author:
Thompson, J.,
      Wilner, J.,

text:
    EDWARD S. RUSK v. STATE OF MARYLAND
    [No. 1249,
    September Term, 1978.]

      Decided October 10, 1979.

    The cause was argued before Morton, Moore and Lowe, JJ., and reargued before Gilbert, C. J., and Morton, Thompson, Moylan, Moore, Lowe, Melvin, Mason, Liss, Wilner, Couch, MacDaniel and Weant, JJ.
    Argued and reargued by Ira C. Cooke, with whom were Melnicove, Kaufman & Winer, P.A. on the brief, for appellant.
    Argued and reargued by Kathleen M. Sweeney, Assistant

      Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and James Salkin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court. Wilner, J., files a dissenting opinion, in which Morton, Moylan, Moore and MacDaniel, JJ., join, at page 484 infra.

We are called upon to review the sufficiency of the evidence to convict for rape. Whatever the law may have been before, it is now clear that our standard must be: Is the evidence sufficient for a finder of fact to conclude that the accused was guilty beyond a reasonable doubt? Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979). We hold that the evidence was not sufficient. In making this review we must look at the evidence in the light most favorable to the prosecution. Jackson v. Virginia, supra; Brown v. State, 29 Md. App. 1, 21, 349 A.2d 359, 371 (1975).

Edward Salvatore Rusk, the appellant, was convicted in the Criminal Court of Baltimore of rape in the second degree and of assault. He was sentenced to concurrent terms of ten years for the rape and five years for the assault. The appellant does not challenge the conviction for assault but only for the rape. We will, therefore, affirm the assault conviction.

The prosecutrix was a twenty-one year old mother of a two-year old son. She was separated from her husband but not yet divorced. Leaving her son with her mother, she attended a high school reunion after which she and a female friend, Terry, went bar hopping in the Fells Point area of Baltimore. They drove in separate cars. At the third bar the prosecutrix met appellant.

“Terry and I were standing against the wall, and she was talking to some guy that I don’t know who he was; and Eddie Rusk walked up. I didn’t know who he was, at the time, and he said, hi to Terry; and Terry said, hi, Eddie; and Terry went back to her conversation, and he stood there talking to me.”

They had a five or ten minute conversation in the bar; at the end of which the prosecutrix said she was ready to leave. Appellant requested a ride home and she agreed. When they arrived at appellant’s home, the prosecutrix parked at the curb on the side of the street opposite his rooming house but did not turn off the ignition. She put the car in park and appellant asked her to come up to his apartment. She refused. He continued to ask her to comé up, and she testified she then became afraid. While trying to convince him that she didn’t want to go to his apartment she mentioned that she was .separated and if she did, it might cause her marital problems particularly if she were being followed by a detective. The appellant then took the keys out of the car and walked over to her side of the car, opened the door- and said, “Now will you come up?” The prosecutrix then told him she would. She stated:

“At that point, because I was scared, because he had my car keys. I didn’t know what to do. I was someplace I didn’t even know where I was. It was in the city. I didn’t know whether to run. I really didn’t think, at that point, what to do. Now, I know that I should have blown the horn. I should have run. There were a million things I could have done. I was scared, at that point, and I didn’t do any of them.”

The prosecutrix followed appellant into the rowhouse, up the stairs, and into the apartment. When they got into appellant’s room, he said that he had to go to the bathroom and left the room for a few minutes. The prosecutrix made no attempt to leave. When appellant came back, he sat on the bed while she sat on the chair next to the bed. He turned the light off and asked her to get on the bed with him. He started to pull her onto the bed and also began to remove her blouse. She stated she took off her slacks and removed his clothing because “he asked [her] to do it.” After they both undressed, prosecutrix stated:

“I was still begging him to please let, you know, let me leave. I said, ‘you can get a lot of other girls down there, for what you want,’ and he just kept saying, ‘no,’ and then I was really scared, because I can’t describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn’t know what to say; and I said, Tf I do what you want, will you let me go without killing me?’ Because I didn’t know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, ‘If I do what you want, will you let me go?’ And he said, yes, and at that time, I proceeded to do what he wanted me to.”

She stated that she performed oral sex and they then had sexual intercourse.

The appellant testified as did two of his friends who were at the bar in which the parties met. Their testimony painted the episode in a manner more favorable to the accused, but there is no need for us to recite that testimony because, as we have stated earlier, we are obligated to view the evidence in the light most favorable to the prosecution.

The Court of Appeals of Maryland last spoke on the amount of force required to support a rape conviction in Hazel v. State, 221 Md. 464, 469, 157 A.2d 922, 925 (1960), when the Court said:

"Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety.”

In all of the victim’s testimony we have been unable to see any resistance on her part to the sex acts and certainly can we see no fear as would overcome her attempt to resist or escape as required by Hazel. Possession of the keys by the accused may have deterred her vehicular escape but hardly a departure seeking help in the rooming house or in the street. We must say that “the way he looked” fails utterly to support the fear required by Hazel.

This Court has reviewed the question in a number of decisions since 1967, the most recent being Goldberg v. State, 41 Md. App. 58, 395 A.2d 1213, cert. dismissed as improvidently granted, September 18, 1979, in which we applied the Hazel rule and referred to our earlier cases applying the same rule:

“As we said in Winegan v. State, 10 Md. App. 196, 200, 201, 268 A.2d 585 (1970):
‘... [Wjhere' the victim’s story could not be corroborated by wounds, bruises or disordered clothing, the lack of consent could be shown by fear based upon reasonable apprehension. The rule requiring the apprehension be reasonable was first enunciated in Maryland in Hazel v. State, 221 Md. 464, 469, 157 A. 2d 922:
“If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force.”
'The rule of reason, as we shall call it, was reiterated, either expressly or impliedly, by us in Walter v. State, supra, [9 Md. App. 385, 264 A.2d 882 (1970)] and Rice v. State, supra, [9 Md. App. 552, 267 A.2d 261 (1970)]. It is expressly supported by several cases throughout the country. [Citations omitted]’.” 41 Md. App. at 68-9.

Appellee argues first that the issue as to whether or not intercourse was accompanied by force or threats of force is one of credibility to be resolved by the triers of the fact. We cannot follow the argument. As we understand the law, the trial judge in ruling on a motion to acquit must first determine that there is legally sufficient evidence for the jury to find the victim was reasonably in fear. That is the rule set forth in Hazel and in each of our cases cited above. Contrary to the State’s argument, there is no issue of credibility before us, because we accept the testimony that is most damaging to the accused before applying the rule. The State argues further that the evidence that the accused “started lightly to choke me” as well as the circumstances of being in a somewhat strange part of town late at night were sufficient to overcome the will of a normal twenty-one year old married woman. We are not impressed with the argument. When at oral argument it was pointed out to the State that the cases require that the fear must be reasonable, the appellee answered first that the cases so requiring were wrong and should be overruled and secondly, that a rapist took his victim as he found her. Thus, the argument goes, even though the victim was unreasonable in being afraid, that was the chance a man took in having intercourse with someone not his wife. In other words, in any situation where the victim testified that she consented because she was afraid, the verdict of the jury would be conclusive and all such cases should be submitted to the jury for consideration. Whatever appeal this argument might have in other cases, it has none here where there is nothing whatsoever to indicate that the victim was anything but a normal, intelligent, twenty-one year old, vigorous female.

Cases from other jurisdictions have followed the rule that the victim’s fear which overcomes her will to resist must be a reasonable fear. In Farrar v. United States, 275 F.2d 868 (D.C. Cir. 1959), rehearing denied 1960, the court found that the witness rested her claim of fear upon her belief appellant had a knife, yet she never saw the knife. The court stated:

“As I understand the law of rape, if no force is used and the girl in fact acquiesces, the acquiescence may nevertheless be deemed to be non-consent if it is induced by fear; but the fear, to be sufficient for this purpose, must be based upon something of substance; and furthermore the fear must be of death or severe bodily harm. A girl cannot simply say, ‘I was scared,’ and thus transform an apparent consent into a legal non-consent which makes the man’s act a capital offense. She must have a reasonable apprehension, as I understand the law, of something real; her fear must be not fanciful but substantial.” (footnotes omitted). 275 F.2d at 876.

The rule that the apprehension must be reasonable was also recognized in Gonzales v. State, 516 P.2d 592 (Wyo. 1973). The facts in Gonzales are similar, but stronger than, the facts in the instant case. There, the defendant met the victim at the bar where she was working. He asked her for a ride home and she refused. When she got into the driver’s side of her car, he got in the other side, but she did not protest. After driving for awhile, he told her to turn off on a side road, telling her that his mother lived there. He asked her to stop, and then took the keys out of the ignition. He got out of the car to go to the bathroom. She stayed in the car and made no attempt to leave or to blow her horn. He said he was going to rape her and he put his fist in her face and said, “I’m going to do it. You can’t have it one way or the other.” She took off part of her own clothes. When someone she knew passed by in a car, she made no attempt to stop him. The trial judge found the defendant guilty of rape.

The Wyoming Supreme Court reversed, stating that the trial judge applied the wrong standard in reaching the verdict. The Court quoted the above passage from Farrar v. United States, supra, and held that the trial court omitted the necessary element of reasonable apprehension. See also Tryon v. Wyoming, 567 P.2d 290 (Wyo. 1977), in which the Wyoming Court found the evidence sufficient where a twelve year old girl was involved.

Other cases have also recognized the reasonable apprehension rule. See, People v. Harris, 108 Cal. App. 2d 84, 238 P.2d 158 (1951); State v. Dill, 3 Terry 533, 42 Del. 533, 40 A.2d 443 (Court of Oyer and Terminer, 1944); Rush v. State, 301 So. 2d 297 (Miss. 1974); Cascio v. State, 25 N.W.2d 897 (Neb. Sup. Ct. 1947); and State v. Verdone, 114 R.I. 613, 337 A.2d 804 (1975), reargument denied, 114 R.I. 961. Still other cases apply the rule without discussing the reasonableness of the fear. Nelson v. Arkansas, 262 Ark. 391, 557 S.W.2d 191 (1977); People v. Taylor, 48 Ill. 2d 91, 268 N.E.2d 865 (1971); and O’Bryan v. Florida, 324 So. 2d 713 (Fla. App. 1976). Indeed, we have found no case which did not expressly or impliedly recognize the doctrine that in the absence of force, the fear of the victim must be reasonable to support a rape conviction, except perhaps Salsman v. Kentucky, 565 S.W.2d 638 (Ky. App. 1978). In that case the court stated the fear should be judged on a subjective standard when the victim was retarded. The same result, however, could have been reached by applying the objective standard. It is not necessary to apply a subjective standard in order to give weight to the mental condition or the age of the victim.

Applying this reasoning to the record before us, we find the evidence legally insufficient to warrant a conclusion that appellant’s words or actions created in the mind of the victim a reasonable fear that if she resisted, he would have harmed her, or that faced with such resistance, he would have used force to overcome it. The prosecutrix stated that she was afraid, and submitted because of “the look in his eyes.” After both were undressed and in the bed, and she pleaded to him that she wanted to leave, he started to lightly choke her. At oral argument it was brought out that the “lightly choking” could have been a heavy caress. We do not believe that “lightly choking” along with all the facts and circumstances in the case, were sufficient to cause a reasonable fear which overcame her ability to resist. In the absence of any other evidence showing force used by appellant, we find that the evidence was insufficient to convict appellant of rape.

Judgment on the rape conviction reversed.

Judgment on the assault conviction affirmed.

Appellant and the Mayor and City Council of Baltimore to divide the costs.

Wilner, J.,

dissenting:

With the deepest respect for the generally superior wisdom of my colleagues who authored or endorsed the majority Opinion, but with the equally profound conviction that, in this case, they have made a serious mistake, I record this dissent.

The majority’s error, in my judgment, is not in their exposition of the underlying principles of law that must govern this case, but rather in the manner that they have applied those principles. The majority have trampled upon the first principle of appellate restraint. Under the guise of judging the sufficiency of the evidence presented against appellant, they have tacitly — perhaps unwittingly, but nonetheless effectively — substituted their own view of the evidence (and the inferences that may fairly be drawn from it) for that of the judge and jury. In so doing, they have not only improperly invaded the province allotted to those tribunals, but, at the same time, have perpetuated and given new life to myths about the crime of rape that have no place in our law today.

The principles of law that govern this proceeding are derived, in essence, from two cases. First, in judging whether the evidence was sufficient to support the conviction, which is the only question before us, the standard is, as the majority states, that established by the Supreme Court in Jackson v. Virginia, 99 S. Ct. 2781 (1979): whether there was enough evidence for the finder of fact to conclude that appellant was guilty beyond a reasonable doubt. We look, in making that determination, to the evidence most favorable to the state, which, in this case, derives almost entirely from the testimony of the victim. That evidence must then be compared with the legal requisites for the crime of second degree rape, the crime of which appellant was convicted.

Md. Annot. Code art. 27, § 463 (a) considers three types of conduct as constituting second degree rape. We are concerned only with the first: a person is guilty of rape in the second degree if he (1) engages in vaginal intercourse with another person, (2) by force or threat of force, (3) against the will, and (4) without the consent of the other person. There is no real question here as to the first, third, or fourth elements of the crime. The evidence was certainly sufficient to show that .appellant had vaginal intercourse with the victim, and that such act was against her will and without her consent. The point at issue is whether it was accomplished by force or threat of force; and I think that in viewing the evidence, that point should remain ever clear. Consentís not the issue here, only whether there was sufficient evidence of force or the threat of force.

Unfortunately, courts, including in the present case a majority of this one, often tend to confuse these two elements — force and lack of consent — and to think of them as one. They are not. They mean, and require, different things. See State v. Studham, 572 P.2d 700 (Utah, 1977). What seems to cause the confusion — what, indeed, has become a common denominator of both elements — is the notion that the victim must actively resist the attack upon her. If she fails to offer sufficient resistance (sufficient to the satisfaction of the judge), a court is entitled, or at least presumes the entitlement, to find that there was no force or threat of force, or that the act was not against her will, or that she actually consented to it, or some unarticulated combination or synthesis of these elements that leads to the ultimate conclusion that the victim was not raped. Thus it is that the focus is almost entirely on the extent of resistance — the victim’s acts, rather than those of her assailant. Attention is directed not to the wrongful stimulus, but to the victim's reactions to it. Right or wrong, that seems to be the current state of the Maryland law; and, notwithstanding its uniqueness in the criminal law, and its illogic, until changed by statute or the Court of Appeals, I accept it as binding.

But what is required of a woman being attacked or in danger of attack? How much resistance must she offer? Where is that line to be drawn between requiring that she either risk serious physical harm, perhaps death, on the one hand, or be termed a willing partner on the other? Some answers were given in Hazel v. State, 221 Md. 464 (1960), although, as in so many cases, they were stated in the context of both the requirement of force and the lack of consent. The Court said, at pp. 469, 470:

“Force is an essential element of the crime and to justify a conviction, the evidence must warrant a conclusion either that the victim resisted and her resistance was overcome by force or that she was prevented from resisting by threats to her safety. But no particular amount of force, either actual or constructive, is required to constitute rape. Necessarily that fact must depend upon the prevailing circumstances. As in this case force» may exist without violence. If the acts and threats of the defendant were reasonably calculated to create in the mind of the victim having regard to the circumstances in which she was placed a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force....
“With respect to the presence or absence of the element of consent, it is true, of course, that however reluctantly given, consent to the act at any time prior to penetration deprives the subsequent intercourse of its criminal character. There is, however, a wide difference between consent and a submission to the act. Consent may involve submission, but submission does not necessarily imply consent. Furthermore, submission to a compelling force, or as a result of being put in fear, is not consent....
“The authorities are by no means in accord as to what degree of resistance is necessary to establish the absence of consent. However, the generally accepted doctrine seems to be that a female — who was conscious and possessed of her natural, mental and physical powers when the attack took place — must have resisted to the extent of her ability at the time, unless it appears that she was overcome by numbers or was so terrified by threats as to overpower her will to resist____Since resistance is necessarily relative, the presence or absence of it must depend on the facts and circumstances in each case____But the real test, which must be recognized in all cases, is whether the assault was committed without the consent and against the will of the prosecuting witness.
“The kind of fear which would render resistance by a woman unnecessary to support a conviction of rape includes, but is not necessarily limited to, a fear of death or serious bodily harm, or a fear so extreme as to preclude resistance, or a fear which would well nigh render her mind incapable of continuing to resist, or a fear that so overpowers her that she does not dare resist.” (Citations omitted.) (Emphasis supplied.)

From these pronouncements in Hazel, this Court has articulated what the majority refers to as a “rule of reason” —i.e., that “where the victim’s story could not be corroborated by wounds, bruises or disordered clothing, the lack of consent could be shown by fear based upon reasonable apprehension.” Winegan v. State, 10 Md. App. 196, 200 (1970); Goldberg v. State, 41 Md. App. 58 (1979). As so phrased, I do not consider this to be a rule of reason at all; it is highly unreasonable, and again mixes the element of consent with that of force. But what I do accept is what the Court of Appeals said in Hazel: (1) if the acts and threats of the defendant were reasonably calculated to create in the mind of the victim — having regard to the circumstances in which she was placed — a real apprehension, due to fear, of imminent bodily harm, serious enough to impair or overcome her will to resist, then such acts and threats are the equivalent of force; (2) submission is not the equivalent of consent; and (3) the real test is whether the assault was committed without the consent and against the will of the prosecuting witness.

Upon this basis, the evidence against appellant must be considered. Judge Thompson recounts most, but not quite all, of the victim’s story. The victim — I’ll call her Pat — attended a high school reunion. She had arranged to meet her girlfriend Terry there. The reunion was over at 9:00, and Terry asked Pat to accompany her to Fell’s Point. Pat had gone to Fell’s Point with Terry on a few prior occasions, explaining in court: “I’ve never met anybody [there] I’ve gone out with. I met people in general, talking in conversation, most of the time people that Terry knew, not that I have gone down there, and met people as dates.” She agreed to go, but first called her mother, who was babysitting with Pat’s two-year old son, to tell her that she was going with Terry to Fell’s Point, and that she would not be home late. It was just after 9:00 when Pat and Terry, in their separate cars, left for Fell’s Point, alone.

They went to a place called Helen’s and had one drink. They stayed an hour or so and then walked down to another place (where they had another drink), stayed about a half hour there, and went to a third place. Up to this point, Pat conversed only with Terry, and did not strike up any other acquaintanceships. Pat and Terry were standing against a wall when appellant came over and said hello to Terry, who was conversing with someone else at the time. Appellant then began to talk with Pat. They were both separated, they both had young children; and they spoke about those things. Pat said that she had been ready to leave when appellant came on the scene, and that she only talked with him for five or ten minutes. It was then about midnight. Pat had to get up with her baby in the morning and did not want to stay out late.

Terry wasn’t ready to leave. As Pat was preparing to go, appellant asked if she would drop him off on her way home. She agreed because she thought he was a friend of Terry’s. She told him, however, as they walked to her car, “I’m just giving a ride home, you know, as a friend, not anything to be, you know, thought of other than a ride.” He agreed to that condition.

Pat was completely unfamiliar with appellant’s neighborhood. She had no idea where she was. When she pulled up to where appellant said he lived, she put the car in park, but left the engine running. She said to appellant, “Well, here, you know, you are home.” Appellant then asked Pat to come up with him and she refused. He persisted in his request, as did she in her refusal. She told him that even if she wanted to come up, she dared not do so. She was separated and it might cause marital problems for her. Finally, he reached over, turned off the ignition, took her keys, got out of the car, came around to her side, opened the door, and said to her, “Now, will you come up?”

It was at this point that Pat followed appellant to his apartment, and it is at this point that the majority of this Court begins to substitute its judgment for that of the trial court and jury. We know nothing about Pat and appellant. We don’t know how big they are, what they look like, what their life experiences have been. We don’t know if appellant is larger or smaller j;han she, stronger or weaker. We don’t know what the inflection was in his voice as he dangled her car keys in front of her. We can’t tell whether this was in a jocular vein or a truly threatening one. We have no idea what his mannerisms were. The trial judge and the jury could discern some of these things, of course, because they could observe the two people in court and could listen to-what they said and how they said it. But all we know is that, between midnight and 1:00 a.m., in a neighborhood that was strange to Pat, appellant took her car keys, demanded that she accompany him, and most assuredly implied that unless she did so, at the very least, she might be stranded.

Now, let us interrupt the tale for a minute and consider the situation. Pat did not honk the horn; she did not scream; she did not try to run away. Why, she was asked. “I was scared. I didn’t think at the time what to do.” Later, on cross-examination: “At that point, because I was scared, because he had my car keys. I didn’t know what to do. I was someplace I didn’t even know where I was. It was in the city. I didn’t know whether to run. I really didn’t think, at that point, what to do. Now, I know that I should have blown the horn. I should have run. There were a million things I could have done. I was scared, at that point, and I didn’t do any of them.” What, counsel asked, was she afraid of? “Him,” she replied. What was she scared that he was going to do? “Rape me, but I didn’t say that. It was the way he looked at me, and said, ‘Come on up, come on up;’ and when he took the keys, I knew that was wrong. I just didn’t say, are you going to rape me.”

So Pat accompanied appellant to his apartment. As Judge Thompson points out, appellant left her in his apartment for a few minutes. Although there was evidence of a telephone in the room, Pat said that, at the time, she didn’t notice one. When appellant returned, he turned off the light and sat on the bed. Pat was in a chair. She testified: “I asked him if I could leave, that I wanted to go home, and I didn’t want to come up. I said, ‘Now, I came up. Can I go?’ ” Appellant, who, of course, still had her keys, said that he wanted her to stay. He told her to get on the bed with him, and, in fact, took her arms and pulled her on to the bed. He then started to undress her; he removed her blouse and bra and unzipped her pants. At his direction, she removed his clothes. She then said:

“I was still begging him to please let, you know, let me leave. I said, ‘you can get a lot of other girls down there, for what you want,’ and he just kept saying, ‘no;’ and then I was really scared, because I can’t describe, you know, what was said. It was more the look in his eyes; and I said, at that point — I didn’t know what to say; and I said, ‘If I do what you want, will you let me go without killing me?’ Because I didn’t know, at that point, what he was going to do; and I started to cry; and when I did, he put his hands on my throat, and started lightly to choke me; and I said, ‘If I do what you want, will you let me go?’ And he said, yes, and at that time, I proceeded to do what he wanted me to.”
He “made me perform oral sex, and then sexual intercourse.”

Following that:

“I asked him if I could leave now, and he said, ‘Yes;’ and I got up and got dressed; and he got up and got dressed; and he walked me to my car, and asked if he could see me again; and I said, ‘Yes;’ and he asked me for my telephone number; and I said, ‘No, I’ll see you down Fell’s Point sometime,’ just so I could leave.”

At this point, appellant returned her car keys and escorted her to her car. She then drove off:

“I stopped at a gas station, that I believe was Amoco or Exon (sic), and went to the ladies’ room. From there I drove home. I don’t know — I don’t know if I rode around for a while or not; but I know I went home, pretty much straight home and pulled up and parked the car.
“I was just going to go home, and not say anything.
“Q Why?
“A Because I didn’t want to go through what I’m going through now.
“Q What, in fact did you do then?
“A I sat in the car, thinking about it a while, and I thought I wondered what would happen if I hadn’t of done what he wanted me to do. So I thought the right thing to do was to go report it, and I went from there to Hillendale to find a police car.” (Emphasis supplied.)

How does the majority Opinion view these events? It starts by noting that Pat was a 21-year old mother who was separated from her husband but not yet divorced, as though that had some significance. To me, it has none, except perhaps (when coupled with the further characterization that Pat and Terry had gone “bar hopping”) to indicate an underlying suspicion, for which there is absolutely no support in the record, that Pat was somehow “on the make”. Even more alarming, and unwarranted, however, is the majority’s analysis of Pat’s initial reflections on whether to report what had happened. Ignoring completely her statement that she “didn’t want to go through what I’m going through now”, the majority, in footnote 1, cavalierly and without any foundation whatever, says:

“If, in quiet contemplation after the act, she had to wonder what would have happened, her submission on the side of prudence seems hardly justified. Indeed, if she had to wonder afterward, how can a fact finder reasonably conclude that she was justifiably in fear sufficient to overcome her will to resist, at the time.” (Emphasis in the original.)

It is this type of reasoning — if indeed “reasoning” is the right word for it — that is particularly distressing. The concern expressed by Pat, made even more real by the majority Opinion of this Court, is one that is common among rape victims, and largely accounts for the fact that most incidents of forcible rape go unreported by the victim. See F.B.I. Uniform Crime Reports (1978), p. 14; Report of Task Force on Rape Control, Baltimore County (1975); The Treatment of Rape Victims In The Metropolitan Washington Area, Metropolitan Washington Council of Governments (1976), p. 4. See also Rape And Its Victims: A Report for Citizens, Health Facilities, and Criminal Justice Agencies, LEAA (1975). If appellant had desired, and Pat had given, her wallet instead of her body, there would be no question about appellant’s guilt of robbery. Taking the car keys under those circumstances would certainly have supplied the requisite threat of force or violence and negated the element of consent. No one would seriously contend that because she failed to raise a hue and cry she had consented to the theft of her money. Why then is such life-threatening action necessary when it is her personal dignity that is being stolen?

Rape has always been considered a most serious crime, one that traditionally carried the heaviest penalty. But until recently, it remained shrouded in the taboos and myths of a Victorian age, and little real attention was given to how rapes occur, how they may be prevented, and how a victim can best protect herself from injury when an attack appears inevitable. The courts are as responsible for this ignorance and the misunderstandings emanating from it as any other institution in society, and it is high time that they recognize reality.

Rape is on the increase in the United States. The Uniform Crime Reports compiled by the F.B.I. show more than a doubling in both the absolute number of forcible rapes and in the rate per 100,000 population between 1965 and 1974. Between 1973 and 1977, forcible rape has increased 19%. As the result of the Battelle Study, we now know some things about this crime that we could only guess at before. Nearly half of the rapes occur when this one did, between 8:00 p.m. and 2:00 a.m., and, as in this case, approximately one-third of rape victims had come into contact with their assailants voluntarily, under circumstances other than hitchhiking. Physical force is absent in over half of reported cases and, in a third of the cases, no weapon is involved. In rapes occurring in large cities (over. 500,000 population), the statistics showed:

Use of physical force 47.4%

Use of weapon: none 34.6%

firearms 21.1%

sharp instrument 24.7%

blunt instrument 7.3%

other 11.6%

Of particular significance is what was learned about resistance. The most common type of resistance offered by victims is verbal. Note: verbal resistance is resistance! In cases arising in the large cities, only 12.7% of the victims attempted flight, and only 12% offered physical resistance. The reason for this is apparent from the next thing learned: that “[rjape victims who resisted were more likely to be injured than ones who did not.” (Emphasis supplied.) The statistics showed, for rapes in large cities, that, where physical resistance was offered, over 71% of the victims were physically injured in some way, 40% requiring medical treatment or hospitalization.

Said the Report: “These results indicate one possible danger of the popular notion (and some statutory requirements) that a victim of an attack should resist to her utmost. ” (Emphasis supplied.)

In a second volume of the Report, intended for prosecutors, some of the social attitudes about rape were discussed. With respect to resistance, it was noted (p. 4):

“Perhaps because most women's experience and expertise with violence tends to be minimal, they are unlikely to engage in physical combat or succeed when they do. Many women employ what is referred to as ‘passive resistance.’ This can include crying, being slow to respond, feigning an inability to understand instructions or telling the rapist they are pregnant, diseased or injured. While these techniques may not always be successful, their use does suggest that the victim is surely not a willing partner.” (Emphasis supplied.)

In contrast to some of the inferences sought to be drawn by the majority from Pat’s reactions, the Report further points out (Prosecutor’s Volume I, p. 5):

“Rather than expressing their emotions, some victims respond to a rape with a calm, composed demeanor or ‘controlled reaction.’ [Footnote omitted.] These victims do not wish to exhibit emotions, especially in front of a stranger or authority figure like the prosecutor. Psychologically it is important for these victims to demonstrate that they can handle stress in a mature and adult manner.
The appearance of casualness hides and may avoid true and often intense emotions. This ‘control’ may result in victim responses which are considered inappropriate such as giggling, smiling or even laughing. Unfortunately this type of response can cause others to doubt the victim’s account of the rape.” (Emphasis supplied.)

Finally, perhaps in response to the oft-quoted comment of Matthew Hale that still pervades societal thinking about rape (“[Rape] is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent”), the Report observes (Vol. II, p. 4):

“On a national average, 15 percent of all forcible rapes reported to the police were ‘determined by investigation’ to be unfounded. Given the inherent skepticism of many criminal justice personnel to rape victims and the harassment and invasion of privacy that a reporting victim is likely to confront, it is doubtful that many false accusations proceed past the initial report. Curtis (1974) asserts that ‘contrary to widespread opinion, there is in fact little hard empirical evidence that victims in rape lie more than, say victims in robbery.’ Undoubtedly, there are false reports. However, the danger posed by the myth that women ‘cry rape’ is that police officers and prosecutors will believe it and then place the burden on the victims to prove the contrary.” (Emphasis supplied.)

Law enforcement agencies throughout the country warn women not to resist an attack haphazardly, not to antagonize a potential attacker, but to protect themselves from more serious injury. The United States Department of Justice, for example, has published a pamphlet warning, among other things:

“If you are confronted by a rapist, stay calm and maximize your chances for escape. Think through what you will do.
You should not immediately try to fight back. Chances are, your attacker has the advantage. Try to stay calm and take stock of the situation.”

Where does this leave us but where we started? A judge and a jury, observing the witnesses and hearing their testimony, concluded without dissent that there was sufficient evidence to find beyond a reasonable doubt that appellant had sexual intercourse with Pat by force or threat of force against her will and without her consent; in other words, that the extent of her resistance and the reasons for her failure to resist further were reasonable. No claim is made here that the jury was misinstructed on the law of rape. Yet a majority of this Court, without the ability to see and hear the witnesses, has simply concluded that, in their judgment, Pat's fear was not a reasonable one, or that there was no fear at all (a point that appellant conceded at oral argument before the Court en bane). In so doing, they have ignored the fact of a young woman alone in a strange neighborhood at 1:00 in the morning with a man who had taken her keys and was standing at her open car door demanding that she come with him; they have ignored that she offered the very type of verbal resistance that is prudent, common, and recommended by law enforcement agencies; they have ignored that the reasonableness of Pat's apprehension is inherently a question of fact for the jury to determine, Tryon v. State, 567 P.2d 290 (Wyo. 1977); State v. Baldwin, 571 S.W.2d 236 (Mo. 1978); People v. Merritt, 381 N.E.2d 407 (Ill. App. 1978); People v. Vicaretti, 388 N.Y.S.2d 410 (1976); People v. Coleman, 89 Cal. App. 3d 312 (1979). Brushing all of this aside, they have countermanded the judgment of the trial court and jury and declared Pat to have been, in effect, an adulteress.

I close with this comment taken from 13 Western Australian Law Rev. at 75 (1977), written half a world away, but precisely for this case:

“Courts have sought to enunciate legal standards for consent with respect to allegations of rape, rather than leaving the issue as a question of fact for the jury. Thus, judges have intruded into an area which in terms of the common law definition of rape should be dealt with by the jury. This appears to suggest that juries are incompetent to do their job, that is, to review the facts as impartially as possible, and to make findings beyond a reasonable doubt without being led astray by prejudices or irrelevancies. The jury is indispensable to the common law justice system. If rape is defined as ‘carnal knowledge of a woman without her consent’, then it makes nonsense of the proposition that the jury is the trier of fact if the judge takes it upon himself to tell the jury what is or is not consent.
“If the purpose of the law is to protect women from acts of sexual intercourse to which they have not in fact consented, whether by reason of force actually applied, physical or other threat, or fear induced by accused or by others, then the relevant question would appear to be: Did this particular woman, in these particular circumstances, submit to this particular man; or did she in fact freely consent to have intercourse with him? If, on the contrary, the law requires a woman to react in a particular way, that is, by fighting back against her attacker and sustaining a certain degree of damage inflicted by the accused in order to signify the lack of consent, and if the law deems the woman to have consented to the act despite ample evidence of threats which rendered her submissive but non-consenting, then the law cannot be said to be serving its true function of protecting individuals from the imposition of non-consensual sexual intercourse.
“Whether the relevant threats do or do not measure up to standards which appear to be set in current rape cases — that the threat be immediate, physical, violent, interpreted on a reasonable-man standard — the accused is amply protected. He cannot be convicted unless the prosecution has proved beyond a reasonable doubt the requisite state of mind: that he intended to have intercourse with the woman without her consent, and did so; or that he was reckless thereto. By imposing an artificial standard of consent, by requiring the woman concerned to resist or at least not simply to suffer the imposition of the act as a lesser evil, the criminal law would seem to require a measure of ‘self-help’ which it does not require in any other area of criminal law — and indeed which is usually frowned upon by the law.”

I am authorized to state that Judges Morton, Moylan, Moore and MacDaniel join in the views expressed herein.

      . If we could say at this point that there is .enough evidence for a reasonable fact finder to say such threat of force is solely that which overcame her will to resist, the conduct of both following intercourse would belie that conclusion:
      “Q. All right. Now, after the sexual intercourse came to a conclusion, wnat is the very next thing that took place?
      A. I asked him if I could leave now, and he said, ‘Yes;’ and I got up and got dressed; and he got up and got dressed; and he walked me to my car, and asked if he could see me again; and I said, ‘Yes;’ and he asked me for my telephone number; and I said, ‘No, I’ll see you down Fell’s Point sometime,’ just so I could leave.
      Q. What is the reason that you said that you would meet him the next day?
      A. I didn't say the next day, and I just said I would see him down there only so I could leave. I didn’t know what else to say. I had no intention of meeting him again.”
      After arriving home she said:
      “I sat in the car, thinking about it a while, and I thought I wondered what would happen if I hadn’t of done what he wanted me to do.
      So I thought the right thing to do was to go report it, and I went from there to Hillendale to find a police car.”
      If, in quiet contemplation after the act, she had to wonder what would have happened, her submission on the side of prudence seems hardly justified. Indeed, if she had to wonder afterward, now can a fact finder reasonably conclude that she was justifiably in fear sufficient to overcome her will to resist, at the time.

      . Since Hazel, the Maryland Legislature has codified extensively the law pertaining to sexual offenses providing in Md. Code, Art. 27, § 463 as follows:
      “(a) What constitutes. — A person is guilty of rape in the second degree if the person engages in vaginal intercourse with another person:
      (1) By force or threat of force against the will and without the consent of the other person....”
      The statute has made no change in the force as required by Hazel.

      . Other courts have stated the rule this way: A rape victim is not required to do more than her age, strength, surrounding facts and all attending circumstances make it reasonable for her to do to manifest her opposition. See Dinkens v. State, 546 P.2d 228 (Nev. 1976); State v. Studham, 572 P.2d 700 (Utah 1977). See also Schrum v. Com., 246 S.E.2d 893 (Va. 1978).

      . Fell’s Point is an old section of Baltimore City adjacent to the harbor. It has been extensively renovated as part of urban renewal and, among refurbished homes and shops, hosts a number of cafes and discotheques. It is part of the City’s night scene.

      . Pat said that Terry and she lived at opposite ends of town and that Fell’s Point was sort of midway between their respective homes.

      . Her testimony about this, on cross-examination, was: “I said I was leaving. I said, excuse me. It’s nice meeting you; but I’m getting ready to leave; and he said, 'which way are you going;’ and I told him; at that time, he said, 'Would you mind giving me a lift?’ ”

      . On direct examination, she twice said that he left the room “for a minute” after telling her to sit down. On cross-examination, she said she couldn’t remember how long he was gone, but, at counsel’s suggestion, said that it was not longer than five minutes.

      . Pat explained this last comment further: “I didn’t know what else to say. I had no intention of, meeting him again.”

      . See FBI Uniform Crime Reports (1978), p. 14. See also Battelle Study, infra, note 8, Prosecutors’ Volume I (1977), p. 7.

      . This was a study conducted by the Battelle Memorial Institute Law and Justice Study Center under grant from the LEAA (National Institute of Law Enforcement and Criminal Justice). The Report of the study was published during 1977 and 1978. I shall refer to it hereafter as “Battelle Study”.

      . Battelle Study, Police Volume 1, p. 20.

      . Id., p. 21. These figures, of course, are not cumulative. Weapons may accompany physical force, or there may be an absence of both.

      . Id., p. 21.

      . Id., p. 22.

      . Id., p. 22.

      . 1 Hale, The Hinton/ of the Plena of the Crown 635 (1847).

      . Be on the safe side, LEAA, U.S. Department of Justice. The pamphlet also advises: “Be selective about new acquaintances: don’t invite a forcible sexual encounter.” See also Let Prevention Be Your Guide, a pamphlet published by the (Baltimore City) Mayor’s Coordinating Council on Criminal Justice; Rape Prevention, a pamphlet distributed by the Prince George’s County Police Department. That pamphlet specifically warns:
      “Extensive research into thousands of rape cases indicates that attempts at self defense, such as screaming, kicking, scratching and use of tear gas devices and other weapons, usually have provoked the rapist into inflicting severe bodily harm on the victim. Since it is unlikely you will be able to overcome the rapist by force, you must think about what he will do after you try and fail. Before you do anything, remember ... IF WHATEVER YOU DO DOES NOT HELP YOU, MAKE SURE THAT IT WILL NOT HARM YOU.”

      . The majority Opinion cites and reviews at some length Gonzales v. State, 516 P.2d 592 (Wyo. 1973). It is worthy of note that the conviction in Gonzales was reversed not because of an insufficiency of evidence, but because of an erroneous jury instruction. The Wyoming court made this clear in Tryon, 567 P.2d at 292. Indeed, the Gonzales court held that the question of whether the victim’s apprehension was reasonable was for the jury to determine. See 516 P.2d at 594.

      . Interestingly, appellant was convicted of assault arising out of the same incident, but did not contest the sufficiency of the evidence supporting that conviction. It would seem that if there was not enough evidence of force, or lack of consent, to permit the rape conviction, there was an equal insufficiency to support the assault conviction. The majority is spared, in this case, the need to deal with that thorny dilemma.


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    JENELLE PRINS v. PAUL ROBERT SCHREYER et al.
    [No. 1346,
    September Term, 1978.]

      Decided October 10, 1979.

    The cause was argued before Lowe and Couch, JJ., and James S. Getty, Associate Judge of the Fourth Judicial Circuit, specially assigned, and reargued en banc before Gilbert, C. J., and Morton, Thompson, Moylan, Moore, Lowe, Melvin, Mason, Liss, Wilner, Couch, MacDaniel and Weant, JJ.

      Argued and reargued by Gerald I. Holtz, with whom was Harold A. Sakayan on the brief, for appellant.
    Argued and reargued by George P. Haldeman, with whom were Brault, Graham, Scott & Brault on the brief, for appellees.
   Couch, J.,

delivered the opinion of the Court.

Jenelle Prins, the appellant, filed suit in the Circuit Court for Montgomery County against Paul and Frank Schreyer for injuries she sustained when she was struck by an automobile owned by Paul and operated by Frank. The appellant also sued Hugh Robert Lee and Christopher Lee (the Lees) in the same action for creation of a public nuisance and negligence which she alleged caused her injuries when struck by the automobile. The record reveals that the Schreyers have pleaded the general issue and the case against them stands ready for trial; they are not directly involved in this appeal. The Lees filed a demurrer to appellant’s amended declaration, which, after a hearing, was sustained by the trial court without leave to amend. (No request for leave to amend further was made by the appellant.) Judgment in favor of the appellees was duly entered. Thereafter, upon the request of appellant, the trial court certified that there was no just reason for delay (Md. Rule 605 a) and this appeal ensued.

The sole issue presented here is whether the trial court’s ruling on appellee’s demurrer was proper. Appellant contends that the court erred in sustaining the demurrer, maintaining that the allegations contained in count 2 (nuisance) and count 3 (negligence) were sufficient to state causes of action. We disagree and shall affirm the trial court’s action.

We begin our analysis by recalling that our review of the propriety of an order sustaining a demurrer to a declaration without leave to amend requires us to assume, as did the trial judge, the truth of all material and relevant facts that are well pleaded, as well as all inferences which can be reasonably drawn from those well pleaded facts. Kight v. Bowman, 25 Md. App. 225, 227, 333 A.2d 346 (1975).

Count one of the declaration contains allegations against the Schreyers (owner and driver of the automobile) only. Appellant incorporated by reference in counts two and three, which apply solely to. the appellees, all the facts and allegations contained in count one. Count one alleges as follows:

“For that on or about the 5th day of October, 1975, the plaintiff was a pedestrian walking in a southeasterly direction on River Road near the intersection of Swains Lock Road in Potomac, Montgomery County, Maryland. That at said time it was nighttime, the weather was clear, the roads were dry. River Road in the area of the accident was two lanes, one in each direction and the roadway was straight in the area of the accident and level. Plaintiff was walking in the northwest bound lane to the left of the white curb line at all times relevant herein. That on or about the same date and at or about the same place, the defendant, Frank Joseph Schreyer, was operating his automobile by and through his agent, servant, employee and/or permissive user, defendant, Paul Robert Schreyer, in a southeasterly direction on River Road near Swains Lock Road in a negligent and careless manner and in violation of the traffic rules and regulations then and there in effect in the State of Maryland and the County of Montgomery, and in further violation of the duty of care imposed upon said defendants by law and, more particularly, the defendants failed to give full time and attention to their driving; operated at an unreasonable rate of speed; operated in excess of the posted speed limit; failed to keep their vehicle under control so as to avoid colliding with a pedestrian; failed to keep a proper lookout; failed to operate their vehicle on the travel portion of the roadway; drove their vehicle on the shoulder; travelled on the wrong side of the roadway; attempted to pass when it was unsafe to do so and, as a result, struck the plaintiff causing plaintiff to sustain serious injuries and damages without any negligence on the part of plaintiff contributing thereto.”

Count two alleges in part:

“That on or about the 5th day of October, 1975, the defendants, Hugh Robert Lee and Christopher Lee, by and through their agent and/or servant, arranged, held, sponsored, permitted or consented to a party on property located at 12221 River Road in Potomac, Montgomery County, Maryland; that tickets for several thousand guests were sold to this party at two high schools in Montgomery County, Maryland by the defendants’ agent and/or servant; and that nearly 2000 persons attended the party. That the defendants knew or should have known that the party on October 5,1975 would attract that number of persons and knew or should have known that there was no public transportation to the site of the party and that all of the guests would arrive in private vehicles; that there were inadequate parking facilities on the property or adjacent thereto to accommodate that amount of persons travelling by private cars; that the defendants did not make arrangements to accommodate traffic, including parking for the persons they invited. That due to the actions or inactions of the defendants as set forth herein, cars were parked along River Road for a two mile radius from the defendants’ property, including the area at or near the intersection of Swains Lock Road, creating a dangerous situation and a public nuisance for pedestrians, including plaintiff, who were forced to walk along River Road, in that the defendants in their actions obstructed the plaintiffs use of the public highways, in that River Road in the area outlined herein is a public two-lane road, one lane in each direction with no sidewalks for pedestrians to walk on and an unimproved shoulder to the right of the travel portion of the road. That cars were parked on the unimproved shoulder of the road for the two mile radius as set forth herein, creating a dangerous condition for pedestrian traffic on River Road in that the cars parked on the shoulder of River Road prevented pedestrians, including the plaintiff, from walking along the shoulder of the road and forced them to walk on the line separating the shoulder and the roadway or on the roadway itself and, in addition, narrowed the travel portion of the roadway. That due to the parking conditions created on River Road by the actions of the defendants as set forth herein, the Montgomery County Police had been called to the scene and set up barricades along River Road and were allowing only residents of the area to proceed on River Road; that due to the barricades set up by the Montgomery County Police, the plaintiff, who was en route to pick up her daughter, was forced to park her vehicle approximately two miles away from the defendants’ property and walk toward it. That as a result of the public nuisance created by the defendants as set forth herein, plaintiff, while walking in a southeasterly direction on River Road at or near the vicinity of the defendants’ party, was struck by a vehicle, causing her to sustain serious injuries and damages, without any negligence on the part of plaintiff contributing thereto.”

Count three alleges in part:

“That on or about the 5th day of October, 1975, the defendants, Hugh Robert Lee and Christopher Lee, by and through their agents and/or servants organized, planned, promoted, supervised and otherwise permitted a party on their property located at 12221 River Road in Potomac, Montgomery County, Maryland; that tickets were sold without a license to this function, in violation of law; that nearly 2000 persons attended the party; and that the area at which the party was held was not designed to accommodate such a large number of persons nor were there adequate parking facilities available. That the defendants negligently and carelessly organized, planned and promoted the party described herein in that they knew or should have known that their property could not accommodate the large number of persons whom they knew would be attending the party; that they knew or should have known that cars would be parked on both sides of River Road in the vicinity of their property due to the inadequate parking facilities on his property thus creating a danger to those persons, including plaintiff, who were walking back and forth on River Road. That the defendants knew there was no public transportation to their property and that all of the guests would arrive in private automobiles or on foot. That defendants negligently and carelessly supervised the party in that they allowed minors to attend the party and to remain at the party until late in the evening, when they knew or should have known that the parents of said minors would be out looking for them; that as a result of the negligence and carelessness of the defendants as set forth herein, the plaintiff, while walking in a southeasterly direction on the edge of River Road at or near the vicinity of defendants’ property, was struck by a vehicle causing her to sustain serious injuries and damages without any negligence on her part contributing thereto.”

Count two purports to be grounded on a nuisance theory, inferentially stemming from the obstruction of River Road, a public highway. We do not believe the allegations set forth in count two support this theory. The only allegation of road obstruction is that cars parked on the shoulder of the road prevented pedestrians, including plaintiff (appellant here), from walking along the shoulder and forced them to walk either on the line separating the shoulder and the roadway or on the roadway itself, and that the travel portion of the roadway was narrowed. There is no-allegation of the width of the remaining usable portion of the road and, from the allegations contained in count one, it appears clear that appellant was struck by the Schreyer automobile while walking on the shoulder. Nor is there any allegation that the cars were parked illegally. The appellant’s allegations in count two fall into the category of public nuisances. The Court of Appeals set forth three types of public nuisances in Burley v. City of Annapolis, 182 Md. 307, 34 A.2d 603 (1943):

“Public nuisances, that is to say, those nuisances which have a common effect and produce a common damage, are usually placed in three classifications: First, those which are nuisances perse or by statute; second, those which prejudice public health or comfort such as slaughterhouses, livery stables, etc.; third, those which in their nature are not nuisances, but may become so by reason of their locality, surroundings, or the manner in which they may be maintained.”

Id. at 312. The third classification clearly covers the allegations of count two since it is supposedly premised upon the obstruction of River Road.

An allegation of substantial interference with the plaintiff’s interests, in this instance unfettered use of the roadway, is a necessary ingredient for stating a cause of action in nuisance. Dean Prosser, in his treatise, The Law of Torts, states:

“Both public and private nuisances require some substantial interference with the interest involved----The law does not concern itself with trifles, or seek to remedy all of the petty annoyances and disturbances of everyday life in a civilized community.
Where the invasion affects the physical condition of the plaintiff’s land, the substantial character of the interference is seldom in doubt. But where it involves mere personal discomfort or annoyance, some other standard must obviously be adopted than the personal tastes, susceptibilities and idiosyncrasies of the particular plaintiff.”

Prosser, The Law of Torts, ch. 15, § 87 (4th ed. 1971). That standard has been stated in Maryland as follows:

“The rule which must control is whether the nuisance complained of will or does produce such a condition of things as in the judgment of reasonable men is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits, such as in view of the circumstances of the case is unreasonable and in derogation of the rights of the party ... subject to the qualification that it is not every inconvenience that will call forth the restraining power of a court.”

Meadowbrook Swimming Club, Inc. v. Albert, 173 Md. 641, 645, 197 A. 146 (1938). The allegation in count one that appellant was struck by the automobile while walking on the shoulder negates the inference that the alleged nuisance substantially interfered with appellant’s ability to use the roadway as a pedestrian. The allegations contained in count two are not sufficient to show a nuisance created by the Lees for the alleged obstruction of River Road.

Count three sounds in negligence in that appellees organized a party to be held on property located on River Road, that tickets were sold without a license, and that nearly 2000 persons attended. It is further alleged that appellees negligently organized the party insofar as they knew there were inadequate parking facilities provided to accommodate the expected large crowd, which would have to arrive by automobile. It is further alleged that appellees knew or should have known that cars would have to park on River Road, creating a danger to persons walking thereon.

Again, we believe these allegations insufficient to state a cause of action in negligence. With respect to the failure to obtain a license, the pleading does not set forth any information about the license or how the failure to obtain it had any part to play in this accident. While the violation of an ordinance or regulation may be evidence of negligencé, it must be shown that the violation was a proximate cause of the injury, see Maggitti v. Cloverland Farms Dairy, 201 Md. 528, 533, 95 A.2d 81 (1953). This is absent here. With respect to the car parking aspect of this count, again, as set forth above in our discussion of the nuisance count, we do not find allegations as to the width of the clear travel portion of the road or the manner in which the cars were parked and whether the parking was legal or not, so as to support a conclusion that there was danger to appellant. We do not believe the allegations of this count are sufficient to survive a demurrer.

In any event, we believe that appellant’s own pleading patently demonstrates that any wrongdoing by appellees was superseded by the actions of the automobile operator. As previously noted, appellant incorporated by reference all of the allegations of count one into both count two and count three. Even a cursory examination of count one indicates that the cause of the accident was the automobile driver’s failing to obey the posted speed limit, failing to keep a proper lookout, and driving on the left hand shoulder of the road, apparently in passing, when unsafe to do so. It has been held that when wrongful actions of a party are only passive and those of another are active, there is no responsibility on the passive actor. In Peterson v. Underwood, 258 Md. 9, 16, 264 A.2d 851 (1970), the Court of Appeals stated:

“Proximate cause ultimately involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. This determination is subject to considerations of fairness or social policy as well as mere causation. Thus, although an injury might not have occurred ‘but for’ an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely passive and potential, while the negligence of another is the moving and effective cause of the injury. Bloom v. Good Humor Ice Cream Co., 179 Md. 384, 18 A.2d 592 (1941), or if the injury is so remote in time and space from defendant’s original negligence that another’s negligence intervenes. Dersookian v. Helmick, 256 Md. 627, 261 A.2d 472 (1970); Liberto v. Holfeldt, 221 Md. 62, 155 A.2d 698 (1959).”

In our view, any wrongdoing on the part of appellees was passive and potential while that of the automobile operator was the moving and effective cause of the injury.

Accordingly, we hold the trial court did not err in sustaining appellees’ demurrer without leave to amend.

Judgment affirmed.

Costs to be paid by appellant.


author: Gilbert, C. J.,

text:
    IN RE: GLENN H.
    [No. 95,
    September Term, 1979.]

      Decided October 10, 1979.

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

      Glen M. Fallin for appellant.

      Valerie A. Leonhart, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sandra A. O'Connor, State’s Attorney for Baltimore County, and Howard B. Merker, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The appellant, Glenn H., a juvenile, committed an act that had he reached age 15 or older would have resulted in a charge of murder. Glenn was adjudged by the Circuit Court for Baltimore County, sitting as a juvenile court (Raine, J.) to be a delinquent. He was committed to the jurisdiction of the Juvenile Services Administration. Glenn was placed in Edgemeade of Idaho, a non-public facility providing individual and group therapy. That placement was apparently deemed necessary because of Glenn’s being emotionally disturbed. Approximately one year later, in March 1978, Glenn, for some reason not revealed by the record, was moved to Edgemeade of Maryland. The cost, per annum, of maintaining Glenn at the Edgemeade facility was approximately $20,681. Seemingly, without consulting either the Department of Juvenile Services or Judge Raine, the Baltimore County Department of Education or the State Department of Education referred Glenn to the Hannah More Center, Reisterstown, Maryland, on September 1,1978. The Center was not informed, at the time Glenn was referred to them, of the nature of offense for which he had been found delinquent.

We infer from the record that certain publicity was generated relative to Glenn’s being able to leave the Hannah More Center on week-ends and to spend them with his family. As a result of that publicity the juvenile court judge wrote to the Center stating:

“It has been brought to my attention as the Juvenile Judge of Baltimore County that the above entitled individual is now located at your Center. The file clearly indicates that the matter was disposed of by Judge John E. Raine, Jr., when he was the Juvenile Judge.
I learned that this young man spends his week ends at home without any supervision from your department. Perhaps this may be in order, but on the other hand, the nature of the offense would indicate to me no week ends, or strictly supervised week ends.
However, I will keep an open mind and would be most happy to discuss this matter with you personally at anytime. It is my responsibility as the Juvenile Judge to look into these matters, and, frankly, I am concerned if the above is true. Please advise at your earliest convenience.”

The judge’s letter did several things: 1) It prompted the Center to “reevaluate the appropriateness of Glenn’s placement in ... [the Center’s] program”; 2) Glenn was restricted to the campus and was not allowed to “be involved in home or community activities” pending “final determination in his case”; 3) In the words of the judge “stirred up a hornet’s nest.” Glenn, however, was the only one who was eventually stung.

A court psychiatrist, pursuant to an order of the court, wrote to the judge on December 20, 1978, that:

“1. Glen [s/e] must currently be considered dangerous; it is somewhat problematic whether he is less dangerous than in the past or not. He has continued to have occasional violent outbursts of apparent total loss of control. These seem less frequent than before, and may be less severe and less directed towards persons than previously, but that is not clear. The psychological testing reveals many tendencies suggesting a proneness to violent eruptive behavior.
2. Glen [s/c] appears to be making very significant progress. There appears to be increased self-control, more social appropriateness with enhanced skills and social values which were previously lacking, and somewhat more ability to deal with others and with his own feelings in a verbal fashion. It is clear that significant problems remain. To some degree he would seem to have increased emotional strength. To some extent, he may be channeling some of his more violent aggressive feelings into somewhat antisocial behavior rather than into explosions. He seems to continue to use a great deal of avoidance of difficult problems and feelings, partially controlling himself through suppression of feelings. This results in his exploding less frequently, generally behaving more appropriately, but still having a rather unpredictable hair trigger effect. It also paradoxically makes therapy for him much more difficult, the therapy which he would need in order to show improvement in these areas.
4. Glen [sic] would appear to need placement in a residential treatment center. The center should have: (1) Flexibility, with the capacity to provide a secure setting, but also to relax the security as behavior and adjustment warrants it. (2) Concurrently they should have the capacity to deal with disruptive and antisocial behavior if it occurs. (3) An on-grounds school; (4) Individual psychotherapy, within a comprehensive treatment program (i.e., integrated and organized along therapeutic lines.
5. The question of visitation certainly arises. There clearly is a dilemma between (a) the apparent risk to the community on the one hand — Glen’s [sic] violence appears to be unpredictable; however, he apparently has been having some degree of supervised and unsupervised visitation for the past two years without untoward incident, even though not handling himself too well at Hannah More; versus (b) benefits — visitation frequently provides a motivational incentive in the treatment program, helps normalize life somewhat, and helps to maintain very important family ties.
While it clearly falls to the Court to decide what degree of calculated risk can be accepted, I would lean towards allowing visits, assuming that they are quite well-supervised, an integrated and well-assessed aspect of the treatment program, with the Court's being closely informed as to the ongoing situation.”

A hearing was set before the juvenile court on November 30,1978, for the purpose of having a “Review of Commitment for Placement.” Glenn and his father appeared at the hearing. The juvenile was not represented by an attorney, nor does it appear that he was informed either directly or indirectly through his father of the right to be so represented. Moreover, there is nothing contained in the record from which we can infer a waiver. The appellant’s constitutional, statutory, and procedural right to counsel appears to have been ignored. The hearing was almost monopolized by the judge, the Deputy State’s Attorney, and the Director of the Hannah More Center. Glenn did not speak so much as one word. His father uttered 13 lines out of 15 pages. The substance of the 13 lines was that the “Juvenile Authorities” were advised of Glenn’s transfer to Hannah More.

A second hearing was held on December 21,1978. The cast of characters changed somewhat, but Glenn was still not advised of his right to counsel. This time Glenn's father said only three words in an 18 page transcript, and those words were merely to acknowledge that he understood his son did not want to attend Edgemeade of Maryland.

The judge concluded that the “logical thing would be ... for the convenience of everybody including Glenn and his family,” for the juvenile to be committed to the Maryland Training School. He then so ordered.

Reminiscent of John Ford “Westerners,” counsel, belatedly retained at the last split second, galloped on to the scene. Armed with eight issues, one of which is sub-divided into five parts, counsel asks that we reverse the juvenile court for a host of reasons. We shall reverse, but we deem it unnecessary to reach anything more than the appellant’s first issue which asserts:

“I. The lower court violated Appellant’s right to counsel by conducting a hearing sua sponte, to review his commitment as a delinquent child and, at the conclusion thereof, order a substantially more restrictive commitment of Appellant, when Appellant was not represented by counsel and there had been no express waiver of counsel.”

Our review of the record fails to disclose that either the appellant or his father were apprised of the appellant’s right to counsel at the hearings of November 30 and December 21, 1978. Neither appellant nor his father was advised of appellant’s right to confrontation of witnesses on cross-examination. The change in commitment was based in large part upon a psychiatric report, but no opportunity was apparently afforded appellant to ask the author of that report any questions.

In Md. Courts and Judicial Proceedings Code Ann. § 3-821 is embodied the legislative fiat that “a party is entitled to the assistance of counsel at every stage of any proceeding under this [Juvenile Causes] subtitle.” (Emphasis supplied.) Md. Rule 906 provides:

“a. In All Proceedings Appearance of Out-of-State Attorney.
The respondent is entitled to be represented in all proceedings under this Chapter by counsel retained by him, his parent, or appointed pursuant to the provisions of subsection b 2 and 3 of this Rule____
b. Waiver of Representation Indigent Cases Non-Indigent Cases.
1. Waiver Procedure.
If, after the filing of a juvenile petition, a respondent or his parent indicates a desire or inclination to waive representation for himself, before permitting the waiver the court shall determine, after appropriate questioning in open court and on the record, that the party fully comprehends:
(i) the nature of the allegations and the proceedings, and the range of allowable dispositions;
(ii) that counsel may be of assistance in determining and presenting any defenses to the allegations of the juvenile petition, or other mitigating circumstances;
(iii) that the right to counsel includes the right to the prompt assignment of an attorney, without charge to the party if he is financially unable to obtain private counsel;
(iv) that even if the party intends not to contest the charge or proceeding, counsel may be of substantial assistance in developing and presenting material which could affect the disposition; and
(v) that among the party’s rights at any hearing are the right to call witnesses in his behalf, the right to confront and cross-examine witnesses, the right to obtain witnesses by compulsory process, and the right to require proof of any charges.
2. Representation of Indigents.
(a) Unless knowingly and intelligently waived, and unless counsel is otherwise provided, an indigent party, or an indigent child whose parents are either indigent or unwilling to employ counsel, shall be entitled to be represented by the Office of the Public Defender at any stage in a waiver, adjudicatory or disposition hearing, or hearing under Rule 916 (Modification or Vacation of Order).
3. Non-Indigent Cases.
Upon motion of any party or upon the court’s motion, the court may appoint an attorney to represent a child. Compensation for the services of the attorney may be assessed against any party.”

The proceedings in the instant case fall well short of anything resembling compliance with Md. Rule 906. Ergo, reversal is required. Inasmuch as the presence of counsel might well prevent some, if not all the other issues from being raised at any hearing, to discuss them would serve no purpose other than to prolong this opinion.

Order reversed.

Case remanded for further proceedings.

Costs to be paid by Baltimore County.

      . This information is obtained from a postscript to a letter written by Glenn’s father to the judge exercising juvenile jurisdiction in Baltimore County.

      . The “Commitment Order,” signed by Judge Raine in March 1977, specifically provides that the child is to be “kept in the care and custody of the” State of Maryland Dept, of Juvenile Services, “subject to the further order of ... Court.”

      . From the record, we cannot ascertain which of the two actually referred Glenn to Hannah More.

      . The postscript to the letter of the father to the judge of juvenile court states that the annual cost of maintaining Glenn at Hannah More was $12,938. It is obvious from the letter that the father opted for Hannah More. He penned to the postscript, “It is beyond my comprehension why the State of Maryland would elect to spend $7,743 for an institution exhibiting a program far inferior to the one offered at Hannah More.” The Hannah More Center is privately funded.

      . Whether the State requested the hearing or the court, sua sponte, ordered it is not clear.

      . See In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

      . Maryland Courts and Judicial Proceedings Code Ann. § 3-821.

      . Md. Rule 906.

      9. But see n. 5, supra.

      . In oral argument the State took the position that hearings before the juvenile court judge were not “proceedings,” and, therefore, there was no requirement that the juvenile be offered counsel. We have an entirely different view. Md. Rule 5 W defines “ ‘a proceeding’ or ‘the proceedings’ ” to mean “all or any part of an action.” We believe the occurrences in this case that took place before the juvenile court fall within the ambit of that definition and, hence, are “proceedings.” That being so, the juvenile should have been advised of his right to a private attorney of his own choosing, or if he or his parents could not afford one, the Public Defender would represent him. Of course, the juvenile also had the right to waive counsel provided the waiver satisfied Md. Rule 906 b 1.


author: Chasanow, J.,

text:
    FRANK LEON BONNER v. STATE OF MARYLAND
    [No. 1309,
    September Term, 1978.]

      Decided October 11, 1979.

    The cause was argued before Moylan and MacDaniel, JJ., and Howard S. Chasanow, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      Isaac S. Kershner, Assigned Public Defender, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Olga Bruning, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Chasanow, J.,

delivered the opinion of the Court.

On July 2, 1977, at approximately 1:00 a.m., Anthony Brown was robbed by two men in a dimly lit alley in Baltimore.

While one held him from behind, the other took Brown’s money out of his pockets. Brown saw the man who stood in front of him for approximately four to five minutes during the fifteen to twenty minute ordeal, but was unable to see the man holding him from behind. After the robbery, Brown reported the incident to the police and gave a description of the robber whom he saw: “Male, black, sixteen to eighteen, very light complected, short hair, tan shorts, sweat socks, sneakers, known as ‘Reds’.” At a subsequent interview with police, Brown told the officers that “Reds” frequented the area of Gilmore Street and Fairmount Avenue. At a pre-trial hearing and at trial, Brown testified that he had seen his attacker some two weeks before the robbery when his assailant was in a fight with another person.

Subsequent to the interview on the evening of July 2, Officers Rabold and McWhirter, while on patrol, observed the appellant with another person. Rabold knew the appellant as “Reds” Bonner and the appellant fit Brown’s description of the assailant, so Rabold approached the appellant and his companion. The officers advised the pair why they were stopped and the two suspects voluntarily rode with the officers to the victim’s home. When they arrived at Brown’s home, Rabold asked Brown to go to the car and see if anyone in the car looked like either of the persons who robbed him. Brown complied and while standing some five to six feet away from the vehicle, identified the appellant as the man who was in front of him during the robbery. Brown testified that the police officer then asked both men in the back of the car to get out and he then asked Brown, “Which one was it?” and Brown again identified the appellant.

In the Criminal Court of Baltimore, a motion to suppress identification testimony was denied and the case proceeded to trial where Brown identified the appellant as the person who robbed him, saying, “I got a look at his face.”

During closing arguments, counsel for the appellant was precluded by the court from reading to the jury a statement from an unidentified source, “that positive identification is one of the most dangerous types of testimony known to us.” The prosecutor, during her closing argument, was permitted, over objection, to tell the jury that the victim was not used to taking the witness stand, although the court recognized that there was no evidence indicating that this was the first time the complainant had ever testified.

The appellant also objected to the State’s Attorney’s statement in closing argument that the appellant’s nickname was “Reds.” The objection was sustained, and the jury was advised that there was no evidence indicating that the appellant’s nickname was “Reds.” Thereafter, when the State again referred to the appellant as “Reds” and to where “Reds” lived, the appellant objected and moved for a mistrial. The objection was sustained, but a mistrial was denied. Nevertheless, the court again instructed the jury that there was no evidence that the appellant’s nickname was “Reds” or that he lived in the 1500 block of Fairmount Avenue, and any comments by the prosecutor to the contrary should be disregarded.

Finally, the appellant objected to the prosecutor’s characterization of the robbery as a “very, very ugly experience” and the statement by her that “this is the kind of thing, a one on one, that goes on everyday in the streets of Baltimore. It’s the kind of thing that is keeping people prisoners in their homes.” The court overruled the appellant’s objections.

The Show-up

The appellant contends that the extrajudicial show-up was impermissively suggestive and that the trial court erred in denying the motion to suppress. In order to determine the admissibility of an out of court identification, we must look to the standard established by the United States Supreme Court. The Court has noted that the primary evil to be avoided in a case of an out of court identification is a very substantial likelihood of misidentification, and “... it is the likelihood of a misidentification which violates a defendant’s right to due process....” Neil v. Biggers, 409 U.S. 188, 198 (1972). Reliability, not suggestiveness, is the linchpin in the determination of admissibility. If in the totality of the circumstances, the out of court identification possesses indicia of reliability, the identification is admissible even if suggestive. Manson v. Brathwaite, 432 U.S. 98 (1977). In order to evaluate the likelihood of a misidentification, we must consider several factors, including the opportunity of the witness to view the criminal at the time of the crime; the witness’ degree of attention; the accuracy of the witness’ prior description of the criminal; the level of certainty demonstrated by the witness at the confrontation; and the length of time between the crime and the confrontation. Neil v. Biggers, supra; Manson v. Brathwaite, supra; Foster and Forster v. State, 272 Md. 273, cert. den. 419 U.S. 1036 (1974); Godwin v. State, 38 Md. App. 716 (1977), rev’d other grounds 284 Md. 85 (1978); Dobson v. State, 24 Md. App. 644 (1975), cert. den. 275 Md. 747 (1975).

In the instant case, Brown, the witness, had an excellent opportunity to view the perpetrator at the time he was robbed. During the course of the robbery, the perpetrator stood in front of and in full view of his victim, for four to five minutes. Moreover, since the robber stood in front of Brown while he took the money out of his victim’s pockets, Brown had the opportunity to view him from a very close range. Immediately after the incident, Brown gave the police a detailed description of his assailant and the area of the city frequented by his attacker. (See fn. 1)

At the pre-trial show-up, Brown identified the appellant from five to six feet away, even though the appellant was seated next to another person, who the trial judge noted was similar in appearance. In addition, the robbery occurred on July 2,1977, at approximately 1:00 a.m. and the confrontation took place at approximately 10:00 p.m. on the same day.

Although prior knowledge of an assailant’s identity is not one of the specific factors set forth in Neil and its progeny, we feel it is relevant to the determination of the reliability of the extrajudicial confrontation. If one has a previous acquaintance with another who robs him, even a suggestive confrontation would not result in a likelihood of misidentification, since the victim knew who the criminal was at the time of the crime because of the previous acquaintance. That type of identification, based on a prior familiarity with the criminal, has a high degree of reliability and is less likely to be influenced by a suggestive identification procedure. It is unquestionable that Brown had seen his attacker prior to the robbery, and that during the robbery he recognized his attacker as being the same man he had seen two weeks prior to the incident. Brown identified the appellant at the show-up not because of any suggestive procedures used, but because he knew the appellant to be both the person he saw two weeks before the robbery, as well as the person who robbed him.

Under the totality of the circumstances in the instant case, we do not believe that the show-up created a substantial likelihood of misidentification. The witness had a good opportunity to view his assailant; he gave police a detailed description; he demonstrated certainty at the time of the confrontation that the appellant was the man who robbed him; the time between the crime and the show-up was not substantial; and he had a familiarity with the appellant which predated the robbery. Since the show-up did not create a substantial likelihood of misidentification, we hold that evidence of the extrajudicial confrontation was properly admitted.

The In-Court Identification

The appellant next argues that the in-court identification was erroneously admitted. The appellant correctly states the rule, that once taint is shown as a result of an illegal or impermissively suggestive confrontation, the burden shifts to the State to show by clear and convincing evidence that the identification had a source independent of the viewing and that the viewing is not the proximate cause of the identification. Mills v. State, 19 Md. App. 614 (1974); Smith and Samuels v. State, 6 Md. App. 59 (1969), cert. den. 397 U.S. 1057 (1970).

First, we have concluded above that the show-up was not illegal or impermissively suggestive, since there was no likelihood of misidentification, and it is axiomatic that the in-court identification was properly admitted. Secondly, even if, arguendo, the confrontation were unlawful, the State has shown by clear and convincing evidence that the in-court identification was based on sources independent of the challenged show-up. The robbery itself provided an ample opportunity for the victim to get a good view of his assailant, who stood in front of Brown for four to five minutes. Moreover, as stressed by the trial court and discussed above, the victim had a prior familiarity with the identity of the appellant before the robbery. Finally, during the pre-trial hearing, Brown testified that he was identifying the appellant based on what he remembered from the robbery and not based on the show-up.

We fully agree with the trial court that there existed clear and convincing evidence to indicate that the in-court identification was based on sources independent of the show-up. Dobson v. State, supra. Consequently, the judicial identification was correctly admitted by the trial court.

Closing Arguments

The appellant also contends that the trial judge erred in refusing to allow his defense counsel to read from some unidentified source during closing argument the statement that “positive identification testimony is one of the most dangerous types of testimony known to us.” Under our State Constitution, the jury is the trier of both law and fact in criminal matters, Md. Const. Art. XV § 5 (1950), and although this provision permits attorneys to argue law to the jury, it does not allow attorneys to read facts from other cases. Brown v. State, 222 Md. 290 (1960).

In determining whether the court erred in precluding the appellant's counsel from reading the aforementioned quote to the jury, we must decide whether the argument was one of law or of fact. Arguing law includes stating, quoting, discussing or commenting upon a legal proposition, principle, rule or statute. The right to argue law to the jury does not include reading from books not recognized as authoritative by the legal profession, nor reading theories as to suggested legal reforms, nor reading statements of facts from prior cases, nor does it include reading statements or opinions which only have evidentiary bearing on the factual issues in the trial. See, Brown v. State, 222 Md. 290 (1960); Pierce v. State, 34 Md. App. 654 (1977), cert. den. 434 U.S. 907 (1978), Annot., 67 A.L.R.2d 245 (1950).

“Fact” is defined as meaning a “thing done; an action performed or an incident transpiring; an event or circumstance, an actual occurrence.” Black's Law Dictionary, 531 (5th Ed. 1979). In distinguishing law from fact, it is said that “law is a principle; fact is an event. Law is conceived; fact is actual.” Id., at 532.

We conclude that the passage attempted to be read by the appellant’s counsel was not a statement of law, but was an argument of factual opinion and was properly excluded by the trial court. The proposed passage was merely an opinion by the author of the statement as to the relative value of identification testimony. In addition, the appellant’s counsel failed to identify the source of the quote and therefore, the court was unable to ascertain whether the source was recognized as authoritative by the legal profession. See, Phillips v. State, 6 Md. App. 56 (1968). We note that the appellant was not precluded from arguing that the identification in his case was weak and therefore not credible; he was only precluded from reading to the jury another person’s belief as to the value of identification testimony. The appellant’s counsel in fact argued at great length that “... [an identification is] one of the weakest kinds of evidence that there is.”

The appellant’s final contention on appeal concerns the State’s closing argument, which the appellant maintains presents three separate grounds for reversal. In discussing each of the three alleged abuses by the State’s Attorney, we must keep in mind the rule as enunciated in Wilhelm v. State, 272 Md. 404, 412 (1974):

“[A]s to summation, it is, as a general rule, within the range of legitimate argument for counsel to state and discuss the evidence and all reasonable and legitimate inferences which may be drawn from the facts in evidence; and such comment or argument is afforded a wide range____Moreover, if counsel does not make any statement of fact not fairly deducible from the evidence his argument is not improper, although the inferences discussed are illogical and erroneous.”

The court also stated:

“[T]he conduct of the trial must of necessity rest largely in the control and discretion of the presiding judge and an appellate court should in no case interfere with that judgment unless there has been an abuse of discretion by the trial judge of a character likely to have injured the complaining party.” Id., at 413; Esterline v. State, 105 Md. 629, 637 (1907).

During the prosecutor’s closing argument to the jury, she stated that the victim is “not used to taking the stand in front of you people”, implying that the witness had never testified in court before. The appellant’s objection based on the lack of evidence indicating that it was the witness’ first time testifying was overruled by the court as being unimportant in the light of the broad latitude given closing argument. We agree. We find no abuse of discretion by the trial judge in overruling the objection, and, in any event, the statement was not so flagrant as to have deprived the appellant of a fair trial. Wilhelm v. State, supra.

Later, in closing argument, the prosecutor stated: “We know for sure that the victim now knows that the nickname of this man here is ‘Reds’.” Finding no evidence that the appellant’s nickname was “Reds,” the court sustained defense counsel’s objection to the statement and instructed the jury to disregard the remark. After that exchange, the prosecutor again referred to the appellant as “Reds,” and again appellant objected and moved for a mistrial. The court denied the motion for a mistrial and instructed the jury: “... there is no evidence in this case that the Defendant has a nickname of ‘Reds’ or that the Defendant lives in the 1500 block Fairmotmt Avenue....” Although there was no direct evidence linking the appellant with the name of “Reds” and the aforementioned residence, there was indirect evidence through which such a logical link was fairly deducible. Officer Bland testified that the victim told him he knew his assailant as “Reds,” who lived on Fairmount Avenue, and the victim identified the appellant as his assailant. Thus, the inference is that “Reds” was the assailant, and the assailant was the appellant. Therefore, that portion of the State’s summation was based on reasonable and legitimate inferences drawn from the evidence. The question of whether or not to grant a mistrial is within the sound discretion of the trial judge, Collins v. State, 14 Md. App. 674 (1972), cert. den. 409 U.S. 882 (1972), and will only be disturbed on appeal when there is an abuse of that discretion. No such abuse is present in this case.

Finally, the appellant challenges the prosecutor’s comment to the jury that what happened to the victim was “... a very, very ugly experience. This is the kind of thing, a one on one, that goes on everyday in the streets of Baltimore. It’s the kind of thing that is keeping people prisoners in their own homes.” Although we do not condone these comments, we do not feel that the trial judge abused his discretion in overruling the objections. In Matthews v. State, 3 Md. App. 555 (1968), the prosecutor’s comment that the jury “acts as a protective force to the citizens of Montgomery County” was not held to have constituted prejudicial error. In Guajardo v. State, 363 S.W.2d 259 (Tex. Crim. App. 1963), cited with approval in Wilhelm v. State, supra, the Texas Court of Criminal Appeals permitted the prosecutor to argue to the jury in opening statement: “So bear that in mind, that you are the conscience of your community. You are going to speak out for this community and let the rest of the state know exactly what this community thinks about people that kill law officers.” Id., at 433. The Wilhelm court noted that “... we must give due weight to the conclusion of the trial judge, who witnesses the presentation and heard the actual remarks — in the context in which they were made, in the trial arena — and who found no prejudice.” Id., at 436. In the instant case, the trial judge did not abuse his discretion when he ruled that the remarks by the prosecutor were not prejudicial and that they did not require remedial action.

Judgment affirmed.

Costs to be paid by appellant.

      . At both the trial and the pre-trial suppression hearing, Brown testified that he did not give the police a name or nickname of his assailant. In ruling on the motion, the trial judge must have concluded that the testimony of the police officers concerning the description given was accurate.

      . At the suppression hearing, Brown identified the appellant and was asked, “Are you remembering him because he’s the person that was brought to you at your house later that day?” Brown responded, “I identified him because he’s the one that robbed me.”