Neville v. State

• Decision Date: 03 June 1981
• Docket Number: 33,Nos. 31,s. 31
• Citation: 430 A.2d 570,290 Md. 364
• Parties: Gary Earl NEVILLE v. STATE of Maryland. Howard Chester KELLY, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

Page 364

290 Md. 364

430 A.2d 570

Gary Earl NEVILLE v. STATE of Maryland.

Howard Chester KELLY, Jr. v. STATE of Maryland.

Nos. 31, 33.

Court of Appeals of Maryland.

June 3, 1981.

George E. Burns, Jr., Asst. Public Defender, Baltimore (Alan H. Murrell, Public Defender and J. Robert Johnson, Asst. Public Defender, Baltimore, on the brief), for appellant Neville.

Barbara Mello, Baltimore, and Timothy E. Meredith, Severna Park (Robert W. Warfield and Corbin, Heller & Warfield, Chartered, Severna Park, on the brief), for appellant Kelly.

Alice Pinderhughes, Asst. Atty. Gen. (Stephen H. Sachs, Atty. Gen., Baltimore, on the brief), for appellee.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

RODOWSKY, Judge.

These appeals in criminal cases which were consolidated for argument in this Court question the constitutionality, primarily on privacy and equal protection grounds, of the Maryland perverted practices statute. For the reasons set forth below, we affirm the convictions.

I

Appellant Howard Chester Kelly, Jr. (Kelly), then age 18, was tried before a jury in the Circuit Court for Anne Arundel County. His prosecution was initiated on the complaint of a 16-year-old female, Pat. A friend of Kelly, Ronald Holden (Holden), was tried jointly with Kelly.

Pat testified in substance that she was abducted at knife-point by Kelly and Holden from the Harundale Shopping Center in Glen Burnie on the afternoon of Friday, May 5, 1978. Pat said that she was taken by automobile to an abandoned nike missile site where she was raped by Holden and forced to perform fellatio on Kelly. Both Kelly and Holden took the stand and said Pat asked for a ride in their automobile. Each testified that a variety of two party and three party sexual acts were performed with Pat that afternoon, all with her consent and at her instigation. For purposes of the present appeal it is sufficient to note that Kelly testified Pat performed fellatio upon him, in the presence of Holden, outside of an old metal shed which was at one time used to store acid in connection with the former missile installation. There was also defense evidence concerning an admission made by Pat to an acquaintance that Pat picked up the two defendants and had sex with them, after which they abandoned her and that, in order to get revenge for the abandonment, Pat claimed to be the victim of forced sexual acts. Holden and Kelly testified that they left Pat at the site only after she became enraged because they disparaged the quality of her performance.

The jury found Kelly guilty of committing an unnatural and perverted sexual practice in violation of Md.Code (1957, 1976 Repl.Vol., 1980 Cum.Supp.), Art. 27, § 554. ¹ Kelly was acquitted of the charges of first and second degree rape, of first and second degree sexual offenses (Art. 27, §§ 462, 463, 464 and 464A), of common law assault and battery, and of kidnapping (Art. 27, § 337). ² By motion supported by an extensive legal memorandum, both filed on the day before trial on the merits commenced, Kelly attacked § 554 as violative of privacy, equal protection, and the prohibition against cruel and unusual punishment. Additionally, exception was taken by Kelly to the refusal to instruct the jury that consent was defensive to the perverted practice charge. This request was predicated on Kelly's argument that a constitutional right of privacy applied to the facts of his case. Kelly was sentenced to one year, service of the sentence was suspended and he was placed on supervised probation for three years. The conviction was affirmed by the Court of Special Appeals. Kelly v. State, 45 Md.App. 212, 412 A.2d 1274 (1980). We granted certiorari.

The first of three questions presented by Kelly in his petition for certiorari was "(w)hether the imposition of absolute criminal liability for private, consensual sexual conduct infringes a constitutionally protected right of privacy ...." (Emphasis added.) This question encompasses, under Md.Rule 813 a, the issue of whether the admitted sexual conduct was "private" for purposes of the asserted constitutional right. Having exercised our discretion to grant Kelly's petition and thereby to afford him a discretionary appeal, the case is treated like every other appeal with respect to the issue of "private" conduct. "And, as in every ordinary direct appeal, the rule is well established that an appellate court will normally affirm a trial court on a ground adequately shown by the record, even though that ground was not the one relied upon by the trial court." Robeson v. State, 285 Md. 498, 503-04, 403 A.2d 1221, 1224 (1979), cert. denied, 444 U.S. 1021, 100 S.Ct. 680, 62 L.Ed.2d 654 (1980). ³

The former missile site at which the conduct occurred is approximately two miles south of Fort Smallwood Park and lies east of Fort Smallwood Road which, in this area, may be considered as running north-south. Fronting on the east side of Fort Smallwood Road is a public school, described as comprised of both a lower school and an upper school. The abandoned nike facility lies behind, or east of, the public school. The distance from Fort Smallwood Road to the nike base was estimated to be one-quarter or from one-quarter to one-half mile. A road leads past the public school to the old military compound which is partially fenced and which is used occasionally as a dump. Kelly, Holden and Pat parked their car near the dumping area and at the foot of a "hill" of unspecified elevation. They got out of the car and drank some beer. Each participant testified that there was a pickup truck parked in the vicinity. Two men were scavenging cinder blocks and loading them in the truck. Kelly estimated the pickup truck to be 60 to 70 feet from where they parked. Holden testified that the two men were close enough to enable him to hear their conversation.

On the other side of the hill from the point where the participants' car was parked is a concrete slab on which sits the rusted out metal shed outside of which and in which the sexual activity took place. To the east of the metal shed is the home of the Bolander family. It was identified as also being the Stony Creek Rod and Gun Club. This house is approximately one-half block from the metal shed. The shed is not visible from the Bolander house because the intervening area is wooded. However, a path approximately three feet wide runs from the Bolander home, past the shed, toward the public school. The shed is visible from the path. Mrs. Bolander has seen the shed while using the path to pick up her 9-year-old daughter who attends the Fort Smallwood School. Also approximately one-half block from the metal shed, but on the other side of the path from the shed, is the skeet shooting area of the rod and gun club. On the afternoon in question, Mrs. Bolander's 9-year-old daughter and her son ⁴ were searching in the area of the skeet traps for the daughter's mislaid wallet. The 9-year-old daughter came upon Pat after the occurrence and brought her to the Bolander home where Mrs. Bolander telephoned the police.

II

The prosecution in No. 31 was based upon visual observations by Patrolman Dean Brewer of the Westminster Police Department. Gary Earl Neville (Neville), age 42, was charged in the Circuit Court for Carroll County with indecent exposure and, under § 554, with perverted sexual practice. On Saturday, August 12, 1978, at approximately 3:00 o'clock in the afternoon, Officer Brewer observed Neville and a 27-year-old female, Susan, walking along the railroad tracks which run parallel to Railroad Avenue within the municipal limits of Westminster. The railroad tracks run generally north-south. Officer Brewer had information that Susan had been engaging in perverted practice activities. Anticipating the site to which the two might be going, he drove his marked police car to a furniture store east of, and in the vicinity of, a small wooded area which lies east of the railroad tracks. Officer Brewer proceeded on foot down an incline and took a position approximately 25 feet from a clearing in the wooded area. This clearing, which was four to five feet wide, had pieces of clothing scattered about on the ground. The wooded area was half-moon shaped. Its flat edge ran along the side of the railroad tracks for 75 to 100 feet. There were approximately 40 trees in the wooded area. It was overgrown with sticker bushes of about waist height. A number of paths ran through the wooded area to the clearing, including a path which ran from the railroad tracks. The clearing was approximately 10 to 15 feet from the railroad tracks and at an elevation approximately four feet higher than the tracks. Officer Brewer arrived at the area in advance of Neville and Susan. He observed them leave the railroad tracks, walk into the wooded area and lie down on the clothing. The officer moved to a point approximately 15 feet from the subjects and remained in a crouched or kneeling position so as not to be observed. Susan performed fellatio on Neville, after which Officer Brewer arrested both.

Neville was employed by the Rescue Mission in Westminster. While Neville and Susan were in the clearing, two men from the Rescue Mission walked down the railroad tracks to a shopping center and walked back. This route took them within 15 feet of the clearing. The railroad tracks are used by the people at the Mission. By Neville's admission, the tracks are used by a "lot of other people ... too," because "(i)t's close to the shopping center."

Neville was found guilty only on the perverted practices charge. He was fined $10 and costs, and payment of the fine and costs was suspended. We granted certiorari prior to the consideration by the Court of Special Appeals of Neville's appeal.

III

There is no universally recognized and accepted definition of the concept of privacy in the sense in which appellants invoke it. ⁵ We are not here concerned with matters relating to...