author: Moore, J.,

text:
    CHARLES ELLERBA alias Alphonso Davis v. STATE OF MARYLAND
    [No. 259,
    September Term, 1978.]

      Decided March 13, 1979.

      The cause was argued before Moore, Melvin and Liss, JJ.

      David W. Skeen, Assigned Public Defender, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Jonathan Shoup, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Charles Ellerba, alias Alphonso Davis, was convicted by a jury in the Criminal Court of Baltimore (Kaplan, J.) on December 8,1977 of two charges of arson. He was thereafter sentenced to two consecutive 20-year terms. On appeal, he argues six assignments of error by the trial court: (1) appellant did not freely and voluntarily waive his right to counsel on May 31, 1977 and, therefore, it was error to admit statements made by him at a custodial interrogation on that date; (2) appellant did not breach the June 9, 1977 agreement between himself and the State in which the State promised not to use appellant’s May 31, 1977 statements in return for appellant’s cooperation and, consequently, it was error to admit his May 31 statements; (3) the court should not have admitted evidence, from any source, of other arsons allegedly committed by appellant; (4) appellant’s motion for a separate trial on each of the two indictments should have been granted; (5) the evidence was insufficient to convict appellant of the arson of 12 South Calhoun Street; and (6) the evidence was insufficient to convict appellant of the arson of 2470 Shirley Avenue.

I

On May 24, 1977, appellant was arrested and charged with the arsons of 12 South Calhoun Street, 2470 Shirley Avenue, and 516 North Pulaski Street. The latter charge was subsequently nolprossed. Bail was set at $250,000. Assistant State’s Attorney Jonathan Shoup, Detective John Dillon, and Sergeant Paul Lioi first met with the appellant on May 25. After the Miranda rights were read to the appellant, he indicated he wanted a lawyer. Following appellant’s request and before appellant was returned to his cell, the men asked appellant several routine questions, not concerning the fires. No incriminating statements were elicited.

James Gitomer was retained tentatively as defense counsel on May 26 by appellant’s wife and mother. A possible conflict of interest, later determined to be nonexistent, necessitated the tentative nature of the appointment. On May 27 appellant and Gitomer met. Assistant State’s Attorney Shoup, who was handling the case, was aware of this meeting but did not record it nor notify others in the State’s Attorney’s office before he departed on May 27 for a two-week tour of duty in the Army National Guard.

Thereafter, on May 30, Detective Dillon was notified by Sheila Mack, appellant’s girlfriend, that he wished to talk with them. A writ of habeas corpus was issued and appellant was brought to the State’s Attorney’s office on May 31, where Detective Dillon, Sergeant Lioi, and Assistant State’s Attorneys Howard Gersh and Michael S. Glushakow were present. It was later testified that all-of these individuals were unaware that appellant was represented by counsel.

Before any questioning commenced, Gersh, as a precaution, thoroughly explored with appellant his reasons for wanting to talk. Appellant replied that he was tired of being used by his “employers” and he no longer wanted to take the blame alone for the fires. Gersh, after he was satisfied that appellant had voluntarily and intelligently reached his decision, repeated to Ellerba his Miranda rights, but appellant indicated, in writing, that he did not want a lawyer present.

Following the waiver of counsel, appellant proceeded to discuss his involvement in six fires. None of the fires appellant discussed were involved in the indictments. Appellant described, in elaborate detail, schemes to defraud insurance companies whereby he was paid by one William Goldberg and one Al Rachelson to set fires to various properties they owned in Baltimore City. According to Gersh, appellant, a home improvement specialist by trade, described himself as a “furnace man.” He drew for Gersh a detailed diagram of his method of setting fires. Appellant said he would lower the thermostat, turn off the electrical current, splice the wire running from the thermostat to the furnace, and then run more wires off the main wire. These wires were exposed. Appellant would then place a flammable liquid near the wires surrounded by some type of flammable substance. Depending on the outside temperature, appellant would set the thermostat at an appropriate degree so that it would trigger the furnace after he had left. When this occurred, the electrical current passed through the exposed wires which would ignite the flammable substance, causing the fire. Appellant admitted starting 6 or 7 fires using this method, including properties at North Pulaski Street, Boyd Street, Groveland Avenue, and 1825 and 1827 West Baltimore Street.

Although appellant’s statements made during this meeting were later reduced to written form by his interrogators, he did not sign them. During the questioning session, appellant agreed that he would testify to the same information before the grand jury the following day. However, before the questioning was concluded, defense attorney Gitomer, who had discovered appellant was being questioned without his knowledge, burst into the State’s Attorney’s office in an outrage. Curiously, according to the testimony of Gersh, appellant said that he did not know Gitomer nor did Gitomer represent him. Because of this confusion, Gersh suggested that Gitomer and appellant go into the next room to discuss the matter. Later, the two men emerged from their discussion with appellant apparently accepting Gitomer as his counsel and, at the latter’s request, an agreement was made to cancel appellant’s grand jury appearance for the next day.

The appellant and the State subsequently entered into a written agreement on June 9, 1977 whereby the appellant agreed to cooperate with the State and the grand jury in the arson investigations then being conducted by the office of the State’s Attorney. In return, the State promised appellant: there would be no further indictments against him; the May 31 statement would not be used against him; and there would be a recommendation for his release on $5,000 bail and notification to the sentencing judge of appellant’s cooperation. It was a condition of the agreement that appellant give “truthful testimony” and provide “reasonable cooperation” throughout the investigation. If appellant failed to honor his commitments, the agreement would become null and void and the State would then be free, among other things, to use the statement and to charge him “in any matters.”

Pursuant to this agreement, appellant testified before a special session of the grand jury, giving the same information he related to his interrogators on May 31. His testimony led to the indictments of William Goldberg and A1 Rachelson. Subsequent to these indictments, information was uncovered which placed the truthfulness of appellant’s testimony at issue and resulted in the dismissal of the Goldberg and Rachelson indictments. Between July and October, the State repeatedly attempted to locate appellant to question him further but efforts to locate him were fruitless. According to the State, appellant had thus breached the agreement, thereby releasing it from the promises made to appellant and freeing it to use his statements in his trial scheduled for October 13, 1977.

On the initial day of trial, the court first took testimony on appellant’s motion to suppress his May 31 statements. The witnesses were Detective Dillon, Mr. Gersh, Mr. Shoup, and the appellant. The court ruled that the appellant freely and voluntarily waived his right to counsel. Furthermore, it was held, appellant had breached the June 9 agreement, therefore permitting the State to use his May 31 statements. Appellant’s motion for a severance, which accompanied the motion to suppress, was also denied, the court stating that severance was “not legally required.”

At trial, the State first presented testimony concerning the incendiary nature of the fire at Shirley Avenue which occurred on January 22, 1977. When the blaze occurred, the house — owned by appellant and his wife — was being remodeled. According to Battalion Chief Fred R. Schwartz, Jr., who had ordered a “complete second alarm assignment” after he had arrived on the scene, the fire, apparently originating in the basement, moved through the dumbwaiter shaft to other levels of the dwelling, the damage being heaviest in the stairway area. A separate fire had started in the upstairs bedroom. In the basement, there were few burn marks on the furnace. A five-gallon can with the residue of what appeared to be flammable paste, resembling tile paste, was found there.

Qualified as an expert in the field of fire investigation, Captain Robert Hatoff of the Fire Investigation Bureau of the Baltimore City Fire Department, testified that “the fire was incendiary in origin.” Hatoff said that the debris and the unusual burn patterns — indicative of burning from flammable liquid — caused him to conclude that arson had been perpetrated. Hatoff also testified that soon after the fire apparatus had arrived, appellant appeared at the scene and identified himself as owner. In response to his questioning, Ellerba said he had been “in and out” of the Shirley Avenue premises during the day. Hatoff asked him to remain for further questioning. Appellant, however, disappeared. Following his testimony and that of several other witnesses, Captain Hatoff was permitted, over objection, to be present in the courtroom during the testimony of Assistant State’s Attorney Gersh. Captain Hatoff thereafter testified, using for illustration pictures taken at Shirley Avenue after the fire, that, in his opinion, the fire had been started by the “furnace method,” in the same way described by appellant in his May 31 statement.

As to the Calhoun Street fire, which occurred on November 27, 1975, Thanksgiving Day, Captain John C. Richter of the Fire Investigation Bureau was the State’s main witness. He testified that the fire started and was contained in the basement of the temporarily vacant three-story dwelling. The colors of the burn marks were darkest on the floor, which indicated to Richter that the fire started there before it proceeded up the wall. The investigation was conducted several days after the fire and all of the debris had been moved outside. The investigators, therefore, were unable to determine whether a flammable liquid had been used. Investigators also were prevented from obtaining fingerprints because the wood was either wet or charred. No pictures were taken.

Through the testimony of the claims manager of the Hartford Mutual Insurance Company, the State introduced a notarized proof of loss statement executed by appellant and a draft for $1,247.11 covering the property loss to South Calhoun Street. The draft was payable to appellant and two other payees, Central Public Adjusters, the loss adjusters, and Grant Cylus, also known as William Goldberg. The witness did not know who ultimately received the draft proceeds.

Olivia Anderson Jones, the appellant’s former girlfriend, who was living with him on the day of the South Calhoun Street fire, testified that on the morning of the fire, appellant left the house early, around 6:00 a.m., and returned between 8:30-9:00 a.m. Upon his return, she testified that he said he had “dropped a match”; later he also said “he put oil in the furnace [and] he let the oil out.” The fire at the South Calhoun Street address occurred at 8:56 a.m. Almost all of the furniture that Jones and appellant owned was in the house .when the fire occurred.

At the time of the South Calhoun Street fire, appellant was working for Goldberg doing home improvement work. Jones testified that appellant had told her he was in another business with Goldberg — the business of setting fires for a fee and collecting the insurance proceeds. According to Jones, appellant said he had set fires at Fayette Street and Pulaski or Payson Street by “letting the oil out of the furnace.” The witness, in concluding her testimony, said she received $4,000 from an insurance company for her property, consisting mostly of furniture which was destroyed in the subsequent Shirley Street fire.

Zelda Ellerba, appellant’s wife, was also a State’s witness. Mrs. Ellerba, after reading a list of fifteen properties she and appellant had owned jointly, said she was aware that there had been fires at four of these properties — South Calhoun Street, Groveland Avenue, 22nd Street, and Fayette Street. Moreover, she knew appellant had received insurance proceeds for two of these fires. She was ignorant, however, of the South Calhoun Street fire until, after receiving a summons to clear the debris, she inspected the property. The witness had no knowledge of the insurance proceeds or the proof of loss statement for 12 South Calhoun Street, On cross-examination, Mrs. Ellerba testified that the mortgage payments for the properties purchased from Goldberg were paid directly to Goldberg and out of these payments, he paid the insurance and ground rent. Goldberg was also an insurance agent.

The State’s principal trial witnesses to appellant’s detailed statements of May 31 were Assistant State’s Attorney Gersh and Sergeant Lioi of the Police Arson Squad. Gersh discussed appellant’s recitation of his involvement in various fires — 1825 West Baltimore Street, 516 North Pulaski, and 1827 West Baltimore Street — and the furnace method he used to start them. According to appellant, he was paid fees of $400 or $100 per fire by either Rachelson or Goldberg. The witness, after examining the land records, found a complex chain of ownership transfers between the appellant and Goldberg. Gersh testified that although both Ellerba (Davis) and Goldberg (Cylus) had changed their names, they used their old and new names on legal documents. The parties were frequently transferring the properties, struck by fires, back and forth. In some instances, although the property was in the name of one party, the insurance proceeds would be paid to the other.

Sergeant Lioi testified that he was present when appellant made his May 31 statement. Although appellant said he could not remember all of the fires in which he played an active role, he did discuss 6 or 7 fires with Lioi. Lioi took almost verbatim notes while appellant confessed to the arsons — all started by the furnace method — of 1825 and 1827 West Baltimore Street, 516 North Pulaski, 2518 Boyd Street, and 4004 Groveland Avenue. According to appellant, and later confirmed by the records, these properties were owned by either Goldberg or Rachelson.

The appellant’s case consisted of four lay witnesses, including himself. The almost exclusive purpose of these witnesses was to discredit Olivia Jones through testimony that she possessed a jealous and revengeful nature. Martha Means, another girlfriend of the appellant, was also an alibi witness, testifying that she was with him at her mother’s residence in New York on the day of the South Calhoun Street fire. However, she could not remember the New York address because’ her mother was very transient. On one occasion, Means said, Jones had threatened to shoot her because she was jealous of her relationship with appellant. Means who testified that she “was going with appellant,” was unable, however, on cross-examination, to remember where he lived. Robert Reed, a friend of appellant, and Mary Tate, the appellant’s mother, also testified to incidents allegedly indicative of Jones’ jealousy and motivation to fabricate.

When appellant took the stand, he denied any involvement in the Shirley Avenue or South Calhoun Street fires. He also testified that on November 27, the date of the South Calhoun Street fire, he did not own that property because it had been sold at a tax sale on the same day. On cross-examination, however, it was shown that on the sworn insurance proof of loss statement appellant claimed ownership of the property. With respect to his grand jury appearance, he testified that all his testimony was false. The May 31 statement, he said, was also false. He stated that he told his interrogators what he thought they wanted to hear in order to have his bail reduced from $250,000 so he could be released from jail. (The bail was, in fact, reduced to $5,000 and he was released.)

After appellant presented his case, defense counsel renewed his motion for judgment of acquittal. The court denied the motion. The jury returned guilty verdicts under both indictments.

II

We shall consider first appellant’s contention that the trial court erred in holding that his statement made on May 31, 1977 was freely and voluntarily given, after he had intelligently waived his right to counsel. This issue is based primarily upon sixth amendment principles but it appears from appellant’s brief that questions involving appellant’s fifth amendment privilege against self-incrimination are tangentially involved.

With respect to the question of appellant’s waiver of his right to counsel prior to making the statements, the record herein discloses that: (a) when appellant was first interviewed on May 26, 1977, he requested counsel and at that time further interrogation ceased; (b) when counsel was engaged for appellant by his mother and sister the following day, there was some question of a possible conflict of interest that would preclude the retainer; (c) when counsel was engaged, this representation became known only to the Assistant State’s Attorney Shoup who thereafter left on a tour of military duty for two weeks; (d) Mr. Shoup’s knowledge was not communicated to Mr. Gersh who handled the case in his absence and (e) no formal appearance of counsel was made of record. Also critically important is the fact that the appellant and not the State sought the May 31 interview with the State’s Attorney’s office, and at that time — after again being administered his Miranda rights — he waived counsel in writing and made no disclosure to Mr. Gersh or the police officers that Mr. Gitomer had been retained. Indeed, when Mr. Gitomer appeared at the offices of the State’s Attorney and loudly protested the interrogation of his client, appellant initially questioned whether Mr. Gitomer was his counsel.

Maryland has not adopted the minority view, the so-called perse rule, which mandates exclusion of all statements given by an accused after defense counsel has been engaged unless counsel has been advised of the State’s intention to take a statement and has been given an opportunity to be present. See generally Watson v. State, 282 Md. 73, 78, 382 A. 2d 574 (1978); State v. Blizzard, 278 Md. 556, 567-74, 366 A. 2d 1026 (1976). Thus there is no basis for appellant’s apparent contention that his May 31 statement was admitted improperly because defense counsel was not present. Indeed, we consider it manifest that his contention would be unsupported even under the minority view because his retainer of counsel was unknown to his interrogators and he himself withheld it.

The facts here are totally unlike those involved in Brewer v. Williams, 430 U.S. 387 (1977) upon which appellant relies. There, the police officers knew that the appellant was represented by counsel and the latter had specifically requested that his client not be questioned. Furthermore, in Brewer the defendant himself advised the police that he did not want to respond without the presence of counsel. The officers, however, ignoring the defendant’s request and without administering the Miranda warnings, proceeded by trickery to elicit incriminating information from the defendant, an individual peculiarly susceptible to psychological ploys.

In the present appeal, appellant’s statements were not extracted by the State nor was there any surreptitious or questionable inducement. Rather, the facts in the instant case are similar to those in State v. Blizzard, 278 Md. 556 (1976), where the request to make a statement originated with the accused and to those in Watson v. State, 282 Md. 73 (1978), where the defendant “took matters into his own hands” and elected to speak with the prosecutors in the absence of his counsel and against the latter’s advice.

As to the issue of voluntariness — independent of the question of presence or absence of counsel — we find here no overreaching by the State which would support appellant’s charge, made in brief, that the prosecution was guilty of a “fast and loose manipulation of the bail system.” The interview of May 31 was held because appellant, not the prosecutors, requested it. True, the State was interested in obtaining his cooperation in a far-reaching investigation leading to the apprehension of those who had hired appellant to commit the various arsons involved. But appellant, hardly an uninterested party, was motivated by his desire to have his bail reduced from $250,000 to an affordable sum. We think the State has asserted correctly that there was a reasonable inference that appellant “set the price for his bartered testimony.” Of course, the trial court was free to accept or reject appellant’s version of the facts and obviously rejected appellant’s testimony that his bail would be reduced to $5,000, if he waived his right to counsel.

Upon our independent review of the record in this case, we find ample support for the trial court’s conclusion that appellant knew of his right to counsel, that he freely and intelligently waived this right prior to giving a statement, and that his statement was voluntary.

Ill

The trial court also ruled that the use of appellant’s May 31 statements was not precluded by his June 9 agreement with the State. Here, appellant’s assignment of error involves the following portions of the agreement:

“(7) It is also understood and agreed that this agreement is based upon truthful testimony of Mr. Ellerba and reasonable cooperation throughout the investigation.
(8) In the event he testifies untruthfully or fails to give his cooperation, this agreement shall be considered null and void and the State shall have the option of charging him in any matters and using any and all statements, evidence, and/or testimony against him.”

One of the commitments contained in paragraph 7 was that appellant was to testify truthfully. Yet, by his own admission at trial, he lied to the prosecutors and to the grand jury. Appellant sought to justify these false statements by stating that he was merely telling the story he felt the State wanted to hear.

The second commitment was that appellant cooperate in the ongoing investigation. The record clearly discloses, however, that appellant made himself incommunicado from early June 1977 until the middle of October when his trial was scheduled. Telephone messages left at his last address and with relatives remained unanswered, police searches were unavailing, and when appellant finally appeared for trial on October 13, he was reported as saying unequivocally:

“The only thing I was supposed to do was talk to you so I could get out on bail and I want to go to trial today. I’m not going to do anything further; I’m not going to do anything more.”

This statement alone is sufficient to support the ruling of the lower court that the agreement to cooperate, contained in paragraph 7, had been breached. It is patent that appellant treated his obligations to cooperate as discharged on the date he testified before the grand jury. This was entirely contrary to the understanding of the agreement to which he testified before the grand jury, namely, that he would return to the State’s Attorney’s office “at [their] reasonable request and continue to discuss [those] matters both in [their] office and before the Grand Jury, about further fires or about anything that anyone want[ed] clarified....”

IV

Appellant’s third assignment of error is that the court below should not have admitted evidence, from any source, of other arsons allegedly committed by him. The State’s position is that appellant waived appellate review of this question when he failed to object to its introduction. See Rose v. State, 240 Md. 65, 69-70, 212 A. 2d 742 (1965). It is fundamental that, irrespective of the disposition of an original objection, a subsequent failure to object to the same evidence introduced through the same or different witnesses waives the error on appeal. S & S Building Corp. v. Fidelity Storage Corp., 270 Md. 184, 190-92, 310 A. 2d 778 (1973); Sutton v. State, 25 Md. App. 309, 316, 334 A. 2d 126 (1975).

Our examination of the record discloses that appellant, during the course of direct examination of appellant’s wife, Zelda Ellerba, made a timely objection when she was asked if she knew of “any other fires at any of the other properties” she owned other than the properties at Shirley Avenue and Sourth Calhoun Street. At that juncture, there was a colloquy at the bench and appellant’s counsel argued that evidence of other crimes neither went to motive nor showed a common scheme or plan. He further asserted that “all it goes to show is that he has a propensity to set fires and I suggest that is an improper use of any other mention of any other fires.” To this argument, the State responded:

“Your Honor, to lay the foundation for common scheme and design, which will make this admissible, I must show, first, he owned the property with his wife and, two, there were fires in the properties at different times when he did own them. Then if I bring out and show this common scheme and design, that these fires were set in the same way and relate them to the two properties in the indictments, I’m showing a continuing scheme, common scheme and design, m.o., modus operandi of the defendant which would be perfectly legal.”

Thereafter, the objection was overruled, and Mrs. Ellerba proceeded to testify about the fires at Groveland Avenue, 22nd Street, and Fayette Street. All of these properties were covered by fire insurance.

However, when Olivia Anderson Jones followed Mrs. Ellerba to the witness stand, she not only testified to an admission made to her by appellant concerning the South Calhoun fire, but she also testified, without objection, that he informed her of being in business with Mr. Goldberg. The business, in the witness’ words, was “with some kind of insurance, like these fire settings to collect the insurance.” Later, Jones confirmed her earlier testimony that appellant had "set other fires” and proceeded to say that he told her that, in setting them, he had “let the oil out of the furnace.”

Again in the testimony of Assistant State’s Attorney Gersh, on redirect examination, it was brought out, without objection, that the appellant, Mr. Goldberg, and other individuals had a chain of ownership or title in real estate in Baltimore City and that “at various times they would have fires at these properties, and at. some time the property would be in the name of Goldberg, yet the insurance was paid to Ellerba.” Mr. Gersh also testified, without objection, that “[w]e couldn’t determine any particular pattern of why one particular property would be signed one way and one another, but this was a common scheme threading through all of these properties.”

Finally, Segeant Lioi of the Baltimore City Arson Squad gave extensive testimony, without objection, concerning appellant’s statements made to him during the May 31 interrogation concerning other arsons in different areas of Baltimore City. Sergeant Lioi then explained, in detail, the method appellant described he used to start the fires, the amounts of money he had received in payment, and the location and dates of these other arsons. According to Lioi, six or seven fires were discussed specifically at that time although, he testified that there were other fires which appellant mentioned but could not remember clearly. The only objection interposed to the latter testimony was defense counsel’s statement, “[ojbject to anything he couldn’t remember.”

In light of the absence of appropriate objections to the testimony by other witnesses of numerous other fires, this third assignment of error is not properly before us. Maryland Rule 1085. As Judge Prescott stated for the Court in Forrester v. State, 224 Md. 337, 344, 167 A. 2d 878 (1961), “[I]f we assume without deciding that the evidence was inadmissible, any objection to its admission was waived by its subsequent admission without objection.”

V

Appellant next assails the trial court’s rulings on appellant’s motions for severance and a separate trial on each indictment. The motion was made initially on the first day of trial, prior to the court’s ruling on appellant’s motion to suppress his May 31 statements. In making the motion, appellant’s trial counsel characterized it as “very, very short” and cited McKnight v. State, 280 Md. 604, 375 A. 2d 551 (1977). He described McKnight as a “case concerning four successive armed robberies tried as one in one case.” He further contended that the State, in the instant case, was committing the same error by trying “three unrelated fires ... as one . . . and I suggest it is highly prejudicial to the defendant. . ..” Counsel then submitted on the “arguments” contained in the McKnight case. To this, the State made a proffer that "the means by which [the fires] were set were basically the same. ” (Emphasis added.) When disposing of the motion for severance, following its disposition of the motion to suppress, the court stated without elaboration, “that severance is not legally required and, therefore, [the court] denies that motion.”

Appellant’s'motion to sever was renewed at the conclusion of Captain John Richter’s testimony. Richter, a member of the Fire Investigation Bureau of the Baltimore City Fire Department, was the State’s expert witness concerning the South Calhoun Street fire. At a bench conference, defense counsel addressed the court with respect to the renewal of the motion as follows:

“Yoxxr Honor, at this time I’d like to renew my motion for severance of the two indictments. We’ve had two fire investigators testify and I see no similarity between the fires, and I suggest that trying the two indictments together places this defendant — It may well be the State may be able to prove that he was the owner of these dwellings — I am not so admitting that, it is possible — but other than that I see no other similarity that would cause these cases to be tried together other than the fact this defendant is charged, and at this time I renew my motion for severance.”

The State’s rejoinder and the court’s ruling were as follows:

MR. SHOUP: “Your Honor, the State hasn’t completed its case yet in order to tie them together, and we intend to tie these fires together as to cause and as to ownership. We’re about halfway through.
THE COURT: I was just going to say that at this point I can’t tell what they’re going to do and what they’re not going to do. Obviously, if they can’t tie them together your point may be very well taken, but at this juncture, until they have completed their case to see whether they can tie them together, I can’t rule on your motion other than to maintain my prior ruling.
MR. GITOMER: Yes, Your Honor.” (Emphasis added.)

The motion was again renewed and denied at the close of the State’s case, following denial by the court of appellant’s motion for judgments of acquittal.

Severance is a matter which rests largely within the discretion of the trial court pursuant to the provisions of Maryland Rule 745(c).

As Judge Levine pointed out in McKnight v. State, 280 Md. 604 (1977), joinder of offenses may serve the ends of judicial economy but severance may be mandated when the prejudicial effect of the evidence of another crime outweighs its probative value. The ultimate test by which a motion for severance must be evaluated was stated in McKnight in the following terms:

“We think that a defendant charged with similar but unrelated offenses is entitled to a severance where he establishes that the evidence as to each individual offense would not be mutually admissible at separate trials.”

Id. at 612.

In the instant appeal, it is apparent that the trial court, in the early stages of the trial, was at some disadvantage with respect to making disposition of the motion for severance, in these respects: (a) appellant, as the moving party, relied broadly upon the principles of McKnight without specific factual elaboration; and (b) the responses of the State to the motion when made and renewed certainly tended to indicate that the requirements of the McKnight rule would be satisfied. It was quite evident, however, when the motion was renewed at the close of the State’s case, that the prosecution had failed to establish that “the means by which [the fires] were set were basically the same.” It was then manifest that the ingenious “furnace method,” utilizing the thermostat and exposed wires leading to flammable materials, was the cause of the Shirley Street fire. On the other hand, it was abundantly clear from the testimony of Captain Richter and Mrs. Anderson Jones that the so-called furnace method was not at all involved at the South Calhoun Street fire. Mrs. Anderson Jones, it will be recalled, testified that appellant had told her he had “dropped a match” after leaking oil from the furnace. It follows, therefore, that under the McKnight rule the evidence as to each individual offense would not be “mutually admissible” at separate trials.

We think it quite plain that had the evidence supported the early claims of the prosecution that the “means” were basically the same, that is, that the same incendiary devices were utilized at each property, joinder would have been proper under the so-called “signature” or “handiwork” exceptions recognized by the Court of Appeals in Ross v. State, 276 Md. 664, 670, 350 A. 2d 680 (1976) and discussed in both the majority and dissenting opinions in Lebedun v. State, 283 Md. 257, 390 A. 2d 64 (1978). See also Nasim v. State, 34 Md. App. 65, 366 A. 2d 70 (1976). But this was not the situation. Neither is the “common scheme or plan” exception available. There was no testimony concerning any insurance claim with respect to the Shirley Street property loss; whereas there was rather extensive testimony by an insurance claims adjuster, by appellant’s wife, and by Mrs. Anderson Jones concerning the insurance claim which was made and paid for the Calhoun Street fire.

It necessarily follows that there was reversible error when the court denied appellant’s motion for a severance at the close of the State’s case.

VI

Appellant’s final contentions are that the evidence was insufficient to support his arson convictions of 12 South Calhoun Street and of 2470 Shirley Avenue. We deem it necessary, in the light of the Double Jeopardy Clause of the Fifth Amendment, to address these contentions, notwithstanding our finding of reversible error on the severance issue. Burks v. United States, 98 S. Ct. 2141 (1978); see State v. Boone, 284 Md. 1,12,393 A. 2d 1361 (1978). Compare United States v. Mandel, No. 77-2487 (4th Cir. filed Jan. 11, 1979).

The test as to the sufficiency of evidence in a criminal case is succinctly stated in Metz v. State, 9 Md. App. 15, 23, 262 A. 2d 331 (1970), as follows:

' “To be sufficient in law to justify a conviction, the admissible evidence adduced must show directly, or circumstantially, or support a rational inference of, the facts to be proved from which the trier of fact could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged.”

We also have had occasion to explicate the burden imposed upon the State in an arson case and the elements of proof that are involved. Thus, in Smith v. State, 20 Md. App. 577, 596-97, 318 A. 2d 568 (1974), cert. denied, 420 U. S. 909 (1975), we stated:

“In a prosecution for arson as in other criminal cases, the State must prove the corpus delicti, viz., burning with a criminal design. Not only must the fact of the fire be shown; it must also be established that it was willfully and maliciously set. The State must prove a criminal design beyond a reasonable doubt. Proof of the defendant’s criminal agency, although essential for conviction, is not part of the corpus delicti. Davis v. State, 202 Md. 463, 97 A. 2d 303 (1953); Bollinger v. State, 208 Md. 298, 117 A. 2d 913 (1955); McDowell v. State, 231 Md. 205, 189 A. 2d 611 (1963); Hughes v. State, 6 Md. App. 389, 251 A. 2d 373 (1969). Other relevant rules of law in arson cases that may be encapsulated from the cases cited and their underlying authorities are these:
1. The character of the evidence to prove the corpus delicti, and its sufficiency for that purpose, depend largely upon the circumstances of each particular case; and the law recognizes that since a burning is almost invariably clandestine, the prosecution must usually depend upon circumstantial evidence.
2. An extrajudicial confession of guilt of arson uncorroborated by other evidence of the corpus delicti is not sufficient to warrant a conviction.
3. With respect to the nature and quantum of the evidence needed to corroborate the extrajudicial confession:
(a) Such evidence need not be full and positive, and may be circumstantial in nature when direct evidence is not available.
(b) It need not establish by itself the truth of the corpus delicti beyond a reasonable doubt or by a preponderance of proof.
(c) Any facts and circumstances that are substantial in nature and fortify the truth of the confession or statement are sufficient.”

Applying these principles to the facts in the instant appeal, we find that the two fires are indeed a study in contrast. While we cannot find that the evidence was insufficient to sustain the conviction of the arson of Shirley Avenue, we conclude that the evidence was clearly insufficient to sustain the conviction of the arson of South Calhoun Street. The motion for judgment of acquittal under that indictment should, therefore, have been granted.

With reference to the Shirley Avenue fire, there was unequivocal expert testimony by Captain Hatoff of the Fire Investigation Bureau, Baltimore City Fire Department, that the fire was “incendiary in origin.” Photographs were received in evidence illustrating the damage to the basement and upper floors caused by the fire. These photographs also included a picture of a five-gallon bucket that appeared to have contained a flammable paste. The expert witness, after hearing detailed testimony of appellant’s unique method of setting other fires, heretofore described, unequivocally stated that the Shirley Avenue fire was caused by the same method. Furthermore, two fire officials placed appellant at the scene of the fire shortly after they arrived. As the Court of Appeals stated in Bollinger v. State, “[i]n arson cases, evidence that the accused was seen in the vicinity of the fire, whether before or after it occurred, is always relevant.” 208 Md. 298, 307, 117 A. 2d 913 (1955).

In comparison, it is plain from the evidence of record pertaining to the South Calhoun Street fire that while the State proved the fact of that fire, it failed to produce legally sufficient evidence that the fire was willfully or maliciously set. The State’s only witness testifying to the corpus delicti of the South Calhoun Street fire was Captain Richter, also of the Fire Investigation Bureau of the Baltimore City Fire Department. On direct examination, Captain Richter, a fire department veteran with 35V2 years’ experience, including 13 years in the Fire Investigation Bureau, was unable to recall whether there was an oil burner in the basement. He indicated that it had been two years since he went to the scene of the fire, and in the interim he had investigated seven or eight hundred other fires. Captain Richter testified that the fire originated in the rear of the basement of the three-story dwelling but he was unable to determine anything further because at the time of his inspection all the debris had been moved outside the premises. However, he did state that he “saw the pattern on the wall where the fire had gone up the wall; also, where the fire had burned on the floor it was dark and an altogether different color than the rest of the flooring.... [T]he underside of the flooring and the [first floor] floor joists were burnt directly above [the] dark area in the basement where the fire had originated.” The fire, contained in the basement, had caused no damage to the floors other than smoke damage. Asked why he did not take any photographs, Captain Richter responded: Interrogated further on direct examination as to the implications of his failure to smell any flammable materials or see any evidence of flammable materials, the Captain stated: “Well, it would indicate to me that there was no flammable used but it still would not indicate to me that somebody could have set the fire.” While it is possible that the word “not” in the last portion of the above quotation was inadvertently omitted by the reporter between the words “could” and “have,” this is far from a positive affirmation that the fire was incendiary in origin — the precise and unequivocal opinion given by the expert witness who testified with respect to the Shirley Street fire. In addition, as previously stated, there is no evidence here that the unique method or so-called “signature” employed in the Shirley Street arson and the other fires set by appellant, was employed at South Calhoun Street. Furthermore, the statement attributed to appellant by Mrs. Anderson Jones, that appellant had “dropped a match,” viewed as an extrajudicial admission of guilt of arson, is insufficient to warrant a conviction unless corroborated by other evidence of the corpus delicti. See Smith v. State, 20 Md. App. at 597. Here, the record does not contain sufficient corroborative evidence that the fire was willfully and maliciously set. We think, therefore, the trial court should have granted appellant’s motion for a judgment of acquittal as to the arson of 12 South Calhoun Street. Barry v. State, 166 Tex. Crim. 372, 314 S.W.2d 90 (1958). The judgment of conviction under that indictment must be reversed. State v. Boone, supra.

“Because at this particular fire I didn’t take any photographs because the only thing was left in the basement was the walls and the ceiling that was above, and nothing — I had no information as to any flamables [sic], I could not say whether a flamable [sic] or not was used, because the debris was moved to the outside. So for that particular reason I didn’t take any — have any pictures or photographs taken of this particular area.” (Emphasis added.)

Judgment under Indictment No. 17714453 (2740 Shirley Avenue) reversed and cause remanded for a new trial.

Judgment under Indictment No. 17714451 (12 South Calhoun Street) reversed.

Costs to be paid by the Mayor and City Council of Baltimore.

      . Dillon testified that appellant, in reaching this decision, appeared normal, unaffected by drugs or alcohol, and answered the questions fairly and intelligently. However, at the suppression hearing, appellant, in somewhat contradictory fashion, claimed he repeatedly requested an attorney, yet admitted signing the waiver form in addition to initialing the portion stating he did not want an attorney present.

      . The witness testified that she and appellant owned properties at 531 South Smallwood, 12 South Calhoun, 1916 Park Avenue, 117 Carey Street, 335 Strieker Street, 254,3 Ashton Street, 1919 Edmondson Avenue, 1808 Edmondson, 531 Pulaski Street, 516 Pulaski Street, 4004 Groveland Avenue, 419 Roundview, 2303 Fayette Street, 409 22nd Street, and 1113 North Bond Street.

      . As previously noted, the third indictment was not prossed.

      . Rule 745(c) provides:
      "If it appears that any party will be prejudiced by the joinder for trial of counts, charging documents or defendants, the court may, upon its own motion or the motion of any party, order separate trials of counts, charging documents or defendants, or grant any other relief justice requires.”

      . In the Mandel case, the United States Court of Appeals for the Fourth Circuit declined to pass upon the sufficiency of the evidence when, on appeal, “important evidence has been ruled to be inadmissible.” It was held inappropriate to adjudge the sufficiency of “the balance of the evidence.” That, of course, is not the situation presented here.


source: Caselaw Access Project

author: Moylan, J.,

license: Public Domain

text:
    TIMOTHY SWEETWINE v. STATE OF MARYLAND
    [No. 753,
    September Term, 1978.]

      Decided March 13, 1979.

    The cause was argued before Moylan, Couch and MacDaniel, JJ.

      George E. Burns, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Stephen B. Sachs, Attorney General, with whom were Diane G. Goldsmith, Assistant Attorney General, William A. Swisher, State's Attorney for Baltimore City, and B. Gary Bass, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

May a defendant strike a bargain with the State, repudiate that bargain so far as his obligations under it are concerned and yet retain all of the advantages he ostensibly bargained for? The answer is an immediate and absolute, “No.” Bargaining in bad faith will not be countenanced, let alone rewarded, on either side of the trial table. Appropriate are the words of Cardozo, “Justice, though due to the accused, is due to the accuser also____We are to keep the balance true.” Snyder v. Massachusetts, 291 U. S. 97, 54 S. Ct. 330, 78 L. Ed. 674.

The Appellant, Timothy Sweetwine, was indicted by a Baltimore City grand jury for armed robbery (count 1) and simple robbery (count 3), as well as other related charges not here pertinent. Initially, he pleaded guilty to simple robbery and was sentenced to six years imprisonment. In the apparent expectation that he had everything to gain and nothing to lose, he repudiated that plea, claiming on his first appeal to this Court that the plea was involuntary. We reversed, not reaching the merits of voluntariness but simply holding that the record did not adequately reflect that the “plea was voluntarily and intelligently made.” Sweetwine v. State, (Unreported, Court of Special Appeals, No. 365, September Term, 1977, filed September 14, 1977).

Over strenuous objection, the Appellant was brought to retrial upon the entire indictment and not simply upon the third count charging simple robbery. The State retendered the original plea bargain but the Appellant this time declined it. A Baltimore City jury convicted him of armed robbery and Judge Robert L. Karwacki sentenced him to twenty years imprisonment. The Appellant now attacks, on double jeopardy grounds, his being forced to stand trial for armed robbery and attacks, on due process grounds, the longer sentence.

The double jeopardy claim is without merit. Putting aside for the moment the question of the conditional nature of arrangements in the tendering of a guilty plea, there was no initial jeopardy as to the armed robbery count in any event. Only the third count was before the court as it began to hear the factual predicate for the plea to that count. No evidence was ever offered with respect to the armed robbery count. Because of the negotiation, it never made it to the trial stage and jeopardy, therefore, never attached. Cf. Crist v. Bretz, 437 U. S. 28, 98 S. Ct. 2156, 57 L.Ed.2d 24 (1978). Moreover, the State neither nolle prossed nor in any other way dismissed the armed robbery count. That count remained open. So long as the verdict of guilt as to simple robbery remained intact, of course, the armed robbery count was “dead in the water.” This is so because of that aspect of double jeopardy law which prohibits multiple punishment for the “same offense”, as “same offense” is defined in Blockburger v. United States, 284 U. S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932); Newton v. State, 280 Md. 260, 265-268. The greater charge hovered in a state of suspended animation.

Nor may the Appellant find any succor in Green v. United States, 355 U. S. 184, 78 S. Ct. 221, 2 L.Ed.2d 199 (1957) as support for his proposition that the inaction on the greater charge, while the lesser charge was proceeding forward, operated as an “implicit acquittal” on the greater charge. In the Green case, a jury had submitted to it, charges of both first-degree murder and second-degree murder. It returned a verdict of guilty of murder in the second degree but was silent as to the first-degree charge. When the second-degree verdict was reversed upon appeal, it was held that upon retrial, the unresolved first-degree charge could not be relitigated because of a double jeopardy bar. The Supreme Court referred to the “implicit acquittal” on the first-degree charge. The best doctrinal explanation for this legal consequence — the factfinder’s silence as to the greater offense operating as an “implicit acquittal” as to that offense — is found in that aspect of double jeopardy law barring retrial after a mistrial absent manifest necessity. To discharge a jury with an issue yet unresolved is, in effect, to declare a mistrial as to that issue. This derogates the valued right a defendant enjoys in having the tribunal, once empanelled in his case, remain together until the matter is resolved. Where the jury, on the other hand, indicates that it is hung as to the greater count, a retrial on that count is not barred should the conviction for the lesser offense subsequently be reversed upon appeal. Selvester v. United States, 170 U. S. 262, 18 S. Ct. 580, 42 L. Ed. 1029 (1898); Wallace v. Havener, 552 F. 2d 721 (1977). This is classic “manifest necessity” under United States v. Perez, 22 U. S. (9 Wheat.) 579, 58C, 6 L. Ed. 165 (1824). When the jury is discharged inadvertently, however, without even an inquiry as to whether it is hung, there has been no “manifest necessity” and a retrial would consequently be barred. It is in this sense that the factfinder’s silence on a greater charge (when there is a conviction on a lesser charge) is tantamount to an acquittal. In the instant case, there was nothing remotely resembling a submission of the armed robbery charge to a factfinder upon the merits and Green is, therefore, totally inapposite.

Going straight to the jugular of the present issue, however, we may ignore the subtle metaphysics of whether jeopardy ever attached as to the armed robbery count and whether such jeopardy (if it existed) ever terminated in the Appellant’s favor (implicitly or otherwise). In the context of a negotiated plea of guilty, the whole package of reciprocal arrangements and obligations is conditional. The condition is the continuing good health of the guilty plea. If it is voided, both the defendant and the state return to “square one.” They both begin again with a clean slate. The invalidation of the “contract” invalidates all obligations incurred under that contract by either contracting party.

With only the Sixth Circuit in lonely isolation, see Mullreed v. Kropp, 425 F. 2d 1095 (1970); Rivers v. Lucas, 477 F. 2d 199 (1973), the United States Courts of Appeals are in solid agreement as to this conditional nature of the entire guilty plea package of arrangements. Most emphatic is United States v. Anderson, 514 F. 2d 583 (7th Cir. 1975). In Anderson in the factual context of a bank robbery, the defendant pleaded guilty to a lesser included offense. Going further than in the case now before us, the Government dismissed the greater inclusive charge. The defendant then successfully vacated his plea of guilty. Upon retrial, he was convicted of the greater charge which had earlier been conditionally dismissed by the Government. In affirming that conviction, the Court of Appeals for the Seventh Circuit held, at 587:

“The Government here did not unequivocally relinquish its right to prosecute Anderson for violating ... [the greater offense]. Instead, it conditionally relinquished this right provided Anderson was convicted of and remained convicted of the ... [lesser] offense. This is in direct contrast to Green in which the implicit acquittal on the greater charge was in no sense contingent on the continued viability of the conviction for the lesser offense. When the ... [lesser] conviction was vacated the condition precedent to the Government’s agreement not to prosecute no longer existed. The Government was then free to prosecute Anderson for the ... [greater] charge without placing him twice in jeopardy. To hold otherwise is to find that the Double Jeopardy Clause gives the defendant more than the “benefit of his bargain” and ensures that he will not even be placed in jeopardy once under certain circumstances.”

The Court of Appeals for the Eighth Circuit dealt with a similar situation in United States v. Williams, 534 F. 2d 119 (1976). The defendant there entered a plea of guilty to a lesser charge. The greater charge was formally dismissed upon the motion of the Government. The defendant later successfully attacked his guilty plea and the case was remanded. He was tried by a jury and convicted for the greater offense. As in the case before us, he sought to rely upon Green v. United States, supra, for the proposition that he could not be retried for the greater inclusive offense because of the bar against double jeopardy. In dismissing this contention, the Eighth Circuit held, at 121:

“... [A] defendant’s jeopardy on the greater charge ends when the first jury is given a “full opportunity” to return a verdict on that charge and instead returns a verdict on the lesser charge only. Neither premise is applicable when the original conviction on the lesser charge follows a guilty plea rather than a trial on both charges.
“In contrast, Williams was not, in the proceedings in which his guilty plea was accepted, in direct peril of being convicted and punished for violating § 2113(d) and (e). He was not forced to run the gauntlet on those charges. No trier of fact refused to convict him on those charges and none was given the choice between finding him guilty on either those charges or the ... [lesser] charge. The district judge had the sole options of accepting or rejecting the plea on the ... [lesser] charge. By accepting it, he made no determination, explicit or implicit, on the merits of the charges not embraced in the plea. There was no implicit acquittal.”

An analogous situation came before the Ninth Circuit in United States v. Wells, 430 F. 2d 225 (1975). The defendant there was charged on three counts of violating the drug laws. He entered a plea of guilty as to the second count as a result of which the United States Attorney dismissed the first and third counts. In holding that he had successfully attacked his guilty plea, the Ninth Circuit pointed out the adverse consequences that could accrue upon retrial, observing at 230:

“We have grave doubts as to Wells’ wisdom in pressing his motion for leave to withdraw his plea. If he is ultimately successful, we know of nothing to prevent the government from reviving the two counts that were dismissed by the trial judge.... Wells could thus find himself once more confronted with a possible conviction under Count I, and very severe penalties under that count that he escaped by entering the plea.”

The Tenth Circuit addressed a similar issue in Ward v. Page, 424 F. 2d 491 (1970). In a close analogue to Green v. United States, insofar as the substance of the charges was concerned, albeit quite different so far as the procedural history of the case was concerned, the defendant was indicted for first-degree murder but, before the case was submitted to the jury, he pleaded guilty to the lesser included offense of first-degree manslaughter. In the Ward case, the first-degree murder charge had actually been before the jury for two full days when the plea to the lesser charge was suddenly forthcoming. After subsequently and successfully attacking the guilty plea, the defendant was tried and convicted of first-degree murder. The distinction between Ward and Green is that in Ward, the defendant was not denied his right to have the tribunal remain together and resolve the greater charge. The decision to abort the trial as to that charge, by entering the plea, was his own.

A strong consensus in the state courts supports this line of reasoning. State v. Russo, 299 So. 2d 40 (Fla. App., 1974); Clark v. State, 294 Ala. 485, 318 So. 2d 805 (1974); People v. Baron, 130 Ill. App. 2d 588, 264 N.E.2d 423 (1970); State v. Wolf, 46 N. J. 301, 216 A. 2d 586 (1966); State v. Rhein, 117 N.J. Super. 112, 283 A. 2d 759 (1971); People v. Wolfson, 32 App. Div. 2d 813, 302 N.Y.S.2d 217 (1969); State v. Asimakis, 86 S. D. 339, 195 N.W.2d 407 (1972); State v. Stacy, 43 Wash. 2d 358, 261 P. 2d 400 (1953); State v. Satterlee, 58 Wash. 2d 92, 361 P. 2d 168 (1961). But see People v. McMiller, 389 Mich. 425, 208 N.W.2d 451 (1973). Cf. Brockman v. State, 27 Md. App. 682, 694 (1975).

Judge Karwacki ruled correctly that the Appellant could be tried for the greater offense of armed robbery following his successful overturning of his guilty plea to the lesser included charge of simple robbery.

The Appellant attacks the twenty-year sentence imposed by Judge Karwacki upon the basis of North Carolina v. Pearce, 395 U. S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1959) and the due process clause of the Fourteenth Amendment. North Carolina v. Pearce set forth limits “upon the imposition of a more severe punishment after conviction for the same offense at retrial.” The purpose of that decision was to prevent vindictiveness by a sentencing judge upon retrial because of the “chilling effect” that such a threat might have upon the exercise of the right to take an appeal.

At the outset, we note that armed robbery and simple robbery are not “the same offense” for sentencing purposes and within the contemplation of North Carolina v. Pearce, notwithstanding the fact that for double jeopardy purposes, primarily that aspect of double jeopardy law guarding against multiple punishment, they are treated as “the same offense.” In the one context, greater inclusive and lesser included offenses are being analyzed in terms of proper alternative treatment; in the other context, they are being analyzed in terms of prohibited cumulative treatment.

Even if we were dealing with “the same offense”, however, there was one dramatic new circumstance present at the time of the second sentencing. That circumstance was that there was no guilty plea. Judge Karwacki well articulated this new state of affairs as he prepared to impose sentence:

“I should say this preliminarily; I have viewed the setting aside of the robbery conviction as one which in effect voids the entire proceedings which took place before Judge Getty. That is not to say I have not considered the fact he imposed a six year sentence for a third count conviction on the guilty plea where he could have imposed a maximum of ten years. But, it was a result of a guilty plea. It was a result of negotiation, even though the sentence was not negotiated.
“Every defendant who pleads guilty does so in the hope he gets some concession in sentencing. This is one of the reasons for pleading guilty, especially to a lesser offense. So, it really doesn’t give me much help as I approach sentencing in this case. I have to approach this case as if the earlier proceedings in effect never occurred.”

As Judge Karwacki then went on to set forth the reasons for the sentence, it is clear from his well considered opinion that he wa£ not motivated by vindictiveness:

“I have to approach this looking to a robbery with a dangerous and deadly weapon of which the defendant stands convicted by jury of his peers who were convinced beyond a reasonable doubt that he did commit this robbery on the streets of this City with a knife, that he not only threatened the victim with the knife, but in fact stabbed him, that the victim required hospitalization for treatment of his injuries, and then look at the prior record of the defendant, who has been before the criminal justice system of this State since 1963, who in 1967 was found guilty of second degree murder and sentenced to seven years imprisonment, from whicl he received a very early parole two and a half years later; a defendant who in addition to the second degree murder has been guilty of assault, resisting arrest, many disorderly conducts, and I heard no constitutional objection to any of those convictions.
Is there any? Is there any suggestion he was not represented by counsel or waived counsel?
“I’ll consider only those for the purpose of my comments. But, given this kind of record I can only conclude that we are dealing here with a very dangerous individual, an individual who, in this case, armed himself with a knife, accosted his victim in the middle of the night, stabbed that victim and robbed him. When the Legislature prescribed the maximum penalty of 20 years for armed robbery, it is hard for me to conceive of a case which is more severe. In fact, I can’t conceive of any. The only thing missing here is the victim didn’t die and we would have had a murder indictment rather than armed robbery. The citizens of this City and this State require protection from individuals such as Mr. Sweetwine who would prey upon them, threaten their lives in this manner. I see no reason for any mitigation of the maximum penalty in this case.”

The legitimacy of considering the decision to go to trial rather than to plead guilty as an objective reason for imposing a different and less lenient sentence was forcefully enunciated in United States v. Anderson, supra. The defendant there sought to rely upon North Carolina v. Pearce, supra, and Blackledge v. Perry, 417 U. S. 21, 94 S. Ct. 2098, 40 L.Ed.2d 628 (1974), to establish that retrying him upon a greater charge was constitutionally prohibited vindictiveness. The Seventh Circuit pointed out that the change in the plea was a sufficient factor to justify the prosecution on the more serious offense and did not represent vindictiveness, saying at 588:

“In the instant case, however, the Government had never elected on which charge they would try Anderson if the case went to trial. The greater charge had been dropped in return for a plea of guilty to the lesser one. After that plea was vacated the situation reverted to the pre-plea stage. The fact that the greater charge was foregone as part of the plea arrangement does not mean that the Government would have prosecuted only the lesser charge originally if not guilty pleas had been entered as to both. Here we have a situation where there has been a major change other than just an appeal— the defendant had now pleaded not guilty to both charges. The decision to prosecute him for the more serious offense can on its face be explained in terms other than vindictiveness because of a successful appeal. There is no appearance of retaliation when a defendant is placed in the same position as he was in before he accepted the plea bargain. The mere reinstitution of the ... [greater] charges, under these circumstances, did not amount to a deprivation of Anderson’s due process rights.” (Emphasis supplied)

Under circumstances doctrinally indistinguishable from those at bar, two recent decisions of the Supreme Court have put the constitutional imprimatur upon the dispensing or withholding of leniency as leverage to induce a plea of guilty. In those cases, the criteria of North Carolina v. Pearce, supra, and Blackledge v. Perry, supra, were invoked to test the possible “chilling effect” of the threat of harsher treatment upon the very right to stand trial itself. In Corbitt v. New Jersey, 439 U. S. 212, 99 S. Ct. 492, 58 L.Ed.2d 466 (1978), the Supreme Court said at 58 L.Ed.2d 474:

“The cases in this Court since Jackson have clearly established that not every burden on the exercise of a constitutional right, and not every pressure or encouragement to waive such a right, is invalid. Specifically, there is no per se rule against encouraging guilty pleas. We have squarely held that a State may encourage a guilty plea by offering substantial benefits in return for the plea.”

In the present case, the Appellant did not suffer for having taken an appeal. He was placed back in the same position where he had started. The State again offered the same negotiated plea. He refused it and elected to go to trial. In dealing with just such a situation, Corbitt said at 58 L.Ed.2d 477:

“Those cases, as we have said, unequivocally recognize the constitutional propriety of extending leniency in exchange for a plea of guilty and of not extending leniency to those who have not demonstrated those attributes on which leniency is based.”

Even sterner measures were under constitutional scrutiny in Bordenkircher v. Hayes, 434 U. S. 357, 98 S. Ct. 663, 54 L.Ed.2d 604 (1978). There, during a plea negotiation session, the prosecutor threatened to re-indict on greater charges if the defendant did not plead guilty to the charges then pending. The defendant pleaded not guilty and the prosecutor carried out his threat. In holding that even this was not a constitutionally prohibited “chilling effect”, the Supreme Court said at 54 L.Ed.2d 611:

“While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable ‘— and permissible —’ attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ Chaffin v. Stynchcombe, supra, 412 US, at 31, 36 LEd2d 714, 93 S Ct 1977. It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forego his right to plead not guilty.”

There is also a broad policy question at stake. If the prosecutor cannot rely upon the plea bargain, the potential “chilling effect” upon the very institution of plea bargaining could be devastating. Just such considerations were articulated by the United States Court of Appeals for the Second Circuit in United States ex rel. Williams v. McMann, 436 F. 2d 103 (1970). The Second Circuit there said, at 436 F. 2d 106-107:

“ ‘For us to hold that one in Williams’s position may not be tried and sentenced upon the charge originally brought would encourage gamesmanship of a most offense nature. * * * Indeed, any reason the defendant could conceive for setting aside his plea and sentence would lose him little. If the defendant’s argument were to prevail, then a trial on the lesser charge only could result. The defendant would thus run no risks by this maneuver for his trial could end in acquittal, but if he should be convicted, he urges he could not receive a sentence greater than that imposed on the guilty plea to the lesser offense. This is nothing more than a ‘heads-I-win-tails-you-lose’ gamble. To frustrate this strategy, prosecutors would be restrained from entering plea bargains, thereby adding further to the staggering burdens of our criminal courts, and judges would become more rigid in exercising their discretion in favor of permitting withdrawal of a guilty plea. This would hardly enhance the administration of criminal justice.’ ”

For the indispensable role now being played by the institution of plea bargaining in the administration of criminal justice, both locally and nationally, see State v. Brockman, supra at 692-693 and Santobello v. New York, supra.

In a nutshell, the Appellant, with his initial guilty plea, “bought” leniency and then stopped payment on the check. His insistence that he be treated as if he had not stopped payment reeks of disingenuousness. Fundamental due process of law was not offended by Judge Karwacki’s sentencing in this case.

The remaining contentions will not detain us long. The Appellant challenges the legal sufficiency of the evidence. In view of the fact that two policemen caught him in the act and testified to that effect, the contention is absurd. The Appellant urges that there was an erroneous amendment of his indictment. The short answer is that the indictment was not amended. The Appellant urges that Judge Karwacki was prejudiced against him. This charge is predicated on an observation made by Judge Karwacki at the disposition hearing that the defendant had managed to make a $10,000 bond and yet was represented, as an indigent, by the Public Defender’s office. There is. no evidence in the record that Judge Karwacki made any erroneous ruling or evidenced prejudice in any way in his conduct of the trial. The Appellant contends that the trial judge erred in not sustaining his objection to the prosecutor’s comment during closing argument. We have reviewed the record and find nothing improper in the argument. It follows, therefore, that Judge Karwacki was not in error in finding to the same effect. The Appellant contends that he was erroneously denied a postponement when he suddenly learned that the State could go forward on the armed robbery charge. The court did adjourn for lunch to give the Appellant time to consider his election. The granting or denying of a postponement is a matter which rests in the sound discretion of the trial judge and we perceive no remote abuse thereof in this case.

Judgment affirmed; costs to be paid by appellant.

      . This expectation was fully revealed in Appellant’s argument at the Outset of the retrial.

      . Where the State has breached the agreement, of course, the defendant has the option of insisting upon specific performance as an alternative to voiding a plea and beginning anew Santobello v. New York, 404 U. S. 257. 92 S. Ct. 495, 30 L.Ed.2d 427 (1971); State v. Brockman. 277 Md. 687 (1976).

      . We are using the word metaphorically and are not invoking the formal law of contracts. See State v. Brockman, supra, at 277 Md. 697.

      . It is not to play games with words to distinguish between “less lenient” and “harsher.” The difference in the direction of movement is the conceptual key to the whole problem before us. Involved is the proper identification of what is “the norm” and what is “the departure from the norm.” The norm is what an appropriate sentence would be following a full-blown trial and conviction. The departure from the norm is the abnormally lenient sentence which is exchanged, in a flat-out quid pro quo deal, for the abnormal foregoing of all chance of acquittal and the abnormal foregoing of “his day in courírto which a defendant would be otherwise entitled. It is, therefore, not to “enhance” punishment but simply to return to normal when a sentencing judge, upon remand, forbears abnormal leniency toward a defendant who is no longer delivering that special consideration which “bought” him the abnormal leniency in the first place. It is in this regard that the situation now before us bears no resemblance to that before the Supreme Court in North Carolina v. Pearce. It is one thing to punish; it is quite another to deny a reward which has no longer been earned.


author: Lowe, J.,

text:
    JOHN FRANKLIN FAIRBANKS v. STATE OF MARYLAND
    [No. 803,
    September Term, 1978.]

      Decided March 15, 1979.

    The cause was submitted on briefs to Moylan, Lowe and Mason, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Victoria A. Salner, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, F. Ford Loker, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Stephen M. Schenning, Assistant State’s Attorney for Baltimore County, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

On July 18, 1978, John Franklin Fairbanks, the appellant, was convicted by Judge William Buchanan in the Circuit Court for Baltimore County, of robbery with a dangerous and deadly weapon and of the use of a handgun in the commission of a crime. On August 16, 1978, he was sentenced to twenty years of, imprisonment for the robbery, and to a concurrent five year sentence for the handgun offense. The sole issue raised on appeal is whether the court properly accepted appellant’s waiver of a jury trial pursuant to Md. Rule 735.

Appellant raised no objection below to the waiver of trial by jury. In fact, his attorney volunteered that:

“Mr. Fairbanks understands what a jury trial is. He understands he has the absolute right to have a jury trial and wishes to waive that right and be tried by the Court here today. Is that correct, Mr. Fairbanks?”,
to which appellant replied:
“Yes, sir, it is.”

Appellant relies on Biddle v. State, 40 Md. App. 399 (1978), to argue that the record must show clear compliance with Md. Rule 735, and that an on the record inquiry of appellant was required of the court to ascertain if his waiver was knowingly and voluntarily made with full knowledge of his right to a jury trial. Md. Rule 735, interpreted by Biddle, has been altered by amendment. 5 Md. Reg. 1788-1789 (1978). To underscore the changes in Rule 735 since Biddle, we will set forth the rule as amended, bracketing in bold face (double brackets) that which was deleted and italicizing (by underlining) that which was added. Consideration of this amended version is necessary because the Court of Appeals has directed that the rule change be applied to

“all proceedings commenced on and after January 1, 1979, and insofar as practicable, to all proceedings then pendingId. at 1788 (emphasis added).

We see nothing to indicate the impracticability of applying the amended version. Rule 735 reads:

“a. How Made — Time.
Subject to section e of this Rule, a defendant shall elect to be tried by a jury or by the court. The election shall be made pursuant to section b of this Rule and shall be filed within the time for filing a plea pursuant to Rule 731 [[(Pleas)]]. If the defendant elects to be tried by the court, the State may not elect a jury trial. [[After an election has been filed, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown. In determining whether to allow a change in election, the court shall give due regard to the extent, if any, to which trial would be delayed by the change.]] b. Form of Election.
An election of a court or jury trial shall be in writing, signed by the defendant, witnessed by his counsel, if any, and filed with the clerk of the court in which the case is pending. It shall be substantially in the following form:
(caption of the case)
Election of Court Trial or Jury Trial
I know that I have a right to be tried by a jury of 12 persons or by the court without a jury. I am aware that before a finding of guilty in a jury trial all 12 jurors must find that I am guilty beyond a reasonable doubt. I am aware that before a finding of guilty in a court trial the judge must find that I am guilty beyond a reasonable doubt.
I hereby elect to be tried by:............. (insert ‘the court’ or ‘a jury’) I make this election knowingly and voluntarily and with full knowledge that I may not be permitted to change this election.
Witness:
Signature of Counsel Signature of Defendant Date:.............
c. When No Election Filed.
If the election is not filed within the time provided by this Rule, the court, on its own motion or upon the motion of the State’s Attorney, may require the defendant, together with his counsel, if any, to appear before the court for the purpose of making the election in open court. If the defendant fails or refuses to make an election after being advised by the court on the record that his failure or refusal will constitute a waiver of his right to a trial by jury and if the court determines that the defendant knowingly and voluntarily is waiving his right with full knowledge of it, the defendant [[may then be tried by the court]] will be deemed to have elected a trial by the court.
d. When Court Trial Elected.
If the defendant [[files an election]] elects to be tried by the court, the trial of the case on its merits before the court may not proceed until the court determines, after inquiry of the defendant on the record, that the defendant has made his election for a court trial with full knowledge of his right to a jury trial and that he has knowingly and voluntarily waived the right. If the court determines otherwise, it shall give the defendant another election pursuant to this Rule.
[[e. Causes From District Court.
Where the defendant has a right to a jury trial and his cause has been transferred from the District Court because he has demanded a jury trial, he shall be tried by a jury and may not elect a court trial except with leave of court for good cause shown.]]
e. Change of Election.
1. Change of Court Trial Election.
Subject to the provisions of section d, after an election for a court trial is made, the court may not permit the defendant to change his election except upon motion made prior to trial and for good cause shown. In determining whether to allow a change in the election, the court shall give due regard to the extent, if any, to which trial would be delayed by the change.
2. Change of Jury Trial Election.
Añera jury trial has been elected pursuant to this Rule or in the District Court, the defendant may waive his right to a jury trial at any time up to 72 hours prior to the time of trial. The court may allow a change in the election of a jury trial at any time before trial upon motion and for good cause shown. ”

Despite there being no written election in this case pursuant to subsections a. and b., the amended language brings us under subsection d. See Biddle, supra. That rule requires only that the court “determines, after inquiry ... on the record” that the election was knowing, voluntary, and with full knowledge of defendant’s rights. It does not require that the “inquiry” be by the court, only that it be on the record, to substantiate the court’s determination.

That is precisely what was done here. The attorney’s inquiry of appellant and appellant’s subsequent affirmation, indicated a voluntary, knowing waiver of jury trial by appellant, with full knowledge of his right on the record. It was clearly sufficient to justify the court’s determination of a knowing and voluntary waiver. The Court of Appeals has interpreted Boykin v. Alabama, 395 U. S. 238 (1969), as not requiring that a precise rubric or litany must be followed to effect a waiver of a constitutional right, such as the right to trial by jury. Davis v. State, 278 Md. 103, 107-108, 114 (1976) (taking of guilty pleas context). Even Rule 735 itself, in setting forth a proposed form to be followed when a written waiver is prepared, indicates such should be “substantially” complied with. Md. Rule 735 b. Common sense is the criterion.

We find that the appellant’s waiver of a jury trial was properly accepted by the trial judge in accordance with Md. Rule 735.

Judgments affirmed.

Costs to be paid by the appellant.