Dempsey v. State

Decision Date03 March 1976
Docket NumberNo. 21,21
Citation277 Md. 134,355 A.2d 455
PartiesMichael Joseph DEMPSEY v. STATE of Maryland.
CourtMaryland Court of Appeals

Victoria A. Salner, Asst. Public Defender (Alan H. Murrell, Public Defender and Geraldine Kenney Sweeney, Asst. Public Defender, Baltimore, on the brief), for appellant.

Albert G. Warfield, III, Asst. Atty. Gen (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and O'DONNELL, JJ.

ELDRIDGE, Judge.

In the course of petitioner Dempsey's trial on charges of breaking and entering and grand larceny, the State offered in evidence Dempsey's alleged confession admitting the commission of the crimes, and Dempsey objected on the ground that the statement was not voluntary. The trial judge then conducted a hearing on the voluntariness of the confession out of the jury's presence. After the hearing, the trial judge instructed the jury that during its absence the court had heard testimony concerning the voluntary nature of a statement allegedly made by Dempsey, that the jury would hear the same testimony, that the court 'has found by a preponderance of the evidence that the statement was voluntary' and that 'it was a voluntary statement in every regard.' The court went on to tell the jury that the ultimate determination of voluntariness was for the jury, and that if the jury found that Dempsey's statement was voluntary and should be believed, then the jury should give the statement whatever weight it deserved. The question before us is whether, under the circumstances of this case, the portion of the trial judge's instruction concerning the court's finding of voluntariness constituted reversible error. We hold that reversible error was committed, and that Dempsey is therefore entitled to a new trial.

Pursuant to Maryland Rule 828 g, the parties have submitted this case upon an agreed statement of facts which, with a few minor wording changes not affecting substance, is as follows:

'In the early morning hours of November 10, 1973, (a Saturday), a Cambridge, Maryland bar known as the Lantern Inn was broken into and beer, cigarettes and coins were taken. On the following Monday petitioner Michael Dempsey was approached by Cambridge City policeman Wilson Majors with regard to the break-in and theft, and Dempsey accompanied Officer Majors to police headquarters where he allegedly gave a written statement admitting his guilt in the crimes. This confession was used against Dempsey at trial. The only other evidence at trial tending to link Dempsey with the crimes was the fact that nine rolls of coins and some beer cans of the same brand that had been taken from the Lantern Inn were found in Dempsey's hotel room.

'Before allowing the State to mention the confession, the trial court dismissed the jury, conducted a hearing on the issue of voluntariness, and determined that the statement was admissible. When the jury returned, the court gave the following instruction:

'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 to this instruction. Evidence on voluntariness was then presented to the jury and the confession was introduced.

'The State's evidence consisted of testimony from Officer Majors and from Dianna Webster, secretary for the Cambridge City Police Department.

'Officer Majors testified that on Monday he had gone to the Cambridge Hotel, where Dempsey was staying, and had told Dempsey that he was suspected of having broken into the Lantern Inn. Dempsey had been drinking and his hotel room contained a number of full and empty beer cans; however, it did not appear to Majors that he was intoxicated. Majors asked Dempsey to come to police headquarters for questioning and Dempsey consented. Dempsey finished one beer, then picked up another beer and drank it on the way to the station. Upon arrival Majors gave Dempsey the Miranda warnings (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966)), which Dempsey said he understood, and Dempsey signed a waiver of rights form. Dempsey was not threatened or offered any inducements and he answered questions straightforwardly and voluntarily.

'Dianna Webster testified that she was present in the room when Officer Majors read the Miranda warnings to Dempsey. She saw Dempsey sign both the waiver form and the subsequent statement. He appeared normal, appeared to understand his rights, and did not indicate in any way that he didn't know what he was doing. Mrs. Webster further testified that Dempsey had not been threatened or induced and that the statement seemed to her to be purely voluntary. She also stated that as Dempsey signed his statement he said, 'You realize I'm signing my life away.'

'The evidence presented by the defense consisted of testimony from Dempsey and from his wife, Lynn Dempsey.

'Michael Dempsey testified that he had a drinking problem and had been drinking continuously, with intermittent sleep, for two days prior to Officer Majors's arrival at his hotel room. Dempsey remembered accompanying Officer Majors to police headquarters but could not remember what he and Majors talked about. He also could not remember whether Majors read any warnings to him, or whether he signed a waiver of rights form. Dempsey said he was not denying that he signed the form, but the name on the form was not his normal signature. He further testified that his excessive drinking caused him to have 'blackout spells,' which accounted for his hazy memory about the events at the police station.

'Lynn Dempsey testified that she was with Michael Dempsey, her husband, in his hotel room from about 1:00 p. m. on Saturday until Officer Majors's arrival the following Monday, and that her husband had been drinking steadily, without eating, for the entire two days. She said that her husband was awake and drinking when she woke up on Monday morning and that he was drunk when he and Majors left the hotel room. Although Michael Dempsey wasn't staggering, his eyes were bloodshot and he was in a careless, happy mood. Mrs. Dempsey said further that she did not think her husband really understood what Officer Majors was talking about and that it seemed to her as if he though Majors was 'putting him on.'

'Following introduction of the confession, the State rested, closing arguments were heard and the trial court instructed the jury. The court defined 'reasonable doubt' and told the jury that each element of the offense must be proved beyond a reasonable doubt. However, no further mention of the confession or of the jury's task with regard to the confession was made. The jury deliberated for ten minutes and returned a verdict 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 concerning the voluntariness of the confession nor moved to strike it nor requested a clarifying instruction, and that therefore the court would not ordinarily consider the matter on appeal. Nevertheless, the court decided in this case to consider the merits of the instruction under the plain error doctrine. The Court of Special Appeals went on to hold that the procedure followed by the trial judge was improper, and that where trial courts conclude after a hearing out of the jury's presence that a statement of the accused was voluntary, the court's decision '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.' However, the majority of the Court of Special Appeals held that the error was harmless because 'there was no credible evidence refuting or contradicting testimony that . . . the statement of the accused was freely and voluntarily given,' and thus the jurors would not likely have reached a different conclusion if the trial judge's view as to voluntariness had not been made known to them. Judge Davidson, in a dissenting opinion, disagreed with the majority holding that the error was harmless. Judge Davidson was of the view that there was evidence of Dempsey's mental incapacitation by alcohol which, if believed by the jury, would have been sufficient for the jury to have concluded that Dempsey's confession was involuntary. This Court thereafter granted Dempsey's petition for a writ of certiorari. No. cross-petition was filed by the State.

In this Court, Dempsey of course agrees with the majority below that the trial court's instruction concerning the voluntariness of the confession was improper; the thrust of his argument is that the error was harmful and thus denied him a fair trial. The State, on the other hand, advances essentially three arguments for affirmance of the decision below: (1) since Dempsey did not object to the challenged instruction, the matter is not reviewable on appeal, and the instruction, even if erroneous, was 'not so blatantly prejudicial as to give rise to the invocation of the 'plain error' doctrine'; (2) the...

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