State v. Kidd

• Decision Date: 18 July 1977
• Docket Number: No. 154,154
• Citation: 375 A.2d 1105,281 Md. 32
• Parties: STATE of Maryland v. Bruce D. KIDD.
• Court: Maryland Court of Appeals

Page 32

281 Md. 32

375 A.2d 1105

STATE of Maryland v. Bruce D. KIDD.

No. 154.

Court of Appeals of Maryland.

July 18, 1977.

Deborah K. Handel, Asst. Atty. Gen., Baltimore (Francis B. Burch, Atty. Gen., and Clarence W. Sharp, Asst. Atty. Gen., Baltimore, on the brief), for appellant.

Alfred L. Scanlan, Washington, D.C. (Shea & Gardner, Washington, D.C., on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

ORTH, Judge.

I

In a criminal cause, when the prosecution introduces an extrajudicial confession or admission ¹ given by the defendant to the authorities, the basic rule is that it must, upon proper challenge, establish by a preponderance of the evidence that the statement was obtained (1) voluntarily, and (2) in conformance with the dictates of Miranda v. State of Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

(1)

The first requisite is bottomed upon constitutional grounds. In Bram v. United States, 168 U.S. 532, 542, 18 S.Ct. 183, 187, 42 L.Ed. 568 (1897), the Supreme Court of the United States declared:

In criminal trials, in the courts of the United States, wherever a question arises whether a confession is incompetent because not voluntary, the issue is controlled by that portion of the fifth amendment to the constitution of the United States commanding that no person "shall be compelled in any criminal case to be a witness against himself."

Any doubt that the admissibility in a state criminal prosecution is tested by the same standard, applied in federal prosecutions since 1897 under the Bram holding, ² was laid to rest by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964): "(T)he person must not have been compelled to incriminate himself. . . . Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth. . . . The Fourteenth Amendment secures against state invasion the same privilege that the Fifth Amendment guarantees against federal infringement the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will, and to suffer no penalty . . . for such silence." Id. at 7-8, 84 S.Ct. at 1493.

The imposition upon the state of the federal constitutional prohibition against compelled self-incrimination effected no change in the voluntariness requirement followed by Maryland for the admissibility of confessions and admissions. More than a century ago, in Nicholson v. State, 38 Md. 141, 153 (1873) this Court said that "it is very clear upon all the authorities, that if the confession of the (accused) had been induced by any threat of harm, or promise of worldly advantage held out to him . . . it ought to be excluded." The crucial test was succinctly put in Taylor v. State,238 Md. 424, 429, 209 A.2d 595, 598 (1965): "If freely and voluntarily given, it is admissible; if not, it is inadmissible." For a statement to be the free and voluntary act of an accused, it must be obtained without force applied, coercion used, hope held out or promise made on the part of the authorities. Abbott v. State, 231 Md. 462, 465, 190 A.2d 797 (1963). In other words, a confession or admission is not "voluntary" if it is the product of physical or psychological coercion. This test has been referred to as voluntariness in the traditional sense, and we shall so refer to it here.

(2)

Miranda v. State of Arizona, supra, 384 U.S. at 478, 86 S.Ct. at 1630, expressly affirmed that "(a)ny statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. . . . Volunteered statements of any kind are not barred by the Fifth Amendment . . . ." The Supreme Court said in Davis v. State of North Carolina, 384 U.S. 737, 740, 86 S.Ct. 1761, 1764, 16 L.Ed.2d 895 (1966): "The review of voluntariness in cases in which the trial was held prior to our decisions in Escobedo (v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964)) and Miranda is not limited in any manner by these decisions (Davis and Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966) in which Miranda was held to be applied prospectively only)."

Miranda held:

the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. ³ Id. 384 U.S. at 444, 86 S.Ct. at 1612.

Thus, Miranda impressed procedural safeguards on the traditional test of voluntariness. The procedural safeguards are warnings to be given. They were expressly set out and explained in detail in Miranda, supra, 384 U.S. at 444 and 479, 86 S.Ct. 1602, and their familiarity in the law makes it unnecessary to repeat them here. These warnings are not in themselves rights protected by the Constitution but are instead measures to insure that the privilege against compulsory self-incrimination is protected. Michigan v. Tucker, 417 U.S. 433, 444, 94 S.Ct. 2357, 41 L.Ed.2d 182 (1974). Thus, they have no constitutional basis, but are prophylactic rules created by judicial decision to safeguard that constitutional privilege. Id. at 445-446, 94 S.Ct. 2357. The defendant may waive effectuation of the Miranda safeguards, provided the waiver is made voluntarily, knowingly and intelligently, but until such warnings and waiver are demonstrated by the prosecution at trial, no evidence obtained through an interrogation can be used against him. Miranda v. State of Arizona, supra, 384 U.S. at 449 and 479, 86 S.Ct. 1602.

As we have indicated, the burden is on the State of proving that a confession or admission is voluntary in the traditional sense and that there has been compliance with the Miranda safeguards. "It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession . . . . Equally clear is the defendant's constitutional right at some stage in the proceeding to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession." Jackson v. Denno, 378 U.S. 368, 376-377, 84 S.Ct. 1774, 1781, 12 L.Ed.2d 908 (1964). This determination must "appear from the record with unmistakable clarity." Sims v. Georgia, 385 U.S. 538, 544, 87 S.Ct. 639, 643, 17 L.Ed.2d 593 (1967). In Maryland, two steps are involved in this procedure, which is applicable to a case tried before a jury, Day v. State, 196 Md. 384, 399, 76 A.2d 729 (1950), and without a jury, Ralph v. State, 226 Md. 480, 487, 174 A.2d 163 (1961), cert. denied, 369 U.S. 813, 82 S.Ct. 689, 7 L.Ed.2d 613 (1962). The trier of fact passes on traditional voluntariness only after the judge, upon a hearing, out of the presence of the jury, has fully and independently resolved the issues against the accused. Jackson v. Denno, supra, 378 U.S. at 378, 84 S.Ct. 1774. See Dempsey v. State, 277 Md. 134, 143-146, 355 A.2d 455 (1976); Gill v. State, 265 Md. 350, 357-358, 289 A.2d 575 (1972); Sabatini v. State, 14 Md.App. 431, 449-451, 287 A.2d 511, cert. denied, 265 Md. 742 (1972); Mulligan v. State, 10 Md.App. 429, 431-433, 271 A.2d 385 (1970); Murphy v. State, 8 Md.App. 430, 436-437, 260 A.2d 357 (1970); Barnhart v. State, 5 Md.App. 222, 223-227, 246 A.2d 280 (1968). The federal constitutional test with respect to the judge's preliminary decision is that of a preponderance of the evidence, Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 30 L.Ed.2d 618 (1972), and the test with respect to the final determination by the trier of fact is beyond a reasonable doubt, Linkins v. State, 202 Md. 212, 223, 96 A.2d 246 (1953).

The burden upon the State to establish affirmatively the admissibility of the confession or admission arises upon proper objection. Wainwright v. Sykes, --- U.S. ----, ----, 97 S.Ct. 2497, 52 L.Ed.2d --- (1977). See Jackson v. Denno, supra, 378 U.S. at 380, 84 S.Ct. 1774; Tucker v. State, 237 Md. 422, 425, 206 A.2d 691 (1965); Gaudio and Bucci v. State, 1 Md.App. 455, 463, 230 A.2d 700 (1967). The requirement of a proper challenge applies to both aspects of admissibility constitutional voluntariness and compliance with Miranda's prophylactic safeguards. Fundamental rights can be waived by an accused, State v. McKay, Md., 375 A.2d 228 (1977) and the right to a hearing and determination by the trial judge of the admissibility of a confession or admission provides no exception. State procedural requirements governing assertion and pursuance of direct and collateral constitutional challenges to criminal prosecutions must be respected. Mapp v. Ohio, 367 U.S. 643, 658, n. 9, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). See Porter v. State, 230 Md. 535, 536-537, 187 A.2d 870 (1963).

In Maryland, objection to the admission of evidence is governed by Maryland Rule 522 d, made applicable to criminal causes by Rule 725 f. The Rule encompasses the admissibility of confessions and admissions. Objection to the admission of evidence is treated as waived unless made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, Rule 522 d 2, and unless requested by the court, it is not necessary to state the grounds for the objection, Rule 522 d 1. Thus, "where the trial court does not request a statement of the grounds for an objection, a general objection is sufficient to preserve all grounds which may exist. . . ." von Lusch v. State, 279 Md. 255, 262-263, 368 A.2d 468, 472 (1977). "On the other hand, where the trial court does request specific grounds for an objection, the objector is bound by...