“[A] careful reading of Davis reveals that the Supreme Court’s bright line rule, requiring an unequivocal assertion of the right to counsel, pertains to a situation in which the defendant had previously waived his right and then, during the interrogation, arguably sought to exercise his rights.”
How later courts described this case
- “[A] careful reading of Davis reveals that the Supreme Court’s bright line rule, requiring an unequivocal assertion of the right to counsel, pertains to a situation in which the defendant had previously waived his right and then, during the interrogation, arguably sought to exercise his rights.”
Written by the judges who cited it.
Later courts went against this
Overruled by In re Darryl P., 211 Md. App. 112 (2013)
158 Md.App. 402, 857 A.2d 557, 572-73 (2004), overruled by In re Darryl P., 63 A.3d 1142, 1175, 211 Md.App. 112 (Md.Ct.Spec.App.2013);
The opinion
Concurring Opinion by MOYLAN, Judge.
I fully concur not only in the result reached by the majority opinion but in the painstakingly thorough and analytically incisive discussion of the Miranda, issues. I also have no quarrel with any of the specific statements made with respect to the alleged violation of the prompt presentment rule and the impact that such a violation might, under currently prevailing law, have on traditional common law voluntariness.
I write separately only to express my chagrin at what I believe to be a totally unnecessary “spinning of wheels” by both appellate courts over the course of the last fourteen months over an issue that seems to me to be meaningless. Both courts seem to be obsessed (one proactively and the other responsively) with whether a suppression hearing judge, in weighing the totality of factors that go into the ultimate determination of voluntariness, has given sufficiently “heavy weight” to a violation of the prompt presentment rule, if such should be found to have occurred (that finding, of course, being subject to the clearly erroneous standard of appellate review). I am dumbfounded as to why an appellate court should care what weight a suppression hearing judge gave to any factor, because the appellate court is enjoined to weigh the factors for itself.
I begin with the analysis of Judge Harrell for the Court of Appeals in Winder v. State, 362 Md. 275 , 765 A.2d 97 (2001), an opinion that has deservedly become the primer for the standards and the procedures for handling challenges to the voluntariness of confessions in Maryland. As to the proper standard of appellate review of a trial judge’s determination that a confession was voluntary, the Court of Appeals, through Judge Harrell, stated unequivocally:
The trial court’s determination regarding whether a confession was made voluntarily is a mixed question of law and *457 fact. As such, we undertake a de novo review of the trial ■judge’s ultimate determination on the issue of voluntariness.
362 Md. at 310-11 , 765 A.2d 97 (emphasis supplied). See also Gilliam v. State, 320 Md. 637, 647 , 579 A.2d 744 (1990); Lodowski v. State, 307 Md. 233, 255-56 , 513 A.2d 299 (1986); Perez v. State, 155 Md.App. 1, 26 , 841 A.2d 372 (2004); Uzzle v. State, 152 Md.App. 548, 579-80 , 832 A.2d 869 (2003).
On the ultimate issue of voluntariness, the appellate court, taking as a given those iirst-level findings of fact that are not clearly erroneous and, in resolving ambiguities, taking that version of the evidence most favorable to the prevailing party, writes on a clean slate with respect to its de novo weighing. On that issue, it is not marking the paper of the suppression hearing judge, but is making its own independent decision on the basis of the factors that have been factually established.
Even if the suppression hearing judge weighed the factors with impeccable correctness, he is not home free. The independent de novo determination of the appellate court might still go in the opposite direction. Even if the suppression hearing judge, on the other hand, weighed the factors with flagrant disregard of Williams-Hiligh-Facou, a reversal or a remand does not necessarily follow. The independent de novo determination of the appellate court, presumably adhering faithfully to Williams-Hiligh-Facon, might nonetheless make the same determination. Whatever the suppression hearing judge does in the weighing process, rightly or wrongly, will not therefore be dispositive of the final outcome, if the appellate court is truly going to make its own independent de novo determination. The suppression hearing judge, right or wrong, has been by-passed. If that be true, it makes no difference whether, in some other world without de novo review, he might have been right or wrong. The appellate de novo determination has superseded his decision and thereby made his weighing of the factors irrelevant.
In this case, of course, there was no violation of the prompt presentment rule and there was no occasion for anyone to give *458 it any weight, great or small. I find it mind-boggling, nonetheless, that whenever the names Williams-Hiligh-Facon are even whispered, bench and bar lock into the mind set of the Hans Christian Anderson fairy tale “The Emperor’s New Clothes.” Everyone stands at curbside, cheering lustily as the Williams-Hiligh-Facon troika prances imperially down the street, and no one dares to speak the self-evident truth, “The Emperor has no clothes.”