Carder v. State

• Decision Date: 17 December 1968
• Docket Number: No. 44,44
• Citation: 248 A.2d 495,5 Md.App. 531
• Parties: Ralph Carl CARDER, Jr. v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 531

5 Md.App. 531

248 A.2d 495

Ralph Carl CARDER, Jr. v. STATE of Maryland.

No. 44.

Court of Special Appeals of Maryland.

Dec. 17, 1968.

C. Orman Manahan, Ellicott City, for appellant.

Frank A. DeCosta, Jr., Asst. Atty. Gen., Francis B. Burch, Atty. Gen., Baltimore, Marvin H Anderson, State's Atty. for Anne Arundel County, Annapolis, Cornelius F. Sybert, Jr., State's Atty. for Howard County, Ellicott City, on brief for appellee.

Before ANDERSON, MORTON, ORTH and THOMPSON, JJ.

ANDERSON, Judge.

Appellant, Ralph Carl Carder, Jr., was tried in the Circuit Court for Howard County by a jury, Judge (now Chief Judge) James Macgill presiding, for the murder of his infant daughter, Brenda Jane Carder. On February 28, 1964, the jury returned a verdict of guilty of murder in the first degree without capital punishment and appellant was sentenced to life imprisonment in the Maryland Penitentiary. On March 1, 1966, Judge Macgill granted appellant a belated appeal to this Court. ¹

Appellant submits six questions to be decided by this Court on appeal. They are as follows:

1. Did the refusal of the trial court to include in the voir dire certain questions suggested by appellant amount to error?

2. Were the verbal admissions or confessions made to the witnesses, Mr. Offenbacker and Corporal Greffen, voluntarily made?

3. Did the principles enunciated in the case of Miranda v. Arizona apply as to the verbal admissions or confession made to the witnesses, Mr. Offenbacker and Corporal Greffen, when on its face the conviction appeared to have become final, when it did not become final through ordinary judicial processes?

4. Did the oral admissions or confession of the accused meet the test of voluntariness in view of the appellant's physical condition at the time of the alleged admissions or confession?

5. Did the principles enunciated in the case of Schowgurow v. State (240 Md. 121, 213 A.2d 475) apply even though on its face the conviction had become final, when it had not become final through the ordinary judicial processes?

6. Did the trial court err in admitting in evidence photographs concerning the alleged crime?

The jury sitting in the court below, as trier of the facts, could find from the evidence that on March 14, 1963, the appellant returned from work to his home in Baltimore City and found his young wife, Ruth Naomi Carder, writing a love letter to his cousin, in which was enclosed a check for $5.00. A quarrel ensued and it was agreed that they would take a drive in the family car to discuss the future of their marriage. The appellant owned a high-powered rifle which he used for hunting and protection while working at a filling station. He got the gun, wrapped it in a blanket, and was seen entering the family car with his wife and two small daughters, Brenda Jane and Barbara Sue. After driving for some two hours, he stopped the car in a sparsely inhabited spot in Anne Arundel County off Furnace Road. A discussion ensued between him and his wife during which she demanded the return of the letter he had in his possession. When he refused, she picked up the gun from under the front seat and, according to his testimony, shot him through the chest. Appellant then got possession of the rifle and shot his wife through the head, inflicting a mortal wound. He then shot each of the infant children who were seated in the rear seat of the automobile, inflicting mortal wounds upon each. Following the shooting of the infant children, appellant shot himself through the mouth, taking away a large part of his jawbone.

Some two hours later, at approximately 4:40 p. m., he was discovered near the highway some sixty feet from the automobile by passing motorists, one of whom was the civilian witness, George J. Offenbacker. When he first observed the appellant he was in a kneeling position some 10 to 15 feet off Furnace Road, with his head between his knees. He walked over to appellant, who was then lying on his stomach, and asked him what happened. Appellant stated that he had shot his wife and two children and had then shot himself. The witness walked back to where the car was parked and observed, inside the automobile, appellant's wife and one child and a coat on the back seat. He observed a rifle lying behind the automobile. He then walked back to the appellant and put a hankerchief on his back where he was bleeding. The State Police had been called and arrived some 3 minutes later. The first to arrive was Trooper Weaver. He examined the appellant and found that a portion of his jawbone had been shot away and that there was also a wound in his back just below his left shoulder blade. He then proceeded some 60 feet back to where the automobile was parked. Upon looking in the car, he observed a white woman in the front seat with the top portion of her head missing. On the back seat were two children, both of whom were dead. He also observed a Winchester rifle lying 15 feet to the rear of the parked car. Appellant muttered that there was a note in his wallet which would explain everything. The letter referred to was in his wallet and was the same letter that his wife was writing to his cousin when appellant returned home to get his work shoes. Corporal Charles F. Greffen, accompanied by Trooper Lawrence, arrived at approximately 4:55 p. m., at which time there were present Trooper Weaver and George Offenbacker. He observed appellant lying in a dirt road some 30 yards off Furnace Road. He was suffering from a wound to his face and a wound in the left side of his chest. He walked over to appellant and asked him his name, to which he replied his name was Ralph Carder. He asked him if he thought he was going to die and he said, 'Yes.' He then asked him 'if he shot the people in the car', to which appellant replied, 'Yes.'

Appellant took the stand in his own behalf. He testified that his wife asked for the letter back when he threatened to show it to others. He refused and she threatened to shoot him. He replied, 'Shoot and be damned.' She apparently fired the gun, shooting him in the chest. He then got possession of the gun and shot her and afterwards shot himself. He testified that he had no independent recollection of how the two young children were shot.

I

Appellant's first contention is that the trial court committed error in refusing to propound to the jurors certain questions upon voir dire submitted by appellant.

The trial judge on his own initiative propounded the following questions to the prospective jurors (a) 'Have you formed or expressed any opinion as to the guilt or innocence of the accused?

(b) 'Do you feel you could render a verdict in this case based on the law and the evidence, and the law and the evidence alone, uninfluenced by anything you may have heard or read about this case?

(c) 'Do you feel that your mind is perfectly free and clear from all prejudice or bias of any kind that might prevent you from rendering a proper verdict?

(d) 'Have you any conscientious scruples against inflicting capital punishment?'

Counsel for appellant then submitted a list of sixteen proposed questions to be propounded to the prospective jurors. From these sixteen questions, the court propounded the following five:

(1) 'Have any members of the panel ever read about the pending criminal case in the newspapers?

(2) 'Have any members of the panel ever heard about the pending criminal case by radio or television?

(3) 'Have any members of the panel discussed or participated in discussions in their home or community regarding the criminal offense alleged by the State to have been committed by Ralph Carder?

(5) 'Has any of the immediate family, a relative or close personal friend of any of the members of the jury panel ever been a homicide victim?

(13) 'Are any members of the panel, their immediate family or relatives now or ever been employed by any law enforcement agencies, whether County, Federal or State, including but not limited to the office of the Prosecutor?'

To each of the above questions, the respective jurors answered in the negative.

The appellant excepted tot he refusal of the trial judge to ask the following three questions requested by him from the list of sixteen submitted. These questions were:

(9) 'Do the members of the panel understand that if, from the evidence presented, it is shown that at the time of the alleged commission of the act of murder, that Ralph Carder did not know the nature and quality of the act he was doing, or if he did know, that he was not conscious that the act was one which he ought not to do, then the jury is to find that Ralph Carder is not guilty?

(10) 'Do the members of the jury panel understand that Ralph Carder is presumed to be innocent and that the State has the burden to prove beyond any reasonable doubt that Ralph Carder has committed the offense charged in the indictment?

(11) 'Do any members of the jury panel noe entertain any prejudice against Ralph Carder by reason of the nature of the crime charged?'

Appellant cites no authority in support of his contention that there was error on the part of the court in refusing to ask questions nine and ten. Both questions sought to elicit the jury's understanding of the law and are not proper voir dire questions. McIntyre and Davis v. State, 1 Md.App. 586, 589, 232 A.2d 279. The purpose of a voir dire examination is to ascertain whether the prospective jurors are free from bias or prejudice and capable of making objective and impartial determinations. Bristow v. State, 242 Md. 283, 288, 289, 219 A.2d 33; Giles v. State, 229 Md. 370, 378, 379, 183 A.2d 359; Brown v. State, 220 Md. 29, 36, 150 A.2d 895; McIntyre and Davis v. State, supra, 1 Md.App. 589, 232 A.2d 279. In McGee v. State, 219 Md. 53,...