Tate v. State

• Decision Date: 15 September 1976
• Docket Number: No. 1138,1138
• Citation: 32 Md.App. 613,363 A.2d 622
• Parties: Ricky Andre TATE, Daniel Cornelius Hall, Appellants, v. STATE of Maryland, Appellee.
• Court: Court of Special Appeals of Maryland

Page 613

32 Md.App. 613

363 A.2d 622

Ricky Andre TATE, Daniel Cornelius Hall, Appellants, v. STATE of Maryland, Appellee.

No. 1138.

Court of Special Appeals of Maryland.

Sept. 15, 1976.

Certiorari Denied Dec. 6, 1976.

George E. Burns, Jr., Asst. Public Defender, with whom were Alan H. Murrell, Public Defender, and Dennis M. Henderson, Asst. Public Defender, on the brief, for appellants.

Gilbert Rosenthal, Asst. Atty. Gen., with whom were Francis B. Burch, Atty. Gen., Arthur A. Marshall, Jr., State's Atty. for Prince George's County, and Charles P. Strong, Jr., Asst. State's Atty. for Prince George's County, on the brief, for appellee.

Argued before MARVIN H. SMITH, IRVING A. LEVINE ^* and PERRY G. BOWEN, Jr., ^** JJ.

LEVINE, Judge.

Appellants, Ricky Andre Tate and Daniel Cornelius Hall, were found guilty of rape, two counts of kidnapping, and unlawful use of a handgun in the commission of a crime of violence after a jury trial in the Circuit Court for Prince George's County (Bowie, J.). Both appeal their convictions. We affirm.

Evidence presented at trial, if believed, supports the following statement of facts. In the late evening of March 1, 1975, Calvin Williams, who was working as a cab driver, drove to an address in Prince George's County pursuant to a call from the company dispatcher. He was at that time in the company of a female friend, Marjorie Todd. Appellants entered the cab at the Prince George's County address and directed Williams to take them to an address in the District of Columbia. Upon reaching their destination, Hall pointed a gun at Williams and said, 'This is a holdup,' whereupon Williams surrendered $30. Tate then took control of the cab, and with Williams in the front seat beside him, and with Hall and Todd in the rear seat, he continued driving on a journey lasting some hours. Several stops were made, and on one of these occasions, in Riverdale in Prince George's County, Williams was ordered out of the cab. During the course of this odyssey, Todd was repeatedly raped by Hall. Finally, after delivering Hall at his residence in the District of Columbia, Tate, now in possession of the gun, took Todd to his mother's house in Prince George's County where, in his own bedroom, he proceeded to rape her. Todd was permitted to depart in the morning.

I

The first issue raised by appellants concerns the jurisdiction of the Maryland court to try them for the kidnappings which they urge occurred in the District of Columbia. Though not raised below, such issues of subject matter jurisdiction may, of course, be raised on appeal. Maryland Rule 1085; Wilson v. State, 21 Md.App. 557, 571, 321 A.2d 549, cert denied, 272 Md. 751 (1974); see Resh v. Resh, 271 Md. 133, 137, 314 A.2d 109 (1974).

The undisputed evidence adduced at trial shows that appellants forcibly aabducted Todd and Williams, if at all, in the District of Columbia, and then transported them to and within the State of Maryland. Appellants argue that because the abduction occurred outside Maryland, the Maryland courts are 'without jurisdiction' to try them for the offense. We do not agree.

At common law, kidnapping is defined as the forcible abduction and carrying away of a man, woman or child from his own country into another. Clark & Marshall, Law of Crimes § 10.23 (7th ed. 1967); 4 W. Blackstone, Commentaries ^*219. It is an aggravated form of false imprisonment, embracing all of the elements of that offense and adding to it an asportation of the victim out of his own country. See Hunt v. State, 12 Md.App. 286, 310, 278 A.2d 637, cert. denied, 263 Md. 715 (1971); Perkins, Criminal Law 176 (2d ed. 1969). The principal source of the aggravation lies in the carrying of the victim beyond the protection of the laws of his country. See 1 R. Anderson, Wharton's Criminal Law and Procedure § 371 (1957).

In Maryland the crime of kidnapping is controlled by statute, and though the crime as statutorily defined is based on the common law offense, several relevant changes have been made. Maryland Code (1957, 1976 Repl.Vol.) Art. 27, § 337 provides:

'Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person . . . with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony . . ..' (emphasis added).

First, it is made clear in § 337 that a forcible carrying away of the victim is not required. Among the common law authorities there was some dispute as to whether a carrying with consent, fraudulently obtained, constituted kidnapping. See Annot., 95 A.L.R.2d 450 (1964). Fraudulent carrying does constitute kidnapping under § 337. See Shrader v. State, 10 Md.App. 94, 99-100, 268 A.2d 257 (1970).

Secondly, the common law requirement that the victim be carried out of his own country (or state) has been modified. Carrying within the state is sufficient to make out the § 337 offense. Midgett v. State, 21l Md. 26, 38, 139 A.2d 209 (1958). And finally, an abduction, a forcible 'carrying away,' is not necessary to kidnapping as defined in § 337. The determinative element is the carrying itself. Compare State v. McGee, 336 Mo. 1082, 83 S.W.2d 98, 110 (1935).

In sum, whatever might be said of the common law offense, it is apparent, in light of the changes wrought by § 337, that the gist of the offense of kidnapping in Maryland is unlawful confinement coupled with transportation of the victim. Cf. Collier v. Vaccaro, 51 F.2d 17, 19 (4th Cir. 1931). The initial assaultive taking of the person and the carrying out of the state required at common law are not part of the § 337 offense. Thus, since the undisputed evidence shows that the victims here were unlawfully confined and carried forcibly within this state, a violation of § 337 based solely on acts committed within the state was established. The circuit court therefore had jurisdiction to try appellants for the offense.

II

During cross-examination, the state's attorney asked Tate, over objection of counsel, if he knew that he could 'also get much less than (life imprisonment) in the discretion of the Court.' Appellants contend that because of this questioning, the jury was impermissibly informed of the discretion of the court in passing sentence.

The Court of Appeals held in Shoemaker v. State, 228 Md. 462, 468-74, 180 A.2d 682 (1962), that it was improper for a prosecutor to make reference to such possibilities as the right of appeal, the possibility of executive clemency or parole, and so forth. The danger recognized in Shoemaker is that such information is irrelevant and tends to suggest 'to the jury that it might in part shift its responsibility for a finding of the defendant's guilt to some other body.' Id., 228 Md. at 469, 180 A.2d at 685. We recognize that such a danger may also exist in informing the jury of the discretion of the trial judge in passing sentence.

Here, however, the discussion of possible sentencing was initiated by one of the defendants. Tate was first asked by counsel in direct examination, and over objection by the state's attorney, whether he knew that the crime of rape carried a penalty of life imprisonment. Thus, the defense opened the door, making what had been irrelevant testimony relevant to an issue then in the case. It was not error for the trial court to permit such cross-examination to rebut what was offered, over objection, on direct examination and counteract the resulting prejudice to the State's case. See Gorsuch v. Rutledge, 70 Md. 272, 276, 17 A. 76 (1889); Milburn v. State, 1 Md. 1, 14 (1851).

III

Appellants also assign a supposed error in the instruction given to the jury by the trial court. No objection was made to the instruction, however, in the court below, and that issue is not, therefore, properly before us on appeal. See Maryland Rule 756(g). Nor can we understand appellants' contention that there was plain error, within the meaning of Rule 756(g), entitling this Court to take cognizance of it when appellants concede that the instruction given was technically correct.

IV

At the trial a wallet identified as belonging to the cab driver, Williams, which had been found by police officers in Tate's bedroom, was admitted into evidence over objection. Appellants argued below, as they do now, that the wallet was obtained by the police as a result of an illegal search and seizure.

The purported authority for the search of the bedroom was the consent of Tate's mother, Dorothy E. Harper, the search being without a warrant. It seems that Officers Seckel, Warner and others went to the Harper house, described to them by Todd. Upon being admitted to the house, the officers asked Harper the whereabouts of her son and received permission to search the house for him. Later, according to Warner, Harper gave him permission to conduct a search of the house for evidence. Harper denied this at trial, but the issue being one of credibility, the trial court was free to reject Harper's version and accept the testimony of the officers; indeed, we do not understand appellants to challenge on appeal the finding that consent for a search was given by Harper.

The thrust of appellants' ¹ argument is that Harper lacked authority to...