author: Wilner, J.,

text:
    ROBERT TYRONE TISDALE v. STATE OF MARYLAND
    [No. 447,
    September Term, 1978.]

      Decided January 11, 1979.

    The cause was submitted on briefs to Moore, Lowe and WlLNER, JJ.
    Submitted by Thomas E. Grzech, Assigned Public Defender, for appellant.
    Submitted by Francis Bill Burch, Attorney General, Deborah K. Handel, Assistant Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Marshall H. Feldman, Assistant State’s Attorney for Baltimore City, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

On March 12,1975, appellant was convicted by a jury in the Criminal Court of Baltimore of robbery with a dangerous and deadly weapon and use of a handgun in the commission of a felony, for which he was sentenced to concurrent terms of imprisonment of fifteen and five years, respectively. On appeal, we reversed those convictions and remanded the case for a new trial. Tisdale v. State, 30 Md. App. 334 (1976). Our mandate issued March 29, 1976.

Pursuant to that mandate, Tisdale was retried, again before a jury, on October 11-14,1976, and was again convicted of robbery with a dangerous and deadly weapon. He was once more sentenced to prison for 15 years. He appealed, but neglected to comply with Maryland Rule 1025 (Record — Time for Transmitting), and, as a result, his appeal was stricken on March 29, 1977. In a subsequent proceeding filed under the Uniform Post Conviction Procedure Act, however, he was, on July 5, 1977, granted a belated appeal, and, after numerous extensions of time to file the transcript and transmit the record, the appeal is now, in December, 1978, finally before us.

The evidence presented by the State in the second trial was substantially the same as that presented in the first. It may be fairly summarized from what we said in our earlier Opinion, Tisdale v. State, supra, 30 Md. App. at 336:

“Testimony was produced at trial from which the jury could find that the facts were as follows: On October 2, 1974, at approximately 12:20 A.M., the victim, William Cunningham, was operating his taxicab in the vicinity of Warwick and North Avenues, Baltimore, Maryland, and picked up appellant as a fare. Upon reaching his destination at the 1500 block of Whitelock Street, appellant alighted from the taxicab, pulled a gun out of his pocket and demanded Mr. Cunningham’s money. He then took eight or nine dollars from Cunningham’s shirt pocket, disabled his radio and told him to drive off. Mr. Cunningham drove one quarter block, stopped the cab, took a revolver from under the seat and began to pursue appellant, firing several shots before overtaking and apprehending him.
“Officer Boysie Watkins, on routine patrol, came upon the scene and observed Mr. Cunningham holding the appellant against the side of his cab. Mr. Cunningham explained that he had just been robbed. At that point, according to the testimony of the officer and the victim, appellant made an utterance in which he admitted the robbery. He was then arrested....”

Tisdale’s version of what occurred was quite different. He denied having been a passenger in the cab but claimed that he was simply standing on the corner talking to friends when Cunningham tapped him on the shoulder and asked to speak with him privately. He said that Cunningham complained of just being robbed by two men and solicited appellant’s help in locating the men. When appellant explained that he was a relative stranger in the area, he said Cunningham became angry and pulled a gun on him. He said he then struggled with Cunningham, during the process of which the gun went off several times, but eventually he ended up being forced by Cunningham against the side of the cab at about the same time the police arrived.

Appellant maintained that the police had originally arrested Cunningham for creating a disturbance, and that it was not until about twenty minutes later that he was arrested on a trumped-up charge of allegedly robbing Cunningham.

Appellant makes five complaints in this appeal, none of which have merit. We shall discuss them in sequence.

(1) Did the trial judge’s telephone conversation with a juror in chambers, out of the presence of appellant, constitute a critical stage of the trial, at which appellant had the absolute right to be present?

When court recessed at the end of the second day of trial, both the State and the defense had completed their respective cases-in-chief. The State indicated a desire to call one rebuttal witness.

The next morning, as court convened, the court announced that it had been informed by the Clerk’s office that Juror No. 6, Ms. Smallwood, had called to report that her child was sick and that she would therefore not be present in court. Defense counsel said that he had no objection to seating one of the alternate jurors, but, after discussing the matter with appellant, he announced that appellant objected to that approach:

“Your Honor, I have spoken to Mr. Tisdale and his position is, it is very late in the trial, obviously, and he feels that because Mrs. Smallwood was sitting as one of the twelve on the Jury, she was paying more attention than maybe an alternate would. He felt it would be detrimental to him. He wants to wait until Ms. Smallwood is able to come back and sit on the Jury. He asked me to make a Motion at this time for postponement until Ms. Smallwood could come back to the Jury.”

The court then offered to send the sheriff out to bring Ms. Smallwood in, but Tisdale said that he didn’t want the court to do that. The court thereupon said that “I will make a personal call to her home and I will advise you what the situation is.” Counsel, but not appellant himself, accompanied the judge to his chambers from which, in their presence, he called Ms. Smallwood. Returning then to the courtroom, the court announced, outside the presence of the jury:

“Mr. Tisdale, Mr. Isaacson, in Mr. Isaacson’s and the State’s Attorney’s presence, the Court called Mrs. Smallwood at her home phone number. She answered the phone and she indicated that her child is about two years old. She took the child to St. Agnes last night. The child was vomiting and she took the child to the emergency room where the child received some treatment. She secured medication from the doctors there, she then took the child home. She is presently at home with the child. There is no one else at the home except her to take care of the child.
“Under those circumstances, I think it would be a little improper for me to insist that she come down here and to send the sheriff out to bring her in here. Under those circumstances, that is the reason we pick alternates is that in case something like this happens, an emergency arises in the lives of one of the Jurors, and that is to prevent any impediment to the continuation of the trials. I will seat the alternate number one in seat number six.”

We note initially that appellant does not complain here about the court’s decision to seat the alternate and proceed with trial, or about the fact that the judge called the juror, so those issues are not before us. He complains only that he was not present when the conversation with the juror took place.

The law is quite clear, of course, that a criminal defendant has a right to be present at every stage of his trial, and that this right not only emanates from the common law, but is provided and protected as well by the State and Federal Constitutions and by Maryland Rule 724. See Bunch v. State, 281 Md. 680 (1978). But, as the Court noted in Bunch, “not everything that happens in a criminal case after the jury is impaneled is deemed a ‘stage of the trial’ at which the defendant has a right to be present.” 281 Md. at 684. The question here, of course, is whether this conversation with the juror was such a stage.

By way of short preface, we caution the trial courts that a defendant’s right of presence is a fundamental one, not to be trifled with; and, if there is the slightest doubt as to whether a particular matter or event arising during the course of a trial is a “stage of the trial” requiring the defendant’s presence, the doubt should, wherever possible, be resolved in his favor; i.e., mandating his presence. This is simply a matter of exercising abundant care to assure that the trial is not only fair in fact, but also in appearance.

Turning to the precise question raised here, it does not appear that the Maryland appellate courts have ever ruled directly on it, however a number of Federal courts have; and the consensus seems quite clearly to be that it is not impermissible for a judge to make such an inquiry of a juror outside the presence of the defendant.

In United States v. Woodner, 317 F. 2d 649 (2nd Cir., 1963), cert. den., 375 U. S. 903, the Court concluded that no reversible error was committed when, near the end of the trial, the judge spoke privately with a juror who had asked to be excused for personal hardship in an attempt to convince the juror to remain on the jury. Noting that counsel had agreed to this private meeting, the Court concluded that, even if that were not the case, prejudice would not be presumed in the absence of some evidence of it. Said the Court (317 F. 2d at 652): “We have enough confidence in the integrity and fairness of the District Judges to assume that they will not make unfair remarks to jurors while undertaking administrative duties of this nature.” (Emphasis supplied.)

Woodner was cited, and its rationale was applied, in United States v. Houlihan, 332 F. 2d 8 (2nd Cir., 1964), cert. den., 379 U. S. 828. The juror there was a nurse who had asked to be excused before trial started because her employer, a patient suffering from heart illness, objected to her serving on what loomed as a two-month trial. Her request was denied at that time, but prior to the convening of court on the eighth day of trial, she appeared at the judge’s chambers and advised him that her patient had sustained an angina attack the previous day and was alone. Because of the emergency, the judge excused the juror. Neither counsel nor the defendant were present during this conversation, and no transcript was made of it, but everyone was fully informed of what had occurred when they arrived.

Against an attack that the court’s dismissal of the juror is an integral part of the trial, at which the defendant had a right to be present, the Court held that the defendant’s rights had not been violated. Noting that in Woodner it had found that no prejudice (or error) arose from a private conversation resulting in the retention of the juror, the Court concluded that “[cjertainly no greater prejudice can arise when as a result of the interview the juror is dismissed and, in the presence of the defendant and his attorney, an alternate is substituted.” Houlihan, supra, at 13.

See also United States v. Lustig, 555 F. 2d 737 (9th Cir., 1977), cert. den., 434 U. S. 926; United States v. Garafolo, 385 F. 2d 200 (7th Cir., 1967), vacated on other grounds, 390 U. S. 144, rev’d on other grounds, 396 F. 2d 952; United States v. Crisona, 416 F. 2d 107, 119 (2nd Cir., 1969); Ellis v. State of Oklahoma, 430 F. 2d 1352 (10th Cir., 1970), cert. den., 401 U. S. 1010; United States v. Steed, 465 F. 2d 1310 (9th Cir., 1972), cert. den., 409 U. S. 1078; United States v. Baca, 494 F. 2d 424 (10th Cir., 1974); Bacino v. United States, 316 F. 2d 11 (10th Cir., 1963), cert. den., 375 U. S. 831; United States v. Evans, 542 F. 2d 805 (10th Cir., 1976), cert. den., 429 U. S. 1101. Compare United States v. Taylor, 562 F. 2d 1345 (2nd Cir., 1977), and United States v. Gay, 522 F. 2d 429 (6th Cir., 1975), where the trial court had declined to advise counsel oí the substance of private communications with a juror.

Most of these cases speak in terms of whether the defendant has been “prejudiced,” either with respect to the right of presence directly or as to whether its violation was “harmless”; and distinctions have been drawn between those situations in which the inquiry concerned a juror’s disqualification for cause — for bias or partiality — and those in which the question was merely whether the juror was able to continue.

Maryland Rule 751 b states, in part, that “[ajny juror, who prior to the time the jury retires to consider its verdict, becomes unable or disqualified to perform his duties, shall be replaced by an alternate juror in the order in which called.” We noted in James v. State, 14 Md. App. 689, 699 (1972), with respect to similar language in the predecessor rule (former Maryland Rule 748), that the circumstances under which a juror may be found “unable or disqualified” to perform his duties are not defined, and each case must stand on its own facts. Thus, the decision to excuse a juror and to seat an alternate in his place is one that rests within the discretion of the trial court.

Unsaid in James — unnecessary to be said in James — is that, where the issue is disqualification of a juror for cause, the court’s discretion is necessarily more limited than where the issue is the juror’s ability to continue. A proceeding to determine whether a juror should be disqualified for bias or partiality is much akin to the initial jury selection process. The ultimate issue, in both instances, is the fairness of the trial itself, and the same, or closely similar, considerations pertain to both types of proceedings. Primarily, if not wholly, for that reason, a defendant's presence is required at proceedings conducted for the purpose of determining a juror’s post-impaneling disqualification, Bunch v. State, supra, 281 Md. at 685, 686, and during voir dire examinations, Haley v. State, 40 Md. App. 349 (1978).

Where the question is the juror’s ability to continue, however, the issue is not so much one of fairness but of efficiency. In James, supra, we quoted at length and with approval from People v. Peete, 202 P. 51 (Cal. App., 1921):

“We may not assume that an ‘alternate’, merely because he is conscious that it is possible that he may never be required finally to decide the case as one of the twelve by whom the verdict is rendered, will violate his oath and pay less heed to the evidence than he would if he were impaneled as one of the regular jurors from the inception of the trial. On the contrary, we must assume that he will obey his oath, and that he will well and truly try the matter in issue, as he has sworn to do, just as he would if he were one of the original twelve jurors.”

Acceptance of this principle, which is necessarily implicit from the very existence of Maryland Rule 751 authorizing the selection of alternates, makes an inquiry as to a juror’s ability to continue a wholly different type of proceeding than one designed to determine a juror’s bias. It is presumed that the defendant’s trial will be no less fair or impartial if a regular juror is excused because he is unable to continue and an alternate is seated in his place. The relevant inquiry, rather, is only whether the juror in fact is unable to continue, and, if so, whether trial should be recessed until the juror is able to return or should proceed apace. In either event, it is presumed, in the absence of evidence to the contrary, that the defendant will be tried by a fair and impartial jury, properly selected.

In this context, the determination of whether to wait for the absent juror or to proceed is clearly a matter of discretion for the court, and under the prevailing practice and case law, the court would have been fully justified in excusing the absent juror and seating an alternate in her place directly from the bench. The mere absence of the juror, particularly when coupled with the message from the Clerk, would have sufficed to negate any reasonable claim of abuse of discretion. In an extra, and unnecessary, effort to be more than fair with appellant and solicitous of his objection, the court made the telephone call to determine firsthand whether or not the juror would be able to resume her duties with dispatch. The sole function of this call was to assure that the court’s decision would be an informed one — that its discretion would be exercised soundly and intelligently. In that context, it was entirely collateral to any matter pertaining to appellant’s guilt or innocence, or to the fairness of his trial.

When made in the presence of counsel and without objection and followed by a full disclosure in open court and on the record of what occurred, the call was, we believe, one of those “administrative” matters referred to in Woodner, supra, rather than a “stage” in the trial at which the defendant had a right to be present.

(2) Was appellant denied due process of law because the State failed to produce certain tape recordings until the day of trial and because the court declined to permit appellant to listen to the tapes?

On June 1, 1976, appellant, in proper person, filed a motion for discovery and inspection seeking a wide range of tangible evidence, among which was a “full transcript of Baltimore City Police radio and telephonic communications to or from Officer Boise [sic] Watkins, Western District Police Station, on October 1,1974 and October 2,1974, as they relate to the defendant____” This evidence, he claims, would support his contention that the police initially arrested the cab driver, Cunningham, and would serve to discredit evidence produced at his first trial indicating that he (appellant) was arrested first.

As of the commencement of trial, October 11, 1976, these tapes had not been turned over, and, as a result, appellant moved to dismiss the proceedings. After some discussion, it appeared that the tape or a transcript of it could be produced, but not immediately. The court offered appellant a continuance, which he declined; and the court thereupon permitted trial to proceed but reserved ruling on the motion to dismiss. During a recess after the jury was impaneled, but before any evidence was offered, the tape was produced and was played by defense counsel. The court then inquired as to whether counsel desired to use the tape in any manner; if so, the court said that it would instruct the officer to return with the tape at the appropriate time. Counsel, after consulting with appellant, responded:

“In my opinion there is nothing beneficial in the tape which would help him in his defense. Mr. Tisdale has said to me, Robert, at this time he does not want to make a decision, he wants to reserve his right whether or not to use the tapes when he puts his defense on.”

To this, the court responded that appellant could use the tapes if he chose to do so, noted that the officer could return, and denied the motion to dismiss. At the conclusion of the State’s case, appellant asked for acquittal, in part upon the grounds alleged in the earlier motion — that the tape was not produced until trial — to which the court stated that it had instructed the officer to return with the tape: “He will be on call here Wednesday. The officer will be here to produce that tape, you may listen to it again. You may use it in any measure you like during the trial.”

Appellant seeks to fit this case under the rule of Brady v. Maryland, 373 U. S. 83 (1963), but Brady’s aegis is not that large. In the first place, without in any way sanctioning the unexplained, and therefore unjustified, dereliction of the State in not producing the tape earlier, the fact is that it was produced at trial, appellant was offered, and refused, a continuance, and, in counsel’s judgment, it contained nothing of any help to appellant. Upon this record, it does not appear that appellant suffered any prejudice from the delay, either procedurally or in substance; and there was no basis, therefore, for the court either to dismiss the charges or direct a verdict of acquittal by reason of the delay. Younie v. State, 19 Md. App. 439 (1973), rev'd on other grounds, 272 Md. 233; Tobias v. State, 37 Md. App. 605 (1977).

With respect to the second prong of appellant’s “due process” argument — that he was not permitted to listen to the tape himself — we observe only that he made no request to do so, and never presented his complaint about not hearing the tape to the trial court. We shall therefore decline to consider that argument. Maryland Rule 1085.

(3) (4) Was appellant denied his right to the effective assistance of counsel?

Appellant’s third and fourth arguments are essentially the same — that trial counsel was not appointed until shortly before trial, that counsel did not have time to investigate the case properly, and that he failed to afford appellant the opportunity to review the police tapes. We consider this issue because it was raised and decided in the trial court. We have reviewed the record and find no substance whatever to the claim of inadequate or ineffective assistance of counsel.

(5) Was appellant denied his right to a speedy trial?

The mandate from this Court reversing appellant’s earlier conviction and remanding the case for retrial was issued on March 29, 1976. A month later — April 30, 1976 — defense counsel entered his appearance, and trial was thereafter scheduled for June 3, 1976. On or about June 1, 1976, appellant, in proper person, filed a formal request for postponement, claiming that his counsel had not communicated with him, and that, if tried under “the present circumstances”, he would be denied his right to the effective assistance of counsel. His motion was granted; trial was postponed and apparently re-set for August 12, 1976. For some reason, unexplained, on July 26, 1976, trial was again postponed with the consent of both the State and defense counsel. On August 23, 1976, appellant filed a motion for “immediate trial”, alleging that the State had caused three previously scheduled trials to be postponed (an allegation that finds no support whatever in the record). Trial was once again re-set for October 11,1976, and it actually commenced on that day.

We find, from the record, no violation of appellant’s right to a speedy trial. The total elapsed time between the issuance of our earlier mandate, which started the clock running, and trial was 6% months, which, has not been considered to be of constitutional dimension. Davis v. State, 32 Md. App. 318 (1976), cert. den., 278 Md. 720. Even assuming, however, that the balancing test prescribed by Barker v. Wingo, 407 U. S. 514 (1972), must be applied, we find, after considering the total length of delay, the reasons for it, the assertion of the right (and when it was asserted), and any prejudice that may have resulted, that the balance does not work out in appellant’s favor.

Judgment affirmed; appellant to pay the costs.

      . The record shows that extensions of time to file the transcript with the clerk were granted on September 15 and November 8, 1977, and on January 11, February 22, April 25, June 8, and June 27, 1978.

      . In Mills v. State, 12 Md. App. 449 (1971), this Court noted, without comment and in the context of whether a juror should have been excused when it turned out that she knew a witness, that “[ajfter the juror realized she knew the prospective witness, and her knowledge became apparent, the trial judge examined her in chambers and decided that her acquaintance with the witness would not influence her ability to render a fair and impartial verdict.” Neither the Opinion nor the briefs in that case indicate whether the defendant was present at the in-chambers examination. See also United States v. Rowell, 512 F. 2d 766 (8th Cir., 1975), cert. den., 423 U. S. 844.


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    RAYMOND GRADY SHOPE v. STATE OF MARYLAND
    [No. 455,
    September Term, 1978.]

      Decided January 11, 1979.

    The cause was argued before Moore, Lowe and Wilner, JJ.

      Stanley M. Dietz for appellant.

      Stephen B. Caplis, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Andrew Sonner,

      State’s Attorney for Montgomery County, and Thomas Cooke, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

— two sizes too small —

Lori Michelle O’Callaghan visually epitomized “what little girls are made of” — if one could have seen her beyond her bruises and welts. Raymond Grady Shope (who lived with Lori’s mother) having caused those bruises and welts on six-year-old Lori, was convicted by a jury in the Montgomery County Circuit Court of child abuse.

At approximately 3:45 on the morning of May 12, 1977, a neighbor in an apartment under appellant’s heard

“someone very small running across the bedroom floor above me followed by a larger person, heavier person running behind the child and I heard banging around and I heard a man lecturing loudly, something to the effect, T have told you time and time again not .to take it there; you didn’t listen to me, you lied to me.’ I heard what I thought was someone beating against something rather hard above me and then I heard what' seemed to be like furniture being hurled across the room, hitting the wall and falling to the floor.
After I heard the beatings, I heard a small child screaming as if it was in pain. Not the kind of screaming that one would hear if they awakened in the middle of the night from a bad dream or something.
After I heard the child scream I heard what appeared to be something being thrown across the room, hitting the wall and falling to the floor.”

Neighbors in the apartment above were also awakened by noise and heard crying and screaming during the melee which subsided at about 4:00 a.m. with “a child whining ... it sounded like a wounded animal.”

Distraught with having lost at the race track from which he had returned with his family after midnight, appellant argued — and fought — with Lori’s mother over “problems” that he had had with Lori. Whatever those problems may have been, his corrective measures brought on a police inquiry at the instance of his neighbors whose repose had been disturbed by Shope’s choice of punishment.

Upon observing some of Lori’s injuries — including contusions so severe they bled — the police requested appellant and Mrs. O’Callaghan to take Lori to a hospital. As a result of the medical examination and Lori’s statement to an officer, Shope and Mrs. O’Callaghan were arrested.

Shope has appealed his subsequent conviction raising three issues, one of which compels reversal. An inculpatory statement was erroneously admitted. Finding, upon review of the record, sufficient evidence to sustain the conviction despite the preclusion of that statement, we will remand for retrial. See Burks v. United States, 437 U. S. 1, 57 L.Ed.2d 1 (1978); MnckaU v. State, 283 Md. 100 (1978). To assist the court at retrial, we will address all issues raised on this appeal.

— sufficiency of the evidence —

Lori’s testimony was, of itself, sufficient to provide evidence that Shope had caused her injuries by not only hitting and squeezing the petite child with his hands, but also using a belt proliferate with metal studded holes, which she identified. The additional testimony of visual and auditory observations by the neighbors, and by Mrs. O’Callaghan, amply supplemented the evidence from which inferences could have been drawn of the severity of the beating administered by Shope.

The “injuries” were vividly preserved by photographs introduced into evidence. Those pictures clearly indicate the result of “damages, harms or hurts” far in excess of permissible corporal punishment. See State v. Fabritz, 276 Md. 416, 424 (1975). Furthermore, contrary to appellant’s contention, there was medical testimony that indicated that some of the injuries had occurred within four hours of the medical examination on the morning of May 12, 1977 — “on or about” which date the indictment had charged the injuries had been inflicted. Appellant’s sufficiency argument is specious.

— without unnecessary delay —

Following his arrest at 6:45 a.m., appellant was held at the Wheaton-Glenmont Police Station from his arrival at 7:50 a.m. until 7:00 p.m., when he was first taken before a commissioner and apprised of his charges pursuant to M.D.R. 723. Although actually interrogated only 45 minutes, during which he gave a formal, primarily exculpatory statement, he was kept handcuffed to a table in the interrogation room throughout the entire day. It was conceded at argument that the District Court sits from 9:00 a.m. until 5:00 p.m. daily at that location. It is also conceded that there is a commissioner available at the station 24 hours a day, 7 days a week.

Fifteen minutes before the police presented appellant to a commissioner, an officer overheard appellant make an incriminating admission to his common-law wife. The facts leading to that statement were described by the officer there present.

“Raymond Shope had made a request of me that he have certain medicine that Toni O’Callaghan had in her possession. I was very reluctant because the prescription did not have any name or identifying marks on it. I was very reluctant to give it to him. Our procedure is not to allow anything such as that to occur in passing it. I took the chance that they were being honest and frank with me. And rather than pass the medication to him, I allowed Raymond Shope to come into the room with Toni O’Callaghan.
At that time they had a limited conversation in my presence. The conversation was of several things that were said concerning the medication, et cetera. Other things were said, and one of the things Raymond Shope said, T did wrong and I have got to pay for it.’ Toni Shope’s response was, T did wrong too. I was there.’ ”

— the per se exclusion —

A preliminary motion to suppress that statement and a subsequent objection at trial, asserting that appellant had not been before a commissioner prior to making the statement, were both overruled. This was an error, but not one chargeable to the trial judge. It is one the blame for which we must assume. In May of 1977, we held in Johnson v. State, 36 Md. App. 162 (1977), that M.D.R. 723.a. was directory not mandatory. The rule directs that:

“A defendant who is detained pursuant to an arrest shall be taken before a judicial officer without unnecessary delay and in no event later than the earlier of (1) 24 hours after arrest or (2) the first session of court after the defendant’s arrest upon a warrant or, where an arrest has been made without a warrant, the first session of court after the charging document is filed. A charging document shall be filed promptly after arrest if not already filed.”

We were wrong, and the judge below was misled by our misinterpretation.

On April 6, 1978 (the same day Shope was sentenced), we were reversed by the Court of Appeals (Johnson v. State, 282 Md. 314 (1978)), and told not only that M.D.R. 723.a. was mandatory, but also that the sanction for violating it was to be the per se exclusion of any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer. 282 Md. at 328-329.

“We therefore hold that any statement, voluntary or otherwise, obtained from an arrestee during a period of unnecessary delay in producing him before a judicial officer, thereby violating M.D.R. 723 a, is subject to exclusion when offered into evidence against the defendant as part of the prosecution’s case-in-chief. A statement is automatically excludible if, at the time it was obtained from the defendant, he had not been produced before a commissioner for his initial appearance within the earlier of 24 hours after arrest or the first session of court following arrest, irrespective of the reason for the delay.” Id at 328-329, (emphasis added).

The State does not dispute that there was a violation of the rule as interpreted by the Court of Appeals. It argues that Johnson is not retroactive and, even if it is, its holding is irrelevant because the statement here was in the nature of a “ ‘blurt out’ ” type statement which it interprets as “exempted” by the Court of Appeals. Neither argument has merit.

— retroactivity —

Despite the carefully reasoned argument that Johnson is not retroactive when measured against the Supreme Court test in Linkletter v. Walker, 381 U. S. 618 (1965), that question is not an applicable issue in this case. Since Johnson, like Linkletter, addressed the retroactivity of the exclusionary sanction to be applied to a violation of a rule, rather than the retroactivity of the rule itself, the argument appeared at first blush most persuasive. It was given strength more recently by the Supreme Court’s observation in United States v. Peltier, 422 U. S. 531 (1975).

“[I]n every case in which the Court has addressed the retroactivity problem in the context of the exclusionary rule, whereby concededly relevant evidence is excluded in order to enforce a constitutional guarantee that does not relate to the integrity of the factfinding process, the Court has concluded that any such new constitutional principle would be accorded only prospective application. Linkletter v Walker, 381 US 618, 14 L Ed 2d 601, 85 S Ct 1731 (1965); Johnson v New Jersey, 384 US 719, 16 L Ed 2d 882, 86 S Ct 1772 (1966); Stovall v Denno, supra [388 U. S. 293 (1967)]; Fuller v Alaska, 393 US 80, 21 L Ed 2d 212, 89 S Ct 61 (1968); Desist v United States, 394 US 244, 22 L Ed 2d 248, 89 S Ct 1030 (1969); Jenkins v Delaware, 395 US 213, 23 L Ed 2d 253, 89 S Ct 1677 (1969); Williams v United States, supra [401 U. S. 646 (1971)]; Hill v California, 401 US 797, 28 L Ed 2d 484, 91 S Ct 1106 (1971).
We think that these cases tell us a great deal about the nature of the exclusionary rule, as well as something about the nature of retroactivity analysis. Decisions of this Court applying the exclusionary rule to unconstitutionally seized evidence have referred to ‘the imperative of judicial integrity,’ Elkins v United States, 364 US 206, 222, 4 L Ed 2d 1669, 80 S Ct 1437 (1960), although the Court has relied principally upon the deterrent purpose served by the exclusionary rule. See Mapp v Ohio, 367 US 643, 6 L Ed 2d 1081, 81 S Ct 1684, 84 ALR2d 933 (1961); Lee v Florida, 392 US 378, 20 L Ed 2d 1166, 88 S Ct 2096 (1968); see also United States v Calandra, 414 US 338, 38 L Ed 2d 561, 94 S Ct 613 (1974); Michigan v Tucker, 417 US 433, 41 L Ed 2d 182, 94 S Ct 2357 (1974). And see also Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U Chi L Rev 665, 668-672 (1970).” United States v. Peltier, 422 U. S. 531, 535-536 (footnote omitted).

But we note that even Linkletter, the foundation case that it is, begins by expressly limiting the retroactivity question it addressed as

“whether this requirement operates retrospectively upon cases finally decided ....” Id. at 619-620 (emphasis added).

The Court pointed out in note 5 at 622 that:

“By final we mean where the judgment of conviction was rendered, the availability of appeal exhausted, and the time for petition for certiorari had elapsed

Since Johnson was decided on the same day Shope was sentenced. Johnson's retroactivity does not become an issue in this case. The fact that it is before us makes it too obvious for discussion that this case was not “finally decided” when Johnson was filed.

— pure prospectivity —

Equally obvious is the fact that Johnson was not intended to be purely prospective, i.e., a ruling which “does not apply even to the parties before the court.” Linkletter, supra, 381 U. S. at 621-622. The Court of Appeals reversed and remanded the Johnson case for application of its newly espoused sanction. That alone is indicative that the Court did not intend that it be applied purely prospectively.

But for that fact we saw substantial merit in the State’s urging that we apply the reasoning of Johnson v. New Jersey, 384 U. S. 719 (1966). In that case, both Escobedo v. Illinois, 378 U. S. 478 (1964) and Miranda v. Arizona, 384 U. S. 436 (1966) were held to apply prospectively only because:

“to upset all of the convictions still pending on direct appeal which were obtained in trials preceding Escobedo and Miranda would impose an unjustifiable burden on the administration of justice.” 384 U. S. at 733.

Such persuasive reasoning relating so closely to the same issues of excluding improperly obtained statements is most appropriate, but we are bound by the Court of Appeals, and its intended application we cannot gainsay. We are compelled, therefore, to apply the Johnson per se sanction to this violation of M.D.R. 723.a.

— threshold confessions —

Acknowledging sub silentio that the rule was violated, the State argues that the statement was a “ ‘blurt out’ ” type statement “apparently exempted . . . from the ambit of Johnson in the following passage of that opinion:

‘We note also that a truly spontaneous ‘threshold’ confession or statement uttered at the time of arrest or shortly thereafter would not be excludible on the grounds that police subsequently failed to act diligently in complying with M.D.R. 723 a. In such cases there is manifestly no connection between the delay and the statement, and since police misconduct does not in any way contribute to the making of the confession, the exclusionary rule would logically not apply.’ 282 Md. 329, (emphasis in original).”

The State’s alternative argument is as specious as its original was beguiling. The quote upon which it relied set forth a “ ‘threshold’ confession or statement uttered at the time of arrest, or shortly thereafter” as the only exemption from the rule. Twelve hours later is hardly “at the time of arrest or shortly thereafter.”

— the “deluded instrument” —

Presumably because in explaining its reasoning for the “threshhold” exemption, the Court of Appeals noted that

“[i]n such cases there is manifestly no connection between the delay and the statement, and since police misconduct does not in any way contribute to the making of the confession, the exclusionary rule would logically not apply”, 282 Md. at 329,

the State contends that

“[t]he statement in the present case was absolutely not the product of any police misconduct regarding the delay inasmuch as the statement was not elicited by the police.”

Our review of the record does not conclude that the factual circumstances can be conclusively held to reflect that the “police misconduct does not in any way contribute to the making of the confession.”

Appellant was arrested at 6:45 a.m. and his interrogation was concluded by a formal statement at 10:00 a.m. Whether the subsequent 9 hour failure to present him to a commissioner who was at all times available in the same building, was negligent or intentional is not material. It was certainly not “without unnecessary delay” and, consequently as a violation of the rule, was “police misconduct.” The time span alone gives rise to a “but for” argument that the “police misconduct” did in some way contribute to the making of the confession and, consequently, was not envisioned by the court in Johnson as exempt.

If we add to that the circumstance of permitting the appellant to meet with his codefendant, Toni O’Callaghan, so that she could provide a medicine which the officer declined to administer and the “coincidence” of the officer jotting down the inculpatory portions of the conversation, it would seem the delay and associated conduct appears to have contributed to the statement. That suspicion is punctuated by the “forthwith” presentation of appellant to the commissioner fifteen minutes after the inculpatory remark was recorded, but twelve hours after his arrest. The overt and unexplained violation of a procedural rule adopted to assure a constitutional right, coupled with the suspect circumstances, will not justify a finding that the law enforcement officials “believed in good faith that their conduct was in accordance with the law,” precluding our holding that “the imperative of judicial integrity” was afforded. See United States v. Peltier, 422 U. S. at 536-539.

Even assuming the delay was intentionally contrived to elicit the culpatory remark, the sanction of suppressing the truth is hard to justify as proper punishment for the tardiness in formally apprising appellant why he was being held. In light of the completely voluntary nature of the admission of such despicably cruel conduct to a six-year-old child, the equal dispensation of procedural rights for technical rule violations is not always understandable. But justice, to be so, must be equally dispensed, not distributed selectively. Despite its appearance of burning the barn to get rid of the mice, the judgment must be reversed and the case remanded for retrial.

— the search —

Since another trial is imminent, we will respond (if but briefly) to the attack on the warrant to search the appellant’s apartment. He does not question that there was ample probable cause, but argues that he was denied due process because the judge who signed it

“did not carefully read it prior to approving and subscribing the warrant in that he did not consider one of the particularities of the search authorized by the warrant, the limitation that the search be conducted in the daytime. He merely skimmed through the warrant and he paid no particular attention to the warrant’s command to ‘search forthwith’.”

We do not find that the record discloses so casual a perusal as indicated by the appellant. Assuming we did, however, the fact remains that there was sufficient probable cause for the search, as verified upon our independent review. The remaining argument is one of little consequence as far as prejudice is concerned, and appears specious when approached as procedural due process as well.

The warrant was signed at 7:30 p.m., which appellant contends was still daylight. The search was concluded at 8:55, which appellant contends was not only after dark in violation of the warrant’s mandate to search in the daylight, but violated the “forthwith” requirement as well. Neither of these “violations” is sufficient to cause the warrant to be defective or the search to have been improper. The difficulty the signing judge had in recalling that which he had read might suggest the advisability of retaining copies of such warrants and affidavits, Md. Rule 780 b., but it does not compel exclusion of the fruits of the search.

A disturbing procedure, acknowledged by the Montgomery County police in this case, also suggests the advisability of judges retaining copies. It was testified that pursuant to an unwritten departmental policy, after a judicial signature is obtained on a search warrant, it is returned to a police supervisor for his approval. The suspect mischief to which this policy gives rise is pointed up in this case by a handprinted interlineation on the warrant following the indication that the affidavit was attached thereto “AND MADE APART THEREOF.” The judge who signed the warrant did not recall that insertion which he said he would have initialed as customary practice had it been there. He acknowledged that it is conceivable that it was inserted after he signed it. In this instance, the facial alteration was not material. It is, however, highly suspect.

The purpose of a judicial officer approving a warrant is to place an independent and objective official between the enforcement officers and the public for purposes of ascertaining probable cause. The Montgomery County procedure smacks of reviewing the judicial intermediary as presumptively less than objective, and requiring a police overview for their own protection.

Whatever the reason for the procedure it should be stopped. It is highly suspect and permits abuse, causes delay, and casts a shadow over both the warrant and the subsequent search. In the case at bar that suspicion caused us to scrutinize with especial care, the probable cause, the execution of the warrant and the delay in the search as well as the search itself and the resultant seizures. If the proposed warrant and affidavit are to be reviewed by a supervisor, that review should precede the judicial execution of the warrant. No changes should be made or contemplated thereafter.

We found in this case: no prejudice that the sun had set before the search, no harm from the minimal delay, no effect upon the warrant by the interlineation and adequate probable cause for the warrant. On a closer case the suspect procedure might have tipped the scale.

Judgment reversed.

Case remanded for new trial.

Costs to be paid by Montgomery County.

      . Although the officer stated that
      “[p]rior to the statement they were both taken before the Commission of the Wheaton District Station,”
      the record does not bear that sequence out. The chronology set forth by appellant is not questioned by the State.

      . The Court added:
      “Where, however, the delay in presentment falls within the outer limits established by M.D.R. 723 a, it is incumbent upon the trial court to determine whether the State has met its burden of showing that the delay was necessary under the circumstances of the particular case. Examples of necessary delay might include those required: 1) to carry out reasonable routine administrative procedures such as recording, fingerprinting and photographing; 2) to determine whether a charging document should be issued accusing the arrestee of a crime; 3) to verify the commission of the crimes specified in the charging document; 4) to obtain information likely to be a significant aid in averting harm to persons or loss to property of substantial value; 5) to obtain relevant nontestimonial information likely to be significant in discovering the identity or location of other persons who may have been associated with the arrestee in the commission of the offense for which he was apprehended, or in preventing the loss, alteration or destruction of evidence relating to such crime. Mallory v. United States, 354 U. S. [449] at 454-55; Uniform Rule of Criminal Procedure 311; Model Code of Pre-Arraignment Procedure § 130.2(2)(b) (1975).” Id.

      No reason was offered for the delay in presentment in this case, except routine processing of a statement of charges. We cannot believe that 11 hours and 15 minutes is reasonable for such routine administrative procedures. There is no other allegation of necessity for the delay.


author: MacDanjel, J.,

text:
    MICHAEL KOBER v. STATE OF MARYLAND
    [No. 456,
    September Term, 1978.]

      Decided January 12, 1979.

    The cause was argued before Davidson, Liss and MacDaniel, JJ.

      Louis P, Willemin, Assistant Public Defender, with whom were Alan H. Murrell, Public Defender, and Geraldine Kenney Sweeney, Assistant Public Defender, on the brief, for appellant.

      Stephen Rosenbaum, Assistant Attorney General, with whom was Francis Bill Burch, Attorney General, on the brief, for appellee.
   MacDanjel, J.,

delivered the opinion of the Court.

Michael Kober, the appellant, was subpoenaed to appear as the State’s witness in the case of State v. Quinton Donnell Owens, tried in May 1978, in the Circuit Court for Washington County. During that trial he was found in direct (criminal) contempt of court. He now appeals that finding.

When the appellant was called to the stand, he immediately announced that he did not intend to testify. The trial judge advised him that his failure to testify might result in his being held in contempt of court. The appellant then answered questions establishing that he was an inmate at the Maryland Correctional Institution on the date of the incident for which Quinton Donnell Owens was being tried. When he was asked whether he was in a certain area of the prison and whether he had ever seen State’s Exhibit No. 2 (a knife), the appellant stated that he didn’t wish to answer. The court then instructed the appellant to answer, but he continued to refuse. At no time did the appellant indicate his reasons for refusing to testify. The trial judge held the appellant in contempt of court and, later, stated:

“Your refusal was an unprivileged refusal to answer two relevant questions, and this Court found you in contempt.”

The appellant was sentenced to a period of six months imprisonment to be served consecutively to the sentence which the appellant was then serving.

The appellant argues that, because there had been no inquiry by the trial judge as to whether his refusal to testify was privileged under his Fifth Amendment right against compulsory self-incrimination, there was no basis for the finding of contempt. We agree.

The Court of Appeals stated in State v. Roll and Scholl, 267 Md. 714, 727, 298 A. 2d 867, 875 (1373):

“Historically, criminal contempts were positive acts which offended the dignity or process of the court. Holding an offending party in contempt of court was designed to vindicate the authority and power of the court and punish disobedience to its orders.”

While a witness’s (as opposed to defendant’s) refusal to testify may offend the process of the court, the refusal does not offend that process if it is privileged under a Fifth Amendment right against compulsory self-incrimination. See Gardner v. State, 10 Md. App. 691, 272 A. 2d 410, cert. denied, 261 Md. 724 (1971). In that case, a witness who refused to testify was found in contempt of court, but it was clear that the refusal to testify was not privileged.

We hold that, because of the critical role which the right against compulsory self-incrimination plays in our legal system, a trial judge before finding a witness in contempt must ascertain, by inquiry when necessary, whether a refusal to testify is privileged. Only if the judge has determined from the evidence that a witness’s refusal to testify is not privileged, may he find that witness in contempt of court.

In the present case, it was not readily apparent whether the appellant claimed the privilege or whether his refusal to testify was privileged under the Fifth Amendment right against compulsory self-incrimination. Accordingly, the trial judge should have inquired as to the reason for the witness’s refusal to testify and determined whether the privilege applied. For this reason, we must reverse the finding of contempt.

We note that many cases make the statement that a court has no duty to advise a witness of his Fifth Amendment right against compulsory self-incrimination. See 98 C.J.S. Witnesses § 449 (1957). These cases, however, are inapposite to the issue now before.this Court. They involve, generally, a situation where a witness is later prosecuted because of evidence which he revealed in his testimony or cases in which the defendant, to gain an advantage for himself, raises the issue for the witness.

Judgment reversed.

Costs to be paid by Washington County.

      . The appellant was summarily punished under Maryland Rule P3, Direct Contempt.

      . The Fifth Amendment to the Constitution of the United States provides, in pertinent part:
      “No person ... shall be compelled in any criminal case to be a witness against himself. . ”
      This provision has been held applicable to the States through the Fourteenth Amendment Due Process Clause. Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L.Ed.2d 653 (1964). See also Brown v. State, 233 Md. 288, 196 A. 2d 614 (1964).

      . The trial judge’s statement, “Your refusal was an unprivileged refusal to answer.....” does not reflect a determination of whether, in fact, the witness could refuse to testify because of his right against compulsory self-incrimination.


text:
    EDWARD HIGGINS, JR. v. STATE OF MARYLAND
    [No. 493,
    September Term, 1978.]

      Decided January 12, 1979.

    The cause was argued before Liss, Wilner and MACD ANIEL, JJ.

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

      Michael A. Anselmi, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, J. Owen Wise, State’s Attorney for Caroline County, and Phillip Carey

      Foster, Assistant State's Attorney for Caroline County, on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

About 11:00 p.m., on the evening of March 15, 1974, an employee at the electric plant of the Easton Utilities Commission saw a black truck loaded with reels of wire leaving the plant. There appeared to be three people in the truck. This event was, in due course, reported to the Easton police department, and, from them, the State Police learned of it. A police radio broadcast advised officers to be on the lookout for the truck.

Less than an hour later, a State trooper heading toward the Annapolis barracks to start his tour of duty spotted a black truck loaded with wire proceeding westerly on U. S. Route 50 toward the Chesapeake Bay Bridge. He followed the truck across the bridge, stopped the vehicle at the toll plaza, and placed its three occupants under arrest. One of the occupants — the driver of the truck — was appellant; another occupant was a man named James Edward Custis, Jr. Employees of the electric plant were advised of the arrest, and they subsequently identified the wire in the truck as having been stolen from the plant.

As a result of all of this, appellant was charged on May 24, 1974, in a three-count Criminal Information with grand larceny (feloniously stealing 12,569 pounds of copper wire of the value of $6,500), receiving stolen goods (the same property), and breaking and entering the storeyard of the plant and stealing therefrom chattels worth $6,500.

Appellant filed a petition for change of venue which, after a hearing held on July 31,1974, was denied. Trial commenced on September 19,1974, before a jury in the Circuit Court for Talbot County. One of the first — and key — witnesses to testify against him was his friend, James Edward Custis, Jr. Custis described the break-in and the stealing of the wire in considerable detail; and to say that he inculpated appellant would be an understatement. Whether for this reason or some other, appellant must have become disenchanted with the way things were going because without waiting to find out what fate the jury had in store for him, he departed the scene during the trial, forfeiting his bail as a result. The jury convicted him.

It is not entirely clear when the minions of the law caught up with appellant, but the record does show that on December 1, 1976 — some two years later — he was returned to the Circuit Court for Talbot County and thereupon sentenced to prison for 15 years. He filed a timely appeal to this Court. (Higgins v. State, No. 1239, Sept. Term, 1976.) In connection with that appeal, it turned out that the court reporter had lost his notes of the hearing held on appellant’s motion for a change of venue. It therefore proved impossible to produce a transcript of what had occurred at that hearing, or, it appeared, a “satisfactory substitute” for such a transcript. Since the correctness of the court’s denial of the motion was an issue in the appeal, this Court, on September 20, 1977, vacated the judgment of conviction and the trial court’s ruling on the motion for change of venue, and remanded the case to the Circuit Court for further proceedings.

Upon remand, the State made certain amendments to the factual allegations in Count I of the Criminal Information (grand larceny), the court denied appellant’s motion to dismiss the Information grounded upon the allegation that the then-incumbent State’s Attorney for Talbot County had represented appellant at a bail hearing following his arrest back in 1974, and, upon appellant’s renewed motion, the case was transferred to Caroline County. There, he was again convicted by a jury of grand larceny and was again sentenced to prison for 15 years.

In this appeal, appellant raises eight issues, but it is only necessary that we consider the first — whether the court erred in admitting into evidence the recorded testimony of Mr. Custis given at the first trial. We think that it did, and, for that reason must again set aside the conviction.

There is no doubt or dispute that Custis’ testimony was highly prejudicial to appellant. As noted, he was an eye-witness — an accomplice — and, if believed, his testimony together with but the legally required minimum of corroboration, would have sufficed to warrant and sustain his conviction. There is also no doubt that Custis was not present at the second trial, and that his recorded testimony from the first trial was admitted solely upon the basis that he was “unavailable”. If Custis was indeed “unavailable” to testify viva voce, the record of his prior testimony would have been admissible. Contee v. State, 229 Md. 486 (1962); Crawford v. State, 282 Md. 210 (1978). Appellant'concedes as much. The question, however, is whether Custis was really unavailable.

Trial commenced on April 11, 1978. About mid-morning on the 12th — the second day of trial — the prosecutor advised the court that, except for Mr. Custis, he had completed his case. He stated that both he and defense counsel had caused a summons to be issued for Custis, each directed to a different address, and each without success. He stated further that defense counsel had attempted to contact Custis in other ways, also in vain; that a defense witness had, the day before, given counsel a third address for Custis, and that a summons had been promptly issued for him at that address; that the prosecutor did not know whether the latest subpoena had been served; but that, in any event, the State had used its best efforts to secure the appearance of Custis.

In subsequent discussion among the court and counsel, it developed that:

(1) Defense counsel had previously written to Custis on two occasions in connection with the case. One letter was written on January 12, 1978. It was sent to “1368 Fed Street Building, Baltimore, Maryland 21231” and was returned as “non-deliverable”. The second letter was not returned.

(2) The previous day (April 11), appellant’s wife gave defense counsel the Fayette Street address, which prompted the issuance of the third subpoena.

(3) In response to the State’s renewed urging that it had used its best efforts, defense counsel pointed out that Custis had previously been convicted and that the State “had contact with him through Probation Department, because it was a suspended sentence.” He argued:

“They could find out from where he works, they had his social security number. They had all of this stated information on him, and they could keep a current record. What they have done is issued a summons for a four year old address, and I don’t think that is sufficient under the law.”

(4) The State advised that it had the court reporter from the first trial in court who was prepared to read into the record Custis’ earlier testimony.

After a recess the State produced Sergeant Walter Chase of the Easton Police Department, who testified as to his efforts to locate Mr. Custis. In January, 1978, he said, he attempted to find out if Mr. Custis had a telephone at the 200 Aisquith Street address. He was told that neither Mr. Custis, nor his father or mother (about whom he also inquired) had a telephone listing at that address. Undaunted, on April 3, 1978 — the same day the State’s subpoena was issued — Sgt. Chase sent a registered letter to Custis at the same address — 200 Aisquith Street. This letter was accepted by a Michael J. Custis, but he had no idea who that person was (and did nothing to find out). That was the extent of his efforts. Cross-examination of Sgt. Chase is revealing:

“Q. Mr. Custis was convicted of a burglary or grand larceny in Talbot County, is that correct?
A. Yes, sir.
Q. And given a suspended sentence?
A. I believe so.
Q. And placed on probation?
A. I believe so.
Q. Did he have a probation officer in Talbot County?
A. Yes sir, down at the department.
Q. And has he completed his probation sentence?
A. I don’t know. I didn’t check with them.
Q. Did you check with probation to see if they had a current address on him?
A. No sir, I didn’t.
Q. Did you check with probation to see if they had any information on him such as his social security number, employer, driver’s license number, or anything like that?
A. No sir, I never checked with Parole and Probation!
Q. But there is an office in Talbot County?
A. Yes sir.
Q. And is it in Easton?
A. Yes sir.
THE COURT: Do you know if he is under supervision and has been transferred to Baltimore, or whether his supervision was still in Talbot County when he went off.
A. Sir, I don’t know. I don’t believe I was at Custis’s trial.
THE COURT: I see.
Q. When you arrested Mr. Custis, did you fill out an information sheet on him?
A. Yes sir.
Q. And that included his employer, mother and father information, his social security number, pertinent data on him?
A. This was the document that I just testified from. That I stated I got the information from. That his father was dead...
Q. Right...
A. That is [sic] mother lived at that address and he was living with his mother.
Q. Did a ... you also have the social security number there on that document?
A. I believe, but a social security number is something that you cannot track down. They don’t fill out.
Q. Do you have his last known employer there?
A. I believe we do.
Q. And would that be the City of Baltimore?
A. Yes sir.
Q. Did you contact anyone at his last known place of employment to see if they knew where he was?
A. No sir.”

Upon this accumulated evidence, the court decided to allow the transcript to be read, at which point appellant himself asked if he could say something. Granted permission, he observed that “[a]ll they had to do was to obtain The Department of Baltimore City where he work at. He is employed there right now .... For the City of Baltimore, the Water Department.” To this bit of news, the court responded that “[i]f you [appellant] want to get him down here tomorrow, tell your attorney and then he can tell the sheriff ____that be can go up to tifie Water Department and serve it if that is where he is.” (Emphasis supplied.) Thus, it concluded,

“Our ruling will stand, but if that is where he is and you get him here later today or tomorrow, we will deal with that when it comes and you can certainly call him as a witness.” (Emphasis supplied.)

The court then took a recess. Upon its return, the plot thickened some more. The court advised that it had talked with the sheriffs office in Baltimore — that the sheriff would issue a summons directed to the Water Department, but that there were three Water Departments, which might cause a problem. More significant news came from defense counsel. The elusive Mr. Custis had been spotted. A defense witness, Mr. Brady, “had talked to Mr. Custis last night and told him to be down here this morning, and Mr. Custis had indicated to Mr. Brady that he was afraid to come down here for some reason....”

Mr. Brady was then called as a witness and, under oath, confirmed that he had seen Custis on the corner of Chester and Chase Streets between 5:00 and 5:30 the previous afternoon. He said that he told Custis that he was wanted as a witness, but,

“He told me that he had just changed jobs recently. He had just got this new job and that he couldn’t come down here to appear in court because he was scared he would loose [sic] his job----”

Brady said that the new job was driving a dump truck for a construction company, and that, although Brady had offered to pay Custis a day’s pay, he nevertheless refused to come. Brady further confirmed that Custis had previously worked for the City Water Department at Wolfe and Gay Streets, but that he did not know where Custis was presently living or working. Unfazed, the court reaffirmed its decision to allow the reporter to read the previously recorded testimony, noting again that if appellant could produce Custis by 10:00 the next morning, “you can call him as your witness at that time if you want.” Mr. Gretzinger thereupon read Custis’ prior testimony to the jury and into the record.

We are dealing here, of course, with the Constitutional right of confrontation, a right that has been held to be “fundamental”. Pointer v. Texas, 380 U. S. 400 (1965). In Contee v. State, 229 Md. 486, 491 (1962), the Court of Appeals said:

“It is well settled that testimony taken at a former trial may be admitted, if it be shown that the witness is dead, insane, or beyond the jurisdiction of the court, or on diligent inquiry cannot be located, or that some other circumstance exists which shows that the witness who gave the testimony at the former trial cannot be procured as a witness at the second trial.”

Using this standard which, if modified at all since 1962, has been made even more restrictive with the subsequent application of the Federal Sixth Amendment to State proceedings through the “due process” clause of the Fourteenth Amendment, it is clear that Custis was not sufficiently “unavailable” as to permit admission of his prior recorded testimony. The witness was not dead, insane, beyond the jurisdiction of the court, or, as it turned out, unable to be located.

The problem was that the State made no serious effort to procure him. See Barber v. Page, 390 U. S. 719 (1968). It waited until April 3 to request a summons that should have been requested three days earlier. It used an address in Baltimore City that was four years old without the benefit of any subsequent verification, and, indeed, in light of the fact that Sgt. Chase had learned in January that there was no telephone listing for the witness or his family at that address. Fully aware that Custis was then or at least had recently been, on probation, no effort was made to learn of his address from the probation department, either in Talbot County or in Baltimore City. In short, Custis was absent because of the negligent and wholly insufficient efforts of the State to produce him. See Motes v. United States, 178 U. S. 458 (1900); Gaskins v. State, 10 Md. App. 666, 679 (footnote 6) (1971); Brooks v. State, 35 Md. App. 461 (1977).

Ordinarily, this pre-trial lack of effort would itself have been fatal; but here the State had a second chance. At trial, through the efforts of the defense, the State was made aware that Custis was indeed alive and well in Baltimore. There was no evidence, prior to the court permitting the transcript to be read, that Custis was in hiding, that he was avoiding service, or that, with even a modicum of real good faith effort, he could not have been located and served.

The court, for some unexplained reason, cast this obligation on appellant. But it was not his duty to produce the witness. The State desired to use his testimony as part of its case, and thus the State had the responsibility either to produce the witness or to establish that he was truly unavailable. It did neither, and for that reason, the admission of the prior recorded testimony was error — reversible error.

Judgment reversed; case remanded to Circuit Court for Talbot County for retrial; Talbot County to pay the costs. .

      . This was not all. At some point, apparently during the 2-year hiatus, appellant ran afoul of the law in Pennsylvania, because the docket entries show that the 15-year sentence is to commence “when he has been released by the Pennsylvania Authorities to the Authorities of Maryland for the purpose of serving this Sentence.”

      . See Brown v. State, 281 Md. 241 (1977); Bennett v. State, 283 Md. 619, 392 A. 2d 76 (1978). Custis was also tried and convicted for his role in the offense. He received a suspended sentence and was placed on probation. When he was convicted, what sentence he received, and how long his probationary period was are questions unanswered in the record.

      . The record shows that on April 3, 1978, a subpoena for Custis was issued at the State’s request. It showed and was directed to an address in Baltimore City — 200 Aisquith Street — and commanded Custis to appear at 9:50 a.m. on April 11, 1978. Also on April 3, defense counsel caused his subpoena to be issued for Custis. This one showed an address of 1836 Federal Street, in Baltimore City. Both were returned “non est”. The third subpoena, issued April 11, 1978, was directed to 1836 E. Fayette Street in Baltimore, and ordered Custis to appear on April 13. There was no indication on this summons as to whether it had been served.

      . It is most interesting to note that, on April 4, 1978 — the day after it caused a summons to be issued for Custis — the State had a subpoena issued for the reporter — Mr. Gretzinger — directing him to appear on April 12, 1978. Gretzinger was called to the stand for the sole purpose of reading Custis’ earlier testimony into the record; he gave no other evidence. In the absence of some other explanation (of which the record reveals none), it is a fair inference that, at least by April 4,1978, the prosecutor had concluded that Custis would be unavailable, and, without making any further effort to secure his appearance, summoned the court reporter in his place.

      5. Later, Sgt. Chase said that he was “almost positive” that the Talbot County Probation Department would not have had a more current address, because supervision of Custis would possibly have been transferred to the counterpart department in Baltimore City. In addition to the fact that this was his own surmise, he apparently made no effort to contact the probation department in the City.

      . See Pointer v. Texas, supra, 380 U. S. 400; Barber v. Page, 390 U. S. 719 (1968); Crawford v. State, 282 Md. 210 (1978); Gregory v. State, 40 Md. App. 297 (1978).

      . Maryland Rule 742 b directs the clerk to issue a summons upon request of a party "filed at least, nine days before trial, not including the day of trial and intervening Saturdays, Sundays and legal holidays.’’ Under this Rule, the request should have been filed no later than March 31. Had this been done, perhaps the mystery of Custis’ whereabouts could have been cleared up earlier


text:
    ROGER EDWARD GARDNER v. STATE OF MARYLAND
    [No. 494,
    September Term, 1978.]

      Decided January 12, 1979.

    The cause was argued before Moore, Lowe and Melvin, JJ.

      David Freishtat, with whom were Freishtat & Schwartz on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Charles E.

      Wehland, State's Attorney for Howard County, Ronald L. Spahn and David M. Thomas, Assistant State’s Attorneys for Howard County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

— the hobgoblin

Over a hundred years ago, Stephen’s General View of Criminal Law pointed out that the law of conspiracy is the most complete illustration of the fiction consisting of treating as a crime, not the very acts which are intended to be permeated, but certain ways of doing them. Fitz. St. 62. Because the gist of the offense of conspiracy is the combination which is formed for an unlawful purpose, the impossibility of one person forming a combination with himself is too obvious for discussion.

Applying that premise, it would seem “logically” to follow that where one of two supposed confederates merely feigns acquiescence without criminal intent, the other party cannot be guilty of conspiracy since there is no second party with whom he could culpably conspire. See Regle v. State, 9 Md. App. 346, 355 (1970). That would seem a “logical” extension of a rule; but as we are too often wont in the law, the original “two to tango” maxim rings so “logically” that it is applied as stare decisis rather than recognized for the stare dictis that it is.

We have extended that supposition to everything that seemed “logically” to follow from it. So hide-bound did it become that in hoary texts can be found an example that because a man and wife are considered one person, they cannot be considered as conspirators between themselves; nor has that particular fiction been altogether abrogated by the passage of time. See Dawson v. United States, 10 F. 2d 106, 107 (9th Cir. 1926).

Laboring under the assumption that the law is necessarily “logical,” this need for at least two guilty minds to combine in order to conspire, was forged into a rule, the “rule of consistency” — an euphemism that, in a judicial system that relies for its stability upon consistency, further solidified the rule it described. As our Court has heretofore described the rule of conspiratorial consistency, it holds that:

“[0]ne defendant in a prosecution for conspiracy cannot be convicted where all of his alleged co-conspirators, be they one or more, have been acquitted or discharged under circumstances that amount to an acquittal.” Regle v. State, 9 Md. App. at 351.

Without stating that law is not always “logical,” we premised our reasoning in applying that rule upon the rationale that:

“[I]t is illogical to acquit all but one of a purported partnership in crime; that acquittal of all persons with whom a defendant is alleged to have conspired is repugnant to the existence of the requisite corrupt agreement; and that regardless of the criminal animus of the one defendant, there must be someone with whom he confected his corrupt agreement, and where all his alleged co-conspirators are not guilty, a like finding as to him must be made.” Id. at 351-352.

We noted that some common sense has crept into the inconsistency bar to conviction. The rule does not apply to mere procedural impossibility of conviction of co-conspirators, but rather requires their acquittal. The conviction of a single conspirator in a conspiracy case where all co-conspirators were: 1) granted immunity, Hurwitz v. State, 200 Md. 578 (1952); 2) enjoyed diplomatic immunity, Farnsworth v. Zerbst, 98 F. 2d 541 (5th Cir. 1938); 3) unknown to the prosecution, Adams v. State, 202 Md. 455 (1953); 4) granted a consensual nolle prosequi, Greathouse v. State, 5 Md. App. 675 (1969), cert. denied, 253 Md. 734 (1969); or, 5) dead or unapprehended, State v. Tom, 13 N. C. 569, 575 (1830), citing Rex v. Kinnersly, 1 Str. 193 and Rex v. Niccolls, 2 Str. 1227, see Perkins, supra, is not precluded as it might be if all co-conspirators were adjudicated innocent. Such procedural impossibilities do not act as a bar to the conviction of the remaining conspirator.

Despite our recognition of those limitations we stretched the consistency rule a step farther in Regie. Based upon another legal fiction — that an insane person is incapable of forming a criminal intent, Bradford v. State, 234 Md. 505, 512-514 (1964) — we held:

“[WJhere only two persons are implicated in a conspiracy, and one is shown to have been insane at the time the agreement was concluded, and hence totally incapable of committing any crime, there is no punishable criminal conspiracy, the requisite joint criminal intent being absent.” Regle v. State, 9 Md. App. at 355.

There having been no prior adjudication of the co-conspirator (Fields) in Regie, we remanded for retrial with the following directive:

“We thus deem it essential in the interest of justice that appellant’s conspiracy conviction be reversed and that the State be afforded the opportunity to retry the case in light of the principles of law which we consider relevant and controlling. If, upon retrial, the State intends to charge only Fields and appellant as conspirators, and the evidence properly shows that Fields was legally insane at the time the agreement to perpetrate the robbery was concluded, then even though Fields has not been acquitted of the offense of conspiracy by a judicial determination that he was insane, nevertheless the requisite joint criminal intent being absent, appellant cannot properly be convicted of engaging with Fields in a criminal conspiracy.” Id. at 357.

— the facts —

Appellant in the case at bar relies primarily upon the Regie holding in asking that we reverse his conspiracy conviction as rendered by the Circuit Court for Howard County. The appellant, Roger Edward Gardner, was a murderer for hire who conspired with Ralph Lubow to murder Morton Hollander and Alvin Blum. He conditionally “subcontracted” the Blum “hit” to one Timothy McDonald in the event Hollander’s death did not effect the result sought by Lubow. McDonald immediately became a police informant who only feigned acquiescence; thus McDonald lacked the criminal intent necessary to a conspiratorial agreement (see Regle, supra at 355). Consequently, a joint indictment charged only Gardner and Lubow with conspiring together to murder Hollander and Blum, and no other persons known or unknown were named.

Gardner sought and received a severance. He was tried prior to Lubow and, on December 12,1977, was convicted by Judge James Macgill of conspiracy and solicitation to murder. In accord with our Kelley v. State, 12 Md. App. 251, 258 (1971), cert. denied, 263 Md. 716 (1971), Judge Macgill held that:

“[T]he evidence establishes beyond a reasonable doubt that there was an understanding or a meeting of minds between Mr. Gardner and Mr. Lubow to use a word which has been used, more often than not, in the testimony in this case, ‘to hit’ these two gentlemen.”

Gardner had relied heavily upon the Regie case at trial and placed in issue Lubow’s mental competence as his primary defense. Gardner’s attorney called Lubow to take the stand for the limited purpose of waiving his psychiatrist-patient privilege. Md. Cts. & Jud. Proc. Code Ann. § 9-109 (d) (6) (Supp. 1978) (effective July 1, 1977). Judge Macgill met the issue of Lubow’s competence head on in his opinion. After reviewing the holding of Regie, he addressed the evidence as presented in the case, finding factually that Lubow was capable of the prerequisite criminal intent to participate in a conspiracy with Gardner. Gardner was sentenced on March 21, 1978 to two five year terms for conspiracy and one for solicitation to murder, all to be served concurrently.

Seven months after conviction (but four months after sentencing), Ralph Lubow was found “not guilty” (by reason of insanity) of having conspired with Gardner for the murder of Hollander and Blum. Appellant now calls upon us to reverse his conviction under the Regie holding because of its “repugnant” inconsistency with the Lubow result in order

“to place Lubow’s subsequent acquittal within the record, [so that] justice would be best served by addressing through judicial notice the merits of the issue raised by that [Lubow] acquittal.”

Unless we are prepared to rescind our Regie decision, what appears at first blush to be the next logical progression of the consistency rule as extended by Regie would provide an easy answer favorable to appellant. But Regie, like most of our cases, is only authority for what it actually decided. It does not necessarily follow that it can be quoted for a proposition that may seem to follow “logically” from it, as pointed out by Lord Halsbury in Quinn v. Leathern, [1901] A. C. 495, 506. “Such a mode of reasoning assumes that law is a logical code whereas every lawyer must acknowledge that the law is not always logical at all.”

As beguiling as such an easy answer would be, we are troubled that the very issue upon which Gardner now relies for his release (i.e., Lubow’s mental incompetency) formed the heart of Gardner’s defense in his own trial, and was fully tried and definitively decided by the Gardner court. Appellant did not object below to the trial proceedings on the insanity issue or to the sufficiency of the evidence upon which Judge Macgill based his finding of sanity. See Md. Rules 1085 and 1086. To the contrary, he promulgated the consideration of that issue. What appears a “logical” extension of the rule of consistency would provide an illogical result.

— the insanity defense —

Undergirding Gardner’s contention is the presupposition that Lubow’s sanity can ,’bnly be conclusively litigated by Lubow. It presumes that any litigation hinged upon the issue of Lubow’s competency is temporary, despite its final determination by another court, and is subject to stand only if a consistent verdict evolves from Lubow’s trial — if, indeed, he is tried at all. There are, however, fatal weaknesses in appellant’s position.

The rule of consistency does not require an adjudication of guilt of a co-conspirator. As indicated above, the rule does not foreclose conviction where a co-conspirator may have been granted immunity (Hurwitz, supra), be unknown (Adams, supra), unapprehended or even dead (Perkins, supra),

“so long as the disposition of the case against a co-conspirator does not remove the basis for the charge of conspiracy, a single defendant may be prosecuted and convicted of the offense ....” Regle v. State, 9 Md. App. at 352.

If the State had decided not to prosecute Lubow, then Gardner, having injected Lubow’s competency as a defense, would be bound by the verdict in his case. Regie decided that precise issue. Upon the remand there, Regie was to be exonerated if “the evidence properly shows” in his case that his co-conspirator was insane. Implicit in those instructions was our recognition that the co-conspirator would never be tried, because the record showed that the co-conspirator “had been examined by State psychiatrists ... and found ’not guilty by reason of being insane at the time of the alleged crime.’ ” Id. at 350. It is apparent that we expected the issue of the co-conspirator’s sanity to be an issue to be decided only in Regie’s case.

In Regie, we did not address what evidence was necessary for a factfinder to conclude that “the requisite joint criminal intent” was- absent, other than to point to our reliance on Bradford, supra, 234 Md. at 514, for the premise that “an insane person is mentally incapable of forming a criminal intent.” Regie v. State, 9 Md. App. at 355. But that premise, while true under the McNaughten test for insanity used at the time Bradford was written, is only a half truth under the current Maryland substitution of the American Law Institute test, adopted by Chapter 709, Laws of Maryland, 1967 (current version at Md. Ann. Code art. 59, § 25 (Repl. Vol. 1972)). See Conn v. State, 41 Md. App. 238 (1979); McCracken v. State, 2 Md. App. 716 (1968), cert. denied, 250 Md. 732 (1968). Under the McNaughten-Spencer test (see Spencer v. State, 69 Md. 28 (1888)), the only question for the factfinder was the ability of the offender “to distinguish between right and wrong and understand the nature and consequences of his act as applied to himself____” Rowe v. State, 234 Md. 295, 305 (1964), cert. denied, 379 U. S. 924 (1964). Obviously, under that test, the Bradford Court was correct in pointing out that an insanity issue involved “the mens rea or intent which is an essential element of the offense which the State must prove,” Id. at 514, or, as broadly translated by Chief Judge Murphy for our Court in Regie, “an insane person is mentally incapable of forming a criminal intent.”

Since the 1967 modified adoption of the American Law Institute test by the Legislature, that is no longer necessarily true.

“The [19671 legislation broadened the previous ‘right-wrong’ test by making the insanity defense available to an offender who, although he could distinguish between right and wrong and could understand the nature and consequences of his acts at the time of the commission of the crime, could not, as a result of a mental disease or defect, conform his actions to the requirements of the law.” Conn v. State, 41 Md. App. 238 at 244.

Even at the time of Regie, had we been called upon to set forth what proof of the co-conspirator’s insanity would redound in Regie’s release, the statute would have compelled our explanation that only one of the two alternate tests for insanity would have sufficed. Md. Ann. Code art. 59, § 25 (a) (1972) states that:

“A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disorder, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.” (emphasis added).

Worded in the disjunctive, the statute provides an alternative escape for an offender who may have had the mens rea prerequisite to a crime requiring it (i.e., who does appreciate the criminality of his conduct). Despite finding such criminal intent in an accused, he is to be “found insane” (and thus not guilty) if he “cannot conform his conduct to the requirements of law” — which requirements he may fully appreciate. In essence, he escapes responsibility for his own overriding lack of will power, rather than for any absence of criminal intent. Such a person could provide the “requisite joint criminal intent” to conspire, but might himself escape punishment because “the devil made him do it”.

When Gardner was tried, his primary defense was Lubow’s insanity. Lubow took the stand for the purpose of waiving his right to suppress his psychiatrists’ testimony. Although Lubow declined personally to testify on fifth amendment grounds, Gardner raised no objections nor sought any relief, such as a continuance. Judge Macgill, as factfinder, expressly stated not only that he found that Lubow was able to conform his conduct,

“but that Mr. Lubow, at least as I interpret the testimony of the majority of the psychiatrists, was suffering from a mental disorder but they seemed to have agreed generally, if not entirely, that he did have the capacity — substantial capacity to appreciate the criminality of his conduct during the period in question. The division of opinion was whether he had substantial capacity to conform his conduct to the requirements of law. That is the issue which I have to resolve as the trier of facts in this case.... Well, considering the testimony, gentlemen, I find that the State has met its burden and has established beyond a reasonable doubt that Mr. Lubow was, although he suffered from a mental disorder, he did, I should say, have substantial capacity to appreciate the criminality of his conduct during the period in question and he did have substantial capacity to conform his conduct to the requirements of law during that period and, therefore, I rule in the legal sense that he was not insane during that period and that, therefore, the conspiracy was formed. In short, Mr. Lubow, along with Mr. Gardner, in the test laid down in Regie v. State, had shared with Mr. Gardner — Mr. Lubow shared with Mr. Gardner the joint intent to conspire to commit a crime and that the criminal conspiracy as charged by the State was present.”

When Lubow was tried 7 months later, the jury was not asked why it found Lubow not responsible, nor are we permitted to look behind the verdict for the reasons therefor. Cf. Williams v. State, 204 Md. 55, 67 (1954); Goldsborough v. State, 12 Md. App. 346, 358 (1971). That Lubow’s jury might have agreed with Judge Macgill that Lubow had the requisite criminal intent {i.e., an appreciation of the criminality of his conduct) destroys the chimera of inconsistency, regardless of whether it disagreed with the judge on the alternative conduct conformity test.

Analogizing: the defense of insanity, like that of justification and self-defense, is somewhat comparable to the old “confession and avoidance.” The latter admitted the truth of the charges but proceeded to prove new matter which tended to deprive the facts admitted of their ordinary legal effect. The former presupposes the commission of the proscribed conduct but denies the prerequisite mental state. It admits the crime — the corpus delicti and agency — but seeks to avoid the responsibility.

When the defense is raised by an accused himself, even in a conspiracy case, he will escape punishment by either alternative, i.e., whether he cannot appreciate the criminality of his participation or if he recognizes the criminality, but simply cannot conform to the law. The statute, however, does not offer that full defense to any but the accused. Such benefit as might there flow to Gardner would have come only because the disposition of a case against his co-conspirator may have removed the basis for the charge of conspiracy. See Annot., 72 A.L.R. 1180 (1931) and Annot., 91 A.L.R.2d 700 (1963). Not only is Gardner saddled with an adjudication to the contrary in his own case, he cannot assure us that Lubow’s trial resulted in removing the basis of the charge.

Gardner was so certain that he and Lubow had contractually had a meeting of minds, that he subcontracted part of his performance commitment. At the time, he was satisfied (as was Judge Macgill) that Lubow was sufficiently competent to contract for murder.

— the severance —

Along with the Fifth Circuit Court of Appeals, we are impressed with what appears to be the beginning recognition that the rule of consistency has another common sense limitation. See United States v. Musgrave, 483 F. 2d 327, 333 (5th Cir. 1973). In Platt v. State, 143 Neb. 131, 8 N.W.2d 849 (1943), the Court noted that the rule of consistency was predicated upon the early English cases in which persons charged with conspiracy were all tried together. Obviously when both or all conspirators rested upon the same evidence in a single trial, and the nature of the crime required a guilty confederation of at least two persons, the conviction of one and acquittal of the other was so inconsistent that the guilty verdict could not stand.

That reasoning is not applicable where the defendants are separately tried. When one of two conspirators is convicted before the other, this concludes the guilt of the untried conspirator for the purposes of that trial. Platt v. State, 8 N.W.2d at 855. Necessarily the guilt of the codefendant was

found as against the defendant, especially where the codefendant’s capacity was raised in defense of the conspirator on trial. This element of the crime (i.e., a co-conspirator capable of conspiring) having been established (as to Gardner here), the crime was complete and the conviction final (as to him), regardless of what another jury with an additional issue upon which to deliberate, might conclude. Id. at 855.

Even “logic” does not support the rule of consistency where a co-conspirator may have been subsequently acquitted for reasons having nothing to do either with his guilt, or with his criminal intent. We agree wholeheartedly with the Platt opinion (recognized in Musgrave as a “scholarly opinion” and “an exhaustive discussion”). It seems “illogical” to say that after one conspirator has been properly convicted he may have a second opportunity to escape punishment in a codefendant’s case, in which the question to be decided comprehends far greater latitude than the issue in his own.

“If the charged conspirators desire all the benefits of a joint trial, a demand for a separate trial should not be made. If one desires a separate trial and the other does not, the statutory provision on the subject must be resorted to. But we can see no reason why the benefits, if any, of a joint trial should accrue to either or any of those charged where separate trials have been demanded and granted as the statute requires.” Platt v. State, 8 N.W.2d at 855-856.

Our “bottom line” then (if such must exist in appellate opinions) is our conclusion that:

“[AJfter a severance a conviction of one of two persons alleged to be conspirators establishes the guilt of both for purposes of that trial and an acquittal of the other defendant on a subsequent trial indicates only a failure of proof as to him, leaving the conviction of the first defendant undisturbed.” 16 Am. Jur. 2d Conspiracy % 33 (1964).

See People v. Holzer, 25 Cal.App.3d 456, 102 Cal.Rptr. 11, 12-13 (1972). This embryonic “trend” is a “logical” progression of the holding of Jeter v. State, 261 Md. 221 (1971). In that case, Jeter was jointly indicted with another for storehouse breaking and felony murder. At his own request he received severance and was tried first, found guilty and appealed to this Court. While the appeal was pending the codefendant, the alleged “trigger man” and principal in the first degree, was acquitted of any unlawful homicide. We concluded that this did not affect our opinion, and affirmed. Jeter v. State, 9 Md. App. 575 (1970). We were affirmed by the Court of Appeals which tersely held that following severance:

“[T]he subsequent acquittal of a principal in the first degree does not affect the trial or conviction of a principal in the second degree.” 261 Md. at 223.

Despite appellant’s proliferate authority (including State v. Buchanan, 5 H. & J. 317, 500 (1821)) for the principle that the rule of consistency applies to single defendants remaining untried after acquittal of all alleged co-conspirators, as well as to jointly tried defendants, he provides no holding upon similar sequential trial positions after severance that would be contrary to the Nebraska and California cases. Our own research has unearthed only one, an English case at the turn of the century, Rex v. Plummer, 2 K.B. 339, 20 Cox C.C. 269 (1902), and that factually falls somewhere between a joint and separate trials. Id. at 345, 20 Cox C.C. at 272.

In Plummer, one of several conspirators pled guilty. His co-conspirators defended and were acquitted. The primary opinion rendered held that “the trial ought to be regarded in substance as joint, and that the plea of guilty ought not to be followed by judgment.” Id. at 272. Plummer was permitted to withdraw his plea. While recognizing “that the course which we cannot hold to be illegal might be used to defeat the ends of justice,” Chief Justice Lord Alverstone felt that he must concur, “because we can find no reason for dissenting.” Id. at 275.

Our thought processes are not so wanting, nor were the New Jersey Court’s in State v. Oats, 32 N.J. Super. 435 (1954), where the defendant and another were indicted for conspiracy to sell narcotics. The defendant entered a plea of non vult under which he was convicted. The other defendant was later found not guilty of such conspiracy, and it was held that the conviction of the defendant under the conspiracy count did not violate standards of due process. The issue was whether there had been a “manifest injustice” which, under a New Jersey rule, would permit the judgment of conviction to be set aside and permit the defendant to withdraw his plea of guilty or non vult. That case is significant (if at all) in finding that the inconsistency was not so “shocking [a] violation of fundamental concepts of justice” as to require the invocation of New Jersey’s rule.

Not only do we agree with the conclusion there reached, but Simon-like advance one giant step beyond. To acquit where guilt is confessed or conclusively proven solely to effect a “logical consistency” pits logic against common sense and permits the latter to fall. Worse yet, it returns frighteningly dangerous criminals unpunished to society which in itself is a “shocking violation of fundamental concepts of justice.”

— the solicitation —

This leads to the second question raised on appeal by Gardner. It is one which is reached with far fewer conflicting principles of “logic” and not nearly as many words. He argues that:

“The Conviction Of Roger Gardner For Solicitation Should Be Reversed For The Reason That (a) Timothy McDonald Was Never Actually Directed To Proceed With A Murder, And (b) Payment Of A Sum Certain, Which Payment Never Occurred, Was A Condition Precedent To Any Contemplated Action By McDonald”.

The crime of solicitation requires neither a direction to proceed nor the fulfillment of any conditions. It is, in essence, asking a person to commit a crime. R. Perkins, Criminal Law 587 (2d ed. 1969). The gravamen of the offense is in the urging. Cf. Cherry v. State, 18 Md. App. 252, 258 (1973). In all likelihood, most criminal “solicitations,” as the word is commonly understood, carry conditional offers of various types of compensations and are probably declined by the solicited party, but solicitations they would be nonetheless. E.g., Md. Ann. Code art. 27, § 4 (Repl. Vol. 1976).

Our review of the record finds that the trial judge was amply justified in finding that the evidence “clearly established that Mr. Gardner did, in fact, unlawfully solicit and incite Mr. McDonald to murder Mr. Blum.... and I think the clincher on that is the — actuality of the solicitation — is the adoption and the handing over of the gun and ammunition.” Md. Rule 1086.

Judgments affirmed.

Costs to be paid by appellant.

      . See R.W. Emerson, Essay on Self Reliance (1841).

      . S. Harris, Principles of Criminal Law 109 (1880).

      . R. Perkins, Criminal Law 622 (2d ed. 1969).

      . Appellant first put into issue the sanity of his alleged co-conspirator. The State countered the defense’s evidence at the rebuttal stage.

      . After Lubow’s acquittal Gardner, who had already appealed his case to this Court, filed a “Motion for: Remand For Further Proceedings” pursuant to Md. Rule 1071, on August 26, 1978. We denied the motion on September 8, 1978. Appellant then asked that we take judicial notice of the acquittal in the present appeal.

      . State v. Buchanan, relied upon by appellant, does not provide binding authority on the point in issue. The citation to p. 500 of 5 H. & J. refers to a Reporter’s Note dealing with the subsequent proceedings of that case upon remand to the trial court.