author: Lowe, J.,

text:
    CARL JAMES HARDIMAN v. STATE OF MARYLAND
    [No. 123,
    September Term, 1981.]

      Decided November 4, 1981.

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

      John W. Sause, Jr., District Public Defender, for appellant.

      Philip M. Andrews, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Paul S. Podolak, State’s Attorney for Cecil County, and John L.

      Scarborough, Assistant State’s Attorney for Cecil County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

Prologue

In Maryland, the prosecution has the privilege of withholding from disclosure the identity of persons who furnish information to police officers concerning the commission of crimes. Nutter v. State, 8 Md. App. 635, 636 (1970). The privilege is not absolute. Whether the disclosure, once demanded, is to be compelled is within the sound discretion of the court. Gulick v. State, 252 Md. 348, 354 (1969). Such exercise of discretion calls for a balancing of the public interest in protecting the flow of information to the police against the individual’s equal, if not predominant, right to a fair defense on the merits. Roviaro v. United States, 353 U.S. 53, 62 (1957); Franks v. Delaware, 438 U.S. 154 (1978).

The exercise of discretion is proportionately restricted by the significance of the disclosure to the accused’s ability to defend on the merits. If the informant merely informed, but did not witness or participate in the criminal act the judge’s discretion is relatively broad; however, even his decision to disclose is subject to appellate hindsight. See Gulick, supra. But when it is indicated upon demand that disclosure is necessary and relevant to a fair defense on the merits, the identity of the informer must be disclosed if that charge is to go forward. Nutter, supra at 638; see also Gulick, supra at 354, 357; Drouin v. State, 222 Md. 271, 286 (1960). It is prejudicial error to withhold the identity of such undercover employees in the face of repeated demands for disclosure when the informer’s

" 'possible testimony was highly relevant ...,’”

as that which

"'might have disclosed an entrapment

or that an informant

" 'might have testified to petitioner’s possible lack of knowledge of the contents of [a] package that he 'transported’.." McCray v. Illinois, 386 U.S. 300, 310 (1967), quoting Roviaro v. United States, 353 U.S. at 63-64.

The Instant Case

In the case we review, Carl James Hardiman was convicted by a jury in the Circuit Court for Cecil County of possession and distribution of methamphetamine. The State’s evidence consisted solely of the testimony of an undercover police officer who testified that he had purchased an amount of methamphetamine from appellant at his home, after having been introduced to him by a confidential informant named "Tinker” or "Joe”. According to the officer, Tinker simply introduced him to appellant, and the appellant negotiated and consummated the sale, after which both the officer and Tinker left appellant’s trailer home.

Appellant’s defense was that he had been entrapped into the transaction by Tinker (or Joe), to whom he had been introduced previously.

"Q On December 7, 1980, were you visited at your home by Officer William Alan Athas, or Athas and one other person known to you by the name of Joe in the late hours of the day?
A Yes, sir.
Q O.K. Had you seen Joe before that date and time of his visit at your home with Officer Athas?
A Yes, sir, I have.
Q Where did you first come to meet Joe?
A Well, I was introduced his being Tinker.
Q You knew him as Tinker?
A Yes, sir.
Q O.K. And where were you introduced to him as Tinker?
A By his brother George Keane supposed to have been.
Q Supposed to have been?
A Yes, sir.
Q When he introduced you to him, did you have any further contact with him socially or business-wise or how did you, your relationship with Joe develop?
A I seen him a couple times.”

He claimed that while he and Tinker were visiting a mutual friend, he accommodated Tinker by taking a package home with him.

"Q Did there come a time when he asked you to do him a favor?
A Yes, sir.
Q Where were you when this particular request was made of you?
A At Danny Johnson’s.
Q At Mr. Johnson’s home?
A Yes, sir.
Q And what was it that Mr. or Joe or Tinker, whatever he chooses to call himself, asked you to do?
A He said since you live in North East, could you bring this down to your house for me?
Q And what is it that he was referring to when he said, 'Can you bring this down to your house for me?’ Was it, was it this item identified as State’s Exhibit No. 2?
A I don’t really know; it looks like a plastic bag to me.
THE COURT: What did you say?
MR. GOODRICK [Public Defender]: He said, 'It looks like a plastic bag to me.’
BY MR. GOODRICK:
Q When you were asked by Joe to bring an item down to your house, did it look like this?
A Yes, sir.
Q Do you know what was in it?
A No, sir, I do not.
Q But you did it, did you not; you did take it?
A Yes, sir.
Q And the item that you received, you received from whom?
A I was given a package at Danny Johnson’s house.
Q By whom were you given it?
A I guess it’s Tinker. I don’t really know; that’s what I was introduced.
Q Tinker?
A You know to be —
Q So, Tinker or Joe, whatever he wants to call himself, gave you that packet. What did he ask you to do with it?
A He asked me could I bring it down to my house.
Q And that house would be the one that you occupied, the trailer?
A Yes, sir.
Q And you did that?
A Yes, sir, I did.
Q Did he tell you what he wanted you to do with it other than take it down to your house?
A He said he’d be there to pick it up.”

According to appellant he did come by "to pick it up,” with the undercover officer in tow in a day or two.

"Q He’d be there to pick it up and he did, in fact, come to your place, as you have testified already, on the 7th of February, did he not?
A I can’t remember exact date, but he did come to my house.
Q With the officer who was in this Court earlier today, Officer Athas? You remember seeing him?
A Yes, sir.
Q Was he with him that time?
A Yes, sir.”

When appellant produced the packet, both Tinker and the officer "[c]hecked it out” after which appellant told them the price, which was coincidentally the same price to which the officer had previously testified.

"Q And then what?
A And they checked it out and he said, 'How much is that? ’ And I says, 'It’s supposed to be $65.00.’ ”

After having swum too far into rough waters, his counsel quickly helped him ashore:

"Q Where did you get that figure?
A Because that’s what I was told.
Q Who were you told that by?
A Tinker.
Q Tinker?
A Yes, sir.
Q Tinker said $65.00. When did he tell you that?
A The day at Danny Johnson’s.
Q At Johnson’s?
A Yes, sir.”

The money was left on the table when the officer and Tinker left the trailer, apparently also to be subsequently delivered to Tinker.

On cross-examination appellant addressed some of the more obvious implications arising from so peculiar a transaction.

"Q All right. And you’re saying that the $65.00, then, would have been his, is that what you are saying?
A I guess so.
Q But yet and you’re saying it was no conversation, here’s a man that’s supposed to own this, comes to your house and the buy is made from you.
Can you explain that?
A I don’t guess he wanted this officer to know or something because he was at Mr. Johnson’s five or six times without him.
Q I see.
A I seen him there.
Q But you didn’t say anything, 'Hey this is your $65.00,’ did you?
A No, sir, I did not.
Q And you kept the money, didn’t you?
A No, sir, I did not.
Q When, well, they left without the money, the money was, remained in your house, is that, isn’t that what you’re saying?
A At the present time, yes, sir.
Q And you say you took it up to this Johnson and gave it to him?
A Yes, sir, the next day.”

While it appeared from appellant’s testimony that he might have known Tinker well enough to have been entrusted with his possessions (as well as his money) and that Tinker had been to his home once or twice,

"Q All right, but Tinker was not at your house before 9:00 on February the 7th? That night, that was the first time he was at your house was that night with Trooper Athas, is that correct?
A No, sir, he was there once or twice before with

appellant denied knowing Tinker’s true identity.

This trial testimony conformed with appellant’s pretrial proffers in, and on, his Motion to Compel Discovery of the undisclosed informant. Consistently he had proclaimed his purpose in demanding the informant’s name. As incredibly naive (or inherently unbelievable) as appellant’s story may make him appear, it is not our role on appeal, nor the trial judge’s on weighing the demand, to decide the credibility of a proffered defense submitted to assess the purpose of disclosure. Appellant contended then, and contends now, that he was entrapped and his purpose in requiring the State to furnish him "the name and address of the confidential informer known as 'Joe’ or 'Tinker’ ” was to verify his version of the incident. Without Tinker’s tale, it would be appellant’s word, credibly crippled by prior convictions and an unspoken missing witness inference, against the word of an officer of the law. Tinker’s tale told as his own, appellant believes, would have vindicated him.

We are in no position on appeal to say him nay for our role of factfinding upon review is severely limited. See Jackson v. Virginia, 443 U.S. 307 (1979). Review of the record reveals that appellant clearly met his burden of showing that disclosure of the informant’s identity was necessary and relevant to a fair defense by proffer in furtherance of his demand for disclosure. Whittington v. State, 8 Md. App. 676, 678 (1970).

There was nothing for the judge to balance on the suppression side of the scale as far as this record reveals. No hearing was held on the Motion to Compel Discovery save only a colloquy between counsel and the court on the morning of trial. Despite appellant’s repeated proffers of the purpose of proving his entrapment defense, the State was never called upon to respond at a hearing with a reason for its denial of disclosure; although it had set forth three "reasons” in an unverified Answer to Motion to Compel Discovery.

"1. The evidence as produced at the Motion to Suppress does not indicate in any way that the defendant was induced to commit the offense which he would not otherwise have committed.
2. The State at the present time does not know the whereabouts of 'Joe’ AKA 'Tinker.’
3. The testimony of 'Joe’ AKA 'Tinker’ is not material to the defense of the accused.”

The first and third response are not reasons at all. They are conclusions; the first a non sequitur and the third a conjecture. If the testimony of Tinker was that which was proffered, it was certainly "material” regardless of how a factfinder might receive it. The State’s second answer, if evidentiarily proven, may have been justified in responding to the request to disclose Tinker’s whereabouts. It does not respond to why the State should not disclose Tinker’s proper name or his last known address.

The record also revealed a unique substitute for a hearing. On the day of trial when the court was called upon by counsel to rule upon his motion, the judge sent him to the State’s Attorney

"to see if either the State’s Attorney or any personnel there could tell you about your question.”

Counsel’s inquiries to the police officer and the Assistant State’s Attorney as to Tinker’s whereabouts received the reply that counsel should seek the information by hearing on the motion in court. Upon reporting back to the court, rather than proceeding with a hearing, the judge recited for the record what he (the judge) had personally done.

"I immediately went to the State’s Attorney’s Office, where I met Mr. Scarborough and Trooper Athas and some other officers. And they told me that they did not know where he was and gave me certain other information that tended to substantiate and confirm that they didn’t know where he was. This was followed by two telephone calls to relatives of the individual, made in my presence and while I listened, and neither of those persons knew where he was, nor had heard from him for quite some time.
And I am satisfied from your efforts and my efforts and the candidness and steps taken by the State’s Attorney’s Office and the State Police that they do not know where he is and that they do not know how to go about finding out where he is, and period.”

For purposes of our review that well intentioned — if somewhat unprecedented — procedure, is not a sufficient substitute for a hearing despite the fact that we are assured by the judge that he

"has tried to be very objective and have the interest of the Defendant very much in mind in [his] conversation with the State’s Attorney’s Office and the State Police, and tries now to relate very honestly what happened and his feelings about the matter and his belief as to the inability to find the individual.”

The State was never called upon to justify its nondisclosure, as far as this record reveals. Even if we were to accept the judge’s confirmation of the State’s allegation of ignorance of Tinker’s whereabouts (which is obviously beyond our judicially cognizable ken) the more pointed problem, according to appellant on this appeal, was Tinker’s identity rather than his address. Counsel doggedly persisted in seeking disclosure of his identity.

"MR. GOODRICK: Did the Court learn of the name of Joe or Tinker?
THE COURT: Yes.
MR. GOODRICK: Would the Court direct the State’s Attorney to release that information?
THE COURT: No.”

When asked for the reason for his refusal:

"MR. GOODRICK: Would the Court put on record why?”,

the court replied:

"Because of matters of security with respect to the individual, his own personal safety.”

Nowhere in the record is there even an evidentiary suggestion that the personal safety of the informant had been jeopardized. Even during trial the only allusion came when an officer was asked generally to describe a confidential informant to the jury. His lengthy definition concluded with the sentence:

"And the information given is also of a confidential nature to ensure the informant’s safety.”

In relation to Joe or Tinker, however, some such suggestion was made but once again only in a general way indicating that it was a procedurally anticipatory safeguard rather than due to a direct or known personal threat of harm to Tinker (or Joe as he was alternately called).

"Q O.K. And is that the way this fella, Joe, operated in relationship to this case?
A That’s correct.
Q O.K. As a part of your relationship with him or any agreement with him, what was involved with reference to would he ever be required to be a witness in any case?
A He voluntarily offered his assistance and as in return for the voluntariness of his assistance, he was informed that he would not have to testify.
Q O.K. Is that, again, a security measure?
A That’s correct.”

Again we note that this is all post-mortem. The testimony is trial testimony relating to the disclosure issue. Disclosure was denied without any taking of evidence, or even proffer of evidentiary facts by the State. Yet even considering this after the fact testimony, the scale tilts heavily in favor of disclosure, indicating that the original error was clearly not a harmless one. On the State’s side of the scale is a general rule of procedural security, but without any evidence of a threat to Tinker personally. On the appellant’s side of the scale, as in Roviaro, were the facts that

"[Tinker] had helped to set up the criminal occurrence and had played a prominent part in it. His testimony might have disclosed an entrapment.... He was the only witness who might have testified to petitioner’s possible lack of knowledge of the contents of the package that he 'transported’ .... The desirability of calling [Tinker] as a witness, or at least interviewing him in preparation for trial, was a matter for the accused rather than the Government to decide.” Id. at 64.

Absent some evidence of danger to the life or lives of the informant (or others) threatened by the revelation of the identity, there is a very small auncel on the State’s side of the scale. The right to produce one’s only defense must predominate over protecting the State’s flow of information — as important as that purpose may be. Id. at 61-62.

The record reveals that appellant did all that he was permitted to do to compel revelation of the informant’s name, and what he did was all that was necessary to shift the burden to the State. See Nutter, supra at 649. The State, on the other hand, stood silent and offered not a single auncel to its side of the judicial balance. We hold, therefore, that the judge abused his discretion by declining to compel disclosure and such failure was prejudicial error requiring reversal and retrial. See Rovario and Nutter, both supra. We need not, therefore, address appellant’s "independent reason” for reversal

"that since a hearing was required and since Appellant was not present at two parts of such 'hearing’ as was held, there was error of constitutional dimension in the procedure adopted by the court. Constitution of the United States, Amendments V, VI, XIV; Declaration of Rights, Constitution of Maryland, Articles 21 and 24; Maryland Rule 724. See also e.g., Bunch v. State, 281 Md. 680; Tisdale v. State, 41 Md. App. 149; State v. Collins, 265 Md. 70.”

We assume that upon remand such procedural oversight will be averted.

In concluding we note that the State’s reliance upon McCoy v. State, 216 Md. 332 (1958), was misplaced, if not misleading. Although it seemingly concedes that "Tinker” was an integral part of the illegal transaction and may thus be subject to an exception to the general rule of nondisclosure, Whittington v. State, supra at 678, the State claims that there is an exception to the exception. The "McCoy exception,” according to the State’s interpretation, is that

"disclosure of the name of the informer is not required where the informer is already known to the accused.”

That is neither the holding nor the dicta of McCoy.

The only issue related to an informant’s identity in McCoy was whether the State’s failure to produce the informer was a denial of due process and whether the evidence was sufficient to convict without such informer’s testimony. Id. at 336. Disclosure or nondisclosure of an informant’s identity was not even an issue in McCoy. Not only did McCoy know the informer, but he never made demand before or at trial of his identity, which was, as a matter of fact, revealed readily during the State’s case. Id. at 339. It was in that context that the Court reflected that:

"If the accused knows the identity of the informer, or, if the name of the informer is not known to the accused, but he fails to make proper demand at the trial for a disclosure of the identity of the informer, there is no prejudicial error if the accused has had ample opportunity to summon or call the informer to the trial. Id. at 338 (emphasis added).

But harmless error which must be decided on a case by case basis, and beyond a reasonable doubt, Dorsey v. State, 276 Md. 638 (1976), is not to be confused with a rule of law holding that disclosure is never required where an informer’s identity is known to an accused. The "rule” is quite the contrary:

"If the identity of the informer is admitted or known, then there is no reason for pretended concealment of his identity, and the privilege of secrecy would be an artificial obstacle to proof.” 8 J. Wigmore, Evidence § 2374, at 766 (1961).

In Roviaro, supra at 60, the Supreme Court clearly adhered to Wigmore’s understanding of the law when it said that

"... once the identity of the informer had been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.”

By footnote the Court reiterated its understanding that an accused’s knowledge of an informant did not support the government’s right to withhold the identity — it destroyed the government’s privilege to withhold it.

The lead headnote in McCoy seems to espouse that upon which the State relies. We remind the State, however, that it is the holding of Court, not the opinion of a headnoter, that provides us the authority we must follow.

Judgment reversed.

Case remanded for retrial.

Costs are not reallocated as part of the judgment of this Court pursuant to Maryland Rule 1082f.

      . "In the case at bar the defendant admitted in his statement to the police lieutenant that he knew the informer. At the trial one of the police officers disclosed the name of the informer without any demand being made. As in the Conforti case, several other questions were asked about the informer — whether the informer was a dope addict — whether the informer had ever been arrested — whether the police officer knew where the informer was at the time — but at no time did the defendant ask for the identity of the informer, demand that the state call him as a witness, or request the state to explain his absence.” McCoy, supra at 339.

        . "... whatever privilege the Government might have had would have ceased to exist, since the purpose of the privilege is to maintain the Government’s channels of communication by shielding the identity of an informer from those who would have cause to resent his conduct.” Roviaro, supra at 60, n. 8.


source: Caselaw Access Project

author: Morton, J.,

license: Public Domain

text:
    DANIEL LOEWENTHAL t/a Loewenthal Construction Company v. SECURITY INSURANCE COMPANY OF HARTFORD
    [No. 145,
    September Term, 1981.]

      Decided November 4, 1981.

    The cause was argued before Gilbert, C. J., and Morton and Thompson, JJ.

      George H. Eggers for appellant.

      James J. Debelius, with whom were Leonard C. Greenebaum and Harlan L. Weiss on the brief, for appellee.
   Morton, J.,

delivered the opinion of the Court.

The appellant, Daniel Loewenthal, t/a Loewenthal Construction Company (hereinafter "Loewenthal”), brought an action for a declaratory judgment that the comprehensive general liability insurance policy with appellee, Security Insurance Company of Hartford (hereinafter "Security”), provided either coverage for or an obligation to defend Loewenthal against claims resulting in an action at law, instituted by Steven D. Newburg-Rinn et ux., et al. against Daniel Loewenthal, etc. In the declaratory judgment action, the Circuit Court for Montgomery County (Mitchell, J.), sitting as a court of equity, by order dated December 2,1980, granted Security’s motion for summary judgment and denied that of Loewenthal, finding that under the insurance policy Security had no obligation to defend Loewenthal in the suit at law. It is from this action that Loewenthal now appeals.

The "Declaration,” filed by Newburg-Rinn against Loewenthal alleges, in pertinent part:

"[Loewenthal] commenced performance on or about June 26,1978. In direct contradiction to the explicit instructions of the plaintiffs’ architect as to the procedure to be utilized in excavating the basement area of the Newburg-Rinn residence, [Loewenthal] bulldozed the entire center area of the basement prior to providing adequate bracing and support for the existing foundation. [Loewenthal] had completed a substantial part of the excavation, when, on July 23,1978, cracks began to appear on one side wall under which [Loewenthal] had excavated.
Soon thereafter, the inadequate bracing and underpinning were pointed out to [Loewenthal] by the plaintiffs’ architect, and [Loewenthal] then promised that he would correct the situation. [Loewenthal] inspected the site on July 4,1978 and again promised to correct the problem, however this was not done. In addition, [Loewenthal] had an implied contractual obligation to perform the work he undertook with skill and care, as is required by one doing excavation work in the building community.
Notwithstanding [Loewenthal’s] representations, and as a result of his breach of contract in failing to properly perform the excavation and underpinning work as contracted, and by failing to perform this work with skill and care, a major portion of the improvement suffered serious property damage. As a direct and proximate result of [Loewenthal’s] breach, emergency repairs were required to prevent further destruction, and it was necessary to replace portions of walls, floors and other structural elements. This also necessitated plaintiffs being caused to vacate their home and to seek temporary shelter.”

As a result of Loewenthal’s alleged negligent actions, the Newburg-Rinns claim damages as measured by "(1) lost rental value of their home, (2) time differential losses in replacement costs, (3) lost wages, (4) property damage, and (5) pain, suffering and mental anguish.”

The comprehensive general liability insurance policy issued by Security to Loewenthal provides, in pertinent part:

"The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of A. bodily injury or B. property damage to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent... .” (Emphasis supplied.)

The hazards insured under the policy were essentially excavation, plumbing ("gas, steam, hot water or other pipe-fitting, including house connections, shop and retail stores or display rooms”), and carpentry ("in the construction of detached private residences for occupancy by one or two families and private garages in connection therewith”). However, under the exclusionary provision relevant to this appeal, the policy did not apply

"to property damages included within ... (2) the collapse hazard in connection with operations identified in this policy by a classification code number which includes the symbol 'c,’ (3) the underground property damages hazard in connection with operations identified in this policy by a classification code number which includes the symbol V.”

As set out in the definitional section of the policy,

"'collapse hazard’ includes 'structural property damage’ as defined herein and property damage to any other property at any time resulting therefrom. 'Structural property damage’ means the collapse of or structural injury to any building or structure due to (1) grading of land, excavating, burrowing, filling, back-filling, tunnelling, pile driving, cofferdam work or caisson work or (2) moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuilding of any structural support thereof. The collapse hazard does not include property damage (1) arising out of operations performed for the named insured by independent contractors, or (2) included within the completed operations hazard or the underground property damage hazard, or (3) for which liability is assumed by the insured under an incidental contract:
'[Underground property damage hazard’ includes underground property damage as defined herein and property damage to any other property at any time resulting therefrom. 'Underground property damage’ means property damage to wires, conduits, pipes, mains, sewers, tanks, tunnels, any similar property, and any apparatus in connection therewith, beneath the surface of the ground or water, caused by and occurring during the use of mechanical equipment for the purpose of grading land, paving, excavating, drilling, burrowing, filling, back-filling or pile driving. The underground property damage hazard does not include property damage (1) arising out of operations performed for the named insured by independent contractors, or (2) included within the completed operations hazard, or (3) for which liability is assumed by the insured under an incidental contract.”

Although Loewenthal paid a premium to eliminate the underground property damage hazard exclusion, there is no question that Loewenthal did not purchase the collapse hazard coverage. Subject to the collapse hazard exclusion were the operational hazards "Excavation 15111 x c” and "Underpinning Buildings or Structures — including incidental shoring, removal or rebuilding of walls, foundations, columns or piers ... 17885 sxc.” Damages arising from excavation or underpinning operations would be covered by the policy if they fell within the underground property damage hazard, but excluded from policy coverage if within the collapse hazard exception.

Loewenthal argues that the policy provides coverage or an obligation to defend for the damage to the Newburg-Rinns for any one of four reasons:

(1) the collapse hazard exclusion is inapplicable and/or unenforceable;
(2) the occurrence is potentially covered by the underground property damage provision;
(3) there is a potentiality of coverage under the basic policy provisions, notwithstanding the above two exclusions;
(4) if the collapse hazard exclusion applies, Security is obligated to provide a defense because of the plaintiffs’ allegations of personal injuries, which are clearly not excluded from coverage under the collapse hazard exclusion.

Turning first to the procedural posture of this case, Maryland Rule 610 provides that a motion for summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits show that there are no genuine issues as to any material fact and the movant is entitled to judgment as a matter of law.

Although a summary judgment in a declaratory judgment action is the exception rather than the rule, circumstances may warrant the entry of a full or partial summary judgment. See Pennsylvania Nat. Mut. v. Gartelman, 288 Md. 151 (1980); National Grange Mut. Ins. v. Pinkney, 284 Md. 694 (1979). As the Court of Appeals stated in Dart Drug Corp. v. Hechinger Co., 272 Md. 15, 29 (1974), "[w]hile a declaratory decree need not be in any particular form, it must pass upon and adjudicate the issues raised in the proceeding, to the end that the rights of the parties are clearly delineated and the controversy terminated ... .” The issues presented warrant a summary disposition.

On the issues properly before us, there is no factual dispute disclosed by the pleadings and affidavits. Rather, the parties disagree on what label should be attached to the facts. There being no dispute as to fact, Security’s liability under the policy turns on the construction of the policy exclusions; this presents a question of law for the court.

The applicable law is set forth in Appleman, Insurance Law and Practice (Berdal ed.) § 4683, as follows:

"An insurer’s duty to defend an action against the insured is measured by the allegations in the plaintiff’s pleadings, and if such pleadings state facts bringing the injury within the coverage of the policy, the insurer must defend, irrespective of the insured’s ultimate liability to. the plaintiff.”

See also Brohawn v. Transamerica Ins. Co., 276 Md. 396, 407 (1975), and numerous authorities cited therein.

Furthermore, where the complaint does not state facts sufficient to clearly bring the case within or without coverage, the general rule, followed in Maryland, is that the insurer is obligated to defend if there is potentially a case within policy coverage. Brohawn, supra, at 408-409; U.S.F.&G. v. Nat’l Pav. Co., 228 Md. 40, 54-55 (1962); Annot., 50 A.L.R.2d 458 (1956).

Collapse Hazard Exclusion

Loewenthal does not agree with Security’s reading of the policy that no coverage can be provided for "collapse of or structural injury to any building or structure due to (1) ... excavating ... or (2) ... shoring [or] underpinning ... any building or structure . . .” (collapse hazard definition),” in view of the fact that Loewenthal specifically was purchasing insurance for excavation hazards.

Loewenthal first argues, quoting D’Agostino Excavators, Inc. v. Globe Indemnity Co., 184 N.Y.S.2d 378 (1959), that "the [collapse hazard] exclusion cancels out the purported [excavation] coverage, a result that could not have been contemplated by the parties.” In Loewenthal’s eyes, although the policy purports to cover him for property damages and personal injuries caused by and during excavation activities, the collapse hazard provision, which excludes coverage for property damages if there is "collapse of or structural injury to any building or structure,” would preclude coverage for damage to buildings and "anything constructed, [such as] water pipes, electrical conduits, sewers .. . .” In effect, the exclusion "would deny to Loewenthal any coverage for any damages due to excavation.”

We do not, however, agree with Loewenthal’s definition of "structural property damage,” or his conclusion that the policy coverage is meaningless in light of the exclusions.” Pipes and sewers are not included within "structural property damage.”

It is only such structural property damage resulting from excavation procedures which is excluded from coverage under the collapse hazard provision. As appellee points out in its brief and in argument to the trial judge, other types of damages resulting from excavation operations would be covered regardless of the collapse hazard exclusion, including structural damages resulting from the insured’s actions where the initial damage was not structural property damage, as well as personal injuries. For example, appellee submits the policy would provide coverage for:

"(1) a supporting brace falling over and injuring the owner of a residence,
(2) a bulldozer accidentally hitting and damaging a motor vehicle, shrubbery ... animals ...,
(3) a backhoe accidentally crushing a plumbing fixture, tearing out wiring, or causing damage to other non-structural elements; and
(4) an antique clock accidentally broken by an employee while digging a hole for a drainage pipe.”

We cannot agree with appellant’s contention that the collapse hazard exclusion is unenforceable because of overbreadth. The collapse hazard exclusion limits but does not render meaningless the coverage generally afforded excavation operations in the "description of hazards” portion of the policy.

Loewenthal next argues, without going into any specifics, that the occurrence at issue does not fall within the collapse hazard exclusion. He merely argues the broad concept of "potentiality.” Under that concept, "[e]ven if a tort plaintiff does not allege facts which clearly bring the claim within or without the policy coverage, the insurer still must defend if there is a potentiality that the claim could be covered by the policy.” Brohawn, supra, at 408, citing U.S.F.&G. v. Nat'l Pav. Co., supra, at 54. Loewenthal attempts to find a "potentiality” of coverage and thus an obligation to defend in what it terms ambiguities and uncertainties in the policy.

It seems quite clear to us that the occurrence fits squarely within the collapse hazard exclusion for which no protection was purchased. As described in the plaintiffs’ declaration, appellant contracted "to perform ... excavation work in accordance with the plans of the plaintiffs’ architect, and ... in addition ... underpinning of the foundation and shoring and reenforcing of the foundation, while the foundation was underway.” Appellant "bulldozed the entire center area of the basement prior to providing adequate bracing and support for the existing foundation” and thereafter "cracks began to appear on one side wall under which [appellant] had excavated.” The damage alleged is clearly structural injury to a building due to alleged negligence in excavating or shoring or underpinning the building. See policy definition of "collapse hazard.” As such, the structural damage resulting from appellant’s activities is excluded from coverage under the collapse hazard exclusion.

Underground Property Damage Hazard

Appellant next argues that appellee is obligated to defend because of a potentiality of coverage under the underground property damage hazard provision, an exclusionary provision of the policy which had been purchased by appellant.

The applicability of the underground property damage hazard provision was not timely raised by appellant’s counsel. The briefs and arguments on the motions for summary judgment raised as the sole issue the interpretation and enforceability of the collapse hazard exclusion. No mention of the coverage provided by the underground property damage hazard provision was made by appellant until motion to reconsider the court’s rulings on the cross-motions for summary judgment. On the motion to reconsider, appellant’s counsel proffered to the trial judge that "the underground property damage hazard wasn’t argued ... on the prior hearing.” The trial judge, without more, said: "Very well, Motion is denied.”

This Court has stated, in Angell v. Just, 22 Md. App. 43, 47 (1974):

"It is well settled in Maryland that the grant or refusal of a rehearing lies within the sound discretion of the trial court. The action of the trial court upon such motion will not be disturbed on appeal except under the most compelling and extraordinary circumstances.” (Citations omitted.)

There are no such circumstances to recommend a reconsideration here. Appellant does not allege that new facts came to light since the motions were first ruled on. To the contrary, the fact that there might have been initial damage to water pipes, such as would put the occurrence within the underground property damage hazard coverage, was set out in appellant’s affidavit filed with his motion for summary judgment.

Personal Injury Allegations

Although appellant’s third contention is totally without merit, we find his fourth persuasive.

Appellant argues that appellee is obligated to defend him because of the Newburg-Rinns’ allegation of personal injuries, loss of wages and rental income in that the insurer promised to pay for bodily injury and property damage due to covered occurrences while the collapse hazard exclusion precluded coverage only for property damage.

Although the appellee concedes the point that if there were bodily injuries it would be obligated to defend, it argues that damages for mental anguish as alleged by the Newburg-Rinns will not be awarded where there is not physical injury as well.

It is another general principle of insurance law that the duty to defend encompasses even frivolous and unfounded allegations if, as in the case at bar, a policy clause so provides. Because of the appellee’s agreement to defend any suit against the insured seeking damages "even if any of the allegations of the suit are groundless, false or fraudulent,” there is a duty to defend any claim whenever it is potentially within the policy and even though the claim has no basis in fact. As interpreted by Chief Judge Learned Hand in Lee v. Aetna Casualty and Surety Co., 178 F.2d 750, 751-752 (2d Cir. 1949, and quoted by the Court of Appeals of Maryland in Brohawn, supra, at 410, the insurer’s promise to defend even groundless allegations means that

" 'the insurer will defend the suit, if the injured party states a claim, which, qua claim, is for an injury "covered” by the policy; it is the claim which determines the insurer’s duty to defend; and it is irrelevant that the insurer may get information from the insured, or from anyone else, which indicates, or even demonstrates, that the injury is not in fact "covered.” The insurer has promised to relieve the insured of the burden of satisfying the tribunal where the suit is tried, that the claim as pleaded is "groundless.” ’ ”

The Court in Brohawn, continued, at 409-410:

"Although the type of policy here considered is most often referred to as liability insurance, it is 'litigation insurance’ as well, protecting the insured from the expense of defending suits brought against him. By clear and unequivocal language, [appellee] has assumed the obligation of relieving its insured of the expense of defending an action alleging and seeking damages within the policy coverage. Additionally, the insured could reasonably expect that the insurer will employ its vast legal and investigative resources to defeat the action for the mutual benefit of both the insurer and the insured.” (Citation omitted.)

Although appellant is not correct in his contention that the appellee is obligated to defend the entire suit, appellee is

obligated to defend that portion of the claim which related to bodily injuries. "Bodily injury,” defined in the policy as "bodily injury, sickness or disease sustained by any person . . . including death at any time resulting therefrom,” encompasses the claim of pain, suffering, and mental anguish.

For these reasons, summary judgment should have been entered in favor of appellant with respect to appellee’s obligation to provide a defense to the plaintiffs’ claims of pain, suffering, and mental anguish.

Judgment vacated; case remanded for entry of summary judgment and of a declaration in conformity with this opinion; costs to be paid by appellee.

      . This is evident from the insurance policy’s definitions of “underground property damage” and "structural property damage.”

      . It is also important to note in this regard that the insurance policy, which listed the appellant’s business as "Home Improvement Contractor,” provided coverage for plumbing and carpentry hazards as well.

      . It matters not, as appellant contends, that there was not a sudden and basic change in the character of the structure so as to be a "collapse.” as defined in other jurisdictions. See Hartford Accident & Indemnity Co. v. Crider, 392 F. Supp. 162, 169 (Ill. 1974). As explicitly defined in the insurance policy, the structural property damage excluded from coverage under the collapse hazard exclusion includes structural injury to as well as collapse of any building or structure.

      . See (3) supra, page 116.

      . Although many courts which have addressed the issue have not permitted apportionment of defense costs between the insurer and the insured, see, e.g., Tampa Elec. Co. v. Stone & Webster Engineering Corp., 367 F.Supp. 27 (M.D.Fla., 1973); Home Ins. Co. v. Pinski Bros., Inc., 500 P.2d 945 (Mont., 1972); St. Paul Fire & Marine Ins. Co. v. Hodor, 200 So.2d 205 (Fla. App. 1967), the rationale behind these authorities is that an insurer must bear the entire cost of defense only when there is no reasonable means of prorating the costs of defense between excluded and uncovered items. See National Steel Const. Co. v. National U. Fire Ins. Co., 543 P.2d 642 (Wash. App. 1975). Such a consideration is not the case here since defense costs can be readily apportioned.


author: Gilbert, C. J.,

text:
    GERALD PINKARD HARSHAW v. STATE OF MARYLAND
    [No. 166,
    September Term, 1981.]

      Decided November 5, 1981.

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

      Morris Lee Kaplan for appellant.

      Richard B. Rosenblatt, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Andrew L. Sonner, State’s Attorney for Montgomery County, and I.

      Matthew Campbell, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The sole issue raised in this appeal is whether we should "accept a reconstructed transcript” of a criminal trial "in lieu of a full transcript.”

Gerald Pinkard Harshaw was convicted by a jury (Mathias, J.) of child abuse and related offenses. After the trial, it was discovered that the court reporter had failed to perform her duties in a proper manner. Not only could she not prepare a transcript of the proceeding, but she indicated that if she did prepare one, it would be unreliable because of the emotional and physical condition she was in at the time of the trial.

As a result of the lack of a transcript, counsel for the State and for the defendant met with the defendant and the trial judge in an attempt to construct a transcript of the trial based upon the notes of the counsel, the defendant, and the judge. At the conclusion of that meeting, the judge placed an affidavit in the record reading as follows:

"I hereby certify that I have carefully examined the hearing before me on February 24,1981, for the purpose of reconstructing the record of this trial. I further certify that Mrs. Kiebler’s employment as an official reporter for this court has been terminated, but although she left what appear to be stenotyped notes of the trial, she has refused repeated requests to transcribe them and five other court reporters have tried unsuccessfully to do so.”

The question as put to us by the appellant must be answered with a resounding, "Maybe, it all depends on what the issue is on appeal.” Smith v. State, 291 Md. 125, 433 A.2d 1143 (1981).

In Smith, Judge Cole, writing for the Court, noted that "requiring the defendant to do his part in attempting to reconstruct portions of the record which are missing through no fault of the prosecution does not offend notions of criminal due process.” 291 Md. at 137.

Smith holds that the absence of a transcript, occasioned through no fault of the prosecution, does not translate, by that fact alone, into a new trial. The fortuitous loss of the transcript or loss of ability to transcribe verbatim the dialogue of a trial is not to be considered as an automatic right to a new trial. A defendant must cooperate in reconstructing the events of trial. It is not enough for him or her to sit by, refuse to assist, and then claim prejudice for lack of a transcript.

The case before us, however, is of a different type. Here, Harshaw and his counsel participated fully in the effort to reconstruct the transcript, and there is not the slightest hint that artificial road blocks were erected in order to impede the reconstruction.

The disability Harshaw claims to suffer is that given the reconstructed record, the appellate court lacks sufficient clairvoyance to pass upon the appeal intelligently. He asserts, and the record supports, that objections were made, but we are not informed as to the rulings on those objections. We may infer, however, that the rulings were adverse to Harshaw else he would not advance them on appeal.

Additionally, the appellant assails the trial court’s allowing of the testimony over objection of an expert witness. Harshaw contends that the witness should not have been accepted as an expert. Of course, whether a witness is to be considered an expert is left to the discretion of the trial judge, Consolidated Mechanical Contractors v. Ball, 263 Md. 328, 283 A.2d 154 (1971); Byrd v. State, 16 Md. App. 391, 297 A.2d 312 (1972), and absent a clear showing of abuse of that discretion, the appellate courts will not reverse on that ground. Raithel v. State, 280 Md. 291, 372 A.2d 1069 (1977); Dobson v. Mulcare, 26 Md. App. 699, 338 A.2d 898 (1975). Nevertheless, the record before us is inadequate for us to determine whether the trial court abused its discretion in permitting the witness to qualify as an expert.

An additional defect in the record is that it is devoid of the cross-examination of the prosecuting witness so that we are deprived completely of that portion of the testimony.

As an aside, although not raised by the appellant in his brief, but of some interest to us, is the lack, in the record, of jury instructions. We are particularly concerned with that because we observe in the record that there were three (3) notes from the jury to the court in which the jury asked for clarification. What took place as a result of those notes we do not know. We pose the following rhetorical questions to illustrate the dilemma confronting us. Was the fact that the notes were received by the judge communicated to counsel and the appellant? Was the jury brought back into the courtroom in order that their questions could be answered? Were exceptions taken? Were the notes simply ignored? Were they answered in writing? Did the court decline to answer the jury?

Despite the best efforts of the trial judge, the prosecutor, and trial counsel for the appellant, as well as the appellant, himself, the record that came to us from the circuit court falls short of passing muster under Smith. It is to be regretted that the court reporter was too ill to perform her duties. That illness, everyone will concede, is not the fault of the prosecution, but that provides little solace to the State or its witnesses who will have to prosecute the case again. On the other hand, the appellant’s right of appeal is meaningless unless his counsel is provided with the basic tools with which to work, namely, a transcript or one that is substantially reconstructed.

The transcript in the instant case is not attacked because of an "inadvertent omission” or misplaced notes, but rather a complete failure to transcribe any of the testimony. Under the circumstances of this particular case, we are compelled to reverse and remand for a new trial. In so doing, we make clear that we do not fault the trial judge or the prosecutor, both of whom have done all that they can reasonably be expected to do to salvage the unsalvageable.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Montgomery County.


author: Thompson, J.,

text:
    PACIFIC MORTGAGE & INVESTMENT GROUP, LTD. v. ROSE F. WIENECKE
    [No. 194,
    September Term, 1981.]

      Decided November 5, 1981.

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

      Jay Fred Cohen for appellant.

      John O. Hennegan for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Pacific Mortgage & Investment Group, Ltd., appellant, appeals from an order by Judge James H. Langrall of the Circuit Court for Baltimore County, setting aside a confessed judgment. On May 17, 1978, Rose S. Wienecke, appellee, executed a confessed judgment note promising to pay Pacific Mortgage and Investment Group, Ltd., appellant, the sum of $3,500 ninety days after its execution. On February 1, 1980, appellant filed a nar and the note in the Circuit Court for Baltimore County and a confessed judgment was entered. Although a paper writing accompanied the nar and the note, there was no affidavit as required by Md. Rule 645 a. On February 5, 1980, the sheriff served a summons on Wienecke and made his return. On March 17, 1980, a writ of fieri facias was levied on specified goods and chattels belonging to Wienecke. It was not until April 14, 1980, 69 days after service of summons, that Wienecke filed a motion, accompanied by a supporting affidavit, to set aside the judgment. On October 6,1980, Judge James H. Langrall granted the appellee’s motion to set aside judgment on the grounds of the mistake committed by the court clerk in entering a confessed judgment without requiring an affidavit to be filed.

The entry of a judgment by confession is controlled by Md. Rule 645 which provides, in part:

"a. Entry — Affidavit.
Judgment by confession may be entered by the clerk upon the filing by the plaintiff of a declaration accompanied by the written instrument authorizing the confession of judgment and entitling the plaintiff to a claim for liquidated damages and supported by an affidavit made by the plaintiff or someone on his behalf stating the amount due thereunder, and indicating the post office address (including street address if neeeded to effect mail delivery) of the defendant.”

Md. Rule 5c states the requirements of an affidavit or oath can be satisfied in one of two ways: (1) by oath before a duly authorized officer, i.e., a notary, or (2) by signing the necessary document and incorporating the following words: "I do solemnly declare and affirm under the penalties of perjury that the contents of the aforegoing document are true and correct.” In the present case, the appellant submitted a document which did not comport with either of these provisions. The paper writing contained neither a signature nor seal of a notary public and, while averring the information to be true, at no point did appellant "affirm under the penalty of perjury” the veracity of his statements. Thus no affidavit, as required by Md. Rule 645 a, was filed.

The appellant contends that as the appellee failed to raise the issue of the invalidity of appellant’s judgment within the 30 day period before judgment became enrolled, she is precluded from subsequently attacking the judgment. Subsequent to the 30 day period, the trial judge’s control of the judgment is no longer a matter of discretion but subject to a showing of "fraud, mistake, irregularity, or failure of an employee of the court or clerk’s office to perform the duty required by statute or rule.” Md. Cts. & Jud. Proc. Code Ann. § 6-408 (1974,1980 Repl. Vol.). Under Md. Rule 645 a, the court clerk has authority to enter a judgment by confession when "accompanied by the written instrument ... and supported by an affidavit.. . .” Inasmuch as no affidavit was submitted, the clerk failed in his duty to require an affidavit be filed before entry of a confessed judgment and was without authority to enter the judgment. Such error is encompassed within § 6-408.

We hold that the trial court did not err in setting aside the judgment.

Order affirmed.

Appellant to pay the costs.

      . " 'Affidavit’ means an oath that the matters and facts set forth in the paper writing to which it pertains are true to the best of the affiant’s knowledge, information and belief. An 'oath’ means a declaration or affirmation made under penalties of peijury, that a certain statement of fact is true. An oath may be made before an officer or other person authorized to administer an oath, or may instead be made by signing the paper containing the statement required to be under oath and including therein the following representation: 'I do solemnly declare and affirm under the penalties of pequry that the contents of the foregoing document are true and correct.’ Whenever under these Rules a pleading or other paper is required to be 'verified,’ this means that an affidavit must be made thereto.”

      . See, Bernstein v. Kapneck, 46 Md. App. 231, 238-40, 417 A.2d 456 (1980), aff'd. on other grounds, 290 Md. 452, 430 A.2d 602 (1981) for a discussion of term "mistake.”

      . § 6-408 superseded Md. Rule 625 a. The Court of Appeals stated in Maryland Lumber v. Savoy Construction Company, 286 Md. 98, 102, 405 A.2d 741 (1979):
      "It does, however, establish that a trial court may now revise an enrolled judgment, not only if facts and circumstances are shown to establish that the entry of the enrolled judgment resulted from fraud, mistake, or irregularity, ... but, also if it resulted from a failure of an employee of the court or of the clerk’s office to perform a duty required by statute or rule. Of course, once fraud, mistake, or irregularity, including an employee’s failure to perform such a duty has been established, the party moving to set aside an enrolled judgment must still additionally show that it is acting in good faith, with ordinary diligence, and that it has a meritorious defense or cause of action.” (citations omitted).
      The affidavit submitted by appellee in the instant case alleged that appellee was acting in good faith, with ordinary diligence, and had a meritorious defense.


author: Wilner, J.,

text:
    CHIEF, MONTGOMERY COUNTY DEPARTMENT OF POLICE v. THOMAS B. JACOCKS, JR.
    [No. 209,
    September Term, 1981.]

      Decided November 5, 1981.

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

      Bruce P. Sherman, Assistant County Attorney for Montgomery County, with whom were Paul A. McGuckian, County Attorney for Montgomery County, and Richard E. Frederick, Deputy County Attorney for Montgomery County, on the brief, for appellant.

      Daniel J. Cassidy for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellee is a police officer employed by the Montgomery County Police Department. He is therefore subject to the provisions, procedures, and protections of the Law-Enforcement Officers’ Bill of Rights (LEOBR), codified in Md. Ann. Code art. 27, § 727, et seq.

On June 13,1980, appellee received a memorandum from appellant, the Chief of the Montgomery County police department, informing him that an investigation had been conducted into an incident occurring on April 15,1980, and that, as a result of that investigation, a charge against him of "conduct unbecoming a police officer” had been "sustained.” That charge, according to the memorandum, was based on the allegation that "on 4/15/80, at approximately 0900 hours, you met with Major S. Filyo and Sgt. Bohn. You spoke to Major Filyo in a disrespectful manner constituting conduct unbecoming; that among the statements you made were the following: . . . .” There then appeared seven statements of a defiant or inelegant nature allegedly made by appellee.

The memorandum informed appellee that the administrative punishment proposed for the infraction noted was suspension without pay for two days and transfer to another unit within the department. Rather than accept that punishment, however, appellee exercised his right under the law to an administrative hearing; and one was scheduled for July 30,1980. On June 24,1980, appellant gave appellee, in writing, the names of the witnesses who would be called to testify at the hearing, as well as the members who would comprise the hearing board.

At or about this point, appellee learned that, during the course of the investigation of the matter, each of the prospective witnesses had been interviewed by the department’s internal affairs office, and that the interviews had been tape-recorded. Through counsel, appellee requested access to copies of the statements given by those witnesses who "will be called by the county in an effort to prove their case in chief’; and, when that request was denied, and the county made clear that appellee would not be allowed to see the statements even after the witnesses had testified at the administrative hearing, he filed this action in the Circuit Court for Montgomery County. See § 734 of art. 27. In his bill of complaint, he sought, among other relief, an order directing appellant to "produce for inspection and use as evidence the statements of all witnesses interviewed by the Office of Internal Affairs, in preparation for the June 13, 1980 charging memorandum and July 30,1980 Administrative Hearing of this matter.”

After a non-evidentiary hearing, the court granted a narrower form of the requested relief. Relying on the principles announced in Jencks v. United States, 353 U.S. 657 (1957), as restated in Carr v. State, 284 Md. 455 (1979), it concluded that appellee’s right to cross-examine the witnesses against him would be rendered ineffective unless he had access to their earlier statements. Although not requiring disclosure of the statements in the context of pre-hearing discovery, the court did order appellant to produce "for inspection and use as evidence at the hearing the statements to the Department of Internal Affairs of all witnesses who have testiñed at the administrative hearing on the charges brought against [appellee].” (Emphasis supplied.)

Aggrieved by that order, appellant has taken this appeal, complaining that (1) appellee has no right under LEOBR to inspect statements obtained by the internal affairs division, (2) the Jencks-Carr rules do not apply to administrative proceedings, and (3) in any event, the order was too broad. We agree with appellant that, under the circumstances in this case, the order was too broad; we do not agree, however, with his first two assertions.

LEOBR, first enacted in 1974, has been before the appellate courts of this State on a number of occasions and in a variety of contexts. Its purpose, as we said in Abbott v. Administrative Hearing Board, 33 Md.App. 681, 682 (1976), cert. den. 280 Md. 727 (1977), was "to guarantee that certain procedural safeguards be offered to police officers during any investigation and subsequent hearing which could lead to disciplinary action, demotion, or dismissal.”

The law deals with situations in which some charge or complaint is made against a police officer, or he otherwise comes under suspicion of misbehavior, and it looks to what is essentially a two-phase administrative process. The first phase involves an internal investigation to determine whether there is some substance to the complaint or suspicion. If it appears that there is, a recommendation for some disciplinary action is made. At that point, phase two begins — an adjudicatory hearing before a departmental hearing board to determine (1) whether the charge itself is valid, and (2) if so, what the punishment should be. If the board finds the officer innocent of the charge, that ends the proceeding. If it finds him guilty, it then makes a recommendation to the chief of police as to an appropriate punishment. The chief is bound by a determination of innocence, but not a proposed punishment in the event of a finding of guilt. As to that, his decision (rather than that of the Board) is final.

LEOBR contains provisions dealing with both phases. The first phase — the internal investigation — is governed by § 728(b) of art. 27. That section focuses primarily on the interrogation of the subject officer rather than on the general gathering of evidence. It sets limits on where, when, and how such an interrogation may occur. It requires that a complete record be kept of the officer’s interrogation and that a copy of that record be made available to the officer prior to the administrative hearing. It imposes no similar requirement, however, with respect to the interrogation of other witnesses — persons other than the officer under investigation. With regard to the gathering of evidence from any other source, the statute provides only that (1) upon completion of the investigation, the officer shall be notified "of the name of any witness not less than ten days prior to any hearing” (§ 728(b)(5)), and (2) the agency "may not insert any adverse material into any file of the officer, except the fíle of the internal investigation or the intelligence division, unless the officer has an opportunity to review, sign, receive a copy of, and comment in writing upon the adverse material, unless the officer waives these rights.” (Emphasis supplied; § 728(b)(12)).

The procedures relating to the adjudicatory hearing are contained in § 730. Among other things, that section provides that:

(1) The officer "shall be given ample opportunity to present evidence and argument with respect to the issues involved,” and that he has the right to counsel (subsection (b));

(2) "Evidence which possesses probative value commonly accepted by reasonable and prudent men in the conduct of their affairs shall be admissible and shall be given probative effect. The hearing board conducting the hearing shall give effect to the rules of privilege recognized by law, and shall exclude incompetent, irrelevant, immaterial, and unduly repetitious evidence. All records and documents which any party desires to use shall be offered and made a part of the record. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference.” (subsection (c)); and

(3) "Every party has the right of cross-examination of the witnesses who testify, and may submit rebuttal evidence.” (subsection (d)).

No claim was made below, and no claim is made here, that the statements given to the internal affairs office were discoverable or usable as substantive evidence under § 730(b) or (c), and we therefore have no occasion to address that issue in this appeal. Maryland Rules 1085, 1031; Jacober v. High Hill Realty, Inc., 22 Md.App. 115, cert. den. 272 Md. 743 (1974). The issue presented here, in the context both of statutory construction of LEOBR and the application of Jencks-Carr is whether discovery of the statements in question is mandated as an extension of appellee’s right under § 730 (d) to cross-examine the witnesses against him or, conversely, whether the internal investigation file is specifically privileged and thus non-disclosable under § 728(b)(12).

The statutory construction question is not especially difficult. There is nothing in LEOBR either expressly requiring or expressly denying access to statements given to the internal affairs office by persons who ultimately testify as witnesses. Although a record of the subject’s interrogation and the names of witnesses to be called at the administrative hearing are required to be disclosed, nowhere does the statute expressly require disclosure of pre-hearing statements made by anyone but the officer under investigation. On the other hand, although by implication § 728(b)(12) permits an internal investigation file to be placed in the "file of the officer” without the opportunity of the officer to review it, that section does not preclude the disclosure of pre-hearing statements taken by the internal affairs office in connection with its investigation after the witnesses have testified at the administrative hearing. The case therefore turns, entirely, on whether the Jencks-Carr principles are applicable as part of the statutory right of cross-examination at the administrative hearing.

The so-called "Jencks rule” emanates from Jencks v. United States, supra, 353 U.S. 657. The petitioner there had been convicted of falsely swearing in an affidavit filed with the National Labor Relations Board that he was not a member of the Communist Party. His conviction rested in large measure upon the testimony of two paid F.B.I. informants who described in some detail Jencks’ participation in Communist Party activities from 1946 to 1952. These witnesses had made regular written reports to the F.B.I. during that period describing, contemporaneously, the events about which they later testified; and Jencks moved, at trial, for copies of those reports. His request was denied.

Reversing the conviction, the Supreme Court rejected the notion that Jencks was required "to lay a preliminary foundation of inconsistency” in order to obtain the reports. It noted the "crucial nature” of the testimony offered by the two witnesses and the singular importance to Jencks that that testimony be impeached. It then observed, at p. 667:

"Every experienced trial judge and trial lawyer knows the value for impeaching purposes of statements of the witness recording the events before time dulls treacherous memory. Flat contradiction between the witness’ testimony and the version of the events given in his reports is not the only test of inconsistency. The omission from the reports of facts related at the trial, or a contrast in emphasis upon the same facts, even a different order of treatment, are also relevant to the cross-examining process of testing the credibility of a witness’ trial testimony.”

Building from this, the Court went on to state that, unless a testifying witness actually admits making a prior inconsistent statement, "the accused is helpless to know or discover conflict without inspecting the reports.” Id. at 668. Thus, it held that Jencks was entitled to inspect the contemporaneous reports made to the F.B.I. by the two testifying witnesses "touching the events and activities as to which they testified at the trial.” Id. "We hold, further,” it said,

"that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government’s witness and thereby furthering the accused’s defense, the defense must initially be entitled to see them to determine what use may be made of them. Justice requires no less.” Id. at 668-69.

The Jencks rule, as laid out in the Jencks Opinion, was limited to criminal cases, and, although not entirely apparent from Jencks itself, the Supreme Court subsequently made clear that the holding was not grounded so much on express Constitutional rights as on the Court’s power, "in the absence of statutory provision, to prescribe procedures for the administration of justice in the federal courts. . . .” See Palermo v. United States, 360 U.S. 343, 345 (1959). Congress very quickly supplied the absent statutory provision. Three months after the filing of the Jencks Opinion, it enacted P.L. 85-269 (71 Stat. 595 (1957), codified at 18 U.S.C. § 3500), which has since become known as the "Jencks Act,” for the purpose of defining the kinds of pretrial statements obtainable by defendants and providing a procedure for determining whether particular statements sought by the defense fall within that definition. See Palermo, supra, for a discussion of the history of the "Jencks Act.”

Maryland has no counterpart to the "Jencks Act”; our legislature has not acted in this area. By judicial decision, however, we have adopted the underlying principles set forth in the Jencks Opinion, at least with respect to criminal cases, as a necessary outgrowth of the right of cross-examination. See Carr v. State, supra, 284 Md. 455 and Leonard v. State, 46 Md.App. 631 (1980), aff'd 290 Md. 295 (1981); but compare Yuen v. State, 43 Md.App. 109, cert. den. 286 Md. 756 (1979), cert. den. 444 U.S. 1076 (1980).

Although both the Jencks "rule” and the "Jencks Act” were intended to apply (and by their terms do apply) specifically to criminal cases, they have, at least in the Federal system, been almost uniformly extended to administrative proceedings as well.

The first extension came in Communist Party of the United States v. Subversive Activities Control Board, 254 F.2d 314 (D.C. Cir. 1958). The context was an administrative proceeding before the Subversive Activities Control Board to determine whether the Communist Party of the United States was required to register with the Attorney General as a "Communist action organization,” pursuant to the Internal Security Act of 1950. As in the Jencks case, several key government witnesses were former members of the Communist Party who had become F.B.I. informants and who had supplied the F.B.I. with regular and contemporaneous written reports pertaining to the matters about which they had testified. The party, in vain, had sought to obtain copies of those reports for use in cross-examination.

The Circuit Court of Appeals, noting that the Jencks decision was grounded "upon the elementary proposition that the interest of the United States is that justice be done,” concluded that "[t]he same elementary proposition applies here and leads to the same result.” 254 F.2d at 328. "The question here,” it said, "is whether production is one of the fundamentals of fair play required in an administrative proceeding. We think it is.” Id. at 327. Thus, it held, with respect to the administrative proceeding:

". . . [W]here the Government places on the stand a witness who testifies about an event long past, and it is shown that this witness at or about the time of the event made a written report to the Government concerning that event, and the testimony is material, and the credibility of the witness in her testimony upon this precise point is attacked, the Government upon demand must produce the report made by the witness.” Id. at 328.

Both Jencks and the Communist Party case involved the situation of witnesses testifying about events occurring years earlier, and the language in the opinions pertaining to that time lag has to be viewed with that in mind. Most subsequent cases have not expressed or implied any limitation in that regard, but have merely applied the basic doctrine to administrative proceedings. See, for example, N.L.R.B. v. Adhesive Products Corp., 258 F.2d 403, 407-08 (2d Cir. 1958), and Harvey Aluminum (Incorporated) v. N.L.R.B., 335 F.2d 749, 753 (9th Cir. 1964), applying the rule to proceedings before the National Labor Relations Board; Carlisle v. Rogers, 262 F.2d 19 (D.C. Cir. 1958), and Petrowicz v. Holland, 142 F.Supp. 369 (E.D.Pa. 1956 — preJencks), involving deportation proceedings before the Immigration and Naturalization Service; Fairbank v. Hardin, 429 F.2d 264 (9th Cir.), cert. den. 400 U.S. 943 (1970), proceedings before the Department of Agriculture under the Packers and Stockyards Act; Schere v. Christenberry, 179 F.Supp. 900 (S.D.N.Y. 1959), hearing before Post Office Hearing Examiner; Augenblick v. United States, 377 F.2d 586 (Ct. Claims 1967), rev’d on other grounds 393 U.S. 348 (1969), court martial proceedings; Davis & Randall, Inc. v. United States, 219 F.Supp. 673 (W.D.N.Y. 1963), Interstate Commerce Commission proceeding. See also Silverman v. Commodity Futures Trading Commission, 549 F.2d 28 (7th Cir. 1977); Great Lakes Airlines, Inc. v. C.A.B., 291 F.2d 354 (9th Cir.), cert. den. 368 U.S. 890, reh. den. 368 U.S. 936 (1961); Moore v. Administrator, Veterans Administration, 475 F.2d 1283 (D.C. Cir. 1973); R. A. Holman & Co. v. Securities and Exchange Commission, 366 F.2d 446 (2d Cir. 1966), amended on other grounds, 377 F.2d 665, cert. den. 389 U.S. 991 (1967), reh. den. 389 U.S. 1060 (1968); L. G. Balfour Co. v. F.T.C., 442 F.2d 1 (7th Cir. 1971); Note, The Jencks Rule and Administrative Law, 68 Yale L.J. 1409 (1959); 4 Mezines, Stein & Gruff, Administrative Law, § 23.03 [7] (1977); Note, 11 Stan. L. Rev. 297 (1959).

The rationale stated for the extension of the doctrine to administrative proceedings is simple and direct. In Harvey Aluminum (Incorporated) v. N.L.R.B., supra, 335 F.2d 749, 753, the Ninth Circuit Court of Appeals put it this way:

"Prior statements of a witness relating to his testimony must be produced by the government because justice requires no less.’ [Citation omitted.] The rule applies to proceedings of the [N.L.R.B.] because 'the laws under which these agencies operate prescribe the fundamentals of fair play.’ Their proceedings must 'satisfy the pertinent demands of due process.’ ”

The Second Circuit, in Adhesive Products Corp., supra, 258 F.2d 403, 408, observed:

"In our opinion, logic compels the conclusion that these rules are applicable to an administrative hearing. [Citations omitted.] The production and inspection, and possible use for cross-examination purposes, of such a document could serve only to test the memory and credibility of the witness, while, in the absence of a claim of confidence or privilege, there can be no sound reason to bar such production.”

Extension of the Jencks principle to administrative proceedings is not limited to the Federal domain, although it is more prevalent there. Indeed, the case most analogous to that now before us was decided by a State court — Greco v. State Police Merit Board, 245 N.E.2d 99 (Ill.App. 1969). There, as here, a police officer was accused of wrongdoing and faced an administrative hearing to determine his fate. There, as here, he sought access to pre-trial written statements made by witnesses slated to testify against him, and, when refused such access, brought a proceeding in court to compel it. Referring to Jencks, Communist Party, and Adhesive Products Corp., all supra, the Illinois appellate court held, at p. 102:

"We can see every reason for requiring production of such items in state administrative proceedings as well, and can find no valid argument against such requirement. . . . Since the Board uses an adversary procedure to perform its investigation, a fair and unbiased result can obtain only if both adversaries are allowed to present a full case and are allowed to rebut the opposition. Depriving the defense of pre-trial statements of opposition witnesses who testify greatly impairs such full presentation and rebuttal and obliterates the opportunity for meaningful cross-examination. Without access to such statements, the defense is unable to test the memory, consistency, or veracity of the witnesses. In short, the best tool of cross-examination is denied the defense when pre-trial written statements are withheld.”

See also State ex rel. DeLuca v. Common Council, 242 N.W.2d 689 (Wis. 1976); Saunders v. District of Columbia, 263 A.2d 58 (D.C. 1970). Cf. Garabendian v. New York State Liquor Authority, 307 N.Y.S.2d 270 (App.Div.), motion for leave to appeal den. 311 N.Y.S.2d 1025 (Ct.App. 1970).

We find the weight of authority noted above — and, more important, the reasoning behind it — most persuasive. Administrative agencies, including LEOBR hearing boards, must observe the basic rules of fairness, and that is what the Jencks rule is all about.

We are not dealing here with a general fishing expedition through confidential files or the disclosure of confidential information. The pre-trial statements need not be disclosed until the witness has completed his testimony on direct examination, and, even then, only those portions pertaining to matters about which he testified are subject to disclosure. With those limitations, we fail to see any justification for maintaining the cloak of secrecy. Presumably, the witness has told the internal affairs office the same story he tells from the witness stand. If not, the discrepancy ought to be revealed, not only in fairness to the accused officer but also, and perhaps of equal importance, to protect the integrity of the internal affairs office and its methodology. Accordingly, we agree that the relevant portions of pre-hearing statements of witnesses called by appellant who actually testify against appellee must be produced at the hearing.

Unfortunately, the order of the circuit court went beyond that in a number of respects, which is why we think it was too broad. It directed appellant to produce for inspection and use as evidence the entire statements of all witnesses who testify at the hearing. In the first place, as Leonard makes clear, the pre-trial statements are not necessarily usable or admissible as evidence under the Jencks rule, but are disclosable to counsel only for possible use in cross-examination. Second, it is only those portions of the pre-trial statements that touch upon or concern the matters actually testified to that need be disclosed, which may be less than the entire text of the statements. Finally, only the statements made by "prosecution” witnesses — those called by the county or its agency to testify against appellee — need be disclosed.

To the extent that the order exceeded these limitations, it must be modified; and for that purpose we shall remand the case pursuant to Maryland Rule 1071.

Order affirmed in part and reversed in part.

Case remanded to Circuit Court for Montgomery County for modiffcation of order in accordance with this opinion; appellant to pay the costs.

      . See, for example, Abbott v. Administrative Hearing Board, 33 Md.App. 681 (1976), cert. den. 280 Md. 727 (1977); Widomski v. Chief of Police, 41 Md.App. 361, cert. den. 284 Md. 750 (1979); Police Commissioner v. Dowling, 281 Md. 412 (1977); Moore v. Town of Fairmount Heights, 285 Md. 578 (1979); DiGrazia v. County Executive, 43 Md.App. 580 (1979), rev’d 288 Md. 437 (1980); Commissioner, Baltimore City Police Dept. v. Cason, 34 Md.App. 487, cert. den. 280 Md. 728 (1977).

      . See 353 U.S. at 671-72.

      . Jencks’ conviction occurred in January, 1954 (see Jencks v. United States, 226 F.2d 553, 554 (5th Cir. 1955), rev’d 353 U.S. 657 (1957)), and, as noted, the relevant events took place between 1946 and 1952. Similarly, the administrative proceeding at issue in the Communist Party case occurred in 1951-52, whereas the relevant events being testified to took place in 1949.