text:
    KAREN M. ROSS v. JOHN H. HOFFMAN et ux.
    [No. 300,
    September Term, 1976.]

      Decided October 11, 1976.

    The cause was argued before Morton, Davidson and Lowe, JJ.

      Arm M. Turnbull for appellant.

      Ronald S. Landsman for appellees.
   Lowe, J.,

delivered the opinion of the Court.

We are called upon to review a Circuit Court of Baltimore City’s award of custody of a child to the appellees, who are consanguineously unrelated to the child, over the protest of her natural mother.

The child (Melinda) was born to Karen Ross (the appellant) on April 16,1967. Mrs. Ross was twenty-one years of age at the time. Inasmuch as financial necessity required her to work, she retained Mrs. Oneida Hoffman, one of the appellees, as a “babysitter”. Mrs. Ross’ schedule of night work created a difficult situation, for she had to deliver Melinda to the Hoffmans late at night and, after working all night, pick the child up by 7:00 o’clock in the morning. The obvious implication is that either Mrs. Ross received little or no rest or the child received proportionately little maternal attention. To overcome this fatiguing schedule Mrs. Ross, at Mrs. Hoffman’s suggestion, permitted the child to stay with the Hoffmans both day and night throughout the working week. Mrs. Ross would reassume her parental role by taking her child on weekends and her days off. The compensation paid by Mrs. Ross remained the same.

Although Mrs. Ross’ working shifts varied between 1967 and 1971, the custodial arrangement apparently did not. Furthermore, Mrs. Ross assumed a life style which, had she taken Melinda for longer than weekends and days off, would have been incompatible with the best interests of the child. The record indicates that she may not have maintained her regular contact with Melinda during this period. In addition to involvement with drugs, Mrs. Ross had several abortions. Presumably, however, because of the agreed custodial arrangement, Melinda was never exposed to these undesirable undertakings.

After 1971 it appeared that a reformation may have occurred in Mrs. Ross’ way of life. The trial judge found as a fact that she was no longer involved in her former dissolute ways and, indeed, expressly stated that she was now “a very fit and proper person.. .. she is emotionally sound and a healthy person to be a mother to this child.” Although we are not bound by the clearly erroneous rule, Md. Rule 1086, and may exercise our best judgment in determining whether the chancellor’s conclusion was the best one, Melton v. Connolly, 219 Md. 184, 188 (i.e., best for the welfare of the child), we must and do accept the factual findings and the chancellor’s view of the evidence if they are not clearly wrong. Sullivan v. Auslaender, 12 Md. App. 1, 5. There is neither indication nor allegation that any of the chancellor’s views of the evidence or findings of fact were clearly wrong, and we accept his finding as to Mrs. Ross’ reformation.

Mrs. Ross changed her employment on three occasions between 1971 and 1974, finally settling upon employment at a nursing home. Haply, she there met her present husband whom she married on July 12, 1975. The present action was brought about soon thereafter when the Rosses, having taken Melinda for the Labor Day weekend, returned her to the Hoffmans only when the Hoffmans obtained a court order directing the return of Melinda to them. The court has, by order, since controlled further visitation by the Rosses. The case comes to us upon appeal of an order of the court below granting permanent custody to the Hoffmans with liberal visitation privileges to Mrs. Ross, and directing the continued payment of $20.00 per week child support.

Appellant relies heavily upon Powers v. Hadden, 30 Md. App. 577, decided on March 24, 1976. In Powers this Court reasserted as still viable the presumption, repeated frequently if not recently by the Court of Appeals, that a child’s welfare will be best served in the custody of the natural parents rather than in the custody of others. Id. at 581. Although this presumption was argued to the chancellor, Powers had not been published by the time the chancellor rendered his opinion, and appellant contends that his decision was predicated upon the erroneous assumption that the natural parent presumption had atrophied by disuse. For that reason, contends appellant, the chancellor did not place a sufficient burden upon the Hoffmans to overcome the presumption.

We find no such erroneous assumption in the chancellor’s opinion. The chancellor cited many of the cases upon which we relied in Powers, and expressly recognized that the Hoffmans had the burden of overcoming the natural parent presumption. He then stated:

“In that context, I have analyzed the facts of this case, and I have concluded that Mrs. Hoffman has overcome that burden.”

Appellant then argues that the chancellor erred in concluding that the presumption was overcome, and that he erroneously relied upon the theory of “psychological parenthood.” We do not agree with either contention. The chancellor reviewed at great length the facts and testimony upon which he relied in deciding that the natural parent presumption had been overcome. He was particularly influenced by the testimony of a psychologist and by his own observations of the parties. He attached far less weight to the opinion of the adoption and custody investigator who was concededly new at her job. We find the chancellor’s factual analysis detailed and convincing.

After reviewing the evidence adduced by the parties, the chancellor explained that his reasoning had, to some extent, been influenced by certain educational background factors to which he had been exposed extra-judicially, as that term applies to the evidentiary confines of this case. He said:

“Now, very briefly, there is a book out, which is widely read, by three very well respected professional doctors, Drs. Goldstein, Freud and Solnick, called ‘Beyond the Best Interest of the Child,’ and in that book they point out that whether any adult becomes a psychological parent over the child is based upon a day-to-day interaction, companionship and shared experiences. And if you look at it from that view, Mrs. Hoffman has had this advantage. She was the day-to-day person while Mrs. Ross, from Mrs. Ross’ own testimony, she would go once or twice a week, and I believe Mrs. Hoffman when she said there were long periods of time, particularly during the 69-70 period where there were long periods of absences, and they say this role can be fulfilled by the psychological parent or by adopted parents or by any other caring adult, but never by absolute inactive adults, but everyday biological, whatever the relationship may be, and that they further say whatever beneficial qualities the psychological parent may offer the child to be is a wanted and needed member in a family structure, and I find that to be true in the Hoffman home.
Further, there is something I use admittedly, I think it is from the Family Law Report on Child Custody Conciliation, but it is the language I have adopted in these cases. They talk about mothering the young child. They said the word ‘mothering’ denoting function rather than a person. The function does not reside in the biological mother. There are tens of thousands of babies that have been reared in successful foster homes or adoptive parents or grandparents or aunts or professional representations over the notion that the biological mother is unfailingly most competent in the functioning of mothering. Many other kinds of evidence also tends to the same direction. For example, the unwanted pregnancy, therefore, unwanted children who suffer from rejecting parents. There is also wide public opinion in the increasing amount of children suffering from the beaten child syndrome, most of whom are victims of their biological parents, so biological parents reject the children just as well.
Then, they say, this article quotes from the age of six to twelve that the — that is the age of Melinda — the psychological and personality traits begin. In that period a sense of family and home and a sense of security and safety greatly influences the psychological development of a child. At this age, here again, the biological parents are not crucial. It is the adults within the home of the child, that is, stepparents, foster parents, grandparents, with whom the child can interact meaningfully, and I repeat that, to whom the child can interact meaningfully without unnecessarily fear of rejection or hostility, suppression or misunderstanding, and I think that is what Dr. Derivan had in mind, why risk it, because we know what this child can do in the home of the Hoffmans. She is well-developed and healthy, and if we change the custody, we are not sure whether Mrs. Ross and her new husband and this child can interact meaningfully with her. What the relationship with the child would be with Mrs. Ross, and the Court feels, as Dr. Derivan feels, maybe we shouldn’t risk this at this time.”

We find no error in the fact that a trial judge continues his general education by reading, or that his reasoning is influenced by such education or by his experiences during his lifetime. To expect either judge or juror to erase from memory all that he has read or experienced, not specifically related to the facts of a case, before deciding a case is an absurdity so apparent as to deserve no rebuttal. Error would result when the reasoning was obviously distorted, but not when sound reasoning is influenced by prior experience or education. The soundness of the chancellor’s reasoning here is apparent from the excerpt of his opinion. We do not find that he gave undue weight to that particular underpinning of his reasoning. Rather, we commend him both for recognizing and expressing that which helped him to decide.

Appellant then argues that our recent opinion in Powers v. Hadden requires us to apply the natural parent presumption rigorously and find that, on the facts of this case, the appellees could not have overcome the presumption. But our careful review of the record convinces us that Powers militates far more heavily against, than for, appellant.

Perhaps appellant’s misinterpretation of Powers lies in the sense of rigidity, if not conclusiveness, with which the term “presumption” is viewed. Too often those skilled at law treat all presumptions as decisive irrespective of the evidence, and fail to recognize that for the most part they are merely guidelines by which to reason, conclusive only in the absence of evidence to the contrary and are aught but one more auncel weight in the judicial balance. In the natural parent context it is nothing more than a burden-placing device. It puts the burden of persuasion on the non-biological “parent” and is overcome when sufficient evidence is introduced and believed by the trier of fact to convince him that the child’s best interest will be served by one other than a natural parent.

When this is accomplished below and appeal is brought here, we are faced with a sometime conflicting presumption. On the one hand, as expressed in Auslaender, supra, we must exercise our best judgment in deciding which party will promote the child’s welfare most expediently. But because of the chancellor’s proximity to the parties, he is presumed correct and wé will not disturb his findings unless there is some sound reason to do so. Indeed, we concluded the Powers case with just such an admonition:

“While we recognize that our review of custody awards is not confined by the ‘clearly erroneous rule’, Sullivan v. Auslaender, 12 Md. App. 1, 3-4, neither should we be oblivious to the fact that the chancellor had the opportunity to view each witness’s demeanor, hear their expressive intonations, and to judge them — to some degree — on their deportment and attitude while testifying. We, on the contrary, are limited to the printed words of a cold record,
‘Ordinarily the court or judge who has had the parties before him, has the best opportunity to observe their temper, temperament, and demeanor, and so decide what would be for the child’s best interest, and unless there is some sound reason to the contrary his findings ought not to be disturbed.’ Piotrowski v. State, 179 Md. at 381.”
Powers v. Hadden, 30 Md. App. at 588.

Our review of the record in this case finds the chancellor’s analysis sound and his conclusion reasonable. As noted above, had Powers been available to him, the reasoning therein would have added to, rather than detracted from, his conclusion.

We stated in Powers that the opinions of the Court of Appeals indicated that:

“When custody is denied a natural parent, that denial inevitably results from custodial unfitness amounting to forfeiture, as by failing to support the child, Dietrich v. Anderson, 185 Md. 103, 116,
‘.. . or where some exceptional circumstances render such custody detrimental to the best interests of the child.’ Ross v. Pick, 199 Md. [341] at 351; Trenton v. Christ, 216 Md. [418] at 420. (Emphasis added).” Powers, 30 Md. App. at 584.

We then pointed out that a long period of separation could serve to rebut the presumptive preference for the natural parent, and while it does not require that custody be denied a natural parent, it places both parent and surrogate on an even keel..

Applying that principle here, we note that while Mrs. Ross frequently visited Melinda, she substantially abandoned her physical parental role for the entire 9 year life of her child. Without judging the merits of the decision made by Mrs. Ross in thus ordering her priorities, we further note that this was in the nature of a voluntary surrender of custody as opposed to the court-compelled surrender of custody in Powers, Voluntary surrender, as we noted in Powers, “has been given substantial weight as an element of forfeiture in these T Court of Appeals] cases,” id. at 585.

Although recognizing that necessity appears to have brought about the initial week-long separations, we cannot overlook the period of intentional mental abandonment between 1967 and 1971. During this time Melinda’s interests were overtly subjugated by Mrs. Ross to her own personal gratifications. These were the beginning and major portion of the most sensitive formative years of Melinda’s life, during which Mrs. Ross’ physical and psychological absence jeopardized her child’s best interest. We do not and, indeed, cannot fix a period for which a parent may fulfill a hedonistic desire, casting off the robe of parental responsibility both inwardly and outwardly, before forfeiting the judicially espoused presumptive shield provided a natural parent. It is sufficient to hold that on the facts of this case, appellant has overstayed any period of amnesty for which she might expect judicial absolution in the preservation of her presumptive parental right. We further note that but for the Hoffmans the child would have been practically parentless during that episode.

Finally, we find Judge Watts’ reasoning especially convincing in his attempt to eliminate the element of chance from Melinda’s immediate future. He pointed out that the past 9 years experience have seen Melinda thrive in the stability of the Hoffman home, giving an assurance of what that relationship would provide if continued. On the other hand, while holding that the Rosses at present appear to be fit and proper parents, it can at best be supposed that Melinda will overcome the trauma of a changed environment, adjust to a new life and be provided similar guidance by her new custodians, whose marriage itself has not yet undergone the tests of adversity. Supposition for the future, without more, must give way to an assurance from the past, when prognosticating a child’s future best interests. We find that reasoning most convincing and so has the Court of Appeals which said in McCabe v. McCabe, 218 Md. 378, 383, that we must look to the past in assessing the future.

We are in full agreement with Judge Watts’ concluding observations:

“The only reason Mrs. Ross has presented this is that she is the natural mother, and I say that is not significant, and we view it with the best interest of the child, and it would seem to be compelling from her point as contrasted with Mrs. Hoffman, but from the child’s point of view it is not so significant, especially if the evidence points out she has established, and she realizes she is in a loving atmosphere where she remains with Mrs. Hoffman. She is in a loving atmosphere when she has contact, and a lot of contact with the mother and grandparents, this I am sure she will have. If you leave it with the Hoffmans, as I said, and I am not so sure we will have it if we change the custody and give it to Mrs. Ross. I said that is primarily because the marriage is new with Mrs. Ross. She has got her own growing up to do in terms of the marriage. The first two years of marriage are very crucial. If we thrust this child into that milieu at this time, it might be damaging to the child, and I think that is what Dr. Derivan meant that we can’t risk that. At the same time, I say she can reform, and she is a fit and proper mother; therefore, she will have fairly regular visitation with the child. I don’t feel at this time we should thrust this child into the new environment and take her out of the love and environment she has.”

Neither the result here nor anything written in our opinion should be construed so as to strike fear in the heart of parents who utilize day care facilities. Nor should paid custodians of children, left with them by parents who are by necessity forced to resolve many conflicting priorities, be entitled to a possessory deference in custodial contests. Children are not chattels, and doctrines such as adverse possession, however semantically regaled, do not apply to children. This case is — as most custody cases should be — limited to its facts and persuasive as precedent only to the extent that its reasoning is sound.

If it were not apparent heretofore from the plethora of seemingly contradictory custody cases among our appellate reports, it should now be clear that appellate courts have not and do not intend to provide rigid precedential formulae in custody cases which lawyers may with ease apply to a client’s factual circumstance. We do not write in this area for the convenience of counsel. Rather, we explain as best we can the result at which we have arrived for the best interest of each child in each case.

The unimaginable multitude of human vagaries in each of us, multiplied by 3 (the contesting parties and the child) provide some insight into why cases with superficially similar facts do not always reach the same result. They also help explain the emphasis we place upon the chancellor’s opportunity to evaluate the parties and their relationships to the child. That we do not adhere undeviatingly to the rigidity of a legal or scientific formula, emphasizes, rather than demeans, the care with which we approach review of these cases. While fully recognizing, and to some degree deferring to, the vantage point from which a chancellor can view the proceedings, we even hesitate to trust his judgment absolutely with so precious a responsibility. Our standard of review is not as in other judicially decided cases — was he clearly erroneous (Md. Rule 1086); it is enough to find that he was merely mistaken. See Auslaender, supra.

We find no such error here.

Judgment affirmed.

Costs to be paid by appellant.

      . Mrs. Hoffman is joined by her husband as appellees here and parties plaintiff below.

      . There is also contradictory testimony relating to whether the sitter’s fees were fully paid with regularity during this period.

      . There is irony, if not an aura of injustice, in an order denying a natural mother her child, then compelling payment to those who have taken her. But the issue was not raised here or below and, therefore, we do not respond to it, Md. Rule 1085, nor do we presume by our observation to preview our opinion if and when it ever comes before us. Presumably, the mother is willing to assist in the support of her child for the child’s benefit.

      . Precedentially, we find the facts of Piotrowski v. State, 179 Md. 377 far more akin to the facts here than are these facts related to those in Powers. We described these facts in Powers v. Hadden, supra, 30 Md. App. at 586:
      “In Piotrowski v. State, 179 Md. 377, the Court of Appeals continued custody of an eight year old girl in the maternal grandparents who had kept the child since she was four months old. The holding in this case is more precedentially persuasive of the proposition that the time away from the natural parent should overcome the parental presumption since it appears to have been the controlling factor in the court’s determination. The father and his wife, whom he married after the child’s mother died during the child’s infancy, were ‘well behaved, industrious, law abiding people’ as were the grandparents who had custody. Without expressly so stating, the Court seemed to have decided to continue custody in the grandparents because it was doubtful that a change in custody would improve the child’s environment and that, due to the substantial time away from her father, it was possible that it would be detrimental to her. That period of time, however, was nearly eight years, running continuously from infancy to the date of trial. Once again the voluntary surrender of custody was a factor which was also considered by the Court.”


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    HARRY EDWARD RIGGLEMAN, SR. v. STATE OF MARYLAND
    [No. 1284,
    September Term, 1975.]

      Decided October 19, 1976.

      The cause was argued before Men chine, Lowe and Melvin, JJ.

      Leslie J. Clark, Assigned Public Defender, for appellant.

      Bernard A. Raum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Lawrence V. Kelly, State’s Attorney for Allegany County, and Robert W. Hamilton, Assistant State’s Attorney for Allegany County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On November 14, 1975, the appellant, Harry Edward Riggleman, Sr., was brought to trial before a jury in the Circuit Court for Allegany County on a two-count criminal information charging him with larceny of two automobiles. He was found guilty on each count and received a three year sentence on each count, to be served consecutively. He seeks reversal of the judgments of conviction on three grounds. Because we shall reverse the judgments of conviction and remand the case for a new trial we need only consider two: 1) the sufficiency of the evidence, and 2) the propriety of the court’s action in striking appellant’s insanity plea.

Sufficiency of the Evidence

The evidence was clearly sufficient to support the convictions. Appellant’s statements to a State Trooper that he did indeed steal the automobiles were received in evidence without objection. There was ample corroboration of the corpus delicti.

The Plea of Insanity

The criminal information was filed on June 26, 1975. When appellant was arraigned on July 2,1975, he filed as his only plea the following written “Plea of Insanity”:

“For pleas to the informations [sic] in the above cases [sic], the defendant, Harry E. Riggleman, pursuant to Article 59, Section 23 of the Annotated Code of Maryland, alleges that he was insane at the time of the commission of the alleged crimes”. (Emphasis added.)

On the same date, July 2, 1975, the court signed an order (obviously submitted by appellant’s counsel) committing appellant “to Springfield State Hospital. . . for the purpose of undergoing a complete psychiatric examination and evaluation by the medical staff of said hospital”. It was further ordered “that a complete psychiatric report will be prepared by said medical staff from the basis of said examination and evaluation in accordance with the provisions of Article 59, Section 23 of the Annotated Code of Maryland.” (Emphasis added.)

Under the judge’s signature on the order appears this handwritten statement: “This man is a high security risk. Please take proper precautions to detain him”. As the judge later remarked, “. . . [N]o such precautions were apparently taken”.

On November 5, 1975, the State filed a “Motion for Appropriate Relief’ asking the court to “dismiss the Insanity plea” or in the alternative to “grant that relief which the Court deems appropriate in the premises”. The motion alleged the following:

“1. On June 5, 1975, HARRY EDWARD RIGGLEMAN, SR., hereinafter referred to as Defendant, was arrested and charged with two counts of larceny of motor vehicle. On or about June 26, 1975, following a preliminary hearing, an information charging said offenses was filed in this Honorable Court.
2. On July 2, 1975, the Defendant was arraigned and entered pleas of insanity in these cases. On the same dates, the Court signed an order committing the Defendant to Springfield State Hospital for examination and report (the State Department of Health and Mental Hygiene having indicated the examination had to be conducted there). On July 3, 1975, the Defendant was transported to Springfield Hospital for psychiatric examination. On or about July 4, 1975, the Defendant escaped from the hospital. On August 16, 1975, the Defendant was returned to Springfield by a police officer. On August 18, 1975, the Defendant fled, having escaped for the second time. Due to the Defendant’s having removed himself, no examination was conducted. On or about September 18, 1975, the Defendant was apprehended by Pennsylvania authorities and incarcerated in the Somerset County, Pennsylvania, Jail. The Defendant refused to waive extradition unless the State agreed to return him to Springfield State Hospital which the State declined to do, and was returned to this jurisdiction on October 14, 1975, following an extradition hearing in Pennsylvania.
3. The State has attempted, without success at this time, to arrange a psychiatric examination in Allegany County by a private psychiatrist who would be paid by the State.
4. At no time has the Defendant adduced any evidence which would provide a basis for an insanity plea. The State alleges the plea in this case is frivolous, being without any factual basis, and is pursued for the purpose of delay or further escape. This case has been scheduled for trial in this Honorable Court on November 14,1975.
WHEREFORE, your Petitioner prays the Court to conduct a hearing and grant the appropriate relief requested.”

On November 5, 1975, a copy of the motion was served on appellant at the Allegany County jail and a copy mailed to his counsel. A hearing on the motion was held two days later on November 7. At the hearing, the State’s Attorney recited to the court the allegations in the motion and announced that appellant’s counsel had “indicated that . . . the Defendant agrees ... to the chronology when he was taken to Springfield, when he left, when he returned and when he left again. The other matters that we allege . . . are matters of record with regard to the placing of the charges”. He concluded his opening remarks by saying, “I have no particular evidence that we would adduce at this time. We do have law that we would like to bring to the Court’s attention”. At this point, appellant’s counsel said to the court:

“MR. SCHINDLER: If Your Honor please, the Defendant is still claiming and wants to maintain his plea of not guilty by reason of insanity. And my information from the Defendant at this time is that Dr. Franklin was supposed to have examined him yesterday. The date for the examination has been postponed until Monday.
BY THE COURT: Doctor who?
MR. SCHINDLER: Franklin. I would like to request Your Honor’s permission .... I feel that I ought to have the Defendant on the witness stand and ask him some questions as to why he wants to maintain his plea of insanity and so forth. The Defense feels, counsel feels that we should be accorded the right to have the Defendant take the witness stand and answer various questions.
BY THE COURT: All right.”

In his testimony, appellant denied the allegation that he “refused to waive extradition unless the State agreed to return him to Springfield”, saying that he only “told them I would not come back to Maryland”. He also testified that he had an appointment with Dr. Franklin on November 10; that Dr. Franklin, who he said was “an ear, nose and throat specialist”, had told him that he had “an abcess down under the ear drum, the inner ear drum, that puts pressure on the brain” and that was why he filed his plea of insanity; that he had “been in the hospital for blacking out spells”; that he has had nine “blackout spells” since 1974; and that he escaped from Springfield because he “was more or less afraid that they would go cutting on me down there”.

It appears that when appellant was returned to Maryland on October 14, 1975, following his second escape on August 18, 1975, he was not returned to Springfield State Hospital, but to the Allegany County jail. There is nothing in the record authorizing his transfer from the hospital to the jail. Presumably the State did not wish him to return to Springfield for fear he might again escape. The court asked the State’s Attorney, “Would it be feasible or possible to have the Defendant examined by a local psychiatrist in custody here, Mr. Kelly?” Mr. Kelly (the State’s Attorney for Allegany County) answered:

“I might say with regard to that, Your Honor, that the State has been working for approximately two months, not generally with Mr. Riggleman’s case, although this points out dramatically the failure in our whole — in the structure of things. That is, committing people to Springfield. We’ve had I believe this year five individuals committed, of which four have escaped, Mr. Riggleman being one. I have attempted to do that. At this point we have no psychiatrists that will agree to that. I’m hopeful that in the future, the immediate future hopefully, that we will be in such position.
But, frankly, Your Honor, we would in Mr. Riggleman’s case rely simply on the fact that his case has been handled as cases since the beginning of time in Allegany County. And, frankly, while we’re willing to change the system generally, I’m not particularly willing to change the system to meet Mr. Riggleman’s particular situation. And we would rely on the state of the case as it presently is. Although, frankly, we hope in a month or so to be in a position where we can conduct our own mental examinations here in Allegany County rather than to rely on the Department of Health and Mental Hygiene. But at this time that simply isn’t true, Your Honor.”

At the conclusion of the hearing, the hearing judge granted the motion to strike, giving as his reasons: 1) The “only purpose of [appellant’s] seeking confinement at Springfield is for the purpose of evading and avoiding the trial on the merits, and that the Defendant doesn’t sincerely and genuinely seek any psychiatric examination and evaluation to determine his mental condition”; 2) “. . . [T]he statement that he’s been seeing an ear, nose and throat specialist who says he has some kind of difficulty with his inner ear would not be evidence on which any plea of insanity could be accepted. It has to be by psychiatric evaluation”; and 3) “I think the Defendant is merely attempting to evade and avoid trial on the merits”.

The appellant was then re-arraigned. He was asked by the clerk, “What is your plea guilty or not guilty? ” He answered, “Not guilty” and elected a jury trial.

Before determining the correctness of striking the appellant’s insanity plea, it should be helpful to briefly review the nature of an insanity plea and the procedures to be followed when such a plea is filed.

Md. Rule 720 provides that an accused “may plead . . . not guilty by reason of insanity as provided by statute . . . .” The subsequent adoption of Md. Code Art. 59, § 25 (b) (formerly § 9 (b)) designates the plea as to insanity as a “plea in writing in addition to the plea or pleas otherwise required or permitted by law, alleging that the defendant was insane at the time of the commission of the alleged crime” and requires that such a plea be filed “[w]hen it is desired to interpose the defense of insanity”. The court may not refuse to accept the plea, and once filed, may not strike it out — any more than the court could strike out a not guilty plea. Indeed, once an insanity plea is filed, both trial counsel and the court have a responsibility to see that it is not improvidently withdrawn, even at the request of an accused. See Walker v. State, 21 Md. App. 666 (1974) and White v. State, 17 Md. App. 58 (1973). As pointed out by this Court in White v. State, supra, at 61-62:

“ . . . [A] plea of insanity is no more than the assertion of an affirmative defense. The defense is not any different in its basic nature than other affirmative defenses, such as self-defense or coercion .... Like any defense, the question of whether an insanity defense should be raised remains a matter of trial strategy to be determined by counsel after consultation with his client”.

Article 59, § 25 (b) of the Code specifies how and when the defense of insanity is to be raised and the procedural consequences that follow:

“ . . . The judge of the court in which such warrant, indictment or information is pending and in which such plea of insanity has been entered shall have full power and authority to order an examination of the mental condition of such person by the Department of Mental Hygiene, subject to the provisions of § 26 of this article. At the trial of any case where there has been theretofore filed a plea of insanity at the time of the commission of the crime, the court shall direct the jury to render a special verdict on the sanity of the defendant at the time of the alleged crime. No such verdict as to insanity of the defendant at the time of the alleged crime shall be directed or accepted unless a plea in writing alleging that the defendant was insane at the time of the commission of the alleged crime shall have been filed by the defendant or his counsel.” (Emphasis added.)

In Strawderman v. State, 4 Md. App. 689, 697-698 (1968), we filled in the statutory gaps insofar as the correct procedure to be followed at trial is concerned. We pointed out: 1) that a person is “presumed to have been responsible for criminal conduct and sane at the time of such conduct until, after the filing of a proper plea, there is adduced proof that he lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law as a result of mental disease or defect . . . sufficient to raise a doubt as to his sanity as defined in the minds of reasonable men”; and 2) “when there has been offered proof of insanity so defined sufficient to overcome the initial presumption of sanity of the accused the State must prove sanity, as well as the other elements of the offense, charged beyond a reasonable doubt”. The opinion by Judge Orth (later Chief Judge of this Court and now Associate Judge of the Court of Appeals) went on, at 698:

“So when a plea has been filed in writing alleging that the accused was insane at the time of the commission of the alleged crime, the court should determine preliminarily whether the proof adduced in support thereof is sufficient to raise a doubt as to the sanity of the accused, as defined, in the minds of reasonable men. If it finds that it is not, the State has no further burden with respect thereto and, in a jury trial, the question is not submitted to the jury. If the court finds that the proof adduced was sufficient to surmount the threshold question of doubt as to the accused’s responsibility, the State has the burden of convincing the trier of facts that the accused was sane, and, in a jury trial, evidence on the issue should then be introduced before the jury with proper instructions.”

With this background, we turn to the propriety of the court’s action in striking the insanity plea. The State’s “Motion for Appropriate Relief’ concluded with a prayer to the court “to conduct a hearing and grant the appropriate relief requested”. At the hearing, the only “relief requested” or even suggested was to strike the plea of insanity. We know of no law, rule, or procedure in this state that permits a court to strike a properly entered insanity plea. With respect to such a plea, the most that a court can do is to rule preliminarily whether the issue of insanity raised by the plea should be considered by the trier of fact pursuant to the guidelines set forth in Strawderman, supra. Even when the court determines under those guidelines that the issue of insanity should not be submitted to the trier of fact, the plea is not stricken; rather, the issue of insanity is simply not submitted to the trier of fact and the trial proceeds as if no insanity plea had been filed.

In this appeal, however, the appellant does not argue the propriety, vel non, of the court’s action in striking his plea of insanity. Nor does he argue here the procedural propriety of a Strawderman type hearing prior to trial on the merits. As we understand the appellant’s argument concerning the court’s action, it is two-fold. First, he contends that he presented enough evidence at the hearing to raise a reasonable doubt as to his sanity and thereby place the burden upon the State to prove at trial his sanity beyond a reasonable doubt. Second, he contends that the court erred in its implicit ruling that he had by escaping forfeited his right to a psychiatric examination at State expense.

Appellant’s first contention is without merit and needs little discussion. Proof sufficient to raise a doubt in the minds of reasonable men as to an accused’s sanity can only be adduced through competent medical evidence to the positive effect that the accused, as a result of mental disorder, lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. No such evidence was presented at the hearing. See Millard v. State, 8 Md. App. 419 (1970); Greenleaf v. State, 7 Md. App. 575 (1969); Saul v. State, 6 Md. App. 540 (1969).

Appellant’s second contention has merit. We hold that on the evidence before him, the hearing judge was clearly erroneous in his implicit ruling that appellant had forfeited his right to a free psychiatric examination. As the moving party, it was incumbent upon the State to present evidence to support such a ruling. The only evidence presented by the State was “the matters of record with regard to the placing of the charges” and the undisputed fact that appellant escaped from Springfield on two occasions.

It is true that when an accused files an insanity plea he is under a legal obligation to submit to an examination by the State’s psychiatrist, Bremer v. State, 18 Md. App. 291 (1973), because as pointed out in Bremer, at 316, “where he has pleaded insanity as a defense and presented evidence to meet the threshold question, the maintenance of a ‘fair state-individual balance’ requires that the State be permitted to have him examined”. In this case, however, there is no evidence that the appellant has ever refused to be examined by a psychiatrist. The thrust of the State’s motion was not that the State had been unable to obtain evidence to combat any threshold evidence of insanity that appellant might produce at trial, but that he had, by escaping from Springfield State Hospital, failed to take advantage of the opportunity to obtain at State expense any “threshold evidence” at all and should therefore be deprived of the opportunity thenceforward from doing so. In other words, the appellant by escaping had forfeited his right to an examination at State expense and since, at the time of the hearing, he produced insufficient threshold evidence of insanity, his plea should be stricken.

There is no doubt that when appellant escaped from the place he had been sent for the sole purpose of obtaining evidence that might have supported his plea of insanity, he could not later complain that he had been denied the right to obtain such evidence if it is shown that because of the escape no examination could be conducted. Whether a forfeiture has occurred depends upon the facts and circumstances in each case. The fact of the escapes is one important factor, but it is not determinative of the issue. Here, the appellant was returned from his second escape to the Allegany County Jail on October 14, 1975. At that time, the order committing him to Springfield Hospital for examination was still in effect. As already mentioned, there is nothing in the record authorizing his transfer from Springfield Hospital to the jail. Nor is there any record evidence that had he been returned to the hospital, an examination could not have been completed. No one from the hospital testified at the hearing and there is no evidence of what, if any, precautions the hospital took or could have taken to detain him as requested by the judge. Nor is there any evidence that the appellant has ever refused to be examined by a psychiatrist. The State’s contention that the appellant’s only reason for filing an insanity plea was so that he could be sent to Springfield and escape is unsupported by the evidence. There is no evidence that prior to his first brief visit there he was aware of the poor security. The appellant’s reason for escaping (“I was more or less afraid that they would go cutting on me down there”) may not appear to be a rational one. It would be a legal “Catch-22”, however, to hold that before a person is entitled to seek evidence of his insanity he must act rationally, or to hold that, because an indigent defendant who has filed an insanity plea acts irrationally, the State is relieved of its duty to provide him a psychiatric evaluation.

Here, in spite of appellant’s escapes, we think more should have been done to see that the court order of July 2, 1975, requiring “a complete psychiatric examination and evaluation” was carried out. The State, knowing of the sieve-like security conditions that apparently prevailed at Springfield Hospital, could have petitioned the court to have appellant examined at a more secure State institution, such as Clifton T. Perkins Hospital. Also, we think that the hearing judge, upon being informed at the hearing that the appellant “is still claiming and wants to maintain his plea”, could have and should have taken measures to see that an examination be conducted.

Furthermore, as already indicated, we hold that it was error for the hearing judge to strike the insanity plea. Striking the plea prevented the appellant from ever offering to the court, or at trial, any evidence of his insanity at the time of the commission of the crimes charged; for the statute provides that without such a plea, “[n]o . . . verdict as to insanity of the defendant at the time of the alleged crime shall be directed or accepted . . . .” We cannot speculate whether the appellant could have obtained any such evidence from a source other than that provided by the State. Under the circumstances, even an attempt to do so would have been futile, for, even if obtained, without the requisite plea the evidence would have been all but useless to him.

Judgments reversed; case remanded for new trial.

Costs to be paid by Allegany County.

      . We observe that since “Section 23” of Code Article 59 has nothing whatever to do with responsibility for criminal conduct, but § 25 does, it is manifest that appellant’s counsel failed to cite the correct section of the Code. Section 23 sets forth the procedure to be followed when a defendant is believed to be incompetent to stand trial, an issue not raised by the appellant in this case.

      . Thus there is no longer a plea of “not guilty by reason of insanity”. Sweeney v. State, 6 Md. App. 431, 439, note 7.

      . By Chapter 407, Acts of 1970, the phrase “mental disease or defect” was replaced with the phrase “mental disorder”.

      . At the hearing the State’s Attorney told the judge that he had looked but found no “out of State authority” and “no Maryland authority on this exact point”.

      . As an indigent defendant, appellant’s right to a psychiatric examination at State expense is clearly established. Swanson v. State, 9 Md. App. 594; Bremer v. State, 18 Md. App. 291.

      . In the World War II novel Catch-22 (Joseph Heller, Simon & Schuster 1961), the protagonist Yossarian was trying to have himself grounded from flying further tombing missions. He told the military psychiatrist that he was afraid that people were trying to kill him. The psychiatrist told Yossarian that his fears were rational and that if he didn’t think the way he did he could be grounded. “Catch-22” was that anyone who wanted to be grounded was sane and had to keep flying and anyone who wanted to keep flying could be grounded because he was irrational. However, as soon as one asked to be grounded he demonstrated that he was sane and therefore had to keep flying.


author: Gilbert, C. J.,

text:
    WILLIAM BRYANT and JERRY HORNE v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES
    [No. 229,
    September Term, 1976.]

      Decided November 1, 1976.

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

      Michael A. Millemann, with whom was Michael S. Elder on the brief, for appellants.

      H. Edgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W. Sharp, Assistant Attorney General, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Fifty or even fewer years ago this case would never have arisen. It is only since the courts have been thrust into the business of overseeing the penal institutions that the type of litigation now before us has come to the fore, but, “[t]o everything there is a season, and a time to every purpose under the heaven.” Ecclesiastes 3:1. This is the season and the time for judicial airing of inmate grievances.

Apparently, in response to the then prevailing practice of inmates of the Maryland penal institutions to seek redress in federal courts for real or imagined wrongs suffered by the inmate in the institutions of this State, the Legislature, by Laws 1971, ch. 210, heeded the “cries and lamentations of the prisoners” and established the Inmate Grievance Commission.

The Commission is charged, under the statute, with the responsibility of hearing and disposing of inmate grievances or complaints. Md. Ann. Code art. 41, § 204F (f). The statute also provides for a preliminary review by “the Commission, or any member thereof or the executive director ...” if the Commission’s rules so allow. Md. Ann. Code art. 41, § 204 (e). When the reviewing Commissioners, Commissioner, or executive director determine the grievance or complaint to be wholly devoid of merit “on its face,” they may dismiss the matter “without a hearing or without specific findings of fact.” On the other hand, should it be determined, after preliminary review, that the grievance or complaint is not “on its face wholly lacking in merit,” the Commission shall hold a hearing. A record, including the testimony presented, is kept of the proceedings. The Commission may, after hearing, dismiss the complaint, and the dismissal acts as “the final decision of the Secretary of Public Safety and Correctional Services for purposes of any judicial review.” Md. Ann. Code art. 41, § 204F (f) (1). If, however, the Commission finds that the inmate’s complaint is meritorious either in whole or in part, it shall promptly forward its findings and recommendations to the departmental secretary. The Secretary, within fifteen (15) days of receipt of the order of the Commission, “shall affirm ... or shall reverse or modify the order where he disagrees with the findings and conclusions of the Commission.” Md. Ann. Code art. 41, § 204F (f) (2). The Secretary, if he agrees with the Commission, is under duty to direct the implementation of the Commission’s recommendations through the appropriate officials. Conversely, a reversal by the Secretary negates the Commission’s finding. In any event, the Secretary’s “order shall constitute the final decision for purposes of judicial review.” Id.

After exhausting his administrative remedies, the inmate is entitled to a judicial review of the “final decision” entered in his complaint proceeding. The review shall be by the circuit court of the county in which the penal institution is situated (where the inmate is confined). Md. Ann. Code art. 41, § 204F (1).

The appellants, William Bryant and Jerry Horne, followed the procedure set out in the statute and eventually had a hearing in the Baltimore City Court. The court affirmed the order of the Secretary and the appellants petitioned the Court of Appeals for certiorari. The Court of Appeals directed that petition for certiorari “be considered as an appeal to” this Court.

The Attorney General has moved to dismiss the appeal on the ground that no appeal is authorized by law. The reasoning behind the motion to dismiss is that Md. Ann. Code art. 41, § 204F (1) provides in pertinent part:

“ ... Review by the court shall be limited to a review of the record of the proceedings before the Commission and the Secretary’s order, if any, pursuant to such proceedings. The court’s review shall be limited to a determination of whether there was a violation of any right of the inmate protected by federal or State laws or constitutional requirements.”

The State reads the above quoted section of the code as not containing “any authority for a further appeal from the decision of the Circuit Court or the Baltimore City Court.” Patently, then, the threshold issue before us is whether inmates aggrieved by final decisions of the Secretary of Public Safety and Correctional Services may pursue judicial review past the circuit court level.

Md. Ann. Code art. 41, § 204F (a) provides in pertinent part that, “[t]he Inmate Grievance Commission is established as a separate agency within the Department of Public Safety and Correctional Services. ” (Emphasis supplied.) The appellants argue, and we agree, that the italicized language of the statute places the Inmate Grievance Commission within the definition of a State agency as that term is defined by the Maryland Administrative Procedure Act, Md. Ann. Code art. 41, §§ 244-256A. At the time this case was decided by the Baltimore City Court, § 244 of the Administrative Procedure Act provided:

“For the purpose of this subtitle:
(a) ‘Agency’ means any State board, commission, department or officer authorized by law to make rules or to adjudicate contested cases, except those in the legislative or judicial branches, and except the Board of Parole, the Department of Parole and Probation, the Workmen’s Compensation Commission, the State Accident Fund, the State Insurance Department of Maryland, the Public Service Commission, the Employment Security Board and the State Tax Commission.”

Not only is the Inmate Grievance Commission “authorized by law to make rules or to adjudicate contested cases,” Md. Ann. Code art. 41, § 244 (a), but the latter phrase appears to be one of the prime purposes for the creation of the Commission in the first instance. State v. McCray, 267 Md. 111, 297 A. 2d 265 (1972). See Md. Ann. Code art. 41, § 204F, subsections (f) and (k). Although it is true that Md. Ann. Code art. 41, § 204F (1) does not specifically authorize an appeal to this Court from an adverse ruling by a circuit court or the Baltimore City Court, neither that subsection of the article nor the article itself is an island standing alone without regard to other applicable laws. Md. Ann. Code art. 41, § § 244-256A and 204F must be read together. When so read, it is beyond dispute that any party aggrieved by a decision of a circuit court or the Baltimore City Court exercising judicial review of the Secretary’s order may appeal to this Court.* **

Having successfully crossed the threshold and entered through the portal of appealability, we are now confronted with the second aspect of this appeal, videlicet, whether the hearing court erred as a matter of law and fact in upholding the Secretary’s order.

A brief resume of the facts out of which this matter emerged is necessary to an understanding of the principles hereinafter discussed. On November 23,1974, officials of the Maryland Penitentiary received information from inmate Daniel Allen that there existed a conspiracy to escape from the Penitentiary, and that contraband materials could be found in the cells of Bryant and Horne. Allen, Horne’s cell mate, stated that Horne had told him of the escape plan and that Bryant was the leader behind the plan. A search of the Horne-Alien cell disclosed escape tool's. Similar tools were found in the ceiling near Bryant’s cell. Both appellants were charged, institutionally, with possession of contraband, conspiracy to escape, and disobeying a prison rule.

On November 25, 1974, Allen gave an oral statement which was reduced to writing by Captain Stanley R. Rossman of the Penitentiary. Acknowledging its accuracy, Allen read and signed the statement. The next day the appellants received separate hearings before the Adjustment Team of the Maryland Penitentiary to determine their guilt or innocence of violating prison rules. In addition to the contraband itself, the written statement of Allen was read into the record and Allen also gave oral testimony. Both appellants cross-examined Allen as to his oral and written statements. Apparently in return for his testimony, Allen was transferred to the Maryland Correctional Institution, a place of lesser security, which has more inmate privileges and a greater opportunity for parole. The Adjustment Team found appellants guilty of disobeying a prison rule, possession of contraband, and conspiracy to escape.

Appellants then filed a complaint with the Inmate Grievance Commission in which they attacked the validity of the Adjustment Team’s dispositions. On March 12, 1975, the Commission questioned informant Allen at the Maryland Correctional Institution. Allen stated that he feared reprisal and that under no circumstances would he testify at the Penitentiary at the appellants’ hearing. Allen further told the Commission that Horne had told him of the conspiracy plan and that Allen had never spoken to Bryant. Following the hearing on the complaints of Bryant and Horne, the Commission upheld the Adjustment Team’s findings with respect to disobedience and possession of contraband, but concluded that the finding of conspiracy to escape was improper.

“ ... [T]here was no testimony or evidence before either the Adjustment Team or this Commission to establish that either complainant, individually or in concert, conspired or agreed with any other inmate to effect an escape. Mr. Allen denied any knowledge of or participation in an escape plot and no testimony was presented at either adjustment hearing to establish the necessary confederation for Messrs. Bryant or Horne to be guilty of a conspiracy.”

That portion of the Commission’s findings was reversed by the Secretary on the basis that “[t]he information originally furnished by the informant Allen to Penitentiary authorities, that Bryant and Horne were among a group of sixteen inmates planning an escape, was corroborated by the finding of escape material (diamond cutting blades, handles, sheet metal cutters and a hacksaw blade handle) in the cells of these inmates. It is difficult to imagine what reason, other than an escape attempt, there would be for an inmate in a penitentiary to maintain such equipment in his cell.”

Bryant and Horne noted an appeal to the Baltimore City Court, where Judge Basil Thomas upheld the Secretary’s order.

Appellants, here, assert that the hearing judge erred because he sanctioned the Secretary’s substitution of his own fact finding for that of the Commission. Appellants contend in this Court that:

“The Commission does not ... fit the intended model of a fair administrative tribunal if the court reviewing its decisions is allowed to ignore its factual findings and to give substantial deference, instead, to the findings of the Secretary, who does not hear or review the evidence presented. Nor is another policy underlying the enactment of Art. 41, § 204F — that of providing an impartial and independent body to resolve inmate grievances against corrections officials — advanced if judicial deference is accorded, by a reviewing court, to the Secretary’s findings. The Secretary is the chief administrator of the corrections system, a usual defendant in litigation against that system, and responsible for the daily administration of that system. Commission members are independent from the corrections system and have no potential conflicts of interest in rendering decisions on •inmate complaints against corrections officials.”

Md. Ann. Code art. 41, § 204F (1) limits the court review to “the record of the proceedings before the Commission and the Secretary’s order, if any, pursuant to such proceedinp.” The statute creating the Commission makes it manifest that the Secretary’s order, if any, is the “final decision” which is appealable where the Commission has held a hearing and made fact findings.

Under § 204F, there are three varieties of “final decisions” from which an inmate may appeal: (1) where, upon preliminary review of the grievance or complaint, it is determined to be on its face wholly lacking in merit, the grievance or complaint is dismissed without specific findings of fact by the Commission, by one of the Commissioners or by the Executive Director of the Commission; (2) where a hearing is granted, and after the hearing, the Commission finds in its order that the complaint is wholly lacking in merit and should be dismissed; and, (3) where the Commission finds, after a hearing, that the inmate’s complaint is in whole or in part meritorious, the Secretary, by order, affirms the Commission’s order, or reverses or modifies the order where he disagrees with the findings or conclusions of the Commission.

The appellants argue that the judicial review of the third category of orders should be directed toward the action of the Commission and not the Secretary’s order. The effect of appellants’ argument is to render the Secretary’s order a mere procedural step in getting judicial review of the Commission’s activities. Such an argument is difficult to follow in the light of the fact that no order of the Secretary is necessary for there to be a judicial review of the first two categories of “final decisions.” We cannot conceive that the legislature would permit an appeal to the courts, without an order of the Secretary in what might be characterized as lesser grievances or complaints but require a mere procedural order by the Secretary as a prerequisite to appeal in what appears to be more serious matters.

As we have seen, the statute provides that the hearing court shall limit its review of the inmate grievance or complaint to the “record .. . before the Commission and the Secretary’s order.” In our view, the Secretary’s order is an integral part of the inmate grievance procedure, with respect to the third or ostensibly more serious matters, and subject to judicial review in conjunction with the Commission’s record. Indeed, it is the Secretary’s order that gives vitality to the Commission’s record because without that order the record of the Commission would have no more substance than a hand full of smoke. We think, therefore, that the judicial review should determine whether there is substantial evidence in the record to support the Secretary’s order. Our outlook is supported by the preamble to Laws 1971, ch. 210, where it is stated that the purpose of the act is:

“.. . to provide for judicial review of the decisions of the Secretary of Public Safety and Correctional Services in conjunction with inmate grievances or complaints.. ..”

Appellants strenuously argue that the purpose of the Inmate Grievance Commission will be frustrated if it is the Secretary’s order which is judicially reviewed, urging that the Secretary’s role is limited to matters of law. They aver that the statute expressly provides such review and “vests the Commission with the responsibility for the fact-finding function.” Aside from their reliance on the statute for support of their position, appellants assert that “[t]he [bjasic [policies [underlying the [c]reation of the Commission [s]upports [sic] the [p]rimacy of the Commission’s [r]ole as [¶] act-finder.” The cases relied upon by appellants to underpin the argument are State v. McCray, 267 Md. 111, 297 A. 2d 265 (1972); Washington v. Boslow, 375 F. Supp. 1298 (D. Md. 1974); McCray v. Burrell, 367 F. Supp. 1191 (D. Md. 1973). The cited cases all discuss the functions of the Maryland Inmate Grievance Commission. State v. McCray, however, merely paraphrases the statute creating the Commission and accords due deference to the fact that judicial review is of the Secretary’s order. 267 Md. at 144, 297 A. 2d at 282. In acknowledging the role of the Secretary, McCray goes on to express the view that: “We think that the Inmate Grievance Commission Act and the implementing rules adopted by the Commission provide ‘a simple and workable procedure by which every person in confinement who has, or thinks he has, a grievance or complaint can be heard promptly, fairly, and fully,’ and obtain a judicial review with respect to his constitutional and statutory rights.” Id. The fact that judicial review is of the Secretary’s order does not create a situation where a “grievance or complaint can [not] be heard promptly, fairly, and fully.” Judicial review of the Secretary’s order will still enable an inmate’s status to come under the scrutiny of the courts.

In Washington v. Boslow, 375 F. Supp. 1298 (D. Md. 1974), an inmate complained that the Inmate Grievance Commission Act violated his right to due process because of the broad authority of the Secretary to review orders. The court said at 1302 that “[t]he Secretary’s review authority . .. does not contravene due process since in practice he has not exercised this authority in an arbitrary or prejudicial manner, and any inclination to do so is checked by the availability of judicial review.”

The Court, in McCray v. Burrell, 367 F. Supp. at 1207, observed that the “.. . Maryland Inmate Grievance Commission combines the best of both suggestions, that is, initial investigation by a non-judicial institution charged with the responsibility of investigating and assessing prisoner complaints, and provision for subsequent review by the Courts.”

No language in the above-mentioned cases reenforces appellants’ contention that the philosophy of the act is dampened by judicial review of the Secretary’s order. Rather, the cases tend to point up the role of the Secretary and emphasize that it is the judicial review of his actions which is to occur.

Accordingly, it is the Secretary’s order to which the lower court correctly applied the appropriate principles of law governing the scope of judicial review of adjudicative decision-making by an administrative agency.

This Court observes that there was substantial evidence in the Inmate Grievance Commission’s record to support the Secretary’s order. The Commission’s record consisted, in pertinent part, of Captain Hansen’s testimony wherein he described his finding of escape materials in Horne’s cell, the Adjustment Team’s record of the contraband found near Bryant’s cell and in Horne’s cell, Bryant’s admission of possession of the contraband found near his cell, Allen's oral statement as reduced to writing by prison officials in which he stated that Bryant and Horne were conspiring to escape, and a summary of Allen’s testimony before the Adjustment Team.

Thus, the Secretary’s finding that substantial evidence existed to establish a conspiracy to escape between Horne and Bryant has its support in the record.

With the prison authorities’ discovery of contraband in various locations of the Penitentiary, a clear inference arose that a conspiracy to escape existed. As Secretary Lally puts it, “... what reason, other than an escape attempt, ... would [there] be for an inmate in a penitentiary to maintain such equipment in his cell.”

That such a conspiracy existed was buttressed by Allen’s statement that “Jerry Horne, who was my cell partner helped to pass the blades from Crenshaw to Bryant, and he held some himself... . Horne discussed all this with me, and told me just how it was going down. They had an outside man all lined up... .” We think the discovery of the escape materials, when coupled with Allen’s statement, is sufficient to find, as a matter of law, that a conspiracy did, in fact, exist.

In those situations “. .. where the declarations of the conspirator are sought to be introduced through a third person [Allen]; such third person cannot testify against the coconspirator until the latter’s connection with the conspiracy is proved by evidence aliunde.” 3 Underhill Criminal Evidence § 861 at 1930 (5th ed. 1957), cited with approval in Irvin v. State, 23 Md. App. 457, 471, 328 A. 2d 329, 337-38 (1974). In Irvin it was said that “[i]n addition to proof by independent evidence of the existence of the conspiracy, the State must also demonstrate that the declaration or act of the co-conspirator was made or done in furtherance of the conspiracy and during its pendency.” 23 Md. App. at 472, 328 A. 2d at 338. Allen testified before the Commission that he was asked by Horne “... did I want to go along with them. William Bryant didn’t ask me, see, ‘cause I didn’t communicate with him under no circumstances, not William Bryant. ... So I told them I wasn’t going to get involved .... So then they got to saying that I know too much and all that, see. So then that’s when I told the Warden down there, Mr. Hawkins, see, and then I took Mr. Hawkins to get all the escape material that they had. ...”

Thus, with the inference of conspiracy arising from the finding of escape materials in different locations in the Penitentiary and Allen’s statement as to what Horne said to Allen (which may be viewed as a conspirator’s attempt to further the conspiracy), the Secretary, in our view, had before him substantial evidence in the record upon which to make his decision on the conspiracy charges.

The test to be applied by courts in reviewing the actions of an administrative agency is set out succinctly in Snowden v. Mayor and City Council, 224 Md. 443, 445, 168 A. 2d 390, 391 (1961). There Judge Hammond (later Chief Judge) wrote for the Court:

“The court will correct illegal actions and those which are arbitrary and unreasonable because they are not based on substantial evidence but it will not substitute its own independent examination of or its own judgment on the facts for those of the agency to which the carrying out of state policy has been delegated.”

When the instant case is viewed in the light of the Snowden test, we are led to conclude that the Secretary’s order is not illegal, arbitrary, or unreasonable.

The appellants next contend that because they were denied the right to confront and cross-examine Allen at the Commission’s hearing, the evidence supplied by him should not have been relied upon by the hearing court. Initially, we note that “[a]dministrative agencies, while not bound by common law rules of evidence, ‘must observe the basic rules of fairness as to parties appearing before them.’ ” Rogers v. Radio Shack, 271 Md. 126, 129, 314 A. 2d 113, 115 (1974).

It is true that Daniel Allen was not cross-examined at the Commission hearing. In fact, Daniel Allen refused to attend the hearing and stated that if he were compelled to be present, he would not testify.

The Inmate Grievance Commission Act provides that “[t]he inmate shall have the right to appear before the Commission and shall have the opportunity to call ... a reasonable number of witnesses .... The inmate shall have a reasonable opportunity to question any witnesses who testify before the Commission. Such rights of the inmate shall not be unreasonably uñthhéld or restricted by the Commission.” Md. Ann. Code art. 41, § 204F (h). (Emphasis supplied.) We do not interpret this provision to mean an unqualified right of cross-examination. Rather, we view the lack of cross-examination in the case now before us in light of the then existent circumstances. In so doing, we are mindful that “ [confrontation and cross-examination present greater hazards to institutional interests. If confrontation and cross-examination of those furnishing evidence against the inmate were to be allowed as a matter of course, as in criminal trials, there would be considerable potential for havoc inside the prison walls.” Wolff v. McDonnell, 418 U. S. 539, 567, 94 S. Ct. 2963, 2980; 41 L.Ed.2d 935, 957 (1974).

Cognizant of the hazards, particularly Allen’s fear for his life, the lack of cross-examination afforded the appellants does not contravene basic fairness, because both Bryant and Horne acknowledged that they had the opportunity to cross-examine Allen at the Adjustment Team hearing. The Adjustment Team report reflects the nature of the cross-examination. Moreover, appellants were offered an opportunity before the Commission to air fully their complaints concerning Allen.

In sum, Bryant’s and Horne’s inability to cross-examine Allen at the Commission hearing did not render Allen’s statement such that neither the Secretary nor the hearing judge should have considered it.

The final allegation of error raised by appellants is that “[t]he lower court erred in failing to reverse the convictions of appellants on charges of disobeying an institutional rule since that offense is identical to the offenses of conspiracy to escape and contraband.” The appellants are correct in this regard. Rule 1 of the General Information and Guidance Manual for Inmates provides for action by the Adjustment Team when there is a “[disobeying [of] any lawful order of the Warden, Assistant Warden, or any official of the institution or any prison rule or regulation.” (Emphasis supplied.) From the wording of Rule 1, it is apparent that a violation of Rule 18 (contraband) and a conspiracy to escape would ipso facto spring Rule 1 into operation. As the Commission noted, “[b]oth inmates agreed that the charge of disobedience (Rule No. 1) is a generalized adjustment violation which usually accompanies any other specific rule infractions.” The net effect of charging Bryant and Horne with violation of Rule 1, as well as conspiracy to escape and possession of contraband, is to punish them further for the conspiracy and the contraband possession. If additional punishment was imposed under the guise of separate offenses, when in reality the offenses were not separate, it would be a violation of the basic rules of fairness and an affront to our concept of justice.

A denial of due process may be found not only in failing to afford that process which is due, but also in affording more process than is due.

We reverse and remand to the Baltimore City Court with instructions that it reverse the Secretary’s order and remand the matter to him for further consideration in accordance with this opinion.

Order reversed.

Case remanded for further proceedings consistent with this opinion.

      . For purposes of this opinion, Patuxent Institution is embraced within the ambit of “penal institutions.” See Md. Ann. Code art. 41, § 204F (d).

      . Codified as Md. Ann. Code art. 41, § 204F.

      . John Adams, 1735-1826, Defense of the British Soldiers on Trial for the Boston Massacre (1770).

      . In such cases, the dismissal constitutes the final decision of the Secretary of Public Safety and Correctional Services for the purposes of any judicial review.

      . If the inmate is confined in an institution located in the City of Baltimore, the review must be sought in the Baltimore City Court. Md. Ann. Code art. 41, § 204F (1).

      . In the original “Motion to Dismiss” filed by the Attorney General prior to the filing of his brief, he cited two cases of this Court as authority for his position, namely, Prince George's County v. Fahey, 28 Md. App. 312, 345 A. 2d 102 (1975) and American Ambulance v. City of Balto., 31 Md. App. 432, 356 A. 2d 580 (1976). Neither case lends support to the State’s position as both are concerned with a local ordinance. Furthermore, neither case arises from a State agency. In any event, we denied the Motion to Dismiss as untimely. See Md. Rule 1036 c. The State, however, as it was entitled to do, renewed its Motion to Dismiss in its brief. Md. Rule 1036 d.

      . This section was amended by Laws 1976, ch. 648, effective July 1976, to exempt from the act, under certain conditions, the Maryland Automobile Insurance Fund. The amendment has no application to the instant case.

      . Subsection (k) of Md. Ann. Code art. 41, § 204F provides: “The Commission, subject to the approval of the Secretary, shall have the power to adopt rules and regulations for the conduct of its proceeding as provided for in this section.” The rules of the Commission are found in Public Safety and Correctional Services 12.07.00.00-.05. On balance, however, the rules appear to do little more than paraphrase the statute creating the Commission.

      . Md. Ann. Code art. 41, § 256A authorizes appeals to this Court by “the political subdivisions of this State and their agencies and instrumentalities. ...” Section 256A confers upon State agencies “the status of an interested person, petitioner, or party,... in all matters including appeals.”

      . Bryant, as a result of the Adjustment Team hearing, was ordered segregated for a period of two years. Horne was also segregated, but for eighteen months. The good conduct time of both inmates was forfeited.

      . It is possible that a violation of any other rule would also constitute a violation of Rule 1.