text:
    DONALD LEE HARRIS v. STATE OF MARYLAND
    [No. 799,
    September Term, 1978.]

      Decided April 17, 1979.

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

      Martha Weisheit, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Valerie A. Leonhart, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Richard D. Warren, State’s Attorney for Wicomico County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

On August 16,1978, the appellant, Donald Lee Harris, was convicted in the Circuit Court for Wicomico County of robbery with a deadly weapon, two counts of unlawful shooting, and kidnapping. He was sentenced to eighteen years under the robbery conviction, two consecutive five year sentences under the shooting convictions, and three years (suspended) under the kidnapping conviction.

This appeal presents the following issues:

1. Did the trial judge err in failing to establish on the record, as required by Md. Rule 735 d, that the appellant had knowingly and intelligently waived his right to trial by jury?
2. Did the trial judge err in admitting evidence, offered by the State in rebuttal, of a statement made by appellant while in police custody but before being brought before a commissioner pursuant to Md. District Rule 723?
3. Were two separate convictions and punishments for unlawful shooting improper under the facts of this case?

We will develop the necessary factual background as we address each of these issues.

I The Election of a Court Trial

Md. Rule 735 governs the procedure to be followed when an accused elects between trial by jury and trial by the court. In Biddle v. State, 40 Md. App. 399, 392 A. 2d 100 (1978), we held that compliance with the rule is mandatory and where the record fails to show such compliance a conviction must be reversed on direct appeal.

Section b of the rule provides that the election should be made in writing, signed by the defendant, witnessed by his counsel, and filed with the clerk of the court. A form for such written election is set out in the rule. The section b form informs a defendant that a jury consists of 12 persons and that all must be convinced of his guilt beyond a reasonable doubt before he may be found guilty. Section c provides that when no written election is filed the defendant may be required to appear in court for the purpose of making an election. Section d provides that when a court trial is elected the trial shall not commence until an inquiry is conducted on the record to determine whether the election has been made voluntarily and with full knowledge of the right to a jury trial. The obvious purpose of this in-court inquiry is to show affirmatively on the record that the defendant's constitutional right to a jury trial was voluntarily and knowingly waived. In cases where a written election has been filed pursuant to Section b, the inquiry mandated by section d requires an additional safeguard in the determination of the voluntariness and intelligence of the waiver. It requires the trial judge to determine whether the waiver apparent on the form is, in fact, knowing and voluntary.

In the present case we are concerned with the required scope and extent of the section d inquiry. More precisely, the question is whether the inquiry in the record before us was sufficient under Rule 735 d to enable a determination that the appellant voluntarily and knowingly waived his right to a jury trial. The resolution of this issue will be aided by a review of the recent cases in which we have interpreted Rule 735 d.

At one end of the spectrum are Biddle v. State, supra, and Butler v. State, 41 Md. App. 677, 398 A. 2d 514 (1979). In Biddle, the record was devoid of any indication that the defendant knew of his right to a jury trial or participated in the election of a court trial. It merely showed that defense counsel requested a court trial at the arraignment, in the defendant’s presence. We held that under those circumstances, there had been no compliance with the rule. The conviction was therefore reversed. In Butler, the defendant was originally charged in the District Court and the case was removed to the Circuit Court upon election of a jury trial. On the day of trial, defense counsel stated on the record that the defendant had waived his right to a jury trial and elected to be tried by the court. Nothing in the record showed whether the trial judge knew what had transpired in the District Court or whether the defendant had even been present when a jury trial was originally requested in the District Court. Nor was there any showing that he had been advised of his right to a jury trial or participated in the election of a court trial. In holding that Rule 735 d had been violated we said:

“It is evident here, as it was in Biddle, that the court made no effort whatever to comply with section d of Rule 735. It obviously made no inquiry of appellant on the record. Neither is there any indication in the record that the court knew what had transpired in the District Court. Accordingly, there was no basis upon which it could have reasonably concluded .that appellant had full knowledge of his right to a jury trial and that he was knowingly and voluntarily waiving that right.” Id. at 683.

In two other recent decisions we have examined and sustained the sufficiency of the Section d inquiry where no written election was previously filed by the defendant. In McCoy v. State, 41 Md. App. 667, 398 A. 2d 1244 (1979), the Court informed three co-defendants on the record that they had a right to a jury trial and asked what choice they wished to make. Defense counsel for one of the co-defendants, in the presence of all three, gave a brief explanation of the right to a jury trial along the lines mentioned in the section b form, but omitted any reference to the burden of proof. He then stated that his client elected a court trial. Counsel for each of the other two defendants also expressed their respective clients’ desire to elect a court trial. We held that this exchange constituted a sufficient basis for the conclusion that the elections were knowingly and voluntarily made.

In Fairbanks v. State, 42 Md. App. 15, 398 A. 2d 814 (1979), defense counsel volunteered that his client understood the nature of a jury trial, that he knew he had a right to such a trial, and that he wished to waive that right and be tried by the court. Counsel then asked his client whether that recital was correct and the defendant replied that it was. This was held to be sufficient compliance with Rule 735 d, although the record did not show that the defendant had been informed of the various incidents of a jury trial as spelled out in section b.

Finally, in Countess v. State, 41 Md. App. 649, 398 A. 2d 806 (1979), we held that the section d inquiry was required even where a written election under section b had been previously filed. Countess had elected a jury trial employing the form prescribed by section b of Rule 735. On the day of trial he sought to change his election. The court inquired whether the defendant understood that he had a right to a jury trial, whether such right had been fully explained to him by his lawyer, and whether he elected to be tried by the court instead of a jury. The defendant answered all of these inquiries in the affirmative. In holding that there had been compliance with Rule 735 d we said:

“The signed form and the in-court responses to questioning, show that the appellant made his election of a court trial with full knowledge of his right to a jury trial and that he knowingly and

voluntarily waived the right.” Id. at 658.

Several conclusions may be drawn from these decisions with respect to Rule 735 d. First, it is not necessary that the entire inquiry always be conducted on a person to person basis between the judge and the defendant. Statements by counsel in which the defendant has clearly acquiesced may be sufficient. McCoy v. State, supra. Second, it is not necessary to spell out the various aspects of a jury trial, such as the fact that all jurors must be convinced of the defendant’s guilt beyond a reasonable doubt before he can be convicted. It is sufficient that the record affirmatively show that the defendant knew that a jury trial was available, that he understood the general nature of a jury trial, and that he nevertheless chose to be tried by the court. Fairbanks v. State, supra, and McCoy, supra. Third, a written election under Rule 735 b does not obviate the necessity for compliance with section d. A written election may aid the court in determining the voluntariness and intelligence of the waiver but the mandatory in-court inquiry must still be made. Countess v. State, supra.

With these principles in mind we now turn to a consideration of the present case. Appellant filed a written election, as prescribed by Rule 735 b, to be tried before the court. Prior to commencement of the trial the following colloquy took place between the trial judge and defense counsel:

“The Court: ...
You have advised him of his right to a jury trial, Mr. Rogan?
Mr. Rogan: [Defense counsel]: Yes, Your Honor.
He pleads not guilty, Your Honor, and trial by the Court. The plea and election stand.
The Court: All right, sir.”

This is the only indication in the record that the trial judge made the inquiry called for under Rule 735 d. We hold that it does not constitute compliance with the Rule.

In McCoy, Countess and Fairbanks, the defendants themselves were informed on the record, either by the court or counsel, that they had a right to a jury trial. In each case there was some indication that the defendant understood the general nature of a jury trial. In Countess and Fairbanks the defendants affirmatively stated their desire to be tried by the court instead of a jury. In McCoy, the court began the necessary inquiry and counsel continued it by reciting their clients’ understanding of the right to a jury trial and desire to be tried by the court. We concluded that the defendants acquiesced in their counsels’ recital noting that they not only failed to object to, or contradict, any part of it but that they also expressed satisfaction with the services rendered by their counsel. 41 Md. App. at 674. We thought then, and we think now, that it should not be more difficult to waive a jury trial than it is to enter a guilty plea, and thus waive both a jury and a court trial. See Davis v. State, 278 Md. 103, 361 A. 2d 113 (1976).

In the present case, there is nothing in the record of the in-court inquiry to show that appellant understood his right to a jury trial or that his waiver was voluntary. The court’s inquiry was addressed to counsel and was limited to whether the appellant had been advised of his right to trial by a jury. Unlike Countess, supra, the court did not address the appellant and the appellant was given no opportunity to speak. There is no basis in this record for concluding that appellant acquiesced in a'ny on the record explanation by counsel, as in McCoy, supra, or that he affirmed the sort of recital shown in Fairbanks, supra.

The purpose of section d is to require the trial judge to determine on the record that the election of a court trial is knowing and voluntary. Such a determination must be made regardless of whether the section b form has been filed and serves to ensure the voluntariness and intelligence of the written waiver. The rule requires that the inquiry be made “of the defendant.” In the present case no such inquiry was made and the appellant was not given the opportunity to state whether he understood his right to a jury trial or whether he was voluntarily electing a court trial. We conclude, therefore, that the record fails to show compliance with Rule 735 d and the appellant’s conviction must be reversed. Biddle v. State, supra. For the guidance of the court on retrial we will address the remaining two issues.

II Delay in Presentment

Appellant was arrested on a charge of petty larceny at approximately 9:20 a.m., April 5, 1978. That charge was unrelated to those for which he was subsequently convicted in the present case. He was then taken to the police station where he was photographed and fingerprinted. At approximately 10:10 a.m. the arresting officer advised appellant of his rights and asked him whether he wished to make a statement in reference to the petty larceny charge. As appellant was also suspected of being involved in the robbery case the police arranged for him to participate in a lineup which took place from 10:30 to 10:40 a.m. The lineup was held on the third floor of the county courthouse building, across the street from the police station. Two witnesses identified appellant as one of the perpetrators of the robbery. He was then taken back to the police station so that an application for a warrant on the robbery charge could be prepared. At 11:08 he was again advised of his rights and asked whether he had anything to say about the robbery. A brief discussion ensued between appellant and the arresting officer which was unrelated to the crimes charged. Then, at about 11:30 a.m., appellant requested to speak to one Officer Bateman alone. During the course of his conversation with Officer Bateman appellant confessed to the crimes of which he was later convicted. The appellant’s statement was reduced to writing and signed by him by 1:05 p.m. At 1:45 p.m. he was presented before a commissioner for the first time on both the robbery and petty larceny charges. The commissioner had been available in the courthouse at all times since appellant’s arrest.

At the trial, appellant testified in his own defense. The State’s Attorney cross-examined appellant regarding his statement to Detective Bateman. Appellant denied making the statement. The State’s Attorney called Detective Bateman as a rebuttal witness to identify appellant’s written statement which was then introduced into evidence over defense objection.

Appellant contends that it was error to admit the statement because it was obtained during a period of unnecessary delay in presenting him before a commissioner as required under Rule 723 a. He relies on Johnson v. State, 282 Md. 314, 384 A. 2d 709 (1978). The State counters with a three-pronged argument. First, it contends that the per se exclusionary rule announced by the Court of Appeals in Johnson v. State, supra, should be given prospective application only. In the State’s view, Johnson should not be applied to statements obtained prior to April 6,1978, the date of its decision. It will be noted that the statement in this case was obtained the day before the Johnson decision was filed. Second, it is argued that there was no unnecessary delay in presentment in the present case and therefore no basis for exclusion of the statement. Third, the State argues that the exclusionary rule of Johnson does not apply when the State seeks to use the statement in question for impeachment purposes only.

We see no error in the trial court’s admission of appellant’s statement. Assuming arguendo that the rule in Johnson could be applied here, and that the delay involved in this case was unreasonable, we conclude that the use made by the State of appellant’s statement was permissible. In Johnson, supra, at 328-29, the Court of Appeals said:

“We therefore hold that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief.”

It is clear, therefore, that Johnson does not prohibit the use of such statements to impeach a defendant’s credibility once he has elected to testify in his own defense. On the other hand, it is also true that we have no direct authority permitting the use of a statement, obtained in violation of M.D.R. 723, for impeachment purposes. There are, however, analogous decisions which clearly support such a result. In Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971), the Supreme Court held that a defendant’s statement, inadmissible in the prosecution’s case-in-chief because of a failure to comply with Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), may be used for impeachment purposes if it is sufficiently trustworthy. See also, Oregon v. Hass, 420 U. S. 714, 95 S. Ct. 1215, 43 L.Ed.2d 570 (1975). The Court of Appeals adopted this exception to the exclusionary rule of Miranda in State v. Franklin, 281 Md. 51, 375 A. 2d 1116 (1977), cert. denied, 434 U. S. 1018, 98 S. Ct. 739, 54 L.Ed.2d 764 (1978). The rationale underlying Harris, Hass, and Franklin is that prohibiting the use of the statement for impeachment purposes would convert Miranda’s exclusionary rule into “a license to testify inconsistently, or even perjuriously, free from the risk of confrontation with prior inconsistent utterances.” Hass, supra, 420 U. S. at 722, 95 S. Ct. at 1221; Franklin, supra at 60. “Having voluntarily taken the stand, Franklin was under an obligation to speak truthfully and accurately, and the prosecution here, as in Harris and Hass, did no more than utilize the traditional truth-testing devices of the adversary process.” Franklin, supra at 60-61.

These same principles apply with equal force in the present case. There is no reason why the exclusionary rule of Johnson, supra, based as it is on M.D.R. 723, should protect a defendant from being impeached with his own inconsistent extrajudicial statement when the constitutionally based exclusionary rule of Miranda does not have such an effect. Appellant does not contend, and the record does not indicate, that his statement was other than voluntary. We see no error in its use for the purpose of impeaching appellant’s credibility.

Ill The Convictions for Unlawful Shooting

As appellant was escaping from the scene of the robbery he fired a total of four shots at two police officers who were attempting to apprehend him. On the basis of that conduct he was charged with two counts of assaulting the officers with intent to prevent his own lawful apprehension, in violation of Md Code, Article 27, § 386. One count was charged for'each officer so assaulted. Upon his conviction under these two counts appellant received two consecutive five year sentences. Appellant now contends that the unlawful shooting constituted a single incident and, consequently, separate punishments based on separate convictions were improper. In raising this point appellant has not concerned himself with matters of merger or double jeopardy, but only with statutory construction.

Although there is no case law addressing this precise issue with respect to Article 27, § 386, we note that there is much authority involving closely analogous situations. The Court of Appeals has held that assaults upon different victims, although arising out of the same transaction, are separate crimes. Cousins v. State, 277 Md. 383, 354 A. 2d 825, cert. denied, 429 U. S. 1027, 97 S. Ct. 652, 50 L.Ed.2d 631 (1976); Novak v. State, 139 Md. 538, 115 A. 853 (1921). Cousins is particularly apposite because of its factual similarity to the present case. There the defendant wielded a knife against two store detectives while escaping with stolen property. It was held that the defendant's acquittal on a charge of assaulting one of the detectives did not bar a subsequent prosecution for assault against the other detective because the two crimes were separate offenses. We also note that the crime of assault is closely analogous to the offenses proscribed in Article 27, § 386.

It is true that Cousins and Novak deal with principles of double jeopardy. Nevertheless, their value in the present case is that they demonstrate that assaults against multiple victims arising out of the same criminal incident are separate and distinct crimes. See also, Melville v. State, 10 Md. App. 118, 268 A. 2d 497, cert. denied, 259 Md. 729-734 (1970) and Jones v. State, 3 Md. App. 608, 240 A. 2d 347, cert. denied, 251 Md. 750 (1968); 394 U. S. 993, 89 S. Ct. 1484, 22 L.Ed.2d 769 (1969). In both of those cases the defendants were convicted on separate counts of assault against different victims arising out of the same criminal incident.

Appellant argues that we should interpret Article 27, § 386 so as not to authorize separate punishments for offenses arising out of a single transaction. He relies on Ladner v. United States, 358 U. S. 169, 79 S. Ct. 209, 3 L.Ed.2d 199 (1958) and Bell v. United States, 349 U. S. 81, 75 S. Ct. 620, 99 L. Ed. 905 (1955). In both of those cases federal statutes were involved which the Supreme Court found ambiguous with respect to whether multiple punishments could be imposed where the same incident affected more than one victim. In each case the Court relied on the rule of lenity and resolved the doubt in favor of the defendant.

In the present case there is no necessity for applying such a rule of statutory interpretation. As the cases cited above indicate, appellant committed separate violations of § 386 by shooting at the two officers who attempted to apprehend him. Having violated the statute more than once, appellant is subject to the imposition of its penalties for each violation.

We note further that Ladner v. United States, supra, relied upon by appellant, actually supports the decision which we have reached here. In that case the defendant had been convicted of two violations of a federal statute making it a crime to forcibly resist, oppose, impede, intimidate, or interfere with any designated federal officer while engaged in the performance of his duties. The conviction arose out of an incident in which the defendant fired a single shotgun blast into an automobile in which two federal officers were transporting an arrested prisoner. The Court refused to interpret the statute in question in such a way as to permit two convictions and sentences for the single act simply because more than one officer was involved. The Court also noted that the firing of more than one shot could have justified separate convictions and sentences. 358 U. S. at 178, 79 S. Ct. at 214. In the instant case appellant fired four shots at the officers; so even under Ladner, multiple convictions and sentences would be permissible.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Wicomico County.

      . Md. Code, Art. 27, § 386 reads as follows:
      “If any person shall unlawfully shoot at any person, or shall in any manner unlawfully and maliciously attempt to discharge any kind of loaded arms at any person, or shall unlawfully and maliciously stab, cut or wound any person, or shall assault or beat any person, with intent to maim, disfigure or disable such person, or with intent to prevent the lawful apprehension or detainer of any party for any offense for which the said party may be legally apprehended or detained, every such offender, and every person counselling, aiding or abetting such offender shall be guilty of a felony and, upon conviction thereof, be punished by confinement in the penitentiary for a period not less than eighteen months nor more than ten years.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    EDITH HITCH v. WILLIAM HALL
    [No. 823,
    September Term, 1978.]

      Decided April 17, 1979.

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

      Harry Goldman, Jr., with whom were Theodore Losin and DeHaven L. Smith on the brief, for appellant.

      E. Dale Adkins, III, with whom were Anderson, Coe & King on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

This case arises out of a claim for damages by reason of medical malpractice filed in the Baltimore City Court by Edith Hitch, appellant, against the appellee, Dr. William Hall, of Baltimore City, a specialist in obstetrics and gynecology.

The appellant had been a patient of the appellee since 1964. In the summer of 1970, the appellant became pregnant. She consulted Dr. Hall about the performance of an abortion and was scheduled for an abortion by suction dilation and curettage at Lutheran Hospital on August 31,1970. She was then at the end of her first trimester of pregnancy. Suction D & C is a procedure whereby the contents of the uterus are evacuated by means of a suction cannula. A cannula is a clear plastic tube which is attached to a vacuum machine. The procedure is done by dilating the cervix (gradually opening the mouth of the uterus by inserting increasingly larger instruments) and then inserting the suction cannula and vacuuming the walls of the uterus. If the patient is pregnant, the products of conception are removed by this process. During the course of the procedure, after the appellee had vacuumed the wall of the uterus, he discovered that some of the products of conception were too large to fit through the suction cannula. Because this tissue had to be removed, he inserted a sponge stick, also called a sponge forceps (a plier type device) into the uterus to remove the debris. On his second attempt, the appellee felt the forceps go deeper than on the first attempt. He realized then that the appellant’s uterus had been perforated. When such an eventuality occurs there is danger that one or more of the organs in the peritoneal cavity may be injured by the instrument causing the perforation. Because of this danger, the organs in the peritoneal cavity must be examined. This was done by the performance of an exploratory laparotomy through an abdominal incision. The findings of the laparotomy procedure and the steps taken to correct the condition discovered were issues at the trial. The appellee testified that as soon as the perforation occurred he requested a consultation with Dr. Harold Johnson, a surgeon with whom he had worked in the past. When the appellee was advised that Dr. Johnson was not in the hospital he requested the assistance of the Chief of Surgery, Dr. Pierson Checkett. In the meantime, Dr. Hall examined the bowel, and in addition to finding a tear in the uterus, found abrasions (bruises) in the serosal (outer) layer of the bowel in three places to the front of the perforation site. He ran the bowel (a process whereby the entire twenty-four to twenty-eight feet of bowel are passed between the surgeon’s fingers to inspect for tears or interference with the blood supply) and found no other damage. The rent (tear) in the uterus was closed, and when Dr. Checkett arrived, the appellee reported his findings to Dr. Checkett who visually examined the bowel. Both doctors agreed that a serosal repair of the bowel could be accomplished by Dr. Hall without the necessity of Dr. Checkett scrubbing. After the operation, the patient’s abdomen was closed, and she was taken to the recovery room in satisfactory condition. Appellant remained at Lutheran Hospital for eleven days as a result of the operation.

Appellant presented as her principal witness to substantiate the alleged malpractice of the appellee, Dr. Maurice Brown, a practicing physician from the Philadelphia area who was certified in obstetrics and gynecology. He testified that the appellee had violated accepted medical standards by failing to measure the depth of Mrs. Hitch’s uterus by not “sounding” the uterus (a procedure employed to measure the depth of the uterus), and by failing to administer immediately prior to the abortion or during the procedure a drug known as pitocin which would have caused the uterus to contract and become more firm. Dr. Brown testified that both of these procedures should have been utilized as they have a tendency to minimize the risk of perforation of the uterus during the performance of the suction D & C. Dr. Brown indicated that it was his opinion that as a result of the appellee’s failure to comply with accepted medical standards the appellant became infertile and sterilization was required; and that the appellant developed a permanent bowel problem. Appellee presented three Baltimore area physicians as expert witnesses to refute Dr. Brown’s suggestion that the appellee had failed to use accepted medical procedure in the performance of the abortion. After a nine-day trial, the case was submitted to the jury which returned a verdict for the defendant. It is from that judgment that this appeal was filed.

We have accepted the appellee’s somewhat simplified version of the issues. The issues are as follows:

I. Did the trial court commit prejudicial error in its instructions to the jury when it:
a. Refused to grant a missing witness instruction;
b. Refused to tell the jury that medical chart entries, uncontradicted by appellee, were declarations of his partners and binding on him; or
c. Instructed the jury that the mere happening of an accident is not evidence of negligence?
II. Did the trial court commit prejudicial error in granting appellant’s motion to strike certain testimony only after a delay during which time she reviewed the testimony in detail?
III. Did the trial court commit prejudicial error in allowing one of the appellant’s expert witnesses to be cross-examined about his motives for testifying?

Appellant complains initially that the trial court committed reversible error by instructing her counsel not to comment on the failure of the appellee to call as witnesses his partners, Drs. Randall and Chambers, and Dr. Johnson, who collaborated with the appellee in the treatment of the appellant. That error, she contends, was compounded by the refusal of the trial judge to grant a “missing witness instruction.” Appellant cites as authority for her first complaint, Hoverter v. Director, 231 Md. 608, 609, 188 A. 2d 696 (1963), where it was said:

In a civil case it is well settled that failure of a party to produce an available witness who could testify on a material issue, if not explained, gives rise to an inference that the testimony would be unfavorable, and is a legitimate subject of comment by counsel in argument to the jury. (Citations omitted.) (Emphasis supplied.)

The controlling requirement justifying the argument to the jury is that the available witness must be able to testify on a material issue, and that the testimony must be relevant and material, and not merely corroborative or cumulative. Jacobson v. Julian, 246 Md. 549, 229 A. 2d 108 (1967); Brooks v. Daley, 242 Md. 185, 218 A. 2d 184 (1966); Critzer v. Shegogue, 236 Md. 411, 204 A. 2d 180 (1964). The basic issue in this case was whether Dr. Hall had failed to treat this patient in accordance with accepted medical standards. There is nothing in the record which indicates that either Dr. Randall or Dr. Chambers had knowledge of what had occurred in the perforation of the appellant’s uterus. Neither Dr. Chambers nor Dr. Randall had been present at the time of the performance of the first operation involving the abortion procedure. Neither had any personal knowledge as to whether the patient’s uterus had been sounded or whether pitocin had been administered. Neither of the doctors had information, other than what was recorded in the hospital records, as to what procedures were followed after the patient’s abdomen was opened. It was the appellee’s decision in the preparation and trial of his case as to whether either Dr. Randall or Dr. Chambers should be called to substantiate Dr. Hall’s defense that he had acted in accordance with accepted medical standards in his treatment of the appellant. If he ha.d called them certainly their testimony would have been cumulative and would have been subject to attack on the grounds of bias. It would appear to have been sound trial tactics not to have called them in view of their minimal personal knowledge of the pattern of events and in view of the expert testimony available in the appellee’s portion of the case. The same result is obvious when one considers the failure to call Dr. Johnson. He was not present at the first operation. Testimony and records were presented to the jury which contained his treatment and operative findings and any testimony from Dr. Johnson personally would have been cumulative and collateral. Finally, all of these witnesses were available to the appellant. If she suspected that the records of these doctors might have revealed information which would have been useful in establishing the negligence of the appellee, then she could have subpoenaed Drs. Chambers, Randall and Johnson and required them to appear as adverse witnesses. As such witnesses, they would have been subject to cross-examination.

Intertwined with appellant’s complaint concerning the trial court’s restricting appellant’s counsel from arguing to the jury the failure to call the doctors as witnesses is the complaint that the trial court erred in refusing to give a missing witness instruction.

In Critzer v. Shegogue, supra, at 420-21, the Court of Appeals said:

Am. Jur. [20 Am. Jur. Evidence Section 183, at 188 (1939)] states the general rule thus: “It is a well-established rule that where relevant evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and he fails to do so, without satisfactory explanation, the jury may draw an inference that such evidence would be unfavorable to him. This rule is uniformly applied by the courts and is an integral part of our jurisprudence.” The questions relative thereto arise upon the propriety of the court or counsel remarking upon such a failure, upon the granting by the court of an instruction thereon, or statements relative thereto in appellate decisions. To the general rule, as stated above, there are qualification and limitations. [Citations omitted.] However, we do not deem it desirable to attempt to set forth any precise rule with all of the exceptions thereto, for, in passing upon such exceptions, it is often necessary for the trial judge to take into account all of the attendant facts and circumstances bearing upon the situation presented before him. [Citations omitted.] Each case must be determined upon its own facts and surrounding circumstances.

Upon close examination of the facts in the present case, it is evident that even if we concede, arguendo, that Dr. Hall’s partners, Dr. Chambers and Dr. Randall, might be said to have been under the control of Dr. Hall because of their personal relationship, the same conclusion cannot, in fairness, be reached with respect to Dr. Johnson, who by every standard of ethical conduct would be required to consider the best interests of Mrs. Hitch as she was his patient. Dr. Johnson, then, cannot be presumed to be under the control of the appellee even though Dr. Johnson and Dr. Hall had substantial professional contacts in the past. In view of these facts and the indication that the witnesses could at best offer only cumulative or collateral evidence, we believe that the trial court committed no reversible error in refusing the missing witness instruction and restricting appellant’s argument to the jury on the failure to produce as witnesses Dr. Randall, Dr. Chambers and Dr. Johnson.

Appellant next asserts that she was harmed by the refusal of the trial court to instruct the jury that the declarations and admissions of Dr. Hall’s partners were binding on Dr. Hall. We perceive no such harm. While it may be argued that the law states that an admission or declaration by a partner relative to a matter of partnership concern binds a co-partner, McBriety v. Phillips, 180 Md. 569, 26 A. 2d 400 (1942); Harryman v. Roberts, 52 Md. 64 (1879), that legal principle has no relevance in the factual posture of this case. The accuracy of the notes made by Dr. Randall and Dr. Chambers was never questioned by Dr. Hall, nor, for that matter, was the accuracy an issue in the case. The only note which even remotely has any relevance is the undated notice of transfer between services written by Dr. Randall which listed the reason for transfer as “Intestinal obstruction — resection of portion ileum.” Appellant contends that the note means there was a transfer because of an intestinal obstruction and that an anastomosis (resection) must have been done by Dr. Hall on August 31st, the date of the original operation. There is no evidence in the case to suggest Dr. Hall performed such an operation on August 31st, and he specifically denied the fact. Further, a careful examination of the evidence convinces us that the transfer note refers to the transfer to Dr. Johnson who performed the anastomosis on October 7th. Appellant did not call Dr. Randall to explain the time and circumstances under which the transfer note took place but chose, instead, to attempt to draw her own conclusion as to its meaning and date, and to then suggest to the trial court that her version of the circumstances was correct, and that Dr. Hall should be bound by the appellant’s interpretation of the meaning of the transfer note. We believe the trial court was correct in declining to follow the appellant’s suggestion as to Dr. Hall being bound by his partner’s declaration, as this was not a relevant issue in the case.

Appellant then contends that the trial court erred in its instructions to the jury when it stated several times that the mere,happening of the accident or the event complained of does not create any presumption of negligence, but that the burden of proof is upon the plaintiff in that regard. In Lane v. Calvert, 215 Md. 457, 462-63, 138 A. 2d 902 (1958), Chief Judge Bruñe of the Court of Appeals said for the Court: “It is well established by the case law in this State that the mere fact that an unsuccessful result follows medical treatment is not of itself evidence of negligence----”

We see no substantial difference between this statement and the instructions given by the trial judge. We have carefully read the entire instructions given by the court comprising some twenty-four typewritten pages and find no undue emphasis on the court’s statements that the mere happening of the accident was not sufficient in and of itself to justify an inference of negligence. To the contrary, we find that Judge Jones painstakingly explained the plaintiff’s burden of proof and that which was required to meet that burden of proof by a preponderance of the evidence. We find the instructions to have been eminently fair to both sides and, therefore, find no error.

Appellant complains there was prejudicial error in permitting Dr. Levin, one of the expert witnesses for the appellee, to testify that in his opinion the appellant’s infertility could have been due to one of two possible causes: (1) the uterine perforation; or (2) vaginal infections due to repeated sexual activity. Appellant suggests this testimony libeled her by inferring that she had had a venereal disease and degraded the appellant in the eyes of the jury to the detriment of her case. Appellant apparently contends that this testimony suggests that her infertility was caused by “venereal disease” as that term is popularly perceived by a layman. There is absolutely nothing in the record to suggest that appellant had the sexual diseases to which oppobrium might attach. Dr. Levin indicated she had been treated for a series of vaginal infections of a type not unusual in feminine hygiene. Furthermore, it is, we think, controlling that the record shows that the evidence was produced by the vigorous cross-examination of Dr. Levin by appellant’s counsel. Not a single word of the particular evidence came into the record as a result of questioning by Dr. Hall’s counsel in direct testimony. Counsel for Mrs. Hitch objected and moved to strike the offending testimony, and the trial court held the motion in abeyance until the motion could be considered. In her final instructions to the jury, Judge Jones said:

Before I instruct you in this case there are two matters I should explain, two evidentiary matters; one is that I have on motion stricken from the record the portion of Dr. Norman Levin’s testimony in which he recounted or stated from various records references to infections from which Mrs. Hitch had been treated and that was in connection with a theory which he had testified to regarding the obstruction of the tubes. That portion, just that portion of his testimony, has been stricken, and I’ve told you before, you must ignore anything that has been stricken from the record.

Appellant contends that the delay in granting the motion to strike lent new life to the libel of the appellant, and that the motion to strike should have been granted immediately as the repetition of the testimony without any instruction of the jury to disregard it at the time it was given sealed the damage that had already been done.

We find no prejudicial error in the delay in instructing the jury not to consider “that portion” of Dr. Levin’s testimony.

Finally, appellant suggests the trial court erred in its rulings regarding the cross-examination of Dr. Brown in striking his reference to a local conspiracy of silence and in refusing appellant’s proffer demonstrating a local conspiracy of silence. She contends that the trial court erred in permitting cross-examination of Dr. Brown on whether he was associated with other Philadelphia physicians who testified in Maryland in malpractice cases, and how they were employed. The Court of Appeals, in Kantor v. Ash, 215 Md. 285, 137 A. 2d 661 (1958), said: “[TJhis Court has adopted the general rule in American courts that a witness, whether a party to the suit or not, may be cross-examined on such matters and facts as are likely to affect his credibility, test his memory or knowledge, show his relation to the parties or the cause, his bias or the like.” (Citations omitted.)

We see no error in the cross-examination permitted, nor do we find any error in the court’s refusal to permit appellant’s counsel to present evidence of the existence of a conspiracy of silence. We do not understand counsel’s complaint of a conspiracy of silence as the services of three local doctors were secured to testify as experts. We think the trial judge wisely exercised her discretion in refusing an in-depth interrogation of the alleged conspiracy of silence in view of the circumstances in this case.

Judgment affirmed.

Costs to be paid by appellant.


author: Lowe, J.,

text:
    EILEEN BARBARA ZELL BROOKS et al. v. SAMUEL McMILLAN, JR.
    [No. 845,
    September Term, 1978.]

      Decided April 17, 1979.

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

      Benjamin Swogell for appellants.

      Rudolph R. Hill, Jr., with whom was James L. Foster on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

On November 19, 1975, the unimproved property of appellant, Eileen Barbara Zell Brooks, known as 3929 Cranston Avenue, Baltimore, Maryland, was sold by the City for taxes pursuant to Md. Ann. Code art. 81, § 72 (Repl. Vol. 1975). On July 6,1976, the purchaser, Samuel McMillan, filed a bill of complaint to foreclose rights of redemption pursuant to § 100, which allows a tax sale purchaser to move to foreclose the equity of redemption in Baltimore City after six months have elapsed following the sale. Pursuant to § 106, subpoenas were issued to Ms. Brooks at the 3929 Cranston Avenue address but were twice returned non est. Publication was ordered on the same date as the first issuance according to § 107.

On August 6,1976, Ms. Brooks wrote to appellee’s attorney of record, James L. Foster, Esq., by certified mail, return receipt requested, advising him that she intended to exercise her right of redemption pursuant to § 94 of art. 81, and requesting an itemized list of charges in accordance with that section. Ms. Brooks’ return address was given in the letter as

6327 Craigmont Road Baltimore, Maryland #21228

Mr. Foster responded on August 27, 1976, to the Craigmont Road address setting forth $175.64 for advertising, $40.00 filing fees and $275.00 attorney’s fees, requesting Ms. Brooks’ “prompt attention to the above matter.”

On September 3,1976, Ms. Brooks filed a petition to redeem 3929 Cranston Avenue. The right of redemption may be exercised at any time before the passage of a final decree of foreclosure. Heill v. Staniewski, 265 Md. 722, 725 (1972); Cahn v. Prince George’s Homes, 38 Md. App. 280, 284 (1977), aff'd, 283 Md. 76 (1978). Because § 94 (which deals with redemptions after foreclosure has been instituted) provides that the person so doing shall apply to the court to fix the amount of redemption, Ms. Brooks’ petition prayed that the court fix the amount and that the Director of Finance provide her with a certificate of redemption upon payment of the sum. Section 94 also states that

“[t]he collector shall accept no money for redemption as aforesaid unless and until a certified copy of the order of court fixing the amount necessary for such redemption shall be filed with the collector.”

Accordingly, Ms. Brooks appended an order to her petition setting forth each of the sums provided her by Mr. Foster, plus an amount of $774.85 which presumably was the tax due. She provided space for, but left open, the interest due pursuant to § 93, and necessarily provided no total for the figures. She provided a paragraph to be filled with the date after which, if the amount determined by the court was not paid, she would lose her right to redeem.

Nothing relevant occurred from the filing of that petition and order on September 3,1976, until December 2,1977, when appellee filed a motion to dismiss the petition to redeem. This petition was not served on Ms. Brooks, nor was it mailed to her home address. It was certified to have been mailed to the 3929 Cranston Avenue property. Presumably without a hearing, the judge signed an order dismissing the petition to redeem on December 19, 1977. The following day, he signed a decree vesting the property in appellee, McMillan.

According to the docket entry, two months later, on February 7, 1978, Ms. Brooks filed a “Motion ... to dismiss Decree signed 12/20/77” and a show cause order was issued to appellee, who answered on February 15, 1978. On March 6,1978, a motion was filed to place the case on the trial docket. Although there is no transcript of a hearing, the record indicates one was held on July 11, 1978; thereafter the court filed a Memorandum Opinion and Order “that Defendant’s motion to strike the decree dated 12/20/77 is denied,” Ms. Brooks has appealed.

She contends that the motion to dismiss the petition to redeem was improperly served because it was mailed to the address of the property which had been sold at the tax sale, and not to appellant’s home address which was on the petition to redeem. She contends that this improper service constitutes “constructive fraud” and the decree should be set aside pursuant to Md. Rule 625 a. Rule 625 gives the trial court revisory power over a judgment for thirty days after its entry and after that period “in case of fraud, mistake or irregularity.” Appellee argues that pursuant to Perryman v. Suburban Dev. Corp., 33 Md. App. 589 (1976), Md. Rule 625 a does not apply, but rather “yields inexorably to Art. 81.” Art. 81, § 113 declares that tax sale foreclosure decrees shall not be reopened “except on the ground of lack of jurisdiction or fraud in the conduct of the proceedings to foreclose ....”

Appellee’s reliance is misplaced because certiorari was granted in Perryman for the Court of Appeals to consider “the apparent conflict between Maryland Rule 625 a ... and sections 112 and 113 of Article 81____” Suburban Dev. Corp. v. Perryman, 281 Md. 168, 169 (1977). Although the Court did not reach the question, it clearly indicated by footnote the direction it would have us follow:

“In directing dismissal of this appeal we are not to be understood as either approving or disapproving the Court of Special Appeals’ conclusion that the revisory powers granted a circuit court by Maryland Rule 625 does not extend to cases involving foreclosure of the right of redemption. However, should the question arise again its resolution should be considered in light of our ruling in Owen v. Freeman, 279 Md. 241, 367 A. 2d 1245 (1977), concerning Rule 625 as it relates to Dismissal Rule 528 L of the Supreme Bench of Baltimore City, which was decided subsequent to the ruling of the Court of Special Appeals in this case.” Id.

In Owen v. Freeman, 279 Md. 241 (1977), the Court stated that, “[a]s is clear from the language of Rule 625 a, no judgment is specifically excluded from the operation of the rule, and our cases hold it applies to all final judgments.” Id. at 245 (citations omitted). In light of Owen, it appears that Rule 625 a is applicable.

The argument “strains at a gnat,” however; both Md. Rule 625 a and art. 81, § 113, allow for reopening a decree where there is fraud. Appellant contends that the improper service amounted to constructive fraud. In Jannenga v. Johnson, 243 Md. 1, 4-5 (1966), a similar contention was made and the Court held that the presence of fraud, actual or constructive, will justify the opening of a decree. Accord, Arnold v. Carafides, 282 Md. 375 (1978). “Fraud, as would justify reopening a final decree pursuant to section 113 of Article 81, need not be vicious and deliberate. Constructive fraud satisfies the requirement of the statute.” 243 Md. at 5. We have no difficulty in holding that under the circumstances of this case the lack of compliance with the notice requirement of art. 81, § 106, Md. Rule 306 c 2, in failing to notify the appellant of the motion to dismiss her petition to redeem, effected a constructive fraud against her resulting in the loss of her property. See Arnold v. Carafides, 282 Md. 375. Not only was appellee personally aware of appellant’s correct address through their exchange of correspondence, but also the record contains that address — and telephone number — clearly set forth twice on the petition to redeem that Ms. Brooks filed, and again on the unsigned order appended, constituting treble compliance with Md. Rule 301 f.

The court below held that the appellant’s failure to pursue her petition to redeem “in a timely fashion” precluded her right to redeem “ ‘by paying to the collector the amount for redemption..art. 81, § 92. The chancellor overlooked the fact that the next move was his, not hers. Under § 94, the tax collector could not accept her payment until she presented a certified copy of the court order fixing the amount necessary to redeem. Ms. Brooks obviously could not present such an order until the sum was established and the order signed by the chancellor. Even absent the element of constructive fraud by failure to notify appellant of the motion to dismiss her petition to redeem, the court’s dismissal of her petition based upon its own failure to act approaches a jurisdictional defect sufficient to reopen the final decree pursuant to art. 81, § 113. The court was applying the doctrine of laches against appellant as a consequence of its own dilatoriness. Ms. Brooks had done all that she was required to do until her order was signed, the amount due set forth, and a payment deadline established.

Laches is an equitable doctrine, and its application depends upon the facts and circumstances of each case. Its purpose is to do justice, and it is never invoked unless it accomplishes that end. Brashears v. Collison, 207 Md. 339, 352 (1955). It was certainly neither appropriate nor just to dismiss Ms. Brooks’ petition to redeem because the court had failed to act upon it.

Judgment reversed; order of

December 19, 1977 and decree of December 20, 1977, vacated; case remanded for chancellor to consider the petition to redeem and order the amount necessary for redemption.

Costs to be paid by appellee.

      . All references to sections of the statutes in this opinion are to sections of art. 81.

      . In the counties a purchaser must wait until one year and a day have elapsed following the sale.
      Baltimore City also has another unique provision permitting an earlier move to foreclose for properties certified to be in need of repair. The bill of complaint in this case alleged such need and recited an appended certification pursuant to the statute but no such certification appears in the record. Since the bill of complaint was filed after six months, the absence of the certificate does not invalidate the filing of the bill, but it may inferentially reflect upon appellee’s subsequent conduct.

      . While the motion recites that it is to strike the court’s order to dismiss the petition to redeem, it included the following language:
      “3. That the property owners are now ready and willing to complete the redemption of the property and urge this Court to reopen the proceedings for that purpose.”
      The February 7, 1978, docket entry for the motion reads: “Motion of Eileen Barbara Zell Brooks to dismiss Decree signed 12/20/77....” (emphasis added). The decree is dated December 20, 1977; the order to dismiss the petition to redeem is dated December 19, 1977. Both the appellee and the court treated it as a motion to strike the decree under Md. Rule 625 a. We will consider it as such for purposes of this appeal. To the extent appellee raised the question in his brief, we consider it waived.

      . In defining constructive fraud, the Jannenga Court noted that:
      “In Whitehurst v. Barnett, 161 Md. 444, 449, 157 Atl. 737 (1932), our predecessors said:
      ‘Constructive fraud, however, sometimes called ‘legal fraud’, is, nevertheless, fraud, although it rests more upon presumption and less upon furtive intent, than moral fraud.’’’

        Id. at 5.


author: Wilner, J.,

text:
    WILLIE MAURICE BEARD v. STATE OF MARYLAND
    [No. 893,
    September Term, 1978.]

      Decided April 17, 1979.

      The cause was submitted on briefs to Gilbert, C. J., and Thompson and Wilner, JJ.
    Submitted by Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Alice G. Pinderhughes, Assistant Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and John F. Hanson, Assistant State’s Attorney for Baltimore County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant was caught in a Beartrap; and, as a result, he was convicted by a jury in the Circuit Court for Baltimore County of two counts of assault, two counts of robbery, and two counts of conspiracy to receive stolen goods. He was sentenced to prison for 15 years for each assault conviction, 10 years for each robbery conviction, and 10 years for each conspiracy conviction, all of these sentences to be served concurrently. In this appeal, he raises the following four issues:

1. Did the trial court err in not merging the assault convictions into the robbery convictions?
2. Was the evidence sufficient to sustain appellant’s conviction of conspiracy to receive stolen goods?
3. Did the trial judge err in permitting appellant to make his own closing argument without first determining that appellant had knowingly and intelligently waived his right to counsel?
4. Did the trial judge err in not sua sponte taking action to correct prosecutorial misconduct?

Beartrap was an undercover fencing operation run jointly by the F.B.I. and the State and County police departments. It operated in the Lansdowne section of Baltimore County under the name of Exports Limited. Its purpose was to purchase stolen goods, identify, if possible, the receivers and the thieves, return the property to its rightful owners, and apprehend and prosecute the criminals. It has, under various covers, become in recent years a popular and effective law enforcement technique.

Through the testimony of State Troopers Voltaggio and Capelli and F.B.I. Agent Cherigo, it was established that, at 10:42 a.m. on May 13, 1977, one James Williams entered Exports Limited and offered for sale a large quantity of merchandise consisting of television sets, stereo equipment, fur and leather coats, and various men’s and women’s suits. A deal was struck, he was paid $1,000 for all that he had, and he left. Agent Cherigo, looking through some sort of “peephole”, saw Williams leave and engage in a conversation with appellant, who was outside in a car. About four minutes later, Williams, this time joined by appellant, reentered the “store”. According to Voltaggio, appellant complained about the price paid for the merchandise: “He stated he could get more money for his merchandise on the street than bringing it to our place.” Nevertheless, Voltaggio remained firm, and appellant and Williams ultimately left with just the $1,000. During this conversation, appellant described the fur coats that were part of the loot purchased.

This entire transaction — the original one with Williams and the subsequent conversation with Williams and appellant — was recorded on videotape. That tape was entered into evidence and played for the jury. It apparently corroborated in full the testimony of the police officers.

Williams and appellant were described as black males, Williams being taller than appellant. Both Trooper Voltaggio and Agent Cherigo identified appellant in court as the person who had accompanied Williams the second time. Voltaggio said that appellant had been in twice before, both times with Williams, and had previously offered goods for sale. Appellant was wearing white pants on this current occasion.

Charles and Shirley Smith then testified that at about 8:45 or 9:00 a.m. on that same day — May 13, 1977 — Charles answered a knock at his front door. As he opened the door, two black males burst in, one of them holding a pistol to his head. One was tall, the other shorter; the short one had a stocking mask over his head. Mrs. Smith noted that both men were wearing white overalls.

The two men tied the Smiths, put a pillowcase over Mr. Smith’s head, ransacked the house, and took from it cash, jewelry, fur and leather coats, suits, a color television set, and a stereo amplifier.

The combined testimony of the police officers and the Smiths established that the property purchased by Beartrap an hour or two after this robbery was, in fact, that belonging to the Smiths and taken from them in the robbery.

With this background, we may proceed to consider the issues raised by appellant, adding such additional facts as may be necessary as we go along.

(1) Merger of Assault and Robbery Convictions

The evidence showed rather clearly that the assaults committed upon Mr. and Mrs. Smith, charged under counts 8 and 9 of the indictment, were part and in furtherance of the robberies on those two victims charged in counts 13 and 14 of the indictment. There was no evidence of any independent assault on either Mr. or Mrs. Smith. Thus, the State quite properly concedes that the convictions under counts 8 and 9 must be merged into those under counts 13 and 14. Newton v. State, 280 Md. 260 (1977); Brooks v. State, 284 Md. 416 (1979); Powell v. State, 1 Md. App. 495 (1967). Accordingly, the convictions (and sentences imposed thereon) under counts 8 and 9 will be reversed.

(2) Sufficiency of Evidence of Conspiracy to Receive Stolen Goods

Counts 5 and 6 of the indictment charged appellant and Williams with conspiring with each other and with other persons unknown to receive the goods taken from Mr. and Mrs. Smith, knowing the same to have been stolen. Appellant claims that the evidence was not sufficient to warrant his conviction on those counts.

To put this issue in a proper context, we start with the proposition that appellant could not have been convicted of both the robbery and the substantive crime of having received the goods taken in the robbery, for the same reason that precludes the conviction of both a larceny and receiving the goods stolen in the larceny: “in law a thief cannot be guilty of the crime of receiving stolen goods which he himself has stolen, and a guilty receiver of stolen goods cannot himself be the thief, and hence the defendant could not be guilty on both counts.” Heinze v. State, 184 Md. 613, 617 (1945). See also Bell v. State, 220 Md. 75 (1959); Hardesty v. State, 223 Md. 559, 562 (1960); Fletcher v. State, 231 Md. 190 (1963); Osborne v. State, 4 Md. App. 57 (1968); Hinton v. State, 36 Md. App. 52 (1977).

This is not because of any doctrine of merger, but quite the opposite. The two crimes are deemed to be inconsistent.

The reason for this derives from the very nature of the crime of receiving. It arose initially from the common law misdemeanors of misprision of felony and compounding of felony (see Jackson v. State, 10 Md. App. 337 (1970)), and has carried forth at least two aspects of those antecedent offenses. One aspect is the sequential nature of the crime: it requires as a prerequisite a completed larceny. Until the larceny is complete, there are no stolen goods, known to be stolen and able to be received. Second, it has always envisioned the receiver as being someone other than the actual thief. This was evident from the root crimes: a person could not be convicted of misprision of felony or compounding a felony on the basis that he failed to prosecute himself for the underlying felony. The criminal act was the failure to prosecute someone else. Thus, as was said by the Florida court fifty years ago in Bargesser v. State, 116 So. 12 (Fla., 1928), “One cannot receive goods from himself. A theft must be perfected before the offense of receiving stolen property ... can be perpetrated, and the receiver of the stolen goods must be a person other than the principal in the larceny.”

At least as early as 1822, however, the Court of Appeals recognized that a'conspiracy to do any act that is itself criminal is an indictable offense at common law, quite apart from the substantive crime that is the object of the conspiracy. See The State vs. Buchanan et al., 5 H.&J. 317, 351 (Dec. Term, 1821). A concise explanation of the relationship between the conspiracy and its criminal object, fully supported by the decisions of the Court of Appeals and of this Court, was given by the Supreme Court in Iannelli v. United States, 420 U. S. 770 (1975). At pages 777-78, the Court stated (with citations omitted):

“Traditionally the law has considered conspiracy and the completed substantive offense to be separate crimes. Conspiracy is an inchoate offense, the essence of which is an agreement to commit an unlawful act----Unlike some crimes that arise in a single transaction ... the conspiracy to commit an offense and the subsequent commission of that crime normally do not merge into a single punishable act.... Thus, it is well recognized that in most cases separate sentences can be imposed for the conspiracy to do an act and for the subsequent accomplishment of that end____Indeed, the Court has even held that the conspiracy can be punished more harshly than the accomplishment of its purpose____
“The consistent rationale of this long line of decisions rests on the very nature of the crime of conspiracy. This Court repeatedly has recognized that a conspiracy poses distinct dangers quite apart from those of the substantive offense.”

See, in terms of the Maryland decisions, Garland v. State, 112 Md. 83 (1910); Jones v. State, 8 Md. App. 370 (1969).

Upon this rationale — that a conspiracy to commit any crime is itself a separate criminal offense — it would seem clear that conspiracy to receive stolen goods is not only an independent indictable offense, but that, upon sufficient evidence, a person may be convicted of both the conspiracy and the substantive receiving offense. There are few, if any, appellate decisions addressing this particular question, but the result would seem to follow from the underlying general principles. See United States v. Anderson, 552 F. 2d 1296 (8th Cir. 1977) where, in a footnote on page 1300, the Court concluded, presumably in the context of 18 U.S.C. §§ 371 and 659, that “[conspiracy to receive and possess stolen goods and possession of those goods cannot be deemed ‘inconsistent offenses’ under any theory.” Nor, based upon Jones v. State, supra, would two such convictions merge.

The question then is posed: assuming that conspiracy to receive stolen goods is a crime independent of the substantive offense of receiving such goods, under the circumstances of this ease, may appellant be convicted of the conspiracy when, because the goods to be received were those actually stolen by appellant, he could not have been convicted of the substantive receiving offense? In other words, given the particular facts of this case, can a person be convicted of both the robbery of the goods and conspiracy to receive the same goods? If he cannot receive goods from himself, can he conspire to receive goods from himself?

We have carefully framed these questions around the facts in this case — where the conspiracy charged relates only to the goods taken in the robbery and appellant was an active participant in that robbery. We are not concerned with the situation in which the receiver or conspirator to receive is a mere aider or abettor in the robbery (see Osborne v. State, supra, 4 Md. App. 57 at 60; State v. Bundy, 372 P. 2d 329 (Ariz., 1962)), or with the case of a continuing conspiracy to receive stolen goods only part of which emanate from a larceny carried out by the conspirators (compare People v. Lohman, 6 C.A.3d 760, 767-68 (Cal., 1970), cert. den. 400 U. S. 995 (1971)), or where, although the evidence would indicate that the conspirator was an active participant in the larceny, he was not actually convicted of the theft (see United States v. Anderson, supra, 552 F. 2d at 1300; Hinton v. State, 36 Md. App. 52 (1977)).

Counts 5 and 6 of this indictment, read in conjunction with the robbery counts (13 and 14), charge appellant and Williams with conspiracy to receive the very goods that they alone stole from the Smiths — and only those goods. The evidence, and the inferences fairly deducible from it, may well suffice to establish a more general conspiracy to receive stolen goods — this coming from the fact that appellant and Williams had dealt with Beartrap on earlier occasions — but the convictions could rest only upon what was charged in the indictment; and that, as noted, concerned only what was taken in this one double robbery. Except to establish identity, therefore, or for some other collateral purpose, the other transactions between these co-defendants and Beartrap would be entirely irrelevant in terms of describing the particular conspiracy charged here.

The only evidence of the conspiracy charged in the indictment was the actual “fencing” of the goods by Williams within an hour or so after the robbery, the subsequent conversation between him and appellant, and the prompt return of the two to complain about the price paid. There was no evidence that the conspiracy antedated the robbery or that it was independently formed after the robbery. It established only the successful attempt to dispose, as quickly as possible, of the loot the two had just stolen.

In light of the limited scope of the charge and the evidence adduced to support it, the conspiracy convictions in this case suffer from what, in tennis terms, would be called a double fault.

We stated in Jones v. State, supra, 8 Md. App. at 379-80:

“. . . . A conspiracy is to accomplish an act; the act is to be accomplished in futuro; the purpose of the conspiracy is to do something. ‘Persons cannot be guilty of conspiracy to commit a crime which has already been committed.’ 1 Wharton, supra, § 82, p. 176. ‘Mere cognizance of the commission of a crime * * * does not make the person having such knowledge, a co-conspirator of the criminal.’ Id., § 84, p. 181. This does not mean that the consummation of a crime precludes prosecution for a conspiracy to commit it. In fact the overt acts in the commission of the crime are relevant and material to the proof of the conspiracy. Hill v. State, supra. A criminal conspiracy is an offense distinct from the crime contemplated and the doctrine of merger is not applicable. Id., § 87, p. 188; Perkins, supra, pp. 533-534. A prior conviction of a crime does not entitle the accused to the defense of res judicata in a subsequent prosecution for conspiracy, even though the same evidence was introduced as part of the proof of the conspiracy. Rouse v. State, 202 Md. 481. Nor does the acquittal of a particular crime bar a subsequent prosecution for a conspiracy to commit it. Scarlett v. State, supra. What it does mean is that there must be evidence, direct or circumstantial, or rational inferences therefrom, sufficient to show that the combination to commit the crime was formed prior to the commission of that crime... (Emphasis in original.)

The first fault, and a fatal one, is that there was simply no evidence sufficient to satisfy the criterion set forth in Jones. There was no evidence of the conspiracy to receive these goods other than that they were, in fact, received. The evidence was of the completed crime, not a conspiracy to commit it. Under the circumstances of this case, to establish the conspiracy by inference would be to inflate the crime of conspiracy well beyond any heretofore recognized bounds. It would permit the finding of a conspiracy upon a showing of nothing more than that two or more people committed a crime that involved the most minimal premeditation, planning, or escape from the scene. The State has given us no authority for such a conclusion, and we know of none.

The second fault is akin to the first. Appellant and Williams were not charged with conspiring to receive stolen goods from each other. The thrust.of the indictment, and the evidence adduced to support it was a conspiracy, as a team, to receive such goods from themselves. In that context, it would be anomalous indeed if the law were to conclude that a person may not receive goods from himself, but that two people may conspire among themselves to do so. Thus, at least where the only substantial evidence of the receiving conspiracy is that which establishes the completed crime, it is equally inconsistent to convict of both the robbery/larceny and the conspiracy as it is to convict of the robbery/larceny and the completed crime of receiving. The underlying inconsistency may perhaps be overlooked where the conspirators have not actually been convicted of the robbery/larceny, a la United States v. Anderson, supra, but it certainly may not be overlooked where such a conviction has been obtained. The two convictions are legally inconsistent and may not both stand.

As appellant in this case has specifically challenged the conspiracy convictions and not the robbery convictions, the judgments entered on the conspiracy counts will be reversed rather than those entered on the robbery counts. As the sentences imposed in both cases were the same (10 years), we perceive no prejudice to appellant from this approach. Compare Bell v. State, supra, 220 Md. 75; Milanovich v. United States, 365 U. S. 551 (1961).

(3) Closing Argument

(4) Remarks of the Prosecutor

We shall consider the remaining two issues together.

At the conclusion of the case, after the court had instructed the jury and the State’s Attorney had made his initial closing argument, the following colloquy occurred:

“MR. FLETCHER [defense counsel]: If the court please, Mr. Beard, the Defendant, has asked to address the jury in closing argument himself, and I ask the Court that he be allowed to do that.
THE COURT: Is that your wish, Mr. Beard?
THE DEFENDANT: Yes.”

The court granted appellant’s request and permitted him to address the jury directly.

Although it is evident from the verdicts that he failed to convince the jury of his innocence (or at least to plant that “reasonable doubt” in their minds), his argument was a forceful and articulate one. He started:

“Ladies and gentlemen of the jury, I will be brief in my summation. As to the balance which you decide, depending upon that, it rests with you how I convince you now of my participation or non-participation in this crime.”

He referred to the State’s “case in chief”, and to the fact that it attempted to prove the crime in reverse sequence by starting with the fencing operation and moving back to the actual robbery. He argued:

“The fine line woven connecting me in this case from the end to the beginning is not there. It is a ghost. It is a charade in which they have taken technology, video tapes, tape recorders, professional people, the F.B.I., the State troopers in concert with the Baltimore City Police Department, and propped up the case superfluously just on the top. There is no depth. There is no density. Technology has connected me and Mr. Williams through audio video, as you saw on the tape, together, nothing else.”

He proceeded then to examine and deprecate the evidence adduced against him, concluding, in the end:

“Ladies and gentlemen, I ask you to ask yourselves these questions because my life lies in the balance. Hopefully you will render a just and honest decision. I think you will. And I ask you to ask yourselves in your decision am I beyond a reasonable doubt guilty of this crime? Thank you.”

In his rebuttal, the prosecutor attempted to use appellant’s articulateness against him. Most of his argument addressed directly the points made by appellant, but, near the end, he said:

“Ladies and gentlemen, we have here obviously what I would refer to as a courtwise con man. He quotes: “The State’s case in chief. How many of you ever heard that term, the State’s case in chief? This man has heard it before. He is not only a criminal, admittedly having been in the House of Correction, but he is a courtwise con man who now has taken the position that he knows even more than his attorney, that he will defend himself.”

No objection was made to these remarks; nor was a motion made to strike them, to admonish the prosecutor, or to instruct the jury further. But neither did the court say anything sua sponte.

Appellant first complains that his direct address to the jury amounted to a waiver of counsel, that the requirements of Maryland Rule 723 c were therefore applicable, and that the record indicates a failure to comply with those requirements. This is without any semblance of merit.

This was not a waiver of counsel. Counsel had represented appellant throughout the trial and continued to represent him during his address to the jury and afterward. Rule 723 is simply not applicable to this situation. The inquiry mandated by section c of that Rule applies to a defendant’s initial appearance and “to any proceeding at which he appears without counsel thereafter.” (Emphasis supplied.) Thompson v. State, 284 Md. 113, 126 (1978). At best, appellant’s address may have approached what has become known as “hybrid representation”, the allowance of which is discretionary with the court. See Callahan v. State, 30 Md. App. 628 (1976); United States v. Hill, 526 F. 2d 1019 (1975).

The complaint about the prosecutor’s remarks is more serious, but, in the end, equally unavailing. His complaint, specifically, was to the remark about appellant’s being “not only a criminal, admittedly having been in the House of Correction”, and also to the comment that he was a “courtwise con man” who thought he knew more than his attorney.

Both of these comments were highly improper. They were not fair comment upon the substantive evidence in the case and were not directed at the impeachment of appellant’s credibility as a witness. They were designed solely to instill in the jury a general antipathy toward appellant, and thus, in intent, exceeded the proper bounds of argument. See Holbrook v. State, 6 Md. App. 265 (1969); Conway v. State, 7 Md. App. 400 (1969); Mouzone v. State, 33 Md. App. 201 (1976).

The question before us, however, is whether it appears from the record that the jury was actually or likely to be influenced by these remarks to appellant’s prejudice; for only in that circumstance would a reversal of the convictions be warranted. See Holbrook, supra; Conway, supra.

That appellant once resided in the Maryland House of Correction was brought out by defense counsel during his cross-examination of F.B.I. Agent Cherigo and of the victim, Charles Smith. Cherigo was asked, on cross-examination, “in your investigation of Mr. Beard were you aware that he was an escapee at the time from the Maryland House of Correction?” (Emphasis supplied.) When cross-examining Mr. Smith, counsel elicited the fact that Smith had once been imprisoned for possession of marijuana. He then asked:

“Q Mr. Smith, is it correct to state the sentence you served was in the Maryland House of Correction?
A Yes, it was.
Q Was the Defendant Willie Beard also incarcerated at the Maryland House of Correction at that time?
A I have no knowledge of that. If he was, I never seen him.
Q Did you know Mr. Beard at all?
A Never seen Mr. Beard. If it was him that morning and day, it was the first time.
Q But you did not know Mr. Beard from the Maryland House of Correction?
A No, I did not.”

Appellant did not testify in his own defense, and so no evidence of any past criminal history was offered by the State for impeachment (or any other) purpose.

The prosecutor’s remarks about appellant’s having been a criminal, having been in the House of Correction, were improper because they were irrelevant to any issue in the case. But, given the fact that the jury was already aware of the same information, elicited by defense counsel, we cannot say that it was misled or prejudiced or likely to be misled or prejudiced, by the prosecutor’s reminding it of what it already knew. To that extent, and in light of the quick passing reference in the context of the overall argument, the Holbrook, Conway, and Mouzone cases are distinguishable.

The remarks about appellant’s being a courtwise con man, presuming to know more than his attorney, were also improper because of their irrelevance and their obviously inappropriate purpose. But they touched upon that which the jury could observe and judge for itself. These comments were not so inflammatory as, in our judgment, to create the real likelihood of prejudice.

Judgments entered on counts 5, 6, 8, and9reversed; judgments entered on counts 13 and 14 affirmed; costs to be paid by Baltimore County.

      . The rule prohibiting a conviction for both the larceny (or robbery) and receiving the goods stolen has always rested on the inconsistency between the two crimes, but there may be yet another basis to support it, a basis somewhat akin to double jeopardy and merger. Larceny and robbery are crimes against possession. They require, therefore, not only a taking but also a carrying away — an asportation in furtherance of an intention to deprive the owner of possession. See State v. Gover, 267 Md. 602 (1973). The larceny/robbery is not complete without the asportation, however slight that asportation may be. Osborne v. State, supra, 4 Md. App. 57; Wiggins v. State, 8 Md. App. 598 (1970).
      The offense of receiving stolen goods has four elements: (1) the goods must be received; (2) they must, at the time of receipt, be stolen; (3) the receiver must have guilty knowledge that they are stolen; and (4) his intent in receiving them must be fraudulent. Jordan v. State, 219 Md. 36 (1959). Under the "required evidence” standard laid down in Newton v. State, supra, 280 Md. 260, the two crimes would not inherently merge because each requires one or more elements that the other does not.
      If the law countenanced one’s ability to receive stolexi goods from himself, however, the act of asportation — that final element necessary to the crime of larceny/robbery — would necessarily constitute the reception of the goods — goods stolen, known to be stolen, and “received” with fraudulent intent. In other words, every larceny or robbery would necessarily make the thief a receiver, subject to double criminality and double punishment. The potential double jeopardy problem is self-evident. See North Carolina v. Pearce, 395 U. S. 711 (1969); Thomas v. State, 277 Md. 257 (1976); Cousins v. State, 277 Md. 383 (1976); Brooks v. State, supra, 284 Md. 416.

      2. Compare, however, Md. Annot. Code art. 27, § 38, limiting by statute the maximum punishment for conspiracy to that provided for the substantive offense.