Bhalla v. State
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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2302 September Term, 1999 JAGPREET BHALLA v. STATE OF MARYLAND Murphy, C.J., Davis, Byrnes, JJ. Opinion by Davis, J. Dissenting Opinion by Murphy, C.J. Filed: October 12, 2000 On August 16, 1999, appellant Jagpreet Bhalla entered a plea of not guilty to charges of attempted murder, conspiracy, first degree assault, use of a deadly weapon in the commission of a crime of violence, and wearing or carrying a concealed deadly weapon. He proceeded on a not guilty agreed statement of facts in the Circuit Court for Baltimore County (James T. Smith, J.), preserving his right to appeal the denial of his pretrial motions and the court found him guilty of attempted first degree murder and conspiracy and entered a nolle prosequi as to each of the remaining counts. On October 25, 1999, the court merged Count II into Count I and sentenced appellant to a term of life imprisonment, suspending all but twenty-five years. noted this timely appeal, presenting three questions: I. Did the motions court commit reversible error in violation of the Due Process Clause of the Fourteenth Amendment of the United States Constitution and Article 22 of the Maryland Declaration of Rights in denying appellant s motion to suppress after the State failed its burden to prove that the statements were voluntarily made? II. Was the motions court s failure to find that the delay of presentment to the Commissioner was not unnecessary, pursuant to Rule 4-212(f) reversible error? III. Did the motions court commit reversible error in failing to suppress the statements which were taken in violation of the Fourth Appellant - 2 Amendment Rights? and the Declaration of For the reasons set forth, infra, we answer appellant s first question in the affirmative and vacate the judgment of the lower court. For the guidance of the Circuit Court for Baltimore County, on remand, we shall address appellant s second and third questions, answering both in the negative. FACTUAL BACKGROUND The prosecution called a single witness, Detective Thomas M. Lau, at the hearing on the motion to suppress before the motions judge (Levitz, J.). According to the witness, he arrested appellant at approximately 9:48 p.m. on July 17, 1998 for attempted murder. Detective Lau and Appellant was thereafter transported by Detective Leonard Taylor to the police station, where they arrived sometime between 10:30 and 10:50 p.m., at which time appellant was escorted to the interrogation room. Appellant was first advised orally of his Miranda rights at 11:23 p.m., at which time he denied having committed the offenses for which he was arrested. an oral admission, he was advised After subsequently giving of his Miranda rights in writing at 12:26 a.m., whereupon he made a written confession in his own handwriting, which was completed at 1:30 on the morning - 3 of July 18, 1998. Thereafter, appellant s responses to follow- up questions, reduced to writing, were completed by 2:05 a.m. In his recantation, appellant indicated that he heard about a gentleman by the name of Mel who may have been involved in the shooting, but that he did not have any other information. When told that the detectives believed he possessed more information, appellant admitted that he knew about the shooting. According to Detective Lau, appellant said that he had a conversation with a friend of his he knew as Tavon or Davon and that appellant was upset because Barry Bland adamantly objected to his being involved with Bland s daughter, Battina. Appellant told intermediary the who could actually shoot Bland. detectives introduce that Davon appellant to would Mel be who an could Appellant would have to pay Mel $1,500 and Davon would provide Mel with the murder weapon. Appellant had driven Mel to Bland s residence where they lay in wait until the victim was seen proceeding to his home. After appellant followed Bland a short distance and parked his station wagon, Mel exited the vehicle and proceeded toward the residence of the victim, whereupon appellant gunshots and saw Mel running back toward the car. heard two The pair drove a short distance from the scene of the crime, where Mel threw the firearm into a wooded area and they then proceeded to Davon s house. Appellant provided the names of the trigger man - 4 and the individual who provided the murder weapon as Jamel Alexander Horsey and Davon Christopher Harris, respectively. As a result of the information obtained from the interrogation, appellant accompanied the detectives to an area off of Winands Road where a shotgun containing one spent shell and one live round was recovered in the weeds about fifty feet off of the roadway. Detective Lau testified that appellant first arrived in the interrogation room at approximately 10:20 to 10:40 p.m. and that he was first advised of his Miranda rights at 11:23 p.m. detectives had begun explaining the charges to The appellant immediately after he was escorted to the interrogation room. Over the objection of appellant s trial counsel, Detective Lau testified that the victim had made a statement to the emergency personnel arriving at the scene that he had had a problem with appellant and (referring to that the he believed assault). The appellant detectives was had behind also this had a positive identification of appellant s vehicle and appellant as the person who was driving that vehicle seen leaving the scene of the shooting. After the State had rested its case-in-chief on the motion, appellant s trial counsel presented the following argument to the court in support of his assertion that the State had failed to prove voluntariness: - 5 Second, [prosecution] according to the Hof case, H-o-f, the most recent detailed exploration of the law of confessions in Maryland has four burdens of proof. First he must prove compliance with Miranda. Second, he must prove that there was an absence under the Maryland common law of any promises, threats, inducements or coercion, including the use of physical force. It s his affirmative burden of proof. [The prosecution] asked one question about that. And he made no effort in any other way to meet that burden. The question he asked was, did you make any promises to the [appellant] at the police station? No. Did you threaten him at the police station? No. That was it. No question about inducements. No question about coercion, using physical force, nothing. Now, the courts have made it clear that [the prosecution] has the burden affirmatively of proving that. He just can t produce an incomplete record and then shift the burden to us to disprove it. It s been the law for a very, very long time as Hof states it. Now, Hof incidently, Judge, is 337 Maryland, 581, 1995. I believe it was a unanimous opinion written by Judge Bell overruling Judge Moylan s panel, where Judge Moylan said that all you have to do to satisfy Maryland and Constitution requirements is to show compliance with Miranda. They said no. . . . And so they have not directly proved the absence of inducements or coercion, including the use of physical force, and the case law makes it clear in a long line of cases which talk about the difference between an inducement and a promise. They are not synonymous. They are not synonymous under our law. And a threat is not the only coercion that can be done to a defendant, so if you are going to use anticipatory rebuttal you have to - 6 cover the waterfront, they, the cases make it clear. . . . Now, with those tremendous advantages the Court of Appeals has said to the State s Attorney, you bear the affirmative burden of going forward with the evidence to prove the utter absence of any promise. The utter absence of any threat. The utter absence of any inducement. And the cases say as to those three, however slight. Now, Hof goes on to say that there is also a Constitutional burden to prove the absence of coercion. Because as they point out, Federal law is different than Maryland common law. Maryland common law is much more restrictive as to what the State has to do. And there are [sic] a long line of cases which repeat that. And so the State had a chance and the obligation to prove the absence of inducements; they didn t. The State had an opportunity to prove the absence of any physical force or other coercive behavior, other than threats. They didn t do it. And so this record shows unmistakably, that the State has failed to meet either under the Constitution requirement of proving affirmatively the absence of any coercion and the State law requirements, which absolutely require the State to do it, to the point that they have to prove it, that there weren t even the slightest promises, threats or inducements or the use of coercion. Appellant testified that the detectives had told him that eleven people had been executed that year, that he could be the next one, and that his life was in their hands. He further testified that he was told that the detectives could do what - 7 they want, that you have nobody, that he was told just tell us the truth, and we ll let you go home tonight. He testified that he did not understand the Miranda rights, that he had never read the card but had signed it anyway and that he never heard the word Miranda before and had no idea what it meant. In support of appellant s claim that he did not understand his Miranda warnings, he presented the testimony of psychiatrist Dr. Neil Blumberg who testified that appellant had a peculiar way of thinking, but not active psychosis and that his overall intelligence quotient was found to be in the low average range although two of the subscales, i.e. for vocabulary and common sense reasoning, placed him in a borderline retarded or borderline intellectual functioning range. Dr. Blumberg was unable to medical say with a reasonable degree of certainty whether appellant had the capacity to understand the Miranda rights and make a free and voluntary waiver of those rights, although his ultimate conclusion was that it was unlikely. Finally, Dr. Blumberg testified that it would be very difficult even on a good day for [appellant] to grasp this whole thing here, referring to the waiver form he signed containing the phrase, without threats, promises, force or duress, I do hereby waive my rights as set forth and do knowingly and voluntarily agree to be questioned and/or make a statement. - 8 Dr. Michael Spodak, testifying in rebuttal for the State, asserted that appellant may have had some learning disability and, in fact, may have had a personality disorder, but neither affliction had anything to do with his capacity to understand the terms in this Miranda waiver and to knowingly and voluntarily waive it. They may have things to do with how you get along in society, and how you get along with other people, and what the direction of your life is going to take. I don t think it has anything to do with his ability to understand those various words and what they mean. According to Dr. Spodak, none of the problems indicated in the tests administered by Dr. Blumberg were evident from appellant s past history and there was no clinically significant impairment to his day-to-day functions. had graduated classes or from tutors high and school was He noted that appellant without enrolled in the aid business of special management courses at a community college at the time of his arrest. There did not seem, in Dr. Spodak s view, to have been a history of being easily influenced by others and the vocabulary used in appellant s written statement was comparable to that used in the Miranda warning administered to him. Appellant testified that, on the night he was arrested, he was coming out of a third floor apartment at 7139 Rolling Bend Road when a guy standing about two stairs from the top said, - 9 I need to talk to you. As he descended the stairs, one of the officers shoved him down the stairs and into a glass window at the bottom of the stairwell. hard in each The police, he said, pressed a gun temple and two weapons against his back as an officer patted him down. The officers then put shackles on his legs and handcuffed him behind his back. After he was escorted to the police vehicle, Detective Taylor asked him whether anyone called him Johnny to which he responded in the affirmative. Detective Taylor then asked whether he had anything in his pockets and, before he could respond, Detective Taylor retrieved appellant s car keys from his pocket. When asked where his car was, appellant pointed with his head in the direction of the apartment building. As Detective Lau drove away from the scene, appellant asked where they were going, to which the police responded, we re going to our office. thirty-five and Appellant estimated that it took between forty-five minutes to arrive at police headquarters; during the ride he was asked his name, address, and date of birth. He was further asked if he knew why he had been taken into custody, to which he responded that he did not know. When he arrived at the interrogation room, appellant asserted, no one had read him his rights and Detective Taylor refused to loosen the handcuffs when asked. After again asking appellant if he knew why he was there, the officers asked him - 10 what he knew about Bland s shooting that took place on Wednesday night, to which appellant responded, nothing. According to appellant, he was then told to tell the truth, that all the crying was not going to help him, and that he better just start talking. Do you He gave an oral statement, he said, when asked again, know about Mr. Bland s shooting? Ten to fifteen minutes had elapsed from the time appellant was first brought to the interrogation room to the time he began giving his oral statement, which he gave because everything that was running just through my brain. I mean it was just racing through, right through my brain, everything that they had told me. frightened. I was I was just trying to do anything so I could go home. He attributed the change in his responses from I didn t know what happened to telling the police what happened because . . . [t]hey told me that I was going to get the death penalty. I could go home if I just came on this side of the table. So I was just following by what they were they were doing. After giving his oral statement, Detective Lau read questions to him from a business card and told him to initial them by the number; appellant added that Detective Lau did not ask whether he understood what was read and that he initialed the card because he was frightened and did not know what else the police could have done to him. - 11 He further claimed that no one had ever read those things to him before and that he did not read what was on the card when he initialed next to every number. Detective Lau then directed him to write everything he had said in the oral statement on a pad that he provided for appellant; that he wrote about three pages on the pad and that after he wrote these three pages, Detective Lau produced a piece of white paper which contained the same questions he had asked before on the card. He was then told to write everything in the statement that appellant had previously written on the yellow paper. He was asked additional questions and gave answers thereto after he had rewritten his statement on the printed form. Appellant maintained that he had never heard the word Miranda and that he only initialed the forms because he was frightened because his life was in the detectives hands. When he asked whether he was going home right now, he was told that he first had to take them where the guy who shot Mr. Bland and the guy the gun is from. When he again asked whether he was going home after he complied with their request, the police told appellant that he was going to process down in the Baltimore County Detention Center. With respect to his understanding of the information contained on the Miranda card, he responded some of the words - 12 are on here, I don t exactly understand what they mean. He could not understand or pronounce the word decide, the word insist, the word cease, the word secure, the word absolute, the word desire, and the word affirmative. He acknowledged that no one suggested that they were going to shoot him, but he was thinking that Detective Taylor, seated in the back of the car, had a gun and could have pointed the gun toward his head. Dr. Blumberg testified that appellant, having taken an MRI and an EEG,1 could have presented himself to Dr. Donner and Dr. Blumberg as a person who is mentally ill by exaggerating the symptoms but instead attempted to minimize psychological or psychiatric difficulties. opined that paranoid schizoid vulnerable arrest appellant s and to the severe personality kinds of interrogation. stresses Dr. deficits rendered he Blumberg presence of Dr. Blumberg further learning trait the him described and his extremely during his that the concluded sudden and frightening circumstances of his arrest at gunpoint would have diminished appellant s cognitive abilities such that, when coupled with his severe learning disability and his paranoid and schizotypal personality traits, he could not have 1 MRI is the designation for the medical procedure known as magnetic resonance imaging and EEG is the designation for electro encephalogram. - 13 intelligently, knowingly, and voluntarily waived his Miranda rights. The promises, threats, inducements, and coercive activities of the police, opined Dr. Blumberg, would have prevented appellant either from voluntarily waiving his Miranda rights or from giving a voluntary statement to the police, given his psychiatric and psychological problems and the diminution of his abilities because of stress. Dr. Blumberg further added that any of the voluntariness factors about which appellant testified would have, appellant either from singularly knowingly and or in combination, voluntarily waiving prevented his Miranda rights in giving a voluntary statement to the police. Dr. Spodak, on the other hand, testified that appellant had some learning problems, that he does have a learning disorder, and that he does have a personality disorder, but that he did not believe any of those disorders had anything to do with his capacity to understand the terms of his Miranda waiver and to knowingly mental or and voluntarily emotional execute condition the which waiver. impairs There was ability no to understand Miranda rights, according to Dr. Spodak, and there was the absence of any indication that he was suffering from a major mental illness which had psychotic symptoms to it such as mental retardation. The three Miranda warnings Dr. Spodak - 14 had asked appellant to explain were: (1) you have the right to remain silent, (2) anything you say can and will be used against you in a court of law, and (3) you have a right to talk to an attorney present thereafter. call Detective before you re questioned and have them The court denied the State s request to Taylor to specifically rebut appellant s testimony, finding that the testimony was not proper rebuttal. Subsequent to the ruling of the motions court (Levitz, J.) that the statements were admissible, appellant agreed to proceed on an agreed statement of facts in lieu of a jury trial, was found guilty and sentenced as noted hereinbefore. LEGAL ANALYSIS Characterizing the evidence presented by the State on the motion to suppress as scant, appellant initially claims that the trial court erred in finding that the State met its burden of proving voluntariness. The court opined: The court was disturbed by comments made during the three days that this hearing took of the nature that this court has never granted or a court in Baltimore County never grants a suppression hearing when it comes down to the word of the defendant against the word of the police. I was concerned by those remarks because, quite frankly, I know them to be not true. This court has granted suppression motions when the evidence was the testimony - 15 of a police officer and the testimony of a defendant only and I believed the testimony of the defendant. So I know the statement that that never happens is incorrect. At least it happens with me. Because I think that s my role and function. Certainly the issues that are to be addressed when confronting a motion to suppress is the totality of the circumstances regarding the voluntariness of a defendant s statement. The court, in all of the appellate cases is required to consider all the factors surrounding the taking of a statement by the police and must be convinced by a preponderance of the evidence that that statement was the product of the defendant s free will. That the statement was not the product of force or coercion, that it was voluntary in every sense of the word. The appellate courts have said to us that we should look at various factors when making this determination. Factors such as the conversations, if any, between the police and the defendant, whether the defendant was warned of his [or her] rights, commonly referred to as the Miranda warnings, the length of time that the defendant was questioned, who was present, the mental and physical condition of the defendant, whether the defendant was subjected to force or threat of force by the police, the age, background, experience, education, character, intelligence of the defendant, whether the defendant was taken before a District Court Commissioner without unnecessary delay following arrest, and if not, whether that affected the voluntariness of the statement. And any other circumstances surrounding the taking of the statement. I had attempted to consider each of the factors that I am required to consider, and over the three days of testimony that was - 16 presented in this motion I have heard just about everything I think there is to hear about this case. . . . I find as a fact that the [appellant] was given his Miranda warnings on two occasions. Shortly after he was arrested one, approximately an hour to an hour and a half [sic] after the time that the SWAT team arrested the [appellant]. Much has been made that this was improper. That the arrest procedure was somehow improper. I don t find that it was. Quite frankly, I can t imagine a police officer or officers arresting someone who is involved in the shooting, the assassination attempt, I assume, of a victim where the victim is shot, not employing the kind of tactics that were used. Are the police to approach such a person delicately, nicely, with all the courtesies extended? I don t think that that s required. I think the police can and should do what is necessary to bring such a person who is suspected of such a crime under immediate control without being subjected to danger that such a person may present to the police. They don t know. They don t know what s involved. They don t know whether the [appellant] has a gun or doesn t have a gun. Somebody s been shot. The [appellant s] being arrested for an attempted murder. It seems to me that what the police did in the arrest, while certainly not being delicate in the sense of our sensibilities, I mean, this [appellant] was not physically harmed, he was arrested with the amount of force that I think is not uncalled for in a case like this. . . . It has been argued to me that there has been no evidence presented that the [appellant] was not promised, was not - 17 threatened, was not forced to make a statement. . . . Such evidence (has) been introduced by the State in its case[-]in[-] chief. The statement, the Miranda card, separate from the statement, which also includes Miranda warnings, were introduced. They were in evidence, along with Detective Lau s testimony that he did not make any promises or threats to the [appellant]. I find that the statement was voluntary, that the [appellant s] will was not overborne at the time he confessed. The State elicited the following testimony from Detective Lau: Q. During your interview with the [appellant] did he ever ask to speak with a lawyer? A. No, sir. Q. During your interview with [appellant] did you promise anything? A. No, sir. Q. Did you threaten him in any fashion? A. No, sir. the him - 18 - I A BURDEN OF PROOF FOR VOLUNTARINESS Voluntariness: The Federal Standard The Supreme Court has held that a criminal defendant who challenges the voluntariness of a confession made to officials and sought to be used against him at his trial has a due process right to a reliable determination that the confession was in fact voluntarily given and not the outcome of coercion which the Constitution forbids. Jackson v. Denno, 378 U.S. 36 (1964). Since Jackson, State and federal courts have addressed the issue of what standard of proof is needed to judge the voluntariness of confessions. In Lego v. Twomey, 404 U.S. 477, 482 (1972), a defendant challenged his guilty verdict, stating that he was not proven guilty beyond a reasonable doubt because the confession used against him at his trial had been proved voluntary only by a preponderance of the evidence. Although the Court noted that implicit in [his] claim is an assumption that a voluntariness hearing is verdicts, suppression designed the Court hearing to enhance maintained is the the that reliability the true determination of of purpose whether jury of a the - 19 confession was confession. coerced, Id. at not 485 the n.12. exclusion Although of an there unreliable may be a relationship between the involuntariness of a confession and its unreliability, the issue of whether [the confession is] true or false is irrelevant. Id. at 484 & n.12. Thus, the use of coerced confessions, whether true or false, is forbidden solely because the Id. at 485. method used offends constitutional principles. [This] procedure . . . was designed to safeguard the right of an individual, entirely apart from his guilt or innocence, not to be compelled to condemn himself by his own utterances. Id. Because the purpose of a voluntariness hearing cannot serve to improve the reliability of jury verdicts, the Supreme Court found that the admissibility of a confession does not need to meet the higher standard of beyond a reasonable doubt. at 489. See id. The prosecution, in a federal trial, must prove at least by a preponderance of the evidence that the confession was voluntary. Id. In dicta, the Court was mindful of the notion that states are free, pursuant to their own law, to adopt a higher standard. . . . [and] they may indeed differ as to the appropriate resolution of the values they find at stake. 2 2 Id. State courts that have considered the question since the Jackson v. Denno case have adopted a variety of standards, most of them founded upon state law. . . . Many have sanctioned a standard of proof less strict than beyond a (continued...) - 20 Voluntariness: The Maryland Standard Five years ago, in Hof v. State, the Court of Appeals stated the standard of proof the State must shoulder on the issue of voluntariness of a confession. on prior court decisions, See 337 Md. 581 (1995). the Hof Court held that Relying Maryland requires a two-tier approach, i.e., that the voluntariness of an accused s statement be proven twice. Id. at 604; see e.g., Hillard v. State, 286 Md. 145, 151 (1979); Dempsey v. State, 277 Md. 134, 150-54 (1976); Day v. State, 196 Md. 384, 399 (1950). First, the State must prove to the satisfaction of the trial judge that the confession was voluntarily made. Md. at 151. Second, if the court finds Hillard, 286 the statement admissible, the trier of fact, be it court or jury, must be satisfied beyond a reasonable freely and voluntarily made. doubt Id. that the confession was The State has the burden of establishing voluntariness by a preponderance of the evidence at a suppression hearing. See Hof, 337 Md. at 605. At trial, on the other hand, as with all the elements of the State s case, its burden of proof for voluntariness is beyond a reasonable 2 (...continued) reasonable doubt, including proof of voluntariness by a preponderance of the evidence or to the satisfaction of the court or proof of voluntariness in fact. See Twomey, 404 U.S. at 479 n.1. Other States, however, require proof beyond a reasonable doubt. See id. - 21 doubt. See id.; Hillard, 286 Md. at 151; Gill v. State, 265 Md. 350 (1972). The Court of Appeals observed in Gill v. State that, when there is a bench trial, the court must perform dual functions. Gill, 265 Md. at 359. The trial court s initial determination of the voluntariness of a confession will be based on both law and fact to ascertain whether prima facie proof exists as to its voluntariness. See id. at 358-59. If the trial court admits the confession into evidence, that evidence should be reviewed by him in his fact[-]finding role, taking into account all the - 22 testimony presented at trial, 3 and in deciding confession was voluntary beyond a reasonable doubt. We note that, although this two-tiered whether the Id. at 359. approach to determining the voluntariness of a confession is the current law with respect to Maryland criminal procedure, it was not always 3 The prosecutor advised the court during the course of its recitation of the factual basis: The [appellant] ultimately gives the police an oral statement. The detectives asked him if he would like to write it down. He says he would. I introduce State s Exhibit Number Two, an eight page statement also addressed at motions. The [c]ourt can see the first three and a half pages are the [appellant s] own handwriting and the remaining pages with questions and answers posed by the Baltimore County Police to the [appellant]. He answered and wrote his answers down. Appellant s statement was then received into evidence. Because the parties proceeded on a not guilty agreed statement of facts, appellant s counsel merely indicated at the conclusion of the State s recitation of the factual basis: If I could just have one minute. Your Honor, providing that all of the issues surrounding the statement can be litigated on appeal, and that would be the statement itself, of course, and any fruits of the statement, because I didn t intend to abandon that, I have no problem with the statement of facts and we would agree to proceed in this fashion. Subsequently, the lower court made a perfunctory ruling, denying the motion for judgment of acquittal and announcing: The [c]ourt has considered the statement and the exhibits. I am persuaded beyond a reasonable doubt of the [appellant s] guilt under count one and count two of attempted first degree murder and conspiracy to commit attempted first degree murder. The verdicts are respectively guilty. Thus, the court s role in determining whether the State had shouldered its burden of proving all of the elements of the offenses charged beyond a reasonable doubt, including the voluntariness of appellant s statement, was severely curtailed as the evidence offered on the motion to suppress essentially served as the basis for the court s ruling on the merits. - 23 such. In Nicholson v. State, 38 Md. 140, 148-49 (1873), a case decided over one hundred years ago, yet still cited in decisions by this Court and the Court of Appeals, (see Hof, 337 Md. at 595; see generally, Pappaconstantinou v. State, 352 Md. 167, 174 (1998); Ball v. State, 347 Md. 156, 1176 (1997); Hillard v. State, 286 Md. 145, 151 (1979); McCleary v. State, 122 Md. 394 (1914); Biscoe v. State, 67 Md. 6 (1887); West v. State, 124 Md. App. 147, 157 (1998); In re Joshua David C., 116 Md. App. 580, 603 (1997), Holmes v. State, 67 Md. App. 580, 603 (1997)), the law clearly was that the burden is on the State to prove with certainty, beyond doubt, that no inducement had been offered. Further, all the evidence submitted on this preliminary point [must be] . . . passed upon by the Court, without leaving to the jury to settle the question as to the admissibility of the confession, . . . Id. at 149. We also noted, quoting Lego v. Twomey, 404 U.S. at 489, that the prosecution must prove at least by a preponderance of the evidence that the confession was voluntary. 67 Md. App. 244, 250 (1986). Holmes v. State, Assuming, arguendo, that the State has proven by at least a preponderance of the evidence that appellant s statement was voluntarily made, we conclude that, because appellant proceeded by way of an agreed statement of - 24 facts, this required the trial court to assume the role of trier of fact and view the confession under the stricter standard. In deciding whether the trial court erred in considering the confession, we note that, although a great deal must be left to the discretion of the judge, when there is direct conflict as to the factors surrounding the confession, and when there is an even balancing there is of testimony authority ample the for of appellant rejecting the McCleary v. State, 122 Md. 394, 407 (1914). and the State, confession. See Applying the two- tier approach outlined in Hof, we first look to see whether the trial judge erred in his discretionary capacity when applying the rule of law to the facts and circumstances surrounding the confession; and second, in his role as fact finder, whether he erroneously determined that the confession was voluntary beyond a reasonable doubt and therefore gave it weight in his final decision. Resolving the question of the voluntariness of the confession requires the trier of fact to examine the totality of the circumstances confession. surrounding the obtention of a defendant s See Hof, 337 Md. at 596-97; Lodowski v. State, 307 Md. 233, 254-55 (1986); In re Joshua David C., 116 Md. App. at 599. If voluntarily there made, is any i.e., doubt if it that was the confession induced by was force, not undue - 25 influence, improper promises, or threats, it must be rejected. See Hoey v. State, 311 Md. 473, 483 (1988). We stated in In re Joshua, 116 Md. App. at 599: In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing; we do not consider the record of the trial itself. We extend great deference to the findings of fact and determinations of credibility made by the suppression hearing judge. Indeed, we accept the facts as found by the hearing judge, unless clearly erroneous. In addition, we review the evidence in the light most favorable to the State. Nevertheless, this Court must make its own independent constitutional determination as to the admissibility of the confession, by examining the law and applying it to the facts of the case. (Citations omitted); see West v. State, 124 Md. App. 147, 155 (1998). We must also consider whether the accused's will was overborne" or whether his confession was the product of a rational intellect and a free will and whether the accused knew and understood what he was saying. at 599. (citing Lodowski, 307 Md. at 254 and State v. Hill, 2 Md. App. 594, 601-02 (1967)). whether In re Joshua, 115 Md. App. the State has shown Our first inquiry, therefore, is affirmatively that appellant s statement was freely and voluntarily made, i.e., that it was not a product of coercion, a threat, a promise, or an inducement. - 26 - B THE INSTANT CASE Voluntariness of Waiver per Miranda Appellant contends that his mental condition and cognitive deficiencies prevented him from understanding the waiver form which was being read to him as far as his rights were concerned. In this regard, appellant claims that he did not knowingly or voluntarily waive those rights. that he cease, did not understand secure, containing He stated on cross-examination Miranda the words decide, absolute, and affirmative warnings. He insisted insist, the card re-direct on on that Detectives Lau and Taylor never explained these words to him. Appellant ultimately contends that his due process rights under the Fourteenth Amendment were violated when the trial court admitted appellant s involuntary statements to the detectives. At the outset, the State points out that, at the motions hearing, appellant never contended that he did not understand the waiver on the statement form, . . . rather he contended that he did not understand his Miranda rights, a proposition that the recounts Blumberg, concepts motions the squarely rejected. testimony who in court of appellant s observed that appellant the Miranda waiver form The expert that also witness, understood and State the his Dr. basic lack of - 27 comprehension of various words, including duress, while testifying on the stand, was considerably more impaired than when I saw him in the office. The State further replies to appellant s claim that the waiver form was defective because it omitted the word coercion by urging that, without threats, promises, force or duress, universe of coercion. before the trial would seem to cover the entire The gravamen of appellant s argument court was that he did not understand the Miranda warnings rather than the defectiveness, vel non, of the waiver form in omitting the word, coercion. Procedurally, refutation of any allegations of coercion by the police at the suppression alleged hearing, defect discussion, in if believed, the waiver form we begin our would supra, have immaterial. analysis rendered As mindful the with our that our appellate role requires us to defer to the fact finding of the lower court, including the credibility of the witnesses, and more particularly that of appellant. The court found that it was incredible that appellant had never heard these (Miranda) rights before and that he had no idea what these rights were and that it further found that he was advised signature on two indicating understood them. separate the occasions rights were as read evidenced to him by his and he - 28 More specifically, the judge stated: The [appellant] claims that he was given his rights but he didn t understand them. Much time was spent in this motion about that. The [appellant] represented to me that he had never heard these rights before. That he had no idea what these rights were. Quite frankly, I find that to be incredible. I don t believe that there is a person in the United States of America who is over the age of 13, or probably lower, who hasn t heard the Miranda warnings numerous times. You can t watch television, you can t go to the movies without knowing them, without knowing the Miranda rights. Elementary school children know what the Miranda rights are. They may not know that it s Miranda and they may not know the exact wording, but it s incredible to me that an adult person who reaches 18 years of age in this society, in this community has never heard, has no idea that they have the right to remain silent, that they have a right to an attorney, that they can not [sic] talk to the police. It would be incredible to me. I find that the [appellant] was given his rights. He acknowledged on two separate occasions by his signature, by his initials that the rights were read to him, and that he understood them. And most importantly, what he said was, without threats, promises, force, duress, I do hereby waive my rights and do knowingly and voluntarily agree to be questioned an[d]/or make a statement. Appellant offered extensive testimony through his expert witness, psychiatrist Dr. Neil Blumberg, who stated appellant had a peculiar way of thinking and that his overall intelligence quotient was found to be in the low average range - 29 although two of the subscales, i.e. for vocabulary and common sense reasoning, placed him in a borderline retarded or borderline intellectual functioning range. This testimony was offered to support appellant s claim that he was incapable of understanding the rights contained on the Miranda waiver form he executed. In assessing whether the admission of appellant s statement violates his due process rights, we first look to the standard as set forth in the Supreme Court s decision of Colorado v. Connelly, 479 U.S. 157, 164 (1986), which states that, absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law. mental condition is considered voluntariness determination. but one Id. A defendant s factor As the Court opined: [A]s interrogators have turned to more subtle forms of psychological persuasion, courts have found the mental condition of the defendant a more significant factor in the voluntariness calculus. But this fact does not justify a conclusion that a defendant s mental condition, by itself and apart from its relation to official coercion, should ever dispose of the inquiry into constitutional voluntariness. Id. at 164 (emphasis added). in the - 30 In holding that reckless police practices regarding withholding information from a suspect s attorney are ethically objectionable, the Supreme Court nevertheless reasoned: (W)hether intentional or inadvertent, the state of mind of the police is irrelevant to the question of the intelligence and voluntariness of respondent s election to abandon his rights. . . . . . . Granting that the deliberate or reckless withholding of information is objectionable as a matter of ethics, such conduct is only relevant to the constitutional validity of a waiver if it deprives a defendant of knowledge essential to his [or her] ability to understand the nature of his [or her] rights and the consequences of abandoning them. Because respondent s voluntary decision to speak was made with full awareness and comprehension of all the information Miranda requires the police to convey, the waivers were valid. Moran v. Burdine, 475 U.S. 412, 423-24 (emphasis added; citations omitted). In the case sub judice, appellant argues that his learning deficiency, his insufficient vocabulary and poor reading skills, combined with the circumstances surrounding his arrest created significant duress to preclude voluntary statement. voluntariness ability however, of him from giving any kind of We agree that our determination of the that statement turns on appellant s mental in light of the circumstances attendant his arrest; appellant fails to factor into the equation the - 31 prerogative of the fact-finder to extrapolate from the first level facts and reach its own conclusion as to whether the actions of appellant, i.e., writing out a coherent four-page confession, succumbed to coupled with coercive the or expert inducive testimony, actions of indicate the police he in deciding to execute the waiver term. The Court of Appeals faced a similar situation in Bean v. State, 234 Md. 432, wherein the defendant, who was fifteen years old with a full scale intelligence quotient (I.Q.) of 74, claimed that his confession should not be admissible because, along with the interrogations, deficiency. coercive he was nature suffering See id. at 440. of his from arrest an and the intellectual The Court, however, noted the following: The appellant also contends that his age and mental ability rendered the confession involuntary, since he was only 15 years old and, according to a psychologist, had a full scale I.Q. of 74 at the time of the confession. While these factors were properly considered by the trial judges, they were not sufficient to make the confession inadmissable. The appellant had sufficient reasoning ability to give the sheriff an alibi when he was first accosted, and was self-assertive enough to curse the sheriff when the fragments of burned clothing were found later. The record shows that his testimony was alert and lucid when he took the stand for the limited purpose of discussing the confession. A psychiatrist who examined him when he was sent to Clifton - 32 T. Perkins State hospital for examination found the appellant to be sane, and further stated that he was attentive, cooperative, surprisingly polite and quite serious about the proceedings. . . . We think the evidence supported the trial court s finding that the appellant s mental condition was such that he realized the significance of what he was doing when he confessed. Similarly, in the case before us, the trial court found that appellant had been given his Miranda warnings on two occasions shortly after he was arrested and again prior to his written confession and that appellant acknowledged on both occasions, by his signature, that he understood those rights. He was told that he had the right to an attorney and he never asked for one. Significantly, the trial court noted that appellant wrote and signed his manner. written The confession in further stated court a coherent and for record the intelligent that it attempted to consider each of the factors that [it] is required to consider, and over the three days of testimony that was presented in this motion [it has] heard just about everything . . . there is to hear about this case. sufficient to support the trial We think the evidence is court s finding that the appellant knowingly and voluntarily waived his Miranda rights and that appellant s mental condition was such that he realized the significance of what he was doing when he confessed. trial court did not abuse its discretion in finding The that - 33 appellant knowingly executed the Miranda form waiving his constitutional right not to give a statement to the police. Rebuttal of Allegations of Appellant: 278 (1965)] Streams v. State [238 Md. Appellant complains that Detective Taylor was present in the interrogation room during the questioning, but only Detective Lau testified that he did not threaten appellant or promise him anything. More specifically, appellant avers: No evidence was produced either in the form of general testimony from Detective Lau or in the form of direct testimony from Detective Taylor himself to show that Detective Taylor made no promises, threats, or inducements, and that he had not done or said anything demonstrating undue influence or coercion, including the use of physical force either after the arrest, during the car ride or at any time before or during the interview itself. Appellant argued that no evidence was presented that he was not promised, threatened, or forced to make a statement. That argument, the court determined, was countered by the executed Miranda warnings introduced into evidence along with Detective Lau s testimony that he did not make any promises or threats to the [appellant]. When asked if there was any time when you were . . . questioning [appellant] where the other detective was outside the room[,] Detective Lau answered No. Detective Taylor and - 34 myself were in the room the whole time. detective appellant inducements, alleges Detective Lau employed was asked With respect to which coercive whether or improper the writing authored by Detective Taylor was done in his presence to which Detective Lau responded, That night, it may have, may not have. The actions attributed to Detective Lau by appellant were: He told me that he said that, you know, A lot of people got executed this year. And he said that all life Your life is in our hands. We can go do what we want. You have nobody. . . . Q. Did he ask you whether you understood what he said? A. No, he didn t. . . . Q. All right. Now, did you suddenly not know how to write? In other words, did you tell the detective anything like, I can t write anymore, or, I m suddenly unable to write[?] A. No. Q. Were you still able to write at that point? A. Yes. Q. Now, let me just go to question three. Did you and do you understand your Miranda rights? And there s is that in your handwriting? A. No, that s not my handwriting. - 35 Appellant testified as follows regarding allegations against both detectives or actions for which he could not recall who was responsible: As soon as I finished giving my oral statement, if I m not mistaken, one of the detectives, I don t remember, pulled out a thing that was I think Detective Lau who pulled out like a wallet like a business card wallet and this card with questions on it. . . . They told me if I told the truth I could go home. And then he told me that, you know, Eleven people died were executed this year. You could be the next one. And then I think he told me, You could be the next one. I was frightened. I was scared. I asked him, Can I use the phone[?] and he said, No. You re 18. . . . They told my [sic] that my life was in their hands. They could do what they wanted with me. And as soon as I asked them Can I use the phone[?] they said, No. You re 18. I said, Well, I want to call my parents. . . . They asked [sic] me if I told the truth, I could go home. . . . I mean, they told me to tell the truth. Whatever I say can help me. Tell the truth. . . . - 36 They told me that I was going to get death penalty. I could go home if I came on this side of the table. So I just following by what they were they doing. the just was were . . . I mean, I was frightened. I didn t know what else they could have done to me. They said my life was in their hands. I was just going by . . . Because I didn t read it. what it was. I didn t know Q. Why didn t you read it? A. Because I was I mean, everything they said to me before was just was just going through my brain. I was frightened. I was scared. . . . Well, up to right here is mine, and then the rest is where the detective put the line down there. Q. Okay. Now, whose signature is this right at the bottom of your handwriting? A. I don t remember which detective signed, but that s not my handwriting. Finally, appellant testified regarding actions by Detective Taylor as follows: [APPELLANT S COUNSEL]: Now, let me show you page five. It starts out by Detective Taylor says, [sic] Did Detective Taylor and/or - 37 Detective Lau promise anything or trick you into cooperating? Do you see that? [APPELLANT]: Yes. [APPELLANT S COUNSEL]: Okay. And is handwriting where no ? [APPELLANT]: Appellant it it your says No, that s not my handwriting. specifically accused Detective Taylor, while inside the police vehicle, of refusing to loosen his handcuffs when asked and, according to appellant, was yelling the whole time. These were the only two allegations made personally against Detective Taylor by appellant; the remaining allegations were either made against Detective Lau, both detectives, or appellant was not sure which detective was saying things to him. Included in the statements for which attribution was uncertain were: you know Mr. Bland (the victim) is undergoing surgery at Johns Hopkins, and it can be worse than this ; we re on the good side of the table and you re on the bad side of the table, if you tell the truth you come on this side of the table and you can go home tonight ; if the victim dies it could be worse for you, than it is now ; and eleven people were executed this year; you could be the next one; your life is in our hands; we can do what we want; you have nobody. Appellant was unable - 38 to say who told him all the crying is not going to help you; just tell us the truth and we ll let you go home tonight. With respect to promises, threats, inducements, or coercion, appellant maintains Detective Lau was that that the only appellant testimony never elicited asked to speak from to a lawyer and that the witness never promised appellant anything or threatened him in any fashion. He complains that no testimony was presented regarding the conduct of the detectives before the interview or subsequent thereto. of threats interview, allegations statements. Evidence regarding the absence and promises by posits appellant, insufficiently of He promises, further Detective threats, contends Lau rebuts inducements, that during and Detective Lau the specific coercive made no general denial that promises, threats, or inducements were made or that force or coercion was employed by any other officer. Specifically, appellant contends that, despite the fact that Detective Taylor was present during the entire interrogation, Detective Lau was only questioned as to his actions during the interview and that no testimony was elicited from Detective Lau to attempt to prove that he had made no promises, threats, or inducements at any time after the arrest or that he had used coercion or force during the time that appellant was transported or at any other time before the statement was obtained. Appellant also contends that the court erroneously relied on the - 39 standard form, which provides without threats, promises, force, or duress, I do hereby waive my rights as set forth and do knowingly and voluntarily agree to be questioned and/or make a statement, because that language failed to include inducements or coercion. Finally, appellant attempts to extend the Streams requirement to the testimony of Dr. Blumberg, asserting that the unrebutted testimony of Dr. Blumberg was that [appellant] did not understand the word duress because he had a learning disability, an insufficient vocabulary, and poor reading skills. In support of his assertion that an inducement may occur under circumstances when, technically, there is no promise or threat, appellant cites Clark v. State, 48 Md. App. 637, cert. denied, 291 Md. 773 (1981), wherein we held: In Biscoe [v. State, 67 Md. 6 (1887)], the Court held a statement to be impermissibly induced where the accused was told that it would be better for him to tell the truth and have no more trouble about it, even when he was also told that no promises could be made. The Court stated: The prisoner was in the custody of the law, and although pressed, time and again, to make a confession, and pressed too by one in authority, he persisted in denying his guilt, and it was not until he was told that it would be better for him to tell the truth, and have no more trouble about it, - 40 that the confession was made. Here there was an inducement, and one, too, of the strongest kind held out to him . . . . It was, in fact, saying to the prisoner, if you will tell me the truth, it will not only be the [sic] better for you, but you shall have no more trouble about the matter. The Court of Appeals also has found improper inducements in the following: a statement to the accused that it would be possibly better for him if he would make a clean statement, so it would not appear erroneously in the papers . . . . officers statements that they would go to bat for the accused if a statement was made; a warning to the accused to let it out before (your co[-] defendant) squeals, for if you do not, (the co[-]defendant) will squeal before you, and you will get the worst of it ; telling the accused that although he didn t have to give a statement, it will help you a lot. Id. at 644-45 (citations omitted). Contrasting statements not considered coercive, the Court continued: On the other hand, the Court has held that mere exhortations to tell the truth, and nothing more, are not improper. I want you to tell the truth has been held not to be an improper inducement. Nicholson v. State[, 38 Md. 140 (1873)]. Similarly, in Deems v. State, 127 Md. 624 (1916), an officer s questions to the accused of why (didn t he) tell the truth and the statement that the truth would hurt no one did not render the confession inadmissible. In Merchant v. State, 217 Md. 61 (1958), the officer told the appellant, in response to a question, that he did not know if things - 41 would go easier if he made a statement and he could make no promises. He added, the truth hurts no one. The court did not think the generalization could be viewed as a promise of leniency, especially where the accused was told any statement could be used against him. Neither is it an improper inducement for an officer to tell an accused to get it off his chest. Bean v. State, 234 Md. 432 (1964). Id. at 645 (footnote omitted). Appellant also refers us to Nicholson v. State, 38 Md. 140 (1873), wherein the Court of Appeals held a statement to be impermissibly induced when the accused was told to let it out before (your co[-]defendant) squeals, for if you do not, (the co[-] defendant) will squeal before you, and you will get the worst of it. Also cited by appellant, is Lubinski v. State, 180 Md. 1 (1941), wherein the statement held to be an improper inducement was that giving a statement would help him a lot. In request response to to Detective call the court s Taylor ruling denying because his the State s testimony was - 42 merely repetitive, the State made a proffer4 of his testimony, essentially refuting appellant s allegations of coercion. The following transpired after the State s proffer: [PROSECUTION]: 4 That would be my proffer, [Y]our Honor. The proffer represented that: (1) [appellant] was advised of his Miranda rights consistent with what Detective Lau said, prior to any questioning taking place; (2) [appellant] never complained about the handcuffs being too tight and never asked for the handcuffs to be removed; (3) the police officers guns were in fact placed in a box well outside of the room; (4) [appellant s] demeanor was calm and he was never crying; (5) at no time did [appellant] ever say that he thought he was being arrested because of his driving record; (6) neither he nor Detective Lau ever said, Eleven people got the death penalty. Do you want to be the next one? ; (7) neither he nor Detective Law [sic] ever said that [appellant] was going to get a lethal injection if he didn t tell the truth; (8) neither one of them ever said [appellant] was going to get the death penalty; (9) neither detective ever said that We are on the good side of the table and -- we re on the good side of the table and you re on the bad side of the table. ; (10) neither detective ever said, If you tell the truth you can go home tonight ; (11) neither detective ever said, Your life is in our hands ; (12) the detectives never wrote any statement on a yellow pad, that the only statement that was written by the [appellant] in his own hand appears on the first four pages of State s Exhibit Number 3; (13) [appellant] was asked questions, and although the detective wrote answers, that they wrote them verbatim with what [appellant] said and he initialed them; (14) [appellant] never asked if he was going home that night; (15) neither detective ever said to the [appellant], If you tell us the truth you can go home tonight ; and (16) following the recovery of the shotgun, [appellant] was turned over to Officer Benton and he was taken to the commissioner at he was actually seen by the commissioner at 7:10 a.m. - 43 THE COURT: The court denied I will not allow him to testify.[5] It s not rebuttal. Almost everything you mentioned were things that were brought out on direct examination and crossexamination of Detective Lau. And in my opinion it s not rebuttal. the State s request to call Detective Taylor to specifically rebut appellant s testimony, finding that the testimony would be a recapitulation of matters about which Detective Lau had already testified and, as such, was not proper rebuttal. With assertions of respect improper to the coercion, State s threats, burden or to rebut inducements to obtain a confession, the Court of Appeals opined in Streams v. State, 238 Md. 278, 281-82 (1965): We do not agree with the appellant s contention that each person who has casual contact with the accused while he is detained by the police or who is present during the interrogations that lead to a confession must testify as to its voluntariness in order for the State to meet its burden. It may be enough if one credible witness can testify from personal observation that nothing was said or done prior to and during the obtention of the confession to mar or destroy its voluntary character and there is no claim by the 5 The State conceded at oral against the prosecution, that court of those matters raised by Taylor, and that the court should to be presented. argument before us that the court s ruling was the purpose of the proffer was to inform the appellant which could be refuted by Detective have allowed the testimony of Detective Taylor - 44 prisoner of improper treatment by than those covered by such testimony. others (Emphasis added; citations omitted.) Thus, the failure of a police officer, involved in the arrest and interrogation of a suspect, to take the stand and deny a direct accusation by the appellant would indicate that the State had failed to meet its constitutional burden to prove the voluntariness of the confession. Gill v. State, 11 Md. App. 378, 384 (1971); see Hutchinson v. State, 38 Md. App. 160, 163 (1977). As the Court of Appeals also has made clear, not . . . [every] person who had casual contact with the accused must testify as to the voluntariness of the confession, but when it is contended inducements to that obtain someone employed inculpatory coercive statements, tactics that or specific person must rebut the allegations of coercion as no one else is qualified to do so. Gill v. State, 265 Md. 350, 353-54 (1972). Our task, as we see it, is to determine from our review of the record whether the testimony offered by Detective Lau rebutted the allegations of improper police conduct in obtaining appellant s confession, including allegations regarding unduly coercive actions during the arrest and transporting of appellant to the there police were station. allegations Furthermore, lodged against we must decide Detective whether Taylor which were not rebutted by the testimony of Detective Lau and, if so, - 45 whether such allegations constituted violations of appellant s Due Process and Fifth federal Constitutions. to rebut overcome proper allegations rational police sweeping Amendment under the State and Of course, there would be no requirement of conduct intellect procedure. postulation Rights that or patently free will Moreover, there not and contrary were no calculated thus to to perfectly appellant s denials regarding promises or threats by any other officer or of improper police action subsequent to the interview, the State is not required to rebut that which has not been alleged. Appellant has made allegations only against Detectives Lau and Taylor and there are no allegations about improprieties after the interview. In the event that we conclude that allegations of violations of appellant s constitutional rights were not rebutted by Detective Lau s testimony, our inquiry must then address whether the constitutional defect in the proceedings compels our vacation of appellant s judgment of conviction. The trial judge s ruling, it should be noted, was based on his belief that Detective Lau s testimony preemptively rebutted appellant s testimony. At the outset, we decline to extend the requirement, under Streams, that the State rebut evidence of police misconduct to the testimony of an expert witness. Moreover, Dr. Spodak testified, I don t think it has anything to do with his ability - 46 to understand those various words and what they mean, which effectively rebuts appellant s assertion that he did not understand the word, duress, because of a learning disability, an insufficient vocabulary, and poor reading skills. The short answer to this contention is that Streams simply does not apply to evidence other than alleged police misbehavior. In essence, appellant s remaining complaints regarding the failure to rebut his allegations can be grouped into (1) failure of Detective Lau to testify about what occurred before and after the interview regarding his own actions and (2) what happened before, during, and after Detective Taylor s conduct. the interview with respect to As we have noted, there would, of course, be no need to offer any testimony about a point in time before, during, or after the interview when no specific allegation of impropriety had been lodged by appellant. Ironically and most telling is the proffer itself, which, we believe, is the most cogent outline of what should have been offered to rebut appellant s allegations. believe that Streams and Gill require Although we do not a point-by-point refutation of each and every allegation which does not rise to the level of a constitutional violation, Hof and In re: Joshua David C. instruct that voluntariness must be determined from the totality of the circumstances, including the point in time - 47 from arrest through the obtention of the statement. Appellant essentially posits that it is incumbent, under Streams and Gill, for the State to rebut each and every action which one in custody claims, from a purely subjective point of view, resulted in him giving a statement against his will. Although the State must rebut statements and actions by the police interrogators which the Court of Appeals and this Court have found to be improper coercion and inducements, we hold that neither Streams nor Gill requires a point-by-point refutation of each and every allegation as long as the State has shouldered its burden of production of evidence to refute allegations that someone employed coercive inculpatory statements. State has satisfied tactics or inducements to Gill, 265 Md. at 353-54. this requirement of obtain Once the Streams and Gill regarding coercive tactics or inducements, the motions judge in his or her role as fact finder, may determine voluntariness from the totality susceptibility of the circumstances, including appellant s to having his will overborne, the actions of the police that are coercive but for which the State has offered rebuttal evidence and the remaining actions of the police which are patently non-coercive obligation to rebut. for which the State would have no - 48 Consequently, although a general denial by one who was present throughout the time frame in question that there were no threats, coercion, inducements, or promises extended to obtain a statement may be sufficient under certain circumstances, such general denials must, at the very least, be a denial by one who is present that his or her fellow officer did not engage in coercive or allegations improper are lodged tactics in against his his or or her her presence fellow when officer. Although there may have been no requirement that the State rebut allegations that Detective Taylor yelled at appellant, appellant repeatedly asserted that it was Detective Taylor who refused to loosen his handcuffs. Under Gill, Detective Lau could have testified from his own personal observations with respect to coercion or improper inducements by Detective Taylor; however, Detective Lau was never asked specifically whether he observed Detective Taylor engage in any improper activity. Moreover, although Detective Lau stated that he and Detective Taylor were in the room the whole time, Detective Lau responded that he may have or may not have been present when the writing authored by Detective Taylor was penned. More important, In re: Joshua David C. and Hof require that the actions of the police during a suspect s arrest and events leading up to the obtention of the statement be factored into - 49 the voluntariness equation. To be sure, any person of normal sensitivity subjected to an arrest by several officers wherein force is employed would experience a certain level of fear. Although the circumstances (with the possible exception of being shoved into a glass door) as alleged by appellant surrounding his arrest were, in large part, in keeping with standard police procedure, the trial judge should have permitted the State to produce rebuttal testimony that the force appellant alleges was employed was exaggerated by him in his testimony. We note that, according to the proffer offered by the State, Detective Taylor was prepared to testify that appellant never complained about the handcuffs being too tight and never asked for them to be removed, that alleged, and appellant that he was never calm and indicated was he arrested because of his driving record. never felt he crying, was as being Detective Taylor was prepared to testify further that, after arriving at the police station, neither he nor Detective Lau ever stated that eleven men got the death penalty or that appellant was going to get a legal lethal injection if he did not tell the truth, or that appellant s life was in their hands, or that if appellant told the truth [he] [could] go home tonight. Detective Taylor was also prepared to testify that he never wrote any statement on a yellow pad, as alleged, and that, although the detectives wrote answers, they wrote them verbatim recording what appellant had - 50 said. Finally, Detective Taylor was prepared to testify that appellant never asked whether he was going home that night and that the detective transferred custody to Officer Benton who took appellant to be seen by the court commissioner at 7:10 a.m. We are persuaded that, although general denials may suffice as to certain specific allegations, in the case at hand, the items listed in the proffer should have been offered through the testimony of Detective Taylor to rebut appellant s allegations. At the very least, the motions court, in its role as fact finder, would have been in a better position to discharge its role in assessing credibility testimony to be admitted. had it allowed the proffered Finally, although the State summarily dismisses appellant s reliance on Clark, for the reasons stated therein as recapitulated, infra, citing Biscoe v. State, we are not persuaded that Detective Lau s denial that any promises were made is synonymous with a denial that there were no inducements extended. We conclude that the lower court erred in not allowing the State to appellant. represent produce testimony Obviously, appellant s to rebut because version some of specific of the allegations those by allegations totality of the circumstances, we are constrained to review the lower court s factual findings that were based on an incomplete evidentiary - 51 record. More specifically, although it was within the province of the lower court to believe or disbelieve the testimony of any witness called on behalf of appellant or the State, the court was procedurally required to make its finding regarding credibility on a record comprised of the State s response to allegations which rise to the level of constitutional violations. Neither the testimony of Detective Lau or the executed Miranda form responded to appellant s allegations regarding the events which occurred subsequent to his arrest and during the ride to the police station, particularly allegations against Detective Taylor. The State has failed to rebut significant allegations comprise which part of the totality circumstances under Hof and In re Joshua David C. of the Because under Hof and In re Joshua David C., voluntariness must be determined from the totality of the circumstances, including the point in time from arrest through the obtention of the statement, we shall vacate the judgment of conviction and remand the case for a hearing producing appellant. in which evidence the State will to rebut the be put to specific its burden allegations of of - 52 Traditional Voluntariness: The principal Product of Rational Intellect and Free Will thrust of appellant s claim that his confession was not voluntary is that he lacked the cognitive ability to understand that, pursuant to the Fourteenth and Fifth Amendments Arizona, he himself. during of the had a United States Constitution right not be to and compelled to Miranda v. incriminate Asserting that he was subjected to excessive force the course of his initial arrest and subsequent detention, however, citing the totality of the circumstances test set forth in Hof and In re Joshua David C., appellant also asserts his confession violated the traditional proscription against involuntary confessions because it was the product of an overborne will rather than a rational intellect and free will. Although we address separately herein traditional voluntariness, waiver of Miranda rights, the State s burden to rebut allegations confession and of the illegal propriety of police a action delay in to extract transporting a one arrested to a commissioner, these issues must be considered in conjunction with each other in determining, pursuant to the totality of the circumstances test, whether the police conduct vitiated the voluntariness of the confession. The State relies, in part, on the waiver form appellant signed in which he acknowledged waiving his rights knowingly and - 53 voluntarily without threats, promises, force or duress and agreeing to be questioned and/or make a statement. The trial judge declared that he did not believe that the officers promised appellant that he could go home if he told the truth. Appellant contends, however, that the statements regarding the good side and bad side of the table constituted hope of favor or fear of harm and thus, an improper inducement. McCleary, 122 Md. at 405 (citing Biscoe, 67 Md. at 8, wherein a statement to defendant that it would be better for [defendant] to tell the construed by truth and have the court as no more an trouble it was inducement improper about and the resulting confession was excluded). We are appraisal of circumstances required the in to make record our an employing determination appellant s confession. the present, interrogation how it was the of constitutional totality the of voluntariness the of In re Joshua David C., 116 Md. at 599 (quoting Hof, 337 Md. at 596-97). where independent was Those circumstances include conducted, conducted, its its length, content, who was whether the defendant was given Miranda warnings, the mental and physical condition of the defendant, education, character, the age, background, experience, the intelligence of the defendant, when the defendant was taken before a court commissioner following - 54 arrest, and whether the defendant was physically mistreated, physically intimidated, or psychologically pressured. Applying the factors set forth in Hof, Hoey, Lodowski, and In re Joshua David C., the trial judge found that by his execution of the waiver form, appellant acknowledged that what he said was without threats, promises, force, or duress and appellant waived his rights knowingly and voluntarily and agreed to be questioned and/or make a statement. In making the determination that a confession was not the product of coercion, promise or inducement, we look to the evidence adduced at the suppression hearing, giving deference to the trial court s determinations of credibility. In this regard, the State relied on the testimony of Detective Lau as well as appellant s written waiver of his Miranda rights. We find nothing inordinate about where the interrogation was conducted, its length or who was present. although appellant makes a frontal As discussed, supra, attack on whether he understood his Miranda warnings, there can be no question that they were administered on at least two separate occasions. With respect to appellant s age, background, experience, education, character, and intelligence nineteen-year-old attending graduate Catonsville at of the time Woodlawn Community of High College, trial, School, and had he had was a been been a - 55 newspaper delivery person for the Baltimore period of approximately two years. although appellant was no Sunpapers for a The lower court noted that, neurophysicist and was not particularly gifted intellectually, he is within the average to low average range of intelligence. The court further opined that it did not believe the mere fact of a learning disorder determines whether a statement is voluntary or involuntary. Significantly, the court observed that there was no dispute that appellant had written a four-page statement in his own handwriting and it found his testimony that the police just made it up and incredible. had him Expressing sign and disbelief, initial the it court to be wholly concluded that appellant had answered the questions as written and thereafter acknowledged his answers. Although appellant attempted to establish his mental deficiency through Dr. Blumberg, as we have discussed supra, that testimony was refuted by Dr. Spodak who acknowledged that appellant had a learning disorder as well as a personality disorders Miranda would rights disorder, have or from but opined prevented giving that appellant a voluntary neither from of these waiving statement to his the police. Thus, given the conflicts in the testimony of Dr. Blumberg and Dr. Spodak, it was within the province of the lower court to - 56 reject the findings of appellant s expert witness and credit that of Dr. Spodak. The lower court s observation that appellant had the ability to pen a coherent statement and was a high school graduate attending community college, coupled with the testimony of Dr. Spodak, supported the lower court s belief that appellant statement that had sufficient mental was a of product capacity rational to give intellect a when considered in light of the specific conduct of the police as found by the lower court. Appellant was arrested at approximately 9:48 p.m. on July 17, 1999, and was taken before a court commissioner at 7:18 a.m. on July 18, 1999, approximately nine and one-half hours later. Appellant complains that, on the night he was arrested, he was coming out of a residence on Rolling Bend Road when he was accosted by an officer who pushed him from the back, causing him to hit the glass door whereupon several officers trained their guns on him. As two officers pressed their guns against either side of appellant s head and two covered him from the rear, his legs were shackled and the officers handcuffed him behind the back. Frightened and shaking, he was escorted by three officers toward an unmarked police car in which Detective Lau occupied the driver s seat and Detective Taylor sat in the back seat beside appellant. According to appellant, they arrived at the interrogation room of the police station approximately twenty- - 57 five to forty-five minutes later. At 11:23 p.m. on July 17, 1998, appellant initially denied having committed the offenses for which he was arrested, but subsequently gave a written confession which was completed by 2:05 on the morning of July 18, 1998. The lower court found the actions of the arresting officers reasonable, observing, Quite frankly, I can t imagine a police officer or officers arresting someone who is involved in the shooting, or the assassination attempt . . . of a victim where the victim is shot, not employing the kind of tactics that were used. The court further expressed the view that the police can and should do what is necessary to bring such a person who is suspected of such a crime under immediate control without being subjected to danger that such a person may present to the police. Noting that the police may not have been delicate, appellant was not physically harmed and he was arrested with the amount of force, in the lower court s view, that was not uncalled for in a case like this. Our independent constitutional review essentially requires us to make two determinations from the record before us: (1) the ability of the accused to process the information regarding his custodial interrogation and make a rational choice given his age, background, experience, education, character, and mental and physical condition and (2) the circumstances attendant to - 58 appellant s custody, including where the interrogation was conducted, its length, who was present, how it was conducted, its content, whether appellant was taken before a commissioner following arrest, intimidated, or and whether he psychologically was physically pressured. mistreated, Our independent constitutional review requires us to engage in an analysis of the interplay between the vulnerability of the suspect on the one hand and the coercive or improper influences on the other hand. Although fully developed the on facts the regarding record, appellant s persona facts be those must are measured against the backdrop of the police conduct and whether he was subjected to a hostile appellant s will. instruct that the environment designed to wear down As to the second category, Streams and Gill trial court assess credibility after the record is fully developed as to allegations of coercive conduct which must be rebutted by the State. The court, however, put the cart before the horse. words, after decisions the court regarding had credibility before it a should complete In other have occurred record. As a consequence, the court s factual findings are derived from a record that is incomplete. Because the court refused to permit the State to respond to appellant s allegations of coercion and improper inducements, the record before us is not fully - 59 developed and we therefore cannot say whether the court erred in its determination that appellant s confession was voluntary applying the totality of the circumstances test. In sum, we are unable to measure appellant s susceptibility to coercive or improper influences with only one-half of the equation before us. determination understand that what Although the record supports the court s appellant his choices had were, the cognitive because of the ability to absence of rebuttal of allegations of improper police tactics, we cannot, on the record before us, conclude that the confession was voluntary in light of the court s factual findings derived from an insufficient record. II We are next asked whether it was reversible error for the trial court to find that the delay in the presentment of appellant to the Commissioner was not an unnecessary delay, as proscribed by Rule 4-212(f). Appellant was arrested on July 17, 1999 at approximately 9:48 p.m., he was presented to a judicial officer on July 18, 1999 at 7:18 a.m. Appellant contends that, because the police took him to the station for the purpose of questioning him about his involvement in the shooting of Bland, this constituted unnecessary delay as proscribed by Rule 4-212. - 60 Rule 4-212 requires that a defendant be taken before a judicial officer without unnecessary delay and in no event later than 24 hours after the arrest. The trial judge opined: The rule says that the police must take somebody before a commissioner not within any particular time period, not immediately after arrest. Doesn t say that. It says without unnecessary delay, and in no event more than 24 hours. Anybody who s been doing this kind of work for any period of time knows that there are cases where the police spend literally hours questioning someone, processing someone before that person is taken to a commissioner. Is that necessary delay or unnecessary delay, depends on the individual case. But in this case the amount of time that went by from the time the [appellant] was arrested there at that apartment house by the SWAT team to the time that he [was] presented before a commissioner certainly does not appear to me to be without unnecessary delay. It is not an overtly long period of time. The police don t have to, according to the rule[,] arrest and take to a commissioner. If that were the rule certainly I agree that would change police practices in this State, and in any other state where [if] that were the rule would turn them on their ear. For those reasons I find that the delay was not an unnecessary delay, and that Rule 4-212 was not violated. And in any event, it is now, since the Johnson case and the legislation has been passed that overruled the Johnson case holding that a statement had to be suppressed is a factor to be considered, as I have read. And I don t believe that factor had a thing to do with the [appellant s] voluntary decision to make - 61 a statement to the police. For the reasons that I have stated[,] the motion to suppress the statement is denied. Appellant argues that, because the officers did not take him directly to a judicial officer immediately after his arrest and prior to questioning, his confession should be excluded by virtue of the rule laid down in Johnson v. State, 282 Md. 314 (1978). The Court of Appeals held in Johnson, that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, . . . is subject to exclusion when offered into evidence against the defendant as part of the prosecution s case-in-chief, . . . . Id. at 328. Maryland Code (1998 Repl. Vol), Cts. & Jud. Proc. (C.J.) § 10-912 enacted after the Johnson decision, provides: Failure to take defendant before judicial officer after arrest. (a) Confession not rendered inadmissible. A confession may not be excluded from evidence solely because the defendant was not taken before a judicial officer after arrest within any time period specified by Title 4 of the Maryland Rules. (b) Effect of failure to comply strictly with Title 4 of the Maryland Rules. Failure to strictly comply with the provisions of Title 4 of the Maryland Rules pertaining to taking a defendant before a judicial officer after arrest is only one factor, among others, to be considered by the court in deciding the voluntariness and admissibility of a confession. - 62 Thus, pursuant to C.J. § 10-912, the fact that a defendant was not taken before a judicial officer after arrest within the time period specified by Rule 4-212 should not, by itself, exclude a confession. considered Rather, it may be a factor, among others, to be by the court in admissibility of a confession. deciding voluntariness and See id. Appellant was in the custody of the police for approximately nine and one-half hours before being presented to a judicial officer. It is routine for police to take suspects to a precinct or headquarters for questioning to prepare a charging document, between charging appellant s unnecessary court formally did delay not arrest in err appellant, and violation in its his of finding the amount presentment Rule that 4-212(f). Rule of was not The 4-212 time an trial was not violated. III Finally, we are asked to determine whether the trial court committed reversible error existed to arrest appellant. in finding that probable cause We have stated that probable cause is assessed by considering the totality of the circumstances in a given situation. See Howard v. State, 112 Md. App. 148, 160- - 63 61 (1996). More recently, we stated in In re Jason Allen D., 127 Md. App. 456, 491-92 (1999): Maryland courts have repeatedly stated that probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify conviction but more evidence than that which would arouse a mere suspicion. It has been defined as facts and circumstances sufficient to warrant a prudent [person] in believing that the [suspect] had committed or was committing an offense. (Citations omitted.) With respect to probable cause, the lower court concluded: Number one, I find that the police had probable cause to arrest the [appellant]. The statements by the victim when asked by the hospital personnel identifying the [appellant] as a person who he has had difficulty with, and then the statement that a witness saw the [appellant] driving away from the scene of the crime immediately after the crime had been committed in my opinion constitutes probable cause. In the instant case, detectives had evidence from the victim that he believed appellant was involved in the shooting and there was evidence of ongoing hostility between appellant and Bland. Moreover, an eyewitness, Keith Awkward, identified appellant as the person driving away from the crime scene. evidence alone is sufficient to warrant a prudent believe that appellant had committed the shooting. This person to - 64 JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY VACATED; CASE REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY BALTIMORE COUNTY. I agree that there was probable cause to arrest appellant, and that Maryland Rule 4-212 was not violated in this case. I dissent, however, from the holding that appellant s motion for suppression of his confession was decided on a factual predicate that is inadequate as a matter of law. It is true that there are cases in which the defendant s suppression hearing testimony must be rebutted by a specific law enforcement officer as no one else is qualified to do so. Gill v. State, 265 Md. 350, 353-54 (1972). In this case, however, the State produced anticipatory rebuttal evidence through the introduction into evidence of the WAIVER form that appellant initialed and signed. That form included the following statement: Without threats, promises, force or duress, I do hereby waive my rights as set forth and do knowingly and voluntarily agree to be questioned and/or make a statement. Detective Lau testified that appellant placed his initials next to the word Without, and signed his name next to the word statement. In my judgment, the combination of Detective Lau s testimony and the WAIVER form initialed and signed by appellant was more than sufficient to satisfy the Streams-Gill requirement that the State produce evidence in rebuttal of a defendant s coerced confession testimony. would therefore affirm the judgments of conviction. I - 66 -
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