author: Menchine, J.,

text:
    JAMES EDWARD WARD v. STATE OF MARYLAND
    [No. 340,
    September Term, 1975.]

      Decided January 29, 1976.

      The cause was argued before Orth, C. J., and Menchine and Mason, JJ.

      Joseph S. Casula, Assigned Public Defender, with whom was Edward P. Camus, District Public Defender on the brief, for appellant.

      Michael James Kelly, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and E. Garrison Neal, Assistant State’s A ttorney for Prince George’s County on the brief, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

At about 1 a.m. on April 28, 1972, Dorothy Mae Ward, estranged wife of the appellant, and one Gerry Godbout were seated in the automobile of the latter, parked outside the wife’s apartment. A gunman approached the passenger side of the vehicle and fired five times into the vehicle. Godbout was killed; the estranged wife was not hit. The gunman ran from the scene toward a vehicle that simultaneously had pulled out of the parking lot. The latter vehicle stopped, the gunman entered, and it departed the crime scene at high speed — but not before a witness had noted its description and tag number. He telephoned police. A prompt radio alert caused police within minutes to stop an automobile operated by David Victor Maness with Harry Edward Brockman a passenger. Both were placed under arrest. At appellant’s trial Brockman was identified as the gunman; Maness as the driver of the escape vehicle.

James Edward Ward was convicted by a jury in the Circuit Court for Prince George’s County for conspiracy to murder; accessory before the fact of murder and attempted murder. He was sentenced to life imprisonment.

On appeal he asks:

“1. Was the Appellant convicted on the basis of evidence obtained by an unlawful search and seizure in violation of the Fourth Amendment to the United States Constitution?

2. Did the Lower Court commit reversible error in admitting into evidence an incriminating statement of the Appellant without a proper hearing as to its inducement?

3. Was the out-of-Court identification so impermissively suggestive and unfair as to create a substantial likelihood of irreparable misidentification so as to constitute a denial of due process of law?

4. Did the unreasonable and unjustified prosecutorial delay violate the right of the Appellant to a speedy trial under the Sixth Amendment to the United States Constitution?

5. Was there sufficient evidence produced at the trial to sustain the convictions?

1. Search and Seizure

Appellant’s complaint that items unlawfully seized were admitted in evidence against him at trial is without record support. The State concedes that a search of appellant’s home on April 28, 1972 was constitutionally infirm. It is quite clear from the record, however, that all items seized therein were returned to the appellant by court order. None was either offered or received in evidence at the trial. In a secondary complaint appellant contends that other tangible evidence offered and admitted in evidence constituted “fruits of the poisonous tree.” This complaint relates to: (1) a cassette tape “with voices discussing the items taken during the illegal search and seizure”; (2) “a letter [Exhibit 5] found subsequent to the initial search”; and (3) “a note [Exhibit 6] fourfd during a search of Mr. Maness’s car (an alleged co-conspirator).” We find no taint stemming from the unlawful seizure attaching to those items.

The Cassette Tape

The cassette tape was found by the appellant’s daughter in August, 1974 and thereafter was delivered by the wife to police authorities. The record shows not the slightest evidence of State complicity in the seizure of the item. It was properly admitted in evidence. Coolidge v. New Hampshire, 403 U. S. 443, 487, 91 S. Ct. 2022, 2048, 29 L.Ed.2d 564, 595 (1971). In Herbert v. State, 10 Md. App. 279, 284-85, 269 A. 2d 430, 432-33 (1970), we said:

“Whatever wrong is done by the act of one individual in taking the property of another, it is no invasion of the security afforded by the Fourth Amendment against unreasonable searches and seizures. Burdeau v. McDowell, supra, at 475. When an individual obtains incriminatory matter from an accused, no matter how improperly, and such matter comes into the possession of the government without a violation of the accused’s rights by governmental authority, the exclusionary rule does not prohibit its use at trial.” (Footnote omitted)

The Letter and the Note

The letter, contrary to appellant’s claim, was in the possession of police months before the unlawful search of appellant’s premises. It had been addressed to the Chairman of the Prince George’s County Human Relations Committee and bore the signature of the appellant. The typed letter consisted of a diatribe against the Committee for an attack by it upon the Prince George’s County Police Department. The letter ended as follows, “Why don’t you lousey BASTARDS doues [sic] yourselves with gasoline. I will gladly apply the match.”

The note, also typewritten, was found during the course of a lawful search of the Maness vehicle. That search occurred prior to the unlawful search of appellant’s home and had no connection therewith. This note contained a description of the wife of the appellant; designated the location of her place of employment; listed the hours of her arrival at and her departure from the place of employment; and set forth the make, tag number and ownership of an automobile that might be used to transport her from work to her home. The note also gave the address and location of the apartment occupied by appellant’s wife. When the State offered the testimony of an expert FBI witness, an objection was interposed.

At that point the trial court and counsel at a bench conference discussed the intended purpose of the witness’s testimony and limitations to be imposed upon it. The following extracts from the record suffice to show the full tenor of the objection; the nature of an inquiry conducted out of the presence of the jury; and the ultimate opinion of the witness before the jury:

“MR. DAWSON: Your Honor, the reason I said before, this gentleman has the typewriter. The typewriter was taken from Mr. Ward’s home, which was suppressed, was used in trying to identify these two letters. That is the reason for my objection. This is doing indirectly what they could not do directly.

MR. NEAL: Your Honor, the two letters were presented to this man for comparison and the two letters were compared, Your Honor. We will not bring out any testimony concerning the typewriter.

THE COURT: The typewriter was not presented.

MR. NEAL: Your Honor, the typewriter was presented to him at one time, but the typewriter was checked out against the letters, but we will elicit no testimony from an item which has been seized. The only thing we are asking for is a letter which came to the police department from an independent source and a letter which was found in Mr Maness’ car.

Now, he was asked to compare these two letters, and it is only that testimony —

THE COURT: But you are not referring to any knowledge he gained by virtue of examining the typewriter?

MR. NEAL: No, Your Honor. The only thing we are bringing into it is two questioned documents, no typewriter whatsoever.

MR. DAWSON: But Your Honor, he used the typewriter to check out whether or not these letters could have been typed on the same typewriter. That typewriter was suppressed in 1972.

THE COURT: But he is not going to use anything in regard to the typewriter.

MR. DAWSON: He is using it indirectly.

THE COURT: He cannot use it in any way. He is only using it in comparison of those two letters, without regard to the typewriter.

MR. DAWSON: But he had the typewriter and used it in comparison.

THE COURT: He does not have to develop everything that the man might know. His proffer is that he is only going to use what the man gained from looking at these two letters, without regard to any examination of the typewriter. Now that is his proffer, is it not?

MR. NEAL: That’s correct, Your Honor.

THE COURT: I am going to hold him to that. For that reason it does not even go into the unlawful search and seizure. It is just like he had never seen the typewriter.

MR. DAWSON: Your Honor, when he took that typewriter in, incorporated evidence in regard to this evidence from the typewriter —

THE COURT: He says he did not.

MR. DAWSON: Could we ask the gentleman out of the hearing of the jury?

* * *

THE COURT: I intend to do that.

THE COURT: If you gave us here an opinion today though to the jury, it would not be based on any examination of anything you have done with any typewriter that has been suppressed in this case?

THE WITNESS: That’s correct.

Q Did the fact that you had the — physically had the typewriter add to or detract in any way the comparison of State’s Exhibits 5 and 6, the two letters?

A It does not. The comparisons of State’s Exhibits 5 and 6 compared item for item, the typewriting on 6 with the typewriting on 5 I made independently of the typewriter, and it had no bearing on my conclusion relative to that comparison.

THE COURT: But solely from a comparison of the characteristics of the letters used in both of those letters?

THE WITNESS: That is correct.

THE COURT: Under that basis I will let it in.

MR. DAWSON: Objection.

THE COURT: Overrule.

Return the jury.

Q Mr. Shaneyfelt, could you step down here and by the use of these two charts that you photographed explain to the ladies and gentlemen of the jury what you found and what your conclusion was?

A Yes, I would. Now, State’s Exhibit 44, on the right as you are looking at it is an enlargement of the typewriting appearing on State’s Exhibit 6. The typewriting on State’s Exhibit 45, which is on your left as you see it, is the top portion down to that top portion of State’s Exhibit 5.

In making this comparison of the typewriting that I mention I make the letter formations that this is a rare — this is a script type of type, that are not awfully common, in too common a use that has the script type letters, the formation like this.

I find those same letter formations in both specimens. The ‘m’s’ and ‘w’s’ in comparing them, W’ in Washington, not always the same letter appears, but a sufficient number appears as — and the ‘p’s’, I find in both specimens to be the same. The ‘g’ is like a written ‘g’ or a script ‘g’. You find those ‘g’s’ in midnight. These, I found all of the same characteristics in both State’s Exhibit 6 and State’s Exhibit 7. The type style is the same. There is no variances.

I then looked for broken letters and the things of a more individual nature and I find that there is very little difference in alignment. One of the things I look for is a letter printing too high or too low or to the right or to the left of a bent letter. I find that the typewriter does not have any misalignment to speak of, anything that is significant enough to arrive at any decision.

The manner in which letters attach together, where the ‘t’ attaches to the T, whether or not it just about hits or doesn’t quite hit as it connects there, I find that they are all within normal limits. I find no significant differences that would let me say that this typewriter is different from that one.

At the same time, I find everything similar. I find everything — alignment is the same and in making comparisons of typewriting, if I have two specimens that develop to be different I do find these differences in alignment, and in this instance I find no differences in alignment. These are right along the line. There are no variations that are present here that are not present over here. Everything lines up very much the same.

In addition, the ‘o’s’, I find tend to type a little bit of design of the ribbon texture in the State’s Exhibit 6 and I find that same characteristic in ‘o’s’ and ‘a’s' in the center of the ‘a’s’ on there, indicating about the same pressure of typewriting.

While I found no differences and not enough individuality to permit positive identification it was my conclusion that State’s Exhibit 5 and State’s Exhibit 6 could have been typed on the same typewriter.

Q Were there any differences at all?

A I found no differences at all, no differences at all.”

We think it. is quite plain that the questioned documents were not derived from the unlawful search and were not “fruits of a poisonous tree.” We find that the circumstance that the witness had once possessed the illegally seized typewriter and had conducted other tests upon it, did not prevent him from expressing the opinion that the two exhibits were products of the same mechanical device.

The answer to appellant’s first question is: No, he was not convicted on the basis of evidence obtained by unlawful search and seizure.

2. The Appellant’s Statement

The co-conspirator Maness, in the course of discussions relating to plea bargaining at his trial for the murder, agreed to testify as to appellant’s complicity in the killing. On July 9, 1974 Maness gave a deposition that implicated Ward as the person who had initiated a contract to have Brockman murder Mrs. Ward. On July 10, 1974 a warrant was issued for the appellant, and he was arrested at the place of his employment. He was taken forthwith to police headquarters where he was made aware of the full panoply of Miranda rights. He waived his Miranda rights and agreed to interrogation by police.

When the State manifested an intention to offer the written statement in evidence the trial court dismissed the jury and conducted a suppression hearing out of their presence. Barhart v. State, 5 Md. App. 222, 246 A. 2d 280 (1968). In the course of that hearing it was made crystal clear that the State was not proposing to offer in evidence any statement other than that which had been made on July 10, 1974. At the conclusion of the suppression hearing, the court found that the statement was “voluntarily entered into, intelligently, knowingly, understanding^.” It subsequently was admitted in evidence.

In a second string to his bow, appellant further contends that the statement was a “fruit of the poisonous tree,” citing Wong Sun v. U. S., 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963), and Everhart v. State, 21A Md. 459, 337 A. 2d 100 (1975). Those cases clearly do not bar the use of the subject statement. The previously described letter and note constituted the only tangible evidence shown to him on that date during the course of his interrogation. We have heretofore pointed out that those documents were in no way connected with the search and seizure of April 28, 1972. Thus, there is no record support for appellant’s contention that he was confronted with the fruits of that unlawful search and seizure. The arrest, interrogation and statement of the appellant on July 10, 1974 were products solely of information gained from the co-conspirator Maness on the previous day. The statement of July 10, 1974 is in no sense a product of primary illegality. Rather, it falls within the exception outlined in Wong Sun, supra, at 487-88 [417] [455]:

“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged for the primary taint.’ Maguire, Evidence of Guilt, 221 (1959).”

The statement of July 10, 1974 was properly admitted in evidence.

3. Identification

When it became apparent that the State would seek an in-court identification of the appellant by the witness Maness, an objection was interposed. In accordance with procedures approved in Smith & Samuels v. State, 6 Md. App. 59, 250 A. 2d 285 (1969), cert. den. 397 U. S. 1057 (1970), the trial judge suspended proceedings before the jury and conducted a hearing out of their presence. At its conclusion the trial judge declared that he would permit the identification testimony. The jury was then recalled and the witness Maness without objection made an in-court identification. He also testified, again without objection, that he previously had identified photographs of the accused. The identification issue was waived. Jones v. State, 9 Md. App. 455, 457, 265 A. 2d 271, 272-73 (1970), cert. den. 400 U. S. 906 (1970).

4. Speedy Trial

In depth consideration of speedy trial decisions of the Supreme Court of the United States; of the Court of Appeals of Maryland; and of this Court was undertaken by the Court of Appeals in the case of Epps v. State, 276 Md. 96, 345 A. 2d 62 (1975). Judge O’Donnell, for the Court, summarized the holding in Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972), saying at 104 [68-69] of Epps:

“In 1972, the Supreme Court, in Barker v. Wingo, 407 U.S. 514 (1972), pointed out that ‘[t]he right to a speedy trial is generically different from any of the other rights enshrined in the Constitution for the protection of the accused’ and that ‘[i]n addition to the general concern that all accused persons be treated according to decent and fair procedures, there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to the interest of the accused.’ It then postulated that ‘the right to [a] speedy trial is a more vague concept than any other procedural rights,’ that it is ‘impossible to determine with precision when the right has been denied’ 407 U.S. at 519, 521, and concluded that although a defendant’s constitutional rights to a speedy trial cannot be established by any inflexible rule, the denial of the right must be determined on an ad hoc basis balancing both the conduct of the prosecution and that of the defendant. In enunciating such a ‘balancing test’ the Court identified four factors as criteria in determining through a ‘functional analysis’ whether or not a particular defendant has been denied this Sixth Amendment right.”

Judge O’Donnell then discussed the distillate of Maryland decisions preceding Barker v. Wingo, pointing out that with a single exception the Maryland standards were identical with it. He then enunciated the course to be followed, in the light of Barker v. Wingo, supra, when courts are confronted by an alleged infringement of speedy trial rights assured by the Sixth Amendment. He said at 108-09 [71] oí Epps:

“Antecedent to the holdings in Barker v. Wingo, supra, from a massive corpus of case law — in both this Court and in the Court of Special Appeals certain fundamental principles had been thoroughly distilled. Pre-eminent was that the right to a speedy trial is relative and that the time within which trial must be held to satisfy the constitutional guarantee depends on the facts and circumstances of each particular case; that in evaluating those facts and circumstances on a case-by-case basis four factors came into play. They were: (1) the length of the delay, (2) the reason for the delay, (3) prejudice to the accused and (4) waiver by the accused. See State v. Lawless, 13 Md. App. 220, 226-27, 283 A.2d 160, 166 (1972) and cases therein cited at n. 5, 6. Save for the one factor of ‘waiver by the accused’ the standards applied were identical to those later enumerated in Barker.
“Subsequently, the Barker-Wingo ‘balancing test’ and its criteria have been consistently applied by the Court of Special Appeals. See State v. Hunter, 16 Md. App. 306, 314-15, 295 A.2d 779, 783 (1972), pointing out that the Supreme Court in Barker had rejected ‘the rule that a defendant who fails to demand a speedy trial forever waives his right’ and had stated that ‘the better rule is [that] the defendant’s assertion of, or failure to assert, his right to a speedy trial is one of the factors to be considered.’ See also State v. Jones, 18 Md. App. 11, 16-18, 305 A. 2d 177, 180-81 (1973) which noted that ‘[i]n the first full analysis of the speedy trial right ever undertaken by the Supreme Court, Barker ameliorated the foreclosing effect of waiver, in one of its aspects at least,’ when it rejected the ‘demand-waiver doctrine’ but further observed ‘that a defendant’s conduct which causes delay will not redound to the detriment of the State, whether the result is reached by simply subtracting this time period from the “delay” factor ab initio or by considering it as “waiver,” by affirmative conduct.’
“In making our independent constitutional appraisal of whether the appellant was denied his constitutional right to a speedy trial we must under the holding in Barker v. Wingo ‘engage in a difficult and sensitive balancing process’ in which ‘the conduct of both the prosecution and the defendant are weighed’ and ‘considered together with such other circumstances as may be relevant’ the four enumerated and related factors. 407 U.S. at 533. Realizing that Barker ‘prescribes “flexible” standards based on practical considerations,’ Strunk v. United States, supra, at 438, and that the ‘right to a speedy trial is not a theoretical or abstract one but one rooted in hard reality in the need to have [the] charges promptly exposed’ Dickey v. Florida, 398 U.S. 30, 37 (1970), we must determine whether the State did ‘discharge its “constitutional duty to make a diligent, good-faith effort to bring [Epps] [to trial Moore v. Arizona, supra, at 26; Smith v. Hooey, supra, at 383.”

(a) The Delay

The period of delay to which the Court’s consideration of the speedy trial issue must be addressed is the period that the accused was subjected to actual restraints imposed by arrest up until his case is tried. Epps, supra, at 109 [71-72].

Appellant initially was arrested on April 28, 1972. He was brought to trial on February 5, 1975. He argues that this entire period is to be counted against the State.

For reasons that will become apparent, we shall divide the delay into three periods of time, namely:

(1) April 28,1972 to June 29,1972;

(2) June 30,1972 to July 9,1974;

(3) July 10,1974 to February 5, 1975.

We regard the totality of this interval to be “sufficiently inordinate to constitute a ‘triggering mechanism’ to engage in the ‘sensitive balancing process’ of reviewing” the causes of delay. Epps, supra, at 111 [72].

(b) Reasons for Delay

(1) April 28, 1972 — June 29, 1972

Appellant initially had been arrested on April 28, 1972. The charges against him were dismissed by the State at preliminary hearing on June 29, 1972 for want of probable cause for continued prosecution. There is nothing in the record to suggest an ulterior motive of the State in that dismissal. We find that period well within the bounds of a reasonable and proper interval for the State, in a murder case of this complexity, to examine the evidence then available to it and to make the judgment whether charges against Ward should be dismissed. This period clearly was a justifiable delay, not to be counted against the State. Epps, supra, at 111 [72-73].

(2) June SO, 1972 — July 9, 1974

Appellant maintains that the period between the date of preliminary hearing — June 29, 1972 — and the date of his second arrest must be counted against the State.

The dismissal of charges on June 29, 1972 terminated all State proceedings against Ward.

Ward was re-arrested on July 10, 1974. In such circumstances the language used in Hoffa v. U. S., 385 U. S. 293, 87 S. Ct. 408, 17 L.Ed.2d 374 (1966), at 310 [417] [386], is particularly pertinent:

“There is no constitutional right to be arrested. The police are not required to guess at their peril the precise moment at which they have probable cause to arrest a suspect, risking a violation of the Fourth Amendment if they act too soon, and a violation of the Sixth Amendment if they wait too long. Law enforcement officers are under no constitutional duty to call a halt to a criminal investigation the moment they have the minimum evidence to establish probable cause, a quantum of evidence which may fall far short of the amount necessary to support a criminal conviction.”

The Maness disclosures of July 9, 1974 provided the State — for the first time — a quantum of evidence sufficient to support a conviction of Ward. His subsequent arrest caused his reemergence as an accused within the meaning and effect of U. S. v. Marion, 404 U. S. 307, 92 S. Ct. 455, 30 L.Ed.2d 468 (1971). Marion had pointed out that:

«* * * jg ejther a formal indictment or information or else the actual restraints imposed by arrest and holding to answer a criminal charge that engage the particular protections of the speedy trial provision of the Sixth Amendment.” (Emphasis added.) 404 U. S. at 320 [463] ]479].

after having earlier declared:

“[Appellees] claim that their rights to a speedy trial were violated by the period of approximately three years between the end of the criminal scheme charged and the return of the indictment; it is argued that this delay is so substantial and inherently prejudicial that the Sixth Amendment required the dismissal of the indictment. In our view, however, the Sixth Amendment speedy trial provision has no application until the putative defendant in some way becomes an ‘accused,’ an event that occurred in this case only when the appellees'were indicted on April 21, 1970.” 404 U. S. at 313, [459] [474],

In the absence of any evidence tending to show that the State released the appellant in order to further its own interests or to damage by delay the interests of the appellant, we hold that for the reasons hereafter stated, this time period does not constitute delay within the purview of a speedy trial analysis.

There is not a scintilla of evidence that the State did or with reasonable diligence could have come into possession of evidence further incriminating to Ward before the disclosures made by Maness during the course of the latter’s trial for the murder on July 9, 1974. We again stress that the State caused the initial charges to be dismissed on June 29, 1972 because of a lack of probable cause at that time for the prosecution to be pursued. The good faith of the State is made manifest by the fact that this dismissal had occurred many months before Chief Judge Northrop of the United States District Court for the District of Maryland had suppressed in a Federal prosecution of Ward for possession of illegal firearms, the evidence obtained in the unlawful search of April 28, 1972. The appellant had made no effort in a State court to suppress the seized property prior to indictment. See Maryland Rule 729 b 2.

In summary, the record shows: (a) that all State charges against Ward had been dismissed during this period and (b) the absence of any evidence that the dismissal was contrived by the State for an unworthy purpose.

We conclude, accordingly, that Ward was not an accused at any time during the period now under discussion within the meaning of Marion and Epps, both supra. Thus, this period is of no significance in the “balancing test.” We consider the cases of Pitts v. North Carolina, 395 F. 2d 182 (4th Cir. 1968) and Hanrahan v. U. S., 348 F. 2d 363 (D.C. Cir. 1965) cited by appellant, to be inapposite. See: Montgomery v. State, 4 Md. App. 473, 479, 243 A. 2d 620, 624 (1968).

(3) July 10, 1971, to February 5, 1975

Ward was indicted on July 17, 1974. On September 13, 1974 the case was assigned for trial on November 19,1974.

Counsel for appellant had filed a motion for discovery and inspection on August 8, 1974. The motion was extremely broad in scope, going far beyond the permissible range authorized by Maryland Rule 728. When the State did not answer the motion, the appellant on November 13,1974 filed a second motion seeking an order to compel the State to answer. The record does not reflect that any court action was taken on either motion. This delay, if delay it is, quite clearly is attributable to the fault of both appellant and the State.

The trial court continued the case on November 18, 1974 at the request of the State. The stated grounds of the State’s motion were:

“1. That the jury panel which tried the co-defendant Harry E. Brockman Criminal Trial 12416, in a week long trial from October 21 through the early morning hours of October 26 is sitting on jury duty this week.
2. That the co-defendant was convicted of murder in the first degree in a case which received considerable publicity from the local press.
3. That the Assistant State’s Attorney assigned to this case has been advised that there has been much discussion amongst members of the panel in the prior case and the results of the trial.
4. The defendant has on this date filed a Motion for a Speedy Trial which motion the State does not object to.
5. That the trial date of November 19, 1974, is the first trial date set in this case.”

There is nothing in the record to indicate that the cited factors were untrue. The case was immediately rescheduled for and was tried on February 5,1975.

(c) Defendant’s Assertion of Right

Defendant’s demand for a speedy trial was first asserted on November 15, 1974. He filed a motion to dismiss the indictment on January 31, 1975. The motion was denied prior to commencement of the trial on February 5,1975.

(d) Prejudice to the Defendant

Appellant’s claim of prejudice asserts only (a) “That the State delayed Defendant’s case until the only witness, Jesse Stephens, who could clear him died” and (b) “That said long delay from April 28th, 1972 to present January 1975 is an unconscionable delay that has deprived Defendant of his ability to Defend himself.” The record shows that the witness Stephens died in 1973.

The Balancing

The accountable period of delay is from July 10, 1974 to February 5, 1975. Appellant was indicted on July 17, 1974. Trial initially was set for November 19, 1974. We do not regard that interval as inordinately protracted in a case of this complexity. There is no evidence that this portion of the delay was “purposeful or oppressive.” Pollard v. U. S., 352 U. S. 354, 361, 77 S. Ct. 481, 486, 1 L.Ed.2d 393, 399 (1957).

The delay from November 19, 1974 to February 5, 1975 is, of course, attributable exclusively to the State. The State’s motion for continuance, however, attributed its action in large measure to a desire to assure that the accused receive a fair and impartial trial by an unprejudiced jury. There is no evidence controverting the factual basis recited as the cause of that motion.

In balancing the other factors we have noted that appellant did not assert his right to a speedy trial until November 15, 1974. The only particularized suggested prejudice is said to have arisen as a result of the death of Stephens. The assertion that Stephens — himself charged as an accomplice in the murder — somehow would “clear” Ward of complicity in the offense is at best the purest conjecture, and must be considered in the light of the circumstance that the co-conspirator Brockman declined to testify on Fifth Amendment grounds when called as a witness by the appellant. More importantly, even if we assume that Ward was prejudiced by the death of Stephens, it is plain that such prejudice was not the product of any State transgression. His death occurred in 1973 — during the period excluded from our speedy trial inquiry. The bald statement that delay “has deprived Defendant of his ability to Defend himself” is not supported by other specific claims of harm.

The appellant was on bail from the time of his indictment until the time of his conviction. He had been admitted to bail, as well, during the period between initial arrest and dismissal.

After balancing all factors, we conclude under our constitutionally mandated examination of the entire record, that the appellant was not denied his constitutional right to a speedy trial.

(5) Sufficiency of Evidence

We find this issue to be frivolous. There is abundant evidence: (1) that appellant conspired with others to cause the murder of his wife; (2) that Gerry Godbout was killed by one of the co-conspirators in the ensuing attempt to kill her; and (3) that appellant was an accessory before the fact of that murder.

Judgments affirmed.

      . The note described the owner as “Godbout, Jr.” The victim of the murder was Gerry Godbout.

      . The intended victim was unharmed. Her male companion was killed in the attempt to kill her. By transferred intent that killing was murder. Gladden v. State, 20 Md. App. 492, 316 A. 2d 319 (1974).

      . Compare: State v. Wynn, 26 Md. App. 39, 336 A. 2d 800 (1975).

      . See: Erbe v. State, 276 Md. 541, 350 A. 2d 640.

      . Chief Judge Northrop passed the suppression order on August 20, 1973.

      . In Smith v. United States, 360 U. S. 1, 10, 79 S. Ct. 991, 997, 3 L.Ed.2d 1041, 1048 (1959), it was said: “While justice should be administered with dispatch, the essential ingredient is orderly expedition and not mere speed.”
      In State v. Dubose, 17 Md. App. 292, 299, 301 A. 2d 32, 35 (1973), it was said: “The charge was murder, and such a crime tolerates more delay in any event than a less serious offense.”


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    STATE OF MARYLAND v. WILLIAM FEARING, ALBERT HERRMANN, STEPHEN LAI, JOHN DUER MOORES, JONAS COHEN, HUMBERTO CERTEZA and MELVIN F. POLEK
    [No. 121,
    September Term, 1975.]

      Decided January 30, 1976.

      The cause was argued before Moylan, Menchine ana Lowe, JJ.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Richard Cremin, Assistant State’s Attorney for Baltimore City on the brief, for appellant.

      Alan I. Baron for appellee Jonas Cohen. Read K. McCaffrey, with whom were George D. Solter and Whiteford, Taylor, Preston, Trimble & Johnson on the brief, for appellee John Duer Moores. Russell Smouse for appellee Stephen Lai. Submitted on brief by Edwin M. Henry, Jr. and Preston A. Pairo, Jr., for appellee William Fearing. George J. Helinski for appellee Melvin F. Polek. Peter G. Angelos for appellee Humberto Certeza. Alvin Solomon and Victor W. Fuentealba for appellee Albert Herrmann.
   Moylan, J.,

delivered the opinion of the Court.

This case involves an interpretation of the Controlled Dangerous Substances Act, which was modeled on and taken virtually verbatim from the proposed draft of the Federal Controlled Substances Act and made a part of Maryland law by virtue of Chapter 403 of the Acts of 1970, which became effective on July 1, 1970. The appellees William Fearing, Albert Herrmann, Stephen Lai, John Duer Moores, Jonas Cohen, Humberto Certeza and Melvin F. Polek, are all medical doctors licensed to practice in the State of Maryland. On July 26, 1974, the Grand Jury of Baltimore City returned numerous multi-count indictments against the appellees charging them with violations of the Controlled Dangerous Substances Act. All of the appellees moved to have the indictments dismissed and, after full hearings on the motions on December 3, 1974, the indictments were dismissed in the Criminal Court of Baltimore on December 27, 1974.

Pursuant to Courts and Judicial Proceedings Article, § 12-302 (c), and State v. James, 203 Md. 113, 100 A. 2d 12, the State has taken a timely appeal.

I.

Of the 35 indictments involved in the dismissal hearing, five were single-count indictments charging the appellees Moores, Fearing, Cohen, Herrmann and Certeza with conspiracy to violate § 286 (a) (1). Each of the remaining 30 indictments was in seven counts, with the first, second, fifth and sixth counts charging substantive violations of § 286 (a) (1). All of these substantive counts, as well as all of the conspiracy indictments, were dismissed because of the hearing judge’s conclusion that § 286 (a) (1) does not apply to medical practitioners.

Section 286 (a) (1) provides:

“(a) Except as authorized by this subheading, it shall be unlawful for any person:
(1) To manufacture, distribute, or dispense, or to possess a controlled dangerous substance in sufficient quantity to reasonably indicate under all circumstances an intent to manufacture, distribute, or dispense, a controlled dangerous substance;”

The thrust of the judge’s ruling and of the appellees’ argument both here and below was that since § 288 dealt with “certain unlawful acts particularly applicable to registrants” (that is, licensed medical practitioners), that section preempted the field so far as medical practitioners were concerned. That argument took the position that practitioners are exempt from the provisions of § 286, which apply to ordinary laymen, and may be proceeded against only under § 288. The contrary argument of the State is that § 286 applies to all who violate its general provisions, laymen and practitioners alike, and that § 288 applies additional proscriptions against medical practitioners.

The opinion of the hearing judge and the arguments of the appellees before us relied heavily upon the majority opinion of Chief Judge Bazelon in United States v. Moore, 505 F. 2d 426 (D. C. Cir. 1974). Interpreting counterpart provisions of the Federal Controlled Substances Act, the United States Court of Appeals ruled that a licensed physician could be proceeded against only under the specific provision of that Act dealing with licensed physicians. The State, both at the hearing below and before us, relied persuasively upon the dissenting opinion of Judge MacKinnon which argued vigorously that when physicians knowingly and unlawfully violate the general provisions of the criminal law, they are not exempted from the coverage of that law by virtue of their occupational status.

Since the decision of the hearing judge below and, indeed, since oral argument before us, the Supreme Court has stepped in and removed all ambiguity. In United States v. Moore, 18 Cr. L. 3025, decided on December 9, 1975 (the very case relied on below), a unanimous Supreme Court, speaking through Justice Powell, reversed the United States Court of Appeals for the District of Columbia and agreed with the dissenting opinion of Judge MacKinnon. The holding was very precise:

“The United States Court of Appeals for the District of Columbia reversed the conviction of respondent, a licensed physician registered under the Act, on the ground that he was exempted from prosecution under § 841 [the counterpart provision to our § 286 (a) (1)] by virtue of his status as a registrant. We reverse and hold that registered physicians can be prosecuted under § 841 when their activities fall outside the usual course of professional practice.”

After considering the argument in that case, which was framed in terms indistinguishable from the argument before us, the Supreme Court concluded:

“But we think it immaterial whether Dr. Moore also could have been prosecuted for his violation of statutory provisions relating to dispensing procedures. There is nothing in the statutory scheme or the legislative history that justifies a conclusion that a registrant who may be prosecuted for the relatively minor offense of violating § 829 [the counterpart provision to our § 288] is thereby exempted from prosecution under § 841 for the significantly greater offense of acting as a drug ‘pusher’.”

We hold that the hearing judge was in error in dismissing the indictments and the counts charging conspiracy to violate and substantive violations of § 286 (a) (1).

II.

The hearing judge dismissed the fourth and seventh counts of each of the multi-count indictments for a different reason. These counts dealt with the conduct of the physicians as physicians, charged violations of § 288 (c) dealing, inter alia, with unlawful prescribing of controlled dangerous substances, and were subject to the provisions of § 288 (b):

“(b) Any person described hereinabove who violates this section is punishable by a civil fine of not more than Fifty Thousand Dollars ($50,000). Provided, that if the violation is prosecuted by an information or indictment which alleges that the violation was committed knowingly or intentionally, and the trier of facts specifically finds that the violation was committed knowingly or intentionally, such person shall be deemed guilty of a misdemeanor and punished by imprisonment, upon conviction, for not more than two (2) years or a fine of not more than One Hundred Thousand Dollars ($100,000) or both.”

These counts did not allege that the violations were committed “knowingly or intentionally.” By virtue of that fact and the clear direction of the statute, an adjudicated violator would not “be deemed guilty of a misdemeanor and punished by imprisonment . . . for not more than two (2) years or a fine of not more than One Hundred Thousand Dollars ($100,000) or both” but would be subject only to “a civil fine of not more than Fifty Thousand Dollars ($50,000).” (Emphasis supplied) The judge’s ruling went further and concluded that in the absence of the allegation that the violations were committed “knowingly or intentionally,” the violation was not even criminal in nature and should not have been a subject for grand jury indictment.

The Maryland law is singularly unenlightening and the phrase “a civil fine” would be annoyingly cryptic if we did not have the parent provisions of the Federal Act for guidance. The Maryland Controlled Dangerous Substances Act does not spell out for us what is meant by the enigmatic reference to “a civil fine” sandwiched between criminal provisions; it does not make it clear whether one proceeds by the normal criminal processes but is simply limited to the lesser penalty; it gives no guidance as to the machinery for assessing or collecting such “a civil fine.” Since the phrase “a civil fine” is taken from the Federal Act, however, we conclude that the Maryland Legislature meant the phrase to have whatever meaning it had in the parent Federal Act. We look, therefore, to 21 U.S.C., § 842, which makes explicit (in subsection (3)) that which in the Maryland law is hardly even implicit. Section 842 provides, in pertinent part:

“(c) (1) Except as provided in paragraph (2), any person who violates this section shall, with respect to any such violation, be subject to a civil penalty of not more than $25,000. The district courts of the United States . . . shall have jurisdiction in accordance with section 1355 of Title 28 to enforce this paragraph.
(2) (A) If a violation of this section is prosecuted by an information or indictment which alleges that the violation was committed knowingly and the trier of fact specifically finds that the violation was so committed, such person shall, except as otherwise provided in subparagraph (B) of this paragraph, be sentenced to imprisonment of not more than one year or a fine of not more than $25,000, or both.
(3) Except under the conditions specified in paragraph (2) of this subsection, a violation of this section does not constitute a crime, and a judgment for the United States and imposition of a civil penalty pursuant to paragraph (1) shall not give rise to any disability or legal disadvantage based on conviction for a criminal offense.” (Emphasis supplied)

For further guidance as to how “a civil penalty” is treated under the Federal Act, we look to § 1355 of Title 28, referred to in § 842 above. That § 1355 provides, in pertinent part:

“The district courts shall have original jurisdiction ... of any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress.”

The Reviser’s Note to this section points out that the word “fine” was inserted into this section dealing with civil provisions, despite its criminal connotations, because of “the many provisions in the United States Code for fines which are essentially civil.” The Reviser’s Note then makes further reference to § 2461, which provides, in pertinent part:

“(a) Whenever a civil fine, penalty or pecuniary forfeiture is prescribed for the violation of an Act of Congress without specifying the mode of recovery or enforcement thereof, it may be recovered in a civil action.”

We conclude that proceeding by way of criminal indictment or information is appropriate under § 288 only when the violator is charged with having perpetrated the unlawful act “knowingly or intentionally” as provided by subsection (b). Other violations under § 288 without that necessary mens rea are not criminal in nature. The fourth and seventh counts of the multi-count indictments were, therefore, properly dismissed.

III.

There remains but to consider the dismissals of the third counts of the multi-count indictments. Those counts charged violations of § 288 (c), which provides, in pertinent part:

“It is unlawful for any practitioner to prescribe, administer, manufacture, distribute, dispense, or possess any controlled dangerous substance or controlled paraphernalia except in the course of his regular professional dutiés, and in conformance with both the provisions of this subtitle and the standards of his particular profession relating to 'any such controlled dangerous substance or cbntrolled paraphernalia.”

The third counts do contain the necessary words “knowingly or intentionally” so as to charge a criminal offense. The appellees claimed below as they do now, and the hearing judge ruled, that a material element of the offense was not charged because of the failure of the third counts to allege that each of the appellees was a “practitioner.” It would undoubtedly have been preferable if the word “practitioner” had been included in the indictment. It was apparently left out inadvertently. It is for us to consider whether that omission is fatal to the charge. We are guided in this regard by the. law set out in Baker v. State, 6 Md. App. 148, 156-157, 250 A. 2d 677:

“The general rule is that an indictment charging an offense denounced and defined by statute should be as fully descriptive of the offense as is the language of the statute and should allege every substantial element of the offense as defined by the statute without material diversion or departure from, the fair intendment of the terms of the statute, and with reasonable particularity of time, place and circumstances.
‘It is not necessary that an indictment contain all the language of the statute on the subject; all that must be alleged is that which is requisite to charge the offense, or that which constitutes the essential ingredients of the offense as denounced by the statute. Words may be omitted if they are necessarily implied from those contained in the charge. * * * An indictment or information for such an offense is sufficient if it follows the language of the statute substantially or charges the offense in equivalent words or others of the same import if the defendant is thereby fully informed of the particular offense charged, and the court is enabled to see therefrom on what statute the charge is founded. * * * The statutory offense should be laid with the certainty of the statutory terms but should not be prolix, involved and obscure.’ 4 Whartons’s Criminal Procedure, § 1794, pp. 618-619 and § 1796, pp. 622-624.”

The third counts in question did contain the following predicates:

“. . . did unlawfully, knowingly and intentionally prescribe a Controlled Dangerous Substance of Schedule II, to wit: Dilaudid, which is a narcotic drug not in the course of his regular professional duty, not in conformance with the standards of the Medical Profession, and not in conformance with the provisions of the Maryland Controlled Dangerous Substances Act.. .”

We hold that the phrases “not in the course of his regular professional duty” and “not in conformance with the standards of the Medical Profession” necessarily implied the missing term “practitioner” and did serve to put the appellees on notice of the offense with which they were charged.

The appellee Moores raises an additional ground for dismissing the indictments against him. The appellee was summoned to appear before the Baltimore City Grand Jury on May 21, 1974, “to testify concerning certain matters now under investigation by the Grand Jury.” Pursuant to that summons, he appeared and testified concerning the matters for which he was later indicted. In the appellee’s motion to dismiss below, he contended, inter alia, that he was a “compelled witness” before the grand jury that indicted him and that he is, therefore, exempt from prosecution under the instant indictments pursuant to Article 27, § 298 (c), which provides:

“Witnesses’ immunity. — No person shall, upon pain of contempt of court, refuse to testify concerning any violations of the provisions of this subheading [Controlled Dangerous Substances] because his testimony might tend to incriminate him or implicate him in such violations and every such person shall be a competent witness and compellable to testify against any person who may have committed any of the offenses set forth under this subheading, provided that any person so compelled to testify on behalf of the State in any such case shall be exempt from prosecution, trial and punishment for any and all such crimes and offenses about which such person was so compelled to testify.”

He maintains further that he did not waive that immunity from prosecution.

After dismissing the indictments on the grounds previously discussed in this opinion, the hearing judge stated:

“I would also like to state for the record that had the issue been reached, I would have found defendant John Duer Moores a compelled witness under Article 27, section 298 (c), and thus exempt from prosecution on all crimes which he testified about before the Grand Jury.”

The appellee urges us to apply Md. Rule 1085 and to consider this issue. Md. Rule 1085 provides in pertinent part:

“This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court; but where a point or question of law was presented to the lower court and a decision of such point or question of law by this Court is necessary or desirable for the guidance of the lower court or to avoid the expense and delay of another appeal to this Court, such point or question of law may be decided by this Court even though not decided by the lower court.”

Because this point was fully argued by both the State and the appellee Moores at the hearing on the motion to dismiss, we deem it advisable in the interest of justice and to conserve time and expense to consider it at this time.

We believe the appellee Moores was “compelled” to testify before the grand jury within the meaning of Article 27, § 298 (c). State v. Panagoulis, 3 Md. App. 330, affirmed in 253 Md. 699, which dealt with a similar immunity provision in the laws relating to bribery offenses, is dispositive of this question:

“[W]ith regard to the question of a witness being compelled to testify, it is immaterial how he got before the grand jury. Once he is there, is sworn and testifies, he has been compelled to testify within the meaning of the statute.” 3 Md. App. at 336-337.

The State, however, argued at the hearing on the motion to dismiss that the appellee Moores waived any immunity from prosecution. The following is a transcript of the pertinent parts of the grand jury proceedings, read into the record at the hearing:

“ASSISTANT STATE’S ATTORNEY: This Grand Jury has been empaneled to investigate certain alleged improprieties with respect to illegal dispensing and prescribing of narcotic drugs.

You have been summoned before the Grand Jury not as a mere innocent witness, but as a possible suspect and potential defendant in connection with the crimes which I have just mentioned. Because of your respectable position in the community, the Grand Jury has withheld any action upon indictments in order to give you an opportunity to appear here today and explain, if you can, the apparent irregularities which the evidence discloses. Do you understand what I have said thus far?

DR. MOORES: Yes.

ASSISTANT STATE’S ATTORNEY: I want to make it clear to you that just because you are here under compulsory process, the summons which you received, you should not assume that you thereby gain immunity from prosecution in connection with the crimes which I have mentioned or any other crimes that I have not mentioned. You should clearly understand that you are not going to be compelled to testify and that you do not have immunity from prosecution. For this reason, you should consider your answers very carefully, and because of the fact that you are under suspicion and have not been granted immunity, it becomes my duty at this point to outline the rights which you have as a potential defendant.

First of all, you have an absolute right under the Constitution of the United States and the laws of the State of Maryland to refuse to answer any questions which you think may tend to incriminate you. In other words, you have an absolute right to remain silent. Do you understand that?”

The Assistant State’s Attorney then continued:

“Finally, I don’t want to lull you into a false sense of security so I remind you that you have not been granted immunity and that you will not be compelled to answer but that any answer which proves incriminating will be used against you in both criminal and administrative proceedings. You should consider your answers carefully. If you choose to answer, you do so at your peril.”

The State’s position was that the appellee was advised of his rights, advised that he was appearing as a potential defendant, and advised that he would not be granted immunity from any narcotics violation which was under investigation because he would not be compelled to testify. The State argued, therefore, that since the appellee knew that he would not be compelled to testify, that he at least implicitly waived any immunity conferred by the statute when he so testified.

The Court of Appeals in State v. Comes, 237 Md. 271, rejected precisely such an argument. In referring to Comes, this Court in State v. Panagoulis, supra, stated:

“Comes held that under the statute here involved it was not necessary that a witness claim his privilege against self-incrimination in order to obtain the exemption afforded by the statute. We think it obvious that as the statute takes away the privilege, the witness cannot lose the immunity granted by the statute by failing to assert a privilege not available to him.” 3 Md. App. at 338.

Nor was there any express waiver of immunity by the appellee. The appellee was not informed by the Assistant State’s Attorney at the grand jury proceedings of the provisions of Article 27, § 298 (c). No written waiver of immunity was ever obtained. Nor was there any waiver of immunity by conduct, referred to in State v. Comes, 237 Md. at 282, as where a witness appears before a Grand Jury “by subterfuge . . ., collusion or otherwise.” This Court in Panagoulis stated:

“We also think that there were no other circumstances shown sufficient to establish that the appellee otherwise waived immunity by his conduct. That he may have hoped to convince the grand jury that he was in no way culpable and so prevent an indictment from being returned against him or that, in the words of the lower court, ‘his hope in going before the grand jury was to help himself,’ are not sufficient to constitute a constructive waiver of immunity. Nor may he be denied the immunity because he in fact knew or was presumed to know the law and was thus aware that if he testified under the circumstances here present, he would be exempt from prosecution. The grand jury and the prosecuting authorities are also presumed to know the law, and when the appellee was permitted to testify without an express waiver of immunity by him, he was then, under the circumstances existing, in the absence of conduct on his part sufficient to constitute a waiver, exempt from prosecution, trial and punishment.” 3 Md. App. at 339-340.

Accordingly, we affirm the judgment of the court below In dismissing the indictments as to the appellee John Duer Moores.

Order dismissing indictments 17401237, 17401238, 17401239, 17401240, 17401241, 17401242 and 17401243, as to the appellee Moores, affirmed; order dismissing indictments 17401215, 17401231, 17401244 and 17401254 vacated; order dismissing first, second, third, fifth and sixth counts of all other indictments vacated; order dismissing fourth and seventh counts of all other indictments affirmed; case remanded for further proceedings; costs to be paid by the appellees Fearing, Herrmann, Lai, Cohen, Certeza and Polek.

      . Ultimately enacted on October 27,1970.

      . We are not unaware of Article 38, § 1, which provides, in pertinent part:
      “When any fine or penalty is imposed by any act of Assembly of this State . .. for the doing of any act forbidden to be done by such act of Assembly . . . the doing of such act. . . shall be deemed to be a criminal offense. Any such offense may be prosecuted by the arrest of the offender for such offense and by holding him to appear in or committing him for trial in the court which has jurisdiction in the said cases and shall proceed to try or dispose of the same in the same manner as other criminal cases may be tried or proceeded with or disposed of, or such offenses may be prosecuted by indictment in such court.”
      The 1972 amendment to this Act simply made formal changes of wording to accommodate the language to the creation of the District Court of Maryland. For an application of this section, see Williams v. State, 4 Md. App. 342, 345-347, 242 A. 2d 813.
      Notwithstanding the existence of Article 38, § 1, we are persuaded that when the Legislature adopted the Controlled Dangerous Substances Act in 1970 and in doing so incorporated bodily the provisions of the proposed draft of the Federal Controlled Substances Act, it intended the words and phrases under Maryland law to have the meaning which they had under the parent federal law.


author: Melvin, J.,

text:
    THE BROADVIEW APARTMENTS COMPANY v. GLENN H. BAUGHMAN, etc.
    [No. 361,
    September Term, 1975.]

      Decided January 30, 1976.

    The cause was argued before Morton, Menchine and Melvin, JJ.

      Joseph S. Matricciani, with whom was Robert E. McManus on the brief, for appellant.

      John R. Costello for appellee.
   Melvin, J.,

delivered the opinion of the Court.

This is an appeal by the Broadview Apartments Company (Broadview) from a judgment holding it liable for the loss of Glenn H. Baughman’s (appellee’s) automobile which had been parked in the garage attached to the Broadview Apartments.

In 1966 appellee was an apartment tenant under a written lease in the Broadview Apartments located in Northwest Baltimore. Under a separate agreement, he paid Broadview $15.00 a month to park his car in the Broadview Garage. The garage is beneath the apartment building and is an enclosed two level garage, “one in the basement, one on the ground level”. There is an entrance and separate exit on the lobby level, and a single exit and entrance to the basement. There is no attendant at the entrance and exit on the lobby level, although there is one on the basement level. The only security devices of which Mr. Baughman was aware was that there was a security guard on duty twenty-four hours of the day, and each tenant of the garage was provided with a key to the garage door, although he was aware that the doors were not closed at all times.

On the night of November 23, 1966, Mr. Baughman parked his car in his assigned spot on the lobby level, locked the car and took the keys with him. He testified that he did not recall seeing the security guard that evening. When he returned the next day, his car was gone. He notified the police that it was missing. It has never been recovered.

Broadview rested its case without putting on any evidence. It contends that the evidence failed to establish that the car had been delivered to it and therefore it was not a bailee of the automobile. The trial judge, sitting as the trier of fact, did not agree, holding that Broadview was a bailee of the automobile and, as such, was liable for the value of the missing automobile. Broadview filed this timely appeal, and again asserts that appellee failed to show by his proof that Broadview was a bailee of the automobile.

A bailment is “the relation created through the transfer of the possession of goods or chattels, by a person called the bailor to a person called the bailee, without a transfer of ownership, for the accomplishment of a certain purpose, whereupon the goods or chattels are to be dealt with according to the instructions of the bailor”. Dobie on Bailment & Carriers as quoted in Refining Co. v. Harvester Co., 173 Md. 404, 414 (1938). . . .

“To constitute a bailment there must be an existing subject-matter, a contract with reference to it which involves possession of it by the bailee, delivery, actual or constructive, and acceptance, actual or constructive.” Refining Co. at 415.

Once the bailment relationship is proven certain responsibilities flow from the relationship. The bailee in accepting possession of the bailed property assumes the duty of exercising reasonable care in protecting it. Hambleton v. McGee, 19 Md. 43 (1862). He, however, is not an insurer and owes only such duty of care as persons of common prudence in their situation and business usually exercise towards similar property belonging to themselves. Trans-System Service, Inc. v. Keener, 249 Md. 369 (1968); see also Fox Chevrolet Sales v. Middleton, 203 Md. 158 (1953):

Where, however “. . . a demand and an unexplained refusal to deliver [bailed property] are proven, a prima fade case of negligence is made out; yet, when the loss or injury is accounted for as having been occasioned by a cause which would excuse the bailee, such as burglary of his premises, then the defense is complete, unless the bailor follows by showing that the bailee, by the exercise of ordinary care and diligence might have avoided the loss or injury. The burden of proving negligence never shifts from the plaintiff. He must prove the delivery, the bailment and the failure to return; thereupon, it is incumbent upon the bailee to explain that failure. If he does so, the bailor must prove that the bailee failed to use ordinary care and diligence to safeguard such property and that his failure to perform that duty caused the loss.” Fox Chevrolet Sales at 161.

From the above it is readily apparent that the answer to the threshold question of whether a bailment exists will have not only a procedural but often times a substantive impact on the outcome of the case. If no bailment is shown, and the owner of the property is a mere licensee or lessee of the storage space, then in order to recover against the defendant garage owner the plaintiff would have to prove specific acts of negligence on the part of the defendant proximately causing loss or injury of plaintiffs property. Absent a bailor-bailee relationship, the plaintiff would not have the benefit of any inference or presumption of negligence that arises from a mere showing of non-return of his property if that relationship existed.

The question of whether the owner or operator of a garage or parking lot is a bailee of the cars left there has never been decided by a Maryland Appellate Court. The issue, however, has arisen on numerous occasions in other jurisdictions. See generally Jones, The Parking Lot Cases, 27 Geo. L. J. 25, 162 (1938); See Annot. 1930, 65 A.L.R. 431; 1940, 131 A.L.R. 1175; and 7 A.L.R.3d 927 and 1975 Supplement to 7 A.L.R.3d 927.

The courts have uniformly found a delivery of possession to the parking lot operators, and therefore a contract for bailment, where the keys are surrendered with the car or where the car is parked by an attendant. See Goldberg v. Kunz, supra, and Beetson v. Hollywood Athletic Club, 109 Cal. App. 715, 293 P. 821 (1930). Some courts have also found a bailment where the patron parks his car himself and retains the keys, but in most such cases there have been other factors present bearing on the parking lot operator’s control over the car. See Marine Insurance Co. v. Rehm, 177 So. 79 (La. App., 1937); Jackson v. Metropolitan Gov’t. of Nashville and Davidson County, 483 S.W.2d 92 (1972). Some other factors which have been considered to be important are: (1) whether there are attendants at the entrances and exits of the lots, (2) whether the car owner receives a claim check that must be surrendered before he can take his car, (3) whether the parking lot is enclosed, and (4) whether the parking lot operator expressly assumes responsibility for the car. No single factor has been viewed as determinative of the issue. The law has probably been best stated in Osborne v. Cline, 263 N. Y. 434, where the New York Court of Appeals stated that

“Whether a person simply hires a place to put his car (licensor-licensee relationship), or whether he has turned its possession over to the care and custody of another (bailee-bailor relationship) depends on the place, the conditions and the nature of the transaction”, at 437.

In the instant case we think the evidence is legally insufficient to establish that a bailor-bailee relationship existed. Appellee merely rented a parking space monthly; he parked his own car, locked the car and took the keys with him. There was no testimony that Broadview had a set of keys for the car or had any right or authority to move or exercise any control over the car. The parking garage was laid out in such a manner that it was possible for appellee to park his car without any attendant even being aware of his presence in the garage. Appellee entered into the monthly lease arrangement with full knowledge of how the garage operated. He was not required to check his car in or out, and there was no evidence whatsoever that control of the car was ever turned over to the operators of the garage, or that they ever accepted delivery or control. Nor was there any evidence that Broadview expressly contracted or asserted that the car would be safe from theft while in the garage. Compare Schleisner Co. v. Birchett, 202 Md. 360 (1952), cited by appellee, where an employer told an employee she could keep her fur coat in the employer’s executive closet and agreed to be responsible for it.

In a case factually very similar to the present case, employees at Kennedy Airport in New York paid $10.00 a month to park in an enclosed lot. A magnetic card was used to gain entrance to the lot, but no attendants were at the exits. There was one guard on the premises for general security. The Civil Court of New York City in Peralta v. Port of New York Authority, 68 Misc. 2d 302, 326 N.Y.S.2d 776 (1971) found that the parking lot was liable for the loss of Peralta’s automobile. The opinion, however, implied responsibility more from the mere payment of the $10.00 a month parking fee than from evidence of delivery to the parking lot. The court could not imagine the defendant saying

“Here you are, employees, here’s an exclusive lot to park your cars, that’s it! You get nothing else! Only the chosen few, the paid-up employees, can drive in but . . . anyone could leave the lot”, at 784.

We, however, think that is exactly what Peralta received in that case and what appellee received in the present case. That is not to say he paid $15.00 and received nothing in return. In fact, for his monthly rent he was assured of a convenient parking space, which because of its enclosure, protected him and his automobile from adverse weather. He was much better off than if he parked on the street, for in the city, especially in an area with high rise apartments, there is no guarantee that one will find a parking space within a safe walking distance of one’s home or apartment. The mere fact that he paid a monthly rent for an enclosed parking space, however, does not, standing alone, raise an inference of a bailment contract. The Supreme Court, Appellate Division of New York, apparently adopted the same view, for it unanimously reversed the Civil Court’s ruling in Peralta v. Port of New York Authority in an opinion reported at 76 Misc. 2d 1086, 351 N.Y.S.2d 787 (1973). It noted that

“While there was some measure of control by defendant over the lot ... there was no such assumption of dominion and control as would create a bailment”, at 788.

On the record before us, as we have indicated, there is insufficient evidence to warrant a finding of a bailor-bailee relationship between the parties. The trial court was wrong in finding there was such a relationship. There being no bailment, the burden was upon the plaintiff below (appellee here) to produce sufficient evidence of specific acts of negligence on the part of Broadview or its employees (unaided by any inference of negligence from the fact that the car was missing) from which the trier of fact could predicate a judgment in his favor. The record is devoid of any such evidence. The mere fact that Broadview may have employed a security guard and that the appellee’s car was missing is not enough. As the trial judge correctly stated, Broadview (even if it were a bailee) was not an insurer.

Judgment reversed.

Costs to be paid by appellee.

      . The view that the proof of burglary is a complete defense is adopted by only a minority of the jurisdictions that have considered the question. The majority place the burden on the bailee to prove that the burglary was not occasioned by his own negligence. See Jones, The Parking Lot Cases (1938) 27 Geo. L. J. 162. Corrao v. Dewey Garage Corp., Sup. 24 N.Y.S.2d 592.

      . In Goldberg v. Kunz, 185 Md. 492 (1946) a car owner stored his car in a garage. When he returned for the car it was damaged. The court implied that an express bailment had been created, but found liability on the part of the garage because of its specific act of negligently hiring the attendant who stole the car.

      . In fact, the lease for the apartment specifically included a disclaimer of responsibility for personal property left in the garage.

      . For other examples of cases where the New York Supreme Court Appellate Division has overruled Civil Court findings of bailment in “parking lot” cases see Ellish v. Airport Parking Co. of America, 345 N.Y.S.2d 650; Liberty Mutual Insurance Co. v. Meyers Brothers Op., Inc., 347 N.Y.S.2d 568; and for other examples of no bailment, see Greene Steel and Wire Co. v. Meyers Bros. Op., Inc., 254 N.Y.S.2d 299 (1964), Hogan v. O’Brien, 206 N.Y.S. 831. Affd. 208 N.Y.S. 477.


author: Gilbert, J.,

text:
    MARK EDWARD BLIZZARD v. STATE OF MARYLAND
    [No. 365,
    September Term, 1975.]

      Decided January 30, 1976.

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

      Robert N. Dugan, Assigned Public Defender, for appellant.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Edward Seibert, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Thomas Jefferson, on July 31, 1788, wrote a letter to James Madison, freshly returned from his duties as Virginia delegate to the Constitutional Convention and the Convention’s chief recorder, in which he referred to the Constitution of the United States as, “ ... a good canvas, on which some strokes only want retouching.” The Congress and the courts of this country have, from time to time, applied the strokes deemed necessary to retouch the canvas, with the Supreme Court exercising its role as the master artist. In that capacity, the Court, speaking through Mr. Justice Stewart,* declared, in Massiah v. United States, 377 U. S. 201, 206, 84 S. Ct. 1199, 12 L.Ed.2d 246 (1964):

“ ... We hold that the petitioner was denied the basic protections of that guarantee [the Sixth Amendment right to counsel] when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.”

Shortly afterwards the Court was presented with McLeod v. Ohio, 378 U. S. 582, 84 S. Ct. 1922, 12 L.Ed.2d 1037 (1964). There a question similar to that raised in Massiah confronted the nine justices of the Supreme Court. The judgment was vacated and the cause remanded to the Ohio Supreme Court in order that they might re-examine their decision in the light of Massiah. The Ohio Court, in a per curiam opinion, State v. McLeod, 1 Ohio St. 2d 60, 203 N.E.2d 349 (1964) endeavored to distinguish McLeod from Massiah. The Court pointed out that McLeod, eight days after indictment, voluntarily made an oral confession to an assistant prosecutor and to a deputy sheriff while McLeod was “ . . . riding around in the sheriffs automobile searching for the gun used in the holdup.” The majority of the Court observed that the statements were willingly made and that no counsel had been appointed. The majority quoted the last two sentences of the opinion authored by Mr. Justice Stewart in Massiah:

“ ... We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted. All that we hold is that the defendant’s own incriminating statements, obtained by federal agents under the circumstances here disclosed, could not constitutionally be used by the prosecution as evidence against him at his trial.” 377 U. S. at 207.

The majority found comfort in the fact that the “. . . ‘circumstances’ under which his [McLeod’s] incriminating statements were given were wholly different from those in Massiah.” 203 N.E.2d at 351. The court affirmed its prior stand. McLeod again petitioned the Supreme Court for certiorari which was granted. Whatever distinction the Ohio court made between McLeod and Massiah did not convince the Supreme Court, for they reversed in a per curiam opinion, McLeod v. Ohio, 381 U. S. 356, 85 S. Ct. 1556, 14 L.Ed.2d 682 (1965). The full text of the opinion read:

“The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment is reversed. Massiah v. United States, 377 U.S. 201.”

Two years after the Massiah decision the Supreme Court handed down its opinion in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). Massiah was bottomed on the Sixth Amendment right to counsel. Miranda was founded upon the Fifth Amendment protection against self-incrimination. With the announcement of the Miranda holding, the significance of Massiah was to some extent diminished, but it was by no means eradicated. Massiah-Miranda guards against surreptitiously obtaining incriminating statements from an accused absent a knowingly and intelligently made waiver of the Constitutional right to the presence of counsel. We shall now turn to a discussion of the instant case and the application, vel non, of Massiah thereto.

Mark Edward Blizzard, appellant, was arrested and charged with robbery with a deadly weapon of a pharmacy in Baltimore County. Blizzard was subsequently indicted for that offense and allied charges. At trial in the Circuit Court for Baltimore County, before a jury, the State used the testimony of two alleged accomplices to demonstrate Blizzard’s culpability as one of the three or four persons who robbed the pharmacy of “Class A” drugs and cash. An individual customer was also relieved, at gunpoint, of her wallet containing $56. None of the persons, save one, who were in the pharmacy at the time of the robbery could identify Blizzard as one of the robbers. Notwithstanding the fact that the two gunmen who entered the store had their faces concealed, one with a ski mask and the other with a nylon stocking, an employee made a positive identification of appellant as the individual who held a gun on her.

Blizzard’s defense was twofold. Firstly, he sought to show through three witnesses and himself that he was at home repairing a friend’s automobile at the time the pharmacy was robbed. Secondly, he produced the testimony of two inmates of the Baltimore County jail who told the jury that a co-defendant of appellant, one Markert, had told them that he and one Phillips had robbed the pharmacy, and that they, Markert and Phillips, were going “to frame” Blizzard.

The State, in rebuttal, called Sergeant Zero of the Baltimore County Police Department who testified over strenuous objection that he was telephoned from the county jail and told that Blizzard wanted to see him. The transcript reveals the following:

“THE WITNESS: ... I went down to the Jail and I talked to the Defendant and another subject, and when I first met him I told him I didn’t even want to talk to him about the armed robbery he was involved in being the Defendant.

By Mr. Seibert [Assistant State’s Attorney]:

Q Is that the first conversation?

A Yes.

Q What happened then?

A I told him I had him up tight in this armed robbery.

MR. DUGAN [Defense Counsel]: Objection. May we approach the Bench?

THE COURT: Objection overruled. This is what you told him?

THE WITNESS: Yes, this is what I told him.

THE COURT: What did he answer?

MR. DUGAN: May we approach the Bench?

THE COURT: Let him finish the question.

THE WITNESS: He answered, he told me he knew it but he wished to talk to me about other cases.

THE COURT: That is what he said?

THE WITNESS: Yes, sir.”

The record reflects that the conversation between Zero and appellant occurred two months after indictment of appellant, six weeks after initial counsel had entered his appearance for appellant, a month after Mr. Dugan had entered his appearance, and sixteen days before trial. Thus, it is clear that the Massiah stage was set at the time of Zero’s visit to the county jail.

Appellant argues that the trial judge’s allowing of Sergeant Zero’s testimony violates the precepts of Massiah and, therefore, requires a reversal. The State’s polemic to that contention is that Massiah is not “ . . . applicable where the statement was voluntary and was not ‘deliberately elicited’ from a defendant.” To bolster its argument the State relies upon a series of federal cases, i.e., United States v. Gaynor, 472 F. 2d 899 (2d Cir. 1973); United States v. Garcia, 377 F. 2d 321 (2d Cir. 1967); Gascar v. United States, 356 F. 2d 101 (9th Cir. 1965), cert. denied, 385 U. S. 865, 87 S. Ct. 125, 17 L.Ed.2d 92 (1966); United States v. Gardner, 347 F. 2d 405 (7th Cir. 1965), cert. denied, 382 U. S. 1015, 86 S. Ct. 626, 15 L.Ed.2d 529 (1966); United States v. Accardi, 342 F. 2d 697 (2d Cir. 1965), cert. denied, 382 U. S. 954, 86 S. Ct. 426, 15 L.Ed.2d 359 (1965). We are unpersuaded, however, by any of them.

Gaynor dealt with a spontaneous utterance made to a postal inspector in a courthouse elevator. It “. . . was not a part of any interrogation, [and] ... it was not elicited by the Postal Inspector.” 472 F. 2d at 900. The trial court apparently found that the statement was voluntarily made. Gaynor, we believe to be unpersuasive because, not only did the Second Circuit neglect to distinguish McLeod secundum, but there seemingly was a factual finding by the trial court that Gaynor’s statement was voluntary. In the case now before us, there is no such finding. The trial judge allowed the State to set the scene for the use of Zero’s rebuttal testimony by inquiring of Blizzard what he had told the sergeant. Blizzard responded, “Nothing.”.

Garcia is factually inapposite. In that case the government interrogator was unaware that Garcia had been indicted and the subject matter of his inquiry was not directed toward . . seeking information about the crime the indictment charged had been committed.”

Massiah has no application to Gasear which involved voluntary incriminatory statements spoken to various government agents during the commission of criminal acts and at the time of arrest. Gasear had not been indicted at the times of these statements, nor is there any indication that counsel had been appointed. The court quoted its prior case, Grier v. United States, 345 F. 2d 523, 524 (9th Cir. 1965), wherein they noted that “. . . One is not entitled to counsel while committing his crime. . . .” The Gasear court explained that the statements were made during investigation of criminal transactions. They were not made during a process of interrogation as was prohibited by the Massiah meaning of “investigation.”

Gardner involved a conversation between two prisoners, and into which a deputy marshal injected himself. During the conversation the marshal described to the other prisoner the ironic events of Gardner’s bank robbery in which Gardner got trapped in the bank. Gardner voluntarily responded with an explanation of how he literally “broke out” of the bank. The court held that Massiah did not apply in that the .. admissions ... [were] not deliberately elicited.” McLeod secundum was decided by the Supreme Court on May 24, 1965, approximately six weeks before Gardner, but it is apparent from a reading of Gardner that the court did not consider the second McLeod disposition.

Accardi was decided prior to McLeod secundum. The issue of Massiah’s application was not raised in the trial court. Even if it had been raised, the appellate court held on the facts that Accardi was not questioned about the matter for which he stood indicted, but rather voluntarily disclosed the inculpatory information to the federal agent.

Whatever eroding of Massiah’s tenets may have been indulged in by courts of some other states or some of the Federal courts, Maryland adheres to the principle pellucidly engraved into our case law by the Court of Appeals, in Elliott v. Warden, 243 Md. 627, 222 A. 2d 55 (1966). The Elliott Court declared that “... Under the Massiah test, absent an effective waiver of Sixth Amendment rights, no inculpatory statement which is made by an indicted declarant will be allowed into evidence against him if such a statement is elicited from the accused when he does not have counsel present.” The Court concluded that its interpretation was “.. . compelled by the language used in Massiah....” 243 Md. at 631. Elliott also makes manifest that absent effective waiver of counsel even “a voluntary” statement is inadmissible, 243 Md. at 631-32, citing the Supreme Court’s summary disposition oí McLeod secundum.* **

This Court, in Sabatini v. State, 14 Md. App. 431, 448, 287 A. 2d 511, 520 (1972), cert. denied 265 Md. 742 (1972), interpreted Elliott’s waiver exception. We said:

“.. . We do not construe Massiah as holding that an accused may never effectively waive assistance of counsel once he has counsel representing him or that a waiver of assistance of his counsel can never be effective in the absence of waiver also by that counsel.”

The State further suggests that the statement allegedly made by appellant to the police sergeant was not “deliberately elicited” and, therefore, was admissible. We do not see it that way. In our view, the police officer inferentially, at least, knew that appellant had been indicted and that counsel represented him. The sergeant’s conversation at the jail with appellant should have been preceded with the Massiah-Miranda warnings. Moreover, we believe that the tenor of the sergeant’s opening remarks may well have been calculated to bait appellant.

Based upon our Constitutionally mandated independent review of the record, Sabatini v. State, supra, and Herbert v. State, 10 Md. App. 279, 269 A. 2d 430 (1970), we observe no finding therein indicating that Blizzard had waived his right to counsel. Furthermore, as we read Elliott v. State, supra, and State v. McLeod, supra, together with McLeod secundum, we are led to the belief that, while Massiah may not proscribe all post-indictment voluntary statements of an accused, as where waiver is present, Sabatini v. State, supra, it most certainly forbids the introduction into evidence of such testimony absent a finding of voluntariness grounded upon waiver of counsel’s presence.

The long and the short of our holding is that once counsel has been appointed or retained, and his appearance is a matter of record, any post-indictment statement pertaining to the subject matter for which the accused has been indicted, elicited by the authorities, absent an effective waiver of the right to the presence of counsel, affirmatively shown in the record, is proscribed by Massiah and Elliott. See also United States v. New Jersey, 351 F. 2d 429 (3d Cir. 1965). Any proceeding to determine whether an accused effectively waived his right to the presence of counsel at the time he allegedly made a statement must be conducted out of the presence of the jury, if there be a jury.

Admission of Sergeant Zero’s testimony concerning appellant’s statement, under the circumstances of the case sub judice, constitutes reversible error.

We deem it advisable to comment upon another issue raised by this appeal. We do so because there seems to be some confusion regarding jury instructions as to the testimony of an accomplice. The appellant requested that the following advisory instruction be given to the jury:

“The testimony of an accomplice must be weighed with great care and be scrutinized closely, carefully and cautiously. This testimony, which is subject to great suspicion, must be viewed with distruct [sic] and acted on only after due and careful deliberation.”

The judge charged the jury:

“In this case you have heard the testimony of two accomplices that were involved in the crime for which the Defendant has been accused. Before you may consider the testimony of an accomplice as forming the basis of a case against the Defendant you must be convinced that the prosecution has introduced corroborative evidence that supports the testimony of the accomplice under consideration as to material facts tending to show that the accused was identified with the perpetrator of the crime or had participated in the commission of the crime. Corroboration of an accomplice’s testimony need not extend to every detail in order to be sufficient to convict, and it is sufficient if it is just slight corroboration; but you must have some corrobation in an accomplice’s testimony. Corroborative evidence as such is evidence other than that which has been obtained from the accomplices; in other words, with the accomplices’ testimony you must have other evidence, and that other evidence is corroborative if you feel it does corroborate their testimony.”

Following the judge’s advisory instructions the appellant's counsel excepted to the charge on the basis that, “Even if the Court doesn’t give it [an instruction dealing with the testimony of accomplices] in my form, I think there should be some instruction to the Jury that they should consider the testimony of an accomplice more cautiously and with greater care than that of an ordinary witness.” The court refused to supplement its initial charge.

The Court of Appeals in Hardison v. State, 226 Md. 53, 61, 172 A. 2d 407, 411 (1961), speaking through Judge Prescott (later Chief Judge), said:

“The refusal of the trial judge to inform the jury who, in law, are, and who are not, accomplices . . . and the law with reference to the necessity for the corroboration of an accomplice’s testimony constitutes reversible error. Testimony of an accomplice should be closely scrutinized and juries should be cautioned, upon request, in the form of an advisory instruction that conviction cannot stand on accomplice’s testimony alone, but that corroboration is necessary as to material points.”

The Court, in Watson v. State, 208 Md. 210, 217, 117 A. 2d 549, 552 (1955) put it more forcefully, saying:

“. . . The reason for the rule requiring the testimony of an accomplice to be corroborated is that it is the testimony of a person admittedly contaminated with guilt, who admits his participation in the crime for which he particularly blames the defendant, and it should be regarded with great suspicion and caution, because otherwise the life or liberty of an innocent person might be taken away by a witness who makes the accusation either to gratify his malice or to shield himself from punishment, or in the hope of receiving clemency by turning State’s evidence.”

To the same effect see Mason v. State, 12 Md. App. 655, 662-665, 280 A. 2d 753, 759-760 (1971), cert. denied 263 Md. 717 (1971); Gaskins v. State, 7 Md. App. 99, 103, 253 A. 2d 759, 761-762 (1969).

Hardison, Watson, Mason and Gaskins state the underlying reasons for the rule concerning instructions relative to accomplices. They are not, however, to be read as mandating that the trial judge is required to instruct the jury that the testimony of accomplices must be viewed with caution and suspicion. It is enough that the jury be advised that the testimony of the accomplice must be corroborated in material aspects even though the corroboration may be slight.

Judge Digges, recently in State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975), aff'g, Grady v. State, 24 Md. App. 85, 329 A. 2d 726 (1974), pointed out the difficulty that arises when appellate opinions are “lifted” and turned into jury-instructions. He said:

“Finally, since the language which was misleading in this case was taken almost verbatim from our opinion in Floyd v. State, 205 Md. [573], . . . 581, 109 A. 2d 729 [(1954)], we comment upon the use of excerpts from judicial opinions when instructing a jury. Again we suggest that it is not always appropriate to quote from appellate decisions in jury instructions since the language employed in a particular opinion may not adequately inform jurors of their responsibility.” 276 Md. at 186, 345 A. 2d at 440.

The trial judge, obviously mindful that he should not use excerpts from appellate opinions in his jury instructions, properly declined to inform the jury of the underlying basis for the rule that the accomplice’s testimony must be corrorborated. It is sufficient that the jury was informed that there must be corroboration. We perceive no error in the instant case’s instructions, and we think the charge, when read as a whole, set forth the appropriate law.

Appellant has advanced a third issue which we think should be discussed, notwithstanding that our decision with respect to the first issue is dispositive of the appeal. On July 1,1974, Md. Rule 1224 d was adopted. It provides:

“Each court reporter assigned to record a proceeding shall record verbatim by shorthand, stenotype, mechanical or electronic sound recording methods, or any combination of these methods, subject to regulations and standards prescribed by the Chief Judge of the Court of Appeals.
1. Criminal Cases
(a) Trial on Merits Other Than District Court Appeals.
In criminal cases, other than appeals from the District Court, the entire trial on the merits held in open court, including opening statements and closing arguments of counsel(Emphasis supplied).

Appellant, in the instant case, asserts that the Assistant State’s Attorney made an improper jury argument which was highly prejudicial to appellant. The transcript reveals merely the following occurred at a bench conference during the prosecution’s closing argument to the jury:

“MR. DUGAN [Defense Counsel]: I move for a mistrial based on the fact that in his closing argument the prosecutor said the Defendant did not call any character witnesses on his behalf. There is no responsibility or burden for the Defendant to call character witnesses. It is the option of the Defendant. It is prejudicial for the prosecutor to comment on that.

MR. SEIBERT [Assistant State’s Attorney]: It is a fair comment.

THE COURT: The motion is denied. If it was done it is harmless error. (Emphasis supplied).

Appellant perceives a striking similarity between the instant case and Fryson v. State, 17 Md. App. 320, 301 A. 2d 211 (1973) where we condemned prosecution forensics in which the jury was told, in a dose factual matter, that if the accused was found guilty, he would be “put on probation” or “parole”. In Fryson, there was ample support within the record, in the form of the trial judge’s comments, and the State’s failure there to contest the accuracy of the remarks attributable to the prosecution, for us to have drawn a clear inference that the prejudicial comments had, in fact, been made. Md. Rule 1224 d 1 was not in esse at the time of Fryson. When the instant matter was litigated on February 6 and 7, 1975, Rule 1224 d 1 had been in effect for seven months. Pursuant to its terms, the entire closing argument should have been recorded, and had appellant requested, transcribed as part of the record on appeal. We would then have been able to ascertain whether the remark had, in fact, been made, and in what context. The Assistant State’s Attorney’s response that, “It is a fair comment,” gives rise to a deduction that the remarks were, in fact, made. The judge’s answer at the time of ruling, however, would indicate that there was a question of the remark’s actually having been made, at least, in the form presented by appellant. This is so because otherwise there was no need for the judge to preface his reason for denying the motion by the conjunction, “if.” It is, of course, highly improper for the prosecutor to comment upon an accused’s failure to call character witnesses. “. . . The offering of character evidence is a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to produce such evidence.” 1 Wharton's Criminal Evidence § 229 (13th ed. C. Torcia 1972). See also Taylor v. State, 28 Md. App. 560, 346 A. 2d 718 (1975); State v. Markowitz, 138 Ohio St. 106, 33 N.E.2d 1 (1941). Appellant has not availed himself of his right under Md. Rule 1224 d 1, and the matter has not been properly preserved. Since Md. Rule 1224 d 1 requires that opening statements and closing arguments be recorded, it is incumbent upon counsel, where all or part of the opening statements or closing arguments is challenged, to see that it is transcribed and made a part of the record for our review.

Judgment reversed.

Case remanded for a new trial.

      . The Court decided Massiah v. United States by an apparent vote of six to three. Mr. Chief Justice Warren, together with Justices Black, Douglas, Brennan, Stewart and Goldberg composed the majority. Mr. Justice White wrote a dissent and was joined therein by Justices Clark and Harlan.

      . Massiah had been indicted for narcotics law violations and released on bail. The co-defendant permitted a federal agent to “bug” the co-defendant’s motor vehicle. The agent, with an appropriate receiving device, overheard incriminatory statements made by Massiah to the co-defendant. The agent, over objection, was allowed to testify as to the content of those statements.

      . Two of the seven judges dissented on the basis that Massiah required a reversal.

      . The Sixth Amendment right to counsel was made obligatory upon the several States through the Fourteenth Amendment, by Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L.Ed.2d 799 (1963). See also Young v. State, 5 Md. App. 383, 387, 247 A. 2d 751, 753-54 (1968).

      . Markert was tried separately, found guilty, and sentenced to fifteen years imprisonment. He is not a party to this appeal.

      . Phillips was not charged, although he admitted, in his testimony, that he participated in the crime. The record indicates that he was granted immunity. But see Bowie v. State, 14 Md. App. 567, 287 A. 2d 782 (1972).

      . The United States Circuit Courts of Appeal have taken diverse approaches to applying Massiah. Some courts have by a broad construction of Massiah held inadmissible all post-indictment statements obtained when counsel is not present. See United States ex rel. O’Connor v. New Jersey, 405 F. 2d 632 (3d Cir. 1969), cert. denied, Yeager v. O’Connor, 395 U. S. 923, 89 S. Ct. 1770, 23 L.Ed.2d 240 (1969); Hancock v. White, 378 F. 2d 479 (1st Cir. 1967); State v. Green, 46 N. J. 192, 215 A. 2d 546 (1965). Compare Queen v. United States, 335 F. 2d 297 (D.C. Cir. 1964); Ricks v. United States, 334 F. 2d 964 (D.C. Cir. 1964) (point recognized but not discussed).
      Other circuits have adopted “. . . a more restrictive view of Massiah, allowing the admission of post-indictment statements voluntarily and deliberately made by a properly warned defendant who was not tricked into speaking by some deliberate act of the investigating officers.” United States v. DeLoy, 421 F. 2d 900, 902 (5th Cir. 1970). See also the following cases which are substantially to the same effect: Moore v. Wolff, 495 F. 2d 35 (8th Cir. 1974); United States v. Kaylor, 491 F. 2d 1127 (2d Cir. 1973); United States v. Thomas, 474 F. 2d 110 (10th Cir. 1973); United States v. Tucker, 435 F. 2d 1017 (9th Cir. 1970); Cephus v. United States, 352 F. 2d 663 (D.C. Cir. 1965); Hayes v. United States, 347 F. 2d 668 (8th Cir. 1965); Payne v. United States, 340 F. 2d 748 (9th Cir. 1965); Latham v. Crouse, 338 F. 2d 658 (10th Cir. 1964); Jackson v. United States, 337 F. 2d 136 (D.C. Cir. 1964); State v. Darwin, 29 Conn. Sup. 423, 290 A. 2d 593 (1972); People v. Furnish, 63 Cal. 2d 511, 407 P. 2d 299, 47 Cal. Rptr. 387 (1965); People v. Dorado, 394 P. 2d 952, 40 Cal. Rptr. 264 (1964); Commonwealth v. Frongillo, 268 N.E.2d 341 (Mass. 1971); People v. Lopez, 28 N.Y.2d 23, 268 N.E.2d 628, 319 N.Y.S.2d 825(1971).
      Very recently in United States v. Anderson, 523 F. 2d 1192, 18 Cr. L. Rptr. 2265 (5th Cir. Nov. 28, 1975), the Fifth Circuit condemned the action by Drug Enforcement Administration officials who transgressed Massiah by surreptitiously sending an informer disguised as a prostitute to a physician who had been indicted for drug violations. The doctor made self-incriminating statements to the informer and otherwise inculpated himself by “verbal acts.” The court held that both the oral statements and the verbal acts were uttered or made at a time when the presence of counsel was required by Massiah and hence they were not admissible.

      . In Brown v. State, 10 Md. App. 215, 232, 269, A. 2d 96, 106 (1970), we refused to expand the Massiah holding so as to embrace statements made, not by Brown, but by another party who had been indicted and was interviewed out of the presence of her counsel. We noted that Constitutional rights are personal and not vicarious.

      . See Michigan v. Mosley, 44 U.S.L.W. 4015 (U. S. Dec. 9, 1975).