preservation of the issue, it is clear that Maryland Rule 8-131 governs the scope of review available in this Court. 17 Review is typically limited to questions raised in and decided by the lower court.

See Young v. State, 220 Md. 95, 99 , 151 A.2d 140, 143 (1959), cert. denied 363 U.S. 853 , 80 S.Ct. 1634 , 4 L.Ed.2d 1735 (1960). We have exercised our discretion in some cases including some death penalty cases, to determine all questions briefed and argued by the appellant before this Court even when not tried and decided by the lower court. See Bartholomey v. State, 260 Md. 504, 513 , 273 A.2d 164, 169 (1971), modified, 408 U.S. 938 , 92 S.Ct. 2870 , 33 L.Ed.2d 759 (1972), reh’g denied, 409 U.S. 901 , 93 S.Ct. 180 , 34 L.Ed.2d 162 (1972). Although defense counsel did not object ⁵⁴³ to the summarization of the jury note at the time the note was received, the issue of the trial judge’s failure to comply with Rule 4-326(c) was raised by counsel and decided by the trial court as part of appellant’s post-trial motion and was briefed and argued in this Court.

With respect to the reading of a communication to the jury, this Court recently stated: The rules governing communications between the judge and the jury are basic and relatively simple to adhere to in practice. If a judge receives a communication from the jury or wishes to communicate with the jury, he or she is required to notify the parties. See Md. Rule 4-326(c). The communication with the jury shall be made in open court on the record or shall be made in writing and the writing shall become part of the record.

See Md. Rule 4-326(e). Putting aside certain exceptions not relevant here, the defendant has a recognized right to be present during communications between the judge and the jury during his trial. See Md. Rule 4-231 (b); Stewart v. State, 334 Md. 213, 224-25 , 638 A.2d 754, 759 (1994); Williams v. State, 292 Md. 201, 211 , 438 A.2d 1301, 1306 (1981)(“a criminal defendant’s right to be present at every stage of his trial is a common law right [and] is to some extent protected by the Fourteenth Amendment to the United States Constitution”). These rules are not abstract guides.

They are mandatory and must be strictly followed. See Taylor v. State, 352 Md. 338, 344 , 722 A.2d 65, 68 (1998); Stewart, 334 Md. at 222 , 638 A.2d at 758 . Winder v. State, 362 Md. 275, 322 , 765 A.2d 97, 122-23 (2001). Here the trial court did not give “full” notification of the contents of the note, because the trial court did not read the note verbatim but merely provided a summary of its contents prior to his discussion with counsel.

Reading of the jury note in open court is not the only method of complying with Maryland Rule 4-326(c), as the rule may also be satisfied by filing written communications from the jury to the court in the case file for the action. The filing of the written communication with the action allows the parties to inspect the commu ⁵⁴⁴ nication for themselves if they so desire. A failure to provide an opportunity for inspection in order to develop an appropriate response may provide the basis for an error. See Smith v. State, 66 Md.App. 603, 624 , 505 A.2d 564, 574 , cert. denied, 306 Md. 371 , 509 A.2d 134 (1986).

In Allen v. State, 77 Md.App. 537 , 551 A.2d 156 (1989), cert. denied, 320 Md. 15 , 575 A.2d 742 (1990), the Court of Special Appeals held that a trial judge must read the contents of any jury communication to the State and defense counsel before allowing the defendant to accept a majority verdict in a situation where the reading of the communication in its entirety would have resulted in his not accepting a majority verdict. See Allen, at 546, 551 A.2d at 160 . In the present case, the trial judge’s failure to read the note, although not a violation per se of Rule 4-326(c), should be reviewed in determining whether the judge’s summarization prejudiced the defendant. The circumstances surrounding the re-instruction of the jury indicate that appellant was not prejudiced by the trial court’s actions.

Appellant was present when the trial court re-instructed the jury regarding Sections V and VI of the sentencing form in compliance with Md. Rule 4-231. See Midgett v. State, 216 Md. 26, 36 , 139 A.2d 209, 214 (1958)(explaining that in Maryland “there can be no valid trial or judgment” unless the defendant has been afforded the right to be present at all stages of the proceedings, including when being re-instructed by the trial court). However, we have stated that, “[w]here the right of confrontation is not implicated, and where there is involved no other right requiring intelligent and knowing action by the defendant himself for an effective waiver, a defendant will ordinarily be bound by the action or inaction of his attorney.” Williams, 292 Md. at 219 , 438 A.2d at 1310 . In the matter now before this Court, neither party objected to the contents of the re-instruction of the jury either prior to re-instruction or prior to the jury rendering its sentencing verdict.

Although appellant asserts that defense counsel would have responded differently had counsel been made aware of the actual contents of the jury note rather than the trial judge’s ⁵⁴⁵ summary, there is nothing on the face of the note which indicates that the jury was deadlocked or otherwise incapable of reaching a decision. Furthermore, the trial court’s response to the note indicates that the trial judge did not perceive any jury deadlock which would have warranted a mistrial, that the jurors had deliberated for an unreasonable amount of time, or that the jurors were unable to reach a unanimous decision with regard to Section V. Thus, appellant received the same response from the trial court as he would have received even if he had requested to review the contents of the jury note and presented his motion. Therefore, the appellant was not prejudiced by the failure of the trial court to read the note to counsel prior to re-instruction of the jury. V. JURY INSTRUCTIONS ON UNANIMITY In both the original sentencing instructions and the re-instruction by the trial judge after receipt of the jury note at 11:20 p.m., the trial court informed the jury “your determination in Section V must be unanimous.

Until all 12 of you agree on whether the answer is yes or no, do not go to Section VI.” Although the parties approved the sentencing form prior to the trial judge’s instruction of the jury, appellant now takes exception to the language requiring unanimity. Appellant argues that if a jury has deliberated for a significant period of time and requests guidance on how to proceed if the jury is not unanimous, the trial court should be required to instruct the jury that it may simply report its lack of unanimity to the court on the sentencing form. In sentencing proceedings for criminal acts where the State seeks imposition of the death penalty, “[t]he determination of the court or jury shall be in writing, and, if a jury, shall be unanimous and shall be signed by the foreman.” Maryland Code, Art. 27, § 413(i)(1957, 1996 Repl.Vol., 2000 Supp.). Section 413(k)(2) further provides, “[i]f the jury, within a reasonable time, is not able to agree as to whether a sentence of death shall be imposed, the court may not impose a sentence of death.” ⁵⁴⁶ Determination of the reasonableness of the length of deliberations rests in the sound discretion of the trial court.

See Booth, 327 Md. at 154 , 608 A.2d at 167 . Thus, “[t]he Maryland trial judge presiding over a capital sentencing proceeding before a jury basically retains the traditional role of determining whether the jury is hung.” Id. The trial court may consider the nature of the decision before the jury, and the length of the trial in determining whether the jury has exceeded a reasonable time for deliberations. See Colvin-el v. State, 332 Md. 144, 181-82 , 630 A.2d 725, 744 (1993), cert. denied, 512 U.S. 1227 , 114 S.Ct. 2725 , 129 L.Ed.2d 849 (1994)(finding no error in the trial court’s refusal to dismiss the jury and enter a sentence of life imprisonment after the jury sent note to the court requesting clarification on the need for unanimity on Sections IV and V of the verdict sheet following eleven and a half hours of deliberations over a two-day period).

The jury in the instant case had deliberated approximately seven hours before submitting the note in question to the court at 11:20 p.m. Appellant asserts that instructing the jury in the midst of deliberations concerning the consequences of a jury’s failure to render a unanimous decision does not present the same dangers as providing a similar instruction prior to deliberation where the court may fear that a juror might refrain from making a decision for a little more than a reasonable amount of time so as to prevent imposition of the death penalty, or in the converse, the jury may act hastily in deliberations without giving due consideration to the evidence in rushing towards a death sentence. In Calhoun v. State, 297 Md. 563 , 468 A.2d 45 (1983), cert. denied, 466 U.S. 993 , 104 S.Ct. 2374 , 80 L.Ed.2d 846 (1984), we stated: Giving the instruction to the jury before deliberation could prompt someone to hold out for just a bit more than a reasonable time to insure that the death penalty was not imposed. It likewise could cause a jury to rush through its deliberations to avoid being called back by the court and told that because a reasonable time had passed without a verdict the sentence would be life imprisonment. ⁵⁴⁷ Calhoun, 297 Md. at 595 , 468 A.2d at 60 ; see also Ware v. State, 348 Md. 19, 58 , 702 A.2d 699, 718 (1997), aff'd after remand, 360 Md. 650 , 759 A.2d 764 (2000), cert. denied, 531 U.S. 1115 , 121 S.Ct. 864 , 148 L.Ed.2d 776 (2001); Bruce v. State, 328 Md. 594, 622 , 616 A.2d 392, 406 (1992), cert. denied, 508 U.S. 963 , 113 S.Ct. 2936 , 124 L.Ed.2d 686 (1993); Oken v. State, 327 Md. 628, 642-643 , 612 A.2d 258, 265 (1992), cert. denied, 507 U.S. 931 , 113 S.Ct. 1312 , 122 L.Ed.2d 700 (1993); Grandison v. State, 305 Md. 685, 771 , 506 A.2d 580, 623 (1986), cert. denied, 479 U.S. 873 , 107 S.Ct. 38 , 93 L.Ed.2d 174 (1986).

The United States Supreme Court has declined to mandate that an instruction on the consequences of jury deadlock routinely be given in all capital cases, explaining, “the Eighth Amendment does not require that the jurors be instructed as to the consequences of their failure to agree.” Jones v. United States, 527 U.S. 373, 381 , 119 S.Ct. 2090, 2098 , 144 L.Ed.2d 370, 382 , reh’g denied, 527 U.S. 1058 , 120 S.Ct. 22 , 144 L.Ed.2d 826 (1999). Unless and until the jury makes an unambiguous declaration that it is unable to come to a unanimous decision, the same dangers of undue jury influence as expressed in Calhoun and its progeny remain. The record indicates that the trial judge did not find a clear statement of deadlock from the jury; thus the situation did not warrant mid-deliberation instruction on the failure of unanimity. The jury presented the trial judge in the instant case with a note concerning the application of Sections V and VI of the sentencing form.

The judge’s discussion with counsel on the record following receipt of the jury note and his subsequent re-instruction of the jury shows that the judge perceived that the jury was seeking clarification, not that he perceived a jury deadlock. Where the trial judge has exercised discretion and found that the jury has not exceeded a reasonable amount of time in deliberations nor an inability to reach a unanimous decision, the court is not required to provide an instruction to the jury concerning imposition of a life sentence in lieu of death. After re-instruction, the jury returned to deliberate for approximately two hours before rendering a verdict. The jury ⁵⁴⁸ unanimously found that the State had proven that the aggravating circumstances outweighed the mitigating circumstances, and unanimously determined the sentence to be death.

Accordingly, we find no error in the trial court’s failure upon receiving the 11:20 p.m. jury note to provide an instruction to the jury that it could report its lack of unanimity- VI. CONSIDERATION OF MITIGATING FACTORS UNDER THE SENTENCING FORM AND JURY INSTRUCTIONS: At appellant’s request, the trial judge instructed the jury that, “[a]ny factor which causes you to feel sympathy or mercy toward the defendant may be considered by you to be a mitigating factor, so long as such factors are supported by the evidence and are considered by you to be within the framework of the verdict sheet.” Appellant specifically requested this instruction regarding mitigating factors and raised no objection to the trial judge’s instructions or the sentencing form at trial, but now asserts that the instructions and language of the sentencing form may have improperly restricted the jury’s consideration of mitigating factors to those facts received in evidence. Generally, appellant’s specific request of this instruction combined with a failure to properly object to it during the sentencing proceedings would constitute a waiver of any objection to the instruction. Although this issue was not properly preserved for appeal, appellant briefed and argued this issue in his appeal to this Court, accordingly, we will exercise our discretion to consider the jury’s findings pursuant to Article 27, § 414(e) of the Maryland Code, which provides: Considerations by Court of Appeals. — In addition to the consideration of any errors properly before the Court on appeal, the Court of Appeals shall consider the imposition of the death sentence.

With regard to the sentence, the Court shall determine: ⁵⁴⁹ (1) Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor; (2) Whether the evidence supports the jury’s or court’s finding of a statutory aggravating circumstance under § 413(d); and (3) Whether the evidence supports the jury’s or court’s finding that the aggravating circumstances outweigh the mitigating circumstances. See Tichnell v. State, 287 Md. 695, 728 , 415 A.2d 830, 847 (1980)(explaining that in capital cases, Section 414(e) directs the Court to consider the factors enumerated therein in addition to those otherwise properly raised before the Court on appeal). The sentencing authority, whether it is a judge or jury, must consider the existence of mitigating circumstances in rendering a sentencing verdict. See Tichnell, 287 Md. at 729 , 415 A.2d at 848 .

In so considering, the sentencing authority may take into account any facts or circumstances concerning the defendant including but not limited to the evidence presented at the merits and sentencing phases of trial in deciding whether a death sentence would be appropriate. See Foster v. State, 304 Md. 439, 474-475 , 499 A.2d 1236, 1254 (1985), cert. denied, 478 U.S. 1010 , 106 S.Ct. 3310 , 92 L.Ed.2d 723 (1986). The mitigating circumstances do not have to outweigh the aggravating circumstances in order to avoid imposition of the death penalty. See White v. State, 322 Md. 738, 746-47 , 589 A.2d 969, 973 (1991).

Rather, if the sentencing authority has found mitigating circumstances, the death sentence shall be imposed only if the sentencing authority finds that the aggravating circumstances outweigh the mitigating circumstances. See Code, Art. 27, § 413(h)(1) and (2). Prior to allocution, the trial judge informed the jury that, “the evidentiary portion of this phase is now concluded. Under the law, the Defendant has a right to address you.” ⁵⁵⁰ Appellant then gave the following allocution pursuant to Md. Rule 4-343: I really don’t know how I got myself in this position.

Everyone I know would say that I’m a nice person. I try to help everyone and I never tried to hurt anyone on purpose. In the event that I did get angry, you heard that I would result to walking down the street or walking away from any problems I had. That was one thing I just had a hard time trying not to get angry towards people.

I don’t get enjoyment out of hurting anyone, and anyone can tell you that I try not to do that. I get enjoyment out of making people laugh, smile, and have a good time. If I ever saw a person in need and I could help them, I would definitely try to do that. This is one reason why people don’t see me doing anything like this.

People say and do things that they all regret. I’m sure everybody has. This one is at the top of my very long list. I wish that I could change the things that’s happened but I can’t do that.

You can’t imagine the guilt or sorrow I feel or the pain that the Atkinson must be going through, and I feel just terrible for it but I can’t change anything that’s happened. It’s been said that I had a lot of problems as a child that continued on through my adult life. And at a very early age I resorted to constant drinking and illegal activities to support myself and my alcoholic habits. I would try to hide the truth by lying to policemen, by stealing, or just doing anything illegal to get what I need to support my alcohol habit.

Now, I sit and think with the exception of a very few I try to think of my so-called friends. I never really had so-called friends. I had a lot of drinking buddies or maybe barroom acquaintances but never friends. Alcohol has ruined my life, my kid’s lives, and my relationship with others, and now a large amount of people associated with Mr. Atkinson.

I still can’t believe I’m standing here convicted of murder when I would never hurt anyone inten ⁵⁵¹ tionally. I regret all the mistakes I’ve made, and I know I can’t makeup for them now. I regret the Atkinsons have loss a son, a brother, and a friend. I know from what I heard Mr. Atkinsons he had a lot of friends, his mother.

People could have learned a lot from what he had to offer in the theater and just his friends. I did not know Mr. Atkinson and I’m sure that it is not only my loss but others as well. I have a terrible feeling of guilt about Mr. Atkinson’s death. I was able to see some of the pictures you have viewed as evidence as far as the autopsy and as far as the crime scene went.

I get chills every time I see his picture on TV, in the paper, or just in my mind. I wake up in the middle of the night seeing those same pictures, just with all the regrets I have over everything. I can’t believe that I got myself into any kind of situation like this. I care about people and I care about life itself, and I can’t say how sorry I am for the death of Mr. Atkinson or how sorry I am for his family and for his friends.

I also have regrets with what this has done to my kids and people close to me. People close to me have made comments and they said if they had done things differently in the past with any situation as far as I went that maybe things wouldn’t be this way today. Maybe if my upbringing was a little bit differently then I wouldn’t be in this situation today. I don’t blame anybody entirely.

I blame myself. I take full responsibility for my actions. I can’t sit here — you did hear things about my mother. I couldn’t sit here and blame my mother for anything.

I mean, true, she did things that maybe everybody else thinks is wrong, but there’s other people like yesterday you had my sister testified; she turned out fíne. I can’t blame anyone but I can only myself and my responsibility that I took in this, my drinking problems that I took whenever I constantly did anything I could to drink. I want to make it clear also that I have no anger towards any of you jury members. You did exactly what you were asked to do.

You sat there and listened and weighed the ⁵⁵² evidence like you were told and then you come up with a fair decision. I also wanted it to be known that I have no anger towards Davis Ruark or Sam Vincent, who are only doing the job that they support to uphold. In the decision I know that the Atkinsons are going to seek closure, and in a way I don’t know that they can ever get closure in any decision that’s made. Bill Cosby I have a article that he wrote that said — and the loss of his son, any time you bring — lose somebody you bring into this world there will never be any closure.

I have never really got gotten over the loss of my twins. And regrettably no matter what you decide I’m sure that none of the Atkinsons will ever have complete closure either. For this I am truly sorry. Thank you for your time.

In Harris v. State, 306 Md. 344 , 509 A.2d 120 (1986) we noted that “the allocutory process provides a unique opportunity for the defendant himself to face the sentencing body, without subjecting himself to cross-examination, and to explain in his own words the circumstances of the crime and his feelings regarding his conduct, culpability, and sentencing.” Harris , at 358, 509 A.2d at 127 . The sentencing authority may consider the content of the defendant’s allocution in determining the existence of mitigating factors. See Harris v. State, 312 Md. 225, 254 , 539 A.2d 637, 651 (1988)(finding that the trial court improperly instructed the jury that it was “to decide the case only on.. .evidence”). In the instant case, the trial judge instructed the jury with regard to mitigating circumstances as follows: In Section IV each of you must determine for yourself whether any mitigating circumstances exist in this case.

For the purpose of this sentencing proceeding a mitigating circumstance is anything about the Defendant or about the facts of the case that in fairness or in mercy may make the death sentence an inappropriate penalty for this Defendant. .. This procedure that I have just outlined in broad form is to make certain that each of you gives individual consideration to any mitigating circumstance you personally ⁵⁵³ find. Let me say that again because that’s important — that each of you gives individual consideration to any mitigating circumstances you personally find as well as to any mitigating circumstance that all of you unanimously find. ❖ * * H; Jjs In determining whether any mitigating circumstances exist, consider all the evidence presented