Bellamy v. State

Thompson, J., delivered the opinion of the Court. Ralph Michael Bellamy, the appellant, was tried before a jury in the Circuit Court for Charles County and convicted of false imprisonment, robbery with a deadly weapon, carrying a handgun, and using a handgun in the commission of a felony. ⁶⁷ By this appeal the appellant presents six questions: 1. Whether the trial judge erred in refusing to instruct the jury that it must find that appellant’s confession was voluntary before considering it with the other evidence. 2. Whether the trial judge properly denied appellant’s motion to suppress his confession. 3.

Whether the charges against appellant should have been dismissed for noncompliance with the time limitations of former Art. 59, § 26. 4. Whether the trial judge unconstitutionally compelled the appellant to stand trial in prison garb. 5. Whether there was improper impeachment by the prosecutor. 6. Whether the evidence was sufficient to sustain appellant’s convictions.

Facts Lisa Marie Nichols testified that on October 4, 1979, the appellant, her boyfriend, had picked her up in a cab driven by George Sibley. Appellant directed Sibley to head toward the Waldorf area. After driving for a period of time, appellant told Sibley to drive onto a small dirt road off the main route. Nichols testified that the appellant then pulled out a gun and stated to the driver, "By now you know this is a robbery.” Sibley responded, "No, I didn’t.” According to Nichols, appellant then ordered Sibley to get out of the cab and handed the gun to her.

Sibley was then tied to a telephone pole with appellant’s belt. Upon leaving the area in the cab, appellant and Nichols found a small box of money under the seat containing approximately $20.00 The two then headed toward St. Charles where they stopped to get something to eat and then "drove around” for awhile. At some point they noticed a state trooper following them. They drove into a school yard where they parked the cab and ran.

Several days later they left for Florida. ⁶⁸ State Trooper Charles Williams testified that on October 4,1979, he had been advised to be on the lookout for a black and yellow cab. He spotted a vehicle meeting such description and followed it until it turned into the parking lot of a school. Trooper Williams blocked the entrance and called for backup units. When the other units arrived the cab was approached only to be found empty of occupants.

The appellant took the stand in his own defense and testified that in September 1979, he and Lisa Nichols had made plans to elope and go to Florida. He further testified that in order to carry out such plan he entered into an agreement with George Sibley whereby Sibley would pretend that he had been robbed so that appellant and Nichols might procure his cab. Appellant testified that Nichols was unaware of his agreement with Sibley. After the incident appellant and Nichols left for Florida where they were subsequently apprehended and returned to Maryland by Trooper Fuller and Investigator Hindle.

Two days following his return, the appellant gave a confession, the voluntariness of which is now at issue. At the suppression hearing Officer Hindle testified as to the discussion he had with the appellant the day prior to the appellant’s having given a statement. He stated, in part: "Q. . .. Did anybody make any promises or offers to him?

A. No, but he made a couple of offers. Q. What kind of offers did he make? A. He said he would tell us everything if we would get his girlfriend off. He didn’t want his girlfriend in any trouble.

Q. What did you tell him about that? A. I told him it wasn’t up to me, it was up to the State’s Attorney.” On cross-examination Officer Hindle responded as follows: "Q. When he asked you or told you that he would tell you everything if his girlfriend got off, ⁶⁹ indicating to him that you may be instrumental in that type of — A. Well, I said I will see what I can do. I will talk to the State’s Attorney. I can’t do anything but I will talk to the State’s Attorney.

(Emphasis added). Q. You indicated to him that you would try the State’s Attorney? A. I would relay the information, to that effect. Q. Did you indicate to him that it might be better for him if a statement was made or if he — A. No. Statement was made before I got a chance to ask questions.

Q. Did the question — Where did the question of your talking to the State’s Attorney and — Wfaat did that come to initially? A. Wfiiat do you mean by that? Q. At what time or where? * * * A. Oh, that happened at the Sheriffs Department. Q. That happened at the Sheriffs Department?

A. He started talking in Florida. He said I am going to talk, tell the whole story, He was saying stuff. In other words, it was a small car. He was saying statements to her, I will get you off, I will take the rap, you know, statements like that.” Trooper Fuller also testified with respect to the circumstances of the appellant’s confession.

He stated that upon returning the appellant to Maryland, the appellant was processed, taken before a commissioner, and interviewed the following day. Trooper Fuller testified that he read appellant his Miranda rights and that appellant indicated that he would give the statement. Fuller stated that no promises, threats or other means of coercion were used to induce the appellant to make a statement. The trial judge subsequently ruled that appellant’s confession was voluntary and admitted it into evidence. ⁷⁰ I Jury Instructions The appellant contends that the trial judge erred in his refusal to instruct the jury that they must find the appellant’s confession voluntary before considering it along with the other evidence.

Maryland cases have held that a trial judge may justifiably refuse to give requested instructions where there is no evidence to support them. See, e.g., Mayne v. State, 45 Md. App. 483, 489 , 414 A.2d 1 (1980), cert. denied, 101 U.S. 1347 (1981); Bolden v. State, 44 Md. App. 643, 653 , 410 A.2d 1085 , cert. denied, 287 Md. 750 (1980); Tripp v. State, 36 Md. App. 459, 463 , 374 A.2d 384 , cert. denied, 281 Md. 745 (1977). Such was the premise of the trial judge’s refusal to administer the proffered instructions in the instant case. He explained: "The Court declines to give that instruction and the reason for it is this: The State has offered evidence to show that it was, the statement was freely and voluntarily given and that he was advised of the rights as designated in your requested instruction.

"In addition, the defendant took the stand and did not allege that any inducement, threat, promises or offers of reward, were made to him to make a statement and neither did he allege that he or dispute the testimony of the officer who stated that the warnings had been given prior to the statement had not been given to him. We feel there is no evidence to put that issue before the jury.” We cannot agree with the trial judge’s finding that there was no evidence upon which to instruct the jury. The circumstances of the appellant’s rendition of his confession were, at the very least, questionable. Additionally, i^was.inaccurate for the trial judge to conclude that the appellant testified that no inducements were made to him.

At trial the following dialogue occurred: ⁷¹ "Q. [Defense counsel]: Did any of the investigating Officers give you any indication that your giving a statement would help Lisa in any way? A. [Appellant]: I was — It would help but it wouldn’t, they didn’t say it would be a guarantee. Q. What was said, if you can recall? A. Mr. Hindle said that he would talk to the State’s Attorney.

Q. And when was that statement made; do you recall? A. That had been made the day we were brought back from Miami. From Florida. Q. Do you recall where it was made?

A. The Sheriffs Department. Q. Before your statement to Trooper Fuller? A. Yes.” On the basis of this testimony as well as the testimony of Officer Hindle quoted earlier, we conclude that the lower court committed reversible error in its failure to instruct the jury as to the voluntariness of the appellant’s confession. We think the trial judge erred for another reason.

It is axiomatic that for a confession to be admissible it must be demonstrated to be the free and voluntary act of the accused. Smith v. State, 189 Md. 596 , 56 A.2d 818 (1948). The burden is upon the state to prove that the confession of the accused is a voluntary act and not the product of force or threat. Hillard v. State, 286 Md. 145, 151 , 406 A.2d 415 (1979); State v. Kidd, 281 Md. 32, 37 , 375 A.2d 1105 , cert. denied, 434 U.S. 1002 (1977); Mercer v. State, 237 Md. 479, 483-84 , 206 A.2d 797 (1965); Combs v. State, 237 Md. 428, 435 , 206 A.2d 718 (1965); Abbott v. State, 231 Md. 462, 465 , 190 A.2d 797 (1963).

Maryland has adhered to the two-tiered rule in establishing the voluntariness of confessions. Under this proce ⁷² dure the jury determines the issue of voluntariness after the judge had "fully and independently resolved the issue against the accused.” Jackson v. Denno, 378 U.S. 368, 378 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964). This view was elucidated in Gill v. State, 265 Md. 350, 357-58 , 289 A.2d 575 (1972), where the Court observed: "The question of the voluntary nature of a confession is initially decided by the trial judge and involves a mixed question of law and fact. If the judge receives it in evidence, its admission then becomes prima facie proof that the statement was freely and voluntarily given.

Once received, the evidence pertaining to the admissibility of the confession, which was first heard by the judge, is then submitted to the jury for its ultimate consideration.” See also, Day v. State, 196 Md. 384, 399 , 76 A.2d 729 (1950). More recently this Court in Darby v. State, 45 Md. App. 585, 594 , 414 A.2d 248 (1980), expounded upon the function of the judge and jury in a determination of the voluntariness of a confession. Judge Wilner, speaking for the Court observed: "It is clear ... that although the issue of voluntariness is submitted to both judge and jury, it is submitted to each for a different purpose. The judge determines voluntariness only for the purpose of deciding whether the confession is admissible as evidence — whether the jury can hear and consider it.

The jury’s role is to determine what, if any, weight to give the confession. If, contrary to the judge, the jury concludes that the confession is involuntary, it nevertheless remains as evidence in the case — it is not withdrawn as an exhibit, the testimony regarding it is not expunged; the jury simply gives it no weight.” As we have stated where there is an evidentiary dispute, the primary role of the judge is to rule upon the admissibility of evidence while the jury’s function is to determine the ⁷³ weight to give such evidence. This basic principle is, of course, applicable to the determination of the voluntariness of confessions. See, Linkins v. State, 202 Md. 212, 221 , 96 A.2d 246 (1953); Barnhart v. State, 5 Md. App. 222, 246 A.2d 280 (1968).

However, where the disputed evidence consists of a confession, there is an additional requirement that the jury disregard the confession if they do not find it voluntary beyond a reasonable doubt. Gill v. State, supra; Darby v. State, supra. Such factor lends a distinguishable characteristic to a jury evaluation of a confession as compared to other types of evidence. Thus, it is clear that general instructions as to the treatment and evaluation of evidence will not suffice with respect to the voluntariness of a confession.

In the present case after the trial judge concluded his instructions, counsel requested that the jury be additionally instructed that before they could consider the confession in arriving at their verdict they must find beyond a reasonable doubt that the confession was free and voluntary. As noted by the trial judge the requested instruction accurately reflects the status of the law with respect to jury determination of the voluntariness of a confession. However, the trial judge refused to give the instruction as the result of his belief in the absence of evidence to support the appellant’s contention. In view of the importance and distinct nature of jury instructions relating to the voluntariness of a confession, we hold that whenever a confession is introduced into evidence and instructions as to its voluntariness are requested,