Reynolds v. State

²⁰⁰ MOYLAN, Judge. The sets of rules circumscribing the admissibility of incriminating statements are many. They are, moreover, distinct. This appeal requires us to sort them out and to look at several of them in appropriate isolation.

The appellant, Frederick William Reynolds, Jr., was convicted by a Carroll County jury, presided over by Judge Donald J. Gilmore, of 1) second-degree rape, 2) a second-degree sexual offense, 3) assault with intent to rape, 4) assault with intent to commit a second-degree sexual offense, and 5) incest. Upon this appeal, he raises the single contention that his various incriminating admissions and confessions should have been suppressed because they were obtained in violation of the privilege against compelled self-incrimination of the Fifth Amendment and the due process clause of the Fourteenth Amendment of the Federal Constitution and of their Maryland counterparts, Articles 22 and 23 of the Maryland Declaration of Rights. Analytically, this generic contention splits into two doctrinally distinct situations. Successive incriminating conversations over an extended period of time fell into one or the other of two categories: 1) conversations with a psychological counsellor, Marcia Meyer, at the Family Children’s Service Center; and 2) subsequent conversations with Corporal Richard Norman of the Maryland State Police.

The Factual Background The unfolding of this case did have an unusual twist. Although ample corroboration of the corpora delicti was produced at trial, the very occurrence of the crimes, quite aside from any evidence of criminal agency, only came to light when, the appellant himself revealed them, first to a psychological counsellor and then to police authorities. The victims of the appellant’s sexual abuses, perpetrated at least twelve years earlier, were his now-adult daughters, no longer living at home. ²⁰¹ The appellant is a 56-year-old Carroll County farmer with a high school education. At a family gathering on Mother’s Day, 1989, his family collectively confronted him with having sexually abused his four daughters when they were children.

At his family’s urging, he sought counsel-ling, first with the family minister. His minister, sensing the dimensions of the problem, in turn referred him to Marcia Meyer at the Family Children’s Service Center in Westminster. When the appellant, accompanied by his wife, first visited Ms. Meyer at the Westminster Center, he was told that in order to obtain counselling, he would have to sign a form consenting to the Center’s notification of the police of any incriminating evidence regarding child abuse. Ms. Meyer fully advised the appellant that he was not compelled to sign the form and that he was not required to receive counselling at the Center.

Ms. Meyer was complying with the command of Md.Fam.Law Code Ann. § 5-704, which requires all health practitioners, human services workers, and counsellors, among others, to notify an appropriate law enforcement agency if they have reason to believe that a child has been subject to abuse. Initially leery about signing the consent form, the appellant called the State’s Attorney’s Office for advice and spoke to Assistant State’s Attorney Kathi Hill. Ms. Hill gave him no assurances that he would not be prosecuted. The prosecutor, fielding an unsolicited and unanticipated telephone call, obviously tried to be both helpful but cautiously candid, “Well, you should go and take your counsel-ling now, that’s the first thing.

It’s been a long time since this occurred, but I cannot give you advice because ... it may, in the future ... I’m a prosecutor, I prosecute these types of cases.” The appellant then decided, in the presence of his wife, to sign the consent form. He did so because “without signing that form, I could not get counseling at that place.” The appellant testified that he assumed that other agencies would have a similar procedure (as was indeed the case). ²⁰² The appellant began a series of counseling sessions relating to the sexual abuse of his four daughters. This collective incrimination over a series of counseling sessions was introduced at the appellant’s trial and is the initial object of his present challenge.

An Ostensible Counsellor-Patient Privilege: Neither Available Nor Claimed The appellant argues that, as a result of family pressures upon him and inherent pressures within him, he desperately needed counseling. He argues further that that need, somehow coupled with Ms. Meyer’s inability to extend counseling without his signing of the waiver form, rendered his various admissions and confessions involuntary. The appellant’s reasoning in this regard is a bit blurred. In no event were his confessions themselves involuntary.

By his own acknowledgement, he needed to confess and wanted to confess. The confessions were an indispensable predicate to and part of the psychological catharsis and further treatment that he so affirmatively and urgently sought. In framing the issue, the appellant appears to have things doctrinally reversed, as if viewing events in a mirror image. The threat of criminal exposure to which he objects was not a pressure to confess; it was the precise opposite, a pressure not to confess.

Notwithstanding that pressure, the appellant successfully resisted it and confessed anyway. Any option that was arguably burdened was not his choice to remain silent but his choice to speak. In reframing the complaint for the appellant, we conclude that he might have argued that what was involuntary was not the confession per se but rather the waiver of an ostensible counsellor-patient privilege. At most, what was involuntary was not the confession but only the waiver of its confidentiality.

The appellant, however, makes no such argument. He never sought to establish the existence of such a privilege. ²⁰³ Indeed, he could not have, for there is no such privilege. Save only the privilege against compelled self-incrimination, all other privileges are creatures either of the common law or of statute and are subject to legislative control. The provisions of Md.Fam.Law Code Ann. § 5-704 explicitly spell out that there is no privilege against a counsellor’s legally required disclosure of the fact of child abuse to law enforcement officials.

For even more basic reasons, however, the claim of inadmissibility based upon involuntariness against Ms. Meyer and the Family Children’s Service Center must fail. No State Action At the most fundamental level, this aspect of the appellant’s argument (involuntariness of either the confession or the waiver of its confidentiality) founders upon the shoals of the fact that the Westminster Family Children’s Service Center is a private facility and not a State agency. The appellant argues a violation of the Fifth Amendment privilege against compelled self-incrimination made applicable to the states through the due process clause of the Fourteenth Amendment, as well as the Maryland constitutional counterparts which have consistently been construed in pari materia with their federal analogues. As the modifying adjective “constitutional” necessarily implies, the constitutional law (federal or state) is concerned with the constituting of government, with spelling out those things that government may do and that government may not do.

It is not a code of conduct to private individuals or private corporations. When governmental action is not involved, constitutional law is not involved. Fully dispositive in this regard is the Supreme Court’s decision in Colorado v. Connelly, 479 U.S. 157 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986). In that case, the defendant claimed both that a confession was involuntary and that a waiver of Miranda rights was involuntary.

Everyone agreed that the agents of government had done nothing improper. “The Colorado trial court ... found that the ²⁰⁴ police committed no wrongful acts, and that finding has been neither challenged by the respondent nor disturbed by the Supreme Court of Colorado.” 479 U.S. at 165 , 107 S.Ct. at 521 . The coercing agent was, according to the defendant, the “Voice of God” and, according to his psychiatrist, a “command hallucination,” confronting the defendant with the stark choice between confession and suicide. The defendant chose the former. In pointing out that the absence of any state action thereby rendered constitutional law inapplicable, the Supreme Court observed, at 479 U.S. 165 , at 107 S.Ct. 521 : “Our ‘involuntary confession’ jurisprudence is entirely consistent with the settled law requiring some sort of ‘state action’ to support a claim of violation of the Due Process Clause of the Fourteenth Amendment.” The Fifth Amendment specifically and the Bill of Rights generally are limitations or prohibitions directed at government as government.

When the Fifth Amendment provides that “No person shall be compelled in any criminal case to be a witness against himself,” it contemplates governmental compulsion and not private compulsion. The Supreme Court went on, at 479 U.S. 165 -166, at 107 S.Ct. 521 : “The difficulty with the approach of the Supreme Court of Colorado is that it fails to recognize the essential link between coercive activity of the State, on one hand, and a resulting confession by a defendant, on the other. The flaw in respondent’s constitutional argument is that it would expand our previous line of ‘voluntariness’ cases into a far-ranging requirement that courts must divine a defendant’s motivation for speaking or acting as he did even though there be no claim that governmental conduct coerced his decision.” Even if we were to assume that the appellant’s confessions were somehow involuntary (a conclusion not remotely suggested by the evidence in this case), no constitutional right would be implicated. There is no constitutional right not to give an involuntary confession; there is only a constitutional right not to be compelled to do so by govern ²⁰⁵ ment.

The Supreme Court is again illuminating, at 479 U.S. 166 , at 107 S.Ct. 521 : “Moreover, suppressing respondent’s statements would serve absolutely no purpose in enforcing constitutional guarantees. The purpose of excluding evidence seized in violation of the Constitution is to substantially deter future violations of the Constitution____ Only if we were to establish a brand new constitutional right — the right of a criminal defendant to confess to his crime only when totally rational and properly motivated — could respondent’s present claim be sustained.” (citation omitted). Nothing we say herein should be taken to suggest that a privately coerced, as opposed to governmentally coerced, confession could not be inadmissible but only that it would be so within a different frame of analysis. Had, hypothetically, Ms. Meyer and her companions at the Family Children’s Service Center stretched the appellant upon the rack, his resultant confession might have been inadmissible but it would not have been unconstitutional. “The most outrageous behavior by a private party seeking to secure evidence against a defendant does not make that evidence inadmissible under the Due Process Clause.” 479 U.S. at 166 , 107 S.Ct. at 521 .

Such inadmissibility, however, would fall within the province of evidentiary law, concerned as it is with the evidentiary trustworthiness or competence of a tortured confession, and not within the province of constitutional law, concerned as it is with governmental behavior. The clear demarcation between evidentiary unreliability and constitutional impropriety was spelled out by the Supreme Court, at 479 U.S. 166 -167, at 107 S.Ct. 521 -522: “Respondent would now have us require sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State. We think the Constitution rightly leaves this sort of inquiry to be resolved by state laws governing the admission of evi ²⁰⁶ dence and erects no standard of its own in this area. A statement rendered by one in the condition of respondent might be proved to be quite unreliable, but this is a matter to be governed by the evidentiary laws of the forum ... and not by the Due Process Clause of the Fourteenth Amendment. ‘The aim of the requirement of due process is not to exclude presumptively false evidence, but to prevent fundamental unfairness in the use ' of evidence, whether true or false.’ ” (citation omitted).

There is no suggestion in this case that the confessions were in any way inherently untrustworthy or incompetent in the evidentiary sense. Certainly no claim was made in that regard. The Introduction of State Action The element of State action first appeared in this case on July 11, 1989. Ms. Meyer had contacted the State’s Attorney’s Office about the appellant’s acknowledged sexual abuse of his four daughters.

The State’s Attorney’s Office had, in turn, notified the Maryland State Police and the case was assigned to Corporal Richard E. Norman. Corporal Norman indicated to Ms. Meyer that he would like to speak with the appellant and Ms. Meyer undertook to arrange the meeting. The appellant agreed to meet with Corporal Norman at the Family Childern’s Service Center in the presence of Ms. Meyer. That meeting occurred on July 11, 1989.

Initially, Ms. Meyer informed the appellant that he did not have to speak to Corporal Norman if he did not wish to do so. It was only after he agreed that Ms. Meyer introduced the two. Corporal Norman reiterated that the appellant did not have to talk to him and that he would leave at any time the appellant wished. The appellant later testified that he “jokingly” asked Corporal Norman to read him his constitutional rights and that Corporal Norman did so, reading from a printed card. ²⁰⁷ Until that interview, Corporal Norman knew nothing about the offenses.

It was the appellant who supplied him with the names and addresses of his daughters. The appellant further suggested that Corporal Norman contact the daughters to find out exactly what had happened. The thrust of the appellant’s complaint does not concern itself significantly with this first meeting or with the incriminating admissions made in the course of it. It is rather the second meeting, two months later on September 6, that draws the appellant’s fire.

During the intervening months, Corporal Norman had continued his investigation, speaking at length with two of the appellant’s daughters. After interviewing one of those daughters for several hours on September 6, Corporal Norman went to the appellant’s home at a little after 4 P.M. and asked to speak to him. Corporal Norman informed the appellant that since their last interview, he had spoken to two of the daughters and received their versions of the abuses. When Corporal Norman asked whether he could speak to the appellant again about these events, the appellant responded, “Fine,” and invited the Corporal into his house.

Corporal Norman informed the appellant that he was not under arrest, that he did not have to talk with him, and that if the appellant wished, the Corporal would leave. This second interview was tape-recorded. The interview lasted a little over an hour. In the course of it, the appellant repeated his version of the earlier acts of abuse.

At the conclusion of the interview, Corporal Norman left. The appellant was not arrested until two days later, on September 8. Miranda Inapplicability: Absence of Custody The appellant complains that prior to this second interview at his home on September 6, Corporal Norman did not give him the Miranda warnings. It is unnecessary to analyze 1) the significance of those advisements that Corpo ²⁰⁸ ral Norman did give the appellant on September 6, or 2) the significance of the fact that Miranda warnings, whether required or not, had been fully given the appellant prior to his first, interview on July 11.

The short answer with respect to the September 6 interview is that Miranda was inapplicable. Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), prescribed a set of warnings and advisements of rights that the police under certain circumstances are required to give to a suspect. The Miranda rule is not itself constitutional. The so-called Miranda catechism is rather a judicially devised implementing device, specifically designed to safeguard the Fifth Amendment privilege against compelled self-incrimination.

United States v. Mandujano, 425 U.S. 564, 579 , 96 S.Ct. 1768, 1778 , 48 L.Ed.2d 212, 224 (1976), described precisely Miranda’s identity with the privilege and their combined function of negating the inherent “compulsion” of the custodial environment: “Miranda addressed extrajudicial confessions or admissions procured in a hostile, unfamiliar environment which lacked procedural safeguards. The decision expressly rested on the privilege against compulsory self-incrimination; the prescribed warnings sought to negate the ‘compulsion’ thought to be inherent in police station interrogation.” (emphasis supplied). When, therefore, the threat of compulsion and the antidotal Fifth Amendment privilege are involved in an extrajudicial police-citizen confrontation, Miranda’s implementing rule is ipso facto involved as well. Absent that involvement of the Fifth Amendment privilege, based upon the inherent threat of compulsion, Miranda is self-evidently inapplicable.

The scope of an implementing rule can be no broader than the scope of the undergirding constitutional protection being implemented. The heart of the Fifth Amendment privilege is the protection of a suspect from actual governmental compul ²⁰⁹ sion or coercion to incriminate oneself. To determine when the threat of governmental compulsion is at work in an investigative setting, Miranda announced a bright line formula that the combination of custody and interrogation will be deemed to be presumptively coercive. It is, therefore, custodial interrogation that gives rise to the presumption of compulsion and brings into play the therapeutic, implementing rule of Miranda .

Absent the combination of both custody and interrogation, there is no presumption of compulsion and there is, therefore, no call for Miranda’s implementing countermeasures. Of the two necessary conditions for Miranda applicability, the one at issue with respect to the September 6 interview is that of custody. “Custody” ordinarily contemplates that a suspect will be under arrest, frequently in a jailhouse or station house setting. The appellant seeks solace almost exclusively in the case of Orozco v. Texas, 394 U.S. 324 , 89 S.Ct. 1095 , 22 L.Ed.2d 311 (1969). There, the Supreme Court found “custody” in the setting of the suspect’s boardinghouse.

The circumstances were, however, so extreme as to make the case readily distinguishable. In investigating a murder, four armed police officers were admitted to Orozco’s boardinghouse by an unidentified woman and then burst, unannounced, into his bedroom at 4 A.M. He was immediately interrogated, even as he came awake. The police testified that he was “under arrest” at the moment the interrogation began. Following the interrogation, he was taken to the police station under arrest.

In countering Texas’ claim that Miranda was not applicable because Orozco had been “interrogated on his own bed, in familiar surroundings,” the Supreme Court pointed out that Miranda “warnings were required when the person being interrogated was ‘in custody at the station or otherwise deprived of his freedom of action in any significant way.’ ” (emphasis in original). There is nothing in the circumstances of the September 6 interrogation of the appellant at the appellant’s home, during which and after which the appellant was not under arrest, that sug ²¹⁰ gests that he was deprived of his freedom of action in any significant way. Indeed, in Berkemer v. McCarty, 468 U.S. 420, 437 , 104 S.Ct. 3138, 3148-3149 , 82 L.Ed.2d 317, 333 (1984) the Supreme Court focused explicitly on the phrase from Miranda “otherwise deprived of his freedom of action in any significant way”: “However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated.

Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights.” The Berkemer opinion reminded us that the custodial setting dealt with by Miranda —a setting severe enough to give rise to a presumption of compulsion — was one wherein a suspect was held “incommunicado” and “in a police dominated atmosphere.” It then went on to point out that even a legally authorized detention or seizure of the person in the context of a traffic stop or even a Terry stop did not amount to custody within the contemplation of Miranda . Critical distinguishing factors were 1) that even the legally compelled stop would only last a little while and then the detainee would be free to go upon his way and 2) that the stop was frequently in public or in the presence of friends and relatives and was by no means the “incommunicado” situation calling for the strong antidote of Miranda . An illuminating contrast may be made between the September 6 interview of