State v. Conover

McAULIFFE, Judge. When an individual in custody requests an attorney, interrogation must cease until an attorney is present, unless the accused himself initiates further communication, exchanges, or conversations with the police. Edwards v. Arizona, 451 U.S. 477, 484-85 , 101 S.Ct. 1880, 1884-85 , 68 L.Ed.2d 378 (1981); Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Interrogation means not only express questioning, “but also ... 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.” Rhode Island v. Innis, 446 U.S. 291, 301 , 100 S.Ct. 1682, 1689-90 , 64 L.Ed.2d 297 (1980).

The question presented by this appeal is whether the actions of the police in reading a statement of charges to the Respondent, and handing to him copies of the charging document and the application upon which it was based, constituted, under the circumstances here present, the functional equivalent of questioning, and thereby deprived Respondent of his Fifth Amendment right to have counsel present at a custodial interrogation. Linda Jordan identified Christopher Holmes Conover as one of three men who wounded her and killed her husband and daughter. Conover and another man gained entrance to the Jordan home by claiming to be police officers. Once inside, they produced handguns, handcuffed the three members of the family, and admitted a third person, Gregory ³⁶ Jones. 1 After ransacking the house and taking jewelry from Mrs. Jordan, the three men forced their victims to the floor.

Firing through a pillow, Jones shot and killed Mr. Jordan and his daughter as they lay handcuffed together, and shot Mrs. Jordan in the head. Mrs. Jordan feigned unconsciousness until the three men left, and then attempted to call for help. Finding the telephone inoperable, she opened the front door only to be confronted again by Jones. She was able to slam and lock the door, but was again shot as one of the men saw her through a glass door.

Ultimately, she was able to leave the home and summon help. Respondent was charged with two counts of murder, attempted murder, burglary, and related offenses. Prior to trial, he moved to suppress any statements made by him following arrest, and this motion was heard by Judge J. William Hinkel. The only witness to testify at the suppression hearing was Detective Ron Long, one of the two principal investigating officers.

From Detective Long’s testimony, and from an examination of the original charging documents, we learn the circumstances under which the Respondent made the statement in question. On December 10, 1984, following an extra-judicial identification of Respondent by the surviving victim, Detectives Long and Murnane prepared an Application for Statement of Charges (Application) against the Respondent, and submitted it to a District Court Commissioner. Finding probable cause, the Commissioner issued a Statement of Charges containing six separate charges, and an arrest warrant. Respondent was arrested on the warrant on December 12, by officers other than the investigating detectives.

He was brought to the homicide squad room at Baltimore County Police Headquarters where he was met by Detectives Long and Murnane, who were in the company of Agent Fitzsim ³⁷ mons of the Federal Bureau of Investigation. 2 The three officers then took Respondent to the captain’s office for the purpose of advising him of his rights, obtaining a statement if he should elect to waive his rights, and completing routine processing. Once in the captain’s office, Detective Murnane read Respondent his Miranda rights. Respondent said he understood his rights and wished to have an attorney. No further questions were asked, and the detectives resumed their processing.

One of them read the Statement of Charges to Respondent, and handed him copies of the Statement of Charges and the Application, suggesting that he “read them, look at them, if you have any questions ask them.” We are unable to determine from the record whether Respondent read the Application, but we shall assume that he did. Respondent then asked a number of hypothetical questions, in the vein of “what if” or “suppose this,” and also uttered the statement that the State later used against him at trial: “you can’t put me with that .38.” 3 Judge Hinkel found, as the parties had agreed, that Respondent’s statement was made while he was in custody and after he had requested an attorney. Judge Hinkel found no violation of the Fifth Amendment, however, because the statement was voluntarily made and “[tjhere is just nothing presented that shows that [Respondent] was ³⁸ questioned; nothing presented that shows that he was induced or persuaded to make a statement.” The Court of Special Appeals reversed in an unreported per curiam opinion, relying upon its earlier decision in State v. Quinn, 64 Md.App. 668 , 498 A.2d 676 (1985), and holding that delivery of the Statement of Charges and Application to the Respondent after he had requested an attorney constituted a form of interrogation. We granted certiorari, and we now reverse..

It is settled law that' once an accused, detained in a custodial setting, has asserted his right to counsel, all interrogation must cease until an attorney has been furnished to consult with him or he initiates further communication, exchange, or conversations. Edwards v. Arizona, supra, 451 U.S. at 484-85 , 101 S.Ct. at 1884-85 ; Miranda v. Arizona, supra; Radovsky v. State, 296 Md. 386, 394 , 464 A.2d 239 (1983). The rule of Miranda does not exclude every statement uttered by the accused before he is provided with counsel. “Volunteered statements of any kind are not barred by the Fifth Amendment____” Miranda, 384 U.S. at 478 , 86 S.Ct. at 1630 . As the Supreme Court recognized in Edwards : The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.

Absent such interrogation, there would have been no infringement of the right that Edwards invoked and there would be no occasion to determine whether there had been a valid waiver. 451 U.S. at 485-86 , 101 S.Ct. at 1885 . The determination of whether there was a Fifth Amendment violation in this case turns on the question of whether there was an interrogation. The test for determining what constitutes interrogation within the meaning of the Fifth Amendment was outlined by the Supreme Court in Rhode Island v. Innis, 446 U.S. at 300-01 , 100 S.Ct. at 1689 -90: ³⁹ We conclude that the Miranda safeguards come into play whenever a person in custody is subjected to either express questioning or its functional equivalent. That is to say, the term “interrogation” under Miranda refers not only to express questioning, but also to 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.

In Innis , after a murder suspect had been arrested and informed of his Miranda rights, he requested an attorney. En route to the police station, the officers transporting him discussed the possibility that children attending a nearby school for the handicapped would injure themselves if they found a loaded gun. The accused, overhearing this conversation from the back seat of the police car, volunteered to show the officers the location of a shotgun. The Supreme Court concluded that the officers’ conversation did not constitute interrogation.

The officers had not expressly questioned Innis, nor did the record suggest that they were aware of any unusual susceptibility on his part to a concern for the welfare of handicapped children. Moreover, the record did not indicate that Innis was unusually disoriented or upset at the time of his arrest. Finally, the Court pointed out, this was not a case where “the police carried on a lengthy harangue in the presence of the suspect.” 446 U.S. at 303 , 100 S.Ct. at 1691 . Not all police conduct that may cause a defendant to speak constitutes interrogation.

Prior to the decision in Innis , we considered the application of Miranda to the routine processing of an arrested defendant, and concluded that: There seems to be general agreement ... that Miranda does not apply to “administrative questioning,” the routine questions asked of all arrestees who are “booked” or otherwise processed. Vines v. State, 285 Md. 369, 376 , 402 A.2d 900 (1979). ⁴⁰ To the same effect, see Whitfield v. State, 287 Md. 124, 142-43 , 411 A.2d 415 , cert. dismissed, 446 U.S. 993 , 100 S.Ct. 2980 , 64 L.Ed.2d 850 (1980). The Supreme Court later agreed, expressly excluding normal arrest and booking procedures from its definition of interrogation. Rhode Island v. Innis, 446 U.S. at 301, 100 S.Ct. at 1691 .

In interpreting and applying the rule of Miranda as refined by Edwards and Innis , it is helpful to keep in mind the reasons for the existence of the rule—the evils addressed by Miranda and the goals of the safeguards there established. Justice Powell, writing for the Supreme Court in Arizona v. Mauro, — U.S.-, 107 S.Ct. 1931, 1935 , 95 L.Ed.2d 458 (1987), recounted some of the reasons for the adoption of the rule: In [Rhode Island v. Innis ], the Court reviewed the police practices that had evoked the Miranda Court’s concern about the coerciveness of the “ ‘interrogation environment.’ ” 446 U.S., at 299, 100 S.Ct., at 1688 (quoting Miranda, 384 U.S., at 457 , 86 S.Ct., at 1619 ). The questioned practices included “the use of lineups in which a coached witness would pick the defendant as the perpetrator ____ the so-called ‘reverse lineup’ in . which a defendant would be identified by coached witnesses as the perpetrator of a fictitious crime,” and a variety of “psychological ploys, such as to ‘posi[t]’ ‘the guilt of the subject,’ to ‘minimize the moral seriousness of the offense,’ and ‘to cast blame on the victim or on society.’ ” 446 U.S., at 299, 100 S.Ct., at 1689 (quoting Miranda, 384 U.S., at 450 , 86 S.Ct., at 1615 ) (brackets by Innis Court). None of these techniques involves express questioning, and yet the Court found that any of them, coupled with the “interrogation environment,” was likely to “