author: Gilbert, C. J.,

text:
    MELVIN WIDOMSKI v. CHIEF OF POLICE OF BALTIMORE COUNTY
    [No. 511,
    September Term, 1978.]

      Decided February 7, 1979.

      The cause was argued before Gilbert, C. J., and Mason and MacDaniel, JJ.

      Leo Howard Lubow, with whom were Paul Mark Sandler and Freishtat & Schwartz on the brief, for appellant.

      John A. Austin, Assistant County Solicitor for Baltimore County, and Edward F. Seibert, Chief Assistant County Solicitor, with whom was J. Carroll Holzer, County Solicitor, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal has grown out of a “Jekyll and Hyde” operation nefariously conducted by a few Baltimore County police officers assigned to the Dundalk area in 1970-1972. The Internal Affairs Section of the County Police Department supplied the answer to Juvenal’s question of “who is to guard the guards themselves,” by uncovering the clandestine turnabout activities of those few police officers who used their shields as a license to steal. During the course of Internal Affairs’ investigation, it discovered that the appellant, Lieutenant Melvin Widomski, believed to be a knowledgeable witness, was, in fact, one of those that the investigators sought. As a direct result of the discovery, Widomski was subsequently dismissed from the force. He appealed the dismissal to the Circuit Court for Baltimore County, where Judge Walter R. Haile affirmed the action taken by the Chief of Police in firing Widomski.

The appellant seeks to have this Court reverse the judgment of the circuit court and order appellant’s reinstatement as a police lieutenant.

To accomplish that end, we would have to conclude that Judge Haile erred in upholding the Baltimore County Police Department Disciplinary Board’s (Board) finding that Widomski was guilty of lying, filing false reports, receiving stolen goods, and of petty theft. The basis of the request for reversal is not that Widomski did not do the acts attributed to him, but rather that the police department’s investigators failed to adhere to the procedural requirement of the “Law-Enforcement Officers’ Bill of Rights.” Md. Ann. Code art. 27, §§ 727-734D.

Widomski presents us with nine (9) issues masquerading as but three (3). Before considering them, seriatim, we shall briefly set out the facts from which this appeal arose, adding in our subsequent discussion of an issue, such further facts as necessary to that particular matter.

In the year 1976, the Internal Affairs Division of the Baltimore County Police force conducted an investigation of improper and illegal conduct by police officers attached to the Dundalk district during the time period 1970-1972. At the time under scrutiny, then Corporal Widomski had been stationed in Dundalk. On two dates, March 11,1976, and June 18,1976, police officers assigned to Internal Affairs interviewed Widomski in connection with the investigation, but according to testimony at the Board hearing, Widomski was not then a suspect. Lieutenant William Ferrell, acting on orders from a superior, conducted a polygraph examination of Widomski on August 6, 1976, “to see if [Widomski] had any knowledge that had been undisclosed” with respect to the Dundalk investigation.

Lieutenant Ferrell’s testimony was that when he administered a polygraph test, he usually asked follow-up questions when the interviewee answered in a manner that “would arouse ... [Ferrell’s] suspicions” as to the truthfulness of the answer. He followed that procedure with Widomski. Immediately upon review of the polygraph results, Ferrell determined that Widomski had been untruthful in negatively responding to four (4) questions. Ferrell then returned to the examination room where he informed Widomski that the test “indicated ... [Widomski] wasn’t being completely truthful to some of the questions,” and Ferrell asked Widomski if there was “anything else that he wanted to tell me about it.” Over objection of appellant, Lieutenant Ferrell was permitted to testify that Widomski named “at various times different officers that he had observed doing different things.” We infer, in the light of the nature of the proceedings before the Board, that “doing different things” meant things of an unlawful nature.

Appellant’s counsel, who had requested and obtained from the Board a continuing objection to Ferrell’s testimony because of the “lack of voluntariness of the interrogation” by Ferrell, a short while later interposed another objection on the ground that the interview had become accusatory, and that at that stage Widomski should have been formally informed of his rights under Md. Ann. Code art. 27, § 728 (b). The Board chairman sustained the objection, stating: Asked whether the Board would accept the testimony already elicited, [the chairman] responded:

“ ‘This Board rules that at the time we got from the inquisitory stage until the time there was a positive reaction on the polygraph, there should have been a professional view from the law enforcement officer’s viewpoint that he should have been advised of his rights, and we are going to discontinue any more testimony with this witness.’ ”
“ ‘To the point that we have heard so far, but this will be a consideration in our final judgment, so I say to you that this Board feels as professional law enforcement officers that this man’s rights were violated once we set the seed [sic] to move from the inquisitory and it was felt validly from his reactions and response from a professional polygraph operator that, in fact, now he could become a party.’ ”

Immediately following the polygraph examination, Sgt. Philip Huber of the Internal Affairs Section, was told to “interview” Widomski “in reference to certain revelations that were brought out in the polygraph examination and I [Sgt. Huber] was not told any of the revelations.” After giving Widomski a “Notification to Accused of a Complaint,” an explanation of the Police Officers’ Bill of Rights, and Miranda warnings, Sgt. Huber began to interrogate appellant. The questioning was tape recorded.

At the hearing before the Board, the appellant’s attorney objected to Sgt. Huber’s testimony, regarding his interrogation of Widomski. The objection was double barreled: 1) Art. 27, § 728 (b) (8) was not complied with inasmuch as the taped record did not include the portion of the interrogation wherein the appellant was given his rights, and 2) a question of voluntariness of appellant’s statement was raised by the virtue of a strike out on the “Explanation of Police Officers’ Rights” form. The form contained a question which asked, “Do you want a lawyer present at this time?” Widomski’s response of “yes” was written in the appropriate place, was crossed out and then the word “no” was written. The initials of appellant, “MW,” appear alongside the reply “no.” The Board overruled the objection.

Over the continuing objection by appellant’s counsel, Sgt. Huber told the Board that during the interrogation, Widomski said he had “taken a box of grass seed” valued at $5, “a Fisher-Price toy,” valued at between $6 and $8, “two trash cans” and “a can of car wax”; that Widomski failed to report improprieties of other officers for fear of retaliation; that Appellant Widomski knew that another officer, after deliberately driving a police vehicle into a store door in order to gain entry into the building, filed a false report to cover up the impropriety; that appellant accepted a ladies watch and a pair of sunglasses from other officers; and that Widomski accepted fifteen dollars from an officer who gave that sum to him without comment.

Widomski did not testify. The Board, as we have seen, adjudged Widomski guilty of a number of the charges and recommended his dismissal from the department stating:

“What concerned us was the overview that those three minor larcenies impugned the credibility of... [Widomski] to actively function as a supervisor over the control of his people and failed to give him, allow him the flexibility to come forth in that time frame of 1970 to ’72 when conditions were conclusive in this Department that there were other resources he could have sought out ... 'but ... these minor larcenies ... didn’t permit him to do that.
The Board feels that his future, to testify in situations where there is a one on one and no physical evidence present and the guilt or the innocence of a Defendant would be based solely on the basis of the Lieutenant’s testimony would certainly be an issue by any defense.”

The Chief of Police concurred, and Widomski was dismissed as of the date of his suspension.

I.

“Whether the decision of the Disciplinary Board is null and void for the reason that incident to its deliberations the Board played and considered portions of a tape that were not admitted into evidence?”

This issue arises from a misunderstanding of what was admitted into evidence, the tape recording of Sgt. Huber’s interrogation of Widomski or a highly selective portion of that tape. Widomski asserts the latter, while the Chief of Police maintains it is the former. During the course of an argument over appellant’s objection to testimony from Sgt. Huber in regard to the stolen sunglasses, Huber stated that his recollection was refreshed by his own notes of what was on the tape. Departmental counsel said that Widomski had been furnished a copy of the tape. Counsel for Widomski declared, “I would like to hear the tape at this time in regard to that one limited area.” Major Vittek, the chairman of the Board, replied, “All right, we will rule on the admissibility and bring the tape in, or else we can be sitting here.” Counsel for Widomski announced, “I have a copy [of the tape] if you can find a machine.” The matter of the tape was “skipped” at that point and Sgt. Huber continued his testimony concerning Widomski’s statement to Huber. Following the completion of Huber’s testimony, the question of the tape again arose. Major Vittek opined:

“The issue with the tape and the fact that we called for it, and of course, we would like to hear it and we could be here quite some time, so if it’s all right with both of you gentlemen, unless you wish to introduce other people that we haven’t heard, ... [the Board would hear summation].”

The Major then exclaimed, “I see we have found it [the tape].” The transcript contains a court reporter note: “(Whereupon the pertinent part of the tape referred to above was played),” followed by the comment of counsel for the Departmént that he “would like the tape to be in evidence, at least for that portion we heard.” The reporter note states “(The tape referred to above was marked Department Exhibit No. 10).”

Summation of counsel was heard and then the Board retired to consider the relevant and competent evidence presented at the hearing. The Board found Widomski guilty. Major Vittek then turned to Wido'mski’s attorney and said, “You did have some questions that you acquainted me with..., and I think you better make that a matter of record.” Counsel then explained that it was his “understanding that during the Board’s deliberations a portion of the tape was played by the Board which was not the subject of the point of clarity for which the tape was brought in.” In short, Widomski’s lawyer charged that the Board did not confine its listening of the tape to that portion that dealt with the sunglasses, but that it listened to other parts of the tape which had not been introduced into evidence. The transcript relative to the admission of the tape was read to the Board which ruled, in effect, that irrespective of what Widomski’s attorney believed at the time the tape was offered into evidence, the entire tape was introduced and not just the limited part sought by Widomski.

Our review of the transcript, the pertinent part of which is quoted above, leads us to conclude that although Widomski may have intended that only that specific segment of the tape dealing with the question of the sunglasses was being introduced, the entire tape was admitted without objection. We note that the Departmental counsel said he “would like the tape to be [admitted] in evidence, at least for that portion we heard.” Such a statement is an expression that counsel sought the introduction of the entire tape, but that if the Board would not agree, then the Board should admit at least that portion of the tape to which all had listened. The Board’s admission of the tape into evidence was an acceptance of the entire tape and not just a part of it, regardless of what Widomski’s attorney believed was being received into evidence by the Board. The lack of a timely objection constitutes a waiver. Widomski’s belated objection that the tape, as distinguished from a mere section of it, was heard by the Board was not only too late, but bottomed on a mistake of fact. In any event, the objection, coming as it did after the Board’s findings were announced, is untimely.

II.

“Whether the testimony of Lt. Ferrell and Sgt. Huber should have been excluded from evidence because the interrogations that they conducted contravened MD. ANN. CODE art. 27, § 728 and Miranda v. Arizona?’

Widomski has subdivided issue II into various attacks on the propriety of the admission into evidence of the testimony of Lt. Ferrell and Sgt. Huber.

A.

“The polygraph examination conducted by Lt. Ferrell should have been conducted in accordance with Art. 27, § 728 because (1) just prior to the test Widomski conceded that he had been untruthful in a past interview, and (2) the questions asked were of such a nature as to elicit responses which ‘could lead to disciplinary action.’ ”

Md. Ann. Code, art. 27, § 728 (b) states that “[wjhenever a law-enforcement officer is under investigation or subjected to interrogation by a law-enforcement agency, for any reason which could lead to disciplinary action, demotion or dismissal, the investigation or interrogation” must be conducted in accordance with various procedures set out in the statute. (Emphasis supplied.) The testimony at the hearing before the Board demonstrates that at the time Widomski was asked to submit to the polygraph examination, he was neither under investigation nor was he interrogated for reasons which “could [have led] to disciplinary action, demotion or dismissal.” In fact, Lt. Ferrell flatly said, “I was told that he was not a suspect, don’t worry about his rights during the polygraph examination.” The Lieutenant was asked, “Did Captain Willináki indicate to you that Lt. Widomski might be involved in this?” His response was, “No, not in any way other than the possibility that he might, having been there at the time, have had knowledge of what was going on.”

We believe it was reasonable for the Board to conclude that at that point in the case, Widomski was thought to be merely a witness who might possibly aid the Department’s investigation, and there was no necessity to conduct the polygraph examination in accordance with Md. Ann. Code art. 27, § 728.

The Board determined that the examination of Widomski moved from the inquisitorial stage to the investigatory stage when Lt. Ferrell decided that Widomski had not been completely truthful in his answers. The Board did not allow Ferrell to testify as to anything Widomski said after Ferrell made his decision relative to Widomski’s untruthfulness, because Widomski had not been advised of his rights pursuant to section 728.

Inasmuch as the testimony by Lt. Ferrell was limited to events occurring prior to the time Widomski became a suspect, there was no violation of section 728.

B.

“The Huber interrogation violated art. 27, § 728 because (1) it immediately succeeded Ferrell’s interrogation, thereby subjecting Widomski to two interrogators rather than to one as required, and (2) a complete record was not kept of the interrogation.”

To reach this issue we have to assume that Widomski is focusing his attack on that part of Lt. Ferrell’s questioning that came into being after Ferrell decided Widomski was a suspect. We so assume because there was no interrogation of Widomski within the meaning of the statute until the matter moved from an inquisitorial to an accusatorial status. Ferrell’s testimony relative to the accusatorial stage was not

admitted so that we have no way of knowing the length, breadth or depth of his questioning of Widomski. We shall, however, give Widomski the better of it by inferring that the interrogation cut three ways, “deep, wide and continuously.” With that inference firmly in mind, we begin our trek toward a resolution of the Huber interrogation.

Then Md. Ann. Code art. 27, § 728 (b) (3) is the statutory basis for Widomski’s argument. That section provided:

“The law-enforcement officer under investigation shall be informed of the name, rank, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation. All questions directed to the officer under interrogation shall be asked by and through one interrogator.”

We do not interpret section 728 (b) (3) in the same manner as Widomski, nor do we observe anything in the statute that proscribes successive interrogations, particularly when, as here, the questioning was conducted by a different police officer in a different locale, so long as there is compliance with Md. Ann. Code art. 27, § 728 (b) (6). Subsection (b) (6) mandates that interrogation periods shall be a reasonable length and timed so as to allow for personal necessities and rest periods. No complaint relative to subsection (b) (6) is registered by Widomski. Therefore, we consider only subsection (b) (3).

We read that subsection to mean that at a particular interrogation session only one person may conduct the interrogation. The subsection was enacted to avoid the use of the so-called “Mutt and Jeff,” or “Good Guy, Bad Guy” approach to interrogating a suspect, whereby one or more of the interrogators adopts a harsh, threatening attitude calculated by words or tone of voice to intimidate the suspect into admission, while the other interrogator assumes the posture of a friend of the downtrodden and the protector of the suspect. That posture, of course, is equally effective in bringing about the suspect’s confession. Such action falls short of the prohibited “third degree.” It is directed toward the psychic rather than the physical. The former is a permissible police tactic, the latter is not.

The interrogation of Widomski by Huber was conducted within the frame work of the “Law-Enforcement Officers’ Bill of Rights.” Judge Haile did not err in concluding that the Board properly admitted Huber’s testimony concerning that interrogation.

The second part of Widomski’s assault on the Huber interrogation is focused on then subsection 728 (b) (8) of the Law-Enforcement Officers’ Bill of Rights which provided:

“A complete record, either written, taped or transcribed, shall be kept of the complete interrogation of a law-enforcement officer, including all recess periods. A copy of the record shall be available to the officer or his counsel upon request.”

Basically, Widomski contends that “no record was kept of the dialogue which prompted ... [him] to change to the negative his response to the question ‘Do you want a lawyer present at this time?’ ” We glean, although it is by no means clear, that Widomski’s position is that the record of the interrogation must be 1) written, or 2) taped or 3) transcribed, and that whichever of the three methods is employed, the other two are excluded. We do not believe such a narrow, restrictive construction has been legislatively mandated. We read subsection 728 (b) (8), wherein it states that the record of the interrogation shall be “either written, taped or transcribed,” to mean that the record may be wholly written, or wholly taped, or wholly transcribed, or a combination of any two or more of the three methods, so long as there is a complete and preserved record for the review by counsel and by a court, if there be an appeal. Under E (2) infra, we have summarized Sgt. Huber’s testimony relative to the execution by Widomski of the waiver of counsel. The Sergeant’s version of the events surrounding that waiver stands in the record unchallenged. Thus, even though the colloquy between Huber and Widomski was not “written, typed or transcribed,” the failure to comply with the strict letter of the statute is harmless in the light of any contradictory testimony.

C.

“Evidence obtained in violation of art. 27, § 728 is inadmissible, and hence, the disciplinary board erred in admitting into evidence over the objection of counsel the testimony of Lt. Ferrell and Sgt. Huber.”

Widomski's next averment presupposes that the Court would decide that Lt. Ferrell and Sgt. Huber obtained evidence in violation of Md. Ann. Code art. 27, § 728. That portion of Lt. Ferrell’s evidence that was obtained in violation of the Law-Enforcement Officers’ Bill of Rights was not received by the Board. The testimony of Ferrell and Huber that was heard by the Board was admissible. There was, as we have said, no evidence received by the Board that had been obtained in violation of the strictures of Md. Ann. Code art. 27, § 728.

D.

“The testimony of Sgt. Huber additionally is inadmissible for the reason that Huber’s interrogation would not have been conducted but for the illegally administered polygraph test.”

The attempt by Widomski to exclude Huber’s testimony is based on the faulty premise that the “illegally administered polygraph test” invokes the doctrine of the “fruit of the upas tree.” We need not and do not decide whether the exclusionary rule, founded in the criminal law, extends in this State .to administrative agency proceedings involving civil matters, inasmuch as it appears here wearing a maiden’s blush. In short, it was not raised and decided in the trial court; it is not properly before us. Md. Rule 1085.

E.

“Violation of Miranda v. Arizona”

(1)

“Lt. Ferrell conducted a custodial interrogation of Widomski, and hence, should have read Widomski his rights.”

This argument is but a paraphrasing of that raised in II A, above, with Miranda cranked into the matter. To make Miranda applicable there must have been a custodial interrogation of Widomski, an element that he perceives in the instant case. The late Chief Justice Warren penned in Miranda that:

“[T]he prosecution may not use statements ... stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” (Emphasis supplied.) 384 U. S. at 444.

The above-quoted passage contains a footnote which states, at 444, that “[t]his is what we meant in Escobedo when we spoke of an investigation which had focused on an accused.” The words of that footnote have been instructive in guiding the Maryland appellate courts in defining the perimeters of just what a “custodial interrogation” is. Widomski relies upon Myers v. State, 3 Md. App. 534, 240 A. 2d 288 (1968), wherein this Court quoted the California District Court of Appeals in People v. Hazel, 60 Cal. Rptr. 437, 440-41 (1967), saying:

“ * * * [Cjustody occurs if a suspect is led to believe, as a reasonable person, that he is being deprived or restricted of his freedom of action or movement under pressures of official authority. * * * [T]he custody requirement of Miranda does not depend on the subjective intent of the law enforcement officer-interrogator but upon whether the suspect is physically deprived of his freedom of action in any significant way or is placed in a situation in which he reasonably believes that his freedom of action or movement is restricted by such interrogation. * * * ” 3 Md. App. at 537, 240 A. 2d at 290.

Then Chief Judge Murphy stated in Myers that “the appellant was the prime suspect in a murder case and the police had undertaken to find him.” 3 Md. App. at 538, 240 A. 2d at 291. The Court held that when the police ordered Myers into their squad car and questioned him while driving to the police station there had been custodial interrogation. The testimony in the case at Bar is markedly different. Widomski was not a suspect until after the polygraph examination. Neither was he “deprived of his freedom of action in any significant way,” nor was he “placed in a situation in which he reasonably ... [believed] that his freedom of action or movement.. . [was] restricted....” The record does not indicate that Widomski had been either formally ordered to attend the examination, or that he would suffer any penalty for failure to attend.

The record does disclose, however, that Captain Joseph Talley had initially asked Widomski “to be there” for an interview. “There,” we infer, was not the polygraph examination room but rather the headquarters of Captain Talley. In any event, Talley made manifest that Widomski “was not ordered. He was asked to come [to the headquarters for an interview.]” If the record demonstrated that Widomski had been ordered to submit to the polygraphic examination, and if the record further disclosed a departmental policy of disciplinary action against an officer who refused to undergo that test, Holloway v. State, 26 Md. App. 382, 339 A. 2d 319 (1975) would be dispositive. There we .said that a police department’s written policy threatening disciplinary action against officers who refused to give a statement when ordered to do so amounted to coercion, and that statements obtained in such a manner would be inadmissible. See Garrity v. New Jersey, 385 U. S. 493, 87 S. Ct. 616, 17 L.Ed.2d 562 (1967). The record in the case sub judice does not, however, support a finding that Widomski was ordered, under penalty of disciplinary action, to subject himself to the polygraph test.

We have already seen that when Ferrell interviewed Widomski, the appellant was not a suspect, nor was there any reason to believe he was involved in the misdeeds and unlawful acts of some of the police officers stationed in Dundalk in 1970-1972. Miranda warnings were no more required to be read, at that point, to Widomski than they would be to any witness not a suspect before a statement is made. Miranda simply has no application.

(2)

“Sgt. Huber improperly continued to question Widomski after Widomski requested the presence of an attorney.”

Finally, on the appellant’s multilateral “second issue,” he argues that “(1) ... [his] statement was not voluntary, and (2) all questioning should have ceased once ... [he] requested an attorney.” The record is crystalline that Sgt. Huber followed, to the letter, the procedures of art. 27, § 728 in establishing the voluntariness of Widomski’s statements. While there was some dispute before the Board because of the slash mark through the original answer of “yes” and the substitution of the answer “no” to the printed question of whether Widomski desired an attorney, the testimony of Sgt. Huber shows that it was Widomski who was the instigator of further conversation on the point following the entry by Widomski of “yes” to that critical question. Sgt. Huber narrated that he would have stopped the interrogation, but that Widomski twice asked what Huber would do in his place. The first time Huber told Widomski that it was appellant’s decision to make. The second time, Huber merely said that he would tell the truth. Widomski’s questions and Huber’s answers thereto are neither a continuation of the interrogation of Widomski, nor a coercion to effect a waiver of Widomski’s right to have counsel present. Indeed, as the Board pointed out, given Widomski’s long experience with the police department, he certainly was aware of what he was doing, and there could hardly have been a more knowing and intelligent waiver of the right to counsel.

III.

“By forbidding Widomski to take the stand for the limited purpose of testifying that his statement to Huber was involuntary, the hearing board (1) violated Widomski’s Fifth Amendment rights, (2) violated Art. 27, § 730 (c), and (3) deprived Widomski of procedural due process.”

The Board would not allow Widomski to take the stand for the limited purpose of testifying that his statement to Sgt. Huber was involuntary.

After the objection on the ground of lack of voluntariness to the admission of appellant’s statement to Sgt. Huber was overruled, appellant moved that he be allowed to testify exclusively as to the voluntariness of the waiver of his right to counsel. The Department’s attorney objected. He maintained that such a procedure was not permissible in an administrative hearing. The Board declined to allow Widomski to testify for that limited purpose only, stating that if he chose to testify he would be subject to examination with respect to the merits of the case. A proffer was made by counsel for the appellant as to what Widomski’s testimony would be.

Appellant, in this Court, asserts that:

“In so holding, the Board violated Widomski’s Fifth Amendment privilege against self-incrimination, for in dictating that if Widomski took the stand he would waive his Fifth Amendment rights, the Board concurrently forced Widomski to waive his Fifth Amendment right to exclude from evidence an incriminating statement that he wished to expose as being involuntary.”

To bolster his argument, he cites us to Boulware v. Battaglia, 344 F. Supp. 889, 902 (D. Del. 1972) for the proposition that “the Fifth Amendment privilege against self-incrimination extends to persons in civil or administrative procedures is clearly established.” With that general statement we wholeheartedly agree. Yet, it is just as clearly established in Maryland that administrative bodies are not ordinarily bound by the strict rules of evidence of a law court. Hyson v. Montgomery County Council, 242 Md. 55, 70, 217 A. 2d 578, 587 (1966). In that connection, we stated in American Radio-Telephone Service, Inc. v. Public Service Commission, 33 Md. App. 423, 434-35, 365 A. 2d 314, 320 (1976), “[although administrative agencies are not bound by the technical common law rules of evidence, they must observe the basic rules of fairness as to the parties appearing before them.” See Dickinson-Tidewater, Inc. v. Supervisor of Assessments, 273 Md. 245, 253, 329 A. 2d 18, 24 (1974); Montgomery County v. National Capital Realty, 267 Md. 364, 376, 297 A. 2d 675, 681 (1972); Dal Maso v. Board of County Commissioners, 238 Md. 333, 337, 209 A. 2d 62, 64 (1965). Procedural due process in administrative law is recognized to be a matter of greater flexibility than that of strictly judicial proceedings. NLRB v.

. Prettyman, 117 F. 2d 786, 790 (6th Cir. 1941); Lacomastic Corp. v. Parker, 54 F. Supp. 138, 141 (D. Md., 1944). The concept of due process requires that we examine “the totality of the procedures afforded rather than the absence or presence of particularized factors.” Boulware v. Battaglia, 344 F. Supp. at 904.

We think that the mandate of Md. Ann. Code art. 27, § 730, was satisifed in the case at Bar. The police department notified Widomski of the charges and the hearing; kept a record of the hearing; afforded appellant ample opportunity to present both evidence and argument with respect to the issues involved; admitted probative evidence; allowed appellant’s counsel wide latitude in cross-examination of Departmental witnesses; and made extensive findings of fact in its report and recommendations to the Police Chief.

Appellant seeks to inject into administrative hearings the criminal law with respect to the admission of confessions. He cites us to a number of cases, all dealing with suppression hearings concerning the voluntariness of confessions. See e.g., Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L.Ed.2d 1247 (1968); Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L.Ed.2d 653 (1964); Bailey v. United States, 389 F. 2d 305 (D.C. Cir. 1967). Widomski, by his reliance on the criminal confession suppression cases, is in effect equating the instant case to a criminal trial. It is not. Nothing in section 730 requires, or suggests for that matter, that it is the equivalent of a criminal proceeding. Subsection (c) of section 730 does provide, “[t]he hearing Board conducting the hearing shall give effect to the rules of privilege recognized by law,” but that wording means that a person may not be compelled to testify against himself. Widomski was not so compelled. He was not called upon by the Department to testify in the case, nor was the fact that he did not testify used against him. Although his admission to Sgt. Huber was received in evidence, Widomski had an opportunity to testify and deny Huber’s statement relative to voluntariness but elected not to do so because the Board refused to permit Widomski’s testimony to be limited to the voluntariness vel non of the admission. We know of no rule of law that requires an administrative agency to adhere strictly to rules of criminal procedure. Had such a procedure been contemplated by the legislature, they would not have left the conduct of a hearing in the hands of laymen, even though they be trained law-enforcement officers.

We think due process of law, under either the Maryland or Federal Constitution, was not affronted by the Board’s declination of Widomski’s proposed “limited” testimony.

We adopt the reasoning of Chief Judge Wright of the U.S. District Court for the District of Delaware, as enunciated in Boulware v. Battaglia, supra:

“The. Court is of the opinion that absent some particular factor of such import as to deny to ... [appellant] an effective opportunity to participate in and defend ... [himself] in the hearings, the procedures utilized were sufficient to fulfill constitutional requirements.
... The Trial Board adhered to the ... [Statutory] Rules governing such hearings and afforded ... [appellant] an orderly opportunity to hear evidence against. [himself] and present a defense____The Federal Constitution does not command specific due process procedures, nor does it impose precise trial type requirements on state administrative disciplinary proceedings.” 344 F. Supp. at 905 (Emphasis supplied.)

Judge Haile did not err in affirming the action of the Chief of Police in dismissing Widomski from the Baltimore County Police Department.

Judgment affirmed.

Costs to be paid by appellant.

      . Decimus Junius Juvenal (A.D. c. 50-c. 130) Satires VI, 1. 347

      . Identified in the transcript as “Captain Willinski.”

      . Lieutenant Ferrell told the Board that according to the orders he received from a superior officer who was conducting the Dundalk investigation, Widomski “was not a suspect, don’t worry about his rights during the polygraph examination.”

      . The four (4) questions were:
      — “Do you know any more about Dundalk officers stealing than what you have told the Internal Affairs about?”
      — “Have you ever stolen anything else on the job that you have not told Internal Affairs about?”
      — “Did you know prior to this investigation that [five named suspects] were involved in criminal acts other than what you told Internal Affairs about?”
      — “Is fear of reprisal the only reason that you cannot tell the complete truth about this matter?”
      Prior to the examination, Widomski had informally admitted to Ferrell that he had not been completely truthful in prior interviews because of fear of reprisals.

      . It is clear from the record, that the Board, as well as counsel for the Police Department and the appellant, realized that the “interview” by Sgt. Huber was an interrogation and it was so treated.

      . Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418 (1973), this Court reversed a judgment because of the refusal of a trial judge to allow inquiry into a police lieutenant’s credibility. The inquiry was to have been limited to the filing of false reports, a matter upon which the police lieutenant was adjudged guilty following a departmental hearing.

      . The record is silent as to how counsel for Widomski actually learned that the Board had listened to all or other parts of the tape.

      . Laws 1977, ch. 366, amended subsection 728 (b) (3) as follows:
      “The law-enforcement officer under investigation shall be informed of the name, rank, and command of the officer in charge of the investigation, the interrogating officer, and all persons present during the interrogation. All questions directed to the officer under interrogation shall be asked by and through one interrogator during any one interrogating session consistent with the provisions of subsection (b)(6) of this section.”
      The amendment was not effective until July 1, 1977. It has no effect on this case.

      . Laws 1977, ch. 366, amended subsection 728 (b) (8). The second sentence, was deleted from the 1974 act and the following substituted therefor:
      “Upon completion of the investigation, and upon request of the law-enforcement officer under investigation or his counsel, a copy of the record of his interrogation shall be made available not less than ten days prior to any hearing.”

      . But see Powell v. Zuckert, 366 F. 2d 634 (D.C. Cir. 1966); Saylor v. United States. 374 F. 2d 894 (Ct. Cl. 1967); Rinderknecht v. Maricopa County Employees Merit Sys. 21 Ariz. App. 419, 520 P. 2d 332, vacated by reason of settlement 111 Ariz. 174, 526 P. 2d 713 11974); Finn’s Liquor Shop v. State Liquor Authority, 24 N.Y.2d 647, 249 N.E.2d 440 (1969).

      . See n. 6, supra.

      . We do know, however, that Lt. Ferrell had been ordered to give polygraph examinations to many of the officers on the suspect shift. Such an order did not necessarily embrace Widomski.


source: Caselaw Access Project

author: Wilner,

license: Public Domain

text:
    JOSEPH W. PARKS v. STATE OF MARYLAND
    [No. 639,
    September Term, 1978.]

      Decided February 7, 1979.

    The cause was submitted on briefs to Morton, Wilner and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, F. Ford

      Loker, Assistant Attorney General' Warren B. Duckett, State's Attorney for Anne Arundel County, and R. David Fordham, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Wilner,

J., delivered the opinion of the Court.

On or about May 27, 1976, Joseph W. Parks, appellant, decided to depart from his current residence and seek other quarters. The problem was that his current residence was the Maryland House of Correction, and his departure was deemed by the warden thereof to be premature. This- resulted in the filing of a detainer against appellant by the Maryland State Police charging him with the crime of escape. Md. Annot. Code art. 27, § 139 (a).

On August 26, 1976, having in the meanwhile been apprehended and returned to prison, appellant filed a Request for Disposition of Intrastate Detainer, seeking an early disposition of this detainer pursuant to Md. Annot. Code art. 27, § 616S (the Intrastate Detainer Act). A copy of this request was received by the court (and apparently as well by the State’s Attorney) on September 8, 1976.

Notwithstanding that the law (§ 616S) required that appellant be brought to trial within 120 days after receipt of the request, appellant was not in fact tried on the escape charge until January 10,1977 — some three or four days too late. But tried he was, in the Circuit Court for Anne Arundel County, where he was convicted and sentenced to a six-month term of imprisonment, consecutive to the sentence then being served.

We reversed that judgment, concluding, in an unreported per curiam Opinion, that, because the State failed to bring the escape charge to trial within the statutory period, or to obtain a valid continuance, the. court had “lost jurisdiction of the case and was powerless thereafter to entertain the matter.” Parks v. State, No. 75, Sept. Term, 1977, Opinion filed October 21, 1977.

Pursuant to this decision, the lower court, on February 24, 1978, dismissed the charge. Five weeks later, however, the Anne Arundel County Grand Jury returned an indictment against appellant, charging him with the very same escape that was the subject of the earlier proceeding. In response, appellant moved to dismiss the indictment on grounds of double jeopardy. His motion was denied, and, in advance of any further proceedings in the Circuit Court, he has filed this appeal. The sole issue before us is whether retrial of appellant upon this new indictment, after dismissal of the charge arising from the original detainer, would place him twice in jeopardy for the same offense.

The Intrastate Detainer Act was first enacted in Maryland in 1965, in the same session of the General Assembly that enacted the Interstate Agreement on Detainers; and on more than one occasion we have observed that the purpose and rationale of the two enactments are identical. See, for example, Barnes v. State, 20 Md. App. 262, aff’d 273 Md. 195 (1974). As originally enacted, the Intrastate Act applied only to prisoners serving a sentence in an institution operated by the State Department of Correction, thus excluding convicted prisoners incarcerated in the local jails or at Patuxent Institution. It set forth, in a somewhat confusing way, the requirement of notifying an eligible prisoner of untried indictments, informations, or complaints, and the right of the prisoner, within 30 days after such notice, to request trial on such charges within 120 days of the request. Subsection (c) of this original enactment stated:

“If action is not commenced on the matter for which request for disposition was made, within the time limitation set forth in subsection (a) above \j.e., 120 days after the request], the court shall no longer have jurisdiction thereof, and the untried indictment shall have no further force or effect; and in such case the court shall enter an order dismissing the untried indictment with prejudice.” (Emphasis supplied.)

This provision, mandating that the failure to comply with the specified time requirements would result in the dismissal of the untried indictment with prejudice, followed closely not only the virtually identical provision in the companion Interstate Agreement, but also those of both the original Council of State Governments proposal and the Uniform Act. The words “with prejudice”, when used in that context, have, of course, a well-established meaning in the law. They signify that the dismissal is final, that the controversy is concluded and cannot be reopened by a new or subsequent action. See Foundry Systems & Supply, Inc. v. Industry Dev. Corp., 185 S.E.2d 94 (Ga., 1971); Harris v. Moye's Estate, 202 S.W.2d 360 (Ark., 1947). A dismissal “with prejudice” has been held to be as conclusive of the rights of the parties as if the action had been prosecuted to a final adjudication on the merits adverse to the complainant, in this instance the State. See Gonzalez v. Gonzalez, 127 N.E.2d 673 (Ill., 1955); Fenton v. Thompson, 176 S.W.2d 456 (Mo., 1943); Mayflower Industries v. Thor Corp., 86 A. 2d 293 (N.J. Super., 1952); Schuster v. Northern Co., 257 P. 2d 249 (Mont., 1953).

There is nothing in the original enactment (ch. 628) or in its legislative history that would justify construing the phrase in any other way; indeed, to consider it as suggesting anything other than the absolute finality of the dismissal would be entirely' inconsistent with the whole purpose and thrust of the enactment. Thus, under the law as originally enacted by the General Assembly, the current indictment against appellant would have been a nullity, not because of double jeopardy, but because, by statute, the court would have had no jurisdiction to try it.

Unfortunately for appellant, however, the General Assembly changed the law — significantly changed it — in 1976.

The original enactment of the Maryland Intrastate Detainer law (§ 616S) was hardly a model of clarity. Indeed, in King v. State, 5 Md. App. 652, 658 (1969), this Court commented that “[wjhile the Act may be praised for its objective, it may be more damned for its provisions establishing the procedure to attain the objective. The provisions are vague, obscure and with one exception, lack sanctions to compel compliance with them.” The confusion emanating from the imprecise drafting of the statute continued to create problems for the Court and more so, no doubt, for the inmates intended to be its principal beneficiaries. The major problem for the inmates was that, while the 120-day period did not commence to run until the request was actually received by the court and the State’s Attorney, the requirements placed upon correctional officials to notify the inmate of outstanding detainers and to forward his request for prompt disposition on to the proper authorities were held to be directory, and no sanctions were provided in the event they failed to carry out their statutory duties. See, for example, King v. State, supra; Davis v. State, 24 Md. App. 567 (1975); State v. Barnes, 273 Md. 195 (1974).

In order to clarify the procedures with respect to notifying the prisoner of outstanding detainers and processing his request for a trial on those charges, to provide sanctions upon the failure of certain officials to comply with, the requirements of the law, and to extend the benefits of the law to inmates at Patuxent Institution, House Bill 1370 was introduced into the 1975 session of the General Assembly. This bill would have completely rewritten § 616S of art. 27, and placed clear and mandatory duties upon the Division of Correction and the warden or superintendent of the institution in which the inmate was confined.

In proposed new § 616S (c), House Bill 1370 provided that if a prisoner was not informed of an outstanding detainer and his right to request a final disposition of it, within one year, the court would lose jurisdiction and would be required to enter an order dismissing the untried charges with prejudice. This was the sanction that was missing under the then-current law, and it was taken, apparently, from section 1 (c) of the Uniform Act. See State v. Barnes, supra, 273 Md. 206, 207 (footnote 10). Proposed subsection (e) provided the same sanction for failing to bring the prisoner to trial within 120 days after receipt of his request — loss of jurisdiction and dismissal with prejudice — although, in that context, this represented no change from the existing law.

House Bill 1370 was not enacted; it received an unfavorable report from the House Judiciary Committee. The next year, however, virtually the same bill was introduced as House Bill 368. There were but two substantive differences between the two bills, one of them critical to appellant’s complaint. In both subsections (c) and (e), the last sentence was rewritten to require that the untried indictment be dismissed without prejudice. With but these changes from the bill submitted a year earlier and two amendments not relevant to this controversy that were made during the legislative process, House Bill 368 passed both houses of the General Assembly without a dissenting vote (see 1976 House Journal, p. 1767, Senate Journal, p. 2997) and was signed into law as Laws of Md., 1976, ch. 653. As so enacted, § 616S (e) now reads:

“If the untried indictment, information, warrant, or complaint, for which request for disposition is made, is not brought to trial within the time limitation set forth in subsection (b) of this section, the court no longer has jurisdiction, and the untried indictment, information, warrant, or complaint has no further force or effect. In that case, the court upon request of the prisoner or his counsel shall enter an order dismissing the untried indictment without prejudice.” (Emphasis supplied.)

Given the plain wording of this provision, much less its legislative history, the change made in the law is not only obvious, but patently deliberate. No attempt was made during the legislature’s consideration of House Bill 368 to restore the phrase “with prejudice”. In stark contrast, then, to the finality of the dismissal envisioned by and implicit from the preexisting law — “with prejudice” — and notwithstanding that this change, in the words of the Court of Appeals “would render the statute ineffective and defeat its plain object” (State v. Barnes, supra, at 212), the General Assembly has made clear its intent that such a dismissal for failure to comply with the requirements of the Act should serve only to terminate that particular action and not to preclude another. This is what is meant by the phrase “without prejudice.” See O’Keefe v. Irvington Co., 87 Md. 196 (1898); Block v. Baltimore, 149 Md. 39, 60 (1925); Rosenberg v. State, 164 Md. 473 (1933); Adams v. Bear, 349 P. 2d 184 (Ariz., 1960).

The question at issue is whether the “re-charging” of appellant by a new and independent indictment, though clearly permissible under the current statute, nevertheless is constitutionally impermissible because it would serve to place appellant twice in jeopardy for the same offense.

In Ball v. United States, 163 U. S. 662, 669 (1896), the Supreme Court observed of the double jeopardy clause of the Fifth Amendment that “[a]n acquittal before a court having no jurisdiction is, of course, like all proceedings in the case, absolutely void, and therefore no bar to subsequent indictment and trial in a court which has jurisdiction of the offense.” This maxim, which appears to have been dicta in that case, has nevertheless been referred to with approval by the Supreme Court on at least three subsequent occasions, and has ripened into a well-established rule of law in the various State and lower Federal courts, applying equally to convictions as well as acquittals. This Court specifically applied the rule in Tipton v. State, 8 Md. App. 91 (1969), basing its decision in large part upon an analogous conclusion of the Court of Appeals in Crawford v. State, 174 Md. 175 (1938).

There is, as pointed out by Judge Friendly in United States v. Sabella, supra, at 208, footnote 5, “some degree of unreality in a cláim that a convicted defendant who has been in jail has not been in jeopardy.” Indeed, it may be difficult for any defendant who has, in fact, been forced to undergo the actual rigors and uncertainties of a trial brought to determine whether his life, liberty, or property should be forfeited to accept that he has not been placed in jeopardy, whatever the verdict, because the court that tried him was without jurisdiction to do so. Yet, in the legal and constitutional sense, reality is not the test. Jebpardy refers not to the actual potential for harm (i.e., to the actual ability of the court to deprive the defendant of life, liberty, or property), but rather to the court’s theoretical power {i.e., its right) to do so. The rationale for concluding that jeopardy does not attach when the court is without jurisdiction is that “no valid and binding judgment could have beeq rendered by such court.” Commonwealth v. Roby, 12 Pick. 496 (Mass., 1832); Com. v. Lovett, 372 N.E.2d 782 (Mass., 1978).

Appellant attempts to escape from this rather well-established “exception” to the bar of double jeopardy by carving out an exception to the exception. Double jeopardy does apply, he says, where the first court originally had the requisite jurisdiction but then lost it. This, he urges, is different than the situation in Tipton and Crawford, where the first court never had the proper jurisdiction.

There may conceivably be instances in which this secondary exception would be a valid and viable one — where a person has, in fact, been placed in jeopardy in a proceeding commenced before a court possessing the requisite jurisdiction but the jurisdiction is lost before a judgment is actually rendered. But this is not such a case.

The bar of double jeopardy rests upon the assumption that there has, in fact, been an earlier jeopardy. As stated in State v. Shaw, 282 Md. 231, 233 (1978), “[i]t is axiomatic, therefore, that the prohibition is not applicable until jeopardy has first attached and a subsequent prosecution is pursued for the same offense.” The first inquiry, then, is whether initial jeopardy ever attached at a time when the court possessed jurisdiction to try the case and render a valid judgment.

Jeopardy attaches, in a non-jury trial, as appellant had in the earlier proceeding, when the court begins to hear evidence. See Serfass v. United States, 420 U. S. 377 (1975); Jourdan v. State, 275 Md. 495 (1975); Blondes v. State, 273 Md. 435 (1975). It is clear, however, from § 616S (e), that the Circuit Court had lost whatever jurisdiction it may originally have possessed well before the reception of any evidence. As soon as the 120th day passed, without a valid continuance having been granted — at that moment, in the words of the statute — “the court no longer has jurisdiction, and the untried indictment, information, warrant, or complaint has no further force or effect.” The judicial phase of the earlier proceeding was a nullity before it started. Jeopardy did not attach because, by the time it first could have attached, the court’s jurisdiction no longer existed. For that reason, appellant would not be placed twice in jeopardy by the prosecution of the instant proceeding.

Order denying motion to dismiss indictment affirmed; appellant to pay the costs.

      . We note specifically that appellant has not raised the question of whether he has been denied his constitutional right to a speedy trial, and we shall therefore not consider that issue.

      . These enactments have a rather extensive legislative history, which fully supports our observations as to their similarity of purpose. Their genesis may probably be traced back at least to 1948, when a Joint Committee on Detainers was formed, with representation from a variety of associations representing the law enforcement, correctional, and legal communities, to consider, on a national scale, the problem of dealing with outstanding detainers lodged against persons already incarcerated in prison'. The Council of State Governments served as a secretariat for this Committee. This Committee ultimately recommended a set of “guiding principles” regarding the disposition of such detainers, but did not attempt to draft-implementing legislation. These “principles” dealt with all types of outstanding detainers, whether emanating within the State or from other jurisdictions, but offered no specific procedures for disposing of them.
      In 1956, a reconstituted committee, working more directly under the auspices of the Council of State Governments, developed several more specific proposals which were, in turn, reviewed by a conference sponsored jointly by the American Correctional Association, the Council of State Governments, the National Probation and Parole Association, and the New York Joint Legislative Committee on Interstate Cooperation. This Conference, meeting in April, 1956, approved three specific proposals, drafted in the form of legislation, dealing with the disposition of detainers against incarcerated persons, two of which are relevant here. All three proposals were included in the Council of State Government’s Suggested State Legislation — Program for 1957. See pp. 74-86.
      The first of these proposals was termed the “Intrastate Detainer Statute.” As its name implies, this proposal dealt with the disposition of untried indictments, informations, and complaints arising within the State in which the prisoner was incarcerated; and it was said to be based upon then-current statutes in California and Oregon. The second proposal was an “Agreement on Detainers” which, the Council noted, “applies the same principles embodied in the intrastate act to the interstate field.” Id, at 78. The proposed Interstate Agreement .was included again in the Council’s Suggested State Legislation — Program for 1958.

      One of the participants in both the initial and the reconstituted Joint Committee was the National Conference of Commissioners on Uniform State Laws which, in 1958, adopted and recommended to the States a Uniform Mandatory Disposition of Detainers Act. This also dealt with the disposition of intrastate detainers, and was based on the current California and Oregon laws. See Handbook of the National Conference of Commissioners on Uniform State Laws (1958), pp. 86, 261-263. The proposed Uniform Act was included, but “without review or recommendation,” as part of the Council of State Government’s Suggested State Legislation —JProgram for1959. See pp. 167-169.
      Each of these proposals followed essentially the same format, requiring that a prisoner be notified of outstanding charges ágainst him, permitting him to file a request with the court and the prosecuting authority for the prompt disposition of those charges, and mandating that trial on them be held within a specified time period after receipt of such request. The various proposals differed more in drafting style than in substance.
      The Maryland General Assembly first entertained these proposals in its 1964 session as part of seven recommendations emanating initially from the Legislative Council Committee on Prison Administration, and ultimately from the Legislative Council itself. Two bills were sponsored by the President of the Senate on behalf of the Legislative Council. Senate Bill 5 would have adopted the Interstate Agreement which, the Council’s Prison Administration Committee noted, “was prepared and is sponsored by the Council of State Governments as a means to alleviate the problems in prison administration resulting from detainers outstanding against inmates of correctional institutions.” See Report of the Legislative Council Committee on Prison Administration, contained in the Legislative Council Report to the General Assembly of 1964, p. 359. Senate Bill 6 attempted to deal in somewhat like fashion with intrastate detainers, but, although it followed neither the 1957 proposal of the Council of State Governments nor the 1958-1959 version of the Uniform Act exactly, it was more like the former than the latter. Neither the Report of the Council’s Prison Administration Committee nor that of the Council itself mentions these proposals or sheds any light on the drafting of Senate Bill 6.
      Both Senate Bill 5 and Senate Bill 6 were passed in the 1964 session without dissenting vote (the third reading vote in the Senate was 29 to 0; the vote in the House of Delegates was 130 to 0 on Senate Bill 5 and 116 to O' on Senate Bill 6 — see 1964 Senate Journal, p. 113; House Journal, pp. 638, 733); however, because of “technical” and drafting deficiencies, both bills were vetoed by the Governor at the suggestion of the Attorney General. See Veto Messages published in Laws of Ma., 1964, pp. 474-478. Both measures, with appropriate amendments to resolve the Attorney General’s concerns, were subsequently introduced into the 1965 session as Senate Bills 361 and 362, respectively, and were enacted and signed into law as Laws of Md., ch. 627 and ch. 628. It is thus clear, from all of the relevant legislative history that these two statutes, were, in effect, companion measures designed to achieve the same result — the orderly and expeditious disposition of detainers lodged against prisoners.

      . Article IV (e) of the Interstate Agreement, as enacted by Laws of Md., 1965, ch. 627 (art. 27, § 616E (e)) provides:
      “If trial is not had on any indictment, information or complaint contemplated hereby prior to the prisoner’s being returned to the original place of imprisonment pursuant to Article V (e) hereof, such indictment, information or complaint shall not be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” (Emphasis supplied.)
      Section 3 of the Uniform Act, as adopted by the Commissioners in 1958, provides, in relevant part:
      “If, after such a request, the [indictment, information or complaint] is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried [indictment, information or complaint] be of any further force or effect, and the court shall dismiss it with prejudice.” (Emphasis supplied.)
      Section 2 of the Intrastate Detainer Act recommended by the Council of State Governments provided:
      “In the event that the action is not brought to trial within the period of time as herein provided, no court of this state shall any longer have jurisdiction thereof, nor shall the untried [indictment, information or complaint] be of any further force or effect, and the court shall enter an order dismissing the same with prejudice.” (Emphasis supplied.)

      . See Kepner v. United States, 195 U. S. 100, 129 (1904). Also, Grafton v. United States, 206 U. S. 333, 345 (1907), in which the Court, although not mentioning Ball by name, stated: “We assume as indisputable, on principle and authority, that before a person can be said to have been put in jeopardy of life or limb the court in which he was acquitted or convicted must have had jurisdiction to try him for the offense charged.” And Diaz v. United States, 223 U. S. 442, 449 (1912).

      . See, for example, State v. Ramsey, 237 S.E.2d 666 (Ga., 1977); Houston v. State, 556 S.W.2d 345 (Tex. Cr. App., 1977); Rogers v. State, 336 So. 2d 1233 (Fla. App., 1976); John v. State, 347 So. 2d 959 (Miss., 1977), rev’d on other grounds, 437 U. S. 634, 57 L.Ed.2d 489 (1978); State v. Nelson, 365 N.E.2d 1268 (Ohio, 1977); State v. Sefcheck, 157 N.W.2d 128 (Iowa, 1968); Hall v. McKenzie, 575 F. 2d 481 (4th Cir., 1978); Nottingham v. Zahradnick, 573 F. 2d 193 (4th Cir., 1978); Moore v. Foti, 546 F. 2d 67 (5th Cir., 1977); United States v. Sabella, 272 F. 2d 206 (2nd Cir., 1959). Also, State v. Morrow, 230 S.E.2d 182 (N.C., 1976); State v. Procter, 367 N.E.2d 908 (Ohio, 1977); Steingut v. Gold, 388 N.Y.S.2d 622 (1976); 21 Am.Jur.2d Criminal Law, § 171 (1965); 22 C.J.S. Criminal Law, § 244 (1961).

      . When Crawford was decided, in 1938, the prohibition against double jeopardy, though not of constitutional dimension in Maryland, was part of the State common law. See Moquin v. State, 216 Md. 524, 528 (1958); Bennett v. State, 229 Md. 208, 212 (1962).- Crawford was not decided upon the basis of double jeopardy — even the common law version — however, but rested “solely upon the doctrine of res judicata____” 174 Md. at 177. "Nevertheless, the similarity between the two doctrines (see State v. Coblentz, 169 Md. 159 (1935); Bennett v. State, supra, at 212; Cook v. State, 281 Md. 665, 668 (1978)) suffices to render Crawford an analogous, and therefore precedential, basis for our direct holding in Tipton.

      . Compare State v. Duffy, 151 N.W.2d 63 (Wis., 1967); State v. Stoeckle, 164 N.W.2d 303 (Wis., 1969); Logan v. State, 168 N.W.2d 171 (Wis., 1969), in which the Wisconsin court declined to apply double jeopardy where, in the first proceeding, the court had jurisdiction when trial commenced, but lost it prior to a final adjudication.


author: Lowe, J.,

text:
    CLARENCE COOPER A.K.A. Ronnie Purcell A.K.A. Ronnie Cooper v. STATE OF MARYLAND

      [No. 233,
    September Term, 1978.]

      Decided February 8, 1979.

    The cause was argued before Gilbert, C. J., and Moylan and Lowe, JJ.

      Howard Margulies, Assigned Public Defender, for appellant.

      Valerie A. Leonhart, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John S. Denholm, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

On March 28, 1977, a jury of the Criminal Court of Baltimore found appellant, Clarence Cooper, guilty of unlawfully conspiring to violate the controlled dangerous substances laws of Maryland with respect to the possession with intent to distribute heroin. On April 26, 1977, he was sentenced to 20 years imprisonment. He has raised two arguments here.

First, he contends that the trial court erred in denying his pretrial motion to suppress evidence seized in a search of his apartment because the affidavit supporting the warrant did not provide probable cause. Second, appellant argues under the Best Evidence Rule that the court erred in admitting into evidence a photocopy of a notebook page. We find both issues without merit and will affirm.

probable cause

In Henson v. State, 236 Md. 518, 521 (1964), the Court of Appeals stated:

“Probable cause, which is less than certainty or demonstration but more than suspicion or possibility, is to be determined by the judge or justice who issues the warrant, and if a prudent and cautious man would be justified from the facts presented to show its existence in believing that the offense had been or was being committed, the warrant properly may be issued.”

In the present case, the application for a warrant to search 11 Greenbury Court (appellant’s car, residence and persons found therein) was supported by a primary affidavit of a Maryland State Trooper qualified as an expert in the Narcotic Division. The affidavit incorporated by reference three prior affidavits which had been submitted in support of an electronic surveillance and two wiretap applications in the investigation of the same drug operation. The orders granting those three petitions were also incorporated into the primary affidavit.

Our independent review of all four affidavits reveals that the investigating officers involved in the wiretaps and electronic surveillance were also experts in the narcotic field. The informants used were qualified in the affidavits as reliable sources of information. Each informant had a prior “track” record of accuracy and dependability.

The information presented by the four affidavits, from which probable cause had to be drawn, shows that the head of the “Cooper” drug operation was William A. Cooper. Reliable sources noted that, as head of the network, he had at times directly distributed drugs from his home. On October 22,1975, William A. Cooper suffered a broken neck and back in a car accident which confined him to the hospital. He continued to deal from his hospital room, and endeavored to retain the reins of power within the organization. On December 19, 1975, the investigating officers were told “WILLIAM A. COOPER had a partner in his business known as RONNIE PURCELL aka RONNIE COOPER.” Ronnie Cooper (appellant) told a police informant that “he handles all of the heroin on the east side of the city from WILLIAM A. COOPER and that COOPER was still running the operation from his hospital room ... and that BOOTSIE (ANNA MAE JONES) [William A. Cooper’s mother] was doing most of the running since WILLIAM was laid up.”

On February 17, 1976, the two detectives on the investigation asked for the first wiretap order. Their affidavit stated that the Cooper operation was undergoing a change of command. Before William A. Cooper’s accident, the heroin was disbursed only by the command of William A. Cooper. The detectives stated that William A. Cooper was “losing control of his organization to his mother, ANNA MAE JONES aka' “BOOTSIE” and RONNIE COOPER aka RONNIE PURCELL aka CLARENCE GLEN COOPER.” The affidavit supports this statement with conversations recorded (during the electronic surveillance) between William A. Cooper and different members of the organization. Information from an informant also revealed that Ronnie Cooper had called a meeting of the entire family involved in the operation, and that they had decided to cut William A. Cooper out of the business. Appellant told the informant that any future problems or needs would have to go through him or through Anna Mae Jones.

The supporting affidavit before the Circuit Court for Baltimore County for a second wiretap order, made by the investigating Maryland State Trooper, stated: “RONNIE PURCELL alias RONNIE COOPER alias CLARENCE GLEN COOPER resides with his paramour, DENISE THORNTON — at Greenbury Court, Woodlawn, Baltimore County, Maryland.” It also stated “that since the raid (March 9, 1976) on her [Anna Mae Jones] apartment, RONNIE (PURCELL) and DENISE (THORNTON) have been keeping a close watch on the parking lot from the back of their apartment,” but that she (Anna Mae Jones) is “still conducting her routine business of trafficking Controlled Dangerous Substances.”

The primary supporting affidavit of the application for the search warrant details the circumstances leading up to that request. A delivery of heroin from New York was made on May 5, 1976, by a known courier for the operation from New York to Baltimore. The affiant and another State trooper observed appellant driving the courier and another passenger to the address of Anna Mae Jones. All three exited the vehicle and went to the car trunk. Appellant removed a plastic hanging clothes bag and a brown paper grocery bag which he handed to the courier. The courier then entered the Jones’ residence. Appellant and the other passenger drove directly to 11 Greenbury Court and parked the car. The officers observed appellant “exit the driver seat and open the trunk while looking around in a suspicious manner.” Appellant “took a small brown bag from the trunk and close[d] same.” He and the male passenger then entered appellant’s residence.

Judge H. Kemp MacDaniel (now of this Court) reviewed the foregoing facts in the application for the search and seizure warrant. He found that probable cause did exist to believe that the laws relating to the illegal manufacturing, distribution and possession with intent to distribute controlled dangerous substances, were being violated at the address in question. Md. Ann. Code art. 27, §§ 286-287 (1976 Repl. Vol.) (§ 286 amended 1978 Supp.).

At appellant’s pretrial suppression hearing, Judge Mary Arabian similarly concluded that Judge MacDaniel had adequate facts before him to determine that more than a mere “suspicion” existed that drugs or paraphernalia were at 11 Greenbury Court. We agree.

A drug pick up had just been completed, one stop was made at Anna Mae Jones’ before appellant proceeded to 11 Greenbury Court. Parcels were removed from the car at both points. The officers assigned to the case had watched the drug ring over a period of months. They knew the “routine” manner of operation had been in flux during the power shift to Anna Mae Jones and appellant. As appellant conceded at oral argument, since Anna Mae Jones’ home had been raided on March 9, 1976, and she was conscious of being watched, it was less likely that s|he would store the drugs at her residence.

While the appellant does not think that point added support to the probable cause issue, we disagree. It is another fact that could be weighed in determining that more than a mere suspicion existed that appellant might have controlled dangerous substances or paraphernalia in violation of sections 286 and 287 of article 27. The drugs had been brought from New York; they had to be at either one or both of the locations where stops were made. That there are two possibilities does not so divide the probability of either that one or the other would be exempted from the reach of a search warrant. See Andresen v. State, 24 Md. App. 128, 173-174 (1975), aff’d on other grounds, 427 U. S. 463 (1976).

Notwithstanding his concession that it was less likely that the drugs would be stored at Anna Mae Jones’, appellant asserted that probable cause to search appellant’s premises at 11 Greenbury Court was still lacking because none of the affidavits indicated that appellant was himself an addict. He argued that only if appellant was an addict would he be likely to keep heroin in his apartment or retain a portion of the drug from the recent pick up, because a high echelon drug pusher would presumably be too eminent to retain possession.

That argument is an obvious non sequitur. We refuse to hold as a matter of law that the more important a criminal the less probable that there will be evidence of crime upon his premises. Even “big crooks” make dumb mistakes. It is the evidence and observations that give rise to the probabilities, not the assumed intelligence of the accused or the magnitude of his complicity. Taking into consideration the value of small quantities of narcotics, it is not inconceivable that a distributor at the top of the pecking order might well be hard pressed to trust his equally dishonest underlings with high priced granular contraband from which small quantities could be “skimmed.”

Furthermore, as we already discussed, circumstances existed other than personal addiction or organizational stature, from which the judge could have inferred that appellant stored drugs or paraphernalia on his premises. The affiants of the four relevant affidavits were officers trained in the narcotics field. They had conducted a careful investigation over a period of several months. Given their lengthy observation of how the drug ring operated, the officers felt that the recent pick up, in which appellant participated, made it probable that controlled substances or paraphernalia were at 11 Greenbury Court. The Court of Appeals has frequently stated that the judge or justice who issues the warrant may, in making his determination, “give consideration to the special significance which objects, happenings and individuals may have conveyed to the trained, experienced and knowledgeable police officers who apply for the warrant.” Henson v. State, 236 Md. at 521. Judge MacDaniel was justified in giving “consideration to the special significance” of the officers’ experience, and in finding probable cause to issue the search warrant. Accordingly, we affirm the trial court’s denial of appellant’s pretrial motion to suppress the evidence seized pursuant to the search of 11 Greenbury Court.

best evidence or original documents rule

Appellant contends that the trial court erred in admitting into evidence the photocopy of a notebook page rather than the original page. The Best Evidence Rule states a preference for original documents, but does not, foreclose use of secondary evidence “after a proper foundation has been laid, showing good and sufficient reasons for the failure to produce the primary evidence.” Forrester v. State, 224 Md. 337, 349 (1961). The issue usually arises when the original document has been lost or destroyed. See Sewell v. State, 34 Md. App. 691, 694 (1977), cert. denied, 280 Md. 734 (1977).

We have not found a Maryland case dealing with the precise question now before us. But see Green v. State, 25 Md. App. 679, 687-689 (1975), cert. denied, 275 Md. 749 (1975). The original document here was neither lost nor destroyed; it had already been admitted into evidence in another trial. The document was part of the record in that case and would have to have been removed from another court file to be produced at appellant’s trial. In order to avoid a potential problem on an appeal of the first case, due to an omission in the record, the State decided to photocopy the original page for use in appellant’s case.

At trial the State presented this information to the judge to establish a foundation for admitting the secondary evidence. The judge ruled that the State’s reasons were sufficient to excuse production of the original. She did not abuse her discretion in so ruling. '

While appellant complained that he was not able to inspect the original document at the time of introduction, he did not attack the copy as differing from the original. The only prejudice to which he could point was that expected in any trial, i.e., that the evidence contained criminatory matter. He could discern no improper prejudice, but because it was persuasive of guilt, had its admission been in error, the error certainly was not harmless. Regrettably for appellant, it was not error.

At oral argument when asked how appellant was “prejudiced,” or how introduction of the original would have benefited appellant, his counsel admitted that he did not know. He posited the possibility that erasures might show up on the original and not on the copy, but admitted there was no evidence even of that. Appellant did not allege that the State had any ulterior purpose in seeking to introduce the copy rather than the original, see Anderson v. State, 9 Md. App. 532, 539 (1970), cert.

The historic purpose behind the original writing rule has diminished with the technologically accurate reproductions provided by carbon paper and photographic reproduction equipment. Both legibility and reliability are substantially assured by the new processes. McCormick's Law of Evidence § 236 (2d ed., E. Cleary ed. 1972). Copying by various photographic and other processes has become commonplace in today’s business world; so much so that a uniform act has been adopted in Maryland and 37 other states, whereunder regularly kept photographic copies of business and public records are admissible without accounting for the original. See Md. Cts. & Jud. Proc. Code Ann. § 10-102 (1974). This contemporary common sense approach has been incorporated into the Federal Business Records Act, 28 U.S.C.A. § 1732 (b), and into the Federal Rules of Evidence wherein photographic or chemical copies are admitted as originals unless a genuine question is raised as to authenticity, or it appears it would be otherwise unfair to admit the duplicate. Fed. R. Evid. 1001 (4), 1003. While we still hold, in the absence of a similar rule, that wherever practicable the original document should be used, the rigidity of the original writing rule should be relaxed when, as here, the original is necessary for another equally important judicial purpose (i.e., appellate review in another case), but is available for comparison if improprieties are suspected.

The trial judge in this case obviously balanced the potential for improper prejudice against the judicial inconvenience and the chance of loss of the original in passing it back and forth between records of cases pending in different courts. Cf. Green v. State, supra (typewritten statement of original tape recording). On the facts presented in this case we do not find that the trial judge abused her discretion in determining that a proper foundation had been laid for the admittance of the secondary evidence.

Judgment affirmed.

Costs to be paid by the appellant.

      . Appellant was known as Clarence Glen Cooper a.k.a. Ronnie Cooper a.k.a. Ronnie Purcell.

      . Poore v. State, 39 Md. App. 44 (1978), another appeal (among many) arising out of the raid of the Cooper drug operation, discusses the State’s investigative use of electronic surveillance and wiretaps.

      . “The treatment of copies under the rule requiring the production of the original document can only properly be understood when viewed in light of the technological history of copying itself. In its earliest stages, the rule appears to have developed against a background of copying performed by individuals of the Bob Cratchit sort, transcribing manually not always under the best of conditions. Errors under such circumstances were routinely to be expected. Only marginally greater reliability was to be found in the so-called letter-press. Here the original was written or typed in copying ink or with copying pencil. Presumably influenced bv the infirmities present in such modes of copying, the courts generally declined to accept subsequently created copies as equivalent to originals.” McCormick’s Law of Evidence § 236 Í2d ed., E. Cleary ed. 1972).