text:
    DONALD LEROY THOMAS v. STATE OF MARYLAND
    [No. 1331,
    September Term, 1975.]

      Decided July 29, 1976.

    The cause was argued before Gilbert, C. J., and Morton, Powers and Davidson, JJ.

      Robert C. Heeney and W. Shepherdson Abell, Assigned Public Defenders, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and William J. Hickey, Jr., Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This Court, in Thomas v. State, 29 Md. App. 45, 349 A. 2d 384 (1975), affirmed the convictions of Donald Leroy Thomas for (1) assault with intent to murder Gloria Jean Stewart and (2) the use of a handgun in the commission of a felony. The instant case arises, like “the maiden phoenix,” out of the ashes of the charge of assault with intent to murder because Gloria Jean Stewart died eleven months and six days after her initial wounding by appellant. Appellant was promptly indicted by the Grand Jury for Montgomery County for the murder of Miss Stewart. Appellant moved to dismiss the indictment on the ground that any prosecution was barred by the double jeopardy clause of the Constitution of the United States as made applicable to the several States by the decision of the Supreme Court in Benton v. Maryland, 395 U. S. 784, 89 S. Ct. 2056, 23 L.Ed.2d 707 (1969). The hearing judge dismissed the appellant’s contention. A petit jury, presided over by Judge John J. Mitchell, in the Circuit Court for Montgomery County, found the appellant guilty of murder in the second degree. Judge Mitchell imposed a sentence of ten (10) years upon appellant, but the judge directed that the sentence was to be served concurrently with any sentence appellant was then serving.

Little need be said about the facts from which this appeal had its genesis. The details of the crime are set forth in Thomas v. State, supra at 47-48, so we shall confine our discourse to the applicable law, referring only to such facts as may be pertinent to the particular explication of the five issues raised by appellant.

I.

“Reversible error was committed where the trial judge denied the appellant’s motion to dismiss the indictment.”

One of the basic tenets of American Law is that no man ought to be compelled to answer twice for the same offense. Our forefathers adopted, as part of the “Bill of Rights,” a constitutional safeguard against double jeopardy when they provided that no person shall “... be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const, amend. V. While Maryland did not place a similar proviso within its Constitution or Declaration of Rights, it has, nevertheless, continuously applied the common law prohibition against double jeopardy even before Benton v. Maryland, supra, extended the federal rule against double jeopardy to the States.

The stating of the ban against double jeopardy is simple. Its application to given facts becomes more complex. See, e.g., Cousins v. State, supra note 3; Thomas v. State, supra note 3. See also Ashe v. Swenson, 397 U. S. 436, 90 S. Ct. 1189, 25 L.Ed.2d 469 (1970), and Bartkus v. Illinois, 359 U. S. 121, 79 S. Ct. 676, 3 L.Ed.2d 684 (1959), in which the Court upheld separate prosecutions by the federal government and the State of Illinois even though both prosecutions arose from the same facts.

Judge Eldridge, in Cousins, an in depth discussion of double jeopardy, noted that some States apply the same event or same transaction test for determining the existence, vel non, of former jeopardy while others utilize the required evidence test which is the common law standard.

Appellant would have us jettison the required evidence test in favor of the same transaction test, but, as Judge Eldridge pointed out in Cousins, Maryland is not free “... to interpret the Fifth Amendment guarantee against double jeopardy as embodying the same transaction test in multiple trial situations.” 277 Md. at 394. Oregon v. Hass, 420 U. S. 714, 95 S. Ct. 1215, 43 L.Ed.2d 570 (1975), makes it vividly clear that a State is not at liberty to interpret Federal Constitutional provisions more broadly than has the Supreme Court. 420 U. S. at 719. See also Thomas v. State, 26 Md. App. 232, 238, 337 A. 2d 137, 140 (1975), rev’d on other grounds, 277 Md. 257, 353 A. 2d 240 (1976). Judge Eldridge, in Cousins, went on to state for the Court that:

“Maryland has never recognized a common law right to have joined at one trial all offenses arising from the same transaction. While recognizing that common law principles prohibit multiple prosecutions and multiple punishments for the same offense, Gilpin v. State, ... [142 Md. 464,] 466, 121 A. 354, [355 (1923),] this Court has rejected the contention that offenses are the same for double jeopardy purposes because they arise from the same criminal act or transaction.” 277 Md. at 395.

In this State, the proper test for determining whether a prior acquittal or conviction is a bar to subsequent prosecution is the required evidence rule. That rule of law, simply stated, is:

“The offenses are not the same, though growing out of the same transaction, when one differs in all its elements from the other, or when the evidence adequate to one does not relate to, or support, the other.” Gilpin v. State, 142 Md. at 467 (emphasis added).

The required evidence test is applied by a majority of the States, Cousins v. State, supra at 392, and is employed by the Supreme Court of the United States. Morgan v. Devine, 237 U. S. 632, 641, 35 S. Ct. 712, 715, 59 L. Ed. 1153, 1156 (1915); Gavieres v. United States, 220 U. S. 338, 341-342, 31 S. Ct. 421, 422, 55 L. Ed. 489, 490 (1911).

Patently, a necessary element of the required evidence to sustain a murder charge is that the victim died. An assault with intent to murder possesses all the elements of murder except the death of the victim. Obviously, then, the two offenses are not the same even though they may have grown out of the same transaction.

We have been directed to no Maryland case, nor have we found one precisely on point with the matter now before us. Cases of other courts that have come to grips with similar situations and upheld convictions in the face of a plea of double jeopardy are legion.

In Diaz v. United States, 223 U. S. 442, 32 S. Ct. 250, 56 L. Ed. 500 (1912), the Supreme Court considered a case arising from the Philippine Islands, wherein Diaz had been convicted of assault and battery and fined fifty pesetas. The victim expired 26 days after the assault, apparently as a result of the injuries sustained in the assault, and Diaz was brought to trial on a charge of murder. He interposed a plea of former jeopardy. The plea was rejected by the Philippine Courts (15 Philippine, 123), and the case was appealed to the Supreme Court of the United States. That body likewise rejected the double jeopardy argument saying:

“The homicide charged against the accused in the court in the first instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.” 223 U. S. at 448-49.

More pointedly, the Supreme Court of Pennsylvania, in Commonwealth v. Ramunno, 219 Pa. 204, 68 A. 184 (1907), disallowed the very claim appellant makes. In that case, Ramunno had been convicted of assault with intent to murder and was sentenced to imprisonment for a term of seven years. Four days following the imposition of sentence upon Ramunno, the victim died from the effects of the assault upon his person. Ramunno was then charged with the murder of the assault victim and was convicted of first degree murder. The Pennsylvania court held that the offenses were separate and apart. Ramunno could not have been tried for murder until the death of the victim, but the law was not required to postpone indefinitely the trial of Ramunno on the assault charge on the mere contingency that the victim might die as a result of the assault. When Ramunno was initially tried, the victim was still alive, and assault with intent to murder was the only crime he had committed as of that time. In order for the plea of autrefois convict to be successful, the subsequent prosecution must be “.. . for the same identical act ....” 4 W. Blackstone,. Commentaries on the Laws of England § 336 (W. Lewis-1897). See also Southworth v. State, 98 Fla. 1184, 125 So. 345 (1929) (assault and robbery, murder); Centers v. Commonwealth, 318 S.W.2d 57 (Ky. 1958) (armed robbery, murder); State v. Littlefield, 70 Me. 452 (1880) (assault and battery, murder); Carmody v. Seventh Judicial District Court, 81 Nev. 83, 398 P. 2d 706 (1965) (robbery, murder); Curtis v. State, 22 Tex. Ct. App. R. 227, 3 S. W. 86 (1886) (aggravated assault and battery, murder); Stewart’s Case, 5 Irv. 310; 1 Bishop on Criminal Law § 1059 (9th ed. J. Zane & C. Zollmann 1923).

II.

“The trial judge abused his discretion in admitting the prior recorded testimony of Gloria Jean Stewart at the [murder] trial.”

In the other of his two principal thrusts, appellant zeroes in on the admission into evidence of the sworn testimony of the victim as recorded at the assault with intent to murder trial. Appellant vigorously avers that Miss Stewart’s prior testimony should not have been received into evidence because he was denied the right to confront the witness against him.

The testimony of Miss Stewart that appellant sought to exclude was that she saw the appellant shoot her after he had exclaimed, “.. . I got your ass now.” Earlier, the appellant had told the victim that “ ... if he couldn’t have me, there wasn’t nobody else going to have me, and he would rather see me dead.” Of course, that testimony, accompanied by the victim’s subsequent death, manifested a sound basis for the murder indictment.

The general rule with respect to the use of prior sworn testimony was set forth by the Court of Appeals in Contee v. State, 229 Md. 486, 184 A. 2d 823 (1962), cert. denied, 374 U. S. 841 (1963). Speaking through Judge Henderson (later Chief Judge), the Court answered a challenge to the admission of testimony given at a prior trial by a witness who later became incompetent. The Court said:

“It is well settled that testimony taken at a former trial may be admitted, if it be shown that the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, or that some other circumstance exists which shows that the witness who gave the testimony at the former trial cannot be procured as a witness at the second trial. This general rule was stated in Hendrix v. State, 200 Md. 380, 387, [90 A. 2d 186, 189 (1952),] and in somewhat different form in Bryant v. State, 207 Md. 565, 587 [, 115 A. 2d 502, 512 (1955)]. See also Marshall v. Haney, 9 Gill. 251, 257; Rogers v. Raborg, 2 G. & J. 54, 60; Bowie v. O’Neale, 5 H. & J. 226, 234. For a discussion of the principles involved and the authorities elsewhere, see 5 Wigmore, Evidence (3rd ed.) § 1406 et seq.; 2 Jones, Evidence (5th ed.) § 313; 2 Wharton, Criminal Evidence (12th ed.) § 479; Notes 15 A.L.R. 495; 79 A.L.R. 1392; 122 A.L.R. 425; 159 A.L.R. 1240. The writers and authorities all agree that where there was an opportunity to cross-examine the witness in the former trial, there is no violation of the right to be confronted with the witnesses against the accused, under Art. 21 of the Maryland Declaration of Rights or under the Due Process clause of the Fourteenth Amendment to the Federal Constitution. Since there is no constitutional right involved, there has been a discernible tendency, we think, to liberalize the rule, which was first applied ex necessitate in case of death.” 229 Md. at 491.

Appellant asseverates, apparently as an alternative to his first issue, that the crimes, murder and assault with intent to murder, are not so substantially identical as to permit the use, in this case, of Miss Stewart’s prior testimony. We, however, have a different view.

McCormick’s Handbook of the Law of Evidence § 257 (2d ed. E. Cleary 1972), states:

“... [Insistence upon precise identity of issues, which might have some appropriateness if the question were one of res judicata or estoppel by judgment, are out of place with respect to former testimony where the question is not of binding anyone, but merely of the salvaging, for what it may be worth, of the testimony of a witness not now available in person. Accordingly, modern opinions qualify the requirement by demanding only ‘substantial’ identity of issues.
It follows that neither the form of the proceeding, the theory of the case, nor the nature of the relief sought needs be the same.... Thus, in criminal cases where the first indictment charges one offense, e.g., robbery, and the second, another distinct offense, such as murder of the person robbed, it is usually considered sufficient that the two indictments arise from the same transaction.” (Footnotes omitted).

See also State v. Swidden, 62 S. D. 208, 212-14, 252 N. W. 628, 630-31 (1934).

In 5 J. Wigmore, Evidence in Trials at Common Law § 1387 (J. Chadbourn rev. 1974), opines:

“The issue on the occasion when the former testimony or deposition was given must have been substantially the same, for otherwise it cannot be supposed that the former statement was sufficiently tested for cross-examination upon the point now in issue. Conversely, it is sufficient if the issue was the same, or substantially so for the purpose.” []

A case very much akin to that now before us was decided by the Texas Court of Appeals in 1883. In that case, Hart v. State, 15 Tex. Ct. App. R. 202 (1883), a Doctor Skinner was shot while he was on his way home from a house call. Hart was arrested and charged with assault with intent to murder. An “examining trial” was held before a justice of the peace at which Skinner testified to the assault and that Hart had shot him. Skinner died within a month of the shooting, and Hart was indicted for murder. At Hart’s trial, the prosecution, over objection, introduced into evidence the testimony of Doctor Skinner. On appeal, the Court said that there was no error, holding:

“It is a rule growing out of necessity, but now well established, ‘that, if there has been a prior proceeding involving the same issue, between the same parties, conducted regularly in pursuance of law, and therein the defendant had the opportunity to cross-examine the witnesses against him, then, if a witness has died, what he testified at the former hearing may be shown in evidence against the defendant in the present one. In the circumstances thus explained, the testimony of the witness at a former trial of the same cause, or another cause presenting the same issue, between the same parties, may be shown in evidence.’ (1 Bish. Crim. Proc., secs. 1195, 1196, and notes[)].” 15 Tex. Ct. App. R. at 225.

See also Dunlap v. State, 9 Tex. Ct. App. R. 179, 190 (1880), quoting T. Cooley, Constitutional Limitations 318 ,to the effect:

“If the witness was sworn before the examining magistrate, or before a coroner, and the accused had an opportunity then to cross-examine him or if there was a former trial, on which he was sworn, it seems allowable to make use of his deposition or of the minutes of his examination, if the witness has since deceased ....”

See 1 S. Greenleaf, Evidence § 163 (1899); 3 Wharton’s Criminal Evidence § 650 (13th ed. C. Torcia 1973).

The clear message from the cases and the treatises is that if there is an opportunity for cross-examination at the former trial, the testimony of the witness, deceased at the time of the later trial, is admissible. The trustworthiness of testimony of that type is obvious.

We think the issue presented in appellant’s attempted murder trial for shooting Miss Stewart in a vital organ is substantially similar to the issue formulated in the subsequent murder trial minus the victim’s death, the essential element of murder. A review of the testimony by Miss Stewart at appellant’s trial for assault with intent to murder discloses that appellant’s then counsel endeavored, through an elaborate cross-examination, to discredit the witness and demonstrate the appellant’s lack of culpability and, thus, satiated the opportunity for cross-examination test. We fail to see how the trial judge abused his discretion by permitting the admission into evidence of Miss Stewart’s prior testimony, particularly in light of the extensive cross-examination to which she was subjected.

III.

“The trial judge abused his discretion in refusing to permit the appellant to offer the criminal record of the decedent for purposes of impeaching the prior testimony offered at trial.”

This exact issue was presented to this Court in appellant’s appeal from the conviction for assault with intent to murder. Thomas v. State, 29 Md. App. 45, 349 A. 2d 384 (1975). There, we rejected appellant’s argument relative to the use of the decedent’s “... previous convictions for assault ...” on the ground that the convictions did not indicate or even approach the type of crime which would indicate that the victim lacked candor or truthfulness. 29 Md. App. at 52-54. We are not inclined to depart from that holding, and we view it as dispositive of the issue.

IY.

“Reversible error was committed by the trial judge in submitting the case to the jury on the question of first degree murder, due to the insufficiency of the evidence.”

Appellant hypothesizes that if the victim’s prior testimony was excluded, the evidence remaining would have been insufficient to support submitting to the jury the question of whether appellant was guilty of first degree murder. We need not tarry long in our consideration of this issue for the reason that we have held, in part II hereof, that the deceased’s previous sworn testimony, at the assault with intent to murder trial, indeed, was admissible in the instant case. Hence, the foundation upon which the appellant built his theory has crumbled.

V.

“Reversible error was committed by the trial judge in submitting the case to the jury due to the insufficiency of the evidence.”

In a criminal trial, the test for determining the sufficiency of the evidence in a jury trial has been articulated so often by the Court of Appeals and by this Court that citations are no longer necessary. The test is whether the admissible evidence adduced at the trial showed directly or supported a rational inference of the facts to be proved, from which the jury could be properly convinced, beyond a reasonable doubt, of the accused’s guilt of the offense charged.

Because there was, in the case now before us, a conflict in the expert medical witnesses’ testimony as to the cause of death, the appellant asserts, in effect, that the doubt should have been resolved in his favor. The short answer to the contention is that the jury, properly instructed as to the burden of proof shouldered by the State, the presumption of innocence cloaking the appellant, and the applicable law relative to homicide, concluded, beyond a reasonable doubt, that the appellant was guilty of murder in the second degree.

The record reveals that Dr. Russell Fisher, the State’s Chief Medical Examiner, testified:

“I believe that she [Gloria Jean Stewart] died as a result of a series of complications of a gunshot wound which injured her spinal cord and, in fact, destroyed her spinal cord at the level of the first lumbar vertebrae.”

It was Doctor Fisher’s opinion that Miss Stewart suffered from no “... disease in a terminal state other than those things which . .. [he] regarded as complications of the gunshot wound . . .” of June 2,1974. Dr. Bernard Kreutz, the general surgeon who originally operated upon Miss Stewart following the shooting, said: “I think she didn’t die immediately because of the gunshot wound, but eventually died because of that.”

There was medical testimony as to the internal complications sustained by Miss Stewart, including, inter alia, a renal disease. The State’s evidence would indicate that the renal disease was due to the gunshot wound. On the other hand, Dr. Oscar B. Hunter, a forensic pathologist, testifying on behalf of the appellant, told the jury that in his opinion Miss Stewart “.. . died from renal disease.” Doctor Hunter thought the renal, or kidney, disease “. .. existed many years prior to . ..” the shooting.

One of the jury’s purposes is to resolve different issues of fact. When, as here, there is conflicting evidence, it is for the jury to pick and sift, to stress and ignore, to believe and disbelieve, to weigh and assess, and resolve the conflicts in reaching a final decision to acquit or convict. The jury, in the case at bar, elected to believe the State’s witnesses and not the appellant’s. We observe no error in Judge Mitchell’s submitting the matter to the jury, nor can we agree with appellant that the evidence in this case was insufficient to sustain the jury’s verdict of murder in the second degree.

Judgment affirmed.

      . William Shakespere, King Henry VIII, Act V, scene v, line 40 (1613).

      . Benton overruled Palko v. Connecticut, 302 U. S. 319, 58 S. Ct. 149, 82 L. Ed. 288 (1937), which held that the Fifth Amendment was directed to the federal government and not the States.

      . Cousins v. State, 277 Md. 383, 354 A. 2d 825 (1976); Thomas v. State, 277 Md. 257, 353 A. 2d 240 (1976), rev’g 26 Md. App. 232, 337 A. 2d 137 (1975).

      . Mr. Justice Black filed a sharply critical dissent in Bartkus , exclaiming:
      “The Court apparently takes the position that a second trial for the same act is somehow less offensive if one of the trials is conducted by the Federal Government and the other by a State. Looked at from the standpoint of the individual who is being prosecuted, this notion is too subtle for me to grasp.” 359 U. S. at 155.

      . We do notj in this opinion, endeavor to resolve the question of the appellant’s serving two sentences, albeit concurrent, for offenses which may have merged had they been tried jointly as part of the same indictment. That interesting issue is not before us and, the resolving of the thorny problems posed thereby will have to await another day when the matter is put squarely to us.

      . Stewart’s Case, a Scottish case decided between 1852-1867, held:
      “There can never be the crime of murder till the party assaulted dies; the crime has no existence in fact or law till the death of the party assaulted. Therefore it cannot be said that one is tried for the same crime when he is tried for assault during the life, and tried for murder after the death, of the injured party. That new element of the injured person’s death is not merely a supervening aggravation, but it creates a new crime.” 5 Irv. at 314.

      . 5 Wigmore § 1387, at 91-95, cites decisions from Federal, State and foreign jurisdictions interpreting the rule. Such interpretations demonstrate the disharmony in the rule’s application.


source: Caselaw Access Project

author: Smith, J.,

license: Public Domain

text:
    IN RE APPEAL NO. 1327, September Term, 1975 from the District Court of Montgomery County, sitting as a Juvenile Court
    [No. 1327,
    September Term, 1975.]

      Decided July 30, 1976.

    The cause was argued before Frederick J. Singley, Jr., and Marvin H. Smith, Associate Judges of the Court of Appeals and David Ross, Associate Judge of the Eighth Judicial Circuit, all specially assigned.

      William G. Simmons, Assigned Public Defender, with whom was Alan D. Massengill, Assigned Public Defender, on the brief, for appellant.

      Henry E. Dugan, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Andrew L. Sonner, State’s Attorney for Montgomery County, on the brief, for appellee.
   Smith, J.,

delivered the opinion of the Court.

It was alleged in this juvenile proceeding that the juvenile assaulted an adult with a baseball bat. The altercation took place on a neighboring vacant lot when the victim allegedly was unhappy after a baseball had dented his car and he made his objections known.

The juvenile here contends (1) that the juvenile judge “erred by disposing of this matter solely on the basis of the offense charged without regard to the Juvenile’s rehabilitative needs, and in so doing abused [his] discretion,” and (2) that the evidence presented was insufficient to sustain the finding that he was a delinquent child.

Taking the contentions in inverse order, we conclude upon a review of the record that the trial judge did not err in finding this individual to be a delinquent. Maryland Rule 1086 is applicable. The juvenile suggests that “[unknowingly, the Court’s own comments at the end of the State’s case summarized why, as a matter of law, the Court erred in finding that the Appellant committed a delinquent act,” pointing out that the trial judge stated, “I would say a person would have a right to hit somebody with a baseball bat if it was his property. He could use reasonable force to remove a trespasser.” He then goes on to fashion an argument based upon trespass as well as self-defense. The trial judge in his final opinion said that he was “totally unable to accept that this [was] a matter of self-defense.” Judge McWilliams pointed out for the Court of Appeals in Racine v. Wheeler, 245 Md. 139, 144, 225 A. 2d 444 (1967), that a “jury is free to believe only a portion of the evidence of each side” and that “the synthesis apparently accomplished by the jury [in that case was] simply a manifestation of its obvious function.” As it was put in Phelps v. Goldberg, 270 Md. 694, 705, 313 A. 2d 683 (1974), “It is elementary that the trier of fact is not obliged to believe all that he or it hears.” There clearly was sufficient evidence before the trier of fact for him to conclude that this young man improperly struck the complaining witness with a baseball bat and thus was a delinquent child, a term defined by Maryland Code (1974, 1975 Cum. Supp.) § 3-801 (j) Courts and Judicial Proceedings Article as “a child who has committed a delinquent act and requires guidance, treatment, or rehabilitation.” Subsection (i) of the same section defines “delinquent act” as “an act which would be a crime if committed by an adult.”

At the final disposition hearing counsel for the juvenile stated that he “ha[d] ... in the courtroom three witnesses and [he] w[ould] proffer as to their testimony ... if the Court so desire[d],” which he then proceeded to do. The transcript of that disposition hearing is far from satisfactory in its quality, having numerous references to inaudibility. It covers approximately three and three-quarter pages. The trial judge said in his disposition:

“Court: Court feels more strongly about it than either the State or Attorney. This is INAUDIBLE have notes recall the testimony. Man was struck on the head as he was turning away INAUDIBLE could have been a fatality. This is a incident.... He asked for the bat. Struck Mr. Taylor’s head and body. I think incidation [sic] of lack of concern. I feel that removal from the community is mandatory. Program of treatment and rehabilitation at the Maryland Training School for Boys for period going to be determined by his progress.”

He signed an order committing the juvenile to the Maryland Training School for Boys. The reasons given in the order were:

“WHEREAS, [the juvenile], the respondent in the above-entitled cause, has been adjudged a delinquent child and was placed under the jurisdiction of this Court at an adjudicatory hearing duly held on the 13th day of November, A.D., 1975; and this cause having come on for disposition at a hearing duly scheduled on notice to all parties; and the testimony of witnesses and argument having been heard; and the Court having considered the respondent’s age and the Court Report made to assist the Court to determine a proper disposition; the availability and respondent’s amenability to treatment, training and a program of rehabilitation best suited to the physical, mental and moral welfare of the respondent consistent with the public interest; the nature of the offense alleged to have been committed or participated in by the respondent; and the public safety; and it appearing to the Court that the best interests of both the respondent and the public would be served by removing the respondent from his present environment.”

Rule 915 b requires “[i]f the disposition hearing is conducted by a judge, and his order includes placement of the child outside his home, the judge shall announce and dictate to the court stenographer or reporter, or prepare and file with the clerk, a brief statement of the reasons why such placement is necessary.” The State conceded at oral argument before us that the trial judge had failed to comply with this rule. Subsequent to passage of the commitment order counsel for the juvenile filed a three page motion “to revise sentence” citing, among other things, the background of the individual and that “the State’s Attorney pointed out to the Court that it would be in the public interest to enforce [sic] a suspended sentence.” In his memorandum of points and authorities he reminded the court that under Code (1974, 1975 Cum. Supp.) § 3-820 (b) 1, Courts and Judicial Proceedings Article, “the Court c[ould] place the Respondent under the guardianship of a relative, or other fit person, upon terms the Court deems appropriate.” He did not, however, refer to this rule. The court’s order on this motion went no further than to say that it found “that the program of treatment, care and rehabilitation at the Maryland Training School for Boys, as previously Ordered by th[at] Court on December 12, 1975, is in the best interests and welfare of [the juvenile], child, and is consistent with the public interest....”

When the Court of Appeals adopted Maryland Rule 915 b it expected, desired, and required by way of reasons for placement of a child outside his home something more than the perfunctory statements in the court’s summary and order of December 12 and its order of January 2.

Judgment affirmed; commitment to the Maryland Training School for Boys vacated and case remanded to the District Court of Maryland for Montgomery County for further proceedings consistent with this opinion; Montgomery County to pay the costs.


author: Singley, J.,

text:
    ALBERT MILLER, JR. v. STATE OF MARYLAND
    [No. 1330,
    September Term, 1975.]

      Decided July 30, 1976.

      The cause was argued before Frederick J. Singley, Jr., and Marvin H. Smith, Associate Judges of the Court of Appeals and David Ross, Associate Judge of the Eighth Judicial Circuit, all specially assigned.

      James J. Gitomer for appellant.

      Bernard A. Baum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Svrisher, State’s Attorney for Baltimore City, and William Monfried, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Singley, J.,

delivered the opinion of the Court.

The appellant, Albert Miller, Jr., pleaded guilty to first degree murder in the Criminal Court of Baltimore (Liss, J.) on 2 June 1970 and was sentenced to life imprisonment. As a result of Miller’s plea, the State nol prossed a robbery indictment and agreed to recommend life imprisonment, thus allowing Miller to avoid any possibility of the death penalty. Miller did not appeal.

On 23 October 1975, Miller filed a Petition for Relief under the Uniform Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl. Vol.) Art. 27, § 645A, in which he alleged that:

“... [he] was denied effective assistance of counsel in that a plea of guilty was entered as to first degree murder without the petitioner being advised of his privilege against self-incrimination.”

This fact, the petition alleged, rendered the guilty plea void under the mandate of Boykin v. Alabama, 395 U. S. 238 (1969), as interpreted by English v. State, 16 Md. App. 439, 298 A. 2d 464 (1973), cert. granted, 268 Md. 748, dismissed as improvidently granted, 3 July 1973, and Davis v. State, 28 Md. App. 50, 343 A. 2d 550, cert. granted, 276 Md. 740 (1975), aff'd, 278 Md. 103 (1976).

A hearing was held on the petition in the Criminal Court of Baltimore (Sklar, J.), at which time argument by counsel for Miller was heard, but Miller was not interrogated. The State strenuously maintained that Miller had effectively waived any right to raise the Boykin question, see Code (1957, 1976 Repl. Vol.) Art. 27, § 645A (c); Maryland Rule BK48 (a). The relief sought was denied on both grounds presented: first, that Miller had waived the point, and, that even if there had been no waiver, Miller’s guilty plea had been freely and voluntarily given. We granted leave to appeal, Rule BK46, and transferred the case to our regular appeal docket.

Miller has presented two questions for our consideration:

“1. Did not the Trial Court err in denying Appellant’s Petition for Post Conviction Relief when it determined that Appellant’s guilty plea was valid under the dictates of Boykin v. Alabama?
“2. Did not the Trial Court err in determining that the Appellant effectively waived his right to complain about the infirmity of his guilty plea?”

We are convinced that the question whether Boykin v. Alabama, supra, mandates the granting of the relief sought by Miller has been recently answered by the Court of Appeals in Davis v. State, supra. Miller primarily relies upon the earlier opinion in Davis written by the Court of Special Appeals, 28 Md. App. 50, 343 A. 2d 550 (1975) and upon English v. State, supra.

The interpretation given to Boykin by this Court in Davis and English, both supra, as well as in Williams v. State, 10 Md. App. 570, 271 A. 2d 777 (1970), cert. denied, 261 Md. 730 (1971); McCall v. State, 9 Md. App. 191, 263 A. 2d 19, cert. denied, 258 Md. 729 (1970) and Silverberg v. Warden, 7 Md. App. 657, 256 A. 2d 821 (1969) was essentially that:

“the due process clause of the Fourteenth Amendment requires state trial judges to specifically inform defendants of the essential elements of their privilege against compulsory self-incrimination before accepting their guilty pleas ...Davis v. State, supra, 278 Md. at 107.

In other words, unless the trial court performed a ritualistic litany in which the accused was told of his Constitutional rights, including those derived from the Fifth Amendment, Boykin would be violated. Judge Digges, for the Court of Appeals in Davis, after a scholarly review of the Supreme Court cases and the interpretation given Boykin in other jurisdictions, determined that our interpretation of Boykin was overly restrictive and that the proper interpretation should be:

“.. . that Boykin does not stand for the proposition that the due process clause requires state trial courts to specifically enumerate certain rights, or go through any particular litany, before accepting a defendant’s guilty plea; rather, we think Boykin merely holds that the record must affirmatively disclose that the accused entered, his confession of guilt voluntarily and understandingly.” Davis v. State, supra, 278 Md. at 114. (emphasis supplied).

What the Constitution directs us to do in the instant case, therefore, is to determine whether Miller, under the totality of the circumstances, “entered his confession of guilt voluntarily and understandingly.” This does not, however, require us to review the record of the hearing where Miller’s plea was entered in order to determine if the trial court employed any particular prophylactic procedure before accepting the guilty plea.

The record reveals that Miller took the witness stand during the hearing at which he pleaded guilty and was interrogated in painstaking detail by his counsel. We shall extract from the transcript illustrative portions of that colloquy which we believe conclusively demonstrate that Miller was fully aware of the consequences of his plea of guilty. Preliminarily, we note that Miller had an unusually thorough understanding of the felony-murder doctrine, under which he had been indicted because the murder had occurred in the course of an armed robbery. This is evidenced by the following:

“Q. [by Miller’s counsel] Now give the Court your understanding of what first degree murder is when you kill someone in the course of a robbery.
“A. [by Miller] First degree murder in the course of a robbery is when you go into the place with an intent to rob, and while the robbery is being committed, a murder is committed also at the same time.
“Q. Now, is that what happened in this case.
“A. Yes, it is.”

There can be, therefore, no doubt that Miller understood the essential elements of the felony-murder doctrine and fully and voluntarily admitted that he entered a store with the intention of committing a robbery and that the victim was murdered in the course of that robbery. This satisfies the recent holding of the Supreme Court in Henderson v. Morgan, 44 U.S.L.W. 4910 (June 15, 1976), that a defendant who pleads guilty must be aware of the essential elements of the crime to which he pleads guilty.

The colloquy continued:

“Q. All right. Now, you understand that when you plead guilty, that you are going to give up your right to a trial by jury, you understand that?
“A. Yes, I do.
“A. My [Miller’s] understanding of a jury trial is that a jury trial is twelve people selected from the community of the Baltimore City area . .. and, in accepting the facts, they bring about a verdict... whether the defendant is guilty or not guilty, either all the people say that I am, that the person is guilty, or he is not guilty by all the people.
“Q. Now, do you understand that you have an absolute right to this jury trial?
“A. Yes, I do.
“Q. Now, do you further understand that when you plead guilty, you are going to give up your rights to confront and to cross examine witnesses ... your rights to have the state call witnesses ... to testify on behalf of the state, to bring evidence against you — do you understand that you are giving that up?
“A. Yes, I do understand that.
“Q. Now, do you further understand, and did I explain to you that when you plead guilty, you must do this voluntarily; in other words, nobody can make you plead guilty, do you understand that?
“A. Yes, I do.
“Q. That you are intelligently giving it [the plea] ... because, you know, and you are, in fact, guilty of murder in the first degree, because you did, in fact, participate in this robbery, and a man was killed as a result of that participation —
“A. Right.
“Q. —is it correct?
“A. Yes, it is.
“Q. And no one has threatened you to give the plea?
“A. No one at all.”

Miller also indicated that he thoroughly understood the nature of his plea bargain, that the State would recommend life imprisonment and would nol pros the robbery indictment, that he understood that he was waiving his right to appeal from his conviction other than on jurisdictional grounds or on the ground that the plea was involuntarily given.

This record was obviously the product of commendable effort and thorough preparation by Miller’s counsel, Gerald Kroop, who had interviewed and advised his client at length. The inescapable conclusion, therefore, is that Miller knew precisely the consequences of his plea of guilty and did so voluntarily and freely with full knowledge of the constitutional rights which he thereby waived. While the references to the privilege against compulsory self-incrimination were, in the words of the trial judge, at best “crude,” there is simply no longer, under Davis v. State, supra, 278 Md. at 103, any necessity that a ritualistic litany be performed as long as the accused comprehends the nature of his decision to plead guilty and does so of a free will.

Under the view that we take of this case, it becomes unnecessary for us to consider the question of Miller’s waiver of the right to raise the question in a post conviction proceeding.

Judgment affirmed; relief denied. Appellant to pay costs.

      . In Boykin, the record of the petitioner’s hearing where he pleaded guilty was “wholly silent,” 395 U. S. at 240, thus making it “error, plain on the face of the record, for the trial judge to accept petitioner’s guilty plea without an affirmative showing that it was intelligent and voluntary.” 395 U. S. at 242. The situation is vastly different when the record discloses that the accused either was informed in open court or was already aware of the consequences of his decision to plead guilty.

      . It is noteworthy that the view taken by the Court of Appeals in Davis is shared by the federal courts, including the Fourth Circuit, see, e.g. Wade v. Coiner, 468 F. 2d 1059 (4th Cir. 1972); United States v. Frontero, 452 F. 2d 406 (5th Cir. 1971).

      . In his brief, Miller states that he was not advised of his privilege against self-incrimination during the course of the hearing where his plea was accepted by the trial court. While we agree that the record fails to indicate any precise reference to the privilege against self-incrimination, it is inconceivable to us that Miller had not been told of the privilege by his counsel prior to the hearing since it is abundantly apparent that Miller had been thoroughly schooled by Mr. Kroop, see Stevens v. State, 232 Md. 33, 192 A. 2d 73 (1963); State v. McKenzie, 17 Md. App. 563, 303 A. 2d 406 (1973). The burden was upon Miller to present evidence that he was unaware of his Fifth Amendment privilege, Maryland Rule BK48 (b). This failure to do so leads us to assume that no such circumstance existed. In any event, we need not concern ourselves with this problem, for we are convinced that the record overwhelmingly reveals the voluntary and knowing nature of Miller’s plea.


author: Lowe, J.,

text:
    JOHN JONES v. STATE OF MARYLAND
    [No. 1378,
    September Term, 1975.]

      Decided July 30, 1976.

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

      Elsbeth L. Bothe, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William A. Swisher, State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Sir William Blackstone, “One of the Justices of His Majesty’s Court of Common Pleas,” recorded in his Commentaries on the Laws of England that “[t]he power to punish for contempt seems to have originated in the fact that the king, in contemplation of law, is supposed to be always present in his courts.” II Cooley’s Blackstone, Bk. IV, p. 283, n. 1 (4th ed.) A reminiscence of that ominous majesty is present in contemporary courts as the robed figure presiding to dispense the sovereign’s justice. The inherent power of contempt is the means of assuring that justice will be decorously dispensed.

Obviously the dignity surrounding the conduct of a trial has certain minimum standards, but there is considerable play in the wheels of justice, and beyond those minimum standards an area exists within which the rigidity of courtroom decorum is left to the discretion of the presiding judge. Because such individual differences may exist in the exercise of this potentially drastic power of the court, trial judges must be on guard against confusing offenses to their sensibilities with obstructions of the administration of justice. Brown v. United States, 356 U. S. 148, 153. The judge must be convinced beyond a reasonable doubt that the conduct complained of is contemptuous, Goldsborough v. State, 12 Md. App. 346, 358. At common law a court of competent jurisdiction was the sole judge of contempts, and its judgment in such cases was final and conclusive and was not reviewable by any other tribunal by appeal or otherwise. Kelly v. Montebello Park Co., 141 Md. 194. Recognizing that judges too are subject to human vagaries and that what is flattery to one may be offensive to another, the Legislature has provided that “[a]ny person may appeal from any order ... passed to ... vindicate the dignity of the court and adjudging him in contempt of court.” Cts. Art., § 12-304.

The appellate courts must also be on their guard, however.

“It is no less important for this Court to use self-restraint in the exercise of its ultimate power to find that a trial court has gone beyond the area in which it can properly punish for contempt. We are not justified in sliding from mere disagreement with the way in which a trial court has dealt with a particular matter . . . into a condemnation of the court’s action as an abuse of discretion.” Brown, supra, 356 U. S. at 153-154.

To facilitate appellate review, Md. Rule P3 requires that the court's order of contempt recite the facts upon which the contempt is based. The purpose of this recitation of facts is not to provide the reviewing Court an opportunity to reevaluate and weigh the evidence, but to provide a basis for an assessment of its legal sufficiency, Kandel v. State, 252 Md. 668, 672.

The appellant in the case now under consideration was an observer at the trial of a friend conducted in the Criminal Court of Baltimore. The act for which he was held in direct contempt by the judge consisted of slapping the back of the bench in front of appellant, apparently in exasperation at the justice meted out to him by the judge following an inquisitional proceeding conducted to determine what, if any, disorder might have occurred out of the presence of the court while the trial was in progress. Appellant was summarily sentenced to three months in the Baltimore City Jail for that act (16 days of which appellant served prior to this appeal).

“Well, just one minute. The Court wishes to observe that in the presence of the Court and while the Court was on the Bench, this young man arose and slammed his hands down upon the Bench [back of the bench seat] in such a way as to constitute a direct contempt of this Court. Accordingly, Madam Reporter, you will transcribe these proceedings as required by the rules for proceedings for summary conviction for direct contempt and finds him guilty of contempt of this Court and prejudice himself on that contempt will serve three months in the Baltimore City Jail.
Sheriff, take him away.”

In explaining his decision to the remaining observers, the judge made it clear that he predicated his decision more upon that which had led up to appellant’s act than upon the act itself.

“The Court wishes to point out to all who remain, that the purpose of a trial in court is to determine the truth of the matters in controversy. It cannot be done in an atmosphere of intimidation or any sort of cavalier conduct where the officers of the state and city who are there to discharge their functions. Any one who indicates any disrespect to these officers or who attempt in any way to hassle them, molest them or embarrass them is going to be dealt with promptly and severely by this Court.
We welcome your attendance here in the courtroom. One of the rights guaranteed to every citizen in this country by the Constitution is to a speedy, fair and public trial. You, as members of the public, are welcome to attend this trial and must do so in an orderly fashion and must make no attempt to contact officers or those who come here to testify. Further actions of this sort will be dealt with in summary fashion by the Court.”

As previously noted, appellant had been one of a number of spectators in the courtroom and was especially interested in the outcome of the trial because of his friendship with one of the defendants. We infer from what subsequently transpired that during a recess of that trial, the judge was informed that some sort of disturbance was taking place in the courtroom. The judge promptly reconvened the court “to determine what, if anything,” had occurred.

“THE COURT: Everybody have a seat.
Madam Reporter, the Court desires the record to show, during the recess, after the jury had been sent to the jury room, adjoining to the Courtroom and Chamber of this court room that some disturbance had occurred in the court room. We have now reconvened the court out of the presence of the defendants because we apprehended this aspect of the matter has no connection with them whatsoever and not intended to be a part of the trial in progress, to determine what, if anything, occurred in the courtroom and whether the Court should take notice of it.”

When the attorney for the defendant then being tried interposed an objection to this procedure on behalf of her client, the court attempted to explain:

“It has nothing to do with the defendants. It is a matter of internal security and matter in the court and nothing to do with the trial in progress. It is independent of the case we are now trying.”

The first cast by the judge, directed toward the security force, was unproductive:

“Now, if you gentlemen of the Security Force will advise the Court what, if anything, came to your attention that you would like the Court to take notice of.
Just tell me what the problem is.
SHERIFF HOLT: I was sitting at my desk here, Your Honor, and saw one of the spectators in the back lean forward and speak to the lady in the red coat. And when she saw me looking at her she sat back and smiled, but the lady in the red coat sort of turned around halfway and she didn’t finish it. It was just something that the spectators said to her.”

That response having shown little if any disorder, the judge turned his inquiry toward the police officers who were present in the courtroom as witnesses. This cast was more successful:

“THE COURT: Anybody say anything to any of you gentlemen?
OFFICER HOOK: Yes, Your Honor, they did.
While I was out in the hallway, this one got real smart. He said, I was so shaky, if I had my gun in my hand he wouldn’t like to be in my path.
Then I am trying to get in the elevator to get in Traffic Court, he brushes right against me; he says, I bumped into him and started to have a lot of words to say about it, you know, meaning he didn’t believe my testimony or whatever I had to say. Evidently he wasn’t happy with what I testified to. I got in the elevator. I didn’t get a chance to say nothing to him.”

The court turned its attention to appellant and demanded an explanation for his presence.

“THE COURT: Stand up. What is your name?
A SPECTATOR: John Jones.
THE COURT: What are you doing here in the courtroom?
MR. JONES: I came here to see my friend that is on trial.
THE COURT: You came here to watch the case in trial?
MR. JONES: Yes.”

Appellant explained his conduct with candor:

“THE COURT: Did you say anything to the officer:
MR. JONES: Yes.
THE COURT: What did you say to him?
MR. JONES: Like he said I said, ‘He was so shaky if he had his gun in his hand I wouldn’t like to be m his path.’
THE COURT: Say anything else to him?
MR. JONES: Yes. When he went on the elevator, I said, ‘You can at least say excuse me.’ I had my head turned and he almost knocked me down.
I was standing in one place after I had finished my conversation with you, and you came from the water fountain into me and onto the elevator.
THE COURT: All right, have a seat.”

The police officer involved stated that:

“OFFICER HOOKS: Every time I walked out one of them said, you better make sure you tell the truth, better not lie.”

Another officer pointed out that he too had been accosted by the appellant:

“Yes, Your Honor. Same gentleman sitting here also made a remark to me as I came from the adjoining courtroom this morning right before we recessed for lunch. He made the statement aloud to his friends, that here comes John Wayne, look at him now.
I greeted the young man. I said, ‘How are you?’ Then he made some other remarks that I could not hear.”

The broad mesh used for the final cast brought forth little of significance to the court’s inquiry. Judge Bowen then decided to cite the appellant for constructive contempt and ordered that appellant be held without bond.

“Madam Reporter, the Court asks that you transcribe this portion of the proceedings. The Court cites this man here for contempt.
Mr. Sheriff, you take him into your custody.
The State’s Attorney, you file the appropriate proceedings to proceed against him for constructive contempt of this Court.
MR. BURGER: Yes, Your Honor.
THE COURT: You will be held without bond pending the filing of the charges, sir.”

It was at this juncture that appellant “slammed his hands down” in a manner which Judge Bowen found contemptuous. The citation for the constructive contempt is not before us except as the facts leading to it relate to the provocation which culminated in the conduct held by Judge Bowen to be direct contempt.

Because we are unable to find sufficient evidence in the record from which the trial judge could conclude beyond a reasonable doubt that appellant’s in-court conduct constituted a direct contempt, we will reverse the judgment of the trial court. We also base our reversal upon the failure of the trial judge to comply with Md. Rule P3. b:

“Where a direct contempt is committed, the court shall sign a written order to that effect. The order shall recite the facts, be signed by the judge and entered of record. The order shall state which of the facts were known to the court of its own knowledge and as to any facts not so known, the basis for the court’s finding with respect thereto.”

The purpose of that rule is to enable us to determine by an inspection of the record, whether a contempt has been committed and whether the court had jurisdiction to punish it. See Annot., 154 A.L.R. 1227.

We have gleaned as well as we were able from the record and from the judge’s concluding observations to the spectators, the appellant’s conduct, and the reasons for the judge’s decision. As indicated, there is nothing in the transcript (all relevant portions of which we have reproduced in this opinion) to indicate “beyond a reasonable doubt” that appellant’s conduct was in direct defiance of the dignity and authority of the tribunal or interfered with the due and proper administration of justice. In Re Lee, 170 Md. 43, 47, cert. denied, 298 U. S. 680. To the contrary, the record reveals that in all communications with the court, appellant’s language was respectful and forthright, if not humble. The appellant’s single act of slamming his hands on the bench before him did not “obstruct justice,” nor was it necessarily defiant or disrespectful in and of itself. Short of holding that such an expression of exasperation is contempt per se, there is nothing in the surrounding circumstances from which we can interpret the act as contemptuous. A reasonable doubt clearly exists. If undisclosed observations were at the root of the court’s action, their substance is not apparent from the record.

While it is conceivable that the recitation of facts in a “P3. order” may have added some element of proof not apparent to us from the record, it is more likely to have been limited by necessity to .conclusions and characterizations. For that reason, we see no purpose to be served by remanding the case for compliance by the trial judge with the mandate of Rule P3.

“Unfortunately, if such actions on the appellant’s part did take place, they are not stated in the contempt order and, as a consequence, this Court cannot take notice of their occurrence. This only emphasizes the importance, as well as the necessity^ of having the trial courts of the State carefully adhere to the mandate of Rule P3 b that a contempt order ‘shall recite the facts’ constituting the contempt, and not be limited merely to the court’s conclusions or characterizations concerning the contemnor’s behavior. (Emphasis added.) This requirement is as much directed toward providing meaningful appellate review of a contempt conviction as it is aimed at assuring procedural protection for the defendant. There will be occasions, and the instant case may have been one, where the transcript of the proceedings will not furnish a completely accurate recitation of the events which precipitated a summary conviction of contempt. It is the contempt order, therefore, to which appellate courts must look in order to ascertain the full facts. Accordingly, the trial courts should remember that to the extent a contempt order does not specify those facts, appellate review of a conviction for summary contempt will be pro tanto circumscribed.” Robinson v. State, 19 Md. App. 20, 28-29.

Nor do we think that Judge Bowen’s general and unparticularized statement to the spectators lends any support to the conclusion that appellant’s in-court conduct constituted direct criminal contempt. Muskus v. State, 14 Md. App. 348, 361.

We do not decide whether appellant’s conduct, including the remarks admittedly made by appellant to the police, constitute constructive contempt. That issue is not before us. Whatever the outcome of that might have been, appellant would have an opportunity to defend and explain his conduct. See Hitzelberger v. State, 173 Md. 435.

We conclude with a caveat.

“In vacating appellant’s conviction for contempt, we remain aware of the great provocation to which the trial courts are often subjected by the conduct of arrogant and insolent criminal defendants. Nevertheless, no man should be deprived of his liberty on the basis of judicial ipse dixits alone. To hold otherwise would be to ignore the language and clear purpose of Rule P3 b and flaunt due process.
We said in Muskus v. State, supra at 361, that ‘while trial judges must be given wide latitude to punish contemptuous conduct, they must ever be on guard against confusing offenses to their sensibilities with obstructions to the administration of justice.’ That advice was not followed in this case.” Robinson v. State, 19 Md. App. at 29.

Judgment reversed.

      . While we are precluded from modifying sentences in most criminal cases, Gee v. State, 2 Md. App. 61, 68, we have the power to do so in matters of criminal contempt. See Ex Parte Bowles, 164 Md. 318, 334, cited with approval in Freedman v. State, 176 Md. 511, 518.

      . There is no indication in the record that the “one of them” was appellant.

      . “THE COURT: Anybody else have anything else to say about the matter?
      MS. REYNOLDS: The girl behind me called me a white liar. I started to turn around and look at the person sitting behind me.
      THE COURT: Can you identify that person?
      MS. REYNOLDS: I turned and then I just turned forward again, Sir, she was directly behind me.
      THE COURT: You want to say something?
      A SPECTATOR: Yes. I was sitting behind her and I didn’t say nothing to her.
      MS. BOTHE: Could I ask that these people identify themselves as they say anything.
      THE SPECTATOR: My name is Debra Brown.
      THE COURT: Have a seat.
      Any of you gentlemen of the Security Force have anything to say about these other two men here?
      NO AFFIRMATIVE RESPONSE.”

      . “While it is never a complete defense to a charge of contemptuous conduct that no such conduct was intended, Ex Parte Bowles, supra, at pp. 332-333, where the act comprising the alleged contempt is not plainly contemptuous on its face, a claim of good faith has been held entitled to serious consideration and has been found determinative in some cases. See May Hosiery Mills v. United States District Court, 64 F. 2d 450 (9th Cir.); Caldwell v. United States, 28 F. 2d 684 (9th Cir.); Sprinkle v. Davis, supra [111 F. 2d 925 (4th Cir.)]; 17 C.J.S. Contempt, p. 20.” Goldsborough v. State, 12 Md. App. at 357.


author: Melvin, J.,

text:
    LORENE BOGGS v. CITIZENS BANK AND TRUST COMPANY OF MARYLAND et al.
    [No. 415,
    September Term, 1975.]

      Decided September 10, 1976.

      The cause was argued before Moore, Lowe and Melvin, JJ.

      Robert C. Heeney, with whom were William H. Adkins, III and Heeney, McAuliffe, Rowan & Abell on the brief, for appellant.

      Francis J. Ford for appellees.
   Melvin, J.,

delivered the opinion of the Court.

This case presents the single issue of whether a collecting bank may with impunity dishonor checks of its customer for insufficient funds, when the insufficiency is caused by the unilateral action of the collecting bank in charging back to the customer’s account the amount of a check deposited by the customer seven months prior to the charge-back.

The appellant, Mrs. Lorene Boggs, claiming that a collecting bank has no such right, filed suit in the Circuit Court for Prince George’s County against the Citizens Bank and Trust Company of Maryland, the appellee here. The suit is based on the tort of wrongful dishonor, a cause of action recognized in this State by § 4-402 of the Maryland Uniform Commercial Code. See also Siegman v. The Equitable Trust Company, 267 Md. 309 (1972) and Magness v. Equitable Trust Company, 176 Md. 528 (1939).

At the close of all the evidence the trial judge withdrew the case from the jury by granting the bank’s motion for a directed verdict. In her timely appeal, Mrs. Boggs claims the motion was improperly granted. We agree and shall remand the case for a new trial.

In reviewing the propriety of the granting of a motion for a directed verdict, the invariable rule is that all evidence and inferences rationally drawn therefrom must be considered in the light most favorable to the party against whom the motion is made. Beckner v. Chalkley, 19 Md. App. 239 (1973). And if there is in the record any legally relevant and competent evidence to prove a party’s case, a directed verdict should not be granted. Jacobson v. Julian, 246 Md. 549 (1967); Miller v. Michalek, 13 Md. App. 16 (1971). Applying these tests to the record before us, we think there is evidence from which the jury could have found the following:

On June 29, 1971, Mrs. Boggs deposited in her checking account at the appellee bank a check for $548.80. The check was dated May 24,1971, drawn by the Prudential Insurance Company on the Provident National Bank in Philadelphia, Pennsylvania, and payable to Dr. John T. Lord. Prior thereto Mrs. Boggs had received medical treatment from Dr. Lord and other doctors, the expense of which was covered by an insurance policy she had with Prudential Insurance Company, the drawer of the check.

At the time she received the check from Prudential the balance she owed Dr. Lord was only $187.00. On June 29, 1971, she took the check to Dr. Lord’s office and explained to a receptionist that the check was for more than she owed Dr. Lord and asked how the matter should be handled. Dr. Lord appeared in the reception room and agreed that she should take the check and send him her personal check for what he was owed. Dr. Lord then endorsed the check and the receptionist wrote “pay to Lorraine Boggs” under the doctor’s endorsement. Mrs. Boggs then took the check, endorsed it herself and deposited it that same day in her checking account at the appellee bank. The check was processed normally and honored by the payor bank in Philadelphia. In July, 1971, Mrs. Boggs paid Dr. Lord by her personal check the amount owed him and for the next six months Mrs. Boggs continued to make withdrawals and deposits at the appellee bank with which she had been doing business without difficulty since 1962.

By a notice dated January 27, 1972, approximately seven months after the insurance check had been deposited, Mrs. Boggs was informed by the appellee bank that a check for $20.00 she had drawn on her account was “returned for insufficient funds”. She called the bank and was told that a “hold” had been placed on her account because of an allegation that the appellee had received that the $548.80 check deposited seven months earlier contained a forged endorsement. Several days later she received a notice in the mail, dated February 2, 1972, that her account was debited $548.80. The notice also informed her that two more of her checks had been dishonored by the appellee bank for insufficient funds. If the appellee had not recharged Mrs. Boggs’ account there would have been sufficient funds to cover all demands drawn against the account. On the same date, February 2, 1972, the appellee bank refunded to an intermediate bank its treasurer’s check for the $548.80. It was from the intermediate bank that the appellee bank had received by a transmittal dated January 24, 1972, the following:

“We are enclosing herein without entry the following described paid and cancelled check(s) [the Prudential check for $548.80] returned for Refund, forged endorsement, affidavit attached.
“Kindly have corrected and return to us at your earliest convenience”.

The “affidavit attached” was a form sworn to by Dr. Lord, dated January 4, 1972, in which he stated that the endorsement on the check was not his, that he did not authorize anyone to sign his name to the check, and that he never received the “proceeds of said check from any person whomsoever, nor did I receive credit from any person for the proceeds of said check”. The affidavit form had been prepared and sent to Dr. Lord by Prudential after he had been sent a photo copy of the check by Prudential and asked whether he had endorsed the check. The record is silent as to what may have aroused Prudential’s suspicions concerning the genuineness of his signature.

The appellee bank received the January 24, 1972 transmittal from the intermediate bank on January 25,1974 and immediately placed a “hold” on her account, without notifying Mrs. Boggs.

The bank has never claimed that Mrs. Boggs forged Dr. Lord’s endorsement. Indeed, the bank affirmatively disclaims any such contention.

In directing a verdict for the appellee bank, the trial judge felt the bank had “every legal right to charge back . . . the proceeds from the” insurance check because the bank itself was charged with that amount by the intermediate bank and had in fact refunded the proceeds to the intermediate bank, and because he saw “no testimony where the bank has done anything illegal”.

We think the issue in this case is controlled by § 4-212, “Right of charge-back or refund”. The section, in pertinent part, reads as follows:

“(1) If a collecting bank has made provisional settlement with its customer for an item and itself fails by reason of dishonor, suspension of payments by a bank or otherwise to receive a settlement for the item which is or becomes final, the bank may revoke the settlement given by it, charge-back the amount of any credit given for the item to its customer’s account or obtain refund from its customer whether or not it is able to return the item if by its midnight deadline or within a longer reasonable time after it learns the facts it returns the item or sends notification of the facts. These rights to revoke, charge-back and obtain refund terminate if and when a settlement for the item received by the bank is or becomes final (subsection (3) of § 4-211 and subsections (2) and (3) of § 4-213).
“(2) Within the time and manner prescribed by this section and § 4-301, an intermediary or payor bank, as the case may be, may return an unpaid item directly to the depositary bank and may send for collection a draft on the depositary bank and obtain reimbursement. In such case, if the depositary bank has received provisional settlement for the item, it must reimburse the bank drawing the draft and any provisional credits for the item between banks shall become and remain final.” (Emphasis added.)

Patently, in this case, the Prudential check had been finally settled and paid long before the intermediate bank called for a refund from the collecting appellee bank. The fact that the appellee bank acceded to the intermediate bank’s request to refund the $580.80 did not give the appellee bank the right unilaterally to charge back to Mrs. Boggs’ account the amount it had so refunded or to place a “hold” on her account. Any such right terminated when the payor bank made final settlement seven months before. In commenting on § 4-212, Anderson on the Uniform Commercial Code (2d Ed. Vol. 3, 1971) has this to say, at p. 263, § 4-212:10:

“After final settlement of an item, a customer’s bank changes from an agent for collection to a debtor of the customer, from which it follows that the bank cannot make any refund from the customer’s account to the drawee bank upon the basis that the latter claims that an indorsement was forged.”

Appellee’s reliance on the 622 West 113th St. Corp. v. Chemical Bank, N. Y. Trust Co., 276 N.Y.S.2d 85 (1966), is misplaced. In that case from New York’s Civil Court, the plaintiff claimed that it had deposited in the defendant bank a Department of Welfare check with an endorsement by a person who had identified herself as the payee on the check. The opinion states the further pertinent facts, as follows:

“On the trial, the bank proved that six months after it had credited plaintiff for the amount of the check, it was notified by its correspondent bank that the Department of Welfare claimed the endorsement had been forged, forwarded a copy of an affidavit to that effect, and that as a result the bank repaid the drawee bank and the amount of the check was deducted from plaintiff’s account.”

Citing U.C.C., §§ 4-212 and 4-207(2)(b), the court recognized the right of a collecting bank to recharge provisional credit given on a deposit. It noted, however, that once final settlement has occurred on a check,

“... the bank cannot then unilaterally deduct sums from the account credited to a depositor. After final settlement, and the charging of the amount of the check against the drawer’s account, a voluntary refund by the collecting bank is at its own peril, for there are defenses it could interpose to resist payment.... The mere assertion of a claim to any part of a deposit does not permit a bank on its own to recognize the validity of that claim.” at 89.

The New York court ultimately dismissed the claim by the plaintiff, that the bank had no right to debit the account, because it made the factual determination that the defendants had proven the check was indeed forged, and therefore the plaintiff was liable to defendant bank for the amount of the check on its § 4-207 (2) (b) warranty that all signatures on the check were genuine.

The present case is different from the New York case in that the plaintiff there was suing for recovery of the funds that it claimed were wrongfully debited from its account. The court concluded that although the defendant bank was wrong in debiting the account in the manner it did, the defendant bank was entitled to the money because in the trial it was proven that the endorsement on the check was a forgery. In the case sub judice the suit is not one for the recovery of the money debited, but is rather a suit charging the bank with wrongfully dishonoring demands on the account in which there would have been sufficient funds in the account to pay the demands but for the bank’s act of debiting the account.

The appellee here does not claim that its right to charge back appellant’s account depends upon whether or not Dr. Lord’s signature was in fact a forgery. It claims only that it acted in accordance with “reasonable commercial standards” under the circumstances, citing Dominion Construction, Inc. v. First National Bank of Maryland, 271 Md. 154 (1974). That case involved the application of § 8-406 to the particular facts of the case and is totally inapposite to the case now before us. The issue there was whether the defendant bank had breached its duty “not to cash or pass ... a check except for the endorsement of the designated payees”. It was held that the plaintiff, the drawer of the check, was negligent in drawing the check as it did, and that the bank in paying the check acted “in accordance with . . . reasonable commercial standards of [its] business”.

Here, the central issue is whether the appellee bank had a legal right to debit its customer’s account under the circumstances described. To prevail on its motion for a directed verdict, it must be shown that on the evidence it had such right as a matter of law. As we have shown, § 4-212 sets forth the circumstances under which the right can legally be exercised. Because there is abundant evidence in the case that the appellee had no right to debit or charge back the appellant’s account and because on that right depended the propriety of the dishonor of appellant's checks, we hold that the trial judge erred in directing a verdict for the defendant bank, the appellee here. The judgment below will therefore be reversed and the case remanded for a new trial.

Judgment reversed.

Case remanded for new trial.

Costs to be paid by appellee.

      . Now codified in the Commercial Law Article of the Annotated Code of Maryland, §§ 1-101 to 10-104 (formerly Code Art. 95B). All section numbers cited in this opinion refer to Maryland’s U.C.C. so codified.
      Section 4-402 reads as follows:
      “§ 4-402. Bank’s liability to customer for wrongful dishonor.
      A payor bank is liable to its customer for damages proximately caused by the wrongful dishonor of an item. When the dishonor occurs through mistake liability is limited to actual damages proved. If so proximately caused and proved damages may include damages for an arrest or prosecution of the customer or other consequential damages. Whether any consequential damages are proximately caused by the wrongful dishonor is a question of fact to be determined in each case.”

      . Mrs. Boggs spells her first name “Lorene”.

      . (2) Each customer and collecting bank who transfers an item and receives a settlement or other consideration for it warrants to his transferee and to any subsequent collecting bank who takes the item in good faith that
      (b) All signatures are genuine or authorized.

      . § 3-406. Negligence contributing to alteration or unauthorized signature.
      Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.”


author: Mqylan, J.,

text:
    JOSEPH JAMES JACOBS, JR. v. STATE OF MARYLAND
    [No. 610,
    September Term, 1975.]

      Decided September 10, 1976.

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

      James T. Smith, Jr., Assigned Public Defender, for appellant.

      Albert Gallatin Warfield, III, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and William S. Townsend, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Mqylan, J.,

delivered the opinion of the Court.

This case is controlled by the ever-widening, though logically foreseeable, ripples put in motion by Mullaney v. Wilbur, 421 U. S. 684 (1975), and In re Winship, 397 U. S. 358 (1970). The appellant, Joseph James Jacobs, Jr., was convicted by a Baltimore County jury of common law assault, the use of a handgun in the commission of a felony (to wit, assault with intent to murder) and malicious shooting with intent to maim. The issue is the constitutional propriety of a jury instruction on the question of self-defense and the necessary threshold question of whether self-defense was generated as a legitimate jury question.

In looking to that threshold question, we will consider the admissible evidence in the light most favorable to the appellant. Involved was a riotous fight between two groups of young men. According to the appellant and two of his witnesses, the incident occurred in the following fashion. The appellant and two friends were driving home in a green van along Eastern Boulevard. As they passed a red Mustang, they gratuitously yelled to the occupants of the Mustang something to the effect of “Move that crate.” Shortly thereafter, they stopped for a red light. The red Mustang pulled up next to them and one of the occupants, apparently stung by the earlier remark, got out and came to the passenger side of the van. As one of the occupants of the van rolled down the window, a fist came in and struck him in the face. Simultaneously a metal object struck the van. The van then moved away and proceeded along Eastern Boulevard. The red Mustang followed behind them and soon a large blue car pulled up beside them. The two cars in combination forced the van off the road. Ronald Rewers, one of the occupants of the van, pulled out a .25 automatic pistol, handed it to the appellant, and told him to use it if it became necessary. The van was forced off the road on a school driveway and was blocked by the two cars. The occupants of both cars got out and approached the van. Someone reached in and opened the door to the van. One of the occupants Of the van, Warren Smolko, was dragged out and was attacked. Several persons attacked the appellant. They beat him and kicked him as he was kneeling in the back of the van. He ultimately fired one shot in the air as a warning shot. He was then approached by one of the assailants who was carrying a baseball bat and appeared as if he was going to strike the appellant. The appellant shot him first. The baseball bat was found at the scene of the fight by the Baltimore County Police. After the fight, the appellant was badly bruised and bleeding all about the head and face.

One of the appellant’s witnesses stated that the attackers numbered “four or five guys,” out of the blue car alone, and that they approached the van carrying bats and clubs and a tire iron. The appellant testified affirmatively that he feared for his life and limb and fired only in self-defense. Although the jury was by no means obliged to accept this defense version of the fight as opposed to the State’s version, it was privileged to accept it. It was, by definition, a jury question.

It is unquestioned that one is privileged to use force, even deadly force, in self-defense if legitimately and reasonably in fear of suffering death or serious bodily harm. See generally LaFave and Scott, Criminal Law, 391-397; Perkins, Criminal Law (2nd Ed. 1969), 993-1012. No extended treatment of the law in this regard is necessary as neither the State nor the defense are at issue over this settled principle of law. Indeed, the trial judge gave a thorough and accurate explanation of the law respecting self-defense and all of the various situations which the jury must consider thereunder. At issue here, rather, is not the substance of that law but the allocation of the burden of proof on the issue of self-defense.

The critical instruction was as follows:

“You are instructed that self-defense is an affirmative defense, and as such, the Defendant carries the burden of proving it. However, the burden of the Defendant is not the same as the burden of the State to prove the guilt of the Defendant beyond a reasonable doubt and to a moral certainty. The Defendant bears the burden of proving his affirmative defense of self-defense only by a preponderance of the evidence. The phrase, “preponderance of the evidence” does not mean the quantum of witnesses or evidence on one side or the other; it means only that the Jury finds the evidence that the Defendant’s actions were taken in defense of his person more weighty and satisfactory than the countervailing evidence. If the Jury is satisfied that the Defendant’s evidence upon that point is more satisfactory than the countervailing evidence, then the Defendant has met his burden upon this particular point.”

The broad principle of In re Winship was that the due process clause requires the State to prove each and every element of a criminal offense beyond a reasonable doubt. Mullaney v. Wilbur was simply one of the many instances in which that broad principle of Winship might apply. The privileged use of force by way of legitimate self-defense would negate — by way of justification or excuse — a simple assault just as surely as it would an assault that results in an ultimate death and comes to us as a charge of murder or manslaughter. It would apply just as surely to all aggravated assaults at intermediate points between the extremes of simple assault and first-degree murder.

As Chief Judge Murphy made very clear for the Court of Appeals in State v. Evans, 278 Md. 197 (1976), the allocation of the burden of persuasion on self-defense in Maryland has been affected by Mullaney v. Wilbur:

“The court concluded in Evans that a jury instruction given in a homicide case which cast upon the defendant the burden of persuasion by a preponderance of the evidence when the issue of self-defense was raised by the evidence (see Wilson v. State, 261 Md. 551, 276 A. 2d 214 (1971)) was constitutionally defective under Mullaney since it shifted the burden to the defendant to prove justification or excuse for the homicide. We agree with that conclusion and therefore hold that all Maryland cases which contain contrary holdings are no longer valid precedents.”

This was very much in line with our broad reading of the Mullaney and Winship principle in Evans v. State, 28 Md. App. 640, at 673:

“Although a very narrow reading of Mullaney v. Wilbur could conclude that it dealt only with instructions, in a jury trial, on the subject of the allocation of the burden of proof on the question of ‘heat of passion on sudden provocation’ in a case where the issue before the jury was whether a guilty verdict should be for murder or only for manslaughter, such would be a grudging and unduly restrictive reading of this groundbreaking decision. A fairer reading makes it clear that what is involved is the broader question of the allocation of the burden of persuasion where a wrongful allocation of that burden will operate to relieve the State of its obligation under the Due Process Clause, as interpreted by Winship, to prove each and every element of a criminal offense beyond a reasonable doubt. This goes beyond the limited defense of mitigation and it goes beyond the limited confines of jury instructions.”

This section of our Evans v. State was quoted with approval by the Court of Appeals in their State v. Evans, supra.

Indeed, the Court of Appeals in State v. Grady, 276 Md. 178, 182, recognized the authority of both Mullaney and Winship for the principle that “the burden is on the State to prove all elements of the alleged crime . . . beyond a reasonable doubt.” In dealing with the defense of alibi, State v. Grady held that Winship and Mullaney “apply to the issue of who has the burden of proof and what that burden is when an accused relies on an alibi defense.” 276 Md. at 182.

In our Evans v. State, we analyzed at length the constitutional inappropriateness of placing upon a defendant the ultimate burden of persuasion with respect to what had been classified traditionally as “affirmative defenses.” We there said, at 707-708:

“This was the rule throughout much of the common law world with respect to the so-called ‘affirmative defenses.’ The defendant bore the ultimate risk of non-persuasion. If the minds of the jurors were in a state of equipoise on the existence or non-existence of self-defense, hot-blood, entrapment, etc., the defendant lost because he had not carried his burden of preponderating persuasion. Casting upon a defendant that sort of burden of ultimately persuading the jury of his innocence (by negating in one fashion or another the necessary criminal element of a guilty mind) was the thing condemned in Mullaney v. Wilbur and Winship. A presumption as conceived of by Morgan may still have some utility for civil trials, but in a criminal trial it cuts squarely athwart the due process requirement that the State prove every element of a crime (including mens rea) beyond a reasonable doubt.”

In affirming our decision in Evans, the Court of Appeals in State v. Evans, supra, cited with approval the broad interpretation of Mullaney v. Wilbur:

“[T]he Court of Special Appeals, in Evans, observed that in view of Grady and under the Mullaney decision itself, the principles of Mullaney were applicable to any defense theory of justification, excuse or mitigation, including self-defense, accident, intoxication, entrapment, duress or coercion, and necessity.”

Under these guiding principles, we hold that where self-defense has been fairly generated by the evidence as an issue in the case, the burden is upon the State of negating such self-defense beyond a reasonable doubt as a necessary element of its proof of guilt. The jury instruction in this case which placed the ultimate burden of persuasion on this issue upon the appellant was in error and, upon the facts of this case, prejudicial. The related offenses fall with the fall of the undergirding assault charge.

Judgments reversed; case remanded for anew trial.

Costs to be paid by Baltimore County.

      . In the exercise of our appellate discretion, we are willing to notice plain error in this case because the trial occurred on April 22 and 23, 1975, prior to the June 9, 1975, decision of the Supreme Court in Mullaney v. Wilbur. Squire v. State, 32 Md. App. 307, 360 A. 2d 443 (1976).