author: Per Curiam.

text:
    DONALD LEE ROBINSON, GEORGE GENE AUSTIN, and MARGARET ANN LOTHES v. STATE OF MARYLAND
    [No. 140,
    September Term, 1968.]

      Decided January 29, 1969.

    The cause was argued before Murphy, C.J., and Anderson, Morton, Orth, and Thompson, JJ.

      Victor L. Edwards for appellant Robinson, Richard J. Hopkins for appellant Austin, and A. Parks Rasin, Jr., for appellant Lothes.

      Thomas N. Biddison, Jr., Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and William P. Fennell, State’s Attorney for Kent Coimty, on the brief, for appellee.
   Per Curiam.

Donald Lee Robinson, George Gene Austin and Margaret Ann Lothes, the appellants, complain of convictions in the Circuit Court for Kent County. Robinson and Austin were convicted of armed robbery and each was sentenced to a term of fifteen years. Margaret Ann Lothes was convicted of being an accessory after the fact and sentenced to a term of eight years. The appellants, Robinson and Austin, allege error in the failure of the trial judge to grant a severance requested by Lothes and complain of tainted lineup identifications. Appellant Lothes contends that the evidence was not sufficient to support the verdict of guilty. The evidence can be summarized as follows :

William Chauvenay, the Manager of the Seaboard Einance Company in Chestertown, testified that on January 22, 1968, at about 11:20 A.M., two Negro males came in ostensibly to apply for a loan. After being there a short time and while their credit was being checked, the taller of the two men (Austin) produced a revolver and said, “This is a hold up. Don’t do anything else.” The other man (Robinson) also pulled out a revolver. Chauvenay was directed to the bathroom along with two employees, Nancy R. Legg and Raymond L. Lusby. The robbers took $47.00 from Chauvenay, $2.00 from Lusby and $840.00 of the company’s money. Before leaving they sprayed some chemical mace on their victims. The victims had approximately ten minutes in which to observe the two robbers. Chauvenay identified Robinson and Austin at a lineup on January 26th and at the trial. He also gave a detailed description of the robbers, and identified certain exhibits consisting of clothing, a can of chemical mace, and two pistols as being similar to those of the robbers. It was brought out that Chauvenay had seen a picture of Robinson and Austin in the morning paper on the day prior to the lineup under the heading “Hit bank in Dover” but did not read the accompanying article. He immediately recognized the picture as being that of the robbers, and took it in and showed it to his fellow employees who also instantly recognized the picture as being that of the robbers.

Lusby testified and corroborated Chauvenay’s description of the events and the perpetrators. He also identified the robbers at the lineup and at the trial. Lusby had also seen the picture of the robbers but had not read the article.

Nancy R. Legg gave essentially the same account of the crime and the same description of the perpetrators as the two other witnesses. She identified Robinson and Austin in the lineup and in court as the robbers. She also saw the picture and did read the write-up prior to the lineup.

Dianne Curlett left her home in Chestertown about 11:00 A.M. on January 22nd. She noticed two Negro men drive up in front of her home, open their trunk and then walk down the street. As she was driving by the car she noticed a white girl sitting in the front seat. She positively identified Austin and most hesitantly identified Margaret Lothes at the lineup and at the trial as two of the people she had seen. She also had seen the pictures in the newspaper and read several articles prior to the lineup. She was unable to identify Robinson without the help of the pictures in the newspaper so she declined to identify him at the lineup or trial because “it was only fair.”

Trooper Robert E. Williams investigated the robbery, obtained descriptions of the suspects from the victims, and additionally of the car from Dianne Curlett. On January 25th while acting on this information he observed appellants, in a car meeting the description, proceeding south on Route 301. He stopped the car and arrested the occupants. A subsequent search revealed the clothing, chemical mace, and weapons which were described by the witnesses and which were introduced into evidence through the officer. He conducted the lineup on January 27th at which time appellants were represented by their retained trial counsel. He testified as to the witnesses’ identification of appellants at the lineup, and pictures of the lineups were introduced.

Robinson and Austin contend that the trial court committed error by denying the motion of their co-defendant, Lothes, for a severance, alleging that they, being Negroes, were prejudiced because they were forced to trial with Lothes, a white woman. Aside from the fact that there is nothing in the record to support their contention of prejudice we know of no rule that would permit them to take advantage of a motion made by a co-defendant which was based on entirely different grounds i.e. that certain evidence would be admitted at the trial of the robbers which would not be admitted in the trial of the accessory. Since Robinson and Austin made no motion to sever, under Maryland Rule 1085 there is nothing before us to review.

Robinson and Austin also contend that their lineup was unfair under United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149, Simmons v. United States, 390 U. S. 377, 88 S. Ct. 967, 19 L. Ed 1247 and under Presley v. State, 224 Md. 550, 168 A. 2d 510 but we do not agree. The record shows that the lineup was conducted strictly in accordance with the precepts of these cases. The appellants’ retained counsel was present at the lineup and the only issue presented to show the unfairness of it is that witnesses participating therein had observed pictures of the appellants in a newspaper prior to the time the lineup was held. The record, however, also shows that three of the witnesses recognized the robbers as soon as they saw their pictures in the paper; that they had ample time in which to carefully view the robbers during the holdup, and that they gave a good description of them to the police officers investigating the crime, all of which are proper factors to be considered in determining whether or not an improper lineup tainted the in-court identification. Dianne Curlett, the fourth witness, identified Austin as the person she saw near her home immediately prior to the robbery, and she most fairly stated that she was unable to identify Robinson without the help of the pictures in the newspaper and was most hesitant to make any identification at all as to Margaret Lothes. Under the circumstances of this case we do not see how the mere fact that the witnesses saw pictures of the appellants in the newspaper prior to the lineup would make the lineup unfair nor would in any way make the in-court identification inadmissible. The trial court so found and we cannot say that his ruling was erroneous. Compare Rath v. State, 3 Md. App. 721, 240 A. 2d 777.

Margaret Ann Lothes contends that the evidence was insufficient to support her conviction as an accessory after the fact. We agree. Lothes was allegedly seen near the scene of the robbery, and she was apprehended with the two robbers some three days after the robbery.

Dianne Curlett most hesitantly identified Lothes as the girl in the car, later found to belong to the robbers, which was in the vicinity of the robbery. Curlett testified that the girl in the car was curled up on the passenger side of the front seat, and that she looked tired. The girl would have been unable to observe the scene of the crime from where the car was parked. The whole tenor of Curlett’s testimony pertaining to the identification of Lothes was one of a total lack of positiveness. She described Lothes as small with a round face, dark eyes and a white or mulatto complexion; however, the record shows that Lothes was 5'7" or 8" in height with a narrow face, light hazel or green eyes, and a very white complexion. Since, Curlett’s glimpse of the girl was when she was in a curled up seated position, Curlett was only able to base her identification on the girl’s face — in particular, her eyes. The only time Curlett was positive in her identification was when the court asked her point blank if Lothes was the girl in the car; however, on further questioning by counsel she again became most hesitant.

The only other evidence to connect Lothes to the crime was that she was apprehended with the. robbers in the same car Curlett had seen some three days earlier. Various clothing and weapons used in the robbery were found in the vehicle when Lothes was apprehended.

In Watson v. State, 208 Md. 210, 117 A. 2d 549 the Court of Appeals of Maryland defined an accessory after the fact as “one who knowing that a felony has been committed, harbors and protects the felon or renders him any other assistance to elude punishment.”

Guilty knowledge may be inferred from the circumstances, see Kincer v. State, 5 Md. App. 80, 245 A. 2d 411. In the case at bar there was not enough evidence for a rational inference to be drawn that Lothes knew of the crime and thereafter aided the robbers.

“In a nonjury trial, the judge determines the weight of the evidence and the credibility of the witnesses, Sutton v. State, 2 Md. App. 639, 236 A. 2d 301; Sadler v. State, 1 Md. App. 383, 230 A. 2d 372. Indentification by the victim is enough to convict. Davis v. State, 2 Md. App. 630, 236 A. 2d 307, but if there is a lack of positiveness in the identification, this only goes to the weight not the admissibility of the evidence, Logan v. State, 1 Md. App. 213, 216, 228 A. 2d 837, and ‘the weight that should be given the testimony was for the trial court’ to decide, Dortch v. State, 1 Md. App. 173, 177, 229 A. 2d 148. The evidence as to the identification was sufficient to support the verdict. . . .” Gibson v. State, 4 Md. App. 222, 242 A. 2d 204 at 206.

Finding of trial court as to identification will only be disturbed if clear error, Gunn v. State, 4 Md. App. 379, 384, 243 A. 2d 15; see Carroll v. State, 3 Md. App. 50, 53, 237 A. 2d 535.

The equivocations of the witness were of such intensity that for the trial court to believe her identification would be clear court error, see Gunn, supra.

We think that the time lag of three days would make Lothes’ connection with the robbery too tenuous, see Burkett v. State, 5 Md. App. 211, 245 A. 2d 911.

Therefore, there was not sufficient evidence to prove the corpus delicti that she knew of the crime and thereafter aided and abetted the robbers nor was there sufficient evidence of the identity of the appellant, Lothes, as the criminal agent, cf. Price v. State, 3 Md. App. 155, 159, 238 A. 2d 275. Under Maryland Rule 1086 we find the evidence insufficient to support the judgment which, therefore, must be reversed. See Rasnick v. State, 4 Md. App. 114 at 120-21, 241 A. 2d 420 wherein we quoted the Court of Appeals in Estep v. State, 199 Md. 308, 86 A. 2d 470, 473 as follows:

“ ‘No matter how sordid the case and how suspicious the circumstances, we cannot permit a person charged with crime to be convicted without evidence. The conjectures of the trial judge might be entirely correct, and the evidence produced before him might be false in important particulars. Nevertheless, a conviction without proof cannot be sustained under the laws of this State. A man is innocent until he is proved guilty, and there must be evidence which leads to such a re-suit. Since we find there was no such evidence in this case, the judgment must be reversed.’ ”

Judgment affirmed as to Donald Lee Robinson and George Gene Austin

Judgment reversed as to Margaret Ann Lothes and case remanded for a new trial

Costs to be paid equally by Donald Lee Robinson, George Gene Austin and the County Commissioners of Kent County.

      . The State contends that there was no objection to the in-court identification but the record indicates quite clearly the objections were made and that the trial court specifically ruled on the objections.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    CARMEN D. TIDLER v. HAROLD S. TIDLER
    [No. 56,
    September Term, 1981.]

      Decided October 8, 1981.

    The cause was argued before Morton, Liss and MacDANIEL, JJ.

      Walter W. Johnson, Jr., for appellant.

      Robert S. Bourbon for appellee.
   Liss, J.,

delivered the opinion of the Court.

This is an appeal from an amended order and decree entered on November 5,1980, by the Circuit Court for Prince George’s County, Maryland, in Equity, wherein the chancellor terminated the appellant’s continuing right to support and maintenance for herself pursuant to a modified order and decree entered on July 1, 1977, in another proceeding between the parties. The amended order and decree further reduced the amount of support the appellant was receiving for three minor children from $1700 each month to $1350 each month, effective November 1,1980, and awarded appellee’s attorney a counsel fee of $1000 to be paid by the appellant.

The appellant herein, Carmen D. Tidier, and the appellee, Harold S. Tidier, are formerly husband and wife. They were married in 1959 and had four children, two of whom are still minors. On August 15, 1978, the parties were divorced by a decree entered in the Circuit Court for Prince George’s County, Maryland. The decree required appellee to continue support payments for appellant and the minor children in accordance with the provisions of a modified order and decree entered in Equity No. DR74-2958 in the Circuit Court for Prince George’s County, Maryland, on July 1,1977. That decree required the appellee to pay appellant the sum of $1400 each month for her support and maintenance and the sum of $2100 each month for support for the then four minor children of the parties.

On October 31, 1979, an order was entered in the proceeding below establishing a visitation schedule and dividing between the parties certain personal property owned jointly by them. The order also reaffirmed the support provisions contained in the modified order and decree entered on July 1, 1977, in Equity No. DR74-2958.

No further legal proceedings occurred in the court below until August 26, 1980, when the appellee herein filed a petition for order to show cause with reference to visitation. On September 15, 1980, an order to show cause was entered with respect to the petition with reference to visitation. The order scheduled the petition for hearing on October 30,1980 in the Circuit Court for Prince George’s County, Maryland. The order to show cause, by its own language, required service of the petition and order to show cause upon the appellant, Carmen D. Tidier, on or before the 1.7th day of October, 1980.

On September 19, 1980, the appellee filed a petition for modification of decree, and on September 26, 1980, an order to show cause was filed with respect to that petition. The order to show cause was scheduled for hearing on the same date as the hearing on the petition with reference to visitation. The order further required service of a copy of the petition and order to show cause upon the appellant, or her attorney, Walter W. Johnson, Jr., Esq., on or before October 7, 1980. Several letters were thereafter exchanged between counsel for the appellee and the chancellor. Counsel advised the chancellor that he was having some difficulty in obtaining service of the show cause orders on the appellant, as she had apparently relocated herself and the children to Puerto Rico. The chancellor advised counsel that in the alternative it was necessary to serve the appellant’s attorney of record, but that no attorney of record was available and therefore they should serve the orders upon the appellant in Puerto Rico by mail. Counsel for the appellee subsequently filed a certificate of service certifying that on October 8, 1980, he mailed both a copy of the show cause order to modify the decree and the show cause order with reference to visitation to Walter W. Johnson, Jr., Esq. There is nothing in the record to indicate that any attempt was made to serve the appellant in Puerto Rico by mail.

On October 30, 1980, both show cause orders were called for a hearing before the chancellor. Neither the appellant nor her attorney appeared for the hearing. Appellee acknowledged having received a letter addressed to him from the court suggesting that he attempt service upon the appellant by mail. However, appellee represented to the chancellor that the appellant was "gone for good” and that he did not know whether Mr. Johnson intended to appear on behalf of the appellant. The chancellor then asked appellee’s counsel the following question:

THE COURT: Do you want to take a teaspoonful’s worth of testimony about these things?

Counsel for the appellee then called his client to the stand, who testified with regard to the status of the older children and stated to the court that appellant had moved permanently to Puerto Rico with their children. The chancellor then asked the appellee if he knew anything about the living circumstances of the appellant, to which he replied:

Well, when she moved to Puerto Rico she sent me a letter some time after she was down there, telling me that she had moved permanently to Puerto Rico, and gave me the address down there. The address is the same address that I had for her mother and father in Puerto Rico, which is Bayamon, which is a suburb of San Juan.

Appellee conceded that he had an address for the children in Puerto Rico and stated that he had no contact with them since they left the Continental United States.

Appellee also testified that he did not think he should be required to continue to pay alimony to appellant because "she is perfectly capable of supporting herself,” and that he had been paying his wife alimony and support for six years and "that’s long enough.” No testimony was offered to show the fundamental status of the parties or to demonstrate any change in the status of the parties which would justify the appellee’s request that the payment of alimony be terminated. The chancellor then found that the evidence showed that appellant had removed herself from the home where she lived with the children and had returned to her homeland. The chancellor stated he would enter an order "relieving him [the husband] of the necessity of paying any further alimony, effective November 1, 1980.” In addition, the chancellor reduced child support payments in the amount of $350 per month on the basis that since the last order for support in the case, one of the minor children had reached the age of majority. The record is devoid of any testimony as to what support payment was necessary to provide appropriate support and maintenance for the remaining minor children. The chancellor commented that the wife "might well be in contempt” of the visitation order previously entered by the court and suggested the only way the visitation order could be enforced would be to hold up support payments for the children. In furtherance of that conclusion, the court ordered that unless the children were sent to the United States to visit with the appellee for a month during the summertime, the court would direct that two months’ payments be withheld from the support ordered by the court. Finally, the chancellor ordered appellant to pay appellee’s counsel the amount of $1000 as a contribution toward the husband’s counsel fees. He further directed that the award be entered as a judgment and be impressed as a trust upon appellant’s interest in the family home. No testimony was offered as to the husband’s ability to pay or the wife’s ability to contribute to the payment of the husband’s counsel fee.

In accordance with the chancellor’s oral rulings, an amended order and decree was submitted and signed by the chancellor on November 5, 1980, which terminated appellant’s $1400 monthly alimony payments, reduced the child support payments from $1700 per month to $1350 per month and awarded counsel fees to the husband in the amount of $1000. It is from this order that this appeal was filed. Three issues are raised for determination by this Court:

1. Did the trial court improperly hold an ex parte hearing on appellee’s petitions for visitation and for modification of the divorce decree where it was contended that appellant was never properly served and never received proper notice?
2. Did the chancellor err in entering an order terminating appellant’s prior alimony decree?
3. Has the chancellor demonstrated such hostility, bias and prejudice toward the appellant as would require him to recuse himself from any further proceedings in this case?

1.

Appellant contends that service of the two orders to show cause were never served upon her and she was therefore denied due process of law. Although it is conceded by appellant that the court had continuing jurisdiction of the subject matter of the litigation, appellant suggests that this jurisdiction did not authorize the chancellor to hold hearings on the petitions and orders which had not been served in accordance with the Maryland Rules of Procedure.

Maryland Rule 321 c provides as follows:

c. Service of Copy Exception.
A copy of a motion, together with a copy of the affidavit and each supporting paper when required, shall be served upon the party affected by such motion, or his attorney of record, pursuant to Rule 306 (Service of Pleadings and Other Papers); but this section shall not apply to a motion introduced in open court either before trial, or during the course of trial, unless otherwise ordered.

Rule 306 a 1 and 2 read as follows:

a. Pleading or Other Paper Requiring Service.
1. What Must be Served — When Required.
A pleading, notice or other paper requiring service shall be served upon the parties to the action or upon their attorneys (except when in open court the defendant shall have obtained leave to file a plea in bar orally). A copy of any exhibit attached to a pleading pursuant to section b of Rule 301 shall also be served upon the parties to the action or upon their attorneys unless otherwise ordered by the court.
2. Clerk Not to Receive Without Proof of Service.
The clerk shall not accept or file any pleading, notice or other paper requiring service other than an original pleading unless it is accompanied by an admission or proof of service of a copy thereof upon the opposite party, or his attorney of record.

It seems clear from the exchange of correspondence between the chancellor and counsel for the appellee that counsel knew that he was going to have to serve Carmen Tidier in Puerto Rico. Counsel for the appellee filed a certificate of service, certifying that on October 8,1980, he mailed a copy of the order to show cause to modify the divorce decree, together with a copy of the petition to show cause with reference to visitation, to Walter W. Johnson, Jr., Esq., the attorney who represented Mrs. Tidier in the divorce proceedings. It is admitted that none of these petitions and orders were served upon appellant. Appellant calls our attention to Rule 125 e, which provides, in pertinent part, as follows:

e. Exception.
The appearance of an attorney shall be automatically terminated, for the purpose of service upon him of any process, notice of pleading, upon the entry of final judgment from which no appeal is taken, when the time allowed for such appeal has expired.

Appellant argues that there is no evidence to indicate that Mr. Johnson was her attorney of record when the petitions and orders were mailed to him. Appellee seeks to avoid the effect of Rule 125 e by inserting into the record five letters exchanged between counsel for the parties from November 2, 1979 through August 28, 1980. All of these letters were written after the issuance of the final decree signed in September of 1978. It is clear from a reading of these letters that counsel for the appellant continued to participate actively in attempting to resolve the undetermined issues between the parties long after the execution of the divorce decree. The problem for the appellee is that none of this correspondence is properly before this court. Rule 1028 of the Maryland Rules of Procedure mandates that the record extract in a case before this Court shall be copied verbatim from the record before the. trial court. In the absence of aji appropriate order, none of the parties to a case may insert into the record extract matters which were not before the court in the trial below. See Community Realty Company, Inc. v. Siskos, 31 Md. App. 99, 354 A.2d 181 (1976). The issue as to whether Mr. Johnson was still the appellant’s counsel of record was not raised or decided below, and the letters unilaterally made a part of the record extract below were never offered or considered at the trial of this case. We may not speculate as to what the chancellor might have held if the issue and the evidence had been properly presented to him. We conclude that the letters are not properly before us, and should therefore be ignored in our decision of the issue as to whether Mr. Johnson was appellant’s counsel of record at the time service was attempted to be made on him. On the basis of the evidence properly before us, we conclude he was not. It is evident that no service was ever made on the appellant nor was any service on her ever attempted. We hold that the ex parte hearing before the chancellor amounted to a denial of due process of law in that appellant was not given appropriate notice and did not receive an opportunity to be heard before being deprived of valuable property interests awarded to her in the original divorce decree. See Griffin v. Griffin, 327 U.S. 220, 66 S.Ct. 556, 90 L.Ed. 635 (1946); Sullivan & A-l Ins. Agency, Inc. v. Insurance Commissioner of the State of Maryland & Aetna Casualty & Surety Co., 291 Md. 277, 434 A.2d 1024 (1981); Glading v. Furman, 282 Md. 200, 383 A.2d 398 (1978); State v. Greer, 263 Md. 692, 284 A.2d 223 (1971); Steed Mortg. Co. v. Arthur, 37 Md. App. 592, 378 A.2d 690 (1977); Kaplan v. Bach, 36 Md. App. 152, 373 A.2d 71 (1977); J. Whitson Rogers, Inc. v. Hanley, 21 Md. App. 383, 319 A.2d 833 (1974).

2.

Even if we had held to the contrary on the first issue presented by appellant, nevertheless, we would be required to reverse the chancellor’s amended decree. At the very beginning of the hearing the chancellor suggested to appellee’s counsel that it would be sufficient for the appellee to offer a "teaspoonful’s worth of testimony” in support of his petition for modification of the original divorce decree. However, after our examination of the record we find that the appellee failed to offer even an eyedropper full of testimony. The sole evidence offered to support the appellee’s petition was his testimony that he had paid alimony "long enough” and that he did not want "to pay anymore.”

It is well settled in Maryland that a court of equity may, upon proper petition, modify a decree of alimony or child support at any time if there is an affirmative showing of a material change in the circumstances between the parties which would justify such action. Jackson v. Jackson, 272 Md. 107, 321 A.2d 162 (1974); Stansbury v. Stansbury, 223 Md. 475, 164 A.2d 877 (1960); Winkel v. Winkel, 178 Md. 489, 15 A.2d 914 (1940); Cole v. Cole, 44 Md. App. 435, 437, 409 A.2d 734 (1979). The decision on modification of a decree is discretionary with the chancellor and will not be disturbed upon appeal in the absence of a showing of an arbitrary exercise of discretionary power or that the judgment is clearly erroneous. Lott v. Lott, 17 Md. App. 440, 302 A.2d 666 (1973). The record in this case is totally devoid of any testimony which could reasonably support any action by the chancellor in modifying the original decree. The absence of such factual information necessarily requires that we find the chancellor arbitrarily exercised his discretionary power.

We reach the same conclusion as to the award of the $1000 counsel fee to the appellee. Counsel fees should be awarded according to the ordinary factors of labor, skill, time and benefit, and the amount of the fee cannot be wholly disassociated from the financial resources of the party charged. See Waters v. Waters, 191 Md. 436, 62 A.2d 250 (1948); Quinn v. Quinn, 11 Md. App. 638, 276 A.2d 425 (1971). In determining the amount of counsel fees to be paid by the husband to the wife’s solicitor, the court should take into consideration the financial circumstances of the parties, and the final determination should be in accordance with the wife’s needs and the husband’s ability to pay. See Lopez v. Lopez, 250 Md. 491, 243 A.2d 588 (1968). This now applies with equal force to both the husband and the wife since the adoption of the Equal Rights Amendment to the Maryland Constitution [Article 46 (1978)]. The record is again devoid of any factual information which would support the chancellor’s allowance for counsel fees and we must therefore reverse.

We further direct the chancellor’s attention to the fact that the modification of the award for child support by reducing the payments by one-fourth merely because one of the four minor children attained majority is not supported by any facts in the record. As this Court has stated, in Becker v. Becker, 39 Md. App. 630, 387 A.2d 317 (1978):

We adopt the rule set out in 2 Nelson, Divorce and Annulment, [Sec. 14.91 at 127-8 (2d ed. 1961)] and hold that [the trial judge] was correct in concluding that appellant’s obligation to pay child support as provided for [in the decree] was not automatically affected by the elder child’s having attained his majority. [39 Md. App. at 634.]

The general rule as adopted in Becker, supra, found in 2 Nelson, Divorce and Annulment, supra, is stated in its entirety as follows:

In the absence of an agreement providing otherwise, the allowance for support of a child is ordinarily limited to his or her minority. However, where one monthly sum is awarded for support of several minor children during their minority, it will be considered as providing monthly payments of such sums until the youngest child has attained his majority. [39 Md. App. at 632].

The rationale behind the adoption of this rule, as stated in Becker, supra, is as follows:

The reason for considering a single amount to be paid periodically for the support of more than one child as not subject to an automatic pro rata reduction is two-fold. First, a child support order is not based solely on the needs of the minor children but takes into account what the parent can afford to pay. [citation omitted.] Consequently, a child support order may not accurately reflect what the children actually require but only what the parent can reasonably be expected to pay. To allow an automatic reduction of an undivided order would be to ignore the realities of such a situation. Second, to regard an undivided child support order as equally divisible among the children is to ignore the fact that the requirements of the individual children may vary widely, depending on the circumstances. ... [citations omitted.] [39 Md. App. at 633-34],

Under these circumstances, we conclude that there was insufficient evidence to sustain the chancellor’s modification of the order as to the reduction of child support payments and that the chancellor overstepped the bounds of discretionary power vested in him.

3.

Finally, appellant suggests that the chancellor exhibited such hostility and bias towards her so as to require the chancellor to recuse himself from any further proceedings in this case or, in the alternative, that he not be permitted to hear any future proceedings in this controversy. We have carefully reviewed the record in this case and we find no evidence to support the appellant’s allegations of bias and prejudice by the chancellor. Error does not necessarily equate with bias or prejudice, and while it is clear that the chancellor erred in several instances in his decision in this case, there is absolutely no evidence that the errors were based on bias or prejudice. We note with some degree of cynicism that while the chancellor was making substantial awards for alimony and child support in favor of the wife, over a period of years while this case was pending, she had no complaint as to the decisions of the chancellor. It was not until the chancellor made the several rulings adverse to her in this case that she perceived the existence of bias and prejudice. So far as the suggestion that the chancellor should recuse himself, that motion may be made before the chancellor upon remand. Whether or not to recuse himself is a matter within the discretion of the court, Marzullo v. Kovens Furniture Co. of Baltimore City, 253 Md. 274, 252 A.2d 822 (1969), and will not be disturbed on appeal except for an abuse of discretion.

Amended order and decree reversed, cases remanded for further proceedings not inconsistent with this opinion.

Costs to be divided between the parties.

      . We know of no decision which would authorize the withholding of child support payments as a means of enforcing visitation rights.


author: Gilbert, C. J.,

text:
    AMERICAN FEDERATION OF TEACHERS v. YALE LUBMAN et al.
    [No. 66,
    September Term, 1981.]

      Decided October 9, 1981.

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

      Joel A. Smith, with whom viere Jeffrey H. Scherr and Abato & Abato, P.A. on the brief, for appellant.

      Stephen M. Silvestri, with whom were Gil A. Abramson and Semmes, Bowen & Semmes on the brief, for appellees.
   Gilbert, C. J.,

delivered the opinion of the Court.

INTRODUCTION—

This appeal is the outgrowth of an attempt by some of the membership of the Classified Municipal Employees Association of Baltimore City, Inc. (CMEA) to affiliate with the American Federation of Teachers (AFT).

Claiming that the affiliation, as accomplished, was illegal, seven members of the CMEA brought an action in the Circuit Court of Baltimore City for declaratory and injunctive relief against CMEA. On motion, AFT was permitted to intervene as a party defendant.

Following a trial on the merits, CMEA and AFT appealed to this Court. Subsequently, CMEA voluntarily dismissed its appeal with the result that AFT stands as the sole appellant.

THE FACTS —

CMEA is a labor association organized as a Maryland non-stock corporation. The organization consists of about 4500 employees of the Mayor and City Council of Baltimore, and it is empowered by its charter to improve the working conditions of its members and to represent its members in all matters regarding employment.

Prior to November 4,1980, CMEA was not affiliated with any other labor organization, although for approximately one year before that date, members of the CMEA had been negotiating with AFT regarding possible affiliation. "[A] tentative affiliation agreement with AFT” was presented on August 15, 1980, at a general membership meeting. The proposed affiliation with AFT was defeated by the membership.

At the time of the August 15 meeting, the by-laws of CMEA provided that affiliation could be effected by approval of a majority vote of the Board of Governors, the By-Laws Committee, or the Council, after which it was necessary to obtain a ratification of two-thirds of the members attending a regular or special meeting of the association.

Notice of the meeting and the intent to affiliate was required to be published in the Hall Light (the CMEA news-letter) or mailed to members individually at least two weeks before the meeting. After the August 15, 1980, meeting, there were attempts to amend the by-laws pertaining to affiliation.

At a special general membership meeting on October 15, 1980, an attempt to amend the by-laws again failed. Seemingly undaunted by the membership’s rejection, the Board of Governors called for another special general membership meeting to be held on November 4, 1980, for the purpose of amending the by-laws. Due notice of the meeting, together with a copy of the proposed amendments to the by-laws, was mailed to the membership on October 25, 1981.

The results of the November 4 meeting of the CMEA concerning the by-law dealing with "affiliation” is the nub of this appeal. The evidence shows that the proposed by-laws change was brought before the membership by Mr. Gilbert Selden, the chairman of the By-Laws Committee. The amendment relative to "affiliation” was read to the members who were in attendance. The amendment provided:

"ARTICLE II
Purposes and Methods
Section C. Affiliation — Whenever the Board of Governors in its opinion deems it beneficial to the Classified Municipal Employees Association to affiliate with another employee organization, it shall initiate and conduct negotiations with such organization concerning affiliation. Final action to affiliate must be ratified by a majority vote of the members.”

The effect of the Selden amendment was to change the vote necessary to affiliate with another group. The "old” by-law called for approval by two-thirds of the members in attendance. The amendment provided for a simple majority of the members, present or not.

Following Mr. Selden’s presentation, "oral amendments” were offered by Mr. Stanley Walpert. The Walpert amendments in essence would have changed the requirement for approval of affiliation from a majority of the entire membership to a majority of the members present.

It is apparent from the record that the membership meeting became confused. Various motions were offered to stop any attempt to amend the by-laws. The evidence reveals, however, that the proposed by-laws as modified by the Walpert amendments were passed by a vote of 78 to 38.

Having achieved the necessary numbers to change the by-law, the agenda was then amended to include a vote on a proposal to affiliate with AFT. The motion to affiliate was, not unexpectedly, passed, and the next day, November 5, 1980, CMEA signed an affiliation agreement with AFT.

The appellees sought relief in equity by way of a declaratory judgment and an injunction.

The court issued an ex parte order that enjoined any transfer of funds from CMEA to AFT and also proscribed any action in furtherance of the affiliation agreement.

After a hearing on the merits, Judge Joseph H. H. Kaplan issued a "Memorandum Opinion and Order” in which he declared inter alia that the affiliation agreement was null and void because the Walpert amendments were improperly considered, voted upon, and passed at the November 4 meeting. The result of the invalidity of the Walpert amendments is that the amendment providing for a majority vote of the entire membership in order to ratify any affiliation is still viable.

MOTION TO DISMISS —

Ere we turn our attention to a discussion of the merits, we must consider the appellees’ motion to dismiss AFT’s appeal.

Appellees argue initially that the appeal should be dismissed because AFT lacks standing, and that the issues have become moot upon the withdrawal of CMEA from the appeal. We disagree.

Were the law as the appellees seem to view it, the intervenor’s fate would be contingent upon a party’s willingness or not to appeal. If the party, for whatever reason, elected to abide by the result of the trial, the intervenor’s rights would be foreclosed. That is not the state of the law of this State.

The Court of Appeals has made clear that when a court permits intervention, the intervenor has all the rights of a party. " 'By the very definition of ' "intervention” ’ the intervenor is a party to the action. After intervention he is as much a party to the action as the original parties, and to make his rights effectual he must necessarily have the same power as the original parties, subject to the authority of the court reasonably to control the proceedings in the case.’ 59 Am. Jur. 2d Parties § 177 (1971).” Montgomery County v. Supervisor of Assessments, 275 Md. 58, 62-63, 337 A.2d 679 (1975).

This Court, in Montgomery County v. Meany, 34 Md. App. 647, 650, 368 A.2d 1107, 1109 (1977), said, "As an intervenor has all the rights as a party and a party has the right to appeal, [the intervenor] has the right to appeal.”

The holdings of Montgomery County v. Supervisor of Assessments, supra, and Montgomery County v. Meany, supra, when syllogized appear as follows:

A is a party litigant and may appeal an adverse decision.
I is an intervenor with the same rights as A.
I may appeal.

The motion to dismiss the appeal is without merit, and it will be denied.

THE MERITS —

Appellant posits three issues to this Court. We shall, however, reduce that number to one basic question, videlicet: were the Walpert amendments properly considered and voted upon at the meeting held on November 4, 1980?

CMEA’s by-laws provide that no amendment to a by-law may be voted upon unless two prerequisites are satisfied: 1) the proposed by-laws must be approved by either the By-Laws Committee, the Board of Governors, or the Council, and 2) the proposed amendment must either be published in the Hall Light or mailed to individual members at least ten days prior to the meeting. The by-laws further provide that "Roberts Rules of Order shall govern the proceedings of this Association in all cases to which they are not inconsistent with these By-laws.” (Emphasis supplied.)

AFT strenuously argues that the propriety vel non of the Walpert amendments should be determined by Roberts Rules of Order, § 56, which provides that when extensive changes in by-laws constituting a "revision” are offered, "the assembly is not confined to consideration of only the points of change included in the proposed revision.”

The trial judge determined that the CMEA by-laws prevailed over Roberts Rules in this case because the by-laws express the clear intent of the drafters that notice be given of any by-law amendments. "By-laws are construed under principles governing the construction of... contracts, primarily to effectuate the parties’ intent.” 18 C.J.S. Corporations § 183, p. 594 (1939).

The court found that inasmuch as the Walpert amendments were introduced without prior notice to the membership, they were improperly introduced and voted upon at the meeting of November 4,1980. The committee’s proposed by-laws providing for a majority vote of the membership to approve an affiliation, as we have said, were properly adopted. That being the situation, the affiliation motion failed because it was not passed by a majority of the membership.

Contrary to the way AFT sees it, a determination by a lower court with respect to the intention of the parties is a factual finding which an appellate court will not set aside unless it concludes that those findings were clearly erroneous. Md. Rule 1086; Dinges v. Dinges, 43 Md. App. 50, 402 A.2d 1321 (1979). We are unable to so conclude in this case.

Motion to dismiss denied. Judgment affirmed.

Costs to be paid by appellant.

      . The By-Laws Committee consisted of five members appointed by the president in accordance with the provisions of the by-laws.

      . In pertinent part, the by-laws in effect on August 15, 1980, read:
      "ARTICLE X
      Amendments to By-Laws
      Section A — Amendment Procedures — The By-Laws can be amended at any general or special general meeting of the Association by a two-thirds vote of those attending members provided the proposed amendment has been approved by either a majority vote of the By-Laws Committee, the Board of Governors or the Council. After a proposed by-law amendment has been approved, said amendment shall be forwarded to the President of the C.M.E.A. who shall cause said proposed amendment to be placed on the agenda of the next general or special general meeting provided that said amendment has fírst been published in the Hall Light or mailed individually to members at least ten (10) days prior to said meeting....” (Emphasis supplied.)

      . Although there were extensive amendments to the by-laws proposed, the only section at issue here is the affiliation process, so it is the only one we shall discuss.

      . See n. 1, supra.

      . In addition, 427 members voted by proxy for approval. While appellees disputed the proxies voted at trial, those votes are not at issue in this appeal.

      . The appellees are: Yale Lubman, Veri Sexton, Dorothy V. Judy, David Koenigsberg, Rayan Danko, Howard C. Clemm, and Laray Brown, all members of the CMEA.

      . The provision for amending the by-laws of the CMEA is clear, direct, specific, and concise. We perceive no reason to address the appellant’s argument that the trial "court’s principal finding seriously undermines the right of shareholders or members to participate in the governance of business corporations.” We note, however, that the trial court did not do any such thing. On the contrary, it assured that the rights of all the members were protected.

      . By-Laws, Article XV.


author: Wilner, J.,

text:
    JORGE SANTIAGO, JR. v. STATE OF MARYLAND
    [No. 92,
    September Term, 1981.]

      Decided October 9, 1981.

    The cause was submitted on briefs to Mason, Wilner and Couch, JJ.

      Submitted by Donald Daneman and William B. Purpura for appellant.
    Submitted by Stephen H. Sachs, Attorney General, Michael A. Anselmi, Assistant Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and William R. Roessler, Assistant State’s Attorney for Anne Arundel County, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant was convicted in the Circuit Court for Anne Arundel County of possession of cocaine, for which he was fined $2,500 and placed on five years probation. His sole complaint in this appeal is that the cocaine in question and certain other incriminating items were discovered and seized unlawfully and should have been suppressed as evidence.

The search and seizure occurred at Baltimore-Washington International Airport. At about 8:30 a.m. on May 19, 1980, appellant attempted to pass through the security screening unit at Pier C, leading to the aircraft boarding areas. In accordance with standard and familiar procedures, he surrendered a piece of hand luggage for x-ray inspection. As the luggage passed through the machine on the conveyor belt, the security officer operating the machine — one Warren Jordan — observed in the x-ray scope a dark object that he was unable to identify. He immediately requested his assistant, Roberta Florey, to inspect the bag.

Mrs. Florey also saw the bag under the "scope,” and she too noticed large, dark, unidentifiable objects. When the bag emerged from the machine, she put it on the table, where appellant identified it as his.

Mrs. Florey told appellant that she would have to look in the bag, to which he replied "okay” and proceeded to unlock it. She then opened the bag and began to search through it, in the course of which she discovered a box. Without objection from appellant, she opened the box and saw a large sum of money. She did not recall seeing anything else in the box. Becoming "suspicious,” she handed the box to Maryland State Trooper Vernon Sarro, who, as part of the airport security team, was standing nearby. There is no indication in the record that appellant objected to this transfer.

Sarro had observed the search conducted by Mrs. Florey. He looked into the open box and saw not only the money but three other objects as well — a clear see-through "baggie” containing a white powdery substance, an opaque film cannister, and a dark brown bottle containing a powdery substance. Sarro, who had had some police training in the identification of controlled dangerous substances, who had been on the State police force for nine years, and who, as a resident trooper in Carroll County, gave "talks” on controlled dangerous substances, immediately concluded (correctly, as it turned out) that there was indeed contraband in the box, whereupon he detained and ultimately arrested appellant.

Appellant does not contest the reasonableness of the x-ray examination of the luggage, or the cursory search made by Mrs. Florey. What he complains about is the handing over of the box to Trooper Sarro and the search and seizure made by him. We find no error.

Whatever may have been the case before "skyjacking” became popular either as gainful employment or as a form of political protest, airport searches such as that conducted here are, by now, generally regarded as permissible under the Fourth Amendment.

The use of airport searches as part of a program to eliminate air piracy began in 1968. From a statistical study of the behavioral characteristics of known hijackers, a "profile” of the potential hijacker was developed. A selective screening process, based upon that "profile,” was then instituted. That early process, as described in Ingram, Are Airport Searches Still Reasonable? 44 J. Air Law & Com. 131,134 (1978), was essentially as follows:

"[A]irline employees, such as ticket agents, applied the profile to passengers entering the airport. Those passengers fitting the profile were designated 'selectees’ by the employees, and this information was forwarded to airline personnel at the boarding gate, usually by distinctive markings upon the selectee’s ticket or boarding pass. Upon the selectee’s arrival at the boarding gate, he was required to pass through a metal detector with his carry-on baggage. If the metal detector indicated the selectee was carrying an amount of metal equal to the mass of a small handgun, the airline employee on duty at the gate stopped him and requested identification. If satisfactory identification was not presented, a United States Marshal was summoned, and identification was requested again. If the selectee still refused or was unable to present satisfactory identification, he was requested to pass through the metal detector a second time. A second indication of metal on the person or in the baggage of the selectee provoked a request for submission to a voluntary 'pat-down frisk.’ The selectee’s carry-on baggage was also searched. If at any point in this procedure the selectee passed a particular test, further investigation was foregone and he was allowed to board the airplane.” (Footnotes omitted.)

See also United States v. Davis, 482 F.2d 893 (9th Cir. 1973).

By September, 1971, the FAA concluded that the selective screening program had not proved adequate. New regulations were therefore adopted in February, 1972, requiring that the air carriers screen all passengers on reservation flights. The screening process itself, however, was somewhat flexible. Though not spelled out in the regulation (see 41 C.F.R. § 121.538 (1973)), the FAA permitted the screening to be accomplished "by one or more of the following systems: behavioral profile, magnetometer, identification check, physical search.” See 3 LaFave, Search and Seizure 330 (1978) quoting FAA Press Release No. 72-76 (February 6, 1972). That too proved insufficient; hijackings continued such that by January 5,1973, all passengers on all flights in the United States were required to undergo metal detector screening and inspection of carry-on baggage before being allowed to board the airplane.

Predictably, the courts were soon called upon to consider the constitutionality of these increasingly pervasive intrusions. Almost without exception, they have determined that passenger searches and searches of luggage sought to be taken aboard commercial aircraft are "reasonable” (and thus permissible) if conducted in accordance with the rules and procedures adopted or required by the Federal Aviation Administration. See, for example, United States v. Edwards, 498 F.2d 496 (2d Cir. 1974); United States v. Skipwith, 482 F.2d 1272 (5th Cir. 1973); State v. White, 549 P.2d 600 (Ariz.App. 1976); People v. Hyde, 524 P.2d 830 (Cal. 1974); People v. Dooley, 134 Cal.Rptr. 573 (Cal.App. 1976), all involving luggage searches; and see United States v. Bell, 464 F.2d 667 (2d Cir.), cert. den. 409 U.S. 991 (1972); United States v. Epperson, 454 F.2d 769 (4th Cir.), cert. den. 406 U.S. 947 (1972), involving personal searches. But see People v. Sortino, 325 N.Y.S.2d 472 (Sup.Ct. 1971) (search held unconstitutional in absence of probable cause).

Although in agreement as to the end result — the validity of searches conducted in accordance with FAA regulations — the courts have been unable to reach a consensus on a proper rationale for such searches, other than the pragmatic need for them. See generally, Weinstock, The Airport Search and the Fourth Amendment: Reconciling the Theories and Practices, 7 UCLA-Alaska L. Rev. 307 (1978).

The United States Courts of Appeal for the Second and the Seventh Circuits initially upheld warrantless airport searches on the basis that activation of hijacker detection devices produces sufficient articulable suspicion to justify a weapons search under the standards established in Terry v. Ohio, 392 U.S. 1 (1968). See United States v. Bell, supra, 464 F.2d 667; United States v. Fern, 484 F.2d 666 (7th Cir. 1973). That type of analogy did not find favor among the other circuits, however, and, with the advent of the newer FAA regulations requiring the indiscriminate screening of all passengers and all carry-on luggage, even the Second Circuit has discarded it in favor of a more general reasonableness standard. See United States v. Edwards, supra, 498 F.2d 496.

In contrast, the Ninth Circuit and State courts in California and Arizona have upheld the screening of airline passengers and their carry-on luggage on the ground that they are akin to the administrative searches upheld in Camara v. Municipal Court, 387 U.S. 523 (1967). The Fifth Circuit has given airport searches the green light by analogizing them to "border” searches, treating the aircraft boarding area as a type of "critical zone,” justifying a search upon "mere suspicion.” See United States v. Moreno, 475 F.2d 44 (5th Cir.), cert. den. 414 U.S. 840 (1973), and United States v. Skipwith supra, 482 F.2d 1272.

Regardless of the approach taken, the courts which have ruled on the matter have, in the end, engaged in a balancing of governmental versus individual interests; and through that balancing process, nearly all have reached the conclusion that in light of the potential consequences of aircraft hijacking, the intrusion into protected rights by a search reasonable in scope is more than counterweighed by the government’s legitimate interest in preventing such harm. See United States v. Davis, supra, 482 F.2d at 910 (administrative search theory); United States v. Edwards, supra, 498 F.2d at 500 (general reasonableness theory); United States v. Skipwith, supra, 482 F.2d at 1275 (border search analogy); United States v. Bell, supra, 464 F.2d at 673-74 (Terry rationale). As stated by Judge Friendly concurring in Bell at 675, and subsequently for the Court in Edwards, supra, 498 F.2d at 500:

"When the risk is the jeopardy to hundreds of human lives and millions of dollars of property inherent in the pirating or blowing up of a large airplane, the danger alone meets the test of reasonableness, so long as the search is conducted in good faith for the purpose of preventing hijacking or like damage and with reasonable scope and the passenger has been given advance notice of his liability to such a search so that he can avoid it by choosing not to travel by air.” (Emphasis supplied.)

Appellant, as we have said, does not contest the electronic intrusion or even the manual search by Mrs. Florey, but only the ultimate search (and seizure) by Trooper Sarro. The rationale underlying the initial intrusion is equally relevant to the search conducted by Trooper Sarro, however. As pointed out in United States v. Bell, supra, 464 F.2d at 674, the object of these searches is not just the "conventional weaponry of the bank robber or of the burglar.” A skyjacker’s arsenal may just as well include gunpowder or other explosive substances, perhaps in relatively small quantities concealed in innocuous-looking containers. See also United States v. Moreno, supra, 475 F.2d at 49: "[M]odern technology has made it possible to miniaturize to such a degree that enough plastic explosives to blow up an airplane can be concealed in a toothpaste tube.”

Since the detection of these deadly, but easily concealable, substances is the very rationale for the search to begin with — that which makes even the initial intrusion reasonable — it necessarily follows that the search may properly continue into packages and containers, such as the box in question, which cannot otherwise be clearly identified as harmless. Although Mrs. Florey said that she did not see anything in the box but the money, she did not say (or imply) that the box was otherwise empty. She handed it to Trooper Sarro for further inspection because she was suspicious. She was not, in other words, satisfied that the box was harmless; and that lingering doubt or suspicion, in our view, sufficed to justify some additional investigation by Sarro. See People v. Hyde, supra, 524 P.2d 830 (upholding search of carry-on luggage and shaving kit contained therein); People v. Bleile, 118 Cal.Rptr. 556 (Cal.App. 1975) (inspection of carry-on luggage and laundry bag contained therein held reasonable); and cf. United States v. Cyzewski, 484 F.2d 509 (5th Cir. 1973), cert. dismissed 415 U.S. 902 (1974) (inspection of checked luggage and laundry bag within held reasonable).

Having decided that the search in question was reasonable within the meaning of the Fourth Amendment, it is unnecessary for us to consider the additional questions of (1) whether, based on the evidence in this record, appellant waived any objection to the search by manifesting an actual consent to it; (2) whether, given the widespread knowledge of airport security measures, the clear posted warnings of such, and the avoidability of the intrusion by simply not proceeding beyond the checkpoint, appellant impliedly consented to the search; (3) whether, given the same factors, persons attempting to pass through security checkpoints can have any reasonable expectation of privacy in regard to the contents of their carry-on luggage; or (4) whether, in light of Sarro’s testimony that the contraband was in plain view when he first looked into the already open box, the "search” is sustainable under the "plain view” doctrine.

We find no error in the admission of the contested evidence.

Judgment affirmed; appellant to pay the costs.

      . At trial, it was established that the box contained $28,500.

      . Current FAA regulations require the airlines to adopt and put into use a screening system "designed to prevent or deter the carriage aboard its aircraft of any explosive or incendiary device or weapon in carry-on baggage or on or about the persons of passengers....” 14 C.F.R. § 121.538(B) (1980). Moreover, the airlines must "refuse to transport ... (2) any property of any person who does not consent to a search or inspection of that property in accordance with the screening system prescribed by paragraph (B) of this section.” 14 C.F.R. § 121.538(E) (1980).

      . As the Court in United States v. Davis, supra, 482 F.2d at 906, explained: "In Terry... the Court went to great pains to make clear that the officer’s right to conduct such a search of an individual depends upon the officer’s possession of specific, articulable facts sufficient to satisfy a reasonably prudent person that the particular individual is in fact armed and dangerous.” Obviously, this requirement cannot be satisfied when searches are conducted indiscriminately. See also Weinstock, supra, 7 UCLA-Alaska L. Rev. at 319-20.

      . See United States v. Davis, supra, 482 F.2d at 908:
      "[S]earches conducted as part of a general regulatory scheme in furtherance of an administrative purpose, rather than as part of a criminal investigation to secure evidence of crime, may be permissible under the Fourth Amendment though not supported by a showing of probable cause directed to a particular place or person to be searched.
      "As we have seen, screening searches of airline passengers are conducted as part of a general regulatory scheme in furtherance of an administrative purpose, namely, to prevent the carrying of weapons or explosives aboard aircraft, and thereby to prevent hijackings. The essential purpose of the scheme is not to detect weapons or explosives or to apprehend those who carry them, but to deter persons carrying such material from seeking to board at all.”

        See also State v. White, supra, 549 P.2d 600; People v. Hyde, supra, 524 P.2d 830.

      . The danger presented by explosive devices being carried aboard aircraft is, of course, apparent; and, as we have noted, it is that danger which has been held to justify the otherwise impermissible intrusion into the personal effects of passengers. Quaere: could the ingestion of controlled dangerous substances, such as hallucinogens, aboard an aircraft in flight also present such a danger to the public safety as to justify their detection and exclusion upon the same rationale? That is a question we need not decide in this case.

      . The courts are split on the question of whether the implied consent rationale is a proper basis for upholding the validity of airport searches. Compare United States v. Freeland, 562 F.2d 383 (6th Cir.), cert. den. 434 U.S. 957 (1977); United States v. Williams, 516 F.2d 11, 12 (2d Cir. 1975) (per curiam); United States v. Doran, 482 F.2d 929, 932 (9th Cir. 1973) (accepting implied consent rationale) with United States v. Albarado, 495 F.2d 799, 806-07 (2d Cir. 1974); United States v. Kroll, 481 F.2d 884, 886 (8th Cir. 1973) (rejecting implied consent rationale).

      . The notion that the pervasive knowledge of airport security measures, not to mention the ubiquitous signs warning of such, reduces any expectation of privacy concerning the contents of carry-on luggage has not been well accented, at least in the earlier cases. See United States v. Davis, supra, 482 F.2d at 905; People v. Hyde, supra, 524 P.2d at 833, n. 4. See also Weinstock, supra, 7 UCLA-Alaska L. Rev. at 333. Whether that view would prevail today, when the "universal” search, as opposed to selective searches of "profile” candidates, has become so commonplace and expected, is not altogether clear.

      . As a final fitting note, we quote this passage from United States v. Skipwith, supra, 482 F.2d at 1278:
      "Although the discovery of cocaine in a search for weapons may be unexpected by the government, there is nothing in the Constitution that gives the apprehended felon a right to complain because the product of the protective action was not anticipated. Such a result cannot properly be classified as a windfall. It is the product of valid police work. The government has no duty to catch a carrier of dope sportingly or according to any game book rule. Nor is it material whether the circumstances leading to the discovery of the cocaine were of the defendant’s making; all that matters is that the search be legally conducted.”


author: Couch, J.,

text:
    JOHN SWAIN v. STATE OF MARYLAND
    [No. 94,
    September Term, 1981.]

      Decided October 9, 1981.

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

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

      Philip M. Andrews, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and Barry Hamilton, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

John Swain was charged by indictment filed November 16,1979, with premeditated murder and use of a handgun in the commission of a felony. He pleaded not guilty and not guilty by reason of insanity, and elected a jury trial. The trial commenced on July 28, 1980 in the Circuit Court for Montgomery County.

On August 6,1980, the jury found Mr. Swain to have been sane at the time of the offense, and to be guilty of murder in the first degree and use of a handgun in the commission of a felony. He was sentenced to consecutive terms of life imprisonment for murder and five years imprisonment for the handgun offense.

On appeal, Mr. Swain, the appellant, presents the following questions:

1. Did the hearing court err in refusing to suppress evidence obtained from appellant as a result of his arrest, which was effected in violation of the District of Columbia Fresh Pursuit Statute?
2. Did the hearing court err in holding that appellant’s merely telling one police officer that he understood the Miranda rights previously given by another officer constituted an effective waiver of those rights?
3. Did the trial court err in permitting the State to use a medical treatise in the direct examination of its psychiatric expert?
4. Did the trial court err in allowing the State’s psychiatric expert to give opinion testimony that was based in part upon conclusions drawn by an uncertified psychologist?
5. Did the trial court erroneously instruct the jury on the element of malice?

For the reasons set forth in this opinion we hold that the lower court did not err in its actions and rulings, and we affirm the lower court’s judgment.

The Facts

At approximately 5:30 to 5:45 in the morning of October 25, 1979, Anne Delores Logan was shot five times at close range while she drove on Connecticut Avenue in Chevy Chase, Maryland, a short distance from the Maryland-District of Columbia border. Her 1978 Thunderbird veered off the road and crashed into a tree located in an adjacent park. She died before she could be moved to a hospital.

At this same time, Alec Armbrister prepared to begin his paper route. He was walking along Newlands Street between Connecticut Avenue and Brookville Road when he heard noises sounding like a car backfiring five or six times. He then saw Ms. Logan’s car traveling north on Connecticut Avenue, and watched the car as it crashed off the road. Mr. Armbrister entered the small park by jumping over a fence, and he saw a man approach him from the wrecked car.

To Mr. Armbrister’s question, "What should I do?”, the man replied, "Go and see if the lady was all right.” The man also indicated that he would call an ambulance, and then he ran out of the park. Although the morning was still dark, Mr. Armbrister saw that the man in the park was a black male, about six feet tall, not muscular, 165-170 pounds, in his early to mid-thirties, with a low bush-style haircut, and wearing all black clothes, including a black jacket.

Going to the car, Mr. Armbrister saw its occupant, a black woman, slumped over. Immediately thereafter police officers arrived, and requested that the witness write notes concerning what he had seen. He was also informed that the woman he had seen had been shot.

During this time, a second paper boy, Giles Sommerville, was walking along Brookville Road when he heard sirens coming from the direction of Connecticut Avenue. As he reached the intersection with Quincy Street, a man entered the intersection from Quincy. This man nodded as he walked by, responding to Mr. Sommerville’s salutation, and then turned north on Brookville Street. Mr. Sommerville described him as a black man, age 25-30 years old, about five eleven to six feet tall, skinny, with close-cut hair, sideburns, and wearing a dark vest, and dark blue trousers.

The initial report of Ms. Logan’s car crash reached the Montgomery County Emergency Operations Center (EOC) at 5:39 A.M. The crash was reported as an accident by a member of the Herndon React. Police officers arrived at the scene by 5:42 A.M., according to EOC records, and quickly reported that a black man had been in the car with Ms. Logan, and had been seen running eastbound, down Melrose from Connecticut.

Following notification by medical personnel at the crash site that Ms. Logan had suffered multiple gunshot injuries, at approximately 5:54 a police officer requested that the radio dispatcher, "Call the Bethesda Station and have an officer on this shift get everyone out of the station they can spare and have them converge on the area down here.”

By 6:03 A.M. the police were informed by radio that they had "official permission to work two or three blocks into D.C.” The officers were also told that Ms. Logan had died, and that her death appeared to be by homicide (Code 0-100). As officers questioned Mr. Armbrister and Mr. Sommerville, descriptions of the homicide suspect were broadcast. The initial description, provided at 6:10 A.M., described a black male, over six foot, wearing dark clothes, and possibly wearing a hat. A subsequent broadcast, based on Mr. Sommerville’s questioning, indicated that the suspect was:

"A Negro male, skinny, 5'11"-6'0", black pants, solid black vest-type jacket, there’s a white line in it, and last seen on Brookville, and he’s going to be northbound.”

Having heard the initial description of the suspect, police officers detained a black male who was walking across Western Avenue, and who was wearing a green Army jacket. The officers reported that they did not believe that he was their suspect, but they did not release him until Mr. Armbrister saw him and confirmed their belief. The Montgomery County Police then continued in their efforts to find the homicide suspect.

One of the participating police officers was Officer Linda Krieger, a four-year veteran assigned to the Bethesda station. Officer Krieger had worked the 10:00 P.M. to 6:00 A.M. shift on a stake-out detail in the Friendship Heights business district, which is near the crime scene. She worked alone, in plain clothes, and drove an unmarked van equipped with a police radio. As she prepared to go off duty she heard the first radio communications regarding the wrecked automobile on Connecticut Avenue. Being aware of only a reported personal injury accident, Officer Krieger continued to unload her van at the Bethesda station, while she monitored the police broadcasts.

Following the subsequent reports of Ms. Logan’s shooting, that a black male was seen running from the car and that the incident was designated as an "0-100, which is a murder,” Officer Krieger drove her police van into the District of Columbia.

As she drove, Officer Krieger continued to receive information regarding the murder suspect from the investigating officers who had questioned the eyewitnesses. She arrived at the site in the District of Columbia where Montgomery County officers had stopped the man wearing a green Army jacket, and she learned of the updated description of the suspect by 6:20 A.M.

Officer Krieger then drove northbound, back towards Western Avenue, which divides Maryland and the District of Columbia. At the corner of Broadbranch and Rittenhouse, which is in the District of Columbia, she saw someone who matched the suspect’s description as he appeared near a well-lit bus stop. She saw no other pedestrians in the entire area.

From a distance of fifty feet Officer Krieger did not recognize the suspect. The man did not remain standing on the sidewalk, however, but crossed in front of the police van. Officer Krieger then recognized the suspect as John Swain, the appellant, who worked as a mechanic at a local Chevron station. Mr. Swain had previously serviced Officer Krieger’s car, and they had frequently seen each other when she stopped at the Chevron station wearing her uniform on duty.

As Mr. Swain approached the driver’s side of her van, Officer Krieger called to him by name. He responded by asking, "You are looking for me, aren’t you?” Officer Krieger responded, "Yes,” because, as she later testified, she knew of an outstanding warrant or criminal summons for Mr. Swain’s arrest in a different matter, and because she knew that he fit the description of the homicide suspect.

Concerning their subsequent conversation Officer Krieger stated:

"I said, 'Are you hurt?’ Prior to this, the radio transmissions earlier were that the subject might have hit the windshield and may have had some head injury, so I asked him if he was hurt, and I think he said, 'No,’ and then I said something to the effect of, 'Get in the car,’ and just before that he said, 'Is she dead?’ I either said, 'Yes,’ or T don’t know.’ And then he walked across the front of the van to get in, and I unlocked the door to let him in....
[ 0 ]nce John got in the van, he put up his hands, and he said, T don’t have a gun.’ I said, 'Where is it for my benefit and my safety?’ He said, T threw it down the hill and I ran.’ I said, 'Near the car?’ meaning near the accident, and he said, 'Yeah,’ and I said, 'Don’t tell me anymore right now. I will ask you again later,’ and then I patted him down, and I said, T am going to have to cuff you.’ He said, 'Yeah, I know.’
He said, something to the effect of, 'Don’t let them hurt me,’ or 'Stay with me.’ I told him not to worry, that everything would be okay, and we would get it all straightened out.”

At 6:31 A.M., while John Swain walked toward the passenger side of the van, Officer Krieger radioed that she had "the suspect in custody.” She drove to Western Avenue and Broadbranch and was met by Montgomery County officers who brought the eyewitnesses for a show-up with Mr. Swain, and by District of Columbia police who were then "maintaining control of him.” He was taken into custody by detectives of the Second District Metropolitan Police Department, but returned to Montgomery County that evening following a waiver of extradition.

Additional facts concerning the case will be presented with the discussion of the issues.

I. Fresh Pursuit

The appellant, John Swain, filed a pretrial motion to suppress evidence obtained in connection with his arrest. He contended at the pretrial hearing that his arrest occurred in violation of the District of Columbia Fresh Pursuit Act, D. C. Code §§ 23-901 through 23-903 (1973).

Section 23-901 of this act authorizes:

"Any member of a duly organized peace unit of. any State (or county or municipality thereof) of the United States who enters the District of Columbia in fresh pursuit and continues within the District of Columbia in fresh pursuit of a person in order to arrest him on the ground that he is believed to have committed a felony in such State shall have the same authority to arrest and hold that person in custody as has any member of any duly organized peace unit of the District of Columbia to arrest and hold in custody a person on the ground that he is believed to have committed a felony in the District of Columbia. This section shall not be construed so as to make unlawful any arrest in the District of Columbia which would otherwise be lawful.”

Section 23-903 defines the term "fresh pursuit”, stating:

"For purposes of this chapter, the term 'fresh pursuit’ shall include fresh pursuit as defined by the common law, also the pursuit of a person who has committed a felony or one whom the pursuing officer has reasonable grounds to believe has committed a felony. It shall also include the pursuit of a person whom the pursuing officer has reasonable grounds to believe has committed a felony, although no felony has actually been committed, if there is reasonable ground for believing that a felony has been committed. Such term shall not necessarily imply an instant pursuit, but pursuit without unreasonable delay.”

Applying this definition to the facts presented at the pretrial hearing, the hearing judge ruled that Mr. Swain was lawfully arrested. The judge stated that:

"As to the fresh pursuit, considering the totality of the circumstances here, and in reviewing the law that I have been supplied with, I am satisfied that this is certainly fresh and certainly I can’t believe that in order for it to be a pursuit, that it is necessary that a police officer initially see the alleged suspect in one area and follow him across the line into another area.
There are certainly circumstances as we have here that because of police communications, that Officer Krieger got information that I guess she was pursuing once she got down in D.C., and she knew who she was looking for. And much to his regret, she found him. I am satisfied that this was fresh pursuit as envisioned by the D.C. statute, and that she had probable cause when she found Mr. Swain in D.C. some two, or three, four blocks from the D.C. line to arrest him.”

On appeal Mr. Swain renews his challenge of the legality of his arrest. He submits that when the Montgomery County Police obtained permission to enter the District, until the moment of the arrest by Officer Krieger, she and her fellow officers were not in "pursuit” of anyone. Rather, the appellant contends, the police were only conducting a search.

The appellant distinguishes a pursuit from a search in that a pursuit connotes the chasing of an object which has already been discovered and a search precedes its discovery. In response, the State calls the appellant’s criterion "an artificial distinction,” and contends that the D. C. statute does not require continuing surveillance of a suspect or an uninterrupted knowledge of his location.

The meaning of "fresh pursuit” must be construed according to the purpose of the D. C. statute. Its purpose is the protection of the District citizens by allowing surrounding jurisdictions’ police to enter the District when they are in "fresh pursuit” of one whom the police has reason to believe has committed a felony and has subsequently crossed the D. C. line. The D. C. city limit is an artificial political border which criminals do not respect and use to their own advantage when committing crimes. In many cases the effect of the statute will be a much quicker apprehension of the suspect, who is potentially dangerous to D. C. citizens, than would occur if the foreign police were required to stop at the D. C. border and notify the D. C. police, through normal bureaucratic channels, of the description of the suspect, his last location and direction of travel, the crime involved, his propensity for violence, etc. The statute’s purpose is accomplished by allowing a neighboring police department to continue its activities, whether characterized as a pursuit or a search, into the District whenever the totality of the circumstances makes it more reasonable for it to do so than to notify the D. C. police, who would then have to begin the pursuit or search anew. See The Council on State Government, The Handbook on Interstate Crime Control (rev. ed. 1966) 119, quoted in Hutchinson v. State, 38 Md. App. 160, 168, 380 A.2d 232 (1977), cert. den., 280 Md. 734 (1978). The statute obviously encompasses a bumper-to-bumper high speed chase across the District line and just as obviously does not encompass looking for a Baltimore City robbery suspect in the District on a mere hunch. This case falls between the two extremes and we must decide how to determine whether or not it falls within the statute.

The first requirement is contained in the statute itself, that the police have reasonable grounds to believe that the suspect has committed a felony. See D. C. Code §§ 23-901 through 23-903 (1973). In this case Officer Krieger testified that she drove into the District after hearing the police broadcast of a suspected murder and that a black male had been seen running from the victim’s car. Thus, the first requirement is met.

The second requirement is also enunciated in the statute: "[fresh pursuit] shall not necessarily imply an instant pursuit, but pursuit without unreasonable delay.” D. C. Code § 23-903 (1973). The police must pursue within a reasonable period of time. If they do not have sufficient clues immediately at hand to enable them to pursue the suspect, they obviously cannot do so. But upon receiving information sufficient to make a pursuit possible, they must do so, otherwise they would be just as effective if they notified the D. C. police about the information and allowed them to do the pursuing.

In Hutchinson v. State, supra, 38 Md. App. at 168-69, we applied the D. C. Fresh Pursuit Act and relied on Kansas v. Tillman, 208 Kan. 954, 494 P.2d 1178 (1972), because both Kansas and Missouri had enacted the Uniform Act on Fresh Pursuit, as had the District. In Tillman a private citizen followed two armed robbers from Kansas into Missouri and notified police in both states of the location of the abandoned getaway car. Missouri police determined that the car was owned by a Missouri car rental agency which had rented it to one Gratten. Kansas police first staked out Gratten’s residence, then proceeded to the rental agency and arrested the suspects after being informed that they had been seen there. The police had gone to the scene of the robbery, learned of the location of the getaway car, proceeded to that location, staked out the suspect’s residence, proceeded to the car rental agency, and finally arrested the suspects. The court held that there was no unreasonable delay. The police pursued from clue to clue in a diligent manner.

In Sixfeathers v. State, Wyo., 611 P.2d 857 (1980), four suspected felons were reported to be headed east on a certain highway at 2:46 a.m. Police began to search for them. At 3:27 a.m. a private citizen reported that persons similar to the suspects’ descriptions had tried to obtain gasoline from him. Police searched about two miles beyond their reported location, about three miles into South Dakota, and arrested the suspects. The court held that the 41 minute delay between the first and the second report was not an unreasonable delay, citing as factors the few policemen available, the diligence of the police investigation, and the dangerous propensity of the suspects. Id. at 862.

In the present case, the record clearly shows to us that the Montgomery County police acted without unreasonable delay in apprehending Mr. Swain within an hour of the shooting of Ms. Logan.

The third requirement is that the police act continuously, without interruption from the beginning of their response. The reason for this requirement is the same as that for the second requirement: if the police cease their active pursuit and investigation then the reason for allowing Maryland police to cross the District line, to allow a more efficient pursuit and quicker apprehension of the suspect, disappears and the District police could carry out the investigation just as efficiently. A federal court has characterized this criterion as calling for "an unbroken search.” Reyes v. Slayton, 331 F. Supp. 325, 327 (W.D. Va. 1971). There the court held that a petitioner was lawfully arrested by municipal police who rapidly followed successive clues beginning with a simple description of the suspect, which led them outside their jurisdiction in close pursuit. Accord, Maine v. Carey, Me., 412 A.2d 1218 (1980). There is every indication in the present case that Officer Krieger’s conduct in response to the shooting was persistent and continuous.

Depending on the circumstances of the factual situation with which the police are faced, other factors may determine if police action meets the "fresh pursuit” test. The Supreme Court of Wyoming came to the same conclusion when it said:

"The nature of the crime, the activities and location of the pursuer after receiving a report of the commission of the crime, the activities and location of the pursued after commission of the crime, whether or not the pursued had been identified or would escape, the extent and nature of the evidence connecting the pursued with the crime, and the potential for the pursued to cause immediate and additional injury or damage to others are examples of the circumstances to be considered in the determination as to whether or not the pursuit was without unreasonable delay.” Sixfeathers v. State, 611 P.2d at 861 (citing cases).

In this case several factors qualify the police action as fresh pursuit. The police knew from the radio broadcast that the suspect they were looking for was wanted for murder. The more heinous the crime, the more important it is to apprehend the suspect. Because the suspect had already committed one murder, he might have little hesitance about committing more deadly assaults. The greater the danger to the public safety, the more important it is to apprehend the suspect quickly. The only clue the police had as to the identity of the suspect was a physical description. The chances of apprehending him in the early morning daylight hours were great because the suspect was last seen on foot by an eyewitness minutes earlier and there were few other people on the street. As time progressed, the suspect would be likely to leave the immediate area and more people would be on the street, thus making apprehension of the suspect less likely. The greater the chance that the suspect will escape unless apprehended immediately, the more important it is that the police act quickly and cross the D.C.-Maryland border.

For these reasons, the police actions in this case were reasonable and within the statute because good police work required them to cross the D.C. - Maryland border to apprehend the murder suspect instead of alerting the D.C. police and letting them handle the investigation. We reject the appellant’s contentions that the police must know the suspect’s name or keep him in sight during the pursuit. Criminals do not often leave their name and escape route with the victims of their crimes. To dictate such requirements to the police would unnecessarily hamper the apprehension of criminals and restrict the scope of the fresh pursuit act, eviscerating its purpose.

II. Miranda rights

At the appellant’s pretrial hearing Officer Krieger testified that John Swain made a series of inculpatory statements. The statements made before his arrest as he approached Officer Krieger’s van were not suppressed because these transpired before any custodial interrogation. The statements made to her after he entered her van and was arrested, but before he was advised of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), were suppressed. The appellant was informed of his rights by Officer Krieger after he was placed in the custody of the District of Columbia police. Officer Krieger testified that the appellant did not say yes or no in response to her advice, but she knew that he understood what she had said. Police Sgt. Schirf, who questioned the appellant a few minutes after the appellant was informed of his rights, testified that Mr. Swain responded by saying "Yes” when asked if he understood his rights. The appellant subsequently answered questions concerning the shooting and the location of the murder weapon. These statements were found to be admissible.

On appeal, Mr. Swain contends that he did not waive his Miranda protection against self-incrimination, and that both his statements and the handgun he used should have been suppressed. We disagree with this contention and find no error in the rulings of the hearing judge.

The reason for the Supreme Court’s decision in Miranda was to provide safeguards for persons suspected or accused of crimes in order to combat the "compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.” Id. at 467. The Court said that "a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and the right to retained or appointed counsel. Id. at 475. "[T]he question of waiver must be determined on 'the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused.’ Johnson v. Zerbst, 304 U.S. 458, 464.” North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S. Ct. 1755, 60 L.Ed.2d 286 (1979). Butler said that "an express statement can constitute a waiver, and that silence alone after such warnings cannot do so [,] [b]ut... [Miranda] did not hold that such an express statement is indispensable to a finding of waiver.” 369 U.S. at 373. Butler held that "silence, coupled with an understanding of his rights and a course of conduct indicating waiver,” may support a conclusion that a defendant has waived his rights. Id. Butler reiterated that the prosecution has the burden and it is a heavy one. Id.

We are satisfied that the Butler test is met here even though Officer Krieger’s explanation of the appellant’s Miranda rights was met by his silence. She testified that she knew the appellant and knew that he understood his Miranda rights. We need not determine whether this is sufficient to satisfy the Miranda requirement because whatever acknowledgment on the part of the appellant that he understood and waived his rights that may have been lacking was cured by Sgt. Schirf’s asking the appellant less than five minutes later, "I understand that you have been advised of your constitutional rights by Officer Krieger.” The appellant shook his head in an up and down manner. Then Sgt. Schirf asked the appellant, "Did you understand those rights?” The appellant answered, "Yes.” This is not a case where there was no evidence presented as to whether the defendant below understood and waived his rights. See Tague v. Louisiana, 444 U.S. 469, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980). The fact that appellant contends that he requested an attorney some fourteen hours later and refused to talk further to the police is simply irrelevant to the question of whether the Miranda test was satisfied at the time in question.

III. Medical Treatise

At the appellant’s trial, the prosecution called a psychiatric expert, Dr. Abbas. During direct examination of this witness, the Assistant State’s Attorney asked Dr. Abbas if he was familiar with the Diagnostic and Statistical Manual, Third Edition, (DSM-3). References to this text had previously been made by defense experts. Defense counsel objected to the question presented to Dr. Abbas; the objection was overruled and the witness was permitted to answer affirmatively to the subsequent question of whether the DSM-3 discussed anti-social personality. The trial court did not permit the expert to read from the text. Consequently Dr. Abbas limited his discussion to the diagnostic criteria of anti-social personality, and did not refer to the text. The appellant, relying on Nolan v. Dillon, 261 Md. 516, 537, 276 A.2d 36, 47 (1971), contends that the prosecution accredited the testimony of its expert by the mention of the DSM-3 text, and that the defense was harmed by its inability to cross-examine the authors of the text.

We find no merit to this contention. The reference to the text, which previously had been mentioned, served at most to refresh the recollection of the expert and to focus the line of questioning to a specific topic. It did not serve to bolster the expert witness’s credibility. At all times the evidence was elicited from the expert and not from the text, therefore, the appellant was not denied his Sixth Amendment right, through the Fourteenth Amendment, to confront the witnesses against him. Nolan v. Dillon merely refused to admit journal articles into evidence or to sanction their use in direct examination. In this case the text was neither admitted into evidence nor used in direct examination.

IV. Opinion Testimony

Dr. Abbas explained the procedure at Clifton T. Perkins Hospital that resulted in his opinion as to John Swain’s sanity and capacity. This procedure included discussion between Dr. Abbas and a psychologist, Mr. Stone, who was not certified under the Psychologists Certification Act, Md. Code Art. 43, § 618, et seq. (1957, 1980 Repl. Vol., 1980 Cum. Supp.), and therefore could not testify on the ultimate issue of criminal capacity. See Cts. & Jud. Proc. Art. 9-120 (1974, 1980 Repl. Vol.) and Conn v. State, 41 Md. App. 238, 396 A.2d 323 (1979).

Defense counsel objected to the State’s examination of Dr. Abbas about opinions expressed in a report made by Mr. Stone to Dr. Abbas. The objection was overruled and Dr. Abbas testified that Mr. Stone reported that the appellant did not cooperate in the tests done by Mr. Stone. These results contributed in part to Dr. Abbas’ expert opinion on criminal capacity.

The appellant contends that the State should not have been permitted to make any use of Mr. Stone’s finding because Mr. Stone was not a qualified expert. We disagree with the appellant’s contention. Clearly the ultimate issue of the appellant’s mental condition was addressed by Dr. Abbas who testified to the numerous bases for his opinion, one of which was Mr. Stone’s report. We find no requirement in the law that an expert witness must only rely on the assistance of personnel who could be qualified as experts. Such a requirement would require an expert witness to perform all of his subordinates’ tasks himself. See Fed. R. Evid. 703 (expert witness may rely on facts or data not admissible in evidence "if of a type reasonably relied upon by experts in the particular field”).

In this case, Dr. Abbas’ testimony concerning Mr. Stone’s report did not seek to establish that Mr. Stone’s report was true or that it was directly dispositive on the issue of appellant’s sanity. The former would be barred by the hearsay rule; the business records exception would not apply because the report itself was not introduced. See also Gregory v. State, 40 Md. App. 297, 326-27 (1978) (hospital report diagnosing defendant as criminally responsible inadmissible because it violated the confrontation clause of the Sixth Amendment and Article 21 of the Maryland Declaration of Rights); Grover v. State, 41 Md. App. 705, 710 (1979). The latter would be barred by the rule which permits only persons certified under § 9-120 of the Courts Article to testify on the ultimate issue of criminal capacity. See id. The State questioned Dr. Abbas as to the bases of his expert opinion. One such basis was Mr. Stone’s report. An expert witness may be questioned as to the basis upon which his opinion is based because the credibility of the expert’s opinion is no better than the soundness which his reasons warrant. See, e.g., A. H. Smith Sand & Gravel v. Dep’t., 270 Md. 652, 667, 313 A.2d 820, 828 (1974). Mr. Stone’s report was one of two such reports which indicated that the appellant did not cooperate with the persons who administered certain psychological tests, and, along with other factors, upon which Dr. Abbas concluded that "based on a reasonable medical certainty ... Mr. Swain was able to intentionally do a wrongful act to another without legal excuse or justification.”

V. Jury Instruction

The trial judge instructed the jury that "malice”

"means an act done intentionally and without legal excuse. Malice may be either expressed or implied. It would be express malice if there was an actual intent to cause the death of the person killed or the death of another person.
The malice may be implied if the evidence shows an actual intent to inflict great bodily harm, or when the act is willfully done and the natural tendency of the act is to cause death or great bodily harm, or when there is a homicide and a deadly weapon is used, particularly when it is directed at a vital part of the body.”

• The defense counsel excepted to this instruction on the ground that it inadequately explained "malice,” and failed to recognize that the State, to prove malice, must prove the absence of justification, excuse, or mitigation. The State argued below that the issues of justification and mitigation had not been raised, and that any deficiency in regard to excuse was cured by the court’s instruction that the State must prove the appellant’s sanity beyond a reasonable doubt. The trial court then overruled the defense objection.

On appeal the appellant contends that the "primary thrust” of his trial defense was "his incapacity to act with malice due to excusing and mitigating factors, i.e., his mental disorders.” He further characterizes these disorders as establishing "the defense of diminished capacity.”

We reject the appellant’s contention and find no error in the trial court’s jury instructions. Preliminarily we find that the theory of a diminished capacity is not recognized as a valid defense in Maryland. Armstead v. State, 227 Md. 73, 175 A.2d 24 (1961); see also Pfeiffer v. State, 44 Md. App. 49, 56-57, 407 A.2d 354, 358, n.4 (1979) (listing the jurisdictions which have and have not recognized the doctrine of diminished responsibility). Because Maryland does not recognize the validity of the appellant’s chosen defense, we cannot say that any evidence supporting this defense raised a legitimate jury issue on the question of justification, excuse or mitigation. In Evans v. State, 28 Md. App. 640, 665-69, 349 A.2d 300, 318-320 (1975), aff’d 278 Md. 197, 362 A.2d 629 (1976), we determined that trial judges need not instruct juries on excuse and mitigation unless there was sufficient evidence fairly to generate a jury question. In the absence of such evidence it may actually be inappropriate for the judge to provide superfluous instructions to the jury. Id. at 667.

The jury in the present case was adequately informed of the State’s burden of proving John Swain’s sanity beyond a reasonable doubt. Likewise the trial judge correctly instructed the jury that in order to find Mr. Swain guilty of first degree murder, they needed to find that the homicide was committed intentionally and without legal excuse, such as to establish malice. Id. at 718, A.2d at 348; Leach v. State, 47 Md. App. 611, 621, 425 A.2d 234, 239-40 (1981) (citing Evans v. State). The jury believed the State’s evidence, applied the law, and delivered the guilty verdicts.

Judgments affírmed.

Costs to be paid by appellant.

      . 1. React is an organization of private citizens who monitor the citizens’ hand radio emergency channel, and report traffic accidents to the police.