Bundy v. State, 69
| Citation | 334 Md. 131,638 A.2d 84 |
| Decision Date | 01 September 1993 |
| Docket Number | No. 69,69 |
| Parties | Melvin BUNDY v. STATE of Maryland |
| Court | Court of Appeals of Maryland |
Devy Patterson Russell, Asst. Public Defender, argued and on brief (Stephen E. Harris, Public Defender, on brief), Baltimore, for petitioner.
Mary Ellen Barbera, Asst. Atty. Gen., argued and on brief (J. Joseph Curran, Jr., Atty. Gen., on brief), Baltimore, for respondent.
Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, CHASANOW, ROBERT M. BELL and RAKER, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (Retired, Specially Assigned).
We granted Melvin Bundy's petition for a writ of certiorari to consider whether Bundy adequately preserved for appellate review his contention that the trial judge erroneously permitted the State to exercise more than four peremptory challenges. In Bundy's appeal to the Court of Special Appeals, the intermediate appellate court first opined that the State was entitled to only four peremptory challenges in the consolidated trial of Bundy and a codefendant. See Maryland Code (1974, 1989 Repl.Vol.), Courts and Judicial Proceedings Article, § 8-301(d) (). See also Maryland Rule 4-313(a)(1). That court, however, held that Bundy's "objection was not timely made" and that the peremptory challenge issue was "not properly preserved for appellate review." Bundy v. State, 95 Md.App. 512, 535, 622 A.2d 175, 187 (1993). Bundy disputes this conclusion, contending that his objection was timely and that, since the State exceeded the permitted number of peremptory challenges, his conviction must be reversed. For the reasons discussed below, we hold that Bundy sufficiently preserved for appellate review the issue of how many peremptory challenges the State should have been afforded.
Bundy was charged with theft of goods valued at $300.00 or more. He elected to be tried by a Baltimore City jury and his trial was consolidated with that of a codefendant. 1 The jury selection process began, and with it, the exercise of peremptory challenges by Bundy, his codefendant, and the State. After the State had exercised four peremptory challenges, the Assistant State's Attorney asserted, "I believe I'm entitled to eight [challenges]," to which the judge responded, Subsequently, the State exercised a fifth peremptory challenge and the stricken juror was directed to return to the jury assembly room. At this point, counsel for Bundy's codefendant declared, The judge immediately reiterated, After this ruling, the State exercised a sixth challenge, which was followed by the selection of the alternate juror. Thereupon, Bundy's counsel asked to approach the bench and the following bench conference took place:
The judge decided to recess for the day, instructed the jurors that trial would resume the following morning, and dismissed them. After the jurors had left, the discussion about the State's peremptory challenges continued:
"[BUNDY'S ATTORNEY]: Your Honor, if I may, I know you have already ruled on the issue of the peremptory challenges, but I would like to be able to pull some law.
* * * * * *
I think the State is only allowed four strikes in this case. I would like over night just to do a little bit of research on the law and bring [it] to the Court tomorrow and perhaps before the jury comes back.
The following day, the judge resumed the peremptory challenge discussion by noting, After a lengthy discussion on this topic, the judge reiterated his belief that the State seemed to be entitled to eight peremptory challenges and thus concluded, "I'm going to deny your request that this panel be dismissed and a new jury be selected."
The trial proceeded and Bundy was convicted of theft of goods valued at $300.00 or more. Bundy appealed his conviction to the Court of Special Appeals, alleging that the trial court erred in granting the State eight peremptory challenges. In a detailed opinion by Judge Moylan, the intermediate appellate court traced the legislative history behind § 8-301 of the Courts and Judicial Proceedings Article, which entitles "each party" to four peremptory challenges in a case such as Bundy's. In accordance with Bundy's contention that the State remains a single party, even when it prosecutes multiple defendants in the same trial, Judge Moylan concluded as follows:
Bundy, 95 Md.App. at 531, 622 A.2d at 185. Despite this conclusion, the Court of Special Appeals held that Bundy's objection was untimely and that the peremptory challenge issue was not properly preserved for appellate review. The court stated that neither defendant objected until after "the prospective jurors who had been earlier challenged had left the courtroom and returned to the jury assembly room" and after the alternate juror was accepted. Bundy, 95 Md.App. at 534, 622 A.2d at 186.
In its answer to Bundy's petition for a writ of certiorari, the State concedes that it "does not here challenge" the Court of Special Appeals' conclusion that the State was entitled to only four peremptory challenges in the instant case. The State, however, does challenge Bundy's assertion that his objection adequately preserved the issue for appellate review.
The State and Bundy disagree over whether Maryland Rules 8-131(a) and 4-323(c), concerning the preservation of issues for appellate review, were complied with in the instant case. Rule 8-131(a) provides that, "[o]rdinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court...." At trial, a significant amount of time was devoted to the issue of how many peremptory challenges the State was entitled to exercise. Before affirming his earlier ruling that the peremptory challenges, the trial judge permitted Bundy's attorney to research the issue, asked the Assistant State's Attorney also to do some overnight research, and entertained a lengthy discussion regarding the results of the parties' research. Thus, Rule 8-131(a) was clearly satisfied as it "plainly appears by the record [that the peremptory challenge issue was] raised in or decided by the trial court...." Md.Rule 8-131(a).
The State, however, also contends that Bundy failed to comply with Maryland Rule 4-323(c). Rule 4-323(c) provides that, "[f]or purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court." 2 See Graham v. State, 325 Md. 398, 411, 601 A.2d 131, 137 (1992) (). This rule is premised on the notion that "[t]he ends of justice are served by the avoidance of delay and expense incident to appeals and new trials upon grounds of objection which might have been obviated and corrected in the trial...
To continue reading
Request your trial
-
Whitney v. State
...that "[y]ou each get four strikes[.]" Nevertheless, she was obligated to correct the trial judge's misstatement. See Bundy v. State, 334 Md. 131, 139-40, 638 A.2d 84 (1994) (incumbent upon litigant to object) (quoting Covington v. State, 282 Md. 540, 543, 386 A.2d 336 (1978)). Cf. William T......
-
Baker v. State
...we held that counsel preserved the objection by making known to the trial court what he wanted done.2See also Bundy v. State, 334 Md. 131, 638 A.2d 84 (1994) (Rule 4-323(c) was satisfied where "counsel's statement put the trial judge on notice of her complaint that the State just exceeded i......
-
Sayles v. State
...Id. An exception to this rule exists when the trial court makes clear that its ruling applies to all defendants. Bundy v. State , 334 Md. 131, 145-47, 638 A.2d 84 (1994). We are persuaded that Sayles objected to all three of the nullification instructions on the basis that the instructions ......
-
Ray-Simmons v. State, 28, Sept. Term, 2015.
...objection 446 Md. 442really should be allowed to preserve the issue, at least for all similarly situated parties." Bundy v. State, 334 Md. 131, 146, 638 A.2d 84 (1994) (quoting Joseph F. Murphy, Jr., Maryland Evidence Handbook § 102(C), at 13 (2d ed. 1993)). The State's exercise of perempto......