text:
    JEFFREY SNEIDER-MARYLAND, INC. v. GERARD M. LaVAY
    [No. 582,
    September Term, 1974.]

      Decided October 3, 1975.

      The cause was argued before Morton, Thompson and Powers, JJ.

      Charles Norman Shaffer, with whom were Shaffer, McKeever & Fitzpatrick on the brief, for appellant.

      Joe M. Kyle, with whom was Herbert W. Jorgensen on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

This case arose from transactions relating to purchase and sale of a group of nine residential building lots in Montgomery County, adjacent to Heathwood Court, between River Road and Bradley Boulevard. It is apparent that the difficulty between the parties is attributable to a so-called sewer moratorium imposed in the Cabin John drainage basin, in which the property lies.

Appellant here is Jeffrey Sneider-Maryland, Inc., which we shall refer to as “Sneider”. Appellee is Gerard M. LaVay. A background review of their contractual relationships to the property is desirable.

On 31 July 1967 LaVay entered into a contract to purchase the lots from one Robert G. Ellis, who signed on behalf of a corporation to be formed. Because of unrealized contingencies in the contract, and because he forewent an option to cancel it, LaVay in 1973 still held the right to buy the lots under his 1967 contract. By an Assignment of Contract dated 7 April 1973, LaVay assigned his rights to Sneider. We quote two provisions of the Assignment, which are pertinent to the issues in this case.

Paragraph 3 provided:

“The Assignee hereby agrees to pay the Assignor as a total consideration for the assignment herein, the sum of One Hundred Eighty Thousand Dollars ($180,000.00). Said sum shall be payable $90,000.00 cash upon the execution of this Assignment and $90,000.00 cash fifteen days prior to the time of settlement under the contract attached hereto as Exhibit “A” as hereinafter set forth in paragraph numbered 6. Time is of the essence for payment under this paragraph. In the event payment is not made as provided herein, this Assignment shall be null and void and the sum paid in the amount of $90,000.00 shall be forfeited as fixed and liquidated damages and the parties shall be relieved of all further liability to each other and further, Assignor shall have the right to settle under the contract as if this Assignment had not been made.”

Paragraph 10 provided:

“The Assignor warrants and represents that sanitary sewer and water facilities are or will at settlement be at a property line of the subject property, and that the said property is sewerable and that the sewer is or will at settlement be available for connection, and in size sufficient to service the subject property for the purpose for which the Assignee intends to put the same; namely, the erection of nine (9) single family homes. In the event the water and sewer facilities are not as set forth in this paragraph, all sums paid by Assignee to Assignor shall be refunded to Assignee and the parties shall be relieved of all further liability to each other. In the event Assignee settles on the contract with “seller”, all liability of Assignor under this Assignment shall thereafter be null and void, it being conclusively presumed that Assignee has investigated the availability of water and sewer prior to settlement and satisfied itself that these items are as represented by Assignor. All tap fees have been paid by Assignor in the amount of $6,390.00, which sum shall be repaid by the Assignee to the Assignor at the time of settlement. If Assignee elects to make any permit applications prior to settlement, Assignor will cooperate and join in where required by Assignee.”

LaVay promised more with respect to sewer and water than his seller had promised him. The 1967 contract, made a part of the 1973 Assignment, contained this promise:

“Seller further agrees that it will cause to be installed underground power lines, sewer and water lines and connections thereto so as to make sewer and water available at either the front or rear lot line of each lot sold by this agreement.”

It appears to be undisputed that at the time of the Assignment on 7 April 1973 sanitary sewer and water facilities were in fact “at a property line of the subject property”, that future hookups had been authorized by the Washington Suburban Sanitary Commission, and tap fees paid; and that all of these facts were known to the parties.

Time for settlement under the 1967 contract was fixed as 30 days after acceptance by Montgomery County of a street which the seller had undertaken to construct. Before this event took place, and pursuant to orders of the Secretary of Health and Mental Hygiene dated 16 August 1973, the Washington Suburban Sanitary Commission, by a resolution adopted on 19 September 1973, imposed a prohibition against any hookup to a sanitary sewerage line in the Cabin John drainage basin unless the structure to be hooked up was under construction on 13 September 1973 under a County building permit issued on or before 16 August 1973.

The undisputed effect of this prohibition was that sewer was not available to service the property.

On 23 October 1973 Sneider filed in the Circuit Court for Montgomery County, in equity, a bill of complaint for declaratory judgment, rescission, injunction, impression of constructive trust, and other relief. Later, with leave of court, the complaint was amended. Named as defendants were LaVay, and others who then held title to the property, subject to the 1967 contract. Time for settlement under the 1967 contract was triggered by Montgomery County’s acceptance, on 18 December 1973, of the street provided for in the contract. LaVay settled. The pending case was dismissed as to the other defendants. On 6 and 7 August 1974 trial was held before Judge David L. Cahoon.

As we see it the critical issue tried and decided in the court below was whether LaVay’s warranty of 7 April 1973 that “the sewer is or will at settlement be available for connection” was breached.

On 7 August 1974 the chancellor rendered an oral opinion, and on 27 August 1974 signed a decree which declared the rights of the parties as follows:

“1. The Plaintiff has not established a right to the rescission of the sales contract dated July 31, 1967 attached to the Amended Bill of Complaint as Exhibit A.
“2. The Plaintiff has not established a right to the rescission of the assignment of contract dated April 7, 1973, attached to the Amended Bill of Complaint as Exhibit B.
“3. The Plaintiff was not, as a consequence of the Order adopted September 19, 1973, attached to the Amended Bill of Complaint as Exhibit C, relieved without forfeiture of paying the Defendant fifteen (15) days prior to the settlement date called for in Exhibit A, the additional $90,000.00 installment called for in that contract, nor was the Plaintiff relieved thereby of its obligation to settle with the record owners of the subject property.
“4. The Plaintiff has not established a right to an injunction prohibiting the Defendant from settling with the record owners of the subject property on the contract attached to the Amended Bill of Complaint as Exhibit A.
“5. The Plaintiff has not established a right to have a constructive trust impressed upon the subject property.
“6. The Plaintiff has not established its right to the entry of a judgment in its favor against the Defendant.
“7. The proper interpretation of the warranty contained in paragraph 10 of the Assignment of Contract attached to the Bill of Complaint as Exhibit B, which warranty reads as follows: ‘The Assignor warrants and represents that sanitary sewer and water facilities are, or will at settlement be at a property line of the subject property, and that the said property is sewerable and that the sewer is or will at settlement be available for connection, and in size sufficient to service the subject property for the purpose for which the Assignee intends to put the same; namely, the erection of nine (9) single family homes’ was fully performed by the Defendant because the sewer and water facilities were at the property lines of the lots which are the subject of this action and were available for connection at the time ot the execution of the Assignment of Contract dated April 7,1973.
“8. The Defendant is entitled to retain as liquidated damages pursuant to Paragraph 4 of the Assignment of Contract attached to the Bill of Complaint as Exhibit B, the $90,000.00 which was paid to him by the Plaintiff.”

The important phrase in the Assignment, “that the sewer is or will at settlement be available for connection” was, to be sure, expressed in the disjunctive, by use of the word “or”. Sneider contends that it was the intent of the parties that sewer be available for connection at the time of settlement, and that the warranty should be read as if the conjunctive “and” had been used. LaVay contends that the meaning of the disjunctive phrase is clear, and there is no ambiguity which requires judicial construction.

The chancellor agreed with LaVay’s contention. In his oral opinion, after noting that the contract contemplated an ultimate settlement upon the final completion of the subdivision — construction of all the facilities and their being in place, he said:

“With those purposes, which are manifest in the contract, we look to Paragraph 10 of the * * * assignment agreement containing the warranty provision. Then the significance of the phrases questioned becomes apparent and acute. If it was the intention of the assignor and the assignee that the warranty be a matter that necessarily subsisted at the time of settlement, there is no necessity for the expression in the present tense, because then it would be of no consequence necessarily to warrant that sewer and water facilities are at the present time available. There is no necessity for the phrase. The warranty could merely express itself as in the future — that at time of settlement the property would be sewerable and be available at the time of settlement.”
“My conclusion is that the intention of the parties was, by this phrase, that there is a warranty as to a current circumstance or, in the alternative, that it will prevail at a certain time. If it is available at this point, the assignee may exercise his elections and secure the availability. This is an option which apparently he bargained for, if you read the whole document. The contrary would be to consider the matter superfluous. I cannot assume a document involving matters of this magnitude, forfeitures, the express excuse of liability in the given circumstances, that they were not careful in the choice of their words.
“If they intended that it was to be a present warranty and a continuation of the circumstances as a condition precedent, an obligation under the contract, it seems to me from a reading of all of the documents that they would have included the word ‘and.’ This is not a matter which I am at liberty to conclude is inadvertence, because it is repeated twice. It is in the same paragraph, and very clearly in the disjunctive. For this reason I have concluded that the contract, or warranty, is with respect to the availability of sewer and water facilities either at the time of the assignment or at the time of settlement on the property.”

The Court of Appeals stated in Walton v. Hospital Association, 178 Md. 446, 13 A. 2d 627 (1940), at 450:

“The words of a guaranty should receive a fair and reasonable interpretation to effectuate the intention of the parties, and the circumstances accompanying the transaction may be considered in seeking the intention of the parties. The court should give the instrument that construction which will best accord with the intention, as manifested by the language in the light of all the surrounding circumstances, without stretching the words beyond their import in favor of the creditor or restricting them in aid of the guarantor.” (Citations omitted)

The Court further said, at 452:

“It is a cardinal rule of construction that the intention of the parties to a contract must prevail, unless inconsistent with some rule of law, and this intention must be gathered from the terms of the contract considered as a whole, and not from the clauses considered separately.”

In construing a contract of insurance the Court of Appeals said in First National Bank v. Maryland Casualty Co., 142 Md. 454, 121 A. 379 (1923), at 460:

“We will first determine in this case whether, by a proper construction of the contract of insurance, the contents of the safe deposit boxes were covered by the terms and provisions of the policy. To determine this question, we must ascertain the intention of the parties, gathered from the language employed by them, and in ascertaining that intention, we are to consider the character of the contract, its object and purpose, and the facts and circumstances surrounding the parties at the time of its execution, by which they would ordinarily be influenced in making it.”

A very apt and clear expression of the approach to be taken by a court applying principles of equity in construing a contract, was written by Mr. Justice White for the Supreme Court in O’Brien v. Miller, 168 U. S. 287, 42 L. Ed. 469, 18 S. Ct. 140 (1897), when he said:

“But the question presented involves not the interpretation of this language apart from the whole agreement, but is, on the contrary, the ascertainment of the meaning of the entire contract. The fallacy which underlies the assertion as to want of all ambiguity in the bond arises, therefore, from presupposing that in order to establish want of ambiguity in a contract a few words can be segregated from the entire context, and that because the words thus set apart are not intrinsically ambiguous, there is no room for construing the contract itself. In other words, the confusion of thought consists in failing to distinguish between the contract as a whole and some of the words found therein. If the erroneous theory were the rule, then, in every case, it would be impossible to arrive at the meaning of a contract, in the event of difference between the contracting parties, since each would select particular words upon which they relied, and thus frustrate a consideration of the whole agreement. The elementary canon of interpretation is, not that particular words may be isolatedly considered, but that the whole contract must be brought into view and interpreted with reference to the nature of the obligations between the parties, and the intention which they have manifested in forming them.”

In two recent cases dealing with construction of contracts, the Court of Appeals in Orkin v. Jacobson, 274 Md. 124, 332 A. 2d 901 (1975) and Billmyre v. Sacred Heart Hospital, 273 Md. 638, 331 A. 2d 313 (1975), reviewed and discussed numerous authorities. In Billmyre, Judge Singley said for the Court, at 642-43:

“We have long since passed the point in time where the clear and unambiguous language of an agreement will give way to what the parties thought the agreement meant or intended it to mean. [Citations omitted] Where a contract is plain and unambiguous, there is no room for construction, and it must be presumed that the parties meant what they expressed. [Citations omitted] When the language of a contract is clear, the true test of what is meant is not what the parties to the contract intended it to mean, but what a reasonable person in the position of the parties would have thought it meant. [Citations omitted] Chief Judge Bruñe summarized the matter for the Court in Slice v. Carozza Properties, Inc., 215 Md. 357, 368, 137 A. 2d 687, 693 (1958):
‘As we turn to the authorities, we may note first that the theory of “objective law” of contracts has been almost universally adopted by this time. The written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite understanding, or unless there is fraud, duress or mutual mistake. Ray v. Eurice, 201 Md. 115, 93 A. 2d 272. “ * * * where there has been an integration of an agreement, those who executed it will not be allowed to place their own interpretation on what it means or was intended to mean. The test in such case is objective and not subjective. * * * Willis ton * * * Sec. 94, page 294, says: ‘It follows that the test of a true interpretation of an offer or acceptance is not what the party making it thought it meant or intended it to mean, but what a reasonable person in the position of the parties would have thought it meant.’ ” Ray v. Eurice, supra, p. 127.’ ”

Whether construction of a contract is necessary or permissible is discussed in 17 Am.Jur.2d, Contracts, § 241, where it is said:

“As a general proposition, where the terms of a writing are plain and unambiguous, there is no room for construction, since the only office of judicial construction is to remove doubt and uncertainty. It is fundamental that the principles of construction cannot be applied to vary the meaning of that which is otherwise clear and unambiguous, and, in this respect, it is to be noted that if the language of the contract is plain and unambiguous, the intention expressed and indicated thereby controls, rather than whatever may be claimed to have been the actual intention of the parties. It has been said that it is only where the language of a contract is ambiguous and uncertain and susceptible of more than one construction that a court may, under the well-established rules of construction, interfere to reach a proper construction and make certain that which in itself is uncertain. As shown in subsequent sections, however, even where the language of a contract considered by itself has a plain, ordinary meaning, the language may sometimes be properly interpreted as having been used in a different sense.”

Strict rules of grammar need not always be applied. In 17 Am.Jur.2d, Contracts, § 278, it is stated:

“Although the grammatical construction of a contract is often a reliable signpost in the search for the intention of the parties, at times the language of a contract, read as a whole and in the light of the circumstances surrounding its execution, may disclose an intention which would be thwarted by a strict grammatical construction; in such case the court is not bound to follow the signpost of grammatical construction, particularly when it appears to point in the wrong direction. Intention may be formulated in terms that are not grammatical. Accordingly, while a court, in construing a contract, will give due force to the grammatical arrangement of the clauses, it will disregard the grammatical construction if it is at variance with the intent of the parties as indicated by the contract as a whole.”

Dealing specifically with the source of the difficulty in the present case, the same text says, in § 283:

“The words ‘or’ and ‘and’ in a contract will be changed to read ‘and’ and ‘or’ where it is plain that they were so intended to be used. These words should be interpreted in a copulative, and not in a disjunctive, sense when necessary to the spirit and intent of the document.”

In our view it is of little significance whether we arrive at the proper construction of the contract by finding its plain and unambiguous meaning, considered in the frame of reference of its subject matter, and its object or purpose, or whether we find an ambiguity and resolve it by a process of interpretation, considering all the surrounding circumstances, to ascertain the intention of the parties. We hold that the plain meaning of the contract of Assignment, and the intent of the parties to it, was that at the time of settlement sewer would be available for connection, so that Sneider, the assignee, could use the property for the declared purpose — the erection of nine single family homes.

While courts should, whenever possible, construe a contract so as to give effect to all parts of it, so that there will be no surplusage, this ideal is sometimes impossible to achieve. We think it would be impossible here. If LaVay’s warranty were satisfied by the availability of sewer for connection at either one of two specified times — the date of the Assignment or the date of settlement — then the entire warranty may have been surplusage. The parties knew that in one sense, sewer was available, at least potentially, at the time of the Assignment. It would be illogical to say that simultaneously with its making, the terms of the warranty were satisfied. We hold that the warranty that sewer would be available applied to the time of settlement. The chancellor erred in holding to the contrary.

The failure of the warranty of availability of sewer means, under the contract of Assignment, that all sums paid by Sneider to LaVay shall be refunded to Sneider, and the parties shall be relieved of all further liability to each other. The decree will be reversed and the case remanded for passage of a decree in accordance with this opinion. The decree may include a provision impressing a trust on the property in the hands of LaVay to secure payment of the sum to be refunded.

Because we hold that LaVay warranted that sewer would be available for connection at the time of settlement, it is not necessary to rule upon two other points raised and argued by Sneider — that the forfeiture was a penalty which equity should not enforce, and that independently of the warranty Sneider was entitled to rescind the contract because its commercial purpose was frustrated by an exercise of sovereign power.

We shall comment briefly on the rule that frustration of commercial purpose may, in certain circumstances, excuse performance of a contract. The Court of Appeals has discussed the rule in numerous cases, including Wischhusen v. American Medicinal Spirits Co., 163 Md. 565, 572-73, 163 A. 685 (1933); Fast Bearing Co. v. Precision Development Co., 185 Md. 288, 308-09, 44 A. 2d 735 (1945); State v. Dashiell, 195 Md. 677, 689, 75 A. 2d 348 (1950); Montauk Corp. v. Seeds, 215 Md. 491, 498-500, 138 A. 2d 907 (1958); Acme Markets v. Dawson Enterprises, 253 Md. 76, 90-91, 251 A. 2d 839 (1969). In Equitable Trust v. Towson Manor, 27 Md. App. 420, 429-32, 340 A. 2d 759 (1975), wc found the rule inapplicable to the facts.

Among these cases cited, the statement perhaps most applicable to the present case is found in Montauk Corp. v. Seeds, supra, where the Court said, at 499-500:

“The courts have generally held that if the supervening event was reasonably foreseeable the parties may not set up the defense of frustration as an excuse for non-performance. The majority of the courts stress this principle in deciding cases on frustration, and hold that if the parties could have reasonably anticipated the event, they are obliged to make provisions in their contract protecting themselves against it.”

In our view of the present case the supervening event was reasonably foreseeable. The parties knew that for almost three years there had been restrictive, although not prohibitory, orders or regulations regarding sewer hookups. Sneider did make provision in the contract protecting itself against the reasonably anticipated prohibitory order. The rule of commercial frustration is inapplicable because its application is not necessary.

Decree reversed.

Case remanded for passage of a decree in accordance with this opinion.

Appellee to pay costs.


source: Caselaw Access Project

author: Powers, J.,

license: Public Domain

text:
    ANTHONY SYLVESTER FISHER v. STATE OF MARYLAND
    [No. 897,
    September Term, 1974.]

      Decided October 3, 1975.

      The cause was argued before Morton, Powers and Menchine, JJ..

      C. Daniel Saunders, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Thomas J. Clark, State’s Attorney for Queen Anne’s County, on the brief, for appellee.
   Powers, J.,

delivered the opinion of the Court.

The Defense of Entrapment

When the law of entrapment comes to an appellate court the case invariably presents questions not only of the substantive law, but of procedure for applying that law to the evidence in the case.

In Simmons v. State, 8 Md. App. 355, 259 A. 2d 814 (1969), Judge (now Chief Judge) Orth, for this Court, wrote a comprehensive review, both of the substantive law relating to the defense of entrapment, and of the correct procedures for applying that law. We cited and discussed cases in which the Court of Appeals had expressed itself on the subject. We noted that that Court had “recognized that there were two divergent views held by respected authorities concerning the conditions under which entrapment should apply”, but had expressly not adopted either view. We discussed those views, and their sources. Those sources were the majority opinions of the Supreme Court of tho United States in Sorrells v. United States, 287 U. S. 435, 77 L. Ed. 413, 53 S. Ct. 210 (1932), Sherman v. United States, 356 U. S. 369, 2 L.Ed.2d 848, 78 S. Ct. 819 (1958), and Masciale v. United States, 356 U. S. 386, 2 L.Ed.2d 859, 78 S. Ct. 827 (1958), which held one view, and the concurring opinions in Sorrells and Sherman and the dissent in Masdale, all espousing the other.

We felt in Simmons that it was advisable to adopt a rule regarding the defense of entrapment. We did so, following Sorrells, Sherman, and Masdale. The Court of Appeals approved in Grohman v. State, 258 Md. 552, 267 A. 2d 193 (1970). The Court quoted extensively from Simmons, and termed it “a clear cut expression of the view adopted by Maryland * * * .”

In expressing the rule we said in Simmons, at 360-61:

“We construe the opinion of the Court in Sorrells as enunciating what has been termed the ‘origin of interest’ test. This test was stated in substance by Judge Learned Hand in United States v. Sherman, 200 F. 2d 880 (2d Cir. 1952). Probing the aspect of inducement he concluded that in Sorrells ‘all the Court agreed as to the meaning of inducement: it was that someone employed for the purpose of the prosecution had induced the accused to commit the offense charged which he would not have otherwise committed.’ At 882. Inducement was further explained in Sherman v. United States, 356 U. S. 369, at 372:
‘ * * * [T]he fact that government agents “merely afford opportunities or facilities for the commission of the offense does not” constitute entrapment. Entrapment occurs only when the criminal conduct was “the product of the creative activity” of law-enforcement officials. (Emphasis supplied.) See 287 U. S. at pages 411, 451, 53 S. Ct. at pages 212, 216. To determine whether entrapment has been established, a line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal.’ ”

We quoted further, 8 Md. App. at 362, from the comments of Judge Learned Hand, when he said:

“ ‘ * * * [I]t is a valid reply to the defense, if the prosecution can satisfy the jury that the accused was ready and willing to commit the offense charged, whenever the opportunity offered. In that event the inducement which brought about the actual offense was no more than one instance of the kind of conduct in which the accused was prepared to engage; and the prosecution has not seduced an innocent person, but has only provided the means for the accused to realize his pre-existing purpose. * * *
“ ‘ Therefore in such cases two questions of fact arise: (1) did the agent induce the accused to commit the offense charged in the indictment; (2) if so, was the accused ready and willing without persuasion and was he awaiting any propitious opportunity to commit the offense. On the first question the accused has the burden; on the second the prosecution has it.’ ”

Our reliance upon Sorrells and Sherman as persuasive, although not binding, was not misplaced. Very recently, the Supreme Court, in United States v. Russell, 411 U. S. 423, 36 L.Ed.2d 366, 93 S. Ct. 1637 (1973), adhered to the view of entrapment it had first adopted in Sorrells in 1932 and had reaffirmed in Sherman in 1958. The Court reversed an order of the U. S. Court of Appeals for the Ninth Circuit, which itself has reversed a conviction in a jury trial in the U. S. District Court, for having unlawfully manufactured and processed and sold a prohibited drug. At the trial of the Russell case in the District Court, the judge had given what the Supreme Court referred to as a standard entrapment instruction, the substance of which was not at issue in the case. The facts show that a Federal narcotics agent had approached Russell and his two codefendants, all of whom the agent suspected of manufacturing methamphetamine. He offered to supply them with one of the chemical components which was difficult to obtain, in exchange for a share of the drug they produced. They accepted the proposal and, using the chemical supplied by the agent along with other chemicals, did manufacture the drug. The Court, after referring to Russell’s argument that on the facts there was entrapment as a matter of law, said, at 427:

“The Court of Appeals agreed, although it did not find the District Court had misconstrued or misapplied the traditional standards governing the entrapment defense. Rather, the court in effect expanded the traditional notion of entrapment, which focuses on the predisposition of the defendant, to mandate dismissal of a criminal prosecution whenever the court determines that there has been ‘an intolerable degree of governmental participation in the criminal enterprise.’ In th;s case the court decided that the conduct of the agent in supplying a scarce ingredient essential for the manufacture of a controlled substance established that defense.”

Mr. Justice Rehnquist, speaking for the Court, pointed out that in Sorrells and in Sherman the principal element in the defense of entrapment was held to be the defendant’s predisposition to commit the crime, while the concurring opinions in both cases would make the essential element of the defense turn on the type and degree of governmental conduct. The Court said, at 435:

“Those cases establish that entrapment is a relatively limited defense. It is rooted not in any authority of the Judicial Branch to dismiss prosecutions for what it feels to have been ‘overzealous law enforcement,’ but instead in the notion that Congress could not have intended criminal punishment for a defendant who has committed all the elements of a prescribed offense but was induced to commit them by the government.”

The Court declined to “reconsider” the theory of the entrapment defense as it is set forth in the majority opinions in Sorrells and Sherman. It said, at 434-35:

“We are content to leave the matter where it was left by the Court in Sherman:
‘The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, “A different question is presented when the criminal design originates with the officials of the government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.” ’ ”

Having examined and discussed the substantive law in Simmons v. State, supra, we turned to questions of procedure. We said, at 364-65:

“The defense of entrapment having been raised, the issue of whether a defendant has been entrapped is for the trier of fact as part of its function of determining the guilt or innocence of the accused. Thus it is a matter of the sufficiency of the evidence. The burden as to the first question — did the police, directly or through their agent,, induce the defendant to commit the offense charged in the indictment — is on the defendant. This may be established by a preponderance of the evidence. The burden as to the second question — was the defendant’s criminal conduct due to his own readiness and not to the persuasion of the police, that is, did he have a predisposition to commit the offense — is on the State. This must be established, beyond a reasonable doubt. The question of the-sufficiency of the evidence would be raised by motion for judgment of acquittal. In a jury trial if the motion is denied, the issue of entrapment would-be submitted to the jury with appropriate instructions.”

It should here be emphasized that the defense of entrapment cannot be considered as “having been raised” — that entrapment cannot become an issue for the trier of the facts — unless there is sufficient evidence which, if deemed weighty and credible by the trier of the facts, would support a finding that the police, directly or through their agent, induced the defendant to commit the offense charged. Unless there is evidence to show inducement, the second question — predisposition — is irrelevant.

The initial test of the evidence, within the framework of the substantive law of entrapment, is always a matter of law for the court. The question to be decided depends upon how the question is raised. A motion for judgment of acquittal based upon that defense requires the court to decide whether there is undisputed evidence, so clear and decisive that reasonable minds, applying the correct law, could not differ in finding that the defendant was induced by the police to commit the offense, and that his criminal conduct was due to the persuasion of the police, and not to his own readiness or predisposition to commit the offense. Only when such is the state of the evidence is there entrapment as a matter of law.

In considering a motion for judgment of acquittal on the ground of entrapment, the court is concerned only with sufficiency of the evidence, and in these aspects:

1. Is the evidence, whatever its source, sufficient to support a finding that the defendant was induced by the police or their agent to commit the offense? If there is not, the defense is not “raised”, and the motion must be denied.
2. If the evidence is sufficient to support the finding, is the evidence also sufficient to support a finding that the defendant was not induced? If so, there is an issue of fact, and the motion must be denied.
3. Even if the evidence shows inducement as a matter of law, is the evidence sufficient to support a finding that the defendant’s criminal conduct was due to his own readiness or predisposition to commit the offense? If so, there is an issue of fact, and the motion must be denied.
4. If the evidence shows inducement as a matter of law, and also shows as a matter of law that the defendant’s criminal conduct was due solely to that inducement, and not to his own readiness or predisposition to commit the offense, then as a matter of law there is entrapment, there is no issue of fact, and the motion must be granted.

In this test of legal sufficiency, the court is not concerned with any burden of proof. A burden of proof is a yardstick used only by the trier of the facts in performing the function of assessing weight and credibility of evidence.

When the defense of entrapment is raised, and there are issues of fact, as in our examples 2 and 3, those issues are to be resolved by the trier of the facts, with due consideration to any applicable burden of proof. If the trier of the facts is a jury, the court shall, upon request, give appropriate advisory instructions on the law of entrapment. Byrd v. State, supra, at 400, note 3.

The Present Case

Anthony Sylvester Fisher, appellant here, was found guilty by a jury in the Circuit Court for Queen Anne’s County of distribution and possession of heroin. After Fisher’s motion for a new trial was heard and denied, a sentence of eight years was imposed.

On appeal, Fisher raises three issues which he says constitute reversible errors:

(1) the admission in evidence of the alleged heroin “despite gross defects in the chain of custody”;
(2) prejudicial comments by the trial judge regarding those defects; and
(3) the trial judge’s refusal to instruct the jury on the law of entrapment.

The evidence showed that on 4 March 1974 Trooper John R. Davis of the Maryland State Police gave Fisher $20 for which Fisher delivered to him aluminum foil packets containing what laboratory analyses proved was heroin. Fisher readily admitted his participation in the transaction, but contended that he was entrapped.

The events which led to Fisher’s convictions were related to the jury by Davis, who was called as a witness for the State, and by Fisher himself, who testified in his own defense. According to Davis, in January of 1974 he began an undercover investigation of the narcotics traffic in the Kent Narrows area of Queen Anne’s County. On 4 March 1974 at about 7:30 P.M., Davis and an informant named Terry Brazwell were seated in Davis’s parked car at Asbury’s Place, a tavern in Kent Narrows. Davis knew the tavern to be a place, frequented predominantly by Negroes, where narcotics transactions were conducted. From the car Davis and Brazwell saw Fisher and a companion named Scull walking in the parking lot of the tavern. Brazwell knew Fisher personally; Davis did not. Brazwell called to Fisher and Scull and asked them if there was any dope in the area. Fisher replied that there was none now but that everyone was waiting for “Smitty” to return from Baltimore City with heroin. Fisher and Scull got in the back seat of Davis’s car and the foursome conversed for about half an hour, primarily about subjects other than drugs.

Trooper Davis testified that he knew “Smitty” to be one Earl Sylvester Baily. He said he asked when “Smitty” would arrive. Fisher said that they didn’t know, that everybody was waiting. Davis told Fisher that he was looking for heroin. Fisher replied that he didn’t know whether “Smitty” would sell to Davis. At about 8:10 P.M. Baily’s car arrived in the parking lot. Baily and a companion unknown to Davis got out. A large crowd approached Baily. Fisher, who had been watching Baily’s arrival from Davis’s car, said, “Let me out of the car. I’ll go see what’s going on.” Fisher walked over to Baily. In a few minutes, Fisher returned to the car and told Davis that “Smitty” himself was not selling, that he had a runner selling for him. Davis asked Fisher, “Well, can I meet him? I want to get some smack.” Davis’s testimony continued:

“Mr. Fisher then advised me I was not of the right color. The street pusher would not sell to me because I was white.
“Mr. Fisher further advised me that he would purchase the heroin for me. As he was going to get some himself, he would purchase a quantity for me.
“At this time, I handed Mr. Fisher $20 in U.S. currency. Mr. Fisher took the $20, went over to Asbury’s Place, went inside the establishment. I lost contact with Mr. Fisher.
“Mr. Fisher returned a few minutes later, walked directly to me, handed me two envelopes and said, ‘Here’s your stuff.’ And at this time, Mr. Fisher terminated contact with me and left the area of my vision.”

Davis identified Fisher in court without objection.

Fisher presented a somewhat different version of the transaction. He stated that he gave the two bags not to Davis but to Brazwell, with whom he had been “close friends” for six or seven years. Fisher insisted that “the only reason why I went and got the drugs for him was because Terry was sitting in the car and I knew him.” On direct examination, Fisher said:

“Q [By defense counsel] Now, did you have an idea — did you believe that this package was for Brazwell or were they for the Trooper?
A Well, I thought they was for the both of them, one for each one of them, I guess. I didn’t know. I didn’t even ask them.
Q Did you offer to go in and —
A No, I didn’t. Trooper Davis asked me to go and get them for him.
Q He just asked you out of the clear blue?
A Yes, he asked me would I go get him two bags of heroin and they —
Q Well, why didn’t you say, ‘Go get it yourself’ ?
A Well, I told him that he couldn’t get it because he was white, and the onliest reason why I done it — because of Terry.
Q Didn’t you feel like you were going out on a limb for somebody that you didn’t even know?
A For him, yes, but not for Terry.
Q Why did you do it all of a sudden?
A Because — the onliest reason why I done it, like I said before, because I knew Terry and Terry had told me that they was in prison together — been in jail — and they had got out the same day and that he knew him in jail. This is what Terry told me, and so I trusted Terry’s word.”

On cross examination Fisher testified that he had never seen Trooper Davis before, but that it was Davis who asked where he could get some drugs. Fisher admitted that at the time he was himself a heroin user. He learned that drugs would be available that evening from one of his suppliers. Fisher said that he told Davis that Davis was not the right color, that he took $20 from Davis, and that he purchased two bags in aluminum foil which he gave to Brazwell, who got out of the car also. He said that when Davis “asked me to go get two bags * * * I just goes and get them and brings them back and that’s it. There was no purpose. I just did it out of friendship with Terry.”

When counsel conferred with the presiding judge, James A. Wise, on instructions to be given to the jury, Fisher’s counsel requested an instruction on the law of entrapment. Judge Wise declined to give such an instruction. Counsel excepted, in a manner which we consider adequate to preserve the point for appeal.

The ruling was clearly correct. The evidence was not sufficient to get Fisher over the first hurdle. There was utterly no showing of inducement. There was no legally cognizable issue involving the law of entrapment. The defense cannot be raised by argument, it may be raised only by evidence. There was no evidence here to raise it.

The testimony describing the transaction contained two conflicts. Fisher said that Trooper Davis asked him to get the heroin for him, and also said that he delivered it to Brazwell, not to Davis. Davis said that Fisher volunteered to get the heroin, and that it was delivered to him, not to Brazwell. Whichever is the true version of either aspect of the transaction, the result is the same.

Other Contentions

Appellant makes two other contentions in this appeal, neither of which has any substantial merit. Since one arose from the other we shall comment upon them together.

Trooper Davis testified that when he took the suspected heroin back to the undercover headquarters from which he and other troopers were operating at the time, he put the packets in an evidence envelope, made up the necessary identifying papers, and sealed the envelope. The weight was recorded as .6 grams. Trooper Davis testified that later he took that same envelope to the State Police Laboratory and turned it over to the chemist there, whose later analysis showed that the substance contained heroin. The chemist recorded the weight as .8 grams.

Appellant argues that this apparent discrepancy in the weight somehow indicates a break in the chain of custody of the material.

The evidence concerning the custody clearly excludes any reasonable probability that someone tampered with the heroin. Breeding v. State, 220 Md. 193, 151 A. 2d 743 (1959). We cannot see how the apparent weight discrepancy, even though not satisfactorily explained, could lead to a conclusion that the substance analyzed by the chemist was not the same substance obtained by Trooper Davis from Fisher.

When Trooper Davis was questioned about the discrepancy and asked if he could explain it, he merely commented that the scale they were using was an old one and that the scale at headquarters was modern. When counsel for Fisher attempted to question Trooper Davis further about the scale, the trial judge commented that the trooper was not an expert who could explain why the scale didn’t work right and that he was not responsible for it. Fisher contends that the comments by the judge were prejudicial to him. We do not agree.

Judgments affirmed.

      . In United States v. Russell, supra, and in Masciale v. United States, supra, the Supreme Court held that the evidence did not establish entrapment as a matter of law, and that the question was properly submitted to the jury. In Sherman v. United States, supra, the Court held that there was entrapment as a matter of law, and that the question should not have been submitted to the jury. In Sorrells v. United States, supra, the Court held that the defense was raised, that the accused was entitled to have it considered, and that the trial court erred in holding that as a matter of law there was no entrapment.
      In Hummelshime v. State, 125 Md. 563, 93 A. 990 (1915) and Callahan v. State, 163 Md. 298, 162 A. 856 (1932), the Court of Appeals commented upon arguments of enticement, inducement, or entrapment, but observed that such questions were not before the Court for determination.
      The first entrapment case to reach the Court of Appeals after Maryland judges were empowered to rule on sufficiency of evidence in criminal cases, and to give advisory instructions, was Ferraro v. State, 200 Md. 274, 89 A. 2d 628 (1952), tried below without a jury. The Court said that there was no evidence legally sufficient to support the defense of entrapment — certainly not to support a peremptory verdict of acquittal.
      In no case has the Court of Appeals held that the evidence showed entrapment as a matter of law. In a non-jury trial the question could arise only in that posture. It may appear as a contention that the trial judge was clearly erroneous in reaching a verdict of guilty, which legally is the same thing. Williams v. State, 5 Md. App. 450, 459-60, 247 A. 2d 731 (1968), cert. denied, 252 Md. 734 (1969). See Matthews v. State, 228 Md. 401, 179 A. 2d 892 (1962); Stewart v. State, 232 Md. 318, 193 A. 2d 40 (1963); Snead v. State, 234 Md. 63, 197 A. 2d 920 (1964); Cross v. State, 235 Md. 377, 201 A. 2d 767 (1964); Pointer v. State, 239 Md. 641, 212 A. 2d 260 (1965); and Smith v. State, 242 Md. 712, 219 A. 2d 16 (1966).
      Even in those Court of Appeals cases which were tried below before a jury it appears that the entrapment question arose in the same posture. In Baxter v. State, 223 Md. 495, 165 A. 2d 469 (1960), cert. denied, 366 U. S. 968 (1961), the Court said that the evidence did not support a peremptory verdict of acquittal. In Lane v. State, 226 Md. 81, 172 A. 2d 400 (1961). cert. denied, 368 U. S. 993 (1962), the Court merely said that the conduct which the appellant contended amounted to entrapment was permitted police activity. In Whyte v. State, 229 Md. 459, 184 A. 2d 738 (1962), the Court said that the claim of entrapment was groundless — the issue was submitted to the jury on proper instructions.
      Grohman v. State, 258 Md. 552, 267 A. 2d 193 (1970), cert. denied, 401 U S. 982 (1971), was a contempt case, which the Court said was in the nature of a criminal contempt proceeding. The Court held that entrapment was available as a defense, but that the evidence did not support it.
      Entrapment has been claimed in numerous cases before this Court. Cases which were tried below without a jury are Jarrett v. State, 1 Md. App. 448, 230 A. 2d 683 (1967); Simmons v. State, 8 Md. App. 355, 259 A. 2d 814 (1969); Rettman v. State, 15 Md. App. 666, 292 A. 2d 107, cert. denied, 266 Md. 741 (1972); Hignut v. State, 17 Md. App. 399, 303 A. 2d 173 (1973); and Schuman v. State, 19 Md. App. 400, 311 A. 2d 460 (1973), cert. denied, 271 Md. 743 (1974). In each of them we found that the evidence supported the conviction.
      In these jury cases we held that there was no evidence of entrapment: Dolan v. State, 1 Md. App. 292, 229 A. 2d 443 (1967); Gamble v. State, 2 Md. App. 271, 234 A. 2d 158 (1967); Holt v. State, 3 Md. App. 544, 240 A. 2d 355, cert. denied, 251 Md. 750 (1968); and Poff v. State, 4 Md. App. 186, 241 A. 2d 898, cert. denied, 251 Md. 751 (1968). In Gill v. State, 11 Md. App. 593, 275 A. 2d 505, cert. denied, 262 Md. 747 (1971), and in Berlin v. State, 12 Md. App. 48, 277 A. 2d 468, cert. denied, 263 Md. 710 (1971), we held that the defendant was not entitled to a judgment of acquittal on his defense of entrapment.
      In all of these cases, jury or non-jury, the legal effect of our holding, however we expressed it, was that the evidence did not, as a matter of law, show entrapment.
      In Regle v. State, 9 Md. App. 346, 264 A. 2d 119 (1970), in which we reversed on other grounds, we said that the defense of entrapment is applicable in conspiracy cases.
      In Byrd v. State, 16 Md. App. 391, 297 A. 2d 312 (1972), we held that the defense of entrapment was “raised” and that the trial judge erred in not granting a requested advisory instruction on entrapment.

      . “Induce” is defined in The American Heritage Dictionary of the English Language as meaning: “To lead or move by influence or persuasion; to prevail upon.”


author: Melvin, J., Powers, J.,

text:
    HAROLD GARRISON v. STATE OF MARYLAND
    [No. 1128,
    September Term, 1974.]

      Decided October 3, 1975.

      The cause was argued before Powers, Gilbert and Melvin, JJ.

      Gerald A. Kroop, Assigned Public Defender, for appellant.

      David B. Allen, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Milton B. Allen, State’s Attorney for Baltimore City, and Nathaniel Moorehead, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court. Powers and Gilbert, JJ., concur and Powers, J., filed a concurring opinion in which Gilbert, J., concurs at page 277 infra.

Following a non-jury trial in the Criminal Court of Baltimore, Harold Garrison, also known as “Truck”, was convicted of the felony of unlawful possession of heroin in sufficient quantity to indicate an intent to distribute it. (Code Art. 27, §286 (a)(1).

Tn this appeal the appellant contests the correctness of the trial judge’s denial, after an evidentiary hearing, of two pre-trial motions to suppress certain evidence. The evidence sought to be suppressed was ultimately introduced at the trial over appellant’s timely objections. The basis for the pre-trial motions to suppress and the objections at trial was that the challenged evidence was obtained by the police as a result of their allegedly unlawful entry into and search of the apartment building where appellant was a tenant. In short, the appellant invokes the doctrine of the “fruit of the poisonous tree”, claiming the alleged illegal entry and search to be the “poisonous tree” and the information gained and evidence found as a result thereof to be the “fruit” and therefore inadmissible against him under well-established exclusionary rules enunciated by the U. S. Supreme Court and thus binding upon the courts of this state. Mapp v. Ohio, 367 U. S. 643 (1961).

More specifically, appellant claims that the information gained by the alleged illegal police activity should not have been used to form the basis of a probable cause affidavit for a search and seizure warrant pertaining to the basement of the appellant’s apartment building where, pursuant to the warrant, heroin was seized by the police and introduced as evidence at trial over appellant’s timely objection, and that without this information there was no probable cause for the issuance of a warrant to search the basement. He therefore claims that the doctrine of the “fruit of the poisonous tree” bars as evidence against him not only the information gained by the police during the prior alleged illegal search but the tangible evidence (170 packets of heroin) subsequently found by the police as a result of that information.

In Everhart v. State, 274 Md. 459 (1975) the Court of Appeals, speaking through Judge O’Donnell, said at 479-80:

“In applying the criteria laid down by the Fourth Amendment and as established by the opinions of the United States Supreme Court applying that Amendment, as prescribed in Kerr v. California, 374 U. S. 23, 33-34, 83 S. Ct. 1623, 10 L.Ed.2d 726 (1963), we find that the hpldings in Silverthorne Lumber Co. v. United States, supra, in Nardone v. United States, 308 U. S. 338, 60 S. Ct. 266, 84 L. Ed. 307 (1939), in Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L.Ed.2d 441 (1963), and in Alderman v. United States, 394 U. S. 165, 89 S. Ct. 961, 22 L.Ed.2d 176 (1969), as explicated in Carter v. State, supra [274 Md. 411], compel the conclusion that if data set forth as a basis for the existence of probable cause in an application for a search warrant, was come upon or derived as a result of an illegal search and seizure, such primary illegality in the absence of evidence of attenuation or a source independent of such ‘taint’ precludes the use of such derivative evidence from being a valid basis for establishing the existence of probable cause, under the doctrine of the fruit of the poisonous tree. ’ (Emphasis added)
As was stated by Mr. Justice White in writing for the majority in Alderman v. United States, supra, quoted with approval in Carter v. State, supra [at 435]:
‘If the police make an unwarranted search of a house and seize tangible property belonging to third parties — even a transcript of a third-party conversation — the homeowner may object to its use against him, not because he had any interest in the seized items as ‘effects’ protected by the Fourth Amendment, but because they were the fruits of an unauthorized search of his house, which is itself expressly protected by the Fourth Amendment. Nothing seen or found on the premises may legally form the basis for an arrest or search warrant [Emphasis in original] or for testimony at the homeowner’s trial, since the prosecution would be using the fruits of a Fourth Amendment violation. ’ ” (Emphasis added)

The Court of Appeals further said in Everhart, supra, at 481-82:

“The doctrine of the fruit of the poisonous tree’ extends the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search; in its broadest sense it prohibits the prosecution from using in any manner, prejudicial to the accused, information derived from facts learned as a result of the unlawful acts of law enforcement agents. Once a defendant, with requisite standing, has timely and factually asserted that the challenged evidence was derived from information obtained in an unlawful search and seizure, the court must afford him an opportunity to explore in detail the circumstances under which the evidence was acquired; if the defendant establishes that the evidence resulted from an unlawful search and seizure such evidence cannot be used at all unless the prosecution can convince the trial court that it had an independent origin or that the information gained in the unlawful search did not lead directly or indirectly to the discovery of the challenged evidence. ” (Emphasis added)

At the evidentiary hearing afforded the appellant on his motions to suppress, the affidavit supporting the issuance of the search and seizure warrant was introduced. The affidavit in relevant part reads as follows:

“Affidavit in support of a Search and Seizure warrant for the premises of: 839 Druid Park Lake Drive Apartment Al, described in this affidavit as a three story white multiple dwelling known as: Lake Side Apartments.
Also in support for the person of: Harold Garrison N/male, O.O.B. 1/28/37, 6'0, 175 lbs. B. of I. 97-976, who is also known by the alias name, “TRUCK”.
Also in support for the basement of 839-841 Druid Park Lake Drive which is known by your affiants to contain Laundry facilities for the occupants of 839-841 Druid Park Lake Drive — Lake Side Apartments (basement also contains Large area which is gained entrance by a metal firedoor, with Lock on same.)”
“During the fourth week of June, 1973, your affiants received information from a reliable informant that Harold Garrison alias “Truck” was presently distributing bundles of heroin from 839 Druid Park Lake Drive Apt. Al. The informant further stated that he has been purchasing heroin from “Truck” for the past two weeks. The informant stated that he would call Truck 728-4568 (investigation revealed that 728-4568 was listed to: Virginia B. Garrison, 839 Druid Park Lake Drive Apt. Al.) and inform “Truck” that he was coming over to “Re-Up” (term meaning to resupply). The informant stated he would then enter 839 Druid Park Lake Drive (Lake Side Apts.), walk down a hallway and knock on the door with A1 written on the door.
“Truck” would then open the door (door does have additional locks) and escourt the informant to the kitchen where the informant would hand over to “Truck” the money. (“Truck” is selling bundles (20 tinfoil bags) for $250.00 which is wrapped in tinfoil) “Truck” would then leave the informant in the kitchen and leave the apartment with keys. After approximately 3 — 4 minutes “Truck” would return and give to the informant one bundle (20 tinfoil bags of heroin). The informant would then depart.
Again during the fourth week of June, 1973, your affiants placed the premises of 839 Druid Park Lake Drive under observations. After approximately one hour Harold Garrison was seen parking a Blue Volkswagen Temp. Tags E81078. “Truck” then entered 839 Druid Park Lake Drive. All three of your affiants are familiar with “Truck”.
And know him on sight.
Again during the 4th week of June 1973 your affiants contacted the informant who stated that “Truck” was continuing to sell bundles of heroin for $250.00 and employing the same method of distribution. The informant stated he knows this to be true for he had returned to 839 Druid Park Lake Drive Apt. Al and purchased another bundle since he last talked to your affiants.
It was then agreeded that a Controlled Purchase of Narcotics would be made from “Truck” in order to attempt to find and locate “Truck’s” hiding place for the heroin. On June 30, 1973 your affiants along with the informant went to the area of the 800 Block Druid Park Lake Drive. Detective James Welsh then searched the informant and found him to be free of money, drugs and other items.
James Welsh then gave the informant $250.00 of departmental funds. At this time your 1st and Third officers (Det. T. West and R. Murrey) entered 839 Druid Park Lake Drive along with the informant. The informant was observed by both detectives to knock on apt. Al. The informant then entered apt. Á1. After approximate two minutes, both detectives observed Harold Garrison alias “Truck” come out of apt. Al and proceed to walk down the hall. At this time both detectives positioned themselves in the basement behind the steps leading down to the basement. Both detectives then observed “Truck” entered the basement walk to the end and then produced a key to a metal fire-door. “Truck” then entered this large vacant room and both detectives lost sight of him. After approximately one minute
“Truck” reappeared and relocked the door. “Truck” then turned to exit the basement and at this time both detectives observed in “Truck’s” right hand one tinfoil packet A approximately the size of a egg) “Truck” then walked back up the stairs and was observed by both detectives to re-enter 839 Druid Park Lake Drive Apt. A1 ("Truck” opened the door to apt. A1 with a key).
After approximately two minutes the informant walked out of apt. Al and walked directly to Detective James Welsh (followed by both detectives). The informant then gave to Detective James Welsh one tinfoil packet containing 20 smaller tinfoil packets of a white powder. The informant was again searched by Det. James Welsh and found to be free of money, drugs
And other items. The informant then stated to your affiants that he had entered apt. Al and was again escourted to the kitchen where he gave to “Truck” $250.00. “Truck” then left the apartment and returned approximately 4 minutes later and gave to the informant one tinfoil packet with 20 smaller tinfoil packets. The informant then departed.
The suspected heroin was then field tested by Det. James Welsh (marquis test kit) and a positive reaction was obtained for a opiate-evidence submitted to crime lab for further chemical analysis by Det. James Welsh. C.C. # SF 67-36.” (Emphasis added)

The affidavit was signed by the three Baltimore City police detectives mentioned in the affidavit, Detectives West, Murrey and Welsh. Other portions of the affidavit established the training and experience of the three detectives as well as the reliability of the unnamed informant. On presentation of the affidavit the District Court judge in Baltimore issued a warrant authorizing a search of 1) apartment Al, 2) the person of the appellant, and 3) the basement of 839-841 Druid Park Lake Drive.

Appellant does not dispute that based on the informant’s information set out in the affidavit there was sufficient probable cause for the issuance of a warrant to search apartment Al and the person of the appellant. However, he vigorously asserts the illegality of the warrant as to the basement, claiming as set forth, infra, that the probable cause for searching the basement was only obtained by means of the prior alleged illegal entry into the apartment building and its basement. The State does not dispute that indeed the only probable cause shown for a search of the basement was the observations made by detectives West and Murrey while they were, to use Detective Murrey’s words, “secreted in the basement under the steps” at approximately 2:35 A. M. on June 30, 1973, some six hours before the warrant was obtained.

In executing the warrant the three detectives, at approximately 8:30 A. M. on June 30, 1973, went first to the basement and broke off the padlock on the fire door to the large empty room they had seen appellant enter at 2:35 A. M. that same date. In a corner of the room they found an electric cord “tied around one of the pipes and dropped down inside the wall”. The other end of the cord, which was out of sight, was found to be tied to a lady’s black hand bag containing 170 tin foil packets of heroin. This was the heroin introduced at the trial in chief over appellant’s objection. The officers then went to Apartment Al and recovered “from Mr. Garrison’s person . . . one key which fitted (sic) the padlock which secured” the basement room where the heroin had been found. No other inculpatory evidence was found in the apartment. Appellant was then placed under arrest and “charged with possession of heroin”.

In addition to the affidavit, other evidence adduced at the pre-trial suppression hearing established that tenants in the apartment building had no permission to use the large basement room where the heroin was found. On this evidence the trial judge ruled that when the appellant entered that room he became a trespasser and as such had no standing to claim his Fourth Amendment rights had been violated, even though the police may also have been trespassers when they entered the building and hid behind the basement steps to observe the appellant.

We think that in the particular circumstances of this case the appellant did have standing and that the trial judge was in error'in not suppressing as evidence both the observations of the police detectives inside the apartment building and the tangible evidence found as a result thereof.

Standing To Object to Police Observations

To determine properly the issue of standing it is necessary to describe more fully the layout of the apartment building. Evidence, including photographs and diagrams, at the suppression hearing showed that the building is a three story frame structure located at 839-841 Druid Park Lake Drive in Baltimore City. There is one front entrance to the building consisting of a solid single door 3 feet wide. No. 839 is the address of the apartments on the left hand side of the entrance and No. 841 the address of those on the right hand side. There are “approximately thirteen apartments” in the building. There are four apartments on the first floor.

The front door of the building opens into a small vestibule 8 feet wide and 5 feet deep. To reach the first floor apartments one must ascend 4 steps from the vestibule to a “1st floor landing”, approximately 4 feet deep and 8 feet wide. One apartment opens directly onto the landing. The other three first floor apartments open onto a narrow hallway leading from the “1st floor landing” to the rear of the building. The hallway varies in width from 3-V2 feet to 2 feet 8 inches. The door to appellant’s apartment (Al) is at the rear of the hallway, a distance of 49 feet from the 1st floor landing.

The resident manager of the building testified that the entrance door to the building is kept locked and only the tenants, the resident manager and building superintendent have keys to the door. Anyone visiting tenants would have to call the tenants by telephone from outside the building “and they would come down” and unlock the door. He further testified, however, that “if you had a key to the front door and came in and forgot to lock it back again then it would be unlocked”.

Beside the steps leading from the vestibule to the 1st floor landing is a door leading to the basement. This door is also kept locked. It is the only access to the basement. Aside from the building superintendent and manager, only tenants have keys to this door. The tenants are issued keys so they can use the washing machines in the “laundry room” located in the basement. There is evidence that at the time of the suppression hearing (March 15, 1974), there was a sign on the basement door reading “Laundry Room, Open - 7:30 A. M., Closed — 9:30 P. M”. But there is no evidence that any such sign was posted on June 30, 1973, or that the appellant was ever told he could not enter the basement with his key after 9:30 P. M.

In addition to the laundry room there are two or three other rooms in the basement. The doors to these other rooms were kept locked and no tenants were permitted in them. The entrance to one of these rooms is through a metal fire door. On June 30, 1973, the door was locked with a padlock. The maintenance superintendent testified that he put a keeper on the door in May or June, 1973, because “they had to buy a lock because they had trouble before with some people”. The record is silent as to who “they” are. The witness further said he did not put the padlock on the door and did not know who did. It was this large empty room, 18 feet by 47 feet, that Detectives Murrey and West observed appellant enter at 2:35 A. M. on June 30, 1973, and from which they saw him emerge carrying a tinfoil packet the size of “a (sic) egg”.

It is evident that the trial judge believed that the appellant, having a key to the basement, had a right to be in the basement but no right to go through the metal fire door into the large empty room. In ruling on the motion to suppress, the trial judge said: “And, so, in effect, he came through an area [where the laundry room was located] in which he had a right to be, and went into an area [the back room], at the very least, he had ... as little right as anybody had to be ...”. The evidence supports this finding. Unfortunately, however, it does not support the conclusion that the appellant lacked standing to contest the propriety of using the observations of the police as a basis for probable cause to search the back room or as evidence at trial over his objection.

When the two detectives observed the appellant in the basement he was in an area “in which he had a right to be”; then, according to the affidavit and the testimony at the trial in chief, they saw him enter “this large vacant room and both detectives lost sight of him”. They did not see him while he was in the back room. When they saw him emerge from the room a minute later, he was back in an area where the trial judge found he had a right to be. At this point the detectives observed that he had the egg-sized tinfoil packet.

In a recent opinion by Judge Moylan, this Court reviewed the development of the law of standing to object to a search and seizure. See Duncan v. State, 27 Md. App. 302 (1975). Initially the first hurdle a defendant must overcome at a suppression hearing is that of producing evidence that his personal constitutional rights were violated. “One must establish that it is his own direct or derivative enjoyment of property or expectation of privacy that has been invaded before he may challenge the invasion”. Duncan v. State, supra, at 304.

Prior to the Supreme Court decision in Jones v. U. S., 362 U. S. 257 (1960), many lower courts required a defendant to prove that he had either a possessory interest in the premises searched or the object seized. (See e.g. Gaskins v. U. S., 95 U. S. App. D. C. 34; Connolly v. Medalie, 58 F. 2d 629; U. S. v. DeBousi, 32 F. 2d 902). Thus a mere guest or invitee prior to Jones was generally regarded as not having sufficient interest in the premises to object to the search. In rejecting the necessity of proving ownership or possessory interest as a prerequisite to challenging the legality of a search and seizure, the Supreme Court said, in Jones, at 267:

“No just interest of the Government in the effective and rigorous enforcement of the criminal law will be hampered by recognizing that anyone legitimately on the premises where a search occurs may challenge its legality by way of a motion to suppress when its fruits are proposed to be used against him. This would of course not avail those who, by virtue of their wrongful presence, cannot invoke the privacy of the premises searched.” (Emphasis added).

At the time the appellant was observed in the basement at 2:35 A. M. he was, as the trial court held, “in a place he had a right to be”, i.e., he was “legitimately on the premises”, in an area common to all tenants, but excluded to the public in general. The fact that a person does not have exclusive use or is not the only person who is legitimately on the premises is not a bar to his having standing to object to a search of that area. In Mancusi v. De Forte, 392 U. S. 364 (1968), the U. S. Supreme Court held that a union official had standing to object to a search of the offices where he worked even though it was an office shared by several union officials and even though the defendant did not claim the records were seized from an area set aside for his personal use. The Court relied on Jones, supra, and Katz v. U. S., 389 U. S. 347 (1967), and held that the capacity to claim the protection of the Fourth Amendment “depends not upon a property right in the invaded place, but upon whether the area was one in which there was a reasonable expectation of freedom from government intrusion.” 392 U. S. at 368.

In the circumstances, we hold that while the appellant was in the basement, except for the time he was in the large empty room, he had a reasonable expectation that he would be “free from governmental intrusion”. The expectation was “reasonable” because he was “legitimately on the premises”, with knowledge that the area was excluded from the public’s presence and sight. Appellant met his burden of establishing his standing to object to the warrantless intrusion into the basement area.

Reasonableness of Prior Search

The appellant having established standing, the burden then fell upon the State to show justification for the warrantless search at 2:35 A. M. of the apartment basement. The trial judge made no finding on this issue for, as an alternate ground for denying the suppression motions, he was of the opinion that, based on U. S. v. Calandra, 414 U. S. 338, “if the ‘Fruit of the Poisonous Tree’ doctrine does not affect the evidence which appears before the grand jury, which is a later proceeding than the proceeding for the issuance of a search and seizure warrant, then . . . logically the conclusion ought to be it ought not apply as well to the issuance of the warrant either”. He then remarked, “.. . [T]his evidence may or may not have been illegally obtained”. Having ruled that the poisonous tree doctrine did not apply in testing the search warrant’s validity, it was not necessary for him to determine the issue of primary taint at the pre-trial suppression hearing, regardless of whether the appellant had standing or not.

The question is whether we as an appellate court should undertake the task of determining the validity of the prior search when the trial court has not. In Walters v. State, 8 Md. App. 583 (1970), Chief Judge Orth said at 588, n. 5:

“This Court does not sit as in nisi prius to appraise contradictory factual questions. This does not mean, however, that we may not, where necessary to the determination of constitutional rights, make an independent examination of the facts, findings and record so that we can determine whether in the decision as to reasonableness of a search the constitutional criteria have been respected.”

In the case before us the record reveals no unresolved factual disputes surrounding the prior entry and search by the police. In the circumstances we think it appropriate to make an independent examination of the record and determine for ourselves the reasonableness thereof. We have done so. We hold that the prior entry and search were unreasonable under the circumstances.

The record is clear that the police entered the apartment building at 2:35 A. M. for the sole purpose of “attempt[ing] to find and locate ‘Truck’s’ hiding place for the heroin”. The police admitted they had no permission to enter the building or, once inside, to enter the basement of the building. Detective Murrey testified that when he and Detective West entered the front door it was unlocked. However, unlike the situation in Eisenstein v. State, 200 Md. 593 (1952), there is no evidence from which the police could have reasonably concluded that the building or its common hallways were open to the public at 2:35 A. M.

In Eisenstein, police officers, without a search warrant, opened the unlocked entrance door and entered the vestibule of a small apartment house. They were looking for a person named Drake they suspected of violation of the narcotic laws. While in the vestibule they observed Eisenstein come out of a door “shoving lottery tickets into his pocket”. One of the officers grabbed Eisenstein and caught his hand in the pocket with the lottery slips and took 25 slips away from him. Eisenstein claimed his arrest and the seizure of the slips were illegal. The Court said, at 597: “If the officers were lawfully in the vestibule of the apartment house when they observed the appellant with the lottery tickets, although without a warrant, they had the right to arrest the appellant, search his person and seize incriminating articles connected with the crime found upon his person or within his use and immediate control or possession”. There was no evidence in Eisenstein that the entrance door was ever locked and other evidence that “it was the custom of everyone entering this apartment house to use this vestibule as a public entrance and that this unlocked entrance door was open to the public .... It could be concluded on the question of admissibility of this evidence [the lottery slips], that this vestibule was a public hallway”, at 600.

The State produced no evidence warranting such a conclusion in the instant case. On the contrary, as noted earlier, there was uncontradicted testimony by the resident manager that the entrance door was kept locked and only tenants and management personnel had keys to the door. The only way one visiting a tenant could gain entrance was by telephoning a tenant who “would come down” and unlock the door. In their affidavit accompanying the search warrant application, the police officers swore that they entered the front door “along with the informant”, who had previously informed them that on previous occasions he would telephone “Truck” and inform him “he was coming over to ‘Re-Up’ (term meaning to resupply)”; and that “he would then enter 839 Druid Park Lake Drive (Lake Side Apts.), walk down a hallway and knock on the door with Al written on the door” (See affidavit set forth supra). This is consistent with the resident manager’s testimony and supports the clear inference that in the early morning hours of June 30, 1973, the appellant, in response to the informant’s telephone call, unlocked the door for him and returned to his apartment to await the informant’s arrival.

■ At.the trial in chief Detective Murrey testified that it was he or Detective West, rather than the informant, who actually opened the door by turning the knob and walking in. In our opinion, under the circumstances, this was an illegal entry on their part for the expressed purpose of searching for evidence of crime against the appellant.

It may be that at the time of their initial entry, based on the information from the informant concerning appellant’s method of operation, the police had probable cause to search the apartment building, including perhaps the basement, but as stated by the Supreme Court in Katz v. United States, supra, at 356-57:

. . [T]his Court has never sustained a search upon the sole ground that officers reasonably expected to find evidence of a particular crime and voluntarily confined their activities to the least intrusive means consistent with that end. Searches conducted without warrants have been held unlawful ‘notwithstanding facts unquestionably showing probable cause,’ Agnello v. United States, 269 U. S. 20, 33, for the Constitution requires ‘that the deliberate, impartial judgment of a judicial officer ... be interposed between the citizen and the police . . . .’ Wong Sun v. United States, 371 U. S. 471, 481-482. ‘Over and again this Court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ United States v. Jeffers, 342 U. S. 48, 51, and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per- se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.”

There is no evidence in this case warranting the application of any of the “few specially established and well-delineated exceptions” to the warrant rule. Certainly, there were no exigent circumstances. The affidavit on its face establishes that the appellant had been under surveillance for several days. There was no evident reason for not seeking a warrant before the initial entry into the building.

In his concurring opinion in McDonald v. United States, 335 U. S. 451, 458 (1948), Mr. Justice Jackson said:

“But it seems to me that each tenant of a building, while he has no right to exclude from the common hallways those who enter lawfully, does have a personal and constitutionally protected interest in the integrity and security of the entire building against unlawful breaking and entry. Here the police gained access to their peeking post by means that were not merely unauthorized but by means that were forbidden by law and denounced as criminal .... Having forced an entry without either a search warrant or an arrest warrant to justify it, the felonious character of their entry, it seems to me, followed every step of their journey inside the house and tainted its fruits with illegality. Cf. Weeks v. United States, 232 U. S. 383; Taylor v. United States, 286 U. S. 1; Johnson v. United States, 333 U. S. 10.”

Even if we were to assume the initial entry into the building was somehow lawful, there can be no doubt that the entry into the basement was not. Here again, the police concede they had no permission from anyone to enter the basement. There are cases, such as Eisenstein, supra, where courts have held it reasonable in certain circumstances for police officers to enter lobbys and common hallways of apartment buildings found to be used by the general public. No case has been cited to us and we have found none, holding that, absent consent or exigent circumstances, the police may make a warrantless search of a basement area closed to the public and to be used only by tenants of the building.

Prom what we have said it follows that evidence concerning the observations of the police inside the apartment building in the early morning hours of June 30, 1973, should not have been admitted as evidence at the trial in chief or used to form the basis for the search warrant subsequently obtained. See Alderman v. U. S., 394 U. S. 165 (1969); Everhart v. State, supra; Carter v. State, 274 Md. 411 (1975).

ADMISSIBILITY OF TANGIBLE EVIDENCE (HEROIN)

The State argues that even if the search warrant is held invalid as to the basement, since the appellant “had no right to expect any privacy at all in the vacant room” where the heroin was found by the police after they had obtained the search warrant, the appellant had no standing to object to its admissibility. As we have indicated, the trial judge agreed with this contention. We do not. We think that once it has been established that appellant has standing to object to the police observations inside the building and once it is shown that those observations were the direct fruits of a violation of appellant’s Fourth Amendment rights, the appellant’s right to object to evidence indirectly obtained as a result of that violation is also established.

Stated differently, once it is determined that a defendant in a criminal trial has standing to object to evidence obtained as a direct result of violations of his Fourth Amendment rights, his standing to object to evidence obtained as an indirect result of those violations derives from the prior establishment of his standing to object to the evidence directly obtained. We think this result is mandated by decisions of the Supreme Court of the United States (See, e.g. Silverthorne Lumber Company v. United States, 251 U. S. 385 (1920); Nardone v. United States, 308 U. S. 338 (1939); Wong Sun v. United States, 371 U. S. 471 (1963)), as explicated by the Maryland Court of Appeals in Everhart v. State, supra, and Carter v. State, supra.

In Wong Sun, the Supreme Court brought to full flower the doctrine of the “fruit of the poisonous tree”. In that case there were two defendants, Toy and Wong Sun, both charged with narcotic violations. Both had been illegally arrested by federal narcotics agents. A verbal statement by Toy given to the agents immediately after his arrest was held inadmissible against Toy (as “the ‘fruit’ of official illegality”). The verbal statement directed the police to a third person, Johnny Yee, as one who was selling narcotics. The police thereupon went to Yee’s home, entered it and found Yee in his bedroom. After a discussion with the agents, Yee took from a bureau drawer a small quantity of heroin and surrendered it to the agents. One of the questions before the Supreme Court was the admissibility of this heroin in evidence against both Toy and Wong Sun. As to Wong Sun the Court held the heroin admissible, as “[t]he seizure of this heroin invaded no right of privacy of person or premises which would entitle Wong Sun to object to its use at his trial”. It is clear to us that, considered in vacuo, the same could be said as to its admissibility against Toy. Toy had no more right of privacy in Yee’s home than did Wong Sun. As to Toy, however, the Court said, at 487, 488, 492:

“We now consider whether the exclusion of Toy’s declarations requires also the exclusion of the narcotics taken from Yee, to which those declarations led the police. The prosecutor candidly told the trial court that ‘we wouldn’t have found those drugs except that Mr. Toy helped us to.’ Hence this is not the case envisioned by this Court where the exclusionary rule has no application because the Government learned of the evidence ‘from an independent source,’ Silverthorne Lumber Co. v. United States, 251 U. S. 385, 392; nor is this a case in which the connection between the lawless conduct of the police and the discovery of the challenged evidence has ‘become so attenuated as to dissipate the taint.’ Nardone v. United States, 308 U. S. 338, 341. We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. ’ Maguire, Evidence of Guilt, 221 (1959). We think it clear that the narcotics were ‘come at by the exploitation of that illegality’ and hence that they may not be used against Toy.” (Emphasis added)
“. . . The exclusion of the narcotics as to Toy was required solely by their tainted relationship to information unlawfully obtained from Toy, and not with any official impropriety connected with their surrender by Yee”. (Emphasis added)

On the record before us, we think it clear that the heroin with which the defendant was charged with possessing was “come at by exploitation” of the primary illegality and that the State failed to produce legally sufficient evidence that “it had an independent origin or that the information gained in the unlawful search did not lead directly or indirectly” to its discovery. Everhart v. State, supra.

Judgment reversed and case remanded for a new trial.

Costs to be paid by Mayor & City Council of Baltimore City.

Powers, J.,

concurring:

Judge Gilbert and I subscribe fully to the opinion written for the unanimous panel by Judge Melvin, as well as in the result. 1 wish, however, to comment further upon the effect of the illegal 2:35 A. M. search upon appellant’s constitutional rights. Judge Gilbert joins me in this comment.

It should be clear that we are not holding that the appellant had Fourth Amendment standing to object to the second entry and ultimate seizure at 8:30 A.M. as such. He clearly did not. His standing rather was to object to the indirect use as well as the direct use of information gathered during the earlier 2:35 A.M. intrusion, as to which he did most definitely have Fourth Amendment standing. That earlier unconstitutional intrusion was the poisonous tree — primary illegality. I wish to emphasize precisely which of several parallel but functionally distinct uses of the information unconstitutionally obtained at 2:35 A.M. — precisely which exploitation of that primary illegality — is the one that counts in this case. Poisonous trees may bear immaterial fruits as well as material ones and may bear both simultaneously.

It was not the use of the unconstitutionally obtained evidence to spell out probable cause for the search warrant that matters here. Since the appellant has no Fourth Amendment protection in the inner room searched at 8:30 A.M., no search warrant, as far as his rights were concerned, was necessary. The very existence of a warrant being immaterial, the constitutional validity of its probable cause is thereby equally immaterial. It simply does not matter whether probable cause is tainted or untainted for a warrant which is itself redundant.

The exploitation of the primary illegality that does matter was the use of the unconstitutionally obtained information to know when and where to go and where to look at 8:30 A.M., irrespective of any Fourth Amendment consideration at that later time. On the record before us, but for the use of the illegally obtained knowledge, the contraband would never have been found. There was no arguable attenuation of the taint. The precise use of a poisoned fruit which cannot be permitted, therefore, was not the obtaining of an unneeded warrant, an immaterial exploitation at most, but the very act of going to an unforseeable hiding place in the sure knowledge that contraband would there be found, a most material and directly incriminating exploitation. It was not the ostensible justification for the going to the landlord’s basement room but the very act of going to that room that mattered.

      . Although the trial judge allowed Detective Murrey to testify, over appellant’s objections, concerning his observations of the “controlled buy”, no attempt was made to introduce as evidence the “one tin foil packet” which the informant presumably obtained from appellant’s apartment; nor was there any evidence at the trial in chief that the packet contained illicit drugs. The informant did not testify.

      . There is some indication that before a defendant is required to offer such proof the State must raise the issue of defendant’s lack of standing. Combs v. U. S., 408 U. S. 224 (1972). The State has sufficiently raised the issue in the case at hand.

      . The trial judge, of course, did not have the benefit of the recent Court of Appeals decision in Everhart v. State, supra, holding to the contrary.


author: Gilbert, J.,

text:
    MICHAEL DALE YOWELL v. STATE OF MARYLAND
    [No. 18,
    September Term, 1975.]

      Decided October 3, 1975.

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

      John K. Keane, Jr., Assigned Public Defender, for appellant.

      Leroy Handwerger, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Arthur A. Kravetz, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Gilbert, J.,

delivered the opinion of the Court.

Two questions arise as a result of an appeal to this Court by Michael Dale Yowell who was convicted at a jury trial in the Circuit Court for Prince George’s County of rape, assault and perverted sexual practice. The first query we must answer is a procedural matter, i.e., has the second substantive issue been preserved for our review? If we resolve the first problem in appellant’s favor, we must then decide whether the trial judge improperly refused to allow cross-examination of the prosecuting witness, which said examination was to have been grounded on an alleged prior inconsistent statement made by the prosecutrix to a public defender investigator. The transcript reveals:

“Q. [By Mr. Keane, Appellant’s Counsel] Josie, do you recall having met a gentleman whose name is Howard Campbell in the last couple of days?
A. Yes.
Q. And did you talk with him about this incident?
A. Yes.
Q. Do you recall him asking you about what time did you meet him on February 11? Do you recall Mr. Campbell having asked you the following question: ‘About what time did you meet him on February 11, 1974, the day of this alleged offense? ’ Do you recall —
MR. KRAVETZ [Assistant State’s Attorney]: Objection, Your Honor.
THE WITNESS: No.
MR. KRAVETZ: The question is misleading as to the date.
THE COURT: I don’t know. Is it a deposition or something?
MR. KEANE: It is a statement she made to Howard Campbell.
THE COURT: Well, first read her what she said, then ask her if she said it.
Q. Do you recall him asking you such a question?
A. No. He asked a question.
Q. Josie, let me show you a document, and you read part of it and just tell me if it refreshes your memory at all. You read this question. Disregarding the date, read what is marked A as your answer. Read that over and see if it refreshes your memory at all.
Josie, do you remember what the defendant was drinking when you were sitting at the table with him?
A. No.
Q. Could it have been Bloody Marys?
A. I don’t know.
Q. You don’t recall having told Mr. Campbell he was drinking Bloody Marys?
A. No.
THE COURT: Is the statement made under oath?
MR. KEANE: No. Your Honor.
THE COURT: Approach the bench.
(Whereupon, counsel approached the bench, and the following proceedings were had out of the hearing of the jury:)
THE COURT: I am not prepared to allow that kind of stuff, investigative, not under oath.
MR. KEANE: Prior inconsistent statement. Doesn’t make any difference if it is under oath or not.
THE COURT: I think it does. He is not here.[]
MR. KEANE: He probably will be if we need him.
THE COURT: I am not permitting any of that kind of stuff.
MR. KEANE: I didn’t want to read the answer.
THE COURT: She is under oath now. If you have something under oath —
MR. KEANE: I have got that, too.
THE COURT: If it is not under oath don’t bother with it.
MR. KEANE: I have got her under oath as well.
THE COURT: Not some detective’s word.
MR. KEANE: That is the reason I didn’t read it to her, and asked her to read it and see if it refreshes her memory.
THE COURT: I just assumed it was under oath or you wouldn’t have brought it out and asked her the question.
MR. KEANE: I have a transcript from downstairs under oath. []
THE COURT: You can do that.”

In the light of the above-quoted dialogue, the State suggests that the substantive issue has not been preserved for our review, and that we are precluded from considering it by Md. Rule 1085. We disagree. When the trial judge refused to allow interrogation of the prosecutrix founded upon “that kind of stuff, investigative”, which consisted of a supposed out of court, prior inconsistent statement, the judge violated the appellant’s right to a fair and impartial trial by foreclosing the trial tactic of impeachment. Unlike the situation in White v. State, 23 Md. App. 151, 326 A. 2d 219 (1974), the appellant in the instant case did make an attempt to lay a foundation for the impeachment of the prosecutrix, but the trial judge frustrated that effort when he forbade the use of the prior statement because it was not under oath.

While it may be argued that the appellant should have made a proffer at trial as to what the allegedly prior inconsistent statement contained, we do not believe, under the circumstances of this case, that the failure to make such a proffer is fatal. Ordinarily a proffer to show relevancy should have been made, but once the judge ruled that regardless of content it was inadmissible because it was not under oath, the appellant was precluded from showing relevancy.

We adopted a similar stand in Phillips v. State, 6 Md. App. 56, 59, 250 A. 2d 111, 113 (1969). There, speaking through Judge Anderson, we permitted an appeal from a trial judge’s refusal to allow counsel to argue law to the jury. We considered the issue on appeal even though the appellant failed to note a formal objection to the trial judge’s sua sponte ruling proscribing such an argument. Phillips bears resemblance to the case now before us because not only was there no formal objection to the trial court’s ruling, but there, as here, it was the erroneous sua sponte action of the trial judge that curtailed the appellant’s presentation of his case or argument. Moreover, the appellant’s articulation to the trial judge relative to the prior inconsistent statement, while hardly a model of clarity, nevertheless, did supply sufficient data to the judge from which he could have drawn several clear rational inferences. Those inferences, simply stated, are that appellant possessed a statement made by the prosecutrix, prior to her in-court testimony, and which was to some extent inconsistent therewith; appellant desired to impeach the prosecutrix on the strength of her prior inconsistent statement; the law authorizes such impeachment irrespective whether the prior statement was under oath. We think appellant to have laid the foundation for the use of the prior inconsistent statement, and that he should have been allowed to continue the inquiry so as to establish materiality, if any.

We turn now to the question of the substantive issue. This Court flatly stated in Sanders v. State, 1 Md. App. 630, 640, 232 A. 2d 555 (1967):

“Provided a proper foundation has been laid, the credit of a witness may be impeached by showing he has made statements which contradict his testimony in respect to material facts. . . . Davis v. State, 38 Md. 15 [(1873)]; Joppy v. Hopkins, 231 Md. 52, 56 [188 A. 2d 545, 548 (1963)] and cases cited; Kantor v. Ash, 215 Md. 285, 290 [137 A. 2d 661, 664 (1958)]; Mahan v. State, 172 Md. 373, 380 [191 A. 575, 579 (1937)]. To lay the foundation for such evidence, the witness must be first interrogated as to the time, place and person to whom such contradictory statements were made.” (Emphasis supplied).

To the same effect see: Devan v. State, 17 Md. App. 182, 300 A. 2d 705 (1973); Cooper v. State, 14 Md. App. 106, 286 A. 2d 579 (1972); Estep v. State, 14 Md. App. 53, 286 A. 2d 187 (1972); Jenkins v. State, 14 Md. App. 1, 285 A. 2d 667 (1971); Hernandez v. State, 7 Md. App. 355, 255 A. 2d 449 (1969).

We did not say in Sanders, nor are we familiar with any case holding that in order to use a prior inconsistent statement for impeachment purposes, the statement must have been made under oath. It is enough that the statement, oral or in writing, be made prior to the giving of the challenged testimony, and that it be material to the facts at issue and not merely collateral or irrelevant.

When the trial judge refused to allow the use of the prior inconsistent statement for impeachment purposes, he not only failed to adhere to what we espoused in Sanders v. State, supra, and its progeny, but he denied to appellant the fair and impartial trial that appellant is guaranteed under the Constitution of the United States and the State of Maryland Declaration of Rights.

Judgment reversed and case remanded for a new trial.

Costs to be paid by Prince George’s County.

      . All witnesses had been excluded from the courtroom pursuant to Md. Rule 753.

      . A reference to the transcript of the preliminary hearing that was conducted in the District Court.

      . The value of the use of prior inconsistent statements seems to have been recognized in Biblical times. See Job, ch. 31, v. 35 wherein it is stated: “Behold, my desire is... that mine adversary had written a book.”

      . The appellant has moved in this Court to supplement the record by adding the alleged prior inconsistent statement. The statement should have been made a part of the record at the time of trial. There is no authority for the introduction of evidence, for the first time, in an appellate court. We deny the motion.

      . We are, of course, unable to say what impact, if any, the prior statement, if inconsistent, would have had upon the jury’s attaching of credibility to the prosecutrix’s version of the events giving rise to this case. We are not to be interpreted as holding that the prior statement is or is not inconsistent. The statement is not before us and consequently we express no opinion thereon.