Clement Reynolds v. State of Maryland, No. 84, September Term 2017. Opinion by Hotten,
J.

CRIMINAL LAW – CONSTITUTIONAL LAW – SILENCE – The Court of Appeals
held that an individual’s post-Miranda silence is generally inadmissible as substantive
evidence. A suspect’s post-arrest silence is more prejudicial than probative, and generally
should not be admitted. Kosh v. State, 382 Md. 218, 230, 854 A.2d 1259, 1267 (2004).
Constitutional safeguards protect an individual’s desire to remain silent from being
introduced as evidence of guilt.

CRIMINAL LAW – CONSTITUTIONAL LAW – IMPEACHMENT – The Court of
Appeals held that inconsistent statements made to law enforcement officers after invoking
Miranda protections are admissible for impeachment purposes. See Harris v. New York,
401 U.S. 222, 91 S.Ct. 643 (1971).

CRIMINAL LAW – CONSTITUTIONAL LAW – IMPEACHMENT – Where
statements made to law enforcement officers are not omissions, or selective silence, those
may be used for impeachment purposes if the evidence is probative. If “the impeaching
material would provide valuable aid to the jury in assessing the defendant’s credibility;
again, ‘the benefits of this process should not be lost.’” Oregon v. Hass, 420 U.S. 714,
722, 95 S.Ct. 1215, 1221 (1975). Here, Reynolds’s affirmative statements were of
probative impeachment value because Reynolds told arresting officers critical facts about
his alibi that were directly inconsistent with his trial testimony.
Circuit Court for Montgomery County
Case No. 125040C
Argued: May 8, 2018                       IN THE COURT OF APPEALS

                                                OF MARYLAND

                                                      No. 84

                                              September Term, 2017

                                      __________________________________

                                            CLEMENT REYNOLDS
                                                        v.
                                            STATE OF MARYLAND
                                      __________________________________

                                           Barbera, C.J.,
                                           Greene,
                                           Adkins,
                                           McDonald,
                                           Watts,
                                           Hotten,
                                           Getty,

                                                      JJ.
                                      __________________________________

                                              Opinion by Hotten, J.
                                      __________________________________

                                           Filed: August 27, 2018




          2018-08-27
          09:41-04:00
        On May 29, 2014, Petitioner Clement Reynolds (“Reynolds”) was indicted by the

Grand Jury for Montgomery County on charges of first degree murder, conspiracy to

commit first degree murder, and use of a handgun in the commission of a crime of violence,

stemming from the killing of Wesley King on November 18, 2002. On October 20, 2014,

the Circuit Court for Montgomery County held a hearing to address Reynolds’s Motion to

Suppress Custodial Statements, which was granted in part and denied in part. Following a

seven-day jury trial commencing on January 5, 2015, Reynolds was convicted of all counts.

On March 31, 2015, Reynolds was sentenced to concurrent life sentences for each of the

first degree murder and conspiracy to commit murder counts, and twenty years

imprisonment for the use of a handgun in commission of a crime of violence, to be served

consecutively. The first five years of his sentence for the use of a handgun charge was

without parole, pursuant to Criminal Law (“Crim. Law”) Article § 4-2041 of the Maryland

Code.

        Thereafter, Reynolds noted an appeal to the Court of Special Appeals, which

affirmed the judgment of the trial court in an unreported opinion on November 8, 2017.

Reynolds v. State, No. 0182, Sept. Term, 2015, 2017 WL 5171593 (Md. Ct. Spec. App.

Nov. 8, 2017), cert. granted, 457 Md. 399, 178 A.3d 1242 (2018). Reynolds now seeks

this Court’s review regarding whether he was “denied due process when the trial court

permitted the prosecutor to question [him] about ‘what he did not tell the police about his



        1
        See Crim. Law § 4-204(c)(1)(i) requiring that a person guilty of using a firearm in
a commission of a crime “shall be sentenced to imprisonment for not less than 5 years and
not exceeding 20 years.”
alibi defense, even though the omissions were a result of Reynolds[’s] post-arrest, post-

Miranda[2] invocation of silence and were not inconsistencies with his trial testimony.”

We answer this question in the negative and affirm the judgment of the Court of Special

Appeals.

                                    BACKGROUND

       On April 14, 2014, Reynolds was arrested at John F. Kennedy International Airport

in New York. An open warrant was issued on March 25, 2003 for “Kevin Reynolds”

regarding the November 18, 2002 murder of Wesley King (“King”) in Montgomery

County, Maryland. King was shot and killed outside of his apartment in Silver Spring,

Maryland. A warrant for Kevin Reynolds remained unserved until 2014, when it was

discovered that Kevin Reynolds was using the name of Dennis Graham. Upon his arrest

in New York, Reynolds was carrying a United States passport, a Connecticut driver’s

license, and other documents bearing the name of Dennis Graham. Although officers took

Reynolds’s fingerprints to ascertain whether he was the subject of the warrant, the analysis

was not completed for several days. Reynolds was taken to a New York City precinct,

where he was detained until Montgomery County Detectives Sean Riley and Frank Colbert

arrived to interview him.




       2
         In Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602 (1966), the Supreme Court
held, inter alia, that an individual has a right to remain silent during a custodial
interrogation.
                                             2
       The detectives informed Reynolds that they wanted to interview him about a murder

from 2002. Prior to advising Reynolds of his Miranda rights, Detective Colbert asked

Reynolds his name, and he replied “Dennis Graham.” Detective Colbert asked Reynolds

for his date of birth, whether he was in good physical condition, whether he was sober, how

far he went in high school, and whether he spoke languages other than English. The

detectives told Reynolds they believed he was using an alias, which the fingerprints would

soon confirm.

       Detective Colbert read Reynolds his Miranda rights at 2:17 a.m. Reynolds refused

to sign an Advice of Rights form, but Reynolds answered affirmatively that he understood

his rights. Detective Colbert asked Reynolds whether he had ever been to Maryland, to

which Reynolds replied, “I’ve been through Maryland.” When asked whether he had heard

of Montgomery County, Maryland or of a cold case homicide from 2002, Reynolds replied

that he knew of the County, but not the homicide. Eventually, the detectives asked

Reynolds directly whether he was Kevin Reynolds, to which he replied no. Detective

Colbert then told Reynolds that “[t]here’s overwhelming evidence that you murdered

somebody back in November of 2012 [sic]” and that this was Reynolds’s “opportunity to

talk this out.” Reynolds replied, “[t]here’s nothing I have to say.”

       The suppression court ruled that everything up to this point was admissible because

Reynolds had not yet invoked his right to remain silent, but found that Reynolds’s last reply

was a clear and unambiguous invocation of Reynolds’s right to remain silent.




                                             3
       Despite the fact, as the suppression court found, that Reynolds asserted the right to

remain silent, the police interrogation continued. Detective Colbert told Reynolds he had

a “list of evidence... [a]nd it’s overwhelming... [i]t’s your time to speak up about this.”

Reynolds repeated, “[t]here’s nothing I have to say. You’re trying to solve a homicide

and[.]” Detective Colbert interjected “our homicide is solved... I’d rather you just tell me

to go to hell and get out of here.” Detective Colbert asked Reynolds what country he was

in during November of 2002. Reynolds responded, “November of 2002? I was probably

in the Virgin Islands.” Reynolds indicated that he had family there. Detective Colbert then

asked Reynolds if he thought the evidence described by the detectives was enough to

convict someone. Reynolds initially responded, “I don’t know.” When Detective Colbert

added that Reynolds left the country after the homicide, Reynolds repeated, “I don’t know.

Nothing else to say.”

       Detective Colbert also engaged Reynolds in a conversation about Reynolds’s life.

Reynolds told Detective Colbert that he came to the United States and settled in Morris

Plains, New Jersey, where he sold cars with a man named Byron Matamora. Reynolds told

Detective Colbert that he resided in two other towns in New Jersey with Rose Lopez, who

was his girlfriend at the time. Detective Colbert again asked, “[n]othing else you want to

talk about?” Reynolds responded, “I guess not, no.”




                                             4
       On April 30, 2014, the same detectives interviewed Reynolds in Montgomery

County, Maryland. Reynolds immediately invoked his right to counsel. Notwithstanding

the invocation, Detective Colbert continued to interview Reynolds.3

                                 The Suppression Hearing

       On October 20, 2014, the Circuit Court for Montgomery County held a suppression

hearing to consider the statements Reynolds made during the April 14, 2014 and the April

30, 2014 interviews. Reynolds’s trial counsel argued that Reynolds repeatedly invoked his

right to remain silent in the April 14 interview, when he indicated that he had “nothing to

say” about the murder, and that his statements following the first invocation were

inadmissible because they were taken in violation of Miranda. Additionally, Reynolds

asserted that Detective Colbert acted in bad faith by continuing to question Reynolds after

the invocations, so the statements were inadmissible at trial for any purpose. The State

averred that Reynolds never unambiguously invoked his right to remain silent, and that

Detective Colbert did not act in bad faith. According to Detective Colbert, Reynolds “was

trying to get me to believe his spin on the story [that he was “Graham”], and it was my job

to try to get the facts out….”

       The suppression court ruled that Reynolds invoked his right to remain silent the first

time he stated that “[t]here’s nothing I have to say[]” about the murder. The court held that

a majority of the April 14 interview was in violation of Miranda, and therefore inadmissible



       Reynolds’s statements from the April 30 interview were not the subject of
       3

impeachment at trial.
                                             5
as substantive evidence. However, the court also determined that the statements elicited

during the April 14 interview were voluntary and thus, admissible under Harris4 and Hass5

for impeachment purposes, should Reynolds elect to testify at trial. Regarding the April

30 interview, the State maintained that even if the statements were obtained in violation of

Miranda, they were voluntarily made. The court ruled that the statements in the April 30

interview were involuntary and inadmissible, except for Reynolds’s response to pedigree

or booking questions.     Ultimately, the suppression court precluded the State from

introducing any statements after Reynolds’s Miranda invocation in its case-in-chief.

Before this Court, the State asserts that because Detective Colbert did not purposely violate

Miranda, and Reynolds’s statements were voluntary, the statements could be used for

impeachment purposes.

                                         The Trial

       Wesley’s daughter, Nickesha King (“Nickesha”), who was eleven years old at the

time of the murder, testified that while walking with her father outside of their apartment

on the evening of November 18, 2002, they were approached by two men dressed in black.

One man pulled Nickesha aside while the other man, who she identified as Reynolds,



       4
         In Harris v. New York, 401 U.S. 222, 91 S.Ct. 643 (1971), the Supreme Court held
that statements procured by law enforcement in violation of Miranda could be used for
impeachment purposes at trial.
       5
        The Supreme Court held in Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215 (1975)
that information obtained by officers after Miranda warnings is admissible for
impeachment purposes if an individual testifies inconsistently with the inculpatory
information.
                                             6
pinned King down and shot him. As King fell, the two men ran to a white van and drove

away with the door open. At trial, Nickesha identified Reynolds as the shooter, who she

recognized because he stayed with her family during the summer of 2002. Nickesha

testified that there was no doubt in her mind that Reynolds was the man who shot and killed

King.

        Detective James Drewry testified that he recovered a cell phone from the murder

scene, and eventually traced the cell phone number to a salon located in Brooklyn, New

York. The salon was operated by Simone Smith (“Smith”), who was Reynolds’s wife at

the time of the murder.

        Detective Scott Sube, an expert on cell mapping and network operations, also

testified for the State. Detective Sube presented a detailed chart that tracked which towers

registered pings from the subject cell phone on the day of the murder. The chart reflected

that pings from a call at 5:18 p.m. registered to cell towers in Manhattan, New York.

Subsequent pings from cell phone calls were registered with towers indicating that the

phone traveled south on the I-95 corridor from New York, through New Jersey and

Baltimore. Another chart displayed three cell phone calls being made between 10:10 p.m.

and 10:43 p.m.    The final call was made at 10:43 p.m., seventeen minutes before the

murder occurred, pinged off a Silver Spring cell tower located .54 of a mile from the scene

of the murder.




                                             7
       Pursuant to the suppression court’s ruling, no evidence relative to the April 14 or

April 30 interviews was offered in the State’s case-in-chief.6

       Reynolds elected to exercise his right to testify. During direct examination, he

testified regarding his personal and professional life. He was born in Jamaica, adopted by

a prominent family, and completed two years of college. Reynolds was sixteen years old

when he first met King, who was ten to twelve years his senior, while working for

Reynolds’s family business. Reynolds continued to stay in touch with King and his family

after they migrated to the United States. Reynolds met his wife, Smith, in Jamaica before

she moved to the United States in 1998. Reynolds followed Smith there a year later. The

couple had a baby born in 2000 and settled in New York. Reynolds acquired a fake New

York driver’s license in the name of Kevin Reynolds.

       Reynolds admitted that he used to deal drugs with King. He became involved in

selling drugs with King and his family in California. Reynolds helped King move to an

apartment in Maryland and bought him furniture. Reynolds would transport marijuana

from New York to Maryland in his minivan. Reynolds testified that he and King enjoyed

a positive relationship, and he held no animosity against King at the time of King’s death.

       Reynolds testified that on the day of King’s murder he was in Brooklyn, New York

and picked up his daughter from daycare at 6:00 p.m. According to Reynolds, he arrived


       6
        During trial, Reynolds and the State jointly stipulated that after Reynolds’s arrest
and subsequent interview on April 14, 2014, he stated that his name was Dennis Graham,
denied that he was Kevin Reynolds, denied that he had ever been in the State of Maryland,
and denied that he had a relationship with Simone Smith in 2002.
                                             8
home around 6:30 p.m., where a babysitter, Karlene Gill, was present. Smith returned

home shortly after 8:00 p.m. Reynolds testified that he had an appointment with Caroline

George to conduct an estimate for repairs on her home. He left his apartment between 9:30

p.m. and 10:00 p.m. and arrived at George’s house around 10:30 p.m. Reynolds left shortly

after 11:00 p.m. and arrived home around midnight, where he saw both Smith and Gill.

       Reynolds testified that around 1:00 a.m., the following morning, Smith began

receiving phone calls and Reynolds learned that King had been killed. Following King’s

murder, Reynolds quickly learned that he was a suspect. Four days later, Reynolds created

an alias, Dennis Graham, and ultimately left for Jamaica in December of 2002. Reynolds

returned to the United States various times over the next decade. Upon Reynolds’s return

to the country in April of 2014, Reynolds was apprehended for King’s murder.

       On cross-examination, the State addressed inconsistent statements Reynolds made

during the April 14 police interview, which were at odds with his trial testimony. The State

asked Reynolds:

       [STATE]: Didn’t you tell the police, that in November of 2002, you were in
       the Virgin Islands?
       [REYNOLDS]: Yes, I did.
       [STATE]: And didn’t you also tell the police that you had never been to
       Maryland more than passing through?
       [REYNOLDS]: Yes, I did.
       [STATE]: So, you didn’t tell them what you’re telling the jury today, that
       Wesley King was your great friend and you regularly saw him and shared an
       apartment with him?
       [DEFENSE COUNSEL]: Objection.

                                             9
THE COURT: Overruled.
[REYNOLDS]: No, I was uncertain the capacity [sic] of Dennis Graham at
that time.
[STATE]: So you were pretending to be somebody else to the police and
hoping you could convince them of that?
[REYNOLDS]: Right, I was hoping to preserve the identity of Dennis
Graham. So, I was answering those questions with that in mind.
                                   ****
[STATE]: And you told the police that when you first came to the United
States, that you worked selling cars with Byron Matamora (phonetic sp.),
correct?
[DEFENSE COUNSEL]: Objection
THE COURT: Overruled
[REYNOLDS]: Yes.
[STATE]: Now Byron Dwyer?
[REYNOLDS]: Correct.
[STATE]: Are there two Byrons?
[REYNOLDS]: No.
[STATE]: So, which is his correct last name?
[REYNOLDS]: His name is Dwyer.
[STATE]: And you didn’t work selling cars with him, correct?
[REYNOLDS]: I helped him when he was, when I came back to the States
in ‘03, and I was staying with him out in Jersey. I used to help him out,
selling cars.
[STATE]: And you also told the police that you were living with a girl named
Rose, correct?
[REYNOLDS]: Correct.
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[STATE]: And when asked what Rosa’s [sic] last name was, you said Lopez,
correct?


                                    10
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[REYNOLDS]: Correct.
[STATE]: Is Rose Lopez a real person?
[REYNOLDS]: Yes, she is.
[STATE]: Who is Rose Lopez?
[REYNOLDS]: She was a neighbor of Byron Dwyer that I used to see back
then.
[STATE]: And is it someone you’ve had a relationship with, or was that a
lie, too?
[REYNOLDS]: I, we had relationships, yes.
[STATE]: So, instead of telling the police about Caroline George, or Karlene
Gill, who could truly alibi you, you started naming Rose Lopez and Byron
Matamora, who isn’t even a real person?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[REYNOLDS]: Yes.
[STATE]: And just so we’re clear, you never said anything about Caroline
George or Karlene Gill?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
[REYNOLDS]: Like I said, at that time, I was preserving my identity as
Dennis Graham. So, I was answering in the capacity of Dennis Graham.
[STATE]: Because you were hoping the Dennis Graham cover would work
first, correct?
[REYNOLDS]: Correct.
[STATE]: And when the Dennis Graham cover fell through, and we realized
that you aren’t Dennis Graham, now you create the second cover, which is
the alibi, correct?
[REYNOLDS]: I did not create the second cover.
[STATE]: But you agree, you’ve never mentioned the alibi to the police?


                                    11
       [DEFENSE COUNSEL]: Objection. May we approach.
At the bench, Reynolds’s counsel moved for a mistrial, arguing that the State impermissibly

cross-examined Reynolds regarding details he did not disclose to the detectives, even

though Reynolds asserted his right to remain silent during the interview. The trial court

denied the motion, but gave an instruction to the jury limiting prior witness statements to

be considered only to aid the jury in determining the credibility of witness testimony.

       On January 13, 2015, a jury convicted Reynolds on all counts and the trial court

sentenced him on March 31, 2015. Thereafter, Reynolds noted a timely appeal to the Court

of Special Appeals.

                               The Court of Special Appeals

       Before the Court of Special Appeals, Reynolds challenged, inter alia, the trial

court’s decision to admit portions of his post-arrest statements and the denial of his motion

for mistrial. See Reynolds, 2017 WL 5171593, at *1 (querying “[d]id the trial court err in

permitting any portion of either custodial statement to be used at trial and in denying

Reynolds’s motion for a mistrial as a result of such use?”). Reynolds argued that his

request for a mistrial should have been granted, because the State cross-examined him

regarding his failure to disclose the identity of certain alibi witnesses during the April 14

interview. Id. at 11. Reynolds asserted that such questions constituted the use of silence

against him, and thus were violations of Miranda. Id. The State countered that it was not

using his silence against him, but rather, was impeaching him regarding the conflict

between his statements during the April 14 interview and his alibi testimony at trial. Id.


                                             12
       The Court of Special Appeals agreed with the State that the questions asked at trial

were “classic impeachment, relating to what [Reynolds] said during the April 14 interview

and how it differed from his trial testimony.” Id. (Emphasis in original). The Court of

Special Appeals noted that during Reynolds’s initial interview, he “claimed to be Dennis

Graham; denied knowing the victim; claimed to be in the Virgin Islands at the time of the

murder; claimed to have only ‘been through’ Maryland in the past; said he worked with

Byron Matamora; and stated that he was in a relationship with Rose Lopez at the time of

the murder.” Id. To the contrary, during Reynolds’s direct examination, he admitted that

he was Clement Reynolds; that he was married to Simone Smith at that time; that he was

actually in New York at the time of the murder; and that he never mentioned Caroline

George or Karlene Gill as part of his alibi. Id. The Court assessed that the State was

pointing out these discrepancies to contradict his in-court testimony, not to use his silence

against him. Id. Finding that the State’s use of Reynolds’s inconsistent testimony was not

error, the Court of Special Appeals affirmed his conviction. Reynolds filed a timely

petition for certiorari, asking us to consider whether his right to due process was violated

when the trial court allowed the State to cross-examine him regarding statements related to

his alibi defense that were elicited after he invoked Miranda.

                               STANDARD OF REVIEW

       “Subject to supervening constitutional mandates and the established rules of

evidence, evidentiary rulings on the scope of witness testimony at trial are largely within

the dominion of the trial judge[.]” Crosby v. State, 366 Md. 518, 526, 784 A.2d 1102, 1106


                                             13
(2001). “Generally, appellate courts review the denial of a motion for a mistrial under the

abuse of discretion standard[.]” Dillard v. State, 415 Md. 445, 454, 3 A.3d 403, 408 (2010).

We will not disturb the trial court’s ruling “unless there has been an abuse of discretion of

a character likely to have injured the complaining party.” Grandison v. State, 341 Md.

175, 243, 670 A.2d 398, 432 (1995). “[T]rial judges have wide discretion to admit or

exclude items of evidence....” Gauvin v. State, 411 Md. 698, 710, 985 A.2d 513, 520

(2009). Where the evidentiary ruling is a discretionary one, “a trial court’s ruling on the

admissibility of evidence is reviewed pursuant to the ‘abuse of discretion’ standard.”

Brown v. Daniel Realty Co., 409 Md. 565, 583, 976 A.2d 300, 310–11 (2009). However,

“[w]here a party complains that the trial judge’s action abridged a constitutional right,” this

Court’s review is de novo. Savage v. State, 455 Md. 138, 157, 166 A.3d 183, 194 (2017).

Although Reynolds alleges a due process violation of his Fifth and Fourteenth Amendment

rights, the alleged violation occurred as a result of the trial judge’s discretionary decision

to allow impeachment questions. We will conduct our own appraisal of Reynolds’s

constitutional arguments and review the trial judge’s admissibility determinations for an

abuse of discretion.

                                       DISCUSSION

       Although Reynolds’s claim rests upon constitutional rights as discussed in Miranda

and its progeny, we address the rights afforded by the Federal constitution, the Maryland

constitution, and Maryland common law. Reynolds claims that the trial court denied him

due process by permitting the State to question him about his failure to disclose an alibi


                                              14
defense after he invoked Miranda. Reynolds asserts that a reading of Miranda dictates that

an individual has a right to remain silent during a custodial interrogation. During the April

14 interview, when Reynolds told police officers “[t]here’s nothing I have to say[,]” he

avers that the State’s cross-examination regarding what he did not tell the police following

an invocation of his right to remain silence, constituted reversible legal error. The State

counters that even statements taken in violation of Miranda can be used to impeach a

witness’s prior inconsistent statement. Reynolds’s claim requires us to interpret and apply

Miranda and its progeny. As explained infra, an invocation of Miranda does not preclude

the State from impeaching a witness concerning prior inconsistent statements, even after a

suspect invokes his right to remain silent.

                               Constitutional Considerations

       The Federal and State constitutions unequivocally protect the right to remain silent

in the face of custodial interrogation by law enforcement. An individual’s due process

rights are the tenets of two foundational constitutional provisions: the Fourteenth and the

Fifth Amendments. The Due Process Clause to the Fourteenth Amendment provides that

no State shall “deprive any person of life, liberty, or property, without due process of

law[.]” U.S. Const. amend. XIV. Article 24 of the Maryland Declaration of Rights, a

corollary to the federal Due Process Clause, similarly provides that “[t]hat no man ought

to be taken or imprisoned or disseized of his freehold, liberties or privileges, or outlawed,

or exiled, or, in any manner, destroyed, or deprived of his life, liberty or property, but by

the judgment of his peers, or by the Law of the land.” Md. Const., Declaration of Rights,


                                              15
Art. 24. “The due process clause of Article 24 of the Maryland Declaration of Rights and

the Fourteenth Amendment to the [United States Constitution] have the same meaning; and

we have said that Supreme Court interpretations of the federal provision are authority for

the interpretation of Article 24.” Dep’t of Transp. v. Armacost, 299 Md. 392, 415–16, 474

A.2d 191, 203 (1984).

       The Fifth Amendment to the United States Constitution provides that “[n]o person

shall be... compelled in any criminal case to be a witness against himself, nor be deprived

of life, liberty, or property, without due process of law....” U.S. Const. amend. V. The

Fifth Amendment is applicable to the states through the Fourteenth Amendment. Malloy

v. Hogan, 378 U.S. 1, 84 S.Ct. 1489 (1964). Similarly, Article 22 of the Maryland

Constitution provides “no man ought to be compelled to give evidence against himself in

a criminal case.” Md. Const., Declaration of Rights, Art. 22. Article 22, with its federal

counterpart, the Fifth Amendment, provides a privilege against being compelled to be a

witness against oneself. Blum v. State, 94 Md. 375, 382–83, 51 A. 26, 28 (1902); Bass v.

State, 182 Md. 496, 500–01, 35 A.2d 155, 157 (1943); Adams v. State, 202 Md. 455, 460–

63, 97 A.2d 281, 283 (1953), rev’d on other grounds, 347 U.S. 179, 74 S.Ct. 442, (1954);

Brown v. State, 233 Md. 288, 292, 196 A.2d 614, 615 (1964); State v. Panagoulis, 253 Md.

699, 707, 253 A.2d 877, 881 (1969); Hof v. State, 337 Md. 581, 597, 655 A.2d 370, 378

(1995).

       The Supreme Court held in Miranda that statements obtained from defendants

during custodial interrogation or conditions that created similar circumstances, without the


                                            16
full warning of constitutional rights, and waiver of those rights, were inadmissible as

having been obtained in violation of the Fifth Amendment privilege against self-

incrimination. 384 U.S. at 478–79, 86 S.Ct. at 1630. For Miranda warnings to be required,

the defendant must be both in custody and subject to interrogation. Within the scope

of Miranda, “interrogation” applies “not only to express questioning, but also to any words

or actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating

response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682,

1689–90 (1980) (internal footnotes omitted). These well-known Miranda warnings require

an individual to be informed that “he has the right to remain silent, that anything he says

can be used against him in a court of law, that he has the right to the presence of an attorney,

and that if he cannot afford an attorney one will be appointed for him prior to any

questioning if he so desires.” Miranda, 384 U.S. at 479, 86 S.Ct. at 1630. The warnings

act as procedural safeguards against compelled self-incrimination. Once an individual is

apprised of these warnings, the individual has the right to invoke the constitutional

safeguards or waive them and engage with law enforcement. An invocation of the right to

remain silent must be unequivocal and unambiguous for the police to terminate the

interrogation. Williams v. State, 445 Md. 452, 470, 128 A.3d 30, 40 (2015). However,

“[a]ny and all requests by the person being questioned to exercise his or her Miranda right

to silence must be ‘scrupulously honored’ by police, and have the effect of ‘cut[ting] off

questioning.’” Williams v. State, 219 Md. App. 295, 316, 100 A.3d 1208, 1220 (2014),

aff’d, 445 Md. 452, 128 A.3d 30 (2015) (quoting Michigan v. Mosley, 423 U.S. 96, 103,

                                              17
96 S.Ct. 321, 326 (1975)). See also Davis v. United States, 512 U.S. 452, 458–59, 114

S.Ct. 2350, 2355 (1994) (holding that where an individual unambiguously invokes the right

to remain silent, there must be immediate cessation of all questioning). If an individual

invokes the right to remain silent, all questioning must cease. Crosby, 366 Md. at 528–29,

784 A.2d at 1108.

       In the event that officers continue to question an individual, any evidence flowing

therefrom is illegally obtained and thus subject to exclusion as fruit of the unlawful

conduct. Miles v. State, 365 Md. 488, 521, 781 A.2d 787, 806 (2001). “The rule is

calculated to prevent, not to repair[]” an erosion of constitutional rights by precluding the

State from using illegally obtained evidence. Brown v. Illinois, 422 U.S. 590, 599–600, 95

S.Ct. 2254, 2260 (1975). “[T]he exclusionary rule is perhaps the most effective and

practical means of curbing lawless police[.]” Williams v. State, 375 Md. 404, 419, 825

A.2d 1078, 1086 (2003) (internal citations omitted). The caveat to generally excluding

statements in violation of Miranda allows the evidence to be used for impeachment

purposes. Miranda, 384 U.S. at 477, 86 S.Ct. at 1629. See Harris, 401 U.S. at 226, 91 S.

Ct. at 646 (holding that statements taken in violation of Miranda could be used to impeach

Harris’s inconsistent trial testimony); Hass, 420 U.S. at 722, 95 S.Ct. at 1221 (allowing

information obtained after Miranda warnings were given to be used for impeachment

purposes).   Allowing statements elicited in violation of Miranda for impeachment

purposes, but not as substantive evidence, strikes a “pragmatic balance between two

competing public policies—the exclusionary rule precluding the use of confessions


                                             18
obtained in violation of Miranda, on the one hand, and not giving defendants a free ride to

commit perjury[.]” Wright v. State, 349 Md. 334, 348, 708 A.2d 316, 323 (1998).

       However, the Supreme Court has made clear that statements elicited during police

custody and interrogation are inadmissible if there is coercive police action similar to that

in Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515 (1986) or Arizona v. Fulminante,

499 U.S. 279, 111 S.Ct. 1246 (1991). In Connelly, the Supreme Court determined that

where the defendant confessed to a murder, but it was later revealed that he “was following

‘the voice of God[,]’” the confession was involuntary. 479 U.S. at 161, 107 S.Ct. at 518.

Likewise, the Court held in Fulminante, where the defendant confessed to an undercover

agent in prison under the guise of receiving protection from prison violence, the confession

was also coerced. 499 U.S. at 287, 111 S.Ct. at 1252. Supreme Court precedent clearly

dictates that statements taken in violation of Miranda can be used to impeach an

individual’s trial testimony, so long as the statements were elicited voluntarily.

       An individual’s post-arrest silence is also protected by Miranda and generally

cannot be admitted as substantive evidence at trial. The Supreme Court articulated this

concept in Doyle v. Ohio, 426 U.S. 610, 617–18, 96 S.Ct. 2240, 2244–45 (1976), opining

that following receipt of Miranda warnings, “post-arrest silence is insolubly ambiguous

because of what the State is required to advise the person arrested.” In Doyle, the Supreme

Court explored the obstacles that post-arrest silence can pose.         Primarily, when an

individual is silent following an arrest, it is ambiguous to the finder of fact whether the

silence is a result of acquiescence or disagreement to questioning. “Failure to contest an


                                             19
assertion, however, is considered evidence of acquiescence only if it would have been

natural under the circumstances to object to the assertion in question.” United States v.

Hale, 422 U.S. 171, 176, 95 S.Ct. 2133, 2136 (1975). Notwithstanding an accusation or

assertion, in the face of contemporaneous statements, Miranda warnings carry an implicit

assurance that silence will not be penalized. Doyle, 426 U.S. at 618, 96 S.Ct. at 2245.

Otherwise, the introduction of an individual’s invocation of the constitutional right to

silence, “would be fundamentally unfair and a deprivation of due process to allow the

arrested person’s silence to be used to impeach an explanation subsequently offered at

trial.” Id. However, “Doyle does not apply to cross-examination that merely inquires into

prior inconsistent statements. Such questioning makes no unfair use of silence because a

defendant who voluntarily speaks after receiving Miranda warnings has not been induced

to remain silent.” Anderson v. Charles, 447 U.S. 404, 408, 100 S.Ct. 2180, 2182 (1980)

(per curiam).

       Supreme Court precedent on post-Miranda silence “does not force any state court

to allow impeachment[.] Jenkins v. Anderson, 447 U.S. 231, 240, 100 S.Ct. 2124, 2130

(1980). The principles enunciated by the Supreme Court should be regarded as the

minimum of constitutionally afforded protections, where each State may expand

Miranda’s constitutional rights as it deems fit. With the tenets of Miranda and its progeny,

we now assess whether Reynolds’s statements after invoking Miranda should be subject

to the exclusionary rule.




                                            20
   Post-Arrest Silence: Permissible Uses of Inconsistent Statements for Impeachment

                                          Purposes

       Case law developed in Maryland and in the United States Supreme Court following

Miranda requires us to address the timeline of the statements elicited by detectives when

Reynolds invoked the right to remain silent.         Undisputedly, the April 14 interview

constituted a custodial interrogation by the detectives, thus prompting the need for Miranda

warnings. At issue is whether Reynolds’s indication that he desired to remain silent was

sufficient to invoke Miranda’s protections. Although disputed by the State, the suppression

court found that statements elicited after Reynolds indicated that there was “nothing I have

to say[,]” were taken in violation of Miranda. The Court of Special Appeals concurred

that although Reynolds’s statements were made voluntarily, the continued questioning

violated Miranda. Reynolds, 2017 WL 5171593, at *8. The detectives violated Miranda

by continuing to question Reynolds after multiple indications that he desired to cease the

interrogation. The detectives elicited statements related to his location on the night of

King’s murder and the identity of persons who could have potentially verified his

whereabouts.    Detective Colbert asked Reynolds which country he was in during

November of 2002, to which Reynolds responded that he was in the Virgin Islands.

Reynolds also told detectives about two individuals, Byron Matamora and Rose Lopez,

who were affiliated with Reynolds at the time. Where the suppression court rendered a

reasonable factual determination that Reynolds’s declarative statement was sufficient to

invoke his right to remain silent, we decline to disturb that finding.


                                             21
       At trial, Reynolds testified on direct examination that he was actually in New York

on the night of King’s murder and that two witnesses, Caroline George and Karlene Gill,

could serve as his alibi. On cross-examination, the State inquired “[s]o, instead of telling

the police about Caroline George, or Karlene Gill, who could truly alibi you, you started

naming Rose Lopez and Byron Matamora, who isn’t even a real person?” Reynolds’s

objection to this question was overruled. The State continued, “just so we’re clear, you

never said anything about Caroline George or Karlene Gill?” Reynolds’s counsel again

objected, approached the bench, and moved for a mistrial, which was ultimately denied.

Reynolds asserts that he omitted information about his alibi from police officers because

he was exercising his right to remain silent pursuant to Miranda, and that the trial court’s

admission of his post-Miranda silence, was an impermissible infringement of Reynolds’s

right to due process.

       Reynolds argues that Maryland liberally construes the right to be free from

compulsory self-incrimination, and thus, this Court should evaluate Reynolds’s claim

through the lens of post-arrest, post-Miranda silence. At issue is whether Reynolds’s

failure to apprise officers of the alibi he introduced during trial constituted silence. We

have examined silence introduced against a criminal defendant on multiple occasions.

Before this Court and the Court of Special Appeals, Reynolds relied on our decision in

Grier, where we concluded that “[e]vidence of post-arrest silence, after Miranda warnings

are given, is inadmissible for any purpose, including impeachment.” Grier v. State, 351

Md. 241, 258, 718 A.2d 211, 219 (1998) (citing Doyle, 426 U.S. at 619, 96 S.Ct. at 2245


                                            22
(1976)). The petitioner in Grier was arrested for forcibly stealing another’s backpack and

was charged with attempted robbery with a deadly weapon, in violation of Article 27, §

488 of the Maryland Code (1957, 1996 Repl. Vol., 1997 Supp.); statutory maiming, in

violation of Article 27, § 3851 of the Maryland Code (1957, 1992 Repl. Vol.); and other

related offenses. Grier, 351 Md. at 245, 718 A.2d at 213. During the direct examination

of the arresting officer, the State inquired about whether Grier offered any explanation for

the crime prior to the arrest, to which the arresting officer indicated that Grier did not. Id.

at 248, 718 A.2d at 215. We rejected the State’s proposition that a defendant’s failure to

come forward and tell the police his version of events was admissible as substantive

evidence of guilt on the grounds that such silence was not probative. Id. at 255, 718 A.2d

at 218. The Court rationalized that failure to speak up in the presence of police could be a

result of numerous factors, thus, the evidence of post-arrest silence is more prejudicial than

probative and generally should not be admitted. Id. at 254–55, 718 A.2d at 218.

       We reiterated the principle again in reference to post-Miranda silence in Kosh v.

State, 382 Md. 218, 227, 854 A.2d 1259, 1265 (2004) (explaining “silence is evidence of

dubious value that is usually inadmissible under either Maryland Rule 5-402 or 5-403[]”)

(footnote omitted); Lupfer v. State, 420 Md. 111, 132, 21 A.3d 1080, 1092 (2011)

(reasoning “[e]vidence of post-arrest silence, after Miranda warnings are given, is

inadmissible[]”) (internal citations and quotations omitted); Coleman v. State, 434 Md.

320, 346, 75 A.3d 916, 931 (2013) (reversing a criminal conviction when trial counsel

failed to object because “Coleman’s post-Miranda silence ‘so upset the adversarial balance


                                              23
between defense and prosecution that the trial was unfair and the verdict rendered

suspect.’”). Cf. Younie v. State, 272 Md. 233, 244, 322 A.2d 211, 217 (1974) (concluding

“[s]ilence in the context of a custodial inquisition is presumed to be an exercise of the

privilege against self-incrimination from which no legal penalty can flow[.]”). The

Supreme Court and our precedent is clear, evidence of a criminal defendant’s post-Miranda

silence cannot be introduced at trial.

       However, Reynolds asserts that making statements to the police, invoking the right

to remain silent, testifying at trial, and having his silence used against him for impeachment

purposes, is a matter of first impression for this Court. Reynolds argues that this scenario

is factually distinguishable from our other decisions analyzing post-arrest, post-Miranda

silence, and encourages this Court to follow the analysis in United States v. Caruto, 532

F.3d 822 (9th Cir. 2008). In Caruto, the United States Court of Appeals for the Ninth

Circuit held that cross-examination on the discrepancies between post-Miranda omissions

and in-trial testimony is impermissible because it engenders meaning from constitutionally

protected silence. Id. at 831. Caruto was arrested with seventy-five pounds of cocaine in

her vehicle. Id. at 824. Caruto was advised of her Miranda rights and agreed to make a

statement. Id. However, five to seven minutes into the interview, she invoked her right to

counsel, thereby cutting her statement short. Id. at 824. All questioning ceased, and Caruto

made no other statements. Id. Portions of her statement were memorialized as handwritten

notes taken by one of the interrogating officers. Id.




                                             24
       At trial, the interrogating officer was asked, “[w]hat did she tell you about the

truck?” Id. The officer explained that Caruto lent the vehicle to her friends in Mexico

three to four weeks prior, and the vehicle was returned on the same day she drove to Los

Angeles. Id. Caruto testified inconsistently with the officers’ testimony that her friend,

Jimenez, was interested in purchasing the truck, and asked to take it to a mechanic to “try

it[,]” and upon returning from the mechanic Jimenez offered to buy it. Id. at 825. Jimenez

was to pay her $1,000 immediately and $1,000 once Caruto drove the truck to Los Angeles.

Id. During closing arguments the prosecutor argued that Caruto did not tell the agents that

she lent the truck to Jimenez, did not tell the agents that Jimenez gave her the truck, did

not provide the agents with Jimenez’s phone number, and did not tell the agents she was

selling the truck. Id. at 826. Relying on Doyle, the Caruto Court held that where “it is a

defendant’s invocation of her Miranda rights that results in the omitted facts that create the

difference between the two descriptions, cross-examination based on those omissions

draws meaning from the defendant’s protected silence in a manner not permitted by

Doyle.”   Id. at 831.    Factually distinguishable from Caruto, inter alia, is that the

prosecution argued that Caruto failed to give officers pertinent information, unlike here

where Reynolds told the officers facts that were inconsistent with his trial testimony.

Missing from Reynolds’s reliance on Caruto is a recognition of the distinction between

silence and using affirmative inconsistent statements for impeachment.

       The Caruto Court also considered the Supreme Court’s rationale in Anderson v.

Charles, 447 U.S. at 404, 100 S.Ct. 2180. Charles, the defendant, was arrested while


                                             25
driving a stolen car, and charged with murdering the vehicle’s owner. Id. Charles was

given Miranda warnings and then asked about the stolen vehicle. Id. at 405, 100 S.Ct.

2180. Charles told the police that he stole the car in Ann Arbor, Michigan, two miles from

a bus station. Id. At trial, the arresting officer testified to the same facts Charles conveyed

during the interrogation. Id. Later, Charles took the stand and testified that he took the

vehicle from a parking lot next to the bus station, inconsistent with his statement that he

took it from two miles away from the bus station. Id. On cross-examination, the State

asked Charles, “[d]on't you think it’s rather odd that if it were the truth that you didn’t come

forward and tell anybody at the time you were arrested, where you got that car?” Id. at

406, 100 S.Ct. 2181.      In light of Doyle, the Court reasoned that the State’s cross-

examination was proper because “[s]uch questioning makes no unfair use of silence

because a defendant who voluntarily speaks after receiving Miranda warnings has not been

induced to remain silent. As to the subject matter of his statements, the defendant has not

remained silent at all.” In the case at bar, Reynolds similarly testified inconsistently about

the underlying subject of whom he saw on the night of King’s murder. Like the questions

posed towards Charles “were not designed to draw meaning from silence, but to elicit an

explanation for a prior inconsistent statement[,]” the questions regarding Reynolds’s alibi

were not pointed at highlighting his omissions from law enforcement. Id. at 409, 100 S.Ct.

at 2182. Rather, the State’s questions referred to Reynolds’s prior inconsistent statements.

       Consistent with the Supreme Court’s determination in Harris and Hass, a

defendant’s voluntary and trustworthy statements obtained in violation of Miranda that are


                                              26
inconsistent with the defendant’s direct examination testimony, can be used for

impeachment. Reynolds argues that Miranda invoked silence cannot be used against a

defendant even for impeachment purposes. In contrast, the State avers that Reynolds did

not simply omit his alibi testimony by opting to remain silent. Rather, his statements to

detectives and testimony at trial were inconsistent, and accordingly, could be used by the

State to impeach his credibility. In support of its argument, the State relies on United States

Supreme Court precedent including Harris, 401 U.S. at 222, 91 S.Ct. at 643 and Hass, 420

U.S. at 714, 95 S.Ct. at 1215. Both Hass and Harris certainly stand for the proposition that

an individual’s post-Miranda statements can be used at trial for impeachment purposes.

       Harris was charged in “a two-count indictment with twice selling heroin to an

undercover police officer.” Harris, 401 U.S. at 222-23, 91 S.Ct. at 644. Testifying in his

own defense, Harris denied selling the undercover officer illegal drugs, and claimed that

the substance sold to the undercover officer was baking powder. Id. On cross-examination,

the State asked about statements he made immediately following his arrest that

contradicted his direct testimony. Id. at 223, 91 S. Ct. at 644. Harris claimed that he could

not remember any of his statements. Id. The Supreme Court held that Harris’ voluntary

statement, although procured in violation of Miranda, was properly used to impeach him

when he testified inconsistently with his prior statement at trial. Id. at 226, 91 S.Ct. at 646.

       Similarly, in Hass, the Court confirmed that the deterrence factor provided by the

exclusionary rule is sufficiently maintained “when the evidence in question is made

unavailable to the prosecution in its case in chief.” 420 U.S. at 722, 95 S.Ct. at 1221. Hass


                                              27
was involved in the theft of two bicycles. Id. at 715, 95 S.Ct. at 1217. After Hass was

apprehended and placed under arrest, officers gave Hass the prescribed Miranda warnings.

Id. Hass immediately admitted to taking the bicycles, but once placed in a patrol car he

indicated he wanted to contact his attorney. Id. Hass then pointed out where one of the

stolen bicycles was hidden in a nearby bush. Id. at 716, 95 S.Ct. at 1218. Hass testified at

trial that he did not know the bicycle was stolen. Id. As a rebuttal witness, the State called

the arresting officer who testified that Hass told officers where the bikes were stolen. Id.

at 717, 95 S.Ct. at 1218. Applying Harris, the Court reiterated that a reading of Miranda

does not require that evidence inadmissible against Hass in the prosecution’s case-in-chief

be barred for all purposes, always provided that “the trustworthiness of the evidence

satisfies legal standards.” Id. at 722, 95 S.Ct. at 1221 (internal citations and quotations

omitted). “[T]he impeaching material would provide valuable aid to the jury in assessing

the defendant’s credibility; again, ‘the benefits of this process should not be lost[.]’” Id.

       Reynolds argues that despite the lengthy precedent built around Harris and Hass,

these principles should not apply. Reynolds argues that Harris is distinguishable because

Harris only considered the use of statements that the petitioner in Harris actually made to

the police, not silence. Indeed, silence was not at issue in Harris. However, despite

Reynolds’s contention, the issue before this Court is not one of custodial silence. To the

contrary, Reynolds provided detectives details about his personal life, which ran contrary

to his trial testimony. These affirmative statements were then used for “classic

impeachment” purposes. Reynolds, 2017 WL 5171593, at *11.                For that reason, the


                                              28
underlying application of a prior inconsistent statement in Harris is equally employable

here. Much like Harris who provided police officers distinctly inconsistent statements from

his trial testimony, Reynolds told the detectives that he was in the Virgin Islands at the time

of King’s murder. At trial, he testified that he was in New York. The identities of his two

alibi witnesses who were also in New York, were necessarily related to the inconsistent

statements about where he was on the night of the murder. The holding from Harris, that

prior inconsistent statements that would otherwise be Miranda violative statements can be

used to impeach a witness’s in court testimony, is on par with the factual circumstances in

this case.

       For the same reasons Reynolds’s claim that Harris is incongruous to the facts of

this case fails, his criticisms of Hass should also fail. Reynolds argues that Hass is

incongruous because Hass, like Harris, was impeached by what he told the police, not by

what he failed to tell the police. Reynolds also asserts that Hass’s testimony directly

contradicted testimony that he told police, and alludes that Reynolds, somehow, did not.

As Reynolds properly identifies, the Hass Court relied directly on Harris, which we follow

here. Additionally, Reynolds’s statements to the detectives about his whereabouts on the

night of King’s murder are directly inconsistent with the testimony he gave at trial.

Miranda’s premise as reiterated in both Hass and Harris, allows prior inconsistent

statements to be used directly for impeachment purposes. Therefore, it was not error for

the State to inquire on cross-examination about the inconsistent statements Reynolds made

to police officers after he invoked Miranda.


                                              29
                                    CONCLUSION

      We conclude that it was not error for the trial court to permit the State to inquire

about prior inconsistent statements made to detectives after Reynolds invoked Miranda.

The State’s use of Reynolds’s prior inconsistent statements about what he did not tell the

State were not post-arrest silence, but rather affirmative statements about his alibi. In

accordance with Miranda and its progeny, it was appropriate for the State to impeach

Reynolds about this testimony on cross-examination.

                                                JUDGMENT OF THE COURT OF
                                                SPECIAL APPEALS IS AFFIRMED.
                                                COSTS   TO   BE    PAID  BY
                                                PETITIONER.




                                           30
