Smith v. State

220 Md.App. 256

103 A.3d 1045

Gregory Emilie SMITH

v.STATE of Maryland.

No. 2653, Sept. Term, 2012.

Court of Special Appeals of Maryland.

Dec. 1, 2014.

Juan P. Reyes (Paul B. DeWolfe, Public Defender, on the brief), Baltimore, MD, for Appellant.

Carrie J. Williams (Douglas F. Gansler, Attorney General, on the brief), Baltimore, MD, for Appellee.

Panel: MEREDITH, GRAEFF, LEAHY, JJ.

Opinion

LEAHY, J.

During a post-arrest interview, Appellant Gregory Emilie Smith waived his Miranda rights and then described multiple occasions on which he engaged in “consensual” anal intercourse with four-year-old K.N.¹ Before his trial, Appellant moved to suppress this confession, claiming that it was involuntary and obtained in violation of Maryland's common law rule prohibiting law enforcement officers from promising or implying that a suspect will gain the advantage of non-prosecution or some other form of assistance in exchange for a confession. In denying this motion, the Circuit Court for Montgomery County concluded that no reasonable layperson would believe that they would be afforded leniency upon confessing to “consensual” anal sex with a four-year-old. At trial, Appellant's recorded confession was played for the jury, and on May 3, 2012, the jury convicted Appellant of one count of sexual abuse of a minor, two counts of first-degree sex offense, and one count of second-degree child abuse. In his timely appeal, Appellant presents only one question:

“Did the lower court err in denying Appellant's motion to suppress?”

We affirm. We find that the law enforcement officers made no explicit promises, and that a reasonable layperson in Appellant's position would not have inferred from the officers' statements that he could gain the advantage of non-prosecution or leniency by confessing to “consensual” anal intercourse with a four-year old. See Hill v. State, 418 Md. 62, 77, 12 A.3d 1193 (2011).

I.

A. The Interview

Appellant was arrested on September 14, 2010, in the District of Columbia on an outstanding warrant. Detectives Michael Carin and Errol Birch of the Montgomery County Police went to the D.C. police station to interview Appellant. The DVD recording of the interview shows Appellant wearing what appears to be sleepwear. He is not handcuffed, but one of his legs is restrained to a device attached to the floor. The interview room contains one desk and three chairs. Although the detectives are in plainclothes, it is unclear from the video whether the detectives were armed. Both of the detectives, as well as Appellant, spoke in clear, calm voices throughout the interview, and there is no indication that Appellant was threatened in any way.

The detectives introduced themselves as police officers, told Appellant that they wanted to interview him about K.N., and then read Appellant his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Appellant acknowledged that he understood his rights, agreed to speak with the detectives, and then initialed and signed the Advice of Rights Form.

Appellant told the detectives that he was a computer programming student at Strayer University. He also said he was not on any medications at that time, which was noted as 9:10 a.m. He confirmed that a “couple of years ago” he lived in an apartment on Georgia Avenue with Maria N. and her children, K.N. and D.N.Detective Carin explained the allegations: “Okay. There's no way to sugarcoat this, because the information that we have seems pretty bad, okay? Basically, she disclosed to her Mom ... Okay. K.N. and D.N. were interviewed last week, and basically they were talking about ... you beat him up one day; and ... you engaged K.N. in anal intercourse. Okay. That's basically why we are here.” The detectives detailed K.N.'s accusations, including that Appellant engaged in this behavior on multiple occasions. They also indicated they had an eyewitness.

Detective Carin told Appellant that he and Detective Birch did not execute warrants or work on robbery cases, but they had to attend school to learn how to be more like social workers. He continued, “[O]ur main job isn't to put cuffs on you and throw you in jail .... [o]ur goal is to get the counseling for her so she can become whole again.” In order to do that, he explained, they “have to have an understanding of what happened.” He then queried, “you and I know it wasn't her fault, correct?” Appellant replied, “I don't even know what you're talking about. I never once put my hands on a little girl.” After Detective Carin stated that “the bottom line is you and I know it happened,” Appellant replied, “No, it didn't.”

Next the detective told Appellant that not only did they have an eyewitness, but that a doctor examined K.N. and “there's damage to her [anus].”² Appellant responded, “I don't care if it happened to her. It wasn't by me.” The detective then challenged Appellant's story, relating that K.N. identified Appellant as the perpetrator; Maria talked about the time when Appellant beat up D.N.; there was a medical report; and a witness walked in on Appellant and K.N. The detective stated, “you know exactly what I'm talking about,” Appellant replied, “No, I don't. I really don't.”

It was at this point, approximately 18:24 minutes into the interview, when the discussion took a direction that is the subject of this appeal. Detective Birch took over questioning:

You know, this is the one things that you got to understand, and I'm going to throw out another card to you, okay? When we do these cases, the most important thing is for you to stand up and be a man and accept your responsibility.

The problem we have is, when we get these cases—we get these cases every day. And a lot of these girls, depending on the age of the boys, we polygraph them.

The part we had a problem with is she's saying you forced her, you forced her. Force is a huge thing. That's the problem that I have, when someone says they were forced.

* * *

Part of the polygraph that she passed was she did have anal intercourse with you. The part that she did not do well on is the force. This is the opportunity for you—if there was force, we have a problem; if there's not force, then it's consensual, and that's when she get's [sic] help. Then we understand that she is not telling us the truth about that part.

But sitting here, saying it didn't happen with all these things here—It basically is going to be her story jamming you, and this is your opportunity, if it was not force, then you need to tell us, because what happens is you walk out of here, we're going with the force.

At 19:45 minutes into the interview, Detective Birch then made the following statements that are the primary focus of Appellant's arguments:

And you get that shit all the time, “I was raped and I was forced.” Well, you're going to get in trouble for that. If it was consensual, that's a whole different story.

That's what we're trying to figure out, is it force or was it consensual? And that's what, and by sitting here and saying, “I don't know what happened to her,” you can do that, you can throw the dice on that table, see if you're going to win this—you're not going to win. We're going to go forward on force.

Here is the opportunity to tell us it was not force, it was consensual. There's a little difference in age and that's just something that we got to deal with and she has to deal with, and she's going to have to make better choices in the future.

But the force part is what we're hung up on.

I'm going to tell you what. If she said it was consensual and she passed that, we wouldn't come down here. It took us two hours to get down here to talk to you, to give your side of the story. It took me two hours to get down here. If she said it was consensual and passed that polygraph, we wouldn't have come down here.

The force part is the one that we were concerned about.

Following this, and only 20:50 minutes into the interview, Appellant stated, “I never forced her to do anything.” Immediately thereafter, the following transpired:

Detective Birch: Okay. Tell me what the consensual part of it was and we can roll out of this. If it's consensual, then tell us it's consensual.

[Appellant]: It was consensual.

Appellant then recounted details of having anal intercourse with K.N., claiming that “[i]t was her idea.” He stated that K.N. cried one time, and he stopped. Appellant did not remember D.N. walking in on them. Appellant stated that the incidents began when K.N. was four or five years old and that there were four or five such encounters with K.N. over a six-month period.

Detective Carin revealed that K.N. told the police that Appellant put a plastic bag over her head. Appellant responded that “[t]here was never a plastic bag,” and explained that he put a pillowcase over her head because “[s]he said she didn't want to see anything.”

The detective also questioned Appellant about the incident regarding D.N. Appellant claimed that he and D.N. were “just roughhousing in the house and it was an accident.” Appellant admitted that he hit D.N. with an open hand, but maintained that it was accidental. When asked about a reported injury to K.N.'s ear, Appellant stated that he was chasing her “to be disciplined for something she did, and she ran into the wall.” He denied throwing her or smacking her, but he confirmed that K.N.'s ear bled after this incident.

Appellant denied that he engaged in oral sex with K.N., but admitted that he placed his finger in her vagina and her anus “[j]ust once or twice.” He further asserted that K.N. “always initiated” the encounters and that K.N. “came and got [him].” Appellant disclosed that after their encounters, he “told her not to tell anybody because people don't understand.”

Appellant agreed he would write an apology to K.N. After 32:29 minutes, the following dialogue was recorded:

Detective Birch: Okay. Let me ask you this. Do you know what you did was wrong?

[Appellant]: (No audible response.)

Detective Birch: Do you know it was illegal?

[Appellant]: (No

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