text:
    CHARLES B. ANDERSON, JR. v. HARFORD COUNTY, MARYLAND
    [No. 107,
    September Term, 1981.]

      Decided October 9, 1981.

    The cause was argued before Gilbert, C. J., and Lowe and Weant, JJ.

      William D. Hooper, Jr., with whom were Lentz, Hooper, Jacobs & Blevins, P.A. on the brief, for appellant.

      Robert L. Miller, with whom were Gregory A. Rapisarda and Charles H. Boarman on the brief, for appellee.
   Gilbert, C. J.,

delivered the opinion of the Court.

Charles B. Anderson, Jr., served as County Executive of Harford County, Maryland, at and for an annual salary of $27,500. After his term as County Executive, he was indicted by the Grand Jury of Harford County on several charges of misconduct in office and violation of the Harford County Charter. He was not convicted on any of them. The cost of defending himself against those charges was $57,003.20, a sum in excess of twice the annual salary of the County Executive. Understandably, Mr. Anderson seeks reimbursement for the money he has or will expend to satisfy those costs.

Anderson asserts that the successful defense was to the benefit of the County, and "was in furtherance of his duties and responsibilities to ... Harford County... .” Demand was made upon the County by Anderson in the amount of $57,003.20. When neither that sum nor any part of it was paid by the County, Anderson filed suit in the Circuit Court for Harford County. The County, in turn, responded with a motion raising preliminary objection, Md. Rule 323, in which it asserted the defense of governmental immunity.

The circuit court (Higinbothom, J.) dismissed Anderson’s declaration and entered judgment for costs against him. Anderson has now journeyed to this Court where he posits three issues to us, namely:

"I. [T]he trial court erred when it held that the Charter for Harford County, providing for the payment of 'subsistence’, did not include the reimbursement of legal expenses incurred by an elected official.
II. [T]he trial court erred when it held that the Corporations and Associations Article ... [of the Code] did not apply to municipal corporations or charter counties.
III. [T]he trial court erred in holding that the provisions of the Charter for Harford County and . . . [Corp. Art.] did not expressly or impliedly waive the defense of sovereign immunity.”

We disagree with the appellant and shall affirm the action taken by Judge Higinbothom. We now explain why we so do.

I.

The Harford County Charter provides in pertinent part:

"Sec. 306. Compensation of the county executive.
The county executive shall receive compensation of not less than twenty-seven thousand five hundred dollars per annum. His compensation may be changed by law passed by an affirmative vote of at least five members of the council. Any increase or decrease in compensation which becomes law during one term of office shall not become effective before the next term.
Sec. 805. Additional Compensation.
No officer or employee of the county, elected or appointed, whose compensation is fixed, in whole or in part, by this Charter, the laws of the county or its personnel regulations, shall be entitled to any other compensation from the county for performance of public duties, except expenses for travel and subsistence incident to the performance of his official duties as prescribed by law.”

Anderson zeroes in on the words "subsistence incident to the performance of his official duties as prescribed by law,” and then divorces them from the rest of the phrase that appears in the text. The result thus achieved by Anderson is that the County is liable to him for "subsistence incident” to his duties as County Executive. He then carries his thought one more step and concludes that the offenses he was charged with having committed occurred in the course of his official duties. Consequently, the expenses incurred by him in defending himself against those charges are part of the "subsistence” to which he is entitled under the Charter, § 805.

We read the Charter to say something entirely different. The Charter is read and construed in the same manner as a statute. Its words are given their natural meaning and are not to be convoluted to reach a particularly desired result. Furthermore, the various sections of the Charter, as is the case with statutes, are to be brought into full accord if possible. May v. Warnick, 227 Md. 77, 175 A.2d 413 (1961); Demory Brothers v. Board of Public Works, 20 Md. App. 467, 316 A.2d 529, aff'd, 273 Md. 320, 329 A.2d 674 (1974).

Section 805 of the Charter quite clearly states that the "elected [County Executive], whose compensation is fixed in whole or in part, by [§ 306 of] this Charter ... [and County Code § 2-36] shall be entitled to . . . [no] other compensation from the County ... except expenses for travel and subsistence incident to the performance of his official duties....”

We hold that the phrase, "except expenses for travel and subsistence” means that whenever a County officer or employee is required by his or her official duties to travel and to incur transportation expenses, as well as expenses for subsistence, that is, lodging and meals, he or she is entitled to reimbursement by the County. The meaning of "subsistence,” when read in connection with travel, is crystal clear. Harford County is not obligated by its Charter to reimburse Anderson for his legal expenses.

II.

The Maryland Corporations and Associations Article Code Annotated is not applicable to chartered counties. The authority for the operation of the County is the Charter, the "Express Powers Act” in Md. Ann. Code art. 25A, § 5, and the local code provisions enacted by the chartered county, if the latter are not in conflict with the State Constitution or the Public General Laws. Constitution, Art. XIA, § 1; Turf Valley Associates v. Zoning Board, 262 Md. 632, 278 A.2d 574 (1971).

Once the people of a county, by a majority of the votes cast, adopt a charter form of local government, the General Assembly must provide an express grant of powers to that county. Constitution Art. XIA, § 2; Bradshaw v. Prince George’s County, 284 Md. 294, 396 A.2d 255 (1979); Anne Arundel County v. Bowen, 258 Md. 713, 267 A.2d 168 (1970). To fulfill its obligation relative to the express powers, the Legislature has adopted what has been styled the "Express Powers Act.” Md. Ann. Code art. 25A, § 5. The powers of the chartered county are enumerated in Art. 25A, § 5, and, although the General Assembly has reserved unto itself the right to extend, modify or diminish those powers, it may not do so except by a Public General Law enacted inter alia for that purpose.

Nowhere in the "Express Powers Act” is there expressly or implicitly any indication that the Maryland Code concerned with corporations is in anywise a part of those powers.

It appears to us that because the Corporations and Associations Article speaks in terms of a "charter” that appellant may be misinterpreting "charter” as used in that Article with "charter” as used in reference to charter counties. The two, while bearing the same name, "charter,” are unrelated.

The Corporations and Associations Article is basically concerned with commercial, professional, eleemosynary, and social corporate entities, not with county governments. The attempt by appellant to transmogrify the county charter by interlacing with it the Corporations and Associations Article is spurious.

III.

In light of our disposition on the merits, it is unnecessary for us to consider whether the defense of governmental immunity was available to the County in the instant case.

Judgment affirmed.

Costs to be paid by appellant.

      . The Charter was adopted by the voters of Harford County at the General Election held on November 7, 1972. The Charter became effective December 7, 1972.

      . The Harford County Code also provides:

        "Sec. 2-36. Same — Compensation.

      The county executive shall receive compensation of not less than twenty-seven thousand five hundred dollars per annum. His compensation may be changed by law passed by an affirmative vote of at least five members of the council. Any increase or decease in compensation which becomes law during one term of office shall not become effective before the next term. (Bill No. 76-106, § 1.)”


source: Caselaw Access Project

author: Wilner, J.,

license: Public Domain

text:
    GAIL H. TERRY v. DENNIS H. TERRY
    [No. 129,
    September Term, 1981.]

      Decided October 13, 1981.

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

      Peter J. Messitte, with whom were Messitte & Rosenberg, P.A. on the brief, for appellant.

      Nelson M. Oneglia, with whom were Horowitz, Oneglia, Goldstein, Foran & Parker, P.A. on the brief, for appellee.
   Wilner, J.,

delivered the opinion of the Court.

Appellant complains here of an order of the Circuit Court for Montgomery County that, to her dismay, reduced the amount of alimony and child support that she was theretofore entitled to receive.

The circumstances were as follows.

The parties were married in 1961. They lived together until May, 1974, producing in the interim two children — Susan, born in February, 1967, and Gregory, born in November, 1969. In September, 1974, they entered into a property settlement agreement which, among other things, provided for appellant to have custody of the two children, required appellee to pay alimony and child support, and directed him to provide certain medical and life insurance coverage for the children. The alimony was to be at the rate of $650 per month for the first six months, $550 per month for the following six months, and thereafter, until appellant’s death or remarriage, $425 per month. Child support was set at $200 a month per child through August 31, 1975, and thereafter $250 a month, subject to biannual escalations in proportion to increases in the Bureau of Labor Statistics Consumer Price Index.

On October 24, 1975, the parties entered into an "Agreement of Modification,” under which appellee assumed the additional obligation of paying all necessary dental bills for the children, but which provided that "[i]n every other respect, the Agreement of the parties dated September 25th, 1974, is hereby continued without alteration as to each and every paragraph and tenet contained therein.”

On January 28, 1976, the Circuit Court for Prince George’s County entered a decree of divorce. The decree approved and incorporated by reference all the terms in both the initial property settlement agreement and the October, 1975 agreement of modification.

All went reasonably well until February, 1979. Appellee, it appears, was about to lose his $36,000 a year-plus-company-car job, and thus decided, unilaterally, to reduce his alimony and child support payments by $400 a month. At the time, his alimony was to be $425 a month and his child support, by reason of index escalations, was set at $285 per month per child.

Concerned about her loss of support and complaining further that appellee was about to allow the required medical and life insurance coverage to terminate and that he was refusing to pay for Susan’s orthodontic therapy, appellant filed in the Circuit Court for Montgomery County a petition (1) to specifically enforce the terms of the agreements, as incorporated in the divorce decree, (2) for a judgment equal to all sums due under the decree (support arrearages, amounts necessary to replace the insurance coverage, and the cost of the orthodontic treatment), (3) to find appellee in contempt, and (4) for miscellaneous relief.

Appellee responded with a cross-petition contending that he was then unemployed, that appellant (who had been unemployed at the time of divorce) had become employed full time, and that the combination of those events constituted a change of circumstances. He asked that (1) his child support be reduced to $200 a month per child and (2) alimony be reduced or eliminated, or, in the alternative, suspended until he regained his former earnings level.

On May 15, 1979, while this bill and cross-bill were pending, the parties entered into a "Stipulation.” This written document, signed by the parties, acknowledged the 1974 agreement, the 1975 modification, the divorce decree, and the pending litigation, and stated that "[i]n the interest of amicably working out the differences between the parties as to the application of the aforesaid Agreements and Decree, the parties hereby agree to the following terms, pending further hearing in this cause.” (Emphasis supplied.)

The stipulation then recited that (1) appellee agreed to comply with the agreements and decree "in all respects, except that his obligation to pay alimony thereunder is hereby reduced to $200.00 per month. Said payments of alimony shall remain fixed at $200.00 per month, pending further hearing in the cause.” (emphasis supplied); (2) appellee and appellant would exchange notarized statements pertaining to their respective employments, income, and insurance policies; and (3) appellee consented to a judgment of $1,200 for current alimony arrearage, to be paid within three weeks.

The next day — May 16, 1979 — the court entered a "consent order” ratifying, confirming, and incorporating "the terms of the attached Stipulation.”

On May 29, 1980, appellee inaugurated the instant controversy with a petition, in the same proceeding, to reduce the amount of child support and for such other and further relief as the court may find just and proper. Though claiming reemployment and an income of $37,000 a year, he averred an inability to continue the child support payments at the decretal level. He made no complaint about the alimony and did not ask for any modification of it. Appellant responded, in part, with a counter-petition to increase the amount of child support and "restore or increase, according to evidence to be presented to the Court, the amount of alimony payable to her. .. .” (Emphasis supplied.) In support of her request for a restoration of or increase in alimony, she acknowledged that the earlier reduction via the consent order was "pending further hearing in the cause,” and alleged that by reason of appellee’s improved financial status and the insufficiency of her income, she was "entitled to a restoration of or increase in her alimony payments.”

The show cause orders issued by the court pursuant to these pleadings reflected the specific relief prayed. Thus, the order issued pursuant to appellee’s petition directed appellant to show cause "why the child support payments in the above captioned matter should not be reduced,” (emphasis supplied) and the order attendant to appellant’s counter-petition directed appellee to show cause why child support and alimony payments should not be increased.

In accordance with Sixth Circuit Rule S 74, the entire matter was referred to a domestic relations master. After receiving and considering evidence of the parties’ respective financial circumstances, the master concluded that (1) although not prayed in the petition or recited in the court’s ensuing show cause order, reduction in alimony was an issue in the case, as was a modification of child support, and (2) based on the evidence, appellant’s alimony ought to be reduced to $66.36 a month and appellee’s contribution to child support ought to be reduced to $325 per month per child. Appellant excepted to both recommendations, but, after a hearing, the court overruled the exceptions. It is from that order overruling the exceptions that this appeal is taken.

The following questions are presented:

"I. Did the Chancellor err in permitting the Master to consider a reduction of alimony, where the only language in the Show Cause Order relevant to alimony directed the Appellee to show cause why Appellant’s alimony should not be 'increased’?
II. Did the Master and Chancellor err in finding that the Stipulation of the parties entered into on May 15, 1979 had the effect of modifying the Agreement of the parties dated September 25,1974, so as to convert non-technical alimony into modifiable, technical alimony?
III. Assuming the Stipulation of the parties of May 15, 1979, did modify the earlier agreement of the parties, such that the Court had power to modify alimony, did the Master and Chancellor err in not using May 15, 1979, as the base date for determining whether certain circumstances had changed since that time, for purposes of modifying alimony and child support?
IV. Should Appellant be awarded counsel fees for the prosecution of this appeal?”

Though appellant states the proposition somewhat imperfectly, we think there is merit to her first complaint. We think that, in light of the pleadings, it was inappropriate for the master to recommend and for the court to order a reduction in appellant’s alimony. As a result of that conclusion, it becomes unnecessary for us to address her second question. With respect to the other two issues, we find no error in the reduction of child support and conclude, in light of her resources, as disclosed in the record, that appellant is not entitled to an additional award of counsel fees.

(1) Decrease in Alimony

As we have noted, appellee made no request in his petition for a reduction in alimony. Nor did he complain, in any of his averments, that the amount of alimony payable under the consent order was excessive, that appellant was not in need of it, or that he was unable to afford to pay it. His sole complaint concerned the amount of child support which, of course, had increased significantly since the 1974 agreement. That, and that alone, is what the court directed appellant to address.

The first mention of a reduction in alimony was in a memorandum of law filed by appellee on October 22,1980 — the very day of the master’s hearing. The principal legal issue then (and now) was whether the amount of spousal support was subject to modification by the court. Appellant’s position (notwithstanding her alternative prayers for restoration or increase) was that the $425 provided for in the original agreement and decree amounted to contractual support rather than modifiable alimony because there was no provision for its termination upon appellee’s death (see Simpson v. Simpson, 18 Md. App. 626 (1973) and cases cited therein), and that because the decree was entered prior to April 13, 1976, the provisions of Acts of 1976, ch. 170 were not applicable. Thus, she maintained that the court’s only authority was to restore the non-modifiable amount of $425 a month — an amount that she had voluntarily (and temporarily) consented to be reduced during the period of appellee’s unemployment.

Appellee, in his memorandum, conceded that, so long as the support provisions contained in the 1974 agreement remained intact, they were not subject to the 1976 Act and were thus not subject to modification by the court He contended, however, that the 1979 stipulation amounted to a novation of sorts — a permissible modification by the parties — and that served to bring the provisions within the Act and subject it to further court modification. It was in that context that, for the first time, he asked "that the alimony in this case be either reduced or terminated.” Appellant objected, both at the beginning and at the conclusion of the master’s hearing, to any consideration being given to a decrease in alimony on the ground that the matter had not been raised in the pleadings.

Appellee argued below and argues to us that a reduction in alimony was permissible under his general prayer for "other and further” relief, citing Simpson.

Use of a general prayer for relief has a long tradition in equity pleading and practice. At least as early as Gibson v. McCormick, 10 G.&J. 65, 108 (1838), the Court of Appeals made clear that "[njothing is better settled than that if a complainant cannot obtain the specific relief for which he prays, he may obtain any relief consistent therewith, warranted by the allegations in his bill, provided it contains a prayer for general relief.” (Emphasis supplied). See also Bently v. Cowman, 6 G.&J. 152, 155 (1834), and Chalmers v. Chambers, 6 H.&J. 29, 30 (1823). The limitation, or caveat, expressed in Gibson was expressed as well, but somewhat differently, in Chalmers. There, the Court stated, at 30, that "[a]s to the relief to be given, under a general prayer, the rule is, that it must be agreeable to the case made by the bill, and not different from it, or inconsistent with it.”

Some of these thoughts were distilled by Chancellor Johnson in Crain v. Barnes, 1 Md.Ch. 151 (1947), aff'd, 8 Gill 391 (1849). The complainant there, as next friend of a minor, sued to recover a legacy due the minor. The bill of complaint contained no special prayer for relief but asked only for such relief as equity may require, and the absence of a special prayer formed one of the defenses raised to the bill. To this, the Chancellor responded:

"The object of all pleading is, to give to parties notice of the ground of claim, and defence, or upon which demands are asserted or resisted, and when this is done, the object of the rules of pleading is attained. Now, there can be no doubt that the defendants in this case had notice by the bill, of the relief which was sought against them. They know that the object of the complainants was to make them pay this legacy; and they defend themselves against the demand, by stating, in their answer, that it had been wholly or partially paid.
They cannot, therefore, complain that they have been taken by surprise, when the relief sought under the general prayer of this bill in [sic, is] the identical relief against which the answer sets up the defence.” Id. at 156.

Referring then to the earlier cases of Chalmers, Bentley, and Gibson, the Chancellor concluded that "the extent and character of the relief which may be granted under the general prayer, depends upon the facts charged in the bill,” and that if a complainant is for some reason not entitled to specific relief prayed for, he may obtain under a general prayer "any relief consistent therewith, warranted by the allegations of his bill....” Crain, supra, 1 Md.Ch. at 156-57.

These early cases, though providing for a considerable amount of discretion and flexibility under a general prayer, do place some limits on the court’s authority. The relief given under such a prayer must be "warranted by the bill”; the bill, in other words, must contain such averments as fairly to apprise the respondent that the particular form of relief fashioned by the court is within the range of reasonable possibility if the complainant proves those averments.

These concepts, though occasionally expressed in different ways, have remained firm in the law. In McKeever v. Washington Heights Realty Corp., 183 Md. 216, 224 (1944), for example, the Court held that relief under a general prayer must be suitable to the peculiar nature of the case: "While a complainant is not entitled to relief beyond the general scope and object of the bill or inconsistent with it, the court is left free to adopt any mode by which it can most readily and effectually administer that relief which the equity of the case may require.” See also Chesapeake Homes, Inc. v. McGrath, 249 Md. 480 (1968); Boehm v. Boehm, 182 Md. 254 (1943); Miller, Equity Procedure, § 100 (1897); Ginsberg, Equity Jurisprudence and Procedure, 267. The latent, but omnipresent, limitation is the general object of all pleading "to give the parties notice of the ground of claim. . ." See Fisher v. Parr, 92 Md. 245, 268 (1901); Findlay v. The Baltimore Trust and Guarantee Co., 97 Md. 716, 722 (1903); Harris v. Harris, 213 Md. 592, 597-98 (1957); see also Maryland Rule 370a.2: "A bill or petition shall contain a concise statement of the facts upon which the plaintiff seeks relief, and such averments as may be necessary to entitle him to the relief sought. .. .” (Emphasis supplied.)

Relief under a general prayer has, of course, been granted in domestic relations cases, but never, to our knowledge, in the manner done here. In Harris v. Harris, supra, the complainant filed a petition to hold her ex-husband in contempt of court for failing to pay alimony awarded under a Nevada divorce decree. Her bill also contained a general prayer for relief. The case arose before the decision in McCabe v. McCabe, 210 Md. 308 (1956), and the chancellor initially concluded that he had no authority to enforce a Nevada alimony decree by means of imprisonment for contempt. He did, however, under the general prayer, order the husband to pay the alimony. Against the ex-husband’s challenge that such relief was inappropriate because it was not specifically requested, the Court of Appeals, citing Crain v. Barnes, supra, held that "[although the specific relief sought here was punishment by way of imprisonment, the primary purpose of the bill was to obtain support for the wife.” Thus, it said, the respondent "had notice of the claim of the complainant,” and the chancellor "had jurisdiction to order the payment of the alimony instead of punishment for contempt.” Harris, supra, 213 Md. at 599.

In Simpson v. Simpson, supra, the case most relied upon by appellee and the chancellor — a husband filed a bill seeking to "terminate” alimony, and for other general relief. The chancellor dismissed the bill, finding that the support in question was contractual in nature and not subject to modification. We concluded that he was correct — that he "properly declined to terminate or modify the payments.” (Emphasis supplied.) Id. at 631. In so stating, Judge Powers, writing for the Court, added this footnote to the words "or modify”:

"Although the petition specially prayed only that the payments be terminated, we' think the prayer for other and further relief was a sufficient basis to permit modification of the payments, were it otherwise appropriate to do so.” Id.

It is important to put that footnote — which is all that appellee points to in Simpson — in its proper perspective. It is not a holding of this Court. It is perhaps the clearest example of obiter dicta, having no precedential value whatever. We decided in Simpson, as a matter of law, that neither termination nor modification was permissible, and thus it would make no difference what might otherwise be appropriate under the general prayer. Moreover, even if the footnote is a correct expression of the law, it would not necessarily justify the action taken here. It is implicit from the context of the language that, in speaking of "modification of the payments,” we had in mind a reduction, not an increase. A reduction in amount would not be inconsistent with a bill to terminate the alimony; an increase, on the other hand, would be flatly inconsistent with, and thus wholly unwarranted by, a bill to terminate the payments.

That, of course, is precisely what occurred here. Alimony was in issue only in the context of appellant’s petition to restore it to the pre-1979 level, or to increase it beyond that. As we observed earlier, appellee never contended in his petition that the $200 level was inappropriate or that he could not afford to pay it. His only complaint, as noted, concerned child support. Unlike Harris and the other cases sustaining relief granted under a general prayer, appellant went into the hearing entirely without warning that the current level of her alimony was in jeopardy of being reduced. Neither appellee’s petition nor the show cause order issued pursuant to it fairly apprised her of such a possibility. Appellee could, of course, have amended his petition to challenge the alimony — he had ample time to do so — but he chose not to do that.

In that circumstance, we think that the master and the chancellor erred in considering and ordering a reduction in alimony. It may well have been justified by the evidence (an issue we need not decide) but it clearly was not "warranted by the allegations in [appellee’s] bill”; it was not "agreeable to the case made by the bill.”

(2) Other Issues

We find it unnecessary to recount the evidence of the parties’ financial circumstances relied upon in reducing the amount of child support or with respect to appellant’s request for an award of additional counsel fees. Suffice to say that we have reviewed the record and find no clear error or abuse of discretion as to the former, and no occasion to grant the latter.

Judgment as to child support affirmed; judgment as to alimony reversed; costs to be divided equally between the parties.

      . The complaint was filed in Montgomery County because appellee was then a resident of that county. Appellant, in the meanwhile, had moved to Virginia.

      . The record indicates that child support payments had risen from the $500 per month provided for in the agreement (after August 31, 1975) to $686 per month.

      . That Act amended Md. Ann. Code art. 16, § 28 (1957,1973 Repl. Vol., 1975 Supp.), to provide that any provision in an agreement between spouses "in respect to alimony, support and maintenance of the husband or wife is subject to modification by the court to the extent the court deems just and proper regardless of the manner in which fthose provisionsj are expressed or stated unless there is an express waiver of alimony, support and maintenance by the husband or wife or unless Lthe agreement] specifically statels] that [those provisions] are not subject to any court modification.” The Act further provided, however, that it would have no effect upon any settlement or agreement occurring prior to its effective date, which was April 13, 1976.

      . Compare LaChance v. LaChance, 28 Md.App. 571 (1975), where we found that a bill seeking alimony would, under a general prayer, permit the court to award support and maintenance provided for in a separation agreement in lieu of "technical alimony.”


author: Thompson, J.,

text:
    RALPH MICHAEL BELLAMY v. STATE OF MARYLAND
    [No. 140,
    September Term, 1981.]

      Decided October 13, 1981.

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

      Martha Weisheit, Assistant Public Defender, with whom was Alan H. Murrell, Public Defender, on the brief, for appellant.

      Maureen O’Ferrall, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, and Stephen J. Braun, State’s Attorney for Charles County, on the brief, for appellee.
   Thompson, J.,

delivered the opinion of the Court.

Ralph Michael Bellamy, the appellant, was tried before a jury in the Circuit Court for Charles County and convicted of false imprisonment, robbery with a deadly weapon, carrying a handgun, and using a handgun in the commission of a felony.

By this appeal the appellant presents six questions:

1. Whether the trial judge erred in refusing to instruct the jury that it must find that appellant’s confession was voluntary before considering it with the other evidence.
2. Whether the trial judge properly denied appellant’s motion to suppress his confession.
3. Whether the charges against appellant should have been dismissed for noncompliance with the time limitations of former Art. 59, § 26.
4. Whether the trial judge unconstitutionally compelled the appellant to stand trial in prison garb.
5. Whether there was improper impeachment by the prosecutor.
6. Whether the evidence was sufficient to sustain appellant’s convictions.

Facts

Lisa Marie Nichols testified that on October 4, 1979, the appellant, her boyfriend, had picked her up in a cab driven by George Sibley. Appellant directed Sibley to head toward the Waldorf area. After driving for a period of time, appellant told Sibley to drive onto a small dirt road off the main route. Nichols testified that the appellant then pulled out a gun and stated to the driver, "By now you know this is a robbery.” Sibley responded, "No, I didn’t.” According to Nichols, appellant then ordered Sibley to get out of the cab and handed the gun to her. Sibley was then tied to a telephone pole with appellant’s belt. Upon leaving the area in the cab, appellant and Nichols found a small box of money under the seat containing approximately $20.00 The two then headed toward St. Charles where they stopped to get something to eat and then "drove around” for awhile. At some point they noticed a state trooper following them. They drove into a school yard where they parked the cab and ran. Several days later they left for Florida.

State Trooper Charles Williams testified that on October 4,1979, he had been advised to be on the lookout for a black and yellow cab. He spotted a vehicle meeting such description and followed it until it turned into the parking lot of a school. Trooper Williams blocked the entrance and called for backup units. When the other units arrived the cab was approached only to be found empty of occupants.

The appellant took the stand in his own defense and testified that in September 1979, he and Lisa Nichols had made plans to elope and go to Florida. He further testified that in order to carry out such plan he entered into an agreement with George Sibley whereby Sibley would pretend that he had been robbed so that appellant and Nichols might procure his cab. Appellant testified that Nichols was unaware of his agreement with Sibley. After the incident appellant and Nichols left for Florida where they were subsequently apprehended and returned to Maryland by Trooper Fuller and Investigator Hindle. Two days following his return, the appellant gave a confession, the voluntariness of which is now at issue. At the suppression hearing Officer Hindle testified as to the discussion he had with the appellant the day prior to the appellant’s having given a statement. He stated, in part:

"Q. . .. Did anybody make any promises or offers to him?
A. No, but he made a couple of offers.
Q. What kind of offers did he make?
A. He said he would tell us everything if we would get his girlfriend off. He didn’t want his girlfriend in any trouble.
Q. What did you tell him about that?
A. I told him it wasn’t up to me, it was up to the State’s Attorney.”

On cross-examination Officer Hindle responded as follows:

"Q. When he asked you or told you that he would tell you everything if his girlfriend got off, indicating to him that you may be instrumental in that type of —
A. Well, I said I will see what I can do. I will talk to the State’s Attorney. I can’t do anything but I will talk to the State’s Attorney. (Emphasis added).
Q. You indicated to him that you would try the State’s Attorney?
A. I would relay the information, to that effect.
Q. Did you indicate to him that it might be better for him if a statement was made or if he —
A. No. Statement was made before I got a chance to ask questions.
Q. Did the question — Where did the question of your talking to the State’s Attorney and — Wfaat did that come to initially?
A. Wfiiat do you mean by that?
Q. At what time or where?
* * *
A. Oh, that happened at the Sheriffs Department.
Q. That happened at the Sheriffs Department?
A. He started talking in Florida. He said I am going to talk, tell the whole story,
He was saying stuff. In other words, it was a small car. He was saying statements to her, I will get you off, I will take the rap, you know, statements like that.”

Trooper Fuller also testified with respect to the circumstances of the appellant’s confession. He stated that upon returning the appellant to Maryland, the appellant was processed, taken before a commissioner, and interviewed the following day. Trooper Fuller testified that he read appellant his Miranda rights and that appellant indicated that he would give the statement. Fuller stated that no promises, threats or other means of coercion were used to induce the appellant to make a statement. The trial judge subsequently ruled that appellant’s confession was voluntary and admitted it into evidence.

I Jury Instructions

The appellant contends that the trial judge erred in his refusal to instruct the jury that they must find the appellant’s confession voluntary before considering it along with the other evidence. Maryland cases have held that a trial judge may justifiably refuse to give requested instructions where there is no evidence to support them. See, e.g., Mayne v. State, 45 Md. App. 483, 489, 414 A.2d 1 (1980), cert. denied, 101 U.S. 1347 (1981); Bolden v. State, 44 Md. App. 643, 653, 410 A.2d 1085, cert. denied, 287 Md. 750 (1980); Tripp v. State, 36 Md. App. 459, 463, 374 A.2d 384, cert. denied, 281 Md. 745 (1977). Such was the premise of the trial judge’s refusal to administer the proffered instructions in the instant case. He explained:

"The Court declines to give that instruction and the reason for it is this: The State has offered evidence to show that it was, the statement was freely and voluntarily given and that he was advised of the rights as designated in your requested instruction.
"In addition, the defendant took the stand and did not allege that any inducement, threat, promises or offers of reward, were made to him to make a statement and neither did he allege that he or dispute the testimony of the officer who stated that the warnings had been given prior to the statement had not been given to him. We feel there is no evidence to put that issue before the jury.”

We cannot agree with the trial judge’s finding that there was no evidence upon which to instruct the jury. The circumstances of the appellant’s rendition of his confession were, at the very least, questionable. Additionally, i^was.inaccurate for the trial judge to conclude that the appellant testified that no inducements were made to him. At trial the following dialogue occurred:

"Q. [Defense counsel]: Did any of the investigating Officers give you any indication that your giving a statement would help Lisa in any way?
A. [Appellant]: I was — It would help but it wouldn’t, they didn’t say it would be a guarantee.
Q. What was said, if you can recall?
A. Mr. Hindle said that he would talk to the State’s Attorney.
Q. And when was that statement made; do you recall?
A. That had been made the day we were brought back from Miami. From Florida.
Q. Do you recall where it was made?
A. The Sheriffs Department.
Q. Before your statement to Trooper Fuller?
A. Yes.”

On the basis of this testimony as well as the testimony of Officer Hindle quoted earlier, we conclude that the lower court committed reversible error in its failure to instruct the jury as to the voluntariness of the appellant’s confession.

We think the trial judge erred for another reason. It is axiomatic that for a confession to be admissible it must be demonstrated to be the free and voluntary act of the accused. Smith v. State, 189 Md. 596, 56 A.2d 818 (1948). The burden is upon the state to prove that the confession of the accused is a voluntary act and not the product of force or threat. Hillard v. State, 286 Md. 145, 151, 406 A.2d 415 (1979); State v. Kidd, 281 Md. 32, 37, 375 A.2d 1105, cert. denied, 434 U.S. 1002 (1977); Mercer v. State, 237 Md. 479, 483-84, 206 A.2d 797 (1965); Combs v. State, 237 Md. 428, 435, 206 A.2d 718 (1965); Abbott v. State, 231 Md. 462, 465, 190 A.2d 797 (1963).

Maryland has adhered to the two-tiered rule in establishing the voluntariness of confessions. Under this procedure the jury determines the issue of voluntariness after the judge had "fully and independently resolved the issue against the accused.” Jackson v. Denno, 378 U.S. 368, 378, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). This view was elucidated in Gill v. State, 265 Md. 350, 357-58, 289 A.2d 575 (1972), where the Court observed:

"The question of the voluntary nature of a confession is initially decided by the trial judge and involves a mixed question of law and fact. If the judge receives it in evidence, its admission then becomes prima facie proof that the statement was freely and voluntarily given. Once received, the evidence pertaining to the admissibility of the confession, which was first heard by the judge, is then submitted to the jury for its ultimate consideration.”

See also, Day v. State, 196 Md. 384, 399, 76 A.2d 729 (1950). More recently this Court in Darby v. State, 45 Md. App. 585, 594, 414 A.2d 248 (1980), expounded upon the function of the judge and jury in a determination of the voluntariness of a confession. Judge Wilner, speaking for the Court observed:

"It is clear ... that although the issue of voluntariness is submitted to both judge and jury, it is submitted to each for a different purpose. The judge determines voluntariness only for the purpose of deciding whether the confession is admissible as evidence — whether the jury can hear and consider it. The jury’s role is to determine what, if any, weight to give the confession. If, contrary to the judge, the jury concludes that the confession is involuntary, it nevertheless remains as evidence in the case — it is not withdrawn as an exhibit, the testimony regarding it is not expunged; the jury simply gives it no weight.”

As we have stated where there is an evidentiary dispute, the primary role of the judge is to rule upon the admissibility of evidence while the jury’s function is to determine the weight to give such evidence. This basic principle is, of course, applicable to the determination of the voluntariness of confessions. See, Linkins v. State, 202 Md. 212, 221, 96 A.2d 246 (1953); Barnhart v. State, 5 Md. App. 222, 246 A.2d 280 (1968). However, where the disputed evidence consists of a confession, there is an additional requirement that the jury disregard the confession if they do not find it voluntary beyond a reasonable doubt. Gill v. State, supra; Darby v. State, supra. Such factor lends a distinguishable characteristic to a jury evaluation of a confession as compared to other types of evidence. Thus, it is clear that general instructions as to the treatment and evaluation of evidence will not suffice with respect to the voluntariness of a confession.

In the present case after the trial judge concluded his instructions, counsel requested that the jury be additionally instructed that before they could consider the confession in arriving at their verdict they must find beyond a reasonable doubt that the confession was free and voluntary. As noted by the trial judge the requested instruction accurately reflects the status of the law with respect to jury determination of the voluntariness of a confession. However, the trial judge refused to give the instruction as the result of his belief in the absence of evidence to support the appellant’s contention.

In view of the importance and distinct nature of jury instructions relating to the voluntariness of a confession, we hold that whenever a confession is introduced into evidence and instructions as to its voluntariness are requested, the trial judge must administer the proffered instruction regardless of his personal belief in the absence of evidence necessary to support the contention of involuntariness. While no Maryland cases have explicitly cited this proposition, the history and spirit of the law in this area implicitly requires this holding. See generally, Dempsey v. State, 277 Md. 134, 355 A.2d 455 (1976); Gill v. State, supra; Linkins v. State, supra; Darby v. State, supra; Kidd v. State, supra; Haslup v. State, 30 Md. App. 230, 351 A.2d 181 (1976); Barnhart v. State, supra. We also note that the Maryland Criminal Jury Instructions § 2.25 indicates that this particular instruction or its equivalent should be given whenever it is requested and:

"Evidence has been introduced that the defendant confessed that he committed the crime with which he is charged.
* * *
"The burden is on the state to prove to you beyond a reasonable doubt that the alleged confession was freely and voluntarily made. You must weigh any circumstances of pressure against the power of resistance of the defendant. A voluntary confession is one which, under all of the circumstances, is the product of a free and unconstrained will which has not been overborne or compelled.
In considering whether the alleged confession was free and voluntary or not, you may consider the length of time, if any, the defendant was questioned, the physical and mental condition of the defendant, the time period which lapsed, if any, between the time of being advised of his rights, the other persons present, the time of making the alleged confession, and all other circumstances surrounding the making of the alleged confession, including the age, background, education, experience, and intelligence of the defendant.
The burden is on the state to prove to you beyond a reasonable doubt that the alleged confession was freely and voluntarily made. It must prove beyond a reasonable doubt that there were no threats or violence, or any direct or implied promises, however slight, or any improper influence which caused the defendant to make the alleged confession. A confession is not voluntary if induced by promises of leniency regarding the defendant or another.
If you find that the evidence shows beyond a reasonable doubt that the confession was freely and voluntarily made by the defendant, then you may consider it along with all other evidence presented in arriving at a verdict.”

Merely because the court has instructed the jury that the State must prove its case beyond a reasonable doubt does not inform the jury that a confession cannot be considered by them until they first find it was given freely and voluntarily.

II Voluntariness of Confession

The appellant contends that the trial court erred in refusing to suppress his confession from the evidence. This contention is primarily based on the agreement by Officer Hindle to speak to the State’s Attorney with respect to the desired release of the appellant’s girlfriend, Lisa Marie Nichols.

In the endeavor to identify with some degree of regularity the existence of a voluntary confession, numerous cases over the past 100 years have attempted to delineate and clarify the boundary between that of proper police conduct from that of improper police conduct. See, e.g., Edwards v. State, 194 Md. 387, 71 A.2d 487 (1950); Lubinski v. State, 180 Md. 1, 22 A.2d 455 (1941); Watts v. State, 99 Md. 30, 57 A. 542 (1904); Biscoe v. State, 67 Md. 6, 8 A. 571 (1887); Nicholson v. State, 38 Md. 140 (1873).

One of the most recent ventures into this area is Hillard v. State, supra. In Hillard, the investigating officer had told the defendant that if he were to render a confession he, meaning the officer, would "go to bat” for him. The trial judge concluded on the basis of the testimony and the record the following:

"So what this defendant was in fact told by Jones, and I find as a fact this is what he was told, that if you are telling me the truth about your involvement in the occurrence, I will go to bat for you to the extent that I will tell the State’s Attorney’s office and the Court, number one, that you have cooperated, number two, you have told me the truth, and number three, I believe you were not knowledgeable as far as the murder was concerned.” 286 Md. at 153.

Thus it was held that the promise to go to bat for the defendant was equivalent to a promise to speak to the State’s Attorney in the defendant’s behalf. This finding was adopted by the Court of Appeals. Id. at 153. The Court of Appeals ultimately concluded that the defendant’s statements had been induced by the promises of the investigating officer and were therefore inadmissible. In reaching this decision the Court averred:

"[U]nder Maryland criminal law, independent of any federal constitutional requirement, if an accused is told, or it is implied, that making an inculpatory statement will be to his advantage, in that he will be given help or some special consideration, and he makes remarks in reliance on that inducement, his declaration will be considered to have been involuntarily made and therefore inadmissible.” Id. at 153.

In the present case we have a direct representation to the effect that the officer would speak with the State’s Attorney on behalf of the appellant. This is precisely what the holding of Hillard sought to avoid. The Court of Appeals in rendering such decision clearly manifested its intent to deter the police from making any statements to a defendant which would plant the seed of the possibility of an advantage as a result of the rendition of a confession. For this Court to uphold the admissibility of a confession under the facts of the present case would be to disregard the affirmative mandate established in Hillard.

Although Hillard dealt with the inducement of an individual who desired to secure a benefit or advantage for himself, subsequent cases have demonstrated that the principle of Hillard is applicable to those situations where a defendant desires to protect one other than himself. In Stokes v. State, 289 Md. 155, 423 A.2d 552 (1980) the Court of Appeals established that an improper inducement may arise from a promise not to arrest or harm a near relative. In that case police officers executing a search warrant for controlled dangerous substances induced the defendant to recall the location of the drugs by telling him "that if he would produce the narcotics, his wife would not be arrested.” Id. at 157. Concluding that the evidence thus procured was inadmissible, the Court held:

"[W]e make clear here, even if beclouded until now, that the mandate of that case [Hillard v. State] encompasses the issue presented in this case and is dispositive of it. The rule in Hillard announces that a statement is rendered involuntary if it is induced by any official promise which redounds to the benefit or desire of the defendant. And this necessarily includes a promise not to harm (physically or emotionally) a near relative with whom the defendant naturally has a close bond of affection.” 289 Md. at 160.

In a footnote to this passage, the Court stated that "we have no occasion here to consider whether kinship is required, or the degree of closeness (kinship or otherwise) that a defendant must have to the affected third party, before the coercive effect of such inducements may be found to exist.” Id. at 160, n.2. Thus, while the Court of Appeals has not had the opportunity to rule on the applicability of the Hillard standard to a situation other than a near relative, such application under the present facts is both logical and appropriate.

There is little doubt that the relationship between the appellant and Lisa Nichols was sufficiently close as to furnish the motivation to secure the release of the other. Appellant had testified that the two were engaged and had made plans to elope to Florida. Moreover, the very willingness of the appellant to exchange a confession for the release of Ms. Nichols provides clear indicia that her welfare was crucial to him. Under these circumstances, Officer Hindle’s promise to "talk to the State’s Attorney” about securing her release clearly produced the expectation of benefit precluded under the principles of Hillard. There was no attempt by the state to meet its burden to show that the promise did not induce the confession. The state’s argument on appeal is, at best, based on an ambiguity. Thus, we hold that the defendant’s subsequent inculpatory statement had been improperly induced; as such, the trial judge committed reversible error in admitting such statement into evidence.

Ill Time Limitations on Insanity Report

On December 17, 1979, the trial judge, after a suggestion of incompetency and a plea of insanity was filed, ordered an examination by the Department of Mental Hygiene. The results of this evaluation were not received until February 19,1980. Thus there was a failure to comply with the 60 day requirement of the former Md. Ann. Code. art. 59, § 26 (a). The appellant contends that the lower court erred in its refusal to dismiss the charges- against the appellant on the basis of this non-compliance. We do not agree.

The former § 26 provided that:

"(a) Where a defendant interposed a plea in writing pursuant to § 25 of this article, the Department shall forward a report of its opinions relating to insanity at the time of commission of the alleged offense and to competency to stand trial to the court having jurisdiction over the defendant within 60 days after referral.”

We think that the legislature did not intend that criminal charges should be dismissed because the Department of Mental Hygiene was late in filing its report. This is evidenced by two factors. First, the former art. 59, § 26 provided no sanction for failure to comply with its provisions. See, Resetar v. State Board of Education, 284 Md. 537, 548, 399 A.2d 225, cert. denied, 444 U.S. 838 (1979); Maryland State Bar Association v. Frank, 272 Md. 528, 533, 325 A.2d 718 (1974); Pope v. Secretary of Personnel, 46 Md. App. 716, 717, 420 A.2d 1017 (1980). Second, it is significant to note that § 26 was amended, effective July 1,1980 so that it now provides that, "failure to comply with these time limitations shall not, of itself, result in dismissal of the charges.” See, art. 59, § 26 (1980 Cum. Supp.). The 1980 amendment clearly evidences legislative intent to alleviate any doubt as to whether the sanction of dismissal is applicable to § 26. Additionally, as subsection (a) was not changed with the enactment of the new statute, it clearly would not be logical to assume that dismissal was the proper sanction under the former statute. In addition, we would be most reluctant to impose the extreme penalty of dismissal of the charges, absent a clear mandate from the legislature.

IV Prison Garb

Inasmuch as we will reverse this case for the reasons set out above, there is no need for us to review this question because it seems unlikely that police officers will permit a new jury to view the accused either in prison garb or in handcuffs.

V Improper Impeachment

The appellant contends that he was prejudiced by (1) the line of questioning regarding the sentences received for two previous robbery convictions and (2) the questioning concerning the November 1973 classification as a defective delinquent.

There was no objection to the testimony concerning the robbery convictions; thus the question has not been preserved for review. Md. Rule 1085. With respect to the questioning regarding the defective delinquent adjudication, the state concedes that such question was improper and we agree.

VI Sufficiency of the Evidence

The appellant also contends that the evidence is insufficient to sustain his convictions. If we ignore both the appellant’s inadmissible written statement and his testimony at trial, the sufficiency of the remaining evidence is questionable. We must nevertheless grant a new trial in order to allow the state to submit any additional evidence it may have withheld relying on the correctness of the trial judge’s rulings. See, Hillard v. State, supra, 286 Md. at 159, n.5; State v. Boone, 284 Md. 1, 16-17, 393 A.2d 1361 (1978).

Judgments reversed and remanded for a new trial.

Costs not reallocated pursuant to Maryland Rule 1082 f.

      . See, Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).


author: Liss, J.,

text:
    CLARENCE MOUZONE v. STATE OF MARYLAND
    [No. 26,
    September Term, 1981.]

      Decided November 4, 1981.

      The cause was argued before Liss, MacDaniel and Weant, JJ.

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

      Ann E. Singleton, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, William A. Swisher, State’s Attorney for Baltimore City, and James Salkin, Assistant State’s Attorney for Baltimore City, on the brief, for appellee.
   Liss, J.,

delivered the opinion of the Court.

Clarence Mouzone, appellant, was charged with two counts of murder, two counts of use of a handgun in the commission of a felony, and two counts of carrying a handgun. The appellant was tried before a jury in the Criminal Court of Baltimore and convicted on all charges. A motion for a new trial was filed and denied. Appellant was thereupon sentenced to two consecutive life terms on the murder charges; two fifteen year sentences, to run concurrent with each other but consecutive to the life terms on the murder convictions; and two concurrent three year sentences on the carrying a handgun charges, which were to run concurrent with the other sentences. From these judgments, appellant noted this appeal. He raises eight issues to be determined by this Court:

I. Whether the trial court erred by admitting in evidence the alleged past recollection recorded statement of Anna Byrd which contradicted her testimony at trial?
II. Whether the trial court erred by admitting Anna Byrd’s prior recorded statement because it was involuntary and completely unreliable?
III. Whether the trial court erred by admitting in evidence Anna Byrd’s testimony about her prior testimony before the grand jury?
IV. Whether the trial court erred by allowing appellant to be questioned concerning his prior grand jury testimony?
V. Whether the trial court erred by denying appellant’s motion for judgments of acquittal because the evidence was insufficient?
VI. Whether the trial court erred by allowing the prosecutor to make prejudicial arguments to the jury?
VII. Whether the trial court erred by failing to make an effort to find Alan Glass who was named as the actual assailant at trial?
VIII. Whether appellant’s trial counsel adequately investigated appellant’s case and adequately represented appellant in this case?

I. and II.

At trial, officer Michael Sabo of the Baltimore City Police Department testified that at approximately 2:08 p.m., on August 31,1979, he responded to a call at the corner of North Avenue and North Charles Street. Upon arrival, he found the bodies of Bernard Banks and Carolyn Williams on the sidewalk. He also observed Anna Byrd on the sidewalk, apparently having an epileptic seizure. At trial, Anna Byrd was called to testify as a state’s witness. She testified that on the afternoon of the shooting she was in the vicinity of North Avenue and Charles Street with her friend, Carolyn Williams. She stated that she heard one shot and saw a man run from the scene. She thereupon suffered an epileptic seizure, was taken to the hospital, treated and released. She was then taken to police headquarters where she was questioned by Detective Danko of the Homicide Division. Detective Danko showed her an array of photographs, one of which she identified as appellant, the man she saw running from the scene. Anna Byrd signed her name on the back of the photograph she selected, dated it, and indicated the time of day on it. Officer Danko then took a statement from Mrs. Byrd which contained the following description of appellant: the man [she saw running from the scene] was a black malé, approximately 23 years old, dark brown skin complexion, 5'4" to 5'6", 135 pounds, slender build, wearing a maroon print shirt, maroon dress slacks and black shoes. His hair was cut short.

After Mrs. Byrd read the statement as written out by Detective Danko, she signed it as being true and correct. She also noted the date and time on the photograph as August 31, 1979 at 7:20 p.m.

At trial, Mrs. Byrd repudiated her selection of the appellant’s photograph as the picture of the man who was the "shooter” who ran from the scene. She insisted she had been mistaken and that the appellant was not the man. The state then offered the statement taken from her on the day of the shooting on the ground that although it was hearsay, it was admissible as past recollection recorded and therefore could come into evidence as one of the exceptions to the hearsay rule. Appellant objected and a hearing out of the presence of the jury was then conducted. At the conclusion of the hearing, the statement was admitted as admissible evidence on the basis of "past recollection recorded.” It is this ruling which appellant contends was the initial error in this case.

In considering the admissibility of evidence, the law vests great discretion in the trial judge. The exercise of that discretion will not be reversed absent a showing of clear abuse. See Tripp v. State, 36 Md. App. 459, 374 A.2d 384, cert. denied, 281 Md. 745 (1977).

Our careful examination of the transcript in this case convinces us that the trial judge arrived at the correct conclusion, but for the wrong reason, in allowing Mrs. Byrd’s statement to Detective Danko to be received into evidence. At the hearing, out of the presence of the jury, appellant’s counsel argued that the statement was not admissible under the exception to the hearsay rule known as "past recollection recorded.” The trial judge ruled that the statement was admissible on that basis.

We said in Ringgold v. State, 34 Md. App. 286, 367 A.2d 35 (1976):

[T]he past recollection recorded if it is to be admitted into evidence must be offered by the witness who is either devoid of a present recollection or possessed of an imperfect present recollection and desires to use a memorandum of a past recollection.
The witness must be able to assert now that the record correctly represented his knowledge and recollection at the time of making. 3 J. Wigmore, Evidence Sections 734, 746(2) (Chadbourne rev. 1970). [34 Md. App. at 293.]

The crucial facts which make a past recollection recorded admissible as an exception to the hearsay rule are that the record must be offered by the witness who has no recollection of the facts recorded or an imperfect present recollection and desires to use the memorandum of a past recollection. It is important to note that under these circumstances, once verification has been established, the memorandum becomes the present evidentiary statement of the witness and may be admitted into evidence either as a part of the witness’ direct testimony or his cross-examination.

In this case the statement sought to be admitted was not offered by Mrs. Byrd. She acknowledged remembering the circumstances surrounding the giving of the statement to Detective Danko, admitted signing it, and reluctantly conceded that she believed it to be true when she made the statement. However, she repudiated her identification of the appellant’s photograph and insisted that the appellant was not the man who ran past her on the day of the murders and was not the man whom she described to Detective Danko. In the light of this testimony it is clear to us ti.at the statement could not be admitted as evidence of "past recollection recorded.”

There is, however, another exception to the hearsay rule which makes the statement admissible. This exception is known as the "excited utterances” rule, also cited as the "res gestae” rule.

In Moore v. State, 26 Md. App. 556, 338 A.2d 344 (1975), Judge Moylan, speaking for this Court, indicated that the acceptance of these declarations arise out of two factors which combine to justify the admission of certain classes of hearsay: (1) necessity; and (2) the circumstantial probability of trustworthiness. Necessity arises out of the "superior trustworthiness” of the spontaneous declarations. Dean Wigmore, in discussing the "General Principle of the Exception,” stated it to be as follows:

This general principle is based on the experience that, under certain external circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control, so that the utterance which then occurs is a spontaneous and sincere response to the actual sensations and perceptions already produced by the external shock. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him; and may therefore be received as testimony to those facts. [3 J. Wigmore, Evidence Section 1747.]

Upon examination of the facts surrounding the selection of the appellant’s photograph and the statement made by Mrs. Byrd, we are convinced that the circumstances justify the admission of these facts as a spontaneous response to the occurrence of events. Mrs. Byrd responded with an epileptic seizure to the shock of seeing her friend gunned down. She was then admitted to the hospital where she was treated and released to the police. At police headquarters she was shown an array of photographs from which she selected that of the appellant, and she then made a statement giving a description of the man who ran past her, fleeing from the scene. When the police began to question her she was crying and upset. She composed herself during the interim, and the statement was signed as being true and correct within less than three hours after the perpetration of the double murders. We conclude, therefore, that the statement and the evidence as to the selection of the photograph were admissible as part of the excited utterances surrounding the occurrence of the event.

We also reject the argument that Mrs. Byrd’s in-court repudiation of her written statement and her claim under oath that she was mistaken in her original identification of appellant render the written statement inadmissible. At most, this merely raised issues of fact to be weighed by the jury. They resolved the conflict by finding the appellant guilty beyond a reasonable doubt as to each of the charges against him.

The lapse of time between the commission of the murders (at 2:00 p.m.) until the identification of the appellant by photograph was three hours. Included was the time required to take the witness from the scene to the hospital to administer treatment for her epileptic seizure, to release and transport her to police headquarters, to submit the photos for her identification and to have her select the photograph which she identified. It is indubitable that this sequence of events was contemporaneous with the commission of the crime. The Court of Appeals, in Stevens v. State, 232 Md. 33, 192 A.2d 73, cert. denied, 375 U.S. 886, 84 S.Ct. 160, 11 L.Ed.2d 115 (1963), held that a time lapse of two hours did not make a res gestae statement inadmissible. In approving the admission of such a statement into evidence, the Court quoted with approval from Wilson v. State, 181 Md. 1, 26 A.2d 770 (1942):

Evidence of declarations and acts, which are an immediate accompaniment of the act charged and so closely connected with the main fact as to constitute a part of it, and without which the main fact might not be properly understood, are admissible as a part of the res gestae. The test as to whether a declaration or act offered in evidence is part of the res gestae is whether it was contemporaneous with the commission of the crime and so connected with it as to illustrate its character. Whether such a declaration or act is an immediate accompaniment is tested, not by the closeness of time, but by casual [causal] connection. A definite limit of time cannot be arbitrarily fixed for the reason that so long as the main transaction continues, declarations and acts emanating from it become a part of it. [citations omitted.] [232 Md. at 40.]

Appellant, in his second ground, complains that Mrs. Byrd’s statement should not have been admitted into evidence because the statement was involuntarily made and therefore unreliable. Appellant has cited no authority for the proposition that a witness’ written statement is inadmissible if it is not voluntarily given. Appellant was entitled to and did present to the jury all of the facts surrounding the making of Mrs. Byrd’s statement. The triers of the fact had the responsibility of determining the weight to be given to Mrs. Byrd’s statement and the credibility of her identification of the appellant’s photograph. See Perkins v. State, 11 Md. App. 527, 275 A.2d 517 (1971). As the trial judge pointed out, Mrs. Byrd read the statement, signed it, dated it and stated that it was true and correct at the time it was made. The lurid version of the witness as to the circumstances under which the statement and identification were made was denied by the detective. It was then for the jury to weigh the credibility to be given to the statements made by Mrs. Byrd. The jury chose to believe that the statements made to Detective Danko were true and we decline to disturb their decision.

The Court of Appeals has on a number of occasions considered the admissibility of hearsay testimony by a police officer concerning an out of court photographic identification by a witness. In Basoff v. State, 208 Md. 643, 119 A.2d 917 (1956), the Court stated:

[W]e accept the rule that where it appears that the prosecuting witness had identified the accused prior to the trial under circumstances precluding suspicion of unfairness or unreliability, the prior identification is admissible in evidence. We think it is evident that an identification of an accused made by a witness for the first time in the courtroom may often be of little testimonial force, as the witness may have had opportunities to see the accused and to have heard him referred to by a certain name; whereas a prior identification, considered in connection with the circumstances surrounding its making, serves to aid the court in determining the trustworthiness of the identification made in the courtroom. State v. Frost, 105 Conn. 326, 135 A. 446; Revill v. State, 210 Ga. 139, 78 S.E.2d 12; People v. Branch, 127 Cal.App.2d, 438, 274 P.2d 31. [208 Md. 650-51.]

See Johnson v. State, 237 Md. 283, 206 A.2d 138 (1965); Proctor v. State, 223 Md. 394, 164 A.2d 708 (1960); Judy v. State, 218 Md. 168, 146 A.2d 29 (1958).

III.

Appellant next suggests that the trial judge erred in permitting Mrs. Byrd to be asked whether her testimony before the grand jury was the same as what was contained in the statement she gave on the day of the incident. The answer was "yes.” No other questions concerning her grand jury testimony were permitted to be answered by the witness. Appellant contends the question permitted to be answered was reversible error because it was beyond the scope of either direct or cross-examination and because it violated the secrecy of the grand jury proceedings. We find the first ground specious since it is clear from the record that the question of the credibility of Mrs. Byrd’s statement and identification was thoroughly explored in both her direct and cross-examination. The second ground equally has no merit. Revelation of grand jury testimony, where relevant, in the impeachment of a witness does not violate the secrecy of the grand jury. See Kirk v. Garrett, 84 Md. 383, 35 A. 1089 (1896). The Federal Courts have permitted the introduction of grand jury testimony as substantive evidence where inconsistency results from a witness’ fear or reluctance to testify at trial which subsequently leads to no trial testimony or repudiation of prior statements. See United States v. Myers, 626 F.2d 365 (4th Cir. 1980); Garner v. United States, 574 F.2d 1141 (4th Cir. 1978). We find no error in the decision of the trial court which permitted Mrs. Byrd to be asked the sole question as to whether her testimony before the grand jury was the same as the facts recited in her written statement.

IV.

Appellant next contends that the trial judge erred in permitting appellant to be cross-examined concerning his testimony before the grand jury on the ground that this violated grand jury secrecy. We do not agree. Appellant cites in support of his position Silbert v. State, 12 Md. App. 516, 280 A.2d 55 (1971). We note, however, that Silbert stated in obiter dicta that the policy of secrecy of the grand jury minutes does not extend to the prosecutor, and that he is afforded access to such minutes to assist him at the trial. Such a policy constitutes no reversible error.

The issue raised here as to whether a defendant or any witness may be impeached by his own grand jury testimony appears to be one of first impression in Maryland. It is well established that witnesses may be impeached by prior testimony given under oath. See Gray v. State, 43 Md. App. 238, 403 A.2d 853 (1979) (suppression hearing); Harrod v. State, 39 Md. App. 230, 384 A.2d 753 (1978) (preliminary hearing). See also Moore v. United States, 429 U.S. 1007, 97 S.Ct. 1140, 51 L.Ed.2d 560 (1977); United States v. Malkis, 550 F.2d 180 (4th Cir. 1976). Other jurisdictions have extended this rule to include grand jury testimony. See State v. Piskorski, 177 Conn. 677, 419 A.2d 866 (1979); Gregory v. United States, 393 A.2d 132 (D.C. App. 1978); People v. DiNapoli, 316 N.Y.2d 622, 265 N.E.2d 449 (1970).

8 Wigmore, Evidence [McNaughton Rev. Ed. 1961] Section 2363, unequivocally states the rule to be as follows:

It is now universally conceded that a witness may be impeached in any subsequent trial, civil or criminal, by self-contradictory testimony ... given by him before the grand jury. [Id., at 739.]

We think the issue here raised is disposed of by Kirk v. Garrett, supra, where the Court of Appeals found no violation of the grand juror’s oath of secrecy when a grand juror was called to prove that a witness swore in the grand jury differently from what he had sworn before the petit jury.

V.

Appellant further contends that the trial court erred in denying appellant’s motions for judgments of acquittal because of the insufficiency of the evidence against him. We have carefully reviewed the record in this case and find that after viewing the evidence in the light most favorable to the prosecution, there was no abuse of discretion by the trial judge in denying the motions for judgment of acquittal and there was more than sufficient evidence to support the jury’s determination that the appellant was guilty beyond a reasonable doubt of each of the charges brought against him. Tichnell v. State, 287 Md. 695, 415 A.2d 830 (1980).

VI.

Appellant in his brief has set out several remarks of the prosecutor in his closing argument which he argues were prejudicial. We note no objection was made to any of these remarks at trial and the issue was first raised at appellant’s motion for a new trial. As a result, the trial court was deprived of any opportunity to take such remedial steps to correct the prejudice, if it did in fact exist. The failure to object has not preserved this issue for appellate review. See Maryland Rule 1085; Holbrook v. State, 6 Md. App. 265, 250 A.2d 904 (1969). Appellant did not raise this issue until a hearing on a motion for a new trial. At that hearing, the trial court considered appellant’s arguments and found that the remarks were not prejudicial. In light of this, we find no exceptional circumstances which would require us to overrule the decision of the trial court in these matters. See Couser v. State, 36 Md. App. 485, 374 A.2d 399, aff'd, 282 Md. 125, 383 A.2d 389, cert. denied, 439 U.S. 852, 99 S.Ct. 158, 58 L.Ed.2d 156 (1978).

VII.

In the course of the trial, one Alan Glass was accused by one of the state’s witnesses of being the man who committed these murders. Appellant suggests that it was the court’s responsibility to summons Glass and produce him at the trial. This contention is too ridiculous to merit answer. The record does not disclose any effort by the defendant or his counsel to summons Glass. It actually discloses that the defendant specifically refused an opportunity to request a summons for Glass. We find no obligation on the trial court to act as co-counsel for the defense or prosecution.

VIII.

Finally, appellant states a long list of grievances against his trial counsel and contends that the trial court erred when it refused to grant a new trial because of the errors and inadequacies of counsel. An accused is entitled to a new trial because of inadequate representation of counsel only when that representation is so deficient as to go to the very fairness of the trial. Anderson v. State, 3 Md. App. 362, 239 A.2d 579 (1968). Whether to grant a new trial on these grounds is discretionary with the trial court, Turner v. State, 45 Md. App. 168, 411 A.2d 1094 (1980), and such a ruling will not be disturbed on appeal except for the most extraordinary and compelling reasons. Couser v. State, supra. The trial court found that defense counsel was totally prepared and totally committed to appellant’s defense and we find nothing in the record to contradict that conclusion.

Judgments affirmed, costs to be paid by appellant.


author: Weant, J.,

text:
    PRESTON AYARS, JR. v. JEAN R. AYARS
    [No. 99,
    September Term, 1981.]

      Decided November 4, 1981.

      The cause was argued before Lowe, Couch and Weant, JJ.

      Richard Eli Jackson for appellant.
    No brief or appearance by appellee.
   Weant, J.,

delivered the opinion of the Court.

The court action in this dustup commenced on 2 October 1979 when Jean R. Ayars, appellee, filed a bill of complaint for divorce a vinculo matrimonii and other relief against Preston R. Ayars, Jr., appellant. A decree of divorce dated 15 December 1980 was filed on 16 December 1980 in the Circuit Court for Cecil County. In addition to granting the divorce to Jean R. Ayars as requested, the decree held that the real property of the parties is marital property directing that it be sold at public sale and that the proceeds be divided 75% to Jean R. Ayars and 25% to Preston R. Ayars, Jr. It is from this decree that this appeal was taken.

Although the appellee has filed no brief the appellant has set forth what is titled an "Agreed Statement of Facts.” Since we have heard nothing to the contrary from the appellee, we assume that the facts contained therein are correct. They are reproduced below.

The parties were married on July 30, 1954; they separated on June 24, 1978 and executed a marital separation and settlement agreement on June 27, 1978. Among other assets, they jointly own an approximately 1 acre parcel of real property, located near Elkton, Maryland and improved by a dwelling. Paragraph 4 of the separation agreement conferred upon Appellant the right to reside in the real property until "the parties agree on a disposition of same or until the house is sold.” (E-5) The parties have never agreed on a disposition of the real property nor has it been sold.
The said real property was inherited, during the marriage of the parties, by Appellant Mr. Ayars and his sister, as co-tenants. Later, during the marriage and before the separation, Appellee Mrs. Ayars purchased the one-half share of Appellant’s sister for $11,607.00, which sum Appellee raised by selling stocks which she had inherited. Mr. and Mrs. Ayars then took title as tenants by the entireties and have held the property as tenants by the entireties at all times since.
After the parties took title as tenants by the entireties, and prior to their separation, they expended a total of $42,360.00 on renovations to the dwelling on the real property, which they occupied as their home. This amount was raised by way of bank loans evidenced by notes signed by both parties. During the marriage and prior to the separation, Mrs. Ayars applied $27,813.00 from the sale of her inherited stocks to reduction of the renovation loans. As of the date of separation the loan balance was $2,862.34; as of the date of trial and of the Decree the loan balance was $1,862.34.

It is argued by the appellant that the circuit court erred in apportioning to the appellee 75% of the proceeds from the judicial sale of the jointly owned real property of the parties. We agree.

During the marriage the approximate 1 acre of land in question was inherited by the appellant and his sister as co-tenants. Thereafter, before the separation, the appellee purchased the sister’s one-half share for $11,607.00 from money which she raised by selling stock which she also had inherited.

At this point the property was directly traceable to inheritance by both parties and was not marital property by reason of subtitle 6A of the Courts and Judicial Proceedings article of the Annotated Code of Maryland, subsection 3-6A-01 (e) which defines marital property as "all property, however titled, acquired by either or both spouses during their marriage. It does not include property acquired prior to the marriage, property acquired by inheritance or gift from a third party, or property excluded by valid agreement or property directly traceable to any of these sources.” (Emphasis added). However, they then took title as tenants by the entireties and have held the property in that manner ever since. With this act the property became marital property by reason of a gift, each to the other. After the acquisition of the realty as entirety property and prior to the separation, the parties spent a total of $42,360.00 on renovations to the residence situated on the 1 acre. They raised this amount by means of bank loans. The appellee applied $27,813.00 to the reduction of the loan, having acquired this money by way of sale of her inherited stocks.

The question now arises as to the comparative interests in the real property of the parties. It has long been held in the State of Maryland that payments during the marriage by one spouse toward the purchase or improvement of real property owned as tenants by the entireties are presumed to be gifts to the other spouse. Klavans v. Klavans, 275 Md. 423, 427, 341 A.2d 411, 416 (1975); McCally v. McCally, 250 Md. 541, 545, 243 A.2d 538, 541 (1968); Anderson v. Anderson, 215 Md. 483, 488-89, 138 A.2d 880, 883 (1958); Brell v. Brell, 143 Md. 443, 450, 122 A. 635, 637 (1923); Reed v. Reed, 109 Md. 690, 692-93, 72 A. 414, 415 (1909); Young v. Young, 37 Md. App. 211, 220, 376 A.2d 1151, 1157 (1977); DiTommasi v. DiTommasi, 27 Md. App. 241, 255, 340 A.2d 341, 349 (1975); Klavans v. Klavans, 23 Md. App. 144, 146, 326 A.2d 26, 27 (1974). In this record we find nothing to rebut this presumption and hence the moneys put into the property towards purchase and renovations by the appellee should be considered as.gifts to the appellant. In fact we are told that the parties do not dispute that each owns an undivided one-half interest in the property. Consequently, we arrive at the determination that the trial court erred in its division of the real property of the parties, which we assume was done pursuant to subsection 3-6A-04. We conclude that each owns an undivided one-half interest as tenants in common.

Had the chancellor wanted to take into consideration the contributions of the parties, as is apparent in his 75-25% award of the proceeds of the sale of the property, he could have done so by a monetary award under 3-6A-05 (b). This, however, requires the determination of the value of the marital property and the grant of a specific amount. While it is not inconceivable that this might have ultimately forced the sale of the real property to satisfy the monetary award, the circumstances of this case do not accommodate the accomplishment under 3-6A-04 of the court’s manifest goal of adjusting the equities and rights of the parties.

Although the court was correct in its holding that the property in question should be classified as marital property under our class dialect, his determination of the ownership interest was incorrect and we shall remand for disposition under Courts and Judicial Proceedings Article of the Annotated Code of Maryland, Section 3-6A-04 in accordance with this opinion.

Reversed and remanded.

Costs to be paid by the appellee.