Thomas v. State

ADKINS, J., concurring and dissenting. Petitioner Konnyack Thomas was invited to a police station by a phone call from a police officer, regarding one of his children. The officer did not name which child. Once at the station, Petitioner was led through a locked door, which could only be opened with a passkey. 1 He was then taken through a second door and into a small room, where the door was closed behind him.

The officers in that room physically placed themselves between Petitioner and the exit door and told Petitioner twice at the very beginning of an hour-long session ²⁹² that the door to that interview room was unlocked. These officers never told Petitioner that he could leave. I agree with the Majority that these circumstances — by themselves — do not mandate custody. Yet, I would find that this lack of custody does not remain constant throughout the encounter.

Within minutes of his arrival, Petitioner was being asked serious questions about sexual encounters with his daughter: Detective Thorpe: Okay. What exactly started in Georgia? Mr. Thomas: Just touching. Detective Thorpe: Touching?

Mutual or just you touching her? Mr. Thomas: Just touching. Detective Thorpe: Touching? What is touching to you?

Because touching can be her masturbating you, touching can be you fingering her. Mr. Thomas: Just touching. Detective Thorpe: Was it both? Mr. Thomas: No. Detective Thorpe: Okay.

Sergeant Birch 2 : Were you touching her? Mr. Thomas: Yes. Sergeant Birch: All right, where were you touching her? Mr. Thomas: Private areas.

Sergeant Birch: Were you touching her breasts? Mr. Thomas: Yes. Sergeant Birch: Were you touching her vagina? Mr. Thomas: Yes.

Sergeant Birch: Touching her butt? Mr. Thomas: No. ²⁹³ Sergeant Birch: Okay. When you touched the vagina and the breasts, was it above the clothing? Mr. Thomas: Yes.

Sergeant Birch: And there were times that it was under the clothing as well, correct? Mr. Thomas: Yes. Sergeant Birch: When you touched under the clothing and touched her vagina, other than rubbing, did you make penetration with your fingers? Mr. Thomas: No. Sergeant Birch: Just rubbing it with your hands on top of it?

Mr. Thomas: Yes. Sergeant Birch: How old was she when it first started? Approximately how old was she? Was she developing yet?

Mr. Thomas: A little. Sergeant Birch: All right. Did she have any pubic hair? I’m trying to get an age.

Mr. Thomas: I don’t know. Sergeant Birch: You don’t remember? So it started with the touching? Mr. Thomas: Yes.

Sergeant Birch: I know it’s difficult for you to talk about it.... Mr. Thomas: I mean, I know where this is going. The questions eventually elicit damning confessions to multiple crimes. As the interaction ended, the officers had Petitioner write and sign a confession.

Then, he was arrested. To me, the moment Petitioner admitted that he touched his daughter inappropriately, the officers no longer had any reason to question the basic truth of the story provided them by the daughter. Thus, the officers had stopped investigating a possible crime and started gathering evidence. Therefore, the moment Petitioner admitted the touching was in his daugh ²⁹⁴ ter’s “[pjrivate areas,” he was in custody and required the safeguards of Miranda.

Whether a suspect is in custody is a question of fact, properly decided by the trial court and only disturbed if clearly erroneous. McAvoy v. State, 314 Md. 509, 515 , 551 A.2d 875, 877-78 (1989) (“Armed with the facts properly found by the trial judge, we must, however, make an independent constitutional appraisal of the record to determine the correctness of the trial judge’s decision concerning custody.”) (citation omitted). The trial judge here had no difficulty finding that Petitioner was in custody: “This was a custodial interrogation. [N]o reasonable person would have thought they could get up and walk out of that room after they confessed to committing a violent crime.” Also important is the trial judge’s determination that the officers were not investigating a crime. Rather, they were gathering evidence to be used against Petitioner.

While it appears that the trial judge considered the situation custodial from the moment Petitioner walked into the station, his primary rationale was that Petitioner never felt free to leave: “I don’t know of any cases ... where a person just gets up and just walks out of a police station or feels that he can. What reasonable person would think that?” Nothing in the record indicates error in his finding. The Majority finds fault with the trial court for not “following] the roadmap provided by Whitfield [v. State, 287 Md. 124 , 411 A.2d 415 (1980), overruled in part by N.Y. v. Quarles, 467 U.S. 649 , 104 S.Ct. 2626 , 81 L.Ed.2d 550 (1984) ] and Owens [v. State, 399 Md. 388 , 924 A.2d 1072 (2007) ].” Op. at 261, 55 A.3d at 689. I submit that the trial court did follow the direction established in these cases.

When ruling, the trial court explained where and when the interview occurred, how many officers were present, how Petitioner was summoned, how he physically arrived, that Petitioner was being questioned as a suspect, and that he was arrested at the conclusion of the interrogation. These are a majority of the factors listed ²⁹⁵ in both Whitfield and Owens. See Whitfield, 287 Md. at 141 , 411 A.2d at 425 ; Owens, 399 Md. at 429 , 924 A.2d at 1095-97 . The Supreme Court, post-Miranda, has worked to clarify the concept and definition of custody.

See, e.g., Stansbury v. California, 511 U.S. 318 , 114 S.Ct. 1526 , 128 L.Ed.2d 293 (1994); Yarborough v. Alvarado, 541 U.S. 652 , 124 S.Ct. 2140 , 158 L.Ed.2d 938 (2004); Maryland v. Shatzer, 559 U.S. 98 , 130 S.Ct. 1213 , 175 L.Ed.2d 1045 (2010). Accordingly, we have done the same. See, e.g., Whitfield, 287 Md. at 124 , 411 A.2d at 415 ; Wiener v. State, 290 Md. 425 , 430 A.2d 588 (1981); McAvoy, 314 Md. at 509 , 551 A.2d at 875 ; Reynolds v. State, 327 Md. 494 , 610 A.2d 782 (1992); Owens, 399 Md. 388 , 924 A.2d 1072 . The custody analysis requires examination of the circumstances surrounding the interrogation.

The ultimate determination of custody depends on whether a reasonable person would feel at liberty to end the interrogation and leave. E.g., Yarborough, 541 U.S. at 662 , 124 S.Ct. at 2148 . I agree with the trial court and Chief Judge Bell that there was custody, although I disagree that the encounter necessarily began as custodial. I would find that — after Petitioner admitted to inappropriate touching — he could not have felt that he was at liberty to end the interrogation.

He was aware that the officers knew the intimate details of his crimes, which were confirmed by his own admissions. He was never told he could leave. His only route of egress was partially blocked by two law enforcement officers. An exterior door was locked with a passkey.

I am not alone in thinking that a police interview that does not start as custodial can end as such. Courts of other jurisdictions have arrived at the same conclusion. For example, the Colorado supreme court has held that a suspect’s initially voluntary appearance may become custodial once the suspect no longer feels free to leave. People v. Algien, 180 Colo. 1 , 501 P.2d 468 (1972).

The defendant in Algien was suspected of arson at a construction project where he worked. Id. at 3 , 501 P.2d 468 . At the insistence of his employer, he agreed to go to the police station to take a polygraph test, ²⁹⁶ which he failed three times. Id. at 5 , 501 P.2d 468 .

When a police officer confronted Algien with the test results and questioned him about the incident, Algien broke down and confessed to setting the fire. The trial court found that “the arson investigation ... reached the accusatory stage when Officer Johnson concluded from the polygraph examination that defendant was not telling the truth, at which time the suspicion of guilt focused on him.” It was at that moment