Meegan Jayne Smith[1]
The Maryland Court of Appeals affirmed the holding of the Court of Special Appeals, finding the Circuit Court for Montgomery County violated Rule 4–326(d)(2), but that the error was harmless beyond a reasonable doubt. Additionally, the Court of Appeals held the court did not err in denying Petitioner’s motion to suppress the statements he made during his interrogation. Gupta v. State, 156 A.3d 785 (Md. 2017).
I. Introduction
The instant case of Gupta v. State involved two major issues. First, the trial judge’s ex parte communication with a juror that violated Maryland Rule 4–326(d)(2).[2] In Gupta, the Maryland Court of Appeals found the communication between the judge and a juror about the juror’s impending conflict pertained to the action and the judge erred in not consulting the parties.[3] However, the Court also found the error was harmless beyond a reasonable doubt.[4] This was the first time in Maryland that a violation of Rule 4–326(d)(2) was deemed harmless.[5] The Court has created a difficult dynamic between ex parte communications and the strict nature of the governing rules.
The second issue is the Court’s determination that Gupta did not invoke his Miranda right to counsel when demanding a lawyer because it was not in “the context of custodial interrogation.”[6] The Court of Appeals opinion demonstrates a need for a definition of “the context of custodial interrogation”.[7] Additionally, the Court noted Gupta may have been attempting to invoke his right to counsel with the statement “[w]hen do I get to talk . . .,” but was interrupted by Detective Hamill.[8] However, the Court noted in dicta that the statement was ambiguous as to what he was asking and Gupta could have raised the question again but did not.[9] To this point, the Court’s opinion could serve to encourage interrogation practices that infringe upon a defendant’s Miranda rights.[10]
II. Historical Development
A. Ex Parte Communications Are Governed by The Strict Rules of Maryland Rule 4–326(d)(2).
Communications between the court and jurors are governed by Maryland Rule 4–326(d)(2).[11] The rule initially requires the judge to determine whether the communication pertains to the action.[12] If it pertains, the judge is then required to notify and consult the parties regarding the communication.[13] Winder v. State established, “[t]hese rules are not abstract guides. They are mandatory and must be strictly followed.”[14]
Grade v. State established “communications raising issues that ‘implicate and concern the juror’s ability to continue deliberating’ pertain[] to the action.”[15] Harris v. State further explained that matters are particularly relevant to the action when a juror’s ability to continue serving is dependent upon a certain deadline.[16] In Grade, the court found that electing to replace a juror with an alternate because the juror was going to be late, without consulting the parties, was a prime example of an action governed by Rule 4–326(d).[17] Additionally in Harris, the trial judge was informed a juror’s grandmother had passed away and without notifying the parties the secretary asked the juror if he wanted to continue serving. Again, the court found this was governed by Rule 4–326(d).[18]
Once a violation of Rule 4–326(d) is determined, the court must analyze it under the harmless error standard.[19] Under the harmless error standard the State has the burden of showing the error was harmless beyond a reasonable doubt.[20] No Maryland courts have held an error to be harmless prior to the Court of Special Appeals opinion in the instant case.[21] In Grade, the defendant was prejudiced because the court dismissed and replaced a juror without consulting the parties.[22] Additionally in Harris, the error was deemed harmful because the ex parte communication did not allow defense counsel the opportunity to address the juror’s emotional state with the court.[23] In the instant case, the Court distinguished the facts from previous case law to establish for the first time a harmless error with respect to the ex parte communication.[24]
B. The Miranda Right to Counsel Can Be Invoked in The Context of Custodial Interrogation.
In 1966, Miranda v. Arizona established under the Fifth and Fourteenth Amendments, a suspect has a right to an attorney when subject to custodial interrogation.[25] Davis v. United States founded the standard that a suspect must unambiguously invoke his right to counsel.[26] In doing so, the suspect must, at a minimum, make a statement that can be reasonably construed to be “an expression of a desire for the assistance of an attorney.”[27] Additionally, McNeil v. Wisconsin established the standard that the Miranda rights may only be invoked in the context of custodial interrogation and cannot be invoked anticipatorily.[28]
A major issue with respect to the requirements when invoking the right to counsel is that no court has defined what constitutes the “context of custodial interrogation.”[29] In light of the unsettled ambiguity, the Court in the instant case turned to the Court of Special Appeals of Maryland’s interpretation.[30] Marr v. State recognized the McNeil standard to mean that a suspect may only invoke Miranda rights when interrogation is imminent or has begun.[31] Costley v. State took the standard a step further and explained, “the language of McNeil suggests that custody, absent interrogation, is insufficient.”[32] Subsequent cases reiterated the McNeil requirement of “context of custodial interrogation” but never explicitly defined the parameters.[33]
In 2014, in Williams v. State, the Court of Special Appeals held for the first time that Miranda rights had been invoked even though interrogation had not begun.[34] The defendant was in the presence of detectives in the interrogation room and had been asked questions, but interrogation had not begun.[35] The defendant stated “I don’t want to say nothing. I don’t know . . .” and was interrupted by a detective.[36] The court distinguished the facts from previous Maryland cases because of the “compelling atmosphere” and the “danger of ‘inherent compulsion’ – that the Miranda prophylaxis was expressly designed to guard against.”[37] However, when Williams was heard by the Court of Appeals, the Court chose to address the ambiguity of the statement and found it did not invoke his Miranda rights.[38] Three judges dissented and argued the comment was not ambiguous.[39]
The historical context of the aforementioned cases demonstrates the confusion among Maryland courts when interpreting what constitutes the “context of custodial interrogation” as well what makes a statement unambiguous with respect to a defendant’s proper invocation of his or her Miranda rights.
III. Instant Case
On October 13, 2013, Rahul Gupta was arrested and taken to the Montgomery County Police Department where he was held for questioning regarding the murder of Mark Waugh.[40] While in his holding cell, Gupta shouted a few times – “‘I want a lawyer’.”[41] Between ten and thirty minutes later the detectives arrived to interview Gupta.[42] Gupta’s request for a lawyer was conveyed to the detectives before they began questioning.[43] Gupta was read his Miranda rights and stated he understood them.[44] Then he stated “[w]hen do I get to talk . . .,” but was interrupted by Detective Hamill.[45] The interrogation lasted fifty-five minutes and Gupta did not ask for a lawyer until an hour after the interrogation concluded.[46]
Gupta was charged with first and second degree murder.[47] Gupta filed a motion to suppress with respect to the statements made to the detectives, arguing they were a violation of his Miranda right to counsel.[48] The court noted Gupta’s demands for counsel, but found they were made prior to interrogation and did not establish his Miranda right to counsel.[49]
On Monday, March 2, Gupta’s trial began.[50] At trial, the circuit court explained to the potential jurors that the trial was anticipated to last eight days.[51] Juror 18A expressed difficulty and the court brought the issue to the parties.[52] The State agreed to striking the juror, but defense counsel objected.[53] The court chose to keep Juror 18A. [54]
On Friday, March 6, the court explained to the jurors that the trial would last longer than anticipated and they should prepare to serve until Friday, March 13 and “‘out of abundance of caution, some days after that.’”[55] On Monday, March 9, the court explained to the parties that Juror 18A had again raised an issue with serving for the extended duration.[56] Juror 18A was scheduled to be the keynote speaker at a conference in Las Vegas beginning on Saturday, March 14.[57] The court told the parties that they had already explained to Juror 18A that they would not “‘stand in the way of her going to her conference.’”[58]
On Thursday, March 12, the court received a note from Juror 18A reiterating her concerns about the following week.[59] The court read the note on the record before delivering jury instructions or hearing closing arguments.[60] The court expressed desire to replace her with an alternate, but asked the parties if any discussion was necessary.[61] Defense counsel did not want Juror 18A to be excused and presented other options.[62] Juror 18A was dismissed.[63]
On appeal, the Court of Special Appeals found the motion to suppress was properly denied because Gupta’s request for counsel occurred prior to interrogation.[64] Additionally, the court held under Rule 4–326(d)(2) that the ex parte communications did pertain to the action.[65] However, the court ultimately held that the circuit court’s error was harmless.[66]
The Court of Appeals granted certiorari to address the issues.[67] With respect to the motion to suppress, the Court determined Gupta’s request for a lawyer was prior to the “context of custodial interrogation.”[68] Additionally, the Court found that Gupta’s statement “When do I get to talk . . . ,” while interrupted, did not affect his pre-interrogation comments and did not invoke his Miranda right to counsel because it was ambiguous.[69]
Finally, the Court affirmed the Court of Special Appeals holding that the ex parte communication with Juror 18A violated Maryland Rule 4–326(d) but that the error was harmless.[70] The Court used Grade and Harris to show the violation of the rule.[71] The Court then differentiated the cases as to their effect on the action under the harmless error standard of Rule 4–326(d).[72] The Court affirmed the Court of Special Appeals, and for the first time in Maryland found the violation to be harmless.[73]
IV. Analysis
A. The Harmless Error Standard Invoked is Dangerous to The Strict Historical Nature of Maryland Rule 4–326(d).
The instant case has potential to counteract the established precedent that the rules outlined in Rule 4–326(d) “are not abstract guidelines. They are mandatory and must be strictly followed.”[74] The Court stated, “while we hold that the subsequent opportunities for input were sufficient, on the facts of this case . . . we note that the better practice for the circuit court would have been to inform the parties of the juror’s inquiry before providing a response, as required by the Rule.”[75] The court is counteracting the established bright line rule by holding the error harmless while also emphasizing the need for adherence to the rules.
The Court in Winder also describes the rules as “basic and relatively simple to adhere to in practice.”[76] This raises the question – if they are so simple, should there be an opportunity for an error to be harmless? The court in Winder furthers the point by commenting, “we have reversed convictions based on judicial failures to grasp the importance of these fundamental rules.”[77] Maintaining the fundamental nature of the rules and allowing harmless error may turn out to be mutually exclusive. The decision in Gupta allows for a potentially slippery slope with respect to the ex parte communications between judges and jurors.
B. The Miranda Rights May Be at Risk if the “Context of Custodial Interrogations” and “Unambiguous” Statements Are Not Defined.
Gupta v. State demonstrates the dangerous subjective nature of interpreting what constitutes the “context of custodial interrogations” under the McNeil standard as well as an “unambiguous” statement under the Davis standard. Miranda v. Arizona intended to protect suspects’ Constitutional rights when subject to custodial police interrogations.[78] The Miranda rights are most necessary in circumstances such as the instant case and the protection may be lost without proper definitions.
The Court noted in the instant case that a definition of “the context of custodial interrogation” was not necessary.[79] The Court then explained the context may be dependent upon the facts.[80] A definition would clarify whether interrogation must have commenced or if it is sufficient when imminent. The Court furthers a variance in the standard by choosing not to define the terms, which could ultimately be detrimental to Miranda rights.
The opinion also did not expound on the ambiguous nature of Gupta’s interrupted statement while being interrogated. The concurring opinion by Justice Adkins in the instant case operates as a dissent with respect to the Miranda issue.[81] Justice Adkins explains interruption is a commonly used interrogation tactic.[82] By deeming Gupta’s interrupted statement ambiguous, the majority is disregarding the purpose served by the precedent of Miranda – to counteract the intimidation surrounding custodial interrogations.[83] The analysis in the majority opinion will encourage the use of interrogation practices on defendants whom Miranda explicitly meant to safeguard.[84]
V. Conclusion
In the instant case, the Court of Appeals established that an ex parte communication error can be harmless.[85] This holding acts against the historical strictness of Rule 4–326(d). Additionally, the Court held that Gupta did not invoke his Miranda right to counsel because his initial requests for a lawyer were outside the context of custodial interrogations, and his interrupted statement to the detectives was ambiguous.[86] This holding demonstrates the need for clarification regarding the undefined standards surrounding invocation of a suspect’s Miranda rights.
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[1] Meegan Jayne Smith is a second-year law student at the University of Baltimore School of Law and a member of the Royal Graham Shannonhouse III Honor Society. In the summer of 2017, Meegan interned with Judge Paula Xinis on the United States District Court of Maryland. Meegan is currently working as the Linda Kennedy Fellow with the Homeless Persons Representation Project in Baltimore, MD.
[2] See Gupta v. State, 156 A.3d 785, 794 (Md. 2017).
[3] Id. at 799.
[4] Id.
[5] See id. at 798 (quoting Gupta v. State, 227 Md. App. 718, 728, 135 A.3d 926) (“We recognize that, prior to the Court of Special Appeals’ opinion below, ‘no reported Maryland appellate case [had] held that the State met its burden of proving that a trial court’s ex parte communication with a juror was harmless.’”).
[6] Id. at 804.
[7] See id. at 801 (“Neither the Supreme Court nor this Court has defined what constitutes ‘the context of custodial interrogation.’”).
[8] Id. at 791.
[9] Id. at 804.
[10] See id. at 805-06 (Adkins, J., concurring).
[11] Id. at 794.
[12] Maryland Rule 4–326(d)(2)(B) (“The judge shall determine whether the communication pertains to the action.”).
[13] Maryland Rule 4–326(d)(2)(C) (“If the judge determines the communication pertains to the action, the judge shall promptly, and before responding to the communication, direct that the parties be notified of the communication and invite and consider, on the record, the parties position on any response.”).
[14] Winder v. State, 362 Md. 275, 322, 765 A.2d 97 (2001).
[15] Grade v. State, 431 Md. 85, 100, 64 A.3d 197 (2013) (quoting State v. Harris, 428 Md. 700, 715, 53 A. 3d 1171 (2012)).
[16] Harris, 428 Md. at 716, 53 A.3d 1171 (“That is especially so, where, as here, the juror suggests that his or her ability to continue is dependent upon a speedy conclusion of the trial.”).
[17] Grade, 431 Md. at 100-01, 64 A.3d 197 (holding the ex parte communication was “squarely within the ambit of Rule 4–326(d).”).
[18] Harris, 428 Md. at 716, 53 A.3d 1171 (holding the ex parte communication pertained to the action because it “implicates, and may impact, a juror’s ability to continue deliberation.”).
[19] Harris, 428 Md. at 720, 53 A.3d 1171 (citing Taylor v. State, 352 Md. 338, 354, 722 A.2d 65 (1998)) (“A failure to comply with explicit mandate is error, and once such error is established, it only remains for this Court to determine whether that error was prejudicial to the defendant and, thus, requires reversal.”).
[20] See id. at 721, 53 A.3d 1171.
[21] Gupta, 227 Md. App. at 728, 135 A.3d 926 (“no reported Maryland appellate case held that the State met its burden of proving that a trial court’s ex parte communication with a juror was harmless.”).
[22] See Grade, 431 Md. at 105, 64 A.3d 197 (“The notification of counsel and their opportunity to have input are missing from the case at bar.”).
[23] See Harris, 428 Md. at 722, 53 A.3d 1171 (“not provided with the opportunity to evaluate the emotional state of the juror, nor to provide input on how to proceed.”).
[24] See Gupta, 156 A.3d at 799 (“We conclude that defense counsel’s multiple opportunities to provide input on how to address the situation with Juror 18A, and the circuit court’s acknowledgement on the record that it considered and rejected defense counsel’s suggestions, are sufficient to distinguish this case from cases like Grade and Harris, where no such input occurred.”).
[25] See Miranda v. Arizona, 384 U.S. 436, 469-73 (1966).
[26] See Davis v. United States, 512 U.S. 452, 459 (1994).
[27] Id. (quoting McNeil v. Wisconsin, 501 U.S. 171, 178 (1991)).
[28] McNeil, 501 U.S. at 182 n.3. (holding that the Supreme Court had “never held that a person can invoke his Miranda rights anticipatorily, in a context other that ‘custodial interrogation.’”).
[29] See supra text accompanying note 6.
[30] Id.
[31] Marr v. State, 134 Md. App. 152, 173, 759 A.2d 327 (2000) (finding that at least five federal courts understood the language of McNeil “to mean that an individual may not invoke the Miranda right to counsel before interrogation has begun or is imminent.”).
[32] Costley v. State, 175 Md. App. 90, 111, 926 A.2d 769 (2007).
[33] See Hoerauf v. State, 178 Md. App. 292, 304-05, 941 A.2d 1161 (2008). See also In re Darryl P., 211 Md. App. 112, 156, 63 A.3d 1142 (2013).
[34] Williams v. State, 219 Md. App. 295, 322, 100 A.3d. 1208 (2014).
[35] Id.
[36] Id. at 309, 100 A.3d 1208.
[37] Id. at 322, 100 A.3d 1208.
[38] Williams v. State, 445 Md. 452, 483, 128 A.3d 30 (2015).
[39] Id. at 484, 128 A.3d 30 (McDonald, J., dissenting) (“In my view, a review of the complete transcript and video of the police interview of Mr. Williams leads inevitably to the conclusion that he unambiguously asserted his right to remain silent, and that a reasonable officer would readily comprehend that election.”).
[40] Gupta, 156 A.3d at 790-91.
[41] Id. at 791.
[42] Id.
[43] Id.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] Id. (arguing “that the statements he made while being interrogated by Detectives Hamill and Fumagalli should be suppressed because they were obtained in violation of his right to have counsel present during questioning under Miranda.”).
[49] Id. (“The court found that Mr. Gupta had requested a lawyer ‘two to four times . . . while in custody before interrogation took place,’ and that ‘that communication was passed along to the detectives,’ or at least to Detective Fumagalli, by Officer Richardson. However, the court concluded that these demands did not equate to an invocation of the right to counsel under Miranda, because they were made prior to interrogation.”).
[50] Id. at 792.
[51] Id.
[52] Id. (“Juror 18A explained that she works ‘for a very small non-profit, so [her] absence for an extended period of time will be difficult.’ Additionally, she stated that she had ‘two children at home and no child care,’ so she would ‘be in a position to try to find somebody to look after’ them during the trial.”).
[53] See id. (arguing “‘she’s a good juror.’”).
[54] Id.
[55] Id.
[56] Id.
[57] Id.
[58] Id.
[59] Id. at 793 (“she would not be able to serve on the jury the following Monday, Tuesday, or Wednesday.”).
[60] Id.
[61] Id.
[62] See id. (arguing deliberations could be postponed or could begin that day (Friday), “and could continue late into the night, if necessary.”).
[63] Id. (“Therefore, the court stated that it was exercising its discretion under Maryland Rule 4-312 in finding that Juror 18A was ‘unable to adequately perform jury service.’”).
[64] Gupta, 135 A.3d at 944.
[65] Id. at 934.
[66] Id. at 937.
[67] Gupta, 156 A.3d at 794.
[68] Id. at 805.
[69] Id. at 804. (holding “[i]nstead, we conclude that Mr. Gupta’s actions after stating that he understood his Miranda rights – cooperating with the detectives and answering their questions – constitute an implicit waiver of those rights.”).
[70] Id. at 799.
[71] See id. at 796 (“As in Harris, her ‘ability to continue [was] dependent upon a speedy conclusion of the trial,’ . . . Also, as in Grade, Juror 18A’s inquiry ‘was a communication directed to the court, about a subject, the effect of which, if acted on, could, or would, affect the make-up of the fact-finding panel as determined by the parties.”).
[72] See supra text accompanying note 23.
[73] Id. at 798.
[74] Winder, 362 Md. at 322, 765 A.2d 97.
[75] Gupta, 156 A.3d at 799 (explaining the holding).
[76] Winder, 362 Md. at 322, 765 A.2d 97.
[77] Id. at 323, 765 A.2d 97 (arguing case law demonstrates that the “innocent motives” of the judge are not considered in light of the accused’s right to a fair trial).
[78] Miranda, 484 U.S. at 439 (“The cases before us raise questions which go to the roots of our concepts of American criminal jurisprudence: the restraints society must observe consistent with the Federal Constitution in prosecuting individuals for crime.”).
[79] Gupta, 156 A.3d at 803 (“Here, we again decline to offer a precise definition for ‘the context of custodial interrogation,’ because a precise definition is unnecessary to resolve the question presented on the facts of this case.”).
[80] Id. (citing Williams, 219 Md. App. at 322, 100 A.3d 1208) (“Thus, we hold that, while there may be some instances in which a suspect could invoke his Miranda rights post-custody but pre-interrogation.”).
[81] Id. at 805 (Adkins, J., concurring) (“Respectfully, I concur with the judgement of the Majority, but disagree with its analysis of the Miranda issue.”).
[82] Id. at 806 (Adkins, J., concurring) (quoting Saul M. Kassin et al., Police Interviewing and Interrogation: A Self-Report Survey of Police Practices and Beliefs, 31 Law & Hum. Behav. 381 (2007)) (“Indeed, according to one study, ‘[i]nterrupting a suspect’s denials and objections’ is the eighth most commonly used interrogation technique.”).
[83] See id. (Adkins, J., concurring) (citing Miranda, 384 U.S. at 467-70) (“Although the interruption methodology is effective and acceptable, it should not be used to hamper individuals’ exercise of their Miranda rights. Miranda warnings exist as a counterbalance to the coercive atmosphere of custodial interrogation.”).
[84] See id. at 805-06 (Adkins, J., concurring).
[85] Id. at 798.
[86] See supra text accompanying note 48.
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