Girardo v. De Lorenzo v. United States , 219 F.2d 506 ( 1955 )

PER CURIAM.

Appellant was indicted, tried and convicted of the crime of rape, D.C.Code, § 22-2801 (1951). As grounds for reversal he urges (1) that the admission in evidence of appellant’s oral confessions was error and (2) that the argument of Government counsel was highly prejudicial and denied appellant a fair trial.

We have searched the lengthy record in this case with care and can find no basis for ruling that the appellant’s confessions were inadmissible as a matter of law. The trial court carefully instructed the jury that the issue of voluntariness of the confessions was one for the jury to determine.¹

It is to be noted that, contrary to the usual practice, the trial judge did not in the first instance hear the testimony as to the admissibility of the confession out of the presence of the jury. However, the present case is covered by what we said in Tyler v. United States, 90 U.S.App.D.C. 2,193 F.2d 24, 28, certiorari denied 343 U.S. 908, 72 S.Ct. 639, 96 L.Ed. 1326:

“Although the usual procedure of a preliminary inquiry by the judge was not followed, still, in view of the issue which developed, it finally turned out that the matter had to be heard and determined by the jury. Obviously, therefore, no harm was done by the fact that the evidence was heard in the first instance before the jury. Clearly, the defendant suffered no prejudice, for a preliminary hearing would have had exactly the same result.”

Moreover, the trial judge offered appellant’s counsel the opportunity to hold a preliminary hearing and the offer was not accepted.

We have examined the record to ascertain whether the closing argument of the prosecuting attorney was, as appellant claims, so improper as to require reversal. His argument was vigorous, to be sure, but so was that of defense counsel. We find no error on that score.

Affirmed.

1 . “The Government has introduced in evidence certain oral statements claimed to have been made by the defendant while in the custody of the police. Defendant’s contention is that whatever statements were made by him were not made voluntarily but were the result of physical and mental coercion caused by hunger, weariness and refusal by the police to permit him to contact his mother.

“In this respect you are instructed as follows:

“The jury must first determine what, if any, statements were made by the defendant while in the custody of the police. The jury must next consider, with respect to such statements, if any, whether they were made by the defendant voluntarily and of his own free will and with full knowledge of the nature and the consequences of them. In determining whether a statement of [sic] confession is voluntary or not, you should consider the relation of the parties, the conversation between the police officers and the defendant, if any, the time and place when the alleged statement or confession took place, the physical condition of the defendant, and all the circumstances surrounding its making.”

The jury were further instructed as follows:

“You are admonished that evidence of any oral confession or confessions made by a defendant while he is under police custody should be received with caution and scrutinized with care.”