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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1143 SEPTEMBER TERM, 2001 _______________________________

SIRENA CATURA WHITTINGTON v. STATE OF MARYLAND _______________________________ Hollander, Eyler, James R. Sonner, JJ. ______________________________ Opinion by Hollander, J. ______________________________ Filed: October 31, 2002

In

this

case,

we

must

consider

the

admissibility

of a

confession that was allegedly procured through deceptive police conduct involving representations during interrogation about a bogus scientific test. We must also determine whether the court

erred by admitting in evidence the results of a voice stress test, and in barring the admission of certain psychiatric testimony. A jury in the Circuit Court for Prince George's County

convicted Sirena Catura Whittington, appellant, of the second degree murder of her husband, Andre Whittington. She was also

found guilty of a handgun offense. Thereafter, the court sentenced appellant to consecutive terms of imprisonment totaling 50 years. On appeal, Whittington poses three questions, which we have rephrased: I. Did the trial court err in denying appellant's motion to suppress her confession? II. Did the trial court err in admitting evidence at trial that appellant failed a voice stress analysis test? III. Did the trial court err in ruling that appellant's board-certified psychiatrist could not render an opinion as to whether appellant's confession was voluntary? For the reasons set forth below, we shall affirm. I. SUPPRESSION MOTION A. Factual Summary

On the morning of March 26, 1999, Andrew Whittington was shot once in the back of the head at his office in Laurel. shortly thereafter. He died

At trial, the State proceeded on the theory

that appellant shot the victim because she thought her husband "was

being unfaithful to her and she was tired of it."

The defense

acknowledged that appellant shot her husband, but claimed she did so because she was a victim of spousal abuse. At the time,

appellant was in her mid 20's, a mother of two children, and had completed one year of community college. witnesses who testified at trial. Prior to trial, appellant moved unsuccessfully to suppress the statements she made during custodial interrogation, one of which was a confession. At the suppression hearing held in February What follows is a summary of She was one of many

2001, numerous witnesses testified. the evidence adduced at the hearing.

Detective Jeffrey Reichert contacted appellant by telephone shortly after 1:00 p.m. on March 26, 1999, the date of Mr. Whittington's death. Appellant told him she had dropped her Detective

husband off at work at around 7:50 a.m. that morning.

Reichert arranged to meet appellant at her home at 2:00 p.m. that afternoon. murder. At the time, appellant was not yet a suspect in the

Appellant told the detective that she had driven her

husband to work in her car, because the tires had been slashed on his car. She also gave an oral account of the events of the

morning and the previous evening. On March 29, 1999, three days after the murder, appellant went with her parents to the police station, at the request of the Prince George's County homicide unit. She arrived before 1:00 p.m.

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During the first eighteen hours that appellant was at the police station, she gave several statements, oral and written, denying any participation in the shooting. At about 7:00 a.m. on March 30,

1999, some eighteen hours after her arrival, appellant confessed to the homicide. The State introduced as an exhibit a "log" showing

what transpired while appellant was at the police station. At 12:50 p.m. on March 29, 1999, Jr., appellant escorted was her met to by an

Detective

Nelson

William

Rhone,

who

interview room.

Detective Rhone described the room as 8 feet by 6

feet in size, with one desk, two chairs, a door, and carpeting. Appellant was not handcuffed or shackled, and Rhone did not wear his handgun in the interview room. At the time of the interview,

Detective Rhone already knew that a woman had been seen leaving her husband's place of employment after the gunshot. According to Detective Rhone, appellant initially seemed

somewhat "groggy," and "lethargic."

She explained to him that the

previous morning she had taken "half a pill" that her doctor had prescribed to help her sleep. The detective claimed, however, that as appellant spoke she seemed less lethargic. some general biographical questions. He then asked her

At some point appellant told

him that earlier that year she had been questioned by the police for misuse of credit cards and theft of computers. As to the

computer theft incident, she told the detective that she had been advised of her rights and had given a statement.

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Detective Rhone advised appellant of her rights beginning at 1:35 p.m., using the "long" waiver form. Appellant indicated that

she understood her rights and initialed, checked, and signed the form.1 According to the log, the advice of rights was completed at Thereafter, appellant gave an oral statement as to the

1:45 p.m.

events of the night before and the morning of her husband's murder, in which she denied any involvement in his death. At about 1:50 p.m., Detective Rhone gave appellant a pen to write her first statement; he left the room. Unknown to appellant, the detective put a powder on the pen that was invisible to the naked eye. The log states: "As a deceptive technique used, this

investigator used a[n] orange finger print powder on a black pen that would only show up under a neon or infrared light source." Detective Rhone returned to the room at around 2:30 p.m. Upon reading appellant's written statement, he noted some

"inconsistencies" in it.

He then engaged in a question and answer

interview of appellant, in which he asked her a series of questions to clarify her statement. The detective wrote the question,

The advice of rights form advised appellant that she had the right to remain silent; that anything she said could be used against her in court; she had the right to talk to a lawyer before she was asked any questions and to have a lawyer present during questioning; if she could not afford a lawyer and wanted one, a lawyer would be provided at no cost to her; and she had the right to stop the questioning at any time. Appellant checked the box and placed her initials next to the following statements: she understood each right; she wanted to make a statement without a lawyer; she had not been promised anything or threatened; and she was not under the influence of any substance. 4

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appellant wrote the answer, and she initialed each answer as well as each page. At some point, the detective asked appellant whether she would consent to a test that would show whether she had "blow back" on her hands from recent handgun use. It was a bogus test, intended

to trick appellant into believing that the police could determine whether she had recently fired a gun. Appellant consented to the

test. The detective also asked appellant whether she would consent to a voice stress analysis ("VSA") test. Again, appellant agreed.

According to Detective Rhone, at no time did appellant ask for an attorney or ask him to stop the interview. Moreover, he denied

threatening appellant or making any promises to her. At 3:10 p.m., appellant was taken to the restroom and then returned to the interview room. At about 4:00 p.m., an evidence

technician entered the room to examine appellant's hands under an infrared light. He showed appellant the orange "powder" on her It is undisputed

hands, stating that it was residue from a gun.

that this was untrue; the orange powder came from the pen appellant had been given to write her statement. Sergeant Glen Clark met with appellant between 4:25 p.m. and 5:15 p.m. Appellant agreed to submit to a voice stress "lie

detector" test, which Sergeant Clark performed. At 5:16 p.m., Detective Rhone entered the room and asked appellant if she would sign a consent form allowing the police to

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search her house in Baltimore.

She agreed and executed the form.

At 5:30 p.m., Detective Rhone offered appellant food and water, which she refused. She was left alone until 7:25 p.m., at which During her

time Detective Christopher Brophy entered the room.

meeting with Detective Brophy, appellant requested and was given two cups of water. Detective Brophy did not take any statements

from appellant, and he left the interview room at 8:30 p.m. From 8:45 p.m. to 9:25 p.m., Detective Brophy and Detective Joseph Hoffmann met with appellant. hour. She was then left alone for an

Detective Hoffman again met with appellant from 10:30 p.m. Shortly thereafter, she was taken to the restroom From 1:30 a.m. until 3:00 a.m., appellant met

until 1:00 a.m.

and given some food.

with Detective Joseph Bergstrom. Detective Samuel Smith met with appellant at around 3:30 a.m. At 3:35 a.m. Detective Hoffman entered the room for the purpose of removing appellant's money and jewelry. Smith recalled that

appellant asked, "how could the police arrest someone [if] they didn't have a gun?" she's going to jail. jail." She also asserted that "if she says something If she does not say anything she's going to

He began a question and answer interview, writing both the Detective Smith left the room, Appellant

questions and appellant's answers.

then returned and finished the interview at 4:10 a.m.

refused to sign or initial Smith's notes of her statement. Detective Smith testified that while he met with appellant,

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she was alert and did not

seem tired.

Moreover, she never

requested food or drink, did not ask to use the bathroom, and was not handcuffed. Further, Smith maintained that appellant did not

request an attorney or ask to speak to her parents, nor indicate that she did not want to talk to the detectives. uniform. Appellant was taken to the restroom at 4:20 a.m. Upon her Smith was not in

return to the interview room, she spoke with Detective Robert Frankenfield. He described appellant as cooperative, and noted In his view, appellant seemed Frankenfield claimed

that she did not appear fatigued.

bothered by something and wanted to talk.

that appellant never asked to speak to an attorney, nor did she decline to speak to him. Moreover, he did not threaten or coerce

her, nor did he wear a weapon while in the room with appellant. Detective Frankenfield recalled that appellant told him about her marriage and discussed her belief that her husband was

"cheating" on her.

She also revealed that she had been subjected At some point,

to verbal and physical abuse by her husband.

appellant told Frankenfield, "you're trying to break me, you're trying to break me, and she started shaking her head[.]" Saying she was "so sorry," appellant then confessed to murdering her husband. She explained that when he hit her, called her names, and choked her, she just "snapped." Appellant claimed that she "didn't remember taking a gun out," but just "remembered him falling[.]"

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At 7:00 a.m., Detective Frankenfield gave appellant some paper and told her to write down what she had said. room. He then left the

At around 7:30 a.m., he brought her some food while she

finished what is referred to as the third and final statement. Thereafter, he engaged in a question and answer interview. At some

Appellant initialed each answer and signed each page.

point they spoke about the "blow back" evidence, and she told him that she could not have any "blow back" on her hands because, after shooting her husband, she had washed her hands with bleach. The police provided appellant with a mattress on which to sleep at around 11:00 a.m. At noon, appellant was taken to a

dumpster in Baltimore, where she claimed to have thrown the gun. At about 4:00 p.m., the police permitted appellant to call her family. Appellant was taken before a commissioner at 5:00 p.m.,

twenty-eight hours after she arrived at the police station.2 Whittington presented a rather different version of her

interrogation. She stated that when she met Detective Rhone at the police station she felt "woozy." a prescription medicine the She told him that she had taken before to help her sleep.

night

Detective Rhone had to steady her while escorting her to the interview room because her equilibrium was off. Appellant asserted that Detective Rhone gave her an advice of

Appellant does not complain about the delay in being brought before a police commissioner. 8

2

rights form that already had check marks in the boxes.

When she

began to read the form, he told her that he knew she was in a hurry and showed her where to place her initials and signature. wrote a statement. She then

After she finished, he took the statement and When he returned, he

left the room for about fifteen minutes.

slammed the paper on the table, told her that she was lying, and cursed at her. She also claimed that the detective "[j]acked" her Appellant also maintained that she told the

"up by [her] collar."

detective she wanted a lawyer, but he told her she could not afford a lawyer and that she would have to get a public defender. Although appellant claimed that she asked to see her parents, she said Rhone refused to allow her to do so. Appellant also claimed

that she asked for water but was never given any. According to appellant, she was never alone for more than twenty minutes. She recalled that, at one point, Detective Rhone When he returned,

left the interview room for about five minutes.

he told her she could go home after a question and answer session. Appellant said that when another officer entered, they started playing "good cop, bad cop." An officer asked her to take a The officer told her it didn't matter."

"polygraph" test for "insurance purposes." that it "wasn't admissible in court, so

Appellant agreed, and a man came in and performed the test. Although he told appellant that she had "passed" the test, another officer came in and said she had "failed miserably."

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Appellant stated that at around 1:00 a.m., she was placed in handcuffs and shackles and taken to a restroom. When she was

brought back, Detective Smith entered the room and told her that they were going to lock her up regardless of whether she talked. According to appellant, Detective Smith never asked her any

questions about the murder and never took a statement from her. After Detective Smith left, another person asked her to "take a gunpowder residue test," and she agreed. About seven officers were in the room. her hands. Some had "goggle things" on and told her to hold out

Then, an officer "turned the lights off and said, `oh,

she got it' and turned the lights on." At one point, according to appellant, Detective Frankenfield entered the room with another police officer. The detective pulled a gun from his side and repeatedly waved it in her face. She told

him that he was frightening her, and she crawled onto the floor underneath the desk and cowered. Appellant claimed that she

repeatedly told Detective Frankenfield that she wanted a lawyer but he told her that it was not necessary. home once she had written a statement. He promised she would go She began to write about

her relationship with her husband, but then asked the detective what he wanted her to say. through the statement. He told her he would "coach" her

She testified: "He basically coached me

through this, because he had other statements with him[.]" Further, she explained that she was willing to write down what he said

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because she was "tired and fed up." Although Detective Frankenfield gave appellant some food, she said she never ate it. Nevertheless, appellant claimed she was She said she repeatedly

very hungry, as well as tired and cold.

asked to call her family but the officers refused to allow her to do so. Moreover, she stated that she told the officers that she According to appellant, she asked each She also claimed that she was shackled

was tired, to no avail. officer for an attorney.

and in handcuffs most of the time. On cross-examination, appellant admitted that earlier that year she was questioned by the police about the theft of some At that time, she was advised of her rights, filled out

computers.

an advice of rights form, and waived her rights. The defense called Dr. Alan Brody, a psychiatrist, who

testified as an expert.

Approximately eleven months after the Dr. Brody

murder, he examined appellant for about four hours.

explained that he attempted to determine Ms. Whittington's "mental state" at the time of the interrogation, in order to "establish some sense of what she might have been experiencing psychologically [and] emotionally." His purpose was to assess the voluntariness of appellant's custodial statements. In his evaluation, Dr. Brody

considered appellant's history and reviewed her testimony at the suppression hearing. Dr. Brody described appellant as "quite emotionally

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vulnerable, suggestable" at the time of the police interrogation, as well as "confused." In addition, he opined that, following her

husband's death, appellant "was probably suffering from posttraumatic stress disorder," which was most "severe" in the period immediately after the death. At the relevant time, the doctor said appellant was "anxious and depressed," psychologically affected by the pills she had taken earlier, "sleep deprived," was told "false information" and was "intimidated by physical force." Further, Dr. Brody explained that sleep deprivation is "very significant" in assessing the voluntariness of a statement. He also pointed to the police deception about the blow back test as a factor in the analysis of voluntariness. The doctor concluded that appellant was "exhausted, frightened," and "under duress" when she gave her confession. Based on all these factors, Dr. Brody opined that

appellant's confession was not voluntary. Robert Phillips, M.D., Ph.D., a forensic psychiatrist, In an

testified for the State as an expert in forensic psychiatry.

effort to obtain "a very clear understanding of the way in which [appellant's] neuropsychological capacities functioned," and

provide "a more accurate opinion regarding whether or not she had that capacity to waive her rights," Dr. Phillips reviewed numerous and varied documents relevant to the case; conducted "collateral interviews" of several of appellant's relatives; arranged for and reviewed psychological testing of appellant performed by a clinical

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forensic

psychologist;

interviewed

several

of

the

detectives

involved in the interrogation; and interviewed appellant. Dr. Phillips opined that there was "no evidence of any

clinical phenomenon or diagnosis that would have impaired the defendant's capacity to give a free, knowing or voluntary statement to police authorities at the time she was questioned." Moreover,

Dr. Phillips stated: "There is simply nothing in my clinical evaluation that supports the notion she had lost the capacity to make a decision." In addition, he testified that appellant

"absolutely, unequivocally did not or does not at this time suffer from anything that remotely resembles post-traumatic stress

disorder."

Indeed, in his view, at the time of the interrogation,

"there was not one scintilla of evidence" that appellant was suffering from post-traumatic stress disorder. To the contrary, he was satisfied that, at the time of the interrogation, there was "really no clinical evidence" of "impairment of cognition."

Rather, in his view, appellant was capable of "giving a free and voluntary appellant concluded waiver" and that his of her rights. of was Based on the interview Dr. in of

review

various a

documents,

Phillips that she

appellant

"malingerer,"

"distort[ed] facts for [her] own advantage." Detectives Rhone, Smith, and Frankenfield were recalled in rebuttal. They denied that appellant's confession was the result

of the use of handcuffs, shackles, force, promises, threats,

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inducements,

intimidation,

deprivation

of

food,

or

denial

of

bathroom breaks or sleep. After the evidence was presented, appellant's trial counsel argued that the statements were involuntary. Although defense

counsel conceded that it is generally permissible for the police to be "somewhat deceptive," he contended that in this case there was "coercion and duress in its classic form." Complaining about the

length of interrogation, he asserted that the police used "classic terrorist tactics to get this woman to confess...." In this

regard, defense counsel pointed to physical threats, removal of appellant's possessions, "no bathroom," and no water. Moreover, he referred to her "groggy" condition caused by her medication. Further, he claimed that appellant was subjected to "constant stress" along with "deprivation of human essentials," including sleep. He added: "It is just not reasonable to think that being

up for 18 straight hours ... is not going to create some type of need for sleep or rest in any human." He concluded that, from the

State's perspective, appellant was "smart enough to know what to do, [yet] dumb enough to confess, but only after 18 hours." Significantly, the defense lawyer did not contend that appellant's confession was involuntary because of deceptive police conduct in using a bogus scientific test. In its ruling, the court expressly discredited appellant's version of events and credited the State's account. It found that

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appellant's statements were obtained in compliance with Miranda v. Arizona, 384 U.S. 436 (1966). considered deprivation, the the defense's undue As to voluntariness, the court of coercion and sleep the

allegations of the

length

interrogation,

and

conflicting expert testimony as to whether appellant suffered from post-traumatic stress syndrome. In a thorough and well reasoned

oral opinion denying appellant's suppression motion, the court said: A statement given by a defendant is admissible only if three broad ... factors are met. It has to be voluntary under Maryland common law, voluntary under the due process clause of the 14th Amendment under federal law and under Maryland constitutional law as well, and it must be in conformance with the mandates of Miranda. In determining whether the defendant's statement is voluntary under both Maryland common law and the due process and the federal and state constitutions, the standard is the totality of the circumstances. The factors that I must consider include where the interrogation was conducted, its length, who was present, how it was conducted, its contents, whether the defendant was given her Miranda warnings, the mental and physical condition of the defendant. The age, background, experience, education, character, intelligence of the defendant, whether the defendant was taken before a court commissioner following arrest and whether the defendant was physically mistreated, physically intimidated or psychologically pressured. Those are the factors listed in Hof [v. State, 337 Md. 581, 596-97 (1995)].... * * * I find that the statement was in fact made in compliance with Miranda. As to whether or not the statement was voluntary, either under the Maryland common law or the federal and state constitutional law, basically the defense is 15

twofold, that she confessed because she was sleepy, or she was so sleepy she would do anything to get sleep and that the length of the interrogation resulted in an involuntary statement. Thrown into that was the diagnosis by Dr. Brody that he believes she suffered from post-traumatic stress syndrome, which he felt made her more vulnerable to questioning. He based his opinion on the fact the interrogation took place in a small room, that she was handcuffed, that she was not permitted to go to the rest room, she was not permitted food, she was not permitted water, that there was deception on the part of the police, specifically as to the orange powder, and lastly, that she was sleep deprived. The detectives testified that she was not handcuffed, that she was permitted to go to the rest room, she was permitted food, she was permitted water, she was offered food and water, which she refused. So I believe the collective version of the detectives. I do not believe Miss Whittington. Therefore, obviously I'm not going to consider those factors. * * * The deception on the part of the police is constitutionally permitted. The police are permitted to lie. They are permitted to deceive in their efforts to obtain the truth. That leaves us with the sleep deprivation. Dr. Brody testified that the sleep deprivation can cause hallucinations, it causes losing touch with reality, psychotic episodes. Obviously, that is the very extreme case, and I did not infer from his testimony in that regard that he was saying that occurred in this case. On the other hand, Dr. Phillips testified, and testified that there's sleep deprivation and then there is sleep deprivation. As part of anyone becoming a doctor, they're working 48 hour shifts, 36 hour shifts. The issue is not whether her normal night's sleep was interrupted, which certainly it was, or not even that she was tired. The issue is did the loss of sleep make her lose her capacity to make decisions. 16

I find that it did not. Dr. Phillips testified that you would see a broad array of dysfunction and other aspects of behavior if someone was in fact suffering from sleep deprivation, and I believe his testimony. The other factor I'm considering is the statements themselves. I've looked at the statement that was given in the afternoon. I've read that. I read the statement that was given at 7 a.m., and there appears to me to be absolutely no difference in those statements in terms of how they're constructed. The sentence structure is beautiful. Obviously, we're dealing with an educated person. The sentences are the same. The handwriting appears to be the same. The spelling is great. That statement looks in no way

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