author: Liss, J.,

text:
    THOMAS A. CULVER v. RUTH C. CULVER, Personal Representative of the Estate of Robert L. Culver
    |No. 484,
    September Term, 1980.]

      Decided February 4, 1981.

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

      Dirk W. Widdowson and Robin R. Cockey, with whom were Fulton P. Jeffers and Hearne & Bailey, P.A. on the brief, for appellant.

      Hobart B. Hughes, with whom were Long, Laws, Hughes & Bahen on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

An experienced legal practitioner once commented, "Where there’s a will, there are relatives.” The accuracy of that observation is illustrated by the facts of this case.

Clifford W. Culver (Clifford) executed his last will and testament in 1960 and died on April 16, 1963. By the terms of his will he disposed of a portion of his property in the following manner:

THIRD: I give and devise all of the real estate that I may own at the time of my death unto my wife, Willa T. Culver, for and during the term of her natural life and upon her death I give and devise the same unto my two (2) brothers, Thomas and Robert, or the survivor of them, but if they should predecease me then, and in that event, I give and devise said real estate unto the male descendants of Thomas and Robert, my brothers, per stirpes and not per capita, in fee simple, absolutely.

Item four of his will provided for the disposition of the rest and residue of his property as follows:

FOURTH: All of the rest, residue and remainder of my property of which I may die possessed, of whatever nature and wheresoever situate to which I may be entitled or of which I may have power by appointment or otherwise by any deed, Will or other instrument to dispose of at my decease, I give, devise and bequeath unto my wife, Willa T. Culver, absolutely, and in fee simple, provided she survives me; but if my said wife should predecease me or in the event my said wife and I shall perish in a common accident, disaster or catastrophe, or under such circumstances that it is impossible, or there is no sufficient proof, to determine which of us died first, then, and in any such event, I give, devise and bequeath said rest, residue and remainder to those who would be entitled to same had I died intestacy [sic] under the Laws of the State of Maryland.

The real property devised by Clifford’s will consisted of two parcels of farmland located in Wicomico County, Maryland.

Clifford’s brother, Robert, died on October 7, 1978. Robert left a last will and testament by which he devised his property to his wife Ruth C. Culver. Ruth C. Culver (Ruth), as personal representative of her husband’s estate, is the appellee in this case.

Willa, the life tenant under Clifford’s will, died on August 16, 1979 some nine months after the death of Robert.

On June 15, 1979, Ruth, as personal representative of Robert’s estate, filed a bill for declaratory judgment in the Circuit Court for Wicomico County. By her bill of complaint she sought a declaratory judgment that the effect of the third item of Clifford’s will was to vest a remainder interest in Clifford’s brothers, Robert and Thomas, subject to the life estate of Clifford’s widow, Willa. Ruth also sought to have a declaratory ruling that the remainders vested in Thomas and Robert as of the date of Clifford’s death, and further, that Robert’s vested remainder passed to Ruth under the residuary clause of Robert’s will at the death of the life tenant.

Thomas A. Culver (Thomas), the appellant, answered Ruth’s bill for declaratory relief and motion for summary judgment by which he contended that the survivorship clause of item third of Clifford’s will must be read as taking effect as of the date of Willa’s death; and that as Robert predeceased the life tenant, Willa, Robert’s interest was a contingent remainder which terminated at Robert’s death prior to the death of the life tenant.

The trial judge held a hearing on the motion for summary judgment and denied the motion. The matter then came on for hearing on the merits. The record discloses that at the time of Clifford’s death he owned a 128.15 acre parcel of land on Jersey Road in Wicomico County, Maryland which had been conveyed to him by his father, L. Gordy Culver in 1952. Also at the time of his death, Clifford owned a one-third interest in a 68 acre parcel of land located on Pemberton Drive just outside the city limits of Salisbury, Maryland. L. Gordy Culver, the father of Clifford, Robert, and Thomas, had originally owned the Pemberton farmland and approximately 400 acres of farmland on Jersey Road. In 1952, the father divided the Jersey Road farmland by conveying nearly equal parcels to his three sons. At the father’s death, he still owned the Pemberton farmland, and by the father’s last will and testament he devised that property in equal shares to Clifford, Robert and Thomas.

The father and his three sons were lifelong farmers, and prior to the death of the father, a farming corporation was formed which operated the property as farmland. When Clifford died without issue, he left surviving him his widow Willa, and his brothers Robert and Thomas. After Clifford’s death his parcels were leased to the corporation at a rental of $10 per acre, and all the income from Clifford’s parcels was paid to Willa.

After holding the case sub curia, the trial judge declared that the remainder was to a designated person contingent as to the occurrence of an event, but whether Robert was determined to a vested remainderman or a contingent remainderman was unimportant as the result would be the same (i.e., that Thomas and Robert or Robert’s heirs were entitled to share the property here involved). In handing down its ruling the lower court held "that the intention of the testator must govern when such intention can be ascertained from the will.” The court went on to state that it "does not believe that Clifford intended the family of Thomas to inherit the property to the exclusion of the family of Robert.” It is from that judgment that this appeal was taken.

The issues to be decided by this appeal are:

I. Whether the language of item third of Clifford W. Culver’s will created a contingent remainder or, in the alternative, a vested remainder, and at what time did such estate vest?

II. Assuming, arguendo, that the remainder interest created by item third of Clifford W. Culver’s will was contingent, was it still devisable by Robert’s will?

I.

Appellant urges that the language of item third of Clifford Culver’s will created a contingent remainder in Robert L. and Thomas R. Culver that vested at the termination of the intervening life estate.

At 28 Am. Jur. 2d Estates Section 266 (1966), it is stated that:

The vested or contingent character of a remainder to survivors frequently depends upon whether the survivorship relates to the death of the testator or grantor or to some other period. Obviously, if words of survivorship relate to the period of distribution, generally the death of the life tenant, the remainder is contingent, since who will survive such time in order to take the remainder is uncertain until the time of the life tenant’s death or other event. Survivorship is then a condition precedent to the vesting of the gift, and a remainder subject to a condition precedent is contingent. If the words of survivorship are held to refer to the time of the grant or of the death of the testator, or, in other words, to the time when the deed or will takes effect, the remainder may be vested, either absolutely or defeasibly .... [Footnote omitted.]

Barring sufficient evidence of a contrary testamentary intent, an estate or interest will be held to vest as early as possible. Larmour v. Rich, 71 Md. 369, 18 A. 702 (1889). The controlling factor, however, is always testamentary intent.

Thus, it is stated in Pocock v. Gladden, 154 Md. 249, 256, 140 A.2d 208 (1928) that:

[I]f the intention of the testator to have the estate vested at a particular time is apparent from the whole will, that construction will be adopted which gives effect to the intention of the testator, even though it violates the rule favoring the early vesting.

In discerning the intention of the testator in regard to his use of words of survivorship, the courts over the years have availed themselves of two different (and competing) rules of construction:

The rule ... applied in the early English decisions and still adhered to in a few jurisdictions in this country, [is] that words of survivorship in a testamentary gift of a remainder after a life or other intervening estate are referable to the death of the testator, in the absence of any sufficient indication of a contrary intention . ..
The rule ... in the later English cases and in the greater number of American jurisdictions, [is] that words of survivorship in a testamentary gift of a remainder after a life or other intervening estate are referable to the termination of the intervening estate, in the absence of any sufficient indication of a contrary intention.... [20 A.L.R.2d 830, at 833 (1951).]

At 28 Am. Jur. 2d Estates Sections 267 and 268 (1966), an almost identical statement of the two rules is given, along with the assessment that the rule referring survivorship language to the time of life tenant’s death represents the majority view:

Subject always to the cardinal rule of construction that the intention of the testator, if clearly ascertainable from the language of the will, must control, the earlier English rule that where a remainder is given to survivors of a class, survivorship is to be determined as of the time of the testator’s death, has been adopted by some courts in the United States. [Emphasis supplied.] [Footnote omitted.]
* * *
In the later English cases and in the greater number of American jurisdictions, the presumption is that words of survivorship refer to the period of distribution of the estate in remainder unless a special intention to the contrary is expressed by the language of the will. [Footnote omitted.]

Miller, in his treatise on wills, discusses the rules for construing survivorship language in a will, and offers the following account of their historical development:

In the earlier English cases, where the gift was after a prior estate, the courts uniformly held that words of survivorship in wills of both real and personal estate referred to the death of the testator; so that such a gift to several persons as tenants in common, and the survivors and survivor of them, vested the subject of gift absolutely in the persons living at the death of the testator, the words of survivorship being referable to that period. But in the later English cases, where there is a gift to a person for life, or any other limited interest, and after the termination of such interest to certain persons by name, or to a class of persons as tenants in common, "and the survivors of them”, the rule is to refer the words of survivorship to the period of distribution, or to the termination of the intermediate estate; that is to say, the legatees surviving at that time take to the exclusion of the personal representatives of such as may have died before that period.
In this country the weight of authority at one time seemed to be in favor of the earlier rule which refers the words of survivorship where the gift was not immediate, to the death of the testator, and this too without recognizing any distinction between real and personal estate. This accords with the settled rule of construction in favor of the early vesting of legacies, and is consistent with the policy of the law which opposes joint tenancy, with its distinctive feature of the right of survivorship. In recent Maryland cases, however, it is said as a rule of general application, that when a gift is made for life, or years, or for any other particular estate, and then over to survivors, the period of survivorship is generally to be referred to the period of distribution or the termination of the particular estate, and not to the death of the testator; subject of course to the intention. (Emphasis supplied.) When the will simply creates a life estate in one person and makes a gift over at its expiration to several persons or the survivor or survivors of them, the survivorship refers to the period of distribution, unless the facts or the context of the will withdraw the gift from the operation of the rule. [Miller, Construction of Wills in Maryland Section 274 (1927).] [Footnotes omitted.]

Appellee, on the other hand, contends that the rule favoring the earliest possible vesting of estates, in the absence of a clear intention to the contrary, favors the vesting of estates whether remainder or otherwise at the time of the death of the testator. As Miller states in Section 227 of his treatise on wills, supra:

The most important of the settled rules of construction in reference to the question as to when an estate, whether in remainder or otherwise, shall vest, and indeed the only rule which is general, definite and fixed, is that the law favors the earliest vesting of estates. It favors the vesting at the earliest moment that is consistent with the apparent intention of the testator or the general scheme of his will. Therefore, in the absence of a clear intention to the contrary, it favors the vesting at the time of the death of the testator, because every postponement of the vesting renders it contingent and uncertain, at least as to the person who is to take. [Footnotes omitted.]

The Court of Appeals has followed the rule of construction favoring the early vesting of estates, unless there is language in the will postponing the vesting. See Johnson v. Swann, 211 Md. 207, 126 A.2d 603 (1956); Robinson v. Mercantile Trust Co. of Balto., 180 Md. 336, 24 A.2d 299 (1956); Nicodemus National Bank v. Snyder, 178 Md. 140, 12 A.2d 518 (1940); Wilson v. Pichon, 162 Md. 199, 159 A. 766 (1939); Grace v. Thompson, 169 Md. 653, 182 A. 573 (1936).

The question here to be decided is what was the testamentary intent of Clifford Culver. From our analysis of items three and four of the will, we have no difficulty in reaching what we think is the accurate determination of the testator’s intention. Item three, in our opinion, provides for the occurrence of two contingencies which must be considered together. First, what is to occur in the event one of the brothers dies before the testator; and second, what is to occur if both brothers die before the testator? The latter clause clearly refers to what is to happen if both brothers "predecease me” (emphasis supplied), and unambiguously expresses an intention that under that circumstance the real estate shall devolve to "the male descendants of Thomas and Robert, my brothers, per stirpes and not per capita in fee simple, absolutely.” To accept appellant’s interpretation of the first portion of item three as referring to Willa’s death would leave an unexplainable gap in the testator’s expressed intention. This would require us to find that in the event both brothers predeceased the life tenant that the testator intended the property to go to his wife or her heirs under the rest and residue clause of his will, as reflected in item four. This would, in our opinion, disenfranchise the male descendants of Thomas and Robert and give to Willa and her heirs more than the testator ever intended. It seems clear that Clifford intended to provide an income for the support and maintenance of his wife so long as she might live and at her death to have the property descend to his brothers or their male descendants if the brothers had deceased. This intention carried out the plan evidenced by the actions of Clifford’s father that indicated the property was to remain in the family and was to be farmed by the three brothers. We conclude that the remainder devised to the brothers vested as of the time of the testator’s death.

II.

Concluding, as we do, that the brothers had a vested remainder subject to the widow’s life estate, it is well settled in Maryland that a vested remainder interest is freely alienable, devisable and descendible. Professor Russell Reno in an article entitled "Alienability and Transmissibility of Future Interests in Maryland,” 15 Md. L. Rev. 193, 210 (1955), said:

Where the future interest is created in a designated person or persons either by name or description, so that the takers are fully ascertained at the death of the testator, the Court of Appeals has repeatedly refused to imply survival until the time of vesting and possession as a condition precedent. Clearly if the interest is otherwise vested it would be contrary to policy to imply a condition precedent of survival, thus making the interest contingent. But even where the interest is otherwise contingent, because it depends upon the happening of another event as in the case of executory interests, the Court has refused to imply a condition precedent of survival in the absence of some wording in the instrument showing such an intent. Thus the fact that a gift to a designated person is contingent upon an event in no way connected with the continued life of the taker does not render the contingent estate non-transmissible by the death of the taker before the estate has vested in interest. In other words, the fact that a gift to a designated person is still a mere possibility of an estate and not a certainty at his death does not destroy its transmissible character by intestate succession or testamentary disposition.

See Simon v. Safe Deposit & Trust Co., 190 Md. 468, 59 A.2d 199 (1948).

In Hammond v. Piper, 185 Md. 314, 319, 44 A.2d 756 (1945), the Court of Appeals said: "Where the remaindermen are ascertained, although there is a contingency as to an event, such as the death of [the life tenant] without leaving children or descendants, such remainders are both descendible and devisable.” In McClurg v. Myers, 129 Md. 112, 120, 98 A. 491 (1916), the Court, quoting from Demill v. Reid, 71 Md. 175, 17 A. 1014 (1889), stated the general rule as follows:

[A] contingent remainder of inheritance is transmissible to the heirs of the person to whom it is limited, if such person chances to die before the contingency happens. The rule by its terms applies where the person to take is certain, that is, where an individual is named or definitely described as a party to take when the contingency happens.

We find that Robert’s vested remainder interest in this property passed by reason of his last will and testament to his personal representative and wife, Ruth, upon the death of the life tenant, Willa. We, therefore, find no error in the judgment below.

Judgment affirmed; costs to be paid by appellant.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    LAWRENCE WILBUR HALL v. STATE OF MARYLAND
    [No. 549,
    September Term, 1980.]

      Decided February 5, 1981.

    The cause was submitted on briefs to Morton, Thompson and Moore, JJ.
    Submitted by Gilbert H. Robinette, Assigned Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Patricia E. McDonald, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Barry A. Hamilton, Assistant State’s Attorney for Montgomery County, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Lawrence Wilbur Hall, the appellant, was convicted by the Montgomery County Circuit Court of carrying a handgun, but the jury was unable to reach a verdict on the other counts of the indictment. A presentence investigation was ordered and the appellant was sentenced. Subsequently, he was retried on those charges upon which the first jury had been unable to agree and was convicted of assault with intent to rob and use of a handgun in the commission of a felony. This appeal is from the judgments entered at the second trial.

FACTS

On March 6, 1979, Willard and Lorraine Sheppard, along with their son, Stanley, were present in their Bethesda jewelry store, when, at about 11:15 a.m., a well-dressed black man came to the door. The door, which was equipped with a lock operated by means of a buzzer, was opened by Stanley Sheppard and the man entered the store. Once inside, the man produced a pistol and announced: "This is a holdup.” Seconds later, another black man, identified at trial as the appellant, walked up to the door and stood there, looking in. The man inside the store, while pointing his weapon at the Sheppards, backed towards the door and attempted unsuccessfully to open it. He then demanded that the Sheppards press the buzzer to release the lock and admit the appellant; the Sheppards refused. Apparently while the gunman was distracted by his attempt to open the door, Stanley Sheppard escaped to the basement beneath the store. Willard Sheppard then seized a pistol which was hidden in a cabinet and fled towards the basement. As he did so, the man inside the store fired his pistol, wounding Mr. Sheppard in the back. Mrs. Sheppard then pressed the buzzer, releasing the lock and the gunman went out the front door. Mrs. Sheppard testified that the gunman, after stepping outside, paused for a moment with the appellant, who had remained standing at the door throughout the incident. The two then turned and walked in opposite directions.

Willard and Stanley Sheppard emerged from the basement and went in search of the robbers. Approximately a block away, they observed the appellant standing near a bus stop. Stanley Sheppard flagged down a policeman and directed his attention to the appellant, who was at that time attempting to enter a taxicab. The policeman approached the appellant, ordered him to put his hands on top of the cab, and frisked him. The appellant was carrying an empty briefcase and had a fully loaded revolver in the pocket of his coat. His alleged accomplice in the robbery, the man who entered the store and shot Mr. Sheppard, was neither apprehended nor identified.

The appellant testified, admitting glancing into the jewelry store but stating that he moved on after three or four seconds. He stated that he was not aware that a robbery was in progress, although he saw the robber standing inside. He denied seeing anyone come out of the store. He claimed he was attempting to catch a cab to return to his home in downtown Washington when he was arrested. He stated that he was in Bethesda on the day of the robbery in order to look for a new job and that he carried the empty briefcase to make a better impresson on prospective employers. He had previously been convicted for receiving stolen property as a result of an unrelated incident.

Of crucial importance was the testimony which the appellant offered to explain why he was carrying a handgun at the time of his arrest. He claimed that he was employed as a night delivery man for a downtown pizza shop and that, during the course of his employment, he had been robbed on several occasions. He claimed that he carried the weapon while on his job for his protection and that he was carrying the gun at the time of his arrest because he had neglected to remove it from his coat pocket after working the previous night. On cross-examination, the appellant was asked whether he recalled a conversation which he had had with one Louis Monk on December 18, 1979. Initially, the appellant indicated that he did not; he then stated that he recalled the conversation but did not know the name of the man he had talked to. He was asked specifically whether he had told Monk that he had been unemployed for two months prior to his arrest; he answered that he had not. The court was advised during a bench conference that Louis Monk was the probation officer who had conducted the presentence investigation following appellant’s conviction at the first trial and that Monk would testify that the appellant had made a statement, during the presentence investigation, concerning his employment history which conflicted with his testimony at trial. The state was permitted to call Mr. Monk in rebuttal and question him concerning the inconsistency. He testified that the appellant had told him that he, the appellant, had been unemployed from January through April, 1979. Although the presentence report was not entered into evidence, Mr. Monk, during the course of his testimony, made the statement: "[T]his is straight from the presentence investigation.”

I Admission of Monk’s Testimony

Appellant’s first contention is constitutional in nature. He argues that permitting the state to impeach his testimony with statements he made to the probation officer conducting the presentence investigation violated his Sixth Amendment right to the assistance of counsel.

In Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), where the "Court first applied the Sixth Amendment to post indictment communications between the accused and agents of the government,” United States v. Henry, 447 U.S. 264, 100 S. Ct. 2183, 2186, 165 L. Ed. 2d 115 (1980), it was held that "the petitioner was denied the basic protections of [ the Sixth Amendment) when there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.” 377 U.S. at 206. In Massiah, the petitioner’s co-defendant, who had secretly agreed to cooperate with the government in its investigation, permitted a government agent to install a listening device in his car. By means of this device, the agent was able to listen to a conversation between the petitioner, who had been indicted and released on bail, and the co-defendant in which the petitioner made a number of incriminating statements. The agent testified concerning these statements at petitioner’s trial.

In Escobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977 (1964), the Court held inadmissible a confession extracted from a suspect who requested and was denied the opportunity to consult with his attorney during a police interrogation. The Court held "that when the process shifts from investigatory to accusatory t- when its focus is on the accused and its purpose is to elicit a confession — our adversary system begins to operate, and under the circumstances here, the accused must be permitted to consult with his lawyer.” 378 U.S. at 492.

In Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977), the facts of which were held to be "constitutionally indistinguishable from those presented in Massiah . . . ,” 430 U.S. at 400, the Court again found a violation of a prisoner’s Sixth Amendment right to counsel. There, Williams, while under arrest and being transported by police, led police to the location where he had left his victim’s body, as well as to the locations where he claimed to have abandoned various pieces of evidence. The court found that he did so in response to a police detective’s now famous "Christian burial speech,” which was "tantamount to interrogation.” 430 U.S. at 400. This interrogation was carried out while Williams was alone in the police vehicle with two police officers, at a time when Williams had retained counsel and when the officers had agreed that they would ask Williams no questions during the drive. The Court found that the policeman "deliberately and designedly set out to elicit information from Williams ... [;] ... he purposely sought during Williams’ isolation from his lawyers to obtain as much incriminating information as possible.” (emphasis added). 430 U.S. at 399.

Most recently, in United States v. Henry, supra, the Court considered whether Henry’s Sixth Amendment right to the assistance of counsel was violated by the admission at his trial of incriminating statements which he had made, after indictment and while in custody, to a fellow prisoner, an undisclosed government informant. The Court viewed the question before it as "whether under the facts of this case, a government agent 'deliberately elicited’ incriminating statements from Henry within the meaning of Massiah 447 U.S. at 270, 100 S. Ct. at 2186. In its consideration of this question, the Court rejected the government’s contention that Brewer had in some way modified the "deliberately elicited” test set forth in Massiah. 447 U.S. at 271, 100 S. Ct. at 2187. See also, Rhode Island v. Innis, 446 U.S. 291 at 300 n.4, 100 S. Ct. 1682, at 1689 n.4, 64 L. Ed. 2d 297 (1980). The majority concluded: "By intentionally creating a situation likely to induce Henry to make incriminating statements without the assistance of counsel, the government violated Henry’s Sixth Amendment right to counsel.” (footnote omitted). 447 U.S. at 274, 100 S. Ct. at 2189.

These decisions of the Supreme Court of the United States rest upon a common foundation: in each there was deliberate elicitation by the government of incriminating statements from a defendant who was either under indictment or in custody, at a time when the defendant had been in some manner separated from his counsel. In each instance, the defendant was induced to make a statement which the government sought for the specific purpose of convicting him of the crime for which he was then either under indictment or in custody. It is this conduct which the Supreme Court has held to be prohibited by the Sixth Amendment. See, United States v. Garcia, 377 F.2d 321, 324 (2d Cir.), cert. denied, 389 U.S. 991 (1967) ('Massiah .. . only protects against deliberate efforts of law enforcement agents which are specifically aimed at eliciting incriminating statements relative to the crime under indictment.”) The government’s intent is crucial.

In the case at bar, the trial court, in overruling the appellant’s objection to the introduction of Monk’s testimony, made the following observation: "[T]he question [i.e., Monk’s question concerning the appellant’s employment history] was not asked for the purpose of obtaining information for use in this case.. .. [T]he State did not undertake any subterfuge, did not intentionally act to deprive the defendant of his right to counsel....” We concur in this analysis and find that it distinguishes the instant case from those decisions which we discussed above. Here, there was no deliberate elicitation of incriminating information; the state’s purpose in conducting the presentence investigation was not to accumulate evidence for use at the appellant’s second trial. We note that there is no reason to believe that Monk, at the time he conducted the presentence investigation, was even aware that the appellant would be retried. There is no basis for concluding that Monk should have expected to obtain incriminating information in the course of the investigation. Cf., Rhode Island v. Innis, supra. (Fifth Amendment challenge to admission of incriminating statement on facts similar to those in Brewer; statements held admissible: "[T]he respondent was not subjected by the police to words or actions that the police should have known were reasonably likely to elicit an incriminating response from him.” 446 U.S. at 303, 100 S. Ct. at 1691). There is no evidence which suggests that the state contrived to separate the appellant and his counsel or to conduct the interview at a time when appellant’s counsel was not present. The record reflects that appellant’s counsel was well aware of the interview; there is at least one reference which indicates that counsel may have taken him to the interview. We find no basis here for concluding that the state, through Monk, deliberately elicited incriminating information from the appellant. We therefore hold that the introduction of Monk’s testimony did not violate appellant’s Sixth Amendment right to have the assistance of counsel.* *

The appellant also contends that "his Fifth Amendment right to remain silent was violated due to the judicial compulsion to speak to Monk...” He cites no authority which supports this proposition and we know of none. We find no basis in the record for a claim that the appellant’s statement was in any sense "compelled.” Cf., Hoffa v. United States, 385 U.S. 293, 87 S. Ct. 408, 17 L. Ed. 2d 374 (1966).

II Motion for Mistrial

Following Mr. Monk’s reference, during the course of his testimony to "the pre-sentence investigation,” appellant moved for a mistrial. His second contention is that the court below erred in refusing to grant his motion. Prior to placing Monk on the stand, the State’s Attorney stated that he intended to have Monk testify without revealing to the jury that the appellant had made the contradictory statement during the course of a presentence investigation. His purpose in so doing was to insure that the jury not learn of the appellant’s prior conviction for carrying a handgun. The court sanctioned this procedure and overruled the appellant’s objection to the proffered testimony. Although the State’s Attorney had instructed the witness to pay careful attention to his questions and to answer only the precise question asked, he had scarcely begun to examine Monk when the following occurred:

"Q. And, what did he tell you about his employment during those two years?
A. Okay. From this — again this is straight from the pre-sentence investigation. From 1976 to 1978 —”

The appellant immediately moved for a mistrial. The court responded:

"The Court: The Motion will be denied. It is just not — it is the whole setting and the context of the case, particularly where the defendant has been on the stand and asked about his prior record, and the only prior record he has that was gone into had to do with receiving of a ... [stolen bicycle].
Mr. Hamilton: In 1977.
The Court: For all they [the jury] know, somebody does a pre-sentence investigation report when a man is charged before he goes to trial.”

In Wilhelm v. State, 272 Md. 404, 429, 326 A.2d 707 (1974), the Court said:

"A request for a mistrial in a criminal case is addressed to the sound discretion of the trial court and the exercise of its discretion, in a case involving a question of prejudice which might infringe upon the right of the defendant to a fair trial, is reviewable on appeal to determine whether or not there has been an abuse of that discretion by the trial court in denying the mistrial, [citation omitted]. The decision by the trial court in the exercise of its discretion denying a mistrial will not be reversed on appeal unless it is clear that there has been prejudice to the defendant.”

As we stated in Johnson v. State, 18 Md. App. 571, 575, 308 A.2d 426, cert. denied, 270 Md. 740 (1973): "We must give consideration to the fact that the lower court in the trial setting is in a much better position to assess the prejudicial effect, if any, of the occurrence prompting the motion.” See also, Wilhelm v. State, supra at 429:

("[Rjeeognition must be given to the fact that the trial judge, who presides in the arena where the forensic adversaries are engaged, is in the best position to evaluate and assess — in the context in which the remarks are made and their relationship to other factors in the trial — whether they were in fact prejudicial.”)

In the case at bar, the trial court determined that, in the context in which it was made, the witnesses’ reference to "the pre-sentence investigation” was not prejudicial and was, in all likelihood, considered by the jury to be meaningless. We agree that there was no prejudice to the appellant and therefore find no abuse of discretion in the denial of appellant’s motion for a mistrial.

Ill Sufficiency of the Evidence

The appellant’s final contention is that the evidence adduced at his trial was insufficient to sustain his conviction. "The test of the sufficiency of the evidence has been established as being whether the evidence either shows directly, or supports a rational inference of, the facts to be proved, from which the trier of fact could fairly be convinced beyond a reasonable doubt, of the defendant’s guilt of the offense charged.” Metz v. State, 9 Md. App. 15, 20, 262 A.2d 331 (1970). In the instant case, the appellant was identified as the man who came to the front door of the jewelry store and stood there for .perhaps a minute or more while the robber inside the store, with gun in hand, attempted to open the door to admit him. After the wounding of Mr. Sheppard, the gunman and the appellant stood together outside the store for a moment or two, as if conferring. He and the gunman then fled the scene of the crime. When the appellant was arrested, he was carrying an empty briefcase and a loaded revolver. His explanation for carrying the revolver, i.e., that he had neglected to remove it from his coat after work, was impeached by his prior statement to Mr. Monk that he was unemployed prior to and at the time of the attempted robbery. If the jury chose to believe Monk’s testimony, then the appellant’s false testimony at trial could ■ be considered by the jury as evidence of scienter, or guilty knowledge. See, King v. State, 201 Md. 303, 309, 93 A.2d 556 (1953); Hayette v. State, 199 Md. 140, 145, 85 A.2d 790 (1952); Marini v. State, 30 Md. App. 19, 30, 351 A.2d 463, cert. denied, 277 Md. 739 (1976); Carter v. State, 10 Md. App. 50, 55, 267 A.2d 743 (1970). The evidence presented, particularly the victims’ testimony concerning the appellant’s appearance and behavior outside the jewelry store door, established considerably more than his mere presence at the scene of the crime. Cf., In Re Appeal No. 504, 24 Md. App. 715, 725, 332 A.2d 698 (1975); Woodard v. State, 16 Md. App. 300, 304, 295 A.2d 789 (1972). We hold there was sufficient evidence for the jury to rationally infer the appellant’s criminal intent.

Judgments affirmed. Appellant to pay the costs.

      . For further discussion of Massiah v. United States, see State v. Blizzard, 278 Md. 556, 366 A.2d 1026 (1976).

        . Cf., Leuschner v. State, 41 Md. App. 423, 397 A.2d 622, cert. denied, 285 Md. 731, cert. denied, 444 U.S. 933 (1979) (undercover police officer, posing as a wanted criminal, placed in defendant’s jail cell to listen for incriminating admissions; held: no violation of defendant’s Sixth Amendment rights where officer testified that he asked defendant no questions and that defendant’s statements were "volunteered.”)

      . While the jury was out of the courtroom, defense counsel stated: "[I]t never occurred to me that when I took him up to the Department of Parole and Probation, and when he went himself, that this was going to be occurring.”

      . In determining that Monk’s testimony was admissible, the trial court relied upon Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975), and Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), which hold that evidence which, under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), is inadmissible in the government’s case in chief as substantive evidence of guilt, may nevertheless be used for impeachment purposes when the accused takes the stand.
      In Hass, the Supreme Court stated:
      "This case presents a variation of the fact situation encountered by the Court in Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971): When a suspect, who is in the custody of a state police officer, has been given full Miranda warnings and accepts them, and then later states that he would like to telephone a lawyer but is told that this cannot be done until the officer and the suspect reach the station, and the suspect then provides inculpatory information, is that information admissible in evidence solely for impeachment purposes after the suspect has taken the stand and testified contrarily to the inculpatory information, or is it inadmissible under the Fifth and Fourteenth Amendments?” (footnote omitted). 420 U.S. at 714-15.
      "As in Harris, it does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that 'the trustworthiness of the evidence satisfies legal standards.’ 401 U.S., at 224, 91 S.Ct., at 645. Again, the impeaching material would provide valuable aid to the jury in assessing the defendant’s credibility; again, 'the benefits of this process should not be lost,’ id., at 225, 91 S.Ct., at 645; and again, making the deterrent-effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief. If all this sufficed for the result in Harris, it supports and demands a like result in Hass’ case. Here, too, the shield provided by Miranda is not to be perverted to a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.” 420 U.S. at 722.
      The principles set forth in Harris and Hass, that evidence otherwise inadmissible under the Fifth Amendment may be used for impeachment purposes, has also been applied by the Supreme Court to evidence otherwise inadmissible under the Fourth Amendment. See, United States v. Havens, 446 U.S. 620, 100 S. Ct. 1912, 64 L. Ed. 2d 559 (1980); Walder v. United States, 347 U.S. 62, 74 S. Ct. 354, 98 L. Ed. 503 (1954).
      In all of these cases the trial judge had given an instruction limiting the use of the testimony to impeachment purposes. It would appear that the same reasoning which was applied to admit the impeaching evidence would also permit its use as substantive evidence if that question had been before the Court in those cases, assuming of course, the accused first denied having made the statements. We need not and do not rest our decision on this basis.


author: Moore, J.,

text:
    MAX SAMPSON et ux. v. JOHN McADOO et ux.
    [No. 600,
    September Term, 1980.]

      Decided February 5, 1981.

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

      Max Sampson for appellants.

      Jerome C. Schaefer, with whom were Hanson, O’Brien, Bimey & Butler on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

The defaulting executory vendees of improved residential property located in the District of Columbia brought suit against the vendors for the recovery of a $5,000 deposit. The court (Mitchell, J.) granted the plaintiffs’ motion for summary judgment, finding that the vendors had failed to forfeit the deposit under an option contained in the contract of sale. For the reasons stated, we reverse.

I

The contract between the parties was entered into on May 19,1978, and provided for the purchase and sale of premises known as 1417 Longfellow St., N.W., Washington, D.C. for the sum of $124,000. The purchasers-appellees were to pay $24,800 at settlement and to place a conventional first deed of trust for $99,200 at the lowest obtainable rate of interest. The contract was contingent upon the ability of the purchasers to secure the first deed of trust loan. The purchasers made a deposit in the sum of $5,000. By an addendum to the contract, it was agreed that the deposit would be placed in an interest-bearing escrow account at the National Bank of Washington in the name of one of the vendors, Max Sampson, an attorney, as escrow agent.

Paragraph 12 of the contract provided:

"12. FORFEITURE OF DEPOSIT/LEGAL REMEDIES. If the Purchaser shall fail to make full settlement, the deposit herein provided for may be forfeited at the option of the Seller, in which event the Purchaser shall be relieved from further liability hereunder, unless the Seller elects not to forfeit the deposit and notifies the Purchaser and the Agent in writing within 30 days from the date provided for settlement herein of his election to avail himself of any legal or equitable rights which he may have under this contract, other than the said forfeiture. * * *”

Settlement under the contract was to take place within 75 days, or not later than August 3, 1978. However, it does not appear that settlement was scheduled by the sellers on or before the latter date. On August 7, 1978, the purchasers, through an agent, informed the sellers that they would be unable to settle because they had not obtained the necessary financing, and that "they wanted out of the contract.” The agent was told by one of the sellers, Joan B. Sampson, that the purchasers "would not get their deposit back.”

By letter to the purchasers dated August 9, 1978, the sellers stated, in part:

"Since we were informed on Monday, August 7, 1978, (l)-that your loan commitment from Advance Mortgage Corporation is contingent Upon the sell [sic] of your Columbia, Md., home for a certain amount, and (2) that you are having some difficulty finding a buyer for your Columbia home, we are, with your consent unless you inform us within 72 hours after receipt of this letter that you do not wish us to do so, placing our home at 1417 Longfellow St. on the market for purposes of securing a back-up contract. If we should secure such a back-up sales contract, you will be notified and will have 72 hours in which to ratify and finalize the sales contract between us. If you do not so radify [sic] and finalize the sales contract within 72 hours of notification, the contract between us will be void.”

On August 17, 1978 the sellers entered into a contract with another purchaser, Mr. Norbert Meister, for the sale of their house for $124,000 — the same price as that specified in the contract with the appellees. Settlement under this contract took place on October 4, 1978.

The record reveals that the McAdoos requested, through their agents, the return of their $5,000 deposit from the Sampsons. The latter refused to do so. Thereafter, on January 24, 1979, the McAdoos filed suit in the District Court of Maryland for Montgomery County for the return of their $5,000 deposit. Upon appellants’ request for a jury trial, the case was transferred to the Circuit Court for Montgomery County. On March 20, 1979, the appellants filed a plea and counterclaim. The counterclaim was comprised of three separate claims. In the first, the appellants stated:

"Defendants ask the court to issue an order declaring that the defendants are entitled to the forfeiture of plaintiffs deposit in the sum of $5,000, pursuant to sections 3-401 to 3-403 [declaratory judgment actions] of the Annotated Code of Maryland, Courts and Judicial Proceedings Article.”

The second counterclaim alleged damages in the amount of $5,000 for the appellees’ failure to proceed to closing, and the third counterclaim alleged fraud with no damages specified.

On September 10,1979, the appellees moved for summary judgment. In the motion, the appellees stated, inter alia, that they were entitled to the recovery of their $5,000 deposit since the appellants "failed to forfeit the deposit under PARAGRAPH 12 of the contract between the parties.” In opposition, the appellants argued that under the law of the District of Columbia, applicable here, no written notice of forfeiture was required by the vendors, and that the record revealed sufficient acts of forfeiture so as to give the appellees notice of the forfeiture. On January 25, 1980, the court granted appellees’ motion for summary judgment, finding the evidence before it "meager” and "insufficient to allow the court to infer that actions legally sufficient to constitute a forfeiture were ever committed.” This appeal followed the denial of appellants’ motion to set aside the summary judgment.

II

In determining whether appellees’ motion for summary judgment was properly granted, we turn to District of Columbia case law with respect to forfeitures, as did the court below. Initially, we observe that the appellees admit, "for the purposes of this brief and argument,” that they were guilty of "anticipatory breach” of the contract herein as of August 7, 1978; and, therefore, they are faced with the fundamental principle that "one who breaches his contract has no right to demand return of that which he has paid under it if the other party is not in default.” Schwartz v. Rettger, 83 A.2d 279, 280 (D.C. Mun. App. 1951).

Forfeiture provisions of the type involved in this case are valid and enforceable in the District of Columbia. Sheffield v. Paul T. Stone, Inc., 98 F.2d 250 (D.C. Cir. 1938); Brodsky v. Linder, 118 A.2d 803 (D.C. Mun. App. 1955). The forfeiture provision in the instant case provided, in part, that "[i]f the Purchaser shall fail to make full settlement, the deposit herein provided for may be forfeited at the option of the Seller. ...” (Emphasis added.) "Forfeit” as used in such contract provisions is not used in the same sense as a penalty but means "to keep as liquidated damages and call the contract off.” E.g., Schwartz, supra, 83 A.2d at 280.

It is also clear that upon a buyer’s breach, one of three remedies may be available to the innocent seller: 1) an action in equity for specific performance; 2) a suit at law for damages based upon breach of contract; and 3) forfeiture of the deposit under an optional forfeiture clause. Sheffield, supra, 98 F.2d at 252. However, there must be an election of remedies and, as stated in Sheffield, the injured parties "cannot be permitted to make [the] choice between liquidated and actual damages after they have determined which are the greater; for the intent of the option clause is not to give them that advantage, but to make it unnecessary for them to ascertain actual damages.” Id.

It is undisputed that the Sampsons did not avail themselves of the actual damages remedy because they did not notify the purchasers in writing within 30 days from the date provided for settlement, as required by paragraph 12 of the contract. Neither was specific performance of the contract available because of their prompt resale of the house.

The question, therefore, is whether the appellants successfully pursued their option to forfeit (keep as liquidated damages) the $5,000 deposit. If they did not, they must return the deposit. The statements made with respect to the alleged forfeiture as contained in the appellants’ depositions and affidavits which were before the Lower court are interpreted differently by the parties herein. Basically, the appellants argue that Mrs. Sampson’s statement to the appellees’ agent that "the McAdoos would not get their deposit back” was a sufficient declaration of forfeiture. The Sampsons did, indeed, retain the deposit, despite numerous requests for its return.

The appellees, on the other hand, point to language in the deposition of Max Sampson where he stated that he did not know what date the deposit was forfeited and that regarding his actions in claiming a forfeiture, "there was no overt act.” Although we conclude that the lower court erred in finding no forfeiture and therefore, shall reverse, we do so for reasons unrelated to the appellants’ alleged oral declaration of forfeiture.

An examination of the District of Columbia cases reveals that a forfeiture need not be written or in any particular form. The cases suggest, however, that mere retention of a deposit, without more, is not enough. In Sheffield v. Paul T. Stone, Inc., 98 F.2d 250 (D.C. Cir. 1938), the court noted that the seller, upon the buyer’s breach, chose to establish actual damages by selling the house to third persons, and to hold the buyers for the damages established. The court went on to state, "[t]hey [the sellers] had never expressed, and apparently had never formed, an intention to 'forfeit’ the deposit as liquidated damages. They not only expressed an intention to collect actual damages but proceeded to fix their amount, if any, by a resale of the house.” In Campanella v. Diener, 122 A.2d 772 (D.C. Mun. App. 1956), the court observed that the parties conceded that the seller "declared” no forfeiture: see also Schwartz v. Rettger, 83 A.2d 279 (D.C.

Mun. App. 1951), There is thus the need for some manifestation of an election to forfeit; and this is consistent with the previously noted rule that an innocent seller must make his choice between a forfeiture and actual damages prior to a determination of damages.

Moreover, we observe that Maryland case law, similar in other respects to District of Columbia law regarding such provisions (as specifically noted in Schwartz v. Rettger, supra, 83 A.2d at 280), requires that a seller, before establishing complete ownership of a deposit, "must as a condition precedent declare a forfeiture. In other words, until the sellers actually forfeit the deposit, the contract vendors ... have no ownership in ... [the deposit] ... because the mere default or breach by the purchaser does not of itself, operate as a forfeiture.” (Emphasis added.) Casey v. Jones, 275 Md. 203, 206, 339 A.2d 33, 35 (1975); Chasanow v. Willcox, 220 Md. 171, 151 A.2d 748 (1959). In Chasanow, the Court of Appeals stated:

"If, when he [the purchaser] defaulted, the seller had notified the purchaser of his intent to forfeit the deposit and had thereafter done so as the broker had requested the seller to do, there is no doubt that the seller could have kept the deposit as liquidated damages under the terms of the contract, and the purchaser’s right k> a refund of the deposit would have terminated. See Spellman v. Dundalk Co., 1933, 164 Md. 465, 165 A. 192; Annotation, 31 A.L.R.2d 8, 37 (1953); 91 C.J.S. Vendor and Purchaser § 139b(l). See also Asher v. Hull, 1952, 207 Okl. 478, 250 P.2d 866. But when the seller — or his broker for him — retains the deposit without forfeiting it and thereafter resells the property to another purchaser at the same price it had been sold to the original purchaser, the mere retention of the deposit does not amount to an election to forfeit it. See Sheffield v. Paul T. Stone, Inc., 1938, 68 App. D.C. 378, 98 F.2d 250. Cf. Barnette v. Sayers, 1923, 53 App. D.C. 169, 289 F. 567.” (Emphasis added.)

Chasanow, supra, 220 Md. at 177, 151 A.2d at 751.

Thus, recognizing that some act which specifically establishes a forfeiture is required before a vendor may be held to have forfeited the deposit, we conclude that the act was accomplished in the instant case when the Sampsons filed their counterclaim in response to the suit brought by the McAdoos for return of the deposit. We reach this conclusion after a careful examination of the District of Columbia cases where the filing of suit by the seller for the recovery of the deposit, without more, has been held sufficient to constitute a declaration of forfeiture. For example, in Brodsky v. Linder, 118 A.2d 803 (D.C. Mun. App. 1955), the lower court found that the seller had elected to declare a breach of contract and sue for damages. The Municipal Court of Appeals disagreed, based upon the complaint filed by the seller:

"It is true that at the end of the complaint plaintiff alleged that she had been 'damaged by defendants’ breach of contract,’ but in the body of the complaint it was made quite plain that the suit was based on the forfeiture clause of the contract, and that plaintiff claimed that a forfeiture had been worked by defendants’ default and that they should be required to pay the amount of the dishonored check.” (Emphasis added.)

Id. at 805. Accord, Brook Haven, Inc. v. Silverman, 120 A.2d 591, 592 (D.C. Mun. App. 1956) (court looked to pleadings in determining election of forfeiture).

Finally, we note that Casey v. Jones, 275 Md. 203, 339 A.2d 33 (1975), supra, which supports the McAdoos’ position that a manifestation of forfeiture is required, is not at odds with our conclusion here that such a manifestation by the seller may be in the form of the filing of suit, by counterclaim or otherwise. In Casey, the broker sued the defaulting purchaser to obtain payment for a check given as a deposit on a land sale. The sellers had not declared a forfeiture in any manner. Since there had been no forfeiture of the deposit, the court held that the broker "has no such recognizable interest as to entitle him to maintain this suit on the check.” Id. at 207, 339 A.2d at 36.

We conclude, therefore, that the assertion of a forfeiture in the Sampsons’ counterclaim was, under the facts and circumstances herein, a sufficient declaration of forfeiture and that the court should have granted summary judgment to the Sampsons under Maryland Rule 610 (d) (1).

Judgment reversed; case remanded for entry of summary judgment for appellants; costs to be paid by appellees.

      . In their Statement of Claim, the appellees alleged that the contract was contingent upon their ability to obtain the requisite mortgage financing and despite diligent efforts, they were unsuccessful. This theory of recovery does not appear to have been pressed in the hearing below.

      . On September 24,1979, the appellants amended their counterclaim by deleting the claim for damages. Of course, under the contract, the damage remedy could not have been pursued because the sellers had not given the purchasers written notice, under paragraph 12, within 30 days of the settlement date, of their intention to do so.

      . Sampson’s explanation for his statements was that he was answering this particular line of questioning with reference to a forfeiture of the contract in general and not to a forfeiture of the deposit.

      . A simple statement by the seller that he will not return the deposit is insufficient to amount to a declaration of forfeiture. Such a statement is entirely consistent with an intention to seek damages and to apply the deposit toward the discharge of the purchaser’s obligation. See Sheffield v. Paul T. Stone, Inc., 98 F.2d 250 (D.C. Cir. 1938).

      . We do not think any prejudice to the appellees resulted by the filing of the counterclaim in March 1979 — over seven months after their breach of contract — especially when the McAdoos knew, or should have known, based upon paragraph 12, that no other remedy was available to the Sampsons after thirty days had elapsed from the contemplated settlement date of August 3 and because specific performance was impossible after the resale.

      . We do not reach the question whether the general issue plea would itself be sufficient.


text:
    GREGORY NEAL LEACH v. STATE OF MARYLAND
    [No. 633,
    September Term, 1980.]

      Decided February 5, 1981.

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

      Patrick D. Hanley, Assigned Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Sam Brave, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Gregory Neal Leach, appellant, was charged with murder and tried before a jury in the Criminal Court of Baltimore. The jury was unable to agree upon a verdict and a mistrial was granted. Appellant was thereupon tried a second time and on April 2, 1980, was convicted by a jury of first degree murder. The presiding judge imposed a life sentence and from that judgment, defendant appeals. Appellant raises nine issues to be decided by this Court:

I. Did the trial court err in prohibiting appellant from using an inculpatory statement of a third party in his defense?

II. Did the trial court err in admitting into evidence statements made by appellant to Los Angeles, California police officers?

III. Did the trial court err by refusing to strike a juror who was a former schoolmate and neighbor of a state’s witness?

IV. Did the trial court err in refusing to grant a short continuance to allow appellant to be examined by a medical doctor for a stomach disorder?

V. Did the trial court err in refusing to grant a mistrial for misconduct by the State?

VI. Did the trial court err in refusing to grant appellant’s requested instructions on malice and the weight to be given police testimony?

VII. Did the trial court err by allowing the jury to be separated and return to their homes after they had started their deliberations?

VIII. Did the trial court abuse its discretion in reading unrequested portions of appellant’s testimony to the jury?

IX. Did the trial court err by denying appellant’s motion for a judgment of acquittal because the evidence was insufficient?

We believe that a brief recitation of the facts of this case will be useful in placing the legal issues in proper perspective. On March 9, 1979, the police discovered the badly decomposed body of Essie May Robinson, appellant’s mother-in-law, at 20 North Morley Street in Baltimore City, where appellant resided at the time. An assistant State medical examiner determined that the deceased had died from multiple stab wounds. Approximately one week after the discovery of the body, an unidentified male approached Officer Keith Teidemann and told him that one Rochelle West, who lived at 8 North Morley Street, had approached him and said she needed money to get out of town because she had killed somebody on Morley Street. This information was related to a detective on the homicide unit who prepared a report (apparently erroneous) in which he stated that the information had been given to Officer Teidemann by Rochelle West herself. The report was then relayed to an officer who had been assigned to investigate the homicide at 20 North Morley Street.

At trial, Officer David Enlow of the Los Angeles Police Department testified that on March 26,1979, while on duty, appellant approached him and stated, "Officer, I am in big trouble, I killed my wife’s mother.” Officer Enlow thereupon placed appellant under arrest and detained him in a police cruiser. Officer Carlo Greco, Enlow’s partner, testified that while transporting appellant to the police station appellant told him that he had cut the victim in Baltimore and that she was living at 20 North Morley Street. Upon arrival at the police station, appellant furnished his name, date of birth and other statistical information. Officer Greco then telephoned the Baltimore City Homicide Unit and upon learning that appellant was wanted in Baltimore, he administered the Miranda rights to appellant. No additional statements were made by appellant to the Los Angeles Police.

I.

Prior to the beginning of the trial, the State filed a motion in limine to prohibit the defense from producing any testimony concerning the alleged statement by Rochelle West and to preclude the defense from using the statement for impeachment purposes. The trial judge’s decision to grant the State’s motion is the subject of the first issue on appeal. Assuming the question is before us, we find no error in this ruling. Appellant relies on Jacobs v. State, 45 Md. App. 634, 415 A.2d 590 (1980), which gives an exhaustive review of the evidentiary status of declarations against penal interests. The principles governing such declarations were stated as follows:

We begin with the principle that declarations against interest are admissible as exceptions to the rule against hearsay. A limitation is placed on that principle, exempting declarations against penal interest from the admissible category. The latter-day exceptions to that limitation are that such declarations against penal interest will be admissible where there is "no evidence of collusion” and where the declaration is "not on its face obviously untrustworthy.” \Emphasis supplied.] 45 Md. App. at 651.

The trial court found the alleged declaration by West against her penal interest to be untrustworthy and therefore inadmissible for three reasons: first, because West was available to testify at trial; secondly, because the statement was ambiguous; and third, because the alleged informant had never been identified. In addition, West took the stand at the suppression hearing and denied ever making such a statement. The Court of Appeals held in Brady v. State, 226 Md. 422, 174 A.2d 167 (1961) that the initial determination as to the trustworthiness of evidence must be made by the trial court.

In this case the trial court was asked to admit third or fourth level hearsay. The chain of individuals involved in the alleged hearsay was as follows: (1) Rochelle West purportedly made a confession to an unknown person; (2) the unknown person then told Officer Teidemann about West’s statement; (3) Teidemann then reported this statement to Detective Brown; (4) Brown reduced this information to a written report and relayed it to the first investigator, Detective Willis, who then gave it to the acting investigator, Detective O’Brien. At trial, defense counsel argued that he should have been permitted to call Officer Teidemann to the stand to testify as to the alleged statement made to him by the unidentified informant. Had the officer been permitted to testify as to the alleged statement- by West against her penal interest, the statement could not have been tested either by oath or cross-examination. In addition, the statement was not sufficiently identified with the murder of the victim. We conclude that the trial judge’s dissatisfaction with the trustworthiness of the statement was adequately stated in his summation of his reasons for granting the State’s motion:

But let’s go one step further. What do we have in the statement? The law says that a confession by one other than the Defendant that he committed the crime in question — and I emphasize committed the crime in question — should be received and considered by the trier of the guilt of the accused unless also clearly conclusive, frivolous or otherwise untrustworthy.
Do we have a confession that the person committed the crime in question? At best, we have that someone came to someone else and the someone is allegedly Rochelle West and stated she had to get money and get out of town because she killed someone on Morley Street.
Now, we have got to infer that the address on Morley Street is the same address in the instant case and we’ve got to assume or infer or accept that the person she killed was in fact the person that was killed on that date or at that time. There’s no date given, no time, no address and no person. So, we’ve got a question of who this Rochelle West killed if we accept the statement of this unknown person. Who she killed, when she killed them, where she killed them — Morley Street is a large street — and under what circumstances.
So, first of all, do we have a confession, and I don’t think we have anything that relates to this case that a person says that they did commit the crime in question. The fact that she killed somebody and there’s no question — or someone on a certain street, when, where, under what circumstances no one knows.

We have considered the sub parts of the arguments made in support of appellant’s initial contentions in this case and find no merit in them.

II.

We find no error in the trial court’s ruling on the admissibility of the oral statements made by appellant to the Los Angeles police. It is clear from our review of the record that the initial statement made to Officer Enlow by appellant was not the result of an interrogation by the officer; rather, it was freely and voluntarily offered by the appellant. Likewise, the second statement in question made to Officer Greco while transporting appellant to the station was also a spontaneous utterance made freely and voluntarily by appellant. No interrogation was being conducted during the transportation. Appellant further contends that he was not advised of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966) until after the Los Angeles police had completed an interview card in which they obtained from appellant his name, address, date of birth and other statistical information. He suggests that the police were able to locate the corpus delicti of the crime because of the identification information solicited from appellant. In his view, this tainted the original statements offered by appellant to Officers Enlow and Greco. We do not agree.

It is clear to us that the statements made in California were not the result of custodial interrogation and were therefore admissible into evidence. The test was enunciated by the Supreme Court in Miranda v. Arizona, supra, and is stated as follows: See also Leuschner v. State, 41 Md. App. 423, 397 A. 2d 622 (1979), cert. denied, 285 Md. 731 (1979), cert. denied, 444 U.S. 933 (1980), reh. denied, 444 U.S. 1027 (1980). The argument that the completion of the interview cards somehow tainted appellant’s voluntary statements is without merit. We have held in Maryland that information obtained from routine identification questioning will not affect the admissibility of statements challenged under the Miranda exclusionary rule. See Grimes v. State, 44 Md. App. 580, 409 A.2d 767 (1980).

... the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. 384 U.S. at 444.

III.

One of the witnesses called by the State was Homicide Detective Leonard Willis, who had initially been assigned to this case. Detective Willis provided the foundation for the introduction of photographic evidence used in this case. In addition to foundation testimony, Willis expressed an opinion that from droplets of blood found at the scene, the victim had traveled from the front bedroom — the bedroom in which appellant testified he was sleeping — across the hall into the rear bedroom. Willis also testified that he found a suitcase containing male clothing and bedroom slippers in the house. In opposition to this testimony, appellant contended that the suitcase had been planted there by the police. Upon cross-examination the trial judge discovered that Willis had been acquainted with one of the jurors. After receiving that information, the court conducted a voir dire which disclosed that the juror had been an old schoolmate and neighbor of Detective Willis some fifteen years prior. The juror assured the court that this would not cause her to give Officer Willis’ testimony any greater weight and that her ability to fairly and impartially judge the case would not be impeded. Upon receiving these assurances, the trial court refused to strike the juror and appellant contends that failure to do so amounted to reversible error. We do not agree.

The guidelines for granting a new trial where it has been discovered that a juror has made a misstatement during voir dire examination are set out in Burkett v. State, 21 Md. App. 438, 319 A.2d 845 (1974), wherein we held:

... the grant of a new trial where information inadvertently is withheld by a juror’s failure to respond to voir dire inquiry, should be left to the sound discretion of the trial judge unless:
(a) actual prejudice to the accused is demonstrated, or
(b) the withheld information, in and of itself, gives rise to a reasonable belief that prejudice or bias by the juror against the accused is likely. 21 Md. App. at 445.

We think the same guidelines apply where a mistrial is sought because of misinformation given by a prospective juror during voir dire proceedings. The voir dire conducted by the trial judge after the discovery of her acquaintance with the police officer satisfied the judge that the failure of the juror to disclose her acquaintance during the original voir dire was inadvertent and unintentional; that the relationship between the juror and the officer was minimal and had existed in the remote past; and that the juror could still render a fair and impartial verdict. Under the circumstances, we do not believe that the facts in this case would require a disqualification for cause of the juror during the original voir dire; nor do we find any abuse of discretion by the trial judge in refusing to strike the juror after the case had begun or to grant a mistrial. See Mills v. State, 12 Md. App. 449, 279 A.2d 473 (1971).

IV.

Appellant next contends that on the fourth day of trial, after the State had rested its case, defense counsel advised the court that appellant had a stomachache and requested a continuance over the weekend. The court denied the request, and we find no reversible error. There is evidence in the record that later that day the prosecution requested a suspension of cross-examination until the following day, defense counsel then advised the court that appellant "would rather go through the whole thing.” It is well established that the allowance or denial of a continuance is within the sound discretion of the trial court and that a conviction will not be reversed on these grounds unless there has been a clear abuse of discretion. See Avery v. State, 15 Md. App. 520, 292 A.2d 728 (1972). In this case we find nothing in the record to suggest that, notwithstanding his stomachache, appellant’s ability to testify on his own behalf or to cooperate with his counsel was impaired during the extended direct and cross-examination.

V.

At trial, the State attempted to offer into evidence the police report filed by Los Angeles Police Officer Greco after Officer Greco had already testified on direct and cross-examination. Defense counsel vigorously objected and the State withdrew its offer of the report. Appellant contends that this amounted to prosecutorial misconduct because it caused the jury to believe that some important evidence was being withheld from them, and defense counsel moved for a mistrial. The State offered the report, the defense objected, and the State thereupon withdrew its offer. There is nothing in the sequence of these events which even remotely amounts to prosecutorial misconduct. We have held on numerous occasions that the granting of a mistrial rests solely within the discretion of the trial judge. The refusal to grant a mistrial should not be reversed unless it is clear that the failure to do so would result in prejudice to the moving party. Smith v. Director, Patuxent Institution, 27 Md. App. 618, 342 A.2d 334 (1975); Baldwin v. State, 5 Md. App. 22, 245 A.2d 98 (1968). We find no merit in appellant’s contention that the State was guilty of prosecutorial misconduct in utilizing information covered by psychiatric privilege and, therefore, find no error in the trial judge’s refusal to grant a mistrial.

VI.

As a sixth ground for reversal, appellant contends that the trial judge erred in his refusal to give requested instructions as to the issues of malice and the weight to be given to police testimony. We find no error in these rulings. At the conclusion of the final jury instructions, defense counsel approached the bench and said, "Shouldn’t you have mentioned something about malice, Your Honor, in the charge with regard to murder?” Counsel then asked the court "to give them the definition that is necessary.” The trial judge refused the request on the basis that his instruction adequately covered the definition of first degree murder. In this case the trial judge generally instructed the jury that:

Murder in the first degree is the wilful, deliberate and premeditated killing of a human being without excuse, justification or mitigation.

The term "malice” has been defined in the context of murder as encompassing three distinct aspects. It denotes (1) that the act which produces the homicide is intentional; (2) that the act be without justification or excuse; and (3) that the act be unmitigated. Evans v. State, 28 Md. App. 640, 349 A.2d 300 (1975), aff'd, 278 Md. 197, 362 A.2d 629 (1976). However, before a trial judge is required to define specifically the terms "justification, excuse, or mitigation,” there must be a legitimate jury issue as to those matters. Evans, supra, at 665. Appellant’s defense was that he did not kill his mother-in-law but that she was killed in their home by an intruder. The judge made it clear in his instructions to the jury that in order to find the appellant guilty of first-degree murder, the homicide must have been intentional, willful, deliberate and premeditated. The existence of intent coupled with the other aforesaid elements is sufficient to establish malice (if believed by the jury).

As to the refusal of the trial judge to instruct the jury with respect to the weight to be given to the police testimony, our independent review of the record convinces us that the trial court’s detailed instructions as to the credibility of witnesses fairly covered the requested instruction.

VII.

Appellant next contends that the trial court erred by permitting the jury to separate and return to their homes after they had started their deliberations. In Maryland, the law regarding the separation of the jury is governed by both statute and common law. Under Md. Cts. & Jud. Proc. Code Ann. Section 8-304, the separation of jurors in criminal cases rests with the discretion of the trial court:

The jurors sworn to try a criminal act may, at any time before the submission of the case to the jury, in the discretion of the court, be permitted to separate or may be kept in charge of proper officers. [Emphasis supplied.]

The recent case of Magwood v. State, 46 Md. App. 668, 420 A.2d 1253 (1980), provides us with a similar factual situation. In Magwood we held that it was reversible error to permit a jury in a criminal case to be separated "after the issue has been submitted to them, and before verdict, unless the record affirmatively shows that the accused has personally waived the right to require the jury to be sequestered during its deliberative process.” 46 Md. App. at 678.

In the instant case the jury retired to deliberate on March 31,1980 at 12:30 p.m. At approximately 4:15 p.m. the court reconvened out of the presence of the jury to discuss with counsel a written question sent to the judge by the jury. The written question involved a portion of the record transcript. The question then arose as to whether the jury should be sequestered or permitted to return home until the court reporter located the requested testimony in the record. The following colloquy then ensued:

[THE COURT:] We have gone through this scenario once with this case with a different jury and again at that time we agreed as of a certain time when we began to read testimony and so forth to let the jury go home and bring them back the next day to give the stenographer a chance to find the testimony and read it to them. We went through that whole procedure last time.
Mr. Leach: I understand you have talked to your attorney again and it is perfectly agreeable to you to proceed in this same manner.
Is that correct?
[THE DEFENDANT:] Yes, sir.

This statement by the judge referred to the previous trial of the accused which resulted in a mistrial because the jury was unable to agree upon a verdict. The same trial judge presided over both cases. After the accused had agreed to proceed in the aforementioned manner, the trial judge said:

THE COURT: All right. Let the record show Mr. Leach is fully aware of his rights, that he can have the jury remain in the jury room until a late hour tonight and even sequestered at a hotel until tomorrow.
We have gone through that, but he is waiving his rights and he is requesting at this time that the Court allow the jury to go home to continue deliberations — Tomorrow is going to be a holiday for everybody here. So it will be Wednesday morning.

We find no case directly on point in which the Court of Appeals has had this issue before it, but we are convinced by our reading of Kennard v. State, 177 Md. 549, 10 A.2d 710 (1940), that the Court held by implication that a separation of a jury after it has begun its deliberations is permissible provided that the defendant is aware of his right to insist that the jury remains sequestered, and the defendant knowledgeably consents to his waiver of this right. The record in this case discloses that the judge advised appellant of his right to have the jury remain sequestered and that he voluntarily acquiesced in their separation. As further evidence of appellant’s knowledgeable waiver, the record reflects that before the jury was permitted to separate, the trial judge advised the jury (in the presence of appellant and his counsel) of the following:

THE COURT: Madame Forelady and ladies and gentlemen of the jury, I have received your note here, which says, "Can someone read us portions of the defendant’s testimony regarding why he gave himself up in California.”
I am going to have the stenographer start to go over that testimony and find what he said regarding that testimony. You don’t want what the officer said. You want what he said. Is that correct?
The answer is yes. Okay. I will get his testimony.
Now, let me say this. The rules of procedure are generally that once a jury is in the jury box deliberating that they are sequestered which means they must be locked up in a room or sent to a hotel room and so forth and so on.
You are in the middle of deliberations and from what I understand, from this question you have not reached any final result in your deliberations at this time and the forelady is saying no. So you are still in the middle of deliberations.
Now, it’s been agreed with counsel rather than keep you locked up or send you to a hotel room and so forth, we are going to let you go home and come back and continue deliberations. Now, this is the thing. Tomorrow is going to be a holiday for many of us and we will not be here which means you will not return here until Wednesday morning. All right?

The trial judge then gave a lengthy precautionary instruction to the jury in which he advised them that they must not discuss the case with anyone else, including each other. Furthermore, they were instructed to refrain from considering the case in their own minds until they resumed deliberations on the following Wednesday. There was no objection to the court’s decision to permit the separation of the jury and there is no suggestion in the record that the jury disobeyed the judge’s instructions; nor is there any evidence that appellant was prejudiced because of the separation of the jury. From our independent reading of the record, we are convinced that the appellant knew that he had a right to insist that the jury remain sequestered and that he knowingly waived that right and consented to the separation of the jury.

VIII.

Appellant further contends that the trial court erred by permitting the court reporter to read unrequested portions of the transcript to the jury. He concedes that it is in the sole discretion of the trial judge to have portions of the transcript read to the jury when requested under Maryland Rule 758 c, but contends that the portion of the record read to the jury amounts to an abuse of discretion. Appellant premises his argument upon the fact that the testimony read back to the jury included unrequested, irrelevant testimony as to collateral matters. The State urges that the judge properly exercised his discretion under Rule 758 c and that the disputed testimony read to the jury related to the same factual issue upon which the jury requested the information. We agree with the State and find no evidence of abuse of discretion.

IX.

Appellant’s final contention is that the evidence adduced at the trial was insufficient to sustain his conviction. The proper test for sufficiency of evidence was established by this Court in Metz v. State, 9 Md. App. 15, 262 A.2d 331 (1970), wherein we held:

The test of the sufficiency of the evidence has been established as being whether the evidence either shows directly, or supports a rational inference of, the facts to be proved, from which the trier of fact could fairly be convinced beyond a reasonable doubt, of the defendant’s guilt of the offense charged. 9 Md. App. at 20.

Without reciting the evidence, our independent review of the record convinces us that there was more than sufficient evidence to sustain the verdicts rendered by the jury.

Judgment affirmed, costs to be paid by appellant.

      . See Offutt v. State, 44 Md. App. 670, 677, 410 A.2d 611, 615 (1980); Lapelosa v. Cruze, 44 Md. App. 202, 206-07, 407 A.2d 786, 789 (1979).

      . Cf. Midgett v. State, 223 Md. 282, 164 A.2d 526 (1960), where the Court of Appeals held that a failure to object at trial to the absence or sufficiency of an admonition to the jury but prior to submission amounted to a waiver. See also Jamison v. State, 304 P.2d 371 (Okl. Cr. 1956) where it was held that the right to have the jury remain together after they had begun deliberations may be waived by consent. In Mason v. State, 239 Ga. 538, 238 S.E.2d 79 (1977), it was held that a jury could be separated in a capital case with the consent of the defendant. In Tribe v. District Court in and for the County of Larimer, 593 P.2d 1369 (Colo. 1979), it was held that in the absence of a valid waiver by the accused, a jury was required to be sequestered in a first-degree murder case.

      . See also Veney v. State, 251 Md. 182, 246 A.2d 568 (1968); Bing Fa Yuen v. State, 43 Md. App. 109, 403 A.2d 819 (1979).


author: Gilbert, C. J.,

text:
    LISA MARIE STEVENS, infant, etc. v. UNION MEMORIAL HOSPITAL et al.
    [No. 676,
    September Term, 1980.]

      Decided February 5, 1981.

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

      Marian V. Fleming, with whom were Henry E. Dugan, Jr., Jerome J. Seidenman and Seidenman & Dugan, P.A. on the brief, for appellants.

      Alva P. Weaver, III, with whom were Lord, Whip,

      Coughlan & Green, P.A. on the brief, for appellee Union Memorial Hospital. John F. King, with whom were Angus R. Everton and Anderson, Coe & King on the brief, for appellee Jerrie Cherry, M.D. M. King Hill, Jr., with whom were John R. Penhallegon and Smith, Somerville & Case on the brief, for appellee K. F. Rashad, M.D.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal seeks to make res ipsa loquitur viable in an alleged medical malpractice case. We are asked by the infant appellant, Lisa Marie Stevens, to hold that res ipsa loquitur has a place in medical malpractice claims, notwithstanding prior decisions by the Court of Appeals and this Court to the contrary.

—THE FACTS—

The backdrop for this appeal, as disclosed by the record, is that Lisa, then age six, was admitted to the Union Memorial Hospital in Baltimore City on November 19, 1975, for the surgical excision of her tonsils and adenoids. Lisa’s surgeon was Dr. Jerrie Cherry. Lisa’s mother accompanied the child to the doors of the operating room and, according to the mother, Lisa had no marks or scars on her face at that time. The anesthesiologist, Dr. Karim F. Rashad, did not recall seeing any marks on Lisa’s face prior to the operation. The only other persons present in the operating room in addition to Doctors Cherry and Rashad were a scrub technician and a circulating nurse.

A mask was placed over Lisa’s mouth, and the anesthesia was administered. Before the actual surgery, the mask was removed, and no marks were observed by Dr. Rashad on the child’s face. Upon removal of a mouth gag that had been employed to facilitate access to Lisa’s throat, she was discovered to have two blisters on her face. The blebs ruptured. Upon healing, noticeable scars remained. The evidence showed that an electrocauterizer was used by Dr. Cherry during the operation. The scars were claimed in the suit to be a source of anxiety and to cause emotional suffering to the young girl.

Lisa’s attorneys were cognizant to the fact that the child was unconscious during the operation and, thus, unable to relate the events that produced the blisters which resulted in the scarring. Moreover, they did not produce an expert witness who might have opined that the scars were a direct result of negligent treatment.

On oral argument, we were advised that the two nurses, who were present at the time of the operation, had not been deposed by the appellants. Moreover, neither nurse was called as a witness in the case.

We think a clear inference may be drawn from the manner in which the case was presented that the appellants attempted to mold the facts so as to fit within the framework of the doctrine of res ipsa loquitur. There is an equally pellucid inference that the appellants’ counsel sought to arm themselves for a frontal attack on the Maryland appellate precedent proscribing res ipsa loquitur in medical malpractice suits.

The case was presented to the trial judge and jury on the basis of the testimony of Lisa’s mother, excerpts from the depositions of Doctors Cherry and Rashad, and the in-court testimony of Lisa, herself.

At the conclusion of Lisa’s case, the appellees, Union Memorial, Dr. Cherry, and Dr. Rashad, all moved for a directed verdict on the ground that Lisa had not proven prima facie negligence on their part, and that res ipsa loquitur did not apply to a medical malpractice claim. In granting the motions, the trial judge commented:

"Everything that Plaintiffs Counsel argues here, very forcefully in my judgment, sets forth what is a substantial difference of opinion that other jurisdictions have with Maryland over the applicability of the doctrine of Res ipsa in situations such as we find here, but at this date, as far as I can determine from my study of the subject, it is not the law of Maryland.”

—RES IPSA LOQUITUR—

The doctrine of res ipsa loquitur is actually a rule of evidence invented by the English courts in order to permit the plaintiff in a negligence action to establish a prima facie case of negligence when he could not otherwise satisfy the traditional requirements of negligence. The rule thereby avoided a directed verdict in favor of the defendant and enabled the case to go to the jury for its deliberation. Res ipsa loquitur was originally associated with falling objects, and is grounded on the inference that the injury would not have occurred absent someone’s negligence. The justification for this special rule of evidence is "found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident.” Potts v. Armour & Co., 183 Md. 483, 488, 39 A.2d 552, 555 (1944). The rule is not applicable when it can be inferred from ordinary experience that the accident might have happened without any fault of the defendant. Id.

Under the law of this State, the following prerequisites must be fulfilled before res ipsa loquitur may be invoked:

1) The injury is of a nature that would not ordinarily occur in the absence of negligence;

2) The defendant had exclusive control of the instrument which caused the injury; and

3) The plaintiff did not contribute to the injury.

See Blankenship v. Wagner, 261 Md. 37, 273 A.2d 412 (1971); Chesapeake & Potomac Telephone Co. v. Hicks, 25 Md. App. 503, 337 A.2d 744 (1975); United States v. Chesapeake Delaware Shipyard, Inc., 369 F. Supp. 714 (D.C. Md. 1974).

Despite the efforts of the appellants to assail the ramparts of Sard v. Hardy, supra, and others, note 2, supra, their assault must be turned back because this is not a bona fíde case of res ipsa loquitur. Indeed, it is simply a case of alleged, but unproven, medical malpractice clad in the costume of res ipsa loquitur.

We reach that conclusion because of the appellants’ failure to meet the three criteria needed to invoke the doctrine upon which they seek to rely. If we assume arguendo that the appellants have satisfied the first and third prongs of the three-tined test set out above, they, nevertheless, have not sated the second prong. There is no proof that the appellees had exclusive control of the instrument which caused the injury. Although neither of the two nurses was joined as defendants in the suit, or deposed, or served written interrogatories, either or both of the nurses may have been the person or persons responsible for the injury to Lisa. We cannot assume that of the four persons present in the operating room that only one or two of them or the hospital itself is the responsible party or parties.

Appellants may not, as they have tried to do in this case, exclude possible parties defendant, and selectively tailor their discovery in order to invoke res ipsa loquitur. The appellants, had they deposed the two nurses, may have discovered the "true cause of the accident.”

Furthermore, Potts flatly holds that the rule of res ipsa loquitur is not available to a plaintiff when "it can be inferred from ordinary experience that the accident might have happened without the fault of the defendant.” Id. at 488, 39 A.2d at 555.

The facts of the instant case give rise to a rational inference, founded on ordinary experience, that when four persons other than the victim are in attendance at the happening of an accident, any one or more of the four may have caused the accident.

We think the appellants are in the position of proving too much and too little: too much for the application of res ipsa loquitur to the facts, and too little for a finding of ordinary negligence.

Judgment affirmed.

Costs to be paid by appellants.

      . A method of cauterizing tissue through the use of a platinum wire heated by a current of electricity. Steadman’s Medical Dictionary 3d (1972).

      . See, e.g., Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977); Nolan v. Dillon, 261 Md. 516, 276 A.2d 36 (1971); Johns Hopkins Hospital v. Genda, 255 Md. 616, 258 A.2d 595 (1969); State, Use of Solomon v. Fishel, 228 Md. 189, 179 A.2d 349 (1962); Lane v. Calvert, 215 Md. 457, 138 A.2d 902 (1958); Bettigole v. Diener, 210 Md. 537, 124 A.2d 265 (1956); State, Use of Kalives v. Baltimore Eye, Ear and Throat Hospital, Inc., 177 Md. 517, 10 A.2d 612 (1940); Fink v. Steele, 166 Md. 354, 171 A. 49 (1934); McClees v. Cohen, 158 Md. 60, 148 A. 124 (1930); Angulo v. Hallar, 137 Md. 227, 112 A. 179 (1920); Riffey v. Tonder, 36 Md. App. 633, 375 A.2d 1138 (1977); Hans v. Franklin Square Hospital, 29 Md. App. 329, 347 A.2d 905 (1975); Raitt v. Johns Hopkins Hospital, 22 Md. App. 196, 322 A.2d 548 (1974).

      . Byrne v. Boadle, 2 H.C. 722, 159 Eng. Rep. 299 (1863).

      . In Byrne v. Boadle, id., the plaintiffs injury was sustained after a barrel of flour rolled out of a warehouse window, striking him as he was walking past.

      . We are not to be understood as refusing to sanction the application of the doctrine of res ipsa loquitur to medical malpractice cases. The question of whether the prior holdings of the Court of Appeals and this Court are still viable will have to await another day.