Volume 71 — Washington Reports, Second Series

<bold>[1] Criminal Law — Confessions — In-custody Interrogation — What</bold> <bold>Constitutes.</bold> A person's confinement in a hospital room for recovery from injuries suffered in an automobile accident was not "custodial" confinement within the meaning of the <italic>Escobedo</italic> rule as to statements of a suspect in custody, and a police officer's questioning of the injured person in his hospital room did not, therefore, constitute an in-custody interrogation, where there was no compelling atmosphere in the hospital questioning, no showing that the injured person was not in full possession of his faculties, and the defendant had not been placed under arrest or otherwise restrained by the police in any manner. <bold>[2] Same — Confessions — Noncustodial Interrogation —</bold> <bold>Admissibility Test.</bold> The test as to the admissibility of incriminatory admissions made in a noncustodial interrogation is whether or not the interrogation was of such a nature as to exert such pressure upon the individual as to disable him from making a free and rational choice whether to speak with the police officer. Before admitting such a statement, the court must determine whether the confession or admission was free and voluntary, <italic>i.e.</italic>, not extracted by any sort of threat or violence, nor obtained by promises or improper influence. [1] See Am.Jur.2d, Evidence § 529.

<bold>[1] Criminal Law — Right to Counsel — Interrogation After</bold> <bold>Request for Counsel.</bold> It was not error to admit testimony of a deputy prosecutor as to statements voluntarily made by the defendant during an interrogation even though the defendant had requested an attorney at the beginning of the interrogation, where an attorney was appointed within a few hours, and the defendant demonstrated a clear understanding of his constitutional rights during the interrogation. <bold>[2] Same — Confessions — Hearing — Review.</bold> Although the Supreme Court will not normally review findings of fact supported by credible evidence, the court cannot blindly and conclusively accept findings made as to the voluntariness of a confession. The record will be carefully reviewed, giving significant weight to the findings, but without a reevaluation of the credibility of witnesses, to determine if it is convincingly evident that due process requirements have not been exceeded. Strained findings of fact, predicated upon translucent or sophisticated evidence, cannot stand. <bold>[3] Same — Right to Counsel — Failure to Advise of Right.</bold> Failure to advise a criminal defendant of his right to counsel does not of itself render a subsequent incriminating statement inadmissible where no indictment or information is pending and there was no request for counsel. <bold>[4] Same — Right to Counsel — Failure to Request Counsel.</bold> Due process does not guarantee an arrested suspect the opportunity to consult counsel in the absence of request. <bold>[5] Same — Confessions — Test for Admissibility.</bold> When considering the voluntariness of a criminal confession the question in each case is whether the defendant's will was overborne at the time he confessed, <italic>i.e.</italic>, whether the confession was voluntary. <bold>[6] Same — Trial — Instructions — Limiting Instruction —</bold> <bold>Necessity for Request.</bold> Absent a request for an instruction limiting the jury in its consideration of an item in evidence, the failure to give such an instruction is not error. <bold>[7] Same — Alibi — Instruction on Exact Time of Alleged Crime.</bold> An accused who presented alibi as a defense was not entitled to an instruction pinpointing the exact time of the alleged crime where his defense was that he had never at any time been in the county in which the crime was committed. <bold>[8] Same — Confessions — Determination as Matter of Law —</bold> <bold>Waiver.</bold> A contention that a confession obtained after request for counsel was<page_number>Page 227</page_number> a violation of the right to counsel was waived insofar as being considered in determining the status of the confession as a matter of law, where the claim was delayed until appearance before a jury. [1] See Am.Jur.2d, Criminal Law § 314.

<bold>[1] New Trial — Review — Discretion of Trial Court.</bold> Unless the reasons given by a trial court for granting a new trial are based merely upon a disagreement with the jury verdict, the order must be affirmed in the absence of an abuse of discretion. <bold>[2] Witnesses — Competency — Function of Court.</bold> The question of law as to the competency of a witness is solely for the court. <bold>[3] Same — Competency — Children — Factors Considered.</bold> A trial court's determination as to the competency of a child as a wipness involves consideration of the child's understanding of the obligation to speak the truth, mental capacity at the time of the occurrence concerning which he or she is to testify, whether the child's memory is sufficient to retain an independent recollection of the occurrence, capacity to express memory of the event, and the capacity to understand simple questions about it. The trial court's ruling will not be disturbed on appeal in the absence of proof of a manifest abuse of discretion. <bold>[4] New Trial — Grounds — Accumulated Error.</bold> A new trial may be required for an accumulation of errors even though no one of them, standing alone, would be of sufficient gravity to constitute grounds for reversal.<page_number>Page 296</page_number> <bold>[5] Same — Discretion of Court — Review — Orders Granting or</bold> <bold>Denying — Distinction.</bold> The trial court is invested with broad discretion in granting motions for a new trial, and its determination will not be disturbed absent an abuse thereof. A stronger showing is required to overturn an order granting a new trial than denying one. The basic question is whether the moving party received a fair trial. [3] See Ann. 81 A.L.R.2d 392; Am. Jur., Witnesses (1st ed. §§ 129-132).

<bold>[1] Criminal Law — Trial — Right to Fair Trial.</bold> The final measure of error in a criminal case is not whether a defendant was afforded a perfect trial, but whether he was afforded a fair trial, since the constitution guarantees no one a perfect trial. <bold>[2] Same — Witnesses — Impeachment — Presumptions.</bold> The court, the parties, and society all have a right to assume that a person will properly discharge his duty to tell the truth when called upon to give evidence. A person calling a witness vouches for his credibility, and may not impeach the witness unless, he, without warning, tells a story different from the one the party calling him had a reasonable right to expect. <bold>[3] Same — Witnesses — Impeachment — Surprise — Right to Rely on</bold> <bold>Prior Statement.</bold> Where police officers have furnished the prosecuting attorney with formally prepared, signed, or acknowledged statements of a witness, he may rely on such statements in calling the witness with the expectation that testimony will be in accord; he is under no duty to investigate and inquire as to whether the witness will adhere to the statements unless he possesses other information reasonably apprising him that it was false or that the witness intends to repudiate it. If the witness does repudiate the statements and the foundation is laid that the prosecution is genuinely taken by surprise and that the witness is hostile, it is proper to impeach the witness by use of the prior statements. <bold>[4] Same — Trial — Cross-examination — Improper Remarks — Degree</bold> <bold>of Error — Test.</bold> In testing the degree of error and the effect upon the jury arising from improper remarks of the prosecuting attorney on cross-examination of an accused, consideration must be given to whether the remarks were inadvertent or deliberate, designed to inflame and prejudice the jury, or whether they have unintentionally done so. The effect must be viewed in context with the earlier evidence and the circumstances of the trial in which they were made. [4] See Am. Jur., Trials (1st ed. § 967).