text:
    J. D. WOMBLE v. CHARLES WOODROW MILLER
    [No. 830,
    September Term, 1974.]

      Decided April 9, 1975.

    The cause was argued before Orth, C. J., and Gilbert and Lowe, JJ.
    J. D. Womble, in proper person.

      Francis J. Ford, with whom was John F. Burke on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

J. D. Womble, appellant pro se, brought suit in the Circuit Court for Montgomery County against Charles Woodrow Miller, appellee. The action alleged that Miller had assaulted and shot Womble on the 24th day of April, 1971, but the suit was not filed until July 30, 1973. Miller, in addition to the general issue plea, interposed the defense of limitations. See then Md. Ann. Code art. 57, § l. Simultaneously, Miller moved for a summary judgment. Thereafter, Womble amended his declaration. The amendment deleted the allegation of assault and substituted in lieu thereof claims of false arrest and malicious prosecution. Issue was joined.

Miller subsequently, through his attorney, served notice of his intention to take, on oral examination, the deposition of Womble. The deposition notice was filed on November 9, 1973. The time of the deposition was designated therein as 9:30 A.M., December 21, 1973. Apparently, because of difficulty in reaching the place of the deposition, Womble did not arrive until 11:00 A.M. We glean from the record that by that time the court reporter had departed, and the deposition was not taken.

On January 8, 1974 another notice of deposition was filed. The notice provides:

“NOTICE OF TAKING DEPOSITION
Please take notice that on Friday, the 1st day of February, 1974 at 9:30 A.M., in Room 205, 27 West Jefferson Street, Rockville, Maryland, I will take the deposition of the plaintiff, J. D. Womble, upon oral examination pursuant to the Maryland Rules before a Notary Public or some other officer authorized by law to take depositions. . . .”

The deposition, filed in the record, reveals that after being sworn, Womble objected to the form of the notice. He said:

“There is a preliminary matter. The court over here has gotten rather sticky insofar as nonmembers of the Bar are concerned.
And they do not permit me to file papers of any description without citing points and authority. I am speaking of those matters which are clearly outlined in the Maryland Rules, and should be familiar to the clerks, dupties, [sic] and most assuredly, to the judges.
Now, in your Notice you see you did not cite any rule. You said pursuant to the Maryland Rules, and at this point, I would ask you to specify under which rule or rules of Maryland that I am here.
MR. FORD [Miller’s attorney]: Well, you are here under the rules of discovery, chapter 400 of the Maryland Rules of Procedure, which provide for the taking of deposition of either parties, or witnesses. Parties may be required to appear for the deposition by notice being served by regular mail.
And the record should reflect that a Notice was filed in this case setting your deposition for February 1, 1974, at 9:30. Thereafter, at your request, the deposition was changed from 9:30 to 10:30.
MR. WOMBLE: But what is the authority?
MR. FORD: Chapter 400 of the Maryland Rules of Procedure. They are the discovery rules in Maryland.
MR. WOMBLE: All right.
MR. FORD: If we can proceed now, would you state your name and address for the record?
MR. WOMBLE: I don’t think that I am quite through. I don’t know that I am ready to proceed, Mr. Ford.
MR. FORD: Could you state for the record why you are not — let me ask you this, Mr. Womble. If you have an objection to something relative to this deposition, I think it might be worthwhile, if at least we get your name and address on the record so there won’t be any misunderstanding as to —
MR. WOMBLE: Who I am and why.
I am J. D. Womble ... I think I do have an objection.
I am not a member of the Bar. I have not had the time to research the Rules under which I am brought in here, and since there was no citation, I think that I will simply stand on the necessary period of time that I must be given by that rule or rules to prepare myself for such a deposition. And, in short, I ask that you reissue, citing the authority under which you want to take this deposition, and we will reschedule it after I have had due time to get to a law library and take a look-see and find out just what you can ask me and whether or not 1 can refuse to answer.
MR. FORD: I respectfully decline to do that, Mr. Womble, and I would further ask that the record show that the original notice of Deposition in this case was filed on or about November 2, 1973, scheduling your deposition for December 21, ’73, and on that date, that is, December 21, ’73, I and Mr. Burke, and the court reporter waited in excess of an hour for an appearance.
I am informed that you actually appeared at about 11:00 that morning; the deposition was set for 9:30. And I understand that there was some difficulty with your vehicle, or traffic, I don’t recall what, but in any event, it was mutually agreed that the deposition would be rescheduled. You and I agreed by telephone to that, and I then, thereafter, on or about January 7, 1974, caused another notice to be filed scheduling your deposition for February 1,1974, which is today.
Between the time that the notice was filed and today, you and I spoke again, and you requested that the deposition be changed from 9:30 to 10:30, and we did this. It is my feeling, Mr. Womble, that we have every right under the Maryland Rules to proceed with the deposition at this time, and if you do not wish to be deposed, or if you object to being deposed, I will merely inform you I will apply to the court for the proper motion — either to dismiss or other sanction. . . . [Y]our refusal to be deposed is not supported by any adequate legal authority.
MR. WOMBLE: Well, let’s examine the rule. What does it say? And what does the local rules of the court — Montgomery County Circuit Court — say with regard to citing an authority? What does it say?
MR. FORD: I am not going to discuss the rules, Mr. Womble. . . . [A] 11 parties, whether represented by counsel or not are presumed to know the rules of the court, and it is not my function, as counsel for Mr. Miller to advise you.
MR. WOMBLE: All right. I am quite prepared to argue such a motion before the court. Let me state for the record very clearly, I am not here to refuse to be deposed. I want the Defendant under — acting under the same guidelines which the court has imposed on me through the Clerk’s Office.
MR. FORD: I am not in any position —
MR. WOMBLE: Now —
MR. FORD: Mr. Womble —
MR. WOMBLE: If I may finish?
MR. FORD: No, sir. We have a point here that has to be resolved, whether we are going to proceed with the deposition or not. If we are not, fine. I am not going to take up the time of the Reporter, or other counsel, and, indeed, your time and my time for you and I to discuss whether the Clerk’s Office has treated you in any fashion other than any other litigant. That is not the purpose of this Deposition. This deposition is to inquire of you the matter put into issue in this case. If you don’t want to proceed on that basis, fine, we will end the transcript right here, and you and I can then take the opportunity of presenting our views to the court.
This is not the time to argue how you have been treated by the Clerk’s Office.
MR. WOMBLE: You have made your position crystal clear, however, in this record you have also made a couple of statements which are not correct. To wit, you stated that we have talked on the telephone. You and I have spoken once, and that was when I stated to you that Ford was — not Ford, I beg your pardon, Miller — is not really the object that I am after.
The other conversation was with regard to the snow storm on the morning of — when was it — November, the earlier notice, and subsequent conversation with, regard to time. Those conversations were with your secretary, not with you. And let’s let the court determine whether you are right or I am right.
MR. FORD: Very well. And just —
MR. WOMBLE: Nothing personal in this.
MR. FORD: Just so the record is clear, Mr. Womble, and I again tell you this because you are not represented by counsel, but based upon your position, that you refuse to proceed per the deposition notice filed, I will apply to the court for a motion to dismiss your claim, or for other sanctions, and I want you to understand that.
MR. WOMBLE: Let the record equally show that I am not unwilling to be déposed. I simply am requesting that the authority in the Maryland Rules — let it be clearly cited which rule or rules under which you are operating, —
MR. FORD: I have already cited that.
MR. WOMBLE: — be made known to me, and give me the opportunity to go see the case law or the Annotated code and any cases — citations there so I know what I have got to say to you.
MR. FORD: Well, I already cited that we are proceeding under the discovery rule, or Maryland rules of Procedure under the State of Maryland. I don’t think it is my obligation to counsel you on the Discovery rules or, indeed, any case that might have come down from the Court of Appeals interpreting those rules.
MR. WOMBLE: I most assuredly am not asking that. I want to know — be put on formal notice, the rules under which you are operating and have the appropriate period of time to prepare myself, which most assuredly, those rules must give me that, will give me 10 days, one day, they have to give me some days.
MR. FORD: On the basis, then, of your statement, you are not prepared to proceed with the deposition at this time?
MR. WOMBLE: No.”

Miller’s attorney promptly filed against Womble a motion to dismiss or for other relief.

The case, having been removed on Womble’s motion, to the Circuit Court for Frederick County, went to hearing before Judge Samuel W. Barrick on Miller’s “Motion To Dismiss and/or Other Relief”, as well as Womble’s “Motion Ne Recipiatur.” Womble argued that the court was “without authority to impose sanction [s] until such time as deponent shall have refused to answer a question” that was “posed with the approval of the court.” Judge Barrick disagreed with Womble’s position, but he declined to dismiss the case. Instead he passed an order on May 20, 1974, which provided in pertinent part:

“ORDERED, That the Plaintiff, J. D. Womble, pay to Francis J. Ford, counsel for the Defendant, the sum of One Hundred and Thirty-Seven Dollars ($137.00); said payment to be made within thirty days of this Order, and it is further
ORDERED, That if the aforesaid payment is not made as provided herein then in such event this matter will stand Dismissed with Prejudice, and it is further,
ORDERED, That the Motion Ne Recipiatur filed by the Plaintiff be and the same hereby is denied.”

Miller, the same day, served upon Womble a new notice to take deposition. The scheduled time and date was 2:00 P.M., June 20, 1974. Womble filed a motion to rescind Judge Barrick’s order of May 20, 1974. A hearing was held before Judge Barrick on September 4, 1974. The judge refused to rescind his order of May 20, 1974, specifically reaffirmed that order, but allowed Womble thirty days from September 4, 1974 to pay the sum of $137.00 to Miller’s attorney, “otherwise the case [would] be dismissed.” Womble noted an appeal to this Court on October 2,1974.

The substance of Womble’s complaint in this Court is that the discovery rules prescribe sanctions for a failure to answer and for a failure to appear. Womble argues that he did appear, and he did not fail to answer because no question was put to him. Therefore, Womble reasons the trial court was without authority to pass its order of May 20, 1974 or its subsequent order of September 4, 1974. It is manifest that Womble seeks to walk what he perceives as the middle ground, between “failing to appear” and “failing to answer”. Womble would have us hold that one who appears for a deposition, at the designated time and place, and then refuses to be deposed, may do so without fear of a judicial sanction. Such a holding would render the rules of discovery nugatory.

Womble contends that the deposition notice of January 8, 1974 did not comply with Md. Rule 319 or 321c. Md. Rule 319 provides:

“Every motion (except a motion for new trial or judgment n.o.v.), demurrer or other preliminary matter requiring action by the court, shall contain or be. accompanied by a statement of points and citation of main authorities, which shall be served on opposing counsel, together with the demurrer or motion. Within fifteen days or such shorter or longer time as the court may order, opposing counsel shall file with the clerk a reply, stating his points and citation of authorities, and his answer, if an answer is required. A copy of the reply and of the answer, if any, shall be served on counsel for the movant.” (Emphasis supplied).

Md. Rule 321 c declares:

“A copy of a motion, together with a copy of the affidavit and each supporting paper when required, shall be served upon the party affected by such motion, or his attorney of record, pursuant to Rule 306 (Service of Pleadings and Other Papers); but this section shall not apply to a motion introduced in open court either before trial, or during the course of trial, unless otherwise ordered.” (Emphasis supplied).

Appellant misreads the above quoted rules. Each pertains to motions. A notice to take a deposition is not a motion. Ergo, neither Md. Rule 319 nor Md. Rule 321 c is applicable, and Womble’s reliance thereon is misplaced.

Md. Rule 401 authorizes, “any party to an action ... without leave of court” to take the deposition of “any person, whether a party or not, . . . for the purpose of discovery or for use as evidence.. . .” Md. Rules 403 through 415 govern the use and taking of depositions. Md. Rule 405, at issue here, mandates the requirement as to time (Md. Rule 405 a1) and content of the notice (Md. Rule 405 a2). A reading of the deposition notice, as set forth ipsissimis verbis, above, clearly demonstrates that the notice to take Womble’s deposition complied with Md. Rule 405 in all respects.

Persons upon whom a notice to take a deposition has been served are not, however, left defenseless. If the person whose deposition is to be taken can show that the deposition is being taken for the purpose of oppression or abuse, the court may, on proper application, pass a protective order. Md. Rule 406.

The Court of Appeals, obviously recognizing that the discovery rules would be relatively meaningless without a built-in enforcement provision, provided sanctions for failure to comply with a deposition notice. See Md. Rule 422. Womble asserts, however, that the sanction provisions of Md. Rule 422 are inapplicable to him under the circumstances. As he sees it, because of the particular wording of Md. Rule 422 c the judge should not have passed the order of May 20,1974. Womble bases his conclusion upon the fact that he did appear at the time and place of the scheduled deposition, and no question was posed to him. The trial court, he feels, should have, at most, directed that he submit to the deposition before it utilized sanctions. We do not share Womble’s view of the rules.

Md. Rule 422 a 2 provides:

“If a deponent fails to answer a question propounded or submitted under Rule 409 (Examination), or a corporation or other entity fails to make a designation under section a 2 (b) of Rule 405 (Designation of Person to Testify), or a party fails to answer an interrogatory submitted under Rule 417 (Discovery by Interrogatories to Party), or if a party, in response to a request for inspection submitted under Rule 419 (Discovery of Documents and Property), fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition on oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.”

Md. Rule 422 c 1 states:

“If a party or an officer, director, or managing agent of a party or a person designated under section a 2 (b) of Rule 405 (Designation of Person to Testify) to testify on behalf of a party fails to appear before the officer who is to take his deposition, after being served with a proper notice, or to serve answers or objections to interrogatories submitted under Rule 417 (Discovery by Interrogatories to Party) after proper service of the interrogatories, or to serve a written response to a request for inspection submitted under Rule 419 (Discovery of Documents and Property), after proper service of the request, the court in which the action is pending on motion may make such orders in regard to failure as are just, and among others it may take any action authorized under subsections 1, 2 and 3, of section b of this Rule.”

We think Md. Rule 422 embraces within its scope the situation that has arisen in the instant case, viz., a deponent appears, refuses to be deposed and consequently no question is put to him. The Court of Appeals in adopting Md. Rule 422, did not seek to provide therein against every conceivable contingency that could arise, but rather applied a broad rule vesting the trial court with discretion as to the rule’s enforceability. “A large measure of discretion is entrusted to trial judges in Maryland in applying sanctions for failure to comply with the rules relating to discovery.” Tydings v. Allied Painting & Dec. Co., 13 Md. App. 433, 436, 283 A. 2d 635 (1971). The trial court is authorized, under Md. Rules 422 a 4 and 5 if it finds that a deponent “fails to answer a question”, to “require the party” or deponent to pay to the moving party reasonable expenses incurred in obtaining the order.” “[R]easonable expenses” may include attorneys’ fees.

Under Md. Rule 422 c 2, the court, when a party “fails to appear”, may, on motion, after opportunity for hearing, order the same redress to the moving party as allowed by Md. Rule 422 a 2. In the case at bar, the trial court could have determined that Womble either “failed to appear”, Md. Rule 422 c 1, in that for all intent and purpose his refusal to be deposed reached the same result, or it could have decided that, although he appeared, his declination to be deposed constituted a “failure to answer”, Md. Rule 422 a 2. In either event, his refusal to be deposed constitutes a violation of Md. Rule 422 for which sanctions may be imposed.

There is nothing in the record before us disclosing how Judge Barrick determined the $137.00 figure that he ordered Womble to pay to Miller’s attorney. There is, however, a transcript of the aborted deposition of February 1, 1974. The costs of that deposition had to be paid by someone. Similarly, there is the distinct possibility that the reporter desired to be paid for his time spent waiting for Womble on December 21, 1973, and Miller’s counsel was, if the trial court agreed, entitled to a “reasonable fee.” Judge Barrick did not abuse his discretion in assessing the $137.00 figure against Womble and ordering Womble to pay that amount to Miller’s attorney.

Paraphrasing what Judge Levine said for the Court of Appeals in Broadwater v. Arch, 267 Md. 329, 336, 297 A. 2d 671 (1972), inasmuch as the sanctions allowed by Md. Rule 422 are within the sound discretion of the trial judge, Evans v. Howard, 256 Md. 155, 259 A. 2d 528 (1969), he was at liberty to place Womble under a time limit in which to pay the assessed amount to Miller’s lawyer and order Womble to submit to the deposition under penalty of the sanctions provided by the rule for non-compliance. The order of September 4, 1974 directing Womble to pay the sum of $137.00 to Miller’s attorney is affirmed.

Judgment affirmed.

Costs to be paid by appellant.

      . On August 22, 1973 the Governor signed into law what is now known as the Courts and Judicial Proceedings Article. Section 5-105 thereof specifies that an action for assault must be brought within one (1) year “from the date it accrues.” Patently, § 5-105 was carved from old Md. Ann. Code art. 57, § 1. No change was effected in the statutory period of limitations with respect to assault, battery, libel or slander. In the Eevisor’s note to § 5-105 it is stated: “ . .. [T]his section is separated from those provisions [Art. 57, § 1]. This [new section 5-105 of the Courts Art.] will make the exception easier to locate.”

      . See Courts Art. § 12-303 (c)(5).


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    RENEE BAUZIERE SAULSBURY et al. v. THE DENTON NATIONAL BANK
    [No. 289,
    September Term, 1974.]

      Decided April 10, 1975.

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

      George W. Liebman, with whom were Shale D. Stiller and Frank, Bernstein, Conaway & Goldman on the brief, for appellants.

      Frank M. Benson, Jr., and Rob Ross Hendrickson with whom was Philip E. Nuttle, Jr., on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This appeal involves the single question whether a trustee, called upon to defend its administration of the trust and itself against an effort to remove it as trustee, may recover counsel fees from the trust assets.

Irwin T. Saulsbury, Sr. died on January 5, 1949, leaving a Last Will and Testament dated August 22, 1946. Under one of the provisions of that will, a trust estate was established. The life tenants of the trust estate were the settlor’s son, Irwin T. Saulsbury, Jr., and the son’s wife, Renee Bauziere Saulsbury (one of the appellants here). The remaindermen were Jacqueline Bauziere Spencer, Gabrielle DeRochebrune Leavin, Rebecca Anne Griffith and Renee Saulsbury Arnold, the children of Irwin T. Saulsbury, Jr. and Renee Bauziere Saulsbury (and the joint appellants here with their mother). Irwin T. Saulsbury, Jr. was deceased before the commencement of the present petition. The Denton National Bank (appellee) was named as trustee under the settlor’s will and has remained as trustee during the intervening twenty-six years.

On August 22, 1972, the appellants petitioned, in the Circuit Court for Caroline County, for the removal of the Denton National Bank as trustee. The petition sought the assumption by the court of general jurisdiction over the non-judicially administered trust estate, surcharge of the trustee bank for certain alleged acts of malfeasance, and the forfeiture of trustee’s commissions. On September 15, 1972, the trustee bank demurred and answered the petition. The demurrer was overruled on November 22, 1972. Three depositions were taken and filed. On November 13, 1973, the trustee bank served interrogatories upon the appellants, which, because of supervening events, were never answered. On December 3, 1973, the appellants moved to dismiss the action without prejudice, because of the serious illness (congestive heart failure) of the surviving life tenant, the appellant Renee Bauziere Saulsbury. The trustee bank offered no opposition to the dismissal of the action without prejudice, except that it reserved to itself a claim for counsel fees incurred in the course of the litigation.

On January 21, 1974, the trustee bank filed its Petition for Allowance of Counsel Fees, to which the appellants responded on February 22, 1974. A hearing was held upon the Petition before Judge James A. Wise, in the Circuit Court for Caroline County. On April 15, 1974, Judge Wise issued an Opinion and Decree allowing the trustee the sum of $4,750 as counsel fee, to be charged against the income account of the trust estate. The reasonableness of the amount is not in dispute. Nor is there any dispute about charging the counsel fee against the income account of the trust estate rather than against the corpus. The sole question is whether the trustee is permitted to recover counsel fees generally from the trust assets in a situation such as that presented here.

We note initially that the appellants’ reliance on Empire Realty Co. v. Fleisher, 269 Md. 278, 305 A. 2d 144 (1973), is totally misplaced. That case stands for the general proposition that each side in a litigation will bear its own attorneys’ fees. When trustees, however, defend the administration of the trust, to charge the necessary counsel fees to the trust assets is not to charge those fees to an adverse party but rather to the party which, of necessity, retained the attorneys. This is true even when the adverse parties, attacking the administration of the trust, are the beneficiaries under the trust.

Maryland has long recognized the general proposition that legal costs are a necessary part of the cost of administering a trust. In Cook v. Boehl, 188 Md. 581, 589, 53 A. 2d 555 (1947), the Court of Appeals said:

“It is an unquestioned rule that when a trustee in a court of equity finds it necessary to obtain legal assistance in the management of the trust estate, the court will allow him such reasonable fees as he may be required to pay in properly taking the advice and procuring the direction of counsel.”

The same general proposition was stated in Taylor v. Denny, 118 Md. 124, 132, 84 A. 369 (1912):

“... [T]he right of a trustee to employ counsel and pay him out of the trust fund is thoroughly established, when the Court can see that it is necessary for the proper administration of the trust for the trustee to have legal advice or the aid of an attorney.”

And cf. Knapp v. Knapp, 151 Md. 126, 134 A. 24 (1926). See also Sollers v. Mercantile-Safe Deposit and Trust Company, 262 Md. 606, 611, 278 A. 2d 581 (1971).

It is the position of the appellants, however, that where the defendant-trustee is not directly preserving the assets of the trust but is rather fighting a legal battle to preserve his own status as trustee, he is acting not on behalf of the trust but on behalf of himself. Notwithstanding a certain surface logic in the proposition, the authorities are clear that a successful defense by a trustee against an effort to remove him as trustee is a defense on behalf of the trust estate itself. Bogert, Trusts and Trustees (2d Edition, 1960) states at § 525:

“If the attempt to remove the trustee fails, it is proper to order payment of costs out of the trust estate. It may happen, however, that the suit appears malicious and some of the beneficiaries have taken no active part in bringing it. To charge costs to the trust estate under these circumstances would result in an inequitable distribution of the consequences of ill-advised action. In such a case, therefore, the petitioners may be compelled to pay the costs personally.”

Bogert goes on at § 809:

“The expenses of the trustee in a successful defense of a proceeding to remove him have been charged to trust capital, but if he is removed he must pay his own expenses. And so, too, if a trustee is successful in defending a suit to surcharge him for breach of trust, the court may charge his counsel fees to the trust capital.”

To a similar effect is 3 Scott on Trusts (3rd Edition, 1967) at § 188.4:

“Where the beneficiaries bring a proceeding for the removal of the trustee, the trustee can properly charge the estate with the expense of defending the proceeding.”

In the present case, moreover, the petition of the appellants was not simply to remove the Denton Bank as sole trustee but to subject that trustee to a surcharge. Scott, loc. cit., is also clear in this regard:

“So also the trustee can properly pay out of the trust estate expenses of litigation incurred in a successful attempt to prevent the beneficiaries from subjecting the trustee to a surcharge.”

2 Perry, A Treatise on the Law of Trusts and Trustees (7th Edition, 1929), makes clear the reason for the above rule at § 894, pp. 1515-16:

“The reason involved in the rule is this: trustees have no beneficial interest in the trust property. They hold it for the accommodation and benefit of others. If they perform their duties faithfully, and are guilty of no unjust, improper, or oppressive conduct, they ought not in justice and good conscience to be put to any expense out of their own moneys. If, therefore, they are brought before the court without blame on their part, they should be reimbursed all the expenses that they incur, and allowed their costs as between solicitor and client.”

The classic judicial statement of this principle was by Cardozo in 1918 in the case of Jessup v. Smith, 223 N. Y. 203, 119 N. E. 403. One of the trustees under the will of Samuel J. Tilden successfully defended himself against an effort to have him removed as trustee. In holding that he was, therefore, entitled to the payment of counsel fees out of the trust assets, Judge Cardozo reasoned, at 119 N. E. 404:

“The question remains whether the services were beneficial in the preservation of the trust. We have no doubt that they were. Mr. Smith had been named in the will as a trustee. He owed a duty to the estate to stand his ground against unjust attack. He resisted an attempt to wrest the administration of the trust from one selected by the testator and to place it in strange hands.”

In 1959 in Weidlich v. Comley, 267 F. 2d 133, Judge Learned Hand, for the Second Circuit, applied the rule of Jessup v. Smith, holding at 134:

“. .. [T]he plaintiffs first complaint is the allowance to the defendant out of the trust assets of his expenses in defending himself in the action. The argument is that these expenses were incurred in the defendant’s individual interest, and may not be charged against the trust. That completely misses the true situation: a trustee was appointed to administer the assets; the settlor selected him to do so, and whatever interferes with his discharge of his duty pro tanto defeats the settlor’s purpose. When the trustee’s administration of the assets is unjustifiedly assailed it is a part of his duty to defend himself, for in so doing he is realizing the settlor’s purpose. To compel him to bear the expense of an unsuccessful attack would be to diminish the compensation to which he is entitled and which was a part of the inducement to his acceptance of the burden of his duties. This has been uniformly the ruling, so far as we have found. Jessup v. Smith, 223 N.Y. 203, 207, 119 N.E. 403; Matter of Bishop’s Will, 277 App. Div. 108, 98 N.Y.S.2d 69; 301 N.Y. 498, 95 N.E.2d 817; Gordon v. Guernsey, 316 Mass. 106, 55 N.E.2d 27; Scott on Trusts § 188.4.”

And see Willson v. Whitehead, 181 Va. 960, 27 S.E.2d 213 (1943); Monroe v. Winn, 19 Wash. 2d 462, 142 P. 2d 1022 (1943); Kerner v. Peterson, 368 Ill. 59, 12 N.E.2d 884 (1937); In re Freeman’s Trust, 247 Minn. 50, 75 N.W.2d 906 (1956); Powell v. Cocowitch, 94 So. 2d 589 (Fla., 1957); In re Lair’s Estate, 52 Cal.App.2d 222, 126 P. 2d 133 (1942); In re Coulter’s Estate, 379 Pa. 209, 108 A. 2d 681 (1954); Ingalls v. Hare, 266 Ala. 221, 96 So. 2d 266 (1957). Contra: Whiting v. Bryant, 105 Ohio App. 141, 144 N.E.2d 240 (1957); Franz v. Buder, 82 F. Supp. 379 (E.D. Mo. 1932).

The appellants’ effort to erode the principle of Jessup v. Smith on the authority of In re Estricher’s Estate, 202 Misc. 431, 111 N.Y.S.2d 295 (1952) is unavailing. The opinion was handed down at the nisi prius level, in the Surrogate’s Court of New York County. Its affirmance at the Appellate Division level was simply by memorandum, 281 App. Div. 828, 118 N.Y.S.2d 922, and leave to appeal was denied by the Court of Appeals of New York, 305 N. Y. 930, 112 N.E.2d 287 (1953). The literal holding, moreover, cannot help the appellants, since that holding was that the surrogate is vested with discretion in the matter of awarding counsel fees and that he does not abuse that discretion when he withholds from a defending trustee the payment of counsel fees from the trust assets. It does not stand for the converse proposition (necessary to the appellants here) that the surrogate would necessarily have abused his discretion had he awarded counsel fees from the trust assets to the defending trustee. The factual situation in the Estricher case, furthermore, makes it clearly distinguishable from the one at bar. There were findings of fact by the surrogate in that case that the trustee had been “remiss in the performance of certain of its trust duties and the court does not condone its acts.” In the instant case, by way of contrast, there were no findings of fact on the merits of the management of the trust or the conduct of the trustee. No testimony was taken on this question and no exhibits were offered in evidence. The only thing before Judge Wise was the motion of the appellants to dismiss the petition and the claim of the appellee for counsel fees.

Nor may the appellants take any comfort in Schindel v. Brenauer, 136 N.J.Eq. 94, 40 A. 2d 631 (1945). The primary holding of the Court of Errors and Appeals of New Jersey, in denying an award of counsel fees from the trust assets, was that the litigation there involved a contested election to a trusteeship and not the administration of the trust by one duly qualified.

“Retention of office is not in every instance an exoneration from blame ... Fiduciaries have been permitted to recover costs and allowances for legal services in successfully opposing removal when such opposition was beneficial to the estate ... This court did not consider the charges against the petitioning trustee to be unfounded nor the proceeding for its removal unjustified. The court denied the application to revoke the letters of trusteeship only because it deemed removal not to be to the best advantage of the estate despite the justified criticism of the trustee’s conduct. The denial of the application for removal was neither an exoneration of the trustee nor an implicit finding that the opposition to the application was in the interest of the estate.”

The appellants seek to distinguish the broad principle represented by Jessup v. Smith by pointing out that the trustee here did not successfully defend the suit upon the merits. It could not, of course, because the suit was aborted by the appellants themselves. Their effort to shift the burden to the defendant-trustee to establish that its defense would have been bona fide had the-issue reached a trial upon the merits, after they themselves aborted the trial, is an intolerable instance of wishing “to have their cake and eat it too.” In rejecting such a notion, we find persuasive First National Bank of Mishawaka v. Kamm, 283 N.E.2d 563 (Ind. 1972). In that case, no trial was had upon the merits because of the successful Plea in Abatement of the defendant attorneys. The Indiana Court of Appeals held that where the trustee, whose removal was sought, prevails, even short of an adjudication on the merits, the burden does not shift to him or to his attorneys to litigate in a vacuum and to establish that he would have prevailed on the merits, had the merits of the case ever been reached. The court said, at 565:

“The services were rendered in defense of an action against one of the cotrustees for failure to account, for comingling of trust funds and for refusing beneficiaries access to trust records. There was never an adjudication on the merits of the controversy concerning the alleged misconduct of the cotrustee. The question then becomes whether the alleged misconduct can be raised as a defense to the petition for attorney fees. We believe not and now so hold.
The conduct of the cotrustee is not an issue in this case. The beneficiaries had the opportunity to litigate the alleged misconduct of the cotrustee and they failed in their initial attempt. They did not ’-enew the action against the original defendants. Appellant, by attempting to raise the conduct of the cotrustee as a defense, is endeavoring to relitigate the old lawsuit anew and to thereby place upon Appellees, not only the burden of justifying their expenses, but also the burden of showing that if the prior lawsuit had been heard on the merits, the cotrustee would have been exonerated. It is a burden Appellees need not and should not have to assume.
Appellant relies upon the clearly established rule of law to the effect that a trustee who has been adjudged guilty of misconduct cannot charge the expenses of the defense of the suit to the trust fund. . . . Where the trustee has been found guilty of personal misconduct, the costs of the suit become personal to him. But the above rule presupposes that there has been a final adjudication on the merits as to the charges brought against the trustee. Such is not the case here.
We hold that unless there has been a final determination as to the alleged misconduct of the cotrustee, such alleged misconduct cannot be interposed as a defense to a petition for attorney fees for the services rendered in defending the trustee.”

Order of the Circuit Court for Caroline County affirmed; costs to be paid by appellants.

      . This general rule is subject to an exception, not here pertinent, spelled out in Maryland Rule 604b, which provides:
      “In an action or part of an action, if the court finds that any proceeding was had (1) in bad faith, (2) without substantial justification, or (3) for purposes of delay the court shall require the moving party to pay to the adverse party the amount of the costs thereof and the reasonable expenses incurred by the adverse party in opposing such proceeding, including reasonable attorneys’ fees.”

      . The court said, in pertinent part, at 111 N.Y.S.2d 298-299:

      . The court said, at 40 A. 2d 633:
      “However, it is evident that this case differs from one where an attempt is made to remove a trustee from his position for alleged misconduct of the estate. In this suit, there was no charge of failure to properly perform the duties of trustee, but that fraud was committed in his selection. It was a personal controversy between two candidates for the position. . . . Here the challenge is of the right to administer by reason of fraud in election, so that it is not a matter involving the alleged improper administration of the trust, as in all cited cases.”


author: Lowe, J.,

text:
    SAMUEL A. GREEN, JR. v. STATE OF MARYLAND
    [No. 791,
    September Term, 1974.]

      Decided May 1, 1975.

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

      James R. White for appellant.

      Gary Melick, Assistant Attorney General, with whom were Francis B. Burch, Attorney General. Clarence W. Sharp, Assistant Attorney General, Chief of Criminal Division, and Peter D. Ward, Assistant Attorney General, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Prologue

The continued existence of an elected official as an elected official depends not only upon his ability to “resist the temptations that daily beset him,” but also upon his ability to make it apparent that he has resisted them. Few, if any, elected officials have survived a long political life without some impugning of their motives. This, the public figure must be content to bear, or alternatively, his defense can be to open himself to the "rigid scrutiny-of those who hold him suspect. Indeed the temper nf the times compels one to endure 'even the proddings -of .the curious. For a public official to do less would, justify the‘suspicions of his critics.

The “era of openness” seems a recent manifestation of the public will. It =is not surprising that prosecution for obstruction of justice — the coverup crime — has become prevalent, if not fashionable, in these serious seventies. It is a crime that breeds on fear, and as such finds fertile fields among those dependent upon the public weal. It is central among the crimes with which Samuel A. Green, Jr., State's Attorney for Baltimore County, was charged in a sixteen count indictment and convicted by a jury in the Circuit Court for Baltimore County.

The indictment arose peripherally from an investigation of “allegations of corruption of public officials in connection with the'arrest, prosecution and escape of one John Edward [Liddie] Jones.” The Attorney General’s office conducted the investigation by authority of a;gub.ernatorial directive dated November 13, 1972 issued in accordance with Article V, § 3, of the Maryland Constitution.

The incident which appellant was attempting to obscure arose from the dismissal of gambling charges erroneously placed against the owner of an ..automobile service station, one Kneass Harrington. Properly indignant that his wrongful arrest would remain a matter of public record-open to anyone’s perusal (see Md. Code, Art. 76A, supra), Mr. Harrington sought some means of expungement. The Court of Appeals had not yet held that such authority lay in .the trial courts, John Doe v. Commdr., Wheaton Pol. Dept., 273 Md. 262, and Mr. Harrington’s-pleas to at least two attorneys fell upon deaf ears. They knew of no procedure to procure expungement even of an arrest record. Mr. Harrington was, however, later put in contact with an investigator for, ;and confidant of, Mr. Green, namely Louis W. Irvin, whom Mir.. Harrington had known previously. At Mr. Irvin’s suggestion, Mr. Harrington wrote Mr. Green requesting the expungement of his arrest record. When Mr. Irvin again contacted Mr. Harrington, it was to collect the $750 for “legal” services involving the expungement. The evidence revealed that at Mr. Green’s suggestion the petition to expunge was, prepared and effectuated by Deputy State’s Attorney Stuart Hirsch, who after preparation obtained' an accommodation signature from Stephen Miles, a friend and attorney outside the State’s Attorney’s office.

Some apprehension seems to. have arisen, in the State’s Attorney’s office when Mr. Harrington became aware and indignant that the FBI still maintained a record of his arrest; however, the real anxiety came with the Governor’s order for an investigation of the Liddie Jones case, in the vortex of which was Deputy State’s Attorney Hirsch. Although the initial Jones' investigation was not focused on Mr. Green, the Governor’s directive to the Attorney General contained the unsettling, closing paragraph:

“In the event your investigation of the above discloses acts or conduct in other areas which warrant further investigation,, grand jury action or prosecution,, you are hereby directed to. pursue the same, and you and' the members' of your staff designated by you shall have all of the same powers with respect thereto that have been conferred by me as to the above..”

That mandate, and the. discontented rumblings of Mr. Harrington, supplemented perhaps by questionable authority to expunge at all (prior to John Doe, supra), awakened Mr. Green to the precariousness of his own position, inevitably to be subjected to the harsh light of investigation. Through Mr. Hirsch, he first attempted to have Stephen Miles create a Harrington file, nunc pro tunc. Failing; this he had his deputy solicit his. (Hirsch’s) father, also a lawyer, to< provide: an alternative cover.

What Mr. Green did not know, but came to suspect, was that Mr. Hirsch was cooperating completely with the investigators. He had become disenchanted with Mr. Green, at one time his idol, and admitted having developed a deep-seated resentment toward him. Beyond that, although offered no immunity, his cooperation would not go unnoticed in regard to his own investigation.

As rumors increased, so too did Mr. Green’s trepidation. The $750.00 cash payment by Mr. Harrington to Mr. Irvin was returned in like kind with an admission by Mr. Irvin that Mr. Harrington owed Mr. Green an expression of gratitude for his generosity. Unknown to the participants, this act was performed under police surveillance.

When Mr. Hirsch’s investigatory involvement became more apparent, his denials of police participation to Messrs. Green and Irvin were met with threats of bodily harm and even death upon the confirmation of those suspicions. The threats were not made good either when Louis Irvin was indicted, tried and convicted, see Irvin v. State, 23 Md. App. 457, or when Mr. Green was indicted and tried in the Circuit Court for Baltimore County. He was convicted by a jury of misconduct in office, obstruction of justice, conspiracy and attempted subornation of perjury.

The crux of Mr. Green’s crime was his effort to hide his office’s involvement in the Harrington arrest record expungement at a time when investigatory bodies were scrutinizing the activities of that office under a broad gubernatorial mandate. It was not necessary to prove that Mr. Green had profited by the expungement, nor even that an attempt to obtain expungement was or would have been a crime (see John Doe, supra). By his wrongful attempts to mutate information sought by and for the grand jury, the crimes were complete:

“The nature of the proceedings in which the witness [in this case, Mr. Hirsch] is to testify is immaterial on the question of the criminal character of acts designed to influence the testimony of a witness. . . .” F. Wharton, Criminal Law and Procedure (Anderson ed.) § 1281 at 629.

Had the information sought been the Sermon on the Mount, its deliberate mutation would nonetheless have been a crime.

The Appeal

Appellant raises ten questions alleging error. The answers for the most part are of a factual rather than legal nature which became obvious after a review of the four thousand page transcript. Explaining the answers in context accounts for the length to which we must go in responding. For that reason related questions are treated together in an effort to curb our own verbosity.

I.

“Did the Court err in denying Appellant’s Motion to Compel Election as to Counts of the Indictment and permitting the jury to hear both the conspiracy concept charges and evidence of alleged substantive offenses simultaneously?”

After reciting Md. Rule 735 to show that the court below could have ordered “an election or separate trials of counts,” appellant then quotes Wanzer v. State, 202 Md. 601 to indicate that the court should have, subject only to the “limitation . . . that Courts will guard against injustice.” Recognizing the improbability of success in appellate efforts to prove abuse of judicial discretion, appellant takes the more rigid view that he has a right to a trial of the substantive crimes, separate from a charge of conspiracy to commit those crimes. His argument seems to rely almost entirely upon a single sentence quoted from Wilson, Valentine and Nutter v. State, 8 Md. App. 653, 666, cert. denied, 258 Md. 731:

“If the State chooses to prosecute an individual conspirator for a substantive crime, he is entitled to a separate trial on that substantive crime on demand, even though the substantive crime constitutes an overt act tending to establish the conspiracy.”

Appellant is not the first to utilize that language to assert such right, Mason, Taylor & Taylor v. State, 18 Md. App. 130, cert. denied, 269 Md. 763, 767; 416 U. S. 907. There we said, as here we repeat:

“Unfortunately for the appellant [s’] position, however, the quotation is lifted out of context.”

In Valentine the Court was facing joinder of defendants, as well as joinder of multiple counts and indictments. Some were related, some were not, although all of the defendants had been charged with a single conspiracy. In context, it is clear that the Court intended that the separate trial to which a conspirator had a right for substantive crimes, was restricted to those substantive crimes which the defendant had not conspired to commit. It would be foolhardy and purposeless to require as of right two trials — one for a crime committed and one for a conspiracy to commit the same crime.

The prejudice appellant infers from joinder is based upon his belief that, had a severance been granted, he could have precluded the admission of a statement made to police officers by Louis Irvin since that statement, he contends, would not have been admissible except as “acts occurring during a continuing conspiracy.” Greenwald v. State, 221 Md. 245, 250. We note, however, that Greenwald at 254 itself refutes the very foundation of his prejudice argument:

“It has been held that even though the indictment charges a substantive crime on a specified date but the proof shows that there was, in fact, a conspiracy to commit the substantive crime, the acts and declarations of one conspirator are admissible against the other, and the rules of evidence are the same as where conspiracy is expressly charged. 22 C. J. S. Criminal Law, Sec. 756b. The court so held in People v. Novotny (Ill.), 20 N.E.2d 34, 35. There the indictment charged Novotny with maliciously damaging a building on September 8, 1937. The court said: ‘When, however, the crime charged has been committed in pursuance of a conspiracy, even though the indictment does not charge conspiracy, it is competent to show that the erime committed was the result of a conspiracy and every act of the conspirators is admissible, even though the commission of other crimes is disclosed.’ See also Commonwealth v. Hancock (Super. Ct. Pa.), 112 A. 2d 407, 410, where the charge was of a substantive crime and the court held that since the defendants had been shown to have had a common intent, plan and design, the declarations of Miller, one conspirator, were admissible against the appellee Hancock. The opinion relied on Commonwealth v. Sheaffer (Super. Ct. Pa.), 23 A. 2d 215, 217, in which various authorities to the same effect are set forth at some length. See also Coplin v. United States, (9th Cir.), 88 F. 2d 652, cert. den., 301 U. S. 703, 81 L. Ed. 1357; State v. Tennyson (Minn.), 2 N.W.2d 833, 837.
This Court has indicated agreement with the other Courts to which we have referred.”
II.
“Did the Court err in admitting a typewritten copy of an alleged ‘corrected’ statement of Louis Irvin, an alleged co-conspirator, and did not require instead the playing of a tape recorded version of said statement, which was the ‘best evidence’ in the case?”

The typewritten statement of the co-conspirator, Louis Irvin, which was originally taken on a tape recording by the State Police, was introduced over appellant’s objection. In McGuire v. State, 200 Md. 601, 606, the Court of Appeals assumed that a recording tape would have been the best evidence of certain conversations; thus, reasons appellant, he was entitled to the best. Beyond that, he points to prejudice in the jury’s inability to weigh voice inflection and intonation in determining the meaning of the statement. It is not contended upon this appeal that the transcripts are inaccurate or that the conversations which were recorded did not take place. See also Raimondi v. State, 265 Md. 229, 230, cert. denied, 409 U. S. 948.

In Forrester v. State, 224 Md. 337, tapes were acknowledged as the best evidence of a conversation and as such were permitted introduction over appellant’s objection. The Court succinctly construed the rule to be applied:

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

Such foundation was laid and sufficient reasoning was produced for the substitution of the original tape. The State showed:

1. The transcription had been carefully prepared, reviewed and corrected by a State Police Lieutenant and proffered the transcript as “a more understandable form than the tape would be. The tape is kind of fast in parts and slow at parts.”
2. The original tape was evidence in the Irvin case, supra, then on appeal to this Court and even now pending on certiorari before the Court of Appeals. Although it could be removed by court order little purpose would be served by so doing.
3. A copy of that tape had been made and given to appellant. Recording equipment was available even at trial for his use and he was free to use it for checking accuracy, cross-examination, introduction on his own behalf or any other purpose which was the basis of his original objection.

We think this meets the test of Forrester although the practice followed in Raimondi of introducing both tape and transcripts for clarity and comparison is certainly preferable. The dilemma here, however, was whether to have the original tape remain with the Irvin case on appeal or introduce it at Mr. Green’s trial. Even a copy of the original tape would have been subject to a “best evidence” objection. Finally, although prejudice was speculatively alleged regarding voice intonations, there was no evidence thereof produced. If it were within appellant’s awareness he has not brought it within ours. Had it been so at trial he was free to overcome it with the duplicate tape given him by the State. No reason has been shown why Mr. Irvin’s appeal should have been jeopardized by removing evidence more crucial in its original state there than here.

We see no prejudice, we find no error.

III.
“Did the Court err in permitting the State to exploit the subject of Appellant’s alleged ‘sexual misconduct’ despite a pretrial limiting order requested by the State that such testimony would not be admissible?
IV.
Did the: Gowt err in denying Appellant’» Motion that the State be precluded from cross examining him (M ‘marital infidelity’ and ‘sexual misconduct’ in the event Appellant chose to take the stand in his own defense and testify fully concerning the allegations set forth in the Indictment?
V.
Was the Appellant afforded a full and complete opportunity to exercise his Fifth Amendment rights in making an intelligent election as to whether to testify in his own defense in light of the Court’s ruling that he could be cross examined on collateral, highly prejudicial matters of alleged ‘sexual misconduct’?
VI.
Did the Trial Judge err in denying Appellant’s Motion for Mistrial after all evidence was in and State announced its intention to argue ‘sexual misconduct’ as a possible motive for the commission of the crime, after the State had assured the Court for weeks that its only theory of admissibility of said testimony was the bolstering of the credibility of their main witness, Stuart Hirsch?
VII.
Did the Trial Judge err in ruling that the State could produce rebuttal testimony on the subject of alleged ‘sexual misconduct’ even though the Appellant produced no testimony which would have permitted such rebuttal?”

That the emphasis given appellant’s sexual conduct was given by appellant himself is not only apparent from his brief, half of which is concerned therewith, but also from our careful reading of the twenty-two volumes of testimony. With but little exception, its relevance seems highly questionable in an obstruction of justice case. However, because appellant became inordinately preoccupied with the subject, a chain of relevancy for subsequent testimony was knitted link by slender link. All of the sexual conduct evidence was expressly and continually eschewed by the trial judge, but finally permitted at appellant’s instance.

Anticipating the emergence of that subject matter by reason of pretrial publicity, Judge Ross carefully advised counsel even before the jury was empanelled, to instruct their witnesses not to volunteer any information covering marital infidelity except in response to a direct and specific question. He admonished counsel themselves that “you may not mention marital infidelity in your opening statement or ask any questions concerning marital infidelity until you have persuaded me that there is some basis in fact for use of that to show or to impeach the witness at the trial other than on the ground that such misconduct is discrediting.”

On the morning of the fifth day of the month long trial, Stuart Hirsch, the State’s key witness, was testifying to a visit in company with appellant to the office of a State Senator. Appellant had accused Mr. Hirsch of cooperating with the investigators and wanted to confront his denials with appellant’s source of information. The Senator had presumably heard accusations made by Hirsch to the State Police. Hirsch testified that appellant drove him to Annapolis to face his accuser:

“Mr. Green drove. It was his car. I asked him if we were going to see Senator Pine. I said, ‘What is in the statement that I was supposed to have given?’ He answered that I paid two thousand dollars for my deputy job, plus agreed to allow Mr. Green to use my apartment for sexual purposes. . . .”

No objection was made to this testimony by appellant. After a brief dialogue between the witness and State’s Attorney, the State then pursued the question to ascertain whether the accusation attributed to Hirsch was true, to which appellant entered his first objection and, upon reflection, withdrew even that.

“Q. Was the statement attributed to you by Senator Pine, in fact, true, sir?
MR. WHITE: Your Honor, I object. Well that’s all right, I withdraw the objection. Go ahead.
A. That was not completely accurate, no, sir. . . . I paid Mr. Green one thousand dollars and agreed to let him use my apartment.”

If it was not then apparent that appellant made a tactical decision to seize upon the answer as opening a whole new vista to him, it became obvious as the trial progressed. Not only did appellant decline any corrective action in the nature of a motion to strike or an offered clarifying instruction when he later broached the subject out of the jury’s hearing, but he pressed for and finally received the right to cross-examine Hirsch extensively upon all aspects of his out-of-court accusations of Mr. Green’s sexual predelictions, peccadilloes, peculiarities and even “perversions.” Like the King of Epirus, however, appellant had gained a victory at too great a loss.

The principle of admissibility argued was that Mr. Hirsch’s credibility was crucial and subject to attack. Appellant attempted to discredit Mr. Hirsch by exposing what he viewed as inherently unbelievable out-of-court statements publicly and privately made regarding this phase of Mr. Green’s life. The questions he asked were exhaustively detailed and explored every episode. He hoped to reveal the viciousness of Mr. Hirsch’s attacks by demonstrating the absurdity of the extremes to which he would go. His technique was a form of impeachment by showing bias or, as Professor Wigmore phrases it, by “indicating [the witness’s] disposition or habit or general scheme to make false charges or claim,s.” 3 Wigmore, Evidence (3d ed.) § 963 at 520.

The cross-examination regarded accusations by Hirsch which ran the sexual gamut from long affairs to short affairs, local and interstate. It included Hirsch’s accusations of appellant’s predelictions toward peculiar sexual activities which deviated not only from the conventional, but also from the peculiar, entailing the use of condiments and dessert toppings, if Hirsch was to be believed.

Suffice to say the attack on Hirsch’s credibility was not necessarily for naught. Ridicule can be devastating and the more so when the ridiculous is admitted.

The State thereupon faced substantial diminution of the credibility of its sole witness, with whom its case would stand or fall. The jury could well have seen Mr. Hirsch as an emotionally unstable man (he had admitted himself to a mental hospital) heaping expressions of vituperation on an employer he now resented, and concluded that his sexual accusations of appellant, a family man, were preposterous. The State had but one course to follow if it hoped to prevail and that was to bolster the faltering witness. It elected to do so by proving the probability of those seemingly preposterous sexual exploits.

Mr. Hirsch had testified on cross-examination that he had accused Mr. Green of giving a paramour a color T.V., only to repossess and sell it to another deputy at a profit, after a parting of the ways. He admitted to repeating an obscenely rhymed verse setting forth what was expected of secretarial applicants, which verse and office standards he attributed to Mr. Green. In addition to the use of his own apartment by Mr. Green for sexual cavorting, he admitted that he spoke of other clandestine rendezvous such as rooms at vacation resorts during conventions, retained by others but used by Mr. Green.

In the long journey toward rehabilitation the State traveled three paths. First, on redirect examination the State asked Mr. Hirsch to name names, times and places for the events described. The State then established the sources upon which Mr. Hirsch relied for the out-of-court stories he admitted having told. These sources included braggadocio by Mr. Green, personal observations of criminatory circumstances, and conversations with Mr. Green’s participants.

The second step toward instituting respectability for Mr. Hirsch was the production of corroborative witnesses during rebuttal. The State called the man whom Hirsch had named as retaining a room at Ocean City used by appellant and a female friend. Then the State produced the female friend. Subsequently, it produced the color T.V. merchandiser and an office secretary and recipient of the color T.V., to substantiate the story of appellant’s aborted affaire de coeur.

The third recuperative effort was the State’s reply to appellant’s motion in limine, which asked that the State be precluded from cross-examining appellant regarding sexual misconduct, in the event he chose to take the stand. The short answer to appellant’s assertion that the court’s denial was error (Question IV) lay in the denial itself and its accompanying explanation. Although the court lamented the insertion of sex from the beginning, it decided that since appellant had used it to attack Mr. Hirsch’s credibility “it has become an issue in the case through the history we have discussed, and it is now relevant in respect to Hirsch’s credibility, ... to the extent that it has been opened in that area. . . .” He continued by explaining “that the only area [the State] could go into on that, on the sex basis ... is where it relates to Hirsch’s testimony.”

In declining to grant the motion in limine absolutely, the court stated that it would have to rule on the propriety of each question asked. That ruling clearly was not error. Because appellant belatedly weighed the potential consequences when he declined to testify, he can hardly cry foul, having himself charted the course he was later compelled to pursue.

During this unlikely transformation of the subject of sexual activities from one of questionable relevance to an issue of Hirsch’s credibility, a single, controlling observation emerges. Having fashioned that subject into a defensive sword of indignation, appellant may not seek sanctuary when the State converts it into an offensive weapon.

Nor, having once so insistently demanded that the subject be explored, can appellant now object to the State’s suggestion in closing argument that an additional motive underlying appellant’s attempt to obstruct the investigation was a desire to hide that which he had himself now so vividly exposed. Anticipating that theory by the State in closing argument, appellant moved for a mistrial, presumably because the State acknowledged its intention to so comment. At the time of the motion, however, there was nothing before the judge upon which he could rule. With his usual abundance of caution Judge Ross expressly permitted appellant to reopen his case if he so desired. He declined the opportunity.

We note further that this use of sexual misconduct as a motivation for cover-up was not the surprise at the end of the case appellant claimed it to be. Even before the jury was empanelled, the court admonished the litigants — and especially appellant — to steer clear of sexual misconduct during the trial. He used motivation as an example saying

“Now, I have picked motivation because that seemed to be the most likely use of it. . . .”

Appellant’s position is as anomalous on the “surprise” issue as it is on the preceding arguments.

We have thus responded to appellant adversely in all his claims of error regarding the use of sexual misconduct during trial. It would serve no purpose to restate the questions and respond seriatim when our determination is so clear. We move on then to Question VIII.

VIII.
“Did the Court err in denying Appellant’s Motion for Judgment of Acquittal and permitting the jury to deliberate on all sixteen counts of the Indictment despite the State’s admission that the charges were factually the same and were basically set forth under different theories?”

We are somewhat nonplussed by the issue which seems to fuse a question of sufficiency of the evidence with an assertion that the State was compelled to elect. We will touch upon both to assure ourselves we have not misunderstood appellant.

Regarding the sufficiency of the evidence, suffice to say we have carefully read all of the transcribed testimony, perused the evidence, the record and the voluminous investigatory matter submitted in camera as possibly containing exculpatory material under Brady v. Maryland, 373 U. S. 83 and Giles v. Maryland, 386 U. S. 66. The admissible evidence we reviewed was ample in law to sustain a conviction of misconduct in office, obstruction of justice, attempted subornation of perjury and conspiracy. The State proved that appellant conspired with the prosecuting witness and another to mislead investigators, obscure facts and change testimony.

If not sufficiency, appellant apparently argues his motion for judgment of acquittal should have been granted because the State was required to elect counts, relying on Md. Rule 735, which provides that the court “ . . . may order an election or separate trials of counts ... or provide such other relief justice requires.” We have treated the question of separate trials of counts in appellant’s first question. We now respond to the court’s authority to order an election.

In Baumgartner v. State, 21 Md. App. 251, 253 the appellant contended that it is never proper to permit the joinder of offenses under Md. Rule 716 a “unless all of the offenses involve substantially the same facts, form part of the same transaction, and occur during a brief space of time.” Appellant here approaches the joinder question inversely, arguing that because the offenses joined in the indictment involved the same facts, formed a part of the same transaction and occurred within the same time span, the State should have been compelled to elect those upon which it chose to rely. The indictment contained sixteen counts, some charging the same crime in different ways, e.g., statutory and common law, all based upon the same transaction.

Appellant contends that the court may require the State to elect and it “should be done at the instance of the accused and that the trial judge has the duty to see that the charges are actually distinct,” citing Toomer v. State, 112 Md. 285. We do not read Toomer thus. Indeed we read it precisely oppositely.

After recognizing that

“It is the common and approved practice in this State to insert in the indictment several counts, charging the offense in different ways, and to charge -in one indictment, in separate counts, two or more felonies growing out of the same transaction,”

the Court of Appeals said:

“[W]h,ere there are several counts in the indictment, charging separate and distinct offenses, the Court may, in its discretion, require the prosecution to elect upon which count he will proceed, or quash the indictment. That should not be done, however, at the instance of the accused, unless the Court ean see that ‘the charges are actually distinct and may confound the prisoner, or distract the attention of the jury.’ But the indictment will not be quashed, where it is obvious on its face, ‘that the several counts related to the same transaction, and that the variation of the form in which the offense is charged in the different counts is done with a view to meet the evidence.’ ” id. at 289-290. [Emphasis added].

The case relied upon by appellant is thus dispositive of his own issue. His further reliance upon Simmons v. State, 165 Md. 155 is totally misplaced unless he is asserting misjoinder or duplicity as was alleged in the Simmons indictment. Judge Ross succinctly responded to that contention:

“With respect to the duplicity or duplicitousness which has been mentioned on several occasions, we fall into the area where the word is used grammatically correctly, but the legal significance of duplicity is not twice stating the crime into counts, but in stating two crimes in one count. I think that is one thing that this indictment clearly avoids, so that there is no duplicity in the legal sense, nor is there any duplicitous count in that legal sense.”

If on the other hand appellant cites Simmons solely for the general propositions he quotes therefrom, we say only that Judge Ross did not abuse his discretion:

“The matter of a misjoinder is generally left to the discretion of a trial court and the courts will guard against injustice and abuse wherever apparent and not permit such a joinder of counts as will embarrass the traverser in his defense by, in the Court’s sound discretion, quashing the indictment, permitting a nol prosse as to a count or counts or compelling the prosecution to elect upon which count or counts to proceed.”
IX.
“Did the Trial Judge err in declining to require the State to furnish various data and transcripts to Appellant under the holdings of ‘Brady’ and ‘Giles’ and also when such documents and reports were utilized by the State’s witnesses in direct testimony?”

In preliminary motions appellant requested “any exculpatory information” which would come within the ambit of Brady, supra, 373 U. S. 83, or Giles, supra, 386 U. S. 66. Appellant was asserting a right grounded in the due process clause of the Fourteenth Amendment, succinctly outlined in Brady, 373 U. S. at 87:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or the bad faith of the prosecution.”

Moore v. Illinois, 408 U. S. 786, set forth three factors which must coalesce to effect the Brady sanction:

“(a) suppression by the prosecution after a request by the defense,
(b) the evidence’s favorable character for the defense, and
(c) the materiality of the evidence.”

Giles

Giles, which followed Brady, added far less to clarifying Brady than that with which it is generally credited. Under the circumstances here, Giles is totally inapposite. Mr. Justice Brennan, writing for the majority in Giles found it “unnecessary and therefore inappropriate, to examine . . . the broad questions whether the prosecutor’s constitutional duty to disclose extends to all evidence admissible and useful to the defense, and the degree of prejudice which must be shown to make necessary a new trial.” The Court decided that because “We now have evidence before us, which neither Judge Moorman nor the Court of Appeals considered, which in our view justifies a remand . . .”, the case would be returned to the Maryland Courts to decide whether the concept of Napue v. Illinois, 360 U. S. 264 had been abused. Napue, and thus Giles, was restricted to the prosecutor who, “although not soliciting false evidence, allows it to go uncorrected when it appears.” Giles, 386 U. S. at 74 quoting Napue, 360 U. S. at 269. It would be difficult to conceive of a Giles-Napue issue arising on direct appeal as opposed to post-conviction relief, Md. Code, Art. 27, § 645A, unless raised on a Motion for New Trial for Newly Discovered Evidence. In the case sub judice there is no contention of exculpatory evidence coming to a prosecutor who “allows it to go uncorrected when it appears.”

Brady

In the court below reams of investigatory material, statements of witnesses, etc. were brought into the court by the State at appellant’s request. The information emanated from an allegedly on-going investigation into corruption in Baltimore County. The court adopted a practice encouraged by the State and prevalent in the federal courts of reviewing the evidence for possible exculpatory material. The State presumably preferred to relieve itself of the consequences of its own misjudgment, which might on the one hand jeopardize this case by inadequate disclosure, or on the other jeopardize its continuing investigation by too much disclosure. Worse yet, the information could have been damaging to innocent persons mentioned in the investigatory records. The court below reviewed the material — as have we — but as an exceptional practice rather than as a general policy.

Nor should Brady or Giles be interpreted as a mandating in camera review. These cases do nothing more than provide the consequences for suppression of exculpatory evidence. They do not provide a constitutional device permitting appellant to cast his net upon the evidentiary waters, nor do they extend our rules of discovery to such broad, net-like fisning expeditions. Since appellant recites instances, however, we will examine each against Brady standards and respond thereto:

1. “Appellant’s counsel asked for . . . three or four pretrial statements of Mr. Harrington to determine if there was any exculpatory information by way of impeachment contained by comparing the various statements.”

Appellant has not established that the suppressed material was favorable, and the very phrasing of the issue evidences that he desired only to rummage for something helpful on cross-examination. Beyond that, we have held in Younie v. State, 19 Md. App. 439, 460, rev’d on other grounds, 272 Md. 233, that “when the allegedly suppressed evidence is not evidence which goes directly to the question of guilt but simply to the impeachment of a State’s witness, the broad consensus of legal thinking is that far more will be required to establish materiality.” See also Link v. United States, 352 F. 2d 207, cert. den., 383 U. S. 915 (8th Cir.).

2. Appellant contends that the court “erred in the same manner ... as to the so-called ‘Liddy Jones Report.’ ”

That report was a compilation or summary, prepared by a prosecutor during a former prosecutorial job, of conversations with a bail bondsman named Fred Frank who had allegedly been solicited for a bribe by the prosecuting witness. Frank had twice testified on the issue in another case. That testimony and Frank himself were equally available to appellant. We note that this report was part of the evidence reviewed by Judge Ross and independently appraised by this Court. We agree in retrospect with Judge Ross’s prospective finding that this is not Brady material.

The appellant next assigns error in not having received:

3. “anything in the State’s file, either in the form of a police report or a memo to the file from the Attorney General’s Office or a member of the staff thereof, relating to [a 5 day stay in a mental hospital by witness Stuart Hirsch] or any of the particulars which had been made known to agents of the State some eight or nine months prior to the trial of the case.”

Upon his examination as a witness, Hirsch asserted his psychiatric communication privilege under Courts Art., § 9-109, with respect to details of his hospitalization. We note that appellant did not suggest the possibility of conflict between his due process-Brady right and the witness’s statutory privilege. Vuitch v. State, 10 Md. App. 389, 397-398, cert. denied, 261 Md. 729, 404 U. S. 868. The details Mr. Hirsch refused to divulge regarding this hospitalization were clearly privileged. All information in the possession of the State was given to appellant prior to trial when asked therefor on discovery. What appellant now seems to ask is whether he received all information possessed by the State which would have been exculpatory. The information not given appellant was also reviewed in cam,era by Judge Ross and resealed for this Court’s scrutiny. There was no exculpatory material revealed that was not privileged.

4. “Another breach of discoverable information not provided to Appellant centered around his [appellant’s] Grand Jury testimony.”

The absurdity of considering this as Brady material is self evident. The appellant even refers to it as discoverable rather than exculpatory. He has not alluded to any evidence in his Grand Jury testimony that was 1) material, 2) demonstrably favorable, and 3) that was not already known to him — three essential prerequisites to the successful invocation of the Brady doctrine. Moore, supra,, 408 U. S. 786; Younie, supra, 19 Md. App. 439. Even under discovery rules it would fall within the discretionary category, see Kardy v. Shook, 237 Md. 524, 540, citing Whittle v. Munshower, 221 Md. 258, 261. In either case there was no error in not providing it to appellant.

5. The final complaint was over the alleged denial of a statement of a defense witness, however, we are at a loss to follow the contention since appellant concedes in his brief that the statement was produced for appellant’s use at the trial.
X.
“Did the Attorney General have the authority to bring about the Indictment in the instant case under the limited terms of the Governor’s directives?”

Again we have serious reservations in responding because the portion of the record purportedly containing the preservation of the question is not before this Court. Since that responsibility lay with the appellant, White v. State, 8 Md. App. 51, cert. denied, 257 Md. 737, it would seem we would not be remiss in declining to respond to this question. Rosenberg v. State, 12 Md. App. 20, cert. denied, 263 Md. 719.

The simplicity of response urges us otherwise. The Governor’s letter of authority to the Attorney General contains the Constitutional authority in paragraph one and the broader warrant in paragraph two. It answers appellant’s inquiry, was in evidence and reads as follows in pertinent part:

“Under the provisions of Article 5, Section 3, of the Maryland Constitution, I hereby direct you to investigate the allegations of corruption of public officials in connection with the arrest, pending prosecution and escape of one, John Edward Jones, from the Baltimore County jail, and to pursue any evidence of criminal violations or administrative irregularities resulting from your investigation. You are authorized to utilize whatever services of the Maryland State Police or other agencies of the State Government you may consider advisable. Furthermore, you and such members of your staff as you may designate may present to any Grand Jury of the State information so developed, and prosecute in any courts of the State such violations of the law as shall be disclosed by the aforesaid investigation.
In the event your investigation of the above discloses acts or conduct in other areas which warrant further investigation, grand jury action or prosecution, you are hereby directed to pursue the same, and you and the members of your staff designated by you shall have all of the same powers with respect thereto that have been conferred by me as to the above.”

Epilogue

We have oft repeated that a defendant is entitled to a fair trial not a perfect one. E.g., Boblits v. State, 7 Md. App. 391, 400, cert. denied, 256 Md. 743. Many of the imperfections here were of appellant’s own making having been tactical decisions made in the field under stress of battle. In light of the alternative options open at the time, even in retrospect we cannot say they were wrong, only that they did not succeed. But the trial itself was fairly conducted, eminently so. Judge Ross’s decisions throughout were not only proper, they were just.

Whether appellant would have been tried and convicted had he been less prominent is a question upon which he asks us to speculate, “But verdicts cannot be upset by speculation or inquiry into such matters.” Dunn v. United States, 284 U. S. 390. It would be ostrich-like for us to say that possibility does not exist however, when the Supreme Court has acknowledged it in the field of defamation. The language used has special significance in light of appellant’s question:

“An individual who decides to seek government office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society’s interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v. Louisiana, 379 U. S. 64, 77, the public’s interest extends to ‘anything that might touch on an official’s fitness for office . . . Few personal attributes are more germane to fitness than dishonesty, malfeasance, or improper motivation, even though those characteristics may also affect the official’s private character.’ ” Cf. Gertz v. Welch, 418 U. S. 323, 41 L.Ed.2d 789, 808.

Judgments affirmed.

Costs to be paid by appellant.

      . “ ... even from those who should be his friends; . . . . ” from an eneomium delivered by Senator William Pitt Fessenden of Maine, in 1866. J. F. Kennedy, Profiles in Courage.

      . “All public records shall be open for inspection by any person........” Md. Code, Art. 76A, § 2; Enacted by the Ch. 698, Laws of 1970, .and amended annually thereafter.

      . Appellant inaccurately employs the term “best evidence” which, in its classic application, treats only documentary evidence. Andresen v. State, 24 Md. App. 128, 203-205.

      . Although appellant’s brief argues only the admissibility of the typed statement as in derogation of the best evidence rule it is questionable at best whether or not he preserved that ground of objection at trial. The court called upon him to state the ground, Md. Rule 522 d, saying:
      “THE COURT: Well, are you suggesting that this typewritten transcript is inadmissible because it is not the best evidence or are you merely saying that if other things being equal, if this is what Sergeant Travers says the tape says, that’s fine, but we have the tape and it says something else?
      MR. WHITE: I think I am taking the latter course.
      THE COURT: So that we are not down to the fine legal issue of whether or not this transcript gets in as Sergeant Travers’ testimony as to what the tape says, you are just reserving the right, in effect, to dispute that this is an accurate transcript —
      MR. WHITE: Yes, Your Honor.
      THE COURT: —of the tape?
      MR. WHITE: Yes, Your Honor.”
      We have, however, elected to meet the best evidence argument presented.

      . Pyrrhus, King of Epirus, after the battle of Asculum in Apulia in 279 B.C., is purported to have exclaimed “One more such victory and we are lost,” hence the term, Pyrrhic Victory.

      A. The relevance of the State’s rehabilitative effort had been created by appellant’s extended attempt to demonstrate Mr. Hirsch’s vindictiveness:
      “ ‘When cross-examining counsel see fit to call out from the witness collateral facts which tend to create distrust of his integrity, fidelity, or truth, it is entirely competent for the adverse party to ask of the witness an explanation which may show that the facts thus elicited were in truth wholly consistent with his integrity, fidelity, and truth, although they thereby prove circumstances foreign to the principal issue, and which, but for such previous cross-examination, they would not be permitted to prove.’ ” U. S. v. 18 Barrels, 8 Blatchf. 478 (1871) cited in 3 Wigmore, Evidence (3d ed.) § 952 at oil.
      In addition to the attack on Mr. Hirsch’s credibility during cross-examination, appellant called a virtual parade of witnesses whose testimony was relevant solely for impeachment purposes. In those circumstances, the trial court’s decision to allow the State to introduce extrinsic evidence in rebuttal to rehabilitate the witness was clearly not an abuse of discretion.
      “Impeachment is not a dispassionate study of the capacities and character of the witness, but is regarded in our tradition as an attack upon his credibility. Under our adversary system of trials the opponent must be given an opportunity to meet this attack by evidence sustaining or rehabilitating the witness. One general principle is that in the absence of an attack upon credibility no sustaining evidence is allowed. A second truism is that when there has been evidence of impeaching facts the proponent may bring contradictory evidence asserting the untruth of the alleged impeaching facts. Such a denial is always relevant and allowable.
      . . . The rehabilitating facts must meet a particular method of impeachment with relative directness. The wall, attacked at one point, may not be fortified at another and distinct point.” C. McCormick, Evidence (2d ed.) § 49 at 102-103.

      . Based on this request, the State furnished the defense, before trial, the following information:
      “With respect to the matter of psychiatric conditions, last Thursday or Friday I learned in a telephone conversation with Mr. Hirsch, for the first time, that in the spring of 1973 he consulted with a Dr. Quattlebaum in Kensington, Maryland, and that thereafter, he admitted himself for, I believe, a five-day period to the Psychiatric Ward of the George Washington University Hospital in D. C. He told me that he was admitted because he was terribly depressed, because his boss, Mr. Green, had been threatening him, and because he was acting as a double agent in the on-going Maryland State Police investigation. He, also; told me that Mr. Green was aware of the fact that he was hospitalized, and that they had telephone conversations while he was at the hospital when Mr. Green called him and he called Mr. Green, but, nonetheless, I do say that I first learned of that last Thursday, and I have no other information other than that. I have not received any documentary evidence of any kind.”


text:
    EDITH H. WALLICK v. ROBERT D. WALLICK
    [No. 872,
    September Term, 1974.]

      Decided May 1, 1975.

    The cause was argued before Moylan, Moore and Mason, JJ.

      Ellsworth T. Simpson, with whom was Gary Howard Simpson on the brief, for appellant.

      William M. Canby, with whom was Jody S. Kline on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Maryland Rule 1035 b provides, in pertinent part:

“On motion filed by any party, an appeal may be dismissed for any one of the following reasons:
2. The appeal has not been properly taken pursuant to Rule 1011 (How Appeal to be Taken).”

Maryland Rule 1011 a, in turn, provides:

“An appeal to this Court shall be taken by filing an order for appeal with the clerk of the lower court; provided, however, that an application for leave to prosecute an appeal in a post conviction case may be filed either with the Clerk of this Court or with the clerk of the lower court to be transmitted forthwith by him, with the record of the post conviction proceeding, to this Court. A copy of the order for appeal shall be served upon all other parties in the manner prescribed by section c of Rule 306 (Service of Pleadings and Other Papers) and proof of such service shall be made in the manner prescribed by section d of Rule 306 (Service of Pleadings and Other Papers).” (Emphasis supplied)

The appellant in this case, Edith H. Wallick, candidly acknowledges that she failed to serve upon the appellee, Robert D. Wallick, any notice of this appeal. The appellee has moved, under Maryland Rule 1035 b 2, to have us dismiss the appeal because of the appellant’s failure to comply with Maryland Rule 1011 a. We have no choice but to do so. Judge Gilbert, writing for this Court in Callahan v. Dean, 17 Md. App. 67, 71, 299 A. 2d 479, 481, dealt with a similar situation concerning a record on appeal, saying in that case:

“In any number of cases, * * * [citations omitted], the Court of Appeals and this Court have stated that the rules of practice are not guides or merely helpful hints to the practice of law. They are precise rubrics established to promote the orderly and efficient administration of justice, and they are to be read and followed. ” (Emphasis supplied)

We again made our position very clear in McAlily v. Bailey, 18 Md. App. 413, 416, 307 A. 2d 500, 502:

“As we have tried to make clear in several of our recent reported decisions, the rules which govern the procedures which must be observed in appealing to this Court ‘are to be read and followed.’ Callahan v. Dean, 17 Md. App. 67, 71, 299 A. 2d 479 (1973); Laukenmann v. Laukenmann, 17 Md. App. 107, 299 A. 2d 466 (1973). In a number of unreported decisions of this Court other putative appellants have also been made aware of our firm insistence that the rules of appellate procedure must be observed. ” (Emphasis supplied)

This is not a case where Notice of Appeal was sent but somehow failed to reach appellee’s counsel. In this case, no such notice was even sent. We dismiss the appeal. We note that even had the merits of the question been reached, the appellant would not have prevailed. This case, coming to us initially from a decision of Judge James H. Pugh in the Circuit Court for Montgomery County, was sent back by us in an unreported decision (Nos. 335 and 496, September Term, 1972) with the following direction:

“The court’s rulings are sufficiently unclear that there is some basis for either interpretation . . . Accordingly, we remand the case to the Circuit Court for Montgomery County for the passage of a clear order establishing the obligations of the parties. The court may entertain such additional evidence as it feels is necessary or desirable for the passage of such an order.”

The order ultimately forthcoming from Judge Ralph G. Shure in the Circuit Court for Montgomery County was “a clear order establishing the obligations of the parties” within the contemplation of our earlier decision.

Appeal dismissed; costs to be paid by appellant.