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Opinions – 6/4/12: Maryland Court of Special Appeals

Alternative Dispute Resolution

Right to enforce arbitration clause

BOTTOM LINE: The circuit court erred in granting defendants’ request for arbitration because the defendants were not signatories to the contract that contained the arbitration clause; nor was there a “significant relationship” between the plaintiff’s asserted claims and the contract containing the broadly-worded arbitration clause.

CASE: Griggs v. Evans, No. 2596, September Term, 2009 (filed May 2, 2012) (Judges KRAUSER, Eyler, J., & Watts). RecordFax No. 12-0502-01, 32 pages.

FACTS: Helen and Victor Griggs owned a home which was financed by notes secured by two deeds of trust. In early January 2006, they received an unsolicited telephone call from Andreas Teddy Dailey, an account executive for Beneficial Mortgage Company of Maryland, offering to refinance their mortgage.

The Griggs went to Beneficial’s office to execute the loan documents. Also there were Luke Evans, Beneficial’s office manager, Marc Kurlander, an independent loan closer who worked for Integrated Real Estate, and Dailey. The Griggs signed a note, deed of trust, and arbitration rider (collectively the Mortgage Agreement), as well as an application for credit life insurance from Household Life Insurance Company. Mrs. Griggs claimed that neither she nor her husband were aware that the life insurance application was among the documents they were executing.

Shortly after the completion of the refinancing, the Griggs became aware of the existence of the insurance policy, as the first loan statement they received included a monthly insurance premium of $162.50. The Griggs paid the premium each month thereafter.

In 2008, Victor died of lung cancer. After her husband’s death, Helen Griggs filed an insurance claim with Household Life, demanding payment of $150,000, the maximum benefit under the policy. In March 2008, a representative of Household called Mrs. Griggs, asking about Victor’s health prior to his terminal illness. Mrs. Griggs disclosed that Victor had suffered from diabetes and hypertension.

Household Life denied Mrs. Griggs’ insurance claim on the ground that Victor had failed to disclose material facts about his medical history that, if they had been disclosed, would have resulted in a denial of coverage for him.

Mrs. Griggs filed a complaint against Household Life, alleging breach of contract and intentional infliction of emotional distress. Mrs. Griggs filed an amended complaint, joining Evans as a defendant, and adding an additional count alleging civil conspiracy: specifically, that Household Life and Evans conspired to fill out a fraudulent credit life insurance application, with the understanding that, if a claim were ever subsequently made, it would be denied. The circuit court dismissed the breach of contract claim against Evans and the civil conspiracy claim against both him and Household, without prejudice.

Mrs. Griggs filed a second amended complaint, joining Integrated Real Estate, Kurlander, and Dailey as defendants. The complaint re-alleged breach of contract by Household Life, intentional infliction of emotional distress by Household, Evans, Kurlander, and Dailey, and civil conspiracy involving Household and Evans and added insurance fraud by all of the defendants and a claim that Household Life and Integrated Real Estate were vicariously liable.

Household Life, Evans, and Dailey filed a motion to dismiss, asserting that, in the event that dismissal was not granted, arbitration was compelled. The court granted the motion, ordering Griggs to submit to arbitration on all issues, and staying the proceeding pending the outcome of arbitration.

Griggs appealed to the Court of Special Appeals, which vacated and remanded.

LAW: Although this case fell within the Federal Arbitration Act (FAA), as the arbitration rider is part of a contract involving interstate commerce and it expressly states that it is governed by the FAA, state law determined whether that arbitration rider can be enforced. Arthur Andersen LLP v. Carlisle, 556 U.S. 624 (2009).

The credit life insurance policy, prepared by Household Life, not only did not include an arbitration clause but contained an integration provision, designated the “Entire Contract” provision. By this provision, Household Life disclaimed any suggestion that the provision or clause of any other contract, which would include the Mortgage Agreement and its arbitration rider, was incorporated by reference into the credit life insurance contract.

Just as “a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit,” United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582 (1960), so it may not invoke an arbitration agreement it has refused to be bound by, when such an invocation suits its purposes.

The arbitration rider at issue provided that either the “Lender,” that is, Beneficial Mortgage, or the Griggses “may request that any claim, dispute, or controversy…arising from or relating to” the Mortgage Agreement “or the relationships which result from” that agreement, shall be resolved, upon the election of either party, by binding arbitration.

This is a “broadly worded” arbitration clause. See American Recovery Corp. v. Computerized Thermal Imaging, Inc., 96 F.3d 88, 92-93 (4th Cir. 1996). A “broadly worded” arbitration clause triggers the “significant relationship test,” which states that “when a ‘significant relationship’ exists between the asserted claims and the contract in which the arbitration clause is contained,” those claims must be submitted to arbitration. Long v. Silver, 248 F.3d 309, 316 (4th Cir. 2001).

In American Recovery, 96 F.3d at 92, after entering into a joint venture to install thermal imaging equipment in hospitals in China, Computerized Thermal Imaging, Inc. (CTI) contracted with American Recovery Corporation (ARC), a consulting firm. Id. at 90. The consulting agreement contained an arbitration clause providing that “any dispute, controversy, or claim arising out of or related to this [c]onsulting [a]greement shall be resolved by binding arbitration.” Id. In addition to the consulting agreement with CTI, ARC entered into noncircumvention agreements with two engineering firms, Fluor-Daniel and Parsons Engineering, which prevented those firms from negotiating with the consortium to which CTI belonged except through ARC. Id. At CTI’s direction, ARC successfully negotiated with a third party, Electronic Data Systems (EDS), to provide capital and technical expertise to CTI as part of the joint venture. Id.

After ARC had purportedly performed under the consulting agreement but was not paid, Richard V. Secord, Director and President of ARC, resigned and was hired by CTI. Mr. Secord then assisted CTI in securing the services of Fluor-Daniel to work on the China project.

ARC filed suit, in federal district court, against CTI, Mr. Secord, and others. Id. at 90-91. CTI moved for arbitration. Id. at 91. The district court denied CTI’s motion. Id. at 90.

The 4th Circuit vacated the district court’s order denial of arbitration. Id. The broadly worded arbitration clause covered any claim “arising out of or related to” the contract. American Recovery, 96 F.3d at 93. ARC’s claims were significantly related to the consulting agreement and hence were arbitrable. Id. at 93-95.

The factual allegations underlying ARC’s first claim, that CTI tortiously induced Mr. Secord to breach a fiduciary duty owed to it, fell “within the scope of the consulting agreement’s arbitration clause.” Id. at 93-94. Proof of ARC’s claim that CTI induced Secord to breach his fiduciary duty was “rooted in the existence and terms of the consulting agreement,” or, in other words, that claim was significantly related to the consulting agreement, with its broadly worded arbitration clause. Id.

Furthermore, ARC’s claim that CTI tortiously induced Fluor-Daniel’s breach of its noncircumvention agreement was significantly related to the consulting agreement, since an “express term of the consulting agreement mandate[d] that CTI…not enter into any agreement with Fluor-Daniel in violation of the non[-]circumvention agreement.” Id. And, finally, ARC’s quantum meruit claim was, also, significantly related to the consulting agreement, as ARC “again clearly relie[d] on the terms of the consulting agreement to prove its claim.” Id. at 95.

The facts of American Recovery differ materially from those of the instant case. In contrast to American Recovery, where arbitration was successfully invoked by a signatory to the contract containing the arbitration clause, none of the appellees was a party to the Mortgage Agreement containing the arbitration rider. Moreover, in American Recovery, the plaintiff’s claims were significantly related to the consulting agreement with its broadly worded arbitration clause. ARC relied upon the terms of the consulting agreement to prove its claims.

Here, Griggs’ claims did not rely at all on the terms of the Mortgage Agreement, the contract which includes the broadly worded arbitration rider. Rather, their claims — breach of the insurance policy and insurance fraud — were based solely on the terms of the optional credit life insurance contract and the circumstances surrounding the formation of that contract.

Evans, Dailey, Kurlander, and Integrated Real Estate “had two distinct relationships” with the Griggs: specifically, they served as agents of Beneficial Mortgage in closing the mortgage loan, and they acted as agents of Household Life in selling the optional credit life insurance policy to the Griggs. Household Life, itself, was not even involved in closing the Griggs’ mortgage loan. In fact, Household Life’s only relationship with the Griggs was in providing them with credit life insurance. Moreover, the Griggs’ claims derived solely from actions taken by Evans, Dailey, Kurlander, and Integrated Real Estate, acting as Household’s agents, to induce the Griggs to purchase credit life insurance and were not “significantly related” to the Mortgage Agreement and its broadly worded arbitration clause. See Wachovia Bank, N.A. v. Schmidt, 445 F.3d 762 (4th Cir. 2006).

Finally, if signatories to an agreement containing an arbitration provision cannot enforce that provision because of the absence of a “significant relationship” between the claims and the contract containing the arbitration provision, then, a fortiori, non-signatories to such an agreement, as defendants were, cannot.

COMMENTARY: The doctrine of equitable estoppel permits non-signatories to enforce an arbitration provision in several instances.

The first instance is when a signatory “must rely on the terms of the written agreement [containing the arbitration clause] in asserting [its] claims,” Sunkist Soft Drinks, Inc. v. Sunkist Growers, Inc., 10 F.3d 753, 757 (11th Cir. 1993), and “seeks to claim the benefit of” such an agreement “while simultaneously attempting to avoid the terms of an arbitration provision contained therein.” Long v. Silver, 248 F.3d 309, 316 (4th Cir. 2001). See Case Handyman & Remodeling Services, LLC v. Schuele, 183 Md. App. 44, 54 (2008) (Case Handyman I);

The second instance in which a non-signatory may enforce an arbitration clause is “when the signatory to the contract containing [an] arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the non[-] signatory and one or more of the signatories to the contract.” Westmoreland v. Sadoux, 299 F.3d 462, 467 (5th Cir. 2002). See MS Dealer Service Corp. v. Franklin, 177 F.3d 942 (11th Cir. 1999).

However, the facts of this case differ from both MS Dealer and Case Handyman I. Instead, they are more similar to Brantley v. Republic Mortgage Insurance Co., 424 F.3d 392 (4th Cir. 2005), and Schmidt, 445 F.3d at 769, where non-signatories’ invocation of an arbitration clause has failed.

As in Brantley and Schmidt, none of the allegations in the instant case against any of the Defendants implicated a breach of a duty arising from the agreement which contained the arbitration rider. And, as in Brantley, it was undisputed that was no breach of the Mortgage Agreement by anyone. Moreover, Griggs’ claims did not rely on their own rights or obligations under the Mortgage Agreement, but, instead, were based on either Griggs’ rights under the credit life insurance policy or on alleged torts committed in procuring their agreement to purchase the policy.

In contrast, in Case Handyman I, the homeowners’ entire case depended on their asserted rights under the contract containing the arbitration clause; and, in MS Dealer, the car buyer’s claims were “intimately founded in and intertwined with the obligations imposed by” the contract containing the arbitration clause. MS Dealer, 177 F.3d at 948. Moreover, in MS Dealer, the arbitration clause at issue was incorporated by reference into the service contract that the car buyer contended she was fraudulently induced to sign, quite unlike here, where the credit life insurance policy disavowed incorporation by reference in its integration clause.

Furthermore, Griggs’ complaint did not allege any wrongdoing by Beneficial Mortgage, the signatory to the arbitration rider and Mortgage Agreement. Every claim concerned the allegedly fraudulent procurement of Griggs’ signatures on the contract for credit life insurance or the alleged breach of that contract by Household Life. Thus, the claims were “wholly separate from any action or remedy for breach of the underlying mortgage contract that is governed by the arbitration agreement.” Brantley, 424 F.3d at 396. And those claims did not “invoke any rights under the terms” of the Mortgage Agreement, nor did they “seek to impose any of [its] obligations on” any of the non-signatories. Schmidt, 445 F.3d at 770. Furthermore, although the credit life insurance “relates to the mortgage debt,” the alleged breach of the policy is “separate and wholly independent from the mortgage agreement.” Brantley, 424 F.3d at 396.

Furthermore, defendants were not entitled to enforce the arbitration rider under an agency theory, as agents of Beneficial Mortgage, a signatory. Where courts have permitted a non-signatory agent to enforce an arbitration agreement executed by his principal, the claims must relate to the agent’s actions on behalf of the principal to trigger the arbitration agreement. See, e.g., Letizia v. Prudential Bache Secs., Inc., 802 F.2d 1185, 1186-87 (9th Cir. 1986); Kruse v. AFLAC Int’l, Inc., 458 F. Supp. 2d375, 382-84 (E.D. Ky. 2006). The claims here did not relate to any of the defendants’ actions on behalf of Beneficial Mortgage, but only to their actions on behalf of Household Life and Integrated Real Estate.

PRACTICE TIPS: While detrimental reliance is normally an element of equitable estoppel, most states that apply equitable estoppel, in the context of arbitration agreement enforcement, do so without requiring that the party invoking the doctrine prove detrimental reliance. See Schuele v. Case Handyman & Remodeling Servs., LLC, 412 Md. 555, 563 n.3 (2010).

Criminal Procedure

Laches as a bar to post-conviction relief

BOTTOM LINE: The doctrine of laches is available to bar certain post-conviction relief in cases where sentence was imposed before October 1, 1995; however, the record was insufficient to determine whether defendant’s petition was barred by laches in this case.

CASE: Lopez v. State, No. 2916, September Term, 2008 (filed May 10, 2012) (Judges Eyler, D., Matricciani & SHARER (retired, specially assigned)). RecordFax No. 12-0510-00, 37 pages.

FACTS: Jose Lopez was convicted of attempted first degree rape, attempted robbery with a dangerous and deadly weapon, and burglary in two cases involving Cecilia R., which occurred in July 1985. Approximately a week after Lopez’s convictions, the State and Lopez entered into a plea agreement in four other cases, all involving different victims than Ms. R. and all occurring in 1984 and 1985. The agreement called for the State to recommend, and the Court to accept, a sentence of no more than two consecutive life sentences, accompanied by a waiver of any appellate relief in the cases involving Ms. R., as well as an agreement by the State not to prosecute Lopez for any future crimes then un-indicted or under investigation.

The court accepted the pleas and, in May 1986, Lopez was sentenced in all six cases. The aggregate sentence was two consecutive life terms and concurrent terms of life plus 155 years

In April 1997, Lopez filed a petition for post conviction relief in all of the cases, but withdrew this petition without prejudice.

In October 2005, Lopez filed identical petitions for post-conviction relief in the six cases, alleging ineffective assistance of counsel. In its response to Lopez’s petition, the State asserted that Lopez’s petition should be denied on the ground of laches. The circuit court agreed that laches barred Lopez’s petition and it denied the petition for post-conviction relief. The circuit court did not allow Lopez to testify as to his reasons for why his petition was filed in 1995.

The Court of Special Appeals vacated and remanded.

LAW: Maryland’s Uniform Post Conviction Procedure Act, CP §§7-101 to 7-301, provides for and regulates the post-conviction proceedings of certain persons who have been convicted of crimes. Under CP §7-103, only one petition for relief can be filed. Furthermore, unless extraordinary cause is shown, a petition may not be filed more than 10 years after the sentence was imposed.

The plain language of CP §7-103 does not permit Lopez’s petition in this case. His petition, first filed on October 3, 2005, was filed more than ten years after his 1986 sentences. Indeed, even his original petition, later withdrawn without prejudice, was filed in April 1997, beyond the 10 year limitation. Nevertheless, CP §7-103 is a more recent statute, enacted in 1995, after Lopez was sentenced, and is prospective only in application. See State v. Williamson, 408 Md. 269, 275 (2009). Thus, the issue was whether the General Assembly intended that petitions filed with respect to convictions in which a sentence was imposed prior to October 1, 1995, could be barred under the doctrine of laches.

The Act is derived from the common law. “The purpose of the Post Conviction Procedure Act was to create a simple statutory procedure, in place of the common law habeas corpus and coram nobis remedies, for collateral attacks upon criminal convictions and sentences.” Gluckstern v. Sutton, 319 Md. 634, 658 (1990).

“Generally,…[laches] must be pled, but it can be invoked by a court on its own initiative. [T]here is no inflexible rule as to what constitutes, or what does not constitute, laches; hence its existence must be determined by the facts and circumstances of each case. Moguel v. State, 184 Md. App. 465, 475 (2009).

Further, “[i]t is…well settled that laches `applies when there is an unreasonable delay in the assertion of one’s rights and that delay results in prejudice to the opposing party.’“ Id. (quoting Liddy v. Lamone, 398 Md. at 233, 244 (2007)). “Prejudice is `generally held to be anything that places [the defendant] in a less favorable position.’“ Moguel, 184 Md. App. at 475-76 (quoting Liddy, 398 Md. at 245).

In Creighton v. State, 87 Md. App. 736 (1991), the Court of Special Appeals considered whether the doctrine of laches applied to post-conviction cases. Creighton filed his petition 26 years after he had been convicted of first degree murder. The post-conviction court denied relief on two grounds, including that the petition was barred under the doctrine of laches. Id. at 739-40.

The Court concluded that the doctrine was not permitted under the then-existing post-conviction statute. Id. at 744. After citing the restriction in former Art. 27, §645A(a)(1) that any person may file a petition alleging error, provided the claim had not been finally litigated or waived in the underlying proceedings, the Court observed that: “[a]part from the limitation in subsection [645 A(a) (2)] that not more than two petitions arising from each trial may be filed, those appear to be the only restrictions on the ability to proceed under the Act — that the claim has not been finally litigated or waived in the manner noted.” Creighton, 87 Md. App. at 744-45.

Art. 27 §645 A(c) listed a number of instances when an allegation shall be deemed waived. “The failure to file a petition more promptly — even where prejudice ensues — is not one of the listed circumstances” in that subsection. Creighton, 87 Md. App. at 745. Subsection (d), concerning retrospective application of a new constitutional procedural or substantive standard decided by a higher appellate court subsequent to any decision on the merits, appeared to be the only one in §645 A expressly recognizing the possibility of a long delay in filing a petition. Creighton, 87 Md. App. at 745. Finally, subsection (e) provided that “[a] petition for relief under this subtitle may be filed at any time.” Creighton, 87 Md. App. at 746.

The Court concluded: “Subsection (e) would seem to negate any notion of claim preclusion — a disentitlement from proceeding at all under the Act because of delay. Subsections (a), (c), and (d) focus more on the question of issue preclusion, to which laches is particularly relevant, and seem to negate that as well. Even without these rather formidable barriers, Congress saw the need to provide express authority for the Federal courts to use the doctrine in this context. Absent such clear legislative direction, we can find no warrant under the current Maryland law for our doing so. Denial of the petition on the ground of laches was therefore error.” Creighton, 87 Md. App. at 746.

Two years after Creighton, the Court of Appeals, in Fairbanks v. State, 331 Md. 482 (1993), left open the possibility that laches would apply in post conviction proceedings. There, the petitioner was subject to enhanced penalties as a repeat offender. His argument was that the predicate for the enhanced penalty, a 1972 conviction, was infirm because there was no showing that he intelligently waived his right to trial by jury in that prior case. Id.

The Court of Appeals held that the defendant could not collaterally challenge the 1972 conviction at his sentencing in the subsequent case. Id. “A defendant who is prevented from challenging the constitutionality of a prior conviction at trial or during a sentencing proceeding is not thereby divested of an opportunity for relief. That defendant may thereafter mount a collateral challenge by any means that remain available, including post-conviction procedures, habeas corpus, error coram nobis, or other statutory or common law remedies. If successful, the defendant may possibly then challenge the conviction or sentence affected by the use of the constitutionally infirm conviction.” Id. at 492-93.

In footnote 3 to this quote, the Court elaborated: “A defendant may or may not be able to bring a collateral attack. [O]ur statute prohibits more than two post-conviction petitions arising out of a single trial. Article 27, § 645A(a)(2). Moreover, a defendant able to mount a collateral challenge may be barred by waiver or might be barred by laches.” Id. at 492 n. 3.

Subsequent to both Creighton and Fairbanks, the General Assembly, in 1995, amended §645A. The Act specifically provided that it is to apply prospectively only to post-conviction proceedings for sentences imposed on or after the effective date of the Act.

While the General Assembly recognized the decision in Creighton in its analysis, the analysis does not indicate that laches is entirely unavailable. Instead, the language in the analysis is qualified, noting only that the Court had previously held that the doctrine did not apply in post-conviction cases. Further, letters and testimony in support of the amendments express reservations about delay and stale petitions, issues which arguably concern the doctrine of laches.

In addition, the Court of Appeals expressed concern about unreasonable delay. See State v. Adams, 406 Md. 240 (2008). Moreover, a number of other courts have concluded that laches applies to post-conviction proceedings. See Raso v. Wall, 884 A.2d 391 (R.I. 2005); Oliver v. United States, 961 F.2d 1339 (1992).

It is possible to conceive proceedings under the Postconviction Act as a mixture of law and equity. See Bowie v. State, 234 Md. 585, 593 (1964). Therefore, as there are equitable principles that may be involved in a collateral civil attack on an underlying conviction, laches arguably should be available as an affirmative defense. LaSalle Bank, N.A., v. Reeves, 173 Md. App. 392, 407 (2007).

In contrast to the state of the law when Creighton was decided, the General Assembly has now made clear that post-conviction cases are subject to certain time restraints. While the statute does not specifically prescribe a time limit to cases where the sentence was imposed prior to October 1, 1995, the General Assembly did not intend only to limit the filing of petitions by individuals convicted and sentenced after that date.

Thus, the doctrine of laches applies in post-conviction proceedings in Maryland.

COMMENTARY: The general procedure for evaluating the affirmative defense of laches is two-fold. First, there must be an unreasonable or impermissible delay in asserting a particular claim. Second, that delay must prejudice the party invoking the defense. See Liddy, 398 Md. at 244.

In those jurisdictions that have permitted the invocation of the doctrine of laches to bar a long-delayed application for post-conviction relief, it has been held that the state has the burden of proving by a preponderance of the evidence that the applicant unreasonably delayed in seeking relief and that the state is prejudiced by the delay. See, e.g., Wright v. State, 711 So. 2d 66, 67-68 (Fla. Dist. Ct. App. 1998); Walker v. Mitchell, Warden, 299 S.E.2d 698, 703 (Va. 1983).

Here, the post-conviction court expressly declined to hear testimony or receive any evidence on the matter and instead relied on the pleadings and transcripts from Lopez’s jury trial and guilty pleas. This was so despite the fact that Lopez was immediately available to testify, accompanied by interpreters, and that his trial counsel was “on call.” Further, some of Lopez’s claims concerned failure of trial and appellate counsel to file an appeal from his jury trial and an application for leave to appeal from his guilty pleas. This information would appear to bear on the first prong of the inquiry, i.e., whether there was an unreasonable or impermissible delay in asserting a particular claim.

As for the second prong, while the State proffered that the State’s Attorney no longer had a file in these cases, the record did not reveal any attempt to locate or contact any of the victims. While the State’s Attorney may have lost the files in these cases, the names of the victims, their ages, and the location of the crimes were well documented.

Thus, the record was insufficient to conclude that Lopez’s claim was barred by laches. Therefore, the judgment was vacated and the case was remanded.

PRACTICE TIPS: If a sentence for a particular conviction has been served so that the person is no longer either incarcerated, on probation, or on parole on account of that conviction, the person may not file a post conviction petition regarding that conviction. See CP §7-101; see also Fairbanks, 331 Md. at 492 n.3.

Criminal Procedure

Waiver of Miranda rights

BOTTOM LINE: Where the State demonstrated that a Miranda warning was given to and understood by defendant, defendant knowingly, voluntarily, and intelligently waived his rights.

CASE: Warren v. State, No. 1996, September Term, 2009 (filed May 2, 2012) (Judges Wright, Matricciani & WATTS). RecordFax No. 12-0502-00, 50 pages.

FACTS: Kevin Warren was indicted in connection with a robbery and shooting that occurred at Robinson Place in Waldorf, Maryland, that resulted in the death of Briona Porter, a thirteen-year-old girl. Prior to trial, Warren moved to suppress statements he made to Detective John Elliott. As a witness for the State, Detective Elliott testified that he read Warren his Miranda rights, Miranda v. Arizona, 384 U.S. 436 (1966), and informed him of his right for his prompt presentation before a district court commissioner.

The State questioned Detective Elliott as to whether Warren appeared to be under the influence of any alcohol or drugs, to which Detective Elliott answered no. He testified that Warren appeared to understand the detective.

Detective Elliott questioned Warren extensively about the events of the night of the murder. He specifically asked Warren if he was responsible for this. He denied doing the shooting. Detective Elliott testified that at about quarter to one in the morning, Warren told him he didn’t want to answer any more questions without a lawyer and he stopped questioning him.

The circuit court granted the motion to suppress, in part, and denied it, in part. The court found that once Warren asked for and attorney, that was a full invocation of his right to remain silent and anything elicited after that was suppressed.

At trial, as a witness for the State, Charlene Woodland testified that she owned and operated an ice cream truck as a business to help raise money to send her daughter to college. Woodland testified that, on June 29, 2007, she took the ice cream truck for a “test drive” and ended up at Robinson Place. Woodland’s thirteen-year-old daughter, Briona, and Woodland’s friend, Tanya Butler, accompanied her in the rear of the truck. Woodland testified that she stopped her ice cream truck at the end of Robinson Place to adjust her side mirrors. According to Woodland, she went in the back of the truck and saw a man, whom she identified at trial as Warren, with a gun in the window. Woodland testified that Butler said they were being robbed and told her to get the money box. Woodland retrieved the money box, shoved it at Warren, ran back to the driver’s seat, and started driving away. Woodland testified that she heard gunshots, and that Briona screamed “mommy, he hit me.”

As a witness for the State, Roy James Irby testified that while he and Warren were in the same unit at the county jail, Warren discussed the case with him. According to Irby, Warren told him that he had been out “partying, drinking and drugging” with Deante Duckett, and he shot at an ice cream truck.

In his own defense, Warren testified that on June 29, 2007, he went to Robinson place to sell drugs. According to Warren, five other people, including Duckett, were present and were drinking with him. Warren testified that he saw a truck coming up Robinson Place and thought that it was law enforcement. Warren testified that he went to Oakley Drive and then heard gunshots coming from Robinson Place.

During the State’s cross-examination of Warren, the State questioned Warren about a conversation he had with William Smothers in the jail about this incident in which Warren told Smothers that he stuck the gun in the ice cream truck and started shooting. Warren denied ever telling Smothers that.

The State also asked Warren whether he knew Jonathan Marshall over in the jail. Warren answered no. The State persisted, asking Warren whether he ever talked to Marshall about the murder. Warren denied any conversation with Marshall.

A jury convicted Kevin Mark Warren of one count of first-degree murder (felony murder), two counts of attempted first-degree murder, three counts of first-degree assault, three counts of attempted robbery with a dangerous weapon, three counts of use of a handgun in the commission of a crime, and one count of wearing, carrying, or transporting a handgun. the circuit court sentenced Warren to life imprisonment for first-degree murder, two life sentences consecutive for attempted first-degree murder, and twenty years’ imprisonment concurrent for use of a handgun in a crime of violence.

The Court of Special Appeals affirmed.

LAW: Warren contended that the State met its burden in proving that he waived his Miranda rights during a custodial interrogation.

“The trial court’s determination regarding whether a confession was made voluntarily is a mixed question of law and fact. As such, we undertake a de novo review of the trial judge’s ultimate determination on the issue of voluntariness. Our review of the Circuit Court’s denial of Appellant’s motion to suppress is limited to the record of the suppression hearing.” Winder v. State, 362 Md. 275 (2001).

The State’s burden of proof for proving that a defendant waived his or her Miranda rights is by a preponderance of the evidence: “In undertaking to prove a waiver of Miranda rights, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel. The heavy burden shouldered by the State is only proof by a preponderance of the evidence.” McIntyre v. State, 309 Md. 607, 614-15 (1987).

“It is well established that Miranda stands for the requirement that, before police may interrogate a person in custody, the police must advise the person that any statement he or she makes can be used against him in a court of law, so as to protect him from compelled self-incrimination. The person in custody may waive his Miranda rights if the waiver is voluntarily, knowingly, and intelligently made, and the determination of whether the waiver of an accused has been made knowingly and voluntarily is by a review of the totality of the circumstances.” Donaldson v. State, 200 Md. App. 581, 592 (2011).

In Ashford v. State, 147 Md. App. 1, 55-56 (2002), the Court of Special Appeals held that the defendant’s Miranda waiver was voluntary because, in part, the defendant did not testify at the motion hearing. “When the issue is voluntariness, rather than Miranda compliance…the failure of a defendant to testify almost forecloses any chance of prevailing. The voluntariness of a defendant’s response to possible pressures…is very subjective. Only the defendant can truly tell us what was going on in the defendant’s mind. Without such testimony, there is usually no direct evidence of involuntariness.” Id. at 56.

“Where the prosecution shows that a Miranda warning was given and that it was understood by the accused, an accused’s uncoerced statement establishes an implied waiver of the right to remain silent.” Berghuis v. Thompkins, 130 S. Ct. 2250, 2262 (2010).

In Berghuis, the Supreme Court held that the defendant knowingly and voluntarily waived his Miranda rights even though the defendant declined to sign a waiver and there was “conflicting evidence” of whether the defendant “verbally confirmed that he understood the rights listed on the form.” Id. at 2256. The defendant was “[l]argely silent” during the interrogation before he responded “yes” to the question: “Do you pray to God to forgive you for shooting that boy down?” Id. at 2256-57. The Supreme Court noted that: (1) “there [was] no contention that [the defendant] did not understand his rights; and from this it follows that he knew what he gave up when he spoke”; (2) the defendant’s “answer to [the detective]’s question…is a `course of conduct indicating waiver’ of the right to remain silent”; and (3) “there [was] no evidence that [the defendant]’s statement was coerced.” Id. at 2262-63.

After Detective Elliot read Warren his Miranda rights and asked Warren if he understood his rights, Warren replied “yes.” Warren then made uncoerced statements in which he admitted that “he was there on the scene” of the shooting; Warren later asserted his right to an attorney.

As in Berghuis, 130 S. Ct. at 2262-63, (1) “there [wa]s no contention that Warren did not understand his rights; and from this it follows that he knew what he gave up when he spoke” about being at the crime scene; (2) Warren’s answer to Detective Elliott’s questions constitutes “conduct indicating waiver of the right to remain silent”; and (3) Detective Elliott, the law enforcement officer responsible for the interrogation, testified that Warren was not coerced.

According to Detective Elliott’s testimony, which the circuit court found credible, Warren did not assert the right to an attorney until after answering questions, at which point Detective Elliott immediately ended the interview. Warren did not testify at the motion hearing, thus “ask[ing] us to guess what was in his head.” Ashford, 147 Md. App. at 56.

Given the testimony as to Detective Elliott’s verbatim Miranda reading and Warren’s response of “yes,” at the motion hearing, the State demonstrated that a Miranda warning was given and that it was understood by Warren. Warren’s “uncoerced statement establishe[d] an implied waiver of the right to remain silent.” Berghuis, 130 S. Ct. at 2262.

Based on the totality of the circumstances, Warren knowingly, voluntarily, and intelligently waived his Miranda rights.

COMMENTARY: Warren contended that the circuit court erred in allowing the State to cross-examine him about statements he allegedly made before trial to out-of-court declarants admitting to the crimes that took place on June 29, 2007.

Rule 5-801(c) provides: “`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.” Hearsay is not admissible. Rule 5-802.

However, under Rule 5-803(a)(l), a statement that is offered against a party and is the party’s own statement, in either an individual or representative capacity, is not excluded by the hearsay rule.

Rule 5-802.1 provides “The following statements previously made by a witness who testifies at the trial or hearing and who is subject to cross-examination concerning the statement are not excluded by the hearsay rule: (a) A statement that is inconsistent with the declarant’s testimony, if the statement was (1) given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; (2) reduced to writing and was signed by the declarant; or (3) recorded in substantially verbatim fashion by stenographic means contemporaneously with the making of the statement[.]”

Under Rule 5-616(a), the credibility of a witness may be attacked through questions asked of the witness, including questions that are directed at: “(1) Proving under Rule 5-613 that the witness has made statements that are inconsistent with the witness’s present testimony[.]” Rule 5-616(b)(1) provides that extrinsic evidence of prior inconsistent statements may be admitted as provided in Rule 5-613(b).

The State, in seeking to elicit a prior inconsistent statement from a witness, may, but is not required, to call the third party to whom the statement allegedly was made. See Snyder v. State, 104 Md. App. 533, 559 (1995).

Rule 5-616(a)(1) explicitly allows a party to impeach a witness with that witness’s prior inconsistent statements. Warren’s contention that the State used inadmissible hearsay declarations from unavailable witnesses in an attempt to impeach him was without merit, as the prosecutor only questioned Warren as to any out-of-court statements he might have made to Smothers or Marshall.

Rule 5-616 contemplates the use of a defendant’s own prior inconsistent statements acquired by the prosecution from third parties to whom a defendant has made statements concerning a crime. To adopt Warren’s contention would limit the prosecution to impeaching defendants, pursuant to Rule 5-616(a)(1), only with prior inconsistent statements defendants made to third parties when the third parties are called to testify at trial and the prior inconsistent statements are proven extrinsically, as opposed to intrinsically. This would abrogate the very basis and purpose of Rules 5-613(a) and 5-616, that is-to permit a party to examine a witness about an oral statement if the content and circumstances under which the statement is made, including the person to whom it was made, are disclosed, to attempt to elicit the statement directly from the witness himself.

The State questioned Warren concerning prior statements he allegedly made to Smothers and Marshall. Warren was given an opportunity to admit, deny, or explain the statements. He denied making them. Thereafter, the State was permitted, although not required, to prove the statements through extrinsic evidence as contemplated by Rules 5-613 and 5-616. Here, the State chose to accept Warren’s response and not call Smothers and Marshall to the stand as witnesses. That was proper and the State’s choice to make. The result of that choice was that no prior inconsistent statement by Warren was proven, either intrinsically (through him) or extrinsically (through Smothers or Marshall).

Thus, the circuit court did not err by permitting cross-examination of Warren as to his alleged out-of-court statements made to third parties.

PRACTICE TIPS: Where the questions to a co-defendant suggested the existence of facts which the prosecutor knew he could not prove, the prosecutor lacked a good faith belief in the factual predicate implied in his question. Elmer v. State, 353 Md. 1, 14-15 (1999). See also Walker v. State, 373 Md. 360, 400-01 (2003).