State v. Rush

DEBORAH S. EYLER, J. In its murder prosecution against Cindi Renee Katherine Rush, the State has appealed a pre-trial ruling by the Circuit ²⁶⁹ Court for Prince George’s County suppressing from evidence inculpatory statements Rush gave to the police. The State asks whether the circuit court erred in ruling that the statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). Rush maintains that the Miranda ruling was correct but asks, beyond that, • whether the suppression ruling should be upheld because, contrary to the alternative ruling of the circuit court, her statements were not voluntarily made. For the reasons that follow, we hold that 1) in the circumstances of this interrogation, there was no Miranda violation; 2) this Court has jurisdiction to decide Rush’s alternative involuntariness argument; and 3) some of Rush’s statements to the police were not voluntarily given.

Accordingly, we shall affirm the circuit court’s suppression ruling in part, although on an alternative ground, vacate it in part, and remand the case for further proceedings. FACTS AND PROCEEDINGS Rush stands charged with the first degree murder of Patricia Caniglia, first degree assault of Antonio Caniglia, and other related offenses. The underlying events took place on April 19, 2006. That evening, at about 7:30, Mrs. Caniglia and her adult son Antonio were inside their home in the Fort Washington area of Prince George’s County.

An assailant armed with a handgun broke into the house, confronted Mrs. Caniglia in an upstairs bedroom, and shot her in the head, killing her. Antonio was in the basement when the intruder entered. When he heard his mother cry out, he armed himself with a shotgun and confronted the intruder, who aimed the handgun at him. Antonio shot the intruder, killing him.

The intruder, who was a stranger to the Caniglias, later was identified as one Jeffrey Gilbert, nicknamed “DC”. That same night, at the time of the shooting, a witness noticed a red car parked in front of the Caniglia house. The car was occupied by a man and a woman, both of whom were ²⁷⁰ slouching down, as if to avoid being seen. The woman was about 20 years old, Caucasian, with black hair.

Prince George’s County Police Department (“PGCPD”) officers investigating Mrs. Caniglia’s murder became interested in Rush as a suspect once they obtained Gilbert’s cell phone records. From those records, the police learned that Rush, Gilbert, and another suspect, Larry Ellis (nicknamed “JR”), were together and in the immediate area of the Caniglia home when the shooting happened. The police investigation further disclosed that, a few years before the shooting, Rush had worked at the Caniglia family’s restaurant and had been romantically involved with Antonio. Indeed, for some period of time, Rush had lived with the Caniglias.

Also, Rush matched the witness’s physical description of the woman in the red car. In the District Court of Maryland for Prince George’s County, Detective Kerry Jernigan, the lead homicide detective on the Caniglia case, filed an application for statement of charges against Rush. On the basis of the information in the application, Rush was charged with first-degree murder of Mrs. Caniglia, and an arrest warrant was issued for her. On May 1, 2006, Corporal William Chinn and other officers in the PGCPD’s Homicide Unit arrested Rush on the warrant, at her aunt’s home in Baltimore County.

They transported her to the unit’s Criminal Investigation Division, in Upper Marlboro. There, Rush signed an Advice of Rights Form and was interrogated by Detective Jernigan. The interrogation was digitally recorded and saved on a DVD. After initially saying that she had had nothing to do with the murder, Rush made several inculpatory statements, at first oral and then in writing.

On May 30, 2006, in the Circuit Court for Prince George’s County, a grand jury indicted Rush for first-degree murder of Patricia Caniglia, armed robbery of Antonio Caniglia, and other related charges. Rush filed a timely motion to suppress from evidence the inculpatory statements she made to Detective Jernigan. ²⁷¹ The circuit court held a suppression hearing on September 27, 2006. Detective Jernigan and Corporal Chinn testified in the State’s case-in-chief; Rush testified on her own behalf; and Detective Jernigan testified on rebuttal. The DVD of the interrogation, the Advice of Rights Form, the Application for Statement of Charges, and Rush’s written statement were moved into evidence as State’s exhibits.

The defense did not offer any exhibits. The issues before the court were whether Rush’s statements were obtained in violation of Miranda and whether her statements were made voluntarily, under the standards imposed by federal constitutional, Maryland constitutional, and Maryland non-constitutional law. After hearing closing arguments of counsel, the circuit court ruled that Rush’s statements had been obtained in violation of the dictates of Miranda , and would be suppressed on that ground. The court made plain that it was granting the suppression motion on the Miranda violation ground only, and was not granting it on the alternative involuntariness ground.

On October 12, 2006, pursuant to Md.Code (2006 RepLVol.), section 12-302(c)(3) of the Courts and Judicial Proceedings Article (“CJ”), the State noted this appeal from the circuit court’s suppression decision. Rush noted a cross-appeal, challenging the circuit court’s ruling that her statements were voluntary, and hence were not subject to suppression on that alternative ground. This Court issued an order directing Rush to show cause “why the Court should not conclude that the cross-appeal is an interlocutory appeal not allowed by Raimondi v. State, 8 Md.App. 468 , 261 A.2d 40 , cert. denied 256 Md. 747 (1970), and Pearce v. State, 8 Md.App. 477 , 261 A.2d 39 (1970), and not expressly permitted by § 12-302 of the Courts Article and, thus, subject to dismissal pursuant to Md. Rule 8-602(a)(l).” Rush responded, inter alia, that even without a cross-appeal this Court has jurisdiction to uphold the suppression ruling on the alternative involuntariness ground that was rejected by the circuit court. ²⁷² On January 12, 2007, this Court entered an order dismissing Rush’s cross-appeal. The cross-appeal was dismissed without prejudice to Rush to argue that this Court has jurisdiction to decide the alternative voluntariness issue.

DISCUSSION I. Miranda Violation 1. Pertinent Facts Corporal Chinn arrested Rush on the first degree murder warrant and transported her from her aunt’s home to Upper Marlboro. After Rush was placed in an interview room, Detective Jernigan entered, introduced himself, and said he wanted to talk to her about Mrs. Caniglia’s death. He asked whether Rush had been arrested before, or had had any prior dealings with the police.

She responded, “No.” He then said, “All right. Before I can talk to ya, I’m sure you’re aware, you watch TV, I have to advise you of your constitutional rights. I can’t ask you questions until I’ve done that ... [a]nd give you a[sic] opportunity ... to decide if you wanna talk to me or not.” Before starting with the advisements, Detective Jernigan said he understood that Rush used to work for the Caniglias, and asked if she knew Antonio; Rush responded that she had worked for the Caniglias about three years prior and that she used to live with them. Detective Jernigan then proceeded to advise Rush, using a standard Advice of Rights Form, to which he made a handwritten alteration.

The form with the alteration stated, in relevant part: I am now going to read to you your rights under the law. If you do not understand something that I say to you, please stop me, and I will explain it to you. 1. 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. ²⁷³ 2.

You have the right to talk to a lawyer before you are asked any questions and to have a lawyer with you while you are being questioned. 3. If you want a lawyer, but cannot afford one, a lawyer will be provided to you @ some time at no cost. 4. If you want to answer questions now without a lawyer, you still have the right to stop answering questions at any time. On the original document, the phrase we have italicized and put in bold is the handwritten addition made by Detective Jernigan.

To confirm Rush’s literacy, Detective Jernigan had her read a portion of the form aloud. He then read the form to Rush, as follows: I’m 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 will explain it to you. 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. You have the right to talk to a lawyer before you’re asked any questions. You have the right, you have, you have the right to have a lawyer with you while being questioned. If you want a lawyer and can’t afford one, one will be provided to you at some time at no cost.

If at some point in time during our questioning you decide you don’t want to talk anymore, that’s your right as well. Okay? (Emphasis added.) After reading the Advice of Rights Form, Detective Jernigan asked Rush whether “[a]ll that make sense to ya?” She replied in the affirmative. He then asked several questions to verify that Rush understood the advisements stated in the Form, and had Rush place her initials next to four answers to questions on the form.

Rush’s initials confirmed 1) that she understood the rights that had been read to her; 2) that she wanted to make a statement at that time without a lawyer; 3) that she had not been offered any kind of reward or benefit nor had she been threatened in any way in order to get her to ²⁷⁴ make a statement; and 4) that she was not under the influence of alcohol or drugs. Rush initialed the Advice of Rights Form. Before she signed it, the following exchange occurred: RUSH: I mean do I need a lawyer or somethin’ or is it, am I just in here for— DETECTIVE JERNIGAN: Well— RUSH: — questioning? I mean— DETECTIVE JERNIGAN: — if you decide at that, any point in time during our questioning that you feel that that’d be best for you, then you let me know that.

Okay? RUSH: I’m just wonderin’ why it’s asking if I need a lawyer. You know, but anything you guys need to know, I’m willing to help. DETECTIVE JERNIGAN: Sign there for me, and just note on the bottom below your signature what level of education you have.

Thereafter, Rush and Detective Jernigan each signed the form. At the suppression hearing, Detective Jernigan testified in the State’s case-in-ehief about advising Rush of her rights, as above. He acknowledged that he had written the words “@ some time” on the form, in advisement 3. He explained that it was his usual practice to insert that phrase in advisement 3 because, [A lawyer] is not going to magically appear.

It’s going to take a little time for a lawyer to be provided to her for a representation. You know, that’s something that is going to just take a little time. That’s all. Rush testified that she did not remember being advised of her rights, but she did remember being told that a lawyer would be appointed for her “after [she] would go to jail.” She then acknowledged, however, that that was said to her only after the interrogation had concluded. ²⁷⁵ 2.

Standard of Review In reviewing a circuit court’s ruling on a motion to suppress, “[w]e extend great deference to the fact finding of the suppression court and accept the facts as found by that court unless clearly erroneous.” Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002) (quoting Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001)). We consider the evidence introduced at the suppression hearing and the reasonable inferences therefrom “that are most favorable to the party who prevailed on the motion.” State v. Harding, 166 Md.App. 230, 237 , 887 A.2d 1108 (2005). We make an independent determination, however, as to whether the circuit court correctly applied the law to facts. Laney v. State, 379 Md. 522, 533-34 , 842 A.2d 773 (2004). 3.

Analysis In Miranda v. Arizona, supra, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 , the Supreme Court held that, when a criminal suspect is in custody, he must be advised, before police questioning, “that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed” before and during questioning. Id. at 444 , 86 S.Ct. 1602 . If a suspect makes a voluntary, knowing, and intelligent waiver of these rights, he may be interrogated without counsel present. Davis v. United States, 512 U.S. 452, 458 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994); North Carolina v. Butler, 441 U.S. 369, 372-76 , 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979); See also Miranda, supra, 384 U.S. at 444-45 , 86 S.Ct. 1602 .

If during questioning the suspect invokes his right to counsel, questioning must cease until counsel has been provided or the suspect voluntarily reinitiates conversation. Edwards v. Arizona, 451 U.S. 477, 484-85 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981). The Miranda Court explained that, for a waiver to be effective, the required advisements must be given either as stated in that opinion or by means of “a fully effective ²⁷⁶ equivalent.” 384 U.S. at 476 , 86 S.Ct. 1602 . In the years since Miranda was decided, the Supreme Court has clarified that there need not be a “talismanic incantation” of the precise words used in the Miranda opinion for the warnings to be deemed effective.

California v. Prysock, 453 U.S. 355, 359-60 , 101 S.Ct. 2806 , 69 L.Ed.2d 696 (1981) (per curiam). See also Rhode Island v. Innis, 446 U.S. 291, 297 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 (1980) (referring to “the now familiar Miranda warnings ... or their equivalent”). In the case at bar, we must decide whether Detective Jernigan’s alteration of advisement 3 to read, “If you want a lawyer and can’t afford one, one will be provided to you at some time at no eost[,]” rendered deficient the Miranda warnings as given. Rush argued below that, because questioning was imminent and indeed had started with some preliminary inquiries, changing advisement 3 to say that, if she could not afford a lawyer (which she could not), one would be appointed for her “at some time[,]” effectively negated advisement 2, that she was entitled to consult a lawyer both before and during questioning.

As already mentioned, the circuit court adopted this argument, ruling that the language alteration could lead an indigent lay person such as Rush to misapprehend that she had a right to consult counsel prior to, and during, interrogation. The State contends that, notwithstanding the addition of the “at some time” phrase, the Miranda advisements Rush received clearly and correctly informed her of her right to counsel both before and during interrogation, and that, under controlling Supreme Court case law, that was sufficient. Accordingly, the State maintains, the circuit court’s ruling was in error. The controlling precedent on this issue is the Supreme Court’s decision in Duckworth v. Eagan, 492 U.S. 195 , 109 S.Ct. 2875 , 106 L.Ed.2d 166 (1989).

In that case, Eagan was brought to the station house for questioning after he called the police to report that a woman had been raped and stabbed. ²⁷⁷ The police read him an advice of rights form that stated, in pertinent part: You have the right to remain silent. Anything you say can be used against you in court. You have a right to talk to a lawyer for advice before we ask you any questions, and to have him, with you during questioning. You have this right to the advice and presence of a lawyer even if you cannot afford to hire one.

We have no way of giving you a lawyer, but one will be appointed for you if you wish, if and when you go to court. If you wish to answer questions now without a lawyer present, you have the right to stop answering questions at any time. You also have the right to stop answering at any time until you’ve talked to a lawyer. Id. at 198 , 109 S.Ct. 2875 (emphasis in original).

Eagan waived his rights and eventually confessed to stabbing the woman. His statement was admitted into evidence at trial and he was convicted of attempted murder. The United States Court of Appeals for the Seventh Circuit reversed Eagan’s conviction, stating that the advice that counsel would be appointed “if and when you go to court[,]” was constitutionally defective because it denie[d][the] accused indigent a clear and unequivocal warning of the right to appointed counsel before any interrogation. Eagan v. Duckworth, 843 F.2d 1554, 1557 (7th Cir.1988).

Moreover, it “link[ed] an indigent’s right to counsel before interrogation with a future event.” Id. The Supreme Court reversed the Seventh Circuit, holding that the advice of rights, when evaluated in its totality, satisfied the dictates of Miranda . It reasoned, contrary to the analysis of the Seventh Circuit, that the advisements as given, notwithstanding the “if and when you go to court” language, expressly apprised Eagan of his right to have counsel present before he was questioned. The Court noted that the warning properly described the procedure for appointing counsel in the jurisdiction in which Eagan was questioned and that Miranda does not require that suspects be given attorneys on the spot.

The Court explained: ²⁷⁸ We think the ... warnings given to [Eagan] touched all of the bases required by Miranda . The police told [Eagan] that he had the right to remain silent, that anything he said could be used against him in court, that he had the right to speak to an attorney before and during questioning, that he had “this right to the advice and presence of a lawyer even if [he could] not afford to hire one,” and that he had the “right to stop answering at any time until [he] talked to a lawyer.” As noted, the police also added that they could not provide [Eagan] with a lawyer, but that one would be appointed “if and when you go to court.” The [Seventh Circuit] thought this “if and when you go to court” language suggested that “only those accused who can afford an attorney have the right to have one present before answering any questions,” and “implie[d] that if the accused does not ‘go to court,’ i.e.[] the government does not file charges, the accused is not entitled to counsel at all.” In our view, the [Seventh Circuit] misapprehended the effect of the inclusion of “if and when you go to court” language in Miranda warnings. First, this instruction accurately described the procedure for the appointment of counsel in Indiana.... We think it must be relatively commonplace for a suspect, after receiving Miranda warnings, to ask when he will obtain counsel.

The “if and when you go to court” advice simply anticipates that question. Second, Miranda does not require that attorneys be producible on call, but only that the suspect be informed, as here, that he has the right to an attorney before and during questioning, and that an attorney would be appointed for him if he could not afford one. 492 U.S. at 203 , 109 S.Ct. 2875 (citations and footnotes omitted; emphasis in original). In so ruling, the Court distinguished dicta in its opinion in Prysock, swpra. There, the police advised Prysock that he had a right to have a lawyer present during questioning and a right to have a lawyer appointed at no cost.

Prysock waived his rights and made an inculpatory statement to the police. ²⁷⁹ Ultimately, he was convicted of first-degree murder in a trial in which his statement was admitted into evidence. The California Court of Appeals reversed the conviction, concluding that the statement should have been suppressed, as Prysock was not specifically told that he had a right to have an attorney appointed at no cost before questioning. Prysock, supra, 453 U.S. at 358-59 , 101 S.Ct. 2806 . The California Supreme Court denied certiorari.

Id. at 359, 101 S.Ct. 2806 . The Supreme Court granted certiorari and reversed, holding that the advisements Prysock received satisfied the Miranda requirements. In doing so, however, the Court suggested that Miranda warnings would not be sufficient “if the reference to the right to appointed counsel was linked [to a] future point in time after the police interrogation.” 453 U.S. at 360 , 101 S.Ct. 2806 (emphasis added). In Eagan, the Court explained that “the vice referred to in Prysock was that such warnings would not apprise the accused of his right to have an attorney present if he chose to answer questions.

The warnings in [Eagan’s] case did not suffer from that defect[,]” however, because they told Eagan that he had a right to counsel before the police asked him any questions and that he had a right to stop answering questions until he could talk to a lawyer. 492 U.S. at 205 , 109 S.Ct. 2875 . Returning to the instant case, we must, as the Supreme Court explained in Eagan, assess the advisements given to Rush in their totality. By means of advisement 2, Rush was told orally and in writing that she had “the right to talk to a lawyer before [being] asked any questions and to have a lawyer with [her] while [she was] being questioned.” She then was informed, by means of advisement 3, also orally and in writing, that if she could not afford a lawyer, one would be provided for her at some time, at no cost. Under the holdings in Eagan and Prysock , the latter advisement did not violate Miranda because the warnings as given told Rush in straightforward language that she had a right to talk to a lawyer before being questioned and to have a lawyer present during questioning.

Nothing in advisement 2 sug ²⁸⁰ gested that the rights being communicated only would obtain if Rush could afford a lawyer, or would differ depending upon indigency. Advisement 3, as altered by the words “at some time[,]” was not inconsistent with the rights communicated in advisement 2. Its message, stated separately from advisement 2 because its topic was not the same, was that, if Rush decided that she wanted a lawyer, i.e., to exercise the right to a lawyer communicated in advisement 2, but she did not have the resources to pay for a lawyer, she would be given a lawyer at no cost and at some time. As in Eagan, the “at some time” language in advisement 3 was added in an attempt to accurately describe the procedure for appointment of counsel in Prince George’s County — i.e., that Rush was entitled to a lawyer, if she wanted one, for free, but that her court-appointed lawyer would not “magically appear” the very moment she made the request.

Read objectively, this message, unrelated to advisement 2, did not tell Rush (as she now argues) that, if she indeed asked for a lawyer right then, she nevertheless would have to undergo questioning without a lawyer until her lawyer arrived “at some time.” On this point, Rush argues that her case is distinguishable from Eagan and Prysock , because Detective Jernigan actually asked her a few questions before advising her of her rights and, by doing so, “created the impression that the interrogation had begun and the advice-of-rights had no bearing on [Rush’s] ability to stop [the interrogation].” The record does not support this argument. Before advising Rush of her rights, Detective Jernigan posed some preliminary questions that quite plainly were meant to orient Rush (“Do you know why you’re here?”) and to determine whether she had any first-hand familiarity with the Miranda warnings before he gave them to her (“You ever been arrested before ... ?”). When Rush answered the first question in the negative, the detective told her that she was there because he wanted to talk to her about the killing of Mrs. Caniglia, and asked whether she had “any problems ²⁸¹ talkin’ to me?” — to which she answered “No. That’s fine.... Anything you wannna know.” And when Rush responded that she had never been arrested before, the detective began the warning process, observing that she probably was aware, from television, that he needed to advise her of her constitutional rights before he could ask her any questions, and to give her the opportunity to decide whether she wanted to talk to him at all.

He then proceeded to do so. These questions were introductory in nature, posed as a prelude to advising Rush of her rights, and were communicated with the warning that it was going to be Rush’s decision whether to speak to the police. The questions did not say or imply that Rush had no choice but to continue speaking. The only other thing that Detective Jernigan said to Rush before advising her was, “I understand you used to work for [the Caniglias] at one time or — know ...

Anthony?” Rush did not respond directly to whether she knew Antonio, saying only that she “used to live with them” and “used to work for them about three years ago.” Again, this question was asked to orient Rush as to why the detective wanted to question her at all, and did not communicate that she had no choice but to answer his questions, regardless of the rights she was about to be informed of. This brief, introductory pre-Miranda questioning does not meaningfully distinguish the case at bar from Eagan. It is significant, moreover, that the remarks Rush made while the Miranda warnings were being given, and subsequently during the interview, evidence no confusion about her right to counsel and show that she was willing to speak to the police at the outset of the interview and as it progressed. Rush affirmatively stated that she was willing to talk to Detective Jernigan without a lawyer; and in so doing, she said nothing to suggest that she thought she had no choice in the matter.

During the advisements, Rush questioned whether she “needed” a lawyer, i.e., whether it would be best for her to have one, which prompted Detective Jernigan to repeat the ²⁸² advice that that was her decision and that she could make that decision at any time, and any questioning would cease. A cautionary note is in order about Detective Jernigan’s language addition to the advice of rights form, however. The benefit of having a standard Miranda advisement form is that the substance of the information in it, and the order in which the pieces of information are to be communicated, is thought out in advance, with input from counsel and when there is time to ensure that all the advisements required by Miranda are fully stated, in a clear and orderly fashion; and there is consistency in delivery, so that all suspects are advised in the same way and the confusion that can accompany improvisation is kept to a minimum, if not eliminated entirely. It is generally not helpful for an individual officer to take editorial license with an advisement form, to add information in anticipation of often-asked follow-up questions.

For the reasons we have explained, we hold that, under the controlling Supreme Court authority, and given the particular circumstances surrounding this interrogation, the circuit court erred in ruling that Rush was not advised of her rights in accordance with Miranda , and in granting the motion to suppress her statements from evidence on that ground.

II

Voluntariness Ordinarily, having decided that the circuit court erred by suppressing Rush’s statements on Miranda grounds, our inquiry would end. We would vacate the court’s suppression ruling and remand the case for further proceedings. As noted, however, Rush asks that we address the alternative voluntariness argument she advanced unsuccessfully below. She argues that her statements were induced by improper promises and threats, and therefore were involuntary and subject to suppression, even if Miranda was complied with; and that the circuit court erred in ruling to the contrary.

She maintains that this Court has jurisdiction to ²⁸³ review the circuit court’s decision on the issue of voluntariness and uphold that court’s suppression ruling on the alternative involuntariness ground. 1 1. Jurisdiction to Review In Maryland, “[a]ppellate jurisdiction is established by ‘constitutional provisions, statutory provisions, and rules; jurisdiction cannot be conferred by consent of the parties.’ ” Shofer v. Stuart Hack Co., 107 Md.App. 585, 596 , 669 A.2d 201 (1996) (quoting Pearlstein v. Maryland Deposit Ins., 79 Md.App. 41, 48 , 555 A.2d 528 (1989)). See also Blocher v. Harlow, 268 Md. 571, 578 , 303 A.2d 395 (1973). The general grant of appellate jurisdiction to this Court, in C J sections 12-301 and 12-308, extends to appeals taken from final judgments.

It is a corollary to the general rule that an interlocutory order, not being a final judgment, is not appeal-able. Nnoli v. Nnoli, 389 Md. 315, 324 , 884 A.2d 1215 (2005). Rather, an immediate appeal of such an order only may be taken when the right to such an appeal has been created by statute or when, by operation of the collateral order doctrine, ²⁸⁴ the interlocutory order is treated as final. 2 Shofer, supra, 107 Md.App. at 592-93 , 669 A.2d 201 . See also In re Billy W., 386 Md. 675, 688-89 , 874 A.2d 423 (2005).

A pre-trial ruling excluding evidence in a criminal case is an interlocutory order that, ordinarily, like any other interlocutory ruling, is not subject to immediate appeal, and only may be challenged, if at all, by the defendant in an appeal from a judgment of conviction, which of course is a final judgment. See Bruno v. State, 332 Md. 673, 688 , 632 A.2d 1192 (1993) (criminal defendant entitled to appeal after a final judgment of conviction). By chapter 493, Laws of 1982, the General Assembly enacted Senate Bill 39, carving out an exception to the rule that suppression rulings are not subject to immediate appeal. That legislation, now codified at CJ section 12-302(c)(3), grants the State a limited right of appeal to challenge a decision, made before trial, to exclude evidence from trial.

See Lohss v. State, 272 Md. 113, 116-17 , 321 A.2d 534 (1974) (holding, prior to enactment of CJ 12-302(c)(3), that State had no right to appeal decision to grant a motion to suppress evidence); McNeil v. State, 112 Md.App. 434, 448 , 685 A.2d 839 (1996) (discussing the history of the State’s right to interlocutory appeal); Raimondi, supra, 8 Md.App. at 470, 261 A.2d 40 (reaffirming, prior to enactment of CJ section 12-302(c)(3), the “long recognized [ ] principle that an appeal in a criminal case is premature until after final judgment, viz., that appeals from interlocutory orders of the trial court in criminal cases are not allowed”); Pearce, supra, 8 Md.App. at 478, 261 A.2d 39 . The legislative objective of SB 39 is to afford the State, in a criminal case, a vehicle to challenge a pre-trial ruling excluding critical evidence so that, if the ruling were erroneous, the ²⁸⁵ error could be corrected before jeopardy would attach. Without such a right of immediate appeal, the State has no meaningful opportunity for error correction, because under double jeopardy principles and the developed case law on verdicts of acquittal the State cannot appeal from a final judgment in favor of the defendant. As a memo in the bill file states: [SB 39] allows the State to appeal from a pretrial ruling by the Court to exclude evidence obtained in violation of the defendant’s constitutional rights.

The bill is aimed at those cases in which the Judge excludes a defendant’s confession, physical evidence (such as drugs), or any evidence which is at the heart of the State’s case. The State does not now have the right to appeal the trial court’s ruling on pretrial evidentiary motions. The trial court can make errors on excluding evidence which effectively terminate the prosecution. If these errors can’t be appealed, the case is over at that point and the State can do nothing about it.

In its present iteration, the “State’s appeal” statute provides, in relevant part: In a case involving a crime of violence ...., the State may appeal from a decision of a trial court that excludes evidence offered by the State or requires the return of property alleged to have been seized in violation of the Constitution of the United States, the Maryland Constitution, or the Maryland Declaration of Rights. CJ § 12-302(c)(3)(i). The statute imposes strict conditions upon the right of appeal it creates. An appeal is permitted only when the evidence suppressed constitutes “substantial proof of a material fact in the proceeding.” CJ § 12-302(c)(3)(iii).

The State must note the appeal “no more than 15 days after the decision has been rendered” and “before jeopardy attaches to the defendant[,]” CJ § 12 — 302(c)(3)(a); ²⁸⁶ and the State must certify that the appeal is not being taken “for purposes of delay[.]” CJ § 12 — 302(c)(3)(iii). In addition, the consequences for the State of pursuing such an appeal unsuccessfully can be severe. In all but homicide cases, if the State does not prevail on appeal, it must dismiss all charges against the defendant, and cannot prosecute the defendant on “those specific charges or on any other related charges arising out of the same incident.” 3 CJ § 12-302(c)(3)(iv). The statute further provides that, if this Court does not render a decision within 120 days from the date the record is filed, the motion court’s decision stands. 4 CJ § 120-302(e)(3)(iii).

In the instant case, we must determine the scope of the matters open for consideration on appellate review of a pre-trial ruling suppressing evidence, in a State’s appeal under CJ section 12-302(e)(3). More specifically, we must decide whether we have jurisdiction to review an alternative ground for suppressing that same evidence, when that alternative ground was raised, but rejected, below. This is a novel issue. As always, the starting point for statutory interpretation is the language of the statute itself.

Reier v. State Dep’t of Assessments and Taxation, 397 Md. 2, 26 , 915 A.2d 970 (2007). In pertinent part, CJ section 12-302(c)(3) grants the State a right of appeal from “a decision of a trial court that excludes evidence offered by the State[.]” This language creates appellate jurisdiction to review the circuit court’s suppression decision, but does not further define the scope of appellate review. Of necessity, when the circuit court has decided to suppress evidence on more than one ground, the scope of appellate review covers each ground on which the ²⁸⁷ suppression ruling was based. See, e.g., State v. Tolbert, 381 Md. 539 , 850 A.2d 1192 (2004) (circuit court suppressed confession based upon a Miranda violation and a finding that the confession was involuntary; Court of Appeals addressed both grounds, holding that the court erred in suppressing the confession on each ground).

In the case at bar, however, the motion court accepted one ground for suppression and rejected the other. Read narrowly and in its most specific sense, review of a “decision of a trial court [to] exclude[] evidence” means a consideration by the appellate court of the circuit court’s suppression decision on the ground (or grounds) on which that ruling was made, not on another ground (or grounds) on which the decision was not made. Yet, a more expansive but just as reasonable reading of that same operative statutory language would encompass a general consideration of the suppression ruling, not only on the ground relied upon by the circuit court but also on any alternative ground (or grounds) that was litigated, but rejected, below. The language itself neither defines nor gives a clear answer to the scope of review question.

In another context, the Court of Appeals has narrowly construed CJ section 12-302(c)(3). In Derry v. State, 358 Md. 325 , 748 A.2d 478 (2000), the question before the Court was whether the State could appeal a pre-trial decision to suppress evidence for violation of the Maryland Wiretapping and Electronic Surveillance Act. 5 Adopting a literal reading of the statutory language, the Court held that CJ section 12-302(c)(3) only permits an immediate appeal from an order suppressing evidence on constitutional grounds; it does not permit such an appeal from a ruling suppressing evidence for violation of a statute. The Court reasoned that a restrictive reading of the right of appeal created by CJ section 12-302(c)(3) to permit only “constitutionally based exclusions of evidence is more conso ²⁸⁸ nant with the long-time unavailability of interlocutory appeals that served as precedent to the statute’s original passage in 1982.” Id. at 340 , 748 A.2d 478 . The Court observed: Prior to [1982], Maryland law afforded the State no opportunity to pursue an interlocutory appeal in a criminal case.

It was against this backdrop that the General Assembly determined to create a right of interlocutory appeal for the State in only a limited number of criminal prosecutions while explicitly restricting this right in other ways. Because, again, evidentiary rulings arise innumerably during litigation between the State and criminal defendants, bestowing upon the prosecution the right to challenge every such ruling, even with the proviso that all other prerequisites within 12-302(c)(3) must be satisfied, would reflect an expansiveness directly contrary to the Legislature’s ostensibly cautionary approach. We therefore believe the more reasonable interpretation of § 12-302(c)(3) is that its limitation to constitutional issues, like all other limitations within the statute, applies to every exercise by the State of its right to interlocutory appeal. Id. at 340-41, 748 A.2d 478 (emphasis added).

It also is noteworthy to our analysis of the scope of appellate review issue that the General Assembly has chosen not to create a parallel vehicle for immediate appeal of pretrial suppression rulings for criminal defendants. To the contrary, the General Assembly has rebuffed efforts to grant criminal defendants a concomitant right to immediate review of decisions denying pretrial suppression motions. 6 Thus, a criminal defendant has no right to immediately appeal a circuit court’s decision not to suppress evidence, and has no right to ²⁸⁹ pursue a cross-appeal in a State’s appeal under CJ section 12-302(c)(3). This is consistent with the statutory objective of equalization; the criminal defendant, unlike the State, is not without remedy if inculpatory evidence is erroneously admitted at trial, as he may raise the error on appeal after a final judgment of conviction. See Raimondi, supra, 8 Md.App. at 470-71, 261 A.2d 40 .

See also Derry, supra, 358 Md. at 340-41 , 748 A.2d 478 ; and McNeil, supra, 112 Md.App. at 452 & n. 9, 685 A.2d 839 (discussing the legislative intent behind CJ section 12-302(c)(3)). What little direct Maryland precedent there is would seem, therefore, to militate in favor of the most narrow interpretation of the State’s right to appeal a decision to suppress evidence as not including a challenge by the defendant to the court’s unfavorable ruling on an alternative ground. On the other hand, the general principles that guide the scope of appellate review, although developed in the context of appeals from final judgments, would seem to have equal application in an interlocutory appeal of this sort; and if applied would support a more expansive interpretation of the “decision of a trial court that excludes evidence” language at issue here. It is well established in Maryland that, in an appeal from a final judgment, the appellate court may affirm the circuit court’s decision on any ground adequately shown by the record.

Paolino v. McCormick & Co., 314 Md. 575, 579 , 552 A.2d 868 (1989); Joseph H. Munson Co. v. Sec’y of State, 294 Md. 160, 167-78 , 448 A.2d 935 (1982), aff'd, 467 U.S. 947 , 104 S.Ct. 2839 , 81 L.Ed.2d 786 (1984); Offutt v. Montgomery County Bd. of Educ., 285 Md. 557 , 564 n. 4, 404 A.2d 281 (1979). This principle is why, in an appeal from a final judgment, the appellee, without noting a cross-appeal, may argue as a ground for affirmance any matter that was tried and decided against him. Health Servs. Cost Review Comm’n v. Holy Cross Hosp., 290 Md. 508 , 431 A.2d 641 (1981).

See also Becker v. Crown Cent. Petroleum Corp., 26 Md.App. 596, 618-19 , 340 A.2d 324 (1975) (stating that, when challenged matters were tried and decided below and presented by the ²⁹⁰ appellee as alternative arguments, they are properly before the appellate court, even though no cross-appeal was filed). The appellate court’s function on review is to determine whether the lower court’s ruling was correct, not whether it was correct for the particular reason given by the judge who made it. See Robeson v. State, 285 Md. 498, 502 , 403 A.2d 1221 (1979) (recognizing that a trial court may be right, but for the wrong reasons). 7 All of the federal courts of appeal that have been called upon to construe 18 U.S.C. 3731, which is the federal analog to CJ section 12-302(c)(3), 8 and indeed was the model for the Maryland statute, have applied this general scope of appellate review principle and have held that, under the “umbrella” jurisdiction of the government’s statutory right to an immediate appeal from a district court’s pre-trial ruling suppressing certain evidence, the defendant can assert any alternative ground, supported by the record, to uphold the suppression ruling.

See United States v. Moody, 485 F.2d 531, 534 (3rd Cir.1973) (“the defendant can raise issues with regard to findings and rulings relevant to [the suppression] order under the umbrella of the government’s appeal”); United States v. Halbert, 436 F.2d 1226, 1227 (9th Cir.1970) (same). ²⁹¹ See also United States v. Valle Cruz, 452 F.3d 698, 705 (8th Cir.2006)(holding that in section 3731 appeal appellate court had jurisdiction to consider the defendant’s alternative suppression argument that was rejected below because “reasons of judicial economy” made it sensible to do so); United States v. Cunningham, 113 F.3d 289, 295 (1st Cir.1997) (holding that, in section 3731 appeal challenging suppression of evidence, appellate court had jurisdiction to “uphold a judgment based on a ground rejected by the district court”); United States v. Shameizadeh, 41 F.3d 266, 267 (6th Cir.1994) (ordering the dismissal of defendant’s cross-appeal, but noting that “a defendant may present, as part of his brief in the government’s appeal, any arguments he may have advanced in the district court which would provide an alternative basis for affirming the order of suppression” even though he “may not assert those arguments as part of [a] separate appeal[ ] or raise any arguments as to evidence not ordered suppressed”); United States v. Swarovski, 557 F.2d 40, 49 (2nd Cir.1977) (holding that in section 3731 appeal the appellate court had jurisdiction to consider an “independent” ground that could support the district court’s suppression order); United States v. Finn, 502 F.2d 938, 940 (7th Cir.1974)(holding that in a section 3731 appeal, the appellate court not only has jurisdiction to uphold the suppression ruling on an alternative ground advanced and rejected below but also has jurisdiction to uphold the suppression ruling on an alternative ground not made below, if the record is sufficiently developed to permit adequate review). The one state supreme court that has considered the scope of appellate review in a state’s immediate appeal from a pretrial suppression ruling likewise has held that the appellate court has jurisdiction to affirm the suppression ruling on an alternative ground rejected by the lower court. In People v. Johnson, 208 Ill.2d 118 , 281 Ill.Dec. 38 , 803 N.E.2d 442 (2003), the circuit court granted the defendant’s pre-trial motion to suppress statements she made to the police, on the ground that her state constitutional right to counsel had been violated. In an immediate appeal permitted by statute, the State challenged that ruling.

The supreme court affirmed the suppres ²⁹² sion order on the alternative ground, raised and rejected below, that the police had arrested the defendant without probable cause, and that her statements were the fruit of that illegal arrest. See Brown v. Illinois, 422 U.S. 590 , 95 S.Ct. 2254 , 45 L.Ed.2d 416 (1975). Characterizing the appellate issue before it as “the correctness of the circuit court’s decision to suppress the two statements defendant made to [the police,]” the court rejected the State’s argument that “an appellate court’s jurisdiction on appeal from an order suppressing evidence is limited to the specific rationale relied upon by the circuit court.” People v. Johnson, supra, 208 Ill.2d at 131-32 , 281 Ill.Dec. 38 , 803 N.E.2d 442 . The court concluded, to the contrary, that it is not proper to “define appellate jurisdiction in terms of a legal rationale without any recognition of the fundamental principle that it is the correctness of a lower court’s result which is at issue on appeal and not the lower court’s reasoning.” Id. at 134 , 281 Ill.Dec. 38 , 803 N.E.2d 442 .

The Illinois Supreme Court further found unpersuasive the state’s argument that appellate consideration of an alternative but rejected ground for suppression is tantamount to permitting the defendant to take an illegal interlocutory cross-appeal. The court reasoned that that would be so if the alternative ground was a “new issue[ ] or defense” on appeal; but when the alternative ground simply was one of the arguments presented to the court below in support of suppressing the evidence, and the factual basis for the alternative ground was fully developed in the suppression hearing, there is no reason why the defendant, as the appellee in an interlocutory appeal, cannot argue that alternative ground, just as an appellee in an appeal from a final judgment can argue any