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

Page 8

24 Md.App. 8

330 A.2d 204

Michael Joseph DEMPSEY v. STATE of Maryland.

No. 128.

Court of Special Appeals of Maryland.

Dec. 19, 1974.

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.

MENCHINE, Judge.

Michael Joseph Dempsey was convicted of breaking and entering (Art. 27, § 32, Annotated Code of Maryland, 1971 Repl. Vol.) 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?'

Fair Trial

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:

'Mr. Thomas and ladies and gentlemen, while you were not in the courtroom the Court heard testimony relating to the voluntary nature of a statement allegedly made by the defendant. You will hear the same testimony that the court heard. The Court has found by a preponderance of the evidence that the statement was voluntarily made after proper warnings and that it was a voluntary statement in every regard. Now the same evidence will be given to you, and you will have the ultimate determination of deciding whether the statement was voluntary and whether it should be believed, and, of course, you make that determination beyond a reasonable doubt. If you find that it was voluntary, that it should be believed, then you give it the weight that you think it deserves, as you do any other evidence.'

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:

'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 which we call proof.' (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:

'* * * 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. 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.'

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:

'(The jury returned to the jury box, and the following transpired in the presence of the jury:)

The Court: I will rule the statement is voluntary and admissible. Of course, you have your exception.

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...