author: Liss, J.,

text:
    MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION et al. v. WASHINGTON NATIONAL ARENA
    [No. 1278,
    September Term, 1976.]

      Decided September 14, 1977.

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

      Sanford E. Wool for appellant Maryland-National Capital Park and Planning Commission.

      Edward G. Neal, Associate County Attorney, with whom wer e James C. Chapin, County Attorney for Prince George’s County, Michael 0. Connaughton, Deputy County Attorney and David S. Bliden, Associate County Attorney on the brief, for appellant Prince George’s County, Maryland.

      Submitted on brief by Francis B. Burch, Attorney General, and Ward B. Coe, III, Assistant Attorney General for appellant State of Maryland.

      Peter F. O’Malley, with whom were Glenn T. Harrell, Jr. and O’Malley, Miles, Farrington & McCarthy on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On August 11, 1971, the Maryland-National Capital Park and Planning Commission (hereafter, “Commission”), as lessor, entered into a lease agreement with Potomac Sports Limited, lessee, for a parcel of land of approximately fifty acres, known as a part of the “Kuenne tract,” located near the interchange of Central Avenue (Maryland Route 214) and the Capital Beltway (Interstate Route 495). On August 1, 1972, Potomac Sports Limited assigned its interest in the lease to the Washington National Arena Limited Partnership (hereafter, “WNA”), the assignment having been approved by the Commission. On August 23, 1972, the Commission and WNA executed an agreement (hereafter, “Shared Park Agreement”) for the joint use of an additional ten acres of the Kuenne tract. Title to all the land remained in the name of the Commission.

The stated purpose of the original lease agreement subsequently assigned to WNA was to provide for the construction of a sports arena to furnish major recreational attractions for the citizens of Maryland — in particular those residing in Prince George’s and Montgomery Counties — consistent with the extensive park development program of the Commission. The subsequent Shared Park Agreement gave WNA the right to park automobiles on the ten acre parcel in return for which WNA was required to either pay a sum of money to the Commission for use in a recreational program in the area or, in the alternative, construct certain recreational equipment on the ten acre tract for use when no parking was in progress. WNA met its obligation under this agreement by payment of an agreed sum of money to the Commission.

Pursuant to the lease agreement, WNA erected an arena containing approximately 18,000 seats, which has beeri in operation since December of 1973 as the Capital Centre. The lease contained a tax clause in Paragraph 6(c) which required the lessee to pay all taxes, including ad valorem real estate taxes, as additional rent. Paragraph 6(c) further provided:

“Lessee shall have the unrestricted right in its name to pursue such administrative and judicial procedures as may be necessary to contest and appeal from the amount of any assessment or valuation, and pay under protest any billing of real estate taxes or assessments, all or part of which are to be borne by the lessee under the terms of this Lease. Lessee further agrees that it will not contest or challenge any determination by the State Assessor that the real estate improvements are subject to real estate taxes; however, in the event that said real estate improvements are determined by the State Assessor not to be subject to real estate taxes, the lessee agrees to pay to lessor an additional annual rental over and above that provided in paragraph 5 of this Lease Agreement in the sum of $325,000.00.”

On January 9, 1974, the Supervisor of Assessments for Prince George’s County sent to the Commission a notice of assessment of the value of the 50 acre tract (land only), the subject of the lease, and the 10 acre tract (land only), the subject of the Shared Park Agreement — both tracts being considered together in the notice. The notice of assessment was forwarded to WNA, and on January 28, 1974, a formal letter of protest of the assessment was sent to the Supervisor of Assessments (hereafter, “Supervisor”) in which WNA contended that it did not believe that the land was taxable; that there had been improper notification and service of the notice; and further protested the assessed valuation of the land. On February 22, 1974, another notice of assessment was mailed to the Commission, care of Abe Pollin (general partner in WNA), assessing the improvements constructed by WNA on the 50 acre tract. A formal protest of this notice was sent by WNA to the Supervisor arguing that the notice was improper, that the improvements were not taxable, and that the assessed valuation placed upon the improvements was excessive. On November 21, 1974, final notices of assessment were sent by the Supervisor to the Commission, care of Abe Pollin.

Pursuant to Maryland Code (1957, 1975 Repl. Vol.), Art. 81, § 255, WNA filed a timely appeal to the Property Tax Assessment Appeal Board for Prince George’s County (hereafter, “the Board”) in which WNA raised the issues of the taxability of -the land and improvements and the accuracy of the valuation of the improvements as determined by the State Assessor. That appeal had been before the Board for more than six months when the Commission filed its bill for declaratory judgment and injunction, which is the subject matter of this appeal. The bill in equity was filed nine days prior to a scheduled hearing before the Board on the issues raised by WNA.

In its bill, the Commission contended that Paragraph 6(c) of the lease between the parties amounted to a waiver and/or estoppel by and against WNA which precluded it from prosecuting an appeal of the Supervisor’s determination that the real property improvements known as the Capital Centre were taxable. The Commission did not contend that WNA. was not entitled to contest the Supervisor’s conclusion that the land was taxable. By the time that the Commission’s bill for declaratory relief and injunction came on for hearing in the Circuit Court for Prince George’s County (Judge Samuel Meloy, presiding), the Board had already considered the appeal of WNA from the decision of the Supervisor and had reversed his decision, concluding that neither the land nor the improvements were taxable but rather that under the provisions of Art. 81, they were specifically exempt from taxation. The State of Maryland and Prince George’s County entered an appeal from that decision which is now pending in the Maryland Tax Court.

Judge Meloy, after hearing argument and considering the memoranda filed by all the parties, reached the conclusion that Paragraph 6(c) of the lease was against public policy in that it would prevent access to the courts by the lessee and would thereby preclude judicial review of an arbitrary, capricious or illegal imposition of tax liability by the Supervisor of Assessments. It is from that conclusion that this appeal was taken. Antagonists in the appeal are the . State of Maryland, the Commission, and Prince George’s County.as appellants and WNA as appellee.

All of the parties have filed excellent briefs and presented cogent arguments concerning the legal effect of Paragraph 6(c) of the lease agreement, but none of them have raised the basic question which must be determined before the substantive issues in this matter may be reached, i.e., the question of the jurisdiction of the Circuit Court ,of Prince George’s County.

Rule 1085 provides, “Where jurisdiction cannot be conferred on the court by waiver or consent of the parties, a question as to the jurisdiction of the lower court may be raised and decided in this Court whether or not raised or decided in the lower court.” Therefore, even though the issue of jurisdiction was not raised or decided below — nor briefed and argued before us — that issue may be raised sua sponte by this Court under Rule 1085. Wilson v. State, 21 Md. App. 557, 321 A. 2d 549 (1974); Moore v. State, 15 Md. App. 396, 291 A. 2d 73 (1972). We believe it is necessary for us to raise and determine the issue of jurisdiction in order for this case to be considered in an orderly fashion and to avoid unnecessary and duplicative litigation.

Pursuant to the recommendations of the Tax Revision Commission established under Ch. 687, Acts 1927, the Legislature, by Ch. 226, Acts 1929, made a general revision of the tax laws of Maryland. In so doing, it repealed former Art. 81 and enacted a new Art. 81 of the Maryland Code. The newly adopted article reenacted substantial portions of the existing laws on taxation and enacted additions and clarifications of that law. The principal purpose of the revision, however, was to “codify and clarify.” Meade Heights, Inc. v. State Tax Commission of Maryland, 202 Md. 20, 95 A. 2d 280 (1953).

The Article as adopted provided for a series of elaborate hearing and appellate procedures which are available to anyone aggrieved by a tax assessment levied against real and personal property owned in the State of Maryland. Subsection (a) of Art. 81, §255, Code (1957, 1975 Repl. Vol., 1976 Cum. Supp.) provides:

“With respect to any property assessed locally, any taxpayer, county or city, or the Attorney General or the State Department of Assessments and Taxation may demand a hearing before the supervisor of assessments or their respectively designated representatives, as to the assessment of any property or any unit of tax value, or as to the increase, reduction, or abatement of any such assessment, or as to the classification, for the next year.”

Subsection (b) grants to any taxpayer, county or city, or the Attorney General, or the State Department of Assessments and Taxation on behalf of the State the right to demand a further hearing before the property tax assessment appeal board and a review of the initial determination by the assessing authority and the supervisor of assessments.

Any party aggrieved by the determination of the appeal board is permitted by § 256 (a) to appeal to the Maryland Tax Court because of any assessment or classification, or because of any increase, reduction, abatement, modification, change or alteration or failure or refusal to increase, reduce, abate, modify or change any assessment, or because of any classification or change in classification, or refusal or failure to make a change.

The Maryland Tax Court was created by the Legislature by Ch. 757 of the Acts of 1959. That enactment provided that the Tax Court and State Department of Assessments were to be independent of each other but together would constitute a separate department of the State government. The “quasi-judicial” functions of the then existing State Tax Commission were to be exercised by the Maryland Tax Court and its “administrative” functions were to be vested in the Department of Assessments and Taxation, the separation of the functions being the principal purpose of Ch. 757. Montgomery County Council v. Supervisor of Assessments, 275 Md. 339, 240 A. 2d 302 (1975).

The duties of the Tax Court, as set out in Art. 41, § 318, are as follows:

“On and after July 1, 1959, the Maryland Tax Court shall have jurisdiction to hear appeals from the decision, determination, or order of any final assessing or taxing authority of the State, or of any agency, department or political subdivision thereof, with respect to the valuation, assessment, or classification of property, or the levy of a tax, or with respect to the application for an abatement or reduction of any assessment, or tax, or exemption therefrom.”

Section 229 of Art. 81 adopted the procedure to be followed on appeals to and from the Tax Court and provided in subsection (c) that proceedings before the court shall be de novo and shall be conducted in a manner similar to proceedings in courts of equity in this State.

Subsection (h), which deals with the disposition of the cause, empowers the court:

“[T]o assess anew, classify anew, abate, modify, change or alter any valuation, assessment, classification, tax or final order appealed from, provided that in the absence of any affirmative evidence to the contrary or of any error apparent on the face of the proceedings, the assessment, classification or order appealed from shall be affirmed.”

Subsection (k) provides that in any proceeding before the court, “any party to such proceedings may submit requests for rulings on points of law, similar to prayers in nonjury cases in courts of law, and the Court shall grant, reject or modify the same, so far as may be material to its decision.”

By subsection (m), an aggrieved party is granted an appeal from the final decision of the Maryland Tax Court to the circuit court of the county or Baltimore City in which the property or any part of it is situated.

The circuit court or the Baltimore City Court, by subsection (o), is required to determine the matter upon the record made in the Maryland Tax Court. The circuit court or Baltimore City Court is required to affirm the Tax Court order if it is not erroneous as a matter of law and is supported by substantial evidence appearing in the record. The reviewing court is empowered to affirm, reverse, remand, or modify the order appealed from.

Under subsection (p), any party to the proceedings may appeal from the order of the circuit court or Baltimore City Court to the Court of Special Appeals. A final right to appeal to the Court of Appeals may be granted upon application for a writ of certiorari.

The Commission sought declaratory relief and an injunction in this case contending that the lessee had waived its right to contest the determination of the Supervisor as to the taxability of the improvements erected on the land. We have detailed the elaborate system of hearings and appeals provided by the Legislature for the disposition of controversies involving taxes due on property in Maryland because the right to declaratory relief must be determined in light of the existence of such a statutory scheme.

The original Maryland Uniform Declaratory Judgments Act, Acts of 1939, Ch. 294, Code (1939), Art. 31A, made no reference to the requirement, later adopted by the Legislature, that where a special form of remedy is provided for a specific type of case, that remedy must be followed in lieu of a declaratory proceeding. However, the Court of Appeals of Maryland in Tawes v. Williams, 179 Md. 224, 17 A. 2d 137 (1941), did recognize this principle. In that case, the taxpayer sought a declaration of her State income tax liability for funds received from a trust created by the will of her late husband and paid to her by a fiduciary in Pennsylvania. In reversing the lower court, which had assumed jurisdiction and issued declaratory decrees as to the issues raised by the widow’s bill, the Court held that where a special statutory method was provided for the determination of a particular type of case, jurisdiction under the Declaratory Judgments Act did not exist. In giving its reasons for this conclusion, the Court said at page 228:

“It thus appears that the Legislation has in detail specifically designated the manner in which the determination of the amount of income taxes due shall be made. It therefore appears that the special statutory remedy given by chapter 277 of the Acts of 1939 is exclusive of the general statutory remedy provided by chapter 294. It would seem most unlikely that the Legislature would have so elaborately provided this special statutory remedy and by enacting chapter 294 have intended to enable a taxpayer at his mere whim to impose the duties of administrative officers upon the courts.
“Jurisdiction must exist in the present case, if at all, by virtue of the provisions of chapter 294, but since the Legislature at the same session has given specific jurisdiction first to the Comptroller, next to the State Tax Commission and successive appeals both to circuit courts and this court, this of itself is, in our judgment, sufficient to show that it did not intend by the enactment of chapter 294 to confer jurisdiction in situations of this character. The Legislature has pointed out definitely certain tribunals and conferred upon them authority to decide the matter, and this being true, it must be held that the chancellor erred in concluding that under the allegations of the bill of complaint jurisdiction existed under the Declaratory Judgments Act.”

In a later case, Commissioners of Cambridge v. Eastern Shore Public Service Co., 192 Md. 333, 64 A. 2d 151 (1949), the Commissioners of the City of Cambridge sought from the Court a declaratory judgment that the Eastern Shore Public Service Co., a public utility, was without a franchise to supply electricity in Cambridge. Eastern Shore demurred on the ground that the lower court had no jurisdiction to issue a declaratory decree because the case fell within those cases which were provided “a special form of remedy for a specific type of case”, as recited in § 6 of the Uniform Declaratory Judgments Act. In reversing the lower court’s order sustaining the demurrer, the Court of Appeals noted that section 6 of Article 31A was amended in 1945 (Ch. 724, Acts of 1945) and that by recitals in the amendatory act, the Legislature had made it clear that it was the legislative intent to make the declaratory remedy freely available, regardless of whether another adequate remedy was available at law or in equity. Section 6 as amended then provided:

“When, however, a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed; but the mere fact that an actual or threatened controversy is susceptible of relief through a general common law remedy, or an equitable remedy, or an extraordinary legal remedy, whether such remedy is recognized or regulated by statute or not, shall not debar a party from the privilege of obtaining a declaratory judgment or decree in any case in which the other essentials to such relief are present;.. ..” Id. at 338.

On the face of it, it would appear that Cambridge amounted to a renunciation of the principles stated in Tawes, but a closer examination discloses that the legal situation in the two cases is distinguishable on the facts. For example, in the former, the Court noted that the Public Service Commission was essentially a regulatory body and, as such, had no power to grant a franchise, which is a legislative function. It further noted that the validity or extent of charter powers or franchises were judicial questions. Under those circumstances, it concluded that the existence of a right to seek relief from the Public Service Commission was not such a statutory remedy as to preclude the determination of the legal questions in a proceeding for declaratory relief. It held, at 340-41:

“The enforcement of such a right seems to fall in the category of ‘an equitable remedy, or an extraordinary legal remedy * * * recognized or regulated by statute’, rather than ‘a special form of remedy for a specific type of case’, within the meaning of Section 6 of Art. 31A.”

That the Tawes and Cambridge cases are in fact distinguishable was demonstrated in Schneider v. Pullen, 198 Md. 64, 81 A. 2d 226 (1951), a case involving a challenge by a barber to an act providing for the certification and regulation of private trade schools. There the appellant had filed a bill of complaint for an injunction and declaratory decree in which he requested a determination that the entire act was unconstitutional. In holding that the question of the constitutionality of the Act could be attacked in such a proceeding, the Court said at 68-69:

“We have, however, been careful to point out that where constitutional questions are involved, the litigant has the right to raise them in a court of equity, and such court has the right to consider them. That is true whether the question is raised in an ordinary suit for injunction, or in a bill for a declaratory decree. Kahl v. Com. Gas Co., 191 Md. 249, 258, 60 A. 2d 754; Commissioners of Cambridge v. Eastern Shore Public Service Co., [supra]; Francis v. MacGill, 196 Md. 77, 75 A. 2d 91; Kracke v. Weinberg, 197 Md. 339, 79 A. 2d 387. Appellant has a special interest in bringing this proceeding because he is engaged in the business of operating a trade school, and therefore must, under the terms of the statute, obtain a permit. He does not have to apply for this permit, and then, if it is refused, take the various appeals outlined in the statute, in order to raise the constitutional question of the validity of the act as a whole. That has been raised by a proceeding in equity in many cases. Gordon v. Montgomery County, 164 Md. 210, 164 A. 676; Kracke v. Weinberg, supra. The appellant had the undoubted right to raise the questions he does as to the constitutionality of the statute by means of the bill in equity he filed.” (italics supplied).

The limitations to be observed, however, in the granting of declaratory relief under such circumstances were stated at page 71 where the Court, in effect, restated the principle enunciated in Tawes:

“In the case before us, the appellant also attempts to attack the rules and regulations proposed by the State Superintendent of Schools, which he files as exhibits. We do not think, however, these regulations can be considered in such a proceeding as this. The appellant does not allege that he has applied for a permit, or that he could not obtain a permit under these regulations, or that he could not comply with them. He has his remedy if he cannot obtain a permit under them by taking the appeals already outlined, and in such appeals he can raise the question of the unreasonableness or arbitrary nature of these rules, or any of them. And, when he is given notice of the passage of such regulations, he is entitled to a hearing before the State Superintendent of Schools, and before the State Board of Education. (Subsection (d)). In such hearings, he has ample opportunity to raise any objections he may have to the validity or the necessity of the regulations proposed. With respect to these regulations, as distinguished from the act itself, he is obligated to adopt the statutory procedure outlined, and cannot by-pass it.” (emphasis supplied).

That the Court of Appeals intended Tawes v. Williams, supra, to continue as a viable precedent was evidenced by Reiling v. Comptroller, 201 Md. 384, 94 A. 2d 261 (1953), which case arose out of an assessment of an estimated income tax allegedly due by a taxpayer who had failed to file a State income tax return. The taxpayer maintained that he was domiciled and remained a citizen of Illinois although he resided and owned a dwelling in Chevy Chase, Maryland. He did not avail himself of his right to the several hearings provided under Art. 81 but after the expiration of the time for appeal sought an injunction and a declaration that the assessment was null and void. The court below sustained a demurrer and in affirming the action of the trial court, the Court of Appeals said at 388-89:

“We have pointed out in a number of recent cases that where a constitutional issue is raised, and there is no danger of by-passing administrative action, the question may properly be decided in an equity proceeding, or one for a declaratory decree, before the time has arrived for invoking the statutory remedy, [citations omitted]. It may he noted, however, that none of these were tax cases.
“The case of Tawes v. Williams, supra, is closely in point. It was there held that an assessment of income tax, including within the taxable basis income received from a foreign fiduciary, could only be attacked, even on constitutional grounds, on direct appeal, and not by a proceeding for a declaratory decree. On the last point the authority of the decision is somewhat shaken by subsequent amendments of the Declaratory Judgment Act. See Cambridge v. Eastern Shore Public Service Co. and Schneider v. Pullen, supra. However, these amendments, and our decisions, recognize that where a statute provides a special form of remedy for a specific type of case, that statutory remedy must be followed. The gravamen of the decision in the Williams case was that the legislature intended to make the statutory remedy exclusive. In tax assessment cases there are special reasons why there should be finality upon failure to exercise the statutory right of appeal, and collateral attack should be prohibited. Cf. Wasena Housing Corp. v. Levay, 188 Md. 383, 52 A. 2d 903, and American Bank Stationery Co. v. State, supra. Questions involving jurisdiction to tax income from particular sources have repeatedly been decided on direct appeal. Wood v. Tawes, supra; Gordy v. Dennis, 176 Md. 106, 5 A. 2d 69. This court has never overruled the Williams case on this point, and we see no occasion to do so now, when it has been tacitly accepted by the legislature as a correct interpretation of its intention.” (emphasis supplied).

Declaratory relief was denied in Tanner v. McKeldin, 202 Md. 569, 97 A. 2d 449 (1953), in which case residents of a Federal military installation (Camp Detrick) sought advisory declarations as to the applicability of a number of State laws to residents on property in Maryland owned by the Federal government. On the specific issues of their liability for State income taxes under the Maryland statute, the Court reaffirmed that it is mandatory that the court comply with the statutory direction of Section 6 of the Declaratory Judgments Act — that whenever another statute provides a special form of remedy for the specific case presented, that that statutory remedy shall be followed. See also Poe v. Mayor and City Council, 241 Md. 303, 216 A. 2d 707 (1966); Mayor and City Council v. Seabolt, 210 Md. 199, 123 A. 2d 207 (1956).

In Hartman v. Prince George’s County, 264 Md. 320, 286 A. 2d 88 (1972) the Court held that a bill for declaratory judgment should have been dismissed where landowners had statutory remedies under a zoning ordinance. It concluded that Section 6 of Art. 31A was controlling, and the applicants for declaratory relief were required to follow the special form of remedy provided for the specific type of case.

The Uniform Declaratory Judgments Act was repealed by the Acts of 1973,1st Spec. Sess., Ch. 2, Sec. 1, and re-enacted as Code, Courts & Judicial Proceedings Article (1974) § 3-401, et seq. Subsection 3-409 (b) reflects the intention of the Legislature that declaratory judgment proceedings not be used as a means of by-passing administrative remedies. It states: “If a statute provides a special form of remedy for a specific type of case, that statutory remedy shall be followed in lieu of a proceeding under this subtitle.”

Our analysis of the law convinces us that the trial court in this case should not have accepted jurisdiction over the issues raised by the Commission’s petition for declaratory relief and injunction because the dispute between the parties was already pending before the agency created by the Legislature, for the express purpose of resolving controversies involving tax liabilities. The Legislature had provided a careful and detailed procedure for full and complete hearing and determination of all factual and legal disputes which might arise in this highly specialized area of the law. It had further assured any aggrieved party ample opportunity to have the final decision of the Maryland Tax Court reviewed by the circuit court and by the appellate courts. In such circumstances, having elected its remedy, the appellant should not have been allowed to proceed in the courts under the Declaratory Judgment Act. The circuit court abused its discretion in entertaining the action.

We conclude that the alleged estoppel and waiver contained in Paragraph 6(c) of the lease agreement between the Commission and WNA raises issues which should be determined by the Maryland Tax Court.

Borchard, in his work on Declaratory Judgment, states that the two principal criteria guiding the policy in favor of rendering declaratory judgments are: 1) when the judgment will serve a useful purpose in clarifying and settling the legal relations in issue, and 2) when it will terminate and afford relief from the uncertainty, insecurity and controversy giving rise to the proceeding. Neither of these criteria is found in the instant case. If we sustain the conclusion of the trial court that Paragraph 6(c) is against public policy then the parties will be reinstated to the decision of the Appeals Board that neither the land nor improvements were taxable and the appellants would then be free, to pursue the appeal now pending before the Maryland Tax Court and further avail themselves of the statutory appeal remedies to the circuit court and this Court. Should the Appeals Board decision subsequently be reversed by a reviewing court, the amount of the assessment would remain an open question. On the other hand if we reverse the decision of the trial court and find that Paragraph 6(c) is not against public policy, then we would foreclose the appellee from contesting an assessment which the Board has already found to be erroneous and illegal. Under these circumstances, we believe the trial court should have declined to assume jurisdiction.

The matter is, even now, pending before the Maryland Tax Court for trial de novo, and we believe that that court should not be divested of its jurisdiction over all the issues raised by this controversy. We shall, therefore, vacate the order of the trial court and dismiss the petition for declaratory relief and injunction.

Order vacated.

Petition for declaratory relief and injunction dismissed.

Costs to be divided among all parties.

      . This matter was before this Court on a prior occasion in the case of Maryland-National Capital Park & Planning Commission v. Washington National Arena, 20 Md. App. 712, 354 A. 2d 459 (1976), in which we reversed the chancellor’s decision denying a petition of the State of Maryland to be permitted to intervene. The State in this appeal has participated by way of brief and argument and has essentially concurred in the positions taken by Prince George’s County and the Commission.

      . See Code, Art. 81, § 224; and Code, Art. 41, § 318.

      . The present Uniform Declaratory Judgments Act is codified as section 3-401, et seq. of the Courts and Judicial Proceedings Article.

      . This distinction is preserved in the present statute by subsections i b > and (c'l of § 3-409 of the Courts Article.

      . Borchard, Declaratory Judgments, p. 289 (2d ed. 1941).


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    CALVIN HERD v. STATE OF MARYLAND
    [No. 280,
    September Term, 1977.]

      Decided September 14, 1977.

      The cause was submitted on brief to Gilbert, C. J., and Moylan and Mason, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Victoria A. Salner, Assistant Public Defender, for appellant.
   Gilbert, C. J.,

delivered the opinion of the Court.

In this, hopefully, the last appeal arising out of Patuxent Institution, we have been presented with a joint motion by the appellant, Calvin Herd, and the State, through the Attorney General, to reverse the judgment of the Circuit Court for Charles County. We shall comply with the joint interpellation and reverse the judgment.

Before recounting the facts from which this case arose, the Court acknowledges the spirit of fairness in which the Attorney General’s office, in the person of Bruce C. Spizler, Esq., entered into the motion in the obvious interest of justice. Mr. Spizler is apparently cognizant of the old adage that the State wins when justice prevails.

We turn now to a brief discussion of the facts of this matter.

On March 23, 1976, appellant was convicted of manslaughter in the death of Albert D. Herd, Jr., and sentenced to ten years imprisonment. The appellant was ordered to be referred to Patuxent Institution for evaluation as a possible defective delinquent. Thereafter, a petition was filed against appellant on February 15,1977, alleging that he was in contempt of court for his failure to cooperate with the Patuxent psychiatrists. At a subsequent hearing on the petition, the appellant was adjudged to be in contempt, and he was sentenced, therefor, to ten years imprisonment, the term to run consecutively to the manslaughter sentence.

There are at least two reasons why this judgment must be reversed, and we, thus, see no reason to discuss all the issues raised.

Appellant argues that the “offense, if any, is a civil contempt.” We agree.

The Maryland courts have consistently held that failure to cooperate with Patuxent Institution doctors constitutes only a civil contempt. Williams & Fulwood v. Director, 276 Md. 272, 313, 347 A. 2d 179, 192 (1975); Meyers v. State, 23 Md. App. 275, 277-78, 326 A. 2d 773, 775 (1974). See Savage v. State, 19 Md. App. 1, 15, 308 A. 2d 701, 709 (1973).

In Meyers, we pointed out that:

“The distinction between civil and criminal contempt is ofttimes hazy, but, nevertheless, real. In a civil contempt case the punishment is remedial and can be avoided by compliance with the court order. A civil contempt proceeding is ‘intended to coerce future compliance.’ Consequently, the penalty in a civil contempt case ‘must provide for purging.’ State v. Roll .. . [267 Md. 714, 298 A. 2d 867 (1973)]. A criminal contempt, on the other hand, imposes a penalty for past misconduct.” 23 Md. App. at 278, 326 A. 2d at 775.

Because the punishment in a civil contempt is remedial in nature, contemners are said to “carry the keys of their prison in their own pockets.” In re Nevitt, 117 F. 448, 461 (8th Cir. 1902). To turn the key and exit the prison the contemner has but to comply with the court order. Once he has done that, the contempt is purged. Obviously, the commitment for contempt must provide not only a penalty but the footpath for avoidance of the sanction.

The trial judge, in the case now before us, however, imposed a ten year sentence without pointing the way for the appellant to purge himself of the contempt. In so doing, he erred. The fact that the appellant was informed by the judge that if the appellant decided to “cooperate with the doctors at the [Patuxent] institution, then the [c]ourt will consider suspending the sentence,” does not furnish the requisite opportunity for appellant to purge himself of the contempt. At best, if the court suspended the sentence, the appellant would still stand convicted of contempt. Moreover, the court’s consideration of suspending the sentence does not of necessity mean that the court would suspend it. When the Court of Appeals and this Court speak of a “provision for purging” or “opportunity for purging,” we mean that the contemner must be afforded the chance to rid himself of guilt and thus clear himself of the charge. To suspend the sentence and allow the conviction to stand falls well short of the mark. The sanction used by the trial court in the instant case was not remedial but penal, and in a civil contempt such as this, was impermissible.

The second reason that dictates reversal in the matter now before us stems from the legislative amendments to what, prior to July 1, 1977, was known as Md. Ann. Code art. 31B, entitled, “Defective Delinquents.” That title was changed as of July 1, 1977, to “Patuxent Institution.” 1,977 Md. Laws, ch. 678.

The prior law permitting trial judges by court order to refer a defendant to Patuxent upon request of “the Department of Correction or by the State’s [Attorney or [Assistant State’s [Attorney who prosecuted the person for a crime or offense specified ... [in then Md. Ann. Code art. 31B, § 6 (a)] on any knowledge or suspicion of the presence of defective delinquency in such person,” Md. Ann. Code art. 31B, § 6 (b) (1976), has been repealed. Current Md. Ann. Code art. 31B, § 8 now reads:

“(A) Any person who is serving a sentence of imprisonment following conviction of a crime, has more than three years remaining to serve on his sentence, and has not been evaluated by or confined at the [Patuxent] institution within the preceding three years may be referred by the Commissioner [of Correction] to the [Patuxent] institution for evaluation as to whether he is an eligible person upon recommendation of the sentencing court, upon application to the Commissioner by the State’s Attorney of the county in which the person was last convicted, upon application by the inmate, or upon recommendation of his [the Commissioner’s] staff.”

Notwithstanding the referral to Patuxent by the Commissioner, the inmate may request, in writing, a transfer from Patuxent. The Commissioner, within the time specified after notice of such a request from the Director of Patuxent, shall cause the inmate to be delivered to the correctional facility designated by the Commissioner. Md. Ann. Code art. 31B, § 11 (B) (1). No longer is confinement in Patuxent involuntary, Id., nor indeterminate. Md. Ann. Code art. 31B, § 11(A).

By virtue of § 16 of the new Article 3 IB, any person transferred or committed to Patuxent is to “be evaluated and dealt with in accordance with the provisions of the article.” It is at once apparent that because of the enactment of the current statute the entire contempt proceeding in the instant case became an exercise in futility. As we read the new statute, there is no necessity to apply for contempt proceedings. Whether the inmate is “an eligible person” for confinement is immaterial if he does not wish to be confined in Patuxent. Inasmuch as the appellant is under no legal obligation to “cooperate” with the “doctors,” he cannot be compelled to obey the court directive to do so.

Judgment reversed.

Mandate to issue forthwith.

Costs to be paid by Charles County.


author: Melvin, J.,

text:
    KATHERINE H. BENNER v. CHARLES BARNSHAW BENNER
    [No. 1299,
    September Term, 1976.]

      Decided September 15, 1977.

    The cause was argued before Gilbert, C. J., and Menchine and Melvin, JJ.

      Philip J. Guenzer for appellant.
    O. Robert Lidums for appellee.
   Melvin, J.,

delivered the opinion of the Court.

By decree dated November 9, 1976, Katherine H. Benner, appellant, was divorced a vinculo matrimonii from Charles B. Benner, appellee. The decree further ordered that appellee pay the sum of twenty-five dollars ($25.00) per week as alimony. In his oral opinion, given at the conclusion of the hearing on the merits, the chancellor (Mackey, J.) stated his reasons for awarding alimony as follows:

“The Court will award a divorce to the wife and dismiss the Cross Bill of Complaint.
So far as Mrs. Benner being destitute, she has, among other things, a $30,000 expectancy, by her own admission from her mother’s estate. So you can’t really place her in a category of being destitute over any long term. That is a substantial amount of money, more than many many people ever accumulate in a lifetime.
Also, the marriage only lasted 3 years in which Mrs. Benner was involved from age 36 to 39, apparently. So it isn’t like her whole life had been taken, not like a 25 year marriáge or something of that sort, I mean.
She also predicates her $75 a week request on total inability to work, which is not borne out by the three medical reports in the case here. Each of the doctors in no sense said that she is unable to work; but that she should avoid stressful situations. And I believe there are positions that are available that would fit that requirement in which she could earn a living. I certainly agree that she is in very unusual circumstances at the present, very • touching circumstances, to say the least. And I think for that reason there should be an award of alimony subject to a further order of the Court. But, at this time I am going to order alimony of $25 a week to be paid on a bi-weekly basis, each pay.” (Emphasis added).

Appellant contends that the chancellor erred in considering the “$30,000 expectancy” in awarding alimony, and that the amount awarded was clearly wrong. We agree.

I

Although Md. Ann. Code, Art. 16, § 3 (1976 Cum. Supp.) provides that alimony may be awarded in cases where a divorce is decreed, Article 16, § 5, directs that the court not award alimony “unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs”. Article 16, § 5 has been interpreted by this Court in Quinn v. Quinn, 11 Md. App. 638, 643, 276 A. 2d 425 (1971), cert. denied, 262 Md. 749 (1971) as follows:

“Maryland Code, Article 16, Section 5, directs that the court not award alimony ‘unless it shall appear from the evidence that the wife’s income is insufficient to care for her needs.’ It is thus altogether plain that alimony is not to be awarded as a punitive measure. Bowis v. Bowis, 259 Md. 41. Rather, it is an allowance to the wife in recognition of the husband’s common law liability to support her; it is an allowance of money payable at stated periods by the husband to the wife for her support during their joint lives so long as they live apart. Fairbank v. Fairbank, 169 Md. 212. In other words, the sole object of the alimony award is to provide an allowance to the wife for food, clothing, habitation, and other necessities. Dougherty v. Dougherty, supra; Hood v. Hood, 138 Md. 355. It was held in Waters v. Waters, 191 Md. 436, that in determining an award of alimony and whether, under the statute, the wife’s income ‘is insufficient to care for her needs,’ the court should consider the husband’s wealth and earning capacity, the assets and income of the wife, the station in life of the parties, their age, physical condition, and ability to work, the length of time the parties lived together, the circumstances leading up to the divorce, and the fault which destroyed the home. To the same effect, see Burton v. Burton, 253 Md. 233; Newmeyer v. Newmeyer, 216 Md. 431.”

While it is clear that “the assets and income of the wife” may be considered by the chancellor in awarding alimony, Id., the issue of whether the chancellor may properly consider an expected inheritance of the wife has never been decided by a Maryland appellate court.

Any inquiry into what the chancellor may properly consider in awarding alimony must necessarily begin with an examination of the purposes for such an award. As we said in Quinn v. Quinn, supra, alimony is not awarded as a punitive measure; rather it is an allowance to the wife based on the husband’s common law duty to support her. Id. at 643; 2 W. Nelson, Divorce and Annulment, § 14.02 (2d. ed., 1961 rev.). The sole object of the award is to provide an allowance to the wife for food, clothing, habitation, and other necessities. Quinn, supra, at 643. It is because alimony is designed to meet the immediate needs of the wife that a court fixes the amount of alimony based on the circumstances of the parties existing at the time of the award. See Gosman v. Gosman, 19 Md. App. 66, 309 A. 2d 34 (1973) , modified on other grounds, 271 Md. 514, 318 A. 2d 821 (1974) . See also Pet v. Pet, 238 Md. 492, 209 A. 2d 572 (1965); Kapneck v. Kapneck, 235 Md. 366, 201 A. 2d 798 (1964); Lewis v. Lewis, 219 Md. 313, 149 A. 2d 403 (1959). If these circumstances change, the award may be modified to reflect those changes. Willoughby v. Willoughby, 256 Md. 590, 595, 261 A. 2d 452 (1970); Lopez v. Lopez, 206 Md. 509, 112 A. 2d 466 (1955); Quinn v. Quinn, supra, at 652.

With the purpose of alimony in mind, it seems clear to us that, under the circumstances of this case, the chancellor erred in considering the expected inheritance of the wife in awarding alimony. The only evidence in the record concerning the actual value of appellant’s expected inheritance is her testimony that the $30,000 figure came from an appraisal filed in the Orphans’ Court and that the figure is suspect because the estate has been unable to sell the land (36 or 38 acres) at the appraised figure. There was absolutely no evidence as to:

1) When the estate would be settled;
2) What specie of asset appellant would receive upon settlement (i.e., land or money);
3) What the value or amount of appellant’s share will be after estate taxes, administration fees, expenses, etc. are deducted; or
4) What the income potential is of any asset appellant will receive upon settlement of the estate. Flage v. Flage, 35 Md. App. 619, 625, 371 A. 2d 729 (1977); Foster v. Foster, 33 Md. App. 73, 78, 364 A. 2d 65 (1976); See also Abrams v. Abrams, 246 Md. 588, 595, 229 A. 2d 103 (1967).

Without evidence as to when the estate will be distributed, the chancellor had no basis upon which to gauge the effect of this expected inheritance on the present needs of appellant. It is clear, however, that this mere expectation of inheritance afforded appellant no financial support at the time alimony was awarded. The fact that appellant may not be destitute “over any long term” is virtually irrelevant. Alimony is to be awarded based on circumstances existing at the time of the award. If those circumstances change, the award can be modified.

Additionally, it is the income of the wife that is the relevant factor in determining her need for alimony and not merely the appraised value of her assets. Md. Ann. Code, Art. 16, § 5 (1976 Cum. Supp.); Foster v. Foster, supra, at 78. Without evidence as to the income .potential of any asset(s) appellant might receive upon settlement of the estate, the chancellor again could not gauge the effect of this expected inheritance on appellant’s need for alimony. See Gosman v. Gosman, supra, at 84.

We hold, therefore, that under the circumstances of this case, the chancellor erred in considering appellant’s expected interest in her mother’s estate in awarding alimony. We specifically leave unanswered, however, the question of whether, under different circumstances, an expected inheritance might properly be considered.

II

We also agree with appellant that under the circumstances disclosed in this record, the chancellor was “clearly wrong” in awarding only $25.00 per week alimony. Although the chancellor properly considered other factors in making the award, Quinn v. Quinn, supra, at 643, it is obvious from the size of the award and from his oral opinion that the chancellor placed great weight on appellant’s expected inheritance in determining her need for support. We shall, therefore, remand the case for a determination of alimony consistent with this opinion.

Case remanded for further proceedings consistent with the views expressed in this opinion; costs to be paid by appellee, including $750.00 counsel fee to appellant for prosecuting this appeal.

      . See Brown v. Brown, 248 Md. 139, 148, 235 A. 2d 706 (1967), where the Court of Appeals approved consideration of an actual inheritance of the wife in awarding counsel fees.

      . We were informed at oral argument that the estate had not yet been settled.


author: Menchine, J.,

text:
    WILLIAM HAROLD FORD v. STATE OF MARYLAND
    [No. 1306,
    September Term, 1976.]

      Decided September 15, 1977.

    The cause was submitted on briefs to Gilbert, C. J., and Menchine and Melvin, JJ.
    Submitted by Luther C. West, Assigned Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Leroy Handwerger, Assistant Attorney General, Charles E. Wehland, State’s Attorney for Howard County, and Ronald Spahn, Deputy State’s Attorney for Howard County, for appellee.
   Menchine, J.,

delivered the opinion of the Court.

William Harold Ford was convicted by a jury in the Circuit Court for Howard County of possession of marihuana with intent to distribute. He was sentenced to conditional imprisonment under Article 27, §§ 641A and 645K. He now appeals, asking:

1. Whether the smell of marihuana alone furnishes probable cause for the arrest of the driver of the car in question and the subsequent search of the vehicle?
2. Whether the evidence is sufficient to show actual or constructive possession of the contraband in question by the appellant?

We answer both questions in the affirmative.

Probable Cause

Appellant moved to suppress the use at trial of marihuana and drug paraphernalia found in a Volkswagen. Appellant maintains that there was no probable cause to arrest the operator of the vehicle so that the subsequent search of the vehicle and seizure of the evidence was illegal. After a hearing conducted out of the presence of the jury, the trial court held that there was probable cause for the arrest and that the subsequent search was not unreasonable.

On the night of December 29, 1973, at approximately 2:15 a.m., Officer James L. Fitzgerald of the Howard County Police Department, was operating his marked police cruiser in the area of Ellieott City. He observed a yellow, two-door, 1973 Volkswagen which appeared to be exceeding the posted speed limit. Officer Fitzgerald followed the Volkswagen for a short time. Determining that the vehicle was speeding, Officer Fitzgerald signaled to the car to pull over to the curb. Fitzgerald left. the police vehicle and approached the Volkswagen from behind.

We think that the following brief but graphic excerpt from Fitzgerald’s testimony suffices to set the stage for our discussion of probable cause for the arrest and search:

“As I approached the vehicle, the operator, driver of the vehicle, exited from the vehicle, just as I came abreast of the driver’s side.
Q Who was the driver?
A The driver of the vehicle was later identified as Grant Cole Smith, a white male.
Just as I approached the vehicle, I was abreast of the vehicle, the door opened and a subject exited from the vehicle and shut the door. At that time —
THE COURT: Which — who exited?
A That was the Grant Cole Smith.
THE COURT: I see.
A At that time, as he closed the door, I was standing right next to the vehicle, and I was looking at him. At that time I was about to ask the subject for his operator’s license and the vehicle registration, of the vehicle he was operating. As he closed the door, a smell struck me, which I had known from my past experience to be the odor of marijuana. I —
BY MR. SPAHN:
Q Where was that smell coming from?
A Pardon me, sir?
Q Where was that smell coming from?
MR. KANE: Just to preserve the record, Your Honor, I’ll object.
A I believe at that time the smell was coming from the clothes of the subject, and also from the interior of the vehicle which he was operating, the yellow Volkswagen.”

Officer Fitzgerald placed the driver under arrest. He then advised the driver that he had the right to remain silent; a right to have a lawyer present during any questioning; that as a juvenile he would be allowed to have his parents or guardian present; that if he desired to have a lawyer or his parents or guardian present no questioning would begin until their arrival.

In that setting the driver, at the officer’s request, reached into the car and pulled out a brown paper bag containing marihuana. As he did so, the officer’s flashlight disclosed that “he picked the bag up from the passenger’s side, laying on the hump, which would be where the stick shift is . . . more on the passenger’s side than it would be on the operator’s side.” The officer, after examining the contents of the bag, and identifying it as marihuana, ordered the appellant, who was the passenger, out of the car and placed him under arrest.

Fitzgerald had served in the United States Air Force for four years before becoming a police officer, during which time he received instruction on the use, effects, and detection of marihuana. He also attended the Anne Arundel County Police Academy for twenty weeks and received training as to the detection of marihuana.

A police officer has authority to make a warrantless arrest when the officer has probable cause to believe that a misdemeanor is being committed in his presence. Robinson v. State, 229 Md. 503, 507, 184 A. 2d 814, 816 (1962); Maryland Code Article 27, § 594B (ai.

The basic contention of appellant is that the odor of marihuana, standing alone, did not provide probable cause for the arrest of Smith. Ergo, he argues, the ensuing search disclosing a substantial quantity of marihuana was unlawful.

Appellant relies heavily upon the following language used in Davids v. State, 208 Md. 377, 383, 118 A. 2d 636, 638 (1955):

“Where some evidence of the commission of a misdemeanor reaches an officer through his senses, and it is augmented by other strongly persuasive facts in his possession, all of which is sufficient to convey virtual knowledge to any normal mind that the misdemeanor is then being committed, he may act upon such information as being tantamount to actual knowledge that the misdemeanor is being committed.” (Emphasis added, i

This Court adopted the above emphasized language in Ramsey v. State, 5 Md. App. 563, 568, 248 A. 2d 659, 662 (1968).

Appellant maintains that Davids and Ramsey, both supra, enunciate a rule of law that sensory data derived through the olfactory nerves never are sufficient, standing alone, to give rise to the conclusion that there is probable cause to believe that a crime is being committed. We reject that idea.

Neither Davids nor Ramsey, both supra, involved the acquisition of knowledge through the sense of smell. Thus, neither case dealt definitively with the question whether information derived through the sense of smell alone might, in proper cases, serve to establish probable cause to believe that a crime was being committed. We believe that knowledge so acquired may establish probable cause.

The rule and cases supporting the rule determining the validity of a warrantless arrest were succinctly summarized for this Court by then Chief Judge Murphy (now Chief Judge of the Court of Appeals of Maryland) in Johnson v. State, 8 Md. App. 187, 191, 259 A. 2d 97, 99 (1969), wherein it was stated:

“It is, of course, elementary that a warrantless arrest is valid where the arresting police officer has probable cause to believe that a misdemeanor has been or is being committed in his presence and that the arrestee is the misdemeanant. Winebrenner v. State, 6 Md. App. 440; Robinson v. State, 4 Md. App. 515; Salmon v. State, 2 Md. App. 513. In determining whether a misdemeanor has been committed in the officer’s presence the term ‘presence’ denotes that the commission of the misdemeanor is perceptible to the officer’s senses, whether they be visual, auditory, or olfactory. Davids v. State, 208 Md. 377; Ramsey v. State, 5 Md. App. 563. And in determining whether probable cause exists to justify the arrest, ‘only the probability, and not a prima facie showing of criminal activity is the standard of probable cause.’ Spinelli v. United States, 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637, 645. More specifically, the rule of probable cause is a non-technical conception of a reasonable ground for belief of guilt, requiring less evidence for such belief than would justify a conviction, but more evidence than would arouse a mere suspicion. Edwardsen v. State, 243 Md. 131; Radcliffe v. State, 6 Md. App. 285; Cornish v. State, 6 Md. App. 167; Simms v. State, 4 Md. App. 160.” (Emphasis added.)

In the recent case of United States v. Solis, 536 F. 2d 880, 881 (9th Cir. 1976), it was said:

“Generally evidence acquired by unaided human senses from without a protected area is not considered an illegal invasion of privacy, but is usable under doctrines of plain view- or open view or the equivalent. Odors so detected may furnish evidence of probable cause of ‘most persuasive character,’ Johnson v. United States, 333 U.S. 10, 13, 68 S.Ct. 367, 92 L.Ed. 436 (1948), ‘physical fact[s] indicative of possible crime,’ Taylor v. United States, 286 U.S. 1, 6, 52 S.Ct. 466, 76 L.Ed. 951 (1932).”

In Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436, the Supreme Court said at 13 [369] [440]:

“If the presence of odors is testified to before a magistrate and he finds the affiant qualified to know the odor, and it is one sufficiently distinctive to identify a forbidden substance, this Court has never held such a basis insufficient to justify issuance of a search warrant. Indeed it might very well be found to be evidence of most persuasive character.”

See also: Waugh v. State, 275 Md. 22, at 30 and footnote 5 at 29, 338 A. 2d 268, 272 (1975).

We have no doubt, accordingly, that knowledge gained from the sense of smell alone may be of such character as to give rise to probable cause for a belief that a crime is being committed in the presence of the officer. When such conditions exist a warrantless arrest infringes upon no constitutional right.

We pass then to consideration of the question whether, under the tests set forth in Johnson v. State, supra, there has been a showing that the arresting officer had probable cause to believe that a crime was being committed in his presence. The trial judge concluded that he had.

In Ponds v. State, 25 Md. App. 162, 168, 335 A. 2d 162, 166 (1975), we said:

“Of course, in determining whether the court made its decision within the required constitutional framework, we must do so within the rule that when constitutional rights turn on the resolution of a factual dispute we are duty bound to make an independent examination of the evidence in the record. Brookhart v. Janis, 384 U. S. 1, note 4 at p. 4. Gardner v. State, 10 Md. App. 233, 245, 269 A. 2d 186, 192. In doing so we accord an appropriate and substantial effect to the trial court’s resolution of conflicts in evidence as to the occurrence or nonoccurrence of factual events and happenings.”

We have heretofore set forth the general nature of the training undertaken by Officer Fitzgerald relating to the detection of marihuana through the sense of smell. There was evidence as well respecting field application of that training. The,tidal judge conducted an extensive hearing out of the presence of the jury on appellant’s motion to suppress.

Officer Fitzgerald dearly and without equivocation declared that he detected the odor of marihuana emanating from within the vehicle. He testified that marihuana has a distinct odor that “gives a very sweet, pungent smell.” He buttressed that general statement with testimony that he previously had made arrests for marihuana possession in which he correctly had identified the presence of that substance on the scene by smell. He said, “in at least two of the cases I did smell the odor on the subjects themselves, and I believe one of the cases, it was in the vehicle itself, the odor was emanating from the vehicle, a very strong scent.” Conviction had followed in each instance.

It is true that the defendant, in an endeavor to persuade the trial judge that he should discredit the testimony of the officer, called an expert witness to the stand during the suppression hearing. Her testimony, in large measure, related to tests made with random individuals involving the smelling of marihuana, marjoram, oregano, mint, parsley, oil of patchouli and sandalwood. She testified that those tests had demonstrated numerous erroneous identifications of the several substances. She acknowledged, however, that the odor of marihuana smoke was such as might permit one to “be able to smell it for an hour.” She acknowledged also that under some conditions the odor of drying marihuana is “much stronger than the smell of the smoke.”

Thus, although the witness disputed the ability of Fitzgerald to make a determination of the presence of marihuana by his sense of smell, his credibility and capacity for determination of its presence was in no sense destroyed. At best, her testimony did no more than to produce an evidential conflict. The trial court resolved that conflict by finding that Fitzgerald did become aware that marihuana was likely to be found in the automobile controlled by Smith and that probable cause for his arrest existed. According appropriate and substantial effect to that factual resolution by the trial judge, we are persuaded that the evidence supports the finding that Officer Fitzgerald had probable cause to believe that the vehicle contained marihuana, a contraband substance the possession of which is itself unlawful. Article 27, § 287.

Probable cause for the arrest of Smith having been shown, the search of the vehicle would be valid as a “search incident to an arrest” under Chimel v. California, 395 U. S. 752, 89 S. Ct. 2034, 23 L.Ed.2d 685 (1969), or under the “automobile exception” to the Fourth Amendment as stated in Carroll v. United States, 267 U. S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). See, e.g., Mobley and King v. State, 270 Md. 76, 80, 310 A. 2d 803, 806 (1973); Robinson v. State, 18 Md. App. 678, 685, et seq., 308 A. 2d 734, 738, et seq. (1973).

In the subject case there were exigent circumstances justifying the search and a manifest probability that the vehicle contained contraband.

Sufficiency of the Evidence

In the substantive trial, Officer Fitzgerald, amplifying his testimony describing the position of the bag of marihuana, vis-á-vis the appellant, explained that:

“When I asked Mr. Smith where the marihuana was, he opened the door, reached into the vehicle, and as he reached in I crouched down, and with the aid of my flashlight, the subject reached across the driver’s compartment of the car to the right, right side of the vehicle, where the passenger would sit, and pulled a paper bag, from where would be the floor where the passenger would put his feet, next to the hump where the stick shift is in a Volkswagen, he pulled the bag from that area, came back out with that particular bag.”

In Folk v. State, 11 Md. App. 508, 275 A. 2d 184 (1971), Judge Moylan for this Court collected and discussed numerous Maryland cases involving joint possession and control of contraband. As to those cases rejecting evidential sufficiency he said:

“The common thread running through all of these eases negating joint possession is 1) the lack of proximity between the defendant and the contraband, 2) the fact that the contraband was secreted away in hidden places not shown to bo within his gaze or knowledge or in any way under his control, and 8) the lack of evidence from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use of the contraband.” 11 Md. App. at 514, 275 A. 2d at 187.

As to those cases affirming evidential sufficiency he said:

“The common thread running through all of these cases affirming joint possession is 1) proximity between the defendant and the contraband, 2) the fact that the contraband was within the view or otherwise within the knowledge of the defendant, 3) ownership or some possessory right in the premises or the automobile in which the contraband is found, or 4) the presence of circumstances from which a reasonable inference could be drawn that the defendant was participating with others in the mutual use and enjoyment of the contraband.” 11 Md. App. at 518, 275 A. 2d at 189.

We think that the evidence heretofore outlined in this opinion factually brought the subject case to the point where the jury reasonably could have concluded that the State had proved beyond a reasonable doubt that the appellant was in joint possession and control of marihuana.

It is true that there was testimony by Smith, the driver of the vehicle, that appellant was innocent of any connection with the substance and became aware of its presence only during his ride as a hitchhiker. The credibility of witnesses is for the trier of fact, and the jury was under no obligation to believe the testimony of Smith. Williams & McClelland v. State, 5 Md. App. 450, 247 A. 2d 731 (1968).

We perceive no error.

Judgment affirmed.

Costs to be paid by appellant.

      . It is true that the Supreme Court in Johnson held the search of the dwelling without a warrant to be constitutionally infirm, In doing so; however, the Court pointed out that “No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a moving vehicle.” 333 U. S. at 15, 68 S. Ct. at 369, 92 L. Ed. at 441.


author: Mason, J.,

text:
    JOSEPH EDWARD COLBERT v. STATE OF MARYLAND
    [No. 1308,
    September Term, 1976.J

      Decided September 15, 1977.

    The cause was argued before Powers, Moore and Mason, JJ.

      Morris Lee Kaplan, Assigned Public Defender, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Robert S. Rothenhoefer, State’s Attorney for Frederick County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, Joseph Edward Colbert, was convicted by a jury in the Circuit Court for Frederick County of murder in the first degree, attempted robbery and conspiracy to rob. He was sentenced to a term of life imprisonment for the murder conviction and two concurrent ten year terms for the attempted robbery and conspiracy to rob convictions. On appeal the appellant contends that:

I. The trial court erred in admitting into evidence the two statements he made on July 15,1976.

II. The trial court erred in admitting into evidence his video taped statement.

On the evening of July 8, 1976, at approximately 9:30 P.M., the owner of the National Trail Liquors, located on Route 144 in Frederick, Maryland, was fatally shot. Police discovered inside the front door of the establishment a .22 caliber pistol which had been fired twice, and the victim’s .38 caliber gun which had been fired four times.

Several witnesses testified that they observed a white tractor-trailer in the vicinity of the National Trail Liquors on Route 144 between 8:00 and 10:00 P.M. A tow-truck operator testified that at 11:00 P.M. he responded to a service call at the Baltimore County General Hospital where he pulled a white tractor-trailer, which was driven by the appellant, out of the mud. Moments before the tractor-trailer had become stuck in the mud, two women observed an injured person get out of the rig and enter the emergency room of Baltimore County General Hospital.

On July 13,1976 during the course of the investigation, the police interviewed the appellant at his place of employment, the National Truck Rental on Pulaski Highway in Baltimore. Although not in custody, the appellant was advised of his Miranda rights and signed a waiver of rights form. The statements made by the appellant at this initial interview were basically exculpatory. However, at the appellant’s request, the police made arrangements for him to take a polygraph examination.

On the morning of July 15, 1976, the appellant was transported to the State Police Barracks in Frederick, Maryland. There he was advised of his Miranda rights and signed a waiver of rights form. At this point the appellant was neither under arrest nor in custody; he had not been fingerprinted nor photographed; and, according to the police officers, he was free to leave at any time. The appellant then gave an inculpatory statement, after which he took the polygraph examination and was formally arrested and charged. The appellant was again advised of his Miranda rights and after again signing a waiver of rights form, he gave another statement, which was video taped.

I.

The appellant argues that the two statements made on July 15,1976 should have been suppressed because they were not freely and voluntarily given. He contends he made the first statement because he was promised he would be allowed to see the State’s Attorney; and, that prior to the second statement, he requested to call a lawyer, but was unable to contact one.

The police specifically denied promising the appellant he would be allowed to see the State’s Attorney, and also denied that the appellant requested to call an attorney. They indicated, however, that after the video taped statement, the appellant was advised that the facts of the case would be presented to the State’s Attorney. They also indicated that after the video taped statement the appellant requested and was allowed to make a telephone call.

Based upon our independent and constitutional review of the record, we conclude that the challenged statements were freely and voluntarily given, and the court did not err in admitting them into evidence. Taylor v. State, 238 Md. 424, 209 A. 2d 595 (1965); Walker v. State, 12 Md. App. 684, 280 A. 2d 260 (1971).

II.

The appellant challenges the admissibility of his video taped confession. Although no Maryland appellate cases have dealt specifically with this issue, several other jurisdictions have considered this question, and all of them support the admission of video taped statements. See Annot. entitled “Admissibility of Video Taped Film in Evidence in Criminal Trial”, 60 A.L.R.3d 333 (1974).

In People v. Hayes, 21 Cal. App. 2d 320, 71 P. 2d 321 (1937), the court held that a sound motion picture of a defendant making a confession to a police officer was admissible. Later cases have analogized video tape to “a motion picture synchronized with a sound recording” and have admitted the video tape. People v. Heading, 39 Mich. App. 126, 197 N. W.2d 325, 329 (1972). For example in Paramore v. State, 229 So. 2d 855, 858-859 (Fla. 1969), vacated on other grounds, 408 U. S. 935 (1972), the court held that the defendant’s voluntary confession may be presented to the jury by video tape. The court stated that:

The rule governing admissibility into evidence of photographs applies with equal force to the admission of motion pictures and video tapes. 229 So. 2d at 859.

Similarly in State v. Lusk, 452 S.W.2d 219, 224-225 (Mo. Sup. Ct. 1970), the court held that the presentation to a jury of a properly authenticated video tape of a confession, after the issue of voluntariness has been determined by the trial court, does not infringe upon any constitutional rights. See also State v. Hunt, 53 Wis. 2d 734, 193 N.W.2d 858 (1972); Williams v. State, 542 P. 2d 554 (Okla. Crim. 1975).

The court in Hendricks v. Swenson, 456 F. 2d 503, 506 (8th Cir. 1972) commented on the advantages of video taped confessions, stating:

[T]hat a video tape is protection for the accused. If he is hesitant, uncertain, or faltering, such facts will appear. If he has been worn out by interrogation, physically abused, or in other respects is acting involuntarily, the tape will corroborate him in ways a handwritten statement would not. Instead of denying a defendant his rights, we believe it is a modern technique to protect a defendant’s rights.

The Maryland Court of Appeals in State v. United Ry. & Elec. Co., 162 Md. 404, 418, 159 A. 916 (1932) approved, in the appropriate case, the use of motion pictures to place facts before the jury. Likewise, authenticated tape recordings of conversations were held admissible. Raimondi v. State, 265 Md. 229, 288 A. 2d 882, cert. denied, 409 U. S. 322 (1972); McGuire v. State, 200 Md. 601; 92 A. 2d 582 (1952); Bey v. State, 36 Md. App. 529, 373 A. 2d 1291 (1977).

Thus, adopting the description of video tape as stated in People v. Heading, supra, “a motion picture synchronized with a sound recording,” it is clear there are ample Maryland precedents which would support the admissibility of video taped statements. See also Reed v. State, 35 Md. App. 472, 372 A. 2d 243 (1977), where this Court held that voice identification through spectrographic analysis evidence is admissible under proper safeguards.

Once it has been held, as we have held here, that the challenged statements were freely and voluntarily given, their admissibility is no longer in issue. The only question then is, by what mechanism may the State re-create the defendant’s words and actions so that the jury may hear and see them. Most commonly this is done by a written record made by the interrogating officer at the time, or by a transcript of stenographic notes. Often, no written record is made, and the interrogating officer may testify orally to what the defendant said and did. In the present case, the defendant’s words and actions were recorded by an electronic device which made possible an audio-visual re-creation of what was said and done.

It is the statement itself which has substantive legal significance. The means by which the statement is re-created as evidence before the jury is of secondary importance, provided that its authenticity is reasonably assured. There was no error in permitting the use of the video tape.

The further contention of the appellant, that the video taped statement amounted to a deposition and was inadmissible because it violated provisions of Rule 411 of the Maryland Rules of Procedure, is without merit and requires little discussion. Maryland Rule 411 does not apply to criminal cases. See Maryland Rule 1 a.

Judgments affirmed.

Costs to be paid by appellant.

      . Miranda v, Arizona, 384 U. S. 436 (1966).

      . See Tripp v. State, 36 Md. App. 459, 374 A. 2d 384, 397-98 (1977) where this Court found no abuse of discretion by the trial judge in refusing to permit the appellant to show a video taped interview to the jury which was taken during the course of a mental examination while he was under sodium brevitol, a so-called truth serum.


author: Davidson, J.,

text:
    JAMES GEORGE ROSE v. STATE OF MARYLAND
    [No. 1327,
    September Term, 1976.]

      Decided September 15, 1977.

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

      John A. Austin, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General,

      Sandra A. O’Connor, State’s Attorney for Baltimore County, and Bruce Beilin, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

In the Circuit Court for Baltimore County, Judge John N. Maguire found James George Rose, the appellant, guilty of robbery and assault with intent to rob. He sentenced the appellant to two consecutive five-year terms.

At the trial it was stipulated that the State’s witnesses, Mr. and Mrs. Dillhoff, would have testified that the appellant approached them at about 12:30 a.m., while they were unloading luggage from their car at a Holiday Inn. He told them, “I have a gun and you know what I want.” Mr. Dillhoff gave the appellant $10. The appellant then ran away.

It was further stipulated that another State’s witness, a police officer, would have testified that when the appellant was arrested he had $11 on his person. He also would have testified that in a written statement to the police, the appellant admitted that he approached the Dillhoffs but denied that he made the statement the Dillhoffs attributed to him or took $10 from them. According to the appellant’s statement, he had offered the Dillhoffs $10 to give him a ride to the city line.

The appellant, who elected to testify, said that at about 2 p.m. on the afternoon before the alleged crime, he received a paycheck. He spent the evening drinking at various bars and clubs. At about 11:30 p.m., he was riding home in a car with his wife and some others. After an argument arose, he left the car. At that time he was drunk and had $12 in cash in his pocket. He stood at the entrance to a Holiday Inn trying to “get a ride from whoever was coming out.” He approached a man and a woman who had gotten out of a car and offered to pay them money if they would give him a ride. As he reached into his vest pocket to take out some money, the woman panicked and screamed, “Robbery.” When the man attempted to hit him, he left.

The appellant denied that he had a gun, or that he demanded or took any money from the Dillhoffs. When asked by his attorney to explain the source of the money then in his possession, he responded that he would “not go into that.” On cross-examination, when asked whether it was a coincidence that he had $11 in his possession at the time of his arrest, he gave an unresponsive answer. When questioned by the court concerning prior convictions, he indicated that he had been convicted twice of burglary, once of assault, and several times for various misdemeanors.

I

The appellant contends that the evidence was insufficient to support his convictions. He points out that all of the State’s evidence was entered by stipulation and that his trial testimony contradicted the stipulated testimony. He maintains that there was no basis upon which the trial court could judge the credibility of the State’s witnesses and resolve the conflict in the evidence. He asserts that under these circumstances the trial court’s finding of guilt was arbitrary and capricious.

In Barnes v. State, the accused was charged with shoplifting. Conflicting evidence was offered by way of stipulation as to whether she had concealed the merchandise. The prosecutor stated that an employee of the grocery store would have testified that while she stood in the checkout line, Miss Barnes put a box of sugar in her shoulder bag and zipped the bag closed. Defense counsel proffered that Miss Barnes would have testified that while standing in line with “her hands full of groceries,” she put the box of sugar in her shoulder bag which remained open with the sugar box “sticking out.” This Court commented that:

“There was evidence, which, if found credible, was sufficient in law to support a finding that Barnes concealed the merchandise, and there was evidence, which, if found credible, was sufficient in law to support a finding that Barnes did not conceal the merchandise. As is patent from the verdict, the court resolved this conflict by believing the State’s witness, and accepted that version of what occurred, finding as a fact that Barnes concealed the merchandise. It necessarily follows, that in order to find beyond a reasonable doubt that the offense was committed and that Barnes committed it, the court did not believe Barnes, and rejected her version that she did not conceal the merchandise. Ordinarily, this would be perfectly proper.
“The rub here is that, in the circumstances, there was no proper basis on which the court could resolve the conflict. Certainly, neither the State’s evidence nor the defense’s evidence was inherently incredible. Neither witness from whom the evidence emanated appeared before the court; the court was merely told what the witnesses would say if they testified. There were simply no factors apparent from the record before us which would enable the court to judge the credibility of either witness, or the reliability of the evidence offered through them.
“For the trier of fact to determine the ultimate facts on such conflicting evidence, there must be some basis on which to judge the credibility of the witness whose testimony is the subject of the stipulation, or to ascertain the reliability of that testimony, to the end that the evidence obtained by stipulation may be weighed against other relevant evidence adduced.
“We can conceive of a variety of factors which would afford the fact-finder the opportunity to judge the credibility of a vntness, or the reliability of the evidence offered through him, without observing the witness, but they are best left to a case by case consideration.. .. [Here there was] no opportunity for the fact-finder either to judge the credibility of the witnesses through whom the conflicting evidence Was offered by stipulation, or to ascertain the reliability of that evidence. Without such opportunity, there was no proper way to resolve the evidentiary conflicts in order to determine ultimate facts which would be sufficient in law to sustain a verdict of guilty.” (Emphasis added.)

The court held that the evidence was insufficient and reversed.

Here, unlike Barnes, the trial court had before it factors which enabled it to judge the credibility of the witnesses or the reliability of the evidence offered through them. The appellant appeared before the court and testified. Consequently, the court had an opportunity to observe his demeanor and to consider his prior burglary convictions in relation to credibility. Under these circumstances, the court could properly assess the appellant’s credibility and could properly disbelieve the appellant and reject his version of the facts.

While the trial court had no opportunity to judge the credibility of the State’s witnesses on the basis of observation, there were other factors present which permitted it to determine that the evidence these witnesses offered was reliable. The appellant’s admission that he approached the Dillhoffs, that they were afraid they were being robbed, and that he precipitiously left the scene of the alleged crime, as well as his failure to offer a satisfactory explanation of the fact that at the time of his arrest, he possessed an amount of money approximating that allegedly taken in the robbery, all tend to support the reliability of the Dillhoffs’ stipulated testimony. Under these circumstances, the trial court could properly credit the stipulated testimony of these State’s witnesses and their version of what occurred. This evidence, if believed, was sufficient to sustain the conviction.

II

The appellant also contends that the conviction for assault with intent to rob should have been merged into the conviction for robbery. The State maintains, among other things, that the issue was not properly preserved for appellate review.

This Court will not ordinarily decide any point or question which does not plainly appear to have been tried or decided by the trial court. We have, however, occasionally decided such points or questions. While we have often refused to decide a question of merger which has not been raised or decided in the trial court in cases in which concurrent terms were imposed, we have not declined to consider such questions in cases in which consecutive terms were imposed. In such cases we shall decide the merger question in order to -avoid the manifest injustice which would result if consecutive sentences were imposed for merged offenses.

Under the doctrine of merger, the test for determining the identity of offenses is the required evidence test. In Newton v. State, the Court of Appeals said:

“If each offense requires proof of a fact which the other does not, the,offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited.”

Here the assault with intent to rob and the robbery arose out of the same incident. All of the facts necessary to prove the assault with intent to rob were essential ingredients in proving the robbery. In order to prove the robbery, however, it was necessary not only to prove that the appellant assaulted the Dillhoffs with the intent to rob them but also that he took personal property from them. Thus, the evidence required to secure the robbery conviction was, absent the proof of a taking, the same evidence required to establish the assault with intent to rob. Because here only one offense required proof of a fact that the other did not, the assault with intent to rob and the robbery merge. Accordingly, the conviction for assault with intent to rob must be vacated.

Ill

Finally, the appellant contends that the trial court erred in questioning him about his prior criminal convictions. Because the appellant did not object to the trial court’s questions, the issue is not properly before us for review. Maryland Rules 522,1085.

Judgment as to robbery affirmed.

Judgment as to assault with intent to rob vacated.

Costs to be paid by appellant.

      . 31 Md. App. 25, 354 A. 2d 499 (19761.

      . Id. at 34-36, 354 A. 2d at 505-06.

      . Davis v. Warden, 235 Md. 637, 639, 201 A. 2d 672, 673 (1964); Cousins v. State, 230 Md. 2, 3-5, 185 A. 2d 488, 488-89 (1962); Huston v. State, 35 Md. App. 455, 456-58, 371 A. 2d 449, 451-52 (1977); Boone v. State, 2 Md. App. 80, 103,107, 233 A. 2d 476, 489, 491 (1967).

      . Yopps v. State, 234 Md. 216, 221, 198 A. 2d 264, 266-67, cert. denied, 379 U. S. 922 (1964); Tasco v. State, 223 Md. 503, 509, 165 A. 2d 456, 459 (1960), cert. denied, 365 U. S. 885 (1961); Ball v. State, 7 Md. App. 219, 222, 254 A. 2d 367, 369 (1969), cert. denied, 256 Md. 743 (1970).

      . Jones v. State, 242 Md. 323, 327, 219 A. 2d 77, 79 (1966); Tasco, supra, 223 Md. at 509, 165 A. 2d at 459; Hernandez v. State, 7 Md. App. 355, 367, 255 A. 2d 449, 456 (1969), cert. denied, 256 Md. 745 (1970).

      . Anglin v. State, 244 Md. 652, 656-57, 224 A. 2d 668, 669-70 (1966), cert. denied, 386 U. S. 947 (1967); Debinski v. State, 194 Md. 355, 360, 71 A. 2d 460, 462 (1950); Cross v. State, 36 Md. App. 502, 513-17, 374 A. 2d 620, 627-29 (1977); Hernandez, supra, 7 Md. App. at 367-68, 255 A. 2d at 456-57.

      . Williams and McClelland v. State, 5 Md. App. 450, 459, 247 A. 2d 731, 737 (1968), cert. denied, 252 Md. 731, 733 (1969).

      . Maryland Rule 1085.

      . Brown v. State, 8 Md. App. 462, 467-68, 260 A. 2d 665, 669 (1970).

      . See Colbert v. State, 18 Md. App. 632, 645, 308 A. 2d 726, 734, cert. denied, 269 Md. 756 (1973); Moore v. State, 15 Md. App. 396, 406, 291 A. 2d 73, 78, cert. denied, 266 Md. 740 (1972); Carter v. State, 15 Md. App. 242, 248, 289 A. 2d 837, 840, cert. denied, 266 Md. 734 (1972); Alston v. State, 11 Md. App. 624, 630, 276 A. 2d 225, 228, cert. denied, 262 Md. 745 (1971); McGhee v. State, 9 Md. App. 526, 532, 267 A. 2d 306, 309, cert. denied, 259 Md. 733-34 (1970).

      . 280 Md. 260, 268, 373 A. 2d 262, 266 (1977). See Veney v. State, 227 Md. 608, 611-14, 177 A. 2d 883, 885-86 (1962); Hawkins v. State, 34 Md. App. 82, 92, 366 A. 2d 421, 426 (1976), cert. denied, 279 Md. 683 (1977).

      . Newton, supra, 280 Md. at 273-74, 373 A. 2d at 269-70; Massey v. State, 7 Md. App. 615, 618, 256 A. 2d 614, 615 (1969), cert. denied, 257 Md. 734 (1970); Tender v. State, 2 Md. App. 692, 699-700, 237 A. 2d 65, 70-71, cert. denied, 250 Md. 732, 733 (1968), cert. denied, 393 U. S. 1096 (1969).
      The State’s contention that it is unnecessary to reverse the conviction, and that this Court instead should require the appellant, pursuant to Maryland Rule 764 a, to file a motion in the trial court to correct the illegal sentence, is frivolous.