author: Couch, J.,

text:
    ANNE ARUNDEL COUNTY, MARYLAND et al. v. WHITEHALL VENTURE et al.
    [No. 865,
    September Term, 1977.]

      Decided April 13, 1978.

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

      John M. Court, Assistant County Solicitor for Anne Arundel County, with whom was Michael R. Roblyer, County Solicitor, on the brief, for appellants.

      William C. Mitchell, Jr., with whom was C. Bowie Rose on the brief, for appellees.
   Couch, J.,

delivered the opinion of the Court.

This appeal involves the propriety of the issuance of a mandatory permanent injunction by the Circuit Court for Anne Arundel County enjoining the appellants, Anne Arundel County and the Board of Public Works of Anne Arundel County (hereinafter “the County”) from permitting or constructing an eight inch diameter sewer main along the south side of Route 50 at Whitehall Road, and commanding the County to immediately remove the eight inch diameter sewer main already constructed and to replace it with at least a ten inch diameter sewer main, rendering available sewer service by gravity to the greatest possible portion of appellees’ abutting property.

Appellees are the owners of approximately 75 acres of land south of U. S. 50, south and west of its intersection with Whitehall Road, in Anne Arundel County. This controversy involves approximately 15 acres of this land, which acreage lies in the westerly portion and fronts on Route 50. This property is zoned partially C-3 and partially R-2. Because of the contour of the ground approximately 70% of the acreage lies about 20 feet above the high mean water level with the ridge line running diagonally across in a northwest-southeast direction.

In 1973 appellees entered into negotiations with the County to bring, at the expense of appellees, an extension of its sewer main, which ran parallel to Route 50 on its north side, to its south side, apparently to service a gas station at the southwest corner of Route 50 and Whitehall Road. The County required appellees to furnish design plans after criteria had been established. The final agreement was executed in 1974 and the project was begun and completed. The project consisted of bringing an 18 inch main under Route 50 from north to south with a twelve inch main running west for some 100 feet and a 15 inch main running east. The County later installed a 15 inch main, running some 300 feet south on Whitehall Road, to serve another owner. Part of the design criteria required by the County was that “the sizing of the carrier pipe and sleeve shall be based on the peninsula drainage area bounded by Rte. 50 on the north and extending approximately 1800 feet west and 1300 feet east of the intersection of Whitehall Road and Rte. 50.” (It appears that the land in the area south of Route 50 around its intersection with Whitehall Road formed a peninsula.) The design information furnished to the County by appellees’ engineers proposed two pumping stations to serve that portion of the drainage area lying west of the ridge line (20 foot contour line), leaving the portion lying east thereof to be served by gravity. The gas station project was abandoned, and there are no improvements on any of appellees’ property, nor are there any applications for any sewer service thereto.

In 1976 the owners of Whitehall Inn, a restaurant located on the south side of Route 50 and east of appellees’ property, began to experience difficulty with their septic system and, together with certain owners of the property immediately to their east, filed a petition with the County to extend the sewer main on the south side of Route 50 to this property. In early 1977 the County’s Health Department declared the existing septic system a public nuisance and requested the County’s Public Works Department to expedite the requested extension.

While this petition was pending, appellees made application to the County Council for an amendment to the County’s Master Water and Sewer Plan to put an “Immediate Priority” classification on plans for sewer service to all of their property in the area. This amendment was subsequently approved by the Council over the County Executive’s veto. Thereafter, a public hearing on Whitehall Inn’s petition for extension was held, at which appellees’ trustee appeared and requested that gravity sewer service be made available to the property owned by appellees which lay west of Whitehall Inn and which was not included in the petition. Subsequently, there were meetings between appellees and representatives of the County’s Public Works Department concerning the plan to install an eight inch main. Appellees desired either a twelve inch or ten inch main, contending their property could not be gravity serviced by an eight inch main (thus requiring a pumping station). The County rejected appellees’ request and began construction of the eight inch main. Appellees immediately sought and obtained an ex parte injunction, causing the County to cease construction. The ex parte injunction was twice extended and then expired, whereupon the County resumed construction and completely finished the project before the court heard the matter of a permanent injunction on its merits. The chancellor granted the injunctive relief requested by appellees, and the County took this appeal.

Appellant presents five questions and appellees present four for our review. We find it unnecessary to answer each question presented individually in light of our answer to the question of whether the chancellor abused his discretion in issuing the mandatory injunction.

It is well established that the right to an injunction is not ex debito justitiae, and that the application for an injunction is addressed to the sound discretion of the chancellor. Williams v. Mayor and City Council of Baltimore, 128 Md. 140, 97 A. 140 (1916). Our review of the propriety of the issuance of an injunction is confined, therefore, to whether the chancellor abused his sound discretion.

We note further that the exercise of that sound discretion in issuing a mandatory injunction is to be exercised only with extreme caution. Baltimore & Phila. Steamboat Co. v. Starr Methodist Protestant Church, 149 Md. 163, 130 A. 46 (1925). An injunction is to be issued only where the intervention of equity is necessary to prevent an irreparable injury. Coster v. Dept. of Personnel, 36 Md. App. 523, 526, 373 A. 2d 1287, 1289 (1977). The “very function” of an injunction is to prevent irreparable injury, and “ ... the remedy will not be awarded where it appears to the satisfaction of the court that the injury complained of is not of such character.” Id. at 526, 373 A. 2d at 1289.

The mere existence of an injury, however, even if irreparable, is no guarantee that injunctive relief will issue. The existence of some right, which will be irreparably injured, is a prerequisite to the extraordinary relief of an injunction. Mayor and City Council of Balt. v. Employer’s Ass’n., 162 Md. 124, 159 A. 267 (1932).

With respect to issuance of an injunction generally, Symons, Pomeroy’s Equity Jurisprudence (5th Ed. 1941), § 1338, states:

“In determining whether an injunction will be issued to protect any right of property, to enforce any obligation, or to prevent any wrong, there is one fundamental principle of the utmost importance, which furnishes the answer to any questions, the solution to any difficulties which may arise. This principle is both affirmative and negative, and the affirmative aspect of it should never be lost sight of, any more than the negative side. The general principle may be stated as follows: Whenever a right exists oris created, by contract, by the ownership of property or otherwise, cognizable by law, the violation of that right will be prohibited, unless there are other considerations of policy or expedience which forbid a resort to this prohibitive remedy.” (Emphasis added.)

See also Coster v. Dept. of Personnel, supra at 526, 373 A. 2d at 1289.

Our review of the chancellor’s exercise of his discretion in granting the mandatory injunction, in light of the principles set out above, and within the confines of Maryland Rule 1086, leads us to the conclusion that because appellees possessed no cognizable right that had been denied or adversely affected, the chancellor abused his discretion.

At the outset, it must be made clear that the issue before this Court and the chancellor below is not whether appellees are being deprived of any and all sewer service to their property as a result of the eight inch pipe. Both parties agree that the eight inch pipe would be sufficient to provide sewer service to all of appellees’ property, if a pumping station were installed.

The real issue presented in this case is whether the County, by laying an eight inch pipe, has invaded or denied some property, contractual or legal right possessed by appellees. This issue is, in itself, two issues: whether the appellees possessed a right to gravity flow sewer, and whether, by laying pipe that precludes gravity flow to appellees’ property, the County has invaded some other right of appellees.

The chancellor apparently concluded that the character of the public improvement resulted in an invasion of property rights in that it will not provide sewer service to the entire property without a costly pumping station. The cost of this station, according to the chancellor, would equal or exceed the value of the land. The result would be to make the land monetarily unsellable with any degree of profit, and prevent use of the land under its present zoning classification.

The record does not support the chancellor’s findings of fact that the cost of the pumping station precludes a reasonable profit, and that the cost of the pumping station exceeds the value of the land. The only testimony as to the value of the land was that it could be sold for $120,000 to $135,000. Compared with the accepted $75,000 cost of the pumping station, the value of the land far exceeds the expense of the pumping station. There was no other testimony as to the lack of profitability, or the inability to sell the land. The chancellor’s findings are unsupported by the record, and therefore his findings that the use and saleability of the land are adversely affected by the County’s actions are clearly erroneous.

Regardless of the cost of the station in relation to the value of the land, appellees made no showing that that high cost interfered with their present use of the land. Appellees’ position is that the cost of the pumping station interferes with their future ability to develop the land at its present zoning classification. This asserted “invasion” of their property rights is at best highly speculative. Appellees have failed to show present plans or preparations for such development. As the Court of Appeals said in Kennedy-Chamberlin Co. v. Snure, 212 Md. 369, 378, 129 A. 2d 142, 147 (1957), “The evidence in this case does not reveal any present invasion of property rights of the appellants.”

Appellees argue that regardless of whether a property right was adversely affected by the County’s actions, they have a right to a particular type of sewer service — gravity flow.

In general, appellees possess no right to a particular type of sewer service simply by virtue of their ownership of sewerable land. In Kennedy-Chamberlin Co. v. Snure, the Court of Appeals said:

“The propriety, extent and character of public improvements which lie within the discretion of municipal authorities are not subject to judicial interference unless exercised arbitrarily, oppressively or fraudulently, and they result in invasion of property rights.”

See also 13 McQuillen, Municipal Corporations (3rd Ed., 1971 Rev. Vol.), § 37.25. Of itself, there is no right to a particular type of sewerage. The County’s choice of a particular size pipe can be interfered with by the courts only if the improvement as constituted invades some property right, (a contention we have already rejected) or if there is some legal or contractual right to a particular type of improvement.

Appellees have noted in their brief that their property was included in the “Immediate Priority” classification for sewerage priority by Amendment 11 to County Council Bill 139-76. Appellees contend that this classification in effect means the property is sewerable by gravity.

This classification does not provide a “right” to gravity service. The definition of “immediate priority”, as provided in the County comprehensive plan for sewerage and water supply, adopted in § 13-400 (1) of the Anne Arundel County Code, amended by Bill 139-76, is “A work or works ... for which the beginning of construction is scheduled to start within two years following the working date of the plan----” Of itself, classification of a project as “Immediate Priority” does not give a “right” by operation of law to gravity sewer service.

As we have mentioned, appellees’ chief reliance in this case is on the existence of a contractual or quasi-contractual right. This “right” is based on appellees’ actions in bringing the sewer line from the north to the south side of Route 50. Those actions were based on an agreement made between the County and appellees, which would furnish appellees a contractual “right”. That “right”, however, is encompassed by the agreement.

The evidence introduced supports a finding that the “right” which appellees possess by virtue of that agreement is only to adequate sewer service to its property. The record does not support a finding that the agreement contemplated the type or manner of sewer service to appellees’ property. Appellees concede that the eight inch pipe can provide adequate service, if a pumping station is provided. Given that concession, there is no denial or adverse effect on appellees’ contractual right to adequate service by the County.

In a similar vein, appellees argue that appellants are estopped from laying an eight inch pipe. Appellees contend that they took actions in bringing the sewer line to the south side of Route 50, to their financial detriment, relying on the representations made by the County or its agents. City of Balt. v. Crane, 277 Md. 198, 352 A. 2d 786 (1976). Whether couched in terms of “contract” or “estoppel”, the record shows only a representation by the County that they would lay pipe of sufficient size to provide adequate service to appellees’ land. As we have said, adequate service can be provided by the-present eight inch pipe, if a pumping station is provided. The appellees point to no evidence in the record of a representation by the County as to the type or manner of that service.

In their brief appellees cite several cases from this and other jurisdictions where courts have applied an estoppel against a municipal corporation. City of Baltimore v. Crane, supra; Gaver v. Frederick County, 175 Md. 639, 3 A. 2d 463 (1939); City Railway Co. v. Citizen’s Street Ry. Co., 166 U. S. 557, 41 L. Ed. 1114, 17 S. Ct. 653 (1897); State ex inf. McKittrick v. Springfield City Water Co., 345 Mo. 6, 131 S.W.2d 525 (1939); Bregar v. Britton, 75 So. 2d 753 (Fla. 1954); City of Naples v. Crans, 292 So. 2d 58 (Fla. App. 1974); State ex rel. A. Hynek & Sons Co. v. City of Racine, 267 Wisc. 309, 64 N.W.2d 741 (1954); State ex rel. Cox v. McIlravy, 105 Neb. 651, 181 N. W. 554 (1921); Russell Dairy Stores v. City of Chippewa Falls, 272 Wise. 138, 74 N.W.2d 759 (1956).

We have no quarrel with the basic proposition that a municipal corporation may be estopped from taking certain actions. But the cases cited by appellees are distinguishable from the case at bar in one important aspect. In those cases, the municipal corporation was estopped from taking action contrary to an express or implied representation. Here, appellees attempt to estop the County from taking an action not contrary to any express or implied representation already made by the County. The size of the pipe was never a subject of an implied or express representation by the County. Therefore, in contradistinction to those cases cited, appellees cannot be said to rely on such a representation.

In terms of estoppel, there is an additional reason why the appellees have failed to establish a right to gravity service. To rely on a representation so as to create an estoppel, the relying party must have had a right to rely. Chesapeake Homes, Inc. v. McGrath, 249 Md. 480, 240 A. 2d 245 (1968). The record shows the appellees’ own engineer, in proposing the sewerage plan that was drawn as a basis for the original agreement to bring sewerage to the south side of Route 50, contemplated two pumping stations would be needed. Assuming for the moment that the County represented that gravity flow would be provided, appellees had no right to rely on these representations in the face of their engineer’s report.

In summary, the record fails to support a finding that the County, by laying eight inch pipe, has denied or adversely affected a right — contractual, property, or by operation of law — of the appellees. Without such denial of a right, we must hold that the chancellor abused his discretion in granting the injunctive relief below.

Inasmuch as the chancellor dismissed the County’s counterclaim for damages on the basis that appellees were entitled to injunctive relief, reversal of the chancellor as to the propriety , of the injunction dictates reversal as to the dismissal of the counterclaim. We shall remand the case for a hearing on the County’s entitlement to recover damages on the counterclaim.

Decree reversed; injunction dis- ' solved; remanded for ruling on appellants’ counterclaim.

Costs to be paid by appellees.

      . Prom or as a debt of justice; in accordance with the requirement of justice; of right; as a matter of right. * * * (q.v.) 3 Bl. Comm. 48, 67.

      . Traditionally, the non-existence of an adequate remedy at law was a prerequisite to injunctive relief. An adequate remedy at law in the form of damages is, at present, not an absolute bar to injunctive relief. Md. Rule BB-76.

      . The questions are similar, but not synonymous. The former, on which appellees chiefly rely, is that they have a direct right to gravity flow. The latter question, on which the trial court relied, is that appellants’ choice of pipe size adversely affects a property right — use and enjoyment — held by appellees, a more indirect effect.

      . In actual effect, the pumping station would likely facilitate the use of the land. It will provide adequate service to the entire fifteen acres. There is some doubt as to the sewerability of a portion of that tract by gravity, even if the ten or twelve inch pipe were to be laid.
      As to the cost of the pumping station, appellees, or whoever develops the land, will be able to recover some of the cost as credits against various capital connection charges and assessments, when the land is developed. § 17-611 of the Anne Arundel County Code.


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    JAMES CHESTER PHIPPS v. STATE OF MARYLAND
    [No. 875,
    September Term, 1977.]

      Decided April 13, 1978.

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

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

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Edwin H. W Harlan, Jr., State’s Attorney for Harford County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The Constitution of the United States is not an antiquated historical document, something that pertained to our forefathers but of little or no current significance. It is the viable foundation upon which our country was built and still lives. Aside from its being the cornerstone of the nation, perhaps its greatest virtue is its malleability, the ingredient which permits the Constitution to be molded to conform to contemporary standards, rather than being a rigid ancient mandate out of step with the times. The then Governor of New York, Franklin D. Roosevelt, in a radio address on March 2,1930, observed that the “Constitution has proved itself the most marvellously elastic compilation of rules of government ever written.”

In the instant case, we are asked by the appellant, James Chester Phipps, to declare that in the light of present societal standards the sentence of life imprisonment for the crime of rape in the first degree is a “cruel and unusual punishment,” debarred by the Eighth Amendment.

Disclaiming knowledge of violating Md. Ann. Code art. 27, §§ 462 (first degree rape), 463 (second degree rape), 464 (first degree sexual offense), 464A (second degree sexual offense), 464B (third degree sexual offense), 464C (fourth degree sexual offense), 553 (sodomy), 337 (kidnapping), 486 (robbery), 341 (larceny of goods of the value of less than $100.00), and 467 (receiving stolen goods of the value of less than $100.00), and common law assault and battery, because of his alleged intoxication, the appellant entered an Alford plea in the Circuit Court for Harford County of guilty to the charge of first degree rape.

Judge Albert Close explained to Phipps, in almost laborious detail, the rights that are waived by such a plea, as well as the fact that the penalty that could be imposed for the crime was life imprisonment. After satisfying himself that there was a factual basis for the plea, Judge Close accepted it. The State then, as it had agreed to do in a plea bargain, nolle prossed the remaining ten (10) counts of the indictment.

After obtaining a pre-sentence investigation, the court, on March 18,1977, imposed a sentence of life imprisonment upon Phipps. The judge recommended that therapy for Phipps be provided by the Division of Correction.

Within a week, Phipps wrote a letter to the trial judge in which he said in part:

“Please be informed of my right to recant my plea of Guilty to the charge of Rape.
My right’s were infringed upon from the day of my arrest wich i can prove.”

Judge Close treated the letter as a petition for post conviction review.

A hearing on the matter was held before Judge Brodnax Cameron, Jr. Phipps set out thirteen (13) supposed errors, none of which had any substance, and his assigned counsel raised the additional issue of the constitutionality vel non of the imposition of a life sentence for the offense of first degree rape. Judge Cameron held that the punishment of life imprisonment for the crime of first degree rape is not unconstitutional, and he denied post conviction relief. We granted leave to appeal and transferred the case to the regular docket.

In this Court, Phipps reiterated his attack on the constitutionality of Md. Ann. Code art. 27, § 462 (b) as applied to himself. He wove into his argument a “but for” contention which points out that absent certain highly relevant testimony the offense would have been that of second degree rape punishable by a maximum term of twenty (20) years imprisonment.

We shall deal first with the interlarded “but for.” The record reveals that the victim said that Phipps demanded that she yield to his sexual advances, posed to her in rather explicit, earthy language. When she declined, he exclaimed, “Don’t make me hurt the baby — don’t make me have to hurt the baby.” His reference was to the three (3) year old daughter of the prosecutrix who clung to her breast while the prosecutrix was ravished by Phipps.

Section 462, concerned with first degree rape, provides in pertinent part:

“(a) What constitutes. — A person is guilty of rape in the first degree if the person engages in vaginal intercourse with another person by force against the will and without the consent of the other person and:
(1) With another person by force or threat of force against the will and without the consent of the other person and:
(iii) Threatens or places the victim in fear that the victim or any person known to the victim will be imminently subjected to death, suffocation, strangulation, disfigurement, serious physical injury ____” tl (Emphasis supplied.)

The gravamen of the offense in the instant case is the very threat that Phipps would like to read out of the record so as to reduce the charge to second degree rape. The implied threat of Phipps to harm his victim’s infant child is what caused her to submit to him and is the very element which placed the sexual attack within the ambit of Section 462 (a) (1) (iii). Moreover, the victim testified that to her the threat meant that Phipps was going to “Beat us. Kill us. I didn’t ask.”

In Crenshaw v. State, 13 Md. App. 361, 373, 283 A. 2d 423, 430 (1971), cert. denied, 264 Md. 746 (1972), we held that a mother’s instinct for the safety of her child together with her rapist’s threats to harm the child if the victim did not surrender to his illicit sexual advances constituted force and coercion. Crenshaw was, decided under a prior statute relative to rape. What we said in Crenshaw, however, applies to the later Article 27, § 462 (a) (1) (iii).

The appellant’s “but for” contention is the same as arguing that “but for” the negative tone of the Ten Commandments all the acts therein condemned would be permissible. The fact remains that the acts forbidden by the Ten Commandments are not sanctioned. No amount of “supposing” or analyzing of hypothetical evidence will eradicate the positive testimony of the victim and reduce the offense to anything other than that to which the appellant pled guilty.

Phipps’s constitutional assault on the Maryland statute commences with the Eighth Amendment which proscribes “cruel and unusual punishments.” That prohibition is, of course, applicable to the States as well as to the federal government. Coker v. Georgia, 433 U. S. 584, 97 S. Ct. 2861, 53 L.Ed.2d 982 (1977); Robinson v. California, 370 U. S. 660, 82 S. Ct. 1417, 8 L.Ed.2d 758 (1962); Bigley v. Warden, 16 Md. App. 1, 294 A. 2d 141 (1972). A similar proscription is included in the Maryland Declaration of Rights, Articles 16 and 25.

The historical background of the phrase “cruel and unusual punishment” was discussed by the Supreme Court of the United States in Gregg v. Georgia, 428 U. S. 153, 169-71, 96 S. Ct. 2909, 2923-24, 49 L.Ed.2d 859, 872-73 (1976). The Court said:

“The phrase first appeared in the English Bill of Rights of 1689, which was drafted by Parliament at the accession of William and Mary. See Granucci, ‘Nor Cruel and Unusual Punishments Inflicted: ’ The Original Meaning, 57 Calif. L. Rev. 839, 852-853 (1969). The English version appears to have been directed against punishments unauthorized by statute and beyond the jurisdiction of the sentencing court, as well as those disproportionate to the offense involved. Id., at 860. The American draftsmen, I1 who adopted the English phrasing in drafting the Eighth Amendment, were primarily concerned, however, with proscribing ‘tortures’ and other ‘barbarous’ methods of punishment.’ [s/c] Id., at 842. [Footnote omitted.]
But the Court has not confined the prohibition embodied in the Eighth Amendment to ‘barbarous’ methods that were generally outlawed in the 18th century. Instead, the Amendment has been interpreted in a flexible and dynamic manner. The Court early recognized that ‘a principle to be vital must be capable of wider application than the mischief which gave it birth.’ Weems v. United States, 217 U. S. 349, 373 [30 S. Ct. 544, 551, 54 L. Ed. 793, 801] (1910). Thus the Clause forbidding ‘cruel and unusual’ punishments ‘is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice.’ Id., at 378 [30 S. Ct. at 553, 54 L. Ed. at 803]. See also Furman v. Georgia, 408 U. S., at 429-430 [92 S. Ct. at 2823-24, 33 L.Ed.2d at 459-60] (Powell, J., dissenting); Trop v. Dulles, 356 U. S. 86, 100-101 [78 S. Ct. 590, 597-98, 2 L.Ed.2d 630, 642-43] (1958) (plurality opinion).”

Subsequently, the Court, in Coker v. Georgia, 433 U. S. at 592, 97 S. Ct. at 2865, 53 L.Ed.2d at 989, opined:

“[T]he Eighth Amendment bars not only those punishments that are ‘barbaric’ but also those that are ‘excessive’ in relation to the crime committed. Under Gregg, a punishment is ‘excessive’ and unconstitutional if it (1) makes no measurable contribution to acceptable goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime. A punishment might fail the test on either ground.”

The Court, speaking through Mr. Justice White, went on to say that the evaluation of a sentence must be based on objective factors, rather than the subjective views of individual judges. Id.

Public attitudes, reflected by the legislative determination of punishment of a particular criminal offense, are also a material consideration in the court’s function of ascertaining whether a punishment is condemned to crossing the River Styx into constitutionally mandated oblivion.

“To this end, attention must be given to the public attitudes concerning a particular sentence — history and precedent, legislative attitudes, and the response of juries reflected in their sentencing decisions are to be consulted.” Id. at 592, 97 S. Ct. at 2866, 53 L.Ed.2d at 989.

The statute under attack in the case sub judice is but one part of the General Assembly’s recognition of the existence of different degrees of rape with prescribed corresponding punishment.

The validity of legislatively determined punishment is presumed, Gregg v. Georgia, 428 U. S. at 175, 96 S. Ct. at 2926, 49 L.Ed.2d at 876, and courts “may not require” that “a democratically elected legislature” enact the least severe possible penalty as the sanction for a crime. As long as the punishment that is decreed conforms “with the basic concept of human dignity,” 428 U. S. at 182, 96 S. Ct. at 2929, 49 L.Ed.2d at 880, and is neither “cruelly inhumane [n]or disproportionate,” 428 U. S. at 175, 96 S. Ct. at 2926, 49 L.Ed.2d at 876, to the offense, there is no violation of the Eighth Amendment, Gregg v. Georgia, supra, nor of the Maryland Declaration of Rights, Articles 16 and 25.

When the judgment of the people, handed down through their duly elected State Senators and Delegates in the form of a statute, is subjected to assault, a “heavy burden” is borne by the attacker. Gregg v. Georgia, 428 U. S. at 175, 96 S. Ct. at 2926, 49 L.Ed.2d at 876.

Mr. Justice Stewart penned in Gregg v. Georgia, 428 U. S. at 175-76, 96 S. Ct. at 2926, 49 L.Ed.2d at 876:

“This is true in part because the constitutional test is intertwined with an assessment of contemporary standards and the legislative judgment weighs heavily in ascertaining such standards: ‘[I]n a democratic society legislatures, not courts, are constituted to respond to the will and consequently the moral values of the people.’ Furman v. Georgia ... [408 U. S. at 383, 92 S. Ct. at 2800-01, 33 L.Ed.2d at 432 (1972)] (Burger, C. J., dissenting). The deference we owe to the decisions of the state legislatures under our federal system, id., at 465-470 [92 S. Ct. at 2841-44, 33 L.Ed.2d at 480-83] (Rehnquist, J., dissenting), is enhanced where the specification of punishments is concerned, for ‘these are peculiarly questions of legislative policy.’ Gore v. United States, 357 U. S. 386, 393 [78 S. Ct. 1280, 1284-85, 2 L.Ed.2d 1405, 1410] (1958). Cf. Robinson v. California, 370 U. S., at 664-665 [82 S. Ct. at 1419-20, 8 L.Ed.2d at 758 (1962)]; Trop v. Dulles, 356 U. S., at 103 [78 S. Ct. at 599, 2 L.Ed.2d at 643-44 (1958)] (plurality opinion); In re Kemmler, 136 U. S., at 447 [10 S. Ct. at 938, 34 L. Ed. at 524 (1880)]. Caution is necessary lest this Court become, ‘under the aegis of the Cruel and Unusual Punishment Clause, the ultimate arbiter of the standards of criminal responsibility ... throughout the country.’ Powell v. Texas, 392 U. S. 514, 533 [88 S. Ct. 2145, 2154-55, 20 L.Ed.2d 1245, 1267-68] (1968). A decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment. The ability of the people to express their preference through the normal democratic processes, as well as through ballot referenda, is shut off. Revisions cannot be made in the light of further experience. See Furman v. Georgia, supra, at 461-462 [92 S. Ct. at 2839-40, 33 L.Ed.2d at 477-78] (Powell, J., dissenting).

Phipps avers that he “is serving an unconstitutional and excessive sentence based on the two-pronged test applied in Coker \v. Georgia, supra\.” We have an entirely different view.

We think that a sentence of life imprisonment for the crime, of first degree rape is a “reasonable contribution to acceptable goals of punishment.” The life sentence may only be imposed when an accused has been found guilty of employing the most reprehensible of methods in carrying out the heinous offense of vaginal intercourse against his victim’s will. Those most reprehensible methods include 1) the use of a dangerous or deadly weapon, or an article believed by the victim to be such a weapon; 2) serious physical injury which could result in the death of the victim; 3) threats of imminent injury to the victim or persons known (and obviously connected by a bond of affection) to the victim; and 4) when the accused is aided by another person in the rape of the victim. Md. Ann. Code art. 27, § 462.

When the basic elements of imminent peril to the life of the victim or her loved ones is removed or there is no third-person aider or abetter in the crime, it is reduced in seriousness and in punishment to a maximum of twenty (20) years imprisonment. Md. Ann. Code art. 27, § 463.

The legislatively mandated penalty of confinement “for not more than the period of his natural life” represents the will of the people of Maryland that its female citizens be protected in their persons from violation. Recognizing that mere words, printed in a Code of Criminal Laws, will not, in and of themselves, cause a cessation of rape any more than the Ten Commandments have halted sin, the General Assembly has determined that those who so violate the victim, also violate § 462. While “ ‘[r]etribution is no longer the dominant objective of the criminal law,’ Williams v. New York, 337 U.S. 241, 248 [69 S. Ct. 1079, 1084, 93 L. Ed. 1337, 1343] (1949),” it is neither “a forbidden objective nor one inconsistent with our respect for the dignity of men.” Gregg v. Georgia, 428 U. S. at 183, 96 S. Ct. at 2930, 49 L.Ed.2d at 880.

Paraphrasing Mr. Justice Stewart in Gregg, the General Assembly articulated the will of the people of Maryland that life imprisonment is the appropriate peine forte et dure for the grievous affront to its feminine populace.

We hold that the imposition of a life sentence for a violation of Md. Ann. Code art. 27, § 462, rape in the first degree, is constitutionally permissible.

Judgment affirmed.

Costs to be paid by appellant.

      . See North Carolina v. Alford, 400 U. S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162 (1970), which sanctions such pleas. One usually enters a guilty plea to a charge, notwithstanding protestations of innocence, in order to avoid prosecution on other charges or evade more severe penalties.

      . Phipps avers that he has received no therapy.

      . Section 462 was amended by 1977 Md. Laws, ch. 2920. Subsection (iii) is now subsection (3). There were no substantive changes.

      . There was additional evidence from the prosecutrix that the appellant told her that he “had been involved in many incidents in the past in which drinking was involved in which there was some fighting and so forth, but never this kind of behavior. There was no history of in particular sexual deviations or that sort of thing.”

      . Article 16 provides:
      “That sanguinary Laws ought to be avoided as far as it is consistent with the safety of the State; and no Law to inflict cruel and unusual pains and penalties ought to be made in any case, or at any time, hereafter.”

      . Article 25 states in slightly different language:
      “That excessive bail ought not to be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted, by the Courts of Law.”

      . The “American draftsman” was Representative (later President of the United States) James Madison. See Bernard Schwartz, The American Heritage History of the Law in America, ch. II (1974). See also Baker v. State, 39 Md. App. 133, 383 A. 2d 698 (1978).

      . A review of the Codes of several States indicates that a life sentence is permissible in twenty-five (25) of them and the District of Columbia, including: Alabama, 1977 Ala. Acts No. 607, § 2310(2) punishable under § 1225(l)(a); Arizona, Ariz. Rev. Stat. § 13-614; Arkansas, Ark. Stat. Ann. § 41-1803 punishable under § 41-901; District of Columbia, D.C. Code § 22-2801; Florida, Fla. Stat. Ann. § 794.011 (West); Idaho, Idaho Code § 18-6104; Illinois, Ill. Ann. Stat. Ch. 38, § 11-lc punishable under Ch. 38, § 1005-8-1 (Smith-Hurd); Iowa, Iowa Code Ann. § 902.1 et seq. (West); Kentucky, Ky. Rev. Stat. § 510.040(2) punishable under § 532.060(2)(a); Louisiana, La. Rev. Stat. Ann. § 14:42 (West); Massachusetts, Mass. Ann. Laws ch. 265, § 22 (Michie/Law. Co-op); Michigan, Mich. Comp. Laws Ann. § 750.520b; Mississippi, Miss. Code Ann. § 97-3-65(1) and § 97-3-65(2); Missouri, Mo. Rev. Stat. § 559.260; Nevada, 1977 Nev. Laws ch. 598, § 3; New Mexico, N.M. Stat. Ann. § 40Á-9-21A punishable under § 40A-29-3A; North Carolina, N.C. Gen. Stat. § 14-21(1) and § 14-21(2); Ohio, Ohio Rev. Code Ann. § 2907.02(B) (Anderson); Oklahoma, Okla. Stat. tit. 21, § 1115; Rhode Island, R.I. Gen. Laws § 11-37-1; Tennessee, Tenn. Code Ann. § 39-3702; Texas, Tex. Penal Code Ann. tit. 5, § 2103 (Vernon); Utah, Utah Code Ann. § 76-53-18(a); Virginia, Va. Code § 18.2-61; Washington, Wash. Rev. Code Ann. § 9.79.170(2); Wyoming, Wyo. Stat. § 6-63(Á).

      . “strong and severe punishment."


author: Wilner, J.,

text:
    LARRY HUGH THOMAS v. STATE OF MARYLAND
    [No. 901,
    September Term, 1977.]

      Decided April 13, 1978.

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

      Andrew Jay Graham, Assigned Public Defender, with whom were ¿ramón & Graham on the brief, for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Charles E. Wehland, Stated Attorney for Howard County, Ronald Spahn

      and Stephen J. Smith, Assistant State’s Attorneys for Howard County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Larry Hugh Thomas was convicted of rape and battery. He was sentenced to life imprisonment for the rape and a consecutive term of 10 years for the battery. On appeal, he complains that:

(1) Evidence (a house key) obtained as the result of his arrest on an unrelated charge should have been suppressed;

(2) An incriminating letter that he wrote, while incarcerated at the Howard County Detention Center, to another inmate at that Center was unlawfully seized and should have been suppressed; and

(3) The court erred in convicting him of both rape and battery, and in imposing consecutive sentences for those convictions.

(1) Suppression of the Key

Shortly after 6:00 p.m. on April 25, 1976, two women had their pocketbooks stolen from an establishment in Columbia known as the Slayton House. From a description given by one of the women and a witness who had seen a man carrying a pocketbook out of the Slayton House, a broadcast was put out on a police radio, advising the police, to be on the lookout for a larceny suspect described as a Negro male, eighteen years old, approximately 5'8" tall, having a moustache, wearing red pants and a red and white striped shirt, and appearing to be intoxicated.

Shortly after hearing that broadcast, Officer Charles Gable observed a person matching that description enter a grocery store. When the person, who turned out to be appellant, left the store, Gable accosted him and “asked him to come with me up to the Slayton House, which he agreed to do.” Gable escorted appellant to the Slayton House in the patrol car, reading him the Miranda warnings on the way. When they arrived, one of the witnesses identified appellant, whereupon he was formally arrested, charged with petty larceny, and taken to police headquarters.

There, he was searched, and among other items taken from him was a silver-colored key. For purposes of identification, Officers Dennis L. Pruitt and Charles M. Gable scratched their initials onto the key — “DLP” and “CMG”. Appellant was then transported to the County Detention Center, from which he was released the next day. A key was returned to appellant upon his release.

Around 11:00 on the following evening (April 26), Ms. S, the rape victim, left her home in Columbia to get a bite to eat. Finding the restaurant closed, she was returning to her car on the parking lot when two men approached her. After a short innocuous conversation, one grabbed her pocketbook and threw it to the other, who took off with it and apparently has not been heard from since. The other man grabbed her hand and, placing his other hand in his pocket so as to make it appear to Ms. S that he had a gun, led her to a wooded area near the Interfaith Center. There, keeping her in fear of her life, he raped her once and tried, without success, to rape her again and to perform various unnatural sex acts upon her. He also struck her several times in the face. Following this, he led her to another area about fifty feet away where he threw her to the ground, choked her, and beat her severely across the face with a stick and a vacuum cleaner wand. As a result, her face was a bloody mess, and her nose was broken.

When the attack was over, the assailant departed, Ms. S stumbled to a nearby apartment house, and the police were called. Officer John Martin arrived and made a search of the areas where the attack occurred. In addition to recovering some of Ms. S’s clothing that had been left behind, he found a stick and a key — a silver-colored key that had scratched on it the initials “DLP” and “CMG”. Corporal Mark Paterni, one of the officers assigned to investigate the rape, noticed the key back at the police station, as well as the markings on it, learned in some manner (not disclosed in the record) of Officer Pruitt’s connection with the key, spoke to Pruitt and presumably learned from him of appellant’s connection with the key, and, based upon that information, obtained an arrest warrant for appellant. Paterni and several other officers, including Detective R. W. Roby, made the arrest at appellant’s home. Roby took the key with him, and found that it unlocked the front door of appellant’s home. At trial, the key was admitted into evidence.

Appellant claims that the key should have been suppressed because it was the product of his arrest on April 25, which, he says, was unlawful. He argues that the earlier arrest was unlawful because (i) it was effected without benefit of a warrant, and (ii) the crime, a misdemeanor, was not committed within the presence of the arresting officer. Thus, he argues, the key was initially seized from him and marked improperly, that it therefore represents “fruit of the poisonous tree”, and is constitutionally excludable as evidence under the doctrine announced in Wong Sun v. United States, 371 U. S. 471 (1963).

The simplest answer to this contention is that there was nothing unlawful about appellant’s earlier arrest. It was fully authorized by Md. Annot. Code art. 27, § 594B. Subsection (d) thereof allows a police officer to arrest a person without a warrant if he has probable cause to believe:

(1) That an offense listed in subsection (e) of this section has been committed, and

(2) That the person has committed such offense, and

(3) That unless the person is immediately arrested, (i) He may not be apprehended, or

(ii) He may cause injury to the person or damage to the property of one or more other persons, or

(iii) He may tamper with, dispose of, or destroy evidence.”

One of the offenses listed in subsection (e) is a violation of art. 27, § 341 —- stealing goods worth less than $100.

Appellant has not claimed that Officer Gable was without probable cause to effect the arrest; and indeed, at oral argument it was conceded that such probable cause did exist. The police radio broadcast, coupled with his own observations, afforded Officer Gable with probable cause to believe that (1) the offense of petty larceny had been committed, (2) the person he saw enter the grocery store, namely, appellant, committed the offense, and (3) unless immediately apprehended, the suspect might, at the very least, dispose of evidence (the fruits of the larceny) or possibly escape altogether. See Bosley v. State, 14 Md. App. 83 (1972).

The arrest being lawful, the Wong Sun “doctrine” is inapplicable, and the key was therefore admissible.

Even if, arguendo, the prior arrest had been unlawful, Wong Sun would not apply for other reasons. The key was returned to appellant when he was released from jail. It was not used against him in a prosecution of the crime for which he was arguably arrested unlawfully; nor did it lead to any other evidence as to that crime or any other crime that appellant had then committed. The key was found, independent of the prior arrest, at the scene of another crime committed after the taint of any illegality had been washed away. Its discovery there was not the product of the earlier arrest. In short, if the tree (the earlier arrest) was poisonous, it died without bearing fruit.

(2) Suppression of the Letter

After his arrest for the rape and battery, appellant found himself back in the Howard County Detention Center. There, on or about August 17,1976, while awaiting trial, he handed a sealed envelope to Correctional Officer Daniel Heyn. The envelope was addressed to a Herb Robinson, another inmate at the Detention Center. Heyn gave the envelope to his supervisor, Mr. Gamber, who opened the envelope and found that it contained a letter that included statements incriminating to appellant. Gamber gave the letter to Mr. Hobbs, his supervisor. Hobbs gave the letter to the director of the Detention Center, Mr. McClellan, who, in turn, directed that it be turned over to the State’s Attorney. The letter was, in fact, given to the State’s Attorney.

Appellant moved to suppress the letter as evidence on the ground that it was a “privileged communication” that was “illegally seized by a prison official against the wishes of the Defendant, and without any form of waiver on the part of the Defendant”. He asserted in his pre-trial motion that, although such officials may have the authority to open prisoner mail in order to insure the security of the facility, they have no authority to open such mail “where the sole purpose is to read the contents thereof.”

At a hearing held on the suppression motion, Mr. McClellan described the regulations pertaining to prisoner mail. These regulations, he said, were set forth in a letter that was posted on the walls or bulletin boards of the Center. The letter says nothing specifically about intra-facility mail from one inmate to another, but does provide that (1) all “outgoing inmate mail” may be sealed, (2) all “incoming mail will be opened for inspection before delivery to the inmate”, (3) “incoming mail will be inspected for contraband and subject to additional review to determine appropriateness”, and (4) such mail will be returned to the sender if it is inflammatory, advocates escape, violence, disorder, or assault, directly or indirectly threatens the security, safety, or order of the institution or its personnel, or contains coded or otherwise undecipherable language. Mr. McClellan amplified this by stating that his correctional officers “should inspect all packages or parcels being handed from one inmate to another, which would include letters or contraband or anything of a serious nature that might be detrimental to the security of the institution.” Specifically with respect to letters, he said that “what is inside of the letter could possibly be contraband and the only way we could determine that is to look and see.”

Following this, appellant testified that he had given a letter, written by him, to a correctional officer, and that he had not given anyone permission to read that letter. Upon this evidence, the motion to suppress was denied; and, as a result, the letter was produced and admitted into evidence at trial.

In reviewing the pre-trial decision on the suppression motion, we must consider the inter-play between the First Amendment right of free speech and the Fourth Amendment guarantee against unreasonable searches and seizures.

We start with Stroud v. United States, 251 U. S. 15 (1919), one of the plethora of cases involving the now late but still famous “birdman of Alcatraz.” Stroud, while an inmate at the Federal prison at Leavenworth, had allegedly killed a guard, and was charged with first degree murder. Certain letters, containing inculpatory statements, were admitted into evidence against him. They had been written by him after the homicide and while he was an inmate at Leavenworth. As the Court noted, “[t]hey were voluntarily written, and under the practice and discipline of the prison were turned over ultimately to the warden, who furnished them to the district attorney.” Stroud had applied for the return of the letters under the doctrine laid down in Weeks v. United States, 232 U. S. 383 (1914), which application was apparently denied.

The Court affirmed that denial, holding Weeks to be inapplicable. It said, 251 U. S. at 21:

“In this instance the letters were voluntarily written, no threat or coercion was used to obtain them, nor were they seized without process. They came into the possession of the officials of the penitentiary under established practice, reasonably designed to promote the discipline of the institution. Under such circumstances there was neither testimony required of the accused, nor unreasonable search and seizure in violation of his constitutional rights.”

Stroud is virtually indistinguishable from the case at bar. The question is whether it is still “good law”, whether it survives as a controlling Constitutional precedent. In 1967, the Supreme Court of Florida still considered it viable. In Baker v. State, 202 So. 2d 563 (Fla., 1967), the defendant claimed that the interception and copying, by a jail official, of a letter written by defendant to his uncle constituted an invasion of privacy and an illegal seizure. Concluding, however, that the jailer, to whom the letter was given for mailing, “read it as a standard security measure practiced to insure the internal stability of the jail” and that the letter therefore “came into possession of the state in the orderly process of the operation of the jail”, the court held that the letter was properly admitted into evidence. Succinctly, the court stated, at page 567:

“The use of admissions against interest in letters written by prison inmates has been held proper by the United States Supreme Court. Stroud v. United States, 251 U.S. 15, 40 S. Ct. 50, 64 L. Ed. 103 (1919). Stroud is still the law.... We know of no rule of law or constitutional provision which prohibits the use in evidence of a letter obtained in this way.”

The holding in Stroud was based, in part, on the general authority of prison officials to engage in reasonable censorship of communications from, to, and among inmates as a necessary adjunct to maintaining discipline within the institution. First Amendment rights were not considered by the Court. Stroud's continued vitality must therefore be re-examined in light of the more recent pronouncements of the Supreme Court in Procunier v. Martinez, 416 U. S. 396 (1974), Wolff v. McDonnell, 418 U. S. 539 (1974), and the progeny fostered by them.

Procunier v. Martinez involved a broad class action attack on the mail censorship regulations operative within the California Department of Corrections. It was decided solely upon First Amendment grounds, and did not at all involve search and seizure questions under the Fourth Amendment. It was, as the majority Opinion noted, a question “not previously addressed” by the Court. The principle announced by the Court was this:

“[W]e hold that censorship of prisoner mail is justified if the following criteria are met. First, the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Prison officials may not censor inmate correspondence simply to eliminate unflattering or unwelcome opinions or factually inaccurate statements. Rather, they must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation. Second, the limitation of First Amendment freedoms must be no greater than is necessary or essential to the protection of the particular governmental interest involved.”

Wolff v. McDonnell dealt specifically with the extent to which prison officials could open, or otherwise inspect or place restrictions on, incoming mail from attorneys, and thus involved a mixture of First and Sixth Amendment rights. With respect to First Amendment considerations, the Court noted (418 U. S. at 576) that “freedom from censorship is not equivalent to freedom from inspection or perusal.” As to the Sixth Amendment (right to the assistance of counsel) question, the Court observed, at page 577, that “the possibility that contraband will be enclosed in letters, even those from apparent attorneys, surely warrants prison officials’ opening the letters.”

The Court gave clear recognition in both of these cases to the existence of a proper and identifiable governmental interest in the monitoring of communications to and from prisoners. It, in fact, stated in Procunier, at page 412:

“One of the primary functions of government is the preservation of societal order through enforcement of the criminal law, and the maintenance of penal institutions is an essential part of that task. The identifiable governmental interests at stake in this task are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.”

These “identifiable governmental interests” are equally apparent and applicable with respect to the Howard County Detention Center as any other penal institution. That part (or all) of its inmate population consists of pre-trial detainees, as compared with convicted criminals, does not lessen the duty of the center’s officials to preserve internal order and discipline, maintain security, and attempt, as best they can, to rehabilitate a very difficult group of people. As stated by the Court in Smith v. Shimp, 562 F. 2d 428, 426 (7th Cir., 1977), a case involving pre-trial detainees:

“If unmonitored use of the mail presents a substantial threat to jail security, the burden imposed on the detainees’ freedom to communicate private matters is justified. The asserted purpose of reading the detainees’ letters is unrelated to any design to pry into their private affairs or to discourage communication of private matters. The reluctance of the detainees and of their correspondents to share personal matters with jail officials does not merit any sacrifice in the security of the institution. If conflict between the state’s interest in jail security and the civil liberties of the detainees cannot be avoided or limited by reasonable means, the latter must yield.”

Once the identifiable governmental interest is established, the issue becomes the scope of the authorized monitoring. In Procunier and Wolff, the Court focused on communication with the outside world, particularly correspondence with such “privileged” persons as attorneys, the courts, and family members. Distinctions, in fact, were suggested there, and made clear in subsequent cases in the Federal District and Circuit courts, between the types of restrictions that may be placed on “privileged” and “nonprivileged” correspondence. There is nothing in any of the cases to suggest that the same balance struck with respect to outside correspondence, whether “privileged” or “unprivileged”, must, of necessity be applied equally to communications between inmates. Indeed, the courts have sustained far more substantial restrictions on inter-inmate correspondence. See, for example, Peterson v. Davis, 415 F. Supp. 198 (E.D. Va., 1976), and Williams v. Ward, 404 F. Supp. 170 (S.D.N.Y., 1975), upholding institutional regulations prohibiting such communication altogether without approval by the superintendent of the institution.

The rationale for permitting more extensive interference with the free flow of communication between inmates, particularly material enclosed in sealed envelopes, is self-evident. The potential for mischief — escape, riot, passage of contraband, disturbance, defiance of authority, injury to correctional staff or other inmates — is infinitely greater from unfettered correspondence among inmates than it is from correspondence with persons outside the institution. Accordingly, there is a more significant identifiable governmental interest in regulating that exchange than there is in controlling external correspondence (particularly that from the inmate), thereby necessitating a greater permissible invasion of an inmate’s “right” of privacy.

It is not necessary for us to consider whether the policies and procedures applicable to inmate correspondence at the Howard County Detention Center, as testified to by Mr. McClellan and posted on the walls at the center, were facially conformable in every respect to the dictates of Procunier or Wolff That it is not the issue. It is clear, under those cases, that the correctional staff was authorized to open and inspect “incoming” mail. It was also permissible for the staff to read such mail, if for no other purpose than to make sure that it did not contain information relating to escape, riot, or other breaches of discipline and security. Moreover, the record shows that the fact that “incoming” mail would be opened and inspected was published and made known to the inmates.

We thus have a situation in which the letter handed to Officer Heyn, though “outgoing” mail as to appellant, would be “incoming” mail as to the addressee Robinson. By virtue of the published regulations, appellant therefore knew, or should have known or at least suspected, that the letter was subject to being opened and read by the correctional staff. As that potential invasion was not only to be expected at the center but was permissible under Procunier, appellant had no right to assume that his chosen means of communication would ensure privacy. We therefore conclude that, under these circumstances, the rationale and holding in Stroud remains intact, and that the search, seizure, and admission of the letter did not violate appellant’s First or Fourth Amendment rights.

(3) Conviction of Rape and Battery

The testimony of Ms. S was sufficient to establish that appellant choked and beat her after the rape was completed, that the incidents were distinct from each other, and, in fact, occurred in different places. The separate verdicts and sentences were therefore proper. Cates v. State, 21 Md. App. 363 (1974), cert. denied 272 Md. 739 (1974).

Judgments affirmed; appellant to pay the costs.

      . The State had some difficulty establishing a precise chain of custody with respect to this key. The police officers testified that they delivered the initialed key to the correctional officer at the Detention Center. The correctional officer claimed he received no key from the police officers, but that he did recover a key from appellant when he searched him. It is clear that a key came into the possession of the correctional officer, and that that key was returned to appellant upon his release.

      . When the State first offered the letter into evidence, defense counsel objected on the ground that the State had failed to show a complete chain of custody of the letter. After the testimony of two additional witnesses designed to forge the last two links in the chain, the State again offered the letter. At this point, without expressing a clear objection, counsel suggested that the State had failed to establish that appellant had written the letter. No objection was made on Constitutional grounds, and the letter was admitted into evidence. At the conclusion of the State’s case, defense counsel recalled Correctional Officer Heyn as a defense witness and questioned him again about the letter. On cross-examination by the State’s Attorney, Heyn repeated his earlier testimony that appellant had given him the sealed envelope. He was then asked whether appellant had said anything when he gave Heyn the envelope, to which the witness replied: “He said something to the effect that I could open it, go ahead and give it to Herb, there’s nothing in it. Not in those exact words, but to that effect.” This statement was not rebutted.
      Former Maryland Rule 729 was applicable to those proceedings. Subsection g. thereof provided that, if a suppression motion is granted, the property was to be returned to the person entitled to it and “shall not be offered in evidence by the State at the trial on the merits in the criminal proceeding.” If the motion was denied, that ruling “shall be binding at the trial” unless the trial judge grants a de novo hearing on a renewal of the suppression motion. The rule further provided that a pre-trial ruling denying a motion to suppress “shall in any event be reviewable on appeal____” See also subsection f. We therefore will review and consider the action of the court in denying the pre-trial motion to suppress, notwithstanding the failure of appellant to preserve the same objections at trial, Silbert v. State, 10 Md. App. 56 (1970); Taylor v. State, 17 Md. App. 536 (1973), and without regard to Heyn’s intimation at trial that appellant may have consented to the search. In that regard, there is nothing in Heyn’s statement that would indicate appellant’s consent to the seizure of the letter.

      . He was tried and convicted twice before of the crime, but on both occasions the convictions were reversed when the Governor confessed error. This was an appeal from his conviction following the third trial. This time his luck ran out, as the Supreme Court affirmed the judgment.

      . This was tantamount to a modem motion to suppress. In Weeks, the Supreme Court held that papers seized from a person in violation of his Fourth Amendment rights nad to be returned to him and could not be used in evidence against him.

      . It is apparent from this passage that the Court found no violation of Fifth Amendment rights either. The Opinion does not disclose how the prison officials initially came into possession of the letters or to whom the letters were addressed.

      . See also Hayes v. United States, 367 F. 2d 216 (10th Cir., 1966); Denson v. United States, 424 F. 2d 329 (10th Cir., 1970), cert. denied 400 U. S. 844 (1970); United States v. Wilson, 447 F. 2d 1 (9th Cir., 1971), cert. denied 404 U. S. 1053 (1972); Cox v. Crouse, 376 F. 2d 824 (10th Cir., 1967), cert. denied 389 U. S. 865 (1967); United States v. Palmateer, 469 F. 2d 273 (9th Cir., 1972); Ellis v. State, 86 So. 2d 330 (Miss., 1956); State v. Johnson, 456 S.W.2d 1 (Mo., 1970), adhered to on later appeal, 476 S.W.2d 516 (1972), cert. denied 409 U. S. 859 (1972); People v. Dinkins, 242 C.A.2d 892 (Cal., 1966); People v. Jones, 19 C.A.3d 437 (Cal., 1971).

      . See, for example, United States v. Savage, 482 F. 2d 1371 (9th Cir., 1973), cert. denied 415 U.S. 932 (1974), decided after the Supreme Court noted probable jurisdiction in, but before it decided, Procunier v. Martinez.

      . It is clear, moreover, that the relevant consideration was not the free speech rights of the inmates, but of those on the outside who correspond with the inmates. See Concurring Opinion of Justices Marshall and Brennan, 416 U. S. at 422; Procunier v. Navarette, 434 U. S. 555, 98 S. Ct, 855 (1978).

      . 416 U. S. at 406.

      . Later in the Opinion, the Court seemed to add a third criterion — that of “minimum procedural safeguards”. As to this, it affirmed the District Court requirement (without appearing to mandate it as its own) that an inmate be notified of the rejection of a letter written by or to him, that he have a reasonable opportunity to protest the decision, and that complaints be referred to a prison official other than the one who originally disapproved the correspondence. See, also, Hopkins v. Collins, 548 F. 2d 503 (4th Cir., 1977), in which the Court appeared to view these three elements as necessary to satisfy due process requirements.

      . See also Duran v. Elrod, 542 F. 2d 998 (7th Cir., 1976); but compare Taylor v. Sterrett, 532 F. 2d 462 (5th Cir., 1976), footnote 11. It has been public knowledge for a long time, and is documented in the record in this case, that the Howard County Detention Center is old (indeed antiquated) and severely overcrowded. It houses a mixed bag of pre-trial detainees, many of whom have been charged with serious and violent crimes, many of whom have been incarcerated on one or more prior occasions. In some respects, the difficulty in maintaining order, discipline, and security in such a setting far exceeds that in facilities for convicted persons, particularly those newer ones housing only “minimum security” prisoners. If, as appears to be the case, institutional security is a paramount consideration, whether the inmates are pre-trial or post-conviction detainees is not, of itself, an overriding or controlling circumstance.

      . See, for example, Smith v. Shimp, supra, 562 P. 2d 423 (7th Cir., 1977), Williams v. Ward, 404 P. Supp. 170 (S.D.N.Y., 1975). Appellant claims that the letter in question here was ‘privileged” because it was sealed and private. That is not, however, the basis for determining whether it is “privileged”.

      . Thus, the situation was no different than if he had put a stamp on the envelope and mailed the letter to Robinson. It would have been opened and read before being delivered.