author:
Morton, J.,
      Davidson, J.,

text:
    FRANK (NMN) MARINI v. STATE OF MARYLAND
    [No. 95,
    September Term, 1975.]

      Decided January 28, 1976.

      The cause was argued before Morton, Davidson and Lowe, JJ.

      Richard A. Cooper, Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert C. Nalley, State’s Attorney for Charles County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 31 infra.

A jury sitting in the Circuit Court for Charles County found appellant guilty of receiving stolen goods. Judge James C. Mitchell, who presided, sentenced appellant to a term of five years. The issues raised in this appeal, which require only a brief statement of the facts, will be treated seriatim.

There was evidence to show that on September 29, 1974, James Renjilian, who lived in Oxon Hill, Maryland, discovered that his 1966 Ford Mustang, which he had left locked in his driveway, was missing. On November 3, 1974, at about 8 p.m., two officers associated with the Charles County Sheriffs Department, responded to a call concerning a possible breaking and entering of an abandoned store located in Indian Head, Maryland. Upon their arrival, they discovered the car previously stolen from Mr. Renjilian parked in front of the store. They apprehended the appellant inside the store. According to the police, the appellant, having been advised of his rights, originally disclaimed ownership of the car. After one of the police officers found a note in the car bearing the appellant’s name, the appellant told the officers that he had purchased the car in Virginia. No certificate of title, registration card or similar document was found when the police searched the appellant’s person and the vehicle.

At trial, the appellant, having been advised of his rights, elected to testify. On direct examination he stated that in both 1967 and 1970 he had been convicted of offenses involving stolen motor vehicles. He conceded that at the time of his arrest he was in possession of a 1966 Ford Mustang but insisted that he had purchased the automobile in Alexandria, Virginia, on October 8, 1974. He offered testimony concerning the circumstances surrounding the purchase of the car and an explanation as to why he did not have the title or registration certificate. He denied that he had stolen the car and that he had any knowledge that the car had been stolen.

On cross-examination the appellant stated that he had gotten the license plate found on the car at the time of his arrest from a friend named “Miss Carter” who lived on Duke Street in Alexandria, but he could not remember the house number. The following colloquy between the state’s attorney and the appellant then took place:

“Q. Where is Miss Carter today?

A. Who?

Q. Miss Carter.

A. (Witness shakes head.) I don’t know.

Q. Who is Miss Carter?

A. Miss Carter?

Q. Uh-huh.

A. It is a friend of mine.

Q. All right. You don’t know where she is today?

A. (Witness shakes head.)

Q. Have you made any efforts to get in touch with her?

A. (Witness shakes head.)

Q. That is a ‘no,’ I take it. Why not?

A. (Witness shakes head.)

Q. Huh? You just said a few minutes ago that the tags you had on the car was hers? Wouldn’t she be capable of backing that story up? Huh?

A. (No response.)

Q. Yes or no, sir?

A. (No response.)

Q. The tags weren’t stolen from her, were they? Or were they?

THE COURT: Mr. Marini [appellant], you will have to respond to the questions. You will have to answer the questions.

THE WITNESS: No, the tags weren’t stolen.

BY MR. NALLEY:

Q. From her?

A. No.

Q. Would it surprise you to learn that they were in fact stolen from somebody else? Yes or no, sir? Would it surprise you to learn that they were in fact stolen from somebody else?

A. (No response.)

Q. Do you know a Kathleen F. McCarthy?

A. (No response.)

MR. NALLEY: Your Honor, I would ask that you instruct him again to respond either ‘yes’ or ‘no’ to that question.

THE COURT: Yes, Mr; Marini, you will have to answer the questions. Do you understand the question?

THE WITNESS: Yes, I understand it.

THE COURT: All right, you will have to answer it. Can you answer it ‘yes’ or ‘no’?

BY MR. NALLEY:

Q. Do you know, sir, a Kathleen F. McCarthy?

A. (No response.)

Q. Are you familiar with the address 4600 Duke Street, Alexandria?

A. Yes, I am familiar with it.

Q. With this address, what kind of place is this?

A. It is an apartment.

Q. All right, do you know a Miss McCarthy who lives in that building?

A. Yes, I know her.

Q. All right, what kind of car does she have?

A. What kind of car does she have?

Q. Uh-huh.

A. She just bought a brand new one.

Q. Would it surprise you to learn that the tags that were on the car you were driving, on the 3rd of November, belonged to her?

A. Yes, I know they belonged to her because she let me use them.

Q. I thought you said a few minutes ago that a Miss Carter let you use them?

A. Same name. Same name because I ain’t seen her in years. Only been going around to see her once in a while.

Q. How did you get the tags from her?

A. I borrowed them. I borrowed them from her.

Q. Would it surprise you to know that she reported them as stolen to the Alexandria Policed

MR. MUDD [Defense counsel]: Objection. Unless the State can prove that.

THE COURT: I assume the question was asked on that basis.

MR. MUDD: I would like a proffer from the State. That they can prove that today.

MR. NALLEY: I don’t believe we could prove that today, Your Honor. It is a matter of record. It could be proved. I don’t have Miss McCarthy here or a representative of the Alexandria Police here today, if that is the point that is being made.

(Emphasis supplied.)

BY MR. NALLEY:

Q. This goes back to the question, Mr. Marini, I thought you said a few minutes ago that you didn’t know how to get in touch with the lady from whom you had gotten tags or you had not tried to get in touch with her during the months you had been in jail; is that correct?

A. What are you trying to do, put her in jail, too?

Q. I am asking you why you haven’t got in touch with her during the last two months, Mr. Marini. That is what I am asking. Why not? And don’t tell me you haven’t had her address. You' have had her address since the week after you got in jail.

A. Your Honor, can I be excused?

THE COURT: No. You will have to—

THE WITNESS: I ain’t going to answer no more questions if I sit here.

THE COURT: You took the witness stand.

THE WITNESS: I answered all the questions I was going to answer today. This is it. I ain’t answering no more questions.

THE COURT: Mr. Gilroy, would you take the jury out, please.

(Whereupon, at 2:03 o’clock p.m. the jury was taken to the jury room and the following proceedings were had out of the hearing of the jury:

THE COURT: Mr. Marini, as you know, you had a right to take the witness stand and testify or you had a right not to testify in this case. The Court explained that to you. When you take the stand, you cannot elect what questions you will answer and what questions you will not answer. You have taken the stand and you are subject to cross-examination on your testimony. Now you have indicated to this Court that you have reached the point where you refuse to answer any more questions. Does the Court understand that correctly?

THE WITNESS: Yes.

THE COURT: If you persist in that position it would constitute a contempt of court and subject you to punishment such as the Court deemed appropriate for that criminal contempt. Now with that information, do you wish to answer questions or do you wish to remain in contempt of the court for refusing to answer?

MR. MUDD: Your Honor, might I just have a word with him before he responds?

THE COURT: Yes.

MR. MUDD: Mr. Marini, all you have to answer is either ‘yes’ or ‘no’ to a question or T do not know.’ And I would strongly urge you to answer the questions. If you do not have an answer, just say ‘I don’t know.’ The problem is that no response is going to put you in contempt of court. Do you understand that?

(Witness nods head.)

WITNESS: Yes.

MR. MUDD: Are you willing to continue with the cross-examination now?

THE WITNESS: Yes.

THE COURT: All right, Mr. Gilroy, you can bring the jury back).

(Whereupon, the jury returned to the courtroom and resumed their seats in the jury box and the following proceedings were had in the presence and hearing of the jury, the jury returning at 2:05 o’clock p.m.)

CROSS-EXAMINATION (Continued)

BY MR. NALLEY:

Q. Mr. Marini, I believe the question was whether you had made any efforts to get in touch with Kathleen McCarthy since you went to jail?

A. I don’t know.

Q. You don’t know what?

A. I don’t know.

Q. You don’t know whether you have tried to get in touch with her or not? Is that what you are saying? Is that what you are saying?

A. (Witness does not respond.)

Q. Is that what you are saying?

THE COURT: All right, Mr. Nalley, he answered the question. It is up to the jury to assess his testimony.

BY MR. NALLEY:

Q. What did you say to Miss McCarthy, Mr. Marini, when you asked for the tags?

A. I don’t know.

Q. You don’t know what you said to her? What did she say to you when you asked her for the tags?

A. I don’t know.

MR. MUDD: Your Honor, I will object. I think we are getting beyond the scope of direct examination. We really didn’t get into the question of how the automobile was tagged at the present time when he was arrested, and I really don’t see what relevance that has to the proceeding. I think we are just prolonging something that really has little significance.

MR. NALLEY: If the Court please, I think it has every bit of significance, going into this Defendant’s credibility when he said he is, implying in his testimony that he had no reason to believe or suspect this car might be stolen.

THE COURT: Mr. Nalley, seems to me you have gotten the answers.

MR. NALLEY: I am getting T don’t know,’ Your Honor. I just want to get as many as I can.

THE COURT: There is a limit as to how many you need.” (Emphasis added.)

In this factual posture it is contended that “the failure of the State’s Attorney either to offer evidence establishing the commission of such offense or to disclaim any intimation that the Appellant had committed such offense was prejudicial error, which was not cured by an instruction from the trial judge.” Otherwise expressed, it is contended that the failure of the state’s attorney to offer proof in support of his question to the appellant that the tags had been reported stolen and to disclaim any intention that appellant had stolen them constituted error which was compounded by the failure of the trial judge to give a “curative instruction.”

In support of this contention we are referred to the decision of the Court of Appeals in Cook v. State, 225 Md. 603, and the decision of this Court in Woodell and Mercer v. State, 2 Md. App. 433. In Cook the state’s attorney asked Cook, during the course of cross-examination, if he had ever been convicted of a crime. When Cook answered that he was “pretty sure” he had not been, the state’s attorney asked: “* * * you were charged with breaking and entering * * * you received a generally suspended sentence * * *. Do you remember that?” Cook replied that he did not remember. Judge Prescott (later Chief Judge) pointed out for the Court, at 609: “The State’s Attorney did not then, nor at any subsequent time, proffer to show that the appellant had been convicted of a crime, as was so strongly intimated in his questions, nor did he ask leave of the court to explain to the jury that he desired to disclaim any intimation from his question that the defendant has previously been convicted of a crime.” Judge Prescott then announced, at 609: “The questions were, we think, highly improper in the absence of the State being able to establish that the defendant had been convicted in accordance with the statement of the State’s Attorney; and, were it not for the care with which the trial court explained the matter to the jury, would require a reversal of the judgment and a new trial.”

In Woodell and Mercer v. State, supra, the state’s attorney during cross-examination questioned Mercer about his convictions of assault by threat, public drunkenness, worthless check and exceeding the speed limit, all of which allegedly occurred in Raleigh, North Carolina. Mercer could not remember the first two convictions, denied the last two convictions and asserted that he had never been in Raleigh, North Carolina. The state’s attorney then alluded to Mercer’s F.B.I. record and “asked Mercer whether he thought anyone else had his fingerprints, the clear implication intended to be conveyed to the jury being that the State’s Attorney had access to Mercer’s F.B.I. record which indicated that he had indeed been convicted of these offenses. The State’s Attorney did not otherwise proffer to show that the appellant had been convicted of these crimes.” Judge Murphy (then Chief Judge of this Court) announced for the Court, at 438: “The present case presents a more extreme example than that contained in Cook, since here the State’s Attorney sought to buttress his intimation that Mercer was lying in denying the convictions by referring to his criminal record on file with the F.B.I. (an organization held in high public esteem).” He then went on to say, at 439:

“If the State’s Attorney chooses not to offer appropriate evidence of the prior conviction, he should, under the dictates of Cook, seek leave of court to explain to the jury that he disclaims any intimation from his question that the defendant had previously been convicted of such crime. Failure to do so may result in an appellate reversal of the conviction where the error cannot be deemed harmless, and the point is properly preserved for review on appeal.
Appellants here entered no objection to the questions propounded by the State’s Attorney, and neither moved for a mistrial nor sought an advisory instruction from the court as they might have done under Cook. Under these circumstances, the matter was not before the trial judge for a ruling and consequently is not properly before us for review.”

From the record before us, it is apparent the procedural pattern here is not entirely unlike that which confronted the Court in Woodell and Mercer and we must conclude here, as there, that the issue is not properly before us. In the first place, the question posed by the state’s attorney at the trial below: “Would it surprise you to know that she reported them [the license tags] as stolen to the Alexandria Police?”, did not directly accuse Marini of having stolen the tags and, in the second place, the question was never answered by Marini. The appellant seems to concede this but argues that the jury could draw an inference that appellant stole the tags when the state’s attorney announced: “I don’t believe we could prove that today, Your Honor. It is a matter of record. It could be proved.”

We think any inference that the appellant himself stole the tags is, at best, tenuous and, in any event, was attenuated by the prior question put to him by the state’s attorney: “Would it surprise you to learn that they were in fact stolen from somebody else?” This question was not objected to and not answered. But whether or not an inference could be drawn that the appellant stole the tags, it is apparent that the court did not require the appellant to answer the question propounded to him; there was no request for a mistrial when the state’s attorney announced he could not “prove today” that the tags were stolen; and no advisory instruction was sought from the court. We cannot agree that the court had an obligation “to give a sua sponte instruction to cure an error.” Thus, as in Woodell and Mercer, we must find that the issue is not properly, before us. Maryland Rule 1085. .

It is next contended that the judgment of conviction should be reversed because “the State did not sustain its burden of proving that the fair market value of the property in question was $100 or more.” The owner of the stolen automobile, a Mustang, testified that he had. paid “about $2,800” for it in 1966 and “to me it had a value of $2,000. I am talking about replacement.” He further stated that four months prior to its being stolen he had purchased tires for it, costing a total of $120. The police officer who received the car testified it was in average condition. While it is true that fair market value, rather than replacement value, is the required measure of value, Barber v. State, 23 Md. App. 655, we think the jury could draw a fair inference from the evidence of the original purchase price, the replacement value to the owner and the cost of the tires recently placed on the vehicle that the car had a fair market value in excess of $100. See Vucci v. State, 13 Md. App. 694. Even the appellant, whose defense was that he had purchased the car, asserted that the purchase price was $400. We find no merit in the contention.

Finally, it is contended that “The Court erred in refusing to instruct the jury * * * that they could not find that the Appellant had knowledge that the property in question was stolen only because they disbelieved his testimony denying such knowledge * * *,” citing Carter v. State, 10 Md. App. 50. In Carter we said, at 53: “Generally, disbelieving evidence provides no basis for finding evidence to the contrary; however, there is an exception involving scienter or guilty knowledge, i.e., reasons for disbelieving a denial of scienter may provide a basis for finding scienter.” We also said in Carter, at 55: “ * * * changes in defendant’s explanation or conflicting admissions may support a finding of scienter, since while either of defendant’s stories may be true, both cannot be and the changes indicate an attempt to hide the guilty knowledge.”

Here, the appellant, when first apprehended by the police, completely denied ownership of the vehicle. Later he changed his story by asserting that he had innocently purchased the car without knowledge that it had been stolen. Since these conflicting statements could support a finding of scienter, the instruction requested by the appellant was not required under the evidence. We agreed with the observation of the trial judge that the giving of such an unrequired instruction would have served only to confuse the jury.

We find no merit ifi the contentions, advanced pro se by the appellant, that the evidence was insufficient to sustain his conviction and that his trial counsel was incompetent. There was ample evidence from which the jury could find the appellant guilty of receiving stolen goods, Williams and McClelland v. State, 5 Md. App. 450, and the incompetency of counsel charge, not having been raised below, is not a proper issue in this appeal. White v. State, 17 Md. App. 58; Maryland Rule 1085.

Judgment affirmed.

Davidson, J.,

dissenting:

I do not agree with the majority that the State’s Attorney’s question as to whether it would surprise the appellant to know that Miss McCarthy had reported the license tags on the car found in his possession to be stolen, and the State’s Attorney’s statements, made in the presence of the jury, to the effect that the report of the theft of the license tags was “a matter of record” which “could be proved,” were not prejudicial because they did not support an inference that the appellant stole the tags. I believe that not only the State’s Attorney’s initial question and assertions, but also his subsequent line of questioning with respect to the ownership and transfer of the tags, which he himself described as designed to discredit the appellant’s testimony “that he had no reason to believe or suspect this car might be stolen,” were highly prejudicial. In my view, the State’s Attorney’s questions, coupled with his statements, not only raised the inference that the appellant had stolen the license tags and was, therefore, lying under oath when he denied the theft, but also supported the further inference that, in fact, he knew that the vehicle found in his possession was stolen property for which he could procure license tags only by illegal means. As a result of the injection of these inferences, based upon facts which were not in evidence, the jury was misled. Under these circumstances, the State’s Attorney’s failure to offer evidence establishing that the appellant had stolen the license tags, or to disclaim any intimation from his questions and assertions that the plates had been stolen, coupled with the trial court’s failure to stop the line of questioning and to give cautionary instructions to the jury indicating that they should disregard the State’s Attorney’s questions and statements, as well as any inferences therefrom, constituted reversible error.

The prosecutor should make no remarks in the presence of the jury calculated to unfairly prejudice the jury against the accused and to deprive him of a fair trial. It is unquestionably wrong for the prosecutor at any point in the trial, when in the presence of the jury, to refer to any matter not testified to by a witness or disclosed by the evidence in the case, including during an opening statement, during the trial, and in closing argument.

Not every improper remark made by counsel during the progress of the trial is cause for challenge or mistrial. What exceeds the limits of permissible comment depends upon the facts in each case. Unless it appears that the jury was actually misled or likely to have been misled or influenced to the prejudice of the accused by the remarks of the State’s Attorney, reversal of a conviction on this ground would not be justified. Finally, concerning what may be “prejudicial,” the Court of Appeals, in Wilhelm, supra, quoting from Gaither v. United States, 413 F. 2d 1061 (D. C. Cir. 1969), stated:

“The applicable test for prejudice is whether we can say, ‘with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.’ The decisive factors are the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.” (Citations omitted.)

In Esterline, supra, where a defense witness testified in support of self-defense, that immediately after the fight the appellant “had finger prints on his throat,” and the State’s Attorney in closing argument stated that had he known such evidence would be produced, he “could have produced a hundred witnesses to prove that there were no finger prints on his throat at that time,” the argument was held to be improper. There the Court said:

“It was undoubtedly improper for the State’s Attorney to have told the jury that he could have proved by a hundred witnesses the falsity of Mary J. Diehl’s testimony, that the prisoner had finger marks on his throat immediately after the shooting. This remark was objected to as improper, and the Court in the presence of the jury told the State’s Attorney that it was not proper for him to make that statement. The State’s officer then apologized for making it and promptly withdrew the objectionable statement.”

The conviction was not reversed.

In Meno, supra, the State’s Attorney interrupted a prosecution witness during cross-examination and, by way of answer to a question which had been asked of the witness, injected the statement that the deceased victim had told the witness that the accused had aborted her. Manifestly, the State’s Attorney’s statement consisted of hearsay evidence which would have been inadmissible had the State attempted to introduce it. The Court found that the prosecutor’s attempt to establish the accused’s criminal agency by putting before the jury facts which were not and could not be placed into evidence, constituted improper conduct. There the Court of Appeals said:

“The statement made by the State’s Attorney could not have been admitted in evidence if it had been testified to by the witness, for it was clearly hearsay. For the State’s Attorney to inject it into the case in the manner he did was highly improper, and he should have been checked immediately by the Court, and the jury instructed to totally disregard his remark, neither of which things appear to have been done. . ..
“ . . . The remark of the State’s officer was not checked by the Court, nor were the jury cautioned or instructed by the Court to pay no heed to it. In such a condition it seems impossible that the jury should not have been unduly prejudiced against the accused.”

The conviction was reversed.

In Newton, supra, remarks by the prosecutor were found to be improper. There, in a dialogue with the court as to whether or not the defendant could testify that an audit had been made, he replied, in the presence of the jury:

“No. Sir, because I have tried this very traverser and heard him swear that he did not.”

The court then said:

“That these remarks on the part of the State’s attorney were exceedingly improper and calculated to unfairly prejudice the jury against the defendant, is scarcely a matter for argument, and the court should have warned the jury to disregard them. But as the remarks were upon motion stricken out, and as the traverser at the time asked for no other action on the part of the court, we do not regard its failure to so warn the jury as reversible error.”

In Cook, supra, an accused, in response to a question from the State’s Attorney on cross-examination, stated that he was “pretty sure” he had never been convicted of a crime. Notwithstanding this response, the State’s Attorney repeatedly questioned the accused as to whether he had been convicted on a specified date for a named offense. The appellant’s counsel moved for a mistrial. The court there said:

“The State’s Attorney did not then, nor at any subsequent time, proffer to show that the appellant had been convicted of a crime, as was so strongly intimated in his questions, nor did he ask leave of the court to explain to the jury that he desired to disclaim any intimation from his question that the defendant had previously been convicted of a crime.
The questions were, we think, highly improper in the absence of the State being able to establish that the defendant had been convicted in accordance with the statement of the State’s Attorney; and, were it not for the care with which the trial court explained the matter to the jury, would require a reversal of the judgment and a new trial.”

In Woodell, supra, the State’s Attorney, after asking the accused about two prior criminal convictions, which he admitted, proceeded to question him concerning convictions of assault by threat, public drunkenness, passing a worthless check, and exceeding the speed limit in a motor vehicle, all of which allegedly occurred in Raleigh, North Carolina. The accused stated that he did not remember the assault and drunkenness convictions, that he had not been convicted of passing a worthless check or of speeding, and that he had never been in Raleigh, North Carolina. The State’s Attorney then alluded to the accused’s F.B.I. record, and asked him whether he thought anyone else had his fingerprints, the clear implication being that the State’s Attorney had access to his F.B.I. record which indicated that he had been convicted of these offenses. The State’s Attorney failed to proffer evidence that the accused had been convicted of these crimes.

The Court of Appeals found the State’s Attorney’s conduct to be a more extreme example of improper conduct than that contained in Cook because the State’s Attorney had sought to buttress his intimation that the accused was lying in denying the convictions by referring to his criminal record on file with the F.B.I. The Court there said:

“If the State’s Attorney chooses not to offer appropriate evidence of the prior conviction, he should, under the dictates of Cook, seek leave of court to explain to the jury that he disclaims any intimation from his question that the defendant had previously been convicted of such crime. Failure to do so may result in an appellate reversal of the conviction where the error cannot be deemed harmless, and the point is properly preserved for review on appeal.
“Appellants here entered no objection to the questions propounded by the State’s Attorney, and neither moved for a mistrial nor sought an advisory instruction from the court as they might have done under Cook. Under these circumstances, the matter was not before the trial judge for a ruling and consequently is not properly before us for review. Maryland Rule 1085.” (Citations omitted.)

In Reidy, supra, where “self-defense was the heart and soul of appellant’s defense,” the prosecutor in closing argument stated:

“It is really no self-defense here. It is a fiction manufactured by the defense counsel.”

The court held the prosecutor’s comment to be improper, and said:

“The prosecutor’s remark to the jury that appellant’s claim of self-defense was ‘a fiction manufactured by the defense counsel’ could have been interpreted by the jury to mean that defense counsel suborned perjury or that he fabricated the defense, or that the defendant himself committed perjury in testifying that he committed the homicide in self-defense. And by declining defense counsel’s request that the prosecutor apologize, and in finding nothing ‘improper’ in the prosecutor’s remarks, the court’s action may have been considered by the jury as tantamount to judicial approval of the propriety of such argument. And again, when defense counsel’s statement to the jury that the prosecutor’s remarks were improper, and constituted professional misconduct was objected to by the prosecutor, the trial judge did nothing to dispel the fact that the prosecutor’s remarks had indeed been improper. It is against this background that we determine whether appellant’s right to a fair trial was thereby so prejudiced as to constitute a denial of his right to a fair trial.
“Where, as in the present case, the prosecutor’s remarks had such a clear potential of prejudicing appellant’s right to a fair trial, and objection was immediately made thereto on the ground that they were ‘absolutely improper and out of order,’ we think the situation thus created was one screaming out for the forceful interdiction of the trial judge and, at the least, a directive to the prosecutor to apologize to defense counsel for the remark — this being all that defense counsel had requested be done. But even without the apology sought by the appellant, it is not unlikely that the jury would have considered the prosecutor’s remarks, standing alone, as the practical equivalent of an argument that the claim of self-defense was so far-fetched that it was utterly devoid of any merit. Had not the trial judge, therefore, in referring to the prosecutor’s remarks, instructed the jury that ‘it is no improper remark,’ a different case may well have been presented than that now before us.
“We, of course, have no way of knowing whether the jury was actually misled or prejudicially influenced by the remarks in question. We do know, however, that self-defense was the heart and soul of appellant’s defense, and that the prosecutor’s remarks had a clear tendency, particularly when not neutralized by the trial judge, to convey the thought to the jury that defense counsel suborned perjury, or that he fabricated the defense, or that the defendant himself committed perjury in testifying that he committed the homicide in self-defense. With the case in this posture, it went to the jury and while it would appear from the record that appellant’s claim of self-defense had little support in the evidence, nevertheless, . . . ‘[c]onviction should be the result of a fair trial and not of the conclusions which a court of review may reach from a consideration of the evidence contained in the record where there has not been a fair trial.’ ” (Emphasis added.)

Finally, in Howard, supra, where the accused’s identification was central to the defense, the prosecutor in closing argument referred to an out-of-court photographic identification of the accused by the rape victim, which had not been introduced into evidence. The appellant made a prompt motion for mistrial. This Court held the argument improper and extremely prejudicial under the facts of that case, despite the victim’s in-court identification of the accused and evidence of the presence of his fingerprints on the victim’s car. This Court said:

“In the instant case it is true there was an in-court identification but the short time and the conditions under which the observation of the criminal was made render the identification more suspect than other identifications which are predicated upon a scrutiny of longer duration and under more favorable conditions. It is true, of course, that the fingerprints on the hood of the car evidence that the appellant’s fingers had at some time come into contact with the hood of the car. With this record, we cannot say the jury would not have accepted the explanation, implausible though it may be, of the sixteen year old appellant that his prints were implanted while he was horseplaying on a parking lot in a shopping center. When the evidence concerning the prior photographic identification was improperly presented to the jury, we cannot say that the error was not prejudicial. Indeed, we find it to be extremely prejudicial and further find that the court’s admonitions to disregard the statement were not sufficient to overcome this prejudice.”

The court reversed and ordered a new trial.

These cases unequivocally establish that the questions and assertions of the State’s Attorney here, to which the appellant did initially object, were improper. The only significant question to be determined is whether this conduct was prejudicial in that it actually misled or was likely to have misled the jury or influenced it to the prejudice of the accused so that reversal of the conviction would be justified.

The record here shows that the only evidence to support the appellant’s conviction consisted of his possession of the recently stolen automobile. His conviction hinged entirely upon the inference that, absent a satisfactory explanation, the possessor of recently stolen goods is the thief or the receiver. Consequently, the appellant’s only possible defense consisted of offering a satisfactory explanation as to how he came into possession of the automobile. The appellant promptly objected to conduct on the part of the State’s Attorney which would place before the jury faets which the State’s Attorney knew he was then unable to prove. Neither the State’s Attorney nor the court took any action to overcome the likelihood of prejudice which had been created hy the State's Attorney's original question and his unnecessary assertions that the report of the theft of the license tags was a matter of record and that it could be proved. The State’s Attorney neither “withdrew” the objectionable question and statements, nor disclaimed any intimation that might be drawn from them, and the court did not inform the jury that the question and the assertions were improper, did not strike them, and did not admonish the jury to disregard them. Indeed, despite the fact that the appellant had objected to the State’s Attorney’s improper conduct, the court thereafter not only permitted but actually encouraged the State’s Attorney to capitalize on the prejudicial effect of his previous improper conduct, by requiring the appellant to answer a persistent series of questions designed to support the inference that the license tags on the car found in the appellant’s possession had, in fact, been stolen by him.

This is not a case in which the State had “overwhelming evidence” of guilt so that the impact of the State’s Attorney’s questions and assertions, even if improperly considered on the merits, was merely cumulative on the ultimate issue of guilt or innocence. Rather, the conduct of the State’s Attorney affected the central issue of the case, namely, whether or not the appellant had a credible and satisfactory explanation of his possession of the recently stolen automobile. A credible explanation was the heart and soul of the appellant’s defense and the prosecutor’s questions and assertions had a clear tendency, particularly when not neutralized by the trial judge, to convey the thought to the jury that the appellant had committed perjury when he denied the theft of the license tags and, therefore, when he denied knowledge of the fact that the vehicle found in his possession was stolen property.

Trial judges have an obligation to afford an accused a fair and impartial trial. Even in the absence of an objection, and/or a request that the court admonish the State’s Attorney, admonish the jury, strike the statements, or declare a mistrial, the trial court should have taken immediate corrective action. I think, under the present circumstances, where the prosecutor’s conduct had such a clear potential of prejudicing the appellant’s right to a fair trial, and an objection was immediately made thereto on the ground that facts which the State’s Attorney knew he was then unable to prove were being placed before the jury, the situation here, as in Reidy, supra, was “screaming out” for the forceful interdiction of the trial judge, and, at the least, a directive to the prosecutor that he disclaim to the jury any intimation from his questions and assertions that the appellant had stolen the plates from a Miss McCarthy. I would hold, on the facts of this case, that because of the improper nature of the prosecutor’s questions and statements, the closeness of the case, the centrality of the issue affected by the error, and the trial judge’s failure to take appropriate corrective action to mitigate the effects of the error, the judgment should be reversed.

Manifestly, I do not agree with the majority that the questions of whether certain of the State’s Attorney’s conduct during the trial was improper, prejudicial and, under the circumstances, warranted reversal, were not properly preserved for review. It has been recognized that where a defendant might otherwise be denied due process by the improper conduct of a State’s Attorney during trial, not only is the trial court, even without an objection, obliged to take action, but also the appellate court, even without an objection, may and should on its own motion reverse a conviction. Thus, in Holbrook, supra, in considering the preservation on appeal of the question of the impropriety and prejudicial effect of statements of a prosecutor, this Court said:

“We note also that there is an obligation on the trial court in certain circumstances even in the absence of objection. In Viereck v. United States, 318 U. S. 236 the accused did not object at the time ‘highly prejudicial’ remarks were made by the prosecutor, but objected during the court’s charge to the jury, which objection was overruled as too late. The Supreme Court said that the trial judge should have stopped counsel’s discourse without waiting for an objection. In Meno v. State, supra, the Court said, regarding the ‘highly improper’ action of the State’s Attorney in injecting an improper statement into the case (not in argument), that ‘he should have been checked immediately by the Court, and the jury instructed to totally disregard his remark.’ And the trial court’s responsibility may not end with overruling [sic] an objection made. ‘[I]n addition to sustaining an objection to an improper remark or misconduct, (the trial court) is also entrusted with further responsibility to caution or reprimand the State’s Attorney as the exigencies of the situation may require and to forthwith instruct the jury to disregard the unwarranted remarks and conduct of the prosecuting attorney.’ Contee v. State, supra, 584. And even absent an objection or action by the trial court, ‘[i]t is, of course, true that in a criminal case where grave error has been committed, and the accused is thereby denied due process, an appellate court may and should on its own motion, reverse the conviction. Apple v. State, supra, 667-668.” (Footnote omitted, emphasis added.)

Here the record shows that there was an objection to the State’s Attorney’s conduct so that the question of its propriety and prejudicial effect was brought to the attention of the trial court at a time when it had an opportunity to correct the situation. When read in context, the record shows that the appellant had denied that he had stolen the plates subsequently found on the vehicle in his possession, from his friend, Miss McCarthy. Thereafter, the State’s Attorney asked: “Would it surprise you to know that she reported [the license plates] as stolen to the Alexandria police?” The appellant objected, “[u]nless the State can prove that.” The ground of his objection, while not articulated, when read in context, was plain. He was objecting to conduct on the part of the State’s Attorney which would implant in the minds of the jury facts which were not in evidence and which the State’s Attorney knew full well he was then unable to prove. The State’s Attorney not only indicated that he was then unable to prove that the plates had been reported as stolen, which was all that was necessary to respond to the appellant’s objection, but went further by stating, in the presence of the jury: “It is a matter of record. It could be proved.” While the trial court made no statement on the record that the objection to the State’s Attorney’s initial question was overruled, its subsequent conduct in failing to take action with respect to the State’s Attorney’s improper assertions and in requiring the appellant to answer a persistent series of questions designed to support the inference that the license tags on the car found in the appellant’s possession had, in fact, been stolen by him, makes it obvious that the objection was implicitly overruled. Thereafter, it was not necessary, in my view, for the appellant, in order to preserve the point for review, to repeat his objection or move to strike or move for a mistrial, as the State’s Attorney’s improper conduct continued.

The simple fact disclosed by this record is that the appellant, at the earliest possible moment, objected to the State’s Attorney’s improper conduct and that that objection was not sustained. As a result, the appellant was severely prejudiced. So far as I am concerned, under these circumstances, the questions of whether the State’s Attorney’s conduct was improper, prejudicial and warranted reversal, were properly preserved.

I respectfully dissent.

      . Newton v. State, 147 Md. 71, 92, 127 A. 123, 132 (1924); Meno v. State, 117 Md. 435, 440-43, 83 A. 759, 761 (1912).

      . Wilhelm v. State, 272 Md. 404, 412, 326 A. 2d 707, 716 (1974); Clarke v. State, 238 Md. 11, 19-20, 207 A. 2d 456, 460-61 (1965); Ott v. State, 11 Md. App. 259, 266, 273 A. 2d 630, 634-35, cert. denied, 262 Md. 748 (1971).

      . Cook v. State, 225 Md. 603, 609, 171 A. 2d 460, 463 (1961); cert. denied, 368 U. S. 970, 82 S. Ct. 455, 7 L.Ed.2d § 98 (1962); Newton, supra, 147 Md. at 92, 127 A. at 132; Meno, supra, 117 Md. at 440-43, 83 A. at 761; Woodell v. State, 2 Md. App. 433, 439, 234 A. 2d 890, 893 (1967).

      . Esterline v. State, 105 Md. 629, 637, 66 A. 269, 272 (1907); Howard v. State, 19 Md. App. 673, 676, 313 A. 2d 567, 568 (1974); Reidy v. State, 8 Md. App. 169, 172, 259 A. 2d 66, 68 (1969).

      . Wilhelm, supra, 272 Md. at 415, 326 A. 2d at 715-16; Howard, supra, 19 Md. App. at 676, 313 A. 2d at 568.

      . Wilhelm, supra, 272 Md. at 416, 326 A. 2d at 716.

      . Esterline, supra, 105 Md. at 637, 66 A. at 272.

      . Meno, supra, 117 Md. at 442, 83 A. at 761.

      . Newton, supra 147 Md. at 92, 127 A. at 132.

      . Cook, supra, 225 Md. at 609, 171 A. 2d at 463.

      . Woodell, supra, 2 Md. App. at 439, 234 A. 2d at 893-94.

      . Reidy, supra, 8 Md. App. at 172, 259 A. 2d at 68.

      . Id., at 178-79, 259 A. 2d at 71.

      . Howard, supra, 19 Md. App. at 676-77, 313 A. 2d at 569.

      . Anglin v. State, 244 Md. 652, 656-57, 224 A. 2d 668, 670 (1966), cert. denied, 386 U. S. 947, 87 S. Ct. 984, 17 L.Ed.2d 877 (1967); Debinski v. State, 194 Md. 355, 360, 71 A. 2d 460, 462 (1950); Jordan v. State, 24 Md. App. 267, 274, 330 A. 2d 496, 501 (1975).

      . Meno, supra, 117 Md. at 442, 83 A. at 761; Fryson v. State, 17 Md. App. 320, 326, 301 A. 2d 211, 214 (1973); Conway v. State, 7 Md. App. 400, 414, 256 A. 2d 178, 186 (1969); Holbrook v. State, 6 Md. App. 265, 271-72, 250 A. 2d 904, 907-08 (1969); see Cook, supra, 225 Md. at 609, 171 A. 2d at 463 (dictum); Contee v. State, 223 Md. 575, 584, 165 A. 2d 889, 894-95 (1960) (dictum).

      . Apple v. State, 190 Md. 661, 667-68, 59 A. 2d 509, 512 (1948).

      . Holbrook, supra, 6 Md. App. at 271-72, 250 A. 2d at 907-08.

      . Shoemaker v. State, 228 Md. 462, 467. 180 A. 2d 682, 684 (1962); see Contee, supra, 223 Md. at 583, 165 A. 2d at 894 (dictum.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    THOMAS A. GARLAND v. MARY R. GARLAND
    [No. 124,
    September Term, 1975.]

      Decided January 28, 1976.

      The cause wás argued before Morton, Powers and Mason, JJ.

      Terry B. Blair and William T. Glasgow for appellant.
    No appearance for appellee.
   Powers, J.,

delivered the opinion of the Court.

This appeal is from an order entered in the Circuit Court for Baltimore County by Judge Kenneth C. Proctor finding the appellant in contempt of that court. Because procedural requirements and the manner of the punishment flow from the nature of the proceeding, State v. Roll and Scholl, 267 Md. 714, 730, 298 A. 2d 867 (1973), which modified and affirmed Roll and Scholl v. State, 15 Md. App. 31, 288 A. 2d 605 (1972), we shall first examine the law relating to contempts.

The Court of Appeals said in State v. Roll and Scholl, supra, at 727:

“Today, contempts are classified as civil or criminal and at least in theory either of these may be direct or constructive. The various categories are not mutually exclusive and in fact the nomenclature assigned to a contempt involves both classes, e.g., a constructive civil, or a direct criminal contempt. Historically, criminal contempts were positive acts which offended the dignity or process of the court. Holding an offending party in contempt of court was designed to vindicate the authority and power of the court and punish disobedience to its orders. The people were considered as the real interested parties to prosecution and the State was generally the prosecutor.”

The Court went on to say, at 728:

“ * * * the distinction between the two types of contempt has been preserved and is important. A civil contempt proceeding is intended to preserve and enforce the rights of private parties to a suit and to compel obedience to orders and decrees primarily made to benefit such parties. These proceedings are generally remedial in nature and are intended to coerce future compliance. Thus, a penalty in a civil contempt must provide for purging. On the other hand, the penalty imposed in a criminal contempt is punishment for past misconduct which may not necessarily be capable of remedy. Therefore, such a penalty does not require a purging provision but may be purely punitive. In this State, to these factors must be added the degree of proof required to establish a contempt — a civil contempt need be proved only by a preponderance of the evidence, while a criminal contempt must be shown beyond a reasonable doubt.”

Basic criteria applicable for determining if a proceeding is for civil contempt were delineated in Winter v. Crowley, 245 Md. 313, 226 A. 2d 304 (1967). They have been quoted in State v. Roll and Scholl, supra; McDaniel v. McDaniel, 256 Md. 684, 262 A. 2d 52 (1970); and Pearson v. State, 28 Md. App. 464, 347 A. 2d 239 (1975), and we need not repeat them here.

With these authorities in mind, we look to the Maryland Rules, Subtitle P, which govern procedures in contempt cases. Beyond providing, Rule P2, that the subtitle shall apply to both, the P Rules make no attempt to distinguish between civil contempts and criminal contempts. For the distinction between constructive and direct contempts we look to Rule PI, which contains these definitions:

“a. Direct Contempt.
A ‘direct contempt’ means a contempt committed in the presence of the court, or so near to the court as to interrupt its proceedings,
b. Constructive Contempt.
A ‘constructive contempt’ means a contempt which was not committed in the presence of the court, or so near to the court as to interrupt its proceedings.”

By a decree entered in the Circuit Court for Baltimore County on 16 May 1973 the appellee here, Mary R. Garland, was granted a divorce from the appellant, Thomas A. Garland. The decree contained orders concerning custody and support of children, and alimony. The decree was later modified in some respects not material to this appeal.

The current phase of the original case began with a “Petition For Contempt Citation” filed by Mrs. Garland on 23 December 1974. On the same day the court issued a Show Cause Order. That order was not served, and the court, on 30 January 1975 issued another, identical with the first except for dates. It ordered:

«* * * ^at the Defendant, Thomas A. Garland, show cause on or before the 14th day of February, 1975, why the relief prayed in the foregoing Petition should not be granted, provided a copy of the Petition and this Order be, served upon him or his attorney of record on or before the 6th day of February, 1975.”

Timely service of the order and the petition was made. Mr. Garland responded by filing a combined answer and motion to dismiss. Although there is no written order or docket entry in the record, it is apparent that the case was set for a hearing, to be held on 3 March 1975, and that Mr. Garland had notice of the hearing date. The record contains a transcript of proceedings held on 4 March 1975, concluding with the finding of contempt from which this appeal was taken. Mrs. Garland, the nominal appellee, filed no brief and made no argument in this Court.

Mr. Garland’s response to the petition and the show cause order was, as we have said, a combined answer and motion to dismiss. He asserted that the order was illegal because it failed to comply with Rule P4; that the petition lacked the character of a contempt proceeding in that it did not allege that he was at fault in any failure to comply or was deliberately failing to comply with the order of the court, but required him to respond to allegations of a private party rather than to findings of the court. He also contended that the order was invalid because it violated Rule 324 b 3 by requiring an answer sooner than 10 days from the date of service.

By way of showing cause why the relief prayed should not be granted Mr. Garland answered that “Any failure on his part to comply with the orders of this Honorable Court has been the result of inability to do so and without any intent to frustrate, avoid or otherwise circumvent the said Order.”

With this factual outline, and in the light of the controlling authorities, we have no difficulty in holding that Mr. Garland was charged with a constructive civil contempt. The procedure to be followed is prescribed in Rule P4, Constructive Contempt, which we set out in full:

“a. Who May Institute.
Constructive contempt proceedings may be instituted by the court of its own motion, by the State’s attorney or by any person having actual knowledge of the alleged contempt.
b. Notice to Defendant.
1. Show Cause Order.
(a) Issuance.
If the court determines to cite the defendant for contempt, it shall issue an order requiring the defendant to show cause why an order adjudging him in contempt shall not be passed within the time stated therein.
(b) Contents.
The show cause order shall state the time and place of hearing, allowing a reasonable time for the preparation of the defense, and shall state the essential facts constituting the contempt charged.
(c) Service.
The show cause order shall be served upon the defendant pursuant to Rule 104 (Service of Process — Generally) unless the defendant has appeared as a party in the action in which the contempt is charged, in which case service shall be in the manner prescribed by the court.
2. Written Statement.
A copy of any writing or document filed in support of the alleged contempt shall also be served upon the defendant.
c. Default — Answer.
If the defendant shall answer, the charge shall be set for hearing. If no cause be shown within the time named in the order, the case shall be heard ex parte.
d. Hearing.
1. Appointment of Prosecutor.
The court may designate the State’s attorney or any other member of the bar to prosecute the proceeding.
2. When Judge Disqualified.
Unless a defendant otherwise consents, the judge who issued a citation for constructive contempt shall be disqualified from presiding at the hearing except where such contempt consists of failure to obey an order or judgment in a civil case.”

In his brief in this Court appellant states the single Question Presented in this way:

“Can there be an adjudication of constructive contempt without compliance with the Maryland Rules as to the pleádings, the preliminary orders and a ‘hearing’ in fact?”

Obviously the question as worded requires a negative answer. We shall rephrase the question, and ask ourselves whether there was, in this case of constructive civil contempt, substantial compliance with the applicable rules, including a hearing, and whether the facts before the court, with rational inferences, were sufficient to permit the court to find, by a preponderance of the evidence, that the appellant was in contempt of court.

Appellant does not contend on appeal that the petition which initiated this proceeding was insufficient because it did not affirmatively allege that he was able to pay; he does not contend that he was denied due process of law because the show cause order required an answer eight days after service rather than 10 days, as provided in Rule 324 b 3. Still another question of pre-hearing procedure, apparent from the record, is not argued here. That is that the show cause order did not state the time and place of hearing, as Rule P4 b 1 (b) requires. The time and place of such proceedings as were held, which appellant contends was not a hearing, were set later, some time after appellant filed his answer. He does not claim that notice was not given.

What occurred between the filing of Mr. Garland’s answer and motion to dismiss on 18 February 1975, and 4 March 1975 when he was found to be in contempt of court, we must piece together from the record, from appellant’s brief, and from statements made by appellant’s counsel during oral argument. The record contains a letter dated 21 February 1975 from Mrs. Garland’s counsel to the clerk transmitting an order directing the clerk to issue a summons for Thomas A. Garland to appear in court in Towson on 3 March 1975 at 10:00 A.M. It does not appear that a summons was actually issued, although next in the record are a receipt for certified mail addressed to Mr. Garland and a return receipt signed with the name “William Glasgow”, who is one of Mr. Garland’s attorneys of record. Neither bears a date.

Appellant’s brief tells us “The case was scheduled for hearing on March 3, 1975.” We are told that no hearing was held at that time but that counsel for both parties talked with Judge Proctor. It was explained to Judge Proctor that Mr. Garland, a practicing attorney, was appearing in a case in the City of Baltimore and was unable to be present. There was a suggestion of an amount to be paid immediately to reduce the arrearage, and of a schedule for increased payments in the future, with the excess of each payment over the amounts currently accruing to be applied against the remaining arrearage. It appears that a tentative agreement was reached, but that Judge Proctor insisted that Mr. Garland appear personally before him the next day and that the agreement be made a matter of record. Although there is no docket entry reflecting it, we think it may be said that the hearing scheduled for 3 March 1975 was continued to the following morning, 4 March 1975.

In Reamer v. Reamer, 246 Md. 532, 229 A. 2d 74 (1967), the Court of Appeals reversed a finding of constructive contempt against a former husband, who was never served with a copy of the show cause order or the petition. The Court reviewed the requirements of Rule P4, and said, at 535:

“These rules are declaratory of the basic requirements of due process of law in the prosecution of constructive contempts.”

We cited Reamer in Savage v. State, 19 Md. App. 1, 308 A. 2d 701 (1973), cert. granted, 270 Md. 742 (1973), appeal dismissed, 12 December 1973. We said, at 16:

“The procedure followed by the court was in substantial compliance with Rule P4 concerning constructive contempt actions.”

Here too, we hold that the proceedings leading up to the hearing held on 4 March 1975 were in substantial compliance with the requirements of due process of law as expressed in Rule P4.

The transcript of the proceedings which took place on 4 March 1975 opens with comments by Judge Proctor and counsel for both parties to summarize the discussion of the previous day. There was agreement that the arrearage amounted to $3,685; that the sum of $1,000 was to be paid on that day and an additional payment of $200 was to be made on 24 March, and that one half of both would be applied to the arrearage. The other $600 from these two payments would be applied to the weekly payments to accrue in the next four weeks, and thereafter double payments would be made weekly, with one half to apply to the remaining arrearage.

At this point Mr. Garland interposed, “Your Honor, that’s — the first part of that sounds good, but no way in God’s earth I can promise to pay $200.00 a week on March 1st or any other time.” After some colloquy, Judge Proctor said: “Mr. Garland, you have a choice and that is, you are either going to pay so that these arrears — I’m being lenient with you by doing this. This is a proposal that Mr. Glasgow made yesterday to get you out of this mess.” Mr. Garland stated that the payments proposed were more than he earned and that he could not make that promise in good faith to the court. The court made it clear that the only thing before him was that the defendant owed $3,685 of arrears, and the question was whether he was in contempt of court. Mr. Garland then tendered to the court what he described as a written statement, which was included in the record. It consists of some 17 handwritten pages, which Mr. Garland said he wanted to keep confidential except for counsel. The judge said, “Hand it back and tell me what it says in substance.”

Further colloquy took place, largely between Judge Proctor and Mr. Garland, with some participation by counsel. Mr. Garland mentioned other debts and obligations, legal and moral, which he had.

We see nothing in the transcript to indicate that Mr. Garland was not afforded a full opportunity to present any facts he wished to present to the court. The proceedings were concluded when Judge Proctor said:

“Well, I am not going to fool with you. Stand up, Mr. Garland. I find you in contempt of court. The sentence is you are sentenced to the Baltimore County Jail for six months. Purge yourself of contempt, you can get out. Sit right there until I get a sheriff.”

We are satisfied that this proceeding was a hearing or, at the least, was an opportunity for whatever hearing the appellant wanted to have. Aside from his experience as a practicing attorney, it appears from the record in this case that Mr. Garland was quite familiar with hearings on citations for contempt for failure to pay money which the court ordered him to pay. A previous contempt finding in this same case reached this Court and was affirmed in Garland v. Garland, 22 Md. App. 80, 321 A. 2d 808, cert. denied, 272 Md. 741 (1974).

Even though the proceedings did not in all respects follow the conventional pattern — the evidence was not presented in question and answer form under oath — Mr. Garland was in no way restricted in his presentation.

It is not contended here that at the hearing there was a burden on the petitioner to make an affirmative showing by evidence that Mr. Garland was able to pay. To be sure, inability to pay may be offered as a defense, but the defendant must show it. In Johnson v. Johnson, 241 Md. 416, 216 A. 2d 914 (1966), the Court of Appeals had before it the propriety of holding in contempt a father who had failed to comply with an order that he make payments for support of his children. The Court remanded the case, without affirmance or reversal, for further proceedings. It said, at 418-20:

‘The father contends that through no fault of his own he was unable to make the payments required by the court, that the lower court erred in refusing to reduce the amount of the support payments and that he should not have been adjudged to be in contempt. Whether or not the father was subject to incarceration depends on whether he was able to meet the obligation imposed on him by the support order.
* * *
“If the father was unable to meet his obligation because he had neither a sufficient estate nor the then ability to pay, as the record seems to indicate, the court was not justified in incarcerating him. For a year or more he had claimed that he was unable to meet the obligation imposed on him by the decree. He had filed several petitions for the reduction of the support payments which were either denied or not even heard. And when he offered to testify as to his earning capacity and his ability generally to meet his obligation, the court stated that it was not inclined to take his testimony. Until he was given an opportunity to show that he had neither the estate nor the ability to pay his obligation and failed to make such a showing, he should not have been incarcerated. The purpose of imprisonment for contempt is to compel compliance with a court order but where the person alleged to be in contempt can establish a valid defense, such as the unintentional inability to obey the order, imprisonment is not proper.”

In the case before us, Mr. Garland was given an opportunity to show that he had neither the estate nor the ability to pay his obligation. He failed to make such a showing to the satisfaction of Judge Proctor. We think Judge Proctor’s finding was supported by the evidence before him and was not clearly erroneous. Maryland Rule 1086.

We note that the commitment in the record and the clerk’s docket show the sentence to be six months in the Baltimore County Jail. The clerk failed to give effect to Judge Proctor’s statement when he imposed the sentence, “Purge yourself of contempt, you can get out.” In McDaniel v. McDaniel, supra, the Court of Appeals pointed out that the finding of contempt against a non-paying father and the sentence that the court imposed for that contempt were proper, except for the requirement that in a civil contempt case the contemnor must be given the right to purge himself. The Court remanded the case for modification and, as modified, affirmed. In this case the clerk of the lower court should correct the docket entry and the commitment to conform to the court’s order.

Order affirmed.

Case remanded for correction of docket entry and commitment.

Appellant to pay costs.

      . The record shows that the order was served on 6 February 1975 and that Mr. Garland’s answer was filed on 18 February 1975,12 days later.


author: Morton, J.,

text:
    FREDERICK W. STEPHENS v. LEWIS C. DIXON
    [No. 225,
    September Term, 1975.]

      Decided January 28, 1976.

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

      Herbert D. Morrison, with whom was Ted R. Hudson on the brief, for appellant.

      Donald J. Gilmore, with whom were Charles O. Fisher and Walsh, Fisher & Gilmore on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant brought a two-count civil action against the appellee in the Circuit Court for Carroll County charging assault and battery in Count I and defamation of character in Count II. The trial judge allowed the assault and battery count to go to the jury which returned a verdict in favor of the appellee. He granted a directed verdict in favor of the appellee on the defamation count at the conclusion of the appellant’s case.

In this appeal it is contended that the trial judge committed error in his instructions to the jury with respect to the alleged assault and battery and in directing a verdict for the appellee on the defamation count.

The record indicates that appellant, Frederick W. Stephens, lived on a farm near Mount Airy, Maryland. For several years he had been employed as an engineer at the National Institute of Health (NIH). The appellee, Lewis C. Dixon, was the Mayor of Mount Airy and also employed by the Naval Service Reference Center.

In October, 1968, Mr. Stephens became aware of the fact that the town of Mount Airy had decided to locate a sewage treatment plant on what was then Mr. Stephens’ property. In August, 1969, negotiations began concerning compensation to Mr. Stephens. A private settlement was never reached and the property was finally obtained by the town through condemnation proceedings.

On June 18, 1973, Mr. Stephens attended a town meeting to lend support to a community association on a matter unrelated to the present case. Mr. Stephens testified at the trial below that toward the end of the meeting he attempted to make a statement to the effect that he was waiting to receive answers to letters he had written to the mayor “about deficiencies in the construction [of the treatment plant] on my farm.” The meeting apparently adjourned before Mr. Stephens was able to say anything so he decided to follow the mayor into an adjoining room to discuss his grievance with the mayor personally. When Mr. Stephens asked the mayor for a written response to his letters, the mayor, according to Mr. Stephens, indignantly responded that “we’re not going to write you anything.” At this point the discussion ripened into a rather heated argument. The mayor requested Mr. Stephens to leave. Mr. Stephens refused. A physical encounter ensued and continued until several people entered the room and broke it up.

According to Mr. Stephens, the mayor began the physical altercation. The mayor claimed he acted in self-defense. Eric Green, a staff writer for the Frederick News Post who witnessed the episode, could not remember who threw the first punch.

For several months thereafter the local newspapers carried stories of the incident which included statements allegedly made by the mayor concerning the altercation and the culpability of the participants. The controversy culminated in a 2,000 word written statement by the mayor describing his version of the incident which he read into the minutes of a town council meeting in October, 1973, and then made copies available to the press. As a result of the mayor’s statement, the town council passed a resolution barring Mr. Stephens from attending meetings “until he publicly apologizes to this Body and the Mayor for his misconduct.”

We turn first to appellant’s contentions with respect to the trial judge’s instructions. He urges that the failure “to instruct the jury that an assault and battery includes an unlawful touching of another by the aggressor” constituted reversible error. Since the omission was not objected to below, and appellant concedes this, the issue was not properly preserved for review by this Court. Maryland Rule 554 e. See also Podolski v. Sibley, 12 Md. App. 642 (1971).

Before punitive damages can be awarded for civil assault and battery, malice must be shown. Vancherie v. Siperly, 243 Md. 366 (1966). Appellant contends that the trial judge erred “in failing to instruct the jury that malice can be inferred from the act of a public official violently depriving a citizen of his right peaceably to petition the government.” He argues that persons who violate the Federal Civil Rights Act, 42 U.S.C. § 1981 et seq., may be held liable for punitive damages. By analogy, he asserts, “The jury should have the right to decide whether the assault and battery were performed with the purpose of depriving the Plaintiff-Appellant of his right to assemble and petition the government * * *.”

The short answer to this contention is that no such analogy exists. If appellant believed that his constitutional rights were violated, he should have filed suit alleging violation of 42 U.S.C. § 1983 of the Federal Civil Rights Act. The trial judge had no reason to instruct the jury that they could infer malice from an infringement of appellant’s First Amendment rights when appellant did not even allege in his declaration that such an infringement occurred.

Even if appellant had alleged a malicious infringement of his First Amendment rights, appellant’s proper method of recovery would be via 42 U.S.C. § 1983. To say that the mayor maliciously deprived appellant of a constitutional right is quite different from saying that the mayor maliciously committed an assault and battery on appellant. “A wrongful deprivation of appellant’s civil rights” may be indicative of malice under 42 U.S.C. § 1983, but certainly it is not evidence of malice on a count charging assault and battery.

The trial judge advised the jury, at considerable length, that before they could assess punitive damages for the alleged assault and battery, they must first find that the appellee acted with malice toward the appellant and the trial judge proceeded to give the jury a comprehensive definition of the word “malice.” Under the circumstances, we find appellant’s contention with respect to this segment of the instructions to be without merit.

The appellant also contends that the trial judge erroneously failed to instruct the jury that the appellee must prove, by a preponderance of the evidence, that he acted in self-defense.

Although appellant timely objected to the omission of his requested charge, he failed to state “the ground of his objection” as required by Maryland Rule 554 d. Nevertheless, where the ground is evident, the issue will be considered, notwithstanding the failure to comply with the rule. Kowalewski v. Carter, 11 Md. App. 182 (1971). In the present case, it is clear that the appellant believed the jury was entitled to know who had to prove self-defense and the quantum of proof necessary to sustain the plea.

The law in Maryland places the burden of proving justification in an assault and battery count upon the defendant. Sellman v. Wheeler, 95 Md. 751 (1902). In that case, holding that an instruction on the burden of proof had been properly given at the trial below, the Court stated, at 757:

“The rule has been well stated in Blake v. Damon, 103 Mass. 199, thus: Tf plaintiff alleges acts which if proved, and not justified, will sustain his action, and the defendant seeks to justify them, the burden is upon him to prove his justification.’ And this rule was well illustrated in St. John v. Eastern R. W., 1st Allen 574, where it was said: ‘Where plaintiff was a passenger on a railroad, and defendant by its agents assault him, if the assault is proved, the burden of justifying it rests upon the defendant as in ordinary cases.’ ”

If there is a conflict in the testimony on any material point, it is proper to give an instruction on the burden of proof. Meyer v. Frenkil, 116 Md. 411 (1911). Appellee does not dispute the law, but apparently believes that there was no material conflict in the testimony on the issue of self-defense. He argues that “the Trial Court could have properly granted a directed verdict [in his favor], either at the end of the Plaintiffs case, or the entire case.” He relies on several statements made by the reporter, Mr. Green, at the trial which tended to show that the mayor acted in self-defense. In particular, on cross-examination, Mr. Green testified that immediately before the scuffle began, “Mr. Stephens was the aggressor.” His testimony, however, clearly indicated that no matter who was the aggressor in the verbal dispute, he could not remember “how each one got their arms on the other.” Furthermore, appellant testified that Mayor Dixon delivered the first blow. Clearly, there was conflicting testimony on the issue and, accordingly, the trial judge correctly denied appellee’s motion for a directed verdict. It is equally clear that a jury instruction on the burden of proving that the appellee acted in self-defense would have been proper and from our reading of the instructions as a whole, the refusal to comply with appellant’s request for such an instruction constituted prejudicial error. Kowalewski v. Carter, supra. The trial judge properly instructed the jury that “the burden of proof is upon the plaintiff [appellant] to make out his case and to prove to your satisfaction by a preponderance of evidence that an assault was committed * * He refused, however, to advise the jury that the appellee had the burden of proving, by a preponderance of the evidence, that he acted in self-defense. Since there was a material difference in the testimony of the witnesses, identification of the party carrying the burden of proof became especially significant. The jury returned twice to ask the court for a definition of “assault.” Although it is not our function to second-guess the jury, the possibility that they were having difficulty determining who was the aggressor indicates the necessity for the instruction. We conclude that the failure to give the requested instruction compels a reversal of the judgment on the assault and battery count.

Appellant finally contends that the trial judge improperly granted the appellee’s motion for a directed verdict on the defamation count at the end of appellant’s case. In granting the motion, the trial judge stated:

“But more specifically, I think more important than anything else is that there has been no damages proven and the Court, the jury would have to speculate. No other way could they do it. As a matter of fact, this letter here somewhere, as I recollect it, I may be wrong, but indicates that he’s not interested in monetary gain and his change in jobs he’s just interested in helping people or something like that. But the jury would have to speculate on his present salary, which they don’t know, on any future salary which he might expect, which they don’t know, to the extent of his damage to his reputation how long it would last or even if it’s in effect today. All of this would be purely speculation and there is no, and I can’t find that the words are libelous per se. I think that would be a question for the jury. So that there are no damages that I can find that would be available to the jury to consider unless by pure speculation. And we can’t allow that. So I’ll grant the motion on the second count.”

In reaching this conclusion, the trial judge had before him the testimony of Alfred L. Perkins, head of the division in which Mr. Stephens worked at the National Institute of Health. Mr. Perkins testified that in June, 1973, Mr. Stephens applied for an executive training program at the N.I.H. The application was submitted prior to the altercation between Mr. Stephens and the mayor. Mr. Perkins wrote a “letter of recommendation for Mr. Stephens to indicate that he would be well qualified and suitable for the program.” He stated that Mr. Stephens also applied for a position as his assistant.

According to established procedure, a Qualifications Review Board reviews the applications and places each in one of three categories according to its quality. The Board’s determination is turned over to a recommending official, who in the present case was Mr. Perkins, to recommend one of the candidates for the position. Another official then makes the final selection. Mr. Stephens’ application was rated “highly qualified,” which placed him in the most desirable category. Subsequently, newspaper articles containing stories of the fight between the mayor and Mr. Stephens were circulated in Mr. Perkins’ office. Mr. Perkins did not recommend Mr. Stephens for the position but stated at the trial his knowledge of the fight was not a factor in his decision. Mr. Stephens was not selected for either the executive training program or the position as assistant to Mr. Perkins.

Jack S. Robbins testified that Mr. Stephens applied for a position in his office at the N.I.H. He stated that Mr. Stephens was rated as “qualified,” which is the least desirable of the three alternative categories. Mr. Robbins further stated that newspaper articles containing accounts of the altercation between Mr. Stephens and the mayor were circulated around the office. To his knowledge at least one of the individuals on the Qualifications Review Board knew of the incident. Mr. Robbins indicated that his knowledge of the fight between Mr. Stephens and the mayor was a factor in his own evaluation of Mr. Stephens which was later submitted to the review board. He could not, however, estimate the effect his knowledge of the fight had on his evaluation.

Mr. Stephens testified that in August, 1973, he was approached by “the contracting officer from the Frederick County Research Center” and subsequently applied for a position there. In his application for the position he denied responsibility for the alleged assault on the mayor. He was not selected to fill the position.

Dr. Mary Rita Miller, a professor of linguistics, testified that as a result of her professional analysis of the written statement read by the mayor to the town council, which was subsequently made available to the press,

“the general impression is that although the Mayor says he is defending Mr. Stephens that it is in fact a self-serving article to present his point of view. It is damaging to Mr. Stephens. * * * I think you would have to decide on the basis of the article that Mr. Stephens is a very unstable person and that he is arrogant, persistent, a heckler and completely looses control of himself under stress.”

She then described in technical detail the basis for her conclusion.

At the time this case was tried below and at the time it was argued before this Court, the bench and bar did not have the benefit of the views expressed by Judge Irving A. Levine for the Court of Appeals in Jacron Sales Co., Inc. v. Sindorf, 276 Md. 580, a case which substantially changes the complexion of the Maryland law of defamation as we have known it. In announcing the issue posed in Jacron Sales Co., Inc. v. Sindorf, supra, it was stated:

“We are asked here to determine the extent to which the First and Fourteenth Amendments to the Federal Constitution are applicable to actions for defamation by private individuals against defendants who are not publishers or broadcasters; alternatively, we shall decide as a matter of state law whether the law of defamation should be changed in view of recent decisions of the Supreme Court. See Gertz v. Robert Welch, Inc., 418 U. S. 323, 94 S. Ct. 2997, 41 L.Ed.2d 789 (1974).”

There followed the Court of Appeals’ construction of the Supreme Court’s holdings in New York Times Co. v. Sullivan, 376 U. S. 254 (1964); Curtis Publishing Co. v. Butts, 388 U. S. 130 (1967); and Rosenbloom v. Metromedia, 403 U. S. 29 (1971). On the basis of an appraisal of Gertz, in light of these three prior Supreme Court decisions, the Court of Appeals announced: “ * * * we conclude as a matter of state law that the Gertz holding should apply to media and non-media defendants alike, and to both libel and slander.” Asserting that “We must here decide, however, the standard of liability which should govern this case,” the Court then stated the hard core of its conclusion:

“We hold, therefore, that a standard of negligence, as set forth in Restatement (Second) of Torts § 580B (Tent. Draft No. 21, 1975), which we here adopt, must be applied in cases of purely private defamation. Section 580B states:
‘§ 580B. DEFAMATION OF PRIVATE PERSON.
ONE WHO PUBLISHES A FALSE AND DEFAMATORY COMMUNICATION CONCERNING A PRIVATE PERSON, OR CONCERNING A PUBLIC OFFICIAL OR PUBLIC FIGURE IN RELATION TO A PURELY PRIVATE MATTER NOT AFFECTING HIS CONDUCT, FITNESS OR ROLE IN HIS PUBLIC CAPACITY, IS SUBJECT TO LIABILITY, IF, BUT ONLY IF, HE
(a) KNOWS THAT THE STATEMENT IS FALSE AND THAT IT DEFAMES THE OTHER,
(b) ACTS IN RECKLESS DISREGARD OF THESE MATTERS, OR
(c) ACTS NEGLIGENTLY IN FAILING TO ASCERTAIN THEM.’
It is to be noted that under the negligence standard which we adopt here, truth is no longer an affirmative defense to be established by the defendant, but instead the burden of proving falsity rests upon the plaintiff, since, under this standard, he is already required to establish negligence with respect to such falsity.”

With respect to the quantum of proof required of a private plaintiff, the Court stated:

“We hold that proof of fault in cases of purely private defamation must meet the standard of the preponderance of the evidence. This is the quantum of proof ordinarily required in other types of actions for negligence, and is apt to be more readily understood by juries.”

From the foregoing excerpts from the Court’s opinion in Jacron, it is apparent that the parties, as well as the court in the trial below, were trying the issues in accordance with a slate of rules no longer valid and effective. In assessing the defamation issues posed in this appeal, we are governed not by the old rules but by the principles announced in Jacron which became effective during the pendency of this appeal. Firstman v. Atlantic Constr. & Supply, 28 Md. App. 285 (1975). Because both parties to the appeal are entitled to the benefit of those principles, we shall reverse the judgment entered on the directed verdict in favor of the appellee and remand the case for a new trial.

In so doing, we observe that the trial judge was of the opinion that the appellee’s motion for a directed verdict should be granted because the appellant had failed to prove damages. Such a finding should be carefully reviewed in the light of Jacron and Gertz. In the latter case, the Supreme Court said, at 349-50:

“It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We need not define ‘actual injury/ as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury.”

Judgments reversed; case remanded for a new trial in accordance with this opinion; costs to be paid by appellee.

Appendix

STATEMENTS BY MAYOR LEWIS C. DIXON Relative to the Stephen’s/Mt. Airy Conflict MT. AIRY TOWN COUNCIL MEETING OCTOBER 1, 1973

We have seen much in the news in the last few months about the disagreement between Frederick W. Stephens and the elected officials of Mount Airy and in particular the physical confrontation between myself and Mr. Stephens, following the Town Council meeting on June 18, 1973. We have reported all of these facts to the press from time-to-time but in recent weeks we have steadfastly refused to cooperate with those of the press who have sought to exploit these matters. There have been articles that have not been truthful or have been misleading. The public has been misinformed in substance and by the significance placed on these matters. The elected officials of Mt. Airy and Mr. Stephens have been placed in an unfavorable light that neither party deserves. These comments that follow are intended to place these matters in a more precise perspective and to clear the air on several matters.

Let me assure all at this time that the elected officials of Mt. Airy and its citizens do not blame Mr. Stephens for his pursuit of all that he believes is right or to gain all that he believes is due him. Mr. Stephens is not always right. He should not expect others to always agree with him. It doesn’t help his personal image to purposefully and unjustly attempt to degrade the character of others.

Mr. Stephens claims that the Town of Mount Airy has been arbitrary towards him; that the Town has not listened to him; and that the Town has failed to act on his just grievances. The town has acted as it deemed appropriate but Mr. Stephens does not recognize these decisions if he disagrees with the decisions. Let us look at the major ones.

The Town of Mt. Airy has been planning a public sewage system for nearly twenty years in my personal knowledge. The location of the treatment plant has been given extensive attention. One does not locate such important components by throwing darts at a map or by some other arbitrary approach. Locations in the Monocacy River watershed were ruled out for a number of factors including population distributions and centers of expected growth trends. Let me assure you that valid arguments could be generated but probably not sustained to have located the treatment plant in Frederick County. The location of our new treatment plant as we find it today was not a simple decision by the Town of Mount Airy and its Engineer, but rather a fully coordinated decision among several Government Agencies. It is the approved site of such agencies as the County and State Health officials, the Pure Water Administration, the Farmers Home Administration (FHA), certain offices in the “Health” side of the Health Education and Welfare Administration (HEW), elements of HEW that have been absorbed in the Environmental Protection Agency (EPA), and others, including the courts of this State. Many sites have been considered. When Mr. Stephens challenged the fair and equitable acquisition of his property, he also challeged the site as well as a host of other items, but the courts did not find justifiable cause to challenge the site selection. The site selection was not arbitrary and Mr. Stephens knows this, yet he continues to pursue the matter.

Let me spend a few brief moments on the price the Town paid Mr. Stephens for his property. Our final offer to him for his 5-acre tract on April 20, 1970 was $10,284.00. This figure included allowances for value degradation and punitive damage to contiguous property of Mr. Stephens. Some Mount Airy Citizens believed this figure was too high. The land lies in a flood-plain area and is not acceptable for development purposes. This is true for any land subject to flooding. The land is swampy. In spots it is too swampy to make good pasture. These swampy areas represent a problem now for the Town to mow. Mr. Stephens felt that his land was worth more than the Town offered him. He quoted figures as high as $52,000, but the officials of this Town would not approve the expenditure of public funds for value they believe would not be received. In the final analysis the Town found it necessary to acquire the property through its power of condemnation, a procedure through which the Court establishes the conditions affecting the transfer of the property. To my knowledge, this is the only condemnation procedure ever completed by the Town though others have been started. Possibly you haven’t looked at it this way but the Carroll County Jury disagreed with Mt. Airy in this Condemnation. In effect it determined, after hearing through its professional appraisers that $9,566.00 was a fair price, $718.00 less than the Town had offered. The courts made no other stipulations conditional to the transfer of this property. I believe that you must agree with me that for the town to do anything more than to follow the decision of the Court would be a violation of public interest; to do anything less, would be to treat Mr. Stephens unjustly. We have followed the Court decisions to the letter. Mr. Stephens knows this.

It is not fair in my opinion to Mr. Stephens, his family, or to the good people of Mt. Airy when he is encouraged by the press to make claims that he has been treated unfair and unjustly in this matter. Let me speak in his defense. The public and its officials must have empathy for any citizen whose private domain has been violated to any degree by condemnation procedures. Those officials who find it necessary to violate a private sector in the public interest may never look upon such actions with pride.

There are an assortment of complaints by Mr. Stephens relative to the construction of the new Treatment Plant at Mt. Airy. Those involved in the administration of the contract do not agree with him. It’s an honest disagreement. He has been told that these matters would be pertinent topics for consideration at the time FHA inspects the project. FHA will rule upon all such matters for each of the government agencies having an interest in the project. FHA will accept the project only when all obligations have been satisfactorily met. This Mr. Stephens knows, yet he persists in degrading this Town and its officials for not meeting his demands.

Mr. Stephens is the writer of lengthy letters to which he demands written answers. He has been given answers, most often verbally. On June 18, 1973 following a Town Council meeting, he asked me for written answers to letters that he had written. I told him that I would again give him verbal answers and do it then. He said he did not want verbal answers, but I gave him verbal answers on several of these matters — and he listened. He interrupted my conversation with persistance. Several of my responses to his provocations irritated him. He became increasingly abusive and violant. Mr. Stephens was the aggressor. He was hostile and arrogant. He was highly emotional and incoherent. He failed to respond to my request and direction to leave the Town Hall. At the beginning of the “fight” he was butting my forehead with his forehead and screaming.

I was in a defensive mood. I cannot tell you exactly what was happening in those next few moments. I am convinced that I did not loose my temper. I am almost certain that I did not throw any punches in spite of the fact that I had sore knuckles on my right hand the following morning. Actually I am not sure that Fred ever threw a punch or hit me with his closed fist. His arms were thrashing about. He clamped a violent headlock on me, bruised the cheek of my face and cut one side of my nose and it bled. This was not a typical nose bleed. It was a small cut as if by a fingernail. Most fingernails are covered in a closed fist. I do not believe the bruises on my face were the result of a blow by a closed fist. I patiently tolerated Mr. Stephens headlock waiting for other citizens to enter the office. I did not try to break his headlock as we spun around in the office. We hit the closet doors in the outer office violently and I made some attempt to hold him against these doors. I am more positive that we were never rolling on the floor as has been reported.

The morning after the incident I discussed the matter with the Chairman of the Council and later with legal counsel. My personal position was not to prosecute Mr. Stephens for his provocations unless legal counsel and the Town Council felt this was necessary to insure civil order. To this the Chairman of the Council and our attorney agreed. An air of empathy existed for Mr. Stephens. It was felt that he has been frustrated and harrassed, for the most part, as a result of his own decision not to seek legal counsel in his defense against our Condemnation Actions. It was also felt that as Town Officials we were obligated to record the fight incident in the Town Records as a very minimum action and that this would be very important in the future if court actions to insure order would become necessary. The “don’t come back until you apologize” philosophy evolved. There has been no attempt to deprive anyone of their constitutional rights, however the Town Council and this Mayor will do all in its power to insure order. The wording of the minutes of the Town Council of July 2, 1973 may not be the best and could be interpreted ambiguously, however, its purpose is to insure order in these public offices.

In October 1973, over three months after the fight incident, the derogatory dialogue in the press continues. We believe this is most unfortunate. In both the public and private interest it is desirable to close the incident.

      . Because of the statement’s length, we have attached it as an appendix to this opinion.


author: Mason, J.,

text:
    JOHN ALSTON v. STATE OF MARYLAND
    [No. 142,
    September Term, 1975.]

      Decided January 29, 1976.

    The cause was submitted on briefs to Morton, Menchine and Mason, JJ.
    Submitted by Alan J. Bloom, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Gilbert H. Robinette, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Joseph Lyons, Assistant State’s Attorney for Baltimore City, for appellee.
   Mason, J.,

delivered the opinion of the Court.

This is an appeal from a robbery conviction and subsequent ten-year sentence entered against the appellant, John Alston, in the Criminal Court of Baltimore, Judge Harry Cole presiding in a jury trial.

Two questions are raised on appeal: (1) did the trial court err in requiring the appellant to submit, at the time of trial, to a fingerprint analysis, and (2) did the trial court err in refusing to grant the appellant’s motion for a judgment of acquittal.

Mrs. Mary Buckley, the victim, was sitting in the living room of her Baltimore City home when two boys entered her home and tied her to a chair. She knew one of the boys as Tyrone Bonner, but she did not know the other individual. The boys took several items including a stereo, an electric saw, her wallet and cigarette lighter. The victim testified that one of the boys threw her bank book across the floor. She indicated the second boy who robbed her (the one who she did not know) looked like the appellant and he was the one to handle the bank book. She also testified that the appellant had never been in her home before. Another witness for the State identified the appellant as one of the boys fleeing from the victim’s house. Tyrone Bonner testified that the appellant entered the victim’s home at the time of the robbery, but he remained in the yard. A fingerprint expert indicated that the fingerprint on the plastic cover of the bank book matched the left thumb print of a known print of the appellant. At this point a dispute arose as to whether the fingerprints on the matching card were actually those of the appellant. The State requested that the expert be allowed to take the appellant’s fingerprints. Over objection, the trial court ruled that the appellant’s fingerprints could be taken during a recess. The appellant’s left thumbprint was then taken, out of the presence of the jury. Ms. Talmadge stated that the fingerprint she took from the appellant during the recess matched the known fingerprint of the appellant. The appellant denied any participation in the robbery and claimed he had been in the victim’s home on a previous occasion.

The appellant contends that being required to submit to fingerprinting during his trial, even though out of the presence of the jury, was improper as it forced him to incriminate himself. The answer to this contention is that there is no constitutional prohibition against compelling an accused to submit to fingerprinting. Musgrove v. State, 3 Md. App. 54 (1968); United States v. Rundle, 266 F. Supp. 173 (E. D. Pa. 1967), aff'd, 384 F. 2d 997 (3rd Cir. 1967), cert. denied, 393 U. S. 860, 89 S. Ct. 138 (1968).

The appellant also contends that the trial court erred in denying his motion for a judgment of acquittal at the conclusion of all the evidence. We disagree. There was ample evidence which showed directly, or supported rational inferences of facts, from which the jury could fairly be convinced beyond a reasonable doubt, of the appellant’s guilt, Cousins v. State, 18 Md. App. 552 (1973). The trial court did not err in denying the appellant’s motion for a judgment of acquittal.

Judgment affirmed.