author: Powers, J.,

text:
    STEVEN THOMAS GAZVODA, etc. et al. v. BARRY CHARLES McCASLIN et al.
    [No. 724,
    September Term, 1976.]

      Decided July 7, 1977.

    The cause was argued before Thompson, Powers and Melvin, JJ.

      David E. Manoogian, with whom were Clark & Cromwell, P.A. on the brief, for appellants.

      William H. Clarke, with whom were W. Barry Wraga and Galiher, Clarke, Martell & Donnelly on the brief, for appellees.
   Powers, J.,

delivered the opinion of the Court.

Our holding in this appeal is governed by Maryland’s so-called “boulevard rule”, as applied to an intersection collision which occurred between two vehicles in Montgomery County on 23 January 1973. We shall reverse the judgment entered by the Circuit Court for Montgomery County for the employer of the favored (but possibly law-violating) driver, and remand the case for further proceedings.

Steven Thomas Gazvoda, 11 years old at the time of the accident, and his mother, Marjorie Gazvoda, as next friend and individually, filed suit for damages in the Circuit Court for Montgomery County against Barry Charles McCaslin and his employer, Flow Laboratories Incorporated.

After interrogatories had been propounded by Flow Laboratories to Steven and to Mrs. Gazvoda, and each had filed answers, and the deposition of each plaintiff as well as Officer Dale G. Tippery had been taken, Flow Laboratories filed a motion for summary judgment, accompanied by a memorandum of points and authorities. The Gazvodas filed their opposition to the motion, with points and authorities.

The motion was submitted to Judge John J. Mitchell on the memoranda and arguments of counsel. The motion was granted. The clerk entered judgment in favor of the defendants for costs. The plaintiffs appealed.

Evidence before the court most favorable to the appellants, the parties against whom the motion was made, showed that at about 5:00 P.M. on 23 January 1973 Steven Gazvoda rode his bicycle west on Wexford Road to its intersection with Beach Drive, made a left turn, and was riding south in the southbound lane of Beach Drive when he was hit by appellee’s truck, which was traveling north in the southbound lane. Steven sustained serious injuries.

Wexford Road, on an east-west alignment, forms a “T” intersection at the east side of Beach Drive, which runs north and south. Wexford Road is divided by a grass median strip as it approaches the east side of Beach Drive. There is a stop sign against westbound traffic on Wexford Road at the entrance to Beach Drive. Beach Drive, the “through highway”, is not divided. It consists of a single pavement, providing one lane for northbound traffic, and one lane for southbound traffic.

As Steven, on Wexford Road, approached Beach Drive, he was faced with the stop sign at Beach Drive. He paused and looked to the left and to the right. To the right it was completely clear. To the left the nearest thing he saw was a green car, coming north, about 30 yards away. He did not come to a complete stop, but proceeded into the intersection. After he crossed the first half of Beach Drive, he made a left turn into the southbound lane. He made his turn easily in front of the green car. As Steven put it:

“* * * I made a left turn which put me into the flow of traffic going towards, I guess, Knowles Avenue — in that direction and as I turned over I went into the other lane and when I looked up — right after I looked up, I saw a white truck almost directly in front of me out of the — like directly in front of me and I thought, ‘Is it going to make a right turn or left turn — what is it doing in my lane?’ And, ‘Why doesn’t it move out of my way?’ And, ‘What should I do to avoid getting hit?’ Then I fainted.”

Officer Tippery, who investigated the accident, gave deposition testimony which could be interpreted as suggesting that the impact took place in the northbound lane. His evidence was far from illuminating. The officer’s conclusion that the impact occurred on the east side of Beach Drive must be drawn from this question and answer:

“Q Did you find that the accident occurred on the side of the street that the truck was driving on on Beach Drive?
“A Right.”

He said that- the skid marks were on the southbound lane, but explained that “The truck had crossed the center line of the road but the skid marks did not appear until after the point of impact.” When asked to locate the point of impact with relation to the intersection, the officer said:

“Actually it would have been a little south of the intersection. Wexford Drive is divided by a median strip and it would have happened more so within the boundaries of the median strip than the roadway itself.”

Appellants argue that there was conflicting evidence on several issues material to their right to recover, and those issues should not have been decided on a motion for summary judgment. They also argue that the boulevard rule does not apply, because the proximate cause of the accident was the truck driver’s violation of the statute by driving on the wrong side of the road; because Steven had cleared the intersection and entered the flow of traffic; and because the truck driver had the last clear chance to avoid the collision.

Undaunted by the genuine disputes of fact generated by the conflicting evidence, and secure in the knowledge that the disputed issues were not material to the result, because the boulevard rule rests upon a statutory and judicial foundation as solid and firm as the Rock of Gibraltar, appellee contends that because Steven was the unfavored driver, he was contributorily negligent as a matter of law, and that the summary judgment was properly granted.

The statute, Code, Art. 66V2, § 11-403 (b) says:

“The driver of a vehicle shall come to a full stop as required by this subtitle at the entrance to a through highway and shall yield the right-of-way to other vehicles approaching on the through highway.”

A bicycle is a vehicle. Code, Art. 66½, §§ 1-104 (a), 1-209, 11-202, Richards v. Goff, 26 Md. App. 344, 338 A. 2d 80 (1975).

Perhaps every case ever decided by the Court of Appeals of Maryland in which it applied, or declined to apply, the boulevard rule was cited and categorized in that Court’s recent decision in Dean v. Redmiles, 280 Md. 137, 374 A. 2d 329 (1977). Judicial expressions concerning the rule were traced from several cases even earlier than Greenfeld v. Hook, 177 Md. 116, 8 A. 2d 888 (1939), generally looked upon as the grandfather case, down through the latest published decisions of the Court of Appeals. Judge Smith, writing for the Court in Dean v. Redmiles, supra, summarized, at 147:

“Certain principles emerge from those cases. The boulevard rule is intended to expedite the flow of traffic on the boulevard. * * * The duty of an unfavored driver to stop and yield the right-of-way is mandatory, positive, and inflexible. * * * Accordingly, an unfavored driver violates this requirement at his own risk. Thus, unless the doctrine of last clear chance is involved, an unfavored driver’s claim as a plaintiff is defeated by his failure to yield the right-of-way, since he is then guilty of contributory negligence as a matter of law.” (Citations omitted).

The decisions of the Court in recent years have been at least as firm in applying the boulevard rule as were the earlier cases, although they have recognized that the rule is exacting, and sometimes harsh. The Court in Creaser v. Owens, 267 Md. 238, 297 A. 2d 235 (1972) said, at 243-44:

“* * * the duty of the unfavored driver to yield the right of way extends to traffic on the whole of the favored road and the driver on the favored highway has a right to assume that he will do so. * * * When the operator of a vehicle enters the favored highway in disregard of these explicit and mandatory rules and collides with another vehicle approaching thereon, the collision must be at least partially attributed to his negligence. * * * It is firmly established in this State that when the ‘boulevard rule’ is applicable the unfavored driver is negligent as a matter of law when sued or contributorily negligent as a matter of law when suing.” (Citations omitted).

In that opinion the Court quoted and reemphasized what it had said much earlier in Shedlock v. Marshall, 186 Md. 218, 46 A. 2d 349 (1946), at 235:

“What the statutes * * * mean is that a driver who enters, from an unfavored highway, an intersection with a favored boulevard or arterial highway where there are no traffic controls must yield the right of way to all the traffic he finds there during the entire time he is there. If he does not, and a collision results, he is at fault and cannot recover against the other driver unless the doctrine of last clear chance enters the case. So far as his rights as a plaintiff are concerned, it makes no difference what the other party does in the first instance. He is negligent because he has not yielded the road. Being negligent himself, his action is barred.”

Summarizing in Creaser v. Owens, supra, the Court said at 245:

“In order to make crystal clear our holding here, we emphasize that if an unfavored driver is involved in an accident with a favored vehicle under circumstances where the boulevard law is applicable then in a suit based on that collision the unfavored driver is deemed to be negligent as a matter of law. And, if the unfavored driver is a plaintiff, his suit is defeated unless the doctrine of last clear chance rescues his claim.”

In Hensel v. Beckward, 273 Md. 426, 330 A. 2d 196 (1974), the Court of Appeals called attention to its decision in Creaser v. Owens, supra, and said, at 427:

“* * * once again we are faced with a case in which the application of the ‘boulevard rule' is sought to be avoided. Like the Rock of Gibraltar we remain firm and will not allow the legislative mandates contained in this right-of-way statute to be judicially either bypassed or otherwise eroded through new waves of attack.”

What this Court had groped for unsuccessfully in our decision in Beckward v. Hensel, supra, n.5, was not an erosion of or an exception to the boulevard rule, but a recognition of the possibility that the significant facts pointing to the proximate cause of a collision, though it happened when an unfavored driver entered a through highway, could, under some circumstances, be such that the boulevard rule simply did not apply.

After Hensel v. Beckward, supra, this Court, bowing to the inexorable application of the boulevard rule (in the absence of a genuine issue of last clear chance) to any collision occurring when an unfavored driver entered a through highway, regardless of the conduct of the favored driver, decided Johnson v. Dortch, 27 Md. App. 605, 342 A. 2d 326, cert. denied, 276 Md. 745 (1975). We affirmed a judgment entered upon a directed verdict for the favored driver in a suit by the unfavored driver. We noted that the evidence was sufficient to permit findings of fact “that the favored driver, Mr. Dortch, was guilty of four separate, serious traffic violations: driving while intoxicated, speeding, operating without headlights (the accident happened at 11:45 P.M., on 24 February 1973), and driving on the wrong side of the street.” At 611-12.

We rejected a contention that last clear chance applied, finding no evidence of sequential, as distinguished from concurring, negligence. Applying the law as the cases stated it to be, we said, at 616:

“Here, the trial court correctly found the Boulevard Rule applicable and the Boulevard Rule violated by appellant.”

Firm as we thought it was, the Rock of Gibraltar has now crumbled into the sea. This disaster, or boon, depending on one’s viewpoint, was caused by the delayed-action explosion of a charge planted by the General Assembly in 1970, and detonated by the holding of the Court of Appeals in Covington v. Gernert, 280 Md. 322, 373 A. 2d 624 (1977).

If some parts of The Rock remain visible above the surface, they offer little safe haven to the once favored traveler.

The heart of the holding in Covington is the meaning it gives to the statutory definition of “right-of-way”. Before 1 January 1971, that definition, Code (1957), Art. 66½, § 2 (a) (45), was, “The privilege of the immediate use of the highway.” By Acts of 1970, ch. 534, § 1., a general revision of the vehicle laws, the definition was changed. The new definition was not applicable to any traffic accident occurring prior to 1 January 1971. At the time of the accident in Covington, as well as in the case presently before this Court, the definition, codified as Art. 66½, § 1-175, was:

“Right-of-way means the right of one vehicle or pedestrian to proceed in a lawful manner on a highway in preference to another vehicle or pedestrian.”

In Covington the accident occurred in a through highway intersection. Covington, the unfavored driver, brought suit in the District Court in Baltimore against Gernert, the favored driver. In the District Court, Covington prevailed. The Baltimore City Court reversed on appeal, holding that the boulevard rule protected Gernert. The undisputed evidence showed that although Gernert was operating his vehicle on a “through highway”, that highway was a one way street, and Gernert was going the wrong way.

The holding of the Court is expressed in devastatingly concise terms. It said, at 325:

“It is obvious that when Gernert was operating his motor vehicle the wrong way on a one-way street he was not ‘proceed [ing] in a lawful manner’ and thus his vehicle was not entitled to preference over that of Covington. Accordingly, the Baltimore City Court erred in determining that the boulevard rule required a finding that Covington was guilty of contributory negligence as a matter of law. We need go no further than that.”

The Court took note of other evidence that tended to show Covington guilty of contributory negligence. It said, at 325:

“On the remand the Baltimore City Court will be permitted to consider all relevant facts in determining whether Covington may recover from Gernert except that it will not be permitted to regard Covington as having violated the boulevard rule.”

The message of Covington v. Gernert is clear. The departure from the past arises when the favored driver is not proceeding in a lawful manner. Then the boulevard rule no longer applies, and the favored driver is not entitled to preference over the unfavored driver.

This means that in a case arising from a vehicle collision which happens when one driver enters a through highway, if there is evidence sufficient to permit a finding of fact that the favored driver was proceeding in a manner that was not lawful, then it is for the jury to determine whether the favored driver has lost his statutory preference. As the Court of Appeals said in Covington, “[the trial court] will not be permitted to regard [the entering driver] as having violated the boulevard rule.”

At the risk of justifiable criticism for indulging in the vice of self-quotation, this writer repeats what he said in a concurring opinion in this Court’s Beckward v. Hensel, 20 Md. App. at 560, 316 A. 2d at 318:

“When the boulevard rule is applicable, it is virtually absolute, but, accepting the efficacy of that view, we still may not hold it applicable to every collision that happens in the intersection of a favored and an unfavored highway. The key is proximate cause. If the harm was proximately caused by breach of the duty imposed by the boulevard rule, then the rule must be strictly applied. But if the proximate cause was the breach, by either party, of some other duty, then the boulevard rule is not applicable.”

What Covington v. Gernert, supra, does, and what we think justice demands, is to permit our judicial system, in the search for proximate cause — the underlying fault which caused the harm — to look behind doors hitherto barred.

Appellants also attempt to proceed to trial on either or both of the only two chinks heretofore judicially seen in the armor of the boulevard rule. To avoid the rule, they argue that Steven had completed his turn and had “entered the flow of traffic”. To evade the rule, they argue that the truck driver had the last clear chance to prevent the accident.

The “flow of traffic” rule, suggested by the holdings in Ness v. Males, 201 Md. 235, 93 A. 2d 541 (1953) and McCann v. Crum, 231 Md. 65, 188 A. 2d 537 (1963), was stated explicitly in Grue v. Collins, 237 Md. 150, 205 A. 2d 260 (1964), where the Court said, at 157:

“Rigorous as are the duties imposed upon the unfavored driver in entering the public highway for the protection of the public and for the smooth flow of traffic, he is not a perpetual pariah; if he has observed the mandates of the law in entering the intersection and has become a part of the flow of traffic on the favored highway, he has the same rights and is subject to the same duties as the other drivers on that highway.”

The rule has been discussed and applied by us in Kowalewski v. Carter, 11 Md. App. 182, 273 A. 2d 212 (1971); Paul v. Lyons, 34 Md. App. 93, 366 A. 2d 410 (1976), and Great Coastal Express v. Schruefer, 34 Md. App. 706, 369 A. 2d 118 (1977). To suggest that the rule could be applied to the facts of this case, when the accident involves vehicles going in opposite directions, approaches the ridiculous. It is quite impossible for a southbound vehicle to enter the flow of northbound traffic.

As to last clear chance, there simply were no facts whatever before the court which would have permitted consideration of that rule of law.

Based upon the law as we now understand it to be, the facts presented to the court raised genuine and material issues which required a trial. It was error to grant judgment summarily.

Judgment reversed.

Case remanded for further proceedings.

Appellees to pay costs.

      . McCaslin was never served. After two non ests the clerk made an entry, “Lie Dormant Under Rule” as to McCaslin. See Maryland Rule 112. No appearance or pleading was ever filed for McCaslin. Appellants say “he has been effectively dropped from the case.” We treat him so, to avoid problems under Rule 605 a.

      . Since only Flow Laboratories made the motion, the use of the plural was probably inadvertent.

      . Plaintiffs filed a timely motion to revise the judgment, and supported it with a deposition containing “new evidence”. The motion to revise was denied. The appeal was timely as to both orders, and both were briefed and argued. Because we are reversing the judgement, there is no need to consider the order denying the motion to revise it.

      . Reversing the judgment of this Court in Owens v. Creaser, 14 Md. App. 593, 288 A. 2d 394 (1972).

      . Reversing the judgment of this Court in Beckward v. Hensel, 20 Md. App. 544, 316 A. 2d 309 (1974).

      . The traffic accidents which gave rise to Creaser v. Owens, supra, and Hensel v. Beckward, supra, occurred before the change. The accident in Johnson v. Dortch, supra, occurred after the change.

      . The identical definition is codified, effective 1 July 1977, as Code, Transportation Art., § 21-101 (01.

      . The opinion noted that this was the first case to reach the Court since the change in the statute in which the change appears to compel a different result.


source: Caselaw Access Project

license: Public Domain

text:
    LARRY DONNELL PHARR v. STATE OF MARYLAND
    [No. 732,
    September Term, 1976.]

      Decided July 7, 1977.

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

      Bradford C. Peabody, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and William Spellbring, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Larry Donnell Pharr was found guilty by a jury in the Circuit Court for Prince George’s County of charges of rape, committing an unnatural and perverted sexual practice, kidnapping, robbery with a dangerous and deadly weapon, and use of a handgun in the commission of a crime of violence. He appeals from the judgments entered against him on those verdicts, and raises two questions in this Court. They are:

1. Did the trial court err in denying Appellant’s motion to suppress the extra-judicial confession?
2. Was the evidence sufficient to sustain Appellant’s conviction for use of a handgun in the commission of a crime of violence?

The Corpus Delicti

Although the facts of the crimes are not at issue in this appeal, we shall summarize briefly the events upon which the charges were based, as they were related in court by the victim, a young woman. Shortly after 9:00 P.M. on 9 September 1975, having purchased a pair of shoes in a store in the shopping center known as Landover Mall, in Prince George’s County, she proceeded to her car on the parking lot. As she got to her car a man came up behind her and stuck a gun in her back. The man told her not to shout or scream, and to get in the car. She got in the driver’s seat and he entered the seat behind her. At his direction she drove to the end of a nearby dead end street, parked and got out. The assailant led the woman into a wooded area, ordered her to lie on the ground, and not to look at him. If she looked at him, he said, or if she screamed, he would shoot her. He was holding what she described as a silver handgun, which he cocked and uncocked several times. She turned her head to the right as she was lying on her back, and he held the gun at the left side of her head. He lay on top of her, pulled her panty hose and underpants down, and pulled his pants down. She was whining and whimpering, asking him not to shoot.

The attacker had forcible sexual intercourse with the woman. Then he held his hand over her eyes, and put his penis in her mouth for a brief time. He had sexual intercourse with her again. The man got up, she pulled up her clothes, and they walked back to her car. He took her keys and her pocketbook, and told her to get in the back. She crouched down between the seats. The man took the shoes she had bought out of the paper shopping bag they were in, and put the bag over her head. He drove for some time, stopped and summoned a friend, who followed in another car. He parked her car, took her new shoes and her watch as well as her pocketbook, then told her to stay still for five minutes. He said that her keys were on a garbage pail behind the car.

She never got a good look at her attacker, and she was not able to identify him. The victim waited, and after a few minutes she got out of the car, found her keys, and drove until she reached a gas station. The attendant called the police. About 10 days later her wallet came back to her in the mail.

One week later an almost identical occurrence took place, involving a different young woman accosted on the parking lot of the Landover Mall shopping center. The police proceeded with investigation of both crimes.

By 23 September 1975, two weeks later, the police had identified a fingerprint found on the shoe store shopping bag, mentioned above, as the fingerprint of Larry Donnell Pharr. Facts developed by the police in their investigation of these two attacks, as well as a third reported attempt, led the police to obtain warrants on 23 September 1975 for the arrest of Pharr on several charges.

The Confessions

At about 6:30 P.M. on 23 September several detectives of the Bureau of Criminal Investigation of the Prince George’s County Police, and a uniformed member of the force, went to the home of Larry Pharr in Prince George’s County with warrants for his arrest. They placed him under arrest, took him into custody, and took him to the offices of the Bureau of Criminal Investigation. There Corporal Alvin Hall, Jr. conducted an interview or interrogation of Pharr, during which Pharr allegedly confessed to Cpl. Hall that he had committed the crimes involved in this case. Cpl. Hall wrote down what Pharr said.

Trial of this case was held in the Circuit Court on 8 June 1976, Judge William B. Bowie presiding. A motion to suppress the statement was heard by the trial judge, out of the presence of the jury, during the course of the trial. The motion was denied. The statement was later admitted into evidence, over objection, when it was offered during Cpl. Hall’s testimony before the jury.

Denial of the motion to suppress the statement is the principal issue in this appeal. To determine whether the ruling was correct, we look to the record of the suppression hearing, Haslup v. State, 30 Md. App. 230, 240, 351 A. 2d 181 (1976).

Cpl. Hall testified that he rode with Pharr in a police cruiser, driven by another detective, to the office at Forestville. As he entered the cruiser, he identified himself, and read to Pharr from a short form rights card. Pharr said, “You believe I did this, but I did not.” Hall told Pharr they would not talk about it in the cruiser, but would talk about it when they got to the Bureau. When they arrived there he took Pharr to an interview room, and advised him of his rights by reading the long form waiver of rights to him.

The form, a letter sized sheet, signed by Pharr, was placed in evidence. There is no contention that the so-called warnings failed in any way to conform fully with the requirements of Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966). The last sentence of the warnings reads:

“You are further advised that you are not promised anything to make a statement and no threats or inducements have been made to compel you to make a statement.”

The next paragraph of the form contains these lines: “Having been so advised, are you willing to make a statement?” “Reply of defendant; Yes_LP _ Below the reply is the rest of the form:

“WAIVER OF RIGHTS
I have read this statement of my rights and I understand what my rights are. I am willing to make a statement and answer questions. I do not want a lawyer at this time. I understand what I am doing. No promises or threats have been made to me and no pressure or coercion of any kind has been used against me.
Signed: Larry Pharr
Witness: Cpl. A. Hall, Jr. Time: 704 PM”

Hall testified that when he read the question, “are you willing to make a statement?” Pharr said yes, which he wrote on the sheet, and initialed next to it. At the end of the waiver Pharr signed his name and wrote the time. Hall talked with Pharr about 15 or 20 minutes about general things, and then begain taking a statement in reference to a rape case which had occurred at Landover Mall.

That statement, with the time 1930 [7:30 P.M.] noted at the head, described the accosting and rape of a [Mrs. C.] on 16 September. It begins with a short narrative in Cpl. Hall’s handwriting, and continues with a series of questions and answers. Cpl. Hall testified, “The questions are my questions. The answers are what he related to those questions.” Each of the four pages is signed, perpendicular to the lines of the handwriting, with the name Larry Pharr, in what the detective said was Pharr’s handwriting. Pharr’s signature is also at the bottom of the last page.

The statement, relating to a different occurrence, was received in evidence at the suppression hearing in the present case. When that statement was concluded, Cpl. Hall took statements from Pharr about two other cases, then, timed at 2100 [9:00 P.M.], a brief addendum to the first statement. Next, timed as beginning at 2105 [9:05 P.M.], he took a statement in reference to the rape of [Miss H.] on 9-9-75, the statement at issue in this case. It contains a short narrative, followed by questions and answers. Each page was signed, across the handwriting, by Larry Pharr, and his signature is at the end.

We set out here the complete statement:

“About two weeks ago I was at Landover Mall outside the. Hecht Co. and saw a girl walking to her car. I walked up next to her and put my gun in her side and told her to be quiet. I told her to get in and drive. I told her to drive to the dead end street across from Landover Mall. She got out of the car when I told her to. Then I walked her back into the woods. Then I raped her. Then I made her get in the back seat and put the bag over her head. Then a friend of mine followed me down to Ritchie Rd. and I got out of ;her car and left the keys to her car on a trash can. Then my friend drove me home.
Q. What time did you first see the girl?
A. About 9:30 P.M.
Q. Was the Mall open?
A. Yes, it was still open.
Q. What kind of car did the girl have?
A. A yellow Camero.
Q. What was the girl wearing?
A. A Plaid dress, she had a pocketbook.
Q. Did you take any money from her.
A. About $18 in cash, plus her pocketbook which I mailed back to her.
Q. Where did you mail it to?
A. I left it in a mail box on the D. C. side across from the Jumbo in Seat Pleasant.
Q. What do you mean by you raped her?
A. had intercourse with her.
Q. Was she scared?
A. Who wouldn’t be scared with a man who had a gun in his hand.
Q. Where did you rape her?
A. By the woods at the dead end street.
Q. What were you wearing that day?
A. I don’t remember.
Q. What kind of gun did you have?
A. A Silver blank gun.
Q. Where is it now?
A. A friend of mine has it.
Q. Who is the friend?
A. He didn’t have anything to do with the rape, so I won’t tell you who he was.
Q. Where did you first meet him?
A. At his house.
Q. Where is that?
A. I won’t tell.
Q. Where did you get the gun?
A. From a white boy named Beall who use to live on Hill Rd.
Q. When did you first put the bag on the girls head?
A. After I raped her, because I didn’t want her to see what I looked like.
Q. Did you tell the girl the gun was loaded?
A. Yes, but it really wasn’t.
Q. What did you do with the money you got?
A. Spent it.
Q. Is this statement true and correct to the best of your knowledge and recollection.
A. Yeah.
Q. Were you advised of your rights prior to making this statement?
A. Yes.
Q. Is there anything you wish to add to this statement?
A. I know she called it rape, but it wasn’t rape.
Q. In the first part of your statement you called it Rape now you say it wasn’t,, why?
A. Because I didn’t force her clothes off and she said she would do anything as long as I didn’t hurt her.”

Pharr testified. He had turned 18 in August. He said that when the police came, he was at the kitchen table, eating dinner. He said he heard the knock, and his brother answered the door. He heard his brother say, “Get the shotgun out of my face.” Larry Pharr went to the door. One of the officers was holding a shotgun, pointed down. Pharr said he was under the influence of marijuana and vodka, but “I kind of woke up a little bit when he started shoving me around.” Pharr said that his mother had taken him to a clinic at a hospital that day, where he had a check-up. She had brought him back about 3:00 o’clock, and dropped him off at a friend’s house, where he saw several other friends. He said he had the vodka 15 minutes after his mother brought him back, and that he had smoked marijuana at his friend’s house. He walked home from there.

Appellant told of being in the interview room with Cpl. Hall. Nobody else was there, except that a detective came to the door for a moment, and left. Pharr said Hall read to him from a paper, and that the signature “Larry Pharr” at the bottom was his, although he said that the initials “LP” above were not his handwriting. He said he knew that he was signing a piece of paper, and that it pertained to his rights, but that he did not read it.

Pharr testified that they were sitting at a desk, and Cpl. Hall had some papers and a pencil, and he was writing. The officer turned to him and said, “Now, let’s hurry up and get this over with so we can try and get you out of here.” Asked by his counsel, “Did you sign across those pieces of paper?”, Pharr said, “Not at that time.” He quoted Cpl. Hall:

“The sooner you cooperate with us the sooner we can get you out of here and some people were in for armed robberies and murder get personal bond, and if you cooperate I’ll go down there and talk to the clerk and see if I can get you personal bond.”

Pharr signed his name across the papers, on every sheet. He did not read them. He testified that he had been advised of his rights and booked many times before, as a juvenile; he guessed more than 10 times.

Appellant also called as a witness at the suppression hearing a member of the Sheriffs Department, a classification officer, formerly program officer at the County Detention Center. She had done remedial reading work with Pharr. She had given him self-administered tests which indicated to her that his reading comprehension was at the level of the second grade, seventh month. The witness saw Pharr frequently over a period of months and had verbal communication with him. There was no time in which he did not seem to understand what she said to him. She never had any trouble communicating with him.

Appellant also put in evidence at the suppression hearing his Juvenile Court records in approximately 20 cases, for the purpose of showing that testing at the various places he had been detained showed a low level of comprehension.

Argument for the appellant at the suppression hearing was that the statement should be suppressed because there was not a knowing and voluntary relinquishment by Pharr of his constitutional rights — that Pharr did not make a knowing and intelligent waiver, because of his youth, his IQ of 82, his low level of comprehension generally, and because at the time he was under the influence of alcohol and marijuana. There was no contention, not even the slightest suggestion, that Pharr had been induced to confess by any promise held out to him.

It was the duty of the State to persuade the hearing judge by a preponderance of the evidence that Pharr knowingly and voluntarily made the statement attributed to him. Mulligan v. State, 18 Md. App. 588, 308 A. 2d 418 (1973). Judge Bowie was so persuaded. With respect to the temporary effect of alcohol and marijuana upon appellant’s capacity to understand what he was doing, Judge Bowie said to Pharr:

“That’s your statement * * * that you were under the influence of alcohol and marijuana and I don’t believe it.”

That contention was rejected on the basis of the judge’s assessment of its credibility, in the light of all of the circumstances, including Pharr’s detailed recital of events both before and after his arrest.

On the question of Pharr’s ability to comprehend what was read and said to him, as well as the nature of his interrogation, both temporarily because of the alleged intoxication, and generally because of his level of understanding, Judge Bowie commented:

“I would observe for the record * * * we are looking at these people, we are hearing them and getting the sense of the whole picture. As far as I’m concerned he came over loud and clear. He came over very loud and clear. I’m convinced that he thoroughly and completely and fully knew and understood everything that was asked of him in here. And his answers made sense to what were put to him by his own attorney and by [the prosecutor].”

Regarding a suggestion that Pharr did not read the pages of the statement when he signed them, the judge explained the minimal significance of the signatures. He said:

“ * * * all we are confronted with here as I see it is the officer said he put down on the yellow paper what the defendant told him. We are not here confronted with a piece of paper that the officer had presented to the defendant to read and then sign his name. That is not it. This was a record, an accurate record, if you will, of what the defendant had told him. And all he is doing is he signs his signature to show that he was there at the time it was done, not that he read it over or anything else, or that it was a strange piece of paper as it was in these tests. It was his conversation put down in writing.”

The court ruled:

“So we conclude on the totality of the circumstances that this defendant fully and completely understood what his rights were, and that he waived them, and when he gave any statement it was voluntarily, freely, voluntarily, and understandingly made.”

The Alleged Intoxication

In Dempsey v. State, 277 Md. 134, 355 A. 2d 455 (1976), the Court of Appeals, citing Bryant v. State, 229 Md. 531, 185 A. 2d 190 (1962) and Mundell v. State, 244 Md. 91, 223 A. 2d 184 (1966), said, at 151:

“In Bryant and Mundell, the Court set forth the general principle that evidence of mental impairment from drugs or alcohol does not per se render a confession involuntary, and that a court may admit a confession into evidence if it concludes that it was freely and voluntarily made despite the evidence of mental impairment.”

The Court said further, at 153-54:

“We do not suggest in this case that the evidence concerning Dempsey’s drinking and alleged intoxication required the trial judge or the jury to find that his confession was involuntary. On the contrary, we reiterate that the mere fact that a defendant has been drinking or is under the influence of alcohol at the time of his confession does not as a matter of law require the conclusion • that the confession was not freely and voluntarily made.”

In that case the evidence was sufficient to raise a legitimate jury issue as to voluntariness after the confession was in evidence before the jury. That issue was equally available to the appellant in this case, and was argued by him.

Upon our independent review of the evidence on the issue of impairment by intoxication we reject, as not credible, appellant’s contention that his state of intoxication rendered his confession unknowing and involuntary.

Capacity to Comprehend

Appellant’s testimony at the suppression hearing, and the record made by Cpl. Hall of appellant’s narrative description of events, and his answers to several series of specific questions at the time of the interrogation on 23 September 1975, all provide a basis for determining whether he understood what he and Cpl. Hall were talking about.

Cpl. Hall’s testimony of what he read to Pharr, and Pharr’s statement to him that he understood furnishes additional insight. The hearing judge’s observation and impression of Pharr’s comprehension are highly important.

Upon our own evaluation of the record we too are persuaded by a preponderance of the evidence that what Pharr heard and what he said during his interrogation by Cpl. Hall, were heard and said with understanding. Greenwell v. State, 32 Md. App. 579, 363 A. 2d 555 (1976).

The Inducement

A third factor affecting the question of voluntariness, and thus admissibility of appellant’s confession, has been injected for the first time in this appeal. It is, of course, a part of the overall issue of suppression for involuntariness, which was raised and decided below.

Inducement is argued here on the basis of the alleged statement of Cpl. Hall, as testified by Pharr, that, “if you cooperate I’ll go down there and talk to the clerk and see if I can get you personal bond.” Cpl. Hall was not recalled to refute that testimony.

It is indeed the law, as appellant points out, citing Smith v. State, 189 Md. 596, 56 A. 2d 818 (1948), that to be admissible in evidence a confession must be the free and voluntary act of the accused. In that case the Court of Appeals said at 603-04:

“Before a confession can be admitted in evidence, the State must show, to the satisfaction of the court, that it was the free and voluntary act of an accused; that no force or coercion was exercised by the officers obtaining the confession, to cause the accused to confess; that no hope or promise was held out to an accused for the purpose of inducing him to confess.”

The rule has been stated and applied in many cases, by the Court of Appeals, and by this Court. Appellant cites and quotes from Robinson v. State, 3 Md. App. 666, 240 A. 2d 638 (1968), in which Chief Judge Murphy said for this Court, at 670-71:

“It is well settled that in order for a confession to be admissible into evidence against an accused, the State must prove that it was voluntary and not the product of force, threats, promises or inducements. Abbott v. State, 231 Md. 462; Cooper v. State, 1 Md. App. 190. Otherwise stated, to be voluntary, a statement cannot be ‘extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however slight, nor by the exertion of any improper influence.’ ”

A pitfall for the State may be created when at a suppression hearing the defendant testifies that he was induced tb confess by a promise held out to him (or by a threat made, or other coercion brought to bear upon him) by a police officer. If such testimony is foreseen, the prosecutor may refute it in advance. If it is not foreseen, and not already refuted or rebutted, the prosecutor must call as a witness the person alleged to have made the promise or threat, or a person in whose presence it wás allegedly made, so as to refute the allegation. Failure to do so may require exclusion of the confession.

The need for prosecutorial alertness, and the serious consequences of its lack, have been illustrated in numerous cases in the Court of Appeals and in this Court. A rule, frequently identified with the case of Streams v. State, 238 Md. 278, 208 A. 2d 614 (1965), was stated earlier in Mercer v. State, 237 Md. 479, 206 A. 2d 797 (1965). In the latter case the accused had made a confession after interrogation for about two and one half hours, with three different officers participating from time to time. At a hearing to suppress, the accused testified that two named officers used physical force upon him. The Court said, at 483-84:

“Sergeant Salter was the only officer produced by the State who testified as to the voluntariness of the appellant’s admissions. Sergeant Salter testified that the appellant’s statements were given at the police station some two and one-half hours after the appellant had been brought there and that while he, the Sergeant, was in the room with the appellant, no one touched him. The Sergeant testified, however, that he was not in the room with him the entire time and that he had left prior to the alleged beating. When he returned to take the statement he did not observe any bruises or marks upon the.appellant and he said the appellant did not make any complaint to him that he had been hit or mistreated by anyone. Detectives Montgomery and Clements were not called to the stand.
“We have repeatedly held that the burden is upon the State to show that a confession offered in evidence is a voluntary act of the accused and not a product of force or threats. Combs v. State, 237 Md. 428. Bean v. State, 234 Md. 432, 199 A. 2d 773 (1964); Abbott v. State, 231 Md. 462, 465, 190 A. 2d 797 (1963); Jackson v. State, 209 Md. 390, 394-95, 121 A. 2d 242 (1956). The testimony of the appellant that he was physically mistreated by the two detectives was uncontradicted by either of the persons named. The fact that Sergeant Salter testified he did not observe any marks upon the appellant and that the appellant made no complaint to him when the Sergeant returned to the room is not of itself sufficient, in our opinion, to rebut the appellant’s testimony. Neither of the detectives accused by the appellant of mistreating him was called to the stand by the State.”

In Streams the Court said, at 282:

“It may be enough if one credible witness can testify from personal observation that nothing was said or done prior to and during the obtention of the confession to mar or destroy its voluntary character and there is no claim by the prisoner of improper treatment by others than those covered by such testimony.”

In Price v. State, 261 Md. 573, 277 A. 2d 256 (1971), the Court of Appeals referred to the Streams rule, but held that the facts there did not call for its application. The Streams rule was held clearly applicable in Gill v. State 265 Md. 350, 289 A. 2d 575 (1972), so as to require reversal because testimony that a confession was induced was unrebutted by the only person able to rebut it.

In Ponds v. State, 25 Md. App. 162, 335 A. 2d 162 (1975), twe rejected a contention that the Streams rule required the suppression of a confession. We said, at 176:

“It is true that no specific denial of those specific words [an alleged promise by an officer to assist the defendant in getting out on personal bond that night] are to be found in the record.”

We pointed out that there was conflicting testimony relating to the time the alleged inducement took place, if it took place at all. We said, at 176:

“Thus the trier of facts was confronted by the necessity to resolve the critically dispositive conflicting testimony. If the trial judge believed the testimony of McFee and Staccone, there manifestly was no promise that induced the Ranier [a burglary victim] confession. On the contrary if the trial judge believed the testimony of Ponds, the Ranier confession was involuntary.”

We have carefully studied the testimony given by the appellant at the suppression hearing. It establishes quite clearly the chronology of the events of the evening of 23 September 1975. It does not conflict with the chronology of Cpl. Hall’s testimony relating those same events. In outline, they went this way:

1. Pharr was arrested at his home by several police officers, and taken to the police station.

2. Cpl. Hall took Pharr into a room, where both sat at a desk.

3. Cpl. Hall read to Pharr from a paper, which pertained to his rights. He signed it.

4. Cpl. Hall and Pharr talked. Cpl. Hall was writing, on several sheets of paper.

B. When Cpl. Hall finished writing, he asked Pharr to sign his name on each sheet.

6. Pharr did not sign the pages at that time, but he did sign after Cpl. Hall told him he would talk to the clerk and see if he could get him personal bond.

It becomes clear that if that alleged promise induced Pharr to do anything, it did not induce him to confess. He had already done that. It was not a promise “held out to an accused for the purpose of inducing him to confess.” Smith v. State, supra. The confession had been completed. It had been recorded in the handwriting of Cpl Hall. Whether Pharr signed his name on the pages, or declined to do so, had nothing to do with its voluntariness, or its admissibility. Nor did his testimony that he told the officer that he didn’t know anything about any rape go to the issue of voluntariness.

The facts of this case do not invoke the holding of Mercer v. State, supra, and of Streams v. State, supra.

We cannot help but attach significance to the content of the paper which was read to Pharr, and which he said he understood. He was told, “you are not promised anything to make a statement.” He signed the waiver saying that he was willing to make a statement, and that no promises or threats had been made to him.

If one accepts, as we do, that Cpl. Hall read to Pharr what was printed on the paper, and that Pharr understood what it said, and agreed to the waiver, then one wonders if it is necessary thereafter to have Pharr sign still another paper saying, “I have not been promised anything to make a statement that I have not been promised anything . . . etc., etc., etc.,”.

There was no error in the ruling of the lower court denying the motion to suppress Pharr’s confession, and admitting it in evidence.

The Handgun Charge

We agree with appellant’s argument that the evidence was not sufficient to convict him on the charge of using a handgun in the commission of a crime of violence. His motion for judgment of acquittal on that count should have been granted.

The victim said that her assailant was holding a “silver handgun”. He cocked and uncocked it several times, but did not fire it. Appellant’s confession said that he had a silver blank gun. No gun was produced. The evidence did not show that the weapon Pharr used came within the statutory definition of handgun. We shall reverse that conviction. Howell v. State, 278 Md. 389, 364 A. 2d 797 (1976); Tisdale v. State, 30 Md. App. 334, 353 A. 2d 653 (1976).

We have considered the additional arguments suggested by counsel at the express direction of the appellant. They have no merit.

Judgment on count charging use of a handgun in the commission of a crime of violence, reversed.

Judgments on other counts affirmed.

Appellant to pay costs.

      . It may be of some significance that no instruction was asked or given regarding the effect of inducement on the voluntariness of a confession, nor was there any reference whatever to a claim of inducement in the argument to the jury, although Pharr gave substantially the same testimony before the jury.

      . We do not mean to suggest that the State should attempt to refute an allegation that is true. If it is true, we would not expect the State to offer the confession at all. If the question is borderline, the State should lay out all of the facts.

      . The opinion in Streams has led to some confusion. The rule it states is clear enough. But the facts in the case presented two separate occasions, in one a promise, and in the other, a promise and a threat. Applied to the first, the rule required reversal. Applied to the second occasion, it appears that the requirements of the rule were met. It is not entirely clear whether the reversal was based on one of the occasions, or on both.

      . Fuzzy thinking is not, unfortunately, a stranger to the law, or to lawyers’ arguments, or even to judicial opinions. The contentions here include a share of fuzziness. When one attacks a confession on the ground of voluntariness he is saying, in effect: “I did confess to the police that I committed the crime. The words written down there are indeed my words. But when I told them to the police, I was giving evidence against myself. When the police questioned me, I felt compelled to answer them. I did not know that I had a constitutional right against being compelled to give evidence against myself. Since I did not know of that right, I did not understandingly waive it. For that reason, my confession is deemed, constitutionally, to have been involuntary. Being involuntary, it may not be used against me. Its truth or falsity is irrelevant to its voluntariness.”
      On the other hand, if one attacks a confession on the ground that he did not say what the document records as having been said by him — that it is a forgery or otherwise a trumped-up document, then the question is simply whether the document is a true or a false record, and voluntariness is irrelevant.


author: Moore, J.,

text:
    ROBERT E. RIFFEY et al. v. CESAR L. TONDER et al.
    [No. 788,
    September Term, 1976.]

      Decided July 7, 1977.

      The cause was argued before Menchine, Moore and Liss, JJ.

      Ronald M. Sharrow, with whom were Alfred S. Julien, Stuart A. Schlessinger and Lonn E. Bemey on the brief, for appellants.
    John F. King, with whom were E. Dale Adkins, III, and Anderson, Coe & King on the brief, for appellee Cesar L. Tonder. Wilbur D. Preston, Jr., with whom was M. Natalie McSherry on the brief, for appellee South Baltimore General Hospital.
   Moore, J.,

delivered the opinion of the Court.

The surviving husband of a young mother who died of a pulmonary embolism instituted this medical malpractice action against her obstetrician, Cesar L. Tonder, M.D. and the South Baltimore General Hospital, appellees. Suit was brought by the husband individually, in his capacity as administrator, and as father and natural guardian of the couple’s two infant children. After an 11-day jury trial, there was a verdict for the defendants-appellees. On this appeal, the principal assignment of error is a ruling of the trial court which precluded the appellants from producing a pathologist as a rebuttal witness. Errors in the court’s charge to the jury are also claimed. We find reversible error in the holding by the trial court that the testimony of the pathologist would not have constituted rebuttal evidence.

I

On October 23, 1970, Wanda Riffey delivered a child by caesarean section at the South Baltimore General Hospital. Her physician, Dr. Cesar L. Tonder, a specialist in obstetrics and gynecology, was Associate Director of the Department of Obstetrics and Gynecology at the Hospital. The medical records introduced into evidence revealed that Mrs. Riffey was a private patient of Dr. Tonder. She was discharged on October 26,1970.

A persistent swelling of her right calf forced Mrs. Riffey to seek medical assistance in the emergency room of the Hospital on November 7, 1970. One of the Hospital’s interns, Dr. Yu, examined her at that time and diagnosed her condition as acute thrombophlebitis (the formation of a blood clot caused by inflammation of the vein). She was admitted under the care of Dr. Tonder. The latter saw the patient on the evening of the 7th and, concurring with Dr. Yu’s diagnosis, ordered administration of the drug dextran. One of the facts elicited from Mrs. Riffey upon admission was that the leg pain associated with the swelling had persisted for about one week. On November 10, she was seen in consultation by Dr. Colen Heinritz, an internist with privileges at the Hospital. He examined her, made a diagnosis of thrombophlebitis resolving in the right leg, and reordered another unit of dextran. Twice the following day, in a follow-up consultation, Dr. Kermit Bonovich, Dr. Heinritz’s partner, visited the patient.

The medical records disclose that on November 12 the patient experienced chest pains, of which she complained to the nurse, in the upper left lung and at the base of the neck. One of the Hospital’s interns, Dr. Matesic, was notified and he ordered chest x-rays (which were negative) and recorded her vital signs. Additionally, she was examined the same day by Dr. Bonovich, who noted that she was responding well to the dextran and that she was ambulatory.

Mrs. Riffey was discharged from the Hospital on November 14 at 9:15 a.m. According to her discharge records, she was asymptomatic, swelling and pain having been relieved. Shortly after her release, however, while at home, she collapsed and was rushed to the emergency room of Bon Secours Hospital. There she succumbed to a massive pulmonary embolism at 11:45 a.m.

Dr. William D. Roche, a specialist in obstetrics and gynecology at Navy Regional Medical Center in San Diego, California, qualified as appellants’ sole expert witness. In his opinion, both Dr. Tonder and the Hospital breached the appropriate standard of care required of physicians and hospitals in the same class as the appellees, acting under similar circumstances, by failing to diagnose Mrs. Riffey’s symptoms on November 12, the day of her chest complaints, as a minor pulmonary embolism, and by failing thereafter to treat her properly with an anticoagulant drug, specifically heparin. Dr. Roche testified that where an overweight, post-operative patient, suffering from thrombophlebitis complains of chest pains, a diagnosis of a pulmonary embolus is indicated “until otherwise proven.”

Testifying from the medical records admitted in evidence, Dr. Roche concluded that certain diagnostic tests should have been performed to ascertain the existence vel non of an embolus on November 12. These tests should have included additional x-rays, enzyme, bilirubin and blood gas tests, a lung scan and electrocardiograms. The physician relied upon the recorded vital signs, measured on the day of Mrs. Riffey’s chest complaints, indicating elevated pulse (110 per minute) and increased respiratory rate (from 20 to 28) to corroborate his conclusions that the patient suffered from a minor pulmonary embolism on November 12. By administering the drug heparin, according to Dr. Roche, Mrs. Riffey’s blood would not have coagulated, or clotted, to any further degree thereby avoiding the possibility of a second, more serious pulmonary embolus; “my opinion is unequivocally that failure to treat this first pulmonary embolus directly led to her death,” he flatly declared.

In their defense, the appellees produced, in addition to the treating physicians, Dr. Tonder, Dr. Bonovich and Dr. Heinritz, three other medical expert witnesses, unconnected with the treatment of Mrs. Riffey. Each of the witnesses testified that based on the medical records and the autopsy report, Mrs. Riffey did not experience a minor pulmonary embolism on November 12. According to Dr. C. Thomas Flotte, associate professor of surgery at the University of Maryland Medical School, the signs and symptoms of a pulmonary embolism, including sharp, crushing pain in the chest, as opposed to the tenderness noted in Mrs. Riffey’s case, respiratory distress and elevated pulse, were not indicated on the 12th. Also, both Dr. Flotte and Dr. Umberto Villa Santa, professor of medicine at the University of Maryland, stated that the use of dextran was in keeping with the standard of care in treating thrombophlebitis.

II The Rebuttal Witness

Of critical importance to appellants’ case was evidence that Mrs. Riffey had in fact suffered a minor pulmonary embolism on November 12. Dr. Roche, in stating his conclusion as to the existence of a pulmonary embolism on November 12, relied primarily upon the Hospital’s medical records of that day. Although appellants’ counsel did inquire of the witness whether he had reviewed the autopsy report, to which Dr. Roche affirmatively responded, it is clear from the record that the doctor used the autopsy report for a limited purpose. The following appears in the transcript:

“Q. (Mr. Julian [appellants’ counsel]) Doctor, have you, and I will request also that you look at the autopsy report in the case of Mrs. Riffey?
A. Yes, I have.
Q. Do you have a copy of it, doctor?
A. Yes, I have a copy.
Q. First, with respect to her general state of health, her vital organs, heart, liver, spleen, those things, what does it show with respect to this woman?
A. She was an extremely healthy young woman.
Q. And insofar as the hospital record and the autopsy is concerned, did she reveal any kind of a bleeding problem?
A. None whatsoever.”

On cross-examination, although appellees elicited from Dr. Roche the fact that he considered the autopsy in formulating his opinion as to the deceased’s condition on November 12, the substance of the examination, with regard to the autopsy report, concerned only the witness’ assertion on direct that there were no indications of a bleeding problem.

The appellees’ experts, however, used the autopsy report quite extensively in their direct examination to rebut Dr. Roche’s testimony that Mrs. Riffey suffered a pulmonary embolism on the 12th, and that certain diagnostic tests would have revealed this condition. Dr. Flotte was questioned as follows:

“Q. (By Mr. King [counsel for appellee Tonder]) Now, doctor, have you an opinion, with reasonable medical certainty, considering Mrs. Riffey’$ chart and as well as her autopsy findings on autopsy [sic], have you an opinion, with reasonable medical certainty, whether or not on the 12th Mrs. Riffey did have a pulmonary embolus or pulmonary embolia
A. There is nothing to suggest that she did. The findings don’t mention anything that would suggest a prior pulmonary embolus.
Q. When you say, the findings don’t suggest anything which would — what was your answer, sir?
A. When you have a pulmonary embolus, normally you have loss of blood supply to a wedge of tissue in the lung and normally forty-eight hours after this, it should be easily picked up at rntopsy, and they don’t mention it. They say, the lungs are smooth and glistening, and so forth.
Q. Doctor, have you had occasion in the past to examine pathology and pathological reports in patients with pulmonary emboli’!
A. Yes.
Q. What’s been your experience in that respect?
A. Unfortunately for most of them, similar to this, there is a massive fatal pulmonary embolus that causes death in a matter of minutes or within an hour.
Q. Where — go ahead, sir.
A. In lesser ones — and, of course, most of them don’t die, — it is only a coincidental finding and most often we didn’t know they had a pulmonary embolus, and we do find this wedge-shaped infarction.
Q. Did Mrs. Riffey have any such wedge-shaped infarction?
A. It is not reported in the autopsy.”

Similarly, with regard to the issue of what the autopsy report reveals as to Mrs. Riffey’s condition on November 12th, appellees’ expert, Dr. Villa Santa, testified as follows:

“Q. Have you an opinion, considering the autopsy of Mrs. Riffey, have you an opinion, with reasonable medical certainty, that if a lung scan or serial x-rays had been done, whether or not, in view of her findings on autospy, whether or not they would have been diagnostic of pulmonary emboli on the 12th?
A. Could I use the blackboard?
Q. Yes.
A. If we can just draw roughly the lungs in a patient, then, you know, this is the neck and the face is here, and these are the shoulders. This is the diaphram and the belly button is down here. The lungs look like two big sacks and there is blood coming to the lungs, coming from the area here called the iris of the lung, and blood comes through the arteries, as you all know, and then leaves'the lung through veins. And when you have an embolism, what happens, there is a clot, something that stops the flow of blood to this arterial tree. . .. So, what happens, all this blood just comes back and what happens in this area that, is aerated by this artery, there is a tremendous congestion. because all this blood comes back. That is what we call an infarction, and this thing usually has a triangular configuration and it goes all the way to the surface of the lung, where we have a lining that we call the pleura, and this is an infarction. If the patient survives and the patient lives through it, it takes roughly a minimum of eight days, approximately ten days before this blood is eventually absorbed and you don’t see it anymore. On anybody who has had an infarction and in whom, you know the life stops two days later, if you do a post mortem examination of the lungs, you should first find [these] changes.
Q. Were there any such changes found in Mrs. Riffey?
A. On the autopsy there is absolutely no indication that there was any infarction because, the first thing, the description of the pleura, which is the lining here, is of being normal, [sic] Usually if you have an infarction, this becomes bluish — redish-bluish — is due to the fact that the blood — it is just like when you have a bruise. The skin is light and it gets dark. And so, the pleura should have been dark, and in cutting the lung, they should have found that and there was no evidence that an infarction was there.” (Emphasis added.)

Our study of the record discloses that each of appellees’ expert witnesses relied upon the autopsy report’s findings to contradict Dr. Roche’s testimony that other diagnostic tests, in addition to the lung scan or serial x-rays about which Dr. Villa Santa testified, would have disclosed the presence of a minor embolus on the 12th of November.

It is clear from the record that the testimony of Dr. Villa Santa, a nonpathologist, impelled appellants’ counsel to secure the testimony of a qualified pathologist as a rebuttal witness. (Indeed, counsel for appellants stated on the record that until the testimony of Dr. Villa Santa he had never conferred with a pathologist in this case.) In essence, Dr. Villa Santa testified that there could not have been a small embolus on November 12th and, as shown by his testimony, above quoted, he drew a diagram and demonstrated from the autopsy report that had there been a small embolus pre-existing, the configuration which he placed in the diagram would have occurred. This, trial counsel argued to the trial court, was a pathological question. In addition, counsel maintained that Dr. Villa Santa’s opinion that, with the massive embolus shown in the diagram, any effort to rescue the decedent would have been unavailing, also involved a pathological question.

Accordingly, counsel informed the court after a recess following the testimony of Dr. Villa Santa, that he had conferred with Dr. Michael Baden, Assistant Chief Medical Examiner of New York City, and had informed counsel for the appellees, by appropriate amendment to answers to interrogatories, of his intention to call Dr. Baden as a rebuttal witness. In response to objections from counsel for the appellees that the testimony of Dr. Baden would be nothing more than cumulative to the testimony of Dr. Roche, appellants’ trial counsel advised the court that “I am not using this doctor to make out my ease.” He then went on to explain:

“I did not anticipate through Roche the kind of testimony that Villa Santa would give and I think it is absolutely improper and I think in the interest of justice, it’s important that a jury really know what an autopsy report is about, and whether in fact it does indicate that no life saving measure could be employed for this woman or whether, indeed, it is of such condition that it proscribes any thought of a pre-existing small emboli.”

When called upon by the court for a formal proffer concerning Dr. Baden’s testimony, trial counsel replied as follows:

“Dr. Baden’s testimony will be, A, that this autopsy report does not indicate that there was not a pre-existing small emboli to the massive emboli found. He mil testify that autopsy reports are for the purpose of ascertaining cause of death and not for peripheral questions such as that posed by counsel. ‘Does a massive embolus in this case necessarily mean that there could not have been a pre-existing small embolus?’ He will testify that Dr. Villa Santa’s exhibit — the number escapes me, Judge, — the diagram which he drew is not at all in keeping with pathological doctrines and, actually, does not disclose the condition which a patient with an embolus would have. I’m not just using him, Your Honor, — I am not attempting to use him to establish anything with respect to the use of Heparin.
(The Court) I understand.
(Mr. Julien) The use of Dextran, nothing with respect to my prima facie case.” (Emphasis added.)

At the conclusion of this colloquy, the trial judge observed, “I am inclined to believe that the subject matter is an appropriate one for rebuttal testimony.” (Emphasis added.) But he observed also that the element of appellees’ inability to depose Dr. Baden presented a problem. Over appellant’s counsel’s protestations that counsel for the Hospital and the doctors had theretofore taken no depositions whatever in the case, the court ruled that appellants’ counsel would be permitted to call Dr. Baden provided he was produced that afternoon or the next afternoon, in Baltimore, for purposes of deposition.

Subsequently it developed that Dr. Baden could not be deposed within the time schedule set by the court for the reason that he was engaged in a 2-day examination for the position of Chief Medical Examiner for the City of New York, and counsel sought additional time to meet the requirement that the witness be deposed. Counsel again assured the court that he was offering Dr. Baden to meet “what is now the major contention of the defense, to wit, that because the autopsy report shows no evidence of infarction, there could not have been any previous small emboli prior to November 14th.” Counsel supported his plea for additional time with the following statement:

“But I respectfully submit, sir, that they have tendered a very basic issue here which I never anticipated. Had I anticipated it, I would have fully examined Dr. Roche, who is no longer available and who is in California at this point. This morning, because counsel for Dr. Tonder insisted that there had been examination of Dr. Roche on the subject of the autopsy report and did he rely upon it in arriving at his decision and, specifically, the fact that there was smooth and glistening pleura and what its affect was, we spent perhaps as much as an hour going over the minutes, all of which refuted completely the contention made by Mr. King. In effect, nothing had been said on the subject by that witness.” (Emphasis added.)

Extended argument ensued in which counsel for the appellees renewed their positions that the testimony of Dr. Baden would be merely cumulative to that of Dr. Roche.

At the conclusion of the respective arguments, the trial court recited the sequence of events which had taken place and observed that the inability to present Dr. Baden for deposition within the time specified “has now caused a complete re-examination of the question as to whether Dr. Baden’s testimony would in fact be rebuttal testimony.” The court then reconsidered and concluded that Dr. Baden’s testimony would not constitute rebuttal, stating:

“The court feels that, based on the evidence as produced, the issue of a minor nonfatal pulmonary embolism, which occurred at sometime before the pulmonary embolism, was clearly raised by the plaintiff, was clearly a part of the plaintiffs’ expert witness, Dr. Roche. What was not touched upon by the expert, Dr. Roche, was the precise reason that may or may not have been in the autopsy report, which supported or contradicted his opinion. His opinion was rendered and he supported his opinion. When defense experts were called, they pointed to something in the autopsy report which they felt contradicted Dr. Roche’s opinion.
“Now, all you are asking to do is to have another expert explain Dr. Roche’s opinion by reexamination of the autopsy report, to say that his examination of the autopsy report somehow confirms Dr. Roche’s opinion, although Dr. Roche didn’t see fit to confirm his own or support his own opinion by reference to the autopsy report in this detail. He was asked, I think, by both counsel as to what documents he had examined before rendering his opinion. I think, while he was on the witness stand, the autopsy report was offered in evidence by plaintiffs counsel. At the outset of his cross-examination, he was asked whether he had considered the South Baltimore General Hospital Record, the Bon Secours Record, and the autopsy report in the formation of his opinion and he answered affirmatively.
“Consequently, at this point I do not believe that it is rebuttal testimony. I believe it would be cumulative testimony to attempt to supply a reason for Dr. Roche’s opinion, which Dr. Roche for some reason did not supply himself. So the objection to the production of Dr. Baden is sustained.” (Emphasis added.)

Basically, rebuttal evidence is any competent evidence which explains, is a direct reply to or a contradiction of material evidence introduced by an accused in a criminal case, or by a party in a civil action. State v. Hepple, 279 Md. 265, 270, 368 A. 2d 445 (1977), aff'g, Hepple v. State, 31 Md. App. 525, 358 A. 2d 283 (1976); Mayson v. State, 238 Md. 283, 289, 208 A. 2d 599, 602 (1965); Lane v. State, 226 Md. 81, 90, 172 A. 2d 400, 404 (1961), cert. denied, 368 U. S. 993 (1962); 6 Wigmore on Evidence § 1873 (Chadbourn rev. 1976).

It is also well settled that whether evidence is properly rebuttal is a matter for the exercise of judicial discretion. In Maryland, an appellate court will not reverse for error in this determination unless the ruling of the trial court was both “manifestly wrong” and “substantially injurious.” Hepple v. State, supra, 31 Md. App. at 532, 358 A. 2d at 288.

In our opinion, the instant case involves not an attempt by appellants to adduce evidence in rebuttal which properly should have been elicited in their case in chief, or merely cumulative evidence, as the trial judge suggested but, rather, an effort to produce evidence which truly tended to answer and contradict the testimony offered during appellees’ presentation of the defense. Appellees’ expert witnesses testified, as has been explained here in some detail, that the findings contained in the autopsy report could properly be used to support the conclusion that there was no evidence present, at the time of death, that Mrs. Riffey had suffered a pulmonary embolism on November 12th. Although it was critical to appellants’ case that they produce evidence that the deceased did experience such an embolism on the 12th, and they did so by the testimony supplied by Dr. Roche based principally on his review of the medical records of November 12, it was not incumbent upon them to anticipate that appellees would rely upon the autopsy report to negate the presence of a pre-existent embolus or else be foreclosed from responding to such an assault upon their proof. Dr. Baden’s testimony, according to the appellants’ proffer, was to be restricted to whether the protocol of an autopsy would concern itself with such secondary questions as whether an infarction existed in the lining of the lungs or whether the autopsy would be limited primarily to the cause of death. If, according to the proffer, an autopsy would not be concerned with a medical condition which was not a contributing cause of death, then the testimony of appellees’ experts would have been contradicted not only concerning Mrs. Riffey’s condition on November 12th, but also as to whether certain diagnostic tests would, Have been constructive in diagnosing her condition.

We accordingly find that the trial court’s ruling that Dr. Baden’s testimony would not constitute rebuttal was “manifestly wrong.” Additionally, we conclude such error was “substantially injurious” to the rights of the appellants. If Dr. Baden had testified consistently with the proffer, there would have been evidence before the jury which, if believed, would have seriously undermined the conclusions of appellees’ experts that Mrs. Riffey did not have a pulmonary embolism on November 12. Since this issue was so crucial to appellants’ case, we find reversible error.

Ill Trial Court’s Instructions

Appellants also assert on appeal various alleged errors in the court’s charge to the jury, including refusal to give certain requested instructions, and alleged prejudicial comments made by counsel for the appellee, Dr. Tender, in his summation. Because of the nature of the alleged errors, and our disposition of the appeal, we shall discuss only those points which may be relevant on retrial.

A. Alleged Erroneous Instructions

-(!) The trial court instructed the jury that the appellants bore the burden of proof on the issue of negligence by a preponderance of the evidence. In explaining the appellants’ burden, the court stated:

“To prove something by the preponderance of the evidence means to prove it by the greater weight of the evidence. It means to prove that something is more likely true than not true. In other words, greater weight of the evidence means such evidence as when considered and compared with that opposed to it has more convincing force and produces in your minds a belief that what the plaintiff is seeking to prove is more likely true than not true.”

Also, the trial judge discussed the standard upon which the jury should evaluate the appellees’ conduct as being: “That degree of care and skill which is expected of a reasonably competent physician [and hospital] in the same class to which he belongs, acting in the same or similar circumstances.”

Subsequently, the trial judge declared:

“You are instructed that the law presumes, in the absence of evidence to the contrary, that a physician and a hospital has [sic] performed their respective duties with the required degree of care and skill. So that the plaintiffs must prove by the greater weight of the evidence that the defendants failed to exercise such care and skill as was required.” (Emphasis added.)

It is appellants’ contention that by instructing the jury that the appellees were “presumed,” in the absence of evidence to the contrary, to have performed their duties within the appropriate standard of care, that an unfair burden was placed upon their shoulders. Viewed within the entire context of the trial judge’s instructions, we conclude that the jury was properly instructed that the burden of the appellants was to prove negligence by a preponderance of the evidence, and that no greater duty was placed upon them. However, we do find troublesome the continued use of the language that a defendant-physician, in a medical malpractice action, is “presumed” to have performed within the appropriate standard of care, as defined in Shilkret v. Annapolis Emergency Hospital Association, 276 Md. 187, 349 A. 2d 245 (1975) unless otherwise proved.

The use of the word “presumption”, in the context of medical malpractice suits, first appeared in State, use of Janney v. Housekeeper, 70 Md. 162, 171, 16 A. 382 (1889), where Judge Yellott wrote:

“It was the duty of the professional men to exercise ordinary care and skill, and this being a duty imposed by law, it will be presumed that the operation was carefully and skillfully performed in the absence of proof to the contrary. As all persons are presumed to have duly performed any duty imposed by them, negligence cannot be presumed, but must be affirmatively proved. ” See, e.g., Nolan v. Dillon, 261 Md. 516, 534, 276 A. 2d 36, 46 (1971); Johns Hopkins Hospital v. Genda, 255 Md. 616, 621, 258 A. 2d 595 (1969); Lane v. Calvert, 215 Md. 457, 462, 138 A. 2d 902 (1958); Fink v. Steele, 166 Md. 354, 360, 171 A. 49 (1934). (Emphasis added.)

In Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd, 278 Md. 197, 362 A. 2d 629 (1976), Judge Moylan, in cataloguing the numerous problems) associated with the use of the word “presumption,” wrote: “to avoid future confusion, [“presume”] should be restricted to its technically proper role of describing a shifting of a burden.” 28 Md. App. at 681, 349 A. 2d at 327. Accord, McCormick on Evidence § 342 (2d ed. 1972). McCormick similarly treats the proper use of the term “presumption” as denoting the use of a procedural standardized device whereby, upon proof of fact B, the trier of facts may infer proof of fact A, thereby shifting the burden of producing evidence (and, in certain cases, shift the burden of persuasion as well) to the opposing party on that issue. Id. at § 342.

Although Judge Moylan in Evans concluded that for the sake of clarity the technical use of “presumption” should be restricted to those cases involving a shifting of the burden, he noted that the term has been used with five distinct connotations. Our examination of the relevant case law discloses that the term “presumption,” in the context of medical malpractice actions, is used merely as a shorthand statement of assigning the burden of proof in such cases, and does not involve a “shifting” of the burden. Since “the general principles which ordinarily govern in negligence cases also apply in medical malpractice claims,” Skilkret, supra, 276 Md. at 190, 349 A. 2d at 247, a statement that physicians are “presumed” to have acted within the appropriate standard of care cannot operate to shift the burden of proof to the plaintiff since that party already has the burden under the ordinary rules governing negligence actions. As “the vocabulary is rich enough to find words to describe this . . . burden [of proof] upon the [plaintiff] without resorting to a misuse of that procedural word of art ‘presume',” Evans, supra, 28 Md. App. at 681, 349 A. 2d at 327, we eschew the continued use of the term in describing the burden of proof in medical malpractice actions. As previously stated, however, we find no error here in the light of the totality of the court’s instructions with respect to the burden of proof.

(2) Appellants also contend that the trial court erred in charging the jury that:

“In the treatment of patients, physicians are not held liable for an error in a diagnosis if that diagnosis was reasonably and prudently arrived at. Physicians are permitted to exercise a wide range of discretion in the exercise of their medical skill and judgment. A physician is not to be held liable for negligence unless it is shown that the course pursued by him was not recognized as medically acceptable in the medical profession under the same or similar circumstances.”

It is asserted that “while judgment has always been held to be a defense in malpractice causes, it must be judgment which is arrived at through the use of all modalities available, and only after the most careful and precise evaluation.” We construe appellants’ contention as attacking the trial court’s charge with respect to the applicable standard of care to which the appellees were bound in diagnosing Mrs. Riffey’s condition.

In determining whether the appellees’ diagnosis was “reasonably and prudently arrived at,” the jury was bound by the trial court’s earlier instruction that:

“a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent physician in the same class to which he belongs, acting in the same or similar circumstances.”

This instruction was clearly proper as within the guidelines enunciated in Shilkret v. Annapolis Emergency Hospital Association, supra. Under these circumstances, we find no error. See generally 70 C.J.S. Physicians and Surgeons § 48 (1951); Marlow v. Cerino, 19 Md. App. 619, 630-32, 313 A. 2d 505, 511-13 (1974).

(3) In the course of the trial court’s charge to the jury, the court stated that the testimony of appellants’ expert was “diametrically opposed” to that of the experts produced by the appellees. Appellants contend that this statement compelled the jury to weigh the number of witnesses for both sides in resolving credibility. Any such impression created in the minds of the jury was certainly dispelled by the court’s further instruction that:

“The weight of the evidence is not measured by the number of witnesses nor by any particular circumstances, but rather by the inherent believability, probability and persuasion of all of the evidence.”

We find no error.

B. Failure to Give Requested Instructions

(1) At the end of the court’s charge, appellants’ counsel made several requests for additional instructions. One such instruction requested by the appellants, relating to the appellees’ use of dextran in treating Mrs. Riffey in contrast to the testimony of Dr. Roche that heparin was the drug of choice, was as follows:

“Where a drug manufacturer recommends to the medical profession the conditions under which drugs can be prescribed, the disorders it is designed to relieve, the precautionary measures which should be observed, that the doctor’s deviation from some recommendations may be considered by them as some evidence of negligence.”

In Nolan v. Dillon, supra, the Court of Appeals considered, in the context of a medical malpractice suit, whether there was error in the trial court’s charge that the jury could consider as evidence of negligence the defendant-physician’s failure to observe the manufacturer’s warnings contained in the package insert accompanying each drug. In holding that the court’s instruction was proper, Judge Singley noted that, “there was ample testimony that a failure to observe the manufacturer’s warnings did not conform to the standards of practice in the field of obstetrics in Montgomery County.” 261 Md. at 540, 276 A. 2d at 49.

The only evidence adduced on this subject in the case sub judice was the testimony of Dr. Tonder. Called as an adverse witness in appellants' case, Dr. Tonder conceded that the manufacturer’s insert and the Physicians Desk Reference, which contains substantially the same information, do not indicate the use of dextran in the treatment of thrombophlebitis. However, in the absence of testimony from either Dr. Tonder or any other medical expert to the effect that the manufacturer’s instructions contained on the package insert or in the Desk Reference establish a standard of care to which physicians of Dr. Tonder’s class, acting upon the same or similar circumstances, are bound, we hold that the trial court properly denied appellants’ instruction.

(2) Finally, appellants challenge the trial court’s failure to give a requested instruction declaring that since Dr. Tonder held himself out as a specialist in the field of obstetrics and gynecology, he was held to that degree of skill and knowledge ordinarily possessed by similar specialists.

As previously quoted, the trial court properly instructed the jury on the standard of care, as articulated in Shilkret, supra, to which the appellees were bound in performance of their duties. In formulating a standard in which the defendants’ conduct is to be measured against that of other “reasonably competent practitioner^] in the same class to which he belongs, acting in the same or similar circumstances,” (emphasis added), 276 Md. at 200, 349 A. 2d at 253, the Court in Shilkret specifically stated, “[T]here is no valid basis for distinguishing between general practitioners and specialists in applying standards of care.” Id. at 199, 349 A. 2d at 252. Judge Levine, speaking for the Court, noted that the standard as formulated took into account the fact of specialization or general practice. The trial court’s instruction in the instant appeal followed the rule mandated in Shilkret and, therefore, appellants’ request for an additional charge was properly rejected. See Aronstamn v. Coffey, 259 Md. 47, 267 A. 2d 741 (1970).

Judgment reversed; case remanded for a new trial; costs to be paid by appellees.

      . Mrs. Riffey's weight was 220 lbs. She was five feet, five inches tall and 21 years of age.

      . The critical importance or danger of thrombophlebitis, according to Dr. Roche, is the possibility that it will lead to the more serious pulmonary embolism. A pulmonary embolus is formed when the blood clot, thrombo, breaks free of the vein and enters the bloodstream as an embolus. A thromboembolus in the venous bloodstream travels to the heart and then to the lungs through the pulmonary arteries. Depending upon the size of the embolus, the condition may be fatal.

      . Heparin, according to appellees’ experts, works on the clotting process in order to prevent coagulation; dextran coats the walls of the vein with an opposite electrical charge to that of the blood platelets, thereby repulsing the particles and preventing stasis (pooling of the blood). Although the effect of the two drugs is very similar, in preventing further blood clotting, appellees’ experts stated at trial that one of the known contraindications of heparin is the fact that it promotes bleeding, by interfering with the clotting process. In Mrs. Riffey’s case, they stated, the use of heparin would not have been proper due to her post-operative condition and the fact that her surgical wounds had not yet healed.

      . As previously noted, appellees’ expert witnesses testified that one of the known contraindications of heparin is its propensity to promote bleeding. Dr. Roche’s testimony, above quoted, was apparently intended to negate any evidence that Mrs. Riffey was particularly vulnerable to bleeding.

      . The medical examiner’s autopsy report stated, “The pleural surfaces are smooth and glistening through.”

      . Judge Moylan wrote:
      “[‘Presumption’] connotes five very different things:
      1) a mere statement as to who has and what is the burden of persuasion (e.g., the presumption of innocence);
      2) a rule of substantive law (a conclusive presumption);
      3) a permitted inference of fact (e.g., the so-called “presumption” that the possessor of recently stolen goods is the thief;
      4) a presumption of law, or true presumption, in the Morgan tradition of shifting the burden of ultimate persuasion and entailing either a directed verdict or a jury instruction; and
      5) a presumption of law, or true presumption, in the Tnayer-Wigmore tradition of something which shifts only the burden of going forward with evidence and which totally dissipates or disappears from the case once that burden is met (the “bursting bubble” concept).” Evans, supra, 28 Md. App. at 676-77; 349 A. 2d at 324-25.

      . Appellees on appeal contend that any alleged error in failing to give these additional instructions is not properly preserved for our review because of the appellants’ failure to comply with Maryland Rule 554 a. The Rule provides that proposed instructions be given to the trial court “at the close of the evidence or at such earlier time. . . .” Our review of the record fails to disclose at what stage in the proceedings appellants proposed their “additional instructions.” We therefore are unable to evaluate appellees’ contention and we will consider the substance of the additional instructions requested.