Harper v. State

Decision Date28 April 2005
Docket NumberNo. 2700,2700
Citation162 Md. App. 55,873 A.2d 395
PartiesAnthony Leon HARPER v. STATE of Maryland.
CourtCourt of Special Appeals of Maryland

Jason A. Abel, Washington, DC (Nancy S. Forster, Public Defender, on brief), for appellant.

Shannon E. Avery (J. Joseph Curran, Jr., Atty. Gen., on brief), for appellee.

Argued before MURPHY, C.J., DAVIS, and DEBORAH S. EYLER, JJ.


A jury in the Circuit Court for Prince George's County convicted Anthony Leon Harper, a/k/a Francis McClain, the appellant, of robbery, theft of property valued at less than $500, second-degree assault, and making a false statement to a police officer. The court merged the theft and assault convictions into the robbery conviction, and sentenced the appellant to 15 years in prison, with all but 12 years suspended. It imposed a six-month prison sentence, to be served consecutively to the robbery sentence, for making a false statement.

On appeal, the appellant presents two questions, which we have reworded:

I. Did the hearing court err by denying his motion to suppress his confession?
II. Did the trial court err by refusing to sever the false statement charge?

For the following reasons, we shall reverse the judgments and remand the case to the circuit court for further proceedings, based on our analysis of Issue I. We shall address Issue II because it is likely to arise on remand.


The convictions in this case stem from an attack that occurred just before 8:00 a.m. on May 13, 2003, outside Arrowhead Elementary School in Upper Marlboro. The victim, a teacher, was walking from the parking lot to the building at the start of the school day. A man accosted her and grabbed her purse, causing her to fall to the ground. When the victim would not release the purse, the man kicked her in the head. He then ran off with the purse.

A school employee who had seen a man near the school shortly before the attack gave a description of the man to police. Eleven days later, the employee saw the appellant sitting under a tree by the side of a street, two or three miles from the school. Believing the appellant was the man he had seen outside the school on the morning of the attack, the employee flagged down a police officer. The appellant was arrested and taken to the police station. There, identifying himself as Francis McClain, he made an inculpatory statement to Detective Charles Brew.

The police later learned that "Francis McClain" was an alias. The appellant was charged with robbery, theft of property valued at less than $500, and second-degree assault, arising out of the attack on the teacher; and making a false statement, arising out of his use of an alias when he was apprehended and questioned by the police.

Before trial, the appellant moved to suppress his inculpatory statement to Detective Brew. After an evidentiary hearing, the court denied the motion. At trial, the statement was admitted into evidence over objection.

I. Overview of Suppression Hearing Evidence

Detective Brew testified as follows at the suppression hearing. The appellant was arrested at about 5:00 p.m. on May 24, 2003. He was transported directly to the police station and placed in an interview room.

At 6:45 p.m., Detective Kelly Rogers advised him of his Miranda rights.1 The appellant identified himself to Detective Rogers as Francis McClain, and signed that name on an "Advice of Rights and Waiver Form." He placed checks and the initials "F. Mc." next to questions on the form, indicating that he understood his rights and wanted to make a statement, and that he had not been promised anything, offered any reward or benefit, or threatened in any way. In response to the question, "Are you under the influence of drugs or alcohol at this time," he checked "yes." Detective Rogers handwrote on the form that the appellant said he "had a beer 3 hrs. ago & smoked 2 `blunts,'" or marijuana cigarettes. The form was admitted into evidence.

In response to questions by Detective Rogers about the robbery, the appellant denied any involvement in the crime. Detective Rogers transcribed the appellant's oral responses into a written statement; the appellant did not sign the statement, however. Detective Rogers then left the appellant alone in the interview room. The transcribed exculpatory statement was introduced into evidence at the hearing.

At 8:45 p.m., Detective Brew entered the interview room. The appellant was asleep and had to be awakened. He was "[c]ooperative, but fading in and out because he was tired. He kept falling asleep." The appellant identified himself to Detective Brew as Francis McClain.

Detective Brew asked the appellant if he "had some sort of condition" that needed medical attention. The appellant answered that he would be all right. He told Detective Brew that he was hungry and thirsty. The detective gave him coffee and a candy bar.

The appellant appeared to Detective Brew "to be intoxicated or [to] be under the influence[,]" i.e., he seemed "[h]igh." His "eyes were glazed over" and Detective Brew could "smell the marijuana on him." While the appellant's "demeanor was consistent with being under the influence . . . there was not a strong odor of an alcoholic beverage to go with it either. He may have been doing some drinking with it, but it was not as if he was falling down drunk."

According to Detective Brew, although the appellant seemed to be under the influence of some substance or substances, he nevertheless appeared to understand everything that was said to him. He responded appropriately to questions and said he could read and write.

As we shall recount in detail below, Detective Brew and the appellant talked some about the appellant's drug problem and drug treatment.

Detective Brew told the appellant that witnesses already had identified him in connection with the robbery outside Arrowhead Elementary School; therefore, his real interest was in finding out what the appellant knew about a suspect in an entirely different case. The detective questioned the appellant about that suspect, but steered the conversation back to the robbery. He then told the appellant:

[V]ictims often feel that they have been stalked, that they have been singled out for being attacked for some action that they did. That, oftentimes, the victims would like to have some closure so that they can go on with their lives, that if he wanted to, he could apologize to the victim and I could relate it to the victim to help them have some closure.

The appellant then dictated the following statement:

At the time that this happened, it wasn't intentional. I didn't mean to hurt you in any way. I do apologize for whatever harm or injury I may have caused. I did not intentionally kick you. Due to the fact that I was under the influence at the time, I was not in the right mind and I needed money for my habit.

Detective Brew transcribed this apology statement by hand onto the first page of a form entitled "Prince George's County Police Department Statement of Victim/Witness/Suspect." The page contained a line for the appellant's signature, but he did not sign it.

On the second page of the form, Detective Brew handwrote two questions about the location and time of the attack. The appellant declined to answer the questions. Under the second question, the detective handwrote the appellant's statement, "I want to stop on this for now." Detective Brew then wrote, "I gave Det. Brew permission to write this for me." The appellant signed the name "Francis McClain" under that sentence and added, "Because I was in & out sleeping." Finally, Detective Brew wrote, "Have you been treated fairly, pressured to talk to this detective, mistreated in any way?" The appellant responded simply, "No."2 The transcribed inculpatory apology statement was admitted into evidence at the hearing.

The appellant testified at the suppression hearing. He said he did not remember much of what occurred at the police station because he was under the influence of marijuana, alcohol, and cocaine, and was "going in and out" of sleep. He recalled telling both detectives that his name was Francis McClain, however, and explained that he did so because he knew he "had a violation of probation." He also recalled signing the "Advice of Rights and Waiver Form" and making the exculpatory statement to Detective Rogers. He insisted, however, that he told Detective Rogers that he was under the influence of marijuana, alcohol, and cocaine, and did not tell her that he had consumed only one beer and two "blunts" several hours before his arrest.

Of his interaction with Detective Brew, the appellant remembered being given coffee and a candy bar, and, as we shall discuss, talking about his drug problem and drug treatment. He also remembered telling Detective Brew, in general terms, that he "would like to say I apologize for any inconvenience I may have caused anybody[,]" suggesting that he never specifically apologized to the victim. When shown the apology statement transcribed by Detective Brew, however, the appellant said, "I guess that's the statement I gave him. Like I told him, I could have wrote it myself. I have got a twelfth grade education and two and a half years of college." At the time of the hearing, the appellant was 37 years old.

Suppression Hearing Evidence About The Appellant's Drug Problem and Drug Treatment

As noted previously, evidence was adduced at the suppression hearing that Detective Brew and the appellant discussed the appellant's drug problem and the topic of drug treatment. The evidence first came in on cross-examination of Detective Brew:

Q.... Did you at any time tell [the appellant] that you could get him any type of drug treatment?
A. No. I indicated that there are programs through the Department of Correction[ ], but not that I could set him up in them. No.
* * *
Q. And you said you told him that there were programs at DOC? Is that what

To continue reading

Request your trial
31 cases
  • Lincoln v. State
    • United States
    • Court of Special Appeals of Maryland
    • September 14, 2005
    ...order to pass federal and Maryland constitutional muster, a confession must be voluntary, knowing, and intelligent." Harper v. State, 162 Md.App. 55, 72, 873 A.2d 395 (2005). Upon a proper challenge, the State bears the burden of showing, affirmatively, that the defendant's inculpatory stat......
  • Rodriguez v. State
    • United States
    • Court of Special Appeals of Maryland
    • March 24, 2010
    ...pre-trial motion, the burden is on the State to affirmatively show voluntariness by a preponderance of the evidence. Harper v. State, 162 Md.App. 55, 72, 873 A.2d 395 (2005). "`The trial court's determination regarding whether a confession was made voluntarily is a mixed question of law and......
  • Lee v. State
    • United States
    • Court of Special Appeals of Maryland
    • July 7, 2009
    ...the negative, then there is no need to address question number two.... Conyers, 345 Md. at 553, 693 A.2d 781. Accord Harper v. State, 162 Md.App. 55, 88, 873 A.2d 395 (2005). If, however, the answer to step one is yes, and the evidence is mutually admissible, "the trial judge has discretion......
  • Pulte v. Parex
    • United States
    • Court of Special Appeals of Maryland
    • May 24, 2007
    ...was not raised in or addressed by the trial court and therefore is not properly before this Court for review." Harper v. State, 162 Md.App. 55, 88, 873 A.2d 395 (2005) (by failing to provide citations to the record to establish that appellant pursued generic motion to sever criminal counts,......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT