Warren v. State

WATTS, J. Following a trial held from March 3, 2009, to March 13, 2009, a jury in the Circuit Court for Charles County convicted Kevin Mark Warren, appellant, of one count of first-degree murder (felony murder), two counts of attempted first-degree murder, three counts of first-degree assault, three counts of attempted robbery with a dangerous weapon, three counts of use of a handgun in the commission of a crime, and one count of wearing, carrying, or transporting a handgun. 1 See Md. Code Ann., Crim. Law Art. (“C.L.”) § 2-201 (first-degree murder); C.L. § 2-205 (attempted first-degree murder); C.L. § 3-202 (first-degree assault); C.L. § 3-403 (attempted rob ⁹⁸ bery with a dangerous weapon); C.L. § 4-204 (use of a handgun in the commission of a crime); C.L. § 4-203(wearing, carrying, or transporting a handgun). On September 28, 2009, the circuit court sentenced appellant to life imprisonment for first-degree murder, two life sentences consecutive for attempted first-degree murder, and twenty years’ imprisonment concurrent for use of a handgun in a crime of violence. 2 Appellant noted an appeal raising three issues, which we rephrased and reordered into four: 3 I. Whether the circuit court erred in finding that appellant voluntarily, knowingly, and intelligently waived his Miranda 4 rights before speaking to law enforcement officers?

II

WThether the circuit court erred in allowing the prosecutor to cross-examine appellant about prior statements to other people, which appellant characterizes as “inadmissible testimonial hearsay”?

III

Whether the circuit court deprived appellant of the right to a fair trial by: (A) permitting incorrect testimony which was later corrected by a stipulation; and (B) allowing the prosecutor to cross-examine appellant regarding the invocation of the right to remain silent?

IV

Wdiether the circuit court erred in allowing the prosecutor to make alleged improper remarks during closing and rebuttal argument? ⁹⁹ We answer all four questions in the negative and, therefore, affirm the judgments of conviction. FACTUAL AND PROCEDURAL BACKGROUND On September 17, 2007, appellant was indicted in connection with a robbery and shooting that occurred at Robinson Place in Waldorf, Maryland, that resulted in the death of Briona Porter, a thirteen-year-old girl. Reading of Appellant’s Miranda Rights Prior to trial, appellant moved to suppress statements he made to Detective John Elliott at the Charles County Police Headquarters Building on July 6, 2007. On April 18, 2008, the circuit court conducted a hearing on the motion.

As a witness for the State, Detective Elliott testified as follows: Before I asked [appellant] any questions I read him his Miranda Rights and a right for his Prompt Presentation before a District Court Commissioner. I read word for word from my Rights card and I stated to [appellant], “You have the right to remain silent. Anything you say, can and will be used against you in court. You have the right to consult with a lawyer before answering any questions and to have a lawyer with you during any questioning.

If you cannot afford a lawyer, one will be provided for you. If you want to answer questions now without a lawyer present, you will still have the right to stop answering questions at any time.” The State questioned Detective Elliott, in pertinent part, as follows: [PROSECUTOR:] Okay. Now, after you advised him of these rights, what, if anything did you ask him? [DETECTIVE ELLIOTT:] I asked him if he understood his right [sic] and he said, “yes.” ¹⁰⁰ [PROSECUTOR:] Okay. Let me ask you this.

Are you familiar with individuals under the influence of alcohol? [DETECTIVE ELLIOTT:] Yes sir. [PROSECUTOR:] All right. Did you have, did [appellant] appear to be under the influence of any alcohol? [DETECTIVE ELLIOTT:] No sir, he did not. [PROSECUTOR:] Or any drugs? [DETECTIVE ELLIOTT:] No sir. [PROSECUTOR:] Did he appear to understand you? [DETECTIVE ELLIOTT:] Yes sir. [PROSECUTOR:] Okay. Can you continue with what happened after you advised [appellant] of his Miranda Rights and Right to Prompt Presentment? [DETECTIVE ELLIOTT:] I asked [appellant] where he had been up to the week leading to where he was arrested. [Appellant] explained to me that he had seen his picture on the news Monday or Tuesday, the previous Monday or Tuesday, and that he was wanted for murder, and that he was visiting family. [PROSECUTOR:] Okay. And what else? [DETECTIVE ELLIOTT:] I questioned [appellant] specifically about the murder and the incident which occurred on Robinson Place. [Appellant] said that he was there on the scene when it occurred.

First he said he was by himself, but then he said, no, he was with a person who he identified as Man and Deonte [sic]. And he explained to me that he was on Robinson Place in the area of what they call “the cut”. And while in “the cut” he observed an ice cream truck drive into Robinson Place, he heard a gunshot, everybody ran and he went to, who he identified as, Little Ray’s house. [PROSECUTOR:] Okay. What else occurred during this interview? ¹⁰¹ [DETECTIVE ELLIOTT:] I specifically asked [appellant] if he was responsible for this.

He denied doing the shooting. And he was unable to provide or identify anyone that was responsible for the shooting. [PROSECUTOR:] Okay. Anything else that you can recall? [DETECTIVE ELLIOTT:] At one point during the interview I asked [appellant] to show me the palms of his hands. I asked him what he saw. [Appellant] told me, “fingerprints.” I explained to him, while showing him a picture of a metal cashbox, which was just inside the ice cream truck, the night the incident occurred.

I asked him, “Do you realize the significance of your fingerprints on this cash metal box?” He replied to me that it didn’t look like a metal box to him. As soon as the questioning stopped he didn’t provide an explanation and I didn’t question him any further about that issue. [PROSECUTOR:] Okay. Did there come a time when he indicated that he didn’t want to answer any more questions? [DETECTIVE ELLIOTT:] Yes sir. [PROSECUTOR:] What, if any offers of reward did you make to [appellant?] [DETECTIVE ELLIOTT:] I did not make any. [PROSECUTOR:] What, if any threats did you make to him? [DETECTIVE ELLIOT:] I did not make any threats. [PROSECUTOR:] What, if any inducements did you make to him in order to get him to talk to you? [DETECTIVE ELLIOT:] None at all. Detective Elliott testified that “[a]t about quarter to [one] in the morning [appellant] told me he didn’t want to answer any more questions without a lawyer and I stopped questioning him.” The circuit court ruled orally from the bench, granting the motion, in part, and denying it, in part, as follows: [I] do find Det.

Elliott’s testimony to be credible. That he did in fact read [appellant] his Miranda Rights. He read ¹⁰² from the card. He read both sides of the card; the Miranda Rights and also the Prompt Presentment Rights.

That Det. Elliott stated that he asked the defendant if he understood his rights and he responded, “yes.” Det. Elliott also described how [appellant] did not appear to under [sic] the influence of drugs or alcohol, he appeared to understand his questions when being asked and [appellant] proceeded to give some statements. I find that those statements were voluntary and that the State has met its burden on that.

I do find, however that when [appellant] stated, T don’t want to talk any more,’ or something to the effect, T’m done talking,’ at that point that was his invocation of his right to remain silent and any statements made thereafter, I believe would have required probably a re-Mirandaization or some safeguard. But at this point I find that that was a full invocation of his right to remain silent and anything elicited after this is suppressed. Trial At trial, as a witness for the State, Charlene Woodland testified that she owned and operated an ice cream truck as a business to help raise money to send her daughter to college. Woodland testified that, as of June 29, 2007, she had not yet operated the truck for ice cream sales during 2007.

According to Woodland, that night, after getting the truck’s generator fixed, she took the ice cream truck for a “test drive” and ended up at Robinson Place. Woodland’s thirteen-year-old daughter, Briona, and Woodland’s friend, Tanya Butler, accompanied her in the rear of the truck. Woodland testified that she stopped her ice cream truck at the end of Robinson Place to adjust her side mirrors. According to Woodland, she went in the back of the truck and saw a man, whom she identified at trial as appellant, with a gun in the window.

Woodland testified that Butler said they were being robbed and told her to get the money box. Woodland retrieved the money box, shoved it at appellant, ran back to the driver’s seat, and started driving away. Woodland testified that she héard gunshots, and that Briona screamed “mommy, he hit ¹⁰³ me.” Woodland continued driving until she saw a law enforcement officer, who came to her assistance. Briona was taken from the scene by medical personnel and Woodland testified that this was the last time she saw Briona alive.

During appellant’s cross-examination of Woodland, the following colloquy occurred: [APPELLANT’S COUNSEL]: Well, Ms. Woodland, isn’t it true that you never told anyone that you could recognize the man who shot your daughter? [WOODLAND]: It’s not true. I told the State. [APPELLANT’S COUNSEL]: You’re saying you told one of the State’s Attorneys? [WOODLAND]: Yes, I did. [APPELLANT’S COUNSEL]: You actually ... you didn’t tell the State’s Attorney until after the first trial had already started? [WOODLAND]: No. Before. [APPELLANT’S COUNSEL]: Can we approach, Your Honor? During a bench conference, the prosecutor stated that appellant’s counsel “has confused [Woodland] as to the date.” The circuit court stated that: “We all know that she is confused. She is confused with dates.” The cross-examination resumed, and the following occurred: [APPELLANT’S COUNSEL]: Ms. Woodland, you’re telling us that you told [the prosecutor] that you could recognize the person who shot your daughter, is that correct? [WOODLAND]: I told him yes I could tell him who it was.

The same person who I saw June 29th. [APPELLANT’S COUNSEL]: So, the time you first said that you thought you could recognize the person who shot your daughter was some time when you were in this courthouse, but you were not inside this courtroom? [WOODLAND]: That was not the first time. The first time I could identify him was the night he had the gun in my ¹⁰⁴ face. That’s when I could identify him. I will never forget that face.

Later in the trial, after Woodland’s testimony, the circuit court read the following stipulation to the jury: The State and the Defense have agreed that on May 13th, 2008, the day after the jury trial started in the first trial of this matter, Charlene Woodland, while located in the State’s Attorney in this courthouse [sic] for the first time said that she would be able to identify the individual responsible for the alleged robbery and shooting involving her ice cream truck on June 29th, 2007. These facts are not in dispute and should be considered proven. Tanya Butler testified, as a witness for the State, that on the night of June 29, 2007, she accompanied Woodland and Briona in the truck to obtain gas for the generator. She and Briona were riding in the back of the ice cream truck that Woodland was driving.

According to Butler, the gas station was closed and Woodland said she would show them a place “where there’s a lot of kids where [she goes] to all the time.” Woodland pulled into a “community” and stopped to fix the mirrors on the truck. After the truck was parked, a man, whom Butler identified at trial as appellant, came up to the truck, bought a bag of potato chips, walked away and came right back, pulled out a gun, and demanded money. According to Butler, as she responded to the man, Woodland approached the rear of the truck. Butler told Woodland the man was robbing, them.

Butler corroborated Woodland’s testimony that she gave the man the money box, and the man shot at the truck as they drove away. Butler testified that Briona was shot in the back. Like Woodland, Butler testified that Briona said “mommy, he shot me, mommy.” Butler testified that Briona was “like [her] niece.” As a witness for the State, Roy James Irby testified that while he and appellant were in the same unit at the county jail, appellant discussed the case with him. According to Irby, appellant told him that he had been out “partying, drinking and drugging” with Deante Duckett, and he (appellant) shot at ¹⁰⁵ an ice cream truck.

Irby testified that appellant told him that “I guess you heard, I’ve got a body. And, I [Irby] said a body? You mean a child ... a thirteen year old child. I said, why did you do it?

And, he goes, because I can.” Irby testified that appellant stated “and the ice cream truck came along. It pulled up. And, now he [appellant] was harassing them ... was harassing the people in the truck ... the women in the ice cream truck. And, apparently she didn’t like what was going on.

And, he said she said something and took off. Well, he the[n] demonstrated pulling out a gun and going, boom, boom, boom. And, the of course running.” As a witness for the State, Deante Duckett testified that, on June 29, 2007, he was near Robinson Place drinking alcohol with appellant, who was wearing a black and red Chicago Bulls baseball cap. According to Duckett, appellant went to an ice cream truck, bought a bag of potato chips, and went back to the truck.

Duckett testified that he saw appellant sticking a gun into the truck and asking for money. Duckett testified he saw the truck accelerate and then heard gunshots. Kevin Wise, appellant’s father, testified as a witness for the State, that on July 1, 2007, he saw his son in Washington D.C. Appellant advised Wise that he was being accused of killing a child and was going to go to Charles County to turn himself in. In his own defense, appellant testified that on June 29, 2007, he went to Robinson place to sell drugs.

Appellant testified that he had been wearing a black and red Chicago Bulls hat. According to appellant, five other people, including Duckett, were present and were drinking with him. Appellant testified that he saw a truck coming up Robinson Place and thought that it was law enforcement. Appellant testified that he went to Oakley Drive and then heard gunshots coming from Robinson Place.

State’s Cross-Examination of Appellant During the State’s cross-examination of appellant, the following colloquies occurred: ¹⁰⁶ [PROSECUTOR]: You don’t remember having a conversation with Man, William Smothers, over in the jail about this incident? [APPELLANT]: No, sir. [PROSECUTOR]: Remember telling him how you stuck the gun up in there and started shooting in the ice cream truck? [APPELLANT’S COUNSEL]: I object. THE COURT: Overruled. [PROSECUTOR]: Don’t remember that? [APPELLANT]: I never told him nothing like that, sir. [PROSECUTOR]: Okay. That’s what you say today, but that’s not what you told Detective Elliott, is it? [APPELLANT]: That’s what I told him back then when he ... when he questioned me. [PROSECUTOR]: That you were on Oakley when the shots were fired? [APPELLANT]: Correct. [PROSECUTOR]: You didn’t tell him you were on Robinson Place? [APPELLANT]: No, sir. [PROSECUTOR]: Now, you told Detective Elliott you didn’t know you were wanted until Monday or Tuesday, which would have been ... let’s see, the 29th was a Friday, right? [APPELLANT]: Correct. [PROSECUTOR]: Okay. And, the 30th was Saturday.

And, July 1st, that’s when you went down to your father’s house, right? [APPELLANT]: Correct. [PROSECUTOR]: Said you didn’t know you were wanted until Monday or Tuesday, right? [APPELLANT]: No, I told him Sunday morning. ¹⁰⁷ [PROSECUTOR]: Told him you knew you were wanted Sunday morning? [APPELLANT]: Correct. [PROSECUTOR]: Okay. But, now that’s not what your father said earlier, was it? [APPELLANT]: I don’t know what he said. [PROSECUTOR]: Well, you were sitting right there when he testified. [APPELLANT]: Yes. [PROSECUTOR]: Alright. Now, you said you were there by yourself to Detective Elliott first, right? And, then you quickly changed up and said, no, I wasn’t out there by myself? [APPELLANT]: No, sir. [PROSECUTOR]: You didn’t say that? [APPELLANT]: N. [sic] [PROSECUTOR]: And, you said I ... it don’t even look like a metal box to me, right?

Right? [APPELLANT]: I said something like that. [PROSECUTOR]: Okay. And, it’s at that point when he presses you on the fingerprints and you say I don’t want to answer any more questions, right? [APPELLANT]: Correct. [PROSECUTOR]: So, you didn’t say I don’t want to answer any more questions or I don’t want a lawyer or any of that stuff until he puts this picture in front of your face and tells you the significance of the fingerprints, right? [APPELLANT]: Correct. [PROSECUTOR]: You don’t know Jonathan Marshall over in the jail? [APPELLANT]: No, sir. [PROSECUTOR]: Okay. Don’t even ... never talked to him over there? ¹⁰⁸ [APPELLANT]: No, sir. Never heard of him. [PROSECUTOR]: Never heard of him?

You never told ... you never said anything to him about I had to try my hand; you know me; you know how I get it, right? Talking about this murder, right? [APPELLANT’S COUNSEL]: Objection. THE COURT: Overruled. [PROSECUTOR]: You didn’t say that? [APPELLANT]: No, sir. [PROSECUTOR]: Okay. Didn’t say I had to put that joint up in there?

Didn’t say that, right? [APPELLANT]: No, sir. [PROSECUTOR]: You weren’t doing any bragging over there in the jail about shooting this girl, were you? [APPELLANT]: No, sir. [PROSECUTOR]: No. Okay. Not at all, right? [APPELLANT]: Correct. [PROSECUTOR]: And, you didn’t try to get Frank Leopard to lie on Deante Duckett for you, did you? [APPELLANT]: No, sir. [PROSECUTOR]: I mean, you know who Frank Leopard is now, right? [APPELLANT]: Yes. [PROSECUTOR]: Okay. Do you remember Frank Leopard ... you ... you told him that the person ... you wanted him to come to your trial and testify that the person that tried to rob him was Deante Duckett and he had a silver nickel plated gun, right? [APPELLANT]: Incorrect. [PROSECUTOR]: Okay. You never told Frank Leopard that? [APPELLANT]: No, sir. ¹⁰⁹ [PROSECUTOR]: Okay.

Now, and I suppose you never told Daryl Duckett when you talked to him that you messed ... messed up by doing this, did you? [APPELLANT]: I never talked to Daryl Duckett. [PROSECUTOR]: Never talked to Daryl Duckett either. Alright. [APPELLANT’S COUNSEL]: Object to commentary. THE COURT: Okay. Sustained. [PROSECUTOR]: [Appellant], Deante Duckett didn’t shoot this girl, did he? [APPELLANT]: I don’t know. [PROSECUTOR]: Certainly can’t say that he did, can you? [APPELLANT]: No. [PROSECUTOR]: Okay.

Because, I mean, if he had told you in your house the next day, man, I shot this girl. What do I do? You certainly would sit up here and tell us, wouldn’t you? [APPELLANT]: Correct. [PROSECUTOR]: Right? Matter of fact, this is the first time you’ve ever said anything publically to anybody about this meeting you had with Deante Duckett the next day, right? [APPELLANT’S COUNSEL]: I object. [PROSECUTOR]: Okay. [APPELLANT’S COUNSEL]: He has a constitutional right to remain silent until his attorney.... [PROSECUTOR]: I’ll rephrase, Your Honor.

Didn’t you tell Detective Elliott about this Deante Duckett discussion, did you? [APPELLANT]: Yes, I told him. [PROSECUTOR]: You told him ... okay. Okay. So, you told Detective Elliott that Deante Duckett came to your house the next day? ¹¹⁰ [APPELLANT]: Yes. [PROSECUTOR]: And, told you that they’re saying that we did something? [APPELLANT]: Correct. [PROSECUTOR]: That we shot this girl in this ice cream truck? [APPELLANT]: Correct. [PROSECUTOR]: So, you told Detective Elliott that and everything else you said here today? [APPELLANT]: Correct. [PROSECUTOR]: Now, did you tell Detective Elliott about Deante as far as how he appeared that night? [APPELLANT]: No. Jury Instructions Before closing arguments, the circuit court instructed the jury, in pertinent part, as follows: The defendant is presumed to be innocent of the charges. This presumption remains with the defendant throughout every stage of the trial and is not overcome unless you are convinced beyond a reasonable doubt that the defendant is guilty.

The State has the burden of proving the guilt of the defendant beyond a reasonable doubt. This burden remains on the State throughout the trial. The defendant is not required to prove his innocence. The following things are not evidence and you should not give them any weight or consideration: ... questions and objections of counsel....

You must disregard questions that I did not permit the witness to answer and you must not speculate as to the possible answers. ¹¹¹ Opening statements and closing arguments of the lawyers are not evidence in this case. They are intended only to help you to understand the evidence and to apply the law. Therefore, if your memory of the evidence differs from anything the lawyers or I may say, you must rely on your own memory of the evidence. Closing Arguments During the State’s closing argument, the prosecutor stated: You also heard from Charlene Woodland.

And, what does she say, ladies and gentlemen, when she comes back she sees [appellant] pointing a gun in her face. And, she told you that she will never forget that face of the man who is pointing a gun at her. And, ladies and gentlemen, that makes sense. She is not going to forget the face of the man who killed her only child.

She saw him under the same lights that Tanya Butler saw him. You can judge their credibility, but they were not mistaken, ladies and gentlemen. Appellant did not object during the State’s closing argument. During appellant’s closing argument, appellant’s counsel argued that the State had not proven the occurrence of a robbery beyond a reasonable doubt.

Appellant’s counsel stated: Ladies and gentlemen, I don’t think you should be convinced that a robbery occurred as they said it occurred. Now remember, the Judge instructed you that the defense is presumed innocent and we don’t have to prove anything. You don’t have to find beyond a reasonable doubt that Deante Duckett did it ... to find [appellant] not guilty. And, you don’t have to find beyond a reasonable doubt that these two women’s [Woodland’s and Butler’s] stories are not the truth, the whole truth and nothing but the truth in order to find [appellant] not guilty.

Now, that doesn’t mean they weren’t robbed. I just said to you that I don’t ... I can’t believe beyond a reasonable ¹¹² doubt that they [Woodland and Butler] were robbed, but rather none of us should because they’re not telling the truth, the whole truth. They ... they go over there and they say that they stopped to fix the mirrors.

Why aren’t Charlene Woodland’s fingerprints on the mirrors? And, if you had expert testimony that would help you know the likelihood ... the probabilities then you could put some value to that evidence. They don’t mind coming in here and telling you it’s one in 6.6 million chances that it is [appellant’s DNA on that bottle. But, they can’t tell you the probability of someone shooting a gun at a moving target and hitting the very same hole.

During the State’s rebuttal closing argument, the prosecutor argued: I sit there and listen to [appellant’s counsel’s arguments and the first thing that comes up to me is unbelievable that he can actually stand there and say the things that he did like this is no robbery; can’t believe it. A lot of sound and fury. I’m sure you’ve heard that phrase before. Well, that’s actually a quote.

It’s from Shakespeare, from Macbeth, and the full quote is: It is a tale ... and I’m quoting now ... it is a tale told by an idiot full of sound and fury signifying nothing. That’s what the entire argument told by [appellant’s counsel] was. Didn’t mean a thing. Means nada.

Nothing. Not a dag on thing. He stood up here in front of you on several occasions and said that if the forensic evidence ... if this fingerprint doesn’t show this, this fingerprint doesn’t show that you have to find [appellant] not guilty. It is a red herring, ladies and gentlemen.

And, quite frankly, that’s what [appellant’s counsel’s] argument was all full of ... red herrings. ¹¹³ [I]s there anybody in this case who is more desperate to get this right than Tanya Butler and Charlene Woodland? Please tell me you understand the mother of the thirteen year old child ... their only child ... wants to see it done right. Do you think they’re going to be led around by the nose and put it on anybody that the police want to select as [appellant’s counsel] wants you to believe? Do you think they’re going to engage in essentially a conspiracy?

Because that’s what he is talking about. Okay? That’s what he has come up with. Not only conspiracy with the witnesses, but with me the State, all the police.

Do you think they’re going to willingly, voluntarily walk in here and say that guy did it if he didn’t? Motive to tell the truth. Because if that ain’t the right guy then they’re letting poor Briona lay there without any justice and they’re a party to it. That’s motive to tell the truth, ladies and gentlemen.

That’s a lot of motive. And, speaking of hats, where is [appellant’s hat? He doesn’t have any burden whatsoever putting the evidence on whatsoever. But, he got up there and said, hey, I had a black hat on with red, this that and the other.

Same scrutiny as every other witness. He wants to be believed. Where is the hat? We don’t have it.

Wasn’t out there on the scene. He was on the run for five, six, seven days, whatever it is. Shoot, he could have had him [sic] momma buy a hat like he described and bring in here. We wouldn’t have known the difference.

No hat. Could have had a black hat on just like they said ... like Deante [Duckett] said. [H]ow in the world does Roy Irby [who, as a witness for the State, testified that appellant told Irby in jail that appellant robbed the ice cream truck] know that the gun shots ... the bullets went into the back of this truck? Remember he testified to that? I hope you caught it.

I said, where did [appellant] tell you he was standing in location to the truck ¹¹⁴ when he shot it? He said, he was in the back in the rear. How does he know that? That’s not in any police report anywhere.

Excuse me. I misspoke. Certainly in a police report. It’s not in any press anywhere.

How is anybody going to know ... how is anybody going to know that? And, let me say something else to you because it was kind of interesting. When we were selecting the jury here somebody talked about, you know, when you talk about a child being killed around an ice cream truck I think the immediate vision everybody gets is, you know, five or six kids are hanging around the ... the ice cream truck buying ice cream. Right?

And, somebody starts popping off rounds. You know, it could happen any way, right? My point is is [sic] that Roy Irby has the factual scenario correct. And, that struck me, actually, during the selection of this jury because one of the people who is not in the jury said, well, you know, with a whole bunch of kids around the ... around the ice cream truck, you know, why in the heck would somebody start firing?

And, it just struck me that, you know, yeah, this could happen any way. But, it doesn’t just happen any way. It happens the way Roy Irby said it happened. It happened the way that Deante Duckett said it happened.

But, how does Roy get it right unless [appellant] told him? Unless he told him, and he did tell him. [Appellant’s counsel is] up here railing against the DNA ... railing against the DNA, and puts his client up on the stand and says, hey, yeah, I was drinking out of a bottle. It’s all a red herring. It signifies nothing.

It’s a whole bunch of sound and fury on the DNA and Deante Duckett. You’ve got an eyewitness to the crime [Deante Duckett] who could not have committed the crime. You have two other witnesses [Woodland and Butler] who say, yeah, that’s the guy ... under oath; here in court, two people ... two ¹¹⁵ people who you cannot disbelieve because more than anybody ... more than you they want to get it right. Don’t let [appellant’s counsel] obfuscate, confuse, and bring up all these red herrings to distract you from the real truth here ... the truth that this evidence has borne out ... that’s [appellant] killed Briona Porter; tried to kill them.

Three eyewitnesses right there at that window at that time. All that other noise, all that sound and fury means nothing. Appellant did not lodge any objections to the above comments made during the State’s rebuttal closing argument. DISCUSSION I. Appellant argues that the circuit court erred in admitting statements he made to law enforcement officers concerning his actions on the night of June 29, 2007.

Specifically, appellant contends that the circuit court erred in holding that the State met its burden in proving that he waived his Miranda rights during a custodial interrogation. In contrast, the State maintains that appellant “voluntarily, knowingly, and intelligently waived his Miranda rights.” The State contends that the prosecution need only show that “the suspect understood his Miranda rights, engaged in a course of conduct inconsistent with the assertion of those known rights, and was not subjected to any police coercion that overcame his will.” In Moore v. State, 422 Md. 516, 528 , 30 A.3d 945 (2011), the Court of Appeals discussed the standard of review for Miranda issues: [W]e view the evidence and inferences that may be reasonably drawn therefrom in a light most favorable to the prevailing party on the motion, here, the State. We defer to the motions court’s factual findings and uphold them unless they are shown to be clearly erroneous. We, howev ¹¹⁶ er, make our own independent constitutional appraisal, by reviewing the relevant law and applying it to the facts and circumstances of this case.

In Winder v. State, 362 Md. 275 , 765 A.2d 97 (2001), this Court stated: The trial court’s determination regarding whether a confession was made voluntarily is a mixed question of law and fact. As such, we undertake a de novo review of the trial judge’s ultimate determination on the issue of voluntariness. Our review of the Circuit Court’s denial of Appellant’s motion to suppress is limited to the record of the suppression hearing. (Most citations and internal quotation marks omitted).

In McIntyre v. State, 309 Md. 607, 614-15 , 526 A.2d 30 (1987), the Court of Appeals explained that the State’s burden of proof for proving that a defendant waived his or her Miranda rights is by a preponderance of the evidence: In undertaking to prove a waiver of Miranda rights, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. The heavy burden shouldered by the State is only proof by a preponderance of the evidence. The question whether an accused waived Miranda rights is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case. (Citations and internal quotation marks omitted).

In Donaldson v. State, 200 Md.App. 581, 592 , 28 A.3d 129 (2011), cert. denied, 424 Md. 629 , 37 A.3d 318 , 2012 Md. LEXIS 89 (2012), this Court explained that courts should consider the totality of the circumstances for Miranda issues: It is well established that Miranda stands for the requirement that, before police may interrogate a person in custody, the police must advise the person that any statement he or she makes can be used against him in a court of law, so as to protect him from compelled self-incrimination. ¹¹⁷ The person in custody may waive his Miranda rights if the waiver is voluntarily, knowingly, and intelligently made, and the determination of whether the waiver of an accused has been made knowingly and voluntarily is by a review of the totality of the circumstances. (Citations and internal quotation marks omitted). Miranda Waivers In Logan v. State, 164 Md.App. 1, 41 , 882 A.2d 330 (2005), aff'd, 394 Md. 378 , 906 A.2d 374 (2006), this Court discussed what constitutes a waiver of the Miranda rights: Although an express written or oral statement of waiver of the right to remain silent ... is usually strong proof of the validity of that waiver, [it] is not inevitably ... sufficient to establish waiver.... [I]t would be absurd to think that mere recitation of the litany [of Miranda rights] suffices to satisfy Miranda in every conceivable circumstance. And, in contrast to traditional voluntariness, there is an absolute prohibition upon any trickery which misleads the suspect as to the existence or dimensions of any of the applicable [.Miranda ] rights[.] (Citations and internal quotation marks omitted) (most omissions and alterations in original).

In Ashford v. State, 147 Md.App. 1, 55-56 , 807 A.2d 732 , cert. denied, 372 Md. 430 , 813 A.2d 257 (2002), we held that the defendant’s Miranda waiver was voluntary because, in part, the defendant did not testify at the motion hearing. This Court stated: “When the issue is voluntariness, rather than Miranda compliance ... the failure of a defendant to testify almost forecloses any chance of prevailing. ... The voluntariness of a defendant’s response to possible pressures ... is very subjective. Only the defendant can truly tell us what was going on in the defendant’s mind.

Without such testimony, there is usually no direct evidence of involuntariness.... [Here, the defendant] asks us to guess what was in his head. ¹¹⁸ He actually asks us to second-guess [the circuit court] for not having guessed.” Id. at 56, 807 A.2d 732 . In Berghuis v. Thompkins, — U.S.-, 130 S.Ct. 2250, 2262 , 176 L.Ed.2d 1098 (2010), the Supreme Court stated: “Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” In Berghuis , the Supreme Court held that the defendant knowingly and voluntarily waived his Miranda rights even though the defendant declined to sign a waiver and there was “conflicting evidence” of whether the defendant “verbally confirmed that he understood the rights listed on the form.” Id. at 2256 . The defendant was “[l]argely silent” during the interrogation before he responded “yes” to the question: “Do you pray to God to forgive you for shooting that boy down?” Id. at 2256-57 . The Supreme Court noted that: (1) “there [was] no contention that [the defendant] did not understand his rights; and from this it follows that he knew what he gave up when he spoke”; (2) the defendant’s “answer to [the detective]’s question ... is a ‘course of conduct indicating waiver’ of the right to remain silent”; and (3) “there [was] no evidence that [the defendant’s statement was coerced.” Id. at 2262-63 (citations omitted); see also North Carolina v. Butler, 441 U.S. 369, 370-71, 373 , 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979) (The Supreme Court held that the defendant waived his Miranda rights when law enforcement officers informed the defendant of his Miranda rights and the defendant replied: “I will talk to you but I am not signing any form.”).

Returning to the instant case, we conclude based on the totality of the circumstances that appellant knowingly, voluntarily, and intelligently waived his Miranda rights—as appellant was an adult, there was no evidence that he was under the influence of alcohol or drugs, and he indicated he understood the rights and made an uncoerced statement to the detectives. After Detective Elliott read appellant his Miranda rights and asked appellant if he understood his ¹¹⁹ rights, appellant replied “yes.” Appellant then made uncoerced statements in which he admitted that “he was there on the scene” of the shooting; appellant later asserted his right to an attorney. As in Berghuis, 130 S.Ct. at 2262-63 , here, (1) “there is no contention that [appellant] did not understand his rights; and from this it follows that he knew what he gave up when he spoke” about being at the crime scene; (2) appellant’s answer to Detective Elliott’s questions constitutes “conduct indicating waiver of the right to remain silent”; and (3) Detective Elliott, the law enforcement officer responsible for the interrogation, testified that appellant was not coerced. According to Detective Elliott’s testimony, which the circuit court found credible, appellant did not assert the right to an attorney until after answering questions, at which point Detective Elliott immediately ended the interview.

Like the defendant in Ashford, 147 Md.App. at 56 , 807 A.2d 732 , appellant did not testify at the motion hearing, thus “askfing] us to guess what was in his head.” Given the testimony as to Detective Elliott’s verbatim Miranda reading and appellant’s response of “yes,” at the motion hearing, the State demonstrated that a Miranda warning was given and that it was understood by appellant. As in Berghuis, 130 S.Ct. at 2262 , appellant’s “uncoerced statement established] an implied waiver of the right to remain silent.” For the reasons discussed above, we conclude that the circuit court properly found that appellant knowingly, voluntarily, and intelligently waived his Miranda rights. 5 II. Appellant contends that the circuit court erred in allowing the State to cross-examine him about statements he ¹²⁰ allegedly made before trial, admitting to the crimes that took place on June 29; 2007. Appellant argues that “the State used inadmissible hearsay declarations from unavailable witnesses in an attempt to impeach” him. 6 Appellant maintains that the line of questioning by the State contained two levels of hearsay—the first level being appellant’s alleged confession to out-of-court declarants and the second level being the communication by the out-of-court declarants to State investigators to convey the alleged confession.

Appellant argues that this error violated his right to cross-examine the witnesses against him. In contrast, the State maintains that the circuit court properly permitted the prosecutor to ask appellant whether he had confessed committing the crime to others. The State argues that “[ajsking a witness, and particularly the accused, to deny his or her own prior statement is a quintessential form of proper impeachment.” The State contends that there was no error as the prosecution impeached appellant with his own prior statements, rather than the statements of another. We review hearsay rulings de novo.

Parker v. State, 408 Md. 428, 437 , 970 A.2d 320 (2009). Maryland Rule 5-801(c) provides: “ ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Maryland Rule 5-802 provides: “Except as otherwise provided by these rules or permitted by applicable constitutional provisions or statutes, hearsay is not admissible.” Maryland Rule 5-803(a)(1) provides: “The following [is] not excluded by the hearsay rule, even though the declarant is available as a witness: Statement by party-opponent. A statement that is offered against a party and is: The party’s own statement, in either an individual or representative capacity[.]” ¹²¹ Witnesses may be questioned with their prior statements in two very distinct circumstances. Maryland Rule 5-802.1, entitled “Hearsay exceptions—Prior statements by witnesses,” provides for admission of prior statements for their truth, as substantive evidence, as an exception to hearsay.

The Rule provides, in pertinent part: The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant’s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic means contemporaneously with the making of the statement!.] The Committee Note to Maryland Rule 5-802.1 provides: “This Rule does not affect the admissibility of prior inconsistent statements for impeachment purposes.” (Emphasis added). Maryland Rules 5-613 and 5-616 provide for the use of prior statements of witnesses for impeachment purposes. Maryland Rule 5-613, entitled “Prior statements of witnesses,” provides: (a) Examining witness concerning prior statement. A party examining a witness about a prior written or oral statement made by the witness need not show it to the witness or disclose its contents at that time, provided that before the end of the examination (1) the statement, if written, is disclosed to the witness and the parties, or if the statement is oral, the contents of the statement and the circumstances under which it was made, including the persons to whom it was made, are disclosed to the witness and (2) the witness is given an opportunity to explain or deny it.

(b) Extrinsic evidence of prior inconsistent statement of witness. Unless the interests of justice require, extrinsic ¹²² evidence of a prior inconsistent statement by a witness is not admissible under this Rule (1) until the requirements of section (a) have been met and the witness has failed to admit having made the statement and