State v. Ghajari

CHASANOW, Judge. Hossein Ghajari, Respondent in this action, was charged with two counts of child abduction pursuant to Maryland Code (1957, 1996 Repl.Vol.), Article 27, § 2 1 (hereinafter § 2) and two counts of child abduction by a relative pursuant to Md. Code (1984, 1991 Repl.Vol., 1996 Supp.), Family Lav/ .Art., § 9-305 (hereinafter § 9-305). Section 2 states, in pertinent part: “Any person who shall without the color of right forcibly abduct, take or carry away any child under the age of twelve years from the home or usual place of abode of such child, or from the custody and control of the parent or ¹⁰⁴ parents, or lawful guardian or guardians of such child, or be accessory thereto, or who shall without such color of right and against the consent of the parent or parents or lawful guardian or guardians of such child, persuade or entice from the usual place of abode or house of such child, or from the custody and control of the parent or parents, or guardian or guardians of such child, or be accessory thereto, or shall knowingly secrete or harbor such child, or be accessory thereto, with the intent to deprive such parent or parents, guardian or guardians, or any person who may be in lawful possession of such child, of the custody, care and control of such child, shall be guilty of a felony, and upon conviction shall suffer imprisonment in the penitentiary for a term not exceeding twenty years, in the discretion of the court.” Section 9-305 pertains specifically to child abduction by a relative, and it states: “If a child is under the age of 16 years, a relative who knows that another person is the lawful custodian of the child may not: (1) abduct, take, or carry away the child from the lawful custodian to a place outside of this State; (2) having acquired lawful possession of the child, detain the child outside of this State for more than 48 hours after the lawful custodian demands that the child be returned; (3) harbor or hide the child outside of this State knowing that possession of the child was obtained by another relative in violation of this section; or (4) act as an accessory to an act prohibited by this section.” In the Circuit Court for Carroll County, Respondent entered a plea of not guilty on all counts, and both parties agreed to proceed on the following statement of facts: “On or about March 16th, 1990, at 349 Bishop Street, Apartment V, Westminster, Carroll County, Maryland, the [Respondent], Hossein Nasri Ghajari, did, without the color of right and against the consent of the parent, lawful custodian and natural mother, Homayoun [Tajali Bakhsh], ¹⁰⁵ did persuade and entice Simin Ghajari, the daughter, date of birth July 13, 1982, and Siavash Ghajari, the son, date of birth April 23rd, 1984, from the home of Simin and Siavash Ghajari, that was located at 349 Bishop Street, Westminster, Carroll County, Maryland, and he did transport the children to the State of New York, in the United States, and from there to the country of Iran, and did keep, secrete, and harbor the children there with the intent to deprive their mother of the custody, care and control of the children, until such time [as] the children were ... recovered by their mother on June 27th, 1993, in Iran. [A]ll of this was being done contrary to the mother’s custodial right in the children, which prohibited the removal of the children from the State of Maryland in violation of Article 27, Section 2, as well as the Family Law Article he’s charged with. The [Respondent] also knew the mother was the lawful custodian of the children.

Specifically, the [Respondent] and Homayoun [Tajali Bakhsh] were married. They had two children, a daughter, Simin, born July 13th, 1982, and a son, Siavash, who was born on April 23rd of 1984. The [Respondent] and Homayoun separated in 1988. They entered into a Voluntary Separation and Property Agreement that was dated August 31st, 1988, wherein it was agreed that the wife, Homayoun, was to have custody of the two children, and that the [Respondent] was to have liberal visitation, but he was not to remove the children from the State without prior written consent from the wife.

The [Respondent] signed this agreement. On October 20th of 1988, a Consent Order was signed by [the Circuit Court for Carroll County] and the [Respondent] and Homayoun. In this Consent Order, the Court granted temporary care and custody of the children to the mother ... and it further ordered that the [Respondent] was to have reasonable visitation with the children with the following caveat: That the [Respondent] was not to remove the children from the State of Maryland without the prior written consent of the mother. ¹⁰⁶ The parties were divorced, absolutely, on April 20th, 1990, and Homayoun was granted custody, and the [Respondent] was granted reasonable visitation. On or about March 16th of 1990, the [Respondent] picked up his children, Simin, who was seven years old at the time, and Siavash, who was five at the time.

He picked them up from their home, located at 349 Bishop Street, Carroll County, Maryland. The [Respondent] was to have the two children for a weekend visitation and was to return them by 7 a.m. the morning of March 19th of 1990. The [Respondent] did not have written or oral permission from the natural mother ... to take the children out of the state. Plans to take the children out of the state or country were never discussed with the mother.

On March 19th, 1990, when the children were not returned to their home, Homayoun called their school and found that neither child was in school. The only person Homayoun knew to contact was a relative of the [Respondent], who she knew as Ali. This was ... who the [Respondent] was living with in New York at the time. When she contacted Ali, he provided the following information to her: That the [Respondent] borrowed his car to drive to Maryland to see his children.

On March 17th, 1990, Ali received a call from the [Respondent] stating that the car could be picked up at Kennedy Airport; that the [Respondent] had removed all his personal belongings from the residence in New York, and when the police contacted Ali later on, he told them that he went to Kennedy Airport to get his car, he saw the [Respondent] and the two children in a Delta Airline terminal but did not know where they were going. [At] 5:30 p.m. on March 19th, 1990, Homayoun called the [Respondent’s mother, who was living in Iran. She had a feeling that that’s where he would go. She talked to the [Respondent]. She could hear her children in the background, but the [Respondent] would not let her talk to them at that time.

The [Respondent] had to obtain passports for the children in order to travel to Iran, because Homayoun had the children’s passports at the time. At the time, the ¹⁰⁷ [Respondent] was an Iranian citizen and was in this country on a green card. During this phone call, she demanded the return of the children. She also demanded the return of the children when she talked with the [Respondent] when she would call ... the children on a monthly basis.

The [Respondent] refused and said it was her turn to be miserable. Homayoun did not see her children again for three years and two months. When she went back to Iran and found her children, she gave them the choice to stay in Iran or go home to the United States. Both children chose to return with their mother to the United States and did so on June 27th of 1993.

The children were nine and eleven when they came back to the United States. During their absence, Homayoun talked to the children once a month. She also talked with the [Respondent], who would continually try and persuade her to come back to Iran. [T]he children would testify that they were not aware their father was not to take them out of the state in March of 1990. He told them he was taking them to New York to visit relatives, and when he took them to the airport, he told them that they were going back home.

The [Respondent] would be identified by Homayoun and his two children, Simin and Siavash, as the individual who’s seated next to his attorney at [the] trial table. * * * [A]t no time did the [Respondent] have permission to take the children out of the state and out of the country. All of these events did occur in Carroll County, the [Respondent] having been identified.” The judge found Respondent guilty on all counts. Respondent was sentenced to two ten-year terms of imprisonment on the § 2 charges and two one-year terms of imprisonment on the § 9-305 charges, all to be served concurrently. All sentences were suspended on the condition that Respondent complete a five-year term of probation. ¹⁰⁸ Respondent appealed to the Court of Special Appeals.

He argued that § 9-305, pertaining to child abduction by a relative, was a specific variation of § 2, a general child abduction statute, and that, therefore, the trial court was allowed to impose, at most, a term of incarceration of one year, the maximum term of incarceration allowed by the specific statute. See Henry v. State, 273 Md. 131 , 133 n. 1, 328 A.2d 293 , 295 n.1 (1974). He also argued that the trial court erred in failing to merge the § 2 convictions into the § 9-305 convictions. See Johnson v. State, 283 Md. 196, 203-04 , 388 A.2d 926, 930 (1978).

The Court of Special Appeals held that a parent, even a non-custodial parent, whose parental rights have not been judicially terminated prior to the abduction of his or her child may not be prosecuted under § 2 for the abduction. 2 Ghajari v. State, 108 Md.App. 586, 592 , 673 A.2d 709, 712 (1996). The court reversed Respondent’s convictions under § 2 and affirmed his convictions under § 9-305. Ghajari, 108 Md.App. at 595 , 673 A.2d at 713 . This Court granted the State’s petition for a writ of certiorari to consider an issue of first impression in Maryland, 3 whether a non-custodial parent may be convicted of child abduction under both § 2 and § 9-305.

We also granted Respondent’s cross-petition for a writ of certiorari to consider whether, if a non-custodial parent can be convicted under both child abduction statutes, the penalty for such convictions is limited to the penalty prescribed by § 9-305 and whether a conviction under § 2 merges into a conviction under § 9-305. We agree that a non-custodial parent is exempt from prosecution under § 2. We shall, therefore, affirm the decision of the ¹⁰⁹ Court of Special Appeals. In light of our holding, the issues raised by Respondent’s cross-petition are moot.

I. Before reaching the merits of the case, we must first consider a motion to dismiss that has been filed by Respondent. The mandate of the Court of Special Appeals that reversed Respondent’s convictions under § 2 was issued on April 26, 1996. On May 3, 1996, a verdict of not guilty was entered on the docket as to each count of child abduction under § 2. Respondent argues that, under the doctrine of autrefois acquit, or former acquittal, this case must be dismissed because the State is prohibited from appealing from a judgment of acquittal and because a not guilty verdict may not be disturbed or revised by any Maryland court.

This is a correct statement of the law, however, only if a verdict of not guilty has been intentionally rendered by a court. In Daff v. State, we stated: “The principle embodied in the plea of autrefois acquit has been broadly interpreted. * * * Once a trial judge has intentionally rendered a verdict of not guilty, a subsequent change of mind is prohibited even though the judge may be convinced, even moments later, that the verdict was erroneous.” (Emphasis added). ( Citations omitted). 317 Md. 678, 684-85 , 566 A.2d 120, 123 (1989). After some investigation, counsel here informed this Court that Judge Burns did not enter or intend to enter any verdict with regard to the § 2 convictions and that the entry of the not guilty verdicts was not made by him or at his direction.

The verdicts of not guilty were mistakenly entered on the docket by a courthouse clerk. Because a judge did not render any verdict as to the § 2 charges of child abduction and the clerk was not authorized to enter the verdicts of not guilty, this Court is not prohibited from reviewing this case. Respondent’s motion to dismiss is denied. ¹¹⁰ II. The Maryland General Assembly passed a child stealing act in 1876.

Chapter 324 of the Acts of 1876. In 1888, the Act was recodified, in substantially the same form as it exists today, at § 2 of Art. 27. By its terms, § 2 applies to “[a]ny person” who, among other things, abducts a child under the age of twelve “without the color of right.” The intermediate appellate court, in an opinion written by now Chief Judge Joseph Murphy, reached its holding in this case primarily by explicating the phrase “without color of right” as it is used in § 2. The court stated that “[c]olor has been defined as ‘an appearance, semblance or simulacrum, as distinguished from that which is real.’ ” Ghajari, 108 Md.App. at 593 , 673 A.2d at 712 (quoting Black’s Law Dictionary 265 (6th ed.1990)).

The court then compared the term “color of right” to the term “color of state law,” which has been defined as: “ ‘Misuse of power, possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law....’” Id. (quoting United States v. Classic, 313 U.S. 299, 326 , 61 S.Ct. 1031, 1043 , 85 L.Ed. 1368, 1383 (1941)). Relying on these two definitions, the court held that § 2 could not apply to Respondent. Ghajari 108 Md. App. at 594 , 673 A.2d at 712 .

Section 2 applies only to persons who act “without color of right,” but, the court concluded that Respondent was “clothed with the ‘color of right’ to the custody of his children” by virtue of a Consent Order that granted him the right to visitation of his children. Ghajari 108 Md.App. at 593-94 , 673 A.2d at 712 . The court also discussed the intent of the General Assembly in enacting § 9-305. Ghajari 108 Md.App. at 594 , 673 A.2d at 712-13 .

The court’s review of the bill file for § 9-305 led the court to conclude: “The legislature enacted [§ 9-305] under the correct impression that Maryland law lacked criminal sanctions against non-custodial parents who snatch their children from the children’s custodial parents.” Id. One note in the bill file, written on the bill’s request form, states: “Maryland has no criminal penalties for ‘child-snatching’ by [a] ¹¹¹ parent or agent of [a] parent----” and explains that Senator Miller, the primary sponsor of the bill, was interested in covering such a situation. There is also a memorandum written at the request of and addressed to Senator Curran, another of the bill’s sponsors. It stated that perhaps the child stealing provisions need not be made broadly applicable to “relatives,” instead of merely to parents, because “the taking of a child by anyone other than a parent would be covered by federal kidnapping statutes.” (Emphasis in original).

These notations do suggest that the legislature may have been under the impression that there were no criminal sanctions available to punish child abduction by the child’s noncustodial parent. As the intermediate appellate court noted, § 2 was originally enacted in 1876, and its legislative history is unavailable. See Ghajari, 108 Md.App. at 594 n. 6, 673 A.2d at 713 n. 6. It is arguable, however, that § 2 did apply to noncustodial parents based on the plain language of the statute itself, which, by its terms, applied to “any person ... without color of right.” It should be noted, however, that the legislature did not define “person” or “color of right.” In addition, the Maryland Commission on Criminal Law suggested that § 2 applied to non-custodial parents in its proposed revisions to the criminal code.

Maryland Comm’n on Criminal Law, Report and Part I of the Proposed Criminal Code at 196 (1972). The introduction to Part 135, entitled, “Kidnapping, Coercion, and Related Offenses,” explains that what is broadly considered to be kidnapping is actually four “old misdemeanors,” abduction, child stealing, false imprisonment, and common law kidnapping. Concerning the offense of child stealing the Commission stated: “Usually the gist of the offense is depriving a parent or guardian of custody, and often the offender is a parent or relative. See Article 27, Section 2, of the Maryland Code, and note that the main kidnapping sections, Sections 337 and 338, except the case of taking by a parent of young children.” (Emphasis added). ¹¹² Id.

This may suggest that, as of 1972, § 2 was Maryland’s law on custodial interference via child stealing and that it applied to non-custodial parents and relatives. One reason that the legislators who enacted § 9-305 may have believed that § 2 did not apply to non-custodial parents is that, in fact, non-custodial parents were rarely prosecuted under § 2. One student commentator has suggested that noncustodial parents were rarely prosecuted under § 2 because the prosecutors did not think it appropriate to subject a noncustodial parent to a lengthy period of incarceration: “One theory for the lack