author: MacDaniel, J.,

text:
    CEDRIC EUGENE SCOTT and JOSEPH LEROY OWENS v. STATE OF MARYLAND
    [No. 1009,
    September Term, 1980.1

      Decided June 4, 1981.

      The cause was argued before Moore, Lowe and MacDaniel, JJ.

      Michael R. Braudes, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant Owens. Gary Offutt, Assistant Public Defender, with whom was Debra A. Hochman, Assigned Public Defender, on the brief, for appellant Scott.

      Stephen B. Caplis, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General of Maryland, William A. Swisher, State’s Attorney for Baltimore City, and Leslie Stein, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

Appellants Joseph Leroy Owens and Cedric Eugene Scott were indicted for first-degree murder, armed robbery and related offenses and in July, 1979, they were tried jointly by a jury in the Criminal Court of Baltimore. They were convicted of felony-murder and use of a handgun in the commission of a felony or crime of violence. Each appellant was sentenced to concurrent terms of life imprisonment and fifteen years’ imprisonment for felony-murder and the handgun offense, respectively. In this consolidated appeal they raise a host of issues, some jointly, others individually. We preface our consideration of these with a statement of the facts of the case.

On the evening of March 2, 1979, in Baltimore City, as appellants were about to enter the School Street apartment of their friend Joanne Chester, they saw the victim, an off-duty police officer, trying to unlock his car door. The man was very drunk, and looked it, so appellants immediately decided to leave the Chester residence and rob him. What happened next was seen or heard by at least four people.

A neighbor, Cynthia Rhodes, and her friend Johnny Norris entered the Chester residence soon after appellants left; Rhodes saw the victim "leaning on his car” while appellant Owens was "patting him up and down”; appellant Scott was "standing around, looking around.”

As Rhodes and Norris entered the house Ralph Willet, another of Ms. Chester’s guests, was on the second floor, looking out a bedroom window on the scene below. First he saw the victim fumbling with his car keys, trying to unlock the vehicle. Then he saw appellant Owens grab the man, fling him to the ground and kick him. Appellant Scott searched the victim first. Then Owens went through the victim’s pockets; he removed a revolver from the man’s top coat and exclaimed "This is my lucky day!” Owens fired the gun into the air twice. Then Willet saw him aim the revolver at the victim and fire a third and fourth time. Ms. Chester, Cynthia Rhodes and Johnny Norris, inside the house, heard the shots.

Later that evening appellants went to the Exeter Street residence of Ruby Keesler. Ruby’s sister, Eva Pearl, was there and she heard appellant Owens state that "he had killed a cop” in self-defense. She saw him "handing the gun around, trying to sell it.”

Appellants were arrested within twenty-four hours of the commission of the crime. Police detectives also found the gun during a search of the Exeter Street residence. Additionally, each appellant gave the police a signed statement, admitting complicity in the robbery but blaming the other for the murder.

We shall first consider the issues raised by appellant Owens individually, then those raised by appellant Scott and, finally, those issues raised by appellants Owens and Scott jointly.

Owens

I.

Appellant Owens first contends the trial court erred in refusing to permit him to cast doubt upon the identification testimony against him by referring to the complexion of a juror for purposes of comparison. The trial court is vested with discretion to permit or deny the reception of demonstrative evidence, and we find no abuse of that discretion here. See Tripp v. State, 36 Md. App. 459, cert. denied, 281 Md. 745 (1977). In any event, our review of the transcript persuades us that there was sufficient testimony to support appellant’s point without involving one of the jurors.

II.

Appellant Owens contends the trial court improperly admitted hearsay testimony into evidence. He refers to the State’s witness’s testimony that Owens exclaimed, "This is my lucky day!”, and that he expressed concern that "they” (presumably the police) "might have got” his co-defendant following the commission of the crime. In each case the admissions were proper; in any event, the evidence against Owens was overwhelming, and the statements were insignificant by comparison. Dorsey v. State, 276 Md. 638 (1976).

III.

Owens contends that the trial court misinstructed the jury as to the doctrine of felony-murder. The court said:

"(H]owever, there is no criminal liability on the part of a defendant if the killing was a fresh and independent product of the mind of another accomplice outside the scope of or foreign to the common object or purpose for which they combined, that is, robbery.”

Appellant complains that the trial court should have further instructed the jury that even the person who did the shooting could not be convicted of felony-murder if the murder was committed as an act independent of and separate from the underlying felony. There was absolutely no evidence in the case to have warranted such an instruction. All the evidence indicated that the murder was committed during the course of the robbery, either to silence the victim or to allow the robbers to escape, or both. As a matter of fact, and in view of the evidence, we think appellant got more than he was entitled to in the instructions actually given. Furthermore, in other instructions the trial court clearly stated that neither appellant could be convicted unless the jury found, beyond a reasonable doubt, that the killing was committed during the perpetration of the robbery, and this was both correct and sufficient. State v. Garland, 278 Md. 212 (1976).

IV.

Appellant Owens contends that the trial court erred in refusing to propound certain questions on voir dire. The questions were posed in an attempt to establish whether the prospective jurors would apply proper legal principles. It is well-settled that the nature and extent of permissible inquiry on voir dire rests in the sound discretion of the trial court. Twining v. State, 234 Md. 97, 99 (1964). We find no abuse of that discretion here.

Scott

I.

Appellant Scott maintains he was convicted of a crime with which he was not charged. He states that the indictment against him charged that he "with . .. deliberately premeditated malice aforethought and did kill and murder” the victim, and specified, in parentheses, "Art. 27, § 407 and Common Law,” whereas he was found guilty of felony-murder, a violation of Article 27, § 410 of the Maryland Annotated Code. We think the assertion is meritless (Brooks v. State, 2 Md. App. 291 (1967)) but, at any rate, the record reflects that appellant made no motion at trial to dismiss the indictment on this ground, nor did he raise this issue in any other way below. Therefore, the question is not preserved for appeal. Maryland Rule 1085.

II.

Appellant Scott also maintains that the evidence was insufficient to sustain his conviction for felony-murder. We shall answer this contention more fully later in this opinion. We shall simply note here that there was evidence from which the trier of fact could find that both appellants robbed the victim; that the victim was shot and killed during the robbery, and that the murder was done at the behest of both, to facilitate the robbery. This was sufficient to sustain his conviction, Newton v. State, 280 Md. 260 (1977), McDowell v. State, 31 Md. App. 652 (1976), Brooks v. State, 2 Md. App. 291 (1967). And this was so regardless whether Owens or Scott fired the fatal shots. See Jackson v. State, 286 Md. 430 (1979), infra.

Owens and Scott

Appellants Owens and Scott raise the following issues jointly:

I. The trial court abused its discretion in refusing each appellant’s motion to sever.

II. The trial court erred in admitting into evidence the extrajudicial statements of the co-defendants; admission violated appellants’ Sixth Amendment constitutional right to confrontation (citing the so-called Bruton rule).

III. Each appellant’s extrajudicial statement should have been suppressed as it was obtained during a period of reasonable delay in violation of Maryland District Rule 723 a.

IV. The trial court erred in refusing appellants’ motions to dismiss for violation of Maryland Rule 746, as amended, and as interpreted by the Court of Appeals in State v. Hicks, 285 Md. 310 (1979).

I. and II.

As separate but interrelated allegations of error, both appellants contend that the trial court erred in refusing to grant their motion for severance, and in admitting their extrajudicial statements into evidence. Appellants object to the admission of the statements even though they concede that the statements were introduced only as evidence against the declarant, and that the trial court gave an appropriate cautionary instruction to the jury. To reiterate, each appellant maintained that the other committed the murder. Their motions for severance were entered in an effort to avoid the impact of the introduction of both such statements at one trial. In this appeal they assert that the introduction of the statements violated their Sixth Amendment constitutional right to the confrontation of witnesses, as interpreted by the Supreme Court in Bruton v. United States, 391 U.S. 123, 88 S. Ct. 1620, 20 L. Ed. 2d 476 (1968).

The State relies on Parker v. Randolph, 442 U.S. 62, 99 S. Ct. 2132, 60 L. Ed. 2d 713 (1979), as authority for its position that Bruton did not require reversal of a defendant’s conviction when the defendant himself confesses and his confession "interlocks with and supports” the confession of his co-defendant. But the Court’s opinion in Parker is so dissonant that we fail to see how it can be cited as authority for anything. The case was argued before eight justices. Mr. Justice Rehnquist, speaking for a plurality of four justices, held that "admission of interlocking confessions with proper limiting instructions conforms to the requirements of the Sixth and Fourteenth Amendments to the United States Constitution.” The plurality held that Bruton is inapplicable, and that it does not require the reversal of a defendant’s conviction, when the defendant himself confesses and his confession "interlocks with and supports” the confession of his co-defendant. 442 U.S. 72-75, 99 S. Ct. 2139-40, 60 L. Ed. 2d 723-24. In a separate opinion Mr. Justice Blackmun concurred with the plurality’s result, but only because he found the admission of the "interlocking” confessions to be "harmless error.” 442 U.S. 77-81, 99 S. Ct. 2141-43, 60 L. Ed. 2d 726-28. He stated that, rather than find Bruton inapplicable, he would follow the Bruton analysis and then determine whether the error was harmless beyond a reasonable doubt. Finally, Mr. Justice Stevens filed an opinion in dissent, which Justices Brennan and Marshall joined. 442 U.S. 81-91, 99 S. Ct. 2143-49, 60 L. Ed. 2d 728-34. Essentially, he agreed with Mr. Justice Blackmun that the Bruton analysis should be retained, but he found the admissions in the case to have been clearly harmful.

In response to this cacophony Judge Ridgely P. Melvin, Jr., speaking for this Court in Earhart v. State, 48 Md. App. 695 (1981), has stated:

"In any event, until a majority of the Supreme Court makes up its mind in an opinion that affords us a binding precedent to follow, or until the Maryland Court of Appeals holds differently, we shall adopt the approach expressed by Justices Blackmun and Stevens in opposition to the Parker plurality view expressed by Justice Rehnquist. We do not think that the basic assumption of Bruton — that a jury cannot be expected to disregard an extrajudicial statement by a nontestifying codefendant that inculpates the defendant — is any less valid just because the defendant himself has also made an extrajudicial inculpatory statement.
In other words, we hold that the rule of Bruton is not rendered inapplicable to protect the constitutional confrontation right of a defendant who complains of the admission in evidence of an extrajudicial statement of a nontestifying codefendant that inculpates the defendant in a crime for which they are being jointly tried by a jury — simply because the defendant has himself made an inculpatory extrajudicial statement. In such a situation, the admission into evidence of the codefendant’s statement would be constitutional error and warrant reversal unless under all the circumstances it can be said that the error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967).” (48 Md. App. at 706-07.)

Accordingly we hold that admission of both Scott’s and Owens’s confession in this joint trial violated the Bruton rule. Having so ruled we face the question of whether the Bruton error was harmless beyond a reasonable doubt.

As the State points out, the heart of appellants’ argument is that, by blaming each other for the shooting, each had erected a successful defense, if believed, to the felony-murder charge. Appellants are mistaken in this.

The Court of Appeals recently expressed the essence of the felony-murder doctrine in Jackson and Wells v. State, 286 Md. 430 (1979), when it wrote, at 441-42:

"The basic premise is that '[a] person is only criminally liable for what he has caused, that is, there must be a causal relationship between his act and the harm sustained for which he is prosecuted.’ 1 Wharton’s Criminal Law § 68 (Anderson, 1957).
But
[i]t is not essential to the existence of a causal relationship that the ultimate harm which has resulted was foreseen or intended by the actor. It is sufficient that the ultimate harm is one which a reasonable man would foresee as being reasonably related to the acts of the defendant. ... It is not necessary that the defendant personally inflict harm upon the victim. ... To constitute the cause of the harm, it is not necessary that the defendant’s act be the sole reason for the realization of the harm which has been sustained by the victim. The defendant does not cease to be responsible for his otherwise criminal conduct because there were other conditions which contributed to the same result.” |Id.]
Clark and Marshall, A Treatise on the Law of Crimes, § 4.01, p. 209 (7th ed. (1967)), puts it this way: 'An accused is not responsible for the death of another, unless that fatal harm was caused by the defendant’s act or omission, or by the behavior of persons whose actions are attributable or chargeable to the defendant.’
Actual causation may be examined in terms of the sine qua non. R. Perkins, Criminal Law 688 (2d ed. 1969). 'In order that conduct be the actual cause of a particular result it is almost always sufficient that the result would not have happened in the absence of the conduct; or, putting it another way, that "but for” the antecedent conduct the result would not have occurred.’ W. La Fave & A. Scott, Handbook on Criminal Law 249 (1972).”

From this it is clear that appellants’ own statements were sufficient to convict them regardless which of them the jury determined fired the fatal shots. We note, for example, that in Jackson and Wells, supra, neither Jackson nor Wells fired the lethal shots: the victim in that case was the appellants’ hostage, and was accidentally shot and killed by a policeman who was attempting to apprehend the two men. Upon those facts the Court of Appeals reasoned that "but for” the action of Jackson and Wells — in committing the robbery, taking the hostage, resisting arrest and exposing the victim to police gunfire — the victim would not have been killed. Under these circumstances the Court of Appeals determined that the defendants were just as much the cause of the victim’s death as if each had fired the fatal shot. The Court stated: "The causal relationship between acts of Jackson and Wells and the death . . . for which they were prosecuted is clear and direct.” Id. Here, the line of causation, running from the armed robbery to the murder is even more clear and direct. We have no doubt that "but for” Owens’s and Scott’s decision to assault and rob the victim, that the decedent would not have been killed. Nor do we think it was unreasonable that either Owens or Scott, or both, might decide to kill the victim in order to silence the only witness to the crime known to them. Whether the shooting was Owens’s idea and act or whether it was Scott’s, both appellants "set the wheels in motion”; their joint actions culminated in the victim’s death, and both are equally responsible.

The case subjudice is similar to Hodges v. Rose, 570 F.2d 643 (6th Cir. 1978). Hodges and a co-defendant, Lewis, were convicted in a joint trial of murder in perpetration of rape. In separate written statements, which were introduced over objection at trial, both defendants admitted the rape, but each blamed the other for beating the victim and causing her death. Hodges did not testify; on appeal Lewis alleged a violation of his right under the confrontation clause of the Sixth Amendment. The Court applied the Bruton rule, established a violation of Lewis’s Sixth Amendment rights, but then held the error harmless beyond a reasonable doubt. The Court stated, at 570 F.2d 648-49:

"Of course, this evidence does not show which defendant delivered the fatal blows. In their statements, each defendant accuses the other of committing the murder, and Lewis claims to have attempted to dissuade Hodges from beating the woman. Under Tennessee law, however, an aider or abettor in a crime is responsible for the acts of his accomplice in pursuit of the criminal purpose. See Tenn. Code Ann. § 39-109. The jury was instructed by the trial court that 'a killing by one of a party, in the pursuit of an unlawful purpose involving the use of violence in which both are engaged, is the act of both who engaged in the unlawful purpose.’ Based on this instruction, and evidence independent of the improperly admitted statement, we think that the average jury would conclude that Hodges and Lewis were both guilty of the murder regardless of which actually dealt the fatal blows. The error in admitting the incriminating portions of Hodges’ statement as to Lewis was therefore harmless beyond a reasonable doubt.” (Footnotes and citations omitted.)

We find this reasoning persuasive, and in accord with our views in the case sub judice. The appellants’ statements were, for all practical purposes, identical. The mere fact that each had blamed the other for the shooting was absolutely inconsequential, since such accusations, even if believed by the jury, were useless as a defense to felony-murder. Jackson, supra, makes this point quite clear. Consequently, we have no difficulty in holding that the Bruton-type error in this case was harmless beyond a reasonable doubt.

Appellants also argue that Mumford v. State, 19 Md. App. 640 (1974), is controlling, and that it mandates reversal of their convictions. Mumford does no such thing: it is completely inapposite here. In that case the appellant (a 15 year old female) together with four youthful male companions "entered into an evening of burglary, robbery, larceny, assault and terror in the Bishopville, Maryland area.” Id. at 641. The third and final victim arrived home and entered her garage while appellant et alios were burglarizing the home. Two of Miss Mumford’s cohorts raped and murdered the victim. At appellant’s trial the court refused Miss Mumford’s requested instruction to the jury that "[I]f you find that the defendant [Mumford] could not have expected her companions to commit a rape, . . . then you must find the Defendant not guilty |of murder].” In Mumford, this Court found the refusal to grant this instruction to be error. We stated, at 643-44:

"Consequently, a killing, even if unintentional, by one, in furtherance of or pursuant to the common object for which they combine, extends criminal liability for murder in the first degree to each and every accomplice. The application of this doctrine, however, is circumscribed by 'causation’ requirements which must be satisfied before the felony-murder rule may be applied:
'There is no criminal liability on the part of the others when the homicide was a fresh and independent product of the mind of one of the confederates, outside of, or foreign to, the common design.’ 1 Wharton, Criminal Law and Procedure, § 252, at 547 (Anderson ed. 1957).
In sum, there must be direct causal connection between the homicide and the felony. Something more than mere coincidence in time and place between the two must be shown; otherwise, the felony-murder rule will not be applicable.”

The State argued that the evidence was insufficient to support the requested instruction, but we disagreed, noting that the medical examiner’s report and other evidence was sufficient to permit the jury to determine that the victim’s death resulted from the rape. Therefore, we reasoned, "had the trial judge’s instructions as to the felony-murder rule included a requirement of causal nexus between the underlying felony and the resultant homicide, the jury could have chosen not to believe that death occurred pursuant to the burglary, but rather from rape, fresh and independent of the common design.” 19 Md. App. at 644. Here the instruction was given.

But in the case at bar the line of causation, running from the robbery to the murder, was quite clear and direct, and unbroken by any act "fresh and independent of the common design.” Indeed, there was no evidence whatever to suggest a lack of causal connection between the homicide and the underlying felony. As we have noted, the evidence was quite to the contrary. Both appellants admitted participation in the robbery; and there was evidence that the murder was committed to facilitate that robbery. Mumford, supra, is therefore factually distinguishable from this case. Liability for murder here extends to both appellants, no matter which one fired the fatal shots.

This brings us to appellants’ challenge to the joinder of their cases for trial. Relying upon Bruton v. United States, supra, appellants predicated their motions to sever upon allegations of infringement of their Sixth Amendment constitutional right of confrontation, attendant upon the introduction of their statements at trial. We have held the Bruton rule applicable here, but we have found the Bruton error harmless beyond a reasonable doubt. It follows therefore that any error in not granting the severance was harmless. Earhart v. State, supra.

III.

Appellants also contend their statements should have been excluded as a sanction for violation of Maryland District Rule 723 as construed by the Court of Appeals in Johnson v. State, 282 Md. 314 (1978). Subsection a of the rule provides:

"A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than 24 hours after arrest. A charging document shall be filed promptly after arrest if not already filed.”

And in Johnson, supra, the Court of Appeals stated, at 328-29:

"We ... hold that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief. A statement is automatically excludible if, at the time it was obtained from the defendant, he had not been produced before a commissioner for his initial appearance within the earlier of 24 hours after arrest or the first session of court following arrest, irrespective of the reason for the delay. Where, however, the delay in presentment falls within the outer limits established by M.D.R. 723 a, it is incumbent upon the trial court to determine whether the State has met its burden of showing that the delay was necessary under the circumstances of the particular case. Examples of necessary delay might include those required: ... 4) to obtain information likely to be a significant aid in averting harm to persons or loss to property of substantial value; 5) to obtain relevant nontestimonial information likely to be significant in discovering the identity or location of other persons who may have been associated with the arrestee in the commission of the offense for which he was apprehended, or in preventing the loss, alteration or destruction of evidence relating to such crime.. ..
We note also that a truly spontaneous 'threshhold’ [sic] confession or statement uttered at the time of arrest or shortly thereafter would not be excludible on the grounds that police subsequently failed to act diligently in complying with M.D.R. 723 a. In such cases there is manifestly no connection between the delay and the statement, and since police misconduct does not in any way contribute to the making of the confession, the exclusionary rule would logically not apply.” (Citations omitted.)

The record reflects that appellants were arrested and questioned on the evening of March 3, 1980, but that they were not taken before a commissioner until the next morning. Appellants argue that under these circumstances the rule and Johnson, supra, require exclusion of their statements. We disagree. In the first place, appellants were taken before a commissioner within twenty-four hours; as a matter of fact, they were taken before a commissioner well within twenty-four hours after arrest. In the second place, and according to the uncontradicted evidence of the investigating officers, appellants were questioned in order to find the murder weapon; that is, to preserve physical evidence and to retrieve a dangerous and deadly weapon before it could be used to inflict further injury or death. And, in the third place, there was also testimony from the investigating officers that both appellants were "eager to confess” and blame each other for the shooting; the officers testified that appellants began confessing to the crimes before they reached the police station. Accordingly, we think the circumstances of this case place it within the exceptions mentioned by the Court in Johnson, supra, and we hold that appellants’ confessions were properly admitted into evidence.

IV.

Finally, appellants contend the trial court erred in refusing to grant their motions to dismiss based on a violation of Maryland Rule 746, as interpreted by the Court of Appeals in State v. Hicks, 285 Md. 310 (1979). Section a of the rule currently provides:

"Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723, a trial date shall be set which shall be not later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723.”

And in Hicks, supra, the Court of Appeals held that the rule is mandatory, and that dismissal of the charges is the proper remedy for its violation, subject to certain exceptions. See Hicks, supra, at 335-36.

Appellants maintain that the 180-day period must date from their initial appearance in the district court, pursuant to Maryland District Rule 723. It does not; Maryland Rule 746 makes specific reference only to Maryland Rule 723, which applies to circuit court, not district court proceedings.

Judgments affirmed.

Appellants to pay the costs.

      . For all intents and purposes, this is the same test given by the Court of Appeals in Jackson, supra.

      . Appellants also cite Day v. State, 196 Md. 384 (1950), as authority for the proposition that joinder was improper here. In that case the two defendants robbed a trolley car and the conductor was killed. When the two were apprehended, each confessed to the robbery, but blamed the other for the killing. They were tried jointly and on appeal the Court of Appeals held the joinder improper. But, as the State points out, Day is distinguishable in that the Court’s holding was based in large part upon the fact that the jury might exercise some discretion in sentencing either or both the defendants to death. See Day, supra, at 391-92. The jury played no such role in this case.

      . S.B. 862 was enacted in Laws 1981. It modified Johnson by providing that a defendant’s confession may not be excluded solely because of a failure to comply with the rule of Court. The new statute is effective July 1, 1981.

      . Even if appellants were correct in this it would avail them nothing. The Court of Appeals has stated Hicks’s ruling is purely prospective, and applicable "only to those pending cases where, as of our mandate in this case, there have been no appearances of counsel or first appearance of defendants pursuant to Rule 723,” 285 Md. at 338. If appellants are correct, and their March 4, 1979, appearance is a "first appearance” pursuant to Hicks, it precedes the Hicks decision by almost four months.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    ROLAND I. HANNA et ux. v. JAMES M. BAUGUESS et al.
    [No. 1080,
    September Term, 1980.]

      Decided June 4, 1981.

      The cause was argued before Moore, Melvin and Mason, JJ.

      Philip V. Tamhurello, for appellants.

      Harry S. Shapiro, with whom was Marc H. Baer, on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

The appellants-lessees of real property improved by a furniture store sought specific performance by the appellee-lessor of an option in the lease which gave the lessees the right to purchase at the expiration of the fifth year. The option provided for a purchase price "arrived at by three independent realty appraisors [sic].” Finding uncertainty with respect to the determination of the price and the method of selection of the appraisers, the chancellor denied specific performance. We hold that specific performance should have been granted and shall reverse. We shall also vacate a judgment in the amount of $28,800 which was awarded to the appellee-lessor for unpaid rent subsequent to the date of the lessees’ exercise of the option.

I

On April 6,1973, James M. Bauguess, the appellee-lessor, and his former wife, Wanda, entered into a lease agreement with Roland I. Hanna, and his wife, Gail, the appellants-lessees, for the lease of approximately two and one-half acres of land in Jarrettsville, Harford County, Maryland which was improved by a furniture store described as an A-frame block building approximately 120 feet by 60 feet in size. At the time of the execution of the lease, the lessor and his wife were conducting a retail furniture business on the premises.

The lease was a single page in length, and was prepared by the manager of a local bank. It contained nine numbered paragraphs with few detailed provisions. The term was five years, renewable for another five years. The monthly rental was $1150 for the first year and $1200 thereafter. Paragraph 3 contained the disputed option clause, as follows:

"3. At the expiration of the fifth year the Lessee may elect to continue payment of $1200.00 rental or exercise his option to purchase above stated property at price arrived at by three independent Realty appraisors |sic|.”

The Hannas took exclusive possession of the premises under the lease on June 1, 1973, and began operating the furniture store. It was stipulated below that the rent was paid by the Liannas until the end of May of 1978 (the end of the five-year lease period) and nothing further has been paid since that time. The appellants, however, remain in possession.

Shortly after the Hannas took possession, and presumably in anticipation of purchasing the property pursuant to the option clause, they began making extensive improvements to both the furniture store and the land.' Mr. Bauguess testified that consent was given by him for the Hannas to black-top the store’s parking lot and nothing more. The Hannas testified, in effect, that it was "understood” that any improvements which increased the value of the property were permissible and that Bauguess made periodic visits to the property at which times he observed and approved the various changes taking place. All of the improvements were completed by approximately September, 1976.

The first mention of the Hannas’ election to purchase the property occurred some time in 1976 in a conversation between Mr. Hanna and Mr. Bauguess. The substance of that conversation is disputed but, in any event, counsel for the Hannas notified Mr. Bauguess by certified letter dated February 13, 1978 that the Hannas were exercising their option to purchase the property pursuant to paragraph 3 of the lease. It is undisputed that the appellee received the letter. Prior to the Hannas’ election to purchase, Mr. Bauguess had filed lawsuits against them in November, 1976 and July, 1977. The first was an action for waste; the second was for ejectment.

As for their financial ability to purchase the property, the Hannas had contacted a local bank, and its president, James Magness, as early as February 1978, to discuss a mortgage loan. Magness testified that although no formal application was made to the bank, and no loan commitment was given, he was very familiar with the property, the Hannas, and their financial affairs because they had several accounts with the bank, and that financing would be available to the Hannas for the purchase of the property.

Subsequent to the Hannas’ election to purchase, Bauguess left Maryland and could not be located. He testified that he was away from approximately April, 1978 to November, 1979. He did not respond to the letter of February 13, 1978, nor did he speak with the Hannas about it. No appraiser was ever appointed by Bauguess. While Bauguess was away, the Hannas, on May 3, 1978, filed the instant suit for specific performance and other relief. They also had the property appraised. The appraiser’s report, dated March 15, 1979, stated that the fair market value on February 16, 1978 was $200,000, including the improvements made by the Hannas which he valued at $25,000.

In his answer to the amended bill of complaint, Bauguess admitted that a lease was executed but said that "said Lease was invalid and that it had been altered and modified without the authorization or consent of the Defendant.” He denied that there was an option to purchase "since the Lease which created the said option was invalid.” Bauguess also filed a cross bill of complaint seeking a monetary decree for unpaid rent, damages for waste, and an injunction to prevent further acts of waste.

In a Memorandum Opinion, dated May 27,1980, the court dismissed the Hannas’ amended bill of complaint and Bauguess’ waste claim in the cross bill. With respect to the Hannas’ suit for specific performance, the court concluded:

"On the basis of. .. uncertainty in the method of selection of appraisers and the further uncertainty of the determination of the purchase price, this Court finds that the option does not establish the purchase price with sufficient clarity to permit a conclusion that the contract is definite in all its terms.”

The court also entered a judgment for Bauguess in the amount of $28,800, representing accrued rent from June 1, 1978 to May 31, 1980. For reasons stated infra, we reverse the court’s dismissal of the lessees’ bill of complaint for specific performance. It necessarily follows that the $28,800 judgment for accrued rent granted in favor of the appellee is vacated.

II

The primary issue for our consideration is whether the option clause contained in paragraph 3 of the lease is sufficiently certain to permit a court of equity to grant specific performance. For convenient reference, we repeat its provisions:

"3. At the expiration of the fifth year the Lessee may elect to continue payment of $1200.00 rental or exercise his option to purchase above stated property at price arrived at by three independent Realty appraisors |sicl.” (Emphasis added.).

We begin our analysis with several well-established principles of law dealing with the remedy of specific performance. In Boyd v. Mercantile-Safe Deposit and Trust Co., 28 Md. App. 18, 344 A.2d 148 (1975), Judge Davidson, speaking for this Court, said:

"The principles applicable to specific performance of contracts relating to the ownership and use of land have been well established in Maryland. The questions of whether specific performance of a contract relating to the ownership and use of land shall be decreed and what shall be the terms of the decree rest within the sound discretion of the equity court. The exercise of the court’s discretion, however, must not be arbitrary and is controlled by established principles of equity. Where a contract for the sale of real estate is fair, reasonable and certain in all of the terms, it is as much the duty of a court of equity to decree specific performance as it is for a court of law to award damages for breach of contract.” (Emphasis added.) (Footnote omitted.)

Id. at 22, 344 A.2d at 152.

With respect to certainty of terms, the cases have held that contracts must be definite and free from all ambiguity. In Dixon v. Dixon, 92 Md. 432, 438, 48 A. 152, 153 (1901), the Court observed that the discretion afforded the courts in granting relief by specific performance "is one which is regulated by fixed and established rules. * * * The contract must be definite and certain in its terms and must be free not only from all ambiguity, but likewise free from all shade or color of ambiguity. * * * These terms include . .. the price to be paid. ...” Accord, Applestein v. Royal Realty Corp., 180 Md. 274, 23 A.2d 684 (1941); Anshe Sephard Congregation v. Weisblatt, 170 Md. 390, 185 A. 107 (1936).

Notwithstanding the rather unequivocal pronouncements in the earlier cases, the courts in Maryland and elsewhere have come to interpret this language in a fashion which has permitted specific performance despite the presence of terms which might appear less than "certain.” Thus, although price is an essential element in a contract for the conveyance of land, it has been held in this State that specific performance may be granted even though the exact price is not stated, provided the contract defines a method which renders the price readily ascertainable. In Foard v. Snider, 205 Md. 435, 109 A.2d 101 (1954). the Court of Appeals quoted approvingly the following language from 1 A. Corbin, Contracts § 98 (1963):

"An agreement is not unenforceable for lack of definiteness of price or amount if the parties specify a practicable method by which the amount can be determined by the court without any new expression by the parties themselves.” (Emphasis added.)

Id. at 445, 109 A.2d at 105. Judge Hammond, later Chief Judge, also quoted in Foard the language of the Restatement of Contracts § 370, which appears in Trotter v. Lewis, 185 Md. 528, 45 A.2d 329 (1946), a case involving, in part, the issue of definiteness as to the terms of an option:

" 'Expressions that at first appear incomplete or uncertain are often readily made clear and plain by the aid of common usage and reasonable implications of fact. Apparent difficulties of enforcement due to uncertainty of expression may disappear in the light of courageous common sense.’ ”

See also Hagan v. Dundore, 185 Md. 86, 43 A.2d 181 (1945).

Accordingly, where a contract specifies that the price is to be measured by the "fair market value,” "reasonable value” or "current market value,” of the services or the property involved, courts have generally held that the price is sufficiently certain in order to have an enforceable obligation. Miller v. Bloomberg, 26 Ill. App. 3d 18, 324 N.E.2d 207, 208 (1975) (rehearing denied); Portnoy v. Brown, 430 Pa. 401, 243 A.2d 444, 447 (1968); Williston, Contracts, Vol. 1, § 41 (3rd ed. 1957); Annot., 2 A.L.R.3d 701 (1965). In Hagan v. Dundore, supra, this general trend was recognized in Maryland in the context of a suit for the construction of a partnership agreement and for specific performance where the plaintiff was given an option to purchase defendant’s interest in the partnership "for a sum not exceeding the book value of the share of the [appellant].” On this point, the Court of Appeals held:

"As to the price 'for a sum not exceeding the book value of the share of the said James A. Hagan in said partnership. In the event the said Harry A. Dundore exercises his said option to purchase a part or parts of the interest of James A. Hagan, the sum or sums so paid by him to said James A. Hagan * * *’, it is plain that this expression means that when the option is exercised if James A. Hagan will not accept less than the book value of his interest he must accept the full book value of that interest. Similar expressions have been held certain enough to support specific performance in a number of cases.” (Citations omitted.)

Id. at 96, 43 A.2d at 185. See Foard v. Snider, supra.

In at least one relevant out-of-state case involving the interpretation of the term "current market value,” the Court’s grant of specific performance was based, in part, on a holding that "the law recognizes in the area of enforceability of contracts the maxim, 'id certum est quod certum reddi potest’ (that is certain which can be made certain).” Portnoy v. Brown, supra, 243 A.2d at 447; and in Shayeb v. Holland, 321 Mass. 429, 73 N.E.2d 731 (1947), the court granted specific performance where an option clause to purchase real estate contained no reference whatsoever to the price. The Supreme Judicial Court of Massachusetts there stated:

"It is true that the option in question does not in terms provide for the determination of the price by any subsequent agreement. We think that the offer to sell in the present case should be reasonably understood to be an offer to sell for a fair and reasonable price. Otherwise, the offer would have no practicable value but would be a mere illusion or perhaps a snare to the unwary. In somewhat similar situations, the provisions in leases for a renewal of the term or for a sale of the demised premises have been held to imply a fair rental or price.”

73 N.E.2d at 733.

In the instant case, the option clause does not specify a sale price, nor does it provide that the property be measured by "current market value,” "reasonable value” or other similar terms. In our view, however, there is no just reason for an approach to the issue in this case different from that manifested in the cases previously cited. Here, the price "arrived at by three independent realty appraisers” would perforce be the fair market value of the property at the time the option was to be exercised. See generally, Annot., 167 A.L.R. 727 (1947); 71 Am. Jur. 2d Specific Performance § 40 (1973); 5A A. Corbin, Contracts § 1174 (1964). But see Griffith v. Frederick County Bank, 6 G & J 424 (1834); Milnes v. Gery, 14 Ves Jr 400, 33 Eng Reprint 574, 6 Eng Rul Cas 684 (1807). The option clause itself, therefore, provided a practical method by which the price could be determined; and it should not be overlooked that the understanding of the parties, according to the uncontradicted testimony of Mrs. Hanna, was that the average of the three appraisals would be determinative.

We do not think that the absence of a specified method by which the appraisers were to be selected is critical. In this respect, the suggestion made by the Hannas’ counsel in his letter dated February 13,1978, that each of the parties select an appraiser, and the two thus chosen select a third, was in accordance with time-honored practice. On remand, the court is free to prescribe the method by which the appraisers are to be selected — either by the parties themselves or by the court, in its own discretion.

Ill

It follows that the judgment in the amount of $28,800 against the appellants for rent due from June 1, 1978 through May 31, 1980 should be stricken. The relationship of the parties, upon the termination of the lease on May 31, 1978 and the exercise of the option, became that of vendor-vendee and rent was no longer due. Young v. Cities Service Oil Co., 33 Md. App. 315, 319-20, 364 A.2d 603, 606. (1976).

Decree dismissing appellants’ amended bill of complaint reversed; judgment for appellee in the amount of $28,800 reversed; case remanded for further proceedings consistent with this opinion; costs to be paid by appellee.

      . Appellee’s former wife transferred all her interest in the subject property to the appellee by quit-claim deed in 1975 and is not a party to this appeal.

      . Mr. Bauguess had constructed the store in compliance with a covenant in the deed from his grantor.

      . The Hannas, through the work of private contractors, insulated the walls and ceiling, panelled the walls, installed a lighting system, advertising signs, an interior partition wall, six wall air-conditioners, a carpet, and electrical receptacles. They also tiled the bathroom, constructed a new loading dock, black-topped the parking lot, and extended the retail area of the store by enclosing the front porch With respect to the improvements to the land, they leveled and seeded the front and back yard, and placed a baseball diamond on one end of the property. Several large trees were cut down.

      . The full text of the letter was as follows:
      "This is to advise that Mr. and Mrs. Roland I. Hanna are hereby exercising their option to purchase the above described property as provided in said lease and in particular paragraph three thereof.
      In as much as the lease does not provide for a purchase price, but does state that the purchase price will be determined by three independent real estate appraisers, I suggest that you select an appraiser, that the Hanna’s select an appraiser and that the two appraisers select a third appraiser for the purpose of arriving at a fair market value as of this date.
      If you have any further questions regarding this matter, please do not hesitate to contact me.
      Yours truly,

        Is/ Philip V. Tamburello.”

      . On November 23,1976, Bauguess filed an action for waste against the Hannas in the Circuit Court for Harford County (law case No. 9932). The court (Higinbothom, J.) granted the Hannas’ demurrer with leave to the plaintiff to amend. The waste case was stayed, by Order dated January 23, 1980, pending final determination of the instant specific performance suit.
      The action of ejectment was filed July 11, 1977 in the District Court for Harford County and subsequently transferred to the Circuit Court. Bauguess sought $2,400.00 for alleged arrearages representing two months unpaid rent. The docket entry states that the Hannas’ Motion for Summary Judgment was granted by Order filed on January 23,1980, and that "Motion to Strike Amended Declaration granted without prejudice, to the right of pltf. to file new Amended Declaration.” This confused state of the pleadings is not before us. We do not consider it.

      . There is present here no issue concerning financing or the terms of the financing. Cf. Imas Gruner & Associates, Ltd. v. Stringer, 48 Md. App. 364, 427 A.2d 1038 (1981).


author: Gilbert, C. J.,

text:
    JOSEPH F. LENTZ, JR. et al. v. PHILIP C. DYPSKY et al.
    [No. 1105,
    September Term, 1980.]

      Decided June 5, 1981.

      The cause was argued before Gilbert, C. J., and Thompson and Wilner, JJ.

      William D. Hooper, Jr., with whom were Donald C. Fry, and Lentz & Hooper, P.A. on the brief, for appellants.

      Bruce C. Bereano, with whom were William H. Adkins, III and Henry, Hairston & Price on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

We know not what caused the bond of matrimony between Philip C. Dypsky and Evelyn C. Dypsky to be set asunder, but we do know that the results of a partition proceeding reunited them, at least for the limited purpose of challenging a report of sale made to the Circuit Court for Worcester County by two trustees. Judge Edward O. Thomas agreed with the Dypskys that the report of sale should be set aside, and the chancellor passed an order to that end.

THE ISSUE —

Aggrieved at the circuit court’s action, Joseph F. Lentz, Jr. and Victor Yanek, the purchasers of the properties, have appealed. Appellants contend that:

"The trial court erred when it set aside the judicial sale of land merely because of the relatively low price together with the parties’ frustration when the evidence adduced at the trial indicated that the inadequacy of price, if any, did not shock the conscious [sic] of the court and did not result because of fraud, surprise, mistake or unfairness in the sale or because of misconduct, fraud or unfairness on the part of the trustee.”

THE FACTS —

It is apparent from the record that this litigation stems from a 1977 decree of divorce a vinculo matrimonii. Approximately 16 months after the divorce, Mrs. Dypsky filed a bill of complaint in the Worcester County Circuit Court in which she asserted that during her coverture she and Mr. Dypsky acquired certain real property located in that County. Mrs. Dypsky prayed that "a Decree ... be passed appointing Trustees (Counsel for both parties) ... to sell the aforementioned real estate, pay all existing liens [and] divide the proceeds ...” after repaying an obligation allegedly due to Mrs. Dypsky.

Mr. Dypsky responded by way of an answer in March 1979. About a month later, the court signed a "Consent to Decree of Sale and Appointment of Trustees.” The circuit court ordered, on April 18, 1979, that 1) "the ... properties be sold”; 2) two designated trustees "effectuate the sale”; 3) the trustees post a bond in the penalty amount of $25,000; and 4) the trustees hold the proceeds of the sale "pending a hearing on [Mrs. Dypsky’s] claim for contributions in the amount of $8,778.22.”

The Dypskys testified before Judge Thomas that each had made clear to his or her attorney the amount the property should bring at the sale. Mr. Dypsky said that he agreed to sell a motel property for $176,000, a Coastal Highway lot for $45,000, and lots in "Winchester” development for $30,000. The attorney for Mrs. Dypsky testified that his client had told him she would accept $168,000 to $175,000 for the motel, $30,000 for the Coastal Highway property, and $15,000 for the Winchester lots.

The advertisements concerning the sale carried the legend in bold type that:

"THE UNDERSIGNED [TRUSTEES] RESERVE THE UNQUALIFIED RIGHT TO WITHDRAW THE PREMISES AT ANY TIME PRIOR TO OR DURING THE SALE.”

While the advertisements were appearing in the various publications, Mr. Dypsky’s lawyer, who was also one of the trustees, "became very ill.” Another attorney from the same law firm then commenced to represent Mr. Dypsky. That lawyer, Mr. Drake, said that Mr. Dypsky "was told in July and August. .. there were not going to be reservation sales.” The attorney did not remember whether Mr. Dypsky responded that "he wanted reservations in the sale.” Because the lawyer foresaw problems arising from the fact that "Mr. and Mrs. Dypsky . .. would probably not agree on anything ... [including] the going price for a sale ... and . .. a trustee could find himself in a position where one party wanted the thing sold and the other one didn’t. ..,” he wrote to Judge Prettyman. In the letter it was asked:

"1. Do the Trustees have authority to remove the property from sale once the bidding .. . has begun?

2. Can the Trustees, in concert and with full agreement of the respective parties involved, agree to remove a property from sale once the bidding has begun? ...”

The judge responded in pertinent part by return mail:

"[I]t is my opinion that the Trustees have absolutely no authority to remove the property from sale once the bidding has begun.

. .. [I]t is my opinion that the Trustees, even in concert with, and in view of the full agreement of, the respective parties, have absolutely no authority to remove the property from sale once the bidding has begun.”

Mr. Dypsky went to the sale, and before it commenced, he announced that he objected to the sale’s being made without reservation. He said, "It’s been advertised that at any time the Trustees can stop the sale, according to the ads.... As part owner of this property, I’m going to contest this.” Substantially the same statement was made by Mr. Dypsky before each property was "knocked-down.”

The Trustees filed their "Report of Sale” in September 1979, and Mr. Dypsky promptly excepted.

Judge Thomas noted that Judge Prettyman’s "opinion,.. . when ultimately relayed to the . .. [Dypskys], somehow attained the stature of a court order.” Patently, it was not. It was no more than Judge Prettyman’s "opinion” which, Judge Thomas observed, should have operated as a triggering device to cause the attorneys for the Dypskys to seek an amendment to the partition decree.

The only expert testimony at the trial suggested that the prices brought at the sale were ranged from approximately 45% to 60% of the appraised value. Judge Thomas opined that:

"Whether ... this is low enough to 'shock the conscience of the Court,’ can not be considered alone. Certainly, the relatively low price together with the frustration of the parties ... [in the sale’s being made without reservation! because they had no control over the prices for which the property would be sold would be sufficient, in the Court’s mind, to sustain the exceptions.”

THE LAW —

The authority of Maryland courts of equity to exercise jurisdiction over partition proceedings stems from 31 Plenry VIII, ch. 1 (1590). That parliamentary statute remained an integral part of the Common Law of Maryland following the War of Independence waged between the colonies and the British crown. Maryland Declaration of Rights, Article 5. Subsequently, the General Assembly enacted a partition statute by Laws 1785, ch. 72, § 12. The statute has been amended from time to time. The current version is found in Md. Real Property Code Ann. § 14-107.

Real Property Art. § 14-107 (a) provides in pertinent part:

"Decree ofpartition. — A circuit court may decree a partition of any property, either legal or equitable, on the bill or petition if any . . . tenant in common . . . whether claiming by descent or purchase. If it appears that the property cannot be divided without loss or injury to the parties interested, the court may decree its sale and divide the money resulting from the sale among the parties according to their respective rights. . . .”

As we read the statute, the purpose of the court’s ordering a sale is to minimize "loss or injury to the parties.” Thus, a public sale, without reservation of the right to withdraw the property from the sale, either before, during, or after the sale, but before ratification, defeats the purpose of the statute. The injury prevented by the exercise of the right to order a sale could be inflicted by a public sale without reservation as implied by the Court of Appeals in Gray v. Veirs, 33 Md. 18 (1870), where an attack on a trustee’s refusal to accept a bid was rejected. The Court said:

"The trustee is not bound to accept every bid. He is necessarily clothed with a prudent and sound discretion, and the court will always sustain him in refusing bids which would manifestly defeat and frustrate the very object and purpose of a sale.” Id. at 22.

See also Whitely v. Whitely, 117 Md. 538, 84 A. 68 (1912); Gibbs v. Cunningham, 1 Md. Ch. 44 (1847).

As a general rule, a trustee’s sale is not normally set aside because of inadequacy of the sales price. An exception to that rule occurs when the price is so grossly insufficient as to shock the conscience of the Court. Suburban Garden Farm Homes Corp. v. Duckett, 179 Md. 648, 22 A.2d 467 (1941); Johnson v. Dorsey, 7 Gill 269 (1848); Garland v. Hill, 28 Md. App. 622, 346 A.2d 711 (1975), aff’d, 277 Md. 710, 357 A.2d 374 (1976).

There are, however, other reasons for voiding a sale besides gross inadequacy of price. Misconduct, fraud, or unfairness on the part of the trustees may also result in the sale’s being invalidated. Vollum v. Beall, 117 Md. 617, 620, 83 A. 1095, 1096 (1912).

The instant case contains no evidence that would lead to a rational conclusion of fraud or misconduct by the trustees. Nevertheless, their mistaken belief that they lacked the necessary powers to offer the property for sale, subject to the reservation of the right to reject any and all bids amounts, in this case, to unfairness to the Dypskys. The trustees knew the prices that were acceptable to the Dypskys, yet they sold the properties for an aggregate sum far below the acceptable minimum.

It may be argued that Mr. Dypsky’s conduct at the sales, together with his vocalized threat to sue so as to vitiate the matter, discouraged prospective bidders. Even if that argument be true, the fact remains that the trustees did not "offer the property in such a manner as to bring its fair market value, and to exercise the same judgment and prudence that a careful owner would exercise in the sale of his own property.” Hopper v. Hopper, 79 Md. 400, 402, 29 A. 611, 612 (1894).

Recently, in McCartney v. Frost, 282 Md. 631, 638, 386 A.2d 784, 788 (1978), rev’g, 37 Md. App. 495, 378 A.2d 170 (1977), Judge Smith, for the Court of Appeals, quoted with approval the case of Home Owners’ Loan Corp. v. Braxtan, 220 Ind. 587, 592, 44 N.E.2d 989, 991 (1942). There the Indiana Court said: "The purpose of the sale is not to afford some stranger an opportunity to make off with the property ... to his own great advantage and to the great disadvantage of either the judgment defendant or the judgment creditor.”

Although the Court of Appeals, in McCartney, was concerned with a sale by a sheriff pursuant to a writ of fieri facias, while we are confronted by a challenged trustees’ sale, the rationale remains the same.

The powers conferred upon the trustees to sell are not without bounds. A court order authorizing a sale by a trustee is not a license to dispose of the property without regard to its true value so as to allow a stranger to reap a harvest to the detriment of the owners. This does not mean, however, that the owners reserve the right to control the sale through mechanization of the trustees because trustees are not mere puppets of the owners. Rather, they are officers of the court, and as such, are under a duty to the court and to the owner to obtain the best possible price, under the circumstances, and, if necessary, to withdraw the property from the sale.

A partition sale is not the same as a foreclosure or sheriffs sale. The conduct of the trustees or the sheriff, in the latter, may differ substantially from a partition sale, particularly when, as here, the owners desire the sale and have expressed to the trustees what they believe to be a proper valuation of the property and have insisted that the property be offered for sale, subject to the reservation of the right to reject any and all bids.

The erroneous belief by the trustees in the instant case that the property could not be offered at an auction sale subject to the reservation of rights, when coupled with bids at sale of approximately fifty percent of value of properties, constitutes sufficient cause for the chancellor to nullify the sale. Thus, we hold that Judge Thomas properly revoked the trustees’ sale to the appellants.

Order affirmed.

Costs to be paid by appellants.

      . The parties were divorced in 1977 by a decree of the Circuit Court for Worcester County.

      . Originally there were three purchasers, but we were told at oral argument that one assigned her interest to Mr. Lentz.

      . Inasmuch as the record makes clear that following the 1977 divorce, the parties became tenants in common as to certain properties, we infer that the decree passed in 1977 was for a divorce a vinculo matrimonii.

      . The trustees reported that the properties were advertised in the Salisbury Daily Times, Eastern Shore Times, Philadelphia Inquirer, Washington Post, Baltimore Sun, Baltimore News American, Wilmington News Journal, and the Richmond Times Dispatch.

      . There were three bidders on the Coastal Highway property. The high bid was $16,750. The Winchester lots "located behind the Nichi-Bei-Kai” off U.S. Route 50, brought $6,100. There were "12 to 15 people in attendance.” No record was apparently made as to the number of bids. The high bid for the motel was $76,000. There were two bidders and two bids, one for $75,000 and the other for $76,000.

      . See 1831 Md. Laws, ch. 311, §§ 1, 9; Md. Ann. Code art. 16, § 99 (1860); Md. Ann. Code art. 21, § 14-107 (1972 Supp.); 1974 Md. Laws, ch. 12, § 2.

      . To assure that the statute of 31 Henry VIII, ch. 1 was no longer viable in this State, the Legislature, by Md. Real Property Code Ann. $ 14-115. expressly declared that British statute to be "no longer in force and effect in the State.”


author: Liss, J.,

text:
    GARY DONALDS v. STATE OF MARYLAND
    [No. 1236,
    September Term, 1980.]

      Decided June 5, 1981.

    The cause was submitted on briefs to Liss, Couch and Weant, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Gary W. Christopher, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, F. Ford Loker, Assistant Attorney General, and John R. Salvatore, State’s Attorney for Washington County, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On February 7, 1978, Gary Donalds, the appellant, was convicted in a trial before the court in the Circuit Court for Washington County (Corderman, J.), of robbery and assault. At the conclusion of the trial he was committed to the custody of the Division of Correction for ten years for the robbery with a concurrent commitment of five years for the assault. On June 16,1978, in an unreported order in Donalds v. Maryland, No. 375, September Term, 1978, and filed on June 19,1978, we dismissed an appeal of the judgment of the Circuit Court for Washington County because of untimely filing.

By an order dated November 21, 1978, in post conviction proceedings in the Circuit Court for Washington County (Rutledge, J.), the appellant was granted a belated appeal. In an unreported per curiam opinion in Donalds v. State, No. 1306, September Term, 1978, and filed on June 19, 1979, we affirmed the February 7,1978 judgment of the Circuit Court for Washington County. In Donalds v. State, 286 Md. 543, 410 A.2d 16 (1979), the Court of Appeals reversed our affirmance of the February 7, 1978 judgment of the Circuit Court for Washington County because of the failure of the court to comply with the provisions of Maryland Rule 735 d., regarding waiver of a jury trial, as set forth in Countess v. State, 286 Md. 444, 408 A.2d 1302 (1979). By our order of January 17,1980, we vacated the February 7, 1978 judgment of the Circuit Court for Washington County, and remanded the case for a new trial.

On August 5, 1980, the appellant was convicted, in a trial on the same charges, by a jury in the Circuit Court for Washington County (Wright, J.), of robbery. At the conclusion of the trial he was committed to the custody of the Division of Correction for ten years for the robbery. On appeal the appellant raises two contentions:

1. that he was not brought to trial within the 180 day period set by Maryland Rule 746;

2. that he was denied his right to a speedy trial.

The record before us shows that at about 2:00 P.M. on Tuesday, September 13, 1977, when Joan Vink went to her car in the parking lot of a shopping center, two women hitchhikers asked her for a ride. Vink agreed and the three women entered the car. As she was preparing to drive away, a man who was sitting, unknown to Vink, in the back seat, put a rope around her neck.

Vink, with the aid of a passerby, was able to escape from the car. The man then entered the front seat and drove the car away. A short time later, the police located and stopped Vink’s car. It was being driven by the appellant and he had the two women hitchhikers with him.

1. Trial within a 180 day period

Appellant, relying on Maryland Rule 746 and State v. Hicks, 285 Md. 310, 403 A.2d 356 (1979), contends that the trial court should have granted his motion to dismiss because he was not brought to trial within 180 days from the date of the filing of the mandate of the Court of Appeals remanding the case for a new trial.

Maryland Rule 746 provides:

a. General Provision.

Within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723, a trial date shall be set which shall be not later than 180 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723.

b. Change of Trial Date.

Upon motion of a party made in writing or in open court and for good cause shown, the county administrative judge or a judge designated by him may grant a change of trial date.

The actual retrial occurred two weeks after the expiration of 180 days from the filing of this Court’s mandate as directed by the Court of Appeals. Appellant contends that under this factual situation the Hicks case, supra, mandates a dismissal of the charges against him and that the trial court erred in denying his motion to dismiss. We do not agree. We hold that the mandatory dismissal under Hicks and Rule 746 applies only to the original trial and not to any subsequent trial under remand from an appellate court.

We said in State v. Mines, 48 Md. App. 30, 425 A.2d 1044 (1981):

The fact of the matter is that Rule 746 and Art. 27, Sec. 591 do not cover this situation. The striking of the guilty plea here may be likened to the grant of a new trial by a trial court or a remand for a new trial by an appellate court. Neither the rule nor the statute prescribes within what period the trial shall be had in such circumstances; it is the first bringing of an accused to trial that is contemplated by both of them.

2. Speedy trial

The appellant secondly contends that he was denied his right to a speedy trial under the holding of the Supreme Court of the United States in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972). In the instant case the docket entries show that our January 17, 1980 order directing a new trial was filed in the Circuit Court for Washington County on January 24, 1980. Subsequently the docket contains an entry which reads:

"July 7, 1980 Case scheduled for trial this date, but was continued by the Court due to lack of time to try it, and inavailability of another courtroom; ...”

On July 23, 1980, the appellant filed a motion to dismiss on the grounds that he had not been brought to trial within 180 days of the receipt by the court of our order remanding the case for a new trial. The motion was denied at the commencement of the trial on August 5, 1980. This was 194 days from the time of receipt by the court of our order directing a new trial.

Once a determination is made that there has been a delay of constitutional magnitude in bringing an accused to trial, Barker v. Wingo, supra, prescribes that a balancing test is to be conducted to determine if an accused has been deprived of his right to a speedy trial.

The record reflects that the defendant moved a motion for a speedy trial on October 5, 1977; at that time he waived a grand jury indictment on the original proceedings. At no time thereafter either in the original proceedings or in the retrial did the defendant or his counsel renew his motion for a speedy trial.

On July 3, 1980 when his counsel filed his motion to dismiss the sole ground for his petition that the case against him be dismissed "with prejudice” was contained in this paragraph:

That more than 180 days have passed since the mandate was issued by the Court of Appeals of Maryland and the defendant has not been tried and counsel appearance was a matter of record; thus this Court lacks jurisdiction over the defendant for the crimes herein charged.

At argument pre-trial on the motion to dismiss the same ground was offered to support appellant’s motion. No mention of a speedy trial issue was made during appellant’s argument. The trial judge denied the motion to dismiss and the case proceeded to trial. From our own independent review of the record we conclude that the speedy trial issue was not raised or decided below and was not reserved for appellate review.

Judgments affirmed; costs to be paid by appellant.

      . The rule was amended in 1979 by the substitution of "180 days” for "120 days” in section a, and was further amended in 1980 and substituted good cause for extraordinary cause in section b.


text:
    STEPHEN DONALD NYE v. STATE OF MARYLAND
    [No. 1290,
    September Term, 1980.]

      Decided June 5, 1981.

      The cause was argued before Moore, Liss and MacDaniel, JJ.

      John H. McDowell, with whom was Paul Ottinger on the brief, for appellant.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General of Maryland, and John R. Salvatore, State’s Attorney for Washington County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, Stephen Donald Nye, was indicted on November 27, 1979 for possession with intent to distribute controlled dangerous substances (count 1); possession of controlled dangerous substances (count 2); and possession of controlled dangerous paraphernalia (count 3). On December 14, 1979, appellant’s counsel entered his appearance and immediately moved to suppress all evidence derived from intercepted telephonic communications. A hearing on the motion to suppress was held on March 16, 1980, and the motion was subsequently denied. A renewed motion to suppress was then filed on May 13, 1980, based upon the newly decided case of Baldwin v. State, 45 Md. App. 328, 413 A.2d 246 (1980),* which was again denied. Appellant was tried before a jury on May 16, 1980, and convicted of counts one and three. Sentence was imposed on each count and defendant appeals. He raises the following issues to be determined by this Court:

I. Did the trial judge err in refusing to suppress all evidence relating to the interception of telephone conversations since the order for a wiretap did not comply with Maryland Code (1974, 1980 Repl. Vol.), Courts and Judicial Proceedings Article, Section 10-408 (f)?

II. Did the trial court err in refusing to suppress evidence obtained and derived from intercepted telephone conversations because the affidavit failed to show probable cause that "higher ups”, the objects of the investigation, existed?

III. Did the trial judge err in determining that the motions to suppress evidence relating to evidence obtained as a result of ex parte orders to intercept telephonic communications could not be considered since they violated Rule 736 of the Maryland Rules of Procedure?

IV. Did the trial judge err in permitting the use of copies of the application, affidavit and order for interception of telephonic communications at the hearing on this motion to suppress when the originals were allegedly lost and the seals on the applications, affidavits and orders were broken?

V. Was it reversible error not to suppress any evidence derived from intercepted telephonic conversations because of the State’s failure to comply with Rule 741’s automatic discovery?

VI. Did the trial judge err in refusing to suppress any evidence obtained as^a result of the search of the appellant and his residence and effects because of the invalidity of the search warrant?

VII. Did the trial judge err in refusing to suppress evidence obtained through intercepted telephonic communications since it was not shown that "higher-ups” existed and that other procedures would fail to produce desired information?

VIII. Was the appellant denied due process of law because the lower court refused to grant him a new hearing on his motion to suppress after documents had been found by the court?

At the hearing on the motion to suppress on March 6, 1980, it was determined that two separate wiretap orders were involved; the first, dated August 2, 1979, authorized interception of communications from the phone of Linda Woods; the second, dated August 27, 1979, authorized a wiretap on a phone listed in the name of Theodore Stevens.

During the course of the hearing it was discovered that the applications and supporting affidavits for the wiretap orders had been contained in sealed envelopes. One of the envelopes had been opened prior to the hearing without an order of court, presumably by the state’s attorney. Because of the confusion, the trial judge indicated that there would be a recess to another day; however, on April 9, 1980, the trial judge filed a memorandum opinion which read as follows:

In each of the above cases the Defendant has filed a Motion to Suppress Evidence obtained by the interception of telephonic communications. At the hearing some confusion existed regarding the originals of two separate applications for wiretaps. Two sealed envelopes were produced from the Clerk’s Office but they yielded only an original application with supporting documents and copies of the others. After the hearing the Court located a third sealed envelope in the Clerk’s vault which contained the original documents associated with the second wiretap. All documents have been reviewed by the Court and have been resealed and returned to the Clerk’s vault.
The Court has reviewed both wiretap applications and the documents in support thereof and finds that they satisfy both the Maryland and Federal Statutes dealing with wiretaps. And the Court further finds that they contain within them sufficient probable cause for their issuance. Therefore, all Motions to Suppress will be denied.

The renewed motion to suppress stated thirteen reasons for the granting of the motion, some of which had been included in the original motion. The new reasons were stated as follows: the allusion to "higher-ups” in the affidavit; an absence of a mandate in the order for regular reports specifying progress toward the goal of the interception; an absence of a showing of the need for a continuance of the interception; and the impropriety of issuing a search warrant based on the affidavit utilizing information which appellant contended was obtained by illegal wiretaps. The trial judge ruled that the renewed motion to suppress was untimely filed and denied the motion to suppress.

I. and III.

Appellant contends initially that the trial judge erred in refusing to suppress all of the evidence relating to the interception of telephone conversations in this case because of the order for a wiretap did not comply with Section 10-408 (f) of the Courts and Judicial Proceedings Article. That section mandates that:

Whenever an order authorizing interception is entered pursuant to this subtitle, the order shall require reports to be made to the judge who issued the order showing what progress has been made toward achievement of the authorized objective and the need for continued interception. The reports shall be made at the intervals the judge requires.

In addition, appellant urges that the trial court erred in holding that appellant’s second suppression hearing was not timely filed pursuant to Maryland Rule 736. That rule provides in pertinent part:

Rule 736. Motions Before Trial.
a. Mandatory Motions
A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;
b. Time for Filing Mandatory Motions.
A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or W aiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.

It should be noted that appellant apparently concedes that Rule 736, which was adopted after Section 10-408 (i) (2) of the Courts and Judicial Proceedings Article, takes precedence over that section. See Smith v. State, 5 Md. App. 633, 248 A.2d 913 (1968). Appellant elects to offer two alternative arguments to sustain his contention. He urges that 18 U.S.C. Section 2518 (10) rather than Rule 736 is controlling and that under that section any suppression motion made before trial, hearing or proceeding is timely. Alternatively, he argues that if Rule 736 is controlling, there was "good cause shown” to justify the filing of his second suppression motion so that the new grounds argued therein should have been heard and considered by the trial court.

The assertion that 18 U.S.C. Section 2518 is controlling over the case is raised for the first time on appeal. It was never argued or considered below. It is therefore not preserved on appeal. See Rule 1085; Von Lusch v. State, 279 Md. 255, 368 A.2d 468 (1977). In any case, the federal wiretap statute is controlling only in those instances where it is more restrictive than the Maryland statute. See State v. Siegel, 266 Md. 256, 292 A.2d 86 (1976). It is not disputed that the Maryland statute is to a significant degree more restrictive than its federal counterpart. See generally Gilbert, A Diagnosis, Dissection and Prognosis of Maryland’s New Wiretap and Electronic Surveillance Law, 8 U. Balt. L. Rev. 183 (1979). We hold that Rule 736 rather than 18 U.S.C. Section 2518 (10) is controlling in this case.

Appellant next asserts that this Court’s decision in Baldwin v. State, supra, filed April 15, 1980, presented him with new arguments which were not available to him on December 14, 1979, the date he filed his initial motion to suppress. He contends that the Baldwin case, supra, (holding that there had not been sufficient compliance with Section 10-408 (f)) was sufficient "good cause” to require a hearing on his second motion to suppress. We do not agree. The requirements of Section 10-408 (f) predated Baldwin and appellant failed to allege any facts which excused him from raising the issue under Rule 736 and the failure to do so amounted to a waiver of this argument. See Kohr v. State, 40 Md. App. 92, 388 A.2d 1242 (1978).

Assuming, arguendo, that the delay in raising the issue may be considered as being for good cause our own independent review of the record convinces us that the ex parte orders issued in this case complied with Section 10-408 (f). Two ex parte orders authorizing wiretaps were issued, the first on August 2, 1979 and the second on August 27, 1979. Both orders provided as follows:

Ordered that the State’s Attorney for Washington County, or his designee shall advise this Court of the progress of the interception process, and the current status of the investigation in writing on each Monday throughout the course of the interception process, and shall reasonably record the date, time, and general content of such progress reports.

Appellant argues that the above quoted requirement does not comply with Section 10-408 (f) in that it does not require that the reports show "the progress made toward achieving the authorized objective of the orders.” Our review of the language of the orders convinces us that, as distinguished from Baldwin, supra, the orders did require the police to make regular, timely reports at regular specified intervals. We conclude that a commonsense review of the language of the orders suggests that the police were being directed to apprise the issuing judge of the progress of the interception; i.e., the progress toward the authorized objective.

This conclusion is supported, we believe, by the opinion of the Court of Appeals in State v. Baldwin, 289 Md. 635, 426 A.2d 916, 921 (1981), where Chief Judge Murphy stated

As earlier indicated, Section 10-408 (f) directs in mandatory terms that the wiretap order contain a provision that periodic reports be made to the issuing judge so as to permit him to evaluate what progress is being made toward achievement of the authorized objective and the need for continuing interception. This provision, coupled with the further requirement of the section that the reports "shall be made at the intervals the judge requires,” is implementary of Section 10-408 (e) of the Maryland Act — a minimum standard required by Section 2518 (5) of the federal law which provides that a wiretap order may not be issued for a period "longer than is necessary to achieve the objective in strict compliance with this subtitle.” [Emphasis supplied.]

We do not have before us the question as to whether the police adequately complied with the reporting provisions of the ex parte order in the reports they made to the issuing authority. This issue was not raised below and was therefore not reserved for appeal. Rule 1085.

II. and VII.

Appellant argues secondly that the application and affidavit submitted in support of the issuance of the ex parte order of August 27,1979, did not comply with Section 10-408 (c) of the Courts and Judicial Proceedings Article. He suggests that there were no facts included in the affidavit and application which show that probable cause existed to believe that "higher-ups” were involved in supplying appellant and his partner, Patrick Herbert, with cocaine. We have some doubt as to whether these issues were preserved for appeal; however, assuming arguendo that they were preserved, we nonetheless find no merit in this contention.

The record discloses that the affiant, Warren E. Rineker, had been a police officer for seven years, four and one-half of which he had been a member of the State Police narcotics division. He had extensive special training and experience in the area of violations of the controlled dangerous substance laws. He had worked undercover and was experienced in the use of mobile and electronic surveillance techniques. He evidently was an expert in the field of narcotics investigation. Officer Rineker stated in his affidavit:

Your affiant, with his experience and special training, as hereinbefore described, has probable cause to believe that the aforesaid Patrick Herbert and Steve/N (NFD) are purchasing their supplies of Controlled Dangerous Substances from unknown higher echelon sources and that these sources have access to larger quantities of Controlled Dangerous Substances.

The underlying facts which support the officer’s conclusions were set out in the affidavit as follows:

1. An ex parte order dated August 2, 1979 authorized the electronic interception of telephone conversations over telephone number 842-2945 listed to L. A. Woods.

2. Pursuant to the authorization numerous drug-related phone conversations between Woods and Herbert, Woods and Steve/N (NFD), and Woods and others were intercepted, some transcripts of which were included in the affidavit.

3. The conversations indicated, in Rineker’s expert opinion, that Herbert and Steve/N were partners in distributing Controlled Dangerous Substances and that they were suppliers of Controlled Dangerous Substances to Woods.

4. Two conversations between Woods and Herbert (call #41 and 63) suggested that Herbert needed a day in which to acquire enough Controlled Dangerous Substances to be distributed to Woods.

5. On August 14, 1978, Rineker engaged in an undercover contact with Woods in an effort to ascertain the "higher-ups” involved with Herbert and Steve/N. In the course of the contact, Woods advised Rineker that she had a constant supply of excellent quality cocaine. In response to Rineker’s inquiry concerning the amounts of cocaine Woods could supply him, she "... stated that for a very large transaction to take place, her suppliers would have to travel a good distance to obtain it.”

6. Rineker’s expert opinion was that Herbert and Steve/N were receiving Controlled Dangerous Substances from "higher-ups.”

The issuing judge, in our opinion, could reasonably infer from these facts that there was probable cause to believe that Herbert and Steve/N were not an original source of the Controlled Dangerous Substances, but received their supply from another source. The application and affidavit in support of the ex parte order of August 27, 1979, contained more than a sufficient showing that probable cause existed to believe that "higher-ups” existed in compliance with Section 10-408 (c).

In addition, there was probable cause to believe that "[njormal investigative procedures have been tried and have

failed or reasonably appear to be unlikely to succeed if tried or to be too dangerous.” Section 10-408 (c) (3). As Judge Lowe, writing for this Court in Bell v. State, 48 Md. App. 669, 429 A.2d 300 (1981) stated:

It was clear to the issuing judge and to the judge hearing the suppression motion, and it is clear to us, that the wiretap
"procedures were not. .. routinely employed as the initial step in criminal investigation.” United States v. Giordano, 416 U.S. 505 (1974),
which is the danger the provision in question was intended to guard against. As pointed out by the trial judge, the statute was not intended to foreclose electronic surveillance, but rather, as Giordano suggests, it is to assure an issuing judge by showing the unlikelihood of success, or the prior failure of routine procedures, that wiretapping is not being asked for as an initial convenience.

See also Calhoun v. State, 34 Md. App. 365, 367 A.2d 40 (1977).

Appellant argues as a corollary to the contentions offered immediately prior hereto that the affidavit relating to the ex parte order of August 27, 1979, did not show the exhaustion of normal investigative procedures in the effort to acquire information as to "higher-ups,” as required by Section 10-408 (c) (3). The affidavit discloses that an unsuccessful attempt was made by police to secure information concerning the activities of Herbert and Steve/N through ordinary investigative police work. The police instituted mobile surveillance of Herbert and stationary surveillance of the premises at 206A and 213 Rockdale Road. Neither effort resulted in information about the identities of "higher-ups.” Registration checks of motor vehicles at the Rockdale Road residences of Herbert and Steve/N revealed no information useful to the investigation. Because of the physical locations of the residences it was difficult for the police officers to remain inconspicuous during surveillance. Officer Rineker, in his affidavit, gave as his expert opinion that despite undercover purchases from Woods and the involvement of Herbert and Steve/N it was unlikely that any of them would identify the "higher-ups” directly. He further believed that the execution of a search warrant for their premises was unlikely to disclose the source of supply of the contraband in this case. The police examination of toll records was unproductive and in the opinion of the affiant was expected to be of limited benefit. Under the totality of the circumstances set out in the affidavit, we conclude that the police authorities had no means other than electronic surveillance available to them for obtaining information about "higher-ups.” See Washburn v. State, 19 Md. App. 187, 310 A.2d 176 (1973); Calhoun v. State, supra.

IV.

At the pre-trial motions hearing, the trial court was made aware of the fact that a sealed package containing materials pertinent to the electronic surveillance authorizations had been opened by the prosecutor without leave of court. Appellant now argues that the unauthorized opening of the sealed package should result in the suppression of the evidence seized as a result of the wiretap. Appellant made no such argument at trial. This contention, therefore, was not preserved for appeal. Rule 1085. We note in passing, however, that a violation of the pertinent section as to the sealing requirement under Section 10-408 (g) (2) is punishable as contempt only under Section 10-408 (g) (3) and is not remediable by a suppression of the evidence under Section 10-408 (i).

At the pre-trial motion the trial court also discovered that only the original materials for the August 2, 1979 ex parte order were within the packet considered by the court. Appellant, again, for the first time on appeal, argues that the "unexplained” absence of the original materials of the August 27, 1979 order should require the suppression of the evidence seized as a result of the wiretap. Although this issue was not preserved for appeal, the short answer to appellant’s complaint is that the misplaced materials were discovered by the court in a sealed envelope in the vault of the clerk’s office. No misconduct or violation of the wiretap statute was proffered at the hearing below.

V.

Appellant next complains he was not furnished with the information to which he was entitled in response to the motion for discovery which he filed under Rule 741. Specifically, immediately before trial, defense counsel informed the trial court that the prosecutor had failed to furnish to the defense a completely legible transcript, referring apparently to the intercepted conversations involving the appellant. Defense counsel also contended he was not given copies of the ex parte orders and the accompanying applications. On appeal, he suggests several other violations of Rule 741 but none of these additional complaints were raised below and they are not before us on appeal. See Von Lusch v. State, supra.

The trial court examined defense counsel’s file and determined that counsel had been supplied with legible copies of the ex parte orders and applications. The trial court was further advised by the assistant prosecutor that no intercepted conversations would be used against the appellant at trial. The court concluded and we agree that under these circumstances there was no requirement either under Rule 741 or under Sec. 10-408 (g) (4) and (h) that the State furnish transcripts of the intercepted conversations to the defendant. We find that appellant was afforded proper discovery.

VI.

Appellant, for the first time, sought suppression of the evidence seized from his Box 213 residence in his second motion to suppress filed on May 13, 1980. This motion was not timely filed under the rules and the failure to move for the suppression of the evidence seized as a result of the search and seizure warrant amounted to a waiver under Rule 741.

VIII.

We find no merit in this contention. Appellant raised no issue below concerning the authenticity of the materials considered by the trial judge in determining whether they satisfied the requirements of the wiretap statute.

Judgments affirmed, costs to be paid by appellant.

      . Baldwin was subsequently affirmed by the Court of Appeals in State v. Baldwin, 289 Md. 635, 426 A.2d 916 (1981).