author: Wilner, J.,

text:
    WILLIAM JOSHUA LEONARD v. STATE OF MARYLAND
    [No. 44,
    September Term, 1980.]

      Decided October 10, 1980.

      The cause was argued before Moore, Lowe and Wilner, JJ.

      Joseph H. Rouse, Assigned Public Defender, for appellant.

      Maureen O’Ferrall, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and Stephen R. Beard, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant was charged in a twelve-count indictment with armed robbery and various related offenses, all arising out of the robbery of a Texaco service station on February 12, 1979. After a jury trial in the Circuit Court for Anne Arundel County, he was convicted on seven of the twelve counts and, after merging two of the seven, the court sentenced him on the remaining five counts for a total of thirteen years.

Brenda Bates, the manager of the station on duty at the time of the robbery, testified that appellant walked into the station office on the day in question, engaged her in conversation for some twenty minutes, and then demanded money. In the absence of a response from Ms. Bates, appellant reached across the counter and attempted to pull out the cash drawer. Ms. Bates slammed the drawer shut, whereupon appellant pulled a gun and fired at her. Fortunately, she was not hit, although it appears that either the bullet or the gaseous discharge grazed her neck, leaving a bruise. Appellant then fled, taking with him $5.00 that had been in the cash drawer.

Ms. Bates identified appellant in court as her assailant and also identified a tan jacket that she said he was wearing at the time of the robbery. Gary Lee Jones, a friend of appellant, said that later that afternoon (of the 12th) he saw appellant wearing the same tan jacket. Appellant was upset and asked Jones if he could exchange his tan jacket for a maroon jacket owned by Jones. The next evening, February 13, Detective Beans, of the Annapolis police department, returned Jones’ maroon coat and retrieved appellant’s tan jacket. Beans testified that he found the maroon coat in appellant’s car when he arrested appellant on the 13th.

There was a good bit of other evidence connecting appellant to the incident at the Texaco station, but, for the purpose of considering the issues necessary to be discussed in this appeal, what has heretofore been recited will largely suffice.

(1) "Was the Trial Judge incorrect in his ruling on July 17, 1979 in refusing to dismiss the indictment against the Appellant since he had not been tried within one hundred twenty days as mandated by Rule 746 of the Maryland Rules of Procedure?”

Maryland Rule 746 a, as it read in June, 1979, provided that "[w]ithin 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 . . ., a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723. .. .” On June 25, 1979, the Court of Appeals filed an Opinion in State v. Hicks, 285 Md. 310 (1979), in which it concluded that (1) the requirement that a case be brought to trial within 120 days, absent a postponement "for extraordinary cause shown,” was mandatory and not directory, and (2) the sanction for its violation was dismissal of the charges lodged against the defendant. See 285 Md. at 318.

Appellant, as noted, had been arrested on February 13, 1979. He was indicted on February 26, and arraigned on March 12, at which time the public defender entered his appearance. On July 17, 1979, the morning of trial, appellant moved to dismiss the indictment on the ground that he had not been brought to trial within 120 days, as then required by Rule 746 a. The court found as a fact that trial had been scheduled within the 120-day period, that the State was prepared to go ahead at that time — June 12,1979, that defense counsel had requested and obtained a postponement, and that the 120-day period had elapsed because of that postponement. Accordingly, the court concluded that appellant had waived the benefit of the rule.

The simple answer to appellant’s first contention is that the sanction of mandatory dismissal, which emanates solely from Hicks, is not applicable to this proceeding. As the Court of Appeals subsequently concluded, 285 Md. at 334, 338, the mandatory sanction of dismissal applies "only to future criminal prosecutions and only to those pending cases where, as of our mandate in this case, there have been no appearances of counsel or first appearances of defendants pursuant to Rule 723.” The Court’s mandate in Hicks issued on July 25, 1979; that is the effective date of the Hicks interpretation of Rule 746.

Whether the court was correct or incorrect in its conclusions as to waiver, the fact is that appellant was not entitled to a dismissal of the indictment because of the failure to bring the case to trial within 120 days. We therefore find no error in the refusal of the court to dismiss the indictment by reason of the violation of Rule 746 alleged in this case.

(2) "Was the Appellant denied the right of confrontation by the Trial Judge when his counsel was refused the right to see the victim’s written statement after she had admitted on cross examination of giving one and as a consequence was then not able to cross examine her from it?”

During the cross-examination of Ms. Bates, this colloquy occurred:

"Q Now, you’ve testified with regard to this case, after you were — after the police came, did at any time you give a written statement to the police?
A Just that night after it happened.
Q You gave a written statement that you signed?
A Well, they wrote it and I signed it.
MR. ROUSE [Defense Counsel]: May I have a copy of that?
MR. BEARD [State’s Attorney]: May we approach the Bench, Your Honor?
COURT: Yes.
(BENCH CONFERENCE OUT OF HEARING OF JURY)
MR. BEARD: Your Honor, this is the first time Mr. Rouse has formally asked me for this document and he’s conducting what I think to be a fishing expedition. If he’s got a prior inconsistent statement in mind, he’s certainly not laying a foundation for it. He’s just grabbing at straws, and this is not how one approaches a properly admitted prior inconsistent statement.
MR. ROUSE: I understand in the case law, Your Honor, that once the witness has testified I am entitled to any prior statement she might have given to the police in regard to the case.
COURT: If it’s exculpatory.
MR. ROUSE: Well, Your Honor, I have never seen the statement. I don’t know.
COURT: Well, you —
MR. ROUSE: I might point out to his Honor that Mr. Beard has previously approached the Bench and said to Your Honor, during the course of the discussion about the jacket, that the woman said in his office that that was the jacket, and she’s denied that on the stand, and that’s certainly exculpatory.
MR. BEARD: She said it was in my office, that Detective Harrington showed her the jacket.
COURT: Yes, nothing — nothing inconsistent about what she said and what Mr. Beard said.
MR. ROUSE: She never said she identified it in the office.
COURT: Well, she said she —
MR. ROUSE: So, in any event, I am requesting his Honor to order the State’s Attorney to give me a copy of the lady’s statément she — written statement she gave with regard to this case to the police right after —
COURT: No, I’m not going to do that. It [sic] it’s anything in there that’s exculpatory, you are entitled to see it. If it’s not — I’ll read it if you want me to.
MR. ROUSE: Do you want us to stay up here while you’re reading the statement?
COURT: No.
(END OF BENCH CONFERENCE)
MR. ROUSE: May we approach the Bench again, Your Honor?
COURT: Yes.
(BENCH CONFERENCE OUT OF HEARING OF JURY)
MR. ROUSE: I assume then you’re going to deny me the right to look at that statement?
COURT: The Court’s read the statement and finds no exculpatory material in it. All right?
MR. ROUSE: Well, Your Honor, just for the record, that it is not my understanding that even though there is nothing exculpatory, there may be something in the statement that could be very well inconsistent with what she’s saying now, and under those cases that say that if I’m entitled to her statement, I would so ask for it, whether it’s exculpatory or not is not the point. It’s whether it would make a prior inconsistent statement so that we have the opportunity to cross-examine her from that.
COURT: All right.
MR. ROUSE: You’re denying it?
COURT: Yes.
(END OF BENCH CONFERENCE)
MR. ROUSE: Just so the record’s clear, would you mark that as part of the file, Your Honor?
COURT: I’ll see that it gets in the record.”

Relying on Carr v. State, 284 Md. 455 (1979), appellant contends that the court erred in not permitting counsel to inspect the statement given by Ms. Bates to the police. He argues that the appropriate test is not whether the statement was exculpatory, as suggested by the court, but rather whether it was in any way inconsistent with Ms. Bates’ testimony and thus might have value for purposes of cross-examination.

Two distinct questions are raised: one, did the court apply the correct standard in deciding to withhold the statement, and two, did it utilize the correct procedure in making that decision. The answer to both is "no.”

Carr makes clear beyond question that a defendant’s right, at trial, to inspect the prior statement of a State’s witness who has testified is not necessarily limited (1) by the rules pertaining to pretrial discovery, or (2) to statements that are merely exculpatory. When confronted with the actual testimony of a critical witness and the knowledge that the witness has given a prior statement bearing on a material issue in the case, counsel is not engaged in a mere "fishing expedition” in seeking access to the prior statement. At that point, it becomes more than a matter of casting a seine over the State’s files to see what turns up, but of directly confronting the witness; and the statement thus assumes a specific importance and relevance beyond its general value for trial preparation. See Carr, 284 Md. at 472. The test clearly is whether the statement is, or may be, inconsistent with the witness’ trial testimony, and thus usable in cross-examination. To the extent that the court judged, or appeared to judge, the issue exclusively in terms of whether the statément was exculpatory, it was plainly in error.

Even if, as the State suggests, the court tacitly considered the question of inconsistency as well, we believe that it nevertheless erred in denying counsel’s request to inspect the statement. Although, in Carr, the Court did not adopt wholesale the discovery rules initially laid down for the Federal courts in Jencks v. United States, 353 U.S. 657 (1957), it did, at pp. 460-61 of 284 Md., quote with apparent approval this passage from the Jencks Opinion, which, we feel, states but a truism in any event:

"Every experienced atrial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the report of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.” (Emphasis supplied.)

These more subtle aspects of potential inconsistency, intrinsically subjective, have to be viewed from the defendant’s perspective, and can be properly weighed only by defense counsel (with the assistance of his client). A screening of the statement by the court cannot suffice as an effective substitute. The court cannot be expected to view in the same context as defense counsel these more latent and subtle gaps or differences; nor should it purport to do so. It is for that reason as well that the court erred. If any weight is to be given to the aforequoted considerations, as we think the Court of Appeals intended, it is incumbent upon the court, under the circumstances evident here, to permit counsel to inspect the statement and determine for himself whether it is or is not usable for cross-examination. The court still retains, of course, the ultimate right to determine whether the statement, or any part of it, is admissible in evidence, either as a document or through questions propounded to the witness. The issue here is not admissibility but inspection for possible use in cross-examination.

The statement in question was subsequently included in the record, as the court promised. We have reviewed it and, although it is generally consistent with Ms. Bates’ testimony, we cannot conclude that, when judged against the principles noted in Jencks, it is entirely so, to the point of making the court’s error harmless beyond a reasonable doubt.

In light of this conclusion, it is necessary that the convictions be reversed. It therefore becomes unnecessary to address the remaining issues raised by appellant, none of which concern the sufficiency of the evidence to sustain the convictions.

Judgments reversed; case remanded to Circuit Court for Anne Arundel County for new trial; costs shall not be reallocated, pursuant to Maryland Rule 1082 f.

      . The rule has since been amended to allow 180 days rather than 120. Moreover, by Laws of Maryland, 1980, ch. 378, effective July 1, 1980, the standard for permissible continuance is "good cause shown” rather than "extraordinary cause shown.”

      . See Yuen v. State, 43 Md. App. 109, 116 (1979), cert. den. 286 Md. 756 (Sept. 10, 1979), cert. den. 444 U.S. 1076.

      . This case illustrates well and precisely the importance of the considerations mentioned in Jencks.

      In her statement to the police, Ms. Bates related the incident as follows: "As he entered the gas station I was putting up the cigarettes behind the counter. The suspect approached me and asked me 'Do you need any help? I told him no because I just had hired someone lately. The suspect then stated Do you own the place’? I told him No that I am just the manager. The suspect then said give me your money.’ I said No.’ The suspect stated that you better give me all your money.’ I said that I did not have any.’ The suspect said I know you have money in the middle drawer and reached over the counter and stuck his finger into the middle drawer.”
      It would appear from this recitation that the confrontation was a rather quick one. Yet, in her trial testimony, Ms. Bates said that she and appellant were engaged in conversation for 15 or 20 minutes, and that "fact” was stressed by the prosecutor in arguing the reliability of her identification of appellant.
      Similarly, in her police statement, Ms. Bates described the gun as "a dark colored revolver about two inch barrel,” but she stated at trial that she didn’t see the gun and was unable to describe it.


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MARYLAND v. JESSIE ALFRED ARMSTRONG STATE OF MARYLAND v. ANTHONY LAMONT LESLIE
    [No. 47,
    September Term, 1980.]
    [No. 105,
    September Term, 1980.]

      Decided October 10, 1980.

    The cause was argued before Melvin, Wilner and Couch, JJ.

      F. Ford Loker, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sandra A.

      O’Connor, State’s Attorney for Baltimore County, Jeffrey Himmelstein, Assistant State’s Attorney for Baltimore County, and Robert W. Lazzaro, Assistant State’s Attorney for Baltimore County, on the brief, for appellants.

      Michael Braudes, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Thomas J. Saunders, Assistant Public Defender, on the brief, for appellee Armstrong. Richard M. Karceski for appellee Leslie.
   Wilner, J.,

delivered the opinion of the Court.

Two wrongs may not make a right, but they can create some sticky issues on appeal, which are what we have here.

The first wrong was committed by the Circuit Court for Baltimore County; it acted precipitously in dismissing pending indictments against appellees when the Court of Appeals filed its first Opinion in State v. Hicks, 285 Md. 310 (1979). The State then compounded the error when it aborted its appeals from those actions and attempted to salvage the prosecutions by obtaining new indictments. The question before us is whether the Circuit Court again erred when it frustrated that attempt by dismissing the subsequent indictments.

Maryland Rule 746 a, as it read in June, 1979, provided that "[w]ithin 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 ..., a trial date shall be set which shall be not later than 120 days after the appearance or waiver of counsel or after the appearance of defendant before the court pursuant to Rule 723 ....” On June 25,1979, the Court of Appeals filed its initial Opinion in Hicks, in which it concluded that (1) the requirement that a case be brought to trial within 120 days, absent a postponement "for extraordinary cause shown,” was mandatory and not directory, and (2) the sanction for its violation was dismissal of the charges lodged against the defendant. See 285 Md. at 318.

To say that this decision (which overruled the Court’s earlier holding in Young v. State, 266 Md. 438 (1972), and announced a new, and wholly unexpected, method of enforcing the Rule) caused some consternation among prosecutors and trial courts throughout the State would be the epitome of understatement. It appeared to place in jeopardy dozens — perhaps hundreds — of pending criminal prosecutions, as a result of which the Attorney General, on July 13, 1979, moved the Court to reconsider what it had done. On July 19, 1979, the Court issued a second Opinion, 285 Md. at 334, denying the motion for reconsideration but determining that the rule laid down in the first Hicks Opinion should operate prospectively only, "applying only to future criminal prosecutions and only to those pending cases where, as of our mandate in this case, there have been no appearances of counsel or first appearances of defendants pursuant to Rule 723.” 285 Md. at 338.

The Court’s mandate issued on July 25, 1979; that is the effective date, so to speak, of the Hicks interpretation of Rule 746.

The charges against Messrs. Armstrong (No. 47) and Leslie (No. 105) were in the "pipeline” when the first Hicks Opinion was filed. Armstrong had been arrested September 23, 1978, and indicted for armed robbery and related offenses on November 6, 1978. He was "arraigned” on November 22, and, on November 30, defense counsel entered his appearance. Trial was scheduled, and postponed, on three occasions: December 20, 1978, because a jury was unavailable; February 26, 1979, because defense counsel was ill; May 1, 1979, because a judge was unavailable. Four days after the first Hicks Opinion was announced — June 29, 1979 — Armstrong filed a motion to dismiss the indictment for failure to bring the case to trial within 120 days. On July 3, 1979, the trial court, without waiting for the Court of Appeals mandate to issue, dismissed the indictment, solely on the basis of Maryland Rule 746, as interpreted in the first Hicks Opinion.

The State’s initial response to the dismissal was to file an appeal to this Court, which it did on July 18, 1979, the day before the Court of Appeals issued its second Opinion. Had that appeal been prosecuted, in light of the second Hicks Opinion, it is likely that the dismissal would have been reversed and the case remanded for further proceedings. But the State chose a different strategy. On August 21,1979, it dismissed the appeal and, two days later, moved the trial court to reconsider its July 3 decision. That the court declined to do, however, concluding, on September 19, 1979, that it had no authority to reconsider its order. No appeal was taken from that action.

Finding itself then out of court entirely, the State re-indicted Armstrong for the same offenses. Armstrong would have none of that, however, and moved to dismiss the new indictment on the grounds that it represented a deprivation of due process of law, his right to a speedy trial, and his privilege against double jeopardy. The court rejected those claims but, on January 8, 1980, dismissed the indictment "on the issue that I will call res judicata or Maryland Rule 746.” The court’s theory, more precisely, was that (1) the July 3 dismissal must be regarded as having been with prejudice, and when the State withdrew its appeal, that dismissal became final and binding and thus served to bar a re-prosecution, and (2) alternatively, as more than 180 days had, by then, elapsed since Armstrong’s "arraignment,” or the first appearance of counsel, to permit a re-prosecution at that stage would serve only to circumvent the letter, spirit, and intent of Rule 746.

The State’s appeal in No. 47 is from that decision, dismissing the second indictment.

The saga of appellee Anthony Leslie raises the same issues. Leslie was arrested September 5, 1978, and, like Armstrong, was charged with armed robbery and related offenses. A formal indictment was returned October 9,1978, and on October 20 defense counsel entered his appearance and elected a jury trial. Trial was initially scheduled for January 9, 1979, but was postponed, over Leslie’s objection, because of a crowded docket — the case could not be reached that day. The same thing occurred on March 16, 1979, the next scheduled date, and trial was reset for July 10, 1979. Hicks I, of course, intervened; and, on July 5, 1979, Leslie moved to dismiss the indictment, with prejudice, for failure to "bring him to trial as prescribed by Maryland Rule 746.” The delay at that point was 10 months.

Following a hearing on July 10, the court granted Leslie’s motion and dismissed the indictment on the basis of the first Hicks Opinion. The State filed an immediate appeal — July 11 — but, on August 17, 1979, dismissed the appeal and moved the trial court to reconsider its July 10 order in light of the revised Hicks. As with Armstrong, the court refused to reconsider its action on the ground that it had no authority to reopen the dismissal. A new indictment, based on the same alleged offenses, was obtained October 15,1979; a motion to dismiss was filed November 2; and the motion was granted, for the same reasons expressed in the Armstrong case, on January 9, 1980. This appeal followed.

As noted in the preceding discussion, in dismissing the indictments now before us, the court acted upon two theories: (1) that the dismissal of an indictment with prejudice is a final binding judgment (until overturned), and when the State dismissed its appeal, the judgment, even if based on an erroneous construction of the law, became res judicata, barring the State from relitigating the issues concluded by it; and (2) that to permit a prosecution at this time, even if founded upon a new indictment, would serve to circumvent, and thus to frustrate the requirement of Rule 746.

As the trial court seemed to recognize, these concepts are closely interrelated; they merely approach the problem from somewhat different perspectives.

The State’s perspective is altogether different. Relying primarily on Irvin v. State, 276 Md. 168 (1975), it argues that, subject only to double jeopardy constraints, which are not present here, the State is fully at liberty to bring new indictments based upon the same charges that were earlier dismissed, whatever the reason for the dismissal and whether the dismissal was with or without prejudice. We think the State’s reliance on Irvin is misplaced, however, and its argument much too simplistic. Notwithstanding some rather broad language in the Opinion, Irvin dealt with an entirely different issue than that presented here.

In Irvin, parts of a multi-count indictment were dismissed by the court prior to trial; the State nol prossed the remaining counts and appealed the dismissal. While the appeal was pending, the defendant, Irvin, was re-indicted on similar charges, tried on that second indictment, and convicted. The issue before the Court of Appeals, upon Irvin’s appeal from the ultimate conviction, was a jurisdictional one. Certiorari was granted to consider the "narrow point” of whether "the State could proceed to trial on the latter indictment while the appeal on the fírst was still pending,” (e mphasis supplied) the contention being that the State’s appeal from the dismissal of the first indictment, during its pendency, had ousted the trial court of jurisdiction to consider the second. 276 Md. at 170, 171.

The Court concluded that the loss of jurisdiction, asserted by Irvin, extended only with respect to the particular indictment involved in the State’s appeal, and did not preclude the State from obtaining a new indictment and proceeding to trial on it. It was in that context — the jurisdictional one based entirely upon the pendency of the appeal — that the Court observed (citations omitted) at p. 172:

"There is no question but that a criminal defendant may be indicted more than once for the same offense... and that any irregularity in a prior indictment may be corrected in a later indictment upon which the defendant may be tried. . . . [Emphasis supplied.]
"If an indictment is dismissed, the order is a final judgment as regards that indictment.... and is appealable .... If the State appeals, the indictment which was dismissed comes within the exclusive jurisdiction of the appellate court, but not an indictment which may be returned later.” (Emphasis in the original.)

Hopefully with tongue in cheek, the State suggests that the only difference between Irvin and the cases subjudice is that the State’s appeal was still pending in Irvin when the new indictments were returned. That, of course, is a crucial difference. The jurisdictional issue, which was all that was considered and decided in Irvin, is simply not present when the appeal has been dismissed prior to the return of the subsequent indictment. That alone serves to distinguish Irvin and render it inapposite.

More, perhaps, than the holding in Irvin, however, the State seeks succor from some of the language used in the Opinion — that quoted above. Those general statements, while inherently true, cannot be read out of context. Whether a new indictment can properly be returned depends, to a large extent, on the circumstances under which the first indictment was dismissed. Irvin referred to a dismissal based upon an irregularity in the indictment itself, and did not address at all, even in the limited context before it, the situation of a dismissal for some more substantive extrinsic reason — by reason of a speedy trial violation, for example, or because the defendant had already been placed in jeopardy for the same offense, or because the statute of limitations had run on the prosecution.

All that was determined in Irvin was that the mere pendency of an appeal did not preclude a new indictment. The issue here, of course, is whether the dismissal of the appeal, leaving the lower court judgment intact, also had that effect, particularly where the judgment rested upon the purported violation of a speedy trial requirement.

The factual circumstances of the cases sub judice are, of course, somewhat unusual; but the issue raised by them is not a novel one. It has been addressed in varying contexts and with varying results, in other States.

In some instances, the result has been governed by specific statutory language. In State v. Rolax, 479 P.2d 158 (Wash. App., 1970), and Crockett v. Superior Court, 535 P.2d 321 (Cal., 1975), for example, statutes that required the dismissal of charges not brought to trial within 60 days expressly barred re-prosecution only in the case of misdemeanors, thus either expressly or implicitly allowing re-indictment in felony cases. Compare Bryant v. Blount, 261 So. 2d 847 (Fla. App., 1972), cert. den. 267 So. 2d 82, and State v. Eberhardt, 381 N.E.2d 1357 (Ohio App., 1978), applying statutes that required a discharge and barred re-prosecution, whether for felony or misdemeanor.

Those cases, because governed by specific statutory provisions, are not especially relevant here. More significant are Commonwealth v. Whitaker, 359 A.2d 174 (Pa., 1976); State v. Johnson, 217 N.W.2d 609 (Iowa, 1974); and Commonwealth v. Ludwig, 345 N.E.2d 386 (Mass., 1976), where, as here, there was no statutory direction in terms of re-prosecution.

Whitaker involved a Pennsylvania rule requiring trial within 270 days following arrest, and permitting the court to "dismiss the charges with prejudice” in the event of a violation (see Pa. R. Grim. P. 1100). On the 268th day, having lost a suppression motion, the State moved, successfully, to nol pros the complaint on the ground of lack of evidence. Two months later, it sought to reopen the case by moving to vacate the nol pros. The court granted the State’s motion but then, on Whitaker’s motion, dismissed the charges with prejudice for failure to comply with the 270-day rule. Affirming the dismissal, the Pennsylvania Supreme Court observed that "the purpose of the rule would be wholly frustrated if the position taken by the prosecution here were to be accepted.” 359 A.2d at 176. See also Commonwealth v. Hamilton, 297 A.2d 127 (Pa. 1972); and Commonwealth v. Garbett, 390 A.2d 208 (Pa., 1978). Compare Commonwealth v. Brightwell, 406 A.2d 503 (Pa., 1979), and see Marshall and Reiter, A Trial Court Working With Rule 1100, 23 Vill. L. Rev. 284 (1977-78).

State v. Johnson, supra, involved an Iowa statute requiring trial within 60 days. The defendant was initially arrested in December, 1971 for carrying a concealed weapon. On May 15, 1972, the charge was dismissed for lack of speedy trial. It was "reinstated” nine days later, but was dismissed again on October 6, 1972, for the same reason. On October 18, a new information charging the same crime was filed. Johnson again moved to dismiss, but, on that occasion, the court rejected his motion and he was ultimately brought to trial within 60 days of the new information and convicted. Reversing, the Court observed (217 N.W.2d at 612):

"If the State is free to commence repeated prosecutions for the same offense following undue delay in going to trial, subject only to the running of the statute of limitations, there is nothing to deter delays at prosecution’s convenience in pushing forward to trial, and defendant’s constitutional right to a speedy trial is rendered largely meaningless.”

Upon this basis, the Court concluded that another statute expresssly permitting re-prosecution of felony charges following a dismissal would not apply to a dismissal "based on denial of a speedy trial.” Id. at 612.

The Massachusetts court reached the same conclusion in Ludwig, supra. The defendant there was initially charged with larceny and conspiracy in the State’s District Court. The case came up for trial on November 28, 1973, at which time the defendant requested a jury trial, the State asked for a postponement, and, over Ludwig’s objection, the court continued the case until February 6,1974. This was in violation of a statute prohibiting a continuance, over objection, for longer than 10 days. The case came on for trial again on February 21, at which time the court granted a defense motion to dismiss the charge for lack of a speedy trial. In May, 1974, Ludwig was indicted for the same offenses dismissed by the District Court. His motions to dismiss were denied, and he was ultimately brought to trial in the Superior Court and convicted. Reversing, the Court concluded that the interests sought to be protected by the guaranty of a speedy trial "are best served by a rule which treats a dismissal based on the denial of that right as an absolute discharge with prejudice against the Commonwealth,” and thus held that the dismissal in the District Court "is a bar to any subsequent prosecution for the same offense....” 345 N.E.2d at 389.

Each of these courts — Pennsylvania, Iowa, and Massachusetts — relied in part on the concept set forth in §4.1 of the ABA Standards Relating to Speedy Trial (Approved Draft 1968). That section provides, in relevant part:

"If a defendant is not brought to trial before the running of the time for trial, as extended by excluded periods, the consequence should be absolute discharge. Such discharge should forever bar prosecution for the offense charged and for any other offense required to be joined with that offense.”

In the Commentary to that section, it is noted that the effect of a discharge is often not dealt with explicitly in speedy trial statutes, but that,

"[t]he position taken here is that the only effective remedy for denial of speedy trial is absolute and complete discharge. If, following undue delay in going to trial, the prosecution is free to commence prosecution again for the same offense, subject only to the running of the statute of limitations, the right to speedy trial is largely meaningless. Prosecutors who are free to commence another prosecution later have not been deterred from undue delay.”

Not all courts have taken the view expressed in the ABA Standard. See, for example, McGee v. Sheriff, 470 P.2d 132 (Nev., 1970); also Annot., Speedy Trial Reindictment, a somewhat dated (1953) analysis appearing in 30 A.L.R.2d 462. However, the more recent cases, for the most part, have adopted it, and for good reason. It is founded upon common sense and sound principles of public and jurisprudential policy.

Accordingly, we conclude that, in the absence of any statute validly mandating a different result, when a criminal charge is dismissed for want of a speedy trial, whether based on the Sixth Amendment or Rule 746, the State is not at liberty to revive the prosecution by means of a new charging document. It may, if otherwise permitted, appeal the dismissal; but it may not simply ignore it.

The concept upon which we rely is not precisely that of res judicata, although it embodies most of the essentials of that broader doctrine. The dismissal of the indictments on the basis of Hicks clearly amounted to final judgments upon the same claim between the same parties. That the judgments may have been erroneous ones would be of no consequence in determining the applicability of res judicata. See Beall v. Pearre, 12 Md. 550, 566 (1859); Thomas v. Malster, 14 Md. 382, 388 (1859); Gibbs v. Didier, 125 Md. 486, 499 (1915); Annapolis Urban Renewal Authority v. Interlink, Inc., 43 Md. App. 286, 297-98 (1979); 2 Freeman on Judgments, 5th Ed., § 727. The normal remedy for correcting error in a final judgment is an appeal, not a new action. As stated by Freeman, supra, "Neither can the force of a judgment as res judicata be destroyed or impaired by showing that it was clearly erroneous and ought not to have been rendered, if the court had jurisdiction. ...”

The only element of res judicata that is arguably lacking here is that which requires the prior judgment to be one that was rendered "on the merits.” Traditionally, civil judgments of nonsuit, non prosequitur, or nolle prosequi, and dismissals for failure to prosecute the action diligently have not been regarded as rendered on the merits sufficient to estop a subsequent action on the same claim. See 2 Freeman on Judgments, 5th Ed., §§ 726, 751, 753; McQuaid v. United Wholesale Aluminum Supply Co., Inc., 31 Md. App. 580, cert. den. 278 Md. 737 (1976). But, as Freeman also notes (§ 724), the term "merits,”

"... may refer to the merits of the whole case or controversy between the parties, or it may be restricted to the merits of some particular issue of law or fact, the adjudication of which may prevent a consideration and determination of the substantial rights of the parties upon the whole controversy. There is no doubt about the conclusiveness of the judgment as to the matters actually adjudicated even though it is a judgment on the merits only in the latter restricted sense....” (Emphasis supplied.)

The "restricted sense” of the requirement alluded to by Freeman has special relevance, we think, in the context of a dismissal based upon lack of a speedy trial, for the reasons already noted. The right of a defendant to have criminal charges lodged against him resolved promptly is of Constitutional dimension and is imbued with public policy considerations of the highest magnitude. Both the Court of Appeals, through Rule 746, and the General Assembly, through Md. Ann. Code art. 27, § 591, have set specific limits in that regard. Effective enforcement of that right, and those limits, even in the absence of Hicks, requires that a dismissal on speedy trial grounds, which does "prevent a consideration and determination of the substantial rights of the parties upon the whole controversy,” be deemed a judgment on the merits, whatever the result might be in a civil context to which these special considerations are inapplicable.

Accordingly, we conclude that the State was barred from re-prosecuting appellees on the charges earlier dismissed, and that the second indictments were properly dismissed.

Judgments affirmed; appellants to pay the costs.

      . Effective November 16,1979, the Court amended Rule 746 a to change the 120-day requirement to 180 days.

      . Section b of the Rule permitted the county administrative judge or a judge designated by him to grant a change of trial date "for extraordinary cause shown.” That part of the Rule hasn’t changed; but, by Laws of Maryland, 1980, ch. 378, effective July 1, 1980, the General Assembly has authorized the administrative judge to grant a postponement "for good cause shown.” (Emphasis supplied.)

      . According to the record, it appears that Armstrong had initially requested a court trial, and the December 20 trial date was scheduled on that premise. On December 14, however, he requested a jury trial, and no juries were available on the week of the 20th — Christmas week.

      . The transcript of that proceeding shows that the State argued the distinction between the Constitutional (Sixth Amendment) right to a speedy trial, which requires a balancing test, and a defendant’s right under Maryland Rule 746, which does not. It is clear from the court’s remarks that it acted only under the Rule. The indictment was dismissed because Armstrong was not brought to trial within 120 days, and not because his Sixth Amendment right was transgressed.

      . A remand would likely have been required because the lower court acted solely on the basis of Hicks, which was not applicable.

      . The record shows that Leslie filed a cross-appeal based upon the court’s refusal to grant his motion to dismiss on Sixth Amendment speedy trial grounds, and that he also moved to dismiss the State’s appeal on the ground that it was not timely filed. He has argued neither of these questions in his brief, however, and we shall therefore not consider them.

      . The Opinion in Irvin does not indicate the reason for the dismissal of the first indictments. The State’s brief in the case, however (No. 8, Sept. Term, 1975), suggests that they were dismissed primarily on the ground that they failed to charge a criminal offense.

      . Unlike the situation in Maryland (see Maryland Rule 782), it appears that, in Pennsylvania, court approval was required for a nolle prosequi and that the State, with court approval, could subsequently vacate the nolle prosequi. Although the procedure used in Whitaker — entering a nolle prosequi and then seeking to vacate it — is not precisely the same as a dismissal followed by re-indictment, it does, in our judgment, raise essentially the same issue.

      . The 10-day continuance limit was viewed by the trial court, and the appellate court, as being in the nature of a speedy trial rule.

      . See, for example, the Intrastate Detainer Act, Md. Ann. Code art. 27, § 616S (c), commented on in Parks v. State, 41 Md. App. 381 (1979), aff'd on other grounds 287 Md. 11 (1980).


author: Liss, J.,

text:
    IN RE: VIRGIL M.

      [No. 48,

    September Term, 1980.]

      Decided October 14, 1980.

    The cause was submitted on briefs to Mason, Liss and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and
      Victoria A. Salner Keating, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Bonnie A. Travieso, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Eric E. Wright, Assistant State’s Attorney for Montgomery County, for appellee.
   Liss, J.,

delivered the opinion of the Court.

As a result of an adjudication hearing held on December 3, 1979, in the District Court of Maryland for Montgomery County sitting as a Juvenile Court, Virgil M., the appellant, a seventeen year old boy, was found to be delinquent because of an assault committed upon his mother. At a subsequent disposition hearing held in the same court on January 3, 1980, the appellant was committed to the custody of the Secretary of Health and Mental Hygiene and placed under the supervision of the Juvenile Services Administration.

On appeal, the appellant contends:

1. That the evidence was insufficient to sustain the Juvenile Court’s finding of delinquency;
2. That the court failed to comply with the provisions of Maryland Rule 915 b; and
3. That appellant was denied the right of allocution at the disposition hearing.

1.

Maryland Code (1980) Section 3-801 (k) of the Courts and Judicial Proceedings Article defines "delinquent act” as "an act which would be a crime if committed by an adult.” Subsection (1) defines a "delinquent child” as "a child who has committed a delinquent act and requires guidance, treatment or rehabilitation.” At the adjudication hearing, the Juvenile Court judge had before him testimony; that Virgil came into the bedroom of his mother and performed a "karate kick” which landed in close proximity to her face; that after being admonished by his mother to discontinue such behavior, Virgil "grabbed” her by her forearms, "squeezed with all he had and started pushing [her] around”; and that the mother was "very frightened and very scared” but was not injured.

If believed by the court, there was sufficient evidence from which the judge could and did find beyond a reasonable doubt that the child had committed an assault and battery upon his mother, which act if committed by an adult would have amounted to the commission of a crime. See Aye v. State, 17 Md. App. 32, 299 A.2d 513 (1973).

We, therefore, find no merit in the contention that the evidence was insufficient to sustain the lower court’s finding of a delinquent act.

2.

Maryland Rule 915 b provides, in pertinent part, as follows:

The disposition made by the court shall be in accordance with Section 3-820 (b) of the Courts Article. If the disposition hearing is conducted by a judge, and his order includes placement of the child outside the home, the judge shall announce in open court and on the record or shall prepare and file with the clerk, a brief statement of the reasons why that placement is necessary.

Rule 915 b is mandatory. In re Appeal No. 1327, Term 1975, 32 Md. App. 478, 361 A.2d 156 (1976). It refers to Section 3-820 of the Courts Article and indicates that among the reasons upon which the judge must base his determination as to the placement of a child are the best interests of the child and the feasibility of programs which allow the child to remain at home.

The State concedes that the juvenile judge did not comply with the mandatory requirements of the rule and that this case should, therefore, be remanded so that the necessary statement may be filed by the judge.

Appellant’s third issue is novel and, so far as we can determine, has never been decided in the Maryland Courts. Maryland Rule 772 d mandates the right of allocution for a criminal defendant who has been convicted of a crime and requires that the defendant be advised by the court of his right to make a statement. In interpreting this rule, we had before us Dishman v. State, 45 Md. App. 236, 413 A.2d 565 (1980), in which a convicted defendant contended that he was denied his right of allocution prior to disposition of his case. It was conceded that his counsel had argued to the court below in mitigation of the offense committed.

In the present case, the State contends:

At the disposition hearing below, Appellant’s counsel was afforded ample opportunity to speak in mitigation of sentence. A review of the transcript of the hearing reveals that there was no denial of Appellant’s right of due process because Appellant’s counsel was given a full opportunity to allocute prior to the determination of the court.

However, we pointed out in Dishman that the right of allocution is a common law right and that the court was required — even before the adoption of the rule — to address the defendant personally and inform him of his right to speak on his own behalf if he so desires. See Hill v. United States, 368 U.S. 424, 82 S. Ct. 468 (1962); Green v. United States, 365 U.S. 301, 81 S. Ct. 653 (1961).

Further, we do not find a waiver of the right of allocution when counsel spoke on behalf of his client. We agree with Mr. Justice Frankfurter’s statement in Green, which we quoted with approval in Dishman, supra, at 242: "[T]he most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.”

Rule 772 d does not specifically apply to juvenile offenders, nor is there a similar provision for the protection of these offenders in the Juvenile Causes Act. Nevertheless, we think In re Gault, 387 U.S. 1, 87 S. Ct. 1428 (1967), is controlling in this case. In discussing a juvenile court adjudication of delinquency in that landmark case, the Supreme Court, quoting from Kent v. United States, 383 U.S. 541, 562, 86 S. Ct. 1045 (1966), said: "We do not mean ... to indicate that the hearing to be held [in a juvenile waiver proceeding] must conform with all the requirements of a criminal trial or even the usual administrative hearing; but we do hold that the hearing must measure up to the essentials of due process and fair treatment.” 387 U.S. at 30. The Supreme Court went on to state, in Gault, that the due process requirements in Kent are equally applicable "in connection with a juvenile court adjudication of 'delinquency’.” 387 U.S. at 30-31.

Necessarily, the same rule must be applied in the present case which also involves a juvenile court hearing to determine the delinquency of a juvenile. We agree that a juvenile committed to a State facility suffers a deprivation of liberty and is entitled to constitutional protections. Given the solicitous regard of the law for the welfare of juvenile offenders, there is no rational basis for suggesting a lesser standard for the protection of the right of allocution of juveniles.

If, as we have said, the trial judge is required to address an adult offender personally to advise him of his right in order to guarantee that the right of allocution is not involuntarily or unknowingly waived, then the same care must be observed with respect to the juvenile’s right of allocution.

We have carefully read the record, which reveals that at the end of the proceedings the Assistant State’s Attorney said: "One person I’d like to hear from ... is Virgil.” The court responded, "Well he has counsel. I mean that’s up to he [sic] and his attorney, if he wants to say anything or not.” Immediately thereafter, the court asked the Assistant State’s Attorney if she had any additional comments and then proceeded to disposition. This colloquy was insufficient to establish that the court had personally advised the appellant of his right of allocution and that he had knowingly and voluntarily waived that right. See Brown v. State, 11 Md. App. 27, 272 A.2d 659 (1971).

We here hold that a juvenile found to be delinquent is entitled to be personally advised by the court of his right of allocution to the same extent as an adult offender under Rule 772 d, and that a waiver of that right must affirmatively appear in the record. As we have concluded that the Juvenile Court judge erred in failing to comply with the provisions of Rule 915 b and Rule 772 d, we shall vacate the disposition order in this case and remand to the District Court sitting as a Juvenile Court for a new disposition hearing.

Disposition order vacated.

Remanded for further proceedings not inconsistent with this opinion. Costs not to be reallocated.

Md. Rule 1082 f.

      . d. Allocution — Before imposing sentence the court shall inform the defendant that he has the right, personally and through counsel, to make a statement and to present information in mitigation of punishment, and the court shall afford an opportunity to exercise this right.


author: Gilbert, C. J.,

text:
    NAOMI LINTON v. CHARLES LINTON
    [No. 57,
    September Term, 1980.]

      Decided October 14, 1980.

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

      Lawrence M. Stahl, with whom was Morton Edelstein on the brief, for appellant.

      James K. Carmody, with whom were Serio, Carmody, Nichols & Childs on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

This appeal asks that we review the aged, if not antiquated, doctrine of interspousal immunity in motor vehicle negligence cases. Why, it inquires, is an action grounded in negligence so disruptive to a marriage as to preclude as a matter of public policy the bringing of the case, while a suit involving property or contract is not deemed to shake the foundations of the marital relationship. Another question posed is whether the fact that a claim cannot be asserted is a festering sore of such a nature as to cause a bursting of the marriage bonds.

Interspousal immunity has stood for years, like the Rock of Gibraltar, guarding, as it were, the sea of matrimony from an invasion by causes apt to alienate the spouses. Some of our sister States have, figuratively speaking, pounded the Rock into sand, thereby allowing it to wash away. Those jurisdictions hold that the immunity of a spouse, in negligence, is as disruptive to the marriage, if not more so, than the absence of immunity.

The day may. come when Maryland recognizes that the distinction between a suit by a spouse against a spouse in negligence differs not one iota, with respect to marital unity, than a suit in contract. This, however, is not that day. Under the circumstances of this case, we need not and do not reach the question of the continued viability of interspousal immunity with respect to Maryland. This is so because the law of the place of the tort, the lex loci delecti, the Commonwealth of Virginia, is a State that permits interspousal tort actions. Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971). The net result is that all we have to decide is whether Maryland will allow the Virginia law to be applied in Maryland courts, or whether that law is so violative of this State’s public policy that the principle of comity need not be recognized because it is "hurtful or detrimental to the interest and welfare of . .. [Maryland’s] citizens.” Lowndes v. Cooch, 87 Md. 478, 487, 39 A. 1045, 1046 (1898).

Before further discussion of the law, we shall set forth the underlying facts leading to this matter’s being in this Court.

In the late morning of October 15, 1978, Charles Linton (Linton) was operating a motor vehicle in Alexandria, Virginia. Linton was accompanied by a passenger, his wife, Naomi Linton, the appellant (appellant). Linton failed to obey a traffic signal which directed him to stop. Instead, he drove his automobile "at a high and unusual rate of speed” into an intersection. There, the Linton vehicle collided with another vehicle. All the parties lived in Maryland. Appellant was, according to her declaration, "injured, ... about the head, body and limbs,” incurred "great medical expenses,” and was unable to follow her usual pursuits. She demanded recompense in the amount of $100,000. Notice of intent to rely upon Virginia law was filed concomitantly.

The appellant’s suit was met with a demand for particulars, followed by a motion raising preliminary objection, Md. Rules 323 a 1 and 6. The motion, however, was addressed to the doctrine of spousal immunity and reasons why the "judicial fiat” abrogating that doctrine in Virginia should not be imported into Maryland. Not one word of the substance of the motion concerned Md. Rule 323 a 1 and 6. No issue of that fact was made by appellant nor the hearing judge, and, consequently, we shall attach no significance to it.

While the case was pending for hearing on the motion, Mr. Linton died. A suggestion of death was filed. The hearing judge, in the Circuit Court for Anne Arundel County, decided that:

"The case could be brought in Virginia but because of that fact, if in fact ... Virginia feels as they do. But I think to apply this law in the State of Maryland would be ... a strong violation of the public policy, I think public policy in Maryland would be ... much against the abrogation of spousal immunity so that for that reason I will grant the Motion Raising Preliminary Objection.”

Before we can determine whether the public policy of this State is violated by the use of Maryland courts to enforce a right denied here but granted in Virginia, the place of the tort, we should first set out what is meant by "public policy.” The Court of Appeals, in Maryland Trust Co. v. Mechanics Bank, 102 Md. 608, 632, 63 A. 70, 79 (1906), quoted in part from Goodyear v. Brown, 155 Pa. St. 514, 518, 26 A. 665, 666 (1893), in which the Pennsylvania Court defined a violation of public policy as "[a]nything that tends clearly to injure the public health, the public morals, the public confidence in the purity of the administration of the law, or to undermine that sense of security for individual rights, whether of personal liberty or of private property, which any citizen ought to feel, is against public policy.” Reduced, perhaps, to over simplistic terms, public policy is no more and no less than what is believed by the courts and the legislature to be in the best interest of the citizens of this State. Anything that tends to undermine or erode either the declared or the undeclared best interest of the general health or moral welfare is said to be against public policy.

The public policy of our fathers may not have been the same as their predecessors, nor is the public policy of our fathers necessarily that of ours. Societal changes are constantly taking place and the views of today’s generation usually keep pace. Public policy is not a stagnant pool but rather a river, with all of its characteristics, including flood stages and draught levels.

At issue, then, under today’s public policy, is whether Maryland courts would permit an action by one spouse against the other, based on a motor tort involving Maryland residents, but occurring in another State that allows such action, or hold that public welfare, morals, or health bars that action.

Maryland has steadfastly adhered to the common law doctrine of interspousal immunity in tort cases. See, e.g., Stokes v. Association of Independent Taxi Operators, Inc., 248 Md. 690, 237 A.2d 762 (1968); Hudson v. Hudson, 226 Md. 521, 174 A.2d 339 (1961); Ennis v. Donovan, 222 Md. 536, 161 A.2d 698 (1960); Riegger v. Bruton Brewing Co., 178 Md. 518, 16 A.2d 99 (1940); David v. David, 161 Md. 532, 157 A. 755 (1932); Furstenberg v. Furstenberg, 152 Md. 247, 136 A. 534 (1927). See also Case Note, Torts Interspousal Immunity — Maryland Abrogates Interspousal Immunity in Cases of Outrageous Intentional Torts, 8 U.B.L. Rev. 584 (1979). Nevertheless, the Court, in Lusby v. Lusby, 283 Md. 334, 390 A.2d 77 (1978), recognized an exception to the doctrine whenever the tort committed against the spousal victim is not only intentional, as in assault and battery, but "outrageous,” as where the errant spouse’s conduct transcends common decency and accepted practices. The Court, in Lusby, was cognizant of the fact that there was no marital harmony that could be preserved by denying to the wife in that case the right to pursue civil remedies for the wrong done to her because the husband had effectively destroyed the marriage through his own atrocious misbehavior. Lusby represents a safe passage past the Rock. It is a limited way to be sure, but it is a small gap that heretofore did not exist.

A question strikingly similar to that posed to us by the litigants was answered in 1963 by then Chief Judge Roszel C. Thomsen of the United States District Court for the District of Maryland in LaChance v. Service Trucking Co., 215 F. Supp. 162 (1963). In that case Mrs. LaChance, a passenger in a vehicle driven by her husband, was injured in a motor vehicle accident in North Carolina, as a result of a collision between her husband’s car and a truck of Service. North Carolina allows a wife to sue her husband in tort. The wife sued Service in the District of Maryland, and Service joined the husband as a third-party defendant. The husband sought to dismiss the third-party claim on the basis of the Maryland interspousal immunity doctrine. The husband asserted that under the law of this State a wife could not maintain a tort action against her husband, therefore, the husband may not be joined as a third-party defendant because that would amount to a violation of Maryland’s interspousal immunity doctrine.

After observing that both Maine, the LaChance domicile, and Maryland, the situs of the suit, proscribe suits in tort by spouses against each other, and citing the Maryland decisions, Judge Thomsen concluded that "the Court of Appeals of Maryland[] would hold that under the circumstances of this case there is no strong policy of the State of Maryland which would prevent the maintenance of the third-party claim for contribution based upon the substantive law of North Carolina, the place where the accident occurred.” LaChance v. Service Trucking Co., supra at 166.

The Maryland stand against actions brought in tort or negligence by one spouse against the other does not, per se, mean that this State will refuse to recognize the action if it is validly based on the law of a sister State that does not follow the spousal immunity theory. Judge Hammond (later Chief Judge), for the Court of Appeals in Texaco v. Vanden Bosche, 242 Md. 334, 219 A.2d 80 (1966), made it crystal clear that a "heavy burden” is shouldered by one who seeks to block a cause of action in Maryland courts on the premise that the case is contrary to this State’s public policy.

Two years later, then Chief Judge Hammond wrote the opinion for the Court in Harford Mutual Insurance Co. v. Bruchey, 248 Md. 669, 238 A.2d 115 (1968). That case involved a personal injury growing out of a motor vehicle accident that occurred in Virginia. Mrs. Bruchey was injured in the collision. Virginia does not allow recovery for loss of consortium. The husband brought suit in the Maryland courts seeking to recover for the loss of consortium. In invoking the law of Virginia so as to prevent the recovery, Chief Judge Hammond quoted from Texaco v. Vanden Bosche, supra:

"'Recent legal thinking is that a public policy which will permit a state to refuse to enforce rights created by the law of a sister state must be very strong indeed. See Paulsen and Sovern, 'Public Policy’ in the Confíict of Laws, 56 Colum. L. Rev. 969, 1212-16 (1956); Katzenbach, Conflicts on an Unruly Horse: Reciprocal Claims and Tolerances in Interstate and International Law, 65 Yale L.J. 1087 (1956); Reese, Full Faith and Credit to Statutes: The Defense of Public Policy, 19 U. Chi. L. Rev. 339 (1952); Sumner, The Status of Public Acts in Sister States, 3 U.C.L.A.L. Rev. 1, 25 (1955); Carnahan, What is Happening in Conflicts of Laws: Three Supreme Court Cases, 6 Vand. L. Rev. 607; Restatement, Conflict of Laws § 612 (1934); Broderick v. Rosner, 294 U.S. 629, 79 L. Ed. 1100.’ ” Harford Mutual Insurance Co. v. Bruchey, supra at 674-75, 238 A.2d at 118.

Judge Hammond went on to observe the holding of Judge Thomsen in LaChance and quoted therefrom with approval, saying:

" 'In the light of all the Maryland decisions, I conclude that the Court of Appeals of Maryland would hold that under the circumstances of this case there is no strong policy of the State of Maryland which would prevent the maintenance of [the wife’s suit against her husband] based upon the substantive law of North Carolina, the place where the accident occurred.’ ” Id. at 676, 238 A.2d at 118.

Judge Hammond then commented, "Certainly the public policy of Maryland as to recovery for consortium is no stronger than its public policy forbidding a wife to sue her husband.” Id.

We read Harford Mutual Insurance Co. v. Bruchey, supra, as approving the determination by Judge Thomsen that Maryland public policy is not so strong as to prohibit a spouse from recovering against the other spouse in the courts of this State if the action is permitted by the lex loci delecti. Our public welfare, health, and morals will not be endangered by allowing such suits to proceed to judgment. There is little likelihood of an onslaught of similar litigation in our courts.

What we perceive in this case is "merely a difference of law between the place of the wrong [Virginia] and the forum [Maryland] and not an overriding public policy of the forum.” Id. at 676, 238 A.2d at 119.

The law of the forum will not be applied to defeat the appellant’s right to sue her husband for negligence when, as here, the lex loci delecti permits that type of civil action.

Order granting preliminary objection and dismissing the appellant’s declaration reversed.

Case remanded for further proceedings.

Costs to be paid by appellee.

      . E.g., Lewis v. Lewis, 370 Mass. 619, 351 N.E.2d 526 (1976); Merenoff v. Merenoff, 76 N.J. 535, 388 A.2d 951 (1978); Surratt v. Thompson, 212 Va. 191, 183 S.E.2d 200 (1971); Richard v. Richard, 131 Vt. 98, 300 A.2d 637 (1973); Coffindaffer v. Coffindaffer, 244 S.W.2d 338 (W. Va. 1978).

      . One cannot help but wonder in the light of present day circumstances whether the doctrine continues to exist to protect the marriage or to protect an insurance carrier from possible collusion.

      . Md. Rules 323 a 1 and 6 are directed respectively to "Lack of jurisdiction over the person” and "Pendency of another action between the same parties for the same cause.”

      . The Court of Appeals has said that "if it be desirable to permit a married woman, under certain circumstances, to sue her husband in tort, this authorization should emanate from the Legislature, not from the courts.” Ennis v. Donovan, 222 Md. 536, 543, 161 A.2d 698, 702 (1960).

      . Judge Smith, in Lusby, has traced the Common Law evolution of the interspousal immunity to the present time. Those who desire to acquaint themselves with that history should read Lusby as well as the case note thereon, in 8 U.B.L. Rev. 584 (1979).

      . Judge Thomsen is now a Senior District Judge.

      . See Crowell v. Crowell, 180 N.C. 516, 105 S.E. 206 (1920), rehearing denied, 181 N.C. 66, 106 S.E. 149 (1921).

      . Original appellate jurisdiction over negligence action had not been shifted to this Court at that time. In fact, this Court was not then in existence.

      . In the instant case, it can hardly be argued that the suit will cause a strain on the marital relationship when, in fact, the death of the husband has severed the bonds of matrimony.


text:
    AARON PHILIP MAGWOOD v. STATE OF MARYLAND
    [No. 67,
    September Term, 1980.]

      Decided October 14, 1980.

    The cause was submitted on briefs to Gilbert, C. J., and Lowe and Mason, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Patricia A. Logan, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Diane G. Goldsmith, Assistant Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Mark A. Binstock, Assistant State’s Attorney for Montgomery County, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

We herein hold that whenever a criminal case has been submitted to the jury for its deliberation, a separation of the jury prior to verdict, without the express consent of the accused, is ordinarily reversible error.

The facts giving rise to our holding are uncomplicated. Aaron Philip Magwood (Magwood) was tried in the Circuit Court for Montgomery County for violation of this State’s Controlled Dangerous Substances Laws. Md. Ann. Code art. 27, § 286 (a) (1).

On appeal to this Court, Magwood argues that 1) the trial court erred when it allowed the jury, after deliberations on the verdicts had begun, to separate overnight; and 2) error was committed when a State’s witness was permitted to testify "as to his previous contacts with the falppellant.”

The State asserts that Magwood waived the right to object to the separation of the jury, and that there was no error in the admission of the challenged testimony.

Md. Cts. and Jud. Proc. Code Ann. (1980 Repl. Vol.) § 8-304 provides:

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

The Maryland cases unanimously hold that it is permissible, in the discretion of the trial judge, to allow a jury to separate prior to the submission of the case to the jury for its deliberation on the evidence. See, e.g., Veney v. Warden, Maryland Penitentiary, 259 Md. 437, 271 A.2d 133 (1970); Midgett v. State, 223 Md. 282, 164 A.2d 526 (1960), cert. denied, 365 U.S. 853, 81 S. Ct. 819, 5 L. Ed. 2d 817 (1961); Williams v. State, 19 Md. App. 582, 313 A.2d 700, cert. denied, 271 Md. 747 (1974); Gordon v. State, 14 Md. App. 245, 286 A.2d 833 (1972); Graef v. State, 1 Md. App. 161, 228 A.2d 480, cert. denied, 246 Md. 755 (1967). Prejudice to an accused as a result of the separation is never inferred simply from the separation per se. The accused bears the burden, upon challenge, to demonstrate, if he or she can, that the separation of the jury contaminated its findings. Graef v. State, supra.

While, as we have seen, the cases are many in regard to separation of the jury before deliberations, there is a sparsity of cases concerning separation after deliberations have started but before verdict. Three Maryland cases have heretofore addressed the issue: Kennard v. State, 177 Md. 549, 10 A.2d 710 (1940); Stout v. State, 76 Md. 317, 25 A. 299 (1892); and Reemsnyder v. State, 46 Md. App. 249, 416 A.2d 767 (1980).

Kennard discusses a situation wherein the jury was given permission by the trial judge to separate after the onset of their deliberations but before verdict. The Court upheld the conviction of Kennard, notwithstanding the separation. Kennard, however, was limited to misdemeanor offenses. While the ancestor of current Courts Art. § 8-304, was originally enacted by Laws 1935, ch. 385, it was not discussed or even raised in Kennard. Hence, its effect on the ultimate decision in that case was nil. Stated more simplistically, Kennard was decided as if the statute were nonexistent.

In Stout a juror became ill during a recess. The juror was allowed to go to bed in the hotel where the jury was quartered. When the jury reassembled in the courtroom the sick juror was still abed. The court then adjourned until the next morning at which time all 12 jurors were present. Turning back an argument that the separation of the jury mandated its discharge, the Court said, at 329-30:

"In the trial of capital cases, even, there are many occasions when in reason, and a proper regard to the needs of humanity, it may become necessary to allow a temporary separation of the jury, without necessarily breaking up the trial, and that even after the jury have retired to consider of their verdict, otherwise protracted trials could seldom be brought to a final conclusion. Of course, the separation should only be allowed when attended with those precautions and safeguards necessary to secure entire freedom from approach or external influence of any kind.” (Citations omitted.)

Stout is inapposite to the instant case for at least two reasons: 1) it concerned the emergency situation to which we have alluded in note 1, supra; and 2) it was decided long before the enactment of Laws 1935, ch. 385.

Reemsnyder concerned a case in which a juror was stricken with "pain or breathing difficulties” after the case had been submitted to the jury for deliberation. The juror was taken to a hospital by a rescue squad and admitted to the "coronary care unit.” Because the juror was physically unable to continue in service, the panel was reduced to eleven jurors. A mistrial was declared. When the case was called anew, Reemsnyder raised the defense of double jeopardy. In disposing of that defense, adversely to Reemsnyder, we, speaking through Judge Thompson, said that illness of a juror under the circumstances of the case justified the declaring of a mistrial on the ground of manifest necessity, and the constitutional defense of double jeopardy did not apply.

The Court of Appeals of California, in People v. Chain, 22 Cal. App. 3d 493, 99 Cal. Rptr. 472 (1971), rehearing denied, January 25, 1972, hearing denied, February 23, 1972, held that the deletion from a former statute, very similar to Maryland’s present one, of the phrase "at any time before submission of the cause to the jury,” allowed the trial judge to let the jury separate, under proper admonition. In an earlier case, decided while the words, "at any time before submission,” etc., were viable, the Court in People v. Werwee, 112 Cal. App. 2d 494, 246 P.2d 704 (1952), hearing denied, August 28, 1952, held that it was reversible error in a criminal case to permit the jury to separate after the case was submitted to the talesmen and before verdict.

Both of the cited California cases bolster Magwood’s argument relative to the effect of Courts Art. § 8-304 — the later case, indirectly, and the earlier, directly.

The authorities are divided on the question of the judge’s discretion in permitting a jury in a criminal case to separate prior to verdict once the case is submitted to it. Those holding that it is within the discretion of the judge are fairly represented by People v. Chain, supra; People v. Austin, 185 Col. 229, 523 P.2d 989, 993 (1974), rehearing denied, July 15, 1974; Bryant v. State, 246 Ind. 17, 202 N.E.2d 161, 163 (1964); State v. Johnson, 216 N.W.2d 337, 339 (Iowa 1974); State v. Atwood, 83 N.M. 416, 492 P.2d 1279, 1284 (1971), cert. denied, 83 N.M. 395, 492 P.2d 1258 (1972); State v. Bynum, 282 N.C. 552, 193 S.E.2d 725, 729, cert. denied, 414 U.S. 836 and 414 U.S. 869 (1973); State v. Williams, 39 Ohio St. 2d 20, 68 Ohio Ops. 2d 12, 313 N.E.2d 859, 863 (1974).

Those holding a contrary view are: Raines v. State, 65 So. 2d 558, 559-60 (Fla. 1953), rehearing denied, June 2, 1953; People v. Ritzert, 17 Ill. App. 3d 791, 308 N.E.2d 636, 639 (1974); State v. Luquette, 275 So. 2d 396, 400 (La. 1973); Ford v. State, 330 P.2d 214, 215-16 (Okla. Crim. 1958).

Irrespective of how other States may view the question, the Maryland statute, Courts Art. § 8-304, expressly sanctions a separation of a jury, in the sound discretion of the trial judge, exercised at any time prior to the submission of the cause to the jury and implicitly forbids the separation of the jury before verdict or a judicial abortion of that verdict, at any time after the cause has been submitted for deliberation.

Notwithstanding what we have said, the parties have, with the acquiescence of the trial judge and under proper instructions, the right to waive the requirement that the jury remain together after the issue is submitted to them. That is precisely what the State argues Magwood did in the instant case.

We have no quarrel with the contention that Magwood’s trial counsel waived any right to object to the separation of the jury, but the record does not support the conclusion that Magwood concurred in that separation, or that he was even present when his counsel, in a backhanded sort of way, agreed to the jury’s being allowed to separate even though deliberations on the evidence had commenced. With respect to waiver by counsel, the record reflects:

"Counsel, would you come to the bench one moment, please.
(At the bench.)
THE COURT: Would there be any disagreement if I advise the jury that they should proceed with their deliberations themselves and that if they conclude that they need a rest for dinner, that it can be made available to them, and if they conclude the dinner and are unable to arrive at a verdict tonight, that they can be recessed until tomorrow, and they would not be sequestered?
MR. LOHM Tdefense counsel]: I have no objection.
MR. BINSTOCK [Ass’t State’s Attorney]: Well, I have no objection to the first part, but the second part, I don’t want to encourage them to think that they can at 7:00 o’clock say they are going to come back tomorrow when it is more appropriate for a time later on when we determine they are unable to reach a verdict.
THE COURT: My problem with that ... is that these people were in the panel sometime after 3:00 o’clock, and they have had no opportunity to communicate with their homes or anything like that, and if they get in there and decide they are unable to arrive at a verdict today, and you know it is going to be protracted and prolonged, that if there is any questions in their minds, I want them to know they can ask leave of the Court to rest tonight.
MR. LOHM: I agree with that.
MR. BINSTOCK: I have no objection under the circumstances. I wanted to point out to the Court that some Judges are leery about sending a controlled dangerous substance into a jury room with a jury.
MR. LOHM: They may try to see if the chemist was right.
THE COURT: I’m going to let them have it.
(In open court.)
THE COURT: Ladies and gentlemen, you may retire for your deliberations now. I’m going to give you some leave to consider among yourselves the course of your deliberations, taking into account the hour of the day and the time in which you were impaneled. You should consider whether or not you can arrive at a verdict in a reasonable time. If you believe you can’t, and you find or determine that it would be appropriate for you to indulge in some dinner, I would advise you that we can make arrangements upon request to the bailiff for you all to be served at a nearby restaurant.
You would have to be together and remain together at that restaurant, and from experience I have found that that constitutes about an hour-and-a-half interruption in deliberations. Now, you may want to take that into account. I would want you to know that if you believe that you are unable to arrive at a verdict tonight and wish to make a request of the Court, I will consider such a request for a recess overnight, and then you would have to return here tomorrow to finish your deliberations.
These are judgments for you to make with respect to how you think you’re proceeding with your deliberations. I suggest to you that you return now and see when you can arrive at a verdict.” (Emphasis supplied.)

A clear rational inference may be drawn from the trial judge’s opening remarks, "Counsel, would you come to the bench one moment, please,” that the judicial invitation was limited to the addressees, counsel. We infer that the appellant, Magwood, was not a participant in that discussion, and, thus, he did not personally waive his right to have the jury remain intact during its deliberative period.

Recently, the Court of Appeals, in Hughes v. State, 288 Md. 216, 421 A.2d 69 (1980), reversed this Court’s holding (see 43 Md. App. 698, 407 A.2d 330 (1979)) that a defendant’s presence was not required at a hearing before an administrative judge where a continuance to obtain private counsel was sought by the defendant. Certainly, if it is reversible error not to have the accused present in that situation, it is no less reversible error to allow a deliberating jury to separate unless the accused personally waives the sequestration. Both situations involve fundamental rights going to the essence of a fair trial.

Subsequent to the above-quoted bench conference, a second discussion occurred. The record does not disclose where it took place but does reveal the following:

"THE COURT: For the record, I have received two notes from the jury, which I have furnished to the Defendant and State’s attorney, and have written responses to those, which I have advised both counsel and showed them the responses, and with their concurrence will submit them to the jury. We will recover those when the jury renders its verdict. I just wanted that on the record, what has been going on.
The bailiff tells me that the jury has requested that it be permitted to go home overnight, and in view of the number of questions with respect to request for recess and an opportunity to eat, and further to call home and so forth, this hour now at 10 — almost five minutes of 10:00, it seems tome that that is appropriate.
It would be my intention to tell them to be back in this deliberating room at 9:30 in the morning to resume their deliberations at that time. I would admonish them not to discuss this case among themselves or with anyone else, or to do any explorations with respect to any of the matters before them, and to just disregard the case as best they can until tomorrow.
MR. LOHM: I request that they specifically be instructed not to take it upon themselves to go to any dictionaries or any other source for the information that they have been asking, or any other information for that matter.
THE COURT: I will do that.
All right, bring the jury in.
(Whereupon, jury enters the courtroom at 9:57 p.m.)
THE COURT: Ladies and gentlemen, the bailiff has indicated to me that it is the jury’s desire to recess for the night and go home and return tomorrow morning; is that correct?
THE JURY: Yes.
THE COURT: I’m going to permit you to do that, and I know that I indicated earlier that I would countenance that information and, of course, I would not sequester you overnight. I’m going to permit you to go to your individual homes, but I must give you some admonitions with respect to this, and I hope that you will keep them fully in mind, because not only have counsel and the witnesses and the parties and the Court now invested substantial efforts in these matters, but you, too. So I don’t want anything to happen that would cause the whole matter to be aborted and waste efforts that we have undertaken.
This matter must be decided solely on the basis of what was presented to you in this courtroom. So you must not discuss this case among yourselves or with anyone else overnight, and in particular, in view of the nature of some of your questions, I admonish you not to do any research yourself or examine any dictionaries looking for the definitions of terms or other matters of that kind.
These two matters, determining the law and the facts of this case, are to be decided solely among you on the basis of what was presented to you today. I’m sure that you all have respect for each other’s oaths, your own and your obligations to the Court, to the State and to the Defendant in this case, not to violate them.
I have earlier proceedings in the morning, and so I’m going to ask you to be here at 9:30, and be in this deliberation room and start at that time and resume your deliberations. You are now excused to go to your homes and return at that time.
As you go down the corridor here, there is a security officer and he is available to escort any of you, if you have the need for an escort, to your cars before you go home.
Good night and have a pleasant night as well.
A JUROR. Can we ask a question, if possible, or write it out and get the answer in the morning?
THE COURT: You want to write out the question.
A JUROR: Do they all —
THE COURT: Wait a minute. Ladies and gentlemen, if you have a question, sit down. You can give it to me.
A JUROR: Do both decisions have to be the same? We have two counts.
THE COURT: In my instructions to you, you have two counts, a verdict on each count. You must be convinced beyond a reasonable doubt that he committed each of the offenses or that he did not, or that they have not proven it.
A JUROR: Can we be hung on one and vote on the other?
THE COURT: If it comes to that. If it comes to that.
THE FORELADY: We will fight in the morning.
THE COURT: All right. Thank you.
(Whereupon, the above-entitled matter was adjourned; the jury to complete its deliberations on 9-19-79.)”

While it may be argued that the appellant was present during the latter discourse and thereby waived his right to object to the separation of the jury by failing to interpose an objection thereto, we turn aside such a contention. We do so because we are of the view that there can be no waiver, in the circumstances, unless it is shown that the defendant knew that he had the right to object to the separation of the jury. Although there are situations where one may waive by silence or inaction, see Noble v. State, 46 Md. App. 154, 416 A.2d 757 (1980), the happenings in the instant case are too fundamental to the rights of a defendant for us to infer waiver by silence.

We hold then that, absent an emergency, no jury in a criminal case may be separated, after the issue has been submitted to them, and before verdict, unless the record affirmatively shows that the accused has personally waived the right to require the jury to be sequestered during its deliberative process. We so hold because by allowing the jury to separate after it has started its deliberation greatly enhances the opportunity for outside interferences, influences, taint or tampering.

Inasmuch as the record does not reflect that the appellant, Magwood, waived objection to the jury’s separation, the separation during deliberation was fatal to the State’s prosecution.

In view of our holding on the first issue raised by Magwood, it is unnecessary to consider the second issue.

Judgment reversed.

Costs not to be reallocated under Md. Rule 1082 f.

      . We have deliberately said "ordinarily” because emergencies may arise that necessitate a juror to be separated, temporarily, without the possibility of taint.

      . According to 3 Blackstone (Lewis Ed. 1902) * 375, the Common Law provided a very practical way of assuring that no deadlock occurred. Blackstone states, "The jury, after the proofs are summed up,... withdraw from the bar to consider of their verdict; and, in order to avoid intemperance and causeless delay, are to be kept without meat, drink, fire, or candle, unless by permission of the judge, till they are all unanimously agreed. A method accelerating unanimity [that is I not wholly unknown in other constitutions of Europe....”

      . The Court did not hold that a continuance would be justified under those circumstances, but merely that the accused had a right to be present when the question of a continuance vel non was considered.

      . See Reemsnyder v. State, supra.

      . In the first appeal, Magwood v. State, No. 9, September Term, 1980, filed September 18, 1980, we vacated the judgment of the circuit court in another narcotics case involving Magwood for the reason that the court failed to comply with Md. Rule 735.


author: Moore, J.,

text:
    GRANITE-GROVES v. FRANCIS E. EDELEN
    [No. 62,
    September Term, 1980.]

      Decided October 15, 1980.

      The cause was argued before Moore, Lowe and Wilner, JJ.

      Geoffrey T, Keating for appellant.

      George E. Meng for appellee.
   Moore, J.,

delivered the opinion of the Court.

We here consider the validity of an oral agreement entered into between the appellant-employer, Granite-Groves, a joint venture contractor on a segment of the Metro construction project, and the appellee-employee, Francis E. Edelen, in light of the provisions of a collective bargaining agreement with the Union of which appellee was a member, appellant being a party to that agreement.

I

By virtue of its status as a construction contractor in the Washington, D. C. Metropolitan Area, appellant was a party to a collective bargaining "Working Agreement” of the Laborers’ District Council of Washington, D. C. and Vicinity effective May 1975 through April 1978. During the period relevant to this case, the agreement was in effect. It provided, inter alia, that the employer "recognizes and acknowledges that the Union is the exclusive representative of employees in the classification of work covered by this agreement for the purpose of collective bargaining.. ..” Its myriad provisions included those governing hiring procedures, work assignments and disputes, wage rates, on-the-job injuries, and many others.

The appellee was a laborer and a member of Laborers’ Local 456 of the Laborers’ District Council, subject to the provisions of the working agreement. He was also appointed shop steward by the union pursuant to the agreement and was a shop steward at the time the present controversy arose. On June 18, 1977, Edelen broke his leg in an off-the-job accident and was unable to work.

The testimony accepted by the lower court reveals that an informal meeting was held on June 22, 1977 at which Edelen, two union representatives, the employer’s assistant project manager, the midnight shift shop steward, and Howard Wills, a laborer, were in attendance. It was orally agreed that Wills would temporarily replace Edelen as shop steward until Edelen returned to work. Upon Edelen’s return on August 31, 1977, he was informed by the project manager that there was no work available for him. As a result, the union requested arbitration pursuant to the working agreement. The arbitrator, by a written decision dated December 29,1977, denied Edelen’s grievance, ruling that there was no remedy under the working agreement. The decision stated, in pertinent part:

"[W]hen Edelen became incapacitated in June because of an off-the-job injury, and was promptly replaced, his status as an employee under the Agreement terminated. So far as the Agreement is concerned, the Company was under no obligation to put him on leave or to continue his status in any way. Apparently Izac [Granite-Groves’ assistant project manager], on behalf of the Company, did accede to a Union-request that Edelen’s replacement as shop steward would be 'temporary’ until Edelen returned. It may well be that this constituted an agreement that Edelen could return to work. This separate agreement, however, was not part of the main Agreement, which the Arbitrator is empowered to construe and apply. Whether that separate understanding is a valid, binding agreement, as the Union urges, or whether it falls for want of consideration as the Company urges, it clearly is not an agreement enforceable at arbitration under the main Agreement.’’(Emphasis added.)

Edelen thereupon filed suit in the Circuit Court for Prince George’s County against Granite-Groves seeking damages for an alleged breach of the oral agreement of June 22,1977. The court (Blackwell, J.) entered summary judgment for Granite-Groves on November 1, 1978 holding that the oral agreement was not enforceable because it was not supported by consideration. Undeterred, Edelen appealed to this Court and we reversed the trial court in a per curiam opinion dated May 29, 1979. For purposes of the present appeal, it is significant that although this Court held that the trial court erred in finding, on the employer’s motion for summary judgment, that the oral agreement of June 22, 1977 was unsupported by consideration and remanded the case to the circuit court, we expressly declined to consider appellant’s contention that the individual agreement contradicted the working agreement and was therefore a nullity.

On remand, the court below found that the oral agreement of June 22 was supported by consideration and awarded a judgment for Edelen in the sum of $15,217.92. On this appeal, Granite-Groves presents three assignments of error, the first of which in our view is dispositive: "The provisions of the working agreement between the union and appellant are exclusive, rendering unenforceable a separate agreement between appellee and appellant which limits, defeats and contradicts its terms.”

Although this issue was argued below, the trial court failed to consider it. We find error and reverse.

II

The crux of the appellant’s case is that a collective bargaining agreement between an employer and a union is controlling when there is a conflict between its provisions and the terms of an employment contract. This, indeed, is a correct legal proposition. E.g., NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175 (1967); Order of Railroad Telegraphers v. Railway Express Agency, Inc., 321 U.S. 342 (1944); J. I. Case Co. v. NLRB, 321 U.S. 332 (1944). Before applying this principle to the instant appeal, it may be instructive to note the relationship of individual employment contracts to collective bargaining agreements as explained by the Supreme Court in J. I. Case Co., supra, a landmark case, wherein Mr. Justice Jackson stated:

"Contract in labor law is a term the implications of which must be determined from the connection in which it appears. Collective bargaining between employer and the representatives of a unit, usually a union, results in an accord as to terms which will govern hiring and work and pay in that unit. The result is not, however, a contract of employment except in rare cases; no one has a job by reason of it and no obligation to any individual ordinarily comes into existence from it alone. The negotiations between union and management result in what often has been called a trade agreement, rather than in a contract of employment.”
"After the collective trade agreement is made, the individuals who shall benefit by it are identified by individual hirings. The employer, except as restricted by the collective agreement itself and except that he must engage in no unfair labor practice or discrimination, is free to select those he will employ or discharge. But the terms of the employment already have been traded out. There is little left to individual agreement except the act of hiring. This hiring may be by writing or by word of mouth or may be implied from conduct. In the sense of contracts of hiring, individual contracts between the employer and employee are not forbidden, but indeed are necessitated by the collective bargaining procedure.
"But, however engaged, an employee becomes entitled by virtue of the Labor Relations Act somewhat as a third party beneficiary to all benefits of the collective trade agreement, even if on his own he would yield to less favorable terms. The individual hiring contract is subsidiary to the terms of the trade agreement and may not waive any of its benefits....” (Emphasis added.) Id. at 334-36.

The Court further observed, with respect to individual agreements:

"But it is urged that some employees may lose by the collective agreement, that an individual workman may sometimes have, or be capable of getting, better terms than those obtainable by the group and that his freedom of contract must be respected on that account. We are not called upon to say that under no circumstances can an individual enforce an agreement more advantageous than a collective agreement, but we find the mere possibility that such agreements might be made no ground for holding generally that individual contracts may survive or surmount collective ones. The practice and philosophy of collective bargaining looks with suspicion on such individual advantages.” (Emphasis added.)

J. I. Case Co. v. NLRB, supra, 321 U.S. at 338.

In the instant case, appellant and appellee agree that when a conflict arises between a collective agreement and an individual contract, the former must prevail. The lower court, as the trier of fact, found that an individual oral agreement providing for appellee’s return to work as shop steward had been made, and that it was supported by consideration. The finding of such an agreement is not here challenged. The issue, then, is whether the terms of the collective agreement and the oral agreement of June 22, 1977 are in conflict.

The appellant-employer cites a number of provisions of the working agreement which the oral agreement of June 22, 1977 is claimed to contradict. These include: Art. I, § 4 (employer makes all hirings through the appropriate union office); Art. IV, § 1 (the business representative of the local union shall appoint shop stewards, normally from men "on the job”); and Art. IV, § 1 (b) (no displacement of any employee on the job to provide employment for a suitable shop steward where it has been determined there is no employee on the job qualified to act as shop steward).

While there may be merit in appellant’s contention with respect to these provisions, we find of overriding significance and, indeed, of controlling effect the provisions of Art. Ill, § 3 of the working agreement relating to on-the-job injury, upon which appellant also relies. It is important to note that appellee’s injury was sustained off the job and was in no way connected with his employment — an eventuality not covered by the collective bargaining agreement. Art. Ill, § 3 provides as follows:

"The employers agree that if a laborer is hurt or injured on their job he may go to a doctor of his own choosing for treatment. A reasonable time to receive such treatment will be accorded the injured laborer during any work day on which he reports for work without any loss of earnings resulting from his absence for such treatment. Once the laborer has sufficiently recovered from his injury so as to enable him to return to work, he shall return to the employ of the contractor on whose job he was injured, if work is available, for a period of no less than ten (10) working days. He shall notify the employer when he will be available for work. If no laborers’ work is available with his employer, he shall be the first to be employed when the work is available.” (Emphasis added.)

It will thus be seen that Art. Ill, § 3 provides, in effect, that an employee injured on the job may not return to work at a later date unless work is available; here, it is undisputed that work was not available for the appellee. Appellee contends that since the matter deals with a person injured off the job, Art. Ill, § 3 is not applicable. We do not see it that way.

In our judgment, the effect of allowing Edelen to return to work after an injury, when no work was available, would afford appellee a right superior to the right given in the working agreement to those injured on the job. There is thus a clear conflict between the separate agreement and the working agreement. Stated another way, the individual agreement would rearrange job availability priorities by allowing those injured off the job to return to work even though no work was available — notwithstanding the fact that a laborer injured on the job could not. Appellant argues with considerable validity that:

"In effect, Appellee is asserting a greater right to return to work than that given to laborers injured on the job. Employees injured on the job, however, under the Working Agreement áre given much greater protection and right to return to work than those who suffer off-the-job injuries. This attempt to reorder the basic employment rights in a way contrary to that set forth in the Working Agreement cannot be sanctioned.”

Appellee places some emphasis upon the fact that he was a shop steward. He contends that Art. IV, § 1 (d) prevents the appellant from refusing to take Edelen back to work on August 31, 1977 because of his status as shop steward. That section provides:

"The shop steward shall be the last laborer to be discharged or laid off from the job. When there is no more laborers’ work to be performed on the job and all the laborers have been terminated, the contractor may lay off or discharge the shop steward without first discharging a salaried labor foreman.” (Emphasis added.)

We think that the above section cannot be read in isolation but must be read in conjunction with the other provisions of the working agreement. An injury is a separate occurrence for which a provision in the working agreement (Art. Ill, § 3) is specifically made. Article IV, § 1 (d) does not deal with the consequences facing an injured employee who attempts to return to work but rather with a discharge or lay-off in the more general sense. Hence, appellee’s reliance upon this provision is misplaced.

We conclude that the separate oral agreement would have afforded appellee a right to return to work which would have operated in direct conflict with the terms of the union agreement. In light of our determination, we find it unnecessary to consider appellant’s remaining contentions.

Judgment reversed.

Appellee to pay the costs.

      . The unavailability of work is not in dispute. Appellee offered no evidence to the contrary.

      . Edelen v. Granite-Groves, No. 1225 (Md. Ct. Spec. App. May 29, 1979).