author: Liss, J.,

text:
    ELLEN PANKEY BOLDEN and CAREY STUART TAYLOR v. STATE OF MARYLAND
    [No. 433,
    September Term, 1979.]

      Decided February 7, 1980.

      The cause was argued before Liss, Wilner and MacDaniel, JJ.

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant Ellen Pankey Bolden. Arthur M. Ahalt, with whom were Goldstein, Ahalt & Bennett, Chartered on the brief, for appellant Carey Stuart Taylor.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State's Attorney for Prince George's County, and Thomas A. Blair, Assistant State's Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Coúrt.

On December 21, 1977, an indictment was returned by the Grand Jury for Prince George’s County charging nine defendants with conspiracy to violate the Controlled Dangerous Substances Act of Maryland, conspiracy to distribute cocaine, conspiracy to possess cocaine with intent to distribute, and conspiracy to possess cocaine. Carey Stuart Taylor and Ellen Pankey Bolden, appellants, were two of the indicted co-conspirators.

An important portion of the evidence offered by the State was based on intercepted telephone communications involving a number of the indicted defendants. A motion, timely filed, was offered to suppress evidence obtained by the wire communications intercepted by the State pursuant to court authorized wiretaps, and a hearing was held before Judge Howard S. Chasanow, who denied the motion to suppress.

Appellants Taylor and Bolden were tried by a jury in the Circuit Court for Prince George’s County and were convicted of conspiracy to distribute cocaine. Sentences were imposed on each of the defendants, and it is from these judgments that this appeal is filed.

Appellants raise eight issues to be determined by this appeal. They are:

I. Did the trial court err in denying appellant’s motion for judgment of acquittal made at the close of the State’s case when the indictment charged a single conspiracy and the proof at trial disclosed multiple conspiracies?

II. Did the trial court err in denying appellant’s motion for separate trial when the evidence showed multiple conspiracies and not a single overall conspiracy between Carey Stuart Taylor, Ellen Pankey Bolden and others?

III. Did the trial court err in allowing the State, at the close of all the evidence, to amend the indictment, over objection by the appellant, by striking from the indictment the names of indicted co-conspirators?

IV. Did the trial court err in refusing to instruct the jury that the mere distribution of cocaine from Carey Stuart Taylor to Amos Steve Tinker for Mr. Tinker’s personal use, on September 27 and October 1, 1977, by itself, was not sufficient evidence to prove a conspiracy between Carey Stuart Taylor and Amos Steve Tinker?

V. Did the trial court err in refusing to instruct the jury that if the jury found multiple conspiracies to exist in the instant case and not a single overall conspiracy, as alleged in the indictment, that the jury must return a verdict of not guilty as to the appellant?

VI. Did the trial court err in granting the State’s motion for continuance of trial date, over objection, when the basis for the motion for continuance was to attempt to obtain additional probative evidence against the appellant when the State had not exercised reasonable diligence to secure the evidence prior to trial?

VII. Did the trial court err in refusing to suppress for use as evidence all telephonic communications intercepted between September 30, 1977 and October 3, 1977 when the order of court authorizing the interception of telephonic communications covered telephone number 891-2926 and the evidence reflected that Amos Tinker changed his telephone number to 891-2460 on September 30, 1977?

VIII. Did the trial court err in failing to suppress all wiretap evidence in light of the State’s failure to obtain a sealing order immediately following the expiration of the wiretap orders?

I, IV and V

The State contends that the alleged conspiracy to violate the Controlled Dangerous Substances Act began in April of 1977. At that time, Amos Tinker had an eighth of a kilogram of cocaine which was “stashed” in the home of Ellen Pankey Bolden, one of the appellants. This cocaine was to be delivered to certain unspecified individuals. In June, 1977, Ramsey Harris, Jr. (an indicted co-conspirator) was advised by Tinker that Bolden would sell him some cocaine, which Bolden later did. In August of 1977, Harris paid Tinker and Bolden for cocaine which was delivered to him by Tinker. After each of these sales, Harris sold the cocaine obtained from Bolden and Tinker to purchasers unknown to the suppliers. Appellant Taylor became involved in the conspiracy in September of 1977. On September 27, 1977, Tinker asked Taylor to supply him with some cocaine for his personal use. Taylor engaged one Leonard Lee on the phone, and Tinker gave Lee directions to reach his home.

In late September of 1977, Tinker was awaiting a shipment of drugs from a supplier in Miami, Florida later identified as Jorge Puga. On September 28, Tinker told Harris he had been unable to contact his supplier. On September 30, Tinker advised Taylor he still had not reached his source and that he needed more drugs for his own use. The police set up surveillance of Tinker’s home and observed Tinker and Taylor walk to Taylor’s car where he handed a lunch-sized paper bag to Tinker. In early October, Tinker told Bolden that he had not heard from his supplier at that time. Sometime between October 9, 1977 and October 13, 1977, Tinker finally reached his supplier.

The State’s theory of the case was that Taylor was the “money man” who supplied the funds to purchase the illegal narcotics. Tinker advised Taylor he had finally been able to contact “his other brother” and asked Taylor “how far do you want me to go?” Taylor told Tinker he could purchase two kilograms. Tinker then called Bolden and told her he would call his “other brother” that night at about 9:00 p.m. At about 8:00 p.m., Tinker left his own home and drove to the home of Jane Busch (indicted as Jane Busch Johnson) and made two phone calls from her home to a number for Puga in Miami. Later that evening, a collect phone call was made and accepted from a Miami number to the phone in Busch’s home. At 6:30 p.m. on October 13, Tinker drive to Bolden’s home and gave her $100 for receiving his phone calls. The evidence indicated that Tinker had paid Bolden $600 over a period of time for accepting his phone calls.

The following day, Tinker called Taylor and told him he had ordered “it.” Tinker then began his arrangements to pick up the two kilograms of cocaine. On October 14, 1977, he told Denise Hackett (another indicted co-conspirator) to make travel arrangements to Florida for Daniel Tinker (brother of Amos Tinker and an indicted co-conspirator) and herself. Amos Tinker also instructed her how to dress for the trip to and from Florida. In the course of the conversation between them, he told Denise that Taylor was bringing him some money. Tinker’s arrangement with his brother, Daniel, was that he was to be paid $1,000 for picking up the drugs in Miami and returning with them to Washington. On October 14, Amos Tinker got cold feet and notified Hackett and Bolden that he “might go talk to the man and postpone the trip” and after advising Denise he “had his man sitting with him,” aborted the trip to Miami.

At this point in the evidence the State introduced testimony which showed Bolden’s further involvement in Tinker’s drug activities. The witnesses testified that Bolden was employed as a police officer in the Metropolitan Police Department and that during the period of time pertinent to this case was assigned as a dispatcher for the Department. One of the State’s witnesses testified that the Department had access to a Naddis computer which stored information about past and present narcotic distributors. On October 14, 1977, during a telephone conversation Tinker asked Bolden to “find out if there’s something on me.” The following day Tinker was advised by Bolden that there was nothing there. Two hours later Bolden assured Tinker she could not have been mistaken in the information she gave him because she had used the computer. On October 16, Tinker again asked Bolden to check before he committed himself to the drug venture. Several additional conversations ensued between Bolden and Tinker in which she assured Tinker there was nothing1 on him in the computer. Tinker, in the latter part of October, began to reschedule the trip to Florida. He set up the plan with Daniel Tinker and Denise Hackett and called Taylor to “get my belongings that you brought me by mistake last week.” Taylor agreed to supply Tinker with $44,000 toward the purchase of a quantity .of cocaine.

On October 31, 1977, Daniel and Amos Tinker and Denise Hackett traveled by air to Miami, Florida where they were met by an unidentified male at the airport who drove them to his house. There Denise and Daniel changed into other clothes for the return bus trip. Prior to their departure from the house, Amos gave Daniel a zippered travel bag containing cocaine. Daniel and Denise then boarded a bus for the return trip to Washington, D.C.

On November 1,1977, Amos Tinker called Ramsey Harris, Jr. and advised him he had a quantity of drugs ready for distribution and suggested Harris come to his home to complete a deal. Tinker then called Taylor and advised that “he was all right” and that the deal had been made in Florida. Later that evening, Denise called Amos to advise him that she and Daniel were home. Daniel was advised to pick up the cocaine and take it to Daniel’s apartment. At about 2:00 a.m. on November 2, Daniel, Amos and Denise met at Daniel’s apartment. Amos took four large bags, each containing one kilogram of cocaine, out of the locked zippered bag. Amos separated the cocaine from two of the larger bags into smaller quantities and placed the smaller quantities into other plastic baggies. He placed the smaller bags and the two large bags into the zippered travel bag. He placed the strainer and several spoons into a brown grocery bag. He then gave Daniel the small quantities of cocaine which Daniel placed in his refrigerator. Hackett and Amos then left. The next morning Amos called Denise and asked her to meet him at Taylor’s meat market. Amos took the zippered travel bag from Denise and told her he would meet her later. Amos was under surveillance by an agent of the Drug Enforcement Administration when he took the bag into the market. Two hours later Amos left the market without the bag. There was no evidence that Taylor ever got possession of any of the cocaine brought from Florida or that Taylor ever distributed any of it.

On November 3,1977, Amos gave some baggies containing cocaine to Denise with instructions she was to deliver a bottle containing cocaine to Tommy Tate (an indicted co-conspirator) and one of the baggies each to Harris and “Jerry” when they came for it. Harris picked up his share and drove to Oxon Hill where he was arrested by the police. The police found a small quantity of cocaine on his person. The same day, Daniel was arrested in his apartment and the police found cocaine in his refrigerator. There was expert testimony by one of the detectives that a kilogram of cocaine in the fall of 1977 would have cost between $35,000 and $42,000 and that cutting the kilogram could produce about 4.5 kilograms for street sale at a total price of $322,000.

We have detailed the facts contained in the record in this case because the appellants have raised a defense with which the Maryland Courts have never previously dealt; i.e., the distinction to be made between a single conspiracy and multiple conspiracies for purposes of determining whether a variance in proof exists when an indictment charges a single conspiracy and proof at trial discloses multiple conspiracies. Appellants contend that the State obtains an unfair advantage if it is permitted to transform several separate transactions into one conspiracy; Under those circumstances, the State is permitted to introduce the acts and statements made by co-conspirators in. a transaction against individuals involved in an entirely separate transaction by relying upon the co-conspirators’ exception to the hearsay rule.

While our Courts have not been required previously to consider this issue, it has been raised in a number of federal jurisdictions. The multiple conspiracy defense has been most often analyzed in terms of “chain” and “wheel” conspiracies. See Note, Federal Treatment of Multiple Conspiracies, 57 Colum. L. Rev. 387 (1957); Tarlow, Defense of a Federal Conspiracy Prosecution, 4 National Journal of Criminal Defense 225-39 (1978). A “wheel” conspiracy is shown when a number of people (the spokes) are engaged in similar relationships with the same individual (the hub). The “chain” conspiracy is characterized by different activities carried on with the same subject of a conspiracy in such a manner that each conspirator in a chain-like manner performs a separate function which serves in the accomplishment of the overall conspiracy. United States v. Perez, 489 F.2d 511 (5th Cir. 1973). If we accepted appellants’ contention that this was in fact a “wheel” conspiracy, the prosecution, pursuant to federal case dictates, would be required to prove that the existence of the other spokes was known to a particular defendant, and that that defendant did something in furtherance of a single, illegal enterprise in order that he be found to have conspired with the other spokes of the wheel. United States v. Levine, 546 F.2d 658 (5th Cir. 1977); United States v. Manarite, 448 F.2d 583 (2nd Cir.), cert. denied, 404 U.S. 947, 92 S. Ct. 303 (1971).

The classic case is Kotteakos v. United States, 328 U.S. 750, 66 S. Ct. 1239 (1946), in which thirty-two defendants were charged with conspiring to obtain government loans by fraud. The proof at trial showed one central figure (the hub) who acted as broker for all the other loans and at least eight separate loan transactions. No other connection was shown among those procuring the loans (the spokes). The Court analogized this to a wheel without a rim to enclose the spokes and reversed the convictions because of the prejudicial variance in proof. A close examination of Kotteakos, however, discloses that it is factually inapposite to the case sub judice.

The evidence produced by the Government in Kotteakos proved eight or more different conspiraciés by separate groups of defendants who had no connection with each other except that all utilized one broker to handle fraudulent applications for loans. The trial court instructed the jury that only one conspiracy was charged, and that the acts and declarations of one conspirator bound all. In addition, the Government conceded that the appellants were convicted of a single general conspiracy by evidence which the Government admitted proved not one conspiracy but eight or more different ones of the same sort executed through a common key figure. 328 U.S. at 752. Under these circumstances, the Supreme Court reversed on the grounds that the appellants suffered substantial prejudice from being convicted of a single general conspiracy.

In the case at bar, it is clear to us that the evidence showed that the conspiracy had only one objective — to acquire cocaine for the purpose of distribution. It is clear that appellant Taylor acted with Amos Tinker to accomplish this end by providing the money for the purchase, and that Bolden, the other appellant, acted as the agent of Tinker to accomplish the same end by serving as a messenger for Tinker and by attempting to discover the existence of possible telephone surveillance. As we have carefully detailed in the recitation of the facts in this case, each of the other persons was involved in furthering the same general conspiracy. There was no proof of multiple conspiracies, and therefore no variance.

The evidence produced by the State was more than sufficient to permit the jury to find beyond a reasonable doubt that Amos Tinker, Bolden and Taylor had reached a meeting of the minds, a unity of design and purpose. As the Court of Appeals noted in Greenwald v. State, 221 Md. 245, 250, 157 A.2d 119 (1960): “If it be proved that the Defendants sought the same objective and that one performed one function and the other another in the attainment of that objective, the inference that they were engaged in a conspiracy will be justified.” The Supreme Court in United States v. Perez, supra, at 62, said:

[tjhere is no requirement that every defendant must participate in every transaction in order to find a single conspiracy.... With respect to the objectives of the conspiracy, it can be said that the prohibited activity must be committed in furtherance of a common objective.... [N]ot only must the objectives of all charged under one conspiracy be common, but there must be one objective, or set of objectives, or an overall objective to be achieved by multiple actions.

In Blumental v. United States, 332 U.S. 539, 557, 68 S. Ct. 248 (1947), the Court said: “[T]he law rightly gives room for allowing the conviction of those discovered upon showing sufficiently the essential nature of the plan and their connection with it, without requiring evidence of knowledge of all its details or of the participation of others.”

Appellant Taylor in his fourth issue contends that the trial court erred in refusing to grant his specific instruction to the jury that the distribution of cocaine from Taylor to Tinker on two occasions was not sufficient evidence, by itself, to prove a conspiracy between appellant and Tinker. We find no merit in this contention. The trial court properly covered the requested instruction in the general instructions it gave to the jury on the law of conspiracy. The instruction as given was clear, specific and concise, and more than adequately advised the jury as to the proof required to find the appellants guilty beyond a reasonable doubt. It correctly advised the jury that it was required to weigh all the evidence, that it must consider the acts of all the co-conspirators, and that an association of two parties is not itself sufficient to prove conspiracy. See Bartholomey v. State, 260 Md. 504, 273 A.2d 164 (1971), vac. in part, 408 U.S. 938, 92 S. Ct. 2870 (1972).

In his related fifth issue, appellant Taylor argues that the trial court erred in refusing to instruct the jury as to the law of variance. We do not agree. It is settled law in Maryland that the trial court must instruct on every point of law essential for proof of the crime charged and supported by the evidence when a request is made to do so. Maryland Rule 757 b; Couser v. State, 36 Md. App. 485, 374 A.2d 399 (1977), aff'd 282 Md. 125, 383 A.2d 389 (1978). But the trial court may justifiably decline to give such requested instructions where there is no evidence to support it. See United States v. Anderson, 532 F.2d 1218 (9th Cir. 1976), cert. denied, 97 S. Ct. 111 (1976); United States v. Kearney, 560 F.2d 1358 (9th Cir. 1977), cert. denied, 98 S. Ct. 522 (1977). A reading of the trial court’s instructions actually given convinces us that the jury was given complete advisory instructions on the essential elements of conspiracy; that the jury’s attention was focused on whether the appellant ever became a member of the conspiracy; that the indictment alleged a single conspiracy; and that the jury could convict both, one or none of the accused. The jury was adequately instructed notwithstanding the omission of appellant’s requested instruction. United States v. Bernstein, 533 F.2d 775 (2d Cir. 1976), cert. denied, 97 S. Ct. 523 (1976).

II

At the pre-trial motion hearing on May 23, 1978, appellant Taylor admitted to the trial court that no grounds then existed upon which he could legally be granted a separate trial from his co-defendants. This amounted to a waiver of his right to object to the trial court’s pre-trial ruling. Rule 736 a. As we have held that there was no proof of multiple conspiracies and the evidence was sufficient to support the finding that appellant conspired with Amos Tinker, Ellen Bolden and others to distribute cocaine, the evidence would be mutually admissible as to Bolden and appellant. No prejudice accrued to appellant Taylor by reason of the trial court’s refusal to order separate trials. See Shingleton v. State, 39 Md. App. 527, 545-46, 387 A.2d 1134 (1978). The denial of the motion for separate trial was correct. Rule 745.

Ill

Appellant Taylor contends that the trial court erred in permitting the State to strike the names of three named conspirators over his objection at the end of all the evidence. He argues that amounted to an amendment of the indictment as to substance and not as to form, and that the court’s action changed the crime charged against, him from a conspiracy involving nine persons to one involving six persons. He further argues that the amendment permitted him to be convicted of a different conspiracy from the one charged in the indictment. The law is well settled that amendments of substance include the characterization of the crime as well as the essential facts which must be proved to make the act complained of a crime, all else being form. Brown v. State, 285 Md. 105, 400 A.2d 1133 (1979); Corbin v. State, 237 Md. 486, 206 A.2d 809 (1965).

We said in Terrell v. State, 34 Md. App. 418, 422-23, 367 A.2d 95 (1977), in discussing the law of conspiracy:

It is, of course, true that the crime of conspiracy cannot be committed by one person alone. The gravamen of the crime is the unlawful agreement between two or more persons. This does not mean, however, that more than one conspirator must be convicted or prosecuted. [Citation omitted.] It is only essential to show that at least two persons had a meeting of the minds — a unity of design and purpose — to accomplish a criminal or unlawful act, or to do a lawful act by criminal or unlawful means. [Citation omitted.] [Emphasis, added.]

It follows, then, that even with the deletion of the names of the three co-conspirators from the indictment, the charge against the appellant still alleged the unlawful combination of two or more persons, and the character of the crime remained the same, that of conspiracy to distribute controlled dangerous substances. The amendment permitted by the trial court may be construed as substantive only where it eliminated that part of the indictment which alleged the particular conspiracy charged so that appellant would be unable to defend himself or to subsequently plead double jeopardy. State v. Lassotovitch, 162 Md. 147, 159 A. 362 (1932). We conclude the amendment permitted was as to a matter of form and not as to substance.

VI

Appellant Taylor was indicted with eight co-defendants on December 21, 1977. The State filed a motion for continuance on December 21, 1977 on the ground that new evidence previously unavailable to the State had become available because of plea negotiations and the resultant cooperation of Amos Tinker, Daniel Tinker, Denise Hackett and Ramsey Harris, Jr. Appellant Taylor did not object to the continuance per se but did object to its length (six weeks), contending a delay of not more than one week should have been permitted. It may well be that appellant has waived his right to challenge the continuance granted by the trial court and the matter is not properly before us. Rule 1085. However, assuming, arguendo, the issue has been properly preserved, we find no merit in it.

We set out in Bethea v. State, 26 Md. App. 398, 338 A.2d 390 (1975) the criteria for determining extraordinary cause which would justify a continuance to secure a missing witness under Rule 746 b. The trial court is required to determine: 1) whether there was a reasonable expectation of securing the evidence of the witness within a reasonable time; 2) whether the proffered evidence was competent and material; 3) whether the case could be fairly tried without the proffered evidence; 4) whether reasonable diligence to secure the evidence prior to the assigned trial date had been exercised by the party seeking the postponement.

The motion for continuance in the present case stated that the State expected to acquire evidence previously unavailable to it which went to the identity of the person who sold cocaine to Amos Tinker on October 30, 1977. That evidence also indicated the identity and subsequent availability at trial of the person who transported cocaine to Amos Tinker from and at the direction of the appellant on September 28, 1977.

Appellant Taylor urged at the pre-trial hearing and in his brief before us that the State, in obtaining a continuance on November 30, 1978 to gather additional evidence, failed to exercise due diligence because of the length of time between indictment and the plea negotiations with co-conspirators. The record does not support that contention. Pre-trial motions were not completed until July 7, 1978, and final rulings on motions to suppress were not made until August 4,1978. One of the indicted co-conspirators, Amos Tinker, failed to appear for a pre-trial hearing and was not available for plea negotiation until November 6, 1978. Agreement with Amos Tinker was not reached until November 9, and the deposition of Amos Tinker was scheduled for November 29, 1978 but could not be taken because of his serious medical condition. Because of his terminal illness, the State was unable to produce Tinker as a witness and required the additional time to follow the leads provided by Tinker. Under the circumstances, we find no abuse of the trial court’s discretion in granting the State’s request for a continuance.

YII

On September 27, 1977, agents for the State obtained a court order which authorized the interception of telephone communications “occurring over telephone line 891-2926 installed at 652 Fairview Avenue, Takoma Park, Prince George’s County, Maryland.” On September 30, 1977, the agents of the State, in the process of executing the lawfully authorized interception of a telephone call on that line, overheard that the number of the telephone at which they were that instant had been changed to 891-2460. An amended order was sought and issued on October 3, 1977 authorizing the interception of telephone communications occurring over telephone 891-2460. Appellant Taylor argues the trial court erred in refusing to suppress all intercepted telephonic communications between September 30,1977, when the State learned of the changed number, and October 3, 1977, when the amended order was signed. Appellant concedes that under 18 U.S.C. Section 2518 (4) (b) (1970) and Maryland Code (1974, 1979 Cum. Supp.) Courts Article, Section 10-408 (d) (ii), the State would have been entitled to obtain an order in general terms of the “nature and location of communication facilities where authority to intercept is granted.” The appellant asserts, however, that the State obtained an order of court far narrower than that which the statutes authorized and that the State was therefore restricted to the interception and recording of telephone wire communications occurring only over telephone number 891-2926. Appellant contends that as soon as the officers discovered there was a change in the telephone number from 891-2926 to 891-2460, they were required by the strictures set out in State v. Siegel, 266 Md. 256, 292 A.2d 86 (1972) and Poore v. State, 39 Md. App. 44, 384 A.2d 103 (1978), to immediately cease interception until an amended order was obtained, and therefore, that the conversations intercepted in the interim period should have been suppressed. We think this argument is specious.

It is clear that the description requirements of 18 U.S.C. 2518 (4) are for the purpose of protecting the subject of a warrant from a general search or surveillance. See United States v. Bynum, 386 F. Supp. 449, 461 (S.D.N.Y. 1974) (“[ Variations between the description in the warrant and the search actually conducted and the materials actually seized do not necessarily render the search and seizure invalid and. require suppression”).

In the present case, the variance in the telephone numbers did not reflect an actual variance in surveillance as the phone being intercepted remained the same and no interception occurred over any other telephone line other than that designated in the original order as being located at 652 Fairview Avenue. In addition, the State obtained an amended order within a reasonable time from its discovery of the change in number. Under the circumstances, we find no error in the trial court’s ruling on this motion.

VIII

Finally, appellant Taylor asseverates that the trial court erred in its denial of his motion to suppress all the wiretap evidence in the case. The interception of communications ended on November 4,1977. A sealing order was obtained on November 7, 1977. 18 U.S.C. 2518 (8) (a) (1970) and Section 10408 (g) (1) of the Courts Article of the Annotated Code of Maryland (1974, 1979 Cum. Supp.) require that recordings made pursuant to a court order must be sealed under the court’s direction immediately after the expiration of the period of a .wiretap order. In the absence of an immediate sealing order, a satisfactory explanation for the delay is required. See State v. Cerbo, 78 N.J. 595, 397 A.2d 671 (1979). Appellant contends that the passage of the time from November 4 to November 7 permitted the State to possibly tamper with the recordings, and that the failure to obtain a prompt sealing order defeated the purpose of protecting the recordings from alteration. It must be stated, however, that there was no evidence offered to suggest that any tampering or alteration was attempted. Appellant urges that the failure to obtain an immediate sealing order from the judge who authorized the wiretap required the total suppression of all the wiretap evidence in the case. See United States v. Gigante, 538 F.2d 502 (2d Cir. 1976); United States v. Ricco, 421 F. Supp. 401 (S.D.N.Y. 1976); Poore v. State, supra.

We do not agree with appellant’s position. There was testimony that November 4 was a Friday, and that the telephone interception ended at 11:00 a.m. The officer in charge of the recordings was off duty over the weekend, but prepared the tapes for sealing immediately upon reporting for work on Monday. The recordings were presented for sealing immediately thereafter. We think there was a satisfactory explanation for the minimal delay, and that compliance with the statutes was shown. See United States v. Caruso, 415 F. Supp. 847 (S.D.N.Y. 1976); and Poore v. State, supra, where delays of twenty-four days and forty-two days were held to be satisfactorily explained. Sec also United States v. Diana, 605 F.2d 1307 (4th Cir. 1979) (case law on the sealing requirement discussed and a delay of thirty-nine days did not require suppression of telephone recordings).

Appellant Bolden also appealed from the judgments rendered against her in the Circuit Court for Prince George’s County and raised five questions to be decided by her appeal, some of which are answered in Taylor’s appeal and some others of which raise issues not included in those posited by Taylor. The five issues are stated as follows:

1. Did the trial judge err in admitting evidence of appellant’s alleged conspiratorial activities prior to September 27, 1977?

2. Did the trial judge err in admitting the acts and declarations of third parties under the co-conspirators’ exception to the hearsay rule?

3. Did the trial judge err in denying appellant’s motion for severance?

4. Did the trial judge err in admitting testimony concerning the existence and operation of the Naddis computer?

5. Did the trial judge err in denying appellant’s motion to suppress?

1.

Bolden, by the indictment returned against her, was charged with participation in a conspiracy that was alleged to have begun in April of 1977 and to have continued until November of 1977. She argues, however, that the trial court erred in admitting evidence of her activities prior to September 27, 1977. She points specifically to the testimony of Ramsey Harris, Jr. who testified that on April 25,1977, he saw Amos Tinker at Bolden’s house “making up an eighth of cocaine for someone else to pick up.” Harris also testified as to Bolden’s awareness of Tinker’s activities, that in June, he received cocaine from Bolden at Tinker’s direction, and that in August, he paid Bolden for cocaine he had received from Tinker. Bolden contends that this evidence involved a previous, separate conspiracy .between Tinker and her, and was isolated from the subsequent conspiracy between Amos Tinker and appellant Taylor. We do not agree. Bolden’s reliance on Ross v. State, 276 Md. 664, 350 A.2d 680 (1976) and Cross v. State, 282 Md. 468, 386 A.2d 757 (1978) is misplaced because Harris’s testimony involved only the specific single crime charged in the indictment and did not involve another crime. The evidence produced by the State clearly presented an on-going conspiracy to distribute cocaine. It is clear that Bolden throughout the period from April to November conspired with Tinker and later with Tinker and Taylor to distribute cocaine and to acquire additional cocaine to distribute. As was said in Greenwald v. State, 221 Md. 235, 250-51, 155 A.2d 894 (1960): “[I]f the conspiracy contemplated the continuous cooperation of the conspirators in the perpetration of a series of offenses against the sovereign within its scope and purpose, it was in effect ‘a partnership in criminal purposes,’ and continued until the time of its abandonment or the final accomplishment of its purposes.” The activities of Bolden from April until November, then, were part of an on-going conspiracy to distribute cocaine.

Nor was there any evidence by Bolden that she took the necessary affirmative action to disavow or defeat the purposes of the conspiracy nor were there any positive steps made by Bolden to disassociate herself from the conspiracy in the April to November period. See Hyde v. United States, 225 U.S. 347, 32 S. Ct. 793 (1912); United States v. Chester, 407 F.2d 53 (3d Cir.), cert. denied, 394 U.S. 1020 (1969).

2.

Appellant Bolden, at pre-trial suppression hearings, moved to suppress the taped conversations offered by the State on the grounds that the State failed to comply with a number of the specific dictates of 18 U.S.C. Section 2518 (8) (a) (1970) and Code (1974, 1979 Cum. Supp.) Courts Article, Section 10-408 (g) (1). Her motions to suppress were denied. Bolden now argues that the State produced an insufficient foundation to justify the admission into evidence of the taped conversations. No such objection was raised either at the pre-trial suppression hearings or at trial. The issue has not been preserved on appeal. Rule 1085; von Lusch v. State, 31 Md. App. 271, 356 A.2d 277 (1972).

3.

We have stated our reasons for our finding that the trial court did not err in refusing to grant Taylor’s motion for severance. The same reasons are applicable as to Bolden.

4.

Detective Nelson was permitted to testify as to the existence and operation of the Naddis computer maintained by the Drug Enforcement Administration. This system was stated to be international in scope and used to store information on past and current narcotic distributors. Nelson also stated that District of Columbia police officials had access to the Naddis system. The trial court instructed the jury that Nelson’s testimony as to the computer was admitted to show the storage of information but not to create “any inference that either of the defendants on trial (Taylor or Bolden) are in that computer in any shape or form.” Appellant Bolden argues that that testimony was irrelevant. We do not agree. We think Nelson’s testimony supplied the nexus between Bolden’s access to the computer and the request made by Amos Tinker that she check whether telephone surveillance was directed against him.

5.

Appellant Bolden also raised the issue of delay in obtaining a sealing order as to the taped telephone conversations and our failure to find error in the court’s refusal to suppress the conversation in Taylor’s appeal is equally applicable here.

Judgments affirmed as to each appellant, costs to be paid two-thirds by Taylor, one-third by Bolden.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    BURANDOUS KENNEDY v. STATE OF MARYLAND
    [No. 452,
    September Term, 1979.]

      Decided February 7, 1980.

    The cause was submitted on briefs to Thompson, Moore and Melvin, JJ.

      Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, F. Ford Loker, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Jimmy L. Hill, Assistant State’s Attorney for Montgomery County, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

In July, 1978, in the Circuit Court for Montgomery County, Burandous Kennedy, appellant, was convicted by a jury of first degree rape. He was sentenced to life imprisonment. On appeal he contends that (1) the trial court erred in admitting his confession which was taken in violation of Maryland District Rule 723 a; and (2) the trial court erred by permitting the prosecuting witness to make an incourt identification of appellant since it was based on an impermissibly suggestive pretrial photographic lineup.

The record shows that appellant was arrested by Takoma Park Police between 8:15 and 8:30 a.m. on August 23, 1977, when he was apprehended at the scene of a rape not related to that charged in the instant case. He was transported to Takoma Park Police Station at about 9:00 a.m. and placed in a holding cell. At approximately 1:30 p.m. that afternoon, appellant was given Miranda rights and interrogated for about two hours. At the outset of the interrogation, the detective gave appellant information about two rapes, other than the one for which he had been arrested, in which his photograph had been identified by the victims. The detective told appellant that he was the suspect of several other rapes. Appellant made several incriminating statements during this period of questioning unrelated to the instant charge. Later that day, appellant was questioned by D.C. police about certain rapes that had taken place in that city. Shortly after 8:00 p.m. that evening, appellant was taken before a Commissioner in the Silver Spring Police Station where he was advised of his rights pursuant to M.D.R. 723 a. Although charging documents in three other cases were filed against him, no charging document in the instant case was filed at that time. On August 24, 1977, appellant was taken before a District Court judge in Montgomery County to be charged in certain other cases. Again, he was not charged in the instant case. At approximately 8:15 p.m. on August 24, appellant confessed to the rape in the instant case after a detective told him he had been identified by the prosecuting witness. Appellant also made incriminating statements on August 25, when he was driven to the scene of the rape. None of the incriminating statements, made during the period of illegal detention related to the instant rape. In the suppression hearing, the trial court, relying on Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978), ruled that there was an unnecessary delay in violation of M.D.R. 723 a between the arrest of the appellant and his presentation to the Commissioner on August 23, and thus any statements made before he was presented to the Commissioner must be excluded. The court also ruled that the confessions at issue in this case, made after appellant came before a Commissioner, were not tainted by the earlier statements taken in violation of Rule 723 a. The record shows that the appellant was not indicted for the instant rape until September 23, 1977.

Relying on Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. Ed. 2d 1047 (1968), appellant argues the confessions of August 24th and 25th were tainted by the earlier confession. No argument was presented that the confessions were not voluntary, or taken without giving Miranda warnings, rather the argument is that the “fruit of the poisonous tree” doctrine applies to the rule of Johnson v. State, supra, where the Court of Appeals held .that confessions taken in violation of Rule 723 a must be excluded. In Johnson v. State, the appellant made two incriminating statements concerning two different crimes. One statement was made prior to his appearance before the Commissioner and the second was made after. The Court of Appeals suppressed both statements. The Court found that the first statement, made during an unnecessary delay, was clearly in violation of M.D.R. 723 a. The second statement, made after appellant was taken to the Commissioner, was suppressed because:

“We cannot say, on the record before us, that the second confession was an independent act, occurring after time for deliberate reflection and therefore free from the taint of the preceding illegal detention. In sum, then, unless appellant waived his right to prompt presentment before a judicial officer, both statements implicating him in the crimes of January 13 and 24, should have been excluded from evidence, having been obtained in clear violation of M.D.R. 723 a.” 282 Md. at 330, 384 A.2d at 718.

Thus, if the first confession is taken in violation of Rule 723 a, the State must prove that the subsequent confession given after a criminal defendant is taken before a Commissioner is “an independent act, occurring after time for deliberate reflection.” In the instant case, the August 23rd confession which the lower court found was taken in violation of M.D.R. 723 a, did not taint the confessions of August 24th and 25th. This holding is supported by three recent cases interpreting Johnson: Meyer v. State, 43 Md. App. 427, 406 A.2d 427 (1979), cert. denied, 286 Md., December 20, 1979; Davis v. State, 42 Md. App. 546, 402 A.2d 77 (1979), cert. denied, 286 Md., September 10, 1979; Chaney v. State, 42 Md. App. 563, 402 A.2d 86 (1979), cert. denied, 286 Md., September 10, 1979.

More importantly, the case of Ryon v. State, 29 Md. App. 62, 71-72, 349 A.2d 393 (1975), aff’d, 278 Md. 302, 363 A.2d 243 (1976), provides the principles for determining whether the instant confessions were tainted by the earlier confession:

“4) Admissibility of such statements, vel non, must be answered on the facts of each case, upon consideration of:
(a) the voluntariness of the statement, which is a threshold requirement;
(b) compliance with the Miranda safeguards, which is important in determining whether the statements were obtained by exploitation of the illegal conduct;
(c) other relevant factors, such as
(i) the temporal proximity of the arrest and the confession;
(ii) the presence of intervening circumstances; and
(iii) ‘particularly, the purpose and flagrancy of the official misconduct.’ ” 29 Md. App. at 71-72.

As we have said, the voluntariness of the statement and compliance with the Miranda safeguards are not contested by appellant. The “other relevant factors” also support a finding that whatever taint flowed from the confessions prior to the “Initial Appearance” hearing had been attenuated by the time the contested confessions in the instant case were made.

(1) Temporal Proximity: The arrest for the unrelated rape occurred on August 23, 1977, at 8:30 a.m. The confession to the rape in the instant case began at 8:15 p.m. on August 24, 1977.

(2) Intervening Circumstances: The most important intervening events were appellant’s hearings before the District Court Commissioner, pursuant to M.D.R. 723 a at 8:30 p.m. on the day of arrest, August 23, 1977, and the appearance for bail review before the Judge of the District Court the following morning. Also pertinent is the record of numerous oral and written advisements of the Miranda rights by various police officers, from 1:00 p.m. on August 23,1977 to 8:15 p.m. on August 24, 1977.

(3) Official Misconduct: There was credible evidence presented to the lower court that appellant was at all times well-treated by the police. There was no evidence of any purposeful official misconduct.

Based on these factors we hold that appellant’s confessions to this rape were not tainted by his previous confessions which were in violation of Rule 723 a.

Appellant additionally contends that M.D.R. 723 a was violated because he was not presented before a magistrate within a reasonable time after there was probable cause to arrest him. Appellant contends that he was under arrest on the instant charge from 3:30 p.m. on August 24, when his photograph was identified by the rape victim. We do not agree that he was under arrest simply because there was probable cause to arrest him. In Bouldin v. State, 276 Md. 511, 350 A.2d 130 (1976), the Court of Appeals set out the factors necessary for an arrest:

“It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested. 5 Am. Jur. 2d Arrest § 1 (1962). It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested. 6A C.J.S. Arrest § 42 (1975); Creamer, The Law of Arrest, Search and Seizure, ch. 3, at 49 (1968).
“We have defined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosecuting him for a crime. McChan v. State, 238 Md. 149, 207 A.2d 632 (1965); Cornish v. State, 215 Md. 64, 137 A.2d 170 (1957). Our cases make clear, as McChan states, that in ordinary circumstances ‘there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits [but] [w]here there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit.’ 238 Md. at 157. Ordinarily, therefore, there can be no arrest where there is no restraint or where the person sought to be arrested is not conscious of any restraint.” 276 Md. at 515-16. (emphasis added).

These elements were not satisfied because the police had no intention of arresting appellant on the instant charge at that time. The State decided to proceed by indictment and not by an arrest. In United States v. Lovasco, 431 U.S. 783, 97 S. Ct. 2044, 52 L. Ed. 2d 752 (1977), the Supreme Court stated:

“It should be equally obvious that prosecutors are under no duty to file charges as soon as probable cause exists but before they are satisfied they will be able to establish the suspect’s guilt beyond a reasonable doubt. To impose such a duty ‘would have a deleterious effect both upon the rights of the accused and upon the ability of society to protect itself,’ United States v. Ewell, supra, 383 U.S., at 120, 86 S. Ct., at 776. * * * From the perspective of law enforcement officials, a requirement of immediate prosecution upon probable cause is equally unacceptable because it could make obtaining proof of guilt beyond a reasonable doubt impossible by causing potentially fruitful sources of information to evaporate before they are fully exploited. And from the standpoint of the courts, such a requirement is unwise because it would cause scarce resources to be consumed on cases that prove to be insubstantial, or that involve only some of the responsible parties or some of the criminal acts. Thus, no one’s interests would be well served by compelling prosecutors to initiate prosecutions as soon as they are legally entitled to do so.” 97 S. Ct. at 2049-50. (footnotes omitted).

We hold that Johnson v. State does not require that confessions, made before an actual arrest but after there is probable cause to arrest, be suppressed, even though the accused is being held for other crimes.

Appellant’s second contention is that the incourt identification by the victim was the result of a suggestive extrajudicial photographic lineup. The victim was told before being presented the photographic array that the police had a suspect in custody. The police suggested to her that “she should pick someone out.” She was shown five pictures. She chose one but stated she “wasn’t sure about the mouth.” Then she was shown five more pictures. With regard to the second set of pictures, she testified, “the first picture I saw, I knew it was it.” She testified that she had been sure of the second photograph she picked out. The evidence indicated that she had an opportunity to view her assailant’s face during the assault. The court ruled that the pretrial identification was not improper or illegal.

In Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968), the Court stated:

“[EJach case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” 88 S. Ct. at 971.

In view of the very positive photographic identification, in the instant case the police statements did not raise a substantial likelihood of irreparable misidentification. The victim’s incourt identification was properly admitted.

Judgment affirmed.

Appellant to pay the costs.

      . Johnson was patterned after the McNabb-Mallory Rule adopted by the Supreme Court in Mallory v. United States, 354 U.S. 449, 77 S. Ct. 1356, 1 L. Ed. 2d 1479 (1957); Upshaw v. United States, 335 U.S. 410, 69 S. Ct. 170, 93 L. Ed. 100 (1948) and McNabb v. United States, 318 U.S. 332, 63 S. Ct. 608, 87 L. Ed. 819 (1943).


text:
    JERRY JUNIOR OFFUTT v. STATE OF MARYLAND
    [No. 569,
    September Term, 1979.]

      Decided February 7, 1980.

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

      Patricia A. Logan, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, AndrewL. Sonner, State's Attorney for Montgomery County, and
      Michael D. Mason, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Jerry Junior Offutt, appellant, was convicted in the Circuit Court for Montgomery County of assault with intent to rob. Judge John F. McAuliffe, presiding with a jury, imposed a sentence of ten years. The various contentions of the appellant will be set out separately.

I. Sufficiency of the Evidence

Appellant contends that the evidence was insufficient to support his conviction. The important testimony can be summarized as follows:

Kelly Anne Hickey, aged 16, was a part-time employee at Garrison’s Toy Store. On November 11, 1978, at 5:30 p.m., a man came in and asked her for change. As she started to open the cash register, he handed her an envelope on which was written “give me call [sic] your money.” She did not understand what it meant, and when she looked the man in the face he said, “can’t you read?” When she replied, “yes,” he said, “give me all your money.” She said, “No, you can’t have it. It’s not mine.” She noticed that:

“He had his hand in his pocket and he — like he had a gun and I guess he wanted me to believe he had a gun and he said, ‘Do you want to die?’
“Q. What pocket are you referring to now, his pants pocket?
“A. His jacket pocket.
“Q. Like he had a gun. What made you conclude that, because of the way his hand was in his pocket?
“A. His hand was in the pocket and the way he pointed it up to me and said, ‘Do you want to die?’ ”

The incident concluded:

“[Miss Hickey]: Well, I thought — I said, ‘This is a joke or something,’ because I didn’t think that, you know, he would be coming in and robbing Garrison’s. I don’t have that much money in the register, and then he said, yeah, he was just kidding and he pulled a toy off the shelf and said he would buy that and he put it on the counter.
“Q. Did he buy the toy?
“A. He pulled out some money and said he would pay for it and there was a lot of money in his pocket, and I said no.
“Q. What did you tell him?
“A. I told him he scared me and asked him to leave.
“Q. What, if anything, did he say after that?
“A. He asked me where he could buy some beer and there’s a beer place next door and I told him next door.
“Q. And after telling him where the beer store was, what, if anything, else, did you tell him?
“A. I kept telling him to leave and he left but right before he left a little girl walked in the store and I don’t know if that’s why he left.
“Q. You indicated that at first you were uncertain what the note meant and after a while you thought he was kidding?
“A. Yes.
“Q. Did there come a time during the events of that particular transaction that your opinion changed?
“A. Well, when he asked me did I want to die, that sort of scared me and when he pulled out all that money, it didn’t look right.”

The police were called, and when they arrived, Detective Thieman showed her a piece of yellow paper that had the same writing as she had been shown. She identified the yellow paper in court. She was also shown photographs by Detective Thieman, and picked one out as possibly being the man, although she was not sure. She earlier described the man as being six feet tall, 155 to 160 pounds, wearing red and blue plaid pants and a tan jacket.

Jeff Richards, aged 17, was employed at McDonald’s. On November 11, 1978, at 4:30 p.m., the following incident occurred:

“So this man came in and a couple of people and they got in line and I served the rest of the people. And he came up and so he bought some food and after a while, he paid me, and so when I go to my register, he gives me a note that said, ‘Give me call [sic] your money.’ I said, ‘What the heck?’ I didn’t know what it meant. So he gave it back to me and I said, you know, I don’t know what this means. So he says, ‘Didn’t I say a chocolate shake?’ And I said no. I said, ‘You owe me two cents,’ and he gave me a nickel and I gave him three cents and he left.”

Richards described the man as being “about six foot, a little heavy, had a beard, had a mustache.” His clothing was “a blue plaid jacket with some red in it and some white, and pants about the same.”

According to Richards, Detective Thieman arrived at McDonald’s about twenty minutes after the incident. He had in his possession the same note that Richards had seen and which Richards identified at trial. Thieman also showed Richards some photographs, and Richards said he selected one that looked like the man, which photograph he identified at trial. Richards explained that when he picked that photograph, it was because that was “as close as [he] could get” rather than that he was positive that it was the man at McDonald’s. Richards recalled that he had seen a lineup in the courtroom and had been unable to identify anyone from that lineup; he did not recall that appellant had been in that lineup. He stated that he could not identify anyone in that lineup because the man at McDonald’s had a beard.

Detective William Thieman testified, substantially corroborating Richards’ testimony as to his identification of the note. His testimony as to Richards’ photographic identification varied from Richards’ own testimony in that, according to the officer, Richards was certain as to the identification.

“A. Mr. Richards was standing in the back room of the McDonald’s Restaurant, and he took the photographs and he viewed them as he stood there, looking at them one at a time, placing the top one on the bottom. He stopped at photograph number two. He continued on at photograph number four and I observed and noted in my notes an obvious physiological change in that his breathing became deep, his hands visibly shaking. He looked through the remaining photographs and he returned to photograph number two and said that he thought that was the man. I then asked him, ‘Is that the man who passed you the note while you were working?’ He said yes, it was. I then asked him had he ever seen this man in the restaurant other than at the time he passed the note, and he said no, he did not. I then asked him if he could testify with competency in court that that is the man who passed him the note earlier. He said yes, he could. I then had him initial the back of the photograph.”

Appellant contends that there was no assault as that term is defined in Williams v. State, 4 Md. App. 643, 244 A.2d 619 (1968), cert. denied, 252 Md. 734 (1969):

“Any attempt to apply the least force to the person of another constitutes an assault. The attempt is made whenever there is any action or conduct reasonably tending to create the apprehension in another, that the person engaged therein is about to apply such force to him. It is sufficient that there is an apparent intention to inflict a battery and an apparent ability to carry out such intention.” Id. at 647.

He argues that the evidence quoted above did not in fact and could not reasonably have tended to create an apprehension in Miss Hickey that she would be the victim of force. As to the first proposition, she testified that she was scared; this is, of course, sufficient to support a finding she was scared. The testimony that the appellant put his hand in his pocket and “pointed it up to me and said, ‘Do you want to die?’ ” is sufficient for the finder of the facts to conclude that the victim, Miss Hickey, was reasonably in fear that force would be used against her. Bland v. State, 236 Md. 652, 205 A.2d 237 (1964), cert. denied, 381 U.S. 946, 85 S. Ct. 1791 (1965).

Secondly, the appellant argues that his criminal agency was not established. The police officer testified that Jeff Richards’ out of court identification was positive; a positive out of court identification is sufficient to support the conviction, there being ample other evidence to connect the person identified with the actual crime. Cousins v. State, 18 Md. App. 552, 308 A.2d 692, cert. denied, 270 Md. 738 (1973).

II. Evidence of Other Crimes

Appellant contends that the trial judge committed error in admitting the testimony of Jeff Richards over his objection on the basis the evidence of the other crimes as well as the evidence of the defendant’s involvement must be clear and convincing under Cross v. State, 282 Md. 468, 386 A.2d 757 (1978). We do not read Cross as requiring that evidence of the other crime must be clear and convincing. The only requirement is that the defendant’s involvement be clear and convincing. If the testimony of the detective is accepted, then that requirement would be sufficiently definite to justify the trial judge in admitting the evidence. The record shows that the trial judge carefully reviewed the evidence both as to its probative value and as to its possible prejudice and concluded that the need for the evidence outweighed its possible prejudice as evidence of another crime. See also Ross v. State, 276 Md. 664, 350 A.2d 680 (1976), Simms v. State, 39 Md. App. 658, 388 A.2d 141, cert. denied, 283 Md. 738 (1978).

Appellant also argues, somewhat incomprehensibly, that there was no crime committed at McDonald’s and somehow that would preclude the admission of Richards’ testimony under the other crimes exception. The evidence tended to show that the person at McDonald’s was the same person who committed the crime at Garrison’s Toy Store; it was, therefore, relevant. If the affair at McDonald’s did not amount to a crime, there would have been no reason to exclude it.

III. Voir Dire Examination

Appellant contends that the trial judge committed error in not requiring his presence at a bench conference at which a juror was examined as required by Rule 724 a, absent a waiver. Bunch v. State, 281 Md. 680, 381 A.2d 1142 (1978). The record is not clear as to whether or not the appellant was present at the bench conference. We, therefore, apply the rule of Haley v. State, 40 Md. App. 349, 392 A.2d 551 (1978), cert. denied, 284 Md. 744 (December 15, 1978), in which we said:

“Although the appellant was present in the courtroom when the subject bench conferences took place, the record does not show whether or not he was present at the bench during those discussions. We cannot and do not presume he was present from a silent record, but we can and do require, as a matter of state procedure, that the complete facts be brought out in post conviction procedures. We followed this procedure in Green v. State, 23 Md. App. 680, 683, 329 A.2d 731 (1974), cert. denied, 274 Md. 728 (1975). Compare Bunch v. State, supra, and Redman v. State, supra, where the records on direct appeal were clear that the accused was not present at critical times. See also, State v. Zimmerman, 261 Md. 11, 273 A.2d 156 (1971).
“The record does not indicate whether or not the appellant waived his rights under Rule 724. This, too, can be determined in post conviction procedures as set out above, if it is first determined that appellant was not present at the bench conferences.” Id. at 354-55.

IV. Motion in Limine

Appellant filed a motion in limine to preclude the State from offering into testimony as impeachment evidence his conviction nine years earlier for distribution of heroin. The trial judge ruled that this evidence would be admissible. Appellant did not testify, alleging that the reason he failed to do so was because of this ruling of the trial court. We do not reach the question under Md. Rule 1085. We have reviewed the question of whether a motion in limine was sufficient to support an appellate review when the evidence is not later actually offered in trial, in two recent cases: Vergie M. Lapelosa, Ind. v. Cruze, 44 Md. App. 202, 407 A.2d 786 (1979) and Ory v. Libersky, 40 Md. App. 151, 163, 389 A.2d 922, cert. denied, 283 Md. 737 (1978). In those cases we reviewed the decisions around the country and found none which recognized a ruling on a motion in limine as sufficient to constitute reversible error. We adhere to that rule. Although it is entirely possible that the ruling of the trial judge motivated the appellant not to testify, it is also possible that he had no intention of testifying regardless of the ruling of the trial court on the motion. It is also possible that had appellant testified the State would have changed its position and not used the conviction. We do not rule on academic questions.

We do not regard New Jersey v. Portash, 440 U.S. 450, 99 S. Ct. 1292, 59 L. Ed. 2d 501 (1979), as in anyway contrary to our position. In that case the accused declined to testify on the basis that the trial judge ruled on a pretrial motion that he would permit the use of prior testimony before a grand jury as impeachment if the accused testified. He did not testify and was convicted. The New Jersey appellate division .reversed the conviction and the New Jersey Supreme Court denied the State’s petition for certification of an appeal. The Supreme Court reviewed the decision and affirmed the reversal, holding that the State’s argument that the issue presented by Portash was abstract and hypothetical because he did not in fact become a witness was improper because both the trial court and the New Jersey appellate court had specifically ruled on the question. It did nothing to overrule the familiar rule that the federal courts, including United States Supreme Court, respect State procedures in reviewing State proceedings. The failure to present a federal question in conformance with State procedure bars review by the federal courts, so long as the State has a legitimate interest in enforcing its procedural rule. Michigan v. Tyler, 436 U.S. 499, 98 S. Ct. 1942, 1951, 56 L. Ed. 2d 486 (1978).

Judgment affirmed.

Appellant to pay the costs.


author: Wilner, J.,

text:
    JOHN ALEXANDER HEBB v. STATE OF MARYLAND
    [No. 574,
    September Term, 1979.]

      Decided February 7, 1980.

    The cause was submitted on briefs to Moore, Wilner and Couch, JJ.

      Submitted by John W. Pfeifer, Assigned Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Stephen Rosenbaum, Assistant Attorney General, and Neal R. Myerberg, State’s Attorney for St. Mary’s County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

No one likes to be unjustly accused — certainly not 13-year old Elizabeth B. When her mother scolded her for something her older brother had done, Elizabeth got mad — mad enough to run away. She left on the rainy evening of December 27, 1978, by climbing out her bedroom window. As she trudged down the road later that evening, a man stopped and offered her a ride. She accepted. That was a mistake. The man raped her.

Appellant stands convicted of that rape; but he too feels unjustly accused. He has therefore appealed his convictions of second degree rape and assault that were entered up by a jury in the Circuit Court for St. Mary’s County, raising the following three issues:

“1) The Court erred in applying the res gestae rule to several out-of-court statements made by the victim.
2) There was not sufficient evidence to support verdict of guilty to charge of second degree rape.
3) The Court erred in not granting a mistrial upon discovering that Jury had taken a book not in evidence into Jury room.”

For reasons shortly to be explained, we agree with appellant’s third contention. Reversible error was committed when the court permitted the jury’s verdict to stand after learning that the jury had taken into the jury room, and had apparently considered in arriving at its verdict, a book that was not in evidence — a book entitled Maryland Criminal Jury Instructions and Commentary. The judgments will therefore be vacated.

In order to determine whether a retrial is permissible, we must also consider the issue of evidentiary sufficiency raised by appellant. (Mitchell v. State, 44 Md. App. 451 (1979)). But our resolution of the third issue does make it unnecessary to consider the hearsay question presented in appellant’s first complaint.

(1) The Forbidden Book

No one seems to know for certain how the jury managed to obtain a copy of the jury instruction manual. It was evidently a mistake, there being some suggestion that one of the lawyers may have laid the book on a table near the various exhibits in the case, and it simply was handed to the jury along with the exhibits. No one knew that the jury had the book until after the verdict was rendered and the jury was discharged. Defense Counsel then observed the foreman hand the book, along with the other exhibits, to the bailiff. Counsel immediately brought this to the court’s attention and moved for a mistrial. This occurred at about 8:45 p.m.

The court reserved ruling on the motion until the next afternoon. It then announced:

“... Well, it was unfortunate that it was taken in there. The Court usually cautions attorneys to check over the evidence prior to the jury going in there or prior to the bailiff taking it to them. Of course, this was not done.
“For the record, I spoke with three of the jurors that were on that panel yesterday this morning and would have done it in the presence of the State’s Attorney and the defense attorney, however, it was necessary that the defense attorney be away, and that opportunity was not available. So, rather than holding them up, I did interview the three jurors, who stated, and all three were in agreement, that the only thing that that book was used for was to read the definition of assault and battery. Well, the Court gave them instruction on what assault and battery was and the instruction in the book maybe amplified that definition a bit. So, I will agree with the State that if it’s error, it certainly was a harmless error, and I cannot see in any way how that could have influenced the jury verdict. So, for the reasons stated, the motion will be denied.”

The State concedes, as indeed it should, that what occurred here was error. The Maryland Rules, in particular Rules 757 e and 758, specify what may be taken into the jury room; and the book in question here was not such an item. Its very presence in the jury room was improper.

Conceding the error, the State nevertheless seeks to sustain the judgments by asserting that the error was nonprejudicial and therefore harmless. See Wilhelm v. State, 272 Md. 404, 429 (1974). The rationale offered in support of this argument is that (1) the court “ascertained” that the book was only used to determine the definition of assault and battery, and (2) even if the definition of that offense stated in the book was dissimilar to the instruction actually given, appellant was not prejudiced because the assault conviction was merged into the rape conviction. The error, in other words, has not really affected appellant’s life, liberty, or property because it played no role in his conviction for second degree rape.

The State’s argument is not a persuasive one.

The point at issue came before the trial court, and comes to us, in a somewhat unusual posture in that the error, though easily preventable, was not discovered and could not reasonably have been discovered until after the jury had already completed its deliberations and arrived at its verdicts. Unlike the normal context in which a motion for mistrial is made and considered, there was no opportunity here for the court to correct or ameliorate the error and thus to judge its potential for prejudice prospectively in the light of possible corrective measures. This is a significant distinction — one that requires the most judicious exercise of the trial court’s discretion and the most careful review by us of how that discretion was in fact exercised. If there was a reasonable and demonstrable potential for prejudice, that potential was not offset by any curative action, and thus stood undiminished before the jury in its consideration of appellant’s guilt and his fate.

The major premise underlying the State’s suggestion of harmless error is the trial court’s “ascertainment” that the book was used only in connection with the definition of assault and battery. Although appellant has not seen fit to complain about the manner in which the court came to that conclusion, and we need not, therefore, consider whether that alone would justify a reversal, that process is nevertheless highly relevant in terms of whether the court properly exercised its discretion; and we may consider it in that context.

The court made its determination that the error was limited, and therefore nonprejudicial, solely upon its ex parte private conversation with three unidentified jurors. Two comments are in order. First, judges have no business questioning jurors in private about what they did or did not consider in reaching their verdict, and then using the information so secretly gained in deciding a motion for mistrial (or new trial). Although there is no evidence that the judge in this case acted from any improper motive, it is obvious upon even the slightest reflection that such private conversations are so inherently pregnant with the potential for abuse and prejudice, for intimidation of jurors and corruption of the judicial process, that they are to be scrupulously avoided.

More directly in point here, however, is the fact that such a conversation with three of twelve jurors — with neither the three jurors identified nor the full content of the conversation recorded or revealed — is hardly a rational basis upon which to conclude that the error was limited to consideration of the assault count and was therefore harmless. The record does not indicate who the three jurors were, much less whether they were in a position to know if other jurors perused the book and if so what portions of it they read, or how they used the information gained. If, as the court itself said, this was the basis for the court’s conclusion, the record before us fails to indicate adequate evidence in support of it.

Notwithstanding the flawed process used by the court, however, and the consequential doubt as to its expressed findings, prejudice is not simply to be presumed. Indeed, the Court of Appeals has held more than once that “[t]he decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant." (Emphasis supplied.) Wilhelm v. State, supra, 272 Md. at 429. To assist in properly determining whether there has been such prejudice, we must look to the nature of the error, in this case the forbidden book.

The Maryland Criminal Jury Instructions and Commentary represents an attempt to devise standard jury instructions covering virtually every aspect of a criminal case. It contains suggested instructions, each accompanied by a discussion of relevant cases and legal commentary, with respect to each of the major substantive offenses, including the various sex offenses, and to various other procedural or penumbral matters such as mistaken identity (§ 5.10), intent (§§ 3.01-3.06), credibility (§ 2.06), child witness (§ 2.04), and even the “Allen” charge (§ 1.13). As Judge Digges, of our Court of Appeals, observed in a Foreword to the book, it is a worthwhile publication intended to serve the lawyer as a tool in preparing suggested instructions. But, at the same time, it is a treasurehouse of confusion and misinformation if given to a jury for its perusal without any constraint.

The fact is that the instructions actually given to the jury as to both assault and rape, though not necessarily erroneous, did differ significantly from those contained in the manual. If the jury had read all or any part of § 4.31 (Carnal knowledge) or § 4.32 (Rape), as they appear in the bound edition, it would have been hopelessly confused as to what was really before it. The book itself, under the circumstances of this case, establishes not only the potential for prejudice but, if any member of the jury read virtually any part of it, the likelihood of such prejudice. Whenever the jury considers material not in evidence, or “instructions” never given by the court or argued by counsel, prejudice looms — especially so when the material is either irrelevent or inconsistent with the instructions actually given by the court.

Had it been properly established that the book was never in fact consulted by any juror for any purpose — that it lay untouched and unread — the court may reasonably have found a lack of prejudice. But, from what the three jurors apparently said, the book was consulted, at least with respect to assault and battery. We can accept their unrecorded word for that much, but for no more in light of this record. We are left, therefore, with the real possibility that other jurors may have looked beyond the sections on assault and battery, and with the knowledge that if they did, confusion and prejudice was not only possible, but likely. The problem, therefore, is not limited merely to the assault charge, and is not resolved by a merger of the two convictions. It is clear to us that the error was not harmless beyond a reasonable doubt, and that the trial court therefore committed clear error and abused its discretion in denying the motion for mistrial.

(2) Evidentiary Sufficiency

Appellant is not so lucky with respect to his second contention. We find that the evidence was more than sufficient to sustain his conviction for second degree rape — a reasonable jury could rationally have found his guilt beyond a reasonable doubt.

Md. Ann. Code art. 27, § 463 (a) (3) defines as second degree rape “vaginal intercourse with another person ... who is under 14 years of age and the person performing the act is at least four years older than the victim.”

Elizabeth, who, as noted, was 13 at the time, identified appellant as the man who picked her up. She said that he pulled off to the side of the road, took off her clothes, started pulling off his clothes, and got on top of her. He held her hands behind her back. She was frightened and began crying. She had never had intercourse before, and she felt pain. When appellant finished, she washed herself off with a rag.

Dr. Jorge Del Aguila, a gynecologist, examined Elizabeth at the hospital the next day — December 28. He testified that she had a lacerated hymen, accompanied by bleeding and swelling, all of which indicated to him that “there was probably some kind of mechanical trauma which had been happening probably very recently.” When Elizabeth returned home the next day, she told her mother and a police offficer that she had been raped. There was evidence that appellant was 25 years old at the time of the occurrence, making him, of course, more than four years older than Elizabeth.

This was enough to justify the conviction, and thus to permit a retrial.

Judgments reversed; case remanded to Circuit Court for St. Mary’s County for retrial; costs shall not be reallocated as part of the judgments of this Court pursuant to Maryland Rule 1082 f.

      . Elizabeth returned home the next morning. Her mother had already called the police, who were at the home when she arrived. Officer Cox was permitted to testify that Elizabeth identified her assailant by the nickname “Applejack.” Trooper Vail repeated the description of “Applejack” given to him by Elizabeth. Finally, Elizabeth's mother was permitted to state that, almost immediately upon Elizabeth's return, she told her mother she had been raped. These are the hearsay declarations challenged by appellant. The problem is that Elizabeth testified to all of this herself, without objection. See identified appellant by the nickname “Ajpplejack,” and admitted telling her mother that she had been raped. Given the record as a whole, we would be inclined to conclude that, in light of Elizabeth’s direct testimony, any error was either waived or was harmless beyond a reasonable doubt. See Peisner v. State, 236 Md. 137 (1964), cert. den. 379 U.S. 1001 (1965).

      . Rule 757 e provides that “with the approval of the court [the jury] may take into the jury room those instructions or parts of instructions which have been reduced to writing.” Rule 758 permits, again with court approval, “all exhibits which have been admitted into evidence” and relevant parts of the charging document. The jurors may take with them any notes they made during the trial; and, upon specific request, the court may allow portions of the transcribed testimony or other evidence to be taken to the jury room. The book in question here fell into none of these categories; nor, of course, was there any court approval for the jury to take the book.

      . The court’s only instruction as to assault was as follows: “And assault and battery is an offer to do bodily harm and when it’s in your power to do the bodily harm. The battery is the consummation of that assault. In other words, if I in a menacing manner with intention to hurt you, if I swing on you and you are close enough that I may hit you, that is the assault. If I come all around and clip you on the chin and hit you, then that is the battery....” By way of comparison, the instructions and commentary in the manual take up four pages. See §§ 4.11, 4.12. The differences are even greater with respect to the rape charge. The book in question was published in 1975, and does not, in its bound edition, take account of the significant changes made in the sex offense laws in 1976 and 1977. Indeed, second degree rape — the crime charged to appellant — is not mentioned or included in the suggested standard instructions. The closest relevant “crime” discussed in the book is carnal knowledge of a female under 14, formerly proscribed by art. 27, § 462. That section, and the crime as stated therein, was repealed, however, in 1977. The offense, with certain modifications, now constitutes second degree rape under current § 463. The record before us does not indicate whether the jury had only the bound edition of the book or also a pocket supplement noting the recent changes in the law.


text:
    LARRY ANDERSON v. J. BARRY MEINSTER, Personal Representative of the Estate of Michael A. Molina et al.
    [No. 503,
    September Term, 1979.]

      Decided February 8, 1980.

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

      Robert C. Verderaime, with whom were Samuel Blibaum, Henry Greenberg and Verderaime & DuBois, P.A. on the brief, for appellant.

      Jack L. Hardwick, with whom were Richard Lazer Hillman, County Solicitor for Anne Arundel County, Robert C. Wilcox, Assistant County Solicitor and Hardwick, Trípoda & Harris on the brief, for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The Circuit Court for Anne Arundel County sustained a demurrer without leave to amend to the second amended declaration of Larry Anderson, the appellant, on the basis that a police officer, the appellee David Charles Harp, was immune from suit because of governmental immunity. In so ruling the trial judge was in error because a police officer’s qualified immunity for torts is not available on demurrer. See Carr v. Watkins, 227 Md. 578, 177 A.2d 841 (1962), in which the Court said:

"The Montgomery County police officers are in a somewhat different position. Maryland has not adopted the rule laid down in the Barr[] case but, on the contrary, this Court has shown reluctance to extend absolute privilege or immunity from liability for torts to government officers of a higher rank than these defendants. Walker v. D'Alesandro, 212 Md. 163; Maurice v. Worden, 54 Md. 233; see also Brush-Moore Newsp. v. Pollitt, 220 Md. 132, 139. It has been felt that a qualified privilege is sufficient, so that immunity is conditioned upon absence of malice (unlike the situation where there is absolute privilege) and also upon action within the scope of the actor’s duties and authority. Walker v. D'Alesandro, supra; 3 Davis, Administrative Law Treatise, Secs. 26.01-26.05; Prosser, Torts (2d ed.), Sec. 109, pp. 780-4; Comment, 70 U. Chi. L. Rev. 677.
"The matters of malice and the scope of their duties must be determined as to Watkins and Whalen from the testimony presented at the trial since a defense of qualified privilege is not available on demurrer in Maryland. Pollitt v. Brush-Moore Etc., Inc., 214 Md. 570; Walker v. D’Alesandro, supra.” Id. at 585-86 (footnote omitted).

See also, DiBlasio v. Kolodner, 233 Md. 512, 521, 197 A.2d 245, 249 (1964) and Nistico v. Mosler Safe Co., 43 Md. App. 361, 368 n.3, 405 A.2d 340, 344 n.3 (1979).

Judgment reversed.

Case remanded for further proceedings.

Costs to abide final result.

      . In Barr v. Matteo, 360 U.S. 564, 569, 3 L.Ed.2d 1434, the Supreme Court held that the acting director of the Office of Rent Stabilization, a federal agency, was entitled to an absolute privilege in an action of libel.


author: MacDaniel, J.,

text:
    KATHLEEN L. BISHOP v. HOLY CROSS HOSPITAL OF SILVER SPRING et al.
    [No. 584,
    September Term, 1979.]

      Decided February 8, 1980.

      The cause was argued before Thompson, Couch and MacDaniel, JJ.
    Submitted on brief by Melvin L. Schneider and James E. Davitt for appellant.

      David A. Levin, with whom was Alan R. Siciliano on the brief, for appellee Holy Cross Hospital. Albert D. Brault, with whom were Brault, Graham, Scott & Brault on the brief, for other appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

The appellant, Kathleen L. Bishop, filed a Declaration in the Circuit Court for Montgomery County, alleging that certain acts by the appellees, Holy Cross Hospital of Silver Spring and John B. Umhau, Jr., were medical malpractice and that, as a proximate result of those acts, she sustained certain injuries. The appellant sought punitive damages in addition to compensatory damages.

Both appellees filed Motions Raising Preliminary Objections. They contended that the circuit court did not have jurisdiction to consider the appellant’s claim because the appellant had failed to present her claim to the Health Claims Arbitration Office, as required by this State’s Health Care Malpractice Claims Statute (§§ 3-2A-01 through 3-2A-09 of the Courts Article of the Annotated Code of Maryland). A hearing was held on April 11, 1979, and the trial judge sustained the motions.

For the purposes of this case, the applicable statutory sections are as follows. Section 3-2A-02 provides:

"§ 3-2A-02. Exclusiveness of procedures.
(a) Claims and actions to which subtitle applicable. All claims, suits, and actions, including cross claims, third-party claims, and actions under Title 3 Subtitle 9 of this article, by a person against a health care provider for medical injury allegedly suffered by the person in which damages of more than $5,000 are sought are subject to and shall be governed by the provisions of this subtitle. An action or suit of that type may not be brought or pursued in any court of this State except in accordance with this subtitle. An action in which damages of $5,000 or less are sought is not subject to the provisions of this subtitle.” (Emphasis added.)

Section 3-2A-05 provides, in part:

"§ 3-2A-05. Arbitration of claim.
(d) Determinations. — The arbitration panel shall first determine the issue of liability with respect to a claim referred to it. If the arbitration panel determines that the health care provider is not liable to the claimant or claimants the award shall be in favor of the health care provider. If the arbitration panel determines that a health care provider is liable to the claimant or claimants, it shall then consider, assess, and apportion appropriate damages against one or more of the health care providers that it has found to be liable.” (Emphasis added.)

Section 3-2A-06 provides for judicial review of any claims.

The appellant now argues that the trial court erred in ruling that it did not have jurisdiction over her claim. She contends that the Health Claims Arbitration Panel has no authority to award punitive damages and that, therefore, she had no adequate administrative remedy and was entitled to bring her suit directly in the circuit court. We disagree.

The principles of statutory construction which must guide us are clear. In Greenbelt Consumer v. Acme Mkts., 272 Md. 222, 226 (1974), the Court of Appeals said:

". . . the cardinal rule requires that the legislative intent be discovered and carried out. This purpose must be discerned from the words the Legislature' chose to employ unless there exists an ambiguity or obscurity, in which case we need to look elsewhere. M.T.A. v. Balto. Co. Revenue Auth., 267 Md. 687, 298 A.2d 413 (1973). . . .”

In Attorney General v. Johnson, 282 Md. 274, appeal dismissed, 439 U.S. 805 (1978), the Court of Appeals discussed the basic provisions of the Health Care Malpractice Claims Statute. The Court said at 279-80:

"The arbitration panel determines whether the health cate provider is liable to the claimant and if so the extent of the damages, and incorporates in its award an assessment of costs, including arbitrators’ fees, § 3-2A05 (d) <& (e); if no party rejects the award, it becomes final and binding, is filed by the director with the appropriate circuit court, and when confirmed by that court constitutes a final judgment. § 3-2A05 (h). Neither party, however, is in any way bound to accept the award; it may be rejected for any reason within ninety days. § 3-2A06 (a). If a party desires to contest the decision of the panel, he must file an action in the appropriate court during the ninety-day period to nullify the award, § 3-2A06 (b) & (f), and jury trial may be elected by either party. § 3-2A06 (b). Any contention that an award should be vacated on the ground of corruption, fraud, partiality or the like, seeMd. Code (1974), § 3-224 (b) (l)-(4) of the Courts Article, is to be decided by the court prior to trial. § 3-2A06 (c). Unless the award is thus vacated, it is admissible as evidence at the trial and presumed to be correct, with the burden of proving the contrary falling on the party rejecting it, § 3-2A06 (d); should the award be vacated, 'trial of the case shall proceed as if there had been no award.’ § 3-2A06 (c). In addition, attorneys’ fees are subjected to the approval respectively of the arbitration panel and the court. § 3-2A07.” (Footnotes omitted.)

As the Court of Appeals noted at 282 Md. 307-08 and 312-13, supra, the apparent purpose of the legislation was to encourage early settlement or voluntary dismissal of claims via the "screening” action of the nonbinding arbitration panel. Hopefully, this would reduce the cost of the claims and, consequently, the cost of medical malpractice insurance. See also "Medical Malpractice Reform: A Preliminary Analysis,” 36 Md. L. Rev. 489 (1977).

We hold that, consistent with the above statutory purpose, the specific language of the Health Care Malpractice Claims statute permits the arbitration panel to award punitive, as well as compensatory, damages. The term "damages” when unmodified can include any type of damages, whether compensatory, punitive, nominal, or otherwise. See Black’s Law Dictionary 351-52 (5th ed. 1979). Thus, the plain meaning of the term "appropriate damages” in § 3-2A-05(d) is any type of damages which the arbitration panel, in its wisdom, chooses to award. In addition, the provision in § 3-2A-02 that "all claims” (in which damages of more than $5,000 are sought) are to be governed by the statute indicates that the term "appropriate damages” is to be given this broad meaning.

Because, therefore, the appellant has an adequate administrative remedy under the Health Care Malpractice Claims statute, she is required to exhaust this remedy, as required by the statute, before she may invoke the jurisdiction of the circuit court. See Poe v. Baltimore City, 241 Md. 303, 311 (1966).

Judgment affirmed.

Costs to be paid by appellant.