text:
    MONTGOMERY COUNTY, MARYLAND v. GEORGE MEANY et al.
    [No. 498,
    September Term, 1976.]

      Decided February 4, 1977.

    The cause was argued before Thompson, Lowe and Melvin, JJ.

      H. Christopher Malone, Assistant County Attorney for Montgomery County, with whom were Richard S. McKemon, County Attorney for Montgomery County, and Robert G. Tobin, Jr., Deputy County Attorney for Montgomery County, on the brief, for appellant.

      Michael T. Nalls and J. Willard Nalls, Jr., with whom were Nalls & Nalls on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The appellant, Montgomery County, appeals from an order entered by Judge Richard B. Latham, presiding in the Circuit Court for Montgomery County, affirming an order of the Maryland Tax Court, challenging the granting of an exemption from real property taxation to the appellees in the taxable year 1972.

The subject property consists of 47.15 acres, improved by nine buildings, located in the northwest quadrant of the intersection of Maryland Route 650 and Interstate 495 in Montgomery County. It was owned by the Xaverian Brothers (a Roman Catholic order) and had been used as a seminary by them. As a result of this it had been exempt from taxation.

At the end of 1971 the Xaverian Brothers entered into a contract with the AFL-CIO Labor Studies Center, Inc. for the sale of the subject property, contingent upon the purchaser being granted a special exception for the use as an educational institution. This exception was granted on January 11, 1972, subject to the conditions that the number of students would not exceed 250 and that no exterior changes would be made to the buildings. On March 1, 1972, George Meany, et al., trustees for the AFL-CIO Labor Studies Center, Inc. obtained title to the property. On March 8, 1972, a contract was entered into with Maryland Lawn and Landscaping Company to have a caretaker move on the premises and maintain it. A phone was installed. Furniture and equipment were moved on the premises for storage. The Center had previously operated a school in Washington, D.C., which it expected to move to the new location, and subsequently did.

On June 14,1972, the Supervisor of Assessments denied a petition for exemption from real property taxes for the 1972 taxable year claimed under Md. Code, Art. 81 § 9 (8) by the Studies Center. The reason for the denial was that the property was not being used as an educational institution. An appeal to the Appeal Tax Court was filed on June 29, 1972.

The Studies Center entered into a contract with the George Hyman Construction Company for interior demolition of the buildings on the property. This work commenced in November of 1972. On January 9, 1973, the Board of Appeals granted a special exception allowing for renovation and exterior changes to the existing buildings.

The Appeal Tax Court denied the property tax exemption on July 9, 1973, but lowered the assessment $312,200. An appeal was filed in the Maryland Tax Court. On January 17, 1974, Montgomery County’s petition to intervene was granted. That Court reversed the prior decision and granted the property tax exemption for the taxable year 1972-73.

Montgomery County appealed that decision directly to the Court of Appeals. By order dated September 10, 1975, the Court of Appeals transferred the case to the Circuit Court for Montgomery County because of that court’s jurisdiction over initial reviews of Tax Court’s decisions. The case reaches this Court from an affirmance of the exemption by the Circuit Court for Montgomery County.

I Standing of Intervenor

Initially, the appellees contend that the appellant, originally an intervenor, does not have the legal capacity to appeal the unfavorable tax court decision. We find that it does.

In Montgomery County v. Supervisor of Assessments, 275 Md. 58, 62-3, 337 A. 2d 679 (1975), The Court of Appeals stated:

“When the Tax Court permitted the County to intervene, its order made the County ‘a party ... with all rights incident thereto.’ As an intervenor, the County acquired rights afforded to original parties:
‘By the very definition of “intervention” the intervenor is a party to the action. After intervention he is as much a party to the action as the original parties, and to make his rights effectual he must necessarily have the same power as the original parties, subject to the authority of the court reasonably to control the proceedings in the case.’ 59 Am.Jur.2d Parties § 177 (1971).”

As an intervenor has all the rights as a party and a party has the right to appeal, Montgomery County has the right to appeal.

The appellees rely on Montgomery County v. One Park North Associates, 275 Md. 193, 338 A. 2d 892 (1975), in support of their contention that the appeal should be dismissed. In that case, however, the Court made perfectly clear its holding that Montgomery County had no right of appeal was based upon the county not being a party, nor an intervenor, until it filed an appeal to the Circuit Court. Montgomery County v. One Park North Associates, supra at 201.

II Exemption

Whether or not the appellees qualify for the educational exemption is governed by Md. Code, Art. 81, § 9 (8) (1969 Replacement Volume). That section states:

“(8) Educational and literary institutions. — Buildings, furniture, equipment and libraries owned and used exclusively by educational or literary institutions, no part of the net income of which inures to the benefit of any private shareholder or individual, and the ground not exceeding (outside of any city) one hundred acres in area, appurtenant thereto, and necessary for the respective uses thereof.”

There seems to be no Maryland case precisely on the issue of whether land on which buildings are being prepared for use meet the requirement of being actually used by the educational institution. Cases in other jurisdictions are in direct conflict over this question. As expressed in 54 A.L.R.Sd 9, 14 & 15 (1974) the rationale behind the two schools of thought is:

“[0]n the other hand, that an intention to make future use of property for exempt purposes may never be realized and the property may be sold or put to a nonexempt use and, even if realized, may be long deferred, the public deriving no benefit during this time from the property and such benefit being the reason for the grant of tax exemption; and, on the other hand, that very frequently it is not possible for all phases of a plan to confer a public benefit to be realized at once, that steps must be taken as they are feasible and as funds permit, that property may become available for acquisition before it is possible to make full use of it or property necessary for a planned use may become unavailable if not acquired in advance of its actual need, that institutions develop and expand and it is prudent to anticipate future needs, especially when acquisition costs in the future may greatly increase, and that the rendition of the desired public benefits by an institution is curtailed and expenditure of funds increased if it is unduly restricted in meeting its future needs. It appears reasonable that the closer future plans come to reality, the greater is the possibility that exemption will be allowed for property held for future use.”

In the case of Bullis School v. Appeal Tax Court, 207 Md. 272, 114 A. 2d 41 (1955), the Court of Appeals found that a farm purchased for the building of a new school in the indefinite future would not furnish grounds for the exemption. The produce from the farm was used to feed the students and the farm provided a home for the headmaster, but the Court held this of no consequence because these aspects were not necessary for the educational use of the school. It was held that the “authorities generally seem to take the view that the use must be a present one, or at least in immediate prospect.” Id. at 276.

We think that the recognition in Bullís School v. Appeal Tax Court, supra, that the word “use” in the statute encompassed a use in the “immediate prospect” is important. It is evident that the appellees were not required to be conducting classes on the determinative day of the taxable year. The test seems to be whether the institution is in the process of bona fide necessary preparation for its operations through the repair and improvement of the property. Hedgecroft v. Houston, 150 Tex. 654, 244 S.W.2d 632 (1951); Board of Assessment & Revision of Taxes v. Philadelphia Election Co., 308 A. 2d 627 (Pa. 1973). To put it another way, the test is whether the property is being used to its fullest extent for educational purposes under the circumstances of the given case.

In the case at bar the appellees purchased the property in March or late February. The evidence supports the finding that the appellees used due diligence in readying the property for its exempt use. Before the institution could perform its public service it had to remodel the property. The land was not simply being held for a future use, but active measures were taken to prepare for the use. Under these circumstances the Tax Court’s findings that the use was an immediate prospect and the property was therefore exempt were supported by substantial evidence and were not arbitrary, capricious or unreasonable. This is the test we must use in reviewing Tax Court decisions. Supervisor of Assessments of Carroll County v. Peter & John Radio Fellowship, Inc., 274 Md. 353, 335 A. 2d 93 (1975).

The appellant cites two areas in which it alleges the Tax Court and Circuit Court founded their decisions on impermissible considerations. It contends that the Tax Court considered statements that the renovation was necessary to conform to fire and health regulations, and the only evidence of this in the record are oral representations of such by attorney for the appellees. There are hearsay statements on the record concerning the building inspections and statements as far back as the opinion of the County Board of Appeals that the appellees would have to make changes in order to conform to these requirements. There was, therefore, evidence before the Tax Court supporting its finding that it was the building inspectors’ requirements which were halting progress in the construction. Technical rules of evidence are not applicable in cases before the Tax Court. Fairchild Hiller Corp. v. Supervisor of Assessments for Washington Co., 267 Md. 519, 298 A. 2d 148 (1973). We conclude that there has been no violation of the basic rules of fairness.

Appellant alleges the Circuit Court erred in considering that the subject property was previously exempt. As pointed out by Montgomery County the prior exemption was under a different statute for a different organization. While we do not deem this relevant, we note that this was not the sole basis for the court’s decision. Even if it had been, a trial court can be right for the wrong reason. Loyola Federal Savings and Loan Association v. Galanes, 33 Md. App. 559, 365 A. 2d 580 (1976).

In a sentence, the appellant, Montgomery County, seeks to inject an issue not presented below that the property in 1972 was titled in the name of trustees rather than the operating corporation, and thus was not exempt under the statute in question. We decline to consider the question under Md. Rule 1085, and also because there was no argument or citations of authorities in the brief on the question. See Sarkissian v. Sarkissian, 32 Md. App. 445, 360 A. 2d 453 (1976).

Judgment affirmed.

Appellant to pay the costs.

      . The actual date of settlement is not clear. There are portions of the record which support March 1,1972, March 7,1972, and February 22,1972.

      . See Shell Oil Co. v. Supervisor, 276 Md. 36, 343 A. 2d 521 (1975) requiring judicial review of a Tax Court decision by a trial court.

      . The equivalent portion of the 1975 Replacement Volume is Art. 81, § 9 (e).

      . Although the statute does not seem to require actual use for educational purposes a prior less restrictive statute was so construed by the Court of Appeals in Md. State Fair v. Supervisor, 225 Md. 574, 172 A. 2d 132 (1961). We will so construe the statute under consideration. For a subsequent change see Md. Code, Art. 81, § 9 (e).


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    ROBERT JUNIAN PIERCE, JR. and NORMAN KEMP JACKSON v. STATE OF MARYLAND
    [No. 504,
    September Term, 1976.]

      Decided February 4, 1977.

      The cause was argued before Thompson, Lowe and Melvin, JJ.

      Bruce R. Harrison for appellant Robert Junian Pierce, Jr.
    Submitted on brief by Michael S. Libowitz, Assigned Public Defender, for appellant Norman Kemp Jackson.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Daniel J. Cassidy, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Appellants Pierce and Jackson were tried together and convicted of robbery with a deadly weapon and numerous related crimes, by a jury in the Circuit Court for Prince George’s County. The testimony at trial indicated that the appellants and two other subjects attempted to rob the Hechinger’s Department Store in Marlow Heights, Maryland. Both appellants were identified at trial by eyewitnesses. We will refrain from detailing the facts and evidence at length because, for the most part, they are not material to these appeals.

Pierce

After raising three issues on appeal, appellant Pierce runs them together under a single argument. We will respond to the first two in kind. Upon review we find his contention that a pretrial photographic identification was impermissibly suggestive to be totally without merit. Nor are we convinced by his second contention that evidence had been suppressed by the prosecutor in violation of Brady v. Maryland, 373 U. S. 83. Our review found no Brady violation. To the contrary, we found Brady totally inapposite to the factual situation here.

Although appellant’s third assignment of error was also cursorily briefed, it is answered less simply. In light of the Court of Appeals’ ruling in Christensen v. State, 274 Md. 133, appellant contends that the trial judge committed reversible error when he failed to grant a mistrial after having overruled appellant’s objections to the prosecutor’s attempts to invoke the “missing witness rule” in closing argument. Appellant also contends that, at least, the judge should have, on his own motion, stricken the remarks “from the jury’s consideration”.

Pierce, who took the stand on his own behalf, testified that he was not at the scene of the crime. He contended that before, after and during the time of the commission of the crime, he was with his friend Nathaniel “Pee Wee” Young at locations removed from the crime scene. Young was among four persons whom the State contended had committed the crime. He was not on trial however, and he did not testify. The prosecutor emphasized Young’s absence and indicated that he was not produced by Pierce because he would not have supported Pierce’s alibi:

“Now, further in this case Mr. Pierce, whose really only alibi witness is an individual by the name of Nathaniel Young, also known as Pee Wee, this man if he was present in court could, in fact, show the whereabouts of Mr. Pierce on this particular date. The only people that testified to the whereabouts of Mr. Young on this date was our witnesses, who put him right in that store and right in that parking lot shooting that gun at all those people. Those witnesses picked him out along with Mr. Pierce on this particular day. Why didn’t they bring in Pee Wee, Nathaniel Young, to show his whereabouts? He never came in this courtroom, he never testified. The only one who testified to his whereabouts was the next door neighbor.
MR. HARRISON: I object to the comment of counsel.
THE COURT: Overruled. Proceed.
Now, in a criminal case it is a search for the truth. I through my prosecution of the case have tried to present to you all the witnesses that I felt would be beneficial in this case, in bringing out the truth.
I again ask you to ask yourselves where the alibi witnesses in this case are to establish the whereabouts of Mr. Jackson on this particular date, where are the people that back him up, and what he said? And for Mr. Pierce, where is the other individual that was with him, Nathaniel Young? Why aren’t these people in court to testify.
MR. HARRISON: I object again, Your Honor.
THE COURT: Overruled.”

The “missing witness rule”,

“ . .. even in criminal cases is that if a party has it peculiarly within his power to produce witnesses whose testimony would elucidate the transaction, the fact that he does not do it creates the presumption that the testimony, if produced, would be unfavorable.” Graves v. United States, 150 U. S. 118, 121.

A Court of Appeals’ writ of certiorari was directed to our opinion in Christensen v. State, 21 Md. App. 428, wherein we had held that rule to be applicable in criminal cases, and the writ was granted:

"... in order that we might consider Christensen’s contention that application of the ‘missing witness’ rule in criminal cases is ‘an unconstitutional deprivation of the defendant’s right to confrontation and cross-examination as guaranteed under the Sixth Amendment of the United States Constitution and Article 21 of the Declaration of Rights in the Maryland Constitution’ . .. .” Christensen, supra, 274 Md. at 134.

In light of the issue having been one of first impression in criminal cases in Maryland, this was a commendable issue for certiorari consideration. Regrettably, however, that question was never reached. The Court had an addendum upon its writ:

“and that ‘assuming the missing witness rule is not unconstitutional’ that ‘it [was not] applicable in the present case.’ ” Id. at 134.

We were reversed on the facts without having been enlightened on the law:

“We shall not address ourselves to the first contention because we conclude that the rule is not applicable to this case. For the same reason we shall be obliged to reverse the conviction.” Id. at 134.

Nor were we told whether our analysis of the cases, concluding in the determination that the missing witness rule is applicable in a criminal case, was correct or incorrect. The Court of Appeals relied upon, and adopted, as “the better and the majority rule” an exception quoted from 1 Wharton Criminal Evidence § 148:

“No inference arises if the person not called as a witness by the defendant is a codefendant or an accomplice not presently on trial, or has already been convicted of the same offense as that for which the defendant is being prosecuted.’ Id. at 251.” Id. at 139-140.

Although it would appear that the Wharton exception has become the Maryland rule, it would seem apparent that the adoption of the exception presupposes the recognition of the rule. But that is neither what the Court of Appeals held, nor is it necessary for us to decide here. Here, as in Christensen, it is the exception with which we are concerned, not the rule.

Although Judge Smith (who wrote for the Court of Appeals in Christensen) emphasized by repetition that the holding there was restricted to “the facts of [that] case”, the similarity of circumstances here casts the case in a beguilingly precedential light.

In Christensen the absence of the witness was argued extensively (by the State, as indicative of an unfavorable inference, and by the accused, who contended that the absence redounded as well against the State, Christensen v. State, 21 Md. App. at 435-436), but the Court of Appeals did not reach the issue of the propriety of arguing, to the jury, inferences that were available to them from the absence of a witness. Judge Smith clearly outlined the limited issue to which the Court spoke in that case:

“The critical question becomes whether the trial judge should or should not have granted the instruction requested by the defendant.” 274 Md. at 139.

Because the Court decided that the trial judge had erred in denying the requested instruction, we were reversed, but on that issue alone.

However, when Christensen was presented to this Court, one of the issues raised, and met, was whether the trial court had erred in allowing “ ‘the State’s Attorney to comment unfavorably upon the absence of a defense witness who ostensibly could have corroborated Appellant’s version of the facts.’ ” 21 Md. App. at 435. Although the remarks there went considerably beyond those made in the case we now consider, we noted in our Christensen that:

“The remarks were certainly not prejudicial and hardly ‘unfavorable’ ” Id. at 435.

The prosecutor’s remarks there, as those here,

“did little more than attempt to neutralize the possibility of a favorable inference.” 21 Md. App. at 437.

In this case appellant himself injected the issue by alibi testimony, indicating that he was with “Pee Wee” Young far removed from the crime scene. It is certainly legitimate argument for the prosecutor to ask, then, why the witness was not there to say so. In holding that such argument was not improper we pointed out that:

“Generally, broad latitude is given counsel in argument and we find nothing in this one prejudicial to Appellant.” Id. at 437.

As we have pointed out, our reversal in Christensen by the Court of Appeals was expressly narrowed to the failure of the trial judge to give the requested instruction, and no such instruction was requested by Pierce in this case. We further note that although the Court of Appeals was cognizant of the argument issue, 274 Md. at 138-139, it pointedly avoided reversing our holding on that issue. Nor did it criticize either our reasoning or our language in that regard and, we know from experience, that the Court of Appeals is not hesitant to point out the error of our ways when they do not agree with our reasoning or our result.

We have not changed our opinion that when an accused rests an alibi on an absent witness, it is not improper to argue the reasonableness of expecting the accused to justify or explain the absence. We hasten to add, however, that such argument is equally available against the State where the absent witness is said by the State to have been an accomplice.

In reading the Court of Appeals’ Christensen, appellant was apparently misled into applying it over-broadly to cover his argument complaint, because of the reasoning behind the Wharton exception which the Court adopted as the Maryland rule. Judge Smith said:

“The reason behind the rule is not difficult to divine. Defense counsel have been known to believe that the military’s advice to its personnel that in the event of capture one should disclose only name, rank, and serial number has its merits in criminal cases in that what one does not say cannot be used against him. Accordingly, counsel for Christensen probably was correct in believing that, if Paine were summoned to the witness stand by Christensen, Paine’s counsel might well advise him to invoke his constitutional right against self-incrimination, notwithstanding the fact that his testimony might serve to corroborate that of Christensen and that if he testified Paine might claim that the incriminating testimony of the prosecutrix was untrue. Under the facts of this case, a defendant might well be damaged if an accomplice or codefendant were called to the stand and then did not testify, claiming his privilege against self-incrimination.” 274 Md. at 140.

Such rationale would, at first blush, appear applicable to argue the rule’s inference, as well as failure to instruct the prohibitive exception, in an appropriate case. Yet there is a clear distinction between that which a trial judge must instruct a jury when requested and that which counsel may argue to it.

Providing that the court’s instruction may be given any time after the close of evidence, Md. Rule 756 e. expressly points out that:

“The giving of such instructions prior to the argument of counsel shall not preclude counsel from arguing to the contrary.” (emphasis added).

If it is not apparent from that rule that the Court of Appeals recognizes the right of counsel to argue legal presumptions or legitimacy of inferences which may be contrary to Maryland law, the Court of Appeals’ cases make it abundantly clear. They rest upon Maryland’s unique blessing or burden, that “the Jury shall be the Judges of Law, as well as facts”, Md. Const., Art. XV, § 5; from which it reasonably follows, that if the jury is the judge of the law, legal argument may be made to it. Schanker v. State, 208 Md. 15, 21; Wilkerson v. State, 171 Md. 287, 290; Samson v. State, 27 Md. App. 326. The right to argue conflicting interpretations of the law, or the application thereof in dubious factual situations, e.g., Schanker v. State, supra, has been held proper even in the face of instructions to the contrary, Wilson v. State, 239 Md. 245, 255-256, without regard to Md. Rule 756 e. Because we have so recently spoken upon the right of counsel to argue relevant law to the jury (as well as the limitations upon that right), Samson v. State, supra, suffice to say the right is well preserved, both by the Court of Appeals and by this Court, as long as Maryland retains its unique constitutional provision.

Since we consider the overruling of appellant’s objections to the prosecutor’s argument proper, it follows that the judge did not abuse his discretion in denying a mistrial. We carry coals to Newcastle by adding that he did not err by failing to strike the arguments, sua sponte. Absent a request for an instruction requesting the reverse missing witness rule adopted by Christensen, swpra, there was no error by the court below.

Jackson

Because appellant Jackson’s defense did not rely upon an alibi which the missing witness Young might have supported or controverted, Pierce’s complaint does not include appellant Jackson, who raised three of his own assignments of error:

“I. The Court erred by excluding a defense witness from testifying because of a violation of the Sequestration Rule.
II. The Court erred in not promptly and properly advising the jury as to the State’s unsubstantiated question about the Appellant’s prior record.
III. The Court erred in allowing the State to improperly argue to the jury.”

I

Violation of Sequestration

Appellant called Paula Jackson as a witness but admitted to the judge that she had been present in court in violation of sequestration, Md. Rule 753, which had been invoked at the request of appellant. A preliminary interrogation disclosed that she had been in the courtroom throughout the entire trial and had heard all of the testimony in the case. The court declined to permit her to testify, pointing out that:

“ ... the purpose of Rule 753, the sequestration rule, is to prevent one prospective witness from being taught by hearing antíther witness’ testimony. The application of the rule is to avoid any artificial harmony of testimony that would prevent the trier of the facts from truthfully weighing all the testimony, and it is also used to avoid any outright manufacturing of testimony.
The rule was exerted on behalf of the parties in this case. The witness has been in this courtroom since the inception of the trial. The motion to not permit the witness to testify by the State, after having been called by the defendant, is granted and the objection is sustained.”

In McKnight v. State, 33 Md. App. 280 (1976), we again pointed out that whether a witness’s violation of sequestration should preclude that witness from testifying is a matter for the sound discretion of the trial judge. We find no abuse.

Appellant preferred that her testimony would substantiate the testimony of appellant — which she had heard. Such edification is precisely that which sequestration was intended to guard against. After reviewing all of the relevant factors in the record, we hold that the court acted within the limits of its discretion.

II

Sua Sponte Instructions

During the course of cross-examining appellant Jackson, the prosecutor asked:

“Are you the same Norman Kemp Jackson convicted on November 4, 1973, of the charge of carrying a pistol without a license?”

A timely objection was sustained when it was pointed out (at the bench) that although convicted, appellant had not yet been sentenced. See Md. Code, Cts. Art., § 10-905. Appellant now complains because the court did not advise the jury immediately, “that the State did not mean to intimate that the appellant had been convicted of a crime.”

Appellant relies upon Woodell v. State, 2 Md. App. 433, 439, where we held that when cross-examining on prior convictions a prosecutor who receives a negative response should either produce authenticated evidence of the judgment of conviction or:

“If the State’s Attorney chooses not to offer appropriate evidence of the prior conviction, he should, under the dictates of Cook [v. State, 225 Md. 603], seek leave of court to explain to the jury that he disclaims any intimation from his question that the defendant had previously been convicted of such crime. Failure to do so may result in an appellate reversal of the conviction where the error cannot be deemed harmless, and the point is properly preserved for review on appeal.” Id. at 439.

But that is not the question before us. Appellant’s objection to the question was sustained. He received everything he asked for. Indeed, at the end of the case appellant was further benefited gratuitously by the judge’s instruction to the jury that the question be disregarded:

“During the course of the trial there was a question propounded by the State’s Attorney relative to a reference of prior criminal conduct on behalf of Mr. Jackson. You are to completely disregard that. I don’t wish to amplify that particular part of the trial, but I tell you just for information purposes only, that if a person has been heretofore convicted that evidence would not be substantive evidence in the case, it would merely go to your consideration and evaluation of the credibility of the defendant as a witness.”

Although we find Woodell inapposite, it is of some interest that we affirmed there, notwithstanding a flagrant violation of the principle espoused, because there was no preservation of the issue by objection, request for instruction or motion for mistrial. Here appellant’s objection was sustained. He did not then ask the trial judge to instruct the jury that no unfavorable inference could be drawn from the question, but he received such an instruction at the end of the trial. Furthermore, there was no motion for a mistrial. Consequently, as in Woodell, the matter is not properly before us for review. Md. Rule 1085.

Ill

Improper Argument

The final question raises an issue that gives us passing concern; however, we certainly find no prejudice sufficient to warrant a reversal.

During their argument to the jury both of the appellants’ counsels criticized the manner in which the State had conducted its investigation, the arrest, a pretrial photographic identification and the prosecution of the case. Counsel for appellant Pierce, Mr. Harrison, succinctly characterized Jackson’s counsel’s preceding summation:

“Mr. King gave us a good, very good, analysis, sloppy police work.”

While expressly hesitating to be critical generally of law enforcement, Mr. Harrison wandered into the respective fields of judicial actors:

“The police, the prosecution, the defense and the courts, or vice versa, play a particular role, but all of it is geared to lead to the same thing, for the protection and preservation of society and the rights of the inhabitants therein. We are not antagonists. We are adversaries, the State and myself, but we are not antagonists. We both believe in the same thing. One, the preservation of rights of citizens; and, two, the preservation and rights of the defendant. The Court is an impartial arbiter over both of them, and the police are to investigate a criminal occurrence so that the State can find the truth and prosecute it with vigor.”

Although these discussions strayed from the issues before the jury, the State decided that it would respond instead of complaining. It was this response which Jackson contends was highly prejudicial and requires reversal:

“Now, both defendants’ counsel have commented on the way the State has conducted the arrest, investigation, and the prosecution of this particular case. They have commented on the photographic identification. Ironically, I was going through my files before I came down here today and I picked up a case which speaks of law enforcement involving a criminal case, and also photographic identification, and that is the case of United States v. Wade [388 U. S. 218]. This is the case that sets forth what the police did in this case, the photographic identification through the groups of photographs.
Now, in that case Justice White, who is a member of the Supreme Court of the United States, said:
‘Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But, defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, —
MR. KING: [Jackson’s counsel] I would object to that. That is not rebuttal, reading that.
THE COURT: Overruled. Proceed.
MR. CASSIDY: [the prosecutor] but, absent a voluntary plea of guilty, we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present the evidence. Defense counsel need present nothing even if he knows what the truth is.’
That is what the Supreme Court said in regard to the roles of law enforcement officers and defense counsel in cases.
Mr. Harrison explained himself to be a Deus ex machina, which means God out of the sky, for his clients in this particular case.
MR. HARRISON: [Pierce’s counsel] Means God out of a machine.
MR. CASSIDY: I stand corrected.
In this particular case that is exactly what his client needs. His client has been described by numerous witnesses as participating in this particular armed robbery.
Now, he has talked about many things in his closing argument, not very much had anything to do with the facts. He talked about Moses coming down from the mountains, and he quoted the one commandment I forgot. ‘Thou shalt not. steal, thou shalt not kill’, are also important. They are important to the people of Prince George’s County that have to live in the county.”

The propriety of reading such matter to the jury is as questionable as is its relevance to the issue being tried. The reading of case law to a jury has been approved by the Court of Appeals, but the sanction carried the restriction that the law being read

“refer solely to relevant questions of law.” Brown v. State, 222 Md. 290, 302.

Admitting that this reading from a dissenting and concurring opinion of a Supreme Court Justice contained no law, but merely an expression of the writer’s view of the roles of court and law enforcement officers, the State submits that it was fair commentary in direct response to the attacks on the investigators and prosecutors, and that it applied also to the opening paragraphs of Mr. Harrison’s argument from which it appeared that, but for the force of gravity, he was in danger of ascending to Heaven like Elijah.

Despite the questionable value of such appeals by defense counsel, the doctrine of retaliation may explain the prosecutor’s response but it cannot justify it. Although we do not consider such irrelevant attempts at eloquence to be professional misconduct as such, counsel should move with trepidation. See Code of Professional Responsibility, Disciplinary Rule DR7-106 (C) (1). See also A.B.A. Standards Relating to the Prosecution Function, § 5.8. The passage read was not relevant to any issue before the jury. Even if characterized as a retaliatory response, the excerpt was improper argument because it belittled not only the offending adversary, but was so general that it encompassed Mr. King, Jackson’s attorney. While the latter’s argument was critical of the manner in which officials had handled this case, it was directly relevant to the issues before the court. Mr. King had not digressed from the issues to the extent that counsel for Pierce had. The remarks read by the prosecutor embraced in a demeaning light the entire profession, by suggesting in a public forum that a defense counsel’s sole objective is acquittal. State v. Thornton, 38 N. J. 380, 185 A. 2d 9, 19. It is equally improper to have utilized the imprimatur of absolute authority by quoting from “Justice White, who is a member of the Supreme Court of the United States,” to cloak the prosecutorial team with impartiality. To have done so might have added weight to the prosecutor’s influence and to the probative force of the evidence adduced. This could result in the juror’s consciously or unconsciously adopting the prosecutor’s view without applying their own independent judgment to the evidence. Thornton, supra. In exercising their discretion to permit reported cases to be read to the jury, trial judges should recognize that their discretion in such matters is one which courts ought seldom exercise, for the reason that such a practice would lead to confusion in trials, rather than enlightenment. Cf. Barrett v. Lohmuller Bldg. Co., 151 Md. 133, 139-140.

We also observe that Mr. Harrison’s opening remarks, while possibly appropriate in a theological setting, had little to justify them as relevant to the issues being tried. To some gullible jurors it may provide a touch of credibility to the argument of its exponent, but more likely jurors would feel demeaned by one who sought to persuade them by equating himself with the Almighty. While of questionable relevance in either event, it is irritatingly distracting and produces nothing upon which a factual circumstance should be decided. See DR7 — 106 (C) (1) supra; A.B.A. Standards Relating to the Defense Function § 7.8. While remaining sensitive to the broad scope permitted counsel in argument, see Wilhelm v. State, 272 Md. 404, trial judges should be vigilant gently to excise blatantly irrelevant attempts by counsel to beguile jurors. Had. the defense caqueterie here been averted, very likely the prosecutor would not have sought succor and retaliation in Justice White’s irrelevancies.

It should be apparent by now that we find neither Mr. Harrison’s arguments nor the prosecutor’s response to be paragons for embryonic attorneys to follow. But with regard to the issue raised, our concern is limited to whether the jury was actually misled or influenced in this case, to the prejudice of the accused, by the remarks of the prosecutor. See Wood v. State, 192 Md. 643, 652. We find it highly unlikely.

We too fall back on language of the Supreme Court to express our own opinion; however, the reasoning upon which we rely is relevant to the issue before us. The Court addressed prejudicial prosecutorial remarks offered in argument which it viewed in the light we viewed the remarks here:

“They were, we think, undignified and intemperate. They do not comport with the standards of propriety to be expected of the prosecutor. But it is quite another thing to say that these statements constituted prejudicial error. In the first place, it is hard for us to imagine that the minds of the jurors would be so influenced by such incidental statements during this long trial that they would not appraise the evidence objectively and dispassionately. In the second place, this was not a weak case.... Of course, appeals to passion and prejudice may so poison the minds of jurors even in a strong case that an accused may be deprived of a fair trial. But each case necessarily turns on its own facts. And where, as here, the record convinces us that these statements were minor aberrations in a prolonged trial and not cumulative evidence of a proceeding dominated by passion and prejudice, reversal would not promote the ends of justice.” United States v. Socony-Vacuum Oil Co., 310 U. S. 150, 239-240, 84 L. Ed. 1129, 1177.

Having applied the “applicable test for prejudice” adopted in Wilhelm, supra, 272 Md. at 416, from Gaither v. United States, 413 F. 2d 1061, and finding none, we will not reverse.

A second alleged prosecutorial error is without indicia of prejudice. Appellant complains that the prosecutor expounded upon a theory which went beyond the evidence. Our review does not so disclose. To the contrary, that which the prosecutor expressed after confessing prefatorily that “this is not evidence, this is my theory”, could readily have been inferred from the evidence before the jury. It is not improper to propound theories that could inferentially be supported by the evidence.

Judgments affirmed.

Costs to be paid by the appellants.

      . Appellant contends that there was conflict in testimony of the eyewitnesses and that the photographs used in the pretrial identification were manipulated. He neither supports this with argument nor does he indicate where in the record evidence indicative thereof may be found. “We cannot be expected to delve through the, record to unearth factual support favorable to appellant and then seek out law to sustain his position.” Van Meter v. State, 30 Md. App. 406, 408, cert. den. 5/25/76. Nevertheless, we did peruse the record and found the appellant’s contention to be a specious one.

      . Appellant complained that although the police took preliminary nitric acid swabs of his hands to determine if he had fired a pistol recently, they decided not to submit the tests to the laboratory for neutron activation analysis because of the circumstances relating to when the test was taken, the weather, and the perspiration on appellant’s hands.

      . The missing witness in this case, one Nathaniel Young, was admittedly an “accomplice not presently on trial”, as was Mr. Paine in Christensen. Mr. Paine’s complicity in the crime wa.s part of the State’s version of the case. This appears to be another limitation upon the applicability of Christensen. See 274 Md. at 140-141.

      . In Christensen, the “Appellant meticulously avoided direct reference to, or identification of, the obviously absent potential witness.” 21 Md. App. at 431.

      . “MR. HARRISON: Ladies and gentlemen of the jury. As Mr. Cassidy pointed out to you, and as His Honor pointed out, you have been one of the most attentive juries that I have had in my career, which spans some 22 years.
      You know the law, what the law really is, is a search for the truth, that is what it is all about, and ever since Moses came down from the mountaintop with the tablet, with the Ten Commandments, that is what we have been trying to do, find out what the truth is. And one of those Commandments was, ‘Thou shalt not bear false witness.’ And that is what has happened in this case.
      Now, if there are two things in my being that I will die for it is truth and beauty, and they are almost indistinguishable, because if beauty is the penultimate then truth is the ultimate, or vice versa, because in all which surrounds us, both animate and inanimate, all else is irrelevant.
      Now, how do we get to it? Well, we lawyers and judges attend law schools, the cherished halls of Howard University, Harvard, Georgetown, et cetera, and we are taught certain rules, and to the layman it may seem dry, it may sometimes seem boring, and sometimes we may want to catch a nap or two, in fact sometimes we lawyers and judges even nod off from time to time, but it is man’s attempt to do what Moses was commanded to do by the Lord, ‘Thou shalt not.’ ”

      . See, e.g.„ Anderson, Wharton’s Criminal Law and Procedure § 2083; 75 Am. Jur! 2d Trial § 233; 88 C.J.S. Trial § 194.

      . Any prejudice potential was further minimized by the court’s instruction that:
      “Opening statements of counsel and final arguments are not of themselves evidence. The only evidence for you to consider is what you have seen and heard and observed from the witnesses on the witness stand and the exhibits that have been permitted in evidence for your consideration.”


author: Powers, J.,

text:
    JOSEPH T. SHAVER et ux. v. LYNN RAYMOND DAVIS
    [No. 516,
    September Term, 1976.]

      Decided February 7, 1977.

    The cause was argued before Powers, Menchine and Moore, JJ.

      Thomas V. Friedman, with whom were Rosen, Esterson & Friedman on the brief, for appellants.

      E. Dale Adkins, III, with whom were Robert H. Bouse, Jr., and Anderson, Coe & King on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Trial of this suit of Joseph T. Shaver against Lynn Raymond Davis having resulted in a jury verdict in favor of the defendant, Shaver and his wife, who joined him in a loss of consortium claim, have appealed from the judgment entered on that verdict. Trial was held in the Circuit Court for Howard County in January, 1976, Judge George B. Rasin presiding.

We need to consider only the assertion by the appellants that the trial judge erred in his instruction to the jury on the law relating to automatic traffic signals. The factual basis for the instruction is virtually undisputed. At about 10:00 A.M. on 18 December 1973, Mr. Shaver was driving north on U. S. Route 1, a north-south dual highway in Howard County, approaching its intersection with Waterloo Road, also a dual highway, which runs generally east and west. The intersection is controlled by a traffic light. There was a stipulation describing the times and sequences of the various colors, but the details are not significant to the question in this case.

As Mr. Shaver approached the intersection the light was red. He stopped. When the light turned green he proceeded north into the intersection. Mr. Davis was driving east on Waterloo Road. Davis testified that as he approached the intersection the light was green, but turned to amber when he was 30 feet from the intersection. He said that the light was still amber when he entered the intersection, and he proceeded across. The two vehicles collided. A police officer testified that the Impact occurred at the intersection of the left eastbound lane of Waterloo Road and the right northbound lane of Route 1.

In his instructions on the law governing traffic controlled by lights, the judge read to the jury the applicable subsections of Code, Art. 66'A, § 11-202, relating to a green signal, a yellow signal, and a red signal. He explained the meaning of the statute relating to the yellow signal by saying:

“A motorist facing the yellow light is entitled to enter the intersection and having thus entered the intersection legally is entitled to proceed through regardless of a change in the traffic signals from yellow to red during the course of his passage through the intersection. He does not have to attempt to stop since he has the same rights as those of the motorist facing a green light and may continue to proceed through the intersection regardless of the change in the traffic signal from yellow to red during the course of his passage.”

The court went on to say:

“Therefore, if you find that the defendant Davis entered the intersection while faced with a yellow light he had the right-of-way and, therefore, your verdict should be for the defendant, if you find that the plaintiff proceeded into the intersection while faced, even though while faced with a green light, but further finding that the defendant entered the intersection while faced with a yellow light. This is a change in the law of this state as understood by motorists, lawyers, judges and others, going back for some years, because the previous law was that yellow meant caution, to proceed with caution, there’s been a change in the statute which permits now, one who enters an intersection on a yellow light to proceed through as if he had the green light. In other words, you are lawfully within an intersection if you enter on a yellow light. However, if that yellow light changes to red before you enter the intersection even though you saw it yellow before you entered the intersection then you do not have the right-of-way and you are not lawfully within the intersection. So the issue in this case with respect to liability is to determine the color of the light as it faced the defendant Davis as he entered the intersection. And, of course, the intersection in this case, his entering the intersection would be controlled by his passing the curbline of the western edge of Route 1. As he crossed the western boundary of Route 1 he would be entering that intersection.”

Further in the instructions, and with respect to Mr. Shaver, the court told the jury:

“In determining whether or not the plaintiff, Mr. Shaver, exercised reasonable care and caution before entering the intersection you are to consider whether or not he looked out for traffic lawfully proceeding within the intersection. If you find that the plaintiff did not see what he must have seen had he looked, you should assume that the plaintiff either imprudently did not look when it was his duty to look or that looking he saw and then adventured to make the crossing in the face of its obvious peril. Consequently, if you find that he did not look for the traffic proceeding within the intersection in a lawful manner, that is, the other traffic proceeding lawfully within the intersection, or looked but did not sec which would have been obvious to him, or looked and attempted to make the passage in the face of the obvious peril, and that such action caused or contributed to the happening of this occurrence then your verdict should be for the defendant Mr. Davis. But, obviously, if you find that the defendant was not lawfully within the intersection, that is, that he entered the intersection on a red light, then the defendant is guilty of negligence and there is no responsibility on the plaintiff at all to look or to see him if the defendant was not lawfully within the intersection. Of course, I should modify that by saying that if he did observe that Mr. Davis was unlawfully within the intersection and he could avoid the accident then, obviously, he must do that.
“But because one has the green light that does not mean that one can just barge through without observing the intersection at all, he has to act as a reasonably prudent, as a reasonable prudent person would act faced with a green light under the circumstances which you heard described in this case.”

Objections made by appellants’ counsel at the conclusion of the instructions were, we are satisfied, sufficient to preserve for appeal the issue of whether there was error in the instructions which explained to the jury the rights of a motorist who enters an intersection on a yellow light. The court made no changes in its instructions following the statements by counsel of their objections.

It is quite obvious that in giving his instructions Judge Rasin was guided by the opinion of this Court in Klarman v. Haraszti, 24 Md. App. 483, 332 A. 2d 291 (1975). In our opinion in that case, we said, at 484:

“We hold that a motorist facing the yellow light is entitled to enter the intersection and having thus entered the intersection legally is entitled to proceed through regardless of a change in the traffic signal from yellow to red during the course of his passage.”

With respect to the specific facts and record in the trial of that case, we said, at 490, that the trial court should have granted a requested instruction which said:

“If you find the plaintiff entered the intersection while the traffic light for him was yellow, then your verdict must be for the plaintiff as a matter of law for the proximate cause of the collision, then, would be the action of the defendant, making a left turn.”

For what we held to be error we reversed the judgment of the Superior Court of Baltimore City against the driver who claimed that he entered the intersection on the yellow light, and remanded the case for a new trial. In doing so we rejected his contention that the trial judge should have directed a verdict in his favor. We pointed out that there was conflicting evidence on the question of whether the appellant entered on a yellow light or on a red light, and that conflict presented an issue for the jury.

The Court of Appeals granted certiorari to this Court and heard the case on appeal. That Court agreed with our mandate reversing the judgment and remanding the case for a new trial, but held that our statement of the rule did not go far enough. In its opinion, Haraszti v. Klarman, 277 Md. 234, 352 A. 2d 833, filed 5 March 1976, the Court of Appeals, in an exhaustive opinion written by the late Judge O’Donnell, agreed that the 1971 amendment to the statute had, indeed, changed the law applying to a motorist who enters an intersection on a yellow light. That Court, summarizing, said at 252-253:

“Thus, to the extent that the rights of a motorist proceeding on a steady yellow signal may be equated with those of one proceeding on a green signal, each such motorist, although entitled lawfully to so proceed, must nonetheless exercise due care in both entering, and in transiting, an intersection.
“The fundamental distinction lies, as we see it, in the fact that a motorist, proceeding on a green signal is not obligated to anticipate that another driver facing a red signal will ignore it and unlawfully intrude into the intersection, Baltimore Transit Co. v. Putnam, 250 Md. 19, 23, 241 A. 2d 586, 588 (1968); Schwiegerath v. Berger, 237 Md. 68, 70, 205 A. 2d 290, 291 (1964); nor is he under any duty to anticipate that the green signal controlling his movement will turn to red, or that a motorist on an intersecting highway will, during his passage, receive a green signal to proceed. A motorist about to enter an intersection upon a yellow signal is forewarned that the signal controlling his travel is about to turn red and that vehicles on the intersecting thoroughfare are about to obtain a green signal authorizing them to lawfully proceed.”

The Court stated its holding at 253:

“We hold that even though a motorist, facing a steady yellow light, may ‘lawfully’ enter an intersection, he must nonetheless exercise due care when entering and traversing the intersection as does a motorist who enters on a green signal.”

The Court of Appeals pointed out that this Court had failed to engraft upon the rule, as we stated it, the requirement that the motorist’s entry into the intersection be made with due care. It commented, however, that we had inferentially recognized that requirement in our discussion of the evidence.

Appellee argues that the jury could have found that the accident was caused by Shaver's failure to use due care in entering the intersection, even with a green light. This could . he so, but we have no way of knowing the basis of the jury's verdict. If it could have resulted from erroneous instructions, we must reverse the judgment.

Appellee contends that the instructions were proper. He points to the instruction (given as applying to Shaver) that a motorist with a green light has a duty to use due care; then to the instruction that a motorist who enters an intersection on a yellow light is entitled to proceed as if he had a green light; and concludes by suggesting that the instructions applied the same duty of care to both.

We cannot assume that the jury engaged in the same exercise in roundabout logic, in the face of the court’s clear and unqualified instruction that

“* * * if you find that the defendant Davis entered the intersection while faced with a yellow light he had the right-of-way and, therefore, your verdict should be for the defendant * *

which was soon followed by the conclusion:

“So the issue in this case with respect to liability is to determine the color of the light as it faced the defendant Davis as he entered the intersection.”

The trial judge failed to engraft upon those statements of the rule, the requirement that Davis’s entry into the intersection be made with due care. In that failure he erred, as we did in Klarman v. Haraszti, supra. Because of the error, appellants are entitled to a new trial.

Judgment reversed.

Case remanded for a new trial.

Appellee to pay costs.


author: Menchine, J.,

text:
    HEAT EXCHANGERS, INC. v. MAP CONSTRUCTION CORPORATION
    [No. 519,
    September Term, 1976.]

      Decided February 7, 1977.

      The cause was argued before Powers, Menchine and Moore, JJ.

      Arthur C. Elgin, Jr., with whom were Jackson, Campbell & Parkinson on the brief, for appellant.

      Joel I. Hoffman, with whom were Kamerow & Kamerow, P.C. on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

Map Construction Corporation (Map) brought suit against Heat Exchangers, Inc. (Heat) and another in the Circuit Court for Montgomery County for alleged breach of contract. Heat filed a counterclaim against Map alleging breach of contract.

The original action and the counterclaim were tried together in a bench trial with judgment nisi and absolute entered in favor of Map against Heat for $31,640.48 in the original suit and judgment nisi and absolute entered in favor of Map for costs against Heat in the counterclaim.

The appeal by Heat raises in this Court the single following issue:

“Did the lower court err by failing to determine whether the failure of Heat Exchangers, Inc. to timely deliver was excused by ‘commercial impracticality’?”

Heat’s contention on appeal rests upon the provisions of the Annotated Code of Maryland CL § 2-615 that reads as follows:

“§ 2-615. Excuse by failure of presupposed conditions.
Except so far as a seller may have assumed a greater obligation and subject to the preceding section on substituted performance:
(a) Delay in delivery or nondelivery in whole or in part by a seller who complies with paragraphs (b) and (c) is not a breach of his duty under a contract for sale if performance as agreed has been made impracticable by the occurrence of a contingency the nonoccurrence of which was a basic assumption on which the contract was made or by compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it later proves to be invalid.
(b) Where the causes mentioned in paragraph (a) affect only a part of the seller’s capacity to perform, he must allocate production and deliveries among his customers but may at his option include regular customers not then under contract as well as his own requirements for further manufacture. He may so allocate in any manner which is fair and reasonable.
(c) The seller must notify the buyer seasonably that there will be delay or nondelivery and, when allocation is required under paragraph (b), of the estimated quota thus made available for the buyer.”

Map argues alternatively:

1. That the issue suggested on this appeal was not raised or decided below and is not before us under Rule 1085; and

2. That the evidence failed to establish excuse by failure of presupposed conditions under § 2-615.

Maryland Rule 1085

The record contains testimony indicating that appellant relied in part on the provisions of § 2-615, supra. Although the trial judge made no specific reference to that section in his oral opinion, he did make reference generally to the Uniform Commercial Code and we think his decision implies that he found that § 2-615 furnished no justification for Heat’s failure to perform. Under these circumstances, Maryland Rule 1085 is not applicable. Panamerican Co. v. Broun, 238 Md. 438, 447, 209 A. 2d 575, 579-80 (1965); Kent v. Mer. Safe Dep. & Tr. Co., 225 Md. 590, 593, 171 A. 2d 723, 725 (1961).

The Impact of § 2-615

This section of the Uniform Commercial Code has not been the subject of appellate interpretation in Maryland. The Official Comment upon the section begins as follows:

“Prior uniform statutory provision: None.
Purposes:
1. This section excuses a seller from timely delivery of goods contracted for, where his performance has become commercially impracticable because of unforeseen supervening circumstances not within the contemplation of the parties at the time of contracting.”

Certain facts are not in dispute and fairly may be summarized as follows:

In November, 1973, contract discussions took place between Airpac Systems, Inc. (Airpac), manufacturer’s representative for Heat, and Map. On April 4, 1974, after bids had been received by Map from Heat and another company, Map signed a purchase order for 398 custom designed air conditioning units and essential plumbing connections (hereinafter described as risers), to be assembled and installed by Pleat in a multi-story apartment building to be constructed by Map. The bid price of Heat was $199,500.00. In the latter part of April, 1974, Heat submitted drawings and specifications for the units and risers.

On May 7,1974, The Whalen Company (Whalen), that had been the unsuccessful second bidder, advised Map that the proposed drawings and specifications furnished by Heat indicated a possible infringement of a patent owned by Whalen. Heat thereafter gave Map a letter of indemnification against a suit for patent infringement. Nonetheless, Heat with the concurrence of Map, decided to change the original design of the units so that the risers connecting the units from floor to floor would be placed outside of rather than within the unit cabinets.

On June 4, 1974» Heat undertook to assemble and install the units as redesigned. Map received and accepted Heat’s undertaking on June 10, 1974. The acceptance document, prepared by Heat, bore the notation “Thank you for your order we will ship on or about Aug. 25, 1974.” On July 1, 1974, Map requested that risers and equipment for the first five floors be released for shipment as soon as possible with “the balance of the equipment for the anticipated delivery date of 25 August 1974.” No shipments were made.

On August 22,1974, Airpac wrote Map advising that Heat was requesting a price increase of $10,154.00. On June 18, 1974, Heat had informed Airpac (its representative) that such a price increase would be necessary. This suggested increase was not disclosed to Map, however, until August, apparently because of fear that the contract might be cancelled by Map.

On August 30,1974, Map by telephone agreed to the price increase but requested early delivery of the shipment. On September 3, 1974» Map formally approved and returned to Heat a document showing agreement by the parties to the price change. Heat had endorsed on that document a notation declaring that “riser section assemblies will precede equipment shipments and should leave the factory within the next week to ten days.” No shipments were made by Heat.

On September 6, 1974, Map sent a letter to Heat stating, inter alia, that “It is imperative that we get the first five floors of equipment by the end of this month.” Heat did not demur.

On September 10, 1974, Map, by telephone, repeated to Heat that delivery must occur before the end of September. On September 27th, Heat informed Map that the risers would be shipped “next week for sure.” No shipment was made.

Testimony offered by Map indicated that the failure of Heat to supply the equipment prevented orderly progress of various trades in the course of construction of the apartment building, causing Map to be faced with back charges.

On October 3, 1974, in the course of a telephone communication with a representative of Heat, Map was advised that the risers had not yet been shipped; that Heat would try to ship them the third week of October, but could not promise. Map thereupon “decided to seek another source.” Map contracted with Whalen on October 7,1974, at higher cost.

The requisites of proof before nondelivery may be excused under the provisions of § 2-615 were thus succinctly stated in Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., 508 F. 2d 283 (7th Cir. 1974):

“ ‘(1) a contingency must occur (2) performance must thereby be made “impracticable” and (3) the non-occurrence of the contingency must have been a basic assumption on which the contract was made.’ ” 508 F. 2d at 293.

We adopt that interpretation of § 2-615.

Appellant alleges that an intervening contingency prevented delivery of the goods by reason of:

(a) strikes;

(b) necessary price increases resulting from the supply shortage of component parts;

(c) the threat of a patent infringement suit; and

(d) inability to get necessary components from suppliers. The proof does not support the allegations.

(a) Strikes

Lloyd L. Ludkey, marketing and sales manager of Heat and the sole witness offered by it, testified as follows:

“There has been some testimony having to do with strikes of various factories. In my estimation the strikes caused a very small portion of the problems that we encountered at that time.”

We find nothing in the record showing or tending to show that strikes in any way provided an excuse for nondelivery.

(b) Price Increases

The only evidence relating to the necessity for a price increase was that the initial contract price must be increased by $10,154.00. Map had agreed to the price increase. Moreover, the record shows that Heat was aware of the necessity for such an increase on June 18,1974, but Map was not so informed until August 22, 1974. Here, too, we find nothing supporting a contention that price increases would justify nondelivery.

(c) The Threat of a Patent Infringement Suit

“Q There was ultimately no patent infringement suit or injunction filed, was there?
A There was not; not to my knowledge.
Q Who were the persons who reconciled that situation?
A At our factory, Engineering, Production and myself would have arrived at the decision to suggest to the customer that we in fact escape the possibility [of patent infringement] by not including the risers in the cabinets, and we would have secured permission, which we did, from Map Construction, either directly or through Air-Pac Systems.
Q Finally a reconciliation or settlement was accomplished?
A Yes. Again, I can’t pin it down, but I would say it would have to be in June. On July 1 we received from Air-Pac Systems the release.” (From testimony of Heat’s representative.)

Again, the evidence is wholly lacking in proof that threat of patent infringement would bring the contract within § 2-615.

(d) Inability of Heat to Obtain Component Parts from Suppliers

It is this contention alone to which we will apply the tests suggested in Neal-Cooper Grain Co. v. Texas Gulf Sulphur Co., supra.

The Contingency

The generality of Heat’s contention appears from the following excerpt from Ludkey’s testimony:

“The last half or the last two-thirds of 1974 in business in general and particular to the air conditioning industry, which is the one in which I was working, were extremely difficult. Components which normally required eight to ten weeks delivery went as high as 40 and in some instances 50 weeks. The basic and overall problem was caused by the demand from the market which many, many times exceeded the capability of any manufacturer to meet. This caused numerous shortages for numerous manufacturers. In our case and in the case of most of our competitors and/or other manufacturers, delays which were nearly impossible to combat.
“I know of an instance of one of five purchasing agents from one of the largest general contractors in the United States who at that time came to my office, and his sole purpose in being there was we yet needed to deliver two large air conditioning units for a building in Georgia, which was holding up construction. He didn’t come to our plant strictly — he came to our plant strictly to see me. That was not his first and only stop on the trip. He was out calling on a manufacturer late in delivering pumps for the project. He indicated he was one of five men in his department, and that day all five men were out doing similar things.
“When suppliers gave delivery dates at that time I would have to say it was rare that the delivery dates were kept. Many — some manufacturers — did not even give a delivery date.
“Another indication of that business decline at that time was rapidly escalating prices. There was testimony earlier having to do with the fact that we requested escalation of pricing on this project, which we did, and we also requested it on other projects. There were numerous manufacturers who didn’t have to request escalation because when they accepted orders during the last half of ’74, there was no price in the contract, other than the statement ‘price will be in effect at the time of shipment.’
“It was a time that I — with business conditions that I have never experienced before, and I doubt that anyone else has.”

The difficulty confronting acceptance of those generalities is that while they sound impressive in the abstract, they were shown but feebly, if at all, to apply to the subject contract.

We note the following specifics:

1. Heat knew by July 1, 1974, that Map had agreed to risers outside of, rather than within the cabinets, yet no order for cabinets was placed until August 10,1974.
2. No order by Heat for the risers required by the changed design was placed until August 30,1974.
3. Heat, by letter dated September 3,1974, promised delivery of fabricated risers “within a week to ten days” although material for fabrication was not then in their hands.
4. Heat had orders for similar risers from other purchasers in Map’s position at about the same time but offered no evidence as to whether or not those orders had been timely delivered to customers.
5. Heat had received orders for cabinets utilizing similar outside risers for projects in Las Vegas and in Michigan but offered no evidence as to whether or not those cabinets had been timely delivered to those customers.

Although it is doubtful indeed that the evidence is legally sufficient to establish the occurrence of a contingency within the meaning of § 2-615, we shall assume, without deciding, that there was a contingency and shall give consideration to the other essentials of proof required to trigger operation of § 2-615. The burden of such proof, of course, rests upon the party claiming excuse. Eastern Air Lines, Inc. v. Gulf Oil Corp., 415 F. Supp. 429, 438 (S.D. Fla. 1975).

Commercial Impracticability

The only component parts of the promised air conditioning units to which Heat made specific reference was to the risers and to the cabinets. With respect to both, the evidence is uncontradicted that Heat delayed orders for both for about two months. No explanation for that delay in placing the order for those components was made by Heat. There is not a scintilla of evidence that other component parts of the units were in short supply, beyond the broad generalities voiced by Ludkey.

Basic Assumption of Nonoccurrence

Circumstances existing at the contracting date and foreseeability play a part in determining whether a party should be relieved of his contract. Maple Farms, Inc. v. City School District, 352 N.Y.S.2d 784 (S. Ct. Spec. Term, Chemung County 1974). Mishara Const. Co. Inc. v. Transit-Mixed, Con. Corp., 310 N.E.2d 363 (Mass. 1974).

In Maple Farms, supra, applicability of § 2-615 was rejected despite proof of the certainty of severe loss to the seller. It had been shown that cost increases of 23% had occurred in the six month period immediately following the contract date — but the proof also disclosed that the contracting seller was aware of a 9.5% price increase in the year preceding that date. In those circumstances, the Court said at 789-90:

“Applying these rules to the facts here we find that the contingency causing the increase of the price of raw milk was not totally unexpected. The price from the low point in the year 1972 to the price on the date of the award of the contract in June 1973 had risen nearly 10% and any businessman should have been aware of the general inflation in this country during the previous years and of the chance of crop failures. . . . [The contracting seller] had knowledge that for many years the Department of Agriculture had established the price of raw milk and that that price varied. It nevertheless entered into this agreement with that knowledge. It did not provide in the contract any exculpatory clause to excuse it from performance in the event of a substantial rise in the price of raw milk. On these facts the risk of a substantial or abnormal increase in the price of raw milk can be allocated to the plaintiff.”

In Mishara, supra, Justice Reardon, for the Court, said at 367:

“The emphasis in contracts governed by the Uniform Commercial Code is on the commercial context in which the agreement was made. The question is, given the commercial circumstances in which the parties dealt: Was the contingency which developed one which the parties could reasonably be thought to have foreseen as a real possibility which could affect performance? Was it one of that variety of risks which the parties were tacitly assigning to the promisor by their failure to provide for it explicitly? If it were, performance will be required. If it could not be so considered, performance is excused. The contract cannot be reasonably thought to govern in these circumstances, and the parties are both thrown upon the resources of the open market without the benefit of their contract.”

Analogously, Heat acknowledged supply difficulties during the first half of 1974. Nonetheless, Heat not only failed to provide an exculpatory clause in the contract, but persistently and consistently assured Map that the latter’s requested delivery date would be met in timely fashion.

In sum, from the inception of the initial agreement of the parties and continuing through Map’s decision to obtain its air conditioning units from another supplier, Heat consistently had assured Map of an ability to deliver within the latter’s desired time limitations. In every instance the assurance proved chimerical.

Heat at no time advised Map that its nonperformance was occasioned by “failure of presupposed conditions.”

The following pertinent part of paragraph 8 of the Official Comment also bears importantly on this element of § 2-615:

“The provisions of this section are made subject to assumption of greater liability by agreement and such agreement is to be found not only in the expressed terms of the contract but in the circumstances surrounding the contracting, in trade usage and the like. Thus the exemptions of this section do not apply when the contingency in question is sufficiently foreshadowed at the time of contracting to be included among the business risks which are fairly to be regarded as part of the dickered terms, either consciously or as a matter of reasonable, commercial interpretation from the circumstances.”

We have no doubt that the evidence in the subject case tends to show that the supposed contingency could have been foreseen by the seller as a real possibility and would permit a conclusion to be reached that the risk of its occurrence tacitly was assigned to Heat by reason of the failure explicitly to provide against it in the contract.

We have reviewed this case upon both the law and the evidence in accordance with the mandate of Maryland Rule 1086. We shall affirm.

Judgments affirmed.

Costs to be paid by appellant.

      . Airpac Systems, Inc., a manufacturer’s representative of Heat. Airpac’s motion for summary judgment as to it had been granted by the court below. No appeal was taken from that judgment.

      . In argument in this Court, counsel for Heat conceded that there was legally sufficient evidence to show that Map was justified in contracting with another contractor (The Whalen Company) and agreed that Heat “could not come back and sue Map” for the alleged breach of the contract by the latter. This concession disposes of the appeal in Heat’s counterclaim and compels affirmance of the judgment entered therein.


author: Moylan, J.,

text:
    SCOTT SEWELL, the younger v. STATE OF MARYLAND
    [No. 525,
    September Term, 1976.]

      Decided February 7, 1977.

      The cause was submitted on briefs to Moylan, Menchine and Moore, JJ.
    Submitted by Stuart Jay Robinson, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Bruce C. Spizler, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Stephen Sacks, ;Assistant State’s Attorney for Baltimore City, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This appeal by Scott Sewell, Jr., following his conviction by a Baltimore City jury, presided over by Judge Albert L. Sklar, of five separate violations of the narcotics laws, involves an intriguing variation on an old theme — the excuse for non-production under the “Best Evidence” Rule.

Under that rule, sometimes referred to as the Original Document Rule, the best evidence of the contents of a writing is deemed to be the writing itself. Oral testimony or other secondary evidence of the terms of the. writing may not be offered as a substitute for the original document itself unless the proponent can demonstrate an adequate reason for the non-production of the original. Instructive in this regard is McCormick, Law of Evidence (1st ed., 1954), Ch. 23, “The Requirement of the Production of the Original Writing as the ‘Best Evidence,’ ” § 201, “Excuses for Non-production of the Original Writing — (a) Loss or Destruction,” p. 413:

“The professed purpose of the production of documents rule being to secure, not the writing at all hazards, but the best obtainable evidence of its contents, if the document cannot as a practical matter be produced, because of its loss or destruction, the production of the original is excused and other evidence of its contents is received....
Loss or destruction may sometimes be provable by direct evidence but more often the only available method is circumstantial, usually by proof of search for the document and inability to secure it.”

The “document” which could not be produced at the trial before Judge Sklar was a 2" x 4" piece of paper, seized from the appellant’s premises during the execution of a search and seizure warrant, which paper gave measurements for the packaging of illicit drugs for street sales. It recited the number of grams which equal one “bag,” and the quantity and quality of drugs that make what is known in the trade as a “Baltimore quarter” and a “New York quarter.” Because at the trial before Judge Sklar the State sought to utilize the oral testimony of Officer Jennings to establish the contents of this writing, it became necessary for the State to explain the non-production of the original document. The following evidence was offered in that regard:

(1) The appellant had gone to trial initially on these charges before a jury, presided over by Judge John R. Hargrove, on September 29, 1975. On October 1, 1975, the third day of that first trial, a mistrial was declared when it was brought to the attention of Judge Hargrove that the appellant had, in the presence of the jury, eaten a piece of the evidence. Both Officer Jennings and the assistant prosecutor, Nelson Stewart, noticed that the piece of paper now in issue was missing. Officer Jennings had observed the appellant looking at the piece of paper. When Officer Jennings searched the appellant’s books and papers at the trial table, the appellant, after being advised as to what was missing, exclaimed, “Oh, that piece of paper, I ate it."

(2) Two of the jurors at the first trial observed the appellant look at a piece of paper in the State’s files “a couple of times” and then saw him slide it between “his papers.” The jurors sent a note to Judge Hargrove, as a result of which the mistrial was declared.

The above evidence was initially proffered to the court out of the presence of the jury. The appellant’s attorney, after initially objecting to the secondary evidence, withdrew his objection to the secondary evidence. He later objected, however, “to the entire procedure.” Judge Sklar permitted the State to offer the testimony as to the theft and destruction of the document by the appellant for two distinct and independent purposes:

(1) To explain the non-production of the original, and

(2) As evidence of the appellant’s consciousness of guilt.

When the evidence was produced, the appellant moved for a mistrial. The motion was denied and that denial is the basis for his first contention.

We hold that Judge Sklar was correct in his ruling for either of two reasons. It is clear that before secondary evidence is admissible, it must be shown that the original was lost or destroyed. Barranco v. Kostens, 189 Md. 94, 54 A. 2d 326; Leaman v. League Lumber Company, 239 Md. 258, 211 A. 2d 296; Anderson v.. State, 9 Md. App. 532, 538-539, 267 A. 2d 296; Wentworth v. State, 29 Md. App. 110, 122, 349 A. 2d 421. As the Court of Appeals pointed out in Forrester v. State, 224 Md. 337, 349, 167 A. 2d 878:

“The best évidence of which the case is capable must be produced, and secondary, or inferior, evidence is only admissible after a proper foundation has been laid, showing good and sufficient reasons for the failure to produce the primary evidence.” (citations omitted) (emphasis supplied).

We hold that the evidence was also admissible substantively to show the appellant’s “consciousness of guilt.” As was noted by Dean Wigmore in 1 Wigmore on Evidence (3rd ed., 1940), § 173:

“The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic. The innocent man is without it; a guilty man usually has it. Its evidential value has never been doubted. The inference from consciousness of guilt to ‘guilty’ is always available in evidence. It is a most powerful one.. . .” (emphasis supplied)

Various modes of conduct have been held to be tacit admissions or evidence of the consciousness of guilt. Among them are flight from justice, including resistance or concealment, Tasco v. State, 223 Md. 503, 165 A. 2d 456; Clay v. State, 211 Md. 577, 128 A. 2d 634; the giving of false statements, Burko v. State, 19 Md. App. 645, 313 A. 2d 864; attempts by the accused to prevent a witness from testifying, State v. Hicks, 535 S.W.2d 308 (Mo. App. 1976); and the refusal to provide an exemplar for comparison purposes, United States v. Franks, 511 F. 2d 25 (6th Cir. 1975).

The destruction of evidence by the accused has always been recognized as indicative of “consciousness of guilt.” Scarborough v. State, 3 Md. App. 208, 217, 238 A. 2d 297.

Under the circumstances, the questioned testimony was clearly admissible and the motion for a mistrial was properly denied.

The appellant raises a second contention, questioning the propriety of the judge’s instructions on the subject of both flight and the destruction of evidence as indications of the “consciousness of guilt.” The instruction was, in pertinent part:

“There has been testimony here, of course, that at the time of the raid by the officers that the defendant left through a window from the third floor onto, I believe, the roof of the second floor. You may regard that as flight or an attempt to flee. If you regard that action as flight, flight alone is not controlling as to the guilt of the defendant, but it is a factor that may be considered by you in determining guilt as tending to show intent or consciousness of guilt.
Similarly, you have heard the testimony in this case that at a prior trial the defendant is alleged to have taken the two by four, or three by four or five inch piece of paper allegedly containing figures and other writing on it. That, of course, is denied by the defendant. If you find that it did not occur, then, of course, it should not carry any weight in reaching your verdict. If you find, however, that it did occur, then that alone is also not controlling, but it is also a factor that may be considered by you in determining guilt as tending to show intent or consciousness of guilt. That is the only area in which either flight or that activity, if you find that action did occur, that’s up to you to determine whether you find it occurred or whether you find it didn’t occur, but if you find it did occur, then it is only to be considered by you in that limited area.”

In view of our discussion above, it follows ineluctably that the instruction was perfectly correct. See also Harney v. United States, 306 F. 2d 523 (1st Cir. 1962), cert. den. sub nom. Lawton v. United States, 371 U. S. 911; United States v. Gottfried, 165 F. 2d 360 (2nd Cir. 1948), cert. den. 333 U. S. 860; Robinson v. State, 180 So. 2d 282 (Ala. App. 1965); People v. Weiss, 327 P. 2d 527 (Cal. 1958); People v. Kendall, 244 P. 2d 418 (Cal. App. 1952), cert. den. 344 U. S. 880; People v. Fiorito, 108 N.E.2d 455 (Ill. 1952); State v. Broadhurst, 196 P. 2d 407 (Or. 1948), cert. den. 337 U. S. 906; LaPrade v. Commonwealth, 61 S.E.2d 313 (Va. 1950).

The appellant’s three remaining contentions need not detain us long. In one of these, he claims that he was denied his constitutional right to a speedy trial. Since, to be sure, a period of some thirteen months elapsed between his arrest on December 28, 1974, and his ultimate trial on February 2, 1976, the delay is of constitutional dimension so as to necessitate an analysis under the four-factored “balancing test” of Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972). The first of these factors, the length of delay, is significant standing alone. When we go on to look at the second factor — the reason for the delay — we perceive the fault to have been almost entirely that of the appellant himself. Early in the game, one month was lost between January and February, 1975, when the appellant requested a postponement of his preliminary hearing in order to retain private counsel. Counsel was not retained at that time. On June 12, 1975, the appearance of Earl Carey, Esq., was filed for the appellant. During July, 1975, the appellant filed a motion for discovery and inspection and the State answered that motion. In August, 1975, the appearance of Earl Carey, Esq., was struck and the appearance of Barry Frame, Esq., was substituted. The appellant’s trial began on September 29, 1975, some nine months after his arrest. As of that time, the appellant had never requested a speedy trial or filed any motion claiming a denial thereof. The first trial aborted on October 1, 1975, because the appellant ate the evidence. The trial was rescheduled for November 17, 1975, but was postponed at the request of the appellant. The trial was then again rescheduled for December 19, 1975, but was again ¡postponed at the request of the appellant. The appellant filed his motion to dismiss the indictment for a lack of a speedy trial on December 29, 1975. A hearing was held on that motion on January 14,1976, and it was denied. The trial was held on February 2, 1976. In terms of fault, the appellant has no one but himself to blame for whatever delay he thinks he suffered.

In terms of the “demand-waiver” factor, the appellant took no action with respect to a speedy trial until he moved to dismiss the indictment on December 29, 1975. Although his inaction does not in and of itself amount to a waiver of his constitutional right, the failure to assert the right “is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right.” Barker v. Wingo, supra, 407 U. S. at 531-532. As Barker went on to point out, the “failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial.” Ibid. We also note that there was no prejudice to the defense as such, since the only defense mounted was a strictly legal attack upon the adequacy of the probable cause to support the search and seizure warrant. In conclusion, balancing the four factors, we see no remote denial of the Sixth Amendment right to a speedy trial.

The appellant also attacks the sufficiency of the probable cause in the application for the search.and seizure warrant. A significant part of the probable cause came from the mouth of a police informant. Applying to that informant and to his information the “two-pronged test” of Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964), and Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969), we note that there is no attack on the “basis of knowledge” prong. The attack is rather upon the veracity prong. In this regard, the affidavit in support of the warrant states:

“.. . [The informant] is known to your affiant and is considered to be reliable due to the fact that this informant has supplied information to members of the C.I.D. Narcotic Unit during the past three (3) years that has led to the arrest of (16) sixteen individuals for various violations of the Narcotic Laws of Maryland.”

We have no difficulty in concluding that this allegation is sufficient to satisfy the veracity test. State v. Kraft, 269 Md. 583, 307 A. 2d 683; Stanley v. State, 19 Md. App. 507, 313 A. 2d 847. The veracity was further demonstrated by a detailed recitation of a “controlled buy” by the informant on the date of the appellant’s arrest. Hignut v. State, 17 Md. App. 399, 303 A. 2d 173.

The final contention is that the appellant was not present during a stage of the trial. He is referring to an in-chambers conference on the State’s motion in limine requesting that the identity of the informant not be disclosed. No testimony was taken in this in-chambers conference and it was exclusively a discussion of law. It was not a critical stage of the trial so as to require the presence of the appellant. Redman v. State, 26 Md. App. 241, 337 A. 2d 441. See also Brown v. State, 225 Md. 349, 170 A. 2d 300; Brown v. State, 272 Md. 450, 325 A. 2d 557, and State v. Tumminello, 16 Md. App. 421, 298 A. 2d 202.

Judgments affirmed; costs to be paid by appellant.