Dempsey v. State

Eldridge, J., delivered the opinion of the Court. 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 held 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 ¹³⁷ 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 ¹³⁸ 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 ¹³⁹ 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 thought 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 ¹⁴⁰ 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 pf 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 ¹⁴¹ 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 instruction was not erroneous; and (3) assuming arguendo that the instruction would constitute prejudicial error under other circumstances, in the context of this case any error was harmless as held by the Court of Special Appeals. (1) The Failure to Object to the Instruction Ordinarily, of course, a question will not be considered on appeal if it has not been presented to the trial court, Maryland Rules 885 and 1085. This principle is reiterated in Rule 756 g specifically with respect to jury instructions in criminal cases: “Upon appeal a party assigning error in the instructions may not assign as of right an error unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of objection were stated at that time. Ordinarily no other error will be considered by the Court of Appeals or the Court of Special Appeals, but the appellate court, either of its own motion or upon the suggestions of a party may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to as provided by section f of this Rule.” However, as Rule 756 g makes clear with respect to jury instructions, and as the cases hold with respect to errors of ¹⁴² law generally, an appellate court may in its discretion in an exceptional case take cognizance of plain error even though the matter was not raised in the trial court.

See Berman v. Warden, 232 Md. 642, 646 , 193 A. 2d 551 (1963), where the Court referred to “the inherent power of an appellate court to correct an error ex mero motu” ; and Dimery v. State, 274 Md. 661 , 338 A. 2d 56 (1975), where Judge Smith for the Court comprehensively discussed the plain error doctrine. See also, e.g., Rowe v. State, 234 Md. 295, 302 , 199 A. 2d 785 (1964); Wolfe v. State, 218 Md. 449, 455 , 146 A. 2d 856 (1958). Consequently, the State’s first argument amounts to a contention that the Court of Special Appeals abused its discretion in invoking the plain error doctrine in this case. Dempsey’s petition for a writ of certiorari encompassed both the issue of whether the jury instruction on voluntariness was error and the issue of whether such error was harmless.

The petition did not, obviously, question the invocation of the plain error doctrine by the Court of Special Appeals. The State filed no answer to the petition as authorized by Rule 811 b and filed no cross-petition pursuant to Rule 812 b. With regard to such failure to file a cross-petition, this Court stated in Walston v. Sun Cab Co., 267 Md. 559, 569 , 298 A. 2d 391 (1973): “ . . . except in most extraordinary circumstances, we will consider on an appeal resulting from a grant of a writ of certiorari only those questions raised in the petition and matters relevant to those questions, in the absence of a cross-petition raising additional questions . . . .” See also McMorris v. State, 277 Md. 62 , 70-71 n. 4, 355 A. 2d 438 (1976). No “extraordinary circumstances” are present in this case which might justify our going beyond the questions raised in the petition for a writ of certiorari.

If the State believed that Dempsey’s failure at the trial to object to the instruction furnished a sound basis for this Court to decline review of Dempsey’s conviction, even though this was not the ground for the Court of Special Appeals’ affirmance, the State should have filed an answer ¹⁴³ to the petition for a writ of certiorari raising the issue. Rule 811 b authorizes the filing of an answer to the petition “disclosing any matters or grounds why the writ should be denied.” (Emphasis supplied.) On the other hand, if the State believed that we should review the Court of Special Appeals’ invocation of the plain error doctrine if we granted Dempsey’s petition, the State should have filed a conditional cross-petition for a writ of certiorari. Moreover, not only did the State fail to raise in a timely fashion the matter of the Court of Special Appeals’ taking cognizance of the jury instruction under the plain error doctrine, but the issue was not embraced in our order granting the writ of certiorari. Wheie this Court’s order granting certiorari limits the issues to be considered, no additional questions will ordinarily be dealt with even if such additional questions were raised in the petition or in a cross-petition.

Walston v. Sun Cab Co., supra, 267 Md. at 569 ; McMorris v. State, supra, 277 Md. at 70-71 . For two separate reasons, therefore, the State may not now claim that the Court of Special Appeals abused its discretion in taking cognizance of the jury instruction under the plain error doctrine. As the issue was not raised in a cross-petition, and as it was not encompassed in our order granting certiorari, we shall not consider it. (2) The Propriety of the Jury Instruction Concerning the Voluntariness of the Confession The two-step procedure in Maryland regarding the admission of confessions, with the trial judge initially determining voluntariness out of the jury’s presence, admitting the confession into evidence only if he finds it to be voluntary, and the jury then making the final decision on voluntariness, has been explained many times by this Court.

In Day v. State, 196 Md. 384, 399 , 76 A. 2d 729 (1950), Chief Judge Marbury stated for the Court: “The practice in this State, approved in many cases, is that the court first hears evidence without ¹⁴⁴ the jury to determine whether a confession is voluntary and should be admitted. If it decides to admit it,- the same evidence is then given to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. In so doing, the jury is entitled to have before it all of the evidence which affects the voluntary character of the document, and which the court passed upon in admitting it.” More recently, Judge Digges writing for the Court in Gill v. State, 265 Md. 350, 357-358 , 289 A. 2d 575 (1972), reviewed the Maryland procedure for determining the voluntariness of confessions: “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. ... Despite the fact that the accused’s statement is received in evidence, if, from all the testimony in the case, the jury is not satisfied beyond a reasonable doubt that'lt was the free and voluntary expression of the suspect, then they must disregard it in determining his guilt or innocence. Similarly, if they find that the proof shows beyond a reasonable doubt that the accused of his own volition made the confession, then they should consider it, together with all the other evidence, in arriving at a verdict.... Consequently, in a jury trial, assuming the confession is received, the evidence concerning its voluntariness is presented twice; first to the judge alone and later with the jury in attendance.

Of course, should the ¹⁴⁵ judge initially determine that the confession was involuntary it is-never even presented to the jury.” See in addition, e.g., Smith v. State, 237 Md. 573 , 207 A. 2d 493 (1965); Presley v. State, 224 Md. 550, 559 , 168 A. 2d 510 (1961), cert. denied, 368 U. S. 957 , 82 S. Ct. 399 , 7 L.Ed.2d 389 (1962) ; Hall v. State, 223 Md. 158, 169 , 162 A. 2d 751 (1960); Linkins v. State, 202 Md. 212, 221-224 , 96 A. 2d 246 (1953); Cox v. State, 192 Md. 525, 536-537 , 64 A. 2d 732 (1949); Smith v. State, 189 Md. 596, 603-606 , 56 A. 2d 818 (1948); Jones v. State, 188 Md. 263, 270 , 52 A. 2d 484 (1947); Peters and Demby v. State, 187 Md. 7, 15 , 48 A. 2d 586 (1946); McCleary v. State, 122 Md. 394, 399-400 , 89 A. 1100 (1914). The type of procedure employed in Maryland regarding the admissibility of confessions was held to be consistent with federal constitutional requirements in Jackson v. Denno, 378 U. S. 368 , 84 S. Ct. 1774 , 12 L.Ed.2d 908 (1964). In that case, the Court invalidated under the Fourteenth Amendment the procedure then employed in New York, where the trial judge could exclude a confession only if in no circumstances could the confession be deemed voluntary, but where the facts were in dispute concerning voluntariness, or reasonable persons could differ over the inferences to be drawn from undisputed facts, the judge was required to admit the confession, with the jury having the sole right to decide its voluntary character, 378 U. S. at 377 . The Supreme Court found no infirmity, however, in the so-called “orthodox rule” whereby the judge alone decides the voluntariness of the confession, or the so-called “Massachusetts rule,” which is the Maryland procedure, whereby the jury determines voluntariness only after the judge has “fully and independently” ruled that the confession is voluntary, 378 U. S. at 378 . 1 See also, regarding ¹⁴⁶ the procedure for determining the