*

STATE OF MARYLAND, IN THE

*
Appellant COURT OF SPECIAL APPEALS
*
v. OF MARYLAND
*
KONNYACK A. THOMAS, September Term, 2011
*
Appellee No. 1242
*

*************
CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this 9th day of November, 2011, three

copies of the Thomas’s Brief in the captioned case were delivered to

Brian S. Kleinbord
Assistant Attorney General
Office of the Attorney General
Criminal Appeals Division
200 Saint Paul Place
Baltimore, MD 21202-2021

___________________________
Ben Miller
 IN THE
COURT OF SPECIAL APPEALS OF MARYLAND
____________________

SEPTEMBER TERM, 2011

____________________

NO. 1242
____________________

STATE OF MARYLAND,

Appellant

v.

KONNYACK A. THOMAS,

Appellee
____________________

APPEAL FROM THE CIRCUIT COURT FOR MONTGOMERY COUNTY

(THE HONORABLE ERIC M. JOHNSON PRESIDING WITH A JURY)
____________________

APPELLEE’S BRIEF
____________________

PAUL B. DEWOLFE
Public Defender

BEN MILLER
Assistant Public Defender

Office of the Public Defender

Appellate Division
6 Saint Paul Street, Suite 1302
Baltimore, Maryland 21202-1608
Work: (410) 767-8528
Facsimile: (410) 333-8801
bmiller@opd.state.md.us

Counsel for Mr. Thomas

 INDEX

____________________

TABLE OF CONTENTS

THOMAS’S BRIEF

Page

STATEMENT OF THE CASE ................................................................................ 1

QUESTIONS PRESENTED .................................................................................... 1

STATEMENT OF FACTS....................................................................................... 1

ARGUMENT ........................................................................................................... 1

THE CIRCUIT COURT CORRECTLY FOUND THAT

STATEMENTS THOMAS MADE TO POLICE WERE
INADMISSIBLE........................................................................................... 2

CONCLUSION ...................................................................................................... 25

____________________

APPENDIX

App. 1 .................................... Transcript of 8/31/10 police interrogation of Thomas

____________________

TABLE OF CITATIONS

Page
Allen v. State, 158 Md. App. 194 (2004)...................................................... 6, 12, 13

Alvarado v. Hickman, 316 F.3d 841 (9th Cir. 2002) .............................................. 10

Ashe v. State, 125 Md. App. 537 (1999) ................................................................ 13

Ball v. State, 347 Md. 156 (1997) .......................................................................... 23

Berkemer v. McCarty, 468 U.S. 420 (1984)............................................................. 5

Bond v. State, 142 Md. App. 219 (2002)......................................................... 8-9, 12

Buck v. State, 181 Md. App. 585 (2008) ............................................. 7-8, 16-17, 19

Cartnail v. State, 359 Md. 272 (2000) ..................................................................... 3

Crosby v. State, 366 Md. 518 (2001) ....................................................................... 3

Fenner v. State, 381 Md. 1 (2004) ........................................................................... 7

Ferris v. State, 355 Md. 356 (1999) ......................................................................... 3

Green v. State, 81 Md. App. 747 (1990) .................................................................. 4

Hillard v. State, 286 Md. 145 (1979) ................................................................ 22-23

Hoey v. State, 311 Md. 473 (1988) ........................................................................ 22

In re Delric H., 150 Md. App. 234 (2003) ............................................................... 4

In re Eric F., 116 Md. App. 509 (1997) ................................................................. 22

JDB v. North Carolina, __ U.S. __, 131 S. Ct. 2394 (2011) .......................... 4-6, 16

Knight v. State, 381 Md. 517 (2004) ................................................................. 22-23

Maryland v. Shatzer, __ U.S. __, 130 S.Ct. 1213 (2010) ..................................... 4-5

Massachusetts v. Hilton, 823 N.E.2d 383 (Mass. 2005) ........................................ 11

Minehan v. State, 147 Md. App. 432 (2002) ..................................................... 12-13

Miranda v. Arizona, 384 U.S. 436 (1966) ....................................... 4-5, 7, 18-19, 23

Oregon v. Mathiason, 429 U.S. 492 (1977) ....................................................... 5, 17

Owens v. State, 399 Md. 388 (2007) .................................................................. 9, 10

ii
Robeson v. State, 285 Md. 498 (1979) ............................................................... 4, 21

Stansbury v. California, 511 U.S. 318 (1994) .......................................................... 8

State v. Rucker, 374 Md. 199 (2003)........................................................................ 4

Stokes v. State, 362 Md. 407 (2001) ......................................................................... 3

Thompson v. Keohane, 516 U.S. 99 (1995) ......................................................... 5, 7

Whitfield v. State, 287 Md. 124 (1980) ........................................................... 6-7, 20

Winder v. State, 362 Md. 275 (2001) .......................................................... 20-23, 25

Yarborough v. Alvarado, 541 U.S. 652 (2004) ...................................................... 10

iii
 IN THE
COURT OF SPECIAL APPEALS OF MARYLAND

____________________

SEPTEMBER TERM, 2011

____________________

NO. 1242
____________________

STATE OF MARYLAND,

Appellant

v.

KONNYACK A. THOMAS,

Appellee
____________________

APPEAL FROM THE CIRCUIT COURT FOR MONTGOMERY COUNTY

(THE HONORABLE ERIC M. JOHNSON)
 ____________________

APPELLEE’S BRIEF
____________________

STATEMENT OF THE CASE

Thomas, Konnyack A. Thomas, accepts the Statement of the Case set fort

in the brief of appellant, State of Maryland.

QUESTION PRESENTED

Did the circuit court correctly rule that statements made by Thomas to police
were inadmissible?

STATEMENT OF FACTS

Thomas accepts the Statement of Facts set forth in the brief of appellant,

State of Maryland, as supplemented and modified in the following Argument.

ARGUMENT

THE CIRCUIT COURT CORRECTLY FOUND THAT

STATEMENTS THOMAS MADE TO POLICE WERE
INADMISSIBLE.

Under the totality of those circumstances, a reasonable person in Thomas’s

situation—having been told police had been told he had sexually abused his

daughter, knowing police lured him to the station without being forthcoming, and

then being confronted in a closed interrogation room with the police officer’s

accusations that they knew he was guilty— would not have felt free to terminate

the interrogation and leave as there was a restraint on his freedom of the degree
associated with formal arrest. As such, the circuit court was correct to rule that

Thomas was in custody and that any statements he then made were inadmissible.

Police called Thomas, an officer in the Army for over seventeen years, on

the phone and asked him to come to the police station to speak with them about

something having to do with one of his children. At that point, Thomas believed it

had to do with his stepson who had recently run away. While on his way to the

police station, however, Thomas spoke to his wife on the phone. She told him that

she and their teenage daughter had spoken to police about her having seen him

having sex with their daughter.

Now knowing that police had spoken to his wife and daughter, Thomas

arrived at the police station and met with two detectives in the lobby. The

detectives immediately led him through one locked door, that required an access

card to open, which only the detective had, and then into an interview room. With

the door closed, but not locked, police instructed Thomas to sit on a couch against

a wall furthest from the door and the two detectives sat in chairs between Thomas

and the door. The detectives told Thomas that he was in a police station, that he

was not under arrest, and that the door was unlocked. The detectives never told

Thomas that he was free to leave, that he did not have to speak with them, that he

could stop speaking with them at any time, or that he was entitled to have an

attorney present.

The two detectives then began interrogating Thomas about the crimes they

had bene told he committed, asking him accusatory questions that led to Thomas

2
making several incriminating statements. The interrogation lasted for over an hour.

Immediately afterwards, police placed Thomas under arrest.

A. Thomas was in custody when interrogated by police.

Review of a circuit court’s ruling on a motion to suppress is based upon the

record of the suppression hearing. Cartnail v. State, 359 Md. 272, 282 (2000). All

evidence is viewed in the light most favorable to the prevailing party. Stokes v.

State, 362 Md. 407, 414 (2001). Appellate courts must extend great deference to

the fact finding of the lower court and accept the first-level facts as found by that

court unless clearly erroneous. Ferris v. State, 355 Md. 356, 368 (1999). However,

an appellate court must make its own independent constitutional appraisal as to the

admissibility of the statements by reviewing the law and applying it to the facts of

the case.1 Crosby v. State, 366 Md. 518, 526 (2001).

1
The State in its brief argued that the suppression court shifted the burden
of proof, applied an incorrect dispositive question, and incorrectly considered the
detectives’ subjective intent. Even if each argument is correct, the arguments are
irrelevant to this Court’s decision. This Court only analyzes the suppression
court’s findings of facts, and not how the court then applied those facts in its
decision making process. Whether Thomas was in custody during the police
interrogation is a legal question which this Court must decide de novo. State v.
Rucker, 374 Md. 199, 207 (2003). Further, this Court may “affirm the trial court if
it reached the right result for the wrong reasons.” In re Delric H., 150 Md. App.
234, 241 n.7 (2003) (internal citation omitted); see also Green v. State, 81 Md.
App. 747, 755 (1990) (“A ruling generally will be affirmed even when the ruling
is right for the wrong reason). As the Court of Appeals has explained:
“Considerations of judicial economy justify the policy of upholding a trial court
decision which was correct although on a different ground than relied upon . . . . It
would be wasteful to send a case back to a lower court to reinstate a decision
which it had already made but which the appellate court concluded should
properly be based on another ground within the power of the appellate court to
formulate.” Robeson v. State, 285 Md. 498, 502 (1979) (internal citation omitted).

3
 The issue in the instant case is whether Thomas was “in custody” in the

context of Miranda v. Arizona, 384 U.S. 436 (1966). The Supreme Court recently

discussed Miranda and its progeny in JDB v. North Carolina, __ U.S. __, 131 S.

Ct. 2394 (2011). There, the Court stated that Miranda was adopted due to a

recognition of the “inherently coercive nature of custodial interrogation” in order

to “safeguard the constitutional guarantee against self-incrimination.” JDB, 131

S.Ct. at 2401. Prior to questioning, a suspect “‘must be warned that he has a right

to remain silent, that any statement he does make may be used as evidence against

him, and that he has a right to the presence of an attorney, either retained or

appointed.’” JDB, 131 S.Ct. at 2401 (quoting Miranda, 384 U.S. at 444.)).

The requirements of Miranda are designed to protect against the “coercive

nature of custodial interrogation.” JDB, 131 S.Ct. at 2402. See also Maryland v.

Shatzer, __ U.S. __, 130 S.Ct. 1213, 1219 (2010) (reasoning that unless “adequate

protective devices are employed to dispel the compulsion inherent in custodial

surroundings, no statement obtained from the defendant can truly be the product of

his free choice”) (internal citations omitted). “Any police interview of an

individual suspected of a crime has ‘coercive aspects to it.’” JDB, 131 S.Ct. at

2401 (quoting Oregon v. Mathiason, 429 U.S. 492, 495 (1977)). However, only

those interrogations that occur while a suspect is in police custody heighten the

risk that statements obtained are not the product of the suspect’s free choice. JDB,

131 S.Ct. at 2401; see also Berkemer v. McCarty, 468 U.S. 420, 437 (1984)

(“Fidelity to the doctrine announced in Miranda requires that it be enforced

4
strictly, but only in those types of situations in which the concerns that powered

the decision are implicated.”). Whether a suspect is “in custody” is an objective

inquiry. The Supreme Court stated:

Two discrete inquiries are essential to the determination: first,

what were the circumstances surrounding the interrogation;
and second, given those circumstances, would a reasonable
person have felt he or she was at liberty to terminate the
interrogation and leave. Once the scene is set and the players’
lines and actions are reconstructed, the court must apply an
objective test to resolve the ultimate inquiry: was there a
formal arrest or restraint on freedom of movement of the
degree associated with formal arrest.

JDB, 131 S.Ct. at 2402 (quoting Thompson v. Keohane, 516 U.S. 99, 112 (1995)).

No one fact is determinative. A reviewing court must examine all of the

circumstances surrounding the interrogation, including any circumstances that

“‘would have affected how a reasonable person’ in the suspect’s position ‘would

perceive his or her freedom to leave.’” JDB, 131 S.Ct. at 2402 (quoting Stansbury

v. California, 511 U.S. 318, 325 (1994)). However, subjective views harbored by

either the interrogating officers or the person being questioned are irrelevant.

Stansbury, 511 U.S. at 323.

Courts in Maryland have defined “custodial interrogation” as “questioning

initiated by law enforcement officers after a person has been taken into custody or

otherwise deprived of his freedom of action in any significant way.” Allen v. State,

158 Md. App. 194, 229 (2004). Though “custody” ordinarily contemplates that a

suspect will be under arrest, the concept of custody is not limited to a formal

arrest; “the ultimate inquiry is simply whether there is a formal arrest or restraint

5
on freedom of movement of the degree associated with a formal arrest.” Allen, 158

Md. App. at 230 (internal citations omitted). The Court of Appeals in Whitfield v.

State, 287 Md. 124 (1980) enumerated several factors relevant to the custody

determination:

Those facts intrinsic to the interrogation: when and where it

occurred, how long it lasted, how many police were present,
what the officers and the defendant said and did, the presence
of actual physical restraint on the defendant or things
equivalent to actual restraint such as drawn weapons or a
guard stationed at the door, and whether the defendant was
being questioned as a suspect or as a witness. Facts pertaining
to events before the interrogation are also relevant, especially
how the defendant got to the place of questioning – whether
he came completely on his own, in response to a police
request, or escorted by police officers. Finally what happened
after the interrogation – whether the defendant left freely, was
detained or arrested – may assist the court in determining
whether the defendant, as a reasonable person, would have
felt free to break off the questioning.

Whitfield, 287 Md. at 141 (internal citations omitted).

Applying facts intrinsic in the custody determination to this case, Thomas

was in custody when he faced police interrogation without having been properly

advised of his rights. No reasonable person in Thomas’s circumstances would

have felt he or she was at liberty to terminate the interrogation and leave.”

Thompson, 516 U.S. at 112.

The pertinent factors that weigh in favor of a finding that Thomas was in

custody are as follows. The interrogation of Thomas occurred inside an interview

6
room at a police station. (I. 4; H. 18).2 While location alone is not dispositive,

questioning that occurs inside a police station has been found to be inherently

custodial. See, e.g., Fenner v. State, 381 Md. 1, 18 (2004) (Miranda warnings are

prescribed to negate the “compulsion” inherent in police station interrogation).

When Thomas arrived at the police station, he was immediately confronted by two

detectives in the lobby. (H. 18). From having spoken with his wife on his way to

the police station Thomas knew that the police – presumably the two detectives he

met in the lobby – knew about the reported sexual abuse. See Buck v. State, 181

Md. App. 585, 622-24 (2008) (finding the defendant in custody based, in part, on

the fact that the defendant knew that the police targeted him for murder). 3 Right

away, the detectives led Thomas deeper into the station – through a door that

2
Thomas accepts the State’s designation of “H.” for the transcript from the
June 28, 2011 suppression hearing. Also, “I.” references the transcript of the
August 31, 2010 police interrogation of Thomas, which was admitted into
evidence at the suppression hearing. For the convenience of the court, a complete
copy of that transcript is attached to this brief. Further, Thomas accepts footnote
five of the State’s brief – the State’s interpretation regarding a discrepancy
between the interrogation transcript and audio of the interrogation.
3
This Court in Buck discussed the role the detective’s knowledge of a
defendant’s criminal behavior plays in the custody determination. A police
officer’s subjective belief as to whether a defendant indeed committed the crime is
irrelevant to determining custody only if the defendant is unaware of the belief.
181 Md. App. at 622. However, when an officer articulates to the defendant his
belief, or the defendant is aware of the officer’s belief, “the custody inquiry is
transformed, and becomes whether a reasonable person in the defendant’s
situation – i.e., having been told by the police that they think he committed the
crime – would think he was free to break off the interview and leave.” Id.; see also
Stansbury v. California, 511 U.S. 318, 320 (1994) (holding that an officer’s
subjective view concerning whether the person being interrogated is a suspect as
irrelevant to the assessment whether the person is in custody only if the defendant
is unaware of that view).

7
closed and locked that Thomas could not open and that could only be opened by

an access card, which Thomas did not have and did not have access to. The

detective had the access card. (H. 20, 24-25). In order to be able to end the

interrogation and leave the police station, Thomas would have needed the access

card himself or needed the detective to open the door with the access card. Neither

detective ever explained to Thomas how he could exit the police station after he

was led past the access door, and no one ever offered to open the access door for

him if he requested.

The detectives then took Thomas through a second door. Thomas was

placed on a couch against the wall furthest from the door. (H. 30, 143-44). The

two detectives sat in two chairs next to the door between Thomas and the closed

door. (H. 19, 143-44); see Bond v. State, 142 Md. App. 219, 234 (2002) (ruling

that the defendant was in custody, in part, because when three police officers

questioned him inside his bedroom, the police placed themselves between the

defendant and the door); Owens v. State, 399 Md. 388, 429 (2007) (finding as a

factor weighing against finding that a defendant was in custody that the police did

not position themselves to prevent or discourage the defendant from leaving).

With the door closed and unlocked, Detective Thorpe explained to Thomas that

the “door is unlocked” and that she would open it for him if she could reach it. (I.

4).

Although the detective explained that she would open the door, the door

remained closed and she never explained to Thomas that he could exit out of that

8
door at any time. Telling someone you will open an unlocked door if requested is

not the same as telling someone they can leave through that door if desired. What

a person in Thomas’s position – if not in custody – would have needed to know

was that he or she had the option to exit through that door at any time. The

detective never explained that at any point. And again, even if Thomas knew he

could exit through the door that the two detectives sat in front of, he still had no

way to exit through the access door. Being placed behind a door one cannot access

and another door that is closed with two detectives between it and you would send

a message to any reasonable person that you are not free to leave and not free to

break off questioning.

After a few background questions, the detective made it clear to Thomas

that she knew of the accusations against Thomas. She said, “Do you have any idea

why you’re here today” and “So why are you here?” (I. 3-4). Thomas said, “It has

to do with my daughter.” (I.4). Then the detective told Thomas, “I did speak with

[your daughter]. And she told me about some things that have been going on for

quite some time between you and her. You want me to tell you what she told me?”

(I. 5). The police questioning a defendant as a suspect, as opposed to merely a

witness, is a factor that weighs in favor of a custody finding. See Owens, 399 Md.

at 429 (citing as a factor in determining custody whether the defendant was

questioned as a suspect or a witness). Thomas was not only questioned as a

suspect, but the detectives confronted him with the evidence they had against him

and asked him repeated detailed questions about his actions. Thomas was told the

9
detective had spoken with his daughter and she had told them what had been going

on; asked questions as to when, where, and how often the abuse had occurred;

asked detailed questions about the various incidents; and questioned about

showing her pornography and taking pictures of her. See Alvarado v. Hickman,

316 F.3d 841, 846 (9th Cir. 2002) (citing as a factor when making a custody

determination “the extent to which [a defendant] is confronted with evidence of

guilt”);4 see also Owens, 399 Md. at 429 (finding the defendant was not placed in

custody, in part, because “[t]he questioning was brief, lasting only 10 to 15

minutes, and involved subjects relating to [the police] investigation, but did not

tend to imply that [the defendant] was responsible for [the victim’s] death”);

Massachusetts v. Hilton, 823 N.E.2d 383, 398 (Mass. 2005) (detailed questioning

that showed the suspect was the focal point of the investigation transformed a

interview into a custodial interrogation).

Examples of the detailed and accusatory questions include, but are not

limited to: “[W]hy are you here?” (I. 4); “You want me to tell you what she told

me?” (I. 5); “When did it start?” (I. 5); “What exactly started in Georgia?” (I. 6);

“Where were you touching her?” (I. 6); “Was there any anal intercourse?” (I. 9);

“Did you ever perform oral sex on her?” (I. 11); “Did you say ‘Come into the

4
The Supreme Court reversed the Alvarado v. Hickman decision of the
Ninth Circuit. See Yarborough v. Alvarado, 541 U.S. 652, 669 (2004) (reversing
decision by the Ninth Circuit due to the court’s improper consideration of the
defendant’s age). The Supreme Court, however, did not state that relying on the
extent to which a defendant is confronted with evidence with guilt was an
impermissible factor.

10
room,’[?]” (I. 11); “Did you get naked?” (I. 12); “Did you start penetrating the

vagina to get her prepared for you?” (I. 13); “And then you put your penis inside

her vagina, correct?” (I. 13); “What did you say to her for her not to say

anything?” (I. 14); “So she knew the routine? That’s what it was, right?” (I. 16);

“What started this?” (I. 20); “Was there ever a time that you showed her

pornography?” (I. 21); “[W]as there ever a time that you took photos of her?” (I.

21); after Thomas said he took “semi” naked pictures of his daughter, the detective

asked, “And some full?” (I. 22); the detective asked repeated questions as to how

many times he had vaginal intercourse and oral sex with his daughter, as well as

repeated questions about anal intercourse despite Thomas’s repeated denials, (I.

24-26); and, “[W]as there ever a time that you took any photos of her with a

Nikon, a regular like SLR or just a digital camera?” (I. 35).

As evidenced by the information the police had prior to the interview,

information Thomas knew they had, as well as the detailed and accusatory

questions throughout the entirety of the interrogation, it is beyond doubt that

Thomas was more than just a suspect. The detectives felt they knew what he had

done and just wanted to hear it from him. Contrast Allen, 158 Md. App. at 235

(police “had not fixed on [defendant] as the culprit when the interview began[,]”

but it was statements made by the defendant during the interview that led the

detectives to believe he had committed the murder). A reasonable person under

such circumstances would view himself in that situation not only as someone who

was a suspect, but as someone who had been caught. Such a person would

11
subsequently consider his freedom of movement deprived in a significant way to

the degree associated with formal arrest.

After being confronted with the knowledge that the detective had spoken to

his daughter, Thomas then began making incriminating statements. (I. 4-5). The

interrogation lasted slightly over an hour, after which, Thomas was placed under

arrest. According to the testimony from Detective Thorpe, the interrogation of

Thomas began at approximately 7:14 p.m., and the transcript from the

interrogation indicates that it ended at 8:22 p.m. (I. 42). Thorpe testified that

Thomas was placed under arrest about twenty minutes after the end of the

interrogation. (I. 32). See Bond, 142 Md. App. at 229 (a factor weighing in favor

of a custody finding is whether the defendant was arrested at the end of the

interrogation or if the defendant was allowed to leave freely); Minehan v. State,

147 Md. App. 432, 443 (2002) (factors weighing against a custody finding were

that at the end of the interrogation police told defendant that they would probably

contact him in the future to “maybe discuss things”).

Detectives did not tell Thomas that he was free to leave at any time.

Detectives also did not tell Thomas that he did not need to answer any of their

questions, that he was free to stop their questioning whenever he wanted, or that

he could have the assistance of attorney. The failure of the detectives to provide

Thomas with such advice weighs heavily in favor of a determination that Thomas

was in custody. Contrast Allen, 158 Md. App. at 236; Minehan, 147 Md. App. at

444; Ashe v. State, 125 Md. App. 537, 550 (1999) (in each of these cases, police

12
affirmatively told the suspect that he was not under arrest and that he was free to

leave without answering questions).

In sum, factors weighing in favor of a custody finding are:

1) before being questioned, Thomas knew the police had been

told that he had sexually assaulted his daughter, (H. 38-39);

2) after entering the police station he was met by the two

detectives who, after only making brief introductions,
immediately brought him into an interview room, (H. 20, 39);

3) to reach the interview room, the two detectives led Thomas

through a locked, closed door that required an access card to
open, a card only the police had, (H. 25);

4) police led Thomas into the interview room and had him sit
on a couch against a wall away from the door, the second
door Thomas went through inside the station, and the
detectives sat in two chairs between Thomas and the exit, (H.
24);

5) the detectives closed the door and remained between

Thomas and the door, (H. 25, 143-44);

6) the detectives told Thomas that they could open the door,
but did not say anything to Thomas about his ability to exit
through that door, (I. 4);

7) detectives never told Thomas he was free to leave;

8) detectives never told Thomas he did not have to speak with

them;

9) detectives never told Thomas he could end the

interrogation at any time;

10) detectives never told Thomas he could have an attorney

present;

11) Thomas’s inherent vulnerability was readily apparent, as

the detective observed that Thomas was clearly “having a

13
 hard time” and “crying” even before the questioning began,
(I. 4);

12) after a few brief background questions, detectives

questioned Thomas in an accusatory manner that sent a clear
message that they not only suspected Thomas of having
committed a crime, but firmly believed he had committed a
crime and they only wanted to now hear it from him, (I. 4, 8);

13) the detectives confronted Thomas with the evidence they

had against him – his own daughter’s words to them that he
had sexually assaulted her, (I. 5);

14) the detectives at no point gave any indication to Thomas

that they did not believe his daughter in any way or that they
questioned anything she had said, sending another clear
message that they not just suspected Thomas in this case but
believed he in fact committed the crimes; and

15) shortly after the interrogation ended, police placed

Thomas under arrest, (H. 32).

The State cites to the following factors as reasons to decide that Thomas

was not in custody: Thomas drove himself to the police station, he was told he was

not under arrest, and police were polite during the interrogation, (State’s Br. at

31). However, a closer look at even those factors reveals they do not weigh in

favor of a finding that Thomas was not in custody.

Even though Thomas drove himself to the police station, it does not mean

he was not in custody. No one fact can be determinative. Also, Thomas did not

simply decide to speak to police or voluntarily choose to go to the police station;

he was summoned there. See Buck, 181 Md. App. at 625 (the defendant did not go

to speak with the police completely on his own and did not contact them initially,

rather he went to the police station only after the police asked him to come to the

14
station to talk). The police called and asked Thomas: “[C]an [you] come to the

station, it has to do with one of [your] children.” (H. 37). Thus, at the time Thomas

agreed to go to the police station, he did not know it was because police believed

he had been sexually assaulting his daughter and did not know it related at all to a

criminal investigation.

Additionally, Thomas’s decision to go to the police station in response to

being asked to come in by the police does not weigh against a custody finding

because Thomas’s career in the military must be considered. The relevant standard

requires this Court to consider a reasonable person in Thomas’s situation. That

situation included his seventeen years in the military. Someone who has spent the

past seventeen years in the military would almost certainly agree to speak with

police when asked because soldiers are taught repeatedly in the military to follow

chain of command and respect authority. While certain individual characteristics

are not relevant, Thomas’s military status would be relevant in the instant case for

two reasons. First, the detectives, having spoken with Thomas’s daughter and

wife, were very likely aware of this fact. Second, the impact of a military career on

a person’s obedience to authority is likely not an individualistic character trait of

Thomas, but one that is reasonably applicable to all such people. See JDB, 131

S.Ct. at 2406 (holding that “so long as the child’s age was known to the officer at

the time of police questioning, or would have been objectively apparent to a

reasonable officer, its inclusion in the custody analysis is consistent with the

objective nature of that test”); Buck, 181 Md. App. at 613 (ruling that it is

15
improper to consider a suspect’s prior history with law enforcement in deciding

the issue of custody because “[i]n most cases, police officers will not know a

suspect’s interrogation history, . . . [and] [e]ven if they do, the relationship

between a suspect’s past experiences and the likelihood a reasonable person with

that experience would feel free to leave often will be speculative”). Thomas’s

military experience helps explain why he agreed to go to the police station,

differentiating Thomas from a reasonable person without military experience who

agrees to go to the police station. Because this characteristic is relevant to the

determination and reasonably objective, this Court should consider it when

making its decision. See JDB, 131 S.Ct. at 2407 (“Not once have we excluded

from the custody analysis a circumstance that we determined was relevant and

objective, simply to make the fault line between custodial and noncustodial

‘brighter.’”).

The police did tell Thomas he was not under arrest. However, just telling

someone they are not under arrest does not mean that a reasonable person in that

same situation would feel as if they were not in police custody. See Buck, 181 Md.

App. at 627 (stating that “[r]egardless of what the detectives said about [the

defendant] not being under arrest and being free to leave . . . any reasonable

person in [defendant’s] situation before he was formally arrested would have

thought he was in police custody and did not have the freedom to cut off his

interactions with the detectives”). “[W]hen a suspect has been told by the police,

clearly and unequivocally, that he is not under arrest and can leave at any time, but

16
the contemporaneous conduct of the police has the effect of nullifying that advice,

the advice ‘will not carry the day.” Id. at 626 (citing Wayne LaFave, CRIMINAL

PROCEDURE (3rd ed. 2007)).

Also, when exactly police told Thomas he was not under arrest is

particularly relevant. The police did not tell Thomas he was not under arrest when

they spoke to him on the phone; nor did they tell when he initially arrived at the

police station. See Mathiason, 449 U.S. at 495 (citing as a factor in finding that the

defendant was not in custody that the police told him immediately that he was not

under arrest). Rather, the police waited to tell Thomas he was not under arrest until

after he had arrived at the police station, after he was led through a locked door

that required an access card, after he was placed into an interview room with the

door closed with two detectives between himself and the door, and after Detective

Thorpe asked Thomas, “Do you have any idea why you’re here today” and

Thomas responded, “I know why I’m here.” (I. 3). They not only waited until after

Thomas said, “I know why I’m here,” but the detectives did not also tell Thomas

that he was free to leave nor did they provide any other guidance to Thomas that

would make him believe the police when they said that he was not under arrest.

Here, when Thomas knew that police had spoken to his wife and daughter and that

the police believed he had sexually assaulted his daughter, and they then

confronted him with specific questions about his actions, simply telling him he

was not under arrest cannot “carry the day.”

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 Lastly, while the police were “polite” and “courteous,” that fact, at best, is a

neutral fact in the custody determination. Although a hostile or threatening

atmosphere may weigh in favor of a finding of custody, the inverse is not

necessarily true. In many situations of actual arrest police remain polite and

courteous. Also, one reason the Supreme Court issued its decision in Miranda was

to guard against “Mutt and Jeff” routines used by police to elicit confessions from

suspects by alternating friendly and unfriendly questioning. See Miranda, 484 U.S.

at 452. If this Court were to apply weight of any significance to the fact the police

were polite, in light of all the other circumstances that point towards Thomas

being in custody, it would send an improper message to law enforcement that

though “Mutt and Jeff” routines may not work as a way to avoid Miranda, just

being polite will.

Police had information Thomas sexually assaulted his daughter due to

conversations they had with Thomas’s daughter and wife. Police then summoned

Thomas to the police station, without telling him why. Thomas, reasonably due in

part to his military background, respected the police’s authority and agreed to go

to the police station. When Thomas arrived, two detectives, who only made brief

introductions, led him through a locked door that required an access card and into

an interview room. The door was closed, Thomas was never told he was free to

leave, and the questioning then began. Only after Thomas told police, “I know

why I’m here,” did the police tell him he was not under arrest. Notwithstanding

such a hollow statement, two detectives then asked Thomas in an accusatory

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nature detailed questions and confronted him with the evidence they had against

him. Shortly after the end of the interrogation, Thomas was placed under arrest.

As nearly every relevant factor within the totality of circumstances to be

considered here militates in favor of a legal finding that a reasonable person in

Thomas’s situation would have thought he was in custody when being interrogated

by Detective Thorpe and Sergeant Birch, this Court should conclude, based upon

its independent review of the record, that Thomas was in custody for purposes of

Miranda. See Buck, 181 Md. App. at 626 (finding that the defendant was in

custody even though police three times told him he was not under arrest and took

steps “to create an interrogation that could be labeled noncustodial” because the

defendant was questioned at the police station, he knew before arriving that he was

a suspect in a murder investigation and learned once at the police station that he

was the focus of the investigation, and was arrested twenty minutes after arriving

home following the completion of the interrogation); see also Whitfield, 287 Md.

at 141-42 (ruling that the defendant was in custody because the defendant was

interrogated in an area alone with the interrogators, he was immediately

confronted with law enforcement’s knowledge of his guilt in order to shock the

needed information from him, and after he retrieved a weapon from his home was

then immediately arrested). Because Thomas was in custody and not provided

with proper Miranda warnings, the decision of the circuit court suppressing his

statements should be affirmed.

B. Thomas’s statements should be suppressed as they were involuntary.

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 Thomas was in custody for Miranda purposes when he made his initial

bare-bones statement to Detective Thorpe and Sergeant Birch that he had been

“touching” his daughter. (I.4-7). Assuming arguendo, that Thomas was not in

custody, this Court should still rule the remainder of his statement was

inadmissible for being involuntary due to improper inducements from the

detective.5

At the beginning of the interrogation, Detective Thorpe asked Thomas if he

knew why he was there, and Thomas responded, “It has to do with my daughter.”

(I. 4). The detective then said to Thomas, “[I]t looks like this is weighing on you.

You look like you’ve been crying and having a hard time,” to which Thomas

responded, “I have.” (I. 4).

5
Even though the suppression court did not make an express ruling, this
Court may still decide whether Thomas’s statements were involuntary due to
improper inducements from the police. The issue was raised before the
suppression court by Thomas’s trial counsel. (H. 13). Also, whether the police
made improper inducements that directly led to Thomas’s incriminating
statements is a mixed question of law and fact. Winder v. State, 362 Md. 275, 310-
11 (2001). In the instant case, there is no dispute as to the relevant first-level facts.
The transcript from the interrogation was admitted as evidence during the
suppression hearing as was a copy of the DVD of the interrogation. Thus, because
the first-level facts are not in dispute, this Court may then make its own
independent constitutional appraisal as to the admissibility of the statements by
reviewing the law and applying it to those facts. See Winder, 362 Md. at 310-11
(“An appellate court undertakes a de novo review of the trial judge’s ultimate
determination on the issue of voluntariness.”). Additionally, the circuit court
suppressed Thomas’s statements due to finding him to be in custody. This Court
may suppress the same statements while relying on different authority. As is
stated, supra, on pages 3-4, footnote 1, an appellate court may uphold a lower
court decision that was right for the wrong reasons. See Robeson v. State, 285 Md.
498, 502 (1979).

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 The detective informed Thomas that she had spoken with his daughter and

Thomas then admitted to “touching” his daughter in her private areas. (I. 5-7).

Thomas, however, did not admit to anything beyond the touching. After Sergeant

Birch said that he knows it is a difficult topic for Thomas to discuss, Thomas said,

“I mean, I know where this is going.” (I. 8). The following then transpired:

Sergeant Birch: Let me tell you what our job is, okay,
before you – as you’re thinking. Your daughter has come to
talk to us about things that happened to her. Sadly enough,
she blames herself for everything. And that’s a terrible thing
that occurs. All right? She loves you. She cares about you.
But she blames herself because she understands what’s going
on. What’s important to her and she expressed it is the only
way she can get through this is to get reassurance that it
wasn’t her fault. When she gets into therapy, she has to
knows it’s not her fault.

[Thomas]: I’ve told her that.

Sergeant Birch: And you know what? I’m sure you have.
But she had the guts and the strength to sit here and tell us
things that happened to her that are very difficult. And I’m
asking you to have the same strength to help us to take
care of her. Okay?

You’re going to have that opportunity down the road. But

we just need to hear it from you what occurred, so we can
get her the help she needs. And that’s going to be therapy,
okay?

(I. 8). The sergeant then asked Thomas to tell him the “last thing that happened”

between himself and his daughter, to which Thomas responded, “Sex.” (I. 8-9).

The interrogation then continued with Thomas repeatedly incriminating himself as

to various incidents where he sexually abused his daughter.

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 Even if a defendant was not in custody, “the confession obtained during a

noncustodial interrogation is presumptively inadmissible, unless it is shown to be

free of coercion.” In re Eric F., 116 Md. App. 509, 516-17 (1997). Only voluntary

confessions are admissible as evidence under Maryland law. Knight v. State, 381

Md. 517, 531 (2004); see also Hillard v. State, 286 Md. 145, 150 (1979) (“No

confession or other significantly incriminating remark allegedly made by an

accused [may] be used as evidence against him, unless it first be shown to be free

of any coercive barnacles that may have attached by improper means to prevent

the expression from being voluntary.”). A confession is voluntary if it is “freely

and voluntarily made” and the defendant making the confession “knew and

understood what he [or she] was saying” at the time he or she said it. Hoey v.

State, 311 Md. 473, 480-81 (1988). In order to be deemed voluntary, a confession

must satisfy the mandates of the U.S. Constitution, the Maryland Constitution and

Declaration of Rights, the United States Supreme Court's decision in Miranda, and

Maryland non-constitutional law. See Ball v. State, 347 Md. 156, 173-74 (1997).

“When a criminal defendant claims that his or her confession was involuntary

because of a promise made to him or her by interrogating officers, the State must

present evidence in order to refute the claim.” Knight, 381 Md. at 532. If the

defense files a pre-trial suppression motion, the State bears the burden to prove, by

a preponderance of the evidence, that “the inculpatory statement was freely and

voluntarily made and thus was the product of neither a promise nor a threat.”

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Winder v. State, 362 Md. 275, 306 (2001). A court must then undertake the

following analysis:

In Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979), the
Court established a two-step analysis that a trial court should
apply to the evidence regarding an alleged promise. First, the
trial court determines whether any officer or agent of the
police force promised or implied to the suspect that he or she
would be given special consideration from a prosecuting
authority or some other form of assistance in exchange for the
confession. Second, if the court determines that such a
promise was explicitly or implicitly made, it decides whether
the suspect's confession was made in apparent reliance on the
promise. Winder, 362 Md. at 309, 765 A.2d at 115
(summarizing the Hillard test). If the court concludes that the
confession was made in reliance on an improper inducement,
the confession may not be admitted as evidence at trial. Id.

Knight, 381 Md. at 533-534.

In the instant case, when applying the two-step analysis from Hillard, it is

clear that Thomas’s confession was made in reliance on an improper inducement,

and as such, may not be admitted as evidence at trial. The first step of the analysis

requires a determination of whether or not there was, either explicitly of implicitly,

a promise made by police to Thomas. The answer is yes.

Sergeant Birch knew Thomas was “having a hard time” and that Thomas

had expressed that he “knew where this is going,” and also acknowledged that he

had told his daughter that “it’s not her fault.” (I. 4, 7). However, Thomas had not

yet admitted to police that he did anything beyond “touching” his daughter’s

private areas. In order to obtain a more detailed confession, the sergeant told

Thomas that his daughter had the “guts and the strength” to tell the police what

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happened. (I. 8). He then said that if Thomas wanted his daughter to get the help

she needed, he needed to have similar strength in order to “help [the police] to take

care of [Thomas’s] daughter.” (I. 8). The sergeant continued to imply that if

Thomas admitted to the police everything that he did, the police could get his

daughter the help she needs: “[W]e just need to hear it from you, what occurred,

so we can get her the help she needs.” (I. 8). Clearly implied in that statement is

that if Thomas wanted the police to get his daughter the help she needed, he

needed to tell them what happened; he needed to allow them “to hear it from” him.

Also implied by that statement was that if Thomas did not have the same strength

as his daughter, if he did not further confess to police, that police would not be

able to get his daughter the help she needs. Such an implied promise that

Thomas’s daughter could get the help that she needed if Thomas talked, which

also implied she could not get help if he did not talk, was an improper inducement.

Not only were there improper inducement made to Thomas, but his

confession was clearly made in reliance on such promises. In fact, the improper

inducement occurred on page eight of the interrogation transcript, and on page

nine, in response to the very next series of questions, Thomas for the first time

admitted to having “sex” with his daughter. (I. 9). He then described in detail

various times he sexually assaulted his daughter. However, none of those

confessions came until after – immediately after – the sergeant made the promise

to get Thomas’s daughter the help she needs if and only if Thomas confessed. See

Winder, 362 Md. at 312-13 (ruling that the connection between the threat,

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promise, or inducement and the confession may be established if the confession

came as result of the improper inducement by the interrogating authorities).

Because police made improper inducements to Thomas to get him to

confess and Thomas then did confess in direct reliance to such inducements, his

confession should be suppressed for being involuntary.

CONCLUSION

For the foregoing reasons, Thomas respectfully requests that this Court

affirm the judgment of the court below.

Respectfully submitted,

Paul B. DeWolfe
Public Defender

Ben Miller
Assistant Public Defender

Counsel for Mr. Thomas

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