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Nathaniel Damian Marr v. State of Maryland, No. 2587, September Term, 1999

______________________________________________________________ CRIMINAL LAW -- A defendant's Miranda rights can only be invoked by the defendant in the context of custodial interrogation.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2587 September Term, 1999

NATHANIEL DAMIAN MARR

v.

STATE OF MARYLAND

Moylan, Eyler, Johnson, Stephen P. (Specially assigned), JJ.

Opinion by Eyler, J.

Filed: September 11, 2000

Nathaniel Damian Marr, appellant, was convicted by a jury sitting in the Circuit Court for Prince George's County of attempted second degree murder and use of a handgun. He was

sentenced to consecutive terms of imprisonment of thirty and twenty years. Questions Presented 1. Did the trial court err in denying the motion to suppress Appellant's statements to the police? Did the trial court err in denying Appellant's motion for a mistrial and in refusing to reopen the suppression hearing? Did the trial court err in refusing to give requested instructions? A. Did the trial court err in refusing to instruct the jury that a defendant does not forfeit his right to self-defense by arming himself in advance if he does not seek the encounter and has reason to fear an unlawful attack on his life? B. Did the trial court err in refusing to instruct the jury on [its] duty to assess reasonableness from the defendant's perspective at the time of the incident?

2.

3.

Facts Motion to Suppress The facts, as developed at the hearing on appellant's motion to suppress, are in substance but not verbatim taken from appellant's brief. On December 4, 1998, Prince George's -1-

County detectives obtained an arrest warrant for appellant in connection with the attempted murder of Kevin Jackson on that same date. Police detectives "held" the warrant, which meant One of the

the warrant was not entered into the computer.

reasons given by the detectives for holding the warrant was to "prevent the attorney from coming in and assisting the defendant." On December 14, 1998, Detective Norman Miller received a telephone call from Steve Kupferberg, Esquire, who had represented appellant over a number of years in a number of cases, and who had been retained in December 1998, to represent appellant in connection with the investigation of crimes in the Seat Pleasant area. In that conversation, Mr.

Kupferberg told Detective Miller that he represented appellant, inquired as to the existence of an arrest warrant, and indicated that if there were an outstanding warrant, appellant would turn himself in to police. Mr. Kupferberg

made it clear to Detective Miller that appellant did not want to talk to police officers without Mr. Kupferberg being present. Detective Miller, although he knew that an arrest

warrant was outstanding, did not inform Mr. Kupferberg of the warrant. Later that same day, Mr. Kupferberg faxed Detective

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Miller a letter confirming the telephone conversation, wherein Mr. Kupferberg confirmed that he represented the appellant and repeated his statement that, if a warrant were issued, appellant would turn himself in to police. Mr. Kupferberg

also repeated appellant's position that appellant would make no statement to police officers without his attorney being present, and Mr. Kupferberg asked Detective Miller not to question appellant outside of his presence. Mr.

Kupferberg testified that he had discussed the letter with appellant and advised appellant that if he were arrested without Mr. Kupferberg being present, he should tell the police that he did not want to make a statement. On December 28, Mr. Kupferberg met with Ranganoff Manthrapagada, a member of the U.S. Attorney's Office and a former Assistant State's Attorney. Mr. Kupferberg told Mr.

Manthrapagada that he wanted appellant to turn himself in if there was an outstanding warrant and asked him to find out if there was one. would not do so. On December 30, at approximately 8:30 a.m., appellant was arrested pursuant to the warrant issued on December 4. Appellant and the arresting officer were in appellant's apartment, the place where he was arrested, until 11:00 a.m., Mr. Manthrapagada told Mr. Kupferberg that he

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when homicide investigators arrived.

Appellant was

transported to the Criminal Investigation Division Office and placed in an interview room. Appellant was alone in that room

from 11:20 a.m. until 1:00 p.m. From 1:00 p.m. until 2:00 p.m., appellant was questioned by Detective Troy Harding about the murder of Arthur Carroll and other shootings in the Seat Pleasant area. According to

Detective Harding, appellant waived his Miranda1 rights. Appellant was alone for approximately 20 minutes, but Detective Harding went back into the interview room at 2:20 p.m. and questioned him until 2:40 p.m. Detective Harding

testified that appellant did not ask to talk to a lawyer. Other than a trip to the bathroom, appellant was alone in the interview room from 2:40 p.m. to 7:50 p.m. From 7:50 p.m.

to 8:35 p.m., he was questioned by Detective Joseph McCann about several shootings, including the Arthur Carroll murder. Appellant executed a written waiver of his Miranda rights. Except for another trip to the bathroom, appellant was

Miranda v. Arizona, 384 U.S. 436, 479 (1966). In Miranda, the Supreme Court of the United States determined that in order to effectuate a suspect's Fifth Amendment privilege against self-incrimination, the suspect must be told that he has the 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 counsel, and that counsel will be appointed if he cannot afford an attorney. Id. at 479. -4-

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alone in the interview room from 8:35 p.m. until 11:40 p.m. At 11:15 p.m., he appeared to be sleeping. From 11:40 p.m.

until 12:40 a.m. on December 31, appellant was questioned by Detective Whitaker. From 12:59 a.m. to 2:04 a.m., appellant At 2:10 a.m., Detective

was questioned by Detective Dwight DeLoatch.

Detective McCann returned to the interview room.

McCann confronted appellant with information to the effect that Curtis Alston had confessed to his involvement in the Arthur Carroll murder and had provided information relating to other murders in the Seat Pleasant area. After being

confronted with that information, appellant made an oral statement in which he acknowledged that he and Curtis Alston shot Carroll. Appellant then gave a written statement which Detective McCann continued to question

concluded at 3:45 a.m.

appellant about other shootings, including Kevin Jackson, until 4:30 a.m. Detective McCann, knowing about Mr.

Kupferberg's letter to Detective Miller, testified that appellant never asked to talk to a lawyer, including Mr. Kupferberg. From 9:30 a.m. to 5:00 p.m. on December 31, appellant was questioned by Detective Ismael Canales. Appellant executed

another written waiver of his Miranda rights and wrote on the waiver, "I would like to stay and continue to talk with this

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investigator."

Detective Canales testified that he believed

the note was necessary because the officers wanted to make sure that appellant did not mind continuing to talk. This

episode of questioning produced four written statements concerning other shootings. Appellant was presented to the

commissioner at 8:00 p.m. on December 31, almost 36 hours after his arrest. Appellant testified that he and Mr. Kupferberg discussed Mr. Kupferberg's telephone conversation with Detective Miller, the letter that Mr. Kupferberg faxed to Detective Miller, and that Mr. Kupferberg had advised him that he should not make a statement but should ask for his attorney. Appellant

testified that he told Detective Harding at least three times that he wanted to talk to Mr. Kupferberg, but Detective Harding told him that he could not make a phone call because Mr. Kupferberg was representing appellant's uncle and would not be able to represent appellant because it would be a conflict of interest. At about 8:00 p.m. on December 30,

according to appellant, he told Detective McCann that he did not want to talk without his lawyer present. He explained

that he signed the Miranda waiver forms because he had been in the interviewing room so long and had repeatedly requested to contact his lawyer but that they had ignored the request.

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The hearing judge found that appellant was not a credible witness and that he had knowingly and voluntarily waived his Miranda rights. Trial Darrell Allen testified that at approximately 2:00 p.m. on December 4, 1998, he was leaning on Kevin Jackson's car talking to Kevin Jackson, who was inside the car. Allen

stated that he stood up and saw a gun pointing at him so he started running. He heard at least eight gunshots.

Kevin Jackson, pursuant to a plea agreement, testified that he had plead guilty to armed robbery and use of a handgun in connection with the robbery and murder on November 29, 1998, of Ronald Muse, appellant's cousin. He also had plead

guilty to possession of cocaine and transporting a handgun. Jackson elaborated and stated that on November 29, 1998, he, Jerome Wright, and Arthur Carroll had gone to appellant's house to rob him. Appellant was not at home, but Ronald Muse

was present, and Arthur Carroll gun-whipped, shot, and killed Ronald Muse. Jackson further testified that, on December 4, 1998, he was in his car when Darrell Allen came over to talk to him. He heard Allen yell and saw him run. Jackson attempted to

drive away but his car would not accelerate, so he was "just

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in the middle of some fire." ran.

Jackson got out of the car and

He stated that he had not seen the assailant. In his statement to police, appellant admitted that he

wanted to speak to Jackson about his alleged involvement in the shooting of Ronald Muse, but that when he walked up to the car, he saw that Mr. Jackson had a gun, and he fired at Mr. Jackson at that time. The State and appellant stipulated that Jerome Wright, if called to testify, would testify that he gave a statement to Detective Harding on February 4, 1999, wherein he stated that Arthur Carroll shot Ronald Muse. It was further stipulated

that, subsequently, Mr. Wright testified under oath in a court hearing that Kevin Jackson was the person who shot Ronald Muse.

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Discussion 1. Appellant first contends that the circuit court erred in denying his motion to suppress his statements to police based on (a) the lengthy duration of the custody and interrogation, (b) the failure to take appellant before a commissioner without unnecessary delay, and (c) the refusal of the officers to disclose the existence of the warrant and to honor appellant's right to counsel. Appellant concludes that,

because of the above facts, the statements were involuntary under the federal and state constitutions as well as Maryland common law. Appellant does not rely on any legal authorities,

however, except with respect to the duration of the custody.2 In reviewing the denial of a motion to suppress, we look only to the record of the suppression hearing and do not consider the record of the trial. See Maryland Rule 4-252;

see Trusty v. State, 308 Md. 658, 670 (1987) (citing Jackson v. State, 52 Md. App. 327, 332 n. 5, cert. denied, 294 Md. 652 (1982)); Gamble v. State, 318 Md. 120, 125 (1989); Herod v.

Appellant does not argue that his Miranda rights were violated because, in advising him of his rights, the police did not expressly acknowledge to him that they had been advised that he was already represented by counsel. In other words, appellant does not challenge the content of the warnings or contend that a different warning should have been given because of the police officers' knowledge. -9-

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State, 311 Md. 288, 290 (1987).

In considering the evidence

presented at the suppression hearing, "[w]e extend great deference to the fact finding of the suppression hearing judge with respect to determining the credibilities of contradicting witnesses and to weighing and determining first-level facts." Perkins v. State, 83 Md. App. 341, 346 (1990). When

conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that the findings are clearly erroneous. 180, 183 (1990). See Riddick v. State, 319 Md.

As to the ultimate conclusion, we must make

our own constitutional appraisal by reviewing the law and applying it to the facts of the case. Id.; Perkins, 83 Md. App. at 346. With regard to the precise issue now before us, the voluntariness of a confession, the Court of Appeals has explained: In reviewing the issue of whether a confession is voluntary under the Fourteenth Amendment, we accept the trial judge's factual findings as correct unless they are clearly erroneous, and from these findings, along with a review of the entire record, make an independent determination of "the ultimate fact, namely, the existence or nonexistence of voluntariness." Hoey v. State, 311 Md. 473, 484 (1988) (citations omitted). Only where police conduct has overborne the defendant's -10-

will to resist and produces a statement that was not freely self-determined will a confession be suppressed. Ball v.

State, 347 Md. 156, 179 (1997), cert. denied, 522 U.S. 1082 (1998). A confession's voluntariness is measured by "the

totality of the circumstances." Reynolds v. State, 327 Md. 494, 504 (1992), cert. denied, 506 U.S. 1054 (1993)(citations omitted); Hoey, 311 Md. at 483. In Hof v. State, 337 Md.

581, 596-97 (1995), the Court of Appeals explained that the factors within the "totality of the circumstances" standard include: where the interrogation was conducted, its length, who was present, how it was conducted, its content, whether the defendant was given Miranda warnings, the mental and physical condition of the defendant, the age, background, experience, education, character, and intelligence of the defendant, when the defendant was taken before a court commissioner following arrest, and whether the defendant was physically mistreated, physically intimidated or psychologically pressured. (citations omitted); see also In re Eric F., 116 Md. App. 509, 517 (1997). (a) Duration of the custody and interrogation

With respect to duration of the custody, appellant relies on Young v. State, 68 Md. App. 121 (1986). In Young, this

Court held that, while the police technically apprised Young of his rights, the overall conduct of the police in -11-

interrogating him tended to negate the purpose of the Miranda safeguards and rendered Young's confessions involuntary. particular, we noted that the police interrogated the defendant "almost continuously" for twenty-two and one-half hours by means of a relay team. Id. at 130. The officers In

also delayed Young's presentment to a judicial officer although one was available, and despite an order by the judicial officer to take Young to a county detention center, the police returned Young to interrogation for further questioning where he eventually confessed. Id. at 126-27. In

light of those circumstances, this Court held that the lengthy custody and interrogation, coupled with the police misconduct, rendered Young's confession involuntary. Id. at 135.

This case, however, is distinguishable from the facts presented in Young. Although appellant was in custody for

thirty-five and one-half hours prior to giving a statement, appellant acknowledges that he was interrogated for only fourteen hours, with the longest period of uninterrupted questioning lasting only about an hour. Officers gave

appellant food, drink, and cigars. Officers also acceded to each request appellant made to be left alone or use the bathroom. Appellant was never in any apparent discomfort.

Additionally, we do not infer improper interrogation tactics

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from the fact that he confessed only after the detectives informed him that his friends implicated him in the murder. The tactics were not overbearing and did not induce appellant to speak at that time. (b) Failure to take appellant before a commissioner without unnecessary delay In arguing that his confession was involuntary and the motion to suppress should have been granted by the circuit court, appellant also points to the delay in taking him before a commissioner. The Court of Appeals, in Johnson v. State,

282 Md. 314, 328-29 (1978), held that a statement, voluntary or otherwise, is subject to exclusion if obtained in violation of the Maryland presentment statute--presently Rule 4-212(e). Thereafter, the General Assembly abrogated the `per se' exclusionary rule of Johnson by enacting Md. Code, Cts & Jud. Proc.

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