Dempsey v. State, 128
Decision Date | 19 December 1974 |
Docket Number | No. 128,128 |
Citation | 24 Md.App. 8,330 A.2d 204 |
Parties | Michael Joseph DEMPSEY v. STATE of Maryland. |
Court | Court of Special Appeals of Maryland |
William O. Goldstein, Assigned Public Defender, Baltimore, for appellant.
James I. Keane, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., and William B. Yates, II State's Atty., for Dorchester County, on the brief, for appellee.
Argued before MOYLAN, MENCHINE and DAVIDSON, JJ.
Michael Joseph Dempsey was convicted of breaking and entering and Grand Larceny by a jury in the Circuit Court for Dorchester County. He was sentenced to concurrent ten years terms. His appeal asks:
'1. Did the instruction to the jury subsequent to the preliminary hearing on the Motion to Suppress the confession deny a fair and impartial trial within the constitutional framework of the Fourteenth and Fifth Amendments of the Constitution of the United States?
2. Was there sufficient evidence to convict the Defendant of breaking and entering and grand larceny?'
When it appeared to the trial judge that the State would offer and that appellant would contest admissibility of an alleged confession, a hearing was conducted out of the presence of the jury to determine the preliminary issue in accordance with procedures recommended in Smith v. State, 189 Md. 596, 606, 56 A.2d 818, 822-823. The arresting police officer, Cpl. Wilson Majors, and Dianna Webster, a secretary employed by the Cambridge Police Department, testified at the hearing at the instance of the State. The defendant and his wife also testified. The trial judge found that the proffered confession 'was voluntarily made after proper warning.'
When the jury was brought back to the courtroom the trial judge addressed them as follows:
There was no objection; no motion to strike; and no request for a clarifying or advisory instruction. It is plain accordingly, that the contention now made was not raised and decided in the trial court and ordinarily would not be considered on appeal. Rule 1085. See: Robinson v. State, 249 Md. 200, 216, 238 A.2d 875, 884-885. Appellant maintains, however, that the remarks of the trial judge were so prejudicial to the rights of the accused as to deny him a fair and impartial trial and that we should take cognizance of the matter as plain error, citing Barnhart v. State, 5 Md.App. 222, 246 A.2d 280.
We observe that the course followed by the trial judge did not follow recommendations made in prior decisions of the Court of Appeals and this Court. In Linkins v. State, 202 Md. 212, at 221-222, 96 A.2d 246, at 250-251, the Court of Appeals declared:
(Italics supplied.)
In Barnhart v. States, supra, we said at 229 of 5 Md.App., at 285 of 246 A.2d:
'* * * the court should have made clear to the jury that its rulings merely declared that evidence produced before the court was sufficient to have the confession go to the jury; that the admission of the confession did not signify that it was thereby demonstrated or proved to be freely and voluntarily made beyond a reasonable doubt, admissibility falling short of such proof as being based only on prima facie proof; and that the ultimate determination of the jury as to voluntariness was to be only on evidence and rational inferences therefrom before them.' (Italics supplied.)
We shall again urge trial courts conducting preliminary hearings upon the admissibility of a confession in jury trials to adopt the following procedure at its conclusion: (a) if the trial court concludes during a preliminary hearing that a statement of the accused was involuntary, its decision should be placed upon the record out of the presence of the jury with no reference to such statement being made in their presence; (b) if the trial court concludes from all of the evidence that the State has shown by a preponderance of the evidence that it was voluntary, its decision also should be placed upon the record out of the presence of the jury without comment in their presence beyond the overruling of objection to its admission. The court may, if it feels that some comment to the jury is necessary or desirable to explain their temporary exclusion from the proceedings, inform them that the hearing was necessary to enable the court to determine whether certain disputed evidence was admissible in the proceedings before the jury. The trial court, however, should avoid any comment to the jury that a determination had been made that such statement meets constitutional standards, or that it was freely and voluntarily given. Such a determination is an issue directed to the jury alone.
This is not to say that the remarks of the trial court in the subject case justify reversal. It was a necessary preliminary duty of the trial court to make a determination as to the admissibility of the statement of the accused. The Court of Appeals of Maryland in Smith v. State, supra, said at 603-604 of 189 Md., 821-822 of 56 A.2d:
This Court in Mulligan v. State, 18 Md.App. 588 at 601, 308 A.2d 418, 425 said:
"Preponderance' (of evidence) is defined in Black's Law Dictionary 1344 (rev. 4th ed. 1968) to mean the '(g)reater weight of evidence, or evidence which is more credible and convincing to the mind.'
'In Smith v. State, supra, and other Maryland decisions, the term prima facie is used. That type of evidence has been defined to mean, '. . . good and sufficient on its face; such evidence as, in the judgment of the law, is sufficient to establish a given fact, or the group or chain of facts constituting the party's claim or defense, and which if not rebutted or contradicted, will remain sufficient.' Black's Law Dictionary, supra, at 1353-1354.
'A perusal of Smith v. State, supra, and the other Maryland decisions to which we have referred in n. 8, supra, leads us to the inescapable conclusion that while Maryland has articulated that the evidence must be prima facie, it has, nevertheless, continuously been applying the preponderance of the evidence standard that a confession be freely and voluntarily made before it is admissible.' (Footnote omitted.)
In the subject case although the trial judge pointed out to the jury that he had determined that the statement met this test of admissibility, he was careful to point out to the jury that it was that body's function to determine whether the statement had been freely and voluntarily made after Miranda warnings, and that decision upon that issue must be justified by proof satisfactory to them beyond a reasonable doubt.
Appellant places his chief reliance upon Barnhart, supra. We regard that case, however, as readily distinguishable. It is true that upon our own motion we did reverse in Barnhart, supra, although no objection had been made to the comments of the trial judge in that case. We believe, however, that the subject case is controlled by our decision in McCarson v. State, 8 Md.App. 20 at 22-23, 257 A.2d 471, at 473. McCarson distinguished Barnhart, supra, in language equally pertinent here, saying:
'The appellant also contends that the court erred in announcing its preliminary decision in the presence of the jury, in that by so doing it usurped a function of the jury. At the close of the evidence received out of the presence of the jury, the judge announced his decision in the jury's presence. The transcript reads:
Mr. Wilson (defense counsel): Yes, sir.'
In the circumstances, considering the appellant's failure to contradict or refute the evidence that the confession was voluntary, to object to its admission and to request instructions on the issue, we see no prejudicial error requiring reversal. The instant case is readily distinguishable on the facts from Barnhart v. State, 5 Md.App. 222, 246 A.2d 280, where the judge, after hearing evidence without the jury, indicated to...
To continue reading
Request your trial-
Dempsey v. State
...of guilty to both counts.' Upon Dempsey's appeal, the Court of Special Appeals, with one judge dissenting, affirmed. Dempsey v. State, 24 Md.App. 8, 330 A.2d 204 (1974). The majority of the Court of Special Appeals first pointed out that Dempsey had neither objected to the jury instruction ......
-
Ocean City Bd. of Sup'rs of Elections v. Gisriel
...v. State, 280 Md. 132, 368 A.2d 1019 (1977); Washington Homes, Inc. v. Baggett, 23 Md.App. 167, 326 A.2d 206 (1974); Dempsey v. State, 24 Md.App. 8, 330 A.2d 204 (1974), rev'd on other grounds, 277 Md. 134, 355 A.2d 455 Appellants raise this issue "for the purpose of avoidance of remand for......
-
Franklin v. State
...trial, and this record supplies no answers to those questions. Cummings v. State, 27 Md.App. 361, 341 A.2d 294 (1975); Dempsey v. State, 24 Md.App. 8, 330 A.2d 204 (1974); Mundell v. State, 244 Md. 91, 223 A.2d 184 (1966); Bryant v. State, 229 Md. 531, 185 A.2d 190 As we read Sabatini, we a......
-
Hebb v. State
...289 A.2d 575, 579 (1972). See also Dempsey v. State, Md., 355 A.2d 455 (Ct.App. filed March 3, 1976), reversing Dempsey v. State, 24 Md.App. 8, 330 A.2d 204 (1974). We made clear, in the second Mulligan decision, 610 Md.App. at 432, 271 A.2d at 387 that 'The trial judge's conclusion that th......