author: Liss, J.,

text:
    RUSSELL H. GITTINGS et al. v. THE BOARD OF SUPERVISORS OF ELECTIONS FOR BALTIMORE COUNTY et al.
    [No. 629,
    September Term, 1977.]

      Decided February 10, 1978.

      The cause was argued before Moylan, Liss and MacDaniel, JJ.
    Submitted on brief by G. Darrell Russell, Jr., for appellant.

      W. Lee Thomas for appellee, Arlen Realty, Inc. John H. Hessey, IV, with whom were Mahlon W. Hessey and Hessey & Hessey on the brief, for appellee, Grand Lodge of Ancient, Free and Accepted Masons of Maryland.
   Liss, J.,

delivered the opinion of the Court.

On November 1, 1976, the Baltimore County Council enacted Bill No. 110-76, which adopted the official Comprehensive Third Councilmanic District Zoning Map for Baltimore County. Among the changes approved by that map was the rezoning of a tract of 409 acres of land known as “Bonnie Blink” (described by the Council as Issue 3-92), located to the north of Shawan Road, west of York Road, and east of Interstate 83. Several different zoning classifications were assigned to portions of the tract, namely, BM-CT (Commercial), MLR (Manufacturing Light Restricted), DR-1, DR-2, DR-3.5 (all Residential), and RC-4 (Rural Conservation).

Appellants Russell H. Gittings and others, as aggrieved taxpayers and voters of Baltimore County, sought to bring that portion of Bill No. 110-76 which rezoned the Bonnie Blink tract to referendum before the voters of Baltimore County. The Bonnie Blink tract is owned by the appellee, Grand Lodge of Ancient, Free and Accepted Masons of Maryland (hereafter, Grand Lodge); the appellee, Arlen Realty, Inc. (hereafter, ARI) is a contract purchaser of a portion of the tract.

The power of the people to bring to referendum a law passed by the General Assembly of Maryland and the procedure to exercise that power is found in the Maryland Constitution, Article XVI. A similar power and procedure to bring to referendum any enacted law or ordinance of the Baltimore County Council is found in the Baltimore County Charter, Section 309 (a), Baltimore County Code (1968, 1975 Cum. Supp.). The provisions of Art. XVI of the Constitution of the State of Maryland and § 309 (a) of the Baltimore County Charter are essentially the same. The only difference relevant to the dispute before us is that Art. XVI designates the Secretary of State as the official to receive petitions for referendum; whereas, § 309 (a) designates the Board of Supervisors of Elections of Baltimore County (hereafter, Board) as the agency to receive such petitions.

The pertinent portion of § 309 (a) provides:

“The people of Baltimore County reserve to themselves the power known as ‘The Referendum,’ by petition to have submitted to the registered voters of the county, to approve or reject at the polls, any enacted law or ordinance or part of any such law or ordinance of the county council. The referendum petition against any such law or ordinance shall be sufficient if signed by ten per centum of the qualified voters of the county calculated upon the whole number of votes cast in the county for Governor at the last preceding gubernatorial election. Such petition shall be filed with the board of supervisors of elections of Baltimore County within forty-five days after the enactment of the law to be referred to the voters at the next general election. If such a petition is filed as aforesaid, such law or ordinance or part thereof to be so referred shall not take effect until thirty days after its approval by a majority of the qualified voters of the county voting thereon at the said next general election; provided, however, that if more than one-half but less than the full number of signatures required to complete any referendum petition against such law or ordinance to be filed within forty-five days from the date of its enactment, the time for the law to take effect and the time for filing the remainder of signatures to complete the petition shall be extended for an additional thirty days with like effect.”

It is conceded by all parties that the number of votes cast in Baltimore County in the gubernatorial election of 1974 was 185,240 and that the valid signatures of a total of 18,524 qualified voters was ultimately required to petition the Bonnie Blink rezoning to referendum. In order to avail themselves of the 30 day grace period authorized by § 309 (a), it is admitted by the appellants that they were required to file by no later than December 16,1976 (i.e., 45 days after the enactment of Bill No. 110-76), petitions signed by a minimum of one-half of the required number of qualified voters — or 9262 signatures. Petitions were seasonably filed which allegedly contained the valid signatures of 9523 qualified voters.

After the petitions had been filed, the Board undertook to examine the signatures on the petitions in order to determine whether they were in fact those of duly qualified voters of Baltimore County and therefore valid. Appellants have raised no issue as to the authority and duty of the Board to make such a determination. We note that the Court of Appeals had a similar situation before it in Barnes v. State, 236 Md. 564, 204 A. 2d 787 (1964), in which it was argued that the Secretary of the State of Maryland, who received petitions as did the Board in this case, did not have the authority to decline to accept referendum petitions on the ground of the invalidity of some of the signatures. The facts in Barnes show that the Secretary examined the petitions filed with him and rejected a number of signatures appended thereto which left the first half of each referendum petition short of the required number. On the basis of this determination, the Secretary declined to certify the law to be placed on the ballot for referendum. Judge Oppenheimer, speaking for the Court, held that since the Secretary of State was the official designated by Art. XVI of the Constitution to receive the petitions that he acted within his powers and duties in making the initial determination as to whether the requisite number of valid signatures were appended. In neither Art. XVI nor in § 309 (a) is the power and duty to make the initial determination explicitly spelled out; but, by analogy, on the basis of the holding in Barnes, we conclude that the Board — the agency designated by the Baltimore County Charter to receive the petitions — has the responsibility to make the initial determination as to the validity of signatures on referendum petitions.

In the exercise of its responsibility, the Board determined that 804 of the signatures were invalid; some of the signatures were of persons who were not qualified voters of Baltimore County; other signatures were illegible and therefore could not be identified as qualified voters; and, finally, there were instances where the same person had signed more than one time. Appellants do not contest the factual conclusions of the Board as to the invalidity of these signatures. Subtracting the 804 invalid signatures from the 9523 filed, the petitions had appended to them a total of only 8719 valid signatures, i.e., 543 less than the 9262 needed to comply with the requirements of § 309 (a) of the County Charter.

Appellants have raised three issues in their brief, but we believe — as did the trial court — that the first issue is dispositive of the controversy in this matter. That issue, as stated by the appellants, is that “the court should have granted the summary judgment in favor of the plaintiff as against the defendant for reasons of equity.” We are constrained to admit that we find it difficult to comprehend the contentions of the appellants who characterize their own position as being supported by a “somewhat obtuse vein of argument.” As we perceive their argument, they admit that they failed to comply with the provisions of § 309 (a) of the County Charter but suggest that equity requires that they be permitted another shot at compliance. We have no right under the law to grant such a dispensation.

The leading case on this facet of the law is Tyler v. Secretary of State, 229 Md. 397, 184 A. 2d 101 (1962), which involved an effort to enjoin the putting to referendum a law which provided for payment by Baltimore County of the costs of transporting students at private schools. Facially, sufficient signatures had been timely submitted to the Secretary of State. Plaintiff’s Bill alleged among other things that many of the petitions included the names of persons who were not registered voters of Baltimore County; that, therefore, the affidavits which accompanied the petitions were nugatory; and for this reason, there were insufficient signatures to bring the law to referendum. The Court pointed out that certain jurisdictions have adopted the view that “the referendum is a concession to an organized minority and a limitation upon the rights of the people.” Id. at 402. See People v. Kelly, 294 Mich. 503, 293 N. W. 865 (1940). The Court went on to state:

“We believe that it is clear, in any case, that the stringent language employed in Section 4 of [Article XVI of the Maryland Constitution which was translated substantially into Section 309 of the Baltimore County Code] shows an intent that those seeking to exercise the right of referendum in this State must, as a condition precedent, strictly comply with the conditions prescribed.” Id. 229 Md. at 402.

Beall v. State, 131 Md. 669, 103 A. 99 (1917); Headley v. Ostroot, 76 N.W.2d 474 (S. Dak. 1956); Dawson v. Meier, 78 N.W.2d 420 (N. Dak. 1956).

In a succession of cases since Tyler, the Court of Appeals has held that the language of Art. XVI is mandatory and must be strictly complied with by those seeking to avail themselves of the right of referendum. In Ferguson v. Secretary of State, 249 Md. 510, 240 A. 2d 232 (1968), the Court held as mandatory those provisions of Art. XVI, § 4 of the Maryland Constitution which require that there be attached to each of the papers making up a petition for referendum an affidavit of the person procuring the signatures stating that to his own personal knowledge every signature is genuine and bona fide and that of a registered voter. In Ferguson, affidavits made on knowledge, information, and belief rather than on personal knowledge were held to be so defective as to invalidate the petitions for referendum. In response to the petitioners’ complaint that compliance with the constitutional requirement was impossible of fulfillment, the Court stated that “this Court cannot by construction eliminate a mandatory provision deliberately adopted by the General Assembly requiring that the affidavit in regard to the signer’s registration be made on the affiant’s knowledge. See Buehholtz v. Hill, 178 Md. 280, 286,13 A. 2d 348, 351 (1940). If the burden is too heavy, the remedy is by an appropriate amendment to Article XVI.” Id. 249 Md. at 517.

In Abell v. Secretary of State, 251 Md. 319, 247 A. 2d 258 (1968), the Court of Appeals held that the language as to the time when referendum petitions must be filed was mandatory, and it approved the action of the Secretary of State in refusing to refer to referendum a statute providing for the gradual abolition of slot machines because the petitions were not filed in strict compliance with the provisions of Art. XVI, § 2.

The earlier case of Phifer v. Diehl, 175 Md. 364, 1 A. 2d 617 (1938), concerned an act regulating the practice of dentistry in Maryland which was sought to be referred to referendum. A timely petition was presented, signed by over 7000 persons, most of whom lived in Baltimore City. Less than an additional 2500 were residents of Baltimore County. At the time of this controversy, the Constitution of Maryland required the filing of signatures of at least 10,000 voters of whom no more than one-half could be residents of Baltimore City or any county. The Court concluded that as the petitioners had failed to secure the number of signatures of county voters required by the provisions of the Constitution, this failure rendered the petition nugatory and precluded it from being referred to referendum.

It is understandably disappointing to the residents of Baltimore County who sought to petition this issue to referendum that they are foreclosed by this decision from an opportunity to submit the issue to the electorate of the county. However, where a group of the citizens of the county seek to challenge a decision made by the lawfully designated representatives of the entire body politic, they must strictly adhere to those provisions of the law which grants to them the concession of the referendum. Where, as in this case, they fail to meet the constitutional and statutory requirements which authorize the exercise of the privilege granted, the proposed referendum must fail.

Judgment affirmed.

Costs to be paid by appellants.

      . Appellees, below and in their brief, raised additional objections to the validity of other signatures on the petitions, but as we believe the issue of the failure of the appellants to secure the required number of valid signatures to be dispositive of this case, we do not consider these issues in this opinion.


source: Caselaw Access Project

author: Moore, J.,

license: Public Domain

text:
    RODNEY KING PULLEY v. STATE OF MARYLAND
    [No. 544,
    September Term, 1977.]

      Decided February 14, 1978.

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

      Geraldine Kenny Sweeney, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Arrie W Davis, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and Harvey Greenberg, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Moore, J.,

delivered the opinion of the Court.

Appellant, Rodney King Pulley, was convicted in a jury trial in the Criminal Court of Baltimore (Grady, J., presiding) of first degree murder, attempted robbery with a dangerous and deadly weapon, and use of a handgun in the commission of a crime of violence. A motion for a new trial was denied, and the court imposed sentences of life imprisonment for first degree murder, 20 years for attempted robbery (to run consecutively), and 15 years for the handgun offense (to run concurrently).

The issues on this appeal are succinctly stated in appellant’s brief:

I. “Did the trial court err in refusing defense request for an alibi instruction?”

II. “Did appellant’s separate convictions and sentences for felony murder and the underlying felony violate the Fifth Amendment’s double jeopardy clause?”

III. “Did the trial court err in overruling defense objection to testimony concerning other uncharged crimes committed by appellant?”

We find reversible error under I and II, above, and are obliged to remand the case for a new trial, albeit the fourth trial for these offenses.

FACTS

Appellant’s arrest and subsequent indictment stemmed from a police investigation of the circumstances surrounding the death, on October 16,1974, of one Edsell Phillips, an Ohio resident, whose body was found in an automobile owned by him and parked near the Derby Bar on Park Heights Avenue in Baltimore City. An autopsy report prepared by the Medical Examiner’s office established the cause of death as a gunshot wound.

Officer David Sweet of the Baltimore City Police Department provided the initial leads for the investigation. On October 29, 1974, Sweet was approached by Samuel Brown, Jr., a distant cousin of the police officer, who volunteered information concerning a shooting in front of the Derby Bar. Brown’s information implicated himself and appellant in the events culminating in Phillips’ death. Sweet contacted the Homicide Division, and Brown was arrested. The State’s Attorney’s office thereafter agreed to enter a nolle prosequi as to homicide and to permit a guilty plea to a lesser charge, in exchange for Brown’s cooperation in building the State’s case against appellant.

At the trial below, the State’s major witness against appellant was Samuel Brown, Jr. He testified that, on the evening of the alleged offenses, he first met appellant, who was a friend of Brown’s younger brother, and decided to commit a robbery with him. Brown was in particular need of money, his father having threatened to turn him out of the house if he had not procured a job by that date. Appellant was, at that time, in possession of a handgun. The duo began to explore the neighborhood in search of a victim, but before settling upon one, stopped in a sandwich shop, where Arvin Johnson, a friend of Brown’s joined them in their endeavor. The occupant of the car parked at the Derby Bar was eventually chosen as their prey. Brown’s role was to trick the occupant into lowering his car window, and then to retreat and act as a look-out. This having occurred, appellant and Johnson approached the victim. Brown heard them arguing over who would receive the money; a shot rang out, and Brown saw appellant with the gun in his hand.

Expert fingerprint evidence was produced by the police to the effect that a latent palmprint found on the window of the victim’s car matched appellant’s left palmprint.

Appellant testified in his own defense to an entirely different version of his activities. On the evening prior to the homicide, October 15th, appellant was robbed of a leather coat, and borrowed a gun from his cousin, Charles Thomas, presumably to protect himself during his walk home. He resided with his mother and two sisters in the Cherry Hill section of the city, and, that same night, inquired of his mother whether he should attempt to purchase the gun for her protection because of his imminent entry into the Merchant Marine. Appellant’s mother declined this offer, and requested that he return the gun.

During the afternoon of October 16th, appellant visited his cousin, Joseph Thomas, brother of Charles Thomas, at his place of work. Joseph invited him to dinner and, upon learning that appellant intended to return the gun to Charles that evening, also offered to drive appellant to Charles’ house, after dinner. Appellant accepted the invitation, accompanied his cousin home, and, before dinner, helped him wash his car. While appellant worked on the car’s interior, Joseph having gone inside the house, Samuel Brown and a friend stopped by. Brown stated that he had “burned a man for some dope” and needed a place to hide. Appellant refused this request, but offered instead to loan Brown the unloaded gun, provided Brown would return it to him that evening. Brown then took the gun and left.

Appellant said he informed his cousin Joseph about the incident, and the latter was upset. He further testified that he had dinner and spent the entire evening at his cousin’s house. Later that night, Brown reappeared, returned the gun, and stated to appellant that he had shot a man. After Brown left, appellant ran to the vicinity of the Derby Bar, where Brown had said the shooting occurred, saw the parked car, and then ran back to his cousin’s house. Appellant claimed to have been absent from the house for only this ten-minute period during the entire evening. He subsequently returned the. gun to his cousin, Charles Thomas, and learned, at that time, that the gun contained bullets.

Joseph Thomas and his wife, Shirley, corroborated appellant’s testimony that he had spent the entire evening at their home on the date of the incident, and that he had been gone for “no more than five minutes” late that night. Joseph further acknowledged that appellant had told him about lending the gun to a friend before dinner.

I

At the close of the trial court’s instructions, appellant’s counsel excepted to the court’s failure to charge the jury with respect to the alibi evidence presented. The following proposed instruction had previously been submitted in writing by appellant:

“Evidence has been introduced in this case by the Defendant, Rodney Pulley, tending to establish that at the time of the alleged offense he was elsewhere, specifically, at the home of his cousin, Joseph Thomas. In this regard, I remind you that the burden of proving the Defendant guilty is upon the prosecution. The law never imposes upon a defendant in a criminal case the burden or duty of calling any witnesses or producing any evidence.
“If, after consideration of all of the evidence in this case, you have a reasonable doubt as to whether the Defendant was present at the time and place the alleged offense was committed, you must acquit him.”

The court declined to give a separate instruction on alibi, stating:

“Well, alibi under the recent cases, is being held just one of the other elements that the State has to prove, namely, that the man was present at the scene of the crime. . . . [I]f the defendant. . . seeks to call to the attention of the jury one fact which they have tried to disprove, namely, the lack of presence at the scene of the crime, then the State, it seems to me, is entitled to a reference to the other testimony, that showing that he was at the scene of the crime and pulled the trigger. I think alibi testimony is really a separate and distinct instruction. ... It is no longer a facet that requires special reference. It is one factor concerning presence at the scene of a crime, which the State either proves or doesn’t prove. ...”

Judge Grady was, of course, eminently correct in ruling that “alibi” does not constitute an affirmative defense. As Judge Moylan stated for this Court in Robinson v. State, 20 Md. App. 450, 459, 316 A. 2d 268, 272 (1974):

“We think the sound view to be that an alibi is not an affirmative defense, placing any burden upon a defendant beyond the self-evident one of attempting to erode the State’s proof to a point where it no longer convinces the fact finder beyond a reasonable doubt. Proof of an alibi, like any other defense testimony, is simply a means of controverting the State’s effort to establish criminal agency.” Daniels v. State, 24 Md. App. 1, 5, 329 A. 2d 712, 715 (1974); Jackson v. State, 22 Md. App. 257, 322 A. 2d 574 (1974); State v. Grady, 276 Md. 178, 345 A. 2d 436 (1975) .

We hold, however, that the trial court drew an erroneous conclusion from this proposition when it ruled that a separate alibi instruction was not required.

It is a settled proposition of law in Maryland that the trial court, in a criminal case, is obliged to give advisory instructions “on every point of law essential to the crime charged and supported by the evidence” at the request of any party. Carter v. State, 15 Md. App. 242, 248, 289 A. 2d 837, 840-41 (1972); Md. Rule 757(b). The application of this principle to the subject of alibi was implicitly recognized in Couser v. State, 36 Md. App. 485, 374 A. 2d 399 (1977). We there held, however, that the lower court’s failure to instruct on alibi was not erroneous where a request for a specific instruction had not been made below, and no evidence had been presented to support an alibi charge. 36 Md. App. at 499, 374 A. 2d at 406-07.

In the instant case, a request for a specific alibi instruction was, of course, made. Further, the evidence presented by appellant, i.e., his own testimony, corroborated by that of his cousins, Joseph and Shirley Thomas, if believed, would have been sufficient to establish an alibi for the entire period during which the sequence of events related by the State’s witness, Samuel Brown, unfolded. Under these circumstances, the court’s refusal to grant appellant’s request for an alibi instruction, where the instruction correctly stated applicable law, see Dillon v. State, 27 Md. App. 579, 342 A. 2d 677 (1975), aff'd, 277 Md. 571, 357 A. 2d 360 (1976), was reversible error.

Our holding is in conformance with the prevailing rule in the majority of state jurisdictions. See, e.g., Jackson v. State, 374 A. 2d 1 (Del. 1977); Davis v. State, 254 So. 2d 221 (Fla. App. 1971); Hill v. State, 228 S.E.2d 898 (Ga. 1976); State v. Simon, 375 S.W.2d 102 (Mo. 1964); State v. Searles, 197 A. 2d 384 (N.J. Super. 1964); People v. Ciprio, 294 N.Y.S.2d 305 (Sup. Ct. 1968); Schroeder v. State, 543 S.W.2d 382 (Tex. Crim. App. 1976); Johnson v. Commonwealth, 168 S.E.2d 97 (Va. 1969); Annot., 118 A.L.R. 1303, 1312 (1939); 4 Wharton’s Criminal Procedure § 540 (12th ed. Torcía 1976). The defendant must, of course, have introduced sufficient evidence at trial to constitute an alibi in order for the rule to apply. This principle was well-stated in Ferguson v. State, 488 P. 2d 1032, 1038-39 (Alaska 1971):

“[W]e join the majority of courts which hold that where there has been sufficient evidence to raise an issue of alibi, and an alibi instruction has been requested, the failure to so instruct constitutes prejudicial and reversible error.
“Sufficient evidence to raise an alibi issue exi[s]ts when the defendant’s evidence, if believed, reasonably excludes the possibility of his presence at the time and place of the alleged offense; the defendant’s evidence must tend to prove that it was impossible or highly improbable that he was at the scene of the crime when it was alleged to have occurred. ” (Emphasis added.)

The Alaska court also dismissed as “overly technical” the State’s argument that a separate instruction was not required simply because alibi was not an affirmative defense. 488 P. 2d at 1038.

The federal courts have been sensitive of the rationale for requiring an instruction on alibi. The due process clause of the Fourteenth Amendment protects an accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime charged. In re Winship, 397 U. S. 358, 364 (1970). Since alibi is generally held not to be an affirmative defense, an alibi instruction removes the possibility that the jury will place the burden of proof upon the defendant with respect to the alibi. Stump v. Bennett, 398 F. 2d 111 (8th Cir.), cert. denied, 393 U. S. 1001 (1968). In the recent case of Wright v. Smith, 434 F. Supp. 339, 344 (W.D.N.Y. 1977), the court stated:

“When a defendant raises an alibi defense, he is entitled to jury instructions that specify that the Government must bear the burden of persuasion on this element of the offense as well. See United States v. Marcus, 166 F.2d 497, 503-04 (3d Cir. 1948). The jury must be informed that, once a defendant has offered proof that he was not present at the time and place that the crime was committed, then the Government must convince the jury beyond a reasonable doubt that the defendant’s alibi is not true [United States v. Booz, 451 F. 2d 719, 723 (3d Cir. 1971), cert. denied, 414 U. S. 820, 94 S. Ct. 45, 38 L.Ed.2d 52 (1973)], and that the defendant was in fact present at the scene when the crime was committed. If such specific instructions are not given when a defendant offers alibi evidence at trial, there is a likelihood that the jury will become confused about the burden of persuasion. . . .” (Emphasis added.) See also Fay v. United States, 22 F.2d 740 (9th Cir. 1927); United States v. Burse, 531 F.2d 1151 (2d Cir. 1976); United States v. Megna, 450 F.2d 511 (5th Cir. 1971); Stump v. Bennett, supra; United States v. Alston, 551 F.2d 315 (D.C.Cir. 1976).

We find no merit in the State’s contention in the instant case that the requested alibi instruction was “fairly covered” by the trial court’s other instructions with respect to the presumption of innocence and the burden of proving the appellant guilty beyond a reasonable doubt. Sufficient evidence was presented by appellant for his alibi to have been a complete defense to the crimes charged, if believed, and, since a request was made, he was entitled to have the jury separately instructed on this issue. United States v. Burse, supra; Carter v. State, supra; Couser v. State, supra.

II

Appellant alleges that his separate conviction and sentence for attempted armed robbery and first-degree felony murder are violative of the double jeopardy clause of the Fifth Amendment under the recent case of Newton v. State, 280 Md. 260, 373 A. 2d 262 (1977), decided some two months after the imposition of sentence in the instant case. The Court of Appeals held in Newton that “independent proof of wilfulness, premeditation and deliberation” would prevent the merger of convictions for felony murder and the underlying felony offense. 280 Md. at 269, 373 A. 2d at 267. In the absence of such independent proof, however, the underlying felony and the murder would merge. Id.; Frye v. State, 37 Md. App. 476, 378 A. 2d 155 (1977), cert. granted, December 23, 1977.

The State concedes in its brief that the victim in the instant case was randomly chosen and that “the record, transcript and the trial judge’s instructions do not support a finding of independent evidence of premeditation and deliberation sufficient to avoid the proscriptions of the double jeopardy clause of the Fifth Amendment.” Our review of the record confirms this conclusion.

The trial court therefore erred in convicting appellant of both felony murder and the underlying felony of attempted armed robbery.

III

During the direct examination of the State’s witness, Samuel Brown, Jr., evidence was elicited with respect to appellant’s apparent negotiations for the purchase of “Dummies” (valium capsules) from certain other individuals in the basement of Brown’s home. The court overruled the objections of appellant's counsel to this testimony; the following colloquy then occurred at the bench:

“Mr. Walker [Defense Counsel]: If Your Honor please, I respectfully move for mistrial at this time. The State has now involved ... my client ... in evidence of other criminal misconduct. . . . The evidence of other crimes, Your Honor, in certain particular isolated situations is relevant. I don’t understand this to be one of them. I think it’s highly prejudicial. I think it’s irrelevant. . . .

“Mr. Brave [State's Attorney]: Well, I would prove, Your Honor, that this witness would testify that following the purchase of these ‘Dummies,’ Rodney Pulley consumed some, during the hour ensued, those ‘Dummies’ took their effect and he was acting rather bizarre, strange, and high during the course of this entire trip . . . which finally resulted in the shooting.

“The Court: Are you saying that this series of events leading up to the death of this deceased in this case followed the taking of some of these drugs.

“Mr. Brave: Yes.

“The Court: Very well. The motion for mistrial is denied. It seems to me impossible to separate every activity that someone may have whether it's legal or illegal if it is part and parcel of a series of events leading to the crime. ” (Emphasis added.)

The rule with respect to evidence of “other crimes” or prior criminal conduct was explicated in Ross v. State, 276 Md. 664, 669, 350 A. 2d 680, 684 (1976): “[I]n a prosecution for a particular crime, evidence which in any manner shows or tends to show that the accused has committed another crime wholly independent of that for which he is on trial ... is irrelevant and inadmissible.” Such evidence should be subjected to “rigid scrutiny” because of its potential for prejudice, and should be admitted only if it comes within one of the recognized exceptions. Id.; White v. State, 33 Md. App. 626, 630, 365 A. 2d 605, 607 (1976). Such an exception is where “the several offenses are so connected in point of time or circumstances that one cannot be fully shown without proving the other. ..Ross v. State, supra, 276 Md. at 670, 350 A. 2d at 684. See also Johnson v. State, 9 Md. App. 327, 264 A. 2d 280 (1970).

In view of our disposition of this case under the alibi instruction issue, we need not decide whether the admission of the challenged evidence constituted grounds for a mistrial. Upon a retrial, if the same evidence is offered, its potentially prejudicial effect should be carefully evaluated by the trial court in the light of Ross v. State, supra. See also Brafman v. State, 38 Md. App. 465, 381 A. 2d 687 (1978).

Judgments reversed; remanded for new trial; Mayor and City Council of Baltimore to pay the costs.

      . Prior to the trial resulting in this appeal, mistrials were declared in two previous jury trials before Judge James A. Perrott for these and other offenses.

      . The only evidence presented with respect to appellant’s planned entry into the Merchant Marine was an application to enroll in a seamanship school in Piney Point, Maryland. The application had not, as yet, been accepted, and additional information had been requested by the school relative to a prior arrest.

      . At the time of trial, this rule appeared in essentially the same form as Md. Rule 756(b).

      . For the minority view that the failure to charge on alibi is not reversible error, see, e.g., State v. Hess, 449 P. 2d 46 (Ariz. App. 1969); People v. Coleman, 365 N.E.2d 246 (Ill. App. 1977); Parsley v. Commonwealth, 321 S.W.2d 259 (Ky. 1959); Jenkins v. State, 134 P. 260 (Wyo. 1913). See also People v. McGinnis, 256 N.W.2d 587 (Mich. 1977).

      . In the following federal cases, cited in United States v. Burse, supra, 531 F. 2d at 1153, no prejudicial error was found in the trial court’s failure to give an alibi instruction: United States v. Coughlin, 514 F. 2d 904 (2d Cir. 1975) (no written request at trial); United States v. Cole, 453 F. 2d 902 (8th Cir.), cert. denied, 406 U. S. 922 (1972) (alibi evidence did not cover entire time period of crime); United States v. Erlenbaugh, 452 F. 2d 967 (7th Cir. 1971) aff’d, 409 U. S. 239 (1972); United States v. Lee, 483 F. 2d 968 (5th Cir. 1973), (defendant’s presence not an element of crime charged). See also United States v. Guillette, 547 F. 2d 743 (2d Cir. 1976).

      . For a summary of case law on whether an alibi instruction is required in the absence of a timely request at trial, see Annot., 72 A.L.R. 3d 547 (1976).


author: Melvin, J.,

text:
    MARTHA MORRISON et al. v. ROGER BRASHEAR t/a Brashear Coal Mines et al.
    [No. 639,
    September Term, 1977.]

      Decided February 14, 1978.

      The cause was argued before Moore, Melvin and MacDaniel, JJ.

      Herbert D. Morrison for appellants.

      Michael W. Shay, with whom was Jack I. Mullen on the brief, for appellees Roger Brashear and D & L Coal Company. Horace P. Whitworth, Jr., for other appellee.
   Melvin, J.,

delivered the opinion of the Court.

This appeal is from an order of the Circuit Court for Allegany County (Getty, J.) sustaining without leave to amend the demurrer of Roger Brashear, t/a Brashear Coal Mines, etal. (appellees), to the amended declaration of Martha Morrison, etal. (appellants). Because we think Judge Getty’s opinion fully and ably demonstrates the correctness of his ruling, we shall, with minor additions, adopt his opinion as the opinion of this Court. Judge Getty’s opinion is as follows:

"Without going into the entire history of ownership of the property that is the subject matter of this suit, for the purpose of this litigation it is sufficient to state that by deed dated April 20,1887, Carrie W. Morrison became the owner of a tract of land in Allegany County known as ‘Mineral Hills’. On May 18,1909, Carrie W. Morrison deeded to Mary Jane McDonald fifty-five acres of the surface of a portion of Mineral Hills expressly ‘reserving and excepting out of this conveyance all the coal and other minerals lying and being in, upon and under said lot or parcel of land’.

On April 6, 1910, Carrie W. Morrison executed a mortgage to one Summerfield Hendrickson on an obligation of $3,800.00. The property involved was that portion of Mineral Hills conveyed to Carrie W. Morrison by the deed of April 20, 1887. The mortgage contains the following exception: ‘reserving from the operation of this mortgage of that part of “Mineral Hills” conveyed to the mortgagor by the deed aforesaid, the following tracts and parcels of land... Tract of land conveyed by and described in a deed from Carrie W. Morrison to Mary Jane McDonald deed bearing date May 18, 1909, and recorded in Liber 104, folio 588 of said Land Records’.

The mortgage became in default and, in No. 10,938 Equity, the property was sold on July 9,1927, by the assignees of the mortgage to the Campbell Coal Company, one of the defendants herein. Martha Morrison and the other plaintiffs contend that the minerals reserved under the deed to Mary Jane McDonald were excluded from the mortgage and, therefore, did not pass to the purchasers under the foreclosure sale. On this reasoning they claim damages from the defendants for the wrongful extraction of coal from that portion of Mineral Hills deeded to Mary Jane McDonald with the reservation of minerals. Both defendants have demurred on the basis that the bill of complaint establishes that the plaintiffs have no title to the property in dispute, the same having passed under the sheriffs sale to the purchaser at foreclosure.

Plaintiffs cite Union Trust Co. of Pittsburgh v. Bellman, 150 Atl. 632, and Kincaid v. McGowan, 4 S.W. 802, in support of their position that the reservation in the McDonald deed excluded the minerals from the Hendrickson mortgage. The first case cited is clearly distinguishable from the present controversy. In the case cited by the plaintiffs Kensington Brick executed a mortgage expressly reserving the coal under a portion of the land unto a Plummer family with the right to remove the coal with the consent of Kensington Brick. After default the purchaser at the foreclosure sale brought suit alleging wrongful removal of the coal by Plummer. The court held that the reservation constituted a severance of the coal from the surface creating a separate estate that did not pass under the mortgage nor by sheriffs sale. In Bellman the minerals were expressly reserved unto named individuals, thus the intention to exclude them from the mortgage is clear. Under the present case the reservation in the mortgage is of the property ‘conveyed by and described in a deed from Carrie W. Morrison to Mary Jane McDonald’ which was of the surface only.

Plaintiffs argue that if the minerals under the McDonald tract were to be included in the mortgage, Mrs. Morrison could have expressly so stated. A similar contrary argument can be made that if the minerals under the McDonald tract were to be excepted from the mortgage Mrs. Morrison could have expressly so indicated. The intention of the parties must be gleaned from the instrument as a whole, i.e., the language employed, subject matter and surrounding circumstances. Weiprecht v. Gill, 191 Md. 478.

Kincaid, supra, is supportive of the position of the original grantor, Carrie W. Morrison. In that case, decided by the Kentucky court in 1887, the grantor conveyed surface and retained minerals to part of a tract of land. In a later deed he conveyed the remainder of the 22,000 acre survey expressly deducting the parcel previously conveyed. The court held that the interest retained in the first deed was a separate and distinct interest in a conveyance described by metes and bounds which rendered it a distinct interest from the remainder of the survey. Only by the use of apt words could the subsequent conveyance be construed to include this separate estate, the court concluded.

A contrary result was reached in Holloway’s Heirs v. Whatley, 131 S.W.2d, 89, 1939 Texas. In that case the grantor conveyed three tracts known as the Moses Donohue League reserving one-half of the minerals. Three years later he conveyed all his interest in the Elizabeth Munson League. The specific description was followed by a general statement that the grantor intended to convey his interest in all land owned by him in Liberty County, Texas. Both parcels were within the county and the court held that the latter deed included the minerals reserved in the former deed. The court reasoned that it was more logical to conclude that if the minerals! in the first deed were not to be included in the subsequent conveyance, the grantor should have used words excepting them as he had done when the first conveyance was made.

The mortgage in the present case conveys ‘all that tract and parcel of land lying in Allegany County... being part of “Mineral Hills” which was conveyed by and described in a deed from James Morrison and others to Carrie W. Morrison, said deed bearing the date the 20th day of April, 1887, recorded in Liber 63, folio 548 ... reserving from the operation of this mortgage of that part of Mineral Hills conveyed to the mortgagor by said deed the following tracts and parcels of land ... tract of land conveyed by and described in a deed from Carrie W. Morrison to Mary Jane McDonald’, etc. That land described in the exception was surface only and, therefore, the only property not intended to be included was the surface.

The mortgage covered all of Mineral Hills owned by Carrie W. Morrison. It is described in the Morrison to McDonald deed as being ‘part of Mineral Hills’, but the reason for the use of the words is dictated because of two out conveyances from Mineral Hills before Carrie W. Morrison became owner. One of these out conveyances was Military Lot No. 3748 and the other was a prior sale of twenty-eight acres. These conveyances are fully set forth in the deed of April, 1887, wherein Carrie W. Morrison became possessed of Mineral Hills.

The public notice of sale published at the time of foreclosure indicates that the exceptions relate only to those portions of Mineral Hills as were conveyed to others by Carrie W. Morrison. Had Mrs. Morrison intended to exempt from the mortgage the minerals under the McDonald tract she could have done so by the use of appropriate language. The rule that deeds should be construed against the grantor and in favor of the grantee applies with respect to the construction of an exception in a deed only when the words used are susceptible of more than one construction. Carroll's Lessee v. Granite Mfg. Co., 11 Md. 399. Hodges v. Owings, 178 Md. 300. Forests and Parks v. Georges Creek Co., 250 Md. 125. In this case it seems reasonably clear to the court that the mortgage was intended by all parties to include whatever Carrie Morrison owned in Mineral Hills.”

We add that Judge Getty’s ruling is also supported by former Md. Ann. Code, Art. 21, § 12 (1904), in effect at the time of the mortgage from Morrison to Hendrickson. That section [now appearing in substantially the same form in Md. Ann. Code, Real Prop. Art., § 2-101 (1974)] provided as follows:

“The word ‘grant’, the phrase ‘bargain and sell,’ in a deed, or any other words purporting to transfer the whole estate of the grantor shall be construed to pass to the grantee the whole interest and estate of the grantor in the lands therein mentioned, unless there be limitations or reservations showing, by implication or otherwise, a different intent.”

In the instant case, Carrie Morrison did “bargain, sell, give, grant, convey, release and confirm” unto Summerfield Hendrickson, all that part of “Mineral Hills” which was conveyed to her by deed dated April 20, 1887, but reserving from the operation of the mortgage “the following tracts and parcels of land ... Tract of land conveyed by and described in a deed from Carrie W. Morrison to Mary Jane McDonald deed bearing date May 18,1909 ____” (Emphasis Added). By virtue of the then Article 21, § 12, the mortgage transferred to Hendrickson the whole estate of Morrison in that part of “Mineral Hills” which she received by deed dated April 20, 1887 less that which she conveyed to McDonald by deed dated May 18, 1909. The only interest which Morrison actually conveyed to McDonald by deed dated May 18, 1909 was the surface interest in a certain tract which was originally part of “Mineral Hills”. Thus the mortgage transferred to Hendrickson all of Morrison’s interest in “Mineral Hill” less the surface interest in the tract which Morrison had previously conveyed to McDonald. The mortgage, then, clearly included the mineral interest in “Mineral Hills” that Morrison still owned and that had been conveyed to her by the April 20, 1887 deed.

Although, as the trial judge noted in his opinion, Kincaid v. McGowan, 4 S. W. 802 (Ky. 1887) would dictate a contrary result, we decline to follow the view expressed in that opinion.

Judgment affirmed; costs to be paid by appellants.

      . The mortgage also reserved from its operation another tract which Morrison had previously conveyed to one John S. Athey, Jr. and a right of way which Morrison had previously conveyed to the Roads Director of Allegany County. The effect of these reservations is not an issue in this appeal.

      . Less also, of course, the other tract of land and right of way which also were reserved from the operation of the mortgage. See note 1, supra.


author: Couch, J.,

text:
    EARL HENRY SPEARS v. STATE OF MARYLAND
    [No. 689,
    September Term, 1977.]

      Decided February 14, 1978.

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

      Arnold M. Zerwitz, Assigned Public Defender, for appellant.

      Alexander L. Cummings, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, Warren B. Duckett, Jr., State’s Attorney for Anne Arundel County, and James Gibbons, Assistant State’s Attorney for Anne Arundel County, on the brief, for appellee.
   Couch, J.,

delivered the opinion of the Court.

Appellant, Earl Henry Spears, was convicted of automobile larceny, possession of an automobile with an altered serial number, and malicious destruction of property following a court trial in the Circuit Court for Anne Arundel County (Childs, J.); he was subsequently sentenced to a term of two years for the larceny, and one year each for the other two offenses, to be served consecutively. From these judgments he appeals, raising two issues for our review:

1. Whether the trial judge erred by failing to rule on a motion to suppress before the close of the case?

2. Whether the evidence presented was sufficient for conviction of automobile larceny, possession of an automobile with an altered serial number, and malicious destruction of property?

One Judith Stockton owned a 1967 Pontiac G.T.O., maroon in color. On July 1, 1976 she reported to the police the theft of her car from in front of her residence in Rockville, Maryland. The next day appellant was involved in a collision with an Anne Arundel County police cruiser while being chased by a second Anne Arundel County police officer, Officer Bearden; this officer had been notified by radio that appellant had been involved in a chase in Prince George’s County and had eluded those officers after a lengthy high-speed chase. Officer Bearden testified appellant drove at a high rate of speed, committed numerous traffic violations, drove on the wrong side of the road and passed people on the right. The chase ended when the collision occurred, which took place in the Odenton area of Anne Arundel County. Due to the collision appellant was rendered unconscious and was taken to the University Hospital in Baltimore. Before being removed, however, it appears that an automobile registration card was taken from his person which showed a registration number identical to that found on the car’s door post; the car itself was identified on the registration card as a 1967 Pontiac G.T.O., maroon in color. The car was towed to a garage and inspected; it showed damage to the front. The police officer noticed that the serial number plate on the door post was affixed with rivets which were round in shape. Because of his training in auto theft matters he had learned that serial number identification plates are normally attached by rosette rivets, which are octagonal in shape. Suspicions aroused, he called in Officer Standiford, a detective with the Auto Theft Squad of the Anne Arundel County Police Department. This officer was allowed to testify, over objection, that he was able to find a confidential identification number on the frame of the car by crawling under the car and scraping dirt off a particular area of the frame. Having obtained this number, which did not match the serial number on the door post, through the police computer he determined that this car was the car reported stolen by Judith Stockton.

Judith Stockton identified the maroon G.T.O. as hers in four ways: by an afghan which she had left in her car and which was still on the rear seat, by scrape marks on the right side tires caused by her habit of rubbing curbs, by the front wheels which she had purchased specially, and by the paint job on the car.

Appellant testified he had purchased the car from his brother some two weeks before the incident, and had installed certain radio equipment in it and rear wheels of an unusual nature. The rear wheels and the radio equipment were on the car when the car was recovered by the police. Finally, appellant’s sister testified she witnessed the sale as described by appellant.

1

During the course of the trial appellant moved to suppress any evidence obtained by Officer Standiford stemming from his discovery of the confidential number on the basis that it was a warrantless search in violation of appellant’s Fourth Amendment rights. The trial court overruled this motion initially, then, after argument, the court held the matter under consideration. At the close of the State’s case appellant moved for a judgment of acquittal and renewed his motion to suppress. The court merely said “Motion denied”, without stating whether his ruling applied to the entire matter or merely the motion for judgment of acquittal. After the defense had put on its case, and after rebuttal by the State, appellant renewed his motion for judgment of acquittal and argued that Officer Standiford’s testimony regarding the confidential number should be suppressed and, if this was done, then the evidence was insufficient to support conviction. Following a colloquy between the court and counsel, the court stated:

“This Court finds, disregarding Officer Standiford’s testimony concerning what he did about lifting the secret serial number from the left frame of this car, that there is sufficient evidence to prove beyond a reasonable doubt and to a moral certainty the guilt of the accused. We have, in the first place, Mrs. Stockton’s testimony that she owned, and she proved through documentary evidence from the Department of Motor Vehicles, that she was on June 30th the owner of a maroon Pontiac GTO. That she parked it outside of her apartment that evening and that she did not give anyone permission to use the car. At the time the car was parked it had the letters on the front tire, front left tire scuffed so that they were no longer raised, as was the case when they were new, and she also had a distinctive afghan belonging to her grandmother in the back seat.”
“We then have the situation wherein Mrs. Stockton testified, saying that when the car was returned to her she not only identified it from its general appearance but also on looking in the window she could see her grandmother’s afghan which was multicolored and on the back seat of the car, and that she further recognized the car by the fact that the raised letters were scuffed from the front left tire when it was returned to her.”

Appellant argues here that he was entitled to a ruling on his motion to suppress, citing Brice v. State, 254 Md. 655, 255 A. 2d 28 (1969), and Davis v. State, 189 Md. 269, 55 A. 2d 702 (1947), and that the failure of the trial court to make a ruling constitutes reversible error. We have no quarrel with this as an abstract proposition, but find no error in the instant case because we think the trial court did, in effect, grant appellant’s motion. Certainly the above quoted part of the trial court’s opinion clearly shows he totally disregarded the evidence to which appellant objected, in ruling on the motions for judgment of acquittal and his ultimate finding of guilt. Keeping in mind that this was a court trial, we believe that what Judge Finan, speaking for the Court in State v. Hutchinson, 260 Md. 227, 233, 271 A. 2d 641, 644 (1970), said is apposite here:

“This assumption of the court might be valid were we to first, not believe the trial judge’s statement that he was disregarding and eliminating from his deliberations the substance of the inadmissible confession, and secondly, choose to ignore the professional expertise, experience, and judicial temperament with which our legal system has inherently invested a trial judge vis a vis a jury comprised of laymen. It is true that judges, being flesh and blood, are subject to the same emotions and human frailties as affect other members of the specie; however, by his legal training, traditional approach to problems, and the very state of the art of his profession, he must early learn to perceive, distinguish and interpret the nuances of the law which are its ‘warp and woof.’ ”

Accordingly, we find no merit to this contention.

2

Appellant’s next contention, simply stated, is that the evidence before the court was insufficient to convict him for any offenses of which he was convicted. We agree as to the conviction for malicious destruction but disagree as to the convictions for larceny and possession of an automobile with removed serial number.

We have said in the past that our function in reviewing the sufficiency of the evidence on appeal from a conviction in a non-jury criminal case, is not whether we might reach a different result from that of the trial court, but whether that court had sufficient evidence before it from which it could fairly be convinced, beyond a reasonable doubt, of the defendant’s guilt of the offense charged. See Carwell v. State, 2 Md. App. 45, 232 A. 2d 903 (1967), and Melia and Shelhorse v. State, 5 Md. App. 354, 247 A. 2d 554 (1968).

Keeping this standard of review in mind, our review of the record leads us to find that there was sufficient evidence to sustain appellant’s conviction for automobile larceny and possession of an automobile with removed serial number, but not for the malicious destruction offense.

(a) Larceny of automobile

Both sides here agree that an essential element to be proved in a larceny case is the proof of ownership of the property in another. Appellant maintains that without the testimony of Officer Standiford, there is insufficient evidence to show ownership of the Pontiac G.T.O. in Judith Stockton. We disagree. The court had the Stockton testimony before it, as set out above, that identified the vehicle personally to her. This is sufficient to support the court’s finding as to Stockton’s ownership.

(b) Possession of an automobile with an altered serial number

Appellant also contends that there was insufficient evidence to support his conviction for possession of an article with the serial number removed, because the State failed to prove that the serial number had been removed, and that his possession of a car with the serial number removed was knowing. This statutory offense requires for conviction not only the possession of a manufactured product on which the serial number has been “removed, defaced or obliterated” but the possession must be “knowing”.

To support a finding that the serial number on the G.T.O. had been “removed, defaced or obliterated” the record shows the positive identification by Judith Stockton that the car was hers, Stockton’s bill of sale and Maryland registration for her car that had been stolen, and Officer Bearden’s testimony as to the serial number that appeared on the door post. Accordingly, there is a rational inference that the car, identified to Stockton, at one time bore a serial number different from the serial number it bore at the time of appellant’s arrest. The finding of the court below that the: serial number had been removed is clearly supported by the! evidence. i

Likewise, the court could have found that appellant’s.' possession of the car with its serial number removed was; knowing. Officer Bearden testified to the high-speed chase of; appellant, in which appellant strenuously attempted to elude the police.

This Court, in McLean v. State, 6 Md. App. 366, 251 A. 2d 252 (1969), quoted with approval the general statement from Wigmore, Evidence, § 276 (3d ed. 1940), as follows:

“Flight from justice, and its analogous conduct, have always been deemed indicative of a consciousness of guilt. * * * It is today universally conceded that the fact of an accused’s flight, escape from custody, resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.”

The record supports a rational inference that appellant’s flight was a result of his knowledge that the car was stolen and the serial number removed, and that if he was arrested the larceny and removal of the serial number would become known. We find sufficient evidence and rational inferences to be drawn were present to have allowed the trial court to find appellant did knowingly have possession of a product from which the manufacturer’s serial number had been removed.

(c) Malicious destruction of property

Finally appellant contends the evidence was insufficient to sustain a conviction for malicious destruction of property. We agree.

Md. Code (1957) (1976 Repl. Vol.) Art. 27, § 111, provides “Any person who shall wilfully and maliciously destroy, injure, deface or molest any real or personal property of another shall be deemed guilty of a misdemeanor____” The elements of the offense under the statute are:

(1) the property may be real or personal but must be that of another;
(2) the property must be destroyed, injured, defaced or molested;
(3) the mischief must be wilful and malicious.

There can be no argument that in the instant case the property was personal and was at least injured. We have previously concluded that the evidence was sufficient for the trial court to find that the property was that of another (Judith Stockton). Consequently, the only remaining element of the offense to be considered is the mens rea; was there sufficient evidence to find that the mischief was wilful and malicious? This Court, speaking through Judge Orth (now Associate Judge of the Court of Appeals), in Duncan v. State, 5 Md. App. 440, 445, 248 A. 2d 176, 179 (1968), stated:

“We think that the special element of mens-rea in malicious mischief, designated in the statute as ‘wilfully and maliciously,’ requires either a specific intent to cause the destruction, injury, defacement or molestation of the property of another, or an act done in wanton and wilful disregard of the plain and strong likelihood of such harm, without any justification, excuse, or substantial mitigation.”

We do not find evidence of a specific intent to cause damage to the Stockton automobile, nor do we find evidence to support justification, excuse, or mitigation. Thus we must look to the record to determine if the damage was caused through wanton and wilful disregard of the plain and strong likelihood of such damage. We find the evidence deficient here, requiring us to conclude that the trial court’s finding was clearly erroneous. Maryland Rule 1086. The record is completely silent as to the circumstances surrounding the collision of the Stockton automobile and the Anne Arundel County police car. The operator of that vehicle was not called as a witness. Officer Bearden, the officer who chased the appellant, did not witness the collision. Appellant himself shed no light on the happening of the collision. All the trial court had before it was Bearden’s testimony that appellant drove at a high rate of speed, on the wrong side of the road on occasion, and passed some people on the right (which may or may not have been impermissible). We think this falls short of showing that the damage was caused by appellant’s wilful and wanton disregard of the plain and strong likelihood of such damage. There may have been many reasons for the collision, which were not necessarily the fault of appellant.

We hold the trial court’s finding of guilt here was clearly erroneous and vacate this judgment.

Judgments affirmed on larceny conviction (1st count) and on possession of vehicle with serial number removed (5th count).

Judgment vacated on malicious destruction conviction (6th count).

Costs to be paid by appellant.

      . Annotated Code of Maryland, Art. 27, § 389 (b):

        “Possession of article from which number removed, etc. — It shall be unlawful for any person knowingly to retain in his possession or to offer for sale any manufactured article or product from which the manufacturer’s serial number has been so removed, defaced or obliterated.”

      . “When an action has been tried by the lower court without a jury, this Court will review the case upon both the law and the evidence, but the judgment of the lower court will not be set aside on the evidence unless clearly erroneous and due regard will be given to the opportunity of the lower court to judge the credibility of the witnesses.”


author: Mason, J.,

text:
    SAMMIE HEWITT v. DEPARTMENT OF PUBLIC SAFETY AND CORRECTIONAL SERVICES
    [No. 27,
    September Term, 1977.]

      Decided February 15, 1978.

    The cause was argued before Morton, Mason and Wilner, JJ.

      Mary S. Elcano for appellant.

      H Edgar Lentz, Assistant Attorney General, with whom were Francis B. Burch, Attorney General, and Clarence W Sharp, Assistant Attorney General, on the brief, for appellee.
   Mason, J.,

delivered the opinion of the Court.

On March 1, 1976, the Secretary of the Department of Public Safety and Correctional Services issued an order reinstating the administrative conviction of Sammie Hewitt for violation of an institutional rule. From an affirmance of the Secretary’s order by the Baltimore City Court, Hewitt appeals and in substance contends that the lower court erred in finding that there was substantial evidence to support appellant’s administrative conviction of being under the influence of marijuana.

The record reveals that Hewitt, while incarcerated at the Maryland House of Correction, was charged with the violation of several institutional rules by the following report:

[Hewitt was] [b]rought to the hospital approximately 8:25 p.m. to be processed for suspicion of consumption of [a controlled dangerous substance]. Upon arrival, inmate’s speech slurred, gait unsteady and pupils constricted. While obtaining urine for narc. screening, inmate stated “I don’t know why you are getting urine from me, I am high from smoking marijuana and it surely will not show up in my urine, ha ha.”
Inmate was advised that the above statement was sufficient for disciplinary action and he further stated “I will say I made the above statement because I was under heavy interrogation.”

The report was signed by R. Slaysman, a correctional officer, and L. Stewart, a correctional officer and licensed practical nurse. An Adjustment Team was convened to hear the charges. The complaining officers were not called to testify at this hearing by either Hewitt or the institution. Hewitt denied that he had admitted smoking marijuana and instead contended that he only inquired whether rñarijuana would show up in a drug test.

The Adjustment Team, in a two to one decision, found Hewitt guilty of violating Rule 7, which in relevant part prohibits: “Being intoxicated (by homemade intoxicants or commercial intoxicants or being under the influence of any kind of drug, barbituate, and/or amphetamine not prescribed ...).” Hewitt was sentenced to sixty days in isolated confinement.

Pursuant to the procedures set out in Md. Ann. Code, Art. 41, § 204F (d), Hewitt filed a complaint with the Inmate Grievance Commission (the Commission) on the ground that there was insufficient evidence to support his conviction.

At a hearing before the Commission, a member of the Adjustment Team testified that their decision was based upon the report of Officers Stewart and Slaysman. Officer Stewart’s testimony at this hearing was consistent with the report submitted to the Adjustment Team. In a written opinion, the Commission concluded that there was insufficient evidence to justify the administrative conviction and reversed the decision of the Adjustment Team for the following reasons:

The team did not call the accusing officer to qualify his adjustment report and to permit Mr. Hewitt to cross-examine his accuser. The officer’s adjustment report was simply accepted by the team as factual, including the officer’s impression that Mr. Hewitt was intoxicated. No officer saw this inmate smoking marijuana and the inmate stated that although he admitted smoking marijuana, he did so only because, after being so accused by Mr. Stewart, he was subjected to “heavy interrogation.”
Marijuana, as physical evidence, was never found on the person of inmate Hewitt and, of course, none was presented at the adjustment hearing.
It is to be noted that two other charges were placed against Mr. Hewitt; Rule 8 — possession of narcotics, barbituates, etc., and Rule 18 — passing or receiving contraband. He was found not guilty on these two counts.
The statement by Mr. Stewart that because Mr. Hewitt was observed to be of unsteady gait cannot be accepted by the Commission as sufficient proof that he was, in fact, “high” and under the influence of a CDS, suspected to be marijuana.
The institution stated that a urine test is given in all such cases, primarily to rule out the presence of drugs other than marijuana. It is recognized that marijuana will not show up in a urinalysis and, in this instance, the laboratory analysis was negative for all drugs identified and included in the Drug Abuse Screen.
As to the statement by Mr. Hewitt that, following “heavy interrogation”, he admitted smoking marijuana, the Commission finds it not unreasonable to accept the inference that the accused was expostulating under duress. He at no time pled guilty to the charges.

In an Order dated March 1, 1976, the Secretary reversed the Commission’s decision and reinstated the Adjustment Team’s conviction, stating:

The conclusions of the Inmate Grievance Commission were based on the fact that there was insufficient evidence before the Adjustment Team to justify its verdict. This conclusion was based in part on the fact that the Adjustment Team did not call the accusing officer to testify (although his report was read at the hearing) and that Mr. Hewitt was thereby denied the opportunity to cross-examine his accuser. The conclusion reached by the Inmate Grievance Commission is contrary to the doctrine layed down by the Supreme Court in Wolff vs. McDonnell 94 S. Ct. 2963 where the Court on page 2980 stated that prison officials must have the necessary discretion in calling witnesses and that confrontation and cross-examination, while essential in criminal trials, such due process requirements are not required in prison disciplinary hearings. The court specifically said “We think that the constitution should not be read to impose the procedure at the present time and that adequate bases for decision in prison disciplinary cases can be arrived at without cross-examination.

The narrow issue we are asked to determine is whether there was substantial evidence in “the record of the proceedings before the Commission and the Secretary’s order, if any, pursuant to such proceedings” Md. Ann. Code Art. 41, § 204F(1), to support Hewitt’s conviction of violating Rule 7. The standard of judicial review of decisions of the Secretary in inmate grievance matters was comprehensively discussed by this Court in Bryant v. Department of Public Safety, 33 Md. App. 357 (1976). There we held the test to be applied is the substantial evidence test. See generally Snowden v. Mayor and City Council, 224 Md. 443, 445 (1961). Recently this Court, in considering the substantial evidence test and the scope of judicial review of administrative agencies’ decisions, stated:

A reviewing court may, and should, examine any inference, drawn by an agency, of the existence of a fact not shown by direct proof, to see if that inference reasonably follows from other facts which are shown by direct proof. If it does, even though the agency might reasonably have drawn a different inference, the court has no power to disagree with the fact so inferred.
A reviewing court may, and should, examine any conclusion reached by an agency, to see whether reasoning minds could reasonably reach that conclusion from facts in the record before the agency, by direct proof, or by permissible inference.
If the conclusion could be so reached, then it is based upon substantial evidence, and the court has no power to reject that conclusion.
A reviewing court may, and should, examine facts found by an agency, to see if there was evidence. to support each fact found. If there was evidence of the fact in the record before the agency, no matter how conflicting, or how questionable the credibility of the source of the evidence, the court has no power to substitute its assessment of credibility for that made by the agency, and by doing so, reject the fact.

Commissioner v. Cason, 34 Md. App. 487, 508 (1977).

Applying the above standards to the facts in this case, we conclude that the record before the Commission contains substantial evidence to support the Secretary’s order that Hewitt violated Rule 7.

Hewitt specifically contends that:

[bjecause the contradicting evidence in the Commission record directly and strongly refutes Officer Stewart’s report, the overwhelming conclusion is that the Secretary’s order was not based on the substantiality of all the evidence.

We find no such strong refutation of Officer Stewart’s report and testimony, nor contradictory evidence in the record. That no one saw Hewitt smoke marijuana; that none was found on his person; and that the urine test was negative is of no material significance in determining whether Hewitt was intoxicated. Similarly, the fact that Officer Stewart did not testify at the hearing before the Adjustment Team is irrelevant since he did testify and was cross-examined at the hearing before the Commission. Bryant, supra, at 370. Further the conclusion of the Commission that Hewitt’s unsteady gait was insufficient proof that he was in fact “high”, or under the influence of drugs, was not an assessment or impeachment of Officer Stewart’s testimony. It was merely a conclusion of the Commission that an unsteady gait, without more, was insufficient proof that Hewitt was “high”. We note that the Commission completely ignored the fact that Officer Stewart testified that his opinion was based not only on Hewitt’s unsteady gait, but also on his slurred speech, constricted pupils and Hewitt’s admission that he was “high”.

Finally, the Commission’s conclusion that Hewitt’s admission of smoking marijuana was made under duress, as a result of heavy interrogation, finds no support in the record. Hewitt never testified that his admission was made under duress. The only reference to heavy interrogation is in the report of Officers Slaysman and Stewart in which they indicated that when Hewitt was advised that his admission of smoking marijuana was sufficient for disciplinary action, he stated, “I will say I made the above statement because I was under heavy interrogation.”

The role of the Secretary is not limited to adopting the conclusions of the Commission. He is permitted to draw his own inferences and conclusions from the facts in the record. Accordingly, we conclude that the Secretary’s order had a sound factual basis and was based upon substantial evidence.

Judgment affirmed.

Costs to be paid by appellant. Mandate to issue forthwith.

      . The Adjustment Team is a three person board constituted pursuant to Adjustment Procedures adopted by the Division of Correction.