In the Court of Special
Appeals of Maryland
Clark v. State
September 26, 2001
HADDEN IRVING CLARK
STATE OF MARYLAND
Salmon, Bloom, Theodore G. (Ret., Specially Assigned), Thieme,
Raymond G. (Ret., Specially Assigned), JJ.
The opinion of the court was delivered by: Salmon, J.
In October 1999, Hadden Clark ("Clark") was convicted of the
murder of Michelle
Dorr ("Michelle"). Prosecutors were able to obtain a second-degree
murder conviction despite the fact that Michelle's body had not
then been located.
After Clark filed this timely appeal, he elected to cooperate with
Montgomery County, Maryland, authorities. On January 7, 2000,
Clark led police to a wooded ravine near Route 29 in Silver Spring,
Maryland. There the police found Michelle's grave site.
In this appeal, Clark does not contend that the State failed to
produce sufficient evidence to prove he murdered Michelle. Instead,
he contends that the lower court committed reversible error in
failing to dismiss his indictment, failing to strike jurors for
cause, failing to suppress various items of evidence that were (allegedly)
illegally obtained, improperly admitting evidence against him, and
improperly restricting his counsel's cross-examination of certain
Part I of this opinion summarizes evidence introduced at trial, as
well as testimony considered at numerous motions hearings held
prior to trial. We have excluded many facts that do not concern
the issues raised in this appeal.
On Saturday, May 31, 1986, Michelle Dorr, age six, disappeared.
That disappearance caused an intensive investigation by the
Montgomery County police. Widespread media attention was also
focused upon Michelle's disappearance.
Immediately prior to her disappearance, Michelle had been staying
with her father, Carl Dorr, at his home on Sudbury Road in Silver
Spring, Maryland. One house separated the home of Geoffrey Clark,
appellant's brother, from Carl Dorr's home. Living with Geoffrey
Clark at the time of Michelle's disappearance was his daughter,
Elizabeth, and appellant. Elizabeth was about Michelle's age and
her frequent playmate.
Carl Dorr reported Michelle missing to the police shortly after 4
p.m. on May 31, 1986. He told the police that when he last saw his
daughter she had been in a wading pool in his backyard, dressed
only in a pink and white polka-dot bathing suit. He said he
discovered her missing about 4 p.m. Initially he thought that she
might be playing with Elizabeth Clark, but her father told him
that he and Elizabeth had not returned home until about 3 p.m. and
that they had not seen Michelle that day.
Shortly after Michelle's disappearance, Mr. Dorr told the police
that he was not sure exactly when he had last seen his daughter,
but he knew it was after she had eaten lunch. He initially
estimated that he saw her last about l p.m., but afterwards his
time estimates varied.
Appellant worked, on May 31, 1986, as a chef at the Chevy Chase
Country Club ("the Country Club") located on Connecticut Avenue in
Montgomery County. On that day, according to later trial testimony,
he was in the process of moving out of his brother's home on
Sudbury Road. That home is about ten minutes driving distance from
the Country Club. Records kept by the Country Club show that at
2:46 p.m. on May 31 appellant started work.
During the first two weeks of June 1986, police intensively
canvassed the neighborhood where Mr. Dorr lived in an attempt to
find witnesses who might have information about Michelle's
disappearance. Among those interviewed were Jonathan Binder and
his wife. The Binders lived at 9127 Sudbury Road, which was
between the Clark's and the Dorr's residences. The Binders told
the police that on May 31, between 11:30 a.m. and 12:20 p.m., they
left their home to go to a baptism. Before they left, Mr. Binder
saw appellant moving a duffle bag and a trunk into his white
O'Neil Cammock was working for the Binders on May 31, starting at
8 a.m. In the afternoon, after he had finished his work, he went
to the Clarks' residence to use a phone.
Mr. Cammock was interviewed by a police officer on June 9, 1986.
The officer's notes regarding that interview read as follows:
Left the Binder residence, then used phone at Clark residence. A
male, does not know his name, was at the house and let him in the
residence via the side door. Used the phone in the kitchen.
Said this white male had a small white female with him and that it
was not Michelle. After using the phone in an attempt to get a
ride home, he left and walked home.
Stated the white man was still at the house with the white female
child, packing things in the truck.
Within nine days of Michelle's disappearance, Montgomery County
police detectives interviewed appellant twice. On June 5,
Detective Wayne Farrell saw appellant loading his white pickup
truck in the driveway at Geoffrey Clark's residence. Officer
Farrell stopped, and appellant told him that he had been at his
brother's home on the day of Michelle's disappearance but had only
been there for approximately two minutes to feed his rabbits.
According to Detective Farrell, appellant was "preoccupied" at the
time of the first interview, and accordingly, the first interview
Three days later, appellant was questioned more intensely by the
police. Appellant told Detective Farrell and another police
officer that he had been at his brother's home between 1:30 and
1:45 p.m. on May 31 and had allowed a man, fitting Mr. Cammock's
description, to use the telephone. When the questioning segued to
matters dealing specifically with Michelle's disappearance,
appellant's demeanor changed - according to later trial testimony
of police officers who were present.
During the second interview, appellant asked to use the bathroom.
While in the bathroom, appellant cried and vomited. When one of
the police officers asked him to talk about what he had done to
Michelle, appellant replied, "I don't know. I may have blacked
out. I may have done something." Afterwards, appellant held his
head and rocked back and forth and said, once again, "I may have
done something. I may have blacked out." Appellant then asked to
speak with his psychiatrist. The police granted the request. After
a conversation with his psychiatrist, appellant asked to leave
police headquarters, and he was permitted to do so.
Despite appellant's strange behavior during the second police
interview, he was not, initially, the prime suspect in the
disappearance. Michelle's father was. Accordingly, Mr. Dorr was
subjected to frequent and extremely intense questioning by the
police. The lead investigator, Lieutenant Michael Garvey, later
admitted that he "played on [Mr. Dorr's] emotions" and was
[e]xtremely aggressive to the point where we would yell and scream.
I would yell and scream at him. I would use profanity. I would
accuse him of things [such as killing Michelle and being a
negligent father]. Basically just to break him down as best I
could, get him emotionally upset and then come back and ask
questions of what he did or what he thought. I would use the
tactic of just suppose something happened and tell me how you
think it would happen .
In addition to conducting such interrogations, police kept Mr.
Dorr under surveillance, tapped his phone, reviewed his bank and
video rental records, questioned his employers, co-workers,
friends, neighbors and family, and used "outside private search
During the weeks and months following Michelle's disappearance, Mr.
Dorr had a series of nervous breakdowns. He had delusions that he
was Jesus Christ and was capable of bringing Michelle back to life.
He was hospitalized, and when he was released, the police
continued to investigate him. He then suffered another mental
Mr. Dorr made several incriminating statements to the police
during the course of their investigation. In one statement, he
claimed to have suffocated Michelle and put her body in a sewer;
in another, he said that he had buried her near his father's
In May of 1988, Michelle's mother made an appearance on "America's
Most Wanted" and told a national television audience that Mr. Dorr
had killed their daughter. When Mr. Dorr saw the program, he went
to his ex-wife's house and demanded to be let in, saying that he
knew where Michelle was and the truth was going to "burn a hole in
In October 1992, Laura Houghteling disappeared. Ms. Houghteling
was a twenty-three-year-old resident of Montgomery County.
Appellant had, at one time, worked as a handyman at the
Houghteling residence. Laura Houghteling's disappearance, like
Michelle's, provoked great media attention in the Washington
By the latter part of October 1992, appellant had become the prime
suspect in the disappearance of both Laura Houghteling and
Michelle. Appellant was questioned by the police on October 24,
1992, about both of the disappearances.
On October 31, 1992, appellant unexpectedly arrived at the Rhode
Island home of his sister, Allison Huggins. In later testimony, Ms.
Huggins described her brother as appearing "very disheveled and
very nervous . . . very agitated." She had never before seen him
that way. Appellant told her that the police were "trying to pin a
crime on him because he was a homeless man." On the same day,
appellant went to the Clark family plot in a cemetery in Wellfleet,
Massachusetts, where he camped for the night.
Appellant returned to Maryland shortly after his trip to
Massachusetts, and on November 6, 1992, the Montgomery County
police conducted a lengthy interrogation concerning the
disappearance of both Laura Houghteling and Michelle. Thereafter,
appellant's truck was searched. The police found various items in
the truck, including an eyeglass case packed with dirt and a map
of a cemetery.
During questioning on November 6, appellant was deprived of sleep.
Additionally, he repeatedly asked to consult with counsel - but
the requests were denied. Despite these violations of his rights,
appellant did not incriminate himself in the matter of Michelle's
In January of 1993, police were able to determine that the map
found in appellant's car depicted the cemetery in Massachusetts
that appellant had visited on October 31, 1992. On January 3,
1993, Sergeant Arthur Parker, of the Wellfleet, Massachusetts,
police department, went to the cemetery and noticed that topsoil
within the Clark family cemetery plot was "disturbed." The
location of this disturbance corresponded closely to an asterisk
on the map found in appellant's pickup truck. In addition, he
noticed rust marks on a cemetery marker near the Clark family plot.
Barbara Murphy, the cemetery caretaker, told Sergeant Parker that
the ground in the Clark plot had not been disturbed the last time
she had been there on October 14, 1992. Bruce Hall, an FBI expert
knowledgeable in the field of soil comparisons, examined part of
the undercarriage of appellant's truck (seized by police on
November 6) and found that the soil consisted of the same
essential minerals as the rust marks left on the cemetery marker.
He also discovered that the disturbed soil area of the Clark
family plot was the likely source of the dirt contained in the
eyeglass case found in appellant's truck.
Massachusetts State Trooper Kathleen Barrett, the handler of a
cadaver dog named Dan, brought Dan to the Wellfleet cemetery on
January 3, 1993. Cadaver dogs are trained to recognize the scents
of blood, tissue, and decomposition of humans. On January 3,
Trooper Barrett released Dan in the Wellfleet cemetery. Dan criss-crossed
the cemetery, then indicated an alert in the area of the soil
disturbance, which was near a headstone marked "Clark." Barrett
took Dan aside and waited while other officers transferred soil (from
the place where Dan had alerted) onto a tarp. She then released
Dan to search again. This time, Dan alerted on the soil lying on
the tarp and not on the hole from which the soil had been
The second cadaver dog to search the Wellfleet cemetery was a
canine named Panzer owned by the Rhode Island State Police. Panzer
worked her way through the cemetery for twelve to fifteen minutes,
then alerted on an area behind appellant's grandfather's grave,
which was the same place where Dan had initially alerted. Panzer
and his handler returned to the cemetery on a later date. The
handler started Panzer from a different location, but the dog
worked her way back to the same spot and alerted once more. The
alert was "less intense," however, than it had been earlier.
In 1993, appellant pled guilty to second-degree murder of Laura
Houghteling and was sentenced to thirty-years imprisonment for
According to later trial testimony, appellant, while imprisoned
for the Houghteling murder, talked, at various times, to five
prison inmates about the disappearance of Michelle Dorr and made
incriminating statements to all of them. What appellant told two
of these inmates is irrelevant for our purposes - but what he
allegedly said to three others is relevant.
In August 1994, two prison inmates, John Friendly and Ben Chambers,
decided to try to get information from appellant concerning
Michelle's disappearance in hopes of receiving more lenient
treatment by the authorities. The two devised a scheme by which
they would convince appellant to tell them what had happened by
pretending that they were going to write a book about appellant's
life. In furtherance of this scheme, Friendly asked appellant if
he had killed Michelle, and appellant (allegedly) replied, "Yeah."
Appellant then told Friendly that the murder had happened while he
was in his brother's house. Appellant explained that he had heard
a noise upstairs; he went out to his truck to retrieve his knives
and returned with a twelve-inch butcher knife. Appellant found
Michelle playing in his niece's bedroom; he then slashed her with
his knife. The blow almost decapitated Michelle. After the killing,
appellant placed Michelle's body in a green trash bag, put the
trash bag into a duffle bag, and put the duffle bag in the back of
his truck. He also told Friendly that he had cleaned up
Elizabeth's room very well, getting rid of everything that had
blood on it. He then drove his truck part way to the Country Club,
unloaded his bicycle from the back of the truck, and biked the
rest of the way to his place of employment. Appellant told
Friendly that he knew Michelle because she always came to his
brother's house to play with his niece. Chambers added a few
details but basically claimed that appellant had told him the same
story as the one related by Friendly.
James Beckette testified that he was a friend of appellant's
between September 1995 and May 1996 while the two were inmates at
Hagerstown. Beckette recounted that once, when he and appellant
were chatting, appellant admitted that he had killed Michelle.
Appellant added that he had known Michelle as a friend of his
niece. Beckette inquired, "Why did you do it?" and appellant
replied, "I didn't mean to do it." Beckette described appellant as
"deep in thought . . . almost childlike . . . very worried, very
upset" during this conversation. Abruptly, however, appellant "came
out of a fog . . . realized what he had said to me," and stated
that he did not want to talk about the subject any more.
Beckette read a newspaper article about the Dorr case that named
the detectives who were still investigating the disappearance. He
then contacted the detectives named in the article and told them
of appellant's confession.
On September 23, 1998, appellant was interrogated at length by
Montgomery County police officers. The interrogation was
videotaped and later played to the jury at appellant's trial,
after it had been redacted to eliminate all references to the
Laura Houghteling case. In the interview, appellant denied making
incriminatory statements about Michelle's disappearance to any of
his fellow inmates. He acknowledged that he knew Michelle because
she was a playmate of his niece. He also acknowledged, ambiguously,
"I might have seen [Michelle] while she was alive in the house."
He admitted having been at his brother's home the day Michelle
disappeared but denied speaking with Mr. Cammock. Arguably, his
denial that he had spoken with Mr. Cammock contradicted what he
told the police on June 8, 1986.
Appellant said in the September 23, 1998, interview that he rode
his bicycle to work on the day Michelle disappeared and estimated
the bike trip took approximately an hour. He stated that he was
moving out of his brother's house that day due to problems he was
having with Geoffrey.
During the September 1998 interview, appellant provided details
regarding the trip he took to Wellfleet cemetery late in October
1992. He said that he left Maryland because the police
investigation made him uncomfortable. He acknowledged that he
usually carried shovels and other tools in his truck for
landscaping work. Asked about the topsoil disturbance in the Clark
plot at the cemetery, he speculated that "[s]omething got dug up.
Maybe some dog was looking for some bones . . . maybe a cat."
Appellant was questioned extensively about incidents not directly
concerning Michelle's disappearance. To these questions, he
demonstrated a clear recollection of events. Yet, when he was
asked about matters directly connected with Michelle's
disappearance and his visit to the cemetery in late October 1992,
appellant's memory seemed hazy. When asked about his ability to
remember some things, but not others, appellant replied,
ambiguously, "You make me remember. When you do something painful,
you don't want to remember."
In 1998, appellant was incarcerated in Hagerstown where Thomas
Sheasley, a correctional caseworker, was employed. Mr. Sheasley
got along well with appellant and at trial testified as to three
conversations he had with appellant that (arguably) incriminated
the latter. Those conversations will be described, infra, in Part
Because of what Clark told his fellow prisonmates, the police
sprayed Elizabeth Clark's bedroom with luminol, a chemical that
causes blood (invisible to the naked eye) to become luminescent.
Using this preliminary test, blood was found on and in the
bedroom's hardwood floor. The areas of luminescence were then
swabbed for analysis and the floor was removed in its entirety and
subjected to further testing.
FBI forensic consultant Robert Spalding, an expert in serology and
blood pattern analysis, found that the floor contained evidence of
blood in eighty-five locations, indicating to him that there was
more blood present than would have come from normal childhood
mishaps, such as nosebleeds, etc. Spalding believed that a beach
towel could have been used to absorb a large quantity of blood
that had once been present.
Defense witness Megan Clement, an expert in mitochondrial DNA
analysis, tested the floor samples, performing comparisons with
the blood of Michelle's mother and of appellant. Clement concluded
that the DNA extracted from the floor samples could not have come
from appellant, nor could the blood have come from Michelle or any
other child of Michelle's mother. Some of the blood on the floor,
however, was insufficient in quantity to perform DNA testing.
Additional facts will be set forth as necessary to answer the
eleven questions appellant presents.
Appellant first contends that the indictment handed down by a
Montgomery County grand jury should have been dismissed because an
assistant state's attorney intentionally withheld exculpatory
evidence. In support of that contention, appellant focuses on the
expert testimony of Susan Ballou, who told the grand jury that
results of the DNA tests of blood recovered from the floor of
Elizabeth Clark's bedroom could have come from appellant or from
Michelle Dorr, but that the tests were inconclusive. That
testimony was believed to be true by the witness. But unknown to
Ms. Ballou when she testified before the grand jury, but known at
that time by an assistant Montgomery County prosecutor, was the
fact that additional DNA testing had been performed by a different
laboratory and that these later DNA tests had excluded both
Michelle and appellant as the source of the blood. Therefore, the
grand jury was led to believe that the DNA tests did not rule out
the possibility that the blood tested was that of either Michelle
or appellant. Because the State did nothing to correct this
misinformation, appellant's counsel argues that the indictment in
its entirety should have been dismissed.
On September 21, 1999, Judge Paul Weinstein conducted a hearing
regarding appellant's motion to dismiss based upon prosecutorial
misconduct before the grand jury. Judge Weinstein found that an
assistant Montgomery County prosecutor knew of the more recent DNA
lab test when Ms. Ballou appeared before the grand jury. He also
found, however, that the failure to disclose the results of the
most recent lab test to the grand jury was inadvertent. He
concluded that the prosecutor's unintentional failure to disclose
exculpatory material did not warrant a dismissal of the indictment.
We agree with Judge Weinstein's conclusion.
The grand jury is an inquisitional and accusatory body. It does
not determine the guilt or innocence of the accused as that
decision is vested in the petit jury or court, if there be a non-jury
trial. That an indictment is founded on tainted evidence is no
ground for dismissal. . . . The rules of evidence are not
applicable to grand jury proceedings. Hopkins v. State,
19 Md. App. 414, 426 (1973).
Nineteen years after we decided Hopkins, the United States Supreme
The grand jury's functional independence from the Judicial Branch
is evident both in the scope of its power to investigate criminal
wrongdoing and in the manner in which that power is exercised. . .
Given the grand jury's operational separateness from its
constituting court, it should come as no surprise that we have
been reluctant to invoke the judicial supervisory power as a basis
for prescribing modes of grand jury procedure.
It is axiomatic that the grand jury sits not to determine guilt or
innocence, but to assess whether there is adequate basis for
bringing a criminal charge. . . . As a consequence, neither in
this country nor in England has the suspect under investigation by
the grand jury ever been thought to have a right to testify or to
have exculpatory evidence presented. United States v. Williams,
504 U.S. 36, 48-52 (1992) (citations
omitted) (emphasis added).
Thus, the Williams Court refused to dismiss the defendant's
indictment under federal rules that were designed to insure the
integrity of the grand jury's functions, even though, in Williams,
a prosecutor had withheld exculpatory evidence from the grand jury.
The Supreme Court said that the grand jury had no obligation to
consider all "substantial exculpatory" evidence, and therefore the
prosecutor had no binding obligation to present it. Id. at 53.
Although Maryland appellate courts have heretofore not had
occasion to analyze Williams, the Court of Appeals previously has
quoted United States v. Calandra, 414 U.S. 338 (1974), for the
[t]he grand jury's sources of information are widely drawn, and
the validity of an indictment is not affected by the character of
the evidence considered. Thus, an indictment valid on its face is
not subject to challenge on the ground that the grand jury acted
on the basis of inadequate or incompetent evidence. . . . Everhart
v. State, 274 Md. 459, 487 (1975). (Emphasis added.)
The Maryland Court of Appeals has also refused to dismiss
indictments for several other types of flaws alleged to have been
caused by the prosecutor. In Bartram v. State, 280 Md. 616 (1977),
the Court held that dismissal of the charges was not warranted
even if the prosecutor made improper remarks about a previous
indictment and presented the case in a manner that impermissibly
attempted to influence the grand jury. Id. at 631-33. The Bartram
Court quoted, with approval, from United States v. Swift,
186 F. 1002, 1018-19 (N.D. Ill.
1911), and said:
The authorities cited by defendants, in which indictments were
quashed because the accused was called before the grand jury and
examined, or because private counsel was permitted to appear and
address the grand jury, are not in point. In those cases the
indictments were quashed, not because incompetent evidence was
received, but because the proceedings of the grand jury were
unconstitutional and unlawful. Clearly, if the grand jury were
improperly impaneled, or if certain classes of persons unlawfully
were excluded from serving thereon, the matter could be brought to
the attention of the court, and disposed of, by a motion to quash
The two propositions are radically different. It is one thing to
quash an indictment because the accused, in violation of his
constitutional right, is brought before the grand jury and
browbeaten or maltreated, or because private counsel is permitted
to harangue the jurors, or because other like fundamental wrongs
are permitted, and quite another thing to quash an indictment
because a witness is asked concerning facts which mayhap do not
tend to prove the charge which the grand jury is to inquire into.
The one reaches to the organizational or fundamental power of the
grand jury to act; the other, granting that the grand jury was
properly impaneled and had the power to proceed, involves the
proposition that it acted upon incompetent evidence, and therefore
reached an irrational conclusion. Bartram, 280 Md. at 625-26 (emphasis
In State v. Bailey, 289 Md. 143, 149-150 (1980), the Court noted
that Maryland's appellate courts have been "steadfast" in holding
that a motion to dismiss is not a proper vehicle for testing the
admissibility of testimonial evidence at trial and that a
defendant is not entitled to dismissal because the prosecution
presented tainted evidence to the grand jury.
Appellant has directed our attention to several cases from sister
jurisdictions where the courts have said that a prosecutor has an
affirmative duty to present exculpatory evidence to the grand jury.
Three of those cases (Frink v. State, 597 P.2d 154 (Alaska 1979);
Miles v. United States, 483 A.2d 649 (D.C. 1984); State v. Moore,
438 N.W. 2d 101 (Minn. 1989)), cite various versions of the ABA
Standards for Criminal Justice as the basis for requiring the
prosecutor to present exculpatory evidence to the grand jury. The
1980 ABA Standard provides: "No prosecutor shall knowingly fail to
disclose to the grand jury evidence which would tend to
substantially negate guilt." 1 ABA Standards for Criminal Justice
§ 3-3.6(b) (2d ed. 1980).
While these rules and standards require the prosecutor to disclose
evidence tending to negate guilt, the District Court in U. S. v.
415 F. Supp. 1033 (D. Md. 1976),
Only in a case in which the evidence clearly would have negated
guilt or undermined the authority of the grand jury to act at all
should a court act. Otherwise, a court runs the risk of
interfering too much with the grand jury process and does so
largely on the basis of guessing what evidence a grand jury might
have found persuasive. Id. at 1042.
In the case at hand, the evidence withheld clearly would not have
The out-of-state cases cited by appellant are ones based on
statutes peculiar to that jurisdiction or are from jurisdictions
whose relevant common law appear to be different from Maryland's.
Moreover, of the cases cited by appellant, only two actually
dismissed the indictment based on the prosecutor's failure to
present exculpatory evidence. See Johnson v. Superior Court, 539
P.2d 792, 796 (Cal. 1975) (based on Cal. Penal Code § 939.7);
People v. Abbatiello,
494 N.Y.S.2d 625, 627 (N.Y. Sup. Ct.
1985) (based on New York common law).
No case cited by the appellant has held that the prosecutor's
failure to disclose exculpatory evidence to the grand jury ipso
facto required dismissal of the indictment. In the cases cited by
appellant, the courts appear to have adopted the view that in
order to dismiss the indictment, the defendant must show that,
given the totality of the evidence presented to the grand jury,
the omitted evidence would likely have precluded the grand jury
from arriving at a decision to indict the defendant. This is, of
course, a very high standard. Appellant made no such showing; in
fact, appellant does not even argue that this high standard was
met. Thus, even if Maryland adopted the views espoused in the
jurisdictions cited by appellant, it would be improper to dismiss
Appellant argues that "the trial court erred in refusing to strike
for cause jurors aware of the fact that appellant had been
suspected of killing Laura Houghteling, or who could otherwise not
be impartial as a result of massive pretrial publicity concerning
the Houghteling and Dorr cases." Appellant points to answers given
by nine jurors, each of whom appellant claims should have been
struck for cause.
Appellant's counsel was given twenty peremptory challenges but
used only nineteen. By use of his peremptory challenges, none of
the nine jurors actually served on the jury that convicted
appellant. Therefore, even if we assume, arguendo, that the trial
judge should have struck for cause one or more of the nine
challenged jurors, that assumed error was waived. This principle
was made clear in the case of White v. State, 300 Md. 719, 728-29
(1984), where the Court said: "If disqualification for cause is
improperly denied, but the accused has not exercised all allowable
peremptory challenges, there is no reversible error." Additionally,
in Parker v. State, 227 Md. 468, 471 (1962), the Court stated, "[W]e
think it is clear that the defendant (who had not exhausted his
challenges) was not prejudiced"; see Thomas v. State,
50 Md. App. 286 (1981); Earhart v.
48 Md. App. 695 (1981); McCree v.
33 Md. App. 82 (1976).
Appellant contends that the trial judge erred in admitting hearsay
evidence during James Beckette's testimony.
As already mentioned, James Beckette testified that appellant
confessed that he had killed Michelle Dorr. He also testified that,
about eighteen months after appellant's confession, he read an
article in The Washington Post magazine about the Michelle Dorr
investigation and learned the names of the detectives who were in
charge of the investigation. Shortly thereafter, he wrote a letter
to two detectives mentioned in the article. On direct examination
by the prosecutor the following occurred:
Q: And in the letter that you wrote to Detective Mike Garvey and
Sergeant Bob Phillips, did you tell them what you have told this
MR. SALZMAN [Defense Attorney]: Objection.
THE COURT: You can answer yes or no.
THE WITNESS: Yes.
Appellant contends that the court erred when it allowed this
answer because it was hearsay and comes within no exception to the
rule barring admission of hearsay evidence. Appellant points out
that "hearsay" is "a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted." See Md. Rule
5-801(c). "Statement" means "(1) an oral or written assertion or
(2) non-verbal conduct of a person, if it is intended by the
person as an assertion." See Md. Rule 5-801(a). When Mr. Beckette
answered "yes" to the question at issue, he was testifying, in
effect, to the following: In the letter that I wrote to Detective
Garvey and to Sergeant Phillips, I told them the same thing that I
have told you (the jury).
We agree that this statement is hearsay and comes within no
But "error" for appellate purposes "may not be predicated upon a
ruling that admits or excludes evidence unless the party is
prejudiced by the ruling . . . ." Md. Rule 5-103(a). Trial in this
case lasted eighteen days. The fact that the witness's version of
what appellant said did not vary was hardly surprising in that
appellant said so little to Beckette when he confessed.
Moreover, almost all of the lay witnesses called by the State
underwent cross-examination by the defense concerning
inconsistencies between statements made pre-trial and their trial
testimony. Under these circumstances, if the question calling for
a hearsay answer had not been asked, the jury would have, in all
likelihood, inferred that Beckette's statements were consistent by
the mere fact that he was not cross-examined about any
Lastly, the fact that Beckette's letter was consistent with his
trial testimony only marginally bolstered his credibility.
Beckette, like all the "jailhouse witnesses," was attacked not
because his memory was hazy, but because, according to appellant,
he made up the stories about appellant's confession to win favor
with the authorities who held him captive.
Under these circumstances, we hold that the admission of the
objected-to "yes" answer by Beckette was harmless beyond a
Appellant contends that the trial judge erred in allowing
Detective Garvey to read to the jury his notes from his interview
of O'Neil Cammock on June 9, 1986 - which we quoted verbatim in
Part I. Appellant contends that those notes were hearsay and that
the hearsay exception set forth in Rule 5-802.1(e) was
inapplicable because Mr. Cammock never "adopted" the June 9, 1986,
Rule 5-802.1(e) excepts from the hearsay rule:
A statement that is in the form of a memorandum or record
concerning a matter about which the witness once had knowledge but
now has insufficient recollection to enable the witness to testify
fully and accurately, if the statement was made or adopted by the
witness when the matter was fresh in the witness' memory and
reflects that knowledge correctly. (Emphasis added.)
During the initial investigation, Mr. Cammock told police
investigators that the man who allowed him to use the telephone at
the Clark residence was accompanied by a "small white female" who
was not Michelle. At trial, however, Mr. Cammock's testimony
contained no reference to having seen a child in the Clark
residence. Although he recalled talking with police, Mr. Cammock
testified that he did not then remember seeing the child, but that
whatever he said in the statement "was closer in my memory then."
When testifying at trial, Mr. Cammock also said that Garvey's
notes were more accurate than his present memory (thirteen years
later). And, while Detective Garvey admitted that he did not
recall having shown Mr. Cammock the actual piece of paper upon
which he had written his notes, he testified that after writing
down what Mr. Cammock had said "we went back over it again
verbally to make sure we had everything right."
Appellant focuses on the word "adopted" as used in Rule 5-802.1(e)
and claims that Mr. Cammock's June 9, 1986, statement was not "adopted"
by the witness when the matter was fresh and accurately reflected
his memory. But, the rule requires the statement to have been
"made or adopted" by the witness. The combined testimony of
Detective Garvey and that of Mr. Cammock showed clearly that the
out-of-court declarant (Cammock) "made" the statement ten days
after Michelle disappeared -when his memory was still clear and
accurately set forth his earlier knowledge.
The trial court did not err in allowing Detective Garvey to read
his notes to the jury because the requirements of Rule 5-802.1(e)
The State called as a witness Thomas Sheasley, a correctional case
manager at the Maryland Department of Correction who was employed
at a prison in Hagerstown, Maryland. In January 1998, Mr. Sheasley
came to know appellant at the prison. The two sometimes played
chess and enjoyed a friendly relationship.
At trial, Mr. Sheasley was asked by the prosecutor about three
statements that were made by appellant in his presence. The first
statement was made on October 27, 1998, during a meeting to review
appellant's housing situation. The meeting was entirely voluntary
on appellant's part and took place approximately one month after
appellant had been indicted for the murder of Michelle Dorr.
During the meeting, a correctional officer who was present, a
Lieutenant Anderson, asked appellant, in a "whimsical way" if he
had killed "the girl." Appellant replied that "he could not speak
about that." Another person in attendance at the meeting then
asked appellant how the police had treated him during
interrogation. According to Mr. Sheasley, appellant "sort of
nodded" at the implication that he had been treated harshly by the
Montgomery County police. Appellant then said that the police had
not been honest and truthful with him; he next complained that the
press, too, had lied about him. As an example of untruthful press
coverage, appellant said, "[O]ne of the lies is that I was not
living with my brother at the time she was killed." When Sheasley
heard that remark, he looked at appellant and said, "Who ever said
she was killed?" According to Sheasley, appellant then gave him a
"cold hard stare."
Appellant filed a motion in limine to prevent the State from
introducing testimony about appellant's having said that he "was
not living with my brother at the time she was killed." Counsel
contended that the statement was one made by appellant when he was
under "custodial interrogation" and should be excluded because he
had not been given his Miranda
Prison confinement does not necessarily equate with "custody"
within the meaning of the Miranda decision. Hamilton v. State,
62 Md. App. 603, 611 (1985). We said
We must not forget that "Miranda . . . was aimed not at self-incrimination
generally . . . but at compelled self-incrimination - the inherent
coercion of the custodial, incommunicado, third degree questioning
process." In other words, "[t]he purpose of Miranda was to
ventilate the musty and at time mysterious precincts of the
interrogation room by opening the door to a lawyer or at least
apprizing the suspect fully of his legal rights in that regard."
The Miranda Court, in deeming custodial interrogation as "inherently
coercive," decried that "such an interrogation environment is
created for no purpose other than to subjugate the individual to
the will of his examiner. This atmosphere carried its own badge of
Thus, we can see that it is the interrelationship of the examiner
and the environment that creates the coercive atmosphere -that
determines custody vel non. Although the environment here, a
prison, leads us to thoughts of custody, there is nothing coercive
whatsoever in the casual questioning by the informer Fowler (appellant's
acquaintance or accomplice) who ostensibly was not a police
interrogator, that would functionally or effectively subjugate
appellant to Fowler's will. Accordingly, the trial court committed
no error in admitting these statements. Id. at 616 (citations
The relevant factors to be considered in determining whether
questioning is custodial were set forth in Whitfield v. State, 287
Md. 124, 141 (1980), a case that did not involve questioning while
in prison. Those factors are:
(1) the location and duration of the session,
(2) how many police were present,
(3) what was said and done,
(4) whether the defendant was placed under actual physical
restraint or whether there were "things equivalent" to actual
restraint, such as drawn weapons or a guard at the door,
(5) the manner in which the defendant arrived at the interview,
(6) whether he was detained or arrested or, instead, permitted to
leave after the interview. Id.
All of these factors are relevant to ascertaining the
determinative factor, i.e., whether the defendant, as a reasonable
person, would have felt free to break off the questioning.
In this case, the meeting with Mr. Sheasley was one of several
that appellant had attended in a regular series of housing reviews.
The officials at the meeting were not police officers but merely
state agents who were required to be present by administrative
regulations. Appellant was free to attend or not to attend the
administrative meeting, and at the conclusion of the meeting, he
returned to his quarters in the prison. There was no indication
that appellant, while at the meeting, was under "actual physical
restraint" or "things equivalent," such as drawn weapons or a
guard at the door.
Like the trial court, we find it of great significance that
appellant had the option of attending or not attending the housing
meeting. It is also significant that appellant, in fact, exercised
his right to decline answering certain questions while at the
meeting. Moreover, it is evident that appellant felt free to
change the subject once he was asked a question that made him
uncomfortable. Miranda, as we have seen, becomes applicable only
when one's freedom of action, or one's freedom of movement, is
curtailed to a degree that a reasonable person would not feel free
to break off questioning. Given the frequency and regularity of
appellant's housing meetings, as well as the fact that his
attendance was voluntary, and considering appellant did break off
questioning as to at least one subject, appellant's freedom was
not curtailed to the extent necessary to render him "in custody"
within the meaning of Miranda. The trial judge did not err in
allowing into evidence the statement "I was not living with my
brother . . . [when] she was killed."
A second statement made to Mr. Sheasley was objected to at trial
but was not mentioned in the motion in limine. The issue arose
when Mr. Sheasley was asked about some notes he wrote concerning a
conversation he had with appellant in November of 1998. Trial
counsel for appellant made clear that he objected to Mr.
Sheasley's testimony regarding the contents of the notes, but he
did not object to the prosecutor asking leading questions in
regard to what appellant had said.
The following then transpired:
Q [PROSECUTOR]: Mr. Sheasley, did Mr. Clark stay [sic] to you, "I
have two storage units. Well, there may be more"?
A [MR. SHEASLEY]: Yes.
Q: And then did he say, "I purposefully told you that because I
want . . . to keep you guessing"?
Q: And did he then go on to say, "I don't want you to really
A: Yes, he did.
Q: Okay. And did he then tell you that "It was like when I talked
to the police. If they're going to play games with me, I'll play
games with them"?
A: Yes. He made those statements.
Q: And what was Mr. Clark's demeanor during that conversation?
A: During that conversation, I would say typical, his typical
demeanor. Perhaps a little agitated, but typical demeanor at that
On appeal, appellant contends that the trial judge erred in
allowing this testimony because appellant was not advised of his
Miranda rights prior to making the statements. This contention is
without merit. At no point, either during direct or cross-examination,
was it established that appellant divulged this information as a
result of questioning. And, in order for the Miranda rule to apply,
it must be established that the statements made by the suspect
were made as a result of interrogation. Whitfield, 287 Md. at 142.
The prosecutor also asked Mr. Sheasley on direct examination what
appellant had said to him about the "police efforts" in digging up
or looking for Michelle Dorr's body. Mr. Sheasley answered that
appellant told him that he could not understand why the police
were searching for Michelle's body in the "New Jersey area." He
also told Mr. Sheasley that "there was no need for the police to
be digging in that area." This testimony was not objected to at
trial; therefore, any objection to it was waived. See Md. Rule
One of the State's theories in this case was that appellant, on
Saturday, October 31, 1992 (Halloween), went to the Wellfleet
cemetery where his father and grandfather were buried, dug up the
corpse of Michelle Dorr and took it elsewhere. According to the
State's theory, appellant took these actions because he realized
at that point that the police were focusing on him as the person
who had killed Michelle.
In support of this theory, the State produced a witness who had
seen appellant at the cemetery on October 31st and saw him pull
his truck up next to the Clark family grave markers. There was a
shovel in the back of the truck at that time. Additionally, the
State produced evidence indicating that appellant's truck had
struck one of the grave markers directly across the road from the
Clark family cemetery plot.
Moreover, according to the State's evidence, the ground near
appellant's grandfather's grave had been disturbed between October
14, 1992, and January 3, 1993.
As mentioned earlier, Trooper Kathleen Barrett of the
Massachusetts State Police Department testified that, on January
3, 1993, her German Shepherd dog, Dan, alerted at the areas of
disturbed soil in the Clark family plot. Trooper Matthew Zarrella
of the Rhode Island Police Department testified that his dog "Panzer"
likewise alerted at the same spot in September 1995.
At trial, several questions asked by the prosecutor of Trooper
Barrett and Trooper Zarrella were objected to by appellant's
counsel. The trial judge overruled the objections, which appellant
now contends was reversible error. The pertinent question asked of
Trooper Barrett and her answer were:
Q [PROSECUTOR]: When the dog went to that particular spot [the
area where the ground had been disturbed] and began to dig, what
did that indicate to you as a trainer? . . . .
A: It indicated to me that he (Dan) had located one of three
things that he was trained to locate under those circumstances,
which is, human blood, human decomposition, and human tissue.
The objected-to questions addressed to Trooper Zarrella were quite
Q [PROSECUTOR]: . . . [A]nd what did she [Panzer] do? How did she
A [TROOPER Zarrella]: She laid down.
Q: Okay. And what did that tell you?
A: She had discovered or detected the presence of human
decomposition. She had detected the [sic] certain chemical
byproducts that are present in human decomposition that we trained
her to detect.
Troopers Barrett and Zarrella both admitted that cadaver dogs make
mistakes, as do their handlers. For instance, a dog handler can "cue"
a dog verbally or with body language. Also, in one case, unrelated
to this one, Dan possibly made a false alert. It was not clear to
Trooper Barrett, however, if Dan was mistaken because another
cadaver dog alerted at the same spot as did Dan and because the
crime lab had not yet completed its tests to determine if a piece
of clothing found where Dan alerted contained human blood.
When counsel for appellant objected to the questions of the dog
handlers concerning how they interpreted the "alerts" by their
cadaver dogs, appellant's counsel said that the objections were on
the same grounds as set forth in his unsuccessful pretrial motion
At the hearing concerning the motion in limine, appellant
presented the testimony of Dr. Ann Marie Mires, the Director of
the Identification Unit of the Boston Medical Examiner's Office,
who qualified as an expert in the field of forensic anthropology
and the identification of human remains. Dr. Mires has experience
using dogs to locate human remains in cemeteries. In light of
modern embalming and burial practices, she believed a properly
trained cadaver dog would be able to distinguish a legitimate
grave from a clandestine one within a cemetery because during
embalming all body fluids are drained from the corpse, whereas
persons who bury corpses in clandestine graves usually do not
remove body fluids.
According to Dr. Mires, there are only three tools available to
locate clandestine burials of human bodies: Trained cadaver dogs,
ground penetrating radar, and shovels. In Dr. Mires's opinion, the
alert of a cadaver dog, standing alone, is not considered
sufficient to show to a reasonable degree of scientific certainty
that human remains are or were present at the location of the
alert. After a cadaver dog alerts, digging or ground penetrating
radar are used. But the fact that neither of these instruments
reveals a body does not necessarily invalidate the cadaver dog's
alert, because there is no chemical test yet devised that can
confirm whether a body had once decomposed at a particular site.
Dr. Mires is participating in the preliminary stages of scientific
work to develop such a chemical test.
Dr. Mires testified that the use of cadaver dogs "in trying to
determine the existence or the one-time existence of human remains
at a particular location is a concept that is widely accepted in
the forensic anthropology and pathology fields." Despite this
reliance, a dog can falsely alert because water flowing from the
site of a human cadaver may cause the dogs to alert at a place
removed from the spot where a body was buried or because the dog
is fatigued or because the handler misreads a dog's actions.
At the conclusion of the motion in limine hearing, defense
counsel's argument was, in pertinent part, as follows:
I think what the State is - one of the key points here that the
State is missing is when Dr. Mires says, "Yes, these dogs are
widely accepted as tools in this field of forensic anthropology,"
we all agree on that. So if they were just offering them as a tool,
that would be acceptable.
And they are a tool in the sense that just like the . . . the drug
detecting dogs are a tool and can be used to obtain probable cause
to go search an area, what Dr. Mires explained was the dog is used
as a tool in the sense that it focuses the investigators on where
else to look, where to use in [sic] the ground penetrating radar
to see if there is anything under there, and if the dog alerts,
then you also know where to go to start digging with a shovel.
And so in that sense, they clearly are widely -I definitely agree
that they are widely accepted in her field as a tool.
What they are not accepted as is proof - as being offered as proof
that human remains were present in the absence of any physical
evidence whatsoever that human remains were there. No clothing, no
teeth, no skin, no bones, no hair, no fibers, no jewelry, nothing,
no bags, no containers, no nothing. That is what is not accepted.
Appellant now contends that Trooper Barrett's and Trooper
Zarrella's testimony regarding cadaver dogs was expert testimony.
We agree. See Terrell v. State,
3 Md. App. 340, 346-51 (1968) (setting
forth the requirements for the admission of evidence relating to
tracking dogs). Appellant also alleges that Maryland Rule 5-702 is
applicable. That rule reads:
Expert testimony may be admitted, in the form of an opinion or
otherwise, if the court determines that the testimony will assist
the trier of fact to understand the evidence or to determine a
fact in issue. In making that determination, the court shall
determine (1) whether the witness is qualified as an expert by
knowledge, skill, experience, training, or education, (2) the
appropriate-ness of the expert testimony on the particular subject,
and (3) whether a sufficient factual basis exists to support the
Appellant does not question the qualifications of either trooper
as a dog handler. He does contend, however, that there was
insufficient factual basis to support the expert testimony of the
dog handlers. Appellant argues:
[T]here was no corroboration for the alert; no body was found at
the spot where the dog alerted. Dan's success record for detecting
evidence of human remains was checkered, at best. Dr. Mires
admitted that evidence of the alert of a cadaver dog was not
enough, by itself, to prove the presence (or presence at some time
in the past) of human remains, to a reasonable degree of
scientific certainty. She admitted that the use of cadaver dogs to
locate the fluids that result from decomposition is a science that
is in its preliminary stages; it is not yet fully accepted. Dr.
Mires agreed with the prosecutor's characterization of the
endeavor as "cutting edge." Accordingly, because the science
itself is in such preliminary stages, and because there was no
showing of the expertise of Dan, a factual basis was lacking, and
the court erred in admitting the evidence.
We will take appellant's last point first, i.e., that there was no
showing of Dan's expertise. Prior to giving her expert testimony,
Trooper Barrett testified that to become a cadaver dog the canine
must go through seventeen weeks of "utility training," which
covers article search, tracking, and "controlled aggression." If a
dog successfully completes that course, certain elite animals are
selected to become cadaver dogs. They then undergo additional
training. According to Trooper Barrett, Dan was an apt pupil in
that he was extremely independent, friendly, and had "phenomenal
Trooper Barrett gave an example of Dan's success in finding
cadavers. She testified:
We were called to a residence. A female had been missing from [her]
home. [She had been missing] . . . for quite some time. We came
into the house, the dog immediately went to the cellar, started to
dig, . . . knocking things over.
We later found that this is where the body had actually been
stored. We went up into the master bedroom, . . . [and Dan]
alerted . . . on the wall, standing on the wall, and then he went
into a small crawl space, and I lost sight of him.
And he tried to come back but he was falling [through] . . . the
insulation . . . . And he came back; he had a garbage bag in his
mouth, and in the garbage bag was the victim's purse. And lab
results indicated that there was body fluids . . . .
As additional examples of Dan's expertise, Trooper Barrett said
that Dan had located seven bodies that were under water. Once he
alerted on a body that was in a stone quarry, 157 feet below the
Dan has been certified as a qualified cadaver dog once a year
since 1991 by the New England State Police Association (NESPA). He
has also been certified as a cadaver dog once every two years
since 1991 by the North American Police Work Dog Association.
Testing for certification takes one week. In order to be certified,
blood, tissue, or other human remains are hidden and the canine
must find the hiding place. During certification, Dan never failed
to find what was hidden. Moreover, he never, in training, alerted
on "false holes," which are dug in attempts to deceive the dogs.
Based on all the above, we disagree with appellant's contention
that the State failed to show Dan's expertise.
It is true, as appellant points out, that Dr. Mires testified at
the motion in limine hearing that the fact that a cadaver dog
alerted at a certain spot was "not enough by itself" to prove the
presence (or presence at some time in the past) of human remains
to a reasonable degree of scientific certainty. But here, the
alert by Dan at the spot in the Clark family graveyard did not
stand alone. Other circumstantial evidence pointed to the fact
that there had been a clandestine burial at that spot, i.e., the
fact that the Clark plot had been disturbed between October 14,
1992, and January 3, 1993, that appellant was present with his
truck and shovel at the grave site on October 31, 1992, that a
second cadaver dog alerted at the same spot two and one-half years
after Dan's alert, and that the spot where the cadaver dogs
alerted matched the spot, marked by an asterisk found on a map in
appellant's truck on October 24, 1992. Under all these
circumstances we believe that there was adequate foundation for
the admission of the testimony regarding the officers'
interpretations of the actions of Dan and Panzer.
Appellant also argues that the evidence regarding the alerts by
the cadaver dogs was inadmissible because "it was unreliable"
and Maryland Rule 5-702.
In support of that argument, appellant says:
The process of training dogs to alert on the products of
decomposition, as opposed to training them to alert on cadavers
themselves, is not generally accepted within the scientific
community, and accordingly, it does not meet the standard set
forth in Md. Rule 5-702 or in the Frye/Reed cases. As argued supra,
Dr. Mires admitted that research into this training and use of
dogs is in the preliminary stages, and is not yet fully accepted.
It is not sufficient to show, to a reasonable degree of scientific
certainty, that human remains are or have been present. Since this
technique for finding and identifying soil in which human remains
were once present is not generally accepted by the scientific
community, the judge erred in admitting evidence relating to it.
That argument is based on a false premise, i.e., that Dr. Mires "admitted
that research into [the] . . . training and use of dogs is in the
preliminary stages, and is not yet fully accepted." Dr. Mires
never testified that research that delves into the training and
use of cadaver dogs is in the preliminary stages. What was,
according to her testimony, in the "preliminary stages" was her
own work in attempting to discover a way of detecting fat, muscle,
liquid, and other human byproducts that are deposited in the soil
when a human body is decomposing. And, as already mentioned, Dr.
Mires said that the use of cadaver dogs in trying to determine the
existence, or the one-time existence, of human remains at a
particular location is a widely accepted practice in the fields of
forensic anthropology and pathology. Under these circumstances,
the Frye/Reed test was met.
Appellant gave a statement to the police on September 23, 1998,
without an attorney present. In that statement, he did not admit
that he had any role in the disappearance of Michelle Dorr. He
made statements, however, that were somewhat incriminating.
Appellant contends that the motions judge erred in failing to
suppress the September 23, 1998, statement. Two grounds are
advanced in support of that argument.
Appellant first contends that his September 1998 statement was
involuntary. Second, he maintains that the dictates of the Miranda
decision were not met because appellant asked for an attorney in
1992 when he was first interrogated by the police but was never
supplied with counsel during his September 23, 1998, interrogation.
As mentioned earlier, on November 6, 1992, appellant was
interrogated by several Montgomery County police officers,
including Detective Edward Tarney. During that interrogation,
appellant repeatedly asked for the assistance of counsel. His
requests were denied. Moreover, appellant was physically abused by
the police in that interview. The State concedes that the
interrogation in 1992 was improper. This concession is well
founded. Judge Weinstein, a capable and experienced jurist,
described that interrogation as "the worst I have ever seen."
Appellant argues that the involuntary nature of his 1992 statement
"carried over" to and tainted the interrogation that took place on
September 23, 1998.
At the suppression hearing, appellant testified that in 1998
Detective Edward Tarney transported him from his place of
incarceration in Hagerstown to Montgomery County. According to
appellant, prior to his ride to police headquarters in Rockville,
Detective Tarney searched him roughly, threw appellant's hat on
the ground, hit him in the groin, spoke to him in a "strict" voice,
looked at me like well, like, ah, like he - like what happened in
`92, he was going - he - I was going to get the same treatment
like I got in `92.
According to appellant, when he complained that his handcuffs were
too tight, Detective Tarney said, "You'll have to talk to us if
you want them loosened." Detective Tarney did, however, relent and
loosen the handcuffs. Appellant further testified that he did not
want to talk to the police at all in 1998 but felt that he was "going
to go through the same thing . . . [I had gone through] in 1992."
Appellant admitted that nothing in the videotape of the 1998
interrogation showed that he was uncomfortable because of the (alleged)
physical abuse by Detective Tarney.
Dr. Neal Blumberg, Director of Forensic Evaluation at Spring Grove
Hospital Center, testified at the suppression hearing that
appellant had been diagnosed with continuous schizophrenia of the
paranoid type since approximately 1994. He described the condition
[A] major mental illness characterized by a deterioration in the
individual's level of functioning usually sometime in the late
teens or early adult years . . . the individual becomes more
withdrawn, begins to develop some odd thinking, odd behavior.
It eventually progresses to the point where they have active
psychotic symptoms, such as delusions or hallucinations or
disorganized or confused thinking. This is a biological illness
that affects brain functioning. . . .
The course of the illness can vary somewhat, but for the most part,
once you have entered the active phase, unless there's some
intervention, you're going to have abnormalities in the thinking
process, in the thought content, in the different types of
emotional responses that can be generated.
He further testified that appellant's condition was not easily
differentiated from two other psychiatric illnesses - schizo-affective
disorder and major depression with psychotic features, especially
those involving persecutory delusions.
Blumberg viewed videotapes of both the 1992 and 1998 police
interrogations, then met with appellant on April 16, 1999, and
heard appellant's description of how Detective Tarney acted.
Blumberg concluded that being put in the same interrogation room
as the one police had used in 1992 would "have the impact, in my
opinion, of reminding him of what he went through." In a patient
with post-traumatic stress disorder, this would generate "a
reaction of fearfulness, of heightened anxiety, flashbacks,
nightmares of the traumatic experience." While Blumberg
acknowledged that post-traumatic stress disorder was not
appellant's diagnosis, he believed nevertheless that the police
actions "all appear to have the impact of reminding him what he
went through, of trying to re-induce the state of helplessness, of
fearfulness, that he had been going through at the time of the `92
Given the existence of police conduct "geared to remind him of
what he went through and to hopefully have an influence for him to
talk with them," Blumberg concluded that appellant's decision to
say anything at all to police was involuntary. He conceded that it
was apparent from the videotape that appellant understood the
Miranda warnings but opined that comprehension of the warnings and
the mental state required for a voluntary decision to waive
Miranda rights were "two separate issues."
Despite appellant's testimony and that of Dr. Blumberg, the trial
judge rejected appellant's contention that the 1998 statement was
involuntary. Judge Weinstein said:
With respect to the motion to exclude the tape of `98, I have
watched the tape. I observed Mr. Clark during the playing of the
tape. I will state for the record that factually that [sic] is
absolutely nothing that I could see in that videotape that would
indicate to me as the trier of fact that there is anything that Mr.
Clark did in that `98 tape that was influenced by his `92
Everything he did was voluntary. He was given his Miranda warnings.
He knew of his right to counsel. He did not ask for a lawyer. He
specifically said to the detectives, "I will talk to you. I don't
want a lawyer."
During the interrogation, he was selective in answering the
questions. He was quite cognizant of the questions that were asked
of him. He answered only those questions that he wanted to answer.
I can find nothing in that tape or anything that has been
presented to me today that would indicate that would [sic] he did
there was other than voluntary.
In reviewing the denial of appellant's motion, we extend great
deference to the suppression court's fact-finding, particularly
the lower court's ability to determine the credibility of the
witnesses and to weigh and determine first-level facts. Perkins v.
83 Md. App. 341, 346 (1990). When
conflicting evidence is presented, we accept the facts as found by
the suppression court, unless clearly erroneous, and we review the
evidence in the light most favorable to the prevailing party.
Riddick v. State, 319 Md. 180, 183 (1990). After giving due regard
to the suppression court's findings of fact, we then make our own
independent appraisal by reviewing the law and applying it to the
facts of the case. McMillian v. State, 325 Md. 272, 281-82 (1992).
We have reviewed both the transcript of the suppression hearing
and the videotape of the 1998 interrogation. See Walker v. State,
125 Md. App. 48, 54-55 (1999) (discussing use of videotape by this
Court). Based on that review, we find that, while appellant's
behavior and demeanor on the videotape were at times somewhat
unusual, there is no indication of fearfulness or anxiety.
Significantly, appellant's demeanor did not change when he was
asked if he knew where he was and whether he remembered the room
he was in. He answered calmly that he did not remember the room
but remembered one that looked like it, but it was bigger and had
the mirror and door in different places. Nor did his demeanor
change when he was asked whether he remembered Detective Tarney.
He replied, "I remember you very well. I remember someone else."
The following colloquy then took place:
Q: We got rid of him.
A: He retired. It was in the paper.
Q: Well I don't think he treated you very well.
A: Well I don't think so either.
Q: What do you think of him?
A: I forgive him. . . . I forgive you too. Just doing your job.
As Judge Weinstein pointed out, during interrogation, appellant
elected to answer some questions, but refused to answer others,
referring to advice previously received from his lawyer. We agree
with the suppression court characterization of his demeanor during
interrogation as "awfully calm" and see nothing in the videotape
to contradict defense counsel's admission at the suppression
hearing that appellant's intelligence was above average. Dr.
Blumberg himself acknowledged that at several points on the 1998
videotape appellant indicated a belief that he could choose
whether to answer questions, relying on legal advice as a ground
for refusing to answer certain questions, telling police that if
they asked a stupid question they would get a stupid answer, and
by saying that he was trying to help out by answering questions
even though he did not have to.
Given these circumstances, we hold that the suppression court did
not err when it found that appellant's statement was voluntary.
B. Request for Counsel
As an alternative ground for suppressing the September 1998
statement, appellant contends that, because he asked for counsel
in 1992 during police questioning, the police were not allowed to
resume questioning in 1998, because: (1) he never reinitiated
further communication with the police and (2) during the
reinterrogation counsel was not present. In support of this
contention, appellant relies on Edwards v. Arizona, 451 U.S. 477
(1981), and its progeny. The Supreme Court held in Edwards that
once a suspect invokes his Miranda right to counsel, all
interrogation must stop unless the defendant initiates further
communication; if the police, rather than the suspect, initiate
further communication, any waiver of the right to counsel is
invalid. Id. at 484-85.
In Edwards, the suspect was read his Miranda rights but, after
briefly speaking with the police, asked for an attorney. Id. at
478-79. Police questioning then temporarily ceased. The next day
the suspect was reinterrogated by different police officers after
he was again advised of his Miranda rights. Id. at 479. The
defendant waived his Miranda rights and then gave the police an
incriminating statement. Id. The statement was admitted at trial,
and ultimately the Arizona Supreme Court affirmed Edwards's
conviction. The United States Supreme Court reversed, holding that
the use of defendant's confession against him at trial violated
his right, under the Fifth and Fourteenth Amendments, to have
counsel present during custodial interrogation. Id. at 487.
Approximately seven years after Edwards, the Supreme Court decided
Arizona v. Roberson, 486 U.S. 675 (1988). In that case, the
defendant (Roberson) was arrested at the scene of a burglary on
April 16, 1985. After being advised of his Miranda rights,
Roberson told the police that he wanted a lawyer present before he
answered any questions. Id. at 678. Questioning then ceased. Id.
Three days later, when Roberson was still in jail, a different
police officer interrogated him about a different burglary. Id.
That officer, unaware that the defendant had previously invoked
his right to counsel, questioned Roberson after the latter had
been advised of, and waived, his Miranda rights. Id. The officer
then obtained an incriminating statement from Roberson about a
burglary that occurred one day prior to the burglary for which he
was arrested initially. In Roberson, the Court ruled that the
Edwards prohibition against reinterrogation applied even if the
reinterrogation was unrelated to the crime that was the focus of
the original questioning, and even if the officer who conducts the
reinterrogation was unaware that the suspect had previously
requested counsel. Id. at 680. The Court emphasized:
T[o] a suspect who has indicated his inability to cope with the
pressures of custodial interrogation by requesting counsel, any
further interrogation without counsel having been provided will
surely exacerbate whatever compulsion to speak the suspect may be
feeling. . . . Especially in a case such as this, in which a
period of three days elapsed between the unsatisfied request for
counsel and the interrogation about a second offense, there is a
serious risk that the mere repetition of the Miranda warnings
would not overcome the presumption of coercion that is created by
prolonged police custody. Id. at 686.
In Minnick v. Mississippi, 498 U.S. 146 (1990), the Court expanded
the Edwards rule still further. Robert Minnick escaped from a
Mississippi prison and was apprehended in California. Id. at 148.
One day after his arrest, on Friday, August 22, 1986, two FBI
agents interviewed Minnick after first giving him his Miranda
warnings. Id. Minnick refused to sign a waiver form and told the
agents that he would not answer "very many" questions. Id. Minnick
proceeded to recount an incomplete and somewhat self-serving story
about his participation in two murders that occurred on the day
following his prison escape. Id. Minnick then invoked his right to
counsel by telling the FBI agents to "come back Monday when I have
a lawyer." After the FBI interview, Minnick spoke with a court-appointed
lawyer, but subsequently, on Monday, August 25, 1986, he was
reinterrogated by a deputy sheriff from Mississippi, without
counsel being present. Id. at 149. Minnick was once again given
his Miranda warnings, whereupon he gave the deputy sheriff a more
detailed account of the murders. Id. At Minnick's trial, the
statement he gave to the deputy sheriff was introduced into
evidence; Minnick was later convicted of the murders and sentenced
to death. Id. at 149. On appeal, Minnick argued that the statement
he gave to the deputy sheriff should have been excluded based on
Edwards. Id. at 149-50. The Supreme Court agreed, even though
Minnick had spoken with counsel prior to giving his statement to
the deputy sheriff. Id. at 154. The Court, citing Michigan v.
Harvey, 494 U.S. 344, 350 (1990), said that the rule in Edwards is
"designed to prevent police from badgering a defendant into
waiving his previously asserted Miranda rights." Id. at 150-51.
The Court went on to say that the "rule ensures that any statement
made in subsequent interrogation is not the result of coercive
pressures. Edwards conserves judicial resources which would
otherwise be expended in making difficult determinations of
voluntariness, and implements the protections of Miranda . . . ."
Id. In Minnick, the Court interpreted Edwards (and later cases) "to
bar police-initiated interrogation unless the accused has counsel
with him at the time of questioning." Id. at 153.
Since Minnick, there has been considerable discussion and
disagreement among legal scholars as to whether there are, or at
least should be, any exceptions to the seemingly "bright-line"
Edwards rule. See, e.g., Eugene Shapiro Thinking the Unthinkable,
Recasting the Presumption of Edwards v. Arizona, 53 Okla. L. Rev.
11 (2000); Laurie Magid, Questioning the Question-Proof Inmate:
Defining Miranda Custody for Incarcerated Suspects, 58 Ohio St.
L.J. 883, 932 (1997); Marcy Strauss, Reinterrogation, 22 Hastings
Const. L.Q. 359, 386-92 (1995); Elizabeth E. Levy, Note, Non-Continuous
Custody and the Miranda-Edwards Rule: Break in Custody Severs
Safeguards, 20 New Eng. J. on Crim. & Civ. Confinement 539, 556
(1994); Jeffrey Richardson, It's Not Easy Being Green: The Scope
of the Fifth Amendment Right to Counsel, 31 Am. Com. L. Rev. 145
(1993). Among the issues that have arisen post Edwards is whether
the rights protected by Edwards are "time tethered" or, put
another way, whether, unless counsel is present, a suspect who has
invoked his rights to counsel is forever protected from police-initiated
questioning. These last-mentioned issues were presented when the
Supreme Court heard oral argument in United States v. Green, 592
A.2d 985 (D.C. App. 1991), cert. granted,
504 U.S. 908 (1992),
507 U.S. 545 (1993), vacating order
granting cert. Arguments heard, 52 Crim. L. Rev. (BNA) 3096-97
(Nov. 30, 1992).
Green involved the propriety of police-initiated reinterrogation
that took place in a juvenile facility some five months after the
suspect had invoked his right to counsel. 592 A.2d at 986. The
suspect (Lowell Green) confessed to murder during the
reinterrogation. Although the suspect was advised of and waived
his Miranda rights prior to reinterrogation at the juvenile
facility, the District of Columbia Court of Appeals affirmed the
trial judge's suppression of the defendant's confession based on
the Edwards rule. Despite granting certiorari in Green, the
Supreme Court never decided the case because Green was murdered
about four months after oral argument. See Richardson, 31 Am. Crim.
L. Rev. at 145-46.
Green had invoked his right to counsel regarding the crime of
possession with intent to distribute a controlled dangerous
substance. 592 A.2d at 985. Prior to the reinterrogation that
resulted in his confession to the crimes of robbery and murder,
Green pled guilty to a reduced charge of "attempted possession
with the intent to distribute cocaine." Id. at 986. When the
police reinterrogated Green, he had not yet been sentenced for the
drug offense. Id. The question before the Court in Green was
whether law enforcement personnel should be allowed to re-initiate
interrogation with a suspect who had invoked his right to counsel
five months earlier in connection with an unrelated offense where
the suspect had pled guilty to the unrelated offense prior to
At oral argument in Green, a number of justices asked questions
that indicated their concern about the duration of Green's
question-proof status after he invoked his right to counsel. See
Magid, 58 Ohio St. L.J. at 890-91.
[J]ustice White asked the government whether it would matter if
the defendant had been questioned just a day after his invocation.
Justice O'Connor also asked questions about the timing of
questioning and tried to determine whether it mattered if the
questioning occurred after "three months," "two months," "one
month," or "two days." She also asked about the questioning of a
defendant serving a life sentence. Finally, she asked whether
sentencing should be an event that ends the question-proof status
by ending the Edwards presumption of non-waivability of the right
to counsel. The government virtually conceded that Green had been
in continuous custody and the Court did not expressly question the
litigants about whether continuous incarceration is per se
continuous custody for Miranda purposes. Id. at 890 n.17 (citations
It has been suggested that the Court granted certiorari in Green
because of the "absurd" result created by the unlimited duration
of a suspect's question-proof status. See George E. Dix, Promises,
Confessions, and Wayne LaFave's Bright Line Rule Analysis, U. Ill.
L. Rev. 207, 231 n.114 (1993). Others, however, contend that
regardless of why certiorari was granted, the Supreme Court should,
in the next case involving facts similar to those in Green, hold
that neither "the passage of time nor the entering of a guilty
plea should end the Edwards presumption arising from a request for
counsel." See, e.g., Richardson, 31 Am. Crim. L. Rev. 145, 158.
In McNeil v. Wisconsin, 501 U.S. 171, 177 (1991), Justice Scalia,
for the Court, indicated, in dicta, that a break in custody would
create an exception to the Edwards rule that once a suspect asked
for counsel police-initiated reinterrogation could not be
commenced without counsel being present.
Federal and state courts have unanimously accepted the view that
the Edwards prohibition against reinterrogation is inapplicable if,
after a suspect asks for counsel, there is a break in custody
before reinterrogation commences. See U.S. v. Harris, 221 F.3d
1048, 1052-53 (8th Cir. 2000); Kyger v. Carlton, 146 F.3d 374,
380-81 (6th Cir. 1998); United States v. Barlow, 41 F.3d 935,
945-46 (5th Cir. 1994); United States v. Hines, 963 F.2d 255, 257
(9th Cir. 1992); Dunkins v. Thigpen, 854 F.2d 394, 397 (11th Cir.
1988); McFadden v. Garraghty, 820 F.2d 654, 661 (4th Cir. 1987);
United States ex rel. Espinoza v. Fairman, 813 F.2d 117, 125-26
(7th Cir. 1987) (dictum); United States v. Skinner, 667 F.2d 1306,
1309 (9th Cir. 1982); Commonwealth v. Galford, 597 N.E.2d, 410,
414 (Mass. 1992); Willie v. State,
585 So. 2d 660, 666 (Miss. 1991) (dictum);
People v. Trujillo, 773 P.2d 1086, 1092 (Colo. 1989); In re Bonnie
H., 65 Cal. Rptr. 2d 513, 526 (Cal. Ct. App. 1997); Commonwealth
688 A.2d 710, 712-13 (Pa. Super. Ct.
1997); Keys v. State,
606 So. 2d 669, 672 (Fla. Dist. Ct.
App. 1992); State v. Bymes,
375 S.E.2d 41, 41-42 (Ga. 1989);
State v. Kyger,
787 S.W.2d 13, 25 (Tenn. Crim. App.
1989); In re Wells, 532 So. 2d 191, 196 (La. Ct. App. 1988).
Inasmuch as there is a universally recognized "break-in-custody"
exception to Edwards, the question becomes whether there has been
a "break in custody" when a suspect invokes his right to counsel,
but later pleads guilty, is sentenced, and is serving that
sentence in prison prior to reinterrogation by the police. The
answer to that question is subject to strongly differing views as
seen by the majority and dissenting opinion in Kochutin v. Alaska,
813 P.2d 298 (Alaska Ct. App. 1991).
Jacob Kochutin was suspected of sexually abusing and murdering a
seven-year-old boy (referred to as T.T.) who disappeared in June
of 1984. Id. at 300. While Kochutin was in jail, on unrelated
charges, T.T.'s body was discovered (in July 1985) in a trunk in
Kochutin's uncle's home. Id. A state trooper wanted to question
Kochutin about T.T.'s murder, but in August 1985, Kochutin's
counsel told the state trooper that his client did not want to
talk to the police without counsel being present. Id. One year
later, while Kochutin was still incarcerated for an unrelated
offense, the police conducted a series of interviews with him. The
interviews took place between August 13 and August 20, 1986. On
August 13, Kochutin was advised of, and waived, his Miranda rights.
Id. at 301. In the August 1986 police interviews, Kochutin
admitted that he sexually molested and murdered T.T. Id. At trial,
Kochutin's statements were admitted into evidence, but on appeal,
Alaska's intermediate appellate court reversed. Id. at 308. The
Kochutin majority, basing its opinion on the belief that appellant
had been in continuous custody between the time he invoked his
right to counsel and the date of reinterrogation, said:
The state further argues, however, that even if Edwards is not
narrowly read, it remains inapplicable to Kochutin's case.
According to the state, Edwards applies only to suspects who
remain in continuous custody after making an initial request to
consult with counsel. The State points out that in Kochutin's
case, the challenged interviews occurred a full year after Morse [Kochutin's
attorney] had asserted Kochutin's right to remain silent; although
Kochutin was technically still in custody, he was apparently
confined as a sentenced prisoner serving a term for unrelated
offenses. Kochutin was not in detention for T.T.'s homicide, and
the district attorney took the precaution of ascertaining that he
had no other cases pending. The state contends that Kochutin's
status as a sentenced prisoner and the amount of time that elapsed
after he invoked his right to remain silent removed his case from
the Edwards rule.
Although the dissent in this case finds the state's argument
persuasive, we do not. The United States Supreme Court made it
clear in Minnick that Edwards adopted a "bright-line" rule that
can be easily understood and predictably applied. Exceptions to
the Edwards rule should not be carved out lightly. The exception
to Edwards that the state proposes in this case is simply an
argument that Edwards ought not to apply to Kochutin's situation,
even though Kochutin undeniably invoked his Miranda rights and was
thereafter subjected to police-initiated custodial reinterrogation
without counsel present. This type of fact-specific analysis is
precisely the type of uncertain case-by-case adjudication that the
bright-line rule in Edwards is meant to avoid.
Moreover, the state's proposed Edwards exception presupposes that
the Edwards rule applies only to suspects who remain in continuous
custody after invoking their Miranda rights. The "continuous
custody" requirement that the state relies on appears to have
first been articulated by the court in [U.S. ex. rel. Espinoza v.
]Fairman, [813 F.2d 117,] 124-27 [(7th Cir. 1987)]. Although, as
the dissent in this case notes, this requirement seems to have
been generally accepted by federal appellate courts, it has never
been definitively ruled on by the United States Supreme Court, and
was not expressly adopted in Edwards.[
In any event, Kochutin actually did remain in continuous custody
between August of 1985, when he first invoked his Miranda rights,
and August of 1986, when Stevenson contacted him at the Sixth
Avenue jail without notifying Morse. Not only did Kochutin remain
continuously in custody, but the subject of the police-initiated
questioning in Morse's absence was precisely that to which
Kochutin originally invoked his Miranda rights.
We find nothing in Edwards or in subsequent decisions of the
Supreme Court to indicate that Edwards should be relaxed by the
mere passage of time. Nor are we persuaded that Kochutin's status
as a sentenced prisoner removes his case from coverage of the
Edwards rule. The fact that Kochutin was not being detained in
connection with T.T.'s homicide seems immaterial, since the United
States Supreme Court has made it clear that Edwards applies even
when police seek to question a suspect about charges other than
those for which the suspect was arrested and as to which the
suspect first invoked the right to remain silent.
As evidenced by the fact that the troopers deemed it necessary to
advise Kochutin of his Miranda rights, the interviews that
occurred at the Sixth Avenue jail and at trooper headquarters in
August of 1986 plainly amounted to custodial interrogation. Under
the circumstances, it appears that the Edwards rule was applicable.
Under Edwards, the police-initiated interviews were impermissible
because they occurred without notice to Morse and without Morse's
presence. As a result, Kothutin's apparent willingness to waive
his Miranda rights is inconsequential. Id. at 304-05 (footnote
omitted) (some citations omitted).
In a dissenting opinion, Chief Judge Bryner disagreed:
In recognition of Miranda's underlying purposes, however, the
Supreme Court has made it plain that Miranda ceases to apply when
custody occurs in the absence of inherent coercion. As the Court
concluded in [Illinois v. ]Perkins, [496 U.S. 292, 296 (1990)]: "We
reject the argument that Miranda warnings are required whenever a
suspect is in custody in a technical sense and converses with
someone who happens to be a government agent." Id.
When a person is confined in custody solely as a sentenced
prisoner, with no charges pending, the issue of guilt resolved by
a final verdict, and the terms and conditions of future
confinement clearly defined in a written judgment that is a matter
of public record, the anxiety and uncertainty that support
Miranda's finding of inherent coercion simply cease to exist. When
custody is not related to any pending or unresolved matter, it
seems to me that there is little cause for concern that a police
officer will "appear to control the suspect's fate," [i]d. at
least in the absence of a showing that the officer's conduct
somehow creates an atmosphere of custody going beyond that to
which the suspect is accustomed in his normal setting. See, e.g.,
Skinner, 667 F.2d at 1308-09.
If it is safe to say under existing case law that a sentenced
prisoner cannot automatically be deemed to be in continuing
Miranda custody, then it is equally safe to say that a sentenced
prisoner who invokes the right to counsel upon being interrogated
under circumstances amounting to Miranda custody and is thereafter
returned to normal sentenced-prisoner status should not
automatically be deemed to be in continuous custody under Edwards.
Once returned to the ordinary routine of other sentenced prisoners
-without any vestige of the inherently coercive circumstances
incidental to custodial interrogation - the prisoner should be
treated, for Edwards purposes, in the same manner as any person
who has been arrested, questioned in custody, and released.
Kochutin was serving a sentence for unrelated crimes when T.T.'s
body was discovered. As an obvious focus of suspicion, he was
twice transferred to more secure and restrictive confinement.
Kochutin's changed status could well give rise to the type of
anxiety and uncertainty contemplated by Miranda, and consequently,
any attempt to question Kochutin while he was in administrative
segregation would have amounted to custodial interrogation. For
this reason, when Kochutin consulted with his attorney and invoked
his Miranda rights through him, Kochutin was certainly in Miranda
From the limited record in this case, it is uncertain precisely
when Kochutin's Miranda custody ended. It is nonetheless clear
that at some point during the fall of 1985 - by December at the
latest - Kochutin was released from administrative segregation and
returned to regular, sentenced-prisoner status at the Hiland
Mountain Correctional Center. From that point, so long as Kochutin
remained incarcerated solely as a finally convicted, sentenced
prisoner, he was no longer in Miranda custody. In the absence of
evidence suggesting that Kochutin's return to sentenced-prisoner
status was a ruse to allow further police contact, Edwards no
longer precluded police-initiated contact in the absence of
Admittedly, Edwards was meant to adopt a "bright-line" rule that
could be applied consistently and predictably; the case could thus
conceivably apply to Kochutin's situation, even though neither
logic nor common sense seem[s] to compel that result. In my view,
however, Edwards' bright-line is not a laser, burning inexorably
through form and substance into infinity. When the factual
circumstances of a case fall into a predictable, potentially
recurring pattern to which the underlying policy of Miranda and
Edwards cease to apply, then so too does the bright-line of
Edwards cease to shine. Id. at 309-11 (footnotes omitted).
Reasoning similar to that utilized by Chief Judge Bryner's dissent
was recently applied in U.S. v. Arrington, 215 F.3d 855 (8th Cir.
2000). In Arrington, the defendant was charged by Minnesota
authorities with felony firearm possession and fleeing police. Id.
at 856. At the police station, the defendant, after being advised
of his Miranda rights, requested counsel, and counsel was provided.
Id. Thereafter, the defendant pled guilty in state court to the
charge of fleeing the police, and the firearm charge was dropped.
Id. The defendant was sentenced and began serving his state
sentence. Id. Shortly thereafter, however, the defendant was
arrested (while in jail) by an Alcohol, Tobacco and Firearms (ATF)
agent on a federal felon in possession of firearm charge. Id. The
defendant was again advised of his Miranda rights, which he waived.
Id. Arrington then gave an incriminating statement to an ATF agent.
Id. He was subsequently convicted by a jury on the federal firearm
On appeal, Arrington contended that the statement he gave to an
ATF agent should have been suppressed based on Edwards and Arizona
v. Robinson. Id. The Eighth Circuit Court of Appeals summarily
rejected Arrington's contention as follows:
We agree that Edwards and Roberson mandate that "after a person in
custody has expressed his desire to deal with the police only
through counsel, he `is not subject to further interrogation by
the authorities until counsel has been made available to him,
unless the accused himself initiates further communication,
exchanges, or conversations with the police,'" Roberson, 486 U.S.
at 682, and that this rule applies "whether a contemplated
reinterrogation concerns the same or a different offense, or
whether the same or different law enforcement authorities are
involved in the second investigation," id. at 687. Although the
Fifth Amendment right to counsel continues throughout the duration
of police custody, see Butler v. Aiken, 846 F.2d 255, 258 (4th
Cir. 1988), we find no support in Edwards or Roberson for
Arrington's contention that the right also "continues ad infinitum,"
and certainly not where, as here, the accused has entered a guilty
plea and has begun serving his sentence. United States v. Hall,
905 F.2d 959, 963 (6th Cir. 1990) (Edwards and Roberson do not
give unlimited blanket protection to defendant invoking Fifth
Amendment right to counsel). When Arrington was arrested on state
charges, he validly invoked his Fifth Amendment right to counsel
and that right was scrupulously honored throughout the state
proceedings. After pleading guilty to the state flight charge,
Arrington was transferred from police custody to correctional
custody to serve his sentence. At that point, Arrington was no
longer "`in custody as that term has been used in the context of
Edwards and Roberson," id. at 962, and Edwards and Roberson were
no longer applicable as a basis for suppressing Arrington's
statement to the ATF agent, see McNeil v. Wisconsin, 501 U.S. 171,
177, 115 L. Ed. 2d 158,
111 S. Ct. 2204 (1991) (break in
custody makes Edwards inapplicable); Holman v. Kemna, 212 F.3d
413, 2000 U.S. App. LEXIS 8921, No. 99-1552, 2000 WL 556878, at *4
(8th Cir. May 5, 2000) (same). Thus, the district court properly
denied Arrington's motion to suppress his statement.[
] Id. at 856-57.
Although written prior to Arrington, the following comments
support its rationale:
It is hardly surprising that the trend is clearly towards finding
that not every minute of incarceration also constitutes custody
for Miranda purposes. The cases made sense in the context of the
Court's broader statements about the meaning of custody. "Miranda's
requirement of warnings and its establishment of a right to
counsel as an adjunct to the fifth amendment's guarantee against
compulsory self-incrimination were predicated on the inherently
coercive nature of confinement in police custody following an
arrest." There is little in the Court's cases to suggest that the
great potential for coercion existing shortly after arrest, or
arguably at any time pre-trial, also continues to exist for every
moment of all the subsequent years of the defendant's
incarceration. Even in the early pre-trial, post-arrest stages,
the inherently compelling nature of custody is a fiction in many
cases. There is no good basis for extending this fiction to
insulate some suspects from questioning for years or even their
entire life based on a single request, long ago, for counsel.
The cases finding that an inmate is not necessarily in Miranda
custody even at the moment when he is interrogated in prison
demonstrate that an inmate is surely not in Miranda custody during
the long period of incarceration, before any interrogation, when
he is merely a prisoner serving his sentence.
There is no question that Miranda custody and, thus, any existing
question-proof status, ends when an inmate leaves the prison
facility on bail or at the completion of his sentence. Release
into the general prison population as a sentenced prisoner can
have the same effect, ending both Miranda custody and the question-proof
status conferred by an earlier invocation of the right to counsel.
While release into the general population as a sentenced prisoner
is obviously quite different than release to one's home, it is
still a significant event for Miranda purposes. Release into the
general prison population places an inmate in a very different
atmosphere than the one he endured after arrest as a pre-trial
detainee, worried and uncertain about his fate with regard to the
A sentenced prisoner, settled into the routine of his new life in
the general prison population, is incarcerated but may well be out
of Miranda custody. Of course, he may and probably should be
deemed to have returned to a custodial state once he is approached
for questioning. But the extended period of time during which the
inmate was incarcerated but was not in Miranda custody is a break
in custody that has the effect, like any other break in custody,
of allowing his question-proof status to end. Once the bar against
approaching him ends, the incarcerated suspect, like a suspect who
is out on bail, can be taken back into custody, informed of his
Miranda rights again, and questioned about a different crime.
When a defendant leaves the station house, such as on bail, and
resumes the normal routines of life, the Court has recognized that
he no longer requires the protection of the Edwards prophylactic
rule. Such a defendant is entitled to the usual Miranda
protections, but not the additional prophylactic protection of
being rendered question-proof. Likewise, the inmate who has
assumed his new routine in prison no longer needs the extra
protection of Edwards. The restraints necessarily imposed by
incarceration become familiar matters to inmates and do not create
the coercive circumstances in which it must be presumed that one's
free will is overborne. Magid, Laurie, Questioning the Question-Proof
Inmate Defining Miranda Custody for Incarcerated Suspects, 58 Ohio
St. L.J. 883, 947-49 (1997) (footnotes omitted) (emphasis added).
Clark was arrested for the Houghteling murder and was never
released on bond after his request for counsel on November 6,
1992. He takes the position that the preclusive effect of his
invocation of his right to counsel endures indefinitely unless he
reinitiates communication with the police. According to appellant,
the time gap between the request for counsel and reinterrogation
makes no difference, nor does the fact that, after counsel was
requested, he pled guilty to the Houghteling murder and was
incarcerated for over five years for that crime. Although not
cited by appellant, the majority opinion in Green supports
appellant's interpretation of Edwards.
The practical effect of adopting the rule suggested by appellant
would produce absurd results. It would create a class of prisoners
who are forever question proof - even though law enforcement
officers would often have no way of knowing that the prisoner
enjoys question-proof status.
Edwards, Roberson, and Minnick were all cases in which
reinterrogation took place within three days of the prisoner's
invocations of their right to counsel. The evil sought to be
avoided was police badgering. But with a gap of more than five
years between police interrogation sessions, it is impossible to
say that the Montgomery County police "badgered" Clark into
waiving his right to counsel. Application of the Edwards rule to
cases like the one at hand would not help achieve Edwards's goal
of preventing police badgering, nor would it accomplish any other
discernable public good.
Common sense dictates that, if a rule is devised to prevent
badgering a suspect into giving up his right to counsel, and
because of an immense time gap, no badgering even arguably
occurred, then blind obedience to the rule is not required. Put
another way, when, as here, "the factual circumstances of a case
fall into a predictable, potentially recurring pattern to which
the underlying policy of Miranda and Edwards cease to apply, then
so too does the bright-line of Edwards cease to shine." Kochutin,
813 P.2d at 310 (Bryner, J., dissenting). For the foregoing
reasons, as well as those set forth in Arrington,
the portion of the law review article by Magid, quoted supra, and
Chief Judge Bryner's dissent in Kochutin, we hold that: (1) a
break in custody is an exception to the rule set forth in Edwards;
(2) for Miranda purposes, the five plus years appellant spent in
prison after invoking his right to counsel constituted a break in
custody; (3) the trial court did not violate the Edwards rule in
denying appellant's motion to suppress his September 1998
statement to police.
Appellant next argues that the trial court erred in denying his
motion to suppress an eyeglass case and its contents because those
items were beyond the scope of the warrant issued to search
appellant's truck and because the police failed to list the
eyeglass case in the inventory filed after the search.
The police obtained a warrant in November 1992 to search
appellant's pickup truck and to seize fifteen items:
(1) hairs[,] (2) fibers[,] (3) blood[,] (4) keys[,] (5) sheet[,]
(6) VHS tapes[,] (7) National Cathedral H.S. ring[,] (8) black
leather valise[,] (9) audio cassette tapes[,] (10) gold ladies
watch[,] (11) diamond ring[,] (13) [sic] silver choker necklace[,]
(10) [sic] female clothing[,] (11) Clark's personal papers[,] (12)
Houghteling's personal papers[,] (13) glass unicorn[,] (14)
mattress pad[,] (15) sleeping bags.
When searching the truck, the police found a dark eyeglass case
with a hinge. They opened the case and found that it contained
sandy soil. The police seized the eyeglass case and its contents
but, through inadvertence, did not list it in their inventory
filed later. A motion to suppress the eyeglass case and its
contents was made by appellant prior to trial, but the motion was
At trial, neither the eyeglass case nor its contents was admitted
into evidence. FBI Trace Evidence Examiner Bruce Hall did testify
that the "likely source" of the soil in the eyeglass case was the
disturbed area in the Clark plot in the Massachusetts cemetery.
The issue as to whether the trial judge should have granted the
suppression motion regarding the eyeglass case is immaterial,
inasmuch as neither the case nor the soil was admitted into
evidence. And, appellant does not argue that the testimony of
Agent Hall should not have been admitted.
If that argument had been made, we would have ruled that it was
waived because Agent Hall's opinion concerning the soil came in
Appellant argues that the trial court erred in admitting into
evidence the hypnotically enhanced testimony of Carl Dorr. A key
element of appellant's defense was the contention that he would
not have had enough time to kill Michelle, clean up the room,
remove the child's body, and still get to work by 2:46 p.m., which
was the time he started work, according to his employer's records.
From appellant's perspective, the later in the day that Carl Dorr
had seen his daughter, the better it would be for the defense -
assuming, of course, that the jury believed that appellant went to
work at 2:46 p.m. on May 31st.
On August 1, 1996, Carl Dorr was hypnotized and questioned by the
Under hypnosis, Mr. Dorr was asked, among other things, when he
last saw Michelle alive.
Prior to Mr. Dorr's taking the stand, a hearing was held on
appellant's motion to exclude the hypnotically enhanced testimony.
At the hearing, appellant's counsel proffered that prior to being
hypnotized, Mr. Dorr had never given a time estimate (regarding
the last time he saw Michelle) that was earlier than 1 p.m.; but
under hypnosis, Mr. Dorr said his last sighting could have been as
early as 12:30 p.m. The prosecutor proffered that during hypnosis
Mr. Dorr also estimated, "It could have been 1:30. It could have
The trial judge accepted the proffer that, prior to hypnosis, the
earliest Mr. Dorr said that he last saw Michelle was one o'clock,
and after hypnosis, he said the earliest that he could have last
seen her was 12:30 p.m. The court nevertheless ruled that Mr. Dorr
could testify inasmuch as his pre- and post-hypnotic testimony
were "sufficiently close" estimates. The court found it important
that at no time prior to hypnosis - or afterward - had Mr. Dorr
identified a particular time when he last saw his daughter.
Instead, both before and after hypnosis, he identified a range of
times, and both pre- and post-hypnotic statements included times
generally within that range.
Hypnotically enhanced testimony is usually inadmissible. An
exception exists, however, when a witness testifies in accordance
with statements that can be demonstrated to have been made prior
to hypnosis. State v. Collins, 296 Md. 670, 702 (1983). The issue
here is whether Mr. Dorr's testimony meets the test set forth in
Collins. We agree with the trial judge that it does. Both before
and after hypnosis, Mr. Dorr was very uncertain about the time
that he last saw his daughter. That great uncertainty carried over
into Mr. Dorr's trial testimony when he testified as follows:
Q [PROSECUTOR]: Now, up until that point of going to talk to Jeff
[appellant's brother] and saying essentially, "Where is Michelle?
Can Michelle come outside," do you have any absolutely specific
recollection of the last time it was that you saw your daughter?
A: No, I do not.
Q: Could it have been 2 o'clock?
MR. SHEFFERMAN: Objection.
THE COURT: Sustained.
Q: What is the earliest in the day that you think it may have been
and what is the latest? In other words, I am asking for a range of
when you last saw your daughter.
A: May [sic] 12:30 to 1:00 -
MR. SHEFFERMAN: Objection.
THE COURT: Overruled.
THE WITNESS: - to maybe 2 o'clock or 3 o'clock.
The common denominator between Mr. Dorr's statements before he was
hypnotized and after he underwent hypnosis was that he was
uncertain as to when he had last seen his daughter. The reason for
excluding post-hypnosis testimony is the fear that something may
have been intentionally or unintentionally said during hypnosis
that might change the witness's memory. While it is true that
after hypnosis, his statement changed from "1:00 p.m." to "12:30
to 1:00," that change was insignificant in light of the fact that
he had always made it clear that he was quite uncertain as to the
time he had last seen his daughter. In sum, we agree with the
trial court that the hypnosis that Mr. Dorr underwent did not
result in any material change in his recollection.
While Mr. Dorr was on the stand, appellant's counsel wanted to ask
him whether, between February and May 1986, he was using alcohol
and marijuana "heavily." Counsel contended that this question was
relevant in considering whether Mr. Dorr was telling the truth
when he denied that in February of 1986 he told Michelle's mother
that he was going to abduct Michelle and that he was not going to
pay child support. Defense counsel also contended that the
question was relevant because it reflected upon Mr. Dorr's ability
to remember. Appellant's counsel admitted at a bench conference
that he did not have any medical expert prepared to testify that
marijuana impaired one's long- or short-term memory but said that
it was "common knowledge" that substances such as alcohol and
marijuana "do affect people's perception and memory." The trial
judge sustained the State's objection to the question whether
appellant had been using marijuana heavily but indicated that he
would allow counsel to ask whether Mr. Dorr had been imbibing
alcohol heavily during the February to May 1986 time period.
While cross-examination about drug use is not automatically
barred, it is for the trial court to balance the probative value
of the inquiry against the potential for unfair prejudice to the
witness. "Otherwise, the inquiry can reduce itself to a discussion
of collateral matters which will obscure the issue and lead to the
fact finder's confusion." Lyba v. State, 321 Md. 564, 570-571,
(1991) (quoting State v. Cox, 298 Md. 173, 178 (1983)). Prior to
ruling that counsel could not inquire about marijuana use, the
trial judge noted the absence of medical evidence proving that the
use of marijuana affected one's memory. He also alluded to the
fact that marijuana use is a crime and might unfairly prejudice Mr.
A witness may be impeached on the basis of alcohol and marijuana
use under some circumstances. But the cases that have allowed such
testimony have done so on the basis that it is generally accepted
that the use of alcohol and many drugs can affect one's ability to
perceive an event, such as a crime or an accident. In Lyba, the
questions concerned the victim's ability to perceive her attacker
at the time of the attack and on another day when she happened to
see him again. 321 Md. at 568. In Matthews v. State,
68 Md. App. 282 (1986), the issue was
whether a witness could testify that, in her opinion, the victim
was under the influence of drugs at the time of the crime. We
stated in Matthews that it was "axiomatic that evidence of a
witness's intoxication at the time of the event about which he is
testifying is admissible for the purpose of impeaching his
credibility." Id. at 289. In Hickey v. Kendall, 111 Md. App. 577,
614-615 (1996), we noted that it would have been helpful for the
jury to have known how much alcohol and/or marijuana a witness had
consumed and when he had consumed it prior to the accident about
which he testified.
In contrast, here the challenge to Mr. Dorr's abilities to observe
and/or his memory related to matters that were quite collateral to
any issue to be decided by the jury. None of the questions focused
on whether Mr. Dorr was impaired or intoxicated on the date he
made the [abduction or child support] statements or on the date of
Michelle's disappearance but, instead, covered a period of four
months - not a discrete period where, if one were not sober,
short-term memory (arguably) might be affected by marijuana use.
The trial court did not err.
Appellant, lastly, contends that the trial court erred in
preventing his counsel from proving that the police were unable to
corroborate Mr. Dorr's account of his activities on the day of
Michelle's disappearance. When Officer Farrell was on the stand,
appellant's counsel brought out the fact that when he interrogated
Carl Dorr he played the role of the "bad cop." Defense counsel
further established that one of the reasons that Officer Farrell
was "being aggressive" toward Mr. Dorr was because Mr. Dorr was "a
potential suspect." Appellant's counsel then asked: "And another
reason that you were being aggressive with him is that from what
you learned from Carl Dorr about what he did that day the police
could not corroborate what . . . ." The prosecutor then
interrupted by objecting before the question was complete. It is
clear, however, that appellant's counsel intended to ask the
officer whether other police officers could corroborate Mr. Dorr's
statement regarding his activities on the day that Michelle
disappeared. The trial judge, at a bench conference, asked
appellant's counsel, inter alia, why the hearsay rule would not
prohibit Officer Farrell from answering that question. Appellant's
trial counsel answered as follows:
Well, because . . . the State has brought out that he was a
suspect, that they were being aggressive. They brought out all
these tactics. The reason that they were suspicious of him was
because they could not corroborate what he did that day.
The question was disallowed. Properly analyzed, the question
called for double hearsay. Officer Farrell was asked, in legal
effect, to tell the jury what out-of-court declarants (unnamed
police officers) had learned from talking with third parties about
Mr. Dorr's activities. The objection was properly sustained.
JUDGMENT AFFIRMED; COSTS TO BE PAID BY APPELLANT.
In the transcript, the victim's name is spelled "Michelle," but in
numerous newspaper articles her name is spelled "Michele." We have
used the spelling adopted by the court reporter.
At trial, the jury was told that the DNA test results showed that
neither Michelle Dorr nor appellant were the sources of the blood
that was tested. This did not necessarily mean, however, that
Michelle had not bled to death there. This latter statement is
true because many of the blood spots in the room did not contain
enough material to perform a DNA test.
Maryland Rules of Professional Conduct 3.8 sets forth the special
responsibilities of a prosecutor. Subsection (d) provides that the
prosecutor in a criminal case shall: (d) make timely disclosure to
the defense of all evidence or information known to the prosecutor
that tends to negate the guilt of the accused or mitigates the
offense . . . . Maryland Rule 3.8(d) (emphasis added). This rule
follows verbatim ABA Model Rule 3.8(d). Explaining ABA Rule
3.8(d), one commentator discussed the prosecutor's duty to
volunteer exculpatory evidence to the grand jury: Whenever the
prosecutor is proceeding ex parte, as in a grand jury hearing, the
ethics rules provides that he should offer the tribunal "all
material facts" whether or not adverse. On the other hand, as a
matter of constitutional law, a court may not dismiss an otherwise
valid indictment on the ground that the government failed to
disclose to the grand jury "substantially exculpatory evidence" in
its possession. Ronald D. Rotunda, Legal Ethics The Lawyer's
Deskbook on Professional Responsibility § 29-2.2 (ABA 2000) (citing
ABA Model Rule of Professional Conduct 3.8(d) (governing ex parte
proceedings, including grand jury proceedings).
Connecticut, Hawaii, and Massachusetts base the prosecutor's duty
to present exculpatory evidence to the grand jury on their state's
common law: State v. Couture, 482 A.2d 300, 315 (Conn. 1984);
State v. Adams, 645 P.2d 308, 311 (Haw. 1982); Commonwealth v.
500 N.E.2d 774, 778 (Mass. 1986).
Seven cases cited by appellant were based on a state statute or
rule: Frink v. State, 597 P.2d 154, 164 (Alaska 1979) (Alaska
Criminal Rule 6(q)); State v. Coconino County Sup. Ct., 678 P.2d
1386 (Ariz. 1984), rev'd on other grounds, Arizona v. Mauro, 481
U.S. 520 (1987) (A.R.S. § 21-412 provides that grand jury may
request exculpatory evidence); Johnson v. Superior Court, 539 P.2d
792, 796 (Cal. 1975) (Cal. Penal Code § 939.7); State v. Nordquist,
309 N.W.2d 109, 118 (N.D. 1981) (statute
and common law); State v. Harwood, 609 P.2d 1312, 1316 (Or. 1980)
(statute and common law); Strehl v. District Court, 558 P.2d 597,
598-99 (Utah 1976) (statute and common law).
In Abbatiello, a judge on the Supreme Court of New York (a trial
court) dismissed the indictment based on New York common law
stating, The court recognizes that the District Attorney is
initially under no obligation to present exculpatory material at
the Grand Jury level. Nor is there any precise formula to
determine whether, and under what circumstances, a prosecutor must
present exculpatory evidence to the Grand Jury. However, if the
exculpatory matter is so important as to materially influence the
Grand Jury's investigation, or its introduction would possibly
cause the Grand Jury to change its findings, then it must be
submitted. Abbatiello, 494 N.Y.S.2d at 627 (citations omitted).
In Joseph Murphy, Maryland Evidence Handbook section 700A (3d ed.
1999), the author states: Prior statements made by the person who
testified at trial continue to be treated as hearsay in Maryland.
Under Md. Rule 5-802.1, however, when the out-of-court declarant
testifies at trial, seven kinds of prior statements are admissible
to prove truth of content: (1) prior inconsistent statements made
under penalty of perjury "at a trial, hearing, or other proceeding
or in a deposition," (2) prior inconsistent statements reduced to
writing and signed by the declarant-witness, (3) prior
inconsistent statements contemporaneously recorded - in
substantially verbatim fashion -stenographically or electronically,
(4) prior consistent statements that rebut claims of improper
motive or fabrication, (5) prior identifications, (6) the victim's
(consistent) "prompt" complaint of sexually assaultive behavior,
and (7) the declarant-witness's "past recollection recorded."
Miranda v. Arizona, 384 U.S. 436, 467-69 (1966).
Although the statement might conceivably be considered
incriminating, it was easily explainable. Michelle had been
missing for over twelve years when the statement was made, and by
that time, most people (including Michelle's parents and the
police) assumed the child had been killed by someone. Moreover,
appellant had just been indicted for her murder. If he had chosen
to answer Mr. Sheasley's question, "Who said she was killed?" he
might well have said: "Michelle's mother, on a national television
program" or "the Montgomery County Grand Jury."
The State's theory was that appellant was backing up, after
removing the body, when he struck the grave marker.
Police dogs who search for persons, cadavers, drugs, and so forth,
are trained to try to find a ball. When, for instance, a dog is
successful in finding a clandestine grave, the dog is rewarded by
being given the ball. A dog who has no interest in finding a ball
is not a good candidate for search training.
Appellant did not challenge Panzer's expertise. Interestingly,
when Michelle's body was found post trial, Panzer alerted to the
spot where she was buried.
As mentioned earlier, appellant contends that "Dan's success
records for detecting evidence of human remains was checkered, at
best." That contention has never been proven. On the one occasion
when Dan and another dog alerted at a hole where no human remains
were immediately observable, police found a pair of sweatpants.
According to Trooper Barrett's trial testimony, although no blood
or human tissue had been yet found, the police lab was checking
the sweatpants to find out if they contained blood, tissue, or
evidence of human decomposition. Those tests were not complete as
of the date she testified.
Frye v. United States,
293 F. 1013 (D.C. Cir. 1923); Reed v.
State, 283 Md. 374 (1978).
Justice Scalia said: In Edwards v. Arizona, we established a
second layer of prophylaxis for the Miranda right to counsel: Once
a suspect asserts the right, not only must the current
interrogation cease, but he may not be approached for further
interrogation "until counsel has been made available to him,"
which means, we have most recently held, that counsel must be
present. If the police do subsequently initiate an encounter in
the absence of counsel (assuming that there has been no break in
custody), the suspect's statements are presumed involuntary and
therefore inadmissible as substantive evidence at trial, even
where the suspect executes a waiver and his statements would be
considered voluntary under traditional standards. (Emphasis added.)
After the original opinion in Kochutin was published, the rule was
adopted by the Kochutin court after it was discovered that there
had been a break in custody due to the fact that Kochutin had been
out of jail between the time he asked for counsel and his
reinterrogation. Kochutin v. Alaska, 875 P.2d 778, 779 (Alaska Ct.
App. 1994). The court vacated its previous judgment, and explained:
The continuous custody requirement has been universally recognized
by federal courts of appeal and appears to be a well-established
feature of the Edwards rule. Kochutin offers no cogent legal or
factual reasons warranting rejection of the requirement in his
case. Given the now undisputed break in custody that occurred in
this case, Kochutin's August 1986 police interviews did not
violate the Edwards rule. Id.
Holman v. Kemna, 212 F.3d 413 (8th Cir. 2000), is in accord with
the Arrington view that there are exceptions to the bright-line
Edwards rule: [D]espite our finding that Holman was subject to
police-initiated custodial interrogation on October 23, after
having invoked his right to counsel, we are still unable to
conclude that the admission of the confession obtained the next
day violated his Fifth and Sixth Amendment rights. Other circuits
have noted that various factors such as a break in custody or a
lapse in time may vitiate the coercive effect of an impermissible
interrogation so that the admission of subsequent statements is
not barred by the Edwards rule. See Hill v. Brigano, 199 F.3d 833,
842 (6th Cir. 1999) (lapse in time), petition for cert. filed (U.S.
Mar. 21, 2000) (No. 99-8773); Unites States v. Gomez, 927 F.2d
1530, 1539 n.8 (11th Cir. 1991) (same); Dunkins v. Thigpen, 854
F.2d 394, 397 (11th Cir. 1988) (break in custody dissolves a
defendant's Edwards claim); McFadden v. Garraghty, 820 F.2d 654,
661 (4th Cir. 1987) (same). We do not believe these circumstances
to be exhaustive and think that other scenarios may also militate
against the finding of an Edwards violation. We believe this is
such a case. Id. at 419.
The reasoning in Arrington was very similar to that used by the
court in United States v. Hall, 905 F.2d 959, 963 (6th Cir. 1990).
Hall, while in state prison, serving a state sentence, was
suspected of making a written threat on two federal officials.
Hall escaped from jail, but was captured; when he was arraigned on
escape charges, Hall invoked his right to counsel. Three months
after requesting counsel, he was questioned by federal agents
about his threats on federal officials. After being advised of his
Miranda rights, he confessed to the federal charge and was
convicted. Id. at 960. The court found his confession was not
barred by Edwards or Roberson because during the gap between his
request for counsel and reinterrogation Hall remained in jail, but
he was there because he was already serving a prior sentence. The
court held that Hall was not "in custody" as that term has been
used in the context of Edwards and Roberson. The court observed
that one could readily argue that Hall was more comfortable within
the surroundings in which he was interrogated than the two Secret
Service Agents who interrogated him. Id. at 962. The court
concluded that Edwards cannot "be interpreted within this appeal
to grant to Hall such a blanket protection continuing ad infinitum."
Id. at 963.
The State subscribed to the theory that the dirt in the eyeglass
case may have been a bizzare souvenir of his burial of Michelle's
Agent Hall testified on direct examination, without objection,
that he compared soil samples from the disturbed area in the Clark
plot in the Wellfleet cemetery with soil from the eyeglass case.
He said that the soils were not an "absolute match like one might
get from a fingerprint," but that sample from the eyeglass case
and the disturbed area exhibited the same makeup (quartz and other
miscellaneous minerals) and both samples exhibited an orange
coating. He opined that the soils in both samples had the same
color, texture, and composition, and therefore, the soil from the
Clark cemetery plot was the "likely source" for the soil in the
eyeglass case. Because the foregoing testimony came in without
objection, it does not matter that earlier, when Agent Hall was
asked on direct examination, "And could you find any difference in
composition, texture, or color between those two samples?" that
appellant's counsel objected. See S&S Building Corporation v.
Fidelity Storage Corporation, 270 Md. 184, 192 (1973) (error, if
any, in admission of certain testimony over objection was not
prejudicial when the same testimony was given later without
The State did not concede that appellant really did start work at
2:46 p.m. on the date Michelle disappeared. The State produced a
witness who saw appellant's pickup truck parked at his brother's
house about 3 p.m.
There was a dispute in the trial court as to whether Mr. Dorr was,
in fact, hypnotized. The motions court found that he was