text:
    BOARD OF EDUCATION OF CHARLES COUNTY et al. v. EDUCATION ASSOCIATION OF CHARLES COUNTY et al.
    [No. 215,
    September Term, 1978.]

      Decided March 7, 1979.

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

      Edward S. Digges, Jr., and Susan Gillette, with whom was Edward S. Digges, Sr., on the brief, for appellants.

      Susan W. Russell, with whom were Walter S. Levin and James R. Whattam on the brief, for appellees.
   Melvin, J.,

delivered the opinion of the Court.

On April 21, 1976, the Education Association of Charles County (Association) entered into a collective bargaining contract (Agreement) with the Board of Education of Charles County (Board). The Association had previously been designated by the Board as the exclusive bargaining agent for all certificated professional employees of the Board, pursuant to Article 77, '§ 160 of the Maryland Annotated Code (1957, 1975 Repl. Vol.). Section 160 (h) of Article 77 required the Board, when requested by the Association, to meet and negotiate with the Association “in good faith” “with regard to all matters relating to salaries, wages, hours and other working conditions” “and to reduce to writing the matters agreed upon as a result of such negotiations”. Section 160 (h) further provided that “such agreements may include a provision for the binding arbitration of grievances arising under such terms of the agreement as the parties have agreed to be arbitrable”. The Agreement contained grievance procedures terminating in binding arbitration, with no restriction on the arbitrability of the matters agreed upon.

The appellees in this case are the Association and one of its members, Darlene Sale. The appellants are the Board and the Charles County Superintendent of Schools, Jesse L. Starkey. Although not a named party to the April 21, 1976 Agreement, Starkey signed the Agreement in his capacity as Superintendent.

The appellants appeal from an Order of the Circuit Court for Charles County, dated February 15, 1978. The order in effect confirmed an arbitration award of April 1, 1977, that “directed] the School Administration to effect a transfer of the Grievant [Darlene Sale] to an available elementary school teaching position for the 1977-78 school year, in accordance with its contractual commitment”. The matter was submitted to the trial court on motions for summary judgments filed by the opposing parties. The court’s order granted the motion for summary judgment filed by the Appellees (the Association and Darlene Sale) and denied the motion for summary judgment filed by the appellants (the Board and Superintendent Starkey).

I

The relevant undisputed facts that form the background of this dispute are as follows: In March 1976, Darlene Sale was a tenured certificated professional employee of the Board, working as a librarian at a Middle School in the Charles County School System. Her request to be transferred to a position as an elementary school teacher in the county was denied by the Superintendent. Following the grievance procedures set forth in the Agreement, Sale moved the matter to binding arbitration. An arbitration hearing was held on February 2,1977, before a single arbitrator. The issue before the arbitrator was whether the Superintendent’s denial of the grievant’s request to be transferred to a teaching position was violative of the provisions of the collective bargaining Agreement. The arbitrator decided that the denial violated two provisions of the Agreement and, as already noted, on April 1, 1977, directed that “the School Administration ... effect a transfer of the Grievant to an available elementary school teaching position for the 1977-78 school year____”

The two provisions of the Agreement the arbitrator decided were violated read as follows:

“ARTICLE VI
EMPLOYEE ASSIGNMENT
B. Whenever possible, employees will be assigned to positions within the scope of their professional certificates and/or their major or minor fields of study. Currently employed professional personnel not assigned within their area of certification will be given priority consideration in filling vacant positions within their area of certification.”

and

“ARTICLE VII
VOLUNTARY REASSIGNMENT
A. In considering an employee’s request for reassignment, the wishes of the employee will be honored to the extent that a vacancy for which he is qualified exists and there is no conflict with the best interests of the school system.”

With respect to Article VI (B), the arbitrator based his finding of a breach upon his conclusion that “[t]he record contains no proof that it was not possible for the Board to transfer the Grievant to an elementary school teaching position”. With respect to Article VII (A), the arbitrator found a breach because 1) the grievant Sale was “qualified”, 2) “there existed, vacancies to which she could have been transferred”, and 3) in the opinion of the arbitrator there was no satisfactory evidence that the “Grievant’s transfer conflicted with the best interests of the school system”.

The appellants took no action to comply with the arbitrator’s award. In October 1977, seven months after the award, the appellees petitioned the court for a decree confirming the award and directing the appellants to comply with it. In their answer to the petition the appellants alleged that “[t]he particular arbitration award was in direct confrontation with existing statutory law and constituted an aberration that is unenforceable”. In granting appellees’ motion for summary judgment, the trial court did not reach the merits of this defense. Instead, the court relied on the provisions of Maryland Rule E2 and certain provisions of the Maryland Uniform Arbitration Act (Cts. & Jud. Proceedings Article of the Code (1974), §§ 3-201 to 3-234 inch)

Section 3-227 (b) of the Maryland Uniform Arbitration Act provides that, upon petition of a party, “[t]he court shall confirm the award, unless the other party has filed an application to vacate, modify or correct the award within the time provided in §§ 3-222 and 3-223”. Because the appellants had at no time filed an application to vacate the award, the trial court felt that the appellants’ attack upon the award, made by way of a defense to the petition for confirmation, came too late to be considered.

II

Art. 77, § 6-201 (b) of the Education Article of the Code (1978) provided as follows:

“The county superintendent of schools shall nominate, for appointment by the county board of education, all principals, all teachers, and all other certificated personnel. He shall assign them to their positions in the schools, transfer them as the needs of the schools require, recommend them for promotion, suspend them for cause, and recommend them for dismissal in accordance with the provisions in § 114 of this article. (An. Code, 1951, § 147; 1939, § 136; 1924, § 139; 1916, ch. 506, § 72E; 1969, ch. 405, § 1.)” (Emphasis supplied.)

As we understand appellants’ argument on appeal, it is that in view of this section of the State’s education laws, the power to effect personnel transfers is vested exclusively in the superintendent and is a power that cannot be delegated to an arbitrator and any agreement to do so is void. As already noted, the trial judge did not consider this defense because the appellants had not petitioned the court to vacate the award within the time prescribed by the Maryland Uniform Arbitration Act. In his oral opinion, the trial judge indicated that the appellants had slept on their rights. We think they have not only slept on their rights, but have made the bed in which they slept.

Ill

Here the appellants, presumably with legal advice, voluntarily agreed to all the provisions of the Agreement, including the provision to submit to arbitration any unresolved grievance of any certificated professional employee of the Board. “The parties further agree[d] to accept the arbitrator’s award as final and binding upon them” (see Article II of the Agreement). The record reflects that the Board through the Superintendent and his staff participated fully in the arbitration proceedings by which they agreed to be bound. Maryland Rule E2 provides the procedure to be followed by the parties after a final written award has been made by the arbitrator:

“After a final award has been made in writing in an arbitration to which the Maryland Uniform Arbitration Act is inapplicable, court proceedings may be had to confirm, vacate, modify, correct, or enter judgment on the award. In any such case, the provisions of the Maryland Uniform Arbitration Act concerning such proceedings shall be applicable.”

The appellants took no action to vacate the award within the time limit provided by the Maryland Uniform Arbitration Act. The record reveals no reason whatever for their not doing so. Section 3-227 of the Act provides:

“§ 3-227. Confirmation of award by court.
(a) Petition. — A party may petition the court to confirm the award.
(b) Action by court. — The court shall confirm the award, unless the other party has filed an application to vacate, modify, or correct the award within the time provided in §§ 3-222 and 3-223.
(c) Proceedings when award not confirmed. — If an application to vacate, modify, or correct the award has been filed, the court shall proceed as provided in §§ 3-223 and 3-224.”

Although this section was the sole basis for the trial court’s order confirming the arbitration award, the appellants do not even mention the section in their brief. There can be no question that the provisions of the section are mandatory. (“The court shall confirm the award, unless____” (emphasis added)). If the appellants claim, as they impliedly do, that the trial court is not bound by the literal command of the section (regardless of what grounds they now advance for not confirming the arbitration award), it was their duty to at least argue the point or cite some authority for the proposition that it is not applicable to this case. This the appellants have not done. Instead, they have chosen to ignore the section altogether and to argue only the merits of their defense.

In our view, the primary issue presented in this appeal is not whether the appellants have presented valid grounds for non-confirmation of the award but rather whether they can be heard to present those grounds at the time they sought to do so, in the face of the mandatory provisions of § 3-227 of the Maryland Uniform Arbitration Act. Having been presented with no argument or authority for not giving full effect to these mandatory provisions, and being unaware of any reason for not doing so under the circumstances presented, we hold that the trial court was correct in obeying the command of the section. See Nick-George Ltd. v. Ames-Ennis, Inc., 279 Md. 385, 368 A. 2d 1001 (1977) and Security Construction Co. v. Maietta, 25 Md. App. 303, 334 A. 2d 133 (1975). Consequently, we do not reach the merits of appellants’ defense to the petition for confirmation.

Judgment affirmed.

Costs to be paid by appellants.

      . Article 77 was repealed by Acts 1978, ch. 22, § 1, effective July 1,1978, and replaced by the Education Article of the Code (1978), with no substantive changes to those portions of former Article 77 that are pertinent to this appeal.

      . A “grievance” is defined in the Agreement as “a claim in writing that there has been a violation, misinterpretation, or misapplication of the terms of this agreement”.

      . Section 61 of Article 77 provided:
      “The county superintendent of schools shall approve, in writing, all contracts of whatever kind entered into by the county board of education, and no contract entered into by the county board of education shall be valid without the written approval of the county superintendent of schools”.

      . Although § 3-206 of the Md. Uniform Arbitration Act provides that the Act, enacted m Maryland in 1965, “does not apply to an arbitration agreement between employers and employees ... unless it is expressly [so] provided in the agreement...”, Md. Rule E2, adopted in 1967, provides that where court proceedings are “had to confirm, vacate, modify, correct, or enter judgment on the award”, the provisions of the Act “concerning such proceedings shall be applicable” even though the Act is otherwise inapplicable.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    DONALD ELBERT BERRY v. STATE OF MARYLAND
    [No. 445,
    September Term, 1978.]

      Decided March 7, 1979.

    The cause was submitted on briefs to Moore, Lowe and WlLNER, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Malloy, Assistant Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Ray E. Stokes, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Robert Moss, Assistant State’s Attorney for Baltimore City, for appellee.
   Moore, J.,

delivered the opinion of the Court.

On March 7, 1973, Donald E. Berry, the appellant, was convicted on a guilty plea in the Criminal Court of Baltimore (Cardin, J.) of nonsupport of his wife and two children pursuant to Article 27, Section 88 of the Annotated Code of Maryland (Supp. 1978). He was sentenced to the custody of the Division of Correction for an eighteen-month period. However, the sentence was suspended and the appellant was placed on probation on the condition he make support payments as directed by the court. Commencing on March 7, 1973, the probationary period was to run for three years.

Appellant encountered difficulty satisfying the support obligations and, therefore, was deemed in violation of his probation. On March 4, 1976, three days prior to the expiration of the probationary period, a warrant was issued for his arrest. A hearing was held with respect to this alleged violation in the Criminal Court of Baltimore (Hammerman, J.) on June 5, 1978, over two years after the expiration of the probationary period. The trial delay, was attributable to pending criminal charges that resulted in several postponements of the revocation proceeding. At the hearing, the court revoked appellant’s probation and reimposed the eighteen-month sentence, to be served consecutive to a sentence appellant was serving for an unrelated offense. On appeal, the appellant contends that: 1) the trial court was in error when it permitted appellant to waive counsel without conducting the waiver inquiry required by Maryland Rule 723 (c); 2) the trial court was without jurisdiction to revoke appellant’s probation pursuant to Article 27, Section 88 (a)-(b) because the three-year probationary period had expired at the time of the hearing; and 3) his original conviction was unconstitutional because Section 88 (a) had been declared to be violative of the Equal Rights Amendment to the Maryland Constitution and, therefore, the original sentence could not be reimposed.

I

Rule 723 (c), effective July 1, 1977, is mandatory and governs the “provision for or waiver of counsel” at a defendant’s initial appearance in a proceeding. It reads as follows:

“c. Waiver Inquiry.
When a defendant indicates a desire or inclination to waive counsel, the court may not accept the waiver until it determines, after appropriate questioning on the record in open court, that the defendant possesses the intelligence and capacity to appreciate the consequences of his decision, and fully comprehends:
1. The nature of the charges against him, any lesser included offenses, and the range of allowable penalties, including mandatory and minimum penalties, if any;
2. That counsel can render important assistance to him in determining whether there may be defenses to the charges or circumstances in mitigation thereof, and in preparing for and representing him at trial;
3. That even if the defendant intends to plead guilty, counsel may be of substantial assistance in developing and presenting information which could affect the sentence or other disposition;
4. That if the defendant is found to be financially unable to retain private counsel, the Public Defender or the court would, if the defendant wishes, provide counsel to represent him.”

In Bryan v. State, 39 Md. App. 250, 384 A. 2d 479 (1978), we held that, pursuant to Maryland Rule 723 (d) (2), the procedure directed by Maryland Rule 723 (c) was applicable whenever an accused appeared in court without counsel “ ‘at any proceeding after his appearance pursuant to Section [723 (a)],’ ” and that this included probation revocation proceedings. Id. at 254-55. The Court of Appeals recently affirmed the holding of the Bryan case. 395 A. 2d 475 (1978).

The record before us indicates that at the probation revocation hearing the following colloquy occurred between the court and the appellant:

“THE CLERK: Your Honor, we will hold the warrant pursuant to the other trial. Now, Mr. Berry, this is a criminal proceeding. You would have a right to have a lawyer represent you in this case or you can proceed without one, sir. What is your wish in that respect?
MR. BERRY: Proceed without one.
THE CLERK: Proceed without one.'You also have a right to enter a plea of guilty or not guilty for failing to make the payments through the Probation Department. What is your plea?
MR. BERRY: Not guilty.
THE CLERK: Not guilty. All parties raise your right hands.”

It is very apparent that the lower court, in its cursory questioning of appellant, failed to comply with the mandatory standards of Rule 723 (c). This constituted error and we would ordinarily reverse the judgment, vacate the sentence, and remand the case for further proceedings. However, for the reasons set forth in our consideration of appellant’s second assignment of error, we find there must be a reversal without remand.

II

Appellant contends that the lower court lacked jurisdiction to hear the revocation proceeding because of the following language in both subsections (a) and (b) of Article 27, Section 88:

“If the court be satisfied by information and due proof under oath, at any time during the three years, that the defendant has violated the terms of the order [of probation], the court immediately may proceed to the trial of the defendant under the original indictment or sentence him or her under the original conviction, as the case may be.” (Emphasis added.)

According to appellant, the underscored phrase mandates that the probation revocation hearing be held before the expiration of the probationary period. The State, in disagreement, asserts that the provision refers to the petition-initiating process and, therefore, that the period was tolled on March 4,1976, within the probationary period, when the Probation Department filed a Violation of Probation Petition and the arrest warrant was issued charging appellant with nonsupport. To construe section 88 so as to require the probation revocation hearing within the three-year period would, the State contends, constitute an unreasonable and illogical interpretation of the statute. We conclude that appellant’s contention must prevail.

The statute involved here is not a civil limitations statute but is in a sense jurisdictional in that it places a limit upon the time when the court may proceed against a defendant who has been placed on probation. That which must satisfy the court “during the three years” is the presentation to it of “information and due proof,” not the filing of an action as in Md. [Cts. & Jud. Proc.] Code Ann. § 5-101 (1974), or the commencement of an action as under former Art. 57, § 1. The latter are as stated in Neel v. Webb Fly Screen Mfg. Co., 187 Md. 34, 37, 48 A. 2d 331 (1946), the “impetration of the original writ”; however, to satisfy the court with “information and due proof” clearly speaks to the trial itself, not to the petition of the probation department to revoke.

If the result of clear language in a statute is unreasonable and illogical, that is a legislative concern. We must not, and cannot, “enlarge, modify or restrict the plain language and terms of a statute to meet the exigencies of a particular case.” Cummings v. Wildman, 116 Md. 307, 315, 81 A. 610 (1911). Neither the form of the statute, nor its plain words, expresses the intention that the State would assume and we are proscribed from inserting words not in the original statute, Celanese Corporation v. Davis, 186 Md. 463, 470-71, 47 A. 2d 379 (1946); even if the words were apparently omitted through inadvertence, we must hold that the omission was intentional. Rogan v. Baltimore and Ohio Railroad, 188 Md. 44, 54, 52 A. 2d 261 (1947).

“[C]ourts must be governed by the intention of the Legislature if that can be ascertained from the statute,... and cannot legislate for it simply because they think it ought to have said something else.” Bartlett v. Ligon, 135 Md. 620, 627, 109 A. 473 (1920). We are not “at liberty to surmise a legislative intent contrary to the letter of the statute or to indulge in license of inserting or omitting words [or rearranging phrases] with the object of making the statute express an intent which is not evidenced in the original form----Interpolation of words, in order to make a statute include matters which the Legislature did not expressly include, invades the function of the Legislature.” Bosley v. Dorsey, 191 Md. 229, 237, 60 A. 2d 691 (1948). Furthermore, this is a quasi criminal statute, and we have noted especially our reluctance to extend the scope of criminal statutes “to cases not plainly within the language used.” State v. Page, 163 Md. 505, 513, 163 A. 493 (1932).

A petition for revocation is certainly not “information and due proof” and it is the latter only that, if presented to the court “during the three years,” permits it to “proceed to trial ... or sentence” the appellant. If that is unreasonable and illogical, the fault is not ours, nor is the ability to correct it. If the Legislature had intended it otherwise, “it could have said so plainly.” Cf. Neel, supra, at 42.

Ill

Appellant’s last issue on appeal, raised in his Reply Brief, is that the lower court erred in reimposing his original sentence because section 88 (a) was held unconstitutional by this Court in Coleman v. State, 37 Md. App. 322, 377 A. 2d 553 (1977). This issue was not raised nor considered by the trial court and is not properly before us. Md. Rule 1085. At the same time, we observe that appellant was also charged and convicted under section 88 (b) which remains unaffected by Coleman.

Judgment reversed and sentence vacated; costs to be paid by the Mayor and City Council of Baltimore.

      . Rule 723 (d) (2) states:
      “If the defendant appears in court without counsel, at any proceeding after his appearance pursuant to section a of this Rule, the court may not proceed before determining whether the defendant at that time desires to waive counsel, or has waived counsel, either affirmatively or by neglecting or refusing to obtain counsel.”


author: Liss, J.,

text:
    FREDERICK JEROME HUTCHINSON v. STATE OF MARYLAND
    [No. 580,
    September Term, 1978.]

      Decided March 7, 1979.

      The cause was submitted on briefs to Thompson, Liss and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Alice G. Pinderhughes, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Harvey Greenberg, Assistant State’s Attorney for Baltimore City, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On April 5, 1978, Frederick Jerome Hutchinson, the appellant, was convicted in the Criminal Court of Baltimore of second degree rape. On May 4, 1978, he was committed to the custody of the Division of Correction for a period of twenty years. On appeal he contends:

1. the court erred in refusing to join separate charges placed against him.
2. the State prejudiced the appellant’s defense by virtue of its cross-examination of the appellant’s ' witnesses and its closing argument.
3. the court erred in not granting a missing witness instruction.
4. the court erred in its additional instructions to the jury concerning the possible verdicts.

The twenty-year-old prosecuting witness testified that on the night of September 13, 1977, she was baby sitting at the house of a friend of her mother when the appellant, who had been going with her sister, unexpectedly came by. She said that the appellant accused her of upsetting his relations with the woman with whom he was living and threatened her. As a result of the threats and to insure the safety of the children who were asleep, she said she did not resist his sexual advances. The next morning the prosecuting witness told her boyfriend and later that day reported to the police that the appellant had raped her. Subsequently her sister Cheryl reported to the police that the appellant had forced her to engage in oral sex with him a few days previously.

On cross-examination the prosecuting witness denied having previously had sexual relations with the appellant. In presenting a defense of consent, the appellant introduced evidence that the prosecuting witness had had sexual relations with him during the summer. In addition, Hester Seldon, the woman with whom the appellant purportedly lived, testified that she had received telephone calls, which greatly upset her, from both the prosecuting witness and Cheryl.

1. Refusal to Join Offenses

The appellant had been charged with offenses against both the prosecuting witness and against Cheryl. Prior to trial the appellant moved to have both cases against him joined for trial on the grounds that they arose from a conspiracy by the two sisters against him. The following colloquy then occurred:

“THE COURT: Mr. Greenberg, do you want to respond to that?
MR. GREENBERG: Just this, Your Honor, there are a few rights the State has, but one of them is to call whatever cases are on the docket or not to call. The State elects not to call the case of State Versus Cheryl Hooks at this time and just chooses to call the case of State Versus Wanda Briggs. I don’t think the State can be compelled to call the other case.
THE COURT: I agree with you. The motion is denied.”

The appellant himself then addressed the court and pleaded to have the charges consolidated. In repeating its denial the court said:

“I understand you might not have wanted to have done that, but you would have had a right to severance because they would have been improperly joined, and, as I said, I cannot compel them, to join two cases where, if they were joined, the joinder would be improper, and, accordingly, I will deny your motion.”

On appeal the appellant contends that the court abused its discretion by not making an inquiry to determine if a joint trial was feasible. We note that Maryland Rule 745 b states:

“If a defendant has been charged in two or more charging documents, either party may move for a joint trial of the charges. In ruling on the motion, the court shall inquire into reasons for the motion and the ability of either party to proceed at a joint trial.”

While the question generally arises in the context of a request by a defendant for a severance, the same principles apply whether the request is for joinder or severance.

In the instant case we consider that the court should have conducted an inquiry into the appellant’s request and it was error not to do so. Since the State has nol prossed the case involving Cheryl, the issue is now moot and amounts to harmless error.

2. Prosecutorial Misconduct

The appellant launches a two prong attack against the prosecutorial conduct. First he asserts that the State improperly commented, during opening and closing argument, on the fact the accused would not and did not testify. Secondly he complains that the State elicited improper testimony during the cross-examination of two of the appellant’s witnesses.

While it is improper for the State to comment on a defendant’s failure to testify, this does not mean that every neutral or indirect reference that the State makes which implicitly refers to a defendant’s silence is improper comment. In Grace v. State, 6 Md. App. 520, 522, 252 A. 2d 297, 299 (1969), we stated:

“. . . the rule does not apply, where, as here, the thrust of the remark is directed toward the lack of evidence rather than pointed directly at the failure of the accused to testify.”

In this case the comment during opening and closing argument was directed toward the lack of potential evidence and not at the appellant’s election not to testify. The State merely called the jury’s attention to the relevant importance of eyewitness’ testimony over that of other witnesses. Accordingly we find no misconduct in the State’s comments.

Brown, a co-worker of the appellant, testified to a different version of the appellant’s relationship with the prosecuting witness than had been presented by the prosecuting witness. As to be expected, the State then attempted to impeach Brown’s testimony by first eliciting from Brown a statement that the appellant was a good friend. Next the State asked whether Brown and the appellant had worked together stealing parts from their employer. Brown denied the accusation but did admit to participating in activities that the jury could have reasonably interpreted as involving the illegal sale of stolen parts.

Lee Headspeath also testified for the appellant and stated he had known the appellant since 1967. He also admitted that he had been incarcerated for nine years for a conviction of robbery with a deadly weapon. In the course of cross-examination of Headspeath, the State elicited testimony that the appellant had been incarcerated with Headspeath at the Maryland Penitentiary from 1971 through 1975.

In Bryant v. State, 4 Md. App. 572, 580, 244 A. 2d 446, 451 (1968), we said:

“The general rule is that a witness may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relationship to the parties or cause, his bias or the like.”

In the instant case, the complained of questions tended to show the witnesses’ relationship to and possible bias toward the appellant. As such they were the proper subject for cross-examination.

3. Missing Witness Instruction

After the conclusion of the presentation of evidence, the appellant requested that a missing witness instruction be given to the jury regarding the prosecuting witness’ sister Cheryl. The court denied the request.

In ruling on the appellant’s request for a missing witness instruction the court said:

“No one has made any effort to get her here. No one has made any effort to take her deposition. I think her absence is being made an issue when it is really not warranted. If anyone really wanted her, she could have been here or her testimony could have been, so I won’t allow any of that.”

The missing witness rule provides that where a party fails to call an available material witness, a presumption arises that the testimony of such person would be unfavorable to the party failing to call that witness. In this case the witness was equally available to either side but no efforts were made by either side to secure her presence. Accordingly we find no error in the court’s refusal to grant a missing witness instruction.

4. Court Instructions Regarding Verdict

The appellant complains that the court did not advise the jury that they could find him not guilty. In reviewing the instructions to the jury, we note that the court said:

“You should not assume that the defendant is guilty merely because he is being prosecuted, because charges have been preferred against him. The burden of proof is on the State to prove every element of the crime charged against the defendant, and the defendant is presumed innocent until proved guilty beyond a reasonable doubt. That presumption attends the defendant throughout the trial until or unless overcome by proof establishing his guilt beyond a reasonable doubt and to a moral certainty.
“While the burden is upon the State of establishing every fact material to the guilt of the defendant, including every circumstance that enters into the crime charged, beyond a reasonable doubt, that does not mean that the State must prove the defendant guilty to an absolute or mathematical certainty. It means such evidence that you would act upon in a matter involving important affairs in your life, or your business, or with regard to your property. If the evidence is such that you would act upon it in a very important matter in your own lives, then it is sufficient to convict in a criminal case.
“Evidence is sufficient to remove a reasonable doubt when it convinces the judgment of an ordinarily prudent individual of the truth of the proposition with such force that he or she would act upon that conviction in his own or her own important affairs.”

Thereafter the court instructed the jury:

“The Court will provide you with a verdict sheet to facilitate your rendering a verdict, and, if you wish, the exhibits you may take them with you as you go into the jury room.
“You may now retire to deliberate your verdicts.
“Ladies and gentlemen, one moment. Now, the verdict sheet which I will be giving you will show two possible verdicts, Count One guilty of rape in the first degree and Count Two guilty of rape in the second degree. You can only — If you find the defendant not guilty of rape in the first degree, then you consider rape in the second degree. If you find the defendant guilty of rape in the first degree, then, of course, you need not consider rape in the second degree.” (Emphasis supplied)

The verdict sheet listed three possible verdicts: (1) Guilty Rape in the first degree; (2) Not Guilty Rape in the first degree, Guilty Rape in the second degree; (3) Not Guilty.

During the course of the jury’s deliberations it sent out a question asking for clarification of the difference between Rape in the first degree and Rape in the second degree. The trial judge gave an additional instruction based on the language of the statute explaining the difference between the two statutes. At no point in the additional instructions was the possibility of a Not Guilty verdict mentioned by the trial court. Subsequently the jury returned a verdict of Guilty of second degree rape. The fact that there was some confusion regarding the furnishing of the verdict sheet to the jury is evidenced by the incorrect statement of the trial judge that the verdict sheet contained two possible verdicts: Guilty of first degree Rape or Not Guilty of first degree Rape-Guilty of second degree Rape. This confusion was later compounded as evidenced by the disposition hearing when the matter was called to the trial court’s attention in the following colloquy:

“THE DEFENDANT: Your Honor, on the date that the jury retired, you know, after your instructions, you instructed the jury that they could find me guilty of first degree rape or second degree rape. You never said anything whatsoever insofar as the instructions that they could find me not guilty. Now, I don’t know what happened, but that man there, [the bailiff] — I spoke to him after the jury had retired in the hallway, and I spoke with him, I wanted to straighten that out, and he told me that there was a slip of paper that said not guilty in there that the jury had.
“THE COURT: That’s correct.
“THE DEFENDANT: But it has been my experience, and I’m quite sure the record will reflect — I also spoke with this man here from the Sheriffs Office —■ that it was, you know — Well, I can’t tell you your duties but, you know, in fairness — in fairness to the defendant I think you should have told the jury they could have found me guilty of first degree, second degree or, if in fact they believed there was an ulterior motive, like my attorney was trying to show, that they could find me not guilty.
“THE COURT: Mr. Hutchinson, first of all, I will not disagree with you at this time, but the transcript will show they were told and they were also given a written verdict sheet. They were told in the beginning of the instructions that in order to find you guilty they must find you guilty beyond a reasonable doubt and to a moral certainty; that if they have such a reasonable doubt, they must find you not guilty. That is repeated throughout the instructions, and it is culminated by the verdict sheet which has not guilty on it. (Emphasis added.)

In our reading of the instructions we do not find that the trial court ever told the jury that if “they have such a reasonable doubt they must find you not guilty.”

The public defender on appeal argued that the repeated emphasis of the possible guilty verdicts without mention of the possibility of a not guilty verdict prejudiced the appellant’s right to a fair trial.

The state’s attorney and assistant attorney general, on appeal, were also confused. Their brief states “that the trial judge advised the jury concerning the two verdicts on the verdict sheet.” They seek to avoid the result of the confusion by suggesting that we must examine the instructions in the light of the fact that no objection was made in the court below nor was any curative instruction requested. They suggest that since we must consider the instructions in their entirety, no prejudice occurred when the entire instructions are considered. The cite as authority for these positions Dimery v. State, 274 Md. 661, 338 A. 2d 56 (1975). See also Cranford v. State, 36 Md. App. 393, 373 A. 2d 984 (1977).

We were also confused by the trial judge’s statement to the jury that the verdict sheet contained two possible verdicts. In the original opinion in this case, subsequently withdrawn, we stated erroneously that the possibility of a not guilty verdict was not included on the verdict sheet furnished to the jury and considered this as one of the elements which required the granting of a new trial. Subsequent examination disclosed the fact that the not guilty verdict was included on the verdict sheet. We must at this point determine whether we will exercise the discretion reserved for us by Rule 757 h to take notice of plain error materially affecting the rights of the accused. If we find such plain error, the failure of counsel below to object is not controlling. After careful consideration we have reached the conclusion that the erroneous statement by the trial court, as to what was included on the verdict sheet, combined with the failure • of the trial court to specifically state to the jury their duty to return a verdict of not guilty if they should not find him guilty of any of the charges beyond a reasonable doubt amounted to plain error and materially affected the rights of the accused. Williams v. State, 34 Md. App. 206, 211, 366 A. 2d 399 (1976). (Moylan, J., concurring).

In our reading of the record of this case we are convinced that the error may have contributed to the guilty verdict returned against the appellant. We, therefore, to exercise our discretion and in the interest of justice grant the appellant a new trial. Md. Rule 757 h.

Judgment reversed, new trial granted.

Costs to be paid by Mayor and City Council of Baltiinore.

      . The propriety of that type of examination has not been made an issue. We do not consider it.