Appendix — Maryland v. Drury

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CONTENTS OF APPENDIX

Page

APPENDIX A:

Reported opinion of the Court of Appeals

of Maryland, filed March 8, 2002,

Dwayne Anthony Drury v. State of Maryland,

368 Md. 331, 793 A.2d 567 (2002) .......... la

APPENDIX B:

Unreported opinion of the Court of Special

Appeals of Maryland, filed January 23,

2001, Dwayne Anthony Drury v. State

of Maryland, No. 75, Sept. Term, 1998 ...... 26a

APPENDIX C:

Unreported proceedings and ruling of the

Circuit Court for Queen Anne’s County,

Maryland, November 26, 1996,

State of Maryland v. Dwayne Anthony

Drury, Cate. NO. STUD .nccccccccccscccces 44a

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APPENDIX A

Court of Appeals of Maryland

No. 23, Sept. Term, 2001

DWAYNE ANTHONY DRURY

V.

STATE OF MARYLAND

March 8, 2002

Argued before BELL, C.J., ELDRIDGE, RAKER,

WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

RAKER, Judge.

After Dwayne Anthony Drury, petitioner, was taken

into police custody, but before he was advised of his rights

pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S. Ct.

1602, 16 L. Ed. 2d 694 (1966), a police officer showed

him physical evidence and told him that the evidence

would be processed for fingerprints. The question we

must decide in this case is whether, under the

circumstances presented herein, the statements that

petitioner made prior to being advised of his Miranda

rights must be suppressed because the officer conducted

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the functional equivalent of interrogation. We shall

answer that question in the affirmative and hold that the

statements should have been suppressed.

I.

Petitioner was indicted by the Grand Jury for Queen

Anne’s County for the offenses of second degree burglary,

fourth degree burglary, and theft over the value of

$300.00. Prior to trial, he filed a motion to suppress the

statements that he made to the police on the grounds that

Corporal Mark Whaley of the Centreville Police

Department in Queen Anne’s County had interrogated him

without informing him of his Miranda rights. Petitioner

_ argued that the police officer’s conduct was tantamount to

interrogation under Miranda in that the officer should have

known that placing evidence in front of petitioner, and

telling him that it would be fingerprinted, was likely to

elicit an incriminating response.

The Circuit Court held a hearing on the motion to

suppress. The only witness to testify was Corporal

Whaley. We recite the facts from the record of the

suppression hearing.

On July, 14, 1996, Corporal Whaley went to the

Hillside Market in response to a report of a break-in and

theft at the market. The owner of the market told Corporal

Whaley that he had found a tire iron behind the counter

near the cash register. The officer looked around and saw

that the rear door of the building had been pried open; it

appeared to him that the tire iron had possibly been used

to gain entry. Further investigation revealed that some

property was missing, including several adult magazines,

several cartons of cigarettes, bottles of liquor, and

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numerous Maryland Instant Scratch-Off Lottery tickets.

Later that evening, a deputy sheriff told Corporal

Whaley that he had seen two men acting suspiciously near

an alleyway close to the market. Corporal Whaley went to

that location, looked through the trash, and found several

adult magazines and a liquor bottle. The officer

interviewed Karl Kirby, a suspect in the case, who led him

to petitioner. Corporal Whaley went to petitioner’s home,

brought him to the police station, and sat him down

“within the department” for questioning. Before advising

petitioner of his rights pursuant to Miranda, Corporal

Whaley placed the tire iron and the trash bag containing

the magazines on a desk in front of petitioner. Petitioner

made some statements about the tire iron and the

magazines. Corporal Whaley then advised petitioner of

his Miranda rights, and petitioner made no further

statements.

On direct examination, Corporal Whaley testified

as follows:

Q: After you talked with Mr. Kirby, did

you go visit Mr. Drury?

A: Yes. I picked Mr. Drury up for

questioning, at which time I proceeded to

show Mr. Drury the evidence which was

retrieved. In showing Mr. Drury the tire

iron that was retrieved from the actual

incident area, Mr. Drury said, well, my

fingerprints could be on that and are on

hundreds of tire irons around Centreville,

okay, and picking up the trash bag in which

the magazines were located in, Mr. Drury

proceeded to tell me the contents of the bag

prior to me even stating what was in the bag

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myself.

Q: What did he tell you?

A: He said that he had touched the

magazines that were in that bag.

On cross-examination, the officer testified as follows:

Q: So you took the evidence out and put it

in front of Mr. Drury?

A: I put it up on the desk in front of myself.

+ * a *

Q: And did you tell Mr. Drury that you were

going to send this evidence off for

fingerprints?

A: As I recall, yes sir.

Q: You told him all that before you

Mirandized him?

A: Yes sir.

Q: And that’s when you claim that he made

some statement about his fingerprints

possibly being on these physical items?

A: Yes sir.

Q: And then once he was Mirandized, he

didn’t want to talk to you?

A: No sir

Petitioner argued that his statements were

inadmissible because they were made in custody, in

response to interrogation, and prior to his being advised of

his Miranda rights. Concluding that the officer’s conduct

and statements would not prompt an answer from

petitioner, the Circuit Court denied petitioner’s motion to

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suppress. Petitioner was convicted by a jury of all counts.’

He noted a timely appeal to the Court of Special Appeals,

and, in an unreported opinion, that court affirmed the

judgment. We granted petitioner’s writ of certiorari.

Drury v. State, 364 Md. 134, 771 A.2d 1069 (2001).

II.

Petitioner argues before this Court that confronting

a suspect in custody with physical evidence of a crime and

telling him that the evidence will be processed for

fingerprints is the functional equivalent of interrogation

and that, in the absence of a valid Miranda waiver, any

subsequent statements must be suppressed. The State

concedes that petitioner was in custody.’ The State argues

that under the circumstances presented in this case, the

officer’s conduct was not the functional equivalent of

interrogation and that Miranda warnings were therefore

unnecessary.

‘Petitioner was sentenced to a term of imprisonment

of five years on the second degree burglary and a term of

imprisonment of five years on the theft charge, to be

served consecutively, with all but six months suspended

and five years probation commencing upon his release

from incarceration. -The court merged the fourth degree

burglary charge for sentencing purposes.

_ ? The record before us is devoid of any information

shedding light on whether any warrant or charging

document had been issued prior to the officer “[picking]

up Mr. Drury for questioning.”

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Ill.

It is a basic principle that a statement taken during

custodial interrogation conducted before a defendant is

informed of his or her Miranda rights may not be used by

the State in its case in chief against the defendant. The test

to be applied in determining whether the police officer’s

statements and exhibition of the physical evidence was

tantamount to interrogation is whether the words and

~ actions of the officer were reasonably likely to elicit

incriminating responses from petitioner. See Williams v.

State, 342 Md. 724, 760, 679 A.2d 1106, 1124-25 (1996).

In Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct.

1682, 64 L. Ed. 2d 297 (1980), the Supreme Court

considered whether Innis, the defendant, was subject to

“interrogation,” as the term was used in Miranda. See

Innis, 446 U.S. at 298, 100 S. Ct. at 1688, 64 L. Ed. 2d

297. The Court concluded that the meaning of

“interrogation” is not limited to express questioning; it

also includes its “functional equivalent.” See id. at 300,

100 S. Ct. at 1689, 64 L. Ed. 2d 297. The Court stated:

“(T]he Miranda safeguards come into play

whenever a person in custody is subjected to

either express questioning or its functional

equivalent. That is to say, the term

‘interrogation’ under Miranda refers not

only to express questioning, but also to 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.

The latter portion of this definition focuses

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primarily upon the perceptions of the

suspect, rather than the intent of the police.

This focus reflects the fact that the Miranda

safeguards were designed to vest a suspect

in custody with an added measure of

protection against coercive police practices,

without regard to objective proof of the

underlying intent of the police. A practice

that the police should know is reasonably

likely to evoke an incriminating response

from a suspect thus amounts to

interrogation. But, since the police surely

cannot be held accountable for the

unforeseeable results of their words or

actions, the definition of interrogation can

extend only to words or actions on the part

of the police officers that they should have

known were reasonably likely to elicit an

incriminating response. ”

Id. at 300, 100 S. Ct. at 1689-90, 64 L. Ed. 2d 297.

While the Jnnis inquiry focuses primarily upon the

perception of the suspect rather than the intent of the

police, the Court noted that the intent of the police is not

irrelevant “for it may well have a bearing on whether the

police should have known that their words or actions were

reasonably likely to evoke an incriminating response.” Jd.

at 302 n.7, 100 S. Ct. at 1690 n.7, 64 L. Ed. 2d 297.

IV.

We turn now to the question of whether it can be

fairly concluded that petitioner was subjected to the

functional equivalent of interrogation. We find that the

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officer’s conduct and words were the functional equivalent

of interrogation within the meaning of Jnnis.

It is undisputed that, although petitioner was in

custody, he was not subjected to express interrogation.

The officer did not ask petitioner questions, but rather

made a statement to him and displayed the tire iron and

magazines.

Petitioner had been brought to the police station for

the express purpose of questioning and, in fact, had been

told so by Corporal Whaley. The police were not engaged

in routine booking procedures; they were not required by

any Maryland rule or procedure to read any document

(other than the Miranda rights) to petitioner. Nonetheless,

the officer placed the tire iron and the trash bag containing

the stolen magazines on the table before petitioner before

advising him of his Miranda rights. The officer told

petitioner that he was going to send the evidence to be

examined for fingerprints. Moreover, the officer testified

that he “was presenting the evidence that was going to be

used for questioning.”

It appears to us that the only reasonable conclusion

that can be drawn from the foregoing facts is that the

officer should have known, in light of his having told

petitioner that he was being brought in for questioning,

that putting the evidence before petitioner and telling him

that the items were going to be fingerprinted was

reasonably likely to evoke an incriminating response from

him. The only plausible explanation for the officer’s

conduct is that he expected to elicit a statement from

petitioner.

The Court of Appeals of New York reached the

same conclusion in People v. Ferro, 63 N.Y.2d 316, 482

N.Y.S.2d 237, 472 N.E.2d 13 (1984). Ferro was arrested

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for murder during the course of a robbery in which some

furs were stolen. The police gave him his Miranda

warnings, and he declined to answer any questions, but

asked to speak to a District Attorney. Ferro was placed in

a cell, and an officer placed the stolen furs on the floor

outside of Ferro’s cell. After telling the police officer that

he still wished to speak to the District Attorney and would

talk if the prosecutor could “do something for him,” Ferro

made some incriminating statements. The New York

Court of Appeals held that Ferro was interrogated and that

the officer should have known that placing the furs in front

of his cell was reasonably likely to elicit an incriminating

response from the defendant. See id. 482 N.Y.S.2d 237,

472 N.E.2d at 17. The court reasoned that “[w]here as

here, . . . the only possible object of the police action in

revealing evidence to a defendant is to elicit a statement

from him, it does no violence to logic to conclude that the

police should have known that it would do so.” Id.

(citations omitted).

The State relies on Vines v. State, 285 Md. 369, 402

A.2d 900 (1979), State v. Conover, 312 Md. 33, 537 A.2d

1167 (1988), and Williams v. State, 342 Md. 724, 679

A.2d 1106 (1996), to support its argument that petitioner

was not subjected to police interrogation by Corporal

Whaley. We find each of these cases distinguishable.

In Vines, the defendant was arrested in his home

during the execution of a search warrant and then taken to

the police station. See Vines, 285 Md. at 372, 402 A.2d at

901. The police advised Vines of his Miranda rights, and

Vines invoked his right to remain silent. See id. He was

then booked and taken to the roll call room where,

displayed on the table, were drugs that the police had

seized pursuant to the warrant. See id. at 369, 402 A.2d at

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901-02. Vines was given a copy of the warrant, including

the inventory of the seized property, and told that “this is

what was recovered from his house during the raid.” Id.

at 373, 402 A.2d at 902. Vines then stated that “‘it was his

suff ” and asked “‘what he could do to help himself out.’”

Id.

We held that there was no interrogation in violation

of Miranda. See id. at 378, 402 A.2d at 905. Vines was

given the copy of the warrant and the inventory of the

Although the case predated Jnnis, this Court noted

that nonverbal police conduct could be tantamount to

interrogation for Miranda purposes. See Vines, 285 Md.

369, 376, 402 A.2d 900, 903-04 (1979). We did not,

however, have the benefit of the Jnnis language reasoning

that interrogation “refers not only to express questioning,

but also to 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.” Rhode

Island v. Innis, 446 U.S. 291, 301, 100 S. Ct. 1682, 1689-

90, 64 L- Ed. 2d 297 (1980). We noted that whether police

conduct was tantamount to interrogation depends upon the

facts and circumstances of the particular case, and that the

cases throughout the country presented a wide variety of

fact patterns and judicial attitudes, presenting no clear

pattern that we were persuaded to follow. See Vines, 285

Md. at 376, 402 A.2d at 904. The same is virtually true

today.

Because we fine [sic] Vines distinguishable, it

matters not that the qualifying language of Jnnis was not

a consideration.

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property taken from his home pursuant to the Maryland

Rules, which “provided that an officer taking property

under a search warrant shall make a written inventory of

the property taken in the presence of the person from

whom the property is taken if such person is present at the

time the warrant was executed.” Jd. at 377, 402 A.2d at

904. Moreover, the officer’s statements did not stray from

the ambit of the Maryland Rules; he “merely made the true

statement that this was what was recovered from Vines’

house during the raid.” Jd. at 378, 402 A.2d at 904.

Giving the inventory to Vines in compliance with the

rules, together with the simple factual statement linking

the contraband to the inventory, was not tantamount to

interrogation within the meaning of Miranda. See id. at

377, 402 A.2d at 904-05.

In sharp contrast, petitioner was not being

processed, the police were not serving a warrant or

inventory upon him pursuant to a Maryland rule, and they

did not merely place the tire iron and stolen magazines

before him. The officer told petitioner that they were

going to process the items for fingerprints. Considering

that the officer brought petitioner to the station for the

specific purpose of questioning him, it hardly strains logic

to conclude that the officer should have known that his

conduct and words would elicit an incriminating response.

Neither Conover nor Williams add any weight to

the State’s argument. In Conover, as in Vines, the

defendant was arrested and invoked his Miranda rights.

See Conover, 312 Md. at 37, 537 A.2d 1169. The police,

in compliance with the Maryland Rules, read and gave to

him a copy of the Statement of Charges, including the

application for the statement of charges, suggesting that he

read them and ask any questions that he had. See id. at 42,

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537 A.2d at 1171. Conover then made a self-incriminating

statement. Following our earlier decision in Vines — that

routine processing of an arrested defendant does not

amount to interrogation under Miranda — we found “no

sinister motive [in] the fact that the police provided

[Conover] with a copy of the Application as well as a copy

of the Statement of Charges.” Jd. As noted above, in the

case before us, there was no analogous official basis or

procedural rule requiring Corporal Whaley to act as he did.

The only reasonable explanation for his conduct is that he

intended to elicit a statement from petitioner.

Williams is also distinguishable. Williams was

arrested and, in response to his inquiry as to why he was

arrested, was informed that he was under arrest for a

double murder. See Williams, 342 Md. at 758, 679 A.2d

at 1124. One of the officers showed him a photograph

purportedly of Williams using one of the victims’ ATM

cards. See id. Williams stated that “that’s me.” Jd.

Williams was then given his Miranda rights, at which

point he invoked his right to remain silent and requested

an attorney. See id. When the officers began to gather

their papers, one of them told Williams to remove his

earring, and Williams mumbled, “you can’t get me. I'll

just say a girl gave me the card.” Jd. One of the officers

commented that “this is going to work” and again told

Williams that he was being charged with two murders. Jd.

Williams then said “I am never going to get out.” Jd.

The trial court suppressed the first statement, but

not the second or third. This Court agreed, holding that

the second and third statements were not the result of

interrogation because the words and actions of the police

following the Miranda warnings were not reasonably

likely to elicit an incrimination response. We noted that

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the officers, in gathering their papers and telling Williams

to remove his earring, were engaged in “routine

procedures that the officers could hardly be expected to

anticipate would prompt an incriminating statement.” Jd.

at 760-61, 679 A.2d at 1125. Like Vines and Conover,

Williams is easily distinguished from the case before us on

the basis that the police conduct in this case was not

routine police procedure nor “innocuous comment.”

Corporal Whaley’s actions were aimed at invoking an

incriminating remark.

As demonstrated above, the facts in this case

suggest that petitioner was subject to custodial

interrogation prior to being advised of his Miranda rights.

Corporal Whaley had reason to know that his conduct was

reasonably likely to elicit an incriminating response;

indeed, there is no explanation for his conduct but that he

expected to elicit such statements. In stark contrast to the

cases relied on by the State, this is not a case where a

suspect incriminated himself while police officers merely

conducted routine arrest procedures. Accordingly, we

hold that the trial court should have suppressed the

statements that petitioner made before he was given his

Miranda warnings.

JUDGMENT OF THE COURT OF SPECIAL

APPEALS REVERSED. CASE REMANDED TO

THAT COURT WITH DIRECTIONS TO REVERSE

THE JUDGMENT OF THE CIRCUIT COURT FOR

QUEEN ANNE’S COUNTY AND REMAND THE

CASE TO THE CIRCUIT COURT FOR A NEW

TRIAL. COSTS IN THIS COURT AND THE

COURT OF SPECIAL APPEALS TO BE PAID BY

RESPONDENT.

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CATHELL and BATTAGLIA, JJ., dissent.

Battaglia J., dissenting.

I respectfully dissent.

At approximately 5:40 a.m. on July 14, 1996,

Corporal Whaley of the Centreville Police Department

responded to a call reporting a breaking and entering and

theft at the Hillside Market in Centreville, Maryland.

During the course of his investigation, Corporal Whaley

found a tire iron, which had been. used to break into the

store. The investigation also revealed that the suspects had

stolen $1,370.00 worth of instant scratch off lottery

tickets, $299.00 worth of adult magazines, $800.00 worth

of cartons of cigarettes, and $104.92 worth of alcoholic

beverages. A later search of refuse by Corporal Whaley

revealed a trash bag containing several adult magazines

and one empty malt liquor bottle.

Thereafter, on July 15", Corporal Whaley went to

the place of employment of Mr. Carl Kirby to speak with

him about the incident. Kirby revealed that the petitioner,

Dwayne Drury, and another individual, David Reinecke,

committed the Hillside Market theft.

Later that same day after talking with Kirby,

Corporal Whaley went to Drury’s residence from whence

he and Drury traveled to the Centreville Police Department

to discuss the matter. Drury and Corporal Whaley were in

the Corporal’s office at the police station when the

following occurred, as recounted by Corporal Whaley:

Whaley: I was stating, I placed the evidence

up on my desk, which I was going to

be presenting to Mr. Drury, and

while presenting it, I was explaining

State:

Whaley:

State:

Whaley:

State:

Whaley:

State:

Whaley:

State:

Whaley:

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to him the process that was going to

be taking place, as far as when I

showed him the tire iron, I advised

him I [sic] it would be sent off for —

to lift possible latent prints as far as

the individuals that were the

perpetrators, at which time Mr.

Drury made the statement to me that

his prints could possibly — were

probably on that tire iron because

there are hundreds of tire irons

around Centreville.

Did you show him anything else?

When I was picking the bag up to

show it to him, he made the

statement that he advised me [of] the

contents of the bag, and he made the

Statement that he had already

touched it.

By the bag, you mean the trash bag

you found in the alley way?

That’s correct.

What did he say?

He stated that the magazines were in

it. He did not mention the malt

liquor bottle.

Was that before you showed him the

contents?

That’s correct.

What did he say?

He said he knew what was in the

bag. He basically told me the

magazines were in the bag, that he

ee

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had touched them.

State: And that’s pretty much the end of

your discussion with Mr. Drury?

Whaley: That’s correct. He chose to exercise

his right not to talk to me.

Drury was released, without arrest.

After further investigation, Drury was arrested on

July 26, 1996, and charged with burglary in the second

degree pursuant to Maryland Code (1957, 1996 Repl.

Vol.) Art. 27, Section 30(a), burglary in the fourth degree

pursuant to Maryland Code (1957, 1996 Repl. Vol.) Art.

27, Section 32(a)(2) and (c), theft pursuant to Maryland

Code (1957, 1996 Repl. Vol.) Art. 27, Section 342,

malicious destruction of property pursuant to Maryland

Code, (1957, 1996 Repl. Vol.) Art. 27, Section 111, and

common law conspiracy.

Prior to trial, petitioner moved to suppress the

statements he made to Corporal Whaley upon his arrival

at the police station on the grounds that he had not been

given his Miranda warnings. The thrust of his argument

was that Corporal Whaley had intended to elicit an

incriminating statement when he placed the evidence on

his desk and informed Drury that it would be processed for

fingerprints. The trial court denied the motion to suppress,

stating: |

Just saying he was going to do it, he got the

evidence bag and he said he put it down on

the desk or table in front of him, meaning

the officer, you asked him specifically that,

and he, your client then, according to the ~

officer, just made these statements. In some

ways they weren’t even apropos of anything

that was said, he said he was going to send

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them off. Just doesn’t seem to me that that

is something that would prompt an answer.

Petitioner argues, and the majority agrees, that the

trial court improperly denied his motion to suppress

because by confronting Drury with the physical evidence

of his crime and informing him that the evidence would be

processed for fingerprints, Corporal Whaley engaged in

the functional equivalent of an interrogation in violation of

Drury’s Fifth Amendment privilege against self-

incrimination. I do not agree. The situation presented

does not differ significantly from the scenario that arises

when a suspect is in custody and is expressly questioned

while being “booked,” when Miranda warnings are not

required.

From the majority’s perspective, being brought by

police officers to, and crossing the threshold of, the police

station creates an environment which is instantaneously

infused with coercive and compelling elements for a

suspect. In their view, being taken to the police station

itself could be sufficient to trigger the administration of

Miranda warnings. In contrast, however, in Pennsylvania

v. Muniz, 496 U.S. 582, 110 S. Ct. 2638, 110 L. Ed. 2d

528 (1990), in which the drunken driver was in custody at

the police station, the Supreme Court recognized that there

is a distinction between questions or situations involving

coercion designed to elicit information for investigatory

purposes and requiring administration of Miranda

warnings, and communication between police officers and

suspects, such as pre-Miranda booking questions. In

Muniz, a plurality of the Court determined that the

Miranda warnings are not required before “routine” »

booking questions are asked. See 496 U.S. at 601, 110S.

Ct. at 2650, 110 L. Ed. 2d at 552.

iain

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This Court in Hughes v. State, 346 Md. 80, 695

A.2d 132, cert. denied, 522 U.S. 989, 118 S. Ct. 459, 139

L. Ed. 2d 393 (1997), recognized that not all questions

proffered to a suspect during the booking process are so

immunized and suggested that careful scrutiny of the

factual setting of each encounter was required. Jd. at 94-

95, 695 A.2d at 139 (explaining that for the booking

question exception to apply, “the questions must be

directed toward securing simple identification information

of the most basic sort”)(quoting United States ex rel. Hines

v. LaValle, 521 F.2d 1109, 1113 & n.2 (2™ Cir. 1975),

cert. denied sub. nom., Hines v. Bombard, 423 U.S. 1090,

96 S. Ct. 884, 47 L. Ed. 2d 101 (1976))(internal quotations

omitted).

In the present case, Drury was not confronted with

a situation in which he was questioned at all or asked for

a response to which he would have to decide among

truthfulness, falsity or silence — the “trilemma” discussed

in Muniz. 496 U.S. at 596-97, 110 S.Ct. at 2647-48, 110

L.Ed. 2d at 549. Rather, he blurted out an explanation

about his fingerprints and the trash bag, which he intended

to be exculpatory and explanatory.

Furthermore, Corporal Whaley posed no question

to Drury, which would call for an answer or expression of

an opinion; the officer simply informed Drury that the-

evidence would be sent off for fingerprinting. See United

States v. Allen, 247 F.3d 741, 765 (8™ Cir.-2001), petition

for cert. filed, (U.S. Oct. 22, 2001)(No. 01-

7310)(“Informing a suspect that he has been identified in

a lineup contributes to the intelligent exercise of his

judgment and may likely make firm his resolve to refuse

to talk to the police without counsel.”); United States v.

Payne, 954 F.2d 199, 203 (4™ Cir. 1992), cert. denied, 503

19a

U.S. 988, 112 S. Ct. 1680, 118 L. Ed. 2d 396

(1992)(agent’s statement to defendant which did not seek

or require a response was not an interrogation); United

States v. Jackson, 863 F.2d 1168, 1172 (4" Cir.

1989)(DEA agent’s statement which was in the form of a

declaration, not a question, was not the functional

equivalent of an interrogation where defendant responded

to hearing the agent’s declaration by making a false

exculpatory statement which was used against him at

trial); United States v. Comosona, 848 F.2d 1110, 1112-13

(10" Cir. 1988)(agent’s act of giving defendant his

business card and inviting defendant to call him if he

wanted to talk to him about the incident after defendant

had invoked his right to counsel was not an impermissible

interrogation as contemplated by the Supreme Court’s

decisions in Miranda and Innis); Virgin Islands v. Kidd, 79

F. Supp. 2d 566, 574 (D.V.I. 1999)(finding no

interrogation took place where a defendant confessed to

committing the crime after one of the police officers

initiated a conversation with the defendant about his

family); Weber v. State, 326 Ark. 546, 933 S.W.2d 370,

373 (1996)(finding no interrogation where the defendant

made an inculpatory statement prior to arrest upon being

greeted by the police officer); State v. Porter, 303 N.C.

680, 281 S.E.2d 377, 384-85 (1981)(where a radio

exchange between two officers inquiring of one another as

to whether the bank bag had been recovered prompted

defendant to inform the officers that “the bank bag is in

the car” followed by the officer clarifying by asking,

“What bank bag?” and defendant’s statement, “The bag

from the robbery” was found not to be the product of an

interrogation).

While it is clear from the facts of this case that

20a

petitioner was not subjected to an express interrogation by

Corporal Whaley prior to being informed of his Miranda

rights, such as in the booking situation, Drury,

nevertheless, argues that he was subjected to the

“functional equivalent of an interrogation” as explicated in

the United States Supreme Court’s decision in Rhode

Island v. Innis, 446 U.S. 291, 300-01, 100 S. Ct. 1682,

1689, 64 L. Ed. 2d 297, 307-08 (1980). That is not the

case here, however.

The Court in Innis set forth the following

explanation of what constitutes an interrogation as

contemplated by the Miranda decision:

We conclude that the Miranda safeguards

come into play whenever a person in

custody is subjected to either express

questioning or its functional equivalent.

That is to say, the term “interrogation”

under Miranda refers not only to express

questioning, but also to 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. The latter portion of this

definition focuses primarily upon the

perceptions of the suspect, rather than the

intent of the police. This focus reflects the

fact that the Miranda safeguards were

designed to vest a suspect in custody with

an added measure of protection against

coercive police practices, without regard to

objective proof of the underlying intent of

the police. A practice that the police should

2la

know is reasonably likely to evoke an

incriminating response from a suspect thus

amounts to interrogation. But, since the

police surely cannot be held accountable for

the unforeseeable results of their words or

actions, the definition of interrogation can

extend only to words or actions on the part

of police officers that they should have

known were reasonably likely to elicit an

incriminating response. —

446 U.S. at 300-02, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at

307-08. (emphasis in original).

The Fourth Circuit Court of Appeals noted that “the

Innis definition of interrogation is not so broad as to

capture within Miranda’s reach all declaratory statements

by police officers concerning the nature of the charges

against the suspect and the evidence relating to those

charges.” Payne, 954 F.2d at 202; see Tucker v. Warden,

175 F. Supp. 2d 999, 1002-03 (S.D. Ohio 2001)(stating

that “to determine whether a suspect has been

‘interrogated,’ the heart of the inquiry focuses on police

coercion, and whether the suspect has been compelled to

speak by that coercion”)(quoting State v. Tucker, 81 Ohio

St.3d 431, 692 N.E.2d 171, 175 (1998)); Kirby v.

Senkowski, 141 F. Supp. 2d 383, 395 (S.D.N.Y.

2001)(stating that for statements to be suppressed as a

violation of the Fifth Amendment privilege against self-

incrimination, “the statements must be the result of

compulsion”); United States v. Castorena-Jaime, 117 F.

Supp. 2d 1161, 1170 (D. Kan. 2000)(“. . . absent a

Showing of coercion or other misconduct by law

enforcement, an arrestee’s volunteered statements made

before receiving the Miranda warning may be used against

22a

him.”)

Ascertaining whether a particular situation involved

an interrogation or the functional equivalent of an

interrogation depends on the facts and circumstances of

each case, “particularly whether the statements are

objectively and reasonably likely to result in incriminating

responses by the suspect, as well as the nature of the police

statements and the context in which they are given.”

Allen, 247 F.3d at 765. While it is true that a direct

question need not be posed to a criminal defendant in

order to constitute the functional equivalent of an

interrogation, see Innis, 446 U.S. at 301, 100 S. Ct. at

1689-91, 64 L. Ed. 2d at 308, I believe that Corporal

Whaley’s direct factual statement that the items would be

processed for fingerprinting does not rise to the level of

coercion or compulsion contemplated in Jnnis as being the

functional equivalent of an interrogation. As the Fourth

Circuit Court of Appeals explained in Payne:

That no comment on the evidence in a case

will ever issue in the presence of a criminal

suspect seems to us neither realistic nor

desirable as an absolute rule derived from

the Fifth Amendment. Indeed, it may even

be in the interest of a defendant to be kept

informed about matters relating to the

charges against him.

** *

We thus reject [Payne’s] argument that -

statements by law enforcement officials to a

suspect regarding the nature of the evidence

against the suspect constitute interrogation

as a matter of law. It simply cannot be said

that all such statements are objectively

23a

likely to result in incriminating responses by

those in custody. The inquiry mandated by

Innis into the perceptions of the suspect is |

necessarily contextual . . . and whether

descriptions of incriminating evidence

constitute the functional equivalent of

interrogation will depend on circumstances

that are too numerous to catalogue. As a

result, substantial deference on the question

of what constitutes interrogation must be

paid to the trial courts, who can best

evaluate the circumstances in which such

Statements are made and detect their

coercive aspects.

954 F.2d at 202-03. The same result occurred in Williams

v. State, 342 Md. 724, 760-61, 679 A.2d. 1106, 1125

(1996) when this Court did not suppress an incriminatory

statement made by a defendant in custody in a police

station after police advised him that they had evidence

establishing his guilt, although the defendant had invoked

his right to an attorney and one was not present.

Although one could opine that Corporal Whaley

was being deceptive in his placement of the evidence on

the desk in front of Drury simultaneously with his

declaration that the items would be processed for

fingerprints, that opinion is not enough of a basis to

require suppression of Drury’s statement. It is not

improper to confront a suspect with the factual or physical

evidence of his or her allegedly criminal act. Numerous

federal and state jurisdictions have rejected what Drury

asserts when they have considered a wide range of factual

scenarios which involved confronting a suspect with

physical evidence of the crime or a verbal recitation to the

24a

suspect of the evidence against him. See Allen, 247 F.3d

at 764-65 (holding that informing the suspect that three out

of four eyewitnesses placed him at the scene of the crime

was “a simple description of the status of the ongoing

investigation” and not the functional equivalent of an

interrogation for purposes of the Fifth Amendment);

Payne, 954 F.2d at 203 (holding that agent’s statement to

defendant during post-arrest transport by the FBI

informing defendant that agents had found a gun in his

home after which defendant made an inculpatory remark

was not an interrogation); Lewis v. State, 509 So.2d 1236

(Fla. App. 4” Dist. 1987), cert. denied, 486 U.S. 1036, 108

S. Ct. 2025, 100 L. Ed. 2d 612, (1988)(trial court did not

err in failing to suppress defendant’s statement, “Man, he

took it like a man. I should have hit him a couple more

times,” which defendant made while police were showing

him a videotape of the robbery because the act of showing

the tape was not the functional equivalent of an

interrogation); State v. McLean, 294 N.C. 623, 242 S.E.2d

814, 818 (1978)(finding that by displaying the suspect’s

belongings found at the scene of the crime to the suspect

while he was in custody, but had not been given the

Miranda warnings, the officer did not engage in conduct

which was “inquisitional in nature,” thus the suspect’s

statements were not the product of an interrogation).

It is also important to note that Drury was not

arrested on July 15, 1996, after he gave his explanation.

He was arrested on July 26, 1996, after additional

investigation.

Thus, my analysis reveals that Drury’s pre-Miranda

custodial statements concerning the physical evidence of

his crime were the product of his own free will and

consciousness, rather than the result of an interrogation.

25a

I believe the majority stretches the holding of Innis to

conclude that under the circumstances present in this case,

of having the defendant view physical evidence of the

crime and of having a police officer state that the evidence

will be processed for fingerprints, is tantamount to an

interrogation. I agree with the Circuit Court’s decision to

deny Drury’s motion to suppress his unwarned statement,

for I find no Fifth Amendment violation. Accordingly, I

would affirm the decision of the Court of Special Appeals.

Judge CATHELL has authorized me to state that

he joins in this dissent.

26a

APPENDIX B

Unreported

Court of Special Appeals of Maryland

No. 75, Sept. Term, 1998

DWAYNE ANTHONY DRURY

V.

STATE OF MARYLAND

January 23, 2001

Submitted before MURPHY, C_J., EYLER, JAMES

R., and KRAUSER, JJ.

KRAUSER, Judge.

Dwayne Anthony Drury, appellant, was charged

with second degree burglary and related offenses. Prior to

trial, appellant moved to suppress statements he had made

to police. That motion was denied. Thereafter, he was

convicted by a jury in the Circuit Court for Queen Anne’s

County of second degree burglary, fourth degree burglary

and theft over $300. Following that trial, he was

27a

sentenced to a term of incarceration and ordered to pay

restitution. This appeal followed.

Appellant presents two questions on appeal:

I. Did the trial court err in denying his

motion to suppress?

Il. Was the evidence sufficient to

sustain his convictions?

BACKGROUND

Motion to Suppress

Corporal Marc Whaley of the Centreville Police

Department was the only witness called to testify by either

party at the hearing on appellant’s motion to suppress.

Corporal Whaley testified that he had investigated a

break-in and theft at the Hillside Market in the early

morning hours of July 14, 1996.

Upon arriving at the market, he spoke to an

employee of the market who informed him that he had

found a tire iron behind the counter near the cash register.

Corporal Whaley learned that adult magazines, some of

which were still wrapped in plastic, cartons of cigarettes,

bottles of liquor and Maryland Instant Scratch-Off lottery

tickets were missing and had been apparently taken during

the burglary.

Later that evening, a deputy sheriff informed

Corporal Whaley that he had observed two men on the

corner of Commerce and Water Streets in the early

morning hours of July 14th, acting in a suspicious manner.

That street corner was not far from the market. The next

morning, Corporal Whaley went to an alley at that

28a

location, and looked through the trash. Opening one of the

trash bags, Corporal Whaley found several adult

magazines, some of which were still wrapped in plastic,

and a liquor bottle.

As a result of his investigation, Corporal Whaley

went to appellant’s home and transported him to the police

station to question him about the burglary. Before advising

appellant of his Miranda’ rights, Corporal Whaley placed

the tire iron and the trash bag on the desk. According to

Corporal Whaley, he was “presenting the evidence that

was going to be used for the questioning.” When Corporal

Whaley informed appellant that he was going to send the

items to be fingerprinted, appellant stated that his

fingerprints could be on the tire iron, and that his

fingerprints were on “hundreds of tire irons around

Centreville.” Corporal Whaley then picked up the trash

bag; whereupon, appellant stated that he had touched the

magazines inside the bag. Corporal Whaley advised

appellant of his Miranda rights, and appellant did not say

anything further.

At the conclusion of the hearing, appellant argued

that Corporal Whaley intended to elicit an incriminating

response when he showed him the bag and the tire iron

and told him that they would be processed for fingerprints.

The trial judge disagreed. He stated:

Just saying he was going to do it, he got the

evidence bag and he said he put it down on

the desk or table in front of him, meaning

the officer, you asked him specifically that,

' See Miranda v. Arizona, 384 U.S. 436 (1966).

_—

29a

and he, your client then, according to the

officer, just made these statements. In some

ways they weren’t even apropos of anything

that was said, he said he was going to send

them off. Just doesn’t seem to me that that

is something that would prompt an answer.

Accordingly, the trial court denied appellant’s

motion.

Trial

John Chenaud was the owner of the Hillside Market

in Centreville. On July 14, 1996, Chenaud opened the

market at approximately 5:00 a.m. and went inside. When

he went behind the counter, he found a tire iron. He

noticed that lottery tickets, adult magazines, cartons of

cigarettes and liquor were missing. He observed that the

back door of the market had been pried open. Chenaud

telephoned the police. According to Chenaud, the value of

the items taken was $2,835.94.

Deputy First Class George Sewell of the Queen

Anne’s County Sheriff's Department was driving his

patrol car when, sometime between midnight and 2:00

a.m. on July 14, 1998, he stopped at a red light at the

comer of Water and Commerce Streets. He looked to his

right and saw an individual he knew named David Renke.

Mr. Renke was looking at the entrance of an alley. Deputy

Sewell observed appellant run out of the alley and stop

when he got to Renke. Both men then began walking

toward Water Street. The deputy waved to Renke, but

Renke did not wave back. The location was

approximately one-quarter to one-half mile from the

30a

Hillside Market.

At the time of the incident, Karl Kirby lived with

Renke in an apartment at the corner of Commerce and

Water Streets. Kirby returned home from work during the

early morning hours of July 14, 1996, and found Renke

and appellant in the apartment. The three shared a bottle

of Kings Cobra malt liquor. Kirby found cigarettes,

lottery tickets and “girlie magazies [sic]” in the apartment.

According to Kirby, appellant told him that he had gotten

the magazines, cigarettes and scratch off lottery tickets “at

Hillside.” Appellant further informed Mr. Kirby that he

had entered Hillside through an unlocked back door.

Kirby then told appellant and Renke to take the lottery

tickets out of his apartment.

Later that day, Corporal Whaley told Deputy

Sewell about the break-in. Deputy Sewell recounted

seeing Renke and appellant, and told Corporal Whaley that

he might want to check the alley. At approximately 3:00

a.m. on July 15th, Corporal Whaley went to the alley and

looked through the trash bags. In one of the trash bags he

found “several adult magazines” and an empty bottle of

King Cobra malt liquor.

Corporal Whaley knew that Kirby and Renke lived

in an apartment above the alley. Later that morning, the

corporal went to Kirby’s place of employment and took

him to the police station for questioning. After obtaining

a written statement from Kirby, Corporal Whaley went to

appellant’s home and took him to the police station for

questioning. At the police station, appellant made the

statements that were the subject of the motion to suppress.

After speaking with appellant, Corporal Whaley

again spoke to Kirby. Kirby consented to a search of his

3la

apartment. He told Corporal Whaley the location of one

carton of Newport cigarettes. He also told Corporal

Whaley that magazines could be found stuck into an old

arm chair which had its underside ripped open.

At trial, Chenaud examined a group of magazines

marked collectively as Exhibit 3. He stated that his wife

had made a list of the missing items. He testified that

those magazines were the same type that he sold in his

store. He further stated that magazines included in the

exhibit “matched up” with the missing magazines on the

jist that his wife had made. He conceded, however, that

“{t’s possible that what was taken may not be in that pile.”

DISCUSSION

I

Appellant contends that the trial court erred in

denying his motion to suppress the statements he made to

Corporal Whaley. He argues that the statements in

question should have been suppressed because they were

made as a result of a custodial interrogation and obtained

before Miranda warnings had been given. While not

disputing that appellant was in custody at the time he made

the statements in question, the State responds that the

Statements were admissible because they were made

before an interrogation had commenced.

In considering the denial of a motion to suppress,

the record at the suppression hearing is the exclusive

source of facts for our review. Lee v. State, 311 Md. 642,

648 (1988); Trusty v. State, 308 Md. 658, 670 (1987);

Aiken v. State, 101 Md. App. 557, 563 (1994). We extend

DT

32a

great deference to the first-level fact-finding of the

suppression court and accept the facts as found, unless

clearly erroneous. Riddick v. State, 319 Md. 180, 183

(1990); Perkins v. State, 83 Md. App. 341, 346-47 (1990).

Moreover, we give due regard to the suppression court’s

opportunity to assess the credibility of the witnesses.

McMillian v. State, 325 Md. 272, 281-82 (1992). Further,

we review the evidence in the light most favorable to the

State as the prevailing party. McMillian, 325 Md. at 281;

Riddick, 319 Md. at 183.

While we accept the findings of disputed fact unless

: clearly erroneous, after having given due regard to the

lower court’s opportunity to assess the credibility of

witnesses, we make our own constitutional appraisal as to

the effect of those facts. Ornelas v. United States, 517

U.S. 690, 696-97 (1996); McMillian, 325 Md. at 285.

In a criminal case, when the prosecution introduces

an extrajudicial confession or admission given by the

defendant to the authorities, the basic rule is that it must,

upon proper challenge, establish by a preponderance of the

evidence that the statement was obtained (1) in

conformance with the dictates of Miranda and (2)

voluntarily. See Lodowski v. State, 307 Md. 233, 250

(1986).

In Miranda, the United States Supreme Court held

that “in the context of ‘custodial interrogation’ certain

procedural safeguards are necessary to protect a

defendant’s Fifth and Fourteenth Amendment privilege

against compulsory incrimination.” Rhode Island v. Innis,

446.U.S. 291 (1980). Accordingly, “the prosecution may

not use statements, whether exculpatory or inculpatory,

stemming from custodial interrogation of the defendant

33a

unless it demonstrates the use of procedural safeguards

effective to secure the privilege against

self-incrimination.” Miranda, 384 U.S. at 479. “Those

safeguards include the now familiar Miranda warnings.

Innis, 446 U.S. at 297.

In Innis, the United States Supreme Court defined

the term “interrogation” as used in the Miranda decision.

It concluded that,

the Miranda safeguards come into play

whenever a person in custody is subjected to

either express questioning or its functional

equivalent. That is to say, the term

“qnterrogation” under Miranda om, an

only to express questioning, but alsé to 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.

Innis, 446 U. S. at 300-01. The Court further stated that

whether any words or conduct on the part of the police are

likely to elicit an incriminating response is to be viewed

from the perspective of the suspect, rather than from the

intent of the police. Jd. at 301. The intent of the police is

relevant, but only to the extent that it reflects on whether

or not their words or conduct is reasonably likely to elicit

an incriminating response. Jd. at 301, n 7.

In Innis, after a murder suspect had been arrested

and informed of his Miranda rights, he requested an

attorney. According to the dictates of Miranda and of

Edwards v. Arizona, 451 U.S. 477 (198 1), the police were

required to stop interrogating the suspect until he either

34a

had counsel present or reinitiated communication with the

police. While transporting the suspect from the scene of

his arrest to the police station, the officers discussed

among themselves the possibility that children attending

a nearby school for handicapped children would find the

loaded gun and injure themselves. The suspect overheard

the conversation and told the officers that he would show

them the location of the gun. He directed the officers to a

field near the scene of his arrest and pointed out the

location of the gun.

Innis subsequently sought to suppress the gun and

his statements regarding it, alleging that he had been

“interrogated” in violation of his right to remain silent.

Although a majority of the Rhode Island Supreme Court

agreed that Innis had been subjected to “‘subtle coercion’

that was the equivalent of ‘interrogation’” Jnnis, 446 U.S.

at 296, the United States Supreme Court did not.

The Court explained:

The case thus boils down to whether,

in the context of a brief conversation, the

officers should have known that the

respondent would suddenly be moved to

make a self-incriminating response. Given

the fact that the entire conversation appears

to have consisted of no more than a few off

hand remarks, we cannot say that the

officers should have known that it was

reasonably likely that Innis would so

respond. This is not a case where the police

carried on a lengthy harangue in the

presence of the suspect. Nor does the

record support the respondent’s contention

35a

that, under the circumstances, the officers’

comments were particularly “evocative.” It

is our view, therefore, that respondent was

not subjected by the police to words or

actions that the police should have known

were reasonably likely to elicit an

incriminating response from him.

446 US. at 303. :

The United States Supreme Court again considered

the scope of “custodial interrogation” in Arizona v. Mauro,

481 U.S. 520 (1987). There, a defendant who had been

arrested for killing his son invoked his right to counsel.

The police stopped questioning the defendant and placed

him in the office of the police captain. The defendant’s

wife asked to be allowed to speak with her husband. The

officers told both defendant and his wife that they could

talk to each other, but only if an officer were present in the

room to observe and hear what was going on. The officer

brought the defendant’s wife into the room, seated himself

at a desk and placed a tape recorder in plain view. He

taped the conversation. Mauro sought to suppress the

recording, arguing that it was a product of police

interrogation. The trial court rejected that argument. The

Arizona Supreme Court reversed, noting that the officers

had acknowledged in pretrial hearings that they knew it

was “possible” that Mauro would make an incriminating

statement.

The United States Supreme Court held that Mauro’s

statements were not the result of police interrogation. It

noted that no questions were asked about the crime, nor

was the decision to allow the meeting the “kind of

psychological ploy that properly could be treated as the

36a

functional equivalent of interrogation.” Jd. at 527.

The Court further explained:

Mauro was not subjected to compelling

influences, psychological ploys, or direct

questioning. Thus, his volunteered

statements cannot properly be considered

the result of police interrogation.

In deciding whether particular police

conduct is interrogation, we must remember

the purpose behind our decisions in

Miranda and Edwards: preventing

government officials from using the

coercive nature of confinement to extract

confessions that would not be given in an

unrestrained environment.

481 U.S. at 529-30. See also State v. Conover, 312 Md.

33, 41-42 (1988).

The Maryland Court of Appeals considered whether

a display of evidence constituted interrogation in Vines v.

State, 285 Md. 369 (1979). In Vines, a suspect who had

invoked his right to counsel was taken to the roll call room

at police headquarters. Some of the contraband seized

pursuant to a search warrant was displayed on a table in

the room. The suspect was given a copy of the warrant

containing the inventory of property seized pursuant to the

warrant and told that that was what was recovered from his

house during the raid. “Thereupon, he looked at the

display on the table for a couple of seconds, sat down on

a chair and ‘made an [incriminating]’ outburst.” Jd. at

373.

The Court of Appeals concluded that Vines had not

been interrogated. Noting that the officers gave Vines a

37a

copy of the warrant pursuant to the Maryland Rules, the

Court stated, |

We fail to see how, in the circumstances, a

confrontation with some of the physical

evidence listed in the inventory changed the

conduct of the police to an “interrogation.”

Id. at 378.

Although, as both appellant and appellee note,

Vines was decided before Innis, we do not believe that

Innis would compel a different result.

In State v. Conover, 312 Md. 33 (1988), the

defendant was given Miranda wamings after his arrest.

He stated that he understood his rights and that he wanted

to have an attorney. The detectives resumed processing

the defendant. One of the detectives read him the

Statement of Charges and handed him the Statement along

with the Application. He suggested that the defendant

“read them, look at them, if you have any questions ask

them.” Jd. at 37. The defendant asked hypothetical

questions, but also stated, “you can’t put me with that .38.”

Id. at 37. The Court of Appeals held that the detectives

had not interrogated the defendant within the meaning of

Miranda. The Court noted that the officers were required

to give the defendant a copy of the Charging Document.

It inferred no “sinister motive” from the fact that the

defendant was also given a copy of the Statement of

Charges. Jd. at 42.

In Williams v. State, 342 Md. 724 (1996), the

defendant had invoked his right to remain silent and

indicated that he wanted an attorney. The investigating

officers then gathered their papers and one of the officers

told Williams to remove his earring. Williams mumbled,

38a

“you can’t get me. I’ll just say a girl gave me the card.”

Id. at 759. After that statement, one of the detectives

“commented that ‘[t]his is going to work’ and reiterated to

Williams that he was being charged [with a double

murder].” Jd. at 759. At that point, Williams said, “I

know I’m never getting out.” 342 Md. at 759. Williams

moved to suppress the statements, but his motion was

denied. The Court of Appeals saw no error in the trial

court’s finding that those comments were not reasonably

likely to elicit an incriminating response.” The Court

noted the comment of the Fourth Circuit Court of Appeals

in United States v. Payne, 954 F.2d 199, 202 (4th Cir.

1992), that, “the Jnnis definition of interrogation is not so

broad as to capture within Miranda’s reach all declaratory

statements by police officers concerning the nature of the

charges against the suspect and the evidence relating to

those charges.” Williams at 761.

2

In Williams, prior to being given Miranda

warnings, the defendant had asked the detectives why he

was being detained. The detectives told him that he was

under arrest for a double murder. One of the detectives

showed Williams a photograph portraying Williams using

the ATM card of one of the victims. Williams stated,

“Tyjeah, that’s me.” 342 Md. at 759. The trial court

suppressed this statement because Williams had not been

given Miranda warnings. The Court of Appeals noted that

“[t]he question of whether the trial judge was correct in

suppressing Williams’s first statement to the police, made

before the Miranda warning, is not before us on this

appeal.” Jd. at 760, n. 11.

39a

Other courts have held that confronting a suspect

with the evidence against him is not “the functional

equivalent of interrogation.” In United States v. Payne,

supra, for example, an FBI agent traveling with Payne

received a cellular telephone call during a car ride from

Hyattsville to Baltimore. Afterward, the agent told Payne,

“They found a gun at your house.” 954 F.2d at 201.

Payne responded, “I just had it for my protection.” Jd. at

201. The Fourth Circuit Court of Appeals held that the

agent’s statement to Payne did not constitute interrogation.

It noted the pronouncement of the United States Supreme

Court in Arizona v. Roberson, 486 U.S. 675, 687 (1988)

that “[the police] are free to inform the suspect of the facts

of the second investigation as long as such communication

does not constitute interrogation,” extrapolating therefrom

that “mere declaratory descriptions of incriminating

evidence do not invariably constitute interrogation for

Miranda purposes.” Payne, 954 F.2d at 202. See also

Shedelbower v. Estelle, 885 F.2d 590 (9th Cir. 1983)

(telling suspect that his accomplice had been arrested and

that the victim had identified his photograph did not

constitute interrogation); Lewis v. Florida, 509 So. 2d

1236 (Fla. App. 1987) (showing video of robbery to

suspect did not constitute interrogation). But see, €.g.,

United States v. Walker, 624 F. Supp. 103 (D. Md. 1985)

(showing an espionage suspect who had invoked his right

to counsel incriminating documents constituted

interrogation).

In the present case, we do not believe that Corporal

Whaley’s statement that he was going to have the tire iron

and bag fingerprinted was the functional equivalent of

40a

interrogation.? The comment was brief and was made

shortly after appellant was taken to police headquarters.

We do not read the comment as being particularly

“evocative.” See Innis, 446 U.S. at 303. Appellant was

not subjected to compelling influences, psychological

ploys or direct questioning. See Mauro, 481 U.S. at 529.

We do not believe that the statement was reasonably likely

to elicit an incriminating response from appellant.

Accordingly, the trial court did not err in denying

appellant’s motion to suppress.

> In the present case, unlike Jnnis and the other

cases cited, appellant had not yet been “Mirandized” when

he made the statements that are the subject of this appeal.

In United States v. Taylor, 985 F.2d 3, 7, n. 4 (1st Cir.

1993), the Court stated:

Although the basic test for custodial

“interrogation” does not differ in the

pre-Miranda context, courts should be

particularly alert to the presence of subtle

declarations and conduct by the police, such

as those challenged in Jnnis, because an

unwarned defendant may be less alert to her

rights or to the risks of “volunteered or

spontaneous” admissions.

Nonetheless, this does not change our analysis of the facts

presented here.

4la

Il

At the end of the State’s case, appellant moved for

a judgment of acquittal. The basis of that motion was that

Kirby was “a possible un-indicted co-defendant” whose

testimony was uncorroborated. He further argued that

there was nothing other than Kirby’s testimony that

appellant admitted breaking into the market that supported

the burglary count and theft and that the evidence was

insufficient for that reason.

In this appeal, appellant repeats his contention that

the evidence was insufficient to sustain his convictions.

He states that “[a] conviction resting on circumstantial.

evidence alone, however, cannot be sustained on proof

amounting only to strong suspicion or mere probability.”

He contends that Kirby’s testimony and statement to

Corporal Whaley are “far too suspect to support a finding

of guilt beyond a reasonable doubt.” In support of that

argument, appellant points out that Kirby initially testified

at trial that he did not talk to appellant about the break-in.

He further argues that Kirby testified that he was a friend

of Whaley’s and that Kirby wrote the statement after being

told he could be charged as an accessory.

The State first contends that the question is not

preserved for our review. It states that the only ground

given for the motion by the defense at trial was that

Kirby’s testimony required corroboration; therefore,

appellant’s present contention - that Kirby’s testimony was

not credible - is unpreserved.

In a criminal action, where a jury is the trier of fact,

appellate review of a claim of sufficiency of the evidence

is available only where the defendant moves for judgment

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of acquittal at the close of all the evidence and argues

precisely the ways in which the evidence is lacking. Md.

(1991). A defendant may not argue in the trial court that

the evidence was insufficient for one reason, then urge a

different reason for the insufficiency on appeal in

challenging the denial of a motion for judgment of

acquittal. Bates v. State, 127 Md. App. 678, 691 (1999).

See also Graham v. State, 325 Md. at 417. In the present

case, however, we believe that appellant’s argument in the

trial court included the assertion that Kirby’s testimony

was not credible. Accordingly we will consider the merits

of appellant’s complaint.

The standard for our review of the sufficiency of

the evidence is whether, after reviewing the evidence in

the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia,

443 U.S. 307 (1979); Bloodsworth v. State, 307 Md. 164,

167 (1986). Weighing the credibility of witnesses and

resolving any conflicts in the evidence are tasks proper for

the fact finder. Bryant v. State, 49 Md. App. 272, 283-84

(1981).

Although Kirby did, at first, deny that he had talked

to appellant and Renke about the items taken from the

Hillside Market, after viewing his statement of July 15th,

he testified that his memory was refreshed. He then

testified that when he arrived home, he saw “girlie

magazines,” cigarettes, and lotto tickets. He further

testified that he did not recall many of the events of that

morning, but that the statement accurately reflected his

knowledge at the time it was made. The jury was apprised

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that appellant and Renke were Kirby’s friends. The jury

was also apprised that Kirby had been friends with

Corporal Whaley and that Corporal Whaley told Kirby that

he could be charged as an accessory in the burglary. The

jury was, nonetheless, entitled to believe Kirby’s

testimony and it obviously did. The evidence was

sufficient to permit a rational trier of fact to find beyond a

reasonable doubt that appellant was the individual who

burglarized the Hillside Market and stole the missing

items.

JUDGMENT AFFIRMED.

COSTS TO BE PAID BY

APPELLANT.

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APPENDIX C

Unreported proceedings and ruling of November 26, 1996

in the Circuit Court for Queen Anne’s County, Maryland,

The Honorable John W. Sause, Jr., State of Maryland v.

Dwayne Anthony Drury, Criminal No. 4709.

*RHKHX KK *

MR. GREGORY: Good afternoon, Your Honor.

THE COURT: Mr. Richardson.

MR. GREGORY: State of Maryland versus

Dwayne Anthony Drury, 4709. This is a motion to

suppress, and this is probably one of those omnibus things,

and what is it that is relevant at this time, sir?

MR. RICHARDSON: Your Honor, I filed a motion

to suppress, and it said physical evidence, but, when I

received the State’s answer to discovery, I realized there

were some statements, as well, which I would like to

address.

THE COURT: I don’t think Mr. Gregory has any

objection.

MR. GREGORY: I just would like for the

defendant to admit that he has standing at least for the

physical --

THE COURT: What? |

MR. GREGORY: That he has standing to object to

the physical evidence.

THE COURT: Does he have standing?

MR. RICHARDSON: Your Honor, I believe

looking through the file, the apartment that the physical

evidence was taken from was at 100 East Water Street and

that wasn’t my client’s rented or leased apartment, so, I

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don’t believe that there would be standing under the law

actually, on further investigation.

THE COURT: Allright. Mr. Drury, you understand

that, don’t you?

THE DEFENDANT: Yes, sir.

THE COURT: I mean, for instance, if somebody

came in and illegally searched my house, you wouldn’t

have any right to complain about that, that would be my

complaint, not yours; do you understand that?

THE DEFENDANT: Yes, sir.

THE COURT: Do you have any questions?

THE DEFENDANT: No, sir.

THE COURT: Let’s go ahead with the statements.

You may have a seat.

MR. GREGORY: I’d call Officer Whaley.

CORPORAL MARC E. WHALEY,

being first duly sworn to tell the truth, the whole truth, and

nothing but the truth, testified as follows:

DIRECT EXAMINATION

BY MR. GREGORY:

Q. Officer Whaley, please state your name and duty

assignment.

A. Corporal Marc Whaley, Centreville Police

Department, Queen Anne’s County, Maryland.

Q. I draw your attention to July the 15th and ask if

you -- of this year, I’m sorry, and ask if you had occasion

on that date to begin the investigation of the break-in and

theft at the Hillside Market located in Centreville?

A. It was on the 14th, sir.

Q. I’m sorry, the 14th. What if anything did you do

in furtherance of that investigation?

A. I responded to Hillside Market with reference to

a burglary report. Met with the complainant who advised

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me that upon his opening the establishment he found a tire

iron behind the counter near the cash register near the

main counter. Further investigation revealed that several

adult magazines had been taken, several cartons of

cigarettes had been taken, bottles of liquor were missing,

and numerous Maryland Instant Scratch-Off tickets were

missing.

Q. As a result of receiving that information, what if

anything did you do?

A. Began to search for a possible area where the

individuals gained entry, at which time the rear door of the

building was found to have been pried open and it

appeared the tire iron was possibly used to gain that entry.

Q. Did you begin a look-out for a possible culprit

in this matter?

A. I’m sorry, I didn’t hear you.

Q. Did you do anything further, look for any

possible culprits?

A. Yes, sir, later on that evening I had the

opportunity to speak with Deputy George Sewell at the

Queen Anne’s County Sheriffs Department. In

explaining the case I was working on Deputy Sewell

proceeded to advise me two individuals that he saw on the

corner of Commerce and Water Street acting in a

suspicious manner. I took that information that Deputy

Sewell had given me and three o’clock in the morning on

the 15th I did a trash rip of some trash to be disposed of in

the alleyway, where Deputy Sewell stated that he observed

these two suspicious individuals.

Q. What do you mean by that, you went through the

trash cans in the alleyway where Deputy Sewell saw these

folks?

A. Yes, sir.

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Q. What did you find?

A. Upon opening one of the trash bags I found

several adult magazines, some of which had been opened,

some of which had the plastic wrap intact, and a King

Cobra Malt Liquor bottle.

Q. With that information what did you do?

A. I knew one individual that lived in the

apartment, who leased the apartment, at which time I

confronted him, took him to Centreville Police Department

for questioning, at which time that individual, it was Carl

Franklin Kirby, proceeded to give me a written statement

stating that he knew the two individuals that had broken

into the Hillside Market and identified the merchandise

that was taken, and stated that the merchandise was in his

apartment earlier, on the 14th, and that portions of it had

been disposed of and he did not know the whereabouts of

the remaining.

Q. After you talked with Mr. ams did you go visit

Mr. Drury?

A. Yes. I picked Mr. Drury up for questioning, at

which time I proceeded to show Mr. Drury the evidence

which was retrieved. In showing Mr. Drury the tire iron

that was retrieved from the actual incident area, Mr. Drury

said, well, my fingerprints could be on that and are on

hundreds of tire irons around Centreville, okay, and

picking up the trash bag in which the magazines were

located in, Mr. Drury proceeded to tell me the contents of

the bag prior to me even stating what was in the bag

myself.

Q. What did he tell you?

A. He said that he had touched the magazines that

were in that bag.

Q. Both the opened and the unopened magazines?

ee ee

48a

A. Yes, sir.

Q. By unopened you mean, so we’ re all on the same

wavelength, the girlie magazines with the plastic wrapper

around them?

A. Yes, sir.

Q. Did he say anything else to you?

A. No, sir. Not at that point.

Q. How about at any other point?

A. Not that I recall at the moment.

MR. GREGORY: That’s all the questions I have of

Officer Whaley.

CROSS-EXAMINATION

BY MR. RICHARDSON:

Q. Corporal Whaley, you said you questioned Mr.

Drury on July 15th?

A. Mr. Drury wasn’t actually questioned.

Q. What did you do with Mr. Drury? Did you

speak to him?

A. I brought Mr. Drury in for questioning, and upon

Q. Okay. Hold it. You took Mr. Drury and took

him to the Centreville Police Department?

A. That’s correct.

Q. Okay. So you didn’t question him on the street

or at the apartment?

A.No, sir. —

Q. And you brought him into the Centreville Police

Department and where did you talk to him then?

A. Within the department.

Q. Within the department. And did you Mirandize

Mr. Drury?

A. Yes, I did.

Q. Okay. Did he give any statements after being

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Mirandized?

A. No, he did not.

Q. These statements you say that he made, what did

you do before he made any statements? What actions did

you take with this physical evidence?

A. I was presenting the evidence that was going to

be used for the questioning.

Q. So you took the evidence out and put it in front

of Mr. Drury?

A. I put it up on the desk in front of myself.

Q. We’re talking about the tire iron you put in front

of him?

A. Yes, sir.

Q. And the magazines in the bag, the physical

evidence from this robbery?

A. Yes, sir.

Q. And did you tell Mr. Drury that you were going

to send this evidence off for fingerprints?

A. As I recall, yes, sir.

Q. You told him all that before you Mirandized

him?

A. Yes, sir.

Q. And that’s when you claim that he made some

statement about his fingerprints possibly being on these

physical items?

A. Yes, sir.

Q. And then once he was Mirandized, he didn’t

want to talk to you?

A. No, sir.

Q. Was anyone else there besides you and Mr.

Drury?

A. No, sir.

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Q. Do you know how old Mr. Drury was?

A. He was 18 or older. I’ve had acquaintance with

Mr. Drury before.

Q. You -- you don’t know his exact age?

A. No, sir, not presently, I don’t.

MR. RICHARDSON: I don’t have any other

questions, Your Honor.

MR. GREGORY: Just if I might, Your Honor.

REDIRECT EXAMINATION

BY MR. GREGORY:

Q. Your responses, I take it, to Mr. Richardson’s

questions, are that Mr. Drury made these statements to you

prior to you asking him any questions; is that right?

A. Yes, sir.

MR. GREGORY: That’s all the questions I have.

THE COURT: And you didn’t address any

questions to him at all at that point?

THE WITNESS: No, I didn’t.

THE COURT: Thank you -- was he handcuffed or

THE WITNESS: No, sir

THE COURT: Thank you.

MR. GREGORY: That’s all the witnesses I have.

MR. RICHARDSON: Basically I would like to

make a motion to suppress those statements. I think it falls

under a scenario similar to the Brewer v. Williams case,

the Supreme Court case, where interrogation refers not

only to suppressed questoning but also to any words or

actions that the police know or should know are likely to

elicit an incriminating response from a suspect.

Now, we have Corporal Whaley bringing Mr.

Drury into his police department, not questioning him at

his home, bringing him nto the police department, and

S5la

Corporal Whaley takes out this physical evidence and says

he is going to send it off for fingerprints, and he does this

all before his Miranda warnings are given. Now, he does

that with the intention of eliciting some kind of response

from Mr. Drury, a young man.

THE COURT: He didn’t state he had that intention.

MR. RICHARDSON: That’s the inference I draw

and I think it falls under the Brewer case and under the

facts of this it should be suppressed because the intention

was to get a reaction. He didn’t Mirandize him, he could

have easily done that, said these are your rights and I’m

going to show you some physical evidence, instead of

brings him in there and dumps the evidence on the table

and looks for a response, before any Miranda warnings are

given, his intentions are to circumvent Miranda.

THE COURT: Suppose he had said to him, I think

I’m going to send out and get myself a hamburger. He

didn’t have to say anything. He didn’t -- there’s no

indication that he said it in a threatening manner. Just

saying he was going to do it, he got the evidence bag and

he said he put it down on the desk or table in front of him,

meaning the officer, you asked him specifically that, and

he, your client then, according to the officer, just made

these statements. In some ways they weren’t even apropos

of anything that was said, he said he was going to send

them off. Just doesn’t seem to me that that is something

that would prompt an answer.

MR. RICHARDSON: Well, Your Honor, I think

it’s analogous to where an officer says J can get a warrant

but if you don’t want me to get a warrant, let me search

now. When you start telling him, he is in a police

department, and you tell him I’m going to send these off

for fingerprints, do you want to make any statement before

52a

I Mirandize you, that’s what the intentions are.

THE COURT: He didn’t say he asked him if he

wanted to make any statements before he Mirandized him,

did he?

MR. RICHARDSON: My argument is he is putting

the evidence here and saying I’m going to get the

fingerprints off the stuff and dumping the evidence on the

table. Brewer says not just suppressing but any actions the

police know or should know are likely to elicit --

THE COURT: I thought the officer also testified

that the defendant was there at the time he recovered the

stuff, did I misunderstand you?

THE WITNESS: I’m sorry, Your Honor.

THE COURT: That the defendant was there at the

time when he recovered the stuff?

THE WITNESS: When I went into the apartment to

retrieve the goods, he was there, yes, sir.

MR. RICHARDSON: But the questioning wasn’t

done there, the questioning was done after bringing him

back to the department, putting him in custody.

THE COURT: All right, thank you. Mr. Gregory.

MR. GREGORY: Your Honor, if it please the

court, all Officer Whaley did was put these items on the

table and before he could begin his questioning apparently

the defendant decided to make some statements, the

statements were, I guess I agree with the court about some

of the appropriateness, one is I have touched a lot of tire

irons around Centreville, that’s kind of an interesting

statemenit, and the other one is before apparently Officer

Whaley could talk about the bag the defendant starts

telling him what’s in the bag. The officer hadn’t gotten to

the point, I suggest, to the court and to Mr. Richardson,

where even the interrogation had begun yet. When he

53a

finally got to that point he Mirandized Mr. Drury and said

the defendant elected not to make any statements or

answer any questions.

THE COURT: Well, indeed, the statements were

not necessarily inculpatory, the statements were simply

that he had touched the items.

MR. GREGORY: Or could have.

THE COURT: Could have. Well, I would assume

that anybody in this courtroom could have, if they had

been in the business establishment from whence they

came. But I don’t -- I don’t know that the statements in

and of themselves -- there are several ways that you can

view this testimony, the statements of the defendant, it

seems to me. One is that he was suggesting that -- well, he

said you might find my fingerprints on those items, what’s

known as building bridges in front of you, I suspect. But

it was an election he made himself. I don’t know the

officer --

MR. GREGORY: That --

THE COURT: I’m going to deny the motion. That

the case be set for trial.

MR. RICHARDSON: Yes, Your Honor.

THE COURT: When is it?

MR. RICHARDSON: I believe it’s January 17th.

THE COURT: All right. So, we’re all set then.

Anything else we can do for government order today?

MR. GREGORY: No, sir, not in this case.

THE COURT: Are you off this afternoon?

THE WITNESS: I’m working midnight.

THE COURT: Suppose I order you to stay home

tonight, do you think your chief would --

THE WITNESS: I'd greatly appreciate it. I’m

feeling good now, thank you.

54a

THE COURT: Well, you take care. My secretary

had something like that yesterday. She fortunately went

home and just got sicker, but Ms. Peters was sick

yesterday, and at the end of the day she bounded around

better than ever. Because she took care of herself. You do

so too. Thank you.

(Witness excused.)

(Proceedings adjourned.)

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