ANNAPOLIS – Are you a reasonable person?
If so, imagine you are in a hospital being treated for multiple gunshot wounds when a visibly armed detective shows up at your room at 5:40 a.m. and says he will drive you to the police station to get your statement as a crime victim. You are then driven – in hospital garb with a bandaged head – to the police station, where you are escorted through a door separate from the public entrance and brought to an interrogation room.
You are never handcuffed and are repeatedly told you are not under arrest.
After six minutes of answering questions, an officer informs you of your right to remain silent and to have an attorney present.
Would you have considered yourself in police custody, and not free to leave, before the questioning began?
The answer is important because once in custody the police would have had to inform you of your rights before asking questions, under the U.S. Supreme Court’s 1966 decision in Miranda v. Arizona.
Such was the issue facing Maryland’s top court as it considered whether Terrance J. Brown’s answers to officers’ questions can be admitted at his pending first-degree murder trial in the October 2014 slayings of two people at the Elks Lodge in Cambridge.
Brown prevailed Monday, as the Court of Appeals ruled 5-2 that he was already in custody when he entered the interrogation room and thus his answers cannot be used against him at trial. Those answers put Brown at the scene of the fatal shootings.
“We determine that a reasonable person in Brown’s position – an individual in hospital garb, suffering from multiple gunshot wounds, without his or her vehicle – would feel inhibited from simply leaving the presence of the police,” Judge Michele D. Hotten wrote for the majority.
“(T)he fact that Brown was told by police that he was a ‘victim’ does not change our ultimate conclusion,” Hotten added. “Similar to our analysis regarding the fact that Brown was told he was ‘not under arrest,’ the contemporaneous conduct of the police had the effect of nullifying the notion that Brown was considered as only a victim.”
The high court’s decision reinstated a Dorchester County Circuit Court judge’s similar determination that Brown was in custody and his answers before being advised of his rights are inadmissible as evidence. The intermediate Court of Special Appeals had overturned the judge’s decision, prompting Brown to seek review by the high court.
Brown is charged in the shooting deaths of LeRon Todd and Ashley Cornish during a party at the lodge in the early minutes of Oct. 5, 2014. Brown was shot twice during the encounter.
Maryland State Trooper Greg Fellon responded to Brown’s purported 911 call saying he was injured and at the Hurlock Village Apartments. Fellon found Brown, who was then transported at about 1:55 a.m. to Peninsula Regional Medical Center in Salisbury.
About four hours later, Detective Edward Howard arrived at the hospital and brought Brown to the Cambridge Police Department, where they were met by the lead detective, Chris Flynn. Flynn participated in the questioning and advised Brown of his rights.
Chief Judge Mary Ellen Barbera dissented from the high court’s decision, focusing on Howard’s repeated assurances to Brown that he was a victim, not under arrest and that the officers were willing to accommodate him if he wanted to leave.
“This interaction was entirely consistent with the police officers’ treatment of Brown as a shooting victim from the moment Trooper Fellon met him at the apartment complex up to and inclusive of the first six minutes of the interrogation, which is the portion of the interrogation that concerns us,” Barbera wrote. “A reasonable person under, the same circumstances, would not feel effectively under arrest and unable to terminate the encounter.”
The Maryland attorney general’s office on Wednesday criticized the high court’s decision.
“The Court of Appeals in this case based its finding of Miranda custody on a large number of factors, many of which are irrelevant to, or weigh only slightly in favor of, a finding of custody (such as the fact that Brown was suffering from multiple gunshot wounds received hours earlier),” the statement read. “We agree with the dissent that the majority of the court placed too much weight on these factors, while ignoring other factors that suggest that Brown was not in Miranda custody. We are reviewing the opinion to determine whether a petition for writ of certiorari to the Supreme Court is advisable.”
Assistant Maryland Public Defender Katherine P. Rasin, Brown’s appellate attorney, declined to comment Wednesday on the court’s decision.
Hotten was joined in the majority opinion by Judges Clayton Greene Jr., Sally D. Adkins, Shirley M. Watts and Lynne A. Battaglia, a retired judge sitting by special assignment.
Judge Robert N. McDonald joined Barbera’s dissent.
The court issued its decision in Terrance J. Brown v. State of Maryland, No. 64 September Term 2015.