Whittington v. State

HOLLANDER, Judge. 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, Andre Whittington was shot once in the back of the head at his office in Laurel. He died shortly thereafter.

At trial, the State proceeded on the ⁵⁰¹ 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. She was one of many 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 2001, numerous witnesses testified. What follows is a summary of 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 husband off at work at around 7:50 a.m. that morning.

Detective Reichert arranged to meet appellant at her home at 2:00 p.m. that afternoon. At the time, appellant was not yet a suspect in the murder. 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. 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, appellant was met by Detective Nelson William Rhone, Jr., who escorted her to an 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 ⁵⁰² 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. He then asked her some general biographical questions.

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. 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 1:45 p.m.

Thereafter, appellant gave an oral statement as to the 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 ⁵⁰³ 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, 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 hands, stating that it was residue from a gun. It is undisputed 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 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 time Detective Christopher Brophy en ⁵⁰⁴ tered the room.

During her 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 Hoffman met with appellant. She was then left alone for an hour.

Detective Hoffman again met with appellant from 10:30 p.m. until 1:00 a.m. Shortly thereafter, she was taken to the restroom and given some food. From 1:30 a.m. until 3:00 a.m., appellant met with Detective Joseph Berg-strom. 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 also asserted that “if she says something she’s going to jail. If she does not say anything she’s going to jail.” He began a question and answer interview, writing both the questions and appellant’s answers.

Detective Smith left the room, then returned and finished the interview at 4:10 a.m. Appellant refused to sign or initial Smith’s notes of her statement. Detective Smith testified that while he met with appellant, 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. Smith was not in uniform. Appellant was taken to the restroom at 4:20 a.m. Upon her return to the interview room, she spoke with Detective Robert Frankenfield.

He described appellant as cooperative, and noted that she did not appear fatigued. In his view, appellant seemed bothered by something and wanted to talk. Franken-field claimed that appellant never asked to speak to an attorney, nor did she decline to speak to him. Moreover, he did ⁵⁰⁵ 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 to verbal and physical abuse by her husband. At some point, appellant told Frankenfield, “you’re trying to break me, you’re trying to break me, and she started shaking her headL.]” 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!.]” At 7:00 a.m., Detective Frankenfield gave appellant some paper and told her to write down what she had said.

He then left the room. 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. Appellant initialed each answer and signed each page.

At some 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.” She told him that she had taken a prescription medicine the night before to help her ⁵⁰⁶ sleep. 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 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.

She then wrote a statement. After she finished, he took the statement and left the room for about fifteen minutes. When he returned, he slammed the paper on the table, told her that she was lying, and cursed at her. She also claimed that the detective “packed” her “up by [her] collar.” Appellant also maintained that she told the 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 left the interview room for about five minutes.

When he returned, 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 “polygraph” test for “insurance purposes.” The officer told her that it “wasn’t admissible in court, so it didn’t matter.” 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.” 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 ⁵⁰⁷ agreed. About seven officers were in the room. Some had “goggle things” on and told her to hold out her hands.

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.

He promised she would go home once she had written a statement. She began to write about her relationship with her husband, but then asked the detective what he wanted her to say. He told her he would “coach” her through the statement. 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 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 very hungry, as well as tired and cold. She said she repeatedly 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 was tired, to no avail. According to appellant, she asked each officer for an attorney.

She also claimed that she was shackled 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 computers. At that time, she was advised of her rights, filled out 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 murder, he examined appellant for about four hours. Dr. Brody explained that he attempted to determine Ms. Whit-tington’s “mental state” at the time of the interrogation, in order to “establish some sense of what she might have been ⁵⁰⁸ 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 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 post-traumatic 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, testified for the State as an expert in forensic psychiatry. In an 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 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 ⁵⁰⁹ 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 waiver” of her rights.

Based on the interview of appellant and his review of various documents, Dr. Phillips concluded that appellant was a “malingerer,” in that she “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, 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 perspec ⁵¹⁰ tive, 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 appellant’s statements were obtained in compliance with Miranda v. Arizona, 384 U.S. 436 , 86 S.Ct. 1602 , 16 L.Ed.2d 694 (1966). As to voluntariness, the court considered the defense’s allegations of coercion and sleep deprivation, the undue length of the interrogation, and the 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 , 655 A.2d 370 (1995) ].... ⁵¹¹ 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 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, peimitted.

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. ⁵¹² As part of anyone becoming a doctor, they’re working 48 hour shifts, 86 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.

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 — that statement was not written by someone who had any lack of capacity to make that statement.

As between the two, I think it’s clear already I believe Dr. Phillips. I believe his testimony was not only the most credible, it was the one that was based on the proper standards and the proper foundations. He had tests run, he obtained all the information, so he had a background, and he found there was no evidence of any clinical condition that would have impaired her capacity to freely and voluntarily make the statement. There was no evidence of any post-traumatic stress, and that the sleep deprivation was simply not a factor.

There was no indication that she lost her capacity to make any decisions based on the lack of sleep. (Emphasis added). We shall include additional facts in our discussion. B. DISCUSSION In-appellant’s challenge to the denial of her motion to suppress, she focuses primarily oh deceptive conduct by the ⁵¹³ police in using a phony “blow back” test. 3 Although appellant concedes that the court was “free to believe” the State’s evidence, in which the police denied any mistreatment or deprivation of appellant’s right to counsel, Whittington contends that the deceptive police conduct constituted psychological inducement or coercion.

Consequently, she insists that her confession was involuntary and inadmissible. Whittington asserts: [T]he State freely confirmed its effective use of a particular form of deception which was so extreme that it was coercive and intolerable. The use of a false, gunshot residue ‘test,’ coupled with use of a police technician to falsely validate the phony test results, crossed a line into impermissible deception. That level of deception was combined with the use of a ‘voice stress test,’ which is even less scientifically reliable than the inadmissible polygraph test, but which was touted to the accused as a lie detector.

Finally, these stress factors, were combined with the length of the interrogation — 14 out of 28 hours spent in police custody, while three detectives took turns questioning her — to form a type of coercion so severe that it did ‘break’ the Appellant and coerce her admissions. Appellant adds: ⁵¹⁴ The detectives’ conduct in the case sub judice far exceeds law enforcement tactics allowed in previous Maryland cases. The detectives here continuously confronted Appellant with the false claim that they possessed indisputable, scientific and lie detector evidence of her guilt. This method is far more coercive than merely representing to the suspect that another has implicated her.

Defense lawyers can cross examine witnesses, whose motives to lie can be exposed. But scientific test results, as the detectives in this case claimed to have, cannot be so easily attacked. In response, the State asserts: “Deception about constitu- ' tional rights is qualitatively different than deception about the amount of evidence available to police.” As to appellant’s constitutional rights, it maintains that the police did not resort to deception. When, as here, the prosecution seeks to introduce a defendant’s custodial admission, the State must establish, by a preponderance of the evidence, 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). 4 See Hoey v. State, 311 Md. 473, 480 , 536 A.2d 622 (1988).

The State also bears the burden of establishing that the incriminating statement was made voluntarily 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 Hof v. State, 337 Md. 581, 597-98 , 655 A.2d 370 (1995); Hoey, 311 Md. at 480 , 536 A.2d 622 ; see also Colorado v. Connelly, 479 U.S. 157, 166-67 , 107 S.Ct. 515 , 93 L.Ed.2d 473 (1986); Pappaconstantinou v. State, 352 Md. 167, 172-73 , 721 A.2d 241 (1998). To be sure, “the ultimate issue of ‘voluntariness’ [of a confession] is a legal question.... ” Miller v. Fenton, 474 U.S. 104, 110 , 106 S.Ct. 445 , 88 L.Ed.2d 405 (1985); see also ⁵¹⁵ 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, 337 Md. at 605 , 655 A.2d 370 . Therefore, we conduct a de novo review of the trial court’s resolution of the voluntariness issue, based on the record presented at the suppression hearing.

Our review of the trial court’s ruling with respect to a suppression motion “ordinarily is limited to information contained in the record of the suppression hearing.” Cartnail v. State, 359 Md. 272, 282 , 753 A.2d 519 (2000); see Nathan v. State, 370 Md. 648, 659-60 , 805 A.2d 1086 (2002); In re David S., 367 Md. 523, 529 , 789 A.2d 607 (2002); Wilkes v. State, 364 Md. 554, 569 , 774 A.2d 420 (2001). We extend great deference to the fact finding of the motion court, and accept the facts as found, unless clearly erroneous. Riddick v. State, 319 Md. 180, 183 , 571 A.2d 1239 (1990); see Ferris v. State, 355 Md. 356, 368 , 735 A.2d 491 (1999); State v. Fernon, 133 Md.App. 41 -44, 754 A.2d 463 (2000); Charity v. State, 132 Md.App. 598, 606 , 753 A.2d 556 , cert. denied, 360 Md. 487 , 759 A.2d 231 (2000) (“[w]hen conflicting evidence is presented, we accept the facts as found by the hearing judge unless it is shown that those findings were clearly erroneous.”) This means that we give due regard to the motion judge’s opportunity to assess the credibility of the witnesses. McMillian v. State, 325 Md. 272, 281-82 , 600 A.2d 430 (1992); Fernon, 133 Md.App. at 43 , 754 A.2d 463 .

Moreover, we review the evidence in the light most favorable to the prevailing party. Riddick, 319 Md. at 183 , 571 A.2d 1239 ; see Charity, 132 Md.App. at 606 , 753 A.2d 556 . Nevertheless, as we indicated, this Court must make its own independent constitutional appraisal as to the admissibility of a confession 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); Wilkes, 364 Md. at 569, 774 A.2d 420 ; Facon v. State, 144 Md.App. 1, 20 , 796 A.2d 101 , cert. granted, 369 Md. 570 , 801 A.2d 1031 (2002); Jones v. State, 111 Md.App. 456, 466 , 681 A.2d 1190 , cert. denied, 344 Md. 117 , 685 A.2d 451 ⁵¹⁶ (1996)(citing Ornelas v. United States, 517 U.S. 690 , 116 S.Ct. 1657 , 134 L.Ed.2d 911 (1996)).

We accomplish this by reviewing the law and applying it to the first-level facts found by the suppression judge. In re Tariq A-R-Y, 347 Md. 484, 488-89 , 701 A.2d 691 (1997), cert. denied, 522 U.S. 1140 , 118 S.Ct. 1105 , 140 L.Ed.2d 158 (1998); Howard v. State, 112 Md.App. 148, 156 , 684 A.2d 491 (1996), cert. denied, 344 Md. 718 , 690 A.2d 524 (1997). As we consider the voluntariness issue, we are mindful that “[a] confession is like no other evidence. Indeed, ‘the defendant’s own confession is probably the most probative and damaging evidence that can be admitted against him [or her]....’ ” Fulminante, 499 U.S. at 296 , 111 S.Ct. 1246 (quoting Bruton v. United States, 391 U.S. 123, 139 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968) (White, J., dissenting)).

As the Supreme Court recognized in Fulminante , a confession is significant because “ ‘[t]he admissions of a defendant come from the actor himself, the most knowledgeable and unimpeachable source of information.... Certainly, confessions have profound impact on the jury....’ ” Fulminante, 499 U.S. at 296 , 111 S.Ct. 1246 (quoting Bruton, 391 U.S. at 140 , 88 S.Ct. 1620 ) (White, J., dissenting). Appellant relies primarily on State v. Cayward, 552 So.2d 971 (Fla.Dist.Ct.App.1989), review dismissed, 562 So.2d 347 (Fla.1990), to support her contention that police deception in using a bogus scientific test rendered her confession involuntary. In Cayward , a teenager was suspected of sexually assaulting and smothering his young niece.

During a two-hour interrogation, the police showed the suspect two scientific reports that had been fabricated as a ploy to induce a confession. Id. at 972 . One report was prepared on stationery of the Florida Department of Criminal Law Enforcement; the other was prepared on stationery of Life Codes, Inc., a phony scientific testing organization. The police represented to the suspect that both scientific reports were genuine, and indicated that the test results revealed that Cayward’s semen was found on the victim’s underwear.

Id. At the end of the interrogation, Cayward asked, “What happens now?” The ⁵¹⁷ investigator told him, “We are going to the grand jury,” and indicated that the State would seek the death penalty. Id. Cayward then confessed.

Concluding that the fabrication of the documents and exhibition of them to the suspect violated the defendant’s due process rights, the appellate court determined that the defendant’s statement was involuntary. Thus, it upheld the trial court’s suppression of the confession. Cayward, 552 So.2d at 972 . The Florida court acknowledged that deceptive police conduct does not render a confession involuntary per se.

Although the Cayward court recognized the viability of the “totality of the circumstances” test in regard to the determination of voluntariness, it found that there was “a qualitative difference” between the use of verbal “artifices” and the fabrication of bogus documents. Id. at 973 . Thus, the court adopted a “bright line” rule, stating that the manufacture and use of false documents by the police to induce a confession “has no place in our criminal justice system.” Id. at 974 . The Cayward court recognized that, because most people expect police interrogations to take place in a confrontational or adversarial atmosphere, a suspect would probably expect the police to engage in some form of oral deception.

In contrast, the court indicated that neither the expectations of the suspect nor the public “encompass the notion that the police will knowingly fabricate tangible documentation____” Id. In the court’s view, such police conduct was reminiscent of “the horrors of less advanced centuries in our civilization when magistrates ... schemed with sovereigns to frame political rivals.” Id. Indeed, the court regarded such conduct as analogous to “one of the parade of horrors” that our “modem judicial system was designed to correct.” Cayward,, 552 So.2d at 974 . Therefore, it concluded that “the manufacturing of false documents by police officials offends our traditional notions of due process of law....” Id.

In reaching its decision, the Florida court reasoned that, unlike oral misrepresentations, manufactured documents have “the facial appearance of authenticity.” Id. Moreover, the ⁵¹⁸ court expressed concern that such documents might find their way into official files and even the courtroom. In its view, the erroneous admission of false documents would diminish the public’s confidence in both the police and the legal system. Id. at 975 .

See also State v. Farley, 192 W.Va. 247 , 452 S.E.2d 50 , 60 n. 13 (1994) (agreeing with Cayward’s holding distinguishing between police deception generally, and the manufacture of false documents by the police). Analogizing to Cayward , appellant argues here that “the police not only used verbal lies, but they manufactured tangible, false scientific evidence, by using a powder [sic] surreptitiously placed on the hands of the accused. Then, they even involved a police ‘evidence technician,’ a black light, and goggles to show the accused that a bright orange powder was on her hands, supposedly conclusive, scientific proof that she had fired a gun and there was ‘the blow back from the gun’ glowing bright orange on her hand.” We reject Whittington’s contention that police deception with regard to the use of bogus scientific procedures is inherently more coercive than other forms of deception. At the outset, we note that there are important distinctions between this case and Cayward .

The test results in Cayward clearly induced the defendant to confess. In contrast, appellant did not immediately confess when she learned of the results of the “blow back” gun test. Moreover, the court’s decision in Cayward was partly rooted in its deep concern about the potential for misuse of a written memorialization of a fake scientific test, as well as the “indefinite life” of such documentary evidence. In this case, however, no documents were fabricated, so the concerns of the Cayward court are not implicated.

A confession is generally voluntary if it is “ ‘freely and voluntarily made at a time when [the defendant] knew and understood what he was saying.’ ” Hoey, 311 Md. at 481 , 536 A.2d 622 (citation omitted). Conversely, “a confession is involuntary if it is induced by force, undue influence, improper promises, or threats.” Id. at 483 , 536 A.2d 622 . Thus, under ⁵¹⁹ Maryland nonconstitutional law or common law, a confession or inculpatory statement will be suppressed” if the conduct of the police has overborne the defendant’s will to resist and produces a statement that was not freely self-determined. Ball v. State, 347 Md. 156, 178-79 , 699 A.2d 1170 (1997), cert. denied, 522 U.S. 1082 , 118 S.Ct. 866 , 139 L.Ed.2d 763 (1998).

Put another way, a custodial statement is inadmissible unless it is “ ‘shown to be free of any coercive barnacles that may have attached by improper means to prevent the expression from being voluntary.’ ” Burch v. State, 346 Md. 253, 266 , 696 A.2d 443 , cert. denied, 522 U.S. 1001 , 118 S.Ct. 571 , 139 L.Ed.2d 410 (1997) (quoting Hillard v. State, 286 Md. 145, 150 , 406 A.2d 415 (1979)); see In re Joshua David C., 116 Md.App. 580, 598 , 698 A.2d 1155 (1997). Coercion may be physical or psychological. See State v. Kidd, 281 Md. 32, 36 , 375 A.2d 1105 , cert. denied, 434 U.S. 1002 , 98 S.Ct. 646 , 54 L.Ed.2d 498 (1977). Ultimately, the voluntariness of a statement turns on “the totality of all of the attendant circumstances.” Burch, 346 Md. at 266 , 696 A.2d 443 ; see Winder v. State, 362 Md. 275, 307 , 765 A.2d 97 (2001); Gilliam v. State, 320 Md. 637, 650 , 579 A.2d 744 (1990), cert. denied, 498 U.S. 1110 , 111 S.Ct. 1024 , 112 L.Ed.2d 1106 (1991).

In Hof, the Court explicated the factors relevant to the “totality of the circumstances” standard. The factors include where the interrogation was conducted; its length; who was present; how it was conducted; its content; whether the defendant was given Miranda warnings; the mental and physical condition of the defendant; the age, background, experience, education, character, and intelligence of the defendant; when the defendant was taken before a court commissioner following arrest; and whether the defendant was physically mistreated, [or] physically intimidated or psychologically pressured. Hof, 337 Md. at 596-97 , 655 A.2d 370 (citations omitted). Although there are many relevant factors, courts must consider the particulars of each case.

Cf. United States v. Arvizu, ⁵²⁰ 534 U.S. 266, 273 , 122 S.Ct. 744, 750 , 151 L.Ed.2d 740 (2002) (recognizing that determination of reasonable suspicion requires consideration by courts of “the ‘totality of the circumstances’ of each case----”). In determining the voluntariness of a confession under the federal Constitution and the Maryland Declaration of Rights, the Supreme Court’s decision in Colorado v. Connelly, supra, 479 U.S. 157 , 107 S.Ct. 515 , provides guidance. There, the Supreme Court held that “coercive police activity” is a necessary element to finding a confession involuntary.

Id. at 167 , 107 S.Ct. 515 . The Court stated: “Absent police conduct causally related to the confession, there is simply no basis for concluding that any state actor has deprived a criminal defendant of due process of law.” Id. at 164 , 107 S.Ct. 515 (footnote omitted). A contrary rule, the Supreme Court reasoned, would require “sweeping inquiries into the state of mind of a criminal defendant who has confessed, inquiries quite divorced from any coercion brought to bear on the defendant by the State.” Id. at 167 , 107 S.Ct. 515 . To be sure, the use of police deception is a proper consideration in regard to voluntariness.

Indeed, courts have suppressed statements found to be the product of excessively deceptive conduct. See, e.g., United States v. Tarlowski, 305 F.Supp. 112, 124 (E.D.N.Y.1969) (focusing on law enforcement’s trickery in obtaining inculpatory information from a suspect; suppressing statement because federal agent deceived the accused into believing that he was the subject of civil litigation rather than a criminal investigation); Alexander v. United States, 390 F.2d 101, 110 (5th Cir.1968) (recognizing that, “[i]n order for the response