author: Wilnkr, J.,

text:
    IN RE: DAVID K.
    [No. 1287,
    September Term, 1980.]

      Decided May 13, 1981.

      Neil Edward Axel for appellant.

      Patricia E. McDonald, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Eric E. Wright, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Wilnkr, J.,

delivered the opinion of the Court.

The seventeen-year old appellant was found to be a delinquent child by reason of his having committed certain traffic offenses. He makes no complaint about that finding. What he does complain of is the dispositional order entered by the court. Specifically, he asks in this appeal whether the juvenile court had the authority to (1) require him to pay a $500 fine, and (2) suspend his driving privileges for an indefinite period.

The relevant facts are not in dispute. We shall adopt the statement of them set forth in appellant’s brief:

"On May 24, 1980, at approximately 4:00 p.m., Maryland State Police Trooper S. A. McGee was operating a stationary radar speed gun at U.S. Route 50 and Bell Road in Worcester County. At the time, a 1966 Buick automobile, operated by the Appellant, was observed in the fast lane of eastbound U.S. Route 50 at a high rate of speed. The radar speed gun indicated the vehicle was traveling at 101 miles per hour in the 55 mile per hour speed zone at that location. The vehicle was in the fast lane and no other motor vehicles were near it. The vehicle was stopped at U.S. Route 50 east of Maryland Route 610, and at that time the police officer could detect a moderate to strong odor of alcohol on the operator. The Appellant’s manner was that of an intoxicated person in the opinion of the officer, in that his face was flushed and he staggered when attempting to walk. Also in the motor vehicle operated by the Appellant was a passenger who also smelled of the odor of alcohol. In plain view in the rear seat of the motor vehicle were ten 16 ounce Colt 45 Malt Liquor cans which were unopened. The beer was in an ice-filled cooler with no top. A blood sample was obtained from the Appellant which was tested for the presence of alcohol. The said sample was found to contain 0.15% ethel [sic] alcohol by weight.”

As the result of this occurrence, a juvenile petition was filed in the Circuit Court for Worcester County charging appellant with being delinquent by (1) possessing an alcoholic beverage, in violation of Md. Ann. Code art. 27, § 406 A, (2) operating a motor vehicle while intoxicated, in violation of Transportation Article, § 21-902 (a), (3) driving while impaired by consumption of alcohol, in violation of Transportation Article, § 21-902 (b), and (4) speeding, in violation of Transportation Article, § 21-801.1. At or before the adjudicatory hearing, the State dismissed charges (1) and (3), but, proceeding on an agreed statement of facts, the court found charges (2) and (4) to be sustained and, accordingly, entered a finding of delinquency.

Pursuant to Courts article, § 3-809, and apparently without objection, the proceeding was then transferred for purposes of disposition to Montgomery County, where appellant and his family lived. After holding a disposition hearing, the District Court for that county, Juvenile Division, entered an order: (1) committing appellant to the Maryland Training School; (2) suspending that commitment and placing appellant in the care of his parents under a program of probation to be provided by the Juvenile Services Administration; (3) directing that appellant receive "a tour” of the Maryland Training School and referring him to "the DWI School”; (4) suspending appellant’s privilege to operate a motor vehicle; (5) fining appellant $500, to be paid at the rate of $100 a month; and (6) continuing the court’s jurisdiction over appellant.

In the Stipulation of Facts entered by the parties, we are told that appellant objected to parts (4) and (5) of the order — the suspension of driving privileges and the fine. It does not appear in the stipulation, although it does in the record, that the court had before it a "social history” indicating that appellant had previously been charged with vandalism, which charge had been informally adjusted based upon an agreement to pay restitution of $1,400, that he had two previous speeding violations, that he consumes a six-pack of beer twice a week (and has been drinking beer since the ninth grade), that he occasionally uses marijuana, and that, in the social worker’s view, he did not seem to be taking this episode very seriously.

Appellant’s attack on the suspension of his driving privileges and the fine is based on overlapping, yet distinct theories.

By way of introduction, he correctly states that the primal focus of the juvenile causes act is rehabilitation and not punishment. This is clear from § 3-802 of the Courts Article, in which the Legislature- set forth the purposes of the juvenile law, from § 3-824, which states that an adjudication of delinquency is not a "criminal conviction for any purpose and does not impose any of the civil disabilities ordinarily imposed by a criminal conviction,” from most of the other operative provisions in that law, and from the interpretations given to the law by the appellate courts of this State. See, for example, In re Hamill, 10 Md. App. 586 (1970); Matter of Davis, 17 Md. App. 98 (1973); In re Appeal Misc. No. 32, 29 Md. App. 701 (1976). The clearest expression of this is Judge Orth’s statement in Davis, supra, 17 Md. App. at 104:

"The raison d’etre of the Juvenile Causes Act is that a child does not commit a crime when he commits a delinquent act and therefore is not a criminal. He is not to be punished but afforded supervision and treatment to be made aware of what is right and what is wrong so as to be amenable to the criminal laws.”

In accord with this philosophy is Courts Article, § 3-820, which lays out the dispositional options available to a juvenile court following a finding of delinquency. Section 3-820 (b) provides:

"The overriding consideration in making a disposition is a program of treatment, training, and rehabilitation best suited to the physical, mental, and moral welfare of the child consistent with the public interest.[] The court may:
(1) Place the child on probation or under supervision in his own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate;
(2) Commit the child to the custody or under the guardianship of the Juvenile Services Administration, a local department of social services, the Department of Health and Mental Hygiene, or a public or licensed private agency; or
(3) Order the child, parents, guardian, or custodian of the child to participate in rehabilitative services that are in the best interest of the child and the family.”

It is important, also, at the outset, to make clear what the court did. As we have noted, it committed appellant to the training school and then suspended that commitment in lieu of a program of probation to be provided by the Juvenile Services Administration. The succeeding obligations imposed upon appellant by the rest of the order were not expressed as conditions to the probation, but rather as independent requirements.

(1) Power to Fine

The penultimate paragraph, at issue here, said:

"ORDERED that the minor child ... be fined by the Court the sum of $500.00, said sum is payable in payments of $100.00 per month with the first payment due on or before the 30th day of September, 1980, and subsequent monthly payments due each and every month thereafter until the amount has been paid in full and satisfied. ...”

That, without question, is a ñne — not an order of restitution to an injured party (see Courts Article, § 3-829) but a fine payable to the State; and it is clear to us that it was beyond the power of the court to impose.

A fine is a penal exaction; it may be imposed only "if there is a 'conviction’ which necessarily requires a finding of guilt.” Commissioner of Motor Vehicles v. Lee, 254 Md. 279, 286 (1969). It has consistently and universally been defined and considered in the context of a criminal proceeding, as a punishment imposed upon conviction of a crime. See, for example, 36A C.J.S. Fines, § 1, quoted in Lee, supra; also People Ex Rel. Doss v. Doss, 342 N.E.2d 60, 63 (Ill. App. 1975): "Generally, a fine is a pecuniary punishment for a violation of law and relates to a criminal offense”; Bergman v. State, 60 P.2d 699, 700 (Wash. 1936): "A fine is a sum of money exacted, as a pecuniary punishment, from a person guilty of an offense...”; State v. Pitts, 548 P.2d 1202, 1203 (Ariz. App. 1976): "A fine is a criminal penalty ... and clearly constitutes a 'sentence’ ...”; Marquart v. Maucker, 215 N.W.2d 278 (Iowa 1974); Sinner v. State, 260 N.W. 275 (Neb. 1935); State v. Rugon, supra, 355 So. 2d 876, 877; Hart v. Norman, 155 N.Y.S. 238 (S. Ct. 1915), appeal denied, 155 N.Y.S. 1112 (App. Div.); South Carolina State Highway Dept. v. Southern Railway Co., 122 S.E.2d 422 (S.C. 1961).

As appellant points out, some state juvenile codes expressly permit the imposition of a fine in juvenile cases. See, for example, Me. Rev. Stat. Ann., tit. 15, § 3314 (1979); Ohio Rev. Code Ann., § 2151.355 (a) (6) (Supp. 1980) (fine not to exceed fifty dollars); S.D. Comp. Laws Ann., § 26-8-39 (Supp. 1980) (fine not to exceed fifty dollars); Tenn. Code Ann., § 37-231 (5) (Supp. 1980) (fine not to exceed fifty dollars for each offense); Utah Code Ann., § 78-3a-39 (Supp. 1980) ("fines in limited amounts”); Va. Code Ann., § 16.1-279.E5 (1980 Supp.) (fine not to exceed five hundred dollars); and Wyo. Stat. Ann., § 14-6-229 (d) (ii) (1980 Supp.). The Maryland Code, however, makes no such provision. It permits the court to fine or imprison an adult upon conviction of contributing to a child’s status as delinquent, in need of supervision, or in need of assistance (Courts Article, § 3-831); but nowhere in the range of dispositional options set forth in § 3-820 (b) is there any mention of or allusion to the imposition of a fine. Indeed, as is clear from the very nature of a fine, such an option would be entirely inconsistent with the current non-criminal thrust of our juvenile code. It is for that reason that we conclude that the court had no authority to impose the fine.

(2) Suspension of Driving Privileges

Appellant’s attack on the suspension of his driving privileges is a dual one. It rests in part on the same theory presented in connection with the fine — that such an option is not mentioned in § 3-820 (b), as it is in the juvenile codes of some other States, and for that reason does not exist. Second, he points out that the power to suspend or revoke driving privileges is committed exclusively to the Motor Vehicle Administration (MVA), an Executive Branch agency, and thus any purported exercise of that power by the juvenile court would not only be ultra vires but also a violation of the separation of powers principle embodied in article 8 of the Maryland Declaration of Rights. These issues are a bit more complex than the matter of the fine.

Preliminarily, we reject the notion that merely because an option or power is not expressly stated in § 3-820 (b) it does not exist. Although the court’s discretion is not unbridled (In re Johanna F., 284 Md. 643, 650 (1979)), it is broad, as indeed it must be if the court is to be able to implement the "overriding consideration [of devising] a program of treatment, training, and rehabilitation best suited to the physical, mental, and moral welfare of the child consistent with the public interest,” currently mandated by the statute. The provisions of § 3-820 (b) have to be considered in pari materia with the legislatively declared purposes of the juvenile code, as set forth in § 3-802 (a). The first-stated, and we think primally important, of these is "[t]o provide for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle; and to provide for a program of treatment, training, and rehabilitation consistent with the child’s best interests and the protection of the public interest.” To that end, § 3-802 (b) provides that the subtitle, including, of course, § 3-820 (a), "shall be liberally construed to effectuate these purposes.”

In that light, it would be wrong to construe § 3-820 (b) in too restrictive a manner and to limit the court only to what is expressly contained in the three paragraphs of subsection (b). Subject to external constraints, which we shall discuss shortly, the court must be free to consider each child individually and to fashion a treatment plan (if one is needed) that takes account of his particular needs and situation. We noted the absence from § 3-820 of a power to fine (in contrast to its inclusion in other state juvenile codes) only because that power is so peculiarly related to criminal proceedings, and thus contrary to the main thrust of our juvenile code, rather than as something dispositive in and of itself.

Considering the facts revealed in the "social history,” the court had an entirely legitimate concern that, if permitted to continue driving, appellant could be a significant danger to himself and to the public. It therefore was entirely appropriate for the court, in the exercise of its general authority to fashion and implement a reasonable and effective program of rehabilitation, to insist that appellant refrain from exercising the driving privilege accorded him by virtue of his driver’s license. We have no doubt that such restraint could have been directly effected as part of a probation order — a voluntary agreement by appellant to surrender for a time his privilege to drive as a condition of probation. Such a condition would have been consistent, in our judgment, with the goal of instructing appellant, in the words of Davis, supra, "of what is right and and what is wrong so as to be amenable to the criminal laws.”

It is evident from this that the goal sought to be achieved here is not only an appropriate one, but one that is within the clear, albeit implicit, power of the juvenile court. The real issue before us is whether the court used an impermissible method of achieving that goal; the problem, in other words, is with the means, not the end.

There is, of course, a comprehensive set of laws governing driving in this State which, like Caesar’s Gaul, seems to break down into three parts. We have, initially, a code of laws determining, in general, who may and who may not drive in Maryland. Those laws are set forth in Transportation Article, Title 16, which firmly and unequivocally commits their administration to MVA. A second element in the overall regulatory scheme is the series of laws governing the way in which people must (and must not) drive — the "rules of the road,” so to speak — which are declared to be criminal laws, subjecting violators to criminal sanctions. Finally, there are laws and procedures for adjudicating alleged violations of those "rules of the road” and imposing penalties on convicted violators. Primary authority in this area is vested in the district court as part of its statutory criminal jurisdiction. See Courts Article, § 4-301 (a). However, where the alleged violation carries a possible sentence of incarceration and the accused is under eighteen, the juvenile court has exclusive jurisdiction over that offense and any other traffic offense arising out of the same incident. Courts Article, §§ 3-804, 4-301. Where that jurisdiction obtains, the offense, in effect, is "decriminalized.” Naturally, there is an interrelationship among the three elements, the most obvious and relevant facet of which is that a "conviction” by a court — a finding that a licensee has violated one or more of the rules of the road — can lead to a suspension or revocation of driving privileges by MVA. That, indeed, is the very connection allegedly intruded upon in this case.

We start with the first element — the regulation of drivers. Section 16-101 (Transportation Article) is the linchpin; it provides that a person may not drive a motor vehicle on any highway in Maryland unless (1) he "holds a driver’s license issued under this title ...,” or (2) he is expressly exempt from the licensing requirements, or (3) he is otherwise specifically authorized to drive vehicles of the type he is driving.

In accordance with statutory criteria (§§ 16-103, 16-103.1), MVA is empowered to issue learners’ permits (§ 16-105), accept applications for licenses (§§ 16-106, 16-107), examine applicants (§§ 16-110, 16-111), and issue the appropriate licenses (§§ 16-111, 16-113, 16-114). Section 16-111 (d) expressly provides that "[w]hen issued and signed, a driver’s license authorizes the licensee to drive any vehicle of the type or class specified on it, subject to any restrictions endorsed on the license.” (Emphasis supplied.)

What MVA giveth, MVA may taketh away; but only for specific statutorily prescribed reasons and only in accordance with statutorily prescribed procedures and limitations. In the context of appellant’s transgressions, §§ 16-402 and 16-404 are most relevant.

Section 16-402 provides for the assessment by MVA of "points” against a licensee upon conviction of violating the various rules of the road. Subsection (a) (21), in particular, provides for the assessment of twelve "points” for driving while intoxicated. Subject to the provisions of § 16-405, which do not appear to be applicable in this case, § 16-404 (a) requires MVA to "[r]evoke the license of each individual who accumulates 12 points.” MVA must notify the licensee of its action and afford him the opportunity of a hearing before the Administrator. Once revoked under § 16-404, a license may be reinstated by MVA only upon repassage of the examination given to new applicants.

The juvenile code itself gives recognition to the administrative responsibility of MVA. Section 3-824, as noted earlier, declares that an adjudication of delinquency is not tantamount to a criminal conviction and does not impose the civil disabilities attendant to such a conviction; but it goes on to provide that "an adjudication of a child as delinquent by reason of his violation of the State vehicle laws shall be reported by the clerk of the court to the Motor Vehicle Administration, which shall assess points against the child under Title 16, Subtitle 4 of the Transportation Article, in the same manner and to the same effect as if the child had been convicted of the offense.” This provides the proper and efficient method of achieving the court’s rehabilitative goal if, for whatever reason, a voluntary relinquishment of the license by the juvenile is not practicable. This is the legislatively crafted route for harmonizing the respective functions of the juvenile court and MVA without an undue infringement upon either.

The action of the juvenile court in this case was quite obviously not in harmony with the statutory scheme. It suspended appellant’s driving privileges without purporting to suspend his license, which is inconsistent with § 16-111 (d), supra. It ordered an indefinite suspension, which is inconsistent with the specific time limits on suspensions set by § 16-208 (a) of Transportation Article. And, equally important, it has placed appellant in a status of which MV A is completely unaware. If a juvenile court had that authority (and exercised it in the manner done here), the integrity of MVA’s records would soon be placed in serious jeopardy. It could never be entirely certain of the actual driving status of its licensees under twenty-one years of age.

Given the clear thrust of the overall statutory scheme of regulation, we conclude that a juvenile court has no present authority directly to suspend a child’s driving privileges upon a finding of delinquency. That is a power committed by statute exclusively to MV A.

For these reasons, we must vacate the two challenged paragraphs of the order. The juvenile court, of course, retains jurisdiction over appellant and may, as part of that continuing jurisdiction, continue or modify its program of rehabilitation in light of this result as it deems appropriate.

Orders imposing $500 fíne and suspending appellant’s driving privileges vacated; costs to be paid by Montgomery County.

      . Senate Bill 62, enacted by the 1981 General Assembly, and currently pending action by the Governor, amends § 3-820 (b) by adding "the public safety” as a co-equal priority in disposition. It rewords the introductory sentence to read, “The priorities in making a disposition are the public safety and a program of treatment....” If signed by the Governor, the bill will take effect July 1, 1981.

      . We note this simply as a fact and not to suggest that, if stated as a condition of probation, these impositions would necessarily be viewed any differently. See, for example, State v. Rugon, 355 So. 2d 876, 878 (La. 1977): "Formulating the sentence so as to make the exaction a condition of probation does not change its essential nature nor bar its classification as a fine.” Compare People v. Labarbera, 201 P.2d 584 (Cal. App. 1949); Shore v. Edmisten, 227 S.E.2d 553 (N.C. 1976); and Brown v. State, 559 P.2d 107 (Alaska 1977).

      . A bill permitting juveniles charged with driving while intoxicated or impaired to be tried as adults in the district court was introduced into the 1981 General Assembly, but it did not pass. See Senate Bill 986 (1981).

      . Section 16-102 sets forth the exemptions and other specific authorizations referred to in § 16-101. They are not relevant to this proceeding.

      . These sections are the most relevant to appellant’s situation, but they are only part of MVA’s overall authority to suspend and revoke drivers’ licenses. Section 16-205 directly authorizes MVA to revoke the license of a person convicted of driving while intoxicated, quite apart from the 8 16-404 authority to revoke by reason of "point” accumulation. Also, 8 16-206 permits MVA to revoke or suspend a license if, after an administrative hearing, it finds that the licensee, "(1) Has been convicted of moving violations so often as to indicate an intent to disregard the traffic laws and the safety of other persons on the highways; [or] (2) Is an unfit, unsafe, or habitually reckless or negligent driver of a motor vehicle.” To take action under 8 16-206, MVA must comply with the notice and hearing requirements set forth in title 12, subtitle 2 of the Transportation Article. Upon revoking or suspending a license, MVA is required to take physical possession of it. Section 16-210.

      . It is interesting to note that, presumably acting pursuant to 8 3-824, the clerk of the juvenile court (Montgomery County) notified MVA on an MVA form of appellant’s adjudication as a delinquent, but failed not only to specify what charges were sustained, but to note the court’s suspension of appellant’s driving privileges. The only disposition noted on the form was "Placed on suspended commitment to Maryland Training School and fined $500.” MVA would thus have no knowledge of the suspension.

      . Section 11-128 defines a license to drive "as used in reference to the operation of a motor vehicle” as any "(1) Driver’s license; and (2) any other license or permit to drive a motor vehicle that is issued under or granted by the laws of this State, including: (i) Any temporary license or learner’s permit; (ii) The privilege of any individual to drive a motor vehicle, whether or not that individual is formally licensed by this or any other jurisdiction; and (iii) Any nonresident’s privilege to drive, as defined in this subtitle.” (Emphasis supplied.) By virtue of this definition, read literally but fairly, the court’s suspension of appellant’s privilege to drive may have been tantamount to a suspension of the license itself; but if that were the case, it would have been inconsistent with Transportation article, § 16-210, requiring the "suspender” to take physical possession of the license itself.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    WAYNE ARTHUR JONES v. STATE OF MARYLAND
    [No. 1321,
    September Term, 1980.]

      Decided May 13, 1981.

    The cause was argued before Liss, Wilner and Weant, JJ.

      John L. Kopolow, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Maureen O’Ferrall, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and
      Warren F. Sengstack, State’s Attorney for Calvert County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Wayne Arthur Jones, appellant, wa: charged by indictment on April 22, 1980 in the Circuit Court for Calvert County with: assault with intent to rape (count 1); assault with intent to maim (count 2); assault and battery (count 3); and attempted rape (count 4). Appellant was tried by a jury on June 9-10,1980, and was convicted of counts 1 and 3. The court granted appellant’s motion for judgment of acquittal on count 2 and the State nol prossed count 4. On July 28, 1980, appellant was sentenced to serve two concurrent fifteen year sentences. From these judgments, he takes this appeal. Three issues are raised to be determined by this Court:

1. Whether the trial court erred in denying appellant’s motion to suppress the admission of his tennis shoes into evidence?
2. Whether the trial court erred in denying appellant’s motion to suppress oral and written statements given to police?
3. Whether there was sufficient evidence to sustain appellant’s convictions?

1.

Pursuant to appropriate motion, a suppression hearing was held prior to trial and out of the presence of the jury. At the hearing, appellant sought to have all physical evidence, i.e., his tennis shoes, and statements made by appellant to the Maryland State Police, suppressed as a violation of his constitutional rights.

The record indicates that on the evening of April 11,1980, Sergeant Stinnett of the Maryland State Police, Prince Frederick Post, responded to a complaint of an attempted rape which allegedly occurred on a parking lot of a High’s store in Prince Frederick, Maryland. He interviewed the victim and attempted to get a description of her assailant. During the course of his investigation, Sergeant Stinnett learned that the assailant fled into the woods behind the High’s store. After a brief search of the area, he found footprints leading from the parking lot into the woods. On the following morning, at approximately 7:00 a.m., Sergeant Stinnett found similar footprints leading out of the other side of the woods in the vicinity of a house occupied by appellant’s father, Charles Jones. Near the house was a gutted bus, which was being used as a residence by the appellant and his girl friend. Sergeant Stinnett approached the bus with appellant’s father and explained to appellant that he was investigating an assault which took place the night before.

Appellant stated that he was aware of the incident because of a conversation he had had the previous evening with another State trooper. The Sergeant then told the appellant that he had found footprints in the area and asked if he could look at the appellant’s shoes. It is conceded that prior to that point in the conversation, the appellant had asked the Sergeant to wait outside the bus because his "old lady” was asleep inside. While appellant was in the back of the bus gathering his shoes together, Sergeant Stinnett, without permission, stepped upon the platform of the bus, placing himself in a position from which he could observe appellant and see into the interior of the vehicle. Sergeant Stinnett testified that the following then occurred:

Q Did you ever enter the Trailer?

A Yes sir, I was standing at the entrance way.

Q All right, he brought the tennis shoes to you as a result of a conversation that you had with him. You indicated that you were—

A —I asked him if he minded if I checked the shoes and he showed me several pairs of shoes; I asked him if he had a pair of tennis shoes and he stated that he did.

Q Okay, and once you got the tennis shoes, what occurred then?

A I told him that I would like to take the shoes back and check them with those found at the scene and that I would like him to come with me also. And I would like to ask him some questions and I told him that he wasn’t under arrest and he agreed to come, he said he had nothing to hide.

Q Was anyone else present at that time?

A His father was there.

Q Only the three of you there.

A Yes sir. Well there was a white female asleep in the bus. I assume she was asleep. She never aroused at the time I was there.

Q How long did you stay in the Trailer?

A Approximately five minutes.

Q Did you go through the Trailer?

A No sir, I just stood at the entrance way.

Appellant remained at the Prince Frederick Post while Sergeant Stinnett took the tennis shoes and compared them with the footprints previously discovered. Upon verification that the shoes fit the footprints, Stinnett returned to the Post and notified the appellant that he was under arrest.

Appellant argues vigorously that his motion to suppress the admissibility of the tennis shoes should have been granted because they were seized in a warrantless search in violation of his fourth amendment rights under the United States Constitution, and that the search and seizure was not permissible as being pursuant to a valid consent given by the appellant.

Appellee contends that there was no search and seizure and urges that we adopt the conclusion of the trial judge that there was, in fact, no illegal taking of the tennis shoes; rather, they were voluntarily surrendered to Sergeant Stinnett without duress or coercion, either express or implied.

It is well established that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per sé unreasonable under the fourth amendment — subject only to a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967). The burden is on the State to establish that the warrantless search and seizure is within one of these exceptions. Smith v. State, 33 Md. App. 407, 365 A.2d 53 (1976). It is clear to us that the action of the police officer in invading the privacy of the appellant’s bus without a warrant was a trespassory invasion and if the possession of the tennis shoes had been the result of a search and seizure by the officer while he was so trespassing, it would have been required that the physical evidence and the evidence flowing from it be suppressed. There was, however, in this case testimony from which the trier of fact could reasonably conclude that there was in fact no search, and that the seizure of the tennis shoes was permissive. The trial judge declined to suppress the tennis shoes because there was "no search — made at all.”

The record shows that at the suppression hearing the appellant testified as follows:

A I showed him a pair of my shoes and I went back in the bus to get the shoes and that is when he came in and say, yeah I want to see them shoes right over there, get me them.

Q You were going to bring him those shoes anyway, weren’t you?

A Yes sir.

Q And he didn’t have a gun at you to make you do that, did he?

A Now wait a minute, there is a whole lot of difference when you—

Q —Now just answer my question. Did he have a gun on you?

A No he didn’t.

Q All right and you were going back and you were going to get the shoes and bring them to him, were you not?

A Yes sir.

Q Now you were not under arrest at that time, were you?

A No sir.

Q He didn’t tell you at any point that you were under arrest until you were down here in Prince Frederick, right?

A Yes sir.

Under the totality of the circumstances, the State had the burden of showing by a preponderance of the evidence that appellant’s surrender of the tennis shoes was voluntary and did not result from duress or coercion, express or implied. Logue v. State, 282 Md. 625, 386 A.2d 780 (1978). See also Dailey v. State, 234 Md. 325, 199 A.2d 211 (1963), cert. denied, 379 U.S. 975, 85 S. Ct. 671, 13 L. Ed. 2d 566 (1965); Armwood v. State, 229 Md. 565, 185 A.2d 357 (1962).

While there is no question that the trooper’s action in boarding the bus was unauthorized, the record of the suppression hearing reveals a voluntary decision on the part of appellant to cooperate with Sergeant Stinnett. Appellant testified that:

A ... I was kinda’ celebrating a little. So then he told me, he say, I would like to see your shoes. So I said, sure, you know. I went and got the shoes and brought them out and he said do you have any tennis shoes or sneakers and I said, yeah I have some. So I went in the bus, when I left to turn and go in the bus, I told him why don’t you stay out here, because my old lady is in here she is asleep. So I went on in to get the shoes, you know, and when I turned around he was standing in the bus.

Q Yes.

A And he say, yeah, let me see those shoes and I went and took the shoes to him and he took them out of my hand and he looked at them and we went outside the bus and he said, Mr. Jones I would like to take your son down to the station and ask him a few questions, I want to take these shoes.

Q Yes.

A So I said, Okay, you know. I went and got dressed and went on down to the station with him.

The trial court found that the appellant voluntarily surrendered the tennis shoes to Sergeant Stinnett and we find nothing in the record from which we could determine that the trial judge was clearly erroneous. We also conclude from our independent review of the entire record that the consent was not the by-product of coercion or duress, direct or implied. See Mosley v. State, 289 Md. 571, 425 A.2d 1039 (1981).

2.

Appellant next argues that the trial judge erred in denying his motion to suppress the admission of his oral and written statements which he contends were not freely and voluntarily given. There is no suggestion that appellant did not receive the Miranda warnings, nor that he did not understand them. In order for the statements made by appellant to be admissible into evidence, the State must show that it was not the product of force, threats, promises or inducements. Stokes v. State, 289 Md. 155, 423 A.2d 552 (1980); Hillard v. State, 286 Md. 145, 406 A.2d 415 (1979). It is the burden of the State to show affirmatively that a confession is voluntarily given and not improperly induced. Hillard, supra; Abbott v. State, 231 Md. 462, 190 A.2d 797 (1963).

The factual basis upon which appellant relies in his contention that his oral and written statements were improperly induced and therefore involuntary are found in the testimony of Sergeant Stinnett and the appellant at the suppression hearing.

Appellant contends that during the course of his interrogation he indicated to Sergeant Stinnett that he needed help and the Sergeant told the appellant that if he needed help "we [the police] would have to get the truth.” The record verifies appellant’s contention.

Sergeant Stinnett testified as follows:

Q Do you recall him twice telling you before you had this confession that you got out of him that he had trouble with his memory?

A He told me that.

Q When did he tell you that?

A Ah, after he was placed under arrest.

Q After he was placed under arrest?

A Yes sir.

Q Before he gave you a confession?

A Yes sir. Well while he was giving me a confession or statement he was telling me that he couldn’t remember everything that happened that night.

Q And weren’t you filling in some details for him? Didn’t you tell him what happened?

A Well I told him — we discussed the incident, I don’t remember exactly what I told him or what he told me. He did tell me he couldn’t remember everything he did that night.

Q Didn’t you tell him you would get him some help if he told you what happened?

A He told me that he needed some help.

Q What did you tell him?

A 1 said that is something we will have to see about later. If he needed some help we would have to get the truth.

The accused’s testimony verified the Sergeant’s statement as to what occurred when he signed the statement:

Q Well why did you sign your name to it, if you didn’t do it?

A Because I thought I was going to get some help.

Q Which Sergeant Stinnett had never promised you.

A Sergeant Stinnett told me that he would not give me help if I did not cooperate with him.

Judge Digges, speaking for the Court of Appeals in Hillard v. State, supra, stated the Maryland law as to the effect of an inducement upon the admissibility of a statement:

[It] clearly emerges that under Maryland criminal law, independent of any federal constitutional .requirement, if an accused is told, or it is implied, that making an inculpatory statement will be to his advantage, in that he will be given help or some special consideration, and he makes remarks in reliance on that inducement, his declaration will be considered to have been involuntarily made and therefore inadmissible. [286 Md. at 153.]

Judge Lowe, speaking for this Court in Rowe v. State, 41 Md. App. 641, 398 A.2d 485 (1979), said:

The Biscoe formula requires in perspective, not only the preliminary determination of whether the underlying meaning of the words used would have clearly constituted to anyone a holding out of an inducement, but even then, to further determine whether the accused had been influenced by such inducement, if one is found to have been offered. Ralph v. State, 226 Md. 480, 486 (1961). See Merchant v. State, 217 Md. 61, 69 (1958); Kier v. State, 213 Md. 556, 561-563 (1957). The detrimental effect of the "inducement” upon the accused must affirmatively appear in the record in order for the defendant to prevail in suppressing his statement. See Ralph v. State, 226 Md. at 487-488. [41 Md. App. at 645-46.]

Our examination of the record in this case convinces us that Sergeant Stinnett did in fact offer the accused an improper inducement when he told the appellant that if he wanted "some help we would have to get the truth” and that the appellant gave and signed the inculpatory statement in reliance on that inducement. We conclude therefore that the judgments in this case must be reversed.

3.

We find no merit in appellant’s contention that the evidence was insufficient to sustain appellant’s conviction. Appellant was positively identified in court as the perpetrator of these crimes. That testimony, if believed, was sufficient to sustain appellant’s conviction. Jackson v. State, 46 Md. App. 325, 416 A.2d 1353 (1980).

Judgments reversed, case remanded for new trial, costs not to be reallocated pursuant to Md. Rule 1082 f.

      . Miranda v. Arizona, 384 U.S. 436 (1966).

      . Biscoe v. State, 67 Md. 6 (1887).


author: Morton, J.,

text:
    IN RE: STEPHEN J.
    [No. 1333,
    September Term, 1980.]

      Decided May 13, 1981.

    The cause was submitted on briefs to Morton, Moylan and Wilner, JJ.
    Submitted by Stephen H. Sachs, Attorney General, F. Ford Loker, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Jeffrey T. Wennar, Assistant State’s Attorney for Prince George’s County, for appellant.
    Submitted by Patrick R. Duley for appellee.
   Morton, J.,

delivered the opinion of the Court.

A delinquency petition was filed in the Circuit Court for Prince George’s County, Juvenile Causes Division, on May 13, 1980, charging Stephen J. with burglary and related offenses. The State filed a petition for waiver of juvenile jurisdiction on July 15,1980. After a hearing on August 15,1980, the petition was dismissed. The adjudicatory hearing on the delinquency petition was set for September 15, 1980.

At the hearing on that date counsel for the juvenile moved to dismiss the petition on the ground that the hearing on September 15, 1980, "is over thirty days past the dismissal or denial of the waiver .. . He argues that the holding of an adjudicatory hearing on that date (concededly 31 days after the denial of the State’s petition) would be in violation of Maryland Rule 914. That rule provides, in part:

"RULE 914. ADJUDICATORY HEARING.
a. Requirement.
After a juvenile petition has been filed, and unless jurisdiction has been waived, the court shall hold an adjudicatory hearing.
b. Scheduling of Hearing.
An adjudicatory hearing shall be held within sixty days after the juvenile petition is served on the respondent. However:
(i) if a waiver petition is filed, an adjudicatory hearing shall be held within thirty days after the court’s decision to retain jurisdiction at the conclusion of the waiver hearing .. . .”

In dismissing the delinquency petition, the juvenile judge stated:

"THE COURT: Gentlemen, I am going to shoot from the hip but in light of some of the other decisions of the Court of Appeals, particularly in the adult criminal field, particularly such things as the Hicks case and other cases that have come down where they have very seriously shot at nisi prius judges and told them that rules are to be followed and not to be run roughshod over, I am going to grant the respondent’s motion and dismiss the petition.”

We think the juvenile judge should have taken more accurate aim at Maryland Rule 8, which provides, in part:

"In computing any period of time prescribed by these Rules or order of a court, or by an applicable statute, the day of the act, event, or default, after \which the designated period of time begins to run is not to be included. Saturdays, Sundays and legal holidays shall be counted when the prescribed period is more than seven days; otherwise these days shall not be counted. When the last day so computed would fall on a Saturday, Sunday or legal holiday, the period shall extend to the first day thereafter not one of these days. "(Emphasis added.)

It is conceded that the thirty days after the filing of the petition was a Sunday. In our view, the thirty day requirement in Rule 914 must be read in conjuction with the method for time computation set forth in Rule 8. When this is done, it becomes self evident that the conduct of the adjudicatory hearing on September 15, 1980, would have been proper. Accordingly, it was error to dismiss the delinquency petition.

Judgment reversed and case remanded for adjudicatory hearing; costs to be paid by Prince George’s County.


author: Thompson, J.,

text:
    KATHRYN McKOWN v. CRISER’S SALES AND SERVICE et al.
    [No. 801,
    September Term, 1980.]

      Decided June 3, 1981.

    The cause was argued before Gilbert, C. J., and Thompson and Weant, JJ.

      Paul G. Evans, for appellant.

      Theodore B. Oshrine, with whom were Donald C. Allen and Allen, Thieblot & Alexander on the brief, for appellee Criser’s Sales and Service.
   Thompson, J.,

delivered the opinion of the Court.

The principal issue before us is whether, under the Maryland long-arm statute, and consistent with the Due Process Clause of the Fourteenth Amendment, a Maryland court may exercise personal jurisdiction over the appellee, a Virginia car dealer who sold a vehicle to a Maryland resident, in an action brought by a Maryland resident to recover for injuries allegedly caused in Maryland by defects in that vehicle. The Circuit Court for Baltimore County held that no basis existed for the assertion of personal jurisdiction and dismissed the action as to the appellee. We agree that jurisdiction is lacking and affirm.

In 1975, the appellant, Kathryn McKown, was injured when the vehicle in which she was riding, a 1972 jeep stationwagon owned by Katherine Marshall Washburne and driven by her son, Richard Janney Washburne, ran off the road, overturned twice, and caught fire. The vehicle had been purchased new in 1971 by Mrs. Washburne, a Maryland resident, from the appellee, Clarence C. Criser, t/a Criser’s Sales and Service (Criser), at Criser’s place of business in Hot Springs, Virginia. The purchase price of the jeep was $5,642.00. At the time of the accident, McKown was a resident of Maryland; the accident occurred on a highway in Maryland.

McKown subsequently filed a negligence and products liability action in the Circuit Court for Baltimore County against Criser and others, alleging that the jeep had been sold in a dangerously defective condition, that Criser had been negligent in selling the vehicle and in failing to discover and correct the defects, and that the defects had, at least in part, caused her injuries. Criser responded by filing a motion raising preliminary objection, pursuant to Md. Rule 323, in which he contended that the Maryland court lacked jurisdiction ov.er his person. Along with his motion, he filed an affidavit which stated, in pertinent part, that Criser:

"LM]aintains its principal place of business in . . . Virginia, and does not sell any motor vehicle or any other goods in . .. Maryland!;] ... does not nor has it ever done or solicited business in .. . Maryland nor does it or has it ever engaged in any course of conduct in . .. Maryland!;] .. . does not nor has it ever maintained any office . .. Lor] .. . personal property in Maryland, and does not nor has it ever had any ... employees living and/or working in Maryland!;] • •. does not nor has it ever derived any substantial revenue from goods, services, or manufactured products used or consumed in .. . Maryland. On very infrequent occasions, a resident of Maryland purchases a vehicle from LCriser], If this occurs, as it did with the Washburne vehicle [Criser] ... prepares the appropriate form so that the vehicle can be registered in Maryland. However, LCriser] ... never solicits such business, never advertises in Maryland, but merely sells a vehicle to a purchaser who, on very infrequent occasions happens fortuitously to be a resident of Maryland.”

At the hearing on Criser’s motion, held on January 2, 1979, before Judge Paul E. Alpert, this affidavit was the only evidence presented by either side. On April 24, 1979, Judge Alpert granted the motion raising preliminary objection and ordered that judgment for costs be entered in Criser’s favor. The order did not contain an express determination that there was no just reason for delay in entering judgment. On February 11, 1980, McKown filed an application to stay execution of Judge Alpert’s order, under Md. Rule 1019. Criser responded with a motion ne recipiatur, pursuant to Md. Rule 322. On June 2, 1980, a hearing was held before Judge Buchanan, who, on that same day, signed an order which stated that, having considered the motion raising preliminary objection, the motion ne recipiatur, and the arguments of counsel, he found there to be no just reason for delay in the entry of judgment and directed the entry of judgment for costs in favor of Criser. This appeal followed.

McKown argues that Criser is subject to the jurisdiction of the courts of this state under the Maryland long-arm statute, Md. Cts. and Jud. Proc. Code Ann. § 6-103, and that the court below therefore erred in dismissing the action as to Criser. Application of the long-arm statute involves a two step process. First, it must be determined whether the language of the statute authorizes jurisdiction; second, because the Due Process Clause of the Fourteenth Amendment limits the power of a state court to render a valid personal judgment against a nonresident defendant, Kulko v. Superior Court, 436 U.S. 84, 91, 98 S. Ct. 1690, 56 L. Ed. 2d 132 (1978), it must be determined whether the exercise of jurisdiction, if authorized by the statute, would be consistent with Fourteenth Amendment Due Process. See, Mohamed v. Michael, 279 Md. 653, 657, 370 A.2d 551 (1977); Geelhoed v. Jensen, 277 Md. 220, 224, 352 A.2d 818 (1976). The two determinations are inter-related "as it was the intent of the Legislature in enacting the long-arm statute to expand the personal jurisdiction of the courts to the extent permitted by the Fourteenth Amendment,” Mohamed v. Michael, 279 Md. at 657, and thus "the reach of the statute will largely depend upon whether Maryland in personam jurisdiction may be asserted under the Fourteenth Amendment.” Krashes v. White, 275 Md. 549, 559, 341 A.2d 798 (1975).

McKown asserts that jurisdiction is present under § 6-103 (b) (4), which authorizes the exercise of personal jurisdiction over one who:

"Causes tortious injury in the State or outside of the State by an act or omission outside the State if he regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial revenue from goods, food, services, or manufactured products used or consumed in the State.”

She claims that Criser caused tortious injury in Maryland by an act or omission outside of Maryland, i.e., the injuries she allegedly suffered in Maryland as a result of Criser’s negligence in inspecting and selling the jeep in Virginia, and that Criser derived substantial revenue from goods or manufactured products used in Maryland. Criser obviously derived some revenue from goods or products used in Maryland; he was paid $5,642 for the Washburne jeep, which was used in Maryland, and it may be assumed that the other vehicles he admittedly sold to Maryland residents were used in Maryland as well and that he derived additional revenue from their sale. The critical inquiry then is whether the revenue derived by Criser from vehicles used in Maryland is "substantial.” Inasmuch as the purpose of the long-arm statute is to extend the jurisdiction of the Maryland courts to the limits of the Constitution, the term necessarily takes its meaning from the requirements of due process, i.e., "substantial revenue” is that amount of revenue which gives the defendant the required "minimum contacts” with the forum state. See, Geelhoed v. Jensen, 277 Md. at 226-27.

Significant guidance in this area is found in the recent decision of the U.S. Supreme Court in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980), where the Court addressed the question of

"[WJhether, consistently with the Due Process Clause of the Fourteenth Amendment, an Oklahoma court may exercise in personam jurisdiction over a nonresident automobile retailer and its wholesale distributor in a products-liability action, when the defendants’ only connection with Oklahoma is the fact that an automobile sold in New York to New York residents became involved in an accident in Oklahoma.” Id. at 287.

In that case, New York residents purchased a new car from a New York dealer; the car had been distributed to the dealer by a regional distributor which served the states of New York, New Jersey, and Connecticut. A year later, while they were traveling through Oklahoma on their way to their new home in Arizona, the purchasers were involved in an accident and seriously injured. They subsequently brought suit in Oklahoma against the dealer and the distributor, among others, alleging the car had been defectively designed and manufactured. The Oklahoma Supreme Court held that the exercise of jurisdiction over the defendants, under a provision of the Oklahoma long-arm statute which was, in pertinent part, identical to subsection (b) (4) of the Maryland statute, was proper; the Court reasoned that, due to the mobile nature of automobiles, it was foreseeable that vehicles sold in New York would be used in Oklahoma, that vehicles sold by the defendants obviously were used in Oklahoma, and that, given the value of the automobile, it was reasonable to infer that the defendants derived substantial revenue from cars which were, from time to time, used in Oklahoma.

The U.S. Supreme Court held that the exercise of jurisdiction over the defendants by the Oklahoma courts violated due process and reversed. Reaffirming the principle that a state may exercise personal jurisdiction over a nonresident defendant only when there exists "minimum contacts” between the defendant and the forum state, the court stated:

"[W]e find in the record before us a total absence of those affiliating circumstances that are a necessary predicate to any exercise of state-court jurisdiction. Petitioners carry on no activity whatsoever in Oklahoma. They close no sales and perform no services there. They avail themselves of none of the privileges and benefits of Oklahoma law. They solicit no business there either through salespersons or through advertising reasonably calculated to reach the State. Nor does the record show that they regularly sell cars at wholesale or retail to Oklahoma customers or residents or that they indirectly, through others, serve or seek to serve the Oklahoma market. In short, respondents seek to base jurisdiction on one, isolated occurrence and whatever inferences can be drawn therefrom: The fortuitous circumstance that a single Audi automobile, sold in New York to New York residents, happened to suffer an accident while passing through Oklahoma.” Id. at 295.

The Court distinguished these circumstances from those where "sale of a product of a manufacturer or distributor ... is not simply an isolated occurrence, but arises from the efforts of the manufacturer or distributor to serve, directly or indirectly, the market for its product in other States .. under the latter circumstances, the Court wrote:

"[I]t is not unreasonable to subject it to suit in one of those States if its allegedly defective merchandise has there been the source of injury to its owner or to others. The forum State does not exceed its powers under the Due Process Clause if it asserts personal jurisdiction over a corporation that delivers its products into the stream of commerce with the expectation that they will be purchased by consumers in the forum State.” Id. at 297-98.

The Court also rejected the argument that, because the automobile is by its very nature mobile, it was foreseeable that the cars sold in New York would enter Oklahoma and cause injury there, stating:

"But the foreseeability that is critical to due process analysis is not the mere likelihood that a product will find its way into the forum State. Rather, it is that the defendant’s conduct and connection with the forum State are such that he should reasonably anticipate being haled into court there.” Id. at 297.

See also, Granite States Volkswagen, Inc. v. District Court, 492 P.2d 624 (Colo. 1972); Tilley v. Keller Truck & Implement Corp., 438 P.2d 128 (Kan. 1968); Pellegrini v. Sachs & Sons, 522 P.2d 704 (Utah 1974); Oliver v. American Motors Corp., 425 P.2d 647 (Wash. 1967). (All holding that jurisdiction may not be exercised over a nonresident car dealer, where only connection between dealer and the forum state was the occurrence of the injury and the foreseeability that the vehicle in question would be used in the forum state).

Finally, while not directly addressing the question of what constitutes "substantial revenue,” under the Oklahoma long-arm statute, the Supreme Court rejected the Oklahoma court’s reasoning that, because one vehicle sold by the defendants had been used in Oklahoma, others might have been used there as well, and that the defendants derived substantial revenue from those vehicles. The Court said:

"LFlinancial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State, [citation omitted]. In our view, whatever marginal revenues petitioners may receive by virtue of the fact that their products are capable of use in Oklahoma is far too attenuated a contact to justify that State’s exercise of in personam jurisdiction over them.” Id. at 299.

The burden of alleging and proving the existence of a factual basis for the exercise of personal jurisdiction, once the issue has been raised, is upon the plaintiffs. Quinn v. Bowmar Publishing Co., 445 F. Supp. 780, 786 (D. Md. 1978); United Merchants and Manufacturers, Inc. v. David & Dash, Inc., 439 F. Supp. 1078, 1081 (D. Md. 1977). In the instant case McKown produced no evidence whatsoever to support her contention that Criser was subject to the jurisdiction of the Maryland courts; the only evidence before the court below was that contained in the affidavit which Criser submitted in support of his motion raising preliminary objection. That evidence showed that Criser had the following contacts with Maryland, the forum state: on one occasion, more than three years prior to the accident, he sold one vehicle to a Maryland resident, at his place of business in Virginia, for $5,642, knowing that that vehicle would be used in Maryland; in addition, he sold, "on very infrequent occasions,” an unspecified number of other vehicles at unspecified times to unidentified Maryland residents, for unspecified prices. As in World-Wide Volkswagen, there was no evidence that Criser carried on any activity of any kind in Maryland, that he availed himself of any of the privileges or benefits of Maryland law, that he closed any sales or performed any services in this state, that he solicited any business or advertised in Maryland, or that he regularly sold cars to Maryland customers. Clearly, Criser’s contacts with Maryland are somewhat more extensive than were those of the World-Wide Volkswagen defendants with Oklahoma; it cannot, for instance, be said here, as it was in World- Wide Volkswagen, that there is no evidence that any vehicle sold by the defendants, other than the one involved in the litigation, had ever entered the forum state. However, we do not believe that the limited additional contacts present here are sufficient to satisfy due process. We note that, had evidence been adduced to supply some of the missing details of Criser’s "very infrequent” sales to Maryland residents, e.g., had it been shown that Criser had made a significant number of sales to Maryland residents over a relatively short period of time, cf., Hardy v. Rekab, Inc., 266 F. Supp. 508 (D. Md. 1967) (five sales of amusement park rides in Maryland over six-year period, coupled with delivery in Maryland on two occasions, and one trip by representative to Maryland to supervise installation, held sufficient to establish jurisdiction over Oregon manufacturer under subsection (b) (4) and to satisfy due process), or that a significant percentage of his total annual sales were to Maryland residents, cf., United Merchants and Manufacturers, Inc. v. David & Dash, Inc., 439 F. Supp. at 1084-85 ($30,000, representing one-half of one percent of defendant’s total annual sales, held "substantial revenue”) and cases cited therein; cf. also, Egeria Societa di Navigazione Per Az. v. Orinoco Mining Co., 360 F. Supp. 997 (D. Md. 1973), we would likely have reached a different result. Nevertheless, on this record we cannot say that Criser has made efforts to serve the market for its products in Maryland, or that his sales to Maryland residents were other than isolated occurrences. His conduct and connection with Maryland are not such that he should reasonably have anticipated being haled into court here. Cf., Lewron Television, Inc. v. International Alliance, 37 Md. App. 662, 673, 378 A.2d 728 (1977) (no jurisdiction over association under subsection (b) (4) where only a small percentage of its members were Maryland residents and where its activities in Maryland were limited to participation in collective bargaining talks on rare occasions). But cf., Bodine’s Inc. v. Sunny-O, Inc., 494 F. Supp. 1279 (N.D. Ill. 1980). Criser was not shown to derive substantial revenue from goods or products used in Maryland and therefore jurisdiction cannot be exercised over him, consistent with Fourteenth Amendment due process.

McKown also raises several procedural objections to the judgment entered by the court below in Criser’s favor:

(1) McKown’s first contention is that "Judge Alpert’s determination of April 24,1979, was not a judgment and did not dismiss the claim against Criser or any other defendant.” Judge Alpert’s order did not contain an express determination that there was no just reason for delay in the entry of judgment, pursuant to Md. Rule 605 a, and therefore was an interlocutory, as opposed to a final, judgment. As such, it did not dismiss the claim against Criser or any other defendant. Having agreed with McKown’s observation, we are at a loss to determine what significance it has.

(2) McKown’s second contention is that "Judge Buchanan was without jurisdiction to enter judgment for Criser by reason that the law of the case and the lack of a discreet application prevented him from doing so.” To the limited extent to which this argument is comprehensible, it appears that it is McKown’s contention that it was improper for a judge other than Judge Alpert to enter judgment for Criser. The complaint is without merit. McKown’s motion for a stay and Criser’s motion ne recipintur were properly presented to the motions judge for the Circuit Court for Baltimore County, Judge Buchanan. The interlocutory judgment entered by Judge Alpert was, under Md. Rule 605 a, subject to revision at any time by any judge having jurisdiction over the matter. Judge Buchanan had such jurisdiction and there was nothing improper in his directing that final judgment be entered.

(3) McKown’s third argument is that "the action of the trial courts in granting judgment to Criser without an evidentiary hearing also violates procedural due process.” Again, McKown’s contention is without merit. A hearing was held on January 2, 1979, before Judge Alpert, on Criser’s motion raising preliminary objection. Thereafter, on June 2, 1980, a hearing was held before Judge Buchanan on Criser’s motion ne recipiatur. There is nothing to indicate that McKown was prevented at either of these hearings from presenting any evidence she wished to support her claim that the exercise of jurisdiction over Criser was proper.

(4) McKown’s fourth contention is that "Rule 605 requires that the trial judge state his reasons for granting judgment to some but not all the defendants and why there was no just reason for delay in entering judgment.” Md. Rule 605 a provides as follows:

"Where more than one claim for relief is presented in an action, whether as an original claim, counterclaim, cross-claim, or third-party claim, the court may direct the entry of a final judgment upon one or more but less than all of the claims only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates less than all the claims shall not terminate the action as to any of the claims, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims.”

Although it is apparently required under federal practice that the court set forth its reasons for so doing when it enters a partial, final judgment, see, Vazquez v. Ferre, 410 F. Supp. 1385, 1386 (D. N.J. 1976), this requirement is not stated in the Maryland Rule and we have been referred to no Maryland authority which imposes such a requirement. We see no reason to impose such a requirement under the facts of this case. Compare Md. Rules 18 b and 564 b 2.

(5) The appellant has inartfully argued throughout the brief that the trial judge erred in entering a final judgment because she needed discovery from Criser in order to be able to prove her case against the other defendants. Although two cases, Hunt v. Mobil Oil Corp., 550 F.2d 68 (2d Cir.), cert. denied, 434 U.S. 984 (1977) and Vazquez v. Ferre, supra, indicate that a need for discovery was a proper consideration in deciding whether or not to make an interlocutory judgment final, neither of them indicated that it should be controlling. We certainly could not hold that the trial judge abused his discretion in deciding that that issue was not controlling as applied to a defendant who was not subject to suit in this state. Under the Md. Rules, discovery can be obtained from nonresident nonparties as well as from nonresident parties. See, Md. Rule 408; Md. Rule 425. We note that after the appeal was filed, the appellant filed and obtained an order from the Circuit Court for Baltimore County to permit the taking of Criser’s employees’ depositions in the State of Virginia on not less than twenty days’ notice of the time and place.

Judgment affirmed.

Appellant to pay the costs.

      . The alleged defects involved (1) the vehicle’s fuel system, which leaked fuel and which exploded in the accident, (2) the material used in the vehicle’s interior, which was alleged to be excessively flammable, and (3) the doors and windows, which became inoperable in the accident, trapping McKown for a time in the burning car. Also named as defendants were the jeep’s driver, who allegedly fell asleep at the wheel, the owner, who allegedly had knowledge of the defective fuel tank and failed to have it repaired, the owner’s husband, who, "as agent” for the owner, was allegedly negligent in his attempts to have the tank repaired, the manufacturer, who produced the defective vehicle, the distributor, who sold the defective vehicle to Criser, and three establishments which serviced the jeep’s fuel system prior to the accident and failed to remedy the defect. McKown’s action is still pending against these additional defendants; they are not involved in this appeal.

      . McKown also contends that jurisdiction exists under Section 6-103 (b) (2) and (b) (6). These contentions may be disposed of summarily. Subsection (b) (2) authorizes jurisdiction over persons who contract to supply goods, services or manufactured products "in the State.” Criser contracted with Washburne to supply a new vehicle at his place of business in Virginia and perhaps to supply, again at his place of business, the documents required to permit Washburne to register the vehicle in Maryland; so far as the record discloses, Criser did not contract to supply anything in the State of Maryland. Therefore, subsection (b) (2) is not applicable. Subsection (b) (6) "is a specialized subsection relating to insurer and surety relationships,” McLaughlin v. Copeland, 435 F. Supp. 513, 529 (D. Md. 1977), and was intended to apply only to insurance contracts. See, Auerbach, "Long-Arm” Comes to Maryland, 26 Md. L. Rev. 13, 45-46 (1966); Uniform Interstate and International Procedure Act (U.L.A. § 1.03), Commissioners’ Comment. The apparent basis for McKown’s claim that jurisdiction over Criser is authorized under (b) (6) is the "warranty” allegedly given by Criser; it cannot be determined from either the declaration or the brief whether she is referring to an implied warranty of fitness or merchantability under the Uniform Commercial Code, see, e.g., Md. Comm. Law Code Ann. §§ 2-314 and 2-315, or to the limited time-mileage warranty covering various components of the vehicle, which typically is given by the manufacturer of a new car. Regardless of which is intended, it is clear that she has not alleged that Criser had any connection with any contract of insurance and therefore subsection (b) (6) is not a basis for jurisdiction in this case.

      . In International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S. Ct, 154, 90 L. Ed. 95 (1945), the Supreme Court stated: "[D[ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice.’ ”

      . As Hot Springs, Virginia is approximately 200 miles from the Maryland border, it is unlikely that Criser’s Maryland sales are significant.


author: Melvin, J.,

text:
    WALTER GREEN, JR. v. STATE OF MARYLAND
    [No. 836,
    September Term, 1980.1

      Decided June 3, 1981.

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

      Gary W. Christopher, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and John L. Norton, State’s Attorney for Dorchester County, on the brief, for appellee.

       Note: Certiorari denied, Court of Appeals of Maryland, September 9, 1981.

   Melvin, J.,

delivered the opinion of the Court.

On November 21, 1979, a criminal information was filed in the Circuit Court for Dorchester County charging the appellant, Walter Green, Jr., with the theft of a lawn mower of the value of $300 or greater. Appellant was charged under Md. Code (1957, 1976 Repl. Vol., 1979 Cum. Supp.) Article 27, § 342. At a jury trial on February 4,1980, appellant was found guilty of the charge and subsequently sentenced to ten years imprisonment.

Six questions are presented:

"1. Was it error to deny Appellant’s challenge for cause of a juror who had been the victim of a similar larceny the week before the instant trial?

2. Did the court err in sustaining the State’s objection to the cross-examination of an accomplice as to whether the accomplice was guilty of charges which were stetted in return for the testimony of the accomplice?

3. Did the court err in not ordering a new trial ex mero motu upon discovering, after rendition of the verdict but before judgment, the conflict of interest inherent in the prosecutor’s prior criminal representation of the accused?

4. Was it error to deny Appellant’s motion for judgment of acquittal where Appellant’s conviction rested solely upon the uncorroborated testimony of an accomplice?

5. Did the court err in summarizing the evidence so as to highlight the State’s case and inject the court’s own view as to a crucial disputed fact?

6. Was it error to conduct the impaneling of the jury where the record fails to show that the Appellant was present or waived his right to be present?”

As we find no reversible error with respect to any of these questions, the judgment of conviction will be affirmed.

I

Appellant argues that it was reversible error for the trial court to refuse to strike for cause a potential juror whose store had been recently the object of a breaking and entering and a larceny of goods worth approximately $450.00. The venireman had told the judge, however, that this experience would not affect her ability to render a fair and impartial verdict, that she had no prejudice against people charged with stealing, and that she accepted "the presumption that .. . Green sits here innocent until proven guilty beyond a reasonable doubt”. After the court refused to strike for cause, appellant’s trial counsel exercised one of his peremptory challenges to remove the venireman from the jury. Thereafter, he used his remaining peremptory challenges and told the court he was "satisfied” with the panel. Under these circumstances, we see no reversible error. Garlitz v. State, 71 Md. 293, 301 (1889); see also McCree v. State, 33 Md. App. 82, 97-98 (1976).

II

Louis Addison had been charged as a codefendant in the theft of the lawn mower but pursuant to an agreement with the State the theft charged against him as well as an unrelated forgery charge in another county not involving the appellant had been placed upon the stet docket, in return for which Addison agreed to testify for the State in both cases. These facts were brought out by the prosecutor at the beginning of Addison’s testimony on direct examination. On cross-examination by appellant’s counsel, Addison repeated his understanding of the agreement. Referring to the stetted forgery charge in the other county, counsel then asked, "And are you guilty of that crime over there?” The following colloquy ensued:

"Q And are you guilty of that crime over there?

MR. NORTON [Prosecutor]: Objection.

THE COURT: Why do you wish to ask a question of this nature?

MR. LENTZ [Defense Counsel]: I think it’s important to ascertain the reason this man is testifying in what incrimination or what crimes he may or may not being let off on. If in fact he’s not guilty over there, being stetted or cooperating doesn’t mean much. But, if in fact he’s guilty over there, it means a lot towards this man.

THE COURT: You’re asking him, this witness, for an in court admission. I don’t know what the status is going to be eventually or ultimately to be like in Easton or Talbot County —

MR. LENTZ: He said Queen Anne’s.

THE COURT: I don’t think he should be asked a question to incriminate himself to that extent whereby he gives an in court confession.”

We perceive no reversible error. "The allowance or disallowance of certain questions on cross-examination normally rests within the sound discretion of the trial judge.” Kable v. State, 17 Md. App. 16, 30-31 (1971), cert. denied, 268 Md. 750 (1973). We find no abuse of discretion or arbitrary curtailment of the extent of cross-examination upon the proper subject of the reasons for the witnesses testifying for the State. Cf. Johnson and Walters v. State, 30 Md. App. 512, 515-516, cert. denied, 278 Md. 738 (1976).

Ill

After the jury announced its verdict on February 4, 1980, the prosecutor, in argument on the issue of bond pending sentence, told the court that he had represented appellant when he was convicted over two years earlier of petty larceny. Despite appellant’s failure to raise the issue at trial, on his motion for new trial (heard and denied February 15, 1980), or at the time of sentencing (April 7, 1980), he now argues that the trial court erred "in not ordering a new trial ex mero motu upon discovering . . . the conflict of interest inherent in the prosecutor’s prior criminal representation of the accused.” Appellant urges us to correct what he calls the "plain error” by reversing his conviction. As we see no "plain error”, we decline to do so.

The mere fact that as a private attorney the prosecutor had once represented appellant in an unrelated case did not, standing alone, result in a conflict of interest such as to disqualify that attorney from acting as prosecutor in the instant case. On the record before us, there is no claim or indication that at the time the instant charge was brought against appellant there existed any attorney-client relationship between him and the prosecutor, either with respect to the totally unrelated case more than two years before or any other matter. Nor is there any claim or indication that in investigating or prosecuting the present case the prosecutor made use of any confidential information he may have received from the appellant in the prior case. In short, we perceive no error to be corrected, "plain” or otherwise. See 31 A.L.R.3d 953, and cases there cited.

IV

Appellant contends that his conviction "rested solely upon the uncorroborated testimony of accomplices” and, therefore, the court erred in denying his motion for judgment of acquittal made at the close of the evidence. The State concedes that one of its witnesses, Louis Addison, was an accomplice and that appellant’s conviction could not rest upon his testimony alone unless corroborated by independent evidence tending either to identify the appellant with the perpetrators of the crime or to show the participation of the appellant in the crime itself. Brown v. State, 281 Md. 241 (1977). Appellant does not argue that other witnesses did not corroborate Addison’s testimony. He argues only that these other witnesses were also accomplices and, therefore, could not serve the corroborating function. The short answer to the argument is that the other witnesses, Sylvester Bolden and his wife, Ida Mae Bolden, were not shown to be accomplices. Consequently, their testimony properly corroborated that of Addison.

V

Appellant next contends that in its instructions to the jury the trial court violated Maryland Rule 757 c. That Rule provides in part that "the court may make such summation of or reference to the evidence as may be appropriate in order to present clearly to the jury the issues to be decided by them.” Appellant argues that in summarizing the evidence the trial court unfairly highlighted the State’s case and "injectfed] the court’s own view as to a crucial disputed fact.” There is no merit to the argument.

The record shows that several State witnesses identified from pictures the stolen lawn mower that was in appellant’s possession shortly after its theft from the owner — the owner himself being one of those witnesses. There was some disagreement, however, between the witnesses as to the color of the lawn mower. Appellant, therefore, contends that it was unfair for the court to tell the jury that, "Each of the witnesses, as you recall, saw the pictures and identified the tractor [lawn mower] as being the same tractor.” As this is what happened, we see nothing unfair about the statement. Moreover, the court further mentioned to the jury the color discrepancy and said: "Without my making too many comments on the color of this machine that was allegedly stolen from Ernest Elliott, I’m going to leave the testimony as you understand it to be from the various witnesses, that testimony concerning this machine.” Furthermore, the court in substance also told the jury, as required by Rule 757 c, "that they are the sole judges of the facts and that it is their function to determine the weight of the evidence and the credibility to be given to any witness.” Rule 757 c. We perceive no violation of the Rule.

VI

Appellant’s final contention is that because he was not present at three bench conferences, all at the request of appellant’s counsel, during the impaneling of the jury the judgment of conviction must be reversed.

The first bench conference occurred at the beginning of the voir dire examination. The record shows the following:

"THE COURT: Ladies and gentlemen, I’ve got about four or five questions to ask you on voir dire. If you want to respond in the affirmative to any of these questions, I would ask either or all of you to rise, if you would.

First question is: Do you know Walter Green, Jr., or any of those witnesses that have been called or will be called by the State.

Now, I don’t have those witnesses, Mr. Norton. I have been looking thru the file here but I haven’t seen them yet.

MR. NORTON [Prosecutor]: Yes, Your Honor, I’ll read off the list, if the Court would so wish.

Ernest S. Elliott, If you could stand.

MR. LENTZ [Defense Counsel]: Can we approach the bench, Your Honor?

THE COURT: Yes, sir.

AT THE BENCH

MR. LENTZ: Next thing is how they know him, related or what?

THE COURT: Okay.

MR. LENTZ: I Jsnow the probation officer, I would request he be stricken for cause.

MR. NORTON: I think that would be proper. He may well have Mr. Green in his office on probation.

THE COURT: What is his name?

MR. NORTON: Mr. Rogers, Hobert Rogers. We would have no objection to him being stricken for cause.

THE COURT: Which one — I’ll ask him — go thru the other State witnesses.

END OF CONFERENCE AT THE BENCH”

At the end of this conference, the prosecutor announced in open court the names of the prospective witnesses for the State and the court proceeded to ask the veniremen if any were known to them. During the proceedings, venireman Hobert Rogers, whom the court had not yet actually stricken for cause but whose striking the prosecutor had agreed at the bench conference not to oppose, announced that he knew the appellant. The following then occurred:

"THE COURT: How do you know him?

MR. LENTZ: Wait a minute, objected to. May we now — I objected to that question and I think we have already agreed he would be stricken.

THE COURT: He will be stricken. That’s the one you mentioned earlier at the bench.

All right, Mr. Rogers, you’re excused. This is a matter I had taken up earlier with Mr. Lentz and the State’s Attorney.”

Three other veniremen stated that they were close social friends of the victim and had known him for many years. A fourth venireman said she was the sister of the victim’s wife, who was a State’s witness. In answer to a question from appellant’s counsel, one of the four said that"[ i]n all honesty” she would "probably” "give great weight to” the victim’s testimony. The court thereupon excused her. Appellant’s counsel then asked to approach the bench and the second bench conference ensued.

At the second bench conference appellant’s counsel moved that the other three veniremen be struck for cause. The prosecutor did not object to striking the victim’s sister-in-law, but did object to striking the other two, pointing out that each had stated they would be able to render a fair and impartial verdict. The court granted the motion to strike all three for cause, the bench conference ended and the court resumed the voir dire examination of the remaining veniremen in open court.

One of the ensuing questions asked by the court was, "Has either juror this morning been a victim in any recent crime or any crime or has any member of your immediate family been a victim of any crime?” Two veniremen responded. One of them said she and her husband were victims of a robbery that occurred ten years ago in Ohio; the other (see, supra, part I of this opinion) that "last week” a store owned by her and her husband had been broken and entered and merchandise value at "around $450” had been stolen. Apparently she was not present during the breaking and entering. After completion of the questioning of these veniremen by both the court and defense counsel, the following occurred:

"MR. LENTZ [Defense counsel]: No further questions.

THE COURT: They are all the questions, aren’t they, Mr. Lentz?

MR. LENTZ: As far as I know, yes, sir.

Can we approach the bench, Your Honor.

AT THE BENCH

THE COURT: After the voir dire I have expressed to the jury do you have any other questions?

MR. LENTZ: No, sir. I would move to strike for cause Mrs. Kniskern. I think she was a victim of a robbery some 10 years ago.

I very seriously move to strike Mrs. Meredith for cause being a victim of a breaking and entering and larceny, which this case involves, just one week prior hereto.

THE COURT: That makes a total of six you have requested.

MR. LENTZ: Yes.

THE COURT: For cause.

MR. NORTON [Prosecutor]: Your Honor, we think, once again, Kniskern and Meredith, they are able to fairly judge and those events would have no influence on them in this case.

MR. LENTZ': I feel much stronger for Meredith than for Kniskern due to the recency of it.

MR. NORTON: I object. I think Mrs. Kniskern can certainly form an opinion and judgment.

❖ * *

THE COURT: Well, Mr. Lentz, they both indicated they can come back with a fair and impartial verdict even though they are victims of crime, one as recently as last week and one as long ago as 10 years ago. State’s Attorney objects. Court won’t strike them for cause.”

While still at the bench, the prosecutor’s motion to correct a typographical error in the charging document was granted without objection and the bench conference ended.

The prosecutor and defense counsel then proceeded to select the jury from a list of twenty-five veniremen, five of whom the court had already excused or stricken for cause. Using alternating challenges (Md. Rule 753 b 2) twelve jurors were seated without objection from appellant or his counsel. At that point, appellant had used only two of the four peremptory challenges available to him — one of which was used to remove one of the two veniremen whom the court had refused to strike for cause. Before the jury was sworn, appellant used his two remaining peremptory challenges to strike two of the previously accepted jurors, but he did not strike the other venireman the court had refused to strike for cause.

Citing Bunch v. State, 281 Md. 680 (1978), Haley v. State, 40 Md. App. 349, cert. denied, 284 Md. 744 (1978), and Md. Rule 724, appellant now argues that he had a right to be present at each of the three bench conferences to which we have referred and that his absence therefrom requires a reversal.

We shall assume for the purposes of this appeal that although present in the courtroom appellant was not present at any of the three bench conferences. We hold that under the circumstances presented, however, that his presence at the conferences was not required. We explain.

The right of a criminal defendant to be present at every stage of the trial is a common law right, preserved by Art. 5 of the Maryland Declaration of Rights, "is to some extent protected by the Fourteenth Amendment of the United States Constitution and is guaranteed by Maryland Rule 724.” Porter and Morris v. State, 289 Md. 349, 352 (1981). Maryland Rule 724 specifically includes the impaneling of the jury as a stage of the trial at which the defendant’s presence is required. Bunch v. State, supra, and Haley v. State, supra. But as said by the Court of Appeals in Porter and Morris, supra, at 353-354:

"The critical question in most cases involving a claimed denial of the right is whether the defendant’s absence occurred during a 'stage of the trial.’ Under our cases, ' whether a particular event occurred during a stage of the trial ordinarily involves a consideration of when the event occurred and what was involved. Normally, the right to be present does not attach until the process of impaneling the jury for a specific case begins... .
"On the other hand, not everything which happens during and after the impaneling of the jury is deemed a stage of the trial requiring the defendant’s presence. Hughes v. State, supra, 288 Md. at 225-226; Bunch v. State, supra, 281 Md. at 684-685, and cases there cited. The substance of what is involved must also be taken into account. Certain events, because of the nature of what occurs, are viewed as interruptions in the stages of the trial.” (Emphasis in original.) (Citation and footnote omitted.)

Maryland Rule 724 b 1 specifically provides that a "defendant need not be present .. . [a]t a conference or argument on a question of law.”

In Bunch v. State, supra, after the jury had been impaneled and during the actual trial, the court received a note from a juror saying, "Sir, one of the jurors may have to disqualify himself. Please advise.” The trial judge directed counsel to approach the bench and the note was discussed with counsel out of the presence of the defendant. At the bench conference, the trial judge, without objection from counsel, decided to send the juror in question a note telling him to write down the reasons why he may have to be disqualified. The judge told counsel, "that is the only way we can find the facts.” Thereafter the juror presented the judge with a note indicating that he had "become biased during the course of the trial ... for the prosecution (State).” At the resumed bench conference, again out of defendant’s presence, the question of whether to disqualify the juror was discussed. The prosecutor "in fairness to the defendant” thought the juror "should be excused at this time.” The defense attorney did not want the juror disqualified but, instead, moved for a mistrial. The judge denied both the prosecutor’s motion to disqualify the juror and defense counsel’s motion for a mistrial. It will be noted that the trial judge’s decision not to disqualify the juror in question was based on facts that had been adduced from the juror out of the presence of the defendant. In effect, the judge had conducted a voir dire examination of the juror, albeit in written form, out of the defendant’s presence when he had no opportunity to give aid to his counsel in developing those facts.

In reversing Bunch’s conviction the Court of Appeals stated, at 281 Md. 686-687:

"The provision in Maryland Rule 724, and its predecessor Rule 775, specifically including the impaneling of the jury as a stage of the trial at which the defendant’s presence is required, embodies the holding of the Supreme Court in Hopt v. Utah, supra, and Lewis v. United States, supra. The reason for the provision, as set forth by the Supreme Court in Hopt, is that the defendant, being entitled to an impartial jury, may give aid to his counsel and the court in the selection of who should be on the jury. This reason is just as applicable to a proceeding subsequent to the impaneling of the jury involving a determination of whether a juror should be excused for bias.” (Footnote omitted.)

In Hopt v. Utah, 110 U.S. 574, 4 S. Ct. 202, 28 L. Ed. 262 (1884), one of the cases whose holding the Court of Appeals said was embodied in Maryland Rule 724, the Supreme Court held that the defendant was deprived of "due process of law required by the Constitution” when, after six jurors were challenged for actual bias, the challenged jurors were examined out of the presence of the defendant to determine whether they were in fact free of bias. The Utah Criminal Code of Procedure in effect at the time prescribed grounds for challenge by either party of proposed jurors. The Code then provided that a challenge be "tried” by three impartial "triers,” not on the jury panel, and appointed by the court. At the "trial of the challenge” the challenged juror "may be examined as a witness to prove or disprove the challenge, and must answer every question pertinent to the inquiry,” § 249; "other witnesses may also be examined on either side, and the rules of evidence applicable to the trial of other issues govern the admission of evidence on the trial of the challenge,” § 250.

In Hopt, the "trial of the challenge” took place outside the courtroom out of the presence not only of the defendant and his counsel but of the trial judge. The Supreme Court, noting that the Utah Code required the defendant’s presence in a felony trial, said:

"The Criminal Code of Utah does not- authorize the trial by triers on grounds of challenge to be had apart from the court, and in the absence of the defendant. The specific provision made for the examination of witnesses 'on either side,’ subject to the rules of evidence applicable to the trial of other issues, shows that the prosecuting attorney and the defendant were entitled of right to be present during the examination by the triers. It certainly was not contemplated that witnesses should be sent or brought before the triers without the party producing them having the privilege, under the supervision of the court, of propounding such questions as would elicit the necessary facts, or without an opportunity to the opposite side for cross-examination.” (Emphasis added.) Id. at 577.

In this context, the Court went on to say, at 578:

"The requirement [of the Utah Criminal Code] is, not that he must be personally present at the trial by the jury, but 'at the trial.’ The Code, we have seen, prescribes grounds for challenge by either party of jurors proposed. And provision is expressly made for the 'trial’ of such challenges, some by the court, others by triers. The prisoner is entitled to an impartial jury composed of persons not disqualified by statute, and his life or liberty may depend upon the aid which, by his personal presence, he may give to counsel and to the court, and triers, in the selection of jurors. The necessities of the defence may not be met by the presence of his counsel only. For every purpose, therefore, involved in the requirement that the defendant shall be personally present at the trial, where the indictment is for a felony, the trial commences at least from the time when the work of empanelling the jury begins.”

Lewis v. United States, 146 U.S. 370, 13 S. Ct. 136, 36 L. Ed. 1011 (1892), the other case whose holding the Court of Appeals said was embodied in the Maryland Rule provision including the impaneling of the jury as a stage of the trial at which the defendant’s presence is required, involved the making of peremptory challenges. There the defendant’s counsel was required to make his peremptory challenges from a list of qualified veniremen at a time when neither they nor the defendant were present. The Court held:

"Thus reading the record, and holding as we do that making of challenges was an essential part of the trial, and that it was one of the substantial rights of the prisoner to be brought face to face with the jurors at the time when the challenges were made, we are brought to the conclusion that the record discloses an error for which the judgment of the court must be reversed.” Id. at 376.

Haley v. State, supra, involved the defendant’s absence from several bench conferences at which the court examined individual veniremen regarding their possible bias or impartiality. We held that "examination of prospective jurors on their voir dire is a stage of the trial at which the defendant has a right to be present,” id. at 353, and that "[i]t is only during such steps of jury selection as the voir dire and peremptory challenges that the defendant’s presence has any substantial meaning, for only then is he able to participate in the selection of the men and women who will try his case.” Id. at 351.

In the case at bar, the appellant was present during the entire voir dire examination of all the veniremen and had been "brought face to face” with them at the time all challenges were made. During none of the three bench conferences, at which we assume he was not present, were any veniremen questioned either orally (as in Haley) or in writing (as in Bunch). Each of the conferences concerned only legal argument of counsel based only on facts already adduced in appellant’s presence when he had the full opportunity to give aid to his counsel in developing those facts. Thus, the purpose of Rule 724 was fully met. Under the circumstances we hold that the three bench conferences here involved were closely akin to a hearing on a defendant’s motion for judgment of acquittal at the close of all the evidence. In Martin v. State, 228 Md. 311, 316-317 (1962), such a hearing held in chambers out of defendant’s presence was held to be "not a stage or step of the defendant’s criminal proceedings which requires his presence.” Obviously, the hearing could only involve the application of the law to facts already adduced in the defendant’s presence. The Court said:

"It is true that Article 5 of the Maryland Declaration of Rights gives the defendant in a criminal case the right to be present at every stage of his trial, but neither that article nor any other constitutional provision, State or Federal, requires the presence of the defendant when instructions to a jury are being considered and law arguments heard by the judge and counsel for the parties in chambers. Brown v. State, 225 Md. 349, 170 A.2d 300, and cases there cited. A motion for a directed verdict [judgment of acquittal] is a matter of law which involves the legal sufficiency of evidence.” Id. at 316.

Although Martin v. State was decided without reference to Maryland Rule 775, the precedessor to present Rule 724, we think that decision is fully applicable to the present case, for as already mentioned, the present rule, unlike its predecessor, specifically provides that the defendant’s presence is not required "[ a]t a conference or argument on a question of law.” In effect, the present rule embodies the Martin holding.

In sum, as the bench conferences in question involved only legal argument on the basis of facts already developed in defendant’s presence, we hold that his presence thereat was not required.

Judgment affirmed; costs to be paid by appellant.

      . Rule 724 provides:
      "a. When Presence Required.

      The defendant shall be present at every stage of the trial, including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as provided by these Rules.
      b. When Presence Not Required.

      A defendant need not be present:
      1. At a conference or argument on a question of law;
      2. When a nolle prosequi or stet is entered pursuant to Rule 782 (Nolle Prosequi and Stet);
      3. At a reduction of sentence pursuant to Rule 773 (Sentence — Review) or Rule 774 (Sentence — Revisory Power of Court);
      4. At any stage of the proceedings if the defendant is a corporation.

        c. When Presence Waived.

      A defendant initially at trial waives his right to be present when:
      1. He voluntarily absents himself after the trial has commenced, whether or not he has been informed by the court of his right to remain during trial; or
      2. He engages in conduct to justify his being excluded from the courtroom.”

      . The Court also quoted with approval from Lamb v. The State, 36 Wisconsin 424, involving similar facts:
      " We cannot but agree with the learned counsel for the plaintiff in error, that this mode of empanelling the jury largely impaired the right of peremptory challenge, essential in contemplation of law to the impartiality of the trial. For it is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose. The mode adopted gave no opportunity for comparison and choice between jurors, and little opportunity for observance of each juror, apparently essential to the exercise of a right so visionary and fanciful.’” (Emphasis added) Id. at 378.

        See Dean v. State, 46 Md. App. 536 (1980), where we held that in the jury selection process the defendant had been deprived of the right of “informed and comparative selection.”

      . Although not necessary to our decision, we note that appellant has no cause whatever to complain about the first two bench conferences, for at each of them the only matters discussed were the qualifications of certain veniremen challenged by appellant’s counsel. The court granted counsel’s request in each instance to strike them for cause.