Petition for Writ of Certiorari — Reynolds v. Maryland

‘\) | Qepmeme Court, U..

92-897 “Ee Wee

No. NOV 23 1992

OGSICE OF THE Clarina

Supreme Court of the Hnited States

+

October Term, 1992

FREDERICK WILLIAM REYNOLDS, JR.,

Petitioner,

VS.

STATE OF MARYLAND,

Respondent.

Petition for a Writ of Certiorari to the Court of Appeals of

Maryland

PETITION FOR A WRIT OF CERTIORARI

STEPHEN P. BOUREXIS

Counsel of Record

JUDITH S. STAINBROOK

Attorneys for Petitioner

235 East Main Street

Westminster, Maryland 21157

(410) 876-6050

2938

We late (800) 3 APPEAL * (800) 5 APPEAL. » (800) BRIEF 21

QUESTIONS PRESENTED

1. A prosecutor advised the petitioner to seek counseling,

knowing that any incriminating information the petitioner gave the

counselor would be turned over to the police. Was the petitioner’s

subsequent confession to the police as part of the therapeutic

process involuntary under the Fourteenth Amendment?

2. Did an unwarned interrogation by police at the petitioner’s

home for the purpose of obtaining a corroborating confession

violate the petitioner’s Fifth Amendment rights? If it did not, was

his confession nevertheless involuntary under the Fourteenth

Amendment?

il

TABLE OF CONTENTS

Page

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Opies BOW 2.0 ii eeicdiani eee |

statement Of JuriedictiOm 2. ssi csncicgccvenwaneuass 2

Constitutional Provisions Involved .................-. 2

Statement of the Caee ..3 oo. cccavcd cee aeeeeee ns I

How the Federal Question Was Presented .......... 7

Reasons for Granting the Writ ......ceccsccevseseses 9

I. The prosecutor failed to warn petitioner

adequately once she advised him to seek

| ME er ea 9

II. A. The petitioner should have been given a

Miranda warning before the interrogation at his

ROW. .. 2056 u'd eck ese eee ee 12

B. The petitioner’s second confession was

involuntary under the Fourteenth Amendment.

OPUUUSET TT rr Me Pee 15

ili

Contents

Page

TABLE OF CITATIONS

Cases Cited:

Beckwith v. United States, 425 U.S. 341, 96S. Ct. 1612, 48 L.

BA DAL CISTG) cnn ccccccccsccscccescccccceses 10, 13, 14

Berkemer v. McCarty, 468 U.S. 420, 102 S. Ct. 3138, 82 L.

Pe ETERS) wcccccccnosccessccesseses 12, 13, 14, 15

Bryant v. State, 49 Md. App. 272, 431 A.2d 714 (1981)

ee avec ecve ses 17

Chambers v. Florida, 309 U.S.227 .......------eeeee- 17

Colorado v. Spring, 479 U.S. 564, 10S. Ct. 851, 93 L. Ed. 2d

rT rer eee eee eee ee 10, 11, 16

Lynum v. Illinois, 372 U.S. 564, 83 S.Ct. 917,9L. Ed. 2d 922

DEER RL Weta be waksccsasnsrecestoresausonens 11

Mathis v. United States, 391 U.S. 1, 88 S. Ct. 1503, 20 L. Ed.

PEEL CIBER) nna cnn cscs ccesesencsncceseseces 14

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed.

CE a cache wd swaccseces 5,8, 10, 12, 13, 14, 15, 16, 17

New York v. Quarles, 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed.

RENE 4g papas sccccencccscissewasecsneves 14

iv

Contents

Page

Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d

ED san can tes ed OE be ea eS aoe a 16

Oregon v. Mathiason, 429 U.S. 477, 97 S. Ct. 711, 50 L. Ed.

TOE wide tk ckchkcuacsssdaee cece 12

Orozco v. Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d

Be Shei 4 née a ced aan Cee seas metres 13,14

Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L.

RE EE AS be Ss cae deeeweee bs hcxcdlnia 14

Spano v. New York, 360 U.S. 315, 79S. Ct. 1202, 3 L. Ed. 2d

ED evepén 6c eKend so eaewes cide 11

United States v. Mandujano, 425 U.S. 564, 96S. Ct. 1768, 48

IE 6500 babes caeeeeeee oa euet ae 10

Statutes Cited:

Se SEE 54 eK CaCO N hee ee Rew awere ka 2

Md. Code Ann. Family Law § 5-704(a)(1)(i) .......... 4

United States Constitution Cited:

Vv

Contents

Page

Rule Cited:

Maryland Rule of Professional Conduct 3.8: Special

Responsibilities of a Prosecutor and the ABA Standards of

Criminal Justice Relating to Prosecution Function

mk cen habe cy DUUADERERADONEETENES CESdS SERN SS 11

APPENDIX

Appendix A— Opinion of the Court of Appeals of Maryland

Filed August 24,1992 ........--e eee eee eee eeees la

Appendix B — Opinion of the Court of Special Appeals of

Maryland Filed August 29,1991 ........-+-++++++: 22a

Appendix C — Opinion of the Circuit Court for Carroll

County, Maryland, February 27,1990 ..........--- 49a

No.

In the

Supreme Court of the United States

oe.

October Term, 1992

FREDERICK WILLIAM REYNOLDS, JR..,

Petitioner,

VS.

STATE OF MARYLAND,

Respondent.

Petition for a Writ of Certiorari to the Court of Appeals of

Maryland

PETITION FORA WRIT OF CERTIORARI

The petitioner Frederick William Reynolds, Jr., respectfully

prays that a writ of certiorari issue to review the judgment and

opinion of the Court of Appeals of Maryland, entered in the above-

entitled proceeding on August 24, 1992.

OPINIONS BELOW

The opinion of the Court of Appeals of Maryland is reported at

327 Md. 486, 610 A.2d 782 (1992) and is reprinted in the appendix

hereto, p. la, infra.

The opinion of the Court of Special Appeals of Maryland is

reported at 88 Md. App. 197, 594 A.2d 609 (1991) and is reprinted

in the appendix hereto, p. 22a, infra.

The bench opinion of the Circuit Court for Carroll County,

Maryland is reprinted in the appendix hereto, p. 49a, infra.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals of Maryland was

entered August 24, 1992, affirming the decision of the Court of

Special Appeals of Maryland entered August 29, 1991 which had

in turn affirmed petitioner’s conviction by the Circuit Court for

Carroll County, Maryland on June 5, 1990.

The jurisdiction of this Court is invoked under 28 U.S.C. §

1257.

CONSTITUTIONAL PROVISIONS INVOLVED

United States Constitution, Amendment V:

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on

a presentment or indictment of a Grand Jury,

except in cases arising in the land or naval

forces, or in the Militia, when in actual service

in time of War or public danger; nor shall any

person be subject for the same offense to be

twice put in jeopardy of life or limb; nor shall

be compelled in any criminal case to be a

witness against himself, nor be deprived of life,

liberty, or property, without due process of law;

nor shall private property be taken for public

use without just compensation.

eee

United States Constitution, Amendment XIV, Section 1:

All persons born or naturalized in the

United States, and subject to the jurisdiction

thereof, are citizens of the United States and of

the State wherein they reside. No State shall

make or enforce any law which shall abridge

the privileges or immunities of citizens of the

United States; nor shall any State deprive any

person of life, liberty, or property, without due

process of law; nor deny to any person within

its jurisdiction the equal protection of the laws.

STATEMENT OF THE CASE

The petitioner, Frederick William Reynolds, Jr., a farmer with

a twelfth grade education, went to the Family Children’s Service

Center, in Carroll County, Maryland to receive counseling. He had

been referred there by his minister from whom he had previously

received counseling after two of Reynolds’ adult daughters told the

rest of the family that Reynolds had sexually abused them during

their childhood. There was no evidence that this behavior had been

repeated for the past twelve years.

When Reynolds arrived at the Family Children’s Service

Center, he was asked to sign a waiver form that stated that any

information he disclosed during treatment might be turned over to

the police. The counselor explained that it was important for

Reynolds to be very honest with his therapists in order for them to

help him (R. M-80). Reynolds was also told that if he did not sign

the waiver, he could not receive counseling (R. M-101; M-102-

103).'

1. A Maryland statute provides, in pertinent part, that:

(Cont'd)

Reynolds was worried about signing the waiver form, but

“desperate” for counseling (R. M-100). He therefore telephoned a

prosecutor at the local State’s Attorney’s Office, the same

prosecutor who subsequently prosecuted him in his criminal trial.

He explained to her that his counselor wanted him to sign a waiver

form as a condition of counseling but that he did not want to be

prosecuted, and he asked her what he should do. She told him,

“Well, you should go and take your counseling right now, that’s the

first thing. It’s been a long time since this occurred, but I cannot

give you advice because .. . I’m a prosecutor, I prosecute these

types of cases” (R. M-81).

Following this conversation, Reynolds returned to the Family

Children’s Service Center and signed the waiver form.

After Reynolds signed the waiver and began participating in

counseling sessions, Marcia Meyer, the counselor, called him and

told him that the police wanted to see him, Ms. Meyers asked

Reynolds where it would be most convenient for him to meet with

the police and he said he would meet with them in Marcia Meyer’s

office.

Trooper Norman testified that “I was just there trying to find

(Cont'd)

Notwithstanding any other provisions of law, including

any law on privileged communications, each health

practitioner, police officer, or educator or human service

worker, acting in a professional capacity, who has reason

to believe that a child has been subjected to abuse, shall

notify the local department or appropriate law

enforcement agency.

Md. Code Ann. Family Law § 5-704(a)(1)(i).

SSS |

out, you know, about an investigation on a child abuse. That’s why

I was sent there,” and that he “was there to ask Mr. Reynolds why

he had made the statements or what statements he had made to

Family Children’s Service Center and — why he was making the

statements 'cause, at that point, I didn’t have a victim; I didn’t even

know the daughters’ names.” (R. M-61). Trooper Norman later

testified that when Reynolds told Marcia Meyer he had abused his

daughters, she contacted the State’s Attorney’s Office who in turn

contacted the State Police (R. M-58).

Norman identified himself to Reynolds as a Maryland State

Policeman and, when he asked Reynolds if Reynolds knew why he

was there, Reynolds said that he had made some statements to Ms.

Meyer, and when Norman asked if Reynolds could tell him the

same things, Reynolds said that “whatever I tell you is going to

incriminate me. . . *cause I’m considered an abuser.” (R. M-60).

Reynolds testified (R. M-91) and the trial court found, that

Reynolds had “jokingly or at least lightly” (p. 50a) asked Norman

to read him his Miranda rights, which Norman did.

Reynolds then told Norman that he was an abuser because he

had touched all his daughters when they were young but that

nothing had occurred in twelve years. Reynolds also said that he

could not remember many of the incidents but he told Norman the

full names of all his daughters and where Norman could contact

them (R. M-23-24). Reynolds testified that he had “blacked” out

most of the things his family said had happened but that Marcia

Meyer had told him that he had to be honest with everyone and that

he could not get counseling unless he was honest (R. M-83).

Following the session in Marcia Meyer's office, Trooper

Norman interviewed two of Reynold’s daughters.

On September 6, 1989, the Trooper came to Reynolds’ farm

6

to interview him there, saying that he wanted Reynolds to try to

remember the events as closely as he could, because “it’s for

Crystal’s good because if you can’t remember them, she doesn’t

think anybody believes her that it didn’t happen and so I was to try

to remember because I would really be helping my daughter, that

— she needed that for her own mental health.” (R. M-85).

The ensuing interview was taped. Norman said, “You're not

under arrest. . . (s)ame situation down in — in Ms. Meyer’s office.

All I want to do is just get some information from you, hear your

side of the story again and, you know, you don’t have to talk to me.

If you want me to leave, I'll leave, you know.” Reynolds asked,

“Why do you want to hear it again? So you can record it, is that it?”

(R. SP-1).

Norman said that he had spoken with Crystal and Vivian, the

two daughters, and that Crystal had told him a lot of things and

Norman wanted to find out “if you have remembered anything

more that happened between you and Crystal.” (R. SP-3).

Norman then led Reynolds into a discussion of various

explicit sexual acts occurring between him and Crystal (R. SP-1-44

generally).

At one point, Reynolds asked, “Well, why do you need those

times?” and Norman replied “Because I’m trying to verify what

she’s telling me.” Reynolds replied “But, you’re not arresting me.

Why do you need to know every little detail?” and Norman

responded that “it’s important for her to understand, you know, and

that — that I can —I can say, yes, you know, I talked to your dad

and — and he’s saying that everything that happened... .” (R. SP-

8).

Again, the Trooper questioned Reynolds about a number of

specific sexual acts, referring on several occasions to Ms. Meyer,

eS |

7

saying that “they — they kinda want you to remember this stuff,

right, cause you can deal with it?” (R. SP-22). Trooper Norman

later testified that Reynolds said he couldn’t remember things, that

he was blocking out his memory and that, from the Trooper’s

“understanding in counseling, you can’t be helped unless you do

remember what you’ re being helped for.” (R. M-68).

At no time during this second interview did Trooper Norman

advise Reynolds that he had the right to remain silent, that anything

he said could be used against him in a criminal proceeding, and that

he had the right to an attorney.

Two days later, September 8, Trooper Norman returned to

Reynolds’ home and arrested him. He read him his rights in the car

on the way to the barracks.

After his arrest, Norman said to Reynolds, “ ‘You must think

you're awfully smart. . . all this counseling that youve been going

to. . .you haven’t incriminated yourself at all in this counseling.’ ”

Reynolds replied, “ ‘I’m going to counseling to get help for what I

did wrong. What do you mean, incriminating myself?’ And,

evidently, everything I was saying’ they was turning it over to the

police and I had no —I didn’t understand that at all” (R. M-87).

Reynolds was subsequently charged with Second Degree

Rape, Second Degree Sexual Offense, Assault with Intent to Rape,

Assault with Intent —- Sexual Offense, Child Abuse, Third Degree

Sexual Offense and Incest.

How the Federal Question Was Presented

The petitioner moved to suppress all incriminating statements

he had made to the police before his formal arrest as well as the tape

of his confession on Fifth and Fourteexth Amendment grounds

(and also on state grounds). (Defendant's Motion to Suppress:

8

“That all admissions, statements, or confessions of the defendant

be suppressed because they were obtained unlawfully,

involuntarily, forcibly and in violation of the defendant’s

Constitutional and other legal rights.” The trial court denied the

motion and, following a trial by jury, petitioner was found guilty of

Second Degree Rape, Second Degree Sexual Offense, Assault with

Intent to Rape, Assault with Intent to Commit Second Degree Sex

Offense, and Incest and was sentenced to serve fifty years on the

various counts.

An appeal was taken to the Court of Special Appeals of

Maryland, which affirmed the Circuit Court’s denial of petitioner’s

Motion to Suppress. The Court of Special Appeals held that the

petitioner’s confessions were voluntary under the due process

clause (pp. 45a-46a) and that the warnings prescribed in Miranda v.

Arizona, infra, did not apply to petitioner’s second confession in

his home because he was not undergoing custodial interrogation

(pp. 41a-45a).

The Court of Appeals of Maryland then granted Reynold’s

Petition for Certiorari and affirmed the decision of the Court of

Special Appeals, adopting the argument of the Court of Special

Appeals that Miranda warnings were unnecessary because there

was no custodial interrogation (p. 19a), and holding the Reynolds’

confessions were voluntary on both state voluntariness and federal

due process grounds (p. 18a).

REASONS FOR GRANTING THE WRIT

I.

THE PROSECUTOR FAILED TO WARN

PETITIONER ADEQUATELY ONCE SHE ADVISED HIM

TO SEEK COUNSELING.

Reynold’s initial contact with the State occurred when he

telephoned the State’s Attorney’s office for advice as to whether he

should sign the mandatory waiver form in order to obtain

counseling. He did not need to confess (contrary to the Court of

Special Appeal’s statement at p. 26a that “he needed to confess and

he wanted to confess”); he needed counseling. In order to get the

counseling he needed, he had been told that any information he

gave the therapist would be turned over to the police and, because

he did not want to be prosecuted, he needed legal advice.”

Knowing that Reynolds was trapped between fear of

prosecution on the one hand and a desperate need for counseling

on the other, the prosecutor gave him the ultimately fatal advice

that “(W)ell, you should go and take your counseling right now,

2. “So she (the therapist) told me that I had to go to the — sign a thing that

if I did anything illegal they might turn it over to the police, and I asked her about

that. Well, she said you can’t take counseling here unless you sign this because I

cannot do it with you. So, that worried me, so I called this young lady, who’s

sitting right here (indicating the prosecutor), up on the phone, then... and I

asked her for advice . . . so asked Kathi what I should do and she said, well you

should go and take your counseling right now, that’s the first thing. It’s been a

long time since this occurred, but I cannot give you advice because if — I — it

may, in the future, — I’m — I’m a prosecutor, I prosecute these types of cases

and .. . so went back and — and I signed the papers and we started going to

counseling and we started going to the meetings and then Marcia Meyer (the

therapist) called me on the phone and told me that the police would like to have

an appointment with me.” (R. M-80-82).

10

that’s the first thing.” (R. M-81).

Having elected to speak with Reynolds, and having elected to

advise him to seek counseling, due process requires that, at a

minimum, the prosecutor inform him that he should consult with

his own attorney.

Under the totality of the circumstances, the absence of any

warning, by the prosecutor, least of all a full Miranda warning, is

critical to a determination of whether Reynolds’ ensuing (and,

once he signed the waiver form, inevitable) confession to the

police was voluntary. [See, e.g., Beckwith v. United States, 425

U.S. 341, 347, 96 S. Ct. 1612, 1616, 48 L. Ed. 2d 1 (1976) and

United States v. Mandujano, 425 U.S. 564, 96S. Ct. 1768, 48 L. Ed.

2d 212 (1976); in neither instance did the Court hold that no

warnings at all need be given; it simply held that the partial

warnings that were given were appropriate to the situation since

the petitioners had not been subjected to “custodial

interrogation” ].°

While this Court has allowed some police deception in

obtaining confessions, it has never given blanket authority to the

police to employ whatever deception they may deem necessary in

order to secure unwarned confessions. If this were so, the efficacy

of the due process protections developed over the years would be

cancelled. For example, this Court, in Colorado v. Spring, 479 U.S.

3. The record reflects that the trooper, at Reynolds’ own request, did read

Reynolds his Miranda rights. It cannot be seriously contended that this was a

“real” Miranda warning. The words were read, but the atmosphere was joking (p.

50a). Under the circumstances of this case, the police officer’s reading of

Miranda did absolutely nothing to cure the prosecutor’s advice to seek

counseling. Indeed, it may have underscored Reynolds’ belief that if the police

had evidence he had sexually abused his daughters they could force him to

continue counseling by holding the threat of jail over his head (R. M-82-84).

tw

1]

564, 10S. Ct. 851,93 L. Ed. 2d 954 (1987), noted that “(i)n certain

circumstances, the Court has found affirmative misrepresentations

by police sufficient to invalidate a suspect’s waiver of the Fifth

Amendment privilege,” citing Lynum v. Illinois, 372 U.S. 564, 83

S.Ct. 917, 9 L. Ed. 2d 922 (1963) and Spano v. New York, 360 U.S.

315, 79S. Ct. 1202, 3 L. Ed. 2d 1265 (1959) (misrepresentation by

suspect’s police officer friend that the officer would lose his job if

the suspect did not cooperate rendered the admission involuntary).

Itis also significant that the confession in the therapist’s office

was induced by the prosecutor who is held to a different standard

from the police [see, e.g., Maryland Rule of Professional Conduct

3.8: Special Responsibilities of a Prosecutor and the ABA

Standards of Criminal Justice Relating to Prosecution Function].

Reynolds did not call the police to pose his dilemma; he called the

State’s attorney.

The Court of Appeals stated that although the prosecutor “may

have induced Reynolds to speak to the counselors; in no way did

she attempt to induce him to speak to the police” (at p. 18a). The

point is that the prosecutor knew when she induced Reynolds to

speak to the counselor that the police would become involved. This

is why Reynolds called the prosecutor, not to discover whether the

police would be involved, but whether this involvement would

result in prosecution.

The involvement of the prosecutor and the police in the

therapcutic process was very real in this case, and this Court should

grant certiorari in order to determine to what extent the State and

health professionais may join forces to extract incriminating

information from patients.

12

Il.

A. THE PETITIONER SHOULD HAVE BEEN GIVEN

A MIRANDA WARNING BEFORE THE

INTERROGATION AT HIS HOME.

In affirming the decision of the Court of Special Appeals, the

Court of Appeals simply adopted that court’s reasoning that the

warnings prescribed in Miranda v. Arizona, 384 U.S. 436, 86S. Ct.

1602, 16 L. Ed. 682 (1966) were unnecessary when applied to the

second, taped confession taking place at Reynold’s home.

The Court of Special Appeals held that Miranda warnings

were unnecessary because Reynolds was not in custody.

The possibility that police might circumvent the necessity of

giving Miranda warnings was foreseen by Justice Marshall in his

dissent to Oregon v. Mathiason, 429 U.S. 477, 499, 97 S. Ct. 711,

716, 50 L. Ed. 2d 701 (1977) where he noted (at fn. 5), “I trust

today’s decision does not suggest that police officers can

circumvent Miranda by deliberately postponing the official

‘arrest’ and the giving of Miranda until the necessary

incriminating statements have been obtained.”

In Berkemer v. McCarty, 468 U.S. 420, 442, 102 S. Ct. 3138,

3151, 82 L. Ed. 2d 317 (1984), this Court did confront that issue.

Holding that a “policeman’s unarticulated plan has no bearing on

the question whether a suspect was ‘in custody’ at a particular

time; the only relevant inquiry is how a reasonable man in the

suspect’s position would have understood his situation,” the Court

also noted, at 468 U.S. 440, 104 S. Ct. 3150, that “the safeguards

prescribed by Miranda become applicable as soon as a suspect’s

freedom of action is curtailed to ‘a degree associated with formal

arrest.’ ” The Court admitted that “our adherence to the doctrine

just recounted will mean the police and lower courts will continue

13

occasionally to have difficulty deciding exactly when a suspect has

been taken into custody. Either a rule that Miranda applies to all

traffic stops or a rule that a suspect need not be advised of his

rights until formally placed under arrest (emphasis added) would

provide a clearer, more easily administered line. . . (E)ach of these

two alternatives has drawbacks that make it unacceptable. The first

would substantially impede enforcement of the Nation’s traffic

laws ... (t)he second would enable police to circumvent the

constraints on custodial interrogation established by Miranda.”

Neither the intermediate appellate court nor the Court of

Appeals addressed the issue of the police officer’s deliberate delay

for the purpose of extracting a confession from Reynolds and

neither court even agrees that this is an issue in the case. Not only

does this conflict with this Court’s holding in Berkemer, it is an

issue which this Court needs to squarely address in the context of

what is clearly a lengthy interrogation of a suspect on whom the

police had already obtained more than enough information to

justify an arrest, but from whom they wanted to obtain a

corroborating confession.

Miranda did not put the straitjacket of “custodial

interrogation” on itself since the Court expressly dealt with “the

protection which must be given to the privilege against self-

incrimination when the individual is first subjected to police

interrogation while at the station or otherwise deprived of his

freedom in any significant way,” at 384 U.S. 477, 86S. Ct. 1629.

Subsequent Supreme Court opinions effectively narrowed

Miranda to a holding of custodial interrogation while at the police

station. When this proved to be inadequate in some situations,

other settings were found as coercive, as was the case in Orozco v.

Texas, 394 U.S. 324, 89 S. Ct. 1095, 22 L.Ed. 2d 311 (1969)

(interrogation at suspect’s home, Miranda warning required) and

Beckwith v. United States, supra (interrogation at suspect’s home,

14

Miranda warning not required, but partial warning given).*

However, these environmental extensions did not deal with

instances where the police deliberately delayed making an arrest in

order to avoid Miranda, as Justice Marshall had foreseen in

Mathiason and as the Berkemer majority expressly recognized.

It is apparent that a reasonable person in Reynolds’ position

would have felt that his freedom was curtailed in a significant way

during his second “interview” with Trooper Norman, and that at

those times when Reynolds did express this feeling, the trooper

deceptively reassured him.

Reynolds initially asked why the trooper was at his house and

why he needed more information. The trooper replied evasively

and, instead of answering, led Reynolds into a discussion of sex

with Crystal (R. SP-1-3).

Later, Reynolds told the trooper, “You’re not arresting me,

why do you need every little detail?” and the trooper replied that it

was important for his daughter to understand that her father had

confirmed everything that she had told the trooper (R. SP-7-8). The

trooper again reassured Reynolds that he was not under arrest by

telling him that “you know, you could have been arrested for this

fifteen years ago,” (R. SP-36) with the clear inference that he won’t

be arrested now.

4. In New York v. Quarles, 467 U.S. 649, 654, 104 S. Ct. 2626, 2630, 81 L.

Ed. 2d 550 (fn. 4) (1984), Justice Rehnquist, writing for the majority, noted that

“Miranda on its facts applies to station house questioning, but we have not so

limited it in our subsequent cases, often over strong dissent,” citing, in addition

to Orozco, supra, Rhode Island v. Innis, 446 U.S. 291, 100S. Ct. 1682, 64 L. Ed.

2d 297 (1980) (police car), and Mathis v. United States, 391 U.S. 1, 88 S. Ct.

1503, 20 L. Ed. 2d 381 (1968). However, cases such as Beckwith, supra,

certainly suggest that Miranda often was so limited, until the effects of that

limitation became painfully obvious.

15

As Reynolds later testified, “. . .(H)e kept asking me so many

things. I-I beginning to wonder, is he trying — does he want to

arrest me or something? Why would he need to know all this just

for Crystal and — and it scared me then, but I continued to go on

because J felt that I had to be honest with the people. I wanted to get

help and — and my counselor, who already told me that I needed —

I needed to be very honest, I had to be honest with everybody, I

could not get counseling unless I was honest.” (R. M-86).

The only reason why there was no need to arrest Reynolds on

September 6 (the second interrogation) is that the trooper knew

Reynolds was not going anywhere. Had the trooper arrived and

found Reynolds packing his bags, it is inconceivable that he would

not have been arrested immediately. He only wanted to obtain a

taped confession, and he delayed Reynolds’ arrest in order to do so

without having to give him a Miranda warning.

Furthermore, the place where the interrogation occurred,

Reynolds’ farmhouse, as the place where the sexual abuse also

occurred, was the most coercive possible environment under the

circumstances.

It was precisely this circumvention of Miranda which this

Court addressed and rejected in Berkemer which has now been

sanctioned by Maryland’s highest court.

B. THE PETITIONER’S SECOND CONFESSION

WAS INVOLUNTARY UNDER THE FOURTEENTH

AMENDMENT.

Reynolds’ second confession took place in his own home

under circumstances at least as egregious as the first. The police

officer deceptively reassured Reynolds that he had not come to

arrest him and that he needed Reynolds’ confession to help Crystal,

Reynolds’ sexually abused daughter, by taping an exhaustive

16

recollection of Reynolds’ various sexual activities, which would

also help Reynolds in his counseling sessions.

The police officer’s conduct was far from that condoned in

Colorado v. Spring, supra, for example, where the police did not

tell Spring the subject of their questions before giving him

Miranda warnings. Because the police had arrested Spring for

firearms violations, when their real, undisclosed concern was

murder, Spring had assumed they would ask him about the firearms

when he waived his Miranda rights. Instead, they interrogated him

about a murder and he subsequently challenged the validity of his

confession. Since the offensive conduct in Spring was “official

silence,” and since there was no allegation that Spring

misunderstood the consequences of speaking with law

enforcement officials, Spring’s Miranda waiver and confession

were held voluntary. Spring at 479 U.S. 575, 107S. Ct. 858.

Oregon v. Elstad, 470 U.S. 298, 105 S. Ct. 1285, 84 L. Ed. 2d

222 (1985) directs that where an accused has made several

confessions, as here, “the surrounding circumstances and the

entire course of police conduct with respect to the suspect” should

be evaluated in determining voluntariness.

In this case, in an extremely sophisticated form of

interrogation, the prosecutor and the police acted in concert with

the therapist to induce Reynolds not only to reveal the names of his

victims, but to then elaborate on the details of their statements to

the police. Throughout this entire process there was never a serious

suggestion by anyone that Reynolds might want to consult his own

attorney.

At one time, Maryland courts had acknowledged what they

presently reject: that “the road to a civilized society leads past the

use of the ‘rubber hose,’ the ‘rack,’ the ‘Chinese boot,’ and other

‘third degree’ methods of obtaining ‘confessions’ from persons

17

accused of the commission of criminal acts,” and that “ ‘ “(s)ince

Chambers v. Florida, 309 U.S. 227, this Court has recognized that

coercion can be mental as well as physical, and that the blood of the

accused is not the only hallmark of an unconstitutional

inquisition.” ’” Bryant v. State, 49 Md. App. 272, 431 A.2d 714

(1981), citing Miranda v. Arizona, supra.

CONCLUSION

For these various reasons, this petition for certiorari should be

granted and the judgments of the Court of Appeals of Maryland and

the Court of Special Appeals of Maryland affirming the

petitioner’s conviction reversed, and the case remanded to the

Circuit Court for Carroll County, Maryland with instruction to

suppress the petitioner’s confessions.

Respectfully submitted,

STEPHEN P. BOUREXIS

Counsel of Record

JUDITH S. STAINBROOK

Attorneys for Petitioner

235 East Main Street

Westminster, Maryland 21157

(410) 876-6050

la

APPENDIX A — OPINION OF THE COURT OF APPEALS

OF MARYLAND FILED AUGUST 24, 1992

IN THE COURT OF SPECIALAPPEALS OF MARYLAND

No. 121

September Term, 1991

FREDERICK WILLIAM REYNOLDS. JR.

v.

STATE OF MARYLAND

Murphy, C.J.

Eldridge

Rodowsky

McAuliffe

Chasanow

Karwacki

Bell

JJ.

Opinion by Chasanow, J.

Eldridge, J. concurs in result only

Filed: August 24, 1992

There are several links in the long chain that brings this case to

us. The first — and certainly not the least — is when members of

the family of Frederick William Reynolds, Jr., confronted him, late

in the spring of 1989, with dark secrets two of his adult daughters

had just shared with them. For years, according to the women,

Reynolds had sexually abused them at the family farm in Carroll

2a

Appendix A

County when they were children; one he had repeatedly raped

throughout her youth and into her adolescence. Now in his 50s with

the girls grown, Reynolds was no longer engaged in criminally

incestuous behavior. But also now there were granddaughters, and

Crystal, the eldest daughter and the one who had suffered the most,

feared for them. That fear led her to tell other family members what

had happened to her; she learned she was not the only daughter

who had been sexually abused. The family then confronted

Reynolds and urged him to get help.

Reynolds went to a pastor, who counseled him and other

family members for a period of time. The cleric’s schedule did not

allow him to see Reynolds very often that summer, so he suggested

that Reynolds seek further help from an organization called Family

Children’s Service Center in Westminster. Reynolds agreed and

phoned for an appointment.

When Reynolds arrived at the Center, he spoke there with a

woman named Marcia Meyer. Reynolds testified later, “She said

that I had to be very honest with them, that they would take me on,

that they had lots of patients like I was and they would — they

could help.” But Meyer told Reynolds that he would have to sign a

form authorizing her organization to notify the police of any

evidence implicating him as a child abuser. Reynolds asked Meyer

about the form, and “she said you can’t take counseling here unless

you sign this because I cannot do it with you.”

1. Under Maryland law,“each health practitioner. . . acting ina professional

capacity, who has reason to believe that a child has been subjected to. . . abuse,

shall notify the local department or the appropriate law enforcement agency. . . .”

Maryland Code (1984, 1991 Repl. Vol.), Family Law Article, § 5-704(a)(1)(i).

3a

Appendix A

Uncertain what to do, Reynolds telephoned the Carroll

County State’s Attorney's office and spoke with Assistant State’s

Attorney Kathi Hill. The call was unexpected, and Hill tried to be

both cautious and candid. According to Reynolds, she told him,

“Well, you should go and take your counseling right now, that’s the

first thing.” Hill added, “It’s been a long time since this occurred,

but I cannot give you advice because if — I — it may, in the future,

— I'm—I'm aprosecutor. I prosecute these types of cases.”

Reynolds wanted help and assumed that all counselors would

have the same policy about reporting to the police as did the Family

Children’s Service Center (the Center).? Accompanied by his wife,

Agnes, he went to the Center and signed the form.

After Reynolds’ counseling program was underway, Meyer

called Reynolds and told him that the police wanted to talk with

him. It was not part of the program, she said, and he did not have to

discuss anything with the police if he did not want to. Still

Reynolds agreed to meet Corporal Richard E. Norman of the

Maryland State Police at the Center. He agreed to speak with

Norman, Reynolds later testified, because “that’s what my children

had told me they wanted; they weren’t interested in prosecution or

jail.” On July 11, 1989, Norman came to interview Reynolds at the

Center.

2. Conceivably, Reynolds could have considered going to another pastor for

counseling on the theory that confidential communications to such an individual are

not covered by the disclosure requirements set forth in § 5-704 of the Family Law

Article. See Md. Code (1984, 1989 Repl. Vol.), Courts & Judicial Proceedings Art.,

§ 9-111, and Family Law Art., § 5-705(a)(3). We express no opinion on whether

such communications would, in fact, be protected, since that issue is not before us. We

merely note that Reynolds did not pursue that possible alternative in his quest for

counseling.

4a

Appendix A

Norman introduced himself and told Reynolds that he

understood “some statements” had been made to Meyer; would

Reynolds now “tell me the same things?”

“Well,” Reynolds replied, “whatever I tell you is goin’ to

incriminate me.” Norman asked what he meant, and Reynolds

explained, “Well, I’m an abuser — I’m considered an abuser.”

At that point, Norman told Reynolds that he did not have to

say anything. Reynolds then asked for “his rights,” though he later

testified that he had made this request “jokingly.” Nevertheless,

Norman obliged, reading the “Miranda rights” aloud from a

printed card he carried.’

According to his testimony, Norman also advised Reynolds

that “he wasn’t under arrest and he didn’t have to talk to me; I

mean, he didn’t have to say a thing to me.” Again, Reynolds

acknowledged that he would be “incriminating” himself. The July

11 interview began and lasted “anywhere from fifteen minutes to

an hour.”

3. According to Norman, this is what he told Reynolds:

“You have the absolute right to remain silent. If you

choose to answer, your answers can be used against you

in court. You have the right to a lawyer. If you want a

lawyer and cannot afford one, one will be provided for

you. You have the right to talk privately with your lawyer

before answering any questions and have him with you

during the questioning. If you would like to answer

questions without having a lawyer present, you have the

right to stop at any time and obtain the services of a

lawyer.”

See Miranda v. Arizona, 384 U.S. 436, 86S. Ct. 1602, 16 L. Ed.2d 694 (1966).

a a

Sa

Appendix A

Reynolds talked about sexually touching all four of his

daughters, starting with each when she was about ten years old. As

for Crystal, there was more than touching; he had sexual

intercourse with her periodically until she was well into her high

school years. Reynolds told Norman where and how he might be

able to contact his daughters.

After the interview, Norman pursued his investigation,

eventually talking at length with Crystal and with Vivian, the

second daughter. Over a period of time both women gave detailed

accounts of how they were abused by their father. After a long

interviewing session with Crystal on September 6, 1989, Norman

decided to speak again with Reynolds. That afternoon, he went to

Reynolds’ home. Reynolds was not there, so Norman waited.

Shortly after 4 P.M. Reynolds showed up, and the investigator

asked if he could speak with him because Crystal “had told me

things.” Reynolds said, “Fine,” and the two men went inside.

According to Reynolds’ testimony later, Norman “explained

to me that he wanted me to try to remember the events as closely as

I could and I couldn’t understand that and he says, ‘It’s for

Crystal’s good because if you can’t remember them, she doesn’t

think anybody believes her, that it didn’t happen,’ and so I was to

try to remember because I would really be helping my daughter,

that — she needed that for her own mental health. . . .”

Eventually Norman’s second interview with Reynolds began.

This time, their conversation was tape-recorded.

“First of all, you’re not under arrest, okay, like I told you a bit

earlier,” Norman advised Reynolds. “Same situation down in — in

Mrs. Meyer’s office. All I want to do is just get some information

from you, hear your side of the story again and, you know, you

don’t have to talk to me. If you want me to leave, I'll leave, you

know.”

6a

Appendix A

Reynclds talked about his sexual episodes with Crystal and

Vivian. At times he corroborated what his daughters had told

Norman about some of the events; other incidents from the past he

disputed or could not remember. When Norman began to follow up

after Reynolds acknowledged threatening Crystal to get his way,

Reynolds asked, “Well, why do you need those times?”

“Because I’m trying to verify what she’s telling me,” Norman

responded.

“But you’re not arresting me,” continued Reynolds. “Why do

you need to know every little detail?”

“Because it’s important for her to understand,” Norman

replied, “you know, and that — that I can — I can say, yes, you

know, I talked to your dad and — and he’s saying that everything

that happened..... ” At that moment, Reynolds interrupted

Norman to get the phone. When he came back ten minutes later,

Agnes was with him.

Norman reopened the interview with these words: “You

realize I’m — I’m not gonna arrest you today. All I want to do is

just talk to you, you know, and you’re not under arrest and I can

leave — you want me to leave any time you want, so I [inaudible]

understand that. Do you understand that?” Reynolds indicated he

did, and the conversation continued until just before 5:20 P.M.

Two days later, Norman returned and arrested Reynolds, who

was eventually charged with several sexual offenses against

Crystal and Vivian.

iii

Ta

Appendix A

Before trial, Reynolds moved to suppress the incriminating

statements he had made to Norman. The trial court denied the

motion, finding that Reynolds had confessed freely and voluntarily

to the State Police investigator. Neither Marcia Meyer nor anyone

else from the Family Children’s Service Center testified about

anything Reynolds said in counseling. The only statements by

Reynolds introduced into evidence were those he had made

directly to Norman. After a two-day trial, a Carroll County Circuit

Court jury found Reynolds guilty of second degree rape, two

counts of second degree sexual offense, assault with intent to rape,

assault with intent to commit second degree sex offense, and

incest. On June 5, 1990, Judge Donald Gilmore sentenced

Reynolds to a total of 50 years in prison.

Reynolds appealed, but the Court of Special Appeals affirmed

the judgment against him. Reynolds v. State, 88 Md.App. 197, 594

A.2d 609 (1991). Reynolds petitioned this court for a writ of

certiorari, which we granted.

As was the case in the Court of Special Appeals, Reynolds’

attack on his convictions focuses on the statements he gave to

Norman. He challenges their introduction into evidence, claiming

that they were the result of improper inducement and violative of

his due process rights. In support of his contention, Reynolds relies

on both constitutional and common law arguments. For the

foliowing reasons, we, too, decline to set aside his convictions.

THE FIRST CONFESSION

Reynolds complains that what Assistant State’s Attorney

Kathi Hill told him during their brief telephone conversation

induced him to confess. Therefore, he argues, his subsequent

statements to Norman were involuntary. He further contends that

8a

Appendix A

Hill should have warned him about “the consequences of seeking

counseling.” Under Reynolds’ reasoning, Hill’s failure to do so led

him to make admissions to the counselors, which in turn led to his

admissions to Norman and thus rendered his statements

inadmissible.

Reynolds bases his argument on both constitutional and

common law voluntariness grounds. The State contends that the

issue of common law voluntariness was waived because Reynolds

failed to present it with specificity to the trial court; the Court of

Special Appeals agreed. 88 Md. App. at 219-221,594A.2d at 620.

Reynolds claims the issue was raised when, in his motion to

suppress, he argued that his confession was admitted in violation

of “other legal rights,” citing a host of common law voluntariness

cases included Stokes v. State, 289 Md. 155,423 A.2d 552 (1980);

Hillard v. State, 286 Md. 145, 406 A.2d. 415 (1979); and Bellamy v.

State, 50 Md.App. 65, 435 A.2d 821 (1981), cert. denied, 292 Md.

376 (1982). Reynolds further asserts that he specifically adopted

the arguments and points and authorities contained in his motion at

the suppression hearing. Because Reynolds’ common law

voluntariness contentions are intertwined with his consitutional

voluntariness contentions, we are going to assume that the issue

was raised below. But we caution defense counsel that they must be

precise when they craft such motions and when they argue them at

suppression hearings. It is an attorney’s obligation to present with

clarity all issues that must be resolved by a trial judge, whose

responsibilities include making sure that proper evidence is

presented to those entrusted with determining guilt or innocence.

In the future, we will be less inclined to review an issue such as the

one on common law voluntariness that Reynolds says was included

in his scattergun motion but which was not specifically argued and

clearly identified at the suppression hearing.

9a

Appendix A

Originally common law confessions were admissible even if

they had been wrung from hapless Suspects by torture. W. LaFave

& J. Israel, 1 Criminal Procedure, § 6.2, at 439 (1984) (hereinafter

LaFave & Israel). In 1775, Lord Mansfield first articulated what

Wigmore would later characterize as the initial expression of the

requirement that a confession be voluntary in order to be

admissible against a criminal defendant. In that early elucidation,

Lord Mansfield specifically referred to promises as one of the

factors that might render a confession inadmissible. He Stated:

“The instance has frequently happened, of

persons having made confessions under threats

or promises: the consequence as frequently has

been, that such examinations and confessions

have not been made use of against them on their

trial.”

Rudd's Case, 1 Leach Cr. C. 115, 118, 168 Eng. Rep. 160, 161

(1775), quoted in 1 McCormick on Evidence,§ 146 (4thed. 1992)

(hereinafter McCormick.) See 3 Wigmore, Evidence §§ 818-19

(Chadbourne rev. 1970) (hereinafter Wigmore). The common law

approach was to identify inducements that might make a

confession unreliable or even false. Actual or threatened physical

harm, promises to be lenient upon conviction or not to prosecute,

and deceptive interrogation came under scrutiny. See LaFave

&/srael§ 6.2, at 443.

Examination of a confession’s “voluntariness” can be made

both under a constitutional due process analysis and by application

of state evidentiary laws. See generally 1 McCormick §§ 146-47,

at 564-74. When analyzing whether a confession was voluntary

under due process standards, “[t]he test is of the totality of the

circumstances. All of the circumstances of the interrogation, and

10a

Appendix A

the particular characteristics of the accused must be examined.

Generally, no one factor is dispositive.” D. Nissan et al., Law of

Confessions, § 1:9(1980, 1991 Cum. Supp.) (hereinafter, Law of

Confessions). “[W)hether [a] confession was obtained by coercion

or improper inducement can be determined only by an examination

of all of the attendant circumstances.” Haynes v. Washington, 373

U.S. 503, 513, 83 S. Ct. 1336, 1343, 10 L.Ed. 2d 513, 521 (1963).

It is clear that coercion by government agents is a necessary

ingredient to a determination that a defendant’s confession should

be suppressed because the defendant’s constitutional due process

rights have been violated. “Absent police conduct causally related

to the confession, there is simply no basis for concluding that any

state actor has deprived a criminal defendant of due process of

law.” Colorado v. Connelly, 479 U.S. 157, 164, 107 S. Ct. 515, 520,

93 L. Ed. 2d 473, 482 (1986).

Determining voluntariness under common law principles, as

opposed to constitutional due process requirements, may require

an additional inquiry. “Generally, the approach under the common

law rule was to identify certain inducements which made a

confession unreliable. These included actual or threatened

physical harm, a promise not to prosecute, a promise to provide

lenient treatment ® on conviction, and deceptive practices so

extreme that they might have produced a false confession.”

LaFave & Israel§ 6.2, at440. This Court has held that, regardless

of constitutional imperatives, Maryland law demands that

confessions “be shown to be free of any coercive barnacles that

may have attached by improper means to prevent the expression

from being voluntary.” Hillard, 286 Md. at 150, 406 A.2d at

418.

In harmony with the approach taken in federal constitutional

| aia

lla

Appendix A

analysis, Maryland has for the most part applied a “totality of the

circumstances” rule when appraising the voluntariness of

confessions under state nonconstitutional law. See Hoey v. State,

311 Md. 473, 483, 536 A.2d 622, 627 (1988); Lewis v. State, 285

Md. 705, 721, 404A.2d 1073, 1081 (1979). See also State v. Kidd,

281 Md. 32, 36, 375 A.2d 1105, 1108, cert. denied, 434 U.S. 1002,

98 S.Ct. 646, 54 L.Ed.2d 498 (1977).

One area that has attracted special attention with respect to

voluntariness — both under common law and constitutional due

process requirements — concerns promises made to suspects

being interrogated. 1 McCormick § 154. It is the defendant’s

sensitivity to inducement while in custody and the potential impact

of the promise of leniency that render the confession inadmissible.

Courts abhor, or at least find distasteful, promises of leniency or

immunity made by state agents to defendants subject to the

vulnerability of custodial interrogation. In contrast, however,

courts permit and perhaps even encourage promises of leniency

through reduced charges or lower sentences made by prosecuting

attorneys that induce criminal defendants to admit their culpability

and plead guilty. Cf. Wright v. State, 307 Md. 552, 515 A.2d 1157

(1986).

The reasons that promises of leniency may render a

confession inadmissible were discussed by the Supreme Court in

Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d

747 (1970):

“[When] a confession [was] given by a

defendant in custody, alone and unrepresented

by counsel. . . evena mild promise of leniency

was deemed sufficient to bar the confession. . .

because defendants at such times are too

12a

Appendix A

sensitive to inducement and the possible

impact on them too great to ignore and too

difficult to assess.”

Id. at 754, 90 S.Ct. at 1472, 25 L.Ed.2d at 759. _

In Arizona v. Fulminante, __ U.S. __, 111 S.Ct. 1246, 113

L.Ed.2d 302 (1991), the Supreme Court made it clear that

constitutional voluntariness does not require that all promises,

threats, or inducements render a confession involuntary; instead,

the federal constitution requires only that courts consider

promises, threats, or inducements as part of the totality of the

circumstances that courts must look at to determine voluntariness.

In Law of Confessions, the authors observed that state courts

developed a per se rule of exclusion to apply when the following

elements were met in cases involving promises of leniency or

immunity:

“1. Promise of benefit or advantage.

2. Made by a person of official or apparent

official authority.

3. The suspect would not have confessed but

for the promise.

4. The suspect's conclusion that he had

received an offer was objectively reasonable.”

Law of Confessions §1.12, at 23-24. In the 1991 supplement to

their work, however, they note that there is “a pronounced trend

away from” per se exclusion and “toward a totality of the

circumstances approach.” /d. § 1:12, at 13 (1991 Cum. Supp.).

13a

Appendix A

McCormick also notes that judicial rejection of the per se analysis

in favor of a totality of the circumstances approach has increased

the need for determining the impact of promises on particular

defendants in particular interrogations. 1 McCormick § 154, at

615. See State v. Strain, 779 P.2d 221, 227 (Utah 1989) (Case

remanded for a determination whether, under the totality of the

circumstances, the defendant was so affected by improper

promises that his confession was involuntary). In 1987, after

holding a confession voluntary notwithstanding a firm promise of

leniency made by the police, the Eleventh Circuit noted:

“[A]lthough it was at one time suggested that

any indication of leniency was both a necessary

and a sufficient condition of a finding of

involuntariness (Bram v. United States, 168

U.S. 532, 542-43, 18 S.Ct. 183, 186-87, 42 L.E.

568[, 573] (1897)), the law today is that such an

indication is a necessary but not itself a

sufficient condition. Or to borrow a familiar

concept from another area of the law, it is not

enough for the indication of leniency to bear a

but-for relationship to the confession in a

purely temporal sense (that is, simply to show

the defendant would not have raised the subject

by speaking of potential benefits). Instead the

but-for test is one of proximate cause in the

overborne-will sense: whether the police

promise caused a deprivation of free will on the

part of the then suspect.”

Cole v. Lane, 830 F.2d 104, 109 (7th Cir. 1987), cert. denied, 484

U.S. 1076, 108 S.Ct. 1053, 98 L.Ed.2d 1015 (1988). See also

Green v. Scully, 850 F.2d 894 (2d Cir.), cert. denied, 488 U.S. 945,

109 S.Ct. 374, 102 L.Ed.2d 363 (1988), where the court said:

14a

Appendix A

“A reading of our own decisions reveals that

the presence of a direct or implied promise of

help or leniency alone has not barred the

admission of a confession where the totality of

the circumstances indicates it was the product

of a free and independent decision . . . Other

circuits also conclude that promises do not

require an analysis separate from or different

than the totality of circumstances rules ...

Thus, the inquiry in each case is whether sucha

promise overbears a suspect’s will, as the

promise of leniency did in Bram, either alone

- Or in conjunction with other factors.”

(Citations omitted).

850 F.2d at 901.

Maryland has followed the old common law rule, which has

seemed to adopt a per se exclusion rule that official promises of

leniency to a defendant in custody that induce a confession render

the confession inadmissible. In a line of Maryland cases reaching

back into the last century, this Court has explored challenges to the

voluntariness of statements made by suspects who had been

offered promises. If a confession "had been induced by any threat

of harm, or promise of wordly advantage held out to him by [the

interrogating detective], or by his authority, or in his presence and

with his sanction, it ought to be excluded” Nicholson v. State, 38

Md. 130, 153 (1873).

A mere exhortation to tell the truth is not enough to make a

statement involuntary. See Ralph v. State, 226 Md. 480, 486, 174

A.2d 163, 166 (1961), cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7

L.Ed.2d 613 (1962). See also State v. Rochster, 391 S.E.2d 244,

247 (S.C. 1990) (Polygraph examiner’s statement that it would be

in suspect’s interest to tell the truth did not offer a “hope of reward

15a

Appendix A

or benefit.”) An entreaty to “tell the truth” coupled with a promise

that there would be benefits to the Suspect, however, can render the

statement involuntary. In Biscoe v. State, for example, aconfession

was inadmissible because the Suspect was told “that it would be

better for him to tell the truth, and have no more trouble about it.’

67 Md. 6, 7, 8A. 571, 572 (1887) (emphasis added). The

declaration, “Tell the truth about it. You've got nothing to fear if

you tell the truth, and you weren't in it,” was also seen as an

improper inducement by a plurality of the Court in State v. Dobbs,

148 Md. 34, 61, 129 A. 275, 286 (1925) (Offutt, J., concurring)

(emphasis added). For a discussion of the difference between

exhortations and inducements, see Clark v. State, 48 Md. App. 637,

644-45, 429 A.2d 287, 292, cert. denied, 291 Md. 773 (1981).*

From our precedents, we distilled the following common law

4. In People v. Hill, 426 P.2d 908, 916 (Cal.), cert. denied. 389 U.S. 993, 88

S.Ct. 492, 19 L.Ed.2d 487 (1967), and 390 U.S. 911, 88 St.Ct. 838, 19 L.Ed.2d 884

(1968), the Supreme Court of California said that police exhortations to a suspect to

tell the truth without threats or promises did not render aconfession involuntary. The

Suspect in that case had been urged to “help himself” by considering his own interests

against those of his codefendants.

“When the benefit pointed out by the police to a

Suspect is merely that which flows naturally from a

truthful and honest course of conduct, we can perceive

nothing improper in such police activity. On the other

hand, if in addition to the foregoing benefit, or in the

place thereof, the defendant is given to understand that

he might reasonably expect benefits in thenature of more

lenient treatment at the hands of the police, prosecution

or court in consideration of making a statement, even a

truthful one, such motivation is deemed to render the

Statement involuntary and inadmissible.”

16a

Appendix A

principle on promises:

“{I]f an accused is told, or it is implied, that

making an inculpatory statement will be to his

advantage, in that he will be given help or some

special consideration, and he makes remarks in

reliance on that inducement, his declaration

will be considered to have been involuntarily

made and therefore inadmissible.”

Hillard v. State, 286 Md. at 152-53, 406 A.2d at 420. “The rule in

Hillard announces that a statement is rendered involuntary if it is

induced by any official promise which redounds to the benefit or

desire of the defendant.” Stokes v. State, 289 Md. at 160, 423 A.2d

at 554. One common thread that runs through our cases is that the

promise must have caused the suspect to confess. If a suspect did

not rely on an interrogator’s comments, obviously, the statement is

admissible regardless of whether the interrogator had articulated

an improper inducement. By definition, there would have been no

“inducement” at all, because the interrogator “induced” nothing.

See Ralph v. State in which we said, “(T]he court besides finding

out whether an inducement held out to the accused should also

ascertain whether he had been influenced by such inducement in

making the confession.” We noted that there was nothing in that

case “to show what effect the statement had on the defendant.” 226

Md. at 486-87, 174A.2d at 166 (emphasis added). See also State ex

rel. Collins v. Superior Court, 702 P.2d 1338, 1340 (Ariz. 1985)

(“[T]he promise must induce the defendant to waive his fifth

amendment rights. If defendant did not rely on the promise, he

certainly was not induced by it to make a statement.”) (Emphasis in

the original).

We note that Hill was responding to Reynolds’ unsolicited

ck << lal

17a

Appendix A

telephone call; Reynolds was not under any kind of custodial

restraint or compulsion. Furthermore, there was no inducement by

Hill. She did not promise Reynolds any advantages or benefits. In

fact, she promised him nothing. All Hill did was recommend that

Reynolds receive counseling and warn that she could not give him

advice because she might be called upon to prosecute him in the

future. Hill certainly never suggested that Reynolds talk with the

police. If anything, Hill's comments were a further indication to

Reynolds that he could be held criminally liable for sexually

abusing his daughters.* Without a promise of benefit or advantage,

there was no inducement.

We note further thai nothing Reynolds said to Hill or at the

Center became evidence at his trial. Even assuming that Hill's

comments were an inducement to seek counseling, what he said to

Meyer or any counselor at the Family Children's Service Center

was not used against him in court. The confessions at issue were

made to Corporal Norman much later and were completely

independent of the brief telephone conversation between Reynolds

and Hill.

5. Had Hill truly embarked on acourse of offering legal advice to Reynolds that

induced him to confess, she might have crossed the line into impermissible conduct.

In Martin v. Wainwright,770 F.2d 918, 927 (1 1thCir. 1985), modified, 781 F.2d 185,

cert. denied, 479 U.S. 909, 107 S.Ct. 307, 93 L.Ed.2d 281 (1986), the court said it was

“troubled” by allegations that an assistant state's attorney named Jack Scarola had

told the suspect that a confession might be of value to him at the capital sentencing

phase of his trial and that “it is only the truth that can help you.” Although the court

found that “[a]s a prosecuting attorney, Scarola should not have engaged in such

discussions with a soon-to-be defendant,” it concluded that the prosecutor's

“indiscretions” did not render the confession involuntary. Nothing that Hill did even

comes close to the conduct before the court in Martin v. Wainwright. And, of course,

Scarola was involved in the interrogation of a suspect, while Hill was merely

responding to an unsolicited query from someone she had never heard of.

18a

Appendix A

In trying to link Hill's comment to his subsequent confession

to Norman, Reynolds reaches a bit too far. We would have to accept

that the prosecutor not only coerced or induced him into talking to

the counselor at the Center, but also coerced or induced him into

confessing to Corporal Norman at a later date after his counseling

was well underway. Arguably, Hill may have induced Reynolds to

speak to the counselors; in no way did she attempt to induce him to

speak to the police. Even assuming improper conduct by the

prosecutor, any taint is so attenuated by the time Corporal Norman

interviewed Reynolds -- preceded by both the investigator and

Meyer advising Reynolds he did not have to talk to the police -- that

exclusion is not appropriate. There is no established link between

the alleged inducement to talk with counselors at the Center and

Reynolds’ decision to speak with Corporal Norman.

Whatever the prosecutor did, Reynolds gave his first

statement to Norman after having received his Miranda rights and

being told by Meyer that he did not have to talk to police. In neither

his conversation with Hill nor his interview with Norman was

Reynolds under any compulsion to confess, and he was offered no

inducements affecting the voluntariness of his statements. In short,

nothing Assistant State's Attorney Hill did or said led Reynolds to

admit his crimes to the police, whether one analyzes the evidence

from a per se rule or a totality of the circumstances approach.

THE SECOND CONFESSION

The second interview, which occurred at Reynolds’ home

nearly two months after the initial session with Norman, is also a

target of Reynolds’ attack. By this time, Norman had interviewed

both Crystal and Vivian and was apparently well on his way to

developing a case against their father. Reynolds invited the

investigator inside and agreed to talk. Norman told Reynolds that

he was not going to arrest him that day and that he could stop the

19a

Appendix A

interview and tell him to leave any time he wished. He did not,

however, reiterate the full Miranda rights as he had done at the

Center; he said merely that it was the “same situation down in Ms.

Meyer's office.”

Reynolds contends that Norman should have fully advised

him of his rights before the second interview. We reject his

argument and adopt the well-reasoned analysis of the Court of

Special Appeals, which held that Miranda warnings were

unnecessary because there was no custodial interrogation. 88 Md.

App. at 207-213, 594.A.2d at 614-17.

Reynolds also contends that Norman improperly induced him

to talk by indicating the truth would “help” Crystal. We disagree.

What Norman may have implied was that the statement might be

for Crystal's benefit -- not for Reynolds’ benefit. At most, any

reward would be a purely collateral benefit. Promises of purely

collateral benefits do not generally reach a level that undermines

the voluntariness of a confession.

““{IJn general such promises [of only

‘collateral’ benefits] are less coercive to the

accused than promises directly relating to the

criminal proceedings at hand’ Some courts. . .

apparently regard the collateral nature of the

promised benefit unworthy of consideration or

even comment.” (Footnotes omitted.)

1 McCormick §155, at 616-17 (quoting Miller v. Fenton, 796 F.2d

598, 610 (3d Cir.), cert. denied sub nom., Miller v. Neubert, 479

U.S. 989, 107 S.Ct. 585, 93 L.Ed.2d 587 (1986)). Generally the

type of inducements that rendered confessions inadmissible at

common law were inducements extreme enough to make the

confessions unreliable and which directly impacted on the accused

20a

Appendix A

or the crime charged. LaFave & Israel, §6.2, at 440.

In Stokes v. State, this Court suppressed a statement from a

suspect who had been promised what may have been both a direct

and collateral benefit -- that his wife would not be arrested and

charged as a codefendant if he told the police where illicit drugs

were hidden. 289 Md. at 157, 423 A.2d at 553. In that case, and in

the cases cited therein, the inducements concerned what the police

would or would not do if the defendant made a statement. It was the

threat of the authorities to cause the defendant distress and anguish

that created the coercive atmosphere. We added, “Neither

Maryland nor any other jurisdiction of which we are aware,

however, goes so far as to say that a confession motivated solely by

a defendant’s sense of altruism, without the inducement of an

official threat or promise, is involuntary.” 289 Md. at 161, 423

A.2d at 555. See also Rogers v. State, 89 Md. 424, 43 A. 922 (1899).

In Rogers, a brother and sister were both being simultaneously

interrogated about a homicide. The brother confessed to the

murder after having been told by police “if your sister is innocent

you are the only one who knows so, and it is your duty as a man to

tell what you know about it...” 89 Md. at 426-27, 43 A. at 923.

This Court upheld the admissibility of the confession because there

was neither threat, promise, nor any quid pro quo posited by the

police officer’s statement.

In the instant case, Norman made no express or implied threat

or promise to take official action or refrain from taking official

action depending on whether Reynolds made a statement . Thus,

“where no express or implied promise or threat is made by the

police, a suspect’s belief that his cooperation will benefit a relative

will not invalidate the . . . [statement].” Stokes v. State, 289 Md. at

162, 423 A.2d at 555-56 (alteration in original)(quoting People v.

Steger, 128 Cal. Rptr. 161, 168, 546 P.2d 665, 672 (Cal. 1976)(en

banc). See also Finke v. State, 56 Md. App. 450, 485-86, 468 A.2d

21a

Appendix A

353, 371-72 (1983), cert. denied, 299 Md. 425, 474.A.2d 218, cert.

denied, 469 U.S. 1043, 105 S.Ct. 529, 83 L.Ed.2d 416 (1984).

Reynolds does not contend that Corporal Norman was

untruthful when he relayed Crystal’s concern that her allegations

might not be believed. Merely relaying this to Reynolds was not an

“improper” inducement. See Wright v. State, 307 Md. 552, 515

A.2d 1157 (1986) (discussing inducements and the requirement

that an inducement be “improper.”).

At most, Norman implied that, by confessing, Reynolds

would allay Crystal’s self-doubt and concern that no one would

believe her. This may have triggered Reynolds’ “sense of

altruism,” but it was not the type of inducement that would

mandate suppression. There was no promise or threat of official

action if Reynolds did not confess. The trial judge did not err in

refusing to suppress the second confession.

CONCLUSION

In sum, we do not find that any action on the part of the

prosecutor or the police investigator subverted Reynolds’ freedom

to decide whether or not to make his incriminating statements.

What Reynolds told Norman -- and what was used eventually at his

trial -- was voluntary.

JUDGEMENT OF THE COURT OF

SPECIAL APPEALS AFFIRMED.

COSTS IN THIS COURT AND IN THE

COURT OF SPECIAL APPEALS TO BE

PAID BY THE PETITIONER.

Judge Eldridge concurs in result only.

22a

APPENDIX B — OPINION OF THE COURT OF SPECIAL

APPEALS OF MARYLAND FILED AUGUST 29, 1991

REPORTED

IN THE COURT OF SPECIAL APPEALS OF MARYLAND

No. 1247

September Term, 1990

FREDERICK WILLIAM REYNOLDS, JR.

v.

STATE OF MARYLAND

Moylan,

Davis,

Getty, James S. (Specially Assigned),

JJ.

OPINION BY MOYLAND, J.

Filed: August 29, 1991

The sets of rules circumscribing the admissibility of

incriminating statements are many. They are, moreover, distinct.

This appeal requires us to sort them out and to look at several of

them in appropriate isolation.

The appellant, Frederick William Reynolds, Jr., was

convicted by a Carroll County jury, presided over by Judge Donald

J. Gilmore, of 1) second-degree rape, 2) a second-degree sexual

23a

Appendix B

offense, 3) assault with intent to rape, 4) assault with intent to

commit a second-degree sexual offense, and 5) incest. Upon this

appeal, he raises the single contention that his various

incriminating admissions and confessions should have been

suppressed because they were obtained in violation of the privilege

against compelled self-incrimination of the Fifth Amendment and

the due process clause of the Fourteenth Amendment of the Federal

Constitution and of their Maryland counterparts, Articles 22 and

23 of the Maryland Declaration of Rights.

Analytically, this generic contention splits into two

docirinally distinct situations. Successive incriminating

conversations over an extended period of time fell into one or the

other of two categories: 1) conversations with a psychological

counsellor, Marcia Meyer, at the Family Children’s Service

Center; and 2) subsequent conversations with Corporal Richard

Norman of the Maryland State Police.

The Factual Background

The unfolding of this case did have an unusual twist.

Although ample corroboration of the corpora delicti was produced

at trial, the very occurrence of the crimes, quite aside from any

evidence of criminal agency, only came to light when the appellant

himself revealed them, first toa psychological counsellor and then

to police authorities. The victims of the appellant’s sexual abuses,

perpetrated at least twelve years earlier, were his now-adult

daughters, no longer living at home.

The appellant is a 56-year-old Carroll County farmer with a

high school education. At a family gathering on Mother’s Day,

1989, his family collectively confronted him with having sexually

abused his four daughters when they were children. At his family’s

urging, he sought counselling, first with the family minister. His

24a

Appendix B

minister, sensing the dimensions of the problem, in turn referred

him to Marcia Meyer at the Family Children’s Service Center in

Westminster.

When the appellant, accompanied by his wife, first visited Ms.

Meyer at the Westminster Center, he was told that in order to obtain

counselling, he would have to sign a form consenting to the

Center's notification of the police of any incriminating evidence

regarding child abuse. Ms. Meyer fully advised the appellant that

he was not compelled to sign the form and that he was not required

to receive counselling at the Center. Ms. Meyer was complying

with the command of Md. Fam. Law Code Ann. § 5-704, which

requires all health practitioners, human services -workers, and

counsellors, among others, to notify an appropriate law

enforcement agency if they have reason to believe that a child had

been subject to abuse.

Initially leery about signing the consent form, the appellant

called the State’s Attorney’s Office for advice and spoke to

Assistant State’s Attorney Kathi Hill. Ms. Hill gave him no

assurances that he would not be prosecuted. The prosecutor,

fielding an unsolicited and unanticipated telephone call, obviously

tried to be both helpful but cautiously candid, “Well, you should go

and take your counseling now, that’s the first thing. It’s been a long

time since this occurred, but I cannot give you advice because. . . it

may, in the future . . . I’m a prosecutor, I prosecute these types of

cases.”

The appellant then decided, in the presence of his wife, to sign

the consent form. He did so because “without signing that form, I

could not get counseling at that place.” The appellant testified that

he assumed that other agencies would have a similar procedure (as

was indeed the case). The appellant began a series of counseling

25a

Appendix B

sessions relating to the sexual abuse of his four daughters. This

collective incrimination over a series of counseling sessions was

introduced at the appellant’s trial and is the initial object of his

present challenge.

An Ostensible Counsellor-Patient Privilege:

Neither Available Nor Claimed

The appellant argues that, as a result of family pressures upon

him and inherent pressures within him, he desperately needed

counseling. He argues further that that need, somehow coupled

with Ms. Meyers’ inability to extend counseling without his

signing of the waiver form, rendered his various admissions and

confessions involuntary.

The appellant’s reasoning in this regard is a bit blurred. In no

event were his confessions themselves involuntary. By his own

acknowledgement, he needed to confess and wanted to confess.

The confessions were an indispensable predicate to and part of the

psychological catharsis and further treatment that he so

affirmatively and urgently sought. In framing the issue, the

appellant appears to have things doctrinally reversed, as if viewing

events in a mirror image. The threat of criminal exposure to which

he objects was not a pressure to confess; it was the precise

opposite, a pressure not to confess. Notwithstanding that pressure,

the appellant successfully resisted it and confessed anyway. Any

option that was arguably burdened was not his choice to remain

silent but his choice to speak.

In reframing the complaint for the appellant, we conclude that

he might have argued that what was involuntary was not the

confession pér se but rather the waiver of an ostensible counsellor-

patient privilege. At most, what was involuntary was not the

26a

Appendix B

confession but only the waiver of its confidentiality. The appellant,

however, makes no such argument. He never sought to establish

the existence of such a privilege.

Indeed, he could not have, for there is no such privilege. Save

only the privilege against compelled self-incrimination, all other

privileges are creatures either of the common law or of statute and

are subject to legislative control. The provisions of Md. Fam. Law

Code Ann. § 5-704 explicitly spell out that there is no privilege

against a counsellor’s legally required disclosure of the fact of

child abuse to law enforcement officials.

For even more basic reasons, however, the claim of

inadmissibility based upon involuntariness against Ms. Meyer and

the Family Children’s Service Center must fail.

No State Action

At the most fundamental level, this aspect of the appellant’s

argument (involuntariness of either the confession or the waiver of

its confidentiality) founders upon the shoals of the fact that the

Westminster Family Children’s Service Center is a private facility

and not a State agency. The appellant argues a violation of the Fifth

Amendment privilege against compelled self-incrimination made

applicable to the states through the due process clause of the

Fourteenth Amendment, as well as the Maryland constitutional

counterparts which have consistently been construed in pari

materia with their federal analogues. As the modifying adjective

“constitutional” necessarily implies, the constitutional law

(federal or state) is concerned with the constituting of government,

with spelling out those things that government may do and that

government may not do. It is not a code of conduct to private

individuals or private corporations. When governmental action is

not involved, constitutional law is not involved.

27a

Appendix B

Fully dispositive in this regard is the Supreme Court’s

decision in Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 5 15,93

L.Ed.2d 473 (1986). In that case, the defendant claimed both that a

confession was involuntary and that a waiver of Miranda rights

was involuntary. Everyone agreed that the agents of government

had done nothing improper. “The Colorado trial court .. . found

that the police committed no wrongful acts, and that finding has

been neither challenged by the respondent nor disturbed by the

Supreme Court of Colorado.” 479 U.S. at 165. The coercing agent

" was, according to the defendant, the “Voice of God” and, according

to his psychiatrist, a “command hallucination,” confronting the

defendant with the stark choice between confession and suicide.

The defendant chose the former. In pointing out that the absence of

any state action thereby rendered constitutional law inapplicable,

the Supreme Court observed, at 479 U.S. 165:

“Our ‘involuntary confession’

jurisprudence is entirely consistent with the

settled law requiring some sort of ‘state action’

to support a claim of violation of the Due

Process Clause of the Fourteenth

Amendment.”

The Fifth Amendment specifically and the Bill of Rights

generally are limitations or prohibitions directed at government as

government. When the Fifth Amendment provides that “No person

shall be compelled in any criminal case to be a witness against

himself,” it contemplates governmental compulsion and not

private compulsion. The Supreme Court went on, at 479 U.S. 165-

166:

“The difficulty with the approach of the

Supreme Court of Colorado is that it fails to

28a

Appendix B

recognize the essential link between coercive

activity of the State, on one hand, and a

resulting confession by a defendant, on the

other. The flaw in respondent’s constitutional

argument is that it would expand our previous

line of ‘voluntariness’ cases into a far-ranging

requirement that courts must divine a

defendant’s motivation for speaking or acting

as he did even though there be no claim that

governmental conduct coerced his decision.”

Even if we were to assume that the appellant’s confessions

were somehow involuntary (a conclusion not remotely suggested

by the evidence in this case), no constitutional right would be

implicated. There is no constitutional right not to give an

involuntary confession; there is only a constitutional right not to be

compelled to do so by government. The Supreme Court is again

illuminating, at 479 U.S. 166:

“Moreover, suppressing respondent’s

statements would serve absolutely no purpose

in enforcing constitutional guarantees. The

purpose of excluding evidence seized in

violation of the Constitution is to substantially

deter future violations of the Constitution .. .

Only if we were to establish a brand new

constitutional right — the right of a criminal

defendant to confess to his crime only when

totally rational and properly motivated —

could respondent’s present claim be

sustained.” (citation omitted).

Nothing we say herein should be taken to suggest that a

29a

Appendix B

privately coerced, as opposed to governmentally coerced,

confession could not be inadmissible but only that it would be so

within a different frame of analysis. Had, hypothetically, Ms.

Meyer and her companions at the Family Children’s Service

Center stretched the appellant upon the rack, his resultant

confession might have been inadmissible but it would not have

been unconstitutional.

“The most outrageous behavior by a

private party seeking to secure evidence

against a defendant does not make that

evidence inadmissible under the Due Process

Clause.”

479 U.S. at 166. Such inadmissibility, however, would fall within

the province of evidentiary law, concerned as it is with the

evidentiary trustworthiness or competence of a tortured

confession, and not within the province of constitutional law,

concerned as it is with governmental behavior. The clear

demarcation between evidentiary unreliability and constitutional

impropriety was spelled out by the Supreme Court, at 479 U.S.

166-167:

“Respondent would now have us require

Sweeping inquiries into the state of mind of a

criminal defendant who has confessed,

inquiries quite divorced from any coercion

brought to bear on the defendant by the State.

We think the Constitution rightly leaves this

sort of inquiry to be resolved by state laws

governing the admission of evidence and erects

no standard of its own in this area. A statement

rendered by one in the condition of respondent

30a

Appendix B

might be proved to be quite unreliable, but this

is a matter to be governed by the evidentiary

laws of the forum...and not by the Due Process

Clause of the Fourteenth Amendment. ‘The

aim of the requirement of due process is not to

exclude presumptively false evidence, but to

prevent fundamental unfairness in the use of

evidence, whether true or false.’ ” (citation

omitted).

There is no suggestion in this case that the confessions were in

any way inherently untrustworthy or incompetent in the

evidentiary sense. Certainly no claim was made in that regard.

The Introduction of State Action

The element of State action first appeared in this case on July

11, 1989. Ms. Meyers had contacted the State’s Attorney’s Office

about the appellant’s acknowledged sexual abuse of his four

daughters. The State’s Attorney’s Office had, in turn, notified the

Maryland State Police and the case was assigned to Corporal

Richard E. Norman. Corporal Norman indicated to Ms. Meyers

that he would like to speak with the appellant and Ms. Meyers

undertook to arrange the meeting. The appellant agreed to meet

with Corporal Norman at the Family Children’s Service Center in

the presence of Ms. Meyers. That meeting occurred on July 11,

1989.

Initially, Ms. Meyers informed the appellant that he did not

have to speak to Corporal Norman if he did not wish to do so. It was

only after he agreed that MS. Meyers introduced the two. Corporal

Norman reiterated that the appellant did not have to talk to him and

that he would leave at any time the appellant wished. The appellant

3la

| Appendix B

later testified that he “jokingly” asked Corporal Norman to read

him his constitutional rights and that Corporal Norman did so,

reading from a printed card.

Until that interview, Corporal Norman knew nothing about the

offenses. It was the appellant who supplied him with the names and

addresses of his daughters. The appellant further suggested that

Corporal Norman contact the daughters to find out exactly what

had happened.

The thrust of the appellant’s complaint does not concern itself

significantly with this first meeting or with the incriminating

admissions made in the course of it. It is rather the second meeting,

two months later on September 6, that draws the appellant’s fire.

During the intervening months, Corporal Norman had continued

his investigation, speaking at length with two of the appellant’s

daughters. After interviewing one of those daughters for several

hours on September 6, Corporal Norman went to the appellant’s

home at a little after 4 P.M. and asked to speak to him. Corporal

Norman informed the appellant that since their last interview, he

had spoken to two of the daughters and received their versions of

the abuses. When Corporal Norman asked whether he could speak

to the appellant again about these events, the appellant responded,

“Fine,” and invited the Corporal into his house.

Corporal Norman informed the appellant that he was not

under arrest, that he did not have to talk with him, and that if the

appellant wished, the Corpora! would leave. This second interview

was tape-recorded. The interview lasted a little over an hour. In the

course of it, the appellant repeated his version of the earlier acts of

abuse. At the conclusion of the interview, Corporal Norman left.

The appellant was not arrested until two days later, on September

8.

32a

Appendix B

Miranda Inapplicability:

Absence of Custody

The appellant complains that prior to this second interview at

his home on September 6, Corporal Norman did not give him the

Miranda warnings. It is unnecessary to analyze 1) the significance

of those advisements that Corporal Norman did give the appellant

on September 6, or 2) the significance of the fact that Miranda

warnings, whether required or not, had been fully given the

appellant prior io his first interview on July 11. The short answer

with respect to the September 6 interview is that Miranda was

inapplicable.

Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d

694 (1966), prescribed a set of warnings and advisements of rights

that the police under certain circumstances are required to give toa

suspect. The Miranda rule is not itself constitutional. The so-called

Miranda catechism is rather a judicially devised implementing

device, specifically designed to safeguard the Fifth Amendment

privilege against compelled self-incrimination. United States v.

Mandujano, 425 U.S. 564, 579, 96 S.Ct. 1768, 48 L.Ed.2d 212, 224

(1976), described precisely Miranda’s identity with the privilege

and their combined function of negating the inherent

“compulsion” of the custodial environment:

“Miranda addressed extrajudicial confessions

or admissions procured in a hostile, unfamiliar

environment which lacked _ procedural

safeguards. The decision expressly rested on

the privilege against compulsory self-

incrimination; the prescribed warnings sought

to negate the ‘compulsion’ thought to be

inherent in police station interrogation.”

(emphasis supplied).

33a

Appendix B

When, therefore, the threat of compulsion and the antidotal

Fifth Amendmeat privilege are involved in an extrajudicial police-

citizen confrontation, Miranda’s implementing rule is ipso facto

involved as well. Absent that involvement of the Fifth Amendment

privilege, based upon the inherent threat of compulsion, Miranda

is self-evidently inapplicable. The scope of an implementing rule

can be no broader than the scope of the undergirding constitutional

protection being implemented.

The heart of the Fifth Amendment privilege is the protection

of a suspect from actual governmental compulsion or coercion to

incriminate oneself. To determine when the threat of governmental

compulsion is at work in an investigative setting, Miranda

announced a bright line formula that the combination of custody

and interrogation will be deemed to be presumptively coercive. It

is, therefore, custodial interrogation that gives rise to the

presumption of compulsion and brings into play the therapeutic,

implementing rule of Miranda. Absent the combination of both

custody and interrogation, there is no presumption of compulsion

and there is, therefore, no call for Miranda’s implementing

countermeasures. Of the two necessary conditions for Miranda

applicability, the one at issue with respect to the September 6

interview is that of custody.

“Custody” ordinarily contemplates that a suspect will be

under arrest, frequently in a jailhouse or station house setting. The

appellant seeks solace almost exclusively in the case of Orozco v.

Texas, 394 U.S. 324, 89 S.Ct. 1095, 22 L.Ed. 311 (1969). There, the

Supreme Court found “custody” in the setting of the suspect’s

boardinghouse. The circumstances were, however, so extreme as

to make the case readily distinguishable. In investigating a murder,

four armed police officers were admitted to Orozco’s

boardinghouse by an unidentified woman and then burst,

34a

Appendix B

unannounced, into his bedroom at 4 A.M. He was immediately

interrogated, even as he came awake. The police testified that he

was “under arrest” at the moment the interrogation began.

Following the interrogation, he was taken to the police station

under arrest.

In countering Texas’ claim that Miranda was not applicable

because Orozco had been “interrogated on his own bed, in familiar

surroundings,” the Supreme Court pointed out that Miranda

“warnings were required when the person being interrogated was

‘in custody at the station or otherwise deprived of his freedom of

actlon in any significant way.”’ (emphasis in original).

There is nothing in the circumstances of the September 6

interrogation of the appellant at the appellant’s home, during

which and after which the appellant was not under arrest, that

suggests that he was deprived of his freedom of action in any

significant way.

Indeed, in Berkemer v. McCarty, 468 U.S. 420, 437, 104S.Ct.

3138, 82 L.Ed.2d 317, 333 (1984) the Supreme Court focused

explicitly on the phrase from Miranda “otherwise deprived of his

freedom of action in any significant way”:

“However, we decline to accord talismanic

power to the phrase in the Miranda opinion

emphasized by respondent. Fidelity to the

doctrine announced in Miranda requires that it

be enforced strictly, but only in those types of

situations in which the concerns that powered

the decision are implicated. Thus, we must

decide whether a traffic stop exerts upon a

detained person pressures that sufficiently

impair his free exercise of his privilege against

35a

Appendix B

self-incrimination to require that he be warned

of his constitutional rights.”

The Berkemer opinion reminded us that the custodial setting

dealt with by Miranda —a setting severe enough to give rise to a

presumption of compulsion—was one wherein a suspect was held

“incommunicado” and “in a police dominated atmosphere.” It then

went On to point out that even a legally authorized detention or

seizure of the person in the context of a traffic stop or even a Terry

stop did not amount to custody within the contemplation of

Miranda. Critical distinguishing factors were 1) that even the

legally compelled stop would only last a little while,and then the

detainee would be free to go upon his way and 2) that the stop was

frequently in public or in the presence of friends and relatives and

was by no means the “incommunicado” situation calling for the

strong antidote of Miranda.

An illuminating contrast may be made between the September

6 interview of the appellant and a typical Terry stop-and-frisk

situation. Here, the appellant was not under any restraint at all.

Here, the appellant was entitled not to speak to the policeman at all.

Here, the appellant was entitled to terminate the interview at any

time he chose. In a stop-and-frisk situation, the detainee is not free

to leave but must stand and be questioned. The detainee, moreover,

may be subjected to a head-to-toe frisk for weapons. Even that far

more restrictive situation, however, is not “custodial” so as to

require the giving of Miranda warnings. Berkemer v. McCarty

explained, at 468 U.S. 439-440:

“[U]nless the detainee’s answers provide the

officer with probable cause to arrest him, he

must then be released. The comparatively

nonthreatening character of detentions of this —

36a

Appendix B

sort explains the absence of any suggestion in

our opinions that Terry stops are subject to the

dictates of Miranda.” (footnotes omitted).

In Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48

L.Ed.2d 1 (1976), the Supreme Court was dealing with a situation

where the suspect, as here, was being interrogated in a private

home. The interrogators were two Special Agents of the

Intelligence Division of the Internal Revenue Service. In holding

that the situation was simply not custodial within the

contemplation of Miranda, the Supreme Court reiterated the

extreme and overbearing circumstances that Miranda was

designed to counteract:

“The Court concluded that compulsion is

‘inherent in custodial surroundings, . . . and,

consequently, that special safeguards were

required in the case of ‘incommunicado

interrogation of individuals in a police-

dominated atmosphere.’” (footnote and

citations omitted).

425 U.S. at 345-346. The Court rejected Beckwith’s claim that his

stressful situation was somehow the functional equivalent of the

custodial setting:

“Petitioner’s argument that he was placed

in the functional, and, therefore, legal,

equivalent of the Miranda situation asks us

now to ignore completely that Miranda was

grounded squarely in the Court’s explicit and

detailed assessment of the peculiar ‘nature and

setting of...in-custody interrogation.

999

37a

Appendix B

325 U.S. at 346. The Supreme Court further pointed out that the

fact that the police have a strong case against the suspect and that

the suspect is the “focus” of the investigation does not transform a

non-custodial setting into a custodial one:

“An interview with Governmeni agents in a

situation such as the one shown by this record

simply does not present the elements which the

Miranda Court found so inherently coercive as

to require its holding. Although the ‘focus’ of

an investigation may indeed have been on

Beckwith at the time of the interview in the

sense that it was his tax liability which was

under scrutiny, he hardly found himself in the

custodial situation described by the Miranda

Court as the basis for its holding.”

425 U.S. at 347.

In Oregon v, Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50

L.Ed.2d 714 (1977), a burglary suspect was actually invited to

come to the police station, where he sat across a desk from his

interrogator behind closed doors. The police interrogator,

moreover, falsely stated that the suspect’s fingerprints had been

found at the burglary scene. At the end of the interrogation,

however, the suspect was not arrested and was released. The

Oregon supreme Court reversed a subsequent conviction, holding

that “the interrogation took place in a coercive environment of the

sort to which Miranda was intended to apply. The Supreme Court

of the United States reversed, holding that the situation was non-

custodial:

“[{T]here is no indication that the questioning

took place in a context where respondent’s

38a

Appendix B

freedom to depart was restricted in any way. He

came voluntarily to the police station, where he

was immediately informed that he was not

under arrest. At the close of a 1/2 hour

interview respondent did in fact leave the

police station without hindrance. It is clear

from these facts that Mathiason was not in

custody ‘or otherwise deprived of his freedom

of action in any significant way.’ ”

429 U.S. at 495. The Supreme Court further explained that the

stress, guilt and anxiety inherent in every situation where a suspect

is being interrogated by those who believe him guilty of crime does

not add up to the functional equivalent of compulsion represented

by custodial interrogation:

“Any interview of one suspected of a crime by

a police officer will have coercive aspects to it,

simply by virtue of the fact that the police

officer is part of a law enforcement system

which may ultimately cause the suspect to be

charged with a crime. But police officers are

not required to administer Miranda warnings

to everyone whom they question.”

429 U.S. at 495.

Acompulsory summons to appear and to testify before a grand

jury is far more coercive than the home interview conducted in this

case. Even with respect to that degree of compulsion, however,

United States v. Mandujano, 425 U.S. 564, 580, 96 S.Ct. 1768, 48

L.Ed-2d 212, 224 (1976), made it clear that that was not custodial

within the contemplation of Miranda and that Miranda was aimed

at pressures of a far more daunting and quite different quality:

39a

Appendix B

“Indeed, the Court’s opinion in Miranda

reveals a focus on what was seen by the Court

as police ‘coercion’ derived from ‘factual

studies [relating to] police violence and the

“third degree” . . . physical brutality—beating,

hanging, whipping—and to sustained and

protracted questioning incommunicado in

order to extort confessions ...’. . . To extend

these concepts to questioning before a grand

jury inquiring into criminal activity under the

guidance of a judge is an extravagant

expansion never remotely contemplated by this

Court in Miranda.” (citations omitted).

For a thorough review of many of the various factors that bear

upon the issue of custody, see Cummings v. State, 27 Md~App.

361, 369-381, 341 A.2d 294 (1975).

The September 6 interview by Corporal Norman of the

appellant at the appellant’s home was not remotely custodial in

nature. Miranda, under the circumstances, was completely

inapplicable.

Due Process:

Pre-Miranda Voluntariness

In conducting a dogged defense in depth, the appellant argues

additionally that even if Miranda and the Fifth Amendment

privilege were not violated, there was nonetheless a violation of

general due process under the pre-Miranda regime of

involuntariness;. The appellant’s effort is flawed in two respects.

Appendix B

A. The General Flaw:

At the more general level, the appellant invites us toemploy a

frame of analysis that was essentially replaced by the Supreme

court 25 years ago in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct.

1602, 16 L.Ed.2d 694 (1966), as being too cumbersome and time-

consuming. In 1936, Brown v. Mississippi, 297 U.s. 278, 56 S.Ct.

461, 80 L.Ed. 682, reviewed for the first time the constitutionality

of a challenged confession coming out of a state court. It did so

under the due process clause of the Fourteenth Amendment.

Between then and 1964' it considered approximately 35 state

confession cases, placing exclusive reliance on the due process

clause. What emerged was the so-called “voluntariness” test,

which found ultimate expression in Culombe v. Connecticut, 367

U.S. 568, 602, 81 S.Ct. 1860, 6 L.Ed.2d 1037, 1057-1058 (1961):

“The ultimate test remains that which has been

the only clearly established test in Anglo-

American courts for two hundred years: the test

of voluntariness. Is the confession the product

of an essentially free and unconstrained choice

by its maker? If it is, if he has willed to confess,

it may be used against him. If it is not, if his will

has been overborne and his capacity for self-

determination critically impaired, the use of his

confession offends due process.”

1. Within a year after Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792,9L.

Ed . 2d 799 ( 1963 ) incorporated the Sixth Amendment right to counsel into the due

_ process clause, Escobedo v. Illinois added a right-to-counsel violation to the arsenal

of constitutional challenges to the admissibility of confessions. The limited utility of

that weapon, however, is that it, like all Sixth Amendment rights, is available only to

one who has achieved the status of being “the accused.”

4la

Appendix B

That development paralleled developments in the federal courts.

Whereas the criterion for determining inadmissibility in a state

_ trial was involuntariness within the contemplation of the due

process clause, the counterpoint criterion for determining

inadmissibility in a federal trial was compulsion within the

contemplation of the Fifth Amendment privilege. Bram v. United

States, 168 U.S. 532, 18 S.Ct. 183, 42 L.Ed.2d 568 (1897).

A doctrinal marriage was made in 1964 when the Supreme

Court overturned half a century of precedents and held that the

Fifth Amendment privilege was incorporated into the Fourteenth

Amendment. Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12

L.Ed.2d 653 (1964). Although Malloy v. Hogan did not itself deal

with a confession, it supported its incorporation argument by

pointing out that a large part of the Fifth Amendment privilege, that

prohibiting compelled confessions, was already applicable to the

states by virtue of the Fourteenth Amendment’s ban upon

involuntary confessions:

“[T]oday the admissibility of a confession ina

state criminal prosecution is tested by the same

standard applied in federal prosecutions since

1897, when, in Bram v. United States...the

Court held that ‘[i]n criminal trials, in the

courts of the United States, wherever a

question arises whether a confession is

incompetent because not voluntary, the issue is

controlled by that portion of the Fifth

Amendment to the Constitution of the United

States commanding that no person “shall be

compelled in any criminal case to be a witness

against himself.” ’ ” (citation omitted).

42a

Appendix B

378 U.S. at 7. It was clear that a compelled confession according to

the Fifth Amendment and an involuntary confession according to

the Fourteenth Amendment were one and the same:

“Under this test, the constitutional inquiry is

not whether the conduct of state officers in

obtaining the confession was shocking, but

whether the confession was ‘free and

voluntary.’. . . In other words the person must

not have been compelled to incriminate

himself.” (citations omitted).

378 U.S. at7.

At the next available opportunity following the doctrinal

marriage, Miranda v. Arizona moved the great bulk of

constitutional confession law under the Fifth Amendment

umbrella. At the most basic level, Miranda accomplished two

things. The testimonial privilege, long a familiar fixture in the

courthouse, had been massively moved out to the station house.

Whereas the implementation of that privilege had been a

comfortable tradition in the courthouse, with lawyers and judges

and clerks and 200 years of precedent habituated to their

implementing roles, implementation in the strange, new setting

was problematic. Without the familiar cast of implementing

personnel on hand at the station house, it fell to the lot of Miranda

to perform their role in the new and untraditional locale.

In the course of implementing the privilege, Miranda served a

second function as well. It was deliberate!y designed to substitute a

quick and efficient litmus paper test for what had become an

interminable adjudicative nightmare. In either the linguistic

tradition of involuntariness or the indistinguishable linguistic

43a

Appendix B

tradition of compulsion, the state of the confessor’s mind had been

assessed according to the totality of the circumstances. That

totality approach committed the suppression hearing judge to the

seemingly endless consideration of age, I.Q., competence, sanity,

psychological makeup, childhood, prior criminal experience,

giving or withholding of warnings, state of custody, availability of

visitors, access to telephone, place and duration of interrogation, et

cetera ad infinitum. Miranda sought to curtail that time-

consuming exercise by giving a defendant the benefit of a bright

line formula. The simple establishment of custody and

interrogation would give rise to the presumption of compulsion

(for Fifth or Fourteenth Amendment purposes) and require the

therapeutic benefits of the Miranda catechism. Miranda made it

easier to prove compulsion or involuntariness, not more difficult.

To the extent to which Miranda’s custodial interrogation and

traditional involuntariness are not coterminous concerns,

traditional involuntariness invariably contemplates a degree of

malevolence and coercive influence that goes beyond the

presumptive coercion of custodial interrogation, not something

that falls short of it. Thus, for instance, a violation of only

Miranda’s implementing rule — a “mere Miranda” violation —

although calling for the suppression of the confession on the merits

of guilt or innocence, does not trigger second-level suppression

under the “fruit of the poisonous treé” doctrine. Michigan v.

Tucker, 417 U.S. 433, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974);

Oregon v. Elstad, 470 U.S. 298, 105 S.Ct. 1285, 84 L.Ed.2d 222

(1985), or preclude the use of the Miranda-violative statement for

impeachment purposes. Harris v. New York, 401 U.S. 222, 91 S.Ct.

643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct.

1215, 43 L.Ed.2d 570 (1975). When the unconstitutional cut, on

the other hand, goes deep enough to touch the raw central nerve of

the undergirding constitutional guarantee itself, the offending

da

Appendix B

statement may not be used for any purpose at all. Mincey v.

Arizona, 437 U.S. 385, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). And

see Kidd v. State, 33 Md.App. 445, 366 A.2d 761 (1976); State v.

Kidd, 281 Md. 32, 375 A.2d 1105 (1977).

What the appellant here seeks to do is to take that relationship

between the greater fault (involuntariness) and the lesser fault (a

Miranda violation) and to turn it inside out. From several

unexceptionable precedents establishing that an instance of true

involuntariness may be more grievous than a Miranda violation, he

leaps to the cpposite conclusion that thére may be instances of

involuntariness not amounting to a Miranda violation. While that

may be possible, that coercion or inducement can occur after the

Miranda procedure is completed, there is no indication of that

occurring here.

The appellant invites us to abandon the “bright line” virtues of

Miranda’s easily administered test and to return to the

interminable adjudicative nightmare of the pre-Miranda “totality

of circumstances” regime. This would undo, in major measure, the

uniformity and the administrative efficiency that Miranda was

designed to accomplish and has accomplished. For reasons of

policy alone, the appellant’s invitation must be declined.

B. The Specific Flaw:

Even if we were to accept, however, the appellant’s invitation

to assess voluntariness under circumstances not amounting to a

Miranda violation, the exercise would yield the appellant nothing.

In constructing his argument in this regard, the appellant has

culled, highly selectively, isolated sentences and phrases from four

or five pre-Miranda, voluntariness cases and artfully woven them

together so as apparently to cover his situation vis-a-vis Ms. Meyer

45a

Appendix B

and Corporal Norman “There is torture of mind as well as body; the

will is as much affected by fear as by force,” Payne v. Arkansas,

356 U.S. 559, 566, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958); “[NJeither

the body nor mind of an accused may be twisted until he breaks,”

Culombe v. Connecticut, 367 U.S. 568, 584, 81 S.Ct. 1860, 6

L.Ed.2d 1037 (1961); “[T]he product of coercion, either physical

or psychological cannot stand,” Rogers v. Richmond, 365 U.S. 534, ~

540, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); “[T]he blood of an

accused is not the only hallmark of an unconstitutional

inquisition.” Blackburn v. Alabama, 361 U.S. 199, 206, 80 S.Ct.

274, 4 L.Ed.2d 242 (1959).

Far from establishing instances of involuntariness under

circumstances less coercive than Miranda’s custodial

interrogation, each of these cases involves the very danger of

custodial interrogation that Miranda was designed to counter. In

Payne v. Arkansas, a 19-year-old with a fifth-grade education was

held incommunicado for over 48 hours, without counsel and

without permission to make a telephone call, and was warned by

the Chief of Police that a potential lynch mob of thirty to forty

people was gathering outside and that the Chief’s protective

intervention was contingent upon the suspect’s confessing. In

Culombe v. Connecticut, the suspect, in police custody, was

accosted by teams of interrogating officers over a period of ten

days. In Rogers v. Richmond, the suspect was transported from the

jail to the State’s Attorney’s Office, was interrogated by a team of

three policemen for approximately nine hours, and was threatened

that his wife would be arrested if he did not confess. In Blackburn v.

Alabama, the suspect, under arrest, was interrogated by three

policemen for between eight and nine hours in closely confined

quarters—a room measuring, at most, six feet by eight feet.

Had the interrogations in these cases taken place after 1966,

they would have represented clear-cut violations of Miranda v

46a

Appendix B

Arizona. It is, therefore, impossible to cite them, as the appellant

does, for the proposition that the appellant’s non-custodial, non-

Miranda-violative interview with Corporal Norman nonetheless

overbore his will to resist. Clearly, the circumstances of the

appellant’s home interview in this case do not come close to

establishing that his incriminating statements were involuntary

within the traditional contemplation of the due process clause.

Marylarid Violations

The appellant now claims, for the first time on appeal, that the

introduction of his incriminating statements violated, inter alia,

Articles 22 and 24 of the Maryland Declaration of Rights. At the

outset, we will assume that his second constitutional citation is

meant to be to Article 23, dealing with due process of law, and not

to Article 24, dealing with slavery. The appellant also claims a

violation of the Maryland common law.

Quite aside from the fact that Articles 22 and 23 are in pari

materia with their respective federal counterparts, the Fifth

Amendment privilege against compelled self-incrimination and

the Fourteenth Amendment guarantee of due process of law, the

short answer is that nothing in this regard was ever raised before

the trial court. No mention of alleged violations of Maryland law

was made in the course of the suppression hearing and the

suppression judge, therefore, was never called upon to make a

ruling in that regard.

The Motion to Suppress itself was an omnibus motion dealing

with search and seizure issues, with confessions, and with pretrial

identification. The total content of the Motion with respect to

confessions was:

l alii

47a

Appendix B

“2. That all admissions, statements, or

confessions of the defendant be suppressed

because they were obtained unlawfully,

involuntarily, forcibly, and in violation of the

defendants Constitutional and other legal

rights.” :

Stapled to the Motion was a single page entitled “Points and

Authorities.” It listed the following:

“U.S. Constitution

Maryland Declaration of Rights,”

without any more specific citation to any section of either

document. It then catalogued 38 cases, federal and state, covering a

range of constitutional topics, embracing somewhat over 800

pages of case law, focusing on none of those 800 or more pages in

particular and referring to no specific principle of law covered by

any of those 38 opinions.

The suppression hearing judge was not called upon, by the

most strained analysis or attenuated reasoning, to render any

decision with respect to either Article 22 or Article 23 of the

Maryland Declaration of Rights or with respect to Maryland

common law. Presiding over the suppression hearing was Judge

Raymond E. Beck, Jr. At the end of that hearing, Judge Beck ruled

that the various incriminating statements were admissible in

evidence.

At the outset of the trial on the merits before Judge Gilmore,

the appellant never sought to have the suppression issue

reconsidered or relitigated. When Corporal Norman introduced the

48a

Appendix B

tape recording of his September 6 interview with the appellant, no

defense objection was made.

It was only at the end of the entire case, as the appellant was

moving for a judgment of acquittal, that he entered into a rambling

and undifferentiated rehash of Judge Beck’s failure to suppress the

statements, of the failure of the court to dismiss the indictments,

and of the failure of the court to rule that the two daughter-victims

should not have been allowed to testify. It was in the course of this

ramble that a passing allusion was first made to Maryland law.

Quite aside from other inadequacies, it came too late. There was

never any suggestion that Judge Gilmore was opening those issues

up for reconsideration at that late hour. He simply announced, with

some resignation, “All of your motions are denied.” We do not

deem the appellant’s eleventh-hour allusions or references to long

settled issues to be an adequate revival or preservation of them for

appellate review.

JUDGMENTS AFFIRMED:

COSTS TO BE PAID BY APPELLANT.

49a

APPENDIX C — OPINION OF CIRCUIT COURT FOR

CARROLL COUNTY, MARYLAND, FEBRUARY 27, 1990

THE COURT: Well, when the events of the past came to light

in 1989, apparently sometime in June, perhaps prior to June, the —

Mr. Reynoids was referred or someiow got to pastoral counseling

and, although it didn’t come out in testimony today, other than that

the pastor was too busy to continue to counsel with him,

now,there’s a situation where counseling would have been

privileged. Without Mr. Reynolds waiver, the pastor could not

have disclosed any information like the psychiatrist and priests

and other types of privileges.

However, when he was referred by the pastor who knew

something about the facts of the case to the State’s services, State

— Children and Family Counseling, and when the interviewer

learned the thrust of the nature of the problems,she produced the

waiver indicating clearly to Mr. Reynolds that anything that was

divulged of a possible incriminating nature would be referred to

authorities. Now, I don’t know that — Mr. Reynolds says that she

wasn’t — she didn’t give him options and he was — he was wanted

counseling —he wanted counseling; in fact, said he was

desperate for counseling even though the events hadn’t occurred

for some thirteen years, according to his testimony and,

apparently, they had come to light and the gentleman wanted

counseling, and the Court doesn’t know what kind of options were

given him other than he couldn’t get counseling there unless he

signed a waiver; that’s not to say that he couldn’t seek counseling

back with the pastor or with a psychiatrist or psychologist where

communications would have been privileged. In any event, he

signed the waiver and within a relatively short period of time, the

— Mrs. Meyers — Marcia Meyers advised him that the State

Police wanted to meet with him.

Now, the Court feels that Mr. Reynolds, who has a twelfth

50a

Appendix C

grade education, is articulate; he may have been emotionally

controlled at that point in time, but certainly knows that a new

dimension entered the case at that point. He was for counseling and

then suddenly the State Police are injected into the case and he was

given some options about: Would he like to meet? If so, where;

suggested that the meeting take place at the office of Ms. Meyers

and, of course, it was subsequently arranged.

Upon the police arriving at the office that day, it was not a

custodial in — interrogation within the meaning of the term

“custody”, as the Court understands it, was told, at least once,

Court’s recollection several times that he didn’t have to speak with

the officer and could leave any time that he wanted to or the officer

would leave or, in the course of the questioning, could refuse to

answer or stop and — and then Mr. Reynolds said, jokingly, that —

or at least lightly, if not jokingly, “Don’t I have some rights?” And,

the trooper then testifies that he uses his card to give specifically

the warning set forth in the Miranda and cases that follow Miranda

and, again, I believe that the Defendant may have asked for that;

maybe the trooper should have, as a matter of course, given him

those Miranda rights, but in any event, there was no question that it

had took place at that point until Miranda rights were read.

And, an interview was — was held and although a recording

machine was an attempt that didn’t work, several notes were taken

and the trooper testified from his notes as to what was said at that

time. Then with regard to any gaps that might need to be filled in, ~

the — Mr. Reynolds suggested that his daughters be contacted,

that — and provided the officer with information as to who and

where and so forth, and then a couple of months passed until

Corporal Norman was able to contact Crystal and Vivian. I’m not

sure of the exact sequence, but apparently a phone call on

September 6 — 6th to Crystal where some information was

Sla

Appendix C

confirmed, new information was developed, and trooper returned

to the — or went to the first time — for the first time to Mr.

Reynolds’ home, waited for him, once again told him he was not

under arrest, the investigation was continuing, he had contacted his

daughter, as the Defendant had suggested, got some additional

information, said he didn’t want to talk about it and, again, said that

he would stop anytime he wanted to and leave, and the Defendant

told a long and somewhat sad story confirming, and in some cases

clarifying, in others, and not remembering in other cases what had,

in fact, taken place between he and Crystal, Vivian, Marian and

Susan; it wasn’t a very pretty picture that was painted.

But, the Court can’t find that any of the statements that were

given by the Defendant were under duress or while the Defendant

was under any type of custodial interrogation. I suppose the

biggest surprise, as stated by the Defendant, is that he was seeking

counseling and didn’t think that family members would testify

against him or at least appear as witnesses against him. But, what

he felt or thought, notwithstanding, I — I don’t have a problem of

constitutional proportions with regard to the — the statement or

statements. I think that they were clearly voluntary on the part of

the Defendant, there was no coercion and, therefore, I must do —

deny your Motion to Suppress.

MS. HILL: Thank you.

MR. BOUREXIS: Thank you, Your Honor.

(The hearing concluded at 6:20 p.m.)