text:
    ALVALONZIE GRAHAM v. STATE OF MARYLAND
    [Nos. 319 and 320,
    September Term, 1980.]

      Decided November 14, 1980.

    The cause was argued before Wilner, Couch and Weant, JJ.

      Gary W. Christopher, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Martha Weisheit, Assistant Public Defender, on the brief, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and John D. Duncan, Jr., Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant first came to the attention of the law, in terms of these cases, on the evening of September 12,1979. Officer Thomas Gallogly, of the District of Columbia police force, observed a moped, upon which appellant was a passenger, cruising along the streets in the District in violation of a number of traffic laws. The moped was speeding; it failed to stop at one or more red lights; it had no lights on; and it did not display the license tags required in the District. Officer Gallogly stopped the vehicle.

Based upon what Gallogly learned then, and later, appellant ended up being charged, in separate indictments, with (1) statutory daytime housebreaking, theft of money, and theft of a check (No. 23062), and (2) theft of the moped (No. 23465). He was subsequently convicted of the theft of the check under No. 23062, and theft of the moped under No. 23465, and has appealed. For convenience, and because both appeals arise, in part, from the same underlying facts, we shall deal with them both in this one Opinion.

When Officer Gallogly stopped the moped, he asked the driver for his license and registration. The driver indicated that the moped belonged to appellant, who advised Gallogly that he had left the papers at his home but could not retrieve them because he did not have keys to the house. Appellant told Officer Gallogly that the moped was registered with the Department of Motor Vehicles and that the license tags had fallen off. Additionally, he told the officer that he had purchased the moped in the 2100 or 2200 block of Bladensburg Road for $395 plus $25 tax.

By this time, Officer Gallogly was highly suspicious. Though familiar with the area, he could not recall a moped dealership in either of the blocks mentioned by appellant, and the District’s 8% sales tax on new vehicles would require over $30, not $25, in taxes. His observation of the bike also led him to suspect that it had been "hot-wired.”

In an attempt to check appellant’s story, Officer Gallogly ran appellant’s name through the police computer arid was advised that a bench warrant, arising from an unrelated traffic offense, was outstanding against him. Appellant was thereupon placed under arrest by virtue of the extant warrant. Still trying to determine if the moped was stolen, Officer Gallogly located and made note of the serial number on the frame of the vehicle and had it checked. There was no vehicle with that number reported as registered with the District Motor Vehicle Department, but neither had the bike been reported stolen. Appellant and his moped were taken to the police station.

At the time of his arrest, appellant had in his possession a blue backpack, which he claimed belonged to him. When appellant and Gallogly reached the station, appellant, about to be placed in a cell pending pretrial release arrangements, was relieved of the backpack. The contents were inventoried in the normal course of police business, and appellant was told that he could retrieve the bag and its contents upon his release.

The next morning, Officer Gallogly, by phoning several moped dealerships in the area, ascertained that the vehicle in question had been sold to a Mr. Quigley several weeks earlier. The officer then contacted Mr. Quigley, who said that the vehicle had been stolen from his porch two evenings earlier, along with a blue backpack with a white pine tree stenciled on the back. Quigley also described the contents of the backpack when it was taken. Quigley’s description matched the backpack, and some of its contents, taken from appellant the previous evening. Gallogly immediately called the desk sergeant’s office and asked to be advised if appellant came to claim the moped or the backpack. The response was that appellant was there at that time. Officer Gallogly went to the lobby and placed appellant under arrest for stealing the moped. He took appellant inside the security area of the station where he removed the backpack from appellant’s possession.

In Officer Gallogly’s office, appellant was informed of his "Miranda’’rights and, upon inquiry, again asserted that the backpack and its contents were his. Officer Gallogly dumped out the contents of the pack and saw a check signed by one Linda Laux. When asked about the check, appellant stated that Ms. Laux was "some chick I know in Chevy Chase.” Officer Gallogly called Ms. Laux, who informed him that she did not know appellant, but that her home had been broken into a few days earlier, and a check had been taken from a checkbook in her purse.

The two indictments followed.

Appellant appeals his conviction on No. 23465 (theft of the moped) on the ground that, at the time of the initial stop on September 12, the officer conducted an illegal search of the moped to locate the serial number. His appeal on No. 23062 (theft of the check) is premised upon the complaint that, following appellant’s second arrest on September 13, Officer Gallogly conducted an unlawful search of the backpack, which revealed the check.

With respect to both of appellant’s challenges, there is the threshold question of whether he has "standing” even to make the challenge — whether he is in a position to claim the benefit of the Fourth Amendment guarantee. Neither trial court chose to address that issue. Instead, the first court (in No. 23465) concluded that the "search” of the moped was not a search at all or, if it was a search, was valid under either the "plain view” doctrine or as being incident to a valid arrest.

With respect to appellant’s second challenge — the search of the backpack — the trial court chose to assume appellant’s "standing” and concluded, on the merits of the question, that the search was valid as incident to a lawful arrest.

The court’s reluctance to address the more thorny "standing” issue is easily understood and is not uncommon. See, e.g., United States v. Huslage, 480 F. Supp. 870, 875 (W.D. Penn. 1979). However, the "standing” question is a preliminary one that should be resolved, for if appellant has no lawful right to contest the respective searches, the question of their validity becomes moot. Putting the cart before the horse may sometimes be easier to do, but it does make the ultimate journey considerably more difficult.

We therefore must consider the question: Does appellant have legitimate "standing” or capacity to object to the search of a backpack or a moped that he had stolen only a day earlier, and to which he had no lawful right of possession?

The very wording of the Fourth Amendment would seem to provide the answer. It states, in relevant part, that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . . .” (Emphasis supplied.) The Amendment says nothing about any right to be secure against the search and seizure of someone else’s person, house, papers, or effects.

But, for some reason, things are never quite so easy in the law. And so, from these seemingly plain words used in the Constitution, there has developed the complex concept of "standing.” When may a person be heard to complain that his Fourth Amendment right has been violated?

The history of "standing” in search and seizure cases is a long one, but, for our purpose, we may start with Jones v. United States, 362 U.S. 257 (1960). In Jones, the Supreme Court addressed the dilemma faced by a defendant charged with the unlawful possession of some contraband item who desired to challenge the search or seizure that led to discovery of that item by the police. Under the law then current, in order to have the requisite "standing” as someone "aggrieved” by the search or seizure, he had to show the very possession of the item that later would be used against him at trial.

As pointed out in Rakas v. Illinois, 439 U.S. 128, 135 (1978), the Jones Court attempted to resolve this type of "Catch-22” situation through two alternative holdings: "It established a rule of 'automatic’ standing to contest an allegedly illegal search where the same possession needed to establish standing is an essential element of the offense charged; and second, it stated that 'anyone legitimately on premises where a search occurs may challenge its legality by way of a motion to suppress.’ ”

We are not concerned here with the first of these holdings — that of "automatic standing” — as it has since been abrogated as a principle of law emanating from the Fourth Amendment. See United States v. Salvucci, 448 U.S. 83, 65 L. Ed. 2d 619 (1980); Rawlings v. Kentucky, 448 U.S. 98, 65 L. Ed. 2d 633 (1980), and compare Duncan and Smith v. State, 276 Md. 715 (1976), reversing Duncan and Smith v. State, 27 Md. App. 302 (1975).

Our interest in Jones as a starting point is in the second criterion — the legitimacy of presence or possession.

The Jones Court refused to consider the matter of "legitimacy” solely by reference to distinctions arising in the civil law of property, which is characterized as being "often only of gossamer strength.” 362 U.S. at 266. But it nevertheless made clear that its broader concept of legitimacy of presence "would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.” Id. at 267. Thus, even under the broad "standing” criteria of Jones, the lawfulness of the challenger’s presence in or possession of the place searched or item seized was a critical factor. See Rakas, supra, 439 U.S. at 140-41.

It became even more critical after Rakas. Reexamining Jones, the Court began anew with the underlying premise that Fourth Amendment rights are personal ones that may not be asserted vicariously. Drawing then on Alderman v. United States, 394 U.S. 165 (1969), the Court concluded that "[a] person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” (Emphasis supplied.) Rakas, supra, 439 U.S. at 134. The question was not really one of standing, said the Court, but rather of the "purview of substantive Fourth Amendment law....” Id. at 140.

The essential departure from Jones made in Rakas was in the "legitimately on premises” standard announced in Jones, which the Court, in retrospect, felt was too broad. Instead, it adopted the criterion of Katz v. United States, 389 U.S. 347 (1967) — whether the person claiming the protection of the Fourth Amendment "has a legitimate expectation of privacy in the invaded place.” (Emphasis supplied.) Rakas, supra, 439 U.S. at 143. In that connection, the Court stated, in a lengthy footnote (note 12, 439 U.S. at 143-44):

"Obviously, however, a 'legitimate’ expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as legitimate.’ His presence, in the words of Jones, 362 U.S., at 267, is 'wrongful’; his expectation is not 'one that society is prepared to recognize as "reasonable.” ’ Katz v. United States, 389 U.S., at 361 (Harlan, J., concurring). And it would, of course, be merely tautological to fall back on the notion that those expectations of privacy which are legitimate depend primarily on cases deciding exclusionary-rule issues in criminal cases. Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society. One of the main rights attaching to property is the right to exclude others, see W. Blackstone, Commentaries, Book 2, ch. 1, and one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of this right to exclude. Expectations of privacy protected by the Fourth Amendment, of course, need not be based on a common-law interest in real or personal property, or on the invasion of such an interest. These ideas were rejected both in Jones, supra, and Katz, supra. But by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment....”

If, as the footnote clearly implies, the law is not prepared to recognize as "legitimate” a burglar’s subjective expectation of privacy in a home he has burglarized, is it ready to protect a thief s expectation of privacy in a moped or a backpack that he has stolen?

The considerations here are not so simple as they may appear at first glance. Even under Rakas, the precepts of civil property law, though highly relevant, are not necessarily controlling. The legitimacy of one’s expectation of privacy is in large measure a function of its reasonableness, and that, in turn, is determined to some extent by the elements of time, place, and circumstance. There may well be situations, for example, in which the unlawfulness of an initial acquisition can become attenuated by other factors, such as the length of time the article is in the defendant’s exclusive possession, or an honest,, though mistaken, belief that the object in question actually belongs to him — that his acquisition of it was not unlawful.

We need not address, in this case, the ultimate parameters of the issue, of what result would flow from a balancing of these factors in the extreme case. Here, we have no doubt. Whatever appellant’s subjective expectation of privacy may have been, his interest in a moped or in a backpack (with most or all of its contents still in it) stolen the evening before, is simply not one that the Constitution ever intended to protect or that, viewed objectively from the perspective of public policy, should be protected.

This Court faced a similar issue in Palmer v. State, 14 Md. App. 159 (1972), where the defendant sought to suppress narcotics paraphernalia found in the stolen car he was driving at the time of his arrest. We concluded that "[n]o valuable social purpose could conceivably be served by extending the protection of the Fourth Amendment to a thief in the enjoyment of the stolen automobile.” Id. at 169. Other jurisdictions, both before and after Rakas, have reached similar conclusions. See, e.g., State v. Thomas, 595 S.W.2d 325 (Mo. App. 1980); Khaalis v. United States, 408 A.2d 313 (D.C. 1979), cert. den. 444 U.S. 1092 (1980); State v. Abordo, 596 p.2d 773 (Hawaii 1979); State v. Purcell, 586 P.2d 441 (Utah 1978); Mack v. State, 380 N.E.2d 592 (Ind. App. 1978); People v. Pearson, 546 P.2d 1259 (Colo. 1976). Although a few courts have reached the opposite result, e.g. Barr v. State, 531 P.2d 1399 (Okla. Cr. App. 1975), Cotton v. United States, 371 F.2d 385 (9th Cir. 1967), it is significant that in Rakas the Supreme Court characterized such holdings as "inexplicable.” Rakas, supra, 439 U.S. at 141, n. 9.

We therefore conclude that appellant was not deprived of any Constitutionally protected right by the search of the moped or the backpack — that, in pre-Rakas terms, he had no "standing” to object to either of these searches. We further conclude that the other issues raised on appeal are without merit.

Judgments affirmed; appellant to pay the costs.

      . Appellant stated that he retrieved the backpack earlier in the morning and had it with him when he returned later to claim the moped.

      . Officer Gallogly testified (in No. 23062) that the check was lying loose in the backpack and that he observed it when he emptied the contents. Appellant maintained that the check was in his wallet (which was in the backpack), and implied that Gallogly discovered it by searching his wallet. The court believed Gallogly, however, and we cannot say that it was clearly erroneous in doing so. Thus, we do not have a situation to which Arkansas v. Sanders, 442 U.S. 753 (1979), and Liichow v. State, 288 Md. 502, 419 A.2d 1041 (1980), would directly pertain.

      . The controversy over "automatic standing” may not yet be over in Maryland. The holdings in Salvucci and Rawlings were grounded on the Fourth Amendment, and do not necessarily preclude the discovery of "automatic standing” under State law. That very issue, in fact, is currently before the Court of Appeals in Gahan v. State (No. 80-41, cert. granted July 3,1980). Whether that Court will continue to accord the "great respect” it has in the past to Supreme Court Fourth Amendment decisions when dealing with analogous provisions of State law (see, for example, Givner v. State, 210 Md. 484, 498 (1956)), remains to be seen.

      . Had we reached the merits of the search and seizure issues, we would have been guided, as to the moped, by Conner v. State, 34 Md. App. 124 (1976), and State v. Sedacca, 252 Md. 207 (1969), and, as to the backpack, by Chimel v. California, 395 U.S. 752 (1969), and United States v. Garcia, 605 F.2d 349 (7th Cir. 1979).


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    JOSEPH GERALD MORROW v. STATE OF MARYLAND
    [No. 78,
    September Term, 1980.]

      Decided December 10, 1980.

    The cause was submitted on briefs to Gilbert, C. J., and Morton and Thompson-, JJ.
    Submitted by George E. Burns, Jr., Assistant Public Defender, and Alan H. Murrell, Public Defender, for appellant.
    Submitted by RayE. Stokes, Assistant Attorney General,

      Stephen II. Sachs, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Stephen M. Schenning, Assistant State’s Attorney for Baltimore County, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Joseph Gerald Morrow, the appellant, was convicted by a jury in the Circuit Court for Baltimore County of manslaughter by automobile in the death of John Albert Hughes, Sr. He was sentenced to a term of 15 months, which was later suspended. The appellant raises here the following questions:

1. Did the trial court err in ruling that appellant’s amnesia did not preclude him from receiving a fair trial?
2. Did the trial judge err in denying appellant’s request for a corrective instruction following the court’s misstatement that prosecution witnesses testified as to the manner in which appellant’s car was being driven?
3. Was the evidence sufficient to sustain the conviction of manslaughter by automobile?

FACTS

At approximately 2:36 a.m. on October 7, 1978, Officer Frank Rongione, Jr. of the Baltimore County Police Department arrived at the scene of an auto accident on Belair Road, a four-lane highway running in a north-south direction. He observed that the collision involved a silver American Motors Pacer hatchback and a white Pontiac LeMans. The Pacer had come to rest facing east in the right lane on the northbound side. The appellant, who was seriously injured, was pinned behind the wheel. The officer testified that he detected the odor of alcohol on the appellant’s breath. In the right lane on the opposite side of the road, facing southwest, was the Pontiac. Trapped in the front seat of that car was a woman identified as Constance Linn. Each vehicle was heavily damaged in front. Officer Rongione also observed the decedent, John Albert Hughes, Sr., who had apparently been thrown from the appellant’s car by the impact, lying on the road in the right northbound lane, south of the Pacer. The officer testified that he later determined from gouges in the pavement that the point of impact had been in the left northbound lane.

Officer Rongione read into evidence a statement obtained from the appellant following his arrest 12 days after the accident. In that statement, the appellant stated that he was driving his silver Pacer at approximately 2:25 a.m. on October 7, 1978 on Belair Road. He admitted leaving Pecora’s Bar & Restaurant, after consuming three or four rum and cokes, and proceeding south on Belair Road, with John Hughes as a passenger. He also admitted that he had consumed one beer at about 10:30 p.m. that night. The appellant stated that he could not remember what occurred after he left Pecora’s.

Calvin M. Cason, along with his wife, was driving north on Belair Road in the right lane at the time of the collision. Ahead of Cason in the left lane was the Pontiac driven by Constance Linn. Cason testified that he saw the silver Pacer, which was southbound, cross over the double center line into the northbound lanes and collide head-on with the northbound Pontiac. The Pacer than struck the curb on the northbound side of the road while the Pontiac came to rest in the southbound lanes.

Several witnesses testified concerning their encounters, immediately prior to, the collision, with a car which resembled that driven by appellant. Wayne Dircks testified that he was northbound in the right lane on Belair Road on October 7, 1978, at approximately 2:15 a.m., when he was forced to swerve to the right to avoid a southbound vehicle which crossed over the center line. When he looked in his rearview mirror after the vehicle had passed, Dircks saw smoke or steam. He then turned his car around and observed that a silver Pacer had collided with a white LeMans some 300 or 400 feet south of the point where he had been forced to swerve. Scott Williams, a passenger in the car driven by Dircks, also testified concerning the vehicle which had forced Dircks to swerve, describing it as a small car, silver in color. Neither Williams nor Dircks was certain that the car which forced them to the side of the road was the appellant’s Pacer. Judith Gloria testified that, while driving north on Belair Road that morning at approximately 2:10 a.m., she was forced off the road and into a guardrail by a southbound vehicle which came over the center line and into the right northbound lane. She described the vehicle as a light-colored hatchback, "a little bigger than a Pinto.” Patricia McKenny recalled that, while traveling south on Belair Road that morning some time after 2:00 a.m., she was passed by a light-colored hatchback which crossed over into the northbound lanes. She testified that the vehicle was exceeding the speed limit.

I Amnesia

Prior to trial, a hearing was held to determine whether the appellant was competent to stand trial. He claimed that he suffered amnesia as a result of the head injuries which he sustained in the collision. At the hearing, he produced a psychiatrist, Dr. Chester Schmitt, Jr., who testified that the appellant "had findings that were consistent with post-traumatic amnesia, that is, amnesia that follows head injury.” Dr. Schmitt stated that the appellant had reported that he had no memory of events occurring between the time he left Pecora’s Restaurant and the time he regained consciousness in the hospital later that morning. According to Dr. Schmitt, the appellant claimed that the police had been the source of the information contained in the statement he made 12 days after the collision. The doctor testified that the appellant understood the nature of the proceedings against him; he further agreed that the appellant would be able to consult with his attorney in the same manner as would any other defendant, except that he would be unable to answer questions concerning events which occurred during the period of memory loss. The trial court held that the appellant was competent to stand trial despite the amnesia. We agree.

An accused is incompetent to stand trial if he "is unable to understand the nature of the object of the proceeding against him or to assist in his defense.” Md. Ann. Code art. 59, § 23 (1979 Repl. Vol., 1980 Cum. Supp.). The Court of Appeals has held that this requires "that not only must the accused have 'a rational as well as factual understanding of the proceedings against him’ but also he must at the trial have 'sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding.’” Raithel v. State, 280 Md. 291, 298, 372 A.2d 1069 (1977). In the instant case, the appellant’s ability to understand the proceedings is undisputed; the issue is whether his amnesia rendered him incapable of assisting in his defense.

This issue is one of first impression in Maryland, cf., James v. State, 31 Md. App. 666, 688 n.9, 358 A.2d 595, cert. denied, 278 Md. 725 (1976); it has however been addressed by the courts in numerous other jurisdictions. See, e.g., United States v. Swanson, 572 F.2d 523 (5th Cir.), cert. denied, 439 U.S. 849 (1978); United States ex rel. Parson v. Anderson, 481 F.2d 94 (3d Cir.), cert. denied, 414 U.S. 1072 (1973); United States v. Borum, 464 F.2d 896 (10th Cir. 1972); United States v. Stevens, 461 F.2d 317 (7th Cir.), cert. denied, 409 U.S. 948 (1972); United States v. Sullivan, 406 F.2d 180 (2d Cir. 1969); Wilson v. United States, 129 U.S. App. D.C. 107, 391 F.2d 460 (1968); Fajeriak v. State, 520 P.2d 795 (Alas. 1974); State v. McClendon, 437 P.2d 421 (Ariz. 1968); Reagon v. State, 251 N.E.2d 829 (Ind. 1969); State v. Pugh, 283 A.2d 537 (N.J. Super. 1971); Commonwealth v. Price, 218 A.2d 758 (Pa.), cert. denied, 385 U.S. 869 (1966); Jackson v. State, 548 S.W.2d 685 (Tx. Crim. App. 1977). See, generally, Annot., 46 A.L.R.3d 544 (1972).

Although "there are no definitive judicial explanations” of what constitutes the ability to assist in one’s own defense, 27 Md. L. Rev. 182,186 (1967), it is clear that the cases without exception reject the notion that an accused possesses that ability only if he is able to remember the circumstances of the crime with which be is charged. See, Jackson v. State, supra at 691: ("We find no case yet reported which has held that the inability to recall the event charged because of amnesia constitutes mental incapacity to stand trial.”) Amnesia does not prevent an accused from exercising "his rights under the Sixth and Fourteenth Amendments: his right to challenge jurors, to be informed of the nature and cause of the accusation, to confront the witnesses against him, to summon witnesses in his favor and to have the assistance of counsel.” United States ex rel. Parson v. Anderson, 354 F. Supp. 1060, 1071 (D. Del. 1972), aff'd, 481 F.2d 94 (1973). "[Ajmnesia [does] not cause the accused to lie to his counsel, intentionally to hold out facts or hinder his defense; nor [does] it prevent him from understanding the nature of the oath, from truthfully answering all questions put to him on the stand, from answering questions rationally, or from comprehending the elements of the offenses with which he [is] charged and the facts set forth in the charges and specifications.” Amnesia: A Case Study in the Limits of Particular Justice, 71 Yale L.J. 109, 121 (1961). Amnesia does not prevent an accused from rationally discussing his defense with counsel, nor from making rational decisions with respect to his defense. Indeed, the amnesic defendant is "denied only the ability to testify personally to certain facts, and this is a disability shared in greater or lesser degree by all defendants as a result of the normal attrition of memory or the lack of opportunity to observe important facts.” Id. at 121.

The practical effects of expanding the definition of incompetency to include amnesia must be considered. Several courts have indicated that they were unwilling to hold that limited amnesia was an adequate ground for a determination of incompetency because the effect of such a holding would be to free, without trial, persons against whom prima facie criminal cases had been established. See, State v. Johnson, 536 P.2d 1035, 1036 (Ariz. 1975); Commonwealth v. Price, 218 A.2d at 763. It has been noted that, if amnesia were held to render an accused incompetent then, if the amnesia were permanent, the accused would never be competent and could never be tried: at the same time, because limited amnesia cannot be considered a mental defect or disease, an amnesic accused could not be hospitalized or institutionalized. See, Commonwealth v. Price, 218 A.2d at 763. Thus permanent amnesia as to the circumstances of the crime charged would be a permanent bar to the imposition of criminal responsibility. This is especially significant in light of "the extreme difficulty — often impossibility — of distinguishing real from feigned amnesia.” 71 Yale L.J. at 123. It has been noted that "an attempt to verify all but the most patently phoney claims of amnesia is at best a difficult and time-consuming task; at worst it is a hopeless one.” Id. at 124. It was these facts which led the Alaska Supreme Court to state that "policy conjoins with precedent to oppose an expansion of the doctrine of incompetency to include amnesia. The potential for fraudulent allegations of memory loss is so great that we would for this reason alone be reluctant to follow amnesia as a ground for a finding of incompetency even if we were otherwise inclined to do so.” Fajeriak v. State, 520 P.2d at 802.

Turning to the instant case, at the time of his trial, the appellant was admittedly , normal except for his amnesia. The expert witness agreed that the appellant was able to communicate in a normal manner with his attorney, except that he was unable to state from personal knowledge how the collision occurred. We find that the appellant’s claimed disability did not render him unable to assist in his defense and he was not, therefore, incompetent to stand trial. We agree with the holding in State v. Pugh, 283 A.2d at 542: "Amnesia concerning the crime does not render a defendant unable ... to consult intelligently with counsel in the preparation of his defense.”

The appellant also contends that his amnesia precluded him from receiving a fair trial. We cannot agree.

As "the fundamental fairness of trying an amnesiac defendant may vary depending on the crime and the circumstances surrounding the claimed loss of memory, .. . the propriety of trying an amnesiac defendant is a question to be determined according to the circumstances of each individual case.” (Footnote omitted). United States v. Swanson, 571 F.2d at 526. While it is of course not determinative of the question in the case at bar, we believe it is significant that in no case yet reported has it been held that an accused’s amnesia precluded a fair trial, i.e., constituted a denial of due process of law. See, e.g., United States v. Swanson, supra; United States v. Sullivan, supra; Jackson v. State, supra. Cf., Wilson v. United States, supra (case remanded for more extensive post-trial findings concerning effect of accused’s amnesia on fairness of trial); State v. McClendon, 419 P.2d 69 (Ariz. 1966) (case remanded for determination of whether reasonable continuance and treatment would permit accused to recover memory).

There have been a number of cases involving facts and contentions very similar to those in the instant case. We find persuasive the decision in Reagon v. State, supra, where the defendant was convicted of reckless homicide, manslaughter, and driving while intoxicated following a head-on collision caused by his attempt to pass another car while his vision was obstructed. Like the appellant, the defendant there suffered head injuries in the collision and claimed that he was unable to remember the facts relative to the accident. The court rejected his contention that he should not be tried, stating:

"Many times in a trial of a criminal case evidence is lost, a material witness dies, or, as in this case, the defendant has amnesia as to certain events or a time. Still, such handicaps from a defendant’s point of view cannot prevent a trial from taking place eventually. Rarely would we find a case in which a defendant could not contend that he was deprived of some evidence and therefore he ought not to be tried. However, evidence which is never to be obtained because of the death of witnesses cannot prevent a criminal trial from taking place, and that must be said from the state’s point of view as well as that of the defendant.” Id. at 831.

We note also the comment made by Judge Leventhal in his concurring opinion in Wilson v. United States, 391 F.2d at 465: "It is probably commonplace for a man to be convicted of negligent homicide although in fact his memory of the event is vitiated by drink, shock, or both, and I see nothing unconscionable in this.”

In the instant case, we find nothing to indicate that the appellant’s amnesia precluded a fair trial. As noted above, defendants are often tried under circumstances where less than all of the relevant facts are available. Witnesses die, witnesses forget, documents are destroyed or lost; nevertheless the courts must administer justice based on that evidence which is available. The evidence in this case is overwhelming. This is not an instance where the facts suggest the possibility of an alibi or other defense which has been locked away by the appellant’s loss of memory. The appellant was provided with a list of witnesses to the collision; he had the same opportunity as did the State to interview, examine and cross-examine these witnesses. We find that, under these circumstances, the appellant’s amnesia did not preclude him from receiving a fair trial.

II Instructions

During the course of his instructions to the jury, the trial judge stated:

"You may also consider the manner of driving, to wit; you have heard descriptions of how the Pacer was being operated, and you may consider its course southerly on the Belair Road. You may consider the testimony of such witnesses as Judith Gloria and Wayne Dircks, who were in cars that encountered the Pacer prior to the accident between the Pacer and the 1970 LeMans, driven by Constance Linn.”

After the instructions were completed, the following colloquy occurred:

"[Defense counsel]: Your Honor, may I take exceptions to them, please, to two of the instructions?
The Court: I will let you read them into the record afterwards.
[Defense counsel]: That will be fine, Your Honor.
The Court: All right. You can protect your record in that event, but I am sure everything I said was Horn Book.
[Defense counsel]: All right. Thank you, Your Honor.
The Court: Hold on a minute. Wait a minute. I want to be sure I didn’t miss anything that was —
[Defense counsel]: Your Honor, the one I had in mind was the presumption instruction. I didn’t hear that. Then I had one other, which I will be glad to save until after argument.”

The "presumption instruction” to which the defense counsel referred was an instruction that the appellant was to be presumed innocent, which the court below had in fact given. The exception which defense counsel chose to "save” until after the jury retired was as follows:

"[Defense counsel]: I would take exception to the Court’s instruction relating to Judith Mae Gloria and Constance Linn and any others to the effect that they testified as to how Mr. Morrow’s car was being driven prior to the accident, and they did not testify that the automobile was Mr. Morrow’s and were barely able to identify the automobile, at all, and, therefore, I request an instruction to the effect that they were unable to identify Mr. Morrow’s automobile as the automobile which was involved in the accident, and, therefore, the jury cannot conclude from their testimony that the same automobile they saw was Mr. Morrow’s automobile.”

Our review of the transcript indicates that the appellant’s counsel was correct in his exception: the trial judge was mistaken when he stated that Judith Gloria and Wayne Dircks had testified that they had encountered the Pacer involved in the accident. Neither Gloria nor Dircks was certain whether the vehicle which forced them off the road was the same vehicle which was involved in the fatal collision.

However, Md. Rule 757 f provides as follows:

"If a party has an objection to any instructions, to any omission therefrom, or to the failure to give an instruction he shall make the objection on the record before the jury retires to consider its verdict and shall state distinctly the matter or omission, or failure to instruct to which he objects and the grounds of his objection. Upon request of any party, the court shall receive objections out of the hearing of the jury.” (emphasis added).

As this Court stated in Vernon v. State, 12 Md. App. 157, 163, 277 A.2d 635 (1971), "It is clear that the purpose and design of the rule is to correct errors while the opportunity to correct them still exists. Only thus is an error preserved for appellate review.” In the instant case, the effect of defense counsel "sav[ing]” his exception was to deny the trial court the opportunity to correct the erroneous instruction, and thus the point has not been preserved for our review. See also, Bruce v. State, 218 Md. 87, 145 A.2d 428 (1958); Sine v. State, 40 Md. App. 628, 394 A.2d 1206 (1978), cert. denied, 284 Md. 748 (1979).

Ill Sufficiency of the Evidence

Appellant argues that the evidence summarized above was insufficient to support his conviction. We think the argument is so devoid of merit that we decline to discuss it.

Judgment affirmed.

Appellant to pay the costs.

      . A blood test administered following the collision revealed that appellant had a blood alcohol level of .16 per cent.

      . The Court of Appeals quoted Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), where the Supreme Court interpreted 18 U.S.C. § 4244. The language contained in 18 U.S.C. § 4244 and in art. 59, § 23 is "virtually identical.” Raithel v. State, supra at 298.

      . Although we stated in James that "Amnesia per se does not bar prosecution,” 31 Md. App. at 688 n.9, we found that "the clear indication of the jury’s verdict was that no amnesia in fact existed.” Id. at 689. Therefore, we did not reach the issue presented here, where the genuineness of the appellant’s amnesia has not been disputed.

      . We note that, in the case at bar, the psychiatrist was unable to confirm or deny the genuineness of the appellant’s claim of amnesia: he could only conclude that appellant "had findings that were consistent with” a claim of amnesia.


text:
    THE SERGEANT COMPANY et al. v. CLIFTON BUILDING CORPORATION
    [No. 98,
    September Term, 1980.]

      Decided December 10, 1980.

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

      James R. Eyler, with whom was Richard P. Kidwell on the brief, for appellants.

      Thomas B. Yewell, with whom were Haislip & Yewell on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

This appeal arises out of an action for breach of contract brought in the Circuit Court for Charles County by Ronald W. Pickett (Pickett) and the Clifton Building Corporation (Clifton), the appellee, against The Sergeant Company (Sergeant) and Fidelity Federal Savings & Loan Association (Fidelity), the appellants. This is the third time this action has been before this Court: on two previous occasions we affirmed, in unreported opinions, a judgment entered at trial awarding Pickett $53,450; on each occasion the Court of Appeals reversed. See, The Sergeant Company v. Pickett, 285 Md. 186, 401 A.2d 651 (1979); The Sergeant Company v. Pickett, 283 Md. 284, 388 A.2d 543 (1978). In its second opinion in this case, the Court of Appeals affirmed the judgment with respect to the liability of the appellants but, because the jury was improperly instructed concerning damages, vacated the damages award and ordered a new trial as to the amount of damages. The present appeal is from the judgment in the second trial* awarding Clifton $53,000 in damages against the appellants.

The facts involved were set forth in some detail in the second opinion of the Court of Appeals, see, The Sergeant Company v. Pickett, 285 Md. at 195-203; for our present purposes a very brief recitation of the facts will be sufficient. Pickett planned to build houses in a development in Charles County to be known as "Clifton on the Potomac.” In December, 1974, he approached Sergeant, a subsidiary of Fidelity, seeking to obtain a source of permanent financing for the prospective buyers of the houses which he planned to build. By an agreement executed on January 14,1975, it was agreed that Sergeant would use its best efforts to procure such financing: on January 24, 1975, Sergeant advised Pickett that Fidelity had obtained and would make available to Pickett some $485,000 in "special forward” money. This commitment was for a period of one year. Pickett formed Clifton, the entity which contracted for and built the houses in the development, in May or June, 1975; however, due to difficulties in obtaining building permits and an injury suffered by Pickett in an accident, actual construction was delayed until September, 1975. In September, thirteen buyers signed sales contracts for homes in Clifton on the Potomac. Pickett testified that when the thirteen contracts were presented to Sergeant, Sergeant told him that the special forward money had been withdrawn. Due to the withdrawal of the low-interest mortgage financing, nine of the thirteen home-buyers refused to complete the sale. The four buyers who chose to buy the houses despite the unavailability of low-interest financing were forced to borrow money at substantially higher interest rates. Pickett testified that, in order to induce the buyers to do this, he was forced to pay the closing costs and fees normally assumed by the buyers. Pickett testified that these costs and fees totalled $1,200 on each house, thus he claimed that, as a result of the appellants’ breach of their loan commitment, he lost $1,200 on each of the four houses for which the buyers were willing to accept alternative financing.

As for the nine buyers who rescinded their contracts when informed that the promised financing was unavailable, Pickett testified that this resulted in lost profits of $5,000 on each house. Pickett arrived at this figure by computing the cost to build each house and subtracting that figure from the price at which he had contracted to sell the house. Thus, he claimed losses of $1,200 on each of the four houses where the buyers did not rescind, losses of $5,000 on each of the nine houses where the buyers did rescind, and, in addition, a loss of $4,850 in fees paid to the appellants for the commitment which was withdrawn. The jury awarded damages in the amount of $53,000.

I

The appellant’s first contention is that, while the previous trial resulted in a determination that the appellants were liable to Pickett, testimony at the second trial showed that the damages caused by the appellants’ breach were suffered by Clifton, the corporation owned by Pickett. The court below, at the conclusion of the second trial, resolved this situation by instructing the jury that its verdict should be in favor of Clifton, rather than Pickett. The appellants contend that the court should have granted their motion for a directed verdict.

The suit was initially filed by Pickett individually. Prior to the first trial, Clifton was added as a party plaintiff. Apparently, all concerned lost sight of the fact that there were two plaintiffs, for, at the conclusion of the first trial, the jury was instructed that its verdict should be for either the plaintiff or the defendants, after which, as recorded in the transcript, "the jury returned to the courtroom and announced its verdict in favor of the plaintiff in the amount of $53,450; and on the cross-claim in favor of the Defendant.” The docket entry is as follows:

’’Verdict of the Jury: On the Original Case the Jury found in favor of the plff. Ronald W. Pickett and against the Defts., Sergeant Co. & Fidelity Federal Savings & Loan Association & assessed damages in the amount of $53,450.00. On the Counter-claim the Jury found in favor of the Counter-Deft. Ronald W. Pickett & against the Counter Plff. The Sergeant Co.”

When the present contention was raised below, the trial judge stated:

"The Court: Well, Clifton was a party to the proceeding. I concede that reviewing the transcript that apparently the matter was not submitted in that form to the jury but it is obvious from the testimony that Mr. Pickett, who was the sole owner of Clifton, was a Plaintiff, no judgment was entered in favor of the Defendant against the Plaintiff, Clifton, and we feel that the issue should be submitted to the jury on the question of damages.
"It seems obvious that this was a mistake in the entry of the judgment in favor of the Plaintiff, Pickett, who, that is all the evidence shows, was not the party who in fact built the houses, which were the subject of the loss, which was occasioned by the breach of the contract.”

He then instructed the jury as follows:

"The Court: Members of the jury, as previously told by the Court, the matter of liability is not an issue in this case. We are dealing with the issue of damages.
"Now there are two Plaintiffs in this proceeding, Ronald W. Pickett and Clifton Building Corporation.
"Now the Court is going to instruct you that at this stage there, and it has been agreed by counsel representing the Plaintiffs, Ronald W. Pickett and Clifton Building Corporation that the verdict should be in the name of Clifton Building Corporation, so the verdict, which you rendered in this case, will go in favor of that Plaintiff, it having been concluded that they were the, or that corporation was the one who sustained any loss that you find to have been sustained as a result of the evidence which had been admitted here today.”

We think that the action of the trial judge, which amounted to a reformation of the verdict returned at the first trial, was entirely proper. In Montgomery Ward & Co. v. Keulemans, 275 Md. 441, 446-47, 340 A.2d 705 (1975), the Court, confronted with a somewhat similar situation, stated:

"An examination of the record makes it clear that the verdict of $1,350.00 entered on the false arrest count consisted of two elements: $1,000.00 for salary at $200.00 a week which Keulemans lost as a result of his suspension for five weeks while awaiting trial, and the $350.00 fee paid by Keulemans to defend him in the shoplifting case. Hence, the $350.00 fee was only recoverable in the malicious prosecution case.
"The trial court recognized this, and cited it as a reason for the denial of the defendants’ motion for a judgment n.o.v., made before judgment absolute was entered. It would have been appropriate at this juncture for the trial court to have reformed the verdict by transferring the $350.00 award from the false arrest count to the malicious prosecution count. We see no reason why this cannot be accomplished on remand.
"The defendants argue that the defect in the verdict may only be corrected by the jury, or by the court, in the jury’s presence. Alternatively, they argue that there was no effort made by the court here to correct the verdict. On the first point, they would be right, if the verdict were fatally defective, as, for example, would be a verdict which fails to assess damages. Such was the situation in Gaither v. Wilmer, supra, 71 Md. at 364. However, we find their argument on the second point unpersuasive, because we are satisfied that it is not too late to reform the verdict in this case.”

See also, Traylor v. Grafton, 273 Md. 649, 683, 332 A.2d 651 (1975); Davis v. Board of Education, 168 Md. 74, 78-79, 176 A. 878 (1935); Sun Cab Co. v. Walston, 15 Md. App. 113, 161-62, 289 A.2d 804 (1972), aff'd in part 267 Md. 559, 298 A.2d 391 (1973).

II

To show the damages suffered by Clifton as the result of the appellants’ breach, Pickett testified concerning the costs incurred by Clifton in constructing four of the houses built in the development from a memorandum which he had prepared, listing the average cost for each of the components of the four houses. The information contained in the memorandum had been extracted by Pickett from the corporation’s checkbooks; apparently the memorandum was a rough list or compilation of those checks which had been written to pay for work and materials which had gone into the four houses. On cross-examination, Pickett indicated that he had with him only his "extractions from the checkbooks” and that the actual checkbooks had not been brought to court. The appellants moved to strike Pickett’s testimony on the grounds that permitting him to testify concerning Clifton’s costs, as recorded in the corporation’s checkbooks, without the production of the checkbooks, violated the best evidence rule; they renew this contention on appeal.

We are of the opinion that the testimony of Pickett, summarizing the contents of the checkbooks, was properly admissible, as within the discretion of the trial court. 4 Wigmore, Evidence, § 1230 (Chadbourn rev. 1972) states:

"Where a fact could be ascertained only by the inspection of a large number of documents made up of very numerous detailed statements — as, the net balance resulting from a year’s vouchers of a treasurer or a year’s accounts in a bank ledger — it is obvious that it would often be practically out of the question to apply the present principle by requiring the production of the entire mass of documents and entries to be perused by the jury or read aloud to them. The convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the net result. Such a practice is well established to be proper.
"Most courts require, as a condition, that the mass thus summarily testified to shall, if the occasion seems to require it, be placed at hand in court, or at least be made accessible to the opposing party, in order that the correctness of the evidence may be tested by inspection if desired, or that the material for cross-examination may be available. . .”
"The most commonly recognized application of this principle is that by which the state of pecuniary accounts or other business transactions is allowed to be shown by a witness’ schedule or summary. So, also in trying an issue of infringement of copyright, the material passages may be culled from the entire volume and presented in such a way as to be conveniently compared. Upon the same principle, summaries of official or corporate records might be presented; and testimony, by one who has examined records, that no record of a specific tenor is there contained is receivable instead of producing the entire mass for perusal in the courtroom.” (emphasis in original), (footnotes omitted). Id. at 535-46.

The principle discussed by Wigmore has been recognized by the Maryland courts. In Smith v. Jones, 236 Md. 305, 309-10, 203 A.2d 865 (1964), it was stated that "ts]ummaries or compilations made from such records may be admissible, when a proper foundation has been laid by a qualified witness on the stand.” In O’Donnell v. State, 188 Md. 693, 697, 53 A.2d 688 (1947), the Court said: "It has been held by this Court that where the books from which certain items are desired to be offered in evidence are large records, a compilation properly made from those records is admissible.” Accord, Queen v. State, 26 Md. App. 222, 337 A.2d 199 (1975); Goodman v. State, 2 Md. App. 473, 235 A.2d 560 (1967). But see, Glen Alden v. Duvall, 240 Md. 405, 427, 215 A.2d 155 (1965).

The appellants claim support for their argument that Pickett’s testimony violated the best evidence rule in General Builders v. MacArthur, 228 Md. 320, 179 A.2d 868 (1962). There an objection was made, on the basis of the best evidence rule, "to the admissibility of an exhibit purporting to be an itemized list ... of the cancelled checks given in connection with the completion of the dwelling by the owner.” Id. at 327. This list of checks was part of the owner’s proof of the damages which he had suffered as the result of the builder’s breach of contract. Although the appellee in the instant case chose to merely debate the accuracy of the appellants’ account of the facts in General Builders, rather than discussing the legal principles involved, we believe that the case provides at least some support for the appellee’s position. The Court held that the rule had not been violated, thus at least implicitly sanctioning the use of a compilation or list of checks to prove the damages suffered as the result of a contract breach.

We also find instructive the opinion of the District of Columbia Court of Appeals in R.S. Willard Co. v. Columbia Van Lines Moving & Storage Co., 253 A.2d 454 (D.C. 1969). There a loading door on the plaintiffs warehouse was damaged by the defendant’s truck, rendering it unusable for a period of time and making access to the warehouse considerably more difficult. The plaintiff claimed, as an item of damages, the additional labor costs which had resulted from its having to use other doors for loading and unloading. The plaintiff proved these additional costs through the testimony of its manager, who computed the expenses from the employee time sheets and payroll records, which showed an increased payroll during the time that the door was unusable. Neither the time sheets, which were present in court, nor the payroll records, which were not present, were introduced into evidence. On appeal, it was argued that the manager’s testimony should have been excluded because it violated the best evidence rule. The D.C. Court rejected this argument, stating:

" 'The best-evidence rule is not always an inflexible and unyielding one. A reasonable discretion is vested in the trial court in the application of the rule.’ This court has recognized that a witness may be allowed to give an abstract or summary from voluminous records if the source material is available to the other party. Perhaps the time sheets here for the eight-week period were not so voluminous, but they must have constituted numerous pages. It should be remembered that the witness was testifying to the 'average’ payroll for the weeks in question and not to the exact amount. The time sheets were in court and were available to appellant’s counsel if he questioned the accuracy of the witness’ calculations. We think the trial court was well within its discretion in allowing the testimony.” (footnotes omitted). Id. at 456-57.

It is generally required that the documents to be summarized be made accessible to the opposing party and that notice be given of the proponent’s intention to use such a summary. See, Annot., 80 A.L.R. 3d 405 (1977). In the case at bar, the appellants were fully advised as to the facts which Clifton intended to prove and in the manner in which it intended to prove them. Similar testimony had been offered at the first trial and the appellants had taken Pickett’s deposition. In view of the obvious impracticality of requiring the jury members to go through all of Clifton’s checkbooks and ascertain for themselves the costs of these houses, and inasmuch as we see no injustice resulting from the admission by the trial court of Pickett’s testimony, we find that, under the circumstances of this case, the court did not abuse its discretion in admitting this evidence.

Ill

As we noted above, Clifton claimed that, as the result of the appellants’ breach of its loan commitment, nine buyers rescinded their contracts with Clifton, causing the corporation to lose an expected profit of $5,000 on each of the nine houses. The appellants challenge the award of damages for the lost profits on two grounds.

The appellants first argue that Clifton failed to prove that the breach of contract was the cause of any loss of profits. They contend that, although nine of the thirteen buyers with whom Clifton had contracts at the time of the breach rescinded their contracts as the result of that breach, Clifton suffered no loss because it eventually built and sold a total of thirteen houses, thus placing it in the same position it would have occupied had the appellants not withdrawn their loan commitment. The evidence adduced at trial showed that, at the time of the breach, Clifton had the resources and the intention to build considerably more than thirteen houses in the development. Had the appellants not breached, Clifton would have retained the nine buyers who rescinded and the nine buyers who bought during the following year. Thus, but for the appellants’ breach, Clifton would have sold at least twenty-two houses, not thirteen. We stated in Dialist Co. v. Pulford, 42 Md. App. 173, 179, 399 A.2d 1374 that "the measure of damages for a breach of contract is that sum which would put plaintiff in as good a position as he would have occupied had the contract been fully performed . . .” and that "fs]uch sum is usually the amount of profit which would have been derived from the agreement had no breach occurred.” See, M & R Builders v. Michael, 215 Md. 340, 138 A.2d 350 (1958). Here, awarding Clifton the profits it would have received from the nine sales which it lost places it in the position it would have occupied had the appellants not breached their contract. The appellants’ contention is without merit.

The appellants also assert that "Clifton was not an established business which had been operating for a sufficient length of time to afford a basis for some degree of certainty as to the loss of profits.” In John D. Copanos & Sons v. McDade Rig., 43 Md. App. 204, 208, 403 A.2d 402, cert. denied, 286 Md. 750 (1979), this Court stated: "The real concern in considering lost profits as an element of damages is nqt whether the business is old or new, but rather whether anticipated profits can be shown with reasonable certainty so that the evidence rises above speculation or conjecture.” In Copanos, a drug manufacturer sought to recover profits lost as the result of the destruction of a machine which was to have been used to produce a particular drug. Because the machine had not yet been placed in production, the trial court held that the profits anticipated from the use of the machine could not be proven with reasonable certainty and refused to permit the manufacturer to present evidence of lost profits. We reversed, holding that the evidence proffered by the manufacturer was sufficient for it to reach the jury on the question of lost profits. In its proffer, the manufacturer indicated that it would present evidence that it had contracts for the sale of the drug which was to have been manufactured with the machine and those contracts were cancelled by the buyers after the destruction of the machine; that it would establish its cost to produce the drug; and, that it would establish the price at which the drug was to have been sold under the contracts. Id. at 209.

We see no significant difference between the proffer which we held sufficient in Copanos and the evidence which Clifton presented at trial. Clifton proved that it had contracts for the sale of thirteen houses and that, as the result of the appellants’ breach, nine of the contracts were cancelled; it proved its costs in building the houses; and, it proved the price at which it would have sold the houses under the contracts which were rescinded. These facts were proven through the testimony of Pickett, who had considerable experience in real estate development and who had been a builder of single family homes since 1969. The law requires no more certainty than this. Reasonable certainty is all that is required. See, Impala Platinum v. Impala Sales, 283 Md. 296, 330-33, 389 A.2d 887 (1978); M&R Builders v. Michael, supra; GAI Audio of New York v. C.B.S., 27 Md. App. 172, 200, 340 A.2d 736 (1975).

Judgment affirmed.

Appellants to pay the costs.

      . There had been only one trial prior to the one now under consideration.

      . Apparently, "special forward” money is low-interest mortgage financing available to prospective home buyers who meet certain eligibility requirements through the Government National Mortgage Association, Federal National Mortgage Association, or the Federal Home Loan Mortgage Association.

      . The appellants had filed a counter-claim against Pickett for fees said to be owed for the commitment of the special forward money.


author: Moore, J.,

text:
    RICHARD W. MARSHALL et al. v. JOHN J. FITZGERALD et al.
    [No. 110,
    September Term, 1980.]

      Decided December 10, 1980.

    The cause was argued before Morton, Moore and Weant, JJ.

      William T. Rooker, Jr., with whom was Donald E. Fitzgerald on the brief, for appellants.

      John J. Delaney, with whom were William Kominers and Linowes & Blocher on the brief, for appellees Fitzgerald et al. Howard J. Thomas, with whom were Bradshaw, Thomas & Yeatman on the brief, for appellee Wildwood Hills Citizens Association. Paul A. McGuckian, County Attorney for Montgomery County, Robert G. Tobin, Jr., Deputy County Attorney for Montgomery County, and Ralph E. Hall, Jr., Assistant County Attorney for Montgomery County, on the brief, for appellee Montgomery County, Maryland.
   Moore, J.,

delivered the opinion of the Court.

The question presented in this appeal is whether the Circuit Court for Montgomery County erred in affirming a decision rendered by the Montgomery County Council, sitting as the District Council, granting applications for the rezoning of two parcels of land in Bethesda, aggregating approximately 22.2 acres, from the R-200 Zone (residential, one-half acre) to the RT-8 Zone (townhouse), applications for townhouse zoning having been denied some five years earlier.

I The Property

The subject property consists of two contiguous parcels, containing 6.7258 and 15.4802 acres, respectively, technically divided by a dedicated but unimproved right-of-way comprising 1.84 acres, which reduces the net buildable area to 20.38 acres. The property is located in the southwest and southeast quadrants of the intersection of Democracy Boulevard and Westlake Drive in Montgomery County, Maryland, and is within Neighborhood VCIV of the Cabin John Master Plan. The unimproved right-of-way is for the extension of Westlake Drive across Democracy Boulevard.

The property fronts on Democracy Boulevard, a major six-lane divided highway running in an east-west direction. Directly opposite the site, across Democracy Boulevard, is the Montgomery Mall Regional Shopping Center consisting of 1,000,000 square feet of gross leasable area. To the east of the Mall, across Interstate 270, is the 270-acre "Davis Tract,” an existing office building and shopping center complex which currently includes C-l (Convenience Commercial), C-P (Commercial Office Park), 1-3 (Industrial Park), and R-H (Multiple-Family, High-Rise Planned Residential) zoning over various areas. North of the Mall is a 28.8 acre parcel classified C-2 (General Commercial) to permit the development of an automobile "Motor Mall.”

Across the existing portion of Westlake Drive, west of Montgomery Mall, is a large area of townhouse, high-rise apartment and mid-rise apartment uses zoned R-20 (Multiple-Family, Medium Density Residential), R-30 (Multiple-Family, Low Density Residential) and R-H. To the west of that area is the Cabin John Regional Park.

To the south of the property, and separated from it by Bells Mill Road, is Wildwood Hills, a 36 home R-200 subdivision. The Wildwood Hills Citizens Association supported the applications below and on this appeal, by separate counsel. Five of the appellants, however, are property owners in Wildwood Hills. South of the property and west of Wildwood Hills is the Bethesda Country Club and Golf Course. West of the Country Club are the subdivisions of Ashleigh and Knollwood containing single-family dwellings. The instant applications were also opposed by the Ashleigh Community League. Both subdivisions and the Country Club are zoned R-200.

II Zoning History

In 1958 the subject property and all other property within Neighborhood VCIV of the Cabin John Master Plan was, by a Sectional Map Amendment (No. B-573), reclassified from the R-A zone (Agricultural Residential, Two Acre) to the R-R zone (Rural Residential, Half-Acre), now designated as R-200.

Ten years later, the first of three attempts was made to reclassify the property to permit the construction of townhouses. The 1968 applications (F-305 and F-306) were part of a larger package of seven applications and requested a change to the R-T zone (12.5 dwelling units per acre). The Technical Staff of the Montgomery County Planning Board recommended their denial or deferral pending completion of certain Master Plan revisions but the Planning Board recommended approval. Prior to a final decision by the District Council, all seven applications were withdrawn, by permission, on May 25, 1971.

The next chapter in the zoning history of the property began on November 28, 1972 when the current applicants, the appellees herein, filed applications F-872 and F-873 for reclassification to C-3 (Highway Commercial) or, in the alternative, R-T (Townhouse). At that time, the R-T zone was the county’s only townhouse zone and permitted a density of 12.5 units per acre. Subsequent to the filing of the applications, the Council adopted a Resolution providing an allowance of twenty per cent more units for the inclusion of Moderately-Priced Dwelling Units (MPDU’s), thus permitting a density of 15 R-T units per acre. The Technical Staff and the Hearing Examiner recommended R-T approval but the Planning Board, in a reversal of its prior action, recommended denial on the ground that the 12.5 units per acre would create a density use higher than would be compatible with the surrounding residential areas. The District Council denied the applications on August 20,1974. The applicants appealed to the Circuit Court for Montgomery County and the denials were upheld (Shearin, J.). This Court affirmed in Fitzgerald v. Montgomery County, 37 Md. App. 148, 376 A.2d 1125, decided on September 7, 1977, in an opinion by Judge Mason.

Approximately nine months later, the District Council adopted a Zoning Text Amendment (Ordinance No. 8-71), effective June 13, 1978, which redesignated the R-T zone into four separate RT categories based upon varying densities, as follows:

RT 12.5

RT 10

RT 8

RT 6

(The numerals indicate the maximum densities within each category.)

Referring to the Text Amendment, Hearing Examiner Abrams’ report in the proceedings below states:

"The adoption of this text amendment was at least in part in answer to the denial of the prior R-T applications on the subject property. The new R-T zones were developed to provide the opportunity for applicants seeking town house zoning to apply for a lesser dwelling unit density on tracts where development at 12.5 units per acre was deemed undesirable. By providing additional R-T density categories this permitted increased locational flexibility within this form of zoning district and development thereon.”

The applications which are the subject of this appeal, Nos. G-142 and G-143, were filed on August 30, 1978, some two and one-half months after the adoption of the Text Amendment. They sought a zoning reclassification from R-200 to RT 8 — a permissible density of 8 dwelling units per acre plus the 20% "bonus” for MPDU’s, a maximum density of 9.6 dwelling units per acre.

The Technical Staff, the Planning Board and the Hearing Examiner recommended approval and, on March 27,1979, the District Council adopted a resolution granting the reclassification in each application. Appellants again appealed to the circuit court. On December 20, 1979, the court (Shearin, J.) affirmed, finding a "substantial change in the structure of the zoning ordinance relating to townhouses. * * * The Court has concluded in fact and in law they (the old and new R-T classifications) are substantially different. A difference of some 30-odd per cent in density standing alone is, by any rational test, substantial.”

The principal thrust of this appeal is that the 1978 applications were for substantially the same rezoning as was the subject of the 1972 applications which had been denied, and that successive applications are barred by res judicata.

Ill Res Judicata Issue

Provisions of zoning ordinances generally set a time, after approval or denial of an application, within which a new application may be filed. It is settled law in Maryland that such provisions do not dispense with the rule of res judicata. The Chatham Corp. v. Beltram, 243 Md. 138, 220 A.2d 589 (1966); Woodlawn Area Citizens Ass’n, Inc. v. Board of County Commissioners for Prince George’s County, 241 Md. 187, 216 A.2d 149 (1966); Whittle v. Board of Zoning Appeals of Baltimore County, 211 Md. 36, 125 A.2d 41 (1956). Under that rule, the zoning authority may grant the reclassification after the lapse of the specified time only if there has been a substantial change in conditions. As Chief Judge Bruñe explained in Whittle:

"[W]here the facts are subject to changes which might reasonably lead to an opposite result from that arrived at in an earlier case, and if there have been substantial changes in fact and circumstances between the first case and the second, the doctrine of res judicata would not prevent the granting [of the second application],. .(Emphasis added.)

Id. at 45, 125 A.2d at 46.

The narrow question before us on this appeal, therefore, is whether there was a "substantial” change in conditions between the denial of the first applications (F-872, F-873) in 1974 and the granting of the second applications (G-142, G-143) in 1979. The lower court specifically addressed this issue and found in the affirmative, on the basis of a "substantial” reduction in allowable density. In our view, the record amply supports Judge Shearin’s conclusions.

At the outset, we observe that the density factor involved in the applications denied in 1974, when the only R-T density allowed was 12.5 units per acre, loomed large in the Council’s consideration of the earlier cases. The Resolution of denial recited in part:

"The .proposed R-T zoning [12.5 units per acre] would permit a much higher density of development than provided for this tract and area in the Master Plan for the Cabin John Watershed.”

In the grant of the RT-8 application in 1979, the District Council recorded its awareness of its previous action and its perception of the significance of the change in the text of the zoning ordinance in the interim. The District Council’s 1979 Resolution stated, in this respect:

"The District Council is cognizant of its prior denial of R-T zoning for these parcels in August, 1974 but distinguishes the subject applications on the basis of the lower permissible density and more compatible nature of the subject applications as compared to the prior applications in Case Nos. F-872 and F-873.” (Emphasis added.)

The analysis by the Zoning Hearing Examiner of the density question in the 1979 cases, an analysis with which the Council in its Resolution expressly stated its agreement, disclosed "an approximate 30% reduction in overall density between the prior applications and the subject applications,” assuming maximum theoretical development of 195 units (including the MPDU "bonus”), as compared with an allowable 275 units (not including MPDU’s) in the 1974 cases. (The Examiner also found that under the development plan of the applicants which proposed a 172-unit maximum development (including MPDU’s) in the 1979 cases, a 38% reduction from the maximum (275) in the prior zoning cases would result.)

Appellants assail the District Council’s action in granting the applications in 1979, and the circuit court’s affirmance, claiming that the Council’s later action represented a "mere change of mind.” They contend, in essence, that the Council merely disapproved a 200-unit townhouse development in 1974 and approved a 172-unit development in 1979. The fallacy in their position is that they are employing not the figures representing the maximum allowable densities in the respective years, but the number of units proposed by the applicants in their site plans for the 1974 (200 units) and 1979 (172 units) cases; and, even at that, they compare the 1974 site plan proposal of 200 units without the MPDU allowance of 20% (240 units) with the 1979 proposal of 172 units with the MPDU allowance.

It is a well settled principle of Maryland law that the District Council was obliged, in its dispositions of these cases in 1974 and, of course, in 1979 to consider the maximum development allowable under the zoning category being requested — and not simply the applicant’s site plan and proposed development. Maryland cases have long held that zoning decisions based solely upon the proposed development plan of the applicant offend the rule against conditional zoning. See Montgomery County v. National Capital Realty Corp., 267 Md. 364, 373, 297 A.2d 675, 680 (1972); Hyson v. Montgomery County Council, 242 Md. 55, 70, 217 A.2d 578, 587-88 (1966). It is the zoning classification for which application is made, not the proposed use, which is controlling. This the District Council clearly recognized. When the Council rejected the old R-T classification in 1974, it was considering a density potential in the two parcels substantially higher — at least 30% — than the density potential inherent in the RT-8 applications in 1979. The issue decided in 1974 was, as the lower court found, substantially different from that before the Council in 1979. Res judicata was, therefore, not a bar to the 1979 grant.

Appellants seek support in the opinion of Judge Hammond, later Chief Judge, in Woodlawn Area Citizens Ass’n, Inc. v. Board of County Commissioners for Prince George’s County, 241 Md. 187, 216 A.2d 149 (1966), where a rezoning of 47 acres of undeveloped land was denied by the District Council in 1961 but granted in 1964. On appeal, the appellees contended — for the first time in the case — that the R-18 classification (garden-type apartments) for which application had been made, had been changed by legislative enactment after the 1961 denial. The Court of Appeals reversed, finding no significant change in the law that would dispense with the principles of res judicata. "The new definition [of an R-18 zone],” Judge Hammond wrote, "was not formally put before us but the appellees concede that it is like the former one except that the density in an R-18 zone is decreased slightly....” Id. at 201, 216 A.2d at 158. Appellants in this case assert in their brief that the maximum allowable density of the R-18 zone in Woodlawn "was reduced by nearly 16 per cent.”

The Zoning Text Amendment in Woodlawn is significantly different from that involved in the instant case in two respects: 1) the percentage reduction in density, and 2) here, the alteration also extended to the nature and purpose of the zone. First, the density permitted in the new RT-8 classification is substantially lower than the old R-T as the following tabulation discloses:

Maximum Density Permitted Without MPDU Bonus

Maximum Density Permitted With MPDU Bonus of 20%

R-T 12.5 du/ac. 15.0 du/ac.

RT-8 8.0 du/ac. 9.6 du/ac.

Unit Reduction 4.5 5.4

Per cent Reduction 36% 36%

In addition to the density changes, the new zones established by the Ordinance of June 13, 1978, supra, divided the old R-T (townhouse category) into four separate zoning classifications "to permit more flexible use of this form of development in terms of locational aspects” as pointed out by the Hearing Examiner. It is also to be noted that the purpose clause of the townhouse zone has been altered and that the new classifications are referred to as "residential” zones rather than "multiple-family residential.” The difference between a multiple-family residential zone and one which is considered akin to traditional single-family use is significant, as appellees suggest. In our view, there is a substantial difference between the situation presented in Woodlawn and that presented in these cases and we, therefore, reject appellants’ contention that the lower court misread that case.

Judgment affirmed; appellants to pay the costs.

      . Under the MPDU program, the county requires developers who plan to build more than 50 units in a subdivision to set aside 15 per cent of them for moderate-income residents. Of that 15 per cent, the County’s Housing Opportunities Commission has the right to purchase one-third either to sell or to rent to low and moderate income households. The other two-thirds are sold directly to moderate-income families by the'developer. For setting aside the units, the developer is allowed to build 20 per cent more units than the zoning classification normally allows. Montgomery County, Md., Code, § 25A (1972, 1977 Repl. Vol., 1979 Cum. Supp.).
      The MPDU law became effective on January 21, 1974, some seven months before the District Council’s denial of applications F-872 and F-873. If the applications had been granted for R-T zoning, the density could have been increased under the 20% "bonus” provisions.

      . This Court held that density of use, the principal issue considered by the Council, was a valid consideration in determining whether the R-T zone was compatible with the adjacent R-200 zone. Certiorari was denied, 281 Md. 737, 439 U.S. 854.

      . The comprehensive report of the Hearing Examiner consumes 38 pages of the Record Extract.

      . In Montgomery County, the period is eighteen months. Montgomery County, Md., Code, § 59-H-2.23(a) (1972, 1977 Repl. Vol.).

      . The court in its oral opinion adopted as the basis for its decision a ten-page portion of the appellees’ Trial Memorandum which, inter alia, developed the point that the "RT-8 zone provides significantly lower density on the subject property than the old RT zone would have provided prior to its amendment.”

      . This figure was calculated by using the gross acreage of 22.22 acres, deducting 1.84 acres for road dedication to achieve a net developable 20.38 acres. This figure, multiplied by 9.6 units per acre (8 under the zoning ordinance and 1.6 under the MPDU law) produced the maximum theoretical development of 195 units on the subject parcels.

      . In the analysis of the applications denied in 1974, the Council accepted the Planning Board’s projection of 275 units (not including MPDU’s which would have resulted in 330 units) which was derived by multiplying 22.22 acres by the then permitted 12.5 units per acre.

      . Indeed, if the MPDU "bonus” of 20% had been added to the 275 units found to be the 1974 potential, the total number of units would have been 330. The 1974 density would thus have been 69% higher than the potential of the RT-8 applications in 1979.

      . Dwelling units per acre.

      . Having decided the merits of this appeal, we deny appellees’ motion to dismiss on grounds of mootness based upon an application for a Sectional Map Amendment made by the Maryland-National Capital Park and Planning Commission and granted by the County Council on September 30, 1980. The motion represented that under the Sectional Map Amendment the subject property was rezoned to the RT-8 classification. This representation was controverted by the appellants who maintained that the property remained in the R-200 category.


text:
    MINNICK’S, INC. v. RELIANCE INSURANCE COMPANY
    [No. 205,
    September Term, 1980.]

      Decided December 11, 1980.

    The cause was argued before Thompson, Moore and Wilner, JJ.

      Browne L. Kooken for appellant.

      Francis J. Ford, with whom was William D. Foote, Jr., on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Minnick’s, Inc. (Minnick’s), the appellant, contracted with Presley Development Company East, Inc. (Presley), to install heating systems in certain houses built by Presley. Following the installation of the systems and the completion and sale of the houses, four of the purchasers instituted actions against Presley, alleging that the heating systems were defective. The damages claimed included the costs to repair and/or replace the defective systems and the costs of using alternative heating systems while, the defective systems were inoperable. In addition, in the actions filed by Mr. and Mrs. Stephen Grace and by Mr. and Mrs. Yung-Shu Wu, damages were claimed for loss of consortium allegedly caused by Presley’s negligence and breach of warranty. In each of the actions instituted, Presley filed a third party claim against Minnick’s, alleging that the heating contractor was responsible for any negligence involved in the installation of the heating systems and that Minnick’s was liable to Presley for any judgments which might be recovered by the purchasers. Minnick’s in turn notified its liability insurance carrier, Reliance Insurance Company (Reliance), the appellee here, of the claims and requested that Reliance provide a defense. Reliance declined to do so, stating that the claims were not covered by its policy. Minnick’s then filed a declaratory judgment action in the Circuit Court for Prince George’s County seeking a declaration that Reliance was obligated under the policy to provide a defense and to pay any judgments which might be obtained in the actions. This appeal is from the decision of the Circuit Court denying the declaration sought by Minnick’s.

"It is settled law that insurance contracts must be interpreted, like other contracts, according to the sense and meaning of the terms.” United States Fidelity and Guaranty Co. v. National Paving Co., 228 Md. 40, 50, 178 A.2d 872 (1962); American Home Insurance Co. v. Osbourn, 47 Md. App. 73, 422 A.2d 8 (1980). "If the plaintiffs in the tort suits allege a claim covered by the policy, the insurer has a duty to defend.” Brohawn v. Transamerica Insurance Co., 276 Md. 396, 407, 347 A.2d 842 (1975). The policy between Reliance and Minnick’s in pertinent part provided:

"The Company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
Coverage G. personal injury or
Coverage H. property damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such personal injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient, but the company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company’s liability has been exhausted by payment of judgments or settlements.” (Emphasis added).

Under the definitions applicable to this section of the policy quoted above,

" 'occurrence’ means an accident, including continuous or repeated exposure to conditions, which results in bodily injury or property damage neither expected nor intended from the standpoint of the insured;”

and

" 'property damage” means (1) physical injury to or destruction of tangible property which occurs during the policy period, including the loss of use thereof at any time resulting therefrom, or (2) loss of use of tangible property which has not been physically injured or destroyed provided such loss of use is caused by an occurrence during the policy period; ...”

The trial court granted Reliance’s motion for summary judgment based on its determination that the actions brought by the purchasers of the houses arose out of what the court characterized as "consumer dissatisfaction” and not out of an "occurrence” as that term was defined under the policy.

We need not decide whether the damages claimed for repair and/or replacement of the heating systems and for the use of alternative heating systems can be considered to result from "property damage .. . caused by an occurrence,” for, under the exclusions contained in the policy, Reliance is relieved of liability with respect to such damages. The relevant policy exclusions are as follows:

"This insurance does not apply:

K. to property damage
(2) ... to
(d) that particular part of any property, not on premises owned by or rented to the insured,
(iii) the restoration, repair or replacement of which has been made or is necessary by reason of faulty workmanship thereon by or on behalf of the insured.
M. to loss of use of tangible property which has not been physically injured or destroyed resulting from
(2) the failure of the named insured’s products or work performed by or on behalf of the named insured to meet the level of performance, quality, fitness or durability warranted or represented by the named insured;
P. to damages claimed for the withdrawal, inspection, repair, replacement, or loss of use of the named insured’s products or work completed by or for the named insured or of any property of which such products or work form a part, if such products, work or property are withdrawn from the market or from use because of any known or suspected defect or deficiency therein; ...”

These exclusions relieve Reliance of any liability or duty to defend Minnick’s in the actions brought by the purchasers who alleged property damages only.

We are of the opinion, however, that the policy language which defines accident as "including continuous or repeated exposure to conditions, which result in bodily injury .. .” encompasses the loss of consortium claimed by the purchasers Grace and Wu. While their allegations do not explicitly set forth any claim of bodily injury, loss of consortium is a consequence of bodily injury and we consider that sufficient to obligate Reliance to provide a defense to that part of the claim. As the Court of Appeals stated in Brohawn v. Transamerica Insurance Co., supra at 408, "Even if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the policy.” (Emphasis in original). Thus, at least with respect to the damages claimed for loss of consortium, there was an "occurrence” within the meaning of the policy. See, Steyer v. Westvaco, 450 F. Supp. 384, 389 (D. Md. 1978):

"Once it is determined that the insurance policy creates a duty to defend against claims made within the policy’s coverage and it is further determined that the complaint alleges the cause of action within the policy’s coverage, the company is obligated to defend the suit, notwithstanding alternative allegations outside the policy’s coverage, until such time, if ever, that the claims have been limited to ones outside the policy coverage.”

As we stated above, the claims for loss of consortium are within the policy’s coverage and are not otherwise excluded. Accordingly, we find that Reliance does have a duty to provide Minnick’s a defense in the actions brought by the Wus and the Graces, with respect to the claims for loss of consortium.

Judgment vacated.

Case remanded for entry of a declaration in conformity with this opinion.

Appellee to pay the costs.