Reynolds v. State

CHASANOW, Judge. There are several links in the long chain that brings this case to us. The first—and certainly not the least—is when members of the family of Frederick William Reynolds, Jr., ⁴⁹⁷ confronted him, late in the spring of 1989, with dark secrets two of his adult daughters had just shared with them. For years, according to the women, Reynolds had sexually abused them at the family farm in Carroll County when they were children; one he had repeatedly raped throughout her youth and into her adolescence.

Now in his 50s with the girls grown, Reynolds was no longer engaged in criminally incestuous behavior. But also now there were granddaughters, and Crystal, the eldest daughter and the one who had suffered the most, feared for them. That fear led her to tell other family members what had happened to her; she learned she was not the only daughter who had been sexually abused. The family then confronted Reynolds and urged him to get help.

Reynolds went to a pastor, who counseled him and other family members for a period of time. The cleric’s schedule did not allow him to see Reynolds very often that summer, so he suggested that Reynolds seek further help from an organization called Family Children’s Service Center in Westminster. Reynolds agreed and phoned for an appointment. When Reynolds arrived at the Center, he spoke there with a woman named Marcia Meyer.

Reynolds testified later, “She said that I had to be very honest with them, that they would take me on, that they had lots of patients like I was and they would—they could help.” But Meyer told Reynolds that he would have to sign a form authorizing her organization to notify the police of any evidence implicating him as a child abuser. Reynolds asked Meyer about the form, and “she said you can’t take counseling here unless you sign this because I cannot do it with you.” 1 ⁴⁹⁸ Uncertain what to do, Reynolds telephoned the Carroll County State’s Attorney’s office and spoke with Assistant State’s Attorney Kathi Hill. The call was unexpected, and Hill tried to be both cautious and candid. According to Reynolds, she told him, “Well, you should go and take your counseling right now, that’s the first thing.” Hill added, “It’s been a long time since this occurred, but I cannot give you advice because if—I—it may, in the future,—I’m—I’m a prosecutor.

I prosecute these types of cases.” Reynolds wanted help and assumed that all counselors would have the same policy about reporting to the police as did the Family Children’s Service Center (the Center). 2 Accompanied by his wife, Agnes, he went to the Center and signed the form. After Reynolds’ counseling program was underway, Meyer called Reynolds and told him that the police wanted to talk with him. It was not part of the program, she said, and he did not have to discuss anything with the police if he did not want to. Still, Reynolds agreed to meet Corporal Richard E. Norman of the Maryland State Police at the Center.

He agreed to speak with Norman, Reynolds later testified, because “that’s what my children had told me they wanted; they weren’t interested in prosecution or jail.” On July 11, 1989, Norman came to interview Reynolds at the Center. Norman introduced himself and told Reynolds that he understood “some statements” had been made to Meyer; would Reynolds now “tell me the same things?” ⁴⁹⁹ “Well,” Reynolds replied, “whatever I tell you is goin’ to incriminate me.” Norman asked what he meant, and Reynolds explained, “Well, I’m an abuser—I’m considered an abuser.” At that point, Norman told Reynolds that he did not have to say anything. Reynolds then asked for “his rights,” though he later testified that he had made this request “jokingly.” Nevertheless, Norman obliged, reading the “Miranda rights” aloud from a printed card he carried. 3 According to his testimony, Norman also advised Reynolds that “he wasn’t under arrest and he didn’t have to talk to me; I mean, he didn’t have to say a thing to me.” Again, Reynolds acknowledged that he would be “incriminating” himself. The July 11 interview began and lasted “anywhere from fifteen minutes to an hour.” Reynolds talked about sexually touching all four of his daughters, starting with each when she was about ten years old.

As for Crystal, there was more than touching; he had sexual intercourse with her periodically until she was well into her high school years. Reynolds told Norman where and how he might be able to contact his daughters. After the interview, Norman pursued his investigation, eventually talking at length with Crystal and with Vivian, the second daughter. Over a period of time both women gave detailed accounts of how they were abused by their father.

After a long interviewing session with Crystal on September 6, 1989, Norman decided to speak again with Reynolds. That afternoon, he went to Reynolds’ home. ⁵⁰⁰ Reynolds was not there, so Norman waited. Shortly after 4 P.M. Reynolds showed up, and the investigator asked if he could speak with him because Crystal “had told me things.” Reynolds said, “Fine,” and the two men went inside. According to Reynolds’ testimony later, Norman “explained to me that he wanted me to try to remember the events as closely as I could and I couldn’t understand that and he says, ‘It’s for Crystal’s good because if you can’t remember them, she doesn’t think anybody believes her, that it didn’t happen,’ and so I was to try to remember because I would really be helping my daughter, that—she needed that for her own mental health____” Eventually Norman’s second interview with Reynolds began.

This time, their conversation was tape-recorded. “First of all, you’re not under arrest, okay, like I told you a bit earlier,” Norman advised Reynolds. “Same situation down in—in Ms. Meyer’s office. All I want to do is just get some information from you, hear your side of the story again and, you know, you don’t have to talk to me. If you want me to leave, I’ll leave, you know.” Reynolds talked about his sexual episodes with Crystal and Vivian. At times he corroborated what his daughters had told Norman about some of the events; other incidents from the past he disputed or could not remember.

When Norman began to follow up after Reynolds acknowledged threatening Crystal to get his way, Reynolds asked, “Well, why do you need those times?” “Because I’m trying to verify what she’s telling me,” Norman responded. “But you’re not arresting me,” continued Reynolds. “Why do you need to know every little detail?” “Because it’s important for her to understand,” Norman replied, “you know, and that—that I can—I can say, yes, you know, I talked to your dad and—and he’s saying that everything that happened____” At that moment, Reynolds interrupted Norman to get the phone. When he came back ten minutes later, Agnes was with him. ⁵⁰¹ Norman reopened the interview with these words: "You realize I’m—I’m not gonna arrest you today. All I want to do is just talk to you, you know, and you’re not under arrest and I can leave—you want me to leave any time you want, so I [inaudible] understand that. Do you understand that?” Reynolds indicated he did, and the conversation continued until just before 5:20 P.M. Two days later, Norman returned and arrested Reynolds, who was eventually charged with several sexual offenses against Crystal and Vivian.

Before trial, Reynolds moved to suppress the incriminating statements he had made to Norman. The trial court denied the motion, finding that Reynolds had confessed freely and voluntarily to the State Police investigator. Neither Marcia Meyer nor anyone else from the Family Children’s Service Center testified about anything Reynolds said in counseling. The only statements by Reynolds introduced into evidence were those he had made directly to Norman.

After a two-day trial, a Carroll County Circuit Court jury found Reynolds guilty of second degree rape, two counts of second degree sexual offense, assault with intent to rape, assault with intent to commit second degree sex offense, and incest. On June 5, 1990, Judge Donald Gilmore sentenced Reynolds to a total of 50 years in prison. Reynolds appealed, but the Court of Special Appeals affirmed the judgment against him. Reynolds v. State, 88 Md.App. 197 , 594 A.2d 609 (1991).

Reynolds petitioned this Court for a writ of certiorari, which we granted. As was the case in the Court of Special Appeals, Reynolds’ attack on his convictions focuses on the statements he gave to Norman. He challenges their introduction into evidence, claiming that they were the result of improper inducement and violative of his due process rights. In support of his contention, Reynolds relies on both constitutional and common law arguments.

For the following reasons, we, too, decline to set aside his convictions. ⁵⁰² THE FIRST CONFESSION Reynolds complains that what Assistant State’s Attorney Kathi Hill told him during their brief telephone conversation induced him to confess. Therefore, he argues, his subsequent statements to Norman were involuntary. He further contends that Hill should have warned him about “the consequences of seeking counseling.” Under Reynolds’ reasoning, Hill’s failure to do so led him to make admissions to the counselors, which in turn led to his admissions to Norman and thus rendered his statements inadmissible. Reynolds bases his argument on both constitutional and common law voluntariness grounds.

The State contends that the issue of common law voluntariness was waived because Reynolds failed to present it with specificity to the trial court; the Court of Special Appeals agreed. 88 Md.App. at 219-21 , 594 A.2d at 620 . Reynolds claims the issue was raised when, in his motion to suppress, he argued that his confession was admitted in violation of “other legal rights,” citing a host of common law voluntariness cases including Stokes v. State, 289 Md. 155 , 423 A.2d 552 (1980); Hillard v. State, 286 Md. 145 , 406 A.2d 415 (1979); and Bellamy v. State, 50 Md.App. 65 , 435 A.2d 821 (1981), cert. denied, 292 Md. 376 (1982). Reynolds further asserts that he specifically adopted the arguments and points and authorities contained in his motion at the suppression hearing. Because Reynolds’ common law voluntariness contentions are intertwined with his constitutional voluntariness contentions, we are going to assume that the issue was raised below.

But we caution defense counsel that they must be precise when they craft such motions and when they argue them at suppression hearings. It is an attorney’s obligation to present with clarity all issues that must be resolved by a trial judge, whose responsibilities include making sure that proper evidence is presented to those entrusted with determining guilt or innocence. In the future, we will be less inclined to review an issue such as the one on common law voluntariness that Reynolds says was included in his scat ⁵⁰³ tergun motion but which was not specifically argued and clearly identified at the suppression hearing. Originally common law confessions were admissible even if they had been wrung from hapless suspects by torture.

W. LaFave & J. Israel, 1 Criminal Procedure § 6.2, at 439 (1984) (hereinafter LaFave & Israel). In 1775, Lord Mansfield first articulated what Wigmore would later characterize as the initial expression of the requirement that a confession be voluntary in order to be admissible against a criminal defendant. In that early elucidation, Lord Mansfield specifically referred to promises as one of the factors that might render a confession inadmissible. He stated: “The instance has frequently happened, of persons having made confessions under threats or promises: the consequence as frequently has been, that such examinations and confessions have not been made use of against them on their trial.” Rudd’s Case, 1 Leach Cr.C. 115, 118, 168 Eng.Rep. 160, 161 (1775), quoted in 1 McCormick on Evidence § 146 (4th ed. 1992) (hereinafter McCormick).

See 3 Wigmore, Evidence §§ 818-19 (Chadbourne rev. 1970) (hereinafter Wigmore). The common law approach was to identify inducements that might make a confession unreliable or even false. Actual or threatened physical harm, promises to be lenient upon conviction or not to prosecute, and deceptive interrogation came under scrutiny. See LaFave & Israel § 6.2, at 443.

Examination of a confession’s “voluntariness” can be made both under a constitutional due process analysis and by application of state evidentiary laws. See generally 1 McCormick §§ 146-47, at 564-74. When analyzing whether a confession was voluntary under due process standards, “[t]he test is of the totality of the circumstances. All of the circumstances of the interrogation, and the particular characteristics of the accused must be examined.

Generally, no one factor is dispositive.” D. Nissan et al., Law of Confessions § 1:9 (1980, 1991 Cum.Supp.) (hereinafter Law of Confessions). “[W]hether [a] confession was obtained by coercion or improper inducement can be deter ⁵⁰⁴ mined only by an examination of all of the attendant circumstances.” Haynes v. Washington, 373 U.S. 503, 513 , 83 S.Ct. 1336, 1343 , 10 L.Ed.2d 513, 521 (1963). It is clear that coercion by government agents is a necessary ingredient to a determination that a defendant’s confession should be suppressed because the defendant’s constitutional due process rights have been violated. “Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Colorado v. Connelly, 479 U.S. 157, 164 , 107 S.Ct. 515, 520 , 93 L.Ed.2d 473, 482 (1986). Determining voluntariness under common law principles, as opposed to constitutional due process requirements, may require an additional inquiry. “Generally, the approach under the common law rule was to identify certain inducements which made a confession unreliable. These included actual or threatened physical harm, a promise not to prosecute, a promise to provide lenient treatment upon conviction, and deceptive practices so extreme that they might have produced a false confession.” LaFave & Israel § 6.2, at 440.

This Court has held that, regardless of constitutional imperatives, Maryland law demands that confessions “be shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.” Hillard, 286 Md. at 150 , 406 A.2d at 418 . In harmony with the approach taken in federal constitutional analysis, Maryland has for the most part applied a “totality of the circumstances” rule when appraising the voluntariness of confessions under state nonconstitutional law. See Hoey v. State, 311 Md. 473, 483 , 536 A.2d 622, 627 (1988); Lewis v. State, 285 Md. 705, 721 , 404 A.2d 1073, 1081 (1979). See also State v. Kidd, 281 Md. 32, 36 , 375 A.2d 1105, 1108, cert. denied, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977).

One area that has attracted special attention with respect to voluntariness—both under common law and con ⁵⁰⁵ stitutional due process requirements—concerns promises made to suspects being interrogated. 1 McCormick § 154. It is the defendant’s sensitivity to inducement while in custody and the potential impact of the promise of leniency that render the confession inadmissible. Courts abhor, or at least find distasteful, promises of leniency or immunity made by state agents to defendants subject to the vulnerability of custodial interrogation. In contrast, however, courts permit and perhaps even encourage promises of leniency through reduced charges or lower sentences made by prosecuting attorneys that induce criminal defendants to admit their culpability and plead guilty.

Cf. Wright v. State, 307 Md. 552 , 515 A.2d 1157 (1986). The reasons that promises of leniency may render a confession inadmissible were discussed by the Supreme Court in Brady v. United States, 397 U.S. 742 , 90 S.Ct. 1463 , 25 L.Ed.2d 747 (1970): “[When] a confession [was] given by a defendant in custody, alone and unrepresented by counsel ... even a mild promise of leniency was deemed sufficient to bar the confession ... because defendants at such times are too sensitive to inducement and the possible impact on them too great to ignore and too difficult to assess.” Id. at 754 , 90 S.Ct. at 1472 , 25 L.Ed.2d at 759 . In Arizona v. Fulminante, — U.S. -, 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991), the Supreme Court made it clear that constitutional voluntariness does not require that all promises, threats, or inducements render a confession involuntary; instead, the federal constitution requires only that courts consider promises, threats, or inducements as part of the totality of the circumstances that courts must look at to determine voluntariness.

In Law of Confessions, the authors observed that state courts developed a per se rule of exclusion to apply when the following elements were met in cases involving promises of leniency or immunity: “1. Promise of benefit or advantage. ⁵⁰⁶ 2. Made by a person of official or apparent official authority. 3. The suspect would not have confessed but/for the promise. 4.

The suspect’s conclusion that he had received an offer was objectively reasonable.” Law of Confessions § 1.12, at 23-24. In the 1991 supplement to their work, however, they note that there is “a pronounced trend away from” per se exclusion and “toward a totality of the circumstances approach.” Id. § 1:12, at 13 (1991 Cum.Supp.). McCormick also notes that judicial rejection of the per se analysis in favor of a totality of the circumstances approach has increased the need for determining the impact of promises on particular defendants in particular interrogations. 1 McCormick § 154, at