Wilkerson v. State

420 Md. 573

24 A.3d 703

Dedrick Tyrone WILKERSON

v.STATE of Maryland.

No. 107

Sept. Term

2010.

Court of Appeals of Maryland.

July 14, 2011.Reconsideration Denied Aug. 11, 2011.

Kelly Knepper–Stephens (The George Washington University Jacob Burns Community Legal Clinics, Washington, D.C.), on brief, for petitioner/cross-respondent.Gary E. O'Connor, Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for respondent/cross-petitioner.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.HARRELL, J.

We granted a petition and conditional cross-petition for writ of certiorari to consider application of the Supreme Court's 2004 decision in Missouri v. Seibert, 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004), which dealt with “two-step” or “question-first” interrogation tactics, to the circumstances of this case. See generally Eric English, You Have the Right to Remain Silent. Now Please Repeat Your Confession: Missouri v. Seibert and the Court's Attempt to Put an End to the Question–First Technique, 33 Pepp. L.Rev.. 423 (2006). Regrettably, we are unable on this record to confront head-on the merits of the questions presented in the petition and cross-petition; rather, we shall direct a limited remand to the Circuit Court for Howard County for further proceedings.

Dedrick Tyrone Wilkerson (“Wilkerson”) challenges the Court of Special Appeals's judgment, as explained in its unreported opinion, that the trial court did not err in denying his motion to suppress his statements made after a full Miranda waiver. The intermediate appellate court reasoned that the interrogating officers did not engage in Seibert's prohibited two-step or pre-advisement warning question-first tactics. The State, in its conditional cross-petition, challenges the holding of the panel of the intermediate appellate court that Wilkerson preserved his Seibert argument for appellate review. For reasons to be explained more fully infra, because we believe that justice will be served best by permitting further proceedings, we hold that the appropriate disposition of this case is a limited remand to the Circuit Court so that the record may be developed more fully on the possible Seibert contention, and the trial court may make the appropriate findings.

FACTS AND LEGAL PROCEEDINGS

On the evening of 18 October 2007, Lori Lefayt (“Lefayt”) sought medical treatment at the Howard County General Hospital, reporting that she had been raped earlier that night. Lefayt testified at trial ¹ that earlier on the evening of 18 October, she was attempting to withdraw money from an ATM machine at the Wilde Lake Village Center in Columbia when two young men—one of whom she identified later to police as Wilkerson—approached her and asked for a cigarette. After obliging the request, she contended the other man—later identified as Wilkerson's brother—left the area. Lefayt testified that she “told [Wilkerson] that [she] needed money because [she] was ailing, [she] was withdrawing from a [drug] habit [she] had during that time.” Lefayt continued that, unable to withdraw money from the Wilde Lake ATM, she walked with Wilkerson to find another ATM. Apparently, the route the two took to get to that second ATM led them through a field area between the Wilde Lake High School and Middle School.

According to Lefayt, Wilkerson asked to borrow her cell phone battery. She claims that, as she retrieved the battery, Wilkerson attacked her, throwing her to the ground, pushing her face into the ground, and putting his knee on her back. She claimed that she could not scream because Wilkerson choked and threatened her. Lefayt recalled that she lost consciousness for a period of time, regaining consciousness as Wilkerson was withdrawing his penis from her vagina.² Lefayt testified that she remained on the ground for approximately twenty minutes before returning home and thence to the hospital.

Wilkerson testified at trial to a different rendition of his encounter with Lefayt on 18 October 2007. Specifically, Wilkerson testified that Lefayt asked him if he had any drugs, to which he responded in the negative. Wilkerson testified further that Lefayt agreed to have sexual intercourse with him in exchange for him arranging to acquire drugs for her. According to Wilkerson, the pair then went behind a nearby restaurant where they engaged in sexual intercourse, after which he told Lefayt to wait there while he attempted to acquire some drugs. Unable to find drugs, Wilkerson claimed to have returned to the shopping center but, finding Lefayt gone, returned to his mother's home around 10:00 p.m. that evening.³

We now focus on the “facts” of particular relevance to the present posture of the case before us. At approximately 7:00 a.m. on 6 December 2007, Howard County Police officers executed search and seizure and arrest warrants at Wilkerson's home. Two police detectives—Detectives Denise Francis and Aaron Miller—interviewed Wilkerson in his home, after placing him in flex cuffs, for approximately twenty five minutes. The following is the sum and substance of the questioning that took place before Miranda⁴ warnings were given and waived:

[DET. MILLER]: Detective Francis ha[s] a few questions for you, OK?

[WILKERSON]: Uh-huh.

[DET. FRANCIS]: Dedrick, I'm Detective Francis.

[WILKERSON]: How you doing.

[DET. FRANCIS]: Fine, how are you?

[WILKERSON]: That window open?

[DET. MILLER]: Naw, it's closed.

[DET. FRANCIS]: No, it's closed. This is Detective Miller.

[DET. MILLER]: How you doing?

[DET. FRANCIS]: OK, um, today is, uh, [December] 6, 2007. Um, we are here at the, um, Wilkerson residence. We are at um, 10528 Crossfox Lane, Apartment B–2. OK, um, Dedrick, do you know why we're here?

[WILKERSON]: Uh-uh.

[DET. FRANCIS]: No? No idea?

[WILKERSON]: Uh-uh.

[DET. FRANCIS]: No, OK, um, we're here about something that happened um, a while back, up at the village center.

[WILKERSON]: (Inaudible)

[DET. FRANCIS]: Where you met somebody?

[WILKERSON]: And what happened?

[DET. FRANCIS]: Well, that's what we[']re here to talk about....

[DET. FRANCIS]: Have you ever met somebody at the village center? A female.

[WILKERSON]: Uh-uh.

[DET. FRANCIS]: You don't remember meeting anybody up at the village center?

[WILKERSON]: Uh-uh.

[DET. MILLER]: Was in beginning of November?

[DET. FRANCIS]: Yeah.

[DET. MILLER]: Around the beginning of November?

[WILKERSON]: No, I've been on the box and locked up around that time.

[DET. FRANCIS]: OK.

[DET. MILLER]: When you say “the box” you mean the ankle bracelet?

[WILKERSON]: Yeah.

[DET. MILLER]: OK.

[DET. FRANCIS]: And that monitor's [sic] you, you can't, where can you go? Where are you allowed to go?

[WILKERSON]: No where [sic] unless I have permission from my mother and that she's going out with me.

[DET. FRANCIS]: So your mother has to be with you?

[WILKERSON]: Yeah.

[DET. FRANCIS]: OK, and where can, where can you go without your mother?

[WILKERSON]: Only places where I couldn't go with her, anywhere she, actually I go with her.

[DET. FRANCIS]: OK so.

[WILKERSON]: But the only time I went out with her is like for jobs, going out looking for job or whatever, putting job applications. Stuff like that.

[DET. MILLER]: So when you say you can go out, like, does your mom say you have to go out or [do you] have to call anybody?

[WILKERSON]: Yeah, I have to call.

[DET. MILLER]: OK, who do you call? What's the?

[WILKERSON]: My mother calls really. Ms. Lyles.

[DET. MILLER]: OK, what's the person's name?

[WILKERSON]: Ms. Lyles.

[DET. MILLER]: Ms. Lyles?

[WILKERSON]: Yeah (inaudible).

[DET. MILLER]: And then she'll I guess do something on the computer that lets you leave the house?

[WILKERSON]: Yeah, that's right.

[DET. FRANCIS]: Can I borrow your pen?

[DET. MILLER]: So you've been, you beginning of November, even the end of September you didn't go anywhere?

[WILKERSON]: End of September, I was locked up, ‘cause it had been my birthday, after my birthday I got locked up, my birthday's September 15th.

[DET. FRANCIS]: What about October?

[WILKERSON]: October, January, February, March (inaudible)

[DET. FRANCIS]: You had that monitor on in October? When did you get the monitor?

[WILKERSON]: August, September.

[DET. FRANCIS]: In October?

[WILKERSON]: Yeah, I had on the box then too.

[DET. FRANCIS]: OK, well, how about around the middle of October?

[WILKERSON]: October.

[DET. FRANCIS]: Did you meet a girl up at the village center?

[WILKERSON]: Naw, I been on the box.

[DET. MILLER]: OK.

[WILKERSON]: ‘Cause I been on the box for three, four and a half, five months.

[DET. FRANCIS]: OK, wha[t], what time do you have?

[DET. MILLER]: Right now, it's, uh, 7:06.

[DET. FRANCIS]: OK, six. OK, I'm going to read you um, your rights OK?

[WILKERSON]: Um-hum.

In his post-advisement statements to the detectives, Wilkerson denied being in the area where the alleged crime took place on 18 October 2007, explaining that because of his electronic monitoring, he would not have been allowed at the Wilde Lake Village Center at that time of the night. After being told that an ATM surveillance camera recorded him with Lefayt on the evening in question, Wilkerson denied consistently having any recollection of being at the Village Center that night. Further, Wilkerson told the detectives he was not familiar with anyone named Lori. Finally, Wilkerson denied having any recollection of engaging in sexual intercourse with Lafayt or any other female that night. Wilkerson was charged ultimately with first- and second-degree rape, first-degree assault, false-imprisonment, and reckless endangerment.

On 28 April 2008, the Circuit Court held a hearing on Wilkerson's motion to suppress Lafayt's identification of Wilkerson from a photo array and his statements to the detectives, both pre-advisement and post-advisement. Lefayt and Detectives Francis and Miller testified at the suppression hearing. Wilkerson did not call any witnesses or...