author: Moore, J.,

text:
    DANIEL L. KARTELL v. EILEEN KARTELL
    [No. 88,
    September Term, 1975.]

      Decided September 10, 1975.

      The cause was argued before Orth, C. J., and Menchine and Mooses, JJ.

      Alan I. Baron, with whom were Peter F. Axelrod and Frank, Bernstein, Conaway & Goldman on the brief, for appellant.

      Joseph S. Kaufman, with whom were Arnold M. Weiner and Steven P. Resnick on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

The principal question presented on this appeal is whether the appellant-husband “procured” his own absence within the meaning of Maryland Rule 413 and thus rendered inadmissible his deposition — duly taken in Edmonton, Alberta, Canada — at an evidentiary hearing before the Circuit Court for Baltimore County (Raine, J.) to determine the question of lack of personal jurisdiction, raised as a preliminary objection under Maryland Rule 323. The Chancellor excluded the deposition. He also held that a written communication to appellant’s wife and one to his professional associate were inadmissible. We find reversible error in these rulings.

I

Factual and Procedural Background.

Appellant, Daniel L. Kartell, D.D.S., and his wife, Eileen, were married in Baltimore on December 21, 1952 and had two daughters, 18 and 15 years of age. On June 1, 1974, without any prior notice to or communication with his wife, Dr. Bartell left her and the children. A letter from him to Mrs. Bartell was hand-delivered to her by a stranger after his departure.

On July 25, 1974, Mrs. Bartell filed a bill of complaint for alimony, support and custody, based upon alleged adultery, abandonment and desertion. Simultaneously, she sought and obtained an Ex Parte Injunction and an Order for the appointment of a special process server on the ground that the husband was “temporarily residing in Alberta, Canada.” Dr. Bartell was subsequently served on August 8,1974 in the Town of Slave Lake, Province of Alberta, Canada and thereafter challenged, by Motion Raising Preliminary Objection, the court’s jurisdiction over his person. A supporting affidavit recited inter alia his residence in the Town of Slave Lake prior to the institution of his wife’s action, that he intended to remain permanently in Alberta and not to return to Maryland, and that he was a licensed dentist in Canada and had established dental practice in the Town of Slave Lake.

After an apparent conference in Chambers with counsel for the respective parties, Judge Raine filed a Memorandum and Order on September 30, 1974 in which he ruled that it was inappropriate, in the face of objection, to decide the jurisdictional issue on the basis of affidavits. A suggestion by Dr. Bartell’s counsel that he be deposed in Canada was rejected. Judge Raine’s Memorandum stated:

“The deposition rules do cover the deposition of parties as well as mere witnesses, but the use of any deposition is not permitted where the witness or party is out of state and where the absence is procured by the party offering the deposition. Maryland Rule 413. Consequently there will have to be an evidentiary hearing on the question of the Respondent’s domicile at which time the Respondent will have to appear in person to testify if he wishes to introduce his own testimony on the issue of his domicile. When he does so appear he is not subject to being served with process, Maryland Rule 104g....” (Emphasis added.)

An evidentiary hearing on the “sole question of Dr. Bartell’s domiciliary status” was thereafter scheduled for December 2, 1974. In mid-November, however, counsel for Dr. Bartell filed (1) a notice for the taking of his deposition in Edmonton, Canada on November 19, 1974 and (2) a motion for the appointment of a Commissioner to take testimony. Paragraph 5 of the latter motion stated:

“It is both necessary and convenient for such commission to be issued by this Court in that this Court does not have personal jurisdiction over Daniel L. Bartell sufficient to require his attendance in Maryland and Daniel L. Bartell cannot and mil not be present at the scheduled hearing.” (Emphasis added.)

Counsel for Mrs. Bartell responded with alacrity, filing a Motion for Protective Order under Md. Rule 406 a (10) on the day the deposition notice was received. “Hardship, oppression or undue expense” was claimed because of the cost of transportation and lack of funds to employ counsel. The Chancellor (a) signed an Order that the clerk issue the Commission to take testimony as prayed and (b) denied the wife’s motion for a Protective Order, with the following hand-written disposition, dated November 13,1974:

“Motion Denied, Court repeats its ruling that deposition of Dr. Bartell mil not be admitted. In the event of a change in parties’ circumstances affecting this ruling, the present motion may be resubmitted & reconsidered.” (Emphasis added.)

Dr. Bartell’s deposition was thereafter taken by his local counsel in Edmonton, Mrs. Bartell not being present nor represented by counsel. At the hearing on December 2, 1974 on the husband’s preliminary objection, his Maryland counsel presented a written motion to “Rescind Prior Order And To Admit In Evidence The Deposition of Daniel L. Bartell....” The motion was denied and the testimony of Mrs. Bartell and five other witnesses was taken, with counsel for Dr. Bartell participating. The matter was held sub curia and on December 5, 1974, Judge Raine denied the husband’s motion in a memorandum opinion. With respect to the exclusion of the deposition, the Chancellor wrote:

“The Maryland Rules govern the use of depositions of parties as well as other witnesses. A party can use the deposition of an adverse party for any reason, but the Rules do not permit a party who has procured his own absence from the state to remain without the state and litigate his cause by means of a foreign deposition. In this case it is clear that on or shortly after June 1, 197b the Respondent left the State of Maryland of his own volition, and there is no known reason why he could wot return to Maryland to testify.” (Emphasis added.)

The evidence adduced on behalf of the wife at the hearing was then summarized and the court’s memorandum concluded:

“Where facts of this nature are shown the burden shifts to the person who affirmatively asserts that there has been a change in his domiciliary status. With no testimony from the Respondent in this case the burden has not been met. If this conclusion is factually incorrect the reluctant Respondent has only himself to blame.” (Emphasis added.)

Appellant did not thereafter file an Answer to the Bill of Complaint and a Decree Pro Confesso was entered on December 31, 1974. The Examiner-Master, after the taking of testimony ex parte, concluded that abandonment had been established and recommended an award of alimony of $250 per week and the sum of $100 per week for maintenance and support of the minor daughter, Wendy. On February 20, 1975, Judge Raine signed a Decree awarding alimony and support in the amounts recommended, granting custody of the minor child to the wife and ordering that the property and assets of Dr. Bartell, located within the State of Maryland, would be liable for the payment of alimony and support and enjoining their removal or other disposition.

On this appeal, we are importuned by both sides to resolve the ultimate issue, viz., whether or not the trial court properly exercised personal jurisdiction over Dr. Bartell. Such jurisdiction did not attach unless appellant was a Maryland domiciliary at the time the suit was filed and at the date of service in Canada. See Code, Cts. & Jud. Proc. Art. Sec. 6-102 (1974); Dackman v. Dackman, 252 Md. 331, 250 A. 2d 60 (1969). For the reasons next stated, we do not decide that question.

II

Proof of Domicile and of Change of Domicile.

In his carefully constructed Memorandum, the Chancellor summarized as follows the evidence adduced at the evidentiary hearing on the question of Dr. BartelFs domicile:

“The Complainant has established that the Respondent has an ownership interest in real estate and personal property in Maryland. The Respondent resided in the Maryland home in Baltimore County until June 1, 1974, and he gave that as his address and place of residence when he last filed required tax returns. The Respondent is a registered voter in Baltimore County, having last voted in the General Election in November, 1972. The Respondent has been registered with the State Board of Dental Examiners since 1955, and renewed the registration in 1973 for the year 1974. The Respondent still holds a valid Maryland license to operate a motor vehicle. On June 1, 1974 the Respondent was the plaintiff in a tort suit that has subsequently been settled. The Respondent is obligated to the Equitable Trust Company, a Maryland bank, under a lease agreement for dental equipment, although presumably this equipment has been transferred to the purchaser of the Respondent’s practice. Personal property such as some clothing, some records and a coin collection remain in the home where the Respondent resided.”

These facts were characterized by the Chancellor as “traditional indicia of domicile” which, he concluded, supported the wife’s claim that he was still legally domiciled in Maryland and shifted to the husband the burden of establishing a change in his domiciliary status.

Without necessarily entering the thicket of burden of proof and presumptions, we think it correct to say that, in Maryland, where the issue of personal jurisdiction is contested, the party asserting such jurisdiction bears the burden of proving its elements by a preponderance of the evidence. Vitro Electronics v. Milgray Electronics, Inc., 255 Md. 498, 507, 258 A. 2d 749 (1969). It is also well settled in Maryland that a person’s domicile remains the same until he acquires a new residence with an intention to remain there indefinitely and that the burden of proof rests on the party who claims that a change of domicile has taken place. Comptroller v. Lenderking, 268 Md. 613, 618, 303 A. 2d 402 (1973), citing with approval 1 Restatement (Second) of Conflict of Laws, § 19, at 78 (1971); Staley v. Staley, 251 Md. 701, 705, 248 A. 2d 655 (1968).

In the instant case, therefore, Dr. Bartell must prove that his domicile changed from Maryland to Canada before the filing of suit on July 25, 1974. Domicile is defined in Maryland as the “place where a man has his true, fixed, permanent home, habitation and principal establishment, without any present intention of removing therefrom. . . .” Shenton v. Abbott, 178 Md. 526, 15 A. 2d 906 (1940). The most important component of this definition is “intent.” Bainum v. Kalen, 272 Md. 490, 497, 325 A. 2d 392 (1974). While intent regarding domicile “may be more satisfactorily shown by what is done than by what is said,” Wagner v. Scurlock, 166 Md. 284, 292, 170 A. 539 (1934), in this instance appellant has been so severely restricted by the court’s evidentiary rulings — particularly with respect to the use of a deposition — that his proof of intent is almost totally absent. We turn now to the question whether as Judge Raine stated, Dr. Bartell “has only himself to blame.”

Ill

Admissibility of Husband’s Deposition.

Maryland Rule 413 a 3 (2) prescribes the conditions for the use of a deposition made by an unavailable party or witness:

“The deposition of a witness, whether or not a party, may be used by any party for any purpose against any other party who was present or represented at the taking of the deposition or who had due notice thereof, if the court finds:
(2) That the witness is out of the State, unless it appears that the absence of the witness was procured by the party offering the deposition.” (Emphasis added.)

The issue presented here is, therefore, whether the Chancellor properly refused to accept appellant’s deposition on the grounds that he had “procured” his own absence. As already indicated, we conclude that this was error.

This language of the Rule has not heretofore been construed in Maryland; and there is a paucity of other state cases involving interpretations of similar provisions. See Kono v. Auer, 458 P. 2d 661 (Haw., 1969); King v. International Harvester Co., 181 S.E.2d 656 (Va. 1971). Decisions of federal courts are somewhat more numerous and offer helpful guidelines because of the similarity between Maryland and federal discovery rules. Snowhite v. State, Use of Tennant, 243 Md. 291, 308-309, 221 A. 2d 342 (1966). The federal deposition rule provides, in pertinent part, that:

“[t]he deposition of a witness, whether or not a party, may be used by any party for any purpose if the Court finds . . . that the witness is at a greater distance than 100 miles from the place of trial or hearing . . . unless it appears that the absence of the witness was procured by the party offering the deposition.” Fed.R.Civ.Pro. 32 (a) (3) (B). (Emphasis added.)

In a leading federal case, the term “procured” was defined by Judge Chesnut, writing for the United States District Court for the District of Maryland, Weiss v. Weiner, 10 F.R.D. 387 (1950). There the defendant in a breach of contract action had been a resident of Maryland for 2 years before the suit was filed but had been residing in Florida for many months prior to trial, and did not appear for trial. The plaintiff moved for a new trial alleging error in the admission into evidence, at the instance of defendant’s counsel, of the defendant’s deposition which had been taken in Baltimore long before the trial took place. Rule 26 d 3, the predecessor of the current rule quoted above, then governed, the language being identical. Rejecting plaintiff’s contention that the defendant had “procured” his own absence, Judge Chesnut stated at p. 389:

“The word ‘procured’in this context would seem to imply that a party had collusively instigated or induced a witness to remove himself from being subjected to a subpoena to testify at the trial, or at least had unfairly and for an improper purpose deliberately absented himself shortly before the trial from the jurisdiction so he could not be examined.’’(Italics supplied.)

Again, in 1962, the United States District Court for the District of Maryland had occasion to construe the same rule in a trade secrets case wherein objection was made to the depositions of corporate officers who were residing at a distance substantially greater than 100 miles from Baltimore at the time of trial. Judge Northrop, now Chief Judge, turned aside the contention that the absence of the witnesses had been “procured.” Houser v. Snap-On Tools Corp., 202 F. Supp. 181 (1962). Citing Weiss v. Weiner, supra, Judge Northrop observed (p. 189):

“However, procuring absence and doing nothing to facilitate presence are quite different things, and here we have no showing or allegation that Snap-On actively took steps to keep the deponents from setting foot in the courtroom.”

Limiting the application of Weiss v. Weiner only to a defendant’s proof was held to be erroneous in Richmond v. Brooks, 227 F. 2d 490 (2nd Cir. 1955) where a California resident sued her former husband in New York to collect unpaid loans. At the trial, the plaintiff offered her deposition as her proof. The trial court refused to receive it, holding that the defendant was entitled to require the presence of the plaintiff as part of her case and the opportunity to cross-examine her before the jury. The action was thereafter dismissed for failure of proof. The Court of Appeals reversed, in an opinion by Chief Judge Charles E. Clark, the distinguished draftsman of the Federal Rules of Civil Procedure. He stated generally (p. 492):

“The tactical burden assumed by the plaintiff in proceeding to trial in her absence ... is likely to limit frequent resort to this course; but a suitor not able to afford a New York trip should not be denied all remedy here. There is nothing in the general law to demand such a result; indeed the contrary has been the rule both in earlier federal law [citations omitted], and in the modern procedure of New York, where this action was first brought.”

With respect to the “unless .. . procured” language of F.R. 26 d 3, Chief Judge Clark noted that the defendant objected under that section and advised the trial court that the plaintiff was in New York City with her husband during the Christmas holidays, prior to the start of the trial on January 17, 1955. The trial court made no ruling on the objection and the Court of Appeals stated obiter (p. 493):

“But no reason is apparent to justify a requirement that plaintiff must live in New York City — of course expensively, since that is the only mode of life there — awaiting the uncertain call of a case for trial or be penalized for a normal Christmas trip.”

Placing principal reliance upon the foregoing authorities, the Supreme Court of the State of Hawaii held in a personal injury action that it was reversible error to exclude the deposition of the defendant who had moved to Canada between the time of the accident and the time of trial. Kono v. Auer, 51 Haw. 273, 458 P. 2d 661 (1969), supra. In Kono the discovery rule subject to construction contained the same “unless . . . procured” language as is contained in Maryland Rule 413 a 3 (2).

Standing in somewhat solitary splendor among the few adjudicated cases on this issue is the decision of the Supreme Court of the Commonwealth of Virginia in King v. International Harvester Company, 181 S.E.2d 656 (1971), supra, upon which Mrs. Bartell places principal reliance. The language of the Virginia deposition rule, in pertinent part, is identical to the Maryland rule. The Court there held that the trial court had not erred in refusing to admit into evidence the deposition of the plaintiff, a resident of Florida, who had sustained accidental personal injuries in Virginia. As in Richmond v. Brooks, supra, the plaintiff in King failed to appear at the trial in Virginia for reasons unknown to his counsel. After a discussion of the principal cases in this area, the Court determined that:

“When the absence of a witness is due merely to a preference to use his deposition rather than to testify orally at the trial, the rule does not permit of its use. Absence under such conditions is in effect ‘procured’ by the party offering the deposition.” (181 S.E.2d at 660).

On principle, we do not accept this construction of the rule and, upon authority, we find it unsupportable. Furthermore, we think the Court in King went far beyond the language of the rule when it also held that a party should not be allowed to use his own deposition except in the following circumstances:

“There is no intimation in the record that plaintiff’s absence was caused by illness, age, infirmity or for any reason other than his own volition. His absence was the result of an act of ‘will’ on his part. We construe a voluntary and unexplained absence as a ‘procured’ absence.” (181 S.E.2d at 661) (Emphasis added.)

Turning to the operative facts in the instant case, no action was pending nor, so far as can be ascertained because of the exclusion by the Chancellor of appellant’s farewell letters, was any legal action in contemplation when Dr. Bartell left his family on June 1, 1974. The wife’s action was instituted some two months later and her motion for sequestration and special service of process conceded that he was at least “temporarily” residing in Alberta, Canada. The date of the evidentiary hearing was set by the court by letter in October for December 2,1974, some four months after the filing of suit. The appellant’s absence was not from a trial on the merits, but from a hearing on his own motion raising a preliminary objection concerning the court’s exercise of personal jurisdiction. To paraphrase the language of Chief Judge Clark in Richmond v. Brooks, supra, “if [Dr. Bartell] chose so to proceed, he was taking a risk and [the plaintiff] had the advantage of no opportunity for the [defendant] to rebut [her] oral testimony,” (227 F. 2d at 492); and in the words of Judge Chesnut in Weiss v. Weiner, supra, “Presumably it was a disadvantage to the defendant himself not to have his own evidence heard by the [court].” 10 F.R.D. at 388.

These, however, were options appellant had a right to elect and risks he had a right to assume. We find no basis for the application of the word “procured” in the circumstances here present. We cannot equate the act of desertion by a husband of his wife and children with the procurement, by so doing, of his own absence within the meaning of Rule 413.

IV

Exclusion of Appellant’s Writings.

In the Memorandum which accompanied the denial of Dr. Bartell’s Motion Raising Preliminary Objection, the Chancellor made the following ruling with respect to hand-written notes addressed by appellant to his wife and to his professional associate, Dr. Sanford Biars, prior to his departure:

“When the Respondent left Maryland he left certain notes which were proffered by his attorney to show his intention to remain outside the state permanently. These notes were not shown to be within any res gestae exceptions, and were excluded as being of a clearly self-serving nature.” (Emphasis added.)

We need not further fuel the controversy concerning the use of the phrase “res gestae.” The proper exception to the hearsay rule here applicable is “statements of design or plan” or “declaration of intent,” this being the import of the excluded papers.

The self-serving nature of an out-of-court statement does not, of course, render it inadmissible. McCormick, Evidence § 290 (2d ed. 1972). Nor is spontaneity a necessary element of a declaration of intent or design as it is, of course, in the case of an excited utterance. Dean Wigmore states, 6 Wigmore, Evidence § 1725, pp. 79-80 (3d ed. 1940):

“The only limitations as to the use of such statements (assuming the fact of the design to be relevant) are . . . the statements must be of a present existing state of mind, and must appear to have been made in a natural manner and not under circumstances of suspicion.” (Emphasis in original.)

The above language was quoted and applied by the Court of Appeals in Maryland Paper Products Co. v. Judson, 215 Md. 577, 591, 139 A. 2d 219 (1958) in an opinion by Chief Judge Bruñe who referred also to McCormick’s treatise:

“McCormick on Evidence, Sec. 270, page 572, makes a similar statement: ‘* * * [T]he modern cases and texts leave no room to doubt the statement that the accepted principle today is that evidence of declarations of a plan, design or intention presently entertained by the declarant is, subject to the usual limitations as to remoteness in time and apparent sincerity common to all declarations of mental state, admissible when offered as evidence that the design was carried out by acts or omissions of the declarant.” (Emphasis added.)

The Court thereafter stated, at 591: “We approve the rule stated by Wigmore and McCormick.” (Italics supplied.)

In discussing statements of intent in domicile cases Professor Wigmore observes that the criterion for admissibility is that “the declaration must appear to have been made under circumstances of naturalness without apparent motive to deceive....” 6 Wigmore, Evidence § 1727 (3d ed. 1940).

Appellee argues that Cluster v. Cole, 21 Md. App. 242, 319 A. 2d 320 (1970), supra, n. 10, precludes the admission into evidence of these writings. That case is inapposite because it was concerned with the excited utterances of an unavailable witness to an automobile accident rather than with a statement concerning the intent of the declarant.

We hold that the communications to Mrs. Bartell and to Dr. Biars should have been received.

V

Disposition.

We find reversible error in the exclusion by the Chancellor of appellant’s deposition and the proffered communications. The decree must be vacated and a further evidentiary hearing held on appellant’s motion raising the jurisdictional question. With respect to such further proceedings, we observe that because the Chancellor had ruled on September 30, 1974 that appellant’s deposition could not be used at the evidentiary hearing on December 2, 1974, appellee reasonably elected not to be represented at the taking of the deposition on November 19, 1974; and the court also denied appellee’s motion for a protective order. We therefore rule that the deposition taken in Canada on November 19,1974, if offered by appellant, may not be used at the further evidentiary hearing except upon the consent of appellee. Appellant may, at all events, be deposed again.

Decree reversed; cause remanded for further proceedings not inconsistent with this opinion; costs to be paid by appellant.

      . As noted, infra, this letter as well as a communication from Dr. Bartell to his associate in dentistry, Dr. Biars, was ruled inadmissible.

      . See Dackman v. Dackman, 252 Md. 331, 250 A. 2d 60 (1969). By this action of the court, Dr. Bartell’s attorney, his associate Dr. Biars, The Equitable Trust Company and Howard Rodman, executory vendor of certain real property in Baltimore County, were made parties defendant and were enjoined from removing or otherwise attempting to dispose of any of Dr. Bartell’s property from the State of Maryland.

      . With respect to the allegation of adultery, the Master’s Report stated: “There is strong indication that the young [age 26] secretary or technician of this dentist went with him and is now residing in the same community but the testimony is somewhat short of proving adultery.”

      . The court relied upon Code, Art. 16, Sec. 4 concerning the liability of the property for the payment of the awards of alimony and support. That section applies to “any decree for divorce.” Where, as here, no divorce was granted, reliance should be placed on the “inherent right and power of a court of equity.” Dackman v. Dackman, supra, n. 2, 252 Md. p. 346.

      . See, McCormick, Evidence, §§ 336, 337 and 342 (2d ed. 1972).

      . For a thoroughgoing discussion of the federal rule, see 8 Wright & Miller, Federal Practice & Procedure, § 2147 (1970) and 4A Moore’s Federal Practice ¶ 32.05. Both treatises cite Weiss v. Weiner with approval.

      . Chief Judge Clark placed significant reliance on the admiralty case of Hyam v. American Export Lines, 213 F. 2d 221 (2nd Cir. 1954), where Judge [later Mr. Justice] Harlan stated, at 223: “The rederal courts are open to foreign suitors as to others, and procedural rules are not to be construed in such fashion as to impose conditions on litigants which in their practical effect amount to a denial of jurisdiction.”

      . In addition to the cases previously discussed in this opinion, the King Court reviewed Vevelstad v. Flynn, 230 F. 2d 695 (9th Cir. 1956) cited in appellee’s brief, which held that the deposition of a party who wilfully absented himself from the United States at the time of a trial was properly excluded; and, Stewart v. Meyers, 353 F. 2d 691 (1965) leaving it to the trial court’s discretion to admit a defendant’s deposition whose absence had not been prohibitively procured.

      . In excluding these communications at the evidentiary hearing, the court also stated “they are not of that spontaneous a nature.”

      . See, Cluster v. Cole, 21 Md. App. 242, n. 1, at 246, 319 A. 2d 320 (1974).


source: Caselaw Access Project

author:
Morton, J.,
      Lowe, J.,

license: Public Domain

text:
    VERNELL PEARSON v. STATE OF MARYLAND
    [No. 7,
    September Term, 1975.]

      Decided September 16, 1975.

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

      Raymond M. Faby, Assigned Public Defender, for appellant.

      Gilbert Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, James t. Keane, Assistant Attorney General, William. A. "Swisher, State’s Attorney for Baltimore City, and Leslie Stein, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court. Lowe, J., dissents and filed a dissenting opinion at page 203 infra.

Appellant was convicted by a jury sitting in the Criminal Court of Baltimore (Thomas, J., presiding) of murder in the second degree and the unlawful use of a handgun in the commission of a crime of violence. Sentences totaling 45 years were imposed. In this appeal it is first contended that the evidence was legally insufficient to sustain the convictions.

The record indicates that just before midnight on May 18, 1974, a police officer, in response to a call, discovered the blood splattered body of Ernest Leo Swigert, an elderly white man, lying on the floor in a house located at 817 S. Charles Street, Baltimore. In the next room he found the body of Lillian Foster, a female Negro, lying in a pool of blood. He observed that the lock on the entrance door had been broken. The autopsy report showed that the body of Swigert had sustained eight gunshot wounds and the body of Mrs. Foster had sustained a gunshot wound to the head from a weapon fired at close range.

The appellant was arrested at 4:30 a.m. on May 20, 1974. At the time of his arrest he was found sleeping in a vacant house on an old mattress. Two handguns were removed from his pockets in addition to a substantial quantity of live ammunition. A ballistic report indicated that one of the bullets found in the body of Swigert had been fired from one of the guns found on appellant. A fingerprint test indicated that appellant’s palm print was found on the screen door of the house where the bodies were found. A stipulation read into the record revealed that one of the guns found on appellant at the time of his arrest had been purchased by Lillian Foster on January 11,1974.

The appellant did not testify.

The jury found appellant guilty of murdering Swigert but not guilty of murdering Mrs. Foster.

We cannot agree, as appellant contends, that the evidence was legally insufficient to sustain his convictions. The gun found on the appellant at the time of his arrest was proven to be the death weapon and this evidence, coupled with the evidence of his palm print having been found on the screen door of the house where the bodies were discovered, constituted ample evidence from which the jury could conclude beyond a reasonable doubt that appellant was guilty of murdering Swigert. Williams and McClelland v. State, 5 Md. App. 450; Lawless v. State, 3 Md. App. 652. That the murder was committed by the use of a handgun was clearly demonstrated.

The appellant next contends that the trial judge committed reversible error in giving the following instruction to the jury over the appellant’s objection:

“It is the privilege of an accused not to testify in a criminal case and you should not entertain any presumption or inference against the defendant because of his absence from the stand. It is not to be considered against him, as he has the option but not the obligation to testify in a criminal case.”

At the conclusion of the instructions to the jury, defense counsel advised the trial judge:

“We would also object to the Court having advised the jury that they are not to draw any inference of the defendant’s guilt from his failure to testify. The defendant specifically requested this instruction not to be given because in the opinion of his counsel it is prejudicial; that part which discusses his privilege not to testify would indicate to the jury that he might have testified had he chosen to do so. I did request the Court not give that charge because I felt it reemphasized his silence.”

No argument and no citation of authorities in support of the contention are offered in the brief filed on behalf of appellant in this Court. On the other hand, the State in its brief discusses the pros and cons of the issue and has referred us to a number of authorities in support of the respective positions. The State’s brief has been most helpful to the Court.

Many of the authorities are found in an Annotation in 18 A.L.R.3d 1335. It is there pointed out that in Griffin v. California, 380 U. S. 609, “it was held that the Fifth Amendment, in its direct application to the Federal Government and in its bearing on the states by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instruction by the court that such silence is evidence of guilt.” The Annotation observes that there has been conflict of authority as to whether it is proper under Griffin for a trial judge, over a defendant’s objection, or in the absence of a request by the defendant, to instruct the jury that no inference should be drawn against the accused because of his failure to testify.

In Russell v. State, 398 S.W.2d 213, 215 (Ark. 1966), an instruction to the jury, over defendant’s objection, was held to constitute reversible error, the Court stating: “If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury’s attention.”

Again, in State v. Cousins, 4 Ariz. App. 318, 420 P. 2d 185 (1966), it was held, without discussion, that it was error to give such an instruction in the absence of a request for such an instruction. See also Gross v. State, 306 N.E.2d 371 (Ind. 1974); Villines v. State, 492 P. 2d 343 (Okla. Cr. App. 1971); State v. Zaragosa, 6 Ariz. App. 80, 430 P. 2d 426 (1967).

On the other hand, the federal courts have held it proper for the trial court to give the instruction sua sponte. In United States v. Garguilo, 310 F. 2d 249, 252 (2nd Cir. 1962), Judge Friendly persuasively reasoned:

“There may be enough in this so that, as Judge Learned Hand said for this Court many years ago, ‘It is no doubt better if a defendant requests no charge upon the subject, for the trial judge to say nothing about it ***.’** * gut we agree also with the rest of Judge Hand’s statement: ‘but to say that when he does, it is error, carries the doctrine of self-incrimination to an absurdity.’ * * * It is far from clear that such an instruction is prejudicial to a defendant; the chances are rather that it is helpful. The jurors have observed the defendant’s failure to take the stand; in the absence of instruction, nothing could be more natural than for them to draw an adverse inference from the lack of testimony by the very person who should know the facts best. And ‘despite the vast accumulation of psychological data, we have not yet attained that certitude about the human mind which would justify * * * a dogmatic assumption that jurors, if properly admonished, neither could nor would heed the instructions of the trial court that the failure of an accused to be a witness in his own cause “shall not create any presumption against him.” ’ ” [Citations omitted.]

See also Hanks v. United States, 388 F. 2d 171 (10th Cir. 1968); Bellard v. United States, 356 F. 2d 437 (5th Cir. 1966); United States v. Woodmansee, 354 F. 2d 235 (2nd Cir. 1965).

In State v. Goldstein, 400 P. 2d 368, 369 (Wash. 1965), where the jury was instructed at the request of the prosecution,, and over the accused’s objection, that no inference.of guilt or innocence was to be drawn from the accused’s failure to take the stand, it was held: “Although the court is not required to give such an instruction unless requested * * * we do- not believe it prejudicial error should the instruction be given either on request of the state.or on the court’s own motion.” [Citation omitted.) See also State v. Garcia, 505 P. 2d 862 (N. M. 1972); State v. Kennedy, 203 N.W.2d 106 (Neb. 1972); State v. Wallace, 152 N.W.2d 266 (Iowa 1967).

An elaborate discussion of the problem is contained in the opinion of the California Court of Appeal in People v. Brady, 80 Cal. Rptr. 418, where, after pointing out that the Fifth and Fourteenth Amendments of the United States Constitution forbid either comment by the prosecution on an accused’s failure to testify or instructions by the court that the failure to take the stand is evidence of guilt, the court stated, at 422-423:

“The purpose of the Griffin rule is to prevent the accused’s exercise of his constitutional privilege against self-incrimination from being judicially emphasized as affirmative evidence against him. [Citation omitted.]
The instruction involved herein does not state that the defendant’s silence may be construed as an indication of guilt. It is patently obvious to the jury when the accused fails to take the stand, and the instruction admonishes the jurors that the defendant is exercising his constitutional right in not testifying, and that his failure to testify is not to be considered in determining his innocence or guilt.
The instruction in its present form (CALJIC 51) * * * is not violative of Griffin and constitutes an accurate affirmation of the accused’s constitutional right against self-incrimination.
We hold that it is not necessary for the trial court to give the instruction sua sponte but, if given by the court of its own volition, or at the request of the prosecution or the defendant, with or without objection, the instruction is proper.”

We are inclined to agree that it is the better practice for a trial judge to honor the request of an accused to refrain from advising the jury that no inference of guilt should be drawn from his failure to take the stand. It may well be that defense counsel, as a matter of trial tactics, would on occasion prefer that such instruction not be given on the theory that regardless of the fact that the instruction might be couched in terms favorable to the accused, it would serve to highlight, emphasize or single out the accused’s failure to testify.

On the other hand, we are not prepared to hold, in the absence of showing actual prejudice, that the giving of such an instruction, in correct terms, is violative of the accused’s Fifth and Fourteenth Amendment rights, compelling a reversal of the accused’s otherwise proper conviction. The rule in Griffin v. California, supra, directs only that the trial judge refrain from instructing the jury that an accused’s failure to take the stand may be the basis for an inference of the accused’s guilt.

The accused is, of course, entitled to such an instruction if it is requested by him. We are not persuaded, however, that the giving of such an instruction by the trial judge sua sponte, or at the request of the prosecutor, even over the objection of the accused, constitutes reversible error in the absence of a showing that the accused suffered actual prejudice as the result of such instruction. Whether to give the instruction lies in the sound discretion of the trial judge and, unless an accused can show a clear abuse of that discretion, the action of the trial judge in giving such an instruction will not be disturbed if it is phrased in terms proper and fair to the accused.

In the case at bar, the appellant makes no contention that the instruction itself was improperly phrased and since there has been no showing that the appellant suffered actual prejudice as the result of the instruction, we cannot find that there was an abuse of the trial judge’s discretion in giving the instruction, notwithstanding appellant’s objection thereto.

Finally, we find no merit in the contention that the comments of the trial judge at sentencing were “so prejudicial as to negate the possibility of appellant receiving a fair sentence * * The comment specifically complained of is as follows: “The defendant’s conduct in this case makes it clear that he is a dangerous person to society, and his aggressive behavior, his violent criminal action resulted in the death of two people.”

We cannot agree that this comment demonstrates on the part of the sentencing judge ill will, passion, prejudice or unworthy motive as contended by appellant. See Bryson v. State, 7 Md. App. 353.

Judgments affirmed.

Lowe, J.,

dissenting:

To argue that an instruction of a constitutional right may deny the accused the very protection the Constitution seeks to afford is, at first blush, seemingly incongruous if not absurd. I am convinced, however, that by emphasizing a defendant’s right not to testify, over prior objection, his failure to have done so becomes so spotlighted that “... the light will penetrate the curtain sought to be drawn over it.” United States v. Garguilo, 310 F. 2d 249, 252.

The majority has relied heavily upon Judge Friendly’s “persuasively reasoned” opinion in Garguilo which they quote at length. That opinion rests upon the conclusion that because:

“The jurors have [already] observed the defendant’s failure to take the stand; in the absence of instruction, nothing could be more natural than for them to draw an adverse inference from the lack of testimony by the very person who should know the facts best.”

However, in Griffin v. California, 380 U. S. 609, 614-615 the Supreme Court expressly rejected that very reasoning. The Court felt that in such instances

“. .. the inference of guilt is not always so natural or irresistible. . . .”

The Court went on to recognize that:

“What the jury may infer, given no help from the court, is one thing. What it may infer when the Court solemnizes the silence of the accused into evidence against him is quite another.”

In distinguishing Griffin the majority correctly notes that the strict rule espoused in Griffin directs only that the trial judge refrain from instructing the jury that an accused’s failure to take the stand may be the basis for an inference of the accused’s guilt. The purpose of the Griffin rule, however, is to prevent the accused’s exercise of his constitutional privilege against self-incrimination from being judicially emphasized as evidence against him. Logically then, should not the Griffin reasoning apply equally whether the inference is aroused affirmatively or negatively?

The majority acknowledge that the trial judge should respect the accused’s request for no instruction, but place an impossible burden on him to show “actual prejudice” when his request is denied. Certainly if a defendant’s silence were spotlighted by a cunning prosecutorial argument, couched as a negative pregnant, the majority would find sufficient possibility of the “actual prejudice” which it could not see when illumination of the silence had come less auspiciously, but more persuasively from a judge, in the form of an instruction given over prior objection. Recognizing that a convicted defendant is precluded from inquiring into jurors’ reasons for their verdicts, what evidence could an accused possibly add to his conviction by that jury to indicate the probable presence of actual prejudice?

While I would not recommend the practice, I agree that such an instruction given sua sponte but without prior objection is not error, recognizing as the majority points out, however, that there is a division of authority even there. Anno. 18 A.L.R.3d 1335. I am convinced that the trend is toward disallowing a charge concerning silence when an objection is interposed. I am more convinced by the simple logic of the implied answer to the rhetorical question of the curate in Cervantes’ Don Quixote “. .. can there ever be too much of a good thing?”. Even constitutional rights can be force-fed to a reluctant defendant until he is choked by the well intended benefactor. It is for that reason, among others, that a defendant may waive his rights, even constitutional ones.

I am persuaded by the reasoning of Mr. Justice Frankfurter in Bruno v. United States, 308 U. S. 287, 294 as he responded “To the suggestion that it benefits a defendant who fails to take the stand not to have the attention of the jury directed to that fact. . . .” Justice Frankfurter continued:

“. . . it suffices to say that, however difficult it may be to exercise enlightened self interest, the accused should be allowed to make his own choice when an Act of Congress authorizes him to choose.”

If an accused is “entitled as a matter of right to have the trial judge tell the jury it must not attach any importance to the defendant’s failure to testify”, see Bruno, supra, 308 U. S. at 294, he should have the correlative right to say whether or not his silence should be singled out for the jury’s attention.

I respectfully dissent.

      . See e.g., Russell v. State, 398 S.W.2d 213 (Ark. 1966); People v. Molano, 61 Cal. Rptr. 821 (1967); Villines v. State, 492 P. 2d 343 (Okla. 1971); Mosby v. State, 440 S.W.2d 230 (Ark. 1969); Gross v. State, 306 N.E.2d 371 (Ind. 1974); and State v. White, 285 A. 2d 832 (Me. 1972).

      . In Bruno the Supreme Court found error in the absence of the charge after defendant had requested it. In a dissenting opinion in United States v. Gainey, 380 U. S. 63, 73, Mr. Justice Douglas described Bruno:
      “Just as it is improper for counsel to argue from the defendant’s silence, so is it improper for the trial judge to call attention to the fact of defendant’s silence. Indeed, under 18 U.S.C. Sec. 3481 the defendant is entitled as a matter of right to have the trial judge expressly tell the jury that it must not attach any importance to the defendant’s failure to testify; or, if the defendant sees fit, he may choose to have no mention made of his silence by anyone. Bruno v. United States, 308 U. S. 287, 84 L. Ed. 257, 60 S. Ct. 198.” [Emphasis added].


author: Powers, J.,

text:
    CHARLES W. TIPTON v. WARDEN, MARYLAND HOUSE OF CORRECTION
    [No. 984,
    September Term, 1974.]

      Decided September 22, 1975.

    The cause was argued before Powers, Lowe and Mason, JJ.

      Arnold M. Zerwitz, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Dennis M. Henderson, Assistant Public Defender, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William E. Brannan, State’s Attorney for Baltimore County, and John A. Austin, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

Charles H. Tipton’s petition for post conviction relief, Code, Art. 27, § 645A et seq., was denied by Judge Albert P. Close, sitting in the Circuit Court for Baltimore County. We granted Tipton’s application to this Court for leave to appeal. The case was placed on our regular appeal docket, and has been briefed and argued.

What appellant seeks to be relieved of are the judgments of conviction and sentences imposed on charges of assault with intent to murder, attempted subornation of perjury, and carrying openly a pistol with intent to injure another, after a non-jury trial on 13 and 14 November 1968 in the Circuit Court for Baltimore County before Judge John N. Maguire. We affirmed those judgments on direct appeal in Tipton v. State, 8 Md. App. 91, 258 A. 2d 606 (1969), cert. denied, 257 Md. 736 (1970).

The petition for post conviction relief now under review is Tipton’s first. The grounds alleged below were:

a. That your Petitioner was not adequately represented by counsel at the trial of the case.
b. That he was not accorded a fair trial in that there was a fraud perpetrated at the time of trial, said fraud being either on the court or that the court was a part of said fraud. That while the intent was to be of benefit to your Petitioner, the effect was to deny your Petitioner a fair trial.

An affidavit sworn to by Tipton and filed in support of his petition is more illuminating. In the affidavit he swore:

“1. That your Petitioner retained W. Lee Harrison, Esquire, to represent him in Indictment #34199-03 Baltimore County, Maryland.
2. That your Petitioner at the suggestion and consent of said counsel, paid said counsel $2,000.00, that sum allegedly to be paid to the Judge hearing said case, the purpose of which was either to secure a favorable decision or to secure a light sentence.
3. That your Petitioner believes that due to the interference of Arthur Hamilton, an agent for the F.B.I., the scheme was not successful.
4. That your Petitioner was tried and convicted and believes that:
a. He was denied a jury trial upon the advice of counsel and he was under the impression that his case had been ‘fixed.’
b. That Petitioner’s counsel failed to diligently pursue the defense of said case.”

At the hearing below on his petition Tipton was represented by privately engaged counsel. The hearing before Judge Close was held on 8 and 9 August 1974. On 10 December 1974 Judge Close filed a Memorandum Opinion, and an Order denying the petition for post conviction relief. Both bore the date of 9 December 1974.

As required by Maryland Rule BK46 b. Tipton’s application for leave to appeal included a statement of the reasons why the order should be reversed or modified. The issues in this appeal, however, are confined to those raised in the briefs. If any other issues were available, they have been waived. Ricker v. Abrams, 263 Md. 509, 516, 283 Á. 2d 583 (1971). We shall consider the case within the scope of the Question Presented as appellant states it in his brief. He asks:

“Was Appellant denied a fair hearing on his post conviction petition by the hearing judge’s refusal to make findings of fact on questions raised in the uetition?”

Appellant’s brief explains more fully the scope of the question he presents. He says:

“The various contentions raised by Appellant in the post conviction proceeding below involved three basic questions: (1) whether he knowingly, intelligently and voluntarily waived his right to trial by jury; (2) whether he was incompetently represented by counsel, and (3) whether he was denied due process of law because of improper conduct of counsel. The circumstance which gave rise to all three contentions was the purported existence of an agreement between Appellant and defense counsel at trial that the latter would ‘fix’ the case through bribery. Findings of fact as to the existence and nature of the alleged scheme and the circumstances which brought it into being are critical to a proper determination of the three questions. Appellant contends that he was induced to forego trial by jury by his belief ‘that the fix was in,’ and that counsel’s involvement in the illegal agreement and/or representations precluded competent representation and a fair trial.”

The position of appellant here is not that there was error in any finding of fact made by the hearing judge, but that the error was in not making findings of fact, as the cases require, on all contentions raised. Appellant does not ask that we grant ultimate relief, but that we remand the case to the hearing judge with directions that he make findings of fact on all issues raised.

The issues raised — waiver of a jury trial, competent representation by counsel, and denial of due process because of improper conduct of counsel — all arise from appellant’s allegation that his trial was or was said to be “fixed”, by payment of a bribe by his attorney to the trial judge.

Appellant insists that there had to be a finding of the truth or falsity of that fact before the hearing judge could focus proper judicial scrutiny on the constitutional issues. He asks that we remand the case for such a finding.

In his memorandum opinion filed with the order denying post conviction relief, Judge Close concluded that Tipton, “personally by way of knowing acquiescence, after advice, elected a court trial.” Judge Close then reviewed in detail the evidence on the question of counsel’s competency, and made a finding that, “Petitioner has fallen far short of providing the proof required.”

Appellant’s contention that he was denied due process, and did not receive a fair trial because of his counsel’s improper conduct is based squarely upon his claim that Mr. Harrison paid, or led Tipton to believe that he paid a bribe to Judge Maguire to obtain a favorable result in the trial. Judge Close found expressly that there was “no evidence that Judge Maguire received any money, participated in any way in the suggestion of receiving any money or heard or knew anything about any money to be paid as alleged.”

These findings by Judge Close left open the single factual possibility, under Tipton’s contentions, that Tipton was double crossed by his own attorney. For the purpose of deciding the petition before him, Judge Close saw, “no need to make any findings as to Mr. Harrison’s involvement in this regard.” Appellant insists here that he is entitled to a finding of fact on that issue.

Under the circumstances of Tipton’s contentions, we decline to be drawn into the position of attempting to decide, or requiring the lower court to decide, in a collateral proceeding, the guilt or innocence of crime of a-person who is not a party to this proceeding.

The reason for our ruling should be made clear. In our view, such a finding of fact, one way or the other, would be totally irrelevant to Tipton’s right to post conviction relief. In asking that relief he says that he was not afforded the fair trial which was his right under the fundamental constitutional guarantee that every person accused of crime is entitled to a fair trial, with due process of law.

If Tipton’s story that his trial was to be fixed by bribery should be found to be false, then the premise of his claim would disappear. If that story should be found to be true, it would demonstrate that what Tipton least wanted was a fair trial — that what he really sought was an unfair trial, a “fixed” trial.

The courts will not hear Tipton, or anyone else, complain that he was denied a fair trial because he failed in his attempt to prostitute justice and have an unfair trial.

Order affirmed.


author: Orth, C. J.,

text:
    STATE OF MARYLAND v. LEE FRANKLIN DeLAWDER
    [No. 1134,
    September Term, 1974.]

      Decided September 23, 1975.

      The cause was argued before Orth, C. J., and Melvin, J., and Edward F. Borgerding, Administrative Judge of the District Court of Maryland foi District 1, specially assigned.

      Donald R. Stutman, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Jerome C. Schaefer, Assistant State’s Attorney for Montgomery County, on the brief, for appellant.

      Michael G. Trainer, Assigned Public Defender, for appellee.
   Orth, C. J.,

delivered the opinion of the Court.

STATEMENT OF THE CASE

On 30 June 1972 Lee Franklin DeLawder was found guilty by a jury in the Circuit Court for Montgomery County of carnal knowledge of a female under the age of 14 years. A 15 year sentence was imposed. The judgment was affirmed on direct appeal. DeLawder v. State, No. 663, September Term, 1972, filed 8 June 1973, unreported, 18 Md. App. 740, cert. denied, 269 Md. 757. He filed a petition on 19 December 1973 attacking the judgment under post conviction procedures. After a plenary hearing, relief was denied by an order of the Circuit Court for Montgomery County issued 14 October 1974. Maryland Rule BK45 a. DeLawder sought leave to appeal. Code, Art. 27, § 645-1; Maryland Rule BK46. We granted the application and ordered the case remanded for compliance with Rule BK45 b requiring that the order of the hearing court shall be accompanied by a short memorandum which shall include the reasons for the action taken thereon. DeLawder v. Warden, 23 Md. App. 435.

One of the grounds presented in the post conviction proceeding as reason why the order should be reversed was that the court in the trial of the substantive offense had denied DeLawder his constitutional right to cross-examine the witnesses against him as that right was to be enjoyed in the light of Davis v. Alaska, 415 U. S. 308, decided 27 February 1974. On remand, the hearing court held that the right had been violated and that Davis was to be given full retroactive application. By order issued 14 January 1975 it vacated the judgment and ordered that DeLawder be given a new trial. The State applied for leave to appeal. We granted the application by our order of 25 February 1975 and directed that the case be transferred to our regular appeal docket. Briefs were duly filed and oral argument received.

ISSUES FOR DECISION

1) Whether DeL'awder’s right of cross-examination was violated under the rule of Davis v. Alaska, ■ supra.
2) E so, whether Davis has retroactive application.

THE LAW

In affirming the judgment on direct appeal, we held that the trial court did not err in sustaining objections made to questions attempting to show that the prosecuting witness had sexual intercourse with other men on other occasions. The general rule is that because consent is not an issue in a carnal knowledge prosecution, evidence that the prosecutrix had prior intercourse with men other than the accused, or that her reputation for chastity was bad is immaterial when offered as an excuse or justification, and so is inadmissible for that reason. Annot., 140 A.L.R. 364, 365; 1 Wharton’s Criminal Evidence § 237 at 522 (13th ed. 1972). This rule was stated by the Court of Appeals in Rau v. State, 133 Md. 613, 615:

“The prosecutrix under the law by reason of her age was not capable of consenting to sexual intercourse with the traverser and the question of her prior intercourse with another or her chastity was not a material issue and could not reflect upon his guilt or innocence, under the fourth count of the indictment [carnal knowledge].”

There is an exception to the general rule when it appears that the hymen of the prosecutrix has been ruptured or injured and it is alleged that the trauma was caused by the defendant. To rebut such proof the defendant may introduce evidence of acts of prior unchastity of the prosecutrix as tending to show that another was responsible for the trauma. 140 A.L.R. at 367. Compare Duvall v. State, 151 Md. 38, 42. The only acts of intercourse, however, which may be shown are those occurring about the time of the act which, in the nature of things, could have caused the condition. Wharton, supra, at 525.

The trial judge correctly applied these rules. He restricted the introduction of evidence concerning the unchastity of the prosecutrix on the ground that consent is not an element of the crime of carnal knowledge. He permitted testimony concerning her sexual activity “within a day or two” of the alleged crime because when she was medically examined about 6 hours after the time the crime was alleged to have been committed, there was bruising and discoloration around the hymen or introitus of the vaginal canal. It was the opinion of the examining physician that the bruising occurred within two or three days prior to the examination. DeLawder, however, contends that in the light of Davis the trial court, by restricting cross-examination, violated his constitutional right to confront his accusers. Our holding on direct appeal did not necessarily finally litigate the contention as presented upon collateral attack. Code, Art. 27, § 645A (d) provides:

“For the purposes of this subtitle and notwithstanding any other provision hereof, no allegation of error shall be deemed to have been finally litigated or waived where, subsequent to any decision upon the merits thereof or subsequent to any proceeding in which said allegation otherwise may have been waived, any court whose decisions are binding upon the lower courts of this State holds that the Constitution of the United States or of Maryland imposed upon State criminal proceedings a procedural or substantive standard not theretofore recognized, which standard is intended to be applied retrospectively and would thereby affect the validity of the petitioner’s conviction or sentence.”

As Davis, was decided subsequent to our decision, we must determine whether it affects the validity of DeLawder’s conviction.

The Confrontation Clause of the Sixth Amendment

In Davis, at 315, the Supreme Court of the United States reviewed the reach of the Confrontation Clause of the Sixth Amendment to the federal Constitution. “The Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution ‘to be confronted with the witnesses against him.’ This right is secured for defendants in state as well as federal criminal proceedings under Pointer v. Texas, 380 U. S. 400 (1965). Confrontation means more than being allowed to confront the witness physically.. ‘Our cases construing the [confrontation] clause hold that a primary interest secured by it is the right of cross-examination.’ Douglas v. Alabama, 380 U. S. 415, 418 (1965).” “Cross-examination”, the Court observed, at 316, “is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’s perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.” A witness may be discredited by a general attack on his credibility by introducing evidence of a prior criminal conviction of that witness. “By so doing the cross-examiner intends to afford the jury a basis to infer that the witness’ character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony.” Id. A witness may also be discredited by a more particularized attack. This is done by means of cross-examination directed toward revealing possible biases, prejudices, or ulterior motives of the witness as they may relate directly to issues or personalities in the case at hand. “The partiality of a witness is subject to exploration at trial, and is ‘always relevant as discrediting the witness and affecting the weight of his testimony.’ 3A J. Wigmore, Evidence § 940, p. 775 (Chadbourn rev. 1970).” Id. The Supreme Court has recognized “that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. Greene v. McElroy, 360 U. S. 474, 496 (1959).” Id., at 316-317. The denial of effective cross-examination “ ‘would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’ ” Id., at 318, quoting Brookhart v. Janis, 384 U. S. 1, 3 (1966) as quoted in Smith v. Illinois, 390 U. S. 129, 131 (1968).

We look to see how these rules were applied in Davis.

The Davis Ruling

Davis was convicted of burglary and grand larceny in a state court at a trial in which the court on motion of the prosecution issued a protective order prohibiting the questioning of Richard Green, a key prosecution witness, concerning Green’s adjudication as a juvenile delinquent relating to a burglary and his probation status at the time of the events as to which he wa§ to testify. The motion was granted in reliance on a state rule and statute which preserved the confidentiality of juvenile adjudications of delinquency. The evidence against Davis was entirely circumstantial and the defense wanted to point out to the jury that Green was on probation for robbery, suggesting the possibility that he acted either out of .fear or concern for his probationary status. The defense made clear that it did not intend to use Green’s juvenile record to impeach his credibility generally, but only as necessary to examine him for any possible bias and prejudice. “Not only might Green have made a hasty and faulty identification of [Davis] to shift suspicion away from himself as one who robbed the Polar Bar, but Green might have been subject to undue pressure from the police and made his identification under fear of possible parole revocation.” 415 U. S. at 311. See 43 U. Cin. L. Rev. 647 (1974). The trial court rejected even this limited use of Green’s adjudication, but defense counsel did his best to expose Green’s state of mind at the time he discovered the safe. Green, however, made a flat denial to questions whether he was upset by the fact that the safe was found on his property, whether he felt the authorities might suspect him, and whether he felt uncomfortable about it. Asked, “Did you suspect for a moment that the police might somehow think you were involved in this?”, he replied, “I thought they might ask a few questions is all.” It was elicited that Green was questioned about the incident by the investigating officers. He was then asked, “Had you ever been questioned like that before by any law enforcement officers?” and answered, “No.” The prosecution objected and the court sustained the objection. Davis, at 312-313. Thus “[w]hile counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial.” Davis, at 318.

The Alaska Supreme Court refused to reach the issue of whether the State’s policy of preserving the anonymity of a juvenile offender denied Davis his Sixth Amendment right of confrontation. It affirmed the conviction on the grounds that the scope of cross-examination allowed was adequate to develop the issue of bias and convey it to the jury. Id., at 315; Davis v. State, 499 P. 2d 1025, 1036. The Supreme Court did not accept this. It said, at 318:

“On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor’s objection put it, a ‘rehash’ of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.”

It held that disallowance of the defense’s attempt to show bias of the prosecution’s crucial witness by cross-examination concerning the witness’ juvenile record violated Davis’s Sixth and Fourteenth Amendment rights. Id. It is clear that Davis turned on the correctness of the Alaska court’s evaluation of the “adequacy” of the scope of the cross-examination permitted. The ■ Supreme Court reversed because it disagreed with the Alaska court’s interpretation .of the Confrontation Clause. Id., at 315. The view of the Supreme Court was that the matter-suppressed was necessary, in the case in order “to show-the existence of possible bias and prejudice... Id., at 317.

THE INSTANT CASE

DeLawder’s counsel made clear from the onset of the case that the defense strategy would be to discredit the prosecuting witness by revealing her possible biases, prejudices, or ulterior motives in alleging that DeLawder •carnally knew her in the early morning of 20 January 1972. This strategy would be pursued by the tactic of proving that at the time of the alleged incident, she thought she was pregnant by someone else and claimed that DeLawder raped her because she was afraid to tell her mother she voluntarily had sexual intercourse with others. To show that she thought she was pregnant at the time of the alleged encounter with DeLawder, it would be necessary to establish that she had engaged in prior acts of sexual intercourse. The proposed strategy was first disclosed when the State offered a motion in limine immediately before the start of the retrial. The motion was that the defense refrain from any questions or any remarks in opening or closing statement as to the reputation of the prosecutrix for chastity. Defense counsel objected to the grant of the motion:

“In regard to the first motion made by the State, we proffer that there are two witnesses, one which will testify that he had a conversation with this young lady two days after this incident allegedly occurred, at which time she told him she was pregnant by another man.
Her mother, there will be testimony to the effect that her mother is very strict, not the type of person that a girl could come home and tell her mother she was pregnant.
We have testimony from the girl’s best friend that this girl, [the prosecutrix], told the best friend that she was pregnant, and that either Stanley Hicks or Darrell McDonald was the father.
This supposedly occurred prior to the time this alleged rape took place.”

The strategy was iterated and reiterated during vain attempts to pursue the point on cross-examination of the prosecutrix. On appeal, DeLawder puts it this way:

“The Appellee [DeLawder] readily admits that in the case of statutory rape, consent is not an element of the crime and, therefore, the question of the chastity of the prosecutrix is entirely immaterial and evidence related thereto should be excluded. Rau v. State, 133 Md. 613 (1919). However, at the trial of this case Appellee was not offering evidence to show consent or chastity of the prosecutrix, but was attempting to adduce evidence directly relating to the prosecutrix’ credibility and the veracity of her testimony. The attempts by defense counsel to cross-examine the prosecutrix in this case and his proffers to the Court throughout the course of the trial indicate that evidence of her prior conduct was not introduced ‘to show prior acts of sexual intercourse . . . (but) to show motive on the part of (the prosecutrix), and that she lies about these things,’ . . . and that she had made prior accusations of statutory rape against other individuals. . . . While this type of evidence necessarily involves the prior sexual conduct and chastity of the prosecutrix, its purpose goes beyond this issue to the issue of the credibility of the witness, an issue that must be tested in order to insure a full and fair trial to the accused.”

On cross-examination DeLawder’s counsel attempted to question the prosecutrix concerning her sexual activities prior to the incident in order to impeach her credibility. He asked her if she had talked to a Tommy Soper after the alleged crime:

“Q. Do you recall having a conversation two days after this incident took place with a boy named Tommy Soper?
A. No, sir.
Q. You do not recall having such a conversation?
A. No, sir.
Q. Do you recall that Kenny Jones and Tommy Soper came to your house at that time?
A. Yes, sir; I do.
Q. And you did not have a conversation with Tommy Soper?
A. No, sir.
Q. You never said a word to him?
A. No.”

The cross-examination continued:

“Q. At the time of this alleged rape, I am talking about before the alleged rape took place, did you think you were pregnant?
A. No, sir.
Q. Do you know a girl named Pamela Henning? ll A. Yes, sir.
Q. As a matter of fact, she is your best friend, isn’t she?
A. Yes, sir.
Q. You do not recall telling her something different?
MR. MITCHELL [Assistant State’s Attorney]: I object now, Your Honor. Pamela testified at the trial.
MR. SMALLWOOD [Defense Counsel]: No, sir.
THE COURT: Objection be sustained.”

Precluded from questioning the prosecutrix concerning her conversations with Pamela Henning, defense counsel iterated his reasons for pursuing this line of questioning:

“Your Honor, in order to properly defend this man, I have got to show a motive for this girl lying about it.
I proffer that her mother is very strict and has on occasion beat this girl until she was black and blue with a board, never allowed her to date. .. .
And this girl was scared to death of her mother and could not go home and tell her mother that she was pregnant; but if she could go home and tell her mother, ‘I’ve been raped; now, I am pregnant,’ she could then get off the hook.
I state, Your Honor, that it is perfectly proper for me to bring this fact out to show this girl’s motive for lying, especially when two witnesses who will testify that this girl said she was pregnant around that time by either Stanley Hicks or Darrell Anderson; and she also phoned another boy by the name of Russell Alder and accused him, or his cousin, of making her pregnant.
I state, Your Honor, that that is sufficient to give this girl a motive for lying about a man raping her.
Not only that, but at the time she went to the hospital, before she went to the hospital, she lied to the police officer and told him that she had intercourse with a boy named Michael Ryan.”

The Court refused to accept this argument:

“You know all of this is not going to be permitted at this trial. This is a carnal knowledge of a girl under fourteen. . . . [1
You are talking about all kinds of conjecture which I think really is going beyond the proper evidence in this case.”

Later counsel was denied the opportunity to cross-examine the prosecutrix about her conversation with Russell Alder. The court ruled that such evidence “would be before the fact, several weeks.” The trial court also restricted counsel when inquiring into the prosecutrix’s conversations with Officer Householder:

“Q. What did you tell Officer Householder?
A. Just what I told you all.
Q. You did not tell him anything additional to what you told us?
A. No.
Q. Did you tell him anything about Michael Ryan?
MR. MITCHELL: I object, Your Honor.
THE COURT: You may answer that yes or no.
Do not say anything more.
THE WITNESS: Yes, I did.
BY MR. SMALLWOOD:
Q. What did you tell him?
MR. MITCHELL: I object,
THE COURT: Objection be sustained:

When counsel attempted to cross-examine the prosecutrix concerning her relationship to her mother, he was again thwarted by the court:

“Q. Are you afraid of your mother?
MR. MITCHELL: I object.
THE COURT: Sustained.
MR. SMALLWOOD: May we approach the bench, Your Honor?
(Whereupon, bench conference as follows:)
MR. SMALLWOOD: Your Honor, I would like to establish the relationship between this girl and her mother as to her fear of telling her mother that she thought she was pregnant at that time.
I think that is very relevant to this case as establishing her motive for lying about this alleged rape.
I mean the jury is not going to believe a man’s story if they cannot see some motive for the girl lying. If she is scared to death of her mother, she is not about to walk through the door and say, ‘Ma, I’m pregnant.’
MR. MITCHELL: The rules of evidence do not conform to counsel’s theory in the case.
THE COURT: All right, you have your statement in the record. I do not think that that — well, I think the exception is well taken.
Whether she was scared of her mother per se is not relevant in this case at this time.”

Later in the trial, during the direct examination of the prosecutrix, called by DeLawder to testify in his behalf after the court refused to allow the defense to call her as a hostile witness, the court, citing Rau v. State, supra, to the effect that consent is no element of the crime of statutory rape, said: “In my judgment, what you are trying to do now under the guise of impeachment, is trying to bring in chastity, the lack of chastity. None of this is relevant here. Her statements about relations on New Year’s Eve, whether they were by one boy or another boy, concerning chastity, are in my judgment, or should not be gone into any further here, because no criminal charges are brought against either one of these people; and to put it very bluntly, what you are wishing to do now is to indirectly do what you cannot do directly, and that is, bring the prior chastity into this picture, and so to sum it all up, what you wish to do is impeach her chastity or [reputation], which you mentioned or other extraneous matters; and she has already been on the stand, and you have had ample opportunity.”

DECISION

The Applicability of Davis

Defense counsel did his best to show the existence of possible bias, prejudice or ulterior motive of the prosecutrix, causing her to assert that DeLawder carnally knew her. We cannot speculate, more than the Court could in Davis, as to whether the jury, as the sole judge of the credibility of a witness, would have accepted this line of reasoning had counsel been permitted to present it fully. But we do conclude, as the Court concluded in Davis, that the jurors were entitled to have the benefit of the defense theory before them so they could make an informed judgment as to the weight to place on the prosecutrix’s testimony which provided “a crucial link in the proof ... of [the accused’s] act.” Douglas v. Alabama, supra, at 419. The accuracy and truthfulness of the prosecutrix’s testimony, perhaps even more so than was the case with the witness in Davis, were key elements in the State’s case against DeLawder. In fact, its case depended entirely on her veracity. The claim of bias, prejudice or ulterior motive which the defense sought to develop was admissible to afford a basis for an inference of undue pressure because of the prosecutrix’s possible fear of her mother. The defense was unable to make a record from which to argue to the jury why the prosecutrix might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. It seems clear to us, in the light of Davis, that defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness. By being prevented from so doing DeLawder was denied the right of effective cross-examination, a constitutional error of the first magnitude which no amount of showing of want of prejudice would cure.

Our decision does not portend a general departure from the rule enunciated in Rau v. State, supra. It is only that in the setting here, the right of confrontation is paramount to a rule of evidence. We conclude, as the Court concluded in Davis, at 320, that the desirability that the prosecutrix fulfill her public duty to testify free from embarrassment and with her reputation unblemished must fall before the right of an accused to seek out the truth in the process of defending himself.

The Retroactivity of Davis

It is manifest from our application of the Davis dictates to the case at hand that we believe that Davis has retroactive effect. Foremost among the three criteria guiding resolution of the question of the retroactive effect of a holding of the Supreme Court of the United States is the purpose to be served by the new rule. Desist v. United States, 394 U. S. 244, 249. When the purpose involves the reliability of the fact determining process of guilt or innocence, the Supreme Court has accorded full retroactivity to its decision without regard to the other two criteria. State v. Ingel, 18 Md. App. 514, 522. The right of confrontation guaranteed by the Sixth Amendment has been held to be retroactive. Barber v. Page, 390 U. S. 719; Berger v. California, 393 U. S. 314. We so consider the Davis dictates.

We note that DeLawder did not seek leave to appeal from the denial of relief with regard to the allegation of incompetency of trial counsel and the allegation of the use of perjured testimony by the State. Neither of these allegations are properly before us, although DeLawder presents the question of his trial counsel’s competence in his brief.

Order of 1U January 1975 of the Circuit Court for Montgomery County affirmed; costs to be paid by Montgomery County.

      . In the early morning hours of 16 February 1970 a safe was stolen from the Polar Bar in Anchorage, Alaska. Green, then 16 years of age, discovered the safe the next day near his home. He told investigating^ officers that he had seen and spoken with two black men near where the safe had been found. He identified Davis as one of the men from photographs and in a lineup. Davis v. Alaska, supra, at 309-310.

      . The Court did not challenge the State’s interest as a matter of its own policy in the administration of criminal justice to seek to preserve the anonymity of a juvenile offender.
      “Here, however, petitioner sought to introduce evidence of Green’s probation for the purpose of suggesting that Green was biased and, therefore, that his testimony was either not to be believed in his identification of petitioner or at least very carefully considered in that light. Serious damage to the strength of the State’s case would have been a real possibility had petitioner been allowed to pursue this line of inquiry. In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. Whatever temporary embarrassment might result to Green or his family by disclosure of his juvende record — if the prosecution insisted on using him to make its case — is outweighed by petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness. . . .
      The State’s policy interest in protecting the confidentiality of a juvenile offender’s record cannot require yielding of so vital a constitutional right as the effective cross-examination for bias of an adverse witness.” Id., at 319-320.

      . Mr. Justice Stewart wrote a concurring opinion to emphasize that “the Court neither holds nor suggests that the Constitution confers a right in every case to impeach the general credibility of a witness through cross-examination about his past delinquency adjudications or criminal convictions.” Id., at 321.
      Mr. Justice White, joined by Mr.. Justice Relinquish wrote a dissenting opinion in which he saw no constitutional principle at stake. “This is nothing more than a typical instance of a trial court exercising its discretion to -control or limit cross-examination, followed "by a typical decision of a state appellate court refusing to disturb the judgment of the trial court and itself concluding that limiting cross-examination had done no substantial harm -to the defense.” He objected to the Court “second-guessing the state courts....” Id., at 321.

      . DeLawder was indicted on 9 February 1972 on charges of rape, assault with intent to rape, carnal knowledge,-attempted carnal knowledge, assault and battery, and assault.. He went to trial before a jury on 8 May 1972. Before the jury retired to deliberate its verdict the State entered a nolle prosequi to all counts of the indictment except that charging rape and that charging carnal knowledge. The jury were unable to agree on a verdict and on 12 May 1972 the court declared a mistrial. On 19 May 1972 the State nol pressed the rape count and retrial commenced on 27 June 1972 on the charge of carnal knowledge.

      . During the argument on the motion in limine defense counsel proffered that a witness would testify that the prosecutrix had told him two days after the alleged rape that she was pregnant by another. It is patent that this witness was Soper.

      . It is apparent that Pamela Henning was the other witness whose testimony was proffered during the argument of the motion in limine.

      . The court continued: “and she has already said that she was afraid she might have been pregnant. She answered that question, and do not pursue it any more.” The prosecutrix in fact denied she thought she was pregnant at the time of the alleged coitus with DeLawder. The court later recognized that the prosecutrix had indicated only that she was afraid she was pregnant as a result of the alleged rape.

      . Householder was a Montgomery County deputy sheriff who had conducted an investigation into the allegations of the prosecutrix.

      . In Chelton v. State, 45 Md. 564 (1877), the Court of Appeals said, at 570:
      “The rule is well settled that while it is competent to prove that a witness for the State has a bias or ill-will against a prisoner, so that the jury may know what weight is to be given to his testimony, it is altogether inadmissible to go into any inquiry as to the causes or circumstances which have created such bias. This as has been correctly argued by the Attorney General would introduce into the trial innumerable side issues, not pertinent or proper for the consideration of the jury.”
      It seems that Chelton has not been cited in a subsequent opinion of the Court, and the rule of law it enunciated does not appear to have been specifically affirmed or further applied. See Beasley v. State, 271 Md. 521 (1974); DeLilly v. State, 11 Md. App. 676, 681 (1971).

      . We point out that the Court in Davis, quoted, at 320, Alford v. United States, 282 U. S. 687, 694:
      “[N]o obligation is imposed on the court, such as that suggested below, to protect a witness from being discredited on cross-examination, short of an attempted invasion of his constitutional protection from self-incrimination, properly invoked. There is a duty to protect him from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.”

      . Our interpretation of Davis is not to be construed as an abrogation of the rule that a witness can be impeached by extrinsic evidence only with regard to material facts and not with respect to facts that are collateral, irrelevant or immaterial to issues of the case. Smith v. State, 273 Md. 152. Matters which affect the bias, prejudice and ulterior motives of a witness are material and not collateral. McCormick on Evidence, § 36 (2d ed. 1972).