Perez v. State

DEBORAH S. EYLER, Judge. In the Circuit Court for Prince George’s County, Robert Angel Perez, the appellant, was convicted by a jury of two counts of felony murder, use of a handgun in a crime of violence, conspiracy to commit murder, two counts of robbery with a deadly weapon, and use of a handgun. He was sentenced to two consecutive terms of life without parole for the murder convictions, consecutive 20 and 10-year sentences for the use of a handgun and conspiracy convictions, and a concurrent 20-year sentence for use of a handgun. The robbery convictions were merged.

The appellant presents four questions for review, which we have rephrased as follows: I. Did the motion court err by not suppressing his three written statements and one oral statement to the police?

II

Was the trial court’s jury instruction about prompt presentment legally incorrect?

III

Did the trial court err by excluding evidence of a “false confession” by Antonio Meyers?

IV

Did the trial court err by excluding the testimony of defense witness Derrick Eberhardt? For the following reasons, we shall reverse the judgments and remand the case to the circuit court for further proceedings. FACTS AND PROCEEDINGS On September 15, 1999, Nirwan Tharpar, a veterinarian, and Shashi Tharpar, his wife, were murdered at their animal ²⁵⁶ hospital in Bladensburg. An employee of the hospital arrived at work- and, upon finding the Tharpars on the floor, called the police.

When the police arrived, they determined that Dr. Tharpar was dead from gunshot wounds to his head and he had sustained cutting wounds to his throat. Mrs. Tharpar still was alive, despite having been shot in the neck and just above both eyes. She was in dire straits, but managed to give a description of her assailant as a tall black male in his thirties. Mrs. Tharpar died shortly after being taken to the hospital.

Almost a year later, on August 7, 2000, a man named Keith Mahar told Prince George’s County Detective Joseph Hoffman that the appellant and a man named Thomas Gordon had admitted to killing the Tharpars at the animal hospital, during a robbery. The next day, the police obtained an arrest warrant for the appellant. Ultimately, the appellant was charged with numerous crimes in connection with the deaths. Gordon also was charged; he was tried separately, however.

The State’s theory of prosecution was that Gordon was the shooter and the appellant assisted him, by acting as the driver and “look-out” man. 1 In the appellant’s first trial, a jury convicted him of two counts of felony murder, two counts of robbery with a deadly weapon, and related offenses. The court sentenced the appellant to two terms of life without parole. On appeal, this Court vacated the judgments and remanded the case for further proceedings, including a new hearing on a motion to suppress three written statements and one oral statement the appellant had given to the police; and a new trial. Perez v. State (“Perez I”), 155 Md.App. 1 , 841 A.2d 372 (2004) (en banc).

A new suppression hearing was held on September 13 and 14, 2004. On October 25, 2004, the court issued a memorandum opinion and order denying the motion to suppress. The appellant’s second trial took place from November 15, 2004, to ²⁵⁷ November 19, 2004. After sentencing, on April 1, 2005, the appellant noted the instant appeal.

We shall recite the facts in detail in our discussion of the issues. DISCUSSION I. Did the Motion Court Err By Not Suppressing the Appellant’s Statements to the Police? (A) At the new suppression hearing, the State called Detectives Hoffman, Melvin Powell, Nelson Rhone, Ismael Canales, Robert Turner, and Lieutenant Joseph McCann to testify. It introduced into evidence documents including waivers signed by the appellant during the time he was being interrogated by the police and written statements the appellant gave the police.

The evidence adduced by the State showed the following: Detective Powell arrested the appellant on a warrant for the Tharpar murders on August 9, 2000, at 12:31 a.m. The appellant was transported to the Homicide Unit of the Criminal Investigation Division (“CID”) of the Prince George’s County Police Department, where he arrived at 12:42 a.m. From then until he was taken to a District Court Commissioner at 12:35 a.m., on August 11, 2000, the appellant was confined to an interview room, except during bathroom breaks. The interview room was 8 feet by 10 feet and was carpeted on its floor and walls.

It did not have any windows. It had one door with a peephole. There was a table and three chairs in the room. The temperature inside the room was the same as in the rest of the building.

The Commissioner’s Office was in the same building, just a short walk from the interview room. ²⁵⁸ The appellant was 18 years old, had a tenth grade education, and was able to read, write, and understand English. He had had prior dealings with the criminal justice system; some ninety days before this arrest, he had been before a Commissioner in another case. He was not under the influence of drugs or alcohol. While in the interview room, the appellant was not handcuffed or otherwise restrained.

At 12:59 a.m., Detectives Hoffman and Turner entered the interview room. The appellant was seated at the table. Detective Hoffman began reviewing an Advice of Rights and Waiver Form with him. That process was completed and the appellant signed the form at 1:03 a.m.

The appellant waived his rights under Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Detective Hoffman questioned the appellant, eliciting background information, including the appellant’s name, address, date of birth, phone numbers, friends, and employment status. At 1:40 a.m., Detective Hoffman gave the appellant a drink of water. The detectives then left the interview room.

From 1:40 a.m. to 2:25 a.m., the appellant was left alone. During that time, the detectives conferred with other detectives who were investigating the murders. At 2:25 a.m., the detectives returned and continued the interview. They talked with the appellant about some burglaries in Bowie.

They asked him if he knew Gordon. The appellant denied knowing him. When shown a Polaroid picture of Gordon, the appellant identified him as someone he knew as “Lucky.” The detectives confronted the appellant about the Tharpar homicides, accusing him of committing them. The appellant denied any involvement in the killings.

At 3:45 a.m., the appellant was given water. The detectives then left the interview room. At 4:31 a.m., Detr -tive Hoffman checked on the appellant, who appeared to be sleeping. The detective did not enter the interview room. ²⁵⁹ At 4:40 a.m., Detective Turner returned to the interview room and began to question the appellant. 2 He told the appellant that Gordon had implicated him in the murders.

(In fact, the detective had not yet spoken to Gordon.) The appellant responded by continuing to deny that he knew anything about the murders. Detective Turner questioned him about whether he had ever seen Gordon with a gun. The appellant said something about Gordon’s having used a gun to rob a 7-Eleven Store in Hagerstown. When asked whether Gordon had ever fired a gun in his presence, the appellant at first said no, but later said he had seen Gordon fire a gun twice, once at an address in Bowie.

In the course of the interview, and during later interviews, the appellant gave inconsistent information about how long he had known Gordon. Detective Turner left the interview room at 5:50 a.m. The appellant was alone until 7:25 a.m. At that time, Detective Rhone entered the room.

The appellant was asleep. The detective shook his arm to wake him up. He introduced himself and began interviewing the appellant about background information, including his name, address, date of birth, relatives’ names, employment, education, vehicles owned, criminal history, and friends. At 8:30 a.m., the appellant was given a glass of water and Detective Rhone took him to the bathroom.

Ten minutes later, the appellant and Detective Rhone returned to the interview room. The detective told the appellant he was at CID in regard to the Tharpar killings. Detective Rhone questioned the appellant about his friends and about breakings and enterings he had committed with “Lucky.” At 9:10 a.m., Detective Rhone presented the appellant with an Advice of Rights and Waiver Form, and began to review it with him. 3 At 9:15 a.m., the appellant signed the second Advice of Rights and Waiver Form. ²⁶⁰ At 9:28 a.m., Detective Rhone gave the appellant a candy bar and water. Detective Rhone began talking about the Tharpar murders, and told the appellant he was a target in the investigation of the killings.

At first, Perez denied any knowledge of the murders. He then told Detective Rhone about “one time” that he and Gordon had robbed a place that turned out to be an animal hospital. At 11:56 a.m., the appellant was given a bathroom break. He then was returned to the interview room, and at 12:07 p.m., began to give a written statement.

Detective Rhone filled out the background information about the appellant on the top part of the form. On the blank part of the form, the appellant wrote out his statement. Then, the appellant and Detective Rhone added a “Q & A”. Detective Rhone wrote out the questions and the answers that the appellant gave orally, and the appellant initialed the written answers and signed at the bottom of each page.

In the written statement, the appellant said that one day he and Gordon were riding together in the appellant’s car. Gordon said he needed to commit a robbery to get some money. Gordon pointed out a building and said that was the place they should rob. Gordon had a gun.

The appellant was not armed. They drove into the parking lot of the building. The appellant got out of the ear and walked into the lobby. He saw a white woman in her forties or fifties.

He knew he was in an animal hospital because there were pictures of animals on the walls. He returned to the car and parked away from the hospital. He and Gordon walked into the animal hospital together. The same woman was there.

Gordon asked the appellant if anyone else was there and the appellant replied, “not that [he] knew of.” According to the statement, the appellant and Gordon were in the animal hospital together for 2 or 8 minutes. The appellant then left, returned to the car, and drove it near to the hospital door so they could make a quick exit. When Gordon returned to the car, the appellant saw the gun in his ²⁶¹ waistband. They drove off.

Gordon gave the appellant $20 for gas. They didn’t talk about the robbery afterwards. The written statement was completed at 2:00 p.m. At 2:20 p.m., the appellant was given a fast food sandwich and then was taken for another bathroom break.

Detective Rhone left after that. At 2:58 p.m., Detective Hoffman entered the interview room. He presented the appellant with another Advice of Rights and Waiver Form and reviewed it with him. The appellant signed the form at 3:01 p.m.

Detective Hoffman interviewed him about the robbery of the animal hospital. The appellant said that Gordon had fired a gun three times while they were inside the hospital. At 3:31 p.m., Detective Hoffman and the appellant began to fill out another written statement and to draw a map of the location. Detective Hoffman wrote the background information about the appellant on the top part of the form.

The appellant wrote two pages of narrative on the form. Detective Hoffman then wrote three pages of “Q & A” comprised of questions by him and the answers given by the appellant and initialed by him. In this second written statement, the appellant said that, on the day he was talking about, a man named Jason Hicks called and asked him to pick up Gordon at his house. The appellant drove to Gordon’s house and Gordon got in his car.

At first, Gordon wanted to meet a girl he knew, to get money from her. When they could not find her, Gordon suggested they “jump” someone. The appellant refused. Gordon then said he wanted to rob a store.

The appellant said he did not want to. Gordon directed the appellant to pull into the parking lot of the animal hospital. The appellant went inside to see if there were any police there, which there were not. He returned to the car and parked it.

The appellant and Gordon walked into the animal hospital. The appellant was saying he did not want to rob the place, but Gordon was insisting. Gordon had a gun. The appellant was scared.

Gordon walked up to the counter and said, “This is a stickup. Give me all your money.” The appellant was by the ²⁶² door, looking outside. He heard a bang and dropped to the floor. He turned around and saw Gordon pointing the gun somewhere.

Gordon then shot the gun twice. The appellant ran outside and got in the car. He waited for four or five minutes, until Gordon returned. Gordon said he thought he had shot someone “in the arm or somewhere.” They drove off.

Gordon gave the appellant $30 dollars for gas. This second written statement and the map were completed at 5:01 p.m. The appellant was taken to the bathroom. He then was returned to the interview room and was left alone.

At 7:00 p.m., Detective Canales entered the interview room and told the appellant he was there to administer a Voice Stress Analysis (lie detector) test. The appellant agreed to undergo the test. Detective Canales reviewed an Advice of Rights and Waiver Form and a Truth Verification Release Form with the appellant, who signed them at 7:09 p.m. The lie detector test was administered and was completed at 8:10 p.m.

Detective Canales exited the interview room, leaving the appellant alone. Sometime between 11:00 and 11:30 p.m., Gordon arrived at CID. At 12:05 a.m. (August 10), Detective Hoffman entered the interview room and saw the appellant sleeping.

The appellant got up when the detective entered the room. Detective Hoffman presented the appellant with a fourth Advice of Rights and Waiver Form and reviewed it with him. The appellant signed the form at 12:08 a.m. At 12:10 a.m., the detective presented the appellant with a “Commissioner’s Waiver,” which the appellant signed.

The “Commissioner’s Waiver” stated: “It is now 12:10 a.m. on August 10, 2000. You have been in the custody of the Prince George’s County Police for over 23 hours. You have a right to be presented before a District Court Commissioner within 24 hours of your apprehension.” The form then set forth a series of questions, with a space next to each for the appellant to write his answer. The questions and answers as written by the appellant, were: ²⁶³ Ql: Do you have any objection to remaining in the Homicide Unit for additional questioning?

Al: No Q.2: Is this decision to remain in the Homicide Unit voluntary? A.2: Yes Q.3: Have you been threatened or coerced in any way in order to get you to remain in the Homicide Unit? A.3: No Q.4: Have you been advised of your Constitutional Rights prior to being questioned? A.4: Yes Q.5: Do you completely understand these rights?

A.5: Yes Q.6: Have you been denied the use of the bathroom or telephone while in the Homicide Unit? A.6: No Q.7: Have you at any time requested an attorney be present while in the Homicide Unit? A.7: No From then until noon (approximately twelve hours), the appellant was left alone in the interview room. At noon, Detective Rhone entered the interview room and presented the appellant with a fifth Advice of Rights and Waiver Form.

The form was reviewed, and the appellant signed it at 12:05 p.m. At 12:10 p.m., Detective Rhone presented the appellant with a second “Commissioner’s Waiver,” identical to the first. 4 The appellant signed it. The detective then began to interview the appellant about the murders, objects taken during the robbery, the murder weapon, and what Gordon was telling the detectives. Detective Rhone used a Nextel walkie-talkie to let the appellant hear what Gordon was telling another ²⁶⁴ detective in another interview room.

Gordon was admitting to involvement in the robbery and the murders and was implicating the appellant in those crimes. At 1:07 p.m., Detective. Rhone and the appellant began writing another statement. This third written statement was essentially the same as the appellant’s second written statement, with a few exceptions.

The appellant admitted that he had had a knife in his car, in the console between the two front seats, and that before the robbery he had shown it to Gordon, who took it. Gordon never returned the knife to him. The appellant described the knife and drew a picture of it. The appellant also said he did not know who Gordon was shooting at during the robbery and did not know if Gordon had taken any jewelry during the robbery.

According to the appellant, when Gordon ran out of the animal hospital, he was carrying a black pocketbook. In the car, Gordon opened the pocketbook, took money out of it, and then threw the pocketbook out the window. In addition, at some point, Gordon told the appellant that the gun had been stashed in the woods near Colonel Circle. The appellant’s third written statement was completed at 4:40 p.m., and he was given food.

He was left alone in the interview room until 5:30 p.m. Detective Turner entered the room at that point. He asked the appellant who he had told about his participation in the double homicide. The appellant said he had not told anyone.

Detective Turner remarked that it was “a big burden to carry, that you participated in killing two people.” The appellant shook his head and said “he wasn’t proud of what he had done. That’s something he wouldn’t brag about.” Detective Turner exited the interview room at approximately 6:00 p.m. From then until 12:35 a.m. (August 11) (approximately 7 hours) the appellant was left alone.

At that time, Detective Rhone and Detective Bergstrom entered the interview room 5 and escorted the appellant to the Commissioner’s Office, for presentment. ²⁶⁵ The appellant testified that he asked for a lawyer, but was denied one; was forced to write the statements and sign the waiver forms; was given water but was not allowed to sleep and was not given any food; only slept for “a couple of hours” during the entire time he was in the interview room; initialed the “Q & A” sections of all three written statements immediately before he was taken to the Commissioner; signed all of the Advice of Rights and Waiver Forms and all of the “Commissioner’s Waivers” immediately before being taken to the Commissioner; was assaulted by two of the detectives; and wrote the statements only because he was afraid of more physical abuse. On rebuttal, Detectives Rhone, Turner, and Hoffman denied that any of the events that the appellant had testified about had occurred. On October 25, 2004, the motion court issued a memorandum opinion and order denying the motion to suppress. The court made factual findings that credited the testimony of the police officers and discredited the appellant’s testimony.

The opinion included a time-line of events that was consistent with the officers’ testimony. The court found that all of the Advice of Rights and Waiver Forms and both of the “Commissioner’s Waivers” were signed by the appellant voluntarily, with an understanding of his rights. The court further found that the appellant gave all of his statements without being physically threatened or assaulted and without any promises or rewards; and that he did not at any time request an attorney or that questioning be stopped. The motion court determined that the entire period of delay was approximately 44 hours.

It did not include in that period the approximately six hours immediately before the appellant was taken to the Commissioner, because he was not questioned during that time. The motion court further found that the detectives were aware of the prompt presentment rule, as set forth in Maryland Rule 4-212. The court determined that “[a]t all relevant times, the delay in presentment was unnecessary[.]” It found ²⁶⁶ that the delay in presentment from 12:39 a.m. to 8:10 p.m. on August 9, 2000, was not solely for the purpose of eliciting a confession from the appellant but also was for the purpose of engaging in further investigation of the homicides and robbery. During that time, the police were investigating what objects were stolen from the scene, the location of the murder weapon, possible witnesses, the appellant’s relationship with Gordon, and whether he had information about Gordon’s use of firearms.

Also, the detectives were attempting to have Gordon transferred to CID from Anne Arundel County, where he was in custody. The motion court then found that the delay in presentment from 12:05 a.m. on August 10, to 12:35 a.m. on August 11, 2000, was for the sole purpose of eliciting incriminating statements from the appellant. Accordingly, the court was “required to apply heavy weight to this delay in presentment when evaluating the voluntariness of [the appellant’s] written statement given to Detective Rhone [the third written statement] and his oral statement that ‘he wasn’t proud of what he had done’ made to Detective Turner.” The motion court concluded that all four of the appellant’s inculpatory statements were given voluntarily. With respect to the statements made during the “sole purpose for delay” period, the court applied very heavy weight to the delay in presentment, took into account the total circumstances, as set forth in its previous findings that reflected the officers’ testimony about the events, and also took into account this Court’s statement in our Perez 1 opinion that “a delay in presentment, even of the type that meets the heavy weight standard, cannot be the sole reason for finding involuntariness.” 155 Md.App. at 31 , 841 A.2d 372 (citing Md.Code (1973, 2002 Repl.Vol.), § 10-912 of the Courts and Judicial Proceedings Article (“CJP”)).

(B) The appellant contends the motion court erred in ruling that his inculpatory statements were voluntarily made, and there ²⁶⁷ fore were admissible. His contention is three-fold. First, he maintains that the record does not support the court’s finding that the delay in presentment from his arrival at the police station until 8:10 p.m. on August 9 was not solely for the purpose of eliciting a confession. He argues that, on the evidence presented, the court should have found that the delay in presentment was unnecessary, deliberate, and for the sole purpose of obtaining a confession.

Second, he complains that the motion court did not recite the factors it found determinative in ruling that his inculpatory statements were voluntary. Finally, he argues that the evidence established that the “Commissioner’s Waivers” were insufficient to advise him of the rights he was waiving, and therefore could not have produced a knowing and voluntary waiver of those rights; and that, in any event, the first such waiver was presented to him at hour 23 in custody, after his right to prompt presentment already had been violated, and therefore could not effect a valid waiver of that right. The State responds that the motion court did not err in ruling the appellant’s four statements to the police admissible. First, the record supports the court’s finding that the delay in presentment up to 8:10 p.m. on August 9, was not solely for the purpose of eliciting a confession, and shows that the delay also was to allow for further investigation.

Second, the court did recite the factors it found determinative in ruling that the statements were voluntary. Last, the “Commissioner’s Waivers” were legally effective, especially when coupled with the appellant’s testimony that he recently had been before a Commissioner and knew “all about” what a Commissioner is. It concludes that, under the totality of the circumstances, all four statements were voluntarily given. LAW OF CONFESSIONS To be admissible in evidence, a confession must be voluntary under Maryland non-constitutional law, the due process clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights, and obtained in conformity with Miranda v. ²⁶⁸ Arizona.

Knight v. State, 381 Md. 517, 531-32 , 850 A.2d 1179 (2004); Ball v. State, 347 Md. 156 , 173-74 and 178-79, 699 A.2d 1170 (1997); Harper v. State, 162 Md.App. 55, 71 , 873 A.2d 395 (2005). In a pretrial challenge to the admissibility of an inculpatory statement, the State bears the burden of proving, by a preponderance of the evidence, that the statement was given voluntarily. Winder v. State, 362 Md. 275, 306 , 765 A.2d 97 (2001). Ordinarily, the voluntariness of a confession is assessed based on a totality of the circumstances test.

Id. at 307 , 765 A.2d 97 . In determining the voluntariness of a confession under the total circumstances, “[w]e look to all of the elements of the interrogation to determine whether a suspect’s confession was given to the police through the exercise of free will or was coerced through the use of improper means.” Id. Included in the non-constitutional litany of factors to be considered are where the interrogation was conducted; its length; who was present; how it was conducted; whether the defendant was given Miranda warnings; the mental and physical condition of the defendant; the age, background, experience, education, character, and intelligence of the defendant; when the defendant was taken before a court Commissioner following arrest[;] and whether the defendant was physically mistreated, physically intimidated or psychologically pressured. Hof v. State, 337 Md. 581, 596-97 , 655 A.2d 370 (1995) (citations omitted).

TRILOGY OF PRESENTMENT CASES After the appellant’s first trial and before we decided Perez I, the Court of Appeals filed three opinions on the same day holding that, in some circumstances, an unnecessary delay in presentment must be given “very heavy weight” as a factor in determining the voluntariness of a confession. In all three cases, the Court examined the interplay between Rule 4-212, first adopted in 1971, and CJP section 10-912, enacted in 1981 ²⁶⁹ in response to the Court of Appeals’s decisions in Johnson v. State, 282 Md. 314 , 384 A.2d 709 (1978), and McClain v. State, 288 Md. 456 , 419 A.2d 369 (1980), holding that any statement obtained after a delay in presentment of more than 24 hours was subject to a per se exclusionary rule. Subsection (e) of Rule 4-212 states that an arrestee shall be presented to a District Court Commissioner “without unnecessary delay and in no event later than 24 hours after arrest.” CJP section 10-912, entitled “Failure to take defendant before judicial officer after arrest,” provides: (a) Confession not rendered inadmissible.—A confession may not be excluded from evidence solely because the defendant was not taken before a judicial officer after arrest within any time period specified by Title 4 of the Maryland Rules. (b) Effect of failure to comply strictly with Title 4 of the Maryland Rules.—Failure to strictly comply with the provisions of Title 4 of the Maryland Rules pertaining to taking a defendant before a judicial officer after arrest is only one factor, among others, to be considered by the court in deciding the voluntariness and admissibility of a confession.

In Williams v. State, 375 Md. 404 , 825 A.2d 1078 (2003), the defendant was arrested at 4:10 a.m. on July 30, 2000, on suspicion of robbery. He was bitten by a police dog during the arrest and so was taken to the hospital for treatment. He then was taken to the police station’s robbery unit. At 9:25 a.m., he was placed in an interview room for an “initial interview.” At 10:30 a.m., he signed an Advice of Rights and Waiver Form.

He was questioned about and confessed to two robberies. He began a written statement about one of the robberies at 10:35 a.m. When that statement was completed, the detective ran a computer check, which revealed that the defendant was using an alias. The detective was able to determine the defendant’s true identity from a paystub taken from him when he arrived at the police station.

A computer check using the defendant’s ²⁷⁰ real name revealed that he was wanted in connection with three homicides. At 11:40 a.m., the defendant began making a written statement about the second robbery. At 1:13 p.m., the defendant was transported to the homicide unit. He waived his Miranda rights at 1:23 p.m. and confessed to the homicides.

Another detective entered the interview room at 6:31 p.m. to take a written statement. The defendant waived his Miranda rights again at 6:38 p.m. He started writing a statement in which he confessed to the homicides, finishing at 8:40 p.m. He then was engaged in a question and answer session with the detective until 9:57 p.m.

At 9:58 p.m., the defendant began writing a 10-page statement about two of the homicides. He finished at 10:44 p.m. He was engaged in another question and answer session until 12:20 a.m. on July 31. He was left in the interview room overnight.

At 8:50 a.m., a detective entered the room to check on the defendant. The detective then left the room to read the defendant’s previously written statements. He re-entered the interview room at 10:21 a.m., and began questioning the defendant about the homicides. At 12:39 p.m., the police took the defendant for a drive to locate the home of one of his accomplices.

They returned to the station around 12:50 p.m. The defendant made a photographic identification of the accomplice at 1:04 p.m. He then ate lunch and asked to speak to a detective he previously had spoken to. At 3:39 p.m., that detective entered the room.

The defendant admitted to concealing information about the murders from the police and agreed to provide another written statement, which he began writing at 4:08 p.m. That statement was completed at 5:51 p.m. He was taken for “processing” at 8:30 p.m. He was not taken before a Commissioner until 3:07 a.m. on August 1, some 47 hours after his arrest. ²⁷¹ At all times during his detention, the defendant was permitted food, water, bathroom breaks, and cigarettes.

He never asked for an attorney or invoked his right to remain silent. He never complained about his injuries. He never asked to stop the interrogation or to be taken promptly before the Commissioner. The defendant was tried and convicted for murder.

Before trial, he moved to suppress his written statements on the ground that they were involuntary. The Court of Appeals ultimately reversed the murder conviction, ruling that the three written statements about the homicides were involuntary. The Court stated that the circuit court did not give appropriate weight to the violation of the delay in presentment in deciding voluntariness. It noted that, after the second written statement was completed, and after three hours of interrogation, the police had the basic information they needed to present the defendant to the Commissioner.

Instead, they detained him for the purpose of obtaining incriminating statements. The Court held that when a defendant is unnecessarily and deliberately detained in violation of his prompt presentment rights, solely for the purpose of obtaining an incriminating statement, a motion court must give that delay “very heavy weight in determining whether a resulting confession is voluntary.” Williams, supra, 375 Md. at 434 , 825 A.2d 1078 . The Court recognized that an arrestee may validly waive his right to prompt presentment. It noted that such a waiver form could be as easily standardized as an Advice of Rights and Waiver Form.

In Hiligh v. State, 375 Md. 456 , 825 A.2d 1108 (2003), the defendant was taken to the police station at 10:58 p.m., on March 20, 1995, following a robbery investigation. Although he provided the police with the wrong name, they discovered his true identity. After he was identified by an eyewitness to one of the robberies, he was arrested. ²⁷² The defendant was handcuffed to a one-foot cable connected to a wall in the interrogation room while the police prepared their charging documents. Those documents were completed by 3:30 a.m.

The defendant remained in the room until 7:15 a.m., except for bathroom breaks, and was taken to the hospital to be treated for a minor head wound received after his refusal to follow police orders when he was apprehended. He was returned to the interrogation room at 8:35 a.m. The defendant waived his Miranda rights and was questioned by the police, who were attempting to get background information and to “build a rapport” with him. On March 21, at 1:23 p.m., he made his first inculpatory statement.

He made additional statements at 1:55 p.m.; 2:51 p.m.; 3:18 p.m.; 4:45 p.m.; and a later time not disclosed by the record. By 6:00 p.m., the defendant had been turned over to detectives from two other counties in which he also was a robbery suspect. He was presented to a Commissioner at 10:30 p.m. on March 21, some 23 hours and 32 minutes after he first was brought to the station. The defendant was allowed food, water, and bathroom breaks.

His defense attorney did not move to suppress the inculpatory statements as involuntary because of the delay in presentment. The statements were admitted at his trial, and he was convicted. The defendant petitioned for post-conviction relief, on the ground of ineffective assistance of counsel. The postconviction court denied him relief.

Ultimately, the Court of Appeals reversed. The question before the Court was whether the defendant had introduced sufficient evidence to satisfy the prejudice prong of the test set forth in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Reciting language from Williams, supra, the Court noted that the police had all the information they needed to present the defendant to the Commissioner by 3:30 a.m. on March 21, ²⁷³ four and one-half hours after he was arrested. It concluded that any delay after that was unnecessary, deliberate, and for the sole purpose of eliciting an incriminating statement, and that the trial court therefore should have given the delay very heavy weight in its voluntariness determination.

If it had done so, the trial court then might have suppressed the statement, or the jury might have found that it was involuntarily made. Accordingly, there was evidence on post-conviction that the trial counsel’s failure to raise delaying presentment in a challenge to voluntariness of the defendant’s statements was ineffective assistance of counsel of the type that created a substantial possibility that the outcome of the trial would have been different. In Facon v. State, 375 Md. 435 , 825 A.2d 1096 (2003), the defendant was arrested on robbery offenses in the District of Columbia during the evening hours of August 31, 1999. He waived extradition to Prince George’s County and arrived there at 10:00 p.m.

He was placed in an interview room. He was interviewed from 10:30 p.m. until 11:55 p.m. about general background information. He was left alone until 12:22 a.m. on September 1. He again talked to an officer about his general life background until 2:55 a.m.

He was left alone again until 3:20 a.m. He then spoke to an officer until 4:25 a.m. Another officer entered at 4:40 a.m. and discussed more general matters of the defendant’s life. He was photographed from 5:55 a.m. until 6:35 a.m.

The officer informed the defendant that he was finished talking about his life, and wanted to discuss the evidence against him. The defendant waived his Miranda rights at 7:14 a.m. He began to confess immediately, and finished his confession at 7:45 a.m. At 10:30 a.m., he was brought before the Commissioner.

The motion court found that the confession was knowingly and voluntarily made. The Court of Appeals ultimately reversed. The Court rejected the defendant’s argument that the calculation of the length of his detention for presentment delay purposes should have begun upon his arrest in the District of ²⁷⁴ Columbia. The Court held that the clock does not begin to run for presentment delay purposes until the defendant is present in Maryland.

It calculated the presentment delay as 12 hours. The Court pointed out, however, that the time preceding his arrival in Maryland is a factor to be considered in a voluntariness determination. Even so, the Court concluded that the delay was deliberate, unnecessary, and for the sole purpose of eliciting an incriminating statement. It noted that the defendant never waived his right to prompt presentment.

The Court held that the trial court erred by assigning the delay no weight, when it should have assigned the delay very heavy weight. The Court remanded the case to the circuit court for a new trial. ODUM In Odum v. State, 156 Md.App. 184 , 846 A.2d 445 (2004), the defendant, a robbery suspect, was arrested at 11:00 a.m. on June 26, 2001. At 11:37 a.m., he was placed in an interview room.

The principal investigating officer for the robbery was not present at the police station, but was informed about the arrest. He asked that the defendant be checked on and held until he could get to the station. At 5:40 p.m., the investigating officer entered the interview room. He informed the defendant of the charges against him and photographed him.

The officer left the room at 6:30 p.m. At 6:52 p.m., another officer entered the room and obtained a Miranda waiver from the defendant. Sometime between 8:21 p.m. and 9:10 p.m., the officer asked the defendant his whereabouts on the night of the robbery. The defendant replied that he had been in Virginia.

No other questions were asked. From 9:10 p.m. until 1:00 a.m. on June 27, the defendant was alone in the interview room. Another detective then entered the room. He explained that he was investigating a murder.

There was some general conversation about the defendant’s background. At 2:00 a.m., ²⁷⁵ the defendant again waived his Miranda rights. He gave a written statement to the detective between 2:00 a.m. and 4:00 a.m. The defendant remained in the interview room until 1:56 p.m.

He then was taken to a holding cell near the Commissioner’s hearing room, and was presented to the Commissioner at 6:12 p.m. The length of the delay was 30)6 hours. The motion court found that the confession was voluntarily given. In deciding whether the motion court erred in admitting the statement, this Court reviewed the Court of Appeals’s trilogy of delay in presentment cases and then set forth four categories of presentment delays, explaining the appropriate weight to be given each type.

The first type of delay is one that can have no effect on the voluntariness of a statement and is, therefore, immaterial to suppression. The second type of delay is necessary delay. We set forth examples of such delay: “ ‘(1) [T]o carry out reasonable routine administrative procedures such as recording, fingerprinting and photographing; (2) to determine whether a charging document should be issued accusing the arrestee of a crime; (3) to verify the commission of the crimes specified in the charging document; (4) to obtain information likely to be a significant aid in averting harm to persons or loss to property of substantial value; (5) to obtain relevant nontestimonial information likely to be significant in discovering the identity or location of other persons who may be associated with the arrestee in the commission of the offense for which he was apprehended, or in preventing the loss, alteration or destruction of evidence relating to such crime.’ ” Odum, supra, 156 Md.App. at 202 , 846 A.2d 445 (quoting Williams, supra, 375 Md. at 420, 825 A.2d 1078 (quoting Johnson, supra, 282 Md. at 329 , 384 A.2d 709 )). Necessary delays do not violate the prompt presentment rule and do not weigh at all against voluntariness.

The third type of delay we dubbed a “Class I” delay. This is an unnecessary and deliberate delay that is not for the sole ²⁷⁶ purpose of obtaining a confession. Class I delays are to be weighed against voluntariness, but need not be assigned “ ‘very heavy’ weight.” Id, at 203, 846 A.2d 445 . The fourth type of delay is a “Class II” delay.

This is an unnecessary and deliberate delay that violates the prompt presentment requirement and is for the sole purpose of obtaining a confession. A suppression court must weigh this type of delay “ ‘very heavily’ against voluntariness.” Id. Finally, we recognized a fifth type of delay, one that is for the sole purpose of custodial interrogation, but during which no interrogation actually occurs. We remanded the case to the circuit court for another suppression hearing in light of the trilogy of Court of Appeals cases addressing presentment delays.

PEREZ I In Perez I, the appellant argued the motion court erred in denying his motion to suppress his statements on the ground that they were involuntary. We vacated the judgments and remanded the case to the circuit court for a new suppression hearing and new trial. We directed the court to decide the amount of weight that should be given to the presentment delays in light of the trilogy of the Court of Appeals presentment cases; to make factual findings about the other relevant voluntariness factors; and to apply the totality of the circumstances test to determine if the confessions were voluntary. We also discussed the issue of whether the appellant had waived his right to prompt presentment, so as to give guidance to the court on remand.

We explained that the waivers should be considered as a factor in determining voluntariness. We recognized that, under Logan v. State, 289 Md. 460 , 425 A.2d 632 (1981), and Simkus v. State, 296 Md. 718 , 464 A.2d 1055 (1983), an arrestee may validly waive his prompt presentment rights. We suggested that, if the motion court found that the “Commissioner’s Waivers” were valid, an otherwise voluntary ²⁷⁷ confession made after a violation of the appellant’s prompt presentment rights but also after a valid waiver of those rights “would not necessarily be tainted.” Id. Finally, we commented that, “[t]o the extent that the effect of waivers in a situation like the one before us is unclear, it constitutes another reason why the suppression court, on remand, should review the issues de novo.” Id. at 35, 841 A.2d 372 .

STANDARD OF REVIEW “[WJhether a confession was made voluntarily is a mixed question of law and fact.” Knight, supra, 381 Md. at 535 , 850