Facon v. State

Decision Date13 June 2003
Docket NumberNo. 30,30
PartiesSteven Fritz FACON v. STATE of Maryland.
CourtMaryland Court of Appeals

Julia Doyle Bernhardt, Asst. Public Defender (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.

Celia Anderson Davis, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.



Steven Fritz Facon was convicted by a jury in the Circuit Court for Prince George's County of two counts of the common law offense of robbery with a dangerous weapon, and the statutory offenses of first degree assault and use of a handgun in the commission of a felony in violation of Maryland Code (1957, 1996 Repl.Vol., 2000 Supp.) Article 27, §§ 12A-1, 36B(d) (current versions at Maryland Code (2002) §§ 3-202, 4-204 of the Criminal Law Article).1 Facon contends on appeal that the trial court erred in denying his motion to suppress his confession. In his petition for writ of certiorari, Facon raises the following questions for our review:

1. Whether the twenty-four hour period following arrest, during which police are required to present an arrestee to a court commissioner, begins only when the arrestee enters the prosecuting jurisdiction, or includes that period of time following arrest in a neighboring jurisdiction.
2. Whether a delay in presentment solely for the purpose of conducting an all-night interrogation is an "unnecessary" delay.
3. Whether the circuit court erred in denying Mr. Facon's motion to suppress a confession, under the totality of the circumstances, where police held him incommunicado (denying his request to make a telephone call), interrogated him throughout the night in tag-team fashion, promised a recommendation to the State's Attorney, and delayed presentment until 36 hours after arrest in order to obtain a statement.
4. Whether the taking of property after the abandonment of a failed attempted robbery constitutes an armed robbery.

Facon v. State, 369 Md. 570, 801 A.2d 1031 (2002).

Maryland Rule 4-212(e) provides:

(e) Execution of warrant—Defendant not in custody. ... The defendant shall be taken before a judicial officer of the District Court without unnecessary delay and in no event later than 24 hours after arrest or, if the warrant so specifies, before a judicial officer of the circuit court without unnecessary delay and in no event later than the next session of court after the date of arrest. The court shall process the defendant pursuant to Rule 4-216 and may make provision for the appearance or waiver of counsel pursuant to Rule 4-215.

This case requires this Court to assess the effect of extraterritorial presentment delay upon the defendant's subsequent oral statement to the police.

We shall hold that the requirement of Maryland Rule 4-212(e) that a defendant shall be taken before a judicial officer of the District Court without unnecessary delay begins only when the arrestee enters the prosecuting jurisdiction, and for purposes of determining whether the rule has been violated, that period of time following arrest in a neighboring jurisdiction is not included in the time calculation. We shall also hold, however, that extraterritorial custody may be considered in the totality of the circumstances in assessing the voluntariness of a statement.

I. Background

A man, later identified as petitioner, entered a convenience store during the early morning hours of August 22, 1999, and approached the counter with a bag of chips. After asking the price of the chips, the man pulled up his shirt to reveal a gun and demanded that the store clerk "open the register." When the clerk, due to nervousness, was unable to comply, the man drew the gun and pointed it at both that clerk and an additional clerk who had emerged from the back of the store. The man demanded that the other clerk open the register, stating, according to the second clerk's testimony: "Open the register or I'll blow your heads off." Neither clerk was able to open the register. The man then put away the gun, grabbed a pack of cigarettes, and exited the store. The man did not pay for the cigarettes. One of the clerks testified that no attempt was made to stop the man because he "had a gun."

Based on the ensuing investigation, authorities in Prince George's County issued a warrant for petitioner's arrest. He was arrested on the evening of August 31, 1999, in the District of Columbia. Petitioner waived extradition to Prince George's County and arrived at Central Processing at about 10:00 p.m. on the evening of September 1, 1999. He had been awake since 5:30 that morning.

Two officers, Officer Craig and Officer Olds, met petitioner at Central Processing and brought him to an interview room in the Robbery Division. The interview room was roughly eight feet by ten or twelve feet, carpeted and without windows. Petitioner sat at a table, and was intermittently handcuffed to a ring on the wall. Except for breaks to have photos taken and to use the restroom, petitioner remained in the interview room from shortly after 10:00 p.m., September 1st, until his confession at 7:14 a.m., September 2nd.

Both officers testified that petitioner appeared alert, coherent, and in good physical condition throughout the night. Petitioner, 39 years old, testified at the suppression hearing that he had attended some college and that he understood what the officers were saying to him during the interrogation. During the course of the night, petitioner was offered and accepted coffee, soda, sandwiches, and cigarettes. When initially placed in the interview room, petitioner requested that the door be left ajar, which was done. Petitioner also requested to make a phone call, but this request was not granted. Petitioner was permitted to make a phone call at 9:00 a.m. the following morning, after he had made his confession. Petitioner testified that he also requested to speak to an attorney. Both Officer Craig and Officer Olds contradicted this testimony. At the outset of the interview, petitioner was not read his Miranda rights nor was any mention made initially of petitioner's rights to an attorney, to remain silent, or to prompt presentment before a judicial authority.

Officer Craig spoke first with petitioner. From 10:30 p.m. until 11:55 p.m., he and petitioner discussed petitioner's life and family. This conversation included petitioner's drug problems and prior arrests. At some point Officer Craig showed petitioner a waiver of rights form. Petitioner responded that he did not "want to sign anything right now." Officer Craig put the waiver form away and then asked petitioner, "do you want to discuss this at all right now?" According to the officer, petitioner responded, "I'll discuss it but I don't want to write anything, I don't want to make a statement." Rather than discuss the incident, however, the two then further discussed petitioner's drug problems, as well as a treatment program which petitioner had been involved with previously in prison.

From 11:44 p.m. until 12:22 a.m. petitioner was left alone in the interview room. Officer Craig returned, and talked to petitioner for roughly another two and a half hours, about petitioner's family, drug problems, and desire to enroll in a drug treatment program. Petitioner was left alone again from 2:55 a.m. until 3:20 a.m., when he was taken to use the restroom. Officer Craig then spent a final hour speaking to petitioner in the interview room before leaving to get Officer Olds at 4:25 a.m. Officer Craig testified that he wanted petitioner to "see a fresh face, talk to somebody else."

Officer Olds entered the interview room at 4:40 a.m. Like Officer Craig, Officer Olds discussed general matters about petitioner's life. Asked during trial whether he had made petitioner any promises, Officer Olds acknowledged that he offered to tell the State's Attorney about petitioner's desire to enter a drug treatment program. Officer Olds stated that he was "making no promises," but said he "would absolutely relay that [petitioner] has a bad narcotic habit to the state's attorney ... and that was about the best [the officer] could do."

From 5:55 a.m. until 6:35 a.m. there was a break in the conversation during which petitioner was photographed. Upon resuming at 6:35 a.m., Officer Olds stated they were "done" talking about petitioner's background, and began to review the evidence against petitioner. Officer Olds acknowledged that petitioner "was getting tired," but claimed that petitioner then began "to ask about what does the statement entail." The officer stated that, "a statement is a statement." Petitioner repeated what he had told Officer Craig; he didn't want to write anything down. Officer Olds told petitioner, "well you have to sign a waiver form or we don't get into the statement." It was 7:08 a.m. when petitioner agreed to execute the waiver of rights form; it was completed at 7:14 a.m. On cross-examination, Officer Olds acknowledged that it was "normal practice" to advise suspects of their rights prior to interviewing them.

Upon signing the waiver form, petitioner began to "weep." Officer Olds told petitioner that signing the form was not an admission of guilt, but simply indicated a willingness to cooperate. Once the waiver form was complete, petitioner confessed to robbing the convenience store, stating that he was under the influence of narcotics at the time. The confession was concluded at 7:45 a.m. At 9:00 a.m., petitioner was permitted to make a phone call, and at 10:30 a.m., petitioner was brought before a commissioner.

Prior to trial, petitioner moved to suppress the oral statement he gave to police while in custody. The motions court denied the motion to suppress. Specifically, the court believed the police officers rather than petitioner and concluded that petitioner did not ask for an attorney. The court also...

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