Barnhart v. State, 10

• Decision Date: 07 October 1968
• Docket Number: No. 10,10
• Citation: 5 Md.App. 222,246 A.2d 280
• Parties: Donald Elwood BARNHART v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 222

5 Md.App. 222

246 A.2d 280

Donald Elwood BARNHART v. STATE of Maryland.

No. 10.

Court of Special Appeals of Maryland.

Oct. 7, 1968.

Howard W. Gilbert, Hagerstown, for appellant.

Fred Oken, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., David K. Poole, Jr., and Lynn F. Meyers, State's Atty., and Asst. State's Atty., for Washington County respectively, on the brief, for appellee.

Before MURPHY, C. J., and ANDERSON, ORTH, and THOMPSON, JJ.

ORTH, Judge.

The appellant was found guilty by a jury in the Circuit Court for Washington County of breaking a storeroom with intent to steal goods of the value of $100 or more and sentenced to imprisonment for an indeterminate period not to exceed three years. ¹ At his trial a confession made by him to the police during a custodial interrogation was admitted in evidence.

'The practice in this State, approved in many cases, is that the court first hears evidence without the jury to determine whether a confession is voluntary and should be admitted. If it decides to admit it, the same evidence is then given to the jury, as it has the final determination, irrespective of the court's preliminary decision, whether or not the confession is voluntary, and whether it should be believed. In so doing the jury is entitled to have before it all of the evidence which affects the voluntary character of the document, and which the court passed upon in admitting it.' Day v. State, 196 Md. 384, 399, 76 A.2d 729, 736.

See Peters and Demby v. State, 187 Md. 7, 15, 48 A.2d 586; Smith v. State, 189 Md. 596, 603, 56 A.2d 818; Hall v. State, 223 Md. 158, 169, 162 A.2d 751; Davis and Peterson v. State, 1 Md.App. 581, 585, 232 A.2d 535. Thus the court has the preliminary decision whether or not the confession was voluntary and the trier of facts has the final determination whether or not it was voluntary and whether or not it should be believed. The function of the court as to the preliminary decision of separate and distinct from the function of the trier of facts (the jury in a case tried by it or the court in a case tried by the court sitting without a jury) ² as to the ultimate determination. It was established as early as 1873 that the question as to whether a confession is admissible in evidence is for the court alone, Nicholson v. State, 38 Md. 140, 155-156 and the rule has been reaffirmed in numerous cases thereafter. See cases cited in Linkins v. State, 202 Md. 212, 221, 96 A.2d 246. The Court said in Linkins, at 221-222, 96 A.2d at 250:

'Admissibility does not signify that the evidence admitted has demonstrated or proved the fact to be proved, but merely that it is received by the tribunal for the purpose of being weighed with other evidence. Admissibility falls short of proof. The rule of law uttered by the judge, merely declares what is sufficient to go to the jury. The jury ultimately decides upon the total effect we call proof.'

The preliminary decision by the court, therefore, involves a mixed question of law and fact. In reaching this preliminary decision the court need not find beyond a reasonable doubt that the confession was voluntary. The only duty of the trial court at this point is to decide whether the prima facie proof was such as to establish that the confession was freely and voluntarily made. Ralph v. State, 226 Md. 480, 487, 174 A.2d 163.

'Before a confession can be admitted in evidence, the State must show, to the satisfaction of the court, that it was the free and voluntary act of an accused; that no force or coercion was exercised by the officers obtaining the confession, to cause the accused to confess; that no hope or promise was held out to an accused for the purpose of inducing him to confess. (And as to confessions obtained by a custodial interrogation in cases, the trial of which began after the decision on 13 June 1966 in Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, that the procedural safeguards therein enunciated were employed. See Gaudio and Bucci v. State, 1 Md.App. 455, 230 A.2d 700). If after a consideration of both the evidence of the State and the evidence offered by an accused (if any be offered by him) regarding the matter, the court is of the opinion that the evidence shows, prima facie, that the confession was freely and voluntarily made, it should be admitted in evidence; and if not it should be rejected.' Smith v. State, supra, 189 Md. at 603, 56 A.2d at 821. Quoted with approval in Linkins v. State, supra, 202 Md. at 222, 96 A.2d 246 and Hall v. State, supra, 223 Md. at 169, 162 A.2d 751; cited in Ralph v. State, supra, 226 Md. at 487, 174 A.2d 163. See Robinson v. State, 3 Md.App. 666, 670-671, 240 A.2d 638; cited in Wiggins v. State, 4 Md.App. 95, 105, 241 A.2d 424.

On the other hand the ultimate determination by the trier of facts is a question of fact and the confession must be found to be voluntary beyond a reasonable doubt.

'When admitted in evidence it is prima facie proof that the confession was freely and voluntarily made, but the ultimate fact is for the jury, and must be considered by it in the light of all the facts and circumstances of the case. If the jury, notwithstanding the confession is admitted, finds that from all the testimony in the case it has not been proved beyond a reasonable doubt that it was the free and voluntary expression of the accused, it should disregard the confession in the consideration of the guilt or innocence of the accused. If they do find that the proof shows beyond a reasonable doubt that the accused freely and voluntarily made the same * * * they should consider it, together with all the other facts and circumstance in evidence, in arriving at the verdict.' Linkins v. State, supra, 202 Md. at 223, 96 A.2d at 251. (Emphasis supplied.)

So the preliminary decision of the court as to the admissibility of the confession, made within the required constitutional framework, will not be disturbed on appeal unless there was a clear abuse of discretion. Cunningham v. State, 247 Md. 404, 231 A.2d 501; Robinson v. State, supra, 3 Md.App. at 671, 240 A.2d 638; Carrington v. State, 1 Md.App. 353, 230 A.2d 112. But the ultimate determination by the trier of facts as to whether or not the confession was voluntary is reviewed on appeal by applying the tests as to the sufficiency of the evidence. See Plumley v. State, 4 Md.App. 671, 245 A.2d 111; Tillery v. State, 3 Md.App. 142, 238 A.2d 125; Agresti v. State, 2 Md.App. 278, 234 A.2d 284; Hutchinson v. State, 1 Md.App. 362, 230 A.2d 352; McFadden v. State, 1 Md.App. 511, 231 A.2d 910. Of course, whether or not the confession should be believed, goes to the weight of the evidence and the credibility of the witnesses which are matters for the trier of facts. Gibson v. State, 4 Md.App. 222, 242 A.2d 204; Thompson v. State, 4 Md.App. 31, 240 A.2d 780; Sadler v. State, 1 Md.App. 383, 230 A.2d 372.

A defendant's constitutional rights are violated when his challenged confession is introduced without the preliminary decision by the trial judge of its voluntariness after an adequate hearing. Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. Since a confession by the defendant found not to be voluntary by the trial judge is not to be heard by the jury which determines guilt or innocence, the best practice is to hear evidence on the preliminary question out of the presence of the jury and the Court of Appeals has recommended such practice. Smith v. State, supra, 189 Md. at 606, 56 A.2d 818. The Supreme Court has also found that it is prudent to do so. Pinto v. Pierce, 389 U.S. 31, 88 S.Ct. 192, 19 L.Ed.2d 31. But both Smith and Pinto hold that if the confession was properly admitted it is not reversible error because the testimony on the preliminary hearing was taken in the presence of the jury; the jury were entitled to have and consider all the evidence regarding it so no harm was done to the defendant. ³ However it would be reversible error in such circumstance if the confession was inadmissible even though it was excluded and the jury instructed not to consider it as part of the evidence as knowledge of the confession by the jury is apt to unduly influence its deliberations to the extent of depriving the defendant of a fair and impartial trial. Smith v. State, supra, 189 Md. at 606, 56 A.2d 818.

In the instant case testimony as to the voluntariness of the confession, offered by the State and the appellant, was first properly taken out of the presence of the jury. At the conclusion of the evidence on the issue the court ruled that the confession was admissible. The court then said to the jury:

'Now ladies and gentlemen, the procedure we have had here, whenever the State wants to offer any written or oral statements made by any Defendant, it...