Souffie v. State

Lowe, J., delivered the opinion of the Court. Diane Marie Souffle was convicted by a jury in the Circuit Court for Caroline County of second degree murder, robbery, robbery with a deadly weapon, use of a handgun in the commission of a felony, and battery. She was found not guilty of felony murder, assault and transporting a handgun. Because the jury could not agree on first degree murder, the trial judge declared a "mistrial” as to that count.

The victim was a young man who (while driving a van) picked up appellant and her friend Pamela Brooks, with whom appellant was hitchhiking. The three became better acquainted during ⁵⁴⁹ their rambling wanderlust when appellant and the victim had sexual intercourse in the back of the van; but their relationship deteriorated after appellant and her friend each shot the victim in the head with a derringer carried by Brooks. Appellant takes issue with the State’s contention that the intercourse was consensual and the murder motivated by robbery, arguing that the content of one of her statements to the police generated a self-defense issue because she indicated that she had shot the victim after he had raped her. I Predominant and preliminary among the eleven issues raised by appellant is the admissibility of the pretrial statements which she made to the police in the early morning hours following her arrest.

She contends that there was no probable cause for her arrest, after which the statements were elicited (see Ryon v. State, 29 Md. App. 62, 71-72 (1975), aff’d, 278 Md. 302 (1976)), and that the statements were taken in violation of her Miranda 1 rights as explicated in Rhode Island v. Innis, 446 U.S. 291 (1980) and in Bryant v. State, 49 Md. App. 272 (1981). Because our independent review of the record satisfies us that the police had abundant, if not overwhelming, probable cause to obtain the warrant for the arrest of appellant, we need not address the criteria of admissibility set forth in Ryon, supra, for a statement given while in custody as the result of an improper arrest. During our extensive review, however, we were assured that even those criteria would have been satisfied had the State lacked probable cause to arrest. The quantity of information contained in the record is so extensive that to set it out in what will be an overly long opinion would distract from the impact of the narrower legal issues raised by appellant and serve no purpose sufficient to offset that distraction.

The second half of the bifurcated confession-suppression issue is one recently addressed by the Supreme Court, the Court of Appeals and ourselves. Seemingly, such architects would provide a carefully constructed legal foundation; but ⁵⁵⁰ regrettably, we have left cracks in the floor which must be filled or fallen through on a case by case basis. Vines v. State, 285 Md. 369, 376 (1979). Perhaps because the appellate courts (including the Supreme Court) have been so involved with the judicial dissection and legal definition of a single Miranda sentence, we sometimes overlook the fact that before the legal formulae can be applied, a factual determination must be provided against which the formulae may be used as a measure.

Because even a single witness’s testimony may be subject to different interpretations, appellate judges must defer to their trial level brethren whose determinations arise from personal observations, voice inflections, nuances and physical reactions to examination and cross-examination. Thus, when determining on appeal whether the facts constitute a custodial interrogation, we must accept the trial judge’s conclusions unless the record indicates a clear interpretive error. Md. Rule 1086. An example of such clear error was manifest in Bryant v. State, supra, although we addressed the error there . as indicative of a legal misunderstanding by the trial judge, rather than a clearly erroneous factual determination.

Despite a "markedly” different version of what occurred as related by appellants in that case, id. at 281, we looked only at the officer’s testimony (most favorable to the State) and still found his conduct — however one interpreted his testimony — to have been an interrogative "ploy”. Id. at 283. "When Bryant exercised his right to have counsel present, all interrogation should have ceased. Instead, it was continued by the officer’s using the ploy of keeping him in the same room with [codefendant] Ham, while Ham wrote a statement and also of taking Bryant into a room where the other accused was making a statement.

Such action on the part of the police was obviously calculated to underpin the detective’s statement to Bryant that the accomplices had confessed. Patently, the detective was endeavoring to cause Bryant to retreat from the Miranda fortress and to ⁵⁵¹ surrender his will to the officer because the battle was lost anyhow. It is precisely that type of 'persuasion,’ duress, coercion, or intimidation that is forbidden by Miranda and Edwards [v. Arizona, 451 U.S. 477 , 68 L.Ed.2d 378 (1981)].” —the first statement — Appellant in this case attempts to draw a factual analogy with Bryant , hoping to obtain a similar result. Between her arrest and her first statement, however, she was admittedly provided repeated Miranda warnings.

She did not invoke a right to counsel nor did she indicate a desire to remain silent. On the contrary, according to the testimony of Trooper Samuel Pierce, which appellant summarizes in her brief, she "indicated she would like to tell what happened, however, she had been talking with Mr. Ball’s attorney, Gene Herman, and he advised her that she didn’t have to talk if she didn’t want to.” 2 Appellant was arrested at the residence of Robert Ball, whose attorney she telephoned before she was taken to the police station. The attorney, Gene Herman, offered the above gratuitous advice even before the police did so in a more formal manner. The attorney subsequently called the police station and explained to Trooper Pierce that he would not be able to represent appellant because he was a friend of the victim’s family.

Because of appellant’s ambivalence between her desire to speak and Herman’s advice, the officer informed her of Herman’s call and explained that "she would have to take the advice he gave her as just that, advice, and that the final decision whether or not to speak with us still rested with her.” 3 ⁵⁵² Trooper Pierce further stated that: "After that, I just left her with that thought and continued on explaining, in detail the charges and the status of the investigation we had developed, who the information had come from, the implications that were laid out in the statements from Brooks, Randall Brooks and Bill Campbell.” ⁵⁵³ Those implications must have been disconcerting. Appellant became nauseous, hurried to the bathroom and returned fifteen minutes later, at which time she "blurted” (according to the State) that "she had been with the Waddell boy, or with the boy, and that he had raped her and that she had shot him.” Appellant’s reliance upon Bryant (which relied upon Edwards v. Arizona, supra) is totally misplaced. Both Bryant and Edwards relate to who instituted a reinterrogation after the fifth amendment right identified in Miranda (to have counsel present at any custodial interrogation) had been invoked. Rhode Island v. Innis, supra, also mentioned in Bryant , is somewhat more on target, but that, too, misses the mark.

Innis dealt with what Miranda meant by "interrogation”, or its "functional equivalent” which may consist of any "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301 . See generally Leuschner v. State, 49 Md. App. 490 (1981). But it does not appear at that juncture of this case, that it was yet necessary to decide who had initiated a phase of an interrogation (Edwards) or even if there was an interrogation (Innis). Both of these refinements presuppose that an individual has indicated in some manner, at some time prior to or during questioning, that she wished to remain silent, at least until she was provided counsel.

It is only then that an interrogation must cease. Miranda, supra at 473-474. At no time prior to her first statement did appellant, in any manner, indicate her desire to remain silent. At best she equivocated, explaining her ambivalence because of the advice of her affectionado’s attorney.

The questioning officer appears to have taken her remark not as a request that the interrogation cease, but merely as a passing comment. See, e.g., Frazier v. Cupp, 394 U.S. 731, 739 (1969). The information conveyed regarding his representative status and the admonition that appellant must herself decide whether to speak did not convert the subsequent remarks into a "product of compulsion, subtle or otherwise”, such as to overcome ⁵⁵⁴ her "free choice”, in producing a statement even if "the privilege [to remain silent] ha[d] been once invoked.” Miranda, supra at 473-474; and see Frazier, supra at 739 . The officer testified that she had not only indicated a desire to tell what happened, but he further stated that if she had ever told him that she did not want to talk to him, the interview would have ended.

She did not contradict that — she did not even testify at the suppression hearing. The officer is undoubtedly whom the judge believed and with nothing to weigh against that testimony, we cannot say that the judge was in error. Absent an invocation of the Miranda rights, we must determine, however, whether appellant had waived them, since there was no'express written or spoken waiver. While we are admonished in Miranda that waiver may not be presumed from a silent record, id. at 475, after more than a decade of experience, the Supreme Court has explained that the heavy burden of proving waiver need not be restricted to an express waiver by a defendant but may be inferred from the evidence of the circumstances of the interrogation.

In North Carolina v. Butler, 441 U.S. 369 (1979), the Court said: "That [waiver may not be inferred by a silent record] does not mean that the defendant’s silence, coupled with an understanding of his rights and a course of conduct indicating waiver, may never support a conclusion that a defendant has waived his rights. The courts must presume that a defendant did not waive his rights; the prosecution’s burden is great; but in at least some cases waiver can be clearly inferred from the actions and words of the person interrogated.” Id. at 373 . See also Leuschner v. State, 45 Md. App. 323, 329 , cert. denied, 288 Md. 738 (1980), vacated, 451 U.S. 1014 , 69 L.Ed.2d 385 (1981). Here the uncontradicted facts show that appellant indicated a desire to give a statement, hesitating only because of advice by one who was not — and declined to become — her lawyer. ⁵⁵⁵ "Q Well, when she told — in other words, she told you, when you read her her rights, that she had talked to a lawyer and that lawyer had told her she didn’t have to say anything, is that correct?

A That’s correct. Q And did she tell you that she wanted to go along with that? A She told me she wanted to tell me her version.” That the officer, at this preliminary stage of arrest, continued to explain the nature of the charges and the basis for her arrest is not, under the circumstances, indicative of an interrogation. The officer left the accused with the thought that she must decide whether to waive or invoke the Miranda rights.

She was then provided the opportunity to leave the room, presumably to recover from a wave of nausea and to reflect upon her dilemma. Upon her return, without urging or solicitation by the officer, she immediately and voluntarily issued the first oral statement. Here, as in Butler and Leuschner , both supra, the words and actions of the appellant clearly implied a knowing and intelligent waiver of the rights of which she was admittedly advised. — the second, more damning, statement — It is factually significant, we believe, that following this "blurted” first statement, appellant was visited briefly by her codefendant, Pamela Brooks, after which appellant asked, and was permitted, to return to the detention cell and rest. After about an hour the officer went to appellant’s cell and asked if she was ready to "continue” her statement.

She indicated that she was, and the officer repeated the Miranda warnings. Twenty minutes later as the officer again repeated the Miranda warnings, appellant indicated that she did not want to make any statement "at this time”, saying "I’m confused at the moment. I want some time to think about it.” The officer terminated his questioning of her immediately and returned her to the detention cell again, providing her the time requested "to think”. While this con ⁵⁵⁶ duct gave credence to the officer’s former declaration that he would have terminated his questioning if appellant had so indicated, what subsequently transpired again raises the ghost of Innis and Edwards.

After allowing appellant about an hour’s contemplation, at about 5:30 a.m., the officer decided to process appellant for transfer to the county jail. During the course of processing, the officer told her that Brooks had made a statement resulting in Brooks’ charges having been reduced to obstruction of justice. He also told appellant that Brooks had implicated her in the murder and that appellant was "the only person being charged with first degree murder.” Appellant became "rather angry” and, stating that she wanted to give a statement, she again asked for time "to get her thoughts together”. The officer returned her to her cell where she remained for approximately forty-five minutes.

At about 6:30 a.m. the officer again brought appellant out of the cell and asked if she was ready to give the statement. She replied in the affirmative, was again read her Miranda rights and replied: "I want to tell you what happened. I don’t want you writing anything. I just want to tell you what happened.” Appellant did just that for approximately an hour and a half.

The officer once again repeated the Miranda warnings (for at least the fifth time), after which appellant gave him a written statement. In her brief, appellant is primarily preoccupied with whether the information given to her by the officer about Brooks’ alleged "deal,” which elicited the second statement, was an "interrogation” as defined by Innis . Because that interrogative device receives frequent use among investigators, it should be addressed. It is not altogether dispositive, however, because this argument also presupposes an invocation of the right to remain silent or to have counsel present.

The officer’s recitation obviously was intended to elicit ⁵⁵⁷ whatever facts could be jarred loose by a codefendant’s apparent cop-out in exchange for leniency. After already having outlined the status of the case and the basis for the charge upon arrest, surely no factfinder, however naive, could believe that a police officer discloses step-by-step investigatory matter discovered in a murder case to a suspect beneficently to encourage her to decide to invoke her Miranda rights, as conversation for the amusement of the accused, or even as casual gossip. The purpose was to "induce disclosures” and no other inference is reasonably suggested. In fact, the very contrary is reflected in the accused’s transcribed statement, which the recital elicited.

"Q. Why did you decide to tell this to Trooper Pierce? A. Because after asking him questions it seemed like it couldn’t get any worse. Just being quiet wouldn’t help any everybody else was giving statements. It seemed only fair that I tell my side of it.” We have addressed this issue because the attorney general reminds us of our prior discussions of the same practice in Leuschner v. State, 41 Md. App. 423 , cert. denied, 444 U.S. 933 (1979); Vines v. State, 40 Md. App. 658 (1978), aff'd, 288 Md. 361 (1979); Cummings v. State, 27 Md. App. 361 , cert. denied, 276 Md. 740 (1975); Howell v. State, 5 Md. App. 337 (1968), cert. denied, 253 Md. 734 , cert. denied, 396 U.S. 907 (1969).

Each of these cases involved statements or conduct of the police conveyed to the accused with the apparent, if not obvious, purpose of showing the futility of continued silence after a Miranda election was conveyed to the police. In each there is a holding or expression that: "Appellant’s response to such police information was not the product of an interrogation, either direct or subtle, but was more in the nature of volunteered information.” Howell, supra at 338-339 . In Howell , the accused was informed that the person accused ⁵⁵⁸ with him had admitted Howell’s participation in the burglary. In Fellows, appellant was told that his statement did not coincide with other police information; we cited Howell for the principle that the accused’s response that "[t]his time I’ll tell you the truth” was not the product of interrogation either subtle or direct, but more in the nature of volunteered information.

In Cummings , the accused did not inculpate himself in direct response to formal questions but "gratuitously” offered an inculpatory parting comment after signing a more innocuous formal statement. There too, we relied on Howell (among others), for the proposition that the response was in the nature of volunteered information. Similarly in Humphrey v. State, 39 Md. App. 484, 491 , cert. denied, 283 Md. 733 (1978), which was not included in the attorney general’s list, we held that a police officer telling an accused that he had "just found the gun” after the accused had invoked his right to silence was not an interrogation. Then, in Vines we stretched the Howell philosophy a little farther, holding that a police officer’s exhibition of contraband seized from appellant’s house did not constitute an interrogation, despite the officer’s admission that it was intended to invoke an incriminating response.

Id. at 668-669, Lowe, J., dissenting. When the Court of Appeals reviewed Vines v. State in 285 Md. 369 (1979), it elected to address the question as "psychological coercion,” treating it primarily as a fourth amendment issue of voluntariness in the traditional sense. It did not avoid the Miranda (fifth amendment) question entirely, however, holding, "that in the circumstances of this case, there was no 'interrogation’ within the meaning of Miranda to invoke its application.” Id. at 382 . Significantly, none of these cases were addressed in the light of Rhode Island v. Innis, 446 U.S. 291 (1980), which had not yet been decided.

Innis exclusively addressed interrogation as conceptualized in Miranda explaining that ⁵⁵⁹ " 'Interrogation’, as conceptualized in the Miranda opinion, must reflect a measure of compulsion above and beyond that inherent in custody itself.” But that non sequitur helps very little. In fact when viewed against the case’s conclusion, it adds to our quandary rather than to our elucidation. Between that platitude and the peculiar result in Innis , however, the Court did provide some helpful guidelines which may be summarized in a single sentence from that case. "We conclude that the Miranda safeguards come into play whenever a person in custody is subject to either express questioning or its functional equivalent.” Id. at 300-301 .

Prong one — express questioning — is self-evident, and not the problem we presently face. The only "express questioning” ("are you ready to continue with your statement”) was ended promptly whenever appellant indicated, albeit equivocally and temporarily, that she wished to terminate the inquiry. The applicable issue here is whether the officer’s narrative concerning Pamela Brooks was the "functional equivalent” of an interrogation. The Supreme Court explained that the "functional equivalent” of an interrogation was "any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.” Id. at 301 .

Cautioning that police surely cannot be held accountable for the unforeseen results of their interrogations, the Court made clear its holding that: "A practice that the police should know is reasonably likely to evoke an incriminating response from a suspect thus amounts to interrogation.” Id. ⁵⁶⁰ Although Innis suggests that we focus primarily upon the perceptions of the suspect to make that determination, it acknowledges the relevancy of police interest as well. "In Brewer v Williams, 430 US 387, 398-399 , 51 L Ed 2d 424 , 97 S Ct 1232 , the Court applied the 'deliberately elicited’ standard in determining