Dean v. State

⁵³⁷ Melvin, J., delivered the opinion of the Court. By a four count criminal information filed in the Circuit Court for Talbot County on July 5, 1979, the appellant, Bruce Herbert Dean, age 29, was charged with kidnapping four young females between the ages of 16 and 20. Each count named one of the young women as the victim. On November 16, 1979 he was found guilty by a jury of all four counts and subsequently sentenced on each count to prison terms totaling twelve years for the four offenses.

I On appeal Dean presents four questions. As one of the questions challenges the sufficiency of the evidence to support the kidnapping convictions, we shall consider that question first, for if we conclude that the trial judge erred in denying Dean’s motion for judgment of acquittal, made at the close of all the evidence on insufficiency grounds, we must reverse without remand, in which event it would be unnecessary to consider any of the other issues raised. See Burks v. United States, 437 U.S. 1 , 57 L. Ed. 2d 1 (1978); Ricketts v. State, 46 Md. App. 410 , 417 A.2d 465 (1980). The statute under which Dean was convicted (Md. Code, Art. 27, § 337) provides in pertinent part: "Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person ... with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony and shall be sentenced to the penitentiary for not more than thirty years.” As this Court said in Tate and Hall v. State, 32 Md. App. 613, 616-617 , 363 A.2d 622 (1976): "[Wjhatever might be said of the common law ⁵³⁸ offense [of kidnapping] it is apparent, in light of the changes wrought by § 337, that the gist of the offense of kidnapping in Maryland is unlawful confinement coupled with transportation of the victim.

Cf. Collier v. Vaccaro, 51 F.2d 17, 19 (4th Cir. 1931). The initial assaultive taking of the person and the carrying out of the state required at common law are not part of the § 337 offense.” The evidence in this case shows that at approximately 10:45 P.M., on May 21,1979, while the four alleged victims were standing on the corner of South and Higgins Streets in Easton, Maryland, the appellant drove up in a pickup truck and stopped. The appellant’s friend, one James Robinson, was a passenger in the truck.

One of the girls knew Robinson, but the appellant was a stranger to all of them. The girls asked for a ride to a particular bar several blocks away. The two men agreed and all four got into the back of the truck. When they got to the bar they found it closed.

The group then drove around Easton, with the girls still in the back of the pickup truck, "having a good time,” singing and waving to their friends, and generally "partying.” At one point, the truck stopped at a stop sign on the edge of town and all the girls got out. The men said they were on their way to a Six-Twelve store outside of town for beer and cigarettes. The girls told them of a liquor store that would be closer than the Six-Twelve store. The girls then got back in the truck and drove with the two men to the liquor store where beer and cigarettes were purchased.

After socializing with other young people there the girls again got into the back of the truck and continued to joy-ride around Easton. At some point thereafter, the men again indicated they were going to the Six-Twelve store — this time to get gasoline. There is evidence that the girls agreed to go with them on condition that they then be brought back to town and that the men agreed to that condition. Instead of stopping at the Six-Twelve store, however, the truck merely slowed down and continued farther out of town at a high rate of speed.

The girls then became "suspicious” and frightened. Their requests to be let out of the truck were ignored. There ⁵³⁹ was evidence that the girls were told by Robinson that the "only way we could get out was the two of us to have sex with them”; otherwise, they would not be let out until the group arrived in Wilmington, Delaware. There was also evidence that Robinson told the girls that if they "tried anything, they had something under the front seat for us,” and that the truck continued at a rapid rate without stopping at any stop signs.

Finally, at a point approximately 20 miles from Easton, the youngest of the girls jumped out of the truck and was seriously injured. Appellant then stopped the truck and the other three girls got out and two of them went to the nearby home of Mr. Philip L. Walbert to seek assistance for their injured friend. After telling his son to telephone for the police and an ambulance, Walbert drove the two girls back to the scene where the injured girl lay in the road. When they arrived, the appellant and Robinson drove from the scene, but not before Walbert was able to get the license tag number of the truck.

Testifying in his own defense, Dean’s version of the relevant events negated any notion that the girls were driven anywhere without their consent. On the ride out of Easton he said he heard no complaints from them and that he was driving them to his father’s home to continue the "partying” he thought they were enjoying. He said he stopped at all stop signs. Obviously, the jury, as was their prerogative, believed the victim’s version.

Keeping in mind that it is not our function to decide, on conflicting evidence, the guilt or innocence of an accused, we think the evidence was legally sufficient for the jury to have concluded beyond a reasonable doubt that what began as a voluntary joy-ride became a nonconsensual, and therefore unlawful, carrying away amounting to statutory kidnapping. II Another issue raised by the appellant concerns the propriety of the jury selection process. He urges that his convictions must be reversed because he was "denied due ⁵⁴⁰ process of law by the action of the trial court in denying his challenge to the array and continuing the trial for sixteen days without completing jury selection and specifically in the midst of the peremptory challenge stage of the jury selection.” We agree that under the circumstances that existed the procedure employed by the trial court resulted in a denial of due process. We must therefore reverse the judgments of conviction and remand the case for a new trial.

The circumstances surrounding the jury selection were unusual. The case was called for trial on October 30, 1979. It appears that at a pre-trial conference a few days before, Dean’s counsel had requested that he be allowed 80 peremptory challenges and the State 40, because the four count charging document contained four separate charges of kidnapping, on each of which Dean would have been subject to a sentence of twenty years or more of imprisonment. Without objection from the State, the judge granted the request.

It further appears that the Clerk of the Court, who was also the "Jury Manager” (see § 8-202 of the Cts. & Jud. Proc. Article, Code, 1980 Repl. Vol.), was made aware of the possibility that 120 peremptory challenges would be used.

Nevertheless, on the day of trial only 101 veniremen were present in court. It seems that the Clerk had given the Sheriff a list of "between 140 and 150” persons to be summoned for jury duty for this particular case, but had excused all but 101 for various reasons ("they were out of town, sickness, a lady ... whose mother that day had to have chemotherapy treatments, and things of that nature”). On the morning of trial, the trial judge and counsel met in chambers to discuss various preliminary matters. The following colloquy occurred concerning the jury panel: "MR.

BRAGER [Defense Counsel]: So we have 120 jurors? THE COURT: No, we don’t, we have 102.[ 1 ] We’ve ⁵⁴¹ had a job getting that many. We’ve gotten every warm body we could find. MR.

BRAGER: 102, and the defendant has 80 strikes, and the State has 40? THE COURT: That’s right. MR. BRAGER: What happens if we run out of jurors?

MRS. O’CONNOR [The Prosecutor]: We won’t. I’m not going to use 40 strikes. MR.

BRAGER: Okay, that’s the answer.” During the voir dire stage of the jury selection process, 8 of the panel were excused for cause, leaving only 93 prospective jurors. Using the alternating challenge method (Md. Rule 753 b 2), the prosecutor and defense counsel proceeded to exercise their peremptory challenges. After the defense had exercised 64 peremptory challenges and the State 15, 12 jurors had been seated in the jury box but not sworn. At this point the judge reminded defense counsel that only two panelists remained and asked if he "insisted] on taking the 80.” Counsel replied, "The defense fully insists on taking the 80.” After further colloquy, the prosecutor objected "to the continued procedure” of allowing 80 peremptory challenges to the defense and 40 for the State.

Although she had acquiesced in the procedure to that point, she told the judge that she "didn’t check the rule, and did not look at the rule this morning, not thinking that we would approach the problem that we have this afternoon,” but the rule (Maryland Rule 753 a 1), she said, should be interpreted to permit only 20 peremptory challenges for the defense and 10 for the State. She asked that one of the two remaining panelists be seated as an alternate and that the trial proceed. The judge replied: "THE COURT: Your motion is overruled, as we do not interpret that Rule the way you move that we should. And furthermore, the motion comes entirely too late.

If the Court were to be persuaded by your motion, then I believe the defendant could ⁵⁴² successfully attack the convictions, if convictions did ensue, on the basis that the State was allowed more challenges than they had a right to have. You already used 14 [actually 15]. We pause here to note that the prosecutor was correct in her interpretation of Rule 753 a l. 2 See Mason v. State, 12 Md. App. 655, 680-681, 280 A.2d 753 (1971), where, speaking for the Court, Judge Moylan said: "The problem is one of elementary multiplication.... If the most serious charge on trial is a capital or penitentiary offense/ 3 - 1 the multiplicand is twenty; the multiplier is not the number of charges on trial but rather the number of persons on trial — in this case one.” The alternate challenge procedure continued.

The defense challenged one of the jurors already in the jury box and also the two remaining veniremen. At that point, there were 11 jurors seated but not sworn and no veniremen left. The judge postponed the case to November 15, 1979. Defense counsel objected to the postponement, but did not suggest or request at that time any alternative action that could have been taken by the judge.

He did state, however, that "one of the reasons that we objected to the postponement is because these people [the 11 unsworn jurors] can easily read about this matter” during the sixteen day postponement. The judge said he would "caution them not to talk about it or read anything