Minehan v. State

SONNER, Judge. In April and May of 1999, the police investigated a rash of armed robberies of commercial establishments in Montgomery County. The result of the investigation was a twenty-count indictment, with various permutations of robbery, conspiracy, assault, and use of a handgun, charging Michael H. Minehan with participating in the robberies as the driver of the getaway car. The indictment resulted in three trials, two of which were jury trials and one of which was a bench trial.

The first jury convicted Minehan of robbery with a deadly weapon, use of a handgun in the commission of a felony, conspiracy to commit robbery with a deadly weapon, and robbery. All of those offenses stemmed from the robbery of a restaurant, Sole D’ltalia, on May 12, 1999. Minehan was acquitted of some of the other charges in the indictment by a second jury, as well as by the circuit court in the first jury trial. Then, the circuit court in the bench trial convicted him of three counts of robbery with a deadly weapon.

The State nol prossed the remaining charges. Consolidating all the guilty verdicts, the circuit court sentenced Minehan to twelve years’ incarceration. On appeal, Minehan asserts that we must reverse all of the convictions because the trial court accepted an unlawful confession. He also argues the court improperly allowed evi ⁴³⁸ dence of his other crimes during the first jury trial.

Next, Minehan challenges the sufficiency of the evidence for the jury’s convictions of robbery with a deadly weapon and use of a handgun. Finally, Minehan alleges that, during the first jury trial, the judge erroneously limited defense counsel’s cross-examination of a key witness. We find no reversible error and affirm the judgments. I. The Confession The suppression hearing is our source for learning what happened before, during, and after Minehan’s confession.

Facon v. State, 144 Md.App. 1, 19 , 796 A.2d 101 , cert. granted, 369 Md. 570 , 801 A.2d 1031 (2002). Moreover, we must view the evidence from that hearing in a light most favorable to the State because it prevailed in the trial court on the motion to suppress. Id. at 20, 796 A.2d 101 . Detective Gene Curtis of the Montgomery County Police Department developed Minehan as a suspect in the robberies in late May 1999.

The biggest tip came from Marcos Colum-ba, who was the man suspected of effectuating the actual holdups. At the same time, the D.C. Metropolitan Police Department was investigating a robbery at Johnson’s Flower Shop, where Minehan worked. Indeed, Minehan was the alleged victim of that crime. Police suspected Columba’s involvement in the florist robbery, and given Columba’s admitted relationship with Minehan, they suspected Minehan knew a great deal more about that robbery than he had expressed.

Accordingly, the police devised a plan to question Minehan about the florist robbery as a gateway to a larger discussion of his involvement in the serial robberies. Minehan was one month shy of twenty-three years of age and did not have a criminal record. As the first step in the plan, police discussed their suspicions with Minehan’s superiors at the flower shop and learned his work schedule. They hoped to confront Minehan before he had an opportunity to speak with other suspects and “think a whole lot” about the investigation.

It also is clear that they wished to interrogate him in a manner that would not be ⁴³⁹ viewed as custodial and trigger Miranda rights. Accordingly, on June 3, 1999, at 8:30 in the morning, three police officers, including Detective Curtis, arrived at the florist, 1 wearing civilian clothes. Detective Curtis testified that he approached Minehan, along with another officer and Minehan’s employer, and asked to speak with him at the police station about the florist robbery. Minehan assented “willingly.” The officers followed him around the shop as he completed his work and walked out with him.

According to Detective Curtis, although Minehan’s car was parked in the florist lot, he assented to the officers’ suggestion that he drive with them to police headquarters in an unmarked police vehicle. Apparently, one of the officers patted him down before he got into the car, which Detective Curtis described as “normal” police procedure. Notwithstanding defense counsel’s prodding at the suppression hearing, Detective Curtis could not remember exactly what the men discussed in the car, although “it was something about the D.C. case.” At police headquarters, the officers escorted Minehan to a room established for interviewing victims and witnesses. They intentionally did not use the room set aside for the interrogation of suspects.

He sat at the head of a long table with the three officers facing him. The taped interview began at 9:19 a.m., was interrupted for twenty minutes for Minehan’s cigarette break, and ended less than two hours later at 11:00 a.m. He began his incriminating remarks about a quarter of the way into the interview. The officers deliberately did not advise Minehan of his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

Following the confession, the officers obtained Minehan’s permission to collect evidence at his home. That effort, however, was unsuccessful, so the officers proceeded to drive ⁴⁴⁰ Minehan to his car at the florist parking lot. He was arrested one week later, on June 10,1999. A. Was Minehan Subject to Custodial Interrogation?

By dictate of Miranda, 384 U.S. at 444 , 86 S.Ct. 1602 , an accused’s statement cannot be used against the accused at trial if it was the product of “custodial interrogation” and the police did not inform the accused of certain habitual warnings before taking a statement. “The constitutional distillate of Miranda is that self-incrimination flowing from a custodial interrogation is, ipso facto, compelled self-incrimination because of the inherent coercion — the inherent compulsion — of the custodial interrogation environment.” Cummings v. State, 27 Md.App. 361, 366 , 341 A.2d 294 (1975); see also Dickerson v. United States, 530 U.S. 428, 433 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000) (discussing the constitutional roots of Miranda). Minehan asserts that his confession was invalid because it was the product of custodial interrogation minus Miranda warnings. Clearly, his interview met the interrogation requirement as the police directed questions to him, with the sole purpose of eliciting incriminating information. See Rhode Island v. Innis, 446 U.S. 291, 301 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980); Drury v. State, 368 Md. 331, 335-36 , 793 A.2d 567 (2002).

The circuit court, however, found that Minehan was not in custody for purposes of Miranda , a finding we uphold after examining several cases and closely reading the transcript of the interrogation. Custody means a formal arrest, or another serious restriction on freedom of movement. See Miranda, 384 U.S. at 477 , 86 S.Ct. 1602 . It is an objective state that is entered when a suspect is “led to believe, as a reasonable person, that he is being deprived or restricted of his freedom of action or movement under pressures of official authority.” Bond v. State, 142 Md.App. 219, 228 , 788 A.2d 705 (2002) (citations ⁴⁴¹ omitted) (holding that defendant was in custody when police questioned him in his bedroom, late at night).

Practically speaking, we must consider: where the interrogation occurred, its length, the number of police officers present, what the officers and the suspect said and did, whether the suspect was physically restrained, whether there was a show of force, ie., weapons drawn or a guard at the door, and whether the suspect was being questioned as a suspect or as a witness. Id. at 229 , 788 A.2d 705 ; see also Whitfield v. State, 287 Md. 124, 141-42 , 411 A.2d 415 (1980) (applying the factors and finding custody). We will also take note of how the suspect came to the place of questioning, as well as whether police let the person leave at the end of the interview or executed an arrest. Id.

What are not factors are the officer’s or the accused’s subjective opinion as to whether there has been custody. Bond, 142 Md.App. at 228 , 788 A.2d 705 ; see also Ashe v. State, 125 Md.App. 537, 551 , 726 A.2d 786 (1999). Preliminarily, we note that Minehan was not in custody during the drive to police headquarters. Accepting the evidence in a light most favorable to the State, as we must, the facts were that Minehan agreed to accompany the officers in their car; he was not restrained, except for having to wear a seatbelt; and the conversation in the car was unremarkable.

These are not the facts of United States v. Ceballos, 812 F.2d 42, 45 (2d Cir.1987), in which law enforcement agents refused a suspect’s request to follow them in a company car to the interrogation site. As the federal court found, the agents’ refusal would have made a reasonable person feel obligated to accompany them. Id. at 48 . Nor is this case like Myers v. State, 3 Md.App. 534, 535-36 , 240 A.2d 288 (1968), in which a police vehicle essentially became an interrogation room, where the suspect was confined and questioned.

As for Minehan’s interview at the police station, we recognize that each case must be judged on its own merits, although certain benchmarks have developed in the thirty-plus years of Miranda litigation. For example, interrogation in a ⁴⁴² police station does not amount to custody per se. See Oregon v. Mathiason, 429 U.S. 492, 495 , 97 S.Ct. 711 , 50 L.Ed.2d 714 (1977); California v. Beheler, 463 U.S. 1121, 1125 , 103 S.Ct. 3517 , 77 L.Ed.2d 1275 (1983); Ashe, 125 Md.App. at 551 , 726 A.2d 786 . As the Supreme Court explained in Mathiason, 429 U.S. at 495 , 97 S.Ct. 711 : Any interview of one suspected of a crime by a police officer will have coercive aspects to it, simply by virtue of the fact that the police officer is part of a law enforcement system which may ultimately cause the suspect to be charged with a crime.

But police officers are not required to administer Miranda warnings to everyone whom they question. Another established rule is that police do not violate Miranda by telling the accused he or she is only a witness, when, in fact, the person is a suspect. Mathiason, 429 U.S. at 495-96 , 97 S.Ct. 711 ; see also Beckwith v. United States, 425 U.S. 341, 347 , 96 S.Ct. 1612 , 48 L.Ed.2d 1 (1976); Cummings, 27 Md.App, at 379-80, 341 A.2d 294 . Police may also exaggerate the evidence they have accumulated against the person being interviewed.

See Mathiason, 429 U.S. at 495-96 , 97 S.Ct. 711 . A third factor, perhaps most important for this case, is that there is rarely custody when the person questioned leaves the interrogation unencumbered, only to be arrested at a later time. See Bartram v. State, 33 Md.App. 115, 148-49 , 364 A.2d 1119 (1976); Cummings, 27 Md.App. at 378-79 , 341 A.2d 294 ; see also United States v. Scully, 415 F.2d 680, 683-84 (2d Cir.1969) (holding that accused was not in custody when asked to go to the police station and left the station freely); United States v. Manglona, 414 F.2d 642, 644 (9th Cir.1969) (holding that accused was not in custody when told he was not under arrest and was free to leave, and did in fact freely leave the interview); State v. Patterson, 146 N.C.App. 113 , 552 S.E.2d 246, 252-54 (2001) (holding that accused was not in custody when asked to “give his side of the story” and then left the station unencumbered). ⁴⁴³ All three of the factors discussed above weigh against a finding of custody in Mineharis case. Adding further weight, we note that, at the beginning of the interview, Minehan stated on the record, “I came on my own free will,” and the officers told him that he was free to leave and that he did not have to answer any questions.

Moreover, before Minehan confessed, the officers again told him that he was not under arrest and that he could “leave and not say a thing.” After the confession, Detective Curtis further explained, “You are not ... under arrest. We are going to let you go. We will probably be contacting you to maybe discuss things here in the future.” These statements support a finding that Minehan was not in custody. We recognize that bringing Minehan to the police station to discuss the florist robbery was clearly a subterfuge for extracting a confession from him.

Furthermore, once the officers shifted the interview from the florist robbery to Mine-han’s alleged criminality, the pressure in the room increased, a change that is palpable from reading the transcripts and which was captured by Minehan’s anxious question, “What is happening to me?” With a slightly different set of facts, this police action would have jeopardized the admission of the entire confession; it was a risky enterprise. Given Minehan’s unencumbered departure and his statements on the record, however, we uphold admission of the confession, after all. It is also clear that the police undertook a deliberate and calculated strategy to avoid placing Minehan in custody, so as to impede the attachment of the right to counsel and the important consequences that would have flowed from the attachment of that right. A suspect, however, has no right to be placed in custody and to benefit from the heightened procedures that attach to a formal arrest.

Hoffa v. U.S., 385 U.S. 293, 310 , 87 S.Ct. 408 , 17 L.Ed.2d 374 (1966). B. Did Police Violate Minehan’s Right to Counsel? Our holding that Mineharis confession was not the product of custodial interrogation, and, accordingly, that Mi ⁴⁴⁴ randa rights did not attach, disposes of his alternative claim that the confession was invalid because police ignored his invocation of the right to counsel. He directs us to his question, “Should I get a lawyer?,” which he uttered moments before confessing.

There is indeed a right to counsel rooted in both the Fifth and Sixth Amendments of the U.S. Constitution. The Sixth Amendment right, however, attaches only when formal charges have been filed. See Massiah v. United States, 377 U.S. 201, 206 , 84 S.Ct. 1199 , 12 L.Ed.2d 246 (1964). And the Fifth Amendment right to counsel is part of the constitutional protection against compelled self-incrimination.

Miranda, 384 U.S. at 469 , 86 S.Ct. 1602 ; see also Raras v. State, 140 Md.App. 132, 153 , 780 A.2d 322 (2001). Since Minehan was not subject to compelled self-incrimination, he had no right to counsel, pursuant to Miranda . We note further that, even if a Fifth Amendment right to counsel had attached to the situation, Minehan