Souffie v. State

• Decision Date: 11 January 1982
• Docket Number: No. 577,577
• Citation: 50 Md.App. 547,439 A.2d 1127
• Parties: Diane Marie SOUFFIE v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 547

50 Md.App. 547

439 A.2d 1127

Diane Marie SOUFFIE v. STATE of Maryland.

No. 577.

Court of Special Appeals of Maryland.

Jan. 11, 1982.

Edward F. Houff, Frederick, with whom was Alfred L. Scanlan, Jr., Assigned Public Defender on the brief, for appellant.

Ann E. Singleton, Asst. Atty. Gen., with whom were Stephen H. Sachs, Atty. Gen. of Maryland, Paul S. Podolak, State's Atty. for Cecil County and John L. Scarborough, Asst. State's Atty., for Cecil County on the brief, for appellee.

Argued before LOWE, COUCH and BISHOP, JJ.

LOWE, Judge.

Diane Marie Souffie was convicted by a jury in the Circuit Court for Caroline County of second degree murder, robbery, robbery with a deadly weapon, use of a handgun in the commission of a felony, and battery. She was found not guilty of felony murder, assault and transporting a handgun. Because the jury could not agree on first degree murder, the trial judge declared a "mistrial" as to that count. The victim was a young man who (while driving a van) picked up appellant and her friend Pamela Brooks, with whom appellant was hitchhiking. The three became better acquainted during their rambling wanderlust when appellant and the victim had sexual intercourse in the back of the van; but their relationship deteriorated after appellant and her friend each shot the victim in the head with a derringer carried by Brooks. Appellant takes issue with the State's contention that the intercourse was consensual and the murder motivated by robbery, arguing that the content of one of her statements to the police generated a self-defense issue because she indicated that she had shot the victim after he had raped her.

Predominant and preliminary among the eleven issues raised by appellant is the admissibility of the pretrial statements which she made to the police in the early morning hours following her arrest. She contends that there was no probable cause for her arrest, after which the statements were elicited (see Ryon v. State, 29 Md.App. 62, 71-72, 349 A.2d 393 (1975), aff'd, 278 Md. 302, 363 A.2d 243 (1976), and that the statements were taken in violation of her Miranda ¹ rights as explicated in Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) and in Bryant v. State, 49 Md.App. 272, 431 A.2d 714 (1981).

Because our independent review of the record satisfies us that the police had abundant, if not overwhelming, probable cause to obtain the warrant for the arrest of appellant, we need not address the criteria of admissibility set forth in Ryon, supra, for a statement given while in custody as the result of an improper arrest. During our extensive review, however, we were assured that even those criteria would have been satisfied had the State lacked probable cause to arrest. The quantity of information contained in the record is so extensive that to set it out in what will be an overly long opinion would distract from the impact of the narrower legal issues raised by appellant and serve no purpose sufficient to offset that distraction.

The second half of the bifurcated confession-suppression issue is one recently addressed by the Supreme Court, the Court of Appeals and ourselves. Seemingly, such architects would provide a carefully constructed legal foundation; but regrettably, we have left cracks in the floor which must be filled or fallen through on a case by case basis. Vines v. State, 285 Md. 369, 376, 402 A.2d 900 (1979). Perhaps because the appellate courts (including the Supreme Court) have been so involved with the judicial dissection and legal definition of a single Miranda sentence, we sometimes overlook the fact that before the legal formulae can be applied, a factual determination must be provided against which the formulae may be used as a measure. Because even a single witness's testimony may be subject to different interpretations, appellate judges must defer to their trial level brethren whose determinations arise from personal observations, voice inflections, nuances and physical reactions to examination and cross-examination.

Thus, when determining on appeal whether the facts constitute a custodial interrogation, we must accept the trial judge's conclusions unless the record indicates a clear interpretive error. Md. Rule 1086. An example of such clear error was manifest in Bryant v. State, supra, although we addressed the error there as indicative of a legal misunderstanding by the trial judge, rather than a clearly erroneous factual determination. Despite a "markedly" different version of what occurred as related by appellants in that case, id. 49 Md.App. at 281, 431 A.2d 714, we looked only at the officer's testimony (most favorable to the State) and still found his conduct-however one interpreted his testimony-to have been an interrogative "ploy". Id. at 283, 431 A.2d 714:

"When Bryant exercised his right to have counsel present, all interrogation should have ceased. Instead, it was continued by the officer's using the ploy of keeping him in the same room with (codefendant) Ham, while Ham wrote a statement and also of taking Bryant into a room where the other accused was making a statement. Such action on the part of the police was obviously calculated to underpin the detective's statement to Bryant that the accomplices had confessed.

Patently, the detective was endeavoring to cause Bryant to retreat from the Miranda fortress and to surrender his will to the officer because the battle was lost anyhow. It is precisely that type of 'persuasion' duress, coercion, or intimidation that is forbidden by Miranda and Edwards (v. Arizona (--- U.S. ----, 101 S.Ct. 1880), 68 L.Ed.2d 378 (1981) )."

-the first statement-

Appellant in this case attempts to draw a factual analogy with Bryant, hoping to obtain a similar result. Between her arrest and her first statement, however, she was admittedly provided repeated Miranda warnings. She did not invoke a right to counsel nor did she indicate a desire to remain silent. On the contrary, according to the testimony of Trooper Samuel Pierce, which appellant summarizes in her brief, she

"indicated she would like to tell what happened, however, she had been talking with Mr. Ball's attorney, Gene Herman, and he advised her that she didn't have to talk if she didn't want to." ²

Appellant was arrested at the residence of Robert Ball, whose attorney she telephoned before she was taken to the police station. The attorney, Gene Herman, offered the above gratuitous advice even before the police did so in a more formal manner. The attorney subsequently called the police station and explained to Trooper Pierce that he would not be able to represent appellant because he was a friend of the victim's family.

Because of appellant's ambivalence between her desire to speak and Herman's advice, the officer informed her of Herman's call and explained that "she would have to take the advice he gave her as just that, advice, and that the final decision whether or not to speak with us still rested with her." ³

Trooper Pierce further stated that:

"After that, I just left her with that thought and continued on explaining, in detail the charges and the status of the investigation we had developed, who the information had come from, the implications that were laid out in his statements from Brooks, Randall Brooks and Bill Campbell."

Those implications must have been disconcerting. Appellant became nauseous, hurried to the bathroom and returned fifteen minutes later, at which time she "blurted" (according to the State) that "she had been with the Waddell boy, or with the boy, and that he had raped her and that she had shot him."

Appellant's reliance upon Bryant (which relied upon Edwards v. Arizona, supra) is totally misplaced. Both Bryant and Edwards relate to who instituted a reinterrogation after the fifth amendment right identified in Miranda (to have counsel present at any custodial interrogation) had been invoked. Rhode Island v. Innis, supra, also mentioned in Bryant, is somewhat more on target, but that, too, misses the mark. Innis dealt with what Miranda meant by "interrogation", or its "functional equivalent" which may consist of any "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Id., 446 U.S. at 301, 100 S.Ct. at 1689. See generally Leuschner v. State, 49 Md.App. 490, 433 A.2d 1195 (1981).

But it does not appear at that juncture of this case, that it was yet necessary to decide who had initiated a phase of an interrogation (Edwards) or even if there was an interrogation (Innis). Both of these refinements presuppose that an individual has indicated in some manner, at some time prior to or during questioning, that she wished to remain silent, at least until she was provided counsel. It is only then that an interrogation must cease. Miranda, supra, 384 U.S. at 473-474, 86 S.Ct. at 1627-1628. At no time prior to her first statement did appellant, in any manner, indicate her desire to remain silent. At best she equivocated, explaining her ambivalence because of the advice of her affectionado's attorney. The questioning officer appears to have taken her remark not as a request that the interrogation cease, but merely as a passing comment. See e.g., Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1424, 22 L.Ed.2d 684 (1969). The information conveyed regarding his representative status and the admonition that appellant must herself decide whether to speak did not convert the subsequent remarks into a "product of compulsion, subtle or otherwise", such as to overcome her "free choice", in producing a statement even if "the privilege (to remain silent) ha(d) been once invoked." Miranda, supra, 384 U.S. at 473-474, 86 S.Ct. at 1628; and see Frazier, supra, 394 U.S. at 739, 89 S.Ct. at 1424. The officer testified that she had not only indicated a...