State v. Tolbert

RAKER, Judge. In this interlocutory appeal by the State, 1 the issue presented is whether the Circuit Court for Anne Arundel County erred in granting the defendant’s motion to suppress his statements on the grounds that the statements were in violation of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966) and that the statements were involuntary. This Court issued its Per Curiam Order on February 11, 2004, reversing the Order of the Circuit Court and remanding the ⁵⁴³ matter for trial. 2 State v. Tolbert, 379 Md. 424 , 842 A.2d 63 (2004). We now give the reasons for that Order.

I. Terrence Tolbert, appellee, was indicted by the Grand Jury for Anne Arundel County for the offenses of first degree murder, second degree murder, manslaughter, armed carjacking, armed robbery, conspiracy to commit murder, conspiracy to commit armed carjacking, conspiracy to commit armed robbery, and use of a handgun in the commission of a felony. Prior to trial, he filed a motion to suppress all oral and written statements that he made to the police on the ground that the statements were obtained in violation of the United States Constitution, Maryland Declaration of Rights, and Maryland Rules. The Circuit Court for Anne Arundel County held an evidentiary hearing. We set forth the facts from the record of the suppression hearing.

Straughan Lee Griffin, a resident of Annapolis, was shot and killed in front of his home on September 19, 2002. His assailant[s] shot him in the head, stole his automobile, and ran over his body as they fled from the scene. The police became interested in appellee as a possible witness or suspect because they had received information that the suspects in the murder were two black males, one of whom had a missing arm; appellee is a black male who is missing one arm. On October 16, 2002, several officers went to appellee’s home, where he lived with his mother.

Corporal Thomas Hannon explained that the police wanted to talk to appellee and his mother about the homicide. Appellee agreed to go to the police station and answer questions. During the questioning, which lasted approximately half an hour, appellee denied that he knew any ⁵⁴⁴ thing about the murder and provided an alibi. He returned home.

Shortly after 11:00 p.m. that night, Detective David Cordle, chief investigator for the Anne Arundel County State’s Attorney’s Office, and two other officers went to appellee’s home and offered to place his family in a hotel for the evening due to threats made to his family by the family of another suspect. Appellee’s mother declined the offer. Detective Cordle asked if appellee would be willing to talk about the murder case, and appellee responded that he was not interested at that time. The police then left.

The following day, Detective Cordle contacted appellee’s mother and asked if she would meet with him. Appellee’s mother and sister went to the State’s Attorney’s Office that afternoon and met with Detective Cordle and Detective Kevin Lloyd. The detectives asked appellee’s mother for her help in getting appellee to cooperate and talk with the police. Appellee’s mother said that she could not force her son to talk to them but that she would encourage him to do so.

Detective Cordle set up another meeting with appellee’s mother for the following week. At that meeting, on October 24, 2002, Detectives Cordle and Lloyd discussed the possibility of appellee taking a polygraph examination and persuaded appellee’s mother to bring him into the State’s Attorney’s Office the following day. On October 25, 2002, appellee and his mother met with Detective Cordle, Detective William Johns, and Corporal Han-non at the State’s Attorney’s Office. No Miranda warnings were given.

Detective Johns asked appellee several questions. At one point, appellee’s mother interrupted to inquire whether she should get an attorney for her son. Detective Cordle told her that “she could do what she had to do.” Detective Cordle asked appellee whether he would be willing to take a polygraph test to verify his unwavering claim that he had no involvement in the murder. Although at first reluctant, appellee agreed to take the polygraph examination. ⁵⁴⁵ Arrangements were made for Corporal Lloyd White to administer the polygraph test at the Maryland State Police Barracks, about one mile away.

Appellee’s mother drove him to the Barracks, and Detective Johns drove there separately. When Corporal White arrived, he spoke briefly with Detective Johns in the lobby and then escorted appellee to the polygraph suite in the basement. Appellee’s mother left to do an errand. Corporal White explained to appellee that the test would take approximately two hours and consisted of three phases — a pre-test interview, the instrumentation phase, and a post-test interview.

Appellee expressed reluctance about taking the test. After Corporal White told him that he “did not want to make him do anything he didn’t want to do,” appellee said that he did not want to take the test. Corporal White then escorted him back to the lobby. Once in the lobby, appellee discovered that his mother was not present.

After some time passed, appellee changed his mind about taking the polygraph test and told Corporal White that he wanted to get it over with. Corporal White then took appellee back to the polygraph suite. Pursuant to Maryland State Police policy for the administration of polygraph examinations, Corporal White then advised appellee of his Miranda rights. Appellee signed a waiver of rights form at 6:05 p.m.

He also signed the State Police polygraph request and release form. 3 After asking appellee some background information about his education, employment, and health, Corporal White went over the polygraph questions with appellee and then administered the actual test. When the instrumentation phase of the test was completed, Corporal White took appellee upstairs to another office and ⁵⁴⁶ did not give additional Miranda warnings. Corporal White told appellee that he had shown deception during the test, and appellee responded by asking whether the polygraph indicated that he had shot the victim. Corporal White asked appellee why he would ask such a question and told him that, if appellee had any involvement in the murder, he should say so.

Appellee was quiet for several minutes and then admitted that he was more involved than he had said during the test. He then spoke for about five minutes, making a statement implicating himself in the murder and finally stating, “I guess it’s a robbery gone bad.” After appellee made this statement, Corporal White left the room and summoned Detective Johns, telling him that appellee had confessed. Corporal White returned to the office with Detective Johns, and no additional Miranda warnings were given by either officer. Corporal White asked appellee if he would repeat his story to Detective Johns.

Appellee nodded yes and repeated what he had told Corporal White. Following his confession, appellee was placed under arrest and transported to the police station. At the station, appellee spoke with Detective Johns and signed the notes taken by Detective Johns during the interview. The Circuit Court ruled on the motion on September 4, 2003.

The court found that appellee voluntarily went to the State’s Attorney’s Office and to the State police barracks and that, up until the time that appellee made the first set of statements to Corporal White, he was free to leave and a reasonable person under the circumstances would have felt free to leave. The court found that the police had made no promises to appellee in exchange for his taking the polygraph test and had not acted in a coercive manner. Considering the totality of the circumstances, the court held that appellee’s statement to Corporal White was voluntary and not the product of any custodial interrogation. The court thus denied the motion to suppress the first statement. 4 ⁵⁴⁷ The court determined that appellee was in custody as of the time that Corporal White summoned Detective Johns and they asked him to repeat the statement he had made to Corporal White.

The court explained that “there is no doubt in my mind that a reasonable person would not have believed that they were free to leave having just indicated that they had, or made an incriminating statement that they had killed someone.” Having determined that appellee’s status changed from noncustodial to custodial, the court held that the police should have repeated the Miranda warnings and that the “premature” administration of Miranda warnings, i.e., the issuance of warnings prior to the time appellee was in custody, was ineffective. The court granted the motion to suppress the statements appellee made to Detective Johns — the second and third statements. Regarding the voluntariness of the statements made to Detective Johns, the court stated as follows: “[H]e was there for a polygraph. He agreed to go and nobody coerced him or threatened him.

But he agreed to go there for the purpose of the polygraph. I don’t believe that that statement was voluntary. I believe he should have been given his Miranda warnings. He was not.

The circumstances were different. He may have been, it’s one thing when you are about to take a polygraph examination. It’s a totally different circumstance once you have just made an incriminating statement to have two detectives, officers, come back and further question him.” The prosecutor requested the Circuit Court to clarify its ruling and to make clear whether the ruling related only to Miranda or whether it also covered voluntariness. The court elaborated as follows: “[A]s I indicated, I think considering the totality of the circumstances, the age, the intelligence, the experience and ⁵⁴⁸ the mental capacity and the extent of the interrogation, although there was no one that threatened this individual, I think I indicated that.

There is nothing about the tactics and the inducement. There was no coercive activity on the part of the police. But I think considering the totality of the circumstances this statement was not voluntary.” The State noted a timely appeal to the Court of Special Appeals. We issued a writ of certiorari on our own initiative prior to consideration of the case by that court. 378 Md. 613 , 837 A.2d 925 (2003).

II

On appellate review of the grant or denial of a motion to suppress, this Court looks to the record of the suppression hearing. See White v. State, 374 Md. 232, 249 , 821 A.2d 459, 469 (2003). The first-level factual findings of the suppression court and the court’s conclusions regarding the credibility of the testimony must be accepted by this Court unless clearly erroneous. See Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239, 1240 (1990).

The evidence is to be viewed in the light most favorable to the prevailing party. See State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439, 444 (2003). We “undertake our own independent constitutional appraisal of the record by reviewing the law and applying it to the facts of the present case.” See White, 374 Md. at 249 , 821 A.2d at 469 (citing Riddick, 319 Md. at 183 , 571 A.2d at 1240 ).

III

The State argues that Tolbert was advised of his Miranda rights and those warnings, given to him at the police barracks prior to the polygraph examination, performed the constitutionally mandated function even though he was advised of his rights before he was in custody. It is the State’s position that, under the totality of the circumstances, there was no need for Detective Johns or Corporal White to re-advise appellee of his previously waived Miranda rights. The ⁵⁴⁹ State points out that appellee’s three statements were made within two and a half hours of the initial advice of rights in an uninterrupted sequence of events, and all three statements were substantially the same. The State argues that nothing occurred during the two and a half hours to dilute the efficacy of appellee’s initial knowing and voluntary waiver.

Appellee’s claim that his statements are inadmissible because he was not advised of his Miranda rights depends upon his view as to the significance of the timing of the advice of rights. He contends that even though he had been fully advised of his Miranda rights prior to taking the polygraph examination, and he freely and voluntarily waived those rights, the police nonetheless were required to repeat the Miranda warnings once his status changed from noncustodial to custodial and they intended to interrogate him. Appellee claims that an individual cannot waive a right that has not yet attached, and, therefore, the police in the instant case could not rely upon appellee’s pre-custodial Miranda waiver. It is hard to find any adult today who has not in some way heard of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966).

The warnings mandated by that decision are well known and require that when an individual is taken into custody, in order to protect the privilege against self-incrimination, procedural safeguards must be employed. Id. at 478-79 , 86 S.Ct. at 1630 , 16 L.Ed.2d at 726 . The police must warn any person subjected to custodial interrogation that he has a right to remain silent, that any statement he does make may be used in evidence against him, and that he has the right to the presence of an attorney, either retained or appointed. Id. at 479 , 86 S.Ct. at 1630 , 16 L.Ed.2d at 726 .

In the absence of these warnings, or their substantial equivalent, the prosecution is barred from using in its case-in-chief any statements obtained during that interrogation. Id. Although the Court stated that the warnings must be given prior to custodial interrogation, the Court did not indicate whether or when the warnings ever must be renewed. ⁵⁵⁰ It is important to keep in mind that which Miranda was designed to protect — the privilege against self-incrimination. Whether a suspect is informed of his or her rights before the suspect has been taken into custody is not determinative of whether the warnings are constitutionally sufficient.

When “custody” has attached, and when noncustodial questioning becomes “custodial” interrogation, is not always easily discernible by the police. See State v. Burge, 195 Conn. 232 , 487 A.2d 532, 543 (1985) (observing that the precise moment when police questioning turns into custodial interrogation requiring Miranda warnings is often difficult to discern). Although ambiguity as to when custody attached is not sufficient to permit a statement made after custodial interrogation commences, it would be elevating form over substance to conclude that good faith early warnings are per se ineffective, even when those warnings are “sufficiently proximate” to actual custody to inform a person of his or her constitutional rights. Id.

It appears to be the almost unanimous view, with the exception of West Virginia, 5 that early, noncustodial Miranda warnings may be effective and re-warnings are not ipso facto required when formal custody attaches. See, e.g., People v. Dela Pena, 72 F.3d 767, 769 (9th Cir.1995) (Miranda warnings given at night were effective the following day, approximately fifteen hours later, and defendant’s subsequent custodial status was not the “determining factor” in the analysis); Jarrell v. Balkcom, 735 F.2d 1242, 1254 (11th Cir.1984) (no violation of defendant’s rights by the failure to reissue Miranda warnings at the time of arrest, notwithstanding that defendant confessed approximately three hours after receiving warnings when not in custody and by a different officer); Upton v. State, 343 Ark. 543 , 36 S.W.3d 740, 744 (2001) (Miranda warnings and waiver were continually effective even though defendant’s ⁵⁵¹ status changed from that of a voluntary, potential witness to that of a suspect in custody); State v. Burge, 195 Conn. 232 , 487 A.2d 532, 543 (1985) (defendant’s waiver of Miranda rights when he was neither a suspect nor in custody was adequate such that his confessions which were made four hours later when he was in custody were admissible); Commonwealth v. Colby, 422 Mass. 414 , 663 N.E.2d 808, 810 (1996) (further Miranda warnings were not required after defendant failed polygraph examination and his status then became custodial); State v. Monroe, 142 N.H. 857 , 711 A.2d 878, 886-87 (1998) (assuming that post-polygraph interrogation became custodial, pre-polygraph Miranda warnings were sufficient to protect defendant’s Fifth Amendment right against self-incrimination); State v. Rupe, 101 Wash.2d 664 , 683 P.2d 571 , 581 n. 4 (1984) (no renewal of Miranda warnings necessary where defendant “was effectively advised of his rights shortly before becoming technically in custody”). In Wyrick v. Fields, 459 U.S. 42 , 103 S.Ct. 394 , 74 L.Ed.2d 214 (1982), the United States Supreme Court articulated a “totality of the circumstances” test for determining whether a single set of Miranda warnings is sufficient in the context of police interrogation that does not immediately follow those warnings. The defendant in that case was arrested, charged with rape, and released on his own recognizance.

Approximately three months later, after consulting with an attorney, the defendant requested a polygraph examination. The defendant was advised of and waived his Miranda rights prior to taking the exam. At the conclusion of the exam, the polygraph examiner told the defendant that he had shown deception, and the defendant made inculpatory statements. Those statements were used against him at trial, and he was convicted.

On direct appeal, Fields unsuccessfully challenged the admissibility of the statements he made after he was told that his responses during the test were deceptive. Id. at 45, 103 S.Ct. at 395 , 74 L.Ed.2d at 217 . In a federal habeas proceeding, the United States Court of Appeals for the Eighth Circuit reversed, finding that the defendant had not been provided ⁵⁵² “ ‘meaningfully timed Miranda warnings’ ” and the State had failed to prove that the defendant knowingly and intelligently waived his right to have counsel present at the post-test interrogation. Fields v. Wyrick, 682 F.2d 154, 160-61 (8th Cir.1982).

The Supreme Court reversed, rejecting the Eighth Circuit’s per se rule that the police must re-advise a suspect of his rights before questioning him at the same interrogation about the polygraph test’s results. Wyrick, 459 U.S. at 48-49 , 103 S.Ct. at 396-97 , 74 L.Ed.2d at 219 . Such a requirement would be “an unjustifiable restriction on reasonable police questioning.” Id. at 49 , 103 S.Ct. at 397 , 74 L.Ed.2d at 219 . The Court stated that “Fields validly waived his right to have counsel present at ‘post-test’ questioning,