Hunt v. State

• Decision Date: 23 June 1971
• Docket Number: No. 513,513
• Citation: 278 A.2d 637,12 Md.App. 286
• Parties: Houston A. HUNT v. STATE of Maryland.
• Court: Court of Special Appeals of Maryland

Page 286

12 Md.App. 286

278 A.2d 637

Houston A. HUNT v. STATE of Maryland.

No. 513.

Court of Special Appeals of Maryland.

June 23, 1971.

[278 A.2d 640] Robert Allen Sapero, Baltimore, for appellant.

James L. Bundy, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Julian B. Stevens, Jr., State's Atty., for Anne Arundel County, Samuel A. Green, Jr., State's Atty., for Baltimore County, Gary Huddles and Stuart E. Hirsch, Asst. State's Attys., for Baltimore County, on brief, for appellee.

Argued before MURPHY, C. J., and ORTH and GILBERT, JJ.

ORTH, Judge.

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 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 to 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 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

                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
                conduct of the trial judge, the admission of evidence, closing arguments of the prosecutors, sufficiency of the evidence and merger of offenses
                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, 247 A.2d 731. 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, 201 A.2d 683. 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, 239 A.2d 121. 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

Bailey v. State, 6 Md.App. 496, 252 A.2d 85; Eley v. State, 4 Md.App. 230, 242 A.2d 175. 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, 248 A.2d 495; Curtis v. State, 4 Md.App. 499, 243 A.2d 656; Day v. State, 2 Md.App. 334, 234 A.2d 894.

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 '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.'

                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
                

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. Bathgate'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 is 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 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. 383, 247 A.2d 751, construing Midgett v. State, 216 Md. 26, 139 A.2d 209. 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...