Hof v. State, 117

CourtCourt of Appeals of Maryland
Citation337 Md. 581,655 A.2d 370
Docket NumberNo. 117,117
PartiesRobert Alan HOF v. STATE of Maryland. ,
Decision Date01 September 1993

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

David P. Kennedy, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent.


BELL, Judge.

Robert Alan Hof, the petitioner, was tried by a jury in the Circuit Court for Baltimore County for robbery, robbery with a dangerous and deadly weapon, assault, theft, and the unlawful use of a handgun in the commission of a felony. At the close of the evidence, the trial judge instructed the jury to consider the petitioner's confession only if it found beyond a reasonable doubt that the petitioner had been given and knowingly and willingly waived, his Miranda 1 warnings. He also told the jury that the burden was on the State to prove, beyond a reasonable doubt, that the petitioner confessed freely and voluntarily. The petitioner's request that the jury be given an additional voluntariness instruction listing the several factors it had to consider in determining whether the petitioner's confession was voluntary was denied. Having been convicted of robbery with a dangerous and deadly weapon and the handgun violation 2 and sentenced to twenty-five years imprisonment without parole, the petitioner noted an appeal challenging that ruling. The Court of Special Appeals affirmed. Hof v. State, 97 Md.App. 242, 629 A.2d 1251 (1993). We granted the petitioner's petition for writ of certiorari. The petitioner asks us to consider two questions:

1. Did the trial court's jury instruction regarding the State's obligation to comply with Miranda obviate the need for a nonconstitutional voluntariness instruction regarding the petitioner's statement?

2. Did the Court of Special Appeals err in holding that the petitioner failed to present sufficient evidence to generate an instruction regarding the voluntariness of his confession?


The State's evidence against the petitioner included a confession he made during custodial interrogation. The petitioner moved, prior to trial, to suppress that confession, contending that it was involuntary under Maryland confession law, Article 22 of the Maryland Declaration of Rights, 3 and the 5th and 14th Amendments to the United States Constitution. He also argued that it was given in violation of Miranda. As to the latter, he pointed out that he did not initial at least one right, indicating, he argued, that it was not advised or understood. The petitioner also contended that Miranda was not complied with because, in advising the petitioner of his right to counsel, the detective indicated that the right applied prior to questioning and did not explain that it also applied during questioning.

Testifying in support of the motion, the petitioner said that when he was arrested on December 18, 1990, he had a $300 a day cocaine habit. Further, he stated that, on that day, he had intravenously injected three grams of cocaine, starting "early in the morning, going through the passage of the day" and that, at the time of his interrogation, at approximately 6:00 p.m., he was sick from cocaine withdrawal symptoms. He stated that he was nauseous and that "I was sick. Ached all over". Consequently, he asserted he was not thinking clearly at the time he gave his statement; he was "severely depressed from not having any drugs." He further testified that when he informed Detective Gus Vaselaros, one of the interrogating officers, 4 of this, the detective told him that he would be taken to St. Joseph's Hospital as soon as the interrogation was completed. 5 The petitioner pointed out that he was hospitalized shortly after his statement was taken. He was seen by both a psychiatrist and doctor and given "a couple of pills."

Detective Vaselaros' testimony differed considerably from the petitioner's. He testified that, prior to any interrogation, he advised the petitioner of his Miranda rights, using the Baltimore County Police Department's standard rights and waiver form, 6 which the petitioner initialed and signed. Detective Vaselaros stated that the petitioner, who was shackled in leg irons throughout the interrogation, which began at approximately 7:00 p.m. in the police captain's office, orally confessed to the robbery of the liquor store, but refused to give a written statement. The detective stated that the petitioner was taken before the District Court Commissioner between 9:00-9:30 p.m. for a bail hearing.

On cross-examination, Detective Vaselaros confirmed that he took custody of the petitioner at approximately 4:30 p.m., some 2 1/2 hours before the interrogation. He conceded that, although it is standard procedure to have a defendant initial each of the Miranda rights, the petitioner did not initial all of them; the petitioner did not initial the one indicating that he had "an absolute right to remain silent" and could not "be compelled to answer any questions and need not assist [his] interrogators in this or any investigation." Detective Vaselaros also conceded that the petitioner looked depressed during the questioning and had informed him of his extensive drug habit, including the fact that the petitioner had been rejected by several drug rehabilitation programs. Moreover, he stated that he believed that the petitioner used several kinds of drugs including "coke, heroin" and "Dilaudid, Percocet [and] Percodan." Detective Vaselaros acknowledged that he was aware, although unsure of the exact time, that the petitioner was taken to a hospital following the interrogation. Detective Vaselaros also admitted informing the petitioner that the police had obtained evidence against him in connection with the Ridgeway liquor store robbery.

The motions court found that the petitioner freely and voluntarily confessed.


Detective Vaselaros was one of the three State's witnesses who testified at trial. His testimony was similar to that given at the pre-trial suppression hearing. He said that: he took custody of the petitioner at about 4:00 p.m., but the interrogation did not begin until approximately 7:00 p.m.; the petitioner was advised of his Miranda rights from a standard waiver form, not all of the provisions of which did the petitioner initial; the petitioner was shackled in leg irons throughout the interrogation; the petitioner informed Detective Vaselaros of his extensive drug habit and that he had been rejected by several drug rehabilitation programs; Detective Vaselaros knew that the petitioner used all types of drugs including "cocaine and all the hard street stuff as far as, and also prescription drugs, Dilaudid, Percocet, Percodan, whatever"; the petitioner confessed to the robbery of the Ridgeway Liquor store, but refused to give a written statement; and the petitioner was taken to Saint Joseph's Hospital after the questioning. The petitioner did not testify at trial.

At the close of the evidence, the trial court instructed the jury. Because those instructions did not address the confession, the petitioner requested that they be supplemented by reading the confession instruction that he had previously submitted. 7 Although expressing concern that it was not an accurate statement of law and "a bit redundant," the State agreed that the Court's instruction "should include basically what the defense is requesting." The court agreed to "give the MPJI instruction" regarding the jury's role in determining the voluntariness of the petitioner's confession. 8 Instead, however, the court gave the following instruction:

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.

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.

Gentlemen, that concludes my instructions.

Defense counsel responded with a request for further instructions:

I thank the Court for giving the instruction so far. I think the Court has to also advise the remaining aspect of the second prong; that they must determine beyond a reasonable doubt that the confession is voluntary, which under all the circumstances, is the product of a free and unconstrained will which has not been overborne or compelled.

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...

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