Hof v. State

• Decision Date: 01 September 1992
• Docket Number: No. 952,952
• Citation: 629 A.2d 1251,97 Md.App. 242
• Parties: Robert Alan HOF v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 242

97 Md.App. 242

629 A.2d 1251

Robert Alan HOF v. STATE of Maryland.

No. 952, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Sept. 1, 1993.

Certiorari Granted Dec. 10, 1993.

James Wyda, Asst. Public Defender (Stephen E. Harris, Public Defender on the brief), Baltimore, for appellant.

David P. Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore, and Sandra A. O'Connor, State's Atty. for Baltimore County, Towson, on the brief), for appellee.

Submitted before MOYLAN, CATHELL and MOTZ, JJ.

MOYLAN, Judge.

This appeal poses a most basic question: Does there even exist such a thing as a law of confessions? Or is it the case that there are, rather, many laws of confessions? Be the law of confessions single or multiple, the burden is, in any event, indisputably on the State to satisfy the trial judge in the first instance that a challenged confession is admissible. It is a legitimate and increasingly popular defense strategy to exploit that allocation of the burden by constructing as arduous an obstacle course as possible for the State to negotiate.

In pursuit of that strategy, the resourceful defense attorney may well challenge a proffered confession, giving as grounds therefor: 1) that it did not satisfy the common law requirement of voluntariness; 2) that it did not satisfy the general due process requirement of the Fourteenth Amendment; 3) that it did not satisfy the parallel due process requirement of Article 23 of the Maryland Declaration of Rights; 4) that it did not respect the defendant's Fifth Amendment's privilege against compelled self-incrimination; 5) that it did not respect the defendant's parallel privilege under Article 22 of the Maryland Declaration of Rights; 6) that it did not abide by the constitutionally imposed implementing rules of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and 7) that it did not guarantee the assistance of counsel secured by the Sixth Amendment.

Having designed such a multi-layered defense in depth, the defense attorney may then sit back and watch. Somewhere in the course of its Herculean labors, the State may fail to clear a barrier. A more likely scenario is that somewhere along the way, the State or the judge may neglect even to notice the presence of a hurdle. The strategy is legitimate. The mischief, of course, is that some of the proposed hurdles may turn out to be redundant. The trial may trip over an obstacle that should never have been in its path.

Just as it is the adversarial prerogative to lay a procedural mine field, it is the appellate responsibility to clear the ground of gratuitous hazards. The law should vigilantly guard against needless proliferation of ultimately indistinguishable rules, tests, doctrines, and burdens. The law need not suffer two or three explanations for two or three seemingly different phenomena to remain in the field if it can construct a single explanation for what are but specific instances of the same general phenomenon. For those who mold the law, an ongoing mission should be to eliminate clutter whenever possible by reducing to the lowest common denominator--by searching constantly for a unified field theory. This is the challenge set for us by the appellant's first contention in the present case.

Lest the hypothetical obstacle course suggested above be dismissed as unrealistic, we draw attention to the omnibus gauntlet tossed down before the trial judge by the appellant here:

"Well, I am alleging all of the grounds, your Honor. The violation of the Maryland Confession Law, Article 27, Declaration of Rights, 5th and 14th Amendments and Miranda."

The appellant, Robert Alan Hof, was convicted by a Baltimore County jury, presided over by Judge Leonard S. Jacobson, of armed robbery and a related handgun offense. He raises, inter alia, the contention that Judge Jacobson erroneously failed to instruct the jury adequately on the subject of the common law voluntariness of a confession. Stating the Problem

At a pretrial suppression hearing, Judge Jacobson had ruled that the confession was admissible. At trial, the jury was informed of the circumstances surrounding the taking of the confession. At the close of the case, Judge Jacobson instructed the jury as to what it must find to determine for itself the acceptability of the confession. The first part of that instruction covered the giving of the familiar Miranda warnings and the waiver thereof:

"You've also heard evidence that the defendant confessed that he committed the crime with which he is charged or the crimes with which he is charged. You are instructed that you must be satisfied beyond a reasonable doubt that the defendant was clearly advised of each of his rights before making a confession while in custody and while undergoing interrogation; otherwise, you are to disregard the alleged confession.

The defendant must have been specifically advised that he has a right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney during any questioning and that, if he cannot afford an attorney, one will be appointed for him prior to any questioning, if he so desires.

You must be satisfied beyond a reasonable doubt that the defendant understood his rights and knowingly and willingly waived his rights prior to making a confession."

Judge Jacobson then turned to the closely intertwined concepts of 1) the confession's being voluntary 2) by virtue of the Miranda waiver's being voluntary. He concluded with the admonition that the State's proof of the voluntariness of the confession had to satisfy the jury beyond a reasonable doubt:

"The fact that warnings were given does not automatically render a subsequent confession valid. The defendant must have knowingly and intelligently waived his rights. If such a waiver was not made, a confession made during custodial investigation is not a voluntary one. If you have a reasonable doubt as to whether the defendant was properly advised of his rights and waived or gave up those rights, then you must not consider the confession as part of the evidence in arriving at your verdict.

And the burden is on the State to prove beyond a reasonable doubt that the alleged confession was freely and voluntarily made." (emphasis supplied).

The appellant was not satisfied. He requested a further instruction cataloging an assortment of factors that might bear on voluntariness:

"And tell them what they have to consider--the length of time the defendant was questioned, physical and mental condition, period of time that elapsed between being advised, other persons present at the time of making the alleged confessions, all the other circumstances surrounding, including the age, background, education, experience, intelligence. And then say that the burden is on the State to prove beyond a reasonable doubt that the confession was freely and voluntarily made and without any threats, implied or direct, and that it's not voluntary if there's any inducement or promises of leniency, and unless this is done, that it must be disregarded."

The thrust of the appellant's argument is that for a confession to be admissible, it must satisfy not only the dictates of Miranda v. Arizona, but also the demands of common law voluntariness. Thus far, of course, the appellant is right. The more pertinent question, however, is whether in the context of custodial interrogation, the satisfaction of Miranda does not, ipso facto, satisfy the requirements, of common law voluntariness in the process. The procedural obligation to touch all the bases does not include an obligation to touch third base twice.

Reducing the Field

To answer that question, it is necessary to make several comparisons. As we prepare to make those comparisons, it will be helpful if we reduce some of the clutter. A challenge to a confession in Maryland today could theoretically be made on any of at least seven ostensibly different grounds. It could be alleged that there was a failure to satisfy:

1. Common law voluntariness (applicable in Maryland)

2. Due process under the federal Fourteenth Amendment

3. Due process under Article 23, Maryland Declaration of Rights

4. The Fifth Amendment privilege not to be compelled to be a witness against oneself

5. The privilege against compelled self-incrimination under Article 22, Maryland Declaration of Rights

6. The judicially devised implementing rules of Miranda v. Arizona

7. The right to counsel under the Sixth Amendment ¹

To what extent are those seven criteria no more than different ways of testing the same thing, on the one hand, or ways of testing quite different things, on the other hand?

At the outset, we can eliminate from any further comparison the challenge to a confession based upon the Sixth Amendment's right to the assistance of counsel. It is unique. It possesses virtually no overlap with any of the other grounds for challenging a confession. McNeil v. Wisconsin, 501 U.S. ----, 111 S.Ct. 2204, 115 L.Ed.2d 158 (1991). It has its own triggering mechanism (the fact of accusation). Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986); Illinois v. Perkins, 496 U.S. 292, 110 S.Ct. 2394, 110 L.Ed.2d 243 (1990). It is indifferent to whether the suspect being questioned is or is not in custody. Maine v. Moulton, 474 U.S. 159, 106 S.Ct. 477, 88 L.Ed.2d 481 (1985); United States v. Henry, 447 U.S. 264, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980). It may be violated by the most voluntary of confessions under the most noncompelling of circumstances. Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964). It is, truly, sui generis.

We may also eliminate from any further comparison, for a very different reason, challenges to a confession based on either Article 23 or Article 22 of the Maryland Declaration of Rights. As a...