text:
    THOMAS JOSEPH KOHR v. STATE OF MARYLAND
    [No. 1198,
    September Term, 1977.]

      Decided July 14, 1978.

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

      William E. Seekford, with whom was James A. Gede on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Gerald Ruter, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On August 1, 1977, the appellant, Thomas Joseph Kohr, was arrested at an apartment in Baltimore County, Maryland. Charges of violating the state’s narcotic laws were placed against him in the District Court, and at a preliminary hearing held in that court on September 7, 1977, appellant’s trial counsel filed an oral motion to suppress the admission of certain evidence seized by the police in a warrant-less search and seizure conducted at the time of arrest. That motion was denied.

On September 22,1977, a three count criminal information was filed in the Circuit Court for Baltimore County charging the appellant with possession of marijuana, possession of marijuana in sufficient quantity to reasonably indicate an intent to distribute, and maintaining a common nuisance. Appellant elected to be tried by the court without a jury.

Prior to the trial on the merits, defense counsel renewed his oral motion to suppress the evidence which was allegedly unlawfully seized at the time of arrest. It appears from the record that the assistant state’s attorney assigned to the prosecution of the appellant had been lying in wait with malice aforethought for just such a motion. He called the trial court’s attention to the fact that the Criminal Causes portion of the Maryland Rules of Procedure (the 700 Rules) had been recently revised by the Court of Appeals and that new rules had been adopted by the Court which became effective July 1, 1977. Specifically, the prosecutor called attention to Rule 736 which requires the defense to file a motion to suppress in writing within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court. A failure to comply with these requirements is stated to amount to a waiver of the right to object to an illegal search and seizure and to the admission of any evidence seized pursuant to such a search. Defense counsel confessed an unfamiliarity with the new rules as adopted but urged that Rule 736 was unconstitutional. The state advised the trial judge that it was aware of defense counsel’s failure to file the motion to suppress in writing within the time period allowed and had determined to make the case a test case to determine the constitutionality of Rule 736. It urged the trial judge not “to attempt to sidestep the result.” The trial court inquired of defense counsel whether appellant could, as required by the rule, show “good cause” for his failure to comply with the rule, and upon satisfying itself that there was no “good cause” the court denied the motion to suppress and ruled that the state could introduce the evidence seized without any further hearing.

The case then proceeded on its merits and the evidence seized without a warrant was admitted over objection. The court found the appellant guilty of possession of marijuana with intent to distribute and imposed sentence. It is from that judgment that this appeal is taken. Appellant and appellee have raised a number of legal and factual questions which are stated in various forms but boil down to essentially three questions.

I.

Is Rule 736 of the Maryland Rules of Procedure constitutional?

Rule 736 in its pertinent parts reads as follows:

“a. Mandatory Motions.
“A motion asserting one of the following matters shall be filed in conformity with this Rule. Any such matter not raised in accordance with this Rule is waived, unless the court, for good cause shown, orders otherwise:
“3. An unlawful search, seizure, interception of wire or oral communication, or pretrial identification;
“b. Time for Filing Mandatory Motions.
“A motion filed pursuant to section a of this Rule shall be filed within 30 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel), except when discovery is furnished on an issue which is the subject of the motion, then the motion may be filed within five days after the discovery is furnished.
“d. Content of Motions.
“A motion filed pursuant to this Rule shall be in writing unless the court otherwise directs, shall state the grounds upon which it is made, and shall set forth the relief sought. A motion alleging an illegal source of information as the basis for probable cause must be supported by precise and specific factual averments.
“e. Determination.
“A motion filed pursuant to this Rule, except a motion to dismiss for failure to obtain a speedy trial, shall be determined before trial unless the court otherwise directs in motions involving subsection a 4 of this Rule. If factual issues are involved in determining the motion, the court shall state its findings on the record.
“2. Suppression of Evidence.
“If the court grants a motion to suppress evidence, the evidence shall be excluded and shall not be offered by the State at trial, except that suppressed evidence may be used in accordance with law for impeachment purposes. If the court denies a motion to suppress evidence, the ruling is binding at the trial unless the court, in the exercise of its discretion, grants a hearing de novo on a renewal of the motion. A pretrial ruling denying the motion to suppress is reviewable on a motion for a new trial or on appeal of a conviction.”

The Maryland Constitution, Article IV, Section 18A, vests in the Court of Appeals the power to promulgate rules of practice and procedure in the administration of the appellate courts and the other courts of the state and these rules “shall have the force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law.” Hill v. State, 218 Md. 120, 145 A. 2d 445 (1958). The rules, when adopted within their authorized scope, are legislative in nature. Ginnavan v. Silverstone, 246 Md. 500, 229 A. 2d 124 (1967).

The basis for the grant of this rule-making power is the recognition that in order to provide for the orderly administration of justice reasonable and specific rules of procedure are necessary. The rule-making power, like all legislative power, must be exercised within the confines of the United States Constitution and our own Constitution. See: Article 2, Maryland Constitution, Declaration of Rights. The Supreme Court of the United States held in Maryland Comm. for Fair Representation v. Tawes, 377 U. S. 656, 84 S. Ct. 1429, 12 L.Ed.2d 595 (1963), rev’g, 228 Md. 412, 180 A. 2d 656 (1962), that if any portion of the system of Maryland’s government infringes upon the federal Constitution, which is the supreme law of the land, it must yield to the provision of the federal Constitution.

Appellant mounts a two-pronged attack on the constitutionality of Rule 736. He suggests, initially, that it is the burden of the prosecution to prove the guilt of the accused beyond a reasonable doubt on the basis of legally obtained evidence. He contends that that burden has been shifted to the defendant by the requirements of the rule which provide that it is the defendant who must affirmatively file a written motion within 30 days in which he moves to suppress evidence allegedly obtained unlawfully and must advise the state of the reasons why he contends the search and seizure was unlawful. A failure to comply with these requirements forecloses the accused from his right of litigating the issue of unlawful search and seizure.

We do not agree that the rule imposes an unconstitutional burden nor do we believe it shifts the responsibility of the parties in raising the issue. Under the rules which existed for years prior to the adoption of the new Rule 736, it was always the burden of the defense to raise the issue of unlawful search and seizure by appropriate oral or written motion. The manner and mode of filing such motions has varied. In Sugarman v. State, 173 Md. 52, 195 A. 324 (1937), the Court of Appeals held that a motion before trial to declare a search warrant null and void and to suppress property seized was not authorized by statute or precedent. See: Asner v. State, 193 Md. 68, 65 A. 2d 881 (1949). In Rizzo v. State, 201 Md. 206, 93 A. 2d 280 (1952), the Court noted that a motion to quash a search warrant had been authorized by statute, then codified as Code (1957) Art. 27, Section 551, to be filed and heard before trial. In Farrow v. State, 233 Md. 526, 197 A. 2d 434 (1964), the Court, referring to then Rule 725 b and c, stated that the admissibility of evidence which is dependent upon the lawfulness of an arrest should be ruled upon by the trial judge as a preliminary matter.

The Court stated in Shrout v. State, 238 Md. 170, 208 A. 2d 585 (1965) that the use of a preliminary motion under former Rule 725 was permissive and that the defendant’s failure to move for the suppression of evidence by preliminary motion did not amount to a waiver of his constitutional rights. The Court pointed out, however, that “there is nothing in the Rule or in our decisions to support the State’s contention that, if the defendant does not make such a preliminary motion, his objections to the issuance of the warrant and the evidence seized thereunder are thereafter without avail.” Id. at 174.

Such is not the case, however, under new Rule 736. It is clear that the Court of Appeals in adopting new Rule 736 decided, as a matter of judicial policy and administration, to make the Maryland rule parallel to Rule 12 of the Federal Rules of Criminal Procedure. Both rules are identical in that they require that motions to suppress be filed pre-trial and both consider a failure to raise timely objections to the admissibility of unlawfully seized evidence to constitute a waiver. This does not amount to a shifting of burdens since the state still has the duty of establishing such probable cause to justify the search and seizure or that the search and seizure falls within one of the several recognized exceptions to the warrant requirement. The defendant is still afforded an opportunity to litigate the issue and the requirements of Rule 736 do not amount to an unconstitutional burden on the accused.

Appellant’s second prong in his attack on the constitutionality of Rule 736 is directed at the waiver provision included in that rule. As federal constitutional questions are involved, the issue of waiver of these rights is governed by federal standards. See: Douglas v. Alabama, 380 U. S. 415, 85 S. Ct. 1074, 13 L.Ed.2d 934 (1965); Fay v. Noia, 372 U. S. 391, 83 S. Ct. 822, 9 L.Ed.2d 837 (1963); Farrell v. Warden, 241 Md. 46, 215 A. 2d 218 (1965); Silverberg v. Warden, 7 Md. App. 657, 256 A. 2d 821 (1969).

It has been held in innumerable decisions that constitutional rights may be waived. As we said in Miller v. Warden, 16 Md. App. 614, 621, 299 A. 2d 862 (1973):

“Waiver is chameleon like and takes its color from the right which is waived, from the degree to which it is waived, from the forum in which it is waived, from the state of the proceedings at which it is waived, and from the circumstances under which it is waived.”

Appellant urges that the burden is on the state to show, on the record, that the defendant alleged to have waived a constitutional right has made a knowing and intelligent waiver. Johnson v. Zerbst, 304 U. S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). While this is correct concerning the waiver of a number of rights, it does not apply to a failure to object affirmatively to the admission of evidence by way of a pre-trial motion. In the case of a Fourth Amendment claim it is the defendant who must initially object to evidence which he believes was illegally obtained. A failure to object by way of a pre-trial motion, where required by the Rules, has been held to be an effective waiver of Fourth Amendment rights. See: United States v. Sisca, 503 F. 2d 1337 (2d Cir. 1974), cert. denied, 419 U. S. 1008.

In United States v. Rollins, 522 F. 2d 160 (2d Cir. 1975), cert. denied, 424 U. S. 918 (1976), the defendant filed a pre-trial motion to suppress the admission of alleged illegally seized passports which formed the gravamen of a charge against him. Several grounds for the pre-trial motion were stated, but the motion did not raise the specific contention that the seizure of the passports was beyond the scope of the search authorized by the warrant. Later, a post-trial motion was filed which did include this ground. The Court held that defendant clearly waived this ground by his failure to move for suppression on this basis prior to trial. The Court stated at 165-66:

“[T]he failure to assert before trial a particular ground for a motion to suppress certain evidence operates as a waiver of the right to challenge the admissibility of the evidence on that ground____A specific objection on the ground now asserted, made in timely fashion, would have enabled the district court to hold a hearing as to circumstances of the search. In the event of an adverse ruling the Government would have had the opportunity to alter its conduct of the case, and refrain from relying on the passports. While the passports seized in California were useful in establishing Rollins’ identity and contacts in Kenya, it seems entirely probable that the Government could have secured a conviction without the challenged evidence. Rollins’ identity was established otherwise by eyewitness identification and fingerprints. Rollins’ direct contacts in Kenya were also proven by the names and addresses of his personal address book, by the toll statement disclosing a call from Rollins’ telephone to Kenya on September 4,1974, and by the fact that the transfer forms from Kenya contained the name and number of Rollins’ checking account. By his failure to advance his objection in timely fashion, Rollins deprived the Government of the opportunity to meet that objection before trial; he cannot advance it now.”

Cf.: Sewell v. United States, 406 F. 2d 1289 (8th Cir. 1969) (failure to file a timely motion to dismiss indictment constituted a waiver); United States v. Hoffa, 367 F. 2d 698 (7th Cir. 1966), rev’don other grounds, 387 U. S. 23 (1967) (per curiam) (late challenge to grand jury array held to be a waiver).

Nor do we find that this is one of that class of cases contemplated by Johnson v. Zerbst, supra, where the Court held that the fact of waiver must be shown affirmatively on the record. Rule 736 contemplates some affirmative action on the part of the defendant to raise, by way of written motion, the issue of whether evidence was unlawfully obtained. A failure to file such a motion in the form required by Rule 736 and within the time limits specified amounts to a waiver of the right to raise the issue. We think the language of the Court in United States v. Sisca, supra at 1349 is apropos, where it is stated that “we reject, as did the district court, appellants’ contention that the finding of waiver here is inconsistent with the view that courts should ‘indulge every reasonable presumption against waiver of fundamental constitutional rights.’ Johnson v. Zerbst [supra at 464].”

We do not agree that the failure of the appellant to comply with Rule 736 was cured by the oral motion to suppress filed in the District Court at the preliminary hearing. Obviously, that type of proceeding is not the appropriate forum in which to file a pre-trial motion to suppress. In addition, we note that Rule 701 provides that “[t]he rules in this Chapter [700-Criminal Causes] govern the procedures before the circuit courts for the counties and the Criminal Court of Baltimore.” We conclude that Rule 736 is constitutional.

II.

Appellant next urges that even if Rule 736 is constitutional and conceding, arguendo, that he did not comply with its terms, no waiver occurred because the state failed to comply with the provisions of Rule 741.

The pertinent portions of that rule provide as follows:

“a. Disclosure Without Request.
“Without the necessity of a request by the defendant, the State’s Attorney shall furnish to the defendant:
“2. Any relevant material or information regarding: (a) specific searches and seizures, wire taps and eavesdropping, (b) the acquisition of statements made by the defendant, and (c) pretrial identification of the defendant by a witness for the State.
“3. The State’s Attorney’s obligations under this section extend to material and information in the possession or control of members of his staff and of any others who have participated in the investigation or evaluation of the case and who either regularly report or with reference to the particular case have reported to his office.
“e. Procedure for Discovery.
“1. Time for Discovery.
“The State shall make disclosure pursuant to section a of this Rule within 25 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel). The defendant shall make a request for discovery pursuant to section b of this Rule, and the State shall make a request for discovery pursuant to section d of this Rule within 15 days after the earlier of the appearance of counsel or the first appearance of the defendant before the court pursuant to Rule 723 (Appearance — Provision for or Waiver of Counsel). The party served with the request shall furnish the discovery required by this Rule within 10 days after receipt of the request.”

Appellant urges that the state failed to comply with either the letter or the spirit of the rule requiring disclosure of the relevant material or information regarding the specific searches and seizures in this case. Our examination of the record discloses that the state filed a printed form which it designated as the “State’s Automatic Discovery and Request for Discovery.” The form indicated in paragraph 2 that “any relevant material or information regarding whether the State used a search and seizure, wire tap or eavesdrop in gathering evidence in this case is attached hereto.” No such attachment is found in the record.

The state suggests that it was not necessary to make such an attachment because the appellant had already received this information in detail in the statement of charges received and signed for by the appellant on August 1, 1977. Appellant contends that the failure of the state to comply with Rule 741 within the period required would allow the appellant five days from the date upon which compliance occurred within which to file his written motion. As the state never complied, it is argued that the waiver found by the trial court never occurred.

Whether the state’s printed form represented compliance with Rule 741 and what effect, if any, the failure by the state to comply would have on appellant’s failure to do what is required by Rule 736 are interesting legal questions which we must defer to another time. Those issues were never raised in the trial court and have not been preserved for review by this Court.

Rule 1085 states, “This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court----” The counterpart of that rule for the Court of Appeals is Rule 885 which states substantially the same proposition. Appellant in this case did not raise the issue below as to whether the state had complied with Rule 741 and what effect, if any, its failure to comply would have on the appellant’s failure to follow Rule 736.

We do not feel constrained to review an issue which was not decided below. To adopt such a stance would amount to an encouragement for counsel to raise in this Court, for initial determination, matters which should be heard and determined in the first instance by the trial court.

As the Court of Appeals said in the recent case of Covington v. State, 282 Md. 540, 386 A. 2d 336 (1978), aff'g, 34 Md. App. 454, 367 A. 2d 974 (1977):

“Covington’s proper remedy is under the Maryland version of the Uniform Post Conviction Procedure Act, Maryland Code (1957, 1976 Repl. Vol., 1977 Cum. Supp.) Art. 27, §§ 645A-645J, originally passed in 1958 with the intent that there be brought together ‘into one simple statute all the remedies, beyond those that are incident to the usual procedures of trial and review, which are at present available for challenging the validity of a sentence ----’ State v. D’Onofrio, 221 Md. 20, 29, 155 A. 2d 643 (1959); Brady v. State, 222 Md. 442, 447, 160 A. 2d 912 (1960). We observed in State v. Zimmerman, 261 Md. 11, 273 A. 2d 156 (1971):
‘The public and the accused are entitled to speedy administration of justice. Memories fade with the passage of time. Therefore, the quest for truth and justice will best be served by the earliest possible determination of factual questions. For that reason it becomes important that orderly processes for those determinations be establishéd and, once established, that there be adherence to those processes.’ Id. at 24.” Id. at 544.

We concur with Judge Smith’s observation in Covington, supra, where it is stated, “Our insistence that an appellate court reach its conclusions with full information before it in no way deprives Covington of any rights. We believe it to be by far the sounder approach to the administration of justice.” Id. at 545-46.

III.

Appellant’s final contentions are addressed to the testimony of the arresting detective and to the admission of evidence relating to the issue of probable cause. The record clearly indicates that the detective qualified as an expert in the field of narcotics investigation. His qualifications as stated in his testimony were an adequate basis for his opinion concerning the grade, type, weight and packaging of the marijuana recovered from the appellant. See: Oberlin v. State, 9 Md. App. 426, 265 A. 2d 275 (1970); Mullaney v. State, 5 Md. App. 248, 246 A. 2d 291 (1968), cert. denied, 252 Md. 732 (1969). Similarly, his testimony as to the shape of the bag carried by the appellant, and the fact that it appeared “heavy” was a permissible exposition of what the witness saw. See: King v. State, 36 Md. App. 124, 373 A. 2d 292 (1977).

The remaining complaint by appellant is somewhat peculiar. Although the trial court had indicated by his ruling that appellant had waived his right to contest the admissibility of the evidence seized without a warrant, the state continued to put its evidence of probable cause into the record without objection. The record clearly indicates that both defense counsel and the trial court were aware of this fact. Defense counsel actually based his argument on his motion for judgment of acquittal on the lack of probable cause and the trial judge directed his response to that issue when he said:

“First of all, in my prior ruling, the issue of probable cause is not properly before the court at this time because it was not properly raised when it should have been raised. But, for the record, so you will know how I feel, although I have not tried the issue of probable cause, there is no question in my mind that there was probable cause and everything this officer did was properly done. All of that sounds like good, technical argument, but in my opinion the law was absolutely complied with, and there was probable cause, there was a proper arrest, and everything was handled in a proper manner, although I don’t have to make the ruling on probable cause at this time, and cannot do so because of my prior ruling where you did not raise the illegal search and seizure by the proper motions.”

We agree with the trial court that the issue of probable cause was not properly before it at that time, and we also decline to rule on that issue. We believe that the appellant’s remedy, if any, lies in the Post Conviction Procedure Act.

Judgment affirmed; costs to be paid by appellant.

      . A constitutional amendment, proposed by the Acts of 1977, ch. 681, which would place substantially the same provisions in Section 18 of Article IV of the Md! Constitution will be voted upon at the general election to be held in November, 1978.

      . See: Brookhart v. Janis, 384 U. S. 1, 86 S. Ct. 1245, 16 L.Ed.2d 314 (1966), Barber v. Page, 390 U. S. 719, 88 S. Ct. 1318, 20 L.Ed.2d 255 (1968) (right of confrontation); Zimmerman v. State, 9 Md. App. 488, 265 A. 2d 764 (1970) (jury trial); Barker v. Wingo, 407 U. S. 514, 92 S. Ct. 2182, 33 L.Ed.2d 101 (1972) (speedy trial); Green v. United States, 355 U. S. 184, 78 S. Ct. 221, 2 L.Ed.2d 199 (1957) (double jeopardy); McCarthy v. United States, 394 U. S. 459, 89 S. Ct. 1166, 22 L.Ed.2d 418 (1969); Boykin v. Alabama, 395 U. S. 238, 89 S. Ct. 1709, 28 L.Ed.2d 274 (1969) (guilty plea); Smith v. United States, 337 U. S. 137, 69 S. Ct. 1000, 93 L.Ed. 1264 (1949) (compulsory self-incrimination); Emspak v. United States, 349 U. S. 190, 75 S. Ct. 687, 99 L.Ed. 997 (1955) (compulsory self-incrimination before a congressional committee); In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L.Ed.2d 527 (1967) (counsel in juvenile proceedings); McMann v. Richardson, 397 U. S. 759, 90 S. Ct. 1441, 25 L.Ed.2d 763 (1970) (waiver of trial by guilty plea); United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149 (1967) (attorney at lineup); Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L.Ed.2d 694 (1966) (self-incrimination and attorney).

      . The Supreme Court stated in Schneckloth v. Bustamonte, 412 U. S. 218, 235, 241-42, 36 L.Ed.2d 854, 93 S. Ct. 2041 (1973):
      “It is argued that under the doctrine of Johnson v. Zerbst ... to establish such a ‘waiver’ the State must demonstrate ‘an intentional relinquishment or abandonment of a known right or privilege.’
      “But these standards were enunciated in Johnson in the context of the safeguards of a fair criminal trial. Our cases do not reflect an uncritical demand for a knowing and intelligent waiver in every situation where a person has failed to invoke a constitutional protection. As Mr. Justice Black once observed for the Court: “Waiver” is a vague term used for a great variety of purposes, good and bad, in the law.’ Green v. United States....
      “There is a vast difference between those rights that protect a fair criminal trial and the rights guaranteed under the Fourth Amendment. Nothing, either in the purposes requiring a ‘knowing’ and ‘intelligent’ waiver of trial rights, or in the practical application of such a requirement suggests that it ought to be extended to the constitutional guarantee against unreasonable searches and seizures.
      “The protections of the Fourth Amendment are of a wholly different order, and have nothing whatever to do with promoting the fair ascertainment of truth at a criminal trial.”


source: Caselaw Access Project

author: Thompson, J.,

license: Public Domain

text:
    THOMAS LEONARD RAITHEL v. STATE OF MARYLAND
    [No. 1200,
    September Term, 1977.]

      Decided July 14, 1978.

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

      Victoria A. Salner, Assistant Public Defender, with whom were Alan H Murrell, Public Defender, and Leonard C. Redmond, III, Assistant Public Defender, on the brief, for appellant.

      Deborah K. Handel, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Arthur A. Marshall, Jr., State’s Attorney for Prince George’s County, and Leonard Casalino, Assistant State’s Attorney for Prince George’s County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

This is the second time appellant, Thomas Leonard Raithel, has been before this Court seeking reversal of his convictions for murder in the first degree, assault with intent to rape, and carrying a deadly weapon. In the previous appeal we affirmed the convictions in an unreported per curiam opinion, Raithel v. State, No. 1007, September Term, 1975 (Md. App. filed Sept. 23, 1976). That decision was subsequently reversed by the Court of Appeals because competency to stand trial was not properly determined. Raithel v. State, 280 Md. 291, 372 A. 2d 1069 (1977).

I The Facts

On July 5, 1974, at approximately 9:30 P.M. Deanna Miles was fatally stabbed outside the ladies’ restroom in the Old Angus Restaurant in College Park. Although the actual stabbing was unwitnessed, appellant became the prime suspect after various pieces of evidence were put together.

On the night of the murder Ms. Miles had been accompanied by Walter DeGrouchy. At approximately 9:30 P.M. she left DeGrouchy to go to the ladies’ room but did not return. Her body was subsequently discovered by two patrons at the restaurant some time before 10:00 P.M. Prior to the homicide the appellant had been observed coming out of the men’s restroom and, according to the night manager of the restaurant, had been observed earlier in the evening coming through a conference room that connected a downstairs kitchen with the restroom area. Although the kitchen door was normally locked, the lock was found to be broken on the night of the murder.

After being questioned by the police, appellant finally confessed to the murder. His confessions revealed that he had been harrassed by his peers and coworkers about his sexual inexperience and as a result planned a rape. On the night of the homicide he hid by the ladies’ restroom, armed with a steak knife, “awaiting a victim.” When Ms. Miles walked by he grabbed and choked her causing her to faint. He then “stomped her head” as she lay on the floor and stabbed her. No motive was expressed for the killing.

During the trial defense counsel attempted to suppress the confessions. The trial judge noted that a motion to suppress the confessions had also been made during the previous trial. As he had presided over the first trial and remembered the testimony, the trial judge suggested that the motion be decided on the basis of the previous testimony along with any other testimony the parties wished to present. This procedure was accepted by counsel.

At the previous suppression hearing the State had produced the two police officers involved in eliciting appellant’s confessions. In the course of their testimony the officers, Det. Lawrence Doman and Det. Earl Jones, gave the following account of the events surrounding the confessions. At their request appellant and his father visited the police station in an effort to clear up any suspicion. Doman told appellant’s father that a polygraph examination would be the best way to resolve the matter. After discussing this possibility with his father, appellant agreed to take the test. Prior to the start of the examination appellant was given his full Miranda warnings and was told that he was free to leave at any time. After Det. Jones, who had been contacted to administer the exam, explained how the polygraph operated and asked some background questions, appellant stated that he did not want to take the test. Jones then told appellant he knew he could not take the test “because he had done it” and suggested the killing might have been accidental. When appellant agreed the killing had been an accident Jones told appellant that he did not believe him. After this exchange appellant and Jones then “got down to discussing exactly how it occurred.” According to the officers’ testimony, the ensuing confessions were made without any threats, inducements, or coercion.

Appellant did not introduce any evidence in support of his motion during the first hearing. During the second hearing, appellant took the stand and gave his version of the events leading up to his confessions. He claimed that his father had urged him to take the test and he consented because he “couldn’t refuse [his] father.” After Det. Jones connected him to the polygraph and showed him how it worked he decided he no longer wanted to take the test. At that point Jones stopped the paper in the polygraph and asked him why he had killed Ms. Miles. When this happened appellant noticed the needles on the machine started “jumping” and he told Jones to disconnect him from the polygraph. Once this was done, he “calmed down” and decided to leave. As he was halfway to the door Jones told him although he was free to leave the room, he could not leave the building because he knew he was guilty. Appellant then testified that he asked to see his father but was told his father had left to get something to eat. When he said that he would go outside and wait for him, Jones stood up jn a threatening manner and told him to sit down. After several more hours of interrogation he finally confessed.

Appellant’s father testified he had taken his son to the police station at about 7:00 in the evening. When his son was taken into the examination room he remained at the police station and did not leave at any time. After a considerable period of waiting, he inquired about the delay and was told by the police that they were having trouble with the polygraph. Finally around 2:00 or 8:00 the next morning the police informed him that his son had confessed. The State produced Det. Jones on rebuttal; his testimony was substantially the same as that given during the previous hearing.

After the evidence on the motion had been presented the following exchange occurred between the trial judge and defense counsel:

“The Court: ... I might comment it seemed most strange to the [cjourt that this issue wasn’t raised in the previous trial, which I frankly will say to you right now does have some bearing on the credibility issue to the [cjourt.
Mr. Redmond [defense counsel]: Well, Your Honor, I can’t speak for what—
The Court: I understand.
Mr. Redmond: — Attorney Hughes did in the first trial.
The Court: I say, but your client was there, and the client’s father was there and it does have some bearing in the [cjourt’s mental process in an area that is as important as this, because I think it should be abundantly clear to everybody that if these statements are suppressed, the State’s likelihood of getting to a jury have been diminished greatly, because I sat through the previous trial and you about had all of the substantive testimony from the State other than these statements that they had, I think.
So it is a highly critical issue, obviously, and I have to say, Mr. Redmond, I have some problem, although I will obviously read the record, I have some problem as to why today it’s been raised for the first time.
Mr. Redmond: I understand that problem, Your Honor, and that is why I mentioned during our pretrial conference that I would be raising this issue that, surprisingly, to me, had not been raised in the first trial.
However, I don’t have the benefit of Mr. Raithel’s counsel’s in the first trial’s thoughts in the matter; as you well know, counsel make tactical decisions for all kinds of reasons.
The Court: That may be true, but you sure got to apply it with murder sitting there and an adult father who would have some interest in the matter. But go ahead.”

The confessions were subsequently found to be voluntary and admitted into evidence.

After the State had presented its case appellant did not offer any evidence to show he had not killed Ms. Miles but maintained he was not criminally responsible at the time of the crime.

On appeal appellant maintains:

(1) It was impermissible for the trial judge to consider appellant’s failure to testify at the prior suppression hearing in determining the voluntariness of his confessions;
(2) It was impermissible for the trial judge to use the prior testimony of the State’s witnesses during the suppression hearing in lieu of live testimony;
(3) A psychologist should have been permitted to express an opinion on appellant’s sanity at the time of the offense; and
(4) The trial judge erred in ruling that certain evidence was admissible under the business record exception to the hearsay rule.

II Consideration of Appellant’s Prior Silence in Assessing Credibility

Before considering the merits of appellant’s claim we must first consider the State’s contention that the point was not preserved for appellate review. During the suppression hearing appellant did not object to the trial judge’s use of his prior silence in assessing credibility. He did object, however, when the State later introduced the confessions into evidence. We think this objection was sufficient to preserve the point. The comment in the instant case dealt with the judge’s thought process in ruling on the admissibility of the confession. Appellant’s objection,was sufficient to allow an attack on the ultimate ruling on admissibility and, consequently, preserved for review the question as to whether or not the trial judge in reaching that decision relied on impermissible factors.

The constitutional question to be decided is whether an accused who testifies waives his right not to be cross-examined as to his silence in a prior proceeding. This question was initially answered in the affirmative in Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054 (1926). Raffelinvolved a situation where an accused remained silent during his first trial despite accusations by a government agent that he had made incriminating admissions. The agent gave the same testimony at the second trial but this time the accused took the stand and denied the accusations. The court stated that as the accused voluntarily took the stand he could be cross-examined as to why he had not previously testified:

“The immunity from giving testimony is one which the defendant may waive by offering himself as a witness----When he takes the stand in his own behalf, he does so as any other witness, and within the limits of the appropriate rules he may be cross-examined as to the facts in issue____He may be examined for the purpose of impeaching his credibility----His failure to deny or explain evidence of incriminating circumstances of which he may have knowledge, may be the basis of adverse inference, and the jury may be so instructed. His waiver is not partial; having once cast aside the cloak of immunity; he may not resume it at will, whenever cross-examination may be inconvenient or embarrassing.” (citations omitted).
“The safeguards against self-incrimination are for the benefit of those who do not wish to become witnesses in their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself as a witness to do so without reservation, as does any other witness.” Id. 271 U. S. at 496-497, 499.

While Raffel would seem to foreclose appellant’s constitutional attack on the trial judge’s comment, its present validity is a matter of considerable doubt in light of several subsequent decisions.

Twenty-seven years after its decision in Raffel the Court ruled in Johnson v. United States, 318 U. S. 189, 63 S. Ct. 549, 87 L. Ed. 704 (1943), under its supervisory powers over federal courts, that it was impermissible to allow comment on the exercise of the privilege against self-incrimination once the privilege was granted, even though the privilege was granted erroneously. In so ruling the Court noted:

“[Wjhere the claim of privilege is asserted and unqualifiedly granted, the requirements of fair trial may preclude any comment. That certainly is true where the claim of privilege could not properly be denied. The rule which obtains when the accused fails to take the stand (Wilson v. United States, 149 U.S. 60, 13 S. Ct. 765, 37 L. Ed. 650) is then applicable. As stated by the Supreme Court of Pennsylvania, ‘If the privilege claimed by the witness be allowed, the matter is at an end. The claim of privilege and its allowance is properly no part of the evidence submitted to the jury, and no inferences whatever can be legitimately drawn by them from the legal assertion by the witness of his constitutional right. The allowance of the privilege would be a mockery of justice, if either party is to be affected injuriously by it.'" Id. 318 U. S. at 196-197, 63 S. Ct. at 553.

In Grunewald v. United States, 353 U. S. 391, 77 S. Ct. 963, 1 L.Ed.2d 931 (1957), the Court held that the assertion of the privilege before a grand jury was not inconsistent with later exculpatory testimony at the trial and, as a result, could not be used for impeachment. Four justices concurring in the decision reached the constitutional issue and stated:

“I can think of no special circumstances that would justify use of a constitutional privilege to discredit or convict a person who asserts it. The value of constitutional privileges is largely destroyed if persons can be penalized for relying on them. It seems peculiarly incongruous and indefensible for courts which exist and act only under the Constitution to draw inferences of lack of honesty from invocation of a privilege deemed worthy of enshrinement in the Constitution. To the extent that approval of such a rule in Raffel v. United States, 271 U. S. 494, 46 S. Ct. 566, 70 L. Ed. 1054, has vitality after Johnson v. United States, 318 U.S. 189, 196-199, 63 S. Ct. 549, 553-554, 87 L. Ed. 704, I think the Raffel case should be explicitly overruled.” Id. 353 U. S. at 425-426, 77 S. Ct. at 984-985.

The notion that it is impermissible to use the exercise of a constitutional right as a weapon against the accused has also been utilized in other decisions of the Court thereby adding weight to the view that Raffel is no longer valid. See Doyle v. Ohio, 426 U. S. 610, 96 S. Ct. 2240, 49 L.Ed.2d 91 (1976); Spevack v. Klein, 385 U. S. 511, 87 S. Ct. 625, 17 L.Ed.2d 574 (1967); Griffin v. California, supra n. 5.

In Doyle the Court was faced with a situation where an accused’s post arrest silence after the Miranda warnings had been given was used to impeach testimony given at the trial. The Court utilizing reasoning analogous to that employed in Johnson concluded that it was fundamentally unfair to allow a prosecutor to impeach an accused with his silence under these circumstances.

“[W]hile it is true that the Miranda warnings contain no express assurance that silence will carry no penalty, such assurance is implicit to any person who receives the warnings. In such circumstances, it would be fundamentally unfair and a deprivation of due process to allow the arrested person’s silence to be used to impeach an explanation subsequently offered at trial. Mr. Justice White, concurring in the judgment in United States v. Hale, [422 U. S. 171] at 182-183, 95 S. Ct. [2133] at 2139, put it very well:
‘[W]hen a person under arrest is informed, as Miranda requires, that he may remain silent, that anything he says may be used against him, and that he may have an attorney if he wishes, it seems to me that it does not comport with due process to permit the prosecution during the trial to call attention to his silence at the time of arrest and to insist that because he did not speak about the facts of the case at that time, as he was told he need not do, an unfavorable inference might be drawn as to the truth of his trial testimony---- Surely Hale was not informed here that his silence, as well as his words, could be used against him at trial. Indeed, anyone would reasonably conclude from Miranda warnings that this would not be the case.’ ” Id. 426 U. S. at 618-619, 96 S. Ct. at 2245.

The reasoning employed in Johnson, Grünewald, and Doyle is fundamentally inconsistent with the notion contained in Raffel that an accused completely waives his privilege against self-incrimination by testifying and it makes no difference that an accused’s prior silence might then be used as a weapon against him. Consequently, we conclude that Raffel has been impliedly overruled and that the privilege against self-incrimination prevents an accused’s silence at a prior hearing from being considered in assessing his credibility.

Ill Admissibility of Psychologist’s Opinion on Issue of Appellant’s Criminal Responsibility

Dr. Dennis Harrison, a clinical psychologist, was not permitted to express an opinion on whether appellant was suffering from a mental disorder at the time of the crime or whether he was able to appreciate the criminality of his conduct. The trial judge’s ruling was predicated on previous decisions of this Court in which we stated that an opinion on the ultimate issue of criminal responsibility can only be given by a medically trained psychiatrist. Appellant asks us to reconsider our position in light of a growing body of authority that is contrary to our prior decisions. We need not do so, however, in light of a recent amendment to Md. Code, Ct. & Jud. Proc. Art., § 9-120 which provides:

“Notwithstanding the provisions of Article 59 or the provisions of any other law, a psychologist certified under the ‘Psychologists’ Certification Act’ and qualified as an expert witness may testify on ultimate issues, including insanity, competency to stand trial, and matters within the scope of that psychologist’s special knowledge, in any case in any court or in any administrative hearing.” 1978 Md. Laws ch. 481.

The amendment was signed into law on May 16,1978, and becomes effective July 1,1978. Consequently, appellant’s new trial will be governed by this provision and Dr. Harrison, if qualified, will be permitted to testify.

IV Admissibility of the Perkins Report

The final point raised by appellant that merits noting concerns the admissibility of a report from Clifton T. Perkins State Hospital. The report was prepared in connection with a court ordered examination of appellant and expressed the view that appellant was criminally responsible for his actions at the time of the crime. In arguing against the admissibility of the report appellant mounts a two-pronged attack. First, he maintains the report was inadmissible because the State failed to show that one of the declarants in the report, Dr. Carmencita Mola, was qualified to express an opinion. Alternatively, appellant argues the report was inadmissible because Dr. Wilfried Freinek, the individual through whom the report was admitted, did not recall the factual basis of the opinions.

It is well settled that hospital records are admissible under the business record exception to the hearsay rule. Dietz v. Moore, 277 Md. 1, 6, 351 A. 2d 428, 432 (1976); Pratt v. State, 39 Md. App. 442, 387 A. 2d 779 (1978). One special problem presented by hospital records is whether the diagnostic opinions they contain are admissible because these opinions are rendered by experts who are not on the stand for cross-examination. We previously held in Marlow v. Cerino, 19 Md. App. 619, 636-637, 313 A. 2d 505, cert. denied, 271 Md. 739 (1974), that such opinions are admissible as long as it appeared that they were expressed by a qualified person. In arguing that the State must affirmatively establish the qualification of the declarant before the record can be admitted appellant overlooks Marlow. There we noted:

“As in the case of expert opinions given on the witness stand, the qualifications of the declarant should appear, but it would seem that if it is proven or judicially noticed that the hospital from which the records come is a reputable institution of high standards this would justify the inference that what purport to be diagnoses made by physicians are made by doctors duly qualified to give such opinions.” Id. 19 Md. App. at 635, 313 A. 2d at 514, quoting C. McCormick, Handbook of the Law of Evidence § 290 at 612 (1954).

In the instant case there was no evidence indicating Dr. Mola was unqualified and the trial judge could properly conclude that the opposite was true based on the status of Clifton T. Perkins as a reputable institution of high standards.

The second prong of appellant’s argument is predicated on the notion that hospital records cannot be received into evidence where the witness through whom the report is introduced does not have sufficient information or expertise in the area in which an opinion is expressed to make cross-examination meaningful. Contrary to appellant’s assertion once it was shown the report was made in the regular course of business and such reports were regularly made, the report was admissible and it was incumbent upon appellant to call the declarants as witnesses and examine them for weakness or error. Marlow v. Cerino, supra, 19 Md. App. at 637, 313 A. 2d at 515.

Judgments reversed.

Case remanded for a new trial.

Costs to be paid by Prince George’s County.

      . Appellant made several confessions to the crime. After questioning by the police appellant gave an oral statement admitting his guilt. Then, at the request of the police appellant allowed a tape recording and a video tape to be made of his confession.

      . The only issue raised was the voluntariness of the oral confession. If defense counsel could establish that it was involuntary it was apparently conceded that appellant’s subsequent confessions would be inadmissible.

      . Miranda v. Arizona, 384 U. S. 436, 467-473, 86 S. Ct. 1602, 1624-1627, 16 L.Ed.2d 694 (1966).

      . The State argues that consideration of the prior silence for impeachment does not involve a constitutional question because the comment was directed to the voluntariness of appellant’s confession and not his guilt. Based on this the State reasons that the comment was not incriminating and thus appellant’s right against self-incrimination was not involved. We disagree. It is obvious that the comment affected the admissibility of the confessions and they were certainly incriminating.

      . Subsequent to Johnson the Court held in Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L.Ed.2d 106 (1965) that the 14th Amendment prevented the states from commenting on an accused’s failure to testify.

      . Prior to Doyle several decisions based on the exercise of the Supreme Court’s supervisory powers had significantly diminished the impact of Raffel in the federal courts. See United States v. Hale, 422 U. S. 171, 95 S. Ct. 2133, 45 L.Ed.2d 99 (1975); Stewart v. United States, 366 U. S. 1, 81 S. Ct. 941, 6 L.Ed.2d 84 (1961); Grunewald v. United States, supra.

      . Although Doyle did not purport to decide whether a refusal to testify at a preliminary hearing could be used to impeach the testimony of an accused, 426 U. S. at 616 n. 6, 96 S. Ct. at 2244 n. 6, the reasoning employed by the Court sheds a great deal of light on the ultimate resolution of this issue.

      . Prior to the Supreme Court’s decision in Doyle both the Court of Appeals and this Court had held that comment on an accused post arrest silence was impermissible. Younie v. State, 272 Md. 233, 238-245, 322 A. 2d 211, 214-217 (1974); Sutton v. State, 25 Md. App. 309, 317-320, 334 A. 2d 126, 130-132 (1975). Cf. Robeson v. State, 39 Md. App. 365, 386 A. 2d 795 (1978). (Doyle does not prohibit use of an accused’s pre-arrest silence for impeachment).

      . Our conclusion in this regard is supported by other courts and commentators who have considered the continued validity of Raffel. See United States v. Anderson, 498 F. 2d 1038, 1044 n. 26 (D.C. Cir. 1974), aff’d. sub nom United States v. Hale, supra n. 6; Fowle v. United States, 410 F. 2d 48, 50 (9th Cir. 1969); State v. Carmody, 253 N.W.2d 415, 417-418 (N.D. 1977); Messier v. State, 428 P. 2d 338, 341-342 (Okla. Crim. 1967); Commonwealth v. Jones, 229 Pa. Super. 236, 327 A. 2d 638, 642-643 (1974); Dean v. Commonwealth, 209 Va. 666, 166 S.E.2d 228, 231 (1969); C. McCormick, Handbook of the Law of Evidence § 132 at 281 (2d. ed. E. Cleary 1972); Note, Impeaching a Defendant’s Testimony by Proof of Post-Arrest Silence: Doyle v. Ohio, 25 Clev. St. L. Rev. 261, 294 (1976).

      . Although appellant’s argument on this point was phrased in terms of a denial of his right to confront the experts who made the statements, he does not argue the admission of the report infringed upon his constitutional right of confrontation.

      . We see no need to discuss the other issues raised by the appellant.


author: MacDaniel, J.,

text:
    JOHN FRANCIS BRISCOE v. STATE OF MARYLAND
    [No. 1207,
    September Term, 1977.]

      Decided July 14, 1978.

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

      Charles Duvall Smith, with whom were Taylor, Smith & Parker on the brief, for appellant.

      Kathleen M. Sweeney, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, W Timothy Finan, Assistant Attorney General, and Robert C. Nalley, State’s Attorney for Charles County, on the brief, for appellee.
   MacDaniel, J.,

delivered the opinion of the Court.

Appellant, John Francis Briscoe, was tried by a jury in the Circuit Court for Charles County under an indictment charging him with two counts of rape, one count each of false imprisonment, larceny and other related offenses. On January 22, 1976, he was convicted of two counts of rape as well as false imprisonment and petit larceny. On November 9, 1976, this Court filed a per curiam opinion, reversing the judgment of the Circuit Court for Charles County and remanding for a new trial. On remand, and after proper motion, the case was removed to the Circuit Court for Prince George’s County. On June 29, 1977, a hearing was held in open court on appellant’s motion to suppress evidence and the motion was denied. The case came to trial before a jury on October 10,1977. The jury found appellant guilty on the two counts of rape, guilty of false imprisonment, and not guilty of petit larceny. Appellant was sentenced to life imprisonment for the rape convictions and ten years for the false imprisonment conviction, to run concurrently.

The victim, whom we shall simply call Mary, resided at a boarding house located at 102 Kent Avenue in La Plata, Maryland. Mary arrived home at approximately 11:00 P.M. on May 15, 1975. She fell asleep on the living room couch. Sometime after 1:00 A.M. on May 16,1975, she awakened and found a man standing near the couch. After asking for money and receiving none, this man pointed a sawed off shotgun at her and ordered her into the kitchen. While in the kitchen, Mary was tied with articles of clothing and a gag was placed across her mouth. She was taken to a downstairs bedroom and told to lie on the bed. She testified “he laid on top of me and raped me.” According to the victim, this man then left the bedroom and went upstairs. He returned to the bedroom and “he raped me again.” When Mary was asked whether there was penetration on each occasion, she answered “yes.” She described her assailant to the police and stated that he wore a striped sweater, dark pants, a white mask, and wore a ring on his left hand. Taken at this time from the residence was Mary’s hospital pay check, a ten dollar bill with writing on it, and fifty silver dollars. The assailant had on soft soled shoes with a lot of mud on them.

Dr. Schultz examined Mary later that morning and testified he found the presence of motile sperm and that she had sexual intercourse within the last twenty-four hours.

Evidence was introduced by the State to show that the bedroom where the alleged rapes took place was used at times by Theresa Chase, the appellant’s sister-in-law, who worked at the boarding house, and that appellant had worked for the past several weeks at the boarding house, during the course of which he had occasion to be on the premises and in the building of the boarding house.

Deputy Brown arrived at the scene of the alleged rape about an hour later with a Police bloodhound named “Lady.” After Lady was exposed to a scent, she followed a course through a muddy area winding up at a parking lot at a small shopping area about three-tenths of a mile from the scene of the alleged rape. It was at this point that Lady lost the scent completely.

Officer Nolan H. Woodland arrived at the scene of the alleged rape at approximately 3:00 a.m. Approximately five minutes later he went to the area at the shopping center where Lady had lost the scent. Officer Woodland, sometime between 1:30 and 2:30 A.M. the same day, had observed an automobile he knew to belong to Joseph Chase parked at the same spot where Lady had stopped. It was the only car parked there at that time. Woodland had actually gone over and looked into the car to make sure that there was nothing awry when he first saw the car. Later on he passed that area again and the same car was still parked there. When Woodland returned to that area after information of the alleged rape, this car had been moved.

Testimony from Gladys Briscoe, wife of appellant, Mary T. Chase, sister-in-law of appellant, and Joseph Chase, brother-in-law of appellant, revealed that appellant had in fact used the Chase car in the early morning hours that the alleged rape took place. At approximately 6:30 A.M. on this same morning the automobile owned by Joseph Chase was parked beside Joseph Chase’s trailer. The other trailer located right near Joseph Chase’s trailer was occupied by the appellant, John Briscoe.

An application for a search and seizure warrant was filed around 9:45 A.M. on May 16,1975, with an affidavit in support thereof. A search and seizure warrant was issued and executed the same morning. The police searched the Chase automobile, the Chase trailer, and the appellant’s trailer. Certain evidence, which included the stock of a shotgun found between a mattress and spring, was seized from appellant’s trailer and introduced into evidence.

Four issues are presented in this appeal: (1) Was there probable cause in the affidavit for the issuance of a search and seizure warrant? (2) Did the testimony of the complaining witness establish that a rape took place? (3) Did the trial court properly admit testimony concerning the following of a trail by a police bloodhound? (4) Did the trial court err in not granting the missing witness instruction requested by the appellant?

/.

The appellant initially challenges the sufficiency of the affidavit used to establish probable cause for obtaining the search warrant. The affidavit, executed by Investigator Carl R. Steinhauser of the Charles County Sheriff’s Department, stated, inter alia, the following:

“2. At 2:38 a.m. on May 16,1975, [Mary] (w/f; DOB: 5-11-54) reported to the Charles County Sheriff’s Department that at approximately 2:00 a.m. on said date a black male aged 25-30 approx. 5' 7", 160 lbs. wearing a striped sweater & dark pants with a white mask and a ring on his left hand entered her residence at ‘Dr. Monteiro’s Boarding Home’, 102 Kent Ave., La Plata, Charles County, Maryland, awakened her and pointed a shotgun at her. She stated that he forced her into the kitchen at gunpoint and tied her hands behind her back and took her into a bedroom, placed her on a bed and raped her. She said that he then went to upper floors of the residence, broke into two rooms and removed therefrom her employee paycheck from Physicians’ Memorial Hospital, La Plata, Md., a ten dollar bill with writing on it and 50 silver dollars. She said that he then returned to the room where she remained tied on the bed and raped her again, whereupon he left through the back door through which he had entered.
3. Officer Gale Willett of the Charles County Sheriff’s Department and I ([initialed] C.R.S.) received Miss [Mary] report and responded to 102 Kent Avenue, whereupon we ([initialed] C.R.S.) requested assistance of the Department’s Mobile Crime Laboratory and bloodhound, Officer William D. Brown of the Department has advised me today that he responded with the bloodhound and that the bloodhound was exposed to the scent of a striped sweater matching the description provided by Miss [Mary] which had been recovered from the area of the rear of the residence. Officer Brown reported that the bloodhound thereupon followed a course leading generally eastward from the rear door of the residence, through a muddy area and a housing development, around in a southwesterly direction toward Charles Street in La Plata to a parking area off of Kent Avenue behind the County Drug Store, which is approximately 3 doors south of Miss [Mary’s] residence on Kent Avenue and within sight of it. Officer John Wood of the Crime Laboratory advised that he responded to the residence and discerned within it mud on the floor which was compatible in appearance to that observed in the area through which Officer Brown and the bloodhound had walked.
4. Officer Nolan H. Woodland of the La Plata Town Police advised me today that as early as 1:30 a.m. and as late as 2:30 a.m. this date he observed a 1965 Mercury Comet 2-dr sedan, light bluish-green in color with primer paint on both rear quarter panels bearing Md. reg. ARH-185 parked behind the referenced County Drug Store in the area at which the bloodhound’s foray ended. A check with the Maryland Motor Vehicle Administration has revealed such a vehicle to be registered to Joseph Edmond Chase of Rt 225 General Delivery, La Plata, Md. Officer Woodland has advised that he is personally acquainted with said Chase and knows him to occupy an older dark green house trailer on Dump Rd., La Plata, .3 mi from that road’s intersection with Md. Rt. 225; Officer Woodland further indicated that he knows the green and silver trailer immediately to the north of the Chase trailer to be occupied by John Francis Briscoe. At 6:30 a.m. today I personally observed the referenced vehicle parked in front of the trailer said to be occupied by Chase; I directed that surveillance of the trailers and cars be maintained and at 7:30 a.m. was advised by Officer W.S. Hutchinson that the surveillance team had stopped the vehicle as it emerged from Dump Rd. and found it to be occupied by Joseph E. Chase.
5. Arturo Monteiro, M.D. advised me this date that at approximately 3:00 a.m. a Mary T. Chase entered Physicians’ Memorial Hospital at La Plata in the company of Gladys Chase, a/k/a Gladys Briscoe. Dr. Monteiro indicated that he had inquired of Gladys Briscoe as to the whereabouts of her husband, John Francis Briscoe, during the course of the morning and that she stated that she and he had attended a dance at Pomonkey at the conclusion of which John Francis Briscoe had left in the company of ‘Joe’; Dr. Monteiro further said that Mrs. Briscoe told him that John Francis Briscoe had arrived home in the vicinity of 2:30 a.m. Dr. Monteiro further advised that he is the proprietor of the Boarding House at 102 Kent Avenue and that the referenced John Francis Briscoe has been employed by him for the past several weeks during the course of which Briscoe had occasion to be on the premises of and within the building of the Boarding House.
6. That at 7:45 a.m. today, during the course of preparation of this Affidavit Joseph E. Chase appeared at my office and advised that he is the owner of the referenced Mercury automobile and that, while he had attended no dance during the course of the evening, John Francis Briscoe, his neighbor, had requested permission to use the car and that he, Chase had given Briscoe the keys to it. Mr. Chase told me that he assumes Briscoe did in fact use the car inasmuch as he noticed that when he approached it this morning it appeared to have been moved from the location in which he had parked it. Mr. Chase denied having accompanied Briscoe to a dance during the course of the evening.
7. WHEREUPON your affiant believes that there is reason to expect that the referenced automobile and trailers contain material of an evidentiary value in the investigation of this case, particularly items of clothing, the reportedly stolen paycheck and silver dollars, as well as mud droppings suitable for comparison with those found at the crime scene.” (Emphasis added.)

On the basis of the above facts, the judge concluded that there was probable cause to search Joseph Chase’s car and residence and the residence of the appellant.

The appellant argues that the use of the bloodhound to detect the trail of a perpetrator of a crime is equivalent to the use of an informer, and that the use of the affidavit is totally defective for the reason that it fails to specify the facts upon which the affiant concluded that the information from the dog was reliable.

An affidavit in support of an application for a search warrant may be based on hearsay so long as there is a substantial basis for crediting the hearsay. Rugendorf v. U. S., 376 U. S. 528, 84 S. Ct. 825, 11 L.Ed.2d 887 (1964).

The judge must be informed (1) of the underlying facts upon which the informer has based his conclusion, and (2) the circumstances from which the affiant has concluded that the informant was credible or his information reliable. Spinelli v. U.S., 393 U. S. 410, 89 S. Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L.Ed.2d 723 (1964).

The difficulty in the present case is not with the first prong of the above test but with the second prong, the “veracity” prong. The veracity prong, as pointed out in Thompson v. State, 16 Md. App. 560, 298 A. 2d 458 (1973) is “significantly phrased in the disjunctive.” The two questions therefore are whether the affidavit sufficiently spelled out the bloodhound’s “credibility” or if not, “Was the information furnished under circumstances giving reasonable assurances of trustworthiness?” 16 Md. App. at 566, 298 A. 2d at 461.

The appellant would have us rule that the same strict standards which apply to unnamed police informants also apply to police tracking dogs. This same proposition was rejected in the case of United States v. Meyer, 536 F. 2d 963 (1st Cir. 1976). In Meyer a police dog’s positive reaction to certain camera boxes and bag belonging to the defendant was used to establish probable cause in obtaining a warrant to search for drugs. The defendant contended that the affidavit supporting the warrant was defective because it merely described the dog as “trained.” The Court, in rejecting the contention that information received from a police canine must meet the same rigid standards as information from an unidentified police informant, stated:

“The same concerns that would be present in a human informant are simply not relevant here. Cf. United States v. Pond, 382 F. Supp. 556 (S.D. N.Y. 1974). An acute sense of smell is characteristic of canines, but out of the ordinary in humans. Moreover, a canine, when trained, reacts mechanically to certain cues in his environment.” 536 F. 2d at 966.

The Courts of Maryland, while never having dealt specifically with a “canine informant” have recognized certain sources as more reliable than others. In Dawson v. State’ 14 Md. App. 18, 284 A. 2d 861 (1971), Judge Moylan in his concurring opinion pointed out that:

“... it is implicit in the Supreme Court’s treating of Aguilar-Spinelli problems that the rules set out for establishing an informant’s credibility are aimed primarily at unnamed police ‘informers’ rather than at that broad class of secondary sources who are the victims of crime, the disinterested witnesses of crime, other disinterested civilian sources of information or other law enforcement officers. The members of this broad class are generally, but not universally, named. They are not from the criminal milieu.” (Footnotes omitted.) 14 Md. App. at 33, 284 A. 2d at 869.

To be included in the “broad class of secondary sources” are police tracking dogs, such as the one used in the case at bar.

The affidavit in this case, unlike the one in the Meyer case, did not specifically state that the dog was “trained.” That fact, however, was implicit in the sentence which stated, “Officer Gale Willett of the Charles County Sheriff’s Department ... requested assistance of the Department’s Mobile Crime Laboratory and bloodhound.” In determining whether the above description adequately sets forth a basis for reliability, we are guided by United States v. Ventresca, 380 U. S. 102, 85 S. Ct. 741, 13 L.Ed.2d 684 (1965), where the Court pointed out that if the constitutional policy of searches pursuant to warrants is to be served, affidavits for search warrants:

“... must be tested and interpreted by magistrates and courts in a common sense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area.” 380 U. S. at 108, 85 S. Ct. at 746, 13 L.Ed.2d at 689.

When the judge reviewed the affidavit under consideration, he could have realistically assumed that the bloodhound procured from the Sheriffs Department was trained and experienced in tracking. To assume otherwise defies common sense.

It is our opinion therefore that the affidavit, considered in its totality, was sufficient to satisfy the second prong of Aguilar. Moreover, from all the facts contained in the affidavit including the evidence of the tracking, a judge could reasonably conclude that there was probable cause to search the appellant's residence.

The search warrant authorized the police to search for items of clothing, the stolen paycheck and silver dollars, as well as mud droppings suitable for comparison with those found at the scene of the crime. In the process of searching the dwelling for the above items, one of the officers lifted a mattress and saw a shotgun stock with a long string attached. The stock was seized and later admitted into evidence. The appellant contends that because the shotgun stock was not one of those items particularly described in the affidavit, its seizure was improper and its admission into evidence was erroneous.

We conclude that the seizure of the shotgun stock and its admission into evidence was proper under either of two theories. The affidavit states that a shotgun was used during the commission of the crimes. The search and seizure warrant authorized the police “to seize all evidence and paraphernalia found which may be in connection with purported violations of the aforementioned crimes statutes.” Assuming that the police had knowledge that a string had been attached to the butt plate of the shotgun and that a shotgun was used in the commission of the crimes, along with the affidavit stating a shotgun was used, gave the police probable cause to seize the stock of the shotgun with the string attached. In addition, assuming that the police did not have probable cause the seizure of the gun stock was permissible under the plain view doctrine as set forth in Coolidge v. New Hampshire, 403 U. S. 443, 91 S. Ct. 2022, 29 L.Ed.2d 564 (1971). This Court in discussing the plain view exception to the warrant requirement, stated in Smith v. State, 33 Md. App. 407, 365 A. 2d 53 (1976):

“Under the plain view doctrine, a warrantless seizure of incriminating evidence may be permitted when the police are lawfully searching a specified area. For the warrantless seizure to be constitutionally valid under the plain view doctrine, however, it must be established that the police had prior justification for an intrusion into the area searched, that the police inadvertently came across the item seized, and that it was ‘immediately apparent’ to the police that the item seized was evidence.” 33 Md. App. at 410, 365 A. 2d at 55.

In executing the search pursuant to the warrant, it was eminently reasonable for the police to look under a logical hiding place such as the appellant’s mattress. When they did so it was immediately apparent that the shotgun stock was evidence. The evidence revealed that the victim told police that her assailant pointed a shotgun at her which had a long string hanging from the end. When the officer saw the stock with the string it was immediately apparent that the stock was the one which may have been used in the crime. The seizure therefore came within the plain view exception and its admission into evidence was proper. Under either of doctrines stated above no error was committed in the seizure of the shotgun stock and its admission into evidence.

II.

The appellant next contends that the evidence was insufficient to establish that there was force used in the rape; that there was penetration, or that the act was committed by someone other than the complainant’s husband.

Force is an essential element of the crime of rape. State v. Merchant, 10 Md. App. 545, 271 A. 2d 752 (1970). In this case there was more than sufficient evidence that force was used. The assailant broke into the victim’s home, pointed a shotgun at her and tied her up. Such action would reasonably create in the mind of the victim an apprehension of serious harm, sufficient to overcome her will to resist. Such acts establish force. State v. Merchant, supra.

As to the issue of penetration, the victim testified on two occasions that there was penetration. In addition, the examining physician testified there was motile sperm present in the victim. This evidence was more than sufficient to sustain the conviction. McEntire v. State, 2 Md. App. 449, 235 A. 2d 311 (1967).

The appellant, relying on Mullaney v. Wilbur, 421 U. S. 684, 95 S. Ct. 1881, 44 L.Ed.2d 508 (1974), contends there was no testimony that the victim was not the wife of the appellant and that the State therefore failed to prove all the necessary elements of the crime. The Court of Appeals has defined rape as “the act of a man having unlawful carnal knowledge of a female ... by force without the consent and against the will of the victim.” Hazel v. State, 221 Md. 464, 468-69, 157 A. 2d 922, 924 (1960). The question of the nonspousal character of the offense is not an element of the crime, but is an affirmative defense which was never raised below. As the issue was never properly generated by the evidence, the State did not have the burden of negating it. State v. Evans, 278 Md. 197, 362 A. 2d 629 (1976).

III.

When the State called William Brown of the Charles County Sheriff’s Department, appellant objected to his testifying on the ground that Brown was not a reliable trainer or handler; that the bloodhound he used was not shown to be properly trained or reliable, and that the evidence of the tradings was speculative. The trial court conducted an examination outside the jury’s presence and found Brown competent to testify as to the investigation he and the bloodhound undertook.

This Court dealt with the admissibility of trailing by dogs in the case of Terrell v. State, 3 Md. App. 340, 239 A. 2d 128 (1968). The Court in Terrell ruled that before any evidence pertaining to the results of a dog’s tracking are admitted in evidence, a proper foundation must be laid. The handler must testify as to his own qualifications and experience and that of the dog, along with an account of the dog’s ability to track. Next, the circumstances pertaining to the trailing itself must be shown. For example, was the trail fresh, or was there other traffic in the area, or were the dogs interfered with while tracking, or were the dogs placed on the trail at a point where the perpetrators were reasonably assured to have been?

The above requirements were met in this case. The dog’s handler, Officer Brown, had over seven years of experience in handling bloodhounds. He had attended seven different training sessions sponsored by the National Police Bloodhound Association. Officer Brown stated he had used dogs fifty times in trying to locate people and had “good success.” With the bloodhound used to search for appellant, he had had “three or four successful finds” and had trained the dog over the previous two and a half to three years. The testimony established that the dog was retrained in tracking persons on a monthly basis.

Deputy Brown had arrived at the scene about an hour after the rape. The dog was exposed to mud on the floor left by the assailant and the striped sweater found at the rear of the residence, which matched the description of the one worn by the assailant. The dog was ordered to “find.” From the back porch of the residence the dog followed the trail to the parking lot of the drug store, when she lost the scent.

The above evidence fully complies with the guidelines laid down in Terrell. The trial court, therefore, did not err in admitting the evidence of the tracking.

Finally, appellant claims that the trial court erred in failing to give the missing witness instruction.

The basis for the request was that a large number of items had been sent to the F.B.I. laboratory by the Charles County Sheriff’s Department for analysis. These items included clothes, blankets, towels, sheets, pubic hair, head hair, soil samples, carpet samples, blood samples, and saliva samples. Agent Burwitz, an expert in the identification of hairs and fibers, was called to testify about only a portion of the items and only in relation to his specialty of hairs and fibers. The appellant contends that the fact that the other items, which also underwent scientific tests, were not testified to was an indication that the results of the tests were favorable to the defendant.

The missing witness rule, as stated in 1 Underhill, Criminal Evidence, § 45 (rev. 6th ed. P. Herrick 1973), is:

“The failure to call a witness raises a presumption of inference that the testimony of such person would be unfavorable to the party failing to call him, but there is no such presumption or inference where the witness is not available, or where his testimony is unimportant or cumulative, or where he is equally available to both sides.”

In the case at bar, the missing witness and the test results were as available to the appellant as they were to the State. For this reason the trial judge did not err in refusing to give the missing witness instruction. Christensen v. State, 274 Md. 133, 333 A. 2d 45 (1975).

Judgments affirmed.

Appellant to pay the costs.