Logan v. State

⁷ HOLLANDER, Judge. This appeal arises from the tragic shooting deaths of Prince George’s County Deputy Sheriffs James Arnaud and Elizabeth Magruder, who were gunned down on August 29, 2002, while attempting to serve an Emergency Psychiatric Commitment Order (the “Emergency Order”) on James Ramiah Logan, appellant. Logan, who was then twenty-four years of age, was subsequently charged with two counts of first-degree premeditated murder and two counts of use of a handgun during the commission of a crime of violence. Appellant filed a notice of his intent to raise the defense of not cximinally responsible (“NCR”), pursuant to Md.Code (2001), § 3-109 of the Criminal Procedure Article (“C.P.”).

He later moved to suppress his post-arrest statements. At the conclusion of the hearing in October 2003, the court denied Logan’s motion. 1 A jury in the Circuit Court for Prince George’s County subsequently found appellant criminally responsible and convicted him of two counts of second degree murder and two counts of the handgun offense. The court sentenced appellant to a total term of imprisonment of 100 years. Logan presents seven questions for our review, which we quote: 2 QUESTIONS PERTAINING TO PRETRIAL MOTIONS I. Did the trial court err in denying [appellant’s] motion to suppress his statement where the police violated his Mirándola[ 3 ] rights by telling [appellant] that he did not need a ⁸ lawyer during questioning because the truth could not jeopardize him?

QUESTIONS PERTAINING TO VOIR DIRE I. Did the trial court err in failing to inquire of the venire whether any of them would have difficulty following the court’s instructions on the defense of not criminally responsible?

II

Was the trial court’s questioning on pretrial publicity inadequate? QUESTIONS PERTAINING TO TRIAL AND JURY INSTRUCTIONS I. Did the trial court violate [appellant’s] right of confrontation when the court permitted the State to question one of [appellant’s] experts about the fact that a Prince George’s County Detention Center psychiatrist had failed to find that [appellant] suffered from paranoid schizophrenia?

II

Did the trial court err in failing to permit [appellant’s] several expert witnesses from explaining to the jury that “appreciating” the criminality of one’s conduct is different from “knowing” that one’s conduct is criminal and in failing to instruct the jury on this distinction?

III

Did the trial court err in failing [to] instruct the jury on the defense of “settled insanity?” IV. Did the trial court err in failing to adequately instruct the jury on the distinction between intent and criminal responsibility? For the reasons that follow, we conclude that the advice of rights was defective, but any error in failing to suppress appellant’s statements was harmless beyond a reasonable doubt. However, we agree with appellant that the court erred or abused its discretion in regard to the questions posed on voir dire concerning his NCR defense and pretrial publicity.

Because we shall vacate appellant’s convictions and remand for a new trial, we decline to reach appellant’s remaining contentions. ⁹ I. FACTUAL SUMMARY A. Trial 4 On August 29, 2002, Valencia Logan, appellant’s wife, filed an ex parte Petition for Emergency Evaluation (the “Petition”), seeking hospitalization of appellant, claiming he suffered from paranoid schizophrenia. In the Petition, which was admitted at trial, Ms. Logan alleged that appellant’s “condition is worsening each day.” She asserted in the Petition that appellant “sees, hears messages from ([G]od) — someone. Keeps refering [sic] to the bible, and is saying we are in Revelations.” Further, she averred that there was a “clear and imminent danger” of appellant “doing harm to self or others,” because he “thinks that death is imminent.” That same day, the District Court for Prince George’s County issued an Emergency Order, directing that appellant “be taken into custody by any peace officer and transported to Prince George’s Hospital Center for examination and emergency care and treatment if necessary.” Appellant’s father, James Logan, Sr., recalled that on the night of August 29, 2002, Deputies Arnaud and Magruder arrived at his home with the Emergency Order. He directed them to the basement, where appellant and his friend were “having a bible study.” “After a period of time,” Mr. Logan heard the male sheriff tell appellant, “ ‘You’ve got to come and go with me now.’ ” He also heard appellant reply, “ T told you I’m not going with you anywhere.’ ” According to Mr. Logan, appellant came up from the basement, went into the guest bedroom, and closed the door.

Arnaud and Magruder followed appellant. While Mr. Logan was in the master bedroom with his wife, he “heard something that sounded like loud pops, a few pops or something.” He and his wife mistakenly thought that the deputies had shot appellant. Mr. ¹⁰ Logan saw appellant exiting the home with what “appeared to be a weapon” in his hands. Dr. Jack Matthew Titus, M.D., the Deputy Chief Medical Examiner, testified that Magruder died as the result of a single gunshot wound to the head.

Titus further opined that Arnaud died from “[mjultiple gunshot wounds,” one of which “hit the carotid artery ...,” which “is the one that goes up to the brain and gives the brain most of its blood supply.” Another gunshot wound “injured the liver,” and was “associated with internal bleeding____” Other wounds caused Arnaud to “hemorrhage.” Appellant was apprehended in the early morning hours of August 31, 2002, several miles from his home,, in a shed adjacent to an apartment building. After being treated at Prince George’s Hospital Center (the “Hospital”) for injuries inflicted by the police dog deployed during the apprehension, appellant was taken to the Criminal Investigation Division (“CID”) of the Prince George’s County Police Department for questioning. After signing an Advice of Rights and Waiver form, appellant confessed to the shootings. Although appellant admitted that he intended to kill the sheriffs, he insisted that he was “commanded” to do so by God.

In support of his NCR defense, appellant presented the testimony of three expert witnesses: Neil Blumberg, M.D., a general and forensic psychiatrist; Joanna Brandt, M.D., a general and forensic psychiatrist; and Lawrence Donner, Ph. D., a clinical psychologist. The defense experts testified that, at the time of the shootings, appellant suffered from paranoid schizophrenia, which prevented him from appreciating the criminality of his conduct or conforming his conduct to the requirements of the law. In rebuttal, the State produced the expert testimony of Scott Uithol, M.D., a general psychiatrist; Marc Tabackman, Ph.D., a psychologist; Christiane Tellefsen, M.D., a forensic psychiatrist; and Robert Phillips, M.D., a general and forensic psychologist.

In general, the State’s experts opined that appellant was suffering from a substance induced psychosis at ¹¹ the time of the shootings and was criminally responsible for his actions. We shall include additional facts in our discussion of the issues. B. Suppression Motion Prior to trial, appellant moved to suppress the statements he made during his interrogation. Logan claimed, inter alia, that he “was not properly advised of his Miranda rights, nor did he waive these rights.” 5 In a supplemental memorandum, appellant focused on statements made by Detective Ismael Canales of the Prince George’s County Police Department.

He alleged that the Miranda warnings were defective because Canales “made false and misleading statements” before and during the advisement, and these deceptive and “contradictory” statements “eviscerate[d]” the Miranda warnings. In its opposition, the State argued that the colloquy between Detective Canales and appellant was merely “an exhortation to tell the truth and in light of the follow up conversations and advices, can in no way be said to be a promise of any sort that [appellant] relied upon.” It maintains that, under Maryland law, “exhortations to tell the truth are permissible approaches for police to encourage a suspect to give a statement.” Moreover, the State asserts that “[a]ny doubt as to whether Canales had promised Logan anything was soon dispelled a few moments later,” when appellant stated that he had neither been promised anything nor threatened by Detective Canales. What follows is a summary of the evidence adduced at the suppression hearing with respect to the Miranda issue. 6 ¹² Prince George’s County Police Corporal Thomas Brown, Jr. was assigned to the “Special Operations Division K9 Unit” on the date in question. He stated that, “sometime after 1:30 a.m.” on August 31, 2002, he “responded to assist” in the apprehension of appellant.

Brown recalled: We ended up tracking to a shed and a dumpster area. At that point the dog indicated the presence of a person inside the building. At that point we set up a perimeter. Several warnings were issued [to appellant] with no results.

We used a pepper ball gun to deploy into the building. Several rounds were fired. Once again it [sic] was no response. We breached the doorway and sent the K9 to make apprehension.

According to Corporal Brown, appellant was in the corner of the shed and the dog was “engaged on” appellant. Brown told appellant “to stop resisting and fighting the dog, which he failed to do.... ” At that time, “Sergeant Lipsey came in and used a Taser gun” on appellant. Appellant was then arrested. Prince George’s County Police Corporal Michael Seyfried helped transport appellant to the Hospital.

Homicide detective Ismael Canales, an eleven-year veteran of the Prince George’s County Police Department, “immediately responded” to the Hospital after he was “notified” that appellant was headed there. He met appellant in “the emergency room entryway” at “about 2:25 in the morning,” and accompanied him during treatment. Canales recalled that appellant sustained “several scrapes about his body,” as well as “a puncture wound to one ankle and another puncture wound to an arm.” After appellant received “a couple of sutures ... and ... some antibacterial land of ointment,” he was “released into [police] custody.” Canales informed appellant that he intended to “talk to him” at the police station. ¹³ When appellant arrived at police headquarters, he was “taken straight from the [police] vehicle into the interview room[.]” According to Canales, the audio and video cameras were activated and recorded “what occurred after that[.]” 7 He explained that appellant’s “mental health issues” were “one of several issues” he kept in mind in deciding to record the interview. Canales recalled: [Appellant is] actually placed in the interview room [at] about 3:53 in the morning of the 31st [of August], 2002.

I’m then in the room several times. I’m in and out of the room several times. One at 4:05 [a.m.] at which point I’m initially asking if he wants food, drink. Just kind of explaining to him what’s going to happen.

I then exit the room and [when] I return I provide him with some water, which he had requested. I leave out [of] the room sometime after 6:00 [a.m.] later on after we have the discussion. I’m in several more times in and out the rest of the time he’s there until about 7:30, quarter to 8 in the morning. The interview began at approximately 4:05 a.m. 8 During the interview, appellant was not handcuffed.

Moreover, Canales offered food and drink to appellant “throughout the several times I’m talking to him.” Appellant was also “given the opportunity to go to the bathroom.” Before advising appellant of his Miranda rights, Canales obtained general background information from appellant. As ¹⁴ we shall see, he also gave certain assurances to appellant. Canales then obtained a waiver of rights. We quote at length from the entire interview because the sequence of events and the precise words are crucial to our analysis.

DETECTIVE CANALES: Okay. You single? Married? Divorced? [APPELLANT]: Married.

DETECTIVE CANALES: What’s your wife’s name? [APPELLANT]: Valencia.... DETECTIVE CANALES: Same last name, Logan? [APPELLANT]: Yes. DETECTIVE CANALES: Okay. How old is she? [APPELLANT]: She is 22.

DETECTIVE CANALES: And are you two living in Lynmont? [APPELLANT]: Yes. DETECTIVE CANALES: In the same address? [APPELLANT]: Yes. She goes over her mother’s house a lot of times. DETECTIVE CANALES: What’s her mother’s address? [APPELLANT]: I’ve got the address, hold on. 7012 Wood-thrush Drive.

I mean, can I ask what the information will be used for? DETECTIVE CANALES: Actually what it is [is] just your background information, that’s all. It basically lets me know who you are and basically let [sic] me know some background on you so when you and I start talking, it’s not like I’m talking to a stranger; all right? [APPELLANT]: Okay. DETECTIVE CANALES: Okay.

Where’s Woodthrush Avenue? [APPELLANT]: That’s in Lanham, Maryland. DETECTIVE CANALES: And this is whose house? ¹⁵ [APPELLANT]: That’s her mother’s house. DETECTIVE CANALES: Mother’s house. Okay.

And mind, you this is between you and I now. We are talking; okay? [APPELLANT]: Okay. DETECTIVE CANALES: What’s her mother’s name? [APPELLANT]: Ethelen. I don’t know — I know it.

Ethelen Flood. DETECTIVE CANALES: Flood. Nobody — like I said, take your time, we’re just talking; all right. Like I said, nobody’s here to hurt you or anything.

We are just talking. You have any children? [APPELLANT]: Yes. DETECTIVE CANALES: How many? [APPELLANT]: Two. DETECTIVE CANALES: Boys, girls? [APPELLANT]: Boys.

I mean I can tell because then after this happened and everything, all the info'tmation they wants [sic] to harm, me or something. DETECTIVE CANALES: Who wants to harm you? [APPELLANT]: I don’t know. Like I say, somebody wants to do something to my folks. DETECTIVE CANALES: Let me make sure we understand each other; okay.

I’m going to look out for your folks; okay. They’re fine. I’ve spoken to them on the phone. They are okay; okay?

So you don’t have to worry about anything there; all right? [APPELLANT]: All right. DETECTIVE CANALES: As far as your family, believe me I’m a family man as well so I understand where you are coming from. I won’t use any of the information to harm you. No one out here is going to harm, you or your family.

You and I are talking. Believe me I will not allow anything to happen to you; okay? [APPELLANT]: Yes. ¹⁶ DETECTIVE CANALES: Just talk to me, let me know how you feel. We will talk about it; okay? [APPELLANT]: Okay. DETECTIVE CANALES: Okay.

Do you use drugs? [APPELLANT]: Well, it depends. DETECTIVE CANALES: Like I said, we are just talking; okay. No problem if you do. I’m not charging you with anything in reference to you using drugs or anything. [APPELLANT]: I mean I had, you know.

DETECTIVE CANALES: In the past? [APPELLANT]: Yes. DETECTIVE CANALES: What drugs did you use? [APPELLANT]: Different drugs. DETECTIVE CANALES: I’m sorry? [APPELLANT]: I’ve used, I don’t know, maybe marijuana. Maybe coke.

DETECTIVE CANALES: Uh-huh. [APPELLANT]: And what they call it. The dip or whatever. DETECTIVE CANALES: Uh-huh. Anything else? [APPELLANT]: And what happened to me the last time.

DETECTIVE CANALES: What happened to you the last time? [APPELLANT]: They ask me all this information, then went to take me somewhere. DETECTIVE CANALES: We’re here; okay. I told you this back when we were in the hospital; oka,y. We need to talk.

There is some things we basically need to make clear. It’s your opportunity to tell your side [of] what’s going on here; okay. All I’m doing right now initially is kind of going through some background stuff. I’m doing this, you know, the times that is all spent is not meant to hurt you at all.

I’m not trying to do anything to go ahead and harm ¹⁷ you in any way, but what I would need to do is to get to the truth as far as what’s going on; okay? [APPELLANT!: The truth. DETECTIVE CANALES: I’m not — believe me, I understand what your concerns are. I’m not here to do anything to you; okay? We’re just here talking trying to kind of get to the bottom of what’s going on; okay? [APPELLANT]: Okay.

(Emphasis added). At approximately 4:50 a.m., Canales proceeded to discuss appellant’s Miranda rights in the following exchange: DETECTIVE CANALES: I need to make sure you’re aware [of] what your rights are now; okay. You and I need to talk about what’s going on here in reference to the incident that happened; okay? [APPELLANT]: Okay. DETECTIVE CANALES: I’m not here to hurt you.

I need to get to the truth of what’s going on, but I need to understand that you understand what your rights are; okay? [APPELLANT]: Okay. DETECTIVE CANALES: I’m asking you so I’m sure that you have seen some TV shows and everything else. You know what some of your rights are? [APPELLANT]: Yes. DETECTIVE CANALES: What are some of your rights? [APPELLANT]: I have the right to be read all my Miranda, [rights] and at any time that I’m asked— DETECTIVE CANALES: Uh-huh. [APPELLANT]: I got a right to Miranda.

I got a right to remain silent. DETECTIVE CANALES: Uh-huh. ¹⁸ [APPELLANT]: I got a right to be informed for any type of what was the probable cause, you know— DETECTIVE CANALES: That’s correct. What I’m going to do, I’m going to read you your rights to you, okay? [APPELLANT]: Okay. DETECTIVE CANALES: Once we go through if you have any questions while I’m reading to you or anything I need you to express those concerns to me; okay?

What I want you to understand is if you have any problem at all in speaking with me about this incident we need to talk about it. [APPELLANT]: Long as it’s truthful. DETECTIVE CANALES: I will be one hundred percent truthful with you; okay. I need you to be the same way. (Emphasis added).

Appellant then inquired, “Am I being [put] under arrest?” Canales responded: So I’m letting you know you are currently under arrest; okay? I don’t want you to think that, you know, this is some trick or anything. What it is right now is we’re trying to get to the bottom of what happened. Make sure the charges fit the crime.

If you have something to do with this then we’ll talk about it, see what it is that’s going on. Make sure what you are charged with matches what you did; okay. So that’s all I’m trying to do right now. Verify the information that you have right now is correct; okay?

Detective Canales then advised appellant, as follows: DETECTIVE CANALES: You have the right to remain silent. If you choose to give up this right, anything you say can be used against you in court. You understand that? [APPELLANT]: Yes. DETECTIVE CANALES: You got the right to talk to a lawyer before you are asked any questions and to have a lawyer with you, you understand that? [APPELLANT]: (Indicating) ¹⁹ DETECTIVE CANALES: If you want a lawyer but cannot afford a lawyer, they’ll be provided to you at no cost.

And basically if you want to answer questions now without a lawyer, you still have the right to stop answering at any time, you understand that? [APPELLANT]: Yes. DETECTIVE CANALES: At any time when we are talking, you just feel like you want to stop, you let me know, we’ll stop; okay? [APPELLANT]: Yes. DETECTIVE CANALES: So that means at any time when we’re talking, if you just feel like you want to stop, just let me know and we’ll stop. Okay? [APPELLANT]: I’ve always felt kind of comfortable better with a, lawyer, you know what I mean?

DETECTIVE CANALES: Uh-huh. [APPELLANT]: But, you say— DETECTIVE CANALES: We’re talking. [APPELLANT]: We’re talking about everything. We’re talking. DETECTIVE CANALES: I’m going to be straight forward with you about everything. The only thing I will ask you to do the same with me. [APPELLANT]: All right.

I d,on’t want to jeopardize anything. DETECTIVE CANALES: The only way this jeopardizes you is if you don’t tell the truth. [APPELLANT]: Okay. DETECTIVE CANALES: If you’re telling the truth, we unll get through this, okay? [APPELLANT]: All right. DETECTIVE CANALES: Do you understand these rights that I just explained to you? [APPELLANT]: Yes.

DETECTIVE CANALES: What I’m doing [is] I’m checking yes for you; okay? ²⁰ [APPELLANT]: Yes. DETECTIVE CANALES: Do you want to make a statement now at this time without a lawyer? You and I are ■ talking? [APPELLANT]: Yes, ive’re talking. DETECTIVE CANALES: Have I promised you anything, have you been offered any kind of reward or benefit or have you been threatened in any way in order to get you to 'make a statement? [APPELLANT]: No. DETECTIVE CANALES: Are you under the influence of drugs or alcohol at this time? [APPELLANT]: No. DETECTIVE CANALES: What I’m asking you [to do] right now is basically put your initials on those lines right there. [APPELLANT]: Okay.

DETECTIVE CANALES: Okay. I need you to sign right here. Okay. What’s the highest level of education you completed? [APPELLANT]: I completed the twelfth grade.

DETECTIVE CANALES: Okay. Twelfth grade. [APPELLANT]: I was taking courses and everything. DETECTIVE CANALES: Okay. Now I will just ask you a couple of quick questions; okay[?] You sure you feel okay right now?

Is there anything I can do for you right now before we get started on this at all? [APPELLANT]: I’m okay. (Emphasis added). Appellant signed the “ADVICE OF RIGHTS AND WAIVER” form at 4:55 a.m. on August 31, 2002. Thereafter, according to Canales, appellant “talk[ed] freely” about “the murders of James Arnauld [sic] and Elizabeth Magruder.” According to Canales, appellant did not “ask to stop,” he did not “say he would not talk,” and he did not “ask for a lawyer.” ²¹ Nor did appellant “ask to speak to any family members at any time.” After waiving his Miranda rights, appellant denied having any mental health issues.

The following exchange is pertinent: DETECTIVE CANALES: Are there any issues with you, and I mean I’m asking the question because you and I both know right now that there is an allegation of some possible mental health issues with you. [APPELLANT]: There is no 'mental health issue. DETECTIVE CANALES: Are you sure? [APPELLANT]: 1 don’t have any. DETECTIVE CANALES: Okay, there’s no, you don’t believe you’re, you’re God, you don’t think the end of the world is coming, I mean as far as, you know, tomorrow or anything? [APPELLANT]: No, I mean I am moved by him [i.e., God] but 1 don’t believe that I am God because.... DETECTIVE CANALES: I understand that, but right, as far as you’re concerned, a,re there any mental issues? [APPELLANT]: No, I don’t have any.

(Emphasis added). During the interview, appellant explained what occurred at his parents’ house on the evening of August 29, 2002. According to appellant, he and his friend, Anthony Kromah, were reading the Bible in his parents’ basement when, “all of a sudden,” he “heard a boom, like a door bust open,” and then “two Sheriff people came in.” He recalled that the sheriffs “came as [a] force. They said you must see our judge.” Appellant said he asked the sheriffs if they had “any paperwork,” and they responded, “No, we don’t have any paperwork.

No, we don’t have a warrant.” Appellant also stated: “I was reading the scripture that said that your God will provide you the force or whatever you have to do. God will provide you the right. All you have to do is just ask him.” Appellant explained that, as the sheriffs ap ²² proached, he kept the scripture in mind and “stood up and, you know they came at me [with] force and I just like ran and I kind of spinned and ran upstairs, and I was running.... ” Logan recalled: “I’m running towards upstairs, and then as I see my hand was provided with a tool or something.” According to appellant, the tool was “a gun,” which “just appeared in my hand.” He described the gun’s presence as “spiritual or something.” Logan stated that the gun “was originally ... in the closet ... in my old [bed]room,” and it appeared in his hand when he was running “towards the room.” He recalled that, in the upstairs bedroom, he “close[d] the door and then I open the door and I see that [the sheriffs] pulled they’re pulling out theirs [i.e., their guns], and I’m just, I just did, I mean it was like a force, it wasn’t really me.” Logan elaborated: “I just started shooting.... I didn’t feel I was the one shooting....

It didn’t feel like it was really me shooting.” He added: “I was commanded it wasn’t just me.” During the interview, appellant admitted that he intended to kill the sheriffs: DETECTIVE CANALES: Okay, so when you shot them, I mean, it was with the intention [of] hurting them, was the intention on basically getting rid of them altogether? [APPELLANT]: It was intentional on, yeah, to put them down, boom, just you know what I’m saying. DETECTIVE CANALES: When you say put them down, I mean you come out and— [APPELLANT]: I came out intending to do it. DETECTIVE CANALES: Intended to kill them? [APPELLANT]: Yeah. DETECTIVE CANALES: [Y]ou knew what you were going to do when you went into the [bed]room, right? [APPELLANT]: Um-huh. ²³ DETECTIVE CANALES: Who made the decision to do that? [APPELLANT]: I did.

Canales asked appellant why he did not “just run out the back door of the house” or “go out the window.” Appellant reiterated: “[I]t was actually, it was a force ... I was commanded by my God I had a purpose----” Canales also discussed the effect of the Bible on appellant: DETECTIVE CANALES: Okay, now so you’re saying so you’re reading [the Bible passage], you’re not actually hearing voices in your head? [APPELLANT]: I’m reading it but it was actually moving me. DETECTIVE CANALES: It’s moving you. [APPELLANT]: Yeah. DETECTIVE CANALES: So, you’re reading it, you’re feeling what you’re reading, but there’s not voices in your head?

I’m asking because once again— [APPELLANT]: Right. No voices in my head, but I’m actually being moved though. DETECTIVE CANALES: Okay. [APPELLANT]: By what I’m reading is actually getting to me. DETECTIVE CANALES: Okay. [APPELLANT]: I don’t hear voices in my head.

DETECTIVE CANALES: So, just moved by what you’re reading. [APPELLANT]: Yeah. DETECTIVE CANALES: And when you say moved, moved spiritually? [APPELLANT]: Moved spiritually, yeah. DETECTIVE CANALES: Okay. ²⁴ [APPELLANT]: Very deeply. And then all of a sudden I look up and here they [i.e., the sheriffs] come running down the stairs.

(Emphasis added). Appellant clarified his view of what the scripture said: [APPELLANT]: ... After I read the scripture and everything and I mean [it said] they would be exposed, the way the [sic] want to come to you, and this and that your people are in danger. DETECTIVE CANALES: ...

I want to make sure what it is that you’re telling me about what you read. Okay, what was that again, he will ... be exposed? [APPELLANT]: Yeah ... a person of a stiff neck nature. DETECTIVE CANALES: Yeah, and that’s what I want to know, everything that, you know, you will be a person of a stiff neck nature. [APPELLANT]: Yeah, and I’m reading it, and it said ... something like now that you know that, you have a responsibility, you must take, you must take care of it by any means necessary, because your people are in danger.... [Y]ou must handle it by, by any means, and I will grant you the force or the power to do whatever you have to do. The interview ended at approximately 7:28 a.m., when appellant was “taken to the restroom, [and] subsequently taken to the Department of Corrections.” Canales denied that he made “any promises, threats, or inducements” to appellant to elicit the statements.

On cross-examination, Canales acknowledged that, at the Hospital, he was informed that a lawyer was there to see appellant. The attorney was not brought back to see appellant in the emergency room, however, because appellant never requested an attorney. Moreover, Canales admitted that he never spoke to appellant’s parents, even though Canales told appellant during the interview that he had spoken with them. Appellant’s counsel questioned Canales about his statement to appellant after the Miranda advisement that “the only way ²⁵ this jeopardizes you is if you don’t tell the truth[.]” The following colloquy is pertinent: [COUNSEL FOR APPELLANT]: [Y]ou’re saying to [appellant] you have the right to remain silent.

If you choose to give up this right, anything that you say can be used against you in court; correct? [DETECTIVE CANALES]: That’s correct, sir. [COUNSEL FOR APPELLANT]: Now when you say that or you read that and you read that to a suspect and you also read to them ... the only way this jeopardizes you is if you don’t tell the truth; okay. Aren’t you in effect — weren’t you telling him that if he told the truth everything will be all right? [STATE]: Objection. THE COURT: Overruled. [DETECTIVE CANALES]: No, sir. [COUNSEL FOR APPELLANT]: What were you telling him, sir? [DETECTIVE CANALES]: I was telling him if you tell the truth, I believe you can’t go wrong any time you tell the truth. That helps the finder of fact to tell the truth. [COUNSEL FOR APPELLANT]: The only way this jeopardizes you is if you don’t tell the truth? [DETECTIVE CANALES]: [H]e doesn’t jeopardize himself with me as far as anything is concerned regarding that statement.

I’m not the one whose going to punish him in any way. It’s no punishment attached to it. [COUNSEL FOR APPELLANT]: He had not yet initialed the [Advice of Rights] form, had he? [DETECTIVE CANALES]: That’s correct, sir. [COUNSEL FOR APPELLANT]: He had not? [DETECTIVE CANALES]: I don’t believe he had, sir. ²⁶ [COUNSEL FOR APPELLANT]: And until a person is advised of these rights and initials the form, you can’t proceed with questioning, could you? [DETECTIVE CANALES]: That’s correct, sir. (Emphasis added). Prince George’s County Police Lieutenant Daniel Lipsey was the State’s final witness.

Lipsey, who was on the scene when appellant was apprehended, recalled: “The defendant was taken from the shed that we apprehended him in, pulled out, placed against a dumpster that was right next to it, handcuffed, and then patted down. At that point when we found out it was [sic] no weapons on him, he was transported by two officers” to the Hospital. Lieutenant Lipsey denied “hearing] anybody make any promises or inducements” to appellant or hearing appellant request a lawyer. While appellant was in his presence, neither he nor any other officer advised appellant of his rights.

Appellant called two witnesses: Scott Little, Esquire and Karen Logan, appellant’s mother. Little stated that, prior to appellant’s arrest, he was retained by appellant’s parents to represent appellant. Following appellant’s arrest, Little went to the Hospital, but was not able to see appellant. Little recalled that he told a police officer that he wanted to speak to appellant “immediately as soon as they were done with whatever treatment they were doing.” According to Little, the officer “said as soon as they’re finished, he’d come back and get me and I can talk to my client.” About twenty minutes later, that officer “came back” and “told [Little] that Mr. Logan was no longer at the hospital” and that “he had been taken over to the ... police station.” At the police station, Little informed two officers that he “wanted to see Mr. Logan,” but his requests were denied.

Little estimated that he remained at the station approximately “three hours,” all the while “being unable to see” appellant. ²⁷ Appellant’s mother testified that, on August 30, 2002, the day after the shootings, she and her husband retained Mr. Little. Mrs. Logan recalled that, on the night of appellant’s arrest, she and her husband went to the police station at approximately 2:35 a.m., and were told that appellant had been taken to the Hospital. They arrived at the Hospital and told security that they wanted to see appellant. But, after waiting “almost an hour,” they were informed that appellant had been taken to the police station.

They then returned to the station for the second time. While there, Little asked to see appellant, but the “gentleman that he spoke to told him that [appellant] had not requested a lawyer.” Mrs. Logan and her husband remained at the station “at least maybe thirty minutes” and they never saw appellant. The court then heard argument. 9 As to the alleged “Miranda, advice of rights, and waiver” violation, appellant emphasized that he was not focusing on voluntariness. He asserted: “Unlike the voluntariness standard which tolerates substantially official pressure!,] Miranda waivers are to be a free will decision,” without “police manipulation.” (Emphasis added).

The court questioned appellant’s counsel about Detective Canales’s post-Miranda statement to appellant that “the only thing that may jeopardize you is if you don’t tell the truth.” The following exchange is pertinent: THE COURT: How does that mislead when he’s also advised you have the right to stop at any time? [COUNSEL FOR APPELLANT]: Well, its [sic] misleading when you say on [the] one hand anything that you say can and will be used against you and on the other hand say the ²⁸ only thing — the only way that jeopardizes you is [it] you don’t tell the truth. THE COURT: [CJan’t [that] be interpreted to mean if you decide to talk, the only problem will be if you don’t tell me the truth[?J [COUNSEL FOR APPELLANT]: That could be interpreted that way. The interpretation that way the only problem ... is if you don’t tell me the truth and you lie, the inference you can draw from that is that is admissible in evidence. If you do tell the truth, it won’t be — you won’t jeopardize yourself.

How else does the phrase jeopardy have any meaning? THE COURT: You’re not talking about a lawyer using that language. [COUNSEL FOR APPELLANT]: But the State has the burden and the burden that they say in Miranda is the burden. They have to[ ] in effect say [there’s] no possible way that could be interpreted to mean that if you tell him the truth it wouldn’t be used against him in evidence. They have the burden, not the defense. * * * I’m saying that there’s a substantial disagreement that you can read into that as to whether or not that means if you don’t tell the truth, it won’t be used against you [sic].

It was misleading. In that respect it was deceptive.... [T]his waiver was involuntary in light of that. (Emphasis added). Referring to Hart v. Attorney General of the State of Florida, 323 F.3d 884 (11th Cir.), cert. denied sub nom., Crist v. Hart, 540 U.S. 1069 , 124 S.Ct. 813 , 157 L.Ed.2d 733 (2003), in which the police officer told the suspect, “Honesty won’t hurt you,” appellant’s lawyer stated: They [i.e., the 11th Circuit] granted a writ [of habeas corpus] after a state court denied and after a federal district court denied relief, they reversed everybody and suppressed ²⁹ a statement finding that the statement was taken in violation of Miranda on the advice of rights form. * ;|: What the court said in response to that at the Eleventh Circuit [is that tjelling him that honesty wouldn’t hurt him contradicted the Miranda warning that anything he said could be used against him in court....

It’s the same thing here. Honesty will not hwrt you is no different in substance than saying the only way this jeopardizes you is if you don’t tell the truth. It’s just the flip side of the same meaning. * * * [Ajnd again, the point that they make is that a Miranda warning as opposed to traditional voluntariness and Miranda advice will not look or mil not tolerate any misleading or any kind of deception whatsoever as opposed to ... what lis] allowed you in terms of traditional voluntariness. (Emphasis added).

The State countered that, under the totality of the circumstances, appellant’s statements were admissible. It referred the court to Maryland cases in which, on traditional voluntariness grounds, the appellate courts affirmed various exhortations to tell the truth. The State argued: [Appellant] leaves the hospital after approximately an hour and forty minutes. Approximately at 3:40 [a.m.] ...

He’s taken back to CID arriving somewhere in the area around right before 4 a.m. ... And he’s taken, again, filmed, no discussion, no promise, no threats, no inducements. Taken right to the interview room where he’s filmed. You can see it in the beginning of the tape....

This is where the handcuffs are being taken off. He’s put in the room. He’s just sitting there. Wide awake.

Alert. Waiting. Hanging out for approximately 15 minutes if you want to time it. Until Detective Canales comes in the room and starts discussing, talking to the defendant.... ³⁰ Clearly it’s a totality.

That’s the law, Your Honor.... I want the court to look at the totality of this statement from everything that’s said from Detective Canales and back to the defendant. He’s treated with kid gloves immediately. Filmed.

Taken right to the hospital. Right back to CID. On film the entire time. Anything we can do for you he’s told.

Food. Drink.... Great rapport going on between the defendant and Detective Canales. It’s no time I don’t want to talk to you.

No hesitation between the defendant. He’s freely and voluntarily talking. It can’t be any thought about it when you look at the nature of the conversation. That’s why it’s wonderful that [it] is done on tape and Your Honor has a chance to see it.

There was no type of coersion [sic], any type of physical threats. It’s no type of mental coersion [sic] in any way. They are having a very easy going conversation back and forth. Detective [Canales] gets lots of background information.

You hear that. That’s again an element the court has to decide for ... the totality of the circumstances for Miranda and also for the voluntariness of the statement. His background. You hear he has a twelfth grade education.

He’s worked at a computer place. He talks about his drug history. * * * He has a very sophisticated vocabulary back and forth. The defendant asked open ended questions. What rights right out of the defendant’s mouth.

Miranda. He knows about Miranda rights from the getgo. We know the defendant has just been arrested for a felony drug charge three weeks earlier in the beginning of August. This happens at the end of August.

So clearly here’s a person who knows. He went to the Commissioner and he’s told about all his rights. This is a person who shows sophisticated understanding as opposed to some of the defendants.... And then we begin the back and forth with the conversation.

All the background leading up to the Miranda [waiver]. And the defendant— ³¹ counsel seems to skip over the Miranda form and everything that goes in it. And so even the Hart case cited by counsel indicates how the court is supposed to determine [the validity of] the Miranda violation. By the totality of the circumstances.

Defendant may waive lights conveyed in the warnings provided the waiver is voluntary knowingly and intelligently. First the relinquishment of the right must be voluntary in the sense that it’s the product of a free and deliberate choice rather than intimidation, coersion [sic], or deception. We don’t ham any of that here. The waiver must have been made with a full awareness of both the nature of [the] right [to] the decision to abandon [Miranda andj the consequences of the decision to abandon [Miranda],....

This is strong proof, Your Honor, the advice of rights form that Your Honor has.... That it is very strong proof that the defendant knew his rights and waived them. Moreover, as you look at the totality of the circumstances he (A) knows his Miranda rights. Knows he has a right to remain silent and (B) he’s read that exact sentence prior to this issue about the jeopardy which Fll address in a second.

And he said I know anything I say may possibly be used against me. As he indicates, you see his head when you look at the video. He indicates affirmatively. He indicates that he knows all.

That he knows his 'tights. He’s willing to talk to the Detective and the big thing about the defendant when he’s talking to Detective Canales is honesty. Detective Canales is going along with it. I want you to be honest and Fll be honest with you.

Its [sic] going back and forth on this honesty issue. * * * ... So I don’t see how from the totality of the circumstances the court can rule that this is not a person from his ³² sophistication and level did not understand his rights and did not freely and voluntarily waive them and want to talk to Detective Canales and told his side of the story.... (Emphasis added). In rebuttal, appellant suggested that the State had focused improperly on: “exhortation under traditional voluntariness,” which had “nothing to do with Miranda advice of rights and waiver.” He clarified that he was not relying on “the Fifth Amendment due process analysis.... ” On October 7, 2003, the court orally denied appellant’s motion to suppress.

As to the alleged Miranda violation, the court reasoned: 10 [The] Court ... finds that based on the totality of the circumstances surrounding the taking of the Miranda waiver, that the waiver of the Miranda rights were [sic] voluntary, ... knowing and intelligent. And this was an uncoerced choice. It was a sufficient level of comprehension of his rights and that he knowingly and voluntarily waived those rights. The colloquy concerning the police officer’s admonition to be truthful did not in any way vicíate [sic] that.

Its [sic] simply an urging by the police officer to be truthful. Consequently the court will deny the motion to suppress. (Emphasis added).

II

THE MIRANDA WAIVER Appellant challenges the legality of the Miranda advisement. He contends: “The deception employed by the police, particularly in light of the lengthy colloquy between the police and [appellant] prior to the giving of Miranda rights vitiated [appellant’s] rights and nullified his waiver.” While acknowledging that a “ ‘degree of police deception to obtain a confession is tolerated[,]’ ” appellant insists that “courts around the ³³ country have held that the type of deception employed here by the police is not to be tolerated and serves to vitiate the Miranda warnings and render any waiver of them invalid.” In particular, Logan argues: Prior to the giving of the constitutionally required Miranda warnings, the Detective repeatedly advised Mr. Logan that the two “were just talking” and that the officer was not looking to hurt Mr. Logan. He lied to Mr. Logan about the safety of his family. Worse still, when Mr. Logan asked whether he might be better off with the assistance of counsel, the Detective completely contradicted the warnings and told Mr. Logan that truthful statements concerning the commission of criminal acts would not jeopardize him, so long as he told the truth.

Quite obviously, this statement stood in stark contrast to the warning of Miranda that any statement could be used against Mr. Logan in court.... The police deceived Mr. Logan into believing that “honesty would not hurt him” and that the statements made were nothing more than Mr. Logan and Detective Canales “just talking,” suggesting that the conversation was somehow off the record. It is not insignificant that Detective Canales was aware that Mr. Logan might suffer from a mental illness and the colloquy prior to the giving of the Miranda warnings, in and of themselves constitutionally troublesome, reeks of rendering the warnings useless. (Emphasis added).

Emphasizing that his argument is not predicated on traditional voluntariness, appellant explains that “the question is not whether Mr. Logan’s will was overborne but, rather, whether the Miranda warnings he received were effectively nullified by Detective Canales’ erroneous statement that he could be jeopardized by what he said only if he failed to speak truthfully.” Accordingly, appellant argues that the trial court erred in failing to suppress his statements, because his “waiver of his Miranda rights was not a knowing, intelligent, and voluntary choice in light of the police deception in this case.” In his reply brief, appellant elucidates his contention: ³⁴ The point ... is not that Mr. Logan’s statement was involuntary in the constitutional sense but, rather, that the Miranda warnings he received prior to making that statement were infirm. Although Detective Canales told Mr. Logan that he had the right to remain silent, did not have to answer any questions, and that any statement he made could be used against him in court, he effectively vitiated those warnings by reassuring Mr. Logan that, as long as he told the truth about committing the crimes, no harm would befall him. Quite obviously, this was a direct contradiction of the constitutionally required advisement that any statement Mr. Logan made could be used against him in court and wholly undermined the significance of the right to remain silent.[ 11 ] (Emphasis added). The State counters that the court “properly denied Logan’s motion to suppress his statement.” Looking to the totality of ³⁵ the circumstances, it asserts “that this was not, by any stretch, a threatening interrogation.” Despite appellant’s claim that his contention is not based on traditional voluntariness, the State seems to focus on that concept.

It argues that “the totality of the circumstances here indicate that Logan gave a voluntary statement to Canales after making a voluntary and knowing waiver of his Miranda rights.” The State adds: “ ‘ “When the issue is voluntariness, the failure of a defendant to testify almost forecloses any chance of prevailing.... Without such testimony, there is usually no direct evidence of involuntariness.” ’ ” (Quoting Uzzle v. State, 152 Md.App. 548, 571-72 , 832 A.2d 869 , cert. denied, 378 Md. 619 , 837 A.2d 929 (2003) (quoting Ashford v. State, 147 Md.App. 1, 56 , 807 A.2d 732 (2002))). In support of its position, the State observes: Logan signed the Miranda form provided to him, acknowledging that he understood his rights. Logan proceeded to talk “freely” about shooting Arnaud and Magruder.

During the three-and-a-half hour interrogation, Logan never requested an attorney nor expressed a desire to remain silent. Logan’s statement was not induced by threats or promises. In fact, nowhere in the record does there exist an identifiable quid pro quo typical of a coercive tactic. Furthermore, the record indicates that Detective Canales never deceived Logan into waiving his rights or giving a statement.

Canales specifically told Logan that he had the right to remain silent, that he did not have to answer any questions, and that he could stop answering questions at any time during the interrogation. He warned Logan, however, that any statement he made could be used against him in court. Logan stated explicitly that he understood these rights before he made his statement. Alternatively, the State asserts: “ ‘[T]he admission of an “involuntary” confession at trial is subject to harmless-error analysis.’ ” It argues: Logan’s complicity in the murders of Deputy James Arnaud and Deputy Elizabeth Magruder was undisputed. ³⁶ Even Logan concedes that the core issue in this case was the “battle” between the experts on the “insanity issue,” ... and Logan’s statement had no material impact on this aspect of the case.

Accordingly, even if it was error to admit Logan’s statement, such error, under the circumstances, was harmless beyond a reasonable doubt. (Citation omitted). In light of his NCR defense, appellant challenges the State’s “harmless error” analysis. He argues: [I]t cannot be said that the introduction of Mr. Logan’s confession was harmless considering that the State made a tactical decision to utilize Mr. Logan’s confession in its case in chief, notwithstanding that criminal agency was not in dispute.

The net effect of the statement’s introduction into evidence was to portray Mr. Logan as a “normal” person, having a conversation with detectives in an interrogation room, and admitting to intentionally shooting the two victims. Thus, contrary to what the State suggests, Mr. Logan’s confession did not merely pertain to the guilt/innocence issue, but was affirmatively used by the State as a preemptive strike against Mr. Logan’s defense that he was not criminally responsible. As such, its admission into evidence cannot be considered harmless beyond a reasonable doubt. Our review of the trial court’s ruling with respect to a suppression motion is based solely on the record of the suppression hearing.

State v. Collins, 367 Md. 700, 706-07 , 790 A.2d 660 (2002); Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); Cooper v. State, 163 Md.App. 70, 84 , 877 A.2d 1095 (2005); Freeman v. State, 158 Md.App. 402 , 408 n. 3, 857 A.2d 557 (2004). We review the evidence in the light most favorable to the State as the prevailing party. State v. Rucker, 374 Md. 199, 207 , 821 A.2d 439 (2003); Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); Whittington v. State, 147 Md.App. 496, 515 , 809 A.2d 721 (2002), cert. denied, 373 Md. 408 , 818 A.2d 1107 (2003), cert. denied, 540 U.S. 851 , 124 S.Ct. 136 , 157 L.Ed.2d 92 (2003). Moreover, we extend ³⁷ great deference to the fact-finding of the motion court, accepting the facts as found, unless clearly erroneous.

State v. Green, 375 Md. 595, 607, 826 A.2d 486 (2003); Ferris v. State, 355 Md. 356, 368, 735 A.2d 491 (1999). Nevertheless, we must make our own independent constitutional appraisal as to the admissibility of a defendant’s statements by reviewing the law and applying it to the facts of the case. Crosby v. State, 366 Md. 518, 526 , 784 A.2d 1102 (2001), cert. denied, 535 U.S. 941, 122 S.Ct. 1325 , 152 L.Ed.2d 233 (2002); Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001). We accomplish this by conducting a de novo review of the law and applying it to the first-level facts found by the suppression judge.

Nathan v. State, 370 Md. 648, 659 , 805 A.2d 1086 (2002), cert. denied, 537 U.S. 1194 , 123 S.Ct. 1303 , 154 L.Ed.2d 1029 (2003); Green, 375 Md. at 607, 826 A.2d 486 ; In re David S., 367 Md. 523, 529 , 789 A.2d 607 (2002). When the prosecution seeks to introduce a defendant’s custodial statements, the State must establish, inter alia, that the statement was obtained in conformance with the dictates of Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). See Missouri v. Seibert, 542 U.S. 600 , -, 124 S.Ct. 2601 , 2608 n. 1, 159 L.Ed.2d 643 (2004); Winder v. State, 362 Md. 275, 305-06 , 765 A.2d 97 (2001). As the Court of Appeals recently stated, “it is now clear that the requirements of Miranda are of Constitutional dimension.” Taylor v. State, 388 Md. 385 , 400 n. 7, 879 A.2d 1074 (2005) (citing Dickerson v. United States, 530 U.S. 428, 440 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000)).

There is no prescribed form or set way in which to waive Miranda rights, however. As the Supreme Court said in North Carolina v. Butler, 441 U.S. 369, 373 , 99 S.Ct. 1755 , 60 L.Ed.2d 286 (1979): “The question is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case.” The Supreme Court has set out a two-fold inquiry concerning the validity of a defendant’s waiver of Miranda rights: ³⁸ First, the relinquishment of the right must have been voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. Second, the waiver must have been made with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. Only if the “totality of the circumstances surrounding the interrogation” reveals both an uncoerced choice and the requisite level of comprehension may a court properly conclude that the Miranda rights have been waived.

Moran v. Burbine, 475 U.S. 412, 421 , 106 S.Ct. 1135 , 89 L.Ed.2d 410 (1986) (citation omitted) (emphasis added). Accordingly, before the government may introduce a defendant’s uncounselled statement, made during custodial interrogation, it must show that the suspect made a voluntary, knowing, and intelligent waiver of his privilege against self-incrimination. Miranda, 384 U.S. at 475 , 86 S.Ct. 1602 (stating that, when the government seeks to rely on a waiver of rights, it carries “a heavy burden” to show “that the defendant knowingly and intelligently waived his privilege against self-incrimination ____”); see Seibert, 124 S.Ct. at 2609-10 (“Miranda addressed ‘interrogation practices ... likely ... to disable [an individual] from making a free and rational choice’ about speaking, and held that a suspect must be ‘adequately and effectively’ advised of the choice the Constitution guarantees.”) (citations omitted; alteration and omissions in Seibert); Davis v. United States, 512 U.S. 452, 458 , 114 S.Ct. 2350 , 129 L.Ed.2d 362 (1994) (stating that Miranda “ ‘requires] the special protection of the knowing and intelligent waiver standard.’ ”) (citation omitted) (alteration in Davis). As the Court of Appeals said in McIntyre v. State, 309 Md. 607, 614-15 , 526 A.2d 30 (1987), “In undertaking to prove a waiver of Miranda rights, ‘a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel.’” (Citation omitted).

See also White v. State, 374 Md. 232, 251 , 821 A.2d 459 , cert. denied, ³⁹ 540 U.S. 904 , 124 S.Ct. 262 , 157 L.Ed.2d 189 (2003); Freeman, 158 Md.App. at 425 , 857 A.2d 557 . In addition, the State bears the burden of establishing that an incriminating custodial statement was voluntarily made under Maryland nonconstitutional law, the Due Process Clause of the Fourteenth Amendment to the United States Constitution, and Article 22 of the Maryland Declaration of Rights. See Winder, 362 Md. at 305 , 765 A.2d 97 ; Ball v. State, 347 Md. 156, 173-74 , 699 A.2d 1170 (1997), cert. denied, 522 U.S. 1082 , 118 S.Ct. 866 , 139 L.Ed.2d 763 (1998); Pappaconstantinou v. State, 352 Md. 167, 172-73 , 721 A.2d 241 (1998); Hoey v. State, 311 Md. 473, 480 , 536 A.2d 622 (1988); see also Dickerson, 530 U.S. at 434 , 120 S.Ct. 2326 ; Colorado v. Connelly, 479 U.S. 157, 166-67 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986). “[T]he ultimate issue of ‘voluntariness’ [of custodial statements] is a legal question.... ” Miller v. Fenton, 474 U.S. 104, 110 , 106 S.Ct. 445 , 88 L.Ed.2d 405 (1985); see Arizona v. Fulminante, 499 U.S. 279, 287 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991); Baynor v. State, 355 Md. 726 , 729 n. 1, 736 A.2d 325 (1999); Hof v. State, 337 Md. 581, 605 , 655 A.2d 370 (1995). 12 But, appellant does not challenge traditional voluntariness under the Due Process Clause or Maryland nonconstitutional law. Rather, he contends solely that the Miranda warnings themselves were defective, for the reasons previously articulated. “ ‘Miranda is a more demanding standard than is traditional voluntariness....’” Matthews v. State, 106 Md. ⁴⁰ App. 725, 739, 666 A.2d 912 (1995), cert. denied, 341 Md. 648 , 672 A.2d 623 (1996) (citation omitted).

Indeed, “ ‘it is quite possible to fail the Miranda test and yet pass the undergirding voluntariness test.’ ” Id. (citation omitted). See Dickerson, 530 U.S. at 444 , 120 S.Ct. 2326 (noting that “statements which may be by no means involuntary, made by a defendant who is aware of his ‘rights,’ may nonetheless be excluded” because of a Miranda violation); Edwards v. Arizona, 451 U.S. 477, 483, 484 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981) (holding that state court erroneously concluded that defendant’s admission was voluntary, without deciding whether defendant “had knowingly and intelligently relinquished” his Miranda rights, and noting that “the voluntariness of ... an admission on the one hand, and a knowing and intelligent waiver on the other, are discrete inquiries”); Lewis v. State, 285 Md. 705, 722 , 404 A.2d 1073 (1979) (noting that, under Miranda, the type of police deception tolerated is “particularly” limited). As with voluntariness, in a Miranda inquiry we must look to the “totality of the circumstances” to assess the validity of a suspect’s waiver of rights.

Holmes v. State, 116 Md.App. 546, 553 , 698 A.2d 1139 (1997) (“Defendants may waive their Miranda rights provided, under the totality of the circumstances, they act voluntarily, knowingly, and intelligently”), af f'd on other grounds, 350 Md. 412 , 712 A.2d 554 (1998). See also Moran, 475 U.S. at 421 , 106 S.Ct. 1135 ; Fare v. Michael C., 442 U.S. 707, 724-25 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979) (“[T]he determination whether statements obtained during custodial interrogation are admissible ... is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forego” his Miranda rights.); Butler, 441 U.S. at 374-75 , 99 S.Ct. 1755 (“[T]he question of waiver must be determined on ‘the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ ”) (Citation omitted). ⁴¹ Although “[a]n express written or oral statement of waiver of the right to remain silent ... is usually strong proof of the validity of that waiver, [it] is not inevitably ... sufficient to establish waiver.” Butler, 441 U.S. at 373 , 99 S.Ct. 1755 ; see also Blasingame v. Estelle, 604 F.2d 893, 896 (5th Cir.1979) (“Defendant’s signing of the waiver form, though not conclusive, is ‘usually strong proof of the voluntariness of the waiver.”) (Citation omitted) (emphasis added). As the Supreme Court recognized in Seibert, 124 S.Ct. at 2610 , “it would be absurd to think that mere recitation of the litany [of Miranda , rights] suffices to satisfy Miranda in every conceivable circumstance.” And, in contrast to traditional voluntariness, “there is an absolute prohibition upon any trickery which misleads the suspect as to the existence or dimensions of any of the applicable [Miranda ] rights.... ” Wayne R. LaFave, et al., 2 Criminal Procedure § 6.9(c) (3d.2000). Appellant relies on Hart v. Attorney Gen. of the State of Florida, 323 F.3d 884 (11th Cir.2003), in which the defendant challenged the validity of his Miranda waiver.

In that case, after the teenaged defendant was informed of his rights by one detective, he signed the waiver form and then asked to speak to another detective, with whom he was familiar. Id. at 887-88. When that detective arrived, the defendant asked her “opinion” as to “the pros and cons of having an attorney.... ” Id. at 888. The second detective responded “that in her opinion the pros of having an attorney were ‘He’ll protect your rights.

He’ll tell you what to answer, what not to answer, and he’ll be here for you.’ She told him the con in her opinion was ‘I’m going to want to ask you questions and he’s going to tell you you can’t answer me.’ ” Id. At the suppression hearing, the detective acknowledged that while she never told the defendant that giving a statement would help his situation, she did tell him “ ‘honesty wouldn’t hurt him.’ ” Id. at 889. The court denied the suppression motion, concluding that the appellant did not make an unequivocal request for an attorney and, consequently, the detective’s colloquy with Hart did not render his waiver involuntary, unintelligent, and unknowing. Id. at 890, 890 n. 11. ⁴² The Eleventh Circuit subsequently granted the defendant’s request for habeas corpus relief.

It concluded that the waiver was invalid, as “the product of deception,” and was made without “full awareness” of “the consequences of the decision .... ” Id. at 893. The court reasoned: In this ease, Detective Mauer [i.e., the first detective] went to great lengths to apprise Hart of his rights. He testified that he went over the Miranda rights waiver form with Hart and carefully explained each Miranda warning to Hart, including that anything he said could be used against him in court. Mauer testified that Hart signed the form to indicate that he understood each right and that he was willing to answer questions without a lawyer....

Our analysis cannot end with Hart’s signing of the waiver form because we are required to examine the ‘totality of the circumstances surrounding the interrogation’ to determine whether Hart’s decision to waive his rights was made voluntarily, knowingly, and intelligently}] Id. (Citation omitted in Hart) (emphasis added). The court determined: “Although asking for the pros and cons of hiring a lawyer is not an unequivocal request for counsel, it does indicate that Hart did not fully understand his right to counsel and was asking for clarification of that right.” Id. at 894. Of import here, the court also addressed the significance of the second detective’s comment to the defendant that “honesty wouldn’t hurt him.” The court said: Telling him that “honesty wouldn’t hurt him” contradicted the Miranda warning that anything he said could be used against him in court.1 ] The phrase “honesty mil not hurt you” is simply not compatible with the phrase “anything you say can be used against you in court. ” The former suggested to Hart that an incriminating statement would not have detrimental consequences while the latter suggested (correctly) that an incriminating statement would be presented at his trial as evidence of his guilt.

Id. (Emphasis added). The Eleventh Circuit concluded, id. at 895 (emphasis added): ⁴³ Given the totality of the circumstances surrounding the interrogation, which include Hart’s trust of Schuster lie., the second detective] and Schuster’s statements contradicting the Miranda warnings, we cannot say that Hart’s decision to waive his rights and confess was voluntary, knowing, and intelligent. His decision to waive his rights and confess was the product of Schuster’s deception and, as a result of her contradictory statements, he did not truly understand the nature of his right against self-incrimination or the consequences that would result from waiving it.

Therefore, his waiver was' not voluntary, knowing, and intelligent as required by Miranda, and the state court’s failure to apply the correct legal standard to this issue resulted in a decision that was contrary to clearly established federal law, as determined by the Supreme Court. Appellant also refers us to the Eleventh Circuit’s decision in United States v. Beale, 921 F.2d 1412 (11th Cir.), cert denied, 502 U.S. 829 , 112 S.Ct. 99 , 100, 116 L.Ed.2d 71 (1991). In that case, the defendants were convicted in federal court of participating in a racketeering organization that committed a series of armored truck robberies in Florida between 1982 and 1985. Id. at 1419.

Of the nearly one hundred witnesses who testified at the trial, most were either witnesses to the robberies or federal law enforcement officials who investigated them. Id. On appeal, one of the defendants, Francisco Lavin, a native of Cuba, claimed that he did not understand his constitutional rights and “signed the waiver form only after the FBI agents told him that signing the form would not hurt him.” Id. at 1434. Lavin had a fifth grade education and did not speak English or read Spanish.

Id. However, an FBI agent, certified in speaking Spanish, had testified that he was present when another agent, a native Spanish-speaker, orally advised Lavin of his Miranda rights in Spanish and provided Lavin with a waiver form in Spanish. Id. According to the agent, Lavin signed the form after he read it and stated that he understood it.

Id. ⁴⁴ The appellate court concluded that the trial court erred by . admitting the statements made by Lavin after he signed the waiver form, but determined that the error was harmless. Id. at 1435. Significantly, the court ruled that the waiver was not “voluntary, knowing and intelligent,” id., because Lavin “signed the waiver only after the agent told him that signing the form would not hurt him.... ” Id. at 1435. The Eleventh Circuit reasoned: Although the Supreme Court has held that the police do not have to recite the Miranda warnings in a talismanic fashion, the warnings must not be misleading....

It appears that by telling Lavin that signing the waiver would not hurt him the agents contradicted the Miranda warning that a defendant’s statements can be used against the defendant in court, thereby misleading Lavin concerning the consequences of relinquishing his right to remain silent. .... Accordingly, the district court erred by admitting Lavin’s statement. Id. (Emphasis added) (citations omitted).

Nevertheless, the court was satisfied that “the remaining evidence is not only sufficient to support the conviction but so overwhelming as to establish Lavin’s guilt beyond a reasonable doubt.” Id. at 1435. Accordingly, it found the error harmless. Additionally, appellant relies on State v. Stanga, 617 N.W.2d 486 (S.D.2000). In that case, the defendant was charged with burglary, simple assault, and violating a domestic protection order.

Id. at 488 . During the advisement of Miranda rights, the detective assured the defendant “that any statement he gave was ‘between you and me,’ signifying that it would not go beyond the interrogation room.” Id. at 487 . Furthermore, to induce the defendant to talk, the detective told the defendant, “ ‘you need to get this off your chest.’ ” Id. at 489 . When the defendant told the detective, “ T know you’re here to get something against me[,]’ ” the detective responded: “ ‘No, I’m here for you and I to talk.’ ” Id.

The detective also assured the defendant, “ ‘You can trust me straight up.’ ” Id. ⁴⁵ The defendant sought to suppress his confession, claiming he did not make a knowing, intelligent, and voluntary waiver of his Miranda rights. Id. at 487 . In particular, the defendant contended that “the required Miranda warning that any admission can be used in court was subverted by the suggestion that admissions would not be used against him.” Id. The court determined that the trial court erred by admitting the defendant’s confession, but found the error harmless.

Id. at 491 . Of import here, the Stanga Court explained: After giving the Miranda warning to Stanga, [Detective] Lubbers repeatedly contradicted the admonition that anything Stanga said could be used against him. Lubbers told Stanga twelve times that what was said during the interrogation was between the two of them. . In the suppression hearing and in the trial, Lubbers admitted that he lied to Stanga when he told him that what he said would not go any further than the interview room.

Some of the detective’s comments were equivocal and, might fairly be characterized as sympathetic colloquialisms ..., but several of the assurances clearly crossed the line. When Stanga said that he knew that