author: Moylan, J.,

text:
    STATE OF MARYLAND v. WILLIAM MARS
    [No. 542,
    September Term, 1977.]

      Decided June 7, 1978.

      The cause was argued before Gilbert, C. J., and Moylan and Liss, JJ.

      Bruce C. Spizler, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Donaldson C. Cole, Jr., State’s Attorney for Cecil County, and Paul S. Podolak, Assistant State’s Attorney for Cecil County, on the brief, for appellant.

      William B. Calvert, with whom were O. Robert Lidums and Rollins & Calvert on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

This appeal by the State involves exclusively the application of the Maryland Statute of Limitations in non-penitentiary misdemeanor cases. The Annotated Code of Maryland, Courts and Judicial Proceedings Article, § 5-106 (a), provides:

“Except as provided by this section, a prosecution for a misdemeanor not made punishable by confinement in the penitentiary by statute shall be instituted within one year after the offense was committed.”

The appellee in this case, William Mars, was initially indicted by a Cecil County grand jury of 1) false pretenses, 2) conspiracy to commit false pretenses, 3) conspiracy with a public officer to commit malfeasance in office and 4) conspiracy with a public officer to commit misfeasance in office. The latter three of these charges represent non-penitentiary misdemeanors so as to require that a prosecution for them must be “instituted within one year after the offense was committed.”

The evidence established that the offenses in this case took place on September 2,1975. Warrants of arrest were issued on August 20,1976, well within the period of limitations. The Cecil County grand jury heard evidence and returned an indictment on September 16, 1976, two weeks beyond the one-year period of limitations. Upon that basis, the appellee moved pretrial to dismiss the indictment. A hearing was held in the Circuit Court for Cecil County and the Motion to Dismiss was granted. The State has taken a timely appeal.

As to what action constitutes the commencement of prosecution so as to stop the running of the Statute of Limitations, the Maryland law is clear that the issuance of an arrest warrant constitutes such action. This Court so held in McMorris v. State, 26 Md. App. 660. In affirming that action by this Court, the Court of Appeals, speaking through Judge Smith, undertook a scholarly analysis of the earlier law in this State and of the case law around the country. McMorris v. State, 277 Md. 62. Judge Smith pointed out, at 277 Md. 67-68:

“Implicit in the holdings of this Court in Hahn and Neff is the proposition that one looks at the date of issuance of a warrant rather than the date of a subsequent grand jury indictment to determine whether the statute of limitations has been tolled. In Hahn the warrant apparently was issued by a justice of the peace on June 30, 1943. The indictment was filed on July 2,1946. The charge was bastardy. The child was born October 8, 1942. The statute of limitations was two years. ...
The plain implication of that decision is that the statute of limitations would have been tolled in that case had there been proper proof of the issuance of the warrant.

It is stated in 21 Am.Jur.2d Criminal Law § 161 (1965):

‘The statute of limitations runs from the time the offense is committed until the prosecution is commenced, unless some intervening act occurs to interrupt it. If the finding of an indictment or the filing of an information is the first step in a criminal case, the prosecution is commenced by the finding and return of the indictment or the filing of the information, and the running of the statute is thereby stopped. But when, as is usually the case, there are preliminary proceedings, the prosecution is commenced and the statute is tolled at the time a complaint is laid before a magistrate and a warrant of arrest is issued____’ Id. at 228.”

The appellee recognizes this undisputed principle of law in the abstract but he attempts to engraft upon it a qualification that an arrest warrant will not stop the running of the Statute of Limitations unless there is “a good faith attempt to serve the warrant.” Except by the most strained of reasoning, he offers us no authority for the legal principle he seeks to establish. He points to the fact that in the McMorris case, the recitation of facts includes a mention that efforts were made, albeit unsuccessfully, to serve the warrant immediately in that case. The clear holding by this Court, at 26 Md. App. 670, did not embrace the peripheral description of the facts in that case as a sine qua non for the holding. It rather stated flatly:

“We hold that issuance of the arrest warrant by the District Court tolled the statute of limitations. The prosecution of McMorris was timely.”

The Court of Appeals, in its McMorris decision, did not even bother to include within its statement of facts the mention of the effort at immediate service relied upon so critically by the appellee here. The holding of the Court of Appeals was not in any way qualified:

“We hold that the prosecution was ‘commenced’ or ‘instituted’ upon the issuance of the arrest warrant in the District Court. Since this took place less than one year from the date of the offense, it follows that the prosecution is not barred by the statute of limitations.” 277 Md. at 70.

The earlier Maryland decision of Hahn v. State, 188 Md. 166, offers no support for the appellee’s position. In that case, the charge was bastardy and the statute of limitations was two years. The child was born October 8,1942, which event commenced the running of the statute. A warrant of arrest was apparently issued by a justice of the peace on June 30, 1943, well within the period of limitations. The indictment was returned on July 2, 1946, almost two years beyond the period of limitations. In explaining why delays of such magnitude had apparently occurred, the Court mentioned the fact that the defendant in that case was outside the United States in the armed services. The entire holding in the Hahn case, however, deals with the adequacy of proof of the issuance of the arrest warrant. As that decision was analyzed by Judge Smith in McMorris, at 277 Md. 68:

“The plain implication of that decision is that the statute of limitations would have been tolled in that case had there been proper proof of the issuance of the warrant.”

The appellee relies upon his proffer of testimony to the effect that the State acknowledged that its purpose in obtaining arrest warrants was to stop the running of the statute of limitations. Although there was some very real, albeit imprecise, dispute evidenced in the record as to what statement of facts was actually agreed upon, see Barnes v. State, 31 Md. App. 25, it is a distinction without a difference for present purposes. Even accepting that version most favorable to the appellee, it does not establish any procedural impropriety on the part of the State. It is perfectly true in this case, and in all cases, that the State could proceed immediately to the grand jury stage and forego the arrest warrant stage. The fact that it was alert to the limitations problem and the fact that it eschewed a shortcut and went the warrant route for the deliberate purpose of “commencing” prosecution before limitations had run is not an uncommendable act. Indeed, the propriety of obtaining a warrant in the District Court even while determined to proceed onward to the grand jury stage was endorsed by the well-reasoned analysis of Judge Smith in McMorris, at 277 Md. 69-70:

“If the State had brought McMorris to trial on this warrant in the District Court, no question relative to limitations properly could have been raised. It elected to obtain an indictment which included charges which could not be tried in the District Court, being beyond its jurisdiction. We do not interpret, as does McMorris, the fact that the State took all charges before the grand jury as such an abandonment of the earlier proceedings in the District Court as to cause the period of limitations to be judged from the date of the indictment. Such a holding would be contrary to the reasoning of our predecessors in Hahn, Kiefer, and Neff The proceeding before the grand jury was but a continuation of the proceeding in the District Court. It was in the interest of the orderly administration of justice that all of the charges growing out of the incidents of January 23,1973, were consolidated into one indictment so that-they might be tried together. Obviously, trial of the conspiracy charge in the District Court and the distribution charge in the circuit court would have involved two appearances for counsel on both sides as well as for the witnesses. McMorris might well have regarded himself as being unduly harassed by the State by such a procedure.”

By the same token, an acknowledgement on the part of the State that it might have aborted the prosecution (and thereby never served the warrants) had the grand jury failed to return an indictment in no way indicates any impropriety in the commencement of the prosecution. Ongoing developments constantly call for the continuing reevaluation of any case.

This prosecution was commenced within the one year period of limitations and the commencement was not tainted. It should have been permitted to run its normal course.

Order to dismiss counts 2, 3 and 4 reversed; case remanded for trial; costs to be paid by appellee.

      . The Motion to Dismiss was granted as to counts 2, 3 and 4. The appellee actually went to trial on the first count and was found not guilty by a jury.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    MARGARET MELTON PRATT v. STATE OF MARYLAND
    [No. 857,
    September Term, 1977.]

      Decided June 7, 1978.

      The cause was argued before Thompson, Lowe and Couch, JJ.

      Robert C. Heeney and John M. Quinn, with whom were Heeney, MeAuliffe, Rowan & Abell on the brief, for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Laurence D. Beck, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The appellant, Margaret Melton Pratt, was convicted in the Circuit Court for Montgomery County of murder in the second degree and use of a handgun in the commission of a crime of violence. A fifteen year sentence, seven of which were suspended, was imposed on the murder charge along with a concurrent five year sentence for the handgun conviction.

The murder scenario which led to this appeal began on October 22, 1976 when appellant removed a .32 caliber automatic pistol from her husband’s business vault. At that time she was emotionally distressed and planned to use the gun to commit suicide. After removing the weapon appellant went home, stopping only at a local grocery store to purchase some food for the evening meal. When she arrived home, her husband, William Pratt, who had left work early because of illness, was watching television. Appellant prepared the evening meal and after dinner she and her husband spent an uneventful evening watching television before retiring for the night.

Appellant could not sleep thinking about her contemplated suicide and the consequences of such an act on her husband because she handled the family finances, and tended to his personal needs which were many because of general ill health. There was also some question as to the financial position of the business which worried her. At approximately 7:00 the next morning, after a sleepless night, appellant entered her husband’s bedroom, placed a gun against his head, and shot him. After the initial shot was fired Mr. Pratt began to breathe erratically so appellant fired a second shot to end any possible suffering.

After the shooting, appellant packed an overnight bag and traveled to the farm of friends near Front Royal, Virginia. Her dog was buried on the farm and she spent two or three hours praying at its gravesite. As the friends were not at home, she spent the night in a nearby motel before returning to her home the next day. When appellant arrived home, she wandered around in her car visiting the neighborhood in which she and her husband formerly lived. Realizing she would eventually be apprehended, she went to the police and informed them of her crime. After the police verified the commission of the murder, appellant was formally arrested and ultimately transported to Springfield Hospital Center for psychiatric evaluation.

During the trial the defense did not contest the accusation that appellant had killed her husband, but contended she was insane at the time of the crime. In support of her contention appellant presented two psychiatrists, Dr. Gerald Polin and Dr. Leon Yochelson. They testified that at the time of the crime appellant was suffering from a mental illness and lacked substantial capacity to conform her conduct to the requirements of the law.

In order to counter this testimony the State produced three psychiatrists. All expressed the opinion that appellant was suffering from a mental disorder at the time of the offense; two of the three psychiatrists felt she was legally responsible for her act.

On appeal appellant attacks the validity of her convictions, contending the trial judge committed reversible error in:

(1) Admitting the testimony of Dr. Brian Crowley, one of the State’s psychiatrists, who originally examined appellant at the request of defense counsel;
(2) Refusing to admit testimony corroborative of the factual basis of the opinions given by the defense psychiatrists, even though the State attacked their basis of knowledge;
(8) Refusing to admit a video tape of an interview between appellant and Dr. Polin;
(4) Admitting a report written by Dr. McClelland stating appellant was criminally responsible for her acts, after he was unable to express an opinion on the question at trial;
(5) Unduly restricting cross-examination of a police officer concerning the amount of money appellant had at the time of her arrest;
(6) Admitting pictures of the body of the deceased; and
(7) Denying her right to argument of counsel regarding a possible recommendation of mercy by the jury.

I Dr. Brian Crowley’s Testimony

One of the three psychiatrists presented by the State, Dr. Crowley, had originally been retained by the defense. Dr. Crowley testified that although appellant was suffering from a mental disorder at the time of the offense, she did not lack substantial capacity to conform her conduct to the requirements of the law. Appellant mounts a multifaceted attack on the admission of this testimony arguing it should have been excluded on the grounds of: (1) the attorney-client privilege, (2) the psychiatrist-patient privilege, or (3) the work product doctrine. We conclude admission of the testimony violated the attorney-client privilege so we will not discuss the other arguments in any detail.

The attorney-client privilege was defined in Harrison v. State, 276 Md. 122, 135, 345 A. 2d 830, 838 (1975) as follows:

“ ‘(1) Where legal advice of any kind is sought (2) from a professional legal adviser in his capacity as such, (3) the communications relating to that purpose, (4) made in confidence (5) by the client, (6) are at his insistence permanently protected (7) from disclosure by himself or by the legal adviser, (8) except the protection be waived.’ ” Quoting 8 J. Wigmore, Evidence § 2292 at 554 (McNaughton rev. 1961).

The theory behind the creation of the privilege is that a lawyer can act effectively only when he is fully advised of the facts and the client’s knowledge that a lawyer cannot reveal his secrets promotes full disclosure. Harrison v. State, supra, 276 Md. at 133-134, 345 A. 2d at 837; Trupp v. Wolff, 24 Md. App. 588, 608-609, 335 A. 2d 171, 183-184, cert. denied, 275 Md. 757 (1975). The privilege is not confined in scope to communications made solely between an attorney and his client but includes communications made to agents employed by the attorney, such as a stenographer, secretary, clerk, or any employee necessary for effective operation. 8 J. Wigmore, Evidence § 2301 at 583; C. McCormick, Handbook of the Law of Evidence § 91 at 188-189 (2d. ed. E. Cleary 1972).

In cases where a question arises concerning a client’s criminal responsibility for an act, a psychiatrist is indispensable for his help in the planning and preparation of the defense as well as his testimony at trial. The attorney could hardly explore the basis of adverse testimony intelligently, without such help. See United States v. Taylor, 437 P. 2d 371, 377 n.9 (4th Cir. 1971); United States v. Alvarez, 519 F. 2d 1036, 1046 (3rd Cir. 1975); United States ex rel. Edney v. Smith, 425 F. Supp. 1038, 1047-1048 (E.D.N.Y. 1976), aff’d mem. 556 F. 2d 556 (2nd Cir. 1977); People v. Lines, 13 Cal. 3d. 500, 531 P. 2d 793, 800 (1975); United States v. Kovel, 296 F. 2d 918, 921 (2nd. Cir. 1961) (Friendly J.).

As the assistance of a psychiatrist is essential where the criminal responsibility of a client is in question, we hold that communications made to a psychiatrist for the purpose of seeking legal advice are within the scope of the attorney-client privilege. This position is supported by the overwhelming majority of courts and commentators that have considered the question.

The State, not seriously disputing that communications made to a psychiatrist in conjunction with the preparation of an insanity defense should be afforded the protection of the attorney-client privilege, argues appellant waived any claim of privilege by placing her sanity in issue. Although there can be no question that a client may expressly or impliedly waive the attorney-client privilege, Harrison v. State, supra, 276 Md. at 136-138, 345 A. 2d at 839; Shawmut Mining Co. v. Padgett, 132 Md. 397, 404, 104 A. 40, 43 (1918), we do not think a waiver occurs when an accused places his sanity in issue. There is no precise formula for determining whether the privilege has been waived in a particular case. In deciding this question various factors such as the client’s intent to waive, fairness, and consistency of conduct must be considered in view of the purpose of the privilege. See Harrison v. State, supra, 276 Md. at 138, 345 A. 2d at 840; 16 Minn. L. Rev. 818, 823 (1932).

In arguing that fairness dictates that the privilege should be deemed to have been waived the State relies on the rationale of People v. Edney, 39 N.Y.2d 620, 350 N.E.2d 400 (1976). That court concluded there was no need to protect communications made to a psychiatrist once the issue of the client’s sanity was placed in issue. The court’s reasoning was predicated on several factors. First, under New York law once an accused pleads insanity he is required to disclose the underlying basis of his affliction to prosecution psychiatrists. Thus, the court reasoned that if an insanity plea is entered the facts in question will be available to the prosecution in any event and, as a result, the waiver rule would not deter a client from communicating with a psychiatrist hired to assist his attorney. Second, the court noted that under the work product doctrine an attorney could consult a psychiatrist without fear of future disclosure as long as the attorney, and not the client, conveyed the necessary facts to the expert.

Despite Edney we think the better approach is that the client does not waive the attorney-client privilege by placing sanity in issue. See particularly, United States v. Alvarez, supra at 1046-1047; People v. Lines, supra, 531 P. 2d at 799-802; State v. Kociolek, supra, 129 A. 2d at 425-426. Cf., Pouney v. State, 353 So. 2d 640 (Fla. App. 1977) (accused does not waive privilege by placing sanity in issue unless trier of fact is so deprived of a valuable witness as to undermine public interest in the administration of justice). The waiver rule urged by the State would seriously undermine the purpose of the privilege by impairing effective assistance of counsel in several respects. Even though the work product doctrine serves to protect communications between the attorney and the psychiatrist, as a practical matter the advice of an expert based exclusively on an attorney’s communications will be worth much less than advice given after an examination of the client. In addition, as expert testimony is essential to a defense of insanity, the attorney will eventually have to submit his client for examination before formulating a defense strategy. In so doing he will be running the risk that the psychiatrist will later be called to testify by the State. As a result the client might be less open and candid in communicating with the psychiatrist. This in turn impairs the value of the psychiatrist’s advice and lessens the effectiveness of counsel. The problem posed was convincingly stated by the Court in United States v. Alvarez, supra at 1046-1047.

“The issue here is whether a defense counsel in a case involving a potential defense of insanity must run the risk that a psychiatric expert whom he hires to advise him with respect to the defendant’s mental condition may be forced to be an involuntary government witness. The effect of such a rule would, we think, have the inevitable effect of depriving defendants of the effective assistance of counsel in such cases. A psychiatrist will of necessity make inquiry about the facts surrounding the alleged crime, just as the attorney will. Disclosures made to the attorney cannot be used to furnish proof in the government’s case. Disclosures made to the attorney’s expert should be equally unavailable, at least until he is placed on the witness stand. The attorney must be free to make an informed judgment with respect to the best course for the defense without the inhibition of creating a potential government witness.”

Another reason the psychiatrist’s testimony should be rejected is because his employment by the other side tends to add undue weight to his testimony. In the instant case, the State emphasized this in its closing argument to the jury. This problem, however, could be eliminated by prohibiting evidence concerning the expert’s original employer from being presented to the jury. See, United States ex rel. Edney v. Smith, supra at 1053. Cf., Mayor of Baltimore v. Zell, 279 Md. 23, 28, 367 A. 2d 14, 17 (1977) (admission of evidence indicating an expert was originally retained by the other party is within the sound discretion of the trial court).

It has been suggested that application of the attorney-client privilege to psychiatrists allows the defense to suppress unfavorable experts while shopping around for an expert that supports its position. See United States ex rel. Edney v. Smith, supra at 1052. When one considers this possibility it seems that fairness would dictate that the State be granted access to all psychiatrists employed by the defense, even though it does not intend to use them at trial. A close examination of this argument, however, reveals that the State would not significantly benefit from access to these individuals. The State already has access to the underlying factual basis of the accused’s mental affliction for use by its psychiatrists. See Md. Code, Art. 59, § 25 (b) (1972 Repl. Vol.). Hence, the actual information disclosed would not be of any real value to the State. As long as there is a sufficient number of experts available, there is no real danger, as a practical matter, of the defense using the cloak of the privilege to remove “unfriendly” experts.

II The Refusal to Admit Corroborative Testimony

In formulating their opinions, both defense psychiatrists considered the history given by appellant dealing with her concern over Mr. Pratt’s health, his increasing vanity, and the deteriorating finances of the family to be significant. During cross-examination the State asked several questions concerning what attempts the psychiatrists had made to verify the information given by appellant. The natural implication of these questions was that the history given by appellant might have been falsified and the diagnoses of the psychiatrists would, therefore, be inaccurate. Defense counsel attempted to rehabilitate the testimony of Dr. Polin and Dr. Yochelson by offering testimony to corroborate the factual basis of their opinion. Several witnesses were offered in this regard. Through these witnesses the defense attempted to verify that Mr. Pratt was in poor health; he had become increasingly demanding of appellant; the family business was experiencing financial difficulties; and appellant was deeply concerned over these matters. The trial judge ruled that since the psychiatrists had not relied on these witnesses to prepare appellant’s history they could not be used as corroborative witnesses. The trial judge did, however, admit evidence bearing on appellant’s state of mind within a month of the murder, apparently ruling that it was independently relevant.

Once the testimony of a witness has been impeached, a party is generally allowed to introduce corroborative evidence. See Mayor of Baltimore v. Zell, supra, 279 Md. at 27, 367 A. 2d at 16; Gill v. Staylor, 93 Md. 453, 49 A. 650 (1901). This same rule, with certain exceptions which are not relevant here, applies to the testimony of expert witnesses. 2 E. Conrad, Modern Trial Evidence § 695 at 590 (1956). Such corroborative evidence is not restricted in form; any evidence corroborative of the testimony may be used. In the case sub judice, the action of the trial judge, in effect, restricted the availability of such evidence to the testimony of appellant. While the admissibility of corroborative evidence is largely within the trial court’s discretion, 2 F. Wharton, Criminal Evidence § 494 at 475 (13th ed. C. Torcía 1972), we think the trial court here was unduly restrictive in ruling as he did under the facts of this case.

Ill Admissibility of the Video Tape

The third error claimed by appellant is that the trial judge should not have prohibited defense counsel from using a video tape of an interview conducted by Dr. Polin. The tape in question, which was prepared during Dr. Polin’s initial interview with appellant, was used as a diagnostic aid and was made without appellant’s knowledge. According to Dr. Polin he used the video tape to observe the demeanor of appellant so that he could verify his impressions concerning her veracity. In addition the video tape allowed him to confirm certain of his own observations. The trial judge did not view the tape in ruling on its use but merely stated he felt the tape would not be necessary or helpful. The tape was not included as part of the record on appeal.

In Tobias v. State, 37 Md. App. 605, 615, 378 A. 2d 698, 704 (1977), cert. denied, December 21, 1977, we held that video tape recordings are admissible on the same basis as motion picture films and subject to the same general rules applicable to photographic evidence. See Colbert v. State, 37 Md. App. 383, 386-387, 377 A. 2d 585, 587-588 (1977). Thus, the evidence was not inadmissible merely because it was a video tape. Although the record is not clear on exactly what use appellant planned to make of the tape, presumably it was going to be used to help explain the basis of Dr. Polin’s opinion. In this regard we note that an expert is not only permitted but may be required to demonstrate the basis for his opinion. Dickinson-Tidewater v. Supervisor of Assessments, 273 Md. 245, 253, 329 A. 2d 18, 23 (1974); Noble v. Director, 32 Md. App. 192, 202-204, 359 A. 2d 253, 259 (1976).

While the absence of the tape from the record precludes us from specifically passing on its admissibility, we do not see how the trial judge could have properly exercised his discretion in deciding the evidence would not be necessary or helpful without viewing the tape. Cf. Tripp v. State, 36 Md. App. 459, 482-483, 374 A. 2d 384, 397-398 (1977), cert. denied, September 7, 1977 (exclusion of video tape upheld where trial judge, after viewing the tape, concluded it might confuse the jury). To the extent that the tape may have been cumulative, it was, of course, within the discretion of the trial judge to admit or reject it. See Drug Fair v. Smith, 263 Md. 341, 355, 283 A. 2d 392, 400 (1971); O’Connor v. Plotkins, Inc., 32 Md. App. 329, 334, 362 A. 2d 95, 98 (1976). If this was the basis of the tape’s exclusion it would have been helpful if the trial judge had clearly stated this in his ruling.

IV Applicability of the Business Record Exception to the Report Written by Dr. McClelland

After the second psychiatrist to testify for the State, Dr. Ellis McClelland, was unable to express an opinion on appellant’s sanity, the prosecutor offered two letters, which were part of the forensic staffing report prepared at Springfield Hospital Center, pursuant to a court ordered examination under Md. Code, Art. 59, § 25 (b) (1972 Repl. Vol.). In those letters Dr. McClelland expressed the opinion that appellant was criminally responsible for her actions at the time of the murder. Counsel for appellant objected on the grounds the State was attempting to impeach its own witness but the court ruled the letters were admissible as substantive evidence under the business record exception to the hearsay rule.

On appeal appellant renews the argument that the admission of the letters allowed the State to impeach its own witness. Although a party cannot use a prior inconsistent statement to impeach his own witness, Fleming v. Prince George's County, 277 Md. 655, 677, 358 A. 2d 892, 904 (1976); Patterson v. State, 275 Md. 563, 571, 342 A. 2d 660, 666 (1975), a different situation exists where a prior inconsistent statement falls within a recognized exception to the hearsay rule. In these situations, the statement is admissible as substantive evidence even though it has the collateral effect of impeaching a witness’s testimony. See Smith v. Branscome, 251 Md. 582, 588-589, 248 A. 2d 455, 460 (1968); Capital Raceway Promotions v. Smith, 22 Md. App. 224, 237 n. 4, 322 A. 2d 238, 245 n. 4 (1974).

In the instant case it is clear the letters were hearsay; hence, their admissibility turns on whether they fall within an exception to the hearsay rule. The only possible exceptions pertinent are the business record and public record exceptions contained in Md. Code, Cts. and Jud. Proc. Art. § 10-101 and § 10-204 (1974). As the letters were admitted under the business record exception and this is the only ground for admissibility urged by the State, we will discuss this exception in some detail.

In order to be admissible as a business record the letters must have been made in the regular course of a business as a record “of an act, transaction, occurrence, or event...” and it must have been the practice of the business to make such a record. See, e.g., Pine Street Trading Corp. v. Farrell Lines, Inc., 278 Md. 363, 374, 364 A. 2d 1103, 1110 (1976); Harrod v. State, supra at 241 n. 11. Ordinarily, hospital records satisfy these criteria and the information they contain is admissible as long as it is pathologically germane. Dietz v. Moore, 277 Md. 1, 6, 351 A. 2d 428, 432 (1976); Yellow Cab Company v. Hicks, 224 Md. 563, 569-570, 168 A. 2d 501, 504 (1961); Honick v. Walden, 10 Md. App. 714, 719-720, 272 A. 2d 406, 410 (1971). See Powell, Admissibility of Hospital Records Into Evidence, 21 Md. L. Rev. 22 (1961).

One special problem presented by hospital records is whether diagnostic opinions contained in such records are admissible. If the diagnostic opinion is introduced through the hospital records the expert who rendered the opinion is not on the stand for cross-examination; consequently, some courts have refused to admit such statements altogether or have limited their admission to those opinions based on objective data and not readily susceptible to conflicting interpretations. See Grewe v. Mount Clemens General Hospital, 47 Mich. App. 111, 209 N.W.2d 309, 311 (1973); Reed v. Aetna Casualty & Surety Co., 535 S.W.2d 377, 379 (Tex. Civ. App. 1976); Neely v. Johnson, 215 Ya. 565, 211 S.E.2d 100, 106 (1975). This Court, however, has previously held that such opinions are admissible as long as it appears from the hospital record that they were expressed by a qualified person. Marlow v. Cerino, 19 Md. App. 619, 636-637, 313 A. 2d 505, cert. denied, 271 Md. 739 (1974). Accord, Rivers v. Union Carbide Corp., 426 F. 2d 633, 637-638 (3rd. Cir. 1970); Thomas v. Hogan, 308 F. 2d 355, 360-361 (4th Cir. 1962); Weis v. Weis, 147 Ohio St. 416, 425, 72 N.E.2d 245, 250 (1947); Myers v. Genis, 235 Pa. Super. 531, 344 A. 2d 691, 694-695 (1975); People v. Kohlmeyer, 284 N. Y. 366, 31 N.E.2d 490 (1940).

A more serious obstacle is that the letters were not written during the course of treatment but were prepared for use in determining appellant’s sanity. Hospital records are considered trustworthy partially because they are routinely used to make decisions affecting the life and health of the patient. See, C. McCormick, Handbook of the Law of Evidence § 313 at 730 (2d. ed. E. Cleary 1972). A number of authorities feel that if the report is prepared for a purpose other than treatment this indicia of reliability disappears, especially if the report is prepared in anticipation of litigation. Consequently, these authorities have held the trial court possesses discretionary power to exclude reports which appear to be unreliable even though they satisfy the letter of the business record exception.

We need not decide, however, precisely what rules govern the admissibility of medical reports prepared for purposes other than treatment because the major objection to the admission of such records stems from the unavailability of the declarant for cross-examination. In the instant case Dr. McClelland was on the stand and available for cross-examination, thus we are unable to say the trial judge abused his discretion in admitting the records.

V Limitation on Cross-Examination of State’s Witness

There is no need for us to discuss this question as the record shows the witness did not know the information sought by the cross-examination.

VI Admissibility of Photographs Showing the Wounds of the Deceased

During the trial the State was allowed to introduce certain general pictures of the victim and his wounds. Appellant maintains that since she did not contest the commission of the crime the photographs had little, if any, probative value and were merely introduced to inflame the jury. Although the trial judge might have restricted the number of pictures admitted, the question of whether or not the pictures had any probative value or were inflammatory was within the discretion of the trial court. Eg., Sisk v. State, 232 Md. 155, 192 A. 2d 108 (1963); Cranford v. State, 36 Md. App. 393, 403, 373 A. 2d 984, 989 (1977); Carroll v. State, 11 Md. App. 412, 414, 274 A. 2d 677, 678-679, cert. denied, 262 Md. 745 (1971). The pictures did show the victim was appellant’s husband and thus tended to, prove the corpus delicti. We see no abuse of discretion here.

VII The Argument Concerning the Effect of a Recommendation of Mercy

Appellant argues that the judge should have complied with her request to instruct the jury that under Md. Rule 758 e their recommendation for mercy would not be binding on the trial court. She argues that the closing argument of the State’s Attorney left the jury with the impression that such an instruction would be binding. We have examined the argument carefully and do not see how the jury possibly could have been misled by the State’s Argument. The prosecutor simply informed the jury that if they desired, in view of the psychiatric testimony, to show mercy they could do so by making a recommendation of mercy to the trial judge. There was no suggestion in the argument that the recommendation would be binding; indeed, if it were a recommendation, by definition it could not be binding.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Montgomery County.

      . Most of the details of our recitation of the facts are based on appellant’s statement to the police officers. She did not testify at the trial.

      . We note, however, that the appellant waived any claim she might have had under the psychiatrist-patient privilege by introducing her mental condition as a defense. Bremer v. State, 18 Md. App. 291, 334, 307 A. 2d 503, 529, cert. denied, 269 Md. 755 (1973), cert. denied, 415 U. S. 930, 94 S. Ct. 1440, 39 L.Ed.2d 488 (1974); Md. Code, Cts. and Jud. Proc. Art. § 9-109 (e) (2) (1977 Supp.).
      The State argues that even if the attorney-client privilege has not been waived, the privilege cannot be asserted because the work product doctrine , is inapplicable. The work product doctrine, however, is separate from the attorney-client privilege and serves to protect materials from discovery that' are not subject to another privilege. See C. McCormick, Handbook of the Law of Evidence § 96 at 204-205 (2d. ed. E. Cleary 1972).

      . Some courts have analogized the function of a psychiatrist to that of an interpreter. See City & County of San Francisco v. Superior Court, 37 Cal. 2d 227, 231 P. 2d 26 (1951); Lindsay v. Lipson, 367 Mich. 1, 116 N.W.2d 60, 63 (1962).

      . In addition to the cases cited above, see, Jones v. Superior Court, 58 Cal. 2d 56, 372 P. 2d 919, 921-922 (1962); People v. Hilliker, 29 Mich. App. 543, 185 N.W.2d 831, 833 (1971); State v. Kociolek, 23 N. J. 400, 129 A. 2d 417, 423-425 (1957); F. Wharton, Criminal Evidence § 559 at 79 (13th ed. C. Torcia 1973); B. Jones, Evidence § 21:15 at 786 (6th ed. S. Gard 1972); C. McCormick, Handbook of the Law of Evidence § 91 at 188 n.82 (2d. ed. E. Cleary 1972). But see, Friedenthal, Discovery and Use of an Adverse Party’s Expert Information, 14 Stan. L. Rev. 455, 463-465 (1962). The privilege, however, does not apply where the psychiatrist is retained to treat the client rather than to assist the attorney in rendering legal advice. People v. Lines, supra, 531 P. 2d at 800-801 n. 12; City & County of San Francisco v. Superior Court, supra, 231 P. 2d at 31-32.

      . A similar provision is contained in Md. Code, Art. 59, § 25 (b) (1972 Repl. Vol.). Such a requirement has been upheld against attacks that it amounts to a perse violation of the accused’s right against self-incrimination. Bremer v. State, supra, n. 2, 18 Md. App. at 316-318, 307 A. 2d at 520-521.

      . Cf., Hall v. State, 36 Md. App. 362, 373 A. 2d 1250 (1977) (opinion of psychiatrist prepared in anticipation of litigation not discoverable under work product doctrine absent showing of exceptional circumstances).

      . The court in Smith also suggested that an examination by a defense psychiatrist shortly after the crime might be more valuable than a later examination by a State psychiatrist. There is, however, no evidence to suggest that the examinations by defense psychiatrists had more validity than the examination at the Springfield Hospital Center.

      . In light of our disposition of this issue, we need not discuss the subsidiary issue of whether the trial court erred in restricting cross-examination of Dr. Crowley concerning his contacts with the State’s Attorney.

      . The witnesses offered were a close friend of appellant, her son, and the family doctor. The son, a financial analyst, was allowed to testify, without objection, that the business was in a poor financial position, but was prohibited from further comment on the business absent some official record from the corporation indicating that he was officially in charge of the company’s books.
      The specific challenge made by appellant in regard to the son’s testimony concerned the admission of a series of uncashed checks payable to appellant which defense counsel offered through this witness to show the business was in poor financial condition. However, the probative value of this evidence in light of previous testimony concerning the business was so slight that we are unable to say the trial judge abused his discretion in refusing to admit it.

      . We do not mean to say that the trial judge must review all such evidence before ruling on its admissibility. However, where a proper foundation has been laid and the evidence would otherwise be relevant, a viewing of the tape would be necessary to a proper exercise of discretion unless the evidence is being rejected on the grounds that it is cumulative or it is apparent that the tape is objectionable for some other reason.

      . The letters would, however, have been admissible as part of an official record. This exception is codified in Md. Code, Cts. and Jud. Proc. Article § 10-204 (1974) and is designed to cover all governmental agencies. Harrod v. State, 39 Md. App. 230. 242, n. 13. 384 A. 2d 753, 761, n. 13 (1978).

      . Prior to the adoption of the Federal Rules of Evidence for United States Courts and Magistrates (Effective July 1, 1975) a number of federal courts also refused to admit diagnostic statements. See e.g., New York Life Ins. Co. v. Taylor, 147 F. 2d 297 (D.C. Cir. 1945). Under the federal rules, however, reports of “acts, events, conditions, opinions or diagnoses____” may be admitted. Rule 803 (6).

      . See Raycraft v. Duluth, Missabe and Iron Range Railway Co., 472 F. 2d 27, 30-31 (8th Cir.. 1973); Picker X-Ray Corp. v. Frerker, 405 F. 2d 916, 923-924 (8th Cir. 1969); Korte v. New York, N.H. and H.R. Co., 191 F. 2d 86, 90 (2d. Cir. 1951), cert. denied, 342 U. S. 868, 72 S. Ct. 108, 96 L. Ed. 652; Yates v. Bair Transport, Inc., 249 F. Supp. 681, 690 (S.D. N.Y. 1965). See also, Palmer v. Hoffman, 318 U. S. 109, 63 S. Ct. 477, 87 L. Ed. 645 (1943). But c.f., Otney v. United States, 340 F. 2d 696, 700 (10th Cir. 1965) (written psychiatric report made for purpose of determining whether criminal defendant was sane at. the time of the offense held not to be within regular course of hospital business).

      . Effective July 1, 1977, Rule 758 e is now covered by Md. Rule 759 f.


author: Morton, J.,

text:
    JOHN BRADLEY SYDNOR v. STATE OF MARYLAND
    [No. 963,
    September Term, 1977.]

      Decided June 7, 1978.

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

      Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      F. Ford Loker, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Arthur A.

      Marshall, Jr., State’s Attorney for Prince George’s County, and Leonard Casalino, Assistant State's Attorney for Prince George’s County, on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

Appellant, John Bradley Sydnor, was convicted by a jury in the Circuit Court for Prince George’s County (Couch, J., presiding) of first degree murder, first degree rape and first degree sexual offense. The court merged the rape conviction with the murder conviction and sentenced appellant to consecutive terms of life imprisonment for the murder and sexual offense convictions.

Appellant contends that the trial judge erred (1) in refusing to grant his motion to suppress certain out-of-court statements he had made to the police and (2) in instructing the jury on the felony murder statute which he asserts is inapplicable to his case.

The record reveals that on the morning of November 6, 1976, Kathleen Sebastian was discovered dead on a parking lot behind a church in Prince George’s County. She had been the victim of rape and a sexual offense in addition to having been severely mutilated. On the next day her abandoned car was found on a parking lot in a nearby apartment complex.

Joy Deaton, a resident of the apartment complex and former girlfriend of appellant, had been with appellant and the deceased on the night of November 5 at a local restaurant. Ms. Deaton subsequently left the restaurant alone. When she awoke on November 6 she discovered appellant asleep in her apartment. His clothing was in disarray and a large grass stain was visible on the knees of his trousers.

This information was subsequently relayed to Corporals M. K. Morrissette and T. R. Tucker of the Prince George’s County Police Department who were investigating the death of Ms. Sebastian. Tests were performed on appellant’s trousers and the victim’s car. It was determined that a large stain discovered around the crotch of the trousers was semen and that the fingerprints found on the car matched those of appellant. Also, a zodiac medallion found near the body was determined to contain appellant’s birth sign and Ms. Deaton identified the medallion as belonging to appellant.

On December 1, 1976, armed with the foregoing information, Morrissette and Tucker left Prince George’s County and proceeded to Hollywood, Maryland, in St. Mary’s County where appellant was believed to be staying with his father. They neither sought nor obtained an arrest warrant nor were they accompanied by a police officer of St. Mary’s County.

Morrissette and Tucker arrived at the home of appellant’s father in an unmarked police car. While Morrissette spoke to appellant’s father, Tucker identified himself to appellant. He told appellant that he wanted to speak to him concerning the death of Kathleen Sebastian. He then requested appellant to accompany the officers back to Prince George’s County. Appellant agreed and, after carrying some packages from his father’s truck into the house, got into the back seat of the police car. On the ride to Prince George’s County, Tucker advised appellant of his rights under Miranda v. Arizona, 384 U. S. 436 (1966), and briefly described the information the police had obtained in the case thus far. Morrissette did not speak to appellant.

Upon arriving at the police station in Prince George’s County, Morrissette identified himself and interviewed appellant. After reviewing with appellant all of the information that had been assembled, Morrissette asked appellant if he had any knowledge concerning the death of Kathleen Sebastian. Appellant indicated that he did. Morrissette had appellant read and sign a waiver of rights form after which he took appellant’s statement. Appellant described having had intercourse with Ms. Sebastian on the night in question and thereafter running over her with her car. It was this statement that was the object of appellant’s unsuccessful motion to suppress.

Appellant first contends “that the action of the two police officers in taking him into custody in St. Mary’s County constituted an arrest,” one that they were not empowered to make since they were police officers of Prince George’s County. Appellant posits that his confession, being the fruit of the alleged illegal arrest, should have been suppressed. Wong Sun v. United States, 371 U. S. 471 (1963); Ryon v. State, 29 Md. App. 62 (1975), aff’d 278 Md. 302 (1976). Appellant does not argue that his confession was involuntary or unreliable, but only that it was the product of an improper arrest. We do not agree.

In Bouldin v. State, 276 Md. 511 (1976), the Court of Appeals articulated what actions and intentions were necessary in order for an arrest to be'manifested. At pages 515-16, the Court stated:

“It is generally recognized that an arrest is the taking, seizing, or detaining of the person of another (1) by touching or putting hands on him; (2) or by any act that indicates an intention to take him into custody and that subjects him to the actual control and will of the person making the arrest; or (3) by the consent of the person to be arrested. 5 Am.Jur.2d Arrest § 1 (1962). It is said that four elements must ordinarily coalesce to constitute a legal arrest: (1) an intent to arrest; (2) under a real or pretended authority; (3) accompanied by a seizure or detention of the person; and (4) which is understood by the person arrested. 6A C.J.S. Arrest § 42 (1975); Creamer, The Law of Arrest, Search and Seizure, ch. 3, at 49 (1968).
We have defined an arrest in general terms as the detention of a known or suspected offender for the purpose of prosecuting him for a crime. McChan v. State, 238 Md. 149, 207 A. 2d 632 (1965); Cornish v. State, 215 Md. 64, 137 A. 2d 170 (1957). Our cases make clear, as McChan states, that in ordinary circumstances ‘there is a detention only when there is a touching by the arrestor or when the arrestee is told that he is under arrest and submits [but] [w]here there is no touching, the intention of the arrestor and the understanding of the arrestee are determinative, for in order for there to be an arrest in such case, there must always be an intent on the part of one to arrest the other and an intent on the part of such other to submit.’ 238 Md. at 157. Ordinarily, therefore, there can be no arrest where there is no restraint or where the person sought to be arrested is not conscious of any restraint.”

As appellant does not claim that Morrissette and Tucker “touched” him in St. Mary’s County or that he was ever explicitly informed that he was under arrest, our inquiry therefore focuses on the intentions and understandings of the parties when appellant was approached by the police officers at his father’s house, entered the police car and returned to Prince George’s County.

Tucker testified at the suppression hearing that an arrest warrant was not obtained for appellant prior to the encounter in St. Mary’s County because he and Morrissette had no intention of arresting appellant. They simply viewed the journey to St. Mary’s County as the next logical step in their investigation, not as its culmination. Moreover, Morrissette testified that had appellant refused to accompany him and Tucker to Prince George’s County, they would have respected his wishes and would not have forced him to comply with their request. Had appellant so refused, Morrissette stated that he would have left the premises, obtained an arrest warrant and returned with the proper authorities from St. Mary’s County to consummate the arrest.

We also find it significant that appellant, after being requested to accompany the police officers, was allowed to unload his father’s truck and carry packages into the house. Had Tucker and Morrissette intended to arrest appellant at this time, we think it unlikely that they would have let him enjoy such freedom of movement.

Appellant argues that the fact Tucker advised him of his Miranda rights while on the ride to Prince George’s County evidences Tucker’s intention to take him into custody. This Court, however, rejected such a proposition in Cummings v. State, 27 Md. App. 361, 376 (1975), when we stated that “the gratuitous and unnecessary giving of Miranda warnings ... [does not] operate to convert an otherwise non-custodial situation into a custodial one.” Nor do we feel, as does appellant, that the existence, vel non, of probable cause to arrest thereby automatically rendered Tucker's and Morrissette’s relations with appellant as an attempt to arrest. The mere right to arrest, without an outward manifestation of ian intent to effectuate that right, is not the equivalent of an arrest. Finally, we attribute weight to the fact that Tucker and Morrissette did not employ any physical restraint on appellant. Cummings v. State, supra at 375.

Thus, we conclude that the trial judge was not clearly erroneous in his implicit determination at the suppression hearing that an arrest had not been effectuated at the house of appellant’s father since appellant willingly returned with the police officers to Prince George’s County. Combs v. State, 237 Md. 428, 436 (1965). Hence, appellant’s contention that the confession was inadmissible because it was the product of an illegal arrest falls of its own weight.

Appellant next contends that the jury should not have been instructed as to the felony murder statute, Maryland Code, art. 27, § 410, since the crime for which he was convicted, first degree rape, was not one of the felonies enumerated therein on November 6, 1976, the date the crime was committed. At that time § 410 stated that “[a]ll murder which shall be committed in the perpetration of ... any rape ... shall be murder in the first degree.” In support of his position, appellant points out that § .410 was amended, effective July 1, 1977, to include “any rape in any degree,” rather than simply “any rape.” Appellant proffers that this amendment “was an implicit recognition that the felony murder statute was not applicable to first or second degree rapes committed between the effective date of the new rape statute (July 1, 1976) and the amendment of the felony murder statute (July 1, 1977).” We disagree.

“The cardinal rule in the construction of statutes is to effectuate the real and actual intention of the Legislature---- Of course, a statute should be construed according to the ordinary and natural import of its language, since it is the language of the statute which constitutes the primary source for determining the legislative intent----Thus, where statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view towards making the statute express an intention which is different from its plain meaning.” State v. Fabritz, 276 Md. 416, 421-22 (1975).

We think it is beyond dispute that the natural import of the phrase “any rape,” as employed in § 410 before the amendment, encompassed all rapes of various degrees.

Nor are we persuaded by appellant’s argument that the amendment to “any rape in any degree” evidences an implicit recognition on the part of the legislature that the old § 410 did not embody all of the various classes of rape created by § 462. While the Maryland General Assembly did not elucidate their motives in enacting the amendment to § 410, we observe that “[w]here a former statute is amended, or a doubtful meaning of a former statute rendered certain by subsequent legislation a number of courts have held that such amendment or subsequent legislation is strong evidence of what the legislature intended by the first statute.” Connolley v. Collier, 39 Md. App. (1978), quoting 2A, Sutherland, Statutes and Statutory Construction, § 49.11 (Sands ed. 1973). Here, the legislature merely sought to avoid the* very controversy that we are presently confronting by simply clarifying § 410. In essence, we view the amendment as a mere technical, rather than substantive, change to the felony murder statute.

Judgments affirmed; costs to be paid by appellant.

      . See Maryland Code, art. 27, § 462, (Laws of Maryland, 1976, ch. 573, effective July 1,1976). Prior to the enactment of this law, the crime of rape with an unconsenting female existed only at common law in Maryland and was not divided into various degrees.


author:
Gilbert, C. J.,
      Moore, J.,

text:
    THE AUGUSTA BUILDING AND LOAN ASSOCIATION, INC. et al. v. STATE OF MARYLAND COMMISSION ON HUMAN RELATIONS VERMONT FEDERAL SAVINGS AND LOAN ASSOCIATION et al. v. STATE OF MARYLAND COMMISSION ON HUMAN RELATIONS
    [No. 1046,
    September Term, 1977.]
    [No. 1047,
    September Term, 1977.]

      Decided April 28, 1978.

      Refiled as reported June 7, 1978.

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

      Betsy G. Cunningham, with whom were William C. Rogers, Jr., and John Paul Rogers on the brief, for appellants.

      RisselleR. Fleisher, Assistant General Counsel, with whom were George A. Shehan, General Counsel, and W. Stan wood Whiting, Assistant General Counsel, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court. Moore, J., concurs and filed a concurring opinion at page 471 infra.

These cases, consolidated on appeal by order of this Court, arise from the September 9,1977, orders of the Circuit Court of Baltimore City (Sullivan, J.) that the appellants, The Augusta Building and Loan Association, Inc. (Augusta) and Vermont Federal Savings and Loan Association (Vermont) comply with the subpoenas duces tecum served upon the respective appellants on March 11 and 9, 1977, by the State of Maryland Commission on Human Relations (the Commission).

From the sparse record before us, we glean that on August 5, 1976, four (4) members of the Commission executed near-duplicate complaints against Augusta and Vermont. In pertinent part, the complaints charged:

“The ... [appellants are] subject to the jurisdiction of the Maryland Commission on Human Relations. Acting in accordance with Section 12 (b) of Article 49B of the Annotated Code of Maryland, the Commission finds there is evidence to support an allegation that the ... [appellants utilize] standards, terms, or conditions, with regard to hiring, recruitment; job assignment and promotional policies, which have a disparate effect on Blacks and women.
The Commission, therefore, has reason to believe that the ... [appellants have] engaged in unlawful employment practices which have resulted in the exclusion of minority group persons because of their race and sex in violation of Article 49B of the Annotated Code of Maryland.”

The complaints, accompanied by letters dated October 1,1976, were received by the appellants “[o]n or about October 6, 1976... ”

As we have noted, the Commission served each of the appellants with a subpoena duces tecum “[i]n accordance with the authority contained in Article 49B, Section 14 (d) of the Annotated Code of Maryland,” commanding the production of any and all records, documents, requisitions, memoranda and other writings pertaining to the employment practices of the appellants for the period of January 1,1976, to December 31, 1976. Augusta and Vermont refused to produce the subpoenaed materials.

The Commission, seemingly of the belief that “[s]ince authority is the oldest means of persuasion known to man, it is also the most universally effective,” pursuant to Md. Ann. Code art. 49B, § 14 (d), filed in the circuit court petitions “For Order Directing Production of Documents” against Augusta and Vermont. Separate hearings were held on each case on September 7, 1977. Two (2) days later, the court ordered Augusta and Vermont to “produce all documents and things specified in the” subpoenas duces tecum at the Commission’s offices within fifteen (15) days of the court’s order. Dissatisfied by Judge Sullivan’s decision, Augusta and Vermont have brought their cause to this Court. They shall, however, fare no better than they did in the circuit court.

The appellants present four (4) questions which variously attack the statutory authority of the Commission to issue subpoenas duces tecum on the basis of allegedly defective complaints and supposedly prior to the conducting of properly authorized preliminary investigations. Md. Ann. Code art. 49B, § 12 (b).

All the appellants’ questions and supporting arguments were sunk on the shoals of Banach v. State of Maryland Comm’n on Human Relations, 271 Md. 502, 512-13 (1976), where the Court, speaking through Judge Levine, held “that the Human Relations Commission possesses statutory authority to issue a subpoena duces tecum in connection with a preliminary investigation under Art. 49B, § 12 (b).” (Emphasis supplied.)

The same day that Banach was filed, the Court handed down its opinion in Soley v. State of Maryland Comm’n on Human Relations, 277 Md. 521 (1976). In Soley, the Court reiterated “that the commission possesses statutory authority to issue a subpoena duces tecum while conducting a preliminary investigation under Art. 49B, § 12 (b).” (Emphasis supplied.) 277 Md. at 524. Furthermore, the Court extended its Banach holding to encompass Md. Ann. Code art. 49B, § 13(a) by flatly declaring, “We hold . . . that the Human Relations Commission possesses statutory authority to issue a subpoena duces tecum during an investigation. . . .” 277 Md. at 525.

It is patent from Banach and Soley, as well as the language of Md. Ann. Code art. 49B, § 12 (b), that the authorization by the Commission’s chairman or vice-chairman of a preliminary investigation, not the subsequent filing of a Commission complaint, is the sine qua non for the issuance of a valid subpoena duces tecum. Any alleged defects in the complaints in this case, which were filed after the initiation of the preliminary investigations, are irrelevant to the validity of the properly executed subpoenas duces tecum. The “contention that the subpoena power is limited to the post-complaint investigation and hearing stages finds no support in the language of” Md. Ann. Code art. 49B, § 14 (d) which empowers the Commission to issue subpoenas. Banach v. State of Maryland Comm’n on Human Relations, 277 Md. at 509.

In addition to their assault upon the allegedly defective Commission complaints, Augusta and Vermont question whether the Commission may “validly issue and compel compliance with a subpoena duces tecum prior to conducting a properly authorized preliminary investigation as required by § 12 (b) of Article 49B of the Annotated Code of Maryland?” The appellants put the cart before the horse. It is apparent from Banach and Soley that the conduct or completion of the preliminary investigation is not a condition precedent for the issuance of Commission subpoenas. The preliminary investigation need only be authorized by the Coipmission chairman or vice-chairman under Md. Ann. Code art. 49B, § 12 (b) in order for valid subpoenas duces tecum to issue. Although the Commission enjoys considerable discretion in authorizing the issuance of subpoenas duces tecum pursuant to a properly authorized preliminary investigation, “[t]hat the Legislature may validly confer upon administrative agencies such as the Human Relations Commission the power to compel production of information for purposes of preliminary investigation is well settled.” Banach r. State of Maryland Comm’n on Human Relations, 277 Md. at 507.

Augusta and Vermont have failed to produce so much as a single gossamer of evidence that preliminary investigations were not authorized or conducted by the Commission. Indeed, the Commission’s complaints and sworn petitions filed in the circuit court alleging the Commission’s receipt of reliable information and the conduct of preliminary investigations of Augusta and Vermont evidences that preliminary investigations were approved and executed. Moreover, Judge Sullivan, in the Vermont hearing, found as a fact that a preliminary investigation had been conducted. We are unable to conclude from the record that Judge Sullivan’s finding was clearly erroneous. Md. Rule 1086.

As to the Augusta hearing, the question of the authorization and conduct of a preliminary investigation was not plainly raised or decided in the hearing court. The matter is not properly preserved for our review. Md. Rule 1085. Even if the matter were considered to have been implicitly decided by the court, we would be unable to state, on the basis of the record before us, that the court was clearly erroneous. Md. Rule 1086.

Judgments affirmed.

Costs to be paid by appellants.

Moore, J.,

concurring:

I concur in the result reached in the opinion of the majority of the panel.

In my view, however, the Order appealed from is not a “final judgment” within the meaning of Cts. & Jud. Proc. Art. 12-301 or Art. 41, § 256 and, therefore, the appeal should be dismissed.

      . House Bill 1344, would amend Md. Ann. Code art. 49B, § 12, by renumbering it as § 9 and changing the approval of the number of Commissioners required to file a complaint from the current four (4) to three (3).

      . R. Oliver, R. Cortright and C. Hager, The New Training for Effective Speech 358 (1946).

      . Md. Ann. Code art. 49B, § 14 (d) provides in pertinent part:
      “In case of disobedience to a subpoena, the Commission may apply to a circuit court in any county or to a court of appropriate jurisdiction in the Supreme Bench of Baltimore City for an order requiring the attendance and testimony of witnesses and the production of books, papers, records, and documents [T]he court' may issue an order requiring the attendance and testimony of the witness and the production of the books, papers, records and documents. Any failure to obey such an order of the court may be punished by the court as a contempt thereof.”

      . Md. Ann. Code art. 49B, § 12 (b) provides:
      “Whenever the Commission has received reliable information from any individual or individuals that any person has been engaged or is engaged in any discriminatory practice within the scope of this article, and after a preliminary investigation by the Commission’s staff authorized by the chairman or vice-chairman it is satisfied that said information warrants the filing of a complaint, the Commission, on its own motion, and by action of not less than four commissioners, may issue a complaint in its name in the same manner as if the complaint had been filed by an individual.” (Emphasis supplied.) But see n. 1, supra.


text:
    IN RE REPORT OF GRAND JURY OF CARROLL COUNTY, November Term, 1976
    [No. 1007,
    September Term, 1977.]

      Decided June 8, 1978.

    The cause was argued before Thompson, Davidson and Mason, JJ.

      Jacob Yosef Miliman for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Thomas E. Hickman, State’s Attorney for Carroll County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

In this appeal we are asked to determine whether a grand jury has the power to report publicly specific instances of non-criminal misconduct of public officials. We determine that they do not and shall reverse.

The grand jury impaneled in the Circuit Court for Carroll County for its 1976 November Term included the following in its report:

“The Grand Jury has heard testimony concerning an investigation of allegations of impropriety on the part of employees of the Board of Education. Three employees were indicted by our predecessor and each has entered a plea of guilty to a felony prior to our meeting. The State’s Attorney has apprised us of the fact that there were many rumors and allegations made prior to and during this investigation which was commenced at the request of the Board of Education. It appears to us now that what occurred was a remarkable incidence of mismanagement in the administration of Dr. Furno, Assistant Superintendent for Administration during the period 1972 to 1976. As examples we cite the following:

“In 1974 it came to light that a high school gymnasium floor and an elementary school gymnasium floor were in need of repair. The testimony we have heard indicates that these two floors could have been repaired at a combined cost of less than $3000.00. Dr. Furno, in spite of being informed of this fact by those in the employ of the School Board supervising school construction, ordered these floors replaced rather than repaired. He went about having this done contrary to bidding procedures established by the School Board. The final cost of this needless expense was a total of $37,823.10, of the money of the taxpayers of this County.

“During the 1973-1975 school years when an ‘austerity’ program was in effect in the school system due to a shortage of funds, teachers were short of instructional materials in the school system. The financial records of the Board of Education during this same period of time reflect that Dr. Furno purchased several hundred dollars of books for his personal use, paid for by the Board of Education. If these books concerned the areas of school administration in which he was involved this would be understandable. They did not. Their titles are self explanatory and we recount several here: I Fought With Gerónimo; Isleta Paintings; A Selection of Some of the Most Interesting Narratives of Outrages Committed by the Indians in their Wars with the White People; The Law in America and Great Crimes and Trials; Patton; Authentic Story of the Totem Pole Monuments in Cedar; Minerals Yearbook, Volume III

“In September of 1975, the Director of Finance of the Board of Education called to the attention of Dr. Furno the fact that approximately $80,000.00 of School Funds provided by the State and Federal Governments had been misallocated by the County into areas other than food funds, the area for which they were specifically provided. Use of these funds for anything other than food for school children jeopardized hundreds of thousands of dollars in State and Federal funds allocated to Carroll County and the Board of Education. The remedy was a simple change in the records of allocations, with plénty of time for change since the school year had just begun. Dr. Furno advised that he would take care of the situation. More than six months later an investigator of the State’s Attorney found these funds, still misallocated. Fortunately sufficient funds and time remained in the fiscal year to make the adjustment without the forfeiture or penalties due to mismanagement.

“Although there were other problems existant the above is a sufficient illustration.” The report concluded by recommending eight changes in the financial procedures of the Board of Education.

Dr. Furno filed a petition in the Circuit Court for Carroll County requesting that all references to him be expunged from the report. The court refused the request, ruling that the report was proper, based on In re Presentment of Special Grand Jury Impaneled January, 1969, 315 F. Supp. 662 (D. Md. 1970). In making its ruling the court declined to follow the decision of the Court of Appeals in In re Report of Grand Jury, 152 Md. 616, 137 A. 370 (1927), concluding it would no longer be followed.

In In re Report of Grand Jury, supra, a case strikingly similar to the present case, the Court expunged specific references to public officials concerning their inept handling of the construction of a high school. After reviewing the history of the grand jury and its powers the Court delineated its function, stating:

“The function of the grand jury is to investigate violations of the criminal law, and in performing this function their inquisitorial powers are unlimited. If, however, having exercised these powers in any given case, there is lacking sufficient evidence to indict, their duty in that particular case ceases, and, under their oath, nothing transpiring within their body should be made public. It is apparent that this should be so, for the protection of the good name and reputation of the people, otherwise a condition would exist which the establishment and zealous maintenance of the grand jury was intended to prevent, namely, that of having an individual publicly charged with misconduct without probable cause. If there is sufficient evidence of the commission of a crime, it is the duty of the grand jury to indict, that is, to take such action as will bring the party to trial; if there is not, the citizens are and should be protected against accusations by that body which do not mount up to a criminal offense. The custom and practice, hereinbefore referred to, of grand juries in this state, in their reports, commenting on or condemning general conditions which they believe to exist, and pointing out what in their judgment is the remedy, can do no harm, and in many cases substantial good to the community may follow, for the reason that recommendations of the grand jury carry with them great weight in the mind of the public; but when they go beyond this, and condemn the acts and impugn the motives of public officials or private citizens, the law and sound public policy forbid. The report here under consideration exceeds the legitimate powers of the grand jury and is calculated to injure the reputation of the individuals named or inferentially included therein. It charges the commission of no crime, and its only effect can be to arraign certain public officials as having been guilty of real or fancied misconduct in the administration of their public duties.” Id. at 631-632.

The approach taken in In re Report of Grand Jury concerning the power to report on non-criminal conduct of public officials has been criticized as being based on an unduly restrictive limitation of the common law powers of grand juries. See Kuh, The Grand Jury “Presentment”: Foul Blow or Fair Play?, 55 Col. L. Rev. 1103 (1955). Other courts considering the question have concluded that the powers of the grand jury include the power to issue presentments or reports on the actions of public officials even though no indictment is returned and the actions do not constitute a crime. See United States v. Cox, 342 F. 2d 167, 186-189 (5th Cir.) (Wisdom J. concurring) cert. denied, 381 U. S. 935, 85 S. Ct. 1767, 14 L.Ed.2d 700 (1965); In re Jordan, 439 F. Supp. 199, 204-205 (S.D. W. Ya. 1977); In re Presentment of Special Grand Jury Impaneled January 1969, supra; In re Presentment by Camden County Grand Jury, 10 N. J. 23, 89 A. 2d 416 (1952). See, The Grand Jury as an Investigating Body, 74 Harv. L. Rev. 590 (1961). Under these authorities, however, a trial court would not automatically release all such reports to the public. Rather, once such a report is made the court has the responsibility of determining whether all of the matters it contains should be disclosed. In re Jordan, supra at 205. In so doing:

“The Court is the agency which must weigh in each case the various interests involved, including the right of the public to know and the rights of the persons mentioned in the presentment, whether they are charged or not. The Court should regulate the amount of disclosure, to be sure that it is no greater than is required by the public ‘interest in knowing’ when weighed against the rights of the persons mentioned in the presentment.” In re Presentment of Special Grand Jury Impaneled January, 1969, supra at 678.

Despite the State’s request that we adopt the rationale of these latter cases, we cannot ignore the rule laid down in In re Reporto! Grand Jury, supra. We think this decision strikes the proper balance between the rights of the public and the individual. By permitting the grand jury to make recommendations designed to correct undesirable situations, the public’s right to be informed is vindicated. At the same time, the prohibition of specific reference to public officials by name or office protects them from being publicly condemned without an effective means of reply. We note that a number of other jurisdictions that have considered the question in recent years continue to follow an approach similar to that adopted by the Court of Appeals of Maryland. See Harris v. Edmonds, 119 Ga. App. 305, 166 S.E.2d 909 (1969); In re Brevard County Grand Jury Interim Report, 249 So. 2d 709 (Fla. App. 1971); In re Davis, 257 So. 2d 884 (Miss. 1972); In re Report of Grand Jury, 123 Utah 458, 260 P. 2d 521 (1953); See also Hammond v. Brown, 323 F. Supp. 326, 343-346 (N.D. Ohio), aff'd. 450 F. 2d 480 (6th Cir. 1971).

Unfortunately, the relief we grant appellant is a hollow victory as the grand jury report has already been published in the local newspapers. In light of the decision of the Court of Appeals in In re Grand Jury Report, supra, the lower court should not have accepted and released the report containing appellant’s name but should have directed the grand jury to amend its report in accordance with that opinion.

Order reversed.

Quoted portion of grand jury report stricken.

Costs to be paid by Carroll County.

      . We have republished the damaging portions of the report to illustrate the type of report a trial court should refuse to accept. We are advised that Dr. Pumo has already lost his job and is working in another position; thus further damage from the publications seems unlikely to occur.


text:
    LARRY TYRONE CARR v. STATE OF MARYLAND
    [No. 1015,
    September Term, 1977.]

      Decided June 8, 1978.

    The cause was argued before Thompson, Davidson and Mason, JJ.

      Jonathan A. Azrael, Assigned Public Defender, for appellant.

      W Timothy Finan, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Joseph Fleischmann, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

The appellant, Larry Tyrone Carr, was convicted by a jury in the Criminal Court of Baltimore of assault with intent to murder, robbery with a deadly weapon, and use of a handgun in the commission of a crime of violence. Concurrent terms of 15, 20, and 5 years, respectively, were imposed on the charges. On appeal two questions are presented for our determination: (1) whether appellant was entitled to inspect a prior written statement of a state witness for use in cross-examination; and (2) whether the trial judge should have granted a new trial on the basis of a post trial recantation by a State’s witness.

I The Facts

During the early morning hours of May 27, 1975, Kirk McCall, Raymond Oliver, and Larry Lewis were on their way to purchase some narcotics when McCall was robbed and shot. McCall testified that after he and his companions decided to purchase the narcotics, McCall went home to obtain the necessary funds. When he rejoined his friends appellant was present and Oliver informed McCall that appellant would supply the narcotics. McCall gave sixty-five dollars to Oliver who gave it to appellant. The group then proceeded to procure the drugs. After they had been walking for approximately 15 minutes, McCall became disenchanted and asked for the return of his money. Appellant complied but as McCall turned to leave appellant produced a weapon and demanded the money. McCall, who had a cane in his hand, turned and struck appellant in the face. As McCall turned to run appellant shot him in the back, took the money from the victim’s pocket, and fled.

Although appellant, who was arrested two months after the crimes were committed, could not remember where he was at the time, he testified that he was not with McCall. To support this claim he produced two witnesses, Norman Johnson and Marion Harris. Johnson’s house was less than one-half block away from the location of the crimes, and on the night in question Johnson, Harris, and a few other friends were talking in front of Johnson’s house. At approximately 12:30 a.m. McCall and another person, who neither Johnson nor Harris knew, stopped on their way down the street and conversed for a short period of time. About a minute and a half after McCall and his companion had left, Johnson heard a shot. He turned and saw McCall lying in the street. Seconds later the man who had accompanied McCall was standing over him. At no time, either before or after the shooting, did Johnson or Harris see appellant.

II Production of Oliver’s Prior Statement

McCall testified he did not know Johnson or Harris and had not stopped to talk to them on the night of the shooting. To corroborate his testimony the State called Oliver. His version of the shooting was essentially the same as McCall’s although it did differ in unimportant details. During cross-examination of Oliver the defense elicited that he had given a prior written statement to the police. Defense counsel attempted to question Oliver about the details of the statement but the State objected and the trial judge ruled that if counsel wanted to use the statement, he would have to quote from it. Defense counsel responded by stating that although he had information as to the statement’s contents, he did not have a copy. When he asked the court to require production of the statement the court refused ruling appellant was entitled to the statement only if it were exculpatory; and he was not entitled to the statement if it were only inconsistent. The court did note that the prosecutor could voluntarily furnish counsel with a copy but the prosecutor refused commenting, “It’s too late for that crap.”

In arguing that the trial judge erred in refusing to require production of Oliver’s statement, appellant asks this Court to hold that an accused is entitled, as a matter of right, to the prior statements of State witnesses after they have testified on direct examination. Essentially this is the rule adopted by the Supreme Court in Jencks v. United States, 353 U. S. 657, 77 S. Ct. 1007, 1 L.Ed.2d 1103 (1957). The Supreme Court’s decision in Jencks was based on its supervisory powers over the federal courts and is applicable only to federal criminal prosecutions. See Palermo v. United States, 360 U. S. 343, 345, 79 S. Ct. 1217, 1221, 3 L.Ed.2d 1287 (1959). While automatic disclosure is not constitutionally required, a number of jurisdictions recognize the right of an accused to inspect the statement of a prosecution witness for purposes of cross-examination or impeachment. This rule has been adopted by judicial decision, See Annot. 7 A.L.R.3d 181 (1966), by statute, See Alaska Stat. § 12.45.060 (1977); Ark. Stat. Ann. § 43-2011.3 (b) (1977 Repl. Vol.); Kan. Crim. Code and Code of Crim. Proc. § 22-3213 (2) (1974); Tenn. Code Ann. § 40-2446 (1977 Supp.), or by rule, See Haw. R. Cr. P. 17 (h); Ky. R. Cr. P. 7.26 (1). An almost equal number of jurisdictions do not allow an accused to examine a prior statement of a prosecution witness as a matter of right. These jurisdictions generally recognize that the grant or denial of a request for production of a prior statement is within the sound discretion of the trial judge. See Annot. 7 A.L.R.3d 181, 198 (1966).

The Court of Appeals in McKenzie v. State, 236 Md. 597, 204 A. 2d 678 (1964) declined to adopt the rule urged by appellant here, holding instead that a request for the production of statements within the control of the State is within the discretion of the trial judge. Id., 236 Md. at 602, 204 A. 2d at 680-681. See also, Couser v. State, 282 Md. 125, MO, 383 A. 2d 389, 397 (1978); Veney v. State, 251 Md. 159, 165, 246 A. 2d 608, 612 (1968), cert. denied, 394 U. S. 948, 89 S. Ct. 1284 (1969). The requirement of a proper foundation was recognized in Couser v. State, supra, 282 Md. at 140, 383 A. 2d at 398, where the Court citing McKenzie noted “where inadequate reasons are assigned for disclosure, the request is properly denied as being in the nature of a ‘fishing expedition.’ ”

The precise foundation that needs to be laid before an appellate court will review the trial court’s denial of a request for production is a matter of some dispute. Some jurisdictions which do not allow an accused to examine the prior statement of a witness as a matter of right have a twofold requirement: (1) there must be a prior statement which is in control of the prosecution; and (2) the witness must deny having made, the statement or the accused must show it is inconsistent in some material respect with the witness’s testimony. See Cooks v. State, 50 Ala. App. 49, 276 So. 2d 634, 638, cert. denied, 290 Ala. 363, 276 So. 2d 640 (1973); State v. Lee, 311 So. 2d 876, 879 (La. 1975); Knowles v. State, 341 So. 2d 913, 916 (Miss. 1977). As it is often impossible, as a practical matter, for the accused to show a statement is inconsistent without knowing what it contains, a number of courts have criticized this requirement. See, e.g., State v. Tate, 294 N. C. 189, 239 S.E.2d 821, 825 (1978); State v. White, 15 Ohio St.2d 146, 239 N.E.2d 65, 73 (1968). These courts require that the trial judge, when requested by the accused, examine the statement in camera to see if it contains any inconsistencies.

In the instant case we need not decide what elements the accused is required to show before we would be willing to find an abuse of discretion, because under either test appellant failed to demonstrate he was entitled to the statement. Although defense counsel established that Oliver had made a prior written statement and the statement was in the possession of the prosecutor, he did not establish any material inconsistencies in Oliver’s testimony or request the trial judge to examine the statement. Consequently, we see no basis for finding the trial judge abused his discretion.

We think it is important to note that appellant was not prejudiced by the trial judge’s denial of his request. Prior to making the request for production, defense counsel acknowledged that he had “information as to what is contained in the statement.” After his request was denied, defense counsel proceeded to ask Oliver a number of questions in which he quoted from Oliver’s prior statement. In effect, defense counsel was able to cross-examine on the alleged inconsistencies even though he did not have the actual statement in his hands. We see no error.

Ill Motion for a New Trial

Following the finding of guilt by the jury, appellant moved for a new trial and produced an affidavit signed by Oliver stating that the testimony he gave at trial was false and was given “under the threat of persecution and arrest by the State’s Attorney’s Office. . . .” The trial judge took the affidavit into consideration but quite properly informed defense counsel it was his, and not the State’s, responsibility to produce Oliver if it was his desire that the court should hear the witness. Appellant now contends the trial judge erred. We disagree.

The standard for reviewing the propriety of the denial of a motion for a new trial was succinctly stated in Jones v. State, 16 Md. App. 472, 477, 298 A. 2d 483, 486, cert. denied, 268 Md. 750 (1973):

“It is, of course, well established that the granting or denial of a motion for a new trial lies within the sound discretion of the trial court and the action of the trial court upon such a motion will not be disturbed on appeal except under the most extraordinary and compelling reasons.”

In the instant case the trial judge received and considered Oliver’s affidavit but stated he did not consider it worthy of belief. In so stating the trial judge noted that Oliver’s trial testimony was consistent in all material respects to that of McCall even though he was sequestered during McCall’s testimony and was rigorously cross-examined. We note, as did the trial judge, that post-trial recantations of witnesses are looked on with the utmost suspicion. See, e.g., United States v. Johnson, 487 F. 2d 1278 (4th Cir. 1973). Under these circumstances we see no abuse of discretion. Unless it is all but certain that a new trial would be granted if the testimony were heard, a trial judge can refuse to hear witnesses on a motion for a new trial. Givner v. State, 208 Md. 1, 115 A. 2d 714 (1955). This applies even where the moving party has fully performed his duty to subpoena witnesses he desires the court to hear.

Judgments affirmed.

Costs to be paid by appellant.

      . Four justices concurring in Palermo did note that an accused’s sixth amendment rights were very close to the surface of the Court’s decision in Jencks. 360 U. S. at 362-363, 79 S. Ct. at 1229-1230. The Jencks Act (18 U.S.C. § 3500) now governs the question in federal courts.

      . The original annotation shows that a majority of jurisdictions follow the discretionary rule. When the cases cited in the supplement to the annotation and the statutory changes previously cited are considered, it appears that the jurisdictions following each rule are now approximately equal.

      . Although appellant argues that the trial judge did not state whether or not he believed the affidavit to be false, a reading of the exchange between court and counsel clearly indicates the trial judge did not believe Oliver’s recantation.