text:
    BARBARA ADAMS BERNHARDT v. LUTHERAN SOCIAL SERVICES OF THE NATIONAL CAPITAL AREA, INC. et al.
    [No. 915,
    September Term, 1977.]

      Decided May 11, 1978.

    The cause was argued before Moylan, Moore and MacDaniel, JJ.

      Frank M. Kratovil, with whom was Lois C. Rose on the brief, for appellant.

      Robert L. Pillóte for appellees.
   Moore, J.,

delivered the opinion of the Court.

This appeal arises from an Order of the Circuit Court for Montgomery County (Fairbanks, J.) denying a petition for the adoption of a biracial, Black-Chicano, illegitimate female infant, born on September 10, 1975 in Dallas, Texas. The parent-child relationship between the natural mother and the unknown father and the child was judicially terminated by decree of the Juvenile Court of Dallas County, Texas on February 6,1976. The petitioner, appellant here, is a 41-year old, divorced woman, the biological parent of one child, age 6, and adoptive parent of another child, age 5, both of whom are in her custody. The infant who is the subject of these proceedings has been in the custody of the petitioner since March 11,1976, when she was approximately six months old, pursuant to a “Placement Agreement” with the Dallas County Child Welfare Unit of the State Department of Public Welfare and Lutheran Social Services of the National Capital Area, Inc., a licensed child-placing agency in the District of Columbia, intervenors herein.

The fundamental issue in the case was succinctly phrased by the chancellor who stated in the course of a comprehensive written opinion:

“Respondent Dallas County Child Welfare Unit, pursuant to the Texas court decree of July 1976, has full parental rights and control over Deborah. The consent of that agency to the adoption is requisite and no adoption can be decreed without such consent unless the Court should find that the consent is being withheld contrary to the best interests of the child. (Article 16, Section 74, Annotated Code of Maryland, 1957 Ed., 1973 Repl. Vol.). As the record discloses, respondent Dallas County has declined to consent to this adoption. Based on all of the testimony and other evidence in this case, the Court finds that respondent Dallas County Child Welfare Unit’s refusal to consent has been properly withheld and is not contrary to the best interests of the child.”

It is appellant’s position that the lower court was clearly erroneous in “certain factual findings,” that it “committed several errors as a matter of law,” and that its decision “showed a clear abuse of discretion in several instances.” We find these contentions without merit and shall affirm.

I

The “Decree of Termination” in proceedings relating to “Baby Girl, born September 10, 1975,” before the Juvenile Court of Dallas County, Texas, appointed the Director of the Dallas County Child Welfare Unit as “managing conservator” of the child, with the following “rights, privileges, duties and powers”:

“(1) the right to have physical possession of the child and to establish its legal domicile;

“(2) the duty of care, control, protection, moral and religious training, and reasonable discipline of the child;

“(3) the duty to provide the child with clothing, food, shelter, and education;

“(4) the power to consent to marriage, to enlistment in the armed forces of the United States, and to medical, psychiatric and surgical treatment; .

“(5) the power to represent the child in legal action and to make other decisions of substantial legal significance concerning the child;

“(6) the power to receive and give receipt for periodic payments for the support of the child and to hold or disburse these funds for the benefit of the child; and

“(7) the power to consent to the adoption of the child and to make any other decision concerning the child that a parent could make" (Emphasis added.)

Appellant, Barbara Adams Bernhardt, and her then husband, Norman Bernhardt, had made application in January 1973 with Lutheran Social Services of the National Capital Area for the placement of a child for adoption. They had been married in Belgrade, Yugoslavia on July 17, 1971 and had one child, David, born on January 15, 1972. As a result of the 1973 application, they received from Lutheran Social Services a black child, Daniel, who was born on May 23, 1973, and whom they adopted.

Mr. and Mrs. Bernhardt again made application to Lutheran Social Services on May 28,1974. The infant, “Baby Girl,” then six months old, was placed with them on March 11, 1976, and named Deborah Annette by them. The Placement Agreement was executed by Barbara and Norman Bernhardt, and extended not only to Lutheran Social Services as placement agent, but also to Dallas County Child Welfare as conservator. Under the Agreement, the Bernhardts assumed “complete financial responsibility for the child’s care with the intention of adoption.” They also agreed not to “begin court proceedings for the adoption without the approval of Dallas County Child Welfare and Lutheran Social Services.” It was expressly stipulated that such approval would not be forthcoming sooner than six months after placement and that “the agency has the right to remove the child at any time prior to adoption should the agency consider it to be in the child’s best interests.”

A social worker at Lutheran Social Services (and an appellee herein), Anita Greenberg, made a visit to the Bernhardt home in Takoma Park on May 11,1976 and found conditions satisfactory and the custodial care of Deborah proper. A month and one-half later, however, Miss Greenberg learned, in an interview with Norman Bernhardt, arranged at his request, that the couple had been having marital difficulties for a significant period of time and had, in fact, been separated for a number of months. His visit to Miss Greenberg had been recommended by Monica Friedman, a marriage counselor in the TESS Neighborhood Service Center in Silver Spring, whom the Bernhardts had consulted. Subsequently, on July 9,1976, Miss Greenberg called in Mrs. Bernhardt for an interview and thereafter reopened her investigation of the background of the Bernhardts and their suitability as adopting parents for Deborah. The Dallas County Child Welfare Unit was informed of her action.

In late October 1976, Miss Greenberg sent a second report to Dallas, with the recommendation that Deborah be removed from the Bernhardt home. On November 21, 1976, the Program Director of the Dallas County Child Welfare Unit executed, under oath, a formal designation of Lutheran Social Services as agent to act “In the Interest of Deborah Annette Bernhardt, A Child.” In it, the “immediate removal” of the child from the Bernhardt home was requested “in the best interest of the child and for the welfare of the child.” It was also stated: “The Dallas County Child Welfare Unit has no intentions whatsoever to consent to the Adoption of this child by the Bernhardt family.”

On December 2, 1976, the Bernhardts were summoned to Lutheran’s office in Washington and informed of the decision to remove Deborah from them. When the child was not returned in the time specified, the Dallas County Child Welfare Unit and Lutheran Social Services filed, on December 6, 1976, a petition against Barbara and Norman Bernhardt, seeking custody of Deborah and other relief. On the same day, Barbara Bernhardt alone retaliated by filing a petition against the Dallas County unit and Lutheran Social Services, seeking custody of Deborah and a separate petition for the adoption of Deborah. An ex parte order was then issued, enjoining the agencies from removing the child from the jurisdiction of the court.

The two custody actions were consolidated but hearings thereon were postponed pending the outcome of Mrs. Bernhardt’s petition for adoption. At two days of hearings in the adoption case, appellant presented nine lay witnesses and four expert witnesses, all of whom testified that Deborah’s best interests would be served by the adoption. The respondents offered the testimony of the social worker employed by Dallas County Child Welfare who had arranged the placement and had transported the infant from Texas, as well as that of the marriage counselor, Monica Friedman, and Miss Greenberg.

As previously stated, Judge Fairbanks denied the petition but, upon motion for stay of execution, he ordered that Deborah be permitted to remain in Mrs. Bernhardt’s custody pending this appeal.

II

It is essential that this case be kept in true perspective, and that careful attention be directed to the precise issue before the chancellor.

This is not simply a custody suit nor is it a contested adoption proceeding between adoptive and natural parents. Rather, it is a contested petition for adoption by an unmarried individual with whom a contractual placement has been made, and the respondents (opponents) include the “managing conservator” with the power, legislatively mandated and judicially decreed, to consent to the adoption of the child, and the social service agency charged with local supervision of the placement. Furthermore, this case must be viewed against the backdrop of the Interstate Compact on the Placement of Children, Md. Ann. Code, Art. 16 § 208 et seq. (1957, 1973 Repl. Vol., 1977 Cum. Supp.), the purpose and policy of which are specifically declared in these words in § 209:

“It is the purpose and policy of the party states to cooperate with each other in the interstate placement of children to the end that:
(a) Each child requiring placement shall receive the maximum opportunity to be placed in a suitable environment and with persons or institutions having appropriate qualifications and facilities to provide a necessary and desirable degree and type of care.
(b) The appropriate authorities»! a state where a child is to be placed may have full opportunity to ascertain the circumstances of the proposed placement, thereby promoting full compliance with applicable requirements for the protection of the child.
(c) The proper authorities of the state from which the placement is made may obtain the most complete information on the basis of which to evaluate a projected placement before it is made.
(d) Appropriate jurisdictional arrangements for the care of children will be promoted.”

It must also be recognized that the issue presented is not whether Mrs. Bernhardt is a fit and proper custodian of Deborah. More precisely, it is whether, in light of the requirements of Md. Ann. Code, Art. 16 § 74 (1957, 1973 Repl. Vol.) and Md. Rule D73, the required consent to the adoption by the Dallas County Child Welfare Unit was “withheld contrary to the best interests of the child.” See Brendoff v. Titus, 22 Md. App. 412, 323 A. 2d 612 (1974).

Finally, it must be noted that the scope of our review of the trial court’s determination of this central question is limited to whether the trial judge abused his discretion or whether his findings of fact were clearly erroneous. Davis v. Davis, 280 Md. 119, 372 A. 2d 231 (1977); Ross v. Hoffman, 280 Md. 172, 372 A. 2d 582 (1977); Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406, 418, 381 A. 2d 1154, 1162 (1978). The rule of the cited cases, applied therein to custody proceedings, is equally applicable to adoption cases. See, e.g., Nutwell v. Prince George's County Department of Social Services, 21 Md. App. 100, 107, 318 A. 2d 563, 567 (1974). The observations in Sanders are also apposite:

“The chancellor’s findings of fact are to be given great weight since he has the parties before him and has ‘the best opportunity to observe their temper, temperament and demeanor, and so decide what would be for the child’s best interest....’ There can be very little constructive or useful precedent on the subject of custody determinations, because each case must depend upon its unique fact pattern---This Court may not set aside the factual findings of the chancellor unless they are clearly erroneous,... and absent a clear showing of abuse of discretion, the decision of the trial judge in a custody case will not be reversed.” 38 Md. App. at 418-19, 381 A. 2d at 1162. (Citations omitted.)

These guiding principles are to be applied to the instant case in the context of a record of documentary and testimonial evidence which reveals, inter alia, that:

1) Although the appellant and her husband had jointly applied for placement, they had been separated for at least five months when the placement was actually made.

2) Neither the out-of-state nor the local agency was apprised of the marital difficulties between the Bernhardts by the appellant. On the contrary, there is evidence that she suppressed this information. Although the parties were separated at the time of a home visit following the placement, appellant told the social worker that Mr. Bernhardt was absent from the home because of his employment.

3) In the 1973 and 1974 applications for child placement to Lutheran Social Services, appellant represented that she had not been previously married. In fact, she had been twice married (for 1 year and 6 years, respectively) and twice divorced. In each instance, the divorce had been granted to her then spouse on grounds of appellant’s desertion. Under questioning by the court, appellant affirmed that the application form required disclosure of prior marriages and testified: “I answered it falsely.”

4) Sharp discrepancies existed in the records and testimony with respect to appellant’s financial circumstances. Her applications to the agency in Washington represented that her husband’s income was $8,000 per year. Tax returns for 1973 and 1974, however, disclosed taxable income of $3,255.92 and $1,994.15, respectively. Appellant’s financial statement in her divorce action against Mr. Bernhardt showed a total net income of $18 per month but, in the proceedings below, appellant testified to income in excess of $1200, including compensation for babysitting in the sum of $420 per month, and ultimately stated that her income and that of her husband “ha[d] always been a big confused mess.”

Relevant evidence was also produced below in the form of recommendations from the Dallas County Child Welfare Unit and the Lutheran Social Services organization that the child not remain in Mrs. Bernhardt’s custody. The representative of the Texas agency in his testimony below stated that he was the social worker who was in consultation with the child’s biological mother, and that she desired the child to have a home with both a mother and a father; and that with regard to this child, he would not approve a single parent placement. The “withholding and calculated falsifying” of information was also a primary concern ,of Dallas County. The agency perceived in appellant’s conduct a disposition to use “deceptive methods to gain whatever goals there may be,” and concluded that “to bring a child into a family that is dissolving... and put further stress on that family and stress on the child” would be improper.

The recommendation to the Texas agency by Lutheran Social Services that the child be withdrawn was based upon “repeated instances of deceit in contacts between the Bernhardts and the agency----” It was felt that such behavior “implied unconcern for the children in the agency care and therefore for this child ... [whom] they had taken into their home for the purpose of adoption.” The witness, Miss Greenberg, told the chancellor that this attitude indicated “a level of morality not conducive to responsible parenting.”

The marriage consultant seen by appellant and her husband further disclosed that there had been both “resentment and hostility” in the marriage of the Bernhardts for a long period of time and, as stated in a report to the court below from Lutheran Social Services, “[s]he described Mrs. Bernhardt as being extraordinarily manipulative and amoral----” The marriage counselor cautioned the placement agency not to believe what Mrs. Bernhardt would relate about the family situation because she felt appellant “would do whatever she could to keep the child, Deborah.”

In the chancellor's careful analysis of the evidence he concluded that the best interests of the child would be served by “denial of the adoption petition and the removal of the child from the home for placement in a better and healthier environment.” On the basis of our review of the record, we cannot conclude that the chancellor’s findings of fact were “clearly erroneous” or, indeed, that they were erroneous at all. Furthermore, we find no basis for appellant’s contention that the chancellor committed any abuse of discretion in his resolution of the ultimate question, namely, whether the agency’s consent was withheld contrary to the best interests of the child.

Additional support for the chancellor’s conclusion may be found in appellant’s dishonoring the placement agreement, which she and her husband executed at the time the child, Deborah, was delivered to them. She expressly covenanted therein not to begin court proceedings for the adoption of the child without the prior approval of both agencies and affirmed her understanding that the agencies had the right to remove the child at any time prior to adoption should that be considered in the child’s best interests.

The chancellor’s conclusion is also buttressed by the fact that the placement of Deborah was made pursuant to the Interstate Compact on the Placement of Children, legislatively enacted by both Texas and Maryland. See Md. Ann. Code, Art. 16 § 208 et seq. (1957, 1973 Repl. Vol., 1977 Cum. Supp.) and Tex. Rev. Civ. Stat. Ann. art. 695a-2 (Vernon, 1978 Supp.). Citizens of Maryland are, in our judgment, bound by the declared policy of the Compact and its provisions. No less is it an obligation of the courts of this jurisdiction to require that the provisions of the Compact be enforced and that the continuing jurisdiction of the “sending agency” be recognized, Md. Ann. Code, Art. 16 § 212A (a), supra, to the end that cooperation in the interstate placement of children may be achieved.

We are aware, as was the chancellor, of the “distress” to appellant and her young sons that may result from the court’s action. Appellant is not, however, without fault, and although she may now, in the light of elapsed time and her care of Deborah, be the child’s “psychological parent,” as the chancellor also recognized, we held subsequent to the proceedings below that this factor is not determinative. Montgomery County Department of Social Services v. Sanders, supra.

The finding of the lower court that the consent of the Dallas County Child Welfare Unit to Deborah’s adoption by appellant was properly withheld is amply supported by the record.

Decree affirmed; appellant to pay the costs.

      . The Bernhardts and their natural child are Caucasian.

      . As indicated infra, the Bernhardts had been experiencing marital difficulties and, at the time of placement, were separated. They have since been divorced.

      . The Bernhardts were then in matrimonial litigation, Barbara having filed suit for a divorce a mensa on July 23, 1976 on grounds of desertion. This was the subject of a supplemental bill for a vinculo relief, filed on December 30, 1976.

      . This Compact is entered into by Maryland with all States legally joining in the Compact substantially in the form outlined in § 208. It applies between Texas and Maryland. See Tex. Rev. Civ. Stat. Ann. art. 695a-2 (Vernon, 1978 Supp.).
      It is to be noted that § 212A of the Compact provides that the “sending agency” (here, the Dallas County Child Welfare Unit) shall “retain jurisdiction over the child sufficient to determine all matters in relation to the custody, supervision, care, treatment and disposition of the child which it would have had if the child had remained in tne sending agency’s state, until the child is adopted____Such jurisdiction shall also include the power to effect or cause the return of the child or its transfer to another location and custody pursuant to law.”

      . Under Art. 16 § 74 (g) and Md. Rule D73, a written statement of consent by the Dallas County Child Welfare Unit was required; this was not submitted. Under the prefatory language of § 74 and the Rule, however, the court had authority to grant the petition if, after a hearing, it found such consent was withheld contrary to the best interests of the child.

      . At the time of oral argument on this appeal, Mrs. Bernhardt had obtained a final decree of divorce a vinculo. Her former husband did not testify in the proceedings below.

      . To this statement, the court responded: “That does not give me a whole lot of confidence in how you are going to conduct your affairs in the future.” In the chancellor’s written opinion, ne concluded: “Either the Bernhardts have been less than candid in disclosing their true financial picture or they 'are badly overextended.”

      . J. Goldstein, A. Freud, A. Solnit, Beyond the Best Interests of the Child (1973).


source: Caselaw Access Project

author: Gilbert, C. J.,

license: Public Domain

text:
    IAN R. ANDERSON et al. v. ASSOCIATED PROFESSORS OF LOYOLA COLLEGE IN THE CITY OF BALTIMORE
    [No. 981,
    September Term, 1977.]

      Decided May 11, 1978.

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

      Donald N. Rothman and Nancy E. Paige, with whom were Gordon, Feinblatt, Rothman, Hoffberger & Hollander, Benjamin L. Brown, City Solicitor of Baltimore City, and John N Speetor, Assistant City Solicitor, on the brief, for appellants.

      Thomas N Biddison, Jr., with whom were Gallagher, Erelius & Jones on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

According to Jim Oigan, “Zoning is that branch of the law wherein everybody is an expert on ‘the best use’ of the other fellow’s property.” Zoning first appeared in this country around the turn of the century and was an obvious attempt to bring order to chaotic urban sprawl. Euclid v. Ambler Realty Co., 272 U. S. 365, 386-87, 47 S. Ct. 114, 117-18, 71 L. Ed. 303, 310 (1926). History will have to decide just how well we succeeded in our endeavor.

The case now before us commenced with the crossing of words by the Associated Professors of Loyola College in the City of Baltimore (Loyola) and a number of neighbors affected by Loyola’s attempt to expand. The expansion took the form of acquiring two (2) residences located on Millbrook Road, immediately across the street from the college campus proper. Loyola moved its president into 4601 Millbrook Road. The house is used as a residence and office of the president. 4603 Millbrook Road has become administrative offices, with adjacent parking. Understandably upset over what appellants believe to be an unlawful intrusion into the R-l (Single-Family Residence District) neighborhood with a deleterious effect on property values, some residents registered their protest to the Board of Municipal and Zoning Appeals (Board). The hearing involving the president’s residence-office was on March 30,1976. The matter of the administrative offices was heard by the Board on January 25, 1977. In baseball terms, Loyola and the protestants “split the series.” Loyola won as to the president’s residence-office, but the protestants carried the day on the administrative offices. Neither side was happy with half a loaf, and both appealed to the Baltimore City Court. Once there, the cases were consolidated and heard. Loyola won the “doubleheader.” The City Court decided both appeals in Loyola’s favor, thereby affirming the Board with respect to 4601 Millbrook Road, the president’s house-office, and reversing the Board as to 4603 Millbrook Road, the administrative offices.

The protestants now urge us to reverse the City Court in both matters, thus restoring the properties to use as residences only. Appellants challenge the rulings of the trial court with a three-pronged assault. We, however, view the jugular of the case to be whether the use to which 4601 and 4603 Millbrook Road are being put by Loyola is within the scope of the uses permitted in an R-l District.

The Zoning Ordinance of Baltimore City, signed into law by then Mayor Thomas A. D’Alesandro, III, on April 20,1971, provides in pertinent part:

“4.1 R-l SINGLE-FAMILY RESIDENCE DISTRICT

4.1-1 Use Regulations

a. Permitted Uses

1. Single-family detached dwellings

3. Non-profit or publicly owned educational and cultural institutions, as follows:

(a) Elementary schools

(b) Junior and senior high schools

(c) Junior colleges, colleges and universities — but not including business colleges or trade schools.

(d) Libraries and art galleries.

(e) Museums, aquariums, and planetariums.”

(Emphasis supplied.)

Off-street parking is a permitted conditional use only when authorized by ordinance of the Mayor and City Council. The Zoning Ordinance of Baltimore City, Ord. § 4.1-ld3 (1971) provides in pertinent part:

“d. Notwithstanding other provisions of this ordinance, the following uses as conditional uses shall require authorization by ordinance of the Mayor and City Council subject to the requirements and provisions of Section 11.0-6d:
3. Open off-street parking areas, other than accessory, for the parking of four or more automobiles — provided, no charge or fee, shall be made for such parking.”

Section 4.1-la3 makes crystaline that colleges, such as Loyola, are permitted within an R-l District. What is not so clear is what is meant by “colleges”? Does the term mean the campus upon which the educational facilities themselves are located, or does it have some broader meaning? Appellants argue that “the Baltimore City Court erroneously held that since the properties are owned by Loyola ... and used in connection with the operation of the college, the office use should be permitted because ... colleges ... are permitted.” Appellants contend that the acceptance of the City Court’s reasoning could “virtually eliminate zoning restraints on the use of residential property owned by educational institutions.” That result, appellants maintain, violates the principle that “the zoning ordinance is concerned with the use of property and not with ownership thereof nor with the purposes of the owners or occupants.” Mayor and City Council v. Poe, 224 Md. 428, 433, 168 A. 2d 193, 195 (1961); Boulevard Scrap Co. v. Mayor and City Council, 213 Md. 6, 10, 130 A. 2d 743, 745 (1957). The argument advanced by appellants overlooks that it is the use by Loyola, not the ownership, of the property that the City Court authorized. Indeed, the ordinance does not require that a college own the property in order to use it for educational purposes. Nothing prohibits a college from renting the premises upon which the facility is operated. Poe and Boulevard Scrap would be applicable if the factual pattern of the case were reversed and Loyola, as the owner of the property, rented it to another for a use not sanctioned in an R-l District. Under those circumstances, the ownership would be of no import as we would look to the use.

The ordinance does not mandate that the physical properties of a school, college, or university be located upon contiguous lands. The omission of such a restriction seems to us to indicate the City Council’s recognition of the impracticality of that limitation. It would, e.g., create chaos as to the University of Maryland, Baltimore City, where the various educational buildings, while in proximity to one another, are for the most part separated by thoroughfares. The same is true of the University of Baltimore. That school’s property is spread over a greater distance than that of the University of Maryland, Baltimore City.

A college is more than its classrooms, laboratories, and study halls. It is an undertaking that involves, in today’s world, athletic fields, gymnasiums, libraries, faculty and student lounges, school newspaper offices, administrative offices, chapels, and ofttimes faculty residences. A residence for the president of the institution is not unusual.

We have examined a number of authorities, but we have found no case directly on point. In Yancey v. Heafner, 268 N. C. 263, 150 S.E.2d 440 (1966), however, the Supreme Court of North Carolina held that the erection of a concrete, 4,000 seat, lighted athletic field was permitted in a single-family residential zone in which schools and colleges were allowed. The court reasoned that, the day of the “ ‘little red school house’ is a thing of the past.” Id. at 264, 150 S.E.2d at 442.

The Supreme Court of Nebraska, in Doane College v. County of Saline, 173 Neb. 8, 112 N.W.2d 248 (1961), upheld a lower court’s finding that the college president’s residence, “located immediately across the street from the campus,” Id. at 11, 112 N.W.2d at 250, and “overlookpng] the campus,” Id., was a part of the college and not taxable. In Doane, as in the instant case, the living quarters were supplied to the president as his residence. He entertained there and used the house for the reception of new faculty members, visitors, trustees and their families. It was also used for meetings and conferences. The court said that, “[t]he primary or dominant use of this property is for educational purposes____” Id. at 12, 112 N.W.2d at 250. A similar holding is found in Kansas Wesleyan Univ. v. Board of Comm’rs of the County of Saline, 120 Kan. 496, 243 P. 1055 (1926).

While Doane dealt with the taxability, vel non, of the president’s off-campus residence, the rationale is persuasive. We think it unmistakable that the primary purpose of 4601 Millbrook Road is educational, a definite part of the college program, and a proper use in an R-l District. See Western Theological Seminary v. City of Evanston, 325 Ill. 511, 156 N. E. 778 (1927).

Administrative offices are also an essential part of the educational process. Without them, it is doubtful that a college could long exist. We believe that the use by Loyola of 4603 Millbrook Road as administrative offices for the college is in keeping with the zoning ordinance.

The "primary or dominant use” of the Millbrook Road properties by Loyola is for education purposes. As such, they are indubitably permitted uses in an R-l District.

“[A]n ordinance which provides for the construction of a school [or college] in a residence zone would encompass the right to erect;[or convert] buildings, equipment and the plant which ordinarily form a part of the ... school [or college].” State v. Laurel Crest Academy, 2 Conn. Cir. 294, 198 A. 2d 229, 232 (Conn. Cir. Ct. 1963).

If, as appellants allege, the sanctioning of Loyola’s use of the Millbrook properties is tantamount to the virtual elimination of zoning restraints upon schools, colleges, and universities, the remedy does not lie with the courts. Rather, redress should be sought from the legislative body that brought forth the exception in the first instance. It is up to the City Council of Baltimore, if they share apellants' fears, to curtail the expansion of educational use into R-l Districts.

There yet remains the question of the parking lot adjacent to 4603 Millbrook Road. The testimony before the Board was to the effect that there were spaces for somewhere in the twenty (20) to forty (40) vehicle range. The City Court’s order implicitly approves the use of the parking lot but states no reason why it so determined. Other than the single sentence relative to 4603 Millbrook Road, that, “[i]t also contains a parking area,” the opinion of the City Court is silent in regard to that parking area.

We think that in view of The Zoning Ordinance of Baltimore City, Ord. § 4.1-ld (1971), the court may have been without jurisdiction to permit the parking area in the R-l Single-Family Residence District.

The City Council is the proper body to determine whether an off-street parking area is permissible at 4603 Millbrook Road unless the parking is deemed to be an accessory use as that term is defined in The Zoning Ordinance of Baltimore City, Ord. § 13.0-2 1 (1971). We shall remand the matter to the City Court for remand to the Board for a finding of whether the parking area constitutes an accessory use.

Judgment affirmed as to 4601 Millbrook Road.

Costs to be paid by appellants.

Judgment affirmed in part and reversed and remanded in part as to 4608 Millbrook Road.

Costs to be divided equally between appellants and appellees.

      . See Van Schaik v. Van Schaik, 35 Md. App. 19, 20, n. 1, 369 A. 2d 133, 134, n. 1 (1977).

      . “Property is the fruit of labor: property is desirable; it is a positive good.” Abraham Lincoln (1809-1865).

      . The protestants consist of Dr. Ian R. Anderson, Helen M. Anderson, his wife, Leo J. Bowers, Robert L. Hickey, Dr. W. Richard Ferguson and Jean H. Ferguson, his wife. Dr. Pien-Chien Huang, Theodore Richard, Paul P. Swett, Jr., and Catherine Swett, his wife, ana the Mayor and City Council of Baltimore.

      . Several cases have held that off-campus “dormitories” belonging to the school and used by its students are an integral part of a college or school, having an educational purpose and thus permissible in a residential zone. Schueller v. Board of Adjustment of the City of Dubuque, 250 Iowa 706, 95 N.W.2d 731 (1959); Yale University v. New Haven, 71 Conn. 316, 42 A. 87 (1899).


author: Liss, J.,

text:
    SUNDRI ALIMCHANDANI v. ALICE L. GOINGS et al.
    [No. 982,
    September Term, 1977.]

      Decided May 11, 1978.

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

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

      Marvin Ellin, with whom were Ellin & Baker on the brief, for appellees.
   Liss, J.,

delivered the opinion of the Court.

Alexander Pope, in his “Moral Essays,” Epistle III, to Allen Lord Bathurst, begins a poem in which he explores the effect of avarice on mankind by posing the question, “Who shall decide when doctors disagree, and soundest Causists doubt, like you and me?” We here supply the answer — not the judge, but the jury.

This case arises out of a five count declaration charging the appellant, Sundri Alimchandani (hereinafter Dr. Alim) and the Maryland General Hospital with medical malpractice. The first count, brought by the estate of the decedent, Willie Goings, sought damages for his wrongful death and pain and suffering; the second through the fifth counts sought recovery of damages for his surviving wife, Alice L. Goings, and his three surviving daughters, Janet, Theresa, and Patricia. The case was submitted to the jury which returned verdicts in favor of the appellees under the various counts totaling more than a half-million dollars. It is from the judgments entered on these verdicts that this appeal is filed.

The decedent was a healthy, 28-year-old construction worker who entered Maryland General Hospital on February 24, 1975 for a routine tonsillectomy. The operation was performed the following morning by a Dr. Stitchel, who described the procedure as uneventful. The appellant was the attending anesthesiologist. The hospital chart shows that the anesthesia took effect at 8:35 A.M. and lasted until 9:45 A.M., at which time the decedent was removed to the recovery room. There was conflicting testimony as to whether the decedent was conscious, semi-conscious, or unconscious at the time of his removal to the recovery room. Prior to being transported from the operating room, the decedent was placed on a stretcher in a supine position and the endotracheal tube, which is used to deliver oxygen to a surgical patient, was removed. The decedent was delivered to the recovery room by Dr. Alim, who, after completing the anesthesia chart and checking his vital signs, left the decedent in the care of the recovery room personnel. At approximately 10 A.M. the decedent was discovered by a recovery room nurse in a near sitting position with his head drooped over and his eyes closed. The nurse correctly concluded that the patient was in the throes of a cardio-respiratory arrest and summoned the other two recovery room nurses. After checking and finding minimal evidence of the patient’s vital signs, the nurses attempted to deliver oxygen to the decedent’s lungs by the use of a device consisting of a face mask and bag, known as an “ambu” bag. In the meantime, the hospital’s emergency resuscitation team was summoned and succeeded in reviving the patient, but not until the temporary deprivation of oxygen to the brain had caused extensive brain damage. The patient remained in a coma for 12 days and then succumbed.

Appellant presents the following two issues for determination in this appeal:

I. Did the trial court err in instructing the jury that if it found that the decedent was entrusted to the recovery room staff, unconscious, without an artificial airway, and in a supine position then the appellant was negligent as a matter of law, when there was testimony from three expert witnesses to the contrary?

II. Did the trial court err in instructing the jury that it could award damages for conscious pain and suffering from the time of decedent’s respiratory arrest until his death 12 days later when all evidence showed that the decedent was unconscious throughout that period?

I.

At the trial, appellees called Barnett A. Greene, M.D., of New York City,, who qualified as an expert in anesthesiology. Based on his examination of the hospital records, Dr. Greene testified that the decedent was in general good health prior to the operation and gave his conclusions as to the chronology of events following the tonsillectomy. He stated that when the patient was placed in the care of the recovery room nurse he was in an unconscious state with his head elevated and with no endotracheal tube or artificial airway in place. He testified that this treatment involved three major deviations from what he perceived to be the prevailing standard of post-operative care in Baltimore City or a similar community and that these deviations were the cause of the decedent’s death. They were: (1) as the patient was unconscious, he should not have been extubated in the operating room; i.e., the endotracheal tube then in place should have been permitted to remain; (2) the decedent should not have been placed in a supine position but should have been placed on his side for the reason that while in a supine position the decedent’s body fluids were permitted to enter the trachea and these fluids would have been discharged from the mouth if he had been placed on his side; and (3) the anesthesiologist, appellant, should have remained with the unconscious, extubated patient until such time as he had regained a sufficient degree of responsiveness to “respond to [his] own name with a purposeful response,” and she should not have left the patient to the care of the recovery room nurses until such time. The appellant, in her own testimony, admitted that the post-operative patient is primarily the responsibility of the anesthesiologist.

Appellant’s expert witnesses sharply disagreed with Dr. Greene’s exposition of the prevailing standard of post-operative anesthesiological care required by an adult tonsillectomy patient. They also differed with his conclusion from the hospital records that the decedent was unconscious at the time he left the operating room.

Dr. Alim testified in her own behalf that after the operation was completed the patient was semi-conscious and the endotracheal tube was, therefore, no longer necessary. Sheppard Kaplow, M.D., a qualified expert in anesthesiology, concluded from the hospital records that the patient was semi-conscious at the time of extubation and that the accepted standards of anesthesiological practice, under these circumstances, permitted extubation in the operating room, the positioning of the patient on his back and, once vital signs were taken, the entrusting of the patient to the recovery room personnel.

Under cross-examination, the appellant was asked, “If ... when the patient was brought in the recovery room, he was unconscious and ... [was] left on his back, would that not

constitute a breach of accepted anesthesia post-surgical care?” She responded in the negative.

Dr. Kaplow, under cross-examination, was asked whether he “would permit an adult tonsil patient in an unconscious state to be left on his back, either elevated or not elevated, without an endotracheal tube in place____?” He answered in the affirmative. In re-direct examination, Dr. Kaplow testified as follows:

“Q. Doctor, so it is clear, Mr. Ellin, I believe, asked you if, in your opinion, it is a deviation from accepted standards to leave an unconscious patient supine in the recovery room with a nurse. What was your answer? A. I said it was not a deviation from the custom of practice.
“Q. Why? Why do you leave an unconscious patient in the recovery room with the nurse, even an unconscious patient? A. Because the nurses, depending on the other complicating factors that the patient may have — unconsciousness itself is not an indication that you have to stay with the patient until the patient is conscious. These nurses who are there are trained, particularly if the patient has a normal airway, without an oral tracheal tube, as referred to here, or a pharyngeal tube, but is breathing without any artificial means, it is within the limits of the nurse’s competence, a nurse accepted and trained to work in the recovery room, to watch that patient’s airway. For a number of reasons, this patient may not need or cannot tolerate any artificial airway. If the patient is having problems with a normal airway, then an anesthesiologist might decide to stay until the patient can demonstrate further competence, further ability of the patient to maintain his own airway. But this again is a question of judgment, a question of level of consciousness.”

Appellant also presented as an expert witness, Louis Fritz, M.D., Chief of Anesthesiology at Maryland General Hospital, who on cross-examination stated:

“Q. Right. Now, if he were unconscious, Doctor, the position of choice, in view of the fact that there was no longer a tube in his airway to keep it open, would have been the semi-prone position, on his side, somewhat as shown to this jury a dozen times throughout this trial? Let me show it to you, so you know what I am talking about. A. I’m familiar with the position that you are indicating, if that is what you are talking about.
“Q. There is a drawing here of a model on her side, with her head down and a diagram showing the flow of any secretions out of the mouth and onto the table.
A. I am familiar with the position that you are indicating.
“Q. You certainly agree that that is a more desirable position with an unconscious patient, is it? A. I do not agree.
“Q. You do not agree with that? A. Right.”

This, then, was the state of the testimony when all of the witnesses had been heard and the trial judge was ready to instruct the jury. In the course of those instructions, the court advised the jury as follows:

“Now then, I instruct you, as a matter of law, that if you find that Dr. Alim left the patient in the recovery room while the patient was unconscious and without an artificial airway and in a supine position, when the patient was unable to respond to his name with purposeful response, then that would constitute negligence and her departure from the recovery room would be premature and your verdict should be in favor of the Plaintiffs against the Defendant Alim. On the other hand, if the evidence does not establish these facts but, rather, that that patient was semi-conscious, was able to respond to verbal commands, was breathing spontaneously, and that then it would be proper to place the patient in a supine position or, at least, it would not be improper, it would not be a deviation from the standards of care and one would not need an artificial airway and, hence, the leaving of the patient in the recovery room by Dr. Alim under those circumstances would not constitute negligence. Thus any later act of negligence by the personnel in the recovery room, such as elevating the patient’s head, of which the Doctor was not aware, would not constitute negligence in and of itself by the Doctor. I would instruct you in this connection that there is no evidence in this case that Dr. Alim ordered the patient’s head to be elevated.
“I want to go back to one other context. The Defense’s contention is that, even if the patient was unconscious in the recovery room, that, under the circumstances I have just mentioned, Dr. Alim had a right to leave the recovery room and her departure was not, under those circumstances, premature.” (Emphasis supplied).

Appellant urges that the appellees’ allegations of negligence rest entirely upon the testimony of Dr. Greene. As we have previously noted, Dr. Greene contended that appellant’s .treatment of the decedent represented three major departures from the accepted standards of care to which we have previously alluded. In reaching his conclusion, Dr. Greene accepted the nurse’s notation on the recovery room chart that the patient was unconscious and rejected the notation on the chart by Dr. Alim that the patient was semi-conscious.

Appellant’s defense was based on a two-pronged attack on Dr. Greene’s testimony. First, she contended that Dr. Greene’s opinion was factually inaccurate because Dr. Greene relied solely upon the nurse’s notes which indicated that the patient was unconscious when he was removed to the recovery room. Appellant urges that two of her witnesses, Dr. Stitchel and Dr. Saraceno, testified that they observed the patient at the critical time and that he was then semi-conscious. Appellant contends correctly that this raised a factual question to be determined by the jury. We note that the judge’s instruction on this issue did leave to the jury the factual determination as to the decedent’s state of consciousness at the time of his removal to the recovery room. The trial court stated as a matter of law the consequences which would flow from the jury’s determination on this issue. Since this factual dispute was left to the jury for decision, we find no error in the instruction in this regard.

Appellant had a second prong to her defense which she renews in this appeal. She pointed out that even assuming, arguendo, that Dr. Greene’s factual conclusions were correct; i.e., that the decedent was unconscious at the crucial time, there was testimony from her witnesses to the effect that the treatment given did not amount to a departure from accepted anesthesiological standards. This testimony raised an issue of fact which was required to be submitted to the jury for its determination. Appellant urges that the portion of the instruction given by the trial judge, previously emphasized by us in this opinion, was, in view of the contradictory state of the evidence at the conclusion of the case, erroneous and prejudicial. That instruction completely ignored the testimony of the appellant’s experts as to the accepted medical and anesthesiological standards applicable to an unconscious post-operative patient. Appellant’s counsel objected to the instruction as given, but the trial judge refused to modify or correct the instruction. In a different context, after other objections to the trial court’s instruction, the court did give the following additional instruction:

“Finally, members of the jury, I had defined standard of care to you and thought I had also said this, but if I didn’t, I want to instruct you that the standard of care is that degree of care and skill exercised by reasonably competent practitioners in the class of this practitioner, an anesthesiologist, in this community or in a similar community with respect to these affairs.
“Finally, if the jury will remember, I tried to equally give the contentions of both sides. That doesn’t mean I am favoring the Plaintiffs or the Defendants. I am simply saying that they have contended various things, each side.
“Now, with respect to the Defendant, I said that the defense’s position was that certain things were right. Out of an abundance of caution, I tell you that the Defendants not only contend that these matters were right, but that they were in conformance with the standard of care; that it was not a breach or deviation of any standard of care.”

It is hardly a novel principle of law that in the light of contradictory evidence on an issue, the evidence must be submitted to the jury for its determination. Philadelphia, Wilmington & Baltimore R. Co. v. Fronk, 67 Md. 339 (1887). It is the office of the judge to instruct the jury on points of law and that of the jury to decide matters of fact. As Judge Lowe, of this Court, pointed out in Glasgow v. Hall, 24 Md. App. 525, 532, 332 A. 2d 722 (1975), citing to Rex v. Poole, Cas. temp. Hardw. 28, a case predating the founding of our Republic:

“... it is of the greatest consequence to the law and to the subject that these powers of the judge and jury be kept distinct, that the judge determine the law, the jury the fact; and that if ever they come to be confounded, it would prove the confusion and destruction of the law.”

Accord, Metropolitan Ry. Co. v. Jackson, Law Rep., 3 Appeal Cases 197.

The trial judge’s instruction to the jury that if it found certain facts which he enumerated to exist it must, as a matter of law, find the appellant guilty of negligence and must find in favor of the appellees, was a patently erroneous instruction in view of the testimony of appellant’s experts that even if the enumerated facts were found to exist no deviation from the accepted medical and anesthesiological standards had occurred. The contradictory testimony of the appellant’s and appellees’ experts raised an issue of fact which was required to be determined by the jury and not as a matter of law by the judge.

Appellees urgently call to our attention the several pronouncements of the Court of Appeals in which the rule has been stated:

“The instructions of the trial court to the jury must be read as a whole and it is not permissible to take isolated portions which may contain inartistic methods of expression, when the charge, considered as a whole, fairly presénts the case to the jury on issues presented by the evidence in the case.”

Clayborne v. Mueller, 266 Md. 30, 40-41, 291 A. 2d 443 (1972); Jones v. Federal Paper Bd. Co., 252 Md. 475, 484, 250 A. 2d 653 (1968). See: West v. Belle Isle Cab Co., 203 Md. 244, 100 A. 2d 17 (1953).

In Marlow v. Cerino, 19 Md. App. 619, 633, 313 A. 2d 505 (1974), this Court had before it a medical malpractice case in which we rejected a plaintiff’s attack on the trial court’s instructions. Quoting from Beckner v. Chalkley, 19 Md. App. 239, 248, 310 A. 2d 569 (1973), we stated:

“ ‘The Court of Appeals and this Court have consistently held that if jury instructions, when read as a whole, clearly set forth the applicable law, there is no reversible error. Nizer v. Phelps [252 Md. 185, 249 A. 2d 112 (1969)]; Alston v. Forsythe, 226 Md. 121, 172 A. 2d 474 (1961); Lemons v. Chicken Processors, 223 Md. 362, 164 A. 2d 703 (1960); Kable v. State, 17 Md. App. 16, 299 A. 2d 493 (1973); Shotkosky v. State, 8 Md. App. 492, 261 A. 2d 171 (1970). One of the reasons for such a rule is that sometimes a trial court will err in some of the legal propositions announced to the jury, but the errors are harmless. “Wrong directions which do not put the traveler out of his way, furnish no reason for repeating the journey.” Cherry v. Davis, 59 Ga. 454, 465 (1877).’ ”

We have no quarrel with these statements as abstract principles of law. Our problem is that when we apply these principles to the trial judge’s instructions in this case, we are forced to conclude that he committed reversible error. Appellees conceded in argument before us that standing alone the instruction given which required a finding of negligence by Dr. Alim “as a matter of law,” assuming certain facts, was erroneous. They contend that the other instructions given by the judge and the final instruction given cured the error. We do not agree. If anything, we find that the additional instructions exacerbated the confusion. Once the trial judge instructed the jury that if they found certain facts to be true, then they must find as a matter of law for the plaintiff, it was no remedy to tell the jury that the defense contended that under those same facts the care was appropriate. That language can hardly be characterized as submitting the question to the jury for its determination.

We assume that the jury, having been made aware of the respective rights and duties of the judge and the jury in determining matters of law and of fact, would have followed the instructions of the trial judge. As was stated by the Supreme Court in Delli Paoli v. United States, 352 U. S. 232, 242, 77 S. Ct. 294, L.Ed.2d 278 (1957):

“It is a basic premise of our jury system that the court states the law to the jury and that the jury applies that law to the facts as the jury finds them. Unless we proceed on the basis that the jury will follow the court’s instructions where those instructions are clear and the circumstances are such that the jury can reasonably be expected to follow them, the jury system makes little sense. Based on faith that the jury will endeavor to follow the court’s instructions, our system of jury trial has produced one of the most valuable and practical mechanisms in human experience for dispensing substantial justice.”

According to the specific language in the trial court’s instructions, the jury was required as a matter of law to return a verdict for the plaintiffs if they found the facts enumerated by the judge to exist. Neither the prior general instruction that the jury was to determine the appropriate standard of medical and anesthesiological care, nor the subsequent instruction that the appellant contended that the care given the patient was within appropriate standards could cure the obvious error of the trial court’s instruction in light of the conflicting testimony. Under the circumstances, we must reverse and grant a new trial.

In view of this conclusion it is not necessary that we consider the second issue raised by this appeal since that issue is an integral part of the controversy and will certainly be one of the issues to be determined in the new trial.

Judgments reversed; case remanded for new trial.

Costs to be paid by appellees.

      . The Poetic Works of Alexander Pope (Sir Adolphus William Ward Ed., 1964).

      . A directed verdict was entered against Maryland General Hospital at the close of all the evidence. Maryland General offered no evidence in defense and is not a party to this appeal.


text:
    DYTHIAN THEOLAEF ROBESON a/k/a Dykie v. STATE OF MARYLAND
    [No. 997,
    September Term, 1977.]

      Decided May 12, 1978.

      The cause was submitted on briefs to Liss, Wilner and Couch, JJ.
    Submitted by Alan H. Murrell, Public Defender, and Mark Colvin, Assistant Public Defender, for appellant.
    Submitted by Francis B. Burch, Attorney General, Diane G. Goldsmith, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Roy Breslow, Assistant State’s Attorney for Baltimore City, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Appellant, Dythian Theolaef Robeson a/k/a Dykie, was convicted by a jury in the Criminal Court of Baltimore of first degree murder, assault with intent to murder and two counts of the use of a handgun in the commission of a crime of violence. Sentences were imposed and it is from these judgments that this appeal was filed.

Appellant raises six contentions on appeal which he states as follows:

“1. Did the trial court err in admitting evidence of Appellant’s pre-trial silence?
“2. Was the evidence insufficient to sustain Appellant’s first degree murder conviction?
“3. Did the trial court err in denying Appellant’s motion for a new trial based upon newly discovered evidence?
“4. Was Appellant improperly convicted of and sentenced for both first degree murder and use of a handgun in the commission of a crime of violence?
“5. Did the trial court commit plain error in failing to instruct the jury as to the definition of use of a handgun in the commission of a crime of violence?
“6, Was Appellant denied the effective assistance of counsel in violation of the Sixth Amendment to the United States Constitution?”

We find no merit in any of these contentions and shall affirm.

1.

The evidence produced at trial indicated that on December 27,1976 Officer Thomas Wade responded to a call in the 800 block of George Street to investigate a shooting. On his arrival at the scene he observed three persons standing near a station wagon, the right side window of which had been shattered. A spent bullet was found in the door on the driver’s side. Lying in the gutter face down was a dead black male later identified as Stilton Jones, nicknamed “Cookie.” Harry Johnson, the owner of the station wagon, testified that on that day he went to 851 George Street to purchase $25 worth of heroin from the appellant but was advised that he could only buy a $50 packet. Johnson saw Cookie there as a customer, and although he had never seen Cookie before, he suggested that they pool their funds and buy a $50 packet of heroin. Cookie agreed and the transaction was completed. Johnson, Cookie and a friend of Cookie’s named McEachin then went to a nearby apartment and injected the heroin. They were disappointed with the quality of the heroin and returned to the appellant’s apartment to complain. Cookie and Johnson went in and Johnson left to return to his vehicle. McEachin was seated in the back of the car. Cookie came out and got into the front passenger’s seat. Appellant came out of the building and motioned to Cookie to come to him. Cookie walked toward the appellant and Johnson heard two shots. A second or two later the appellant was at the front passenger’s side of the car and shot Johnson in the head. Johnson was able to drive to the hospital where he was treated. Johnson stated he did not actually see the appellant shoot Cookie.

McEachin’s testimony was essentially the same as Johnson’s except that McEachin stated that he saw Jones and the appellant together, heard one or two shots and then saw Cookie fall to the ground. He saw the second shot fired and saw the appellant holding the gun. His testimony as to the shooting of Johnson was identical to that of Johnson himself.

Appellant, supported by his girl friend as a witness, testified on his own behalf that he knew Cookie as a narcotics pusher and that on the night in question he and his girl friend were leaving his apartment preparing to go to a restaurant when he heard two shots, then heard a car speeding away. He stated that he arranged for an ambulance to be called for Cookie and was still on the scene when the police arrived. He denied shooting Cookie, denied selling narcotics and said he did not have a gun.

On cross-examination the prosecutor, over objection, was permitted to question the appellant as to whether he had advised the police of this alleged sequence of events. Appellant contends that he had a right under the Fifth Amendment to the United States Constitution to pre-arrest silence and that the State violated this right by eliciting from him, during his cross-examination, the fact that he had failed to contact the police and advise them of his knowledge of the events surrounding the murder.

We do not believe, under the circumstances in this case, that the appellant’s actions in not communicating with the police amount to “silence” in the constitutional sense of that word. “Silence” in the constitutional sense is the Fifth Amendment right to remain silent when confronted by one’s accusers following an arrest or in a custodial interrogation setting. Evidence of a defendant’s silence under those circumstances is not admissible because: (1) the admission of such evidence would infringe upon his Fifth Amendment right to remain silent, Doyle v. Ohio, 426 U. S. 610, 96 S. Ct. 2240, 49 L.Ed.2d 91 (1976); Younie v. State, 272 Md. 233, 322 A. 2d 211 (1974); Sutton v. State, 25 Md. App. 309, 334 A. 2d 126 (1975); and (2) silence at the time of arrest lacks significant probative value and carries with it too great a potential for prejudice, United States v. Hale, 422 U. S. 171, 95 S. Ct. 2133, 45 L.Ed.2d 99 (1975).

The question presented here for the first time to a Maryland appellate court, is whether the identical restrictions apply to cross-examination concerning “pre-arrest silence” with respect to exculpatory testimony offered by a defendant for the first time at the trial on the merits.

We believe it is necessary to set out in detail the cross-examination which is questioned by this appeal and here reproduce it as follows:

“Q [By assistant state’s attorney] Did you move out of your house?
A [By appellant] Yes, I did.
Q You were hiding from the police, weren’t you?
A Not really hiding.
Q Well, you knew a warrant was out for your arrest, didn’t you?
A Yes, I did.
Q You were hiding?
A I was.
Q Had you your suitcases there?
A Yes, I did.
Q You had all your clothes there?
A Yes, I did.
Q In a separate room; didn’t you?
A From hers.
Q In her house?
A Yes, I did.
Q There was a bed in that room, wasn’t there?
A Yes, it was.
Q You were hiding from the police?
A I was staying there temporarily until, you know, I could hear the, you know, the results of this, you know. Because I knew I didn’t do it, and I wasn’t the only one that they said did it at the time, because the police come into the restaurant and said they had a warrant for someone else for it. And then I heard they had a warrant for me for a period. And I didn’t want to get arrested for no homicide I know I didn’t do it So, I did, you know, leave my mother’s house.
Q Until January 3rd, until you were arrested; right?
A Yes.
Q You didn’t tell the police what happened. Did you go down to the police and tell them you had nothing to do —
MR. SUTLEY: I would object, your Honor.
THE COURT: I think that is a perfectly proper question. I will take the answer.
Q (BY MR. BRESLOW) Did you ever tell the police what happened?
A No, I didn’t. I told them what I knew after, you know, after —
THE COURT: You didn’t tell them voluntarily; did you?
THE WITNESS: No, I didn’t.
THE COURT: That is what the State wants to know.
Q (BY MR. BRESLOW) You didn’t call the police and tell them that you were innocent?
A No, I didn’t.
Q You didn’t know why the warrant was out for your arrest?
A No, I didn’t..
Q You were with Rose Munford, you didn’t tell them that?
A No, I didn’t.
Q That you were having tea?
A No, I didn’t.
Q You didn’t tell the police that; did you?
A No, I didn’t.
Q Why not?
A I didn’t tell them that until after I was apprehended. The reason I didn’t call before was because, you know, I knew I would get locked up.
Q Because you did it?
A No, no, no.
Q Then why didn’t you tell them?
A Why don’t I call voluntarily?
Q And tell them?
A Because, you know, it was Christmas, a holiday. I didn’t want to be locked up — I would have been locked up any way.
Q Because you committed this crime?
A Not because I committed the crime.
Q Why did you know you would be locked up?
A Because I know the procedure you go through. Q Yes, when you commit a crime they arrest you? A No, that’s not the reason.
Q Well, what is the reason; I’m asking you?
A Because I didn’t want to be locked up.
Q During the Christmas holidays?
A Right.
Q But the Christmas holidays were over.
A The New Year’s.
Q Well, you were out for New Year’s; weren’t you?
A Yes, I was.
Q Did you call the police on January 2nd?
A No, I didn’t.
Q January 3rd?
A No, that was the day I got locked up. That was the day they caught me.”

Doyle v. Ohio, supra, and its progeny, stand for the proposition that a defendant has an absolute right to remain silent after arrest and the giving of the rights prescribed by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966), and that the use of his silence for impeachment purposes under these circumstances is violative of the Due Process Clause of the Fourteenth Amendment. See: Reid v. Riddle, 550 F. 2d 1003 (4th Cir. 1977). Similarly, as stated in Younie v. State, supra, and Sutton v. State, supra, a prosecutor may not comment on defendant’s silence during police custodial interrogation. Appellant urges this Court to extend the holding in Doyle and to declare that he has a constitutional right to remain silent prior to arrest and prior to receiving Miranda warnings and that that right was violated by the cross-examination in this case.

In support of this proposition the appellant relies primarily on a series of cases decided by the intermediate appellate courts of Florida. The cases are Brooks v. State, 347 So. 2d 444 (Fla. App. 1977); Webb v. State, 347 So. 2d 1054 (Fla. App. 1977) and Weiss v. State, 341 So. 2d 528 (Fla. App. 1977). Weiss and Brooks were decided by the Third District Court of Appeals of Florida and Webb by the Fourth District Court of Appeals of Florida.

When these cases are examined, however, they are found to be factually inapposite. In Weiss v. State, the prosecutor asked a defendant, “Did you, at any time, ever receive an offer or an invitation to come to the State’s Attorney’s Office and explain your position to us, prior to your arrest?” and later was asked, “Did you at any time before you testified today, sir, give an account of the events that occurred that evening to anyone other than your counsel?” Id. 341 So. 2d at 530. The opinion is silent as to whether the defendant answered the questions, but the inquiries were emphasized again by the prosecutor when he argued to the jury as follows:

“He has not talked to anybody other than his attorney even though in the five or six days, in the interim between the time that this incident occurred at Jackson Memorial Hospital and the time that he was arrested, he never bothered to come up and say, T understand you are investigating me. Here is how it happened. I never laid a hand on this man’.... [H]e does not even bother to tell a soul until some three or four or five months after this happened, here this afternoon. You can form your own conclusion on that.” Id. at 530.

The trial court rejected a motion for a mistrial, and the District Court of Appeals reversed on the following grounds:

“In following his attorney’s advice and refusing to testify or offer any explanation to either the State Attorney or the Internal Security Division prior to his arrest, appellant was simply availing himself of his constitutional guarantee of freedom from self-incrimination. U.S. Const. Amends. V, XIV.
“We are therefore of the opinion that the claimed privilege of silence was constitutional in dimension; therefore, it was reversible error not to grant appellant a mistrial when the prosecution attempted to utilize said silence for impeachment of credibility purposes. Doyle v. Ohio, 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976); Shannon v. State, 335 So.2d 5 (Fla. 1976); Bennett v. State, 316 So.2d 41 (Fla. 1975).
“In addition, and notwithstanding our aforementioned ruling concerning the applicability of the fifth amendment to the case sub judice, we hold that even if the above constitutional safeguard was inapplicable here, evidence of appellant’s silence for impeachment purposes, in light of appellant’s attorney’s advice to appellant not to testify during the administrative investigation, lacked any real probative value and was so overly prejudicial to appellant’s case as to constitute reversible error, c. f. United States v. Hale, 422 U.S. 171, 95 S.Ct. 2133, 45 L.Ed.2d 99 (1975).” Id. at 530.

We note a substantial factual difference between Weiss and the case sub judice, i.e., in Weiss the pre-trial silence was predicated upon the advice of the defendant’s attorney that the defendant remain silent during the course of a prior administrative investigation. We also conclude that the District Court’s reliance upon Doyle is misplaced since, as we shall hereafter demonstrate, the holding of the Supreme Court in Doyle is a much narrower one than that in Weiss.

Webb v. State, supra, is also distinguishable because there the silence which was the subject matter of the appeal occurred after the appellant’s arrest. The state attempted to cross-examine the accused as to his failure to advise the police of an alibi to which he testified for the first time at the trial. The state contended that the cross-examination with respect to his silence was admissible because the record did not disclose that the appellant had been given his Miranda warnings. The District Court of Appeals of Florida held that Doyle, supra, was controlling and as its reasons stated the following:

“[W]e note that, while Miranda warnings make it even more offensive to use a person’s silence upon arrest against him, the absence of such warnings does not add to nor detract from an individual’s Fifth Amendment right to remain silent. If one has a right upon arrest not to speak for fear of self-incrimination, then the mere fact the police call his attention to that right does not elevate it to any higher level.” Id. 347 So. 2d at 1056.

In this case we note that the cross-examination was with reference to pre-arrest conduct only.

Brooks v. State, supra, is also inapposite. In that case the alleged silence occurred during the police investigation of a stabbing. The facts in that case clearly indicate that the silence was justified under the Fifth Amendment. The accused, who was an eyewitness, did not speak up when the person who committed the stabbing gave an exculpatory and false statement to the police. From these circumstances, in a trial in which the eyewitness was charged with participating in the crime, the prosecutor argued that the accused’s failure to contradict the co-defendant’s story to the police was proof that he was a party to the crime. The District Court of Appeals reversed on the ground that the argument was prejudicial.

Appellant also urges that People v. Sheperd, 551 P. 2d 210 (Colo. App. 1976) should persuade us of the validity of his contention. We find, however, upon examination of Sheperd that the Colorado Court of Appeals noted, “The People concede that the right of an accused to remain silent exists prior to arrest and that thus the prosecutor is generally foreclosed from alluding to the exercise of that right in questions propounded to the defendant.” There is no such concession in this case. To the contrary the State vigorously contends that, while an accused may be entitled to pre-arrest silence, this does not preclude the State’s right to cross-examine as to the reasons for that silence, particularly where the accused takes the witness stand and offers an exculpatory statement or alibi for the first time at the trial on the merits.

Appellant also relies heavily on United States v. Hale, supra. In that case the defendant was arrested for robbery and was taken to the police station where, after having been advised of his right to remain silent, he made no response to an officer’s inquiry as to the source of money found on his person. The defendant testified at his trial. In an effort to impeach his alibi, the prosecutor by his cross-examination was able to establish that the accused did not offer the exculpatory information to the police at the time of his arrest. The Supreme Court reversed but gave as its rationale for the reversal the following:

“In most circumstances silence is so ambiguous that it is of little probative force. For example, silence is commonly thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with contemporaneous statements of others. See 4 Wigmore Section 1071. Silence gains more probative weight where it persists in the face of accusation, since it is assumed in such circumstances that the accused would be more likely than not to dispute an untrue accusation. Failure to contest an assertion, however, is considered evidence of acquiescence only if it would have been natural under the circumstances to object to the assertion in question. 3A Wigmore Section 1042. The Raff el Court found that the circumstances of the earlier confrontation naturally called for a reply. Accordingly, the Court held that evidence of the prior silence of the accused was admissible. But the situation of an arrestee is very different, for he is under no duty to speak and, as in this case, has ordinarily been advised by government authorities only moments earlier that he has a right to remain silent, and that anything he does say can and will be used against him in court.
“At the time of arrest and during custodial interrogation, innocent and guilty alike — perhaps particularly the innocent — may find the situation so intimidating that they may choose to stand mute. A variety of reasons may influence that decision. In these often emotional and confusing circumstances, a suspect may not have heard or fully understood the question, or may have felt there was no need to reply. See Traynor, The Devils of Due Process in Criminal Detection, Detention, and Trial, 33 U. Chi. L. Rev. 657, 676 (1966). He may have maintained silence out of fear or unwillingness to incriminate another. Or the arrestee may simply react with silence in response to the hostile and perhaps unfamiliar atmosphere surrounding his detention. In sum, the inherent pressures of in-custody interrogation exceed those of questioning before a grand jury and compound the difficulty of identifying the reason for silence.
Respondent, for example, had just been given the Miranda warnings and was particularly aware of his right to remain silent and the fact that anything he said could be used against him. Under these circumstances, his failure to offer an explanation during the custodial interrogation can as easily be taken to indicate reliance on the right to remain silent as to support an inference that the explanatory testimony was a later fabrication. There is simply nothing to indicate which interpretation is more probably correct.” (Footnote omitted). Id. 422 U. S. at 176-77.

In this case, it seems clear to us that the cross-examination complained of by the appellant was permissible in order to establish his conduct after the occurrence of the crime. The appellant testified in his own behalf and in the course of that testimony admitted his presence at the scene when the murder took place. He gave the court and jury a story which exculpated him from any responsibility for the crime. He produced as a witness a girl friend who related the same circumstances to the jury. He admitted under cross-examination, without objection, that he had changed his residence immediately after the shooting and was hiding from the police. He stated that he was hiding because he was afraid that he would be arrested for the crime. All of this evidence was clearly admissible as evidence which tended to show flight on the part of the accused. King v. State, 201 Md. 303, 93 A. 2d 556 (1953); Carter v. State, 10 Md. App. 50, 267 A. 2d 743 (1970); II J. Wigmore, Evidence Section 276 (3d ed. 1940). In Carter, supra, at 55 we said, “The failure of a defendant to conduct himself as would an innocent man may show knowledge of guilt.” The State in this case had no way to explore that conduct except by cross-examination.

The subsequent questions by the State as to why the accused, an admitted eyewitness, did not contact the police, were germane to his conduct; i.e., his hiding from the police. To deprive the State of the weapon of cross-examination with respect to pre-arrest conduct would in effect leave the defendant in a position where he might fabricate any exculpatory story he chose, to be unveiled for the first time at trial, without the necessity of having to defend his version of the facts against the rigors of cross-examination.

We do not believe that Doyle v. Ohio, supra, requires that we extend its holding to pre-arrest, non-custodial silence. The Supreme Court had before it, in Doyle, the narrow question of “whether a state prosecutor may seek to impeach a defendant’s exculpatory story, told for the first time at trial, by cross-examining him about his failure to have told the story after receiving Miranda warnings at the time of his arrest(Emphasis supplied). Id. 426 U. S. at 611. That this was, in fact, the sole question decided in Doyle is implicit in the language of Mr. Justice Powell, speaking for the majority of the Court, in reaching the conclusion that such cross-examination violated the Due Process Clause of the Fourteenth Amendment. The Court stated:

“Despite the importance of cross-examination, we have concluded that the Miranda decision compels rejection of the State’s position. The warnings mandated by that case, as a prophylactic means of safeguarding Fifth Amendment rights, see Michigan v. Tucker, 417 U. S. 433, 443-444 (1974), require that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation. Silence in the wake of these warnings may be nothing more than the arrestee’s exercise of these Miranda rights. Thus, every post-arrest silence is insolubly ambiguous because of what the State is required to advise the person arrested. See United States v. Hale, 422 U.S., at 177, 45 L.Ed.2d 99, 95 S. Ct. 2133. Moreover, while it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial.” (Footnotes omitted; emphasis supplied). Id. 426 U.S. at 617-18.

Mr. Justice Stevens, in his dissenting opinion, pointed out that Doyle was a case in which the defendants’ silence at the time of their arrest was graphically inconsistent with their trial testimony that they were the unwitting victims of a “frame-up” in which the police did not participate. He suggested that if the defendants had been framed, their failure to mention that fact at the time of their arrest was inexplicable, and that under accepted rules of evidence their silence was tantamount to a prior inconsistent statement and admissible for purposes of impeachment. Doyle, supra, 622. III A J. Wigmore, Evidence Section 1042 (Chadbourn rev. 1970). Justice Stevens noted that so far as the Fifth Amendment privilege was concerned, a defendant who voluntarily foregoes his privilege not to testify and presents exculpatory or mitigating evidence, subjects himself to relevant cross-examination without the right to reclaim Fifth Amendment protection on a selective basis. Fitzpatrick v. United States, 178 U. S. 304, 20 S. Ct. 944, 44 L. Ed, 1078 (1900). In a footnote to Doyle, Justice Stevens quoted from Brown v. United States, 356 U. S. 148, 154-55, 78 S. Ct. 622, 2 L.Ed.2d 589 (1958) as follows:

“If he takes the stand and testifies in his own defense, his credibility may be impeached and his testimony assailed like that of any other witness, and the breadth of his waiver is determined by the scope of relevant cross-examination. ‘ [H]e has no right to set forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.’ (citation omitted).” Id. 426 U. S. at 629 n. 8.

A case similar on the facts to this case was decided in the District of Columbia Court of Appeals. In Ester v. United States, 253 A. 2d 537 (1969), a defendant testified that he was present at the scene where a victim was alleged to have been attacked by two men. His version of the crime was that only one man attacked the victim and that he, the second man, actually attempted to assist the victim. He further testified that when the police approached, the assailant ran and the defendant ran after him in an attempt to catch him. The prosecution on cross-examination, over objection, asked the defendant whether he thought to remain on the scene and tell the police that he witnessed the assault rather than run after the man. The question elicited a negative answer, and counsel for the government commented on this failure to make a pre-arrest statement to the police as to the alleged facts. In rejecting appellant’s contention that this was reversible error, the Court stated:

“Miranda, which was cited by appellant to support his position, prohibits comments on an accused’s failure to make an exculpatory statement after he has been arrested or is under police custodial interrogation.
“In the instant case, the objected-to cross-examination of appellant and related comments to the jury were limited to the course of action taken by appellant when he was in front of the restaurant and saw the arrival of the police. At that time he was neither under arrest nor under custodial interrogation. Such cross-examination and comjnents to the jury were proper since they related to credibility and flight of appellant.” (Footnote omitted). Id. 253 A. 2d at 538.

We hold that on the facts of this case the cross-examination and argument to the jury as to the appellant’s pre-trial silence were not impermissible comment on an inference of guilt but rather a permissible inquiry as to credibility and circumstances of flight.

2.

Appellant next argues that “[b]ecause the State failed to prove beyond a reasonable doubt that appellant deliberately, willfully, and with premeditation shot and killed Jones, the first degree murder conviction should be reversed.” We do not agree. Criminal agency of the appellant was amply demonstrated by the testimony of Johnson and McEachin which, if believed, was more than sufficient to support a first degree murder verdict beyond a reasonable doubt.

Appellant also contends the State produced no evidence that appellant had fully formed an intent to kill Jones. The Court of Appeals, in Gladden v. State, 273 Md. 383, 330 A. 2d 176 (1974), stated the elements necessary to sustain a conviction for first degree murder under Maryland Code Article 27, § 407. It stated:

“In order to sustain a conviction of murder in the first degree . . . the jury must find ‘ “the actual intent. the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate off spring of rashness and impetuous temper and that the mind has become fully conscious of its own design.” It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. . . .’ Chisley v. State, 202 Md. [87] at 106, 95 A. 2d [577] at 586 [1953], See also Hyde v. State, 228 Md. 209, 215-16, 179 A. 2d 421, 424 (1962); Cummings v. State, 223 Md. [606] at 611, 165 A. 2d [886] at 888-89 [I960]; Faulcon v. State, 211 Md. [249] at 257-58, 126 A. 2d [858] at 862-63 [1956], If the killing stems from a “choice made as a result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.” ’ Wilson v. State, 261 Md. 551, 565, 276 A. 2d 214, 221 (1971).” Id. 273 Md. at 387.

In this case the jury could have justifiably concluded that the appellant formed the intent to kill before he summoned Cookie out of the car. It could also have determined beyond a reasonable doubt an intent to kill from the firing of two shots separated by an interval of time, which has been held to be sufficient evidence of deliberation and premeditation. See: Chisley v. State, supra; Cummings v. State, supra and Wilson v. State, supra.

3.

Appellant complains that the trial court erred in denying his motion for new trial based upon newly discovered evidence. We find no error. Appellant, several weeks after the trial, produced an eyewitness who in essence repeated the stories of appellant and his girl friend. The record discloses that the trial judge concluded that the testimony of the new witness was not newly discovered evidence but “corroboration of what the jury had heard and did not believe.” The law is clear that in Maryland the grant or denial of a new trial is a matter within the sound discretion of the trial court and will not be disturbed unless there has been a clear abuse of that discretion. State v. Devers, 260 Md. 360, 272 A. 2d 794, cert. denied, 404 U. S. 824, 92 S. Ct. 50, 30 L.Ed.2d 52 (1971). Our own review of the proposed witnesses’ testimony, when tested against the rule explicated by this Court in Jones v. State, 16 Md. App. 472, 298 A. 2d 483 (1973) as to the determination of what is newly discovered evidence, convinces us that the trial court did not abuse its discretion.

4.

Relying on Newton v. State, 280 Md. 260, 373 A. 2d 262 (1977), appellant argues he was improperly convicted of and sentenced for both first degree murder and of the use of a handgun in the commission of a crime of violence. In reaching its result in Newton, the Court of Appeals grounded its decision on the required evidence test. It stated:

“Thus, under both federal double jeopardy principles and Maryland merger law, the test for determining the identity of the offenses is the required evidence test. If each offense requires proof of a fact which the other does not, the offenses are not the same and do not merge. However, if only one offense requires proof of a fact which the other does not, the offenses are deemed the same, and separate sentences for each offense are prohibited.” Id. at 268.

Applying that test, it is obvious that each of the offenses requires proof of a fact or circumstance not required by the other, thus precluding a merger.

5.

Appellant urges that the trial court committed plain error in failing to instruct the jury as to the definition of the crime of the use of a handgun in the commission of a crime of violence. No request for such an instruction was made by appellant nor was any exception taken to the trial court’s instructions. Under these circumstances, the issue is not preserved for appellate review. Maryland Rule 1085.

6.

Appellant contends he was denied the effective assistance of counsel. The alleged incompetency of trial council was not raised, tried or decided below and is therefore not presently before this Court. Maryland Rule 1085; Boswell v. State, 5 Md. App. 571, 249 A. 2d 490 (1968). This issue, if it is to be decided at all, must await a proceeding under the Uniform Post Conviction Procedure Act, Code Art. 27, Section 645A et seq. White v. State, 17 Md. App. 58, 299 A. 2d 873 (1973). We do note in passing that when the appellant was asked by the trial court whether he was satisfied with the services of trial counsel, his answer was in the affirmative. The trial court expressed his opinion that trial counsel “did a magnificent job in defending you.” Under these circumstances, we suggest that this complaint would appear to be frivolous on its face.

Judgments affirmed.

Costs to be paid by appellant.

      . It is noted that this was the first and only objection to this line of questioning.