Rush v. State

939 A.2d 689

403 Md. 68

Cindi Renee Katherine RUSH v. STATE of Maryland.

No. 31, Sept. Term, 2007.

Court of Appeals of Maryland.

January 11, 2008.

David A. Martella (Barry H. Hefland, Rockville), on brief, for petitioner/cross-respondent.

Diane E. Keller, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen.), on brief, for respondent/cross-petitioner.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER, (Retired, specially assigned) DALE R. CATHELL, (Retired, specially assigned), JJ.

BATTAGLIA, J.

The case sub judice presents this Court with the issue of whether a police detective's modification of the Miranda warnings to state that Petitioner could be appointed counsel "at some time" satisfied the requirements of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). This case also presents us with determining the scope of our appellate jurisdiction to consider a "cross-appeal" by a defendant when the State notes an interlocutory appeal from the grant of a motion to suppress under Section 12-302(c)(3) of the Courts and Judicial Proceedings Article.¹

Rush, the defendant below, filed a Petition for Writ of Certiorari, raising the following question for our review:

Did the Court of Special Appeals err in reversing the findings of the trial Court that an interrogating detective's modification of the Miranda warnings to suggest that she would be appointed counsel "at some time" improperly implied that the defendant could not have appointed counsel during her interrogation?

The State filed a Conditional Cross-Petition for Writ of Certiorari, presenting us with two additional questions:

1. Did the Court of Special Appeals lack jurisdiction to consider Rush's cross-appeal where the State noted an interlocutory appeal from the grant of a motion to suppress under Section 12-302(c)(3) of the Courts and Judicial Proceedings Article?

2. Assuming arguendo that an appellate court has jurisdiction to consider Rush's interlocutory cross-appeal, does the record in this case establish that Rush's statement to the police was voluntary and not the product of any improper inducement?²

We shall hold that the advisements, as modified, did satisfy the requirements of Miranda and although Rush did not have the right to cross-appeal, she did have the right, in the State's appeal, to defend the ruling of the trial court on alternative grounds.

I. Introduction

On May 1, 2006, Petitioner, Cindi Renee Katherine Rush, was arrested by Corporal Chinn and other members of the Prince George's County Police Criminal Investigation Division on a warrant charging her with murder in the first degree of Patricia Caniglia. Rush was transported to the District III Station where she was interviewed by Detective Kerry Jernigan.³ The interview was digitally recorded, saved onto a DVD, and later transcribed. It began:

DETECTIVE JERNIGAN: It's Cindi, right?

THE DEFENDANT: Mm-hmm.

DETECTIVE JERNIGAN: How are ya?

THE DEFENDANT: All right.

DETECTIVE JERNIGAN: My name's Detective Jernigan.

THE DEFENDANT: Mm-hmm.

DETECTIVE JERNIGAN: Do you know why you're here?

THE DEFENDANT: No. I'd really like to know.

DETECTIVE JERNIGAN: Okay. Well, I'm gonna tell ya. We're investigating the death of — was it Ms. Caniglia?

THE DEFENDANT: Uh-huh.

DETECTIVE JERNIGAN: I know you know her.

THE DEFENDANT: Yeah.

DETECTIVE JERNIGAN: Okay.

THE DEFENDANT: I went to her funeral.

DETECTIVE JERNIGAN: Okay. And what I wanna do is talk to you about that incident where she was killed.

THE DEFENDANT: Okay.

DETECTIVE JERNIGAN: Okay?

THE DEFENDANT: Okay.

DETECTIVE JERNIGAN: Do you have any problems talkin' to me?

THE DEFENDANT: No. That's fine.

DETECTIVE JERNIGAN: All right. You ever been —

THE DEFENDANT: Anything you wanna know.

DETECTIVE JERNIGAN: You ever been arrested before or —

THE DEFENDANT: No.

DETECTIVE JERNIGAN: — dealt with the police at all?

THE DEFENDANT: No.

DETECTIVE JERNIGAN: All right. Before I can talk to ya, I'm sure you're aware, you watch TV, I have to advise you of your constitutional rights. I can't ask you questions until I've done that.

THE DEFENDANT: Okay.

DETECTIVE JERNIGAN: And give you a opportunity —

THE DEFENDANT: Okay.

DETECTIVE JERNIGAN: — to decide if you wanna talk to me or not. But that's what I wanna talk to you about. I understand you used to work for them at one time or —

THE DEFENDANT: Yeah, mm-hmm.

DETECTIVE JERNIGAN: — know the, know Anthony?

THE DEFENDANT: I used to live with them. I used to work for them about three years ago.

DETECTIVE JERNIGAN: Okay.

THE DEFENDANT: Mm-hmm.

DETECTIVE JERNIGAN: All right. Well, let's get the formalities out of the way.

THE DEFENDANT: Okay.

DETECTIVE JERNIGAN: Need anything to drink or anything or —

THE DEFENDANT: No. I'm okay.

DETECTIVE JERNIGAN: Okay.

THE DEFENDANT: Actually, I was wonderin', I don't know why I'm even here. The detective, police showed up at my door and arrested me, said I had a warrant.

DETECTIVE JERNIGAN: Okay. Cindi, how far'd ya get in school?

THE DEFENDANT: Ninth grade.

DETECTIVE JERNIGAN: Do you know how to read?

THE DEFENDANT: Yeah, I've taken GED classes and I just haven't been able to go take the test. I'm very (unintelligible). I have my CNA license and everything.

DETECTIVE JERNIGAN: Okay. All right. Just to prove to me that you know how to read —

THE DEFENDANT: Mm-hmm.

DETECTIVE JERNIGAN: — I'm gonna let you read a portion of this statement for me, okay?

THE DEFENDANT: Okay.

DETECTIVE JERNIGAN: Can you move that chair on up? Read this first sentence —

THE DEFENDANT: Mm-hmm.

DETECTIVE JERNIGAN: — on the top line for me.

THE DEFENDANT: "I am now going to read to you your rights under the law."

DETECTIVE JERNIGAN: Very good. All right. I'm gonna read the rest to you out loud and then we'll go over it together, okay?

THE DEFENDANT: Okay.

DETECTIVE JERNIGAN: "I'm now going to read you your rights under the law. If you do not understand something that I say to you, please stop me and I will explain it to you. You have the right to remain silent. If you choose to give up this right, anything that you say can be used against you in court. You have the right to talk to a lawyer before you're asked any questions. You have the right, you have, you have the right to have a lawyer with you while being questioned. If you want a lawyer and can't afford one, one will be provided to you at some time at no cost." If at some point in time during our questioning you decide you don't wanna talk anymore, that's your right as well. Okay?

THE DEFENDANT: Mm-hmm.

DETECTIVE JERNIGAN: All that make sense to ya?

THE DEFENDANT: Yeah.

DETECTIVE JERNIGAN: All right. So we go through a series of questions here. The first one is you understand what I just, I, I just read to ya?

THE DEFENDANT: Yes.

DETECTIVE JERNIGAN: You're willing to talk to me at this time without a lawyer?

THE DEFENDANT: Yes.

DETECTIVE JERNIGAN: Okay. I haven't promised you anything or given you any inducements to talk to me at this time; is that correct?

THE DEFENDANT: Right.

DETECTIVE JERNIGAN: Okay. And you're not under the influence of any drugs —

THE DEFENDANT: No.

DETECTIVE JERNIGAN: — or alcohol at this time?

THE DEFENDANT: No.

DETECTIVE JERNIGAN: Okay.

THE DEFENDANT: I mean do I need a lawyer or somethin' or is it, am I just in here for —

DETECTIVE JERNIGAN: Well —

THE DEFENDANT: — questioning? I mean —

DETECTIVE JERNIGAN: — if you decide at that, any point in time during our questioning that you feel that that'd be best for you, then you let me know that. Okay?

THE DEFENDANT: I'm just wonderin' why it's asking if I need a lawyer. You know, but anything you guys need to know, I'm willing to help.

DETECTIVE JERNIGAN: Sign there for me, and just note on the bottom below your signature what level of education you have.

(emphasis added). Rush signed the Advice of Rights and Waiver Form, and during the interview made several inculpatory statements which she committed to writing.

She subsequently was indicted on one count of premeditated murder, two counts of robbery with a dangerous weapon, two counts of conspiring to commit robbery with a dangerous weapon, two counts of using a handgun in the commission of a felony or crime of violence, and one count of first degree assault. Rush timely filed a motion to suppress in which she alleged that her statements were obtained by Detective Jernigan following advisements that did not meet the requirements of Miranda and that, in addition, the statements were obtained through threats and inducements and, therefore, were not voluntary. During the suppression hearing, Corporal Chinn and Detective Jernigan testified, after which Rush testified; Detective Jernigan related that he had modified the standard Miranda advisement regarding the appointment of counsel by adding the phrase "at some time at no cost" to indicate that "[a lawyer] is not going to magically appear. It's going to take a little time for a lawyer to be provided to her for a representation. You know, that's something that is going to just take a little time."

Rush contended that her inculpatory statements were obtained in violation of Miranda v. Arizona, 384 U.S. at 436, 86 S.Ct. at 1602, 16 L.Ed.2d at 694,⁴ because Detective Jernigan's modification caused confusion as to whether she could have counsel present during the questioning. Additionally, Rush argued that her question to Detective Jernigan, "do I need a lawyer?," was a request for counsel that should have caused the detective to cease the questioning. Rush also argued that her inculpatory statements were not voluntary as they were obtained through threats and inducements.

Conversely, the State argued that Rush was not confused as to her Miranda rights, that she stated that she understood the advisements which were provided orally by Detective Jernigan and which she also read on the Advice of Rights and Waiver Form. The State also contended that Rush's...