Gorge v. State

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In the Circu it Court for B altimore C ounty No. 02CR0531 IN THE COURT OF APPEALS OF MARYLAND No. 54 September Term, 2004 ______________________________________ JASON HARRY GORGE v. STATE OF MARYLAND ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ______________________________________ Opinion by Greene, J. Cathell and Harrell, JJ., Dissent ______________________________________ Filed: May 10, 2005 We are asked to determine whether a sentence of life without the possibility of p arole may be imposed if the record does not reflect that the State gave timely written notice to the defendant of the State s intent to seek that sentence. Further, w e are asked to decide if M r. Gorge made voluntary statements to the police while hospitalized and recovering from serious self-inflicted wounds. On November 12-14, 2002, Jason Harry Gorge was tried by a jury in the Circuit Court for Baltimore County and convicted of one count of first-degree felony-murder, one count of premeditated murder, and one count of ro bbery. On March 3, 2003, Mr. Gorge was sentenced to life without the possibility of parole for the first-degree murder conviction and to fifteen years for the robbery. Mr. Go rge appealed and the Court of Special A ppeals aff irmed the c ircuit court judgment. On August 25, 2004, we granted certiora ri. Gorg e v. State , 382 Md. 68 7, 856 A.2d 72 3 (2004). We hold that the court may not impose a sentence of life without the possibility of parole unless the record satisfactorily reveals that the statutory conditions were satisfied, including giving w ritten notice to the defendant at least 30 days before the trial. We also hold th at Mr. G orge s s tateme nts to the police w ere volu ntarily ma de. FACTS In October, 2001, M r. Gorge and his girlfriend, Dorothy Brooks ( Dorry or Ms. Brooks ), were living in his car. Bo th were ad dicted to heroin and cocaine. On October 27, 2001, Mr. Gorge a nd Ms. B rooks ove rdosed, attem pting to commit su icide. Their a ttempts failed and on the following morning, they both aw oke extrem ely drug sick, in the words of Ms. Brooks. According to Ms. Brooks, Mr. Gorge told her he was go ing to go to h is mother s house to ask for money so they could get well. Ms. Brooks explained that getting well meant getting more drugs so that they would not continue to feel the pain of drug sickness. Ms. Brooks testified that she fell asleep and when she woke up, Mr. Gorge was back with a van. She got in the van with Mr. Gorge and they drove to the east side of Baltimore to purchase drugs. Ms. Brooks testified that Mr. Gorge told her that he borrowed the van from his grandfather. Eventually, they drove to a hotel in Pennsylvania and consumed more drugs. Ms. Brooks testified that while they were at the hotel, Mr. Gorge confessed to her that he hit his grandfather over the head, punched him, and strangled him. Ms. Brooks also testified that after Mr. Gorge confessed to her, he took an overdose of sleepin g pills. Ms. Brooks f led and ca lled her mo ther and ask ed some people sh e saw to call the police. Mr. Gorge came after her, but eventually returned to the hotel room, where he attempted to kill himself b y cutting his throat and wrists and by stabbing himself seventeen times. The police apprehended him on October 30, 2001 , and took h im to a hosp ital in Penns ylvania fo r emerg ency surg ery. On October 31, 2001, police officers in Baltimore found the bod y of Mr. Gorge s grandfather, Harry Gorge, Jr., at his home. The medical examiner determined the cause of death to be asph yxiation. The Suppression Hearing On May 29, 20 02, the Circuit Court h eld a hearin g on M r. Gorge s M otion to -2- Suppress. The State called Chief Wesley M. Haverkamp, who was on guard duty at the hospital in Pennsylvania between October 30 and Novemb er 2, working the midnight s hift. He testified that Mr. Gorge was in and out of consciousness and that he seemed to be in pain. Officer Lawrence Burger, Jr., was on guard duty at the hospital from 8:00 a.m. until 5:00 p.m. on Novem ber 1. He described Mr. Gorge s injuries, noting that h e had stitche s on his neck from ear to ear, scratches and marks on his arms and legs, and puncture wounds. Officer Burger testified that Mr. Gorge was receiving medication in a pill form and through an IV, though he did not know what medication they were giving him. Officer Burger also testified that Mr. Gorge was restrained with shackles on one ankle and straps on both wrists. Officer Burger was p resent when tw o Baltimore County police officers arrived to interview Mr. G orge. Detective Kurt Wilhelm and D etective Alan M eyer, from Baltimore County, arrived at the hospital at 2:00 p.m. on N ovember 1 . Detective Wilhelm testified that prior to November 1, he had called the nursing staff severa l times to be updated on Mr. Gorge s condition. He also testified that on the day of the interview with M r. Gorge, he contacted the police departme nt in Penn sylvania and they info rmed him that Mr. Gorge was conscious and could be interviewed. Detective W ilhelm did not inquire abou t any medications that Mr. Gorge may have been taking, prior to interviewing him. Detective Wilhelm testified that when he and Detective M eyer arrived at the hospital, Mr. Gorge w as awak e and app eared to unders tand w ho they w ere. Detective W ilhelm told -3- Mr. Gorge that they wanted to talk with him about what happene d in Baltimore County, and according to Detective Wilhe lm, Mr. G orge agree d to talk with them. De tective Wilh elm described Mr. Gorge s demeanor as calm, alert, quiet, and subdued. Detective Wilhelm read Mr. Gorge h is rights 1 and he initialed each right and signed the form. According to Detective Wilhelm, Mr. Go rge did no t want to write a statement, but he agreed to respond to questions. Detective Wilhelm s testimony continued as follows: The first question I asked was, How are you feeling? His answer was, Bad . I asked him, Do you want to talk to us about wha t happene d in Baltimore? He said, Yes. I asked him, Are you up to it? He responded, Yes. I said, Can you remember what happened this weekend? He answered, I guess so. I said, What happened at your grandfather s house? To this question , he didn t respond verbally. He just lowered his head and shook his head no. I said, how did you get your grandfather s van? He responded, I took it. I asked him, Did you hit your grandfather? He answered, Yes. The next question was, Why did you hit him? He said, Yes, I don t know. I asked him, Were you and your grandfather fighting? He answered, A little bit. Next question was, Why did you go over to your grandfather s house? To get money from him? He answ ered, Y eah. Next question is, Did he give you any money? He answered, No, he wouldn t give me any. The following question is, Did you get into an argument after he would not giv e you any m oney? He said , Yea h. Next question is, what happened after that? He responded, W e started figh ting. Que stion: Did you hit your grandfather in the head with a bottle? Answer: Yes. Question: What kind of bottle? Answer: A drink bottle. Question : How m any times did you hit him with the bottle? Answer: Twice. Question: Then what happened? The bottle broke . Question: What happened to your grandfather when the bottle br oke? A nswe r: He pr etty much went o ut. Detective Wilhelm continued to tell of his interview with Mr. Gorge and testified that Mr. Gorge admitted to taking money, a van, and a shotgun f rom his grandfather. He also told the 1 Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). -4- detective that he had tried to clean up after the fight and that he was not high but sick when he went to his grandfa ther s house. After Detective Wilhelm finished his questioning of M r. Gorge, Detective Meyer asked him a few questions about the clean-up and the location of the bod y. Detective Wilhelm testified that at the conclusion of the questioning, which lasted almost two hours, Mr. Gorge read the statement and signed it, indicating that he understood what it s aid and that it wa s given volunt arily. Defense counsel did n ot ca ll any witnesses, but did admit Mr. Gorge s medical records into evidence for the purpose of showing that he was hospitalized with very serious injuries. The State stipulated that the records could be admitted, but the State did not agree as to the interpretation of the records, arguing that the interpretation w ould require expert te stimony. Defense counsel argued that Mr. Gorge s serious medical condition prevented him from making a voluntary statement to the police. She also argued that the police should have determined if Mr. Gorge was under the influence of any medication before interrogating him. The trial judge denied the motion to suppress and stated: I am satisfied that the Miranda warnings were given to the Defend ant in scrupulous detail. Detective Wilhelm couldn t have done anything more. He read each right to the Defendant individually. Then he had the Defendant go back and read each right and initial each righ t. I don t see any requirement for any type of clearance from a physician . The D efend ant wa s consc ious. I found the testimony of Detective W ilhelm to be very credible. He indicated that the Defendan t was alert. There were no promises made, no threats made, no inducements. The Defendant made the statement voluntarily. The substance of the questions and the answers in and of themselves to me demo nstrate th at the D efend ant wa s perfe ctly lucid. * * * -5- He is asked in the beginning, how are you feeling. Bad. Next question, do you want to talk to us about what happened in Baltimore. Yes, he does. Are you up to it. Yes. I interpret that question to be a broad ly worded question, are you fit enough to answer these questions. So, I think that the detective asked an appropriate number of question s in the begin ning. The Defend ant certainly had every opportunity to say no, I don t want to answ er any questions. I don t feel well enough to answer these questions. I am sure the Defendant was feeling bad. Having heard the nature and extent of his injuries, I am sure he was feeling not so good, but feeling bad does not mean you can t make a voluntary statement. Being in the hospital does not mean you can t make a volunt ary statem ent. Now, quite fran kly, in evaluating the evidence I was concerned about the fact that the Defendant was in essence confined to the bed and couldn t leave the bed. I think that the restraints there were of little consequence and didn t have any effect on the Defendant given his medical condition. From what I have heard, he was not going anywhere at all anyway. He was in bed. It wasn t like these restraints that were put on him by the hospital personnel in any way or were to influence him to make the statement [sic]. So, for all the reasons the Court h as stated , the mo tion is de nied. The Sentencing On November 12-14, 2002, Mr. Gorge was tried by jury and convicted of one count of first-degree felony-murder, one count of premeditated murder, and one count of ro bbery. On March 3, 2003, the Court denied a motion for new trial and then held a sentencing hearing, which began with defense counsel questioning whether the State filed a written notice of an intention to seek a life sentence without the possibility of parole. Defense counsel stated that she knew early on that the State was going to seek that sentence. She also stated, however, that neither she, nor the State could locate a copy of any written notice to that effect in their files. Defense counsel stated that the Defense had been put on notice -6- some time ago prior to the trial that the State was going to be seeking this sentence at the conclusion of the trial. From what I remember, I thought the State did hand up a paper or certainly made it clear on the record they were seeking this sentence. Th e circuit court judge noted that after the trial, there had been d iscussion of a pre-sentence investigation because the State was seeking life without the possibility of parole. Defense counsel conclu ded he r argum ent by statin g, I will subm it to the Court. We certainly were given oral notice prior to today. I will defer to the Court and as to the record as to whether or not our submissions that we have h ad prio r notice s atisfies th e requir emen t. The State has f iled w ritten notice in written f orm toda y. * * * Your honor, again, as I said before, the Defense certainly had oral notice thirty days prior to even the June trial d ate that we orig inally had, that the State was going to seek the sentence that it was see king. Ag ain, Your H onor, we will submit that we ha d oral notice . Whethe r or not that satisf ies the require ments of the statute is a matter for this Court to decide or perhaps for the appellate court to decide . The State relied on an October 16, 2002 letter in which it made a plea offer to Mr. Gorge. The letter also contained a statement that the State would argue for a sentence of life without the possibility of parole, pursuant to the Notice that has been f iled. The October 16 letter was no t received th irty days before trial, but it made reference to a notice that allegedly had been filed time ly. The Court reviewed the docket entries and informed the parties that nothing in dicated that a ny notice had been filed . The Co urt conclud ed that it would sentence Mr. Gorge on the basis that the Defendant did have notice. -7- The Court sentenced Mr. Gorge to life without the possibility of parole for the first murder conviction and to fifteen years for the robbery. On appeal, the Court of Special Appeals affirmed the circuit court judgment and stated: We agree with Judge Dugan s analysis. There is no indication in the record of this case, that when a ppellant was sentenced on March 3, 2003, he did not have at least 30 da ys notice that the State was seeking a sentence of life without the possibility of parole. Our rejection of app ellant s written notice argument shall not pre judice [his] rig ht to assert [this claim] in a po stconvic tion pro ceedin g, shou ld he de sire to do so. Mosle y v. State , 378 Md. 548, 573 (2003 ). On August 25, 2004, we granted Mr. George s petition for writ of c ertiorar i. STANDARD OF REVIEW The first issue raised in this case, whether Mr. Gorge may be sentenced to life without the possibility of parole without having received w ritten notice of the State s intention to pursue that sentence, is purely a matter of law, involving the interpretation of a statute. As such, our review is de novo. Salamon v. Progressive, 379 Md. 301, 307, 841 A.2d 858, 862 (2004). The second issue, whether M r. Gorge made a voluntary confession to the police, is a mixed question of law and fa ct. Winder v. State, 362 Md. 275, 310, 765 A.2d 97, 116 (2001). As a result, we undertake a de novo review o f the trial judge 's ultimate determination on the issue of voluntariness. Our review of the circuit court's denial of appellan t's motion to suppress is limited to the record of the suppression hearing . Winder, 362 Md. at 310- 11, 765 A.2d a t 116. We note that while we are required to make our own independent assessment from the record as to whether the statement is voluntary, we accept -8- the trial judge's factual findings as correct unless they are clearly erroneous . . . . Hoey v. State, 311 Md. 47 3, 484, 536 A.2d 622, 627 (1988 ). DISCUSSION The Sentence Mr. Gorge argues that the circuit court should not have sentenced him to life without the possibility of parole b ecause the record do es not reflec t that the State g ave him tim ely written notice, as required by statute. The State asserts that Mr. Gorge received oral notice well in advanc e of the trial da te (a fact that h e conced es) and that s uch notice satisfies the statute. The State argues, in the alternative, that Mr. Gorge waived his right to receive written notice because his counsel agreed at the sentencing hearing that she had actual notice before trial that the State would seek the sentence of life without the possibility of parole. We agree with Mr. Gorge. As an initial matter, we hold that Mr. Gorge did not waive his right to appeal the question of whether the notice given by the State satisf ied the statute. T he State argues that defense counsel acquiesced in the trial court s ruling and, a s a result, has no basis to appeal from that ruling. While defense counsel admitted to having actual notice of the proposed sentence and stated that she would submit to the Court, she also stated [w]hether or not that satisfies the requirements of the statute is a matter for this Court to decide or perhaps for the appellate court to decide. We believe that was sufficient to satisfy Md. Rule 8-131, providing in pertinent p art that [o]rdinarily, the appellate court will not decide any other -9- issue unless it plainly appears by the record to have been raised in or decided by the trial court. 2 Section 2-201 (b) of the Criminal Law Article provides: (b) Penalty. (1) A person w ho comm its a murder in the first degre e is guilty of a felony and on conviction shall be sentenced to: (i) death; (ii) imprisonment for life without the possibility of parole; or (iii) imprisonment for life. (2) Unless a sentence of death is im posed in complian ce with § 2 -202 of th is subtitle and Sub title 3 of this title, or a s entence o f imprisonment for life without the possibility of parole is imp osed in co mpliance with § 2-203 o f this subtitle and § 2-3 04 of this title, the sentence shall be imprisonment for life. Md. Code (2002), § 2-201 (b) of the Criminal Law A rticle. In addition, § 2-203 provides: A defendant found guilty of murder in the first degree may be sentenc ed to imprisonm ent for life w ithout the po ssibility of parole only if: (1) at least 30 days before trial, the State gave written notice to the defendant of the State s intention to seek a sentence of imprisonment for life without the possibility of parole; and (2) the sentenc e of impriso nment f or life without the possibility of paro le is impos ed in ac cordan ce with § 2-30 4 of this title. Md. Cod e (2002), § 2-203 o f the Criminal Law Article (emphasis add ed). The cardinal rule of statutory interpretation is to ascertain and effectuate the intention of the legis lature. O Connor v. Baltimore County, 382 Md. 102, 113, 854 A.2d 1191, 1198 2 Insofar as the State is making the additional argument that the defendant waived the requirem ents of the s tatute itself, we note that there is no eviden ce in this reco rd to suggest that the defendant or his counsel, at least 30 days before trial, exercised such a waiver. N othing said b y defense co unsel, after th e fact at the se ntencing h earing, cou ld even be considered an express waiver of the requirements of the statute. Because the facts do not present themselves, however, we will not address whether § 2-203 contem plates p ermitting a waiv er by a de fenda nt of the require ments o f the sta tute. -10- (2004). As noted by this Court in Oaks v. Conners, 339 Md. 24, 35, 660 A.2d 423, 429 (1995), [t]he first step in determining legislative intent is to look at the statutory language and [i]f the words of the statute, construed according to their common and everyday meaning, are clear and unambig uous and express a p lain meaning, we will give effect to the statute as it is written. " Oaks, 339 Md. at 35, 660 A.2d at 429 (quoting Jones v. State, 336 Md. 255, 261, 647 A .2d 1204, 1206-0 7 (1994). We strive to give statutes their most reasonab le interpretation, in accord with logic and common sense, and to avoid a construction not otherwise evident by the words actually used. Greco v . State, 347 Md. 423, 429, 701 A.2d 419, 422 (1997). We note also that the statute at issue in this case is an enhanced penalty sta tute. Johnson v. State, 362 Md. 525, 529, 766 A.2d 93, 95 (2001). As such, it is highly penal, and must be strictly construed. Id. The plain language of § 2-203 of the Criminal Law Artic le requires the State to provide the defendant with timely written notice of th e intent to seek the sentence of life without the possibility of parole. A defendant found guilty of murder in the first degree may be sentenced to imprisonment for life without the possibility of parole only if: (1) at least 30 days b efore tr ial, the St ate gav e written notice to the def endan t . . . . We do not see how the words only if can be interpreted any othe r way. Wh ere the lang uage use d is unambiguous, and cons istent with the statute's appare nt purpose , it should be a ccorded its ordinary meaning. Than os v. Sta te, 332 Md. 511, 522, 632 A.2d 768, 773 (1993). In addition, [w]hen a legislative body commands that something be done, using words such as"shall" or "must," rather than "ma y" or "should," we must assume, absent some evidence to the contrary, that it was serious and that it meant for the thing to be done in the manner it directed. Id. (quoting Tucke r v. State , 89 M d.App . 295, 29 8, 598 A .2d 479 (1991 )). In the present case, defense counsel admitted to having actual notice of the State s intent more than 30 da ys before trial. She also sta ted that from what I remember, I thought -11- the State did hand up a paper or certainly made it clear on the record they were see king this sentence. In reality, however, neither the State, nor the Court c ould locate the original or a copy of a timely wr itten not ice. The statute places the burden for supplying the written notice to the de fenda nt on th e State. See Su cik v. Sta te, 344 Md. 611, 616, 689 A.2d 78, 80 (1997) (discussing the predecessor to § 2-203 an d noting tha t the burden of giving n otice is on the State); Jones v . State, 324 Md. 32, 37, 595 A.2d 463, 465 (1991) (noting that the burden is on the State to prove, by co mpetent e vidence a nd beyond a reasonab le doubt, the existence of all of the statutory conditions precedent for the imposition of the enhanced punishment ). The fact that defense counsel admitted to receiving oral notice of the S tate s intent and that the State may have given a paper to the court, does not satisfy the requirements of the statute.3 According to § 2 -203 of th e Crimin al La w A rticle , the c ourt may only sentence a defendant to life without the possibility of parole if the State gave timely written notice to the defenda nt. Md. C ode (20 02), § 2 -203 o f the C riminal L aw A rticle. In view of the seriousness of the sentence4 and the unambiguous language of the statute, construing the statute to require tim ely written notice is the mo st reason able co nstructio n. See Melgar v. State, 355 M d. 339, 347 , 734 A.2d 712, 716 (1999) ( sta ting that an enhanc ed penalty statute, is highly penal and must be strictly construed so that the defenda nt is only subject to punishment contemp lated by the statute . ); accord Jones v . State, 324 Md. 32, 38, 595 A.2d 463, 466 (1 991). The language of the statute provides no exception for oral notice, and we 3 As noted previously, defense counsel stated that the Defense had been put on notice some time ago prior to the trial that the State was going to be seeking this sentence at the conclusion of the trial. From what I remember, I thought the State did hand up a paper or certainly made it clear on the record they were seeking this sentence. 4 Section 2-1 01 (b) def ines impriso nment fo r life withou t the possibility of p arole as imprisonment for the natural life of an inmate under the custody of a correctional facility. M d. Cod e (2002 ), § 2-10 1 (b) of the Crim inal La w Art icle. -12- will not add one. See G illespie v . State, 370 Md. 219, 222, 804 A.2d 426, 427 (2002) (stating that [w]e neither add nor delete words to an unambiguous statute in an attempt to extend the statute's m eaning . ). The Court of Appeals of South Carolina has reached a similar conclusion. In State v. Johns on, 347 S.C. 67, 552 S.E.2d 339 (2001), Johnson was convicted on September 1, 1999 of arm ed robb ery. Johns on, 347 S.C. at 68, 552 S.E.2d at 339. The State asked the trial court to sentence Johnson to life without the possibility of parole because Johnson had a prior armed robber y convic tion. Id. The trial court refused to impose that sentence, finding that the State failed to give the written notice, as required by the South Carolina statute. 347 S.C. at 69, 552 S.E.2d at 340. Similar to the case before us, the defense counsel in Johnson admitted that [t]here was a lot of talk by the s olicitor befo re trial that he w as going to seek life without parole; however, I was never given any notice that he was going to seek life without parole in a written form. 5 347 S.C. at 68, 552 S.E.2d at 339. On app eal, the State 5 In Johns on, the clerk s file contained a written notice of the State s intention, dated M ay 26, 19 99. Johns on, 347 S.C. at 68, 552 S.E.2d at 339. In addition, in Johnson, the State pro ffered tha t it had given a copy of the notice to Joh nson the sa me day that it was filed and that it provide d a copy to defense co unsel by including it in the discovery materia ls given to coun sel. Id. The defense counsel denied receiving a copy of the written notice b ut adm itted hav ing actu al notice of the S tate s inte nt. Id. Even so, the trial court would not impose the harsher sentence, finding that there were no cover letters or other d ocumen ts in either the so licitor s file or the p ublic defe nder s file to suggest the State gave defense counsel written notice that it would request a life sentence without parole in the event of a guilty verdict. 347 S.C. at 69, 552 S.E.2d at 339. The Court of Appeals of South Carolina affirmed, holding that actual notice was insufficient in view of a stat ute that r equired written notice. Johns on, 347 S.C. at 70, 552 S.E.2d at 340. In the instant case, there was no copy of a purported timely notice in the c ourt s file. The A ssistant State s A ttorney noted th at his file entitled Life W ithout Parole Notice was empty and that he believed it was empty because we had sent a copy to Ms. Robinso n [trial defen se counse l]. He also s tated that he w as going to search his discovery file to try and locate the notice and supplement the record if he found it. As far (continued...) -13- argued that the court should have imposed the sentence of life without parole because defense counsel had actual notice o f the Sta te s inten t. Johns on, 347 S.C. at 69, 552 S.E.2d at 340. The South Carolina statute requiring the sentence of life without the possibility of parole for certain offenses pro vided that [w]here the solicitor is required to seek or determines to seek sentencing of a defendant under this section, written notice must be given by the solicitor to the defendant and defendant s counsel not less than ten days before trial. Johnson, 347 S.C. at 70, 552 S.E.2d at 340 (quoting § 17-25-45 (H) of the South Carolina Code). The Court considered the same principles of statutory construction that we have already discussed: It is well establish ed that in interpreting a statute, the court s primary function is to ascertain the intention of the legislature. When the terms o f the statute are clear and unam biguous, th e court must apply them according to their literal meaning. Furthermore, in construing a statute, word s must be g iven their plain an ordinary meaning without resort to subtle or forced c onstruction to limit or expand the statute s operation. Finally, when a statute is penal in nature, it must be construed strictly against the State and in favor of the defendant. Johnson, 347 S.C. at 70, 552 S.E.2d at 340 (quoting State v. Blackm on, 304 S.C. 270, 273, 403 S.E.2d 660, 66 2 (199 1). The Court reviewed the mandatory nature of the language of the statute, and w rote that, [f]or this Court to dismiss the clear and unambiguous language of the statute and merely require the defendant s counsel to have actual notice of the solicitor s intent to seek life without parole would have the effect of amending the statute. In our view, actual notice . . . is insufficient unless and until the General Assembly decides otherwise and ame nds the statu te itself. Johns on, 347 S.C. at 70, 552 S.E.2d at 340. We agree w ith the re asonin g of the Court o f App eals of S outh C arolina. The State urges us to rely on Gran dison v . State, 341 Md. 175, 670 A.2d 398 (1994), 5 (...continued) as we a re awa re, the re cord ha s never been su pplem ented w ith any tim ely written notice. -14- cert. denied, 519 U.S. 1027 (1996), to find that the purpose of the notice req uirement in this case has been met, and that, therefore, the enhanced sentence may be imposed. In our view, Grandison does not support the State s position. In Grandison, we dis cussed , inter alia, the notice to the defendant that the State in tended to seek th e death penalty. Gran dison, 341 Md. at 221, 670 A.2d at 420. In that case, the defendant was tried and convicted of two first degree murde rs. Grandison, 341 Md. at 193, 670 A.2d at 406. The written notice provided by the State informed the defendant of its intention to seek the death pen alty, although it did not specify for which murde r it was s eeking the dea th pena lty. Gran dison, 341 Md. at 221, 670 A.2d at 420. Grandison argued that the death sentences he received must be vacated because the State s notice did not tell him if he was facing the death penalty for the murder of Scott P iechow icz or fo r the mu rder of Susan Kenn edy, or both. Gran dison, 341 Md. at 221-22, 670 A.2d at 420. We rejected that argument and noted that the relevan t statute did not require the S tate to send separa te notice s. Gran dison, 341 Md. at 222, 670 A.2d at 420.6 Grandison received written notice of the State s intent to seek the death p enalty and w e held that, the purpose served by the notice requirement to allow the defendant the opportun ity to marsha l his defens es in aid of showing why imposition of the death penalty would be inappropriate in his case is satisfied by the notice given in this case. The absence of language in the notice to the effect that two sentences of death would be sought did not render the notice inadequate. Gran dison, 341 M d. at 222 , 670 A .2d at 42 0. 6 We note d that, Md. Code (1957, 1992 Repl. Vol., 1994 Cum. Supp.), Art. 27, § 412 (b) does not e xpressly require separate no tice of each death sente nce soug ht: The sentence shall be imprisonment for life unless . . . the State notified the person in writing at le ast 30 days prio r to trial that it in tended to seek a senten ce of d eath . . . . Gran dison, 341 Md. at 222, 670 A.2d at 420. -15- In the present case, the State relies on that language to argue that defense co unsel s actual notice of the State s intent to seek life without parole satisfies the purpose of the notice statute. We di sagree . Grandison is distinguishable from the instant case. There is no question that Grand ison receive d timely written n otice. Our d ecision in th at case did not discuss whether Grandison could have been sentenced to death if he had actual notice but not written notice of the State s intent to seek death. Our discussion in Grandison of the purpose of requiring notice was not in conflict with our reading of the language of the particular statute a t issue in that case . The plain language of the statute in Grandison did not require the State to provide two separate notices, and we could not say, considering the purpose of the statute, that two separa te notice s were require d. By contrast, to fall back on the general purpose of the notice statute in the instant case and hold that actual notice will suffice, ignores the plain language of the statute we must construe.7 Section 2-203 describes what constitutes fair notice - written notice at least 30 days before trial. Simply stated, we are not permitted to ignore the language of the statute.8 See Jo nes, 336 Md. at 261, 647 A.2d at 7 In support of its contention that actual notice should suffice, the State also urges us to consider Md. Rule 4-245, (enhanced penalties for subsequent offenders), and case law stating that the notice requirement of that rule is and always has been, to inform a defendant fully of the nature of the State s case against him in order that he may intelligently conduct his defense. Carter v. State, 319 Md. 618, 621, 574 A.2d 305, 306 (1990) (quoting King v . State, 300 Md. 218, 231, 477 A.2d 768, 775 (1984)). Our answer to that argument is the same as our answer to Grandison. We will not use the general purpose of notice requirements to rewrite § 2-203, which unequivocally obligates the State to give written notice to the def endan t. 8 Similarly, the Court of Appeals of South Carolina refused to ignore the language of the statute in Johnson and stated: On appeal, the State has attempted to convince this Court of the obvious purpose of the notice provision and the clear intent of the General Assembly. However, we refuse to delve beyond the clear and unambiguous (continued...) -16- 1206-07 (stating that [i]f the words of the statute, construed according to their common and everyday meaning, are clear and unambiguous and express a plain meaning, we will give effect to the statute as it is written"). 9 In view of our holding that the notice provided in this case did not comply with the requireme nts of § 2-203 of the Criminal Law Article, we must reverse, strike the sentence of life with out the p ossibility of parole, and remand this case for a new sentencing.10 In a 8 (...continued) words of the statute. If the General Assembly had not intended for the defendant s counsel to receive written notice, it would not have so provid ed. Johns on, 347 S.C. at 70-71, 552 S.E.2d at 340-41. 9 The State also relies on our discussion in Grandison of a colloquy between Grandison and the court that showed that Grandison had actual notice of the State s intent to seek the death penalty for the murders of both victims. The only comments made by this Court on that question were as follows: The notice from the State to Grandison in this case was sufficient, but even if it had been defective, Grandison clearly was aware that he faced the possibility of a death sentence in both murders. Due process was not offended under these circumstances, and the trial court properly denied the motion to dismiss the death notice. Gran dison, 341 M d. at 222-23 , 670 A.2d at 421. Gra ndison s ac tual notice tha t the State was seeking the death penalty was not the basis for our decision in that case. As previously noted, the decision was based on the fact that the relevant statute did not require the State to send separa te notice s. Gran dison, 341 Md. at 221-22, 670 A.2d at 420. By contrast, in the instant case, the statute clearly requires the State to provide a written notice of its intent to seek life without the possibility of parole, something the State fa iled to pr ove tha t it did in th is case. 10 The C riminal L aw A rticle ma ndates the new senten ce that m ust be im posed . Section 2-201 (b) of the Criminal Law Article provides: (continued...) -17- case involving a sentence a s serious as life without the possibili ty of parole, it is entire ly reasonab le to require the State to follow the letter of the law. We suggest that in order to avoid a problem in the future, the State should prepare and send a written notice with a signed certificate of mailing or service, file it with the court, and retain a copy of it in the State s own f ile. Alternatively, the State could present the defendant with the written notice in open court, (at least 30 days before trial), and state on the record that the notice has been handed to the defendant. If either of those methods are used, there will be no question regard ing wh ether the State pr ovided the wri tten noti ce as req uired b y the statute . The Confession Mr. Gorge argues that the trial court erred by finding that his statements to the police were voluntarily give n. Our resp onse to this c ontention w ill not detain us long. A rev iew of the record of the suppression hearing supports the trial court s decision. Detective Wilhelm testified that w hen he an d Detectiv e Meyer inte rviewed Mr. Go rge, he app eared to understand who they were and agreed to discuss what happened in Baltimore. Detective Wilhelm also described M r. Gorge s d emeano r as calm, alert, q uiet, and subdued. Mr. Gorge reviewed and signed a written statement containing the substance of the interview with the detectives, indicating that he understood its contents and that h e gave the statement 10 (...continued) (b) Penalty. (1) A pe rson wh o comm its a murder in the first degre e is guilty of a felony and on conviction shall be sentenced to: (i) death; (ii) imprisonment for life without the possibility of parole; or (iii) imprisonment for life. (2) Unless a s entence o f death is imp osed in co mpliance with § 2-2 02 of this subtitle and S ubtitle 3 of this title, or a sentence of imprison ment for life without the possibility of parole is imposed in compliance with § 2-203 of this subtitle and § 2-304 of this title, the sentence shall be imprisonment for life. Md. C ode (20 02), § 2 -201 (b ) of the C riminal L aw A rticle. (em phasis a dded). -18- volu ntarily. As previo usly noted, defense counsel admitted Mr. Gorge s medical records but did not call any witnesses. The defense now argues that [i]t is clear that inasmuch as petitioner was in sev ere pain, sub ject to various un known medication s, and emo tionally distraught at the time he was interviewed by the officers, his statement is subject to suppre ssion as not hav ing bee n freely o r volun tarily mad e. Petitio ner s B rief at 24 . As recently stated in Knigh t v. State, 381 M d. 517, 8 50 A.2 d 1179 (2004 ), Only voluntary con fessions are admissible a s evidence under M aryland law. A confession is voluntary if it is freely and voluntarily made and the defendant making the confession knew and understood what he [or she] was saying at the tim e he or s he said it. Hoey v. S tate, 311 Md. 473, 480-81, 536 A.2d 622, 625-26 (19 988). In orde r to be d eemed volunt ary, a confession must satisfy the mandates of the U.S. Constitution, the Maryland Constitution and Declaration of Rights , the United States Sup reme Co urt s decision in Miranda, and Marylan d non- constitu tional law . See Ball v. State, 347 Md. 156, 173-74, 699 A .2f 117 0, 1178 (1997 ). Knight, 381 Md. at 531-32, 850 a.2d at 1187 (footnote o mitted). The burd en is on the S tate to prove that the confession was freely and voluntarily made. Winder, 362 Md. at 306, 765 A.2d at 113. As described in Hillard v. State, 286 Md. 145, 150, 406 A .2d 415, 418 (197 9), a defendant s confession may not be used unless it is shown to be free of any c oercive barnacles that may have attached by improper means to prevent the expression from being voluntary. We have said that we must look at the totality of the circumstances in order to decide the volunta riness of a statement. As noted in Knight, we look to all elements of the interrogation, including th e manne r in which it was con ducted, the number of o fficers present, and the age, education, and experience of the defendant. Knight, 381 Md. at 533, 850 A.2d at 1188 (quoting Williams v. State, 375 Md. 404, 429, 825 A.2d 1078, 1092-93 (2003)). As previously noted, our review o f the circu it cou rt's de nial o f Ap pella nt's motion to suppress is limited to the rec ord of the sup pressio n hearin g. Winde r, 362 Md. at 311, 765 A .2d at 11 6. Based upon our review of the record of the suppression hearing in the instant case -19- and consideratio n of the tota lity of the circum stances, w e do not think the trial court erred by find ing M r. Go rge s stat eme nt vo luntary. Although the interrog ation took place in M r. Gorge s hospital room, while he was recovering f rom serious injuries, the detective s uncontroverted testimony regarding his discussion with Mr. Gorge supports a finding of voluntariness. Mr. Gorge s answers to D etective Wilhelm w ere lucid and accurate. M r. Gorge signed a written statement, indicating that he understood what he was signing and that he gave his statement volu ntarily. Moreover, Mr. Gorge did not testify at the suppression hearing and state anything to the contrary. In this case, there was no d irect evidence of involuntariness and we cannot say that the trial court erred by finding that the State m et its burden of pro ving th e statem ent wa s freely an d volun tarily given . CONCLUSION In summary, we hold that § 2-203 of the Criminal Law Article requ ires the record to demons trate that the State gave the defendant timely written notice of its intent to seek a sentence of life without the possibility of parole. Because the State did not comply with the requireme nts of § 2-203, the sentence of life without the possibility of parole is stricken and the case is remanded for a n ew sente ncing, at w hich time the circuit court is d irected to impose a sentence of life, in accordance with § 2-201 of the Criminal Law Article. Second, considering the record before the trial court, we hold that the court did not err by denying the motion to suppress and finding that Mr. Gorge s statements to the police were voluntarily given. On that issue, we agree with the Court of Special Appeals. JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED IN PART AND THE CASE REMANDED TO THAT COURT WITH DIRECTIONS TO VACATE THE SENTENCE OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AND TO REMAND THE CASE TO THE CIRCUIT COURT FOR -20- BALTIMORE COUNTY FOR A NEW SENTENCING CONSISTENT WITH THE OPINION OF THIS COURT. BALTIMORE COUNTY TO PAY COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS. -21- IN THE COURT OF APPEALS OF MARYLAND No. 54 September Term, 2004 JASON HARRY GORGE v. STATE OF MARYLAND Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissen ting Op inion b y Harrell, J ., which Cathell, J., Joins Filed: May 10, 2005 Although I agree with the Majority opinion s analysis and conclusion regarding Gorge s confession (Maj. slip op. 19-21), I depart from its discussion and holding that his sentencing was flawed . Accordingly, I would aff irm the judgm ents of the Court of Special App eals and the C ircuit Co urt for Baltim ore C ounty. Although it is tempting to make a stand, on th is record, bas ed on the u ndisputed timely actual notice given Gorge, I shall not. Nonetheless, if there is a better case illuminating the wisdom of why it is frequently said to be a bad idea to elevate form over substan ce, I have not seen it. There is no doub t that the pertinent statute requires the State to give written notice, at least 30 da ys prior to trial, of its inten t to seek the p enalty of life w ithout the possibility of paro le. Md. C ode (20 02), Cr im. Law Art., § 2-203(a). There also is no doubt that the original or a copy of such qualifying written notice is absent from this record. On the other hand, there is equally no quibb le that Gorge, through h is trial counsel, conceded that he had actual notice of th e State s inten t in this regard well in advanc e of 30 days before commencement of trial on 12 No vemb er 2002 . Thus, the obvious underlying purposes for the statutory notice requ irement, that is, to avoid surp rise and per mit the defe ndant to consider plea negotiations and/or prepare fully his defense, were vindicated fully here. For example, the trial judge commented at Gorge s sentencing on 3 March 2003, when Gorge s attorney first posed a question regarding the State s ability to demo nstrate man ifestly its literal compliance with § 2-203 (a)1 : 1 It is not entirely clear on this record what Gorge s complaint below was. When broached at the 3 March sentencing, Gorge s counsel stated: There has been discussion [presumably with the prosecutors] as to whether or not the State had actually filed its notice to seek a life sentence without the possibility of parole. (continued...) My notes reflect when we first came in for a pretrial conference,[2] the State disclosed to both the Defense and the Court that the State wo uld not be s eeking the death pen alty because of the fact that the family of the victim did not want this, but the State would be seeking life without parole. Indeed, Gorge s trial counsel, in the course of the 3 March sentencing proceeding, conceded the accuracy of the trial judge s recollection of what occurred at the pretrial conference, saying Your Honor, I will be quite candid with the Court, . . . [the prosec utors] . . . had pretty much early on after I got the case[3] indicated they were going to be seeking a sentence of life without parole. On other occasions over the course of that proceeding, defense counsel repeated her acknowledgment of receipt of actual notice: Your Honor, the Defense had been put on notice some time ago prior to the trial that the S tate was go ing to be see king this sentence a t the conclu sion of the tria l. * * * 1 (...continued) As a plain reading of § 2-203(a) reveals, the State is not required necessarily to file with the circuit court such a notice, only that it give the defendant written notice. To be sure, one possible means that would contribute to proving that timely written notice was given might include filing a copy or the original of the written notice (see Maj. slip op. at 18-19); even then, however, proof of compliance with the statute conceivably also could be made in a number of other ways not involving filing a paper. 2 The record does not reflect when this pretrial conference occurred, whether prior to the first scheduled trial date (8 July 2002) or thereafter prior to the actual commencement of trial on November 12. 3 Gorge s trial counsel entered her appearance on 19 February 2002. The docket suggests that Gorge s counsel may have gotten the case earlier than that. An entry reflects that, on 13 February 2002, information available to the court indicates that the Public Defender s Office will enter appearance. -2- [T]he Defense certainly had oral notice thirty days prior to even the June trial date [4] that we originally had that the State was going to seek the s entence tha t it was seeking. Again, Your Honor, we will submit that we had oral notice. Of greater significance to me in reviewing the trial judge s resolution of whether the State complied literally with § 2-203(a), how ever, is the circumstantial indicia in the record that a timely written notice5 was in fact given. Defense counsel ruminated at different times on the record: Somewh ere in the back of my min d I thought I remember reading this notice, but unfortunately - - not un fortunately. Fun ny enough neither myself no r the State cou ld fin d a co py. * * * From what I remember, I thought the State did hand up a paper or certainly made it clear on the record they were s eeking this sentence. * * * As I said, the S tate has, again , filed notice in accordan ce with the statute. I will submit to the Court. . . . The State has filed written n otice in written form toda y.[6] (Emphasis add ed). In addition, altho ugh of p ossibly less we ight, was the p rosecutor s r epresentatio n that: One of the reasons I know that we have previously filed a written notice, although I cannot put my hand on it, when I do a case like this, I make up separa te manilla fo lders. I basically 4 Actually, as noted supra, n.2, an earlier trial date of 8 July 2002 had been postponed to 12 November 2002. 5 The circumstantial evidence refers to a written notice earlier than the untimely one delivered to defense counsel on or about 16 October 2002 contained in a plea offer letter. This form of written notice was received by Gorge 28 calendar days prior to the commencement of trial on 12 November 2002. 6 Although defense counsel was referring at the time to a confirmatory, formal written notice submitted contemporaneously by the State at the 3 March proceeding, her use of again permitted a reasonable inference to be drawn by the trial judge that counsel also was referring to an earlier, timely predecessor that, unfortunately, no one could produce the original or a copy of at that time. -3- break down - - I have a couple of copies. A discovery of the case file which would be what we would send to Ms. Robinson [Gorge s trial counsel]. I have a copy that I keep just for my records. The third copy which is my working copy of the file. When I make up these man illa folders, I kee p things pie ce by piece. I have a m anilla folder in this case entitled Life Without Parole Notice. It was empty. I believe it was empty because we had sent a copy to Ms. Robinson. At the conclusion of the case I had provided a copy to the Court. It would have the original date o n it that we se nt it.[7] My review of the trial judge s oral ruling on the defense s question 8 was expansive enough to embrac e an implic it finding that a timely written notice, despite its incorporeal status in this record, was given in fa ct. Althoug h he allude d briefly to the existence of actual notice well in ex cess of 30 days before trial, he also relied on the circumstantial indica of a timely written notice in declaring I am going to proceed in the case on the basis that there was notice given to the Defense. Specific ally, he referred to the 16 October 2002 plea offer letter, which contained the following allusion: At dis position , the State will arg ue for L ife Wit hout P arole, pursuant to the Notice that has been filed. As mentioned supra, although not singled-out by the judge in his oral ruling, the record of the 3 March 2003 sentencing proceeding also reflected defense counsel s recollections, in the context of a timely written notice, of reading [a] notice. Accord ingly, from thes e circumsta ntial indicia that a timely written notice was given, the trial judge reasonably could infer, as he apparently did, that the State fulfilled its 7 Neither the Court, prosecutor, nor defense counsel offered an explanation for why no one could produce a file copy or the original of an earlier, timely written notice. 8 I repeat, it is not crystal clear whether the defense was complaining merely that the court s file, as well as her own and the State s personal files, lacked the original or a copy of a timely written notice, or that, in fact, the State failed to give Gorge timely written notice at all. The latter is somewhat problematical as a reasonable assumption to make in light of defense counsel s recollection of an earlier writing in this context. -4- duty to Gorge unde r § 2-203(a). 9 See State v. Suddith, 379 Md. 425, 430, 842 A.2d 716, 719 (2004) (finding that a fact-finder s conclusion based in whole or in part on circumstantial evidence is no different from [a conclusion] based on direct eyewitness accounts (citations omitted)). Judge C athell authoriz es me to state that he joins th is dissent. 9 Although not representative of the gold standard (see the Majority opinion s suggestions at slip op. 18-19) for proof of literal compliance with § 2-203(a)), the record in the present case is adequate to support the trial judge s apparent conclusion that timely written notice was given. -5-