Bundy v. State

MOYLAN, Judge. The appellant, Melvin Bundy, was convicted by a Baltimore City jury of the theft of goods of a value of $300 or more. On this appeal, he raises the following two contentions: 1) That the trial judge erred in permitting the State to exercise an excessive number of peremptory challenges; and 2) That the trial judge erred in permitting the appellant’s trial to go forward in his absence. Legislative Intent: The Meaning of “Party”: The appellant’s trial was consolidated with that of a codefendant.

The two were being tried for a crime that does not carry a possible sentence of death, life imprisonment, or imprisonment for twenty years or more. Under the provisions of Md.Code Ann., Cts. & Jud.Proc. § 8-301(d) (1989), the authorized allocation of peremptory challenges, therefore, was as follows: “In all other criminal cases, each party is permitted 4 peremptory challenges.” (emphasis supplied). ⁵¹⁴ See also Md.Rule 4-313(a)(l). We sympathize with the legitimate perplexity of the trial judge when called upon to apply that provision: “[I]t really is unclear in my mind as to what this rule means and what the purpose of the rule is.” Section 8-301(d), mirrored in Rule 4-313(a), is, indeed, unclear. In the course of the jury selection process, each of the two codefendants claimed that he, as a “party,” was entitled to four peremptory challenges.

The trial judge correctly ruled that that was the case, but then ruled that the State was thereby entitled to a total of eight peremptory challenges, four for each codefendant. Preliminarily, we have to note that the appellant’s complaint — as he loosely phrases it — about the State’s having been awarded peremptory challenges is beside the point. The awarding of excess challenges would be immaterial if, in fact, they were never utilized. In this case, the State used six of the eight peremptory challenges it was awarded.

The significant error, therefore, if error it be, is not that the State was awarded four additional peremptory challenges to which it was not entitled but that it actually utilized two additional peremptories to which it was not entitled. See St. Luke Evangelical Lutheran Church, Inc. v. Smith, 318 Md. 337, 344 , 568 A.2d 35 (1990). The State’s response is that in a consolidated trial against two codefendants, the State is a “party” twice, once as the prosecutor of Codefendant “A” and a second time as the prosecutor of Codefendant “B.” The task before us is to divine the intent of the Legislature when it used the phrase “each party” in enacting what is now Md.Code Ann., Cts. & Jud.Proc. § 8-301(d) (1989). That intent, of course, also controls the meaning of the same phrase in the implementing Rule 4-313(a). ⁵¹⁵ The 1973 Meaning of “Party” Ch. 2, § 1, Acts of the Legislature 1st Sp.Sess.1973, enacted what was then § 8-301(b) and has since, in 1986, been recodified as § 8-301(d).

As part of a larger recodification, creating what is now Courts & Judicial Proceedings Article, the 1973 amendment repealed the predecessor provisions of 1957 Code (1972 Repl.Vol.) Art. 51, § 15 and replaced it with Courts & Judicial Proceedings Article, § 8-301. Section 8-301 did not simply supercede Art. 51, § 15 but significantly reformulated the rule, its new language deriving from what was then Md.Rule 746. It is necessary to examine that 1973 amendment 1 because interim changes ⁵¹⁶ elsewhere in the section have not affected the meaning of the word “party.” It means now what it meant then. After allotting peremptory challenges for cases involving a possible sentence of 1) death, 2) life imprisonment, and 3) twenty years or more of imprisonment, that original version of § 8-301 went on to provide: “(b) Other cases. — In all other cases, each party is permitted four peremptory challenges; all defendants are considered a single party for this purpose.

(1) If it appears that the trial involves two or more defendants having adverse or hostile interest, the court may allow additional peremptory challenges; (2) No defendant shall be allowed more than four peremptory challenges.” The larger legislative scheme becomes apparent when we contrast that original subsection (b) with the complementary provisions of what was then subsection, (a): “(a) Cases involving death, life imprisonment, or 20 years or more. — In a trial in which the defendant is subject, on any single count, to a sentence of death, life imprisonment, or 20 years or more of imprisonment, except for common law offenses for which no specific penalty is provided by statute, each defendant is permitted 20 peremptory challenges and the state is permitted ten peremptory challenges for each defendant.” Subsection (a) dealt with the graver criminal cases, those that might involve sentences of death, life imprisonment, or twenty years or more imprisonment. 2 Subsection (b), by ⁵¹⁷ contrast, dealt not simply with lesser criminal cases but also with ali civil trials. 3 See, e.g., Vaccaro v. Caple, 33 Md. App. 413 , 365 A.2d 47 (1976); St. Luke Evangelical Lutheran Church, Inc. v. Smith, 74 Md.App. 353 , 537 A.2d 1196 (1988), rev’d on other grounds, 318 Md. 337 , 568 A.2d 35 (1990). In the graver criminal cases, each defendant enjoyed (and still enjoys) a two-to-one advantage over the State with respect to the allotment of peremptory challenges. Each defendant, moreover, was (and still is) treated as a separate entity in terms of qualifying for the full allotment of peremptories. The State, on the other hand, is protected against suffering anything worse than a two-to-one disparity in peremptories by the express proviso that “the State is permitted 10 peremptory challenges for each defendant.” (emphasis supplied).

The Legislature manifestly knew the words to use when it wanted to multiply the State’s allotments of peremptories to keep pace with the multiplication of defendants. ⁵¹⁸ The “other cases” — civil and lesser criminal alike 4 — were (and still are) treated far more summarily. Not only were the allotments of peremptories reduced from twenty or ten to a mere four, but the litigants on either side of the trial table were, generally speaking, reduced to being treated as a single, collective “party.” But for the cases where “adverse or hostile interest[s]” were established, there was no longer any provision for multiplying the sets of peremptories by the number of defendants. Indeed, the very opposite computation was expressly directed: “all defendants are considered a single party.” Similarly, the Legislature deleted any provision for the State’s multiplying its sets of peremptories by the number of defendants. In looking at the language of that first version of § 8-301 as a whole, the legislative scheme is self-evident.

In the trial of the less grave criminal cases, it is to be noted that the two-to-one disparity favoring a defendant over the State had been eliminated. Criminal defendants, like their civil counterparts, were, moreover, only permitted more than one collective allotment of peremptories in those special instances where they were able to show an “adverse or hostile interest” to each other. In such a case, to be sure, the State (and by analogy the civil plaintiff) was not permitted a reciprocal enhancement or multiplication. In one sense, of course, the State had comparatively little need for such enhancement.

In most cases, where there are not ordinarily codefendants with adverse interests, the State was already basking in the unaccustomed luxury of a four-to-four parity, as opposed to the two-to-one disparity it was wont to suffer in graver criminal cases. Even where defendants with adverse interests were permitted enhanced allotments of peremptories, moreover, the State, except in the relatively rare situations where the ⁵¹⁹ aggregate defense enhancement was multiplied by a factor of three or more, was still relatively no worse off than it always had been — under the adverse two-to-one disparity— in the trial of the graver criminal cases. Even an apparent disparity adverse to the State, moreover, would not always translate into an actual disparity. It may be assumed that when two defendants were possessed of truly adverse and hostile interests, their jury selection strategies would not coincide.

Their respective exercises of separate sets of peremptories, therefore, would as likely cancel each other out as impede the State in its effort to obtain the most favorable possible panel. In the isolated context of subsection (b)(1) alone, the State may appear to have suffered a reversal of fortunes. In the larger context of § 8-301 as a whole, however, it is rather the case that the State’s overall improvement of fortunes was simply marginally discounted. The State’s Argument and Its Flaws The State now argues that the Legislature intended and, therefore, implicitly directed that the State, in the trial of multiple defendants, be considered a separate “party” for each prosecution of a separate defendant.

For a number of reasons, we conclude that the legislative intent was quite otherwise. 1. The Stylistic Improbability: At the outset, it is highly improbable that the Legislature would have lapsed into a passively implicit style in a setting where express words were before its very eyes in the companion subsection, where the subject matter of possible multiplication of peremptories was unmistakably before it calling for resolution, and where an explicit linguistic rhythm had already been established. In subsection (a), the Legislature had spelled out three varieties of graver criminal cases and for all three situations expressly provided that “the State is permitted ... peremptory challenges for each defendant.” Indeed, in the subsequent (1986) restructuring of the section, the Legislature rhythmically ⁵²⁰ and repetitively sounded that cadence of awarding the State “peremptory challenges for each defendant” no less than three separate times before abruptly going silent when it came to allotting peremptories in the trial of “other cases.” That sudden, pregnant silence argues loudly not for an implicit reiteration of the established refrain but for its conscious and deliberate cessation. 2. The Semantic Flaw: The State also attaches what we find to be implausible significance to the switch from the use of the reference “the State,” in what was then subsection (a), to the reference “party,” in what was then subsection (b).

The State contends that the prosecution in its manifestation as “the State” is an indivisible entity for purposes of an entire trial, be it simple or be it complex. The State argues, however, that the prosecution in its different manifestation as a “party” suddenly becomes Hydra-headed, capable of division into as many .parts as the multiple defendants it is proceeding against. If they be two, it is two; if they be five, it is five. In such protean form, the prosecution’s entitlement to have its procedural benefits multiply proportionately with its own multiplication of roles is, the State argues, implicit.

What other purpose, we are asked, did the Legislature have in switching references from “the State” to “each party?” The explanation for the change in terminology, however, is clear. What was formerly subsection (a) dealt only with criminal trials. Reference, therefore, to both “the defendant” and “the State” was appropriate. What was formerly subsection (b), however, dealt with civil trials as well as criminal trials.

The more generic term “party,” therefore, became necessary to embrace a plaintiff as well as the State and a civil defendant as well as a criminal defendant. “The State,” when referred to as a “party,” did not suddenly assume a different character; it simply became a member of a larger category. ⁵²¹ To be sure, the current provision of § 8-301 dealing with “other cases” no longer embraces civil trials. Ch. 405 of the Legislative Acts of 1989 amended what is now subsection (d), which had originally been subsection (b), by adding the word “criminal.” What used to be the allotment of peremptories “[i]n all other cases” is now simply the allotment of peremptories “[i]n all other criminal cases.” (emphasis supplied). The 1989 amendment, however, did not change in any way the meaning of the phrase “each party.” The legislatively intended meaning of the phrase had been infused back in the original provision, at a time when it embraced civil as well as criminal trials. That is the obvious meaning of the term “party” and the obvious reason for switching to that term when moving from the coverage of exclusively criminal trials to the coverage of all trials.

Indeed, the analogy between the State and the civil plaintiff, during that time when the subsection allotted peremptories to both in like manner, is helpful. But for the criminal-civil dichotomy, the case of St. Luke Evangelical Lutheran Church, Inc. v. Smith, 74 Md.App. 353 , 537 A.2d 1196 (1988), rev’d on other grounds, 318 Md. 337 , 568 A.2d 35 (1990) 5 is indistinguishable from the one at bar. In that case, there was one plaintiff, Ginny Ann Smith, just as here there is one sovereign prosecutor. In that case, the single plaintiff was proceeding against two separate defendants, just as here the State was prosecuting two separate defendants.

All parties, civil or criminal and on either side of the trial table, were then subject to the provisions that “each party” would have available four peremptory challenges, subject only to the further proviso that multiple defendants could show adverse and hostile interests. ⁵²² In that case, it eventuated that each of the two civil defendants was entitled to a separate set of four peremptories. In this case, it is now automatically provided that each defendant shall enjoy a separate set of four peremptory challenges. In that case, as here, the trial judge, in what he perceived to be the interests of fairness and symmetry, awarded the plaintiff eight peremptories instead of four, in order “to keep the balance true.” Precisely the same instinct moved the judge in this case to double the peremptories available to the State, instinctively calling upon a sense of balance:. “The State, it seems to me, is entitled to the same attainment of fairness as the Defendants are.” Speaking, however, through Judge Garrity, we held unequivocally that the plaintiff in that case was a single party and that there was no provision in the law to permit her an enhanced portion of peremptory challenges. St. Luke, 74 Md.App. at 360-366 , 537 A.2d 1196 .

We reversed the judgment because of the excessive grant of peremptories to the prevailing plaintiff. We see no principled distinction that can be be drawn between the plaintiff in that case and the State in this. No “sense of balance” or “fairness” can transmute a single “party” into multiple parties simply because multiple parties happen to be on the other side of the trial table. 3. The Improbability of Spontaneous Cloning: The construction of the subsection urged upon us by the State, moreover, could work absurd results, clearly not intended by the Legislature.

To urge that the prosecuting sovereignty becomes three separate incarnations or “parties” when proceeding against three codefendants is no more reasonable than to urge that the prosecuting sovereignty divides itself into three incarnations or “parties” when proceeding against a single defendant on three separate indictments. When, in a single trial, the State prosecutes a lone defendant on three separate indictments, the two adversaries do not each become a “party” three times, ⁵²³ entitling each to twelve, rather than four, peremptories. 6 It is implausible that the Legislature intended to multiply the incarnations of the prosecuting sovereignty, either by the number of codefendants or by the number of jointly tried indictments in the trials of lesser criminal charges. 4. The Improbability of Reversing the Handicaps: The construction urged upon us by the State would have produced, prior to a 1986 amendment, yet another absurdity. If the State had, indeed, been treated as a separate “party” for each and every codefendant it prosecuted, that multiplication would not have been contingent upon whether the defendants could have multiplied their entitlements to peremptories.

The multiplication would have been automatic, according to the State’s proferred theory, even when nonhostile codefendants were stuck in a single collective entity. Posit then the State’s proceeding against five codefendants unable, as required prior to 1986, to show any adverse or hostile interest to one another. The State’s interpretation would have seen all five codefendants reduced to a paltry four peremptories among them, while the State would be luxuriating in the largess of twenty peremptories, four for each of the five prosecutions it was pursuing. A progression through § 8-301 would have revealed a disparity of peremptories adverse to the State in the trial of the graver cases being reduced not simply to parity but to the possibility of a reverse disparity (even a possibly gross disparity) in favor of the State in the trial of the lesser ⁵²⁴ cases.

We cannot ascribe to the Legislature any such incongruous and inexplicable intent to reverse the handicaps. The 1973 Legislative Intent We hold that when the Legislature, in 1973, enacted what was then § 8-301(b), it intended to treat the State as a single, indivisible “party,” whether the State was prosecuting 1) a single defendant on a single indictment, 2) a single defendant on multiple indictments, 3) multiple defendants on a single indictment, or 4) multiple defendants on multiple indictments. In the course of a single criminal trial, simple or complex, the State would be entitled to four peremptory challenges and no more. Later Amendments Have Not Changed That Meaning The amendments to § 8-301 since its first appearance in 1973 have not altered the meaning of the word “party” or of the phrase “each party.” Ch. 656, Acts of the Legislature 1986, made some substantive changes in § 8-301 and also restructured it.

The former subsection (a) had been an omnibus clause, embracing the allotment of peremptories in three different situations — those involving the possibility of the death sentence, a sentence of life imprisonment, or a sentence of twenty years or more of imprisonment. That omnibus provision was broken down by the 1986 amendment into three separate subsections: (a) dealing with a possible death sentence, (b) dealing with the possibility of life imprisonment, and (c) dealing with the possibility of a sentence of twenty years or more. That restructuring down-shifted the former subsection (b), which we have been discussing, into its present position as subsection (d). A. Reducing Peremptories for Twenty-Year Cases: One of the substantive changes, not here pertinent, occurred in the new subsection (c).

Those criminal trials involving the possibility of imprisonment for twenty years or more had theretofore been treated just like the trials ⁵²⁵ involving the possibility of death or life imprisonment, with each defendant being permitted twenty peremptory challenges and with the State being permitted ten peremptory challenges per defendant. As a result of the 1986 amendment, the new subsection (c) now provides for trials involving the possibility of a twenty-year sentence, except in those cases involving “a common-law offense for which no specific penalty is provided by statute,” ten peremptory challenges for each defendant and five peremptory challenges for the State per defendant. Although the number of peremptory challenges has been reduced for that category of offense, the two-to-one disparity in favor of each defendant over the State has been maintained. B. Simplifying the Provision for Multiple Defendants: The most significant change effected by the 1986 amendment was with respect to the new subsection (d), the former subsection (b).

As a result of the amendment, it starkly and simply provided: “In all other cases, each party is permitted 4 peremptory challenges.” Gone was the provision that “all defendants are considered a single party for this purpose.” A fortiori, gone also was the exemption from that provision for the case of “two or more defendants having adverse or hostile interest[s].” Nothing in the 1986 amendment, however, affected or altered the status of the State as a single and indivisible “party.” There was, on the other hand, a serious question as to what the amendment had done to the other side of the trial table. Was each defendant now a separate “party” with the right to exercise a full complement of four peremptories without any further necessity of showing a hostile or adverse interest to anyone else? Or was it rather the case that all defendants were now irredeemably submerged into collective status as a single and indivisible “party” notwithstanding hostile and adverse interests? ⁵²⁶ a. Ambiguity As To Defendants In a case where all that remained in the stripped-down subsection was the phrase “each party” and where no provision remained for defendants with adverse and hostile interests, it was argued that the amendment liberalized the entitlement of defendants to peremptory challenges.

It was, equally plausibly, argued that the amendment austerely constricted that entitlement. The constricting argument was that the earlier proviso “all defendants are considered a single party for this purpose,” now removed, had simply been a redundancy and that by removing all mention of a possibility for defendants to show “adverse or hostile interests,” that possible exemption from the entire defense team’s being treated as a single “party” had been removed. The liberalizing argument, on the other hand, was that the monolithic and indivisible interpretation of the word “party” only was tenable because of the further proviso that “all defendants are considered a single party for this purpose.” That argument continued that with the removal of the limiting language, the word “party” was suddenly free to take on a more natural meaning as a reference to an individual litigant and not to a collection of litigants. b. The Original Meaning of “Party" Language from some of the earlier opinions of the Court of Appeals supported the more constrictive interpretation and would seem to have suggested that all defendants were now, after the 1986 amendment, irredeemably subsumed into a single collective entity with a single set of peremptories.

In Hamlin v. State, 67 Md. 333 , 10 A. 214 (1887), each of two criminal codefendants was claiming the entitlement to a full and individual complement of four peremptory challenges. The trial judge declined to give them separate sets of peremptories and the Court of Appeals affirmed. As Judge Miller observed: “The language is that the ‘respective parties or their counsel may each’ do this, not that every or any person may do it. The cause is one and there are two parties to ⁵²⁷ it.

All who are joined as plaintiffs constitute one party, and all who are joined as defendants the other. In other words the two parties to a cause are regarded each as an integral unit whether consisting of one or several persons. Such is not only the obviously true construction of the language thus used,