State v. Luckett

MOYLAN, J. In purporting to comply with the mandate of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966), police interrogators will do well not to stray too far from the canonical text. Avoidance of error involves more than just steering clear of incorrect statements. Miranda contemplates the effective communication of a message to one in the throes of custodial interrogation. The assessment of effective communication involves more than merely scanning for literal error.

There are various ways in which communication can be compromised. An Interlocutory Appeal The appellee, Terris Terrell Luckett, was indicted on October 23, 2007, on two counts of first-degree murder along with two counts of using a handgun in the commission of a crime of violence. He filed a pretrial motion to suppress three statements he had made to the police. A hearing on that motion was held before Judge Leo E. Green, Jr., in the Circuit Court for Prince George’s County on February 25, February 26, and March 6, 2009, followed by oral argument on April 2, 2009.

On April 10, Judge Green filed an order, denying the motion to suppress the first two statements but granting it with respect to a third statement. On April 22, the State filed its interlocutory appeal pursuant to Maryland Code, Courts and Judicial Proceedings Article, § 12-302(c), which provides in pertinent part: (3)(i) In a case involving a crime of violence as defined in § 14-101 of the Criminal Law Article, ... the State may appeal from a decision of a trial court that excludes evidence offered by the State.... ⁴⁰⁵ (iii) ... The appeal shall be heard and the decision rendered within 120 days of the time that the record on appeal is filed in the appellate court. Otherwise, the decision of the trial court shall be final.

(iv) Except in a homicide case, if the State appeals on the basis of this paragraph, and if on final appeal the decision of the trial court is affirmed, the charges against the defendant shall be dismissed in the case from which the appeal was taken. (Emphasis supplied). The record in this case was filed on June 19, 2009. The decision of this Court, therefore, must be rendered no later than October 16, 2009.

The Factual Background On August 2, 2007, Tunja Luckett, the appellee’s wife, was found dead of a gunshot wound at the couple’s Fort Washington home. On that same day, John Scales was shot to death at his barbershop in Clinton. On August 3, charges were filed against the appellee, charging him with both murders. The appellee himself, however, was not yet apprehended.

On August 4, Prince George’s County Police Officer Stephen Fox responded to the Southern Avenue Metro Station, where the appellee had reportedly leaped backward from the Metro platform directly into the path of an oncoming train. The appellee was pulled from the tracks and rushed by helicopter to the Prince George’s County Hospital. Both legs were crushed and, in the course of two operations over the next two days, both of the appellee’s legs were amputated. In his meticulously thorough 14-page Opinion of the Court, Judge Green began with a summary that made this bizarre string of events comprehensible.

The state essentially alleges that Mr. Luckett believed that his wife was having an affair with his son’s football coach. Mr. Luckett is alleged to have killed his wife and after doing so, gone to the football coach’s place of business, a barber shop, and proceeded to kill the football coach on August 2, 2007. On August 4, 2007 having what can best be described as “shooter’s remorse”, Mr. Luckett attempted to ⁴⁰⁶ take his life in two ways. First, he slit his wrists.

Failing in that attempt, Mr. Luckett went to a Metro station a little after two in the afternoon and threw himself in front of a moving Metro train. The First Statement to Officer Fox When he first arrived at the hospital, the appellee spontaneously spoke to Officer Fox, who had accompanied him to the hospital from the Metro station. The appellee volunteered to Officer Fox that he had not meant to kill his wife but that he had meant to kill Scales, because he believed that Scales was having an affair with his (the appellee’s) wife. The appellee referred to Scales as his “enemy” and said that he had wanted to kill Scales for eight and a half months.

The appellee further stated that after he shot Scales, he threw the gun out of the car window. He also stated that after the shootings, he tried to slit his wrists because he did not want to go to jail. Judge Green ruled that the appellee’s statements to Officer Fox were totally spontaneous and were not in response to any interrogation. Miranda v. Arizona, therefore, did not apply.

Smith v. State, 186 Md.App. 498, 520-22 , 974 A.2d 991 (2009). The judge ruled: There is no evidence that either officer interrogated or came close to interrogating Mr. Luckett in any way. These statements were volunteered by Mr. Luckett. “Volunteered statements of any kind are not barred by the Fifth Amendment”. Miranda v. Arizona, 384 U.S. 436, 478 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 .

The correctness of that ruling is not before us on this appeal. The Second Series of Statements to Detective Selway On the next day, August 5, Detective Brian Selway, of the Homicide Division, took over the duty of being posted as guard at the appellee’s hospital room. He came on duty at 7 A.M. The appellee awoke between 10:15 and 10:20 A.M. and immediately started talking. Judge Green’s Opinion of Court ⁴⁰⁷ again well summarized Detective Selway’s initial concern and his observations with respect thereto.

Det. Selway was concerned with Mr. Luckett’s level of alertness and asked him questions such as who the President of the United States was and what the Detective’s first name was. Answering correctly, Det. Selway observed Mr. Luckett to be alert and responsive.

Mr. Luckett also answered questions of hospital personnel and was aware of his surroundings. Selway watched as Mr. Luckett joked with the hospital staff when they came into the room to monitor his medicines. Through the conversation Mr. Luckett revealed that he was aware an arrest warrant had been issued for him. At 10:33 A.M. Detective Selway read the appellee his Miranda warnings from the small business card he carried in his wallet.

If a later effort to inform the appellee of his Miranda rights on August 13, which we will be examining in some depth, is a textbook example of what not to do, the unadulterated Miranda warnings that Detective Selway delivered on August 5 are a textbook example of what to do, to wit, of saying what needs to be said in simple and straightforward language. You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to talk to a lawyer and to have him with you during questioning.

If you cannot afford a lawyer, one will be appointed for you before a statement is taken, if you wish. If you decide to give a statement, you still have the right to stop at any time so you may talk to a lawyer. The appellee waived those rights by saying, “I understand.” From then until 2:20 P.M., Detective Selway simply listened as the appellee talked. The appellee reaffirmed that he believed that his wife had been having an affair with their son’s football coach.

He repeated his earlier statements to Officer Fox that he did not mean to kill his wife and that he threw the gun away after shooting Scales at the barbershop. He also told Detective Selway that he kept a journal under the ⁴⁰⁸ mattress in his bedroom, and he asked Detective Selway to retrieve it. At approximately 2:15 P.M. a District Court Commissioner arrived at the appellee’s intensive care room. The appellee, in Detective Selway’s presence, told the Commissioner, “I know what I did was wrong.” The appellee then asked, “Is there any way I can get off the death penalty?” The Commissioner responded that she could not give legal advice.

Judge Green’s primary concern with respect to those statements was whether the appellee was in a sufficiently lucid state 1) to make a free and voluntary confession and 2) to make a free and voluntary waiver of his Miranda rights. Judge Green found that the appellee was lucid and rational and ruled that the motion to suppress those statements would, therefore, be denied. [T]he Court finds Detective Selway to be believable and places great weight on his testimony. Although Det. Sel-way was initially concerned about Mr. Luckett’s state of mind, he concluded [that] Mr. Luckett was lucid after asking him non-interrogational questions.

The Court finds that Mr. Luckett understood what he was saying and was not improperly coerced by Detective Selway into giving these statements. The Court concludes that the statements made to Detective Selway and the statement made in the presence of the Commissioner, Detective Sel-way and Detective Codero was made freely and voluntarily. (Emphasis supplied). The correctness of that ruling is also not before us on this appeal.

The Third Statement to Detective Barba This appeal by the State is taken only from Judge Green’s decision to suppress a third statement, given by the appellee to Detective Matthew Barba on August 13, 2007. Detective Barba briefly visited the appellee in his hospital room on August 8, identified himself as the lead investigator in the two homicides with which the appellee was charged, dropped off a ⁴⁰⁹ business card, and said that he would be back on another day. Detective Barba returned on August 13 with audio/video equipment and a technician with the hope of conducting a videotaped interview with the appellee. Detective Barba arrived at 12:35 P.M. The recording equipment was set up and ready to go by 12:52 P.M. During the 17 minutes of preparation time, Detective Barba and the appellee were engaged in conversation that was not recorded.

Once the tape was running, Detective Barba launched into an extended discussion with the appellee about his Miranda rights. At the end of the discussion, the appellee ostensibly waived those rights and agreed to talk. He then gave a lengthy statement detailing his belief that his wife was having an affair with Scales, his activities during the weeks leading up to the murders, and the murders themselves. He repeated his earlier statements that he had not meant to kill his wife but that he had made a conscious decision to kill Scales.

He repeated that he knew that what he did was wrong and that he was willing to “accept my punishment and be accountable for my actions.” He expressed the hope that Detective Barba would not “throw the book at me.” The Suppression In suppressing the third statement, Judge Green ruled that there were, in the course of the advisements, several statements that were affirmatively incorrect. One was a statement about not needing a lawyer. Detective Barba’s statement “you don’t need a lawyer” is not a correct recitation of the law and should never be spoken by any law enforcement officer to a person in custody under any circumstances. These words were related to Mr. Luckett two times in the videotape and according to Detective Barba, stated at least two other times.

It appears from Detective Barba’s statement that he may have stated the same words before the tape was turned on as well. Any statement that could possibly lead the defendant ⁴¹⁰ to misconstrue his rights under Miranda is contrary to the law requiring knowing and voluntary waiver. (Emphasis supplied). The Totality of the Advisements We affirm the decision of Judge Green to suppress the videotaped confession of August 13.

In making our own independent constitutional decision, Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002), we rely not simply on the incorrect statements pointed out by Judge Green. We hold that, under the totality of the circumstances, the unnecessarily lengthy and rambling discussion about the nature of the Miranda rights not only included specifically questionable statements of the law but utterly failed effectively to communicate the message mandated by Miranda . Because this communicative failure inhered in the totality of the message, it behooves us to set out that advisory message in its totality. DETECTIVE BARBA: Like, like I said, I’m not here, I’m here to help.

MR. LUCKETT: Whatever you need. DETECTIVE BARBA: Okay. I’m going to explain everything to you, um, I’m Detective Barba okay, I introduced myself last week.

I’m Detective Barba of the Prince George’s County Police Department, okay. MR. LUCKETT: Yes. DETECTIVE BARBA: I’m going to read you your rights for this particular interview— MR.

LUCKETT: Okay. DETECTIVE BARBA:—that we’re going to have, okay. MR. LUCKETT: Yes.

DETECTIVE BARBA: You do have rights. I’ll also explain that we have audio and video on right now, you do understand that? MR. LUCKETT: Yes. ⁴¹¹ DETECTIVE BARBA: Right?

Okay. Now I’ll read everything just like were, just call like Miranda rights. Okay. MR.

LUCKETT: Okay. DETECTIVE BARBA: If you don’t understand anything that I’m saying to you, stop me. MR. LUCKETT: Okay.

DETECTIVE BARBA: Okay, I have no problem with that all right. Now I’m going to read everything verbatim, okay. MR. LUCKETT: Yes.

DETECTIVE BARBA: And we’ll go from here. All right, this is an advice of rights and waivers form, right here okay. MR. LUCKETT:— DETECTIVE BARBA: I’m going to show it to you afterward.

You want to move your thing up a little bit? MR. LUCKETT: Yeah, let me see that. DETECTIVE BARBA: Okay.

This is—rights and waivers form. MR. LUCKETT: I understand. DETECTIVE BARBA: For our Prince George’s County Police Department.

Today’s date is August 13, 2007 and the time is 12:52, okay. Um, I am now going to read you your rights under the law. If you do not understand something that I say to you, please stop me and I’ll explain them to you, okay? MR.

LUCKETT: Yes. DETECTIVE BARBA: You have the right to remain silent, if you choose to give up this right, anything that you say can be used against you in court. MR. LUCKETT: Yes ⁴¹² DETECTIVE BARBA: Okay.

You have the right to talk to a lawyer before you are asked any questions to have a lawyer present with you while you’re being questioned, that’s about this ease specifically. MR. LUCKETT: Okay. DETECTIVE BARBA: Like I said, if we want to talk about the Redskins, you don’t need a lawyer for that because it does not concern—okay.

Uh, if you want a lawyer and cannot afford, uh, a lawyer will be provided with you at no cost, in a public defender, things—or you can get a private attorney. If you want to answer questions now without a lawyer, you still have the right to stop answering questions at any given time. MR. LUCKETT: Okay.

DETECTIVE BARBA: Now, you understand that? Do you understand these rights? MR. LUCKETT: Yes.

DETECTIVE BARBA: Okay—that’s you understand just check yes and then initial if you understand those rights. MR. LUCKETT: Just check yes? DETECTIVE BARBA: If you understand the rights that I’m giving you.

MR. LUCKETT: Yeah. DETECTIVE BARBA: And then initial. Okay.

Have you been, uh, do you want to make a statement at this time without a lawyer present? And that could be the verbal one. We’re not [background noise] written, normally I would take a written one, part of it will be a verbal that would be us discussing the incident back and forth, do you want to do that ⁴¹³ MR. LUCKETT: I’m, sorry, if I say yes, we’re going to discuss the incident right?

DETECTIVE BARBA: Mm-hmm. MR. LUCKETT: Would I be setting myself up? MALE VOICE: Huh?

MR. LUCKETT: Would I set, would I be setting myself up? MALE VOICE: You— MR. LUCKETT: I mean I’m, I’m looking toward you for answer you know what I’m saying?

MALE VOICE: DETECTIVE BARBA: MR. LUCKETT: Now which is—would he be asking you. DETECTIVE BARBA:— MR. LUCKETT:—we’re, we’re going to discuss the case— DETECTIVE BARBA: You— MR.

LUCKETT:—without my lawyer? DETECTIVE BARBA: Okay, if we discuss any matters outside of the case, you don’t need a lawyer present at all. Period. Okay?

MR. LUCKETT: So— DETECTIVE BARBA: We can talk about anything but the case— MR. LUCKETT: So I won’t be hurting myself? DETECTIVE BARBA: If we talk about anything but the case, okay.

MR. LUCKETT: Mm—hmn DETECTIVE BARBA: I’m just letting you know that you do have rights okay. MR. LUCKETT: Okay.

DETECTIVE BARBA: When we are discussing matters of the case, when I ask you something specifi cally— MR. LUCKETT: Mm—hmm. ⁴¹⁴ DETECTIVE BARBA:—or if you tell me something specifically, you have a right to have a lawyer present here, okay? MR. LUCKETT: Okay.

DETECTIVE BARBA: What you’re doing here is that you are giving up a right to having lawyer present to tell me your side, okay. MR. LUCKETT: Okay. DETECTIVE BARBA: You don’t have to do that, Okay.

MR. LUCKETT: Right. DETECTIVE BARBA: But for me to be able to present your side— MR. LUCKETT: Okay.

DETECTIVE BARBA:—along with everything else that I’ll be presenting— MR. LUCKETT: Mm—hmm. DETECTIVE BARBA: Okay, then that goes on my integrity. MR.

LUCKETT: All right, I know what you’re saying. DETECTIVE BARBA: I’m going to give the full version of what’s going on. MR. LUCKETT: Okay.

DETECTIVE BARBA: Okay. Do you understand that? MR. LUCKETT: Correct.

DETECTIVE BARBA: Okay. So you understand that you do have rights. MR. LUCKETT: Right.

DETECTIVE BARBA: You don’t have to talk to me. MR. LUCKETT: Correct. DETECTIVE BARBA: Okay.

Do you want to make a statement at this time without a lawyer present? ⁴¹⁵ MR. LUCKETT: Yes. (Emphasis supplied). The Irrelevance of the Washington Redskins How was the Miranda message compromised?

Let us count the ways. Communicative effectiveness cannot be assessed in a vacuum. It may only be evaluated in terms of what particular message is intended to be communicated to what particular audience and for what purpose. Let us put on a microscopic slide for a moment the snippet about the Washington Redskins.

DETECTIVE BARBA: You have the right to talk to a lawyer before you are asked any questions, to have a lawyer present with you while you’re being questioned, that’s about this case specifically. MR. LUCKETT: Okay. DETECTIVE BARBA: Like I said, 1 if we want to talk about the Redskins, you don’t need a lawyer for that because it does not concern—okay.

(Emphasis supplied). Deferring for the moment the possible impact on a defense of Not Criminally Responsible, Detective Barba’s observation about the constitutional implications of conversation concerning the Redskins may have been technically impeccable. At an academic seminar for judges and lawyers, exploring the outer limits of the Miranda-based prophylactic right to counsel, it might serve as a good teaching example. The appellee Terris Luckett, however, does not attend such seminars.

The nuance was something he did not need to know. Effective communication to one audience for one purpose may be totally ineffective to another audience for another purpose. For the ⁴¹⁶ appellee, lying in a hospital bed accused of two first-degree murders, what he needed to be told was that he was entitled to a lawyer in that particular place at that particular time. He did not need to be told of purposes for which he did not need a lawyer.

The homicide detective was not in the appellee’s hospital room with videotaping equipment to discuss the Washington Redskins. The lengthy statement that was then videotaped made no mention of the Washington Redskins. Why then, we ask, were the Redskins mentioned? The extraneous reference did not in any way enhance the vital constitutional message the appellee was entitled to receive.

The extraneous material, even if not literally incorrect, got in the way of the message. The Possible Relevance of the Washington Redskins In this case, however, conversation about the Washington Redskins might have taken on critical relevance. The killings were crimes of extreme passion. There is a strong suggestion that the appellee’s belief in his wife’s adultery may have been a long-harbored delusion.

The police team, certainly Officer Fox and Detective Selway, was well aware of the appellee’s two suicide attempts, the second resulting in the amputation of both legs. Detective Barba himself, moreover, was the lead investigator in the case and was personally familiar with the case file. He had read over on several occasions the appellee’s journal in which the appellee had expressed his fears and suspicions about his wife’s infidelity. Detective Barba was also aware of the fact that on the day before the shootings the police had been called to the appellee’s home for a domestic dispute and that the appellee’s wife had sought information about how to apply for an emergency psychological evaluation of her husband.

Looming large on the adjudicative horizon generally and on Detective Barba’s radar screen specifically, therefore, was the likely defense of Not Criminally Responsible. We now pose a hypothetical scenario. Let us suppose that the appellee had responded to Detective Barba, “I am not willing to discuss this case in any way without the presence of ⁴¹⁷ a lawyer. I am, however, perfectly willing to talk about the Redskins.” Let us further suppose that the two then discussed football for the next fifteen minutes, after which Detective Barba packed up his videotaping equipment and bade the appellee farewell.

Suppose further that in the course of the fifteen minute discussion of football, the appellee delivered an incisive and insightful analysis of the Redskins’ fortunes that would have done credit to John Madden or A1 Michael. If the appellee were later to proffer a plea of Not Criminally Responsible, is it conceivable that that tape would not be offered by the State to demonstrate to a jury how lucid and logical the appellee could be when he chose to be? Judge Green commented on the broad potential of anything the appellee might say on any subject to compromise his defense. By the ninth day of investigating this matter, Detective Barba, a seasoned Prince George’s County Officer, either knew or should have known that the defense would allege that Mr. Luckett was not criminally responsible for his actions, or that his sanity would be questioned.

Any statement shedding light on his mental capacity or understanding, regardless of whether it was about this case or not, could be relevant and Mr. Luckett would have greatly benefited from a counsel. Mr. Luckett’s entire life was more or less in question at this time. This was not simply a “domestic” case as the State believes. Much more was riding on the questioning of Mr. Luckett at this stage of the investigation of “the case.” (Emphasis supplied).

An attorney would immediately have recognized the possibility of an NCR plea and would have advised the appellee not to talk about anything. The advice to the appellee, therefore, that he did not need a lawyer to talk about the Redskins was not only extraneous but it was, in the circumstances of this case, affirmatively wrong. “I’m Here To Help” There is an ironic incongruity about a homicide investigator’s presenting himself as the friend of the suspected ⁴¹⁸ homicidal agent. The videotaped portion of the Miranda advisements, however, begins on just such a note of supportive amiability. DETECTIVE BARBA: Like, like I said.

I’m not here, I’m here to help. (Emphasis supplied). There is the strong inference, moreover, that that theme about Detective Barba’s being there to help the appellee had already been fully developed during the antecedent 17 minutes before the videotaping began. What was said on tape was “like I said” before the taping began.

When someone such as the appellee is being asked to decide whether he wants a lawyer to help him, such language about the interrogator’s being there to help him can be misleading. A suspect might easily believe that he must give up one source of help in order to obtain another source of help. That could be a difficult Solomon’s choice for a defendant to make. In truth, of course, the detective is not there to help.

A trained homicide investigator goes into an interrogation room with the intention of getting a confession of guilt. His job is to develop the evidence that will produce a conviction. Sympathy and understanding are simply among the weapons in the arsenal of a skilled interrogator. If they are helpful in persuading a defendant to forego the assistance of counsel, they will have been particularly effective.

There is an echo here of the fictional Sergeant Andy Sipow-itz of N.Y.P.D. Blue as he poses the delicate balance between two mutually exclusive sources of help, “You’re entitled to a lawyer, of course, but once you ask for a lawyer, I won’t be able to help you out anymore.” That type of statement can only be read as a discouragement of invoking one’s right to counsel. It is an express disincentive as it cautions that obtaining a lawyer will come at the cost of the interrogator’s no longer being able to help the defendant out by “telling his side of the story.” Just such a disincentive was articulated in this case as Detective Barba pointed out to the appellee the advantage of having himself (Barba) available “to tell your ⁴¹⁹ side” of the case, a guarantee buttressed by Detective Barba’s personal “integrity.” The choice was posed as a quid pro quo. DETECTIVE BARBA: What you’re doing here is that you are giving up a right to have [a] lawyer present [in order for me] to tell me your side, okay. MR.

LUCKETT: Okay. DETECTIVE BARBA: You don’t have to do that, Okay. MR. LUCKETT: Right.

DETECTIVE BARBA: But for me to be able to present your side— MR. LUCKETT: Okay. DETECTIVE BARBA:—along with everything else that I’ll be presenting— MR. LUCKETT: Mm-hmm.

DETECTIVE BARBA: Okay, then that goes on my integrity. MR. LUCKETT: All right, I know what you’re saying. DETECTIVE BARBA: I’m going to give the full version of what’s going on.

(Emphasis supplied). The inevitably seductive effect of repeated assurances that the interrogator is there “to help” the defendant is that the officer is presented as an alternative source of “help.” Such a choice is an unspoken inducement to waive the right to counsel. A helpful and reassuring friend in the hand may appear to be worth two in the bush. It was almost immediately after that exchange that the appellee gave “up a right to having [a] lawyer present” and agreed to give Detective Barba a confession.

One has to wonder, in passing, how it “helps” a defendant to confess to murder, even