author: Gilbert, C. J.,

text:
    CHARLES MILTON WANTLAND v. STATE OF MARYLAND
    [No. 1126,
    September Term, 1979.]

      Decided May 9, 1980.

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

      Michael R. Malloy, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Joseph C. Sauerwein, Deputy State’s Attorney for Prince George’s County, on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

The mutilated body of twelve year old Donnie Henley was found on the grounds of the Berger Mansion in Clinton, Prince George’s County, Maryland. It was evident that the youth had sustained multiple stab wounds, including one characterized as the "coup de grace, ” at the point where the skull joins the neck. It was also apparent from the autopsy that the youth’s anal orifice was abnormally dilated. The medical examiner was of the opinion that the dilation of Donnie’s anal canal was consistent with penetration in the act of anal intercourse.

Young Henley’s body was found on Sunday, June 18,1978, at approximately sixteen to eighteen hours after he met his untimely death. Death was fixed by the medical examiner, Dr. Hormez Guard, at about 6 p.m. to 8 p.m., Saturday, June 17, 1978.

Following the discovery of the Henley boy’s maimed corpse, the Prince George’s County Police Department investigated in order to ascertain the identity of the person or persons who had snuffed out the young man’s life.

The results of the police inquiry, as reflected in the transcript of the trial, disclosed that a number of witnesses placed a Charles Milton Wantland in the vicinity of the area where the deceased was last seen alive. Several witnesses reported that they had seen Henley in the company of the appellant at approximately 3:30 p.m. on Saturday, June 17, 1978. The police discovered on the mansion grounds a pile of burned clothing, an identifiable portion of which matched the witnesses’ description of what Wantland was wearing on Saturday, June 17, 1978. Three cigarette butts, all of the same brand that Wantland smoked, were found at a point approximately 40 feet from where the body was discovered. One of the butts, according to the testimony of an F.B.I. agent, bore traces of saliva indicating that an individual of Wantland’s blood type had smoked the cigarette. Wantland was questioned as to his knowledge of Henley’s activities. Subsequently, Wantland was charged with the offense of first degree murder, a sexual offense of the first degree, and carrying, openly, a deadly and dangerous weapon.

At trial the State introduced three oral statements made by the appellant. The substance of the statements was that Wantland knew Donnie and had previously had homosexual relations with him. The police were informed by Wantland that he was so drunk on the date of the homicide that he remembered nothing of it, but he felt he had committed the crime. According to the officers, Wantland said he must have used a knife from his apartment as the weapon. Five knives were recovered from Wantland’s residence; all were introduced into evidence by the State as exhibits.

The medical examiner testified that one of the knives could have been used in the perpetration of the homicide. Despite laboratory tests, no trace of blood was found on Wantland’s clothing or the knives.

A jury, in the Circuit Court for Prince George’s County (Levin, J.), convicted Wantland of murder in the first degree (Md. Ann. Code art. 27, § 407); a first degree sexual offense (Md. Ann. Code art. 27, § 464); and carrying openly a deadly weapon with the intent to injure (Md. Ann. Code art. 27, § 36 (a)). Judge Levin imposed sentences of life, life and three years, all to be served consecutively.

Wantland asserts to us that Judge Levin erred in six respects, namely:

1. admitting into evidence illegally obtained incriminating pre-trial statements;

2. admitting into evidence an in-court identification that was based on an impermissibly suggestive photographic lineup;

3. permitting the prosecutor to make improper opening comments to the jury;

4. denying a motion for judgment of acquittal inasmuch as the evidence was insufficient to sustain the convictions;

5. admitting into evidence irrelevant evidence;

6. allowing the medical examiner to give improper testimony.

We shall address each of the issues that Wantland raises in the same order they have been put to us.

I.

— THE PRE-TRIAL STATEMENTS —

During the course of the investigation into young Henley’s death, Corporal David R. Hatfield was assigned to "find anybody [in the area concerned] that could ... [furnish] either [a] positive or negative response ... [as to the identity of] a possible suspect....” Wantland, described in the transcript as "the caretaker or occupant of the Berger Mansion” was one of the persons that Hatfield was to interview with respect to the identity of the suspect.

At approximately 10:30 p.m. on Sunday, June 18, 1978, Hatfield and another police officer went to the Berger Mansion where they found Wantland. The officers requested that Wantland accompany them to the Bureau of Criminal Investigation (B.C.I.). The avowed purpose for requesting Wantland to accompany them was to learn what Wantland knew about the crime. Wantland went with the officers. When the trio arrived at the B.C.I. facility, Wantland was taken to an "Interview Room” at sometime shortly after 11 p.m. No restraints were placed upon him, and he was not given the Miranda warnings. Hatfield, during the next five hours, succeeded in getting Wantland to make a six page statement. The statement was suppressed by the circuit judge on Wantland’s motion.

Hatfield left the Interview Room at the conclusion of the interview, around 3:30 a.m., June 19, 1978. Corporal T.R. Tucker entered about one-half hour thereafter. Tucker informed Wantland that he, Wantland, was under arrest for the murder of Donnie Henley. Tucker related to the court that he "read .. . [Wantland] a waiver of rights form” and recorded Wantland’s answers to the questions printed thereon. Wantland was then handed the form to read and sign.

The printed form declared that Wantland understood the Miranda warnings. With respect to the question of whether Wantland was willing to make a statement without the presence of an attorney, Wantland responded, "No.”

Notwithstanding Wantland’s express negative reply to the Miranda litany, Tucker recounted, Wantland continued to talk. The officer questioned Wantland in order to determine whether Wantland was willing to make a statement even though counsel was not present. According to Tucker, Wantland answered that he wanted to talk.

Prior to any conversation regarding the offenses forming the gravamen of this appeal, Wantland was permitted to use the toilet facilities, as well as to purchase some cigarettes. Upon returning to the Interview Room, Wantland explained to the officer the reason for the negative response to the question on the waiver of rights form relative to counsel. He related that at the time of a prior arrest, "he made a statement to the police and it was in error and it was admitted at the time of trial. ..Wantland made clear that his objection was to making a written statement. Wantland apparently was of the belief that in order to be admissible as evidence a statement had to be in writing. Tucker did nothing to alter or correct Wantland’s misbelief, but, instead, acting on the appellant’s desire to "talk,” began his interrogation. The trial court denied Wantland’s attempt to suppress that statement.

The third oral statement was taken the following afternoon by Corporal M.K. Morrissette. Morrissette told the court that he was assigned to take Wantland to the Prince George’s County Hospital so that a physician could take samples of the appellant’s saliva and blood. While at the hospital, Wantland complained to Morrissette that no one would listen to appellant. Morrissette suggested that he would take a statement following the medical procedure.

At the completion of the sampling, Wantland was transported back to B.C.I. by Morrissette. There, prior to any questioning, Wantland was again advised of his Miranda rights. Appellant responded that he was willing to make a statement to the officer without benefit of counsel. It was clear from subsequent remarks that Wantland made the oral statement under the misconception that it could not be used against him. The circuit judge, over objection, admitted the statement into evidence.

The fourth and final statement was made by appellant to Corporal Rowzie, the coordinator of the investigation. Rowzie told Judge Levin that on July 5, 1978, he went to Prince George’s County Detention Center in order to speak to Wantland. Before there was any contact between Rowzie and the appellant, an unidentified correctional officer explained to Wantland that he was entitled to have his attorney present during any interview with the police officer. A form entitled "Detainee Waiver,” the text of which purported to be a waiver of that right, was presented to Wantland, who signed the form.

Rowzie recounted that he then advised the appellant of the full panoply of Miranda. Wantland was asked if he understood those rights, and he replied in the affirmative. According to the officer, the appellant then stated that he already had an attorney, but that he did not desire the attorney’s presence during the interview. That, of course, is precisely what he waived when he signed the form presented to him by the guard. Rowzie questioned the appellant and took an oral statement which was admitted, over objection, at trial.

— THE LAW —

Appellant asserts that each of the three statements that were received into evidence should have been suppressed because:

a) The State failed to prove a knowing and voluntary waiver since Wantland did not know that an oral statement could be used against him;

b) Each of the statements was the product of the failure of police to respect his right of cut off of questioning, a right he had asserted to Corporal Tucker; and

c) Each of the statements was the fruit of the poisonous tree, i.e., they grew out of the illegal statement to Hatfield (and appellant, assuming that the Tucker and Morrissette statements were illegal avers that those statements taint the succeeding statements).

Additionally, Wantland assails the statement to Corporal Rowzie on the basis that he did not knowingly waive his right to counsel, even assuming Miranda compliance.

MIRANDA V. ARIZONA AND ITS SIBLINGS —

In 1966, in the landmark decision of Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), the Supreme Court engrafted upon the Fifth and Sixth Amendments the prophylactic warnings now entitled "Miranda rights.” The effect of Miranda is that before any in-custody statement made by an accused in response to interrogation is admissible into evidence, the prosecution must first demonstrate that the accused was advised of the rights articulated and specified in the Miranda case and knowingly and intelligently waived those rights. The burden is on the prosecution to establish by a preponderance of evidence that Miranda rights were given and waived by the accused. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); Mulligan v. State, 18 Md. App. 588, 308 A.2d 418 (1973).

When a suspect stands upon the constitutional guarantees delineated in Miranda, the police must respect that decision. Miranda makes manifest that:

"If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise. Without the right to cut off questioning, the setting of in-custody interrogation operates on the individual to overcome free choice in producing a statement after the privilege has been once invoked. If the individual states that he wants an attorney, the interrogation must cease until an attorney is present. At that time, the individual must have an opportunity to confer with the attorney and to have him present during any subsequent questioning. If the individual cannot obtain an attorney and he indicates that he wants one before speaking to police, they must respect his decision to remain silent.” (Footnote omitted.) 384 U.S. at 473-74, 86 S. Ct. at 1627-28, 16 L. Ed. 2d at 723.

Notwithstanding Miranda’s seeming proscription of further interrogation, the Supreme Court, in Michigan v. Mosley, 423 U.S. 96, 102, 96 S. Ct. 321, 326, 46 L. Ed. 2d 313, 320 (1975), said that "literal interpretations [of that language] would lead to absurd and unintended results.” Mr. Justice Stewart, speaking for the Court in Mosley, observed that "a blanket prohibition against the taking of voluntary statements or a permanent immunity from further interrogation, regardless of the circumstances, would transform the Miranda safeguards into wholly irrational obstacles to legitimate police investigative activity... Ibid. Thus, "the admissibility of statements obtained after the person in custody has decided to remain silent depends ... on whether his 'right to cut off questioning’ was 'scrupulously honored.’ ” 423 U.S. at 104, 96 S. Ct. at 326, 46 L. Ed. 2d at 321.

On the other hand, an accused may decline to rely upon the safeguards afforded by the Fifth and Sixth Amendments. Consequently, the police may interrogate him. When that is alleged to be the situation, "[a] heavy burden rests upon the ... [State] to demonstrate that the defendant knowingly and intelligently waived his privilege[s]....” Miranda, supra at 475, 86 S. Ct. at 1628, 16 L. Ed. 2d at 724. "The courts must presume that a defendant not waive his rights; [so that] the prosecution’s burden [of showing a waiver] is great....” North Carolina v. Butler, 441 U.S. 369, 373, 99 S. Ct. 1755, 1757, 60 L. Ed. 2d 286, 292 (1979). See also Tague v. Louisiana, 444 U.S. 469, 100 S. Ct. 652, 62 L. Ed. 2d 622 (1980). Waiver is not a matter of form, but rather one of fact weighed in the light of the totality of the circumstances. Fare v. Michael C., 442 U.S. 707, 99 S. Ct. 2560, 61 L. Ed. 2d 197 (1979). See also North Carolina v. Butler, supra.

At any suppression hearing, the State must carry the onus of establishing by a preponderance of the evidence that the waiver was voluntary, knowing, and intelligent. Lego v. Twomey, supra; Mulligan v. State, supra.

(a)

The substance of appellant’s first contention is that he did not know that an oral statement could be used against him in court. His misunderstanding, he says, precluded his having made a voluntary, knowing, and intelligent waiver.

Much the same contention as that now made by Wantland was advanced to the Supreme Court of New Jersey in State v. McKnight, 52 N.J. 35, 243 A.2d 240 (1968). There, a defendant made an oral statement which was transcribed by a detective. When the transcription was completed, the accused was asked to affix his signature thereto, but he requested that he not do so until his attorney could read it. The statement was never signed. At trial the accused argued that the waiver "was not 'intelligently made’ because he thought” the oral statement could not be used against him.

Chief Justice Weintraub, for the Court, rejected that contention, observing:

"Nowhere does Miranda suggest that the waiver of counsel at the detectional stage would not be 'knowing’ or 'intelligent’ if the suspect did not understand the law relating to the crime, the possible defenses, and the hazards of talking without the aid of counsel, or if the suspect was not able to protect his interests without such aid, or, in terms of the plurality opinion in Von Moltke [v. Gillies, 332 U.S. 708, 68 S. Ct. 316, 92 L. Ed. 309 (1948)], if it was not 'wise’ of the prisoner to forego counsel or the right to silence.... However relevant to 'waiver’ of the right to counsel at trial or in connection with a plea of guilty, those factors are foreign to the investigational scene where the detection of the guilty is the legitimate aim.
Hence if a defendant was given the Miranda warnings, if the coercion of custodial interrogation was thus dissipated, his 'waiver’ was no less 'voluntary’ and 'knowing’ and 'intelligent’ because he misconceived the inculpatory thrust of the facts he admitted, or because he thought that what he said could not be used because it was only oral or because he had his fingers crossed, or because he could well have used a lawyer. A man need not have the understanding of a lawyer to waive one. Such matters, irrelevant when the defendant volunteers his confession to a friend or to a policeman passing on his beat, are equally irrelevant when the confession is made in custody after the coercion of custodial interrogation has been dispelled by the Miranda warnings. With such warnings, the essential fact remains that [the] defendant understood he had the right to remain silent and thereby to avoid the risk of self-incrimination. That is what the Fifth Amendment privilege is about.” (Citations omitted.) 52 N.J. at 54-55, 243 A.2d at 251-52.

The Fourth Circuit, in Harris v. Riddle, 551 F.2d 936 (4th Cir. 1977), when faced with an identical argument to that now before us, concluded that the officers need not correct the misapprehension of the accused. The Court stated:

"But Miranda does not put upon the police the burden of explaining the rules of evidence and the substantive criminal law. The average interrogating police officer is not capable of it. It surely would have been helpful to Harris to have had a lawyer present to explain to him the felony-murder doctrine and the admissibility of an oral confession. But police officers cannot act as counsel even if the burden were properly theirs, and it is not. When the police have fully and fairly given a suspect the Miranda warnings their duty is discharged, and we hold that they are under no further and additional duty whether or not the suspect acts wisely or foolishly or misapprehends either the facts or the law.” 551 F.2d at 938-39.

We responded in much the same vein to a contention in Greenwell v. State, 32 Md. App. 579, 363 A.2d 555 (1976) that a defendant was unable to understand the Miranda warnings because of a learning disability. Judge Powers, for this Court, noted:

"When Mr. Chief Justice Warren said for the Supreme Court in Miranda that a waiver of the right must be made 'voluntarily, knowingly and intelligently’, the Court did not mean, we take it, that the waiver must stand up under three different tests. We understand the words 'knowingly and intelligently’ to have been used to put a gloss on the word 'voluntarily’, so that for the purpose of a waiver it carries with it a connotation that the volunteer is aware that he may not be compelled to incriminate himself, but has still decided to talk. It is the fact of his decision, not the wisdom of it, for which we look. Surely the word intelligently could not have been intended to mean wisely, for who is to judge, retrospectively, the ethical wisdom of telling the truth, even when it hurts.” (Emphasis supplied.) 32 Md. App. at 587, 363 A.2d at 561.

We decline to adopt the view that Miranda requires a waiver to be wisely made. Were we to follow that path, the police would be forced into the role of counsel for an accused. Miranda does not require that an accused be apprised of the evidentiary value of a statement. The duty of the police was discharged in the instant case when Wantland understood he could remain silent, and he relinquished that privilege with that awareness. It was not incumbent upon the police to instruct Wantland, even if they were qualified to do so, as to the effect of an oral statement vis-a-vis one that is written.

(b)

Appellant next asserts that because of his expressed desire for counsel, as made to Corporal Tucker, all subsequent statements violated Miranda. This is so, Wantland says, because the police failed to respect his right to "cut off interrogation.”

Even if we assume arguendo that Wantland’s response to Tucker precluded further questioning by that officer, the statement to Morrissette and the statement to Rowzie were made at a time occurring well after the initial assertion to Tucker. Each officer testified that he, prior to renewing questioning, informed Wantland of the Miranda rights. Neither Morrissette’s nor Rowzie’s testimony was controverted. Our review of the record indicates that appellant’s rights were "scrupulously honored.” Michigan v. Mosley, supra.

Appellant would have us read Miranda and its progeny to hold that once Wantland indicated that he would not make a statement without counsel, any statement obtained thereafter is illegal. To so read Miranda would mean that we would give no cognizance whatsoever to Tague, Fare, and Butler. Those three cases, post-dating Miranda, make unmistakable that the question of waiver is one of fact to be determined from the totality of the circumstances. See also Leuschner v. State, 45 Md. App. 323, 413 A.2d 227 (1980).

Tucker’s uncontradicted testimony was that after Wantland declined to talk without counsel’s being present, Wantland continued to speak. When questioned again as to whether he wanted to make a statement without counsel, Wantland said what he meant was that he would not make a written admission. We believe the record supports a factual finding that Wantland made a valid waiver of his right to remain silent, his right to counsel, and the remainder of the Miranda panoply.

(c)

Wantland next attacks the three oral statements as being the toxic fruit of the upas tree and, hence, inadmissible.

We said, in Fried v. State, 42 Md. App. 643, 646, 402 A.2d 101, 102-03 (1979), that "the doctrine of taint, i.e., fruit of the poisonous tree, does not follow from a 'mere Miranda’ violation, c.f., Bartram v. State, 33 Md. App. 115, 163-67 [, 364 A.2d 1119] (1976), aff'd 280 Md. 616 [, 374 A.2d 1144] (1977), but applies only to confessions involuntarily obtained as by improper inducements or coercion.” (Emphasis in original.) The record in the matter subjudice does not contain any evidence of improper inducement or coercion. We observe no error in the admission of Wantland’s statements.

(d)

Appellant’s final assault on the admission into evidence of his statements focuses solely on the statement that he made to Corporal Rowzie in the Prince George’s County Jail. Wantland argues that the statement to Rowzie is invalid because counsel had been appointed for Wantland at the time the statement was made. He asserts that under Massiah v. United States, 377 U.S. 201, 84 S. Ct. 1199, 12 L. Ed. 2d 246 (1964), "the bare-bones Miranda warnings given ... by ... Rowzie” were insufficient to apprise him of his rights, and any purported waiver thereof was ineffective.

The Court of Appeals, in Watson v. State, 282 Md. 73, 382 A.2d 574, cert. denied, 437 U.S. 908 (1978), aff'g 35 Md. App. 381, 370 A.2d 1149 (1977), after considering the effect of Brewer v. Williams, 430 U.S. 387, 97 S. Ct. 1232, 51 L. Ed. 2d 424 (1977) under its prior holding in State v. Blizzard, 278 Md. 556, 366 A.2d 1026, rev’g 30 Md. App. 156, 351 A.2d 443 (1976), held that a "bare-bones Miranda warning” is sufficient to support a waiver of the right to counsel.

II.

Wantland next directs his barrage upon identifications of him that were made by two witnesses. Appellant alleges the identifications were the result of an impermissibly suggestive photographic lineup. It is unnecessary for us to resort to the detailed analyses required by Neil v. Biggers, 409 U.S. 188, 93 S. Ct. 375, 34 L. Ed. 2d 401 (1972); Foster v. State, 272 Md. 273, 323 A.2d 419, cert. denied, 419 U.S. 1036 (1974); and Dobson v. State, 24 Md. App. 644, 335 A.2d 124, cert. denied, 275 Md. 747 (1975), because appellant has set forth no factual basis for his assertion of suggestiveness. Our own review of the array does not disclose any impermissibleness.

III.

Because the prosecutor, in his opening argument, improperly referred to the Hatfield statement, which had been suppressed by the trial court, Wantland perceives reversible error in the trial judge’s refusal to order a mistrial. Comi v. State, 26 Md. App. 511, 338 A.2d 918, cert. denied, 276 Md. 740 (1975).

Judge O’Donnell, in Wilhelm v. State, 272 Md. 404, 411-12, 326 A.2d 707, 714 (1974), said for the Court of Appeals:

"The primary purpose or office of an opening statement in a criminal prosecution is to apprise with reasonable succinctness the trier of facts of the questions involved and what the State or the defense expects to prove so as to prepare the trier of facts for the evidence to be adduced. While the prosecutor should be allowed a reasonable latitude in his opening statement he should be confined to statements based on facts that can be proved and his opening statement should not include reference to facts which are plainly inadmissible and which he cannot or will not be permitted to prove, or which he in good faith does not expect to prove. An opening statement by counsel is not evidence and generally has no binding force or effect. To secure a reversal based on an opening statement the accused is usually required to establish bad faith on the part of the prosecutor in the statement of what the prosecutor expects to prove or establish substantial prejudice resulting therefrom. Clarke v. State, 238 Md. 11, 19-20, 207 A.2d 456, 460 (1965); Ott v. State, 11 Md. App. 259, 266, 273 A.2d 630, 634, cert. denied, 262 Md. 748 (1971).” (Emphasis supplied.)

Wantland has demonstrated neither prejudice to him, nor bad faith on the part of the prosecutor. Moreover, the jury-was properly cautioned that counsel’s- argument was not evidence. Judge Levin did not abuse his discretion in refusing to order a mistrial.

IV.

From the barrage on the alleged error in not granting a mistrial, Wantland turns his field of fire to the judgment resulting from a violation of Md. Ann. Code art. 27, § 36 (a), carrying a deadly weapon openly with intent to injure. He states that the only testimony on the point was that of Aliscia Baker. She said that a man, identified by others as Wantland, that she had seen on the road near young Henley prior to the murder, had an object that "looked like an army knife.” The appellant points out that in her original statement to police, Ms. Baker made no reference to a knife.

Ms. Baker’s failure to refer to the knife in her original version goes to the weight of her evidence, not its admissibility. The jury was free to believe Ms. Baker’s testimony or to reject it. If they chose to believe it, as they obviously did, they could infer from that evidence, coupled with the fact that young Henley was stabbed and his throat was cut, that the appellant did carry a knife with the requisite intent to injure. In our view the evidence was sufficient to permit the jury to find that Wantland was guilty of violating Md. Ann. Code art. 27, § 36 (a) beyond a reasonable doubt.

V.

Penultimately, Wantland sees something insidious in the testimony of the medical examiner that a knife, obtained in a search of the Berger Mansion, could have been used to kill the victim. Appellant maintains that the knife was never "connected to the alleged murder” and is, therefore, irrelevant. We shall not consider the relevancy vel non of the knife inasmuch as, subsequent to the doctor’s testimony, the knife was admitted into evidence without objection. The failure to object constitutes a waiver of the issue. Yet, were the matter properly before us, we would hold that even if the admitted testimony was erroneous, it was harmless beyond a reasonable doubt. Dorsey v. State, 276 Md. 638, 350 A.2d 665 (1976).

VI.

Ultimately, Wantland takes aim on the testimony of the medical examiner, Dr. Hormez Guard. Appellant asseverates that it was error for the trial judge to allow the doctor "to testify that it was a reasonable probability that certain things could have happened.” (Emphasis in original.) Appellant thinks that the doctor should not have been permitted to testify that sodomy could be the cause of the dilation of the victim’s anus, nor that the knife exhibited to him could have caused the injuries.

It is well established that in this State a medical expert is not required to express his opinion with an absolute certainty, but only with a reasonable probability. Andrews v. Andrews, 242 Md. 143, 152, 218 A.2d 194, 200 (1966).

A medical expert is not limited to expressing his opinion as to what actually did happen; he may opine, based on a reasonable medical certainty, that which could have happened, provided, of course, that there is sufficient evidence of a causal connection. See Hughes v. Carter, 236 Md. 484, 486, 204 A.2d 566, 567-68 (1964). It was for the jury to find, based on all the evidence, whether sodomy did occur, and whether a particular knife was used in the slaying. We perceive no error.

Judgments affirmed.

Costs to be paid by appellant.

      . The Berger Mansion was owned by the County and operated as a CETA (Comprehensive Education and Training Act) Project.

      . According to Dr. Guard, the victim was not a "habitualistic sodomistic receiver.”

      . See n. 1, supra.

      . Hatfield testified that Wantland was not under arrest. That statement does not comport with Miranda.

      5. In addition to rejecting the claim on the legal basis, the court also rejected the claim as a matter of fact, labeling it "absurd.”

      . The statement to Morrissette was more than twelve hours after appellant’s "cut off” articulated to Corporal Tucker. The statement to Rowzie occurred after a lapse of sixteen days following the Wantland-Tucker episode.

      . As we indicated before, appellant assumes that each of the other statements was also illegal and taints all succeeding statements. In view of our rulings on the Tucker and Morrissette statements, we need not consider the point.


source: Caselaw Access Project

author: Couch, J.,

license: Public Domain

text:
    BRUCE HAMER BERRET v. BESSIE MENDENHALL ALLEN
    [No. 1128,
    September Term, 1979.]

      Decided May 9, 1980.

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

      Dwight E. Thomey, with whom was Walter M. Baker, P.A. on the brief, for appellant.
    No brief or appearance for appellee.
   Couch, J.,

delivered the opinion of the Court.

Bruce Hamer Berret and County Banking and Trust Company, appellants, appeal from an order of the Circuit Court for Cecil County denying them the right to mortgage or sell portions of a farm held in trust by the Bank for the benefit of Berret.

By a will executed in 1949 Nora B. Mendenhall, Berret’s grandmother, bequeathed to Bruce Berret and his mother, Bessie Mendenhall Allen, as joint tenants with right of survivorship, an 8.32 acre portion of the farm. The rest of the farm property was bequeathed to the legatees named in the residuary clause of the will, which provided:

"Fourth: All the rest, residue and remainder of my said estate shall be distributed among my children in equal shares, who are Howard, Joseph, Lavinia, Mary, Bessie and the share to which Abe would have been entitled to, if he were living, I give to his children, Abe and Angeline.”

In 1958 Nora B. Mendenhall, by codicil to her earlier will, provided:

"After my decease my grandson, Bruce Hamer Berret, is to have the farm. ... I want this as a trust... until Bruce reaches 45 (forty five) years old. . . .
The farm taxes, upkeep of the farm, the homes, the debts are to be paid before the proceeds are paid to Bruce Hamer under the trust; otherwise, the farm would have to be sold. It cannot be sold without the approval of the trustee. Bruce Hamer is not to sell the silver, antiques, etc.... If the farm ever has to be sold before Bruce Hamer reaches the age of 45 the money is to be invested and Bruce Hamer is to have the interest until he becomes 45.”

Bruce’s mother was named trustee in the codicil. In 1959 Mrs. Mendenhall died. Subsequently, in 1963, a dispute arose between Bruce and his mother and this resulted in her replacement as trustee and the appointment of the County Banking and Trust Company in her stead by the Circuit Court for Cecil County. Bruce managed the farm until 1973 or 1974, when the trustee began an active role in the management. The record discloses that the farm has been unable to produce sufficient income to support Bruce and his family so that he has had to obtain a job off the farm. Because of his inability to mortgage or sell all or part of the farm, and in an effort to make the farm productive, Bruce has invested his own money to the extent of some forty thousand dollars. Furthermore, the trustee is just about breaking even for its efforts.

In view of this situation Bruce and the trustee agreed upon a plan whereby a portion of the trust property would be developed as residential property, which would require the initial outlay of money for subdivision expenses and thus the need for a mortgage. The trustee, however, was unwilling to proceed without court approval, which precipitated the instant petition for such approval. The chancellor, in denying the relief sought, stated in part:

"The language of the will brings the court to conclude that the testatrix did not contemplate any voluntary sale of the farm during the trusteeship. ... Neither the Beneficiary nor the Trustee have any power to sell it. ... The Court is not persuaded from the testimony offered that the proposed alternative of selling some of the property with the inherent speculative risks in developing real estate is either in keeping with the wishes of the testatrix or that the Beneficiary would be proven to be any better off.”

Finally, the chancellor refused to answer the question raised by appellants — whether the beneficiary had a fully vested interest. On appeal appellants argue:

"I. Mr. Berret, as beneficiary of the Trust created by the codicil of Nora Bell Mendenhall, is entitled to a declaration and clarification of his status under said codicil.
II. Mr. Berret’s interest in the Trust property is fully vested.
III. The Trustee was granted the power to sell the corpus of the Mendenhall Trust, either by express or by implied grant.
IV. The Trustee possesses the power to mortgage the corpus of the Trust.”

We need only address the first argument, that the beneficiary of the trust is entitled to a declaration and clarification of his status under the codicil, to dispose of this appeal. Berret, in his petition, requested the court to declaré his interest in the trust property as vested and that upon his arrival at age forty-five the trust property would vest in his possession. The chancellor, having denied the request to sell the property, deemed it unnecessary to address the question of Berret’s interest in the corpus. We, however, believe that question to be critical to the chancellor’s consideration of this matter.

In reviewing the record we have discovered a good bit of confusion as to the possibility that other persons, not named in the petition, have an interest in the present proceedings. The petition avers:

"3. It will be noted from the Will and the First Codicil thereto, that the said Bruce Hamer Berret is the tenant for years of said property until arrival at forty-five years of age. Though the Will is silent, your Petitioner is of the opinion that the Testatrix intended that Bruce Hamer Berret would become the absolute owner of said property when he reaches forty-Bve years of age on April 7, 1983.” [Emphasis added.]

The codicil does not dispose specifically of the remainder in the farm. While the codicil states that Berret "is to have the farm”, which possibly could be construed as an absolute grant of the fee simple interest in the farm, that language is qualified by the next sentence, "I want this as a trust ... until Bruce reaches 45 (forty five) yrs. old.” Two interpretations may be placed upon this language. Construing the will and codicil together as one instrument and giving meaning to every part of the will and codicil, see Lederer v. Safe Dep. & Tr. Co. of Balto., 182 Md. 422, 35 A.2d 166 (1944); Hutton v. Safe Dep. & Tr. Co. of Balto., 150 Md. 539, 133 A. 308 (1926), one could find that upon the termination of the trust when Berret reaches age forty-five the farm would then vest in the residuary legatees named in the will since it could be said that the residuary clause of the will is not clearly overridden by the terms of the codicil. A second interpretation is that a trust was created, and upon its termination appellant, Bruce Hamer Berret, is to take the fee simple interest in the farm. This interpretation conceivably could be based upon a finding that the provisions of the codicil are so inconsistent with the will that the two cannot stand together. See Johns Hopkins University v. Pinckney, 55 Md. 365 (1881).

We think it apparent that if the residuary clause disposes of the remainder, and the resolution of this issue is best left to the chancellor, then those persons who are named in it have a vital concern in appellant’s request for a declaration of his rights in respect to the trust under Md. Cts. & Jud. Proc. Code Ann. § 3-408 (1980 Repl. Vol.). § 3-405 (a) (1) of the Courts and Judicial Proceedings Article provides: "If declaratory relief is sought, a person who has or claims any interest which would be affected by the declaration, shall be made a party.” It has been held that in an action for a declaratory judgment, all persons interested in . the declaration are necessary parties, Maryland-National Capital Park & Planning Comm’n v. Washington Nat’l Arena, 30 Md. App. 712, 354 A.2d 459 (1976), and in the instant case the persons named in the residuary clause of the will should be made parties. Accordingly, we shall remand so that those persons named in the residuary clause, if living, can be made parties to the present suit and the chancellor can completely determine the respective interests in the trust corpus.

We shall not address appellant’s issues III and IV which concern the trustee’s power to sell and encumber the trust corpus. A reading of the codicil clearly shows no express power given the trustee to either sell or encumber the corpus of the trust; at best this power may be implied. In our view the resolution of the matters raised in these issues hinges upon an initial determination of the rights and interests of the residuary legatees vis-a-vis the rights and interests of the cestui que trust, Bruce Hamer Berret.

Decree vacated and case remanded for further proceedings consistent with this opinion.

Costs to abide the result.

      . We note appellants named Bessie Mendenhall Allen, mother of Bruce, as defendant but no effort was ever made to serve her.


author: Lowe, J.,

text:
    RANDOFF PRESTON NEAL v. STATE OF MARYLAND
    [No. 1140,
    September Term, 1979.]

      Decided May 9, 1980.

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

      Garland E. Lowe, with whom were Hal I. Lackey and Coggins, Harman, Lackey & Lowe, P.A. on the brief, for appellant.

      William H. Kenety, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William Hymes, State’s Attorney for Howard County, and Bernard A. Raum, Senior Assistant State’s Attorney for Howard County, on the brief, for appellee.
   Lowe, J.,

delivered the opinion of the Court.

In Dill v. State, 24 Md. App. 695 (1975), we held that the common law crime of "indecent exposure” in Maryland had been supplanted by the 1967 express inclusion of that act in Md. Code, Art. 27, § 122 as a disturbance of the public peace. We reasoned that the Legislature could hardly have intended to permit the punishment of the common law crime, limited only by constitutional restriction upon judicial discretion, to remain when its maximum penalty for the statutory crime requiring the same proof as the common law crime, was merely $50 in fine. Id. at 705.

Three years later (1977) the Legislature, which is presumed to know of, and act upon, our construction of its statutes, Gibson v. State, 204 Md. 423, 432 (1954), amended the disturbing the peace statute to exclude the indecent exposure language. By use of the same bill — ch. 384, Laws of Md. 1977 — the Legislature provided that:

"Every person convicted of the common-law crime of indecent exposure is guilty of a misdemeanor and shall be punished by imprisonment for not more than three years or a fine of not more than $1,000, or both,”

and codified it as Md. Code, Art. 27, § 335A.

Appellant was convicted by a jury in the Circuit Court for Howard County of indecently exposing himself on April 5, 1978, and was sentenced under § 335A to three years imprisonment. His complaint to us is that no crime of indecent exposure existed in Maryland on that date, but he is wrong.

He reasons that the statutory repeal of the common law was itself repealed, thus leaving a void in that context; however, he misconstrues the principle applied in Lutz v. State, 167 Md. 12 (1934): When a statute abrogating a principle of the common law is repealed, the common law principle is revived. 73 Am. Jur. Statutes § 384 (1974); 15A C.J.S. Common Law § 126 (1967). This principle is clearly applicable here. The Legislature not only repealed the language of the statute which we declared had abrogated the common law crime, in the same act it provided the penalty for conviction of "the common law crime”. Even without the revival principle to guide us, the express intent of the Legislature is unmistakable. In addition to expressly providing the conviction of the "common law crime of indecent exposure” as a prerequisite to punishment, the Legislature could hardly have been expected to specify its intent to revitalize that which it had neither begat nor knowingly laid to rest. Cf. Lutz v. State, 167 Md. at 15. By alluding to the common law crime, however, its understanding and its intent were manifest.

Appellant alternatively argues that because ch. 384 contains a preamble purporting to state the legislative intent of the act as being

"... to define the distinction between the disorderly conduct form of indecent exposure and that type of indecent exposure which is viewed as not merely a nuisance to society as a matter of course but which is also offensive, alarming or harmful to an individual member of that society.
The legislation prohibits overt conduct; actual exposure under circumstances in which would be offensive or alarming; yet, the law does not prohibit 'exposure’ in places which are designed for that type of activity,”

that which was enacted as § 335A is unconstitutionally vague. But the law is clear; the preamble is not an operative portion of that law, National Can Corp. v. Tax Comm., 220 Md. 418, 439 (1959), appeal dismissed, 361 U.S. 534 (1960), notwithstanding that it may be resorted to as a statutory construction aid when a statute needs construing. Dillon v. State, 277 Md. 571, 583 (1976).

Chapter 384’s preamble, if read out of historical context, confuses rather than aids. The legislative history, however, clearly indicates how a seed planted in the Legislature as an original bill germinates by exposure and once grafted with amendments matures to a clearly defined purpose often bearing fruit decidedly different in appearance than that from which the original seed had been taken.

Chapter 384 began as House Bill 92, the purpose of which was described in its title as

"prohibiting certain acts commonly known as indecent exposure; and providing for a penalty upon conviction.”

The substance of the bill was bifurcated first describing the crime as a more prurient one than that envisioned by the disorderly conduct law,

"(A) A PERSON IS GUILTY OF A MISDEMEANOR IF, WITH INTENT TO AROUSE OR GRATIFY THE SEXUAL DESIRE OF ANY PERSON, INCLUDING THE ACTOR, HE EXPOSES HIS GENITALIA OR PERFORMS ANY OTHER SIMILAR ACT UNDER CIRCUMSTANCES IN WHICH, IN FACT, HIS CONDUCT IS LIKELY TO BE OBSERVED BY A PERSON WHO WOULD BE OFFENDED OR ALARMED,”

and a punishment more fitting:

"(B) THE COURT MAY IMPOSE UPON A PERSON CONVICTED UNDER THIS SECTION IMPRISONMENT FOR NOT MORE THAN FIVE YEARS, A FINE NOT TO EXCEED $5,000, OR BOTH.”

The preamble obviously indicated that the original bill sought to distinguish sexual deviance from disgusting slobbery by proof of intent. A greater deterrent was provided the former by more substantial sanctions.

The Judiciary Committee, however, chose to address the problem more pragmatically by reviving the common law crime and thus making proof of the crime less difficult without the added.element of intent. It also compromised the penalty limitation. The bill was so amended by repealing and reenacting the disturbing the peace law by striking from it the reference to indecent exposure. It then struck out the substance and title of the original bill and substituted the present § 335A (set forth above) which the title described as

"specifying a penalty for persons convicted of the common law crime of indecent exposure.”

The preamble, though no longer applicable, was, as we have indicated, not an operative portion of the law and, although it no longer explained the effect of the bill as amended, it still reflected the purpose for which it had been introduced. While somewhat confusing when now read out of that context, the Legislature, nonetheless, must have felt that it served to tell a sentencing judge that despite the nature of the change in the substance of the original bill, an exposure with prurient intent is an aggravated offense as opposed to the non scienter nuisance variety, and implies that the judge sentence accordingly.

The motion to dismiss was properly denied and it follows that the trial judge’s instructions were not in error as appellant contends, since as he indicated in his brief, the grounds for appellant’s objections to them were the same as those he argued for dismissal.

His final complaint is also somewhat related. He contends that the trial judge erred in denying his request to read and argue to the jury the Preamble to ch. 384. Presumably relying upon the almost unique Md. Const, art. XV, § 5, that:

"[i]n the trial of all criminal cases, the Jury shall be the Judges of Law,”

appellant contends

"that when the trial court refused to permit counsel to read and argue the Preamble [of Md. Code, Art. 27, § 335A] to the jury, it denied appellant his constitutional rights of having the jury hear and decide the law as well as the facts of the case (Article 23 Declaration of Rights) [sic] and whether or not the law should be applied to the facts of the case. Further, the appellant was deprived of the opportunity to put forth to the jury the legal theories contained in Argument I of this brief: that the crime did not exist, that the charging document did not state an offense and that the law was vague and therefore void.”

We have little difficulty with appellant’s complaint regarding his right to argue either the unconstitutionality or the nonexistence of the crime. The Court of Appeals, as well as this Court, have long since laid that issue to rest.

"' ... Maryland’s constitutional provision making the jury in criminal cases 'the Judges of Law’ does not mean precisely what it seems to say.’ The conception is not without limitation including exceptions added by statute and others carved out by judicial construction. Giles v. State, 229 Md. 370, 382-386. As early as 1858 it was held that juries had no right to pass upon• the constitutionality of a statute and that it was proper for the trial court to prohibit counsel from arguing that question before the jury. Franklin v. State, 12 Md. 236. In Slymer v. State, 62 Md. 237, 241 the Court of Appeals stated that not only was it a court function to
'pronounce on the sufficiency or insufficiency of the evidence to establish the bringing of the law into operation, it is evident, that whether the law has operative existence or not is a preliminary question for the Court, and the evidence offered is really evidence to the Court on which it pronounces and not the jury. If it were otherwise ... we might have the anomalous state of things of one jury finding the law operative and the traverser guilty; and another jury finding the law had not been adopted, and for that reason acquitting the accused. Reason and necessity alike require stability in the law.’
It is but a short step to reason that that which is not within the aegis of the jury is not subject to argument before them.” Samson v. State, 27 Md. App. 326, 336 (1975) (emphasis added).

Slightly more troubling is his simple phrase contending that he was deprived of the right to have the jury "decide the law” and "whether or not the law should be applied to the facts of the case”. After reviewing the entire record we assume from his comments at the end of the State’s case that he wished to argue to the jury that which he had asserted to the court, i.e.,

"the statute, as enacted by the legislature, requires something more than the common law crime of indecent exposure, in that, it specifically introduces elements like alarming, harmful — I forget the other words; however, the State in its direct case has not entered it as a[n] offense to comply with any of those elements, that it was in any way harmful, offensive, alarming, there was no direct testimony to that and, therefore, we’re unable to distinguish is this the kind of indecent exposure which is merely a nuisance or is, in fact, the greater degree, which is alarming and harmful.”

But we have pointed out above that the language of the statute is clear and unambiguous. A jury in a criminal case has no greater prerogative as judge of the law than would the court have had sitting without a jury and it is axiomatic that where a statute is clear and unambiguous no other indicia of intent or meaning need be considered.

" '[W]here statutory language is plain and free from ambiguity and expresses a definite and sensible meaning, courts are not at liberty to disregard the natural import of words with a view toward making the statute express an intention which is different from its plain meaning.’ ” Wheeler v. State, 281 Md. 593, 596 (1977), quoting Purifoy v. Merc.-Safe Dep. & Trust, 273 Md. 58, 66 (1974).

See also State v. Berry, 287 Md. 491, 496 (1980); Coleman v. State, 281 Md. 538, 546 (1977); State v. Fabritz, 276 Md. 416, 421-422 (1975), cert. denied, 425 U.S. 942 (1976). We have held here that the statute is so clear and unambiguous as not to be subject to interpretation. That which appellant seeks then, is not a right to interpret an obscure statute but to misinterpret a clearly written one. Furthermore, he admitted that no problem existed at all with the common law crime definition of indecent exposure, and even admitted that the State had made out a prima facie case therefor. He wished only to read the Preamble of ch. 384, and argue alternatively, that the statute meant other than it clearly appeared or that it meant nothing.

Appellant relied upon Dillon v. State, supra, which held that a judge, having read the preamble of the handgun statute to a jury, was not in error. The Court added by way of dicta, that either counsel might have done the same. That result, however, was predicated upon the jury’s right to construe dichotomous statutory offenses in a dubious factual situation.

Appellant’s purpose in reading the preamble to the jury was not intended as a "means of enlightenment”, Slansky v. State, 192 Md. 94 (1949), but solely to serve as an aid in the construction of the statute. But this he had no right to do because, while

"[a] preamble may be resorted to in aid of construction of a statute if its meaning is doubtful ... a preamble forms no part of the act itself... and the intention and meaning of the Legislature are to be collected from the law itself and are not to be restrained by anything in the preamble . . . .” Gibson v. State, 204 Md. at 432.

It is apparent that neither Dillon nor any other case of which we are aware permits counsel to argue a statutory construction contrary to the clear meaning of an unambiguous statute. To read a preamble of a statute directed toward punishment for the crime but not the substance of it would not be relevant to the jury’s function of determining guilt or innocence as opposed to the preamble’s purpose as a guide toward sentencing.

Academically, and even practically, since we cannot look behind jury verdicts, it may be said that a jury as judge of the law is not restrained by our interpretation even of the constitutional law which provides the jury with legal interpretative authority, i.e., art. XV, § 5 itself. Assuming that premise for argument sake (i.e., that court opinions cannot restrict the jury’s scope of interpretation), courts can restrict that which is presented to the jury by argument or evidence. Clarke v. State, 238 Md. 11, 20 (1965). Evidence or argument intended to misconstrue a succinct and clearly written statute would (in this court’s opinion) be improper, since art. XV, § 5 does not confer upon a jury the right to enact new law or ignore existing law. See Hamilton and Fletcher v. State, 12 Md. App. 91 (1971), aff'd 265 Md. 256 (1972). The provision which was intended at most to provide that juries in criminal cases were

"not bound to abide by the interpretation of the court of the meaning of a law, but were free to construe and apply it according to their own judgments,” Franklin v. State, 12 Md. at 246,

simply means that their verdicts may be rendered unaccountably (as far as defendants are concerned) for any reason they choose, legal or factual. It does not bestow upon counsel (or the court) the right to mislead them in arriving at these verdicts.

Appellant was properly convicted under a clear law after a fair trial.

Judgment affirmed.

Costs to be paid by appellant.

      . He is also wrong when he argues that the charging document was defective because he was charged with violating § 335A by indecently exposing himself rather than violating the common law. The statute referred to, however, apprised him that he could not be punished unless he was convicted of the common law offense. The charging document complied with Md. Rule 711.

      . The common law crime’s existence is not affected by the statutory penalty limitation. Darby v. State, 3 Md. App. 407, 412-413 (1968), cert. denied, 251 Md. 748 (1968), cert. denied, 393 U.S. 1105 (1969).

      . In Van Meter v. State, 30 Md. App. 406, 407-408 (1976), cert. denied, 278 Md. 737 (1976), we declined to consider questions raised but neither argued by reason nor supported by authority. We have no such sanction to apply to the State in a similar situation here but to express our regret that counsel’s one paragraph opinion without citation or reasoning was of no help to us at all on a difficult issue.

      . "Since, under Article XV, Section 5 of our Constitution, a jury 'as Judges of the Law,’ is free 'to construe La statute] and apply it according to their own judgments,’ Franklin v. State [12 Md. 236 (1858)], supra, and since the jury also has the right 'to decide whether the law should be applied in dubious factual situations,’ Hamilton [and Fletcher] v. State, [12 Md. App. 91 (1971), aff’d 265 Md. 256 (1972)] supra, we think that a reading to the jury of the 'Declaration of Policy,’ which the Legislature set forth as its preamble, in enacting the 'handgun’ statute, constituted, as an advisory instruction, 'a means of enlightenment,’ Slansky v. State, [192 Md. 94 (1949)] supra, in assisting the jury in understanding and construing the provisions of Art. 27, § 36B, and in determining whether the accused came within the operation of that penal statute.
      This concept is here applicable with even greater force when the apparent dichotomous nature of the two sets of charges submitted to the jury for its verdict is considered. The appellant was charged in counts 1 and 7 with the felony of robbery 'with a dangerous and deadly weapon, to wit, a pistol,’ in violation of Code (1957, 1971 Repl. Vol.) Art. 27, § 488; counts 5 and 12 charged that he 'unlawfully did use a handgun, to wit, a pistol, in the commission of a felony’ (robbery), in violation of the newly enacted Art. 27, § 36B. To the average layman serving as a juror, counts 1 and 5, as well as counts 7 and 12, when read together as pairs, would appear to charge the appellant, though on different dates, with the very same offense. Counts 1 and 5, and the parallel counts, 7 and 12, contained elements common to each, i.e., the use of a pistol in the commission of the felony of robbery, and it is not at all difficult to envision that a jury, unless specifically instructed, might consider the paired offenses to be identical, though charged in separate counts,” Dillon v. State, 277 Md. 571, 583-584 (1976) (footnote omitted).

      . Ironically, Slansky v. State, supra at 107, states:
      "When an advisory instruction has been given, the judge may prevent counsel from arguing contrary to the instruction. Bell v. State, 57 Md. 108.”
      Such seems no longer to be the law. See Wilson v. State, 239 Md. 245, 256-257 (1965), holding that Slansky and Bell have been superseded by Rule 6 (e) (later Rule 739 e and now Rule 757 g), although the "judge may express dissent from counsel’s statements as to the law ....”


author: Wilner, J.,

text:
    WEINBERG REALTY CO., INC. v. THE HARFORD MUTUAL INSURANCE COMPANY
    [No. 1147,
    September Term, 1979.]

      Decided May 9, 1980.

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

      Peter Parker, with whom were White, Page & Lentz on the brief, for appellant.

      V. Timothy Bambrick, with whom were George M. Radcliffe and Niles, Barton & Wilmer on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant seeks to recover under a fire insurance policy for fire damage done to one of its rental properties on Christmas Day, 1976. The case involves the interplay between two "conditions” stated in the policy.

The basic facts are not in dispute. The property, a rowhouse in Baltimore City, had been owned by appellant since 1962 and, except for a one-month period in March, 1974, had been continuously occupied by tenants. During the 1974 vacancy, there were two fires in the property — one on March 20, 1974, the other ten days later; but neither caused substantial damage. In both cases, the City Fire Investigation Bureau concluded that the fire was caused by mischievous children who had managed to get into the house. With respect to the March 20 fire, the Bureau’s report stated: "Investigation disclosed that building was in a condition open to trespassers” and that the fire erupted from the burning of trash in the first floor rear. The second fire also started from the burning of trash, in the second floor front.

On November 15,1976, appellant evicted the then-current tenant for nonpayment of rent. At that time, the property was in a deteriorated condition and had 54 outstanding housing violations charged against it, including, among many other things, broken windows and doors.

The violation notice was issued by the City on November 4, 1976. Appellant’s president, Raymond Weinberg, said that he did not receive the notice until after November 15, but that at some point toward the end of November, he went to the house "to make sure it was locked up and it was clean.” When leaving the house, he locked the front door but did not check the rear basement door except to drive around the back and see from his car that it was closed. He said that the building was clean — "[i]t was cleaned of everything. Nothing was there.”

Appellant had a repairman — one Edward Cooley — who, for 12 years, had done its repair work. Mr. Weinberg said that he intended to have Mr. Cooley fix the place, correct the violations, after "the first part of the year.” Aside from seeing that the front door was locked (and believing that the back door also was locked), nothing was done to secure the property during the expected vacancy period — i.e., until Mr. Cooley would commence the repairs. The property was not boarded up, nor was it regularly inspected. Mr. Weinberg did not return to the property after his November visit and did not ask Cooley or anyone else to secure or watch it.

The fire that triggered this lawsuit — on December 25, 1976 — was a substantial one. The Fire Investigation Bureau concluded that it was probably the result of "malicious burning by vagrants.” The Bureau’s report states, in part:

"Fire apparently originated in 1st floor, front room and was probably initiated by vagrants using house for shelter who had built a fire for heat. Building has had two (2) previous fires, no repairs made, and lies open to public and elements.”

At the time of the Christmas fire, the property was insured by appellee on behalf of the Maryland Joint Insurance Association (see Md. Ann. Code art. 48A, § 478C), under what is referred to as the "standard 165-line New York fire insurance contract,” to which were appended four endorsements. The face amount of the coverage was shown as $14,000 (having been raised from $10,000 in May, 1973). In the opening clause of the policy, appellee agreed to insure the property against direct loss by fire (and other perils) "to an amount not exceeding the amount(s) above specified [i.e., $14,000] ... to the extent of the actual cash value of the property at the time of loss, but not exceeding the amount which it would cost to repair or replace the property with material of like kind and quality....”

On page two, in lines 28-37, the policy set forth certain "conditions suspending or restricting insurance.” These were stated as follows:

"Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring
(a) while the hazard is increased by any means within the control or knowledge of the insured; or
(b) while a described building, whether intended for occupancy by owner or tenant, is vacant or unoccupied beyond a period of sixty consecutive days; or
(c) as a result of explosion or riot, unless fire ensues, and in that event for loss by fire only.”

One of the endorsements attached to the policy was denoted as Form 8011, entitled "DWELLING BUILDING(S) AND CONTENTS FORM.” It stated, in relevant part, "THE FOLLOWING CONDITIONS OF VACANCY OR UNOCCUPANCY APPLY IN ACCORDANCE WITH PROTECTION CLASSIFICATION SHOWN ON THE FIRST PAGE OF THIS POLICY

PROTECTED RISKS — Permission granted to be vacant or unoccupied without limit of time.”

A second endorsement relied upon by appellant was that applicable to vandalism, and malicious mischief (Form No. 2551). Subject to the conditions in the endorsement, it extended the basic policy coverage to "direct loss by Vandalism and Malicious Mischief’ and, as to that coverage only, stated, in part:

"This company shall not be liable for loss if the described building(s) had been vacant or unoccupied beyond a period of thirty (30) consecutive days immediately preceding the loss, whether or not such period commenced prior to the inception date of this endorsement... .”

In due course, after the fire, appellant made a claim for payment of the entire $14,000 face coverage, contending that both the cost of repairs ($36,747) and the actual cash value of the property ($23,246) exceeded that amount. When appellee rejected the claim, appellant sued on the policy in the Circuit Court for Harford County, and, being unsuccessful there, appeals. Two issues are presented: (1) whether the court erred in accepting appellee’s "coverage” defense, and (2) if so, whether its analysis of the amount that would be due under the policy was correct. Because we do not believe that the court erred in its handling of the first issue, it becomes unnecessary for us to address the second.

Appellee rejected appellant’s claim, and defends this lawsuit, upon the assertion that, by permitting the property, in its deteriorated condition, to remain unsecured during the 40-day period of vacancy (from November 15 — December 25), given the history of what occurred during the March, 1974, vacancy, appellant has caused or suffered the hazard to the property to be increased by a means within its control or knowledge. It is thus relying on condition (a), appearing on lines 28-32 of the policy.

Appellant contends, in response, that, as a matter of law, a defense based on vacancy must be governed by condition (b) — lines 33-35 — as supplemented by the language or "permission” in the Form 8011 endorsement; i.e., that under the basic policy, coverage is not suspended or restricted until the 61st day of vacancy, and under the endorsement, would not be suspended however long the property remained vacant. The initial question, then, is whether a vacancy which would not otherwise trigger a suspension or restriction of coverage may, when coupled with a failure to secure the property against intruders during that period of vacancy, nevertheless have that effect as constituting an increase in hazard to the property.

In a few early cases, involving rural or isolated properties, some courts more or less assumed that a prolonged vacancy alone might have that effect. See, for example, Lancy v. Home Ins. Co., 20 Atl. 79 (Me. 1890); Frozine v. St. Paul Fire & Marine Ins. Co., 218 N.W. 845, 847 (Wis. 1928): "It is a matter of common knowledge that a building so vacated is subject to increased hazards of fire”; Home Ins. Co. v. Hardin, 139 So. 603 (Miss. 1932): "It is a matter of common knowledge that the hazard of fire is much greater when dwelling houses are vacant and unoccupied, especially when situated in the country____” The Wisconsin and Mississippi cases, it should be noted, involved a clause suspending coverage because of a vacancy beyond a specified period, not a clause dealing directly with an increase in hazard. The courts’ comments in those cases were in the context of sustaining the validity of the "vacancy” clause.

Later cases have refrained from such "common knowledge” approaches, and have looked instead to the particular fact situation underlying the controversy. In Knoff v. United States Fidelity and Guaranty Co., 447 S.W.2d 497 (Tex. Civ. App. 1969), for example, the Court concluded that it was error for the trial court to assume such a nexus as a matter of law, observing, at p. 502:

"A dwelling may be unoccupied in the sense that no one is living there continuously, yet such attention in the protection of the property may be given by the owner as to prevent there being an increase in hazard. The total of all facts must be considered. Whether there has been an increase in hazard or not must be determined by a comparison with the conditions existing at the time the policy was written. The mere fact of a dwelling being unoccupied does not establish an increase in risk as a matter of law.”

Knoff involved essentially the same policy conditions applicable here. At the time of the fire, the house was not continuously occupied, but there was some furniture in it and family members would check on it from time to time. One person even slept there occasionally. Evidence showed that it had been boarded up, but was occasionally broken into and reboarded. From this, the appellate court concluded that summary judgment for the insurer based on increased hazard was inappropriate. The case was remanded for trial.

In Asbell v. Pearl Assurance Co., 157 A.2d 728 (N.J. Super. 1960), the Court affirmed the denial of recovery on the basis of increased hazard where the evidence showed that, following an earlier fire, the building in question had been left in an open and dilapidated condition. At p. 730:

"The defendant [insurer] relied upon something more than mere vacancy or unoccupancy, as such, in defending on the basis of the increase of hazard clause. Leaving a structure open to the incursions of vagrants ... and failing to clean up combustible debris remaining after a prior fire with reasonable dispatch, after actual or constructive knowledge of such conditions, constitute an increase of the fire hazard, separate and apart from such increase of hazard as may inhere in a 60-day vacancy per se. Cancellation of the stipulation as to the latter contingency did not abate the operation of the increase of hazard clause as to circumstances actually augmenting the hazard and distinct from the fact of vacancy in itself.”

In Montello v. Manhattan Fire & Marine Ins. Co., 294 N.Y.S. 1015 (1937), the insurer had pled, in defense to an action on the policy, not only "that the building was found to be unsafe and in a hazardous condition, but that prior to the fire all of the occupants of the building moved out, leaving it unoccupied and unguarded, in which state it 'was stripped and large parts thereof were removed’; that all of these facts were known to the plaintiff and materially increased the fire hazard.” This pleading, said the court at p. 1017, raised an issue of fact "which, if resolved in favor of the defendant insurance company, would absolve it from liability under its policy.”

Montello was cited in the more recent case of Frost House, Inc. v. Preferred Mutual Insurance Co., 223 N.Y.S.2d 875 (1962), where, without discussing the facts before it, the court tersely noted:

"Whether the hazard was increased by means within the control of the insured is an issue of fact.... The extension of coverage to the property when vacant or unoccupied without limit of time did not entitle the insured to otherwise increase the fire hazard by abandonment and disrepair. Whether the abandonment or disrepair here was sufficiently extensive or protracted in time to constitute an increased hazard within the terms of the policy, giving effect to the vacancy clause, is an issue of fact....”

In Paterson-Leitch Co. v. Insurance Co. of No. America, 366 F. Supp. 749 (N.D. Ohio 1973), the Court picked up the holding in Frost House. The insured property consisted of three adjoining dwellings damaged by fire on February 28, 1972. A week or two earlier, the owner had contracted to have the buildings demolished, and, by the time of the fire, most of the necessary permits for the demolition had been obtained. All utilities had been disconnected, and at various times within the month before the fire, all of the tenants had moved. No watchman or other security personnel had been employed to guard the buildings against entry by vagrants. The Court stated, at p. 755:

"[I]t would seem that, in the circumstances of this case, defendant may not rely on vacancy or unoccupancy, as such, in defending on the basis of the increase of hazard clause. It must be shown that plaintiff otherwise increased the fire hazard prior to the fire either by having substantially abandoned the dwellings so as to allow easy access to vagrants, or by having allowed the dwellings to fall into a state of extensive and dangerous disrepair.” (Emphasis supplied.)

On the facts before it, the court denied the pending motion for summary judgment, being unable to determine, as a matter of law, whether or not the dwellings were "so abandoned as to be left open tó vagrants and undesirables.”

Compare also Birmingham Fire Insurance Co. of Pa. v. McKnight, 151 So. 2d 409 (Miss. 1963), where the increased hazard defense was rejected upon evidence that, although the property was vacant, it was watched over by a neighbor, and Balen Developing Corporation v. American Home Assurance Company, 1975 Fire and Casualty 825 (N.Y. Supp. Ct. 1975), wherein the court found as fact that the insured properties were unguarded, open to the elements and unauthorized persons, unsafe, a serious fire hazard, periodically vandalized, in a serious state of disrepair, and abandoned, and concluded that "[a]n abandoned condition of a building constitutes an increase in hazard, which will bar recovery.” See, in general, 8 Couch on Insurance 2d § 37:716.

Two main principles emerge from these cases: (1) although a period of vacancy or unoccupancy will not suffice per se to invoke a suspension of coverage upon the premise of an increased hazard within the insured’s control, such vacancy, when coupled with other risk-enhancing factors, may have that effect; and (2) except possibly in the most extreme cases on either end of the spectrum, this is a judgment that requires a careful weighing of all the relevant facts in the light of simple common sense. The duty to secure the property, physically and/or by human observation, obviously increases in proportion to the duration of the vacancy, the inherent hazard to the property from debris or other flammable conditions, and the susceptibility of the property to unauthorized intrusions — its openness to vagrants and vandals.

This is not an extreme case in which a judgment can be made as a matter of law; nor did the trial court resolve it in that manner. It considered the 40-day duration of the vacancy, the steps taken (and not taken) to secure or watch over the property, the history of what occurred during the earlier period of vacancy, the physical condition of the property evidenced in part by the 54 housing violations, the apparent ability of vagrants to enter the place notwithstanding that the front (and possibly the back) door was locked, and the origin and cause of the fire that triggered this claim. Balancing these things, the court concluded that the increased hazard condition was applicable, that leaving the property in that condition for that period of time without a more significant effort to secure and protect it did indeed increase the hazard substantially by a means within appellant’s control.

In reviewing that judgment, we are constrained by Maryland Rule 1086 not to set it aside on the evidence "unless clearly erroneous.” It is not our function, in that regard, to determine whether, on the same evidence, we might (or would) have reached a different conclusion, but only whether there is in the record legally sufficient evidence to support the trial court’s conclusion. We think that there was, and thus shall affirm.

Judgment affirmed; appellant to pay the costs.

      . This report was apparently based on an inspection occurring on December 29, 1976 — four days after the fire. It is not clear whether the condition noted — "lies open to public and elements” —■ refers to the condition after the fire or when the firemen first arrived to put the fire out.

      . Frozine involved a hotel that was vacated, but left furnished, 18 days before the fire. Evidence showed that one or two persons occupied rooms in the hotel during this period, at least one of whom did so without the owner’s permission.