text:
    MAYOR AND CITY COUNCIL OF BALTIMORE v. HAROLD Y. SMULYAN et al.
    [No. 509,
    September Term, 1978.]

      Decided January 12, 1979.

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

      T. Thornton Murray and Richard K. Jacobsen, Assistant City Solicitors for Baltimore City, with whom were Benjamin L. Brown, City Solicitor, and Ambrose T Hartman, Deputy Solicitor, on the brief, for appellant.

      Arnold M. Weiner, with whom were Joseph S. Kaufman, Glenn E. Bushel and Melnicove, Kaufman & Weiner, P.A. on the brief, for appellees.
   Wilner, J.,

delivered the opinion of the Court.

This is a condemnation case. It involves property in downtown Baltimore that is now part of the front lawn of the new Federal Courthouse, and, until Baltimore City condemned it in December, 1972, belonged to Harold Smulyan.

The real issue in the case, of course, is how much Mr. Smulyan should be paid for his property: what was its fair market value on December 4, 1972? The City’s appraisers testified that the fair market value on that date was between $400,000 and $420,000 — one said $400,000, the other said $420,000. Mr. Smulyan’s experts, not unexpectedly, thought the property was worth considerably more — one said $745,880, the other said $840,000. The jury topped them all; it set the value at $895,104 and returned a verdict upon inquisition in that amount.

The City, appealing, claims that this grievous error occurred because the jury was permitted to hear evidence of what it termed a “re-use” appraisal made by one of the City’s experts — Leslie Wilson — that was irrelevant and prejudicial, and that the trial court erred both in allowing such evidence to be admitted and in failing to instruct the jury to disregard it. The City frames the questions presented in its appeal in very broad terms — much broader than is necessary. What is really before us are these three questions, all of which are very closely interrelated:

(1) Did the court err in admitting testimony and exhibits relating to a 1971 appraisal made by one of its expert witnesses — Leslie Wilson?
(2) Did the court err in its instructions to the jury with respect to that appraisal?
(3) Was the evidence sufficient to support the jury’s verdict?

The context in which these questions — particularly the first two — arose was a dispute between the City and Smulyan over what the “highest and best use” of the property was as of the date it was taken. At that time, the property was being used as a parking lot. It was part of a square block consisting mostly of old multi-story loft buildings used for light manufacturing or wholesale trade enterprises. The City’s position, espoused through its expert, Mr. Wilson, was that the highest and best use of the property was its then current actual use — a parking lot. Smulyan, on the other hand, considered the City’s position to be somewhat myopic, and therefore unrealistic. Through his appraisers, he looked around to the extensive redevelopment effort that had been going on in downtown Baltimore for some two decades, adjudged that his property and the block of which it was a part was next in line for major renewal and redevelopment, and thus believed that the highest and best use for the property was a high-rise office building.

This dispute over “highest and best use”, so pivotal to the respective values placed upon the property, constituted the setting from which the legal issues arose. To comprehend that setting however, one must know as well some of the geography of downtown Baltimore, the nature and history of urban redevelopment in that part of the City, and how that redevelopment came to affect this property. We have attached as an appendix to this Opinion a copy of a map of downtown Baltimore that was admitted as an exhibit in the case, and have delineated and marked on it the relevant boundaries and landmarks. It will serve as a convenient reference document for the descriptions that follow.

There were three major urban renewal projects that had some bearing on the Smulyan property. These were:

(1) Charles Center, involving a 33-acre tract bounded by Saratoga Street on the north, Charles Street on the east, Lombard Street on the south, and Liberty Street and Hopkins Place on the west. This project — the earliest of the three — was planned in the 1950’s and built in the 1960’s and 1970’s, beginning at the northern end and moving south. On the southernmost border — the north side of Lombard Street — is the new Federal Office Building (labeled by us “FOB” on the Appendix) and Charles Center South, a high-rise office building at the northwest corner of Charles and Lombard Streets. By the time of the taking here, most of Charles Center, including the Federal Office Building, had been completed.

According to Martin Millspaugh, a witness for the City who was deeply involved in the planning and coordination of much of the overall redevelopment, Charles Center was intended “to lead the way ... and to stimulate additional development of the same kind in the downtown area”, and it clearly had that effect. Paralleling the development of Charles Center itself, there was extensive private redevelopment on its eastern fringe, resulting in the construction of at least five additional high-rise buildings just outside the perimeter of Charles Center.

(2) Inner Harbor One. While Charles Center was yet in its infancy, a second, even more ambitious, project was on the drawing board — redevelopment of the City’s inner harbor area. This is a much larger area lying to the south and southeast of Charles Center, and plans for it were broken into two projects — Inner Harbor One and Inner Harbor West.

The planning for Inner Harbor One started in earnest in the early and mid-1960’s. This project encompassed the land area east of Charles Street, south of Lombard Street, and north of Key Highway, thus enclosing the inner harbor basin located to the southeast of Charles Center. By 1972, according to Mr. Millspaugh, most of the redevelopment sites in this area had been sold to developers, and demolition of existing structures on those sites was about 75% complete. One large new structure — the U.S.F. & G. Building — had been “topped off”, and plans were under way for the new IBM Building.

(3) Inner Harbor West — the second phase of the overall inner harbor redevelopment — was officially authorized in March, 1971. It encompassed the area directly west of Inner Harbor One and directly south of Charles Center, being bounded on the north by Lombard Street, on the east by Charles Street, on the south by Hughes Street, and on the west by Sharp Street and Hopkins Place.

The Smulyan property lay within the Inner Harbor West area. It was part of a square block (which we shall call the “Courthouse block”) bounded by Lombard Street on the north, Hanover Street on the east, Pratt Street on the south, and Sharp Street on the west. The Smulyan property itself consisted of three contiguous lots known as 106-114 South Hanover Street. It fronted for 126 feet on the west side of Hanover Street, commencing about 60 feet south of Lombard Street, and extended westerly for a depth of 148 feet to an alley known as Sutton Street. Altogether the property comprised 18,648 square feet.

Most of the evidence pertaining to the overall redevelopment effort in downtown Baltimore came from Mr. Millspaugh, the City’s lead-off witness. The essence of it, as indicated above, was that, by 1972, extensive redevelopment — both in terms of official urban renewal projects as well as private activity on the fringes of these projects — had either been completed or was well under way to the north and the east of the Smulyan property, some of it coming within a block or two.

In the course of his testimony, Mr. Millspaugh identified and discussed a number of urban renewal plans — official, semi-official, and non-official — that had been proposed over the years for Baltimore’s central business district, and that encompassed as well the Smulyan property and the area immediately surrounding it. Each of these plans or proposals projected or recommended that the “Courthouse block” in general, or the Smulyan property in particular, would or should be developed for high-rise office use. Mr. Millspaugh concluded this part of his testimony by acknowledging that he knew of no proposal made by any public or private consultant during the preceding one or two decade period “that recommended anything other than high-rise development” for that block.

As noted, the Smulyan property lay within the bounds of the Inner Harbor West development project, and the City’s plans did not call for a Federal Courthouse there. In April, 1969, however, the City learned that a Congressional Committee had authorized construction of a new Federal courthouse in the City, and that the General Services Administration (GSA) would soon begin searching for a suitable site. Working with some City officials, a GSA evaluation team examined 22 potential sites, and ultimately picked the “Courthouse block.” On November 16, 1970, the Mayor concurred in that choice, and advised GSA that “we stand ready to assist you in any way we can (including the use of our local condemnation powers, if necessary) in acquiring the recommended site.”

GSA, initially, showed no interest in having the City involved in the acquisition, but rather proceeded on its own. As soon as the necessary appropriation was forthcoming from Congress, GSA began contacting the various property owners in the block. On January 8, 1971 Smulyan received a letter from GSA advising him that “a portion” of the “Courthouse block” had been selected as the site for a new Federal courthouse, subject to satisfactory subsoil tests. The owner was asked to sign a “Right of Entry” form giving GSA permission to enter the property for purposes of “subsoil tests, appraisal and survey”, and was advised that “[w]e would expect the appraisal to be completed within approximately 60 days, after which time you will be contacted by a representative of this office in order to discuss the purchase of your property.”

Notwithstanding that, at the time, the City had no condemnation authority over this area — the ordinance granting such authority (No. 1007) not being enacted until March 15, 1971 — the City nevertheless attempted to persuade GSA to permit the City to acquire the property on its behalf rather than for GSA to make the acquisition directly. The City’s first two proposals in this regard were rejected by GSA, but on May 10, 1971, the City put forth a third proposal — to acquire the entire block and sell GSA what it needed for the courthouse at “fair market value.” In connection with this proposal, Millspaugh authorized the employment of Leslie S. Wilson, Jr., and Charles F. Seymour, both M.A.I. appraisers, to prepare a report on the “fair value” of Development Area 4-A (see Footnote 4). Mr. Wilson’s understanding was that the appraisal report was to be made “under development allowed by the Baltimore City Zoning Ordinance and Building Codes without any renewal or development Standards and Controls.” (Emphasis supplied.) He said, in his letter accepting the employment,

“We are sure you must realize the great latitude this allows relative to highest and best use. This necessitates our analyzing the complete downtown Baltimore Market in order to arrive at a conclusion regarding highest and best use. It will then be necessary for us to determine in our opinion the intensity of this probable development as indicated by the market. From this we will be able to estimate the value of the subject site based upon the usual appraisal processes including comparable sales and an income check.” (Emphasis supplied.)

On June 22, 1971, Wilson and Seymour delivered their “preliminary estimate” to the City. Reciting again that the value is to reflect “an open market sale of this site” with development restricted only by building and zoning codes, they concluded that the “highest and best private use” of this site would be for the construction of “speculative office space, automobile garage parking and related facilities”, that in view of the size of the property (102,250 square feet) development would “have to be staged”, and that “a reasonable price for the sale of this property at this time would be not less than $3,100,000 nor more than $3,275,000.”

On July 1, 1971, the City sent a proposed “Letter of Understanding” to GSA. This letter called for the City to acquire Area 4-A, clear it, and then to convey the property to the Government “at its fair market value which is estimated to be no less than $3,100,000 and no more than $3,275,000.” (Emphasis supplied.) The letter made clear that the actual “fair market value”, and thus the ultimate price, “will be based on an independent appraisal prepared by a member or members of the Appraisal Institute” subject to the approval of GSA and the City.

This proposal was initially rejected by GSA, but the snag that apparently led to that rejection was soon resolved. On August 11,1971, Millspaugh authorized Wilson and Seymour to “proceed with the preparation of your final report on the fair value of Development Area -4a ...” and, on August 16, the City renewed its offer to acquire Area 4-A and sell it to the Government “for an estimated $3.1 million”, noting again that this was a preliminary estimate of “fair market value” and that the “final determination of value” would be incorporated in the appraisal report of the “team of independent real estate appraisers” that had made the preliminary estimate.

On August 27, 1971, the final appraisal — the document that generated the issues raised in this appeal — was delivered. It valued the land in Area 4-A, for its highest and best use as of August 24, 1971, at $3,238,000, or $31.65 per square foot.

Wilson and Seymour stated that the “highest and best use” for Area 4-A was office building construction which, because Baltimore had not been plagued with “overbuilding” like some other cities, was a use that “is reasonable and can be achieved.” However, because of the large size of the total area, they believed that the market would not be able to absorb the immediate full development of the entire 102,250 square feet; so they divided the area into three equal-sized parcels — A, B, and C — each containing 34,083 square feet, and valued each parcel separately.

The purpose of the appraisal, they said, was to estimate “the fair value” of Area 4-A, “as if cleared of buildings and available for use under certain conditions and assumptions as of the current date.” The term “fair value”, as used in the report, was defined as “the price which a well informed buyer acting intelligently, voluntarily and without necessity would be warranted in paying and a well informed seller acting intelligently, voluntarily and without necessity would be warranted in accepting for the property.” Also in explanation of the “purpose” of the appraisal, they noted:

“The only restrictions regarding the use of Area No. 4-A are those imposed by Zoning Ordinance and Building Codes of Baltimore City. We have been advised that this is the only lot within the Inner Harbor West Project which will not be limited by redevelopment Standards and Controls. All lots in Charles Center were subject to Urban Renewal type restrictions as will those contained in the Inner Harbor I Project.”

As stated in their letter accepting the employment, Wilson and Seymour used both a “comparable sale” and a “land residual or income check” approach in determining the fair value. They rejected sales within the confines of Charles Center or Inner Harbor One because of the urban renewal restrictions on those sites, which made the land sale prices too low to be comparable. Instead, they considered six other sales, all for private high-rise development, which they deemed “significant”.

Wilson and Seymour made no attempt in the appraisal report to locate the boundaries of their hypothetical Parcels A, B, and C within the perimeter of Area 4-A, although in his deposition, which he affirmed from the witness stand, Wilson described Parcel A as beginning at the corner of Lombard and Hanover, and extending 211 feet on Hanover Street and 161 feet on Lombard Street. It thus included the Smulyan property, which comprised about 55% of the total area of Parcel A. The highest and best use of Parcel A, the appraisers said, “[a]s of the effective date of this appraisal”, was as “the site for the construction of a multi-tenant high-rise office building comprising a net rentable area of 350,000 square feet and an above ground automobile parking garage to accommodate 150 automobiles.” Parcel B was considered for the “same development” as Parcel A, but five years hence. Parcel C, they said, would be developed in 10 years in a similar way but with a smaller structure — 150,000 square feet of office space and parking for 75 cars. During the interim, Parcels B and C could be used for parking lots.

Because the development of these parcels had to be “staged”, each was given a different value. Parcel A was valued at $1,622,250, which worked out to $48/square foot. Parcel B was valued at $1,007,255, which worked out to $29.55/square foot, and Parcel C was valued at $269,850, or $7.92/square foot. Additional values of $129,208 and $209,440 were added to Parcels B and C, respectively, to take account of interim uses pending development; and that brought the grand total to $3,238,000, or $31.65 per square foot.

Copies of this appraisal report were sent to GSA on October 8, 1971. GSA responded that it needed additional data with respect to total acquisition costs of the “Courthouse block”, which the City asked Wilson to provide. On December 13, 1971, Wilson responded with his estimate that the cost to GSA, if it decided to assemble the block itself, would be $3,793,410, of which $3,169,675 would be for “Site Acquisition”, $248,735 for site clearance, $350,000 for relocation expenses, and $25,000 for appraisal and title reports. On top of this, Wilson added 5% for “probable jury awards over appraised values” and court costs, making a gross estimated cost of $3,983,080. Even this gross figure did not include, he said, additional costs sure to be added if GSA, which either did not have or would not exercise “quick take” powers, had to wait any appreciable time to complete the acquisition. The site acquisition cost, Wilson noted, was based upon an appraisal he had made of the block in February, 1970, at which time he estimated the acquisition cost to be $2,881,525. To this, he added an inflation factor of 10%, or $288,150, to make the $3,169,175.

Following this, by letter of January 24, 1972, the City formally offered to sell Area 4-A to GSA for the appraised value of $3,238,000. GSA thus had before it the City’s firm offer to sell the land, cleared for construction, for $3,238,000 and Wilson’s estimate that if GSA proceeded on its own to acquire the properties, the cost would likely be at least $760,000 more. A month later, GSA accepted the City’s offer.

This was the background of the City’s condemnation of Mr. Smulyan’s property in December, 1972. By the time of trial, the whole of Area 4-A had, of course, been sold to the Government at the agreed price of $3,238,000.

The chief appraisal witness for the City in the condemnation case was the same Leslie Wilson. He stated that he was commissioned by the City to appraise the Smulyan property in January, 1970. At that time, the property consisted of a parking lot and was surrounded by older four and five story buildings. The appraisal that he made in 1970, he said, was based upon a comparison with “other lands in the neighborhood that had sold” and a capitalization of his estimate of “the rental I thought the property should receive from a parking structure.” In 1972, he brought the 1970 appraisal “up to date”.

In both instances, Wilson said, the highest and best use for the property was for a parking lot. In making this determination, he said that he ignored completely anything pertaining to the Inner Harbor West project, and looked only at the uses to which the property, and the property immediately surrounding it, were then put. To ascertain value, Wilson said that he examined “as many properties that had sold in the, I say reasonable past, in the vicinity of the subject property.” He considered the location and characteristics of these other properties in relation to the Smulyan property “in order to arrive at the answer, of what I felt the answer would be for the value of the subject property based on these other sales that took place.”

Mr. Wilson thereupon listed seven sales which he deemed to be comparable, and which he considered in estimating the fair market value of the Smulyan property in 1970 and 1972. None of the six “significant” sales referred to in the 1971 appraisal was considered as “comparable” for purposes of the 1970/72 appraisal, and only one of the seven sales that were considered involved land purchased for high-rise development. The rest were either much smaller lots than Smulyan’s or were lots located several blocks to the west, in the retail shopping district where there was little or no high-rise office development.

Based upon the seven “comparable” sales, and allowing for inflation since they occurred, Wilson estimated the value of the Smulyan property as $21/square foot, or $391,508, which he rounded off to $400,000.

Having concluded, for purposes of this appraisal, that the highest and best use of the property was as a parking lot, Wilson’s “income approach” to valuation was to estimate “the rental I thought the property should receive from a parking structure.” He figured that the lot should produce a return of $1.80/square foot, or $33,566 annually. Deducting 5% for vacancies, the net return, he said, would be $31,800 which, capitalized at 8%, produced a value of $398,600. Again, he rounded this off to $400,000 which was his final estimate of value.

The City noted its first objection to evidence pertaining to the 1971 appraisal during the testimony of Mr. Millspaugh. It then asked for a “blanket” objection to “any mention” of what it termed “the re-use appraisal” on the basis that Millspaugh was not an appraiser (and thus presumably incompetent to testify as to the appraisal) and because “it’s improper to be using this particular re-use appraisal in a case on acquisition.” At that point, Smulyan proffered to the court that the 1971 appraisal was admissible both for purposes of cross-examining Mr. Wilson when he testified, in that it contained statements and conclusions inconsistent with what his trial testimony would be, and also as substantive evidence upon the theory that the City had “adopted” the appraisal in its dealings with GSA, thus making it an “admission” by the City as to value. After some discussion, the court, in effect, sustained the City’s objection to the point of not allowing Millspaugh to testify about the appraisal. The clear import of the court’s ruling at that point was that the 1971 appraisal was not admissible as substantive evidence of value; and Millspaugh thereafter did no more than identify various letters and documents relating, directly or indirectly, to the appraisal, without mentioning any conclusions or opinions stated in the appraisal report.

The question next arose during the cross-examination of Wilson. The City then renewed its objection on the basis that the 1971 appraisal was “an entirely different ball game and entirely different piece of property” — that it was made for a different purpose and upon different assumptions. Though unarticulated, the basis of the objection was that of relevance. Smulyan again asserted that evidence pertaining to this appraisal was admissible on essentially the same grounds argued earlier. The court reviewed the 1971 appraisal in chambers, and then concluded:

“I am not prepared to rule, in fact I don’t rule that this appraisal is absolutely inadmissible. I think it’s not a question of admissibility but a question of weight to be afforded it under proper instructions to the Jury at the appropriate time, and I’m going to overrule the objection because, as I just said, I think it is a proper area for cross-examination.”

Following this ruling, Wilson was cross-examined in great detail about the differences between the two appraisals. After some hesitation, he finally located Parcel A on a map and acknowledged that Smulyan’s property comprised about 55% of it. He acknowledged further that under the very liberal zoning applicable to Smulyan’s property in 1972, a high-rise building containing 259,000 square feet could have been constructed on it. And he was cross-examined with respect to those sales he believed were “significant” in 1971, those he felt were “comparable” in 1972, and why they differed. On re-direct examination, Mr. Wilson attempted to explain the differences between a “re-use” appraisal and an “acquisition” appraisal.

Following Mr. Wilson, Phillip E. Klein, another M.A.I. appraiser, was called by the City. He too appraised Smulyan’s property in 1970, updating his appraisal in July, 1972. In contrast to Mr. Wilson, Klein stated that the highest and best use for the property was “as an assemblage with an interim use for parking.” (Emphasis supplied.) Nonetheless, by considering five sales which he deemed to be comparable, only two of which were considered by Wilson in his 1970/72 appraisal, he essentially concurred with the valuation made by Wilson. Klein said that Smulyan’s property was worth $420,000.

The City concluded its case by calling Charles F. Seymour, Wilson’s collaborator in the 1971 appraisal, to testify about the differences between a “re-use” and an “acquisition” appraisal. Seymour was not asked about the actual content of the 1971 appraisal on direct examination. On cross-examination, he acknowledged that because Area 4-A — the property appraised in 1971 — had no Urban Renewal standards or controls on it, to that extent it differed from all other “re-use” appraisals he had done. A “re-use” appraisal, he said, usually assumes urban renewal land use controls. It differed also, he admitted, in that normally in a “re-use” appraisal, there are “insufficient, inadequate, and uncomparable comparables in the market data approach”, whereas in this instance there were “sufficient and adequate comparables.”

Smulyan’s case may be quickly summarized. Smulyan testified that he purchased the first of the three contiguous lots (110-114 South Hanover) in 1955 to house his clothing business. After retiring from that business in 1958 following a heart attack, he purchased the other two lots (108 and 106 South Hanover) in 1962 and 1965, respectively. His intention, he said, was to hold the property for development or to create a larger parcel of land. He stated that he had spoken with neighboring owners in an effort to purchase additional property and was told, in effect, that if they ever decided to sell, they would let him know. In answer to 'the court’s question of whether he had any plan for the “ultimate usage” of this property, he said that his goal was to put a high-rise building on the land — the more land he could assemble, the more “impressive” the building could be — but that he had enough at that point to put “a beautiful highrise building on it.”

Finally, Carl- Heinmuller and Bernard Manekin, both qualified experts, gave their opinions as to value. Both believed that the highest and best use of the property was for a high-rise office building, and both reached that conclusion, and their conclusion as to value, by looking at all of the massive redevelopment going on around the subject property. The essence of their testimony was that Smulyan’s property, with its extremely liberal zoning, had become strategically situated, and was simply in the path of the converging downtown renewal.

At the conclusion of the case, the court defined (correctly and without objection) what “fair market value” meant. It noted that there had been “diversions of testimony” as to what the highest and best use of the property was, and that it was up to the jury to make that determination. If the jury believed that the highest and best use was as part of an assemblage with other property that Smulyan “might have reasonably been able to assemble”, the jury could consider any increase in value resulting from such assemblage. They might consider also any enhancement in value by reason of the proximity of the property to “the development of other public projects such as the Charles Center Project and the Inner Harbor One Project or any private development within this area”, but they were instructed not to consider any enhancement in value attributable to the Inner Harbor West project.

Finally, the court referred to the two appraisals done by Mr. Wilson, and told the jury:

“Now, these appraisals then were for two different reasons and you must keep that in mind; one solely for the condemnation of the subject property, the other for the use of the whole block in connection with the negotiations with the Federal Government in a proposed sale to the Federal Government by the City of the whole block, but for whatever substance that this evidence may be to you, in weighing the voluminous testimony in this case regarding property values in the area, the immediate, the general area with which we are concerned in this case, you may, and I’m not saying you must, but you may, if you see fit to do so, you may consider the similarities or the dissimilarities in the factors which were used by the City appraiser in the reuse and in the acquisition appraisal. I say that you may use these similar or dissimilar factors solely for the purpose of judging the weight or the value or the credibility of the ultimate opinion which the City appraisers gave as to the fair market value of this property in this condemnation proceeding; but you cannot use any reuse appraisal in order to enhance the value of this subject property because I’ve told you, and I hesitate to repeat it, but I should repeat it again in this context, you cannot use any enhancement which was brought about by the project itself in which the subject property is located.”

The City’s first complaint, as noted, was that the court erred in permitting the jury to hear any evidence pertaining to Wilson and Seymour’s 1971 “re-use” appraisal. Smulyan counters, preliminarily, that the City failed to preserve its objection (1) by failing to object to the cross and re-cross examination of Wilson or to the actual admission of the 1971 appraisal report and documents pertaining to it, and (2) by examining Seymour about the appraisal, and failing to object to the cross-examination of Seymour. As to this, we believe that the record as a whole shows that the objection was preserved.

The City objected, and indeed asked for a “blanket objection”, to “any mention of the re-use appraisal” when the subject first arose during Mr. Millspaugh’s testimony. It won that first skirmish when the court precluded Millspaugh from discussing the appraisal and declined to admit into evidence at that point the various letters and documents pertaining to the appraisal. The City again made a timely objection when defense counsel indicated his intention to begin cross-examination of Mr. Wilson about the 1971 appraisal, and left no doubt that its objection remained a general one. It believed that the 1971 appraisal was irrelevant and should not be brought into the case. When the court permitted cross-examination of Wilson to proceed, however, it decided the issue raised by the City’s objection; and, by failing to object to each further question or exhibit, the City was simply acquiescing in the court’s ruling rather than manifesting a waiver of its twice-stated objection.

We do not, and, of course, may not, depart from the oft-stated rule that an objection to evidence may be deemed waived if the same evidence is permitted to come in subsequently without objection. See, for example, State Roads Comm. v. Bare, 220 Md. 91 (1959). However, there are some practical limits to what counsel must do, or refrain from doing, in order to preserve the objection. When a party makes a clear objection to specific evidence and that objection is plainly overruled, he is not required to play the ostrich and simply ignore the evidence, or its potential effect upon his case, for fear of losing his ground for appeal. He may cross-examine (or, in this instance, re-directly examine) the witness about the evidence, Peisner v. State, 236 Md. 137, 144 (1964), and make other reasonable efforts to show that the evidence, admitted over his objection, should nevertheless be discounted or disregarded by the trier of fact. This is all that the City did in this case, and it is quite different from soliciting (or failing to object to) the independent reception of the same evidence, from which a waiver may be implied.

The problem, for the City, was not that its objection was waived, but rather that the court’s ruling on it was correct.

Nichols (5 Nichols on Eminent Domain, § 18.45(2) (3rd ed., 1969)) states generally that “[t]he scope of cross-examination of experts and other witnesses who have testified to value in land damage cases is very broad, since cross-examination is often the only protection of the opposing party against the unwarranted estimates that a certain class of mercenary experts is wont to indulge in.” In that context, Nichols goes on to say:

“He [the expert] may be questioned as to his appraisals of other property in the area which he has made, but only if a foundation has been laid for comparison of the different tracts appraised. Cross-examination of the expert as to other appraisals made by him of neighboring land made at a time which is not too remote is permissible. And, of course, he may be examined with respect to an earlier appraisal which he made of the subject property.”

These statements are fairly reflective of what the courts have held. The Idaho court observed in State ex rel. Symms v. Cole Fire Protection District, 451 P. 2d 1011, 1012 (Idaho, 1969):

“Absent an opportunity to show that an expert witness is not really qualified, one of the few ways an opposing party has to question his credibility, other than by mere contradictory testimony of other witnesses, is to show the witness has made other apparently inconsistent appraisals of similar property in the approximate area and within a proximate period of time. The witness at that time or on redirect examination has every opportunity to temper such other appraisal or appraisals and convince the jury they are not inconsistent. But the opposing party has every right to raise the spectre of inconsistencies and to attempt to impeach the witness thereby.”

See also Board of Cty. Comm’rs v. H. A. Nottingham & Sons, Inc., 540 P. 2d 1126 (Col. App., 1975); Board of Education v. 14.098 Acres of Land, Etc., 251 A. 2d 835 (Del. Super., 1969); Atlantic Refining Co. v. Director of Public Works, 233 A. 2d 423 (R.I., 1967); City of Renton v. Scott Pacific Terminal, Inc., 512 P. 2d 1137 (Wash. App., 1973); City of Garland v. Stevener, 462 S.W.2d 67 (Tex. Civ. App., 1970); People v. Murata, 326 P. 2d 947 (Cal. App., 1958); Langston v. City of Miami Beach, 242 So. 2d 481 (Fla. App., 1971). Also State Roads Comm. v. Wyvill, 244 Md. 163 (1966).

The City characterizes the 1971 appraisal as a “re-use” appraisal, and, as though there is some magic significance to such an appraisal, asserts that, because it is a “re-use” appraisal, it is thereby ipso facto irrelevant in an acquisition case. Neither the law in general nor the record in this case supports that approach, however.

Mr. Wilson and Mr. Seymour each attempted to define a “re-use” appraisal, and each gave a somewhat different definition. It is not entirely clear, therefore (from this record, at least), just what a “re-use” appraisal really is. Wilson said that a “re-use” appraisal “takes into consideration” the urban renewal plan that is applicable to the property, whereas an “acquisition” appraisal may not take into account any increase or decrease in value attributable to the public project itself. Seymour stated that a “re-use” appraisal is an estimate of the value of property “which has been subjected to the Urban Renewal Process” — i.e., with the property assembled, existing improvements demolished, and streets widened or closed in accordance with the renewal plan. “It’s an estimate”, he said, “of the value of that assembled property, usually subject to extensive standards and controls which run with the land for the life of the Urban Renewal Program.”

Assuming, arguendo, that Wilson and Seymour were expressing the same concept, the common denominator of that concept was that a “re-use” appraisal considers and values property as though it were subject to all of the conditions, restrictions, and controls imposed by the urban renewal plan. The record, however, does not establish, either as a matter of law or as an irrefutable matter of fact, that their 1971 appraisal fell within the bounds of that concept. In sharp contrast to their testimonial definitions, the appraisal report itself, as well as the exchange of letters authorizing the appraisal, makes clear that the value was estimated without regard to urban renewal conditions, controls, or restrictions. Moreover, whereas Wilson, in his testimony, defined the term “fair market value” for purposes of a “re-use appraisal” as taking into consideration the urban renewal plan itself, the term is not defined that way in the appraisal report.

Labels, in this instance, are unimportant, meaningless. Calling the appraisal a “re-use” appraisal, whether or not it is one, does not and cannot change the nature of the appraisal itself. It purported to be an estimate of the fair value of a 102,250 square foot tract of land, 18,648 square feet of which was the very property under consideration in this case. The appraisal was based upon certain assumptions and conclusions as to “highest and best” use and as to what nearby sales were “comparable” that differed significantly from the same types of assumptions made a year earlier and a year later by the same appraiser. Certainly, the City had every right to argue the validity and reasonableness of these differences to the jury, and to suggest that the 1971 appraisal be disregarded. But, as the Idaho court said in State ex rel. Symms, supra, “the opposing party has every right to raise the spectre of inconsistencies and to attempt to impeach the witness thereby.” That, if nothing else, made the appraisal report and the cross-examination concerning it admissible.

The City next argues that the court erred in instructing the jury “that they could consider the re-use appraisal in their deliberations.” That misstates the instruction. The jury was told that “you cannot use any reuse appraisal in order to enhance the value of this subject property”, but that it might use the similarities and dissimilarities between the two appraisals “solely for the purpose of judging the weight or the value or the credibility of the ultimate opinion which the City appraisers gave as to the fair market value of this property in this condemnation proceeding____” In short, the instruction was fully consonant with the court’s evidentiary ruling, and was entirely correct and appropriate.

Finally, the City asserts that the jury’s verdict was unsupported by the evidence. Pointing out that all of the experts opined as to lower values, the City postulates that what the jury did was to accept the $48.00/square foot value placed on Parcel A by the 1971 “re-use” appraisal, multiply that unit value by the 18,648 square feet in Smulyan’s property, and thereby arrive at its $895,104 verdict.

The jury is not bound to accept the opinion of any one, or all, of the experts in arriving at its verdict, but “is free to apply its independent judgment as to the weight of any facts before it.” Greater Balto. Con. Mkt. A. v. Duvall, 255 Md. 90, 97 (1969); Bergeman v. State Roads Comm., 218 Md. 137 (1958). The jury viewed the site, and could see for itself all of the development going on around it. That view, though not sufficient by itself to support a verdict, is substantive evidence. Bergeman, supra, at page 142. In addition to the view, there was testimony from Messrs. Wilson and Heinmuller as to the price of the assemblage at 27-31 South Charles Street, a block and a half away from Smulyan’s property, upon which the First Maryland Building was constructed. Wilson stated that this site was about the same size as Smulyan’s, and sold in 1969 for $58,38/square foot, including demolition. Inflation at the rate of 5% a year, Wilson said, would add an additional $8.75/square foot, making the comparable price over $67/square foot. Mr. Heinmuller believed the sale itself to be a comparable one; and, if the jury accepted that belief, as it had a right to do, that would suffice to support its verdict.

The jury was entitled to discredit the whole approach put forward by the City’s appraisers and it obviously did so. In light of Mr. Millspaugh’s testimony, especially when coupled with that of Messrs. Heinmuller and Manekin, it was entitled to believe that the highest and best use of Smulyan’s property was for a high-rise office building, and not for a parking lot. And it was entitled to believe that his property was therefore worth far more than the $20-$30/square foot brought by properties to the south and west, more even than the $40/square foot Mr. Heinmuller described with respect to an assemblage occurring directly across the street, but less than the $67/square foot brought by the First Maryland Building assemblage. In summary, although the jury may well have done precisely what the City alleges, there was sufficient independent evidence to justify the verdict of $48/square foot; and that is all that counts.

Judgment affirmed; Mayor and City Council of Baltimore to pay the costs.

      . These were the Blaustein Building, the Arlington Federal Building, the Chesapeake and Potomac Telephone Co. Building, the W.R. Grace Building, and the First Maryland Building, all being on the east side of Charles Street between Lombard and Saratoga Streets.

      . Mr. Millspaugh also mentioned briefly the City’s then current effort, which never came to fruition, to interest the Chessie System Railroad in redeveloping the Camden railway yard and station, lying two blocks to the west of the “Courthouse block.”

      . These were the Central Business District Study (CBD) prepared in 1959 by the Planning Council of the Greater Baltimore Committee, Inc. (GBC), a 1964 study done for the Planning Council by Morton Hoffman, a market consultant periodically employed by the City; and a Metro Center Study, prepared in 1970 by the City Planning Commission. The first of these — CBD — stated, in part, that “[a] major change from the present distribution of office space is the proposed expansion of the Office District south of Lombard to Pratt Street, between Howard St. and Light St.” The Metro Center Study, and a 1965 GBC publication entitled “The Inner Harbor & City Hall Plaza” each depict the “Courthouse block” as being improved in the future by new high-rise buildings.

      . The “Courthouse block” contained about 150,000 square feet, of which only 102,250 were needed for the courthouse itself. The City, however, wanted to make certain that the entire block would be acquired in order to assure that the balance of the block could be redeveloped in conjunction with the Federal project. It therefore split the block into two separate “development areas”. Area 4-A consisted of the 102,250 square feet needed for the courthouse, and Area 4-B consisted of the balance, some 45,000 square feet.

      5. The appraisers considered this to be significant. “This lack of usual standards and controls”, they said, “allows complete flexibility in our determination of the highest and best use of this property.”

      . Seymour explained in his testimony that, because of set-back and other use restrictions applicable in urban renewal areas, only about 50% (and sometimes even less) of the square foot land area could be productively developed. This had a depressing effect on value or price. But, in appraising Area 4-A, they were not governed by urban renewal restrictions — only the zoning and building codes. Thus, a far greater percentage of the land area could be productively developed, thereby enhancing the value of such relatively unrestricted land.

      . On September 15, 1971, GSA advised the City that, in accordance with then current Federal regulations, “the value of the property may not exceed ‘the fair market value of the property.as of the base period based on sales of similar or like property.’ ” (Emphasis supplied.) The “base period” was stated to be July 16,1971 through August 14,1971. The copy of the appraisal report sent to GSA reflected that requirement, which resulted in no change in the estimated value.

      . The actual contract was signed on July 26, 1973, and a deed followed sometime in September, 1973.

      . Smulyan, for obvious reasons, has not cross-appealed, and thus the question of whether the court erred in rejecting the 1971 appraisal as substantive evidence of value is not before us.


source: Caselaw Access Project

author: Liss, J.,

license: Public Domain

text:
    JOSEPH I. GOLDSTEIN et ux. v. PENINSULA BANK
    [No. 520,
    September Term, 1978.]

      Decided January 12, 1979.

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

      Stanton J. Levinson, with whom were Gary A. Goldstein and Schimmel & Tatelbaum, P.A. on the brief, for appellants.

      Alexander G. Jones, with whom were Jones & Jones on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

On October 31,1974, the appellants, Joseph I. Goldstein and his wife, Shirley H. Goldstein, executed a demand note to the appellee, Peninsula Bank, in the amount of $125,000.00, providing for interest at the rate of ten percent per annum until the obligation was paid in full. The note authorized a judgment by confession upon default “for any amount which may then be due on this obligation with costs of suit and ten percent, collection charges, and also in behalf of them [the makers of the note] to waive and release all errors and all right to prosecute a petition in error upon such judgment or proceedings.”

As collateral security for the repayment of the indebtedness, the appellants deposited with the bank a “hypothecation of ship mortgage by Paul Curtis Stokes, Jr. on the vessel Sea Filly IV.” The demand note empowered the bank

for the purpose of liquidating any liability of the maker or makers and endorser or endorsers to the holder or holders hereof, and of all interest and costs thereon, to sell, transfer and deliver the whole or any part of such collaterally deposited property or any additions thereto or any substitutions therefor, without any previous demand upon the maker or makers and endorser or endorsers hereof, and without advertisement or notice, either at broker’s board or public or private sale, at any time....

When the appellants defaulted in the payment of the stipulated interest and failed to make any payment on account of the principal, the bank caused a judgment by confession to be entered on December 27, 1977 in the Circuit Court for Calvert County in favor of Peninsula Bank against the appellants in the amount of $134,166.67 with interest from date and the additional sum of $13,416.67 representing collection fees and costs. Appellants were duly notified as required by Maryland Rule 645 b, and on January 18, 1978, they filed a motion to strike the judgment by confession. On February 16, 1978, appellants served a series of initial interrogatories on the appellee seeking discovery as to what disposition had been made of the collateral security for the loan. On March 6, 1978, a stipulation and order was filed extending the time for the bank to file its answers to the interrogatories. On March 31, 1978, appellee filed a new motion extending the time for answers to the interrogatories and on the same date filed a motion ne recipiatur as to the appellants’ motion to strike the confessed judgment. The grounds for the motion ne recipiatur as stated by the appellee were that appellants had failed to comply with the provisions of Rule 645 c which required the appellants to set forth fully the facts relied upon to indicate the appellants had a meritorious defense to the confessed judgment suit, and that the appellants failed to attach to their motion to strike judgment by confession a statement of points and citation of main authorities, as required by Rule 319.

On May 4, 1978, after a hearing in open court, the trial judge granted the appellee’s motion ne recipiatur and denied the appellants’ motion to strike the judgment by confession without leave to amend. It is from these judgments that this appeal was filed.

Two issues are raised by the appeal. They are as follows:

(1) Assuming, arguendo, that the motion to strike the confessed judgment in this case was not in proper form as required by the Maryland Rules of Procedure, were the appellants entitled to a reasonable opportunity to file an amended motion to strike the confessed judgment?

(2) Were the appellants entitled to discovery prior to the disposition of the motion to strike the confessed judgment?

We shall answer both of these questions in the affirmative and shall reverse the judgments in this case.

(1)

The controversy in the case sub judice must be considered in the light of the applicable Maryland Rules of Procedure. Rule 645 c which is concerned with judgments by confession, provides:

Application to vacate, open or modify the judgment must be made by motion within 30 days after service of the summons. The motion shall be made on the ground that the defendant has a meritorious defense to the cause of action. It shall set forth fully the facts relied on for such defense. A copy of the motion shall be served on the plaintiff or his attorney. If no application is made within the time allowed, the judgment shall stand to the same extent as a judgment absolute entered after trial.

Rule 319 states:

Every motion (except a motion for new trial or judgment n.o.v.), demurrer or other preliminary matter requiring action by the court, shall contain or be accompanied by a statement of points and citation of main authorities, which shall be served on opposing counsel, together with the demurrer or motion....

Rule 322 provides:

A motion that any pleading be not received either because it is filed too late or is not properly verified, or for any other reason, as well as any motion to strike out any preceding motion for any reason, may be made either by a motion ne recipiatur or by a motion to strike, or both.

It is conceded by appellants that their motion to strike the judgment by confession was defective in that it was not accompanied by a citation of main authorities. The trial judge concluded that the motion was further defective in that while it stated the appellants had a meritorious defense, it failed to set forth fully the facts relied on for such a defense. Appellants in their motion and in an affidavit made by Joseph I. Goldstein filed with the appellants’ motion alleged that the appellees had received as collateral security the hypothecation of a ship’s mortgage on a vessel known as Sea Filly IV. They alleged further that the appellee had released the collateral and permitted it to be removed from its jurisdiction, thereby impairing the rights of the endorsers so as to release them from all liability. The motion did not, however, give the factual situation surrounding the release of the collateral. Appellants argued that they were caught in a “Catch-22” situation in that the facts were entirely within the knowledge of the bank, and that in the absence of discovery they were unable to give any further factual information to support their allegation that they had a meritorious defense. The appellee, at the ne recipiatur hearing, admitted the ship’s mortgage had been released and the vessel permitted to leave the jurisdiction, but it made no proffer as to the terms of the release of the collateral. The trial judge apparently focused his attention on the fact that the collateral did not belong to the appellants, and that it was admitted the loan to appellants was in default. He said, in the course of his discussion' with counsel:

What is your defense that you don’t owe these people a hundred and twenty-five thousand? That’s all I want to know.
Somebody got a hundred and twenty-five thousand dollars from this bank. Tell me why the bank shouldn’t be repaid the hundred and twenty-five thousand dollars. That’s all I want to know.

The court was correct in granting the motion ne recipiatur because of the failure of appellants to comply with Rule 319. The court was incorrect, however, when it elected to treat the motion ne recipiatur as if it were a demurrer or a motion for summary judgment.

In Millison v. Citizens National Bank of Southern Maryland, 256 Md. 431, 260 A. 2d 324 (1970), the Court of Appeals held it was reversible error for a trial court to grant a motion ne recipiatur where the motion had been used for the same purpose as a demurrer, i.e., to test the sufficiency of the pleadings. The Court relied upon McCormick v. St. Francis De Sales Church, 219 Md. 422, 149 A. 2d 768 (1959), where it stated:

The fact that the Rule states that motions ne recipiatur and to strike may be used, individually, in the alternative, or in combination “for any purpose,” if intended to extend their former scope at all, would not seem to reach so far as to permit them to serve the office of a demurrer, plea, or motion for summary judgment.... 219 Md. at 428.

Accord, Paltrow v. Paltrow, 37 Md. App. 191, 376 A. 2d 1134 (1977), aff’d on other grounds, 383 Md. 291 (1978); Doug-Dun Corp. v. Simms, 31 Md. App. 350, 357 A. 2d 392 (1976). See 2 Poe, Pleading Sec. 668, at 384-85 (1970).

Appellants urge that under the Maryland version of the Uniform Commercial Code they are entitled to certain specific remedies, and that the bank is subject to certain obligations with regard to the disposition of collateral. See Maryland Code (1975) Sections 3-606, 9-501, 9-504, 9-507 of the Commercial Law Article. We express no opinion as to whether these rights and obligations could amount to a meritorious defense to the confessed judgment entered against the appellants. Neither the court below nor this Court had before it any of the information concerning the terms of the release of the collateral.

At the conclusion of the oral argument and after the trial court had ruled that the “motion ne recipiatur [was] granted and the motion to strike the judgment by confession on behalf of the defendants [was] denied,” counsel for the appellants queried, “Do we now then not have the right to more particularly file within fifteen days another motion to strike the judgment?” The court replied, “It is my order that there is a final judgment in this case in favor of the plaintiffs (appellees) against the defendants (appellants) in the amount of $134,166.67.” We think this ruling was error in the light of the decisions of. the Court of Appeals which have stated that the movant’s burden in attempting to strike a confessed judgment is intended to be a minimal one, and that the equitable discretion of the court regarding such an attempt should be exercised liberally in favor of the debtor. See, e.g., Billingsley v. Lincoln National Bank, 271 Md. 683, 320 A. 2d 34 (1974); Stankovich v. Lehman, 230 Md. 426, 187 A. 2d 309 (1963); Remsburg v. Baker, 212 Md. 465, 129 A. 2d 687 (1957).

The court’s refusal to permit the filing of an amended motion to strike the confessed judgment was also in direct contravention of the oft repeated statement by the Court of Appeals that leave to amend should be freely granted in order to promote justice. Crowe v. Houseworth, 272 Md. 481, 325 A. 2d 592 (1974); Jacobson v. Julian, 246 Md. 549, 229 A. 2d 108 (1967); Staub v. Staub, 31 Md. App. 478, 356 A. 2d 609 (1976).

Rule 320 of the Maryland Rules of Procedure provides for great liberality in the allowance of amendments in order to prevent the substantial injustice of a cause from being defeated by formal slips or slight variances. In view of these principles of the law, we think it was an abuse of discretion not to permit the appellants an opportunity for discovery nor to permit them to refile their motion to strike the confessed judgment within a reasonable time after the completion of discovery.

(2)

In its motion to extend the time to file answers to the defendants’ (appellants’) initial interrogatories, the appellee stated:

That the answers to said interrogatories are not necessary to the conduct of the hearing scheduled for May 4,1978 and will not be necessary at all if the Court, after hearing, grants the Plaintiff’s Motion Ne Recipiatur and denies the Defendants’ Motion to Strike Judgment by Confession.

We do not agree with that contention. The issue is whether the parties are entitled to discovery under Rules 400-425 pending disposition of the defendant’s motion to vacate a confessed judgment under Rule 645. The bank’s contention is that there may be no discovery unless or until the confessed judgments are opened, vacated or modified. Rule 400 a, however, provides that Rules 400-425 shall apply to all actions and Rule 5 a provides, in pertinent part, that an “ ‘action’ shall include all the steps by which a party seeks to enforce any right in a court of law or equity.”

The particular issue has been sparsely considered by the courts. In a series of cases in the Superior Court of Baltimore City, Judge David Ross, the assigned discovery judge of the Supreme Bench of Baltimore, had before him the question whether discovery is available during the pendency of a motion under Rule 645 to vacate, modify or set aside a confessed judgment. Judge Ross, in reaching the conclusion that discovery was available, said:

While it is true that a confessed judgment has, from the date of its entry, all the incidents of a final judgment [citation omitted], recognition of its unique character is demonstrated by the existence of Maryland Rule 645. Of particular significance is the fact that Maryland Rule 645 d clearly contemplates an evidentiary hearing on the motion to vacate. It is difficult to conceive of any reason why discovery would not serve the same useful purpose in connection with such a hearing that it does with respect to the trial of any issue. A motion to vacate a confessed judgment is a step by which a defendant seeks to enforce a right and it would thus seem to fall within the Section 5 a definition of an action. Maryland Discovery Opinions, at 363.

The need for such discovery proceedings could not be more clearly demonstrated than the factual posture of this case. It is admitted that the appellee released the collateral security for the payment of this loan. No information was offered as to the terms of that release. Neither the trial judge nor the appellants had any knowledge of the terms of release. Whether any credit was due on account of the principal indebtedness by reason of the arrangement between the owner of the collateral security and the bank was left within the sole knowledge of the bank. The debtors were placed in the position of filing a motion to vacate the confessed judgment on the basis of a meritorious defense but were prevented from determining the facts, if any, which substantiated that defense by reason of the appellee’s refusal to disclose facts entirely within its own knowledge. The appellants had no prior opportunity for discovery until the confessed judgment was filed. We conclude that discovery is available during the pendency of a motion under Rule 645 to vacate, modify or set aside a confessed judgment with the scope of discovery limited to the issues raised in the motion to vacate.

We shall reverse the judgment entered in this case and shall remand to permit the appellee to answer the interrogatories pending, and appellant shall have such reasonable time as the trial judge shall determine to file an amended motion to vacate after the interrogatories have been answered.

Judgment reversed, case remanded for further proceedings; costs to be paid by appellee.

      . Citizens National Bank v. National Management and Investors; Citizens National Bank v. First United Investment Corp.; Citizens National Bank v. First United Investment Corp. Daily Record, May 22,1974, Maryland Discovery Opinions 363.


author: Moylan, J.,

text:
    ROLAND NEVILLE GODWIN v. STATE OF MARYLAND
    [No. 200 (On Remand),
    September Term, 1977.]

      Decided January 16, 1979.

    The cause was submitted on remand to  Gilbert, C. J., and Moylan and Lowe, JJ.
   Moylan, J.,

delivered the opinion of the Court.

The appellant, Roland Neville Godwin, was convicted by a Prince George’s County jury, presided over by Judge Jacob S. Levin, of three counts of first-degree murder, four counts of kidnapping and four counts involving the unlawful use of a handgun in the commission of a crime of violence. He appealed initially to this Court, raising seven separate contentions. We rejected all of those contentions and affirmed the convictions in Godwin v. State, 38 Md. App. 716. The Court of Appeals granted certiorari to consider one of those contentions — that three of the kidnapping convictions should have merged into the three convictions for first degree murder. On November 21,1978, the Court of Appeals passed an order vacating our judgment in this case and remanding it to us “for the entry of a new judgment consistent with the opinion of [that] Court in State v. Eugene Shaw Frye and Willie Lee Jones, Jr. v. State, Nos. 133 and 173, September Term, 1977, decided November 16, 1978.” It will reduce the clutter to clear away the convictions which are not affected by the order of the Court of Appeals.

The appellant, along with two codefendants, was convicted of gangland-style kidnappings and executions directed initially at four victims and fully consummated with respect to three of those victims. With respect to each of the three victims who was ultimately executed — Alvin Jones, Anthony Cunningham and David Dock — convictions were obtained for murder in the first degree, kidnapping and the use of a handgun in the commission of a crime of violence. With respect to the intended victim who was ultimately permitted to go free by his captors — Ronald Swayne — convictions were obtained simply for kidnapping and the use of a handgun in the commission of a crime of violence. Those two convictions, wherein the victim was Ronald Swayne, are unaffected by anything in the Court of Appeals’ order and as to them, the judgments below remain affirmed.

As in the Jones case, supra, a remand is in order with the State having the option of 1) retrying the appellant on the three murders and related kidnappings in an effort to obtain consecutive sentences or 2) allowing the kidnapping convictions to be vacated and deemed merged into the respective murder convictions. If the State should decide that it is content with “a bird in hand,” our direction to the court below is to vacate the convictions and sentences on those three kidnapping charges. The convictions and the sentences for both the murders and the handgun uses will remain unaffected by the remand.

A word is in order about leaving the convictions and sentences for the handgun offenses undisturbed. In the first place, the legal sufficiency of the evidence to support the handgun convictions is; not disputed. The Court of Appeals’ order does not disturb one whit the findings upon the merits that three murders (crimes of violence) were committed with handguns and that three kidnappings (also crimes of violence) were also committed with handguns. The undisturbed convictions for murder alone serve as ample predicates for the handgun convictions — regardless of the fate of the kidnapping convictions. In the second place, the crime of using a handgun in the commission of a crime of violence contains an element — the use of a handgun — which is not a required element of either murder or kidnapping. They, in turn, each require obvious elements not required for the handgun convictions. The handgun convictions are not, therefore, lesser included offenses for purposes of mandatory merger. Couplin v. State, 37 Md. App. 567; Cates v. State, 21 Md. App. 363; Bremer v. State, 18 Md. App. 291; cf. Dillon v. State, 277 Md. 571. They do not merge directly into the murder convictions. Neither do they, merge into the kidnapping convictions so as to link their destinies inexorably together.

We now turn to the possibilities that may occur in the event the State exercises its retrial option to push for consecutive sentences. Even in this event, the vacating of convictions and the ensuing retrial would be with respect to the three murder charges and the three related kidnapping charges. For all of the reasons discussed above, there is no necessity for a retrial as to the three handgun charges and these convictions may stand undisturbed, whatever course the State elects to take with regard to the murders and the kidnappings. It is clear, under Ford v. State, supra, that the crime of using a handgun in the commission of a crime of violence is not a “lesser included offense” within nor the “same offense” as the related crime of violence and a conviction for the one may stand unaffected by the fate of the other. There is no multiple punishment problem and no former jeopardy problem (autrefois convict variety) because the handgun offense and the “crime of violence” in which the handgun is used are not “the same offense” within the contemplation of double jeopardy law. Newton v. State, 280 Md. 260, 373 A. 2d 262 (1977); Blockburger v. United States, 284 U. S. 299, 52 S. Ct. 180, 76 L. Ed. 306 (1932).

With respect to the three murder charges and the three related kidnapping charges, we remand them to the Circuit Court for Prince George’s County for further proceedings. The State may, if it is so inclined, elect to retry the appellant for both the murders and the underlying kidnappings. In such event, the jury should be instructed in accordance with State v. Frye and Jones v. State, 283 Md. 709, 393 A. 2d 1372 (1978) and as fully explained in Frye v. State, 37 Md. App. 476, 378 A. 2d 155 (1977). If, after a reasonable time, the State fails to elect a new trial, the judgments on the three underlying kidnapping counts should be vacated and the judgments of guilty on the three murder counts should be enrolled.

Judgments as to Counts 22 and 25 (charging kidnapping and the use of a handgun with respect to the victim Swayne) affirmed; judgments as to Counts 7, U and 21 (the handgun counts with respect to the other three victims) affirmed; judgments as to Counts 3, 10 and 17 (charging the three murders) and Counts 11 and 18 (charging the. three related kidnappings) vacated and remanded for further proceedings; costs to be paid by Prince George's County.

      . A conviction for the use of a handgun in the commission of a crime of violence may stand upon its own legs, of course, even in the face of an acquittal on the merits for the actual '“crime of violence” itself. Ford v. State, 274 Md. 546.

      . Even if the handgun charges were tied exclusively to the kidnappings as their predicates and even if Ford v. State, infra, did not permit the handgun charges to stand independent of the fate of the kidnapping charges, sound reasoning still would not dictate vacating them in a case such as this. In a merger situation such as that mandated by Newton v. State, infra, the convictions for the underlying felonies are vacated not because, upon the merits, those felonies did not occur but for the very opposite reason that those felonies did occur and are, as lesser included offenses, subsumed into the greater offenses so as to avoid double punishment. Even if consistency between verdicts were demanded, therefore, the factual predicate for the handgun offense is not wiped out where the crime of violence is merged into a greater offense, in contrast to the very different situation where the crime of violence has been found, upon the merits, not to have occurred. We look to the substance of what happens and not the mere form. Every vacating of a kidnapping conviction is not the same as every other in terms of its significance ana impact. To prove a kidnapping upon the merits but to have it merged into a greater inclusive offense so as to avoid multiple punishment is a far cry from failing to prove the kidnapping upon the merits. The only reason the underlying felony merges into the felony-murder is because it has no element not contained in that particular form of murder. The use of the handgun in the commission of the merged felony, by way of contrast, does have an independent element and does not so merge.

      . In view of the stark realities of parole consideration, wherein ostensibly lengthy sentences rapidly pass a point of diminishing returns, the strategic wisdom of opting for some nominal victory in terms of sentence at the risk of Pyrrhic victory in terms of mind-boggling confusion and opportunity for error as illustrated by this case and Jones and Frye would appear highly questionable. The decision, however, is in the unfettered discretion of the State’s Attorney’s Office.


author: Davidson, J.,

text:
    JOHN FRANCIS CONN v. STATE OF MARYLAND
    [No. 15,
    September Term, 1978.]

      Decided January 16, 1979.

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

      Bradford C. Peabody, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis Bill Burch, Attorney General, Sandra A. O’Connor, State’s Attorney for Baltimore County, and Gary P. Jordan, Assistant State’s Attorney for Baltimore County, on the brief, for appellee.
   Davidson, J.,

delivered the opinion of the Court.

On 10 July 1977, John Francis Conn, the appellant, was charged with murder. He entered pleas of not guilty and not guilty by reason of insanity. On 16 December 1977, in the Circuit Court for Baltimore County, a jury found that the appellant was sane at the time of the commission of the crime and convicted him of murder in the first degree. We shall reverse.

The evidence shows that on 10 July 1977, at approximately 7:30 p.m., Iris Appel was found murdered. Her father saw the appellant running from the scene of the crime. At 8:00 p.m. that same night, the appellant was arrested by two Baltimore County police officers.

At trial one of the arresting officers, a lay witness, expressed an opinion, based upon his observations of the appellant shortly after the commission of the crime, that the appellant was not mentally ill. The appellant objected and moved to strike. The record shows that the following exchange took place:

“Q. [State’s Attorney] Can you describe to the ladies and gentlemen of the Jury what the Defendant Mr. Conn’s demeanor was, how he was acting? What was his appearance?
“A. [Arresting Officer] He was obviously crying. He was somewhat grief-stricken. He seemed to be fit of mind. There wasn’t any situation where he seemed to be suffering from any kind of illness. It seemed to be primarily grief.
“MR. GEDE: [Defendant’s Attorney] I object.
“A. He was aware of what was going on when we talked to him.
“MR. GEDE: I object and ask that it be stricken, that he didn’t seem to have any illness.
“THE COURT: That he observed. Overruled. Continue.”

The only other testimony relating to the appellant’s sanity was offered by psychiatrists, qualified as expert witnesses. Two psychiatrists on the staff of Clifton T. Perkins Hospital testified for the State. One said that at the time he examined him, the appellant did not have a “paranoid or explosive personality,” had no “symptoms of chronic undifferentiated schizophrenia,” was not “psychotic,” had no “organic brain damage,” and had “good contact with reality.” The other, in response to questions, stated that the appellant was always coherent, did not exhibit either definite psychotic symptoms or reactions, or bizarre or delusional thinking, and did not suffer from any focal disturbance, epilepsy or brain pathology. He offered an opinion upon the ultimate question of the appellant’s sanity at the time of the commission of the crime. His opinion was based upon his examination and available background material, including police reports which indicated that shortly after the commission of the crime the appellant showed signs of remorse. In addition he relied upon witnesses’ statements and psychiatric, psychological and other non-psychiatric medical reports. He concluded that the appellant “never suffered from a mental disorder.” He explained that this was the unanimous opinion of the thrée psychiatrists on the staff of Clifton T. Perkins Hospital who had participated in the evaluation of the appellant.

One psychiatrist testified for the defense. He stated that at the time of the crime the appellant “was a chronic undifferentiated schizophrenic, and he was psychotic.” He concluded by offering his opinion that at the time of the crime the appellant was suffering from a mental disorder or illness and was insane under Maryland law.

The narrow question here presented is whether, in a criminal case in which insanity is asserted as a defense, it is error to admit a lay witness’ opinion on the ultimate question of an accused’s mental illness or sanity. Although this Court has previously indicated, in dicta, that the opinion of a lay witness on the ultimate question of an accused’s sanity is inadmissible, it has never so held.

In Maryland the principles governing the admissibility of opinions offered by lay witnesses on the question of a person’s mental condition were first considered in civil cases. In Townshend v. Townshend a case involving the validity of a will, the Court of Appeals considered the question whether a person other than an attesting witness could offer an opinion that a testator had the mental capacity to execute a will. There the Court said:

“It is stated by the elementary writers upon this subject, that the attesting witnesses are considered in the law as placed round the testator, to protect him against fraud in the execution of his will, and to judge of his capacity; that the testator is intrusted to their care; and it is their duty to inform themselves of his capacity, before they attest his will; and it is on this ground, that these witnesses are permitted to testify as to the opinions they formed of the testator’s capacity, at the time of executing his will. And it is equally true, as a general proposition, that the mere naked opinions of other persons, not occupying the position of medical men, are inadmissible in reference to the mental capacity of a testator, whose will may be controverted.
“But the testimony proposed to be submitted by the caveatees, to the jury as illustrative of the mental condition of the testator, was not the mere naked, isolated, unsupported opinion of the witness. The impression made upon the mind of the witness by the conduct, manner, bearing, conversation, appearance, and acts of the testator in various business transactions, for a long series of years, is not mere opinion, it is knowledge, and strictly analogous to the cases of personal identity, and hand-writing, which are constantly established in the law Courts, by the opinion and judgment of persons who have enjoyed the opportunity of observing the person, or hand-writing sought to [be] identified, or proved. “We think, therefore, that the caveatees were entitled to the opinion of this witness, with respect to the capacity of the testator, in connection with the facts upon which it was founded, and that the County Court were wrong in rejecting this testimony.”

Thus the Court established that, under appropriate circumstances, the opinion of a lay witness on the question of a person’s sanity is admissible in a civil case.

The question whether the same rule was applicable in a criminal case in which sanity was in issue was considered in Watts v. State. There an accused murderer asserted that the trial court erred when it refused to admit into evidence lay opinions regarding his sanity. The Court agreed, stating:

“Ever since the case of Townshend v. Townshend 7 Gill, 10, it has been settled law in this State, in cases where mental sanity is in issue, that a non-expert witness may give his opinion in evidence, in connection with his personal observation of the facts upon which it is founded, and as derived from them. It must appear that the witness had adequate opportunity for forming a rational conclusion, since the mere opinions of witnesses are entitled to little or no regard unless they are founded on facts which warrant them in the opinion of the jury. 'If the reasons are frivolous or inconclusive, the opinions of the witness are worth nothing.’ The weight to be given to such an opinion is for the jury, subject of course to the qualification that where the facts stated are such as would not, in the judgment of the Court, enable any rational mind to draw any conclusion therefrom, the opinion proposed to be given may be properly excluded. In Conn. Ins. Co. v. Lathrop, 111 U. S. 620, Mr. Justice Harlan said, ‘Where a cause fairly depends upon the effect or weight of testimony, it is one for the consideration and determination of the jury. * * * It should never be withdrawn from them unless the testimony be of such a conclusive -character as to compel the Court, in the exercise of a sound legal discretion, to set aside a verdict returned in opposition to it * * *. The natural and ordinary operations of the human intellect, and the appearance and conduct of insane persons as contrasted with the appearance and conduct of persons of sound mind, are more or less understood and recognized by every one of ordinary intelligence who comes in contact with his species. The extent to [which] such opinions should control or influence the Court or jury, must depend upon the intelligence of the witness as manifested by his examination, and upon his opportunities to ascertain all the circumstances that should properly affect any conclusion reached.’ ”

Thus the Court established that, under appropriate circumstances, the opinion of a lay witness on the question of a person’s sanity is admissible in criminal as well as in civil cases.

Although lay opinions regarding sanity continue to be admissible in civil cases, recent legislative enactments now make it inappropriate to apply the same rule in a criminal case in which an accused has asserted an insanity defense. The first of these enactments involved a change in the test of insanity in a criminal action. When Watts was decided the test of insanity, earlier adopted by the Court of Appeals, was whether the offender, at the time of the commission of the offense, could distinguish between right and wrong and understand the nature and consequences of his act. That standard remained the test until the Legislature altered it by the enactment of Annotated Code of Maryland, article 59, section 9 (a) (1968) effective 1 June 1967, which established a test based upon the Model Penal Code section 4.01(1) (1962). Article 59, section 9 (a) provided:

“A defendant is not responsible for criminal conduct and shall be found insane at the time of the commission of the alleged crime if, at the time of such conduct as a result of mental disease or defect, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. As used in this section, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.” (emphasis added.)

The basic purpose of this enactment was to establish a test of insanity based upon advances made in the science of psychiatry. The legislation broadened the previous “right-wrong” test by making the insanity defense available to an offender who, although he could distinguish between right and wrong and could understand the nature and consequences of his acts at the time of the commission of the crime, could not, as a result of a mental disease or defect, conform his actions to the requirements of the law. Concomitantly, it broadened the scope of admissible psychiatric testimony.

Shortly after article 59, section 9 (a) became effective, this Court for the first time considered the question of who was competent to offer an opinion on the ultimate issue of an accused’s sanity. In Saul v. State, the Court decided that the question whether an accused was suffering from a mental disease or defect was a medical question, dependent upon a medical diagnosis. It concluded that an opinion on the ultimate question of sanity, whether an accused was suffering from a mental disease or defect and lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, is admissible if offered by a psychiatrist but is not admissible if offered by a psychologist. In reaching this result, the Court relied upon the following resolution adopted in 1954 by the American Medical Association, the Council of the American Psychiatric Association and the Executive Council of the American Psychoanalytical Association:

“ ‘The medical profession fully endorses the appropriate utilization of the skills of psychologists, social workers, and other professional personnel in contributing roles in settings directly supervised by physicians. It further recognizes that these professions are entirely independent and autonomous when medical questions are not involved; but when members of these professions contribute to the diagnosis and treatment of illness, their professional contributions must be coordinated under medical responsibility.’ ”

The Court said:

“The test of the responsibility for criminal conduct under the provisions of Md. Code, Art. 59, § 9 (a) is predicated upon ‘mental disease or defect.’ We think that the existence of a ‘mental disease or defect’ is first and foremost a medical problem. It is not to disparage the members of the medical profession who are trained and experienced in the diagnosis and treatment of mental illness to point out that even they frequently differ widely concerning its symptoms, nature, intensity and causal influence with respect to a crime committed or even if it exists as to [a] certain person. It is not yet a matter susceptible of precise determination despite the great advances in medical science. Without question tests by and observations of qualified psychologists are invaluable to the psychiatrist in reaching his opinion as to whether as a result of mental disease or defect an accused is insane and the testimony of such psychologists as to the results of the tests made by him are properly admissible as a means of enlightening the trier of fact, to be considered by it as one of the means by which the psychiatrist reached his opinion as to the sanity or insanity of the accused. But an opinion as to the ultimate fact, whether or not the accused is insane under the test prescribed by § 9 (a), in fairness both to the accused and the State, should be reached by a medical diagnosis. Thus the opinion must be made by a medically trained psychiatrist in order to be admissible in evidence.”

In subsequent cases, this Court emphasized the fact that the question of the existence of a mental disease or defect was a medical question by reiterating that an opinion on the question of an accused’s sanity is admissible only when offered by a physician and based upon “reasonable medical certainty.”

In 1970 and again in 1972, the Legislature, assumably aware of this Court’s decisions indicating that only a physician could testify on the question of sanity, amended article 59. The amendments substituted the words “mental disorder” for the words “mental disease or defect,” and added the following definitions:

“(f) ‘'Mental disorder’ means mental illness or any other form of behavioral or emotional illness resulting from any psychiatric or neurological disorder. The term shall not include mental retardation.
“(g) ‘Mental illness’ means any mental disorder which so substantially impairs the mental or emotional functioning of an individual as to make it necessary or advisable for the welfare of the person so suffering or for the safety of the persons or property of others that the mentally ill person receive care and treatment. The term shall replace the words ‘insane,’ ‘insanity,’ ‘lunacy,’ ‘mentally sick,’ ‘mental disease,’ ‘unsound mind’ and similar words as they appear in the statutes of the State of Maryland.”

The phrase “mental disease or defect,” the definition of which had provoked disagreement among psychiatrists, was replaced by the term “mental disorder,” a standard which psychiatrists could more readily define and uniformly apply, thereby improving the quality of psychiatric testimony. The term “mental disorder” was defined as a mental, behavioral or emotional illness and the words “insane and insanity” were equated with the words mental illness, thereby underscoring the medical nature of a determination of sanity. Finally, the term “mental illness” was defined as a disorder which so impairs an individual that it is necessary for him to receive care and treatment in order to protect himself or others, thereby establishing a standard analogous to that used to determine whether a person suffering from a mental disorder may be involuntarily committed. This analogy leads to the conclusion that because involuntary commitment is dependent upon a determination by two physicians that a person has a mental disorder and needs care or treatment for his or others’ safety, a finding on the ultimate question of sanity in a criminal action is also dependent upon a similar determination by a physician. Thus, these amendments establish that the Legislature implicitly agreed with this Court’s conclusion that the question of sanity is a medical question and that an opinion on the ultimate question of an accused’s “mental illness” or its equivalent “sanity” is admissible only if offered by a physician.

Finally, in 1978, the Legislature squarely confronted the question whether only physicians should be permitted to offer opinions on the ultimate issue of an accused’s mental illness or sanity. It enacted Annotated Code of Maryland, Courts & Judicial Proceedings article 9, section 120 (Cum. Supp. 1978) effective 1 July 1978, which provides that:

“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.”

Thus, the Legislature opted to broaden the class of persons who could offer an opinion on mental illness or sanity by including, in addition to physicians, another group of specially trained professionals. It did not include lay persons within the class competent to offer such opinions. These circumstances establish that the Legislature intended that only physicians and psychologists and not laymen be permitted to offer opinions on the issue of an accused’s mental illness or sanity.

In light of this legislative history, the rule in Watts is no longer viable. We now hold that in a criminal case in which an accused asserts an insanity defense, it is error to admit the opinion of a lay witness on the ultimate question of an accused’s mental illness or sanity, even if the lay witness may have had adequate opportunity to observe the accused. Accordingly, in this case the trial court erred in admitting the arresting officer’s opinion that the accused was not mentally ill.

Here the record shows that the insanity plea was the appellant’s principal defense. It further shows that the highly technical and complex testimony of the psychiatrists for the State and the psychiatrist for the defense was in conflict. In closing argument the State itself characterized the arresting officer, who testified on the issue of the accused’s sanity, as an “important lay witness” whose testimony should be relied upon to determine that the accused was sane at the time of the commission of the offense. Of all the witnesses who testified on the question of the accused’s sanity, the arresting officer was the only one who had the opportunity to observe the accused shortly after the crime was committed. His opinion that the appellant “seemed to be fit of mind” and did not seem “to be suffering from any kind of [mental] illness” was stated in clear and simple terms, which could be readily understood by the jury. His opinion may have contributed to the jury’s determination to credit the testimony of the State psychiatrists and, therefore, to the guilty verdict. Upon our independent review of the record, we are not persuaded beyond a reasonable doubt that under the present circumstances the error was harmless. Accordingly, we shall reverse.

Judgment reversed.

Case remanded for a new trial. Costs to be paid by Baltimore County.

      . Gregory v. State, 40 Md. App. 297, 328-29, 391 A. 2d 437, 456 (1978); Bremer v. State, 18 Md. App. 291, 317-18 n. 9, 307 A. 2d 503, 520 n. 9, cert. denied, 269 Md. 755 (1973), 415 U. S. 930 (1974).

      . See, e.g., Williams v. Lee, 47 Md. 321, 326 (1877); Waters v. Waters, 35 Md. 531, 541 (1872); Weems v. Weems, 19 Md. 334, 345 (1863); Stewart v. Redditt, 3 Md. 67, 78 (1852); Townshend v. Townshend, 7 Gill 10, 27-28 (1848).

      . 7 Gill 10 (1848).

      . 7 Gill at 27-30.

      . 99 Md. 30, 57 A. 542 (1904).

      . 99 Md. at 36-37, 57 A. at 545.

      . See Baldwin v. State, 226 Md. 409, 413, 174 A. 2d 57, 59-60 (1961).

      . E.g., Sachs v. Little, 245 Md. 343, 351-57, 266 A. 2d 283, 287-93 (1967); Ingalls v. Trustees, 244 Md. 243, 256-59. 223 A. 2d 778, 784-86 (1966); Masius v. Wilson, 213 Md. 259, 269, 131 A. 2d 484, 489 (1957); Cronin v. Kimble, 156 Md. 489, 499-500, 144 A. 698, 702-03 (1929). See, e.g., Dietz v. Moore, 277 Md. 1, 7-8, 351 A. 2d 428, 433 (1976).

      . Spencer v. State, 69 Md. 28, 37, 13 A. 809, 812-13 (1888).

      . See, e.g., Robinson v. State, 249 Md. 200, 225 n. 5, 238 A. 2d 875, 889 n. 5, cert. denied, 393 U. S. 928 (1968); League v. State, 1 Md. App. 681, 685, 232 A. 2d 828, 831, cert. denied, 247 Md. 740 (1967).

      . See Model Penal Code § 4.01, Appendix B at 173-74 (Tent. Draft No. 4, 1955). The influence of evolving scientific psychiatric knowledge on the development of a test for insanity is detailed in Durham v. United States, 214 F. 2d 862, 869-75 (1954).

      . Explanation of Proposed Amendments to Art. 59, A. A. Marshall, Jr., appearing before Judiciary Committee of the General Assembly (Nov. 21, 1966) (Dept, of Legislative Reference: Legislative Council item number 234, 1966 interim).

      . A similar question was raised but not decided in State v. Tull, 240 Md. 49, 53-58, 212 A. 2d 729, 732-33 (1965).

      . 6 Md. App. 540, 252 A. 2d 282 (1969), aff’d on other grounds, 258 Md. 100, 265 A. 2d 178 (1970).

      . 6 Md. App. at 549, 252 A. 2d at 286.

      . 6 Md. App. at 549, 252 A. 2d at 286 (emphasis added).

      . 6 Md. App. at 549-550, 252 A. 2d at 286-87 (footnote omitted).

      . Millard v. State, 8 Md. App. 419, 426, 261 A. 2d 227, 231, cert. denied, 257 Md. 735 (1970); Greenleaf v. State, 7 Md. App. 575, 578, 256 A. 2d 552, 553 (1969), cert. denied, 256 Md. 745 (1970).

      . Under the rules of statutory construction the Legislature is assumed to have knowledge of and to act in accordance with the decisions of the appellate courts. Supervisor of Assessments of Anne Arundel County v. Southgate Harbor, 279 Md. 586, 591-92, 369 A. 2d 1053, 1056 (1977); Herbert v. Gray, 38 Md. 529, 532 (1873); Bush v. Director of Patuxent Inst., 22 Md. App. 353, 359, 324 A. 2d 162, 166, cert. denied sub nom, Mazan v. Director, 272 Md. 745 (1974).

      . Md. Ann. Code art. 59, § 25 (a) (1972).

      . Md. Ann. Code art. 59, § 3 (f), (g) (Cum. Supp. 1978).

      . Sherrill v. State, 14 Md. App. 146, 156, 286 A. 2d 528, 533 (1972).

      . Md. Ann. Code art. 59, § 12 (a) (1) (Cum. Supp. 1978) provides in pertinent part:
      “Any Veterans’ Administration hospital or facility licensed by or under the jurisdiction of the Department may admit for the purpose of care or treatment, or both, any person who:
      (i) Has a mental disorder; and
      (ii) For the protection of himself or others, need[s] inpatient medical care or treatment; and
      (iii) Is unable or unwilling to be voluntarily admitted to such facility.”

      . Md. Ann. Code art. 59, § 12 (c) (Cum. Supp. 1978) provides in pertinent part:
      “Each such application for [involuntary] admission to a facility shall:
      (5) Be accompanied by the certificates of two physicians that the prospective patient has a mental disorder, and for his protection or others, needs inpatient care or treatment.”

      . In 1976, in State v. Williams, 278 Md. 180, 361 A. 2d 122 (1976), the Court of Appeals considered a closely related but distinguishable issue. It recognized that the language of Md. Ann. Code art. 31B (1976), Defective Delinquents, indicated that the Legislature “viewed the question of defective delinquency as primarily a medical problem.” It held that an opinion regarding the ultimate issue of defective delinquency is admissible if offered by a psychiatrist but is not admissible if offered by a psychologist. 278 Md. at 187, 361 A. 2d at 126.

      . Under the rules of statutory construction, the express inclusion of one qualification shows a deliberate rejection of any other. American Security & Trust Co. v. New Amsterdam Casualty Co., 246 Md. 36, 41, 227 A. 2d 214, 217 (1967); Johns v. Hodges, 62 Md. 525, 538 (1884).

      . Beahm v. Shortall, 279 Md. 321, 331-32, 368 A. 2d 1005, 1011 (1977): Dorsey v. State, 276 Md. 638, 657-59, 350 A. 2d 665, 677-78 (1976); Ross v. State, 276 Md. 664, 673-74, 350 A. 2d 680, 686-87 (1976); Brown v. State, 39 Md. App. 497, 514, 388 A. 2d 130, 140 (1978); Facyson v. State, 35 Md. App. 202, 206-08, 370 A. 2d 158, 161-62 (1977).