Smith v. State

LEAHY, J. During a post-arrest interview, Appellant Gregory Emilie Smith waived his Miranda rights and then described multiple occasions on which he engaged in “consensual” anal intercourse with four-year-old K.N. 1 Before his trial, Appellant moved to suppress this confession, claiming that it was involuntary and obtained in violation of Maryland’s common law rule prohibiting law enforcement officers from promising or implying that a suspect will gain the advantage of non-prosecution or some other form of assistance in exchange for a confession. In denying this motion, the Circuit Court for Montgomery County concluded that no reasonable layperson would believe that they would be afforded leniency upon confessing to “consensual” anal sex with a four-year-old. At trial, Appellant’s recorded confession was played for the jury, and on May 3, 2012, the jury convicted Appellant of one count of sexual abuse of a minor, two counts of first-degree sex offense, and one count of second-degree child abuse. In his timely appeal, Appellant presents only one question: “Did the lower court err in denying Appellant’s motion to suppress?” ²⁶² We affirm.

We find that the law enforcement officers made no explicit promises, and that a reasonable layperson in Appellant’s position would not have inferred from the officers’ statements that he could gain the advantage of non-prosecution or leniency by confessing to “consensual” anal intercourse with a four-year old. See Hill v. State, 418 Md. 62, 77 , 12 A.3d 1193 (2011). I. A. The Interview Appellant was arrested on September 14, 2010, in the District of Columbia on an outstanding warrant. Detectives Michael Carin and Errol Birch of the Montgomery County Police went to the D.C. police station to interview Appellant.

The DVD recording of the interview shows Appellant wearing what appears to be sleepwear. He is not handcuffed, but one of his legs is restrained to a device attached to the floor. The interview room contains one desk and three chairs. Although the detectives are in plainclothes, it is unclear from the video whether the detectives were armed.

Both of the detectives, as well as Appellant, spoke in clear, calm voices throughout the interview, and there is no indication that Appellant was threatened in any way. The detectives introduced themselves as police officers, told Appellant that they wanted to interview him about K.N., and then read Appellant his rights pursuant to Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Appellant acknowledged that he understood his rights, agreed to speak with the detectives, and then initialed and signed the Advice of Rights Form. Appellant told the detectives that he was a computer programming student at Strayer University.

He also said he was not on any medications at that time, which was noted as 9:10 a.m. He confirmed that a “couple of years ago” he lived in an apartment on Georgia Avenue with Maria N. and her children, K.N. and D.N. ²⁶³ Detective Carin explained the allegations: “Okay. There’s no way to sugarcoat this, because the information that we have seems pretty bad, okay? Basically, she disclosed to her Mom ...

Okay. K.N. and D.N. were interviewed last week, and basically they were talking about ... you beat him up one day; and .. . you engaged K.N. in anal intercourse. Okay. That’s basically why we are here.” The detectives detailed K.N.’s accusations, including that Appellant engaged in this behavior on multiple occasions.

They also indicated they had an eyewitness. Detective Carin told Appellant that he and Detective Birch did not execute warrants or work on robbery cases, but they had to attend school to learn how to be more like social workers. He continued, “[O]ur main job isn’t to put cuffs on you and throw you in jail .... [o]ur goal is to get the counseling for her so she can become whole again.” In order to do that, he explained, they “have to have an understanding of what happened.” He then queried, “you and I know it wasn’t her fault, correct?” Appellant replied, “I don’t even know what you’re talking about. I never once put my hands on a little girl.” After Detective Carin stated that “the bottom line is you and I know it happened,” Appellant replied, “No, it didn’t.” Next the detective told Appellant that not only did they have an eyewitness, but that a doctor examined K.N. and “there’s damage to her [anus].” 2 Appellant responded, “I don’t care if it happened to her.

It wasn’t by me.” The detective then challenged Appellant’s story, relating that K.N. identified Appellant as the perpetrator; Maria talked about the time when Appellant beat up D.N.; there was a medical report; and a witness walked in on Appellant and K.N. The ²⁶⁴ detective stated, “you know exactly what I’m talking about,” Appellant replied, “No, I don’t. I really don’t.” It was at this point, approximately 18:24 minutes into the interview, when the discussion took a direction that is the subject of this appeal. Detective Birch took over questioning: You know, this is the one things that you got to understand, and I’m going to throw out another card to you, okay? When we do these cases, the most important thing is for you to stand up and be a man and accept your responsibility.

The problem we have is, when we get these cases — we get these cases every day. And a lot of these girls, depending on the age of the boys, we polygraph them. The part we had a problem with is she’s saying you forced her, you forced her. Force is a huge thing.

That’s the problem that I have, when someone says they were forced. Part of the polygraph that she passed was she did have anal intercourse with you. The part that she did not do well on is the force. This is the opportunity for you — if there was force, we have a problem; if there’s not force, then it’s consensual, and that’s when she get’s [sic] help.

Then we understand that she is not telling us the truth about that part. But sitting here, saying it didn’t happen with all these things here — It basically is going to be her story jamming you, and this is your opportunity, if it was not force, then you need to tell us, because what happens is you walk out of here, we’re going with the force. At 19:45 minutes into the interview, Detective Birch then made the following statements that are the primary focus of Appellant’s arguments: And you get that shit all the time, “I was raped and I was forced.” Well, you’re going to get in trouble for that. If it was consensual, that’s a whole different story.

That’s what we’re trying to figure out, is it force or was it consensual? And that’s what, and by sitting here and ²⁶⁵ saying, “I don’t know what happened to her,” you can do that, you can throw the dice on that table, see if you’re going to win this — you’re not going to win. We’re going to go forward on force. Here is the opportunity to tell us it was not force, it was consensual.

There’s a little difference in age and that’s just something that we got to deal with and she has to deal with, and she’s going to have to make better choices in the future. But the force part is what we’re hung up on. I’m going to tell you what. If she said it was consensual and she passed that, we wouldn’t come down here.

It took us two hours to get down here to talk to you, to give your side of the story. It took me two hours to get down here. If she said it was consensual and passed that polygraph, we wouldn’t have come down here. The force part is the one that we were concerned about.

Following this, and only 20:50 minutes into the interview, Appellant stated, “I never forced her to do anything.” Immediately thereafter, the following transpired: Detective Birch: Okay. Tell me what the consensual part of it was and we can roll out of this. If it’s consensual, then tell us it’s consensual. [Appellant]: It was consensual. Appellant then recounted details of having anal intercourse with K.N., claiming that “[i]t was her idea.” He stated that K.N. cried one time, and he stopped.

Appellant did not remember D.N. walking in on them. Appellant stated that the incidents began when K.N. was four or five years old and that there were four or five such encounters with K.N. over a six-month period. Detective Carin revealed that K.N. told the police that Appellant put a plastic bag over her head. Appellant responded that “[t]here was never a plastic bag,” and explained that he put a pillowcase over her head because “[s]he said she didn’t want to see anything.” ²⁶⁶ The detective also questioned Appellant about the incident regarding D.N. Appellant claimed that he and D.N. were “just roughhousing in the house and it was an accident.” Appellant admitted that he hit D.N. with an open hand, but maintained that it was accidental.

When asked about a reported injury to KN.’s ear, Appellant stated that he was chasing her “to be disciplined for something she did, and she ran into the wall.” He denied throwing her or smacking her, but he confirmed that KN.’s ear bled after this incident. Appellant denied that he engaged in oral sex with K.N., but admitted that he placed his finger in her vagina and her anus “[j]ust once or twice.” He further asserted that K.N. “always initiated” the encounters and that K.N. “came and got [him].” Appellant disclosed that after their encounters, he “told her not to tell anybody because people don’t understand.” Appellant agreed he would write an apology to K.N. After 32:29 minutes, the following dialogue was recorded: Detective Birch: Okay. Let me ask you this. Do you know what you did was wrong? [Appellant]: (No audible response.) Detective Birch: Do you know it was illegal? [Appellant]: (No audible response.) Detective Birch: Do you know it was illegal no matter whether it was consensual or not? [Appellant]: (No audible response.) Detective Birch: So really the bottom line is no matter whether she said, “Let me [f_] you,” doesn’t make a difference.

You’re still 100 percent wrong. You’re aware of that, correct? [Appellant]: (No audible response.) 3 ²⁶⁷ Appellant was then left alone to write the apology letter. The transcript of the interview then concluded approximately 33:40 minutes after it began. Thereafter, as shown on the DVD recording, about 43:20 minutes after the interview began, Detective Carin returned to the interview room, gave Appellant a bottle of water, and asked him to sign his apology.

Detective Carin asked Appellant to read his apology letter aloud, and he did so: Dear [K.N.]: I just wanted to say that I’m sorry for what I did to you. I don’t know why I didn’t just tell you no when I had the chance. If I could go back and change what I did, I would. Please know that none of this is your fault so don’t blame yourself for what happen [sic] because you didn’t anything wrong [sic].

Again I’m sorry and I hope you can put this behind you and live your life in peace. When Detective Carin asked Appellant if this letter was referring to the anal intercourse with K.N., Appellant responded, “right.” Appellant inquired about what would happen next, and the detective explained that he would be transported to D.C. Central Booking and that he was charged with second-degree sex offense, second-degree assault, and sex abuse of a minor as to K.N., and second-degree child abuse as to D.N. 4 Detective Carin also told Appellant that he could not take him back to Maryland and that there would be an extradition hearing at some point in D.C. After a few more clarifying questions, wherein Appellant maintained that he never put a plastic bag over K.N.’s head, Appellant was left alone, approximately 48:15 minutes after the interview began. B. The Suppression Hearing On March 9, 2012, the circuit court (the “suppression court”) held a hearing on Appellant’s Motion to Suppress. At the ²⁶⁸ outset, the parties stipulated that Detectives Carin and Birch had no contact with Appellant other than what was documented in the transcript and by the recording. 5 Neither Detective Carin nor Appellant testified at the hearing, although both were present.

Appellant’s counsel argued that his client’s confession was involuntary because the officers made a promise of leniency and his client relied on that improper inducement. Counsel offered as an improper inducement the following statement: “Okay. Tell me what the consensual part of it was and we can roll out of this.” The suppression court inquired, “how could it be that a reasonable person in the position of your client would have inferred from the detective’s statement that he could gain ... the advantage of non-prosecution or other form of assistance by, if it [sic] was having consensual sex with a 4-year-old?” The suppression court further queried, “objectively how could a layperson believe a 4-year-old could consent to anything?” Appellant maintained that the inquiry was simply whether the police promised him something, and whether he relied on that promise in making a statement. Appellant’s counsel asserted that “[h]e doesn’t have to know whether it’s illegal or not.” The State responded that Appellant was arrested, held in custody, advised of his Miranda rights, and then told what the allegations against him were before he made his confession.

It was not objectively reasonable for Appellant to believe that a four-year-old could consent to anal intercourse, or that by saying so, Appellant would gain any advantage. The State contended that the detective’s statement “... we can roll out of this” must be read in context. They had told Appellant they had traveled two hours to get his side of the story, so the detectives wanted to be done and roll out of there: ²⁶⁹ THE COURT: You’re saying what the detective meant, “All right, tell me it was consensual so I and my colleagues can go back to Montgomery County?” [THE STATE]: Not just what he meant, that’s what he said. “We will roll.” ... He didn’t say, “you will roll out of here.” The suppression court engaged in extensive discussion with counsel over application of the relevant Court of Appeals’ decisions to the facts presented, and ultimately denied the motion, explaining: My conclusion, taking the transcript at face value, I mean, I conclude that no reasonable layperson in the position of the defendant would have inferred from the detective’s statements that he could gain the advantage of non-prosecution or some other form of leniency in this context because no reasonable person would believe that one can lawfully, under any circumstances, have sex with a 4-year-old.

To me, that is the linchpin of the case. I could conjure other fact patterns, and I’ve discussed some of them with counsel, which could come down on one side of the ledger or the other side of the ledger, but, respectfully, not this one. On April 27, 2012, the suppression court held a hearing on Appellant’s motion to reconsider. Most of the argument concerned conflicting interpretations of Hill v. State, 418 Md. 62 , 12 A.3d 1193 (2011), beginning with the following inquiry by the suppression court: [COURT]: If it’s reasonable [under Hill ] on the one hand for someone to cough it up because they’re told, “If you give the 9-year-old an apology you won’t be prosecuted,” how different is that? [THE STATE]: Under Hill they are promising him an explicit benefit of, “We are not going to go forward,” Here, they never make that promise to [Appellant].

Never make that promise to [Appellant]. ²⁷⁰ The suppression court held the matter sub cuña and reconvened on April 80, 2012, the same day the jury was selected for trial. After permitting even further argument, the suppression court denied the motion for reconsideration. In so ruling, the court found that at the time of the interview, Appellant was indicted and under arrest, and that he was advised of and waived his Miranda rights. Paraphrasing the Court of Appeals in Hill , the court acknowledged that the question before it was “whether a reasonable layperson in the position of the defendant would have inferred from the detective’s statement that he could gain the advantage of non-prosecution or some other form of assistance.” The suppression court explained: I understand what was decided in Hill , but I think there are important ... factual differences between the Hill case and this case, some of which I’ve already recited, others of which are the nature of the detective’s statements and the circumstances under which they were made and the crimes at issue.

Here, one distinguishing feature I see is while it is certainly illegal to have consensual sex with a minor, it’s a different crime if that consensual sex was accompanied by force. The force elevates it to first degree. I’m not saying it makes it better or worse, but it’s different. So that is one legitimate area where the police were trying to find out what they had was whether it was a first degree offense or not a first degree offense, but that doesn’t mean it wasn’t an offense.[ 6 ] ²⁷¹ The court concluded by denying the motion, stating that it was “objectively unreasonable” for: [T]his defendant ... to have believed that if it was consensual: A, it would go away; B, he’d be released from D.C. jail; C, it wouldn’t be a crime.

It would be a crime. It’d be a different crime. It wouldn’t be a first degree crime, it wouldn’t [sic] be some other crime, second degree, third degree, but it’s still a crime. The notion that a reasonable person would or could believe that having consensual sex with a 4-year-old is not problem, or that if I just say it’s consensual not only, even if it all doesn’t go away it’s going to be materially better is a notion which I frankly think is absurd.

C. Trial and Disposition At Appellant’s trial, the State played the recorded statement for the jury, and on May 3, 2012, the jury ultimately convicted Appellant of one count of sexual abuse of a minor, two counts of first-degree sex offense, and one count of second-degree child abuse. 7 On January 31, 2013, the circuit court imposed the mandatory minimum sentence of 25 years without possibility of parole for both counts of first-degree sex offense, each to be served consecutively, a consecutive sentence of 25 years for sex abuse of a minor, and a concurrent sentence of 15 years for second-degree child abuse. Appellant filed a Notice of Appeal on February 12, 2013.

II

The sole issue on appeal is the voluntariness of Appellant’s custodial confession. Appellant contends that Detective Birch’s statements constituted an improper inducement and that Appellant relied on those statements in making the confession. The State counters that Appellant’s statement was voluntary for several reasons. First, unlike the accused in Hill , here Appellant was arrested, and only after he waived ²⁷² his Miranda rights and heard the allegations leveled against him did he volunteer that he had “consensual” intercourse with a child.

Second, the State argues that the detectives did not explicitly make a promise or convey an improper inducement to Appellant. And finally, the State contends that no reasonable layperson would believe that confessing to “consensual” anal intercourse with a four-year-old would not result in prosecution or that such a confession would result in the filing of a lesser charge. The issue of whether a confession is voluntary constitutes a mixed question of law and fact. Winder v. State, 362 Md. 275, 310 , 765 A.2d 97 (2001).

The Court of Appeals has explained this amalgam as follows: If the trial court determines that the statement was not made voluntarily, it will declare it inadmissible. That completely resolves the issue; it never becomes one for the jury. If, on the other hand, the court finds the statement voluntary, it will admit it and its voluntariness then becomes an issue which the jury must ultimately resolve. Hof v. State, 337 Md. 581, 605 , 655 A.2d 370 (1995) (internal citations omitted).

As a result, we review the court’s ultimate ruling on the issue of voluntariness de novo. Winder, 362 Md. at 310-11 , 765 A.2d 97 . We are limited to the facts presented at the suppression hearing, and we must view the “ ‘evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party.’ ” Lee v. State, 418 Md. 136, 148 , 12 A.3d 1238 (2011) (quoting Owens v. State, 399 Md. 388, 403 , 924 A.2d 1072 (2007)); see also Williams v. State, 212 Md.App. 396 , 401 n. 3, 69 A.3d 74 (2013) (“When we review a circuit court’s disposition of a motion to suppress, we look exclusively at the record of the suppression hearing, view the evidence in the light most favorable to the prevailing party on the motion, and defer to the fact findings of the suppression judge unless clearly erroneous; however, we review the ultimate question of constitutionality de novo.” (citing Walker v. State, 206 Md.App. 13, 22-23 , 47 A.3d 590 (2012))), cert. denied, 435 Md. 270 , 77 A.3d 1086 (2013). ²⁷³ A confession may be admitted against an accused only when it has been “determined that the confession was ‘(1) voluntary under Maryland non-constitutional law, (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights,[ 8 ] and (3) elicited in conformance with the mandates of Miranda.’ ” Ball v. State, 347 Md. 156, 173-74 , 699 A.2d 1170 (1997) (quoting Hof, 337 Md. at 597-98 , 655 A.2d 370 ), cert. denied, 522 U.S. 1082 , 118 S.Ct. 866 , 139 L.Ed.2d 763 (1998); accord Lee, 418 Md. at 158, 12 A.3d 1238 ; Knight v. State, 381 Md. 517, 531-32 , 850 A.2d 1179 (2004). Appellant challenges the voluntariness of his confession under Maryland common law.

The common law rule in Maryland is that “a confession is involuntary if it is the product of certain improper threats, promises, or inducements by the police.” Lee, 418 Md. at 161 , 12 A.3d 1238 (citing Knight, 381