author: Mason, J.,

text:
    GARY PAUL DONALDSON v. STATE OF MARYLAND
    [No. 752,
    September Term, 1979.]

      Decided October 8, 1980.

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

      Howard Margulies, Assigned Public Defender, for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Mark A. Binstock, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

Appellant, Gary Paul Donaldson, was convicted at a bench trial in the Circuit Court for Montgomery County of possession of controlled dangerous substances (PCP) and possession of controlled paraphernalia. On appeal he argues:

1. That the affidavit in support of the search and seizure warrant lacked probable cause.

2. That the delayed execution of the warrant constituted an unreasonable search and seizure.

3. That the seizure of the film canister from his pocket was an illegal search.

I.

On July 13,1978, a search and seizure warrant was issued for the premises located at 4511 Grenoble Court in Wheaton, Maryland authorizing the search of the premises and the seizure of controlled dangerous substances and paraphernalia. Application for the warrant was supported by affidavits from Officers Joseph R. Hock, Jr., who possessed considerable experience in conducting narcotic investigations and had received extensive training in this field, and Paul E. Morrison, a police officer for several years.

Appellant attacks the search and seizure warrant on the basis that the supporting affidavit lacked probable cause, i.e., it did not show that the informants were credible, the information reliable, and that they possessed a sufficient basis of knowledge as required by Aguilar v. Texas, 378 U.S. 108 (1964). It is axiomatic that probable cause may be established by either or both of the following: (1) the direct observation of the affiant, or (2) heresay information furnished to the affiant. In Moore v. State, 13 Md. App. 711, 715, 284 A.2d 614 (1971) this Court said:

"Thus probable cause may be shown in the affidavit by a statement by the affiant 1) of his direct observations, or 2) of information furnished the affiant by someone else, named or unnamed, or 3) of a combination of the direct observations of the affiant and hearsay information furnished him.”

The affidavit in this case was based on hearsay information furnished by ten undisclosed informants who were described in the affidavit as "concerned citizens,” combined with independent investigations and observations by the affiant-officers which verified, corroborated or authenticated, in part, the information given by the informants. This buttressing technique was approved in Spinelli v. United States, 393 U.S. 410 (1969); accord, Stanley v. State, 19 Md. App. 507, 529, 313 A.2d 847 (1974) where we said:

"When the independent police observations have verified part of the story told by an informant, that corroboration lends credence to the remaining unverified portion of the story by demonstrating that the informant has, to the extent tested, spoken truly. . . . The verification helps to demonstrate his 'credibility.’ Present good performance shows him to be probably 'credible’ just as surely as the past good performance.”

Even excluding the hearsay information furnished by the ten alleged "concerned citizens,” the independent observations by the police were sufficient to establish probable cause. Therefore, an analysis of the hearsay information under the Aguilar test is not required. With respect to independent police observations, this Court said:

"When such observations are sufficient in themselves to demonstrate probable cause, the final problem is thereby solved and all information both from and about the informant becomes a redundancy; probable cause is established without necessary resort to the hearsay.”

Stanley v. State, supra, at 528. Accord Frankel v. State, 178 Md. 553, 16 A.2d 93 (1940).

After conducting an independent investigation of substantial duration in connection with drug trafficking at the target premises, the affiants observed, among other things, a large number of persons with prior arrests for violating the narcotic laws entering and leaving the premises within short periods of time. They concluded that the residence was characteristic of premises used for drug trafficking. These observations were summarized by the affiants as follows:

"Several people arrive in one vehicle but only one or two persons enter the residence, persons involved in drug trafficking conduct such transactions within short periods of time. Persons purchasing C.D.S. [controlled dangerous substances] often park their vehicles not directly in front of a residence used for drug trafficking. Vehicles from different jurisdictions frequent a premises used for the trafficking of C.D.S. Packages go in and out of the premise used for the trafficking of C.D.S. and premises used for the trafficking of C.D.S. are frequented by previous C.D.S. violators and members of the criminal element.”

II.

The search warrant in this case was issued on July 13, 1979 and executed on July 24, 1979. The warrant commanded the officers to conduct the search of the premises "forthwith”.

The officers testified that the target premises were kept under surveillance from the date the warrant was issued until it was executed. During this period the traffic pattern of the people coming and going was monitored in order to determine when appellant had the most drugs and when was the most opportune time to execute the warrant. The delay in executing the warrant occurred because appellant had a party at his house on the 14th and for security reasons the warrant was not executed. The officers did not work on the 15th and the 16th which was a Saturday and Sunday, and on the 17th there was not much activity on the premises. Appellant was arrested on the 18th for an unrelated drug charge, and the officers thought he probably had most of the drugs on his person or in his automobile at the time of the arrest. On the 19th traffic was light and the officers assumed appellant was keeping quiet after his arrest. On the 20th and 21st there was only a little traffic in and out of the premises. The 22nd and 23rd was a weekend and the officers did not work. The warrant was executed on the 24th.

Appellant contends that the officers disobeyed the command of the warrant by deliberately delaying its execution in the expectation of finding a larger quantity of drugs on the premises, and because they wanted to arrest other persons buying drugs. He argues that this delay amounted to an unreasonable search and seizure in violation of the Fourth Amendment.

In support of this argument appellant relies on the case of Cave v. Superior Court, County of San Mateo, 267 Cal. App. 2d 517, 73 Cal. Rptr. 167 (1968). There the search warrant was issued on December 4, 1967 and executed on December 11, 1967. The sole reason for the seven day delay in executing the warrant was the officers’ expectation of finding additional stolen property on the premises. The California Penal Code required search warrants to be executed within ten days, and commanded peace officers to make an immediate search of the premises. The petitioners argued that the search was illegal because of the delay in executing the warrant, whereas respondent argued that the search was valid because it was conducted within the prescribed ten day period. In holding that the search was invalid, the court said:

"It is impossible for use to read this statute as permitting a search the time of which is at the officer’s discretion within the maximum, a search which is timed by the officer to produce property which he believes was brought to the premises subsequent to the issuing of the warrant, and the return to which is, of course, also delayed. The statute speaks of immediacy. It does not admit of delay that is calculated on the making of a more fruitful search than that which was described to the magistrate.
The terms of section 1529 and those of the warrant which was issued seems compelling to us. The words 'immediate’ and 'forthwith’ lose their true meaning if they be thought to relate to any time at all within ten days.” Id. at 169.

Article 27, section 551 of the Annotated Code of Maryland (1976 & Cum. Supp. 1979) provides that a search warrant shall be executed within fifteen days from issuance and after the expiration of the fifteen day period said warrant shall be null and void. The statute, however, does not require the warrant to command peace officers to make an "immediate” or "forthwith” search. The State argues that because the warrant in this case was executed within the fifteen day period prescribed by the statute, it was per se timely and valid. As authority for this position, it cites Griffin v. State, 232 Md. 389, 194 A.2d 80 (1963) where the defendant argued that the search warrant was defective in that it contained no limitation as to time or place. In disposing of this contention, the Court of Appeals held, among other things, that the fifteen days provided by the statute was a reasonable time to allow for the execution of the warrant. We do not think Grifñn is authority for what the State purports. In Grifñn, the warrant authorized the search of a person and not a place, and did not direct an immediate or forthwith search. Furthermore, the Court was not concerned with the issue presented here, i.e., whether a police officer may delay execution of a search warrant (for eleven days in which a forthwith search is commanded) for the purpose of conducting the search at a time when the officer believes there would be a greater probability of seizing a larger quantity of drugs. No Maryland appellate case has come to our attention in which this precise issue has been considered.

As we read the statute, fifteen days is the maximum allowable delay for the execution of a search warrant, but execution in less than fifteen days may be required depending on the facts and circumstances of each case. Although the statute does not require the forthwith execution of the warrant, it goes without saying that the judicially imposed requirement that the warrant shall be served forthwith was a mandate which controlled the execution of the warrant in this case. Other jurisdictions confronted with statutes or rules requiring "forthwith” service of a search warrant have construed this to mean that the warrant must be executed with reasonable promptness and diligence, taking into consideration the actual difficulties encountered in attempting to effectuate the search. In Moss v. Director, 32 Md. App. 66, 73, 359 A.2d 236 (1976) the term "forthwith” was interpreted to mean "with all reasonable dispatch consistent with the circumstances.”

What we have here is an apparent conflict between the statute which requires service of the warrant within fifteen days, and the command of the warrant which required the search to be conducted forthwith. Prior to a 1972 amendment eliminating the forthwith requirement, Rule 41 (c) of the Federal Rules of Criminal Procedure required that a search be made forthwith, and Rule 41 (d) required that a search warrant be executed within ten days. Many cases arose in the Federal Courts which attempted to reconcile the apparent conflict between the forthwith requirement of Rule 41 (c) and the ten day limit of Rule 41 (d). A distillation of these cases indicates that the Federal Courts have interpreted the forthwith requirement to mean that the warrant must be executed without unreasonable delay, but if the search is conducted within the ten day limitation period, evidence seized pursuant to the search will be suppressed only if the defendant can show that he was prejudiced by the delay. See, e.g., United States v. Wilson, 491 F.2d 724 (6th Cir. 1974) where execution of a warrant was delayed six days to conceal identity of informant; United States v. Rael, 467 F.2d 333 (10th Cir. 1972) — five day delay caused by lack of sufficient personnel; United States v. Harper, 450 F.2d 1032 (5th Cir. 1971) — nine day delay resulting from desire to arrest accomplices; United States v. Dunnings, 425 F.2d 836 (2d Cir. 1969); cert. den. 397 U.S. 1002 (1970) — nine day delay resulting from a desire to arrest defendant; United States v. Nepstead, 424 F.2d 269 (9th Cir. 1970), cert. den. 400 U.S. 848 — six day delay caused by a desire to wait until illicit drugs were actually manufactured. In all of the above cited cases the delay in the execution of the search warrant was found to be reasonable, and the defendants were not prejudiced by the delay, i.e., the probable cause upon which the warrant issued still existed at the time the warrant was executed. We think the case of United States v. Bedford, 519 F.2d 650, 655 (3rd Cir. 1975) cert. den. 424 U.S. 917 cogently states the rule, which we adopt, regarding the execution of a search warrant:

"The element of time can admittedly affect the validity of a search warrant. Since it is upon allegation of presently existing facts that a warrant is issued, it is essential that it be executed promptly, 'in order to lessen the possibility that the facts upon which probable cause was initially based do not become dissipated.’ If the police were allowed to execute the warrant at leisure, the safeguard of judicial control over the search which the fourth amendment is intended to accomplish would be eviscerated. Thus, a search pursuant to a 'stale’ warrant is invalid.
It is generally accepted, however, that a warrant need only be executed within a reasonable time after its issuance, notwithstanding the presence of 'forthwith’ language in the warrant. Timeliness of execution should not be determined by means of a mechanical test with regard to the number of days from issuance, nor whether any cause for delay was per se reasonable or unreasonable. Rather it should be functionally measured in terms of whether probable cause still existed at the time the warrant was executed.” (Emphasis in original). (Footnotes omitted).

The rationale in United States v. Bedford, supra, regarding the staleness of probable cause in the execution of a warrant is analogous to the rule the Court of Appeals and this Court adopted with regard to the staleness of probable cause in the issuance of a warrant. See Peterson v. State, 281 Md. 309, 379 A.2d 164 cert. den. 435 U.S. 945 (1977); Andresen v. State, 24 Md. App. 128, 331 A.2d 78, cert. den. 274 Md. 725 (1975), aff'd. 427 U.S. 463 (1976); Washburn v. State, 19 Md. App. 187, 310 A.2d 176 (1973); Johnson v. State, 14 Md. App. 721, 288 A.2d 622, cert. den. 266 Md. 739, cert. den. 409 U.S. 1039 (1972); Clayton v. State, 1 Md. App. 500, 231 A.2d 717 (1967). In Andresen v. State, supra, Judge Moylan, speaking for this Court, lucidly explicated the general rule regarding stale probable cause:

"The ultimate criterion in determining the degree of evaporation of probable cause, however, is not case law but reason. The likelihood that the evidence sought is still in place is a function not simply of watch and calendar but of variables that do not punch a clock: the character of the crime (chance encounter in the night or regenerating conspiracy?), of the criminal (nomadic or entrenched?), of the thing to be seized (perishable and easily transferable or of enduring utility to its holder?), of the place to be searched (mere criminal forum of convenience or secure operational base?), etc. The observation of a half-smoked marijuana cigarette in an ashtray at a cocktail party may well be stale the day after the cleaning lady has been in; the observation of the burial of a corpse in a cellar may well not be stale three decades later. The hare and the tortoise do not disappear at the same rate of speed.” 24 Md. App. at 172.

The rule enunciated in Andresen is not only relevant to the length of delay between observation and issuance of a warrant, it is also relevant to the length of delay between issuance and execution of a warrant. What the Court of Appeals said in Peterson, supra, is apposite here.

"By its nature, traffic in illegal drugs is ordinarily a regenerating activity, and there was clear indication here that the activity was continual, a course of conduct regularly followed over a protracted time. There was also ample reason to believe from the recitals that Peterson was entrenched in the illicit activity, not only from the information given by confidential informants, but from actual purchases from time to time from him. He followed a persistent pattern of criminal involvement relating to narcotic drugs. It is true that narcotics are easily transferable, but the repeated distribution evident from the facts showed that they were readily replaceable and that Peterson had an available source of supply.” Id. at 321.

For the reasons herein stated we conclude that the timeliness of the execution of the warrant is not measured by whether the delay was reasonable or unreasonable, but by whether the probable cause upon which the warrant was issued still existed at the time the warrant was executed. In the present case no prejudice attributable to the delay has been asserted, and nothing in the record indicates that the probable cause upon which the warrant was issued, i.e., illegal drug trafficking, did not still exist at the time the warrant was executed.

III.

Immediately after entering the named premises to execute the warrant, Officer Morrison conducted a search of appellant for weapons. While frisking appellant, the officer observed an object in appellant’s shirt pocket which he presumed was a film canister. The officer removed the canister from appellant’s pocket and it contained PCP — a controlled dangerous substance.

At the suppression hearing the following colloquy occurred between counsel for appellant and Officer Morrison:

"CROSS EXAMINATION
BY MR. HEENEY:
Q: You were searching for weapons — we all agree with that — on the person of the defendant?
A: Right.
Q: Tell us whether or not you saw anything. Did you see any bullets or anything in the defendant’s pockets?
A: Well, when I was searching him when I put him up against the wall?
Q: Right.
A. I pretty well knew what was in one pocket, yes.
Q: What did you pretty well know was in one pocket?
A: From tlie outline of the thing against the shirt, I presumed it was a film canister.
Q: Not a weapon?
A: Correct.
Q: Your presumption that it was a film canister led you to believe that in no way did that canister endanger you or your fellow officers, correct?
A: Correct.
Q: Did you yourself reach into the pocket of the defendant and retrieve it?
A: Yes, I did.
Q: That was the film canister?
A: Right.
Q: Was the inside of the film canister visible?
A: When I removed the top, the insides became visible.
Q: When you took the top off?
A: Yes.
Q: Prior to the time you took the top off the film canister you didn’t know whether the contents were film, drugs or nothing at all, did you?
A: Based on my experience I was pretty well sure in my mind I knew what it was. It’s a common carrier of— it is used commonly to carry a certain drug.
Q: In your experience?
A: Yes.
Q: But you had no specific or particular facts in which to conclude that that canister contained the drugs, did you?
A: From my experience and for the reason we were there I assumed that I did, yes.
Q: That was your assumption?
A: I was one hundred percent sure.”

Appellant argues that the taking of the film canister from his pocket was an unlawful search and seizure in violation of the Fourth Amendment of the United States Constitution. We agree. The State’s apparent theory for justification of the warrantless search is that the police officer had sufficient probable cause to believe that the object in appellant’s pocket was a film canister, and that based on his training and experience the officer was one hundred percent sure the canister contained a controlled dangerous substance. In Liichow v. State, No. 89 (Md. Filed Sept. 10, 1980), a trooper observed fifty white dime-sized tablets in a plastic baggie. Based on the trooper’s training and experience he believed the tablets were a controlled dangerous substance and seized them. The Court of Appeals held: "[M]erely seeing dime-sized white tablets among personal belongings does not make it immediately apparent that the viewer has before him evidence of criminal conduct.” Id. slip op. at 12. (Emphasis in original). See also DiPasquale v. State, 43 Md. App. 574, 406 A.2d 665 (1979). There a police officer who had a reasonable suspicion that the defendant was intoxicated by drugs, noticed a plastic baggie protruding from the pocket of the defendant’s jump suit which appeared to him to contain a few grains of cigarette tobacco. After seizing the baggie and observing its contents, the officer arrested the defendant for possession of marihuana. In holding that the seizure was unlawful, we said:

"There is nothing in this record demonstrating that the officer here believed that the bag which he observed partially in open view was evidence of crime. This critical element of nexus or probable cause for a warrantless seizure was well articulated by Judge Levine in State v. Wilson, 279 Md. 189, 195, 367 A.2d 1223, 1227 (1977):
'[I]t was not "immediately apparent to the police that they [had] evidence before them.” This element, in essence, amounts to a requirement that police have probable cause to believe the evidence is incriminating before they seize it. As the court said in United States v. Gray, supra, 484 F.2d at 356, "[I]t must be 'immediately apparent’ to the police that the object is in fact incriminating or the seizure of the object would be without probable cause and would turn the search into a general or exploratory one.” [Citations omitted].’ Id. at 576.

In the case now before us, Officer Morrison testified that he presumed the object in appellant’s pocket was a film canister "from the outline of the thing against the shirt”. He further testified that because of his experience he was one hundred percent sure the canister contained drugs. The only evidence in the record concerning Officer Morrison’s training and experience is the following information contained in the affidavit for the search warrant: "Your affiant, Off. P. Morrison, has been a Montgomery County Police Officer since June 22, 1970 and has been assigned to the Vice-Narcotic Division since May 7, 1978. Your affiant is presently receiving on-the-job training ... to supplement his previous eight year police experience.” We note that Officer Morrison was assigned to the Vice-Narcotics Division on May 7,1978, and the warrant was executed on July 24,1978.

Even if we were to assume that Officer Morrison’s experience with narcotics was extensive, which it was not, it is doubtful under the circumstances here that he had an adequate basis from which reasonably to assume that the object in appellant’s pocket was a film canister, and that the film canister contained a controlled dangerous substance. To reach such a result would do violence to the "plain view” exception to the warrant requirement which may not be used as a vehicle to conduct a general or exploratory search.

Because the film canister containing a controlled dangerous substance was unlawfully seized from the person of appellant, we reversed and remand for a new trial on Count One — possession of controlled dangerous susbstances (PCP).

Judgment as to count one possession of controlled dangerous substances reversed and remanded for a new trial.

Judgment as to count two possession of controlled paraphernalia affirmed.

Costs are not reallocated as part of the judgments of this court pursuant to Maryland Rule 1082 f

      . At the suppression hearing the police testified that they used the term "concerned citizen” because they could not substantiate the reliability of the informants based on past performance.

      . The State does not contend that the search was conducted as an incident to a lawful arrest, nor does it contend that the search was legal under authority of the search warrant. See Salmon v. State, 2 Md. App. 513 (1967) and Haley, Peterson and Roberts v. State, 7 Md. App. 18 (1969).


source: Caselaw Access Project

author: Melvin, J.,

license: Public Domain

text:
    BRUCE HERBERT DEAN v. STATE OF MARYLAND
    [No. 1533,
    September Term, 1979.]

      Decided October 8, 1980.

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

      Clarence W. Sharp, Assigned Public Defender, for appellant.

      Ray E. Stokes, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sidney S. Campen, Jr., State’s Attorney for Talbot County, and Jane Tolar O’Connor, Assistant State’s Attorney for Talbot County, on the brief, for appellee.
   Melvin, J.,

delivered the opinion of the Court.

By a four count criminal information filed in the Circuit Court for Talbot County on July 5, 1979, the appellant, Bruce Herbert Dean, age 29, was charged with kidnapping four young females between the ages of 16 and 20. Each count named one of the young women as the victim. On November 16, 1979 he was found guilty by a jury of all four counts and subsequently sentenced on each count to prison terms totaling twelve years for the four offenses.

I

On appeal Dean presents four questions. As one of the questions challenges the sufficiency of the evidence to support the kidnapping convictions, we shall consider that question first, for if we conclude that the trial judge erred in denying Dean’s motion for judgment of acquittal, made at the close of all the evidence on insufficiency grounds, we must reverse without remand, in which event it would be unnecessary to consider any of the other issues raised. See Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1 (1978); Ricketts v. State, 46 Md. App. 410, 417 A.2d 465 (1980).

The statute under which Dean was convicted (Md. Code, Art. 27, § 337) provides in pertinent part:

"Every person, his counsellors, aiders or abettors, who shall be convicted of the crime of kidnapping and forcibly or fraudulently carrying or causing to be carried out of or within this State any person ... with intent to have such person carried out of or within this State, or with the intent to have such person concealed within the State or without the State, shall be guilty of a felony and shall be sentenced to the penitentiary for not more than thirty years.”

As this Court said in Tate and Hall v. State, 32 Md. App. 613, 616-617, 363 A.2d 622 (1976):

"[Wjhatever might be said of the common law offense [of kidnapping] it is apparent, in light of the changes wrought by § 337, that the gist of the offense of kidnapping in Maryland is unlawful confinement coupled with transportation of the victim. Cf. Collier v. Vaccaro, 51 F.2d 17, 19 (4th Cir. 1931). The initial assaultive taking of the person and the carrying out of the state required at common law are not part of the § 337 offense.”

The evidence in this case shows that at approximately 10:45 P.M., on May 21,1979, while the four alleged victims were standing on the corner of South and Higgins Streets in Easton, Maryland, the appellant drove up in a pickup truck and stopped. The appellant’s friend, one James Robinson, was a passenger in the truck. One of the girls knew Robinson, but the appellant was a stranger to all of them. The girls asked for a ride to a particular bar several blocks away. The two men agreed and all four got into the back of the truck. When they got to the bar they found it closed. The group then drove around Easton, with the girls still in the back of the pickup truck, "having a good time,” singing and waving to their friends, and generally "partying.” At one point, the truck stopped at a stop sign on the edge of town and all the girls got out. The men said they were on their way to a Six-Twelve store outside of town for beer and cigarettes. The girls told them of a liquor store that would be closer than the Six-Twelve store. The girls then got back in the truck and drove with the two men to the liquor store where beer and cigarettes were purchased. After socializing with other young people there the girls again got into the back of the truck and continued to joy-ride around Easton.

At some point thereafter, the men again indicated they were going to the Six-Twelve store — this time to get gasoline. There is evidence that the girls agreed to go with them on condition that they then be brought back to town and that the men agreed to that condition. Instead of stopping at the Six-Twelve store, however, the truck merely slowed down and continued farther out of town at a high rate of speed. The girls then became "suspicious” and frightened. Their requests to be let out of the truck were ignored. There was evidence that the girls were told by Robinson that the "only way we could get out was the two of us to have sex with them”; otherwise, they would not be let out until the group arrived in Wilmington, Delaware. There was also evidence that Robinson told the girls that if they "tried anything, they had something under the front seat for us,” and that the truck continued at a rapid rate without stopping at any stop signs. Finally, at a point approximately 20 miles from Easton, the youngest of the girls jumped out of the truck and was seriously injured. Appellant then stopped the truck and the other three girls got out and two of them went to the nearby home of Mr. Philip L. Walbert to seek assistance for their injured friend. After telling his son to telephone for the police and an ambulance, Walbert drove the two girls back to the scene where the injured girl lay in the road. When they arrived, the appellant and Robinson drove from the scene, but not before Walbert was able to get the license tag number of the truck.

Testifying in his own defense, Dean’s version of the relevant events negated any notion that the girls were driven anywhere without their consent. On the ride out of Easton he said he heard no complaints from them and that he was driving them to his father’s home to continue the "partying” he thought they were enjoying. He said he stopped at all stop signs.

Obviously, the jury, as was their prerogative, believed the victim’s version. Keeping in mind that it is not our function to decide, on conflicting evidence, the guilt or innocence of an accused, we think the evidence was legally sufficient for the jury to have concluded beyond a reasonable doubt that what began as a voluntary joy-ride became a nonconsensual, and therefore unlawful, carrying away amounting to statutory kidnapping.

II

Another issue raised by the appellant concerns the propriety of the jury selection process. He urges that his convictions must be reversed because he was "denied due process of law by the action of the trial court in denying his challenge to the array and continuing the trial for sixteen days without completing jury selection and specifically in the midst of the peremptory challenge stage of the jury selection.”

We agree that under the circumstances that existed the procedure employed by the trial court resulted in a denial of due process. We must therefore reverse the judgments of conviction and remand the case for a new trial.

The circumstances surrounding the jury selection were unusual. The case was called for trial on October 30, 1979. It appears that at a pre-trial conference a few days before, Dean’s counsel had requested that he be allowed 80 peremptory challenges and the State 40, because the four count charging document contained four separate charges of kidnapping, on each of which Dean would have been subject to a sentence of twenty years or more of imprisonment. Without objection from the State, the judge granted the request. It further appears that the Clerk of the Court, who was also the "Jury Manager” (see § 8-202 of the Cts. & Jud. Proc. Article, Code, 1980 Repl. Vol.), was made aware of the possibility that 120 peremptory challenges would be used. Nevertheless, on the day of trial only 101 veniremen were present in court. It seems that the Clerk had given the Sheriff a list of "between 140 and 150” persons to be summoned for jury duty for this particular case, but had excused all but 101 for various reasons ("they were out of town, sickness, a lady ... whose mother that day had to have chemotherapy treatments, and things of that nature”).

On the morning of trial, the trial judge and counsel met in chambers to discuss various preliminary matters. The following colloquy occurred concerning the jury panel:

"MR. BRAGER [Defense Counsel]: So we have 120 jurors?
THE COURT: No, we don’t, we have 102.[] We’ve had a job getting that many. We’ve gotten every warm body we could find.
MR. BRAGER: 102, and the defendant has 80 strikes, and the State has 40?
THE COURT: That’s right.
MR. BRAGER: What happens if we run out of jurors?
MRS. O’CONNOR [The Prosecutor]: We won’t. I’m not going to use 40 strikes.
MR. BRAGER: Okay, that’s the answer.”

During the voir dire stage of the jury selection process, 8 of the panel were excused for cause, leaving only 93 prospective jurors. Using the alternating challenge method (Md. Rule 753 b 2), the prosecutor and defense counsel proceeded to exercise their peremptory challenges. After the defense had exercised 64 peremptory challenges and the State 15, 12 jurors had been seated in the jury box but not sworn. At this point the judge reminded defense counsel that only two panelists remained and asked if he "insisted] on taking the 80.” Counsel replied, "The defense fully insists on taking the 80.” After further colloquy, the prosecutor objected "to the continued procedure” of allowing 80 peremptory challenges to the defense and 40 for the State. Although she had acquiesced in the procedure to that point, she told the judge that she "didn’t check the rule, and did not look at the rule this morning, not thinking that we would approach the problem that we have this afternoon,” but the rule (Maryland Rule 753 a 1), she said, should be interpreted to permit only 20 peremptory challenges for the defense and 10 for the State. She asked that one of the two remaining panelists be seated as an alternate and that the trial proceed. The judge replied:

"THE COURT: Your motion is overruled, as we do not interpret that Rule the way you move that we should. And furthermore, the motion comes entirely too late. If the Court were to be persuaded by your motion, then I believe the defendant could successfully attack the convictions, if convictions did ensue, on the basis that the State was allowed more challenges than they had a right to have. You already used 14 [actually 15].

We pause here to note that the prosecutor was correct in her interpretation of Rule 753 a l. See Mason v. State, 12 Md. App. 655, 680-681, 280 A.2d 753 (1971), where, speaking for the Court, Judge Moylan said:

"The problem is one of elementary multiplication.... If the most serious charge on trial is a capital or penitentiary offense/- the multiplicand is twenty; the multiplier is not the number of charges on trial but rather the number of persons on trial — in this case one.”

The alternate challenge procedure continued. The defense challenged one of the jurors already in the jury box and also the two remaining veniremen. At that point, there were 11 jurors seated but not sworn and no veniremen left. The judge postponed the case to November 15, 1979. Defense counsel objected to the postponement, but did not suggest or request at that time any alternative action that could have been taken by the judge. He did state, however, that "one of the reasons that we objected to the postponement is because these people [the 11 unsworn jurors] can easily read about this matter” during the sixteen day postponement. The judge said he would "caution them not to talk about it or read anything about it.” He then told the 11 prospective jurors: .. LT]he Court wants to make it abundantly clear to you that under no circumstances are you to discuss this case with anyone or to read anything about it....”

On November 6, 1979, appellant filed a "Challenge to the Array” in which he objected to the "bifurcated jury selection process.” He asked the Court, among other things, "to discontinue all jury selection proceedings at this time leaving the State to assume full responsibility for taking the next step necessary to prosecute the above captioned case.” At the same time, the State, also apparently concerned about the propriety of the jury selection procedure being used and concerned also that the case might not be tried within the 120 day limitation of Md. Rule 746 a, filed a "Motion to Change Trial Date.” The State’s motion reiterated its argument that a total of only 30 peremptory challenges should have been allowed (20 for the defendant and 10 for the State) and, therefore, "Neither the State nor the Defense will be able to obtain a fair and impartial jury and a fair and impartial trial from the venire panel available.” The motion asked that the case be postponed until after February 25, 1980, when a "new petit jury panel will be qualified” at which time "a fair and impartial jury may be impaneled with the proper number of strikes used.. ..”

A hearing on appellant’s motion challenging the array was held on November 7, 1979. At the hearing the State withdrew its motion to change the trial date, stating it now believed that the lack of objection by the State or by the defense to the procedure that had been used to that point in the proceedings "has been tantamount to an agreement [by all concerned that the defense was entitled to 80 peremptory challenges and the State 40].” The judge then acknowledged that his initial interpretation of Md. Rule 753 a 1 was in error, citing Mason v. State, supra, but said that "now that we’re embarked on this process of 80 — 40, it seems to me that to be fair to both sides, I must continue to pursue this course.” He rejected, however, the principal argument made by the defense concerning the bifurcation of the peremptory challenge stage of the jury selection process. He ordered the process to continue on November 15th "to allow both sides to exercise all their peremptory challenges if they care to do so.”

On November 14th, the appellant filed a motion for reargument on his challenge to the array. This motion was heard and denied on the morning of November 15th. At that time the State and the defense had been presented with a list of additional prospective jurors containing 48 names. It appears that the names were taken from the "master list” of those who had been qualified for jury duty several months before and included some of the persons who had been excused before the list of 101 names was presented to the parties on October 30th. At the hearing, defense counsel took the witness stand and under oath explained his objection to the bifurcation of the peremptory challenge stage of the jury selection process as follows:

"THE WITNESS: I struck the jurors under the circumstances, according to the list that I had available on that day. Those jurors were struck. Then we’re presented with another jury list of 48 jury members today. Now, I’ve looked this jury list over, and read it in conjunction with the other jury list.
And it’s my contention that I would have kept some of the jurors that I struck on October the [30th], as opposed to some of the jurors that we’re presented with today. And I would like to have those jurors back, but I know I can’t get them back, according to the law.
THE COURT: Let me put a question to you. Do you know anybody on that list?
THE WITNESS: I don’t know them personally. But their backgrounds would indicate to me that I would not want them on the jury. We’re interested in a certain type of juror.
THE COURT: I understand that.
THE WITNESS: Who will associate with the type of crime that we have here. And I know elderly people, and maybe females would not be the kind of jurors that I would want.”

In denying the defense motion the judge reiterated his belief that although he had agreed to allow the defendant 80 challenges he had done so erroneously and "had we gone according to the rules, you would have gotten your jury out of the veniremen that were proposed on October the [30th].” The judge had earlier opined that "if we had run out of what you are entitled to, there might be some merit in your argument.” Under the circumstances, however, he found no prejudicial irregularity in the proceedings.

After voir dire questions were asked of those on the second jury list and a number excused for cause, the peremptory challenge process continued where it left off on October 30th. After both the State and the defense exercised additional peremptory challenges a full jury and one alternate were finally sworn. The defense had exercised a total of 80 challenges and the State 17.

Ill

Citing Spencer v. State, 20 Md. App. 201, 314 A.2d 727 (1974), the appellant argues that the bifurcated nature of the peremptory challenge stage of the jury selection process deprived him of the "right of informed and comparative rejection.” Speaking for this Court, Judge Moylan said in Spencer, at 208:

"Although the peremptory challenge, to be sure, only entitles a defendant to reject jurors and not to select others, there is at least some element of indirect selection inexorably at work in the very process of elimination. The right to reject need not be exercised in the dark, but is, under circumstances such as those here available, a right of informed and comparative rejection.”

Although the circumstances in Spencer were different from those in the present case, we think the same principles apply. Section 8-301 (c) of the Cts. & Jud. Proc. Article provides: "The clerk of the court shall provide a sufficient number of prospective jurors to allow the parties to exercise the peremptory challenges permitted by this section or Rule 746 [now Rule 753].” With it known to all concerned, including the clerk, that at least 132 prospective jurors would be needed to enable the defense and the State to exercise the number of challenges that had been agreed upon, the furnishing by the clerk of only 101 veniremen obviously violated the spirit, if not the letter, of this statutory mandate. It is true that the clerk called the shortage to the attention of defense counsel who in turn inquired of the court, "What happens if we run out of jurors?” That the list of 101 veniremen would be exhausted if both sides exercised an aggregate of 120 peremptory challenges must have been obvious to everyone. It was at this point, before the selection process began, that the prosecutor assured the court and defense counsel that "we won’t [run out]” because "I’m not going to use 40 strikes.” Consequently, we do not criticize the court for not invoking at that point the provisions of Section 8-208 of the Cts. & Jud. Proc. Article:

"(c) Unanticipated shortage of available petit jurors. — If there is an unanticipated shortage of available petit jurors in the qualified jury wheel, the court may require the sheriff to summon a sufficient number of petit jurors selected at random from the voter registration lists in a manner ordered by the court consistent with §§ 8-102 and 8-103 of this title. (An. Code 1957, art. 51, §§ 7, 9; 1973, 1st Sp. Sess., ch. 2, § 1; 1978, ch. 544.)”

-We think, however, that when the list of 101 veniremen was exhausted before the defense had exercised its agreed upon peremptory challenges, the court should have granted appellant’s challenge to the "second” panel of prospective jurors and commenced the selection process anew with a sufficient number of prospective jurors to allow the parties to exercise the peremptory challenges permitted by Rule 753, i.e., 20 for thé defense and 10 for the State.

We recognize, of course, that both the appellant and the State received more peremptory challenges than they were entitled to under Rule 753. But this fact we consider irrelevant under the circumstances. Although assured by the State that the original list of 101 veniremen would not be exhausted before the appellant exercised his 80 peremptory challenges, the list was nevertheless exhausted when he still had 13 challenges left — to which the State and the court had agreed he was entitled under the previously established ground rules. It may well have been that the State did not foresee that eight of the 101 veniremen would be struck for cause or that it was hoping the appellant would not use all 80 challenges. The fact remains that through no fault of the appellant the list was exhausted before all 80 challenges were exercised. At that point to require the remaining challenges to be made from a hitherto unknown list of prospective jurors deprived the appellant of the right of "informed and comparative rejection”, Spencer v. State, supra, at 208, and to that extent impaired his right to the use of peremptory challenges. Such impairment, we think, requires that the judgments in this case be reversed as a denial of due process. Spencer v. State, supra; see also Swain v. Alabama, 380 U.S. 202 (1965), where the Supreme Court recognized that the right of comparative rejection is an important aspect of the right to peremptory challenges and that, "the denial or impairment of the right [to challenge] is reversible error without a showing of prejudice.” (Emphasis added).

IV

In view of our disposition of the case, it is unnecessary to consider the remaining issues presented by the appellant.

Judgments reversed; case remanded for new trial.

Costs are not reallocated as part of the judgment of this court pursuant to Maryland Rule 1082 f.

      . The record indicates that the correct number of veniremen on the list furnished counsel was 101 rather than 102.

      . Rule 753 a 1 provides:
      "1. Cases Involving Death, or Imprisonment for Life or Twenty Years or More.
      In a trial in which the defendant is subject, on any single count, to a sentence of death, life imprisonment or twenty years or more of imprisonment, except for common law offenses for which no specific penalty is provided by statute, each defendant is permitted twenty peremptory challenges and the State is permitted ten peremptory challenges for each defendant.”

      . The Rule as then written (former Rule 746) allowed a defendant 20 peremptory challenges where the offense is punishable by "confinement” of any duration, not 20 years as provided by the present Rule.

      . Under the Rule as then written, the deadline for trial was November 16, 1979 and section b of the Rule provided that upon motion and for "extraordinary cause shown” the date may be changed by the county administrative judge or his designee. By rule amendment, effective November 16, 1979, the time was extended to 180 days, and by statute (Laws of Md. 1980, ch. 378) effective July 1, 1980, the standard for permissible continuance was changed to "good cause shown” rather than "extraordinary cause shown.”


author: Couch, J.,

text:
    A. V. LAURINS & COMPANY, INC. et al. v. PRINCE GEORGE’S COUNTY, MARYLAND
    [No. 1,
    September Term, 1980.]

      Decided October 8, 1980.

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

      John H. MacVey, with whom was Alan M. Perlman on the brief, for appellants.

      Robert N. Stokes, Jr., Associate County Attorney for Prince George’s County, with whom were Robert B. Ostrom, County Attorney for Prince George’s County, and Michael O. Connaughton, Deputy County Attorney for Prince George’s County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

On November 30, 1979 the Circuit Court for Prince George’s County, Maryland declared fraudulent a conveyance made between the appellants, A. V. Laurins & Company, Inc. and LAV Shell Company, Inc., in 1975. The Circuit Court imposed a lien upon the real property involved and appointed a trustee to sell the property. The Court also adjudged the appellants Laurins and Norman to be in contempt for their failure to appear at trial on July 31,1979, pursuant to subpoenas. Each of the appellants was fined $2,000.00.

At a subsequent hearing the Circuit Court assessed attorney’s fees of $1,500.00 against the appellants.

From these decisions of the Circuit Court the appellants appeal and present three questions:

"1. Did the Court below err in reaching conclusions not supported by the evidence of record; in ruling that the circumstances of this case shifted the burden of proof to the defendants; in ruling that defendants could not produce any evidence of any nominee agreement or any credible evidence of an antecedent debt; and in concluding that the conveyance of certain condominium units was fraudulent?
2. Did the Court below err in finding defendant Laurins and defendant Norman guilty of direct contempt of court when the evidence of record shows that defendants, if contemptuous, should have been charged with constructive criminal contempt requiring compliance with the procedures specified by Rule P4?
3. Was the assessment of $1,500.00 against defendants for attorney’s fees for the entire case arbitrary, unreasonable, and capricious when the record shows that the County’s motion for costs related only to discovery and that defendants did comply with the Court order for discovery?”

We find that the Circuit Court did not err in determining that the conveyance was fraudulent. The Court did err, however, in finding Laurins and Norman guilty of direct criminal contempt. Furthermore, the Court improperly determined the assessment of attorney’s fees against the appellants.

The reasons for our findings and additional facts concerning this case will be presented in the discussion of the issues.

I. — FRAUDULENT CONVEYANCE

The appellants request that we reverse the decision of the Circuit Court for Prince George’s County which set aside the conveyance of certain condominium units. We decline to follow this request and instead we affirm the finding that the conveyance was fraudulent as defined by Md. Com. Law Code Ann. § 15-207.

This provision states:

"Every conveyance made and every obligation incurred with actual intent, as distinguished from intent presumed in law, to hinder, delay, or defraud present or future creditors, is fraudulent as to both present and future creditors.”

A. V. Laurins & Company, Inc. (AVL Co.) was a Delaware corporation authorized to do business in the State of Maryland with offices at 8401 Connecticut Avenue, Suite 700, in Chevy Chase. Its corporate officers and directors were Aleksandrs V. Laurins, James G. Norman, and Charlene Baden. All of the stock of AVL Co. was owned by LAV Shell Company, Inc., a Maryland corporation with offices in the same Suite 700 and with the same corporate officers and directors as AVL Co.

As a management and real estate development corporation AVL Co. was the general partner in several limited partnerships. These partnerships included the Co-Op Development Limited Partnership (Development), formed in 1972 by AVL Co., and the National Mortgage Corporation (NMC). Development was formed to acquire, renovate, convert to condominium and sell a housing project known as Coronado Apartments in Adelphi, Maryland. In 1973 Development obtained legal title to the apartments and sold them as condominium units. Shortly thereafter ten of the individual purchasers involved in the condominium conversion filed complaints with the Prince George’s County Landlord-Tenant Commission. They contended that certain sums paid to AVL Co. exceeded the amount permitted by the County Rent Control Law which became effective June 22, 1973.

Following hearings on the complaints the Executive Director of the Landlord-Tenant Commission issued an order directing AVL Co. to reimburse the ten complainants various amounts totaling $2,065.44. The Executive Order was issued March 11, 1975.

Two days later, on March 13, 1975, AVL Co., as general partner of Development, conveyed Coronado condominium units 703A and 704A to LAV Shell Company, Inc. On March 14,1975, Laurins and Norman, as officers of AVL Co., dated a document purporting to dissolve the limited partnership between AVL Co. and NMC. This document was notarized on May 29,1975 by Charlene Baden. There was no signature on the document on behalf of the limited partner, NMC, nor was any certificate of cancellation recorded. The document itself purported to commit $13,350.00 of the cash assets of the limited partnership

"as a reserve for its liabilities and transferred to Metropolitan Mortgage Bankers, Inc., for the purpose of payment of Accounts Payable, Warranties, the Noble lawsuit, the Rent Control Suit and other potential law suits.”

Laurins and Norman were also corporate officers of Metropolitan Mortgage Bankers, Inc.

On April 1, 1975, the deed conveying condominium units 703A and 704A was recorded and transfer taxes paid. The deed bears the notation for mailing of 8401 Connecticut Avenue, Chevy Chase, Maryland. That same month, management of the Coronado units was taken over by Shannon & Luchs. This company, however, continued to make receipts and disbursements for the account of "A.V.Laurins” having received no notice of change of ownership. LAV Shell Co., Inc. did inform the Landlord-Tenant Commission in October, 1975 that AVL Co. had no assets with which to satisfy the rent reimbursement order. The Commission was also informed by LAV Shell that AVL Co. was no longer in business. More accurately the authorization for AVL Co. to do business in Maryland had been cancelled on December 16, 1974 by the State Department of Assessments and Taxation. AVL Co. had failed to file the required 1974 foreign ordinary business corporation personal property return.

Prince George’s County filed a Bill of Complaint on January 5, 1976 to enforce the Executive Order against AVL Co., Laurins and Norman. Ten days later Laurins moved to San Francisco. On September 13,1977, the Circuit Court for Prince George’s County entered judgment in favor of the County and against only the appellant AVL Co. in the amount of $2,065.34. No appeal was taken from this judgment.

The County returned to the Circuit Court on March 10, 1978, filing a Bill of Complaint against AVL Co., LAV Shell Co., Inc., Laurins, and Norman, to establish a fraudulent conveyance and impress a lien on real estate.

At the hearing on July 31, 1979, the County contended that the conveyance of March 13,1975 was made with actual fraudulent intent to hinder, delay or defraud the County from satisfying the award of $2,065.34. The County presented evidence that the condominiums were assessed to LAV Shell Co., Inc., but that during a four year period from 1975 to 1979 the benefits of the property went to Laurins.

Charlene Baden testified for the defendants. She said that LAV Shell Co., Inc. never owned any units in Coronado, but that LAV Shell acted as "nominee” for Co-Op Mortgage Investment Associates (Co-Op), a corporation formed by AVL Co. and Wyoming Associates in 1973. Defense testimony indicated that Co-Op, acting through AVL Co., had borrowed $231,758.00 from NMC. This purported loan was documented by copies of sheets from Co-Op’s record books, dated 1973. AVL Co. loaned this $231,758.00 to Pleasant Hill Associates, a limited partnership of which AVL Co. was the general partner. As general partner in Pleasant Hill Associates, AVL Co. agreed to repay the loan by assigning to Co-Op the AVL Co. interest in Development. At the time of the repayment agreement between AVL Co. and Co-Op, $90,000.00 was still due on the loan. Co-Op’s interest in Development (the Coronado project) was valued by the defendants at $120,000.00. No notes or other evidence of bona fide debts incurred with valid consideration were introduced by the defendants. No nominee agreement was presented to indicate the proper relationship between Co-Op and LAV Shell Co., Inc.

Prince George’s County asserted that a fraudulent conveyance occurred when the condominium units were transferred from Development to LAV Shell Co., Inc. in an arrangement with Co-Op. This conveyance did render AVL Co. insolvent and unable to reimburse the Coronado tenants.

The defendants at the hearing and the appellants in this appeal have argued that no fraud occurred in the transfer, but rather that the $90,000.00 antecedent debt was paid'off by Co-Op’s receiving assets from the dissolution of Development. Payment of Co-Op’s loan took the form of $61,678.00 in notes receivable, cash of $3,600.00, and the condominiums which the appellants value at $26,200.00.

After assessing the evidence presented at the hearing, the chancellor ruled in favor of the County. Based on the continued disbursements from Shannon & Luchs to Laurins following the transfer of the deed from AVL Co. to LAV Shell Co., Inc., she determined:

"[T]here was no real delivery even intended in this situation as no rights or duties with respect to the property were really changed, as the debtor retained the rents and possession of the property.”

No evidence was found of any actual consideration passing from LAV Shell Co., Inc., the named grantee/nominee, to the grantor corporation. The chancellor did find in the interlocking relationship of the parties such circumstances that shift the burden to the defendants of establishing the bona tides of the transaction. Berger v. Hi-Gear Tire & Auto, 257 Md. 470, 263 A.2d 507 (1969). Based on the presented evidence the chancellor determined that the defendants did not meet their burden of proving either the validity of the conveyance or the formation of a resulting trust for the benefit of Co-Op. From the lack of adequate evidence that Co-Op paid the purchase price for the property and from the assumption that the property had risen in value from the $26,200.00 prior to conversion, the chancellor found that "the consideration in this case was a mere bookkeeping fiction.”

In view of all the facts and circumstances surrounding the transfer of the condominium units, the court found the conveyance was fraudulent. Viewing the evidence in a light most favorable to the prevailing party, we find no indication that the chancellor’s decision was clearly erroneous. Md. Rule 1086. A finding of fact concerning the adequacy of consideration in an action to set aside a conveyance will not be disturbed when there was evidence to support the chancellor’s conclusions. Beccio v. Tawnmoore Apts., 265 Md. 297, 289 A.2d 311 (1972). Thus, the conveyance of the condominium units from AVL Co. to LAV Shell Co., Inc./Co-Op must be set aside as violative of Md. Com. Law Code Ann. § 15-207.

The party alleging that a conveyance is fraudulent bears the burden of proving the fraud. Berger v. Hi-Gear, supra; Sullivan v. Dixon, 280 Md. 444, 373 A.2d 1245 (1977). Evidence of certain circumstances, however, may shift the burden to the grantee of a conveyance to prove that he is a bona fide purchaser for value. Kline v. Inland Rubber Corp., 194 Md. 122, 69 A.2d 774, 780 (1949); Berger v. Hi-Gear, supra at 475. This procedure has long been recognized by the Maryland courts. In McCauley v. Shockey, 105 Md. 641, 66 A. 627 (1907), the Court of Appeals stated:

"From the nature of the case, a creditor attempting to set aside a conveyance as fraudulent can seldom prove as an independent fact the knowledge of or particpation in the fraud of the grantor by the grantee. That knowledge or participation must be gathered from the various facts and incidents composing the transactions and its environment. The primary presumption here as elsewhere is in favor of innocence and good faith, but a state of facts may be shown which will negative that presumption and cast upon the grantee the burden of proving his good faith and non-participation in the fraudulent purpose of the grantor.” Id. at 646.

In the previous cases the burden of proof was shifted to the grantee because the individual defendant-grantee chose not to appear at the hearing (Berger), and because of concealment of the ownership of property and the purpose of a mortgage (Kline). In the present case the chancellor shifted the burden of proof after she found "suspicious circumstances” in the relationship between the grantor and the grantee. By our examination of the record, with its description of the business of the parties and their corporations, we find sufficient evidence to sustain the chancellor’s decision to place the burden of proof on the defendants.

Moreover, we agree with the chancellor that the defendants failed to meet their burden and prove the validity of the conveyance. Where an antecedent debt is asserted as consideration for a transfer and as a defense to a charge of fraud, the party bearing the burden of proof must demonstrate the adequacy of the consideration and the good faith of the party. Drury v. State Capital Bank, 163 Md. 84, 88, 171 A. 176 (1932).

Generally an antecedent debt constitutes valid consideration so as to avoid liability under § 15-207. Sullivan v. Dixon, 280 Md. 444, 373 A.2d 1245 (1977). The Court of Appeals, however, has further stated:

"On the other hand, where a transfer has been made for a valuable consideration the Court may possibly still find fraudulent intent from other circumstances, such as insolvency or heavy indebtedness of the grantor, litigation pending or anticipated, relationship between the parties, concealment or secrecy, and transfer of the debtor’s entire estate. None of these indicia of fraud alone necessarily proved fraud; but they do warrant an inference of fraud, especially where several of the indicia concur.”

Savings Bank v. Sauble, 183 Md. 628, 631, 39 A.2d 862 (1944). See also Johanna Farms v. Elliott Equip. Co., 278 Md. 137, 148, 360 A.2d 436 (1976).

In the present case the chancellor had sufficient evidence reasonably to infer the existence of a fraudulent conveyance. The defendants did not explain AVL Co.’s insolvency, their interlocking business relationships and the loose bookkeeping system to the satisfaction of the chancellor, and thus the validity of the conveyance remained questionable. The chancellor could then reasonably make her conclusion.

The Court of Appeals traditionally has sustained the voiding of questionable transfers between businesses owned by the same parties. Sakelos v. Hutchinson Bros., 129 Md. 300, 99 A. 357 (1916). More recently we have been willing to disregard the corporate facades used by a party to avoid payment to creditors. Colandrea v. Colandrea, 42 Md. App. 421, 401 A.2d 480 (1979).

Thus, the decision of the Circuit Court for Prince George’s County to set aside the conveyance of the condominium units must be affirmed.

II— CONTEMPT

(A) SERVICE OF SUBPOENAS

The individual appellant Laurins moved to San Francisco on January 15, 1976. Norman was also living in California by 1979. A protective order was granted in favor of Laurins and Norman which permitted them to remain in California during the discovery phase of the litigation. On July 26, 1979, however, subpoenas duces tecum were issued for Laurins and Norman, requiring their appearance at the trial scheduled for July 31, 1979. Laurins and Norman were directed by the subpoenas to bring with them various documents relating to their businesses including records revealing the assets of AVL Co. and LAV Shell Co., Inc., and concerning the dissolution of Development.

These subpoenas duces tecum were served upon the defendants’ counsel of record on July 27, 1979. Laurins and Norman did not appear at the trial on July 31, 1979. Prince George’s County moved at the beginning of the trial that Laurins and Norman be held in contempt of court and that a writ of attachment be issued for them. Responding to defense counsel’s questioning of the sufficiency of the subpoenas’ service, the chancellor ruled that Laurins and Norman had been served.

We agree with the chancellor that under Maryland Rules of Procedure the service of a subpoena duces tecum upon counsel for parties is sufficient service to require their presence at trial and their production of the required documents.

Md. Rule 306 a. 1. provides in part:

"A pleading, notice or other paper requiring service shall be served upon the parties to the action or upon their attorneys . . . .”

Md. Rule 306 c. states in part:

"When service of a pleading, notice or other paper requiring service is to be made upon a party represented by an attorney, the service shall be made upon such attorney unless actual service is ordered by the court....”

The appellants submit that a subpoena duces tecum is not within the meaning of the phrase "pleading, notice or other papers requiring service.” They do not, however, offer any Maryland authority on this point. The appellees extend Tvardek v. Tvardek, 257 Md. 88, 261 A.2d 762 (1970), to support their proposition that "where service of process is effected upon counsel in a case still in active litigation, due process is satisfied.”

In Tvardek the Court of Appeals held that procedural due process was satisfied when a party’s attorney of record was served with a petition and order to show cause in a child support case. The Court considered the decision in McSherry v. McSherry, 113 Md. 395, 77 A. 653 (1910) to be dispositive of this issue. As in Tvardek, the McSherry case involved the continuation of domestic relations litigation in which personal service upon the defendant was not required. The defendant in Tvardek, however, did receive actual knowledge of the modification proceeding, but the Court of Appeals did not indicate that actual knowledge was essential for due process.

Although Tvardek and McSherry were domestic relations cases they are similar to the present case in which the Circuit Court for Prince George’s County acquired jurisdiction over Laurins and Norman, and served the subpoenas on their counsel. As the Court of Appeals stated in McSherry, supra at 401:

"[T]he defendant could not deprive the Court of its jurisdiction by leaving the State.”

The McSherry decision relied on the authority of McKim v. Odom, 3 Bland 407, 429 (1828), in which Chancellor Bland said:

"The Court has substituted service, in several cases, where the defendant may have notice of the proceedings, and where, in case he goes out of the way, there is a person who he has named in Court as his agent, and who the Court can look upon as such. * * * As in case of an injunction to stay proceedings at law, the attorney-at-law is such an agent, who the Court can regard as one charged with the whole defense of the matter in equity; and so too, where a defendant, who lives abroad, refuses to answer, after having appeared as required by the subpoena with which he has been served, the Court will order service of his solicitor to be deemed good service of a subpoena to answer an amended bill.”

The McKim decision has been applied to the general proposition that service of the subpoena duces tecum for a non-resident may be made upon the party’s solicitor. Miller, Equity Procedure § 115. See also Higgens v. California Prune and Apricot Growers, 282 Fed. 550, 554 (2d Cir. 1922), in which Circuit Judge Rogers stated:

"It is fundamental that no judicial proceedings can be had against any person until he has been notified thereof by lawful service of process; and in an action in personam he must be served with process within the territorial jurisdiction of the court from which the process issued. But there are certain classes of cases in which the courts, independently and without express statutory authority, have for more than a century assumed the right to allow service to be made within their jurisdiction upon some person for the absent defendant and have regarded such substituted service as'valid.”

This Court must consider the general concepts of equity procedure in light of the specific statements of Md. Rule 306. Because a subpoena duces tecum does require service under Md. Rules 114 and 115, service upon a party’s attorney complies with Md. Rule 306.

(B) DIRECT CRIMINAL CONTEMPT

Responding to the motion made by counsel for Prince George’s County, the court, in its memorandum of November 30, 1979, found Laurins and Norman in direct criminal contempt pursuant to Md. Rule P3. For their failure to appear on July 31, 1979, Laurins and Norman were each fined the sum of $2,000.00.

Md. Rule P3 provides:

"a. Summary Punishment.
A direct contempt may be punished summarily by the court against which the contempt was committed.
b. Order of Contempt.
Where a direct contempt is committed, the court shall sign a written order to that effect. The order shall recite the facts, be signed by the judge and entered of record. The order shall state which of the facts were known to the court of its own knowledge and as to any facts not so known, the basis for the court’s finding with respect thereto.
c. Record.
The record in such cases shall consist of
(1) such order of contempt,
(2) any affidavit filed by the defendant,
(3) any affidavit filed by the State’s attorney in support of the order of contempt, if the court directed him to investigate or prosecute the contempt, and
(4) any testimony offered.”

The appellants contend that they did not commit such direct contempt in the presence of the court that would warrant summary punishment pursuant to Md. Rule P3.

We agree with this contention, and find that the Circuit Court erred in its application of Md. Rule P3.

Maryland law classifies contempts as civil or criminal, and either of these may be direct or constructive. The various categories are not mutually exclusive, thus permitting such permutations as a direct criminal contempt or a constructive civil contempt. State v. Roll, 267 Md. 714, 727, 298 A.2d 867 (1973). In Roll the Court of Appeals discussed the distinction between criminal and civil contempts, finding that criminal contempts are positive actions which offend the dignity of the court. By holding a party in direct criminal contempt the court vindicates its authority and punishes the offender. On the other hand, the power of the court to hold a party in civil contempt for his failure to obey a court order is used to benefit another party in the proceedings.

Maryland preserves the distinction between criminal and civil contempt, using the criminal contempt process as punishment for past misconduct, and using the civil contempt process to coerce future compliance. Roll, supra at 728.

From the evidence in the present case we find that the contempt judgment against Laurins and Norman was designed as punishment for their non-appearance in court, rather than as a means of coercing their appearance at a future trial. Therefore, the appellants were convicted of criminal contempt.

In this State a civil contempt may be proven by a preponderance of the evidence,whereas a criminal contempt must be shown beyond a reasonable doubt. Winter v. Crowley, 245 Md. 313, 226 A.2d 304 (1967). Although a contemnor in a criminal contempt proceeding in Maryland is not entitled to indictment by a grand jury and may not have a right to a jury trial, additional safeguards are available to him. The burden of proof is increased, the accused cannot be compelled to testify against himself, he cannot be placed in double jeopardy, and except when a contempt may be dealt with summarily, the panoply of fundamental due process rights are available. Roll, supra at 731.

The chancellor treated the absences of Laurins and Norman as direct contempts and acted summarily under Md. Rule P3. Md. Rule PI (a) defines direct contempt as one committed in the presence of the court, or so near to the court as to interrupt its proceedings. This definition and the procedures of Md. Rule P3 were analyzed by the Court of Appeals in Roll, supra at 734:

"We think the content and meaning of the phrase 'in the presence of the court’ as used in Rule PI a and the procedure sanctioned by Rule P3 for conducting a direct contempt proceeding must be framed against a constitutional background. When this is done, the picture is clear. A direct contempt occurs when the actions of the contemnor interrupt the order of the courtroom and interfere with the conduct of business. When such disruption occurs within the sensory perception of a presiding judge he will have a sufficient knowledge of the contemptuous act which tends to interrupt the proceedings and will not have to rely on other evidence to establish all the details, though some of them can be supplied by additional testimony.
When, as in the case here, the judge does not have personal knowledge of the facts and must learn of them totally from others, direct contempt proceedings are not authorized. The reason such proceedings are not permitted is that there is no need for summarily disposing of an alleged contempt when the behavior of the accused is not personally known to the judge or does not occur so near to the court as to interrupt proceedings then being conducted by the judge. Here, summary proceedings were not immediately necessary to vindicate the court’s dignity and the appellees’ actions did not imperil any proceedings being conducted in open court.”

As in Roll, so in the present case we find nothing in the record to indicate that the Circuit Court was interrupted by the appellants’ absence. To the contrary, the trial proceeded without them after the appellee’s counsel stated a desire to go forward with the trial. Additionally, the record does not show that the chancellor had personal knowledge of the facts which might have explained or even excused the appellants’ absence.

The Court of Appeals in Roll found authority in the decisions of the U.S. Supreme Court for the reversal of unwarranted contempt proceedings. In Mayberry v. Pennsylvania, 400 U.S. 455, 91 S. Ct. 499 (1971), Justice Douglas concluded that a defendant in criminal contempt proceedings should be given a public trial before a judge other than the one insulted by the contemnor. Of course, in the present case there are no signs that the chancellor was "vilified” by the appellants’ absence. Nevertheless, we must apply the due process procedures described by the U. S. Supreme Court to the present case, because the chancellor imposed criminal sanctions on the appellants.

Criminal contempt procedures certainly may be initiated because of a party’s absence from court. Those procedures, however, must reveal sufficient evidence showing the party’s requisite willful disobedience or deliberate disruption. The Court of Appeals has affirmed orders of direct contempt coming from unjustified failure to appear in court where the trial court satisfied all of the requirements of Md. Rule P3. In Kandel v. State, 252 Md. 668, 250 A.2d 853 (1969), the Court found in the record sufficient facts stated in the judge’s signed order to enable the Court to decide whether a contempt was committed and whether the trial judge had jurisdiction to punish it. Similarly, the Court of Appeals has affirmed contempt judgments against a corporation for the failure to obey a subpoena duces tecum where there could be no justification for the disobedience. Ex Parte General News Bureau, 162 Md. 643, 161 A. 259 (1932). Should a court determine on the record that a party deliberately neglected a scheduled court appearance without a legitimate excuse, then by the evidence of that deliberate neglect the party may be subject to an adjudication of criminal contempt. Commonwealth v. Marcone, 410 A.2d 759 (Pa. 1980). Every failure to appear would not constitute a contempt, rather a finding of contempt could only be sustained after the establishment of an intentional disobedience or neglect. Marcone, supra at 765.

The contempt judgments against Laurins and Norman cannot stand because of the lack of proper procedure by the Circuit Court in its failure to provide the requisite evidence of the appellants’ criminal conduct. Such evidence is essential if this Court is to make an informed appellate review of the facts upon which the summary contempt conviction rests. United States v. Mars, 551 F.2d 711 (6th Cir. 1977); Weaver v. State, 244 Md. 640, 224 A.2d 684 (1966). If a "cold record” lacks the required development of evidence this Court need not presume the fairness of the chancellor at trial. Rather we may find from the record that the chancellor abused her contempt powers. Muskus v. State, 14 Md. App. 348, 359, 286 A.2d 783 (1972).

Proof of a direct criminal contempt must be shown beyond a reasonable doubt if a judgment is to be sustained by this Court. Goldsborough v. State, 12 Md. App. 346, 358, 278 A.2d 623 (1971). Where a chancellor has stated conclusions but has not specified the facts which allegedly gave rise to contempt within the presence of the court, the reasonable doubt standard has not been met. Robinson v. State, 19 Md. App. 20, 27, 308 A.2d 712 (1973). Because an unexplained absence is not a contempt committed in the actual presence of the court, the chancellor’s order does not meet the standard required to affirm the direct criminal contempt judgments. United States v. Delahanty, 488 F.2d 396, 400 (6th Cir. 1973). In Delahanty, Circuit Judge Celebrezze stated:

"We find that this matter should not have been dealt with summarily. While the absence of Appellants was obvious to the Court, the reasons for their absence were not. The Court did provide an opportunity for an explanation of their absence, but only after the Court had found Appellants to be in contempt.” Id. at 398.

Although we have held that the service of the subpoenas duces tecum upon the appellants’ attorneys constituted proper service for enforcement of the subpoenas, contempt proceedings would not be the proper method of enforcement absent actual notice to the appellants. In Re Abt, 2 B.R. 323 (Bkrtcy. E.D. Pa. 1980); Fidelity Mortgage v. Camilia, 550 F.2d 47 (2d Cir. 1976), cert. denied, 429 U.S. 1093.

The proper procedure for the Circuit Court’s enforcement of the subpoenas would have involved attachment and fine as described in Md. Rule 114 and interpreted by the Court of Appeals in Evans v. Howard, 256 Md. 155, 259 A.2d 528 (1969). Bench warrants could have been issued for the absent parties. See Hainesworth v. State, 9 Md. App. 31, 262 A.2d 328 (1970), cert. denied, 258 Md. 727.

This procedure was recently recommended by the Court of Appeals of Georgia. In Martin v. Waters, 259 S.E.2d 153 (1979), the Georgia court reversed a contempt judgment issued summarily in the appellant’s absence without notice or hearing. The court held that due process required that the accused be given an opportunity to be heard. The proper course for creating this opportunity would have been to have the appellant arrested and brought into court, and then to be dealt with in the manner provided by law.

After the appellants had been provided with all of their due process safeguards, then the Circuit Court could properly conduct a contempt hearing. See Reamer v. Reamer, 246 Md. 532, 229 A.2d 74 (1967), in which the Court of Appeals held that a contempt hearing could not be conducted until the defendant was served with a show cause order. Reamer involved the application of Md. Rule P4 for constructive contempt, not committed in the presence of the court. Constructive criminal contempt best describes the absence of Laurins and Norman, especially when no evidence indicates that the appellants’ absence directly interrupted the proceedings of the court.

This Court has previously applied Md. Rule P4, and its provisions for due process, to situations involving a defendant’s absence from court. In Pearson v. State, 28 Md. App. 464, 347 A.2d 239 (1975), Chief Judge Orth stated:

"The question is, what kind of contempt would such action constitute. Viewed in the light of the Court of Appeals’ construction of the language of Rule P3, §§ a and b, the offensive act of Pearson, assuming it was voluntary, was not a direct contempt. His failure to return to the courtroom after the luncheon recess did not, in fact, interrupt the order of the courtroom and interfere with the conduct of business. The trial promptly proceeded to verdict, without him as authorized by Rule 775, and without prejudice to the State, claimed or existent. The behavior of Pearson, therefore, constituted a constructive contempt. The court below, however, proceeded as if Pearson had committed a direct contempt by summarily punishing him. It had no authority to do so, and should have proceeded under Rule P4, applicable to constructive contempt.” Id. at 483 (Footnotes omitted.)

Thus, the contempt judgments against Laurins and Norman must be reversed and remanded for further proceedings.

Ill AWARD OF ATTORNEY’S FEES

After the Circuit Court ruled that it was unreasonable for Laurins and Norman to be required to travel to Maryland to be deposed, Prince Geoege’s County, on June 6, 1979, issued interrogatories to all the defendants. These interrogatories were served by mail. LAV Shell Co., Inc. filed answers on July 11, 1979, but at a hearing held on July 19, 1979 these answers were ruled not responsive. On July 13, 1979, the appellee moved to compel discovery of the defendant Norman. At the hearing on July 19, 1979, the chancellor isued an order requiring answers by July 25,1979. No previous signed order required Laurins and Norman to provide answers. On July 20, 1979, the appellee filed a motion for attorney’s fees pursuant to Md. Rule 417 c 3, and filed exceptions to the answers provided by LAV Shell Co. Counsel for the appellants filed "Further Answers to Interrogatories” on July 25, 1979, pursuant to the July 19, 1979 order.

At the trial on July 31, 1979, counsel for Prince George’s County again requested sanctions via costs against the defendants for the alleged failure to comply with discovery.

In her order of November 30, 1979, the chancellor stated:

"A review of the file clearly indicates a failure to comply with discovery and pursuant to Rule 422 b 5, the defendants will be assessed reasonable attorney’s fees caused by the failure to so comply and a hearing shall be had on the amount thereof.”

Md. Rule 422 provides in part:

"b. Failure to Comply With Orders for Discovery.
If any party or an officer or managing agent of a party or a person designated under section a2 (b) of Rule 405 (Designation of Person to Testify) fails to obey an order requiring him to provide or permit recovery, the court may make such orders in regard to the failure as are just, and among others the following:
5. Payment of Expenses.
In lieu of any of the foregoing orders or in addition thereto, if the court, after opportunity for hearing, finds that the failure to obey the order was without substantial justification, it shall require the party failing to obey such order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless it finds that other circumstances make an award of expenses unjust.”

At a hearing on December 27, 1979 the chancellor ordered the appellants to pay $1,500.00 in attorney’s fees on the basis of 151 hours of work. The chancellor told the parties:

"[M]y assessment of attorney’s fees are going to be — and I want to make it clear for the record not only included their failure to comply with discovery, but because of their failure to comply with their discovery at the trial of the issues of this case, the county had to go forward even without the information that they had sought in the discovery. I believe it was certain tax returns never have been provided. The county had to go forward because the court was not going to continue the case any longer.
With a review of the jacket, the reluctance of the defendants to comply with the rules during the discovery proceedings, the amount of time that was obvious that the county had to expend, for example, getting all of those photostatic copies of the deeds, conveyances at the time of trial may not have been necessary if the discovery had been complied with in this case.”

By our review of the evidence we find that the chancellor abused her discretion in assessing the $1,500.00 in fees. The affidavits submitted by the appellee do not specifically indicate which costs and attorney’s fees were actually caused by the appellants’ failure to provide certain tax returns pursuant to the order of July 19,1979. Rather, the appellee’s counsel stated that the reimbursement was being sought for time spent on the "action in toto,” and for matters that had "nothing to do with discovery.” Furthermore, the chancellor’s remarks at the December hearing do not clarify whether or not the $1,500.00 assessment was made solely to reimburse the appellee for discovery expenses incurred after issuance of the July 19,1979 order to comply with discovery. We must, therefore, remand the case for further proceedings in which complete evidence may be presented by the appellee showing its expenses that may be subject to reimbursement under Md. Rule 422 b 5.

Judgment affirmed as to the fraudulent conveyance; judgments vacated as to the contempt of Laurins and Norman, and case remanded for further proceedings; judgment vacated as to the assessment of attorney's fees, and case remanded for further proceedings.

Costs to be divided one-half to the appellants and one-half to the appellee.

      . Prince George’s County enforces the orders of the Landlord-Tenant Commission by application of Prince George’s County Code §§ 10-56, 13-142 (a), and 13-175 (b).

      . Sheets v. City of Lagerstown, 204 Md. 113, 118, 102 A.2d 734 (1954). The right to a jury trial is guaranteed if the offense may be punished by imprisonment of six months or more. Bloom v. Illinois, 391 U.S. 194 (1968).

      . The trial judge must have sufficient personal knowledge of the facts surrounding defendant’s nonappearance to find that defendant’s behavior was contemptuous. Murphy v. State, 46 Md. App. 138, 150, 416 A.2d 748, 755 (1980).


author: Gilbert, C. J.,

text:
    ST. PAUL FIRE AND MARINE INSURANCE COMPANY v. CHARLES J. MOLLOY et ux.
    [No. 3,
    September Term, 1980.]

      Decided October 9, 1980.

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

      Gary A. Godard, with whom were Roy L. Mason and Donahue, Ehrmantraut & Montedonico on the brief, for appellant.

      Terrell N. Roberts, III, with whom was Emmett H. Nanna, Jr., on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

The primary issue in this case is the extent to which an insurer waives available defenses upon the denial of liability of a claim asserted by an insured.

On January 22, 1978, the home of the appellees, Charles and Diane Molloy, was severely damaged by fire. When the fire occurred, the home was insured by the appellant, St. Paul Fire and Marine Insurance Co. The fire was discovered in the late afternoon by Mr. Molloy who, as the only one at home, drove some four miles to a local MacDonald’s to telephone a report of the fire, passing on the way the homes of several neighbors as well as a few commercial establishments. Upon return to his home shortly thereafter, he found that the fire department had the blaze under control. When the fire investigators attempted to question him, Mr. Molloy hurriedly drove off, leaving the investigators to initiate a full siren chase after him. Despite the theatrical effort, Mr. Molloy was able to elude his pursuers. Subsequent to the conflagration, the fire investigators filed a report stating that the fire, which started in the hall closet, was ignited intentionally through the use of "an open flame device, such as a match or cigarette lighter.” Soon afterwards, the Prince George’s County State’s Attorney Office charged Mr. Molloy with arson. The charge was later nol prossed.

In accord with the terms of the insurance policy, the appellees filed a proof of loss statement with the appellant on April 11, 1978. Appellant denied liability on June 28, 1978, in a letter written to the appellees’ attorney, stating as its reasons the appellees’ failure "to use all reasonable means to save and preserve the property at and after the fire.” At the time of the denial, the appellant possessed a copy of the fire investigator’s report which suggested the possibility of arson. Additionally, the appellant had knowledge of Mr. Molloy’s behavior at the time of and after the fire, and it was aware that arson charges had been brought against him, and that they were dropped. The appellees sued the appellant on the insurance contract to recover the loss sustained in the fire.

At trial, the appellees made a motion in limine to exclude all evidence indicating that Mr. Molloy had deliberately set fire to his home. A motion was also made by the appellees to sever Mrs. Molloy’s interest under the insurance policy from that of her husband. The court reserved ruling on both motions; each was, however, granted at the close of the appellant’s case. The jury was instructed to ignore all evidence suggesting that Mr. Molloy committed arson and to consider only whether both appellees had neglected to preserve the insured premises during and after the fire. A verdict was returned for the appellees.

The issues presented are fourfold: 1) whether the trial judge properly ruled that the appellant had waived the defense of arson due to its failure to notify the appellees of such defense at the time liability was denied; 2) whether Mrs. Molloy’s interest in the insurance policy, held in tenancy by the entireties, could be severed from that of her husband; 3) whether the trial judge properly denied appellant’s motion for a directed verdict on the issue of appellees’ alleged failure to preserve their property during or after the fire; and 4) whether the trial judge erred in making several evidentiary rulings unfavorable to the appellent. We affirm the judgment of the trial court and now state our reasons.

Upon notification of an insured’s claim, the insurer may either accept or deny liability. If the insurer denies liability, all defenses of which he has knowledge at the time of the denial must be asserted or else they are waived. 16A Appleman, Insurance Law and Practice § 9260 (1968); Couch on Insurance 2d § 71:43 (1968); 43 Am. Jur. 2d Insurance § 1146 (1969); 45 C.J.S. Insurance §§ 706-707 (1946). Knowledge sufficient to constitute waiver "must be of the essential facts necessary to enable a person of ordinary prudence and judgment to act understandingly, and it must be knowledge as distinguished from mere inference.” 45 C.J.S. Insurance § 696 (1946).

The application of this rule may vary from State to State according to its definition of waiver. Waiver is defined as:

"'... the intentional relinquishment of a known right, or such conduct as warrants an inference of the relinquishment of such right, and may result from an express agreement or be inferred from circumstances. And acts relied upon as constituting a waiver of the provisions of a contract must be inconsistent with an intention to insist upon enforcing such provisions.’ ” Rubinstein v. Jefferson National Life Insurance Co., 268 Md. 388, 392-93, 302 A.2d 49, 52 (1973), quoting Food Fair v. Blumberg, 234 Md. 521, 531, 200 A.2d 166, 172 (1964). (Citation omitted.)

Estoppel precludes a party from asserting a given right or defense, but it demands "ignorance of the party who invokes the estoppel ... and an innocent and deleterious change of position in reliance on such representations or conduct.” 45 C.J.S. Insurance § 673; Rubinstein v. Jefferson National Life Insurance Co., supra at 393. Significantly, waiver does not require detrimental reliance on the part of the party asserting the waiver.

Since the distinction between the above two principles is slight, some jurisdictions refer to waiver and estoppel synonymously, thereby requiring the injured party to demonstrate detrimental reliance in order for waiver to apply. Maryland, however, has maintained the distinction between the two. See Rubinstein v. Jefferson National Life Insurance Co., supra; Eastover Stores, Inc. v. Minnix, 219 Md. 658, 150 A.2d 884 (1959).

The issue of waiver of defenses in insurance claims has met with limited discussion in this State. The Court of Appeals has held that the insurer will waive the defense of failure to give timely notice of injury if he fails to specify the defense at the time liability is denied. McElroy v. John Hancock Life Insurance Co., 88 Md. 137, 149-50, 41 A. 112, 115 (1898); Fidelity and Casualty Co. v. Riley, 168 Md. 430, 438-39, 178 A. 250, 254 (1935). The requirement of proof of death can also be waived if not asserted in the denial of liability. Prudential Insurance Co. v. Devoe, 98 Md. 584, 56 A. 809 (1904). More recently, the Court, in Zurich Co. v. Monarch Co., 247 Md. 3, 230 A.2d 330 (1967), addressed the issue of whether an insurer waived the defense of nonpermissive use of an automobile after liability was denied solely on the basis of the noncooperation of the injured party. The Court, in Zurich, found that the defense had not been waived since the insurer did not have knowledge of the defense at the time it denied liability. Id. at 11.

We hold that the trial court properly ruled that the defense of arson was waived by the appellant. The record indicates that at the time the appellant denied liability it possessed sufficient information to constitute knowledge of the possible defense of arson, and, therefore, the failure to notify the appellees of the defense, in the letter of June 28, 1978, was a waiver of that defense. Furthermore, there is no necessity to prove that the appellees relied to their detriment on the appellant’s failure to inform them of the arson defense since detrimental reliance is not an element of waiver in this State. Consequently, we do not reach the issue as to whether the grant of the summary judgment permitting the severance of Mrs. Molloy’s interest under the policy from that of her husband was proper.

We also conclude that the trial court correctly denied appellant’s motion for a directed verdict on the issue of appellees’ alleged failure to preserve their property during and after the fire. Examining the evidence in the light most favorable to the appellees’ position, the record reveals that there was enough evidence to cause reasonable minds to differ, and, therefore, the matter was properly submitted to the jury. See Ralph Pritts & Sons, Inc. v. Butler, 43 Md. App. 192, 403 A.2d 830 (1979); Keene v. Arlan’s Department Store of Baltimore, Inc., 35 Md. App. 250, 370 A.2d 124 (1977). See also Beahm v. Shortall, 279 Md. 321, 368 A.2d 1005 (1977).

We decline to review those objections related to the issue of arson inasmuch as we have affirmed the trial court’s ruling on the waiver of the arson defense. With respect to those objections concerning the refusal to permit testimony of an argument between Mr. Molloy and a neighbor, as well as opinion testimony proffered to describe the speed of Mr. Molloy’s automobile when he left the scene of the fire, we affirm the trial court’s rulings. The evidence was not relevant and would have served to obfuscate the issue rather than shed light upon it.

Judgment affirmed.

Costs to be paid by appellant.