Bundy v. State

• Decision Date: 01 September 1992
• Docket Number: No. 929,929
• Citation: 622 A.2d 175,95 Md.App. 512
• Parties: Melvin BUNDY v. STATE of Maryland. ,
• Court: Court of Special Appeals of Maryland

Page 512

95 Md.App. 512

622 A.2d 175

Melvin BUNDY v. STATE of Maryland.

No. 929, Sept. Term, 1992.

Court of Special Appeals of Maryland.

April 1, 1993.

Devy Patterson, Asst. Public Defender (Stephen E. Harris, Public Defender, on the brief), Baltimore, for appellant.

Mariclaire Driscoll, Asst. Atty. Gen. (J. Joseph Curran, Jr., Atty. Gen., Mary Ellen Barbera, Asst. Atty. Gen. and Stuart O. Simms, State's Atty. for Baltimore City, on the brief), Baltimore, for appellee.

Argued before WILNER, C.J., and MOYLAN, and JAMES S. GETTY (Retired), Specially Assigned, JJ.

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).

See also Md.Rule 4-313(a)(1). 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). 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 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 contrast, dealt not simply with lesser criminal cases but also with all 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.

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 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...