In re Darryl P.

• Citation: 211 Md.App. 112,63 A.3d 1142
• Decision Date: 25 March 2013
• Docket Number: Sept. Term, 2011.,No. 2942,2942
• Parties: In re DARRYL P.
• Court: Court of Special Appeals of Maryland

211 Md.App. 112

63 A.3d 1142

In re DARRYL P.

No. 2942, Sept. Term, 2011.

Court of Special Appeals of Maryland.

March 25, 2013.

George Harper, Upper Marlboro, MD, for Appellant.

Carrie J. Williams, (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: KEHOE, WATTS, CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), JJ.

MOYLAN, J.

This appeal raises a single contention. An analysis of that contention, however, implicates enough issues to justify a semester of law school. It is, in a phrase, Hydra-headed. The opinion turns out to be a study of differences. There is a potentially critical difference between an unlawful arrest and an unconstitutional arrest. There is a difference between a federal violation and a state violation. Even at the state level, there is a significant difference between a constitutional violation and a sub-constitutional violation. An analysis of these differences is necessary to identify the trigger for the Exclusionary Rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). An analysis of these differences may be necessary to mark the threshold for the “Fruit of the Poisonous Tree” Doctrine.

There is a vast difference between the influence on confession law of the Sixth Amendment right to counsel, and the Fifth Amendment privilege against compelled self-incrimination. There is a difference between the constitutional right to counsel under Massiah and the prophylactic right to counsel under Miranda. There is a difference between the respective triggers of formal accusation and of custodial interrogation, just as there is a difference between the respective coverages that are triggered. There is a difference in how separate rights to counsel are invoked. There is a difference in how separate rights to counsel are waived.

There may (or may not) be a difference between an involuntary confession under the Fifth Amendment privilege according to Bram v. United States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed. 568 (1897), and an involuntary confession under the Maryland common law according to Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979). There may, on the other hand, be a venerable but long-neglected identity between the two. Hof v. State, 97 Md.App. 242, 629 A.2d 1251 (1993), aff'd on other grounds,337 Md. 581, 655 A.2d 370 (1995).

A sure sense of these differences is necessary in a case, such as this, where separate constitutional protections cover the same territory. Litigants too often confront us with a constitutional kaleidoscope, and constitutional overlap can quickly degenerate into constitutional chaos. It does not help to have a Sixth Amendment factor intruding into a Fifth Amendment analysis. It does not help to have a Fifth Amendment factor intruding into a Sixth Amendment analysis. It does not help to have the whole case put in a Fourth Amendment framework of analysis when the Fourth Amendmentis not even involved. It is important to keep our analyses in watertight compartments. As the appellant looses his blunderbuss blast at the non-suppression of his confession, however, his grievances are far from being neatly compartmentalized. To mix metaphors, we face the daunting task of trying to unscramble the eggs.

The Present Case

In the Circuit Court for St. Mary's County, sitting as a juvenile court, the appellant, Darryl P., was, upon an agreed statement of facts, found to be a delinquent for having been involved in an attempted murder. The appellant, then aged 17, was charged with having been involved in the January 6, 2011 shooting of Terrell Swales during an attempted robbery.

The convoluted procedural background throws little light on the single contention raised by the appellant, to wit, that at a pretrial suppression hearing, the judge erroneously ruled that an inculpatory statement given by him to the police was admissible in evidence. The appellant was originally charged, as an adult, with first and second degree assault and with the use of a handgun. The appellant turned himself in on a warrant that had been issued by the District Court of Maryland for St. Mary's County. On February 23, 2011, the appellant was released on $10,000 bail. When interviewed by a deputy sheriff on that occasion, the appellant invoked his right to counsel and all questioning ceased. While his case was still pending in the District Court, the appellant retained counsel and counsel entered his appearance. The appellant was free on bail from February 23, 2011 until he was rearrested on May 6, 2011.

The rearrest was on the basis of an indictment returned by the Grand Jury for St. Mary's County on April 6, 2011, charging the original crimes charged in the District Court warrant as well as several additional charges based on the same criminal conduct. The arrest warrant itself was issued by the circuit court on April 15, 2011. On October 11, 2011, jurisdiction over the appellant's case was waived from the criminal court to the juvenile court.

After jurisdiction had been waived to the juvenile court, the appellant filed, on October 19, 2011, a motion to suppress an inculpatory oral statement he had made to the police following his rearrest on May 6. A suppression hearing was conducted on November 17. On November 29, the suppression hearing judge filed a 14–page Opinion and Order of Court in which he denied the motion to suppress.

Except to explain how the appellant came to be the appellant, this procedural history is largely immaterial. The appellant challenges the admissibility of the inculpatory remarks he made to the police. Whether used to find an adult to be guilty of crime or a juvenile to be delinquent, the confession will be assessed by the same standards.

The Five Subcontentions

The appellant raises a single contention, but in arguing that contention he lays down a broad enfilade of subcontentions. In appellant's brief there are even bald allegations invoking no less than three separate articles of the Maryland Declaration of Rights. Somewhat more modestly, five subcontentions were actually raised and argued at the suppression hearing and are, therefore, proper grist for the appellate mill. We have reordered their sequence to make for a more fluid analysis:

1. The questioning of the appellant on the early morning of May 6, 2011 followed his “unlawful arrest” and is, therefore, suppressible under the “fruit of the poisonous tree” doctrine;

2. The statement was taken in violation of his prophylactic right to counsel as protected by Edwards v. Arizona;

3. The statement was taken in violation of the appellant's Fifth Amendment privilege against compelled self-incrimination;

4. The statement was involuntary according to the Maryland common law; and

5. The statement was taken in violation of the appellant's Sixth Amendment right to the assistance of counsel.

Arrest, Rearrest, and Bail

The appellant's thesis is that at a time when he was already free on bail and had a right to be free of any further custodial restraint, he was erroneously rearrested and that the confession in issue followed as a proximate result of that improper rearrest. It follows, the appellant argues, that the confession should have been suppressed as “the fruit of the poisoned tree.” On this subcontention, the appellant may well be right that the court system stumbled in failing to afford him all the liberty that he was entitled to as a result of his bail status. Whether the judicial machinery performed well or ill, however, the possible bureaucratic misstep is, as a reason for suppressing evidence of crime, a tempest in a teapot. Even be it in a teapot, however, the tempest is worthy of assessment.

To make such an assessment, however, it would be helpful if we could thoroughly understand the early history of the appellant's prosecution. That history, however, is frustratingly opaque. We now know, as a result of reviewing the agreed statement of facts that was read to the juvenile court on December 28, 2011, that the underlying crime in this case occurred on January 6, 2011, when the appellant, in the course of an attempted robbery, shot and wounded Terrell Swales. That statement of facts was not presented at the suppression hearing, however, and the suppression hearing court was not informed of what the underlying crime consisted. If we should ultimately be called upon to decide, on the basis of this subcontention, whether the court was right or wrong in declining to suppress the confession, we would have to factor out our knowledge about the circumstances of the underlying crime because our review of the suppression hearing would be limited to what was actually presented to the suppression hearing. On the other hand, there was a file folder in front of the suppression hearing judge, but we are not told what was in that file folder.

At some subsequent time, we infer from allegations in the appellant's brief and not from any evidence presented at the suppression hearing, the police obtained an arrest warrant for the appellant from the District Court, charging him with 1) first-degree assault, 2) second-degree assault, and 3) the use of a handgun in a crime of violence.¹ The record in this case does not contain that arrest warrant and it was not presented at the suppression hearing.

According to counsel, the appellant then “turned himself in” on those charges. How the appellant learned about those charges against him we don't know. Did the appellant, as a seventeen-year-old, turn himself in of his own accord or did his parents bring him in or did a lawyer or friend bring him in? We don't know. Did the appellant turn himself in to the police, or to the State's Attorney's Office, or to the District Court? Again, we don't know. We are told by counsel that, apparently on February 23, 2011, “[a]ppellant posted a $10,000 bail and was released.” ²

Had the appellant been arrested for a short time after turning himself in or did he have an immediate bail hearing? ³...