Whittington v. State

• Citation: 809 A.2d 721,147 Md. App. 496
• Decision Date: 31 October 2002
• Docket Number: No. 1143,1143
• Parties: Sirena Catura WHITTINGTON, v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

809 A.2d 721

147 Md. App. 496

Sirena Catura WHITTINGTON, v. STATE of Maryland.

No. 1143, Sept. Term, 2001.

Court of Special Appeals of Maryland.

October 31, 2002.

Bradford C. Peabody, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Diane E. Keller, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Baltimore and Jack Johnson, State's Atty. for Prince George's County, Upper Marlboro, on the brief), for appellee.

Submitted before HOLLANDER, JAMES R. EYLER and SONNER, JJ. 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 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 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 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 entered 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 Bergstrom.

Detective Samuel Smith met with appellant at around 3:30 a.m. At 3:35 a.m. Detective Hoffman entered the room for the purpose of removing appellant's money and jewelry. Smith recalled that appellant asked, "how could the police arrest someone [if] they didn't have a gun?" She 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. Frankenfield claimed that appellant never asked to speak to an attorney, nor did she decline to speak to him. Moreover, he did not threaten or coerce her, nor did he wear a weapon while in the room with appellant.

Detective Frankenfield recalled that appellant told him about her marriage and discussed her belief that her husband was "...