author: Moylan, J.,

text:
    MILTON THOMAS GREEN a/k/a Angelo Michael Daniels v. STATE OF MARYLAND
    [No. 699,
    September Term, 1976.]

      Decided April 11, 1977.

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

      William J. Chen, Jr., Assigned Public Defender, for appellant.

      Arrie W. Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Andrew L. Bonner, State’s Attorney for Montgomery County, and Thomas L. Heeney, Assistant State’s Attorney for Montgomery County, on the brief, for appellee.
   Moylan, J.,

delivered the opinion of the Court.

Involved in this appeal are several subtle wrinkles of the Sixth and Fourteenth Amendment law on identification, the resolution of which is implicit in United States v. Wade, 388 U. S. 218, 87 S. Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U. S. 293, 87 S. Ct. 1967, 18 L.Ed.2d 1199 (1967); and Smith and Samuels v. State, 6 Md. App. 59, 250 A. 2d 285 (1969), but which have not before been flatly ironed out. The appellant, Milton Thomas Green, was convicted by a Montgomery County jury of armed robbery and attendant offenses. Although he raises six assignments of error, the most significant one is that dealing with identification.

Fundamental to an understanding of the identification problem here (or anywhere) is an appreciation that the suppression hearing contemplated by Wade-Gilbert-Stovall is but a specific instance of a more generic constitutional device — a “taint” hearing under the “fruit of the poisonous tree” doctrine. We are here asked to consider, in an identification setting, 1) what is a primary illegality, and 21 what constitutes an exploitation of a primary illegality.

The key dispute in the case was over the criminal agency of the appellant. Pivotal on that question was the in-court identification of the appellant made by the robbery victim. The victim was Commander Rene Alfredo Molina, a member of the Ecuadorian Navy assigned to Washington. Commander Molina’s native language is Spanish and it was necessary at trial to employ the services of a Spanish-English interpreter. His, however, was only one of the language problems. At approximately 11:15 p.m. on November 16, 1975, Commander Molina had dropped his wife and three other persons off at their apartment in the Wheaton area of Montgomery County following their return from the Dulles International Airport. Commander Molina drove to the parking area of his apartment complex to park the car for the evening. He noticed that he was being followed by a Datsun sportscar, occupied by two persons. He was ultimately held up at gunpoint by the passenger of that sportscar and had his own car keys taken from him by the driver of the sportscar. Commander Molina was unable to identify the appellant in at least one pretrial photographic viewing. The critical impasse in this case occurred as, during Commander Molina’s testimony, the question of in-court identification drew near.

An In-Court Identification Wets Made

Before focusing in upon that impasse, we leap forward to state that, in our judgment, an ultimate in-court identification was made. The State seeks adroitly to dodge the constitutional issue by urging upon us the factual proposition that no in-court identification was ever made and that the question of procedural inadequacies is, therefore, moot. The premises for our conclusion are these. Commander Molina’s narrative definitely establishes that both of his assailants were Negro males. The record further establishes unequivocally that at this critical juncture in the trial, the appellant was the only Negro male in the courtroom. When, therefore, the robbery victim responded in the affirmative that he did see one of his assailants (the one who had been the driver of the Datsun sportscar ) in the courtroom, this was an effective identification of the appellant notwithstanding the fact that all systems ground to an abrupt halt before the appellant was literally pointed to or identified by name. That the intellectual thought process involved two steps rather than one does not diminish the end product that the appellant was effectively singled out. The process of elimination is within a jury’s intellectual competence. We hold that an in-court identification was made and we proceed from that point.

The Point Was Preserved

Although, as will be more fully discussed hereinafter, sound and unsound arguments mingled confusingly into each other and although legal discussions ran off on unrelated tangents, the appellant clearly sought an exclusionary “taint” hearing before any in-court identification should be made and eaually clearly objected to its denial. The problem in this case is not with the state of the law but rather with the fact that two or three cognate issues blurred together and that the common attention of appellant’s counsel, the assistant prosecutor and the trial judge never focused on the same question. The exchanges among all three parties were not sharply responsive and there appears to have been a communications gap as to precisely what the material issue was. The preliminary skirmishing began at the following point:

“MR, MILLER: It would seem to me we have reached a point where Mr. Heeney is going to get into both out-of-court identification and in-court identification. I think we ought to exclude the jury at this time.
THE COURT: I understood that he could not make an out-of-court identification from the pictures. Is that correct?
MR. HEENEY: That is correct.
MR. MILLER: But he now wants to make an in-court. identification. I think the lack of the out-of-court identification may very well taint any in-court identification.
THE COURT: We are going to have to take that when we get to it, Mr. Miller. If he wants to bring out as part of the State’s case that he could not make this identification from the photo array, I think he is privileged to do that. I don’t think that —
MR. MILLER: I understand. But at that point in time when any out-of-court identification proceeds to in-court —
THE COURT: He hasn’t asked that question yet. It may be he is not going to ask it.
MR. HEENEY: I am. My position on this, and I think you are right, it is premature, but my position is that once I ask for the in-court identification, it is Mr. Miller’s burden to show somehow or another the failure to make an identification out of court tainted the in-court; the absence of an identification tainted it. I don’t think that is what the law is. The law is something has to be wrong, where you have to do something wrong to screw up the identification, to taint it, to make it illegal. That is the issue.
THE COURT: I think, Mr. Miller, that when we get to that point we will have to take that one at a time. I think he can testify that he was shown these photo arrays and that he could not make an identification. That is not objectionable.
MR. MILLER: I think at the point he wants to ask whether or not he can identify him, I would like a hearing out of the presence of the jury on whether or not that is a tainted identification at this point.
THE COURT: All right. We may have to do that. At this point we are not at that point.”

To that point, the trial judge was literally correct. No preliminary examination is required before the testimonial assertion that the victim could not make an extrajudicial photographic identification. The fact of non-identification is of borderline relevance, at best, and is hardly harmful to a defendant’s cause. Following the bench conference, the trial testimony took off briefly in another and unrelated direction. Shortly thereafter, it returned to the subject of the pretrial photographic viewing:

“Q. Fair enough. Let’s go to the police station. At what time did you see the photographs at the police station?
MS. SAGASTI [the interpreter]: You mean hour?
BY MR. HEENEY:
Q. Yes.
A. I saw from 1 o’clock at night to almost 3:00, 2:80.
Q. So two or three hours after the robbery?
A. An hour and a half.
Q. Okay. How many pictures were shown to you?
A. Like 200, maybe 300.
Q. For what length of time?
A. Like two and a half hours.
Q. How tired were you?
A. Yes, I was tired.
Q. Who showed the pictures to you?
A. They gave me some boxes to look through.
Q. Who”
A. A police in civilian clothes.
Q. They gave you boxes?
A. Boxes of loose photos.
Q. Did you see the person who was the passenger in those pictures?
A. No, I was not able to identify him.
Q. Did you see the driver in those pictures?
A. No.
Q. Now, did they ever give you a line-up of live bodies to pick out?
A. No. You mean living people standing there?
Q. Yes.
A. No.”

Thus far in the testimony, nothing constitutionally untoward had happened, although the State, absent the proper preliminary examination on the admissibility of either an in-court or an out-of-court identification, was running perilously close to the out-of-bounds marker. In a careless instant, the State stepped off sides:

“Q. Do you see in Court now the person who was the driver of the Datsun?
MR. MILLER: Objection.
THE COURT: Tell him he can answer that yes or no.
THE WITNESS: Yes.
MR. MILLER: Approach the bench?”

Under the previously discussed demographic circumstances in the courtroom at the moment the victim indicated that he did see “the driver of the Datsun” in the courtroom, an in-court identification had effectively been made. This first time around, however, everyone treated the identification as if it had not yet occurred. Following a prolonged bench conference, several testimonial diversions and a recess, the court was ready to conduct a suppression hearing out of the presence of the jury (albeit, as we have pointed out, an in-court identification had already effectively been made). Before that hearing could be held, however, the following exchange occurred:

“THE COURT: You want to have this hearing?
MR. HEENEY: We can truncate the proceedings at this point. Mr. Miller is going to make a motion, as I understand it, to suppress the in-court identification by this witness. I will not ask, in light of that, this witness to make an in-court identification.
THE COURT: I think that satisfies the problem then, Mr. Miller.”

Somewhere in here, there was a communications gap between the parties because, notwithstanding this statement of intention, the following took place immediately upon the resumption of the witness stand by Commander Molina:

“BY MR. HEENEY:
Q. Commander, with reference to what you told the jury that happened back on this diagram and back in November of 1975, do you see anybody in court that had anything to do with this holdup?
MR. MILLER: Objection.
THE WITNESS: Yes.
MR. MILLER: May we approach the bench? (Whereupon a discussion was held at the bench, outside the hearing of the jury, as follows:)
MR. MILLER: I am going to move for a mistrial at this time. Mr. Heeney specifically said that he wasn’t going to ask that question and denied me a suppression hearing, which he said I was entitled to, and now —
MR. HEENEY: I am conceding on the motion.
THE COURT: I don’t understand what we have done here now, Mr. Heeney. You have lost me. I understood that you were not going to ask him the very question that you have now asked him in only a different way!
MR. HEENEY: That is not my understanding. If I understand what has happened, I am not going to pursue this problem now that the question has been proposed. I think Mr. Miller’s objection is well taken. As I understand it, Your Honor is simply going to rule on it.
THE COURT: Well, I -
MR. MILLER: I don’t see how you can get the ink out of the milk now. Your Honor has to declare a mistrial.
THE COURT: I might not understand English very well. As I understand this, you have now asked him the very question that —
MR. HEENEY: The same question as before.
THE COURT: — that we were going to have the out-of-court hearing on.
MR. HEENEY: I am conceding to that, that the motion should be granted, the objection should be sustained.
THE COURT: He already answered the question yes. He just answered the question yes. If you look around the courtroom, there is only one person out there in this courtroom that could possibly be involved in this damn thing. That is the defendant.
MR. HEENEY: It is the same question asked earlier.
THE COURT: It is phrased a little differently. What he has now answered is that he can see somebody, has seen somebody in this courtroom. The way it was asked this time and the affirmative answer can only point to the Defendant.
MR. HEENEY: He said earlier that he can make an identification of the person that was involved in this thing, and then there was an objection. As I understand that, Your Honor was going to sustain that objection because I wasn’t going to pursue it.
THE COURT: I am not going to grant the mistrial, but I think you have asked him two different questions here. Let’s go ahead.
MR. MILLER: What can I possibly do now? He has got the question in. He has denied me my suppression hearing. I don’t see what else Your Honor can do.
MR. HEENEY: I am agreeing to the suppression hearing. I agree it should be suppressed.
MR. MILLER: He should not have asked the question. The answer is in there.
MR. HEENEY: The judge has to rule on what the question is. I was setting it up so you can sustain it.
THE COURT: Ladies and gentlemen, you go back in the jury room. We have another problem about this matter.”

In fairness to the Assistant State’s Attorney, we do not infer that he intentionally misled the court. As in so many courtroom wrangles, the spark was not a legal problem but a language problem. People talk at cross-purposes because although they use the same words, they have different meanings in mind. In the mind of the hearing judge, of the defense attorney and, incidentally, of this Court, an in-court identification was made. In the mind of the Assistant State’s Attorney, an identification was not yet made and would not have been made unless and until he had asked the follow-up question, “Will you point to that person?” and the pointing had in fact occurred. Nobody defined his terms. The appellant and the State were at odds not over the law of identification but over the meaning of “identification.” As is so frequently true in courtroom disagreements, what is needed is not more sophisticated law but a little elementary semantics. Whatever the cause, however, the appellant was denied a right to which he was entitled and which he had timely sought.

The appellant was erroneously denied a suppression hearing on the constitutionality .of the pretrial identification procedures which arguably might have tainted the cohrtroom identification. Because of the blurring of issues as revealed by trial transcript and by argument before us, we would clarify precisely how we arrive at this conclusion.

1. The Circumstances of an In-Court Identification Are Not the Subject for a “Taint” Hearing

The primary thrust of the appellant’s argument was not and is not well taken. Indeed, the emphasis upon this unsound argument helped to divert trial attention from the appellant’s secondary thrust, which was valid and which controls our decision. Under the unsound theory, the appellant argued vigorously that 1) his presence as the only Negro in the courtroom and 2) his seating at the trial table created impermissibly suggestive circumstances for the making of the in-court identification and that he should have been permitted a suppression hearing in order to establish this.

At such a hearing, he proffered to use the fact of pretrial non-identification, by way of contrast, to buttress his position that the in-court identification could not have been made but for its own inherent suggestive circumstances. He was not alleging impermissibly suggestive pretrial procedures as the cause of the later in-court identification. He was alleging, rather, impermissibly suggestive trial procedures as its own self-contained “cause and effect.” The appellant was maintaining pot that the courtroom identification was the “fruit of the poisonous tree” but rather that it was the “poisonous tree” itself. Under Wade-Gilbert-Stovall, a suppression hearing is not available for such a purpose. An in-court identification, as any other evidence, civilly or criminally, may be tested and probed by the traditional device for such testing and probing — the use of cross-examination. (“Where would you assume a defendant would sit during the course of his trial?” “Before pointing so dramatically to my client, you had earlier testified that your assailant was a black male; I now ask you to look around this courtroom and tell us precisely how many black males are present in the room. No further questions, Your Honor!” “Before so easily picking out the defendant as he is seated here at the trial table, isn’t it a fact that you totally failed to pick out his photograph when it was intermingled with the photographs of other persons?” “How can you remember so well ten months later a face that you saw in the dark for no more than 30 seconds?”, etc.) What happens in the courtroom is open forjudge and jury to see and does not call for the Sixth Amendment’s special ventilation of musty and secret station house proceedings. Thus, for the primary reason for which the appellant sought the exclusionary hearing, his grounds were not well taken and he was not entitled to such “taint” hearing.

2. The Circumstances of a Pretrial Identification Are the Subject for a “Taint” Hearing

In a secondary and alternative line of reasoning, however, the appellant did articulate the proposition that there might arguably have been impermissibly suggestive procedures employed at various pretrial attempts at identification and that they may have infected the courtroom identification:

“[I]t is my understanding that where there have been pre-trial identification procedures, such as showing him a photographic array, that it would be incumbent upon the State to show that any such pre-trial photographic arrays did not taint any in-court identification.
I would ask that the jury be excluded and we go into the question as to whether or not any in-court identification by this witness is tainted.”

It is clear that the appellant lodged a timely objection to the in-court identification. It is clear that he explicitly requested a preliminary examination, out of the presence of the jury, on the issue of admissibility. It is clear that he was entitled to such a hearing. The mandate of Wade-Gilbert-Stovall was articulately summarized and incorporated into the law of this State by Judge Orth in Smith and Samuels v. State, 6 Md. App. 59, 67-68, 250 A. 2d 285:

“THE PROCEDURE UPON CHALLENGE OF EVIDENCE OF IDENTIFICATION
Evidence of the identity bf the defendant may be challenged by a motion to exclude or suppress such evidence made before or during trial or by an objection to the evidence when it is offered. Md. Rules 725, 522.... When the determination of the admissibility of the challenged evidence is made during a trial before a jury, evidence on the issue shall be received out of the presence of the jury. At the hearing on the issue raised by the challenge the burden is on the defendant to show, prima facie, that the pre-trial confrontation or viewing of photographs was illegal, and if he so shows, the burden shifts to the State to show by clear and convincing evidence that it was legal. If the court finds that the State has met its burden and that the pre-trial confrontation or viewing was legal, an in-court identification by the witness present at the pre-trial confrontation or viewing is admissible as substantive evidence. And if such witness made a pre-trial identification, his testimony to that effect is so admissible.... If the court finds that the pre-trial confrontation or viewing was illegal, any and all evidence of the pre-trial identification is per se inadmissible. The burden is then on the State to establish that the in-court identification offered had a source independent of the illegal pre-trial confrontation or viewing.”

It is clear that the suppression hearing is designed to deal with either or both of two distinct admissibility issues — 1) the admissibility of the pretrial identification (photographic, lineup or otherwise) and 2) the admissibility of a subsequent in-court identification which may or may not be the proximate result of a tainted extrajudicial identification. The first of the two admissibility issues is not before us in this case because no pretrial identification was made and hence no pretrial identification was offered in evidence. The exclusionary hearing was nonetheless still mandated to determine what, if any, effect the pretrial circumstances may have had upon the in-court identification.

For an in-court identification to be suppressed, two things must be shown:

(1) That the extrajudicial identification procedure was the proximate cause of the ensuing in-court identification. (Even if there has been a tainted, to wit, impermissibly suggestive, extrajudicial identification procedure, the in-court identification may still be admissible if it is shown to be not the product of the earlier, tainted identification procedure. Once the primary taint is shown, of course, the later in-court identification is presumptively its product and the burden is upon the State to show an independent source therefor.);
AND
(2) That the extrajudicial identification procedure was tainted. (Even if the in-court identification is the proximate result of an earlier extrajudicial identification procedure, it is not inadmissible simply because it is a mere effect unless the cause for such effect was, indeed, tainted. It may, under such circumstances, be redundant and may not, therefore, have very much independent weight but that does not affect admissibility per se.)

The appellant should have had the opportunity to explore this possibility of taint. Thus, for this secondary reason for which the appellant sought the exclusionary hearing, his grounds were well taken and he was erroneously denied a “taint” hearing.

3. The Primary Illegality May Be an Impermissibly Suggestive Proceeding Producing No Pretrial _Identification_

Distracted by' their proper response to the appellant’s leading argument, the court (and the assistant prosecutor) gave too short a shrift to his secondary point. They were content to dismiss it with the surface observation that there was no pretrial identification:

“THE COURT: It obviously, I would think, cannot be tainted on a lineup theory, because there has been no lineup. I don’t see how it can be tainted on any photo array basis because he hasn’t made any identification based on the photo array.”

That misses the mark. It is perfectly conceivable that one or more pretrial identification proceedings could be so impermissibly suggestive as to be the cause of a later in-court identification, whether they in fact caused a pretrial identification or not. When we look to the question of tainted cause, we are looking to all of the circumstances of the pretrial lineup or showup. The mere fact that no pretrial identification was there made is not, ipso facto, dispositive of the causative influence which the proceeding itself may have had upon a later in-court identification. Once a witness has been exposed to possibly contagious and contaminating causation, a long-term infection could surface at the trial stage even if no ill effects were obvious in the immediate, extrajudicial wake of the exposure. When we examine the pretrial identification procedures, it is the process and not the immediate product that counts. We look to exposure and not incubation period.

The distinction here made may seem subtle to the point of being metaphysical but it is a necessary distinction for a case just such as this — where there is a pretrial identification procedure but where there is no pretrial identification. Careless linguistic shorthand generally refers to the possibility that “the pretrial identification caused the courtroom identification.” That, of course, is not the way the causative process works. The cause is the possibly impermissive suggestiveness of the pretrial identification procedure itself. It is the very act of dangling the bait and not the witness’s subsequent act of snapping at the bait. The ensuing acts of pretrial identification and courtroom identification are both effects, short term and long term, flowing from the same cause. They are not in a cause and effect relationship to each other. Theoretically at least, the same cause might produce 1) both a short-term effect and a long-term effect; 2) a short-term effect but no long-term effect; 3) a long-term effect but no short-term effect; or 4) neither a short-term effect nor a long-term effect. Although it is evidence upon the question, the absence of a short-term effect does not, ipso facto, negate the cause.

Had there been no pretrial exposure of any sort, an exclusionary hearing would not have been mandated. In this case, however, there clearly had been significant exposure and significant attempts at identification. (It was established that the victim had viewed between 200 and 300 photographs for a period of between an hour and one-half and two hours. Whether or not other efforts were made at identification was not developed.) The appellant was entitled to explore those circumstances. He was erroneously denied that opportunity.

4. The After-the-Fact Revelation of “No Prejudice”

The prescribed procedural sequence is not, like Beauty, its own excuse for being. It exists to serve a purpose. Notwithstanding the procedural error in this case, it remains to be seen whether the undergirding and animating purpose of the rule was, in the net result, ill-served. The procedural sequence was unquestionably out of kilter. We must still inquire whether this appellant in the circumstances of this cáse actually suffered any prejudice, or plausible possibility of prejudice, thereby.

What we are here considering is not the question of “harmless error.” That constitutional phenomenon comes into play when there has been both an error and some ascertainable prejudice of at least a minimal variety as a result of that error. It then measures the impact of that prejudice in relation to the other evidence of guilt and requires the constitutional fact finder to ask whether it can be said, beyond a reasonable doubt, that 'the wrongfully admitted inculpatory evidence did not contribute to the jury’s verdict. Chapman v. California, 386 U. S. 18, 87 S. Ct. 824, 17 L.Ed.2d 705 (1967); Harrington v. California, 395 U. S. 250, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969). We are not here making such an assessment. In the “harmless error” setting, the error does produce some substantive prejudice. We are here dealing with a very different type of threshold question — that of whether a mere procedural error actually produced any substantive error (or prejudice) at all. If the evidence that came before the jury was in fact proper, did the mere mix-up in timing make any difference at all or did the potential error, by a stroke of luck, become moot?

The State argues persuasively the nunc pro tunc theory that the pretrial circumstances were thoroughly explored and were proved to be constitutionally innocuous after the fact of in-court identification, even if they had not been fully explored before the fact. We agree that the circumstances under which Commander Molina was shown several hundred photographs over a period of an hour and a half shortly after the crime occurred were thoroughly explored and did not remotely hint of anything impermissibly suggestive. The pretrial identification procedure was revealed to be totally untainted. Had the proper sequence been followed, the ultimate in-court identification was indisputably proper. .While we strongly disapprove of a procedural risk being unnecessarily taken, the risk in this case, by a stroke of good fortune, did not produce any dire consequences. Even in a harmless error situation, /the jury receives some evidence which it should not have received; in this case, the jury received only evidence which it should have received. The worst that can be said is that it received it twenty minutes early.

What happened, in effect, was that a cat was let out of the bag prematurely. In such a circumstance, if an after-the-fact examination of its pedigree reveals it to be tainted, it cannot effectively be put back in the bag again and a mistrial may, indeed, be called for. If, on the other hand, the after-the-fact examination of the pedigree reveals it to be utterly untainted, no harm has been done. The cat is out and the cat deserves to be out. All that has happened is that we have suffered a needless but short-lived little scare before reassurance is ultimately forthcoming.

Our only pause in this regard is a first reading of McGilton v. State, 12 Md. App. 174, 278 A. 2d 76. Its language, at 12 Md. App. 183-184, is broad:

“We found that a defendant is entitled as a matter of absolute right under Smith and Samuels to an evidentiary hearing out of the presence of the jury and a determination by the trial judge of the question raised by objection to evidence of identification — that is whether under the circumstances the extrajudicial viewing of the photograph constituted an illegal pretrial confrontation tainting the prospective in-court identifications because violative of the Fourteenth Amendment. ...
In Perkins we observed that we could not sanctify the violation of the defendant’s rights by subscribing to the State’s arguments that it did not really matter because defendant produced no evidence that the photographic viewing was illegal and hence did not carry his burden of showing, prima facie, the illegality of the pretrial confrontation; or that even if the photographic viewing procedure was illegal, nevertheless the State adduced evidence at the trial showing that the in-court identifications were based upon an independent source; or that the extrajudicial photographic identification was in fact legal. . . . [I]n any event, in the circumstances of the conduct of the trial, it is not whether the identifications may have had an independent source. Had the requisite procedures been followed, the appellant would have had the option of placing before the jury or not that there had been a pretrial viewing of photographs and the circumstances surrounding it. As the trial here was conducted, appellant was denied any choice as to whether or not evidence going to the question of the independent source of the in-court identification was to be placed before the jury. On the contrary, the State had the full benefit of the inquiry on the matter being in the presence of the jury.” (Emphasis supplied)

Notwithstanding the absolute tone of this language, a cardinal rule of case construction at the common law is that no statement, for purposes of ascertaining a holding at least, is ever to be wrenched loose of its generating factual context. The facts of McGilton are not as broad as its language. On its facts, McGilton was unquestionably correctly decided and we adhere to it steadfastly. In McGilton, the “cat was let out of the bag” prematurely. An after-the-fact examination of “taint” did reveal that one at least of the questioned identifications was untainted — not because of the absence of primary taint but rather because the courtroom identification had an independent source. The defendant was, nevertheless, placed at the distinct substantive as well as tactical disadvantage of either submissively accepting the untested courtroom identification or of disclosing to the jury, in the course of the after-the-fact “taint” examination, the damaging evidence that a pretrial identification (tainted and, therefore, properly excludable) had actually been made. Under the circumstances, the procedural misadventure did not become moot but worked affirmative mischief. The defendant was on the horns of a dilemma. In the course of proving the cleanliness of one identification (the in-court one) there was uncovered before the eyes of the jury another unclean identification (the pretrial photographic viewing). The defendant had to choose between one possibly bad identification and one definitely bad identification. He was in a “no win” situation. Under those circumstances, McGilton properly reversed the conviction. If its language was overbroad, it is because those are not always the circumstances when a preferred procedural sequence gets out of kilter. If an after-the-fact examination reveals that the premature courtroom identification was untainted and if the very process of the after-the-fact examination does not harm the defendant in any way, it would be exalting form over substance automatically to order a reversal. It would work the absurd result that an untainted pretrial identification, which the State could have introduced in chief but did not, would trigger a reversal if it came in later as part of the testing of the pedigree of an in-court identification. That cannot be. We do not order reversals or require mistrials when a jury ends up receiving nothing but competent, relevant, material and constitutionally unoffending evidence. To the extent to which McGilton suggests otherwise, McGilton is definitely not controlling.

The overly broad language oí McGilton was, in turn, taken in part from earlier and also overbroad language in Perkins v. State, 11 Md. App. 527, 275 A. 2d 517. Again, we agree that Perkins was correctly decided on its facts and we adhere to it firmly. Its facts, however, were even more confining than those in McGilton. In Perkins, the courtroom identification came in without a before-the-fact taint hearing, which had been requested by the defendant. Then the defendant himself repeatedly sought an after-the-fact taint examination and was cut off every time he tried to explore the matter before the jury. The error in Perkins was not one involving procedural sequence at all but rather the utter foreclosure of any taint hearing, before or after the fact.

The rule of Wade-Gilbert-Stovall and of Smith and Samuels v. State is a sound one, one that produces proper results in proper sequence, and one that is always to be followed. When, however, as sometimes happens in the din and confusion of courtroom battle, the rule misfires, is reversal automatically and rigidly called for? We think not. What is called for is a more searching analysis.

A rule does not exist for its own sake alone; it exists to perform an underlying function. What is required of appellate review is not blind and doctrinaire (and, therefore, easy) adherence to the letter of a rule but a functional analysis in terms of the rule’s purpose. We look to what happened, not just to how it happened. We look to substance, not form. Notwithstanding the “broken play,” was the function which the rule was invented to perform ultimately ill-served or well-served? The “broken play,” which could be disastrous, sometimes works out all right.

A functional analysis simply requires us to think a problem through to its logical conclusion. In this regard, the decisional process, in undifferentiated totality, is sometimes hard to come to grips with. To locate and to pinpoint a problem area, it is helpful to break the thought process down into its component parts. We sometimes need to construct a model. If a courtroom identification is prematurely made before the opportunity for a timely requested “taint” hearing (if the cat is prematurely let out of the bag), iá a mistrial called* for? The answer is, “Maybe, yes, and maybe, no.” There are two possibilities:

I. If the after-the-fact examination reveals that there was a primary illegality and that the courtroom identification was the tainted product of that primary illegality, a mistrial is quite possibly in order.
II. If, on the other hand, the after-the-fact examination reveals either that there was no primary illegality or that the courtroom identification had an independent source, has everything been cured? Again, the answer is, “Maybe, yes, and maybe, no.” Again, there are two possibilities:
A. If in the course of the after-the-fact examination, nothing is brought out which is harmful to a defendant’s cause, all is well.
B. If, on the other hand, in the course of the after-the-fact examination, facts are brought out (as in McGilton) which could harm a defendant’s cause, is a mistrial called for? Again, the answer is, “Maybe, yes, and maybe, no.” Again, there are two possibilities:
1. If the harmful facts (as in McGilton) are heard by the jury (which jury would not have heard such harmful facts had the proper procedural sequence been followed), a mistrial may well be in order.
2. If, on the other hand, the trial judge (in order to explore the necessity or non-necessity for a mistrial and precisely to avoid McGilton-type problems in the course of that exploration) has held the after-the-fact “taint” hearing out Of the presence of the jury, all is yet well.

Since the present case is an instance of IIA above, all is well.

Compelled Self-IncHmination

One of the appellant’s remaining contentions is intellectually interesting. Its launching pad is the Fifth Amendment’s command that, “No person . .. shall be compelled in any criminal case to be a witness against himself.” The problem is that the nexus between the constitutional starting point and the present claim “is narrowed to a filament.” The appellant lays down a broad enfilade of objections to the closing argument and rebuttal of the assistant prosecutor, including charges that the prosecutor actually gave testimony in the course of jury argument, attacked his own evidence, improperly attacked defense counsel and commented upon the appellant’s failure to testify. Although in reviewing the argument generally, we see nothing intemperate or beyond the pale of fair comment under Wilhelm v. State, 272 Md. 404, 326 A. 2d 707, we note that the only subcontention properly reserved for appellate review by timely objection is that dealing with the ostensible comment upon the failure of the appellant to testify. The State was arguing, on the basis of Commander Molina’s testimony, that the appellant fully participated in the robbery. The appellant was arguing, on the basis of his statement given to the police, that he never anticipated that his companion would perpetrate a robbery and was surprised when it eventuated. In this context, we deem the assistant prosecutor’s comments to have been both relevant and necessary as he urged upon the jury the credibility of the inculpatory version of the facts and the corresponding incredibility of the defense version of the facts:

“Now, what this whole case comes down to is do you believe his statement, given to a police officer, that he wasn’t really involved; or do you believe the witnesses from the witness stand as to what happened? That is really where it is at. Let’s discuss this.
First of all, the victim, when he told you what happened, as to what the passenger did and what the driver did, was under oath. That victim was cross examined by Mr. Miller. That victim had nothing to gain. That is a key point in this case — he had nothing to gain by lying, by saying somebody else did it. I mean, he was here to tell the truth. He was a good witness. He was sure of what he said. He had that positiveness in him. That is the credibility you want; that is the credibility you can rely on.
What about the Defendant? Well, first of all, his statement is a hearsay statement. The evidence is that it is not under oath.”

Even more to the point, we do not deem this argument to have been comment upon the appellant’s failure to take the witness stand. Appellate claims of the nature of the one here being made sometimes become so strained as they prospect for every arguable and remote allusion or inference that can be extracted from a jury speech that we must periodically go back to the constitutional point of departure in order to regain our sense of reality. What is proscribed by the Fifth Amendment is compelling one to give evidence against himself. That protection was deemed absorbed into the Due Process Clause of the Fourteenth Amendment and made binding upon the states by Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L.Ed.2d 653 (1964). That protection was extended radically when it was held to prohibit not only the compulsion to give testimony but even comment by the state upon the failure of a defendant to take the stand voluntarily. That extension came in Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L.Ed.2d 106 (1965). To get the feel again for the type of thing prohibited by Griffin v. California, it pays to look to the explicit and unequivocal quality of the argument there condemned:

“ ‘The defendant certainly knows whether Essie Mae had this beat up appearance at the time he left her apartment and went down the alley with her.
‘What kind of a man is it that would want to have sex with a woman that beat up if she was beat up at the time he left?
‘He would know that. He would know how she got down the alley. He would know how the blood got on the bottom of the concrete steps. He would know how long he was with her in that box. He would know how her wig got off. He would know whether he beat her or mistreated her. He would know whether he walked away from that place cool as a cucumber when he saw Mr. Villasenor because he was conscious of his own guilt and wanted to get away from that damaged or injured woman.
‘These things he has not seen fit to take the stand and deny or explain.
‘And in the whole world, if anybody would know, this defendant would know.
‘Essie Mae is dead, she can’t tell you her side of the story. The defendant won’t.’ ” 380 U. S. at 610-611.

The direct and devastating attack upon the failure of a defendant to take the stand, condemned by Griffin v. California, bears no resemblance whatsoever to a proper attack upon an exculpatory unsworn statement, from which attack a juror might speculatively infer that the appellant did not testify in his own defense. A jury hardly needs a remote allusion to a non-happening (the failure of the appellant to testify) of which it is fully aware. At work here is an interesting constitutional phenomenon. We begin with the sound principle that no one should ever be compelled to give evidence against himself. Extrapolating from that, we extend the application of the principle so as to prohibit the prosecutor from arguing to the jury the proposition that they can and should infer a guilty state of mind from testimonial silence. That extension, in the hands of advocates, becomes a new point of departure and they extrapolate from it the arguable further extension that no one should ever mention to the jury, even in the most neutral of terms, the fact (a rather obvious fact even without mention) that the defendant has not testified in his own behalf. We are now asked to take that as yet a new point of departure and to make yet a further extension. The appellant urges upon us the proposition that even an otherwise legitimate argument on the respective weights of the State’s evidence and the defense evidence will engage the gears of the Fifth Amendment and fall under the constitutional prohibition if a jury might conceivably deduce from that argument the fact that a defendant did not take the stand.

We decline to do so. At the point where even the ripples of ripples have ripples, we have lost all contact with our constitutional origins. This process of extension was roundly criticized by Judge Henry J. Friendly, who described it as:

“... the domino method of constitutional adjudication ... wherein every explanatory statement in a previous opinion is made the basis for extension to a wholly different situation.”

Forcefully to contrast, in the course of legitimate argument, the sworn testimony of Commander Molina, who had no axe to grind, with the unsworn and self-serving denials made by the appellant to the police does not amount, in our judgment, to compelling an accused to be a witness against himself. The prosecutor’s argument was constitutionally unoffending.

The Right to an Impartial Jury

One intriguing contention raised by the appellant makes, in our judgment, a mountain out of a molehill. At an earlier occasion in the trial, the individual jurors had had note pads and were requesting the right to take notes individually. At one point it was determined that only the foreman would take notes and the pads were all passed in. During the final stages of the case, preparatory to retiring for their deliberations, the jurors got their note pads again. It was ultimately revealed to the court that one of the note pads picked up by one of the jurors contained upon it the single, written word “Guilty.” Upon this basis, the appellant moved for a mistrial on the ground that someone had improperly communicated with the jury and may thereby have influenced the jury’s verdict. The trial judge denied the motion for a mistrial. We cannot say that he abused his discretion in this regard.

For many reasons, not the least of which is the unending litigation which is generated, it is unfortunate when such accidents occur. When, however, there is no purposeful fault discernible on the part of anyone, to suggest that a single word written on a scratch pad is capable of having a hypnotic and talismanic influence over a juror, engendering some Pavlovian, conditioned reflex capable of overcoming days of listening to testimony and hours of listening to argument and jury instruction is simply preposterous. If the American jury is, indeed, that suggestible, there is serious question as to the continuing viability of the whole institution of trial by jury. Again, we need to maintain contact with constitutional origins. Involved is the command of the Sixth Amendment that, “In all criminal prosecutions, the accused shall enjoy the right to a ... trial, by an impartial jury.”

The constitutionally requisite impartiality of the jury simply did not disintegrate because someone saw the word “Guilty” written on a pad of paper. The word did not communicate some forbidden piece of information to the jury. Neither did it possess the occult power to bewitch them or to cast a spell, any more than an unruly shout from the back of the courtroom or a bit of graffiti on a jury room wall could cast a fatal spell. A juror deemed capable of resisting and evaluating an hour or more of persuasive rhetoric at the hands of a skilled trial advocate, who drums into them his apocalyptic message of “Guilty! Guilty! Guilty!” does not suddenly “cave in” at the sight of a single word on a scratch pad. A mishap of this sort was unfortunate but fundamentally trivkl. The decision not to abort a two-day trial investment for so light and transient a cause was not improper.

The Other Contentions

The other contentions need not detain us long. The appellant condemns the failure of the trial judge to instruct the jury on the law of accessoryship after the fact. Since the evidence pointed indisputably to the guilt of the driver of the Datsun sportscar (whoever the identification process reveals that person to have been) as a principal and not an accessory after the fact, the refusal of the judge to charge the jury on a point of law not supported by the evidence was proper.

The appellant also attacks the jury instruction on the subject of using a handgun in the commission of a felony. He now objects to that part of the instruction dealing with the gun being in operable condition. The only objection he made at the trial, however, was to the instruction in an entirely different regard and only that, therefore, will be considered by us to have been preserved for appellate review. The nature of the objection lodged at the trial level dealt with that part of the charge which informed the jury that a defendant could be guilty if he was a full participant in the armed robbery even though he did not manually handle the gun himself. In looking at the charge as a whole in this regard, we think it adequately stated the applicable law and was unexceptionable.

The appellant’s final contention is that the evidence was not legally sufficient to let the case go to the jury on the charges of using a handgun in the commission of a felony and transporting a handgun in a motor vehicle. His argument in this regard is predicated upon his position that he was, at most, an accessory after the fact and not a principal. Since the testimony of Commander Molina himself was sufficient to establish the guilt of the appellant as a principal, the predicate for the argument falls.

Judgments affirmed; costs to be paid by appellant.

      . The contrast between non-identification then and identification now would only be relevant, of course, if it were shown that the appellant’s picture had been in the photographic array.

      . Although a pretrial procedure may consist of both a question and an answer, the cause is only the impermissibly suggestive question. The distinct phenomenon of the answer (or non-answer) is simply the first generation effect (or non-effect) flowing (or not flowing) from that cause.

      . If “harmless error” were, indeed, the issue before us, we would conclude that any arguable error in this case was harmless beyond a reasonable doubt. The whole issue of identification procedures went to the question of whether the appellant was at the crime scene and not to the question of what he did there. The appellant did not dispute his presence at the crime scene. The abandoned car in which Commander Molina’s assailants left the crime scene was discovered by the police within minutes after the crime. A pair of abandoned tennis shoes in that car established the scent which a trained police dog followed, through the woods, to the very bush wherein the appellant was hiding. His codefendant, who had left a fingerprint in the car, was found nearby. A loaded .32 caliber revolver, similar to that used in the robbery, was also found in a nearby bush. The appellant himself led the police to a spot on the parking lot near where the appellant had thrown away Commander Molina s car keys. The keys were there recovered. The appellant gave a statement to the police, to the admission of which he made no objection whatsoever at_trial, in which he freely acknowledged his presence at the crime scene but in which he placed all the criminal blame upon his companion and codefendant. The questioned identification procedure, even if it had yielded a prejudicial result, went to an undisputed fact.

      . Even here, the assessment of the impact, in the context of a particular trial, is left to the wise discretion of the trial judge who is best positioned to assess such impact.

      . See note 4 above.

      . See note 4 above.

      . Justice Cardozo in Snyder v. Massachusetts, 291 U. S. 97, 122, 54 S. Ct. 330, 78 L. Ed. 674, 687 (1934).

      . Friendly, The Bill of Rights as a Code of Criminal Procedure, 53 Cal. L. Rev. 929,950 (1965). See also Miranda v. Arizona, 384 U. S. 436, 514, 86 S. Ct. 1602, 16 L.Ed.2d 694, 746-747 (1966). (dissenting opinion by Harlan, J.).


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    CATHERINE H. FEENEY v. DONALD EUGENE DOLAN et al.
    [No. 700,
    September Term, 1976.]

      Decided April 11, 1977.

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

      Patrick A. O’Doherty, with whom was Guy M. Albertini on the brief, for appellant.

      Robert E. Cadigan, with whom were Smith, Somerville & Case on the brief, for appellees.
   Moore, J.,

delivered the opinion of the Court.

Dissatisfied with a jury verdict of $20,000 after a trial in which liability was admitted for personal injuries sustained by appellant in a collision between her car and a dump truck, she filed a motion for a new trial. In addition to the general grounds customarily assigned, it was claimed in the motion that the trial court erred in certain rulings on the admissibility of evidence. This appeal has been taken, not from the overruling of the motion, but from the verdict and judgment entered. It is contended on appellant’s behalf that the trial court “committed prejudicial errors which denied the plaintiff-appellant a fair trial and an adequate recovery for the injuries sustained.” Specifically, it is claimed that under the facts of this case, the trial court erred:

1. In refusing to allow redirect examination of appellant’s neurological surgeon on the issue of causal relationship between the accident and the injury;
2. In permitting defense counsel to establish that the appellant and her fiance shared a motel room on a trip to Florida;
3. In permitting defense counsel to refer in opening statement to a Workmen’s Compensation commission award to the appellant of 30% permanent disability by reason of a prior injury to her low back and in permitting counsel to read to the jury the Order of the Commission.

We find the second and third assignments of error to be without merit; and while in our judgment the court erred in refusing to permit redirect examination of appellant’s neurological surgeon, such error has not been shown to have been prejudicial or to have affected the amount of the verdict. Accordingly, we affirm.

I

Appellee, Donald Dolan, an employee of appellee, Charles Leitch, was driving a dump truck, owned by Leitch, in a northerly direction on Reisterstown Road, Baltimore County, on November 7, 1973, when he negligently turned in front of the appellant, Catherine H. Feeney, operating a 1969 Pontiac and traveling in the opposite direction. The inevitable collision resulted in property damages of $1,157.47 to appellant’s car.

According to Mrs. Feeney’s testimony, upon impact she was thrown about in her vehicle, striking her head on the windshield, her knee on the steering column, and her side on the left door panel. She was driven from the scene to the law office where she was employed. A physician in the same building examined her. She complained at that time of head and neck pains and a sore knee. The doctor, according to Mrs. Feeney, prescribed bed rest and certain muscle relaxants. The next day she began to experience low back pain, in addition to her previous complaints. She was seen by Dr. Stuart H. Brager, a specialist in internal medicine, board certified, and an instructor at the University of Maryland School of Medicine, who undertook treatment as her primary care physician.

Dr. Brager’s examination of the patient the day after the accident revealed a spasm in the paraspinal muscles from approximately the second through the fifth lumbar vertebrae. The palpable spasm in her lower back, he said, resulted in restricted movement not only in forward bending but also in extension and lateral tilt. He recommended a conservative treatment of physical therapy sessions with a “wait and see” attitude, and prescribed painkillers and muscle relaxants. After some 8 to 12 physical therapy sessions, Mrs. Feeney’s office visits with Dr. Brager terminated in January, 1974. Dr. Brager concluded that Mrs. Feeney had “a reinjured lumbar sprain which was superimposed on this prior post-dissectomy status.”

As suggested by the internist’s diagnosis, Mrs. Feeney’s back troubles predated the 1973 accident. In May of 1968, while working at the Townhouse Motor Hotel as a clerk, she injured her back in a fall down a flight of stairs. This incident resulted in surgery by the late Dr. Clinton Harrison in July, 1968 at Mercy Hospital. Dr. Harrison’s operative notes were admitted into evidence. They disclosed that he had performed an excision of ruptüred discs at L4 and L5.

After the operation by Dr. Harrison, appellant was seen by Dr. Edward G. Reahl, Chief of Orthopedics at Mercy Hospital, who testified that he first examined her in March, 1969, at the request of her attorney, in order to evaluate her condition for a pending Workmen’s Compensation claim arising out of the stairway fall. Her complaints at that time consisted of pain beginning in her back radiating down her left leg all the way to her toes. His opinion was that as a result of the 1968 accident, “she sustained a herniated lumbar disc with persistent symptoms referable to her back and leg.” On cross-examination he testified, without objection, that her post-operative condition in 1969 amounted, in his opinion, to a 35% permanent partial disability of the back.

With respect to the 1973 accident, Dr. Reahl testified that he examined the appellant at the request of her internist, Dr. Brager, in December, 1975. In his opinion, she had a recurrence of the L4-L5 disc as well as a rupture of the L3-L4 disc as a result of the accident, and she had “a significant, residual permanent disability in her back.” He did not, however, recommend a spinal fusion because of her history of pulmonary embolism.

According to Mrs. Feeney, she was unable to work for one year after the 1968 accident. By early 1970, however, improved by physical therapy, she resumed her employment and normal physical activities and her back presented no significant problems, except for sporadic episodes of pain. On cross-examination, without objection, she admitted that she received a 30% permanent partial industrial disability from the Maryland Workmen’s Compensation Commission as a result of the fall.

As previously stated, she stopped receiving treatment from Dr. Brager in January, 1974. However, she recounted at trial that her back was “slowly getting worse” during the following months. The appellant and her fiance took a motor trip to Disneyworld, Florida in April, 1974. Her testimony reveals that the entire drive was uncomfortable and by the time she returned to Maryland, a week later, the deteriorating condition of her back forced her to see Dr. Brager on April 30. An examination disclosed, in Dr. Brager’s opinion, the signs of a ruptured disc. He also stated that, in retrospect, the symptoms, as exhibited by the patient in her December 1973 — January 1974 examinations, coupled with Mrs. Feeney’s medical history, indicated that the ruptured disc was present when he first saw the patient immediately after her accident.

Dr. Brager referred Mrs. Feeney to Dr. Jerome Reichmister, an orthopedic surgeon at Sinai Hospital, who placed her in traction and then arranged a consultation with Dr. Neal Aronson, Chief of Neurosurgery at the hospital. The patient remained in traction from May 3rd to May 20th. A myelogram was then performed. Dr. Aronson testified that he and Dr. Reichmister decided, “after careful consultation with the patient who said she couldn’t live with the symptoms that she had even after a full trial of conservative treatment,” to proceed with exploratory surgery. This decision was made “reluctantly” because of appellant’s history of pulmonary embolism after a hysterectomy. According to Dr. Aronson, he removed a ruptured disc located in the midline between the 3rd and 4th lumbar vertebrae as well as a “recurrent disc rupture” between the 4th and 5th vertebrae. Dr. Aronson stated that the latter rupture was the same disc previously removed in Dr. Harrison’s procedure in 1968.

On cross-examination, he testified that the results of his final examination of the patient in August, 1975 negatived a spinal fusion because of the success of the May surgery. Although the appellant still complained of occasional nagging backaches, Dr. Aronson found no objective abnormalities.

Appellant introduced into evidence medical bills aggregating in excess of $8,000. She also testified that as a result of the car accident her loss of wages was approximately $8,000.

In his charge to the jury, the trial judge instructed that “there is no legally sufficient evidence in this case that the plaintiff will require any future medical treatment or incur any future medical expenses other than drugs.”

II

On direct examination, appellant’s counsel elicited from Dr. Aronson, who performed the exploratory surgery of appellant’s spine in May 1974, the medical history which he obtained from Mrs. Feeney, his findings upon examination, and the results of the operation. Based on the information derived from these three sources, in response to the inquiry whether there existed a causal relationship between “the rupture that you found” (in May, 1974) and the automobile accident of November 1973, Dr. Aronson stated:

“Well, this is a preamble that I always give when I am asked to testify. I was called in as a consultant and a treating doctor in this case. I was not the initial treating doctor who saw this lady after her injury. I have to rely upon her believability and honesty as a person in determining causal relationship. If one takes for granted that the history she gave me was correct, then I would have to assume that the recurrence of her disc trouble was the result of the injury that she sustained. But everything depends upon the honesty of the patient, because obviously I did not treat her initially, had not been treating her prior to this accident and was not intimately aware day to day what her symptoms were and how she was doing, remembering that she had prior disc trouble five years before. So if a consultant or a secondary doctor that comes into the picture later on,■ the history as given by the patient to him is the only thing upon which I can base my conclusions. And, I therefore have to say as I have already stated, if the history given to me is correct, then a causal relationship exists in my opinion.” (Emphasis added.)

Apparently in the light of Dr. Aronson’s expressed dependence upon the veracity of the patient in relating medical history, counsel for the appellees on cross-examination exposed certain discrepancies in the medical history upon which the physician had relied. Thus, counsel’s cross-examination established:

1. Dr. Aronson was under the impression that appellant’s low back pain in 1968 radiated into the right leg as compared to her complaint of left leg radiating pain in 1974.
2. He believed that the appellant’s back complaints began about one month before he saw her, that is, in April 1974, some five months after the car accident.
3. He received no history that the appellant complained of her back or received any treatment for her back following the November 1973 accident.

On all three points Dr. Aronson’s history was in error. Both appellant’s testimony and the medical records in evidence revealed that the 1968 back injury was productive of pain radiating to the left leg. Furthermore, the appellant’s complaint of low back pain originated within forty-eight hours of the accident and she had received physical therapy treatments under the care of Dr. Brager.

Apparently disturbed by these revelations, Dr. Aronson altered his previous testimony when asked on cross-examination his opinion as to causal relationship. The following appears in the transcript:

“Q. So that there was a recurrence of the disc at L4-5 resulting from the previous surgery, is that right?
A. I cannot answer that question. I don’t know what it resulted from.
Q. So you have no opinion as to the cause of the recurrence of the ruptured disc at L4-L5 level, is that correct?
A. Can I only say this? Trauma is a very important cause of disc protrusion, and it is not unlikely that the injury that she sustained would have caused a recurrence, although if the symptoms had began immediately thereafter it would be easier to say that a definite causal relationship existed.
Q. Do you have an opinion that you can state with a reasonable degree of medical certainty or probability that the accident of November 7, 1973 caused a recurrence of the ruptured disc at the L4-L5 level?
A. In terms of reasonable medical probability, I would have to say I’m not sure.
Q. Do you have an opinion that you can state with a reasonable degree of medical certainty or probability as to whether or not the accident on November 7, 1973 caused the ruptured disc that you found at the L3-L4 level?
A. The answer is the same, I’m not sure. I think it’s highly possible but I can’t —
Q. Don’t you know, Doctor, you have been in Court enough times that we do not talk about possibilities.
A. That’s right.” (Emphasis added.)

With appellant’s expert witness thus impeached, her counsel on redirect attempted to rehabilitate him. The following colloquy appears in the transcript:

“Q. (By Mr. O’Doherty) Dr. Aronson, in your direct examination you expressed the opinion that the condition you found based on the history was related to the accident of November 7, 1973, correct?
A. Yes.
Q. In your cross-examination — and you correct me if I’m wrong — you said that you couldn’t say for sure?
A. Yes.
Q. Why did you say that?
(Mr. Cadigan) Objection.
(The Court) Overruled.
Q. (By The Court) Doctor, the question is why you said you were not sure in response to the questions of Mr. O’Doherty and —■
A. Because I looked over my notes more carefully. Your Honor, and I saw that there were certain things lacking there that I would really need in order to give a valid answer to that question. That information may exist, but I don’t have it.
Q. (By Mr. O’Doherty) What is that information?
(Mr. Cadigan) Objection.
(The Court) Sustained.
Q. (By Mr. O’Doherty) You said there were certain factors lacking within the purview of your knowledge. What are those factors?
(Mr. Cadigan) Objection.
(The Court) Sustained. Come up to the Bench.
At The Bench
(The Court) I have sustained the objection because you have not gotten to the point the way you’re going at it. You’re taking the approach that you should have taken in direct examination, not in redirect examination. So I am not going to permit you to go any further.
(Mr. O’Doherty) If you don’t mind, since I have to protect the record, by putting my two cents in. I proffer now that I am entitled to know those factors; and I point out to Your Honor that he did not say that was the reason because she gave a history of sciatic pain on the right and not on the left side. I proffer to you what he said before is that he would want to know the history of her condition from, the date of his first examination. (Emphasis added.)
(The Court) Regardless of what he said, I’m telling you what the impact was, that as soon as he learned that the pain in 1974 radiated down the left leg rather than the right, he said — the question was put to him immediately after that — and he said, I’m not sure. My ruling is based upon the fact that you have an opinion which is negated by his cross-examination. You can’t go ahead and try something on redirect that could have been done and should have been done on direct examination. If you want to make another proffer, go ahead.”

The scope of redirect examination rests within the sound discretion of the trial judge, and his discretion is wide. Bailey v. State, 16 Md. App. 83, 111, 294 A. 2d 123, 138-39 (1972); Fisher Body Division v. Alston, 252 Md. 51, 56, 249 A. 2d 130, 133 (1969). Even inquiry into new matters, not within the scope of cross-examination, may be permitted; and a party is generally entitled to have his witness explain or amplify the testimony which he has given on cross-examination and to explain any apparent inconsistencies. Mills v. State, 12 Md. App. 449, 461-62, 279 A. 2d 473, 482 (1971). As stated in Poe’s Pleading and Practice:

“Under direct examination resumed, the damaging effect of the cross-examination (in cases where it has proved damaging) is sought to be remedied as far as possible. Explanations may be asked and given of injurious matter elicited under cross-examination; and the consistency and accuracy of the witness may be shown. Indeed, the redirect examination of a witness, whom a severe cross-examination has shaken, frequently furnishes occasion for the exhibition of great tact and skill, and an unfortunate mistake or expression may be so adroitly explained away or corrected as to remove the unfavorable impressions created by the cross-examination.” 3 H. M. Sachs, Poe’s Pleading and Practice § 281 (6th ed. 1975). Accord, 4 S. Gard, Jones on Evidence § 26:30 (1972); 6 J. H. Wigmore, Evidence § 1896 (Chadbourn rev. 1976).

And in Wigmore, supra, the following rationale is presented:

“Honest misjudgments and inadvertent omissions often occur during the direct examination, and the repetition of particular parts may be desirable; while, on the other hand, the only danger to be guarded against is the unfair misleading of the opponent by the reservation of important testimony until the redirect examination, when he may have dismissed the needed witnesses in opposition.
“Accordingly, the general principle of the trial court’s discretion is here fully recognized as sanctioning, when necessary, the exceptional allowance of new testimony which could have been put in before, or of a repetition of matters already testified to.” (Footnotes omitted.) Id. at § 1896.

We believe the trial judge should have permitted redirect examination of Dr. Aronson concerning the reasons for his uncertainty on the issue of causation; and that the trial court took too narrow a view in its ruling that appellant’s counsel was improperly seeking to probe, on redirect, into matters that should have been the subject, of direct examination. In the presentation of expert testimony by a treating physician, a party may elicit the witness’ ultimate conclusion and “any details which the expert has personally observed can be elicited on direct or on cross-examination.” Langenfelder v. Thompson, 179 Md. 502, 508, 20 A. 2d 491, 494 (1941). This was essentially the situation in the case sub judice. Furthermore, the facts tending to support the expert’s conclusion had, without his knowledge, been testified to by other medical experts; and it was obviously this avenue of inquiry which appellant’s counsel sought to pursue on re-direct. This should have been allowed.

Even if, however, the trial court erred in its ruling, it is incumbent upon appellant to establish that the error was prejudicial. Beahm v. Shortall, 279 Md. 321 (1977). Unless the error was “both manifestly wrong and substantially injurious,” this Court will not reverse. Rotwein v. Bogart, 227 Md. 434, 487, 177 A. 2d 258, 260 (1962), quoting 2 J. P. Poe, Pleading and Practice § 287, at 249 (5th ed. 1925). “An error which does not affect the outcome of the case is ‘harmless error.’ ” I. W. Berman Properties v. Porter Bros., 276 Md. 1, 11-12, 344 A. 2d 65, 72 (1975); accord, Beahm, supra. See Dorsey v. State, 276 Md. 638, 350 A. 2d 665 (1976). It is also appellant’s burden, where the adequacy of the verdict is at issue, to show that the amount of the judgment is “indicative of injury to the appellant.” White v. Parks, supra, 154 Md. at 203.

Under the circumstances here presented, we conclude that error below was nonprejudicial. In appellant's case in chief, both Dr. Brager, a qualified internist, and Dr. Reahl, a qualified orthopedist, testified, as treating physicians, that in their opinion the injuries and complaints exhibited by Mrs. Feeney subsequent to the automobile accident of November, 1973 were proximately cause by said accident. Appellant was not, by virtue of the court’s ruling with respect to Dr. Aronson’s redirect testimony, deprived of any expert testimony on the issue of causation. The jury obviously credited the other expert testimony they heard on this issue because they returned a verdict in favor of the appellant for $20,000. In order properly to have reached such a verdict, the jury must have concluded that the element of proximate cause was established. As for the effect of any error on the amount of the verdict, none has been suggested and we perceive none.

Ill

Appellant also objects to the trial court’s ruling permitting the appellees to inquire, on cross-examination, whether Mrs. Feeney shared a motel room with her then fiance, now husband, while on a trip to Florida in April, 1974. The affirmative response, the appellant contends, raised “a fair inference that the parties had sexual relations in the room,” thereby prejudicing her in the eyes of the jury.

Matters concerning the nature and scope of cross-examination — like those with respect to redirect examination — are within the sound discretion of the trial court whose ruling will not be disturbed in the absence of a showing of prejudicial abuse of discretion. Fleming v. Prince George’s County, 277 Md. 655, 679, 358 A. 2d 892, 905 (1976); Nottingham Village v. Baltimore County, 266 Md. 339, 356, 292 A. 2d 680 (1972).

In determining the merits of appellant’s contention it is essential to consider (a) the relevancy or not of the challenged evidence and (b) whether, if it be relevant, any of the recognized exclusionary rules precluded its admissibility.

With respect to the first factor, the challenged evidence must be viewed not in isolation but in its circumstantial context. Here, the appellant’s direct testimony tended to establish that the accident of November 7, 1973 was the sole cause of her back problem and her surgery in May 1974, that prior to the accident she was free of symptoms of any low back involvement relating to her 1968 accident. Her own testimony, however, also established that the onset of renewed complaints of pain in the low back area was after the Florida trip and that upon her return from the trip she developed, for the first time since the 1973 accident, radiation of low back pain into her left leg. Accordingly, counsel for the appellees on cross-examination sought to develop that the onset of her disc symptomatology within the time frame of her Florida trip might have been related to (a) the automobile drive itself and (b) appellant’s activities while in transit and in Florida. In this respect she was interrogated about discomfort while driving, visiting Disneyworld, the extent to which she walked, used public transportation and went on the amusements. Because the case presented a large issue with respect to the causal relationship between the 1973 accident and her subsequent back condition and surgery, the relevancy of this evidence is plain; and it is fundamental that relevant evidence being in some degree evidence that advances the inquiry and thus has probative value, is prima facie admissible. McCormick on Evidence § 185, at 438 (2d ed. 1972).

As for the second point of inquiry, were there counter-balancing factors which should have moved the court to exclude the challenged evidence on the ground that it outweighed its probative value? Chief among such counter-balancing factors is the danger that the fact offered may unduly arouse the jury’s emotions of prejudice. And as McCormick accurately observes, supra, at 439, n. 31, what is meant here is an undue tendency of the evidence to cause the trier of fact to decide the case on an improper basis “commonly, though not always, an emotional one.” Because in the instant case all facets of appellant’s trip to and from Florida were explored on cross-examination, we cannot say that the court abused its discretion in not acceding to appellant’s request that evidence relating to appellant’s sharing of a motel room with her then fiance, to whom she is now married, was prejudicial and that its probative value was substantially outweighed by the risk that its admission would cause undue or unfair prejudice. See S. Gard, Jones on Evidence § 4:6 (6th ed. 1972).

IV

Finally, appellant asserts that the trial court erred in permitting appellees’ counsel to refer in opening statement to the fact that Mrs. Feeney received a 30% permanent partial industrial disability from the Workmen’s Compensation Commission as a result of her 1968 low back injury; and also in permitting the same evidence to be read to the jury, during the trial, from the order of the Commission. It is contended that such evidence was irrelevant and prejudicial.

We find that appellant waived her right to object on appeal to the admission of this evidence, for two reasons. First, the rule is clear that in order properly to preserve an objection to opposing counsel’s alleged prejudicial comments made during argument to the jury, there must be a request for remedial action. A curative instruction must be requested or a motion for mistrial made; a mere objection is insufficient. Dorsey Bros. v. Anderson, 264 Md. 446, 454-55, 287 A. 2d 270, 275 (1972); Tully v. Dasher, 250 Md. 424, 440, 244 A. 2d 207, 216 (1968). The same principle applies to an opening statement. Here, the appellant merely objected to the alleged prejudicial comment. Secondly, without objection, the very testimony which appellant sought to exclude was elicited from Mrs. Feeney on cross-examination when she testified that she received a 30% rating as a result of her Workmen’s Compensation claim. The subsequent reading of the percentage from the Commission’s order was merely cumulative and the objection, made at that point, came too late. Maryland Rule 522 d. 2. states:

“Time To Be Made — Waiver.
Every objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be treated as waived.” See Forrester v. State, 224 Md. 337, 343-44, 167 A. 2d 878, 881 (1961).

Even if the questions were properly preserved, we would find that the trial court’s actions in permitting introduction into evidence of the Commission's determination of percentage disability was proper. The critical question in this case was whether the appellees’ negligence caused Mrs. Feeney’s injuries, and, assuming causation, to what extent the appellant’s previous injury to her back in 1968 contributed to her present complaints. Evidence of the appellant’s pre-existing back condition was, therefore, extremely relevant to the jury’s determination. See Burns v. Shields, 256 Md. 537, 261 A. 2d 161 (1970); Kantor v. Ash, 215 Md. 285, 137 A. 2d 661 (1958). The importance of this issue was emphasized by the trial court in its charge to the jury:

“It is for you to determine whether any of the plaintiffs present complaints or disability result from the automobile accident in November 1973, or whether they result from her accident at the Town House Motor Motel in May 1968, or a combination of both accidents. If you should find from the evidence, that the plaintiff had disabilities which pre-existed the accident involved in this case, nevertheless, if you further find that such accident aggravated such pre-existing disabilities, then the defendants are not relieved of the responsibility for the consequences of their negligence by showing that the injury would have been of less severity if it had been inflicted on someone without the plaintiff’s pre-existing disabilities. On the contrary, the defendants remain liable for all damages and injuries sustained by the Plaintiff, which you find resulted from the aggravation of her pre-existing disabilities.
“If you find that the plaintiff has a permanent disability to her low back, it is for you to determine whether any portion of that disability pre-existed the accident complained of in this case. You are to award damages only for thdt portion of the permanent disability, if you so find, which you may find was caused by the November 197S accident.” (Emphasis added.)

The Commission’s determination of disability was received as evidence of the appellant’s pre-existing condition. Its order did in fact determine an issue relevant to the instant litigation. See McCormick on Evidence, supra, § 185. Its admissibility is clear. Also before the jury, without objection by appellant, was Dr. Reahl’s evaluation of her disability at 35% and Dr. Harrison’s assessment of 15% to 20%. The weight to be given by the jury to the respective evaluations was not the subject of a requested instruction and the trial court gave none. We find it unnecessary to decide the question.

Judgment affirmed; appellant to pay the costs.

      . The situation here is unlike that presented when there is an alleged inadequacy of verdict but no claim of error by the trial court_ either in its rulings on evidence or in its instructions to the jury. See Kirkpatrick v. Zimmerman, 257 Md. 215, 262 A. 2d 531 (1970) where it was emphasized that the granting of a new trial solely because of inadequacy of damages awarded by a jury was within the sound discretion of the trial court, upon a motion for a new trial, whose action would not be disturbed by the Court of Appeals. See also Leizear v. Butler, 226 Md. 171, 179, 172 A. 2d 518 (1961), and see White v. Parks, 154 Md. 195, 203, 140 A. 70, 74 (1928), where it was held that the size of the verdict can be “given weight” in the Court of Appeals only where, “if legal error is found in the rulings of the trial court, it becomes necessary to consider if the amount of the judgment is indicative of injury to the appellant.”

      . At the time of trial appellant had remarried and was sometimes referred to in the proceedings as Catherine Simon.

      . The bill was introduced into evidence by stipulation between the parties only as evidence of the severity of the collision and not as an element of appellant’s damages.

      . Before the trial commenced, at proceedings in chambers, appellant’s counsel had unsuccessfully sought a ruling by the trial judge that neither the percentage of disability found by the Commission nor the amount of the award was admissible. The trial court ruled, “I am not going to admit the dollar amount, but I am going to admit the percentage. That is a judicial determination.”

      . At the same proceedings in chambers prior to trial, appellant’s counsel asked for a ruling that the fact that appellant and her fiance shared the same room during this trip was irrelevant “in the absence of any evidence to suggest that something happened in that room to cause her to have a back condition.” This was denied.

      . There was no exception by appellant to the instruction.

      . Appellant, on redirect examination, denied that sexual relations had occurred. The trial court stated, in ruling the evidence admissible, “It’s a fair inference that they did have sexual relations. Mr. Cadigan states that the lady had not had any medical attention of any kind for some three months prior to the trip, and after the trip the plaintiff complained of pain in her back. So that’s the reason I am going to permit it.” In appellant’s brief, it is stated with some hyperbole, “The evidence disgraced, humiliated and degraded the witness” and that members of the jury may have felt that her back pain and surgery were “punishment inflicted by her Creator for her moral transgression and she consequently got what she deserved.”

      . See n. 4, swpm, with reference to the denial by the court immediately before trial of appellant’s request for the exclusion of this evidence.

      . The court did not permit the disclosure to the jury of the monetary amount of compensation awarded.