author: Couch, J.,

text:
    KATHLEEN CLISE et al. v. PHILLIPS COAL, INC.
    [No. 225,
    September Term, 1978.]

      Decided November 3, 1978.

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

      Martha Wyatt, with whom were Alan Hilliard Legum and Legum, Cochran & Chartrand, P.A. on the brief, for appellants.

      William Walsh, with whom were Walsh, Walsh & Reinhart on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

This appeal comes to this Court following the action of the Circuit Court for Allegany County in reversing the decision of the Zoning Board of Appeals for Allegany County which had denied appellee’s application for a conditional use in an “A” district, namely an extractive type industry, commonly referred to as “strip mining”.

The facts surrounding, this controversy are largely uncontradicted, but the interpretations given these facts by the Board of Zoning Appeals and the Circuit Court are not necessarily consistent. Appellee, Phillips Coal, Inc., filed an application seeking approval of the Zoning Board for strip mining operation on 177 acres of land near the intersection of Old State Route 55 and New Dan's Rock Road in Allegany County. This acreage is situated in an A district and strip mining is allowed, subject to approval of the Zoning Board under the existing Zoning Ordinance. There are and have been other mining operations in the same general area. Appellee produced testimony and other evidence before the Board showing the area to be mined and, generally, its plans for controlling surface water drainage. Appellee further produced the testimony of a hydrogeologist, who expressed his opinion that only one nearby property could be affected by the operation so far as water supply was concerned. Appellee also proffered that a suitable bond would be procured for protection of the neighboring landowners, and that it also carried liability insurance.

Several protestants appeared before the Board, including appellant. The substance of their complaints focused on a fear of well collapse or contamination, adverse effects of blasting, and damage from surface water run-off. The Board also received in evidence a letter from the Allegany County Health Department to the Director of the Allegany County Planning and Zoning Commission which concluded that it felt “there is a potential for degradation of the wells since the casings and grout do not extend down through the coal seams and other strata.” The letter, which was actually from the Environmental Health Division, finally concluded:

“This office cannot be in favor of strip raining in the area of individual wells unless there is some guarantee that the residents will continue to receive adequate water of acceptable quality. If this guarantee is made, then we do not oppose the issuance of a permit____”

The Board ultimately denied the application, stating its reasons as follows:

“No. 1. It is not in the public interests reflected by the large number of adjoining property owners who vigorously oppose this Variance. The Board is concerned that the operation would adversely affect the pre-existing use of their properties for residential purposes.
No. 2. The board feels that the wells in the area near the proposed stripping site will be endangered by blasting, in addition a report received from the Allegany County Health Department would indicate a possible adverse effect on existing residential water supplies, through this proposed operation.
No. 3. We also feel that the rights of present homeowners and future homeowners will be jeopardized due to blasting; water run-off and noise from this type of operation; in this regard the testimony indicated that a certain number of preexisting homes are located adjacent to the proposed strip operation, in fact, it would seem that one such residence is within two hundred and fifty feet of the proposed operation.”

Thereafter, a timely appeal to the Circuit Court was taken. When the matter came on for hearing, objection was made to the appearance of Dan’s Mountain Watershed Association and Kathleen Clise as appellees. Counsel for the association conceded that the association was included in the answer he filed on behalf of Clise as a “pro forma” matter, but contended that Clise was an aggrieved party and had standing. After taking testimony from Clise showing where her residence was in relation to the property which was the subject of the application, the court concluded that Clise was a proper party.

The court then heard argument of counsel on the merits of the case, as revealed by the record of the Board proceedings. Upon conclusion of argument the court asked counsel for memoranda and held the case sub curia. After receiving memoranda from counsel, the court passed an order requiring additional evidence to be presented with respect to the property of one of the protestants, Robert Cadwallader. In due course additional evidence was received by the court, over the objection of appellant. This evidence consisted of testimony from the digger of Cadwallader’s well, the drill and blast foreman for appellee, a seismologist, and a geologist. The seismologist, offered as an expert by appellee, testified generally as to the effects of blasting operations and gave it as his opinion that there would be no effect on Cadwallader’s property if the blasting was done properly. The geologist, offered as an expert by appellant, testified generally with respect to blasting effects and the effect of fractures in the underlying rock formations on wells. He stated it was important to conduct tests for any fractures because one of the coal seams was “dirty coal” and that it was possible for acid to escape into nearby wells. It seems no fracture study had been undertaken.

Ultimately, the court rendered an opinion reversing the Zoning Board and granting appellee (appellant below) the conditional use it sought. The court found that there was no probative evidence in the record which would show that the proposed use would be detrimental to the neighborhood, and that the decision of the Zoning Board denying appellee’s application for a conditional use was, therefore, arbitrary and capricious.

Upon appeal, a single issue is presented:

“Whether there was probative evidence submitted before the Board of Zoning Appeals for Allegany County so that the question of harm or disturbance to the neighborhood was fairly debatable.”

. Before considering the merits of this appeal, we are compelled, by reason of appellee’s motion to dismiss, to consider whether appellant had standing to participate in the proceedings below, and has standing to maintain this appeal. Appellee argued below, and contends here, that appellant is not “aggrieved” by the decision of the Zoning Board and, therefore, is not a proper party to these proceedings.

Md Code (1957), Art. 66B, § 4.08 (a) provides:

“(a) Who may appeal; procedure. — Any person or persons, jointly or severally, aggrieved by any decision of the board of appeals, or by a reclassification by the local legislative body, or any taxpayer, or any officer, department, board, bureau of the jurisdiction, may appeal the same to the circuit court of the county. Such appeal shall be taken according to the Maryland Rules as set forth in Chapter 1100 Subtitle B.”

This section, governing the standing of parties appealing a Zoning Board decision, provides alternative bases for standing. A party has standing if he is aggrieved by the decision of the Zoning Board or if he is a taxpayer. Section 4.08 (a) apparently does not require that a taxpayer be aggrieved in order to maintain an appeal.

Counsel for Mrs. Clise proffered that Mrs. Clise was a property owner, and appellee has not contested this proffer. We can only infer that Mrs. Clise, being a property owner, is also a taxpayer. See generally Md. Code (1957), Art. 81, §§ 8 et seq. We find no error in the court’s ruling that appellant was a proper party below. Being a proper party below, appellant also has standing to maintain this appeal.

Another ground, however, precludes us from directly considering whether the trial court erred in holding that the decision of the Zoning Board was arbitrary and capricious. It appears from the record that the trial judge erred in taking additional testimony below.

As we have set out above, the trial judge, over appellant’s objection, ordered that additional evidence should be presented with respect to the property of Robert Cadwallader. Md. Code (1957), Art. 66B, § 4.08 (b) provides:

“If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence . .. .”

This section appears to grant the trial court virtually unlimited discretion in receiving additional testimony. That discretion, however, has been limited by the Court of Appeals in Aspen Hill Venture v. Montgomery County, 265 Md. 303, 289 A. 2d 303 (1972). In Aspen Hill the Court made a distinction between evidence which “enhancefs] or diminish[es] the evidence supporting or challenging the application” and evidence of “matters of public record which directly relate to the arbitrary, capricious or discriminatory quality of the conduct of the zoning authority which affects the property of the applicant.” Id. at 317, 289 A. 2d at 310. The former type of evidence, such as “evidentiary matters bearing on mistake or change or need”, ought not to be taken in the trial court. See Suburban Properties v. Rockville, 241 Md. 1, 215 A. 2d 200 (1965); Board of Comm'rs v. Meltzer, 239 Md. 144, 210 A. 2d 505 (1965). This limitation is based on the well settled, and often repeated rule that, on appeal, the court is bound by the record made before the governmental body from which the appeal is taken, and may not substitute its judgment for that of the governmental body. Id. at 316-7, 289 A. 2d at 310; Montgomery Co. v. Pleasants, 266 Md. 462, 295 A. 2d 216 (1972).

The court may, however, in its discretion, receive evidence which directly relates to the arbitrary, capricious or discriminatory quality of the conduct of the zoning board. Under the facts presented in Aspen Hill, the Court of Appeals held that evidence showing that the zoning board had granted re-zoning to tracts which bordered the applicant’s tract, for which re-zoning had been denied, had been properly taken in the lower court. This evidence tended to show that the action of the zoning board in denying re-zoning to the applicant, when viewed in context with its granting of re-zoning to a bordering tract on basically the same evidence, was arbitrary and discriminatory.

The evidence received by the trial court in the case sub judice was of the type that would “enhance or diminish the evidence supporting or challenging the application.” The evidence goes to show the detriment or lack of detriment of the conditional use to the surrounding area. As such, the evidence was improperly received by the trial court.

In his written opinion, the trial judge stated:

“In order to deny the application for an exception, the Board needed before it probative evidence that the proposed operation would in fact adversely affect the neighboring properties in the general neighborhood.... After a careful review of all the evidence in this case, the Court cannot find any probative evidence that would justify the decision of the Board. On the contrary, the applicant has produced probative evidence through expert witness that the proposed use would be conducted without real detriment to the neighborhood and would not actually adversely affect the public interest provided the applicant conducts the proposed operation in compliance with the laws and regulations pertaining to such operation.” [Emphasis supplied.]

From the record we are unable to determine whether the trial judge, in rendering this opinion, considered only the evidence presented before the Board, or whether he also considered the evidence received at the supplemental hearing.

Our review of the record persuades us that whether the evidence before the Board was fairly debatable is a close question. In light of the additional evidence, which is now available, we conclude it appropriate to remand the matter, without affirmance or reversal, with instructions to the trial court to remand to the Zoning Board to allow it to receive additional evidence and render its decision.

Case remanded, without affirmance or reversal, with instructions to the trial court to remand the case to the Zoning Board for further proceedings.

Costs to abide the result.

      . See Town of Somerset, et al. v. Montgomery County Board of Appeals, et al., 245 Md. 52, 63, 225 A. 2d 294 (1965).

      . We note that Art. 66B, § 7.03, of the Annotated Code of Maryland provides that this article shall not apply to chartered counties of Maryland. Allegany County, however, is not a chartered county.

      . .Maryland Rule 1071 a; Maryland Rule B12.


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    JOSEPH ISAAC WINKLES v. STATE OF MARYLAND
    [No. 244,
    September Term, 1978.]

      Decided November 3, 1978.

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

      Donald F Chiarello, with whom were Levin, Hochberg & Chiarello on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Charles E. Wehland, State’s Attorney for Howard County, and Joseph Fleischmann, Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant was convicted by a jury in the Circuit Court for Howard County of possession of marijuana in sufficient quantity reasonably to indicate an intent to manufacture and distribute the same, for which he was sentenced to three years’ imprisonment. All but 179 days of this sentence was suspended. He raises three issues in this appeal:

1. Did the lower court err in denying appellant’s motion to quash after both the State and appellant proved the existence of a plea bargain agreement and substantial proof that the State breached its side of that agreement?
2. Did the lower court err in allowing certain testimony to be heard by the jury which consequently infringed upon the power of the jury to form its own conclusions in regard to the question of intent?
3. Did the lower court err in denying Winkles’ motion for judgment of acquittal based upon the sufficiency of the evidence?

(1) Alleged Bargain Between Appellant and Corporal Hajek

On the morning of trial, appellant made an oral motion to quash the proceedings against him based upon an asserted agreement between him and a Howard County police officer, Corporal Paul Hajek. Testimony elicited at the hearing on the motion indeed established the fact that, at or about the time that appellant surrendered himself in lieu of arrest, he and Corporal Hajek, whom he knew from high school, did reach an understanding of some sort. Their respective perceptions of what this understanding was varied, however, in at least one significant respect.

Appellant stated that Hajek told him that the State did not wish to prosecute him, and that “in exchange for help, information, they would go no further with the proceedings.” Appellant said he understood this to mean that “if I turned in fellow men that I would not be prosecuted by the State.” Moreover, according to appellant, Hajek told him that there was no need for him to have an attorney, since if he cooperated, the matter would never get to court. Upon this understanding, appellant directed Hajek’s attention to a nearby apartment where the occupant was allegedly growing, packaging, and selling marijuana. In addition, appellant gave Hajek the name of Michael Onheiser, together with information about this person’s involvement in the trafficking of drugs. Thus, he claimed, he fulfilled his part of the bargain, and the State should be held to the commitment made by the police officer.

Hajek’s story was different. He described the agreement this way:

“There was no promise. There was an agreement that if Mr. Winkles provided me with information that resulted in the arrest of a person as significant or more significant than he was, that I would go to the State’s Attorney and try to have the charges nol prossed. In any event, any cooperation he gave I would testify to in open court.”

With respect to employment of an attorney, Hajek stated that he told appellant that “if he saw fit not to retain an attorney and we reached some suitable agreement as to arresting other offenders, there would be no need to retain an attorney for the purposes of court, because I was sure the State’s Attorney would agree to a nol pros.” According to Hajek, appellant never supplied sufficient information that could lead to the arrest of a significant drug violator, and, for that reason, the understanding never became an actual agreement. Based upon the information supplied with respect to the apartment, Hajek secured and executed a search warrant; but, according to him, the evidence obtained was insufficient to support a conviction and the charges laid against the occupant were nol pressed. As to Michael Onheiser, Hajek claimed that he was unable to corroborate the information supplied by appellant, and that appellant’s reliability as an informant had not been sufficiently established to permit him to proceed without such corroboration.

After hearing all of this, the court denied the motion upon the basis of Bowie v. State, 14 Md. App. 567 (1972). We believe this disposition was correct. Initially, it is evident that if Corporal Hajek’s version of the understanding is believed, there is no factualh&sis for appellant’s motion; for, according to that version, in its most favorable light to appellant, he never satisfied the condition upon which Hajek’s commitment was premised. Even if appellant’s version, much of which was corroborated by his mother, is accepted, the court’s ruling was accurate as a matter of law.

Appellant views this “agreement” with a police officer as being in the nature of a plea bargain, and thus seeks to apply to it the concepts and requirements that have developed with respect to that type of arrangement. See Santobello v. New York, 404 U. S. 257 (1971); Miller v. State, 272 Md. 249 (1974). Under this theory, appellant claims a judicially enforceable agreement with the State, the enforcement of which requires dismissal of the charge. The State, on the other hand, considers the arrangement to be, at best, a promised grant of immunity, which Corporal Hajek had no authority to give. It relies, as did the court below, on what we said in Bowie v. State, supra, citing as well Hunter v. United States, 405 F. 2d 1187 (9th Cir., 1969); Application of Parham, 431 P. 2d 86 (Ariz., 1967); State v. Crow, 367 S.W.2d 601 (Mo., 1963).

We see the alleged agreement — accepting arguendo appellant’s version of it — as neither a plea bargain nor a promised grant of immunity. At the time the “agreement” was made, an arrest warrant had already been issued against appellant charging him with the various drug law violations. What was promised — in his own words — was that these charges would not be prosecuted — that the case would go no farther. This was not a concession for a plea of guilty (see Gray v. State, 38 Md. App. 343 (1977)) nor an immunization against criminal responsibility, either testimonial or transactional; although it is more like the latter than the former.

Bowie involved an alleged offer of immunity by the State’s Attorney which, we said, he had no authority to make. In this instance, the State’s Attorney was clearly authorized to proceed or not to proceed with the prosecution; i.e., to carry out or not to carry out the promise allegedly made to appellant. That, indeed, is what simultaneously distinguishes this case from Bowie and provides a separate, though somewhat related., basis for denying appellant’s motion to quash. That promise could only be made by the State’s Attorney. The discretion as to whether to prosecute is solely in the State’s Attorney, and only that official (or his authorized assistants, in his name) could validly exercise that discretion in the manner necessary to make valid the alleged agreement. Certainly, a police officer has neither the power himself to make such a promise, nor to bind the State’s Attorney to it. To conclude otherwise would not only risk the serious possibility of corruption, abuse, and substantial mischief and uncertainty in the prosecution of criminal cases, but would infringe upon the discretion constitutionally committed to the State’s Attorney. See Brack v. Wells, 184 Md. 86 (1944); Murphy v. Yates, 276 Md. 475 (1975).

For that reason, the “agreement” with Corporal Hajek — whatever it was — would not require dismissal of the charges against appellant.

(2) Hajek’s Expert Opinion

Corporal Hajek, recalled to the stand at the trial proper — after disposition of appellant’s motion to quash — was qualified as an expert in the enforcement of the controlled dangerous substance laws. His experience and training in the identification of narcotic drugs and their properties and in the detection, investigation, and apprehension of suspected drug law violators, were extensive. Hajek led a team of officers in conducting the search of appellant’s home pursuant to a search warrant previously issued; and, as part of his testimony, he described and identified the various items taken from appellant’s home in execution of the warrant.

In appellant’s master bedroom was a safe; and in a drawer in that safe Hajek found $60 in cash and two packets, each containing approximately one ounce of marijuana. The money, Hajek said, was immediately in front of the marijuana in the same drawer. Also found in the house, but not in that drawer, were other narcotic substances and paraphernalia including some 70 or more viable marijuana seeds. Hajek was asked, “what, if any, indication do you draw from the way the money was found in the safe?” Appellant objected to the question with the observation (by counsel), “I don’t know if there’s any inference to be drawn from that.” The State’s theory was that the witness, as an expert in the enforcement of the drug laws, could give an opinion as to what, if any, significance might be attached to his having found the money and the marijuana in the same drawer. After some bantering, counsel noted that “[T]he only inference to be gained from it is the fact that the sixty dollars was worth perhaps as much as the — as the baggies of marijuana, and that’s why it was being kept in the safe.” The court thereupon observed that counsel was then presuming to be the expert, and finally ruled, 'T will allow Corporal Hajek to give what he considers to be his opinion, I’m going to let the jury determine how much weight to put on it.” The way thus paved, Hajek stated that it was his “considered opinion that the money was in some way involved with drug transactions, that’s why it was stored with the drugs.”

The general principles of law with respect to expert testimony have recently been summarized by the Court of Appeals in Radman v. Harold, 279 Md. 167 (1977). We may start (and end) with the proposition that “the admissibility of expert testimony is a matter largely within the discretion of the trial court and its action will seldom constitute a ground for reversal”, notwithstanding that “the trial court’s determination is reviewable on appeal ... and may be reversed if it is founded on an error of law or some serious mistake, or if the trial court clearly abused its discretion.” Within this pragmatic framework, the substantive evidentiary rule is that:

“[A] witness, in order to qualify as an expert, should have such special knowledge of the subject on which he is to testify that he can give the jury assistance in solving a problem for which their equipment of average knowledge is inadequate. It is sufficient if the court is satisfied that the expert has in some way gained such experience in the matter as would entitle his evidence to credit.”

Appellant argues that Corporal Hajek was no more qualified to draw an inference from the facts at hand than anyone else, notwithstanding his expertise as a drug enforcement officer. Whether this is so — whether or not the proximity of $60 in cash to two one-ounce packets of marijuana, both located in the drawer of a safe, has some special significance to such an expert that may not be apparent to a layman — is not, it seems to us, a question that may be answered as a matter of law either way. Perhaps there is some significance to it that is discernible only as the result of special training or experience; perhaps not. It was a matter of discretion. The jury having heard appellant’s objection and the colloquy that followed, could draw its own conclusion as to what, if any, weight to give to Hajek’s comment. We do not believe the court clearly abused its discretion or committed an error of law or serious mistake.

Judgment affirmed; appellant to pay the costs.

      . At oral argument, appellant withdrew this third issue. Because, after the denial of his motion for judgment of acquittal, appellant presented a defense by calling his father as a witness, he is deemed to have withdrawn his motion, and thus not preserved the court’s denial of it for appellate review. Maryland Rule 756 a; Barnes v. State, 31 Md. App. 25 (1976).

      . There was some evidence that the occupant worked for the State Police as a drug analyst. Whether that was true, or had anything to do with what was found in the apartment or the decision not to prosecute is unclear from the record.

      . Compare United States v. Carter, 454 F. 2d 426 (4th Cir., 1972), involving .a promise of “non-prosecution” allegedly made by a United States Attorney; also United States v. Paiva, 294 F. Supp. 742 (D.D.C., 1969).


text:
    BILLY RAY PREVATTE v. STATE OF MARYLAND
    [No. 250,
    September Term, 1978.]

      Decided November 3, 1978.

    The cause was submitted on briefs to Moylan, Davidson and Wilner, JJ.
    Submitted by Thomas D. Murphy, Assigned Public Defender, for appellant.

      Submitted by Francis Bill Burch, Attorney General, Paul T Cuzmanes, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Judith R. Catterton, Assistant State’s Attorney for Montgomery County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Md. Annot. Code art. 27, § 32, provides:

“Every person, his aiders, abettors and counsellors, who shall be convicted of the crime of breaking a storehouse, filling station, garage, trailer, cabin, diner, warehouse or other outhouse or into a boat in the day or night with an intent to commit murder or felony therein, or with the intent to steal, take or carry away the personal goods of another of the value of one hundred dollars ($100.00) or more therefrom, shall be guilty of a felony, and upon conviction sentenced to the penitentiary for not more than ten years.” (Emphasis supplied.)

This is the statute under which appellant was convicted by a jury in the Circuit Court for Montgomery County and sentenced to prison for 10 years. Although appellant concedes nothing, the single issue presentéd by him in this appeal permits us to assume that the evidence presented at his trial was sufficient to establish that he was an “aider, abettor, or counsellor” to the breaking of a storehouse with intent to steal more than $100 of another’s personalty. The problem, he says, is that the indictment against him charged him with breaking the storehouse with intent to commit a felony therein — not with an intent to steal $100 or more of personalty. He postulates from this that because the statute describes three types of requisite intents in the disjunctive, the three constitute quite different and mutually exclusive charges, no one being subsumed in the other; that, as used in the statute, therefore, the phrase “intent to commit ... felony therein” excludes the felony of stealing $100 or more, which is separately mentioned; and that, as the State failed to prove an intent on his part to commit any other felony, there was a variance between the allegata and the probata, and thus insufficient evidence to sustain his conviction.

We do not agree.

The long and confusing legislative history of § 32, and its relationship and overlap with other sections of art. 27 dealing with burglary and larceny have been painstakingly set forth by Judge Moylan of this Court in an article entitled Maryland's Burglary and Larceny Laws, appearing in 4 Univ. of Balto. Law Rev. 28 (1974). It is not necessary to repeat all of that history here.

Suffice it to say that, in what, for purposes of this case, we may consider to be the beginning (Laws of Md., 1809, ch. 138), the General Assembly considered as a felon subject to imprisonment for up to 10 years every person (including aiders, abettors, and counsellors), who shall be convicted of “breaking a store-house, warehouse, or other out-house, in the day or night, with an intent to commit murder or felony therein.” At the time, and, indeed, by virtue in part of the same Act, larceny also was a felony, without regard to the amount taken; and thus, anyone who broke a storehouse with intent to commit larceny, irrespective of the value of the goods intended to be taken, would necessarily have been guilty of breaking with an intent to commit a felony.

The law, thusly stated, remained in effect, without substantial change, for 124 years. In 1933, however, the General Assembly changed petty larceny, which it redefined as involving the theft of less than $25 (as opposed to less than $5) from a felony to a misdemeanor. See Laws of Md., 1933 (Spec. Sess.), ch. 78. This, of course, made necessary a modification in the storehouse breaking law, for all larceny was no longer a felony. Recognizing this, the General Assembly, in the same ch. 78, enacted a new section 319A to art. 27 providing, inter alia, that any person who broke into any shop or storehouse with intent to steal any money, goods, or chattels under the value of $25 was guilty of a misdemeanor. This new section complemented the original 1809 enactment, then codified (1924 Code) as § 36 of art. 27. If the breaking was with an intent to steal $25 or more, prosecution would lie under § 36, but not § 319A; and vice versa if the intent was to steal less than $25.

For reasons which are no longer entirely clear, the General Assembly, four years later, enacted Laws of Md., 1937, ch. 141, which, without either repealing or amending § 319A, broadened § 36 to include an intent to steal goods of any value. As so amended, that section proscribed breaking a storehouse “with an intent to commit murder or felony therein, or with the intent to steal, take or carry away the personal goods of another of any value therefrom.”

The effect of this amendment, first and foremost, was to restore §■ 36 to its pre-1933 ambit of proscription; i.e., to bring within its purview a storehouse breaking with an intent to commit any larceny — “grand” or “petty”. This had a secondary effect, however. With § 36 so broadened, it overlapped with the untouched § 319A. If the State alleged a breaking with an intent to steal less than $25, prosecution would lie under either section, or, subject to Constitutional limitations, under both sections. Thus, where the intent was petty larceny, the two sections were no longer mutually exclusive, but were instead cumulative.

.It was in recognition of this overlap that the General Assembly, six years later, enacted Laws of Md., 1943, ch. 229. This law amended former § 36, then recodified in the 1939 Code as § 34, by excluding from its proscription an intent to commit petty larceny. As so amended, § 34 prohibited breaking a storehouse “with an intent to commit murder or felony therein, or with the intent to steal, take or carry away the personal goods of another of the value of twenty-five dollars ($25.00) or more therefrom.”

This 1943 enactment is highly significant in terms of the issue raised in this appeal, for it was that Act that first made the law as it is today. The only relevant change made since 1943 has been to raise the $25 figure to $100 in recognition of the corresponding change made in the statutory demarkation between “grand” and petty larceny. See Laws of Md., 1960, ch. 40; 1952, ch. 18. It is clear from the history recited above that the specific inclusion of an intent to commit “grand” larceny in then § 34 (now § 32), notwithstanding the use of the disjunctive, was not intended to limit in any way the scope of the word “felony” as used in the statute, or to withdraw from the meaning of that word the felony of “grand” larceny. The problem arose only when petty larceny was made a misdemeanor. Although it would have been much more clear, much less confusing, if the General Assembly had simply consolidated then sections 34 and 389 (current sections 32 and 342) rather than leaving both sections in the law and attempting to make them complementary rather than cumulative, its election to reach essentially the same result in the manner it did cannot be construed as having the effect urged by appellant.' That was most definitely not the legislative intent. In effect, as Judge Moylan observed in his article, supra, at page 32, “[t]his second intent provision [intent to commit ‘grand’ larceny] is completely redundant... being subsumed within the felonious intent of the first provision.” See Rahe, Jr. v. State, 222 Md. 508 (1960); Tyner v. Warden, 232 Md. 666 (1963).

Accordingly, we conclude that there was no variance between the allegata and the probata, and that, if the evidence sufficed to establish that appellant aided or abetted a storehouse breaking with intent to commit “grand” larceny, it sufficed to support his conviction on the indictment.

Judgment affirmed; appellant to pay the costs.

      . As Judge Moylan points out in his article, the 1809 Act was not the original source of this law; but a proper resolution of the issue before us does not require a recitation of any earlier history.

      . Although, in time, petty larceny, then involving the theft of less than $5, became stated in the law as a separate crime (see 1924 Code, art. 27, § 319), it was still a felony. See Danner v. State, 89 Md. 220, 224 (1899); also 26 Op.Atty.Gen. 122 (1941),

      . See, however, Judge Moylan’s comment at 4 Univ. of Balto. Law Rev., p. 50, suggesting that the complement was not a complete one.

      . It has been suggested that this enactment reflected a legislative recognition of the case of State v. Wiley, 173 Md. 119 (1937), in which the Circuit Court for Montgomery County had sustained a demurrer to a count in common law burglary because the indictment failed to allege an intent to steal more than $25, This was not the case, however. The 1937 act was originally introduced in the 1935 session of the General Assembly and passed as Ch. 286. It was vetoed by Governor Nice as being inconsistent with the “O’Dunne Act”, and was then re-enacted, and signed by the same Governor, two years later. The Wiley case did not arise until March, 1937 — a month after the bill had been introduced into.the 1937 session. See House of Delegates Journal, 1987, p. 150. Neither the Journals nor the title to the Act give any due as to the purpose of the bill.

      . The title to the bill states the purpose of the bill as “altering and harmonizing certain provisions of the Criminal Law dealing with the breaking into certain buildings with intent to steal.” Moreover, the enacting clauses of the bill were further prefaced with the statements that “Section 389 of Article 27 [former § 319A] provides a penalty for breaking into certain buildings with intent to steal goods under the value of twenty-five dollars” and that “Section 34 [former § 36] of said Article overlaps to a certain extent said Section 389.”


author:
Thompson, J.,
      Davidson, J.,

text:
    GEORGE FRANKLIN SINE v. STATE OF MARYLAND
    [No. 22,
    September Term, 1978.]

      Decided November 6, 1978.

      The cause was submitted on briefs to Thompson, Davidson and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Victoria A. Salner, Assistant Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Stephen Rosenbaum, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Gerald K. Anders, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Thompson, J.,

delivered the opinion of the Court. Davidson, J., dissents and filed a dissenting opinion at page 636 infra.

George Franklin Sine was convicted in a jury trial, in the Circuit Court for Anne Arundel County, of attempting to obtain money under false pretenses, conspiracy to obtain money under false pretenses, and making a false report to the police. He was sentenced to two concurrent five year terms on the first two charges and to a one year term, running consecutively, on the false report charge.

On appeal he raises the following issues:

1. Whether the court gave an erroneous instruction concerning the burden of proving the voluntariness of a confession.
2. Whether the evidence was sufficient to sustain the conviction of making a false report.
3. Whether the sentence on the charge of making a false report was illegal because it exceeded the statutory maximum.

Although some of the essential facts were disputed by the appellant, the State’s evidence showed that on March 23, 1976, the appellant, together with his brother, Joseph Sine, and two friends, Michael and Kenneth Carey, staged a motor vehicle collision on Constant Avenue in Anne Arundel County. In preparation for the collision, appellant parked his automobile on Constant Avenue and stood nearby while Michael Carey, operating a rented U-Haul truck drove into appellant’s car. The testimony showed that appellant even went so far as to drink “a lot of pickle juice before the accident and [that he] swallowed it to stir [his] ulcers up...,” apparently to enhance his performance of being injured when the medical personnel arrived.

After the collision, an ambulance was called and Officer George H. Hall of the Anne Arundel County Police Force was dispatched to the scene. During his on-the-scene investigation, Officer Hall was told by Michael Carey that the U-Haul truck which he, Carey, had been driving crossed the center line of Constant Avenue and collided with appellant’s car. Carey gave no explanation of why this happened. Carey’s version of how the collision occurred was corroborated in a statement by Joseph Sine to Officer Hall at North Arundel Hospital approximately 30 minutes later. Officer Hall did not speak to the appellant who was then being treated by emergency medical personnel.

Appellant was taken from the scene of the collision to University Hospital in Baltimore where he was examined for injuries. No external injuries were discovered and routine exploratory surgery revealed no internal hemorrhaging. He remained in the hospital overnight and was discharged the following day.

Appellant subsequently made a claim for compensation against U-Haul. Some settlement negotiations took place directly between appellant and U-HauTs insurance adjustor but they failed to reach an agreement and appellant subsequently brought suit against Michael Carey and U-Haul in an attempt to recover damages alleged to have resulted from the collision. Two Anne Arundel County detectives testified that appellant told them that he had staged the accident, as outlined above, and that he intended to collect a sizeable amount of money as the result of a lawsuit based on the collision. These statements were made while appellant was serving a sentence in the penitentiary on an unrelated conviction. A pretrial motion to suppress the statements, on the ground that they were made involuntarily, was denied and their admissibility is not contested on appeal.

I The Erroneous Jury Instruction

The trial court gave the following instruction on the issue of the voluntariness of the above-mentioned statements:

“Likewise, a confession in this state must be freely and voluntarily given. If you find that there was a statement made by the accused, but this statement was not freely and voluntarily given with complete knowledge and waiver of his constitutional right to remain silent, then ... and you find that by a preponderance of the evidence, you’re satisfied that that is it, then of course, that statement cannot be used to convict him.” (ellipsis in transcript).

This was the only instruction given on the point. Although it does not explicitly allocate the burden of proof as between the parties, this statement is clearly susceptible of the interpretation that the appellant bore the burden of proving by a preponderance of the evidence that his incriminating statements were made involuntarily. Accordingly, it constituted error. Gill v. State, 265 Md. 350, 289 A. 2d 575 (1972); Linkins v. State, 202 Md. 212, 96 A. 2d 246 (1953); Smith v. State, 189 Md. 596, 56 A. 2d 818 (1948). The record shows, however, and appellant concedes, that no objection was made to the instruction as required by Md. Rule 757 f.. Therefore, the right to appeal this point has been waived. Rule 757 h. Nevertheless, appellant urges us to exercise our discretion and take cognizance of and correct this error in the instructions under the provision of Rule 757 h. The discretion conferred upon us by that rule will not be exercised as a matter of course, even where the error complained of is clear. In Squire v. State, 280 Md. 132, 135, 368 A. 2d 1019, 1020 (1977), the Court of Appeals pointed out that “absent the existence of compelling circumstances, the failure of a defendant to register an objection to a jury instruction pursuant to Rule 756 f [now Rule 757 f] bars our consideration of the matter.” In Dempsey v. State, 277 Md. 134, 142, 355 A. 2d 455, 459 (1976), the Court pointed out that “an appellate court may in its discretion in an exceptional case take cognizance of plain error even though the matter was not raised in the trial court.” (emphasis added). What constitutes compelling or exceptional circumstances in a particular case necessarily depends on the facts of that case. While particular considerations have been pointed out in individual cases applying the plain error rule, the fact remains that there are no constant and immutable guidelines controlling the exercise of the appellate court’s discretion in this area. See, Williams v. State, 34 Md. App. 206, 207, 366 A. 2d 399, 400 (1976) (Moylan, J. concurring).

Appellant points to three considerations which, he argues, would justify the exercise of our discretion in his favor in this case. First, he points out that the error was prejudicial. The mere fact that the alleged error may have resulted in some prejudice to the appellant does not, in itself, justify the invocation of the plain error rule. Otherwise, any error that could not be considered harmless would be reviewable and Rule 757 f and h would be meaningless.

Second, he states that the error here, even if pointed out to the trial judge, could not have been corrected. We disagree. The instruction was of such a character that if the error had been brought to the court’s attention the proper clarification could have been made without confusing the jury and any prejudicial effect could have been dissipated. In addition, the principle of law in question has been settled in this State for many years. Gill v. State, supra; Linkins v. State, supra; Smith v. State, supra, and we have no doubt that had the error been pointed out, the trial judge would have corrected it.

The third consideration raised by appellant is “the likelihood that defense counsel’s failure to object was neither a trial tactic nor inadvertence, but rather the result of a belief that the instruction as given was in accord with the law.” In his argument to the jury, made prior to the court’s instructions, defense counsel said:

“Judge Childs will instruct you to the effect that in order for a statement to be identified and go to the jury as evidence, it has to be freely and voluntarily made and the burden is upon the State to prove by a preponderance of evidence that that statement was freely and voluntarily made.”

In addition, he submitted a written request for a jury instruction to the same effect. Apparently, therefore, counsel was aware that the burden of proving the voluntariness of a confession was with the State. Although he was apparently under a misapprehension as to the extent of that burden with respect to whether or not the jury may consider it as bearing on guilt after all the evidence is in. Gill v. State, supra; Linkins v. State, supra; Smith v. State, supra. It appears, therefore, that counsel’s failure to object to the erroneous jury instruction was more the result of inadvertence than of an understandable belief that the instruction was correct. It may be true that even if defense counsel had objected he would have argued for a statement of the State’s burden of proof less demanding than that which the law requires. On the other hand, it is also likely that had the trial judge’s error been brought to his attention he would have fully and completely corrected it despite counsel’s apparent imperfect position on the point. The purpose of Rule 757 f is to give the trial judge an opportunity to correct any error in his instructions, Anderson v. State, 12 Md. App. 186, 278 A. 2d 439 (1971), cert. denied, 263 Md. 709 (1971), appeal dismissed, 405 U. S. 1050, 92 S. Ct. 1492 (1972); White v. State, 8 Md. App. 51, 258 A. 2d 50 (1969), cert. denied, 257 Md. 737 (1970); Parker v. State, 4 Md. App. 62, 241 A. 2d 185 (1968). In the instant ease, through defense counsel’s inadvertence, the trial judge was not afforded this opportunity.

In light of the above discussion we find nothing compelling or exceptionaLabout the circumstances of this case and we therefore decline to exercise our discretion under Rule 757 h to take cognizance of this issue.

II The False Report Conviction

The appellant contends that the evidence was insufficient to sustain his conviction for making a false report to the police. Md. Code, Art. 27, § 150 provides as follows:

“Any person who makes a false statement, report or complaint, or who causes a false statement, report or complaint to be made, to any peace or police pfficer of this State, or of any county, city or other political subdivision of this State, knowing the same, or any material part thereof, to be false and with intent to deceive and with intent to cause an investigation or other action to be taken as a result thereof, shall be deemed guilty of a misdemeanor and upon conviction shall be subject to a fine of not more than five hundred dollars ($500.00), or be imprisoned not more than six (6) months, or be both fined and imprisoned, in the discretion of the court.”

The record clearly shows that appellant himself made no statements to the police at the scene of the accident. Nor does it appear that he made any false statements to the police at any time thereafter. He seizes upon this circumstance to make a two-pronged argument that the evidence was insufficient to convict him of the crime charged.

Appellant first argues that the only statements made to the police concerning the accident were those of his brother, Joseph Sine, and Michael Carey, the driver of the U-Haul truck. He points out that both individuals simply stated that the U-Haul crossed the center line while coming down the hill and struck appellant’s vehicle. Because these statements were factually true, he argues, there is no evidence showing that a false statement, report or complaint was made to a police officer. Assuming that the statements made by Joseph Sine and Michael Carey were factually accurate, it is clearly implicit within those statements that the collision was the result of an accident, rather than being staged by the participants. A statement which standing alone may be factually true but which is made under circumstances which would clearly cause it to mislead a listener may be regarded as a false representation. See Fowler v. Benton, 229 Md. 571, 579, 185 A. 2d 344, 349 (1962) (a civil fraud case wherein the court stated, “In its generic sense, a false representation is anything short of a warranty which produces upon the mind a false impression conducive to action.”); McKeever v. Washington Heights Realty Corp., 183 Md. 216, 225, 37 A. 2d 305, 311 (1944) (“When a person intentionally misrepresents a material fact or produces a false impression in order to mislead another, or to entrap or cheat him, or to obtain an undue advantage of him, there is a positive fraud.” (emphasis added). In Polisher v. State, 11 Md. App. 555, 579-80, 276 A. 2d 102, 114 (1971), this Court, in dealing with the crime of false pretenses, said, “The false representation or pretense may be made in any form or manner. It may be made by words, or conduct that has the effect of misrepresenting existing facts to the victim.”

With respect to the instant case, although the statements standing alone may have been factually true, they were only partially true under the circumstances and they were employed to convey a false impression to the investigating officer. Therefore, appellant’s argument that no false statements were made to the officer is without merit.

The second prong of appellant’s argument on this issue is that he could not be convicted as a principal in the making of a false report because he neither made any such reports himself nor participated in, aided, or abetted the making of any such report. The evidence was clearly sufficient to show that appellant participated in a staged accident and that he conspired with the other participants to arrange the supposed accident. The evidence also showed that the statements made by Joseph Sine and Michael Carey were part and parcel of the representation that an actual accident had taken place.

As the crime charged is a misdemeanor all those participating in it “whether as principal or perpetrator, accessory before the fact, or aider or abettor are chargeable as principals.” Polisher, supra at 590, 276 A. 2d at 119.

Ill The Sentence for Conviction Under Art. 27, § 150

Article 27, § 150 provides that anyone found guilty of having committed the proscribed act “shall be subject to a fine of not more than five hundred dollars ($500), or be imprisoned not more than six (6) months, or be both fined and imprisoned in the discretion of the court.” The record shows that appellant was given a sentence of one year on this conviction and, therefore, it is clear that this sentence must be vacated and the case remanded for resentencing. In all other respects the case is affirmed.

Judgments affirmed, except sentence for making a false report vacated and case remanded for resentencing.

/s of costs to be paid by appellant and V3 by Anne Arundel County.

Davidson, J.,

dissenting.

I agree with the majority that the trial court erred in its instructions on the question of the voluntariness of the appellant’s inculpatory statements. Unlike my colleagues, however, I believe that there are compelling or exceptional circumstances in this case which justify the exercise of the discretion accorded by Maryland Rule 757 h. I, therefore^ respectfully dissent.

I do not agree with the majority’s assessment that the trial court’s error “may have resulted in some prejudice to the appellant.” In my view, the error resulted in substantial prejudice.

The significant impact of an accused’s inculpatory statement has long been recognized. Thus, in Jackson v. Denno, the Supreme Court said:

“It is now axiomatic that a defendant in a criminal ease is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession... and even though there is ample evidence aside from the confession to support the conviction."

Here the appellant adduced evidence to show that his inculpatory statements were involuntary. The record shows that these statements constituted the most damaging evidence presented against him. Indeed, it is unclear whether absent those statements, the evidence would have been sufficient to sustain his convictions. Because the trial court improperly shifted the burden of proof to the defendant, or in the alternative, improperly articulated the applicable standard by which to determine the voluntariness of the statements, the jury may well have concluded that the statements were voluntary and considered them in reaching its verdict. But for these improper instructions, the jury might have concluded that the statements were involuntary and might well have excluded them from consideration. Under these circumstances, the trial court’s error was fundamental. It resulted not simply in “some” prejudice to the appellant, but rather in substantial prejudice.

Moreover, I do not agree with the majority that “if the error had been brought to the court’s attention the proper clarification could have been made without confusing the jury and any prejudicial effect could have been dissipated.” In order to correct this error the trial court would have had to explain either that the State had the burden of proving, not by a preponderance of the evidence, but rather beyond a reasonable doubt, that the incriminating statements were voluntary, or, alternatively, that the State and not the defendant had the burden of proving, not by a preponderance of the evidence, but beyond a reasonable doubt that the incriminating statements were voluntary. Additionally, the trial court would have had to define not only what is meant by a “reasonable doubt,” but also by a “preponderance of the evidence.” At the conclusion of all of the requisite corrective instructions, the jury, in my view, would have been hopelessly confused. Thus, the prejudicial effect of the incorrect instructions would not have been dissipated.

Finally, I do not agree with the majority that it would be improper to exercise the discretion accorded by Rule 757 h because “counsel’s failure to object to the erroneous jury instruction was more the result of inadvertence than of an understandable belief that the instruction was correct.” In my view, the appellant’s failure to object to the erroneous instruction was neither a bad guess nor a trial tactic, but resulted rather from a misunderstanding of the applicable law — a misunderstanding shared by the court and by the State despite clear articulation of the law in numerous previous cases. Under similar circumstances, in Parker v. State, this Court determined that discretion should be exercised.

The majority implicitly relies upon Squire v. State in which the Court of Appeals took into account, as one of the factors to be considered in determining whether to exercise discretion, the fact that counsel’s failure to object stemmed from an understandable belief that the instruction was correct. Squire, however, did not hold that it would be an abuse of discretion to take cognizance of a material error where a failure to object resulted from a misapprehension of well-established law. I believe that Parker should be followed here.

The purpose of Rule 757 h is to serve the ends of fundamental fairness and substantial justice. These ends cannot be achieved when a lawyer for any reason misapprehends the law and fails to object to a material erroneous instruction. Whether the reason for counsel’s misapprehension of the law is understandable or inexcusable, the result is the same; an error in instructions will not be brought to the attention of the trial court. Thus, as a practical matter, the trial court’s error will not be corrected and is, in effect, irremediable. An accused’s only recourse then is to pursue a Post Conviction procedure grounded upon a claim of ineffective assistance of counsel, a posture in which it is difficult for the accused to establish his claim.

I believe that under the facts and circumstances of this case, the trial court “committed a plain and irremediable error ... material to the rights of the accused, which deprived him of his right to a fair trial and which must be corrected to serve the ends of fundamental fairness and substantial justice.” Accordingly, I believe that, notwithstanding the absence of any objection, the judgment should be reversed and a new trial granted.

      . We note that even if the instruction had placed the burden on the State to prove voluntariness before the jury by a preponderance of the evidence it would have been erroneous. In Gill v. State, supra, and in many other cases, the Court of Appeals pointed out that when an objection is raised to the admissibility of a confession on voluntariness grounds the State bears a double burden. First, it must prove to the trial judge by a preponderance of the evidence that the statement was voluntary. This will gain it admission into evidence. Second, “[djespite the fact that the accused’s statement is received in evidence, if, from all the testimony in the case, the jury is not satisfied beyond a reasonable doubt that it was the free and voluntary expression of the suspect, then they must disregard it in determining his guilt or innocence.” 265 Md. at 358, 289 A. 2d at 579 (emphasis added).

      . Id. at 376 (emphasis added) (citation omitted).

      . 378 U. S. 368 (1964).

      . I believe here as I did in Dempsey v. State, 24 Md. App. 8 (1974), rev’d 277 Md. 134 (1976), that although the differences between the expressions “by a preponderance of the evidence” and “beyond a reasonable doubt” might well be discernible to a lawyer or a judge whose mastery of such legalistic parlance or jargon is part of their professional expertise, a jury of laymen totally unversed in these linguistic niceties would require clarification of the differences between these terms. Id. at 44 (Davidson, J., dissenting).

      . 4 Md. App. 62 (1968), cert. denied, 402 U. S. 984 (1971).

      . Id. at 67.

      . 280 Md. 132 (1977).

      . Id. at 136.

      . See 24 Md. App. at 53.

      . Id. at 52-53.


author: Mason, J.,

text:
    BETTY DAVIS DAWSON v. STATE OF MARYLAND
    [No. 1328,
    September Term, 1977.]

      Decided December 6, 1978.

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

      Paul T Stein and David E. Aaronson, Assigned Public Defenders, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Paul

      F Kemp, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

Betty Davis Dawson, appellant, was convicted by a jury in the Circuit Court for Montgomery County of manslaughter and use of a hand gun in the commission of a crime of violence. She admits killing the victim, but contends it was in self-defense.

According to the evidence adduced at trial, on the evening of 2 June 1977 appellant and Ray Dawson, her ex-husband with whom she had resumed living, became involved in a heated argument. When Dawson indicated he was going out appellant attempted to stop him by twisting and bending the metal license plates on his car with her bare hands. Apparently angered by this, Dawson knocked appellant to the ground and drove off. After having a couple of drinks, appellant obtained a ride with Diane Aubinoe to the Summit Apartments in Rockville to look for her husband. On arriving at this apartment complex they rode around until Dawson's car was seen. Appellant and Diane got out of the car and approached two people sitting in lawn chairs drinking beer. Upon recognizing Dawson as one of the persons, appellant inquired, “what in the hell are you doing here?” to which he answered, “none of your damn business.” Appellant then smacked him across the face, whereupon he retaliated by hitting her a number of times and, according to Diane, “fought her like a man.” During the fight Margaret Bress, the victim, remained seated in the other lawn chair as if nothing were happening. During the melee, appellant leaped on top of Mrs. Bress and wrapped her arms around Mrs. Bress’s neck. Dawson, however, pulled her off and continued striking her. Diane indicated that she did not join the fight because appellant was doing a pretty good job of defending herself, and Dawson was getting the worst of it. Eventually, Dawson walked away and Mrs. Bress went into her apartment and closed the sliding door to the patio. Appellant then banged on the door several times and yelled, “open the door bitch.” Soon thereafter, Mrs. Bress opened the patio door and apparently stood in the doorway.

According to appellant, when Mrs. Bress opened the door she had a knife in her hand. “I asked her to come out, I would like to talk to her” and she said: “No, I am not coming no damn place.” Mrs. Bress swung the knife in front of her and said, “she would cut my damn guts out.” She became •frightened and reached in her pocket book and pulled her gun out. When Mrs. Bress stepped toward her again swinging the knife, “I touched the trigger just a little too hard, I guess, and it went off.” After the shooting she put the.gun in her pocketbook and walked to the parking lot where she was .stopped by Mr. Papadopoulas, a tenant who lived in the apartment above the victim.

The State’s version of the incident, as testified to by the victim’s husband and children who were in the apartment, was that the victim did not have a knife and that she was shot immediately after opening the door. There is nothing in the record to show that the victim left her apartment prior to the shooting, or that the appellant attempted to enter it.

On appeal appellant contends (1) that the trial court erred in its instructions to the jury on the issue of self-defense; (2) that the trial court erred in denying her motion to suppress the gun seized from a pocketbook during a warrantless search; (3) that the trial court erred in denying her motion to suppress a series of statements taken while she was in custody.

I.

INSTRUCTIONS

The trial judge’s instructions to the jury regarding self-defense were as follows:

“The defendant has raised the. issue of self-defense, that is, legal justification. In order to justify the crime charged on the basis of self-defense, the defendant must have had reasonable grounds to believe, and must have, in fact, believed herself to be in apparent, imminent or immediate danger of bodily harm from her assailant or potential assailant. The circumstances under which the defendant acted must have been such as to produce in the mind of a reasonably prudent person, similarly situated, the reasonable belief that the other person was about to kill her or to do her serious bodily harm.
“You must determine whether the defendant was justified in meeting force with force. If you find such justification, the force used against another must not have been unreasonable or excessive. There must not have been used more force than the exigency reasonably demanded. One is not entitled to use any greater force that he or she has reasonable grounds to believe, and actually did believe, to be necessary under the circumstances to save her life or to avert serious bodily injury.
“If the defendant actually did believe that she was in imminent danger of death or serious bodily harm from which she could save herself only by using deadly force, and had reasonable grounds to so believe, then she had a right to employ deadly force to defend herself. Deadly force is that which is intended to or likely to cause great bodily harm or death.
“Deadly force is unreasonable if non-deadly force is sufficient to avert the threatened harm. However, deadly force may be entirely reasonable under some circumstances.
“Generally, ladies and gentlemen, the law does not require one to retreat. There used to be a concept, and still is in some jurisdictions, that you always had to retreat to the wall before you could use any self-defense or force to oppose someone else who was coming after you. That is no longer the law with respect to a person who is blameless in the first instance, who is not the aggressor or did not provoke the incident. A non-aggressor does not have to retreat,[] CD but if you are the aggressor, even with this limited intent going in, then the law says that you must retreat if there is a reasonably available area of retreat for you and if time and circumstances permit the retreat, and if you don’t retreat and you use fatal force, then you may be guilty of manslaughter.
“The burden is upon the State to prove to you beyond a reasonable doubt that the defendant did not act in self-defense of this case.”

Appellant did not take exception to the Court’s charge, but requested additional instructions — which were denied. The narrow issue then is whether the Court committed reversible error in refusing to give appellant’s requested instructions:

“MR. AARONSON: First, Your Honor, with respect to retreat: We request that the jury be instructed that if you find the defendant was the aggressor and that there is a duty to retreat, the retreat is a subjective concept and the test is: Subjectively in the circumstances of the moment did she have an obviously safe retreat. It’s not the question of whether a reasonable person looking back with hind sight would have retreated, but whether the defendant in the circumstances of the moment had an obviously safe retreat.
“Secondly, Your Honor, we request that page ten of the defendant’s instructions be given regarding if they find that the defendant is the original aggressor, and we request the jury be told the following:
‘You are instructed that where one attacks another in a manner not contemplated to kill or to do serious bodily harm, and the other counter-attacks using excessive and unreasonable force in a manner reasonably contemplated to cause death or great bodily harm, then the original attacker becomes the defender. If there is no obviously safe place of safety available, the defendant may then use whatever force necessary to repeal the counter-attack of the original defender.’ ”

Appellant’s right to the proposed instructions is premised on the theory that even if she were the initial aggressor using non-deadly force she became the defender when the victim counter-attacked with deadly force, i.e., a knife. As support for this theory she relies on Tipton v. State, 1 Md. App. 556 (1967). In that case the father of an armless boy, who was the apparent aggressor in an affray, shot and killed the assailant who was about to strike his son on the head with a rock. In reversing the conviction this Court stated:

“We think reason and logic would support the proposition that where one attacks another in a manner not calculated to kill or to do serious bodily harm, and the defender counterattacks, using excessive and unreasonable force in a manner reasonably calculated to cause death or great bodily harm, then the original attacker becomes the defender. If the original assailant is unable to retreat to a place of safety or there is no place of safety available, then he may use whatever force necessary to repel the counterattack of the original defender.” Id. at 562.

The law regarding the duty of an aggressor to retreat is explicitly set forth in R. M. Perkins, Criminal Law, § 4.1, 1005-06 (2 ed. 1969):

“One suggestion has been that liberty itself is threatened if a law-abiding citizen can be forced from a place where he has a right to be.t[] This extreme privilege is not granted to an ‘aggressor’. One who started the encounter with an unlawful attack, or who culpably engaged in an unlawful exchange of blows, enjoys no such position. He is in no sense blameless. But if he started, or joined in, his fault in doing so is entirely overshadowed if the other wilfully changes it to a deadly encounter. Hence he has not entirely forfeited his privilege of self-defense. If he kills without availing himself of an obviously safe retreat he is guilty of manslaughter. If he retreats as far as he can in reasonable safety, he may use deadly force if this reasonably seems necessary to save himself from death or great bodily harm. And if by reason of the suddenness and fierceness of the change in the nature of the contest there is no reasonable opportunity to retreat, he may resort to deadly force where he is. Where both parties are in the wrong, neither is privileged to use deadly force without retreating.” (emphasis added).

Although the undisputed evidence shows that appellant was the initial aggressor, there is nothing in the record to indicate that she attempted or even contemplated retreating before firing the fatal shot, even though there was obviously a plain avenue of escape. Accordingly, in the absence of some evidence showing an inability to retreat, or that there was no safe place to retreat, the requested instructions were more than appellant was entitled.

Cf. Street v. State, 26 Md. App. 336, 339 (1975) where in a felony murder case we said:

“The only evidence of self-defense in the instant case is the appellant’s self-serving declaration to Roberts, that he shot the man ‘because the man had pulled out some scissors on him.’ Surely, this meager shred of evidence was too slight and doubtful in this factual situation to raise the issue of self-defense for jury consideration. * * * If the appellant had requested an instruction on self-defense, which he did not, it would have been properly refused because it was not ‘supported by the evidence.’ If the instruction were granted, it would have been more than the appellant was entitled to.” (Citations omitted).

In summary, we conclude that the instructions, as given, more than fairly and adequately covered the essential points of law supported by the evidence in the case, and that the trial judge did not err in refusing to grant appellant’s proposed instructions.

II.

THE SEARCH

In the present case Officer Graham received a call over his police radio that there was a shooting in an apartment complex known as Summit Hills. The testimony of the officer on direct examination regarding his encounter with appellant and the search of her pocketbook is as follows:

“Q. After your initial observation then what did you do next?
“A. I observed that they were in a struggle; it appeared that the white male was trying to get the pocketbook away from the white female.
“I didn’t know if this was related to the shooting or not, but I figured it might be, and since the first call for the shooting was a family fight, secondly it came up as a shooting, so I stopped the two individuals as they crossed the parking lot, and had them sort of backed up against a car.
“At that time I said: ‘What’s going on here?’ The white female indicated to me that she was the one that did it, she is the one that did it, it’s in the purse.
“Q. Did you have any further inquiries at that point, or what did you do?
“A. I said: ‘What happened?’ and he said: ‘She shot a girl.’ At that time, the white female said: T didn’t hurt anybody.’
“Q. The defendant you mean?
“A. That’s correct.
“At that time the white male again: ‘It’s in the purse.’ I said to the white female: ‘Give me your purse,’ and at the same time I took the purse from her.
“At that time she said to me: ‘Yes, I shot her and the gun is in the purse.’
“Q. After you took the purse, what did you do with it?
“A. I opened it.
“Q. And what did you observe within that purse?
“A. I observed laying in the middle of the purse a handgun, a small caliber handgun.” (T. 254-255).

In her motion to suppress, appellant relied on the case of United States v. Chadwick, 433 U. S. 1 (1977), as the basis for excluding the gun. The State, on the other hand, relied on the theory of “stop and frisk” as justification for admitting the gun. In denying the motion the trial court stated:

“THE COURT: Now, during the course of proceedings yesterday the defendant presented to the Court evidence to support a motion to suppress a confession which was allegedly given to the Montgomery County Police on the night of this homicide, and also to suppress seizure of certain evidence, to wit: a handgun which was found in the defendant’s purse.
“The defendant relies upon Chadwick v. The United States [sic] urging the privacy concept, as held there applying to a foot locker, should apply to the defendant’s purse. It is a close question, and it is a novel question, and one which undoubtedly would be the subject of a very interesting appeal, but I will rely upon Terry v. Ohio, and Adams v. Williams and conclude that the officer, given the totality of the circumstances, acted properly.
“This crime occurred on the second of June, and the opinion of Justice Burger was not issued until the 21st of June, so probably the officer hadn’t had a chance to read Law Week and find that he was not acting properly, if, in fact, he was not acting properly.” []

Under the facts of this case we think the officer’s search of appellant’s pocketbook was constitutionally permissible whether done pursuant to a “stop and frisk” as urged by the State, or as an incident to a lawful arrest as urged by appellant.

In Chadwick federal narcotics agents received reliable information that the defendants were transporting marihuana by train in a footlocker from San Diego to Boston. When the train arrived in Boston, Federal agents were on hand, accompanied by a police dog trained to detect marihuana. As the defendants claimed their luggage, including a 200 pound footlocker, the dog signaled the presence of a controlled dangerous substance inside the footlocker. After the defendants placed the footlocker in the trunk of their car, they were arrested and taken, to the Federal Building. One and a half hours after the arrests the agents, without a warrant or consent of the defendants, opened the footlocker and found a large quantity of marihuana. The Court held that the search was illegal and excluded the admissibility of the marihuana into evidence. In reaching its decision the Court, in clarifying when a warrant is required to search property seized at the time of an arrest, stated:

“When a custodial arrest is made, there is always some danger that the person arrested may seek to use a weapon, or that evidence may be concealed or destroyed. To safeguard himself and others, and to prevent the loss of evidence, it has been held reasonable for the arresting officer to conduct a prompt, warrantless ‘search of the arrestee’s person and the area “within his immediate control” — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.’ Chimel v. California, 395 U. S., at 763. See also Terry v. Ohio, 392 U. S. 1 (1968).
“However, warrantless searches of luggage or other property seized at the time of an arrest cannot be justified as incident to that arrest either if the ‘search is remote in time or place from the arrest,’ Preston v. United States, 376 U. S. at 367, or no exigency exists. Once law enforcement officers have reduced luggage or other personal property not immediately associated with the person of the arrestee to their exclusive control, and there is no longer any danger that the arrestee might gain access to the property to seize a weapon or destroy evidence, a search of that property is no longer an incident of the arrest.” United States v. Chadwick, 433 U. S. at 14-15.

Appellant argues, in essence, that the search of her pocketbook, after it was seized and in control of Officer Graham, went beyond the limits now permissible under Chadwick as a search incident to a lawful arrest.

Prior to Chadwick we would have had no difficulty in holding that the police could conduct a warrantless search of an arrestee’s pocketbook as an incident to a lawful arrest under the principle enunciated in Chimel v. California, 395 U. S. 752 (1969). In that case the Court held that as an incident to a lawful arrest officers may search both the arrestee and the area within the arrestee’s control for weapons or destructible evidence. Numerous pre-Chadwick cases in federal and state jurisdictions have upheld searches of pocketbooks taken from arrestees or areas within their immediate control.

The following cases have upheld searches of pocketbooks: United States v. Jeffers, 520 F. 2d 1256 (7th Cir., 1975); United States v. Johnson, 495 F. 2d 378 (4th Cir., 1974); United States v. Berryhill, 445 F. 2d 1189 (9th Cir., 1971); Godwin v. State, 133 Ga. App. 397, 211 S.E.2d 7 (1974); State v. Williams, 522 P. 2d 1213 (Or. Ct. App. 1974); State v. Perry, 499 S.W.2d 473 (Mo. Sup. Ct. 1973).

The continued precedential value of these cases, however, must be re-examined in light of Chadwick. In Shingleton v. State, 39 Md. App. 527 (1978) the state police stopped a van in which they had probable cause to believe the occupants were in possession of narcotics. After the occupants were removed from the van and arrested, the police conducted a warrantless search of a briefcase found in the van. This court in holding that the search was illegal under Chadwick said: “The law is now clear that the police, having gained 'exclusive control’ of the briefcase and eliminated by space and time any possibility of the arrestee’s ‘gaining] access to the property to seize a weapon or destroy evidence,’ may not then conduct a warrantless search of that property under a guise of a search incident to the arrest.” Id. at 543. In United States v. Berry, 560 F. 2d 861 (7th Cir., 1977) federal agents took an attache case from a suspected bank robber at the time of his arrest. Approximately 8 minutes after the suspect was arrested, searched and handcuffed, the agent in charge searched the attache case. The Court, in an instructive and persuasive analysis of Chadwick stated:

“The Court appears to be distinguishing — for purposes of whether a warrant is required to search property in police custody that was seized from a suspect at the time of the arrest — between searches of an arrestee’s clothing, as in Edwards, or items that were in his pockets, as in Robinson, from searches of other possessions, such as luggage, that were within his immediate control. Warrantless searches of the former items after they come in police custody can be characterized as searches of the arrestee’s person because they do not involve any greater reduction in the arrestee’s expectations of privacy than that caused by the arrest itself. Warrantless searches of the latter items, however, affect privacy interests other than those reduced by the arrest itself and thus can be conducted only so long as the danger exists that the arrestee might gain access to the property to seize a weapon or destroy evidence.
“[W]e believe that the search of the attache case is better characterized as a search of possessions within the arrestee’s immediate control than as a search of his person. First, as a matter of common usage, a briefcase is not an item carried on an individual’s person in the sense that his clothing or items found in his pocket are. Second, as was true of the footlocker in Chadwick, the privacy interest in the attache case here centered on its contents rather than on the container itself. A search of the interior constituted ‘a far greater intrusion into Fourth Amendment values’ than either Wilson’s arrest or the impoundment of the case. Finally, unlike a purse that might be characterized as immediately associated with the person of the arrestee because it is carried with the person at all times, the attache case here was more like luggage in that Wilson was not carrying it when he left the building, but rather removed it from an auto trunk immediately before his arrest. The warrantless search of the attache case in police custody thus cannot be justified as a search of Wilson’s person.” (emphasis supplied). 560 F. 2d at 864.

Of like import see United States v. Ester, 442 F. Supp. 736 (S.D. N.Y. 1977); and State v. Dudley, 561 S.W.2d 403 (1978), where searches of suitcases were held invalid. See also State v. Dean, 574 P. 2d 572 (1978) where a search of an overnight case was held invalid. Cf. United States v. Moreno, 569 F. 2d 1044, (9th Cir., 1978) where the Court, without mentioning Chadwick, but in reliance on Chimelheld: “The search of Mrs. Moreno’s purse was a valid search incident to her arrest, and a warrant was, therefore, unnecessary.” 569 F. 2d at 1052.

Returning to the instant case, we think appellant’s pocketbook, unlike the footlocker in Chadwick, the suitcases in Ester and Dudley, the overnight case in Dean and the briefcase in Shingleton, was “immediately associated with the person of the arrestee.” Therefore, under the rationale of Berry which we adopt, the search was permissible under Chadwick as a search of appellant’s person. Such a search, we believe, is analytically akin to a search of items found in an arrestee’s clothing or pockets.

Even if we were to construe appellant’s purse as property not “immediately associated with the person,” but property “within appellant’s immediate control,” the search of the purse would still be permissible under Chadwick because of exigent circumstances. Here, the officer, in responding to a report of a shooting, observed a man and a woman apparently struggling over a pocketbook. Upon being informed that appellant had done the shooting and had a gun in her purse, the officer grabbed the purse from under appellant’s arm. Although at this point the officer may have had custody of the purse, he was only one or two feet from appellant and still involved in an uncontrolled and potentially life endangering situation. Appellant was neither handcuffed nor under any physical restraints. She was within the Chimel perimeter of reachability, lungeability or graspability, i.e., the area from within which she could gain access to the pocketbook and the gun; thus, the search was permissible.

The appellant further argues that the search of her pocketbook was not, as held by the trial court and urged by the State, a justifiable “stop and frisk” within the ambit of Terry v. Ohio, 392 U. S. 1 (1968). In Terry the Supreme Court recognized the concept of “stop and frisk” and squarely held that a police officer could, under appropriate circumstances, “stop and frisk” persons thought to be carrying concealed weapons even though there is less than probable cause for an arrest. Assuming arguendo, that Officer Graham lacked probable cause to arrest the appellant at the time he seized and searched her pocketbook for a weapon, the record clearly shows that he had specific and articulable facts upon which to reasonably believe appellant was armed and dangerous.

Appellant next contends that the search exceeded the scope of a justifiable frisk. She argues, “that at no time did Officer Graham perform a pat down or frisk of defendant’s person or attempt to squeeze the outside of the pocketbook to see if it contained a hard object such as a gun____” We do not think Terry is so restrictive in its application that it would preclude the officer in this case from searching appellant’s pocketbook for a gun. In Terry, the Supreme Court did not attempt to place such a limit on the scope of this type of protective search for weapons. It stated:

“We need not develop at length in this case, however, the limitations which the Fourth Amendment places upon a protective seizure and search for weapons. These limitations will have to be developed in the concrete factual circumstances of individual cases. * * * The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in. scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.” 392 U. S. at 29.

In Adams v. Williams, 407 U. S. 143 (1972) an informant told a police officer that an individual seated in a nearby vehicle was carrying a gun in his waistband. Acting on this information, the officer approached the car and asked the occupant to open the door. When the occupant rolled down the window instead, the officer reached into the car and removed a fully loaded revolver from the individual’s waistband. The gun there, as in this case, was not visible to the officer, but it was in precisely the place indicated by the informant. A divided Court upheld this search on the basis of Terry. See United States v. Simmons, 567 F. 2d 314 (7th Cir. 1977) where the Court, in reliance on Terry, upheld the search of a purse for a gun that was within the immediate control of the arrestee’s female companion, who was not placed under arrest. The Court held:

“Where, however, an arresting officer by his own calculation which must survive objective review, determines that a dangerous situation may exist under the circumstances due to the presence of a third party, we do not propose, out of regard for the safety of the officers, to limit the search to a ‘pat down’ when the actual danger is seen reasonably to exist in easy access to items within the companion’s immediate control.” Id., at 319.

See also United States v. Poms, 484 F. 2d 919 (4th Cir. 1973) where the Court upheld the search of a shoulder bag under the guidelines established by Terry for protective searches.

For the reasons herein stated, we conclude that the search of appellant’s pocketbook by Officer Graham was permissible under Chadwick as a search incident to a lawful arrest or, as a valid “stop and frisk” under Terry.

III.

STATEMENTS

Finally, appellant argues that a series of statements she made to the police before being advised of her rights under Miranda v. Arizona, 384 U. S. 436 (1966), were improperly admitted into evidence. We disagree.

As previously indicated, when Officer Graham initially encountered appellant and Mr. Papadopoulas, he inquired, “what happened? and Mr. Papadopoulas replied, “she shot a girl,” ... “it’s in the purse.” After this remark appellant said, “I didn’t hurt anybody.” But upon the seizure of her purse by Officer Graham she remarked, “yes, I shot her and the gun is in the purse.”

The record further indicates that while being transported to the police station appellant admitted shooting the victim, although repeatedly told by Officer Graham not to say anything about the crime. Upon arrival at the police station, appellant was informed that a nitric acid test was going to be administered to her hands to determine if she had recently fired a gun. Appellant told the officer he “didn’t need to do the test because she did shoot a gun and she was an honest person.”

Appellant contends these statements were inadmissible because they were the product of custodial interrogations before she had been advised of her Miranda rights. Even if we assume appellant was in police custody when she said, “I didn’t hurt anybody” and, “yes, I shot her and the gun is in my purse,” these statements were not made in response to police interrogation. They were volunteered statements or blurts which are outside the protective orbit of Miranda. See Cummings v. State, 27 Md. App. 361, 381-385 (1975) and the cases cited therein.

In Tisdale v. State, 30 Md. App. 334 (1976), a police officer observed a taxidriver holding the defendant at bay. The officer inquired, “what was going on” to which the taxidriver replied, “this guy just robbed me.” The defendant then said, “Yes, I robbed him, but you all don’t understand.” This Court held: “... there was no custodial interrogation here, and appellant’s statement, if made and however made, was clearly a spontaneous utterance, admissible as such. Miranda would not have been applicable even if appellant had been in custody.” Regarding the inculpatory statements made by appellant enroute to the police station and prior to the administration of the nitric acid test, we think they were also volunteered statements or blurts, and not, as urged by appellant, statements extracted by subtle questioning intended to elicit incriminating responses.

After the nitric acid test had been completed, appellant was advised for the first time of her Miranda rights. She then gave an inculpatory statement which was reduced to writing and signed. The detective who gave appellant her Miranda rights read them from a standard form used by the Montgomery County Police Department. He described the procedure in the following colloquy:

Q. Starting at the top and working your way to the bottom, would you indicate what the written notations are and what they signify and why you placed them on there.
A. Yes, sir. The first four are check marks indicating that I read a statement to Mrs. Dawson.
Q. For the record, what were the statements that you read that you have checked off?
A. 1. You have a right to remain silent.
2. Any statement you make may be used as evidence agains you.
3. You have a right to the presence of a lawyer prior to and during any questioning and if you cannot afford a lawyer one will be appointed for you if you desire.
4. Anytime during any questioning you may remain silent or ask for a lawyer.
A. At Number 5 is where she started responses to my questions.
Q. What are the questions and what are the answers that come after that?
5. Do you understand what I have said? and she answered, “I sure do.”
6. Do you have any questions about what I have said?” and she responded, “No, sir. I don’t.”
7. Do you want to answer my questions? and she responded “I will.”
8. Do you want a lawyer here and now? and she responded “I’ll take one later” ....

Appellant contends that her answer “I’ll take one later” to Question 8 supra was not a full waiver of her right to counsel. As we view it, appellant’s response, in the context of her answers to the other Miranda questions, was a knowing and intelligent waiver of her right to counsel. Her answer clearly demonstrated a willingness to talk to the police at that particular time. There was no equivocation on her part.

Based upon our independent, reflective, constitutional judgment, we conclude that all of appellant’s statements were voluntarily given and properly admitted into evidence against her. See Walker v. State, 12 Md. App. 684 (1971).

Judgments affirmed.

Costs to be paid by appellant.

      . Because we are not concerned here with the duty of a non-aggressor to retreat, we need not determine whether the court’s instructions on this issue were a correct statement of the Maryland law. See the following cases which discuss the retreat rule: Bruce v. State, 218 Md. 87 (1958); Bennett v. State, 230 Md. 562 (1962); Crawford v. State, 231 Md. 354 (1963); DeVaughn v. State, 232 Md. 447 (1963); Whitehead v. State, 9 Md. App. 7 (1970); Thomas v. State, 9 Md. App. 94 (1970); Gainer v. State, 40 Md. App. 382, 391 A. 2d 856 (1978).

      . See Footnote 1.

      . We do not consider the question of the retroactivity of Chadwick because it was neither raised here nor below. See Shingleton v. State of Maryland, 39 Md. App. 527 (1978), footnote 6, where we said Chadwick may be viewed retroactively- But see United States v. Reda, 563 F. 2d 510 (1977) where the court held that Chadwick is not to be applied retroactively.