text:
    ERNEST JATO MUTYAMBIZI v. STATE OF MARYLAND
    [No. 1335,
    September Term, 1975.]

      Decided September 21, 1976.

    The cause was argued before J. Dudley Digges, Associate Judge of the Court of Appeals, * Solomon Liss, Associate Judge of the Eighth Judicial Circuit, and Charles E. Edmondson, Associate Judge of the First Judicial Circuit, all specially assigned.

      Geraldine Kenney Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      John A. Austin, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Richard P. Arnold, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This tragedy had its beginnings in South Africa and its denouement in Prince George’s County. The appellant, Ernest Jato Mutyambizi, was a native of Rhodesia and his wife, Gloria, a native of South Africa. They were married in 1963 and in 1965 came to the United States, where the husband studied at Lincoln University in Pennsylvania. In 1967, the seas of matrimony became stormy, and appellant and his wife separated. During the separation Gloria bore a child fathered by another man. About a year and a half after the original separation, the couple reconciled. In the interim, appellant had been awarded his master’s degree from Georgetown University; but because of his inability to finance his further studies in the U.S., he left his wife and went to England to work on his doctoral dissertation. He returned to Washington a year later and resumed cohabitation with his wife and four children, three being his and the fourth the result of his wife’s temporary liaison during the separation. The marital relationship was far from peaceful; and in January, 1972, the wife filed a bill for divorce and by court order appellant was evicted from their dwelling. During this separation the wife lived with another man. In August of 1973, the couple again reconciled and remained together until October of 1974 when the wife filed a supplemental bill of complaint. On December 18, 1974, counsel for both parties were notified that a hearing on the wife’s supplemental bill was scheduled for February 27, 1975. During the several separations, the children had lived on some occasions with their mother and on others with the appellant.

On December 22,1974, the children were with the father in Lanham when the mother came to the appellant’s house and told the children to pack. Sharon, the eldest, began to follow her mother’s instructions and heard her parents arguing in the living room. She observed that her father had a gun and heard her mother say, “You keep saying you are going to shoot somebody and you never kill anybody.... If you’re going to kill someone, go ahead.” Her father replied that he didn’t want to kill the mother. A few minutes later Mrs. Mutyambizi walked down the steps toward the front door and the father pulled the gun out of his pocket and shot her. The appellant then took the children to get some ice cream and later put them to bed, telling them he was going to take their mother to the hospital. Delores Gatlin, a friend of the mother, testified that she went to the Mutyambizi home the next day and discovered the body of Mrs. Mutyambizi on the bed covered with a coat. After determining there was no pulse, she left the premises and notified the police, who arrested the appellant at the premises and removed a .22 caliber pistol from his clothing.

Appellant’s version of the events was substantially different from that adduced by the State: he contended that on December 22, 1974, his wife called and requested that he drive her to work, which he did, and that he later picked her up at work and drove her to his home in Lanham. He had been taking pain medication for an injury to his arm, and his wife gave him two pills to relieve a headache. Shortly thereafter he had a shot of whiskey. An argument ensued, during the course of which she suggested they come back together again for the sake of the children, but he refused. He was on the sofa trying to sleep when his wife said, “How romantic it would be to die together.” He saw his wife with a gun in her hand which he recognized as one usually kept on the top shelf of the bookcase in the living room. When she refused to put it back, he took it away from her and kept it with him. He then returned to the sofa and started “feeling funny as if I were floating.” He heard a sound “as if there was lightning in the house, lightning and thunder” and “the next thing I knew I was in jail and it was Christmas morning.”

A plea of insanity at the time of the commission of the offense was made, and the issue of sanity was submitted to the jury which found that the appellant was sane at the time of the commission of the offense. No issue is raised on appeal challenging the jury’s finding of sanity. The jury returned verdicts of guilty of second degree murder and guilty of the use of a handgun in the commission of a crime of violence. It is from the judgments entered upon these findings that this appeal was timely noted.

Appellant contends that the trial court erred in its rulings on the admissibility of evidence on three occasions, and that in each instance, the error amounted to reversible error. The first occasion was when Sharon Mutyambizi was called as a witness: she testified in direct testimony that as her mother walked down the steps toward the front door her father pulled a gun out of his pocket and shot her. When appellant took the stand in his own defense, he testified on direct examination that he had no recollection of his actions at the time the events were alleged to have occurred. During the course of his direct examination, counsel asked him, “Earlier yesterday, your daughter, Sharon, testified that she saw you with a gun in the living room. Do you recall her saying that?” He answered, “I don’t recall, but if she said [that] I do believe her.”

The prosecutor, in cross-examination, without objection, was permitted to question the defendant concerning the testimony given by his daughter, Sharon, as follows:

“Q. Mr. Mutyambizi, you stated that if your daughter testified that she saw you with a gun you would believe her, is that correct?
A. I didn't say that, no.
Q. I see. Well, did you hear your daughter testify that she saw you with a gun?
A. Yes, I have heard my daughter testify to that.
Q. Were you not asked by your attorney whether or not that was true and your response was if she said it I believe her?
A. Probably, I did.
Q. You also — do you also believe her — do you recall her also testifying that your wife turned away from you, you had the gun, you drew the gun out of your pocket and pointed it in a downward position as she was walking down the steps and fired the gun at her? Do you remember her testimony to that effect?
A. I remember her testimony to that effect.
Q. Do you also believe that?
A. Not entirely.
Q. What part of it do you believe?
A. Excuse me, do you want me to explain?
Q. Yes.
A. There is a difference here with people picking out information from a person and a person speaking on her own.
Q. Yes. What information do you believe? What part did she testify to that you believe?
MR. KEANE: Objection.
THE COURT: Overruled. You may answer that, if you can.

At this juncture, the prosecutor attempted to elicit from the appellant those portions of Sharon’s testimony he believed and those which he disbelieved. Timely objection as to this line of questioning was offered and overruled. Appellant contends that the trial court erred in permitting this cross-examination.

Judge Robert C. Murphy, formerly of this Court, now Chief Judge of the Court of Appeals of Maryland, stated the definitive standards for cross-examination in DeLilly v. State, 11 Md. App. 676, 276 A. 2d 417 (1971). He said:

“We are, of course, mindful of the general rule so frequently cited that the allowance or disallowance of questions on cross-examination is normally left to the sound discretion of the trial judge. But where the limitations imposed by the Court upon cross-examination are such as plainly inhibit the ability of the accused to obtain a fair trial the general rule is manifestly inapplicable. Shupe v. State, 238 Md. 307. The real object of cross-examination is ‘to elicit all the facts of any observation or transaction which has not been fully explained’. Williams v. Graff, 194 Md. 516, and cases cited at p. 523. That a witness may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge or the like, is a fundamental concept in our system of jurisprudence. Kantor v. Ash, 215 Md. 285; Bryant v. State, 4 Md. App. 572. And cross-examination to impeach, diminish, or impair the credit of a witness is not confined to matters brought out on direct examination; it may include collateral matters not embraced in the direct examination to test credibility and veracity, it being proper to allow any question which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility.” 11 Md. App. 676, at p. 681.

The Appellant’s defense rested primarily on his statement that he had no recollection of the events which led to his wife’s death. It was his counsel who raised the issue as to the daughter’s testimony. During appellant’s cross-examination, no objection was offered until he attempted to equivocate by suggesting that he believed some of his daughter’s testimony and disbelieved other portions. The prosecutor then attempted, over objection, to have him specifically indicate which portions he believed and which he disbelieved. Whether a witness on the stand personally believes or disbelieves testimony of a previous witness is irrelevant, and questions to that effect are improper, either on direct or cross-examination.

The second error alleged by appellant is the trial court’s overruling of defense counsel’s objections to questions concerning unauthenticated telephone calls allegedly received by Edward J. Skeens from the appellant. Skeens, who was representing Mrs. Mutyambizi in the domestic squabble between the parties, had made a call in January of 1972 to the appellant; and while the subject matter of that call was disputed, the receipt of it was conceded by appellant. The calls which were objected to were those allegedly made by the appellant to Skeens. It was the admission of testimony as to these two calls that counsel for the defense contends was reversible error. Appellant’s contention is that no proper foundation was laid for the admissibility of this evidence.

The general rule of evidence is that in order to render testimony of a telephone conversation admissible, some preliminary testimony, either direct or circumstantial, must be presented to establish the identity of the other person to the conversation. Basoff v. State, 208 Md. 643, 649, 119 A. 2d 917, 920 (1956); White v. State, 204 Md. 442, 446, 104 A. 2d 810; 1 Wharton Criminal Evidence, 11th Ed., Sec. 379.

The mere fact that the caller purported to be the appellant is not sufficient to make the telephone conversation admissible. 7 J. Wigmore, Evidence, Sec. 2155 (1)b (3rd Ed.) is authority for the proposition that a call may be authenticated from “sundry circumstances”. This test was applied by this Court in Ford v. State, 11 Md. App. 654, 657, 276 A. 2d 423, 424 (1971). In that case, a telephone conversation was admitted where the facts showed that the parties had talked about mutual acquaintances and had discussed the purchase and quality of illicit drugs, the latter being the subject matter of the prosecution. Applying similar standards in the instant matter, the facts show that the caller identified himself as Mr. Mutyambizi; said that he had just been served with a copy of the supplemental bill of complaint; stated that his wife had kidnapped his son and that he had made a complaint in Seat Pleasant; and gave Skeens the case number of the pending divorce matter. The intimate knowledge which was displayed concerning the marital situation and the pending divorce action is in our opinion sufficient “sundry circumstances” as to amount to an authentication of the caller. Appellant denied making the calls, but this was a matter for determination by the trier of the facts. We find no error in the court’s overruling defense objections to the admissibility of the evidence of the phone conversation.

The third and final objection to the trial court’s rulings on the evidence concerns the court’s refusal to sustain defense counsel’s objections to alleged hearsay evidence given by Attorney Skeens. Skeens in direct testimony had related the progress of the divorce proceedings between the parties. At the very end of that direct testimony, the following occurred:

“Q. Do you have personal knowledge of anything which occurred on May — approximately May the 12th, 1974 with regard to the parties around Mother’s Day?
A. I have personal knowledge from what Mrs. Mutyambizi told me.
Q. When did you see her? Was it after the 12th of May, 1974?
A. Yes.
Q. How soon after was it?
A. This was in connection with the filing of the supplemental bill that incident and the other incident.”

On redirect examination, the prosecutor asked Skeens what “extraordinary facts” had prompted him to talk to the appellant when he had called Skeens twice on October 31, 1974. The testimony was as follows:

“Mr. Arnold: Mr. Skeens, you stated on cross-examination that you determined it advisable to talk to the Defendant when he called you twice on October 31, 1974 because of the extraordinary facts in this case, is that correct?
A. Correct.
Q. Would you tell us what those facts might be?
Mr. Keane: Objection. It has been asked and answered on direct and on cross.
The Court: I’m not so sure it has. Overrule your objection, you may answer the question.
The Witness: The extraordinary facts in this case at that time were incidents that occurred around holidays all the time. May 12th, Mother’s Day, Thanksgiving Day, 1974, Christmas Eve, 1973, and from the extraordinary facts, that I considered extraordinary in a domestic matter was that this man on Christmas Eve, 1973, held his wife at gunpoint, twirled the barrel —
Mr. Keane: Objection.
The Court: Overruled.
The Witness: — and stated that he was going to kill her and kill himself. He stuck the gun, twirled the barrel once playing Russian roulette. He had one slug in the gun and was spinning it around, pointed it to his chest and pulled the trigger and it clicked. On another incident I believe this was around Mother’s Day of ’73 after he had assaulted Mrs. Mutyambizi, she had to go to the hospital for X-Rays and treatment, he fired the gun in the house, he bolted the door. He put a chair up against the door and then he fired the gun that he had in the house at that time. He would load the gun in the presence of his wife and tell her he was going to kill her, showing her the bullet saying I am going to put this in the gun and kill her with it and, of course, terrifying her.. She was terrified of him all the time. I have seen her talk to him. It was a case, I knew from my experience —
Mr. Keane: Objection.
The Court: Sustained.
Mr. Arnold: What was there on Thanksgiving — what extraordinary facts occurred around Thanksgiving of 1974?
Mr. Keane: Objection.
The Court: Overruled.
The Witness: in 1974 —
The Court: You opened the door, Mr. Keane. Overruled.
Mr. Keane: I object to it being called ‘facts'.
The Court: Overruled, sir.-You may continue.
The Witness: On Thanksgiving, 1974, this is now — the case is pending in court, the supplemental bill had been filed and the children were with Mr. Mutyambizi. We had already discussed the matter of getting the custody resolved and I believe the custody at that time was very close to being resolved. The mother went over to see the children on that occasion and it appeared that everything was working smoothly. Mr. Marqualdt had come into the case, I believe on December 11th. Mr. Mutyambizi filed a paper in the case December 11th stating she could have custody of the children back. So even back then, on Thanksgiving Day it seemed that everything was working out fine and Mr. Mutyambizi got his wife over to the house and held her at gunpoint the entire night until five-thirty in the morning and insisted that she have sex with him and when she refused he raped her under gunpoint and then released her about seven or eight o’clock the following morning. She came to my office that next morning. I observed the condition she was in at that time. That was the —
Mr. Arnold: What was her condition at that time?
Mr. Skeens: Her eyes were bloodshot and she was very upset and I had instructed her to again go down to the State’s Attorney’s office for a warrant, that there was nothing I could do further in the case.”

Appellant contends that the testimony of Skeens permitted by the trial court as to those events occurring between appellant and his wife was clearly hearsay. We agree. Hearsay evidence has been defined as “testimony in court of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” McCormick, Evidence, Sec. 246 (2d Ed. 1972); Johnson v. State, 23 Md. App. 131, 326 A. 2d 38 (1974); Wilkins v. State, 11 Md. App. 113, 273 A. 2d 236 (1971); Quiles v. State, 4 Md. App. 354, 243 A. 2d 661 (1968).

The traditional objection to hearsay evidence was stated by the renowned Chancellor Kent:

“A person who relates a hearsay is not obliged to enter into any particulars, to answer any questions, to solve any difficulties, to reconcile any contradictions, to explain any obscurities, to remove any ambiguities; he entrenches himself in the simple assertion that he was told so, and leaves the burden entirely on his dead or absent author.” McCormick, supra, at 583.

Our examination of the transcript convinces us that the testimony of Mr. Skeens as to the aforesaid incidents was based on what he had been told by Mrs. Mutyambizi. The general rule in the absence of a statute or rules of evidence to the contrary is that “a declaration which is objectionable as hearsay is not rendered competent by the fact that the declarant has died since the declaration was made. ...” 31A, C.J.S. Evidence, Sec. 205 (1964); see also: Lenz v. So. Pac. Co., 493 F. 2d 471 (5th Cir. 1974).

We find the admission of Skeens’ hearsay testimony was erroneous. We must therefore proceed to determine whether the error was prejudicial or harmless. 2 Wharton, Criminal Evidence, Sec. 272, at 21 (13th ed. 1972), succinctly states the effect of erroneous admission of hearsay evidence:

“Where hearsay evidence has been improperly admitted over the objection of the adverse party, the error will require a reversal if the evidence relates to a material issue or is prejudicial to such adverse party. If the hearsay evidence is neither material nor prejudicial, the error will be ignored, provided that the conviction is amply supported by other competent evidence. Thus, the admission of hearsay evidence will not constitute reversible error where it is merely cumulative.” Johnson v. State, 23 Md. App. 131, 136, 326 A. 2d 38, 42 (1974).

Our review of the transcript and the records convinces us that it was prejudicial error to admit the hearsay testimony in this case. Skeens’ testimony as to the Mother’s Day and Thanksgiving Day incidents were highly inflammatory. His conclusions, based on the information he received from the decedent, that the appellant had assaulted and raped his wife, were clearly prejudicial. All reasonable doubts as to the effect of erroneously admitted evidence upon the jury’s determination of guilt must be resolved in favor of the objecting party. Johnson v. State, supra, pp. 138, 139; Gilchrist v. State, 2 Md. App. 635, 236 A. 2d 299 (1967); Younie v. State, 272 Md. 233, 322 A. 2d 211 (1974).

The Court of Appeals has adopted the following test to determine whether an error is harmless or prejudicial:

“We conclude that when an appellant, in a criminal case, established error, unless a reviewing court, upon its own independent review of the record, is able to declare a belief, beyond a reasonable doubt, that the error in no way influenced the verdict, such error cannot be deemed ‘harmless’ and a reversal is mandated.” Dorsey v. State, 276 Md. 638, 659, 350 A. 2d 665, 678.

Upon our review of the record, we find that it does not meet this test. We find that there was prejudicial error and therefore reverse the appellant’s convictions and remand for a new trial.

There is one other contention raised by appellant, but because of our holding above, it is not necessary for us to reach this issue. Appellant contends that in the light of the Mullaney and Evans decisions, the trial judge committed plain error in his instructions to the jury as to the burden of proof. At the time of the trial of this case, Evans and other progeny of Mullaney were pending before the Court of Appeals of Maryland. That Court has now decided the series of cases arising out of the Mullaney decision. This Court has decided Squire v. State, 32 Md. App. 307, 360 A. 2d 443 (1976), in which we said that a claim of plain error, Maryland Rule 756 g, was not available when the trial was held after 9 June 1975, the date of the Mullaney decision. These decisions should provide adequate guidelines to assist the trial court in its instructions to the jury, in the event of a retrial of this matter.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Prince George’s County.

      . There was extensive expert testimony adduced at trial on the issue of insanity at the time of the offense. Briefly stated, appellant was evaluated at Clifton T. Perkins Hospital. Bach of the five psychiatrists present at the staff conference felt that appellant was suffering from a mental disorder at the time of the offense, but the diagnoses differed: “hysterical neurosis with disassociative reaction”; “situation anxiety”; “anxiety neurosis with paranoid trends”. Three of the psychiatrists were of the opinion that the mental disorder did not prevent Appellant from realizing the criminality of his behavior or from conforming ms conduct; one psychiatrist felt that it did; the other expressed no opinion on the latter issue.

      . We do not rule on the question whether a husband can in fact rape his wife.

      . Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975); Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975).

      . State v. Evans, 278 Md. 197, 362 A. 2d 629 (1976); State v. Garland, 278 Md. 212, 362 A. 2d 638 (1976); Dorsey v. State, 278 Md. 221, 362 A. 2d 642 (1976).


source: Caselaw Access Project

author: Eldridge, J.,

license: Public Domain

text:
    ARLESTER WRIGHT v. STATE OF MARYLAND
    [No. 1348,
    September Term, 1975.]

      Decided September 21, 1976.

    The cause was argued before Marvin H. Smith and John C. Eldridge, Associate Judges of the Court, of Appeals, and Joseph M. Mathias, Associate Judge of the Sixth Judicial Circuit, all specially assigned.

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, Dennis M. Henderson, Assistant Public Defender, and George E. Bums, Jr., Assistant Public Defender, on the brief, for appellant.

      Arrie. W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and John Dunnigan, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Eldridge, J.,

delivered the opinion of the Court.

Appellant, after having been found guilty by a jury in the Criminal Court of Baltimore on October 16, 1975, of first degree murder and carrying a concealed weapon, was' sentenced to life imprisonment on the murder charge and three years’ imprisonment, to be served concurrently, on the concealed weapons charge. On appeal he challenges only the murder conviction, making two contentions: (1) the trial judge’s instructions to the jury improperly placed the burden of proving self-defense upon appellant; (2) the evidence was insufficient to support a verdict of murder in the first degree.

The State in this case concedes, correctly we think, that: (1) the issue of self-defense was fairly generated by the evidence adduced; (2) the trial judge told the jury that the defendant had the burden of persuasion on the question of self-defense, and therefore the instruction was erroneous under Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975); and (3) under Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd, State v. Evans, 278 Md. 197, 362 A. 2d 629 (1976), the first degree murder conviction would not cure an improper allocation of the burden of persuasion with respect to self-defense. Cf. Dorsey v. State, 278 Md. 221, 362 A. 2d 642 (1976). The State, however, argues that as the trial in the instant case occurred four months after the Supreme Court’s decision in Mullaney v. Wilbur, supra, and as the appellant failed to object to the instruction concerning the burden of persuasion, the erroneous instruction furnishes no basis for reversing the conviction. While acknowledging in oral argument before us that the appellant might be able to secure relief under the Post Conviction Procedure Act in light of the requirements of that statute for finding a waiver of a constitutional right, Maryland Code (1957, 1976 Repl. Vol.), Art. 27, § 645A (c), the State urges that we decline on direct appeal to consider the erroneous instruction.

Maryland Rule 756 g provides that ordinarily an appellate court will not consider an error in a jury instruction unless the instruction was objected to before the jury retired. However, the rule further states that an appellate court “may take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to ....” See Dempsey v. State, 277 Md. 134, 152, 355 A. 2d 455 (1976); Dimery v. State, 274 Md. 661, 338 A. 2d 56 (1975).

On July 15, 1976, in State v. Evans, supra, 278 Md. at 211, the Court of Appeals in an opinion by Chief Judge Murphy held that the Court of Special Appeals did not abuse its discretion under Rule 756 g by taking cognizance of, and reversing on the basis of, a jury instruction, erroneous under Mullaney v. Wilbur, which had not been objected to. The trial in Evans had taken place prior to the Mullaney decision, and the Court of Appeals, in holding that the case was appropriate for taking cognizance of a “plain error” in the instruction, relied upon section (d) of the Post Conviction Procedure Act, Code (1957, 1976 Repl. Vol.), Art. 27, § 645A (d). That section provides:

“For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposes upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which such standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.”

The Court of Appeals reasoned that since the “Mullaney errors were subject to collateral attack under this section in any event,” it was not inappropriate to take cognizance of the erroneous instruction on direct appeal “notwithstanding the fact that the errors may not have been technically ‘plain’ within the traditional application of the rule’s provisions.” 278 Md. at 211.

About a week after the Court of Appeals decision in Evans, the Court of Special Appeals rendered its decision in Squire v. State, 32 Md. App. 307, 360 A. 2d 443 (1976), in an opinion also by Chief Judge Murphy (specially assigned to the Court of Special Appeals). Squire involved a jury instruction, also erroneous under Mullaney and also not objected to, in a trial which occurred four days after the Mullaney decision was handed down by the Supreme Court. This court in Squire declined to take cognizance of the erroneous instruction under the “plain error” principle of Rule 756 g, pointing out that “even constitutional rights may be waived in the course of a trial....” 32 Md. App. at 309. In reaching this conclusion, the opinion in Squire distinguished Evans as follows (id. at 310):

“[W]e note that the decision to treat as plain error the faulty instruction given in Evans stands in contrast with that here involved in that the error in Evans occurred before the Supreme Court decided Mullaney, whereas the error in the present case occurred subsequent to that decision. In its affirmance of the judgment in Evans v. State, the Court of Appeals considered it appropriate to recognize, as ‘plain error’ under Rule 756 g, an error in jury instructions committed in a case tried prior to the Mullaney decision, since in view of Mullaney’s retroactive application, the error was one specifically open to collateral attack under the provisions of the Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl. Vol.), Article 27, § 645A (d).”

It is true that section (d) of the Post Conviction Procedure Act, which furnished the basis for taking cognizance of the erroneous instruction in Evans, has no application to a trial occurring subsequent to the decision announcing a new constitutional standard. Nevertheless, as the State acknowledged in oral argument in the instant case, section (c) of the Post Conviction Procedure Act might be applicable to furnish relief to a defendant tried after Mullaney, where it is contended that the defendant waived any complaint about the constitutionally erroneous instruction by failing to object at trial. Section (c) provides in part:

“For the purposes of this subtitle, an allegation of error shall be deemed to be waived when a petitioner could have made, but intelligently and knowingly failed to make, such allegation ... at trial. . ..” (Emphasis supplied.)

Section (c) of the Post Conviction Procedure Act thus requires something more than an attorney’s failure to object; it requires an intelligent and knowing waiver by the defendant himself. Jourdan v. State, 275 Md. 495, 507, 341 A. 2d 388 (1975); Bristow v. State, 242 Md. 283, 289, 219 A. 2d 33 (1966). This is a state statutory requirement, applicable eveh in circumstances where the Supreme Court might deem something less to be a waiver of a federal constitutional right.

Although appellant may be entitled to post conviction relief, and although the reasoning in Evans might appear to be applicable to the present case considering section (c) of the Post Conviction Procedure Act, in view of the recent Squire decision by this court we must decline to take cognizance of the erroneous self-defense instruction. No factors are present in this case which were absent in Squire and which would justify a different result. In fact, there might have been more excuse for the attorney’s failure to object to the instruction in Squire than in the present case, since Mullaney was decided only four days before the trial in Squire but more than four months before the instant trial. The decision not to take cognizance of the error in the instruction in this case is, of course, without prejudice to any petition which may be filed under the Post Conviction Procedure Act.

Turning to the second issue raised by the appellant, we have reviewed the record and conclude that there was sufficient evidence to support a first degree murder verdict.

Judgment affirmed.

Appellant to pay costs.


author: Davidson, J.,

text:
    DENNIS GENE FOSTER v. MARGUERITE FOSTER
    [No. 1374,
    September Term, 1975.]

      Decided September 21, 1976.

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

      Lawrence J. Gebhardt, with whom were Gebhardt & Smith on the brief, for appellant — cross-appellee.

      Melvin J. Sykes for appellee — cross-appellant.
   Davidson, J.,

delivered the opinion of the Court.

The appellant — cross-appellee, Dennis G. Foster (husband), and the appellee — cross-appellant, Marguerite Z. Foster (wife), both appeal from portions of an amended decree entered in the Circuit Court for Baltimore County which, among other things, granted the wife an absolute divorce, custody of the minor child of the parties, alimony, child support, and counsel fees of $7,500. The husband also appeals from an order entered on 30 December 1975 which, among other things, denied his motion for counsel fees for the defense of a contempt proceeding instituted on 16 December 1975 by the wife, allegedly in bad faith and without substantial justification.

Here, neither of the parties challenges the divorce, custody, alimony or child support provisions of the decree and order. In his appeal, the husband’s contentions are that the chancellor erred in awarding the wife an excessive amount for counsel fees and in denying the husband counsel fees for his defense in the contempt proceeding. In her cross-appeal, the wife’s sole contention is that the amount of the counsel fees awarded to her was inadequate.

I

The husband initially contends that the counsel fees awarded to the wife were excessive because they exceeded the amount she had agreed to pay. He maintains that a husband can be compelled to pay only such counsel fees as the wife is obligated to pay.

The husband asserts that here, there was a written agreement between the wife and her attorney, under which the wife was obligated to pay up to $5,000 for counsel fees. He claims that that agreement further provides for additional fees “to come from a contingency arrangement based upon whatever her counsel could convince the Court to award as an attorney’s fee against Dr. Foster or as a percentage of any property settlement.” The husband argues that because contingency fee agreements are against public policy, these provisions are unenforceable. He concludes that the wife’s total obligation under the fee agreement was limited to $5,000, and that consequently the husband could not be required to pay counsel fees of more than $5,000.

The husband’s contention is without merit. A husband’s obligation to pay counsel fees, in a case in which alimony or child support is claimed, is imposed by law. The question of what constitutes a reasonable counsel fee lies within the chancellor’s discretion. In our view, a valid agreement between a wife and her attorney providing for a specified fee does not limit the chancellor’s discretion in determining a reasonable fee, or require him to award no more than the agreed amount. Other state courts agree. Assuming without deciding that the wife’s obligation here was limited to $5,000, the chancellor did not err in awarding counsel fees greater than that amount.

II

The husband further contends that the counsel fees were excessive because there was no evidence to show the time counsel spent conducting the case. This contention is without merit.

In determining the amount for a reasonable counsel fee, the ordinary factors of labor, skill, time and benefit, as well as the financial resources of the parties, must be taken into account. While time is one of the applicable factors, the record need not contain evidence specifically delineating the number of hours spent by counsel. Because the record itself discloses the nature of the proceedings, it is some evidence of the extent of the attorney’s efforts. Given this evidence, the chancellor may rely upon his own knowledge and experience in appraising the value of an attorney’s services.

Here the record shows that the chancellor took all of the appropriate factors, including time, into account. He examined the record, considered the nature of the proceedings, and observed counsel’s conduct at the hearings before him. There was more than sufficient evidence to support his findings. We find no abuse of discretion.

Ill

The husband further contends that counsel fees should not have been awarded because the evidence established that the wife’s income and assets were sufficient to care for her needs. He maintains first that the real property held by the wife should have been considered as a financial resource in determining her ability to pay counsel fees.

Maryland Code (1957, 1973 Repl. Vol.) Art. 16, § 5 provides that in cases such as this counsel fees shall be awarded only if the wife’s income is insufficient to care for her needs. Courts in other states have recognized that it is the income from the wife’s separate estate that is to be considered in determining her ability to pay counsel fees. A wife need not be required to impair or encumber her capital, including real estate, to finance her participation in divorce litigation. Where the wife’s assets, including real estate, do not produce adequate income, she may be entitled to counsel fees.

Here the record shows that as a result of the divorce litigation, the wife held, as a tenant in common with the husband, interests in real property valued between approximately $205,000 and $222,500. While some of the property had income-producing potential, none was producing income to the wife at the time, or was likely to do so in the foreseeable future. Under these circumstances, the chancellor did not abuse his discretion by failing to take into account the wife’s interests in real property in determining her ability to pay counsel fees.

The husband maintains next that the amount of alimony awarded should have been considered in determining the wife’s ability to pay counsel fees. The question of whether the wife’s income is sufficient to care for her needs ordinarily should be considered separately in relation to her ordinary living expenses, and in relation to her extraordinary expenses for divorce litigation. The chancellor did not abuse his discretion in failing to take into account the amount of alimony awarded in determining the wife’s ability to pay counsel fees.

Finally the husband maintains that the wife’s ability to work should have been considered. The record shows that the wife had not been employed since 1958. Her youngest son, born in 1964, aged 11 at the time of the hearings, has serious physical disabilities, and requires after-school supervision from her. The evidence supports the chancellor’s finding that the wife was justified in remaining home rather than seeking employment. Under these circumstances, the chancellor did not abuse his discretion in failing to take into account the wife’s alleged ability to work, in determining her ability to pay counsel fees. There was adequate evidence to support the chancellor’s finding that the wife’s income was insufficient to care for her needs. His conclusion that she was entitled to counsel fees was justified.

IV

The husband finally contends that the chancellor erred in denying his petition for counsel fees incurred in the defense of a contempt proceeding. He maintains that the wife brought the contempt proceeding in bad faith and without substantial justification, because she filed her petition for contempt with a judge, contrary to Third Judicial Circuit Rule S 4 b, which he alleges requires filing with the clerk of the court. He argues that, had the proper procedure been followed, the show cause order would not have been issued, because the Probation Department would have verified that payment of the arrearages had been made. He concludes that under Maryland Rule 604 (b) he is entitled to costs and reasonable expenses incurred in opposing those proceedings.

■ Maryland Rule 604 (b) provides:

“b. Bad Faith — Unjustified Proceeding — Delay.
“In an action or part of an action, if the court finds that any proceeding was had (1) in bad faith, (2) without substantial justification, or (3) for purposes of delay the court shall require the moving party to pay to the adverse party the amount of the costs thereof and the reasonable expenses incurred by the adverse party in opposing such proceeding, including reasonable attorneys’ fees.”

The question of reimbursement for litigation costs and expenses under this Rule is a matter which lies within the discretion of the court.

Here the record shows that on 16 December 1975, the wife filed her petition for contempt, alleging that from 7 November 1975 the husband had not paid alimony or child support. On that date, the chancellor issued an order to show cause.

At a hearing held on 24 December 1975, on the husband’s “Petition for Rehearing and to Revise Decree,” and “Motion for Attorney’s Fees,” as well as the wife’s “Petition for Contempt,” the parties did not disagree that the arrearages were paid to the Probation Department before 16 December 1975, but that the wife did not receive payment until after that date. Moreover, at that hearing the wife withdrew her claim of contempt, and her petition was later denied. Under these circumstances, even assuming without deciding that Rule S 4 b was violated, we find no abuse of discretion.

Decree as amended on 13 November 1975 and order of 29 December 1975 affirmed.

Costs to be paid by appellant.

      . The decree was entered on 15 October 1975, and amended on 13 November 1975, at wh'ich time its operation and effect was suspended until 30 December 1975, pursuant to the court’s revisory power over unenrolled decrees. Maryland Rule 671; Norris v. Ahles, 115 Md. 62, 65 (1911).

      . Maryland Code (1957, 1973 Repl. Vol.) Art. 16, §§ 5 and 5A; Jackson v. Jackson, 272 Md. 107, 111-12, 321 A. 2d 162, 165 (1974); Rhoderick v. Rhoderick, 257 Md. 354, 359-62, 263 A. 2d 512, 516 (1970); Stein v. Stein, 251 Md. 300, 302-03, 247 A. 2d 266, 268 (1968); Binder v. Binder, 16 Md. App. 404, 415, 297 A. 2d 293, 298 (1972); Bracone v. Bracone, 16 Md. App. 288, 293-94, 295 A. 2d 798, 801 (1972).

      . Danziger v. Danziger, 208 Md. 469, 475-76, 118 A. 2d 653, 656 (1955); Lopez v. Lopez, 206 Md. 509, 520-21, 112 A. 2d 466, 471 (1955); Bennett v. Bennett, 197 Md. 408, 416, 79 A. 2d 513, 517 (1951); Mulhall v. Mulhall, 120 Md. 22, 26, 87 A. 490, 492 (1913); Flanagan v. Flanagan, 17 Md. App. 90, 97, 299 A. 2d 520, 522-23, aff'd, 270 Md. 335, 331 A. 2d 407 (1973).

      . The cases relied upon by the husband are inapposite. In Rubin v. Rubin, 233 Md. 118, 129, 195 A. 2d 696, 702 (1963), the Court of Appeals ruled that the charges of a private investigator could be allowed as “suit money.” An additional issue considered was whether the fact that the wife had paid part of the charges precluded a determination that her income was insufficient to pay for that particular need. There the question of the reasonableness of the charges was not raised. The court held that the husband was not required to reimburse his wife for that part of the charges for which she had paid. It did not hold that an agreement between a wife and her counsel necessarily determines the question of what constitutes a reasonable fee.
      Mortgage Investors of Washington v. Citizens Bank & Trust Co. of Maryland, 29 Md. App. 591, 349 A. 2d 647 (1976) involved a suit between a lender and a borrower, parties to a promissory note which specified the amount to be paid for attorney’s fees in the event of suit upon default. The actual attorney’s fee that the lender was obligated to pay was less than the specified amount. This Court held that the lender could recover up to the specified amount, but not more than it was obligated to pay.
      The instant case involves a suit between a husband and wife rather than a lender, and a borrower. Moreover, the husband, unlike the borrower, was not a party to any agreement to pay counsel fees. This case does not involve a contractual obligation, but rather one imposed by law. Here the wife cannot be enriched by the court’s award, because the award itself determines the amount of a reasonable fee.

      . Corey v. Corey, 81 Ind. 469, 473 (1881); Stevens v. Stevens, 206 So. 2d 558, 559 (La. App. 1968); Gallagher v. Gallagher, 190 So. 2d 916, 919 (La. App. 1966); Cutchall v. Cutchall, 221 P. 457, 458 (Okl. 1923); Brook v. Morriss, Morriss & Boatwright, 212 S.W.2d 257, 260 (Tx. Cv. App. 1948).

      . In view of this conclusion, the husband’s subsidiary contention, that those portions of the agreement between the wife and her attorney which provided for contingent fees were invalid, need not be considered.

      . Stein, supra, 251 Md. at 303, 247 A. 2d at 268; Waters v. Waters, 191 Md. 436, 441, 62 A. 2d 250, 253 (1948); Flanagan, supra, 17 Md. App. at 97, 299 A. 2d at 523; Quinn v. Quinn, 11 Md. App. 638, 652, 276 A. 2d 425, 432 (1971) .

      . Renner v. Renner, 16 Md. App. 143, 157, 294 A. 2d 671, 678 (1972); see, Harrison v. Perea, 168 U. S. 311, 325, 18 S. Ct. 129, 134-35 (1897); Van Dyke v. Bluefield Gas Co., 210 F. 2d 620, 622 (4th Cir.), cert. denied, 347 U. S. 1014, 74 S. Ct. 870 (1954); Twentieth Century-Fox Film Corp. v. Brookside Theatre Corp., 194 F. 2d 846, 859 (8th Cir.), cert. denied, 343 U. S. 942, 72 S. Ct. 1035 (1952); Stanolind Oil & Gas Co. v. Guertzgen, 100 F. 2d 299, 302 (9th Cir. 1938); Cooley v. Cooley, 45 Ala. 461, 231 So. 2d 915, 917 (1970); Hodson v. Hodson, 276 Ala. 227, 160 So. 2d 637, 640-41 (1964); Scott, Blake & Wynne v. Summit Ridge Estates, Inc., 251 Cal.App.2d 347, 59 Cal. Rptr. 587, 594 (1967); Spencer v. Harmon Enterprises, Inc., 234 Cal.App.2d 614, 44 Cal. Rptr. 683, 688 (1965); Dew v. Simon, 95 A. 2d 482, 484 (D.C. Mun. App. 1953); Tyler v. Dixson, 57 A. 2d 648, 649-50 (D.C. Mun. App. 1948); First National Bank of Kansas City v. Danforth, 523 S.W.2d 808, 825 (Mo. 1975); Robichaux v. Robichaux, 289 So. 2d 837, 838 (La. App. 1974); Sebree v. Rosen, 393 S.W.2d 590, 599 (Mo. 1965); Jordan v. Freeman, 40 N.Y. App.Div.2d 656, 336 N.Y.S.2d 671, 672 (1972); Testerman v. Burt, 143 Okl. 220, 289 P. 315, 329 (1930); Fisher v. Fred W. German Co., 150 Or. 507, 44 P. 2d 1076, 1078 (1935); Hatley v. Hatcher, 376 S.W.2d 943, 944 (Tx. Cv.App. 1964); Swenson v. Lowe, 5 Wash. App. 186, 486 P. 2d 1120, 1125 (1971); contra, Deckman v. Deckman, 15 Md. App. 553, 569, 292 A. 2d 112, 120-21 (1972); see, Grunin v. International House of Pancakes, 513 F. 2d 114, 126 (8th Cir.), cert. denied, 96 S. Ct. 124 (1975); Lindy Bros. Builders, Inc. v. American Radiator & Standard Sanitary Corp., 487 F. 2d 161, 166-69 (3rd Cir. 1973); Ortiz v. Ortiz, 211 So. 2d 243, 245 (Fla. 1968); In re Max Lieber, 103 So. 2d 192, 198 (Fla. 1958).

      . In view of these findings, the wife’s contention that the counsel fees were inadequate is also without merit.

      . See Hood v. Hood, 138 Md. 355, 360, 113 A. 895, 897 (1921).

      . Weinberg v. Weinberg, 67 Cal. 2d 557, 63 Cal. Rptr. 13, 21 (1967); Baldwin v. Baldwin, 28 Cal. 2d 505, 170 P. 2d 670, 677 (1946); Janssen v. Janssen, 48 Cal.App.3d 425, 121 Cal. Rptr. 701, 703 (1975); In re Marriage of Borson, 37 Cal.App.3d 632, 112 Cal. Rptr. 432, 437 (1974); Sigesmund v. Sigesmund, 115 Cal.App.2d 628, 252 P. 2d 713, 715 (1953); Richards v. Richards, 44 Hawaii 491, 355 P. 2d 188, 193 (1960); Polokoff v. Polokoff, 34 N.Y. Misc.2d 414, 226 N.Y.S.2d 597, 600 (1962); Keith v. Keith, 53 N.Y.S.2d 632 (N.Y. 1945); State ex rel. Cooper v. Garvin, 139 W. Va. 845, 82 S.E.2d 612, 615 (1954); Kittle v. Kittle, 86 W. Va. 46, 102 S. E. 799, 802-03 (1920); contra, Fulling v. Fulling, 50 Del. 451, 134 A. 2d 263, 265 (1957); Craft v. Craft, 226 N.W.2d 6, 9 (Iowa, 1975); Sullivan v. Sullivan, 192 Neb. 841, 224 N.W.2d 542, 543 (1975).

      . Von Bretzel v. Von Bretzel, 10 Md. App. 512, 515, 276 A. 2d 121, 122 (1970); see, Hood, supra, 138 Md. at 360, 113 A. at 897 (dictum).

      . The husband further contends that the award of counsel fees to the wife violated his rights under “the Equal Rights Amendment of the Maryland Constitution and the Equal Protection Clause of the United States Constitution under the particular and limited facts of this case.” He concedes that neither constitutional provision prohibits an award of counsel fees where there is a showing of need. In view of our holding that the record supports the chancellor’s finding of need, this contention need not be further considered.

      . Third Judicial Circuit Rule S 4 b provides:
      “VERIFICATION OF PETITION FOR CITATION FOR CONTEMPT.
      “Upon receipt of a petition for citation for contempt for failure to make support payments as ordered by the Court, the Clerk shall submit such petition to the Probation Department for verification on the petition of the amount alleged to be due and unpaid. Upon such verification, and in cases where payments have not been made through the Probation Department, the Clerk shall issue a Show Cause Order as of course. Where the petition is filed by the Probation Department no further verification shall be required.”

      . At a hearing on 24 December 1975, the husband chose not to pursue his additional contention that he was entitled to counsel fees under Rule 604 (b) because the wife’s affidavit in support of her contempt petition was “false and fraudulent.” This contention, not having been decided below, is not properly before us for review. Maryland Rule 1085.

      . Schmidt v. Chambers, 265 Md. 9, 40, 288 A. 2d 356, 373 (1972); see Sinclair Estates, Inc. v. Charles R. Guthrie Co., Inc., 223 Md. 572, 575, 165 A. 2d 775, 777 (1960); Hamilton v. Schwehr, 34 Md. 107, 117 (1871); Mears v. Moulton, 30 Md. 142, 144, 146 (1869); Hoffman v. Glock, 20 Md. App. 284, 293, 315 A. 2d 551, 557 (1974).


author: Moylan, J.,

text:
    MICHAEL LEON McCREE, ROBERT LAVERN DIXON AND JOHN JUNIOR GARRIS v. STATE OF MARYLAND
    [No. 1381,
    September Term, 1975.]

      Decided September 21, 1976.

      The cause was argued before Thompson, Moylan and Menchine, JJ.

      Leslie L. Gladstone, Assigned Public Defender, for appellant Michael Leon McCree. Howard L. Cardin, Assigned Public Defender, for. appellant Robert Lavern Dixon. Harold Buckman, Assigned Public Defender, for appellant John Junior Garris.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Stephen Sacks, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

The appellants, Michael Leon McCree, Robert Lavern Dixon and John Junior Garris, were tried jointly by a Baltimore City jury, presided over by Judge Basil A. Thomas, upon charges of murder and armed robbery. The appellants McCree and Dixon were convicted of murder in the first degree and armed robbery and were sentenced to consecutive terms of life imprisonment and ten years. The appellant Garris was convicted of second-degree murder and armed robbery and was sentenced to consecutive terms of thirty years and fifteen years.

All three appellants make the following contention upon appeal:

(1) That they were prejudicially denied their motions for a trial severance.

The appellants Dixon and Garris make the following joint contention:

(1) That the trial judge erroneously refused to permit them to question a State’s witness concerning a prior but constitutionally invalid conviction.

The appellant Garris alone makes the following contention:

(1) That the evidence was not legally sufficient to have permitted the cases against him to go to the jury.

The appellant Dixon alone makes the following contention:

(1) That the trial judge erroneously refused to exclude the fruits of an unconstitutional search of and seizure from an automobile operated by him.

The appellant McCree alone makes the following contentions:

(1) That the trial judge erroneously refused to exclude the fruits of a search of his belongings taken from the desk clerk of a New York hotel just subsequent to McCree’s arrest;

(2) That the trial judge erroneously denied his Motion for Mistrial on the ground of an improper comment by the State’s Attorney in closing argument to the jury;

(3) That the trial judge erroneously permitted the State’s Attorney to ask leading questions to key State’s witnesses; and

(4) That the trial judge erroneously refused to strike juror Jenny Malone for cause.

In order to set the stage factually for consideration of the severance contention and for consideration of the two distinct search and seizure contentions, we will set out the involved and at times circumstantial web of evidence linking in all three appellants. Since only the appellant Garris has questioned the legal sufficiency of the evidence against him, we will, for the sake of judicial economy, focus upon him and discuss the significance of the evidence against him as we recount the broader narrative. In the course thereof, we will, without pause, discuss the physical evidence as well as the testimony because Garris himself does not, upon appeal,, question the constitutionality of the searches and seizures. The physical evidence would, therefore, be admissible against him, notwithstanding its fate in the cases against the other two appellants.

The evidence established unequivocally that all three appellants were homosexual, were female impersonators and were prostitutes. The same was true with respect to at least several of the witnesses in the case. Throughout the testimony, witnesses referred to any of the three appellants by the feminine pronouns “she” or “her” rather than by the masculine pronouns. The three appellants had, moreover, female names which were used more regularly in the testimony than were their male names. For sake of reference, we list them below:

Robert Dixon — Laverne, Sweet Thing or Cobra
Michael McCree — Lisa
John Garris — Theresa

The murder and robbery victim, Saul Charles Friedenberg, was a sexual client of Robert “Laverne” Dixon. The murder occurred at some time after 2 p.m. on July 8, 1974. Mr. Friedenberg left his home that morning for work. He was wearing a yellow-gold Bulova wristwatch and a sapphire ring and driving a 1973 yellow Cadillac. When he failed to return home by 6 p.m. that evening, his wife became apprehensive. On the following day, July 9, 1974, his wife filed a missing person’s report. The murder occurred in the second-floor rear apartment of the appellant Robert “Laverne” Dixon at 1715 N. Calvert Street. The body was found three days later, on July 11,1974, in a closet, the door to which had been nailed shut from the outside. A refrigerator had been pushed in front of the door. The body lay face down on the floor. A towel was draped over the back of the head. The ankles were bound. The hands were tied behind the back. His shirt and his jacket were missing. The zipper to his trousers was open. One shoe was found under his head and the other was lying in an otherwise empty closet. The watch and the sapphire ring were missing as were all of Mr. Friedenberg’s credit cards. The yellow Cadillac was also missing. Mr. Friedenberg had been strangled with a length of insulated electric wire.

The evidence demonstrated beyond peradventure of a doubt that the appellants Dixon and McCree had participated in the murder and robbery. Indeed, they do not contest the legal sufficiency of the evidence against them. Our focus will be upon the case against the appellant Garris, who does contest the legal sufficiency of the evidence against him. In a jury trial, the test as to whether the evidence was sufficient in law to permit the trial judge properly to deny the appellant’s motion for a judgment of acquittal and to submit the case to the jury is whether the admissible evidence adduced at the trial either showed directly, or circumstantially, or supported a rational inference of, the facts to be proved, from which the jury could fairly be convinced, beyond a reasonable doubt, of the appellant’s guilt of the offense charged. Williams v. State, 5 Md. App. 450, 459; Metz v. State, 9 Md. App. 15, 23. We conclude that the evidence against the appellant Garris was sufficient to permit the jury to be convinced of his guilt beyond a reasonable doubt.

Janice Alexander, an admitted prostitute, lived at 1707 N. Calvert Street, just four doors south of the residence of the appellant Dixon. She had known Dixon for over a year. She had visited his apartment and she knew him to be both a female impersonator and a prostitute. She was sitting on her front steps at approximately 2 p.m. on July 8, 1974, when she saw a yellow Cadillac drive up and stop in front of the appellant Dixon’s apartment. She saw the appellant get out and enter his apartment. He was dressed in female clothing. She later identified photographs of the deceased as photographs of the white man who drove up in the Cadillac with Dixon. That man followed Dixon into the apartment approximately one minute later. She had noticed Dixon and Mr. Friedenberg converse for a few minutes before Dixon, later followed by Mr. Friedenberg, entered 1715 N. Calvert Street.

Shortly thereafter, Mrs. Alexander noticed the other two appellants, Michael McCree and John Garris, drive up in a red Maverick automobile. She was acquainted with both them. She knew Garris only as “Theresa.” The two had a baby with them. They parked in an alley. A brief conversation ensued between Mrs. Alexander and the two, in the course of which they declined to give her a ride to the 2000 block of N. Calvert Street. McCree, in the presence of John “Theresa” Garris, asked Mrs. Alexander where “Laverne” was. She replied that “Laverne” was “upstairs with a trick.” She defined the word “trick” as connoting a man who pays for sexual pleasure. McCree, still in the presence of Garris, replied, “that must be the car,” indicating the yellow Cadillac. McCree and Garris handed the baby temporarily to Mrs. Alexander, who kept it while McCree and Garris went back into the alley behind the rear of 1715 N. Calvert Street. They returned about ten minutes later. Mrs. Alexander testified that as McCree and Garris were standing in her presence, McCree said, “We should bust this man in the head and take his money and car.” Mrs. Alexander volunteered the observation that it was a stupid idea. The two men then left her presence and then went back in the alley behind 1715 N. Calvert Street. Mrs. Alexander left the neighborhood at that point. When she returned later that afternoon, she noticed that the Cadillac was gone. She learned from Robert “Laverne” Dixon’s roommate that Dixon and the other two appellants had gone to New York.

Dwight Leroy Thomas testified that he had been living at 1715 N. Calvert Street for approximately two months prior to July 8, 1974, as the roommate of the appellant Dixon. Dixon actually rented the apartment but Thomas paid the rent. Dixon had no regular job but got’ money occasionally “from friends and people he met.” Thomas acknowledged that Dixon sometimes brought men to the apartment. Dixon contributed what he could to the rent and the household expenses. Thomas testified that he and Dixon were lovers and that Dixon habitually dressed as a female.

Thomas worked at a restaurant in Pikesville throughout the day of July 8,1974. He returned home at approximately 5 p.m. When he entered his apartment, he noticed broken glass on the floor. Later police investigation revealed that there were also bloodstains on both the floor and on a curtain dividing two rooms of the apartment. As Thomas began to pick up the broken glass from the floor, the appellant McCree walked into the room from the rear or kitchen area of the apartment. McCree indicated that he had broken a bottle and had cut himself in the course of picking it up. Thomas continued to pick up the broken glass. He then heard voices and walked to the bedroom part of the apartment where he found the appellant Dixon and the appellant Garris and a baby. Dixon was packing his clothes for a trip to New York. Shortly thereafter, Thomas went downstairs to bid the threesome goodbye. Both the yellow Cadillac and the red Maverick were parked together in the alley behind 1715 N. Calvert Street. Dixon and McCree drove off in the Cadillac and Garris followed in the red Maverick. Dixon indicated that they would be gone a couple of days.

Over the course of the next several days, Thomas began to detect a stronger and stronger odor in the apartment and began to notice an ever-increasing accumulation of flies. On July 11, he moved the refrigerator from in front of the closet door and noticed that the door was nailed shut. He tried to pry it loose. He testified, “I just barely had it cracked and could see something in it. What, I didn’t know.” Thomas immediately called the police and informed them that “something was up in the closet, a body.”

We notice at this point in the narrative that the appellant Garris, who was with the appellant McCree and the baby in the neighborhood of 1715 N. Calvert Street at approximately 2:30 p.m., is still with McCree and the baby (and now with the appellant Dixon as well) inside 1715 N. Calvert Street at 5 p.m. At the earlier time, Garris had been with McCree as McCree discussed “busting the man on the head and taking his money and car.” Garris and McCree had then walked to the alley behind 1715 N. Calvert Street. In the meantime, the yellow Cadillac, which Garris realized belonged to Dixon’s “trick,” had been moved from the front street to the rear alley. The Cadillac was one of the two automobiles in which the combined party departed for New York. When Thomas returned home, Garris was with his two codefendants in the apartment. That apartment within the preceding two hours had been not simply the scene of the murder but also the scene of reasonably elaborate efforts first to bind the victim hand and foot and then to hide the dead body. The door had been nailed shut and the refrigerator had been moved in front of it, all by approximately 5 p.m. As subsequent recounting of testimony will reveal, Garris was, moreover, in possession of some of the effects of the deceased robbery and murder victim.

At some time during that afternoon, yet a fourth person, Bruce “Pepsie” Johns, had been approached at his home at 317 E. North Avenue by the appellant Dixon and informed that the whole group would shortly be leaving for New York and that Johns should come along. Johns was also a female impersonator and a prostitute. Dixon informed him, “We beat a trick and took his car.” Johns was given about an hour to get packed and was to meet the others at 1715 N. Calvert Street. By the time he got to the intersection of North Avenue and Guilford Avenue, however, he was met by his three companions, driving the two automobiles. Johns testified that before leaving Baltimore City, both automobiles drove to a pawnshop on Pennsylvania Avenue where Dixon and McCree went in and pawned the gold watch. During the subsequent ride to New York, the group stopped a number of times along the way and switched automobiles, with all three appellants taking a turn in each of the cars. At some point during the journey, Dixon repeated references to Johns about having beaten a trick and taking his car and then telling Johns, “Don’t worry about it.” Because of the constant switching of drivers, Johns could not testify with any certainty as to whether McCree or Garris were present at the time of such conversation. The whole group arrived in New York at approximately 11 p.m. They parked the automobiles and walked around for a time.

Later during the day of July 9, all three appellants and Johns and one Kim Wright, checked into and shared a single room at the Bond Hotel in Greenwich Village. Johns testified that he had known all of the appellants for a period of some years at least. While at the Bond Hotel, an argument broke out between the appellant Garris and the appellant McCree over the use of an Exxon credit card. McCree wanted to use it to get some gasoline. Garris insisted that they could not use it. Johns observed the Exxon card, as well as an American Express credit card, a Saks Fifth Avenue card and a Stratton Inn card. He observed that they bore the name “Friedenberg.” The following evening, when the group had dinner at an Italian restaurant named Valentino's, Garris paid for the meal with Friedenberg’s American Express credit card.

The next witness was Kim Wright, a New York resident, who had known Dixon well for some years. Kim Wright was also a female impersonator and prostitute. “Kim” met the group at approximately 5 a.m. on the morning following their arrival in New York. He recalled McCree telling him, “We killed a man and took his car.” Although he did not ascertain precisely who was encompassed within the pronoun “we,” he stated that the appellant Garris was present at the time the statement was made to him by McCree. McCree elaborated that they had tied the man up and thrown him in a closet. “Kim” was present at the meal at Valentino’s, where John “Theresa” Garris paid for the meal with the credit card. In reference to the use of the credit card, Garris assured “her” that “we weren’t going to get busted.”

On August 4, 1974, McCree was arrested in a New York hotel. Seized from him at that time was the pawn ticket for the victim’s wristwatch. Three days later, on August 7, 1974, the appellant Dixon was arrested in Delaware, while driving the victim’s yellow Cadillac. A motel key recovered from him led to further investigation which revealed that he was registered in a nearby motel under the name of S. C. Friedenberg. The appellant Garris was arrested in October, 1974.

With respect to the appellant Garris, we hold that the evidence was legally sufficient to have permitted the jury to find, beyond a reasonable doubt, that he did participate along with the codefendants, either as a principal in the first degree or as a principal in the second degree, in the robbery and in the murder of Mr. Friedenberg. His joint exclusive possession of recently stolen goods — both Cadillac and credit cards — permits the inference that he was the thief (or one of the thieves). The corpus delicti was such, moreover, as to establish that to be the thief is also to be the robber and murderer. Neither the appellant Garris nor either of the other appellants took the stand or offered any defense. There was, therefore, no reasonable and believable explanation offered of that incriminating possession. This possession alone would be legally sufficient evidence to sustain the convictions, but the recounting of all of the evidence of guilt reveals that there was massive other incriminating evidence.

All three of the appellants contend that they were erroneously denied trial severances from each other. The law with respect to the granting of a severance is clear. As we stated in Peterson v. State, 15 Md. App. 478, at 496:

“The decision as to whether to grant a severance lies within the sound discretion of the trial judge under Maryland Rule 735, and one of the factors to be considered is the saving of time and expense which unnecessary separate trials would entail. Jennings v. State, 8 Md. App. 312. The Assistant State’s Attorney proffered and the evidence bore out such a strong probability of a common criminal effort by all defendants, including Logan, that the evidence admissible as to one would have been admissible as to all.”

In this case, all three appellants were involved in a single incident. The evidence admissible against any one of them was in this case admissible as to all. There was no violation of the confrontation law under Bruton v. United States, 391 U. S. 123, because the State chose, as a deliberate tactic, not to offer extrajudicial statements given to the police by the appellants Dixon and McCree, in the course of which they admitted their presence at the scene although each denied his individual'-involvement. There was, under Bruton, no prejudice suffered at the trial. The strained theory now offered by the appellants that the mere existence of those extrajudicial statements, being held in reserve for impeachment purposes should either Dixon or McCree give contrary testimony under oath, somehow “chilled” their defense is speculative in the extreme. We know of no law pushing the Bruton principle that far and we decline to make such law.

In terms of the factors here reenforcing the sound exercise of discretion of the trial judge in denying the severance, we note that the following proffer was made by the prosecution:

“One factor is in saving of time and expense for unnecessary, separate trials would in this particular matter treble the time, treble the expense. I can understand Mrs. Bothe’s point to the right of the defendant and it is a fact the State has brought in three witnesses from New York and two witnesses from Delaware. It may not be all the witnesses would arrive from out of State. They will be placed in hotels for the duration of the trial. The expenses are enormous for the duration of the trial, possibly two weeks.”

We see no abuse of discretion. We feel here as we did in Mason v. State, 18 Md. App. 130, at 141:

“Under the circumstances of this case, where the evidence necessary to convict one of the appellants was the same evidence required to convict all of them, to have granted a severance would have resulted in a multitude of trials and unnecessary expense.”

The appellants Garris and Dixon both contend that the trial judge erred in refusing to permit the State’s witness Dwight Thomas to be cross-examined about a prior criminal conviction for purposes of impeaching his credibility. At the time of trial, Thomas was either 27 or 28 years of age. The conviction in question was for the crime of armed robbery. That conviction occurred in Baltimore City some 10 or 11 years earlier, when Thomas was either 16 or 17 years of age. In urging that the cross-examination not be permitted, the State argued that the complex of such cases as Long v. Robinson, 316 F. Supp. 22 (D. Md. 1970); Kemplen v. Maryland, 428 F. 2d 169 (4th Cir. 1970); and Greene v. State, 11 Md. App. 106 (1971), operated retroactively to remove the criminal stigma from proceedings involving defendants under the age of 18 who would (barring possible waiver) have been treated as juveniles in all areas of Maryland outside Baltimore City. In the exercise of his discretion, Judge Thomas elected to give the benefit of that philosophy to the witness Dwight Thomas. Recognizing that what is involved here is essentially peripheral, even more so when dealing with a mere witness and not a defendant himself, and that wide discretion is vested in the trial judge to control the ebb and flow of testimony, we see no abuse of discretion here. Davis v. Alaska, 415 U. S. 308, urged upon us by the appellants, is not remotely apposite. That case, involving a juvenile proceeding then pending against a witness, was dealing with possible bias because of then-pending proceedings. The present case, involving an adjudicated conviction a full decade in the past, does not remotely call for the invocation of the principle of Davis v. Alaska. We see simply no abuse of discretion here.

We turn our attention now to the search and seizure question raised by the appellant Dixon. He objects to the search of the yellow Cadillac conducted by the Delaware police, when they stopped him and arrested him on August 7, 1974, near Dover, Delaware. He was handcuffed and placed in the back seat of a patrol car. Recovered from the Cadillac was his purse, which contained a key to a room at the Dutch Village Motel in Newcastle, Delaware. The tracing back of that key led to the fact that Dixon was registered at that motel in the name of the murder victim, S. C. Friedenberg.

The appellant urges strenuously upon us that his purse on the front seat of the Cadillac was beyond the permissible search perimeter under Chimel v. California, 395 U. S. 752. He may be perfectly correct in that contention but a “search incident to lawful arrest” is by no means the only exception to the warrant requirement which might serve to legitimate the warrantless search of the yellow Cadillac here. The police team knew that murder and robbery had been committed and that the yellow Cadillac itself was one of the fruits of the robbery. It was itself evidence, therefore, above and beyond being the container of other probable evidence — the stolen credit cards, possible bloodstains, fingerprints or other identifying links to the perpetrators of the crime. As it was stopped on U.S. Route 13 one mile east of Dover, there was furthermore exigency. Those two factors combine to legitimate warrantless automobile searches under the doctrine of Carroll v. United States, 267 U. S. 132.

The car, moreover, was stolen and the defendant Dixon had, therefore, no standing to object to its search. Palmer v. State, 14 Md. App. 159. There was simply no legitimate expectation of privacy by a thief in the enjoyment of the stolen automobile.

The issue would go against the appellant Dixon for yet a third reason. Implicit in the complaint given to the police by the murder victim’s widow, Mrs. Friedenberg, and by her description of the stolen property, was her full consent to the police to recover and to seize those items whenever and wherever they should track them down. There is no question but that the true owner of the automobile voluntarily consented to all police action taken with respect thereto. Schneckloth v. Bustamonte, 412 U. S. 218.

The remaining contentions were raised by the appellant McCree alone. In one of them, he objects to the warrantless search and seizure which occurred at the time of his arrest in New York. McCree was arrested at the Strand Hotel in New York City on August 1, 1974, by Detectives Furrie Cousins and George Kibbler of the Baltimore City Police Department, Assistant State’s Attorney Michael Glushakow and three New York City police officers. He was arrested at gunpoint in his bedroom. As he was led downstairs, McCree indicated that he wanted his property from the night manager of the hotel, since he knew that he would not be returning to the hotel. The night manager turned over a bag. The detectives searched it. In that bag was the pawn ticket for Mr. Friedenberg’s gold Bulova watch. The purpose of a warrantless search incident to lawful arrest is to prevent an arrestee from having available weapons either to harm the officers or to make good an escape and further to prevent the arrestee from destroying evidence. Although the bag held by the night manager might not have been literally within McCree’s Chimel perimeter at the moment of his arrest upstairs, it clearly would have come into that “floating zone” of reachability, lungeability or graspability if it had been turned over to him by the night manager. As Judge Thomas found in ruling the evidence admissible:

“It would seem to me under the circumstances of this case, the facts of this case, if someone is asking for an envelope and the envelope being handed in the presence of police, the police have an obligation for two reasons, one to protect themselves in the event there is something in the envelope, whether it be a razor blade, small gun, or secondly, for the protection of the defendant. The defendant could very well put something in there, a razor blade, he might want to harm himself. In addition there could be contraband of some sort in there he would want to destroy. I don’t care how we look at it, this would be a proper purpose of the police. The police have an obligation or a right to examine that envelope.”

We concur in that judgment. See also United States v. Edwards, 415 U. S. 800. We note, moreover, that the pawn ticket was eminently destructible — by way of being swallowed, or being tossed away, or being torn into little pieces or being flushed down a toilet — had it been permitted to come into the unfettered control of the arrestee McCree.

McCree also claims that his Motion for a Mistrial was erroneously denied following improper comment by the State’s Attorney in closing argument to the jury. The point is utterly without merit. At issue was the principle that a fact finder may, from the possession of recently stolen goods, infer that the possessor was the thief. In his instructions to the jury, the trial judge phrased this principle in terms of a permitted inference, as did the Assistant State’s Attorney in his initial closing argument. The appellant McCree’s entire contention deals with the fact that in rebuttal argument, the Assistant State’s Attorney used the word “presume” instead of the word “infer.” He relies upon our lesson in careful semantics in this regard in Evans v. State, 28 Md. App. 640. He fails to appreciate that we also pointed out in Evans that many lawyers use the word “presume” to mean “infer.” Moreover, the appellant was free to argue any point of contested law as well as any ¡point of contested semantics as freely as was the State. We do not examine argument of counsel in searching for possibly mistaken or confusing statements of law as we examine the instructions given by a trial judge. Without further comment, the trial judge was absolutely correct in denying this frivolous Motion for a Mistrial. A fortiori, he did not abuse his discretion in doing so.

The appellant McCree’s next-to-last contention is that the trial judge erroneously permitted the Assistant State’s Attorney to ask leading questions of State’s witnesses. The two leading questions here in issue were efforts by the State at the very outset of the testimony of Kim Wright and of Bruce Johns to direct the attention of the witnesses to the days of July 9 and July 8 respectively. We see absolutely no abuse of discretion in the trial judge in permitting the State so to focus the attention of the witnesses. Johnson v. State, 9 Md. App. 327, 332.

The appellant McCree’s final contention is that the trial judge erroneously refused to strike a potential juror Jenny Malone for cause. During the voir dire examination, the following colloquy took place.

“(Jenny M. Malone entered chambers, at which time the following took place.)
MRS. MALONE: This morning when you called the name of the witnesses, you called Janie Alexander. I think that is her married name, her last name. She was in the hallway. She stopped me, she told me she was in the case. I told her I couldn’t talk to her. I knew one of them.
THE COURT: Are you social friends? See each other?
MRS. MALONE: No, not for the last three years.
THE COURT: Would the fact she may be a witness in this case, you think that might in any way influence your judgment in the case?
MRS. MALONE: No.
THE COURT: It would not?
MRS. MALONE: No.
MR. GLADSTONE: Would you be more or less likely to believe her testimony than any other witness merely because you know her?
MRS. MALONE: I have to- believe both sides. Would I believe her more than I would believe someone else?
MR. GLADSTONE: Yes.
MRS. MALONE: No.
MR. GLADSTONE: How well did you know her?
MRS. MALONE: We were friends in school but after I got out of school, I never saw her any more.”

In the first place, we think the ruling of the judge in refusing to strike Mrs. Malone for cause was not in error. A juror may be struck for cause only where he or she displays a predisposition against innocence or guilt because of some bias extrinsic to the evidence to be presented. Johnson v. State, 9 Md. App. 143, 149. We note, moreover, that Mrs. Malone was struck peremptorily and did not sit upon the jury. The only arguable claim the appellant McCree could therefore make would be that he was required to use up unnecessarily one of his store of peremptory challenges. This could only be material if at the end of jury selection, he did not have unused challenges left over. The appellant McCree does not maintain that this was the case. At the appellate level, the burden is upon him to prove error, not upon the State to prove non-error. This burden he has failed to carry. Our examination of the record goes further and indicates, as we examine the lists of panel members who were called and the notations made on those lists by the clerk, that the appellant McCree used only 16 of his 20 peremptory challenges. Even if the initial ruling of the trial judge had been erroneous, therefore, the error would have been manifestly harmless.

Judgments affirmed.