Perez v. State

• Decision Date: 03 February 2004
• Docket Number: No. 1139,1139
• Citation: 841 A.2d 372,155 Md. App. 1
• Parties: Robert Angel PEREZ, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

841 A.2d 372

155 Md. App. 1

Robert Angel PEREZ, Jr. v. STATE of Maryland.

No. 1139, Sept. Term, 2001.

Court of Special Appeals of Maryland.

February 3, 2004.

George Harper, Upper Marlboro, for Appellant.

Ann Bosse, Rachel M. Kamins (Joseph J. Curran, Jr., Atty. Gen., on the brief), Baltimore, for Appellee.

MURPHY, C.J., DAVIS, HOLLANDER, SALMON, JAMES R. EYLER, SONNER, KENNEY, DEBORAH S. EYLER, ADKINS, KRAUSER, BARBERA, GREENE,¹ SHARER, RAYMOND G. THIEME, Jr., (Retired, Specially Assigned) and WILLIAM W. WENNER, (Retired, Specially Assigned), JJ. JAMES R. EYLER, Judge.

Robert Angel Perez, Jr., appellant (hereinafter Perez or appellant), was convicted by a jury in the Circuit Court for Prince George's County of two counts of felony murder and related charges. Appellant challenges his convictions on several grounds, including an assertion that his statements should have been suppressed because they were involuntary. One of the factors relevant to voluntariness was a delay in presentment to a district court commissioner. In light of recent Court of Appeals decisions dealing with a delay in presentment, we shall vacate appellant's convictions and remand to the circuit court for new pre-trial proceedings and a new trial. We shall also consider (1) the court's refusal to instruct the jury, pursuant to Md. Rule 4-212, that the police are obligated to take persons accused of a crime to a district court commissioner "without unnecessary delay and in no event later than 24 hours after arrest," and (2) the trial court's exclusion of testimony with respect to statements made by one of the two victims, shortly before she died.

FACTS AND LEGAL PROCEEDINGS

The Murders

On September 15, 1999, veterinarian Nirwan Tharpar and his wife, Shashi Tharpar, were brutally murdered at their animal hospital in Bladensburg, Maryland. An equipment technician found Dr. Tharpar lying behind the reception counter. When police arrived, they discovered that Dr. Tharpar was dead from gunshot wounds. His throat was also slit. They also discovered Mrs. Tharpar on the floor nearby. Though she had been hit in the back of her head and shot at close range over both eyes and in her neck, she was still alive. She described a single assailant—a tall black male. She died shortly after arriving at the hospital.

On August 7, 2000, Keith Mahar informed Prince George's County Detective Joseph Hoffman that Perez and Thomas Gordon had admitted to killing the Tharpars while they robbed the hospital. The next day, on August 8, Hoffman applied for and obtained an arrest warrant for Perez, alleging that probable cause arose from

information [that] was received by Prince George's County Police Detectives that a witness had knowledge of the persons responsible for these homicides. This witness was interviewed at which time he stated that [Perez] and co-defendant admitted that they had committed an armed robbery of an Animal Hospital in Bladensburg during which time both victims were killed.

Shortly after midnight on August 9, 2000, police officers arrested Perez and took him to the homicide unit of the Prince George's County Criminal Investigation Division ("CID"), where he arrived at 12:31 a.m.

Perez's Statements

The State's case against Perez included statements that he made to Prince George's County homicide detectives during the approximately 48 hours after he was arrested, but before he was presented to a district court commissioner. According to the evidence considered in a light most favorable to the State, here is what happened during that time.²

Perez was taken to an interrogation room in the homicide unit of CID.

At approximately 1:00 a.m. on August 9, Detective Hoffman and Detective Robert Turner entered the room. Hoffman reviewed Miranda³ rights with Perez. Perez indicated that he understood his rights and did not want an attorney, and he executed a waiver form.

For about forty minutes, Hoffman and Turner interviewed Perez "about his personal information, his associates, his friends, background stuff, school, family, jobs, and things of that nature." At some point, they talked "about a murder involving him and Thomas Gordon." Perez denied any involvement in the murder.

The officers left Perez alone in the room for about 45 minutes while they conferred with other detectives about the status of the investigation. At 2:25 a.m., Hoffman and Turner reentered the room and interviewed Perez for another 80 minutes. At some point, although they had not yet talked to Gordon, the detectives told Perez that Gordon said Perez was the shooter in the incident. Perez continued to deny any involvement. The detectives gave Perez water and left him alone between 3:45 and 4:00 a.m., while they conferred with other detectives about progress in the investigation, including "what was going on in the interview."

Turner resumed the interrogation from 4:40 until 5:50 a.m., with a bathroom break at Perez's request. Prior to this point in time, Perez admitted knowing Gordon but denied any involvement in the murders, denied owning or firing a gun, and denied that he had ever seen Gordon with a gun.

During this interview, however, Perez admitted that he had seen Gordon fire a gun twice. Perez also admitted that he was under investigation for some breaking and enterings. But, he continued to deny any involvement in the murders.

Perez was again left alone in the interrogation room. At 7:25 a.m., Detective Nelson Rhone, a member of the CID, found Perez "asleep leaning over a table[.]" He "had to shake him to wake him up." Perez was not handcuffed at this time, or at any time, while in the room.

After waking Perez, Rhone introduced himself and gave Perez "a little time to get himself together[.]" He then went over some biographical information.

At 9:15 a.m., Rhone and Perez completed another Miranda advisement and waiver. Perez was given some water and a break for the bathroom.

Rhone then questioned Perez about the murders. Perez admitted knowing Gordon, that "they had done several different B and E's in ... Bowie," and that he knew Gordon had a gun, but he claimed he had never seen Gordon with it.

"Later on," however, Perez described "one time" in which he and Gordon were "just driving" in Perez's black Mustang. Gordon "said he needed some money, and they talked about stopping somebody on the side of the road, robbing him." But they could not find anybody, and Gordon "pointed out a spot, and said ... let's go into that one and rob that place." Gordon told Perez to go inside. Perez "knew he was inside of a[n] animal hospital because the lobby had pictures of dogs and cats[.]" He stayed "two to three minutes," and saw only one "white lady," about 40 to 50 years old. Returning to the car, he "[t]old Thomas Gordon no police were near" and "[d]escribed ... what was inside." After parking the car at another location, "[b]oth went in." Perez "[s]aid he heard some shots and then ran out." "[H]e didn't stay... more than a brief second" before "jumping in his car." "All of a sudden Thomas Gordon comes running out[.]" They drove "straight to Bowie." When Rhone "asked him to reduce his oral statement into writing, ... that's what he did."

At 12:07 p.m., Rhone provided Perez with a form to write down this statement. Perez wrote six lines, and then Rhone recorded written questions and answers. The statement was completed about 2:00 p.m. At about 2:20, "[s]omeone brought some [fast] food[.]"

Another break ensued. Detective Hoffman, who had gone home to sleep, returned to the station and learned about Perez's statement. At 2:58 p.m., Hoffman reentered the interrogation room, again reviewed Miranda rights, and Perez executed a waiver. Perez then stated that he was present during the robbery and the shooting and that "he went inside to check the place out." "He heard [Gordon] shoot three times[,]" then "fled the scene[.]" Gordon "followed a short time later." Perez wrote a second statement, which was two pages, and then answered follow-up questions and signed written answers. He began the written statement at 3:31 p.m. and completed it at 5:01 p.m. Perez also "drew a map of how the animal hospital is laid out and the general area surrounding the animal hospital[,]" showing "[w]here they parked their car[.]"

At approximately 7:00 p.m., Detective Ismael Canales entered the room and advised Perez of his Miranda rights, in preparation for administering a voice stress analysis (lie detector) test that Hoffman asked him to perform. Perez signed a release form stating that he agreed to submit to the test. Canales left the room at 8:10 p.m.

Around midnight on August 10, Detective Hoffman returned to the interrogation room with another Miranda waiver and a second type of waiver form. Because Perez had been in custody for almost 24 hours, Hoffman had been advised by a senior investigator that it would be a good idea to ask Perez to waive what he described as his right to be presented to a district court commissioner within 24 hours after arrest. He brought a waiver statement that he had typed on his word processor.

When Hoffman came in, Perez had his head down on the table, apparently sleeping. At 12:08 a.m., Hoffman reviewed Miranda rights, and Perez executed a waiver. At 12:10, Hoffman advised Perez that since he had "been in the custody of the Prince George's County Police for over 23 hours[,]" he had "a right to be presented before a District Court Commissioner within 24 hours[.]" He then asked Perez a series of seven questions, to which Perez responded that he voluntarily agreed to remain at the station for additional questioning; he had not been promised anything, threatened, or coerced into remaining or signing the waiver; he had been advised of his constitutional rights before being questioned; he had not been denied the use of the bathroom or telephone while in custody; and he had not asked for an attorney to be present.

Hoffman reported that Perez "was very...