text:
    ANTHONY TONY SNOWDEN v. STATE OF MARYLAND
    [No. 188,
    September Term, 1976.]

      Decided November 10, 1976,

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

      Mark Colvin, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and George E. Burns, Jr., Assistant Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Edwin Wenck, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

John Morley’s reflection that

“This means prepare the end, and the end is what the means have made it.”

is especially applicable to criminal law. Frequently the law serves only to define the means and limit the extent to which man may go in achieving an otherwise legitimate goal. Sexual relations, for example, are seldom simply illegal vel non; it is the means of achieving that end that distinguish it as rape, assault or a mutually pleasant experience. What is otherwise good and just, if it be sought by force or fraud, becomes bad and unjust. Had Anthony Tony Snowden retained the subtleties of the mood provided by the psychedelic lights and stereo music in his apartment, he would not now be facing seven years imprisonment for having assaulted his young female companion who had accompanied him there to drink wine. Had he spoken seductively instead of shouting threateningly and caressed gently instead of disrobing roughly, she may not have reported it as rape. But she did, and the ensuing indictment for rape loomed so threateningly that appellant agreed to a bargain with the State whereby he would plead guilty to assault in order to obviate the possibility of being convicted of the greater crime of rape.

The bargain offered him by the State became even more attractive when the prosecutor “agreed to recommend probation, coupled with psychiatric care” as the sentence. The bargain thus, struck, the plea was entered and sentencing was deferred to obtain the presentence investigation and medical report ordered by the judge.

When that report was received, it suggested incarceration rather than probation. Thus set aback, appellant’s counsel argued strenuously and innovatively against the report, pleading with the court to accept the recommendations of the bargain and to order probation coupled with psychiatric treatment. At the conclusion of that plea, the court thanked him for his remarks and turned to the prosecutor saying:

“Mr. Wenck, is the State adhering to the recommendation that it made at the time of the trial?”

We cannot speculate upon the judge’s reason for asking such a question. However, to the prosecutor, who sat silently through appellant’s counsel’s persuasive attack upon the presentanea recommendation, the invitation suggested by the court’s question was too suggestive to decline. Although he tried to avoid an obvious breach of the bargain, he sought to convey his message subtly by rehabilitating the report so astutely attacked by defense counsel:

“MR. WENCK: Yes, Your Honor, our word is our bond. Our yes is yes and our no our no. We stick by the recommendation. However, I feel constrained to, if I may, simply to point out for the record, that Mr. West, as always, a most eloquent advocate, and very skillfully, just as he was skillful in negotiating a plea on behalf of his client, I find him a formidable advocate every time I meet him at the trial table. But as I’m sure the Court is aware, assertion is not prove, [sic] I’m afraid that Mr. West’s infallible style is seeking to poison the — well, suddenly he points out that it was a female psychiatrist, whether that was relevant at all, the sex of the doctor examining, the psychiatrist, I was not aware of any hysterial locating recently with regard to the subject of rape. As Mr. West’s words, for the record, would seem to suggest, of course, there has been no supporting data to such an assertion, some of the same kind of conclusions that Mr. West draws with regard, or the guilty finger to which he points to the medical degree, or psychiatric residency, when he talks about the hostility and so on. And he made reference, one phrase that he used really set me off, was that the medical peoples’ conclusions were subjective in nature. Well, psychiatry is as much an art as a science, and they are an informed, I would submit to the Court, subjectivity, based on years of medical knowledge and experience, and clinical training, and again, very skillfully, Mr. West has woven to his benefit — to his client’s benefit, the best possible statement that one can make in the situation.
But for the record, I just thought it needed to be pointed out. I’m sure the Court is aware, in the advocate’s position, he is less than non-subjective himself in evaluating that which we have seen come back in the report.
THE COURT: With all of this, Mr. Wenck, is the State still adhering to its recommendation?
MR. WENCK: Yes, because of our agreement.
THE COURT: Is probation — with out-patient psychiatric treatment, is that your recommendation?
MR. WENCK: I believe we must, I believe we must.
THE COURT: All right.”

Although the bargain, as understood by the court, was that “the State is unequivocably recommending probation”, it is apparent that the prosecutor was urging the judge to comply with the presentence report rather than to adhere to his own “recommendations”. Appellant contends that this violates the sanctity of a plea bargain as described in Santobello v. New York, 404 U. S. 257.

In Miller v. State, 272 Md. 249, 253, Judge Eldridge vividly described a similar prosecutorial equivocation as just such violation:

“When the prosecuting attorney said this, he was advising or suggesting to the judge that the conditional probation recommendation not be completely accepted. This constituted a ‘recommendation’ by the prosecuting attorney as to the ‘disposition’ of the case. Moreover, the prosecuting attorney certainly appeared to be recommending that imprisonment instead of conditional probation be imposed. Absent some further explanation by the prosecuting attorney, the only logical inference that could be drawn from his statement is that he was urging imprisonment rather than probation. The prosecutor’s statement was inconsistent with his undertaking to make ‘no recommendation.’ ”

The State had agreed to take affirmative action, i.e., to

recommend probation, and it is apparent that such recommendation by the State was an inducement to obtain appellant’s plea. Santobello, supra, 404 U. S. at 262; United States v. Brown, 500 F. 2d 375, 377. Despite the reluctant concession of conformity to the bargain at the conclusion of the prosecutor’s apologia for the pretence recommendations, it is apparent that probation was the last thing he “recommended” to the court:

“I believe we must, I believe we must.”

The appellant promptly moved to withdraw his guilty plea contending that the bargaining had been violated, and with apparent good reason since, just before sentencing appellant to 7 years imprisonment, the judge himself acknowledged that the State’s position had the appearance of something less than a recommendation of probation:

“.. . one could possibly read into what Mr. Wenck had to say, perhaps some reluctance that it had agreed to the arrangement which had been made, perhaps some feeling that although the
State is recommending probation, it still might not be the best thing for all concerned.”

Seemingly beguiled by appellate opinions lauding judicial superiority over mere laymen, the judge pointed out that even if the bargain was breached, it had not affected his thinking because he had been predisposed to reject it anyhow:

“I want to make it very clear for the record that my disposition is going to be contrary to the recommendation of the State, and contrary to the recommendation of defense counsel. But, that my decision not to accept the recommendation of the State was made with finality before Mr. Wenck addressed the Court. It was made with finality at the conclusion of the defense presentation, here this morning, which consisted of forty minutes worth of argument by defense counsel and testimony by the defendant. That, at that stage, I firmly concluded that I would not follow the recommendation of the State or the defense counsel. It was strictly as a matter of format for the record that I asked the State whether it was adhering to the recommendation which it made at the time of trial. The additional comments by Mr. Wenck, I have already described, and they had absolutely no bearing whatever, on my determination, which had already been made, because I had already been aware of the recommendation of the State. I knew the State was bound by the recommendation, so I felt that I could make up my mind at the conclusion of the defense presentation today. And that I need not really have to listen to any views to be expressed by the State, as I mentioned at the outset of the hearing, I read the medical evaluation and probation report prior to today, and have had many opportunities to reflect upon them. And I have reflected upon them, well prior to todays hearing, and my judgment is not in any way, shape or form, influenced by the additional comments which the State felt constrained to make this morning.”

Such judicial adhesive cannot mend the prosecutor’s broken promise. The Supreme Court anticipated this precise circumstance:

“We need not reach the question whether the sentencing judge would or would not have been influenced had he known all the details of the negotiations for the plea. He stated that the prosecutor’s recommendation did not influence him and we have no reason to doubt that. Nevertheless, we conclude that the interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration.” Santobello v. New York, 404 U. S. at 262-263.

It follows that the trial judge erred in denying appellant’s motion to withdraw his guilty plea and proceed to trial as if there had been no bargain.

The prosecutor and the judge (and the appellant as well) might do well to contemplate a reflection of Publilius Syrus in the 1st Century B. C.:

“I have often regretted my speech, never my silence.”

Judgment reversed.

Case remanded for new trial.

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

      . More prosaically, for those with a propensity for legal latin:
      "Quod alias bonum et justum est, si per vim vel fraudem pretatur, malum et injustum efficitur,”

      . The prosecutor stated to the court that:
      "The defendant maintained to me throughout the incident, of course, that he did not commit the offense of assault on this young lady, but that he would plead guilty because of his fear of the possible sentence that he could receive if he were tried and convicted of the major offense, which was rape.”

      . The plea bargain is described by colloquy between counsel and the court:
      “MR. WENCK: Yes, there are, Your Honor. Through Mr. West, the Defendant’s attorney, and myself representing the State, in consultation with the police officer in the case, the victim in this case and her father, we have agreed to accept an Alford plea and we have also agreed to recommend probation, coupled with psychiatric care.
      THE COURT: Care?
      MR. WEST: Not care, psychiatric treatment.

        ME. WF.NGK: Treatment, I was going to say amend and go on to say, Mr. West, on an out-patient basis, as would be deemed necessary.
      THIS COURT: As I understand the State’s position, Mr. Wenck can correct me if I am wrong, is that the State is unequivocably recommending probation. That is Step No. 1.
      MB. WEST: Eight.
      THE COURT: Step No. 2 is strictly a contingency step.
      ME. WEST: Right.
      THE COURT: That if it should fae determined by competent judgment that as part of the probation, some type of out-patient psychiatric treatment would fe appropriate, the State would ask for that too,
      MB. WENCK: Yes, sir.
      THE COURT: But if it doesn’t determine it is necessary, the State would recommend probation.
      MR. WENCK: Yes, sir, and I would exclude Patuxent.
      THE COURT: That too, that is understood.
      MR, WEST: And that is exactly my understanding. Thank you, Mr. Wenck.”

      . Describing appellant as being an “antisocial personality in an aggressive person”, Dr. Renate M. Kniffin explained in her report that he was a “ ... manipulative psychopath who apparently usually frequently succeeds in manipulating people to his own end.” She noted that while he had average intelligence “ ... his reading and writing is not the best.” She then recommended “that he be given a sentence which is eommensorate with what the court has learned about the present offense.”

      .
      “MR. WEST: Your Honor, I question whether Mr. Wenck’s statement is consistent with his avowed intent to stand by his deal. It appears to me that he is saying, I must do it, I must do it, but I’d like to state what is wrong with Mr. West’s case, with his approach to this case. In regard to the deal, I was approached by the prosecution and I was offered this deal. I made no confrontation with the prosecution. He approached me, and he laid this deal out to me, and I took it to my defendant. I did not suggest it, and did not initiate the contact, as I have in my notes. I feel that the State is saying that I have poisoned the well, with regard to the psychiatric interview, and that the psychiatric recommendation is correct, though his own recommendation, that he has in fact recommended probation in this case — I do not believe that the State is recommending probation with good faith in this case. And I do not believe it was a bona fide recommendation today, that he just made, when he says he must stand by the recommendation. In fact, I feel the State is withdrawing from its position in this case and I therefore move that the guilty plea be withdrawn and that this case be reinserted on the docket as a not guilty trial. I believe the State has reneged on its agreement in this case. And I don’t think that the State is, in good faith, recommending this man be given probation. Therefore, I recommend, and I move that this Court withdraw the guilty plea and reinstate this case on the trial docket. Thank you/’

      . “ ‘[JJudges are men of discernment....’ State v. Babb, 258 Md. 547, 550.
      A judge presides impartially because of his ‘professional expertise, experience and judicial temperament ....’ State v. Hutchinson, 260 Md. 227, 233.
      Judges have ‘wisdom and experience.’ Gunther v. State, 4 Md. App. 181, 184.” See Williamson v. State, 25 Md. App. 338, 341.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    DWS HOLDINGS, INC. v. HYDE PARK ASSOCIATES et al.
    [No. 234,
    September Term, 1976.]

      Decided November 10, 1976.

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

      Christopher Sanger for appellant.

      David A. Sacks and Rodney F. Page, with whom were Arent, Fox, Kintner, Plotkin & Kahn on the brief, for appellees.
   Lowe, J.,

delivered the opinion of the Court.

Prologue

In seeking the top development dollar for its land, appellant, DWS Holdings, Inc., (DES) was compelled to risk losing 10% of its selling price by taking back a note, secured by a deed of trust, for that portion of the price. Because land purchased for development presupposes substantial construction financing, appellant agreed to subordinate its deed of trust lien to the lien of “any Deed of Trust securing a bona fide construction loan. . . .” Anticipating that contingency, appellant sought to minimize its risk by obtaining personal sureties if such a construction loan subordination did take place. Following default on the note by the corporate promisor, DWS brought suit against the personal guarantors. The issue was whether the contingency required to obligate these personal sureties had come to pass. By directing a verdict in favor of the personal guarantors, in the Circuit Court for Montgomery County, Judge Richard B. Latham ruled that the contingency had not occurred.

Facts

The problem stemmed from a real estate development transaction involving 70 acres of land owned by appellant DWS in Montgomery County. DWS sold that land to Hyde Park Associates, one of the appellees, for residential development purposes. The 70 acre parcel was to be divided in two parts for a three phase development. One parcel was to contain Phase I and the second parcel Phases II-III. Hyde Park’s source of financing was BankAmerica Realty Investors (BARI) whose financing agreement with Hyde Park forms the foundation for the position taken here by DWS.

On January 31, 1978, BARI made its loan to Hyde Park. The loan was to equal 90% of the cost of the land for both parcels, and the entire cost of the construction on Phase I. As shown by the Construction Loan Agreement between BARI and Hyde Park, contemporaneously executed, the land cost allocated to Phase I was $675,000 and the land cost allocated to Phases II-III was $1,825,000, for a total of $2,500,000. Ninety percent of this sum was $2,250,000, which left $250,000 for Hyde Park to pay DWS for land from some source other than the BARI loan. Although cash was originally contemplated for the land cost, it was later agreed that a note for $250,000, secured by a deed of trust from Hyde Park to DWS on the land reserved for Phases II-III, would provide the remaining 10% of land costs.

In accordance with the Construction Loan Agreement, Hyde Park’s obligation to BARI was evidenced by two separate notes. BARI note 1, in the amount of $6,585,000, represented 90% of the land cost allocated to Phase I ($607,500) and the balance represented construction costs of Phase I. The second note, BARI note 2, was for $1,640,000, representing 90% of the land cost of Phases II-III. Each note was separately secured by a recorded deed of trust. Each deed of trust conveyed the entire 70 acres to the trustees as security.

The Purchase Agreement between DWS and Hyde Park provided for the payment of the $2,500,000 purchase price by certified check for $2,250,000, and the $250,000 note secured by a deed of trust. DWS agreed to subordinate its deed of trust securing the $250,000 note taken back by it for the 10% balance due on the purchase price of the 70 acres of land, to the deed of trust from Hyde Park, securing a loan not to exceed $1,640,000 from BARI, which was the amount allocated by the Construction Loan Agreement to 90% of the Phase II-III land cost.

When the proposed subordination was submitted to DWS for review, however, it provided for subordination of the lien securing the $250,000 note to both the land loan and two construction loans. DWS objected that this was contrary to the agreement in the sales contract, and insisted upon the personal guaranties of the individual appellees if Hyde Park requested subordination to construction loans. It is this provision, required by DWS, upon which appellant relies in trying to collect from the contingent personal guarantors. The crucial paragraph, added by DWS to the deed of trust it took to secure the $250,000 note, was:

“IT IS HEREBY COVENANTED AND AGREED:
The trustees are hereby authorized and directed, without attaining further consent from the noteholder, and without any additional payment on account of the indebtedness secured hereby, so long as there is no then existing default hereunder, to subordinate the lien of this Deed of Trust to the lien of any Deed of Trust securing a bona fide construction loan made by an institutional lender such as a bank, savings and loan association, life insurance company, union pension fund, real estate investment trust, or a similar institution. As a condition to any such subordination, Alan I. Kay, Allen E. Rozansky and Stuart A. Bernstein, and all other General Partners of Hyde Park Associates, A Limited Partnership, shall guarantee the payment of the Note herein secured in accordance with its terms.” (emphasis added).

At settlement on January 31, 1973, Hyde Park paid DWS $2,250,000 and gave to them a note for $250,000. The note contained a phrase which, pursuant to the revised contract of sale, provided that there would be no personal liability on the note and that DWS would look solely to the property for satisfaction. The deed of trust securing the note contained the contingent personal liability clause quoted above. The DWS trustees contemporaneously executed a subordination of the deed of trust securing the $250,000 note to the deed of trust securing BARI’s note 2. This latter note, in the amount of $1,640,000, appears to have represented 90% of the purchase price of the second portion of land, the construction upon which had been set aside as Phases II-III. Because the deed of trust given in connection with BARI note 2 was cross-collateralized with the deed of trust given in connection with BARI note 1 (which, in turn, represented 90% of the purchase price of the first parcel and the entire construction cost of Phase I), ie., because both deeds of trust described the entire 70 acre tract as security, appellant contends that the personal guarantee clause was triggered. Summarizing its contentions, appellant reasons as follows:

“From this proof it was clearly and uncontrovertibly established:
(1) That under the DWS Deed of Trust, Appellees obligated themselves to personally guarantee payment of the DWS Note in the event that the lien of said DWS Deed of Trust were ever subordinated ‘. . .to the lien of any Deed of Trust securing a bona fide construction loan made by an institutional lender such as a . . . real estate investment trust. . . . ’
(2) That the DWS Deed of Trust was in fact then subordinated to the $1.64 million BARI Deed of Trust;
(3) That BARI is a real estate investment trust;
(4) That on or subsequent to January 31, 1973, BARI made a bona fide construction loan to HPA, embodied by the aforementioned Construction Loan Agreement between them; and
(5) That the $1.64 million BARI Deed of Trust, to which the DWS Deed of Trust was subordinated, was indeed — by its very terms and those of the Construction Loan Agreement — a ‘Deed of Trust securing a bona fide construction loan’ as characterized in the relevant provision of the DWS Deed of Trust. Given the above facts — the existence of which were clearly and manifestly evident from the face of the documentary proof — the lower Court erred in failing to conclude as a matter of law that the obligation of Appellees to personally guarantee payment of the DWS Note had been triggered and brought into full legal effect by virtue of the agreements and writings entered into by the parties or their representatives at the closing on January 31,1973.”

Appellant asks a single question in its appeal from the circuit court’s judgment that the event necessary to hold the personal guarantors liable did not occur:

“Did the lower Court err in failing to conclude, as a matter of law, that the execution by Trustees for Appellant of a Subordination Agreement dated January 31,1973 — subordinating the lien of Appellant’s Deed of Trust securing its $250,000 Promissory Note to the lien of an otherwise junior Deed of Trust securing obligations of Hyde Park Limited Partnership to BankAmerica Realty Investors — activated Appellees’ obligation to personally guarantee payment of the said Promissory Note, where the controlling contractual provisions were clear and unambiguous and where no controversy existed as to any material fact.”

Standard of Review

The emphasis in appellant’s question, indicating its reliance upon error “as a matter of law”, is presumably prompted by the stringent burden appellants carry when they ask us to set aside a lower court’s judgment upon the evidence. Md. Rule 1086. Appellant does not escape that burden, however, by simply designating the question as one of law rather than fact. To become a question of law, the record must clearly show that there is no room for evidentiary interpretation by a fact-finder in light of existing law on the subject at hand.

The “matter of law” upon which appellant relies is the banality prefacing an argument made in nearly every contract construction case before the courts, i.e., that the construction of clear and unambiguous agreements or writings is a matter of law and not of fact. Ensconcing that platitude amid abundant authority, appellant explains more precisely just what it entails, lest we fail to give proper credence to black letter law:

“The written language embodying the terms of an agreement will govern the rights and liabilities of the parties, irrespective of the intent of the parties at the time they entered into the contract, unless the written language is not susceptible of a clear and definite understanding, or unless there is fraud, duress or mutual mistake.” Slice v. Carozza Prop., Inc., 215 Md. 357, 368.

The elenchus in appellant’s gnome, however, immediately follows the first conjunction in Chief Judge Brune’s explanation in Slice, i.e.,

“. . . unless the written language is not susceptible of a clear and definite understanding. . . .”

See also C.J.S. Contracts, § 294 et seq. It is hard to imagine litigants incurring the expense and anguish of a trial and an appeal over the construction of a written document that is “susceptible of a clear and definite understanding.” But such litigious extravagance does exist (or the judicial eye is more discerning than that of litigants and their counsel), else how explain the relative frequency with which the “clear and unambiguous” platitude is applied and the exception dismissed in our appellate records?

We must discount appellant’s contention that the language is so clear and definite that it is entitled to judgment as a matter of law. The amphibolous realities incident to the involved, tripartite financing of this multimillion dollar land development required the court to go beyond the precise provisions of the documents incident to the transaction and seek the intent of the parties. This is especially so since appellant’s case below relied exclusively upon evidence it introduced to convince the court of its interpretive intent, the primary source of which was a document to which it was not a party, i.e., the Construction Loan Agreement between BARI and Hyde Park. Indeed, interpretive ambiguity is as much apparent in the nature of the documents relied upon by appellant as from the conflicting language within them.

The $250,000 note upon which appellant relied to establish the initial indebtedness contains the unequivocal statement that:

“It is understood and agreed that there shall be no personal liability on the part of the maker of this Note, or its partners for the repayment of the indebtedness evidenced hereby. . . .”

But that statement is contradicted by the very document securing the loan, the deed of trust which provides for a contingent personal liability. It is therefore evident that these provisions are sufficiently contradictory to be fairly susceptible to different constructions.

Furthermore, it is ironic that appellant evoked language from agreements extraneous to that of the pertinent contracts between the parties, and indeed from one agreement to which it was not a party, to interpret that which it now claims to be “clear and unambiguous”. The irony was increased when appellant called upon the only witness below to interpret the “clear and unambiguous” language. Irony borders on amusement when the witness (who was attorney for, and executive vice president of, DWS) testified that although he insisted upon the inclusion of the contested clause and dictated the language of it,

“At that date I had been given so little of the documentation respecting the Bankamerica loan and the circumstances immediately — within a month prior to settlement were escalating so rapidly, and the documentation was so voluminous and given so sporadically and amended so frequently, coupled with the representations of the Kay group that my position wasn’t changing, that my security wasn’t changing, that I really wasn’t able to clearly define what my position would be.” (emphasis added).

That testimony, submitted by appellant, hardly describes a transaction that is so clear and unambiguous that its provisions operate without regard to the parties’ intent, as a matter of law. Accordingly, we are convinced that the question is not a “matter of law”. Thus, appellant must convince us that the trial court’s judgment was clearly erroneous.

Intent of the Parties

The cardinal rule in construing contracts is to give effect to the intention of the contracting parties. Orkin v. Jacobson, 274 Md. 124, 128-129. The intention of the parties must be divined from all the documents comprising the transaction. See Rothman v. Silver, 245 Md. 292, 296; Ahern v. White, 39 Md. 409, 416. The most logical manner of seeking this intent is to determine if there was a meeting of minds before the formal contract was executed. In the instant case the record, made solely by appellant, contains the preliminary Purchase Agreement. Although preliminary agreements are merged in the subsequent written contract, Rafferty v. Butler, 133 Md. 430, 432, in case of doubt as to the meaning of the written contract, preliminary negotiations and agreements ought to be considered in construing the written contract. See Stockham v. Stockham, 32 Md. 196.

Within the Purchase Agreement there is reference not only to the negation of personal liability, but, within the same paragraph, a reference to appellant’s consent to subordination. Since subordination of a particular kind is the trigger for personal liability, that clause exudes substantial indicia of intent:

“(c) At settlement, Purchaser will deliver to Sellers a note from Hyde Park Limited Partnership in the amount of Two Hundred Fifty Thousand Dollars ($250,000). There vnll be no personal liability on the note. The note will bear interest at 6% per annum and will be payable over a five-year period as follows: Interest only for the first two years to be followed by three equal annual installments of principal together with interest. The note will be secured by a deed of trust of Section 2 and 3 of the Property as shown on the attached plat of the Property, Exhibit A. The deed of trust will be subordinate to a deed of trust to be held by Bank of America Realty Services, Inc. covering all of the Property and securing a loan not to exceed the amount of One Million Six Hundred Forty Thousand Dollars ($1,64.0,000) or the amount loaned to Purchaser by Bank of America Realty Services, Inc. at the time of settlement, whichever sum is the lesser.” (emphasis added).

In spite of the fact that this subordination to BARI’s land loan, without any personal liability on the note, was clearly contemplated by DWS as evidenced by the Purchase Agreement, it argues that strict compliance with the contingency clause in the deed of trust securing the $250,000 note compels the liability of the personal guarantors. It reasons thus:

The personal liability was contingent not upon subordination of the deed of trust securing the $250,000 note to a construction loan, but upon subordination of the deed of trust securing that note to any deed of trust securing a construction loan. The deed of trust securing the $1,640,000 land purchase loan was expressly linked to the $6,585,000 construction loan for purposes of determining when a default would occur. It further appears that paragraph 16 of the deed of trust securing the $1,640,000 loan provides:

“16. Related Loan Documents: Grantor shall fully and faithfully perform all of the covenants, agreements and obligations on its part to be performed under the Note, Construction Loan Agreement and that certain promissory note of even date herewith from Grantor to Beneficiary in the principal amount of $6,585,000.00 as well as the covenants contained in that certain Deed of Trust securing said promissory note, and upon the occurrence of a default under any of said instruments, then, at the option of the Beneficiary, the entire indebtedness secured hereby shall immediately become due and payable in accordance with paragraph 3 hereof.”

The closing portion of the “WHEREAS” clause provides:

“. . . and also to secure the performance by Grantor of all of its covenants and obligations under this Deed of Trust and under that certain Construction Loan Agreement of even date herewith by and between Grantor and Beneficiary (the ‘Construction Loan Agreement’).” (emphasis added).

According to appellant, this cross-collateralization of the BARI loans provides a lien by deed of trust securing a construction loan to which it had become subordinate, thus triggering the liability of the personal guarantors.

Furthermore, argues appellant, the Construction Loan Agreement between BARI and Hyde Park, executed by them contemporaneously with the other documents at settlement, considers that notwithstanding the existence of two notes and two deeds of trust, there was only one loan between these parties. The loan is referred to throughout the Construction Loan Agreement as “The Loan”, and it expressly states that:

“The execution of separate notes is for purposes of administrative convenience only, and a default under either Note shall constitute a default under the other.”,

and that:

“Notwithstanding the execution of separate Notes, the obligations represented thereby shall constitute a single loan.”

Appellant’s contention totally ignores the purpose of the document between BARI and Hyde Park, the fact that it also called for the allocation of funds between land and construction and most importantly, that DWS was not even a party to that agreement. From it we may glean the intent of Hyde Park, but hardly of DWS. Assuming that the document could cast light upon the interpretation of related documents, appellant asks us to disregard the allocation and give credence only to the crosscollateralization set forth in it. That is contrary to the basic rule of construction that the intention of the parties is gathered from the entire instrument and not from the separate clauses considered individually. McGaw v. Hanway, 120 Md. 197, 200.

The DWS argument is designed to convince us that the cross-collateralization by BARI of its deeds of trust caused appellant to be subordinated to the construction loan deed of trust securing the $6,585,000 loan as well as the deed of trust securing the $1,640,000 land cost loan. We do not find that to be its effect. Since the DWS deed of trust was prior to those of BARI, the cross-collateralization of the subsequent BARI instruments could not preempt the DWS order of lien priority. The only instrument capable of reducing DWS to a subordinate position was the Subordination Agreement executed by DWS trustees.

Surprisingly, neither the parties nor the court sought the extent of the DWS subordination in the Subordination Agreement itself. That document, executed by appellant’s trustees, is obviously an integral part of the transaction and should be read together with the other documents constituting the transaction. See Ahern v. White, supra. Moreover, since it contains the scope of the subordination to which DWS had agreed in the original Purchase Agreement, it is necessarily the key to the question before us.

The Subordination Agreement recites that as a consideration for lending Hyde Park $1,640,000 BARI had required DWS to subordinate its $250,000 note and deed of trust to BARI’s deed of trust

“ ... in an accumulated amount of principal not to exceed $1,640,000.”

That, of course, is precisely what DWS had agreed to do in paragraph 2 (c) of the original Purchase Agreement. The Subordination Agreement further states that DWS subordinated its note and deed of trust with the same limitation, i.e.:

“ ... in or to the property described as against said loan to be so made by Lender [BARI] and to any renewals, extensions or modifications thereof, provided that the accumulated amount of principal advanced thereunder shall not exceed the sum of $1,640,000. . . .”

DWS had agreed to look to land for its security and the land to which it agreed to look was to be first encumbered in an amount not to exceed $1,640,000. It is obvious that appellant received precisely that for which it had bargained. Cf. Schapiro v. Jefferson, 203 Md. 372; Brownstein v. New York L. Ins. Co., 158 Md. 51.

Sufficiency of Proof

A review of appellant’s declaration shows that it did not contend below, as it does here, that it had been subordinated to the $6,585,000 construction loan from BARI to Hyde Park. Rather, it contended that:

“The said $1,640,000 indebtedness represented a portion of a bona fide construction loan by BankAmerica Realty Investors to HP A, which construction loan is upon information and belief presently in the total principal sum of up to $8,525,000.”

If this was the thrust of DWS’s suit, as the record seems to indicate, it may not simply assert a contention that the deed of trust it relies upon as its triggering mechanism was a bona fide construction loan. It bears the burden of proving that averment. In Kennedy v. Betts and Clogg, Substitute Trustees, 33 Md. App. 258 (1976), Chief Judge Gilbert noted that:

“In our view, when a party who has subordinated his lien for some express purpose to a subsequent lienor seeks to avoid the effect of the subordination agreement on the ground that the purpose of the agreement has been frustrated by the subsequent lienor, it is incumbent upon the prior lienor to prove the allegata. He may not simply assert the contention and thereby shift to the subsequent lienor the burden of disproving the averment.”

That same reasoning applies when appellant’s relief is dependent upon proof of subordination to “a bona fide construction loan”.

Epilogue

However viewed, appellant did not meet its burden of proof. The matter, being less than clear and unambiguous, was not a matter of law; and the judge’s evidentiary judgment, rather than having been clearly erroneous, we think was substantially correct.

Judgment affirmed.

Costs to be paid by appellant.

      . The administrative purpose for this bifurcation is apparent from the Construction Loan Agreement which provided for the lender to disburse its funds according to the nature of them. Only the funds which constituted land costs were to be disbursed at time of settlement. That portion of the loan allocated to construction was to be subsequently disbursed only upon the satisfaction of certain conditions not here relevant.

      . Alan I. Kay, Allen E. Rozansky and Stuart A. Bernstein.

      . The case below was tried on interpretive documents and testimony offered by appellant. The “matter of law” issue was not directly decided below, Md. Rule 1085, and may not properly be before us now. Since we do not find the issue to be so clear and unambiguous to constitute a matter of law, we will review the court’s judgment on the evidence under the clearly erroneous rule. Md. Rule 1086.

      . Appellant, otherwise conversant with black letter law, failed to note that where a provision of a contract is of doubtful construction, it will be construed most strongly against the party who prepared it and most favorably to the other party to the contract. See, e.g., New England Mut. Ins. Co. v. Hurst, 174 Md. 596, 604.

      . The order of recording stipulated to as being intentionally so recorded was:
      1. Deed of Trust securing DWS $250,000 note from Hyde Park.
      2. Deed of Trust securing BARI $1,640,000 note from Hyde Park.

        3. Subordination Agreement by trustees of deed of trust securing DWS $250,000 note.to BARI $1,640,000 note.
      4. Deed of trust securing BARI $6,585,000 note from Hyde Park.


author: Eldridge, J.,

text:
    DOUGLAS L. ABBOTT v. ADMINISTRATIVE HEARING BOARD, PRINCE GEORGE’S COUNTY et al.
    [No. 1146,
    September Term, 1975.]

      Decided November 30, 1976.

      The cause was argued before Marvin H. Smith and John C. Eldridge, Associate Judges of the Court of Appeals, and J. Harold Grady, Associate Judge of the Eighth Judicial Circuit, all specially assigned.

      Karl G. F&issner and Robert H. Levan, with whom were Feissner, Garrity, Levan & Schimel on the brief, for appellant.

      Ellis J. Koch, Deputy County Attorney for Prince George’s County, and David E. Grover, Associate County Attorney, with whom was James C. Chapin, County Attorney, on the brief, for appellees.
   Eldridge, J.,

delivered the opinion of the Court.

We are presented with the question of whether the provisions of the Prince George’s County Merit System Ordinance and the County Charter governing employee appeals from administrative disciplinary actions are, when applied to cases involving police officers, preempted by the statewide public general law known as the “Law-Enforcement Officers’ Bill of Rights.”

The “Law-Enforcement Officers’ Bill of Rights” was enacted by the Legislature as Ch. 722 of the Acts of 1974, as amended by Ch. 809 of the Acts of 1975, and is codified in Maryland Code (1957, 1976 Repl. Vol.), Art. 27, §§ 727-734A. The purpose of these enactments was to guarantee that certain procedural safeguards be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal. A member of a police department “of any county” is expressly covered by the Law-Enforcement Officers’ Bill of Rights, Art. 27, § 727 (b) (3). The law sets forth specific standards for the investigation of alleged misconduct, including the place and time of any interrogation of the officer, and requires that a written record be kept of the interrogation, Art. 27, § 728. If the investigation results in the recommendation of some disciplinary action such as demotion, a full hearing must be held, affording the police officer the right to counsel, the right to present evidence, and the right to cross-examine witnesses, Art. 27, § 730. The hearing is held before a “hearing board,” chosen by the chief of police and comprised of other law-enforcement officers, Art. 27, § 727 (c). The written decision of the hearing board, accompanied by findings of fact, must be sent to the officer, Art. 27, § 731. An appeal from the decision of the hearing board may be taken to the circuit court pursuant to Maryland Rule B2, Art. 27, § 732. There is no provision for an appeal beyond the circuit court.

The provisions of the Prince George’s County Charter and ordinances governing disciplinary actions involving merit system employees, including police officers, are similar. While no provisions govern the conduct of a pre-hearing investigation of an employee, the chief of police may appoint a trial board of subordinates to hear charges against an officer and to submit recommendations of appropriate action to the chief, Prince George’s County Code (1967,1970 Supp.), § 13-96. If disciplinary action is to be taken, written notice must be sent to the employee stating the reasons for such action and informing the employee of the right to reply within three days, § 13-97. However, as opposed to the procedure provided in the Law-Enforcement Officers’ Bill of Rights, an additional administrative appeal to the County Personnel Board is provided, §§ 13-100, 13-102; Prince George’s County Charter, § 907 (3). An appeal from the Personnel Board’s decision may then be taken to the circuit court, § 13-103. As with the Law-Enforcement Officers’ Bill of Rights, there is no provision for an appeal from the decision of the circuit court.

On October 9, 1974, a Police Administrative Hearing Board was convened to hear charges against Sergeant Douglas Abbott of the Prince George’s County Police Department, accusing him of violations of the County Personnel Ordinance as well as Police Department Regulations. The charges arose from Abbott’s conduct in responding to a broadcast from the Police Communications Center to arrest an individual on an assault charge. Specifically, Abbott was charged with “unsatisfactory performance” in his contact with the suspect and with improper discharge of a firearm in violation of police regulations.

After hearing extensive testimony concerning the incident, the hearing board sent, on October 15, 1974, its findings of fact and recommendation of disciplinary action to the Chief of Police of Prince George’s County. The hearing board found Sergeant Abbott guilty of the charges and recommended that he be demoted to the rank of Police Corporal and suspended for a period of ten days without pay. On October 24, 1974, the Chief of Police notified Sergeant Abbott that he concurred in the hearing board’s findings and that the recommended disciplinary action would become effective on October 25,1974. Sergeant Abbott was also notified of his right to appeal from this action to the Circuit Court for Prince George’s County within thirty days.

Sergeant Abbott took timely appeals to both the circuit court and the Prince George’s County Personnel Board. On November 18, 1974, the County filed in the circuit court a motion to stay the administrative appeal, contending that under the Law-Enforcement Officers’ Bill of Rights, Art. 27, § 732, exclusive jurisdiction to review a decision of the Police Administrative Hearing Board was vested in the circuit court. The hearing before the Personnel Board was preliminarily stayed by the circuit court pending a hearing on the motion. The hearing on the motion was held on September 24, 1975, at which time the circuit court granted the motion and stayed the administrative appeal. The court found that the appeal procedures established by the local law of Prince George’s County were in conflict with the Law-Enforcement Officers’ Bill of Rights and that the latter, as a public general law enacted by the State Legislature, was controlling. Therefore, the court held that exclusive jurisdiction to hear the appeal was vested in the circuit court. Subsequently, a hearing on the merits of the appeal was held before the circuit court, and the court sustained the decision of the Police Administrative Hearing Board.

Sergeant Abbott now appeals to this court, challenging both the trial court’s decision in granting the motion to stay the administrative appeal to the Personnel Board and the trial court’s decision on the merits. He contends that the County Personnel Ordinance is not in conflict with the provisions of Art. 27 and that, as a merit system employee, he had a right to appeal the Administrative Board’s decision to the County Personnel Board. Moreover, he contends that in denying his right to appeal to the Personnel Board, he has been denied his Fourteenth Amendment right to the equal protection of the laws, in that other merit system employees are afforded an administrative review of disciplinary action prior to judicial review in the circuit court. Sergeant Abbott also raises several issues concerning the circuit court’s decision on the merits, upholding the disciplinary action taken against him.

In response, the County has filed a motion to dismiss the appeal pursuant to Maryland Rule 1036, on the grounds that this court is without jurisdiction to hear the appeal under Code (1974), § 12-302 (a) of the Courts and Judicial Proceedings Article. Additionally, in the event that the motion to dismiss is not granted, the County has filed a brief on the merits of Sergeant Abbott’s appeal.

Section 12-302 (a) of the Courts and Judicial Proceedings Article provides that, unless granted by law, there shall be no right of appeal from a decision of a circuit court reviewing the decision of an administrative agency. As noted above, neither the County Personnel Ordinance nor the Law-Enforcement Officers’ Bill of Rights grants a right of appeal beyond the circuit court. Therefore, normally no appeal from the judgment of the circuit court in reviewing a decision of the Police Administrative Hearing Board could be taken to this court. Prince George’s County v. Fahey, 28 Md. App. 312, 345 A. 2d 102 (1975).

However, if Sergeant Abbott is correct in his contention that he had a right to appeal to the County Personnel Board before any review of the administrative action by the circuit court, the circuit court would then have been without jurisdiction to hear the appeal prior to action by the Personnel Board. It is well settled that an appeal may be taken to an appellate court from a judgment of a circuit court reviewing the decision of an administrative agency where it is alleged that the court exceeded its jurisdiction. Urbana Civic v. Urbana Mobile, 260 Md. 458, 461, 272 A. 2d 628 (1971); Bd. of Med. Examiners v. Steward, 203 Md. 574, 580-581, 102 A. 2d 248 (1954); Cumberland R. Co. v. Martin, 100 Md. 165, 166, 59 A. 714 (1905); Prince George’s County v. Fahey, supra, 28 Md. App. at 316. The motion to dismiss must, therefore, be denied. Review of the judgment, however, must be limited to those issues relating to the circuit court’s jurisdiction to hear an appeal from the decision by the Police Administrative Hearing Board.

The County argues that the local law relating to appeals from the Police Administrative Hearing Board has been preempted by the Law-Enforcement Officers’ Bill of Rights which is a statewide public general law. The County’s preemption argument has two prongs. First, the County contends that the appeal provisions of the merit system ordinance and of the County Charter are, when applied to police officers, in direct conflict with the public general law, and that when such a conflict exists, the public general law is controlling. City of Baltimore v. Sitnick & Firey, 254 Md. 303, 310-317, 255 A. 2d 376 (1969); Rossberg v. State, 111 Md. 394, 416-418, 74 A. 581 (1909). See Maryland Constitution, Art. XI-A, § 3. Alternatively, the County argues that even if there is no actual conflict, the Law-Enforcement Officers’ Bill of Rights provides comprehensive procedures governing disciplinary actions involving all police officers in the State, and that therefore the Legislature has preempted this field by occupation. Reliance is placed upon County Council v. Montgomery Ass’n, 274 Md. 52, 58-65, 333 A. 2d 596 (1975).

Although highly persuasive, we do not find it necessary to rule upon the County’s argument based on preemption by occupation. This is because we agree with the circuit court that the County personnel laws and the public general law are in direct conflict. Both the Law-Enforcement Officers’ Bill of Rights and the County personnel laws provide for an appeal from hearing board decisions. The Personnel Ordinance provides for administrative review of the decision prior to judicial review whereas the Law-Enforcement Officers’ Bill of Rights provides for immediate judicial review of the hearing board decision without intermediate administrative action. The appeal provisions of the law enacted by the County are obviously inconsistent with the appeal provisions of the Law-Enforcement Officers’ Bill of Rights. Where provisions of a locally enacted law and a law enacted by the State Legislature are inconsistent, and, as here, irreconcilable, a conflict exists. The State law preempts the locally enacted law and is controlling. Heubeck v. City of Baltimore, 205 Md. 203, 208-211, 107 A. 2d 99 (1954); Levering v. Park Commissioners, 134 Md. 48, 106 A. 176 (1919); Rossberg v. State, supra. Consequently, the circuit court had exclusive jurisdiction to hear the appeal from the Police Administrative Hearing Board, and the court properly granted the motion to stay the appeal before the County Personnel Board.

Sergeant Abbott also argues that the Law-Enforcement Officers’ Bill of Rights as interpreted by the circuit court violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in that it creates a class of employees, police officers, who are denied rights enjoyed by other merit system employees in Prince George’s County. Assuming arguendo that an appeal to this court will lie where it is alleged not only that the court reviewing an administrative action was without jurisdiction to do so, but also where it is alleged that a particular administrative procedure will result in the deprivation of a basic constitutional right, we can find no merit to this contention.

The Equal Protection Clause of the Fourteenth Amendment does not prohibit the State from enacting legislation which affects one group differently than others. If there is a rational basis for the classification to achieve a legitimate State objective, the constitutional safeguard of equal protection of the laws is not offended. McGowan v. Maryland, 366 U. S. 420, 425-427, 81 S. Ct. 1101, 1104-1105, 6 L.Ed.2d 393 (1961); Bowie Inn v. City of Bowie, 274 Md. 230, 241, 335 A. 2d 679 (1975). This principle is applicable to legislation creating different classifications of public employees and affording different treatment of each class. Montgomery County v. Walsh, 274 Md. 502, 524-526, 336 A. 2d 97 (1975), appeal dismissed, 424 U. S. 901, 96 S. Ct. 1091, 47 L.Ed.2d 306 (1976).

The nature of the duties of police officers is sufficiently different from those of other public employees to justify the establishment of different procedures to be employed in disciplinary actions involving police officers. As the United States Court of Appeals for the Seventh Circuit said in Confederation of Police v. City of Chicago, 529 F. 2d 89, 92 (7th Cir. 1976), “[t]he grievance procedures to be afforded the patrolmen need not mirror in all respects those afforded other civil servants.” It is no denial of equal protection to discipline police officers differently than other governmental employees. Ahearn v. DiGrazia, 412 F. Supp. 638 (D. Mass. 1976), aff'd mem., U. S., 45 U.S.L.W. 3273 (October 12, 1976). In light of the nature of the police function and a policeman’s duties, there is clearly a rational basis for the classification. We find, therefore, that application of the appeal procedures of the Law-Enforcement Officers’ Bill of Rights does not deprive Sergeant Abbott of the equal protection of the laws.

As previously discussed, we do not reach other issues raised by Sergeant Abbott which do not relate to the jurisdiction of the circuit court or the constitutionality of the administrative procedure.

Judgment affirmed.

Appellant to pay costs.

      . With respect to the situation involving a conflict between a public general law and a public local law enacted by the General Assembly, see Maryland Code (1957, 1976 Repl. Vol.), Art. 1, § 13; Hitchins v. City of Cumberland, 208 Md. 134, 144-147, 117 A. 2d 854 (1955); Herman v. M. & C.C. of Baltimore, 189 Md. 191, 196, 55 A. 2d 491 (1947); Montgomery County v. Eli, 20 Md. App. 269, 277-278, 315 A. 2d 136 (1974). Art. 1, § 13, is, of course, not applicable where the issue is whether an enactment of the General Assembly has preempted a locally enacted law as here.


author: Sweeney, J.,

text:
    STEPHEN FRANKLIN v. STATE OF MARYLAND
    [No. 1181,
    September Term, 1975.]

      Decided December 1, 1976.

    The cause was argued before Frederick J. Singley, Jr., Associate Judge of the Court of Appeals, James F. Couch, Jr., Associate Judge of the Seventh Judicial Circuit, and Robert F. Sweeney, Chief Judge of the District Court of Maryland, all especially assigned.

      Robert B. Levin, Assigned Public Defender, with whom were Frank, Bernstein, Conaway & Goldman on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Dana

      Levitz, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Sweeney, J.,

delivered the opinion of the Court.

On September 8, 1975, Stephen Franklin was convicted of attempted robbery with a dangerous and deadly weapon by the Honorable Paul A. Dorf, sitting without a jury in the Criminal Court of Baltimore. He was sentenced to 20 years incarceration.

Franklin now attacks his conviction, asserting that his constitutional rights were infringed because the trial court failed to make a preliminary or subsequent determination of the voluntariness or trustworthiness of certain extrajudicial statements attributed to him, which were introduced by the State for impeachment purposes. Franklin also alleges that the court erred in permitting a police officer to testify as to his silence when he was asked certain questions by the officer.

The State’s primary witness was a taxicab driver, Jarrett Christian, who testified that he had picked up the Appellant and two young girls at Pennsylvania Avenue and Laurens Street in Baltimore City at approximately 9:30 p.m. on December 19, 1974. Christian testified that the females left the cab at Ashburton Street and North Avenue, and that the Appellant then directed him to drive to a certain address on Spaulding Avenue. When they arrived at that address, according to Mr. Christian, the passenger got out of the cab and knocked on several doors and then returned to the cab, walking around in front of it with his hands in his pockets and saying to him “you know what this is ... give it up.” Christian stated that he responded by attempting to flee, driving his cab up an alley at a high rate of speed, striking a pole as he did so. While driving away, he heard several gun shots and saw that the windshield of his taxi had been struck by a bullet. Christian theft jumped out of the cab and fired a pistol at his assailant, but did not know if any of the bullets struck him. He notified police of the attempted robbery, and after two policemen came to the scene and spoke to him, drove his cab back to bis garage. On his arrival at the garage, he was advised that two detectives wanted to see him at Sinai Hospital. He arrived at the hospital, he said, about an hour after the shooting incident and there he identified the Appellant, who was being treated for a gun shot wound, as the man who had been a passenger in his cab and who had attempted to iob him. In court, on the day of trial, Mr. Christian identified the Appellant as a person who “looked like” his passenger on the day of the shooting. No objection was made to the admissibility of this in-court identification.

The State’s second and last witness in its case in chief was Detective John Grimes of the Baltimore City Police Department, who testified that on the date in question he received a call directing him to go to the scene of a taxicab holdup in the 3000 block of Garrison Avenue. On arriving there he found the cab driver, Mr. Christian, who made a report to him. Grimes stated that he then canvassed the area for possible suspects, without success. Approximately an hour later, he heard a call over the police radio advising that a man was being treated for a gun shot wound at Sinai Hospital. He went to the hospital where, he stated, he “observed the defendant here sitting in the emergency room/ being treated for a gun shot wound of the left shoulder.” He said the Appellant was then dressed in hospital clothing, with his own clothing piled up nearby. Grimes testified further that he determined that none of that clothing, which consisted of a three-quarter length brown leather jacket, and a shirt, contained any bullet holes.

During Grimes’ testimony he attempted to describe his conversation with the Appellant at the hospital, and the following colloquy ensued:

“Q What did you do after viewing the Defendant and looking at his clothes?
A I interviewed the Defendant at that time. Not as a Defendant. I asked him what — how he got shot.
Q And what did he say?
A He stated that he —
MR. MEYERS: Objection.
THE COURT: Is there any objection? What’s the purpose of the objection, the reason for the objection?
MR. MEYERS: Well, Your Ho;l0r, there has been no testimony that the Defendant was advised of his rights before the interrogation.
THE COURT: No testimony that it is an interrogation.
MR. MEYERS: Well, he is asking questions, and he hasn’t advised the Defendant he has a right to counsel and so on.
THE COURT: Well, there has been no objection as to an oral confession.
MR. MEYERS: Well, here he is getting into a statement made by the Defendant. I don’t believe what it is going to be, but I think —
MR. LEWIS: Your Honor -
THE COURT: I’ll let you qualify at this point of time, not qualify as to whether it’s custodial interrogation or not.
MR. LEWIS: To avoid the problem, we will withdraw the question at this time.
THE COURT: Routine investigation, not custodial interrogation. All right. Question withdrawn.”

Grimes then testified that after talking to the Appellant, he called communications and asked to have the cab driver come to the hospital. He stated that when Mr. Christian arrived at the hospital he “observed the Defendant and stated, that is the man that tried to hold me up”. Grimes testified that he then went to an address at 4900 Queensberry Avenue, where he was given certain articles of clothing by the Appellant’s sister. He identified those articles as a jacket and a sweater and said that each contained bullet holes. He testified further that he examined Mr. Christian’s taxicab and found several “indentations” on the cab: one in the windshield, one in the side and one in the rear. After introducing certain medical records of the Appellant from Sinai Hospital, the State rested its case-in-chief.

Appellant then made a motion for a judgment of acquittal, which was denied, after which the Appellant elected to testify in his own defense. In his direct testimony, Franklin stated that on the evening in question he was on Pennsylvania Avenue preparing to go home because he felt “kind of sick”. “I take epileptic medicine, and I was slightly intoxicated, just a little bit.” He said he got into a conversation with two girls, told them he had only “a dollar and something”, and that they offered to take him home by cab. In the 2700 block of North Avenue, he said, the girls got out of the cab “giggling, you know, so I’m stuck in the cab”. He said he told the cab driver to keep going, in the hope that he would see someone who could give him the cab fare, but was unsuccessful in that effort. He then told the driver to take him to a friend’s home on Spaulding Avenue, but no one answered at that address. He testified that when he went back to the cab, the driver pointed a gun at him:

“A. He had a pistol at my face, you know. Right there I panicked, because I was shot twice. This is the third time, you know, I ran down the alley. About a second later I heard five shots. I was hit with one of them. I scared. I stopped at Garrison. He came through with the cab, and then he stopped, said, ‘Come out behind them bushes, I see you.’ Is it all right if I say what he said? ‘You behind them bushes, you black mother-fucker, come out.’ So I came out. T got one dollar, something. I live right around the corner, Queensberry, which I did, you know. You go around the corner, you get the rest of your money.’ He said, ‘No, just throw the dollar across the hood, or I’ll kill you.’ You know. So I threw the dollar across the hood. My sister take me to the hospital. I took off the bloody shirt I had on, you know, and then I put another on, and my sister threw a leather coat, she put that on. I got down to the hospital, and I was treated. Then he came in. The cab driver came in. He said, ‘Is that the one?’ He said, ‘yeah,’ and ran right back out, you know. The officer right there he questioned me where my pistol at, but I don’t own no gun. That’s how everything went, you know.
Q. Did you have a pistol with you that night?
A. No, I don’t own no pistol.
Q. Did you attempt to hold up the cab driver?
A. No.

On cross-examination, Franklin testified concerning his interrogation by Det. Grimes:

“Q. Now, when the officers came to see you at the hospital, what did you tell them happened?
A. I told them I got shot.
Q. And, how did you get shot?
A. Cab driver shot me.
Q. Didn’t you tell them that you had gotten in an argument down at Park Circle and Park Heights, and as a result of that, you had been shot?
A. I don’t know nobody there.
Q. So what exactly do you recall telling the officer?
A. That I got shot by a cab driver.
Q. And did you give a reason why you were shot?
A. I told them everything like I am telling you all. >
Q. Which is — repeat again what you told the officer, please.
A. Right.
Q. Repeat it.
A. I told them I got shot by a cab driver. You want me to repeat my statement as far as getting out the cab and running stuff?
Q. It’s your testimony then that you did not tell the officer that you were involved in a fight, someone shot you as a result of a fight?
A. Yes, sir.”

After Franklin’s testimony, the defense rested and the State then recalled Det. Grimes in rebuttal. Grimes testified as follows:

“Q. Detective Grimes, when — you previously testified that you went to the hospital and spoke with the defendant about this crime. How did he say it occurred the first time you spoke with him?
A. I asked him how he got shot.
MR. MEYERS: Objection.
THE COURT: Overruled. I’ll let it in for
impeachment purposes only at this time.
THE WITNESS: He stated that he was in a fight at Park Circle with another subject and he got shot in the back. That is when I questioned him about the clothes. He stated he came right from Park Circle to the hospital. That’s why I questioned him about the hole, why there was no bullet holes in his clothes.
Q. And how did he explain that?
A. He couldn’t.
Q. Did he say what the fight was about?
A. No. I don’t remember.
Q. Did he at any time tell you he was shot by a cab driver?
A.' No.
MR. LEWIS: No further questions.”

This case presents us with a legal question of considerable complexity, and one that is made all the more complicated and difficult because of the sparse record before us. From this record, it is difficult for us even to ascertain whether we are dealing with a custodial interrogation required to be conducted under the guidelines set out in Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), or whether the conversation between Detective Grimes and the Appellant was a noncustodial interrogation which, under Cummings v. State, 27 Md. App. 361, 341 A. 2d 294 (1975), Tillery v. State, 3 Md. App. 142, 238 A. 2d 125 (1968), and a host of other cases, would be outside of the ambit of Miranda. See Lamb v. U.S., 414 F. 2d 250 (1969); People v. Phinney, 22 N.Y.2d 288, 239 N.E.2d 515 (1968); New Jersey v. Zucconi, 50 N. J. 361, 235 A. 2d 193 (1967).

The State’s decision not to pursue its efforts to present evidence of this conversation as part of its case in chief gives strong indication that the State was fearful that this evidence might be inadmissible as being violative of Miranda; but the point is not one of primary concern as, for whatever reason, the evidence concerning the conversation was ultimately offered only in rebuttal, in an effort to impeach the Appellant’s own testimony.

Prior to the decision of the Supreme Court of the United States in Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L.Ed.2d 1 (1971), whether Miranda was applicable to testimony concerning the conversation between Grimes and Appellant would have been totally dispositive of the question, for prior to Harris the rule in Maryland was that enunciated in Franklin v. State, 6 Md. App. 572, 252 A. 2d 487 (1969), where, at 579, we said:

“If the veracity of an accused testifying in his own behalf is to be attacked by a prior inconsistent or contradictory statement made while he was undergoing a custodial interrogation, the State must affirmatively show that the statement was made after the accused had been fully advised of all of his rights and had effectively waived them in accordance with the standards prescribed in Miranda.”

Harris, however, required a material change in the Maryland rule, for in Harris the Court held that a statement made by the accused, even though inadmissible in the state’s ease in chief because of a violation of Miranda, may, nevertheless, be used for impeachment purposes. Harris was accused of unlawfully selling heroin. At trial the state made no effort in its case in chief to use statements made by Harris to police officers immediately after his arrest, conceding that those statements were inadmissible under Miranda. Harris, however, like the Appellant in the instant case, elected to testify in his own defense, and on cross-examination he was read certain statements, contradictory of his testimony at trial, and asked whether he had made those statements to police officers immediately following his arrest. In response, Harris testified that he could not remember virtually any of the questions asked of him by policemen after his arrest, nor his answers to those questions. Harris was convicted and his conviction was affirmed on appeal. The Supreme Court granted his petition for certiorari and affirmed that conviction. Mr. Chief Justice Burger, delivering the opinion of the Court, said “[i]t does not follow from Miranda that evidence inadmissible against an accused in the prosecution’s case in chief is barred for all purposes, provided of course that the trustworthiness of the evidence satisfies legal standards.” 28 L. Ed. 2d 4. The Court went on to say that “[t]he shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner’s credibility was appropriately impeached by use of his earlier conflicting statements.” Four justices dissented, stating that the opinion represented at least a partial reversal of Miranda and asserting that the state should be no more free to use unconstitutionally obtained evidence in rebuttal than in its case in chief.

Since the decision in Hams the Court has not amplified in any detail what is meant by the proviso “that the trustworthiness of the evidence [must satisfy] legal standards”, although the phrase was repeated in Oregon v. Hass, 420 U. S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570. In Hass the Court reversed the judgment of the Supreme Court of Oregon, holding that the Oregon Supreme Court was in error when it ruled that a police officer's rebuttal testimony concerning prior inconsistent statements of the accused which would not have been admissible in the state’s case in chief was, therefore, also inadmissible in rebuttal, on Fifth and Fourteenth Amendment grounds. The Court did not prescribe what was necessary to prove that the trustworthiness of such evidence satisfies legal standards, but did state that “There is no evidence or suggestion that [the] statements were involuntary or coerced.” 43 L. Ed. 2d, at 578.

Since Harris, three decisions of this court have considered the question of what is required by way of proof of voluntariness-trustworthiness before evidence inadmissible in the State’s case in chief can be later admitted for impeachment purposes, and at least one federal court of appeals and appellate courts of three other states have considered that question. In LaFrance v. Bohlinger, 499 F. 2d 29 (1974), the United States Court of Appeals for the First Circuit held that before admitting for the purpose of impeachment of a government witness a statement in which the witness admitted having stolen a car together with the defendant, the trial court should have held an evidentiary hearing on the issue of whether the statement was coerced, and if it had so found, should have excluded the statement. In Arizona v. Johnson, 505 P. 2d 241 (1973), the Supreme Court of Arizona held admissible rebuttal testimony by a police officer, which testimony would not have been admissible in the prosecution’s case in chief. The court noted with obvious approval that before that testimony had been admitted, there had been a voluntariness hearing in chambers and an appropriate finding by the trial court that the statement was voluntarily made by the defendant. Similarly, in People v. Nudd, 524 P. 2d 844, 847, the Supreme Court of California held that “the determination of voluntariness is still necessary under Harris when the statement is offered for impeachment”.

A similar conclusion was reached by the Supreme Court of Delaware in Hill v. Delaware, 316 A. 2d 557 (1974). In that case the court held that the defendants had been denied their constitutional rights when certain out of court statements were allowed for impeachment purposes, without a finding by the court that the statements were made voluntarily. The court, noting that the defendants had been advised of their Miranda rights, said, at 560, “[i]n this situation the test to be applied in determining whether use of the statement is proper is not whether the terms of Miranda have been met but, rather, whether the statement is otherwise ‘trustworthy.’ Harris v. New York, 401 U. S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1.” The court went on to say that “[a]ccordingly we remand with instructions to make a determination of trustworthiness, which includes voluntariness of defendants statements.”

We first took note of the controversy arising as an aftermath of Harris in Layman v. State, 14 Md. App. 215, 286 A. 2d 559 (1972) and in Cooper v. State, 14 Md. App. 106, 286 A. 2d 579 (1972). In Layman, decided January 31, 1972, the defendant had elected not to testify in his own defense, because of indications from the trial judge that he would permit the State to use for impeachment purposes statements of the defendant that would not have been admissible in the State’s case in chief because they were defective under Miranda. We held that since the defendant had not testified and the State, therefore, did not attempt to offer his inconsistent extra-judicial statements for impeachment purposes, there was no record upon which we could consider the question of whether the trial judge had ruled properly on the matter.

In Cooper, decided January 24, 1972, we were presented with a claim by the appellant that the court permitted the State to impeach him by prior inconsistent statements absent an affirmative showing that the procedural safeguards of Miranda were met, as prescribed by our holding in Franklin v. State, supra. In our review of that claim, however, we found that as the State pursued the matter, it never reached the point of impeachment by a prior inconsistent statement, and we said that we would “leave to another time ... the many questions Harris poses for determination when they are properly before us.14 Md. App. 116. In note 4, listing the unresolved questions posed by Harris, we asked the question: “Must there be a preliminary determination by the court that the trustworthiness of the statement satisfies legal standards? ... Hopefully, when these and other questions raised by Harris are squarely before us the Supreme Court will have furnished some guidance.”

That hope proved to be forlorn, for on February 10, 1972 we were “squarely” presented with the issue in Sabatini v. State, 14 Md. App. 431, 287 A. 2d 511 (1972). Although our decision in Sabatini did not answer all of the questions raised by Harris, we at least dealt with the question to an extent that appears to resolve the issue as it is presented to us in the case now at hand.

In Sabatini, the State called a police officer as a rebuttal witness to impeach the defendant’s testimony by proof of prior inconsistent statements. Defense counsel objected, claiming that Harris required that a prior inconsistent statement of a defendant be proved to be voluntary before it could be used to impeach the defendant. Defense counsel asked for a hearing, out of the presence of the jury, on the voluntariness of the statement, but the court declined to hold such a hearing, overruled the objection, and permitted the officer to testify. In affirming Sabatini’s conviction, we categorically rejected as no longer applicable because of Harris our prior holding in Franklin v. State, supra. Relying on Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280 (1968), wherein we observed that even though it was prudent to hear evidence on the preliminary question of voluntariness out of the presence of the jury it was not reversible error not to do so when the confession was properly admitted, we found that the refusal of the trial judge to hold a hearing on the issue of voluntariness before the impeachment evidence was admitted did not constitute reversible error. We reached this result in Sabatini from our own review of the record, which revealed that the trial court had, after the statement was admitted, heard evidence going to the point, and we found from that record that the disputed statements “were voluntarily made, assistance of counsel being effectively waived and the evidence being sufficient to show that Sabatini was not coerced, threatened, or unconstitutionally induced by hope held out or promise made.” Sabatini v. State, supra, at 451.

Because Sabatini dealt with the precise point that is now before us, we must assume that it is controlling, and that its holding is our post -Harris rule on the use for impeachment purposes of prior inconsistent statements, testimony as to which would not have been admissible in the case in chief because of failure to comply with Miranda.

It being conceded by both parties that no preliminary or separate determination of voluntariness was made by the trial judge in the present case, it is now incumbent upon us, as in Sabatini, to make an independent constitutional appraisal of the record to ascertain whether there was any evidence on the point sufficient to establish that the rebuttal evidence did satisfy legal standards. Davis v. North Carolina, 384 U. S. 737, 86 S. Ct. 1761, 16 L. Ed. 2d 895 (1966); Jenkins v. State, 25 Md. App. 551, 334 A. 2d 549 (1975); Kelly v. State, 14 Md. App. 287, 286 A. 2d 806 (1972); Walker v. State, 12 Md. App. 684, 280 A. 2d 260 (1971); Herbert v. State, 10 Md. App. 279, 269 A. 2d 430 (1970).

Such an examination is hardly an exhaustive task in this case. The testimony of Mr. Christian, the first of the State’s two witnesses, indicates that he was not present at the hospital at the time the conversation between Detective Grimes and the Appellant ensued. Mr. Christian’s testimony about the hospital is simply to the effect that he went there, saw the Appellant in a hospital gown, and advised the detective that he was his assailant. When he saw the Appellant, he was in the “vicinity with the detectives” and no one else was nearby.

Detective Grimes’ testimony about the circumstances surrounding his conversation with the Appellant is scarcely more illuminating. In his direct testimony he said that he observed the defendant sitting in the emergency room being treated for a gun shot wound of the left shoulder. The defendant was dressed in hospital clothes, with his own clothes in a pile next to him. After viewing the defendant and looking at his clothes, “I interviewed the defendant at that time. Not as a defendant. I asked him what — how he got shot.” On cross-examination, he stated that when Mr. Christian identified the defendant in the hospital, police officers, nurses and doctors were present. When he was called as a rebuttal witness, Detective Grimes’ testimony was restricted to his conversation with the defendant and he did not attempt to shed any light on the circumstances surrounding the conversation.

The Appellant, in his own testimony, said nothing that amplifies the record on the circumstances under which he had his conversation with Detective Grimes. In fact, he stated that he told the officer, while in the hospital, the same version of the evidence that he gave in his direct testimony at trial — that he had been shot by a taxicab driver. The Appellant testified further, both on direct examination and on cross-examination, that on the evening in question he was “slightly intoxicated”, “kind of sick” and was taking phenobarbital and dilantin for an epileptic condition. The record is clear that he was suffering from a gun shot wound, from which “blood was coming out”, and he also testified that he was “scared and panic[ed].” On cross-examination, he categorically denied having told the detective that he had been involved in a fight at Park Circle and Park Heights Avenue and had been shot as a result thereof.

There is simply not enough in this record to enable us to reach a conclusion as to whether the statements made by Appellant were voluntary and free of coercion or other unconstitutional inducement. The record is vague as to where in the hospital he was questioned, as to who was present during the questioning, and how long that questioning continued. We are not told exactly when he was arrested, nor where — although we are told that he was not under arrest at the time he was being questioned. The Appellant’s testimony that he was frightened, intoxicated, under the influence of narcotics, and bleeding on the night of the crime raised questions as to whether his words were voluntarily uttered at a time when he knew and understood what he was saying — questions all the more acute because of his denial that he told Detective Grimes a version of the events inconsistent with that which he gave at trial, and this record supplies no answers to those questions. Cummings v. State, 27 Md. App. 361, 341 A. 2d 294 (1975); Dempsey v. State, 24 Md. App. 8,330 A. 2d 204 (1974); Mundell v. State, 244 Md. 91, 223 A. 2d 184 (1966); Bryant v. State, 229 Md. 531, 185 A. 2d 190 (1962).

As we read Sabatini, we are required to reverse in this case, because here, as in Sabatini, there was no preliminary evidentiary hearing, and because here, unlike Sabatini, we cannot find from our own appraisal of the record any evidence which could have persuaded the trial judge of the voluntary nature of those statements.

It can hardly be argued that the error in this case is harmless error, for the defect in this record goes to the very substance of the question before the trial court: the credibility of the Appellant. Prior to Detective Grimes’ rebuttal testimony, the trial judge had heard two directly conflicting versions of what happened on the night of December 19, 1974: the cab driver’s testimony that the Appellant not only attempted to rob him, but actually fired shots at him, and the Appellant’s testimony that the cab driver had assaulted him when he was unable to pay his fare. We do not mean to suggest that the question of credibility was in equal balance between the witnesses, because of the corroborative testimony of Detective Grimes that the taxicab had bullet holes in the windshield and elsewhere; but certainly a decision as to the credibility of the witnesses was essential to a verdict in this case. The rebuttal testimony of Detective Grimes, if believed by the trial judge, was devastating to the Appellant’s credibility, not only because it consisted of a totally different version of the events from that recited by the Appellant at trial, but also because that version was given by the Appellant within hours after the event, and to a police officer to whom Appellant could have made complaint about the cab driver if the cab driver was, in fact, the actual assailant.

We find, therefore, that the failure of the trial judge to hold an evidentiary hearing on the voluntariness or trustworthiness of the Appellant’s extrajudicial statements to the officer, and the absence of any other evidence in the record showing those statements to have been freely and voluntarily given, without coercion, threats or inducements, amounts to serious error, for which this case must be remanded for retrial.

We will not, in this case, attempt to spell out in detail precisely what is required of the trial court when the State seeks, over defendant’s objection, to impeach his testimony by proof of prior inconsistent statements. Sabatini, as noted, holds that under these circumstances it is not required that a preliminary voluntariness determination be made, and so it follows that not all of the strictures attendant to the introduction of a confession as part of the State’s case in chief are applicable. See Mulligan v. State, 18 Md. App. 588, 597, 308 A. 2d 418 (1973), where Judge Gilbert discusses the standard of proof required at a suppression hearing under Jackson v. Denno, 378 U. S. 368, 84 S. Ct. 1774, 12 L. Ed. 2d 908 (1964); Barnhart v. State, supra; Smith v. State, 189 Md. 596, 56 A. 2d 818 (1948). Sabatini, however, is bottomed on the finding of this court, from the record, that the statements of the appellant there in question “were voluntarily made ... the evidence being sufficient to show that Sabatini was not coerced, threatened or unconstitutionally induced by hope held out or promise made,” and we are persuaded that these are the factors which must appear in order to meet the requirement of Harris that “the trustworthiness of the evidence satisfies legal standards.”

In Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975), we found that the trial court had misinterpreted Harris v. New York, supra, by permitting the State to impeach the appellant by rebuttal testimony that he had remained silent when asked certain questions by police officers, and we reversed the conviction. As we have noted hereinbefore, Sutton is not applicable to the case at hand, as it turned solely on the constitutional right to remain silent, and Franklin’s contention that his constitutional right to remain silent was infringed is not properly before us, as he failed to object to testimony in that regard when it was offered.

In Sutton, however, Judge Gilbert quoted, with obvious approval, from the dissent of Judge Levin in People v. McColor, 36 Mich. App. 455, 194 N.W.2d 99 (1971). We believe that a portion of that quotation bears repetition here:

“Harris concerns the Miranda warnings. The rights with which we are concerned existed before Miranda. The difficulties experienced in the enforcement of the Miranda requirements should not be seized upon to erode rights existent before Miranda.” 25 Md. App. 319

That simple statement, in our view, clearly enunciates a principle that is not only applicable to the case at hand, but to all Harris cases.

Judgment reversed: case remanded for new trial.

Costs to be paid by Mayor & City Council of Baltimore.

      . Although we hold in this case, as in Sabatini, that a preliminary voluntariness determination is not necessary before admitting prior inconsistent statements of the accused into evidence for impeachment purposes, if the entire record shows that those statements were voluntarily made, we believe it the far better practice for the trial judge to conduct an evidentiary hearing before admitting the disputed evidence. Such a hearing could quickly and concisely dispose of the question and obviate any necessity for a later exhaustive examination of the entire record.

      . Franklin’s objections to testimony on his “silence” concern the response of Det. Grimes when he was asked, when called as a rebuttal witness, how Appellant had explained the fact that the clothing he claimed to have been wearing when shot contained no bullet holes. To that question, Grimes responded: “He didn’t [explain it].” This testimony, Appellant urges, is inadmissible under United States v. Hales, 422 U.S. 171, 95 S. Ct. 2133, 45 L. Ed. 2d 99 (1975) and Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975). We are not persuaded that this testimony does, in fact, concern the Appellant’s “silence”. It is, in our view, equally susceptible to the Interpretation that the Appellant attempted to explain the absence of bullet holes in his clothing, but was unable to cogently do so. This is one more example of the inadequacy of the record in this case. The State points out, correctly, that Franklin made no objection to the question about the absence of bullet holes, and so that matter is not properly before us. Md. Rule 522 d 2. Sutton v. State, supra, at 316.

      . It is immaterial, in our view, that the prior inconsistent statements sought to be excluded in Sabatini were inculpatory, while those in the case at hand are exculpatory. For purposes of admissibility it is clear that “no distinction may be drawn between inculpatory statements and statements alleged to be merely ‘exculpatory’. If a statement made were in fact truly exculpatory it would, of course, never be used by the prosecution.” Miranda v. Arizona, 384 U. S. 436, 477; Law v. State, 21 Md. App. 13, 33, 318 A. 2d 859 (1974) Note 5.

      . See also Kidd v. State, 33 Md. App. 445, 366 A. 2d 761 filed November 3, 1976 in which Judge Moylan eloquently and exhaustively reiterates the principle that nothing in Harris obviates the State’s burden of proving that the statement of a defendant complies with traditional voluntariness standards, whether the statement is offered in the State’s case on the merits, or, as in this case, for a more limited purpose. In Kidd, as in Sabatini, the defendant had elected trial by jury, but the rules incident to the applicable standards for admitting statements of the defendant are the same, whether the trial is by jury, or by the court alone. Ralph v. State, 226 Md. 480, 174 A. 2d 163 (1961); Barnhart v. State, 5 Md. App. 222, 246 A. 2d 280 (1968). See also State v. Hutchinson, 260 Md. 227, 271 A. 2d 641 (1970).