McCarson v. State

• Decision Date: 15 October 1969
• Docket Number: No. 19,19
• Citation: McCarson v. State, 8 Md.App. 20, 257 A.2d 471 (Md. App. 1969)
• Parties: Donald Ivant McCARSON v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 20

8 Md.App. 20

257 A.2d 471

Donald Ivant McCARSON v.STATE of Maryland.

No. 19.

Court of Special Appeals of Maryland.

Oct. 15, 1969.

Certiorari Denied March 10, 1970.

James F. Garrity, Baltimore, for appellant.

T. Joseph Touhey, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Donaldson C. Cole, Jr., and Julius A. Jodlbauer, State's Atty. and Asst. State's Atty. for Cecil County, respectively, on brief, for appellee.

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

ORTH, Judge.

The appellant urges that his convictions of larceny of an automobile and unauthorized use of the automobile ¹ be set aside because an oral statement obtained during a custodial interrogation of him was not shown to have been voluntarily made.

As in Edwards v. State, 7 Md.App. 108, 253 A.2d 764, the record here discloses that out of the presence of the jury the State produced evidence from which the trial judge could properly find that the statement was voluntarily obtained but did not produce the same evidence before the jury, as is customarily done.It produced evidence before the jury sufficient to show that the appellant had been advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and had waived them but adduced no evidence as to traditional voluntariness, that is that the statement was not obtained by force, violence, threats, inducements, or promises.Here, as in Edwards, the appellant made no objection to the introduction of the statement before the jury.We held in Edwards, at 113 of 7 Md.App., 253 A.2d 764, that having failed to object, the matter was not properly before us for review.Edwards is dispositive of the question.We note that the appellant here produced no evidence on the issue of voluntariness and did not contradict or refute the evidence thereon adduced by the State, either before the court, with respect to the preliminary decision to be made by the judge, seeJackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, or before the jury.He made no request for instructions on the issue and none were given.

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 the jury that he had found the confession voluntary beyond a reasonable doubt, and told the jury in admitting the confession after the evidence was received in their presence that it was his opinion that the testimony showed 'conclusively that it was freely and voluntarily given.'²We note that no objection was made to the action of the trial court in announcing its preliminary decision in the presence of the jury or to the use of the word 'voluntary.'We believe that the exception granted by the court went only to its finding and was so considered by defense counsel.Thus the point now raised, not having been tried and decided below, may be deemed to be not properly before us.Md. Rule 1085.

We think it advisable to point out that if the decision of the trial judge is that a statement was involuntary, his finding should be announced out of the presence of the jury.This decision precludes the State from using the statement; it may not be submitted to the jury and the jury had no function with regard to it.And we think it preferable, as a general rule, if the decision of the trial judge is that the...