Hall v. State

• Decision Date: 22 July 1974
• Docket Number: No. 971,971
• Citation: 22 Md.App. 240,323 A.2d 435
• Parties: John Linwood HALL v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 240

22 Md.App. 240

323 A.2d 435

John Linwood HALL v. STATE of Maryland.

No. 971.

Court of Special Appeals of Maryland.

July 22, 1974.

Courtland K. Townsend, Jr., Rockville, for appellant.

Leroy Handwerger, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Andrew L. Sonner, State's Atty., for Montgomery County and Darrel L. Longest, Deputy State's Atty., for Montgomery County, on the brief, for appellee.

Before ORTH, C. J., and MOYLAN and LOWE, JJ.

LOWE, Judge.

The elasticity of our Constitution is the unique ingredient which distinguishes the successful American experiment in democracy from more obdurate precurors which have failed elsewhere. Our Constitution, and our laws as well, are adopted so as to permit expansion or contraction in order to meet the changing needs of the people. Judge Pound has said that '(t)he law of each age is ultimately what that age thinks should be the law.' ¹ More succinctly stated, law is like wearing apparel, it changes with the times.

Procedural rules, however, are not permitted the luxury of such elasticity of application or interpretation. Like rules of a game they cannot be equivocal. The Maryland Rules of Procedure limit and define the course of conduct litigants are compelled to pursue in preparation for and during trials. If it is important that statutes provide degrees of flexibility (to adapt to the human equation), it is equally important that the rules applicable to trials be precise. ² A litigant- especially one defending his freedom-must know without question the exact limits within which he may maneuver. The goals of social justice and individual rights are achieved by rules written with precision and laws adaptable to the exigencies of the people they govern. It is when laws are inflexible and rules imprecise that the blindfold of the lady justice takes on a meaning not intended by that symbol. While an inflexible law has given rise to our problem, a precise rule has provided us the solution.

John Linwood Hall was charged in a six count indictment with offenses ranging from assault with intent to murder to possession of a handgun with intent to injure. He was convicted by a jury of the Circuit Court for Montgomery County of assault with intent to maim and the use of a handgun in the commission of a felony. Judge Joseph M. Mathias imposed consecutive sentences of two and five years.

Although Appellant raises four questions, the emphasis of his appeal rests upon the trial court's refusal to permit him a 'challenge' jury (i. e., the right to twenty peremptory challenges under Md. Rule 746 a 1) as opposed to a 'strike' jury (i. e., the right to only four peremptory challenges under Md. Rule 746 a 2). ³

Md. Rule 746 a 1 permits a defendant twenty peremptory challenges '(i)n a trial in which the defendant is subject, on any single count, to a sentence of death, life imprisonment or twenty years or more of imprisonment . . ..' (Emphasis added.) Appellant points out that assault with intent to murder carries a fifteen year sentence, Md. Code, Art. 27, § 12, and that the use of a handgun in the commission of that crime requires a mandatory minimum penalty of five years, Md. Code, Art. 27, § 36B(d). These sentences, he contends, add up to the twenty years called for by Md. Rule 746 as a prerequisite to a 'challenge' jury.

Appellant reads into the handgun law a legislative intent not to create '. . . a separate crime, but . . . a vehicle for adding on an additional period of mandatory consecutive ⁴ time to the sentence for any felony of which the defendant is convicted, wherein he is found to have committed the felony with a hand gun.' If that premise is correct the Legislature had a peculiar way of expressing it.

'(d) Unlawful use of handgun in commission of crime.-

Any person who shall use a handgun in the commission of any felony or any crime of violence as defined in § 441 of this article, shall be guilty of a separate misdemeanor and on conviction thereof shall, in addition to any other sentence imposed by virtue of commission of said felony or misdemeanor, be sentenced to the Maryland Division of Correction for a term of not less than five nor more than fifteen years, and it is mandatory upon the court to impose no less than the minimum sentence of five years.' (Emphasis added.) Md. Code, Art. 27, § 36B(d).

It seems quite obvious that the Legislature used a unique procedure in requiring a mandatory minimum sentence and in expressing its intent that the misdemeanor be a 'separate' crime, and not merely the occasion for imposing an additional sentence.

In addition to recognizing Appellant's ingenuity in raising this issue, we appreciate his concern in attempting to assert a right '. . . deemed a most essential one to a prisoner . . . highly esteemed and protected in law.' Turpin v. State, 55 Md. 462, 464, quoting Proffat on Jury Trials, § 155. We are reminded, however, by Stilson v. United States, 250 U.S. 583, 586-587, 40 S.Ct. 28, 63 L.Ed. 1154 that there is nothing in the Constitution of the United States (or of Maryland for that matter) which requires the granting of peremptory challenges. It is a privilege granted by legislative authority which must be taken with the limitations placed upon the manner of its exercise.

At common law a '. . . defendant was allowed to challenge peremptorily 35 jurors, and the prosecutor originally had a right to challenge any number of jurors without cause, a right which was said to tend to 'infinite delayes and danger.' Coke on Littleton 156 (14th ed. 1791).' (Footnotes omitted.) Swain v. Alabama, 380 U.S. 202, 212-213, 85 S.Ct. 824, 832, 13 L.Ed.2d 759. Courts and Legislatures have attempted to balance these 'infinite delayes and danger' with the retention of a highly desirable procedural privilege. The overloaded court dockets and overburdened tax payers have been somewhat assuaged by laws and rules which limit the number of challenges to 20 by the defendant and 10 by the State, and which confine the privilege to charges carrying extraordinary penalties.

The rapid increase in criminal court case loads and in criticism of the challenge jury, see Swain v. Alabama, supra, 216, 85 S.Ct. 824, has led to the imposition of additional restrictions on the privilege. Effective September 1, 1971, Rule 746 was amended to restrict the challenge jury to trials in which the defendant was subject to a '. . . sentence of death, life imprisonment or twenty years or more of imprisonment . . ..' Prior to that date, the Rule applied to any defendant charged with '. . . an offense punishable by death or confinement in the penitentiary . . .,' regardless of the length of his sentence, Pearson v. State, 15 Md.App. 462, 467, 291 A.2d 167, since 'confinement in the penitentiary is an infamous punishment,' ⁵ Danner v. State, 89 Md. 220, 226, 42 A. 965, 967. When it became clear that the criterion was so broad as to threaten the responsible conduct of criminal trials, the Court of Appeals imposed a clear and precise cut-off at twenty years penal exposure.

In a further attempt to avoid confusion and litigation, the Court honed the sharp edge of demarcation even more precisely by providing that the rule was to apply whenever the defendant was subject to certain punishment 'on any single count,' in lieu of 'for an offense.' That language was not chosen fortuitously but was designed as one of the 'precise rubics' which the Court of Appeals have repeatedly advised counsel are not mere '. . . guides to the practice of law' and must not only be read but followed. Isen v. Phoenix Assurance Co., 259 Md. 564, 570, 270 A.2d 476, 479; Brown v. Fraley, 272 Md. 480, 483; Green v. State, 19 Md.App. 683, 687, 313 A.2d 572; In re Arnold, 12 Md.App. 384, 394, 278 A.2d 658.

We are satisfied that neither the Legislature in enacting Md. Code, Art. 27, § 36B(d) nor the Court of Appeals in adopting Md. Rule 746, as amended, had any intention of permitting a combination of two sentences under separate counts to entitle a defendant to a challenge jury. On the contrary, we find precise language in the statute and the rule negating any such intent.

Appellant also attempts to raise for the first time on appeal the issue of the unconstitutionality of Md. Rule 746. On matters of such import and significance as constitutional questions, we cannot overstress the necessity of fully preserving the issue below. The trial court should be given not only the opportunity to rule, but also the assistance of counsels' arguments and memoranda in reaching its result. Again we repeat the message of Vuitch v. State, 10 Md.App. 389, 397-398, 271 A.2d 371, 376:

'In concluding that the constitutional questions now sought to be raised were not properly preserved for appellate review, we do not seek to delay the day when these important public issues must be squarely met and decided, either by us, or the Court of Appeals of Maryland. But it would be foolhardy in the extreme to undertake the resolution of such complex constitutional questions upon a record as procedurally and substantively deficient as that now before us-one in which the constitutional questions, though readily apparent prior to trial, were raised for the first time after the State had concluded its case-in-chief, and then only by an inappropriate motion (generally alleging unconstitutionality along a front far more limited in thrust than that presently sought be to aired), submitted without comment, or illuminating argument. Whether the trial judge actually considered appellant's constitutional claims cannot be ascertained from the record since in denying the motion he made no comment thereon, and may well have concluded, quite properly, that the constitutional questions could not be raised at that juncture of the proceedings by motion for judgment of acquittal. Of course, nothing is better settled than the rule that a question as to the constitutionality of a statute will not be considered on...