Williams v. State

³⁰³ WOODWARD, J. On March 30, 2011, Deandre Ricardo Williams, appellant, was arrested in Washington, D.C. concerning a fatal shooting in the College Park area in January 2011. After arriving at the homicide unit in a District of Columbia police station, appellant was charged and then placed into an interrogation room, along with two Prince George’s County police officers, Detective Harris 1 and Sergeant Gregory McDonald. Immediately prior to being advised of his Miranda rights, appellant made the comment, “I don’t want to say nothing. I don’t know, — ”.

The police then gave appellant his Miranda rights, after which he confessed to shooting the victim. Appellant’s subsequent motion to suppress his confession was denied by the Circuit Court for Prince George’s County. Thereafter, appellant and the State agreed to proceed via a not guilty plea on an agreed statement of facts. The court convicted appellant of first degree murder and use of a handgun in the commission of a crime of violence. 2 Appellant was sentenced to life imprisonment, with all but forty-nine years suspended for first degree murder, and a concurrent twenty years’ incarceration for use of a handgun in the commission of a crime of violence.

On appeal to this Court, appellant presents two questions for our review, which we have combined into one: 3 ³⁰⁴ Did the suppression court err by denying appellant’s motion to suppress the inculpatory statement that he made to the police? For the reasons we shall explain, we answer this question “no” and, therefore, we affirm the judgments of the circuit court. BACKGROUND The Underlying Incident For context to our review of the suppression hearing and the trial court’s ruling, we shall summarize the agreed statement of facts presented to the circuit court on February 10, 2012, when appellant entered his not guilty plea. On or about January 10, 2011, appellant and Stephan Weaver 4 agreed to rob Justin DeSha-Overcash of marijuana and money, at gunpoint.

The next day, Weaver picked up appellant at a Super Fresh Market in the Glendale area and drove to 38th Avenue in College Park. After Weaver parked across the street from the house where DeSha-Overcash was living, appellant got out of the car alone and put on a ski mask. Brandishing a black ten-millimeter handgun, appellant entered the residence at 8809 38th Avenue and announced a robbery. Inside the house, a physical struggle ensued between De-Sha-Overcash and appellant.

DeSha-Overcash resisted the robbery by throwing a glass jar at appellant’s head. When the two of them struggled for the gun, appellant shot DeSha-Overcash. Appellant fled the house and ran back to the car where Weaver was waiting. As Weaver drove off, his car was captured by a speed camera fleeing from the scene.

Inside the car, Weaver asked appellant what happened. Appellant told Weaver that he shot “him,” meaning the victim, “down low.” Appellant later told the police that he eventually threw the gun that he used during the shooting into the Anacostia River. ³⁰⁵ During the subsequent investigation, the police recovered three fired ten-millimeter cartridge casings from the scene of the incident, all of which were determined to have been fired from the same unknown firearm. However, no physical evidence recovered from the scene of the incident was ever linked to appellant. Additionally, an autopsy of Justin DeSha-Overcash was conducted by Dr. Russell Alexander of the Office of the Chief Medical Examiner in Baltimore.

As part of the autopsy, Dr. Alexander recovered a ten-millimeter bullet, as well as a base jacket fragment from a fired ten-millimeter bullet, from the victim’s abdomen. Dr. Alexander determined that the cause of death was multiple gunshot wounds to the abdomen and that the manner of death was homicide. On March 26, 2011, the police arrested Weaver. After being advised of his rights, Weaver confessed to conspiring with appellant to rob the victim at gunpoint by helping to orchestrate the attempted aimed robbery.

Appellant’s Police Interview On March 30, 2011, appellant was brought in for questioning at the District of Columbia homicide unit. Prior to being questioned by Detective Harris and Sergeant McDonald, appellant was charged with twelve criminal offenses, including first degree murder and use of a handgun in the commission of a crime of violence. The interview took place in an interrogation room and was videotaped by a single camera placed in a corner of the room. It is undisputed that appellant was in police custody at the time of his being questioned.

Appellant admitted diming his interview that he entered the house and eventually shot the victim during an attempted robbery. According to appellant, the victim “rushed [him],” at which point appellant “whipped the gun out.” During the ensuing struggle, appellant explained, he shot the victim twice. The Suppression Hearing Appellant subsequently moved to suppress his inculpatory statements, arguing that he had unambiguously invoked his ³⁰⁶ Miranda right to silence. On December 14, 2011, the circuit court (“the suppression court”) held a hearing on appellant’s motion to suppress.

The DVD containing the interview, and a written transcript of the interview, were admitted into evidence as joint exhibits. At the hearing, appellant testified about his questioning by the police. Neither Detective Harris nor Sergeant McDonald testified at the hearing. According to the DVD, which the suppression court viewed, and the transcript of the interview, Detective Harris began the interview by asking appellant several ministerial, “icebreaker” questions concerning his address, contact information, and educational background.

Appellant stated, among other things, that he had worked “[o]n and off’ for Safeway for the past six or seven years, and that he attended college for two years on a football scholarship. The interview proceeded as follows: DETECTIVE HARRIS: (Inaudible). Heard you was fast as lightning. Lightning.

Okay. The reason why me and Sergeant McDonald are here, we are investigating an incident that happened in January. We been working nonstop on it. Through our investigation your name came up, okay? [APPELLANT]: Uh-huh.

DETECTIVE HARRIS: Now, what we have now are what other people have been saying about it. It was enough for us to get an arrest warrant for you, okay? What we’d like to do is give you an opportunity to answer any questions that we may have, or ask us any questions that you have about the incident. We want to ask you questions.

You can stop answering at any time. You don’t have to talk to us. We want you to talk to us, to be honest with you. Like I say, it’s your prerogative.

Like I said, you can talk to us about anything. If you are wondering what we may have to say, this is your opportunity to say, okay. [APPELLANT]: What’s the incident? DETECTIVE HARRIS: Huh? ³⁰⁷ [APPELLANT]: I said what’s the incident? DETECTIVE HARRIS: What’s the answer to what? [APPELLANT]: I said what’s the incident?

DETECTIVE HARRIS: Well, we’ll get into it after I, if you want to know about it, if you want to know what we’re talking about, I’m going to have to read you your rights. You have the right to talk to us, you have the right not to talk to us. You have the right to talk to us and stop talking at any time. You understand that?

Like I said, we’d like to lay everything out for you and then sit back and listen to what you have to say. We’ll listen to anything that you have to say. Anything. You can dispute anything that we might say, and then we’ll listen to you.

You understand that? Okay. Like I said, all we have at this point is what we’ve heard up to this point. We would love to hear from you.

You understand? We’re fair. You’ve probably got two of the fairest people at the Homicide Unit talking to you right now, okay? Like I said, that’s your prerogative.

Like I said, we’d love to lay it out and get you to talk to us, but like I said, you don’t have to. But we would love for you to talk to us, and we can stop so you can see exactly where we’re coming from and go from there. Is that something you’d like to do? [APPELLANT]: I don’t even know what’s going on. That’s why I ask you what’s the incident.

DETECTIVE HARRIS: That’s what I said. I can read you your rights. Like I said, after that, we can talk. Like I said, if you don’t like what I’m saying you ain’t got to say nothing. [APPELLANT]: I don’t know what’s going on, so I— DETECTIVE HARRIS: Okay.

This incident happened January in College Park. Through our investigation your name came up. Like I said, this is your opportunity to say, yeah, you were involved or no, you weren’t involved. ³⁰⁸ [APPELLANT]: I don’t know anything about what you all are talking about. SERGEANT MCDONALD: Well, we can get to that.

We got to go over your, your rights, first. [APPELLANT]: I know. I still, I don’t know what,— SERGEANT MCDONALD: I understand that. I understand that. But we got to go through the process.

Before we can ask you were you involved, we got to,— DETECTIVE HARRIS: We got stuff we got to take care of before we,— [APPELLANT]: Yeah, I understand that. I still don’t know,— SERGEANT MCDONALD: I understand that. But we still got to go through the process, though. You know.

We want to talk to you, but we got to go through the process. DETECTIVE HARRIS: We want to lay everything out to you, but you have to agree to, you want to at least hear what we have to say, and that’s fine. But you say you don’t, once we read you your rights, if you don’t have nothing to do with it, then we just get up and roll. But we can’t get into it until we get through that.

That’s all I’m saying. So if you’re sitting here and wondering why you’re here, we, we’re ready to tell you why you are here. [APPELLANT]: We already know but it’s so, you all sound, it sounds so confusing. I don’t know— SERGEANT MCDONALD: It’s not confusing. Let me break it down to you like this right here.

You be, you watch T.V., right? Do you see when the police walk up to somebody, and we want to ask you, we want to talk to you about something, we always read the person their rights? You’ve seen that on T.V., right? They say, you’ve got the right to remain silent.

Anything you say can and will be used against you in court. You’ve heard that before, haven’t you? Yeah. We have to go through ³⁰⁹ that formality to get to what we want to talk about.

That’s, we have to go through that formality. [APPELLANT]: I don’t want to say nothing. I don’t know,— SERGEANT McDONALD: But you don’t have to say nothing. [APPELLANT]: Yeah. SERGEANT MCDONALD: Tom don’t have to say nothing. That’s you know, that’s your right.

But to get to one point, from point A to point B, we have to read you your rights. And the key word is, they’re your rights. So we got to read them to you, so you understand. (Emphasis added).

The DVD of the interview reveals that Sergeant McDonald raised his hands and interrupted the end of appellant’s sentence as appellant was saying, “I don’t want to say nothing. I don’t know, — ” 5 Shortly after the excerpted portion above, Detective Harris read appellant his Miranda rights. The detective then asked appellant, “would you like to make a statement or would you like to talk about why we are here, without a lawyer?” As the DVD shows, appellant nodded his head silently up and down, signaling “yes.” Detective Harris then asked appellant if he had been promised anything, “offered any kind of reward or benefit, or ... threatened in any way in order to get [him] to make a statement?” The DVD depicts appellant shaking his head from left to right, signaling “no.” Detective Harris then pulled out a standard Prince George’s County Advice of Rights and Waiver form (“P.G.C. Form 2628”), signed his initials next to each paragraph, and gave the form to appellant. Appellant was then asked to read aloud a portion of the form in order to prove that he could read English, and he did so successfully.

At Detective Harris’s request, appellant proceeded to read over the form and signed his initials next to ³¹⁰ each paragraph. During the course of the interview, appellant made the following statement: [APPELLANT]: Pm going to tell you all. DETECTIVE HARRIS: What happened? [APPELLANT]: I’m going in the joint and shit. I’m [sic] didn’t even have a mother fucking gun out, or no shit like that.

So, like you said, somebody came in the house. But at this point, there still wasn’t no mother fucking gun or nothing like that. The dude rushed me and shit. So I whipped the gun out and shit.

He tried to take the mother fucking gun. So, I shoot the gun, but I don’t want to shoot him. He’s still trying to take the mother fucking gun. Boom.

I shoot the gun again. Then after that, I don’t know where the fuck I shot, but I didn’t want to hit him or nothing, no way. I just was trying to get him off me and shit, because he was on me and shit, and then that was that. Following the evidence and argument by counsel for both parties, the suppression court denied appellant’s motion, stating: This Court has had an opportunity to review the motion, the opposition, the transcript, the DVD, the evidence admitted, as well as the testimony and the arguments.

The [appellant’s] prior statement, of course, whether in-culpatory or falsely exculpatory, cannot be admitted unless it was elicited in compliance with Miranda procedural safeguards, was voluntarily made under Maryland common law, Maryland constitutional law and the federal constitutional law and did not violate the [appellant’s] right to counsel. The State must prove by a preponderance of the evidence that [appellant] has been warned adequately and weighed the privilege against self-incrimination knowingly and intelligently under the totality of the circumstances. The Court must consider the [appellant’s] age, and in this case, it’s 23 at the time of the statement. Intelligence; in this case, [appellant] testified that he was a sophomore in college.

Experience; the experience of [appellant] is that he’s had ³¹¹ six to seven prior offenses so that he has both pled before the court and he has experience with the criminal court. Mental capacity; in this situation, there’s no indication that there’s any mental incapacity on the part of [appellant] to the contrary. He testified that he believes himself to be an intelligent person. The interrogation which I will get to shortly; duration, tactics and inducements to confess among the various issues.

In this case, two different issues were raised. One, the issue of the Miranda Waiver, and the second, the volun-tariness of the subsequent confession. The Court notes that at issue in particular is the expression by [appellant] on page 11 of the transcript after [appellant], Sergeant McDonald and Detective Harris had had some lay discussion regarding Miranda Rights. That [appellant] then said, “I don’t want to say nothing.

I don’t know.” This Court finds the I don’t know, as the State indicated, to render what would have otherwise been a clear statement at which time the questions would have to stop an ambiguous and equivocal statement. Thereafter, Sergeant McDonald says, but you don’t have to say nothing. [Appellant] says, yeah. Then Sergeant McDonald again says, you don’t have to say nothing. That, you know, that’s your right.

And they continue to talk about it and, again, in more or less a lay manner after which [appellant] says, hold on, I’d like to know what’s going on. So if you all got to read me my rights, then go ahead. Where after, the Advice of Rights were presented to [appellant]. Detective Harris went over the Advice of Rights with [appellant].

He asked at this point, would you like to make a statement or would you like to talk about why we are here without a lawyer, and [appellant] nodded his head yes. He then went on to say, have you been promised anything, have you been offered anything, any kind of reward or benefit or have you been threatened in any way in order to get you to make a statement, have I threatened you, has he threatened ³¹² you, and [appellant] shook his head no. The Advice of Rights went on. The detective asked [appellant] if he could read, but didn’t take his word for it.

He actually had him read something out loud to make sure that he wasn’t just asserting that he was intelligent and literate, but that indeed he was literate, and then gave it to [appellant] to read. In observing the DVD, one notes that [appellant] did not just take the form and sign it as one often does when one gets a contract, but rather actually took his time and read over the Advice of Rights which he did then sign. Accordingly, this Court does not find the claim, vis-a-vis the Miranda Rights, to be a valid claim and finds the State has met its burden as regards to that claim. The second issue is the issue of whether or not the actual confessions were coerced and whether they were truly, voluntarily and intelligently made.

A review of the DVD indicated that the interrogation was certainly not a long prolonged interrogation. [Appellant] was not cuffed. There was no allegations of any physical coercion, and the interaction between [appellant], Sergeant McDonald and Detective Harris was indeed cordial. To be sure, the detectives distinguished premeditated murder and a robbery gone bad. However, [appellant’s] refusal to acknowledge on the stand that the gone bad part of the robbery gone bad was a shooting of the victim flies in the face of the DVD and the transcript and is simply not credible.

The officers in this matter clearly employed trickery regarding the DNA and fingerprinting, yet such trickery is permissible.[ 6 ] The question is whether [appellant’s] state ³¹³ ments were coerced or compelled or whether they were freely, voluntarily made. The Court agrees with the State that [appellant] was well aware that not only did he have an option not to speak, but that he had repeatedly been advised that he could stop speaking at any time even if he had started to speak. The Court further finds that the [appellant’s] statements during the interrogation, including that on Page 36, no matter what you all find out, they’re going to smoke my boots anyway, and that which is found on Page 46 of the transcript, I mean, am I ever going to see the street again, do you all know, indicate that he did not have the misunderstanding that he now alleges. Considering the totality of the circumstances, this Court does not find that the [appellant’s] decision to give a statement was the product of physical or psychological coercion, nor that the officer’s conduct in this case overbore his will to resist or otherwise brought about a statement not freely self-determined by [appellant].

Accordingly, the Court finds that the State has met its burden of proof, and the motion to suppress will be denied. (Emphases added). Disposition of Appellant’s Criminal Proceedings On February 10, 2012, the parties proceeded before the circuit court on an agreed statement of facts, with appellant entering a plea of not guilty. The court found appellant guilty of first degree murder and use of a handgun in the commission of a crime of violence.

At sentencing on April 25, 2012, the court imposed on appellant a life sentence, with all but forty-nine years suspended for first degree murder, and a concurrent twenty years’ incarceration for use of a handgun in the commission of a crime of violence. This timely appeal followed. Additional facts will be set forth below as necessary to resolve the issues presented. ³¹⁴ DISCUSSION In Maryland, the overarching law regarding the use of a criminal defendant’s confession against him is clear. The introduction of a confession as evidence against an accused at trial is permitted only after it is determined that the confession was (1) “voluntary under Maryland noncon-stitutional law, (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights, and (3) elicited in conformance with the mandates of Miranda.” Costley v. State, 175 Md.App. 90, 105-06 , 926 A.2d 769 (2007) (quoting Winder v. State, 362 Md. 275, 305-06 , 765 A.2d 97 (2001)).

Thus, a confession must clear all three hurdles before its use as evidence against a criminal defendant is permitted. In the case sub judice, appellant does not challenge the voluntariness of his confession under the second avenue— namely, that his confession was obtained in violation of the United States Constitution or the Maryland Declaration of Rights. Rather, he limits himself before this Court to two arguments: (i) the officers failed to comply with Miranda’s requirements; and (ii) the confession was obtained involuntarily under Maryland nonconstitutional law as the result of improper police inducement. Therefore, we will conduct our review accordingly.

See Md. Rule 8-504(a)(6) (requiring a party’s brief to contain argument in support of its position on each issue). The suppression court’s ruling denying appellant’s motion to suppress is reviewable in this appeal of his convictions. Md. Rule 4-252(h)(2)(C). “When reviewing a court’s ruling on a suppression motion, we are constrained to rely solely on what was before the suppression court.” Ballard v. State, 420 Md. 480 , 484 n. 3, 24 A.3d 96 (2011). Specifically, we consider only those relevant facts produced at the suppression hearing that are most favorable to the State as the prevailing party on the motion.

While we accept the factual findings of the trial court, unless those findings are clearly ³¹⁵ erroneous, we make our own independent constitutional appraisal as to whether an action was proper by reviewing the law and applying it to the facts of the case. Wimbish v. State, 201 Md.App. 239, 249 , 29 A.3d 635 (2011) (citations and quotations omitted), cert. denied, 424 Md. 293 , 35 A.3d 489 (2012). 1. Invocation of the Right to Silence The Fifth Amendment to the Constitution of the United States provides that, “[n]o person ... shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In Miranda v. Arizona, the Supreme Court explained that the “privilege against self-incrimination” embodied in the Fifth Amendment applies to individuals who are subjected to custodial interrogation by law enforcement officials. 384 U.S. 436, 467 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). “One of the Court’s stated aims in establishing the Miranda rule is to ‘assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process.’ ” Lee v. State, 418 Md. 136, 149 , 12 A.3d 1238 (2011) (quoting Miranda, 384 U.S. at 469 , 86 S.Ct. 1602 ).

In order to combat the “inherently compelling pressures” of custodial interrogation, “which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely,” any person taken into custody must receive the benefit of certain widely familiar procedural safeguards: He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Miranda, 384 U.S. at 467, 479 , 86 S.Ct. 1602 . “After such warnings have been given, and such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer questions ³¹⁶ or make a statement.” Id. at 479 , 86 S.Ct. 1602 . However, “ ‘[t]he rights expressed in the Miranda warning pertain throughout the interrogation.’ ” Ballard, 420 Md. at 488 , 24 A.3d 96 (quoting Lee, 418 Md. at 150 , 12 A.3d 1238 ). Any and all requests by the person being questioned to exercise his or her Miranda right to silence must be “scrupulously honored” by police, and have the effect of “cut[ting] off questioning.” Michigan v. Mosley, 423 U.S. 96, 103, 96 S.Ct. 321 , 46 L.Ed.2d 313 (1975).

Stated another way, if “the right to remain silent is invoked at any point during questioning, further interrogation must cease.” Berghuis v. Thompkins, 560 U.S. 370, 388 , 130 S.Ct. 2250 , 176 L.Ed.2d 1098 (2010). 7 Before we reach the question of whether the interrogation of appellant by Detective. Harris and Sergeant McDonald should have ceased, we must first analyze the foundational question of whether Miranda applies to this case. A. Was Appellant’s Comment Made in the Context of Custodial Interrogation? As we noted in Hoeraufv.

State, It is well established that Miranda warnings are not required in the absence of interrogation. Interrogation under Miranda refers to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response. An incriminating ³¹⁷ response is one whether inculpatory or exculpatory — that the prosecution may seek to introduce at trial. 178 Md.App. 292, 309 , 941 A.2d 1161 (2008) (citations and internal quotation marks omitted). Thus, “[without the presence of both custody and interrogation, the police are not bound to deliver Miranda warnings and obtain a proper waiver of the rights to silence and counsel before questioning a suspect.” Cooper v. State, 163 Md.App. 70, 93 , 877 A.2d 1095 (2005) (emphasis in original); see also In re Darryl P., 211 Md.App. 112, 154 , 63 A.3d 1142 (2013) (noting that Miranda rights attach “only in the special circumstance of custodial interrogation, the critical circumstance which the Supreme Court deems to be inherently coercive or compelling”).

As this Court has recognized, it is “[t]he ‘inherent compulsion’ that is brought about by the combination of custody and interrogation [that] is crucial for the attachment of Miranda.” Marr v. State, 134 Md.App. 152, 173 , 759 A.2d 327 (2000) (citation omitted), cert. denied, 362 Md. 623 , 766 A.2d 147 (2001). Indeed, in Marr, a case discussing whether a person being questioned may “anticipatorily invoke” his Miranda right to counsel, we adopted the following language from the Supreme Court’s opinion in McNeil v. Wisconsin, 501 U.S. 171 , 111 S.Ct. 2204 , 115 L.Ed.2d 158 (1991): “We have in fact never held that a person can invoke his Miranda rights anticipatorily, in a context other than ‘custodial interrogation’ — which a preliminary hearing will not always, or even usually, involve. If the Miranda right to counsel can be invoked at a preliminary hearing, it could be argued, there is no logical reason why it could not be invoked by a letter prior to arrest, or indeed even prior to identification as a suspect. Most rights must be asserted when the government seeks to take the action they protect against.

The fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.” ³¹⁸ Marr, 134 Md.App. at 174-75 , 759 A.2d 327 (quoting McNeil, 501 U.S. at 183 n. 3, 111 S.Ct. 2204 ) (italics added in Marr). In the case sub judice, it is undisputed that appellant was in custody at the time he commented, “I don’t want to say nothing, I don’t know, — ”. The parties do dispute, however, whether appellant’s statement was made “in the context of custodial interrogation.” The State argues that appellant’s “comment to police, T don’t want to say nothing. I don’t know, — ’ was not an invocation of his right to silence, because the statement was made before he was advised of his Miranda rights and was not in response to custodial interrogation.” Relying on Marr and Costley , the State asserts that appellant’s Miranda rights had not yet attached.

Specifically, the State argues that appellant was not yet subject to interrogation and had not been fully Mirandized. Therefore, the State concludes that “[appellant’s] comment was not an invocation of his Miranda right to remain silent, and the officers were free to subsequently obtain his valid Miranda waiver and question him.” Appellant argues, in response, that, under the circumstances, his comment to Detective Harris and Sergeant McDonald was made in “the context of an imminent custodial interrogation,” and thus was a proper invocation of his right to silence. In Marr, the suspect was arrested and, after being brought to the police department and placed in an interrogation room, gave a statement to officers after having been given his Miranda rights and waived the same. 134 Md.App. at 159-60 , 759 A.2d 327 . Sixteen days before the suspect gave his statement, however, the suspect’s attorney, who had represented him previously in other matters, called the police on his initiative and “made it clear to [a police detective] that [the suspect] did not want to talk to police officers without [the attorney] being present.” Id. at 158 , 759 A.2d 327 .

The attorney subsequently faxed a letter to the detective confirming the conversation and repeating in writing that the suspect would not speak to officers without the attorney present. Id. ³¹⁹ at 158-59, 759 A.2d 327 . Aside from the attorney’s contact, however, the suspect did not otherwise invoke his right to an attorney. Id. at 159-60 , 759 A.2d 327 .

Instead, as previously stated, the suspect waived his Miranda rights and proceeded to give a statement. Id. After the suspect moved to suppress his statement in court, the suppression court denied the motion and found that the suspect knowingly and voluntarily waived his rights. Id. at 161, 759 A.2d 327 .

We affirmed. Id. at 177-78 , 759 A.2d 327 . As we explained, “[t]he antipathy expressed in McNeil towards the anticipatory invocation of the Miranda rights is consistent with Miranda’s underlying principles. The Miranda right to counsel is a prophylactic rule that does not operate independent from the danger it seeks to protect against — ‘the compelling atmosphere inherent in the process of in-custody interrogation’ — and the effect that danger can have on a suspect’s privilege to avoid compelled self-incrimination.” Id. at 177, 759 A.2d 327 (quoting Alston v. Redman, 34 F.3d 1237, 1246 (3d Cir.1994)).

We noted further that “at least five federal courts of appeal subsequently have interpreted [footnote 3 of the McNeil opinion] to mean that an individual may not invoke the Miranda right to counsel before custodial interrogation has begun or is imminent.” Marr, 134 Md.App. at 175 , 759 A.2d 327 (emphasis added) (citing, e.g., United States v. Chimes, 142 F.3d 1342 , 1347-48 (11th Cir.1998); United States v. LaGrone, 43 F.3d 332, 338-39 (7th Cir.1994) (“[I]n order for a defendant to invoke his Miranda rights the authorities must be conducting interrogation, or interrogation must be imminent.”)). Because the suspect’s purported invocation of his right to counsel occurred prior to his being in custody, we held that the anticipatory invocation was invalid under our reading of Miranda and its progeny. Marr, 134 Md.App. at 178 , 759 A.2d 327 . We did not reach the issue of “whether, in addition to custody, interrogation must be actual or at least imminent before the right to counsel can be invoked.” Id. at 178 , 759 A.2d 327 . ³²⁰ In Costley , we revisited the issue left open by Marr .

The suspect had been arrested by a police officer and was being transported in the front seat of the police car to a holding cell. Costley, 175 Md.App. at 97, 926 A.2d 769 . While stopped at a traffic light, the officer grabbed a Maryland State Police Detention Log form on which he intended to record the suspect’s personal information, such as his name, the case number, address, and social security number. Id.

According to the officer’s testimony at the suppression hearing, the officer asked for the suspect’s social security number. Id. The suspect did not acknowledge the officer’s question initially. Id.

The officer then asked again for the suspect’s social security number, at which point the suspect stated, “You have my wallet, don’t you?” Id. at 97-98 , 926 A.2d 769 . When the officer responded, Wes, but why don’t you make this easier on both of us and just give me the information I need?,” the suspect responded, “I’m not telling you shit.” Id. at 98 , 926 A.2d 769 . Later, after the suspect was placed in the holding cell, the police read him his Miranda rights and obtained a signed waiver form from the suspect, as well as a subsequent statement. Id.

As in Marr , the suspect later moved to suppress the statement, and the circuit court denied the suspect’s motion. Id. at 99-100, 926 A.2d 769 . Again, we affirmed. Id. at 109-10 , 926 A.2d 769 .

In analyzing the suspect’s claim, we noted that the custodial interrogation requirement of Miranda is “applicable to invocation of a suspect’s right to remain silent as well as his or her right to counsel.” Id. at 106, 926 A.2d 769 (citing Marr, 134 Md.App. at 177 , 759 A.2d 327 ). We elaborated that “the language of McNeil suggests that custody, absent interrogation, is insufficient.” Costley, 175 Md.App. at 111 , 926 A.2d 769 (emphasis added). We stated that, under the circumstances, the suspect was not being interrogated when he said, “I’m not telling you shit,” because “[t]he officer’s comments might have been unwise, but the comments complained of were not questions and did not relate to the crime.” Id. at 107 , 926 A.2d 769 . Therefore, we held that the suspect’s ³²¹ Miranda rights had not attached at the time of his comment.

Id. We analyzed the issue of whether the invocation of the right to counsel was made in the context of interrogation after the suspect was taken into custody in Hoerauf, 178 Md.App. at 307 , 941 A.2d 1161 . In Hoerauf , patrol officers arrested the suspect and brought him to the police station. Id. at 299 , 941 A.2d 1161 .

After arriving at the police station, the suspect was handcuffed to a table and fingerprinted, then placed in a holding cell, where he remained for several hours. Id. at 304 , 941 A.2d 1161 . The suspect testified at the suppression hearing that, while in the holding cell, he requested several times to call his mother, an attorney. Id. at 304-05 , 941 A.2d 1161 .

The suspect was subsequently brought into an interrogation room and subjected to questioning by a police detective. Id. at 299 , 300 n. 5, 941 A.2d 1161 . At the suppression hearing, the detective testified that the suspect “did not want an attorney” while being questioned in the interrogation room. Id. at 303 , 941 A.2d 1161 .

Furthermore, the suspect himself did not remember whether he requested to speak to his mother or otherwise requested an attorney while inside the interrogation room. Id. at 305 , 941 A.2d 1161 . The suppression court denied the suspect’s motion. Id. at 312 , 941 A.2d 1161 .

On appeal, we affirmed the trial court’s conclusion that the suspect “did not validly invoke his Fifth Amendment right to counsel prior to giving a statement” to the police. Id. at 318 , 941 A.2d 1161 . 8 As we explained: We come to the same conclusion in the case sub judice as we did in Costley . Assuming that appellant clearly expressed his desire for the assistance of counsel by repeatedly asking to talk to his mother, an attorney, all such ³²² requests were made by appellant prior to being placed in the interrogation room and questioned by Detective So-felkanik. As found by the trial court, and not disputed by appellant, at no time from his entry into the interrogation room until the completion of his statement did appellant ask to speak with his mother, or otherwise request the assistance of counsel.

Accordingly, we hold that appellant did not validly invoke his Fifth Amendment right to counsel prior to giving a statement to Detective Sofelkanik. Id. at 318, 941 A.2d 1161 (emphasis added). Stated another way, we held that, where the suspect does not invoke his Miranda right after “his entry into the interrogation room,” his prior invocation was not valid, i.e., such invocation was not made in the context of custodial interrogation. Id.

In the case sub judice, we conclude that appellant’s Miranda rights had attached by the time that he made the critical comment to Detective Harris and Sergeant McDonald. In contrast to the suspect in Hoerauf , appellant’s comment was made after he was placed in the interrogation room and after he began speaking with the police. Although actual interrogation had not yet commenced, because Detective Harris had only a “lay discussion” with, and asked “icebreaker” questions of, appellant up to that point, the interrogation was “imminent.” See Marr, 134 Md.App. at 174-75 , 759 A.2d 327 . Appellant had already been arrested and had entered an interrogation room, where he remained in close physical proximity with two police officers.

In addition, prior to appellant’s comment, the officers told appellant at least three separate times that they would be advising appellant of his Miranda rights. Detective Harris explained: “You have the right to talk to us, you have the right not to talk to us. You have the right to talk to us and stop talking at any time.” In short, these circumstances present the “compelling atmosphere”— and its corresponding danger of “inherent compulsion” — that the Miranda prophylaxis was expressly designed to guard against. Id. at 173, 177, 759 A.2d 327 (citing Alston, 34 F.3d at 1247 ).

Therefore, we hold that appellant’s comment was ³²³ made “in the context of custodial interrogation,” McNeil, 501 U.S. at 182 n. 3, 111 S.Ct. 2204 and consequently, appellant could invoke his right to silence under Miranda . Appellant was, as he argues in his brief, “in the right time and place to invoke” his Miranda rights and, thereby, terminate the interrogation if he so chose. See McNeil, 501 U.S. at 182 n. 3, 111 S.Ct. 2204 (“Most rights must be asserted when the government seeks to take the action they protect against.”). We must now evaluate whether appellant’s comment, “I don’t want to say nothing.

I don’t know, — ” was, as a matter of law, a valid invocation of his right to silence. B. Was Appellant’s Invocation Unambiguous? Appellant contends that “[t]he police violated [his] right to remain silent during a custodial interrogation when