McCarson v. State

Orth, J., delivered the opinion of the Court. The appellant urges that his convictions of larceny of an automobile and unauthorized use of the automobile 1 ²² 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 , 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 , 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, 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, see Jackson v. Denno, 378 U. S. 368 , 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 ²³ 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 , 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.” 2 We 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