 | ||||||||||||||||||||||||||||||
 | ||||||||||||||||||||||||||||||
|
Sawyer v. Humphries, 322 Md. 247, 587 A.2d 467 (Md.App. 03/22/1991) COURT OF APPEALS OF MARYLAND Certiorari to Court of Special Appeals; (Circuit Court for Carroll County); Luke K. Burns, Jr., Judge. Stephen P. Bourexis and Judith S. Stainbrook, Westminster, for petitioners. Millicent Edwards Gordon, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., on brief), Pikesville, for respondent. Murphy, C.J., and Eldridge, Rodowsky, McAuliffe and Chasanow, JJ. Eldridge [322 Md Page 250] This case concerns a police officer's immunity from suit under the Maryland Tort Claims Act, Maryland Code (1984, 1989 Cum.Supp.), §§ 12-101 through 12-110 of the State Government Article. As the circuit court dismissed the plaintiffs' complaint, for purposes of these appellate proceedings the facts are those alleged by the plaintiffs. On June 10, 1988, Robert Andrew Sawyer, one of the plaintiffs, was driving on Route 31 in Carroll County. Dean Hundley, the other plaintiff, was a passenger. Mr. Sawyer and Mr. Hundley were traveling behind another car driven by the defendant Mr. Humphries. Unknown to the plaintiffs, Mr. Humphries, who was wearing civilian clothing and driving his personal car, was an off duty State police officer.*fn1 While driving behind Mr. Humphries, Mr. Sawyer and Mr. Hundley noticed him making some hand signals towards them. He then pulled to the shoulder of the road, allowing them to pass. The plaintiffs allege that they then turned down a side road to investigate a construction site where they hoped to obtain work and that, upon returning to Route 31, the car that had allowed them to pass was parked on the side of the road. Mr. Humphries was leaning up against his car motioning to Mr. Sawyer and Mr. Hundley to approach him. [322 Md Page 251] According to the plaintiffs, as they slowly drove toward Mr. Humphries's car to see what he wanted, Humphries picked up some rocks and threw one at their car. Although they tried to avoid the rock by swerving back onto the road, it hit the passenger side of their car, leaving a large dent. At this point Mr. Sawyer made a U-turn, parked his car on the side of the road opposite Mr. Humphries and got out, allegedly with the intention of talking about the damage to his car. Mr. Sawyer claims that Mr. Humphries picked up more rocks and that, in response, Mr. Sawyer grabbed an empty beer bottle from the side of the road to defend himself. Mr. Humphries then allegedly attacked Mr. Sawyer, grabbing him by the hair, beating him about the face and threatening to kill him. When Mr. Hundley stepped out of the car to assist Mr. Sawyer, Mr. Humphries released Mr. Sawyer and stepped toward Mr. Hundley, saying, "unless you want some too, boy, you better get back in the car." Mr. Hundley got back in the car. Mr. Sawyer was then apparently able to get away from Mr. Humphries and got into the passenger seat of his car as he was too badly injured to drive. At this point, Mr. Humphries approached the plaintiffs' vehicle and offered to exchange information. Mr. Sawyer refused, and he and Mr. Hundley drove away toward the town of New Windsor. The plaintiffs further allege that, at one point, they saw Mr. Humphries driving his automobile in front of them while they were driving toward New Windsor, but that Mr. Humphries turned down a side street and then began following them. As the plaintiffs were waiting at a stop sign in New Windsor, Mr. Humphries got out of his car and again approached Mr. Sawyer as he was seated on the passenger side of the plaintiffs' car. Mr. Humphries allegedly slapped Mr. Sawyer across the chest, stated that he was a Maryland State Police Officer, and that he was arresting Mr. Sawer. Mr. Humphries tried to physically remove Mr. Sawyer from the car but was unable to do so because Mr. Sawyer's seat belt was fastened. Mr. Sawyer and Mr. Hundley claim that they did not believe Mr. Humphries was a police officer and asked him repeatedly for identification. Mr. Humphries, however, refused to provide either plaintiff with any identification. Other police officers eventually arrived and arrested Mr. Sawyer. The record does not disclose whether Mr. Sawyer was ever charged with an offense. On June 9, 1989, Mr. Sawyer and Mr. Hundley filed in the Circuit Court for Carroll County the complaint against Mr. Humphries which commenced this action. Counts one and two charged assault based on the defendant's throwing a rock at the plaintiffs' car. Count three charged a battery based on the defendant's physical attack upon Mr. Sawyer on Route 31. Counts four and five claimed that the threats and threatening conduct made toward Mr. Sawyer and Mr. Hundley constituted assault. Counts six and seven asserted battery in light of Mr. Humphries's alleged physical abuse of Mr. Sawyer in New Windsor. The plaintiffs did not name the State of Maryland as a defendant, and they did not notify the State Treasurer of the action. Mr. Humphries did not file an answer to the complaint. Instead Mr. Humphries filed a motion to dismiss, arguing that, because he was employed as a Maryland State police officer and was acting within the scope of his employment with the State at the time of the alleged tortious conduct, and because he acted without malice, the Maryland Tort Claims Act applied and granted him immunity.*fn2 Therefore, Mr. Humphries contended, the action against him personally should be dismissed. The motion to dismiss also asserted that, because the plaintiffs failed to satisfy the prerequisites of the Tort Claims Act for bringing a tort suit under that Act, specifically the notice provision, the present tort action could not be maintained with the State or a state agency substituted as a party.*fn3 The circuit court, without explanation, granted the motion to dismiss. Mr. Sawyer and Mr. Hundley appealed to the Court of Special Appeals which affirmed. Sawyer v. Humphries, 82 Md. App. 72, 570 A.2d 341 (1990). The Court of Special Appeals held that because "an employee of the Maryland State Police, who is sworn as a police officer, is for police purposes on duty twenty-four hours a day, seven days a week, fifty-two weeks a year" and that because Mr. Humphries "acted as a law enforcement officer, at the time of the incident," his conduct fell within "the scope of [his] public duties" within the meaning of the Maryland Tort Claims Act. 82 Md. App. at 83-84, 570 A.2d at 347. In addition, the intermediate appellate court held that, as a matter of law, the plaintiffs' complaint did not sufficiently allege that Mr. Humphries acted with malice. Consequently, according to the Court of Special Appeals, Mr. Humphries was entitled to the immunity granted by the Tort Claims Act. The plaintiffs filed a petition for a writ of certiorari which we granted. It is clear from the language of § 12-105 of the Maryland Tort Claims Act that, in order for a State employee to be granted immunity from suit by that statute, he must act "within the scope of [his] public duties" and "without malice or gross negligence." Therefore the overall issue in the case before us is whether the plaintiffs' complaint alleged facts sufficient to show conduct by Mr. Humphries which either was outside the scope of his "public duties" or was malicious.*fn4 [322 Md Page 254] Although this Court has never discussed in detail whether the phrase "scope of the public duties" in the Tort Claims Act is coextensive with the common law concept of "scope of employment" under the doctrine of respondeat superior, we have treated them as the same. See Rucker v. Harford County, 316 Md. 275, 302, 558 A.2d 399, 412 (1989) (Tort Claims Act applicable to "tortious acts of a sheriff or deputy sheriff committed in the scope of employment"); State v. Jett, 316 Md. 248, 252, 558 A.2d 385, 386 (1989) (test under the Tort Claims Act is " respondeat superior liability . . . under agency law"); Clea v. City of Baltimore, 312 Md. 662, 671 n. 6, 541 A.2d 1303, 1307 n. 6 (1988) ("under a provision in the Tort Claims Act, . . . state personnel, acting within the scope of their employment, and without malice or gross negligence, are granted immunity for acts with respect to which the State or its units have waived immunity in the Act"). See also Wolf v. Liberis, 153 Ill.App.3d 488, 106 Ill.Dec. 411, 505 N.E.2d 1202, appeal denied, 115 Ill.2d 552, 110 Ill.Dec. 466, 511 N.E.2d 438 (1987); Maryland Cas. Co. v. Huger, 728 S.W.2d 574, 579 (Mo.App.1987). This interpretation of the language "scope of public duties" as synonymous with "scope of employment" for purposes of respondeat superior liability is in accord with the purpose of the Tort Claims Act. The legislative history of the Act shows that the General Assembly intended to render the State liable, in those areas where it has waived its immunity for tort claims, in the same manner and to the same extent as a private party. See the Department of Legislative Reference's file on Senate Bill 585 of the 1985 Session of the General Assembly.*fn5 [322 Md Page 255] The general test set forth in numerous Maryland cases for determining if an employee's tortious acts were within the scope of his employment is whether they were in furtherance of the employer's business and were "authorized" by the employer. In an often-quoted passage, the Court in Hopkins C. Co. v. Read Drug & C. Co., 124 Md. 210, 214, 92 A. 478, 479-480 (1914), explained: "'The simple test is whether they were acts within the scope of his employment; not whether they were done while prosecuting the master's business, but whether they were done by the servant in furtherance thereof, and were such as may fairly be said to have been authorized by him. By "authorized" is not meant authority expressly conferred, but whether the act was such as was incident to the performance of the duties entrusted to him by the master, even though in opposition to his express and positive orders.'" (quoting from Wood on Master and Servant § 279 (1877)). Accord, e.g., Wood v. Abell, 268 Md. 214, 227, 300 A.2d 665, 671-672 (1973); In applying this test, there are few, if any, absolutes. Nevertheless, various considerations may be pertinent. The Court, in E. Coast Lines v. M. & C.C. of Balto., supra, 190 Md. at 285, 58 A.2d at 304, summarized four of them: "To be within the scope of the employment the conduct must be of the kind the servant is employed to perform and must occur during a period not unreasonably disconnected from the authorized period of employment in a locality not unreasonably distant from the authorized area, and actuated at least in part by a purpose to serve the master. Mechem on Agency, Section 36; Huffcut on Agency, Section 5; American Law Institute, Restatement, Agency, Section 228, comment (b)." In A. & P. Co. v. Noppenberger, 171 Md. 378, 390-391, 189 A. 434, 440 (1937), after setting forth the factors quoted above, the Court went on to quote with approval the Restatement of Agency § 229 (1933), as follows: "On the other hand, certain conduct of the servant may be within the scope of his employment, although not intended or consciously authorized by the master, but '(1) To be within the scope of the employment, conduct must be of the same general nature as that authorized, or incidental to the conduct authorized. (2) In determining whether or not the conduct, although not authorized, is nevertheless so similar to or incidental to the conduct authorized as to be within the scope of employment, the following matters of fact are to be considered: -- (a) whether or not the act is one commonly done by such servants; (b) the time, place and purpose of the act; (c) the previous relations between the master and the servant; (d) the extent to which the business of the master is apportioned between different servants; (e) whether the act is outside the enterprise of the master or, if within the enterprise, has not been entrusted to any servant; (f) whether or not the master has reason to expect that such an act will be done; (g) the similarity in quality of the act done to the act authorized; (h) whether or not the instrumentality by which the harm is done has been furnished by the master to the servant; (i) the extent of departure from the normal method of accomplishing an authorized result, and (j) whether or not the act is seriously criminal.' Id., 229." See Rusnack v. Giant Food, Inc., 26 Md. App. 250, 261-265, 337 A.2d 445, 451-454 (1975); Prosser and Keeton On The Law Of Torts § 70 (5th ed. 1984); Restatement (Second) Agency §§ 228, 229 (1958). In addition, an important factor is whether the employee's conduct was "expectable" or "foreseeable." Cox v. Prince George's County, 296 Md. 162, 171, 460 A.2d 1038, 1042 (1983); LePore v. Gulf Oil Corp., supra, 237 Md. at 597, 600, 207 A.2d at 454, 456; Central Railway Co. v. Peacock, 69 Md. 257, 262, 14 A. 709, 710-711 (1888). Furthermore, and particularly in cases involving intentional torts committed by an employee, this Court has emphasized that where an employee's actions are personal, or where they represent a departure from the purpose of furthering the employer's business, or where the employee is acting to protect his own interests, even if during normal duty hours and at an authorized locality, the employee's actions are outside the scope of his employment. LePore v. Gulf Oil Corp., supra, 237 Md. at 596-598, 207 A.2d at 453-454; Carroll v. Hillendale Golf Club, 156 Md. 542, 545-546, 144 A. 693, 695 (1929); Steinman v. Laundry Co., 109 Md. 62, 67, 71 A. 517, 519, 21 L.R.A., N.S. 884 (1908); Central Railway Co. v. Peacock, supra, 69 Md. at 265, 14 A. at 712. Finally, "[w]here the conduct of the servant is unprovoked, highly unusual, and quite outrageous," courts tend to hold "that this in itself is sufficient to indicate that the motive was a purely personal one" and the conduct outside the scope of employment. Prosser and Keeton On The Law Of Torts, supra, at 506. See Henley v. Prince George's County, 305 Md. 320, 330 n. 2, 503 A.2d 1333, 1338 n. 2 (1986); Carroll v. Hillendale Golf Club, supra, 156 Md. 542, 144 A. 693. In light of these principles, it seems obvious that the defendant's alleged conduct, at least prior to the incident in the town of New Windsor, was outside of the scope of his employment. The defendant was off duty and driving his personal car. Under the allegations of the complaint, the defendant's throwing a rock at the plaintiffs' car and his attack upon the plaintiffs along Route 31 had nothing to do with the defendant's duties as a police officer. As to that activity, there is no suggestion in the complaint that Mr. Humphries was attempting to question, stop, detain or arrest the plaintiffs in connection with any traffic or criminal offense or any other matter of concern to the police department.*fn6 On the contrary, insofar as it appears fromthe complaint, Mr. Humphries was acting for purely personal reasons and not incidental to any State law enforcement purpose. In holding that Mr. Humphries was acting in the scope of his employment as a policeman, the Court of Special Appeals relied on the notion that a police officer is "on duty" all of the time. It is true that the scope of employment for police officers, as well as those engaged in somewhat similar occupations, is often viewed broadly because of the nature of the employment. See Carroll v. Hillendale Golf Club, supra, 156 Md. at 546, 144 A. at 695 (distinguishing assaults by "police officers, watchmen, and railroad trainmen" from those by other employees because the actions of one of the former "are usually so related to his employment or occupation as to leave to the jury the determination of the fact of the relation of the servant's torts to the scope of his employment"). See also Gambling v. Cornish, 426 F.Supp. 1153, 1155 (N.D.Ill.1977). Nevertheless, the same basic principles and considerations, applicable to employees generally, are used to determine whether "police officers, watchmen, and railroad trainmen" are acting within the scope of their employment. See Cox v. Prince George's County, supra, 296 Md. at 170-171, 460 A.2d at 1042; Drug Fair v. Smith, supra, 263 Md. at 344, 346-350, 283 A.2d at 395-397; Central Railway v. Peacock, supra, 69 Md. at 262-265, 14 A. at 710-712. We agree with the Court of Special Appeals that a police officer may be "on duty" 24 hours a day in the sense that he may be on call and may under certain circumstances have an obligation to act in a law enforcement capacity even when on his own time.*fn7 That does not, however, lead to the conclusion that the officer is always acting in furtherance of the State's business of law enforcement and that all conduct is incidental to police work. Even though a police officer may be said to be "on duty" all of the time, cases regularly hold that a police officer acts outside the scope of his employment where he acts for his own personal reasons and not in furtherance of his employer's law enforcement function. See, e.g., District of Columbia v. Coron, 515 A.2d 435, 437-439 (D.C.1986); Moreover, as the opinions of this Court make clear, whether or not tortious conduct occurs during duty hours or the normal period of employment is only one of many considerations in determining whether the conduct is within the scope of employment. Conduct may occur while one is on duty but still be outside of the scope of employment. In fact, in virtually all of the cases in which this Court has held that an assault by an employee was outside the scope of employment, the assault occurred at a time when the employee was "on duty." E.g. Henley v. Prince George's County, supra, 305 Md. at 326, 330 n. 2, 503 A.2d at 1336, 1338 n. 2; (involving an on-duty police officer, and the court pointed out that "liability for an assault by an employee that bears no relation to the real or apparent scope of his employment or to the interest of his employer is not imposed upon the employer under the doctrine of respondeat superior"); Snell v. Murray, supra, 117 N.J.Super. at 273-274, 284 A.2d at 384-385 (uniformed police officer on duty was not within the scope of his employment when he extorted money from gamblers, shooting one of them in the process); Desotelle v. Continental Cas. Co., 136 Wis.2d 13, 25-30, 400 N.W.2d 524, 528-530 (Wis.App.1986), review denied, 136 Wis.2d 563, 407 N.W.2d 560 (1987). For purposes of the motion to dismiss in the present case, the defendant's alleged conduct prior to the events in New Windsor was outside of the scope of his employment. The facts set forth by the plaintiffs indicate that the defendant was acting from personal motives, that such conduct by a police officer would not be expectable, and that Humphries was in no way furthering the State's interests. This Court's conclusion in Central Railway Co. v. Peacock, supra, 69 Md. at 265, 14 A. at 712, regarding an assault upon a passenger by a railway conductor is applicable here: "In doing this he cannot be regarded as acting within the sphere of his duty or scope of his authority. He left and stepped aside from both in order to gratify his spleen . . . ." As to the events in the town of New Windsor, the matter is less clear. Ordinarily when stopping a motorist or making or attempting to make an arrest, a police officer is acting within the scope of his employment. On the other hand, it is suggested that the events in New Windsor cannot be viewed in isolation and are simply the product of the earlier activity which was outside of the scope of employment.*fn8 In a case where an alleged unjustified assault and excessive conduct occurred in connection with an arrest of a suspected lawbreaker, Cox v. Prince George's County, supra, 296 Md. at 170-171, 460 A.2d at 1042-1043, this Court indicated that the scope of employment issue was for the jury and should not have been resolved by sustaining a demurrer. Similarly, under the circumstances of this case, whether or not the defendant's alleged actions in New Windsor were within the scope of his employment should not have been decided on a motion to dismiss. Alternatively, the complaint sufficiently alleged malice so that Mr. Humphries would not be entitled to immunity under the Maryland Tort Claims Act. The Court of Special Appeals held that plaintiffs made "bald allegations" of malice with no substantiation. We disagree. The plaintiffs specifically alleged, inter alia, that Mr. Humphries, unprovoked and without cause, while in civilian clothes and without identifying himself, "prepared to throw a rock," did throw a rock, and that "the rock did strike the side of plaintiffs' automobile." They further alleged that the defendant "grabbed [Mr. Sawyer] and wrestled him to the ground, grabbed [him] by the hair and began hitting him in the face," and said that "he was going to kill Sawyer." The complaint went on to state that the defendant threatened Mr. Hundley with physical harm, and that he further battered Mr. Sawyer while Mr. Sawyer was in his own automobile. These facts set forth by the plaintiffs directly showed malice. When someone, without provocation or cause, throws rocks at two other persons, he is obviously demonstrating ill will towards those persons. Wrestling another to the ground, pulling his hair, and hitting him on the face, again without cause or provocation, is certainly malicious conduct. When one person states that he is going to kill another, he clearly harbors actual malice toward the victim. The complaint was more than adequate to allege that Humphries acted maliciously throughout the entire relevant period. See Robinson v. Bd. of County Comm'rs, 262 Md. 342, 348-350, 278 A.2d 71, 74-75 (1971). Although it was error to dismiss the complaint, the evidence at trial may show that, as a matter of law, the defendant Humphries was throughout acting in the scope of his employment and without malice. If it does, Mr. Humphries will be entitled to the immunity granted by the Maryland Tort Claims Act. On the other hand, the evidence may show that, as a matter of law, Mr. Humphries was either not acting in the scope of employment or was acting maliciously; in either event, he will not be entitled to immunity under the Tort Claims Act. Finally, the evidence may be such that a jury issue as to immunity, with regard to some or all counts, may be presented. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR CARROLL COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. RESPONDENT TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS. Disposition JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED AND CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REVERSE THE JUDGMENT OF THE CIRCUIT COURT FOR CARROLL COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR CARROLL COUNTY FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS OPINION. RESPONDENT TO PAY COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS. -------------------------------------------------------------------------- *fn1 The defendant, in the memorandum in support of his motion to dismiss, acknowledged that at the time he was "off duty, not in uniform, and traveling in his personally-owned vehicle." *fn2 Section 12-105 of the Act, Maryland Code (1984, 1989 Supp.), § 12-105 of the State Government Article, sets forth the circumstances under which State personnel will be immune from suit. At the time of the incident in this case, § 12-105 read as follows: "§ 12-105. Immunity of State personnel. (a) In general. -- State personnel are immune from suit in courts of the State and from liability in tort for a tortious act or omission that is within the scope of the public duties of the State personnel and is made without malice or gross negligence, and for which the State or its units have waived immunity under this subtitle, even if damages exceed the limits of that waiver." Section 12-105 was amended by Chapter 546 of the Acts of 1990. No substantive change was made in the above-quoted provision, but it was in effect moved to Code (1974, 1989 Repl.Vol., 1990 Supp.), § 5-399.2(b) of the Courts and Judicial Proceedings Article. *fn3 "§ 12-106. Restrictions on actions. (b) Claim and denial required. -- A claimant may not institute an action under this subtitle unless: (1) the claimant submits a written claim to the Treasurer or a designee of the Treasurer within 180 days after the injury to person or property that is the basis of the claim; . . . ." *fn4 We note that because this case is before us on the defendant's motion to dismiss the plaintiffs' complaint, the allegations of the complaint must be accepted as true. Cox v. Prince George's County, 296 Md. 162, 169, 460 A.2d 1038, 1042 (1983); Walker v. D'Alesandro, 212 Md. 163, 167, 129 A.2d 148, 150 (1957). *fn5 The statute does appear to make two specific types of acts within the "scope of public duties" as a matter of law, and thus, as to them, common law "scope of employment" principles are not necessarily controlling. See § 12-105(b) of the State Government Article (1984, 1989 Supp.). This provision is not, however, relevant in the case at bar. *fn6 Even under the version of the facts set forth by the defendant Humphries in the memorandum supporting his motion to dismiss, when Humphries threw the rock at the plaintiffs' car and struggled with the plaintiff Sawyer along Route 31, Humphries was not attempting to detain or arrest either plaintiff but was acting in self defense. It was not until the plaintiffs drove off and Humphries got in his car and began to pursue the plaintiffs that he claims that he intended to arrest them for an offense. See Rusnack v. Giant Food, Inc., 26 Md. App. 250, 266, 337 A.2d 445, 454 (1975) ("Whether [the employee] was then bumped inadvertently by [the plaintiff] and immediately assaulted and beat [the plaintiff], as [the plaintiff] said, or whether [the employee] upon being purposely bumped and struck by [the plaintiff], acted in self-defense, as [the employee] indicated, the result is the same. No matter which version is accepted as correct, it cannot be fairly said that [the employee] was advancing [the employer's] interests in doing what he did . . ."). *fn7 See, e.g., Banks v. City of Chicago, 11 Ill.App.3d 543, 297 N.E.2d 343 (1973) (off-duty police officer was acting within the scope of his duties when, in an attempt to prevent the commission of a crime, he shot a patron of a tavern who pulled a gun); City of Pittsburgh v. W.C.A.B., 108 Pa.Commw. 477, 529 A.2d 1196 (1987) (off-duty police officer was within the scope of his employment when he assisted a fellow officer who was drawn into a scuffle by ruffians). *fn8 See, e.g., Stavitz v. New York, 98 A.D.2d 529, 532-533, 471 N.Y.S.2d 272, 274-275 (1984); Lucey v. State, 73 A.D.2d 998, 424 N.Y.S.2d 38 (1980); 19910322 ===================================================== (trial and appellate counsel) Reynolds v. Maryland, 327 Md. 494, 610 A.2d 782 (Md.App. 08/24/1992) COURT OF APPEALS OF MARYLAND No. 121, September Term, 1991 1992.MD.40120 <http://www.versuslaw.com>; 327 Md. 494; 610 A.2d 782 Filed: August 24, 1992. FREDERICK WILLIAM REYNOLDS, JR. v. STATE OF MARYLAND Certiorari of Court of Special Appeals. (Circuit Court for Carroll County). Donald J. Gilmore, JUDGE Judith S. Stainbrook (Stephen P. Bourexis, both on brief), Westminster, for petitioner/cross respondent. Diane Krejsa, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., both on brief), Baltimore, for respondent/cross petitioner. Murphy, C.J., and Eldridge, Rodowsky, McAuliffe, Chasanow, Karwacki and Robert M. Bell, JJ. Eldridge, J., concurs in result only. Chasanow 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 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."*fn1 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 a prosecutor. 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).*fn2 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. 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.*fn3 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." 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 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 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. 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 following 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 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 219-21, 594 A.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 including Stokes v. State, 289 Md. 155, 423 A.2d 552 (1980); Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979); 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 constitutional 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. 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 (4th ed. 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 & Israel § 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 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 upon conviction, and deceptive practices so extreme that they might have produced a false confession." LaFave & Israel § 6.2, at 440. 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 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, 404 A.2d 1073, 1081 (1979). 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 . . . even a mild promise of leniency was deemed sufficient to bar the confession . . . because defendants at such times are too 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." Id. § 1:12, at 13 (1991 Cum.Supp.). 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 Seventh 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.[Ed.] 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 considered confessing had the police not 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." {PA} 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). "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 rule . . . . Thus, the inquiry in each case is whether such a promise overbears a suspect's will, as the promise of leniency did in Bram, either alone or in conjunction with other factors." (Citations omitted). [64] 850 F.2d at 901. [65] 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 worldly 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. 140, 153 (1873). [66] 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. Rochester, 301 S.C. 196, 391 S.E.2d 244, 247 (1990) (Polygraph examiner's statement that it would be in suspect's interest to tell the truth did not offer a "hope of reward or benefit."). An entreaty to "tell the truth" coupled with a [327 Md Page 508] [67] promise that there would be benefits to the suspect, however, can render the statement involuntary. In Biscoe v. State, for example, a confession 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, 8 A. 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).*fn4 [68] From our precedents, we distilled the following common law principle on promises: [69] "[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." [70] Hillard v. State, 286 Md. at 152-53, 406 A.2d at 420. "The rule in Hillard announces that a statement is rendered [71] 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, 174 A.2d at 166 (emphasis added). See also State ex rel. Collins v. Superior Court, 145 Ariz. 493, 702 P.2d 1338, 1340 (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). [72] We note that Hill was responding to Reynolds' unsolicited 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.*fn5 Without a promise of benefit or advantage, there was no inducement. [73] We note further that 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. [74] 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. [75] Whatever the prosecutor did, Reynolds gave his first statement to Norman after having received his Miranda [327 Md Page 511] [76] 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. [77] THE SECOND CONFESSION [78] 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 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." [79] 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 207-13, 594 A.2d at 614-17. [80] 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. [81] "'[I]n 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.) [82] 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 or the crime charged. LaFave & Israel § 6.2, at 440. [83] 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. [84] 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, 16 Cal.3d 539, 128 Cal.Rptr. 161, 168, 546 P.2d 665, 672 (1976) (en banc). See also Finke v. State, 56 Md. App. 450, 485-86, 468 A.2d 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). [85] 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."). [86] 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. [87] Conclusion [88] 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. [89] JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE [327 Md Page 514] [90] COURT OF SPECIAL APPEALS TO BE PAID BY THE PETITIONER. [91] Disposition [92] JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE PETITIONER. -------------------------------------------------------------------------- [93] *fn1 Under Maryland law, "each health practitioner . . . acting in a 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). [94] *fn2 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. [95] *fn3 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, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). [96] *fn4 In People v. Hill, 66 Cal.2d 536, 58 Cal.Rptr. 340, 348, 426 P.2d 908, 916 cert. denied, 389 U.S. 993, 88 S.Ct. 492, 19 L.Ed.2d 487 (1967), and 390 U.S. 911, 88 S.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 a confession 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 the nature 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." Id. [97] *fn5 Had Hill truly embarked on a course 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 (11th Cir.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 gave legal "advice" to a criminal suspect being interrogated. 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. ===================================================== PAM DAVIS "He is the only person since I've gotten out I've been able to relate to, talk to, that understands," says Davis, 48, who had never before run afoul of the law. "My peers are now people who've done time, because I've got nothing in common with the rest of the world. "It's going to cost $15,000 for the appeal. I already owe my lawyer $45,000. I don't have the money to buy my own freedom. My body's free but the rest of me is still in prison. My life is a disaster because of this. My 1989 motor home sits in the driveway because I don't have the money for insurance. I was a person with a spotless credit rating." Once a prosperous businesswoman, she lives on 54 acres of rolling farmland in a 21-room house 75 miles north of Washington. In her lowest moments, she says she is actually considering going back to prison to serve out her sentence, rather than continuing to pay a lawyer to contest it. "The point is," she says, in a husky, chain-smoker's voice, "how could this have happened in America? How could this have happened to me? I didn't murder, I didn't steal, I didn't lie. I didn't break any of the Ten Commandments or the Golden Rule." There have been far greater miscarriages of justice in the news recently than anything done to Pamela Davis. One man served nearly nine years for a rape and murder he did not commit; another was taken into custody and charged with as dastardly a crime as one can imagine, the random shooting of six children at a public swimming pool. Oops, no evidence. Sorry, our mistake. The Pamela Davis case is nothing like those. Still, it stands out - not just because of the nature of the crime and the severity of the punishment, but because it involves a collision of the values of 1960s and the 1990s, a classic test of freedoms. To what extent should a community be free to set its own ethical standards, however draconian they may be? Was Pamela Davis punished for being a lawbreaker or for being a loudmouth? Davis got two years for an infraction that in California gets you a $100 civil fine. Even in most Maryland jurisdictions, she would have walked away with a fine and probation, if she were convicted at all; of 10,000 people incarcerated in Maryland state prisons last year, only four were there for marijuana possession. Davis had been caught with less than an ounce of marijuana in her nightstand drawer, following a police "I don't care if it's a seed, a leaf or 1 million pounds. It's like being pregnant. You either are or aren't." _ - Prosecutor Barton F. Walker IIIsearch of questionable legality. The complaint cited the incriminating presence of such "drug paraphernalia" in her house as High Times magazines, a light that could be used to grow plants indoors, and photographs of marijuana plants. A Carroll County jury acquitted her of possession with intent to sell but found her guilty of having the stuff, and of "maintaining a common nuisance," an ancient law originally enacted to close down bordellos. Ignoring a county probation agency's recommendation for no jail time, a judge threw the book at her. The problem was that Pam Davis did not just break the law. She also committed the sin of hubris: Convicted in a conservative county in front of a conservative judge, she rejected remorse in favor of rhetoric. Fulminating with outrage, between her conviction and her sentencing she became a boisterous marijuana advocate. The Marijuana Mama. This did not go over well. Gesturing toward Davis - a defendant in sweater and jeans whose son was conceived at Woodstock and given the name Kif, a term for a type of marijuana - prosecutor Barton F. Walker III thundered to the courtroom that the defendant shared the blame for crack babies and other victims of a society that condones drug use: "The problems of the country can be laid at the feet of people like Miss Davis." Circuit Judge Raymond E. Beck Sr. agreed. Beck is a 54-year-old crew-cut former Marine, son of a police officer, lieutenant colonel in the Maryland National Guard, former Republican minority leader of the Maryland General Assembly. "You fight for causes, but you are marching under false colors," Beck told her at her sentencing in April. Beck has a reputation for being tough but fair, a judge capable of compassion, even leniency. He once sentenced to a year in jail a woman who stole $130,000 from her employer. He freed on five years' probation a man charged with attempted murder who lit a homemade bomb under his wife's car. He gave probation to a 49-year-old man convicted of sexually abusing his daughter for seven years. Beck gave first-offender Davis a five-year sentence, and then suspended only three of them. The Marijuana Mama was marched away in restraints. A bearded spectator raised a clenched fist and shouted, "The solution is the revolution!" In the hallway, 22-year-old Kif Davis - a longhaired anarchist, a Yippie-come-lately out of place and time - declared, "Every cop in this room is a fascist." Whether he actually jostled a sheriff's deputy is under dispute, but he was handcuffed and arrested on charges of assault and battery. Graffiti began appearing around Carroll County: "Free Pam Davis." And finally, it has come to this: Pamela Snowhite Davis, a clothing retailer who lives quietly if eccentrically with four ferrets and 20 cats and a potbellied pig in rural Maryland 75 miles north of Washington, has been named High Times magazine's Highwitness News Freedom Fighter of the Month for August. It was on May 7, 1992 that Pam Davis's life went up in smoke. Without her knowledge, son Kif had ordered a small package of marijuana from California. United Parcel Service discovered it and contacted the authorities in Carroll County. It was addressed to nobody in particular at the Davis farm. The package was delivered, but by a cop in a United Parcel Service uniform. No sooner had it been signed for, by Davis's daughter, Sara, than a search warrant was shown and executed. Police found Kif on the roof, desperately wolfing down almost all of the 1 1/2 ounces of pot he'd ordered. Scouring the house, police found High Times magazines in his room and 25 grams of marijuana in his mother's nightstand drawer. That's roughly as much as would fill a pack of cigarettes. Kif pleaded guilty to possession, received probation and paid a $1,000 fine. Charges against Sara Davis, 20, were thrown out. But charges against mother Pam, who wasn't home when the package came, stuck. And then she made a dumb mistake. Instead of hiring a lawyer she initally chose to represent herself, and suddenly discovered the classic truism: that she had a fool for a client. Unwittingly, she missed a filing deadline to challenge the legality of the search. A separate challenge of the search, by a lawyer representing daughter Sara, had been upheld by the court: Because undercover police officers had delivered the drugs, they in effect had obtained a search warrant based on the presence of contraband that they themselves had supplied. Not fair. But Pam Davis never got to argue that. With the legality of the search not at issue, her conviction - on something - was assured. In a sense, Pam Davis's troubles with Carroll County began years before she ever set foot here. Carroll County did not so much survive the rebellious spirit of the 1960s as ignore it. It would not be able to ignore Pam Davis. She was the 1960s. Born in Philadelphia - Snowhite was a clumsy Ellis Island anglicization of her grandfather's Russian name - and raised in nearby Woodbury, N.J., she did, she says, "the hippie-dippie thing," marched for peace, went to rock festivals. She also got married, and for 15 years she and her husband, Dan, owned and operated head shops, mostly on the Jersey shore and also in Philadelphia. "The most exciting thing I ever did in my life was to get high with Janis Joplin," she says. That was in Davis's store - the Apple - on Sansom Street, which was "like the Haight-Ashbury of Philadelphia." Pam and Dan have been separated for two years now, but Pam's problems, along with their dwindling community property, have drawn them closer. In 1987, they bought a farm about two miles from the Mason-Dixon line. They had the farmhouse painted gray, with pink shutters. They installed an outdoor Jacuzzi between the house and pond. They had a full-time cleaning person and a Mercedes. From the eight-bedroom house, they did a wholesale business in clothes imported from Guatemala - grossing $400,000 in 1991. They seldom went to town. "We were two adults playing," she says. "It was like Green Acres." If only she had come to, say, Takoma Park, the counterculture capital of Montgomery County, to settle. But no, she wanted to live on a farm. And in Carroll County, no less. The largely agricultural county of 131,000 northwest of Baltimore is Bible Belt Republican. "It's a hotbed of conservative activity," said Jeff Griffith, a Democrat who labels "an aberration" his two terms as county commissioner. Moving here from Baltimore County, he said, "I was a moderate Democrat. As you drive west out Liberty Road, I became a liberal Democrat. By the time you got to Taneytown, I was a screaming Abbie Hoffman radical." "Our people are very law-abiding and fed up with drugs," said five-term State's Attorney Thomas E. Hickman, who came here from Baltimore to escape crime and high taxes. "It's a different world. It's amazing how close we are to Baltimore and Washington. It's nothing to take a day trip there, to enjoy the culture, and yet to come home in the evening and be free of crime." Folks here voted overwhelmingly against a state gun control initiative a few years back, Hickman notes with approval. "Guns are a very positive factor in the community. We have more guns in Carroll County than in Washington, D.C., probably. They are used by law-abiding people and discourage burglars." In this conservative climate, the Carroll County Narcotics Task Force has won wide public support. For the past three years, its coordinator has been tousle-haired prosecutor Barton Walker. "This is beautiful country, real pretty, good people," Walker said. "It's one of the last places you don't have the problems of the urban areas. That's why we try to protect it so zealously." Or, as Walker said in court in the Pamela Davis case, "Anybody (against whom) we find probable cause, we'll charge and prosecute, and if we have to work 24 hours a day, we'll do it. We want a clean, nice community. That's the philosophy we have. We plan to press on with it. I don't care if it's a seed, a leaf or 1 million pounds. It's like being pregnant. You either are or aren't." Walker's boss, State's Attorney Hickman, also serves on the drug task force. A few years ago, Hickman's mother-in-law found herself in a situation not entirely unlike that of Pam Davis. Police found marijuana plants and packages in her town house. They allegedly belonged to her son. Both were arrested. There was a discreet, quick hearing in the county courthouse, and charges against the mother were thrown out. The only witness in her four-minute hearing was her son, who testified she knew nothing about his stash. He pleaded guilty to possession with intent to sell, and received a suspended sentence. The case was handled by an outside prosecutor, to avoid any apparent conflict of interest, says Hickman, but a local judge presided and Davis supporters continue to cite it as an example of the county's double standard. No "common nuisance" charge was brought. After her arrest, Davis became a legalization activist and an outspoken critic of the drug task force. She testified before Congress, she appeared on ABC-TV's "World News Tonight," she fielded phone calls on National Public Radio's "Talk of the Nation." She formed AAMP - Americans Against Marijuana Prohibition - and she carried in her store what she said were legal, sterilized hemp seeds incapable of germinating into marijuana, along with a hemp seed cookbook. "We were, like, giving out the seeds," Kif explains. "They're, like, the second most nutritional thing on the planet next to, like, soybeans. We were passing them out in the store and selling them with this cookbook, basically to show that pot has a lot of uses and has had for thousands of years." From these seeds sprouted a fresh bumper crop of trouble. The day before her trial was to begin last November, police seized pounds of seeds and other items from her store and arrested her for allegedly selling hemp seeds capable of becoming marijuana. There ensued a nightmarish several hours, during which she was handcuffed, strip-searched and held overnight in jail. Davis was ultimately acquitted after the state's own witness, a chemist, would admit only that there was "a possibility" that hemp seeds could turn into marijuana. The chemist's own attempt to germinate the seeds ended in sprouts the size of a comma. At sentencing in the marijuana possession case, Judge Beck not only had a recommendation for leniency from the probation agency, he also had a dozen letters from supporters ranging from Davis's therapist to her next-door neighbor, an official of the Montgomery County Department of Correction and Rehabilitation, who wrote that his family never saw evidence of drugs or alcohol at the Davis residence, elements needed to sustain the "common nuisance" charge, the only felony for which she was convicted. It was, says her current lawyer, Stephen P. Bourexis, "such an ordinary case with extraordinary events attached to it." She had, he said, been treated with undue harshness because of "the label she's carried, the mouthy marijuana advocate." Beck, who declined to be interviewed for this article, accused Davis in court of blaming everyone but herself for her troubles. "You're to blame," he said. "You exposed your children to the drug culture and, by your conduct, told them it was okay." Defiant the day before sentencing, she was less so before Beck: "It was never my intention to cause any shame to this community, to bring any notoriety to this community. ... I've paid enough." Not enough, Beck ruled. Not by two years. After Davis had been led away, Walker said: "We never stomped on anybody's rights. We did it by the book. The system in this case worked." Pam Davis would spend eight weeks "locked down" at the Women's Correctional Institution at Jessup. Her first 11 days she spent in isolation, a normal procedure for new prisoners, the warden says. Deprived at first of cigarettes, she says she hallucinated in her cell from nicotine withdrawal. "Sometimes," she says to a visitor on her 50th day of captivity, "I'm sitting and talking with a group of ladies and I realize, my God, we're all criminals; whatever we've done, society has decided we're all criminals and deserved to be locked behind bars and high fences and razor wire. " `E.T., come home': That's what a lot of girls say to me. I'm like an alien here. I'm not a danger to society. I did nothing to harm anyone. I'll never be sorry for what I did. I stood up and said they're out of line... . "We have a generation of middle-aged hippies in disguise, in short hair and dress suits, living their suburban lives. They're doctors, lawyers, presidents ... and I'm here." She is wearing moccasins, a T-shirt and bluejeans. She looks like hell. "It's all right to drive around drunk and end other people's lives, but it's not all right to take a couple of puffs of marijuana in your own home, in your own bedroom by yourself. This isn't a democracy. It's a hypocrisy." She pauses, then smiles and says, "That's a good quote, isn't it?" A week later, she is standing in front of a judge in Anne Arundel County, where the prison is located and where her lawyers have smartly sidestepped Beck and filed a fresh motion to have her freed on appeal. To Bart Walker's chagrin, Circuit Judge Bruce C. Williams refuses to send the case back to Carroll. And this time, it's not Pam Davis but Carroll County on trial. "This is 1993," declares attorney William H. "Billy" Murphy Jr., a flamboyant former Baltimore judge. "There is a sense of proportionality we all have learned which is lost up there. It's a battle between the strait-laced citizens of Carroll County who believe in the right to a lifestyle free of the pollution of my client's point of view. She represents to them the followers of the Grateful Dead, a throwback to the '60s. Pam Davis is part of a larger culture that Carroll County believes is alien. All of us have to be reminded to be tolerant. This isn't Carroll County. This is America." Pam Davis, he asserts, "is not being prosecuted for marijuana possession. She's being prosecuted for anarchist tendencies, for the quality of her public expressions, for her avowed intention to continue using marijuana... . "This is a case about a lifestyle. It's not about justice or a threat to society. ... This is not a prosecution. This is a persecution." Now it's Walker's turn. "We're not backwards in Carroll County, we're progressive," he says. "In Carroll County, we follow the law and hold people accountable for their conduct. We don't say, gee, it's 1993, we ought to be permissive. ..." Pam Davis was prosecuted for breaking the law, he says. It's just that simple. "This is not about free speech. It's about breaking the law, about a substance that is extremely dangerous. ... I think she's dangerous. Not that she's going to go out and blow somebody away, although I'm not sure. ... She has absolutely no remorse. ... She is contemptuous. ... That's why she's in jail." Answered the judge: "The question is whether justice is served by keeping her incarcerated while she appeals. Normal sentences for this crime don't result in incarceration. Bail is appropriate." On $10,000 unsecured bond, Pam Davis is set free. That was Wednesday. The farm was to be auctioned off by the bank Friday. But late Thursday, the sale was canceled when an anonymous corporation - whose owner doesn't live in Carroll County - bought the mortgage, according to Davis's lawyer, Charles O. Fisher Jr., "not for an investment but because it was not interested in seeing any more injustice done to Pam Davis or her family." On a coffee table in her house, in the small room where she sleeps these days on a couch by the TV, is a book: "Can't Jail the Spirit: Political Prisoners in the U.S." Pam Davis is nothing if not spirited. She has been asked to speak at the 24th annual Independence Day "Smoke-In" in Lafayette Square opposite the White House. Her lawyer has told her to cool it. To speak or not to speak? She agonizes, but not for long, and goes, sporting on her right arm a temporary "tattoo" of a marijuana leaf. "This time last year," she tells the assembled, "I was sitting on the lawn like you folks are and I was a free American, but my life has literally gone to pot. I also have a word for that man who lives across the street. Hey, Bill, why aren't you out here with the rest of your generation?" Pam Davis was, after all this, still in business, although her store's landlord, sick of the publicity has been trying to evict her. A sign in the window, to which the landlord objects, says: "Going-Going-Gone to Pot; Total Liquidation Relocation Sale; 50% Off; May the Seed of Truth We Planted Here Forever Flourish." There is a tombstone with the inscription: "Liberation, RIP." But she will reopen elsewhere, she is sure. As she appeals her sentence and seeks to rebuild her life, she looks forward, among other things, to next January's boutique trade show in New York. It will be a showcase for merchandise such as hers, displaying popular images on T-shirts and other garments, images such as the forbidden green leaf. If she has her way, Pam Davis says excitedly, "everyone in America is going to be walking around with a hemp leaf on their chest." But maybe not in Carroll County. | |||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||
| ||||||||||||||||||||||||||||||
Law Office of Judith S. Stainbrook | ||||||||||||||||||||||||||||||
DISCLAIMER: This web site provides general information only and is not intended to provide legal advice. Copyright© 2008-2009 Law Office of Judith S. Stainbrook All Rights Reserved | ||||||||||||||||||||||||||||||
