text:
    ALBERT E. ENTZIAN et al. v. PRINCE GEORGE’S COUNTY, MARYLAND et al.
    [No. 1282,
    September Term, 1975.]

      Decided July 1, 1976.

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

      Jess James Smith, with whom were Burroughs & Smith on the brief, for appellants.

      Barbara J. Lampe, Associate County Attorney, and Ellis J. Koch, Deputy County Attorney, with whom was James C. Chapin, County Attorney, on the brief, for appellee Prince George’s County, Maryland. Submitted on brief by Frank M. Kratovil and Charles M. Cockerill for other appellee.
   Lowe, J.,

delivered the opinion of the Court.

Parties to zoning cases are provided with more attention than are the parties in most other forms of litigation. Although there are slight variations in the several counties, generally a zoning application proceeding begins with an administrative hearing where the applicant and those opposed to the application may appear and offer testimony and other evidence. The hearing officer may utilize available county or municipal investigative sources (e.g., technical staff reports of planning commissions) for additional fact gathering. The hearing officer then renders a decision based on the evidence elicited at the hearing. This decision, while not conclusive, is often persuasive to the quasi-judicial body which makes the ultimate decision as to whether to approve the application. This body may be a board or commission which has been statutorily provided for that single purpose, or, it may be the governing legislative body of the county which has been authorized to sit in such quasi-judicial capacity to decide zoning matters.

The County Council of Prince George’s County convenes in matters of zoning as the “District Council.” An appeal of right from the Council’s decision is provided to the Circuit Court for Prince George’s County and, from there, to this Court. The Council’s decision is not to be overturned if it is supported by competent, material and substantial evidence in the record. If the issue is fairly debatable as shown by the record, the Council’s decision will be affirmed. Prince George’s Co. v. Meininger, 264 Md. 148, 152; Wakefield v. Kraft, 202 Md. 136. This test applies to applications for a zoning change as well as a special exception. Zengerle v. Bd. of Co. Comm’rs, 262 Md. 1, 17. Our role on review is the same as that of the circuit court looking to the legality of the procedure and whether fairly debatable issues were raised by the evidence.

Appellants applied for a special exception for a sanitary landfill in Prince George’s County at a location near the Patuxent River. It was denied. After a thorough review of the evidence, the District Council, in a comprehensive opinion, concluded:

“That the proposed use is not in harmony with the purpose and intent of the Zoning Ordinance; and will substantially impair the integrity of the approved master plan for this area, including the functional plan for this activity; and the proposed use would affect adversely the health and safety of residents in the area and would be detrimental to the use and/or development of adjacent properties or the general neighborhood.”

An appeal was noted in the Circuit Court for Prince George’s County wherein appellants contended substantially that which they argue here. The trial judge, the Honorable Ralph W. Powers, wrote an opinion concisely responding to the appellants’ contentions and, after correctly stating the burden of proof and standard of review in such cases, affirmed the District Council. We adopt Judge Powers’ opinion as our own and, because it so clearly articulates the facts and issues here presented, we repeat it before further comment.

“OPINION AND ORDER
This case comes before the Court on appeal from a ruling by the County Council of Prince George’s County sitting as the District Council. The statutory basis for this appeal is provided by Maryland Rule B1 in conjunction with the special authorization granted by Section 79(e), (f), (k), Chapter 780, Laws of the State of Maryland, 1959, as amended.
This appeal concerns a denial by the District Council of a special exception application by The International Disposal Corporation of Maryland, Inc., and others, (hereinafter referred to collectively as ‘International’).
The proceedings involved an application to use 268.80 acres (later amended to 180 acres) as a sanitary landfill, a use for which special exceptions may be granted. §28.31 ‘Special Exceptions', Zoning Ordinance for the Maryland-Washington Regional District in Prince George’s County, Maryland.
Section 28.334A, Zoning Ordinance, empowers the District Council to grant a temporary special exception for a sanitary landfill in any O-S, R-A, or R-R Zone. The tract of land involved is on the east side of Mill Branch Road, just north of its intersection with Queen Anne Road in Prince George’s County, and is zoned R-R.
After public hearings on the matter, the District Council, on April 28, 1975, disapproved the application for special exception. International timely appealed this action asking that this Court reverse the Decision of the District Council avering that the action of the District Council was: (1) in violation of constitutional provision; (2) in excess of the statutory authority or jurisdiction of the agency; (3) or made upon unlawful procedure; (4) or affected by other error of law; (5) or unsupported by competent, material and substantial evidence in view of the entire record as submitted; (6) or arbitrary or capricious. These six allegations of error are those which allow the Circuit Court to reverse, modify, or remand a decision of the District Council. §79(i), Chapter 780.
The scope of review by this Court of the administrative decision of the District Council is governed by statute. There must be substantial evidence on the entire record such that the decision rendered by the District Council was not arbitrary or capricious. §79(i) (5) (6), Chapter 780. This is the typical standard of review the courts employ in reviewing denials of special exception applications. See Rockville Fuel and Feed Company, Inc. v. Board of Appeals of the City of Gaithersburg, 257 Md. 183. (1970)
The District Council pursuant to its delegated authority granted by the General Assembly of Maryland, (Chapter 780), has by ordinance determined that special enumerated uses can be properly allowed in a specific use district. §28.31 through 28.359, ‘Special Exceptions’, Zoning Ordinance, supra. There is a presumption of validity and correctness that the enumerated special exception uses promote the general welfare. .Rockville Fuel, supra.
A special exception application passes through three administrative levels before reaching the District Council. These are in chronological order: The Technical Staff of the Prince George’s County Planning Board, the Prince George’s County Planning Board, and the Office of the Zoning Hearing Examiner. The Technical Staff is required to make a report and recommendation for the record on each application for special exceptions. Zoning Ordinance, supra, §28.111. The County Planning Board, among its exclusive local functions, is responsible for either adopting or not adopting the recommendations of the Technical Staff, and forwarding this to the District Council. Chapter 780, §66.
Before the District Council can make a decision on a special exception application, the Zoning Hearing Examiner is required to hold public hearings on the matter. Zoning Ordinance, supra, §28.12, §31A.1 - 31A.49. At the conclusion of the hearings, the Examiner must file with the District Council a written decision containing specific findings of basic facts, conclusions of law and a recommended disposition of the case. Ordinance, supra, §31A.22. His decision is then considered by the District Council. Ordinance, supra, §31.A.3.
The standard the District Council must use in determining whether to approve a special exception application, thus restricting their discretionary scope, is governed by ordinance.
‘28.2 General Provisions
A special exception may be granted when the Council finds that:
(a) The proposed use is in harmony with the purpose and intent of the Zoning Ordinance and will not substantially impair the integrity of any validly approved master plan or functional master plan, or in the absence of a master plan or functional master plan, the General Plan (Amended 10/29/74).
(b) The proposed use will not affect adversely the health and safety of residents or workers in the area and will not be detrimental to the use and/or development of adjacent properties or the general neighborhood.’ Ordinance, supra, §28.2
In accord with Rockville Fuel, supra, then, the burden was on the applicant to demonstrate to the Council that the proposed use will not: (1) substantially impair any master, functional master or general plan; (2) adversely affect the health and safety of the area residents and workers; (3) or be detrimental to the use and/or development of the adjacent properties or the general neighborhood. Since these predetermined enumerated uses are prima facie in the interest of the general welfare, there is no burden on the part of the applicant to show affirmatively that the requested use will benefit the community at large. Rockville Fuel, supra.
International’s argument on the adequacy of the evidence on the record centers around the three-prong test the Council must consider under §28.2. Ordinance, supra. International proffers that there was no showing that a comprehensive plan would be impaired [§28.2(a)]; that there was not substantial evidence demonstrating that the landfill would adversely affect the health and safety of area residents or workers, or that the landfill would be detrimental to the use and/or development of adjacent properties or the general neighborhood. [§28.2(b)l]. Concerning the last point, International maintains that the boundary of the ‘general neighborhood’ was never defined so as to permit a factual finding of detrimental effect.
The District Council has not adopted any rules of evidence to apply in its public hearings. We revert to case law which applies the general standard applicable to administrative bodies:
‘In general, administrative agencies are not bound by the technical common-law rules of evidence, but they must observe the basic rules of fairness as to the parties appearing before them.’ Dal Maso v. Board of County Commissioners of Prince George’s County, 238 Md. 333, p. 337. (1964). Followed in Dickinson-Tidewater, Inc., et al v. Supervisor of Assessments of Anne Arundel County, 273 Md. 245. (1974).
While zoning agency bodies then are not bound by strict rules of evidence, their decisions must be supported by substantial evidence on the record. Rockville Fuel, supra. ‘Zoning is not a plebiscite’ and therefore testimony in opposition restricted solely to lay witnesses, petitions of objection to the proposal by residents, and testimony amounting to unsupported dislike and fear of (a) project, ‘... amounted to no evidence at all.’ Rockville Fuel, supra, pps. 192 and 193. There is ample evidence in the record to support the decision of the District Council here. The Technical Staff and the Planning Board both recommended disapproval of the application (Ex. 95) based largely on the impact of the proposed site on the adjacent Patuxent Watershed. (See Patuxent River Watershed Committee Report, Ex. 95). The Technical Report is by statute, part of the record. Zoning Ordinance, supra, §28.11 [1].
The General Assembly of Maryland has declared that ‘the policy of the State is to protect the water quality of the State scenic rivers system, (of which the Patuxent is a part) and fulfill vital conservation purposes by wise use or resources within this scenic river system.’ Annotated Code of Maryland, Natural Resources, 8-401, 8-402(a). Development of these rivers are limited to those ‘programs by which the general public can appreciate and enjoy the value of these areas as scenic rivers in a setting of natural solitude.’ Natural Resources, supra, 8-402(b).
‘Before specific plans for use and development of water and related land resources are approved .. . which change the character of a river or waterway or destroy its scenic value, full consideration and evaluation of the river as a scenic resource shall be given.’ Natural Resources, supra, §8-405.
Finally, ‘Every State unit shall recognize the intent of the scenic rivers program and take whatever action is necessary to protect and enhance the scenic qualities of the designated river.’ Natural Resources, supra, §8-407.
To effectuate the State policy of the Scenic River Act in Prince George’s County, the Patuxent River Watershed was created. Natural Resources, supra, Subtitle 13, §8-1301 — 8-1319. The General Assembly declared that:
‘(F)lood prevention, conservation, sediment or erosion protection and prevention of urban development within the watershed is a public benefit and conducive to the public health, safety and welfare.’ Natural Resources, supra, §8-1302.
In Prince George’s County, the Maryland-National Capital Park and Planning Commission (Commission) is the duly designated agency to carry out the provisions of the Patuxent River Watershed Act. Natural Resources, §8-1301(b), §8-1304. The Commission may adopt, amend, or extend the watershed plan (Natural Resources, supra, §8-1305) and acquire, improve, and develop land or other property within the watershed. Natural Resources, supra, §8-1307. At the time application 2799 was pending, the Commission had acquired approximately 5,000 acres of a projected 15,000 acre watershed park, spending over three million dollars in public funds. See Council Decision, p. 7; and Technical Staff Report, p. 10, Ex. 95. In addition, the Commission may acquire lands outside of the area of the watershed plan if it finds:
‘(T)hat acquisition is necessary to preserve any portion of the watershed plan in its county.’ Natural Resources, supra, §8-1309.
The proposed landfill originally contained 207.19 acres, some within the park-take line. The amended application reduced the landfill site to 180 acres, none of which was within the park-take line, but some of which adjoined this line. In conjunction with the State policy embodied in the Scenic Rivers and Patuxent River Watershed Acts, in light of the evidentiary rules applicable to this administrative body, the Technical Staff, and Planning Board could properly consider the recommendations of the Patuxent River Watershed Committee Report.
The amendment to the application did not alter the conclusions reached by the earlier recommendation of the Watershed Committee, as incorporated in the Technical Staff Report. (Ex. 95). It is apparent from the record that the general neighborhood included the nearby Patuxent River, and the adjoining proposed park area. The Council then properly accepted as material evidence the following:
That the proposed landfill abutting a natural park area is an inappropriate use and is not in conformance with the Patuxent River Watershed Act nor the Maryland Scenic Rivers Bill;
That because of noise, loss of food and habital area, wildlife, both on and off the landfill site, would be severely endangered;
That the landfill would affect the deep ravines on the proposed site, which slope down to the river, by causing destruction to both surface and ground water systems, and cause severe erosion problems;
That ‘the County Department of Health concluded that no matter how well operated, most landfills will produce sediment and leachate that will not always be contained on site. The ravines on the subject property lead directly into the Patuxent River thus causing a real threat of water pollution to the Patuxent.’ See Council Decision, p. 7, and Technical Staff Reports, Ex. 95.
The Council also considered the observation by the Watershed Committee that, at that time, for the past three years, many existing sanitary landfills within the Patuxent Watershed, despite foolproof design, had on a daily basis violated one or more regulations and conditions of the permit grant.
There was sufficient evidence before the Council to determine the proposed site would adversely affect the environment of the neighboring park, including the wildlife marsh lands, and the Patuxent River.
In addition to finding that the proposed landfill would be detrimental to the general neighborhood, the Council concluded that there was no compliance with the Bowie-Collington and Vicinity Master Plan (adopted October 1970), and that adjacent property owners would have been detrimentally affected in the use and the development of their property. Council Decision, p. 7. The Bowie-Collington and Vicinity Master Plan (referred to in parts by all parties, the hearing examiner, the technical staff, and the Council, yet not marked as an exhibit), recommended that the land in the proposed site be used for the Patuxent River Park and low-density housing.
The Bowie-Collington and Vicinity Master Plan in addition to proposing that the area in which the landfill site was located be a permanent low-density area, states that the preservation policies attaching to this land includes the enforcement of the Patuxent River Act. See p. 12, Bowie-Collington- and Vicinity Approved Master Plan, October 1970. In accord with the Technical Staff Report, the Council apparently found that the applicant did not demonstrate that the proposal would not violate the Master Plan intention. Technical Staff Report, pps. 6-10.
Finally, the Council found that there would be an adverse affect on the property values of adjoining landowners, Kidwell, Wolman, and Battner, due to noise, water' and air pollution. Council Decision, pps. 5, 6. Hie Council found further that the Kidwell and Samareis land tracts would become sandwiched between an existing County landfill site and the proposed landfill. Council Decision, p. 7.
There were no constitution or statutory violations and there was sufficient evidence in.support of the Decision of the District Council.
It is therefore, this 3rd day of November, 1975,
ORDERED, that the Decision of the District Council in denying Application No. 2799, be and hereby is, affirmed.”

Appellants’ argument in their appeal to this Court consists primarily of a repetition of their argument below, coupled with an attack on the opinion of Judge Powers. Of the six issues they have raised in their brief, we will respond only to those not answered by Judge Powers.

Their first complaint is that they were denied due process because their application was considered by the Maryland-National Capital Park and Planning Commission in spite of the fact that there is no statutory requirement for such consideration. Both the report of the Technical Staff of the Commission and the Commission’s Planning Board recommended disapproval of appellants’ application. As may be seen by the District Council’s opinion appended, the reports and recommendations of the Commission were admitted into evidence at the hearing before the zoning examiner. The record also discloses that appellants appeared and participated in those hearings. Since the report was treated as evidence along with other facts presented and opinions expressed, we fail to comprehend the source of appellants’ concern. It is obviously beyond our authority to review the weight given evidence by the District Council.

Judge Powers’ comprehensive opinion needs supplementation only as to two additional issues. First, appellants claim that the refusal to grant the special exception was an unlawful taking of property. This contention is based on a technical staff recommendation that the land be donated to the county after the use as a sanitary landfill is complete or, alternately, that they sell it at an agreed price to the Commission. Appellants argue that the rationale of Hoyert v. Bd. of County Comm’rs, 262 Md. 667, is controlling. In that case, the Court of Appeals found that the action of the District Council in denying rezoning of a portion of the property requested because of anticipated condemnation proceedings was arbitrary and discriminatory. Hoyert is clearly inapposite. In the case at bar, there was sufficient evidence wholly unrelated to any anticipated condemnation to support the denial of the special exception. Moreover, appellants’ assertion that “the Patuxent River Watershed Park Plan [is being used] as a club to drive property values down so that a property owner will not be justly reimbursed for the taking” is unsupported by any facts in the record.

Appellants also argue that the District Council’s determination is invalid because it failed to define the “neighborhood” involved, citing Malmar Associates v. Board, 260 Md. 292, as authority. In Malmar, the Court of Appeals explained that the requirement of defining the general neighborhood was applicable when a special exception was granted and, furthermore, that the burden to define the neighborhood was on the applicant for the special exception.

In Messenger v. Bd. of Co. Comm’rs, 259 Md. 693, where the appellants made a similar argument as appellants in the instant case, the Court of Appeals stated:

“This contention overlooks the basic difference between the Montgomery [v. Bd. of Co. Comm’rs, 256 Md. 597] case and the case at Bar.... In a case involving a denial by the District Council of the requested rezoning, it is only necessary for the District Council to find that the applicant had failed to meet his burden of proof ....” 259 Md. at 706.

We commend the trial judge for having so clearly articulated his reasons for affirming the District Council. Our review was made much easier thereby. When the frills are trimmed from the issues raised, the circuit court, as well as this Court, was called upon to do little more than review an administrative decision and verify that appellants had received substantial justice during the deliberative period. Despite their disappointment in the final determination, the procedural rules of fair play were properly applied and substantial justice resulted.

Judgment affirmed.

Costs to be paid by appellants.

APPENDIX:

“Upon motion of Councilman Amonett, seconded by Councilman F. White, and duly passed, it was Resolved that Application No. 2799. INTERNATIONAL DISPOSAL CORPORATION OF MARYLAND. Agent, Jess Joseph Smith, Jr., Attorney, for a SPECIAL EXCEPTION to use the premises located on the northeast quadrant of Queen Anne Road and Mill Branch Road, and borders on the west side of the Patuxent River, 7th Election District, containing 268.80± acres, property zoned R-R, for the purpose of SANITARY LANDFILL, be DISAPPROVED, in accordance with the District Council’s Findings of Fact and Conclusions which follow:

FINDINGS OF FACT AND CONCLUSIONS

I. FINDINGS OF FACT

The subject property is located on the east side of Mill Branch Road and North of Queen Anne Road and borders on the West Side of the Patuxent River being as close as 1000 feet from it. The subject property totalling 180 acres is within one and one quarter (l-'A) miles of the City of Bowie (T-5-177). The elevation of the land is steep from the river upward to the subject property varying from approximately twelve (12) feet above water level at the Patuxent River up to One Hundred Sixty (160) feet at the highest point of the property (T-5-182-183) and marked by deep ravines up to sixty (60) feet in depth (T-5-179) which run directly to the Patuxent River (T-5-179) (Exhibit 241 and following). Testimony by applicant as to essential information about water tables, location of acquifers, soil composition and runoff and lechate lacked authentication, was indefinite and conflicting. At no point was so much as a test boring submitted to substantiate any testimony or exhibit submitted by applicant (T-5-208). The tract of land is approximately fifty (50) percent wooded (T-5-178) and not ‘open land’ as indicated in the Exhibit 194 (p. 21). Two additional physical facts are of significance: first the subject property abuts property owned by Prince George’s County (181) acres formerly used for waste disposal and planned for such use in the future (T-397), (T-5-215-217) (T-413); second, the area is within the Patuxent River Watershed and the river itself has been designated a scenic river under Article 66C, Sections 759, et seq., of the Maryland Code (Now NR § § 8-401-8-407).

The subject property was zoned R-R on comprehensive zoning map adoption basis on July 26, 1960. There is no special exception history. However as above indicated, the history and proposed use of the adjoining 181 acres owned by Prince George’s County is relevant since it was used as a sludge dump by the Washington Suburban Sanitary Commission, and if it is able to meet State guidelines it could be a potential dump in the foreseeable future.

In reviewing the applicant’s position of the effects of their proposed landfill on the environment, we detect a certain corporate indifference throughout their environmental assessment (Exhibit 194) and their testimony balances economic advantages of this site against the real and potential dangers to the environment, both of which they recognize (Exhibit 194, p. 17-20). The applicant’s conclusion is that the economic benefits should control. The applicant’s blind spot is that such legislation as the Scenic Rivers Act and such committees as the Patuxent River Watershed Committee were authorized to make clear and protect the environment against economic expediency.

Since there was no real dispute as to the adverse environmental impact (Exhibit 194) (Testimony John Lancaster, Blaine Griffith, Park & Planning Technical Staff reports of the proposed use), the matter became one of the type and intensity of the damage. The opposition introduced the following, with which we are fully in accord:

1. Park and Planning reports recommending denial. They found it undesirable from an environmental point of view (p.p. 4, 7) Furthermore, they found the proposal not in harmony with the purpose and intent of the General Plan and would adversely effect the health and safety or residents and would be a detriment to the use and development of adjacent properties and the general neighborhood (p. 8).

2. The Patuxent River Watershed Committee report recommended denial. After four years of study they found that landfills result in siltation, lechate, disruption and destruction of wildlife. (See Attachment to Ex. 80, Technical Staff Report).

3. ‘Criteria for Sanitary Landfill Development’ — an article by experts in the field substantiates the unacceptability of this site.

4. Testimony of a naturalist by profession, Blaine Griffith, indicating damage to wildlife, plant life, and the environment generally (T-302,303, 314-315,317).

5. Testimony by Mary Bottner, Ben Wolman, Thomas Kidwell as to the adverse effect on their personal environmental setting and property values (T-5-158-159) (T-5-120-137-138). Such effects would be noise pollution (T-5-162) (T-5-120) water supply and air pollution (T-5-167-169) (T-5-210-212).

6. Council Bill 166. This ordinance evinces two things — first an intention to re-examine the policy decisions as to landfills general acceptability; and secondly, if they are acceptable, an evaluation should be made as to alternative sites.

7. The Availability of Alternative sites to the present one. John Lancaster, Blaine Griffith (T-314-316) Staff Report p. 6 and applicants exhibit 194 all recognize alternative sites. The only reason they were rejected was because of economic reasons.

8. Disasterous ecological effects to the environment were graphically shown through the testimony of Patuxent Watershed Committee and the accompanying slides of other landfill sites operated by applicant.

9. The testimony of John Marburger showing that the Chief Engineer at the Department of Public Works rejected the site and recommended denial of the application. Mr. Marburger’s candid bias in favor of the landfill site (as opposed to his chief engineer) was explained by him as a interest the County shared with the applicant in approval because it might assist the County in putting its own adjoining landfill into operation (T-400, 405).

10. The applicants attitude toward both environmental problems vis-á-vis the Patuxent River and the residents may have slipped out inadvertently through the testimony of their expert a Mr. McCoy who, in answer to a question as to whether an opponents water supply would be effected, replied:

‘If it does, you will be the first to notice it...’

With respect to property values testimony was presented by Kidwell, Wolman Bottner (T-5-211-212) as to the adverse effect of a landfill site on their property values. The applicant on the other hand insisted that even if the landfill polluted the Patuxent River, property values in the neighborhood would not be effected (T-589), an opinion which speaks for itself. Even more suspect than this are the ‘comparables’ in the report of the applicants’ appraiser (Exhibit 217). There are no offsetting factors such as shopping centers, bus transportation, schools, parks, recreational facilities or the like in the Queen Anne area which are bound to weigh in whether one would buy near a landfill site. Nor were these factors inquired into. In fact, the owners of the selected homes were not even asked if they knew they lived near a landfill site. It is also worthy of consideration that the landfill site was generally known to be closing in the near future. He did agree that having two landfill sites might adversely effect property values (T-581).

In short, the ‘comparables’ were not ‘comparable’ at all.

With a potential landfill site next door owned by the County — the argument for need of an additional one is understandably difficult for applicant to justify. Particularly in view of the applicants own testimony and evidence:

1. Their own experts rated the site second best. (T-199).

2. Their own reports and experts recognize alternative sites (Exhibit 194) (T-199) (T-400).

In addition:

3. Park & Planning Technical Staff report found alternative sites available. They also conclude protecting the environment to be a superior need. Staff report, p. 11.

4. Patuxent Watershed Committee produced a wide proposal of alternatives.

There has not been compliance with the Master Plan. The Bowie-Collington and Vicinity Master Plan, adopted October 1970, recommends the subject property for two land uses: The Patuxent River Park, and rural, low density residential development.

The specific information necessary in order to comply with the guidelines set forth in the Staff Report recommendations (guidelines 2, 6, 7, 8; p.7) was wanting at the time of that report and has not or could not be supplied, even up to the conclusion of the hearings.

Specific information on permiation, léchate and siltation was. not forthcoming from the applicant. No test borings were submitted to substantiate claims or speculations by applicants as to soil composition or water table information. No firm information as to clearing and redeveloping the land was given. Applicant continually urged approval based on the understanding that more specific information and preventative checks would be made at the next ‘phase’ (Exhibit 194 p. 19-14), and assured that any potential environmental damage could be cured by a landfill ‘properly operated’ (T-176).

The District Council expressly adopts those several recommendations of the Technical Staff and of the Planning Board with respect to denial of this application. Among these several adopted recommendation we are particularly impressed with, and emphasize the following contained in the supplemental Technical Staff Report (Ex. 80, p.p. 5 and 6):

T. Existing degraded areas in the County should be fully explored for their possible use as landfill sites. The use of virgin land for landfilling operations should be the very last alternative.

‘2. The subject property is not included in the Preliminary Ten-Year (1974-1983) Solid Waste Management Study which has determined the need for landfilling for this period.

‘3. The Scenic Rivers Bill compels harmonious and compatible land usage along the Patuxent. The use of the subject property for 15 years as a landfill operation will undoubtedly have a detrimental effect upon the scenic quality of the river and a lasting deleterious effect on wildlife and wildlife habitats.

‘4. The Maryland-National Capital Park and Planning Commission in cooperation with the State has spent over $3 million of public funds on land acquisition along the Patuxent. Lands adjacent to the park area must be protected, through the zoning laws, from encroachment of incompatible and unrelated land uses.

‘5. The County Department of Health states that no matter how well operated most landfills will produce sediment and leachate that will not always be contained on site. The ravines on the subject property lead directly into the Patuxent River thus causing a real threat of water pollution to the Patuxent.

‘6. The Kidwell and Samaras Tracts fronting Queen Anne Road are ‘Sandwiched’ between the existing County site and the proposed landfill.

‘The staff recognizes the need for sanitary landfill sites within the County. However, a glance at the Solid Waste, and Sand and Gravel Maps show the number of landfill sites, and sand and gravel operations already existing along the ‘scenic’ Patuxent River. To continue the proliferation of this type of degradation of the river and its adjacent lands is certainly inconsistent with the public’s intent of protecting the ecological balance and environment of the river.’

II. CONCLUSION:

For the aforegoing reasons and other reasons in support thereof in the record, the District Council finds that under the standards contained in Section 28.2 of the Zoning Ordinance pertaining to the grant of special exceptions: That the proposed use is not in harmony with the purpose and intent of the Zoning Ordinance; and will substantially impair the integrity of the approved master plan for this area, including the functional plan for this activity; and the proposed use would affect adversely the health and safety of residents in the area and would be detrimental to the use and/or development of adjacent properties or the general neighborhood.

Therefore, the District Council does hereby deny the application (S.E. No. 2799) for a sanitary landfill.

ENACTED by the District Council this 28th day of April, 1975.

On motion to Disapprove:

In Favor: Councilmen Francois, Amonett, Glendening, Hartlove, Koonce, F. White and Wilson

Opposed: Councilman Bogley

Absent: Councilmen Casula, McDonough and D. White

Vote: 7-1”

      . The District Council opinion is appended hereto foi referential purposes.

      . There is ample authority for the Maryland-National Capital Park and Planning Commission involving itself in the consideration of such applications:
      1) Art. 43, § 387C (b) 1. (II) — provides that the county plans for solid waste disposal systems in Prince George’s County be submitted to the Maryland-National Capital Park and Planning Commission for its recommendations concerning the plan.
      § 387C (d) 4. — provides that all applicants for solid waste facility construction approval shall submit to the “approving authority” evidence to show compliance with the plan.
      Although this statute does not directly require Maryland-National Capital Park and Planning Commission approval of individual applications, it shows a legislative recognition that the Commission is concerned in the proposed construction of sanitary landfills.
      2) Chapter 780 of the Laws of 1959 was enacted to consolidate all previous statutes relating to the Maryland-National Capital Park and Planning Commission. Section 66 of this Act provides for local planning boards for both Montgomery and Prince George’s Counties which are charged with local zoning functions, including “but ... not ... limited to ... the preparation and adoption of recommendations to the District Council with respect to zoning map amendments ....” Although special exception applications are not specifically mentioned, this section implies some authority to make recommendations as to those applications because of its broad language. The section concludes with the sentence:
      “The county planning boards shall meet from time to time with their respective county governing bodies and shall perform such surveys, studies, and other planning duties as the governing bodies may assign them.”
      3) Pr. George’s Co. v. Md.-Nat’l Cap., 269 Md. 202, explains the role of the Planning Commission in regard to the local county government. It was there decided that Chapter 780 is a public general law and, as such, cannot be abrogated by local ordinance.
      4) Section 28.111 of the Zoning Ordinance for Prince George’s County requires that:
      “In connection with each application for a special exception, unless otherwise specified in these regulations, the record shall include a report by the Technical Staff of the Planning Board. Such report shall include the Staffs recommendation.”
      This section, which now mandates the inclusion of such reports, was effective December 2,1974, after the date of application (May 14, 1973) and the date of the Technical Staff report (October 12, 1973) but shows that the action of the Staff and Board was in the contemplation of the District Council.
      5) Judge Powers correctly pointed to Chapter 780 as authority for the action of the Technical Staff but incorrectly relied on §28.111. That section is not applicable to this particular case as it was not effective until after the appellants’ application was filed and the Technical Staff report submitted..
      Other similar issues raised in appellants’ brief are patently frivolous; e.g., they claim the Patuxent Watershed Committee’s consideration of the application was unfair as there is no statutory authority for such consideration. The Committee was created in 1970 by the Planning Board. The same reasoning would apply to their participation as to that of the Technical Staff of the Planning Board. Appellant was given full opportunity at the hearing before the zoning examiner to rebut the staff and committee reports. Moreover, the examiner’s recommendations were advisory only and the final decision was made by the District Council.

      Note particularly, p.p. 5 & 6 of Supplemental Technical Staff Report (Ex. 80).


source: Caselaw Access Project

author: Mason, J.,

license: Public Domain

text:
    WILLIAM PAUL BURNETTE, JR. v. STATE OF MARYLAND
    [No. 515,
    September Term, 1975.]

      Decided July 23, 1976.

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

      E. Allen Shepherd, Assigned Public Defender, with whom was Edward P. Camus, District Public Defender, on the brief, for appellant.

      Gilbert Rosenthal, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Leonard L. Casalino, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

The appellant, William Paul Burnette, Jr., was tried by a jury in the Circuit Court for Prince George’s County on a thirty-count indictment. He was convicted of kidnapping, assault and battery, and various other crimes for which he received consecutive and concurrent sentences totaling forty years.

Neither the corpus delicti nor the criminal agency of the appellant is in dispute. Both are amply supported by the evidence. At the trial below the appellant pleaded not guilty by reason of insanity. On appeal two issues are raised:

(I) Did the trial court err in denying the appellant’s request to ask the jurors a certain voir dire question on the subject of insanity; and

(II) Was the use of the Allen-type charge so coercive and prejudicial as to deny the appellant a fair and impartial trial.

I.

The appellant requested the court to ask the prospective members of the jury the following question:

Does any member of the jury panel feel that a person should be punished for a crime if that person committed the crime as a result of a mental disorder?

The appellant contends that the refusal to ask this question denied him the right to question the jurors about their beliefs with regard to the defense of insanity.

In this State the nature and extent of the voir dire examination rests in the sound discretion of the trial judge. Vernon v. State, 12 Md. App. 157, 277 A. 2d 635 (1971); Carder v. State, 5 Md. App. 531, 248 A. 2d 495 (1968). The purpose of voir dire is to determine whether there is cause for challenge or disqualification of any prospective juror. Goldstein v. State, 220 Md. 39, 150 A. 2d 900 (1959); Collins v. State, 14 Md. App. 674, 288 A. 2d 221 (1972), cert. denied, 409 U. S. 882, 93 S. Ct. 169, 34 L.Ed.2d 137 (1972). Questions which “fish” for information which might be useful in making peremptory challenges may be refused in the discretion of the court. Questions which probe the prospective jurors’ knowledge of the law are not proper on voir dire. Carder v. State, supra. It is evident that the wording of the requested question was too general and too vague to aid the appellant in determining whether a particular juror had any predisposition concerning the defense of insanity. Grogg v. State, 231 Md. 530, 191 A. 2d 435 (1963). It is further evident that the form of the question sought the jurors’ knowledge of and attitude toward the law, or, in other words, sought information which might be useful in making peremptory challenges. See State v. Kelly, 285 A. 2d 571 (N.J. 1972).

Although the appellant’s voir dire question on insanity was denied, the trial court fairly covered this subject in the following instruction to the jury:

You are further instructed that as part of its burden in a criminal case such as this, where the defense of insanity is raised, the State must, in order to obtain a conviction, prove beyond a reasonable doubt and to a moral certainty that the defendant, at the time of the commission of the alleged criminal acts, was not suffering from a mental disorder which caused him to lack substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

We, therefore, conclude that the trial court did not abuse its discretion in refusing to submit the requested voir dire question to the jurors.

II.

The jury retired to deliberate at 2:45 p.m. After nearly four hours the court indicated to counsel that it had received a note from the jury which read as follows:

Judge Mattingly, Your Honor, we are in accord with the fifteen possible verdicts. We cannot decide on the following issues: sane or insane.. . .

The jurors returned to the jury box and the judge read the following Allen-type charge to them:

Mr. Foreman, ladies and gentlemen of the jury, the Court has reviewed your note from the foreman stating that you are in accord on the fifteen possible verdicts and we cannot decide on the following issues. Sane or insane.
The Court will further instruct you, Mr. Foreman, and ladies and gentlemen of the jury, that it observed that you have been out almost three hours on this case, almost four hours, excuse me, and had it under your consideration for that period of time. We instruct you that there are many cases in which absolute certainty cannot be expected. Although the verdict must be the verdict of each individual juror as a result of his own convictions and not a mere acquiescence in the conclusions of his fellows, each of you should examine the question submitted with candor and with a proper regard and deference to the opinion of others.
It is your duty to decide this case if you can conscientiously do so, and you should listen with a disposition to be convinced to each other’s arguments. If your views are contrary to those of the vast majority you should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct.
So, now I’m asking you to return to the jury room and deliberate further in light of these instructions.

The jury returned to the jury room and deliberated for another three hours before finding that the appellant was sane and guilty of various offenses charged.

The appellant argues, in effect, that because the jury had already deliberated on the issue of insanity for four hours and was unable to reach a decision, the giving of the Allen-type charge at that point had a coercive and intimidating effect on the jury. We disagree.

In Kelly v. State, 270 Md. 139, 310 A. 2d 538 (1973), the Court of Appeals, through Judge Digges, set out guidelines for the trial bench concerning the propriety and timing of an Allen-type charge. Briefly stated, those guidelines are:

1) that before the jury retires, the ABA approved charge is “always proper;”
2) that if the trial judge desires to “personalize” an Allen-type charge given before the jury retires he has greater latitude in doing so then than later;
3) that after the jury retires the trial court “should closely adhere to the wording of the ABA recommended instruction;” and
4) that in the absence of such adherence a reviewing court will carefully scrutinize the language of the charge to determine whether the jury has been coerced or its province invaded. The appellate court will also consider whether the timing of a nonconforming post-retirement charge amounts to an abuse of discretion.

In Pinder v. State, 31 Md. App. 126, 355 A. 2d 489 (1976), we compared the trial court’s charge there, taken virtually verbatim from Allen v. United States, 164 U. S. 492, 501 (1896), with the ABA charge approved in Kelly. Because of the extent of the deviation there present, and because certain additional coercive statements were made to the jury, we found undue coercion and, therefore, reversible error. We stated then, and repeat now, that a charge that does not conform with the ABA standards “should no longer be given in Maryland after the jury has retired.” Pinder, supra, 31 Md. App. at 136. We did not, however, hold that the giving of such a charge would always necessarily amount to reversible error.

In the instant case the post-retirement charge, taken almost verbatim from a pre-Kelly civil case, Leupen v. Lackey, 248 Md. 19, 234 A. 2d 573 (1967), in which it was approved, contained elements of both the traditional Allen charge approved by the Supreme Court in 1896 and of the ABA charge. There were no extraneous coercive statements made to the jury.

Although the charge in the present case was given after the jury retired and the language was at variance with the ABA approved Allen-type instruction, the province of the jury was not invaded and the verdict was not unduly coerced. The variance here was neither as great nor as coercive as in Pinder, supra. The jury discussed and considered the issue for four hours before indicating they could not agree. After the charge in question was given, the jury continued to deliberate for three more hours before reaching the verdict. While the passage of time between charge and verdict cannot, without more, be dispositive as to the existence vel non of coercion, the length of the period is a proper subject for our examination in determining whether a verdict was coerced.

Notwithstanding our express disapproval of certain language used in the challenged instruction, viz., “If your views are contrary to those of the vast majority you should consider whether your views, which make no impression on the minds of so many equally intelligent jurors, are correct.”, this charge, when considered in its entirety, as opposed to a truncated portion, was not such a flagrant deviation from the ABA approved Allen-type charge as to constitute reversible error.

Judgments affirmed.

      . Amer. Bar Assoc. Standards Relating to Trial by Jury, § 5.4 (1968), quoted in Kelly, supra, 270 Md. at 143-144 and Pinder v. State, 31 Md. App. at 125-126 (1976).


author: Melvin, J.,

text:
    VAN BUREN BARTLEY and ROBERT HILL, JR. v. STATE OF MARYLAND
    [No. 523,
    September Term, 1975.]

      Decided July 23, 1976.

      The cause was argued before Thompson, Moore, Melvin and Mason, JJ.

      James L. Baer, Assigned Public Defender, for appellant Bartley. Courtland K. Townsend, Jr., Assigned Public Defender, for appellant Hill.

      Michael James Kelly, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Bonner, State’s Attorney for Montgomery County, and Irma S. Raker, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

On December 20, 1972, Andrew Der, age 17, was accosted in front of his residence in Silver Spring, Maryland, by a black male wearing a long coat and carrying a rifle. The accoster was joined by four more black males, one of whom had another rifle. The five individuals robbed Der of his watch, his keys and his wallet containing money and various cards. At gun point Der was then forced to enter the house accompanied by the five individuals. Der’s mother and father, Paul and Marietta Der, also resided in the home and were at home at the time. The three Ders were then bound and gagged while the five intruders ransacked the house for valuables. The five men remained in the house about 20 minutes. During that time Mrs. Der was subjected to sexual assaults by at least three of the assailants. When the culprits were ready to leave the premises, they took the keys to Paul Der’s Volkswagen automobile and drove away in it, taking with them various other articles of personal property belonging to the Ders.

On January 3, 1973, the appellants, Van Burén Bartley and Robert Hill, Jr., were indicted by the Grand Jury of Montgomery County, charging them with various counts of armed robbery, robbery, larceny, assault with intent to rape, unnatural perverted sex acts, assault and battery, assault and larceny of a motor vehicle, all related to the events that took place at the Der household on December 20,1972.

On November 25, 1974, the appellants were brought to trial and a jury selected and impaneled (McAuliffe, J. presiding). During opening statement, the prosecutor informed the jury that one Alfred Truesdale would be the State’s first witness; that Truesdale “is one of the persons who perpetrated this horrible crime”; that Truesdale “was there and he will tell you who was there with him. He will tell you he was there with George Bartley, with Peter Hackett, and that he was there with Robert Hill, Jr., the defendant that’s here in this Court before you today. And that he was there with Van Burén Bartley that night and they all came up and they all took part in this crime”. (Emphasis added.)

After defense counsel had completed their opening statements and after Truesdale was called as a witness but before he took the stand to testify, both defense counsel were permitted to “voir dire him out of the presence of the jury on the in-Court identification . .he was expected to make. Following the voir dire the court recessed for the day. The next day the prosecutor informed the court that Truesdale “did not wish to testify in this case”.

“On that basis, I request the Court to grant a mistrial in light of the fact that I believe Alfred Truesdale wpuld testify in behalf of the State. I had SDoken with him and he assured me he would testify truthfully at the trial,'and I mentioned it in opening statement.”

Judge McAuliffe was reluctant to declare a mistrial. The record reflects his concern:

“THE COURT: ... Ordinarily, Mr. Truesdale would be a compellable State’s witness and a competent State’s witness as would the other two personsi! previously convicted in this case because there could be no claim as to self-incrimination by them, their cases having been finally decided and the appeal time having run.
“However, it is also my recollection that at the time the sentence was taken, or at the time the plea was taken and sentence imposed in the case of the other three, it was part of their negotiated plea bargain with the State that they would not be called against their will, if I am not mistaken about that. Otherwise, I would think you could call Mr. Truesdale from the stand and make him testify.
“My understanding is that he is now at least a reluctant witness and won’t testify, and the State doesn’t propose to call him.
“MRS. RAKER: That is correct, your Honor.
“THE COURT: I indicated to you in chambers I would be reluctant to grant the State’s motion for a mistrial unless the defendants concurred therein, or individually made a motion for mistrial.
“What is your pleasure? You know the State’s Attorney has mentioned the testimony of Mr. Truesdale in opening.
“MR. BERNSTEIN: On behalf of the defendant Van Burén Bartley, I would move for a mistrial, or join in the motion of the State for mistrial. I feel that comments made in the opening statement as to what Mr. Truesdale would testify to were very strong and it would seem to me that in the interest of justice, the Court must grant the mistrial.
“It is what is in the mind of the jurors and the jurors today are not that unsophisticated. They will probably get the impression, for some reason, Mr. Truesdale did not want to testify to help the two defendants.
“Accordingly, I would have Mr. Bartley ask for a mistrial.
“THE COURT: You discussed this mth Mr. Bartley this morning?
“MR. BERSTEIN: Yes, I have.
“THE COURT: Mr. Townsend?
“MR. TOWNSEND: On behalf of the defendant, Robert Hill, Jr., whom I have also discussed this with at some substantial length, I move for a mistrial for the same reasons cited and that the Court is familiar with. Mr. Hill concurs in our judgment to make that motion.
“THE COURT: Gentlemen, it is unfortunate but I agree once having . . . [placed] it in the jurors mind what the testimony of an accomplice would have been, that to not call that accomplice is to leave lingering in the jurors mind something which might well turn the scales against your clients. It is inadvertent and not deliberate on the part of the State, but the Court will grant each defendant’s motion for mistrial and direct the jurors be withdrawn.” (Emphasis added.)

The judge then declared a mistrial, the docket entries reflecting as follows:

“State’s motion for mistrial — no ruling Defendant Van Burén Bartley’s motion for mistrial — granted
Defendant Robert Hill, Jr.’s motion for mistrial granted, Jury withdrawn.”

On February 10, 1975, appellants were again brought to trial on the same indictment (McAuliffe, J. again presiding). Each appellant moved for dismissal on the ground of double jeopardy. Judge McAuliffe reserved his ruling on the motions and the case proceeded to trial by jury. At the close of the State’s case, neither appellant presented any evidence; each elected not to testify in his own defense.

On February 14, 1975, after four days of trial, the jury found each appellant guilty of three counts of armed robbery, assault with intent to rape, an unnatural and perverted sex act, assault and battery, assault, and larceny of a motor vehicle.

On March 17,1975, each appellant’s motion for a new trial was denied. At the same time, the court denied each motion for dismissal on the ground of double jeopardy upon which it had reserved its rulings at the commencement of the trial. On April 16,1975, each appellant received sentences totaling 20 years.

In their timely appeals to the Court, neither appellant contests the evidence as it relates to the corpus delicti of the crimes of which they were convicted. Each, however, vigorously contend that the trial court committed reversible error in its rulings on the admissibility of all evidence identifying each of them as being present at the Der home on December 20, 1974. Both also contend the trial judge erred in not granting their motions for dismissal or, in the alternative, a mistrial, because of an alleged violation of the witness sequestration rule (Md. Rule 753). In addition, appellant Bartley (but not Hill) contends on appeal that “the trial judge erred in refusing to dismiss the indictment after the defendant was placed twice in jeopardy”. We shall discuss this latter contention first.

I

Appellant Bartley’s Double Jeopardy Claim

In Jourdan v. State, 275 Md. 495 (1975), the Court of Appeals said, at 508:

“ ... [Wjhere jeopardy has attached to a criminal defendant and a mistrial is thereafter declared, the determination of whether the Fifth Amendment’s prohibition against double jeopardy bars a retrial depends upon the reasons for and circumstances surrounding the mistrial declaration.
“One circumstance where a retrial is normally permitted after a mistrial, without further examination into the reasons for the mistrial, is where the defendant sought or consented to the mistrial. United States v. Jorn, supra, 400 U. S. at 484-485; Cornish v. State, supra, 272 Md. at 318-319; United States v. Beasley, 479 F. 2d 1124(5th Cir.), cert. denied, 414 U. S. 924, 94 S. Ct. 252, 38 L.Ed.2d 158, reh. denied, 414 U. S. 1052, 94 S. Ct. 557, 38 L.Ed.2d 340 (1973); United States v. Goldstein, 479 F. 2d 1061, 1066 (2d Cir.), cert. denied, 414 U. S. 873, 94 S. Ct. 151, 38 L.Ed.2d 113 (1973). . . .”

In the present case, it is clear that appellant Bartley, through his counsel, “sought or consented to the mistrial”. The circumstances surrounding the declaration of the mistrial failed to show any prosecutional or judicial overreaching such as to harass the appellant or to enhance the chances of conviction in a second trial. See Baker, Whitfield & Wilson v. State, 15 Md. App. 73, 94 (1972).

Appellant’s claim that the jury was discharged without his personal consent is without merit. Unlike the situation in Jourdaa, supra, where the defendant himself opposed the mistrial although his counsel consented, there is no indication here that appellant opposed the mistrial. The record shows that he discussed the matter with his counsel and the entire colloquy between court and counsel quoted supra took place in his presence. Under the circumstances, we hold that appellant Bartley is “deemed to have consented or to be bound by his attorney’s action” (Jourdan v. State, supra, at 509) and that when he was brought to trial the second time there was no violation of the double jeopardy clause of the Fifth Amendment of the United States Constitution.

II

Admissibility of Identification Testimony

After opening statements by the prosecutor and defense counsel a suppression hearing was held out of the presence of the jury “on the question of possible suppression and exclusion of any extra-judicial identification, and the question of propriety of allowing an in-court identification, if one can be made”.

At the conclusion of the hearing the trial judge denied each appellant’s motion to exclude evidence of the extra-judicial photographic identifications as well as the in-court identifications expected to be made before the jury by the three victims.

Each of the victims and Lieutenant Skaife of the Montgomery County Police Department gave substantially the same testimony before the jury that they gave at the suppression .hearing concerning the pre-trial viewing of photographs. In addition, Andrew Der and Marietta Der made positive in-court identifications of both appellants. Paul Der made a positive in-court identification of Hill, but was unable to identify Bartley.

On appeal, the contentions of each appellant attacking the trial judge’s rulings are somewhat different. We consider first the arguments of Hill insofar as they differ from those of Bartley.

(1)

No photograph of Hill was shown to any of the victims until November 21, 1974, four days before trial no. 1. On that date, Lt. Skaife went to Florida where Andrew Der was attending college and showed him an array of six black and white photographs, one of Hill and one of each of five other black males. Lt. Skaife testified at the suppression hearing that from this array Andrew identified Hill and one Brazwell as being two of the five intruders at the Der home on December 20, 1972. Lt. Skaife characterized the identifications as “tentative”. Andrew, however, characterized his photographic identification of Hill as “positive”.

On November 24, 1974, the day before trial no. 1, the Hill array was shown to Paul Der at his home. He made a “tentative” identification of Hill. In a separate viewing of the same array on that date, Marietta Der made a “positive” identification of Hill. On the same date, Andrew Der was shown the Hill array for the second time and again isolated the photographs of Hill and Brazwell, but said, as between the two, that Hill was “the closest one”.

Hill does not argue that the makeup of the array containing his photograph was suggestive, and we find no evidence that Lt. Skaife made any improper suggestions that would prompt the witnesses in their identifications. Hill’s major argument is that once a suspect is in custody and especially when he has been indicted, photographs should not be used when more reliable identification procedures are feasible. If such photographic procedures are employed during the post-arrest stages, he contends that the burden is placed upon the State to show compelling circumstances to justify the use of such procedures in lieu of a corporeal line-up. If the State fails to meet this burden, then, he argues, his due process rights have been per se violated by the use of the less reliable procedure and a reversal is mandated. At the same time, however, Hill recognizes that in Neil v. Biggers, 409 U. S. 188, 93 S. Ct. 375 (1975), the Supreme Court declined to impose a strict rule barring evidence of suggestive confrontations because a more reliable procedure may be available. He nevertheless argues that Neil v. Biggers applies only to those cases tried before Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967 (1967), where the Supreme Court first gave notice that there was more involved in the suggestiveness of confrontation procedures than a jury question. This latter argument,however, is without merit, for in Dobson v. State, 24 Md. App. 644 (1975), this Court, speaking through Judge Gilbert (now Chief Judge), made it clear that, despite the holding to the contrary in Smith v. Coiner, 473 F. 2d 877 (4th Cir. 1973), Biggers applies to post-Stovall cases as well as to pre-Stovall cases “insofar as this State is concerned”. Id. 654.

In Biggers, supra, at 196-197, the Court in rejecting “a strict rule barring evidence of unnecessarily suggestive confrontations” reiterated the “governing test” set forth in Simmons v. United States, 390 U. S. 377, 384 (1968), where witnesses make in-court identifications arguably stemming from previous exposure to a suggestive photographic array:

“[W]e hold that each case must be considered on its own facts, and that convictions based on eye-witness identification at trial, following a pretrial identification by photograph will be set aside on that ground only if. the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

The Court in Biggers went on to hold that “unnecessary suggestiveness alone” does not require the exclusion of evidence. Id., at 198. Rather, the “central question” is “whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive”. The Court then said:

“ .... As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.”

Applying these factors to the present case against Hill, and after our constitutionally mandated independent review of the evidence presented at the suppression hearing, we conclude that although we find no compelling circumstances justifying the exclusive use of photographic identification procedures, especially at such a short time before trial, under the totality of the circumstances the procedures used did not give rise to a very substantial likelihood of misidentification. As said in Biggers, at 198, “It is the likelihood of misidentification which violates a defendant’s right to due process ...” and forms the basis for the exclusion of evidence.

The intruders were present in the Der home for approximately 20. minutes. During the period all of the Ders had ample opportunity to view their attackers under good lighting conditions. Although the Ders were not shown Hill’s photograph until 23 months after the crimes, it cannot be doubted that the circumstances surrounding the events of December 20, 1972, left indelible impressions upon their minds. Such circumstances are unlikely to be soon forgotten.

(2)

Both appellants contend that the in-court identifications made by the victims were “tainted” by an incident that occurred on the morning of trial no. 1, November 25, 1974. Prior to commencement of the trial, as the three Ders were about to enter the courtroom, they saw both appellants standing in the hallway. Subsequently, the appellants entered the courtroom and took seats behind the Ders. Andrew Der testified that he was surprised to see them because he thought they would be in custody. He described his recognition of them: “Just as soon as I saw them, it flashed back; it was so weird seeing them in person .... Their faces. I remember seeing them as I did the night of the crime”.

As we understand appellants’ contention regarding the incident, it is that the confrontation amounted to an illegal “show-up”, aggravated by the fact that only the night before the Ders had been shown a photographic array containing a photograph of Hill that they had identified. The contention is without merit. There is no evidence that the State or the police had anything whatever to do with the confrontation, or that it was anything other than a chance meeting. Moreover, the evidence is clear that Andrew recognized appellants immediately before they were in any way singled out as the persons to be tried that day. See Layman v. State, 14 Md. App. 215, 222-223 (1972). Appellants’ due process rights were not violated.

(3)

A photographic array containing the picture of appellant Bartley (but not Hill) was shown to Paul and Marietta Der on December 23, 1972, out of the presence of each other. Marietta Der made a tentative identification of Bartley. Paul Der was unable to identify him. The next day, December 24, 1972, the same array was shown Andrew Der, who made a positive identification of Bartley. Also, on December 24, at a separate viewing, Andrew was shown another array of 13 color photographs including those of three individuals who eventually entered guilty pleas with regard to the events of December 20,1972, at the Der home. Appellants’ photographs were not included in that array. Andrew made positive identifications of two of the three (George Bartley and Alfred Truesdale) and a tentative identification of the third (Peter Hackett). He also tentatively identified two others, Jessie Bell and Wesley Wilson.

At the suppression hearing, Lt. Skaife testified that the photographs of Jessie Bell and one Addison Walter were missing from the color array because they had been returned to the police files and could not be located for production in court.

Appellants contend on appeal that the absence of the two photographs at trial “tainted the identification process” as they were “unavailable for scrutiny by the defense or the Court”. Appellant Bartley contends further that the absence of Jessie Bell’s photograph which Andrew Der tentatively identified “deprived him of an opportunity to challenge Andrew Der’s identification of the defendant [Bartley] ... or to challenge his recollection based upon prior mis-identification when Andrew Der testified before the jury”.

We think Judge McAuliffe correctly disposed of these contentions at the suppression hearing:

“The specific questions raised by the defendant’s counsel, in addition to that general question, deal first with the missing photographs. That at a prior time in this case, photographs were shown to these witnesses and that one or more of these witnesses picked out on a tentative basis tv/o persons as being possibly among those who were in their home and that the photograph of one of those persons is no longer in the police files or available to these investigating officers.
“It appears from all that we have heard what happened was this. That that photographic array was presented to the witnesses at a time prior to the trial of the first three defendants in this case. It resulted in identification being made in connection with those first three defendants but no identification being made in connection with these two defendants. Accordingly, when the first three defendants all entered pleas of guilty and were found guilty and sentenced, the police returned certain of those photographs, not all of them, except possibly the first three defendants, to their working files apparently as is their custom.
“This would appear, under the circumstances of this case, to have been an unfortunate judgment. They should have been retained because any array displayed to any witness pertains to all five defendants and not just the three. When it became apparent that the prior array would be considered in connection with these identifications, the police sought to retrieve all of those photographs which they had identified and they knew which they were. When they went back in their files, some had been taken out, more particularly, two had been taken out, apparently for use in other cases and there would be no way of knowing where they were or no way of finding them so we are missing two. One is not of much significance because, although it was in the array, it was never selected by anyone even as a tentative identification. The other one has some significance in that it was at least given a tentative identification and it would be preferable if it was before this jury because of the weight factor.
“Obviously, the extent to which that photograph might be completely different as to facial characteristics from either of these two defendants would be of some importance, although that has to be weighed against the fact that in picking that photograph as a tentative the witness or witnesses may have intended it or may have thought it looked like one of the other three and never thought it looked like these two at all. There would be no way of knowing that, I would think.
“It would have some relevance and some bearing and we would allow it to go before the trier of fact and it would be preferable if it was here, but judging the State’s conduct, it is obvious this is no intentional expression [sic] of relevant evidence or destruction of relevant evidence. It is entirely unintentional and in good faith. They don’t believe that an array applied to the earlier case since it was over. There was no need to retain the array. Secondly, the defendants in this case had the benefit of the testimony, at least of such misidentification should they decide to use that. I point out the obvious strategical problems involved in that determination which is one for trial counsel after conference with their defendants. Should they desire to bring to the attention of this [sic] trier of fact the misidentification, then they can show that two photographs were selected by one witness as tentative and they can show one of those photographs and produce evidence of the identify [sic] of the other person and show clearly it is not one of the original three nor one of the two on trial and produce before the jury testimony that that photograph has been misplaced or is no longer available to the police.
“The Court doesn’t feel that that unfortunate loss of one photograph is of such magnitude under all of the circumstances of this case as to justify the extreme sanction of excluding pretrial identification and possibly in-court identification.”

As already indicated, the missing photographs were never included in either the Hill array or the Bartley array shown the victims, and neither appellant has challenged the make-up of those arrays. We further observe that neither appellant attempted to place before the jury, as suggested by Judge McAuliffe, any evidence concerning the so-called “misidentifications” made by the Ders of either Jessie Bell or Wesley Wilson. In the circumstances, we find no prejudice amounting to a denial of due process.

Ill

Trial Court’s Denial of Motion for Mistrial Upon Alleged Violation of Sequestration Rule

On February 11, 1975, after Andrew Her had completed his testimony and Marietta Der was still on the stand, the trial was recessed for the day. Maryland Rule 753, dealing with sequestration of witnesses, had previously been invoked by the court, and when Mrs. Der left the stand the court admonished her “not [to] discuss any aspects of this case or your testimony . . ..” At that point the Ders went to the prosecutor’s office tó request additional police protection. While communicating by telephone with a Captain MacDonald concerning arrangements for the additional protection, the prosecutor remarked to him that Andrew Der had already identified the appellants from the witness stand. Bartley’s counsel, who was present in the prosecutor’s office, reported the matter to the court and both counsel moved for a mistrial or dismissal. The judge conducted a hearing out of the presence of the jury and denied the motions after determining appellants suffered no prejudice from the incident. The judge further found that any violation of the sequestration rule was unintentional. Judge McAuliffe said:

“The Court is satisfied that if they heard it, it didn’t register or they did not hear it, that it has not influenced them or had impact upon them and that, in fact, it would appear to me that they are not aware of it. Even if they suspected it, which they may from being very practical, gentlemen, they know Andrew, that he was there. I am sure they knew Andrew’s reaction when he saw the defendants in the hall. I doubt that they would have much seriously doubted that Andrew probably is in a position to identify one or both. I am satisfied, however, that they do not know what he testified to and the specifics of what he was asked to do or did do in terms of an in-court identification.”

Our review of the record convinces us that the judge did not abuse his discretion in denying the motion and that appellants were not prejudiced by the incident. We see no error in the rulings.

Judgments affirmed.

      » Appellants were represented by separate counsel both below and before this Court.

      . George Bartley and Peter Hackett.

      . Lt. Skaife explained his use of the terms “tentative”, “tentative — positive” and “positive” in characterizing photographic identification made >y witnesses:
      “A tentative identification is when a person isolates on a photograph and is just not sure. There is something about the photograph; I guess it’s a feeling within the individual and says, you know, there’s something about the photograph. But tentative would be something, I’m not sure.
      “A tentative to positive is where a person feels, in essence, this looks like the person but I’m just not sure and it has more strength when I hear this type of expression from a witness.
      “A positive identification is when they indicate by the photograph that this is the person they identify^ to be the perpetrator of the crime of which they have been a victim.”

      . As indicated by the citations in Dobson v. State, supra, at 653, the words “unnecessarily” and “impermissibly” when coupled with “suggestive” would appear' to have the same meaning — lack of compelling circumstances.

      . The same color array was also shown to Paul and Marietta Der. Paul Der positively identified George Bartley and picked out Wesley Wilson’s photograph as a “look-a-like”. Marietta Der made a positive identification of George Bartley and Peter Hackett, a “tentative positive” identification of Alfred Truesdale and a tentative identification of Wesley Wilson.


author: Morton, J.,

text:
    WILLIAM JOHNSON-BEY v. JOSEPH P. REIGER, Personal Representative of the Estate of Winslow Rollins
    [No. 742,
    September Term, 1975.]

      Decided July 23, 1976.

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

      Leonard A. Orman for appellant.

      Francis X. Gallagher for appellee.
   Morton, J.,

delivered the opinion of the Court.

Plaintiffs, William Johnson-Bey and Jacqueline McBride, brought suit in the Superior Court of Baltimore City (Sodaro, J., presiding) to recover compensation for injuries resulting from an automobile accident. Judge Sodaro directed a verdict in favor of the plaintiffs on the issue of liability. The jury awarded damages in the amount of $500 to Ms. McBride and $1,500 to Mr. Johnson-Bey. Only Mr. Johnson-Bey has appealed.

The record indicates that in October, 1970, the appellant sustained injuries as the result of an automobile collison caused by the negligence of the late Winslow Rollins, whose estate is represented by the appellee. Following the accident, the appellant was taken to a hospital where he was examined, given medication for pain and released. Two days later, he visited his family physician, Dr. Edward Holt, since the pain caused by his injuries seemed to be worsening. He remained under Dr. Holt’s care for approximately a year and a half, during which time he was also examined by an orthopedic surgeon to whom Dr. Holt had referred him. In the course of the appellant’s medical treatment, he was given heat treatments, medication, exercises, a neck collar and a back brace. At the trial, the appellant testified that his lower back continued to hurt and that he still wore a back brace occasionally and took aspirin to relieve the pain.

Dr. Holt testified that in his opinion the appellant’s injuries from the accident consisted of neck strain, low back strain and head and abdomen traumatic injury. When he released the appellant from his care in April, 1972, he diagnosed the appellant as having a permanently disabled lower back, all other complaints having disappeared.

At the time of the accident, the appellant was employed by the Social Security Administration as an “assembly and file clerk,” a position which required bending and lifting. After the accident, he continued to work at the Social Security Administration but was given a desk job which did not require any bending or lifting. At the time of the trial, he remained employed at this desk job. He testified that because of the accident, he was absent from work for a total of 671 hours. Despite the fact that he no longer has to do any lifting or bending, he testified that his back continues to ache when he remains in the same position for any length of time and when the weather is inclement.

His salary at the time of the accident in October, 1970, was $109 per week. At the time of trial, four and one half years later, his salary was $162 per week.

In June, 1973, the appellant was involved in another automobile accident in which his back was injured and for which he was hospitalized twelve days. When the appellant was asked at the trial “whether the condition that he had before the ’73 accident * * * was the same condition he is now suffering from?,” he responded: “I have the same pain, really.” During cross-examination when asked whether he knew which accident had caused the pain in his lower back, he answered: “No. I just know I have pain.”

The appellant testified that he was treated by different doctors for the injuries he received in the 1973 accident. Although Dr. Holt testified that he diagnosed the appellant’s disability as permanent sometime in the spring of 1972, he also testified that he was unaware of the fact that the appellant had been involved in a second automobile accident in 1973.

It is in this factual posture the appellant contends that the trial court committed reversible error by refusing to instruct the jury that, in their determination of damages, they should consider the appellant’s “future loss of earning capacity” he “may suffer as a result of his injuries.”

With respect to the appellant’s request for an instruction concerning future loss of earning capacity, the trial judge instructed the jury:

“You may also take into account his lost wages as a direct and proximate cause of this accident of 1970, and no other cause, and in this situation there is no evidence of any future lost wages. * * * '
The testimony is there is no evidence of any future lost wages or future medical expenses in this case * * *.”

From our review of the record we think the trial judge made, a proper observation to the jury that “there is no evidence of any future lost wages.” The only testimony remotely relating to future loss of earnings was that of appellant’s family physician who “felt * * * the injury to his [appellant’s] back was of a permanent nature.” The orthopedic physician who examined him did not testify. The family physician received a report from the orthopedist in November, 1971, which apparently stated that appellant was “asymptomatic except for some periodic discomfort in the back * * *.” When asked what the term asymptomatic meant, the family physician stated: “It means he has no more problems, no more complaints. He is well, in other words.” The only other testimony was that of the appellant who stated that he had “trouble in my back” if “I sat in a position for too long”; or in “bad weather”; or when under “a lot of tension.”

Appellant places great reliance upon the decisions of the Court of Appeals in Adams v. Benson, 208 Md. 261 (1955) and Bender v. Popp, 246 Md. 65 (1967). We think the specificity of the medical evidence in each of those cases was so substantially greater than the evidence set forth in the record before us that the holdings therein are not controlling here.

In Adams v. Benson, supra, the Court re-articulated the following rule, at 270-71:

“We reaffirm the rule stated in Mt. Royal Cab Co. v. Dolan, 166 Md. 581, 171 A. 854, that in an action for personal injuries caused by the negligence of the defendant, the plaintiff may recover not only for the consequences which have actually and naturally resulted from the tort, but also for those which may certainly or reasonably and probably result therefrom as proximate consequences, but not for consequences which are speculative or conjectural. [Emphasis supplied.]

There, the young woman plaintiff had been awarded damages in the lower court for injuries she received to her hand which she accidentally plunged into an unguarded electric fan while present in a tavern as a patron. After testifying to the excruciating pain she suffered for several months after the accident, she stated: “ ‘My hand is awfully sensitive and weak. I can’t grip things very long and I can’t make a tight grip. I have continuous pains.’ ” There was medical testimony that the plaintiff was unable to make a complete dorsal flexing of the wrist; that her disability was ten percent; and that the painful condition of the hand was “probably permanent.” There was also evidence that when she returned to the cannery where she worked as a tomato slicer, the salary she had received prior to the accident was substantially diminished as a result of her injuries. In approving an instruction to the jury that the plaintiff was entitled to recover damages for “loss of future earnings,” the court pointed to the rule that loss of future earnings may be considered “if shown with reasonable certainty and not merely speculative in character.” It found that the evidence there was sufficiently detailed, certain and non-speculative to meet the test.

Bender v. Popp, supra, involved an appeal by a plaintiff from a jury verdict awarding her $2,800 for injuries she received in an automobile accident. She contended on appeal that the trial judge erred in refusing to instruct the jury that, in determining damages, they should consider “How far her injuries are calculated to disable the plaintiff from engaging in those business or industrial pursuits or employments and housewifely duties for which, in the absence of such injuries, the plaintiff would have been qualified.” The late Judge Thomas B. Finan, who authored the Court’s opinion, found, at 71:

“There was medical evidence in the record, as well as the plaintiff’s testimony, describing her subjective complaints'as to the exhaustion, pain, headaches and limitation of the motion of her neck, all of which presented facts from which a reasonable inference could have been drawn that her range of job opportunities and earning capacity would be affected by the injury.
The defendant’s medical witness, Dr. Aronson, testified that the plaintiff had sustained permanent injuries as a result of the accident. The plaintiff’s medical witness, Dr. Horton, testified that the plaintiff had sustained a permanent injury which he stated ‘might’ be a five to ten percent permanent partial disability to her neck.”

Judge Finan then announced, at 71-72:

“This Court feels that the undisputed evidence of a permanent injury, even though close to minimal limits, renders the question of its effect on future earning capacity and job opportunities a matter within the purview of the jury. It presents a legitimate issue, the effect of which on the question of damages is fair game for both adversaries to argue to the trier of fact.”

While we are of the opinion that the evidence of appellant’s “future loss of earnings” resulting from his injuries was simply “speculative or conjectural” (Adams v. Benson, supra) and did not meet the “minimal limits” delineated in Bender v. Popp, supra, there is an additional factor present in this case which factually distinguishes it from Adams and Bender.

Here, the evidence shows that the plaintiff was involved in an automobile accident subsequent to the accident upon which the present action is based. His injuries in the second accident also involved his back, as a result of which he was hospitalized for twelve days. On the other hand, after the first accident he was released from the hospital immediately upon his initial examination. At the trial, appellant was able to say only that his back hurt the same after the second accident as it did after the first. He could not say which accident actually caused the condition from which he was presently suffering. His attending physicians in the second accident did not include his family physician who treated him for injuries received in the first accident. There was no evidence to indicate what bearing the injuries sustained in the second accident had upon his present condition. Although his family physician indicated at the trial that he had formed his opinion that appellant suffered a permanent disability from the accident prior to the occurrence of the second accident, he was not even aware that appellant had sustained injuries in the second accident.

Additionally, there was no evidence to demonstrate the locale or section of that part of the appellant’s lower back which was painful or to what extent the pains would interfere with or cause him to sustain a loss of future earnings. In short, there was a failure to produce evidence from which the jury could make a reasoned calculation of the effect the occasional pain would have upon appellant’s ability to earn a living in the future. Moreover, there was no evidence upon which the jury could segregate the effects of the injuries sustained in the second accident from those of the first. The jury might speculate, conjecture, or guess the result, but this is not a permissible method of assessing damages.

The appellant also contends that the trial judge improperly refused to grant his requested instruction concerning his loss of earning capacity “from the date of the accident to the date of trial.” The judge instructed the jury:

“* * * you may take into account and consider also all medical expenses and hospital expenses, and additional lost wages and other out-of-pocket expenses which you may find were incurred as a direct and proximate cause of this accident, and for no other causes. In addition thereto, Mr. Johnson-Bey is entitled under the law to be compensated for all time lost from work which you may find was a direct and proximate cause of the injuries of the 1970 accident, and that the defendant cannot reduce the damages if you feel he is entitled to it by the fact that some of the plaintiffs lost wages were covered by sick time, and vacation time, which were due to him in any event as compensation for his employment.”

We believe that a fair reading of this charge adequately expresses the thought embodied in the appellant’s requested instruction. The trial judge is not required to accept a requested instruction but may substitute one of his own. Maryland Rule 554 b. 1.

The appellee’s motion to dismiss the appeal on the ground that the appeal was from the order nisi rather than the formal judgment is denied. It is true that appellant noted an appeal “from the judgment entered in this action on May 14, 1975,” which was improper since the judgment absolute was not entered until May 22,1975, after appellant’s motion for a new trial had been denied. The order of appeal, however, was entered on June 18, 1975, after the judgment absolute had been entered and within thirty days thereof. The reference to the May 14, 1975, judgment was merely surplusage and did not alter the effectiveness of the appeal. Shipp v. Autoville Ltd., 23 Md. App. 555, 559 (1974).

Motion to dismiss denied; judgment affirmed; costs to be paid by appellant.


author: Murphy, J.,

text:
    JOHN HENRY SQUIRE v. STATE OF MARYLAND
    [No. 1171,
    September Term, 1975.]

      Decided July 23, 1976.

    The cause was argued before Robert C. Murphy, Chief Judge of the Court of Appeals, Robert E. Clapp, Jr., Associate Judge of the Sixth Judicial Circuit, and Robert L. Karwacki, Associate Judge of the Supreme Bench of Baltimore City, all specially assigned.

      David B. Allen, with whom was Michael Bowen Mitchell on the brief, for appellant.

      Gilbert H. Robinette, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Roy A. Breslow, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Murphy, J.,

delivered the opinion of the Court.

The appellant was found guilty by a jury in the Criminal Court of Baltimore of assault with intent to murder and of the unlawful use of a handgun in the commission of a crime of violence; he was sentenced to eight years’ imprisonment. He contends on appeal that the lower court, in its jury instructions, erroneously imposed upon him the burden of proving self-defense, thereby violating the due process clause of the fourteenth amendment by relieving the State of its burden of proving, beyond a reasonable doubt, every fact necessary to constitute the crime charged. He relies on In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1975).

The pertinent portion of the jury instructions is as follows:

“Moreover, the burden of proof of proving self-defense is on the Defendant, not upon the State, although this burden by the Defendant may be fulfilled by a preponderance of the credible evidence; in other words, the Defendant is not obliged to prove a valid self-defense beyond a reasonable doubt. Naturally, in every criminal case, the burden is always upon the State to establish proof of every element of the crimes that are charged against the Defendant beyond a reasonable doubt.”

The appellant argues that this instruction violated the principles of Mullaney since it shifted the burden to him to prove that the homicide was justifiable or excusable in contravention of our holding in Evans v. State, 28 Md. App. 640, 349 A. 2d 300 (1975), aff'd, State of Maryland v. Edward Evans, 278 Md. 197, 362 A. 2d 629 (1976). While he acknowledges that no exceptions were taken to the instructions, the appellant urges that the error was plain and material and that we should take cognizance of it on our motion under Maryland Rule 756 g. He contends that “the full scope of Mullaney was not realized” at the time of his trial, and that it was not until we decided Evans v. State, supra, on November 26, 1975, five months after his trial, that the implications of Mullaney, and its applicability to self-defense, were made clear.

The State, while agreeing that there was legally sufficient evidence to raise the issue of self-defense, and also agreeing that the instruction violated the principles announced in Mullaney, contends that “[s]ince the trial of this case occurred after the Mullaney decision was handed down, ... the question is not one of plain error [in the instructions], but one of waiver.”

The Supreme Court decided Mullaney on June 9,1975. The appellant’s trial took place on June 13, 1975. Maryland Rule 756 g provides that upon appeal a party assigning error in the jury instructions may not do so of right unless (1) the particular portion of the instructions given or the particular omission therefrom or the particular failure to instruct was distinctly objected to before the jury retired to consider its verdict and (2) the grounds of the objection were stated at that time. The rule provides that “ordinarily” no other error will be considered on appeal, but it permits appellate courts to “take cognizance of and correct any plain error in the instructions, material to the rights of the accused even though such error was not objected to ....” As we noted in Brown v. State, 14 Md. App. 415, 287 A. 2d 62 (1972), even if an error in jury instructions is plain, its consideration on appeal is not a matter of right; the rule is couched in permissive terms and necessarily leaves its exercise to the discretion of the appellate court. 14 Md. App. at 418. That the error may have' been of constitutional dimension does not per se raise it to the level of “plain error” under the rule, State v. Evans, supra, since even constitutional rights may be waived in the course of a trial, Dimery v. State, 274 Md. 661, 338 A. 2d 56 (1975).

In Canter v. State, 220 Md. 615, 155 A. 2d 498 (1959), it was held that Rule 756 g was designed to afford the trial judge an opportunity to correct inadvertent omissions or inaccuracies in a charge, and that an appellate court should not exercise its right to take cognizance of and correct any plain error material to the rights of the accused, of its own motion; if the alleged error was one that might have been readily corrected if it had been called to the trial judge’s attention. To like effect, see Reynolds v. State, 219 Md. 319, 149 A. 2d 774 (1959); Parker v. State, 4 Md. App. 62, 241 A. 2d 185 (1968).

In view of the purpose of the “plain error” rule, and because the error of which the appellant complains could have been corrected by additional or supplemental instructions had Mullaney been called to the attention of the trial judge (see Brown v. State, supra, at 420), we decline to invoke the provisions of the rule in this case. In so holding, we note that the decision to treat as plain error the faulty instruction given in Evans stands in contrast with that here involved in that the error in Evans occurred before the Supreme Court decided Mullaney, whereas the error in the present case occurred subsequent to that decision. In its affirmance of the judgment in Evans v. State, the Court of Appeals considered it appropriate to recognize, as “plain error” under Rule 756 g, an error in jury instructions committed in a case tried prior to the Mullaney decision, since in view of Mullaney’s retroactive application, the error was one specifically open to collateral attack under the provisions of the Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl. Vol.), Article 27, § 645A (d).

Judgments affirmed; costs to be paid by appellant.

      . Compare Estelle v. Williams, U.S. , 96 S. Ct. 1691, 48 L.Ed2d 126 (1976), decided May 3, 1976, a case in which the Supreme Court held that a criminal defendant waived his constitutional right to be tried in civilian clothes by failing to object where past practice indicated that had he objected he would have been permitted to wear civilian clothes at his trial.