               REPORTED

IN THE COURT OF SPECIAL APPEALS

          OF MARYLAND

                No. 2653

        September Term, 2012



     GREGORY EMILIE SMITH

                   v.

      STATE OF MARYLAND



   Meredith,
   Graeff,
   Leahy,

                  JJ.



         Opinion by Leahy, J.



      Filed: December 1, 2014
      During a post-arrest interview, Appellant Gregory Emilie Smith waived his

Miranda rights and then described multiple occasions on which he engaged in

“consensual” anal intercourse with four-year-old K.N.1 Before his trial, Appellant moved

to suppress this confession, claiming that it was involuntary and obtained in violation of

Maryland’s common law rule prohibiting law enforcement officers from promising or

implying that a suspect will gain the advantage of non-prosecution or some other form of

assistance in exchange for a confession. In denying this motion, the Circuit Court for

Montgomery County concluded that no reasonable layperson would believe that they

would be afforded leniency upon confessing to “consensual” anal sex with a four-year-

old. At trial, Appellant’s recorded confession was played for the jury, and on May 3,

2012, the jury convicted Appellant of one count of sexual abuse of a minor, two counts of

first-degree sex offense, and one count of second-degree child abuse.        In his timely

appeal, Appellant presents only one question:

      “Did the lower court err in denying Appellant’s motion to suppress?”

      We affirm. We find that the law enforcement officers made no explicit promises,

and that a reasonable layperson in Appellant’s position would not have inferred from the

officers’ statements that he could gain the advantage of non-prosecution or leniency by

confessing to “consensual” anal intercourse with a four-year old. See Hill v. State, 418

Md. 62, 77 (2011).

                                         1


                                                We do not name the minor victim in this
                                         case. See Muthukumarana v. Montgomery Cnty.,
                                         370 Md. 447, 458 n.2 (2002).
                                                                 1
                                            I.

       A. The Interview

   Appellant was arrested on September 14, 2010, in the District of Columbia on an

outstanding warrant.    Detectives Michael Carin and Errol Birch of the Montgomery

County Police went to the D.C. police station to interview Appellant.            The DVD

recording of the interview shows Appellant wearing what appears to be sleepwear. He is

not handcuffed, but one of his legs is restrained to a device attached to the floor. The

interview room contains one desk and three chairs.        Although the detectives are in

plainclothes, it is unclear from the video whether the detectives were armed. Both of the

detectives, as well as Appellant, spoke in clear, calm voices throughout the interview, and

there is no indication that Appellant was threatened in any way.

       The detectives introduced themselves as police officers, told Appellant that they

wanted to interview him about K.N., and then read Appellant his rights pursuant to

Miranda v. Arizona, 384 U.S. 436 (1966). Appellant acknowledged that he understood

his rights, agreed to speak with the detectives, and then initialed and signed the Advice of

Rights Form.

       Appellant told the detectives that he was a computer programming student at

Strayer University. He also said he was not on any medications at that time, which was

noted as 9:10 a.m. He confirmed that a “couple of years ago” he lived in an apartment on

Georgia Avenue with Maria N. and her children, K.N. and D.N.




                                             2
       Detective Carin explained the allegations: “Okay. There’s no way to sugarcoat

this, because the information that we have seems pretty bad, okay?          Basically, she

disclosed to her Mom . . . Okay. K.N. and D.N were interviewed last week, and basically

they were talking about . . . you beat him up one day; and . . . you engaged K.N. in anal

intercourse. Okay. That’s basically why we are here.”      The detectives detailed K.N.’s

accusations, including that Appellant engaged in this behavior on multiple occasions.

They also indicated they had an eyewitness.

       Detective Carin told Appellant that he and Detective Birch did not execute

warrants or work on robbery cases, but they had to attend school to learn how to be more

like social workers.   He continued, “[O]ur main job isn’t to put cuffs on you and throw

you in jail. . . . [o]ur goal is to get the counseling for her so she can become whole

again.” In order to do that, he explained, they “have to have an understanding of what

happened.” He then queried, “you and I know it wasn’t her fault, correct?” Appellant

replied, “I don’t even know what you’re talking about. I never once put my hands on a

little girl.” After Detective Carin stated that “the bottom line is you and I know it

happened,” Appellant replied, “No, it didn’t.”

       Next the detective told Appellant that not only did they have an eyewitness, but

that a doctor examined K.N. and “there’s damage to her [anus].”2 Appellant responded, “I
                                          2


                                                   There was, in fact, no physical evidence
                                          of the abuse after several years had passed.
                                          However, as the State correctly points out in its
                                          brief, police deception may be a legitimate
                                          investigative technique where it does not rise to
                                          the level of an “‘overbearing inducement.”’
                                          Whittington v. State, 147 Md. App. 496, 520-21

                                              3
don’t care if it happened to her.      It wasn’t by me.” The detective then challenged

Appellant’s story, relating that K.N. identified Appellant as the perpetrator; Maria talked

about the time when Appellant beat up D.N.; there was a medical report; and a witness

walked in on Appellant and K.N. The detective stated, “you know exactly what I’m

talking about,” Appellant replied, “No, I don’t. I really don’t.”

   It was at this point, approximately 18:24 minutes into the interview, when the

discussion took a direction that is the subject of this appeal. Detective Birch took over

questioning:

       You know, this is the one thing that you got to understand, and I’m going to
       throw out another card to you, okay? When we do these cases, the most
       important thing is for you to stand up and be a man and accept your
       responsibility.

       The problem we have is, when we get these cases – we get these cases
       every day. And a lot of these girls, depending on the age of the boys, we
       polygraph them.

       The part we had a problem with is she’s saying you forced her, you forced
       her. Force is a huge thing. That’s the problem that I have, when someone
       says they were forced.
                                        * * *

       Part of the polygraph that she passed was she did have anal intercourse with
       you. The part that she did not do well on is the force. This is the
       opportunity for you – if there was force, we have a problem; if there’s not
       force, then it’s consensual, and that’s when she get’s [sic] help. Then we
       understand that she is not telling us the truth about that part.

       But sitting here, saying it didn’t happen with all these things here – It
       basically is going to be her story jamming you, and this is your opportunity,
       if it was not force, then you need to tell us, because what happens is you
       walk out of here, we’re going with the force.

                                           (2002) (quoting Ball v. State, 347 Md. 156, 178
                                           (1997)).

                                              4
       At 19:45 minutes into the interview, Detective Birch then made the following

statements that are the primary focus of Appellant’s arguments:

       And you get that shit all the time, “I was raped and I was forced.” Well,
       you’re going to get in trouble for that. If it was consensual, that’s a whole
       different story.

       That’s what we’re trying to figure out, is it force or was it consensual? And
       that’s what, and by sitting here and saying, “I don’t know what happened to
       her,” you can do that, you can throw the dice on that table, see if you’re
       going to win this – you’re not going to win. We’re going to go forward on
       force.

       Here is the opportunity to tell us it was not force, it was consensual.
       There’s a little difference in age and that’s just something that we got to
       deal with and she has to deal with, and she’s going to have to make better
       choices in the future.

       But the force part is what we’re hung up on.

       I’m going to tell you what. If she said it was consensual and she passed
       that, we wouldn’t come down here. It took us two hours to get down here
       to talk to you, to give your side of the story. It took me two hours to get
       down here. If she said it was consensual and passed that polygraph, we
       wouldn’t have come down here.

       The force part is the one that we were concerned about.

       Following this, and only 20:50 minutes into the interview, Appellant stated, “I

never forced her to do anything.” Immediately thereafter, the following transpired:

       Detective Birch: Okay. Tell me what the consensual part of it was and we
       can roll out of this. If it’s consensual, then tell us it’s consensual.

       [Appellant]: It was consensual.

Appellant then recounted details of having anal intercourse with K.N., claiming that “[i]t

was her idea.” He stated that K.N. cried one time, and he stopped. Appellant did not


                                             5
remember D.N. walking in on them. Appellant stated that the incidents began when K.N.

was four or five years old and that there were four or five such encounters with K.N. over

a six-month period.

       Detective Carin revealed that K.N. told the police that Appellant put a plastic bag

over her head. Appellant responded that “[t]here was never a plastic bag,” and explained

that he put a pillowcase over her head because “[s]he said she didn’t want to see

anything.”

       The detective also questioned Appellant about the incident regarding D.N.

Appellant claimed that he and D.N. were “just roughhousing in the house and it was an

accident.” Appellant admitted that he hit D.N. with an open hand, but maintained that it

was accidental. When asked about a reported injury to K.N.’s ear, Appellant stated that

he was chasing her “to be disciplined for something she did, and she ran into the wall.”

He denied throwing her or smacking her, but he confirmed that K.N.’s ear bled after this

incident.

       Appellant denied that he engaged in oral sex with K.N., but admitted that he

placed his finger in her vagina and her anus “[j]ust once or twice.” He further asserted

that K.N. “always initiated” the encounters and that K.N. “came and got [him].”

Appellant disclosed that after their encounters, he “told her not to tell anybody because

people don’t understand.”

       Appellant agreed he would write an apology to K.N. After 32:29 minutes, the

following dialogue was recorded:




                                            6
      Detective Birch: Okay. Let me ask you this. Do you know what you did
      was wrong?

      [Appellant]: (No audible response.)

      Detective Birch: Do you know it was illegal?

      [Appellant]: (No audible response.)

      Detective Birch: Do you know it was illegal no matter whether it was
      consensual or not?

      [Appellant]: (No audible response.)

      Detective Birch: So really the bottom line is no matter whether she said,
      “Let me [f___] you,” doesn’t make a difference. You’re still 100 percent
      wrong. You’re aware of that, correct?

      [Appellant]: (No audible response.)3

      Appellant was then left alone to write the apology letter. The transcript of the

interview then concluded approximately 33:40 minutes after it began.

      Thereafter, as shown on the DVD recording, about 43:20 minutes after the

interview began, Detective Carin returned to the interview room, gave Appellant a bottle
                                        3


                                                  Although the court does not, in its
                                        rulings, articulate its impressions of the DVD
                                        recording, we discuss the DVD to the extent
                                        that it informs our reading of the transcript,
                                        including the nonverbal conduct of both
                                        Appellant and the police. See Williams v. State,
                                        ___ Md. App. ____, ___, No. 651, Sept. Term
                                        2012, slip op. at 32 n.11 (filed Oct. 1, 2014).
                                        Here, on the DVD recording, Appellant is
                                        nodding his head affirmatively where the
                                        transcript indicates “(No audible response.)”
                                        The fact that Appellant nodded his head on the
                                        DVD was called to the court’s attention by
                                        counsel during the first hearing on the motion to
                                        suppress on March 9th.

                                             7
of water, and asked him to sign his apology. Detective Carin asked Appellant to read his

apology letter aloud, and he did so:

       Dear [K.N.]: I just wanted to say that I’m sorry for what I did to you. I
       don’t know why I didn’t just tell you no when I had the chance. If I could
       go back and change what I did, I would. Please know that none of this is
       your fault so don’t blame yourself for what happen [sic] because you didn’t
       anything wrong [sic]. Again I’m sorry and I hope you can put this behind
       you and live your life in peace.

When Detective Carin asked Appellant if this letter was referring to the anal intercourse

with K.N., Appellant responded, “right.”

       Appellant inquired about what would happen next, and the detective explained that

he would be transported to D.C. Central Booking and that he was charged with second-

degree sex offense, second-degree assault, and sex abuse of a minor as to K.N., and

second-degree child abuse as to D.N.4 Detective Carin also told Appellant that he could

not take him back to Maryland and that there would be an extradition hearing at some

point in D.C. After a few more clarifying questions, wherein Appellant maintained that

he never put a plastic bag over K.N.’s head, Appellant was left alone, approximately

48:15 minutes after the interview began.

       B. The Suppression Hearing

   On March 9, 2012, the circuit court (the “suppression court”) held a hearing on

Appellant’s Motion to Suppress. At the outset, the parties stipulated that Detectives Carin

and Birch had no contact with Appellant other than what was documented in the
                                           4


                                                  Appellant was ultimately charged with
                                           multiple counts of first- and second-degree
                                           sexual offenses and related offenses.


                                               8
transcript and by the recording.5     Neither Detective Carin nor Appellant testified at the

hearing, although both were present.

       Appellant’s counsel argued that his client’s confession was involuntary because

the officers made a promise of leniency and his client relied on that improper inducement.

Counsel offered as an improper inducement the following statement: “Okay. Tell me

what the consensual part of it was and we can roll out of this.” The suppression court

inquired, “how could it be that a reasonable person in the position of your client would

have inferred from the detective’s statement that he could gain . . . the advantage of non-

prosecution or other form of assistance by, if it [sic] was having consensual sex with a 4-

year-old?” The suppression court further queried, “objectively how could a layperson

believe a 4-year-old could consent to anything?” Appellant maintained that the inquiry

was simply whether the police promised him something, and whether he relied on that

promise in making a statement.       Appellant’s counsel asserted that “[h]e doesn’t have to

know whether it’s illegal or not.”

       The State responded that Appellant was arrested, held in custody, advised of his

Miranda rights, and then told what the allegations against him were before he made his

confession. It was not objectively reasonable for Appellant to believe that a four-year-old

could consent to anal intercourse, or that by saying so, Appellant would gain any

                                            5


                                                    As to the evidentiary portion of the
                                            hearing, the suppression court stated that it had
                                            read the transcript and, after defense counsel
                                            expressly stated that there was no objection to
                                            the court’s consideration of the DVD recording,
                                            declared the evidentiary record closed.

                                                9
advantage. The State contended that the detective’s statement “…we can roll out of this”

must be read in context. They had told Appellant they had traveled two hours to get his

side of the story, so the detectives wanted to be done and roll out of there:

       THE COURT: You’re saying what the detective meant, “All right, tell me
       it was consensual so I and my colleagues can go back to Montgomery
       County?”

       [THE STATE]: Not just what he meant, that’s what he said. “We will
       roll.”. . . He didn’t say, “you will roll out of here.”

       The suppression court engaged in extensive discussion with counsel over

application of the relevant Court of Appeals’ decisions to the facts presented, and

ultimately denied the motion, explaining:

       My conclusion, taking the transcript at face value, I mean, I conclude that
       no reasonable layperson in the position of the defendant would have
       inferred from the detective’s statements that he could gain the advantage of
       non-prosecution or some other form of leniency in this context because no
       reasonable person would believe that one can lawfully, under any
       circumstances, have sex with a 4-year-old. To me, that is the linchpin of
       the case.

       I could conjure other fact patterns, and I’ve discussed some of them with
       counsel, which could come down on one side of the ledger or the other side
       of the ledger, but, respectfully, not this one.

       On April 27, 2012, the suppression court held a hearing on Appellant’s motion to

reconsider. Most of the argument concerned conflicting interpretations of Hill v. State,

418 Md. 62 (2011), beginning with the following inquiry by the suppression court:

       [COURT]: If it’s reasonable [under Hill] on the one hand for someone to
       cough it up because they’re told, “If you give the 9-year-old an apology you
       won’t be prosecuted,” how different is that?




                                              10
       [THE STATE]: Under Hill they are promising him an explicit benefit of,
       “We are not going to go forward,” Here, they never make that promise to
       [Appellant]. Never make that promise to [Appellant].

The suppression court held the matter sub curia and reconvened on April 30, 2012, the

same day the jury was selected for trial.

       After permitting even further argument, the suppression court denied the motion

for reconsideration. In so ruling, the court found that at the time of the interview,

Appellant was indicted and under arrest, and that he was advised of and waived his

Miranda rights. Paraphrasing the Court of Appeals in Hill, the court acknowledged that

the question before it was “whether a reasonable layperson in the position of the

defendant would have inferred from the detective’s statement that he could gain the

advantage of non-prosecution or some other form of assistance.” The suppression court

explained:

       I understand what was decided in Hill, but I think there are important . . .
       factual differences between the Hill case and this case, some of which I’ve
       already recited, others of which are the nature of the detective’s statements
       and the circumstances under which they were made and the crimes at issue.
       Here, one distinguishing feature I see is while it is certainly illegal to have
       consensual sex with a minor, it’s a different crime if that consensual sex
       was accompanied by force. The force elevates it to first degree. I’m not
       saying it makes it better or worse, but it’s different. So that is one
       legitimate area where the police were trying to find out what they had was
       whether it was a first degree offense or not a first degree offense, but that
       doesn’t mean it wasn’t an offense. [6]



                                            6


                                                                 As dem o n strated b y th e forego ing facts, th e detectives h ad received in fo rm atio n fro m
                                            K .N . th at Ap p ellan t p u t a p lastic b ag o ver h er h ead , w hich w o u ld classify th e crim e as first-d egree sex
                                            o ffense und er M d . C o d e (2 00 2 , R ep l. V o l. 2 0 1 2 ), C rim in al L aw Article (“C L ”), § 3-3 0 5 (p ro h ib itin g
                                            fo rcefu l, n on co n sen su al sexu al acts w hile su ffo catin g). W ith o u t th e b ag, th e crim e w o u ld b e seco n d -
                                            d egree sex o ffen se u n d er C L § 3 -30 6 (20 0 2, R ep l. V o l. 2 0 1 2 & Su p p . 2 0 1 3 ). Alth o u gh d eterm inin g
                                            w h eth er a b ag w as in vo lved w as a legitim ate in q u iry, th e issue b efo re u s is n o t sim p ly w h eth er th e to p ic
                                            o f q uestio n in g w as app ro p riate; rath er, as w ill b e d iscu ssed in fra , th e issu e is w h ether th e d etectives
                                            im p ro perly pro m ised o r im plied len ien cy in exch an ge fo r a co n fessio n .




                                                  11
The court concluded by denying the motion, stating that it was “objectively

unreasonable” for:

       [T]his defendant . . . to have believed that if it was consensual: A, it would
       go away; B, he’d be released from D.C. jail; C, it wouldn’t be a crime. It
       would be a crime. It’d be a different crime. It wouldn’t be a first degree
       crime, it wouldn’t [sic] be some other crime, second degree, third degree,
       but it’s still a crime.

       The notion that a reasonable person would or could believe that having
       consensual sex with a 4-year-old is not problem, or that if I just say it’s
       consensual not only, even if it all doesn’t go away it’s going to be
       materially better is a notion which I frankly think is absurd.

       C. Trial and Disposition

       At Appellant’s trial, the State played the recorded statement for the jury, and on

May 3, 2012, the jury ultimately convicted Appellant of one count of sexual abuse of a

minor, two counts of first-degree sex offense, and one count of second-degree child

abuse.7 On January 31, 2013, the circuit court imposed the mandatory minimum sentence

of 25 years without possibility of parole for both counts of first-degree sex offense, each

to be served consecutively, a consecutive sentence of 25 years for sex abuse of a minor,

and a concurrent sentence of 15 years for second-degree child abuse. Appellant filed a

Notice of Appeal on February 12, 2013.

                                              II.

       The sole issue on appeal is the voluntariness of Appellant’s custodial confession.

Appellant contends that Detective Birch’s statements constituted an improper inducement

and that Appellant relied on those statements in making the confession. The State
                                          7


                                                 The jury acquitted Appellant of the
                                          charge involving D.N.

                                              12
counters that Appellant’s statement was voluntary for several reasons. First, unlike the

accused in Hill, here Appellant was arrested, and only after he waived his Miranda rights

and heard the allegations leveled against him did he volunteer that he had “consensual”

intercourse with a child. Second, the State argues that the detectives did not explicitly

make a promise or convey an improper inducement to Appellant. And finally, the State

contends that no reasonable layperson would believe that confessing to “consensual” anal

intercourse with a four-year-old would not result in prosecution or that such a confession

would result in the filing of a lesser charge.

       The issue of whether a confession is voluntary constitutes a mixed question of law

and fact. Winder v. State, 362 Md. 275, 310 (2001). The Court of Appeals has explained

this amalgam as follows:

       If the trial court determines that the statement was not made voluntarily, it
       will declare it inadmissible. That completely resolves the issue; it never
       becomes one for the jury. If, on the other hand, the court finds the
       statement voluntary, it will admit it and its voluntariness then becomes an
       issue which the jury must ultimately resolve.

Hof v. State, 337 Md. 581, 605 (1995) (internal citations omitted). As a result, we review

the court’s ultimate ruling on the issue of voluntariness de novo. Winder, 362 Md. at 310-

11. We are limited to the facts presented at the suppression hearing, and we must view

the “‘evidence and inferences that may be reasonably drawn therefrom in a light most

favorable to the prevailing party.’”     Lee v. State, 418 Md. 136, 148 (2011) (quoting

Owens v. State, 399 Md. 388, 403 (2007)); see also Williams v. State, 212 Md. App. 396,

401 n.3 (“When we review a circuit court's disposition of a motion to suppress, we look

exclusively at the record of the suppression hearing, view the evidence in the light most

                                                 13
favorable to the prevailing party on the motion, and defer to the fact findings of the

suppression judge unless clearly erroneous; however, we review the ultimate question of

constitutionality de novo.” (citing Walker v. State, 206 Md. App. 13, 22–23 (2012))), cert.

denied, 435 Md. 270 (2013).

       A confession may be admitted against an accused only when it has been

“determined that the confession was ‘(1) voluntary under Maryland non-constitutional

law, (2) voluntary under the Due Process Clause of the Fourteenth Amendment of the

United States Constitution and Article 22 of the Maryland Declaration of Rights,[8] and

(3) elicited in conformance with the mandates of Miranda.’” Ball v. State, 347 Md. 156,

173-74 (1997) (quoting Hof, 337 Md. at 597-98), cert. denied, 522 U.S. 1082 (1998);

accord Lee, 418 Md. at 158; Knight v. State, 381 Md. 517, 531-32 (2004). Appellant

challenges the voluntariness of his confession under Maryland common law.

       The common law rule in Maryland is that “a confession is involuntary if it is the

product of certain improper threats, promises, or inducements by the police.”                                                                              Lee, 418

Md. at 161 (citing Knight, 381 Md. at 532). In assessing the voluntariness of a statement

generally, we have traditionally examined “the totality of the circumstances affecting the

interrogation and confession.” Hill, 418 Md. at 75 (citing Knight, 381 Md. at 532). “A

non-exhaustive list of factors to consider in that analysis includes the length of

interrogation, the manner in which it was conducted, the number of police officers present

throughout the interrogation, and the age, education, and experience of the suspect.” Id.

                                          8
                                                               U n d er co n stitu tio n al law , co n fessio n s that are “th e resu lt o f p olice co n d u ct th at o verb ears
                                          th e w ill o f th e susp ect and in d uces th e su sp ect to co n fess” are p roh ib ited . Lee, 4 1 8 M d. at 1 5 9 (citin g
                                          A rizo n a v. Fu lm in a n te, 4 9 9 U .S. 2 79 , 2 8 8 (19 9 1)). T h e C o u rt o f Ap p eals h as n o ted th at n o t all
                                          d eceptive p ractices m eet th is test, an d th at n ot all pro m ises, th reats, o r in d ucem en ts ren d er a co n fessio n
                                          in volu n tary; rather, co u rts m u st co nsid er th e to tality o f th e circu m stan ces. Id . at 1 5 9 -6 0 .




                                                 14
(citing Williams v. State, 375 Md. 404, 429 (2003)). These factors, however, do not share

equal weight in our common law analysis; some are “transcendent and decisive.”

Williams, 375 Md. at 429. “[A] confession that is preceded or accompanied by threats or

a promise of advantage will be held involuntary, notwithstanding any other factors that

may suggest voluntariness, unless the State can establish that such threats or promises in

no way induced the confession.” Id. (emphasis added); see also Andrew V. Jezic et al.,

Maryland Law of Confessions § 3:1, at 68-71 (2013) (discussing the Court of Appeals’

departure from the traditional “totality of the circumstances” analysis under the common

law approach).

      In Hillard v. State, the Court of Appeals reaffirmed Maryland’s exclusionary rule

governing custodial confessions improperly induced by law enforcement:

      [U]nder Maryland criminal law, independent of any federal constitutional
      requirement, if an accused is told, or it is implied, that making an
      inculpatory statement will be to his advantage, in that he will be given help
      or some special consideration, and he makes remarks in reliance on that
      inducement, his declaration will be considered to have been involuntarily
      made and therefore inadmissible.

286 Md. 145, 153 (1979). Subsequently, the Court fashioned a two-part test based on

Hillard for examining whether a confession was involuntary under Maryland common

law. Winder, 362 Md. at 309. The first prong is whether “a police officer or agent of the

police force promises or implies to a suspect that he or she will be given special

consideration from a prosecuting authority or some other form of assistance in exchange

for the suspect’s confession.” Id. This prong of the test is objective. Id. at 311. To

resolve whether the officer’s conduct satisfies the first prong, “the court must determine



                                            15
whether a reasonable person in the position of the accused would be moved to make an

inculpatory statement upon hearing the officer’s declaration.” Hill, 418 Md. at 76. “An

accused’s subjective belief that he will receive a benefit in exchange for a confession

carries no weight under this prong.”     Hill, 418 Md. at 76.     A “threat, promise, or

inducement can be considered improper regardless whether it is express or implied[,]” id.

(citing Winder, 362 Md. at 308), and the “reasonable layperson” inquiry may not be

necessary in cases involving an express quid pro quo.9

                                         9


                                                 Compare Knight, 381 Md. at 537
                                         (concluding that an officer’s statement that “if
                                         down the line, after this case comes to an end,
                                         we’ll see what the State’s Attorney can do for
                                         you, with your case, with your charges,” was
                                         “clearly” an improper inducement), Winder, 362
                                         Md. at 314, 317-18 (concluding that the
                                         following statements clearly constituted
                                         improper inducements: “I can mention to the
                                         State’s Attorney, I can tell them . . . hey
                                         [appellant] will tell me everything that’s going
                                         on but [appellant] wants some help too” and “I
                                         can make you a promise, okay? I can help you. .
                                         . I could try to protect you.”), and Hillard, 286
                                         Md. at 153 (concluding that the following
                                         promise was improper: “I will go to bat for you
                                         to the extent that I will tell the State’s
                                         Attorney’s Office and the Court, number one,
                                         that you have cooperated, number two, you
                                         have told me the truth, and number three, I
                                         believe you were not knowledgeable as far as
                                         the murder was concerned”), with Hill, 418 Md.
                                         at 78-79 (concluding that the officer’s statement
                                         that the victim’s family “did not want to see him
                                         get into any trouble, but they only wanted an
                                         apology” would cause a reasonable layperson to
                                         infer leniency based on that statement upon his
                                         confession).

                                             16
      If the court finds that an improper inducement was made, then the court turns to

the second prong, which is whether “the suspect makes a confession in apparent reliance

on the police officer’s explicit or implicit inducement.” Lee, 418 Md. at 161 (citing

Hillard, 286 Md. at 153). This prong “triggers a causation analysis to determine whether

there was a nexus between the promise or inducement and the accused's confession.”

Winder, 362 Md. at 311. Absent the accused’s reliance on the improper remark, the

statement is admissible.   Id. at 311-12 (discussing Reynolds v. State, 327 Md. 494

(1992)).   In order “to determine whether a suspect relied upon an offer of help from an

interrogating authority in making a confession[,] we examine the particular facts and

circumstances surrounding the confession.” Id. at 312. It is the State’s burden to prove,

“by preponderance of the evidence, that the accused did not make the inculpatory

statement in reliance on the improper inducement.” Hill, 418 Md. at 77 (citing Hillard,

286 Md. at 153; Winder, 362 Md. at 310). “Both prongs must be satisfied before a

confession is deemed to be involuntary.” Winder, 362 Md. at 310.

      In the instant case, Appellant contends that the following statements made by the

detectives interviewing him were improper:

      1) “‘I was raped and I was forced.’ Well, you’re going to get in trouble for
         that. If it was consensual, that’s a whole different story.”

      2) “And our main job isn’t to put cuffs on you and throw you in jail. That’s
      not our job.”


      3) “This is the opportunity for your – if there was force, we have a problem;
      if there’s not force, then it’s consensual, and that’s when she get’s [sic]
      help.”



                                             17
       4) “I’m going to tell you what. If she said it was consensual and she passed
       that, we wouldn’t come down here. It took us two hours to get down here
       to talk to you, to give your side of the story. It took me two hours to get
       down here. If she said it was consensual and passed that polygraph, we
       wouldn’t have come down here.”

       5) “Okay. Tell me what the consensual part of it was and we can roll out of
       this.”

(Emphasis added). Based on these statements, Appellant contends that “[i]t is patently

obvious that the officer implied to Appellant that it would be better for him or to his

advantage to confess to consensual contact with [K.N.],” and that “all that is required to

make the statement involuntary” is “an implication that there would not be trouble or

there would be less trouble if [he] . . . admitted to consensual contact.”

       Turning to the first prong of the Hillard common law test, we are unable to

identify an express promise or offer of a benefit or leniency in exchange for Appellant’s

confession.   Accordingly, the detectives’ statements fall within the realm of implied

promises. See Winder, 362 Md. at 311 (noting that although an appellant “need not point

to an express quid pro quo,” he must demonstrate “a promise or offer within the

substance of the officer’s eliciting statement” (citing Reynolds, 327 Md. at 507)). To the

extent that a promise might be implied by the substance of the detectives’ statements, we

must determine whether a reasonable layperson in Appellant’s position would have been

moved to make an inculpatory statement upon hearing the statements. Hill, 418 Md. at

76.

        Hill v. State guides our determination of whether an officer’s statements to an

accused impermissibly imply a promise or leniency under the first prong of the Hillard


                                              18
test.   In that case, an ordained minister was accused of engaging in sexual conduct with

the eight- or nine-year-old victim. Hill, 418 Md. at 67. A detective orchestrated a one-

party consent phone call from the victim to the minister in an attempt to elicit an

admission or apology. Id. at 67-70. Four days later, the detective called the minister,

notified him that “his name came up in an investigation” and “it wasn’t that big of a

deal,” and asked if the minister would participate in an interview. Id. at 70. The minister

agreed and, during the interview at the police station, the detective disclosed that the

police had recorded the telephone call and that “[the victim] and his mother did not want

to see him get into trouble, but they only wanted an apology.” Id. at 71. The minister

proceeded to admit that he “masturbated” the victim six times and wrote an apology

letter. Id. At his suppression hearing, the minister testified that he wrote the apology

letter because he was “a minister, and all [he] wanted to do was have this over and not be

brought to shame because of a lie.” Id. at 72. In addition, he believed that supplying an

apology letter “would just end the nightmare and what [he] was going through.” Id. The

circuit court denied the minister’s motion to suppress, and we affirmed. Id. at 66. The

Court of Appeals granted certiorari and ultimately vacated our decision. Id.

        The Court held that detective’s remarks—that the victim and the victim’s mother

“did not want to see him get into trouble, but they only wanted an apology”—constituted

an improper inducement under prong one of the Hillard test because a reasonable

layperson in the suspect’s position would have taken the detective’s statements to mean

that “he could gain the advantage of non-prosecution or some other form of assistance,

upon making an apology to the victim and his family.” Id. at 78-79. The Court observed

                                            19
that, in the context of the case, “an objectively reasonable interpretation of the word

‘trouble,’ is trouble with the law.” Id. (citation omitted). Moreover, the Court concluded

that a reasonable layperson in the accused’s position, upon hearing the officer’s

statement, “would not necessarily understand that the State could prosecute him or her,

even against the wishes of the victim or victim’s family.” Id.

       We perceive meaningful factual distinctions between the instant case and Hill.

First, the accused in Hill was not arrested prior to questioning as was Appellant.   In the

instant case, Appellant was arrested, read his Miranda rights, and then—as he was sitting,

restrained in the police station—informed of the charges against him and that those

charges could not be “sugarcoat[ed]” because they were “pretty bad.” These facts do not

necessarily figure in the analysis of whether the detectives made an explicit promise of

assistance or leniency. But when, as here, we are dealing with implied assertions by the

detectives and are trying to ascertain what a reasonable layperson would take those

statements to mean, these facts do impact the circumstances and the determination of

whether a reasonable layperson would believe he could just “roll out of [t]here” by saying

that anal sex with a four-year old was consensual.

       Second, in Hill, the accused was told during a voluntary interview that the victim

did not want him to be in trouble so long as he apologized, and it was objectively

reasonable, from the vantage point of a layperson, that if he apologized he would not be

prosecuted. Here, the detectives said it was important to understand whether the sex was

forced.   Appellant contends that this implied some form of leniency if Appellant

confessed that the sex was consensual, but the detectives also told Appellant that they

                                            20
needed to know if the sex was forced so that the child could seek proper treatment. They

never actually said he would be charged with a lesser offense if the sex was consensual,

and they never offered Appellant assistance if he confessed. An “appeal to the inner

psychological pressure of conscience to tell the truth does not constitute coercion in the

legal sense.” Williams, slip op. at 37 (quoting Ball v. State, 347 Md. at 179) (internal

quotation marks and citations omitted). Appellant also argues that the detectives clearly

implied that he could roll out of his charges if he told them it was consensual,10 but as the

State pointed out at the hearing below, the detectives also told Appellant that they had

driven two hours to get his side of the story, and they said “we can roll out of this,” not

“you can roll out of this.” Clearly the detectives used all of their persuasive powers, even

telling some untruths while toeing the improper inducement line, but in the end, they did

                                           10


                                                    In Maryland, consent may be a defense
                                           to sex offense charges involving an adult victim,
                                           and, accordingly, a reasonable layperson might
                                           confess to consensual conduct if the victim was
                                           an adult. See CL § 3-305(a) (defining first-
                                           degree sex offense); § 3-306(a) (defining
                                           second-degree sex offense); § 3-303(a)
                                           (defining first-degree rape); § 3-304(a)
                                           (defining second-degree rape). Even where the
                                           victim is close to majority age, we note that the
                                           “mistake-of-age” defense in the context of
                                           statutory rape is not recognized in Maryland.
                                           See Owens v. State, 352 Md. 663, 674 (1999)
                                           (rejecting the “mistake-of-age” defense and
                                           affirming statutory rape’s characterization as a
                                           “strict liability crime”); Garnett v. State, 332
                                           Md. 571, 607 (1993) (observing that “a person
                                           engaging in intercourse with a female, whom he
                                           knows to be under 14[,] may not set up her
                                           consent as a defense”).

                                                21
not cross it. Standing between them and the other side was the impenetrable reality that

any reasonable layperson would recognize as ludicrous the chance of charges being

dropped or lesser charges being filed in exchange for a confession to a patently perverse

proposition—a four-year-old consenting to sexual conduct.

       This Court has stated definitively that children lack the capacity to provide

consent:

       [C]onsent to sexual contact with an adult cannot be given by a child as a
       matter of law. To be effective, consent must be given by one who has the
       capacity to give it. . . . We have no trouble in holding as a matter of law
       that seven and nine year old children are incapable of appreciating the
       nature, extent and probable consequences of sexual conduct with an adult,
       and thus, cannot provide valid consent. Moreover, . . . even when a person
       is in fact competent to give consent, a statute may prevent the consent from
       being effective if the statute is found to be intended to give special
       protection against certain kinds of harm. One example given by comment b
       [Restatement (Second) of Torts § 892(A), defining “effect of consent,”] is
       statutory rape.

Pettit v. Erie Ins. Exch., 117 Md. App. 212, 224-25 (1997) (emphasis added), aff’d, 349

Md. 777 (1998). Even without such a decree from the legislature or judiciary, objectively

reasonable people simply would not believe that a four-year-old child is capable of

consenting to sexual activity.    Cf. United States v. Kise, 369 F.3d 766, 774 (4th Cir.

2004) (noting that the defendant’s honest belief that a child is capable of consenting to

sexual activity is “undeniably perverse to objective individuals without his paraphilia”).

It so follows that it is manifestly unreasonable for a person to believe that a four-year-old

is capable of consenting to sexual intercourse and, accordingly, that confessing to

“consensual” anal intercourse with a four-year-old would yield non-prosecution or

leniency in prosecution.

                                             22
       Even if Appellant actually believed that the detectives’ statements meant that by

confessing to consensual sexual conduct, a lesser charge would be filed against him, we

note that encouraging a suspect to adopt a version of the facts that might mitigate the

punishment for the crime he committed is not in itself an improper inducement under

Maryland law. Williams, slip op. at 43. Moreover, in the instant case, the detectives did

not actually tell Appellant that a lesser charge may be filed against him by saying the sex

was consensual. We are not called upon to evaluate what Appellant might have believed

the detectives meant, but what a reasonable layperson would have understood the

detectives’ words to mean.     Lee, supra, 418 Md. at 156.        Indeed, “[a]n accused’s

subjective belief that he will receive a benefit in exchange for a confession carries no

weight under [prong one of the Hillard test.]”        Hill, 418 Md. at 76.     Because no

objectively reasonable layperson would rely on Detective Birch’s statements as a promise

of non-prosecution or a lesser charge, Detective Birch’s statements did not constitute an

improper inducement, and the first prong of the Hillard test is not satisfied. As a result,

we need not evaluate the second prong.11
                                           11


                                                    We note that even if we were to review
                                           the second prong, our review would be limited,
                                           because Appellant did not testify at his
                                           suppression hearing, thereby leaving only the
                                           transcript and DVD of the interview for us to
                                           consider. As this Court stated in Ashford v.
                                           State, 147 Md. App. 1, 56, cert. denied, 372
                                           Md. 430 (2002), “the failure of a defendant to
                                           testify almost forecloses any chance of
                                           prevailing” on a suppression motion based on
                                           an alleged absence of voluntariness. “Only the
                                           defendant can truly tell us what was going on in
                                           the defendant’s mind. Without such testimony,

                                                23
      Finally, we add that the totality of the circumstances do not suggest

involuntariness here.   While Appellant was under arrest and restrained by a device

attached between his leg and the floor, two detectives in plainclothes conducted the

interview in an interview room at the D.C. police station. Appellant appeared calm,

coherent, and awake throughout the interview, and stated that he was not on any

medications at the time. Further, Appellant was studying to be a computer programmer at

Strayer University, suggesting that he was of average intelligence and capable of

understanding what was happening during the course of the interview. Indeed, Appellant

stated that he understood his Miranda rights, agreed to speak with the detectives, and

initialed and signed the waiver of rights form. And, our review of the transcript and the

DVD recording persuades us that Appellant was not threatened or coerced into making a

statement.

      The suppression court properly denied the motion to suppress.

                                                        JUDGMENTS AFFIRMED.
                                                COSTS TO BE PAID BYAPPELLANT.




                                         there is usually no direct evidence of
                                         involuntariness.” Id.

                                           24
