author: Moore, J.,

text:
    MARTIN R. NEAL v. POTOMAC EDISON COMPANY et al.
    [No. 716,
    September Term, 1980.]

      Decided April 8, 1981.

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

      Donald E. Beachley for appellant.

      Gregory C. Bannon for appellee Local 771 of the International Brotherhood of Electrical Workers. Conrad Varner for appellee Potomac Edison Company.

      Note: Certiorari denied, Court of Appeals of Maryland, June 29, 1981.

   Moore, J.,

delivered the opinion of the Court.

The question for decision is whether the trial court erred in granting motions for summary judgment in favor of the defendant-appellees, Potomac Edison Company ("Edison”) (sometimes referred to below as "Employer”) and Local Union 771 of the International Brotherhood of Electrical Workers ("Union”) against the plaintiff-appellant, an employee of Edison and member of said Union. The action below was precipitated by appellant’s termination by Edison because of his "sickness and absenteeism” and the Union’s subsequent refusal to go forward with arbitration on the issue of appellant’s termination. We find that triable issues are present and, therefore, reverse the motions for summary judgment and remand for trial.

I

Appellant, Martin Neal, was employed by the appellee, Potomac Edison, from August 1969 to March 1978 as a bulldozer and crane operator at the R. Paul Smith Power Station in Williamsport, Maryland. As an employee at that plant, appellant was a member of the appellee Union. On March 6,1978, his employment was terminated by Edison as a result of "excessive loss of time due to sickness and absenteeism.” Suffice it to say, Edison, on appeal, presents a picture of appellant’s work record somewhat bleaker than it really was while the appellant, leaning to the other extreme, finds little, if any, fault on his own part.

Pursuant to the collective bargaining agreement entered into between Edison and the Union, effective at all times applicable herein, appellant filed a grievance under Article VII with Edison concerning his termination and, with the assistance of the Union, proceeded without success through the third step of the grievance procedure. Thereafter, he requested that the Union submit his claim to arbitration pursuant to the fourth step in the grievance process. The Union membership, however, voted against submitting appellant’s claim to arbitration.

Appellant thereafter filed a declaration, subsequently amended, against Edison and the Union seeking compensatory damages totalling $45,000. In the amended declaration, appellant claimed that Edison wrongfully terminated his employment by considering his past work record at Edison. Furthermore, he alleged that both Edison and the Union breached the provisions of the collective bargaining agreement by refusing to refer his grievance to arbitration and that the Union’s refusal to go forward with arbitration was discriminatory, arbitrary and in bad faith due largely to the Union’s alleged announcement to its members that it would cost $2,000 to take appellant’s grievance to arbitration — a figure which appellant characterized as a "grossly and recklessly exaggerated estimate.” Edison demurred and moved for summary judgment to the amended declaration. The Union also demurred.

The trial court, in its Memorandum Opinion, first addressed the defendant-appellees’ demurrers and concluded that Neal alleged sufficient facts to state a cause of action against both the Union and the employer. The demurrers, therefore, were overruled and no question is raised on appeal concerning them. However, the court went on to decide Edison’s motion for summary judgment which was granted as to both Edison and the Union. As to the employer, the court ruled that the Union properly exercised its discretion in not referring Neal’s grievance to arbitration. It was unnecessary, the court concluded, to reach the issue of Edison’s discharge of Neal under the rule set forth in Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967), infra, which held that a wrongfully discharged employee may bring an action against his employer only if he can establish that the Union breached its duty of fair representation.

On appeal, Neal contends that the lower court erred in granting summary judgment and that there was ample evidence from which a jury could have decided that Edison wrongfully discharged him. We agree with the appellant that the court erred in granting summary judgment for the appellees.

II

The parties are in agreement as to the principles of law herein applicable. We begin, therefore, with the rule that before a wrongfully discharged employee may bring an action against his employer, he must first establish that the Union breached its duty to him of fair representation. Vaca v. Sipes, 386 U.S. 171, 87 S. Ct. 903, 17 L. Ed. 2d 842 (1967). This breach is established by showing that the Union processed the employee’s grievance in a manner which was arbitrary, discriminatory or in bad faith. Id. 386 U.S. at 190, 87 S. Ct. at 916, 17 L. Ed. 2d at 857. In Griffin v. International Union of United Auto Workers, 469 F.2d 181, 183 (4th Cir. 1972), the Court delineated this three-pronged standard:

"A union must conform its behavior to each of these three separate standards. First, it must treat all factions and segments of its membership without hostility or discrimination. Next, the broad discretion of the union in asserting the rights of its individual members must be exercised in complete good faith and honesty. Finally, the union must avoid arbitrary conduct. Each of these requirements represents a distinct and separate obligation, the breach of which may constitute the basis for civil action.”

In Griffin, supra, Judge Sobeloff went on to explain the holding of Vaca:

"That case [Vaca v. Sipes] declared that a union is accorded considerable discretion in the handling and settling of grievances. The individual employee has no absolute right to insist that his grievance be pressed through any particular stage of the contractual grievance procedure. A union may screen grievances and press only those that it concludes will justify the expense and time involved in terms of benefiting the membership at large. Encina v. Tony Lama Boot Co., 448 F.2d 1264 (5 Cir. 1971). In the Vaca decision itself, the Court held that a union did not necessarily breach its duty of fair representation when it refused to take a member’s grievance to arbitration.” (Emphasis added.)

The Griffin Court also emphasized the necessity for avoidance of arbitrary behavior in the handling of a grievance based upon a discharge:

"While negligence in handling grievances has not been identified as breaching the union’s duty of fair representation, Bazarte v. United Transportation Union, 429 F.2d 868, 872 (3 Cir. 1970), the courts have adopted the position that a union may not arbitrarily ignore a meritorious grievance or handle it in a perfunctory manner. (Citations omitted.) Without any hostile motive of discrimination and in complete good faith, a union may nevertheless pursue a course of action or inaction that is so unreasonable and arbitrary as to constitute a violation of the duty of fair representation. A union may refuse to process a grievance or handle the grievance in a particular manner for a multitude of reasons, but it may not do so without reason, merely at the whim of someone exercising union authority. A union must especially avoid capricious and arbitrary behavior in the handling of a grievance based on a discharge — the industrial equivalent of capital punishment.”

After its decision in Vaca v. Sipes, supra, the Supreme Court again had occasion to address the nature of a Union’s duty of fair representation:

"The union’s breach of duty relieves the employee of an express or implied requirement that disputes be settled through contractual grievance procedures; if it seriously undermines the integrity of the arbitral process the union’s breach also removes the bar of the finality provisions of the contract.” (Emphasis added.)

Hines v. Anchor Motor Freight, Inc., 424 U.S. 554, 567, 96 S. Ct. 1048, 1058, 47 L. Ed. 2d 231, 243 (1976), cited in Miller v. Gateway Transportation Co., 616 F.2d 272, 277 (7th Cir. 1980).

The Maryland Court of Appeals has also spoken with respect to the Union’s duty of fair representation:

"[T]he Union is to consider carefully and fairly the alleged grievances of its members, that it is likewise to exercise its judgment and discretion fairly on behalf of its individual members in determining upon what terms it believes any grievances of theirs should be adjusted and whether such grievances should be carried to arbitration, if negotiations for settlement or adjustment fail.”

Jenkins v. Wm. Schluderberg-T.J. Kurdle Co., 217 Md. 556, 564, 144 A.2d 88, 93 (1958). See Ostrofsky v. United Steelworkers of America, 171 F. Supp. 782, 793 (1959), aff'd, 273 F.2d 614 (4th Cir. 1960).

In the instant case, appellant’s basic contention is that the Union breached its duty of fair representation when its President informed the Union membership (at the meeting when the members were to vote on the issue of whether to submit appellant’s claim to arbitration) that the cost of submitting the grievance to arbitration would be $2,000. Neal argues that this figure was a "grossly and recklessly exaggerated estimate” and resulted in the members casting a 14-12 vote against arbitration of his grievance. The Union contends that even if the appellant could prove that the $2,000 figure was mentioned at the meeting, "there would be no evidence indicating that Local 771 violated its duty of fair representation.”

Some additional background material is necessary for an understanding of Neal’s grievance against the Union: In May 1978, about two months after Neal’s termination, the Executive Board of the Union heard appellant’s case in his presence. It decided that the decision of whether to present appellant’s dispute to an arbitration panel was to be voted upon by the Union membership. It was at the membership meeting, where the voting occurred, that appellant claims the Union failed adequately to represent him. There is disagreement as to what was said at this meeting. Appellant was not present. He testified in his deposition, however, that someone at the meeting (whom he specifically named) told him that the President of the Union, George Sword, informed the Union members that it would cost the Union $2,000 to submit appellant’s claim to arbitration. Furthermore, appellant testified that the same figure was mentioned by Sword in his presence, and in the presence of others, on numerous occasions. Appellant also testified that Sword told him that "the Union would not waste the money to take it to arbitration.” These assertions were not disputed nor, indeed, mentioned in Sword’s deposition, taken some two months after Neal’s.

With respect to the cost involved if and when the Union refers a grievance to arbitration, the only relevant evidence in the record is found in the deposition of Robert Bowen, the Personnel Director of Potomac Edison. He testified as follows:

BY MR. MACKLEY [Attorney for Neal]:
"Q. The expense for that [outside] arbitrator that you and the president [of the Local Union] select out of this list, would it be correct to say that in those other arbitration cases involving the other union that you and the union split equally the cost of that arbitrator?
(OBJECTED TO BY MR. VARNER) [Attorney for Edison]
A. That would be right.
Q. During the seven (7) years that you’ve been Personnel Director involved in these arbitration cases you’ve spoken of, can you give me an estimate • about what they cost for the outside arbitrator ... normally runs which you and the union divide?
(OBJECTED TO BY MR. VARNER)
A. Approximately Nine Hundred ($900.00) Dollars, somewhere in that area.
Q. That would be the total cost before splitting?
A. That’s right.
Q. Would there have been some that run less than Nine Hundred (900)?
(OBJECTED TO BY MR. VARNER)
A. I’d have to go back and check the records, but I think that would be a fair statement.
Q. What, according to your recollection, is the approximate average cost that you pay for such an outside arbitrator for a one (1) day hearing?
BY ATTORNEY VARNER:
Objection. Answer if you know.
A. The cost I’ve given you indicates the costs for a one (1) day hearing plus the expenses.”

Thus, the uncontradicted testimony of Bowen establishes that the Union’s cost in obtaining an outside arbitrator is one-half of $900 or $450 "plus the expenses.”

We observe, however, that there is no testimony which addresses either the nature or amount of any other expenses incurred by the Union when it submits a grievance to arbitration. Whether such expenses may arise in other arbitration cases is also unclear although provision for their payment is made in paragraph 46 of the collective bargaining agreement:

"Each party shall bear the expense of preparing and presenting its own case and the expense of its own arbitrator and shall pay one-half of the expense of the third arbitrator.”

Based upon the meager record before it, the trial court granted the Union’s motion for summary judgment and said:

"The testimony of Robert W. Bowen, establishes the cost of only one day of arbitration to be $900.00 exclusive of attorneys’ fees. The uncontroverted evidence, when examined in connection with the union officers’ statements as to the possible cost of arbitration, clearly establishes the union’s conduct to be within the 'wide range of reasonableness’ prescribed by Ostrofsky v. United Steelworkers of America, supra. There are no facts to sustain an allegation of gross or reckless action by the union. It exercised its discretion.”

We disagree. The only uncontroverted evidence was that of Bowen who testified that the Union’s cost for an outside arbitrator for a one-day hearing was one-half of $900 or $450, plus the expenses. If such constitutes the only cost incurred by the Union in submitting appellant’s claim to arbitration, it could not be held, as a matter of law, that the Union’s refusal to submit appellant’s claim was not "arbitrary, discriminatory, or in bad faith.” In any event, the trial court was incorrect in finding that the cost of one day of arbitration, exclusive of attorneys’ fees, is $900. The $900 figure given by Bowen pertained only to the cost of an outside arbitrator. Furthermore, it is unclear whether Bowen’s statement: "[t]he cost I’ve given you indicates the costs for a one (1) day hearing plus the expenses,” includes or excludes attorneys’ fees. Indeed, the record does not disclose whether attorneys’ fees would even be incurred by the Union or the nature of any other "expenses [in] preparing and presenting its own case.” Finally, the record does not disclose the anticipated duration of the arbitration hearing.

We hold that a genuine issue of fact was presented as to whether the Union’s conduct was "discriminatory, arbitrary, or done in bad faith,” by its announcement that the cost of referring appellant’s claim to arbitration was $2,000. Summary judgment should have been denied. Maryland Rule 610. Whether appellant was properly terminated by Edison is an issue which may be reached at trial.

Judgment reversed; case remanded for trial; costs to be paid equally by the appellees.

      . Depositions reveal that Edison considered the entire work record of the appellant in making its decision. However, in his brief, appellant emphasizes the following event as a prelude to his termination: On March 3, Í978, while home on a prearranged vacation day, Neal called the plant superintendent and requested that it be treated as a sick leave day instead because Neal claimed that he was sick that day. He was told, at that time, not to report to work until he heard from Potomac Edison. The notification of termination of March 6, 1978 followed.

      . Robert Bowen, Personnel Director of Edison, testified in his deposition that prior instances of alleged misconduct by appellant included: his failure to work overtime in an emergency on several occasions which resulted in a total of five and one-half days of suspension, for not having a sufficient reason for failing to appear at work on January 23, 1978, and for leaving his job on other occasions before it was completed.
      Appellant, however, testified in his deposition that he was subsequently cleared of the charge of excessive sickness and absenteeism at a meeting on March 28, 1978. Apparently, this fact was not refuted. With respect to the other allegations, appellant stated that a meeting to discuss his failure to work overtime was never held. In any event, he claimed that no "emergency” existed at the plant on those days when he was asked to work overtime. Finally, his excuse for his absence on January 23, 1978 was a sickness certificate signed by his doctor’s receptionist, but not the doctor.

      . The first three steps in the grievance procedure as set forth in the collective bargaining agreement are as follows:
      "The procedure for settling a grievance, dispute, question, or controversy arising under this agreement (unless any step thereof is waived, or changed by mutual consent) shall be as follows:
      A. Between the aggrieved employee and his immediate supervisor. (Employee if he so desires may be accompanied by a member or members of the Grievance Committee to act in his behalf.) In case the dispute is between the Union and the Company, this step may be omitted and the procedure will begin with the next following step.
      B. Between a member or members of the Committee and the Station Superintendent.
      C. Between an International Representative of the Brotherhood and the Director of Employee Relations of the Company, or his authorized representative.”
      Although Neal testified that he skipped the first step, the parties do not contest this point nor do they question whether the other two steps were precisely followed.

      . With respect to arbitration, the collective bargaining agreement provides:
      "46. All of the foregoing steps having been taken in the order named without a satisfactory adjustment of the grievance, then, there shall be created a Board of Arbitration to be composed of one representative of the Union, one representative of the Company and a third impartial member who will act as Chairman, to be designated by mutual consent of the other two members. In the event the members of the Board of Arbitration fail to select a third member within one week, they shall jointly request the Director of the Federal Mediation and Conciliation Service to submit a list of five (5) arbitrators from whom one shall be selected by the two members of the Board. The Board of Arbitration shall meet at the place chosen by their mutual consent and shall render a decision on the merits of the case. The Board of Arbitration shall have no authority to add to or subtract from or modify any of the terms of this agreement or any agreement supplemental hereto. The written decision of a majority of the Board shall be final and binding upon the Company, and the Brotherhood, and the employees in the Unit, for the period of this agreement or any extension thereof. Each party shall bear the expense of preparing and presenting its own case and the expense of its own arbitrator and shall pay one-half of the expense of the third arbitrator. This provision shall not be construed to prevent further conferences between the parties hereto for the purpose of settling the dispute at any time before the decision of the Board of Arbitration.” (Emphasis added.)
      The literal language appears to create a mandatory obligation for the Union and the employer to submit all grievances to arbitration when the preceding steps do not result in a satisfactory adjustment. Appellant, however, did not pursue this point. We observe that Robert Bowen, Personnel Director of Edison, testified at his deposition that he could not recall any grievance that was submitted to arbitration by Local 771 since 1970. Despite the apparent mandatory language of this section, a screening process by the Union which ferrets out and eliminates frivolous grievances, is proper. See Vaca v. Sipes, 386 U.S. at 191-93.

      . Conspicuously absent is testimony concerning the cost of a party’s own arbitrator.


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    IMAS GRUNER & ASSOCIATES, LTD. v. PLANO STRINGER et ux.
    [No. 731,
    September Term, 1980.]

      Decided April 9, 1981.

    The cause was argued before Thompson and Lowe, JJ., and Charles E. Orth, Jr., Associate Judge of the Court of Appeals (retired), specially assigned.

      Jacob Sheeskin, with whom were Sheeskin, Hillman & Lazar, P.C. on the brief, for appellant.

      Victor L. Crawford and Charles F. Chester for appellees.
   Thompson, J.,

delivered the opinion of the Court.

The issue before us on this appeal is whether a contract for the sale of real property is so ambiguous as to be unenforceable, where the contract provides that the sale is contingent upon the buyer’s ability to obtain financing, but fails to set forth the terms of the financing.

Plano Stringer and his wife, Edith Stringer, appellees (sellers), owned a parcel of land located in Gaithersburg, Maryland. On February 23, 1978, Imas Gruner & Associates, Ltd., appellant (buyer), contracted to buy the property for $225,000 and deposited $20,000 with the sellers’ agent, Allied Realty Corporation. The agreement was a standard printed form contract supplied by the realtor, to which typewritten and handwritten additions were made. The agreement provided that it was "contingent on the ability of the Purchaser to secure or receive a commitment for the herein described financing” and obligated the buyer to "pursue diligently” its efforts to obtain financing. It further provided that the buyer was to procure financing within 120 days of the execution of the contract; the parties later extended this time for an additional 45 days. Under the contract, if the buyer did "not obtain the specified financing within the time stated,” the agreement was to be null and void and the deposit was to be returned to the buyer. The references to the "herein described financing” notwithstanding, the only description of the financing which the contract contained was "conventional loan financing”; the blank spaces provided in the form for the insertion of the amount, the term, and the interest rate of the loan were not filled in. After the expiration of the 165 day period, the buyer notified the sellers that it had been unable to obtain financing and demanded that they return the deposit. Following the sellers’ refusal, the buyer filed suit to recover the deposit in the Circuit Court for Montgomery County.

At the close of all the evidence, the buyer moved for summary judgment on the grounds that the omission from the contract of the specific terms of the financing which the buyer was to obtain indicated that there had been no "meeting of the minds” on an essential term of the contract. This motion was denied by the trial judge. He held that, in the absence of express, specific terms in the agreement, the buyer was obligated to seek and accept "reasonable” financing, which he defined as financing which was offered on terms equivalent to those available under market conditions and which would be acceptable to the average borrower exercising sound business judgment. He instructed the jury that, if they found that the buyer had made reasonable efforts to obtain reasonable financing and had failed, they were to return a verdict, in the amount of the deposit, for the buyer; if they found that the buyer had not made reasonable efforts or that the buyer had been offered reasonable financing and had rejected it, they were to return a verdict for the sellers. The jury returned a verdict in favor of the sellers and a judgment in the amount of the deposit was entered.

The buyer’s sole contention on this appeal is that the contract was, because of the omitted terms, so ambiguous that it was unenforceable. It argues that the "trial judge ... was incorrect in interpolating ... a requirement that the [buyer] must have made reasonable efforts to obtain financing which would have been available to it under the terms and the conditions of the market at that time.”

In Nusbaum v. Saffell, 271 Md. 31, 36-37, 313 A.2d 837 (1974), the Court of Appeals stated:

"In Quillen v. Kelley, 216 Md. 396, 140 A.2d 517 (1958), Judge Prescott, for the Court, delineated the circumstances under which specific performance will be decreed:
'It needs little, if any, citation of authority to sustain the statement that if an agreement be so vague and indefinite that it is impossible to collect from it the full intention of the parties, it is void, Strickler Eng. Corp. v. Seminar, 210 Md. 93, 101, 122 A.2d 563, Robinson v. Gardiner, 196 Md. 213, 217, 76 A.2d 354, and the vendee is entitled to a refund of any payments made upon the purchase price. Globe Home Impvt. Co. v. Brothers, 204 Md. 73, 74, 102 A.2d 748. But courts are reluctant to reject an agreement, regularly and fairly made, as unintelligible or insensible. The agreement will be sustained if the meaning of the parties can be ascertained, either from the express terms of the instrument or by fair implication. The law does not favor, but leans against the destruction of contracts because of uncertainty; therefore, the courts will, if possible, so construe the contract as to carry into effect the reasonable intention of the parties if that can be ascertained. Middendorf, W & Co. v. Milburn Co., 134 Md. 385, 387, 388, 107 A. 7. Cf., Trotter v. Lewis, 185 Md. 528, 45 A.2d 329; Schloss v. Davis, 213 Md. 119, 131 A.2d 287.’ 216 Md. 407 (emphasis added).
"We have consistently adhered to these principles where a question of indefiniteness has arisen in specific performance cases, Chambers v. Jordan, 257 Md. 144, 262 A.2d 505 (1970); Paape v. Grimes, 256 Md. 490, 260 A.2d 644 (1970); Gilbert v. Banis, 255 Md. 179, 257 A.2d 206 (1969).”

Under a variety of circumstances, the Court of Appeals has held that there was an implied requirement of reasonableness where a contract failed to expressly set forth a term. See, e.g., Caplan v. Buckner, 123 Md. 590, 602, 91 A. 481 (1914) (where contract fails to specify time in which mortgage was to be made payable, reasonable time implied); Lawson v. Mullinix, 104 Md. 156, 64 A. 938 (1906) (where contract for sale of land fails to specify time for conveyance and payment, reasonable time will be implied).

It has been held by the courts in at least two states that, under the circumstances such as those presented in the instant case, where the parties omit from the contract the terms of the financing to be obtained, the contract will be interpreted as requiring that the buyer make reasonable efforts to obtain reasonable financing. See, Smith v. Vernon, 6 Ill. App. 3d 434, 286 N.E.2d 99, 101-02 (1972) ("When details as to specific types or methods of financing are omitted, the clause must be interpreted as requiring that the terms of any offered mortgage be reasonable. . . . This requirement of reasonableness is not a subjective standard ...[;] reasonableness is to be determined and interpreted by the court according to business practice and custom ....”); Betnar v. Rose, 259 Ark. 820, 536 S.W.2d 719, 723 (1976) ("The writing contained no specifics regarding just what efforts [buyers] were to have made or what terms they were to have accepted for a loan, but in the absence of such specifics, [buyers] had the duty to make a reasonable effort and to accept reasonable terms in order to satisfy the condition of the agreement relating to the return of the [deposit].”). See, generally, Annot. 78 A.L.R.3d 880 (1977).

Maryland has been unwilling to go quite so far. In Smith v. Biddle, 188 Md. 315, 52 A.2d 473 (1947), the Court of Appeals reversed the decree for specific performance, sought by the buyer, on the grounds that the contract for the sale of the land involved was too vague and uncertain to be enforced. The uncertainty found resulted from the failure of the contract to specify the term, the interest rate, and the amortization schedule of the mortgage which the contract required. In Standard American Homes v. Pasadena Co., 218 Md. 619, 147 A.2d 729 (1958), the Court affirmed the denial of specific performance sought by the buyer of certain real property, where the contract failed to mention the time, mode, interest rate, or terms of payment of the mortgage required. In Lambdin v. Przyborowski, 250 Md. 108, 242 A.2d 150 (1968), where the contract of sale was contingent on the buyer obtaining financing in a specified amount, specific performance, sought by the sellers, was denied because the contract failed to specify the interest rate and amortization schedule of the financing to be obtained. The Court also held that the buyers were entitled to the return of their deposit. In Paape v. Grimes, 256 Md. 490, 260 A.2d 644 (1970), the Court overruled Smith v. Biddle, Lambdin v. Przyborowski, and similar cases "[t]o the extent that ... [they].. . imply that where a contract expressly provides for interest, the rate of interest must be specifically stated in order for the contract to be definite enough to be specifically enforced .. ..” 256 Md. at 496. It was held that, where a contract failed to specify the rate of interest, the legal rate was implied. The Paape holding however was very limited; in a subsequent case, Chambers v. Jordan, 257 Md. 144, 151, 262 A.2d 505 (1970), the Court denied specific performance, sought by the buyer, where the contract "specified neither term, interest rate nor when payments of interest or principal would be payable.”

As noted, the cases cited were suits in equity for specific performance. The case at bar involves an action at law for return of the deposit. Despite that distinction, we note that in at least two of the specific performance cases the court directed that the deposit be returned. Lambdin v. Przyborowski, 250 Md. 108, 242 A.2d 150 (1968) and Globe Home Impvt. Co. v. Brothers, 204 Md. 73, 102 A.2d 748 (1954). The Court of Appeals has consistently refused to enforce contracts, contingent on financing, which, as in the case at bar, fail to specify the amount, the term, and the interest rate of the financing; therefore we hold that the contract in the instant case was too ambiguous to be enforceable.

Judgment reversed.

Cgse remanded for entry of judgment for appellant in amount of $20,000.

Appellees to pay the costs.

      . The evidence adduced at trial was in conflict. The buyer’s vice-president and treasurer, Juan Grunner, testified that he had contacted several commercial lenders but had been told by each that no money was available. He specifically denied that any lender had made a firm offer to finance the acquisition of the property. The sellers testified that, at a meeting held on June 16, 1978, Mr. Grunner told them that he had been offered financing but had rejected it because he was unwilling to pay the interest rate at which it was offered. Also introduced was a letter from the buyer to the sellers which indicated that the buyer’s decision not to purchase the property was based on dissatisfaction with the interest rates then being charged, rather than an inability to obtain financing.

        . Had the contract specified the financing to be obtained, the court below would have been correct in holding that the buyer was obligated to make reasonable efforts to obtain the financing, even if no such obligation was expressed. See, Traylor v. Grafton, 273 Md. 649, 689, 332 A.2d 651 (1975): Bushmiller v. Schiller, 35 Md. App. 1, 8, 368 A.2d 1044 (1977).


author:
Weant, J.,
      Wilner, J.,

text:
    HOWARD TURNER and MARK TYRONE WILLIS v. STATE OF MARYLAND
    [No. 765,
    September Term, 1980.]

      Decided April 9, 1981.

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

      Morris Lee Kaplan for appellant Willis. William A. Beale, Assigned Public Defender, for appellant Turner.

      Thomas P. Barbera, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Ara Crowe, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Weant, J.,

delivered the opinion of the Court. Wilner, J., filed a dissenting opinion at page 380 infra.

In this matter we have the appeals of Howard Turner and Mark Tyrone Willis, Mr. Turner’s appeal being from convictions in the Criminal Court of Baltimore for murder in the first degree; unlawful use of a handgun in the commission of a crime of violence; unlawfully wearing, carrying, and transporting a handgun upon his person; and robbery with a dangerous and deadly weapon; and Mr. Willis’s appeal being from a conviction of murder in the second degree.

On or about 15 September 1979, at around 6:00 a.m., one Vernon Hoshall was shot and killed and his watch and wallet were stolen. At the same time John Morris, one of the assailants, was shot in the left shoulder by his fellow accomplice Howard Turner. Thereafter, the wounded Mr. Morris ran from the scene of the shootings to a nearby apartment where he was met by Thelma Williams and Dennis Atkinson. At the appellants’ trial John Morris testified that upon his arrival at the Williams-Atkinson apartment he told Thelma Williams that he had been shot by Howard Turner when "we was robbing this man.” He also testified that he gave her a watch that he had taken from Mr. Hoshall, along with the instruction that she hold it for him. At that time he asked someone to call an ambulance for him. This was done and he was taken to Provident Hospital. At the trial Ms. Williams and Mr. Atkinson confirmed what John Morris purportedly said while he was at their apartment.

Shortly after Mr. Morris arrived at the aforementioned apartment, Mark T. Willis "and some other dude” arrived. Thelma Williams testified that "[t]hey [Mr. Willis and the other person] was talking to the boy [John Morris] and told him for to come on [with them] but he said no, he had a bullet in his back and he was waiting for the ambulance. Then Mark and the other two went in the bathroom and went out the window and went off the roof.” Later, the victim’s wallet was found on the roof. Other facts will be forthcoming as we entertain the individual appeals.

Howard Turner

This appeal presents the following questions:

I. Whether the Trial Court erred in refusing to grant Motions for Judgment of Acquittal or for New Trial because the State’s case against Appellant consisted entirely of uncorroborated statements and testimony of an accomplice.
II. Whether the Trial Court committed reversible error in refusing to disqualify a juror who indicated during the course of the trial that he recognized the prosecution’s witness to be a former employee of his.
III. Whether the Trial Court erred in refusing to grant a Motion for Mistrial when the State elicited testimony concerning previous incarceration of Appellant.
IV. Whether the Trial Court erred in refusing to grant a Motion for New Trial after allowing a juror to impeach her verdict.

I.

This complaint relies upon the Maryland law that holds that the testimony of an accomplice must be corroborated by independent testimony or evidence, however slight. Brown v. State, 281 Md. 241, 378 A.2d 1104 (1977). In the instant case the testimony of the accomplice John Morris was also presented through that of two witnesses, under an exception or exceptions to the hearsay rule, in order to bolster the charges against Howard Turner.

It is argued by the appellant Turner that even though the statements relied upon were also presented by way of the testimony of persons other than the accomplice, this "does not convert th[ose] statement! s] into something other than the words of an accomplice under the facts of the case at bar.” Nevertheless, it is argued by the State that the trial court’s admission of these statements under the exception to the hearsay rule, that is, an admission against penal interest made as an excited utterance, not only did no injustice to the rationale of the corroboration rule, but satisfied it as well. While at first blush the State’s argument appears to be a sort of bootstrapping proposition, we perceive the merit in this thesis. We confine our discussion, however, to the excited utterance exception and the hearsay rule.

In considering the excited utterance exception as an adjunct to the corroboration of an accomplice’s testimony, we look to the statement of this Court in Reckard v. State, 2 Md. App. 312, 316-17, 234 A.2d 630, 632-33 (1967), cert. denied, 248 Md. 734 (1968):

To constitute res gestae an utterance need not in all strictness be contemporaneous, in the sense of simultaneous, with the principal act; it may be subsequent to it, provided there has not been time for the exciting influence to lose its sway and be dissipated by meditation.
The point is not so much the lapse of time or change of place as the continuance of the situation which insures that what is said is, in fact, a spontaneous reaction to the occurrence, rather than an independent, preconceived action of the speaker’s will. [Citation omitted].

Similarly, this Court said in the case of Honick v. Walden, 10 Md. App. 714, 272 A.2d 406 (1971) at page 717, 272 A.2d at 408, that "[s]uch declarations [res gestae] are deemed trustworthy, since they are the product of nervous excitement rather than deliberation and represent the facts talking through the party rather than the party talking about the facts.” (Citation and footnote omitted). In 6 J. Wigmore, Evidence § 1747 (Chadbourn rev. 1976), the author said of the exception of excited utterance:

This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or at least as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him, and may therefore be received as testimony to those facts. [Footnote omitted.]

Somewhat analagous to our situation here is the holding in this and other states that testimonial incompetence is no bar to an excited utterance. In Moore v. State, 26 Md. App. 556, 338 A.2d 344, cert. denied, 276 Md. 747 (1975), this Court considered with approval the admission of the testimony of a three and one-half year old child under the res gestae or excited utterance principle. In so doing, Judge Moylan, in speaking for the Court, quoted with approval, at pages 561-62, 338 A.2d at 347, McCormick, Law of Evidence 582 (1st ed. 1954):

"Must the declarant be shown to have met the tests of competency for a witness? In general, it seems not. The declarant is not usually before the court to be examined as to his competency, and the declarations furthermore come in only under special safeguards — here, the requirement of excited utterance — which diminish the need for further caution. Consequently, it is held that evidence of spontaneous declarations of infants is admissible despite the incompetency of the child as a witness. Such is also the rule in the case of an insane declarant, or one incompetent by reason of conviction of a felony, or where the declaration was made by the husband or wife of the accused in a criminal case.” [Original emphasis.]

At page 566, 338 A.2d at 349, Judge Moylan continued:

In the case at bar, this three and one-half year old child was in acute distress and suffering significant pain in a hospital emergency room within hours after the inflicting of massive injuries. It is stating the obvious to hold that the trial judge did not abuse his discretion in concluding that the declaration in issue was surrounded by substantial guarantees of trustworthiness and was not uttered designedly with a view to making evidence. Under those circumstances, it was clearly admissible.

Immediately after he was shot in the shoulder, the declarant ran directly from the scene of the robbery in which he had participated to the apartment of the witnesses. He arrived there within minutes of the shooting; bleeding, in pain, and seeking an ambulance. It was then that he uttered the incriminating statements. It is clear that John Morris was under the immediate and uncontrolled domination of his senses at the time his out-of-court statements were made to Thelma Williams and Dennis Atkinson. At that moment it would have gone beyond the bounds of reason that he could have been able to fabricate a statement of accusation " 'either to gratify his malice or shield himself from punishment, or in the hope of receiving clemency by turning State’s evidence.’ ” Brown, supra, 281 Md. at 244, 378 A.2d at 1107 (quoting Watson, supra, 208 Md. at 217, 117 A.2d at 552). This is a fine example of "the facts talking through the party rather than the party talking about the facts.” Honick, supra, 10 Md. App. at 717, 272 A.2d at 408.

Consequently, we hold that the witnesses’ testimony as to Mr. Morris’s excited utterance wherein he implicated Howard Turner in the participation in the crime against Vernon Hoshall, is sufficient corroboration of Mr. Morris’s in-court testimony that the appellant shot the victim. Hence, the trial court was correct in refusing to grant Mr. Turner’s Motions for Judgment of Acquittal or for a New Trial because the testimony of his accomplice lacked corroboration.

II.

The appellant complains because the trial court refused to disqualify a juror who, during the course of the trial, indicated that he recognized a witness as having been an employee of a supermarket he had managed. According to the juror, the witness in question had worked for him for three to six months, approximately seven and a half years before. The appellant’s motion to disqualify this juror and substitute an alternate was denied by the court after it had questioned the juror as to whether or not the fact that he knew a witness would prevent him from rendering a fair and impartial verdict. The juror maintained that the knowledge that he had of the witness would not enter into his deliberations.

In the case of Mills v. State, 12 Md. App. 449, 279 A.2d 473, cert. denied, 263 Md. 717 (1971) and 406 U.S. 967, 92 S. Ct. 2411, 32 L. Ed. 2d 666 (1972), this Court considered the question of a juror’s discovery that she knew one of the witnesses. In this regard the Court, at page 459, 279 A.2d at 481, said through then Chief Judge Murphy that "[t]he relation of a juror to a witness may present an opportunity for prejudice. Bristow v. State, 242 Md. 283. However, mere relation or mere acquaintance is not a sufficient basis for challenging a juror for cause. Baker v. State, 3 Md. App. 251, Borman v. State, 1 Md. App. 276.”

In the case at bar the appellant has failed to successfully demonstrate, nor can we find, any prejudice or abuse in the trial court’s decision not to disqualify a juror under the circumstances presented. We think that the court acted properly in this regard.

III.

The instance complained of occurred during the cross-examination of the appellant’s co-defendant Mark T. Willis. In response to the State’s question whether or not "[t]he two of you [meaning Willis and Turner] became friends,” Mark Willis said "[y]eah.” The next question brought about the response objected to: "Q. Hang around together? A. No, because he was locked up then.” A motion for a mistrial was requested and denied. The court then instructed the jury as follows: "Members of the jury, the last remark of the witness concerning Mr. Turner is to be ignored by the jury. It has nothing to do with the case and should not be considered by you in any manner.” Obviously, the response given by the appellant Willis was inadvertent and unexpected. In addition, the court instructed the jury to disregard the statement since it had nothing to do with the case. In fact, the bald statement that "he was locked up then” would seem to carry very little prejudicial information. We find no merit in the appellant’s contention to the contrary.

IV.

Mr. Turner seeks a new trial because of the alleged impeachment by a juror of the verdict. The appellant argues that Dixon v. State, 27 Md. App. 443, 340 A.2d 396, cert. denied, 276 Md. 741 (1975) "clearly implies that there may be circumstances under which the verdict of a juror may be impeached.” We gather that the appellant seeks succor from the statement of the Court in that case at page 448, 340 A.2d at 400, i.e., that "[cjourts, however, are reluctant to lay down an ironclad rule which would, under all circumstances, preclude jurors from impeaching their own verdict.” However, on the same page we find the statement: "We, in Maryland, have recognized that 'a jüror’s affidavit, or testimony tending to prove the fact set forth in the affidavit, might be introduced in an appropriate independent criminal proceeding.’ ” (Quoting Williams v. State, 204 Md. 55, 71, 102 A.2d 714, 722 (1954)). Thereafter the Dixon Court continued its quoting of Williams, approving that cases’s dictate that " 'under no circumstances’ is a juror’s affidavit or testimony 'admissible to impeach the juror’s own verdict at the hearing of the motion for a new trial. ’ (Emphasis supplied.)” 27 Md. App. at 449, 340 A.2d at 400.

In the case sub judice the question of impeachment was raised at the polling of the jury and by the responses of juror number 12.

THE CLERK: Juror No. 12, you’ve heard the verdicts of your Forelady, are your verdicts the same as hers?
JUROR NO. 12:1 was the one kind of undecided.
THE COURT: Have you decided? You agree with these verdicts as announced by your Forelady?
JUROR NO. 12: I agree, yes.
THE COURT: I beg your pardon?
JUROR NO. 12: Yes, I do.
THE COURT: And they are your verdicts as announced by the Forelady?
JUROR NO. 12: Yes.
THE COURT: Your verdicts are the same as hers, are they?
JUROR NO. 12: Yes.
THE COURT: She says yes. All right, Mr. Clerk.

Thereafter, a conference was held in chambers among the judge, the juror, and counsel. However this conference was not recorded and there is nothing on which this Court can rule in this regard.

It is argued by the appellant Mark T. Willis that when the jury was polled the presiding judge was immediately put on notice that he should have sent the jury back to the jury room and kept juror 12 in the courtroom for the purpose of probing into the situation. However, it is obvious from the above colloquy between juror 12 and the judge that the court did so probe, and as a result was satisfied that the verdict was the juror’s own.

Thereafter, a hearing was had on the appellant’s motion for a new trial at which the court mistakenly allowed, over the objection of the State, testimony prohibited by Dixon, supra. At this hearing juror number 12 told the court that she had indicated to the other jurors that she was not "ready to make my decision,” but nonetheless admitted several times that her verdict was guilty. It was established by the court that juror number 12 informed the other members of the jury that her "verdict was guilty in the same manner as theirs.” On cross-examination of juror number 12 the following took place:

Q. Well, did you agree with the verdict of the Foreman?
A. The Foreman did not know — no, not with the Foreman.
Q. When it was announced in the court I’m talking about.
A. Yes, I did. Yes, I did.

Even had this testimony been admissible, it certainly would not have been sufficient to impeach the verdict of a lone juror, long after the entire jury had been polled.

Mark Tyrone Willis

This appeal presents the following questions:

[1.] The Court was in error in refusing to grant the Appellant’s Motion for a judgment of acquittal at the end of the State’s case and at the conclusion of the entire case.
[2.] The Court should have granted [his] Motion to Disqualify Juror based on the fact that Juror No. 7 had worked for the same company as the State’s witness.
[3.] The Court should have granted the Motion to Impeach the jury’s verdict.

1.

Here again we have the argument that the testimony of an accomplice requires corroboration to sustain a conviction. In this instance the testimony of the accomplice John Morris was corroborated by the testimony of Thelma Williams and Dennis Atkinson. Their corroboration went beyond the mere repetition of the excited utterance or admission against interest discussed in section I of appellant Turner’s arguments. Moreover, as to Mr. Willis’s contention that Ms. Williams and Mr. Atkinson were accomplices, we note that he has failed to meet his burden of so proving. Bennett v. State, 283 Md. 619, 622-27, 392 A.2d 76, 77-81 (1978). Hence, the general rule that the testimony of an accomplice is sufficient to convict without corroboration has not been contravened.

2. and 3.

These propositions are similar to those raised by appellant Turner and are fully answered in sections II and IV, supra.

Judgments affirmed.

Costs to be paid by the appellants.

Wilner, J.,

dissenting:

I must regretfully and respectfully dissent from the Court’s conclusion, in Turner’s appeal, that the testimony given by the accomplice Morris was sufficiently corroborated or indeed was corroborated at all. The corroboration found by the Court consisted of the very words of Morris, and not any independent evidence. In effect, through the mouths of Williams and Atkinson, Morris has corroborated himself, and it occurs to me that the Court’s first blush was the correct one. The State’s argument is "a sort of bootstrapping proposition.”

The majority concludes that Morris’s statements to Williams and Atkinson were reliable becaue they were excited utterances and because they were reliable, they may be given double effect — as primary evidence and as corroboration of that primary evidence. I find this a bit troublesome, for I know not where it leads.

The hearsay rule is riddled with exceptions, each and every one of which is based on the presumed reliability of evidence meeting the requirements of the exception. Is the rule of this case then to be applied not merely to excited utterances but to evidence admitted under some other exception to the hearsay rule? Could the testimony of an accomplice be corroborated, for example, by out-of-court declarations of the accomplice admissible as a declaration against penal or pecuniary interest or by his own written statement, if that statement proved to be admissible as a record kept in the ordinary course of business?

We are not dealing here with whether the out-of-court statements of Morris are reliable, but only whether they suffice as independent corroboration of his testimony; and I fail to see how they can. In Brown v. State, 281 Md. 241 (1977), the Court observed in defense of retaining the requirement of corroboration (p. 246): "We see as much need today, perhaps more so in view of the escalating prosecutorial trend freely to utilize accomplices as State witnesses, to retain the requirement that a person accused of crime not be convicted on the uncorroborated testimony of an accomplice.”

Howard Turner may well have been guilty of robbing and killing Vernon Hoshall, but the problem is that he was convicted solely by the words of his accomplice John Morris without any corroboration thereof. For that reason, I would reverse his conviction.


text:
    KENNETH EDGAR POLK v. STATE OF MARYLAND
    [No. 781,
    September Term, 1980.]

      Decided April 9, 1981.

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

      Arthur A. DeLano, Jr., Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Michael A. Anselmi, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Neal P. Myerherg, State’s Attorney for St. Mary’s County, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

This appeal presents anew the issue of the admissibility of hypnotically induced testimony. The testimony here was that of an eight-year-old boy, the prosecuting witness in the trial of appellant, a forty-year-old man, for alleged sexual offenses. Under the circumstances shown, and for the reasons stated, we reverse and remand for a new trial.

I

The appellant, Kenneth Edgar Polk, resided in St. Mary’s County in a common-law relationship with Sharon K. Crusie, a divorcee, and her two subteen daughters. Their next-door neighbors, a family of four, included an eight-year-old boy named "Bobby.” Sharon Crusie’s younger daughter, Kim, was a playmate of Bobby’s and the boy was a frequent visitor at appellant’s home.

Appellant was charged in a four-count information with committing second and fourth degree sexual offenses, unnatural or perverted sexual practices, and assault and battery against Bobby on June 10, 1979. The factual and procedural details of the case against Mr. Polk, relevant to this appeal, have to be distilled from the pretrial hearing on Polk’s motion to suppress Bobby’s testimony, as well as the subsequent trial.

The Suppression Hearing

The State apparently disclosed to appellant’s counsel prior to trial that Bobby had been subjected to hypnosis by a State Trooper, Sergeant Lloyd E. White. Appellant thereupon moved to suppress the testimony of the boy and/or the Sergeant on the ground that such testimony was inadmissible as a matter of law.

Some two weeks before trial, a hearing on the motion was held in open court. The only witness was Sergeant White. The transcript of the hearing discloses that White was a criminal investigator with the Maryland State Police, Annapolis Barracks, and a veteran of 20 years’ service. He was the supervisor of the Mobile Crime Lab, a polygraph examiner, and had a college degree in psychology. He testified that he had trained for several months in the use of investigative hypnosis. This training consisted of attendance at a two-day seminar conducted by Dr. Daniel Stern, a clinical psychologist in Towson, Maryland, and the reading of three books on the subject of hypnotism. He had never qualified as an expert in hypnosis in any court.

According to the Sergeant, he was requested by Corporal Whitney of the Maryland State Police to engage in an hypnotic procedure with Bobby who was suffering an apparent "retrograde amnesia” pertaining to an incident which had occurred at appellant’s home. Word of the incident had, it seems, been communicated to Bobby’s mother by the mother of another little boy, a friend of Bobby’s, and Bobby’s mother then contacted the Maryland State Police. An hypnotic session took place at Sergeant White’s office on November 20, 1979, approximately five months after the alleged incident. This was the third such experience by the Sergeant with a subject.

In a discussion with Corporal Whitney and the boy’s mother prior to the session, Sergeant White was informed that the purpose of the hypnotic procedure was to determine whether Bobby could remember any sexual contact with appellant. There then ensued a "preliminary” interview with Bobby for 20 to 25 minutes, followed by an hypnotic session of some 25 to 30 minutes duration. The Assistant State’s Attorney in charge of the case was present, as was the boy’s mother. Defense counsel was not then in the case, no charges having been filed until December 27, 1979. The entire session was taped but Sergeant White testified that, through some inadvertence, the tape of the preliminary session had been erased.

At the suppression hearing, the remainder of the tape was played for the court. Near the beginning, the Sergeant called upon his subject to relax, and suggested that he recall an occasion when he was in a bedroom in appellant’s house, with Kim, Mrs. Crusie’s daughter. After the boy responded that appellant came into the bedroom and sent Kim on an errand, the tape continued:

"Q. All right, so, you go back in the room and what did Kenny [appellant] say to you?
A. He asked me questions about sports.
Q. Okay. Take another deep breath. Relax, relax, deep breath. I see you are yawning and that means that you are completely relaxed. And, that is good, Okay, relax. Deep relax, okay. Now, after Kenny asked you about the sports, I want you to tell me what is the next thing he said?
A. He didn’t say nothing else.
Q. Okay. Did he then walk over to you? Okay. Then what did he do?
A. He unzipped my fly.
Q. He unzipped your fly. And, did he take your penis out? All right. In your mind’s eye, I want you to relax and take a deep breath. Excellent, that’s good. Now, I want you to tell me the next thing he did? Completely relax.
A. He sucked my privates.
Q. Okay. And, after he finished sucking your privates, I want you to tell me what he said after that.
A. He said are we still friends.
Q. Are we still friends. And, what did you say?
A. Uh-uh.
Q. Now, after you said uh-uh — now, take another deep breath. That’s good. That’s good. Okay, after you said uh-uh what did he say?
A. He didn’t say nothing.
Q. What happened after he didn’t say anything — did you.just —
A. He opened the door and went out.
Q. Okay. Did he expose himself to you? Did he have his penis out?
A. What?
Q. Did he have his penis out?
A. Uh-uh.
Q. All right, okay. Were you afraid of Kenny? Why are you afraid?
A. Because of what he done.
Q. Are you still afraid of Kenny?
A. No, because he moved away.”

Appellant’s pretrial motion to suppress the testimony of the boy and/or the Sergeant contended that such testimony would be the product of "an inexact and unproven science” and was inadmissible as a matter of law. At the suppression hearing, defense counsel also argued that Sergeant White would not qualify as an expert in the field of hypnosis, that his questions to the boy were improperly suggestive and that there was an impermissible lapse of time — more than four months — between the date of the alleged incident and November 20, when the hypnotic session was conducted. The State argued that the testimony was admissible, and asserted that the question of its sufficiency "will be a matter for the court to deal with at the trial.”

In denying appellant’s motion to suppress, Judge Mattingly stated, in part:

"As I say, it goes to the weight of the testimony rather than the admissibility. I think, it is true, he has little experience and he has honestly stated that he has little experience, and very little formal education in this field. So, it is up to the jury and if they want to disregard and it is in their prerogative and it is not for the Court to throw it out.”

The Trial

At the trial, Sergeant White was not called. The State’s witnesses were, in the order presented, Bobby’s parents, his twelve-year-old sister, and Bobby himself. When Bobby was called, appellant objected on the ground that it would be improper for him to testify "until a foundation was first laid” by the testimony of the Sergeant. The court overruled the objection, stating:

"The Court has already ruled on the motion to suppress and I can’t tell the State how to try the case.”

Bobby’s testimony was substantially the same as his responses to Sergeant White at the hypnotic session. On cross-examination, for reasons not disclosed on the record — but presumably explainable as "trial tactics” — appellant’s counsel did not interrogate Bobby about the hypnotic procedure. Counsel came no closer to that subject than to elicit the boy’s affirmation that he had no recollection of the incident and "forgot the nasty part” until he spoke with "Mr. White.”

At the close of the State’s case, appellant moved for judgment of acquittal on the ground that the alleged victim’s testimony had been erroneously received. The motion was denied. The court again observed, "I don’t think it is proper for me to tell the State who to call.”

Appellant took the stand in his own defense and also presented the testimony of Sergeant White, Sharon Crusie, and three character witnesses. Oddly perhaps, the Sergeant was interrogated on a collateral point, unrelated to hypnosis. Mr. Polk’s trial counsel also intended to offer the testimony of a psychologist, a Doctor Gravitz, that hypnotically induced testimony is unreliable and that the procedure employed by Sergeant White was improper.

The State’s objection to any such testimony by Dr. Gravitz was sustained by Judge Mattingly on the ground that "there is no evidence whatsoever in this case of hypnosis.”

At the conclusion of all the evidence, appellant again moved for a judgment of acquittal, arguing that the hypnosis procedure had not been "fully exposed in the evidence.” Motions were also made by appellant to strike the boy’s testimony and for a mistrial. All motions were denied.

On this appeal, two principal contentions are advanced. The fírst is that the trial judge erred in admitting hypnotically induced testimony. In support of this proposition appellant contends (a) that hypnotically induced testimony is per se inadmissible, and (b) that in this case the alleged victim’s testimony was hypnotically induced by an unqualified police investigator. The second contention is that the court erred in excluding from the jury’s consideration evidence that Bobby’s testimony had been hypnotically induced. Specifically, appellant argues (a) that the State was improperly permitted, over objection, to call Bobby without "exposing in the evidence” that he had been placed under hypnosis, and (b) that appellant was thereafter improperly prevented from calling his own expert witness in the field of hypnosis. The ultimate result, appellant contends, was to deprive him of a fair trial.

II

Our opinion in Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968), cert. denied, 252 Md. 731, cert. denied, 395 U.S. 949, 89 S. Ct. 2030, 23 L. Ed. 2d 468 (1969), is the first reported decision concerning the admissibility of hypnotically induced testimony of a prosecuting witness. There, as disclosed in the opinion of the Court by Judge Thompson, the witness was hypnotized by a clinical psychologist in order to refresh her recollection of events which culminated in a brutal sexual attack. Her subsequent testimony at trial consisted of her recollection of those events in the normal waking state. The psychologist testified at length on behalf of the State with respect to hypnosis generally and its use against the appellant. There was no testimony for the defense concerning the reliability of hypnosis in refreshing a witness’ recollection. The only objection to the psychologist’s testimony related to his qualifications as an expert, primarily that he had not graduated from any school of hypnotism. We held that this objection was properly overruled. With respect to the admissibility of the testimony of the prosecuting witness, this Court concluded at 5 Md. App. 236, 246 A.2d at 306.

"The admissibility of Mildred Coley’s testimony ... causes no difficulty. On the witness stand she recited the facts and stated that she was doing so from her own recollection. The fact that she had told different stories or had achieved her present knowledge after being hypnotized concerns the question of the weight of the evidence which the trier of facts, in this case the jury, must decide.”

Harding set the trend for subsequent rulings in other cases dealing with hypnotically induced testimony, that pretrial hypnotism raises questions not of admissibility but of credibility and the weight of the evidence. E.g., United States v. Adams, 581 F.2d 193, 198 (9th Cir. 1978), cert. denied, 439 U.S. 1006, 99 S. Ct. 621 (1978); United States v. Narciso, 446 F. Supp. 252, 284 (E.D. Mich. 1977); Creamer v. State, 232 Ga. 136, 138, 205 S.E.2d 240, 242 (1974); People v. Smrekar, 68 Ill. App. 3d 379, 385 N.E.2d 848, 853 (1979); State v. Jorgensen, 8 Or. App. 1, 9, 492 P.2d 312, 315 (1971). But see Greenfield v. Commonwealth, 214 Va. 710, 204 S.E.2d 414 (1974). In some cases, the use of hypnotism was deemed analogous to the use of a document shown to a witness at trial to refresh his or her recollection. Kline v. Ford Motor Co., Inc., 523 F.2d 1067 (9th Cir. 1975); Wyller v. Fairchild Hiller Corp., 503 F.2d 506, 509 (9th Cir. 1974).

Ten years after our decision in Harding, however, the Court of Appeals of Maryland adopted for the first time the now familiar "general acceptance rule” enunciated in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Under the standard of Frye, the Court of Appeals held in Reed v. State, 283 Md. 374, 391 A.2d 364 (1978), in an opinion by Judge Eldridge, that "if a new scientific technique’s validity is in controversy in the relevant scientific community ... then expert testimony based upon its validity cannot be admitted into evidence.” Id. at 381, 391 A.2d at 368. Applying this rule in Reed, the Court held that testimony based on "voiceprints” or spectrographs is, for the present, inadmissible in this State.

Discussing the question of the reliability generally of scientific techniques, the Court in Reed stated:

"The question of the reliability of a scientific technique or process is unlike the question, for example, of the helpfulness of particular expert testimony to the trier of facts in a specific case. The answer to the question about the reliability of a scientific technique or process does not vary according to the circumstances of each case. It is therefore inappropriate to view this threshold question of reliability as a matter within each trial judge’s individual discretion. Instead, considerations of uniformity and consistency of decision-making require that a legal standard or test be articulated by which the reliability of a process may be established.” (Emphasis added.)

Continuing, the Court also stated:

"That is to say, before a scientific opinion will be received as evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular scientific field.”

Id. at 381, 391 A.2d at 367-68. It was also pointed out that although Frye was a case involving the result of a lie detector examination, the test itself "has been broadly applied, and judged the appropriate standard to apply to newly developed methods of scientific discovery,” citing a number of illustrations.

In Harding, we did not assess the Frye principle, the rule there enunciated not having been applied in this State until Reed; nor did we have occasion to probe the question — here directly raised on the authority of Reed — of the general acceptability of hypnotism as a reliable technique for memory retrieval within the relevant scientific community.''^ Two recent decisions of the highest Courts of Minnesota and Arizona have considered this issue, applying the Frye test. Accord, People v. Tait, 99 Mich. App. 19, 297 N.W.2d 853 (1980).

In State v. Mack, 292 N.W.2d 764 (Minn. 1980), the question of the admissibility of hypnotically induced testimony of a witness in a criminal case was certified by a trial court to the Supreme Court of Minnesota. Five experts testified in the proceedings before the trial court on the subject of hypnosis and memory retrieval. As the Supreme Court stated, "[t]he valuable testimony of these expert witnesses provides an extensive record upon which the legal issue before us may be decided.”

The Mack Court was urged by the defendant to apply the Frye rule and to exclude the hypnotically induced testimony of the witness on the ground that her "memory” of the alleged assault was not sufficiently reliable to merit admission. The State, on the other hand, argued that her testimony was admissible as a refreshed recollection and should be admitted "as long as certain safeguards can be established.” Holding the Frye rule applicable to hypnosis, the Court observed:

"Under the Frye rule, the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate. Although hypnotically-adduced ’memory’ is not strictly analogous to the results of mechanical testing, we are persuaded that the Frye rule is equally applicable in this context, where the best expert testimony indicates that no expert can determine whether memory retrieved by hypnosis, or any part of that memory, is truth, falsehood, or confabulation — a filling of gaps with fantasy. Such results are not scientifically reliable as accurate.” (Emphasis added.) Id., 292 N.W.2d at 768.

The Minnesota Court rejected the State’s argument that Frye is inapplicable where the proffered evidence does not consist of the results of a mechanical device, such as a polygraph. The Court’s ultimate conclusion was that whether hypnotically induced evidence "is offered by the defense or by the prosecution,” a witness whose memory has been "revived” under hypnosis "ordinarily must not be permitted to testify in a criminal proceeding to matters which he or she 'remembered’ under hypnosis.”

Similarly, the Supreme Court of Arizona applied the Frye principle in a very recent criminal appeal and adopted a blanket rule against the admission of testimony that has been refreshed by hypnosis. State v. Mena, 128 Ariz. 226, 624 P.2d 1274 (1981). Referring to the Frye principle, the Arizona Court stated in part:

"We have said in other cases that a scientiñc principle must have gained general acceptance in its fíeld in order to be accepted by a court as fact. We believe the same standard should apply to the use of hypnosis to produce testimony by purportedly improving memory.” (Emphasis added.)

Id. at , 624 P.2d at 1279.

Reed speaks, of course, of expert testimony based upon the use of a scientific technique. The technique of hypnosis is scientific, but the testimony itself of the witness is the end. product of the administration of the technique. The induced recall of the witness is dependent upon, and cannot be disassociated from, the underlying scientific method. Accordingly, we conclude, as did the Minnesota and Arizona Courts, that the Frye test must be applied in the instant case, i.e., before Bobby’s testimony can be admitted, there must be a determination of whether hypnosis is generally acceptable in the relevant scientific community for the purpose of memory retrieval.

The judgment of conviction of the appellant must therefore be reversed and the case remanded for a new trial. Upon remand, the trial court will be confronted with the necessity of making a determination of the general acceptability vel non of hypnosis. The reliability of the technique must be demonstrated before the testimony based upon it can be received. As the Court of Appeals stated in Reed:

"Although this demonstration will normally include testimony by witnesses, a court can and should also take notice of law journal articles, articles from reliable sources that appear in scientific journals, and other publications which bear on the degree of acceptance by recognized experts that a particular process has achieved.”

Id. at 380, 391 A.2d at 367. Specifically, should the court rule under the Frye principle that the hypnosis technique is not generally acceptable, Bobby’s testimony should not be received, since the boy had no recollection of the alleged incident giving rise to the charges against the appellant prior to the hypnosis. State v. Mena, supra.

On the other hand, if the court should determine that the requirement of general acceptability in the relevant scientific community is satisfied, it does not follow that the testimony of the alleged victim is for that reason alone admissible. In the case of scientific techniques it is recognized that "if the trial judge is not convinced that the examiner is qualified or that the test was conducted under proper conditions, he may refuse to accept such evidence.” State v. Valdez, 91 Ariz. 274, 371 P.2d 894, 900 (1962); State v. Steele, 27 N.C. App. 496, 219 S.E.2d 540, 544 (1975). There are factors bearing upon admissibility in this case which the trial judge should carefully consider: Was the hypnotist professionally qualified to administer hypnosis? If qualified, was he objective in the application of the technique or did he suggest, by leading questions or otherwise, the responses expected to be made by the subject? Was post-hypnotic suggestion employed? Careful concern for the "dangerous potential for abuse” of hypnosis requires that these factors be evaluated by the trial judge in the first instance, as a question of admissibility, rather than by the jury as a matter of the sufficiency of the evidence. United States v. Adams, 581 F.2d 193, 198-99 (9th Cir. 1978), cert. denied, 439 U.S. 1006 (1978).

Finally, if the use of the technique in the individual case should pass muster and the hypnotically induced testimony be ruled admissible, we think that the fact of the use of hypnosis should be "fully exposed in the evidence,” as was done in Harding. Indeed, we have found no reported case where such testimony was admitted and the use of hypnosis was not also revealed to the trier of fact. E.g. People v. Smrekar, 68 Ill. App. 3d 379, 385 N.E.2d 848, 855 (1979) ("We rule that the [hypnotically induced testimony] ... is not rendered inadmissible by her hypnosis ... where [inter alia] (1) the hypnotist was shown to be competent, (2) the evidence indicated that suggestion was not used in the hypnosis....”); State v. McQueen, 295 N.C. 96, 119, 244 S.E.2d 414, 427 (1978) ("the jury was fully advised that the witness had been so hypnotized”); Creamer v. State, 232 Ga. 136, 138, 205 S.E.2d 240, 242 (1974) ("[t]he fact that [the witness] had been placed under hypnosis by [the psychologist] and the purpose therefor were made clear to the jury).”

We have noted the reluctance of the trial judge, expressed more than once, "to tell the State who to call.” In our view, however, it is the duty of the trial judge to require that a jury be informed that the testimony of a witness — whether for the State or for the defense — has been hypnotically induced.

Judgment reversed; case remanded for a new trial; costs not to be reallocated.

Md. Rule 1082f.

      . This issue was addressed by the Court in 1968 in the now leading case of Harding v. State, 5 Md. App. 230, 246 A.2d 302 (1968), cert. denied, 252 Md. 731, cert. denied, 395 U.S. 949, 89 S. Ct. 2030, 23 L. Ed. 2d 468 (1969), where we held the testimony admissible and, under the facts presented, sufficient to support a jury verdict of guilt of attempted rape where:
      "(1) the hypnosis procedure was fully exposed in the evidence; (2) the man who induced the hypnosis was a professional psychologist and gave his opinion that there was no reason to doubt the truth of the witness’ statement; (3) there was sufficient corroboration of the witness’ testimony: (a) male sperm was found in the victim’s vagina, (b) the accused was one of two males shown to have known where the victim could have been found when the crime was committed, (c) the accused was seen in a station wagon immediately prior to the time the crime was committed. In addition, a precautionary instruction was given.” Id. at 247, 246 A.2d at 312.

        See also State v. Temoney, 45 Md. App. 569, 414 A.2d 240 (1980).

      . The original information, amended prior to trial, alleged that the offenses occurred on August 1, 1979.

      . The motion to suppress was also directed against testimony of Sergeant Lloyd E. White, infra, who placed Bobby under hypnosis.

      . Sergeant White testified that he consulted with Dr. Stern prior to the session and had been coached by him.

      . Appellant’s trial counsel elicited from Sergeant White that he had learned about Kim during the erased pre-test with Bobby.

      . At the conclusion of the tape, Sergeant White was asked by defense counsel at what point in time the child was hypnotized. He responded, "I would say initially when I started with the eye closure.” He also testified that the boy’s nodding of his head "meant that he was definitely under hypnosis.” Under further questioning, however, he said that he "really [did not] know if this young man was under hypnosis or not.” On this appeal, both sides have proceeded on the premise that Bobby was, in fact, hypnotized.

      . On appeal, the State observes in its brief that, "[a]t trial the State chose not to introduce the fact that the victim’s memory was previously refreshed by a prior hypnotic session....”

      . The testimony of the other State’s witnesses pertained to nightmares suffered by the boy after the incident and changed personal behavior on the day it was alleged to have occurred, and thereafter.

      . The court again said, "I don’t know any rule where the court can force the State’s Attorney to call a certain witness.”

      . In Adams the court expressed its concern that investigatory use of hypnosis on persons who might later be called upon to testify, carries "a dangerous potential for abuse.” To insure that statements after hypnotism are the product of the subject’s recollections rather than recall tainted by suggestion, it was recommended that there be "complete stenographic records of interviews of hypnotized persons” and that "audio or video” recordings of the interviews would be helpful. 581 F.2d at 199, n. 12.

      . In Smrekar the court ruled that the testimony of an eyewitness was not rendered inadmissible by her hypnosis prior to making a pretrial identification of the defendant and prior to testimony at trial where (a) the hypnotist was shown to be competent, (b) the evidence disclosed that suggestion was not used in the hypnotic procedure, (c) the identification was corroborated by other evidence, and (d) the evidence showed that the witness had ample opportunity to view him. Some confusion is thus apparent between the issue of admissibility and that of sufficiency.

      . In Frye, it was held that the results of a "deception test,” and early version of today’s polygraph, were inadmissible.

      . In Reed the Court of Appeals divided four to three. In a vigorous dissenting opinion, Judge Smith stated that the Frye test "has never been adopted in Maryland and I am opposed to its adoption.”

      . In State v. Temoney, supra, the question of Frye’s applicability was raised but was there limited to expert testimony based upon hypnosis. The Harding rule was otherwise reaffirmed.

      . The Court also pointed out that examination of the testimony of the expert witnesses underscored the truth of an observation made by one of their members: "... a case by case decision on the admissibility question would be prohibitively expensive, and reveals the difficulty of getting experts qualified to testify about hypnosis as an investigative rather than a therapeutic tool.”

      . The Court in Mena does not appear to have based its ruling upon expert testimony, as in Mack, but upon its own consideration of scientific and other publications on the subject, including particularly a challenging presentation of the thesis that the entire recollection of the witness after hypnosis is unreliable and the procedure renders the witness imcompetent to testify. Diamond, Pretrial Hypnosis on a Prospective Witness, 68 Calif. L. Rev. 313-49 (1980). The author is a Professor of Law, University of California, Berkeley, and Clinical Professor of Psychiatry, University of California, San Francisco.


author: Gilbert, C. J.,

text:
    CHARLES CALVIN SOLES v. STATE OF MARYLAND
    [No. 814,
    September Term, 1980.]

      Decided April 9, 1981.

    The cause was submitted on briefs to Gilbert, C. J., and Morton and Moylan, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Michael R. Braudes, Assistant Public Defender, for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Michael A. Anselmi, Assistant Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and William T. Shockley, Assistant State’s Attorney for Prince George’s County, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The question posed by this appeal is whether United States v. Chadwick, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538 (1977) should be retroactively applied to a 1971 criminal conviction. If Chadwick is so applied, the appellant, Charles Calvin Soles, will receive a new trial, and some evidence will be excluded. On the other hand, if Chadwick is not interpreted to be retroactive, no new trial will be forthcoming.

We observe that in Soles v. State, 16 Md. App. 656, 299 A.2d 502, cert. denied, 415 U.S. 950 (1973), we affirmed the conviction of Soles for having violated the Controlled Dangerous Substances Laws of this State and for attempted bribery. The facts of that case are fully set out in our reported opinion, and we see no reason why we should retravel that route. Instead, we shall only refer to the facts necessary to explain the appellant’s contention in this appeal.

A warrantless stop and search of appellant’s motor vehicle was made by Washington D.C. Metropolitan Police "moments after it had crossed the Maryland line into Prince George’s County.” The arresting officer demanded that Soles "produce the keys to the trunk” of the car. Upon opening the lid, the officer "discovered a dark-colored briefcase. It was locked. After the appellant failed to produce a key for the briefcase, the police snapped it open. Much of the incriminating evidence was found inside the briefcase. The rest had been found inside the locked trunk.”

We are here concerned with the content of the briefcase rather than of the trunk.

Soles argues that Chadwick has retroactive application, and that as a result of applying it to him, the search of his briefcase was an unconstitutional invasion of his Fourth Amendment rights. To underpin his position, Soles cites us to Shingleton v. State, 39 Md. App. 527, 539, 387 A.2d 1134, 1141 (1978) where we said, in note 6:

"Although Chadwick was handed down subsequent to the trial of the case sub judice, we believe its decision, reaffirming established standards of search and seizure, may be viewed retroactively in accordance with the considerations set forth in Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1203 (1967):
'The criteria guiding resolution of the question implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.’
See Rassmussen v. State, 18 Md. App. 443, 448-50, 306 A.2d 577, 580 (1973); Scott v. State, 7 Md. App. 505, 516-18, 256 A.2d 384, 391-92 (1969).”

Shingleton does not stand for the proposition that Chadwick must be viewed retroactively in all events. Our dictum in note 6 is no part of the holding. We were merely endeavoring to explain why we were applying Chadwick to Shingleton, even though Chadwick had not been decided at the time of the trial of Shingleton in the circuit court. We wanted to make clear that cases pending on appeal were controlled by Chadwick, inasmuch as there was no final judgment in any pending case. United States v. Peltier, 422 U.S. 531, 535, n. 5, 95 S. Ct. 2313, 2316, 45 L. Ed. 2d 374, 380 (1975).

There was no penalty for violation of the rights protected by the Fourth Amendment until the exclusionary rule was fashioned as an effective method of enforcing the Fourth Amendment guarantees. The rule is used as a sanction against the police whenever they unconstitutionally seize physical evidence. The exclusion of evidence is for the express purpose of deterring illegal police searches and seizures. Stone v. Powell, 428 U.S. 465, 96 S. Ct. 3037, 49 L. Ed. 2d 1067 (1976); Johnson v. State, 282 Md. 314, 384 A.2d 709 (1978); Duncan v. State, 34 Md. App. 267, 366 A.2d 1058 (1976) , aff'd, 281 Md. 247, 378 A.2d 1108 (1977); United States v. Harper, 419 F. Supp. 951 (D.C. Md. 1976). The philosophy behind the rule is deterrent, not remedial. Id. Thus, when, as here, the police perform what is generally believed to be a valid search, but an appellate court, in a subsequent holding in another case, invalidates the type of search used, the invalidation does not require retroapplication to any case that has been finally adjudicated. Put another way, the exclusionary rule will not be applied retrospectively to any case that has been finally adjudicated — i.e., affirmed on appeal and no certiorari pending, or no timely appeal was taken in the first instance.

Unquestionably, the law in this State, prior to Chadwick-Shingleton, appeared to allow the police to do exactly what they did in the instant case-. See Soles v. State, supra, and Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1925). In Soles, which was decided prior to Chadwick, we believed the briefcase found in the car to be part and parcel of the car, and items subject to search under the motor vehicle exception. The police in the instant case had a right to rely upon the pre-Chadwick standard.

No useful purpose will be served by applying a retroactive effect to Chadwick. In fact, such an application might wreak havoc with the administration of justice. We decline to construe Chadwick as applying to any case in which final judgment had been rendered prior to the time the Supreme Court decided that matter.

As we see it, Judge Femia correctly denied the appellant’s application for post conviction relief.

Order affirmed.

Costs to be paid by appellant.

      . The post conviction proceeding did not contest the conviction for attempted bribery.

      . Certiorari was granted in April 1973, 268 Md. 753 (1973), but subsequently dismissed on October 12, 1973 "as improvidently granted.”