Bernos v. State

¹⁸⁶ Morton, J., delivered the opinion of the Court. Appellant was convicted of second degree murder by a jury in the Circuit Court for Baltimore County and sentenced to a term of thirty years. In this appeal he contends that the court erred in permitting a police officer to testify “as to certain incriminating statements” made by appellant “without conducting a hearing as to voluntariness outside of the presence of the jury.” It is true that this Court has ruled that evidence as to the voluntariness of a confession or statements made by an accused should first be taken out of the presence of the jury for the purpose of enabling the trial judge to make a preliminary determination as to their admissibility. Barnhart v. State, 5 Md. App. 222 .

Although the taking of such evidence in the presence of a jury is not a commendable practice, we have held that where the statements were found to be admissible by the presiding judge, no reversible error was committed. Dennis v. Warden, 6 Md. App. 295 . While it appears that the first part of appellant’s statements did come into evidence in the presence of the jury, there was no request by counsel for the defense that the jury be excluded and the court did exclude the jury as soon as it became apparent that the admission of appellant’s statements was to be contested. Moreover, the trial judge found the statements to be admissible.

Under these circumstances, we find no reversible error. It is next contended that the court erred in ruling that the statements were admissible. We disagree. Officer Michael W. Arnetta testified that on May 22, 1969, at approximately 6:30 p.m., he received a call over the police radio “of an injured woman at 8401 Liberty Road.” Upon his arrival there he was met by a fellow officer who, when asked by Officer Arnetta “What happened?”, replied: “ T don’t know’; that the ambulance had already taken the woman from the cellar to the hospital.” Officer Arnetta testified that he then went into the bedroom of the house, found the appellant lying on the bed and “I ¹⁸⁷ asked Mr. Bernos what happened?” According to the officer, appellant “replied that he had an argument with his wife Frances Patricia Murphy, 1 the previous day and she went down to the basement and locked the door, remaining all night. * * * Mr. Bernos then went to the basement also and * * * there was a struggle and in the struggle the gun went off.

When I learned that a gun was used to injure Mrs. Murphy I asked permission to use the phone in the bedroom to summon a sergeant.” According to the transcript of testimony, the following colloquy took place: “Q. Did you call your sergeant at that time ? A. Yes. Q. And, what if anything took place while you were making the telephone call ? A. While I was on the phone, Dr. Bernos was still talking.

Q. Were you talking to him or was he just talking? A. He was just talking. Q. What, if anything, did he say? “A. That he tried to kiss his wife but there was no response. That he removed the gun from his back pocket and pointed it at her.

Q. Did he say anything further ? A. No. Q. At this point, did you complete your telephone conversation ? A. Yes, I did.” The trial judge ruled, and from our review of the evidence we cannot disagree, that the appellant’s statements were not the result of a custodial interrogation within the ambit of Miranda v. Arizona, 384 U. S. 436 , as contended by the appellant then and as he contends in this ¹⁸⁸ appeal. A .“custodial interrogation” within the meaning of Miranda is “questioning initiated by law enforcement officers after a person has been taken into custody of otherwise deprived of his