author: Thompson, J.,

text:
    DENNIS FURMAN BURKETT AND THOMAS CALVIN BURKETT v. STATE OF MARYLAND
    [No. 382,
    September Term, 1967.]

      Decided October 7, 1968.

    The cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Joseph K. Pokorny and Philip M. Sutley for appellants.

      William B. Brannan, Assistant Attorney General, with whom were Brands B. Burch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and Clewell Howell, Jr., Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Dennis Furman Burkett and Thomas Calvin Burkett, the appellants, were convicted of storehouse breaking, Md. Code Art. 27, § 32, breaking and stealing to the value of $5 or more, Md. Code Art. 27, § 33 and being rogues and vagabonds, Md. Code Art. 27, § 490 in a nonjury trial in the Circuit Court for Baltimore County. Each appellant was sentenced to two years for being a rogue and vagabond and eight years consecutively for storehouse breaking. The sentence for breaking and stealing was suspended generally as to each. On appeal it is contended that a hammer and a chisel were illegally seized, and therefore improperly admitted into evidence, and that the evidence was insufficient to support the convictions.

On January 16, 1967, police officers in Baltimore County were keeping a special watch on churches and synagogues on Liberty Road as a result of a burglary which had occurred at the Epworth Chapel Church located at the corner of St. Lukes Lane and Liberty Road on the preceding night. That burglary is not directly connected with the present appeal. At 3 :00 A.M. on the 16th Corporal Anthony Vitek, Jr. observed a 1955 red and white Ford -turn into the parking lot of the aforesaid church and make a circle therein. Although the vehicle was being operated in an apparently lawful manner the uniformed officer stopped it and requested the operator to show his operator’s license and registration card for the vehicle. The operator produced his operator’s license but could not produce a registration card. He stated that the vehicle belonged to one of the occupants of the car, Dennis Furman Burkett, one of the appellants, who together with the second appellant, was riding as a passenger in the vehicle on the front seat with the operator. A radio check of the tag number revealed that the tags were issued for another vehicle titled in the name of one Charles F. Grover. Dennis Burkett attempted to explain that he had borrowed the tags from his father’s station wagon and placed them on the car. Whereupon the officer informed them that they could not drive without a registration card; that they could not drive on fictitious tags and that the vehicle would have to be checked out as to ownership. The operator of the vehicle was instructed to drive it to the police station where the occupants locked the car and went into the station with the officers; the operator was issued an appropriate traffic summons. While at the station Dennis Burkett produced the title to the vehicle signed over to him by his brother, Jerry Burkett, whereupon he was issued a summons for permitting the operator, one Shuman, to operate the vehicle; after which the appellants and the operator were permitted to leave the station but the vehicle was kept until proper registration could be furnished. After the occupants of the car had left the station, Corporal Vitek reported to Detective Robert H. LeCain, Jr. that when he had stopped a car the night before and arrested the occupants for motor vehicle violations, he had observed on the floor of the car, immediately behind the driver’s seat, brown gloves, a screwdriver, a lug wrench, a carpenter’s hammer and other miscellaneous tools, and that he thought Detective LeCain would be interested in observing the vehicle at the station. After Detective LeCain looked through the window of the car and observed two crowbars, a wrench, a claw hammer, some tire irons, screwdrivers and chisels and three or four pairs of gloves, he obtained a search warrant for the vehicle and removed the tools that were visible through the window as well as other tools that were in the trunk of the car.

A duly qualified agent of the Federal Bureau of Investigation made a comparison of a hammer which was removed from the rear floor of the car and a chisel which was removed from the trunk of the car with tool marks on a safe that had been taken from Dave’s Court Lane Service Station in a breaking and entering which had occurred on January 11, 1967. The agent testified that the tools were the identical ones that had been used in opening the safe. On cross-examination of Detective LeCaiu it was brought out that, in his questioning of Dennis Burkett, Dennis had stated that the tools were his and that he used them in his carpentry work, but that he had been unemployed for eight months. Although neither of the appellants testified, their brother, Jerry Lee Burkett, testified that he broke into the gas station alone and that he carried the safe to the car by himself. He further testified that the tools belonged to him. In his finding of fact the trial judge stated that he did not believe that portion of the testimony of Jerry Burkett when he stated that he had committed the crime without assistance.

Appellants contend that the search warrant was defective, but only because it was the fruit of the illegal stopping of the vehicle in the first instance. They allege that Md. Code Art. 66^4, § 97 permitting a uniformed police officer to inspect a motor vehicle operator’s driver’s license and Md. Code Art. 66J4 § 31 permitting a uniformed police officer to inspect the registration card which must be carried by every motor vehicle operator are not valid unless the operator has committed some traffic or other violation of law to justify the initial stopping of the vehicle. They cite no authority in the argument but allege that all of the Maryland cases approving the statutes have done so on the basis that the officer observed a violation of law prior to the initial stopping.

In Bradley v. State, 202 Md. 393, 96 A. 2d 491 in discussing this problem the Court pointed out at page 493:

“By Chapter 1007, of the Laws of Maryland of 1943, Article 66^4, Section 96, [now 97] 1951 Code, the hereinbefore quoted Act was repealed and re-enacted in substantially the same form but there was omitted the provision ‘provided that no operator of a motor vehicle shall be stopped by any officer for the sole purpose of exhibiting his operator’s license.’ ”

This would clearly indicate a legislative intent the statute was not limited as here contended. In that case, however, it was true that the officer did observe a traffic violation prior to the stopping of the vehicle and the stopping was approved even though the operator was subsequently acquitted of the traffic charge. Since the officer believed that the vehicle was being operated on the wrong side of the road he had reasonable grounds to stop it.

In Sharpe v. State, 231 Md. 401, 190 A. 2d 628 the Court also approved a stopping where there was a traffic violation involved.

In Shipley v. State, 243 Md. 262, 220 A. 2d 585 police officers were held justified in approaching a parked vehicle and in making an arrest when they saw a concealed weapon within the vehicle, saying at page 587:

“It has long been recognized that in an appropriate environment and under appropriate circumstances if it is reasonably necessary to enable a police officer to determine whether a person’s conduct is unlawful, he may accost or stop that person and in the process may seek the citizen’s identity and his cooperation and may verify the information given him.”

In Cornish v. State, 215 Md. 64, 137 A. 2d 170, on information received from the Commissioner of Motor Vehicles that Cornish’s operator’s license had been revoked, a vehicle which he was operating was stopped and when he opened the glove compartment to display his driver’s license police officers observed lottery tickets. When he displayed the license a police remarked that the license had been revoked and Cornish promptly replied “That’s right.” In holding the arrest legal the Court said at page 173:

“If Cornish had not stopped, and answered the questions asked him, he might have been immune from valid arrest, as was pointed out in the Blager case. [162 Md. 664, 161 A. 1]. He chose to stop and give the answers requested and, in so doing, revealed the commission of a misdemeanor to the police. This being so, he was lawfully arrested and the evidence seized as a result of that arrest was admissible.”

We think the reasoning of Cornish controls the present case. Although here the police officer did not have specific information as in the Cornish case, the evidence shows that the operator did stop and did reveal that he was operating the vehicle without a registration card and with improper tags which at that point justified his arrest and the impounding of the vehicle until its ownership could be determined. Compare Michaels v. State, 2 Md. App. 424, 234 A. 2d 772. Since the arrest was lawful and a search warrant had properly been issued, the tools were properly admitted.

Sufficiency of the Evidence to Support the Convictions for Breaking

The appellants concede that the rule is well established in Maryland that in the absence of a satisfactory explanation the exclusive possession of recently stolen goods permits the drawing of an inference of fact, sufficient to sustain a conviction, that the possessor was the thief or the burglar; but they argue (1) that this rule should not apply to the possession of the tools of the burglary (2) that here the possession was not recent and (3) that the possession was not exclusive.

We are unable to see any logical distinction between the possession of goods which were proven to be the identical goods that were stolen and the possession of burglary tools that were proven to be the identical tools used in the commission of a burglary. This conclusion is supported by all cases that have come to the Court’s attention, State v. Bales, 68 N. W. 2d 95 (Iowa) ; State v. Bell, 115 N. W. 2d 468 (Minn.) ; Pressler v. Warden, 178 N. Y. S. 311 (Sup. Ct.) ; Wilborne v. Commonwealth, 28 S. E. 2d 1 (Va.).

In Gamble v. State, 2 Md. App. 271, 234 A. 2d 158 this Court reviewed the authorities and held that the possession of stolen goods more than five months after the theft was recent. In Cason v. State, 230 Md. 356, 187 A. 2d 103 the Court of Appeals found possession more than four months after the theft to be recent. In Anglin v. State, 1 Md. App. 85, 227 A. 2d 364 we found that possession six months after the theft was recent. In these cases, and in others, the rule laid down is that recent is a relative term, and must be applied to the facts of each particular case. What is exclusive possession is also relative. In Bury v. State, 2 Md. App. 674, 236 A. 2d 751 we held that the exclusive possession could be the joint possession of several people saying at page 753 :

“The Court of Appeals has held in similar factual situations that the occupants of a car are considered jointly in possession of stolen goods found therein. In Pointer v. State, 239 Md. 641, 212 A. 2d 260, the accused was held to be in possession of stolen goods found in an automobile thirty feet from where he was found hiding, and from which automobile police officers had seen three unidentified persons flee. In Carter v. State, 236 Md. 450, 204 A. 2d 322, passengers in an automobile were convicted of possessing bags of heroin which had been discovered under the right front seat of the automobile. In Shipley v. State, 243 Md. 262, 220 A. 2d 585, three occupants of an automobile were held to be in possession of various weapons and tools found in the automobile. And in Wright v. State, 222 Md. 242, 159 A. 2d 636, it was held that all three of the defendants were in joint possession of burglary tools found in the trunk of the car occupied by them.”

In Matthews v. State, 237 Md. 384, 206 A. 2d 714 the Court of Appeals found the possession to be exclusively in one of the two appellants; the evidence showed that a check was discarded by one of the suspects, and there was no evidence to indicate that it had ever been in possession of the other. In varying factual situations this Court has sustained convictions based on exclusive possession of stolen goods, Anglin v. State, 1 Md. App. 85, 227 A. 2d 364; Bury v. State, supra; Grimes v. State, 4 Md. App. 607, 244 A. 2d 456; Wilkins v. State, 4 Md. App. 334, 242 A. 2d 808, and in other cases we have found that the possession was not exclusive, Hickman v. State; 1 Md. App. 578, 232 A. 2d 282; Allen v. State, 2 Md. App. 298, 234 A. 2d 485; Boblits v. State, 4 Md. App. 534, 243 A. 2d 891. The rule to be applied in such cases was stated in Anglin v. State, 244 Md. 652, 224 A. 2d 668, 670 as follows:

“The reasonableness and legality of permitting an inference of fact that exclusive recent and unaccounted for possession is a guilty possession is explained by the rule that there may be drawn an inference of one fact from proof of another or others if there is some rational connection between the fact or facts proved and the ultimate fact inferred so that the inference drawn from the proof is not so far-fetched as to be arbitrary.”

The Supreme Court has approved a similar rule. In United States v. Gainey, 380 U. S. 63, 85 S. Ct. 754, 13 U. Ed. 2d 658 the Court upheld a statutory presumption that one found at an illicit still was presumed to be engaged in “carrying on” an illegal distillery operation; but in United, States v. Romano, 382 U. S. 136, 86 S. Ct. 279, 15 L. Ed. 2d 210 the Court held unconstitutional a statutory presumption that one found at an illicit still was in “control” of the still.

Applying these rules to the facts of this case, we find the conviction of Dennis Furman Burkett valid, and the conviction of Thomas Calvin Burkett invalid. The evidence showed that Dennis Furman Burkett was the assignee of the title to the car which contained the appellants and the tools used in the breaking. When questioned by the police he claimed ownership of the tools. On the other hand the only evidence to connect Thomas Calvin Burkett with the tools was that he was a passenger in the car several days after the crime had been committed. We do not think that this fact alone is sufficient under the circumstances of this case to support his conviction. An entirely different case may have been presented if the appellants had been found in the car with the tools a few hours after the crime had been committed. See Bury v. State, supra.

Sufficiency of the Evidence to Support Convictions for Rogue and Vagabond

The indictment in the present case charged the appellants with being rogues and vagabonds on January 11, 1967 but the trial judge, relying on a line of cases holding that error in charging the date of a single offense is ordinarily deemed harmless, Chisley v. State, 236 Md. 607, 203 A. 2d 266 (1964) ; Fulton v. State, 223 Md. 531, 165 A. 2d 774, 775 (1960); Greenwald v. State, 221 Md. 245, 157 A. 2d 119, 123 (1960) ; Novak v. State, 214 Md. 472, 136 A. 2d 256, 259 (1957); Mazer v. State, 212 Md. 60, 127 A. 2d 630, 634 (1956), specifically found the appellants guilty of being rogues and vagabonds by reason of possession of burglary tools on the night of the arrest, January 16th. We do not think those cases are applicable to the present situation where two separate crimes could have been involved. The indictments showed that the appellants were called upon to face a charge of being rogues and vagabonds on the night of the burglary. They could well have been misled when at the trial they were called upon to defend themselves against being rogues and vagabonds on the night of the apprehension some six days later, in the recent case of Cromwell v. State, 4 Md. App. 540, 243 A. 2d 643, Cromwell was charged with setting off a false fire alarm at a particular hour; the evidence disclosed that he had set off three separate alarms that same evening and it was not shown that the last alarm (which occurred at the hour specified in the warrant) was false. We reversed. We think the reasoning of that case controls the present case and that where there are multiple crimes it is essential that the indictment inform the accused prior to trial which crime he is called upon to defend. See Corbin v. State, 237 Md. 486, 206 A. 2d 809, 811 (1965); Pearlman v. State, 232 Md. 251, 192 A. 2d 767, 771 (1963) ; and Charles v. State, 1 Md. App. 222 at 227, 228 A. 2d 620 (1967).

Judgments reversed as to Thomas Calvin Burkett and case remanded for a new trial.

Judgments affirmed as to Dennis Furman Burkett on the first (Storehouse Breaking) and third (Breaking and Stealing) counts of the indictment. Judgment reversed and case remanded for a new trial with reference to- the conviction under the fourth count (Rogue and Vagabond) of the indictment.

      . The search warrant also contained other information which we need not detail in the absence of a direct attack on the warrant.

        . The correct citation is Pointer v. State, 338 Md. 23, 207 A. 3d 611.

      . We do not consider the testimony of Jerry Burkett. It is noted that the trial judge stated that he did not believe all of this testimony. In reviewing the sufficiency of the evidence we must consider the evidence in the light most favorable to the state. Maryland Rule 1086.


source: Caselaw Access Project

author: Orth , J.,

license: Public Domain

text:
    DONALD ELWOOD BARNHART v. STATE OF MARYLAND
    [No. 10,
    September Term, 1968.]

      Decided October 7, 1968.

    The cause was argued before Murphy, C.J., and Anderson, Orti-i, and Thompson, JJ.

      Howard W. Gilbert for appellant.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, David K. Poole, Jr., State’s Attorney for Washington County, and Lynn F. Meyers, Assistant State’s Attorney for Washington County, on the brief, for appellee.
   Orth , J.,

delivered the opinion of the Court.

The appellant was found guilty by a jury in the Circuit Court for Washington County of breaking a storeroom with intent to steal goods of the value of $100 or more and sentenced to imprisonment for an indeterminate period not to exceed three years. At his trial a confession made by him to the police during a custodial interrogation was admitted in evidence.

“The practice in this State, approved in many cases, is that the court first hears evidence without the jury to determine whether a confession is voluntary and should he admitted. If it decides to admit it, the same evidence is then given to the jury, as it has the final determination, irrespective of the court’s preliminary decision, whether or not the confession is voluntary, and whether it should be believed. Tn so doing the jury is entitled to have before it all of the evidence which affects the voluntary character of the document, and which the court passed upon in admitting it.” Day v. State, 196 Md. 384, 399.

See Peters and Demby v. State, 187 Md. 7, 15; Smith v. State, 189 Md. 596, 603; Hall v. State, 223 Md. 158, 169; Davis and Peterson v. State, 1 Md. App. 581, 585. Thus the court has the preliminary decision whether or not the confession was voluntary and the trier of facts has the final determination whether or not it was voluntary and whether or not it should be believed. The function of the court as to the preliminary decision is separate and distinct from the function of the trier of facts (the jury in a case tried by it or the court in a case tried by the court sitting without a jury) as to the ultimate determination. It was established as early as 1873 that the question as to whether a confession is admissible in evidence is for the court alone, Nicholson v. State, 38 Md. 140, 155-156 and the rule has been reaffirmed in numerous cases thereafter. See cases cited in Linkins v. State, 202 Md. 212, 221. The Court said in Linkins, at 221-222:

“Admissibility does not signify that the evidence admitted has demonstrated or proved the fact to be proved, but merely that it is received by the tribunal for the purpose of being weighed with other evidence. Admissibility falls short of proof. The rule of law uttered by the judge, merely declares what is sufficient to go to the jury. The jury ultimately decides upon the total effect we call proof.”

The preliminary decision by the court, therefore, involves a mixed question of law and fact. In reaching this preliminary decision the court need not find beyond a reasonable doubt that the confession was voluntary. The only duty of the trial court at this point is to decide whether the prima facie proof was such as to establish that the confession was freely and voluntarily made. Ralph v. State, 226 Md. 480, 487.

“Before a confession can be admitted in evidence, the State must show, to the satisfaction of the court, that it was the free and voluntary act of an accused; that no force or coercion was exercised by the officers obtaining the confession, to cause the accused to confess; that no hope or promise was held out to an accused for the purpose of inducing him to confess. [And as to confessions obtained by a custodial interrogation in cases, the trial of which began after the decision on 13 June 1966 in Miranda v. Arizona, 384 U. S. 436, that the procedural safeguards therein enunciated were employed. See Gaudio and Bucci v. State, 1 Md. App. 455]. If after a consideration of both the evidence of the State and the evidence offered by an accused (if any be offered by him) regarding the matter, the court is of the opinion that the evidence shows, prima facie, that the confession was freely and voluntarily made, it should be admitted in evidence; and if not it should be rejected.” Smith v. State, supra, at 603: Quoted with approval in Linkins v. State, supra, at 222 and Hall v. State, supra, at 169; cited in Ralph v. State, supra, at 487. See Robinson v. State, 3 Md. App. 666, 670-671; cited in Wiggins v. State, 4 Md. App. 95, 105.

On the other hand the ultimate determination by the trier of facts is a question of fact and the confession must be found to be voluntary beyond a reasonable doubt.

“When admitted in evidence it is prima facie proof that the confession was freely and voluntarily made, but the ultimate fact is for the jury, and must be considered by it in the light of all the facts and circumstances of the case. If the jury, notwithstanding the confession is admitted, finds that from all the testimony in the case it has not been proved beyond a reasonable doubt that it was the free and voluntary expression of the accused, it should disregard the confession in the consideration of the guilt or innocence of the accused. If they do find that the proof shows beyond a reasonable doubt that the accused freely and voluntarily made the same * * * they should consider it, together with all the other facts and circumstances in evidence, in arriving at the verdict.” Linkins v. State, supra, at 223 (emphasis supplied).

So the preliminary decision of the court as to the admissibility of the confession, made within the required constitutional framework, will not be disturbed on appeal unless there was a clear abuse of discretion. Cunningham v. State, 247 Md. 404; Robinson v. State, supra, at 671; Carrington v. State, 1 Md. App. 353. But the ultimate determination by the trier of facts as to whether or not the confession was voluntary is reviewed on appeal by applying the tests as to the sufficiency of the evidence. See Plumley v. State, 4 Md. App. 671; Tillery v. State, 3 Md. App. 142; Agresti v. State, 2 Md. App. 278; Hutchinson v. State, 1 Md. App. 362; McPadden v. State, 1 Md. App. 511. Of course, whether or not the confession should be believed, goes to the weight of the evidence and the credibility of the witnesses which are matters for the trier of facts. Gibson v. State, 4 Md. App. 222; Thompson v. State, 4 Md. App. 31; Sadler v. State, 1 Md. App. 383.

A defendant’s constitutional rights are violated when his challenged confession is introduced without the preliminary decision by the trial judge of its voluntariness after an adequate hearing. Jackson v. Denno, 378 U. S. 368. Since a confession by the defendant found not to be voluntary by the trial judge is not to be heard by the jury which determines guilt or innocence, the best practice is to hear evidence on the preliminary question out of the presence of the jury and the Court of Appeals has recommended such practice. Smith v. State, siupra, at 606. The Supreme Court has also found that it is prudent to do so. Pinto v. Pierce, 389 U. S. 31. But both Smith and Pinto hold that if the confession was properly admitted it is not reversible error because the testimony on the preliminary hearing was taken in the presence of the jury; the jury were entitled to have and consider all the evidence regarding it so no harm was done to the defendant. However it would be reversible error in such circumstance if the confession was inadmissible even though it was excluded and the jury instructed not to consider it as part of the evidence as knowledge of the confession by the jury is apt to unduly influence its deliberations to the extent of depriving the defendant of a fair and impartial trial. Smith v. State, supra, at 606.

In the instant case testimony as to the voluntariness of the confession, offered by the State and the appellant, was first properly taken out of the presence of the jury. At the conclusion of the evidence on the issue the court ruled that the confession was admissible. The court then said to the jury :

“Now ladies and gentlemen, the procedure we have had here, whenever the State wants to offer any written or oral statements made by any Defendant, it is incumbent upon the State to prove beyond a reasonable doubt that that statement was freely and voluntarily given and under our procedures in Maryland, we first hear the testimony outside of your presence and the Court rules as to whether or not the evidence is sufficient and the Court has heard the testimony and has so ruled, but I admonish you and warn you that you being the Judge of the law and the facts, we will repeat everything that took place in your absence and you will make the final decision as to whether you think this statement was freely and voluntarily made and I will advise you further in that before you retire for your deliberations.”

Evidence as to the voluntariness of the confession was then presented to the jury. At the conclusion of that evidence the State offered the confession. The court said in the presence of the jury :

“Eet the record show this that the Court overrules the objection for the admission as the Court is of the opinion that the testimony shows conclusively that it was freely and voluntarily given, but I say at the same time, the Jury passes — you are the ones to pass on it. You don’t have to pay attention as to what I feel about the law. It is rather an incongruous thing. The law says that we pass on these things preliminarily but you pass on them at the end. That is what we have to do.
I would say here that the attack made on the voluntariness of it, so that you will know and 'if I forget this in my charge, that there was some statement made that the Defendant, Donald Barnhart, had asked for-an attorney, but in the opinion of the Court, if he had, ■ the Officer’s testimony is to the contrary, but if he had why when he made this waiver, he had made no subsequent request for an attorney and his testimony is that he very freely and voluntarily gave this statement.”

At the conclusion of all the evidence in the case the court instructed the jury. It pointed out that an accused cannot be convicted on the uncorroborated testimony of an accomplice and stated that the only corroboration of an accomplice who testified against the appellant “would only be in the statement he made incriminating himself. There is no other evidence here because there is no testimony that he was on the premises, or no other incriminating evidence of any kind except the accomplice, other than his own.” As to the voluntariness of the confession the court instructed:

“And in considering the case, you will have to decide whether or not the statement that he gave is freely and voluntarily given. He takes the stand and says —I just don’t know exactly what his position is. He didn’t say in so many words, but I take it that he wasn’t advised of his rights as to having an attorney present. And he said something about having Mr. Hovermale (his attorney) present. Now if you believe that that wasn’t done, why then the statement wouldn’t have been freely and voluntarily given and this is one of the elements of the crime — beyond a reasonable doubt — the same as anything else.”

Later in the instructions the court said:

“And the aspects of a free and voluntary statement means that several things are involved. You must be told — you have a right to remain silent. If you don’t remain silent, everything you say can be used against you. Third, you don’t have to say anything without the right to secure counsel. If you don’t have counsel, the State will appoint counsel for you before you have a right to say anything. And the State now, under a recent Supreme Court Decision must show that all four elements have been satisfied before any statement is admitted. Now, there has been a waiver here showing that the State entered evidence to establish that it was freely and voluntarily given and this Court has ruled that it was, but that is a decision for you to make.”

We do not think that the instructions of the lower court were adequate in the light of its remarks to the jury upon finding that the confession was admissible and in overruling the objection to its admission. We feel that the jury could have concluded therefrom that the court had found beyond a reasonable doubt that the confession had been freely and voluntarily made. But this was for the determination of the jury, not the court. The court did tell the jury that they had the ultimate decision as to whether the confession was freely and voluntarily made beyond a reasonable doubt. In the circumstances, however, the court should have made clear to the jury that its rulings merely declared that evidence produced before the court was sufficient to have the confession go to the jury; that the admission of the confession did not signify that it was thereby demonstrated or proved to be freely and voluntarily made beyond a reasonable doubt, admissibility falling short of such proof as being based only on prima facie proof; and that the ultimate determination of the jury as to voluntariness was to he only on evidence and rational inferences therefrom before them. We believe that the comments to the jury were in substance erroneous and that the instructions did not sufficiently clarify the matter. We think that the jury was apt to have been unduly influenced thereby in its deliberations to the extent of depriving the appellant of a fair and impartial trial. Therefore the judgment must be reversed and a new trial granted.

In view of our holding we do not consider other questions presented.

Ju~dgiiient reversed; case remanded ~or a new trial.

      . Carlton Bee Mitchell, Jr. and Clyde Edward Barnhart were indicted with the appellant. Mitchell pleaded guilty. Clyde Barn-hart was tried with the appellant and found guilty. Each was given an indeterminate sentence of five years which was suspended on conditions imposed.

      . The rule is also applicable to a case tried without a jury. There the court has the preliminary decision leaving the ultimate determination to the court as the trier of facts. Ralph v. State, 226 Md. 480, 487.

      . In Pinto, the Court notes that, in addition, there was no claim that because the hearing was held in the presence of the jury it was inadequate or had any other unfair consequences for the defendant and that the defendant did not object to having the voluntariness of his confession considered in the presence of the jury

        . The record does not disclose that objection was made to the comments or instructions on this point, but we take cognizance of the matter of our own motion. Md. Rules, 756g.


text:
    JAMES MILTON HARDING v. STATE OF MARYLAND
    [No. 367,
    September Term, 1967.]

      Decided October 9, 1968.

    The cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Bilis H. Goodman and Jerome A. Loughran, Jr., for appellant.

      David T. Mason, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Richard J. Kinlein, State’s Attorney for Howard County, Neil Helfrich, Assistant State’s Attorney for Howard County, and Robert S. Fertitta, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

James Milton Harding, the appellant, appeals from convictions for assault with intent to rape and assault with intent to murder in a jury trial in the Criminal Court of Baltimore, Judge James A. Perrott presiding. He was sentenced to a term of 20 years on the assault with intent to rape charge and to a consecutive term of 15 years on the assault with intent to murder charge.

There was evidence from which the jury could find: On Sunday, September 18, 1966, at approximately 5 :00 P.M., Harding 'met Mildred Coley, the prosecuting witness, in a bar in Baltimore City. Subsequently, they joined Barbara Miles and Robert Dee Sanders, and all four of them drank and rode around the city in Sanders’ car until approximately 8:30 P.M. when they left to go to Howard County. Mildred Coley was not previously acquainted with any of the other three persons. En route to and in Howard County, they made several stops. Mildred sat in the front seat of the car with Barbara and Sanders, while Harding sat in the back seat alone. Harding became angry and argued with Mildred because of her refusal to sit in the back seat with him and her refusal to have sexual relations with him. Eventually, Harding told Mildred he had a gun and he was going to have sexual relations with her before she left the car. Mildred told Harding that “If you put your damn hands on me, I’m going to cut you.” After making this statement, Mildred opened her purse to get a face sponge, and when she turned in the direction of Harding, he shot her. She had no weapons. After the shooting Sanders wanted to call the rescue squad or take Mildred to the hospital; however, Harding, with gun in hand, ordered him to drive to Mayfield Avenue, a back road in an isolated area of Howard County. Harding removed Mildred, who was unconscious and presumed dead, and placed her on the side of the road. After returning to the car, Harding directed Sanders to drive to Club Vegas near Fort Meade, and then to Club 1630. At this club, Harding met his brother, Charles B. Harding. Barbara, who lived in Baltimore, left the club with some friends, while Sanders and Harding left together. Sanders drove Harding home and was followed by Harding’s brother in his station wagon. When Sanders left he observed Harding get into his brother’s station wagon.

On Monday, September 19, 1966, at approximately 7:15 A. M. State Trooper William J. Foxwell, in response to a complaint, found Mildred lying four or five feet off the traveled portion of Meadow Ridge Road in Howard County, which was two or three miles from the spot where she had been placed after being shot. She was in a state of shock, wearing only a black dress, with her undergarments beside her. She was taken to St. Agnes Hospital where an emergency operation was performed on her chest. Further examination disclosed spermatozoa in her vagina.

Initially, Mildred was questioned by Trooper William George who testified as follows :

“Q. You said that the first time you interviewed the victim she indicated she had been raped by whom ?
“A. She told me three colored males. She had been abducted from Baltimore City at knife point, taken into the County, raped and stabbed.
“Q. Now, the second time you visited her in the hospital you inquired of her again, and what did she tell you ?
“A. Essentially — Well, by this time we knew she hadn’t been stabbed. In fact, she had been shot. During both of these periods she appeared to be in shock or going into shock. Both of these times were before she was operated on and only an Emergency Room type investigation of her wounds had been made. On the second occasion, after receiving the description of the car and knowing this person Robert Lee Sanders, a picture of him was taken and shown to her.
“Q. Then what did you do ?
“A. After she positively identified this picture, then Robert Lee Sanders was' later in the afternoon arrested and taken to the Barracks for investigation.”
!|s *
“Q. You said then you visited the victim a third time and the third time the situation changed again. What happened there ?
“A. At this particular time, which happened to be on 9/21 at two p.m., she was visited in the Intensive Care Unit of St. Agnes Hospital and talked to thoroughly, and it appeared evident that this girl could not remember certain parts of what had happened to her. She would take us all the way up to the point where she had been shot. She would go on to the point where she was put out of the car and then she told me she couldn’t remember anything. Her mind had cleared to the point where she knew who had shot her. She knew who was with her and she knew the complete description of the automobile.”

On October 12, 1966, upon being released from the hospital, Mildred was taken to the Waterloo Police Barracks where she was put under hypnosis by Ralph P. Oropolo, Chief Clinical Psychologist at Clifton T. Perkins State Hospital. While under hypnosis, and without prompting, Mildred was able to recall events that had occurred after she was shot. On the witness stand she testified as follows:

“Q. Do you recall anything that was said to you while you were under hypnosis ?
“A. Anything was said to me? Yes, when I was yes. . .
“Q. When you were hypnotized, you recall what was said to you ?
“A. What had really, what had blanked out in my mind all came back to me.”
;{C í|< j}S
“Q. Then when you awakened from this sleep they told you what you had said while you were asleep ?
“A. No, I told them what happened after I woke up. I was awake.”
* *
“Q. Did anybody talk to you when you awakened from this trance ?
“A. Yes.
“Q. Who?
“A. Trooper George.
“Q. What did he say to you?
“A. He asked me how was I feeling. He say ‘How does it feel to be hypnotized?’, and 1 told him it was a nice sleep.
“Q. What else did he say ?
“A. He asked me questions what happened between Harding and I and I could answer them then, things I couldn’t answer before. It all came back to me.
“Q. Were you told what happened and then it came back to you ?
“A. No, I wasn’t told what happened and it came back to me. When I was asleep it all came back to me and I told them what happened when I wTas awake.”

In addition, she identified Harding as the person who shot her, and she also testified that while she was lying on the side of the road, she saw a vehicle approaching which looked like a bread truck or station wagon. The vehicle stopped and Harding picked her up and threw her into the back of the vehicle and drove off. On arrival at another location, he threw her on the ground between an old house and a tree. He then unzippered her dress as she passed out. When she regained consciousness, she noticed that all of her clothes had been removed except her dress, that she tried to stand but was too weak, so she dragged her clothes with her and scrambled to the highway. Mildred also testified that when she regained consciousness, she “realized that he had sex with me.”

Harding did not testify. His brother admitted that he had a station wagon and was at Club 1630 where he saw Harding on the night in question but denied that Harding used his car.

Harding contends that the testimony of Ralph P. Oropolo, the psychologist, and the testimony of Mildred Coley with respect to the assault with intent to rape were not admissible; and the evidence was insufficient to support the conviction for this crime.

The objection concerning the testimony of Oropolo was as to his qualifications. The record discloses that he has a Master’s Degree in Psychology and has pursued work on his doctorate. He is Chief Clinical Psychologist at Clifton T. Perkins State Hospital and a lecturer at the Institute of Correctional Administration, American University, Washington, D. C. He was formerly staff psychologist at Crownsville State Hospital and has been employed as a consulting psychologist by .several law enforcement agencies and state’s attorneys’ offices in Maryland and other states. In addition, he has qualified to testify in court as an expert in the field of psychology in Baltimore City and several counties in Maryland. In his training and education as a psychologist, he was familiarized with hypnosis or hypnotherapy as a form of treatment. The record further disclosed that hypnosis is used as an analytical tool and technique by psychologists and the medical profession, as a form of therapy, and as a means of assisting patients to recover lost memory. During the past four years, Oropolo has used the technique of hypnosis, and he has also used hypnosis under circumstances similar to those in the case at bar. Harding’s objections to the qualifications are based primarily on the fact that Mr. Oropolo did not graduate from any school of hypnotism. The Court of Appeals in the case of Hewitt v. Maryland State Board of Censors, 243 Md. 574, 221 A. 2d 894 held that the admission of expert testimony is primarily a matter for the trial judge to decide. But the opinion makes clear that formal training is unnecessary so long as the record demonstrates that he is possessed “of any knowledge or information which would elevate his opinion above the level of conjecture or personal reaction,” Hewitt, supra at 221 A. 2d 902. The formal training in hypnosis which was provided in Mr. Oropolo’s education as a psychologist and his use of hypnosis for four years indicates to us that the trial judge quite properly admitted his testimony.

The admissibility of Mildred Coley’s testimony concerning the assault with intent to rape case causes no difficulty. On the witness stand she recited the facts and stated that she was doing so from her own recollection. The fact that she had told different stories or had achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide. Borman v. State, 1 Md. App. 276, 229 A. 2d 440, Carroll v. State, 3 Md. App. 50, 237 A. 2d 535, Thompson v. State, 4 Md. App. 31, 240 A. 2d 780.

The sufficiency of her evidence to support the verdict requires more elaborate discussion. We will begin by quoting extensively from the testimony of the psychologist.

“Q. Mr. Oropolo, 1 wonder if I could ask you to step down to this blackboard and illustrate to the Jury exactly what you accomplish by hypnosis.
“A. Hypnosis is really — takes no great feat. Essentially anyone can do it, despite what appears to be a very mysterious kind of process. All that is involved in inducing a person into hypnosis is a very boring voice and monotonous repetition of words. Any of us can do it. The other thing that is necessary is a certain amount of willingness on the part of the individual, because hypnosis is essentially a very conscious type activity because you are asking the individual to focus on something or asking an individual to listen to something, and if he doesn’t want to, he can look some place else and intentionally distract himself. So, a great amount of willingness is necessary on the part of the individual being hypnotized, so you don’t have somebody under your power, so to speak. This is not quite accurate and you do require a certain amount of conscious participation by the individual. What happens in hypnosis, or what is involved, you are reducing a certain amount of consciousness. For instance, all of you see everything going on in here, but there are different degrees of things you are consciously aware of. Because I am speaking and standing here, you are more conscious of me than other people in the courtroom. There are levels of consciousness with respect to certain things in particular areas. In hypnosis what we try to do is try to reduce the number of things that distract a person and try to get the person to focus on a certain thing. In this way more details can be impressed upon the person. For instance, if T were to direct your attention to the blackboard and you are reducing your consciousness of me even more so and I would ask you to give the details of this blackboard, you could do it fairly well. If I didn’t direct your attention to the blackboard, the amount of details would be somewhat reduced. In a sense you might say you are sort of hypnotized there. Because of focusing you are reducing your external or outward stimulations. We get an individual to focus all his stimulus on an object, neutral, that has no consequence as a means of reducing or removing consciousness or awareness of other things. What I usually do, the instrument I use is just a thumbtack pinned into a wall, that is shiny, or I may use a spiral type thing, something like this. This is what the novice uses, but the essential element is that the person is able to focus on a relatively neutral object for the purpose of reducing all outward influences. The reason for this is in recovering memory what happens is — let’s kind of try to divide the mind something like this: this being the conscious part. What I mean by conscious, this is the part that makes us aware of who we are, of the courtroom of people. These are all various stimulations that come in from without and you are consciously aware of it. There may be other material that will come through, but go down here. Might say this is sort of unconscious, wherein we can’t really deprive the stimulation from coming through. We can refuse to acknowledge it and its presence here because it is rather painful to us, rather traumatic to us, what have you, but we cannot prevent it from coming in but prevent it from acknowledgment. You might be in a social setting with maybe three or four people on a walk. There is somebody you dislike a great deal. You can’t refuse to let him be present but you can refuse to talk to him. You are refusing his physical presence. The same thing happens essentially with respect to certain stimuli or certain things that occur to us. We cannot prevent them from occurring but we can refuse to acknowledge. That goes through this area of consciousness and gets hurried down here in the unconscious. You might regard it as a basement; everything gets thrown down there you don’t want. By hypnosis, by compelling a person to focus on one stimulus what you essentially do is his area of consciousness becomes limited. So, the only thing the person is conscious of is this one stimulus, the thumbtack in the wall, or the spiral or the clinician’s phrase telling him you are getting tired, getting sleepy, all this other stuff is kind of eliminated. With the elimination of all this extraneous material you can help the patient to focus their stimulus on occurrences or events that went right through and as a result of reducing the conscious influence which kind of acts as a distraction, this barrier a little bit, so now you don’t have all this conscious stuff acting as a conscious influence and reinforces the barrier between the conscious and the unconscious. You leave the mind fairly clear to focus on this one subject and as a result quite frequently you can have the subject come back into conscious awareness. Whether you can do this or not depends how far down the material is, how long ago it happened, so forth, by the determination the material the conscious did not want to acknowledge, although it occurred, to come back into acknowledgment, into awareness. This is essentially what happens on hypnosis, theoretically.”
“Q. Mr. Oropollo, [sic] when you bring this information from the subconscious to the conscious level of the mind through hypnosis, is the revelation of that information reliable ?
“A. It depends what the information is. If it is something that again involved a personal or vital interest to the individual, it may not be. What I mean by personal and vital; let me give an example. Let’s say you have an individual who is, has very, very strong homosexual tendencies or let’s say he is a homosexual and consciously denied it. If you put him under hypnosis and try to elicit this kind of admission from him, there is a good possibility, or to have him act it out, there is a good possibility he may say he is not or he doesn’t do it or what have you. Again, depends on what is of vital interest to the individual or what emotional or psychological danger it would submit him to.
“Q. Is a person under the hypnotic influence of the clinical subject to suggestion by him of answers or stories to questions that he might ask him ?
“A. In my own experience I seriously doubt suggestibility in the way we think of, in that you have an influence and the person subjects himself to your influence. The person, is suggestible to the extent that the condition or the subject that it allows him to discuss this thing or act out this thing or behave this way, but in a way it is no more suggestible than I ask you to hand me that paper you will willingly do it. To that extent you are suggestible. I ask you to do something and you do it. There is no threat and you give it. Under hypnosis to this extent there is suggestibility and I have tried in working with some individuals and also criminal cases where I would purposely try to assure reliability of the individual by maybe suggesting something and asking them if this is correct and they would still stick to their initial statement.
“Q. I direct your attention to October 12, 1966, and I ask you on that date did you have occasion to contact one Mildred Hortense Coley ?
“A. Yes.
“Q. And under what circumstances did you meet Miss Coley and where was it ?
“A. The State Police called me and asked me if I would come over there, or they told me they had an individual who had been the victim of some criminal act and that she was having a difficult time or could not recall events that occurred or circumstances under which these events occurred, and asked me if I would come over there and give any assistance I could.
“Q. And upon your arrival what did you do ?
“A. Upon my arrival I was familiarized with more details of the situation and I met the young lady and explained to her what I was going to do to help her get her memory back, whatever memory she may have lost as a result of trauma of the incident.
“Q. You say you were filled in on the background by the police and you informed her what you intended to do and the purpose of it. Then what mechanics did you utilize in order to effect what you were about to do?
“A. I used a thumbtack, the sort that has a shiny head. There is a blank wall and T just pinned the thumbtack in and asked her to concentrate, focus her eyes on the thumbtack and listen to my voice and the voice might make her simply just relax, relax, relax, you are getting very tired; very monotonous and repetitive manner.
“Q. In this manner were you able to put her into some sort of trance state ?
“A. She was under hypnosis.”
“Q. What happened as a result of what you did?
“A. Well, she went into a reduced state of consciousness.
“Q. And what did you do ?
“A. Then I recalled the date in question and simply asked her to tell me everything that happened.
“Q. Was she able to tell you?
“A. Yes. She was able to relate everything that occurred.”
* * *
“Q. You put her into this state of reduced consciousness and she told you her story. Then what did you do ?
“A. When she got into the state of reduced consciousness, then I — then two of the State Troopers came in. I asked two State Troopers to come in.
“Q. Do you know who they were ?
“A. I believe Sergeant Greffen and I believe Trooper George.
“Q. What participation did they take in what you were doing ?
“A. I just wanted them simply as witnesses since they were interested in it, and I was disinterested. I believe they recorded everything that she said.
“Q. They recorded it, you say ?
“A. I believe so. Tape recorder; I’m not sure.
“Q. Then what did you do ?
“A. Well, after I was finished I gave her the suggestion that when she would awaken she would relate that which she related under the state of reduced consciousness.
“Q. You say you gave her a suggestion. What do you mean by that ?
“A. I simply told her that when she would awaken she would recount the same thing that she recounted under the state of reduced consciousness.
“Q. Was she able to do that?
“A. Yes.
“Q. And was her ability to recall the result of your suggestion that she would ?
“A. I don’t understand the question.
“Q. You say you suggested that she could recall what she had told you while under hypnosis ?
“A. Right.
“Q. And that after this suggestion she was awakened?
“A. Uh-huh.
“Q. And then she recalled what she had said while under hypnosis ?
“A. Yes, in its entirety.
“Q. When she recalled this the second time after you awakened her, was she still under hypnosis ?
“A. No.
“Q. Was this recollection a result of the suggestion you made to her ?
“A. Yes, in that it was in a situation that provided her to want to do so.
“Q. You said your questioning took the form— you reminded her, brought her attention to the time you were discussing. What form did the questioning take thereafter ?
“A. Here is how I started out. I told her I’m going to ask you to tell me everything that happened, or I recall something, I don’t recall, tell me everything that happened on June 26th, whatever it was, and she went on and recounted, and as her — I would occasionally say, and tell me what else, what else happened, and this is essentially the form of the questioning.
“Q. At any time during your hypnosis of her did you suggest any answers to any questions ?
“A. No, I never do.
“Q. Did you relate any stories that you thought would be likely ?
“A. No.
“Q. Did the policemen participate in any way by suggesting any answers to her ?
“A. No. I never permit this. Usually when I put the person under hypnosis I usually give instructions the person will not hear any other voice or sound except mine, so no other external source can go through to her, since she can’t hear.
“Q. Is the information that results from such a session as }mu describe reliable or unreliable ?
“A. In this situation I would say that it was reliable.
“Q. Why would you say that?
“A. Because there was certain information that was provided by the police to me later and there were also self-corroborative statements she made. Also, her recall afterwards was essentially the same.
“Q. If she had been falsifying under hypnosis, would her later recall have been the same?
“A. Might not have been. Also, if she wanted to falsify she could have falsified before I induced hypnosis.”
^ * Jfc
“Q. You stated in one of your previous answers you felt in this instance the information you received from the subject was reliable. Why would this instance be more reliable than any other one you might have referred to ?
“A. For the one reason this was something that she would have no reason to withhold, say, in a completely conscious state, since there was no threat to her vital interests to withhold this information. If she wanted to lie, she certainly could have given a statement without any difficulty, which she was unable to do. Secondly, there was some corroborative material within her statement that would indicate some of the things occurred, not occurred, but some of the things she had seen, she could have only seen if she had been there.
“Q. Unable to do? Could it have been the fact she was unwilling to do it ?
“A. No. If she would have been unwilling to do it, it would probably have been impossible to even hypnotize her.”

Trooper George’s testimony confirmed that given by Mr. Oropolo as to what occurred when he was present and in addition showed that Mildred Coley was hypnotized for approximately 45 minutes. No witness testified as to what she said during or after the hypnosis.

The trial judge gave a precautionary instruction to the jury as follows:

“You have heard, during this trial, that a portion of the testimony of the prosecuting witness, Mrs. Coley, was recalled by her as a result of her being placed under hypnosis. The phenomenon commonly known as hypnosis has been explained to you during this trial. I advise you to weigh'this testimony carefully. Do not place any greater weight on this portion of Mrs. Coley’s testimony than on any other testimony that you have heard during this trial. Remember, you are the judges of the weight and the believability of all of the evidence in this case.” ' :

Although several courts of the United States have considered the question of hypnosis only one seems to be particularly apropos to our question here.

In Austin v. Barker, 85 N. Y. S. 465 (Sup. Ct. App. Div. 4th Dept.), a civil action for seduction of the plaintiff’s daughter, the court reversed and remanded the case for a new trial. The sole evidence of the defendant’s involvement was given by the daughter. She stated that she did not remember having had intercourse with anyone until some weeks after she delivered a normal healthy child. At this time, the plaintiff’s attorney visited her and so influenced and awakened her mind that she recalled that the defendant on several occasions had placed her under hypnosis and had intercourse with her. These events occurred in a room in her father’s house while one or both of her parents were seated in an adjoining room. The New York court required that on the remand the plaintiff be required to produce evidence of what actually happened to restore the daughter’s memory and evidence tending to establish the probability or possibility of the existence of. the fact that her memory of intercourse could have been blurred by hypnosis and could have been restored by hypnosis. After the case was retried the same court in Austin v. Barker, 96 N. Y. S. 814 (1906) again reversed the conviction because of the failure of the plaintiff to produce evidence as to what actually happened at the time the witness’ memory was restored and because two medical doctors indicated skepticism that she could have been made to forget her acts of intercourse particularly since she stated that the first of them was the first intercourse she had experienced.

In the present appeal as in Austin v. Barker, supra, the witness testified that at the time she was on the stand she remembered the incident she was describing, but in addition to that we have the testimony of the operator who gave a detailed description of what happened at the time hypnosis was induced which showed that there were no improper suggestions made. Further he gave his opinion as a trained and experienced psychologist that in this particular incident there was no reason to doubt the accuracy of the witness’ recollections. In addition modern medical science has now recognized the possibility that memory of painful events can sometimes be restored by hypnosis, although some authorities warn that fancy can be mingled with fact in some cases. Noyes & Klob, Modern Clinical Psychiatry 513 (1963) ; American Handbook of Psychiatry Ch. 73 “Hypnotherapy” by Lewis R. Wolberg (Arieti ed. 1959); Comprehensive Textbook of Psychiatry § 34.34 “Hypnosis: An Adjunct to Psychotherapy” by Herbert Spiegel (Freedman & Caplan eds. 1967).

We hold that on the facts of this case the testimony of Mildred Coley was sufficient to support a jury’s verdict that Harding was guilty of the crime of attempted rape. In so holding we go no further than is required by those facts. The following evidence was adduced:

(1) the hypnosis procedure was fully exposed in the evi-dence; (2) the man who induced the hypnosis was a profes-sional psychologist and gave his opinion that there was no rea-son to doubt the truth of the witness’ statement; (3) there was sufficient corroboration of the witness’ testimony: (a) male sperm was found in the victim’s vagina, (b) the accused was one of two males shown to have known where the victim could have been found when the crime was committed, (c) the ac-cused was seen in a station wagon immediately prior to the time the crime was committed. In addition, a precautionary instruction was given.

Finally Harding contends that the evidence was insufficient to support his conviction of assault with intent to murder. The record shows that Harding shot the victim in the chest, placed her on an abandoned road in an isolated area and prevented others from assisting her. It is difficult to imagine a stronger case, but may be well noted that specific intent to kill is not a necessary element for a conviction of assault with intent to murder. An intent to commit grievous bodily harm is sufficient, McLadden v. State, 2 Md. App. 725, 237 A. 2d 93, Lawrence v. State, 2 Md. App. 736, 237 A. 2d 81.

Judgments affirmed.

      . (1) People v. Ebanks, 49 Pac. 1049 (Cal. 1897) refusing testimony of hypnotists as to statements made while -the accused was under hypnosis; (3) Parks v. State, 04 N. E. 863 (Ind. 1903) affirmed tlie conviction of a hypnotist as practicing medicine without a license; (3) State v. Donovan, 103 N. W. 791 (Iowa 1905) holding a combination of flattery, love-making, and hypnotism was sufficient predicate for a prosecution for seduction; (4) State v. Exum, 50 S. E. 383 (N. C. 1905) holding that testimony of witness that her husband (the defendant) had hypnotized her three times was admissible as affecting her credibility; (5) Louis v. State, 130 So. 904 (Ala. 1930) reversed a conviction for robbery committed by hypnosis, holding that there was no threats or force used in securing the money from the victim; (6) State v. Pusch, 46 N. W. 3d 508 (N. D. 1950) affirming rejection of statements made while in a hypnotic state by the accused; (7) People v. Leyra, 98 N. E. 3d 533 (N. Y. 1951) on remand, aff’d 108 N. E. 3d 673 cert. denied 345 U. S. 918, 73 S. Ct. 730, 97 L. Ed. 1351, habeas corpus denied Leyra v. Denno, 113 F. Supp. 556, aff’d 308 F. 3d 605 cert. granted 347 U. S. 556, 74 S. Ct. 716. 99 F. Ed. 671 (1954) holding a confession induced by hypnosis inadmissible. It should be noted, however, that on the facts the confession would not have been admitted despite the lack of hypnosis; (8) Cornell v. Superior Court, 338 P. 3d 447 (Cal. 1959) allowed mandamus to compel the trial court lo permit the petitioner to examine his client with the aid of a hypnotist; (9) People v. Busch, 366 P. 3d 314 (Cal. 1961) sustaining trial court's refusal to permit a general medical practitioner from expressing an opinion on the state of mind of the accused on occasion of the homicide insofar as his opinion was based on hypnosis. The record showed that the doctor’s knowledge of and experience in hypnosis was limited; (10) Sheppard v. Koblente, 187 N. E. 3d 40 (Ohio 1963) mandamus refused to require Warden to permit a convicted prisoner lo undergo hypnosis or polygraph test for the purpose of establishing his innocence. For early authorities see 40 L. R. A. 369 (1897). For a comprehensive case note see 31 Neb. Faw Review 575 (1953).


author: Murphy, C.J.,

text:
    THEODORE SHERMAN MULLANEY, JR., v. STATE OF MARYLAND
    [No. 379,
    September Term, 1967.]

      Decided October 9, 1968.

    The cause was argued before Murphy, C.J., and Anderson, Morton, Orti-i, and Thompson, JJ.

      Robert Bug ene Smith for appellant.

      Fred Oken, Assistant Attorney General, with whom were Francis B. Bu-rch, Attorney General, Samuel A. Green, Jr., State’s Attorney for Baltimore County, and F. Harrison Stone and Charles Foos, Assistant State’s Attorneys for Baltimore County, on the brief, for appellee.
   Murphy, C.J.,

delivered the opinion of the Court.

Appellant was found guilty by a jury in the Circuit Court tor Baltimore County of possession and control of narcotics (cannabis), and was sentenced by the court to five years under the jurisdiction of the Department of Correction. On this appeal he contends that the trial court erred when it denied his pretrial motion to suppress evidence seized at the time of his arrest, and in admitting such evidence over his objection at the trial.

I

The Motion To Suppress Evidence

Appellant moved to suppress as evidence in the case approximately eight pounds of cannabis (marihuana) and other related tangible items seized at the time of his arrest, as well as certain incriminatory admissions which he made to the police shortly after his arrest. The motion was based on the ground that appellant had been unlawfully arrested and that the warrantless search of his room and person, and the taking of his oral statements were illegal as comprising the fruits of an illegal arrest in violation of the Fourth Amendment to the Federal Constitution.

A hearing was held on appellant’s motion out of the presence of the jury, at which time Lieutenant Thomas Mitchell of the Baltimore County Police Bureau, Narcotics Squad, testified that at 9:30 p.m. on August 2, 1967, he “received information” while at his home from Detective Kratsch of the Baltimore City Narcotics Squad, as the result of -which he went to the Penn Motel in Baltimore County, arriving there at 10 :00 p.m-.; that he there checked the register “which verified some of the information that I had received from the City”; that he ascertained that appellant was registered in room #222 and that while he did not know him, he had his description as being a white male, twenty to twenty-two years old, 5' 8", 140 pounds, long brown hair and bearded; that he went to his room, knocked on the door and, after failing to receive an answer, he left and kept the room under surveillance; that fifteen minutes later, a person answering appellant’s description, and two other men, entered room #222; that after waiting approximately fifteen minutes, he (Lieutenant Mitchell) and two other police officers, knocked on the door of appellant’s room; that in response to an inquiry from within the room as to “who was there,” he (Mitchell) said “Tommy Carroll”; that one of the occupants of the room, later identified as Richard Mainolfi, then opened the door about eight to ten inches, at which time he (Mitchell) “flashed” his identification card at Mainolfi, observing at the same time that the room was “a one bedroom affair,” that a man was lying on a bed smoking a cigarette, “his hands cupped around his face in such fashion where you would smoke a marihuana cigarette,” that three cigarettes were beside him on the bed “rolled as a marihuana cigarette,” and that the room was “full of smoke” which he (Mitchell) knew from his experience to be marihuana smoke; that Mainolfi tried to slam the door shut but he (Mitchell) put his “foot in the door” and his “face in the opening,” and also “put some pressure on the door;” that thereafter Mainolfi “permitted us entry”; and that they then seized from within the room a number of marihuana cigarette butts, a briefcase containing three blocks of marihuana kilo and another block of marihuana then being processed.

Lieutenant Mitchell had neither a search warrant nor an arrest warrant when he went to the motel. He testified on cross-examination that his purpose in stating that he was Tommy Carroll was “to get them to open the door.” He further testified that he felt he had sufficient cause to enter the room based on “the information and the specific way it was received by Detective Kratsch, and the description of the subject and the subject was there”; that he had “the information and the detail of the information how it was secured from Detective Kratsch, whom I’m very familiar with and with whom I have worked on a lot of occasions, and he gave me this information”; and that he knew that Kratsch’s information had been obtained from an informer of whose reliability he (Mitchell) had no knowledge.

The court denied appellant’s motion to suppress, holding that the evidence indicated that Mitchell “had received from Officer Kratsch information that the defendant was involved in transr portation and possession of marihuana,” and that it was with “that information at hand” that Mitchell went to the motel, having theretofore been provided with appellant’s detailed description. The court ruled, alternately, that even if Lieutenant Mitchell did not have probable cause to arrest at the time he went to the motel, he thereafter acquired probable cause when the door was opened and he could see that marihuana was possessed by the occupants of the room.

The constitutional validity of the search and seizure manifestly depends upon the constitutional validity of appellant’s arrest. And whether an arrest for a felony without a warrant is constitutionally valid necessarily turns upon whether, at the moment the arrest was made, the arresting officer or the police acting as a team had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing a felony. McCray v. Illinois, 386 U. S. 300; Beck v. Ohio, 379 U. S. 89; Draper v. United States, 358 U. S. 307; Parrota v. State, 233 Md. 526; Simms v. State, 4 Md. App. 160. Where, as here, the constitutional validity of the warrantless arrest was properly challenged by a pretrial motion to suppress evidence, it is the function of the court to determine for itself the persuasiveness of the facts relied upon by the police to show probable cause for the arrest —a function which it manifestly cannot perform unless it is informed of the facts upon which the arresting officer acted. See Beck v. Ohio, supra; Giordenello v. United States, 357 U. S. 480; Farrow v. State, supra; Edwardsen v. State, 231 Md. 332. Evidence to show the basis upon which the arresting officer acted in making the arrest, including the nature and details of information received from other law enforcement officers and/or informants, is not only relevant and admissible on the issue of probable cause, but must affirmatively be shown if the State is to carry its burden of proving the legality of the arrest. See Hopkins and Terry v. State, 239 Md. 517; Veihmeyer v. State, 3 Md. App. 702; Scott v. State, 3 Md. App. 429. Where the arrest is initiated on hearsay information received from an informant, the State, to establish its legality where challenged, must sufficiently inform the trial judge of some of the under - lying circumstances from which the informant concluded that a crime was being or had been committed by the person to be arrested, and some of the underlying circumstances from which the police concluded that the informant, whose identity need not be disclosed, was credible or his information reliable. McCray v. Illinois, supra; Beck v. Ohio, supra.

Thus, in Draper v. United States, supra, the Supreme Court held that in testing the sufficiency of probable cause for a warrantless arrest, the arresting officer may rely upon information received through an informant, rather than upon his direct observations, so long as the informer’s statement is reasonably corroborated by other matters within the officer’s knowledge. In that case, a “special employee” of the Bureau of Narcotics (in reality a paid government informer), who had previously given reliable information, told federal agents that the defendant, whom he described, was peddling narcotics, and that he would be at a designated place on a designated date with a tan zipper bag and would be carrying narcotics. The defendant, being observed by federal agents under conditions which accorded precisely with this information, was arrested and the arrest was upheld solely upon the informant’s detailed statement that the defendant was peddling narcotics, as corroborated by the fact that the informant’s description of the defendant’s appearance, and of where he would be at a particular time — matters in themselves totally innocuous — agreed with the arresting officer’s observations (thus providing a substantial basis for crediting the hearsay).

In Beck v. Ohio, supra, the defendant was arrested without a warrant for violating the gambling laws. By pre-trial motion the defendant moved to suppress evidence seized from his person at the time of his arrest. To establish the legality of the arrest the State called the arresting officer as its sole witness. He testified that he had “a police picture” of the defendant and “knew what he looked like,” that he knew the defendant had “a record in connection with clearing house and scheme of chance,” that he had “information,” that he had “heard reports,” that “someone specifically did relate that information,” and that he “knew who that person was.” The Supreme Court, in concluding that the State failed to establish probable cause for the arrest, held that there was “nowhere in the record any indication of what ‘information’ or ‘reports’ the officer had received, or, * * * from what source the ‘information’ and ‘reports’ had come”; that all the trial court was told “was that the officers knew what the petitioner looked like and knew that he had a previous record of arrests or convictions for violations of the clearing house law,” but that the record did not contain “a single objective fact to support a belief by the officers that the petitioner was engaged in criminal activity at the time they arrested him.” The court concluded that on the record before it, the State failed to make the required showing of “what the informer actually said, and why the officer thought the information was credible.”

In McCray v. Illinois, supra, the defendant was arrested on the street without a warrant for possessing narcotics. A motion to suppress the evidence having been filed, it was incumbent upon the State to establish probable cause for the arrest. To this end the two arresting officers each testified in considerable detail that they had talked with an informant on the morning of the arrest who had told them that defendant was then selling narcotics at a particular place and at a particular time; that the informant pointed out the defendant to the officers; and that when the defendant saw the police car, he hurriedly walked away. The officers testified that they had been acquainted with the informant for over a year, that he had supplied them with information about narcotics activities over fifteen times, and that this information had proved accurate and resulted in numerous arrests and convictions, which the officers specifically delineated in open court. In upholding the legality of the arrest, the court found that each of the officers had testified with specificity as to what the informer actually said and why the officers thought the information was credible.

In capsule form then the correct rule is as stated in Hwnd ley v. State, 3 Md. App. 402, at page 405, namely that information furnished to a law enforcement officer by an informer, together with the officer’s personal knowledge, may serve as the basis of sufficient probable cause for a warrantless arrest for a felony and search incident thereto if the trial court is informed “with specificity what the informer actually said, and why the officer thought the information was credible, and the court is satisfied such information was sufficiently reliable and reasonably trustworthy to give the officer, as a prudent man, probable cause to believe that the accused had committed or was committing a felony.” Compare United States v. Ventresca, 380 U. S. 102; Rugendorf v. United States, 376 U. S. 528, and Aguilar v. Texas, 378 U. S. 108, all cases focusing on the legality of search warrants issued on information received from informants.

Applying these principles to the evidence introduced at the hearing on the appellant’s motion to suppress, we hold that the State failed to show probable cause for the arrest prior to the time that the officers knocked on the door to appellant’s room. All that the evidence shows is that lieutenant Mitchell received undisclosed and unspecified information from a reliable police officer, as a result of which he immediately went to the Penn Motel, ascertained that appellant, whose description he somehow had, was registered there, and observed him and two others enter his room at the motel. There was no evidence to show that Lieutenant Mitchell had been informed by anyone or that he had any personal information on his own, that appellant had committed or was committing a crime, or even that he was suspected of committing a crime. It is, of course, possible that the police, acting as a team, had probable cause to make the arrest prior to the time that they knocked on appellant’s door. See Jones v. State, 242 Md. 95. But the State’s failure to prove it by proper evidence at the suppression hearing compels us to conclude that the trial judge erred in his ruling that probable cause existed for the arrest prior to the time that Lieutenant Mitchell knocked on appellant’s door.

We agree, however, with the alternative conclusion reached by the trial judge at the conclusion of the hearing on the motion to suppress, namely that Lieutenant Mitchell had probable cause to arrest appellant when the door to his room was opened and the officer, without making an entry, instantly observed that the room was full of marihuana smoke, that there wrere marihuana cigarettes in plain sight on the bed, and that one of the occupants of the room was smoking a cigarette in the distinctive fashion of a marihuana smoker. As heretofore indicated, the legality of the arrest is measured by the existence of probable cause at the time it is made and we think it clear that in the situation in which Lieutenant Mitchell found himself when the door to the room was opened, he had at that moment probable cause to believe that a felony was then being committed. That the smell of distinctive odors can constitute evidence of crime and of probable cause is well settled. United States v. Ventresca, 380 U. S. 102; Rugendorj v. United States, 376 U. S. 528; Johnson v. United States, 333 U. S. 10. This evidence, coupled with the visual observations made by Lieutenant Mitchell simultaneous with the opening of the door and prior to his entrance into the room, clearly provided, in our judgment, probable cause upon which the felony arrest could lawfully be based. The mere fact by itself that Lieutenant Mitchell may have intended to make an arrest when he knocked on the door of appellant’s motel room does not without more, constitute the officer a trespasser, there being no right of a citizen, constitutional or otherwise, which immunizes him from having a policeman knock on his door during reasonable evening hours. And as Lieutenant Mitchell did not break or physically force open the door to appellant’s room, the rule requiring that police officers seeking to make an arrest must (with certain exceptions) give proper notice of their purpose and authority before forcefully effecting entry is not applicable to the facts of this case, there being no breaking involved, constructive or actual. See Henson v. State, 236 Md. 518; Berigan v. State, 2 Md. App. 666. The Supreme Court recently observed in Sabbath v. United States, 391 U. S. 585, that entry into private premises obtained by ruse has been viewed as not involving a “breaking,” the rule being that entrance gained by the use of deception for the purpose of effecting an arrest is constitutionally permissible so long as force is not applied. Smith v. United States, 357 F. 2d 486 (5th Cir.) ; Davis v. United States, 327 F. 2d 301 (9th Cir.) ; Leahy v. United States, 272 F. 2d 487 (9th Cir.) ; United States v. Locklear, 237 F. Supp. 895 (N. D. Calif.). See particularly Dickey v. United States, 332 F. 2d 773 (9th Cir.), where, as here, an officer without a warrant gained entry into the defendant’s hotel room upon the misrepresentation that he was a person known to the defendant. The fact then that the door to appellant’s room was opened in response to Lieutenant Mitchell’s deception that he was Tommy Carroll does not invalidate the arrest under the circumstances of this case.

Appellant places reliance on Johnson v. United States, 333 U. S. 10. In that case federal officers received information from a confidential informer that “unknown persons” were smoking opium in a designated hotel and that it could be smelled in the hallway. Federal agents went to the hotel, smelled the odor of burning opium and traced it to a particular room. Without knowing who was the occupant or occupants of the room, the officers knocked on the door and when the defendant opened it, they entered and initiated a search for incriminating evidence. The court held that the entry, search, seizure and arrest were illegal, finding that the validity of the arrest depended upon the fact that the defendant was the sole occupant of the room, a fact ascertained by the officers only after they had effected entry into the room under color of legal authority. Unlike Johnson, there was no entry made into the appellant’s room until after the arresting officer had probable cause, supported by visual observations in addition to smelling the burning marihuana, to believe that a felony was being committed, and that appellant, previously known to him to be within the room, was one of the felons. Probable cause to arrest then existing, the evidence subsequently seized was properly admissible.

II

The Evidence of Probable Cause to Arrest Adduced at Trial'

At the trial, Tommy Carroll testified that on August 2, 1967 at approximately 3:30 p.m. he drove appellant to the Penn Motel and that the appellant then had a suitcase with him and said it contained marihuana.

Lieutenant Mitchell testified to the same facts that he testified to at the hearing on the motion to suppress, but with these additions: (a) that Officer Kratsch told him that an informant had told Kratsch that appellant was at the motel “with 20 pounds of marihuana;” (b) that he knew Kratsch wouldn’t call him at his home on a matter requiring him to leave “unless it was positive information,” and that he (Mitchell) knew from his long acquaintance with Kratsch that there would be “something to” Kratsch’s information; (c) that he used Tommy Carroll’s name “on information received” from Officer Kratsch and he did so to gain entrance into the room knowing that if he announced his true identity, the occupants wouldn’t have let him in; and (d) that when he (Mitchell) went to appellant’s door he had a uniformed police officer with him “so when he did open the door there would be no mistake that we were police.” Mitchell testified that he did not know the informer’s name until after the arrest was made. The informer, a young juvenile, was identified by name at the trial.

The trial judge, in overruling appellant’s trial objection to the admission of the incriminating marihuana evidence found in the motel room, stated that the arrest was lawful because Kratsch was himself a reliable informer; that he in turn had received the information from a named informer, and that it was not essential for the State to show other than that Kratsch was a reliable person and that the information furnished by him to Lieutenant Mitchell in other cases had been reliable.

Without question, the observations of fellow law enforcement officers constitute a reliable basis in the assessment of whether probable caus;fe to arrest exists. United States v. Ventresca, supra; Rugendorf v. United States, supra. Equally well settled is the proposition that probable cause to arrest may be based on information collectively within the knowledge of the police. Farrow v. State, supra. In People v. Horowitz, 233 N. E. 2d 453, the Court of Appeals of New York stated at page 455 that “it is not necessary for the officer making the arrest to know of the reliability of the informer or to be, himself, in possession of information sufficient to constitute probable cause provided that he acts upon the direction of or as a result of communication with a superior or brother officer or another police department provided that the police as a whole were in possession of information sufficient to constitute probable cause to make the arr'est.” As Horowitz indicates, however, the record must show that the law enforcement officers had facts before them sufficient to indicate that the informer, whether named or anonymous, was reliable, or that the police had other information not derived from the informer, which was sufficient, in itself, to constitute probable cause. Compare People v. Holup, 289 N. Y. S. 2d 19, a case holding that while the arresting officer was told by his superior officer that the defendant was an armed robber, and that weapons could be found in his room, since the superior officer did not testify, the warrantless arrest was unlawful as probable cause had not been demonstrated on the record.

In Draper and McCray, the informer was himself the source of the information that a crime was being committed by the person to be arrested, and the informer’s reliability was clearly established by the evidence. Here, the true source of the information was not Officer Kratsch. Insofar as the record shows, he was but a conduit of the information, and while his reliability was established, the reliability of his informer was not. The State’s failure to establish the reliability of Kratsch’s informant is unexplained in the record. Under these circumstances, we entertain considerable doubt that, even with the additional evidence adduced at the trial itself, the arrest can be justified as one based on the existence of probable cause prior to the time that Lieutenant Mitchell knocked on the door to appellant’s room.

We hold, however,- that the evidence, both at the suppression hearing and at the trial itself, did demonstrate the existence of probable cause for Lieutenant Mitchell to make the arrest at the time that the door was opened to appellant’s room and, consequently, the arrest being lawful, the search and seizure made incident thereto were likewise lawful, and the incriminating evidence was properly introduced. In so concluding, we have considered appellant’s 'argument that the trial court erred in permittiug Lieutenant Mitchell to testify that it was marihuana smoke that he smelled in appellant’s room. We think the record shows that Lieutenant Mitchell was an experienced police officer with a substantial background in the field of narcotics and was qualified to express an opinion that the smoke he smelled and observed emanated from the burning of marihuana. See Sherrod v. State, 1 Md. App. 433.

Ill

Admissibility oj Appellant’s Incriminating Admissions

The evidence adduced both at the hearing on the motion to suppress and at the trial before the jury showed that immediately following his arrest, the police gave appellant the specific four-fold warning required under Miranda v. Arizona, 384 U. S. 436. The police then specifically inquired whether the appellant, “having these rights in mind,” wanted to talk to them. Detective Thomas Manzari, one of the arresting officers, testified that appellant “shook his head like he understood”; that “he just nodded his head in a yes position,” but that he said nothing. Lieutenant Mitchell testified that appellant made no request at his motel room to call an attorney, and while he appeared sullen and angry, he was not under the influence of narcotics. The officers placed appellant in a police car and although they “needled” him about the loss he would sustain and asked him questions, he didn’t respond at all until, while on the way to the police station, he stated in response to a question that the marihuana belonged to him and that he had just arrived from California with it.

Appellant contends that after the Miranda warnings were read to him, he was not afforded an opportunity to make a phone call to an attorney before the officers questioned him in the police car. He further contends that he was under the influence of narcotics when questioned and that his incriminating statements were therefore involuntarily made and should not have been admitted in evidence at the trial. These objections were made both at the suppression hearing and at the trial and, although only obliquely mentioned, the broader objection was in substance made that there was no waiver of his Miranda rights prior to the time that the officers questioned him in the police car.

As there is no evidence in the case to show that appellant was under the influence of narcotics when arrested, or that he made any request to call an attorney before being questioned in the police car, we And no basis for excluding the incriminating admissions on these grounds. But questioning appellant in a police car under the circumstances here involved clearly constitutes “custodial interrogation” within the meaning of Miranda (Myers v. State, 3 Md. App. 534), and calls in question the applicability of the holding in Miranda that “a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained,” nor will “failure to ask for a lawyer * * * constitute a waiver” (at page 475). Miranda made it quite clear that, if after the warnings required by that decision have been given, custodial interrogation is undertaken without the presence of an attorney, and a statement is obtained, “a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self incrimination and his right to retained or appointed counsel” (at page 475). And equally plain from Miranda is the flat holding at pages 475 and 479 that no evidence obtained as a result of a custodial interrogation can be used against an accused unless and until the prosecution demonstrates a waiver of constitutional rights within the meaning of Johnson v. Zerbst, 304 U. S. 458, a case which holds that waiver of a fundamental constitutional right is ordinarily “an intentional relinquishment or abandonment of a known right or privilege,” the determination of which “must depend in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.” As we recently stated in Brown v. State, 3 Md. App. 313, 321, the ultimate determination of whether the appellant knowingly and intelligently waived his Miranda rights before making a statement is governed by whether the particular facts and circumstances involved in the case are such as demonstrate an intelligent and intentional relinquishment or abandonment of a known right or privilege. But it has been held that an express statement by an accused undergoing custodial interrogation to the effect that he understood his Miranda rights, and nevertheless wanted to make a statement is not an essential link in the chain of proof of waiver. United States v. Hayes, 385 F. 2d 375 (4th Cir.); Brown v. State, supra.

The record before us discloses that appellant was twenty years of age and a high school graduate. As heretofore indicated, there was no evidence that he was under the influence of narcotics or that his intellectual endowments were in any way impaired at the time of his interrogation. There was no evidence that he was subjected to physical coercion during his interrogation or that he was subjected to any psychological coercion at any time beyond the fact that the police “needled” him after his arrest. Appellant had been caught red-handed by the police, knew that the incriminating evidence had been seized from his motel room, and undoubtedly appreciated the magnitude of his predicament. He was subjected to interrogation in a police car rather than in the more compulsive atmosphere of the station house. And from the testimony, the trier of fact could find that appellant understood the import of the Miranda warnings and knew that he had a right to remain silent and to have counsel present during any police interrogation.

Despite the fact that the testimony does not show an express waiver of appellant’s right to remain silent and to counsel, we hold that the totality of the circumstances — the attendant facts of the case — are such as implicitly show that appellant voluntarily and intelligently relinquished these rights when he made his incriminating admissions. See United States v. Hayes, supra; Brozan v. State, supra; Scott v. State, 3 Md. App. 429. We therefore find no error in their having been admitted in evidence.

IV

The Court’s Instructions to the Jury

Appellant contends that the trial judge erred in three particulars in his instructions to the jury. As we have by our opinion heretofore approved the substance of two of the challenged instructions, we need not further discuss them. The remaining objection is based on appellant’s argument that the trial judge erred in instructing the jury that probable cause to make an arrest is made out if “the police team working on a particular case had accumulated sufficient information to furnish probable cause for a reasonable man to believe that the alleged crime had been committed, and that there was probable cause to believe that the defendant was involved therein, there was sufficient cause for an arrest;” [and that] “It is the sufficiency of the information which the police organization working as a team of which the arresting officer is a part which is determinative.” The basis of appellant’s exception made at the conclusion of the court’s instruction was that “there is no evidence of the police team working in that literal sense.”

Appellant now expands on the reason for his exception by maintaining that the legality of the “police team” concept of probable cause depends upon a satisfactory evidentiary showing of the details of the informer’s statement, and that such details were not in evidence in this case. In effect then, appellant does not contend that the court misstated the law in its instructions, but rather that the challenged instruction had no application to the evidence adduced at the trial.

Maryland Rule 756 f provides that a party having an objection to any portion of any instruction given, or to any omission therefrom, shall before the jury retires to consider its verdict, make such objection “stating distinctly the portion, or omission, or failure to instruct to which he objects and the ground of his objection.” We think it apparent that the ground of appellant’s objection made at the conclusion of the court’s instructions was not sufficiently distinctive to warrant review on appeal. We nevertheless note that the challenged instruction was given in the context of “what information” the arresting officers had “the moment they entered the room”; that the court defined probable cause as existing “where the facts and circumstances within the police officer’s knowledge and of which he had reasonably trustworthy information are sufficient in themselves to warrant a man of reasonable caution in the belief that an offense had been or is being committed”; and that the court qualified its instruction by telling the jury that “Common rumor, reports, suspicions, even though strong, are not sufficient to support an arrest and a search and seizure.” Considering the challenged instruction in this light, we think that even if over-broad, no real prejudice resulted to appellant, and accordingly we find no reversible error.

V

Sufficiency of the Evidence to Go to the Jury

Appellant contends that the trial court erred in denying his motion for judgment of acquittal at the conclusion of the case. We disagree. In order to overturn a judgment entered on the verdict of a jury for insufficiency of the evidence, it is necessary that there was no legally sufficient evidence, or inferences drawable therefrom, on which the jury could find an accused guilty beyond a reasonable doubt. Quinn v. State, 1 M'd. App. 373. The record before us discloses no such deficiency of evidence.

Judgment affirmed.

      . The court sustained appellant’s objection to Lieutenant Mitchell relating the substance of the information that he had received from Detective Kratsch. For reasons hereinafter set forth, the court’s ruling in this regard was erroneous.

      . No evidence was adduced at the suppression hearing to shed light on the identity of Tommy Carroll.

      . Where the arrest is made for a misdemeanor, the test to determine the legality of the arrest is whether the misdemeanor was committed in the officer’s presence. Robinson v. State, 4 Md. App. 515; Shelton v. State, 3 Md. App. 394.

        . The Supreme Court made it crystal clear in McCray v. Illinois, supra, that there is no requirement, constitutional or otherwise, which compels disclosure of the informant’s identity on a hearing to determine the question of probable cause for an arrest or search. Cf. Roviaro v. United States, 353 U. S. 53, involving the disclosure of an informant’s identity at the trial when the issue is the guilt or innocence of the accused.

      . Having failed to establish such probable cause at the suppression hearing, a question arises as to whether the State should be afforded another opportunity to do so at the trial before the jury. As we find probable cause to arrest to exist for other reasons, we need not consider the question on this appeal.