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CSA overturns finding in attempted murder case, orders new hearing

A teenager is entitled to a new delinquency trial on attempted murder charges because he was denied his Sixth Amendment right to counsel following his indictment.

In its 3-0 decision, the Court of Special Appeals said the then-17-year-old defendant should have been afforded counsel after being formally charged with the crime and certainly before being subjected to a two-hour, middle-of-the-night interrogation that concluded with his confession.

While there was no violation of the teen’s Fifth Amendment right to an attorney, which a suspect must invoke after being advised of that right via a Miranda warning, the intermediate appellate court distinguished that from the Sixth Amendment right to counsel — which automatically attaches upon a defendant’s indictment.

“The key to understanding the law of confessions is to understand that there is no law of confessions,” retired Judge Charles E. Moylan Jr. wrote in the 91-page opinion. “There are, however, many laws of confessions.”

The Sixth Amendment “conferred on the appellant the right not to be interrogated at all without his lawyer being present,” Moylan wrote for the court.

The right to counsel is stronger under the Sixth than under the Fifth Amendment because a charged defendant has a greater interest than an arrestee in having counsel stand “as a medium between himself and the state,” Moylan wrote.

“The prophylactic right to counsel [under the Fifth Amendment] only comes into existence when it is unambiguously invoked, perhaps deep into the interrogation, if ever,” Moylan added. “The constitutional [Sixth Amendment] right to counsel, by contrast, comes into existence automatically, whether invoked or not, at the moment the suspect is formally charged.”

The Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to have the assistance of counsel for his defense.”

Darryl P. became “the accused” upon his indictment, obligating the state to ensure he had counsel before any interrogation, wrote Moylan, a retired judge specially assigned to serve on the court.

Byron L. Warnken, a professor of criminal procedure, agreed with Moylan’s distinction and called the Sixth Amendment right to counsel “a high-grade Miranda” because it kicks in upon a formal criminal charge and need not be invoked.

“If the cops charge you, you’re under the Fifth Amendment; if the prosecutor charges you, you’re under the Sixth Amendment,” said Warnken, who teaches at the University of Baltimore School of Law.

Neither the teen’s attorney, George Harper, nor Brian S. Kleinbord, who heads the Maryland attorney general’s criminal appeals division, responded to telephone messages Monday seeking comment on the court’s decision.

Re-arrested while on bond

The accused juvenile, identified in court papers as Darryl P., was formally charged shortly after the Jan. 6, 2011, shooting of Terrell Swales and turned himself in to St. Mary’s County police the following month.

An interrogation by a deputy sheriff was cut short when the teen invoked his right to counsel, and he was released after posting a $10,000 bond on Feb. 23, 2011.

However, the St. Mary’s County Circuit Court grand jury handed up an indictment against him on April 6, 2011. Darryl P. was rearrested on May 6, 2011.

Shortly after his second arrest, Darryl P. was interrogated for two hours by Detective Corporal Robert Merritt of the sheriff’s office, without counsel, before confessing to being involved in the shooting.

Darryl P. argued that the confession should have been suppressed because he had invoked his right to counsel during the February interrogation. Merritt testified that Darryl P. initiated the conversation.

The juvenile court denied Darryl P.’s motion to exclude the confession. That court later found the teen delinquent for having been involved in an attempted murder.

But the Court of Special Appeals overturned the finding and ordered a new trial, holding that the indictment made Darryl P. “the accused” and thus entitled to counsel under the Sixth Amendment.

“During all that two-hour period … he very definitely had a Sixth Amendment right to counsel, which did not depend on its being invoked,” Moylan wrote. “The Sixth Amendment is concerned with the right of the appellant, as ‘the accused’ and particularly as a 17-year-old juvenile ‘accused,’ to have his lawyer present as a necessary medium between himself and Detective Corporal Merritt between 1:24 and 3:24 a.m. That right was never waived.”

If present, Darryl P.’s counsel could have argued that the teen’s re-arrest was invalid because the indictment arose from the same events that prompted the earlier charge, for which he was validly released on bond, Moylan wrote.

“Had counsel been present before any interrogation on May 6 began, as he should have been, counsel would have protested that the appellant was on bail and was not subject to arrest in the first place,” Moylan wrote. “Counsel would not merely have sat in on a custodial interrogation. Counsel would have indicated that no interrogation even take place.”



In Re: Darryl P., CSA No. 2942, September Term 2011, Argued March 4, 2013. Decided March 25, 2013. Opinion by Moylan, J (retired, specially assigned).


Did a police officer violate an indicted juvenile’s Sixth Amendment right to counsel by questioning him without an attorney present, notwithstanding a perceived waiver of his Fifth Amendment or Miranda rights?


Yes; the Sixth Amendment right to counsel for the accused is automatic and need not be invoked by the defendant, as is the case for an arrestee under the Fifth Amendment.


George Harper for appellant; Carrie Williams for appellee.

RecordFax #13-0325-02 (92 pages).