Hunt v. State

Orth, J., delivered the opinion of the Court. Barbara Jean Stec, 21 years of age, said that she had been kidnapped by members of a motorcycle club called The Heathens. Although various members of the club participated in the crimes by being present in a position ²⁹⁰ to aid and abet, at the least, 1 Houston A. (Foggy) Hunt was her principal tormentor.

She and Janet Couch, with whom she shared an apartment, and Janet’s boy friend had gone to the Club DeVille about 11:00 P.M. on 18 April 1969. Hunt had forced her to leave the Club DeVille with him. For the next several days she was in the company of The Heathens against her will. She was forcibly taken to various places in Maryland, including Hunt’s residence and The Heathen’s clubhouse, driven to Delaware, returned to Maryland, plied with dope, beaten and raped.

She escaped in the early afternoon of 22 April and called her former boss at the County Bar, Tony Panatti, from a telephone booth on Holabird Avenue. He called the police. As a result of her allegations the Grand Jury for Baltimore County returned a true bill against Hunt and eight others — Gilmer P. (Jeeter or Mother Cheater) Crane, Chester (Animal) Gabriszeski, Hurley L.

(Dum Dum) Fickus, Paul Leonard (Tramp) Sprinkle, George (Jungle) Janowiak, Patrick (Baby Huey) Hill, Mark Allan (Crazy) Fox and Walter Joseph (Tiny) Kennedy. Upon suggestion the indictment was removed to Anne Arundel County and tried before a jury in the Circuit Court in that jurisdiction. Only Hunt was convicted. The jury found him guilty of kidnapping Barbara, forcibly carrying her within Maryland (1st count), and out of Maryland (2nd count), assaulting her (5th count), and falsely imprisoning her (6th count). 2 He was sentenced to a total of 46 years — 20 years under the 1st count and two terms to run consecutively thereto of 20 years, 1 year and 5 years respectively under the other counts.

He appealed. His sixteen claims of prejudicial error run the gamut of the trial from the selection of the jury to the sentences imposed and include along the way, the ²⁹¹ conduct of the trial judge, the admission of evidence, closing arguments of the prosecutors, sufficiency of the evidence and merger of offenses. The defense was that the criminal aspects of Barbara’s story were a complete fabrication. The defendants adduced evidence from some eighteen witnesses that Barbara willingly went with Hunt and other members of The Heathens, declining an invitation of one Nicholas Thomas (Piggy) Charney, not a member of The Heathens, and with whom she had danced, to leave the Club DeVille with him. 3 Contrary to her claim of being raped, she willingly went to a second floor bedroom with Hunt and when she came back to the first floor living room told another girl, Joyce Peay, that “Foggy couldn’t satisfy her.” Later when they returned from Delaware 4 and were all in the clubhouse of The Heathens, she sat on a sofa with Hunt “trying to arouse” him again.

She was successful and they copulated right then and there in the presence and within the view of the gathering. 5 Nor was she compelled at any time to remain with Hunt or other members of the club or to go anywhere with them, doing both freely and voluntarily. She agreed to wear and did in fact wear Hunt’s “colors”, his jacket ²⁹² with “Property of Foggy” emblazoned on the back. 6 On the evening of 21 April the group ended up at Hunt’s house. While listening to records the lights were turned out and everybody “sort of dozed off.” The next morning Barbara was gone. They “were sort of laughing at [Hunt] because Barbara left and didn’t tell him anything.” It was denied that during Barbara’s sojourn with the Heathens she took dope.

THE SUFFICIENCY OF THE EVIDENCE We resolve first the question of the sufficiency of the evidence to sustain the convictions. It is before us on the denial of a motion for judgment of acquittal made at the close of all the evidence. The test is whether the evidence either showed directly or supported a rational inference of the facts to be proved from which the trier of fact could be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. Williams v. State, 5 Md. App. 450, 459 .

The basis of Hunt’s contention, and properly so on the posture of the evidence, is that the State’s case stands or falls on the testimony of the victim. 7 He claims that it must fall since her testimony had no probative value because of the inconsistencies in it, relying on Kucharczyk v. State, 235 Md. 334 . We do not find the holding of Kucharczyk to be applicable. Barbara’s testimony was not so contradictory within itself as to preclude the consideration of it. See Poff v. State, 3 Md. App. 289 .

Such inconsistencies as were in it only went to its weight and to her credibility. These matters, as well as contradictions to her testimony presented by the testimony of other witnesses and other evidence, were properly to be resolved by the jury. See ²⁹³ Bailey v. State, 6 Md. App. 496 ; Eley v. State, 4 Md. App. 230. Thus the lower court did not err in submitting it to them, for if the jury believed Barbara, her testimony provided evidence meeting the test.

Therefore, we find the evidence sufficient in law to sustain the convictions and hold that the lower court did not err in denying the motion for judgment of acquittal. THE JURY The Voir Dire Examination The court, as it may, elected to conduct the examination of prospective jurors itself and itself submitted additional questions suggested by Hunt’s counsel as it deemed proper. Maryland Rule 745. Hunt now contends that the court erred “in preventing defense counsel from asking additional voir dire questions for cause.” According to the transcript of the proceedings what occurred was that after the examination of the prospective jurors on their voir dire had been concluded, Hunt’s counsel said, “I would like to ask an occasional question for voir dire purposes of specific individuals, information, that is, to their background which is not indicated in the sheet which gives their names and for whom they work.

I would first like to ask an occasional question.” The court said it would ask a prospective juror whether he was married and his occupation. “That’s all I’ll do.” We see no error in the refusal of the court to grant counsel’s vague request for blanket permission to ask “an occasional question” of specific but undesignated individuals concerning “their background.” See Carder v. State, 5 Md. App. 531 ; Curtis v. State, 4 Md. App. 499; Day v. State, 2 Md. App. 334 . The Striking of Juror No. 11 After twelve jurors and two alternate jurors had been selected, Juror No. 11 informed the court that he knew the man sitting in the courtroom with Barbara Jean ²⁹⁴ Stec. 8 “I don’t know the girl, I know him.” The court asked, “Alright, would that affect you in rendering a fair and just verdict in this case?” Juror No. 11 replied, “I’m afraid so, I know him real well, he’s from Curtis Bay.” Although the transcript does not expressly so state, from later developments it appears that this colloquy between the court and Juror No. 11 took place at the bench out of the presence of the defendants and their counsel. The court announced: “Mr. Bathgate, who is Juror Number 11, says that he does know the person who is sitting alongside of Barbara Jean Stec in the balcony, and that such knowledge would prevent him from rendering a fair and just verdict in this case. In this case, the Court has no alternative but to strike him on its own motion.

You are excused, sir. Alternate Juror Number 1, you will move in to Number 11. Alternate Juror Number 2 will now become Alternate Juror Number 1. Gentlemen, there is the necessity for selecting an additional alternate Juror.” Hunt’s counsel, receiving permission to approach the bench, moved for a mistrial “because of the commentary regarding Juror Number 11.” The court asked him if the mistrial was moved on the grounds “that Mr. Bath-gate’s reason for asking to be disqualified as Juror Number 11 was stated in open court” and .counsel answered “Yes.” Asked why that would prejudice his client, counsel said: “I think that it was probably inappropriate to speak to the Juror out of the presence of counsel and also that the following commentary that he knew the person sitting next to the girl and then was taken out indicates the knowledge of ²⁹⁵ someone with the girl and in the presence of other prospective Jurors, I believe it would be prejudicial.

That sums it up.” The motion for mistrial was denied. We think the denial proper. We can conceive of no prejudice to Hunt by reason of the striking of Juror No. 11 in open court and the announcement by the court of the reason therefor. We observe that counsel neither below nor in the brief on appeal stated with specificity the prejudice he believed accrued by the court’s action.

Nor do we feel in the circumstances that the colloquy between the court and Juror No. 11 denied Hunt either his right to be present at all stages of the trial or his right to representation by counsel. We do not think that this communication between the court and the Juror was a stage of the trial. See Young v. State, 5 Md. App. 883 , construing Midgett v. State, 216 Md. 26 . In any event, the court immediately made known to Hunt and his counsel what the Juror had communicated to him and action was taken on the communication in the presence of both of them.

We find it clear from the record that the communication was not prejudicial and had no tendency to influence the verdict of the jury. Saul v. State, 6 Md. App. 540 ; affirmed on certiorari, State v. Saul, 258 Md. 100 , is not factually apposite. The Challenge to the Array As Alternate Juror No. 1 replaced Juror No. 11 and Alternate Juror No. 2 became Alternate Juror No. 1, a second alternate juror was selected. There were no further preemptory challenges or challenges for cause made by the prosecution or defense.

The prospective jury and the two alternates were asked if there was any reason they may have that would prevent in any way the rendering of a fair and just verdict; they had no reason. The transcript reads: “Clerk swears in jury.” The court gave the jury comprehensive admonitions concerning discussion of the case, and receiving information ²⁹⁶ about it from outside sources. It explained the routine expected to be followed in the trial and the function of the alternate jurors. The transcript then reads, “(Jury is sworn and indictments read.)” 9 After luncheon recess court resumed out of the presence of the jury to entertain motions.

Hunt’s counsel challenged the array. 10 He based the challenge on two grounds: 1) the exclusion from juries of persons under the age of 25 years, and 2) the excusing of persons from jury service by the Jury Commissioner for the Circuit Court for Anne Arundel County. (1) At the time of the trial Code, Art. 51, § 1 provided: “No person shall be selected and placed upon a panel as a juror who shall not have arrived at the age of twenty-five years.” 11 Also at the time of trial § 5-500 of the Anne Arundel County Code (Michie 1967) provided for the preparation and the filing by the clerk to the county council with the clerk of the Circuit Court of a list of all taxable residents of the county whose names appear on the tax books “and who are not known to the clerk or ²⁹⁷ to the council to be under the age of twenty-five years.” A jury panel was picked from this list and other sources, including the poll books of the several councilmanic districts. Hunt claims that the elimination of those under 25 years of age deprived him of equal protection of the law. We do not agree.

Assuming that those under 25 years of age were eliminated from the jury in Hunt’s trial we see no constitutional infirmity. There is nothing unreasonable in requiring a juror to be at least 25 years old. There must be some cut-off point and Hunt does not explain, nor do we see, why equal protection is denied at a 25 years of age cut-off but afforded, as he seems to suggest, at a 21 years of age cut-off. See Britton v. Bullen, 275 F. Supp. 756 (4th cir.).

Nor do we find any merit in the argument that to be a jury of his peers the jurors must be the approximate age of the defendant before them. In any event we do not find evidence sufficient to establish that those under 25 years of age were excluded from the jury here due to a systematic policy rooted in prejudice. See Borman v. State, 1 Md. App. 276 . We note that the provisions of Art. 51, § 1 are directory, rather than mandatory, Hollars v. State, 125 Md. 367 , and there is no evidence that some prospective jurors were excluded as under 25 years of age at the mere whim or caprice of the selecting authorities.

And we do not feel that the rationale of cases holding unconstitutional systematic exclusion because of race or religion is applicable to the issue here. See Brooks v. State, 3 Md. App. 485 ; Grayson v. State, 1 Md. App. 548 . (2) The Jury Commissioner for Anne Arundel County, called by Hunt, testified as to the procedure followed in drawing a jury panel. She said that some persons were excused by reason of financial and physical hardship.

For example, women who have no transportation, mothers unable to obtain baby sitters for their young children, and those impaired by ill health may be excused. Hunt concludes from her testimony that she alone determined ²⁹⁸ whether or not a prospective juror should be excused». from serving. He claims that it is a judicial function to assure that the jury panel consists of 300 names of citizens of the County, fairly and impartially selected, with special reference to the intelligence, sobriety and integrity of such persons, Anne Arundel County Code, § 5-501, and that the Jury Commissioner usurped the authority of the judge. We do not think that the testimony of the Jury Commissioner established that she had the final determination as to who was to serve and who was to be excused.

Although she talked in terms of “we” and sometimes “I” we believe it implicit from what she said that any final action taken was under the direction of the jury judge. But in any event the evidence did not establish a constitutional infirmity in the selection of the persons which comprised Hunt’s jury. Even if the statutory requirements were not strictly followed it is evident from all her testimony that the objective in the selection procedure was to get persons of intelligence, integrity, and sobriety. See Loker v. State, 2 Md. App. 1, 15 .

The lower court characterized the procedure as followed “to ensure a Jury that is able to comprehend what is going on before it and ably physically to understand what the court takes to be the rigors of the jury trial itself.” We cannot say from the record here that Hunt was foreclosed from obtaining a fair trial by an impartial jury of his peers. We agree with the lower court that his contentions were without merit. We hold that it did not err in denying the challenge to the array. PRESENCE AT TRIAL OF THE VICTIM’S PARENTS When the trial was about to begin all witnesses were excluded from the courtroom at the request of the State.

Rule 753. At a bench conference Hunt’s counsel requested that the parents of Barbara Jean Stec be excluded from the courtroom although they were not to be called as witnesses for either the prosecution or the defense. The reason given was “so there cannot be a communication as to what is going on in this court * * * I ²⁹⁹ don’t want the communication between the parents and their daughter about this —.” The court in denying the request said that it would admonish all persons in the courtroom not to communicate with any of the witnesses or prospective witnesses. It did so in plain words, expressly including relatives of witnesses.

The court did not err in the refusal of the request on the ground advanced, which in any event Hunt appears to have abandoned on appeal. Now Hunt presents a different ground. He claims prejudice because Juror No. 11 told the judge he knew the man seated next to the victim and that man and the woman next to him were the victim’s parents. “That juror was excused but the fact of the parent’s presence in the courtroom thereafter and the fact that a reputable juror knew the parent of the alleged victim was implanted in the remaining juror’s minds. Further, during the trial, the parents sat apart from the rest of the gallery in such a manner that attention would be drawn to them.

Due to the above factors it was impossible for the defendant to receive a fair trial by an impartial jury.” This point was not tried and decided below and is not before us. Rule 1085. The record does not disclose that at the trial objection was made to the place in which the parents sat in the courtroom. We find the allegation of prejudice to be unsupported and without substance.

THE ADMISSION OF EVIDENCE The Affidavit for the Issuance of a Search Warrant During the cross-examination of Barbara by counsel for Sprinkle, he asked if she appeared before Judge Maguire, an Associate Judge of the Circuit Court for Baltimore County, on 23 April. She said that she had. It was then elicited through questions asked of her that she made an affidavit. She was shown a document and asked to identify it.

She identified it as a photo-copy of the affidavit she had signed. She was asked if what was stated in the affidavit was all true and she said it was. Nu ³⁰⁰ merous questions about specific statements in the affidavit were directed to her, including whether what was set out in the affidavit accurately represented what she had said. She was then asked to explain alleged discrepancies between her testimony at trial and the statements in the affidavit.

At one point when defense counsel purported to repeat what was said in the affidavit the State obj ected on the ground that the affidavit did not so say. The court was shown the affidavit and sustained the objection, permitting counsel to rephrase his question. Counsel then read from the affidavit and asked the witness if that was her statement. He then pressed her on the issue whether the statement in the affidavit was correct or incorrect.

In short, Barbara was examined by the defense at great length and fine detail on the representations made by her in the affidavit. The affidavit was in support of a search and seizure warrant of Hunt’s residence. Although it was not formally introduced in evidence by the defense it was, by the reference to it under the circumstances, before the jury as fully as if it had been so introduced. And even though the cross-examination was conducted by Sprinkle’s counsel, Hunt’s counsel interposed no objection whatsoever.

When the cross-examination of Barbara by all counsel was completed, the State moved the admission of the affidavit. It does not appear from the record before us that Hunt’s counsel objected but even if he did we see no prejudicial error in its formal admission. In the light of the extent to which its contents were placed before the jury by the defense, the jury were entitled to consider the affidavit itself. The Extra-judicial Statement of Paul Fischer On cross-examination by counsel for Grabriszeski, Paul Fischer, a witness called by the State, was asked: “Mr. Fischer, as a result of what you observed and have testified to this morning, regarding the incidents of April the 19th, you were taken to Baltimore County Detective Bureau to reduce that to writing, were you not ?” He answered in the affirmative.

It was then elicited that he had ³⁰¹ been interviewed by a Detective Neuner on 24 April and gave a statement which was reduced to writing and signed by him. He was shown a photostatic copy of that statement and identified it as a copy of the document he had signed. Then with the suggestion that his memory was “a lot fresher” on 24 April than at the time of trial, he was asked to explain differences between specific assertions in the statement and his testimony and attempted to do so. For example, he was referred to his testimony relating to a ride in an automobile with members of The Heathens. “You were asked whether the girls in the car — did the girls in the car say or do anything in your presence?

Well, they talked but I don’t know what they were talking about. Well, in your answer on the 24th you said, ‘No, they just sat quiet * * *’, now did they or did they not say anything to you?” Fischer replied, “Not to me they didn’t say anything, no. They were — * * * they seemed real quiet. The person that was talking was mostly Foggy.” The State took over the witness on redirect.

It asked if the statement defense counsel had shown him was the one he made to the police. Hunt’s counsel objected and there was a bench conference. The jury was sent to the jury room. The State offered in evidence the statement made by Fischer to the police on 24 April.

Over continuing objection Fischer was referred to the second question on page 5 and requested to read it to the court. It was “Did the girls in the car say or do anything in your presence?” The answer to the question was read, “No, they just sat quiet the one girl with the brown hair and glasses acted like she was moving real slow as if she was under some type of influence. I did see two of the males drinking wine.” The State offered the original of the statement. Hunt’s counsel argued that the statement was inadmissible as an attempt by the State to impeach its own witness and as placing something in evidence on redirect examination which could not have been introduced on direct examination.

Counsel for other defendants also objected and argued. The court ruled: ³⁰² “All right, the Court has considered the statement and had an opportunity to peruse its contents and the Court’s ruling is that it will permit the State to ask the witness to read the balance of the statement that he gave with response to the girls in car to which reference was made by Mr. Friedman during cross-examination. However, it rules that the entire statement shall not be submitted to the Jury and that it is not competent evidence in its entirety.” In the presence of the jury the question in the statement with respect to the girls in the car talking was read to Fischer and he was asked if he remembered that question being asked of him. He said he did.

The Assistant State’s Attorney then said, “And this was your answer [reading it] is that correct?” Fischer replied, “Yes, sir, I’d say that was correct.” Without citation of authority, Hunt now contends that this “procedure was grossly leading, was a variation of impeachment by the State of its own witness and was totally improper.” We do not agree. Counsel for Gabriszeski, on cross-examination and with no objection from counsel for Hunt, read part of the answer given in the statement in the presence of the jury: We see no reversible error in the State following this up by introducing the balance of the answer. “The offer in testimony of a part of a statement or conversation, upon a well established rule of evidence, always gives the opposite party the right to have the whole.” Walters v. State, 156